Research › Search › Judgment

Allahabad High Court · body

2013 DIGILAW 316 (ALL)

Heera Lal Chippi & Others v. Pt. Hubblal & Others

2013-01-28

PRAKASH KRISHNA

body2013
Prakash Krishna, J.— The present appeal has been filed under section 96 of CPC by the plaintiffs of O.S. No.1 of 1988. The said suit was filed under section 92 CPC for removal of defendant no.1 Hublal from the post of de facto trustee of the property in dispute. The suit was instituted on the pleas inter alia that in a plot no. 2794 situate in Kasganj town (Etah) there is one temple known as 'Thakurji Gopalji Maharaj Cheepian' along with an Ahata, eight houses and thirty five shops. Gopalji Maharaj is the owner of the properties and the temple is popularly known as temple of Cheepian in Mohalla Mohan, Kasganj, District Etah. It was pleaded that the said temple is public and religious endowment. It was constructed by one Laxmandas Cheepi who had installed deity of Thakurji Maharaj. Sri Laxmandas endowed his entire property to the aforesaid temple which has been in existence for the last more than 140 years. Sri Laxman Das used to manage the affairs of the temple and its property and had been investing the income of the temple in Sewa, Pooja and Bhog etc. The temple was for public use and every Hindu has a right to worship therein. It is a public temple. Madhav Das, the adopted son of Laxman Das, was managing the affairs of the aforesaid temple. He made various improvements by raising constructions etc. After Madhav Das his son Narayan Das became manager of the temple and after death of Narayan Das his widow Smt. Ram Piari was looking after the management of the temple. It was further pleaded that Smt. Ram Piari was a very intelligent lady and she on 15th November, 1897 created a trust and S/S Ram Sahai, Govind Rai, Chhoramani sons of Brij Lal, Fateh Chand, Khoob Chand, Leeladhar, Thakurdas, Hardev Das and Sita Ram sons of Deep Chand were appointed trustees. It was also stipulated that after the death of the appointed trustees, their heirs will become the trustee. It was further stated that with the passage of time all the appointed trustees expired and thereafter, defendant no.1 became the manager of the temple. However, the defendant no.1 was not honest in his dealings and in discharge of his functions. He failed to manage the temple as per testament dated 15th November, 1897 executed by Smt. Ram Piari. It was further stated that with the passage of time all the appointed trustees expired and thereafter, defendant no.1 became the manager of the temple. However, the defendant no.1 was not honest in his dealings and in discharge of his functions. He failed to manage the temple as per testament dated 15th November, 1897 executed by Smt. Ram Piari. The particulars of various misdeeds, as per assertion of the plaintiffs, committed by the defendant no.1 have been mentioned in the plaint. In the plaint it was prayed for that the defendant no.1 be removed from the de facto trustee and the scheme of administration for the management of temple and its property be framed by the civil court. The suit was contested by the defendant no.1 by raising various pleas including that the temple in question is not public temple but it is a private temple of his ancestors with which any member of public including the plaintiffs has nothing to do. It was pleaded that the filing of the suit was wholly vexatious act of the plaintiffs. The defendant no.1 filed a suit for ejectment against one Virendra Kishore son of Babu Ram, one of the tenants of the disputed property and as a counter-blast the suit was filed. One of the plaintiffs is Pankaj Kishore son of Virendra Kishore. It was further pleaded that the suit against other tenants have been filed for ejectment by the answering respondent. All these tenants have colluded with each other to frustrate the ejectment suits against them. The trial Court framed the following issues on the basis of the pleadings of the parties:- 1. Whether the temple Gopalji Maharaj in question was constructed by the forefathers of Smt. Ram Pyari? If not, its effect? 2. Whether the defendant no.1 Durgadas @ Hublal is the manager of the trust created by Smt. Ram Pyari for the management of the proprty, endowed in the temple Gopalji Maharaj, situate in Mohalla Mohan Kasganj? The parties led evidence oral and documentary in support of their respective cases. The plaintiffs examined Sri Hira Lal as PW/1 and Hoti Lal Verma as PW/2. Certified copy of the Will dated 15th of November, 1897 alleged to have been executed by Smt. Ram Pyari, coy of the assessment register and extract of Khasra of the year 1901 were filed. The plaintiffs examined Sri Hira Lal as PW/1 and Hoti Lal Verma as PW/2. Certified copy of the Will dated 15th of November, 1897 alleged to have been executed by Smt. Ram Pyari, coy of the assessment register and extract of Khasra of the year 1901 were filed. The defendants, on the other hand, examined Hublal himself as DW/1 and filed extracts of revenue record as also copy of the order of SDO, Kasganj in Case No.1 of 1937 dated 20.4.1937, copy of the judgment of District Magistrate, Etah in Bhawar Singh Vs. Hublal dated 16th of August, 1937, copy of the judgment of the Commissioner in the case - Bhawar Singh Vs. Hublal dated 10.12.1937. Copy of the relinquishment deed dated 4th of July, 1937 etc. The Court below examined the matter and under issue no.1 found that the plaintiff has failed to prove that the temple in question was established by Laxmandas or by Smt. Ram Pyari. The theory propounded that Laxmandas had adopted Madho Das is also not established on record. So far as the trust deed dated 15th of November, 1897 is concerned, the said document does not relate to the property in dispute and as such, the plaintiffs cannot derive any benefit therefrom. Under issue no.2 on the basis of the evidence on record, the trial Court found that it is defendant no.1 Hublal who is in possession and occupation of the property in dispute for the last more than 60 years in his own right. The possession of Hublal is peaceful and uninterrupted. He in any case has perfected his title being in adverse possession even if the defence as set out by him with regard to his title is not established. Although it was found that even the documents produced by the plaintiffs and their oral evidence do support the case of the defendant, the suit was ultimately dismissed as not maintainable under section 92 of CPC. Heard Sri Madan Mohan, learned counsel for the appellant and Sri Anshu Chaudhary, learned counsel for the respondents. The learned counsel for the appellant submitted that on the basis of the trust deed dated 15th of November, 1897 as also from the revenue record it is established that the property in question is public temple and the defendant no.1 Hublal is in possession of the property in dispute unauthorisedly. The learned counsel for the appellant submitted that on the basis of the trust deed dated 15th of November, 1897 as also from the revenue record it is established that the property in question is public temple and the defendant no.1 Hublal is in possession of the property in dispute unauthorisedly. The learned counsel for the respondents, on the other hand, submitted that the plaintiffs have utterly failed to establish their right, title or interest, if any, to the property in dispute. The evidence on record supports the case of the defendants and in any case, the plaintiffs can succeed on the strength of their own title. Considered the respective submissions of the learned counsel for the parties and perused the record. At the very outset it may be stated that pointedly a query was put to the learned counsel for the appellant to show any evidence worth the name that the public had a right to visit the temple in their own rights but he failed to refer any such evidence. The main plank of the argument is the registered trust deed/will dated 15th of November, 1897 allegedly executed by Smt. Ram Pyari. The said document has been considered by the trial Court in the light of the other evidence on record. The trial Court has found that there is no evidence on record to show that the property in dispute ever belonged to Laxmandas or his alleged adopted son Madhodas or Smt. Ram Pyari. The only document on which reliance was placed by the plaintiff is paper no.18/C shows that on Khewat no.121 plot no.2794 a Waqf was created. Name of Madho Das has been shown in remarks column. The Court below has found that much reliance cannot be placed upon the solitary document as in the remarks column Madho Das has been shown without mentioning his capacity i.e. as to whether he was trustee or the manager of the aforesaid trust. Moreover, there is no evidence to show that Madho Das was the adopted son of Laxmandas. The other evidece on record shows that Badridas was the owner of plot no.121. The said fact is established from the revenue record particularly extract of Khasra of 1872F. Name of the defendant no.1 Hublal finds recorded in the revenue record over a considerable period of time. The other evidece on record shows that Badridas was the owner of plot no.121. The said fact is established from the revenue record particularly extract of Khasra of 1872F. Name of the defendant no.1 Hublal finds recorded in the revenue record over a considerable period of time. On an analysis of the evidence on record the Court below has found that the plaintiffs have failed to prove that the property in suit was subject matter of the trust deed/will dated 15th November, 1897. The learned counsel for the appellant failed to show that the above finding of the Court below is in any manner perverse or against the weight of the evidence on record. The Court below was very much influenced and rightly so by the fact that it is defendant no.1 Hub Lal who has been in occupation of the property in dispute for a considerable period of time - more than sixty years, as owner. In that capacity he fought litigations with other persons successfully. The finding recorded by the Court below under issue no.1 is based on correct appreciation of the evidence on record and deserves approval. It is, therefore, confirmed. Resultantly, it is held that the plaintiffs have failed to prove that the temple in suit was constructed by the forefathers of Smt. Ram Pyari. There is no evidence on record to show that the defendant no.1 Hublal was ever appointed as manager of the trust alleged to have been created by Smt. Ram Pyari. On the other hand, Hublal has always claimed the property in dispute in his own right. This being so, the finding of the Court below that such a suit is not maintainable under section 92 CPC deserves confirmation. In the result, I find no merit in the appeal. The judgment and decree of the Court below is on terra-firma. The appeal is dismissed. But no order as to costs. _____________