RAMPRATAP Vs. BOARD OF REVENUE

JUDGEMENT

(1.) THE above mentioned writ petitions are decided by one single order, since same points of law have been raised in each of the writ petitions.

(2.) SO far as the ten writ petitions filed against the judgment dated April 23,1991, passed by the learned Board of Revenue, Ajmer, are concerned, the facts of Writ Petition No. 3059 of 1991 (Birdha vs. Board of Revenue & Others) are mentioned hereunder: It has been stated that on behalf of respondent No. 4, temple of idol of Shri Srinathji/goverdhan Nathji, situated at Nathdwara, District Udaipur city, a suit was filed, regarding land comprised in Khasra No. 9, situated in Village Kankara, Tehsil Pipalda, which stood in "muafi" and "khudkasht" of the said idol. It was stated in the plaint that, on the date of resumption, the above mentioned land was entered as khudkast"land in the settlement record and the said idols of Shri Srinathji/goverdhanji have become khatedar tenant of the same. It was further stated in the plaint that the idol was a perpetual minor and that the petitioner and others could not acquire khatedari rights in the lands of the idol. The Revenue Officers had unauthorisedly and without giving any information to respondent No. 4, entered the name of the petitioner as khatedar tenant of the lands comprised in Khasra No. 9, measuring 14 Bighas and 16 Biswas, which was illegal and ineffective against the respondent No. 4, as nobody was entitled to get rights in the lands of idol. It was also stated that the petitioner is in possession of the land as trespasser and is not giving up the possession. The petitioner contended in the written statement that respondent No. 4 had no right to file the suit. It was further contended that respondent No. 4 was not holding disputed land in his khudkast", nor was he in possession of the same, at the time of resumption of the 'muafi'. At that time, the petitioner was in possession of the disputed land from the times of ancestors. It was also contended that respondent No. 4 never remained Khatedar tenant of the disputed land. The petitioner-defendant and his ancestors have remained in possession of the disputed land for more than 20 years as owners and their title have already perfected by adverse possession. The suit, filed by respondent No. 4, was dismissed vide order dated March 29, 1986, passed by the learned Sub-Divisional Officer, Kota. However, the appeal filed by respondent No. 4 was allowed by the Revenue Appellate Authority vide its order dated June 2, 1988. The petitioner filed second appeal before the Board of Revenue, which was dismissed vide Anx. 5 dated April 23, 1991. The other three writ petitions have been filed against the judgment dated January 12, 1989, (Anx. 4) passed by the learned Board of Revenue, Ajmer. Therefore, the facts of Writ Petition No. 1381 of 1989 (Rampratap and another vs. Board of Revenue and others) are stated as under: A suit was filed on behalf of Murti Shri Bare Mathreshji, situated at Kota, with regard to agricultural land, bearing Khasra nos. 47, 49, 53,55, 167 and 643, measuring 58 Bighas and 4 Biswas, situated in village Nareda, Tehsil Baran. It was stated in the plaint that idol, being perpetual minor, became khatedar by virtue of Section 23 of the Rajasthan Land Reforms and Resumption of Jagir Act, 1952 (for brevity, 'the Act, 1952'), therefore, these lands should be deemed to be khudkast" of the idol, even though not cultivated personally by idol and notwithstanding the fact that the petitioner was not servant of respondent No. 2, but was paying rent for cultivation to the idol. It was further stated that the petitioner defendant stopped paying rent after May, 1979 and started paying land revenue to the State Government and, therefore, became trespasser and was liable to be evicted. In the written statement, the petitioner-defendants contended that the lands were cultivated by them under their individual rights and not on behalf of respondent No. 4. It was also stated that the disputed lands cannot be deemed to be "khudkast" of the idol and that the petitioner-defendants have been cultivating these lands for the last 35 years and are in possession of the same. The suit of respondent No. 4 was decreed by the Assistant Collector, Kota, vide his order dated December 23, 1980 (Annx. 2), holding that the petitioners shall be deemed to be cultivating the land on behalf of the idol. Thus, by implication, it was held that the disputed lands will be deemed to be "khudkast" lands of the idol and that the petitioners were trespassers. The appeal filed by the petitioners before the Revenue Appellate Authority was dismissed vide order dated July 17, 1981 (Anx. 3 ). The second appeal filed by the petitioners was also dismissed by the judgment dated January 12, 1981, passed by the Board of Revenue, Ajmer. The other set of three writ petitions, bearing Nos. 1381/89, 1725/89 and 2692/89, was also filed against the judgment dated January 12, 1989, passed by the Board of Revenue, Ajmer. In these writ petitions, the suits were filed on behalf of respondent No. 2, i. e. , Moorti Shri Bare Mathreshji and the facts are same, as stated above. Writ Petition No. 3182 of 1989 has been filed against the judgement dated March 31, 1989, passed by the Board of Revenue, Ajmer, which also arises out of the suit filed on behalf of respondent No. 2 plaintiff, Moorti Mandir Shri Bare Mathreshji, and the facts are same, as stated above. Another three writ petitions have been filed against the judgement dated September 22, 1989, passed by the learned Board of Revenue, Ajmer. The facts of Writ Petition No. 2105 of 1990 are stated as under : A suit was filed on behalf of Moorti Shri Chhote Mathuranathji and Reshik Shiromaniji, Kota, respondent No. 2, in the Court of Assistant Collector, Kota, wherein it was prayed that correction of entries in the revenue records be made and petitioners be ejected from the disputed land. In the written statement, it was contended by the petitioners/defendants that after resumption of the 'muafi', all the rights of the idol have been extinguished and by operation of law, the petitioners have become khatedar and they cannot be ejected from the land. The suit filed by respondent No. 2 was decreed vide order dated October 29, 1987 (Annx. 3 ). An appeal filed against the same, before the Revenue Appellate Authority was also dismissed vide order dated May 31, 1988 (Anx. 4) and the second appeal filed by the petitioners was also dismissed vide judgement dated September22, 1989, passed by the learned Board of Revenue, Ajmer.

(3.) WE do not find any force in the contention of the learned counsel for the petitioners that the disputed lands,which were "muafi" of the various idols were resumed from July 1, 1985, after coming into force of the Jagirs Act and that the rights of idols/temples were extinguished, as the lands were not held in the nature of "khudkasht". WE have already discussed above in detail to show that the land was held by idols/temples as "khudkasht" and the idols, being perpetual minor, cannot be expected to cultivate the land personally. A Division Bench of this Court in Nathu and Others vs. Board of Revenue and Others (D. B. Civil Writ Petition No. 1485 of 1992), decided on April 7, 1992, held that since deity of temple is a perpetual minor, the land shall remain "khudkasht", even though it may be cultivated through anyone. WE have carefully gone through the Full Bench judgement of the Board of Revenue in Shivram's case (supra) as also the decision of this Court in the matter of Ramlal and another (supra) and find no force in the contention of the learned counsel for the petitioners that the Full Bench decision of the Board of Revenue in Shivram's case (supra) has been impliedly over-ruled by a decision of this Court in Ramlal and another (supra ). The learned counsel for the petitioners have further pointed out that since the land was resumed and the rights of the idols/temples stood extinguished, therefore, they were not entitled to file suits against the petitioners and that the matter under the provisions of Section 23 (2) of the Jagirs Act, should have been referred to the Jagir Commissioner, who, after holding prescribed enquiry, could pass such order as he deems fit, regarding the disputed land. WE also do not find any force in this contention, as the suits have been filed to decide the inter-se-dispute between "muafidar" and private persons. It may also be pointed out that provisions of sub-section (2) of Section 23 of the Jagirs Act will apply only when there is dispute between the State and "muafidar/jagirdar". Therefore, question of its application to the dispute between the petitioners and idols does not arise. It may also be pointed out that the petitioners, who are cultivating in the capacity of "zaily". could not get any khatedari rights under the provisions of Section 15 of the Act, 1955, since they were not recorded as "khatedar" in the revenue record. Under the provisions of Section 19, no khatedari rights could accrue to the petitioners, keeping in view the provisions of Sections 45 and 46 of the Act, 1955. Section 45 imposes restrictions on letting and sub-letting on holder of "khudkasht" land and Section 46 clarifies the position that these restrictions shall not apply in case of a minor. The idol, being perpetual minor, evidently, these restrictions do not apply in the case of the idol. Same view was taken by this Court in Mohanlal vs. Board of Revenue & Others (D. B. Civil Writ Petition No. 2189 of 1990), decided on August 13, 1991.