DARSHAN LAL v. RAM NATH — 1998 DIGILAW 57 (HP)

JUDGMENT P.K. PALLi, J.—The judgment would dispose of RFA No. 143 of 1993 and Cross-objection No. 236 of 1993. The parties, hereinafter in this judgment, shall be referred to as plaintiffs and defendants. 2. The first appeal arises out of the judgment passed by the learned District Judge, Sirmour District at Nahan whereby the suit filed by the plaintiffs under Section 92 of the Civil Procedure Code stands dismissed. 3. According to the plaintiffs, Shadi Ram and Kalu Ram were two real brothers and were the predecessors-in-interest of plaintiffs Darshan Lal, Nem Chand and Banarsi Dass and Ram Nath, defendants were the owners of the suit property. The property is said to be public religious trust where a temple containing the deity Lord Krishna and Radha stands installed. According to the plaintiffs, the temple was created as a public trust for religious and charitable purposes and public had always a free access to visit the temple and make offerings. 4. According to the plaintiffs, Shadi Lal and Kalu Ram are founders of the trust and they themselves managed the affairs where after one Basheshar Dass, brother of plaintiff No. 1, managed its affairs. Basheshar Dass is said to have died in the year 1955 and thereafter Sita Ram, father of plaintiff No. 2, started managing the affairs of the temple. Sita Ram is said to have abdicated the management in favour of defendant No. 1. The relationship of the parties has been given in the genealogical table in the plaint itself and has been reproduced by the learned Court at page 3 of the judgment. 5. It is further said that defendant No. 2 had filed a suit in the year 1969 against Defendant No. 1 claiming himself to be the Mohatmim of the institution. Defendant No. 1, in turn, claimed himself to be the Mohatmim. Both were claiming to be the Mohatmims of two institutions located adjoining each other. Defendant No. 2 is said to have fraudulently got himself recorded as Mohatmim of the suit property in connivance with the revenue staff. Some samadhis of saints are also alleged to be there in the suit property and are said to be the objects of the worship. Defendant No. 2 is said to have fraudulently got himself recorded as Mohatmim of the suit property in connivance with the revenue staff. Some samadhis of saints are also alleged to be there in the suit property and are said to be the objects of the worship. One Professor Chatterji, who is said to be a well known sculptor and painter, had contributed to the temple paintings and sculptures one Ram Prasad is said to have denoted 12 Bighas of land to the deity. Defendant No. 1 is said to be mismanaging and misappropriating the trust property and various acts of sacrilege are attributed to him. He is said to have put up a board on the entrance of the premises that the public was not entitled to have an access to the temple premises without his permission. The plaintiffs, thus, seek removal of Defendant No. 1 from the position of Mohatmim and Defendant No. 2 is said to have no right, title or interest in the suit property and the entries projecting him as Mohatmim be declared void. 6. Defendant No. 1, while laying contest to the suit, has come up with the plea that it was Kalu Ram alone who was owner of the suit property and that he never created any public religious or charitable trust. The defendant claims that Kalu Ram kept on managing the suit property till his death as owner where after his father Atma Ram who was nephew of Kalu Ram, started the managing of the affairs and after his death, it is he who is looking after the management and the affairs. It is denied that he has misappropriated any part of the property or has committed any act of sacrilege. A further plea has been raised that though the idols are installed in the temple, yet these are meant for the purposes of worship by the Defendant and his family members. Other allegations in the plaint have also been denied. 7. On appreciation of the material placed on record by the parties, the learned Court has held that no public trust, as alleged by the plaintiffs, was ever created by Shadi Lai and Kalu Ram. The findings on other issues are insignificant. 8. Learned Counsel appearing for the plaintiffs Mr. Other allegations in the plaint have also been denied. 7. On appreciation of the material placed on record by the parties, the learned Court has held that no public trust, as alleged by the plaintiffs, was ever created by Shadi Lai and Kalu Ram. The findings on other issues are insignificant. 8. Learned Counsel appearing for the plaintiffs Mr. Kuldip Singh is at pains to contend that the plaintiffs have successfully established on record that there exists a public trust of religious and charitable nature and the learned Court below has not cared to peruse the record properly. Reliance is being placed by the learned Counsel on the statements of PW-2, PW-3, PW-4 and PW-5 apart from the documents Exts. PA, Ext. PC, Ext. D-4 and Ext. D-5 as well as on the statement of the defendant recorded as DW-1. 9. In reply, Mrs. Devyani Sharma has adopted the observations made by the learned Court below in the impugned judgment and has further highlighted the order passed by the Financial Commissioner Ext. D-3 wherein the temple has been held to be a private one. She has also pressed that the cross-objections filed by the defendant be accepted as the defendant is aggrieved against the findings recorded by the learned trial Court on issue No. 4. 10. After hearing the learned Counsel for the parties at length and on careful perusal of the impugned judgment and the record, we find that there is no merit in this appeal. 11. The only question that needs determination by this Court is as to whether the institution and the property attaqched to it is a public religious and charitable trust or not? Unless it is found, on appreciation of evidence, that there is express or constructive trust created for public purposes of a charitable or religious nature, the very provisions of Section 92 of the Civil Procedure Code cannot be invoked. It is, thus, absolutely essential for the plaintiffs to establish the existence of a public trust for invoking the provisions of Section 92 of the Civil Procedure Code. In order to prove the existence of such a trust, the plaintiffs were required to lead evidence of dedication or creation of a trust for religious and charitable purposes. It is, thus, absolutely essential for the plaintiffs to establish the existence of a public trust for invoking the provisions of Section 92 of the Civil Procedure Code. In order to prove the existence of such a trust, the plaintiffs were required to lead evidence of dedication or creation of a trust for religious and charitable purposes. In case no evidence is coming forward that the persons who at some point of time were the owners and divested themselves of their right, title and interest and dedicated the property for public religious trust, this Court wili not come to aid the plaintiffs. The dedication can be assumed and presumed from the long user of the property and the manner in which the public at large has been dealing with it as a matter of right. 12. It is too well known that in the case of a public trust of religious and charitable nature, it is the public at large who is the beneficiary. If it is found on appreciation of evidence that the person who is in the control and management of the affairs of the temple and its property has been exercising his right in stopping the general public, it would, at best, be a private trust. 13. In order to further invoke the provisions of Section 92 of the Civil Procedure Code, a clear case has to be established by the plaintiffs that besides being a public trust, there has been a breach for which the Mohatmim, Manager, Mahant, Gandhi for the time being incharge of the temple and its property, is responsible. 14. As already said above, public user of a temple for a long period without any objection is by itself a strong indication for holding that it is a public trust created for religious and charitable purposes. 15. It is further a settled proposition that in the case of a public trust, the Court has to examine as to whether the beneficial interest is vested in an uncertain and unfluctuated body of individuals and further whether the trust is of a permanent character. The only distinguishing feature between a private and public trust is that in the case of a private trust the beneficiaries are a group of individuals or members of the family whereas in the case of a public trust, it is the genera! public or a class thereof. The only distinguishing feature between a private and public trust is that in the case of a private trust the beneficiaries are a group of individuals or members of the family whereas in the case of a public trust, it is the genera! public or a class thereof. Where the instrument of dedication is not available, the Court has to draw inferences from attending facts and circumstances. 16. Admittedly, in the present case there is no instrument of dedication by the alleged owners, i.e. Shadi Ram and Kalu Ram. No effort has been made by the plaintiffs even to show that these persons held some property and then divested themselves from its right, title and interest where after a public trust came to be established. The evidence referred to by the learned Counsel is too weak to be accepted for the purposes of the establishment of a public trust. We have gone through the statements of these witnesses. Their statements do not inspire confidence besides being vague, indefinite any beyond the pleadings. 17. Evidence has further come on record that a committee was formed for the purpose of management of the temple and its properties. PW-2 and PW-4 are said to be its members. Both of them have not uttered a word as to how the accounts of the temple and its properties were being maintained and how the income was utilised. Simply because there is an idol of Lord Krishna and Radha would by itself not be enough to hold that the temple in question was dedicated for the purposes of public trust of religious and charitable nature. Similarly, a donation made by Ram Prashad at a much later stage would also not be enough to hold the institution to be a public trust. 18. The matter can be examined from another angle also. Simply because the Manager, Mohatmim has not stopped worshippers from coming to the temple and offering the prayers would not clothe the institution with the status of a public trust. The question in such a situation to be seen would be whether the public has an access to the institution as a matter of right or the person in the management and control has the right to stop the general public from coming over there. The question in such a situation to be seen would be whether the public has an access to the institution as a matter of right or the person in the management and control has the right to stop the general public from coming over there. It has come in evidence that the Defendant has completely stopped the visiting of the general public in the temple and is claiming it to be a private trust to be used by the members of the family only. 19. Whenever a public trust is created, a scheme is always formulated as to how the management and control would continue in the times to come and by whom. The provision of the Pujari has to be made or in case of succession of the Mahant, it has to be from Guru to Chela and evidence has to be placed on record to that effect. Not a single piece of evidence in this respect has been pointed out from the side of the plaintiffs. 20. Our attention has been brought by the learned Counsel for the Defendant to an order having been passed by the Financial Commissioner which is Ext. D-3 at page 161 of the record. This order relates back to February 25, 1969. The dispute was between one Sumer Chand and Ram Nath, Defendant No. 1 in the present case. The matter had arisen in appeal against the order dated June 9,1967 passed by the Commissioner, Himachal Pradesh. After examining the history of the temple and the record, it was found that the temple was a private one and there was no authority whatsoever under which the Revenue Officer could interfere with its management. 21. Another circumstance that goes against the plaintiffs is that as per entries existing in the revenue record, the land is assessed to revenue. It is not denied that the property is situated and at one point of time was being administered by the Sirmour Darbar. We have seen in a number of cases that where there existed a public trust, land revenue was always exempted. 22. We further find on record the judgment Ext. PD Sumer Chand, Defendant No. 2 had filed a suit against Defendant No. 1, Ram Nath claiming himself to be the Mohatmim of Mandir Thakurdwara. We have seen in a number of cases that where there existed a public trust, land revenue was always exempted. 22. We further find on record the judgment Ext. PD Sumer Chand, Defendant No. 2 had filed a suit against Defendant No. 1, Ram Nath claiming himself to be the Mohatmim of Mandir Thakurdwara. From the reading of the judgment in that case, we find that the trial Court had the occasion to visit the spot and observations have been made in the judgment that the Defendant has taken great pains in making the place a beauty spot. The place is said to be known as Shanti Sangam and there are installed idols of Jesus Christ, Lord Budha, two embarrasing Muslims and Shankracharya in a very artistic and natural surroundings. We would, thus, have no hesitation in holding that it is a cosmopolitan type of institution. We are unable to lay our hands on any piece of evidence from the record from where the creation of a public trust can be made out either at the inception or in the years following. 23. In view of what has been said above, the appeal does not call for any interference by this Court. The appeal as well as the cross-objections are ordered to be dismissed. There shall, however, be no order as to costs. Appeal dismissed.