BANSHI Vs. STATE OF M P

JUDGEMENT

(1.) PRESENT appeal has been preferred by the plaintiff/appellant, being aggrieved by the judgment and decree dated 24.11.1997 passed by Additional District Judge, Morena. He filed civil suit for declaration of title and permanent injunction with respect to agricultural land situated at village Jigni bearing survey nos. 2,3,4 and 6 area three bigha 15 biswa. He claimed the right of sub-tenancy from the time of his father which was created by Purshottam Pujari. Since then, the plaintiff alleged that sixty years have elapsed. Bhajna was cultivating the land and paying land revenue to Purshottam Pujari. Thereafter, Banshi was cultivating the land. Thereafter, appellant succeeded to Bhajna. He has acquired the right of occupancy tenant as per the M.P. Land Revenue Code by operation of law. It is alleged that after the death of Purshottam Pujari name of Jagannath Prasad was mutated. Later on name of Yadvendra has been recorded in the revenue record. Jagannath Prasad initiated the proceedings before the Tahsildar, Morena under section 248 of the M.P. Land Revenue Code for dispossession of the plaintiff. Order of ejectment was passed by the Tahsildar and fine of Rs. 200/- was imposed. The matter travelled upto the Board of Revenue and the plaintiff lost. It is alleged that land belonged to Aukaf department. Defendant contested the suit and contended, that disputed land is belonging to the Government and was given to a temple of Mahadev. There was no right with any Pujari to create any lease. The trial Court dismissed the suit recording the finding that the land is of Aukaf department and was given to a temple for its upkeep and no right of tenancy can be acquired. Appellate Court has affirmed the finding recorded by the trial Court in its judgment and decree. This second appeal has been admitted on the following substantial question of law:

(2.) LEARNED counsel appearing for the appellant has mainly urged that plaintiff being in settled possession injunction ought to have been granted not to dispossess. He placed reliance on a Division Bench decision of this Court in the case of Gajendra Singh S/o Ramsingh v. Mansingh and others [2000 (2) MPLJ 316. He urged that even if no right can accrue on the Aukaf land, Purshottam Pujari is not competent to create any such right. Learned counsel for the respondent submitted that a direction issued in the case of Kanchania v. Shivram and others [1992 RN 194] ought to have been passed. In the case of Kanchania, the Apex Court has clearly held that Pujari was not competent to create the rights on the land of the Aukaf department given for the management of Devsthan. Division Bench of this Court in the case Panchamsingh v. Kishandas Guru Ramdas and others [1971 JLJ 588 = AIR 1972 MP 14] has taken a view that application filed by Pujari is maintainable under section 248

(3.) LEARNED counsel made a last submission regarding issuance of direction to Aukaf department of the Government of M.P. to consider whether the appellant can be permitted to cultivate the said land. It is open for the appellant to approach the Aukaf department for such a relief.