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2008 DIGILAW 507 (MP)

Gayaprasad v. State of M. P.

2008-03-31

ABHAY GOHIL

body2008
JUDGMENT Gobil, J. -- 1. This second appeal filed by the appellants-plaintiffs was admitted on 27.4.1998 on the following substantial question of law : "(a) Whether the first appellate Court has gone wrong in interpreting the material document Ex. P-3 and whether wrong interpretation has resulted in the decree liable to be dislodged? (b) Whether the first appellate Court has committed an error of law in dislodging and demolishing the judgment and decree passed by the trial Court contrary to the principles of law laid down in AIR 1974 SC 405 (Baburao Bagaji Karemore and others v. Govind and others)?" 2. The brief facts of the case are that plaintiffs filed a suit for declaration of title and permanent injunction against the respondent-State, stating therein that suit land bearing survey No.1 admeasuring 6.584 hectare, 2 admeasuring 0.086 hectare, 3 admeasuring 1.497 hectare and 2 admeasuring 6.929 hectare, total area 15.982 hectare, situated in village Barda, Tahsil Khategaon, on which temple of Shri Krishna is situated, was given to his father Kaluram and Gotulal by the then Zamindar of Chuhumat as a gift, which was free from land revenue, on the condition that he will perform Pooja-Archana of the temple. Since then plaintiffs are in possession and enjoying the land as Bhumi Swami. They have acquired the rights in the property under the provisions of section 158 of M.P. Land Revenue Code and they have also become Bhumi Swami on the basis of their adverse possession, but without giving any notice Tahsildar of Khategaon has recorded the entry in the Khasra and land record and has mentioned the name of Collector as manager and the land is being auctioned to give it on Patta. 3. In the suit, written statement was filed by the respondent-State and it was stated that the land was not given as a gift but it is recorded in the name of deity and status of the plaintiffs is as of Pujari. The learned tiral Court after considering the plaintiff's evidence held that the aforesaid land was given by the then Zarnindar to the forefather of the plaintiffs, they are in possession and paying the land revenue. Since no notice was given to them, therefore, entering the name of Collector in the land record without any notice is illegal and decreed the suit vide judgment dated 12.1.1993 in favour of plaintiffs. Since no notice was given to them, therefore, entering the name of Collector in the land record without any notice is illegal and decreed the suit vide judgment dated 12.1.1993 in favour of plaintiffs. Against which State has filed first appeal. The learned first appellate Court vide judgment dated 4.2.1997 set aside the judgment of the trial Court and held that in the documents Ex. P-1 and P-2, land is recorded in the name of deity Shri Ram Mandir through Pujari Gaya Prasad and Ex. P-3 is a copy of Danpatra in which it has been mentioned that he has given the land for the temple and income of the land shall be used for performing Pooja-Archana and for celebrating religious festivals and Pujaris Kalurarn and Gotulal will manage the land. They will cultivate, keep it in their possession and also consume the income. Considering the provisions of section 158 of M.P. Land Revenue Code, lower appellate Court found that the land was gifted to the temple and Pujaris were appointed as trustees and right was also given that they will be entitled to consume the income of the temple and set aside the judgment and decree granted by the trial Court and also upheld the action of the Tahsildar in recording the name of the Collector as manager. Against which this second appeal has been filed by the appellants-plaintiffs which was admitted on the aforesaid substantial question of law. 4. I have heard Shri B.I. Mehta, learned counsel, appearing for the appellants and Shri Lokesh Bhatnagar, learned Government Advocate, appearing for respondent-State. 5. Shri Mehta, criticized the judgment passed by lower appellate Court and submitted that the lower appellate Court has totally overlooked the document Ex. P-3 which is copy of the 'Will' and has also overlooked this fact that the revenue officers before recording the name of Collector as manager of the temple in revenue record, has not given any opportunity to the appellants. He placed reliance on an unreported Division Bench decision in case of State of Madhya Pradesh v. Ghanshyam Das and others, reported in 1999 RN 25 and a decision of Division Bench in the case of State of Madhya Pradesh and others v. Mandir Shri Khande Rao, reported in 1999 RN 392. 6. He placed reliance on an unreported Division Bench decision in case of State of Madhya Pradesh v. Ghanshyam Das and others, reported in 1999 RN 25 and a decision of Division Bench in the case of State of Madhya Pradesh and others v. Mandir Shri Khande Rao, reported in 1999 RN 392. 6. Per contra Shri Bhatnagar, learned Government Advocate placed reliance on a decision in the case of Thayarommal (dead) by L.R. v. Kanakammal and others, reported in (2005) 1 SCC 457 and also on a decision in the case of Kalanka Devi Samsthan v. The Maharashtra Revenue Tribunal and others, reported in AIR 1970 SC 439 . 7. Having heard the learned counsel for the parties, it is true that in the document Ex. P-3 which is gift deed, it has clearly been mentioned that the land is gifted and entrusted to deity and Kaluram and Gotulal were appointed as trustees and rights have been given to them to cultivate the land, to give it to others for cultivation and also to use and consume the income, therefore, it is also true that up to some extent the findings recorded by the lower appellate Court are not contrary to the law. On the basis of document and oral evidence on record, it can be safely held that the land is given primarily to the deity for the purpose of Pooja-Archana and Kaluram and Gotulal were appointed as Pujaris and they were also given rights to manage the possession over the land. In the document Ex. P-l which is Khasra entry pertaining to the year 1978-79 and Ex. P-2 which is Khasra entry pertaining to the year 1975 to 1979 land is recorded in the name of Shri Ram Mandir through Pujari Gaya Prasad, therefore, it is clear that in the land, appellants are having limited right of Pooja-Archana and to use some part of the income of the land for their own purpose. In the case of Thayarammal (supra) it is held by the Supreme Court .as under : "16. A religious endowment does not create title in respect of the property dedicated in anybody's favour. A property dedicated for religious or charitable purpose for which the owner of the property or the donor has indicated no administrator or manager becomes res nullius which the learned author in the book (supra) explains as property belonging to nobody. A religious endowment does not create title in respect of the property dedicated in anybody's favour. A property dedicated for religious or charitable purpose for which the owner of the property or the donor has indicated no administrator or manager becomes res nullius which the learned author in the book (supra) explains as property belonging to nobody. Such as property dedicated for general public use is itself raised to the category of a juristic person. Learned author at P-35 of his commentary explains how such a property vests in the property itself as a juristic person. In Manohar Ganesh Tambekar v. Laksmiram Govindram it is held that : "The Hindu law, like the Roman law and those derived from it, recognises, not only corporate bodies with rights of property vested in the corporation apart from its individual members, but also the juridical persons or subjects called foundations" The religious institutions like mutts and other establishments obviously answer to the description of foundations in Roman law. The idea is the same, namely, when property is dedicated for a particular purpose, the property itself upon which the purpose is impressed, is raised to the category of a juristic person so that the property which is dedicated would vest in the person so created. And so it has been held in Krishna Singh v. Mathura Ahir that a mutt is under the Hindu law a juristic person in the same manner as a temple where an idol is installed". 8. In case of Kalanka Devi Samsthan (supra), Supreme Court has held that when property is given absolutely for the worship of an idol it vests in the idol itself as a juristic person. The properties of the trust in law vest in the trustee whereas in the case of an idol or a Samsthan they do not vest in the manager or the Shebait. It is the deity or the Samsthan which owns and holds the properties. It is only the possession and the management which vest in the manager. When the land is donated to the deity and recorded in the name of Mandir and admittedly when idol is capable of holding the property in the same way as a natural person then certainly property belongs to idol who is having judicial status with the power of suing and being sued. 9. When the land is donated to the deity and recorded in the name of Mandir and admittedly when idol is capable of holding the property in the same way as a natural person then certainly property belongs to idol who is having judicial status with the power of suing and being sued. 9. In LPA No. 33/94 (Shrikrishna Ramcharan Brahmin v. State of MP. and others), decided on 27.7.1995, the Division Bench has held that by an executive order the name of the Collector can not be recorded as manager and name of Pujari cannot be removed and those orders were quashed. 10. In case of Ghanshyam Das (supra), the Division Bench of this Court held that Pujari is not Maurusi Kashtkar. If the land is Muafi land, Pujari had no right of Maurusi Kashtkar. In this case the rights of Pujaris were considered and it was held that Pujari is having limited right to perform Pooja-Archana. He can also cultivate the land or get it cultivated through servants but certainly Pujari has no right to alienate the property of the temple. It was further held that Pujari can be removed if he does not render proper service and the right of inheritance of Pujari is subject to competence to work as Pujari. It is not automatic. If Pujari is not capable to work, he can be removed. No Pujari or trustees or manager can claim the title of the religious property, the property always belongs to temple i.e. deity. The Division Bench also considered the decision in the case of Rameshchandra v. Janki Ballabhji, AIR 1970 SC 532 , in which it was held that Pujari claiming proprietary rights amounts to mismanagement and is not fit to remain in possession or to continue as Pujari. It was further held that the executive instruction issued by the Government is in the interest of the deity and to avoid wastage or misuse of the property of the temple. Even if the name of Pujari is recorded in Column No. 12 of the Khasra, he will not be owner but will continue as Pujari and it will not affect the rights of Pujari so long as he is performing his functions properly and cultivating the land or getting the land cultivated through servants. Even if the name of Pujari is recorded in Column No. 12 of the Khasra, he will not be owner but will continue as Pujari and it will not affect the rights of Pujari so long as he is performing his functions properly and cultivating the land or getting the land cultivated through servants. It was further held that the Government is always having right to issue directions or preparing the norms for preserving the property of deity. In case of Mandir Shri Khande Rao (supra), Division Bench has held that the agricultural holdings belonging to deity, State cannot order auction, even if the conditions of this regulation are not satisfied. The agricultural holdings vesting in deity-State should fame rules/regulations for proper management of such property in the interest of deity and public. 11. I have considered the submission made by the learned counsel for the parties, in the background of aforesaid factual and legal aspect of the matter. It is true that to some extent the judgments of both the Courts below are also not correct. The trial Court has committed an illegality in absolutely decreeing the suit in toto without considering the various legal aspects of the matter. The lower appellate Court has also not considered the aforesaid decisions as well as the gift deed executed by owner of the land in favour of deity. In case of Sadashiv Giri and others v. Commissioner, Ujjain and others, reported in 1985 RN 317 and Ganesh Giri Pujari v. Commissioner, Gwalior and others, reported in 1994 RN 128, Division Bench has held that if the private temple is not covered by the provisions of Public Trust Act, the person claiming bhumiswami rights over the land belonging to a public temple, cannot be evicted without giving an opportunity of hearing, even if Government alleges him to be trespasser. Therefore, in this case Division Bench has held that notice is necessary before taking action. In the case of Ganesh Giri (supra) Court has held that the position of Pujari is as of manager of the temple under the control of Aukaf Department, Muafi land is unoccupied land and he also cannot be dispossessed by directing auction without affording opportunity of hearing to him. The reliance is placed on the decision reported in 1992 RN 194 = AIR 1992 SC 1239 (Mst. Kanchaniya and others v. Shivram and others). 12. The reliance is placed on the decision reported in 1992 RN 194 = AIR 1992 SC 1239 (Mst. Kanchaniya and others v. Shivram and others). 12. At this stage Shri B.I. Mehta, learned counsel for the appellants submits that he has no objection if the direction is given to the State to register a public trust over the land. He also submits that Commissioner and President of Aukaf Board Trust has issued the circular dated 7.8.1995, in which they have given the right upto 10 acres to the Pujari and certain policy decisions were also taken subsequently by issuing a direction separately by the Commissioner, Ujjain dated 25.6.1979 and by the State Government, Department of Religious Trust and Dhannasva Vibhag to follow executive instructions and supervise the land. 13. Learned counsel for the parties have not produced any statutory rules framed by the State Government uptil now in this matter whereas thousand of cases are pending in the Court in which the rights of Pujaris are involved or Pujaris are claiming rights over the temple property. It is also experienced that the property which is recorded in the name of deity is not being maintained properly. The Division Bench in case of Ghanshyam Das (supra) has held that the Government in the interest of deity and to avoid wastage and misuse of the property of the temple can issue executive instructions and may frame rules. 14. In this case a suggestion has come from the side of appellants that to remove executive burden of the Collector, to look after the management of all these private temples, State Government should also consider for creation of public trust over the private temple properties situated in the State of Madhya Pradesh and in the name of deity, which can be managed by the devotees and Government may also keep their representative in the trust and temple property may be regulated by the Trust. 15. In this case, it is clear that the property is recorded in the name of deity, as such, the action of Collector upto that extent was justified. In the light of the aforesaid discussion, I do not think that any interference is called for in the judgment of the lower appellate Court. 15. In this case, it is clear that the property is recorded in the name of deity, as such, the action of Collector upto that extent was justified. In the light of the aforesaid discussion, I do not think that any interference is called for in the judgment of the lower appellate Court. So far as the rights of Pujaris are concerned, since in the gift deed rights have been given to the Pujaris to use the property, it is held that land shall be managed by Pujari under supervision of the Collector and income of the property of deity shall be spent first on Pooja-Archana of the deity and thereafter, some part of the money shall be spent on the maintenance and development of the temple and thereafter, Collector will ensure that at least 25% of the income should be given to the Pujari or his heirs, so that as per document Ex. P-3 Pujari may also get some money for his maintenance and for maintenance of his family as was the desire of the executor of the Will (Ex. P-3). However, it is made clear that Pujari will not have any ownership rights in the property and will also have no right to alienate or to transfer the property but will get fruits of the income. Government is also directed to consider the question of registration of public trust on the property of the temple for its proper management in future. 16. With the aforesaid direction, this appeal is partly allowed and is partly dismissed. Parties shall bear their own costs. Appeal partly allowed.