MADAN, J. - (1.) THE brief facts giving rise to the present writ petition are that respondent No. 3-Murti Mandir Mathuranathji had filed a civil suit u/ss. 180 & 183 of the Rajasthan Tenancy Act, 1955 (for short `the Act') alleging inter alia that it is the recorded Khatedar of land measuring 16 bigha 4 biswa situated at village Atru, District Baran and that the aforesaid land was given on rent to the petitioner in the year 1975 on the condition that the petitioner shall give Rs. 500/-per year towards Munafa Kast to respondent No. 3 to which the petitioner had paid Rs. 500/-towards the same in the year 1975 only and he is defaulter in payment of Munafa Kast since 1976 and as such he be declared as trespasser over the land in question and its continuous possession of the land in question by holding over should be subject to imposition of penalty.
(2.) THE learned Sub-Divisional Magistrate, Atru vide order dated 27. 9. 1991 allowed the suit of the respondent No. 3 against which the petitioner filed appeal before the Revenue Appellate Authority (in short `raa'), Kota. THE RAA vide its order dated 6. 12. 1993, while partly allowing the petitioner's appeal quashed the or-der passed by the SDM, Atru to the extent of allowing 15 times rent to be paid to the respondent No. 3. The petitioner filed second appeal before the learned Board of Revenue for Rajasthan, Ajmer (in short `the Revenue Board') u/s. 224 of the Act against the order of the RAA dated 6. 12. 1993 passed in Appeal No. 514/91. The learned Board of Revenue vide its Judgment/decree dated 3. 6. 1997 observed that the land in question admittedly is of Deity and no person can acquire any tenancy right against the Idol which is a perpetual minor irrespective of the span of time. It was further observed that the appellant did not pay any Munafa for the last 20 years or so, hence, therefore, logically also he is not entitled to retain the possession of said land. Accordingly, petitioner's appeal was dismissed. Feeling aggrieved by the aforesaid order of the learned Board of Revenue, dated 3. 6. 1997 as well as the order dated 6. 12. 1993 of RAA in appeal dismissing the appeal, the present writ petition has been filed before this Court by the petitioner herein on 30. 8. 1997, praying that the order dated 27. 9. 1991 passed by SDM as also the judgment of the learned Board of Revenue dated 3. 6. 1997 be quashed and set aside. I have heard the learned counsel for the petitioner at length and also perused order passed by the Courts below as also perused the relevant material on record.
(3.) THE land in question is admittedly of Deity, which is perpetual minor and being a jurisdic entity, no person can acquire any tenancy right much less sub-ten-ancy right over it against the Idol irrespective of any length of time. Besides, it has also come on the record that the appellant aid not pay any land revenue for the last 20 years or so. Hence logically he is not entitled to retain possession of the said land under any circumstances. THE law is well settled that estoppel cannot be pleaded against the statute and once the statute itself does not permit creation of tenancy right over the land, which admittedly is of Deity. THE question of creation of sub-tenancy right is altogether ruled out. THE ratio of the decision of the learned Board of Revenue in the matter of Ram Kalyan vs. Murti Bade Mathureshji, Kota & Anr. (1), is fully attracted to the instant case. Sec. 45 of the Act, which mandates restrictions on sub-letting of Khudka-sht land Sub-Sec. (4) of Sec. 45 stipulates that no sub-tenant or tenant of Khudkasht shall sub-let the whole or any part of his holdings except in circumstances mentioned in Sec. 46. Sub-Section (1) of Sec. 46 stipulates that the restrictions imposed by Sec. 45 on letting by a holder of Khudkasht (or a land owner) and sub-letting by a tenant shall not apply to (a) a minor or other persons as mentioned in Cls. (b) to (h ). Admittedly Deity is a perpetual minor and a juristic entity within the ambit of Sec. 46 (1) (a) of the Act. Hence there can be no question of creation of either lease or sub-lease contrary to the aforesaid provisions of the Act. The question of possession for a particular period of years is not a factor to be reckoned with in such cases. However, Sec. 45 of the Act stipulates that the maximum period under which possession can be permitted to a Khatedar tenant or his mortgagee to sub-let the whole or any part of the holding to anybody else at any point of time, shall not exceed five years. As a result of the above discussion, the writ petition is devoid of merit and the same is hereby dismissed summarily. There will be no order as to costs. . ;