KANCHANIYA Vs. SHIV RAM

JUDGEMENT

(1.) This appeal by special leave is directed against the judgment of the High Court of Madhya Pradesh dated October 6, 1980 in M.P. No. 12/ 73 arising out of proceedings'initiated by Shiv Ram, respondent No. 1 herein, against Malkhan under S. 248(1) of the Madhya Pradesh Land Revenue Code, 1959 (hereinafter referred to as 'the Code'), for his ejectment from 19 Bighas 8 Biswas of land in village Juara, District Morena, Madhya Pradesh, on the ground that he was in unauthorised possession of the said land.

(2.) In village Juara, District Morena, falling in the former Gwalior State, there is a temple of Shri Ram Jankiji. 78 Bighas 17 Biswas of agricultural land had been given, by way of maufi, for the temple by the ruler of the former Gwalior State. Vasudev Rao, father of respondent No. 1, was the Pujari of the said temple and he was described as the Maufidar in the revenue records. The said maufi grant was revoked and the maufi land was handed over to the Department of Aukaf as Government property vide Circular dated August 13, 1934 of the Government of Gwalior State. By order of the Commissioner (Maufi and Aukaf), Government of Gwalior State, dated December 10, 1935, mutation was made of the said agricultural land as Government property and its management was handed over to the Pujari, Vasudev Rao for the purpose of management through Parwana issued in his favour. On the death of Vasudev Rao, the name of respondent No. 1 was mutated in the place of Vasudev Rao by order of the Collector of Morena dated March 26, 1960. Out of the said agricultural land, 19 Bighas 8 Biswas was given by Vasudev Rao to-Malkhan for cultivation and he continued to cultivate the same even after the death of Vasudev Rao. Malkhan has died and the appellants herein are his legal representatives.

(3.) In 1967, respondent No. 1 moved an application under S. 248(1) of the Code before the Tehsildar, Juara wherein it was alleged that Malkhan was in unauthorised possession of the said 19 Bighas 8 Biswas of land and it was prayed that he may be evicted from the same. On the said petition, the Tehsildar initially passed an order for ejectment against Malkhan treating him as a trespasser. The said order was set aside on appeal and the matter was remanded for reconsideration. Thereafter, the Tehsildar recorded evidence and passed an order rejecting the said application of respondent No. 1 and holding that land has been given by respondent No. 1 to Malkhan on lease for his life and that the said lease was still effective and, therefore, Malkhan was not in unauthorised possession of the land. The said order of the Tehsildar was affirmed in appeal by the Sub-Divisional Officer, Juara by his order dated April 7, 1971, Second appeal filed by respondent No. 1 was allowed by the Additional Commissioner, Gwalior Division, Gwalior, by his order dated February 22, 1972 whereby it was held that the priest of the temple could only manage the affairs of the temple and he could either himself cultivate the land of the temple or get the same cultivated by any other person but he could not change the ownership of the temple and since the priest is not the land-owner, he has no right to lease out the land of the temple to any other person and the lease given by him is meaningless and illegal and that Malkhan did not get any benefit from his statement that father of respondent No. 1 had given the lease to him and that he had also got a lease for eight years again after the Code came into effect in the year 1959. It was held that the said lease should be deemed to be illegal and ineffective since the land in question is Aukaf property. Aggrieved by the said order of Additional Commissioner, Malkhan filed a revision before the Board of Revenue which was allowed by a Member of the Board of Revenue by order dated September 27, 1972. It was held that the State Government had given the land for worship and service in the temple and that the intention was that either the priest of the temple should cultivate the land or get it cultivated by somebody else and to carry on the expenses of the temple with its income. The learned Member of the Board of Revenue also held that father of respondent No. 1 had allotted the land to Malkhan for his lifetime and that under the authority of the said patta, Malkhan is in possession and has made improvements on the land and that respondent No. 1 had regularly received Rs. 100/ - annually towards the land revenue and also passed over its receipt. It was observed that respondent No. 1 has never cultivated the land and had no arrangement for cultivation and even if the land was given in his possession, he would give the same to somebody else. The Board of Revenue was of the view that though Malkhan had no interest in the disputed land it would not be just that he is dispossessed for the simple reason that there is possibility of some more income to respondent No. 1. Against the said order of the Board of Revenue, respondent No. 1 filed a writ petition in the High Court which was allowed by a learned single Judge by judgment dated October 6, 1980. Before the High Court, it was claimed, on behalf of the appellants, that since Malkhan had been inducted as a sub-tenant by Vasudev Rao and by respondent No. 1 after him, their possession was not unauthorised and as such they were not liable to be evicted in proceedings under S. 248 of the Code. Another contention that was raised before the High Court was that the land in dispute being Government land on his own showing, respondent No. 1 had no right to maintain an application under S. 248(1) of the Code. It was lastly urged that the land in dispute was endowed to temple of Shri Ram Jankiji and as such deities of Shri Ram Jankiji are Bhumiswamis of the suit land and therefore, ejectment proceedings could be started only before the Sub-Divisional Officer under S. 168(4) of the Code. The High Court rejected all the three contentions. As regards the questions of maintainability of an application for ejectment under S. 248(1) of the Code, the High Court, relying on an earlier Division Bench decision of the same Court in Thakur Pancham Singh v. Mahant Ramkishandas, AIR 1972 Madh Pra 14 held that the application of the Pujari was maintainable under S. 248(1) of the Code and the learned Member, Revenue Board was wrong in treating the possession of Malkhan as authorised. The High Court further held that S. 168(4) of the Code was not applicable to the present case because the land in dispute was Aukaf land and neither the deities of Shri Ram Jankiji nor the respondent No. 1 could be regarded as the Bhumiswamis thereof. The High Court, therefore, allowed the writ petition filed by respondent No. 1 and restored the order passed by the Additional Commissioner dated February 22, 1972 and ordered that the appellants be ejected from the land in dispute in accordance with the provisions of S. 248 of the Code.