Summary
The ruler of the former Gwalior State by way of maufi gave 78 Bighas 17 Biswas of Agricultural land to a temple of Shri Ram Janakiji.
The father of respondent no.1 was the Pujari of the temple and he was described as the Maufidar in the revenue records. The maufi grant was revoked and the maufi land was handed over to the Department of Aukaf as Government property vide Circular dated August 13, 1934 of the Government of Gwalior State.Mutation was made of the agricultural land as Govern- ment property and its management was handed over to the Pujari, the father of respondent No. 1 On the death of the Pujari, his son, the respondent No.1's name was mutated by the Collector's order dated March 26, 1960.Out of the agricultural land, 19 Bighas 8 Biswas was given by the father of respondent No.1 to one Malkhan, the prede- cessor of the appellants for cultivation and he continued to cultivate the same even after the death of respondent No.1's father.671 In 1967, respondent no.1 moved an application under section 248(1) of the Madhya Pradesh Land Revenue Code, 1959 before the Tehsildar for eviction of the predecessor of the appellants, Malkhan, alleging that he was in unauthorised possession of the land measuring 19 Bighas 8 Biswas.The Tehsildar initially passed an order for ejectment against Malkhan treating him as a trespasser.On appeal the order was set aside and the matter was remanded for reconsideration. Therefore, the Tehsildar recorded evidence and rejecting the application of respond- ent no.1, held that land was given by respondent No.1 to Malkhan on lease for his life and as the said lease was still effective, Malkhan was not in unauthorised possession of the land.The Tehsildar's order was affirmed in appeal by the Sub-divisional officer.Second appeal filed by respondent No.1 was allowed by the Additional Commissioner holding that the priest of the temple could only manage the affairs of the temple and he could either himself cultivate the land of the temple or get the same cultivated by any other person, but he could not change the ownership of the temple and since the priest was not the land-owner, he had no right to lease out the land of the temple to any other person and the lease given by him was meaningless and illegal and ineffective since the land in question was Aukaf property.Malkhan filed a revision before the Board of Revenue which was allowed wherein it was held that the State Government gave the land for worship and service in the temple cultivating the land by the priest of the temple or getting it cultivated by somebody else. It was also held that the father of respondent No.1 allotted the land to Malkhan for his life time and that under the authority of the said patta, Malkhan was in possession and he had made improvements on the land and that respondent No.1 was regu- larly receiving Rs.100 annually towards the land revenue and also passed over its receipt.The Board of Revenue's order was challenged by respondent No.1 filing a writ petition in the High Court, which was allowed by a Single Judge. The High Court held that the application of the Pujari was maintainable under s.248(1) of the Code; that the Board of Revenue was wrong 672in treating the possession of Malkhan as authorised; that section 168(4) of the Code was not applicable to the present case because the land in dispute was Aukaf land and neither the deities nor the respondent No.1 could be regarded as the Bhumiswamis thereof. Restoring the order passed by the Additional Commissioner, the High Court ordered the eviction of the appellants from the land in accordance with the provisions of section 248 of the Code.Against the Judgment of the High Court this appeal by special leave was filed by the lessees.The appellants urged that the High Court was in error in holding that Malkhan (lessee) was in unauthorised possession of the land and that the application filed by respondent no.1 under section 248(1) of the Code was maintainable; that it was competent for father of the respondent No.1 (lessor) to grant a sub-lease in favour of Malkhan in view of the relevant law applicable to the land in the former State of Gwalior; that after coming into force of the Code, lessee (Malkhan) acquired Bhumiswami rights over the said land with effect from October 2, 1960 that the decision of the Division Bench of the Madhya Pradesh High Court in Thakur Panchamsingh v. Mahant Ram, Kishan Das and ors. AIR 1972 MP 14 did not lay down the correct law; that respondent No.1, having inducted Malkhan as a tenant on the land in dispute, was estopped from asserting that he had no right to grant tenancy in favour of Malkhan and that posses- sion of lessee was unauthorised; that since Malkhan had been granted a patta by the father of respondent No.1 (lessor), which was valid for life time of Malkhan and respondent no.1 addmitted having received rent from lessee after the death of the lessor, the Board of Revenue rightly held that pos- session of the lessee was authorised and that the High Court was not justified in interfering with the order passed by the Board of Revenue in exercise of its jurisdiction under Article 226 of the Constitution.Dismissing the appeal, this court, Held: 1.01. 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 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 673Pujari. 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. [683 A-C]1.02. The Pujari or the manager of the Devasthan holds the lands given to him under the Parwana issued under s.13 of the Kawaid Maufidaran of Gwalior State as a manager of Government property. He functions under the overall control and supervision of the Aukaf Department because in the event of his failure to properly manage the affairs, he can be removed and the Parwana issued in his favour can be revoked.Since under the terms of the Parwana, the Pujari or the manager can get the land given for the worship and upkeep of the Devasthan cultivated by some other person, it is necessary that the Aukaf Department exercises control in the matter of initiation of proceedings for ejectment of a person who is allowed to cultivate by the Pujari or the manager which means that the proceedings for such ejectment under s.248(1) of the Code should be initiated by the Pujari or manager only after obtaining the approval of the Aukuf Department. [686 B-D]1.03. A Pujari had no other status than that of the manager functioning under the control of the Aukuf Depart ment and he had no right to transfer, either by way of sale or mortgage or by lease, the land entrusted to him. [683 C]1.04. Once it is held that Pujari (lessor), father of respondent No.1 was not competent to grant a lease in respect of the land in dispute and the patta granted by him in favour of Malkhan (lessee) was invalid and no rights were conferred on Malkhan in the land as a result of the patta, the claim of the appellants that they have acquired Bhumis- wami right on the land in dispute cannot be sustained. [683E]1.05. Since no rights were created in favour of Malkhan under the patta granted by the lessor, Malkhan (lessee) cannot claim to be a subtenant of the land in dispute on the date of the commencement of the Code and, therefore, the submission that of Malkhan had acquired Bhumiswami rights over the land in dispute cannot be accepted. [684 A-B]1.06. In 1967, when the application was moved by respondent no.1, s.248(1) empowered the Tehsildar to summarily eject any person who unauthorisedly takes or remains in possession of any occupied land, abadi, 674service land or any land which has been set apart for any special purpose under s.237. [684 C]1.07. The land in dispute does not fall in any of the excepted categories mentioned in s.2(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-s.(1) of s.237 of the Code. [684 E]Thakur Pancham Singh v. Mahant Ramkishandas and Ors.AIR 1972 MP 14, approved.2.01. In view of the death of Malkhan during the pendency of the writ petition in the High Court the question whether respondent No.1 has granted a patta permitting Malkhan to cultivate the land in dispute during his life time, does not survive because even if it is held that the patta granted in favour of Malkhan by respondent no.1 permitted Malkhan to cultivate the land during his life time, the said authority under which Malkhan was in possession of the 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 no.1. [685 A-C]2.02. Malkhan had died during the pendency of the writ petition in the High Court and, as a result, the possession of the appellants has become unauthorised, since then. The appellants cannot, therefore, seek relief on the ground that their possession over the land in dispute is not unauthorised and they cannot be evicted under s.248(1) of the Code. [685 H-686 A]Lachmeshwar Prasad Shukul and Ors. v. Keshwar Lal Chaudhuri and Ors., 1940 FCR 84, Patterson v. State of Alabama. [1934] 294 US 600, at page 607 and Qudrat Ullah v.Municipal Board, Bareilly, [1974] 2 SCR 539, referred to.3. In the instant case, the Board of Revenue, has stated that respondent no.1 has never cultivated the land and has no arrangement for cultivation and that even if the land is given in his possession he would give it to somebody else for cultivation. In these circumstances, it is directed that a senior official in the Aukuf Department of the Gov- ernment of Madhya Pradesh should examine whether the appel- lants can be per- 675mitted to cultivate the land in dispute on terms as suitably revised and till the matter is so considered, the appellants are no dispossessed from the land in dispute. [686 D-F]See the full content of this document
Extract
Mst. Kanchaniya And Ors. VS. Shiv Ram And Ors.
PETITIONER: MST. KANCHANIYA AND ORS.Vs.RESPONDENT: SHIV RAM AND ORS.DATE OF JUDGMENT22/04/1992BENCH: AGRAWAL, S.C. (J)BENCH: AGRAWAL, S.C. (J)FATHIMA BEEVI, M. (J)CITATION: 1992 AIR 1239 1992 SCR (2) 670 1992 SCC Supl. (2) 250 JT 1992 (3) 174 1992 SCALE (1)868ACT: Madhya Pradesh Land Revenue Code, 1959--Sections 2,237, 248(1) read with Section 13, kawaid Maufidaran of Gwalior State--Maufi land--Control of Aukaf Deptt. of Government-- Mutation of land in the name of Maufidar (Pujari of the temple)--Whether Pujari can lease out--Whether lessee acquired Bhumiswami rights on the commencement of the Code-- Possession of land by the lessee whether authorised-- Ejection of lessee--Validity of.Constitution of India, 1950--Article 226--Writ petition under--Pendency--Death of lessee--Effect of.Constitution of India, 1950--Article 136--Appeal-- Appreciation of evidence--Legal heirs of lessee not cultivated the maufi land--Direction to Govt. to determine whether permission to be given for cultivation.JUDGMENT: CIVIL APPELLATE JURISDICTION : Civil Appeal No. 4010 of 1983.From the Judgment and Order dated 6.10.1980 of the Madhya Pradesh High Court in Misc. Petition No.12 of 1973.Shiv Dayal and S.K. Gambhir for the Appellants.S.K. Bagga, Sheeraj Bagga, Mrs. Surestha Bagga, V.K.Sapre and S.K. Khandekar for the Respondents.The Judgment of the Court was delivered by S.C. AGRAWAL, J. This appeal by special leave is directed against the judgment of the High Court of...
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