NONREPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 2926 OF 2009
Sri Ganapathi Dev Temple Trust …..Appellant
Versus
Balakrishna Bhat Since Deceased
By His Lrs. And Others …Respondents
JUDGMENT
MOHAN M. SHANTANAGOUDAR, J.
The judgment dated 14.11.2007 passed by the Division Bench
of the High Court of Karnataka at Bangalore in Writ Appeal No. 984
of 2007 is called into question in this appeal.
By the impugned judgment, the Division Bench set aside the
order dated 21.05.2003 of the Tehsildar, Ankola Taluk and the
Signature Not Verified
NATARAJANconsequential mutation entry No. 7948 dated 28.05.2003 in respect
Digitally signed by R
Date: 2019.09.17
16:33:10 IST
Reason:
of the suit property; the order dated 30.07.2005 passed by the
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Assistant Commissioner, Kumta and the order dated 23.03.2006
passed by the Deputy Commissioner, Uttara Kannada, Karward
upholding the aforesaid mutation entry, as well as the order dated
22.03.2007 passed by the Single Judge in Writ Petition No. 12482
of 2006 dismissing the respondents’ writ petition for quashing of
the mutation entry.
2. The brief facts leading to this appeal are as under:
The Respondent Nos. 1(a) to (e) in the present appeal claim
that one late Baba Bommayya Bhat was the archak of the appellant
Ganapathi Dev temple and he was in actual possession and
enjoyment of agricultural land bearing Survey No. 68/2001 to the
extent of 4 guntas (mentioned in some of the records as 3 guntas)
(hereinafter ‘suit property’) situated in the village of Avarsa, which
he had been cultivating since 1969; that after the death of the said
Baba Bommayya Bhat, his son, the late Balakrishna Bhat (husband
of Respondent No. 1(a) and father of the Respondents No. 1(b) to
1(e) herein) continued in possession of the suit property and
consequently the name of Balakrishna Bhat was entered into the
revenue records.
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Further that the deceased Balakrishna Bhat, after obtaining
necessary permission from the Panchayat, constructed a house in
the suit property in 1994 and obtained an electricity connection for
the said house; and that after his demise, Respondent Nos. 1(a) to
(e) are residing in the same house. Respondent Nos. 1(a) to (e)
therefore claimed to be the deemed tenants of the suit property
under the Karnataka Land Reforms Act, 1961 (‘1961 Act’).
3. It is pertinent at this juncture to note the scheme for land
reforms as provided under the 1961 Act. Section 2(34) of the 1961
Act defines ‘tenant’ as meaning an agriculturist who cultivates
personally the land he holds on lease from a landlord and includes
a person who is deemed to be a tenant under Section 4 of the Act.
Section 4 defines a deemed tenant as follows:
“4. Persons to be deemed tenants.—A person lawfully
cultivating any land belonging to another person shall be
deemed to be a tenant if such land is not cultivated personally
by the owner and if such person is not,— (a) a member of the
owner’s family, or (b) a servant or a hired labourer on wages
payable in cash or kind but not in crop share cultivating the
land under the personal supervision of the owner or any
member of the owner’s family, or (c) a mortgagee in
possession.”
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Under Section 44 of the 1961 Act, as substituted by SectionAmending
Act No. 1 of 1974, all lands held by or in possession of tenants
immediately prior the commencement of the SectionAmendment Act shall
with effect from 01.03.1974 (‘date of vesting’) vest with the State
Government. Section 45(1) of the 1961 Act provides for the right of
tenants to be registered as occupants of the land vested with the
Government as follows:
“45. Tenants to be registered as occupants of land on
certain conditions.—(1) Subject to the provisions of the
succeeding sections of this Chapter, every person who was a
permanent tenant, protected tenant or other tenant or where a
tenant has lawfully sublet, such subtenant shall, with effect
on and from the date of vesting, be entitled to be registered as
an occupant in respect of the lands of which he was a
permanent tenant, protected tenant or other tenant or sub
tenant before the date of vesting and which he has been
cultivating personally.”
Section 48A of the 1961 Act enables any person entitled to be
registered as an occupant of land under Section 45 to make an
application to the Land Tribunal praying for such registration.
Respondent No 1(b), Vitthaldas Bhat, filed a Form7 application
under Section 48A in 1979 for grant of occupancy rights in respect
of the suit property in his favour, Form7 being the format for such
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application as prescribed under Rule 19 of the Karnataka Land
Reform Rules, 1974 (‘1974 Rules’).
However, during course of enquiry before the Land Tribunal,
Respondent No 1(b) himself deposed that he was not cultivating the
property and the Form 7 application was made by him on a wrong
notion. He stated that the suit property is to remain in the name of
the appellant temple and pleaded for dismissal of his application.
Hence the Land Tribunal by order dated 28.01.1981 rejected the
said Form 7 application filed under Section 48A of the 1961 Act.
Thus, it is clear that as of 28.01.1981, and prior thereto,
Respondent Nos. 1(a) to (e) were not cultivators of the property, and
therefore could not be deemed tenants under Section 4 of the 1961
Act.
SectionBy Amending Act No. 23 of 1998, Section 77A was inserted in
the 1961 Act which gave one more chance to a person who failed to
apply for registration of their occupancy rights under Section 48A
within the period specified therein, to apply to the Deputy
Commissioner for such registration. Rule 26C of the 1974 Rules
prescribes that the format of the application to the Deputy
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Commissioner would be per Form 7A of the Rules.
In view of rejection of his son’s Form 7 application under
Section 48A, the deceased Balakrishna Bhat was not entitled to
apply for grant of occupancy rights under Section 77A of the
amended 1961 Act. He nonetheless filed a Form 7A application
under Section 77A. The Assistant Commissioner, Kumta by order
dated 15.03.2000 rightly rejected the application of the deceased
Balakrishna Bhat on the ground that it was not possible to confer
occupancy rights or grant in view of the earlier Land Tribunal order
dated 28.01.1981.
4. Prior to the aforementioned proceedings, the Government’s
name was entered into the revenue records of the suit property
based on the presumption that the deceased Balakrishna Bhat was
the tenant of the suit property, and hence the property was vested
with the State Government under Section 44 of the 1961 Act. In his
order dated 15.03.2000, the Assistant Commissioner specifically
observed that the suit property does not come under the purview of
the 1961 Act and directed for the removal of the Government’s
name in the revenue entry of the suit property. This was not
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challenged by the respondents herein. However, this direction was
inexplicably not effected. Hence, the appellant herein filed an
application before the Tehsildar to delete the name of the State
Government and Balakrishna Bhat in the revenue records of the
suit property.
This application was allowed after enquiry by order dated
21.05.2003, and the appellant’s name was entered in the Record of
Rights vide mutation entry No. 7948. The Tehsildar’s order dated
21.05.2003 entering the appellant’s name, based on the previous
orders of the competent authorities, was confirmed by the Assistant
Commissioner and the Deputy Commissioner by orders dated
30.07.2005 and 23.03.2006 respectively. Respondent Nos. 1(a) to
(e) challenged all the aforementioned orders dated 21.05.2003,
30.07.2005 and 23.03.2006 respectively before the learned Single
Judge in Writ Petition No. 12482 of 2006, which also came to be
dismissed.
However curiously, the Division Bench of the High Court, in
the impugned judgment, without appreciating the material on
record in its proper perspective, granted relief in favour of the
respondents on the ground that they had constructed a house on
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the suit property and had been in peaceful possession and
enjoyment of the same and that the entry made in their favour in
the Record of Rights shall be presumed to be true under Section
133 of the Karnataka Land Revenue Act, 1964 (‘1964 Act’). Hence
this appeal.
5. Heard learned counsel Shri S.N. Bhat for the appellant and
learned counsel Shri R.S. Hegde for the respondent. Both the
learned advocates have taken us through the material on record
and the relevant provisions of law and put forth their arguments in
support of their respective cases effectively.
6. The primary issue which arises for adjudication in this matter
is as regards the correctness of the revenue entries in the name of
the respondents. As mentioned supra, the respondents had claimed
to be in possession of the suit property as tenants since the 1970’s.
The Land Tribunal as well as the Assistant Commissioner after due
enquiry have rejected their claims on two separate occasions.
However, the respondents’ contention is that since they have
constructed a house on the suit property in the year 1994 and are
residing therein, their names need to be entered in the revenue
record. Such contention cannot be accepted in as much as they
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cannot, after failing in all their attempts to claim possession as a
tenant, now claim to be in possession by way of construction of
house and not as agriculturists. We are at a loss to understand as
to on the basis and on what right the respondents can claim to be
in possession of the suit property and as to how they could
construct a house on a property on which they do not have any
semblance of right.
7. The suit property admittedly belongs to the appellant temple.
It is also not disputed that the Respondent No. 1(b) and his
predecessors were the archaks of the temple. Needless to say, it is
the bounden duty of the archak to protect the temple property, and
they cannot usurp such property for their own gains. It is relevant
in this regard to refer to the judgment of this Court in Bishwanath
and Another v. Sri Thakur Radha Ballabhji and Others, (1967)
2 SCR 618,:
“9. Three legal concepts are well settled: (1) An idol of a Hindu
temple is a juridical person; (2) when there is a Shebait,
ordinarily no person other than the Shebait can represent the
idol; and (3) worshippers of an idol are its beneficiaries,
though only in a spiritual sense…
10. The question is can such a person represent the idol when
the Shebait acts adversely to its interest and fails to take
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action to safeguard its interest. On principle we do not see any
justification for denying such a right to the worshipper. An idol
is in the position of a minor; when the person representing it
leaves it in the lurch, a person interested in the worship of
the idol can certainly be clothed with an ad hoc power of
representation to protect its interest…
11…B. K. Mukherjea in his book ‘The Hindu Law of Religious
and Charitable Trust’ 2nd Edn., summarizes the legal position
by way of the following propositions, among others, at p. 249.
‘(1) An idol is a juristic person in whom the title to the
properties of the endowment vests. But it is only in an ideal
sense that the idol is the owner. It has to act through human
agency, and that agent is the Shebait, who is, in law, the
person entitled to take proceedings on its behalf. The
personality of the idol might therefore be said, to be merged in
that of the Shebait.
(2) Where, however, the Shebait refuses to act for the idol or
where the suit is to challenge the act of the Shebait himself as
prejudicial to the interests of the idol then there must be some
other agency which must have the right to act for the idol. The
law accordingly recognises a right in persons interested in the
endowment to take proceedings on behalf of the idol.’
This view is justified by reason as well as by decisions.”
(emphasis supplied)
Therefore, it is wellsettled that the deity in a Hindu temple is
in deemed to be a minor, and the Shebait, archaka, etc. or the
person functioning as manager/trustee of such temple acts as the
guardian of the idol and conducts all transactions on its behalf.
However, the Shebait or archaka is obligated to act solely for the
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idol’s benefit. In Sri Thakur Radha Ballabhji (supra), this Court
affirmed the lower courts’ finding that a sale made by the manager
of the deity to a third party, which was not for the necessity of the
benefit of the idol, would not be binding on the deity, and
worshippers or other parties who had been assisting in the
management of the temple could apply to have such a sale set
aside.
In the present case, since the Respondent No. 1(a) to 1(e) and
his predecessors were holding the position of archaks and were
involved in the management of the temple, it would have been easy
for them to get their names entered in the revenue records, ignoring
the interest of the temple. Even otherwise, their attempt to claim
occupancy rights over the suit property have failed. As mentioned
supra, according to their own admission before the Land Tribunal,
they were not in possession of the suit property.
The principle laid down by the Court in Sri Thakur Radha
Ballabhji (supra) would be applicable to the present scenario as
well. Hence the appellant temple has the right, through its present
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managing trustee, to undertake proceedings for the benefit of the
idol for having such wrongful entries set aside, and such wrongful
entries would not be binding on the temple.
8. We find that the reasons assigned by the Division Bench in the
impugned judgment for granting relief in favour of the respondents,
while setting aside the concurrent findings of the three revenue
authorities as well as the order of the learned Single Judge, are
unacceptable.
9. At this juncture, we find it useful to discuss the provisions of
the 1964 Act relevant for adjudicating upon this case. Section 127
of the 1964 Act provides for the preparation of Record of Rights as
follows:
“127. Record of Rights.—(1) A record of rights shall be
prepared in the prescribed manner in respect of every village
and such record shall include the following particulars:—
(a) the names of persons who are holders, occupants, owners,
mortgagees, landlords or tenants of the land or assignees of
the rent or revenue thereof;
(b) the nature and extent of the respective interest of such
persons and the conditions or liabilities (if any) attaching
thereto;
(c) the rent or revenue (if any) payable by or to any of such
persons; and
(d) such other particulars as may be prescribed.”
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Section 128(1) of the 1964 Act requires that any acquisition of
rights must be reported to the concerned officer within a period of
three months from the date of acquisition:
“128. Acquisitions of rights to be reported.—(1) Any person
acquiring by succession, survivorship, inheritance, partition,
purchase, mortgage, gift, lease or otherwise, any right as
holder, occupant, owner, mortgagee, landlord or tenant of the
land or assignee of the rent or revenue thereof, shall report
orally or in writing his acquisition of such right to the
prescribed officer of the village within three months from the
date of such acquisition, and the said officer shall at once give
a written acknowledgment of the receipt of the report to the
person making it…
…Provided further that any person acquiring a right by virtue
of a registered document shall be exempted from the obligation
to report to the prescribed officer.”
(emphasis supplied)
Section 129 provides that the prescribed officer shall enter in
the Register of Mutations every such report made to him under
Section 128 in respect of acquisition of right in land. Section 129(6)
provides that such entries shall be tested and if found correct, shall
be certified by the prescribed officer; whereas Section 129(7)
provides for the transfer of entries from the Register of Mutations to
the Record of Rights after due certification. It is therefore clear that
under the scheme of the 1964 Act, there has to be an initial report
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made to the prescribed officer certifying the occupant’s right in the
land, and the entry in the Record of Rights has to be made and
certified on the basis of such report.
10. The Record of Rights for the year 19731974 shows that the
respondents’ predecessor Baba Bommayya Bhat was cultivating the
suit property and that the deceased Balakrishna Bhat’s name was
entered in the subsequent revenue entries for the suit property.
However, the respondents have not produced on record any report
made by them as required under Section 128 of the 1964 Act
proving that they had acquired any right or title in respect of the
suit property. Nor have they produced any registered document
showing that they have acquired any such right, in which case they
would have been exempt from the requirement under Section 128.
Further, the respondents herein have not at any point,
challenged the Land Tribunal’s order dated 28.01.1981 and the
Assistant Commissioner’s order dated 15.03.2000 which
concurrently found that by the respondents’ own admission, the
suit property belongs to the temple and is not covered by the 1961
Act and the respondents are not eligible for any occupancy rights in
the said property. Hence it is not open to the respondents to claim
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that the land was deemed to have vested in the State Government
under the 1961 Act, and consequently they were not required to
have reported acquisition of rights in the suit property under
Section 128.
Upon perusal of the relevant provisions of the 1961 Act and
the 1964 Act, we are of the considered opinion that if a party has
admitted that he is not in possession as a tenant but as an
unauthorized occupant of the disputed property, the property
cannot be deemed to be vested with the State Government under
the 1961 Act. Consequently, the revenue entry should continue to
remain in the name of the temple/owner of the property. Such
alleged unauthorized occupants have no right to seek an entry in
the Record of Rights under Sections 128 and Section129 of the 1964 Act,
and any entry which is unlawfully made in their favour is liable to
be deleted.
The respondents had admitted in 1981 that they did not have
any tenancy rights, and, as mentioned supra, the Assistant
Commissioner’s order had also specifically found that the suit
property was not under the purview of the 1961 Act. Hence, there
was no basis for the land to be shown as vested in the name of the
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State Government under Section 44 of the 1961 Act. Therefore, the
revenue entry in the Record of Rights in respect of the suit property
wrongfully made in the name of the deceased Balakrishna Bhat,
and consequently the Government, without any basis was required
to be deleted.
Section 133 of the 1964 Act provides that an entry in the
Record of Rights shall be presumed to be true until the contrary is
proved, or a new entry is lawfully substituted therefor. An entry
cannot be made in the Record of Rights without the valid mutation
entry as provided for in Sections 128 and Section129 of the 1964 Act. No
pleading is forthcoming that a mutation entry was validly made at
any point of time in favour of the respondents. In view of the above
discussion, since it has been proved that there was no basis for
making the revenue entry in respect of the suit property, and a new
entry has lawfully been made in the appellant’s name, we see no
reason to give the respondents the benefit of Section 133 as was
done by the Division Bench in the impugned judgment.
Admittedly, the appellant ought to have been more diligent in
getting the revenue entry corrected. However, they had explained in
their submissions before the Learned Single Judge in Writ Petition
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No. 12482 of 2006 that they were under the genuine impression
that since the revenue authorities had found that that the writ
petitioners (the respondents herein) are not entitled to be registered
as tenants of the land, the competent authorities would suo motu
carry out the necessary corrections in the Record of Rights.
However the authorities regretfully failed to do in spite of the
direction to this effect given by the Assistant Commissioner in his
order dated 15.3.2000, which was not challenged by the
respondents herein. The Division Bench has overlooked this aspect
of the matter while reaching its conclusions.
Apart from this, the Division Bench has made certain
observations which are against the available facts borne out from
the record. The Division Bench wrongly observed that there is no
documentary evidence that the suit property is in possession of the
temple, whereas, as mentioned supra, the records of proceedings
show that the respondents themselves have admitted they have no
right over the suit property and it belongs to the temple.
Hence on the basis of the materials on the record, we conclude
that the entry in the respondents’ predecessors’ names in the
Record of Rights was illegal and the revenue records in respect of
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the suit property were correctly modified in the appellant’s name by
the orders of the revenue authorities dated 21.05.2003, 30.07.2005
and 23.03.2006.
11. Hence the impugned judgment in Writ Appeal No. 984 of 2007
is set aside, and the appeal is allowed.
……………………………………J.
(N.V. Ramana)
……………………………………J.
(Mohan M. Shantanagoudar)
New Delhi; ……………………………………J.
September 17, 2019. (Ajay Rastogi)
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