HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR

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1 HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S. B. Civil Writ Petition No / 2013 Shri Narshingh Dwara Meetharamji Sthan Desh Shahar Udaipur, Near Gulab Bag, Raoji Ka Hata, Udaipur through Mahant Ramchandra Das Ji, Chela Chuturbhuj Dasji, aged about 56 years Versus ----Petitioner 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 Connected With S. B. Civil Writ Petition No / 2009 Ashok Singh Chouhan son of Late Shri Bheru Singh, aged about 60 years, by caste Rajput, Resident of Rani Road, Udaipur Versus 1. Board Of Revenue, Rajasthan, Ajmer 2. Revenue Appellate Authority, Udaipur 3. Deputy District Collector, Girwa, Udaipur ----Petitioner 4. Magna son of Shri Unkarji, by caste Dangi, Resident of Shobhagpura, Tehsil Girwa, District Udaipur 5. Shantilal son of Shri Kanhaiyalal Mehta, Resident of 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 Gulabbag, Raoji Ka Hatta, Udaipur through its Mahant Ramchandradas 9. The State of Rajasthan through Tehsildar, Girwa, District Udaipur

2 (2 of 12) 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 S.B. Civil Writ Petition No / Respondents State of Rajasthan through the Tehsildar, Girwa, District Udaipur. Versus ----Petitioner 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 S.B. Civil Writ Petition No / Respondents Shri Narshingh Dwara Meetharamji Sthan Desh Shahar, Udaipur, Near Gulab Bag, Raoji Ka Hata, Udaipur through Mahant Ramchandra Das Ji, Chela Chuturbhuj Das Ji, aged about 56 years. Versus ----Petitioner 1. Magna S/o Shri Unkar alias Onkar Dangi, Resident of Shobhagpura, Tehsil Girwa, District Udaipur 2. Shantilal S/o Shri Kanhaiyalal Mehta, Resident of 98/113, Bhupalpura, District Udaipur 3. Maheshchandra S/o Shri Madan Mohan Sharma, Resident of 123, Kharol Colony, Fatehpura, District Udaipur

3 (3 of 12) 4. Dharampal S/o Shri Lakshmichand Dembla, Resident of Inside the Street of Sugandh Meera Hotel, Sardarpura, District Udaipur 5. Urban Improvement Trust, Udaipur through its Secretary, Urban Improvement Trust, Udaipur 6. State of Rajasthan through the Tehsildar Girwa, District Udaipur 7. The Board of Revenue for Rajasthan, Ajmer 8. Ashok Singh Chauhan S/o Shri Bheru Singh Chauhan, by caste Rajput. Resident of Rani Road, Udaipur 9. M/s Dhehliwala Real Estate Pvt. Ltd. Hiran Magri, Sector -5 Udaipur ----Respondents For Petitioners : Mr. Sajja, Singh, Rajesh Shah & Mr. O.P. Boob, Govt counsel For Respondents : Mr. M.S. Singhvi, Sr. Counsel assisted by Mr. Arpit Bhoot, Mr.Sanjay Nahar with Mr. Hemant Bhati, Mr. Vivek Agarwal & Mr. Deelip Kawadia HON'BLE MS. JUSTICE NIRMALJIT KAUR 02/11/2017 Order All the above mentioned writ petitions shall stand decided by this common order as the order impugned therein is same. The Writ Petition Nos /2013 and 12409/2013 have been filed on behalf of the petitioner - Shri Narshingh Dwara Meetharamji Sthan Desh Shahar, Udaipur through Mahant Ramchandra Das Ji, Writ Petition No. 8136/2009 has been filed by the petitioner Ashok Singh Chouhan and Writ Petition No. 5755/2011 has been filed by the petitioner State of Rajasthan. For convenience, the facts are being taken from S.B. Civil Writ Petition No /2013 wherein the prayer is for quashing of

4 (4 of 12) the Judgments dated passed by the Board of Revenue, Ajmer as well as dated passed by the Sub-Divisional Magistrate, Girva with a further prayer to uphold the Judgment dated passed by the Revenue Appellate Authority, Udaipur. The petitioner-plaintiff filed a civil suit for perpetual injunction against the respondents-defendants. The respondentdefendant No. 1 in the present writ petition i.e. Magna submitted his written statement along with counter claim. It was alleged in the written statement that the land in question is in his khatedari and possession and he is in use and occupation over the same. Shri Narsingh Dwara Meetharam Ji Ka Mandir, Udaipur was Maufidar of the land in question and Onkar son of Shri Rataji Dangi was the khadamdar of the same and after coming into force of the Rajasthan Land Reform & Jagir Resumption Act, 1952, the Government became the land holder instead of Maufidar and Onkar son of Rataji Dangi became khatedar tenant instead of Khadamdar. Onkar son of Rataji Dangi died and the respondentdefendant No. 1 Magna being his successor is in possession over the land in question. It was alleged that as per Section 9 Khadamdar having become the khatedar, the respondentdefendant No. 1 also became khatedar and has been recorded as Khatedar since Samvat It was alleged that during the course of settlement, without serving notice to him, the land in question has been recorded in the name of the petitioner-plaintiff. The Settlement Department without any basis or orders of any

5 (5 of 12) competent authority deleted the name of the respondentdefendant No. 1 Magna from the record and the name of the petitioner-plaintiff has been recorded and therefore, it was prayed to dismiss the suit of the petitioner-plaintiff and decree the counter claim. The trial court rejected the suit of the petitionerplaintiff vide Judgment dated and allowed the counter claim of the respondent-defendant No. 1 by declaring him as Khatedar tenant. The State of Rajasthan, which was also aggrieved by the Judgment and Decree dated , filed an appeal before the first appellate court. Another appeal was filed by one Ashok Singh Chouhan, who is petitioner in Writ Petition No. 8136/2009. The first appellate court set aside the Judgment and Decree dated vide its Judgment dated and allowed the appeals. Being aggrieved, the respondent No. 1 Magna filed two separate appeals before the Board of Revenue, Ajmer. The Board of Revenue allowed the appeals vide Judgment dated Separate writ petitions have been filed by respective parties against the same common Judgment dated Learned counsel for the petitioner-plaintiff while praying for setting aside the judgments impugned passed by the Board of Revenue as well as Sub-Divisional Magistrate contended that the petitioner is idol/perpetual minor and its rights cannot be and could not be defeated by any illegality, mistake and manipulation. Umkar was not recorded as Khadamdar before the enforcement of the Rajasthan Tenancy Act, 1955 or at the time of Rajasthan Land

6 (6 of 12) Reforms & Resumption of Jagiri Act, Umkar was a Shikmi and therefore, he was not entitled to get any rights of Khatedari in the land in question. Therefore, the respondents- defendants are also not entitled to get any relief. The Board of Revenue has misread the material evidence available on record while passing impugned judgment and based its findings without any legal evidence and foundation. The interpretation of Section 9 of the Act of 1952 and Section 15 of the Act of 1955 by the court below is wrong, whereas, the status of Umkar and Magna, respondentdefendant recorded in revenue record was elaboratory considered by the first appellate court and after due consideration of the Kanoon of Mal Mewar as well as other local laws come to the conclusion that the defendants are not entitled to get any relief and counter claim filed by defendant - Magna was rejected. There is no evidence as such nor any entries available in favour of the defendants to sustain their claim as khadamdar and any manipulation made thereafter with change in entries in revenue record, then, such entries are apparently without jurisdiction and void ab initio. The defendants have further failed to prove that they or their predecessors had been entered into revenue record as Khadamdar in Samvat 2012 and prior to that. In absence of such proof, there is no occasion to decree the counter claim as prayed by him and therefore, viewed from any angle, the judgment impugned is liable to be set aside. The respondentdefendant No. 1 Magna including other persons remained as Mahant/Manager of the property in question. Hence, they are just

7 (7 of 12) custodian and trustees of the properties in question. The temple was shown as khatedar of the land in Samvat and therefore, such entry cannot be read to the contrary. Learned counsel for the respondent State too submitted that in the record of settlement of the Samvat 1987, the aforesaid land measuring 10.9 bighas was recorded as Doli land in the revenue record and Sant Swaroopdas Guru Ramkishan Das Khaki, Sakir Shahar Mahant Ji Omkar S/o Rata Dangi was recorded as Shikmi or Murthin but when the first settlement took place, the land in question was recorded in the name of Unkar S/o Rata Dangi as a khatedari land and vide Mutation No. 111 dated , the same was wrongly recorded in the name of Magan S/o Unkar Dangi. However, Section 46 of the Act of 1955 provides exemption in exceptional cases in case of a minor and a person incapable of cultivating his holding by reason of physical disability or infirmity. An idol/deity falls in both the classes i.e. a minor as well as physically disabled or infirm person and the Manager or the State is under an obligation to protect the interest of such a minor or disabled person. Therefore, no person can acquire khatedari rights in the land belonging to a minor. The deity is a Khatedar of the land and the Pujari can never acquire the khatedari rights because the provisions of Section 46 of the Act of 1955 put an embargo on it. Similarly, according to the Kawayad Malufi Riyasat Mewar Samvat 2001, the respondentdefendant No. 1 Magna is not entitled to be a khatedar on the basis of being a Khadamdar. The respondent-defendant could not

8 (8 of 12) be and cannot be declared as Khatedar tenant. A perusal of the revenue record of Samvat 2010 clearly reveals that before coming into force the Rajasthan Tenancy Act, Magna son of Onkar Dangi, Kanna son of Teja Dangi and Nanda son of Rata Dangi were recorded as sub-tenant for the Araji No. 510, 511, 512 & 521. They are not recorded as Khadamdar. However, later on in Samvat 2013, they were recorded as Khadamdar, which is not said to be justified because according to the provisions of Section 52 without any order of the competent authority, the record could not be changed. No record has been produced that how and in what manner these persons were recorded in the revenue record in Samvat The question involved in the present case was also subject matter before the Full Bench of this Court in the case of Tara and ors. Vs. State of Rajasthan and Ors. reported in 2015(4) RLW 2721 (Raj.) wherein while deciding the Question No. (i) whether the land held in Jagir, by Hindu Idol (Deity) as Dolidar or Maufidar cultivated by a person other than the Shebait/Pujari of the Deity or by hired labouor or servants engaged by its Shebait/Pujari as a tenant of the deity such idol being treated as a perpetual minor, will still be regarded as land held in the personal cultivation of the deity or will such land be regard as held in the tenancy by the person cultivating such land as tenant of a deity?, the Court answered the same in Para 26 of the judgment as under :-

9 (9 of 12) 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 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 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 null and void, in contravention of the Jagirs Act 1952, and the land under such transfers to be resumed by the State. The second question i.e. Question No. (ii) What are the rights of the Hindu Idol (deity) in the lands held by them in the name of its Shebaits/Pujari on the date of resumption of such Jagir, under the provisions of the Rajasthan Land Reforms & Resumption of Jagir Act, 1952?, was decided in Para 30 of the judgment as under :- 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

10 (10 of 12) sub-tenants were resumed by the Jagirs Act of 1952 and that the Hindu idol (deity) lost all the rights in such jagir lands. The said issues having been settled as above, on facts, the Board of Revenue in the case in hand had held in Para 11 of its judgment in no uncertain terms that the respondent Magna S/o Unkar alias Onkar Dangi was entered as Khadamdar in the revenue record at the time of commencement of the Rajasthan Tenancy Act in Samvat The translated version of the findings as recorded in Para 8 & 11 by the Board of Revenue after discussing the entire evidence on record are as under :- 8. From perusal of Ex.3A, 5A, 6A, 7A, 8A, 9A and 10A available on record, it is crystal clear that disputed land was in the name of Idol Narsingh through Meetha Lal as Mafi and Sant Swaroopdas Guru Ramkishan Das was mentioned as Mahant and Onkar S/o Ratna Dangi was mentioned as Khadamdar. Ex-2A Khasara Bandobast available on record and at Serial No. 76 of Khasra No. 510, 511, 512 and at Serial No. 78 Khasra No. 521 has been shown as Mafi Shashnik. Same situated has been shown in Ex-10A and in Column No. 14 Khatedar Narsingh through Meetharamji. in Column 15 tenant Sant Swaroopdas Guru Ramkishan Das with Onkar S/o Rata Dagi as Khadamdar has been shown. From perusal of these, it is clear that hit has been shown as Mafi Shashnik and Rs. 4 Aana 8 has been also shown. In the State Udaipur same has been found to deposit with the State. After coming into force of Rajasthan Tenancy Act in Samvat 2013 Khasra Girdawari has been entered as Magna S/o Onkar, Kana S/o Teja, Nanda S/o Rata Dangi as Agriculturist in the Column No. 6. In the Jamabandi of State Udaipur Mewar in Samvat 1987 Onkar S/o Rata Dangi has been shown as Khatedar. Therefore, it is clear on record that disputed land was of Idol Shri Narsingh through Meetharamji as Mafi Shashnik and Sant Swroopdas Guru Ramdas was as Mahant and Onkar S/o Rata Dangi was as Khadamdar.

11 (11 of 12) 11. From Revenue record, it is clear that before coming into force of Rajasthan Tenancy Act, Khadamdar was entered in the record and thereafter, in the revenue record Khadamdar also been entered therefore, it would be deemed that at the time of commencement of Rajasthan Tenancy Act i.e. in Samvat 2012 appellant was Khadamdar because before and after it in the revenue record, he was mentioned as Khadamdar and no Jamabandi has been prepared in during of this period. As per provisions of Section 9 of Jagir Resumption Act, 1952, before acquisition of Mafi, rights of Mafidar has been wasted into State Government and as per Kanoon Mal Mewar and as per Section 15 of Rajasthan Tenancy Act, they became Khatedar tenants. Meaning thereby instead of Mafidar in the revenue record, name of State Government has been entered and instead of Khatedar Tenant, name of Khadamdar has been entered. Plaintiffs has not produced any record which shows that disputed land was Khudkast land of Idol Narsingh through Meethramji. Learned counsel for the petitioner and the State made great efforts to dispute the finding and referred to Ex.1 wherein the land is recorded as Doli land and Sant Swaroopdas Guru Ramkishan Das Khaki, Sakin Shahar is entered as Mahant and Omkar S/o Rata Dangi is entered as Shikmi or Murthin meaning thereby that the respondent was only holding the land as Murthin and Shikmi. Reliance was also placed on Annexure-4 to contend that in the second settlement in Samvat , the land was remained in the khatedari of the Idol and in fact, the name of the respondent Magna stood deleted. Similarly, it was further argued that the respondent was shown as the Manager in Samvat 2046 as well as Samvat 2066 as per the Annexure-4 and 5, respectively. Although, this Court need not have gone into the facts in its jurisdiction under Article 227 of the Constitution of India in spite of the findings recorded by the Board of Revenue,

12 (12 of 12) even then, it is evident from the plaint itself that the petitioner filed the plaint in his capacity as Mahant and therefore, to say that the respondent was the Mahant or the Manager is contradictory on the face of it. Moreover, it is admitted by the petitioner-plaintiff in his cross-examination, which has been placed on record as Annexure-R-1/2 in Writ Petition No /2013 that he did not have any possession over the said land. It is admitted by him that the land remained with them in their capacity as Mahant and that they had never cultivated the said land. Further, the land was being cultivated by others. He also did not know as to where the land was situated. In fact, the documents placed on record show that the disputed land was in the name of the Idol Narsingh through Meethalal as Mafi and Sant Swaroopdas Guru Ramkishan Das was mentioned as Mahant and after coming of the Rajasthan Tenancy Act, the name of Onkar S/o Ratna Dangi was entered as Khadamdar. Therefore, it is clear that father of the respondent Magna i.e. Unkar alias Onkar Dangi was Khadamdar and the petitioner-plaintiff who has admittedly filed the plaint in his capacity as Mahant, in any case, has no right in view of the Full Bench judgment rendered in the case of Tara and ors (Supra). In view of the above discussion, this Court does not find any ground to interfere in the well reasoned judgment of the Board of Revenue impugned in the present writ petition. Dismissed accordingly. (NIRMALJIT KAUR), J. Inder/JrPA