Madhya Pradesh High Court
Shri Kal Bhairava vs Maya Bai(Name Deleted ) on 17 May, 2025
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2025:MPHC-IND:12927
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
FIRST APPEAL No. 524 of 1998
SHRI KAL BHAIRAVA AND OTHERS
Versus
MAYA BAI(NAME DELETED ) AND OTHERS
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Appearance:
Shri A.S.Kutumbale, learned Senior Advocate with Shri B.S.Gandhi, learned
counsel for appellants.
Shri V.K.Jain, learned Senior Advocate with Ms. Vaishali Jain, learned
counsel for respondents.
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WITH
FIRST APPEAL No. 246 of 2000
THE STATE OF MP.
Versus
MAYA BAI (NAME DELETED) AND OTHERS
Signature Not Verified
Signed by: NEERAJ
SARVATE
Signing time: 17-05-2025
17:04:44
NEUTRAL CITATION NO. 2025:MPHC-IND:12927
2
Appearance:
Shri Sudarshan Joshi, learned Panel Lawyer for appellant/State.
Shri V.K.Jain, learned Senior Advocate with Ms. Vaishali Jain, learned
counsel for respondents.
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ORDER
(Reserved on 01.05.2025) (Pronounced on 17.05.2025)
1. Since these appeals have been preferred against a common judgment passed by the trial Court they have been heard together and are being decided by a common judgment.
2. F.A. No.524/1998 has been preferred by the plaintiffs Shri Kalbhairav Murti and its pujaris whereas F.A. No.246/2000 has been preferred by defendant No.6 State of Madhya Pradesh.
3. The facts of the case in brief are that plaintiffs instituted an action on 11.06.1984 before the trial Court for declaration of title to the suit land bearing survey No.244 area 3.743 hectare, for declaration that the order dated 21.02.1984 passed by the Board of Revenue is illegal, for possession of the suit land and mesne profits.
4. As per the plaintiffs, in District Dhar, near Ratnagara tank is an Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 17-05-2025 17:04:44 NEUTRAL CITATION NO. 2025:MPHC-IND:12927 3 old and ancient temple by the name of Kalbhairav temple. Plaintiffs 1 to 3 and their ancestors have been the Pujaris of the temple and have been receiving emoluments also from the State Government. For the management of the temple the suit land had been given about 200 years ago by the ruler of Dhar to the pujaris of which they have been taking care ever since then. Since a few years the suit land has been given by Pujari plaintiff No.1 to Rupa Balai, husband of defendant No.1. On account of mistake having been made in the revenue records the suit land instead of being recorded in the name of Kalbhairav temple has been recorded in the name of Pujari Ramchandra and others. For correction of the mistake as occurred in respect of Kalbhairav temple and other temples a commission was constituted by the then Dhar State which carried out the inspection in 1931-32 and passed its decision in the year 1932 as per which it held the suit land to be of Shri Kalbhairav Devsthan in the nature of muafi temple land and that recording of the land as dharmada land in name of plaintiffs is incorrect which deserves to be corrected. The decision of the commission was approved by the Huzur Council Alia which was the cabinet of Dhar State by its order dated 27.02.1933. Declaration to this effect was also made and a Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 17-05-2025 17:04:44 NEUTRAL CITATION NO. 2025:MPHC-IND:12927 4 direction was issued for correcting the patta. Consequently on 19.04.1933 a muafi patta was issued in the name of Shri Kalbhairav Devsthan with Shankar, Ramchandra and Krushna being recorded as the Pujaris. However, as per the new patta the record was not corrected. Upon death of husband of defendant No.1, upon coming into force of Madhya Pradesh Land Revenue Code, 1959 she along with her daughters made an application under Section 190/110 of the Code, 1959 before the Tehsildar, Badnawar which was contested by the Pujaris of the plaintiff stating that the land belongs to the temple and they are merely the pujaris. The application was rejected by the Tehsildar and direction was issued for correction of the revenue records. Appeals preferred by the defendants were dismissed by the Sub Divisional Officer as well as by the Commissioner by order dated 28.05.1982. However, revision preferred by them was allowed by order dated 21.02.1984 by the Board of Revenue and it was held that the suit land does not belong to the temple but instead belongs to the pujaris. The said order has hence cast a cloud upon title of the temple to the suit land hence the suit for reliefs as aforesaid has been instituted by plaintiffs.
5. The claim was contested by defendants 1, 3 to 5 submitting that Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 17-05-2025 17:04:44 NEUTRAL CITATION NO. 2025:MPHC-IND:12927 5 the suit land was held by Ramchandra, Krushnaji, Vinod Kamar and others in Bhumiswami rights and was their muafi land. In respect of the same the commission and the Council Alia had no right to give any decision. In any case their orders and patta have never been implemented for which there is no reason. The alleged patta is even otherwise forged and false. The order dated 21.02.1984 passed by the Board of Revenue is perfectly legal and cannot be challenged by way of a civil suit which is hence not maintainable. The recorded tenants of the suit land had given the same to husband of defendant No.1 on Shikmi hence the defendants have become the Bhumiswami thereof by virtue of provisions of the Code, 1959. They have even otherwise acquired title to the suit land by virtue of adverse possession.
6. During pendency of the suit, defendant No.5 expired and her legal representatives were brought on record. Legal representatives No.2 and 3 filed their written statement taking the same plea as was taken by defendant No.5 in her written statement. The defendant No.6 State of Madhya Pradesh also filed its written statement submitting that the suit land was given to the pujaris for worshiping and maintenance of government temple Kalbhairav. They had no right to give the suit land Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 17-05-2025 17:04:44 NEUTRAL CITATION NO. 2025:MPHC-IND:12927 6 to the defendants or their predecessors on Shikmi. The defendants are encroachers over the suit land. The Dhar Estate Commission and the Sub Divisional Officer and the Commissioner had correctly directed for correction of the revenue records. The order passed by the Board of Revenue is illegal. The suit land belongs to the temple Kalbhairav with Collector, District Dhar being its Manager.
7. Upon pleadings of the parties issues were framed by the trial Court after which the parties led their oral as well as documentary evidence in support of their respective contentions. By the impugned judgment and decree the trial Court has held that plaintiffs have failed to prove that the suit land is of the ownership of Kalbhairav temple. It has also not been proved that it is of the ownership of Kalbhairav deity with the Collector being its Manager hence plaintiffs pujaris had no right to give the same to the defendants on Shikmi. The suit land was held by pujaris in bhumiswami rights. The order passed by the Board of Revenue does not operate as res judicata for the present suit. Defendants 1 to 5 have acquired title to the suit land by virtue of provisions of the Code, 1959. In consequence the plaintiff's claim has been dismissed.
Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 17-05-2025 17:04:44 NEUTRAL CITATION NO. 2025:MPHC-IND:12927 7
8. Learned senior counsel for the plaintiff has submitted that the trial Court has erred in holding that the suit land does not belong to Shri Kalbhairav deity but instead was held by its pujaris in Bhumiswami rights and that since the same was given on Shikmi to husband of defendant No.1, the defendants have acquired Bhumiswami rights thereupon under the provisions of the Code, 1959. The conclusive documentary evidence produced by the plaintiffs to prove that the suit land belongs to the deity and does not belong to the pujaris has been completely failed to be appreciated in proper perspective. The documents have been duly proved by way of the oral evidence. The suit land was earlier given to the temple but mistakenly the pujaris were recorded over the same as Bhumiswami. By the commission appointed by the Dhar State the mistake was discovered as having been made which was directed to be corrected by recording the name of the deity over the suit land. The finding of the commission was affirmed by the Huzur Council Alia which was the cabinet of Dhar State on 27.02.1933. This conclusively proves that the suit land was held by the deity. Only for the reason that the decision of the Commission as approved by the cabinet was not given effect to in the revenue records and the earlier Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 17-05-2025 17:04:44 NEUTRAL CITATION NO. 2025:MPHC-IND:12927 8 mistake of recording of the pujaris over the suit land continued, the title of the deity in the suit land would not be lost and would not be conferred upon the defendants. Since it is the deity who is the owner of the suit land and who is a perpetual minor, the suit land could not have been given on Shikmi by its pujaris to husband of defendant No.1. Even if it was so given, the same was wholly null and void and without any authority and merely on the basis of being in possession of the suit land upon the same having been given by the pujaris the defendants cannot claim acquisition of Bhumiswami rights under the provisions of the Code, 1959. Their possession over the suit land is hence illegal and so also is the order dated 21.02.1984 passed by the Board of Revenue. The plaintiff's claim hence deserves to be decreed. Reliance has been placed on the decisions of the Apex Court in Narain Prasad Aggarwal (dead) through legal representatives V/s. State of Madhya Pradesh 2007 (11) SCC 736, Gurunath Manohar Pavaskar and Others V/s. Nagesh Siddappa Navalgund and Others AIR 2008 SC 901 and Mst. Kanchaniya and Others V/s. Shiv Ram and Others AIR 1992 SC 1239.
9. Learned counsel for defendant No.6/State has submitted that the Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 17-05-2025 17:04:44 NEUTRAL CITATION NO. 2025:MPHC-IND:12927 9 suit land belonged to Kalbhairav deity with the Collector, District Dhar being recorded as its Manager. The same is a Government temple. The pujaris were appointed only for management of the temple and the suit land was attached to the temple only for that purpose. The pujaris had no right to give the same on Shikmi to husband of defendant No.1 hence defendants 1 to 5 have not acquired any title to the suit land. However it is to be noticed that though appeal has been preferred by defendant No.6/State against the judgment and decree passed by the trial Court but the same has been preferred only against the finding recorded by the trial Court. There is no decree passed against defendant No.6 which could be challenged by it by preferring an appeal.
10. Learned counsel for defendants 1 to 5 has submitted that the suit land belonged to the pujaris of the temple and did not belong to the deity. The documents available on record produced by plaintiffs themselves show that the suit land belonged to the pujaris. It is wholly incorrect on part of the plaintiffs to contend that it is the deity which is the owner of the suit land. The pujaris had given the suit land to husband of defendant No.1 on Shikmi upon whose death defendants 1 to 5, upon coming into force of the Code, 1959 have acquired Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 17-05-2025 17:04:44 NEUTRAL CITATION NO. 2025:MPHC-IND:12927 10 Bhumiswami rights over the same as has rightly been held by the Board of Revenue in its order dated 21.02.1984. The commission appointed by the Dhar State had no right or authority to declare the suit land as belonging to the deity nor did the cabinet of Dhar State have any right to take a decision in that regard. The suit land has ever since been recorded in the name of pujaris and was held by them in Bhumiswami rights who had every right to give the same to husband of defendant No.1 on Shikmi. It is hence submitted that the judgment and decree passed by the trial Court is perfectly legal in which no interference is warranted in view of which the appeals deserve to be dismissed.
11. I have considered submissions of the learned counsel for the parties and have perused the record.
12. The sole question for determination in these appeals is as to whether the suit land is of the ownership of Kalbhairav temple and the plaintiffs /pujaris are not the owners thereof but are only its Managers or whether the same was held by the plaintiffs and their predecessors in Bhumiswami rights. In paragraph No.17 the trial Court has recorded finding that Kalbhairav temple is a Government public temple and plaintiff No.1 Ramchandra is its pujari. Earlier Vidyadhar Bhatt was Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 17-05-2025 17:04:44 NEUTRAL CITATION NO. 2025:MPHC-IND:12927 11 appointed as the pujari of the temple. It is not in dispute between the parties that the suit land was taken on Shikmi by Rupa, husband of defendant No.1 from Keshavrao and/or his son plaintiff No.1 Ramchandra. The dispute between the parties is based primarily upon documentary evidence which may be considered.
13. Ex.P/3 is a decision dated 31.03.1932 of Commissioner Darbar, Dhar from perusal of the contents of which it is clear that the suit land was muafi land. The same since the year 1246 fasli, for a period of 122 years, was in the nature of muafi land patta of which year to year was given to pujari Vidyadhar Bhatt - Kurshna Bhatt for worship of Shri Kalbhairav. However Someshwar, son of Vidyadhar Bhatt had no child hence the land was liable for resumption hence as per Section 7 of kavayad muafidaran it was settled that since the land is of Devsthan, for ensuring puja of the same, patta be amended so that the worship in the temple be continued till its existence. However no decision was rendered as to in what manner, what form and in favour of whom the patta is liable to be amended and the matter was placed before the judicial Branch of Darbar Dhar.
14. Thereafter on 29.07.1932 order was passed by the judicial Branch Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 17-05-2025 17:04:44 NEUTRAL CITATION NO. 2025:MPHC-IND:12927 12 of Darbar Dhar to the effect that since earlier pattedar Ganpat has died issue-less but with consent of the Darbar he had taken Keshavrao in adoption and his elder son Shankarrao is alive, the patta of the land be given in favour of Shankarlal. Though in the said decision it was not specifically mentioned that the suit land is decided or is determined or is held to be belonging to Shri Kalbhairav temple or that it is the owner of the land, but in the decision dated 31.03.1932 (Ex.P/3) it was specifically recorded that the land which is muafi land has been given since a long time on patta for being utilized for the worship of temple which decision was not altered in this order.
15. On the basis of the aforesaid orders, the trial Court has held that since therein it has not been specifically stated that the suit land is in the name of Kalbhairav temple or its title thereto has been declared and instead patta of the same was given to the pujaris for ensuring worship/management of the temple then as per Section 7 of kavayad muafidaran the intention cannot be imported or inserted in the orders that the suit land was declared to be of the ownership of the temple and instead the patta was given to predecessors of plaintiffs in respect of muafi land for worshiping of the temple. In this regard reliance has Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 17-05-2025 17:04:44 NEUTRAL CITATION NO. 2025:MPHC-IND:12927 13 been placed by the trial Court on Section 7 of kavayad muafidarn which is as under :-
'' तममाम ममुआफफीयमात बबीनमावर ईममादमाद ममंदबीर व मसजबीद व इसबी कफीसम कके ममुसतकफील मकमानमात मजहवव व खखैरमातबी जबीनकके नबीसवत ककोई शक न हको ममुसतकफील ततौरपर उस वकत तक जमारबी रहकेगबी कके जबतक वह मकमाममात कमायम रहके, गको ममुआफफी दकेनके कके वकत उनकके ममुसत कफील ततौरपर कमायम रखनके कमा मनशमा समाफ न हको।
शतर:- यह कमायदमा उन ममुआफफीयमात जमातबी सके ममुतमालबीफ नहहीं हखै जको पमुजमा आरमार वगखैरमा कके वलयके दबी गई हको। ''
16. The trial Court has considered only Section 7 of kavayad muafidaran but has failed to consider the other Sections of the same particularly Section 5(4) and 13 thereof. These provisions were the subject matter of interpretation before a Division Bench of this Court in the case of Pancham Singh V/s. Ramkrushna Guru Ramdas and Others AIR 1972 MP 14 which has been approved by the Apex Court in the case of State of Madhya Pradesh and Others V/s. Pujari Utthan Avam Kalyan Samiti and Another (2021) 10 SCC 222. Therein the Division Bench considered a parvana issued by the Aukaf Department whereby muafi land had been granted to the pujari. The same was for upkeep of the temple in relation to which the same was granted. Interpreting Section 13 it was held that the pujari does not have Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 17-05-2025 17:04:44 NEUTRAL CITATION NO. 2025:MPHC-IND:12927 14 the status other than that of a Manager. He could get the lands cultivated either by himself or through servants but had no right to alienate the same in any manner. It was his duty to keep lands under cultivation so that the income derived therefrom could be applied towards the pooja and upkeep of the temple. The muafi land all the while belong to the Government. The pujari was, therefore, not a kastkar maurusi or a government lessee or an ordinary tenant of the muafi land but was merely holding it on behalf of the aukaf department for purposes of management. A pujari cannot be recorded as a maurusi kashtkar or an ordinary tenant. He could never become a pakka tenant under Section 54 (vii) of Madhya Bharat Land Revenue and Tenancy Act, 1950. The muafi lands are always recorded as milkiyat sarkar under the aukaf department. The whole purpose of the grant which was for upkeep of the temple would be frustrated if the muafi lands were allowed to be sublet by the pujari and new rights created in favour of a stranger. The relevant part of the judgment is as under :-
"5. The Court held as under : (Pujari Utthan Avam Kalyan Samiti case [State of M.P. v. Pujari Utthan Avam Kalyan Samiti, 2016 SCC OnLine MP 2050] , SCC OnLine MP para 10) "10. The learned writ court relying on the decision of the cases of State of M.P. v. Ghanshayamdas [State of Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 17-05-2025 17:04:44 NEUTRAL CITATION NO. 2025:MPHC-IND:12927 15 M.P. v. Ghanshyamdas, 999 RN 25] , Kanchaniya v. Shiv Ram [Kanchaniya v. Shiv Ram, 1992 Supp (2) SCC 250] and Panchamsingh v. Ramkishandas Guru Ramdas [Panchamsingh v. Ramkishandas Guru Ramdas, 1971 SCC OnLine MP 26] has held that right of Pujaris continued from their forefather, cannot be taken away by executive instructions. There was no justification on the part of the State Government to advice to Revenue Commissioner to follow Circular dated 21-3-1994, when the same was quashed. It is not in dispute that as per Clause 5 of the Land Records Manual in Column No. 3 of Khasra Entries deals with the name of occupier; Column No. 4 deals with name of bhoomiswami or lessees or his representatives while Column No. 12 deals with the remarks. Undisputedly, the land, which is owned by the temple or deity or the land owned by temple or by the trust, name of the deity/temple or trust, as the case may be, is required to be mentioned in Column No. 3. If the temple is managed by the Pujari, then keeping in view the law laid down by this Court from time to time, his name is required to be mentioned as Pujari along with the name of the deity."
(emphasis supplied) (xxvii) preparation and maintenance and revision of land records under Section 121."
9. We have heard the learned counsel for the parties and find that there is lack of clarity in the High Court in regard to the legal jurisprudence. Different judgments have been referred to in respect of rights of the priests as to whether they can be treated as Bhumiswami or if they only hold the temple land for the purpose of management of the property of the temple, which actually vests with the deity.
10. One of the earliest judgments on the right of a priest was rendered by the Division Bench of Madhya Pradesh High Court reported as Panchamsingh v. Ramkishandas Guru Ramdas [Panchamsingh v. Ramkishandas Guru Ramdas, 1971 SCC OnLine MP 26] . Section 13 of the Qawaid Muafidaran Jujve Araji, Samwat 1991 (hereinafter referred to as "the Gwalior Act") was examined as to the remedy of ejectment of a pujari who claimed status of mourushi kashtakar as under Section 248(1) of the Code or by way of a civil suit. It was held that a Pujari is not a Kashtkar Mourushi i.e. tenant in cultivation or a government lessee or an ordinary tenant of the muafi lands Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 17-05-2025 17:04:44 NEUTRAL CITATION NO. 2025:MPHC-IND:12927 16 but holds such land on behalf of the Aukaf Department for the purpose of management.
11. The High Court held as under :
"7. ... The muafi lands all the while belonged to the Government. The former Pujari was, therefore, not a Kashtakar Mourushi or a Government lessee or an ordinary tenant of the muafi lands, but was merely holding them on behalf of the Aukaf Department for purposes of management.
***
12. On a plain reading, the definition excludes a Pujari. The former Pujari was, therefore, not a Kashtakar Mourushi of the muafi land, but was merely holding them on behalf of Aukaf Department for purposes of management. Under the 2nd Proviso to Section 365 of the Qanoon Mai, Gwalior, he had no right of transfer. ...
***
16. We are, therefore, of the view that the former Pujari had no other status than that of a manager of the lands on behalf of the Aukaf Department. While it is accepted before us that the former Pujari had no right of transfer by mortgage or sale, it is urged that there was no restriction on sub-letting. It is also urged that the terms "mourushi kashtakar" and "Dakhilkar Kashtakar Bila Lagani" were synonymous and that, as every mourushi kashtakar had the right to sub-let, it necessarily follows that a Dakhilkar Kashtakar Bila Lagani had also a similar right. We are unable to agree with this line of reasoning. It would be repugnant to the nature of the grant itself to clothe such a person with a right of transfer of any kind. The whole purpose of the grant, which was for the upkeep of the temple, would be frustrated if the muafi lands were allowed to be sublet by the Pujari and new rights created in favour of a stranger.
17. Where a grant of land is made in consideration for service to be rendered by a grantee, in lieu of wages, it is an implied condition of the grant that if the services are not performed or are not required, the grant can be resumed. The Parwana expressly stated that the grant in favour of the former Pujari was resumable for breach of any of the conditions set out therein, or upon his death or removal. The death of the former Pujari was, in the instant case, the terminal point. That being so, the grant lapsed with his death. As the grant created no interest in favour of the Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 17-05-2025 17:04:44 NEUTRAL CITATION NO. 2025:MPHC-IND:12927 17 former Pujari, whatever rights the petitioners father, Thakur Murlidnarsingh had, also lapsed and he became a rank trespasser."
(emphasis supplied)
12. This Court in a judgment reported as Kanchaniya v. Shiv Ram [Kanchaniya v. Shiv Ram, 1992 Supp (2) SCC 250] considered the Gwalior Act as well as the Code. The decision of the High Court in Panchamsingh was approved, and it was held as under :
"15. Shri Shiv Dayal has submitted that the learned Judges of the Division Bench of the High Court were in error in holding that a Pujari was not a Kashtakar Mourushi of the muafi land and that the said finding is contrary to the language of Section 13 of Kawaid Maufidaran wherein it is clearly stated that the Pujari would have the rights of a Kashtakar Mourushi. According to Shri Shiv Dayal the only limitation on the rights of the Pujari as a Kashtakar Mourushi was that contained in Section 265 of the Qanoon Mal whereby he was precluded from selling or mortgaging the muafi lands but there was no provision restricting his right to create a lease for cultivation of the lands. We are unable to agree. Although under Section 13 of Kawaid Maufidaran, the right of a Kashtakar Mourushi have been conferred on the Pujari and under 265 of the Qanoon Mal, the restriction on his right was with regard to sale and mortgage only but it cannot be ignored that under Section
13 of Kawaid Maufidaran the right of a Kashtakar Mourushi which have been conferred on the Pujari is subject to the overriding condition that in case he does not perform his duties properly, he can be removed and another Pujari can be appointed and a patta could be issued in his favour. This is also borne out by definition of the expression "Kashtakar Mourushi" in Section 2(29) of the Qanoon Mal which imposes the condition that the Aukaf Department would be entitled to dispossess, without an order of the court, the Pujari who obtains the right of Kashtakar Mourushi on the basis of Kawaid Maufidaran and who does not render his services properly. The matter is further made clear by the prescribed form of the Parwana which is issued to the Pujari wherein it is also clearly mentioned that Pujari does not have any right in the land and his status is that of a manager and that he could get the land cultivated either himself or through others so that the income derived Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 17-05-2025 17:04:44 NEUTRAL CITATION NO. 2025:MPHC-IND:12927 18 therefrom could be applied towards worship and upkeep of the temple and that the grant would be resumed for breach of any of the conditions or upon the death of the former Pujari. In other words, the rights of the Pujari do not stand on the same footing as those of a Kashtakar Mourushi in the ordinary sense who was entitled to all rights including the right to sell or mortgage. We are, therefore, in agreement with the view of the Division Bench of the Madhya Pradesh High Court in Panchamsingh case that a Pujari had no other status than that of the manager functioning under the control of the Aukaf Department and he had no right to transfer, either by way of sale or mortgage or by lease, the land entrusted to him. In that view of the matter, it must be held that the patta granted in favour of Malkhan by Vasudev Rao, father of Respondent 1, was not valid and did not confer any right or interest on Malkhan in the land covered by the said patta."
(emphasis supplied)
13. This Court further held that temple land does not fall in any of the excepted categories in Section 2(1)(z-3), therefore, it was unoccupied land and set apart for a public purpose i.e. for the upkeep of the temple. It was thus held that patta granted in favour of Malkhan to cultivate the land in dispute came to an end on the death of Malkhan and the possession of the appellant over the land in dispute as legal heirs of Malkhan cannot be said to be authorised by Respondent 1 :
"19. The land in dispute does not fall in any of the excepted categories mentioned in Section 2(1)(z-3). It must, therefore, be held to be unoccupied land. Since it was set apart for a public purpose viz. for the upkeep of temple, it can be said to be land set apart for a special purpose under clause (j) of sub-section (1) of Section 237 of the Code. What has to be seen is whether the possession of Malkhan of the same was unauthorised. It has been urged on behalf of the appellants that the possession of Malkhan could not be said to be unauthorised on the date of the filing of the application by Respondent 1 in view of the fact that Vasudev Rao, father of Respondent 1, had granted a patta permitting Malkhan to cultivate the land during his (Malkhan's) lifetime and after the death of Vasudev Rao, Respondent 1 had also granted a patta permitting Malkhan to continue in cultivation of the land in dispute and had Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 17-05-2025 17:04:44 NEUTRAL CITATION NO. 2025:MPHC-IND:12927 19 been receiving Rs 100 annually as rent from Malkhan. ... In view of the death of Malkhan during the pendency of the writ petition in the High Court, the question whether Respondent 1 has granted a patta permitting Malkhan to cultivate the land in dispute during his lifetime, does not survive because even if it is held that the patta granted in favour of Malkhan by Respondent 1 permitted Malkhan to cultivate the land in dispute during his lifetime, the said authority under which Malkhan was in possession of the disputed land came to an end on the death of Malkhan and the possession of the appellants over the land in dispute after the death of Malkhan cannot be said to be authorised by Respondent 1."
14. A circular was issued on 28-5-1979 regarding the Devesthani land in respect to control and management of the land attached to the temples, in accordance with the manner mentioned in the circular. In the said circular, there was a restriction that the agricultural land owned by religious institutions should not be leased out for a period of more than 3 years. The priests were allowed to lease up to first 10 acres of land for self-cultivation for maintenance and for management of temple without any auction and without any lease rent. Another 10 acres could be given to the Pujari for his self-agricultural purposes but on payment of lease rent. Such rent was to be deposited in the name of the deity and could be used for the maintenance of the temple. The remaining land could be leased by auction.
15. The policy of auction was challenged by way of a writ petition. The said writ petition was allowed. The order passed by the learned Single Judge was challenged in appeal in a judgment reported as State of M.P. v. Mandir Shri Khande Rao [State of M.P. v. Mandir Shri Khande Rao, 1999 RN 392] . The Bench relied upon the earlier Division Bench judgment reported as Ghanshayamdas (2) . However, while referring to the Gwalior Act, the Court held as under:
"13. We are of the considered opinion that the provisions contained in Regulation 13 clearly envisaged the continuance of the muafi and the rights vesting in the deity in respect of its properties including the agricultural holdings till the vesting of the ownership thereof in the State under the Management of its department of "Aukaf"
relating to 'Devasthan'. It is obvious, therefore, that so long Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 17-05-2025 17:04:44 NEUTRAL CITATION NO. 2025:MPHC-IND:12927 20 as the rights of Muafidar were not extinguished vesting the properties including the agricultural holdings in the State and the revenue records were corrected showing the same as 'Milkiat Sarkar' under the management of department of Aukaf relating to Devasthan, there could be no occasion for interfering in the management of the holding/land vesting in the Deity/Devasthan in any manner including the grant of temporary leases for the purpose of cultivation taking recourse to auction treating the holdings of the deity as 'Milkiat Sarkar' even though none of the conditions contemplated under Regulation 13 stood satisfied."
16. The Court held that, with respect to the State's right to auction the property of the temple, once the land is vested with the deity/temple, the State cannot have a right to auction the property of the temple.
17. In Ghanshyamdas (1) , the learned Single Bench was not apprised of the judgments of the Division Bench in Panchamsingh or of this Court in Kanchaniya and the same are not referred in the judgment. The Single Bench thus held that the proprietary rights conferred on a pujari could not be brought to an end by an executive instruction. The said judgment was partly overruled in Ghanshayamdas (2)."
17. In State of M.P. and Others V/s. Pujari Utthan Avam Kalyan Samiti and Another (2021) 10 SCC 222 the Apex Court has held that the pujari is not a kashtkar maurusi i.e. tenant in cultivation or a government lessee or an ordinary tenant of the muafi lands but holds such land on behalf of the aukaf department for the purpose of management. The pujari is only a grantee to manage the property of the deity and such grant can be resumed if the pujari failed to do the tasks assigned to him. He cannot be treated as a Bhumiswami. His status is Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 17-05-2025 17:04:44 NEUTRAL CITATION NO. 2025:MPHC-IND:12927 21 only that of a Manager. Rights of pujari do not stand on the same footing as that of a kashtkar maurusi in the ordinary sense. It was held as under :-
"23. This question has already been considered by the courts in Panchamsingh [Panchamsingh v. Ramkishandas Guru Ramdas, 1971 SCC OnLine MP 26] , which has further been affirmed by Kanchaniya [Kanchaniya v. Shiv Ram, 1992 Supp (2) SCC 250] . The law is clear on the distinction that the Pujari is not a Kashtkar Mourushi i.e. tenant in cultivation or a government lessee or an ordinary tenant of the muafi lands but holds such land on behalf of the Aukaf Department for the purpose of management. The Pujari is only a grantee to manage the property of the deity and such grant can be reassumed if the Pujari fails to do the task assigned to him i.e. to offer prayers and manage the land. He cannot be thus treated as a Bhumiswami. The Kanchaniya further clarifies that the Pujari does not have any right in the land and his status is only that of a manager. Rights of pujari do not stand on the same footing as that of Kashtkar Mourushi in the ordinary sense who are entitled to all rights including the right to sell or mortgage.
26. Taking into consideration the past precedents, and the fact that under the Gwalior Act, Pujari had been given the right to manage the property of the temple, it is clear that that does not elevate him to the status of Kashtkar Mourushi (tenant in cultivation).
27. The ancillary question which arises is whether the priest is Inamdar or Maufidar within the meaning of Section 158(1)(b) of the Code. Such provision contemplates that the rights of every person in respect of land held by him in the Madhya Bharat region i.e. area of erstwhile Gwalior and Holkar as a pakka tenant or as a Muafidar, Inamdar or concessional-holder shall be protected as Bhumiswami. The priest does not fall in any of the clauses as mentioned in Section 158(1)(b) of the Code. The muafi was granted to the property of temples from payment of land revenue. Such muafi was not granted to a manager. Even Inam granted by the Jagirdar or the ruler to a priest is only to manage the property of the temple and not confer ownership right on the Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 17-05-2025 17:04:44 NEUTRAL CITATION NO. 2025:MPHC-IND:12927 22 priest. Therefore, in view of the judgment in Panchamsingh [Panchamsingh v. Ramkishandas Guru Ramdas, 1971 SCC OnLine MP 26] and also of this Court in Kanchaniya [Kanchaniya v. Shiv Ram, 1992 Supp (2) SCC 250] , the priest cannot be treated to be either a Muafidar or Inamdar in terms of the Madhya Bharat Land Revenue and Tenancy Act, Samvat 2007 (Act 66 of 1950) or in terms of the Gwalior Act. Since the priest cannot be treated to be Bhumiswami, they have no right which could be protected under any of the provisions of the Code."
18. In the aforesaid judgment it was also held that the pujari does not fall in any of the clauses as mentioned in Section 158 (1)(b) of the Code, 1959. Muafi land granted to the pijari does not confer ownership rights upon him. He cannot be treated to be either a muafidar or inamdar in terms of Madhya Bharat Land Revenue and Tenancy Act, 1950 or in terms of the Gwalior Act. Since he cannot be treated to be a Bhumiswami he does not have any right which could be protected under the provisions of the Code, 1959. Thus when the pujaris themselves who are plaintiffs in the present case could not have been conferred the status of Bhumiswami then either husband of defendant No.1 or defendants 1 to 5 who had only taken the land on Shikmi or as a sub tenant of the pujaris also cannot claim conferral of the status of Bhumiswami.
19. Though the trial Court has held that the patta of the suit land was Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 17-05-2025 17:04:44 NEUTRAL CITATION NO. 2025:MPHC-IND:12927 23 granted in favour of plaintiff's predecessors in respect of muafi land for worshiping of the temple but it has failed to consider the legal propositions as have been laid down in the aforesaid cases. Pertinently the order dated 31.03.1932 (Ex.P/3) records the temple/deity to be the owner of the suit land and further records that the same deserve to be granted on patta for management of the temple. Thus, the grant which has been made of the suit land in favour of predecessors of plaintiffs was only in the capacity of muafidar while the deity remained to be the owner thereof. Merely on the basis of giving of the suit land on Shikmi to husband of defendant No.1 and subsequently to defendants 1 to 4 the status of Bhumiswami was not conferred upon them as has been illegally held by the trial Court.
20. Thus in view of the aforesaid discussion, FA No.524/1998 preferred by the plaintiffs is allowed and the suit filed by them for declaration of title, declaration that order dated 21-02-1984 passed by the Board of Revenue is illegal and for possession stands decreed. Since FA No.246/2000 has been preferred by State of Madhya Pradesh only against findings recorded by the trial Court and also for the reason that plaintiff's claim has decreed, the same is dismissed. There shall be no Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 17-05-2025 17:04:44 NEUTRAL CITATION NO. 2025:MPHC-IND:12927 24 orders as to costs.
21. Let a decree be drawn accordingly.
(PRANAY VERMA) JUDGE ns Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 17-05-2025 17:04:44