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2017 DIGILAW 277 (UTT)

Jaya Shukla v. Bal Kalyan Samiti

2017-05-09

SERVESH KUMAR GUPTA

body2017
JUDGMENT : 1. Having heard the pros and cons put forth by the learned Counsels for the parties, it transpires that a civil suit no. 425/1995 was instituted on 12.6.1995 by Smt. Jaya Shukla seeking declaratory decree that she be declared the exclusive owner of the property, in question, on the strength of Will in her favour. It was also prayed that the Samarpan, Sankalp and Utsarg purportedly made by Smt. Shakuntala (the original owner of the property) be declared as if it never took place. 2. It has been revealed in the plaint that the defendant, which is Bal Kalyan Samiti, a registered society, is in the possession of the major part of this property ever since 1991, viz. from the lifetime of Smt. Shakuntala herself, who passed away on 25.1.1995. Meaning thereby, the defendant committee remained in occupation of such property at least since four years before of the death of original owner Smt. Shakuntala. After her death, the suit was instituted by Smt. Jaya Shukla, claiming herself to be the daughter of Smt. Shakuntala, for the reliefs as have been indicated above. Details of property have been mentioned at the foot of the plaint. This property is popularly known as 16A Rajpur Road (3 Narayan Muni Marg), Dehradun. This suit was prolonged in the Court of the learned Trial Judge for more than 20 years and ultimately it was dismissed on merits on 13.1.2016, whereagainst this First Appeal No. 11/2016 was preferred on 17.2.2016 and this Court, upon hearing the learned Counsel for the appellant, passed an ad interim injunction directing the parties to maintain status quo over the property in question. Fortiori, it was also directed that neither of the parties shall create any third party interest or encumbrance over such property in any manner, whatsoever. 3. It has been in the record that after taking the possession way back in 1991, some time later, this committee founded a school to impart the elementary education up to 5th standard and this school is being run up till now. 4. 3. It has been in the record that after taking the possession way back in 1991, some time later, this committee founded a school to impart the elementary education up to 5th standard and this school is being run up till now. 4. Eventually, it was found that the respondent society was constructing the toilets/bathrooms for the tiny taughts, school staff as well as visitors on a particular portion of such land which is beside the Principal’s room, and somehow the injunction order passed by this Court could not purportedly come into the notice of the society/its management/Principal, hence the construction continued inasmuch as raising the wall of such bathrooms up to the height of 4-5 feet. Photographs have been produced before this Court by the either sides which affirm this position. 5. It has been alleged that the defendant/respondent did not make the compliance of the stay order so granted by this Court on 18.2.2016. Hence, an application under Order 39 Rule 2A of the C.P.C. was moved by the appellant seeking the punishment as postulated under such provision. Objections against this application and the photographs of the spot have been filed by the respondent. 6. It has been averred that the society immediately stopped the work and never commenced the same when such injunction passed by the Court came into its notice first time on 9.5.2016 when the police reached at the spot. Since then the work is stopped as such and status quo is being maintained. It has further been averred that in any case, if a little bit element of contempt is inferred from any corner, then the defendant/respondent seeks unconditional apology for the same. 7. It was the case of the society that such property was entrusted/donated by Smt. Shakuntala during her lifetime, even before occupation of such land, by way of oral Sankalp, Samarpan and Utsarg for the charitable/social purposes. So, with the passage of time, the school was founded to impart the education and utilise the property so donated by Smt. Shakuntala and this notion/purpose is no less than perfectly charitable/for the good of the society because the school imparts the education pre-dominantly to the have-nots/poor/needy/marginalised/downtrodden children of the society. So, its wholesome purpose is perfectly charitable and social and more than any religious one. 8. So, its wholesome purpose is perfectly charitable and social and more than any religious one. 8. Even otherwise, there was no propriety for concentrating the object of such donation for the religious purpose when it was being handed over to the “Bal Kalyan Samiti” because its name by itself reflects the meaning and purpose that it is a society dedicated to and meant for the welfare of the children and it was got registered and being run for this only purpose. So, the foundation and running of the school is the accomplishment of the purpose wherefor the society was got registered in the concerned office and it received the land/property, in question, for the advancement of its aims and objects. 9. On the other hand, the sole case of the plaintiff was that such Sankalp/Samarpan could have been at best for the religious purpose. But the plaintiff nowhere could prove that the land/property, in question, was donated exclusively for the religious purposes. 10. I am of the view that since the defendant society, as admitted by the plaintiff, is in occupation of the land/property, in question, ever since 1991, i.e. since the lifetime of its original owner and at least four years prior to her death, and such owner never raised any objection on the utilisation of the property, in question, in the manner as it is being done. So, her daughter (plaintiff) has no right to institute the suit seeking the declaration of the ownership over such land on the basis of alleged Will, which too could not be relied by trial court with expounded reasons. I too could not be persuaded to take a different view in this regard. 11. It is evident that along with the declaration, no injunction of any kind was sought by the plaintiff. It is also evident that the disputed property, upon which the construction of toilets/bathrooms had started, was not in the possession of the appellant, rather it was in the exclusive possession of the society/school. So, that way also, no question could have arisen to seek or issue the injunction against the defendant stopping it to use the property for the purpose it is being used. 12. So, that way also, no question could have arisen to seek or issue the injunction against the defendant stopping it to use the property for the purpose it is being used. 12. The existence of toilets/bathrooms is the elementary/primary and indispensable need for any assembly, which comprises of a number of children who are pursing their education and the other teaching and non-teaching staff of the school. 13. So, in view of what has been set forth above, I do not find any force in this appeal. It is hereby dismissed. Interim order granted by this Court stands vacated. All pending applications also stand disposed of. 14. Let the lower court record be sent back.