MOHAN LAL Vs. STATE OF J&K

JUDGEMENT

(1.) THIS is an application for an appropriate writ with a view to quash ­ing an order of the Revenue Minister dated 16 -9 -66 and arises in the following circumstances.

(2.) 9 Kanals and 12 marlas of land comprised in khasra No. 563 min situate in Taraf Tajwal, Kathua, originally belonged to Chain Singh, Jodh Singh and others. The land revenue was assigned to Shri Raghu -nath Ji temple situate in the same village. The Big Landed Estates Abolition Act (hereinafter to be referred to as the Act) came into force in the year 2007, and under the provisions of that Act the proprietors could retain only a unit of 182 kanals of land and were required to make a selection of their unit under S. 14 of the Act In the instant case the proprietors did not choose to include the land in dispute in the unit of 182 kanals retained by them. According to S. 5 of the Act where a par ­ticular land on the date the Act came into force was in possession of any person as a tiller, the same was to be transferred to him. Where no person was in possession of such land in Kharif 2007 the land was to escheat to the State. The then Tehsildar Kathua, Th. Sehdev Singh, by virtue of mutation No. 971 dated 24 -10 -2009 (Bikrami) mutated this plot in favour of the temple Shri Rughnath as having acquired title by adverse possession by remaining in possession of the land in question. This muta ­tion was made by the Tehsildar on the basis of statements made before him, by two of the proprietors namely Amar Singh and Jodh Singh as also the statement of Mst. Bagh Dai, mother of the petitioners and wife of the petitioners, father Daya Ram, who was admittedly a Pujari of the temple looking after this land. The Numberdar of the village also gave a statement to the same effect. Two months later, i.e., on 10 -12 -2009 the Tehsildar without any sufficient reasons and without issuing notice to the temple in whose favour the previous mutation was made, was of the opinion that as nobody was in possession of the land in question in kharif 2007, the land escheated to the State and he accordingly directed mutation of the land to be attested in favour of the State. Thereafter the petitioners moved a revision to the Revenue Commr. with the prayer that the order of the Special Tehsildar may be recommended to be set aside by the Financial Commr. on a reference to be made by the Commr. In this revision the petitioner did not make the State a party and impleaded the Mandir through one Vidya Dhar styling him as the Pujari of the temple. Vidya Dhar who is the sole respondent in this case entered into a compromise with the petitioner under which he admitted the claim of the petitioner and stated that he had no objection if the land was mutated in favour of the petitioner who had been tilling it ever -since 2000. The learned Revenue Commr. by his order dated 19 -8 -57 made a refe ­rence to the Financial Commr. for vacating the mutation made by the Special Tehsildar dated 10 -12 -2009 and further recommending that the mutation be made in the name of the petitioner. This revision was heard by the Financial Commr. who, however, refused to act merely on the basis of the compromise. Nevertheless he took into consideration the statements of Vidya Dhar and of the petitioner, set aside the mutation of the Special Tehsildar dated 10 -12 -2009 and directed mutation to be made in the name of the petitioner This order was passed by the Financial Comrnr. on 23 -12 -57 by which he accepted the reference. Thereafter the respondents who alleged themselves to be in possession of the land as allottees moved a revision petition before the Revenue Minister for setting aside the order of the Financial Commr. This revision was filed under the provisions of S. 30A of the Act. The learned Revenue Minister called a detailed report from the Dy. Commr. regarding the history of the case and the circumstances leading to the disputed mutation and allowed the revision set aside the order of the Financial Commr. and directed the mutation to be made in the name of the State. In other words the Revenue Minister restored the order of the Special Tehsildar dated 10 -12 -2009.

(3.) ONE patent error of law which the Revenue Minister committed in setting aside the order of the Financial Commr. was that although the effect of the restoration of the order dated 10 -12 -2009 by directing mutation in the name of the State was to wipe out the previous mutation dated 24 -10 -2009 which was in favour of the temple, yet the Revenue Minister did not give any notice to the temple and set aside the order without any notice to the temple. The learned counsel for the parties have placed before us attested copies of the mutation and the report of the Dy. Commissioner which form the basis of the order of the Revenue Minister. We may incidentally mention here that by the time the Revenue Minister sent for a report from the Dy. Commissioner, the same Th. Sehdev Singh happened to occupy the position of the Dy. Commissioner. The Dy. Commissioner in his report had pointed out that from the khasra Girdawari entries it would appear that nobody was in possession of the land from 2005 to 2010 and the land remained either Banjar Kadim or Banjer Gair mumkin. At present we are not concerned with the merits of the report submitted by the Dy. Commissioner because we feel that the order of the Revenue Minister suffers from two clear infirmities. In the first place there appears to be no sufficient ground at all why the Special Tehsildar should have reviewed his own mutation dated 24 -10 -2009 which was based on the statements of respectable persons including the mother of the petitioner himself and some of the ex -proprietors. The Special Tehsildar gave no reason whatsoever for distrusting the testimony of these persons and appears to have based his order purely on speculation. Secondly the claim of the petitioner could not be entertained either by the Financial Comr.or by any authority because the petitioner being a Pujari of the temple and having inherited that status from his father Daya Ram could not have put forward a title adverse to the temple. In Sree Ishwar Sridhar Jew Vs. Sushila Bai, AIR 1954 SC 69, 73 their Lordships of the Supreme Court made the following observations: - "If a shebait by acting contrary to the terms of his appointment or in breach of his duty as such shebait could claim adverse pos ­session of the dedicated property against the idol it would be putting a premium on dishonesty and breach of duty on his part and no property which is dedicated to an idol could ever be safe. The shebait for the time being is the only person competent to safeguard the interest of the idol, his possession of the dedicated property is the possession of the idol whose shebait he is, and no dealing of his with the property dedicated to the idol could afford the basis of a claim by him for adverse possession of the pro ­perty against the idol. No shebait can, so long as he continues to be the shebait, ever claim adverse possession against the idol. Neither Nagendra nor the appellants who derive their title from the auction sale held on the 9th December, 1936 could there ­fore claim to have perfected their title to the premises No. 41 -A Grey street by adverse possession. The second contention of the, appellants also therefore fails."