- (1.) BADRI and other appellants have filed this second appeal against the order of the Additional Collector, Bharatpur dated the February 6, 1963.
(2.) BRIEFLY, the facts of the case are that in village Abhora, Tehsil Kumhor, District Bharatpur, the temple of Shri Chaturbhujji was founded by Malikan Den of that village and was given some muafi land of 29,09 bighas. Ramdas was appointed as the pujari of this temple. On 24. 5. 1961 a 'majornama' was filed on behalf of Moharsingh and others the respondents in the present appeal before the Collector Bharatpur, that the pujari of the temple was surreptitiously transferring the muafi land granted to the temple to Dwarka, Udairam and Badri appellant. The Collector should take over the temple under the management of the State. The Collector forwarded this application to the Tehsildar for necessary action who came to the conclusion that the muafi enjoyed by the temple was not a village service grant and no action can be taken under sec. 191 of the Rajasthan Tenancy Act. The land already taken in the supurddari under the Tehsildars order be restored to the person from whose possession it was taken. Against this order of the Tehsildar dated 21. 11. 1962 an appeal was preferred by the present respondents Moharsingh etc. before the Collector Bharatpur who accepted the appeal on 6. 2. 1963 on the ground that the land held by the temple was a village service grant and ordered that the temple be taken under the management of the State and the pujari and others be ejected. The present appellants filed an appeal before the Revenue Appellate Authority, Kota who by his orders dated the 16th March, 1963 held that the second appeal was not maintainable against the order passed by the Tehsildar under the Tenancy Act and returned it to the appellants for presentation to the proper Court. The appellants have therefore preferred this appeal here. A preliminary objection was raised that since the order passed by the Collector as a first appellate Court was against the order of the Tehsildar, no second appeal lay to this Court. Thereupon the counsel for the appellant prayed that it should be treated as revision and be heard. The counsel for the respondent urged that the jurisdiction to hear revision vests in the Single Bench and the Division Bench should not hear this revision and deprive the respondent of his valuable right of filing a special appeal from the order passed by a Single Bench before a Division Bench. Upon this objection the case was transferred by the Division Bench to the Single Bench constituted by myself. The arguments were then heard and the record of the case was examined treating the appeal as a revision petition. It is an admitted fact that this temple of Shri Chaturbhujji situated in village Abhera was founded by the Biswedars or Malikan Den of the village. Ramdas was appointed as the pujari. The question arose whether this grant of land of 21 bighas and 9 biswas made by the malikan den i. e. the Biswedars to this temple was a village service grant or a grant for the maintenance of the temple only. It was argued by the counsel for the applicants that this grant of land to the temple of Chaturbhujji by the biswedars cannot be treated as a village service grant and consequently the provisions of Sec. 191 of the Rajasthan Tenancy Act read with sec. 180 cannot be invoked for the ejectment of the pujari and others as gair khatedar tenants. Alternatively the counsel argued that even if this grant of land to the temple was considered as the service grant the order of the Collector passed in appeal for ejectment of the appellant was illegal and without jurisdiction. The ejectment of a tenant under sec. 191 sub-sec. 2 has to be done in accordance with the provisions of Chapter XI of the Tenancy Act as if the holder was a gair Khatedar tenant. He could be ejected under sec. 180 of the Rajasthan Tenancy Act on an application or a suit filed by a landholder in a Court of Asstt. Collector concerned. This was a miscellaneous proceedings initiated in the office of the Collector and when the Tehsildar who passed this order and refused to interfere with the possession of the appellants, the Collector had wrongly exercised the jurisdiction in the impugned order in ordering the ejectment of the appellants and taking the temple under the control of the State. In support of the contention the counsel for the applicant cited R. R. D. 1962 page 197 to show that a religious grant for maintenance and worship of gurdwaras is not a grant for the community as a whole and cannot come within the preview of sec. 5, sub-sec. 45 of the Rajasthan Tenancy Act in which village service grant has been defined. The counsel for respondent replied by saying that the land in question was a village service grant and is covered by the definition given in the Rajasthan Tenancy Act. He, however conceded that the Tehsildar and the Collector wrongly exercised the jurisdiction in this matter in entertaining the suit for ejectment of the applicants. The suit for ejectment of a tenant should have been filed before the Assistant Collector concerned. I have considered the arguments advanced from both sides. Assuming that the land in question granted to the temple of Shri Chaturbhujji was a village service grant then the interest of the village servant being not heritable and transferable he was liable to ejectment on the ground mentioned in sec. 191 of the Rajasthan Tenancy Act and he could be only elected as a gair khatedar tenant. In accordance with the provision of Chapter XI of the Act, a gair khatedar tenant could be ejected u/s. 180 in accordance with the procedure prescribed in secs. 180 to 182 i. e. by filing an application on behalf of the landholder and if the application is contested by treating the application as a plaint and proceeding with the case as a suit. Such suits under sec. 180 of the Rajasthan Tenancy Act could only be entertained by an Asst. Collector concerned and not by a Tehsildar. Therefore, the Tehsildar in assuming the jurisdiction and passing the order dated 2. 11. 1962 acted without jurisdiction and the order passed by him was consequently illegal. Consequently the appeal entertained by the Collector, Bharatpur and reversing the illegal order of the Tehsildar concerned was also improper and he also acted without jurisdiction. Thus the entire proceedings before the subordinate Courts were clearly illegal and without jurisdiction and deserve to be set aside. The second question that remains to be decided is whether the grant of the land for the maintenance of the temple should be treated as a village service grant or only as a muafi land. A village service grant has been defined in sec. 5 sub-sec. 45 of the Rajasthan Tenancy Act as follows: - Sec. 5, Sub-Sec. 45 - "village Service Grant" shall mean a grant in any part of the State by whatsoever name designated and either rent-free or at a favourable rate of rent or in the other terms made in lieu of or as remuneration for some specific service to be performed to the village community or in the village administration, and the holder of such a grant shall be called a 'village servant. " Sec. 41 of the Rajasthan Land Revenue Act, 1956 gives the list of the village servants which runs as follows : - 41. Village servants - "in every village or a group of villages there shall be appointed and maintained so many and such of the following village servants as the Collector, subject to the orders of the State Government may direct, namely : - (i) a village watchman or Chowkidar. (ii) a village balai, and (iii) such other village servants as the State Government may from time to time notify in the official gazette. " From the plain reading of these two sections it is quite clear that the grant of land to the temple cannot be considered as a village service grant. Temples render no service to the village community or to the village administration as required in the definition in sec. 5 sub-sec. 45 of the Tenancy Act. In my opinion the temple provides a facility where the people belonging to the religion or the deity could assemble for satisfaction of their spiritual desires. In a village community there must be some people of various caste; creed and religion and it cannot be said that the temple created by the founders renders any specific service to all such persons. On the contrary persons following their faith would only go to a temple or a mosque or a gurudwara concerned which is acceptable to them. Thus it cannot be said that no grant of land to the temple is a village service grant. In RRD 1962 p. 197 cited by the counsel for the applicant it has been held by the Division Bench that the grant for maintenance and worship of gurudwara is not a village service grant. As stated village service grant must be as defined in S. 41 of the Land Revenue Act, that the village servant must perform some service to the community or the administration at large of a village. It cannot be said that the temple or the pujari of the temple renders any service to the community at large. As stated above it only provides a facility where the people having faith in the deity of the temple could go and offer prayer. This has nothing to do with the village Service. In view of this I hold that the grant of this land to the temple cannot be called the village service grant and procedure adopted for taking over the management of such grant lands which would amount to taking over the management by the State of the temple as well and to eject the Pujari and others as trespassers or gair khatedar tenants cannot be applied to this case. The other question therefore arises is what would be the position of such grants made to the temple. In this case the biswedars are the founders of the temple and they collectively offered this land in muafi for the maintenance and worship of the deity of the temple. This muafi has now been resumed under the Jagirs Act of 1952 and the temple in future would only be entitled to the annuity under the Act for its maintenance. Under the Zamindari and Biswedari Abolition Act, 1959 temples on abolition of a biswedari does not vest in the Government. It is a place of worship and its ownership would remain with the biswedars or the founders of the temple. Only the grant land to the temple would vest in the State. It is open to the founders of this temple that is the Ex-biswedars to manage the temple in the way they think best and in doing so they may exercise the powers as trustees of the temple against a pujari who has failed to discharge his duties properly. It is also open for these ex-biswedar founders of the temple to take such action against the tenants of the land granted to the temple after ascertaining with whom the khatedari rights of the land granted to the temple rest. If the Ex-biswedars come to the conclusion that the khatedari rights of the land granted to the temple still remains with the temple they may take such action they deem necessary for ejectment of the tenant. But in case the khatedari rights have been acquired by the tenants then the Ex-biswedars will have no remedy against such tenants and they would have to be contended with the annual grant made by the State in lieu of the resumed muafi. I, therefore, accept this revision petition of the petitioner, set aside the impugned order of the Collector, Bharatpur and direct that the temple be restored to the Ex-Biswedars concerned leaving them to pur sue the remedy against the sitting tenants and pujari in accordance with law. . ;