PRASAD, J. - (1.) THE present appeal is filed against the decision of the learned Single Judge of this Court dated 23. 11. 2000 whereby he had dismissed the writ petition of the petitioner.
(2.) THE question involved in the writ petition before the learned Single Judge related to the rights of the appellant qua a land which was earlier entered as a "doli" land of the Temple Shri Laxmi Narainji. THE case of the petitioner is that the "doli' entered in the name of the temple was akin to Jagir of the temple and with the promulgation of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 such Jagir of the temple got resumed in the State. Gheesa son of Chela was entered as tenant of the land. From Gheesa the petitioner is alleged to have purchased the land. According to the petitioner, subsequently in a settlement operation instead of State Government, Temple of Shri Laxminarain was entered as a khatedar tenant of the land and Mishru, the present petitioner was entered as a sub-tenant. A suit was filed against such entries. The bone of contention in the suit was that such entries could not have been made and it was not within the competence of the settlement authorities to alter the entries in the record of rights. Such suit filed by the petitioner was dismissed on 7. 12. 1988. The judgment had become final as no person has further challenged the dismissal of the suit. According to the learned counsel for the petitioner, he has a right to challenge such entries notwithstanding the dismissal of the suit as the same were without jurisdiction. Further the case of the petitioner is that the suit was filed by the temple under Section 183 of the Rajasthan Tenancy Act, 1955 (referred to hereinafter as `the Act' ). The suit filed under Section 183 of the Act can only be filed against a trespasser. The petitioner was admittedly if not a khatedar tenant then a sub-tenant. There is difference between a sub-tenant and a trespasser. Learned Single Judge considering the case of the petitioner dismissed the writ petition holding that the temple land cannot be recorded in the name of a private person. Such recording being an unauthorised act cannot be saved. The learned Single Judge has further said that the case relied upon by the petitioner, namely, Ram Lal vs. Board of Revenue (1), has no application and the case of the petitioner is covered by a decision of this Court rendered in Kehar Singh vs. Board of Revenue & ors. Learned counsel for the petitioner-appellant has reiterated his arguments raised before the learned Single Judge and has stressed that the judgment in Ram Lal's case (supra) covers the case of the petitioner and no suit could be filed against the petitioner under Section 183 of the Act and the petitioner cannot be treated to be as a trespasser.
(3.) WE have considered the submissions made by the appellant. It is not disputed that the land was earlier recorded as a `doli' land of the temple. A land recorded in the name of the temple has to be cultivated by some one else. It cannot be expected that the deity itself will cultivate the land. If the deity cannot cultivate the land personally then in view of the doctrine of "lex non cogit and impossibilia" (the law does not compel a man to do what he cannot possibly perform) and "impossibilium nulla obligatio est" (the law does not expect the party to do the impossible), it can be said that the land was being cultivated by the deity through its Pujari and was a Khudkasht land of the deity. Section 10 of the Act provides that the khudkasht land of the Jagirdar is to be deemed to be his khudkasht land. Section 10 of the Act reads as under:- "10. Khatedari rights in khudhasht land.- As from the date of resumption of any jagir land, any khudkasht land of a Jagirdar shall be deemed to be held by the Jagirdar as a khatedar tenant and shall be assessed at the village rate. " ;