ISRANI, J. - (1.)IN this writ petition, it has been prayed that the judgment of the Devasthan Commissioner dated July 17, 1990 be quashed and set aside and the judgment of the Assistant Commissioner, Devasthan dated May 8, 1989 be maintained.
(2.)BRIEFLY stated, it is pleaded in the petition that the petitioner's predecessors were granted three Jagirs of different tenures, the first being Jagir of Kishanpole, also known as 'chhota Ramdwara, in Samvat 1893, which is of "udak" tenure. Thereafter, another "udak" tenure Jagir was granted in Bhawani Shanker Pura and the last Jagir in "bhog" (Religious) tenure was granted in Samvat 1920, in village Akodiya, for the Bhog of idol. of Mahadevji installed in the room built by the predecessors of the petitioner within their residential compound wall. The dispute in the present petition is regarding "udak" Jagir of Kishanpole only, which is said to measure 2 Bighas and 18 Biswas of land as mentioned in the report of the Tehsildar dated January 1,1969 (Anx. 14 ). Matmi proceedings are taken according to Jaipur Matmi Rules, 1945, which was validated by Jaipur Matmi Rules Validation Act, 1961. Under the Matmi Rules, detailed enquiry was held by the Revenue Authorities from the level of the Tehsildar and Collector to the Board of Revenue and, thereafter, final order is passed by the Governor, on the recommendation of the Council of Ministers. The original title-deeds, like Patta, Sanad etc. are verified from the State's Old Record. It is stated in the petition that the petitioner is the direct linial heir to the original grantee of the Kishanpole Jagir. From Matmi order dated October, 1964 (Anx. 6), it is clear that Kishanpole Jagir is of "udak" tenure. "udak" Jagirs are different from 'bhog' Jagirs which are religious Jagirs to the deities and 'udak' Jagirs are non-religious, which are granted to individuals by personal name. It has further been pleaded that the "udak" of Kishanpole, also known as 'chhota Ramdwara', is clearly a private Jagir and cannot be a public trust property as it is different from "bhog" Jagir, as clearly mentioned in Matmi Order (Anx. 6 ). The matter has a chequered history and has come before this Court a number of times. This Court directed that enquiry, in accordance with law, should be held for coming to the conclusion whether the Jagir of Kishanpole was a Private Jagir of the petitioner. The Assistant Jagir Commissioner, vide his judgment dated May 8, 1989 (Anx. 19), held that, after due enquiry, as directed by the Commissioner, Devasthan, the "udak" Jagir of Kishanpole, which is also known as Chhota Ramdwara, is not a Public Trust, but is a private property of Mahant Ramswaroopji. Therefore, it cannot be registered under the provisions of the Public Trust Act, 1959. An appeal was filed by one Devkinandan against the above mentioned order before the Commissioner, Devasthan, who vide his judgment dated July 17, 1990 (Anx. 20) reversed the judgment (Anx. 19), accepted the appeal and held that the Kishanpole Jagir be registered as Public Trust.
It is submitted by Dr. M. M. Tiwari, learned counsel for the petitioner, that Udak Jagir of Kishanpole was granted vide Patta Anx. 1, which has been verified from the Jaipur State's Old Records, by reference to the Director of Archives, Rajasthan, at Bikaner, who has certified the same to be genuine. Vide Anx. 1-B, the Devasthan Commissioner also in his judgment Anx. 20 has accepted the genuineness of the Patta (Anx. 1) and also "udak" nature of this Kishanpole Jagir. It is pointed out that from the language of the Patta (Anx. 1), it is very clear that it is an unconditional grant, which is not burdened with any service of seva-puja etc. and has not been dedicated to any religious deity like Mahadevji by religious body like Ramsnehi Sampradaya. It is clearly a personal grant to an individual person by name i. e. , Swami Ramballabha, Chela "disciple" of Swami Ramdas Ramsnehi, for his personal use and benefit i. e. , for his residential house and a Bagichi for him. It is a personal gift in "punya" to a saintly person by a royal lady after purchasing it from the Malis. No words like Mahant, Mahadevji, Ramdwara, Sewa 'puja' Mandir, Ram Snehi Sampradaya and 'brahamchari' (Nihang) have been used in the Patta (Anx. 1 ). It is further pointed out that the terms and conditions of this original Patta cannot be changed by any body. It is submitted that according to a DB decision dated July 10, 1967, of this Court in Writ Petition No. 958/1966 and 1366/1966, it was directed that the disputed land of Kishanpole Jagir be treated as a Jagir and proceedings be taken under the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (for brevity, 'jagirs Act') and Jagir Resumption Rules, 1954 (for short, 'resumption Rules' ). It was directed that notice be issued under Rule 21 by the Collector, Jaipur, to decide whether the property in question is personal property of the petitioner. The Jagir Commissioner, who is competent Authority under the Jagirs Act, vide his order dated March 31, 1989 (Anx. 8), decided that the property in dispute is personal property of the petitioner under Sec. 23 (1) of the Jagirs Act and, therefore, this property cannot be a public trust property. It is also submitted that the Patta (Anx. 1), Matmi Order (Anx. 6) and notice (Anx. 13) issued under Rule 21 of the Jagir Rules by the Collector, Jaipur, conclusively prove that the petitioner is Jagirdar of "udak" Jagir of Kishanpole. It is contended that the Jagir land and public trust property are quite different in nature. Jagirs are held by Jagirdar during his life time only, but the public trust properties are perpetually dedicated for the benefit of the public at large. Therefore, "udak" Jagir of Kishanpole cannot be held to be a public trust property. It is further contended that the petitioner, being uneducated and under a mistaken advice of law, made an application dated July 23, 1964 to the Assistant Commissioner, Devasthan for registration of this property of "udak" Jagir of Kishanpole as public trust. At that time, order of Matmi (Anx. 6) had not been passed in favour of the petitioner by the Governor. However, when he was given correct legal advice on the basis of Patta (Anx. l) and Matmi order (Anx. 6), he applied to withdraw the application given for registration, which was, however, not allowed by the Assistant Commissioner, Devasthan, who treated the application given for registration by the petitioner as an information relating to a public trust property and proceeded to make enquiry suo motu under Section 18 of the Rajasthan Public Trust Act, 1959 (for brevity, 'the Trust Act' ). After due enquiry, the Assistant Commissioner gave his finding vide judgement dated June 30, 1965 (Anx. 3) and held that the "udak" Jagir of Kishanpole was not a public trust property and was personal property of the petitioner. It is also contended that appellant Devkinandan, who filed appeal before the Commissioner, Devasthan is one of the hostile tenants of the petitioner as he did not sell the land to them at Rs. 3/- per sq. yd. , which is clear from the registered notice (Anx. 17) given to the petitioner and also another notice (Anx. 18) given by Shri Gaffar Ali, Advocate. These tenants, therefore, became hostile and stopped paying rent to the petitioner and made false complaints to the Assistant Commissioner, Devasthan, Jaipur. These complaints were rejected by the Assistant Commissioner on July 26, 1962 (Anx. 4) and July 23, 1979 (Anx. 5 ). Thereafter, these hostile tenants went in appeal to the Devasthan Commissioner, against the order (Anx. 5), which was rejected as not maintainable. However, the Commissioner, Devasthan, under Section 7 of the Trust Act, ordered the Assistant Commissioner, Devasthan, Jaipur, vide his judgment dated June 24, 1982 (Anx. 5- A) to again enquire into the matter suo motu. The petitioner thereupon filed a writ petition before a Single Bench of this Court, which was accepted and the disputed property was declared as personal property of the petitioner vide order dated February 17, 1987, reported in 1986 RLR 967. One of the hostile tenants Devkinandan Sharma (Mistri) went in Special Appeal, which was accepted by a Division Bench of this Court and the order of the Commissioner, Devasthan (Anx. 5-A) was restored. Thereafter, the Assistant Commissioner, Devasthan, suo motu re-enquired and gave his finding vide his judgment dated May 8, 1989 (Anx. 19) and held that the property in dispute is not a public trust property, but is a private property of the petitioner. Devkinandan thereupon filed an appeal before the Devasthan Commissioner, who vide his impugned judgment dated July 17, 1990 (Anx. 20) held that the disputed property is a public trust property and the petitioner is the Chief Trustee, and further directed the Assistant Commissioner to appoint other trustees and proceed further, which is illegal, in view of the facts and law mentioned above.

It is submitted by Mr. R. S. Purohit, learned counsel for non- petitioner No. 3, Devkinandan, that the Jagir of Kishanpole, also known as Ramdwara, is a place of worship as is described in Civil Writ Petition Nos. 958/66 and 1366/66, decided by this Court vide order dated July 10, 1967. It is further submitted that once the petitioner himself filed an application under Section 17 of the Trust Act on July 23, 1964 before the Assistant Commissioner, Devasthan requesting to register the said Ramdwara as a public trust property, he cannot be allowed now to submit that it is personal property of the petitioner. The application of the petitioner dated May 3, 1965, requesting to be allowed to withdraw his earlier application under Section 17, was rightly dismissed by the Assistant Commissioner, Devasthan. The petitioner tried to sell some plots out of the land of "udak"jagir of Kishanpole (Ramdwara) to Smt. Phool Kanwar, therefore, the Tehsildar, in compliance with the order issued by the Government of Rajasthan, took possession of the disputed land on August 17, 1966. Two Writ Petitions bearing Nos. 1366/66 and 958/66 were filed by Smt. Phool Kanwar and the petitioner, respectively. Since this step of confiscation taken by the State Government was not in accordance with the Jagir Act and without notice to the petitioner, this Court vide order dated July 10, 1967, accepted the writ petitions and directed that proceedings be taken in accordance with the Jagir Act and Rules framed thereunder. Non-petitioner No. 3 and others made an application before the Assistant Commissioner that the disputed property is a public trust property, but their application was rejected, therefore, they filed an appeal before the Commissioner, Devasthan, who even while rejecting the appeal, directed the Assistant Commissioner, Devasthan to hold a detailed enquiry whether the disputed property is of religious nature or a public trust property (Anx. 6 ). The Assistant Commissioner, Devasthan and Jagir Commissioner enquired into the matter and both of them found the property of Ramdwara/kishanpole Jagir to be personal property of Mahant and held that it did not require any registration under the Trust Act. On appeal filed by non- petitioner No. 3, Devkinandan, the Commissioner vide Anx. 2 held the property in dispute to be a public trust property. It is contended that from the recital of Anx. 1, it is clear from the words "punya Dharti" that it was a charity land. It is further contended that in Samvat 1983, i. e. , 1936, Maharaja Ramsingh was minor and could not have disposed of any property. Therefore. under Rule 18 of the Matmi Rules, it has been provided that if any Patta or Sanad is issued during the period from Samvat 1875 to 1908, (i. e. , 1818 to 1851 A. D.), it would be recorded as void. Such Pattas require confirmation of Resident and, There- after, by the Revenue Minister in council, putting the matter in Cabinet. It is also contended that this provision of law was never brought to the notice of the Government of Rajasthan, while order regarding Matmi (Anx. 6) was issued. It is also contended that even Anx. 6 reads as follows : "subject :- Matmi of Shri Ram Narain Maufidar, Nihang Pujari of Ramdwara (Mahadevji's temple), Jaipur". It is, therefore, clear that this was not a private property of Mahant, but a religious property. It is pointed out that under Section 21 of the Jagir Act, all State Grants were to be resumed free from all encumberances and, therefore, the disputed land was also resumed. However, sub- clause (1) (d) of Section 23 of the Jagir Act makes exception, regarding private place of worship. It is further pointed out that Ramdwara is not a place of private worship, but all the public of-Sangram colony and other colonies come for worship as is evident from the evidence of Inspector Jaswantsingh of Devasthan Department, which has been mentioned by the Devasthan Commissioner, in his judgment (Anx. 20 ). It is also pointed out that this writ petition does not deserve to be entertained as the petitioner had alternate remedy by way of filing Civil Suit. It is, therefore, submitted that no interference be made with the impugned judgment of the Jagir Commissioner.

I have heard both the parties and gone through the documents on record. From the facts stated above, it is evident that the disputed land is a Jagir land and this Court vide its order dated July 10, 1967 treated it to be so and directed that notice be issued to the petitioner under Rule 21 of the Jagir Rules by the Collector, Jaipur to decide whether the property in question is personal property of the petitioner. Thereafter, Jagir Commissioner, who is the competent authority under the provisions of the said Act, vide his decision dated March 31, 1989 (Anx. 8) held that the property in dispute is personal property of the petitioner as per provisions of sub-Section (1) of Section 23 of the Jagir Act. It was further held that Mutani order (Anx. 6) is conclusive and final and cannot be questioned after lapse of 24 years. He also held that the original Patta (Anx. l) to be genuine and the same was verified by the Director of Archives, Bikaner. A State grant, it may be mentioned, cannot be resumed as provided under Sub-rule (b) of Rule 16 of the Matmi Rules. The Patta (Anx. l), admittedly, is a genuine document. The latest Matmi in favour of the petitioner is dated October 9, 1964 (Anx. 6 ). This was sanctioned by the Governor of Rajasthan on the recommendation of the Tehsildar, S. D. O. , Collector, Jaipur and the Revenue Board. It may also be pointed out that Jaipur Matmi Rules, 1945 were struck down by a Full Bench of this Court in Thakur Jai Singh v. Thakur Sobhag Singh and others (1 ). Thereafter, Matmi Validation Act, 1961 was passed. The Apex Court in Sohhag Singh v. Jai Singh and others (2), held that Jaipur Matmi Rules (Validation) Act, 1961 has no retrospective effect. The Matmi was granted in favour of Guru of the petitioner in 1935 and in 1964, Matmi granted in favour of the petitioner, and all other Matmi orders passed earlier than the above mentioned two orders of Matmi are, therefore, not effected by Jaipur Matmi Rules, 1945. It is evident that when the Matmi Rules of 1945 have no retrospective effect, all the Matmis prior to the years, 1945 cannot be questioned now. The contention of the learned counsel for non-petitioner No. 3 that the original grant of Jagir in favour of the petitioner was not in accordance with the Jaipur Matmi Rules, 1945 has, therefore, no force. Apart from this, it may also be pointed out that the Jagir Commissioner is the only competent authority under the provisions of the Jagir Act to decide regarding the nature of the Grant/jagir. Therefore, this Court also vide its order dated July 10,1967, passed in Writ Petitions No. 958/66 and 1366/66, specifically directed the Jagir Commissioner to decide whether the property in dispute is personal property of the petitioner. As already mentioned, the Jagir Commissioner vide his order dated March 31, 1989 (Anx. 8) held that the property in dispute is personal property of the petitioner. Section 47 of the Jagir Act provides regarding over riding effect of the provisions of the Jagir Act on other laws. It lays down that 'save as otherwise expressly provided in this Act, the provisions of this Act and of the rules and orders made thereunder shall have effect notwithstanding anything therein contained being inconsistent with any existing Jagir law or any other law for the time being in force. " Therefore, once this competent authority decides the nature of the Jagir, no other authority under any other provisions of law is competent to re-consider the matter and come to any different conclusion. I am fortified in my opinion by a DB decision of this Court in State of Rajasthan v. Rao Raja Sardar Singh and another (3), in which it was held by this Court that in view of Section 47 of the Jagir Act, the Jagir Commissioner being the authority to determine the debts recoverable from Jagirdar, no other authority will be entitled to determine the same and that the Civil or the Revenue Court cannot go behind it. It was, therefore, held that the State dues cannot be recovered by process under the Rajasthan Land Revenue Act, which would amount to a clear circumvention of the provisions of Sections 46 & 47 of the Jagir Act. While deciding this, reliance was placed on Ram Gopal Reddy v. The Additional Custodian Evacuee Property, Hyderabad (4) and Custodian Evacuee Property, Punjab v. Jafran Begum (5 ).

It will be also desirable to have a look at the relevant provisions of the Jagir Act. Clause (g) of Section 2 provides that "jagirdar means any person recognised as a Jagirdar under any Jagir law and includes a grantee of a Jagir land from a Jagirdar". Sub-clause (h) defines Jagir land and provides that "jagir land means any land in which or in relation to which a Jagirdar has rights in respect of the land revenue or any other kind of revenue and includes any land held on any of the tenures specified in the First Schedule. "item No. 32 in the First Schedule mentions "udak" as a farm of Jagir. According to Anx. 6 Matmi of 1964, Kishanpole is a "udak" Jagir, the Matmi of which had been made in favour of the petitioner. The nature of the grant of Jagir can be determined only from the description of the original instrument granting the same. Therefore, religious Jagirs are different from the non-religious/"udak" Jagirs. "bhog" Jagirs are religious Jagirs as is evident from the notification of the Government of Rajasthan dated October 14, 1985 (Anx. 9), according to which, non-religious Jagirs like "udak" etc. were resumed on November 1, 1958. The two "udak" Jagirs of the petiiioners, namely, Kishanpole and Bhawani Shankerpura were , therefore, resumed on November 1, 1958. The copy of the order (Anx. 13) endorsed to the petitioner addresses him as Jagirdar of Kishanpole and Bhawani Shankarpura. Compensation has to be paid after resumption as per provisions of the Jagir Act. Therefore, after resumption of "udak" Jagir of Bhawani Shankarpura, Compensation was given to the petitioner as per Anx 13-A. However, no compensation, after resumption of "udak" Jagir of Kishanpole was paid to the petitioner, since according to the provisions of sub-section (1) of Section 23 of the Jagir Act, the land of Kishanpole Jagir being abadi and enclosed by the compound wall and also being in continuous possession for more than centuary became personal property of the petitioner. The last Jagir was granted in "bhog" in Samvat 1920 in village Akodia for the idol of Mahadevji, which is installed in a room inside the compound wall of Kishanpole Jagir. Therefore, it can be seen that the instrument of grant itself makes clear whether a Jagir is religious or non-religious. It may also be mentioned that Jagirs are granted for the life time of the Jagirdar and is to be renewed by the sanction of fresh Matmi in the name of each successor, which has been done in the case of "udak" Jagir of Kishan-pole/ramdwara.

(3.)THE Devasthan Commissioner, in his judgment (Anx. 20), also admits the genuineness of Patta (Anx. 1) of "udak" nature of the Jagir land and states that it is not a "bhog" grant. He also states that the said Jagir was granted in "dan" to the ancestor of the petitioner Swami Rarnvallabh. Thus, the grant was made to an individual in his name for his personal use like construction of the residential house and Bagichi, which is also mentioned in Anx. 1. THErefore, from Anx. 1, it is clear that Ramballabh is the only beneficiary of this "udak" grant of Kishanpole. It is further mentioned in Anx. 20 that non-petitioner No. 3 Devakinandan is a tenant of the petitioner. However, a notice was given by non-petitioner No. 3 and others (Anx. 17) to the petitioner for purchasing the land at Rs. 3/- per sq. yd. from the petitioner. THE only inference that can be drawn from this notice is that non-petitioner No. 3 recognised the petitioner to be owner of the land and, therefore, wanted him to sell the same at Rs 3/-per sq. yard. Non-petitioner No. 3 has also filed a Civil Suit, which is pending in the Court of the Munsif, at Jaipur. A copy of the plaint has been produced and marked as Anx. 21, in which, non-petitioner No. 3 in para 14 states that he is owner of the land. Again, before the Devasthan Commissioner, he states that the disputed land is a public trust. Thus, it can be said that the petitioner No. 3 is blowing hot and cold and changing positions from tenant to owner and, thereafter, tried to get the disputed land declared as public trust. It may also be pointed out that non-petitioner No. 3 did not file any objection under Section 18 of the Trust Act, till the decision dated May 8, 1989 was given by the Assistant Commissioner, Devasthan. THE Devasthan Commissioner, keeping in view the changing stands taken by non-petitioner No. 3, has stated in Anx. 20 that he has an adverse interest against the property, which has been termed as public trust property. It may be pointed out that Section 20 of the Trust Act provides that appeal can be filed against the finding of the Assistant Commissioner, Devasthan by only such person, who is either a working trustee or person having interest in a public trust or in any property found to be trust property. From the changing stands taken by non-petitioner No. 3, it can be said that neither he is a working trustee, nor he can be said to have any interest in the public trust property. In fact, he has evidently adverse interest in the public trust property, inasmuch as he wants that this property be sold to him by the petitioner at the rate demanded in the notice given to the petitioner. As stated above, in para 14 of the plaint (Anx. 21), non-petitioner No. 3 has claimed that he is owner of the portion of the disputed land. THErefore, in fact, he had no right to file appeal.
It will be necessary to appreciate the distinction between whether a property is a public trust property or private property. For reaching to a conclusion whether a property is a public trust property, it will be necessary to look into the original document of grant to know the intention of the grantee whether the grant has been made in the name of individual or ascertainable individuals or it has been made in favour of a deity and for the public at large. It will be necessary to see if there is a temple in the said property and what are the entries in the revenue record. Applying these principles to the property in dispute, it is evident from Anx. 1 that the grant has been made in favour of an individual for residence and Bagichi. A temple of Mahadevji is situated within the compound wall of the said property. The Matmi has also been made in favour of individuals from time to time and latest Matmi has been made in favour of the petitioner as an individual. Merely because a temple is situated inside the compound wall of the disputed property and there is no impediment for the public to worship the said deity in the temple, it cannot be readily inferred therefrom that it has been dedicated for the benefit of public at large and the individual/personal character of the property is lost or that it has become a public trust property. It can be said that even in a private temple, no Hindu will stop any person from visiting the temple to worship the deity. I am fortified in my opinion from the decision of the Apex Court in Bihar State Board of Religious Trust v. Mahant Sri Biseshwar Das (6), in which it was held that feeding of Sadhu and giving hospitality to wayfarers is not by itself indicative of temple being public temple or its properties being subject to a public trust. It was further held that dedication to public cannot be readily inferred from the mere fact that members of public are freely admitted to the temple for worship or for attending festivals celebrated by Mahants. The question whether property is given to the Head of the Muth for his personal benefit only, has to be decided either from the terms of grant itself or from circumstances of the case. It was also held that installation of idol permanently on a pedestal and the fact that temple is constructed on grounds separate from residential quarters of Mahant are not conclusive proof of dedication to public as such factors are also found in private temples and muths. It may also be pointed out that in the matter referred to above, the Mahant had failed to produce certain documents, whereunder, the properties had been gifted to the founding Mahant. However, in the matter under consideration, the original Patta has been produced, which is Anx. 1. It may further be pointed out that the objections supported by an affidavit filed by objectors Ram bharose, Mohanlal and others before the Jagir Commissioner, Rajasthan certified copy of which has been produced for perusal of this Court and marked as Anx. 22, shows that in para 5, it has been stated that with a view to please Maharaja Ramsinghji, who was follower of Lord Shiva, the then Mahant, built a Shiv temple and got his request conveyed to the Maharaja for giving him "bhog" grant for Shiv temple, which was granted by way of grant of Akodia. This also indicates that as per objectors, this Shiv temple was built by the then Mahant and not by the grantee.

I do not find any force in the contention of the learned counsel for non-petitioner No. 3 that once the petitioner gave an application dated July 23, 1964, stating that the disputed property is a public trust property, he cannot be now allowed to plead that this is a private property. As already stated above, an application was subsequently filed by the petitioner to withdraw the aforesaid application, which was, however, dismissed. Thereafter, the Assistant Commissioner, Devasthan proceeded to enquire suo motu under Section 18 of the Trust Act and gave his finding on June 30, 1965 (Anx. 3), stating that this property was not a public trust property. When the Assistant Commissioner, Devasthan himself reached this conclusion, after enquiry held suo motu, the property has been held to be private not because the petitioner was allowed to withdraw his application dated July 23, 1964, but, because the Devasthan Department itself came to the conclusion that the disputed property was not a public trust property. The learned counsel referred to Hafiz Mohammad Zafar Ahmad v. U. P. Sunni Central Board of Waqf (Citation missing), in which, it was held that when a petitioner admits certain property to be waqf property, he subsequently cannot claim such property to be his own, as his conduct disentitles him to any relief under Article 226 of the Constitution. This authority is evidently of no help to the respondent, since in the matter under consideration, the application of the petitioner to withdraw his earlier application filed for registering the disputed property as public trust property was rejected, but the Devasthan Department itself after suo motu enquiry held that the property was not a public trust property.