B.S. Chauhan, J.
1. The instant writ petition has been filed against the judgment and order dated 17.9.1999 (Annx.4), by which the reference Under Section 82 of the Rajasthan Land Reforms Act, 1956 has been accepted against settlement entries made in Samvat Year 2020 (corresponding to 1963).
2. The facts and circumstances giving rise to this case are that the land in dispute, measuring 25 Bighas 15 Biswas of Khasra Nos.248 and 261 situate in the Revenue Estate of village Jayal (district Nagaur), belonged to deity Sri Raghunathji, whose Pujari was Shri Girdhari Das. The land used to be cultivated by one Hanuta Ram on behalf of the deity. During the settlement proceedings in the Samvat Year 2020. Hanuta Ram was shown, in column No. 5. as Khatedar - tenant instead of deity Sri Raghunathji through its Pujari Girdhari Das. When such entries came to the knowledge of the Additional District Collector, he sent the matter to the Settlement Commissioner, who, subsequently vide order dated 7.3.1998, referred the matter to the Director, Land Records, for necessary action and thereupon, vide order dated 1.7.1998, the reference was made to the Board of Revenue. Notice was issued to the present petitioner Idan S/o Shri Hanuta Ram to show cause as why the reference be not accepted. He contested the reference asserting that prior to the settlement proceedings, i.e. Samvat Year 2020 (1963), his father had been recorded as sub-tenant and upon coming into force of the Rajasthan Land Reforms and Resumption of Jagir Act, 1952 (for short, 'the Act'). Hanuta Ram, being the cultivator of the land, was recorded its Khatedar - tenant. On the contrary, on behalf of the State, it was submitted that the land in dispute belonged to the deity Sri Raghunathji and as he had never paid the rent and had never been recorded as tenant prior to the commencement of the Act, it was not permissible for any Settlement Authority to record Hanuta Ram as Khatedar-tenant. The learned Board of Revenue considered the rival contentions and recorded the finding of facts that at the time of settlement proceedings in 1963, the land belonged to deity Sri Raghunathji and petitioner's father Hanuta Ram had never been recorded as the tenant of the aforesaid land; 'it was incumbent upon the Settlement Officer to repeat the entries which were prevalent at the time of settlement proceedings' and when in 1963, at the time of settlement, the deity had been recorded as the owner of the land in absence of resumption of Jagir, petitioner's father could not have been shown as a tenant of the land on behalf of the deity and, therefore, the learned Board of Revenue accepted the reference. Hence this writ petition.
3. There can be no dispute to the settled legal proposition that the Settlement Department has no competence to change the kind of the land and the rights of the tenure-holders nor it can change the revenue entries or rights, nor it has the power to confer Khatedari rights on any person. The authority of the Settlement Department extends only to the normal settlement operations and entries in previous settlement have to be repeated. Failure on its part to ascertain how change in subsequent entries occurred without order of the Competent Authority makes the findings perverse.
4. On the contrary, this Court, in Temple Thakurji v. State of Rajasthan and Ors. and a Division Bench of this Court in MangiLal v. State of Rajasthan 1997(3) RLW 2017, placed reliance upon a large number of judgments of the Hon'ble Supreme Court including Bishwanath and Anr. v. Thakur Radhavallabhji and Ors. : [1967]2SCR618 and held that deity is a perpetual minor and as per the provisions of Section 46 of the Rajasthan Tenancy Act, 1955, its interest is to be protected by the State. Revenue Authorities and the Courts. The question of alienation of its property is not permissible save as provided under the law.
5. Mr. Vyas, learned Counsel for the petitioner, has placed reliance on the Division Bench judgment in Ram Lal and Anr. v. Board of Revenue and Ors. 1990 (1) RLR 161. wherein this Court considered the scope of provisions of Section 46 of the Act, 1955 and took the same view and reiterated what has been held by this Court in Mangi Lal (supra). While interpreting the provisions of the Act, it considered the provisions of the Act, particularly Section 2(1) 'Khudkasht' and 2(k) 'land cultivated personally' and placed reliance upon the judgment of the Hon'ble Supreme Court in Kalankar Devi v. State of Maharashtra : [1970]1SCR936 , wherein the Apex Court had held that the deity is a juristic person but it cannot cultivate the land personally. This Court took the view that if it was not in the Khudkasht of the deity, after resumption of the Jagir, the tenant would be accepted as a Khatedar and it would be entitled to have the said land.
6. The Act contains the definition Clauses as under:
2(i) 'Khudkasht' means any land cultivated personally by a Jagirdar and includes:
(I) any land recorded as Khudkasht, Sir, or Hawala in settlement records: and
(II) any land allotted to a Jagirdar as Khudkasht under Chapter IV.
2 (k) 'Land cultivated personally' with its grammatical variations and cognate expressions means land cultivated on one's own.
(i) by one's own labour; or
(ii) by the labour of any member of one's family; or
(iii) by servants or wages payable in cash or kind (but not by way of a share in crops) or by hired labour under one's personal supervision or the personal supervision of any member of one's family:
Provided that in the case of a person who is a widow or a minor or is subject to any physical or mental disability or is a member of the Armed Forces of the Union, or who, being a student of an educational institution recognized by the Government is below the age of twenty-five years, land shall be deemed to be cultivated personally even in the absence of such personal supervision.
2 (q) 'tenant' means a person by whom rent is, or, but for a contract, express or implied, would be payable in respect of Jagir land, and save as otherwise expressly provided, includes a sub-tenant but does not include a tenant, for a fixed term of years.
7. It is clear from the aforesaid provisions that if the land is being cultivated by the labour of any member of one's family or by servants of the Jagirdar, it may be deemed to be land cultivated personally and ultimately it may tantamount to Khudkasht. The exception has been carved out by the proviso to the effect that in case of a minor or a person suffering from physical or mental disabilities, the land shall be deemed to be cultivated personally even in absence of such personal supervision. This Court, in Ram Lal, concluded as under:
Thus, it is clear that either it must be cultivated with one's own labour or the labour of the family member or by servant on wages payable in cash or kind but not by way of share in crops. On the resumption of Jagir the Khudkasht land remained with the Khatedar and the other land vested in the State. Under Section 9 of the Act of 1952, every tenant in a Jagir land who at the commencement of this Act is entered in the revenue as a Khamdar, Pattedar 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.
8. In the instant case, there is no proof that the petitioner's father had ever been shown as tenant in the revenue records prior to the settlement proceedings; nor there is any order or resumption under the Act. In absence of any competence of the Settlement Authorities to change the nature of the land or entries in the revenue records, there was a legal obligation on their part to repeat the entries as had been shown at the time of commencement of the Act. Even before this Court, no document has been placed to show that petitioner's father had ever been shown as Khudkasht tenant prior to the settlement proceedings. The entries made by the Settlement Authorities were without any jurisdiction and hence while accepting the reference, the learned Board has not committed any error and the impugned order does not suffer from any illegality warranting interference by this Court.
9. In Budha v. Ami Lal (1991) 2 SCC 41. the Hon'ble Supreme Court, while interpreting the provisions of the Raj as than Jamidari & Biswedari Abolition Act, 1959, held that Khudkasht land means that the land was in actual possession and cultivation of the Jamidari on the date of vesting. As the said Act of 1959 does not contain the definition of 'Khudkasht' land, the provision under the 1958 Act has been provided and the Hon'ble Supreme Court interpreted it to mean as only in personal cultivation. Same view has been reiterated in a recent judgment of the Supreme Court in Beer Singh v. Pyare Singh : [2000]2SCR111 .
10. The case also requires to be considered from another angle. The said judgments are not of universal application as in none of the cases referred to above, the Court had considered the scope and application of doctrine of 'lex non cogit ad impossibilia' (the law does not compel a man to do what he cannot possibly perform) and 'impossibilium nulla obligatio est' (the law does not expect the party to do the impossible). The scope of the said doctrines have elaborately been considered and applied by the Hon'ble Supreme Court in Chandra Kishore Jha v. Mahaveer Prasad and Ors. : AIR1999SC3558 ; and Mohammed Gazi v. State of M.P. and Ors. (2000) 4 SCC 342. These maxims or as the same are also expressed as impotentia excusate legem must be understood in the qualified sense that impotentia excuses when there is a necessary or invincible disability to perform the mandatory part of the law or to forbear the prohibitory. These maxims are akin to the maxim of Roman Law Nemo Tenetur ad Impossibilia (no one is bound to an impossibility) which is derived from common sense and natural equity and has been adopted and applied in law from the immemorial. (Vide Eagar v. Furnivall 17 Ch. D. 115).
11. The law is understood to disclaim all intention of compelling to impossibilities and the administration of laws must adopt that general exception in the consideration of all particular cases. Therefore, there are implied obligations not to force a person to do something which is rendered impossible by causes beyond his control. (Vide Hick v. Rodocanachi 1899 (2) QB 626).
12. Undoubtedly, deity is a minor in perpetuity, but being juristic person, has a judicial status with the power of suing or being sued. Under the provisions of Hindu Minority and Guardianship Act, 1956, immovable properties of a minor cannot be sold without the permission of the Court. Section 11 of the said Act puts an embargo on guardian not to alienate or deal with minor's properties.
13. There is a distinction between 'natural person' and 'juristic person'. A natural minor person may have a family but a juristic minor person cannot have a family. A deity, being a perpetual minor, is not expected to have personal cultivatory possession or get the land cultivated by labourers employed through his family members. As the law does not expect a person to do something which is impossible and a minor's right is to be protected by all concerned, the correctness of the judgment in Ram Lal (supra) is doubted if examined from this angle. More so, the proviso that in case of minor, the requirement of personal cultivation need not be necessary by personal supervision, has not been considered at all. Thus, the judgment remains per incurium.
14. Be that as it may, as referred to above, as the entries made by the Settlement Authorities in favour of petitioner's father had been without competence, the acceptance or of the reference cannot be held as suffering from any illegality. Facts of the case do not warrant any interference by this Court in its limited writ jurisdiction. The petition is devoid of any merit and accordingly dismissed.