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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 The maufi grant was revoked and the maufi land  was handed  over  to  the  Department  of  Aukaf  as  Government property  vide  Circular  dated  August  13,  1934  of   the Government of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.                                                        671      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                                                         683 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                                                       684  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.                                                        687