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2018 DIGILAW 501 (HP)

Swami Shayam Bharti v. General Public

2018-03-29

SURESHWAR THAKUR

body2018
JUDGMENT : Sureshwar Thakur, J. The instant appeal is directed, against, the concurrently recorded verdicts by both the learned Courts below, whereby, the plaintiff's suit for rendition, of, a decree for declaration, as well as for, rendition of a decree for permanent prohibitory injunction qua the suit khasra numbers, was, hence dismissed. 2. Briefly stated the facts of the case are that one K.N. Rama Nand was the owner of the suit property. The property was gifted to him long back during the year 1929-30. He constructed a Kutia thereon. He died issueless. The plaintiff was his follower and disciple and was following the religious order to which K.N. Rama Nand belonged and as per the provisions of Hindu Law has succeeded to his estate. Entries even after the death of K.N. Rama Nand continued in his name. After the death of Rama Nand, plaintiff constructed flus latrine, soakage pit, water tank and a room on the suit land. He planted some fruit trees, near 'Samadhi' of K.N. Rama Nand. The langer is also held on Baishakhi day in the memory of said K.N. Rama Nand. The plaintiff being the only disciple and in possession of the property of K.N. Rama Nand has succeeded to the same. The defendants tried to forcibly occupy the suit property. Hence, the suit for declaration of his title and injunction. In alternative plea of ownership by adverse possession was also raised. 3. None appeared for general public. However, defendants No.2 and 3 contested the suit and filed written statement, wherein, they have denied that the plaintiff was a disciple of K.N. Rama Nand. Existence of Kutia was admitted but it was stated that the same was constructed by people of Pajo, Ser and Patrar. It is pleaded that plaintiff never remained in possession of the suit property. In fact, after the death of K.N. Rama Nand, the suit property did not remain in possession of any specific person. Rather it remained in the management of Mela Committee. The defendants denied that the plaintiff was a 'Sanyasi. They pleaded that he was posing as Sanyasi only in order to grab the suit property. 4. The plaintiff filed replication to the written statement of the defendants, wherein, he denied the contents of the written statement and re-affirmed and reasserted the averments, made in the plaint. 5. The defendants denied that the plaintiff was a 'Sanyasi. They pleaded that he was posing as Sanyasi only in order to grab the suit property. 4. The plaintiff filed replication to the written statement of the defendants, wherein, he denied the contents of the written statement and re-affirmed and reasserted the averments, made in the plaint. 5. On the pleadings of the parties, the learned trial Court struck the following issues inter-se the parties at contest:- 1. Whether the plaintiff is owner in possession of the suit land and the revenue entries contrary to it are illegal, null and void, as alleged? OPP. 2. Whether the plaintiff in the alternative has also become the owner of the suit land by way of adverse possession? OPP. 3. Whether the plaintiff has no locus standi to file the present suit? OPD. 4. Whether the suit is bad for non joinder of necessary parties? OPD. 5. Whether the plaintiff is estopped to file the present suit due to his own acts, conducts and admissions? OPD. 6. Whether the plaintiff is non agriculturist of Himachal Pradesh and not entitled to own and possess any land in H.P. ?OPD. 7. Whether the suit has been filed without any cause of action? OPD. 8. Relief. 6. On an appraisal of evidence, adduced before the learned trial Court, the learned trial Court dismissed the suit of the plaintiff/appellant herein. In an appeal, preferred therefrom by the plaintiff/appellant herein before the learned First Appellate Court, the latter Court dismissed the appeal, and, affirmed the findings recorded by the learned trial Court. 7. Now the plaintiff/appellant herein, has instituted the instant Regular Second Appeal, before, this Court, wherein he assails the findings, recorded in its impugned judgment and decree, by the learned first Appellate Court. When the appeal came up for admission, this Court, admitted the appeal instituted by the plaintiff/appellant against the judgment and decree, rendered by the learned first Appellate Court, on the hereinafter extracted substantial questions of law:- 1. Whether the two courts below have erred in presuming the suit property to be debutter property without there being any pleading or evidence to that effect? 2. Whether the plaintiff is entitled to decree of permanent prohibitory injunction? OPP. Substantial question of Law No.1 and 2. 8. Whether the two courts below have erred in presuming the suit property to be debutter property without there being any pleading or evidence to that effect? 2. Whether the plaintiff is entitled to decree of permanent prohibitory injunction? OPP. Substantial question of Law No.1 and 2. 8. A perusal, of, the apposite order of mutation, borne in Ex.PC, apparently unfolds, qua the suit property being donated, by the donor vis-a-vis the donee, one K.N. Rama Nand. Consequently, the suit property, when rather dons the mantle of a gift, than, the mantle of a trust property or of dedication thereof vis-a-vis a diety, (I) hence, when the essential rubric, for the suit property being construable to be “debutter property”, is rather comprised in its being donated for public worship or vis-a-vis a diety, and, bestowment thereof being jus in divino, than, jus in personam, (ii) whereas, with Ex. PC pronouncing, of it, being donated by the donor vis-a-vis the donee, one K.N. Rama Nand, hence, the suit property, cannot, be construed to be a debutter property. 9. The aforesaid K.N. Rama Nand, expired, in the year 1973. However, on his demise, the plaintiff claims himself to be his 'Shishya” or disciple, hence per se ipso facto, thereupon, he claims succession vis-a-vis the suit property. The plaintiff has not made any averments appertaining to the cult, whereto deceased K.N. Rama Nand belonged nor has averred the ordained prescribed manner, for succession vis-a-vis the donee's estate. He has simplictor testified, of his, being anointed by K.N. Rama Nand, as the latter's disciple. However, per se any anointment of the plaintiff, by K.N. Rama Nand, as the latter's disciple, is not testified by the plaintiff, to undergo any rigors, of any ceremony prescribed, for the aforesaid purpose. The omission of the plaintiff, (i) to plead the sect or the cult, whereto deceased K.N. Rama Nand belonged, besides his omission to plead or to prove the ceremonies pointedly applicable to the sect, whereto, the deceased Rama Nand belonged, especially vis-a-vis, the anointment, of, the plaintiff by late Sh. The omission of the plaintiff, (i) to plead the sect or the cult, whereto deceased K.N. Rama Nand belonged, besides his omission to plead or to prove the ceremonies pointedly applicable to the sect, whereto, the deceased Rama Nand belonged, especially vis-a-vis, the anointment, of, the plaintiff by late Sh. K.N. Rama Nand, as the latter's disciple, (ii) and, his further omission to plead, and, prove by adducing cogent evidence, of any purported anointment of the plaintiff, by deceased K.N. Rama Nand, as the latter's disciple, rather being sufficient to render him capacitated, to inherit his estate, thereupon this Court cannot be constrained, to, conclude, that, even if assumingly, the plaintiff was anointed as a disciple, by late Sh. K.N. Rama Nand, (iii) thereupon, the aforesaid manner of anointment not per se bespeaking of it constituting, the ordained manner, of succession, to the deceased donee's estate. Further corollary thereof, is, of, the claim to succession by the plaintiff vis-a-vis the deceased donee's estate, being frivolously raised, without it being anchored, upon, apposite pleadings nor any cogent evidence in respect thereto being adduced. 10. Be that as it may, the plaintiff's claim, for rendition of a decree for permanent prohibitory injunction vis-a-vis the suit property, dehors, his not being entitled to succeed to the estate of deceased K.N. Rama Nand, would acquire validation, in case evidence on record, makes a graphic disclosure of the plaintiff, being in evident possession of the suit property. (i) More so when the defendants do not stake any claim of title thereon rather vesting in them. A committee christened, as, Koteshwar Mela Committee, stands testified by the plaintiff, while rendering his deposition in his cross-examination, to conduct a Mela, at the site of the suit property, and, he also testifies, of the entire village community, contributing funds for the mela being organised, at the site of the suit property. The aforesaid echoings, made by the plaintiff is a significant portrayal, of Koteshwar Mela Committee, hence organizing a Mela, at the site of the suit property. Furthermore, the plaintiff, in his cross-examination, acquiesces, to a suggestion of Koteshwar Mela Committee, organizing a mela on Baishakhi, and, the necessary ceremonies appertaining thereto, being performed inside the Kuitya. The aforesaid echoings, made by the plaintiff is a significant portrayal, of Koteshwar Mela Committee, hence organizing a Mela, at the site of the suit property. Furthermore, the plaintiff, in his cross-examination, acquiesces, to a suggestion of Koteshwar Mela Committee, organizing a mela on Baishakhi, and, the necessary ceremonies appertaining thereto, being performed inside the Kuitya. The aforesaid testification, of, the plaintiff qua holding of a mela, by Koteshwar Mela Committee, on Baishakhi, at the site of the suit property, and, the imperative ceremonies prior thereto being performed inside the kutiya, does garner, an inference of lack of exclusivity of possession, of the plaintiff vis-a-vis the suit property. Corollary, of the aforesaid inference is, of, in case this Court proceeds, to render a decree for permanent prohibitory injunction vis-a-vis the suit property, and, qua the plaintiff, thereupon, it may render the ill consequences of the plaintiff, in garb thereof hence barring, Koteshwar Mela Committee, from holding or organizing mela, on Baishakhi, at the site of the suit property, and, he may even in the garb of a decree for permanent prohibitory injunction, preclude, the performance, of, the requisite necessary ceremonies, inside his kutiya. Consequently, the decree of permanent prohibitory injunction as sought by the plaintiff vis-a-vis the suit land, cannot, be granted to him. However, existence, of, an echoing in the cross-examination, of the successor-in-interest, of the donor, qua times, whereat the plaintiff maintaining his abode, inside the Kutiya, his maintaining lock and key thereof, and, on occasions, his leaving the Kutiya, his handing over the keys, to the authorised official, of the Committee concerned, besides his further making an articulation, of the plaintiff, since, 1970 keeping his wherewithal’s inside the Kutiya, (ii) does render open an inference, that the aforesaid affirmative echoings purveyed by the defendants ' witness vis-a-vis apposite therewith affirmative suggestion, (iii) hence, marshling an inference, of, the defendants, accepting the factum of the plaintiff, maintaining, a temporary abode, at the Kutiya, and, also accepting the fact, that, on the plaintiff leaving the Kuitya, his handing over the keys thereof, to the authorised officials of the Committee concerned, thereupon, it is befitting to conclude that the Kutiya, is a transitory abode of the plaintiff. With the defendants' witness also admitting that since 1971, the plaintiff maintaining, his wherewithal’s, inside the Kutiya, does also enable an inference of the defendants, accepting, the factum of his holding possession of the suit property, even if it is, of, a transitory nature. Since, the site of the suit property is used, only, on Baishakhi, for hence organizing a mela, also when the kutiya is used only on the aforesaid date, for performing the requisite ceremonies, hence, qua the Kutiya in respect whereto, hence, the plaintiff holds a transitory right of abode, since 1971, it would also not be befitting, to decline him the relief, to maintain his transitory abode vis-a-vis the Kutiya. 11. The upshot of the above discussion is that the relief of permanent prohibitory injunction a sprayed for by the plaintiff is declined, whereas, the defendants are restrained from refusing vis-a-vis the plaintiff, his right of maintaining, his transitory abode only qua the Kutiya concerned, along with his complying, with the aforesaid conditions, occurring in the testification of the successor in- interest, of the donor. Accordingly, both the substantial questions of law are decided in the aforesaid manner. 12. In view of the above discussion, the present Regular Second Appeal is partly allowed. In sequel, the judgements and decrees rendered by both the learned Courts below are modified and the suit of the plaintiff hence is partly decreed. Consequently, as aforestated the defendants are restrained from refusing vis-a-vis the plaintiff, the right of his maintaining transitory abode only qua the kutiya situated over the suit land/property. Decree sheet be prepared accordingly. All pending applications also stand disposed of. No order as to costs.