BHAGWAN Vs. SHRI VISHNU MANDIR, DEWAS

JUDGEMENT

(1.) THE foundational facts fortunately are not in controversy At Vishnugalli of Dewas, there is a temple adorned by Idol of Lord Vishnu. Land Survey Nos. 877, 880 and 886 to 8 0 total area 6.30 acres are attached with the temple and held by the idol as bhumiswami. The Pujari Ramdas used to manage the property and was next friend of the idol. The land used to be let out to late Nandram, the father of the Defendant Appellant, year by year, for cultivation. The rent payable by Nandram used to be paid in two instalments. Ramdas Pujari acting for the idol initiated proceedings under Section 168 of M. P. Land Revenue Code before the revenue Courts alleging that 18 -5 -1960 was the last occasion when late Nandram was let out the land for one year and did not vacate the land on expiry of the lease. The proceedings before the revenue Court finally terminated with the order of the Board of Revenue dated 24 -9 -64 upholding the order of the Collector dated 31 -5 -1963, rejecting the application filed by Pujari Ramdas, holding that late Nandram was a lessee inducted by Ramdas Pujari but any ground for ejectment of lessee under Section 168 of the Code was not available, the lease having not been determined nor any of the conditions of the lease having been contravened. Copies of the orders of the Board of Revenue and the Collector have been filed before the lower appellate Court under order 41 Rule 27 C. P.C. The present Defendant Bhagwan is the son of late Nandram and is in possession of the suit land.

(2.) THIS suit has been filed on 10 -11 -1970 by the idol through Pujari Ramdas alleging that Nandram having expired in February 1970 the Defendant/Appellant has entered into unauthorised possession of the land with whom the Plaintiff does not have any arrangement of any kind. The Plaintiff prayed that it be adjudged that the possession of the Defendant was unauthorised and that the possession be restored to the Plaintiff by evicting the Defendant and further that a decree for mesne profits at the rate of Rs. 5,000/ - per annum from the date of the suit be awarded. The Defendant in his written statement set up the plea that on the death of Nandram the Defendant and his mother come to be in possession of the land in the capacity of the legal representatives of late Nandram; such possession was with the consent of the Plaintiff who received rent also from the Defendant. It was denied that Late Ramdas had executed a Kabuliat on 18 -5 -1960 and that he was in possession only under one year's lease with effect from 18 5 -1960. The jurisdiction of the Civil Court to try and hear the case was objected to by submitting that the matter lay within exclusive jurisdiction of the special Additional Officer. The Two Courts below have held that the civil Court did have jurisdiction to try the case. The possession of the Defendant/Appellant was found to be unauthorised. Decree for ejectment along with mesne profits at the rate of Rs. 1000/ - per annum from the date of the suit was granted. The lower appellate Court while affirming the decree of the trial Court proceeded on the reasoning that the last lease dated 18 -5 -1960 in favour of Nandram had expired and the Defendant/Appellant did not inherit any leasehold rights from late Nandram. The appellate Court held that subsequent to the death of Nandram payment of rent through money order by the Defendant/Appellant to Pujari Ramdas was proved but mere payment of rent in the absence of a contract of lease between the Defendant/Appellant and Pujari Ramdas did not have the effect of creating tenancy. It also held that the idol, the Bhumiswami of land, being a person under physical disability, the Defendant's father did not acquire status of an occupancy tenant.

(3.) THE learned Counsel for the Defendant/Appellant has made two submissions. Firstly, it is contended that in view of the provisions contained in Section 168 read with Clause (h) of Section 257 of M. P. Land Revenue Code, 1959, the civil Court had no jurisdiction to try the case and hence the decree passed by the Courts below is without jurisdiction. In the alternative it is submitted that assuming the Civil Court could try the case, the Defendant Appellant should have been held to be holding the land as lessee of the land and his rights would be deemed to have devolved upon the Defendant/Appellant, lease -hold rights being heritable; and more so because the Defendant/ Appellant paid the rent to Pujari Ramdas which was accepted by him and even in the absence of creation of a fresh lease in favour of the Defendant/ Appellant, it cannot be deemed that the Pujari could claim back possession of the land from the Defendant/Appellant under the rights inherited by him from his late father. The relevant part of Section 168 and Clause (h) of Section 257 of M. P. Land Revenue Code, 1959 are reproduced hereunder: