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2014 DIGILAW 509 (UTT)

RAMESH DUTT MISHRA (DECEASED) v. SUBHASH THAPA

2014-11-03

SERVESH KUMAR GUPTA

body2014
JUDGMENT Hon’ble Servesh Kumar Gupta, J. By way of this appeal, the impregnability of the judgment and order dated 28.4.2003, passed by the Additional District Judge/4th F.T.C., Dehradun, is in question. An original Suit No. 602/88, Sri Ramesh Dutt Mishra and his two brothers Vs. Sri Narendra Kumar, was instituted on 23.9.1988, wherein the decree of prohibitory injunction was prayed against the defendants, who all are respondents herein this second appeal. It was sought that defendants be restrained from dispossessing the plaintiffs from the property, in suit, in any manner either themselves or through their agents, labourers, contractors, employees, etc. because plaintiffs are owners in possession of the same, while defendants, having an evil eye upon the property described at the foot of the plaint, were threatening to take forcible illegal possession on the same. This suit was decreed on 27.7.2001 by the Court of Civil Judge (Sr. Div.), whereagainst First Appeal No. 151/2001 was filed by Sri Subhash Thapa and Sri Dinesh Thapa (two defendants impleading rest of the defendants proforma). The appeal was heard by the Additional District Judge, who adjudicated the same on 28.4.2003. Appeal was accepted and the suit of the plaintiff was dismissed with the direction to the District Magistrate, Dehradun for making certain compliance as regards the property in question. Learned appellate court was of the view that the plaintiffs were using the property/land, in question, for their personal gains at the strength of their name recorded in the relevant municipal/revenue records, while in fact it was the property of “Harihar Baba Temple”. Thus, the Court of Appeal permitted everybody having faith and belief in ‘Harihar Baba’ to have access in the temple for worship and to satisfy his religious sentiments and, simultaneously, district administration was directed to take care of the property and appoint some responsible person for the purpose of offering the regular worship in the temple. The direction also entailed to keep the proper accounts of the income and expenditure under the supervision of the Sub Divisional Magistrate of the area. It was also expected from the administration to record the name of ‘Harihar Baba’ being the real owner of the property, in question, in all relevant records. Such directions of the Additional District Judge disgruntled the plaintiffs. So, they have come up in this second appeal. 2. It was also expected from the administration to record the name of ‘Harihar Baba’ being the real owner of the property, in question, in all relevant records. Such directions of the Additional District Judge disgruntled the plaintiffs. So, they have come up in this second appeal. 2. At the outset, it would be relevant to take note of the property in question as has been adverted by the plaintiffs in their plaint as well as in the enclosed map at the time of institution of the suit. Khata No. 358 (as shown in the plaint) Plot bearing In Khasra No. Area 0.142 Acre Mauja Jakhan No. 39/151; 271/2M 40/151 Land No. 151 -Do- Area 0.231 Acre Mauja Central Doon Land No. 151 Khasra No. 497 Area 0.045 Acre Bearing grove Total 0.428 Acres Three parts of the property (as shown in the map) Area shown in red Area 2065 sq. mt. Came to the plaintiffs from colour (Garden) Swami Shayamanand Tirath through sale deed dated 25.8.1981 Area shown in green Area 604.77 sq. mt. Came to the plaintiffs from colour (7 rooms, 4 Swami Shayamanand Tirath stores, 3 shops, large through sale deed dated open yards, terrace & 27.2.1082 veranda having covered area of 287.27 sq. mt. and open area 21.50 sq. mt.) Areas shown in blue Area 1335.23 sq. mt. Came to the plaintiffs from colour having covered Swami Shayamanand Tirath area 599.23 sq. mt. through Will dated 13.8.1982 and open area 736 sq. mt. Sum Total Area 4005 sq. mt. 3. This all property had ‘Harihar Baba’ Temple which is still existing, but along with the temple its popularity known as of now by the name of ‘Baikunth Path Bhajan Ashram’, as appears from the pleadings of the intervener Smt. Satendra Kaur. It would not be out of place to mention that Ms. Satendra Kaur moved the impleadment application before this Court claiming herself to be the devotee of the temple. Such application was allowed by this Court on 24.7.2013 to the extent of according permission to address the Court to protect her concern. So, this Court rendered hearing to learned Counsel of all the parties. 4. Satendra Kaur moved the impleadment application before this Court claiming herself to be the devotee of the temple. Such application was allowed by this Court on 24.7.2013 to the extent of according permission to address the Court to protect her concern. So, this Court rendered hearing to learned Counsel of all the parties. 4. At the time of admission of this appeal, the following substantial question of law was formulated by the Court:- “Whether the first appellate court has acted illegally and in excess of the exercise of jurisdiction in making directions to the District Administration to take action against the plaintiffs for interference in possession of the property in suit?” 5. To appreciate the findings and the circumstances evoking the first appellate court to make such directions, it is indispensable to go through the facts as supported by the evidence of the case, wherefor this Court is well empowered under Section 103 of the Code of Civil Procedure. 6. Learned Sr. Counsel of the plaintiffs/second appellants have not disputed the right of any person to offer the worship in the temple concerned, but his concern is not to the temple or its worship, but in fact the property, the details whereof are mentioned hereinabove, which is appurtenant to this temple. Plaintiffs still do not have objection to anybody if they come forward to offer the worship in the temple, but when they felt that the defendants who are the influential local people causing the interference in the peaceful possession of the property, in question, claiming the same to be of the temple, then they (plaintiffs) moved to the Court by way of launching the injunction suit because the plaintiffs (real brothers) were asserting their own title and the right to enjoy the property because they had obtained the same from Swami Shyamanand Tirath through two sale deeds and one Will, as have been adverted above. So, they pleaded that the defendants or any person, whosoever, have no concern to make any interference in the peaceful possession and enjoyment of the property. On the other hand, the defendants estimated the evil sight of the plaintiffs to earn the hefty wherewithal by means of disposing of the property. So, they started to express their concern to prevent the property from going in the hands of land mafias in the fast growing capital city of Uttarakhand. On the other hand, the defendants estimated the evil sight of the plaintiffs to earn the hefty wherewithal by means of disposing of the property. So, they started to express their concern to prevent the property from going in the hands of land mafias in the fast growing capital city of Uttarakhand. This brief backdrop became the basis of litigation between the plaintiffs and the defendants. 7. The defendants, through their pleadings, brought the true nature and the purpose wherefor this property was in the hands of Swami Shyamanand Tirath excavating its history way back to its original owner Sri Dhruv Singh before 1950. Dhruv Singh executed a sale deed of 7 biswas (part of this property) to his sister-in-law Smt. Laxmi Devi, who constructed a house on the same, but with the passage of time, after Smt. Laxmi Devi her property again became the part of the entire remaining estate. Rest of the property was inherited by Smt. Kaushlya Devi as the real successor of her husband. From Smt. Kaushlya Devi, the property was inherited to Smt. Durga Devi, who had already constructed the temple of ‘Harihar Baba’ on the part of that property, but this temple was, in fact, under the management of Swami Ganganand Giri. Smt. Kaushlya Devi executed a gift deed on 6.10.1949 in favour of Smt. Durga Devi. This registered gift deed is available on the record, wherein it was written that since she has no heir to inherit the property, hence as per the oral will and directions of her husband Sri Dhruv Singh, she was executing that registered gift deed for making the name of her late husband immemorial and this property do include the garden having the trees of lichis and mangoes and the house besides the appurtenant land. It was clarified that Swami Ganganand Giri, disciple of Swami Vishnu Devanand Giri who used to reside in the temple itself, will take care of the entire property for the welfare and augment the temple of Sri ‘Harihar Baba’ and the deity shall be the sole owner in possession of the entire property under the management of Swami Ganganand Giri. She had made it clear in the said gift deed that the property was self earned by her husband at the strength of his own diligence. She had made it clear in the said gift deed that the property was self earned by her husband at the strength of his own diligence. As adverted from this registered gift deed, the property was conveyed to Smt. Durga Devi for the welfare of temple of ‘Harihar Baba’ under the priestship of Swami Ganganand Giri. 8. Now, Smt. Durga Devi mistook her as the owner in possession of this property and she by way of registered gift deed dated 3.10.1950 conveyed it to the priest Ganganand Giri. Smt. Durga Devi was the widow of Subedar Major Kaloo Singh Thapa and by way of this gift deed dated 3.10.1950, she not only conveyed this property, in question, to Swami Gangand Giri, but also some other huge agricultural land earned by her husband Kaloo Singh Thapa, as also the certain other big agricultural land which she inherited from her father. Thus, Swami Ganganand Giri Maharaj became the real occupant of this property, in dispute, as also he acquired the title on the other huge agricultural land from Smt. Durga Devi. Smt. Durga Devi also died intestate. 9. Swami Ganganand Giri executed a registered gift deed dated 2.7.1952 to Sri Shiv Chaitanya Giri of the property, in question, because this registered gift deed Ex. 22 on the record makes it manifest that the property so gifted including the temple, its appurtenant land, seven shops, garden, etc. etc. as also the houses, single and double storied. After executing such gift deed, Sri Ganganand Giri died in 1953. 10. Now, Sri Shiv Chaitanya Giri executed a registered gift deed of the property on 3.8.1956 to Sri Jyotirmayanand, and this Jyotirmayanand Giri gifted the same property to Swami Shyamanand Tirath on 15.6.1970 from whom the plaintiffs are claiming the title over this property by way of two sale deeds and Will, as have been adverted hereinabove. After making the two sale deeds on 25.8.1981 and 27.2.1982 and also the Will dated 13.8.1982, Swami Shyamanand Tirath also died on 16.1.1983, almost within five months from executing the alleged Will. 11. After making the two sale deeds on 25.8.1981 and 27.2.1982 and also the Will dated 13.8.1982, Swami Shyamanand Tirath also died on 16.1.1983, almost within five months from executing the alleged Will. 11. The defendants/respondents have pleaded that the plaintiffs were the original residents of district Moradabad and doing the ordinary job in the Ordnance Factory, Dehradun, but somehow under the guise of being a devotee, came in contact of Swami Shyamanand Tirath, began to have an evil eye on the property, in question and in furtherance of the same got the two sale deeds executed from the priest at the throwaway price and a Will for rest of the property by the same priest and got their name mutated in the relevant records after the death of such swami. Thus, they began to assert their right/title and legal possession over the property. 12. The contention of the defendants/respondents is that Swami Shyamanand Tirath could not have any right or title over the property or the land appurtenant to the temple in the spirit of title. So, there was no question of transferring the same to the plaintiffs because it is established principle that a person cannot convey the better title to any person on the property than he himself has. The nature and the real purpose of leaving this property are well divulged in the registered gift deed dated 6.10.1949 (Ex. 19) executed by Smt. Kaushlya Devi. So, this was not the property of any particular person, but it was gifted by Smt. Kaushlya Devi as per the will of her husband to augment the religious purposes under the shadow of temple of ‘Harihar Baba’. When initial conveyance does not confer the title to Smt. Durga Devi, then how the subsequent deeds could carry the title to other priests in descending order? 13. Learned Counsel of the plaintiffs has submitted that there was no reason for the first appellate court to issue directions to the District Magistrate, as have been stated above, much less there was no counter-claim by the defendants and under Order 18 Rule 2 of the Civil Procedure Code. While adjudicating the appeal, the Court must have confined itself to the issues only. It should not have travelled otherwise. While adjudicating the appeal, the Court must have confined itself to the issues only. It should not have travelled otherwise. This Court does not agree with the argument so raised by the learned Counsel of the appellants for the reason that in the given facts and peculiar circumstances of the case, when the property in question was in the nature of a constructive trust, as has well been pleaded not only by the defendants but supported by the document (Ex. 19), then the Court must not hesitate to come forward to protect the public religious constructive trust and its vast land, constructed property (in the form of Ashram), its appurtenant land and fruit bearing grove from being grabbed by the land mafias. The Court must not wait that somebody should come forward under Section 92 of the Civil Procedure Code seeking permission to file a separate suit. To meet out such an eventuality, Section 151 of the Civil Procedure Code confers the immense power in the hands of the Court. Such provision reads as under: “Saving of inherent powers of Court.—Nothing in this Code shall be deemed to limit or otherwise affect the inherent power of the Court to make such orders as may be necessary for the ends of justice, or to prevent abuse of the process of Court.” 14. Facts of this litigation make abundantly clear that the plaintiffs abused the process of the Court by way of seeking prohibitory injunction against the defendants because under the garb of Court order, they themselves, having evil eye over the property in question, wanted to grab the same which they had already technically grabbed at the strength of two sale deeds and one Will executed by Swami Shyamanand Tirath, whose status in the temple was no more than a mere priest. He could never had acquired such a title on the entire property which his predecessors did not have. There was no question of making any counter-claim under Order 8 Rule 6A of the Civil Procedure Code because none of the defendants had any exclusive personal interest, but they all collectively wanted to protect the property which was to augment the religious public purposes under the shadow of temple of ‘Harihar Baba’. 15. There was no question of making any counter-claim under Order 8 Rule 6A of the Civil Procedure Code because none of the defendants had any exclusive personal interest, but they all collectively wanted to protect the property which was to augment the religious public purposes under the shadow of temple of ‘Harihar Baba’. 15. It has been pleaded that there is a temple of Lord Shiva as well as other deities and several religious functions are organised by the collective efforts of the surrounding people on different occasions of Janamashtmi, Shivratri, Ramnavmi and like such, but if the appurtenant land including the houses, shops, groves and other like properties are excluded from the temple, then the existence of such religious public trust (though not expressly created) will come to jeopardy. So, in these facts and circumstances, the first appellate court has done nothing wrong and it has done so in exercise of inherent jurisdiction under Section 151 C.P.C. and in the opinion of this Court, too, the Court should not lag behind and feel constraints in exercise of such jurisdiction in special circumstances. I do agree with the same, and thus answer the question formulated by this Court at the time of admission of appeal, in negative. 16. There is no force in this appeal. It is liable to be dismissed, but at the same time, I find that to make the directions of the first appellate court more effective, the instructions entailed in the judgment can be modified a bit little. It is also necessary to mention that the district administration, being a very busy body in looking after so many affairs, may not be in a position to take stock of the management of the temple and its appurtenant land periodically, hence, such modifications as I feel necessary, are under: (a) A committee including 4 to 5 persons will be constituted by the District Judge to take possession of the entire land, grove, houses, shops, which are the property, in question, relating to the temple as have been stated hereinabove in the beginning of the body of this judgment. (b) To sort out the aboveboard persons of religious mindset, the District Judge may take advice and suggestions of certain advocates including his subordinate staff hailing from that locality or the surrounding areas. (c) All decisions shall be taken by the committee by majority decision. (b) To sort out the aboveboard persons of religious mindset, the District Judge may take advice and suggestions of certain advocates including his subordinate staff hailing from that locality or the surrounding areas. (c) All decisions shall be taken by the committee by majority decision. (d) The committee will take care to organise each and every religious functions/festivals in an augmented way at the strength of the income from the property of the temple. (e) The committee will never sell, dispose of or create any encumbrance or third party interest on the property of this temple until and unless permitted by this Court. (f) Committee will open the bank account to keep the entire income of the temple safe and secure and from that income, the assets of the temple can be enhanced, but at any rate they shall not be diminished ever in future. (g) Such committee shall be constituted within one month from the date of receiving the certified copy of this order by the District Judge. (h) If any hindrance is caused in making of peaceful management of the temple by the committee by anyone, then the district administration including the district police will be under the bounden duty to provide protection and shelter to such committee and to the priest appointed by it without seeking any direction or orders from any Court. (i) Under no circumstance, either any of the plaintiffs or the defendants or the intervener will be the member of such committee, but they all will have every right to have access to the temple and participate in the religious functions in order to keep on their religious sentiments. (j) If any member of such Committee dies or becomes incapable to act or resigns, the application will be moved by any of the rest of the members praying to the District Judge, Dehradun to appoint a new member on the basis of same yardsticks. 17. The appeal is dismissed with the directions to be followed in the latter part of the judgment. Lower Court record be sent back. The Registry will ensure that District Judge be aware about the directions to follow.