Chattisgarh High Court
Shree Janki Raman Mandir, Shri Thakur Ji ... vs State Of Chhattisgarh on 2 January, 2025
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2025:CGHC:154
AFR
HIGH COURT OF CHHATTISGARH AT BILASPUR
Order Reserved on 06.12.2024
Order Delivered on 02.01.2025
SA No. 197 of 2022
1 - Shree Janki Raman Mandir, Shri Thakur Ji Mandir, Shriram Laxman Janki
Mandir, Shri Hanuman Mandir Village Lalbandha Talab, Arjuni, District Baloda
Bazar-Bhatapara (C.G.) Through Sarwarakar Chandrika Prasad Sharma S/o Shri
Sharda Prasad Sharma, Aged About 56 Years, R/o Village Arjuni, Tahsil Bhatapara,
District Baloda Bazar-Bhatapara (C.G.)
... Appellant
Versus
1 - State Of Chhattisgarh Through Collector, Raipur, Presently District Baloda
Bazar-Bhatapara (C.G.)
2 - Collector, Raipur Presently District Baloda Bazar-Bhatapara (C.G.)
3 - Punit Ram Verma S/o Shri Mulchand Verma, Aged About 62 Years R/o Mouli
Chowk Arjuni, Tahsil Baloda Bazar, District Baloda Bazar-Bhatapara (C.G.)
4 - Sumitra Bai W/o Pirit Ram Sahu, Ex-Sarpanch, Gram Panchayat Arjuni, Tahsil
Baloda Bazar, District Baloda Bazar-Bhatapara (C.G.)
5 - Dwarika Dhruv S/o Shri Narayan Dhruv R/o Bus Stand Arjuni, Tahsil Baloda
Bazar, District Baloda Bazar-Bhatapara (C.G.)
6 - Sarjuram Yadav S/o Shri Janakram Yadav Aged About 59 Years Ex-Panch,
Gram Panchayat Arjuni, Bajrang Chowk Arjuni, Tahsil Baloda Bazar, District Baloda
Bazar-Bhatapara (C.G.)
... Non-Appellant
For Applicant(s) : Mr. H.B. Agrawal, Senior Advocate along with Mr.
Swati Agrawal, Advocate
SHUBHAM
DEY
Digitally signed
by SHUBHAM
DEY
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For Respondent/State : Mr. Ritesh Giri, Panel Lawyer
For Respondents No. : Mr. Shobit Koshta, Advocate 3 to 6 SB: Hon'ble Shri Parth Prateem Sahu, Judge CAV ORDER
1. The appeal is filed under Section 100 of the Code of Civil Procedure, 1908 questioning the legality and sustainability of the impugned judgment and decree dated 04.03.2022 passed by the learned 4 th Additional District Judge, Bhatapara, District - Balodabazar-Bhatapara in Civil Appeal No. 27-A/2018 whereby, the learned Trial Court dismissed the appeal affirming the judgment and decree passed by the learned Trial Court dismissing the suit filed by the appellant/plaintiff.
2. This appeal was admitted on the following substantial questions of law (order dated 16.12.2022) "Whether findings of both the Courts below holding that the temple is a public trust is perverse."
3. Facts relevant for disposal of this appeal are that the appellant/plaintiff filed a suit for deleting the name of Manager/Collector from the lands mentioned in Para 2 of the plaint, declaration of title, permanent injunction inter alia on the pleading therein that Shri Ram Janaki Raman Temple, Shri Thakurji Temple, Shri Ram Laxman Janaki Temple, Shri Hanuman Temple was constructed by Smt. Sarjawati Bai W/o. Late Diwan Bahadurji Agrawal along with other relatives, at Lalbandha Talab, Arjuni, Tehsil-
Balodabazar in the year around 1972. From time to time, relatives of Smt. Sarjawati Bai have donated the agricultural land situated at Village Hathi Khairtala and Village Arjuni details of which are mentioned in Paragraph No. 2 of plaint. The aforementioned temples are private temples and the 3 / 26 Sarvarkar of the aforementioned temples were engaged by the donators and as of now, Manager and Sarvakara is Chandrika Prasad Sharma.
4. It is pleaded that according to the circular/memo issued by the erstwhile State of Madhya Pradesh, temples constructed over the government land (only for temples), the Collectors were appointed as Manager under the Madhya Pradesh Public Trusts Act, 1951 (hereinafter referred to as the Act, 1951) and based on the said circular, the name of the Collector is also added as Manager without the knowledge of plaintiff. The temples are not public temples under the Act, 1951. It is also pleaded that the agricultural lands donated to the temples were managed by Chandrika Prasad Sharma (Sarwarakar). It was being given by the Sarwarakar to Defendant No. 3 Punit Ram Sharma on lease and the Defendant No. 3 is doing the agricultural activities on behalf of the temple. Under the influence of the Defendants No. 5 & 6, the Defendant No. 4 along with other villagers is causing interference and managing the affairs of the temple.
5. The Defendants No. 3 to 6 submitted written statement to the suit filed by the plaintiff pleading therein that the aforementioned temples were constructed for worship of the general public and it was devoted to the general public and since then, the Village Panchayat Arjuni and the residents of that panchayat were taking care and managing the affairs of the temple. Respondent No. 2/Collector, Raipur is appointed as manager of the temples and from which, it is apparent that the plaintiff temple is not private, but pubic temple. It is also pleaded that the husband of Late Smt. Sarjawati Bai i.e. Late Shri Rajbahadur Dau Kalyan Singh was Zameendar of many villages and his zamindari is known as "Tarenga Raj"
. Late Shri Rajbahadur Dau Kalyan Singh and late Smt. Sarjawati Bai were issue less. During his lifetime, late Shri Rajbahadur Dau Kalyan 4 / 26 Singh has constructed many Dharamshalas, Hospitals, ponds and temples for the benefit of general public including Kalyansagar Talab, Jankinandani Dharamshala at Bhatapara, D.K.S. Hospital at Raipur and donated hundreds of acres of land to Indira Gandhi Krishi Vishwavidyalaya Raipur of Village Sendhri, Khapradih, Bhorsi, Rajadhar and Kalmidih. Similarly, Late Smt. Sarjawati has also donated the dieties of the plaintiff temple. She died about 30 years ago.
6. It is also pleaded that apart from the properties mentioned in Para 2, one land bearing Khasra No 778/2, area 1.117 hectare, Khasra No. 908 area 0.902, Khasra No. 914 area 0.22 hectare are also the land of the temple which was sold by Chandrika Prasad Sharma in the year 2005 to different persons and have misused the funds. On account of misusing the funds by sale of the lands of the temple, villagers have removed Chandrika Prasad Sharma from Pujari. Chandrika Prasad Sharma is not having the right and title to file suit on behalf of the Temple which is a public temple and was constructed for worship of the general public. The land which was sold with the permission of the Collector was for the purpose of renovation of the temple. The permission was granted with certain conditions of maintaining the accounts though chartered accountant to purchase the new land from the amount remaining after renovation of the temple. The temple was not renovated and the amount is expended for personal use. The permission dated 22.12.2004 was canceled vide order dated 26.09.2008 by the Respondent No. 2/Collector, Raipur and further directed to record the land in the revenue records as recorded earlier, as the temple is a public temple, therefore, all the accounts of expenditure, income of the temple has to be submitted before the Collector (Respondent No. 2). In the event the accounts are not submitted, the Respondent No. 2/Collector is having the right to interfere and to take over the management and affairs of the temple.
5 / 267. It is also pleaded that the management of the deity and the agricultural land is being done by the villagers of Village Panchayat Arjuni. The deity of the temple of Shri Ram Janaki Temple was stolen 20 years ago and the villagers after collecting/contributing money have purchased the new idol and got it consecrated with all rituals in the temple. At the time of theft of the deity from the temple, one Shatrughan Maharaj was Pujari. He was removed and Balramdas Vaishnaw was kept as Pujari and after the death of Balramdas Vaishnaw, villagers of the village panchayat has engaged Chandrika Prasad Sharma as Pujari. Chandrika Prasad Sharma was earlier an employee of the post office who was terminated. After removal of Chandrika Prasad Sharma from Pujari, Mitranand Sharma was engaged as new Pujari. The temple is being maintained and other arrangements are being made with the help of the villagers of the village Panchayat Arjuni. Chandrika Prasad Sharma keeping in dark the villagers, in connivance with the Revenue Officers has got his name mutated/recorded in the revenue records as "Sarwarkar".
8. Based on the pleadings made by the parties, learned trial Court formulated 4 issues for consideration parties led evidence on the issues framed orally and documentary. Learned Trail Court upon appreciation of the pleadings and evidence brought on record, dismissed the suit vide judgment and decree dated 17.05.2018. The judgment and decree passed by the learned Trial Court was assailed by the appellant in a first appeal which also came to be dismissed vide impugned judgment and decree and affirmed the judgment and decree passed by the learned Trial Court.
9. Learned Senior Counsel for the appellant would submit that the temples are private temple, which are not registered under the Act 1951, unless and until the temples are registered under the Act, 1951 it will remain as 6 / 26 the private temple. He contended that the Collector who is Registrar under the Act, 1951 in its order dated 26.09.2008 (Exhibit-P/19) has held that as the Trust is unregistered, and therefore, he is having no jurisdiction with respect to the removal of the Sarwarkar or appointing new Sarwarkar in his place from which, it is clear that the trust is unregistered.
10.He contended that since beginning, the temple are being run and managed by the Sarwarkar as a private temples. Without there being any notice, name of Collector as Manager has erroneously been entered in revenue records. The defendants have not submitted any documents to controvert the pleadings made that the temples are made public. There is no document on record to show that the temples are registered under the Act, 1951. He contended that in para 3 of the plaint, there is specific mention that only the temples constructed on the Government land are to be managed by the Collector and after entering his name as mentioned in the revenue records according to the memo/circular issued by the State Government under the Act, 1951. The temple is situated over the private ownership land, and therefore, the circular will not apply. It is also argued that there is no enquiry under Section 5 of the Act of 1951. In support of his contention he places reliance upon the decision of the Hon'ble Supreme Court in the case of State of Madhya Pradesh & Ors. Vs. Pujari Utthan Avam Kalyan Samiti and Anr. (2021) 10 SCC 222.
11. Learned counsel for the Respondent Nos.3-6 referring to evidence of Chandrika Prasad Sharma (P.W.-1) would submit that this witness admitted in his evidence that the Collector, Raipur has issued a direction to get the temples registered in proceedings of deciding an application seeking permission of the sale of land recorded in the name of temple, and further, admitted that he has not got the temple registered. It is also submitted that he has not filed any application/proceeding for deleting the 7 / 26 name of Collector at the time of seeking permission for sale of land or thereafter. He also submits that Chandrika Prasad Sharma was appointed as Sarwarkar on 17.07.1998 pursuant to the order passed by the Tehsildar in revenue proceedings. In the said order, it is clearly mentioned that the name of the Collector recorded in the Revenue Records will remain as it is, and therefore, since the date of his appointment as Sarwarkar, the plaintiff was aware that the plaintiff's temple is a public temple and its manager is Collector, Raipur.
12.He also submits that in the revenue records, name of the Collector, Raipur is also mentioned for which Exhibit-D/15 is filed. It is the contention of counsel for the appellant that since beginning, Late Smt. Sarjawati donated the temples to public at large for the purpose of worship of general public and they are offering their prayers in the temples and also organizing worships and other events from time to time, managing the affairs of the temple by collecting money from the villagers of the village Panchayat Arjuni. He submits that the learned Trial Court upon proper appreciation of the evidence have recorded that no document is available that whether the temple is private or public and therefore, the nature of the trust/temple is to be assessed based on its nature, and accordingly, it is being assessed.
13.Learned Trial Court upon appreciation of the evidence brought on record had categorically recorded the finding that all the affairs of the temples are being managed by the villagers and all the people of the village offers their prayer in the temple. The villagers collect money to meet out the expenditure of the temple and recorded a finding that the nature of the temple is of public temple. He also contended that the said finding is based on the proper appreciation of the evidence. Learned first appellate Court also took note of the Exhibit P/1, which is the order of Tehsildar 8 / 26 appointing Chandrika Prasad Sharma as Sawarkar. and Recording of the name of "Manager/Collector" in revenue records to be one of the ground to hold that the temple is a public temple. There is no illegality and infirmity in the order passed by both the learned Courts below. There is concurrent finding of fact recorded by both the courts below and therefore, it does not call for any interference in exercise of jurisdiction under Section 100 of the Code of Civil Procedure, 1908.
14.I have heard learned counsel for the parties and also perused the record of both the Courts below.
15.The appellant/plaintiff in support of his pleadings made in the plaint had submitted and exhibited documents Exhibit P/1 to Exhibit P/25 which includes the order of Tehsildar dated 17.07.1998 i.e. Exhibit P/1 appointing Chandrika Prasad Sharma as Sarwarkar. The revenue records are from Exhibit - P/2 to Exhibit - P/7. The letter dated 17.04.2008 of the Tehsildar-cum-Executive Magistrate directing one Dwarika Prasad Dhruw for handing over the keys of the temple. The application submitted before the Chief Secretary, Home Department seeking a prayer for a direction for handing over the keys to him vide Exhibit - P/9. Order dated 26.01.2008 by the Collector, Raipur canceling the earlier order granting permission to sell the land dated 22.12.2004 and the other exhibits from Exhibit - P/20 to Exhibit - P/25. Copy of the revenue entries in Kistbandhi Khatauni and copies of the Khasra Panchsahala.
16.Plaintiff examined himself as P.W.1. He submitted an Affidavit under Order 18 Rule 4 for examination of his chief. In affidavit, he made a statement according to the pleadings made in the plaint. In para 12 of his evidence in cross-examination, he admitted that Late Shri Dau Kalyan Singh and Late Smt. Sarjawati Bai were husband and wife and were issue less. Late Dau Kalyan Singh was Malgujar of Village Arjuni, Balodabazar-Bhatapara.
9 / 26He admitted that Late Smt. Sarjawati Bai W/o. Late Shri Dau Kalyan Singh constructed temple in village Arjuni. In his evidence, he also stated that the temples were private, however, further he admitted that there is no restriction/bar on offering prayer in the temple by general public. In Para 15, he admitted that the name of Collector as manager is entered in Rin pustika/Kisaan Kitaab and further admitted that he was appointed as Sarwarakar on 17.07.1998 by Dau Jagdish Prasad Agrawal. In his evidence, he also admitted that he sold the land about less than 05 acres to different peoples with the prior permission of the Collector, Raipur.
According to the conditions, he was required to maintain the accounts of renovation of temple and to produce the same before the Collector, Raipur to which, he did not. He also admitted that earlier, the Collector, Raipur has directed him to get the temple registered and further, that as of now, he has not got the temple registered.
17.One Bhawani Prasad Sharma is examined as P.W. 2. In his evidence, in Para 5, he admitted that the temple constructed over the bank of pond was donated by Late Smt. Sarjawati for offering prayer to general public at large. There is no obstruction for offering prayer by the villagers. All the villagers used to offer prayer in temple and the villagers from time to time also celebrated the festivals like Rath Yatra and other events are also organized. In Para 6, he admitted that he heard about the theft of the deity from the temple and the villagers after contributing the amount (chanda) have purchased the idol and done ritual of consecration in the temple. He also admitted that villagers give financial help and all the villagers help in meeting expenditure of white washing and maintenance of the temple. He also admitted that Late Shri Dau Kalyan Singh and Late Smt. Sarjawati were issue less and after construction of the temple, it was handedover to Sadhu Maharaj for the purpose of worshiping of deity. The dispute arose when Chandrika Prasad Sharma has sold the land of the 10 / 26 temple and therefore, the villagers have removed Chandrika Prasad Sharma from Pujari and as of now, Dwarika Prasad Dhruw is Pujari.
Shankarlal is examined as P.W.3, Jawaharlal Verma is examined as P.W.4. In cross-examination, he admitted that villagers offered worships in the temple.
18. The defendants have also submitted 15 documents in support of their pleadings including the registered sale-deed. Copy of the revenue entries i.e. Kisan Kitaab/Rin pustika is enclosed as Exhibit - D/15 and they have examined Dwarika prasad Dhruw as D.W.1. He admitted that the name of Sarwarkar Vishwamurti Ratiram, Radhika Prasad is recorded as Sarwarkar. In Exhibit - D/1, mutation is dated 30.05.2008. He also stated that the temples are being managed along with the land attached to the temple by the village panchayat. However, he has not produced any documents. He has sated that after construction of the temple by late Smt. Sarjawati, after the first worship of the deity, it was handed over to the villagers, but no document has ben placed in this regard.
19.The defendants examined Sadhu Ram Sahu as D.W.2 and Sarjuram Yadu as D.W.3, Sumitra Bai as D.W.4. From the evidence available on record, it is apparent that there is no document of registration of temple as public trust. None of the parties have submitted documents showing the amount collected or income received and used for managing of the affairs of the temple. In absence of any specific proof brought in evidence to show managing the affairs of the temple either by Chandrika Prasad Sharma from the income of the temple or the amount collected by the villagers. The Court has to consider the entire evidence on its face as stated by the witnesses orally and to arrive at a conclusion as to whether the temple is being used for worship by the general public or whether it is 11 / 26 restricted for the private persons and further, that the nature of the temples are the public temples or private temples.
20.From the evidence of Sadhu Ram Sahu D.W.2, it is apparent that there is no restriction in any manner for the general public to offer prayer. The general public is offering prayer. They were celebrating the festivals from time to time. He further admitted that the villagers collected the fund to purchase the idol after theft of the deity of the temple for its establishment and further, there is contribution and help of the villagers for maintaining the temple. It has also come that the lands have been sold by the Sarwarakar Chandrika Prasad Sharma with due permission of the Collector with certain conditions i.e. to maintain the accounts, produce the expenditure account before the Collector, Raipur, to purchase the land from the remaining amount of funds, after renovation of temple. However, Chandrika Prasad Sharma has not accounted the receipt from the sale of the property. Chandrika Prasad Sharma P.W.1 has admitted that in the order granting permission to sell the land, there was a direction of the Collector, Raipur to get the temple registered. The application for permission was submitted as name of the Collector is mentioned as Manager of the temple and the other lands attached to the temple.
21.Undisputedly, name of the Collector, Raipur is entered in the revenue records as manager of the lands and properties attached thereto prior to the engagement of Chandrika Prasad Sharma as the Sarwarakar.
Chandrika Prasad Sharma was appointed as Sarwarakar vide Exhibit -
P/1. The order of Tehsildar is dated 17.07.1998, in the said order, there is mention that the name of the Collector as Manager recorded in the revenue records, will remain as it is, from which, it is apparent that on the date of appointment of Chandrika Prasad Sharma, he was aware about the status of the Collector in the temples and lands attached thereto as 12 / 26 Manager. However, he accepted the said order and has not challenged the same till the date of filing of the civil suit on 22.08.2008 for eleven years.
22. Hon'ble Supreme Court in the case of Goswami Shri Mahalaxmi Vahuji Vs. Ranchhoddas Kalidas & Ors. (1969) 2 SCC 853 while considering the challenge of the findings recorded by the High Court that the suit properties were to be of a public religious trust, in the facts therein has considered the character of particular temple to be decided on the basis of various circumstances and observed thus:-
"15. Though most of the present day Hindu public temples have been founded as public temples, there are instances of private temples becoming public temples in course of time. Some of the private temples have acquired a great deal of religious reputation either because of the eminence of its founder or because of other circumstances. They have attracted large number of devotees. Gradually in course of time they have become public temples. Public temples are generally built or raised by the public and the deity installed to enable the members of the public or a section thereof to offer worship. In such a case the temple would clearly be a public temple. If a temple is proved to have originated as a public temple, nothing more is necessary to be proved to show that it is a public temple but if a temple is proved to have originated as a private temple or its origin is unknown or lost in antiquity then there must be proof to show that it is being used as a public temple. In such cases the true character of the particular temple is decided on the basis of various circumstances. In those cases the courts have to address themselves to various questions such as:
(1) Is the temple built in such imposing manner that it may prima facie appear to be a public temple? (2) Are the members of the public entitled to worship in that temple as of right;
(3) Are the temple expenses met from the contributions made by the public?
(4) Whether the Sevas and Utsavas conducted in the temple are those usually conducted in public temples?13 / 26
(5) Have the management as well as the devotees been treating that temple as a public temple?
16. Though the appearance of a temple is a relevant circumstance, it is by no means a decisive one. The architecture of temples differs from place to place. The circumstance that the public or a section thereof have been regularly worshipping in the temple as a matter of course and they can take part in the festivals and ceremonies conducted in that temple apparently as a matter of right is a strong piece of evidence to establish the public character of the temple. If votive offerings are being made by the public in the usual course and if the expenses of the temple are met by public contribution, it is safe to presume that the temple in question is a public temple. In brief the origin of the temple, the manner in which its affairs are managed, the nature and extent of gifts received by it, rights exercised by the devotees in regard to worship therein, the consciousness of the manager and the consciousness of the devotees themselves as to the public character of the temple are factors that go to establish whether a temple is a public temple or a private temple. In Lakshmana v. Subramania the Judicial Committee was dealing with a temple which was initially a private temple. The Mahant of this temple opened it on certain days in each week to the Hindu public free to worship in the greater part of the temple, and on payment of fees in one part only. The income thus received by the Mahant was utilised by him primarily to meet the expenses of the temple and the balance went to support the Mahant and his family. The Privy Council held that the conduct of the Mahant showed that he had held out and represented to the Hindu public that the temple was a public temple at which all Hindus might worship and the inference was, therefore, that he had dedicated it to the public. In Mundancheri Koman v. Achutan Nair, the Judicial Committee again observed that the decision of the case would depend on the inferences to be derived from the evidence as to the way in which the temple endowments had been dealt with and from the evidence as to the public user of the temples. Their Lordships were satisfied that the documentary evidence in the case conclusively showed that the properties standing in the name of the temples belonged to the temples and that the position of the manager of the temples was that of a trustee. Their Lordships further added that if it had 14 / 26 been shown that the temples had originally been private temples they would have been slow to hold that the admission of the public in later times possibly owing to altered conditions would affect the private character of the trusts. In Deoki Nandan v. Murlidar, this Court observed that the issue whether a religious endowment is a public or a private one is a mixed question of law and fact, the decision of which must depend on the application of legal concepts of a public and private endowment to the facts found. Therein it was further observed that the distinction between a public and private endowment is that whereas in the former the beneficiaries which meant the worshippers are specific individuals and in the later the general public or class thereof. In that case the plaintiff sought to establish the true scope of the dedication from the user of the temple by the public. In Narayan Bhagwant Rao Gosavi Balajiwale v. Gapal Vinayak Gosavi and Others, this Court held that the vastness of the temple, the mode of its construction, the long user of the public as of right, grant of land and cash by the rulers taken along with other relevant factors in that case were consistent only with the public nature of the temple.
28. There is clear, consistent and reliable evidence to show that Vallabha Sampradayees have been worshipping in the suit temple as of right. There is also evidence to show that the temple has all along been primarily maintained from the contributions made by the devotees belonging to the Vallabha School. The suit temple appears to be an important temple attracting a large number of devotees. Utsavas and other festivals are performed in that temple in a reasonably grand scale. The devotees as well as the Maharaj were treating that temple as a public temple. From the facts proved we have no hesitation in agreeing with the High Court that the temple in question is a public temple."
23. Decision in the case of State of Madhya Pradesh & Ors. Vs. Pujari Utthan Avam Kalyan Samiti and Anr. (2021) 10 SCC 222 relied upon by the learned senior counsel for the appellant, wherein, the challenge was to the circulars issued by the State Government dated 21.03.1994 and 07.06.2008 whereby, the names of Pujaris' were ordered to be deleted from the revenue records. The writ petition filed by the affected 15 / 26 Pujaris' were allowed and and circulars were quashed. In intra-court appeal against the aforementioned findings, the High Court referred to the decision of the Division Bench in the case of State of Madhya Pradesh Vs. Ghanshyam Das wherein, the Court inter-alia held that the Pujari had no right to alienate the the properties of the temple, they have rights only with respect to either cultivate the land or get it cultivated through servants. If the temple is managed by the Pujari, then, keeping in view the law laid down by this Court from time to time, his name is required to be mentioned as Pujari along with the name of deity. The order of Division Bench was put to challenge in an appeal before the Hon'ble Apex Court. The Hon'ble Apex Court taking note of the facts of the case had also considered the decision in the case of Deoki Nandan Vs. Murlidhar AIR (1957) SC 133 wherein, the Hon'ble Supreme Court has observed thus:
"4. The question that arises for decision in this appeal whether the Thakurdwara of Sri Radhakrishnaji at Bhadesia is a public endowment or a private one is one of mixed law and fact. In Lakshmidhar Misra v. Ranga Lal [(1949) LR 76 IA 271] in which the question was whether certain lands had been dedicated as cremation ground, it was observed by the Privy Council that it was "essentially a mixed question of law and fact", and that while the findings of fact of the lower appellate court must be accepted as binding, its "actual conclusion that there has been a dedication or lost grant is more properly regarded as a proposition of law derived from those facts than as a finding of fact itself". In the present case, it was admitted that there was a formal dedication; and the controversy is only as to the scope of the dedication, and that is also a mixed question of law and fact, the decision of which must depend on the application of legal concepts of a public and a private endowment to the facts found, and that is open to consideration in this appeal.
7. When once it is understood that the true beneficiaries of religious endowments are not the idols but the worshippers, and that the purpose of the endowment is the maintenance of that worship 16 / 26 for the benefit of the worshippers, the question whether an endowment is private or public presents no difficulty. The cardinal point to be decided is whether it was the intention of the founder that specified individuals are to have the right of worship at the shrine, or the general public or any specified portion thereof. In accordance with this theory, it has been held that when property is dedicated for the worship of a family idol, it is a private and not a public endowment, as the persons who are entitled to worship at the shrine of the deity can only be the members of the family, and that is an ascertained group of individuals. But where the beneficiaries are not members of a family or a specified individual, then the endowment can only be regarded as public, intended to benefit the general body of worshippers.
In the light of these principles, we must examine the facts of this case. The materials bearing on the question whether the Thakurdwara is a public temple or a private one may be considered under four heads : (1) the will of Sheo-Ghulam, Exhibit A-1, (2) user of the temple by the public, (3) ceremonies relating to the dedication of the Thakurdwara and the installation of the idol with special reference to Sankcalpa and Uthsarga and (4) other facts relating to the character of the temple.
(1) The will, Exhibit A-1, is the most important evidence on record as to the intention of the testator and the scope of the dedication. Its provisions, so far as they are material, may now be noticed. The will begins with the recital that the testator has two wives and no male issue, that he has constructed a Thakurdwara and installed the idol of Sri Radhakrishnaji therein, and that he is making a disposition of the properties with a view to avoid disputes. Clause 1 of Exhibit A-1 provides that after the death of the testator "in the absence of male issue, the entire immovable property given below existing at present or which may come into being hereafter shall stand endowed in the name of Sri Radhakrishnaji, and mutation of names shall be effected in favour of Sri Radhakrishnaji in the Government papers and my wives Mst Raj Kuer and Mst Ram Kuer shall be the Mutawallis of the waqf".
Half the income from the properties is to be taken by the two wives for their maintenance during their lifetime, and the remaining half was to "continue to be spent for the expenses of the Thakurdwara". It is 17 / 26 implicit in this provision that after the lifetime of the wives, the whole of the income is to be utilised for the purpose of the Thakurdwara. Clause 4 provides that if a son is born to the testator, then the properties are to be divided between the son and the Thakurdwara in a specified proportion; but as no son was born, this clause never came into operation. Clause 5 provides that the Mutawallis are to have no power to sell or mortgage the property, that they are to maintain accounts, that the surplus money after meeting the expenses should be deposited in a safe bank and when funds permit, property should be purchased in the name of Sri Radhakrishnaji. Clause 2 appoints a committee of four persons to look after the management of the temple and its properties, and of these, two are not relations of the testator and belong to a different caste. It is further provided in that clause that after the death of the two wives the committee "may appoint my nephew Murlidhar as Mutawalli by their unanimous opinion". This Murlidhar is a divided nephew of the testator and he is the first defendant in this action. Clause 3 provides for filling up of vacancies in the committee. Then finally there is clause 6, which runs as follows:
""If any person alleging himself to be my near or remote heir files a claim in respect of whole or part of the waqf property his suit shall be improper on the face of this deed."
The question is whether the provisions of the will disclose an intention on the part of the testator that the Thakurdwara should be a private endowment, or that it should be public. The learned Judges of the Chief Court in affirming the decisions of the courts below that the temple was built for the benefit of the members of the family, observed that there was nothing in the will pointing "to a conclusion that the trust was a public one", and that its provisions were not "inconsistent with the property being a private endowment". We are unable to endorse this opinion. We think that the will read as a whole indubitably reveals an intention on the part of the testator to dedicate the Thakurdwara to the public and not merely to the members of his family.
The testator begins by stating that he had no male issue. In Nabi Shirazi v. Province of Bengal [ILR (1942) 1 Cal 211, 227, 228] the question was whether a wakf created by a deed of the year 1806 18 / 26 was a public or a private endowment. Referring to a recital in the deed that the settlor had no children, Khundkar J. observed at p. 217:
"The deed recites that the founder has neither children nor grandchildren, a circumstance which in itself suggests that the imambara was not to remain a private or family institution".
Vide also the observations of Mitter, J. at p. 228. The reasoning on which the above view is based is, obviously, that the word 'family' in its popular sense means children, and when the settlor recites that he has no children, that is an indication that the dedication is not for the benefit of the family but for the public.
Then we have clause 2, under which the testator constitutes a committee of management consisting of four persons, two of whom were wholly unrelated to him. Clause 3 confers on the committee power to fill up vacancies; but there is no restriction therein on the persons who could be appointed under that clause, and conceivably, even all the four members might be strangers to the family. It is difficult to believe that if Sheo Ghulam intended to restrict the right of worship in the temple to his relations, he would have entrusted the management thereof to a body consisting of strangers. Lastly, there is clause 6, which shows that the relationship between Sheo Ghulam and his kinsmen was not particularly cordial, and it is noteworthy that under clause 2, even the appointment of the first defendant as manager of the endowment is left to the option of the committee. It is inconceivable that with such scant solicitude for his relations, Sheo Ghulam would have endowed a temple for their benefit. And if he did not intend them to be beneficiaries under the endowment, who are the members of the family who could take the benefit thereunder after the lifetime of his two wives? If we are to hold that the endowment was in favour of the members of the family, then the result will be that on the death of the two wives, it must fail for want of objects. But it is clear from the provisions of the will that the testator contemplated the continuance of the endowment beyond the lifetime of his wives. He directed that the properties should be endowed in the name of the deity, and that lands are to be purchased in future in the name of the deity. He also provides for the management of the trust after the 19 / 26 lifetime of his wives. And to effectuate this intention, it is necessary to hold that the Thakurdwara was dedicated for worship by members of the public, and not merely of his family. In deciding that the endowment was a private one, the learned Judges of the Chief Court failed to advert to these aspects, and we are unable to accept their decision as correct.
(2) In the absence of a deed of endowment constituting the Thakurdwara, the plaintiff sought to establish the true scope of the dedication from the user of the temple by the public. The witnesses examined on his behalf deposed that the villagers were worshipping in the temple freely and without any interference, and indeed, it was even stated that the Thakurdwara was built by Sheo Ghulam at the instance of the villagers, as there was no temple in the village. The trial Judge did not discard this evidence as unworthy of credence, but he held that the proper inference to be drawn from the evidence of PW 2 was that the public were admitted into the temple not as a matter of right but as a matter of grace. PW 2 was a pujari in the temple, and he deposed that while Sheo Ghulam's wife was doing puja within the temple, he stopped outsiders in whose presence she used to observe purdah, from going inside. We are of opinion that this fact does not afford sufficient ground for the conclusion that the villagers did not worship at the temple as a matter of right. It is nothing unusual even in well-known public temples for the puja hall being cleared of the public when a high dignitary comes for worship, and the act of the pujari in stopping the public is an expression of the regard which the entire villagers must have had for the wife of the founder, who was a pardana shin lady, when she came in for worship, and cannot be construed as a denial of their rights. The learned Judges of the Chief Court also relied on the decision of the Privy Council in Babu Bhagwan Din v. Gir Har Saroon [ 'A' (1939) LR 67 IA 1 : AIR 1940 PC 7] as an authority for the position that "the mere fact that the public is allowed to visit a temple or thakurdwara cannot necessarily indicate that the trust is public as opposed to private". In that case, certain properties were granted not in favour of an idol or temple but in favour of one Daryao Gir, who was maintaining a temple and to his heirs in perpetuity. The contention of the public was that subsequent to the grant, the family of Daryao Gir must be held to have dedicated the temple to the public for purpose of worship, and 20 / 26 the circumstance that members of the public were allowed to worship at the temple and make offerings was relied on in proof of such dedication. In repelling this contention, the Privy Council observed that as the grant was initially to an individual, a plea that it was subsequently dedicated by the family to the public required to be clearly made out, and it was not made out merely by showing that the public was allowed to worship at the temple "since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away". But, in the present case, the endowment was in favour of the idol itself, and the point for decision is whether it was a private or public endowment. And in such circumstances, proof of user by the public without interference would be cogent evidence that the dedication was in favour of the public. In Mundancheri Koman v. Achuthan [(1934) 61 IA 405 :
AIR 1934 PC 230] which was referred to and followed in Babu Bhagwan Din v. Gir Har Saroon the distinction between user in respect of an institution which is initially proved to have been private and one which is not, is thus expressed:
"Had there been any sufficient reason for holding that these temples and their endowment were originally dedicated for the tarwad, and so were private trusts, their Lordships would have been slow to hold that the admission of the public in later times, possibly owing to altered conditions, would affect the private character of the trusts. As it is, they are of opinion that the learned Judges of the High Court were justified in presuming from the evidence as to public user, which is all one way, that the temples and their endowments were public religious trusts."
We are accordingly of opinion that the user of the temple such as is established by the evidence is more consistent with its being a public endowment.
(3) It is settled law that an endowment can validly be created in favour of an idol or temple without the performance of any particular ceremonies, provided the settlor has clearly and unambiguously expressed his intention in that behalf. Where it is proved that ceremonies were performed, that would be valuable evidence of endowment, but absence of such proof would not be conclusive against it. In the present case, it is common ground that the consecration of the temple and the installation of the idol of Sri 21 / 26 Radhakrishnaji were made with great solemnity and in accordance with the Sastras. PW 10, who officiated as Acharya at the function has deposed that it lasted for seven days, and that all the ceremonies commencing with Kalasa Puja and ending with Stha pana or Prathista were duly performed and the idols of Sri Radhakrishnaji, Sri Shivji and Sri Hanumanji were installed as ordained in the Prathista Mayukha. Not much turns on this evidence, as the defendants admit both the dedication and the ceremonies, but dispute only that the dedication was to the public.
In the court below, the appellant raised the contention that the performance of Uthsarga ceremony at the time of the consecration was conclusive to show that the dedication was to the public, and that as PW 10 stated that Prasadothsarga was performed, the endowment must be held to be public. The learned Judges considered that this was a substantial question calling for an authoritative decision, and for that reason granted a certificate under Section 109(c) of the Code of Civil Procedure. We have ourselves read the Sanskrit texts bearing on this question, and we are of opinion that the contention of the appellant proceeds on a misapprehension. The ceremonies relating to dedication are Sankalpa, Uthsarga and Prathista. Sankalpa means determination, and is really a formal declaration by the settlor of his intention to dedicate the property. Uthsarga is the formal renunciation by the founder of his ownership in the property, the result whereof being that it becomes impressed with the trust for which he dedicates it. Vide The Hindu Law of Religious and Charitable Trust by B.K. Mukherjea, 1952 Edn., p.
36. The formulae to be adopted in Sankalpa and Uthsarga are set out in Kane's History of Dharmasastras, Volume II, p. 892. It will be seen therefrom that while the Sankalpa states the objects for the realisation of which the dedication is made, it is the Uthsarga that in terms dedicates the properties to the public (Sarvabhutebyah). It would therefore follow that if Uthsarga is proved to have been performed, the dedication must be held to have been to the public. But the difficulty in the way of the appellant is that the formula which according to PW 10 was recited on the occasion of the foundation was not Uthsarga but Prasadothsarga, which is something totally different. 'Prasada' is the 'mandira', wherein the deity is placed before the final 22 / 26 installation or Prathista takes place, and the Prathista Mayukha prescribes the ceremonies that have to be performed when the idol is installed in the Prasada. Prasadothsarga is the formula to be used on that occasion, and the text relating to it as given in the Mayukha runs as follows:
It will be seen that this is merely the Sankalpa without the Uthsarga, and there are no words therein showing that the dedication is to the public. Indeed, according to the texts, Uthsarga is to be performed only for charitable endowments, like construction of tanks, rearing of gardens and the like, and not for religious foundations. It is observed by Mr Mandlik in the Vyavahara Mayukha, Part II, Appendix II, p. 339 that "there is no utsarga of a temple except in the case of repair of old temples". In the History of Dharmasastras, Volume II, Part II, p. 893, it is pointed out by Mr Kane that in the case of temples the proper word to use is Prathista and not Uthsarga. Therefore, the question of inferring a dedication to the public by reason of the performance of the Uthsarga ceremony cannot arise in the case of temples. The appellant is correct in his contention that if Uthsarga is performed the dedication is to the public, but the fallacy in his argument lies in equating Prasadothsarga with Uthsarga. But it is also clear from the texts that Prathista takes the place of Uthsarga in dedication of temples, and that there was Prathista of Sri Radhakrishnaji as spoken to by PW 10, is not in dispute. In our opinion, this establishes that the dedication was to the public.
(4) We may now refer to certain facts admitted or established in the evidence, which indicate that the endowment is to the public. Firstly, there is the fact that the idol was installed not within the precincts of residential quarters but in a separate building constructed for that very purpose on a vacant site.
And as pointed out in Delroos Banoo Begum v.
Nawab Syud Ashgur Ally Khan [(1875) 15 Ben LR 167, 186] it is a factor to be taken into account in deciding whether an endowment is private or public, whether the place of worship is located inside a private house or a public building. Secondly, it is admitted that some of the idols are permanently installed on a pedestal within the temple precincts.
23 / 26That is more consistent with the endowment being public rather than private. Thirdly, the puja in the temple is performed by an archaka appointed from time to time. And lastly, there is the fact that there was no temple in the village, and there is evidence on the side of the plaintiff that the Thakurdwara was built at the instance of the villagers for providing a place of worship for them. This evidence has not been considered by the courts below, and if it is true, that will be decisive to prove that the endowment is public.
(8) It should be observed in this connection that though the plaintiff expressly pleaded that the temple was dedicated "for the worship of the general public", the first defendant in his written statement merely pleaded that the Thakurdwara and the idols were private. He did not aver that the temple was founded for the benefit of the members of the family. At the trial, while the witnesses for the plaintiff deposed that the temple was built with the object of providing a place of worship for all the Hindus, the witnesses examined by the defendants merely deposed that Sheo Ghulam built the Thakurdwara for his own use and "for his puja only". The view of the lower court that the temple must be taken to have been dedicated to the members of the family goes beyond the pleading, and is not supported by the evidence in the case. Having considered all the aspects, we are of opinion that the Thakurdwara of Sri Radhakrishnaji in Bhadesia is a public temple.
24. Hon'ble Supreme Court in the case of Pujari Uthan (Supra) as observed thus:
"33. Another argument was raised that such circulars of the State Government shall be applicable to the public temples and not to the private temples. A bare reading of the circulars does not make out such distinction. However, a temple in a house or which is not open to the public cannot be treated to be a public temple. However, it will be a question in each case whether it is a public temple or a private temple which can be decided in the appropriate proceedings. For the purpose of the present appeal, we find that the circular is applicable to all temples unless a particular temple is able to satisfy the competent forum of it being a private temple.
34. In view of the above observations and discussions, the order of the High Court cannot be 24 / 26 sustained. The Circulars dated 21-3-1994 and 7-6- 2008 cannot be said to be illegal in any manner. The writ petition is thus dismissed and the appeal is allowed.
The Hon'ble Supreme court has allowed the appeal filed by the State of Madhya Pradesh and dismissed the writ petition filed before the High Court of Madhya Pradesh.
25. If, in the light of the aforementioned decision of the Hon'ble Supreme Court, the facts and evidence available on record is to be considered, the learned Trial Court upon appreciation of evidence has recorded the factual finding that the temple is a public temple.
26. In the case of Vishnu Dutt Sharma vs. Daya Sapra, reported in (2009) 13 SCC 729, the Hon'ble Supreme Court was pleased to observe as under:
"8. There cannot be any doubt or dispute that a creditor can maintain a civil and criminal proceedings at the same time. Both the proceedings, thus, can run parallel. The fact required to be proved for obtaining a decree in the civil suit and a judgment of conviction in the criminal proceedings may be overlapping but the standard of proof in a criminal case vis-a-vis civil suit, indisputably is different. Whereas in a criminal case the prosecution is bound to prove the commission of the offence on the part of the accused beyond any reasonable doubt, in a civil suit " preponderance of probability" would serve the purpose for obtaining a decree".
(emphasis supplied)
27. In the case of M. Siddiq (Dead) Through Legal Representatives (Ram Janambhumi Temple Case) vs. Mahant Suresh Das and others, reported in (2020) 1 SCC 1, Hon'ble Supreme Court elaborated the standard of proof in civil cases and held that it is governed by the preponderance of probabilities standard. Hon'ble Court held as hereunder:-
25 / 26"720. The court in a civil trial applies a standard of proof governed by a preponderance of probabilities. This standard is also described sometimes as a balance of probability or the preponderance of the evidence. Phipson on Evidence formulates the standard succinctly: If therefore, the evidence is such that the court can say "we think it more probable than not", the burden is discharged, but if the probabilities are equal, it is not. In Miller v. Minister of Pensions, [Miller v Minister of Pensions (1947) 2 All ER 372), Lord Denning, J.(as the Master of Rolls then was) defined the doctrine of the balance or preponderance of probabilities in the following terms: (All ER p. 373 H) "(1) ... It need not reach certainty, but it must carry a high degree of probability. Proof beyond reasonable doubt does not mean proof beyond the shadow of doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence, "of course it is possible, but not in the least probable" the case is proved beyond reasonable doubt, but nothing short of that will suffice."
(emphasis supplied)
721. The law recognises that within the standard of preponderance of probabilities, there could be different degrees of probability. This was succinctly summarised by Denning, L.J. in Bater v. Bater, 1951 P. 35 (CA) where he formulated the principle thus: (p. 37) "... So also in civil cases, the case must be proved by a preponderance of probability, but there may be degrees of probability within that standard. The degree depends on the subject-matter." (emphasis supplied)
725. The Court recognised that within the standard of preponderance of probabilities, the degree of probability is based on the subject-matter involved.
26 / 26726. In State of U.P. v. Krishna Gopal, [State of U.P. v. Krishna Gopal, (1988) 4 SCC 302 : 1988 SCC (Cri) 928], this Court observed: (SCC p. 314, para 26) "26. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge."
28. From the above decisions it is apparent that the civil cases are to be decided on the basis of preponderance of probability. Inference of preponderance of probabilities can be drawn not only from the materials on record but also by reference to the circumstances upon which he relies.
29.In light of the decisions of the Hon'ble Supreme Court, in the opinion of this Court, I do not find any perversity in the finding recorded by the Trial Court as also, the Appellate Court that the plaintiff temple is a public temple and dismissing the suit filed by the appellant/plaintiff. However, as it is the issue relating to the temple and therefore, the nature of temple would be a public temple.
30.The question of law formulated is decided in negative. Appeal is dismissed. Judgment and decree passed by the learned Appellate Court is upheld.
31.Decree be drawn up accordingly.
Sd/-
(Parth Prateem Sahu) Judge Dey