Holding

The Pujari, as a manager of Aukaf property, had no authority to lease the land; thus the lease to Malkhan was invalid, no Bhumiswami rights accrued, and the eviction petition under Section 248(1) was maintainable.

Summary

The Supreme Court examined a dispute over 19 Bighas 8 Biswas of agricultural land originally granted by maufi to a temple in former Gwalior State. After the maufi grant was revoked, the land became Aukaf property and was managed by the temple's Pujari, who was only a manager under a Parwana issued pursuant to Section 13 of the Kawaid Maufidaran. The Pujari had given a life‑lease to Malkhan, who cultivated the land; after Malkhan's death, the respondent sought eviction under Section 248(1) of the Madhya Pradesh Land Revenue Code. Lower tribunals gave conflicting rulings, and the High Court ordered eviction, holding the lease invalid. The Supreme Court held that the Pujari had no authority to lease the land, the lease was void, no Bhumiswami rights arose, and the eviction petition was maintainable. Consequently, the appellants' possession became unauthorized after Malkhan's death, and the appeal was dismissed, with a direction that the Aukaf Department consider any revised cultivation terms.

Issues considered

The legal status and powers of the Pujari/manager of Aukaf land under the Kawaid Maufidaran and Qanoon Mal.
Whether the Pujari could validly grant a lease or sub‑lease of the temple land.
Whether the lessee Malkhan acquired occupancy tenant or Bhumiswami rights under the Madhya Pradesh Land Revenue Code, 1959.
Whether an application for eviction under Section 248(1) of the Code was maintainable.
Whether the land in question is ‘unoccupied land’ or ‘land set apart for a special purpose’ under the Code.
Effect of the lessee’s death on the legality of the appellants’ possession.

Legislation cited

Constitution of Indias. Article 136, s. Article 226
Kawaid Maufidaran of Gwalior States. 13
Land Records Manual of the former Gwalior States. 110
Madhya Pradesh Land Revenue Code, 1959s. 168(4), s. 185, s. 189, s. 190, s. 2, s. 237, s. 248
Qanoon Mal (Gwalior State)s. 2(29), s. 249, s. 265

Subjects

Maufi landAukaf propertyPujari as managerLease validityEviction under Section 248(1)Bhumiswami rightsSpecial purpose landParwanaMadhya Pradesh Land Revenue Code

Judgment

A MST. KANCHANIYA AND ORS.
v.
SHIV RAM AND ORS.

APRIL 22, 1992

B [M. FATHIMA BEEVI ANDS. C. AGRAWAL, JJ.]

Madhya Pradesh Land Revenue CiJde, 1959-Sections 2,237, 248( lj
read with Section 13, Kawaid Maufidaran of Gwalior State-Maufi
land-Control of Aukaf Deptt. of Government-Mutation of land in the name
C of Maufidar (Pujari of the temple}-Whether Pujari can lease out-Whether
lessee acquiredBhumiswami rights on the commencement of the Code-l'os-
session of land by the lessee whether authorised-Ejection of lessee-Validity
of

Constitution of India, 1950-Anicle 226-Writ petition unde~enden
D cy-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 detennine whether pennission to be given for cultivation.

E 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
F Aukaf as Government property vide Circular dated August 13, 1934 of the
Government of Gwalior State.

Mutation was made of the agricultural land as Government property
and its management was handed over to the Pujari, the father of respon-
G dent No.I. On the death of the Pujari, his son, the respondent No.l'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.I to one Malkhan, the predecessor of the appel-
lants for cultivation and he continued to cultivate the same even after the
H death of respondent No.l's father.
670 ~-
MST. KANCHANIYA . v. SHIV RAM 671

~ In 1967, responde~t no.l moved an application under section 248(1) A
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 possession of the land measuring 19 Bighas 8 Biswas.

The Tehsildar initially passed an order for ejectment against
B
y 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 respondent no.l, held that land was given by respondent
I
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.
c
'
)..... The Tehsildar's order was affirmed in appeal by the Sub-divisional
Officer.

Second appeal filed by respondent No.l was allowed by the Addition- n
al 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
E
person and the lease given by him was meaningless and illegal and inef-
-"(-' fective 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 servke in the temple cultivating the land by the priest of the F
temple or getting it cultivated by somebody else. It was also held that the
father of respondent No.I 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 repondent No.l was
regularly receiving Rs.100 annually towards the land revenue and also
passed over its receipt. G

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 main-
tainable under s.248(1) of the Code; that the Board of Revenue was wrong H
672 SUPREME COURT REPORTS [1992] 2 S.C.R.

A in treating the possession of Malkhan as authorised; that section 168(4)
of the Code was not applicable to the present case bec.:ause 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
B 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
c 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.l(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
D after coming into force of the Code, lessee (Malkhan) acquired Bhumis-
wami 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
77iakur Panchamsingh v. Mahant Ram, Kishan Das and ors., AIR 1972 MP
14 did not lay down the correct law; that respondent No.I, having inducted
E 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
possession of lessee was unauthorised; that since Malkhan had been
granted a patta by the father of respondent No.l(lessor), which was valid
for life time of Malkhan ~nd resi)ondent no.1 addmitted having received
rent from lessee afte.f the death of the lessor, the Board of Revenue rightly
F held that posst:ssion:of the l~ssee 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 Constitu-
tion. ~

G 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 .
H resumed for breach of any of the conditions or upon the death of the former
MST. KANCHANIYA. v. SHIV-RAM 673

Pujari. In other words, the rights of the Pujari do not stand on the same A
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 B
functions under the overall control and supervision of the Aukaf Depart-
ment because in the event of his failure to properly manage the affairs, he
can be removed and the Parwana issued in his fa~our 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 c
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 menas that the
proceedings for such ejectment under s.248(1) of the Code should be
initiate(i by the Pujari or manager only after obtaining the approval of the
Aukaf Department. [686 8-DJ D

1.03. A Pujari had no other status than that of the manager function-
ing 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. [683 CJ E

1.04. Once it is held that Pujari (less.or), 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 r:esult of the patta,
the claim of the appeallants that they have acquired Bhumiswami right on F
the land in dispute cannot be sustained. [683 EJ

1.05. Since no rights were created in favour of Malkhan under the
patta granted by the lessor, Mallman (lessee) 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 that of Malkhan had acquired Bhumiswami G
rights over the land in dispute cannot be accepted. [684 A-BJ

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, H
674 SUPREME COURT REPORTS [1992] 2 S.C.R.

A service land or any land which has been set apart for any special purpose
under s.237. [684 CJ

1.07. 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 unoc-
cupied land. Sinct: it was set apart for a public purpose, viz., for the upkeep
B of temple, it can be said to be land set apart for a special purp~se 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.
c 2.01. In view of the death of Mal khan during the pendency of the writ
petition in the High Court the question whether respondent No.I has
--
granted a patta permitting Malkhan to cultivate the land in dispute during
his life time, does not survive because even ifit is held that the patta granted
in favour of Malkhan by respondent no.I permitted Malkhan to cultivate
D 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.I. [685 A-CJ

2.02. Malkhan had died during the pendency of the writ petition in
E
the High Court and, as a result, the possession of the appellants has
become unauthorised, since then. Th~ 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]
F
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.
(j
3. In the instant case, the Board of Revenue, has stated that respon-
dent no.I 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 Aukaf Department of the Government
H of Madhya Pradesh should examine whether the appellants can be per-
MST. KANCHANIYA. v. SHIV RAM [AGRAWAL, J.] 675

~ mitted to cultivate the land in dispute on terms as suitably revised and till A
the matter is so considered, the appellants are no dispossessed from the
land in dispute. (686 D-F]

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 4010 of
1983.
·--/ B
' 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.I<. Bagga, Sheeraj Bagga, Mrs. Surestha Bagga, V.K. Sapre and C
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 D
in M.P. No. 12173 arising out of proceedings initiated by Shiv Ram, respon-
dent 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
E
-y possession of the said land.

In Village Juara, District Morena, falling in the former Gwalior State,
there is a temple of Shri Ram Janakiji. 78 Bighas 17 Biswas of agricultural
land had been given, by way of maufi, for the temple by the ruler of the
former Gwalior State. Vasudev Rao, father of respondent no.1, was the F
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 & Aukat), Government of Gwalior
State, dated December 10, 1935, mutation was made of the said agricultural G
land as Government property and its management was handed over to the
Pujari, Vasudev Rao for the purpose of management through Parwana
issused 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 H
676 SUPREME COURT REPORTS [1992) 2 S.C.R.

A 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)
B 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 ejectment against
Malkhan treating him as a trespasser. The said order was set aside on
appeal and the matter was remanded for reconsideration. Thereafter, the
c Tehsildar recorded evidence and passed an order rejecting the said ap-
plication 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 posses-
sion of the larid. The said order of the Tehsildar was affirmed in appeal by
D the Sub-divisional Officer, Juara by his order dated April 7, 1971. Second
appeal filed by respondent no.1 was allowed by the Additional Commis-
sioner, Gwalior Division, 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
E change the ownership of the temple and since the priest is not the land-
owner, 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 respon-
dent no.1 had given the lease to him and that he had also got a lease for
F 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 pr,)perty. 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
G had given the land for worship and service in the temple and that the
intention was that either the priest of the temJJle 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
H his life time and that under the authority of the said patta, Malkhan is in 1
MST. KANCHANIYA. v. SHIV RAM [AGRAWAL, J.] 677

possession and has made improvements on the land and the respondent A
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 an'.l 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
B
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 respon-
dent no.1. Against the said order of the Board of Revenue, respondent 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 Lehalf of the appellants, that since Malkhan had been c
inducted as a sub-tenant by Vasudev Rao and by respondent 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 ~as raised before the High Court was that the land in dispute bein~
Government land on his own showing, respondent no.1 had no right to D
maintain an application under s.248(1) of the Code. It was lastly urged that
the land in dispute was endowed to temple of Shri Ram Jankiji and as such
deities.of Shri Ram Jankiji are Bhumiswamis of the suit land and therefore,
ejectment proceedings 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 applica- E
tion for ejectment under s.248(1) of the Code, the High Court, relying on
an earlier Division Bench decision of the same Court in 17iakur 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
F
of Malkhan as authorised. 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 G
22, 1972 and ordered that the appellants be ejected from the land m

,
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· H
678 SUPREME COURT REPORTS [1992] 2 S.C.R.

A in error in holding that Mallchan was in unauthorised possession 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 dispu~e in the
former State of Gwalior and that after coming into force of the Code,
B Malkhan acquired Bhumiswami 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 Shiv Dayal has also submitted that respondent no.1,
c having inducted Malkhan as tenant on the land in dispute, is estopped from
asserting that he had no right to grant tenancy in favour of Mallchan and that
possession of Malkhan was unauthorised. It has been urged that since
Malkhan had be~n granted a patta by Vasudev Rao which was valid for life
time ofMalkhan and respondent no.1 has admitted having received rent from
D 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 Constitution.

We will first examine the question as to the nature of right of
E Vasudev Rao in the land in dispute ~nd 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 "Kawaid
Maufidaran" and "Qanoon Mal" of the former Gwalior State.

Maufi grants for Devasthan lands were governed by section 13 of
F 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 (Defec-
tive) Sanad, it shall be deleted from Maufi category and shall
G
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
H Department relating to Devasthan.'
MST. KANCHANIYA. v. SHIV RAM [AGRAWAL, J.] 679

The Maufidar shall be deemed to be holding the land as A
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 B
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 c
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 : D

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 Depart-
ment shall have the authority to dispossess him without an order E
of the Court.

The following four categories of tenants were specified in Section 249
of Qanoon Mal :

(i) Ex-proprietary tenant; F

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

(iii) Gair Mourushi or Gair Dakhilkar, i.e., Non-occupancy
Tenant; and
G
(iv) Sub-Tenant.

In Section 265 of Qanoon Mal, it was provided-that dakhilkar right
is transferable b.y way of sale or mortgage subject to the conditions laid
down. One of the conditions prescribed in the second proviso to s.265 was H
680 SUPREME COURT REPORTS [1992] 2 S.C.R.

A :hat dakhilkar right acquired by a pujari or a manager under s.13 of tht
Qanoon Mal could not be subject to sale or 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
Pane/tam Singlt's case (supra) wherein also the Maufi grant in respect of a
B temple had been resumed and a parwana had been granted to the Pujari of
the temple in accordance with Section 13 of Kawaid 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
c 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 Janiabandi should be made in
the Patti of Milkiyat Sarkar under the management of the Aukaf
D
Department in the column of 'owner' and the Pujari or Mujm~r
should be entered in ziman 4 as Mourusi Bila Lagani.''

In Pancham Sing/J's case (supra), the learned Judges have also set
out the terms of the Parwana (as contained in the printed from) which is
E 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
-
F 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
G 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 appointed from amongst the heirs, if found fit
from conducting the worship or otherwise another proper person would be
H appointed to manage the Devasthan and the land would be delivered to
MST. KANCHANIYA. v. SHIV RAM [AGRAWAL, J.] 681

him. It was clearly mentioned in the Parwana that as a result of cancellation A
....__.( of the maufi the grantee, as Maufidar, does not have any right in the same
and now this Ian~ would be entered in the Register and other papers of
the Patwari as Government property under the control of Aukaf Depart-
ment for the management of the Devasthan.

Construing the terms of the Parwana in the light of Section 13 of B
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 C
language having been used in the Parwana, it must receive its
legal meaning. Under the terms of the Parwana, the former
Pujari had no other status than that of a manager. He could
get the lands cultivated 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 cultivation so that the D
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 E
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 Department for purposes of
management."(p.16)
F
Referring to the definition of "Mourushi Kashtakar" contained m
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 G
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 restriction on sub-letting, the High Court has laid down : H
682 SUPREME COURT REPORTS [1992] 2 S.C.R.

A "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 cosideration for
B 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
c out therein, or upon his death or removal. The death of the
former Pujari was, in the instant case, the terminal 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
petitioner's father, Thakur Murlidharsingh had also lapsed and
he became a tank trespasser." (p.17)
D
Shri Shiv Dayal has submitted that the learned judges of the Division
Bench of the High Court were in error in holding 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
E Pujari would have the rights of a Kashtakar Mourushi. 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 precluded
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
F unable to agree. Although under s.13 of Kawaid Maufidaran, the right of a
Kashtakar 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 Xashtakar Mourushi which have been conferred on the Pujari is
subject to the overriding condition that in case he does not perform his duties
G 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
expression 'Kashtakar Mourushi' in s.2(29) of the Qanoon Mal which im-
poses the condition that the Aukaf Department would be entitled to dispos-
sess, without an order of the court, the Pujari who obtains the right of ·
H Kashtakar Mourushi on the basis of Kawaid Maufidaran and who does not
MST. KANCHANIYA. v. SHIV RAM [AGRAWAL, J.) 683

render his services properly. The matter is further made clear by the A
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 eith~r 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
B
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 ordinary 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 c
than that of the manager functioning under the control of the AukafDepart-
ment 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.I, was not valid and did not confer any right or interest on Malkhan in the D
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 E
acquired Bhumiswami right an 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 F
all the rights and be subject to all the liabilities conferrred or imposed upon
an occupancy tenant by or under the Code. Under s.190, Bhumiswami
-.i. ..._ rights are conferred on an occupancy tenant in cases where the Bhumis-
,, r wami, whose land is held by an occupancy tenant, fails to make an applica-
tion 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 G
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 the assumption that Malkhan
was a sub-tenant of the land in dispute on the date of coming into force of H
684 SUPREME COURT REPORTS [1992] 2 S.C.R.

A the Code. But since we have found that no rights were created in favour
of Mallchan 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· commen:
cement 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.
B
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
c unauthorisedly takes or remains in possession of any occupied land, abadi,
service land or any land which has be1;'\n 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 :

D " '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.
E 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 G) 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 un-
F authorised 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 (Mal.khan'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
G 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 respon-
dent no.1. According to the appellants, under the said patta, Malkhan was
entitled to continue for his life time whereas according to respondent no.1,
the patta was granted for a limited period which had expired. It has been
urged by learned counsel for the appellants that in view of the patta whereby
H Mallchan was permitted to cultivate the land in dispute for his life, it cannot
MST. KANCHANIYA. v. SHIV RAM [AGRAWAL, J.] 685

be said that possession of Malkhan was unauthorised. In view of the death of A
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 in dispute during his life time,
the said authority under which Malkhan was in possession of the disputed
B
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.l.

In Laclzmeshwar Prasad Shukul and Ors. v. Keshwar Lal Chaudhuri c
I
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 moulding the relief to be granted in a
case on appeal, the court of appeal is entitled to take into D
account even facts and events which have come mto existence
·after the decree appealed against." (p.103)

In his concurring judgment, Gwyer, C.J. has referred !o the following
observations of Hughes C.J. in Patterson v. State of Alabama, [1934] 294
E
US 600, at p.607 :

"we have frequently held that in the exercise of ..our appellate
jurisdicti9n we have power not only to correct error in the
judgment under review but to make such disposition of the case
as justice requifes. And in determining what justice does re- F
quire, 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 G
extinguishment of the statutory tenancy while considering the appeal and
grant relief to the appellant accordingly: We t:an, therefore, take note of
the fact that 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, seeJr H
686 SUPREME COURT REPORTS [1992] 2 S.C.R.

A 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
B 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 super-
vision of the Aukaf Department because in the event of his failure. to
properly manage the affairs, he can be removed and the Parwana issued
c 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 'oevasthan cultivated by some other person, it is necessary that the
Aukaf Department exercises control in the matter of initiation of proceed-
.
ings for ejectment of a person who is allowed to cultivate by the Pujari or
D 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 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.
E 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 tlll the matter is so
considered, the appellants are not dispossessed from the land in dispute.
F
The appeal is, therefore, dismissed. It is, however, directed that a
senior official in the Aukaf Department of the 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 permitted, a suitable
G 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.

V.P.R. Appeal dismissed.

(