Rajasthan High Court - Jodhpur
Shri Narshinghdwara Meetharam Ji Sthan ... vs Magna on 29 May, 2020
Bench: Indrajit Mahanty, Pushpendra Singh Bhati
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
D.B. Civil Special Appeal No. 650/2018
State Of Rajasthan Through The Tehsildar, Girwa, District
Udaipur.
----Appellant
Versus
1. Shri Narsinghdwara Meetharamji Sthan Deh Shahar,
Udaipur, Near Gulab Bag, Raoji Ka Hata, Udaipur Through
Mahant Ramchandra Das.
2. Shantilal S/o Shri Kanhaiyalal Mehta, R/o 98/113,
Bhupalpura, District Udaipur
3. Mahesh Chandra S/o Shri Madan Mohan Sharma, R/o
123, Kharol Colony, Fatehpura, District Udaipur
4. Dharampal S/o Shri Lakshmichand Dembla, R/o Inside
The Street Of Sugandh Meera Hotel, Sardarpura, District
Udaipur.
5. Urban Improvement Trust, Udaipur Through Its Secretary,
Urban Improvement Trust, Udaipur
6. Magna S/o Shri Unkar Alias Omkar Dangi, R/o
Shobhagpura, Tehsil Girwa, District Udaipur
7. The Revenue Appellate Authority, Udaipur.
8. The Board Of Revenue For Rajasthan, Ajmer
----Respondents
Connected With
D.B. Civil Special Appeal No. 97/2018
Ashok Singh Chouhan Son Of Late Shri Bheru Singh, aged about
68 years, By Caste Rajput, Resident Of Rani Road, Udaipur.
----Appellant
Versus
1. Board Of Revenue, Rajasthan, Ajmer
2. Revenue Appellate Authority, Udaipur
3. Deputy District Collector, Girwa, Udaipur
4. Magna Son Of Shri Unkarji, By Caste Dangi, Resident Of
Shobhagpura, Tehsil- Girwa, District Udaipur.
5. Shantilal Son Of Shri Kanhaiyalal Mehta, 98/113,
Bhupalpura, Udaipur.
6. Mahesh Chandra Son Of Shri Madan Mohanji Sharma,
Resident Of 123 Kharol Colony, Udaipur.
7. Urban Improvement Trust, Udaipur
8. Narsinghdwara Mitharamji Sthan Deh Sahar, Udaipur Near
At Gulabbhag, Raoji Ka Hatta, Udaipur, Through Its
Mahant Ramchandradas.
9. The State Of Rajasthan Through- Tehsildar, Girwa, District
Udaipur.
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10. M/s Dehliwala Real Estate Private Limited Registered
Office At S-11, Shyam Plaza, Hajareshwar Mahadev,
Through Its Director Shri Vimal Kumar Jain Son Of Shri
Shyam Sunder By Caste Jain, Resident Of 1349, Prabhat
Nagar, Hiran Magri, Sector No. 5, Udaipur.
11. Udaipur Treasure Market City Private Limited (Formerly
Known As Udaipur Enterment Word Private Limited),
Having Registered Office At G-16, Ground Floor, R.R.
Hosiery Building, Shree Laxmi Woolen Mill, Opposite
Shakti Mills Compound, Off. Dr.E.Moses Road, Mahalaxmi,
Mumbai- 400011.
----Respondents
D.B. Civil Special Appeal (Writ) No. 643/2018
Shri Narshinghdwara Meetharam Ji Sthan Desh Shahar Udaipur,
Near Gulab Bag, Raoji Ka Hata, Udaipur, through Mahant
Ramchandra Dasji, Chela Chuturbhuj Dasji, aged about 61 years,
R/o Near Gulab Bag, Raoji Ka Hata, Udaipur.
----Appellant
Versus
1. Magna S/o Shri Unkar Alias Onkar Dangi, Resident Of
Shobhagpura, Tehsil Girwa, District Udaipur.
2. State Of Rajasthan Through the Tehsildar Girwa, District
Udaipur.
3. Shantilal S/o Shri Kanhaiyalal Mehta, Resident Of 98/113,
Bhupalpura, District Udaipur.
4. Maheshchandra S/o Shri Madan Mohan Sharma, Resident
Of 123, Kharol Colony, Fatehpura, District Udaipur.
5. Dharampal S/o Shri Lakshmichand Dembla, Resident Of
Inside The Street of Sugandh Meera Hotel, Sardarpura,
District Udaipur.
6. Urban Improvement Trust, Udaipur Through Its Secretary,
Urban Improvement Trust, Udaipur.
7. The Board Of Revenue For Rajasthan, Ajmer.
----Respondents
D.B. Civil Special Appeal (Writ) No. 1198/2019
Shri Narshinghdwara Meetharam Ji Sthan Desh Shahar Udaipur,
Near Gulab Bag, Raoji Ka Hata, Udaipur, through Mahant
Ramchandra Dasji, Chela Chuturbhuj Dasji, aged about 61
years, R/o Near Gulab Bag, Raoji Ka Hata, Udaipur.
----Appellant
Versus
1. Magna S/o Shri Unkar Alias Onkar Dangi, Resident Of
Shobhagpura, Tehsil Girwa, District Udaipur.
2. State Of Rajasthan Through The Tehsildar Girwa, District
Udaipur.
3. Shantilal S/o Shri Kanhaiyalal Mehta, Resident Of
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98/113, Bhupalpura, District Udaipur.
4. Maheshchandra S/o Shri Madan Mohan Sharma,
Resident Of 123, Kharol Colony, Fatehpura, District
Udaipur.
5. Dharampal S/o Shri Lakshmichand Dembla, Resident Of
Inside The Street of Sugandh Meera Hotel, Sardarpura,
District Udaipur.
6. Urban Improvement Trust, Udaipur Through Its
Secretary, Urban Improvement Trust, Udaipur.
7. The Board Of Revenue For Rajasthan, Ajmer.
8. Ashok Singh Chauhan s/o Shri Bheru Singh Chauhan, b/
c Rajput, r/o Rani Road, Udaipur.
9. M/s. Dheliwala Real Estate Pvt. Ltd. Hiran Magri, Sector
5, Udaipur.
----Respondents
For Appellant(s) : Mr. Rajesh Shah, Mr. Sajjan Singh
Rajpurohit, Mr. Mahaveer Pareek,
Mr. Harshit Bhurani AGC
For Respondent(s) : Mr. Arvind Lakhawat, Mr. Arpit Bhoot
Mr. Deelip Kawadia
HON'BLE THE CHIEF JUSTICE MR. INDRAJIT MAHANTY
HON'BLE DR. JUSTICE PUSHPENDRA SINGH BHATI
Judgment Reserved on 04/03/2020 Pronounced on 29/05/2020 Per : Dr. Pushpendra Singh Bhati, J.:
1. Since the challenge, in the present cases, is common and the adjudication as well as submissions have been commonly led, therefore, all the present appeals have been heard together and are being decided by this common judgment.
2. These special appeals have been preferred claiming the following reliefs:
SAW No.650/2018 preferred by the State of Rajasthan:-
"Hence, it is most respectfully prayed that this special appeal filed by the appellant may kindly be allowed and the impugned judgment passed by the learned Single Judge dated 02.11.2017 passed in S.B. Civil Writ Petition No.5755/2011 may kindly be set aside (Downloaded on 29/05/2020 at 08:34:49 PM) (4 of 26) [SAW-650/2018] and the writ petition filed by the appellant/petitioner may kindly be allowed.
Any other order, which this Hon'ble Court deems fit, just and proper in the facts and circumstances of this case, may kindly be passed in favour of the appellant."
SAW No.97/2018 preferred by appellant/petitioner Ashok Singh Chouhan:-
"It is, therefore, respectfully prayed that this appeal of the appellant may kindly be allowed as prayed for, the order of the Hon'ble Single Judge dated 2.11.2017 may kindly be set aside and the writ petition of the appellant may kindly be allowed as prayed for with all consequential benefits.
Any other order or directions, which this Hon'ble Court deem just and proper may kindly be passed in favour of the appellant."
SAW No.643/2018 preferred by Shri Narsinghdwara Meetharam Ji Sthan Desh Shahar, Udaipur:-
"It is therefore, prayed that appeal may be allowed and the judgment of the learned Single Judge dated 02.11.2017 and the order passed by the Board of Revenue as well as the Trial Court may kindly be set aside and order of Revenue Appellate Authority may kindly be restored. Cost be awarded.
Any other appropriate order or direction, which this Hon'ble Court may be deemed just and proper may kindly be passed in favour of the appellant."
SAW No.1198/2019 preferred by Shri Narsinghdwara Meetharam Ji Sthan Desh Shahar, Udaipur:-
"It is therefore, prayed that appeal may be allowed and the judgment of the learned Single Judge dated 02.11.2017 and the order passed by the Board of Revenue as well as the Trial Court may kindly be set aside and order of Revenue Appellate Authority may kindly be restored. Cost be awarded.
Any other appropriate order or direction, which this Hon'ble Court may be deemed just and proper may kindly be passed in favour of the appellant."
3. Brief facts of this case, as noticed by this Court, are that Shri Narsinghdwara Meetha Ram Ji Sthan Deh Shahar, Udaipur Thikana Near Gulab Bagh, Raoji Ji Ka Hata, Udaipur (Downloaded on 29/05/2020 at 08:34:49 PM) (5 of 26) [SAW-650/2018] (hereinafter referred to as 'Deity') through Mahant Shri Ramchandra Das filed a suit for permanent injunction under Section 188 of the Rajasthan Tenancy Act, 1955 (for short, 'Act of 1955') before the Court of Additional District Collector, Girwa, and counterclaim was also filed by respondent-Magna seeking deletion of subsequent khatedari entry made after Samvat 2042 and to declare him as khatedar kashtkar, while seeking permanent injunction against the plaintiff. The suit of Mahant/Deity was dismissed, but the counterclaim of Magna was decreed in his favour by the Court of Additional District Collector, Girwa vide judgment and decree dated 17.04.2007, with a finding that the settlement department has no authority to make changes in the revenue record without prior permission of the competent authority, and thus, while issuing permanent injunction against the plaintiff/Deity/Mahant and keeping in view the long term possession of Magna s/o Onkarji Dangi, he was declared as khatedar of the suit land.
4. The original plaintiff-Mahant/Deity did not file any appeal against the aforesaid judgment and decree dated 17.04.2007 passed by the Additional District Collector, Girwa, and thus, the said judgment had attained finality qua Mahant/Deity.
5. The State of Rajasthan and one Ashok Singh Chouhan (claiming himself to be a devotee of the Temple) filed two separate appeals under Section 223 of the Act of 1955 before the learned Revenue Appellate Authority, Udaipur against the aforementioned judgment and decree dated 17.04.2007, which were allowed by the Revenue Appellate Authority vide a common judgment and decree dated 19.05.2008 holding that the predecessors of respondent-Magna were only Shikmi in respect of the land in question, which as per the revenue records was Maufi Land, and therefore, no khatedari rights can be conferred under (Downloaded on 29/05/2020 at 08:34:49 PM) (6 of 26) [SAW-650/2018] the Act of 1955 upon a Shikmi, who, without any specific order of a competent authority, was recorded as Khadamdar with respect to the land held by the Deity, who is always a perpetual minor.
6. Being aggrieved by the aforementioned judgment dated 19.05.2008 passed by the learned Revenue Appellate Authority, Udaipur, Magna preferred two appeals under Section 224 of the Act of 1955 before the learned Board of Revenue for Rajasthan, Ajmer, which were allowed by a common judgment dated 22.07.2009, while upholding the original judgment and decree dated 17.04.2007 passed by the Additional District Collector, Girwa.
7. Thereafter, S.B. Civil Writ Petition No.12146/2013 & 12409/2013 were filed by the appellant-Shri Narsingh Dwara Meetharamji Sthan Desh Shahar, Udaipur; S.B. Civil Writ Petition No.8136/2009 by appellant-Ashok Singh Chouhan and S.B. Civil Writ Petition No.5755/2011 was filed by appellant-State of Rajasthan. All the aforesaid writ petitions were dismissed by the learned Single Judge vide the impugned order dated 02.11.2017, whereby the learned Single Judge, while following the judgment rendered by Full Bench of this Hon'ble Court in Tara & Ors. Vs. State of Rajasthan & Ors., reported in 2015(4) RLW 2721 (Raj.), held that the Mahant/Deity had never cultivated the land, which was being cultivated by Magna, whose father Unkar @ Onkar Dangi was recorded as Khadamdar of the land in question, and thus, the plaintiff who has filed the plaint in the capacity of Mahant has no right over the suit land.
8. Mr. Harshit Bhurani, learned Additional Government Counsel appearing on behalf of the appellant-State submitted that the land in question is situated at Araji No.510 to 512, 521 measuring 10 bighas 9 biswas, which has now been recorded as Araji No.964 to 968, 973ME, 974, 975, 981 to 989, 994 to 997, (Downloaded on 29/05/2020 at 08:34:49 PM) (7 of 26) [SAW-650/2018] measuring 5.5700 hectares. As per learned State Counsel, in the record of settlement of Samvat 1987, the aforesaid land measuring 10.09 bighas was recorded as Doli land in the revenue record, and Sant Swaroopdas Guru Ramkishan Das Khaki Sakin Shahar was recorded as Mahant and Unkar @ Onkar s/o Rataji Dangi was recorded as Shikmi or Murthin.
9. Learned State Counsel also submitted that at the time of first settlement, the land in question was recorded in the name of Unkar s/o Rata Dangi as khatedari land and vide mutation No.111 dated 31.03.1972, the same was recorded in the name of Magna s/o Unkar Dangi.
10. Learned State Counsel further submitted that after Samvat 2025 to 2028, some record became available which reflected that Devasthan Department was kept to be khatedar of the land in question in Jamabandis of Samvat 2042 to 2045.
However, as per learned State Counsel, the name of Magna was removed from the Jamabandis vide mutation No.271 to 276.
11. Learned State Counsel also submitted that the acquisition of khatedari rights in favour of Magna with respect to the land recorded in the name of Doli land would be in direct conflict with Sections 16 and 46 of the Act of 1955. The aforementioned Sections 16 and 46 of the Act of 1955 read as under:
"16. Land in which Khatedari rights shall not accrue-- Notwithstanding anything in this Act or in any other law or enactment for the time being in force in any part of the State Khatedari rights shall not accrue in
(i) pasture land;
(ii) land used for casual or occasional cultivation in the bed of river or tank;
(iii) land covered by water and used for the purpose of growing Singhara or other like produce;
(iv) land under shifting or unstable cultivation;(Downloaded on 29/05/2020 at 08:34:49 PM)
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(v) land comprised in gardens owned and maintained by the State Governments;
(vi) land acquired or held for a public purpose or a work of public utility;
(vii) land which, at the commencement of this Act or at any time thereafter, is set apart for military encamping grounds;
(viii) land situated within the limits of cantonment;
(ix) land included within railway or canal boundaries;
(x) land within the boundaries of any Government forest;
(xi) municipal trenching grounds;
(xii) land held or acquired by educational institutions for purposes of instruction in agriculture or for play- ground; and
(xiii) land within the boundaries of a Government agricultural or grass farm;
(xiv) land which has been set apart or is, in the opinion of the Collector, necessary for flow of water thereon in to any reservoir or tanka for drinking water for a village or for surrounding villages:
Provided that the State Government may, by notification in the Official Gazette declare that any land which is under shifting or unstable cultivation, shall cease to be a land for such cultivation and thereupon such land shall be available for the grant of Khatedari rights and the State Government may by a like notification, declare that any land which was not at the commencement of this Act under shifting or unstable cultivation shall at any time after such commencement be under such cultivation from such date as may be specified in the notification and thereupon such land shall be available for such cultivation."
"46. Letting or sub-letting in exceptional cases--
(1) The restrictions imposed by Section 45 on letting by a holder of Khudkasht and on sub-letting by a tenant. shall not apply to-
(a) a minor. or
(b) a lunatic. or
(c) an idiot. or
(d) a woman who is unmarried or divorced or separated from her husband. or is a widow. or
(e) a person incapable disability of cultivating his holding by reason of blindness or other physical disability or infirmity. or (Downloaded on 29/05/2020 at 08:34:49 PM) (9 of 26) [SAW-650/2018]
(f) a person who is a member of :he' armed force of the Union. or
(g) a person who is suffering detention or confinement in prison; or
(h) a person not exceeding twenty-five years of age.
who is a student prosecuting, his studies in a recognised institution:
Provided that where a holding is held jointly by more person than one the provisions of this section shall not apply unless all such persons are of one or more of the descriptions specified therein.
(2) A lease or sub-lease which would be invalid but for the provisions of subsection (1) shall not remain in force for more than two years after the lessor dies or cease- to come within any 'of the description specified therein."
12. Learned State Counsel further submitted that it is a settled law that the Deity is a perpetual minor, and thus, the Deity will remain khatedar of the land, and the Pujari or any other person cannot acquire the khatedari rights because of the provisions of Section 46 of the Act of 1955.
13. Learned State Counsel also submitted that according to Kawayad Malufi Riyasat Mewar Samvat 2001, Magna was not entitled to be a khatedar of the land in question on the basis of his family having been recorded as Khadamdar, as no person can acquire khatedari rights of the land belonging to a perpetual minor, like Deity in the present case.
14. Learned State Counsel further submitted that the khatedari of the land in Samvat 2016 to 2019 also was recorded as that of Deity.
15. Learned State Counsel also submitted that the land in question was always a Doli land and Sant Swaroopdas Guru Ramkishan Das Khaki Sakin Shahar was entered as Mahant and Unkar s/o Rata Dangi was entered as Shikmi or Murthin, meaning thereby, the respondent-Magna was only holding the land as Murthin and Shikmi.
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16. Learned State Counsel further averred that during second settlement in Samvat 2046-49, the land in question remained in khatedari of the Idol, and the respondent was shown as manager in the revenue records of Samvat 2046 and Samvat 2066.
17. Mr. Arvind Lakhawat and Mr. Arpit Bhoot, learned counsel appearing on behalf of respondent-Magna have however, supported the judgment dated 22.07.2009 passed by the learned Board of Revenue and made the following submissions.
18. Learned counsel for respondent-Magna submitted that the learned Board of Revenue had elaborately considered the provisions of Mewar Malkanoon and also the provisions of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (hereinafter referred to as 'Act of 1952) before arriving at the conclusion in favour of respondent-Magna.
19. Learned counsel for respondent-Magna further submitted that the learned Board of Revenue has rightly held that the land in question was a 'Maufi land' granted to the Temple by the erstwhile princely State of Mewar, and therefore, resumption of Jagirs under the Act of 1952 was the changing point, as at that time, Magna was shown as Khadamdar in the revenue record and was the actual tiller of the land at the relevant time, and when the Act of 1952 came into force, Magna got the khatedari rights over the said land as per Section 9 of the Act of 1952. The said Section 9 of the Act of 1952 reads as under:
"9. Khatedari rights in jagir lands.-Every tenant in a jagir land who at the commencement of this Act is entered in the revenue records as a Khatedar, pattedar, khademdar or under any other description implying that the tenant has heritable and full transferable rights in the tenancy shall continue to have such rights and shall be called a khatedar tenant in respect of such land."(Downloaded on 29/05/2020 at 08:34:49 PM)
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20. Learned counsel for respondent-Magna also submitted that in the record, it has been clearly established and as recorded by the consecutive courts that the respondent No.6 was a Khadamdar as per the revenue record and was the actual tiller of the land, as the land in question was never Khudkast or self cultivated by the Temple/Deity/Mahant.
21. Learned counsel for respondent-Magna further submitted that the exception contained in Section 9 of the Act of 1952 would not operate, as the land in question was never khudkast or self cultivated.
22. Learned counsel for respondent-Magna has drawn the attention of this Court towards the cross-examination of plaintiff-
Mahant/Deity, wherein he has categorically admitted that he had never cultivated the suit land, and in fact did not even know the location thereof. The relevant portion of the said cross-
examination reads as under:-
"¼4½ eSa 'kiFkiwoZd fuosnu djrk gwa fd ekQhnkj u`flag+}kjk ehBkjke th dk efUnj Fks rFkk madkj firk jrk Mkaxh [kMenkj Fks ysfdu ;g Lohdkj ugha fd [kMenkj ls ekQh fjT;we gksus ij [kkrsnkj dk'rdkj gks x, gksA tekcUnh laor 2018 ls 2021 esa madkj firk jrk th Mkaxh ds [kMenkj ds gSfl;r ls ntZ FkhA madkj firk jrk th dh e`R;q ckn fojklr ls izfroknh uEcj 1 ds uke ntZ dj fn;k x;kA tcfd ;g Hkwfe oknh ds uke ntZ dh tkuh pkfg;s o izfroknh uEcj 1 o mlds firk madkj dk bl Hkwfe ij uktk;t dCtk pyk vk jgk gS tks oknh dks fnyk;k tkuk vko';d gSA ftjg &izfroknh%& bl tehu ij esjk dCtk ugha gS ysfdu esjs [kkrs dh gSA blds iwoZ gekjs efUnj dk egUr ds uke ls jgh gSA geus dHkh dk'r ugha dh gS A ckdh yksx gh dk'r djrs gS bl tehu ij esjs tkus dk dke ugha iM+k gSA tehu dgk fLFkr gS eq>s ekyqe ughaA eSa ehBkjke th efUnj dk egUr gwa ckdh yksx oknxzLr Hkwfe ds dk'rdkj gSA"
23. Learned counsel for respondent-Magna also submitted that appellant-Ashok Singh Chouhan had no locus standi to file the writ petition, as it was not a public interest litigation, and that, the contesting parties could at best be the State, Deity/Temple/Mahant or Magna.
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24. Learned counsel for respondent-Magna also submitted that the suit of the plaintiff was rejected, while the counterclaim of Magna was allowed by the learned Additional District Collector, Girwa, holding that the Jamabandi of Samvat 1987 during the Mewar Mahkama Bandobast clearly shows that Shri Onkar s/o Rata Dangi (father of respondent No.6) was recorded as Khadamdar of the suit land, and thus, the Temple has no khatedari rights over the said land.
25. Learned counsel for respondent-Magna further submitted that since the main contesting party Mahant/Temple/Deity had already lost their challenge before the Additional District Collector, Girwa, when their suit was dismissed and counterclaim of Magna was allowed vide order dated 17.04.2007, the rights qua Mahant stood extinguished.
26. Learned counsel for respondent-Magna also submitted that the learned Single Judge had passed a well reasoned order dated 02.11.2017 relying upon the Full Bench judgment of this Hon'ble Court rendered in Tara & Ors. (supra), wherein the Hon'ble Full Bench had held as under:
"26. In view of the above discussion, we decide the question no.(i) in favour of the State and against the Shebait/Pujari claiming the land to be saved by the Jagirs Act of 1952. The land held in Jagir by Hindu idol (deity) as Dolidar or Muafidar cultivated by a person other than the Shebait/Pujari of the deity personally or by hired labour or servants engaged by its Shebait/Pujari as a tenant of the deity, shall vest in the State, after the Jagirs Act of 1952. The Hindu idol (deity), even if it is treated to be a perpetual minor, could not continue to hold such land. Such land cannot be treated to be in its personal cultivation. A tenant of such land cultivating the land acquired the rights of khatedar of the State. Such land under the tenancy of a person other than Shebait/Purjari of Hindu Idol (deity) became khatedari land of such tenant. The name of Hindu Idol (deity) from such land had to be expunged from the revenue records with Shebait/Pujuri having no right to claim the land as Khatedar. Consequently, they had no right to transfer such lands, and all such transfers have to be treated as (Downloaded on 29/05/2020 at 08:34:49 PM) (13 of 26) [SAW-650/2018] null and void, in contravention of the Jagirs Act 1952, and the land under such transfers to be resumed by the State.
30. In view of the above, we answer the question no.(ii) in favour of the State and against the persons claiming land for Hindu idol (deity) as Dolidar or Muafidar. The Hindu Idol (deity) in the lands held by them in the name of its Shebait/Pujari on the date of resumption of such Jagir under the provisions of the Jagirs Act of 1952 did not have any rights except in khudkasht land cultivated by Shebait/ Pujari either by themselves or by hired labour or servant engaged by them for the benefit of the expenses of the temple including sewa puja. All those lands let out by them to the tenants or sub-tenants were resumed by the Jagirs Act of 1952 and that the Hindu idol (deity) lost all the rights in such jagir lands."
27. Mr. Rajesh Shah, learned counsel for appellant-Ashok Singh Chouhan submitted that Magna had failed to prove his status as Khadamdar/khatedar on 16.02.1952, and further, Magna did not pay any rent to the Deity.
28. Learned counsel for appellant-Ashok Singh Chouhan further submitted that the Bandobast Samvat 1987, in its column No.2 shows Shri Narsinghdwara as khatedar, and in column No.3 of Sikmi, Unkar was recorded as "DEH-KHA" "kha", which could at best be presumed to be khadamdar of the land in question.
29. Learned counsel for appellant-Ashok Singh Chouhan also submitted that the khatedari of the land at the time of filing of the suit was recorded in favour of Mahant; Magna or his predecessors had not been recorded as Khadamdar or in any description for the land in question, and thus, it was not proved that Magna or his predecessors were enjoying status of Khadamdar as on 16.02.1952.
30. Learned counsel for appellant-Ashok Singh Chouhan further submitted that in Bandobast Samvat 1987 Shri Narsinghdwara (Deity) was recorded as khatedar, and thus, in view of Section 38 of the Kanoon Maal Mewar 1947, the Deity was recorded as khatedar, as the area in question remained under (Downloaded on 29/05/2020 at 08:34:49 PM) (14 of 26) [SAW-650/2018] direct control of the then Mewar State and not under any of the Jagirdars.
Section 38 of the Kanoon Maal Mewar 1947 reads as under:
38- [kMenkj dk"rdkj o 1- [kMenkj ;k ckihnkj dk"rdkj mls dgrs gSa ftldk mlds gd uke o mlds gd xkao ds [kljs ;k tekcUnh esa ;k tehau ds iVVs esa mldh tehau ds eqrvfYyd [kMenkj ;k ckihnkj gh gSlh;r ls ntZ fd;k x;k gksA 2- [kMenkj dks vius [kMe dh tehau esa uhps fy[ks gd gksaxs %&
1. ,slh tehau [kMenkj ds tkfr dkuwu ;k fjokt ds vuqlkj mlds okfjlksa dks fojklr esa fey ldsxhA
2. ,slh tehau dks cspus] c['kh'k nsu] jgu j[kus] olh;r nsus oxSjg ds iwjs gd [kMenkj dks gksaxsA
3. tgka rd tehau dk yxku cjkcj vnk djrk jgs [kMenkj dk"rdkj dks csn[ky ugha fd;k tk ldsxk A
31. Learned counsel for appellant-Ashok Singh Chouhan also submitted that the khatedari rights were accorded in view of Section 39 of the Kanoon Maal Mewar 1947 as well as Hidayat Tasdik of the year 1937.
32. Learned counsel for appellant-Ashok Singh Chouhan further submitted that the khatedari rights accorded to deity were non-transferrable in view of Section 39 of the Kanoon Maal Mewar 1947 as Maufi Land was only granted to deity.
33. Learned counsel for appellant-Ashok Singh Chouhan also submitted that even if any right was given to the predecessors of Magna, the same was also subject to restriction as provided under Section 39 of the Kanoon Maal Mewar 1947, and thus, there was no question of Magna or his predecessors having acquired any transferable right, and cannot thus, be termed as khatedar tenant as per Section 9 of the Act of 1952.
34. Learned counsel for appellant-Ashok Singh Chouhan further submitted that Magna had failed to prove his existing khadamdari right as on 16.02.1952, as provided in Section 9 of (Downloaded on 29/05/2020 at 08:34:49 PM) (15 of 26) [SAW-650/2018] the Act of 1952 as well as Section 51 of the Kanoon Maal Mewar 1947.
For ready reference Section 51 of the Kanoon Maal Mewar 1947 reads as under:
51- dk"rdkj dks gd [kMe eqLrfdy f"kdeh [kkrsnkj ;k dksbZ nhxj dk"rdkj tc nsuk utjkuk vnkdj tehu dk ckih iV~Vk ekyh vQlj etkt ls izkIr djsa rc mls [kMenkj ds gd tehu ij izkIr gksaxs
35. Learned counsel for appellant-Ashok Singh Chouhan also submitted that the khadamdari rights could not be accorded as being transferable rights of property on behalf of Deity by the then Mahant to the predecessor of Magna, as the deity itself was a khatedar having no right to transfer. Deity land could not be given with transferable rights in khadamdari in absence of permission as provided under Section 52 of the Kanoon Maal Mewar 1947. The said Section 52 of the Kanoon Maal Mewar 1947 reads as under:-
52- ukckyxku dh vkjkth dk ukckfyax dk"rdkj ds laj{kd dks mldh tehu fcyk bardky eUtwjh dysDVj ;k fdlh izdkj ls bardky djus dk vf/kdkj u gksxkA
36. Learned counsel for appellant-Ashok Singh Chouhan further submitted that words "kachchi khadamdari", used in the record, for predecessors of Magna itself show that they were not having any right as per the settlement of Samvat 2008, in view of Section 9 of the Act of 1952.
37. Learned counsel for appellant-Ashok Singh Chouhan has also drawn the attention of this Court towards the relevant portion of Hidawat Tasdik Mewar Samvat 1994 and Kawayad Mafi Riyasat Mewar Samvat 2001.
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38. In support of their submissions, learned counsel for the appellants have relied upon the precedent law laid down by the Hon'ble Supreme Court in Promoters and Builders Association of Pune vs. Pune Municipal Corporation and Ors., reported in (2007) 6 SCC 143, relevant portion of which reads as under:-
"12. The High Court also accepted the contention of the writ petitioners based on the ground of promissory estoppel. The Development Control Rules are framed by the State Government in exercise of power conferred by Section 158 of the Act. Consequently they must be treated as if they were in the Act and are to be of the same effect as if contained in the Act and are to be judicially noticed for all purposes of construction and obligation. [See State of U.P. v. Babu Ram Upadhya : 1961CriLJ773 and State of Tamil Nadu v. Hind Stones : [1981]2SCR742 ]. If the Development Control Rules have the same force as that of a statute, then no question of promissory estoppel would arise as the principle is well settled that there can be no estoppel against a statute. We are in complete agreement with the view taken earlier by this Court and there is not even a slightest ground which may cast any doubt regarding the correctness of the earlier judgment."
39. Learned counsel for the appellants have also relied upon the precedent law laid down by the Hon'ble Supreme Court in Prem Nath Khanna and Ors. vs. Narinder Nath Kapoor (Dead) through LRs and Ors., reported in (2016) 12 SCC 235, relevant portion of which reads as under:-
"22. In the case of Guru Amarjit Singh v. Rattan Chand and Ors. : (1993) 4 SCC 349, this Court held that the entries in jamabandi are not proof of title in respect of an immoveable property. In the case of Jattu Ram v. Hakam Singh and Ors. : (1993) 4 SCC 403, this Court observed that entries made by patwari in official record are only for the purpose of records and do not by itself prove the correctness of the same nor can statutory presumption be drawn on the same, particularly, in the absence of corroborative evidence. The Respondent cannot claim to have acquired title over the suit property by pleading adverse possession only in the absence of the name of the Appellants in the revenue records. In the case of Thakur Kishan Singh (Dead) v. Arvind Kumar : (1994) 6 SCC 591 (Downloaded on 29/05/2020 at 08:34:49 PM) (17 of 26) [SAW-650/2018] and P.T. Munichikkanna Reddy and Ors. v. Revamma and Ors. : (2007) 6 SCC 59, this Court held that in cases where the possession was initially permissive, the burden lies heavily on that person alleging adverse possession to prove that the possession has become adverse. Mere possession for long time does not convert permissive possession into adverse possession."
40. Reliance has also been placed by the learned counsel for the appellants on the precedent law laid down by the Hon'ble Supreme Court in A.A. Gopalakrishnan vs. Cochin Devaswom Board and Ors., reported in (2007) 7 SCC 482, relevant portion of which reads as under:-
"10. The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their Trustees/Archaks/ Sebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the concerned authorities. Such acts of 'fences eating the crops' should be dealt with sternly. The Government, members or trustees of Boards/Trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation."
41. Learned counsel for the appellants have also placed reliance on the judgment rendered by this Hon'ble Court in Mewar Bone Mills vs. Board of Revenue for Rajasthan and Ors., reported in 1981 WLN (UC) 208, relevant portion of which reads as under:-
"10. It is noteworthy that the learned Members were alive of this position and had only taken help from the definition in 'Kanun Mal Mewar' for the term 'shikmi' to understand the intention or idea of using the term 'shikmi' in the year 1946. 'Shikmi' tenancy was of the lowest order. Such a tenant could not claim khatedari rights because he was liable to ejectment at the will of the authorities concerned.(Downloaded on 29/05/2020 at 08:34:49 PM)
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11. As per provisions of Section 15 of the Act every person who at the commencement of this Act was a tenant (excluding certain categories given in that Section) acquired Khatedari rights in accordance with the provisions of that Act.
12. Section 5(43) defines tenant as a person by whom rent is, or, but for a contract, express or implied, would be payable. Section 5(12) defines 'grant' as under:
"Grant" shall mean a grant or a right to hold land or interest in land in any part of the State and the person to whom such right is granted shall be called the 'grantee' thereof:
13. Mr. Sharma emphatically stressed that all the courts below were in error in considering the case of the petitioner under the definition of 'grant' at, a favorable rate of rent' as appearing in Section 5(13) of the Act. He referred to Section 5(43) of the Act and urged that only a grantee at a favourable rate of rent or an ijardar or a thekadar or a trespasser has been excluded from that definition and if the intention of the legislature had been to exclude the 'grantee' also from the definition of the tenant, there would have been a specific mention to that effect. Correct it is that there is a specific exclusion of 'grantee at a favourable rate of rent from the definition of tenant but that does not mean that the grantee of the 'grant' defined in Section 5(12) of the Act has been impliedly included in the category of a tenant.
14. This is not in dispute that the grant to the petitioner was on certain conditions which they had to fulfill in a specified period. This is also not contested that certain conditions could not be fulfilled by the petitioner. Section 15(2) deals with this type of cases. Section 15(2) reads as under:
"Notwithstanding anything contained in Sub- Section (1) khatedari rights shall not accrue there under to any person to whom land had been let out before the commencement of this Act by the State Government in furtherance of the 'Grow More Food Campaign' or under some special order or subject to some specified conditions or in pursuance of some statutory or nonstatutory rules and who shall have, before such commencement made a default in securing the objective of such campaign or a breach of any such order, condition or rule."
15. The present case is covered by this clause. As the allotment to the petitioner was under a special order and also subject to specified conditions, their failure to fulfill (Downloaded on 29/05/2020 at 08:34:49 PM) (19 of 26) [SAW-650/2018] those conditions amounted to a breach and they became defaulter. This non-obstante clause creates a bar on the rights of the petitioner to acquire khatedari rights as provided in Section 15(1) of the Act. This being the clear position of law mere use of the word 'shikmi' or 'ghair khatedar' anywhere in the record would be of no help to the petitioner."
42. Learned counsel for the appellant-Ashok Singh Chouhan further submitted that any benefit of collusive decree obtained by Magna cannot be permitted to hold good as it would be detrimental to the interest of public faith, which vests in the Deity in question, and also it will be a breach of settled law, which outrightly tilts towards protecting the rights of a minor.
43. Learned counsel for the appellant-Ashok Singh Chouhan also submitted that the very non-impleadment of the State by Mahant and Magna in their original claim and counterclaim respectively clearly shows that they were in collusion for seeking the decree in question in favour of Magna, and thus, the averments and the contest made by Ashok Singh Chouhan, a devotee are not only relevant to the context, but also essential in the interest of the perpetual minor, the Deity.
44. Mr. Sajjan Singh Rajpurohit, learned counsel for Mahant/Idol/Deity submitted that the principles of estoppel cannot overrule the core principles of law, and once the Deity is a perpetual minor, then right of such perpetual minor have to be protected by this Court, irrespective of the stand taken before the learned authorities below.
45. Learned counsel for Mahant/Idol/Deity further submitted that the predecessors of Magna were not recorded as Khadamdar before the Act of 1955 or at the time of commencement of the Act of 1952, and thus, they cannot be given benefit of such failing.
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46. Learned counsel for Mahant/Idol/Deity also submitted that the predecessors of Magna were Khadamdar, and thus, they cannot be said to have acquired the rights of khatedar.
47. Learned counsel for Mahant/Idol/Deity has also addressed this Court on the issue of Section 9 of the Act of 1952 and Section 15 of the Act of 1955 stating that they cannot hit the rights of a perpetual minor.
The said Section 15 of the Act of 1955 reads as under:
"15. Khatedar tenants-- (1) Subject to the provisions of section 16 and clause (d) of Sub-section (1) of section 180 every person who, at the commencement of this Act, is a tenant of land otherwise than as a sub-tenant or a tenant of Khudkasht or who is, after the commencement of this Act, admitted as a tenant otherwise than a sub-tenant or tenant of Khudkasht or an allottee of land under, and in accordance with, rules made under section 101 of the Rajasthan Land Revenue Act, 1956 (Rajasthan Act 15 of 1956) or who acquires Khatedari rights in accordance with provisions of this Act or of the Rajasthan Land Reforms and Resumption of Jagir Act, 1952 (Rajasthan Act VI of 1952) or of any other law for the time being in force shall be a Khatedar tenant and shall, subject to the provision of this Act be entitled to all the rights conferred; and be subject to all the liabilities imposed on Khatedar tenants by this Act:
Provided that no Khatedari rights shall accrue under this section to any tenant, to whom land is or has been let out temporarily in Gang Canal, Bhakra, Chambal or Jawai project area or any other area notified in this behalf by the State Government.
(2) Notwithstanding anything contained in sub-section (1) Khatedari rights shall not accrue there under to any person to whom land had been let out before the commencement of this Act by the State Government in furtherance of the Grow More Food Campaign or under some special order subject to some specified conditions or in pursuance of some statutory or non-statutory rules and who shall have, before such commencement, made a default in securing the objective of such campaign or a breach of any such order, condition or rule.
(3) Any person referred to in sub-section (2) may, within three years from the date of commencement of this Act and on payment of a court-fee of twenty five naye paise apply to the Assistant Collector having (Downloaded on 29/05/2020 at 08:34:49 PM) (21 of 26) [SAW-650/2018] jurisdiction praying for a declaration that acquired Khatedari right under sub-section (1) in the land held by him.
(4) Such application may be made on any of the following grounds, namely:
(a) that the land held by him was let out to him after the" commencement of this Act.
(b) that it was not let out to him in any of the circumstances specified in sub-section (2).
(c) that when the- land was so let out to him he was not apprised of such circumstances.
(d) that he had, before such commencement made no default or breach of the nature specified in sub-section (2).
(5) The Assistant Collector shall, upon the presentation of an application under sub-section (3), make inquiry in the prescribed manner and afford reasonable opportunity to the applicant of being heard and shall, if he does not reject the application , declare the applicant to have become Khatedar tenant of his holding in accordance with and subject to the provisions of the sub-section (I)."
48. Learned counsel for Mahant/Idol/Deity further submitted that Magna and his predecessors were at best custodians or trustees of the property in question and the temple itself was shown as khatedar of the land in Samvat 2016-2019, and thus, there was no question of any rights having been accrued to Magna and his predecessors.
49. In their rejoinder arguments, learned counsel for the respondent-Magna submitted that before the entries of Samvat 2042, Magna and his predecessors, who were recorded as khatedar or deleted subsequently, were in fact, in whatever capacity, continuing to till the land in question for last so many years.
50. Learned counsel for respondent-Magna, in his rejoinder arguments, also submitted that it is undisputed that Magna and his predecessors were recorded as Khadamdar, and thus, being recorded as tillers of the land at the relevant time, they were entitled to be treated as tenant of the State, as the land in (Downloaded on 29/05/2020 at 08:34:49 PM) (22 of 26) [SAW-650/2018] question was admittedly not being tilled by the Doli or through their direct intervention.
51. Learned counsel for respondent-Magna, in his rejoinder arguments, further submitted that the Act of 1955 further fortified the claim of Magna and his predecessors as they were recorded as Khadamdar in Samvat 2013, while their possession and right to till the land prior thereto was also recognized.
52. Learned counsel for appellant-Ashok Singh Chauhan, on the other hand, while justifying the judgment of the Revenue Appellate Authority dated 19.05.2008 submitted that before the Act of 1955, Magna and his predecessors were recorded as sub tenant, and thus, could not have been taken to be tenants.
53. Learned counsel for appellant-Ashok Singh Chouhan further justified the judgment dated 19.05.2008 passed by the Revenue Appellate Authority, in which the learned authority below had recorded that during the erstwhile State period, entry of Khadamdar upon Sasnik Maufi shall also be treated as Kacchi Khadamdari as per the prevailing laws at the relevant time, and thus, it cannot be equated with khadamdar or khatedar.
54. Learned counsel for appellant-Ashok Singh Chouhan also submitted that the Revenue Appellate Authority in its order dated 19.05.2008 had rightly referred to Section 52 of the Kanoon Maal Mewar Samvat 2003 Year 1947, as the land was belonging to the Deity, who was a perpetual minor, and thus, the ownership could not have been changed without taking prior permission of the competent authority.
55. Learned counsel for appellant-Ashok Singh Chouhan also submitted that the land was recorded as Sasnik Maufi and therefore, Magna and his predecessors did not have any right being Shikmi. Thus, as per learned counsel, considering Magna and his predecessors as Khadamdar in Samvat 2013 after coming into force of the Act of 1955 was not in accordance with law. (Downloaded on 29/05/2020 at 08:34:49 PM)
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56. After hearing learned counsel for the parties as well as perusing the record of the case, alongwith the precedent laws cited at the Bar, this Court finds that the law is clear that the land held in Jagir by Hindu Idol (deity) as Dolidar or Maufidar and cultivated by a person other than the Shebait/Pujari of the Deity or by hired labour or servants engaged by its Shebait/Pujari as a tenant of the deity, shall vest in the State, after the Act of 1952.
57. This Court also finds that in this case, it is clear that once the Deity/Idol, even when being a perpetual minor, did not continue to cultivate such land through Mahant or hired servants, as reflected in the record, then the said land cannot be treated to be in its personal cultivation. Magna and his predecessors had acquired the right of tenancy as they were cultivating the said land, and since the State acquired the status of khatedar, therefore, Magna and his predecessors became established tenants of khatedar State; this gave all rights to the tenant i.e. Magna and his predecessors.
58. Thus, while applying the law to the facts, it becomes clear that the two consecutive judgments i.e. dated 22.07.2009 passed by the learned Board of Revenue and dated 02.11.2017 passed by the learned Single Judge of this Hon'ble Court have arrived at a right conclusion.
59. The proposition of law is very clear that all those lands, let out by Dolidar or Maufidar or through Shebait/Pujari to act in the capacity of tenants or sub tenants, were resumed by the Act of 1952, which led to the loss of all rights in such Jagir lands of the Hindu Idol (deity).
60. As entry of Unkar alias Onkar Dangi, the predecessor of Magna as Khadamdar in the revenue record at the time of commencement of the Act of 1955 in Samvat 2012 is on record, the consequences thus follow.
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61. The judgment of Full Bench of this Hon'ble Court rendered in Tara & Ors. (supra) is holding the field and the judgment cited by learned counsel appearing on behalf of appellants are not applicable to the present case as those judgments did not admittedly deal with the khatedar tenant, who is in possession of the land for more than 63 years and was having the status of khadamdar even at the time when the Act of 1955 came into force.
62. The temporary change in the status due to the settlement proceedings in Samvat 2046-49 cannot be given much credence as the deposition by the Mahant in his original cross- examination, relevant portion of which has been reproduced hereinabove, clearly established that the Mahant in question did not have any possession over the land in question, and moreover the judgment and decree dated 17.04.2007 passed by the Additional District Collector, Girwa had attained finality qua the Mahant who was acting on behalf of the Deity and chose not to challenge the same.
63. The judgment dated 19.05.2008 passed by the Revenue Appellate Authority, even when recognizing the tenancy of Magna and his predecessors before the Act of 1955, has gone on the premise that the revenue record reflected only Kacchi Khadamdari, even when their tenancy was established.
64. The relevance of Section 52 of the Kanoon Maal Mewar Samvat 2003 Year 1947 and the permission by the competent authority shall not give any relief to the Mahant or other parties as the record clearly reflected status of Khadamdar having been conferred by upon the predecessors of Magna and the effect of the Act of 1952 and the Act of 1955 upon the land in question has conclusively determined the rights in favour of Magna and his predecessors, as dealt with by the learned Board of Revenue as well as the learned Single Judge of this Hon'ble Court. (Downloaded on 29/05/2020 at 08:34:49 PM)
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65. Any error in the settlement exercise shall not be detrimental to the rights of Magna and his predecessors, as it is undisputed that they were recorded as khadamdar even from the beginning when the Act of 1952 and the Act of 1955 came into existence. The recording of Magna and his predecessors as Khadamdar in Samwat 2013 further fortifies their claim. Any determination in light of the settled law laid down by the Full Bench judgment in Tara (supra) could have been made in favour of the Deity only if the temple/deity/Mahant could have been shown as Khudkast over the land in question, whereas there is not an iota of proof in the complete record to show such factum, and therefore, the same has been rightly determined by the learned Board of Revenue as well as learned Single Judge of this Hon'ble Court.
66. This Court has kept in mind that the Mahant acting on behalf of the Deity lost his claim when his suit was dismissed vide judgment and decree dated 17.04.2007 passed by the Additional District Collector, Girwa and the counterclaim of Magna and his predecessors were allowed by the same order. It is pertinent to note that the same was not challenged by the Mahant/Deity, and appellant-Ashok Singh Chouhan is merely a devotee and does not have any stake in the property in question. As regards the State of Rajasthan vis-a-vis Deity, the law tilts in favour of the State and the land vested in it, and through it, the khatedar tenant / khadamdar gained their rights, and thus, in a way, State itself cannot contest the claim for the Deity/Mahant against itself, and thus, virtually there is no contest in the matter, which could justify the appeal of the State.
67. In light of the aforesaid observations, this Court does not find any reason whatsoever to make any interference in the judgments passed by the Board of Revenue as well as the learned Single Judge of this Hon'ble Court.
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68. Consequently, the present appeals are dismissed. All pending applications also stand dismissed. (DR. PUSHPENDRA SINGH BHATI),J (INDRAJIT MAHANTY),CJ SKant/-
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