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2000 DIGILAW 823 (PNJ)

Din Dial v. Jain Bans

2000-07-31

R.L.ANAND

body2000
JUDGMENT R.L. Anand, J. - Unsuccessful plaintiffs have filed the present Regular First Appeal and it has been directed against the judgment and decree dated 1.12.1978, passed by the Court of Senior Sub Judge, Hoshiarpur, who dismissed the suit of the plaintiffs-appellants as prayed for. 2. Brief facts of the case are that the present appellants filed the present suit under Section 92 of the Code of Civil Procedure praying for the reliefs mentioned below :- (a) Defendant No. 1 be removed as trustee of Shiv Mandir Dholbaha, and the property that vests in the Shiv Mandir; (b) A new trustee be appointed in place of defendant No. 1; (c) Defendant No. 1 be directed to render accounts of the income of the trust property and to hand over the income of the trust; (d) Defendant Nos. 1, 2 to 5 be directed to deliver possession of the trust property held by them to the new trustee that may be appointed by the learned counsel; and (e) A scheme be settled for the management and control of the trust property so that the property and its income may be realised, and used for charitable and religious purposes. 3. It may be mentioned here that the suit was instituted at the first instance in the Court of District Judge, Hoshiarpur on 9.9.1977. After granting necessary permission under Section 92 of the Code of Civil Procedure, the learned District Judge transferred the case for disposal to the Court of Senior Sub Judge. 4. The case set up by the plaintiffs before the trial Court was that they are the residents of village Dholbaha, Tehsil and District Hoshiarpur and like other lacs of persons are worshippers and Sewaks of temple known as Shiv Mandir, situated in the abadi of village Dholbaha. The aforesaid Shiv Mandir is very old and is of great historical importance. The temple was constructed a number of centuries ago and the rulers for the time being and the other worshippers of the deity in the temple, have been donating land and immovable property to the Mandir for the purpose of charitable and religious nature and the property vests in the temple and the income from the land and the property to be used for religious and charitable purposes. Mahant Kurkshetar Gir was the Mahant and Manager of the Shiv Mandir in question and the entire property owned by Mandir was managed by him as trustee. He used the income for religious and charitable purpose. After the death of Mahant Kurkshetar Gir in the year 1966, a dispute arose between Jai Bans defendant No. 1 and Dev Gir defendant No. 3. Both of them claimed to be Mahants and trustees of the temple. There was litigation between them and unfortunately neither of them cared to manage the temple and the property owned by the Mandir for religious and charitable purposes. Defendant No. 1 claims to be lawful Mahant and trustee of the property attached to it. He does not reside at village Dholbaha and is not managing the property of the Mandir in a faithful manner. He has been getting the income of the land owned by the Mandir but is not utilising the same for religious and charitable purposes. He uses the income for his own purpose. Defendant No. 1 has now started claiming that the entire property attached to the Mandir is his property and he is entitled as owner to use the income for his own purpose and to alienate the property in any manner he likes. He has appointed defendant No. 2 as his Mukhtiar-e-am. So Much so defendant No. 1 has sold 21 Kanals 19 marlas of land bearing khasra number 3252, to defendant Nos. 4 and 5 and has put the vendees in possession of the same. These sales are clearly unlawful and void as defendant No. 1 has no authority in law on any ground to effect the sales which are clearly without consideration and necessity. The Mandir is not bound by the said sales as the land vests in the Mandir. The defendant No. 1 has committed breach of trust and it is necessary for the purposes of the trust to file the suit under Section 92 of the Code of Civil Procedure Code. In these circumstances, it has become necessary to remove defendant No. 1 as trustee and appoint new trustee to vest the land sold to defendants Nos. 4 and 5. 5. The suit was contested by defendants No. 1, 2, 4 and 5. According to defendants No. 1 and 2, the plaintiffs are the worshippers and they have no locus standi to file the suit. 4 and 5. 5. The suit was contested by defendants No. 1, 2, 4 and 5. According to defendants No. 1 and 2, the plaintiffs are the worshippers and they have no locus standi to file the suit. In regard to the landed property, the defence taken up by the defendants is that no land or other property was ever donated by worshipper to the Shiv Mandir but was given to the person holding the office of Mahant of Shiv Mandir in their individual capacity due to their eminence and not for any charitable or religious purposes. These defendants also pleaded that as per Civil Court decisions and Revenue Court decisions, defendant No. 1 was held to be lawful Mahant of Shiv Mandir and owner of the property in dispute as successor of Mahant Kurkshetar Gir. Defendant No. 1 is not the trustee of the suit property. He is managing the property as an owner being successor of Mahant Kurkshetar Gir. The sale made by him in favour of defendants No. 4 and 5 has also been defended on the ground that this sale was for consideration and for necessity. Defendant No. 1 required money to fight the litigation which had been forced upon him. A preliminary objection was also raised by these defendants that the leave granted by the District Judge was improper and that the suit under Section 92 of the Code of Civil Procedure was not legally maintainable and that the plaintiffs have no locus standi to file the suit. Defendants No. 4 and 5 are the bona fide purchasers for consideration and without notice. 6. Separate written statement was filed by defendants No. 4 and 5 and they stated that they are bona fide purchasers for value and without notice. 7. The above pleadings of the parties gave rise to the following issues :- 1. Whether the permission granted by the learned District Judge to the plaintiffs to file this suit and the entrustment of the suit to this Court by him is illegal or in valid ? OPD 2. Whether the plaintiffs have no locus standi to file the suit ? OPD 3. Whether the suit is bad for want of complete details of the property attached to the temple ? OPD 4. Whether the suit property is a trust property and of religious and charitable nature and is attached to the temple ? OPD 2. Whether the plaintiffs have no locus standi to file the suit ? OPD 3. Whether the suit is bad for want of complete details of the property attached to the temple ? OPD 4. Whether the suit property is a trust property and of religious and charitable nature and is attached to the temple ? OPD 5. Whether the sale of 21 Kanals 19 Marlas of land by Jai Bans defendant No. 1 to defendant No. 5 through defendant No. 4, was legal and valid ? If not what is its effect ? OPD 1 6. Whether the defendant No. 5 is a bona fide purchaser for value and to what effect ? OPD 7. Whether Jai Bans defendant No. 1 is duly appointed Mahant of the temple and can act as Manager of the property of the temple ? OPD 1 8. Whether defendant No. 1 is not discharging his duties properly as Mahant of the temple and Manager of the property attached to the temple and as such, is liable to be removed ? OPP 9. Relief. 8. Parties led evidence in support of their case and on the conclusion of the trial, the trial Court decided issue No. 1 against the defendant No. 1 and in favour of the plaintiffs. Issue No. 2 was also decided against the defendants and in favour of the plaintiffs and it was held that the plaintiffs had the locus standi to file the suit. Issue No. 3 was also decided against the defendants. Issue No. 4 is the material issue in this case which has been decided against the plaintiffs and it was held by the trial Court that the suit property is not the trust property meant for religious and charitable purposes nor it is attached with the temple. This issue was also decided against the plaintiffs and in favour of the defendants. Issues No. 5 and 6 were decided against the defendants. On issues No. 7 and 8, no finding was given by the trial Court in view of the finding given by the trial Court under Issue No. 4 and finally on the strength of the findings given under issue No. 4, the plaintiffs were non-suited. Hence the present appeal. 9. I have heard the learned counsel for the parties and with their assistance have gone through the record of this case. 10. Hence the present appeal. 9. I have heard the learned counsel for the parties and with their assistance have gone through the record of this case. 10. As I stated above that the present suit has been instituted by the plaintiffs under Section 92 of the Code of Civil Procedure. According to this Section, in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or reglious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situated to obtain a decree. 11. Thus, it is the first ingredient for a suit to be instituted under Section 92 that the plaintiff must allege a breach of any express or constructive trust and such trust must have been created for public purposes of a charitable or religious nature. If it is not established on the record that there was any trust created for public purposes or that there is any alleged breach of any express or constructive trust created for such purpose, the suit under Section 92 cannot be held to be maintainable nor it can ever succeed. The case set up by the plaintiffs before the trial Court was that a public trust was created for charitable and religious purposes and defendant No. 1 was holding the properties of the trust in the capacity of a trustee. The learned trial Court after considering the entire evidence, decided this issue against the plaintiffs for the reasons given in paras No. 13 to 20 of the judgment, which I would like to reproduce as under :- " 13. This is a suit filed by the plaintiffs for reliefs under Section 92, Civil Procedure Code, on the allegations that Shiv Mandir, situate in village Dholbaha, District Hoshiarpur, is a trust created for public purposes and defendant No. 1 has committed breach of the trust. This is a suit filed by the plaintiffs for reliefs under Section 92, Civil Procedure Code, on the allegations that Shiv Mandir, situate in village Dholbaha, District Hoshiarpur, is a trust created for public purposes and defendant No. 1 has committed breach of the trust. It may be stated at the outset that Section 92, Civil Procedure Code applies only a trust for public purposes. The expression "Public purposes" includes an object or aim in which the general interest of the community as opposed to particular interest of the individual is directly or widely concerned. It is essentially a question of fact in each case to determine whether the endowment is for public purposes of charitable or religious nature or it is a private endowment, though of religious or charitable nature. It has been held by the Honble Supreme Court in the case of Devki Nandan v. Murli Dhar, AIR 1957 Supreme Court 133, that the question whether a Thakardwara is a public endowment or a private one, is one of mixed law and fact. All the legal requisites essential for the constitution of a public charity must be established by strong and clear proof in order to enable the Court to declare whether the property is a public charity. A public trust must be proved by strong and clear evidence. Evidence of public worship alone would not be sufficient to justify a finding that a particular property has been dedicated to the public. The mere fact that the income of the property has for sometime been spent to support the Faqirs and visitors, is not sufficient to establish public trust in the absence of corroborative and clear evidence. It was held by the Privy Council in the case Pt. Parmanand v. Nihal Chand and another, AIR 1938 Privy Council 195, that - "To constitute a trust "created or existing for a public purpose of a charitable or religious nature" the author or authors of the trust must be ascertained, and the intention to create a trust must be indicated by words or acts with reasonable certainty, Moreover, the purpose of the trust, the trust property, and the beneficiaries must be indicated so as to enable the Court to administer the trust if required" 14. Coming to the facts of the present case, it may be stated that there is absolutely no evidence of dedication or endowment of property as trust by any one at any stage. There is no trace of any term or condition attached to the trust. Similarly, there is not an iota of evidence to show as to what was the purpose of trust when it was created. The plaintiffs have led absolutely no documentary evidence indicating any instance where any act by the Mahant might be deemed to be a breach of trust. The oral evidence led by the plaintiffs leads us nowhere. Achhar Singh plaintiff as PW1, Tulsi Ram PW2, Ragunath Singh PW3 and Laxman Puri PW4, expressed ignorance about the time of creation of the trust or the name of the person who donated the land or created the trust. There is no evidence to show as to far what purpose the income derived from the land by the successive Mahants was spent. The defendant No. 1 derives title from the previous Mahant Kurkshetar Gir. No contemporary of Kurkshetar Gir has come forward to say as to how he spent the income derived from the land and what he thought about the property in question. There is no material before me which may be a pointer towards the inference that Kurkshetar Gir held the property just as a Manager and the property was always considered to be a public trust. The plaintiffs and the witnesses examined by them are mere believers and worshippers of Mandir, according to their own version. They are not helpful at all in determining as to whether the property in question is a public trust or not. It is always for the plaintiffs to succeed on the strength of their own case. In the present case, the plaintiffs have failed to bring direct evidence or circumstantial evidence to show that the property in dispute is a public trust, of, religious and charitable nature. 15. On the other hand, the discoverable origin of the property shows that the Mahant for the time being had always been recorded as the owner of the property and the succession has always devolved from Guru to Chela. Ex.P.1 is the revenue excerpt prepared in the case. 15. On the other hand, the discoverable origin of the property shows that the Mahant for the time being had always been recorded as the owner of the property and the succession has always devolved from Guru to Chela. Ex.P.1 is the revenue excerpt prepared in the case. According to the revenue excerpt, Suraj Gir Chela Dogar Gir, was recorded as the owner of the property in the record of rights for the year 1884. After Suraj Gir, his chela Mangal Gir figured as the owner in possession of the property. Mangal Gir was succeeded by Sunder Gir who was recorded as the owner in possession of the property in the record of rights for the year 1893-94. Herein, Sunder Gir is recorded as the Chela of Mukand Gir. The learned counsel for the plaintiffs contended that the revenue entries record Sunder Gir as the Chela of Mukand Gir which means that the succession from Mangal Gir did not devolve upon his chela. The copy of pedigree table Ex.P.6 records Sunder Gir as the chela of Suraj Gir and Ilaichi Gir as the Chela of Dev Gir. The revenue excerpt further indicates that in the record of rights for the year 1915-16, Sunder Gir was shown as Chela of Suraj Gir. It was after Sunder Gir Chela Suraj Gir, that Ilaichi Gir Chela Dev Gir figured in the record of rights for the year 1927-28. According to the entries in the pedigree table Ex.P.6, Sunder Gir had no Chela. According to the general rule of succession among the Bairagis, the succession is from Guru to Chela, but if the last Mahant dies without leaving Chela, succession devolves upon the other line known as Gurbhais. The entries in the pedigree table will show that Ilaichi Gir was the Chela of Dev Gir, who was Gurbhai of Suraj Gir. According to the general rule of succession among the Bairagis, the succession is from Guru to Chela, but if the last Mahant dies without leaving Chela, succession devolves upon the other line known as Gurbhais. The entries in the pedigree table will show that Ilaichi Gir was the Chela of Dev Gir, who was Gurbhai of Suraj Gir. The succession from Guru to Chela means the devolution of the property from the last representative of the line of his Chela and when one talks of succession from one Chela on his death to another Chela, it is also to another Chela of the Guru, who is the last representative of the line, it only means that when the last representative of that particular line dies without leaving a Chela, or Chelas, or a Gurbhai, who could succeed to his estate and that line becomes extinct and one has not to go backwards in order to ascertain whether there is Chela of any Guru in that line or not surviving. (Vide AIR 1956 Supreme Court 192). The entries in the revenue record in the present case show that succession has always devolved from Guru to Chela. 16. It was held in "Pandit Parma Nand vs. Nihal Chand and another, AIR 1938 Privy Council 195, that the descent of a property from Guru to Chela does not warrant the presumption that it is religious property. 17. The learned counsel for the plaintiffs submitted that the entries in the revenue record showing the successive Mahants as owner-in-possession of the property do not mean that the property is the private property of the Mahant. In support of this argument, I was referred to Raghunath Dass v. Gajpat Rai and others, AIR 1934 Lahore 449. It was held in that case that - "The revenue authorities can only function through human agency. They cannot enter into any transaction with a legal entity like an idol installed in a Thakardwara. The name of the Mahant or trustee is, therefore, generally entered in the column of owner, so that the revenue authorities may have dealings with him in all those matters which concern the Thakardwara or the religious institution in question. Hence, the mere entry of the name of the Mahant in the column of owner does not prove that the property was his private and exclusive property." 18. The facts of that case were entirely different. Hence, the mere entry of the name of the Mahant in the column of owner does not prove that the property was his private and exclusive property." 18. The facts of that case were entirely different. In that case there was clear and abundant oral evidence that one Dhanna Ram who was originally an ordinary Zamindar became a Bairagi and built a modest Katch Thakardwara and later on Bhagwan Dass considerably improved the old Thakardwara and raised it to importance. It was also in clear evidence, which was believed, that the devotees endowed land for the benefit of the institution. Furthermore, in that case a written statement filed by Bhagwan Dass in an earlier litigation was also relied upon, wherein, he had made a clear admission that the land was attached to the Thakardwara and he was a mere Mahant and also that the land did not belong to him and was not his personal property. In the present case, there is complete lack of evidence to establish that the land was endowed by any person in favour of the Shiv Mandir. In the aforesaid authority the origin of the land was clearly traceable and there was plethora of other circumstances to prove that the land belonged to the Trust. In complete contrast to that, there is absolutely no evidence in the present case that the land was ever endowed in favour of the institution for many purpose. That being so, the entries in the revenue record cannot be easily ignored. 19. The defendant No. 1 has set up a will executed in his favour by his Guru Kurkshetar Gir. The defendant No. 1 has faced a lot of litigation against some other claimants. The mutation of inheritance was ultimately sanctioned in favour of the defendant No. 1, on the basis of the will in his favour by Kurkshetar Gir. A civil suit filed by one Hari Gir also ended in favour of the defendant. The certified copy of the judgment dated 4.1.1971 in that respect is Ex.D7. It will be seen that in that case Hari Gir also set up a Will in his favour alleged to have been executed by Kurkshetar Gir. The defendant No. 1 himself propounded the will as a defence in that case. The will put up by Hari Gir was rejected, and his suit was dismissed. It will be seen that in that case Hari Gir also set up a Will in his favour alleged to have been executed by Kurkshetar Gir. The defendant No. 1 himself propounded the will as a defence in that case. The will put up by Hari Gir was rejected, and his suit was dismissed. It will be noticed that the will propounded by the defendant has already stood the hard test of judicial scrutiny. The judgment in that case is relevant under Section 13 of the Evidence Act. The defendant No. 1 has been held by a competent Civil Court to be the lawful heir of Mahant Kurkshetar Gir, on the strength of a will. 20. In the light of these facts and circumstances it is held that the suit property is not a trust property of religious and charitable nature and is not proved to be attached to the Shiv temple. This issue is decided accordingly against the plaintiffs". 12. Now, it is to be seen as to whether there is any evidence on the record to show that any public trust was ever created at any point of time by the owners of the property or by the Manager of the property. It has also to be seen whether there are any circumstances which led to an inference that at any point of time any trust was created even by implication. 13. The first document which can be referred to is Ex. P.1, the excerpt, which was prepared in this case. The first entry of excerpt is of the year 1894 which shows that the name of Suraj Gir Chela Dogar Gir kom Faqir Sanyasi has been mentioned in the column of ownership. In the column of possession, his name again figures. After Suraj Gir, the other comes Mangal Gir Chela Mahant Suraj Gir both in column of owner and in possession. The other entries of 1915-16 again establish the ownership as well as possession of that of Sunder Gir or that of Aladin Gir. At no point of time it has ever been shown that Lord Shiva is deity or Shiv Mandir has been recorded as owner or in possession. Neither it has been shown from the old record which is upto the year of 1970-71, that any point of time a trust was created in favour of Lord Shiva by the original owners of the land. Neither it has been shown from the old record which is upto the year of 1970-71, that any point of time a trust was created in favour of Lord Shiva by the original owners of the land. Throughout the possession remains with one Chela or the other has been shown as owner and in possession of the property. 14. Faced with this difficulty, learned counsel for the appellant referred to some of the entries of the Kafiyat (remarks column) in the document Ex.P.1 and submitted that these Mahants had been obtaining Muafi with regard to the revenue because they had been looking after the affairs and property of the Mandir and, therefore, a reasonable inference should be drawn that a trust was created. 15. I am not in a position to accept the contention of Shri Mahajan. As stated above that there must be some evidence direct or circumstantial which may lend a strong inference about the creation of a trust and the appointment of a trustee or Manager. Rather the evidence is that the Mahantship of the Mandir devolved from Guru to Chela who always was recorded as owner or in possession of the property. Even in the subsequent Jamabandis, this very position stands. The learned counsel further submitted that much importance should not be given to the revenue entries because the name of the Mahant or trustee is invariably recorded in the revenue records as owner or in possession so that the people may be able to deal with them because deity cannot speak like a human person and cannot enter into transaction like ordinary human beings and somebody has to deal for the deity. In this regard reliance was placed on Raghunath Das v. Gajpat Rai and others, AIR 1934 Labore 449. This very judgment was also relied upon by the plaintiffs before the trial Court. In the cited case there was abundant evidence on the record to show that the owner became a Faqir and he constructed a Thakurdwara and thereafter, that Thakurdwara was improved. There was also evidence that the devotees gave the land for the benefits of the deity/institution but in the present case, the origin of the land is not traceable. In the cited case there was abundant evidence on the record to show that the owner became a Faqir and he constructed a Thakurdwara and thereafter, that Thakurdwara was improved. There was also evidence that the devotees gave the land for the benefits of the deity/institution but in the present case, the origin of the land is not traceable. It is not established that who was the original person whoever gave the land in favour of the deity or Thakurdwara so as to create a trust express or implied for religious or public purposes. Rather the evidence is that the Mahants had been treating the property as their own. Defendant No. 1 set up a will which was executed in his favour by his Guru Kurkshetar Gir and on the basis of that will the mutation was sanctioned in favour of defendant No. 1. This mutation was challenged in a civil suit which ended in favour of the defendant No. 1. Hari Gir who propounded a will in his favour, allegedly executed by Kurkshetar Gir, was disbelieved and the will propounded by defendant No. 1 was held to be valid one. Defendant No. 1 was held to be lawful heir of Mahant Kurkshetar Gir. 16. In this view of the matter, I do not see any illegality in the findings of the trial Court on issue No. 4. 17. No other issue was pressed before me. 18. Resultantly, I do not see any merit in this appeal and dismiss the same with no order as to costs. Appeal dismissed