State of Rajasthan Vs. Tara and ors. - Court Judgment

SooperKanoon Citationsooperkanoon.com/772700
SubjectProperty
CourtRajasthan High Court
Decided OnFeb-07-2001
Case Number S.B. Civil Writ Petition No. 4232 of 1999
Judge B.S. Chauhan, J.
Reported in2007(3)WLN491
AppellantState of Rajasthan
RespondentTara and ors.
Disposition Petition allowed
Cases ReferredKanchan Bai v. The Board of Revenue and Ors.
Excerpt:
rajasthan land revenue act, 1956 - section 82--reference--land belonging to deity--name of respondents recorded as cultivators in the record--reference rejected by board--deity is a juristic person & perpetual minor and not expected to have personal cultivatory possession--no person can claim khatedari rights in land of deity even having cultivatory possession--held, board of revenue has committed error in rejecting the reference.;petition allowed - - ' however the said document clearly shows that the respondent no.b.s. chauhan, j.1. the instant writ petition has been filed challenging the impugned judgment and orders of the learned board of revenue dated 27.12.1997 (annx. 4) and 2.7.1998 (annx. 6) by which the reference made by the authority under section 82 of the rajasthan land revenue act has been rejected and its review application has also been dismissed.2. the facts and circumstances giving rise to this case are that the land encompass in khasra no. 702 measuring 56.9 bighas, khasra no. 708 measuring 83 bighas and khasra no. 705 measuring 40.14 bighas situate in revenue estate shiy distt. banner was in the name of doli (math shri garibnath ji maharaj), respondent no. 1 was recorded as a cultivator of the said and his name also had been mentioned in the earlier revenue record. the land in khasra nos. 702 and 705 came to be recorded in the name of respondent no. 1 antl the land in khasra no. 708 in the name of respondent nq.2. respondents no. 2 and 3 are the transferees of the land from respondent no. 1 by way of gift deed etc. the matter was referred to the learned board of revenue earlier making reference no. 15/88. however the matter was remanded vide order dated 2.6.1989 to the additional collector. banner to examine as to whether the cultivator was having any heritable and transferable right in the land or not. the matter was re-examined and it was held that the land had been recorded in the name of respondents but without any authority of law and those persons who are not having any heritable or transferable are not having any heritable or transferable rights at the time of commencement of the rajasthan tenancy act, 1955 (hereinafter referred to as the act 1955) in force, vide order dated 27.4.1992 (annx. 2). the matter was again referred to the learned board of revenue and the reference was decided vide order dated 10.5.1995 exparte as the respondents did not enter appearance and it was held that the land belonged to the deity and nobody could have any transferable rights in the said land. the mutations etc. were directed to be set aside. the matter was reopened on the application of the respondents and the reference was rejected vide judgment and order dated 26.12.1997 (annx. 4). being aggrieved and dissatisfied the present petitioner filed a review application which has also been rejected vide judgment and order dated 2.7.1998 (annx. 6); hence this petition.3. shri parihar, learned counsel for the respondents has drawn the attention of the court to annex. 1 (khatoni bandobast) and submitted that the respondents etc. had been shown as khatedar.' however the said document clearly shows that the respondent no. 1 had been recorded as khatedar only for a period of four years and not for ever. shri parihar could not show any document on record which may show that respondent no. 1 had ever been recorded khatedar except for the said period of four years. moreso, the said document relates to samvat 2014 to 2023 (corresponding years 1957 to 1966. the document does not support the contention that the respondents had been recorded khatedar for a long period. even during this period of 9 years, the respondents has been recorded khatedar only for four years as has been shown in column no.4 of the said document. thus, it does not show any inheritable or transferable right or perpetuity therein. the judgment and orders impugned of the board of revenue and based on the finding that if a person was recorded as a khatedar how he has been presumed that land has been wrongly recorded in khatedari of respondent no. 1 the finding recorded by the learned board of revenue cannot be sustained in the eyes of law and the learned board has committed a grave error and decided the case without considering the proper legal aspect involved in the case.4. in temple thakurji v. state of rajasthan and ors. and a division bench of this court in mangi lal v. state of rajasthan 1997 (3) rlw 2017, this court 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 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. a division bench of this court, in ram lal and anr. v. board of revenue and ors. 1990 (1) rlr 161, 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 (i) '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 khatedari rights over 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 of one's own.(i) by one's own labour; or(ii) by the labour of any member of one's family; or(ill) by servants on 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 recognised by the government is below the age of twenty-five years, land shall be deemed to be cultivated personally evening 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 been deemed to be land cultivated personally and ultimately it may tentamount 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.8. in budha v. ami lal (1991) 2 scc 41, the hon'ble supreme court, while interpreting the provisions of the rajasthan jamidari & biswedari abolition act, 1959, held (that khudkasht land means that the land was in actual possession and cultivation of the jamidar 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 .9. 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 'tmpossibilium 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 o/m.p. and ors. (2000) 4 scc 342. these maxims or as the same are also expressed as importentia excusate legem must be understood in the qualified sense that importentia 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 time immerorial. (vide eagar v. furnivall 17 ch. d. 115).10. 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).11. 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. sec, 11 of the said act puts an embargo on guardian not to alienate or deal with minor's properties.12. 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 of 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 judgments in bal kishan (supra) and ram lal (supra) remain per incurium.13. this court in iedan v. state o/rajasthan and ors. s.b.c.w.p. no. 1325/2000 11 1325/2000 11 .1.2000, has taken the view that under no circumstance, the land of the deity can be subject matter of transfer, nor any person, even having cultivatory possession, can claim khatedari rights over it. the said judgment was challenged by the petitioner therein before the division bench in d.b. civil special appeal no. 767/2000 and the same had been up-held dismissing the appeal vide order dated 12.9.2000.14. subsequent thereto an identical case in kehar singh v. board of revenue and ors., s.b.c. writ pet. no. 2499/2000 14.11.2000 was also disposed of in terms of the judgment in iedan (supra). against the said judgment d.b. civil special appeal no. 1208 of 2000 has also been dismissed by the division bench on 20.12.2000.15. in mukna ram and ors. v. board of revenue and ors. s.b.c. writ pet. no. 33/1996 decided by this court on 26th september, 2000 this court (hon'ble mr. justice v.g. palshikar) dealt with an identical case and after considering the judgment of the hon'ble supreme court in deepa v. state of rajasthan and ors. : (1996)1scc612 wherein it has been held that once tenancy is accepted in proceedings under the act 1955, the question of tenancy cannot be reagitated under section 82 of the rajasthan land revenue act, the learned judge did not follow the said judgment in deepa (supra) observing that the issue has not been agitated before the hon'ble supreme court as to whether khatedari rights could be acquired in relation to the land belonging to the deity another judgment in bal kishan v. board of revenue 2000 (1) rlr 69 was considered wherein a similar proposition as held in deepa (supra) was laid down but the said judgment was also distinguished on the ground that the land therein did not belong to deity. judgment in kanchan bai v. the board of revenue and ors. 2000 (1) wlc 74 was also considered and distinguished as the issue in relation to rights of the land belonging to the deity was not involved therein. this court disposed of the petition after considering the issue of delay also. the court observed as under:however, exercise of such jurisdiction for protection of properties belonging to a deity can always be called a proper exception.... the social interest in the present case is obviously with the deity and consequently, it is my duty to protect the interest of deity. in these circumstances, the question of delay cannot prevent this court or the board of revenue to do justice in the matter of idol or deity.16. thus, in view of the above, as the case is fully covered by the division bench judgment of this court in iedan (supra), the petition succeeds and is allowed. the judgment of the board of revenue dated 26.12.1997 (annx. 4) and 2.7.1998 (annx. 6) are hereby quashed and the reference made is allowed. no order as to costs.
Judgment:

B.S. Chauhan, J.

1. The instant writ petition has been filed challenging the impugned judgment and orders of the learned Board of Revenue dated 27.12.1997 (Annx. 4) and 2.7.1998 (Annx. 6) by which the reference made by the Authority Under Section 82 of the Rajasthan Land Revenue Act has been rejected and its review application has also been dismissed.

2. The facts and circumstances giving rise to this case are that the land encompass in Khasra No. 702 measuring 56.9 Bighas, Khasra No. 708 measuring 83 Bighas and Khasra No. 705 measuring 40.14 Bighas situate in revenue estate Shiy Distt. Banner was in the name of Doli (Math Shri Garibnath Ji Maharaj), Respondent No. 1 was recorded as a cultivator of the said and his name also had been mentioned in the earlier revenue record. The land in Khasra Nos. 702 and 705 came to be recorded in the name of respondent No. 1 antl the land in Khasra No. 708 in the name of respondent Nq.2. Respondents No. 2 and 3 are the transferees of the land from respondent No. 1 by way of gift deed etc. The matter was referred to the learned Board of Revenue earlier making reference No. 15/88. However the matter was remanded vide order dated 2.6.1989 to the Additional Collector. Banner to examine as to whether the cultivator was having any heritable and transferable right in the land or not. The matter was re-examined and it was held that the land had been recorded in the name of respondents but without any authority of law and those persons who are not having any heritable or transferable are not having any heritable or transferable rights at the time of commencement of the Rajasthan Tenancy Act, 1955 (hereinafter referred to as the Act 1955) in force, vide order dated 27.4.1992 (Annx. 2). The matter was again referred to the learned Board of Revenue and the reference was decided vide order dated 10.5.1995 exparte as the respondents did not enter appearance and it was held that the land belonged to the deity and nobody could have any transferable rights in the said land. The mutations etc. were directed to be set aside. The matter was reopened on the application of the respondents and the reference was rejected vide judgment and order dated 26.12.1997 (Annx. 4). Being aggrieved and dissatisfied the present petitioner filed a review application which has also been rejected vide judgment and order dated 2.7.1998 (Annx. 6); hence this petition.

3. Shri Parihar, learned Counsel for the respondents has drawn the attention of the Court to Annex. 1 (Khatoni Bandobast) and submitted that the respondents etc. had been shown as Khatedar.' However the said document clearly shows that the respondent No. 1 had been recorded as Khatedar only for a period of four years and not for ever. Shri Parihar could not show any document on record which may show that respondent No. 1 had ever been recorded Khatedar except for the said period of four years. Moreso, the said document relates to Samvat 2014 to 2023 (Corresponding years 1957 to 1966. The document does not support the contention that the respondents had been recorded Khatedar for a long period. Even during this period of 9 years, the respondents has been recorded Khatedar only for four years as has been shown in Column No.4 of the said document. Thus, it does not show any inheritable or transferable right or perpetuity therein. The judgment and orders impugned of the Board of Revenue and based on the finding that if a person was recorded as a Khatedar how he has been presumed that land has been wrongly recorded in Khatedari of respondent No. 1 The finding recorded by the learned Board of Revenue cannot be sustained in the eyes of law and the learned Board has committed a grave error and decided the case without considering the proper legal aspect involved in the case.

4. In Temple Thakurji v. State of Rajasthan and Ors. and a Division Bench of this Court in Mangi Lal v. State of Rajasthan 1997 (3) RLW 2017, this Court 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 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. A Division Bench of this Court, in Ram Lal and Anr. v. Board of Revenue and Ors. 1990 (1) RLR 161, 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 (i) '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 Khatedari rights over 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 of one's own.

(i) by one's own labour; or

(ii) by the labour of any member of one's family; or

(ill) by servants on 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 recognised by the Government is below the age of twenty-five years, land shall be deemed to be cultivated personally evening 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 been deemed to be land cultivated personally and ultimately it may tentamount 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.

8. In Budha v. Ami Lal (1991) 2 SCC 41, the Hon'ble Supreme Court, while interpreting the provisions of the Rajasthan Jamidari & Biswedari Abolition Act, 1959, held (that Khudkasht land means that the land was in actual possession and cultivation of the Jamidar 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 .

9. 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 'tmpossibilium 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 o/M.P. and Ors. (2000) 4 SCC 342. These maxims or as the same are also expressed as importentia excusate legem must be understood in the qualified sense that importentia 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 time immerorial. (Vide Eagar v. Furnivall 17 Ch. D. 115).

10. 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).

11. 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. Sec, 11 of the said Act puts an embargo on guardian not to alienate or deal with minor's properties.

12. 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 of 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 judgments in Bal Kishan (supra) and Ram Lal (supra) remain per incurium.

13. This Court in Iedan v. State o/Rajasthan and Ors. S.B.C.W.P. No. 1325/2000 11 1325/2000 11 .1.2000, has taken the view that under no circumstance, the land of the deity can be subject matter of transfer, nor any person, even having cultivatory possession, can claim Khatedari rights over it. The said judgment was challenged by the petitioner therein before the Division Bench in D.B. Civil Special Appeal No. 767/2000 and the same had been up-held dismissing the appeal vide order dated 12.9.2000.

14. Subsequent thereto an identical case in Kehar Singh v. Board of Revenue and Ors., S.B.C. Writ Pet. No. 2499/2000 14.11.2000 was also disposed of in terms of the judgment in Iedan (supra). Against the said judgment D.B. Civil Special Appeal No. 1208 of 2000 has also been dismissed by the Division Bench on 20.12.2000.

15. In Mukna Ram and Ors. v. Board of Revenue and Ors. S.B.C. Writ Pet. No. 33/1996 decided by this Court on 26th September, 2000 this Court (Hon'ble Mr. Justice V.G. Palshikar) dealt with an identical case and after considering the judgment of the Hon'ble Supreme Court in Deepa v. State of Rajasthan and Ors. : (1996)1SCC612 wherein it has been held that once tenancy is accepted in proceedings under the Act 1955, the question of tenancy cannot be reagitated Under Section 82 of the Rajasthan Land Revenue Act, the learned Judge did not follow the said judgment in Deepa (supra) observing that the issue has not been agitated before the Hon'ble Supreme Court as to whether Khatedari rights could be acquired in relation to the land belonging to the deity Another judgment in Bal Kishan v. Board of Revenue 2000 (1) RLR 69 was considered wherein a similar proposition as held in Deepa (supra) was Laid down but the said judgment was also distinguished on the ground that the land therein did not belong to deity. Judgment in Kanchan Bai v. The Board of Revenue and Ors. 2000 (1) WLC 74 was also considered and distinguished as the issue in relation to rights of the land belonging to the deity was not involved therein. This Court disposed of the petition after considering the issue of delay also. The Court observed as under:

However, exercise of such jurisdiction for protection of properties belonging to a deity can always be called a proper exception.... The social interest in the present case is obviously with the deity and consequently, it is my duty to protect the interest of deity. In these circumstances, the question of delay cannot prevent this Court or the Board of Revenue to do justice in the matter of idol or deity.

16. Thus, in view of the above, as the case is fully covered by the Division Bench judgment of this Court in Iedan (supra), the petition succeeds and is allowed. The judgment of the Board of Revenue dated 26.12.1997 (Annx. 4) and 2.7.1998 (Annx. 6) are hereby quashed and the reference made is allowed. No order as to costs.