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PETITIONER:

MST. KANCHANIYA AND ORS.

Vs.

RESPONDENT:

SHIV RAM AND ORS.

DATE OF JUDGMENT22/04/1992

BENCH:

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)868

ACT:

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.

HEADNOTE:

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 The maufi grant was revoked and the maufi land was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.

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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

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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

672

in 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-

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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

673

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. [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. [683

E]

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,

674

service 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

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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-

675

mitted 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]

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 Madhya

Pradesh dated October 6, 1980 in M.P. No. 12/73 arising out

of proceedings initiated by Shiv Ram, respondent no. 1

herein, against Malkhan under Section 248(1) of the Madhya

Pradesh Land Revenue Code, 1959 (hereinafter referred to as

'the Code'), for his ejectment from 19 Bighas 8 Biswas of

land in Village Juara, District Morena, Madhya Pradesh, on

the ground that he was in unauthorised possession of the

said land.

In Village Juara, District Morena, falling in the

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former Gwalior State, there is a temple of Shri Ram

Janakiji. 78 Bighas 17 Biswas of agricultural land had been

give, by way of maufi, for the temple by the ruler of the

former Gwalior State. Vasudev Rao, father of respondent

no.1, was the Pujari of the said temple and he was described

as the Maufidar in the revenue records. The said 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. By

order of the Commissioner (Maufi & Aukaf), Government of

Gwalior State, dated December 10, 1935, mutation was made of

the said agricultural land as Government property and its

management was handed over to the Pujari, Vasudev Rao for

the purpose of management through Parwana issued is his

favour. On the death of Vasudev Rao, the name of respondent

no.1 was mutated in the place of Vasudev Rao by order of the

Collector of Morena dated March 26, 1960. Out of the said

agricultural land, 19

676

Bighas 8 Biswas was given by Vasudev Rao to Malkhan for

cultivation and he continued to cultivate the same even

after the death of Vasudev Rao. Malkhan has died and the

appellants herein are his legal representatives.

In 1967, respondent no.1 moved an application under

section 248(1) of the Code before the Tehsildar, Juara

wherein it was alleged that Malkhan was in unauthorised

possession of the said 19 Bighas 8 Biswas of land and it was

prayed that he may be evicted from the same. On the said

petition, the Tehsildar initially passed an order for eject-

ment against Malkhan treating him as a trespasser. The said

order was set aside on appeal and the matter was remanded

for reconsideratoion. Thereafter, the Tehsildar recorded

evidence and passed an order rejecting the said application

of respondent no.1 and holding that land has been given by

respondent no.1 to Malkhan on lease for his life and that

the said lease was still effective and, therefore, Malkhan

was not in unauthorised possession of the land. The said

order of the Tehsildear was affirmed in appeal by the Sub-

divisional officer, Juara by his order dated April 7, 1971.

Secona appeal filed by respondent no.1 was allowed by the

Additional Commissioner, Gwalior Divisxion, Gwalior, by his

order dated February 22, 1972 whereby it was held 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 is not the landowner, he has no right to lease out

the land of the temple to any other person and the lease

given by him is meaningless and illegal and that Malkhan did

not get any benefit from his statement that father of re-

spondent no.1 had given the lease to him and that he had

also got a lease for eight years again after the Code came

into effect in the year 1959. It was held that the said

lease should be deemed to be illegal and ineffective since

the land in question is Aukaf property. Aggrieved by the

said order of Additional Commissioner, Malkhan filed a

revision before the Board of Revenue which was allowed by a

member of the Board of Revenue by order dated September 27,

1972. It was held that the State Government has given the

land for worship and service in the temple and that the

intention was that either the priest of the temple should

cultivate the land or get it cultivated by somebody else and

to carry on the expenses of the temple with its income . The

learned Member of the Board of Revenue also held that father

of respondent no.1 had allotted that land to Malkhan for his

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life time and that under the authority of the said patta,

Malkhan is in

677

possession and has made improvements on the land and the

respondent no.1 had regularly received Rs.100 annually

towards the land revenue and also passed over its receipt.

It was observed that respondent no.1 has never cultivated

the land and had no arrangement for cultivation and even if

the land was given in his possession, he would give the same

to somebody else. The Board of Revenue was of the view that

though Malkhan had no interest in the disputed land it would

not be just that he is dispossessed for the simple reason

that there is possibility of some more income to respondent

no.1. Against the said order of the Board of Revenue, re-

spondent no.1 filed a writ petition in the High Court which

was allowed by a learned Single Judge by judgment dated

October 6, 1980. Before the High Court it was claimed, on

behalf of the appellants, that since Malkhan had been in-

ducted as a sub-tenant by Vasudev Rao and by resopondent

no.1 after him, their possession was not unauthorised and as

such they were not liable to be evicted in proceedings under

s.248 of the Code. Another contention that was raised before

the High Court was that the land in dispute being Government

land on his own showing, respondent no.1 had no right to

maintain an application under s.248(1) of the Code. It was

lastly urged that the land in dispute endowed to temple of

Shri Ram Jankiji and as such deities of Shri Ram Jankiji are

Bhumiswamis of the suit land and therefore, ejectment pro-

ceedings could be started only before the Sub-divisional

Officer under Section 168(4) of the Code. The High Court

rejected all the three contentions. As regards the question

of maintainability of an application for ejectment under

s.248(1) of the Code, the High Court, relying on an earlier

Division Bench decision of the same Court, in Thakur Pancham

Singh v. Mahant Ramkishandas and Ors., AIR 1972 MP 14 held

that the application of the Pujari was maintainable under

s.248(1) of the Code and the learned Member, Revenue Board

was wrong in treating the possession of Malkhan as autho-

rised. The High Court further held 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 of

Shri Ram Jankiji nor the respondent no.1 could be regarded

as the Bhumiswamis thereof. The High Court, therefore,

allowed the writ petition filed by respondent no.1 and

restored the order passed by the Additional Commissioner

dated February 22, 1972 and ordered that the appellants be

ejected from the land in dispute in accordance with the

provisions of section 248 of the Code.

Shri Shiv Dayal, the learned counsel appearing for the

appellants, assailing the judgment of the High Court, has

urged that the High Court was

678

in error in holding that Malkhan was in unauthorised posses-

sion of the land in dispute and that the application filed

by respondent no.1 under section 248(1) of the Code was

maintainable. The submission of the learned counsel is that

it was competent for Vasudev Rao to grant a sub-lease in

favour of Malkhan in view of the relevant law applicable to

the land in dispute in the former State of Gwalior and that

after coming into force of the Code, Malkhan acquired Bhu-

miswami rights over the said land with effect from October

2, 1960. In this context, Shri Shiv Dayal has submitted that

the decision of the Division bench of the Madhya Pradesh

High Court in Thakur Pancham Singh v. Mahant Ramkishandas

and Ors. (supra) does not lay down the correct law. Shri

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Shiv Dayal has also submitted that respondent no.1, having

inducted Malkhan as tenant on the land in dispute, is

estopped from asserting that he had no right to grant tenan-

cy in favour of Malkhan and that possession of Malkhan was

unauthorised. It has been urged that since Malkhan had been

granted a patta by Vasudev Rao which was valid for life time

of Malkhan and respondent no.1 has admitted having received

rent from Malkhan after the death of Vasudev Rao, the Board

of Revenue had rightly held that possession of Malkhan 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 Con-

stitution.

We will first examine the question as to the nature of

right of Vasudev Rao in the land in dispute and whether he

was competent to grant a lease in favour of Malkhan in

respect of the said land. For that purpose it is necessary

to refer to the relevant provisions of the "Kewaid

Maufidaran" and "Qanoon Mal" of the former Gwalior State.

Maufi grants for Devasthan lands were governed by

section 13 of Kawaid Maufidaran. The said provision, as

translated in English, was as under:

"13. Where, on enquiry or at the time of mutation, a

Devasthani Maufi land is found to have been derived from

Nagis (Defective) Sanad, it shall be deleted from Maufi

category and shall be entrusted to the Aukaf Department for

Management of Devasthan, and entry of such land shall be

made in the Patwari Papers as follows:-

'Government property, under management of Aukaf

Department relating to Devasthan.'

679

The Maufidar shall be deemed to be holding

the land as Pujari or manager Devasthan and,

in lieu of service he shall have the right of

a Mourushi Kashtakar in such land for which a

rent free patta shall be granted to him by Aukaf

Department:

Provided that in the event of the services

being not rendered satisfactorily by the

Pujari or manager the Aukaf Department shall

have the authority to dispossess such Mourushi

Kashtakar and appoint another Pujari or manager in

his place and grant him patta for such land."

The expression 'Kashtakar Mourushi' was defined in clause

(29) of s.2 of the 'Qanoon Mal' which provision, as

translated in English, was as follows:

"Kashtakar Mourushi" :- "Kashtakar Mourushi is one

whose rights being heritable, the Malguzar cannot

evict him without order of the Court, nor can he

enhance the rent without his consent or without an

order of the court :

provided that in case a Pujari or manager who

has mourushi rights under section 13 of Kawaid

Maufidaran Juzne Arazi and Naqdi does not render

his services properly, the Aukaf Department shall

have the authority to dispossess him without an

order of the Court.

The following four categories of tenants were specified

in Section 249 of Qanoon Mal :

(i) Ex-proprietary tenant;

(ii) Mourushi or Dakhilkar, i.e., Occupancy

Tenant;

(iii) Gair Mourushi of Gair Dakhilkar, i.e., Non-

occupancy Tenant; and

(iv) Sub-Tenant.

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In Section 265 of Qanoon Mal, it was provided that

dakhilkar right is transferable by way of sale or mortgage

subject to the conditions laid down. One of the conditions

prescribed in the second proviso to s.265 was

680

that dakhilkar right acquired by a pujari or manager under

s.13 of the Qanoon Mal could not be subject to sale of

mortgage.

The aforesaid provisions in s.13 of the Kawaid

Maufidaran and s.265 of Qanoon Mal have been considered by

the Madhya Pradesh High Court in Pancham Singh's case

(supra) wherein also the Maufi grant in respect of a temple

had been resumed and a parwana had been granted to the

Pujari of the temple in accordance with Section 13 of

Maufidaran and the Pujari had granted a sub-lease and the

question was whether the Pujari was competent to grant the

sub-lease. In that context, the High Court has also referred

to s.110 of the Land Records Manual of the former Gwalior

State wherein it was provided that a Pujari should be

recorded as a Kashtakar Dakhilkar Bila Lagani, i.e., with no

right or interest, and to Circular No.4 of Samvat 1991 of

the former Gwalior State which required that :

"The entry of such land in the Jamabandi should be

made in the Patti of Milkiyat Sarkar under the

management of the Aukaf Department in the column

of 'owner' and the Pujari of Mujavir should be

entered in ziman 4 as Mourusi Bila Lagani."

In Pancham Singh's case (supra), the learned Judges

have also set out the terms of the Parwana (as contained in

the printed from) which is granted by the Aukaf Department

in accordance with s.13 of Kawaid Maufidaran. In the said

Parwana, it is mentioned that in accordance with s.13 of

Kawaid Maufidaran the land which was earlier entered in the

Maufi Register has been deleted from the said Register and

has been handed over to the Aukaf Department and the said

land is now being given by the Department to the grantee

'bila lagani' in lieu of service for the purpose of worship

of Devasthan and it shall be under the control of Aukaf

Department. The grantee shall keep the Devasthan in a proper

condition and shall make proper arrangement for worship from

the income of the land by cultivating the same personally or

getting it cultivated through somebody else. So long as the

grantee and his heirs property manage the Devasthan, till

then only they would be entitled to enjoy the land. If any

defect or mismanagement in the worship of devasthan on the

part of the grantee or his heirs is found proceedings for

removal will be initiated and another person would be ap-

pointed from amongst the heirs, if found fit from conducting

the worship or otherwise another proper person would be

appointed to manage the Devasthan and the land would be

delivered to

681

him. It was clearly mentioned in the Parwana that as a

result of cancellation of the maufi the grantee, as

Maufidar, does not have any right in the same and now this

land would be entered in the Register and other papers of

the Patwari as Government property under the control of

Aukaf Department for the management of the Devasthan.

Construing the terms of the Parwana in the light of

Section 13 of Kawaid Maufidaran, the High Court has held :

"The Parwana must be read in the context of

Section 13 of the Kawaid Maufidaran. The deed must

be read as a whole in order to ascertain the true

meaning of its several clauses. Strict legal

language having been used in the Parwana, it must

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receive its legal meaning. Under the terms of the

Parwana, the former Pujari has no other status than

that of a manager. He could get the lands cultivat-

ed either himself or through servants, but he had

no right to alienate the same in any manner. It

cast a duty upon him to keep the lands under culti-

vation so that the income derived therefrom could

be applied towards the Puja and the upkeep of the

temple. He was under the direct control of the

Aukaf Department. The Parwana expressly stated that

the grant shall be resumed for breach of any of

the conditions or upon the death of the former

Pujari. The maufi 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 maufi lands, but was

merely holding them on behalf of the Aukaf Depart-

ment for purpose of management."(p.16)

Referring to the definition of "Mourushi Kashtakar"

contained in clause (29) of s.2 of the Qanoon Mal, the High

Court had observed:

"On a plain reading, the definition excludes a

Pujari. The former Pujari was, therefore, not a

Kashtakar Mourushi of the maufi land, but was

merely holding them on behalf of Aukaf Department

for purposes of management."(p.16)

Rejecting the contention that every Mourushi Kashtakar

had the right to sub-let and that though a Pujari had no

right to transfer by mortgage or sale there was no restric-

tion on sub-letting, the High Court has laid down :

682

"It would be repugnant to the nature of the grant

itself to clothe such a person with a right to

transfer of any kind. The whole purpose of the

grant, which was for upkeep of the temple, would

be frustrated if the maufi lands were allowed to

be sub-let by the Pujari and new rights created in

favour of a stranger. 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 there-

in, or upon his death or removal. The death of the

former Pujari was, in the instant case, the termi-

nal point. That being so, the grant lapsed with his

death. As the grant created no interest in favour

of the former Pujari, whatever rights the peti-

tioners's father, Thakur Murlidhar Singh had also

lapsed and he became a rank trespasser." (p.17)

Shri Shiv Dayal has submitted that the learned judges of

the Division Bench of the High Court were in error in hold-

ing that a Pujari was not a Kashtakar Mourushi of the maufi

land and that the said finding is contrary to the language

of s.13 of Kawaid Maufidaran wherein it is clearly stated

that the Pujari would have the rights of a Kashtakar Mou-

rushi. According to Shri Shiv Dayal the only limitation on

the rights of the Pujari as a Kashtakar Mourushi was that

contained in s.265 of the Qanoon Mal whereby he was preclud-

ed from selling or mortgaging the Maufi 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 s.13 of Kawaid Maufidaran, the right of a Kashtakar

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Mourushi have been conferred on the Pujari and under s.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 s.13 of Kawaid Maufidaran the right of a Kashta-

kar 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 would be issued in his

favour. This is also borne out by definition of the expres-

sion 'Kashtakar Mourushi' in s.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

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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

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 ordi-

nary 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 Pancham Singh's case (supra) 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 patta granted in favour of Malkhan by Vasudev

Rao, father of respondent no.1, was not valid and did not

confer any right or interest on Malkhan in the land covered

by the said patta.

Once it is held that Vasudev Rao was not competent to

grant a lease in respect of the land in dispute and the

patta granted by him in favour of Malkhan was invalid and no

rights were conferred on Malkhan in the land as a result of

the said patta, the claim of the appellants that they have

acquired Bhumiswami right on the land in dispute cannot be

sustained. The said claim is based on the provisions of

ss.185, 189 and 190 of the code.

Under s.185(1), every person, belonging to any of the

categories specified thereunder, shall be called an

occupancy tenant and shall have all the rights and be

subject to all the liabilities conferred or imposed upon an

occupancy tenant by or under the Code. Under s.190, Bhumis-

wami rights are conferred on an occupancy tenant in cases

where the Bhumiswami, whose land is held by an occupancy

tenant, fails to make an application under s.189(1) within

the period laid down therein. The submission of Shri Shiv

Dayal is that Malkhan, being in occupation of the land in

dispute as a sub-tenant, became an occupancy tenant under

s.185(1), and since the Bhumiswami of the land in dispute

did not make an application under s.189(1), Malkhan acquired

Bhumiswami rights over the same under s.190 of the Code.

This contention proceeds on th assumption that Malkhan was a

sub-tenant of the land in dispute on the date of coming into

force of

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the code. But since we have found that no rights were

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created in favour of Malkhan under the patta granted by

Vasudev Rao. Malkhan cannot claim to be a sub-tenant of the

land in dispute on the date of the commencement of the Code

and, therefore, the submission of Shri Shiv Dayal that

Malkhan had acquired Bhumiswami rights over the land in

dispute cannot be accepted.

The only question which remains to be considered is

whether the application filed by respondent no.1 under

s.248(1) of the Code was maintainable. 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 occu-

pied land, abadi, service land or any land which has been

set part for any special purpose under s.237. The expression

'unoccupied land' is defined in s.2(z-3) of the Code as

under :

" `unoccupied land, means the land in a village

other than the Abadi or service land or the land

held by a Bhumiswami, a tenant or a Government

lessee;"

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 (i) of sub-s.(1) of s.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 no.1 in view of the fact that

Vasudev Rao, father of respondent no.1, had granted a patta

permitting Malkhan to cultivate the land during his

(Malkhan's) life time and after the death of Vasudev Rao,

respondent no.1 had also granted a patta permitting Malkhan

to continue in cultivation of the land in dispute and had

been receiving Rs.100 annually as rent for Malkhan. There is

dispute between the parties with regard to the terms of the

patta granted by respondent no.1. According to the appel-

lants, under the said patta, Malkhan was entitled to contin-

ue for his life time whereas according to respondent no.1,

the patta was granted for a limited period which had ex-

pired. It has been urged by learned counsel for the appel-

lants that in view of the patta whereby Malkhan was permit-

ted to cultivate the land in dispute for his life, it

685

cannot be said that possession of Malkhan was unauthorised.

In view of the death of Malkhan during the pendency of the

writ petition in the High Court, the question whether re-

spondent 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 in dispute during his life time, 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 no.1.

In Lachmeshwar Prasad Shukul and Ors. v. Keshwar Lal

Chaudhuri and Ors., (1940) FCR 84, Varadachariar, J. has

observed :

"It is also on the theory of an appeal being in

the nature of a re-hearing that the courts in this

country have in numerous cases recognized that in

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moulding the relief to be granted in a case on

appeal, the court of appeal is entitled to take

into account even facts and events which have come

into existence after the decree appealed against."

(p.103)

In his concurring judgment, Gwyer, C.J. has referred to

the following observations of Hughes C.J. in Patterson v.

State of Alabama, [1934] 294 US 600, at p.607 :

"we have frequently held that in the exercise of

our appellate jurisdiction we have power not only

to correct error in the judgment under review but

to make such disposition of the case as justice

requires. And in determining what justice does

require, the Court is bound to consider any

change, either in fact or in law, which has

supervened since the judgment was entered". (p.87)

In Qudrat Ullah v. Municipal Board, Bareilly, [1974] 2

SCR 539, this Court has held that it is permissible for the

court to take note of the extinguishment of the statutory

tenancy while considering the appeal and grant relief to the

appellant accordingly. We can, therefore, take note of the

fact the Malkhan has 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

686

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.

On the aforesaid view of the matter, the appellants

must fail and the appeal has to be dismissed. But before we

do so, we consider it necessary to advert to an aspect which

cannot be ignored. We have found that the Pujari or the

manager of the Devasthan holds the lands given to him under

the Parwana issued under s.13 of the Kawaid Mufidaran 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 in 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 initiat-

ed by the Pujari or manager only after obtaining the approv-

al of the Aukaf Department. 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, we consider it appropriate to direct that a

senior official in the Aukaf Department of the Government of

Madhya Pradesh should examine whether the appellants can be

permitted to cultivate the land in dispute on terms as

suitably revised and till the matter is so considered, the

appellants are not dispossessed from the land in dispute.

The appeal is, therefore, dismissed. It is, however,

directed that a senior official in the Aukaf Department of

Government of Madhya Pradesh shall consider whether the

appellants can be permitted to cultivate the land in dispute

on terms which may be suitably revised. In case the said

official is of the view that the appellants can be so per-

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mitted, a suitable direction in that regard may be given by

the Aukaf Department directing respondent no.1 to permit the

appellants to cultivate the land on the revised terms. The

appellants shall not be ejected from the land in dispute

till the matter is so considered. The parties are left to

bear their own costs.

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