Bhanwar Singh vs Balaji Swami Temple of Deori

Bhutt, J.—This is an appeal by the defendants against the decree for possession.

The fields in suit formed sir of the plaintiff-respondent, Shri Balaji Swami Temple which was muafidar Gaontia of the village. Although the word ''temple'' is used in the designation, the reference is clearly to the idol. The suit was brought on behalf of the deity by Mahant Narsingdas as Sarbarakar. Defendants appellants are the sons of Laharsingh who died on 8th May 194g. He held the fields rent-free in lieu of working as Thakur (Mukaddam). The patio was granted to him in the settlement of 1944 ensuring till 1964: See Ex. D-1. On his death, the defendants took possession of the fields. The suit was accordingly filed for their ejectment.

The trial Court dismissed the suit on the ground that the defendants, as heirs of the Mukaddam could not be said to be unlawfully holding the fields on his death. This view was reversed in appeal and the plaintiff''s claim was allowed.

The suit is governed by Qanun Mal of Ranker State within whose area the fields were situate. Section 206 thereof defines the terms ''Chakrandeh'' which inter alia included a Thakur or Mukaddam of the village. These persons held the land in lieu of rendering service and were classed as Kashtkar Khidmatideh, vide section 155 read with section 177. Section 221 empowered the Gaontia to enter on the Khidmatideh if the holder thereof transferred it or committed waste. u/s 222, the holder was liable to be ejected from the land on his dismissal. Section 59 (a) provided that the sir land held by a Thakur (Mukaddam) would be part of the sir of the village and belong to the Gaontia. The land classed as Khidmatideh was not liable to be sold by the person holding it (section 178) and he was liable to be ejected therefrom on his dismissal (section 179). It thus appears that sir land held by a Thakur or Mukaddam in lieu of rendering service belonged to the Gaontia and was liable to be held by the Mukaddam only during the tenure of his service.

This is not a case where the Mukaddam was dismissed; it is one of devolution of Khidmatideh on the death of the bolder. Section 263 of the Qanun Mal gave power to the heir of a Mukaddam to make an application for his appointment in place of the deceased within a year of his death. The section further provided that he lost his right of appointment if he did not make the necessary application within the prescribed limit. It is no doubt true that clause (a) of the section gave power to the authorities to excuse the delay in making the application if it was due to a reasonable cause. No such application for appointment, however, was made in the instant case by the defendants. There is no question of the exclusion of the power of the civil Court to entertain the suit as it does not involve the question of appointment of a Mukaddam u/s 25 (g) of the Qanun Mal. The defendants had, therefore, no right to hold the land as against the plaintiff-Gaontia after the demise of their father.

The question, therefore, is whether the suit is affected by the M.P. Abolition of Proprietary Rights (Estates, Mahals, Alienated Lands) Act, 1950, or it falls within the dictum of Rahmatulla Khan vs. Mahabir Singh ILR 1955 Nag. 983. It cannot be gainsaid that the plaintiff was prevented from cultivating the fields in the year 1949-50 or on the date of vesting due to the wrongful act of the defendants. But for this illegal obstruction, the plaintiff would have been in cultivating possession of the fields at that time. The case, therefore, falls within the dictum of Rahmatulla Khan vs. Mahabir Singh (Supra) and the fields would form the home farm of the plaintiff vide section 2 (g) (2) of the Act, if it could retain them on the termination of its proprietary tenure.

The plaintiff held the village as muafidar Gaontia. The grant falls in class (3) read with clause (a) of section 133 of the Qanun Mal, and would ensure for life-time. The plaintiff, as a deity, however, has perpetual existence and is, therefore, entitled to retain the fields for all time. In these circumstances, there can be no question of the termination of its proprietary tenure, and as it would always retain the fields, they would form its home-farm within the meaning of section 2 (g) (2) and would be held by it as malik mukbuza u/s 53 (1) of the Abolition of Proprietary Rights Act. In these circumstances, the plaintiff''s right of suit is Dot affected by the said enactment.

It was, however, urged that Mahant Narsingdas was not properly appointed sarbarakar of the plaintiff, and, therefore, could not maintain the suit on its behalf. This point does not appear to have been pressed in the first appeal. However, all that was pleaded against the appointment was that he was over 50 years of age at that time. Reference was made to the "local tenancy law" in this connection. It, however, appears that what was referred to was section 223 of the Qanun Mal. This section deals with the appointment of sarbarakar for a gaontia. It is no doubt true that one of the qualifications for appointment was that the person concerned should not be above 50 years of age. This condition, however, cannot be said to be mandatory. It cannot, therefore, be said that his appointment as sarbarakar was invalid.

The result is that the appeal fails and is dismissed with costs.