ISRANI, J. - (1.) THE above mentioned writ petitions are decided by one single order, since same points of law have been raised in each of the writ petitions.
(2.) SO far as the ten writ petitions filed against the judgment dated April 23,1991, passed by the learned Board of Revenue, Ajmer, are concerned, the facts of Writ Petition No. 3059 of 1991 (Birdha vs. Board of Revenue & Others) are mentioned hereunder: It has been stated that on behalf of respondent No. 4, temple of idol of Shri Srinathji/goverdhan Nathji, situated at Nathdwara, District Udaipur city, a suit was filed, regarding land comprised in Khasra No. 9, situated in Village Kankara, Tehsil Pipalda, which stood in "muafi" and "khudkasht" of the said idol. It was stated in the plaint that, on the date of resumption, the above mentioned land was entered as khudkast"land in the settlement record and the said idols of Shri Srinathji/goverdhanji have become khatedar tenant of the same. It was further stated in the plaint that the idol was a perpetual minor and that the petitioner and others could not acquire khatedari rights in the lands of the idol. The Revenue Officers had unauthorisedly and without giving any information to respondent No. 4, entered the name of the petitioner as khatedar tenant of the lands comprised in Khasra No. 9, measuring 14 Bighas and 16 Biswas, which was illegal and ineffective against the respondent No. 4, as nobody was entitled to get rights in the lands of idol. It was also stated that the petitioner is in possession of the land as trespasser and is not giving up the possession. The petitioner contended in the written statement that respondent No. 4 had no right to file the suit. It was further contended that respondent No. 4 was not holding disputed land in his khudkast", nor was he in possession of the same, at the time of resumption of the 'muafi'. At that time, the petitioner was in possession of the disputed land from the times of ancestors. It was also contended that respondent No. 4 never remained Khatedar tenant of the disputed land. The petitioner-defendant and his ancestors have remained in possession of the disputed land for more than 20 years as owners and their title have already perfected by adverse possession. The suit, filed by respondent No. 4, was dismissed vide order dated March 29, 1986, passed by the learned Sub-Divisional Officer, Kota. However, the appeal filed by respondent No. 4 was allowed by the Revenue Appellate Authority vide its order dated June 2, 1988. The petitioner filed second appeal before the Board of Revenue, which was dismissed vide Anx. 5 dated April 23, 1991. The other three writ petitions have been filed against the judgment dated January 12, 1989, (Anx. 4) passed by the learned Board of Revenue, Ajmer. Therefore, the facts of Writ Petition No. 1381 of 1989 (Rampratap and another vs. Board of Revenue and others) are stated as under: A suit was filed on behalf of Murti Shri Bare Mathreshji, situated at Kota, with regard to agricultural land, bearing Khasra nos. 47, 49, 53,55, 167 and 643, measuring 58 Bighas and 4 Biswas, situated in village Nareda, Tehsil Baran. It was stated in the plaint that idol, being perpetual minor, became khatedar by virtue of Section 23 of the Rajasthan Land Reforms and Resumption of Jagir Act, 1952 (for brevity, 'the Act, 1952'), therefore, these lands should be deemed to be khudkast" of the idol, even though not cultivated personally by idol and notwithstanding the fact that the petitioner was not servant of respondent No. 2, but was paying rent for cultivation to the idol. It was further stated that the petitioner defendant stopped paying rent after May, 1979 and started paying land revenue to the State Government and, therefore, became trespasser and was liable to be evicted. In the written statement, the petitioner-defendants contended that the lands were cultivated by them under their individual rights and not on behalf of respondent No. 4. It was also stated that the disputed lands cannot be deemed to be "khudkast" of the idol and that the petitioner-defendants have been cultivating these lands for the last 35 years and are in possession of the same. The suit of respondent No. 4 was decreed by the Assistant Collector, Kota, vide his order dated December 23, 1980 (Annx. 2), holding that the petitioners shall be deemed to be cultivating the land on behalf of the idol. Thus, by implication, it was held that the disputed lands will be deemed to be "khudkast" lands of the idol and that the petitioners were trespassers. The appeal filed by the petitioners before the Revenue Appellate Authority was dismissed vide order dated July 17, 1981 (Anx. 3 ). The second appeal filed by the petitioners was also dismissed by the judgment dated January 12, 1981, passed by the Board of Revenue, Ajmer. The other set of three writ petitions, bearing Nos. 1381/89, 1725/89 and 2692/89, was also filed against the judgment dated January 12, 1989, passed by the Board of Revenue, Ajmer. In these writ petitions, the suits were filed on behalf of respondent No. 2, i. e. , Moorti Shri Bare Mathreshji and the facts are same, as stated above. Writ Petition No. 3182 of 1989 has been filed against the judgement dated March 31, 1989, passed by the Board of Revenue, Ajmer, which also arises out of the suit filed on behalf of respondent No. 2 plaintiff, Moorti Mandir Shri Bare Mathreshji, and the facts are same, as stated above. Another three writ petitions have been filed against the judgement dated September 22, 1989, passed by the learned Board of Revenue, Ajmer. The facts of Writ Petition No. 2105 of 1990 are stated as under : A suit was filed on behalf of Moorti Shri Chhote Mathuranathji and Reshik Shiromaniji, Kota, respondent No. 2, in the Court of Assistant Collector, Kota, wherein it was prayed that correction of entries in the revenue records be made and petitioners be ejected from the disputed land. In the written statement, it was contended by the petitioners/defendants that after resumption of the 'muafi', all the rights of the idol have been extinguished and by operation of law, the petitioners have become khatedar and they cannot be ejected from the land. The suit filed by respondent No. 2 was decreed vide order dated October 29, 1987 (Annx. 3 ). An appeal filed against the same, before the Revenue Appellate Authority was also dismissed vide order dated May 31, 1988 (Anx. 4) and the second appeal filed by the petitioners was also dismissed vide judgement dated September22, 1989, passed by the learned Board of Revenue, Ajmer. Sarva Shri K. K. Mehrish, D. K. Soral, N. L. Jain and G. K. Garg, learned counsel, appearing on behalf of the petitioners, while arguing, have referred to the facts mentioned in Writ Petition No. 3059 of 1991 (Birda vs. Board of Revenue & Others ). It is contended that various suits for ejectment from the disputed lands were filed on behalf of various idols, mentioned above, against the petitioners, who are cultivating and are in actual possession of the disputed lands, since innumerable years. All these lands were 'muafi' lands of the various idols. The disputed lands were resumed from July 1, 1985, after coming into force of the Jagirs Act. Therefore, the rights of the idols/ temples were completely extinguished. It is submitted that all the petitioners were in possession earlier than Samvat 2015 and are entered as cultivators in the revenue record. A reference was made to Anxs. 6 to 10, in which, even though, there is entry of Muafi Mandir Goverdhan Nathji, but, in column No. 5, name of Birdha, petitioner, has been shown as cultivator. In Anx. 11 (Samvat 2019 to Samvat 2022), there is entry of Government of Rajasthan and also Muafi Shri Goverdhan Nathji. The names of Birdha and others have also been shown as cultivators. Similar entries are also there in Anx. 12 (Samvat 2023 to Samvat 2026 ). It is, therefore, submitted that after the land was resumed, it is in the name of Government of Rajasthan and Birdha and others are shown as cultivators. It is further submitted that the petitioners are cultivating in the capacity of "zaily" and, therefore, they have rights of sub-tenants. It is also submitted that after resumption of the Jagir, the rights of the idol extinguished under Section 22 of the Rajasthan Land Reforms and Resumption of Jagirs Act, 1952 (for brevity, 'the Jagirs Act') and the land was taken over by the State, therefore, the idols had no right to file suit for declaration and ejectment against the petitioners. The petitioners are cultivators, who cultivate the land in the capacity of "zaily". Therefore, the suit/suits filed on behalf of the idols deserve to be rejected, since their rights stood extinguished on resumption of the Jagirs Act. It is pointed out that the Revenue Board, while deciding the appeals, has placed reliance on a Full Bench decision of the Board of Revenue in Shri Shiv Ram vs. Shri Mishru (1 ). It is further pointed out that this decision stands impliedly overruled by a decision of this Court in Ramlal and another vs. Board of Revenue & Others It is also pointed out that under Section 10 of the Jagirs Act, Khatedari rights accrue only to "jagirdars/muafidars" in the "khudkasht" lands of the "muafidar". It is submitted that since the idols never cultivated lands themselves, therefore, there is no entry of "khudkasht" in respect of the idols. It is further submitted that merely because the idol is perpetual minor, it cannot be presumed that the land was held in the "khudkasht" of the temple. It is also submitted that in the revenue record, there is no entry of "khudkasht" as required under Section 2 (i) of the Jagirs Act. The learned counsel also referred to Rule 72 (ii) and Rule 73 (iv) of the Rajasthan Land Revenue (Land Records) Rules, 1957 (for brevity, 'the Rules, 1957'), in this respect. It is submitted by Dr. S. K. Tiwari and Mr. N. K. Maloo, learned counsel, that the Full Bench decision of Board of Revenue in Shivram's case (supra), has not been impliedly over ruled, as submitted by the learned counsel for the petitioners. It is further submitted that a "zaily" cannot acquire right of sub-tenant or khatedar. The word "zaily", as used in Kota, means that a cultivator, who is cultivating the land in the capacity of a "zaily", has neither a heritable nor a transferable right. It is also submitted that sub-section (i) of Section 2 of the Jagirs Act defines "khudkasht", land, which means such land, which is cultivated personally by a Jagirdar. The entries in the revenue record show that the name of temple Goverdhan Nath is mentioned therein, which means that the land was "khudkasht" of Goverdhan Nath. Idol is a perpetual minor, hence the land has to be cultivated through some other person. It is pointed out that entry of 'khudkasht" was to be made in accordance with sub- section (23) of Section 5 of the Rajasthan Tenancy Act, 1955 (for short, 'the Act, 1955'), which was the law prevailing at the relevant time. Therefore, writing of the word "khudkasht" was not the requirement of the law and name of temple was entered in the column of khatedar. Reference was also made to a circular, which shows how the entries were to be made and that the word "khudkasht" was not to be used in the revenue record. The column in the revenue record is of the "khatedar", in which the name of temple has been shown. We have heard both the parties and gone through the documents referred to, during the course of arguments. It will be appropriate to extract some of the Sections/rules of the Acts and Rules referred to, during the course of arguments. Sub-section (23) of Section 5 of the Act, 1955 defines the word "khudkasht", which reads as under:- " (23) "khudkasht" shall mean land in any part of the State cultivated personally by an estate-holder and shall include (i) land recorded as khudkasht, sir, havala, niji-jot, gharkhed in settlement records at the commencement of this Act in accordance with law in force at the time when such record was made, and (ii) land allotted after such commencement as khudkasht under any law for the time being in force in any part of the State. " The word "khudkasht" has also been defined in sub-clause (i) of Section 2 of the Jagirs Act, which reads as under : - " (i) 'khudkasht' means any land cultivated personally by a Jagirdar and includes- (i) any land recorded as Khudkasht, Sir, or Hawala in settlement records; and (ii) any land allotted to a Jagirdar as Khudkasht under Chapter IV; (k) land cultivated personally' with its grammatical variations and cognate expressions means land cultivated on one's own account- (i) by one's own labour; or (ii) by the labour of any member of one's family; or (iii) by servants on wages payable in cash or in kind (but not by way of a share in crops) or by hired labour under one's personal supervision or the personal supervision of any member of one's family: Provided that in the case of a person who is widow or a minor or is subject to any physical or mental disability or is a member of Armed forces of the Union, or who, being a student of an educational institution recognised by the Government is below the age of twenty five years, land shall be deemed to be cultivated personally even in the absence of such personal supervision. " In Column No. 3 of Anx. 6, the name of Muafi Mandir Shri Goverdhan Nathji, through Pujari Goswami Govindlal, Nathdwara, is mentioned. In column No. 5, name of Birdha is shown as cultivator. In column No. 5 of Anx. 8 (Samvats 2014 to 2017), there is mention of Muafi Mandir Goverdhan Nathji, Nathdwara, through Pujari Goswami Govindlal. Similarly, in column No. 5 of Anx. 9 (Samvats 2018 to 2019) and Anx. 10 (Samvats 2020 to 2023), the name of Mandir Goverdhan Nathji is shown as "khatedar". Thus, from the entries mentioned above, it is clear that temple Goverdhan Nathji has been shown as Muafidar and Khatedar. It may be pointed out that there is no column in the proforma of the form, in which, entry of Khudkasht can be made. There is only column of Khatedar, in which, the name of Khatedar has been shown. We do not find any force in the contention of the learned counsel for the petitioners that sub-section (k) of Section 2 of the Jagirs Act, which defines "lands cultivated personally" is not relevant, as the land was not cultivated personally by the idol. It is settled law that idol is a perpetual minor and, therefore, it is not expected to cultivate the land personally and, in such a case, as provided in proviso to sub-sec. (k), "the land shall be deemed to be cultivated personally, even in absence of such personal supervision. " The learned counsel for the petitioner also referred to sub-rule (ii) of Rule 72 of the Rules, 1957, which lays down that for land held as 'khudkasht' or 'havala' by an estate holder, the word 'khudkasht' or 'havala' may be entered in place of tenure. It was further pointed out that sub-rule (vi) of Rule 73 lays down that "if any land is in Khudkasht or an estate holder, the only word 'khudkasht' will be entered. If the land is cultivated by a 'shikmi', 'sijari' etc. , the name of person cultivating the land with the nature of his tenure and length of cultivation will be entered in red. . . . . . . " It may be pointed out that these Rules came into force on January 23,1958, when the same were published in the Rajasthan Gazette. Therefore, evidently, in the earlier years, before these Rules came into force, it was not expected and required, that the word "khudkasht" be used in showing that the land is in the name of "khudkasht". As already pointed out, in the proforma of the form, in which the entry of the revenue record is made by the State, there is no column, requiring entry of the word "khudkasht", in case the land is held in that nature. The only requirement is that the name of Khatedar has to be shown in the column of "khatedar". There is no column of "khudkasht" as such. The entries were, therefore, made as per the prevailing law. In the Annexures, mentioned above, names of Birdha and others have been shown as cultivators, who, according to the learned counsel for the petitioners, are cultivating the land in the capacity of "zaily". The word "zaily", according to the learned counsel, does not mean tenants, but they are equivalent to sub-tenants. However, the word "zaily" has been defined in Circular No. l issued by the erstwhile State of Kota is Samvat 1923. In this circular, in its second part, at p. 17, at S. No. 69 onwards, the word "zaily" has been defined. At S. No. 69, it is mentioned that "zaily" is a person, who cultivates land of another Khatedar. At S. No. 70, it is further mentioned that "zaily" or his legal representatives will have right to cultivate the land only for the period and as per conditions in the agreement with the Khatedar, he shall not have any transferable right, regarding the land. Thus, the word "zaily" cannot be treated to be as sub-tenant. It may also be pointed out that in Circular No. 2, at Page 18, at S. No. 31, proforma of the record to be kept, regarding the agricultural land, has been given. In this proforma also, there is no column of "khudkasht", but there is column No. 3, regarding "khatedar" and "zaily". Thus, there was no requirement of any law at the relevant time to mention the word "khudkasht", as contended by the learned counsel for the petitioners, in the revenue record. What was required is to mention the name of "khatedar" and in the Annexures, referred to above, the name of temple/idol has been shown in the column of "khatedar". So far as entry is column No. 5 of Anx. 11 (Samvats 2019 to 2022) is concerned, there is mention of "rajasthan Sarker" alongwith "muafi" Shri Goverdhan Nathji, Nathdwara. Thus, the name of temple appears in all the Annexures.
(3.) WE do not find any force in the contention of the learned counsel for the petitioners that the disputed lands,which were "muafi" of the various idols were resumed from July 1, 1985, after coming into force of the Jagirs Act and that the rights of idols/temples were extinguished, as the lands were not held in the nature of "khudkasht". WE have already discussed above in detail to show that the land was held by idols/temples as "khudkasht" and the idols, being perpetual minor, cannot be expected to cultivate the land personally. A Division Bench of this Court in Nathu and Others vs. Board of Revenue and Others (D. B. Civil Writ Petition No. 1485 of 1992), decided on April 7, 1992, held that since deity of temple is a perpetual minor, the land shall remain "khudkasht", even though it may be cultivated through anyone. WE have carefully gone through the Full Bench judgement of the Board of Revenue in Shivram's case (supra) as also the decision of this Court in the matter of Ramlal and another (supra) and find no force in the contention of the learned counsel for the petitioners that the Full Bench decision of the Board of Revenue in Shivram's case (supra) has been impliedly over-ruled by a decision of this Court in Ramlal and another (supra ). The learned counsel for the petitioners have further pointed out that since the land was resumed and the rights of the idols/temples stood extinguished, therefore, they were not entitled to file suits against the petitioners and that the matter under the provisions of Section 23 (2) of the Jagirs Act, should have been referred to the Jagir Commissioner, who, after holding prescribed enquiry, could pass such order as he deems fit, regarding the disputed land. WE also do not find any force in this contention, as the suits have been filed to decide the inter-se-dispute between "muafidar" and private persons. It may also be pointed out that provisions of sub-section (2) of Section 23 of the Jagirs Act will apply only when there is dispute between the State and "muafidar/jagirdar". Therefore, question of its application to the dispute between the petitioners and idols does not arise. It may also be pointed out that the petitioners, who are cultivating in the capacity of "zaily". could not get any khatedari rights under the provisions of Section 15 of the Act, 1955, since they were not recorded as "khatedar" in the revenue record. Under the provisions of Section 19, no khatedari rights could accrue to the petitioners, keeping in view the provisions of Sections 45 and 46 of the Act, 1955. Section 45 imposes restrictions on letting and sub-letting on holder of "khudkasht" land and Section 46 clarifies the position that these restrictions shall not apply in case of a minor. The idol, being perpetual minor, evidently, these restrictions do not apply in the case of the idol. Same view was taken by this Court in Mohanlal vs. Board of Revenue & Others (D. B. Civil Writ Petition No. 2189 of 1990), decided on August 13, 1991. Even though, we have discussed the matter in detail, as mentioned above, it may be pointed out that in proceedings under Article 226, this Court is not sitting as Court of Appeal over the findings of fact recorded by the Board of Revenue, nor this Court will re-appreciate the evidence itself. It has been held time and again that this Court, in its extra-ordinary jurisdiction, shall not even correct any error of fact, however, apparent it might be, on the ground that the evidence, on which it was based, was not satisfactory or sufficient, particularly when there is finding of the "final authority" under the Statute. In the matter under consideration also, the judgments under challenge have been passed by the Board of Revenue, which is final authority under the Statute, so far as the revenue matters are concerned. We are fortified in our view by decision of the Apex Court in State of Orissa and another vs. Murlidhar Jena (3), in which, it was held "that the High Court has no power to re-appreciate the evidence. " In Syed Yakoob vs. K. S. Radhakrishnan (4), it was held by the Supreme Court that "the jurisdiction of the High Court to issue a writ of certiorari is a supervisory jurisdiction and the Court, while exercising it, is not entitled to act as an Appellate Court. " This limitation necessarily means that findings of fact reached by the inferior court or Tribunal, as a result of appreciation of evidence, cannot be re-opened or questioned in writ proceedings. An error of law, which is apparent on the face of record, can be corrected by a writ, but not an error of fact, however, grave it may appear to be. On this ground itself, all the writ petitions are liable to be dismissed, as the petitioners have challenged several factual findings. In the result, all the writ petitions are dismissed and the orders of the Board of Revenue under challenge, in all the. writ petitions, are upheld. There will be no order as to costs. . ;