Himachal Pradesh High Court
Shaunki Ram And Another vs Manoj Kumar And Others on 29 August, 2016
Author: Chander Bhusan Barowalia
Bench: Chander Bhusan Barowalia
HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No. 142 of 2003
Judgment reserved on : 24.08.2016
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Date of decision: 29th August, 2016
Shaunki Ram and another Appellants
Versus
Manoj Kumar and others Respondents
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Coram:
of
The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge
The Hon'ble Mr. Justice
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Whether approved for reporting1 : Yes
For the Appellants :Mr. Lalit Kumar Sharma, Advocate
For the Respondents: Mr. Sanjay Sharma, Advocate
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Chander Bhusan Barowalia, J.
This Regular Second Appeal is maintained by the appellants-defendants against the judgment and decree, dated 27.12.2002, passed by learned District Judge, Mandi in Civil Appeal No. 10 of 2000 whereby the appeal of the appellant has been dismissed and the judgment and decree dated 17.12.1999 passed by learned Civil Judge (Junior Division), Sundernagar in Civil Suit No. 125 of 1995 has been affirmed.
1Whether Reporters of local newspaper are permitted to see the judgment ?
::: Downloaded on - 15/04/2017 21:05:53 :::HCHP 22. Briefly stated facts giving rise to the present appeal are that a suit was maintained by the plaintiffs-respondents (hereinafter referred to as the plaintiff) against the defendants-
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appellants (hereinafter referred to as the defendants) for permanent prohibitory injunction praying that the appellants-defendants be restrained from destroying or defacing "Samadhis" situated on the suit land. A further decree of mandatory injunction was sought of against the defendants to the effect that the defendants be directed not to interfere in the right of the plaintiffs to use the suit land as rt graveyard or to raise "Samadhis" on the suit land or in the worship of Samadhis situated there. As per the plaintiffs, the land comprised in Khewat No. 321, Khatauni No. 613, Khasra No. 33, measuring 913.27 Sq. meters situated in Mohal Purana Bazar, Tehsil Sundernagar, District Mandi, was shown under the ownership of Devki Devi and the possession of the appellants as per the revenue entry for the year 1988-89 is wrong and illegal. In fact the suit land was dedicated by Suket Estate for Samadhis of dead Gosains and the Samadhis of plaintiffs' ancestors and their kith and kins are existing on the suit land. It was also alleged that the suit land was being used by the plaintiffs who actually belongs to Gosains sect for burial of the dead bodies and the revenue authorities have no jurisdiction to record in the revenue papers the present appellants/defendants as non-occupancy tenants. It was ::: Downloaded on - 15/04/2017 21:05:53 :::HCHP 3 further alleged that on 20.5.1995 when appellant No. 1 damaged one Samadhi of the plaintiffs' ancestors and also threatened to remove all the existing Samaghis from the suit land and also tried .
to trespass, an FIR was lodged with Police Station, Sundernagar and subsequently, the suit was preferred before the learned trial Court. The appellants, in written statement taken preliminary objections to the extent that the suit was not maintainable;
of secondly, the plaintiffs had no cause of action to file the present suit and the suit was not validly instituted for the purposes of Court rt fee and jurisdiction. On merits, it was contended that the revenue entries are correct qua the suit land and the land in dispute is being possessed by the appellants whose father late Shri Bardu was recorded as non-occupancy tenant in the revenue record and after his death, possession of the suit land stood reflected in the revenue entry including missal haquiat bandobast jaded.
3. The defendants denied that they had demolished the Samadhi and had caused illegal interference. It was asserted that the suit land is being possessed by them and as such, question of interference does not arise. Learned trial Court allowed suit of the plaintiffs and decreed the suit to the effect that defendants are restrained from interfering in the suit land or to cause damage to the Samadhis or temple.
::: Downloaded on - 15/04/2017 21:05:53 :::HCHP 44. The case of the plaintiff before the trial Court was that the property in dispute is denoted by Khasra No. 33, situated in Muhal Purana Bazar, Tehsil Sundernagar, District Mandi, H.P. .
The said property was dedicated by Suket State for the purpose of using the same as graveyard of "Gosains" sect of Hindu Dharama.
The Samadhis of the ancestors of plaintiffs were being constructed on the suit land. The dead bodies of members of Gosains sect were of also being buried on the suit land. On the Samadhis, a Shivling was being installed and the same was being worshipped by the rt plaintiffs and/or by the members of Gosains sect. Further case of the plaintiff was that the relevant revenue entries showing the possession of the defendants qua the land in dispute is wrong and illegal. Defendant No. 1 was neither the owner of the disputed property nor was he competent to induct tenants over the said land.
The property in dispute is a religious place and as such dispute of tenancy qua the suit land does not arise. It was further alleged that defendants No. 2 and 3 have started causing damage to Samadhis which were situated on the disputed land by taking undue advantage of wrong revenue entries. They were also requested not do so, but in vain.
5. The suit of the plaintiffs was resisted and contested by defendants No. 2 and 3 by filing written statement. Preliminary objections were also raised to the effect that the suit is not ::: Downloaded on - 15/04/2017 21:05:53 :::HCHP 5 maintainable; plaintiffs have no cause of action to file the suit ; that the plaintiffs have no locus standi to file the suit and that the suit is not properly valued for the purposes of Court fee and jurisdiction.
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6. On merits, it was contended that revenue entries are correct qua the suit land. The disputed land was being possessed by defendants No. 2 and 3. The father of defendants No. 2 and 3 was non-occupancy tenant of the said land and after his death, of defendants No. 2 and 3 came in possession of the said land. The existence of Samadhis and/or using the suit land as place of rt worship was also disputed by the contesting defendants. It was also denied that defendants have demolished the Samadhis or were causing illegal interference. It was asserted that the suit land was being possessed by them and as such question of interference did not arise.
7. The parties led oral as well as documentary evidence in support of their case. After closure of the evidence of both the parties and hearing learned counsel for the parties, the following issues were framed by the learned trial Court :-
1. Whether the suit land was dedicated by Suket State for graveyard to Gosains and the Samadhis of plaintiffs' ancestors and their kith and kins are existing on the suit land, as alleged ? OPP ::: Downloaded on - 15/04/2017 21:05:53 :::HCHP 6
2. Whether the revenue entries showing defendant No. 1 as owner and the defendant as tenant is wrong and illegal, as alleged ? OPP
3. Whether defendant No. 1 has no right to create permanent .
tenancy over the suit land, as alleged ? OPP
4. Whether defendants No. 2 and 3 are causing interference in the suit land and are damaging Samadhis etc. existing there, as alleged ? OPP
5. Whether the suit is not maintainable in the present form, as alleged ? OPD of
6. Whether the plaintiffs have no cause of action ? OPD
7. Whether the plaintiffs have no locus standi to file the
8.
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present suit, as alleged ? OPD
Whether the suit is not property valued for the purpose of Court fee and jurisdiction, as alleged ? OPD
9. Relief.
The learned trial Court, after giving findings on issues No. 1 to 4 in favour of the plaintiffs and issues No. 5 to 9 against the defendants, decreed the suit of the plaintiffs.
8. Feeling aggrieved by the judgment and decree of the learned trial Court, the defendants maintained an appeal before the learned District Judge, Mandi and the learned District Judge, Mandi dismissed the suit vide the impugned judgment and decree, dated 27.12.2002. Hence the present appeal.
9. The appeal was admitted on 17.4.2003 on the following substantial questions of law:-
::: Downloaded on - 15/04/2017 21:05:53 :::HCHP 71. Whether the Civil Court has jurisdiction to adjudicate upon the dispute about the status of a person as a tenant under the H.P. Tenancy and Land Reforms Act, 1973 ?
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2. Whether the suit for permanent prohibitory injunction is maintainable in the event when the possession over the suit land is admitted by the plaintiffs themselves and whether the Civil Court is competent to pass the direction to the Revenue of entries in the absence of suit for declaration ?
3. Whether the learned Courts below have mis-construed, mis-
rt directed the Ext. P-10, P-9 and Ext. D-1 and has not appreciated in its true perspective ?
4. Whether the benefit flow from Section 104 of the H.P. Land Revenue Act, 1972 with respect to the question of ownership by the operation of law qua the appellants can be taken away by the act of the plaintiffs by approaching the Civil Court ?
10. I have heard learned counsel for the parties and also gone through the record.
11. Learned counsel for the appellant has argued that the suit for injunction was not maintainable without claiming possession and the learned Courts below has erred in decreeing the suit of the plaintiffs. He has further argued that tenancy rights were involved and, therefore, the suit was otherwise also not maintainable. To support his arguments, he has relied upon the law ::: Downloaded on - 15/04/2017 21:05:53 :::HCHP 8 as settled in Sat Pal Vs. Devi Chand and another 1997(1) S.L.J. 865 ; Vishwanath Sitaram Agrawal Vs. Sau. Sarla Vishwanath Agrawal AIR 2012 SC 2586 ; Anokhi Ram Vs. Harnam Singh .
2012 (1) SLC 342 ; Dharam Singh and others Vs. Prem Singh and others 2001 (2) HLJ 688 ; Hukma alias Hukaman Vs. Pishori Lal and others 1970 P.L.J. 739.
12. Learned counsel, on the other hand, has argued that of the appeal is not maintainable as the judgment and decree has attained finality as far as Smt. Vidya Devi and Smt. Devku Devi rt are concerned as the findings are not under challenge by these two defendants before this Court and even Smt. Devku Devi has not filed appeal before the learned first Appellate Court nor she was party before the learned first Appellate Court. He has further argued that it is admitted by the witnesses of defendants that there was Samadhis and temple on the disputed land and this goes to show that the plaintiffs were in possession of the suit land. As far as revenue entries are concerned, presumption of truth attached to those entries stand rebutted by leading cogent evidence and so the judgment and decree passed by the learned Courts below are just and reasoned. He has further argued that bodies lying in the Samadhis and the idol in the temple which represent Lord Shiva, the Almighty, is to be taken as minor as far as litigation is concerned and so the judgment and decree passed by the learned ::: Downloaded on - 15/04/2017 21:05:53 :::HCHP 9 Court below is just reasoned. To support his arguments, learned counsel has relied upon a judgment of Hon'ble Supreme Court reported in Anathula Sudhakar Vs. P. Buchi Reddy (dead) by .
LRs and others (2008) 4 SCC 594 ; and Roshan Lal and others Vs. Nanda Deva Temple and others, 1999 (2) SLJ 1536.
13. To appreciate arguments of learned counsel for the parties I have gone through the record in detail.
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14. The parties led oral as well as documentary evidence to support their rival contentions. The essential documents, which rt have been placed on record by the parties, are copies of jamabandis, Misal Haquiat for the year 1978-79. The first and foremost copy of jamabandi relates to the year 1978-79 pertaining to the suit land which has been admitted in evidence as Ex. P1. A perusal of the said document shows that the owner of this property was Suket State and its "Malgujar" was "Mandir Math". The possession of the property in dispute was with the temple. Hence, it is evident on record that original owner of the property in dispute was Suket State and the possession of this property was with the temple and existence of "Math" was there as per the entry column No. 7 The aforesaid entries were subsequently carried in copy of jamabandi Ex. P-3 pertaining to the year 1991-92. Thereafter in the year 1999-2000 Khasra No. 899 remained in possession of the temple, but one Uttam, son of Sidhu came to possess Khasra No. ::: Downloaded on - 15/04/2017 21:05:53 :::HCHP 10 898 as tenant. These facts are evident from the copy of jamabandi Ex. P-4. It is worthwhile to mention that "Mandir Math" became absolute owner of the property in dispute subsequently as per the .
copy of jamabandi for the year 1958-59 Ex. P-7. Significantly, defendant Devki has been shown to be tenant over the property in dispute. The column No. 9 of this jamabandi clearly reflects that rent was not to be paid by defendant Devki Devi and that her of possession was in lieu of services being rendered by her to the Temple. The settled position is that a person who is in possession rt of the land belonging to a Temple/Deity in lieu of the services rendered to the Temple, he cannot claim adverse right to the detriment of temple or idol. In this case Smt. Devku extinguished the rights of the temple and came to own the property in dispute as absolute owner. These facts are clear from a bare perusal of the copy of Misal Haquiat Bandobast Ex. P-8. The predecessor of defendants No. 2 and 3 is inducted as tenant over this land. It is note-able to mention here that Samadhis as well as temple are existing on a part of the suit land as is evident from the perusal of jamabandi Ex. P-10 for the year 1994-95. A perusal of the aforesaid documents clearly shows that the disputed property belongs to temple and admittedly temple/Math is a minor. Smt. Devku was not competent to acquire ownership rights qua the property in dispute which has resulted in extinguishing the rights ::: Downloaded on - 15/04/2017 21:05:53 :::HCHP 11 of the temple nor was she competent to induct tenant over the said property. The nature of the property in dispute also reveals that the Samadhis as well as Temple are in existence over the portion of the .
suit land. Therefore, the act of defendant Devku to acquire ownership right qua the suit land and subsequently inducting the Bardu as tenant cannot be said to be tenable in the eyes of law. It is clear from cross examination of defendant Nagnu that he has of admitted the existence of Samadhis on a portion of the suit land.
He has not been able to state on oath as to how his father came into rt possession of the suit land as tenant nor he has been able to show who inducted him as tenant in the suit land. Significantly, defendant Devku has not come into witness box nor she has contested the claim of the plaintiffs. The Oral evidence having been led on record by Manoj Kumar, PW-1 and his witnesses Shivgiri and Jogeshwar showing property in dispute to be place of Temple and Samadhis is required to be believed as defendant No.1, could not rebutted the aforesaid evidence having been led on record by the plaintiffs.
15. Resultantly, taking into consideration the oral as well as documentary evidence having been led by the parties, it is clear that the disputed property is a place of temple/Samadhis of Gusain sect of Hindu and that defendants cannot claim adverse right in the said property to the detrimental of temple/Math.
::: Downloaded on - 15/04/2017 21:05:53 :::HCHP 1216. From the above discussion, it is clear that in the disputed land, there are Samadhis/temple of Gosains sect of Hindu religion. It is only when the defendants started interfering in the .
suit land in the year 1995 with the help of tractor that an FIR was lodged by the plaintiffs against the defendants and ultimately, a suit was filed to protect their rights. It has also come on record that the defendant while appearing in the witness box as DW_1 has of stated that he does not know the extent of the area. He admitted that there are Samadhis on the suit land. He also admitted that a rt criminal case was instituted against them for damaging Samadhis in the year 1985. He further could not prove on record what was the rent he was paying. At the same point of time, DW-2 has admitted that the Samadhis are there on the suit land and there is temple on the suit land. In Vishwanath Sitaram Agrawal Vs. Sau. Sarla Vishwanath Agrawal AIR 2012 SC 2586, it has been held that if the findings are perverse, the regular second appeal lies.
This judgment is not applicable to the facts of the present case as this Court has not come to the conclusion that findings of learned Court below are perverse as it is admitted by the defendants that Samadhis of the ancestors of the plaintiffs were existing on the suit land. In Anokhi Ram Vs. Harnam Singh 2012 (1) SLC 342, it has been held that if there is mis-interpretation of pleadings and misconstruction of evidence, the regular second appeal lies, but in ::: Downloaded on - 15/04/2017 21:05:53 :::HCHP 13 the present case, this Court finds that the evidence as well as the pleadings are properly appreciated by the learned Courts below and so this judgment is not applicable to the facts of the present case.
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In Dharam Singh and others Vs. Prem Singh and others 2001 (2) HLJ 688, it has been held that jurisdiction to resolve the dispute inter se the tenant and landlord not lies in the Civil Court.
In the present case, there is no dispute with respect to the landlord of or tenant inter se the parties, but the dispute is simplicitor with respect to the rights of the plaintiffs to protect the Samadhis of rt their ancestors lying on the suit land alongwith a temple and their rights of burial in the suit land being the disciple of Gosains sect under the Hindu religion. So, this judgment is not applicable to the facts of the present case. At the same point of time in Roshan Lal and others Vs. Nanda Deva Temple and others, 1999 (2) SLJ 1536, it has been held as under:-
"11. If that be the position with reference to the nature and character of the property, could the 2nd defendant have been lawfully conferred with any rights of proprietorship/owernship of the 2 Biswas of land in question and as to what is the sanctity, legality and validity of the proceedings of the year 1976 wherein such proprietory rights came to be recognized and conferred in the 2nd defendant in respect of the 2 Biswas of land in question. The very revenue records marked in evidence in this case, the credibility and propriety of which is not and cannot also be challenged, they ::: Downloaded on - 15/04/2017 21:05:53 :::HCHP 14 being records maintained in the normal course of officials discharge of business, disclose that the property in question is an uncultivable one having regard to the constructions situated thereon. Even that apart, a person who has come to .
possess the land belonging to the deity under the capacity of being a person appointed by whomsoever to perform Pooja in the temple to enjoy the property in lieu of remuneration for such performance of Pooja, cannot claim any adverse rights to the detriment of the idol. The position of law in this regard does not admit of any doubts or controversy and the of rights of the idol to its property cannot be defeated by such person by committing any act of breach of trust or any rt person claiming through such person by pleading any bar of limitation or any other claim of adverse possession. In this case, on the factual materials on record not only the land does not appear to be one in respect of which the provisions of the Act could be said to be attracted to claim any acquisition of proprietory rights but even if the land is one, which falls within the four corners of the Act by virtue of the provisions contained in Section 104 to which a reference has been made by the learned First Appellate Judge, the 2nd defendant could not have been conferred with any proprietory rights or ownership rights and in such proceedings even if passed in utter disregard of the prohibition contained in the statute itself would be ab initio void and non-est for all purposes and in such case the jurisdiction of the civil Court to deal with the legality and propriety of such grant in a suit for declaration of title of the idol could not be denied or defeated at the instance of at any rate persons like the defendants No. 2 and 3. It has been held ::: Downloaded on - 15/04/2017 21:05:53 :::HCHP 15 by their Lordships of the Apex Court in a decision reported in Biswanath and another Vs. Sri Thakur Radha Ballabhjit and others, AIR 1967 S.C. 1044, that a suit filed by an idol for declaration of title and possession of property .
from a person who is in illegal possession is maintainable at the instance of even a worshipper even dehore section 92 of the Code of Civil Procedure and all the more so, when the person, who was holding possession of such property under the guise and garb of being a Shebair/Pujari has acted adversely to the interest of the deity to grab its property."
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17. In the present case also, the property belongs to the idol in the temple as well as the ancestors of the plaintiffs who are rt lying in the Samadhis after their so called death and so the judgment is fully applicable to the facts of the present case and the judgment and decree passed by the learned Court below is as per law.
18. At the same point of time, one of the defendants, Smt. Vidya Devi was deleted in this Court by the appellants. So far as findings recorded by the learned Court below qua Smt. Vidya Devi, those have attained finality. Further, Smt. Devku Devi, who was defendant No. 1 in the learned Court below and through whom the present appellants are claiming title, has not filed any appeal before the learned first appellate Court or before this Court. The net result of the above discussion is that the findings, as recorded by the learned Courts below are just reasoned after appreciating the ::: Downloaded on - 15/04/2017 21:05:53 :::HCHP 16 material which has come on record in its true perspective as discussed above question No. 1 of law, as framed by this Court, is answered holding that as there was no dispute with respect to the .
tenancy inter se the landlord and tenant or the rights of the tenant involved in the present lis, the learned Court below exercised the jurisdiction as per law.
19. Question No. 2 is answered holding that it has come of on record that temple and Samadhis were in existence alongwith rights of the plaintiffs to give Samadhis to the members of their rt community living in this world in the disputed suit land. So this Court answers the question that plaintiffs were in possession of the suit land. Ex. P-10, P-9 and D-1 are correctly interpreted by the learned Court below when the learned Court below has concluded that the possession of the plaintiffs is there on the suit land and their Samadhis exist there and there are entries to that effect as well also the same fact is admitted by defendants in the Court. So question No. 3 is answered holding that Exs. P-10, P-9 and D-1 are correctly appreciated and interpreted by the learned Court below.
20. Question No. 4 is answered holding that as there was no lis inter se the tenant and the landlord and the only question to be determined was whether the defendants have a right to restrain the plaintiffs from damaging the Samadhis on the suit land and ::: Downloaded on - 15/04/2017 21:05:53 :::HCHP 17 they are liable to be restrained from interfering in the suit land in any manner, so the suit was rightly maintainable in the learned Court below and the findings recorded by the learned Court below .
are just reasoned and after appreciating the facts and law in its true perspective.
21. In view of the above discussion, there is no merit in this appeal and the same is liable to be dismissed and is of accordingly dismissed. However, in the facts and circumstances of the case, the parties are left to bear their own costs.
rt 29th August, 2016(K) ( Chander Bhusan Barowalia ), Judge ::: Downloaded on - 15/04/2017 21:05:53 :::HCHP