Patna High Court
Bih.State Board Of H.R.Trust vs Chanu Gir on 18 April, 2012
Author: Mungeshwar Sahoo
Bench: Mungeshwar Sahoo
IN THE HIGH COURT OF JUDICATURE AT PATNA
FIRST APPEAL NO. 201 Of 1974
Against the judgment and decree dated 22.12.1973 passed by Sri Amar
Nath Jha, 3rd Additional Subordinate Judge, Chappra in Title Suit No.
50 of 1966.
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THE BIHAR STATE BOARD OF HINDU RELIGIOUS TRUST
.... .... Defendant/Appellant
Versus
CHANU GIR, CHELA OF MATUK GIR
.... .... Plaintiff/Respondent
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Appearance :
For the Appellant : Mr. Ganpati Trivedi, Advocate.
Mr. Manoj Kumar Pandey, Advocate.
Mr. Madan Mohan, Advocate.
For the Respondents : None.
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CORAM: HONOURABLE MR. JUSTICE MUNGESHWAR SAHOO
CAV JUDGMENT
Date: 18-04-2012
Mungeshwar 1. The defendant Bihar State Board of Religious Trust has
Sahoo, J.
filed this first appeal against the judgment and decree dated
22.12.1973passed by Sri Amarnath Jha, the learned 3 rd Additional Subordinate Judge, Chappra in Title Suit No. 50 of 1966 decreeing the plaintiff respondent‟s suit.
2. The plaintiff respondent filed the aforesaid Title Suit No. 50 of 1966 praying for declaration that the properties mentioned in the plaint are private properties of the plaintiff and do not constitute a Patna High Court FA No.201 of 1974 dt.18-04-2012 2 public trust within Section 2(P) of Bihar Act No. 1 of 1951 and further prayed for setting aside the judgment dated 5.1.1966 passed by Sri K.S. Pandey authority under Section 43 of the Bihar Hindu Religious Trust Act (hereinafter referred to as „Trust Act‟). The original plaintiff was Matuk Gir who died during the pendency of the suit. In his place his Chela Chanu Gir the present respondent was substituted.
3. The original plaintiff claimed that Jagdev and Baldev Gir were Chelas of Lalsa Gir who was owner of the property. He gifted the property to his Chelas and put them in possession. Lalsa Gir was not Mahanth and the properties held by his two Chelas were their private and secular properties. Lalsa Gir died before cadastral survey and the properties were recorded in the name of his two Chelas Baldeo Gir and Jagdev Gir. Baldev Gir died issueless and then the properties were in possession of Jagdev Gir. He called himself as Mahanth. He died leaving behind his only Chela Matuk Gir, the original plaintiff. Jagdev Gir had surrendered all the properties in favour of his Chela Matuk Gir. They were never Dashami Sannyasi. Atiths are also called Mahanth and their residences are called Math. Their house was not Dashami Sannyasi Math and even if it was Math then also it was private Math and had no concern with the public. There is no temple nor any deity of Ramjanki, Laxmanji or any Patna High Court FA No.201 of 1974 dt.18-04-2012 3 Shivling is there in the Math in question. It is commonly known as Satjora Math which has got no concern with Moria Math. The Mahanth of Satjora Math was never appointed or nominated by Mahanth by Moria Math. No mela is held at so called Satjora Math on the occasion of Shivratri. No Sadhu visited the Math. People of the locality do not make any offering or subscribe to the Math and it was never treated as public Math.
4. The further case of the plaintiff is that one another Matuk Gir of Moria Math falsely alleging himself to be the Chela of Jagdev Gir executed the sale deed before revisional survey operation in favour of Jai Narayan Tiwari in respect of entire property of the plaintiff and Math but the purchaser or the alleged Matuk Gir never came in possession but the purchaser got his name mutated. Therefore, the plaintiff initiated proceeding under Section 103 of Bihar Tenancy Act and ultimately the purchaser‟s name was struck off and name of plaintiff Matuk Gir was recorded. Subsequently, the defendant appellant filed a petition under Section 43 of the Trust Act for declaration that the Satjora Math and the property appertaining to it constitute a public trust and plaintiff to be the trustee of the same. The authority by judgment dated 5.1.1966 declared the Satjora Math as public Math and the property as the trust property. Therefore, the plaintiff filed the suit.
Patna High Court FA No.201 of 1974 dt.18-04-2012 4
5. The defendant appellant Board contested the suit alleging inter alia that Lalsa Gir and Baldev Gir were not his uncle rather they were initiated as Chela of Lalsa Gir according to religious right. Lalsa Gir was not Atiths by cast and property of Satjora Math were not his personal property. As a matter of fact Lalsa Gir was the Mahanth of Satjora Math and the suit properties were really the Math property and they were acquired by the Mahanths by means of public donation or were dedicated to the Math by religious minded people. The premises is the Math meant for abode of Mahanth and Sadhu and Abhyagats. Lalsa Gir or his Chelas were never the owner of the properties. After death of Lalsa Gir Jagdev Gir succeeded to his Gaddi and he was offered Chadar for Mahanthship. Thereafter Matuk Gir succeeded to the Gaddi of Mahanthship and property as Chela of Mahanth Jagdev Gir by receiving a Chadar from Mahanth. On the death of Lalsa Gir and Jagdev Gir their Samadhi were erected in the Math. Matuk Gir succeeded to Jagdev Gir in usual course of succession of Chelas. Sadhus and Abhyagats used to stay in the Math. There were idols of Ram Jankiji and Laxmanji and also a Shivling installed in the Math. There are samadhi of Somnath Ji and other out- going Mahanth. Satjora Math is really and allied to Moria Math and Satjora Math is a public and charitable institution. It was established by public fund long long ago. People of the locality subscribed for the Patna High Court FA No.201 of 1974 dt.18-04-2012 5 upkeep of the Math and the lands appertaining to the Math have been dedicated by the public or acquired with the income of public offers and subscriptions. The proceedings under section 103 of Bihar Act were collusive acts of the plaintiff with mala fide intention. The judgment passed by the authority under Section 43 of the Trust Act is legal and correct.
6. On the basis of the pleadings of the parties the learned court below framed the following issues :
"1. Is the suit as framed maintainable ?
2. Has the plaintiff got any cause of action for the suit ?
3. Is the suit bad for want of valid and legal notice under section 78 of Act I of 1951 ?
4. Are the disputed Math and properties attached to it public trust and trust properties in the hands of the plaintiff or it is a private property of the plaintiff ?
5. Whether the orders passed by the authority under section 43 of the B.H.T. Act is illegal and fit to be set aside ?
6. To what relief or reliefs, if any, is the plaintiff entitled in this suit ?"
7. After trial considering the materials available on record the learned court below found that it has not been established that the Math in question was a public trust for religious and charitable Patna High Court FA No.201 of 1974 dt.18-04-2012 6 purposes and the properties in possession of the plaintiff were the properties of public trust. Therefore, decreed the plaintiff‟s suit.
8. The learned counsel for the appellant Mr. Trivedi submitted that the learned court below has wrongly recorded a finding that the Math is not public Math and the properties are not public trust property. The learned court below has also wrongly recorded a finding that the properties are the private properties of the plaintiff without there being any evidence on record. The learned court below has wrongly considered Ext.1 the deposition of the original plaintiff Matuk Gir himself. According to the learned counsel Lalsa Gir died issueless and the properties were succeeded by his Chela Jagdev Gir. Had the Math being a private Math than the property would have been succeeded by his legal heirs but after his death the properties were succeeded by Chelas and thereafter another Chela i.e. succession is from Guru to Chela. In such circumstances, it cannot be said that it was a private Math. The plaintiff has not produced any documentary evidence in support of his title. Even the case of the plaintiff is that the properties were gifted originally. Therefore, no title will pass by oral gift to the plaintiff but the learned court below without considering these aspects of the matter wrongly held that the Math is private property. On these grounds, the learned counsel submitted that the impugned judgment and decree are unsustainable Patna High Court FA No.201 of 1974 dt.18-04-2012 7 in the eye of law.
9. As stated above nobody appears on behalf of the plaintiff respondent. In view of the submission of the learned counsel for the appellant, the only point arises for consideration in this appeal is as to whether the Satjora Math and the properties appertaining to it is public trust properties or private Math and whether the judgment and decree passed by the court below is sustainable in the eye of law or not.
10. It is admitted fact that there is no document regarding grant or dedication of the properties which are in possession of the plaintiff. The defendant admitted that Lalsa Gir was the founder of the Math. There is nothing on record to show that prior to Lalsa Gir the Math was in existence. It is the case of the plaintiff that Lalsa Gir gifted the properties to his Chelas where as according to the defendants Lalsa Gir was the Mahanth and on his death his Chela succeeded the properties. Therefore, now it becomes the admitted fact that the inheritance of the properties is from Guru to Chela. It is also admitted that the properties is not standing in the name of any deity rather the properties appertains to the Math namely Satjora Math. The plaintiff has produced Ext.14 the original zerpeshgi deed executed by Jagdeo Gir in July 1895 with respect to 39 bigha of land describing himself as Chela of Lalsa Gir. Ext. 15 has been produced by the plaintiff Patna High Court FA No.201 of 1974 dt.18-04-2012 8 which is the cadastral survey Khatiyan of the year 1900 wherein the lands in suit were recorded in the name of Jagdev Gir and Baldev Gir, Chelas of Lalsa Gir. It appears that the rent was being paid for the land which was Rs.155/-. The revisional Khatiyan has been marked as Ext.15-A and 15-G which stands in the name of Matuk Gir Chelas of Jagdev Gir. In these documents there is no mention that they are Mahanth or that the property is of Math. There is nothing in these documents to show that the properties were acquired by way of dedication by any public in general or by any person. Likewise there is absolutely no evidence produced by the defendant appellant in support of this fact except the pleading and bald statement.
11. Ext. 9 is original zerpeshgi deed executed by Matuk Gir regarding 1 bigha 5 kattha land for Rs.400/- for the purpose of his personal expenses and partly for redemption of the earlier mortgage debts. Ext. 11 and 11/A are two registered Kabuliyats executed in favour of Matuk Gir. Ext.12 is a receipt granted by Asharfi Sah to Matuk Gir. All these documents have been produced by the plaintiff to show that the properties were dealt with by the plaintiff and his Gurus independently without there being any interruption.
12. The defendant‟s case is based on Ext. A, the deposition of so called Matuk Gir in Title Suit No. 16 of 1940 / 17 of 1943 wherein he has stated that the Math is subordinate to Moria Math. He also Patna High Court FA No.201 of 1974 dt.18-04-2012 9 admitted that the succession to the property is from Guru to Chela. The learned counsel for the appellant giving much emphasis on this submitted that since the succession is not to the heirs of the founder rather it goes from Guru to Chela, it cannot be termed as private Math.
13. From perusal of Ext.10 and Ext. 10/A it appears that in revisional survey the name of Jainarayan Tiwari was recorded over the property of Math wherein Matuk Gir, the plaintiff filed objection and subsequently the name of Jainarayan Tiwari was deleted. So far this proceeding is concerned, the appellants have never challenged the same before any appropriate authority. Their only case is that it is collusive proceeding. In my opinion, the mere saying will not do.
14. Except the deposition of so called Matuk Gir no other reliable documentary evidence has been produced by the appellant board. The appellant has also examined many witnesses to say that Matuk Gir the plaintiff has deposed in the aforesaid title suit. This deposition has been marked as Ext. C. Therefore, merely on the basis of the Ext. C it cannot be said that the Satjora Math is subordinate to Moria Math.
15. Many witnesses i.e. DW 3, 6, 7, 9 have stated that the Math is public Math and it was established by dedication. Some of the Patna High Court FA No.201 of 1974 dt.18-04-2012 10 witnesses have stated that there are deities in the Math. Further it appears that during the course of hearing in the suit the defendant appellant gave up the case that there were deities in the Math. The defendant appellant also gave up the case pleaded in the written statement that Mela is held. There is absolutely no evidence regarding dedication. The defendant appellant also gave up the case of temple and Samadhi. Therefore, now only basis of the appellant is that Ext. C, the deposition.
16. The learned counsel relied upon 1988 PLJR 176 and submitted that mere assertion by party claiming temple property as ancestral property is of no avail in absence of other evidence. Documents wherein possession has been taken note of can only be treated as document of possession and not of title. On the basis of this the learned counsel submitted that the plaintiffs have not filed any document of title. The revenue record i.e. C.S. khatiyan or R.S. khatiyan are not documents of title rather they are the documents of possession. Therefore, on the basis of these documents it cannot be said that the plaintiffs are the owner of the property. From perusal of the said judgment it appears that in that case the lands were recorded as temple and Kaisare Hind Bahadur. The British government was granting Rs.40/- per annum for upkeep of the temple. It was not the case of succession from Guru to Chela.
Patna High Court FA No.201 of 1974 dt.18-04-2012 11
17. The learned counsel next relied upon AIR 1980 SC 660 Sri Krishana Singh vs. Mathura Ahir. So far this decision is concerned, the controversy was regarding Mahanthship and it was between private person and private person. No question as to whether it was private trust or public trust was decided.
18. The learned counsel next relied upon AIR 1970 SC 439 Kalanka Devi Sansthan vs. Maharashtra Revenue Tribunal, Nagpur. So far this decision is concerned, the distinction of Sibayat and an idol and a trustee has been considered by the Apex Court. It is not the question involved in the present case.
19. In view of the above discussion of the case of the parties and the evidences of the parties it becomes clear that the defendant has admitted :-
(A) That Lalsa Gir is the founder of the Math. There is no reliable evidence of existence of idol or deities and likewise there is no evidence of performance of pooja offerings by public at large.
No evidence of Samadhi or performance of Samaiya etc. (B) The Mahanthship as has been admitted by the defendant is from Guru to Chela.
(C) So far appointment of Chela is concerned, it is the reigning Mahanth either appoints or nominats his successor from amongst Patna High Court FA No.201 of 1974 dt.18-04-2012 12 Chelas and the public have had at no time any voice in the selection or nomination.
(D) The properties appertaining to the Math have always been recorded in the name of Mahanth as proprietors and not in the name of the Math.
(E) The Mahanths in possession were managing the properties as their own since more than century. Some properties were even acquired by Mahanths either in their own name but never in the name of Math or deities.
20. In the present case, according to the plaintiff it is not a public trust. The appellant board is claiming that the Math is a public trust and the properties appertaining to it is public trust properties therefore, it is the onus of the defendant appellant to prove this fact.
21. In the case of The Bihar State Board of Religious Trust, (Patna) vs. Mahanth Sri Biseshwar Das AIR 1971 SC 2057 in similarly situated case the Apex Court has held that living of Sadhu and giving hospitality to way farers is not by itself proof of temple being public temple or properties being public trust. The Apex Court has also held that when the burden to prove that the properties of the temple held by the reining Mahanth is for public purpose of a religious or charitable character is on the board, court cannot draw an Patna High Court FA No.201 of 1974 dt.18-04-2012 13 adverse inference for failure of Mahanth to produce certain documents where under the properties have been gifted to the founder Mahanth. Here admittedly the defendant appellant has not at all adduced any evidence that in fact the Mahanth were holding the property of trust for public purposes of a religious or charitable character. Admittedly, there is no grant or dedication and there is no evidence that the properties were dedicated either by a person or by public to Lalsa Gir. From perusal of the decision referred to above AIR 1971 SC 2057 (Supra) it appears that the circumstances mentioned hereinabove is the same and similar circumstance which was also involved in that case before the Apex Court vide paragraph
9. The Apex Court at paragraph 18 and 21 held as follows :
"18. The existence of a private mutt, where the property was given to the head of the mutt for his personal benefit only, has in the past been recognized. (see Matam Nadipudiv. Board of Commissioners for Hindu Religious Endowments, Madras, AIR1938 Mad 810 and Missir v. Das, (1949) ILR 28 Pat 890. In such cases there is no intention on the part of the grantor to fetter the grantee with any obligation in dealing with the property granted. In each case the court has to come to its conclusion either from the grant itself or from the circumstances of the case whether the grant was for the benefit of the public or a section of it, i.e., an unascertained Patna High Court FA No.201 of 1974 dt.18-04-2012 14 class, or for the benefit of the grantee himself or for a class of ascertained individuals. An inference can also be drawn from the usage and custom of the institution or from the mode in which its properties have been dealt with as also other established circumstances."
21. Lastly, reference was made to some of the deeds of gifts made by the reigning mahants in favour of their nominees as successors where the properties were described as appertaining to the asthal.
Assuming that the scribes of these documents used the expression „appertaining to the asthal‟ in the sense in which such expression is sometimes used in the deeds of conveyance, the expression means things which are appurtenant to and forming part of the principal property which is the subject matter of the instrument. (see Stroud‟s Judicial Dictionary, (3rd Ed.), Vol. I, 177). The expression „appertaining to the asthal‟ in these deeds, therefore, would at best mean that the properties formed part of the asthal and are not the properties of the mahant as distinct from those of the asthal. (see Sri Thakurji Ramji v. Mathura Prasad, AIR 1941 Pat 354 at p. 358. But unless the asthal itself is a public trust for religious or charitable purposes, the properties appertaining thereto would not be properties of a public trust for religious or charitable purposes. The use of the expression „appertaining to the asthal‟, therefore, cannot lead to the conclusion that the properties in question were Patna High Court FA No.201 of 1974 dt.18-04-2012 15 stamped with a trust for public purposes."
22. It appears that in the case before the Apex Court the trial court dismissed the suit. The High Court considering the above circumstances reversed the trial court‟s judgment and decreed the plaintiff‟s suit and held that it is not public trust. The Apex Court dismissed the appeal of the board. In my opinion, therefore, since the facts and circumstances and the question is similar in the present case also I find that the defendant appellant has failed to establish that Satjora Math is public Math and the properties appertaining to it is a public trust properties. Therefore, the findings of the learned court below on these points are hereby confirmed.
23. In the result, I find no merit in this first appeal. Thus, this first appeal is dismissed. In the facts and circumstances of the case, there shall be no orders as to costs.
(Mungeshwar Sahoo, J.) Patna High Court, Patna The 18th April, 2012 S.S./ A.F.R.