- (1.) THIS is a second appeal against the order and decree given by the Revenue Appellate Authority, Jaipur dated 9-12-1963, whereby the order and decree passed by the Assistant Collector, Behror dated 1-3-1961 were reversed.
(2.) THE circumstances leading to this second appeal are that the plaintiffs-appellants had brought-forth a suit for ejectment of trespassers and possession under sec. 183 of the Rajasthan Tenancy Act, hereinafter called the Act, before the Assistant Collector, Behror. Originally the suit was filed for injunction under sec. 92-A of the Act on 23-5-1958 which was later on amended to a suit for ejectment and possession. THE suit lands bear Khasra Nos. 951 and 953, measuring 4 bighas and are situate in village Barod of Tehsil Behror It is admitted by the parties that the suit lands were in the muafi of the deity of the temple of Shri Baldeoji Maharaj and the plaintiffs are the pujaris and sarbarakars of the said temple. THE suit lands were in the cultivatory possession of Bhura defendant respondent upto Smt. 2014 (1957 AD ). THE plaintiffs alleged in the plaint that Bhura-defendant had surrendered this land on 4-3-1968 and had delivered its possession to the plaintiffs, but subsequently had dispossessed them. Bhura defendant had in defence taken the stand that he had never surrendered the lands in dispute and his cultivatory possession over it had been continuous till the filing of the suit. THE trial court decreed the suit. THE defendant went in first appeal before the Revenue Appellate Authority who accepted the appeal and remanded the case to the trial court on 15-5-1961. On an appeal to the Board of Revenue by the plaintiff the said order of the learned Revenue Appellate Authority was set aside on 29-8-1962 with the direction that the first appellate court should dispose of the appeal on merits. On 8-1 1-1963, the defendant-appellants presented an application before the first appellate court, that, since, the disputed land being mafi pujarath', had been resumed on 1-7 1963 in pursuance of Government Notification No. F lg. (63) Rev/a/61 dated 21-6-1963, the plaintiff respondent was not entitled to bringforth the suit. THE point for determination before the learned Revenue Appellate Authority was the effect of the resumption of the mafi of Thakurji on the suit land which formed part of the said mafi. Having placed reliance on the decisions of this Board in Daleepsingh vs. Th. Hanuman Singh (1957 RRD 261), THE Nagpur High Court in Chhokkhan vs. Mohd. Odeoulla Khan (AIR 1953 Nagpur 361), the Supreme Court in Haji Sk. Subhan vs. Madhorao (AIR 1962 SC 1233), the Supreme Court in Suraj Ahir vs. Prithinathsingh (AIR 1963 SC 454 ). it was averred by the defendant-appellants that the plaintiff was not competent to bringforth the suit under sec. 183 of the Act, whereas it was contended by the plaintiff respondent that the suit lands were in his khudkasht and therefore the resumption of the said mafi of Thakurji Shri Baldeoji Maharaj could not effect his right as the khudkasht holder khatedar. The learned Revenue Appellate Authority examined the effect of the resumption of the mafi on the suit land. He referred to the provisions of Sec. 22 and 23 of the Rajasthan Land Reforms & Resumption of Jagirs Act, 1952, hereinafter referred as the Jagir Act, regarding the effect of resumption (Sec. 22) and exemption from the consequence of resumption (Sec. 23 ). He also referred to Sec. 13 of the Act, which confers khatedari on the Jagirdar in respect of his 'khudkasht' land, subsequent to the resumption of his jagir. 'kudkasht has been defined in Sec. 5 (23) of the Act which prescribes that land to be 'khudkasht' shall include (i) cultivated personally by the estate-holder, (ii) recorded as khudkasht. Sir, Havala, Niji-Jot, Gharkhed, in the Settlement records at the commencement of the Act, and (iii) allotted after such commencement as khudkasht under any law for the time being in force in any part of the state The plaintiff-respondent's claim over suit land as 'khudkasht' did not come under any one of the above categories. Nor was the decree passed by the trial court executable as a consequence of the resumption of the said mafi on 1-7-1963. The rulings of the SC in Haji Sk. Subhan vs. Madhorao (AIR 1962 SC 1230) and the decision of this Board in Daleep Singh vs. Th. Hanumansingh (1967 RRD 261) were relied upon and it was held that due to the subsequent event of resumption, the plaintiff had lost his status as the person who could admit the defendant as a tenant and could not be entitled to proceed with the suit u/s. 183 of the Act. The plaintiff's suit was, therefore, dismissed and appeal of the defendant appellant was accepted. Hence this second appeal by the plaintiff. It has been argued by the learned counsel for the plaintiff appellant that proceedings had also been initiated by Ramdeo one of the plaintiffs, under Section 145 Cr. P. C. on 3-3 1958, against the defendant-respondents. A compromise was effected between the parties and the defendant respondents surrendered the suit land and delivered possession to the Gram Panchayat and verified by the Tehsildar. Entries were accordingly effected in the revenue record, The suit for injunction u/s 92a was filed by the plaintiff appellants on 23-5-1958 as the defendant-respondents allegedly threatened to interfere with the former's possession. The plaintiffs were dispossessed by the defendants on 15-9-1958. That is why, the amended plaint seeking relief under Sec. 183 of the Act also was filed on 7-1-1959 in pursuance of his application filed on 24-12-1958, praying for amendment in the plaint which was accepted and the court ordered for submission of amended plaint under Sec. 183 of the Act on 26-12-1958. The defendants denied the fact of compromise alleging that it was a fabricated document. The trial court decreed the suit on 1-3-1961, but the relief for compensation was refused. In the first appeal filed by the defendants before the Additional Commissioner, it was held by him on 15-5-1951, that the trial court did not frame issues properly and, therefore, four fresh issues were framed and the case was remanded to the trial court for giving its findings on those fresh issues and to decide the case on its merits, thereafter. The plaintiff aggrieved by this order of the Addl. Commissioner went in appeal before this Board and a Division Bench comprising of S/shri Khemchand and R. N. Madhok, held on 24 8-1962 that the four fresh issues framed by the Additional Commissioner were uncalled for as the status of the Idol did not require any determination and those issues did not arise out of the pleadings of the parties. The appeal was, therefore, accepted and the Additional Commissioner was directed to decide the first appeal filed by the defendants, on its merits. The case went back to the Revenue Appellate Authority and on 8 11-1963, an application was presented before him by the defendants alleging that due to the resumption of the mafi 1-7-1963, the plaintiff did not any longer retain the right to pursue the suit under sec. 183 of the Act and the suit should, therefore, be dismissed, On the back of this application it was ordered by the Court that notice of the application be given to the plaintiffs who may also be directed to file their reply on 18 11-1963, the next date of hearing already fixed for hearing the appeal. On 18-11-1963, the arguments on behalf of the parties were heard on the application of the defendants dated 8-11-1963 and without going into the merits, the plaintiffs' appeal was dismissed on 9-12-1963 on the ground that due to the changed circumstances brought forth by the resumption of the mafi the plaintiffs were not entitled to pursue the suit any more under Sec. 183 of the Act. This impugned order of the learned Revenue Appellate Authority was assailed on the following grounds. (i) The lower court had passed its judgment in the case on the application of the defendants alone on 8-11-1963. This application was not duly supported by an affidavit or by any documentary evidence. Besides, on 8-11-1963, on the back of this application, it was ordered by the learned Revenue Appellate Authority that arguments on the application would be heard on 18-11-1963 the date of hearing of the case already fixed. Instead of giving its decision on this application, the court proceeded to decide the appeal itself. This was not correct. (ii) In the Board's judgment of 24-8-1962, it had been clearly and unequivocally observed that the issues number 1 and 4 freshly framed by the learned Additional Commissioner, were redundant in particular and so were the other issues numbers 2 & 3 as the idol of Thakurji Shri Baldeoji Maharaj was admittedly the mafidar in a State grant and the finding of fact whether the said deity was the land-holder or the khatedar had no bearing on the suit. The status of the idol or deity was thus well established and there was no need for determining in afresh. The other issues were also uncalled for as they did not arise out of the pleadings of the parties. A material irregularity was, therefore, committed by the learned court in having pressed in the impugned order the status of the deity. The direction of the Board in its order dated 24-8-1962 given to the Revenue Appellate Authority was to decide the case on its merits basing its judgment on the issues framed and findings given by the trial court, This direction was flouted by the lower court by passing the impugned order not on merits but on the application of the defendant-respondents dated 8-11-1963, itself. (iii) The Supreme Court judgments in - Haji Sk Subhan vs. Madhorao (AIR 1962 SC. 1280) and Suraj Ahir vs. Prithinath Singh (AIR 1963 S C. 454) relied upon by the lower Court, were not on all fours with the instant case, as in those rulings the Supreme court has laid down only the general principles and they do not fit in the peculiar circumstances here. The right, title and interest of the deity Shri Thakurji Baldeoji Maharaj in the mafi lands percolated and devolved upon the Pujari Sarbarakar, in as much as the khudkast right was concerned. (iv) On a reference made to paragraph 1 of the plaint it would be clear that plaintiffs had specifically claimed suit land to have been in their cultivatory possession whereas the defendants had in their written statement decried this claim of the plaintiffs only in general terms and no where had denied the khudkasht of the plaintiffs specifically, Even if the learned lower court found it necessary to establish the status! of the deity, in relation to the suit land it ought to have allowed leading of evidence by the parties for the determination of this point at issue. The correct course would have been to have framed the issue and remand the case to the trial court for leading evidence and giving its findings thereupon as required under Order 41, Rule 25 C. P. C. Failure of the learned Revenue Appellate Authority to do so and in giving his findings on the point was unwarranted and bad in the eye of law. The impugned judgment was a reversing one and no reasons were given by the lower court for such reversion. The impugned judgment was therefore, no judgment, as was held by the Rajasthan High Court in Mst. Radhi Bai vs. Parasram (1961 RLW 627) and in Dhanraj vs. Hirachand (1963 RLW 316 ). (v) Suit land was in the Khudkasht of the plaintiffs and is covered by the definition of 'khudkasht' in S. 5 (23) of the Act. The Khasra Girdawari of Smt. 2012 to 2014 supported this. The following documents were also allowed by this Board to be produced as additional evidence by the plaintiff appellants in support of the factum of Khudkasht: (a) Jamabandi - Khewat Khatoni Smt. 2011, (b) Jamabandi - Smt. 2007, (c) Parcha Bandobast - Smt. 2020 to 2033, (d) Registered Agreement between the parties dated 27-1-1956. (e) Order of the Addl. Commissioner dated 14-1-1956 All these documents support the plaintiff's contention that they were in possession of the suit lands as Khudkasht prior to filing of the suit and also prior to resumption of the mafi. The authorities in support are State vs. Pratapsingh (1965 RRD 20b) and Chogalal vs. State (1967 RRD 119 ). (vi) The defendants were shown in the entries of Smt. 2013 as the cultivators. This entry was wrong in the face of all other entires as referred to above, and such an entry would not confer any right and title unless defendants would prove their sub tenancy. Failure to do so would place them in the category of trespassers as held in Bhanwarlal vs. Kishanlal (1968 RRD), and Jain Pratima Kishangarh vs. Kishan (1968 RRD 501 ). (vii) The entries in the Settlement Parcha Smt. 2020 to 2023 produced by the plaintiffs as additional evidence before this Board were challenged by the defendants though an application for correction of entries subsequent to the filing of the settlement parcha as additional evidence. Therefore, the rule of estoppel and acquittance would apply against the defendants as held in Arjun vs. Yusufali (1968 RRD 181 ). (viii) Regarding the production of additional evidence in second appeal by the plaintiff-appellant it was pointed out that there were three courses open to this Board. Firstly, the Board might itself entertain the additional evidence and give its finding under O. 41, R. 27 C. P. C. or secondly, the additional evidence be sent to the' first appellate court to give its findings under O. 41, R. 25; or thirdly, remand the case to the first appellate court to examine the evidence, give its findings and decide the appeal afresh under O. 41, R. 28. It has been contended on behalf of the defendant-respondents that the proceeding initiated under sec. 145 Cr. P. C. had terminated in favour of Bhura-defendant as he was found to have been in possession of the suit lands. In the khasra Girdawari for Smt. 2013-14, the entries stood in his name whereas those entries were changed in favour of the plaintiffs in the Rabi of Smt. 2014, but the same were ordered by the Sub Divisional Officer, to be corrected and made in defendant - Bhura's name on 7-1-1958. This strengthened his claim over the suit lands. On a reference to paragraphs of the plaint dated 23-5-1958, it is found that the plaintiff had averred to his status in relation the suit land by describing the mafi as (vfrik;s ljdkj) and that the plaintiffs were carrying khudkasht over the suit lands farming part of that mafi. How could lands granted in mafi for the (Hkksx [kpz) of Thakurji Baldeoji Maharaj be claimed in their khudkasht by the Pujari Sarbarakars? There has been no more for amending para 1 of the plaint and it stands. One of the sons of Ramdeo deceased plaintiff Mushaddilal who is also one of the co-plaintiffs in his statement recorded prior to the framing of the issues under O. 10, R. 1, C PC. had admitted that the suit land was retained in the possession of the person who did the sewapuja. This corroborates the factum of suit land being in mafi for meeting the BHOG KHARCH of the deity. P. W. 1 Srilal, one of the pujaris and Mukhtiar-e-am of the plaintiff appellants had stated having asked defendant - Bhura to hand over possession of the suit land as it was for the BHOG KHRCH. This clearly proves defendant - Bhura's possession and tenancy at the time of the filing of the suit and even prior to it. Regarding the two jamabandis of Smt. 2007 and 2011, it was conceded that there would be no objection to their being admitted in evidence. In the former, Ramdeo father of the present plaintiff appellant was not entered as the Bhogta. In Col. 4 names of certain pujaris appear including Deendayal s/o Ramdeo, one of the plaintiffs, but not of Ramdeo or of the remaining two brothers In Col. 5 Kanha was entered as a temporary tenant for one year Smt. 2007. In the later jamabandi for Smt. 2011, the entry is (efunj cynsoth egkjkt o,sgreke iqtkjh;k) the pujaris being the same as shown in the former jamabandi of Smt. 2007. Col. 5 shows Kanha s/o Khuba, Ramsaroop, Narain and Chatu as Ghair-mauroosis. This goes to show that the deity was the AALA MALIK in place of the State with certain reservations i. e. the land could not be alienated by wayof sale, gift, hypothecation etc. The Alwar State Mafi Rules had come force on 1-6-1939. Rule 3 (b) (i) defines "bhog KHRCH" mafi. R. 7 provides for succession to such mafi which was to be regulated in accordance with the Alwar State Punya Rules. R. 5 of those Rules Stipulates that a BHOG KHRCH mafi is to be placed in charge of such persons who are held suitable for the 'puja' Rule 9 (c) laid down the duties of the 'pujari'. Rule 13 provided how and when a Pujari could be dismissed. Thus, 'pujari' could not be treated as the 'malik'. He was only a 'sarbarakar'. The defendant-respondent did not have an objection to the admission of the registered Iqrarnamaof 27-1-1956, executed by the Ghair-mauroosis as entered in the jamabandi of Smt 2011 in favour of the same pujaris. Here also the 'pujaris' have been described as (eksgrfeeku) The jamabandi of Smt, 2015 produced as additional evidence in rebuttal by the defendant-respondent also supports the entries of the previous jamabandis produced in evidence by the plaintiff-appellants that the entry of Bhogta was in the name of mandir Shri Baldeoji Maharaj and shown as (o,greke) Shrilal 1/4 share, Prabhulal 1/4 share, Surajbhan 1/4 and Deendayal Jamnadas 1/4 Shane, In Col 5, Badri Prashad mafidar has been shown as the cultivator in respect of Khasra No. 953 whereas Bhura-defendant as the cultivator of Khasra No. 951. The jamabandi of Smt. 2019 also produced as evidence purports to the same entries. The Parcha Lagan for the settlement of Smt. 2020 to 2033 also shows the status of the mafi as mandir Shri Baldeoji Maharaj as the Bhogta and the Pujaris alongwith their respective shares as described in the jamabandi of Smt. 2015. All these documents clearly define the status of the pujaris as (eksgrfeeku) Sarbarkars in unequivocal terms. Ramdeo-Plaintiff's name for the first time appears and that too as a khatedar in 1963, whereas it had been averred in the plaint dated 23 5 1968 that Ramdeo was the khudkasht holder of the suit land. Thus Ramdeo had no locus standi to bring forth the suit. It was also pointedly brought to the notice of the court that Ramdeo had died in 1959 and his name for the first time appeared in the Annual Register in 1963. This gave a presumption of fabrication in the entries. Referring to the provisions of Sec. 13 of the Act, it was argued that the mafi lands could have been converted into the khatedari of the estate-holder if such lands were in the khudkasht of the mafidar at the time of the resumption or abolition of the mafi. Similarly, if a tenant of khudkasht of the estate-holder would become entitled as such to remain on the land under Sec. 16-A of the Act. , provided such land has been let out to him lawfully on or after the commencement of the Act. If the estate-holder becomes a khatedar of his khudkasht land under Sec 13, the tenant of such khudkasht would become the sub-tenant holding under and from such khatedar-tenant. If a person is a tenant of such mafi land at the commencement of the Act, and not a sub-tenant or tenant of khudkasht, he shall become a khatedar tenant, u/s. 15 (1) of the Act. In the first instance Ramdeo plaintiff was not the pujari as provided in the Alwar State Mafi Rules & the Alwar State Punya Rules and even if it is conceded that suit lands were in the personal cultivatory possession of the pujari, at the time of the commencement of the Act, those lands being in the mafi of Thakurji Shri Baldeoji Maharaj, the deity, the khudkasht would have been the khudkasht of the mafidar i. e. the deity and the pujari being only the manager or Sar. barkar of the deity could not claim the khudkasht right simply on the strength of having been in personal cultivatory possession of the suit lands. The khudkasht would have been of the deity in such a situation and on the resumption of the mafi such khudkasht right wo)uld automatically stand extinguished because Annuity was given to the mafidar deity in lieu of the resumed mafi as would be evident from the Annuity Certificate issued by the Jagir Commissioner on 25-2-1968 and the revised Annuity Certificate issued by him on 18-12-1968 in Form 12 A under Rule 39 (2) of the Rajasthan Land Reforms and Resumption of Jagirs Rules, 1954, as well as the certificate issued by the Deputy Collector (Jagir), both the documents having been produced as additional evidence by the defendant-respondent before this Board. It was, therefore, averred that the mafi being a religious grant for the Bhog Kharch of Thakurji Shri Baldeoji Maharaj and the said mafi having been issued by the Jagir Commissioner in lieu thereof, neither the deity nor the pujaris - Sarbarkars could be construed as the khudkasht holders of the suit lands for the reasons that - Firstly, nowhere from the record the deity's khudkahst had been proved; secondly, the pujaris being only the Sarbarkars could not be the khudkasht-holders, and thirdly, since no where on record, the pujaris have been shown in cultivatory possession they could not be admitted as tenants under Sec. 9 of the Jagir Act. In support of the above contention, our attention was drawn towards the following case law - (1) Unreported decision of the Board of Revenue for Rajasthan dated 19-7-1965 in Appeal No. 15/1962 Bharatpur - Murti Mandir Shri Jainarainji through Parshadilal Pujari vs. Bhola; (2) In the matter of mafi- Matmi of Mahant Balmukanddas (1966 RRD 332); and (3) Unreported decision of the Rajasthan High Court-DB Civil Writ petition No. 150/1960 Gangaram vs. Dhuldas decided on 29-3-1962; (4) Shri Govindldlji vs. State of Rajasthan (AIR 1963 SC 1938) Our attention was also drawn by the learned counsel for the defendant-respondent towards an application moved by the latter on 8-11-1963, on account of legislative changes broughtforth in the Act. No reply was given to this application by the plaintiff-appellants despite notice. The appellate court could take into account any changes broughtforth and having material effect on the matter due to changes of facts, events and law. In this application, it was averred that since the mafi stood resumed with effect from 1-7-1963, under Government Notification No. F. lg (63) Rev. A/63 dated 21-6 1963, the plaintiffs, could not proceed with the case. The learned lower court was justified in taking cognizance of the subsequent legislative change and its effect on the said mafi and the appeal before him in view of the decisions of The Supreme Court AIR 1965 SC 524 (Ram Ran Bijay Singh vs. Behari Singh) and The Rajasthan High Court AIR 1964 RRD 161 (Onkar vs. Jairam ). In reply to the argument advanced on behalf of the plaintiff-appellants that the first appellate court did not give opportunity to him to adduce to prove that suit land was in his cultivatory possession and khatedari, nor any issues were framed and case remanded to the trial court under 0. 41, R. 25 CPC, it was averred that the argument was not sustainable as provisions of O. 41, R. 25 were not attracted in the instant matter. Besides, it was no where proved that the suit land was let out to the defendant-respondent by the plaintiff appellants in their capacity as the bonafide pujaris and, therefore, there was no contract effected as between a land-lord and tenant reference was made to Sec. 105 of the Transfer of Property Act, 1882 by Mulla page 637, in the light of which a contract between the lessor and the lessee had not been struck between the parties. Since the suit lands had not been claimed as the khudkasht of the plaintiff-appellants, a direct relationship had been established between the defendant-respondent and the State. The plaintiff- appellant, therefore, did not have any locus standi with regard to the suit lands. This was further supported by the Board of Revenue's decision dated 24-8-1962, in which it had clearly been recognised that the plaintiff - appellants were not the claiming to be the mafidars and the deity's right as such stood well established. In rejoinder, the learned counsel lor the plaintiff - appellants said that the defendant - respondent had tried to build up a plea which had never been raised before the two lower courts. This would be evident from para 1 of the plaint in which a definite claim of khudkasht had been made and in reply thereof in their written statement the defendant - respondent had acceded to this by averring that there were three other co-sharers besides the plaintiff and, therefore, plaintiff alone did not have the right to bring forth the suit. This was in recognition of Ramdeo deceased-plaintiff both as a mafidar and Pujari. Issue had been decided by the trial court in favour of the plaintiff on 5 8-1960. The finding on this issue had not been challanged neither in the first appeal nor in second appeal under Sec. 225 of the Act. Such a challenge does not find place in the memorandum of appeal filed before the first appellate court and this was clear from the failure of the defendant to enclose a copy of the decision of the trial court dated 5-8 1960 alongwith it. The defendant-respondent was, therefore, precluded from re-agitating this issue as the order of the trial court dated 5-8-1960 had become final. He is estopped by the principle of resjudicata, as decided by this Board in the unreported case of Bhim Singh vs. Peetha-attracting provisions of S. 225 of the Act. This also found support from Krishnapasula vs. Dattary (AIR 1966 SC 1024) Tek Bahadur vs. Debisingh (AIR 1966 SC 292) Raruhasingh vs. Achalsingh (AIR 1961 SC 1097 ). The statement of Bhura DW 1 very clearly establishes his status as a tenant and that of the deceased plaintiff - Ramdeo as the landlord or in otherwords of a lessee and a lessor. In cross - examination Bhura DW 1 had accepted that the suit land was Ramdeo's and not of Deendayal.
(3.) REFERRING to the defendant-respondent's plea that the surrender deed was fraudulently obtained, it was averred that the surrender-deed was real and genuine since it had followed after the Razinama struck between the parties soon after the filing of the application under Sec 145 Cr. P. C. by the plaintiff. The surrender deed was duly attested by the Gram Panchayat and the Tehsildar. Possession of the suit lands had been handed over by the defendant-respondent to the plaintiff-appellant and the act of surrender could not be branded as fraud since it had already been acted upon. Coming to the plea that a pujari or Sarbarakar could not be both the mafidar by virtue of" the physical disability of the duty to cultivate and the tenant it was argued that the two rulings of AIR 1963 SC 1039 and 1966 RRD 332 were not relevant to the instant issue-whether a pujari could acquire khudkasht right, as this issue had not been touched therein. In the case of Mandir Shri Jaiharatnji v/s. Bhole, ( Appeal No. 15/1962/bharatpur/dt; 19. 7. 1966 ) it was not proved that land was in khudkasht of deity and that is why the pujari's right of khudkasht was not recognised; whereas in the instant case the deceased Ramdeo's possession and cultivation stand duly proved. Besides, if the deity's khudkasht is recognised through the pujari, any person other than the pujari, cultivating such lands could acquire khatedari only by resorting to the provisions of Sec. 19 of the Act. This has not been done here. The ' puja ' of the deity was done by 'osra' or turns by the various pujaris and during the ' Osra ' of one of them, that pujari could let out the land for cultivation to any one of the pujaris who was out of ' Osra ' and the cultivation done by him would be deemed to be cultivation by all the pujaris. In the event of the land being let out to an outsider i. e. a person who did not belong to the group of pujaris, such an outsider Would only be a sub-tenant, the deity being the mafidar landlord, and the pujaris both jointly and severally, being the tenant. The judgment of the Rajasthan High Court in Gangaram v/s. Dhuldas (DB Civil writ Petition No. 150 of 1960 decided on 29. 3. 1962) actually supported the plaintiff-appellant as the pujaris dual capacity both as the sarbarkar and tenant stood proved because the surrender by the defendant-respondent was a lawful surrender under Sec. 55 of the Act and defendant-respondent could not have acquired any khatedari right. The entries in the remarks column of the khasra Girdawari had their own value in favour of Ramdeo-deceased plaintiff and his occupation of suit land would not find support from Surja Ahir v/s. Prithinath (AIR 1963 SC 454), Ram Ran Bijayasingh v/s. Beharisingh (AIR 1965 SC 525 ). In view of the decisions of the Supreme Court in Sonawati v/s. Shriram (AIR 1968 SC 466) and K. Venka-tarmian vs. Seetharama Reddy (AIR 1963 SC 1526 ). The learned Revenue Appellate Authority had thus committed a gross and material error. Defendant respondent had no where been able to prove that he was Ramdeo deceased plaintiff's tenant. The onus, to prove, how they came into possession of suit land, lay squarely on the defendant respondent and since this was not done, he was a trespasser. We have given anxious and careful consideration and thought to the elaborate arguments advanced on behalf of the parties. The basic issue which requires a decision and on which the entire case hinges is the effect of the resumption of the mafi-Bhog Khurch of Thakurji Shri Baldeoji Maharaj on the suit land It is admitted that the suit lands formed of the said mafi It is also admitted that the plaintiff-appellants were the pujaris Sarbarkars of the mafi. They have claimed to be the cultivators of these lands and thus the khatedars also as distinct from the khudkasht of the mafidar-deity. It is well understood that the mafi was resumed on 1. 7. 63. The suit was first broughtforth by Ramdeo, the deceased plaintiff on 23. 5. 1958 for injunction under Sec. 92-A of the Act. An amended plaint was filed on 7-1-1959 seeking relief under Sec. 183 of the Act for ejectment of the defendant-respondent, who, it was alleged, had first surrendered their possession of the suit land through an agreement duly attested by the Gram Panchayat and the Tehsildar on 4-3-1958, and subsequently forcibly re-entered upon the suit lands on 15*9-1958, dispossessing the plaintiff. These dates are relevant. The suit for injunction was filed under Sec 92-A of the Act on 23-5-1958. This was thus subsequent to the execution of the surrender agreement of 4-3-1958. The threats of dispossession turned into actual dispossession of plaintiff by the defendant on 15-9-1958, which led to the filing of the amended plaint under Sec. 183 of the Act for ejectment of trespasser. Thus, a sequential rationale has been built up by the plaintiff-appellant. However, the fact remains that the suit lands were part of the mafi-Bhogkharch of the deity and the plaintiff appellants were the pujaris Sarbarkars. The question material here is whether the pujari-Sarbarkars could also become the tenants of the mafidar deity and claim a right which was no longer retained by the diety through whom such a right could accrue it could be possible but when we refer to the Record of Rights and the Annual Registers, we find that the deity had been entered as the Bhogta the beneficiary land holder and this leads to the presumption of khudkasht by the land holder. Since the land-holder was the deity, the element of physical disability to cultivate came in as provided in Sec. 46 of the Act. Therefore any person who cultivated the suit lands was a tenant of khudkasht and on the resumption of the mafi such a tenant would become tenant of khudkasht u/s. 16-A of the Act. A tenant of Khudkasht is conferred with khatedari right under Sec. 19 of the Act but such khatedari right would not accrue 'if such part of the said land is held from any of the persons enumerated in Sec. 46. Here the land holder is the deity suffering from a physical disability as enumerated in S 46 and thus no khatedari right could be claimed by the tenant or sub-tenant. It is note worthy here that no proceedings, as envisaged under Sub-section (2) of Sec. 19, had been initiated by any of the rival claimants. Now the question arises whether the right, title and interest of the diety in the mafi lands percolated and devolved upon the pujaris-Sarbarakars in as much as the khudkasht right was concerned. From the evidence on record it is clear that suit lands were in the Bhog-kharch mafi of Shri Baldeoji Maharaj - the deity and they were retained in the possession of the person who performed the 'sewa-puja'. The 'sewa-puja' was performed by the 'pujaris' by 'osra' or turns. Only those persons could perform the 'sewa-puja' who were qualified to do so under the A1war State Mafi Rules and the Alwar State Punya Rules. Under these Rules, a pujari had the status of only a sarbarakar and could be dismissed under Rules 13 of the said Punya Rules. Thus, a pujari could not become the land holder or' '. The Jamabandi entries also clearly show the suit lands as mafi of Thakurji Shri Baldeoji Maharaj (i. e. the pujaris have been described as the 'mohatminan' which confers upon them the status of Sarbarkars alone. If suit lands are taken to be in the khudkasht of the deity that right' automatically got extinguished with the resumption of the mafi on 1-7-1963. This is borne out by the grant of an Annuity Certificate by the Jagir Commissioner in favour of the deity in lieu of the resumed grant. Now here on record the deity's khudkasht has been entered. The cultivatory possession of the pujaris in also not proved from the record as would be clear from the unrebutted arguments of the learned counsel for the defendant-respondent that the name of Ramdeo - the deceased plaintiff, for the first time appeared as Khatedar as late as in 1963 and defendant Bhura's name in the Khasra Girdawari of Rabi Smt. 2014 when struck off in favour of the plaintiff was reinstated by order of the Sub-Divisional Officer on 7-1-1958. We have, therefore, no hesitation in holding that the plaintiff-appellants were only the pujaris and sarbarakars and as such could not acquire any Khudkash or Khatedari rights over the suit lands consequent upon the resumption of the Bhog Kharch rnafi of Thakurji Shri Baldeoji Maharaj. As a corollary to this, we also hold that the plaintiffs could not seek relief under sec. 183 of the Act was with the resumption of the Mafi, their status as sarbarakars of the deity in relation to the suit lands forming part of the said mafi also got extinguished automatically and plaintiffs were no longer competent or entitled to admit defendant as a tenant. The lower court was fully justified in taking cognizance of legislative changes sub-equent to the filing of the suit. We do not find any force in the arguments of the learned counsel for the plaintiff appellants that the application dated 8-1 1-1963 filed by the defendant respondents alleging incompetence of the suit u/s 183 of the Act due to resumption of the mafi, was kept for bearing of arguments of the parties on 18-11-1963 and instead of giving a decision on this application, the learned lower court had erred inproceeding to decide the appeal itself. The suit was filed u/s 183 of the Act for ejectment of trespassers and as a result of subsequent legislative changes the effect of the resumption of mafi was that the plaintiffs were not entitled to proceed with the suit under sec. 183, being not entitled to admit the defendants as tenants. The entire case of the plaintiffs trumbles and the action of the lower court in basing its decision on this factor alone could not be as sailed as incorrect or having thus committed a material irregularity. ;