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2003 DIGILAW 195 (PNJ)

Mandir Thakar Dwara, Lalru v. Mehar Singh

2003-01-31

R.L.ANAND

body2003
JUDGMENT R.L. Anand. J. (Oral) - Unsuccessful plaintiff Mandir Thakar Dwara, Lalru has filed the present regular second appeal and it has been directed against the judgment and decree dated 28.7.2000 passed by the learned Addl. District Judge, Patiala, who allowed the appeal of the defendant-respondent Mehar Singh by setting aside the judgment and decree dated 10.3.1997 passed by the learned Civil Judge (Junior Division), Rajpura, who decreed the suit of the plaintiff by holding that the lease deed dated 31.3.1981 executed by Tulsi Dass Chela Keso Ram in favour of defendant-respondent vide Wasika No. 1796, Bahi No. 1, is illegal, null and void, without consideration and not for the benefit of the estate of plaintiff Mandir Thakar Dwara and a decree for possession of the suit land was passed in favour of the plaintiff against the defendant. 2. The pleadings of the parties can be summarised in the following manner :- 3. Mandir Thakar Dwara, Lalru through Amar Dass Chela Tulsi Dass Chela Keso Ram, Mohtmim, Mandir Thakar Dwara, Lalru filed a suit for declaration and possession to the effect that the lease deed dated 31.3.1981 executed by Tulsi Dass Chela Keso Ram with regard to the suit land described in the heading of the plaint, in favour of Mehar Singh was illegal, null and void, without consideration and is not binding on the rights of the deity and the consequential relief of possession was also asked for against the defendant. The case set up by the plaintiff was that it is the owner of the suit land. Amar Dass Chela Tulsi Dass is its Mohtmim and he manages its property. Said Amar Dass became the Mohtmim about eight years (ago) on the death of Tulsi Dass, who was the previous Mohtmim. Tulsi Dass executed a registered lease deed dated 31.3.1981 leasing out the suit land measuring 21 Bighas 7 Biswas for 99 years to defendant and the suit land could not be leased out for a sum of Rs. 5,000/- per annum. Tulsi Dass and defendant colluded with each other in executing the lease deed for 99 years. The plaintiff requested the defendant to treat the lease deed dated 31.3.1981 null and void and to deliver the possession of the suit land to it but all in vain. 4. The notice of the suit was given to the defendant. 5,000/- per annum. Tulsi Dass and defendant colluded with each other in executing the lease deed for 99 years. The plaintiff requested the defendant to treat the lease deed dated 31.3.1981 null and void and to deliver the possession of the suit land to it but all in vain. 4. The notice of the suit was given to the defendant. It was contested by him on the ground that plaintiff is not Chela of Tulsi Dass and is also not the Mohtmim of Mandir Thakar Dwara, Lalru. The defendant, however, admits that the suit land is owned by Mandir Thakar Dwara, Lalru. It was also contended by him that the plaintiff is not managing the affairs of Mandir Thakar Dwara, Lalru. He did not become the Mohtmim of Thakar Dwara on the death of Tulsi Dass. Tulsi Dass vide registered lease deed dated 31.3.1981 gave out the suit land to the defendant at the rate of Rs. 25,000/- per annum for 99 years and that the lease deed is legal, correct and valid. It was denied that Tulsi Dass was not competent to lease out the suit land to the defendant. It was prayed by the defendant that the suit of the plaintiff is also not properly valued for the purpose of court fee and jurisdiction and the same may be dismissed. 5. The plaintiff filed replication to the written statement of the defendant reiterating the averments of the plaint by denying those of the written statement and from the pleadings of the parties the following issues were framed :- "1. Whether plaintiff is Chela of Tulsi Dass as alleged ? OPP 2. Whether plaintiff became the Mohtmim of Thakar Dwara on death of Tulsi Dass and as such has locus standi to file the present suit ? OPP 3. Whether lease deed dated 31.3.1981 is illegal, null and void as alleged ? OPP 4. Whether the suit in the present form without filing in representative capacity is maintainable ? OPP 5. Whether the suit has been properly valued for the purpose of court fee and jurisdiction ? OPP 6. Relief." On 23.8.1995 the following additional issue was also framed :- "5-A. Whether the suit of the plaintiff is time barred ? OPD" The parties led oral and documentary evidence in support of their respective cases. OPP 5. Whether the suit has been properly valued for the purpose of court fee and jurisdiction ? OPP 6. Relief." On 23.8.1995 the following additional issue was also framed :- "5-A. Whether the suit of the plaintiff is time barred ? OPD" The parties led oral and documentary evidence in support of their respective cases. The learned trial court decided all the issues in favour of the plaintiff and finally decreed the suit vide judgment and decree dated 10.3.1997. 6. The defendant filed the first appeal before the learned Addl. District Judge, who affirmed the findings of the trial Court on all the issues except issues No. 5 and 5-A and finally came to the conclusion that the suit of the plaintiff was time barred. It allowed the appeal of the defendant vide judgment and decree dated 28.7.2000 and set aside the judgment and decree of the trial court and in this manner the suit of the plaintiff-appellant was dismissed. This time the plaintiff is aggrieved by the judgment and decree of the first Appellate Court and has filed the present regular second appeal. 7. I have heard the learned counsel for the parties and with their assistance have gone through the record of this case. 8. First of all, I will take up issue No. 5-A. The learned first Appellate Court while deciding this issue has observed as follows in para No. 21 of the impugned judgment :- "21. The next question that requires consideration is as to whether the suit filed by the plaintiff was time barred. In the present case the plaintiff has challenged the lease deed dated 31st March, 1981. The suit has, however, been filed on 11th May, 1990. The suit had to be filed within three years as the plaintiff has challenged the lease deed dated 31sat March, 1981. The primary relief claimed by the plaintiff is for cancellation of the lease deed and the suit had been filed beyond the period of limitation. The trial Court had erred in holding that the suit of the plaintiff was not time barred. Accordingly, the finding of the trial Court on issue No. 5-A is reversed." 9. The learned counsel appearing on behalf of the appellant has vehemently assailed the finding of the first Appellate court on issue No. 5-A and submitted that an erroneous approach has been taken by the first Appellate Court. Accordingly, the finding of the trial Court on issue No. 5-A is reversed." 9. The learned counsel appearing on behalf of the appellant has vehemently assailed the finding of the first Appellate court on issue No. 5-A and submitted that an erroneous approach has been taken by the first Appellate Court. He submitted that it is the admitted case of the defendant that the suit land belongs to Mandir Thakar Dwara. Meaning thereby that it vested with the deity. The first Appellate court has also affirmed the finding of the trial Court that Amar Dass can file the suit on behalf of the deity. The learned counsel also submitted that it has been held by the courts below that Tulsi Dass could not lease out the property of the deity for a paltry consideration of Rs. 25,000/- for a period of 99 years. It is the case of the defendant that the amount was received by Tulsi Dass not for the benefit of the deity but for performing the marriages of his daughters. To perform the marriages of his daughter is the liability of Tulsi Dass in his individual capacity and not of the deity and that of the Mandir. By executing the lease deed in favour of the defendant which is virtually a sale for a paltry consideration of Rs. 25,000/- for a huge chunk of land is totally illegal and against the interest of the deity whose position is more or less like a minor. With the execution of the lease deed in an illegal manner, a cloud has been cast on the ownership rights of the deity and so long that cloud is not removed by a declaration, it will be open to the plaintiff to file a suit and such a suit cannot be held to be time barred by any stretch of imagination. On the contrary, it was contended that as the lease deed was executed in 1981 and the suit has been filed beyond three years, therefore, it is time barred. 10. I do not subscribe to the argument raised by the learned counsel for the respondent. The lease deed has been held to be illegal. The consideration of Rs. 25,000/- was received by Tulsi Dass in order to perform the marriages of his daughters. The deity has no obligation to perform the marriages of the daughters of Tulsi Dass. 10. I do not subscribe to the argument raised by the learned counsel for the respondent. The lease deed has been held to be illegal. The consideration of Rs. 25,000/- was received by Tulsi Dass in order to perform the marriages of his daughters. The deity has no obligation to perform the marriages of the daughters of Tulsi Dass. This was not an act of good management on the part of Tulsi Dass. He virtually leased out the interests of the deity and in these circumstances a cloud on the proprietary rights of the deity has been cast by Tulsi Dass which furnishes a successive cause of action so long as the lease deed is in existence. Therefore, the suit of the plaintiff could not be held to be time barred as rightly observed by the learned trial Court under issue No. 5-A. Moreover, the relief of possession has also been sought in the suit. This relief flows from the declaration. The suit was instituted on 10.5.1990 on the basis of the title also by seeking declaration that the lease deed is not binding on the rights of the deity. Therefore, such a suit could be instituted within 12 years from the date of the execution of the sale deed. Hence I reverse the findings of the first Appellate Court and restore that of the trial Court on issue No. 5-A and hold that the suit of the plaintiff is within limitation. 11. The learned first Appellate Court also decided issue No. 5 against the plaintiff by holding that the plaintiff has only paid the court fee by treating the suit for declaration. He has not paid court fee on the market value of the land and, therefore, the suit was not properly valued for the purpose of court fee and jurisdiction. The learned counsel appearing on behalf of the appellant submitted two-fold contention. Firstly, that the suit of the plaintiff was virtually a suit for declaration. The relief of possession was a consequential one. The court fee has been rightly paid. Secondly, he submitted that at any rate the suit of the plaintiff could not be dismissed on the ground that the suit has not been properly valued for the purpose of court fee and jurisdiction. The first Appellate Court at the most could ask further court fee by determining the marked value of the land. Secondly, he submitted that at any rate the suit of the plaintiff could not be dismissed on the ground that the suit has not been properly valued for the purpose of court fee and jurisdiction. The first Appellate Court at the most could ask further court fee by determining the marked value of the land. By adopting a cut short method the first Appellate Court has fell in error. On the contrary, it was submitted by the learned counsel for the respondent that the ad valorem court fee was liable to be paid by the plaintiff on the lease consideration. I am of the opinion that apart from the suit for declaration, it was obligatory on the part of the plaintiff to pay the court fee on the lease amount of Rs. 25,000/- because relief of possession has also been sought by the plaintiff. Be that as it may, now the plaintiff can be called to pay the court fee on the suit. 12. In these circumstances, this appeal is allowed and the impugned judgment and decree is hereby set aside and the suit of the plaintiff is hereby decreed as prayed for with the condition that the plaintiff shall pay ad valorem Court fee treating the jurisdiction value of the suit at Rs. 25,000/- he shall pay the court fee at two stages --- first, for the suit; and second, for the regular second appeal. The necessary court fee shall be deposited in the Registry of the High Court within three months from today, failing which the suit of the plaintiff shall be deemed to have been dismissed for all intents and purposes. On payment of the court fee, the suit shall be deemed to have been decreed, as stated above and decree-sheet shall be drawn thereafter by the Registry. Appeal allowed.