Uttaradi Srivaishnava Mutt Moola Mutt vs The Collector, on 30 April, 2022

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Andhra Pradesh High Court - Amravati

Uttaradi Srivaishnava Mutt Moola Mutt vs The Collector, on 30 April, 2022

Bench: D.Ramesh

              THE HONOURABLE SRI JUSTICE D.RAMESH

                    APPEAL SUIT No.361 Of 2012
ORDER:

1. Heard Sri Y.V. Ravi Prasad, senior counsel appearing for Sri P.Rajasekar, learned counsel for the appellant and of Sri T.Laxmi Narayana, counsel appearing for Sri Dorai Raj, learned counsel for the respondents.

2. The appellant herein is plaintiff-Mutt filed the present appeal, aggrieved by the decree and judgment in O.S.No.439 of 2005 dated 10.04.2012 passed by the Additional Senior Civil Judge, Tirupati.

3. For sake of convenience, the appellant herein is referred to be as plaintiff and the respondents herein referred to be as defendants. The brief facts of the case and observations of the court below are as follows:

4. The plaintiff is a Mutt. The plaintiff filed a suit for declaration of plaint schedule properties 'A' and 'B' as they are the absolute properties of the plaintiff-Mutt and for granting permanent injunction, restraining the defendants not to interfere with peaceful possession and enjoyment of the suit properties.

5. The case of the plaintiff is that- Uttaradhi Srivaishnava Mutt popularly known as Moola Mutt has been in existence for the past 100 years in Tirumala. Mutt was started with an intention to meet the needs of Vaishnava cult. The idols of Lord Srirama, Lord Seetha, Lord Lakshmana and Lord Anjaneya were consecrated in the said Mutt and that Nithya Deepa, Naivedya Aradhana are 2 being performed to the deities. The pilgrims visited Tirumala would necessarily come to the Moola Mutt and worship deities and the Mutt is also providing free meals and free accommodation to the pilgrims and Sadhus. One Poojari, five Sadhus and five attenders are permanently staying in the Moola Mutt to look after the affairs. The founder of the Mutt his Holiness Mahant Ramnarayanacharya Swamiji strived for development. In the year 1912, two properties were gifted by Jagannadha Ramanujadass under gift deeds dated 07-03-1912 and 17-03-1912 and third property was gifted by Sri Rama Swaroop Agarwal under gift deed dated 12-02-1912.

6. In the year 1925, Swamiji Ramnarayanacharyaji as grantor executed a deed on 10-12-1925 and settled the above properties to the Swamiji Badri Papannacharyaji as successor to the trust and carry on the object of Moola Mutt, he was possession and enjoyment of the same. In the year 1957, the said Swami Badri prapannacharyaji executed a Will on 4-7-1957 appointing Swamiji Harivamshacharya as his lawful descendant and owner of the movable and immovable properties under his control. Sri Swamiji Badri Prapapnnacharya died on 02-08-1957 since then Swamiji Harivamshacahariji being the legal successor took possession of the Mutt properties and he is exclusive possession and enjoyment of the same.

7. Subsequently, some of the properties were acquired by the Land Acquisition Officer of Tirumala Tirupati Deasthanams for widening of the roads in Mada Streets, Tirumala and other 3 purposes and that the Tirumala Tirupati Devasthanam given "A" and "B" schedule properties on 15.03.1999 and on 19-10-2004. With the approval of the competent authority of Tirumala Tirupati Devasthanam said Moola Mutt was constructed and idols of Lord Lakshmi Narasimha Swamy, Lord Srirama, Lord Seetha, Lord Lakshmana and Lord Anjaneya were reinstalled by conducting religious rites and also constructed rooms with the donations of devotees. Sundareswar Acharya was the General Power of Attorney holder of the Mutt and his name was mentioned in the electricity bills and that the bills are being paid towards Mutt.

8. While that being position, the 1st defendant has appointed the 2nd defendant as a new Manager and in charge of the Moola - Mutt in place of existing General Power of Attorney of the plaintiff on 11-08-2005 with malafide intention to harass the plaintiff. Another letter was issued by the 1st defendant to the Executive Officer, Tirumala Tirupati Devasthanam stating that the Government of Madhya Pradesh superseded the Managing Committee of Lakshman Bagh Sansthan, Rewa, Madhya Pradesh and removed Sri Harivamshacharya from the post of Mahanth of Lakshman Bagh Sansthan, Rewa. The District Collector, Rewa appointed as administrator of Lakshman Bagh Sansthan, Rewa including the Moola Mutt, Tirumala.

9. The plaintiff/appellant herein has submitted reply to the letter sent by District Collector, Rewa dated 27.10.2005 stating that the plaintiff Mutt, is not vested with the Lakshman Bagh Sansthan, Rewa and that the defendants have no right over the 4 said properties. Even according to the agreement entered between the State Government of Madhya Pradesh and the committee constituted under the State Government, the properties and group temples under the management and control of the committee was clearly specified. The properties gifted to the plaintiff's Mutt are not covered by the said agreement.

10. The second defendant under the guise of the orders dated 27.05.2005 interfering with the activities of the plaintiff/appellant influencing the Tirumala Tirupati Devasthanam officials and revenue officials of Chittoor, so also requesting help of the local police officers to take possession of the plaint schedule properties. When they made attempts to dispossess and to take possession of the schedule properties on 06-11-2005 at about 10-00 a.m. by the 2nd defendant, the plaintiff resisted their acts. Hence, the plaintiff prayed to grant permanent injunction against the defendants.

11. Refuting the said averments, the defendants have filed their written statement. According to the written statement, said Moola Mutt in Tirumala has been in existence for the past several years to meet the needs of Uttaradi Srivaishnava devotees come from North India. The plaintiff -Mutt is part and parcel of parental Mutt by name Lakshman Bagh Sansthan with the head quarters of Rewa in Madhya Pradesh. In view of the document executed on 10.12.1925 by Sri Ramnarayanacharyaji in favour of the Badriprapanna charyaji to succeed Mahanthship to manage the properties clearly shows that the Management of properties were entrusted and not as the personal properties of any of them. Badri 5 Prapannacharyaji succeeded by Swami Janardhanacharyaji and executed a Will dated 4-7-1957 by naming his successor Harivamshacharya who became the Mahanth against the custom, usage and tradition of succession to the Mahanthship and the said Will is only valid to the extent of power nomination of Harivamshacharya by Sri Badrapapannacharyaji and cannot effect the title of the properties mentioned in the will.

12. Rewa was princely State of Central India. From times immemorial Lakshmanji was being worshiped as God in that region. A temple of Lakshmanji was built in Rewa by the then Maharaja Viswanath Singh and the place was named as Lakshmanbagh. The successor, Maharaja Raghurajsingh dedicated certain villages and huge properties to Lakshmanbagh and his Rajaguru Swamy Mukundacharya was installed as head of that institution. He was the first spiritual Guru of Lakshmanbagh, after the death of Swamy Mukundacharya, Sri Lakshmipapanna charya succeeded him; Swamy Lakshmipapanna charya was removed from his office for some time by the Ruler and again reinstated by the Ruler Maharaja Gulab Singh on 6-7-1945 on condition that he would manage the institution properly and shall have right to appoint another manager with the consultation of the Minister-in-charge. Thereafter he has executed a Will on 4-7- 1957 nominating Harivamshacharya as successor and died on 2-8-1957. In the year 1920, the Management of Lakshmanbagh Samsthan was in the hands of committee appointed by Darbar. Swamy Badrapapannacharyaji was one of its members. 6 Subsequently agreement dated 30-3-1954 arrived between the President of India and Chairman and members of the Committee. After the death of Badriprapannacharyaji the state Government of Mahdya Pradesh appointed Swamy Raghavacharya as Mahanth of Lakshmanbagh vide orders dated 20.10.1958. The said appointment was challenged by Harivamshacharya asserting his rights styling himself as Mahanth of Samsthan and challenged the power of State Government to appoint Mahanth. The trial court dismissed the said suit, on the file of the I Additinal District Judge, Rewa and numbered as Civil Suit No.7A/1971 holding that Harivamshacharya is a family man and not a Virkth and celibate, which is pre-requirement to become as Mahanth of Samsthan. Harivamshacharyaji aggrieved by the judgment, filed an appeal before the High Court of Madhya Pradesh at Jabalpur and the same was numbered as Appeal No.260/1973 filed against the Judgment in Civil Suit No.7A/1971, which was dismissed with clear observation that he was not eligible to appoint as Head of the Samsthan. Consequently his claim for Mahanthship was denied to him. The committee appointed by the State Government, in which the Mahanth of Lakshmanbagh is a member is only entitled to manage the temple/Mutt and their properties with the help of members of the committee and not otherwise.

13. The Madhya Pradesh Government Dharmik Nyaya and Dharmaseva Department in proceedings No.F.7/50/2000/DHHA the said Harivamshacharyaji was removed from Mahanthship of Lakshmanbagh, dated 27.01.2005, on that the Collector, Rewa 7 addressed a letter to Principal Secretary, Madhya Pradesh Government, who is the 1st defendant, for take over the charge of Lakshmanbagh Sansthan, which is under the custody of Madhya Pradesh Government.

14. In view of the said proceedings, the plaintiff is not a Mahanth, he is only a care taker of Samsthan appointed by Harivamshacharyaji, and said Harivamshacharya was removed by both Judicial pronouncement and the State Endowment Department, his General Power of Attorney came to an end by removal of Harivamshacharya and that the plaintiff has no locus standi to file this suit.

15. As the plaintiff is in possession and enjoyment of the plaint schedule property only as care taker of Samsthan, appointed by Harivamshacharyaji, who is removed for misfeasance and the other allegation that the suit properties are not covered by the agreement dated 30-3-1954, and that the defendants are influencing revenue officials as well as police officials, to take over the possession and control of the Mutt is denied. Action taken by the defendant is under the authority given by the statutory body and Government control. The plaintiff is in illegal occupation, ever since the removal of Harivamshacharya as a Mahanth of Lakshmanbagh Samsthan, under his G.P.A. the plaintiff cannot resist the claim of the defendants. Hence, requested to dismiss the suit with the above pleadings.

16. In support of the pleadings, Exs.A1 to A18 were marked on behalf of the plaintiff/appellant, Exs.B1 to Ex.B31 were marked on behalf of the defendants.

17. Basing on the above pleadings, learned judge in the court below has framed the following issues:

1. "Whether the plaintiff is entitled for declaration that he is the absolute owner of the plaint "A" and "B" schedule properties?

2. Whether the plaintiff is entitled for permanent injunction as prayed for ?

3. Whether the suit is maintainable without notice under Section 80 of the C.P.C.?

4. Whether this court has got jurisdiction to decide the plaintiff's claim for Mahanthship?

5. Whether this court has got pecuniary jurisdiction to entertain the suit?

6. To what relief?"

18. While considering the issue No.1, the court below strangely held that the plaint-Mutt is a part of Lakshmanbagh Samsthan, by taking contents of Para No.11 of the plaint that the plaintiff is in possession and control of various other Mutt and properties spread in other parts of India and also holding the post of Mahanth of Lakshmanbagh Sansthan, Rewa District, Madhya Pradesh. Hence, said plea clearly and clinchingly goes to show that the Mahanth appointed to Lakshman Bagh Sansthan, Rewa District, Madhya Pradesh is also Mahanth of the plaintiff Mutt. If really the plaintiff Mutt is an independent Mutt, the averments made in part No.11 of the plaint, is not correct. Further by taking Ex.A1, dated 07.12.1925, executed by Sri Mahanth Ramnarayanacharya swamy in favour of Badrapapannacharya Swamy of Lakshmanbagh Rewa, in respect of the properties 9 situated at Mohanbagh in Badrinarayana Mountains, Gadawala District at Joshi Mutt, Podhi Taluk, so also the properties mentioned in para 4 of the plaint. If really the plaintiff's Mutt is an independent Mutt there is no possibility of reference of Lakshmanbagh Samsthan and also the properties situated outside of State of Madhya Pradesh. Further, the grantor under Ex.A1, gave right to the Badriprapapanna Swamiji as Mahanth of Lakshmanbagh Samsthan, Rewa of Madhya Pradesh. Therefore, declared that the plaintiff-Mutt is not an independent Mutt.

19. Further the court below observed that the contention of the defendants that Raja guru Mukundacharya was installed as Head of Lakshmanbagh Samsthan. After the death of Swamy Mukundacharya, Sri Lakshmiprpapanna charya succeeded him. Subsequently, on his death, Swami Janardhana Charya and thereafter Swami Badraprapanna charya were succeeded. Thereafter PW.1/Harivamshacharya was appointed as Mahanth. Said appointment has to be ratified by the Maharaja or concerned Department of the State Government. As admitted by PW.1 in his cross-examination, about the construction of temple by Maharaja Viswanath Singh and Swamy Mukundacharya was the Raja guru of Lakshmanbagh Samsthan. Lakshmi Papannacharya succeeded Mukundacharya. Swami Janardhanacharya was succeeded and thereafter, Badrapapanna charya succeeded Janardhanacharya. Further PW.2/Madhava Das admitted that under Ex.A2, he was appointed as successor of Mahanthship Lakshmanbagh Samsthan, is subject to approval of Maharaja. But Maharaja was 10 not approved the Mahanthship of PW.1. Hence, he is not a Mahanth of Sri Lakshmanbagh Samsthan.

20. Further the court observed that if the plaintiff Mutt is an independent Mutt, it has to be registered under A.P.Charitable and Hindu Religious Institutions and Endowments Act, 1987 (Act 30 of 1987), Section 6 of the said Act states about the preparation and publication of list of Charitable and Hindu Religious Institutions and Endowments on the basis of income. Clause-D shows with regard to the Mutts irrespective of income. Admittedly the plaintiff's Mutt is not registered under the said Act, if it is independent Mutt, it ought to have registered as per section 6 of the Act 30 of 1987 or section 49 of the old act.

21.. As per Section 49 of the Act 30 of 1987, Muttadipathi of every Mutt shall submit to the commissioner within a period of ninety days from the date of commencement of this Act or the date of founding of such Mutt, proposal for fixation of Dittam in the Mutt. But no proposal was sent either by PW.1 or his predecessor Mahanth under Act 30 of 1987 or old act. Therefore, it can be said that the contention of the plaintiff that the plaintiff's Mutt is an independent Mutt and not relates to the Lakshmanbagh Samsthan is not correct.

22. It is contended by the plaintiff that Mutt was not shown as Ex.A3 and Ex.B9/agreement between the Lakshmanbagh Samsthan and the committee of Government. The admissions made by DW. 2 and DW.3 show that the plaintiff Mutt was not shown in Ex.B9/Agreement. Therefore, Lakshmanbagh Samsthan 11 has no relationship with plaintiff's Mutt. Once, the admission is made, it has to be considered. Considering the said submissions, Ex.A3 and A9, the two documents are one and the same i.e., agreement dated 30.03.1954 between President of India on one part and the statement of members of the committee constituted by State Government to Manage the properties and affairs of the Lakshmanbagh Samsthan, in which it is mentioned about the properties of temples within the state and out of state of Madhya Pradesh. Ex.B-9 does not cover Moola Mutt. As per the documents filed by the defendants there is an understanding that some of the Mutts and temples have to be maintained by Swamiji Mahanth, which were not covered by Ex.B9, it is evidenced by Ex.B12 about the list of the properties received by Sri Swamiji Maharaja in Chadhotri. Sl.No.6 relates to Moola Mutt i.e., plaintiff. On perusal of Ex.B10, letter addressed by the Collector, Rewa, Madhya Pradesh to inspect the Dharmastan Lakshmanbagh outside of the state and their properties.

23. As per Ex.A16 shows hat Chaturbujacharya, Manager of Moola Mutt died on 28.04.2001 and in his place Sri Lakshmana charya was appointed as sole Manager to look after the affairs of Moola Mutt by Sri Swami Maharaja, Lakshmanbagh, and Rewa. Ex.B20 shows about the orders passed Mahdya Pradesh Dharmika Nyas and Dharma Sheva Department, Manthralaya, Bhopal in January, 2005 shows that the Collector Rewa, an enquiry was ordered on the complaints received against PW.1. The Collector, Rewa also took possession of the charge of Lakshmanbagh Samsthan, Rewa 12 administration on 27.01.2005 after noon. It is evidenced by Ex.B21. In pursuance of the taking of the administration of Lakshmanbagh Samsthan by the District Collect and District Magistrate, Rewa, a letter was addressed under Ex.B23 to the District Collector, Chittoor to provide police assistance to Srinivasa Sukla i.e. DW-3 who was appointed under Ex.B19 to take possession of the plaintiff's Mutt.

24. Considering the above contentions, the issue was answered against the plaintiff and other issues, issue No.2 to 6 have taken for consideration and decided jointly as single issue.

25. The court below further observed that by taking the observations passed by the II Additional District Court, Rewa in Civil suit No.7A/1971 that PW.1 is not entitled to appoint as Mahanth, an enquiry was also conducted for the allegations levelled against PW.1 by the District Magistrate, Rewa. Suppressing all these effects, the plaintiff filed this suit as if the plaintiff's Mutt is an independent Mutt and it is no way connected to Lakshmanbagh Samsthan for declaration of right and title and for consequential relief of permanent injunction. Hence, the person, who comes the court, shall come with clean hands and true facts and PW.1 filed this suit by suppressing the material facts.

26. Considering the evidence of PWs.2 to 5, no prudence can be given to his testimony, therefore, the plaintiffs, no prudence to be given to the evidence given by PW.2 to 5 and with regard to the notice under Section 80, the court below has observed that there was exchange of notices Ex.P26 letter addressed by the Swamy Sri 13 Lakshmana Charya G.P.A holder of Moola Mutt to District Collector, Rewa on 27.10.2005 shows that Moola Mutt in Tirumala does not vest with the Lakshmanbagh Samsthan, Rewa.

27. Further the court below held that issue No.4 is not framed properly as there is no relief sought by the plaintiff to decide the Mahanthship. Suit is filed with regard to the properties situated in Tirumala, therefore, this court has got jurisdiction to entertain the suit. In view of the aforementioned reasons, the suit filed by General Power of attorney holder of the Moola Mutt for declaration of right and title in respect of the suit "A" and "B" schedule properties is liable to be dismissed. Consequently, the General Power of attorney holder is not entitled for permanent injunction.

28. Learned senior counsel appearing on behalf of the appellants/plaintiff's while assailing the said judgment, mainly relied on the following grounds:

(1) The Lower Court ought to have seen that admittedly the rulers of erstwhile Rewa District have donated certain properties to Sri Lakshmanbagh Samsthan. In as much as Rewa District of Madhya Pradesh was a Princely State of Central India, there was an agreement between the President of India and the Committee constituted for the purpose of management of Sri Lakshmanbagh Samsthan under Ex.A3, dated 30.03.1954 declaring the property donated by the rules of Rewa District are the personal properties of Sri Lakshmanbagh Samsthan.

Admittedly, the properties of the Appellant Mutt are not subject matter of said Agreement Ex.A3 ad the same were absolutely belonged to and vest in, the lower court ought to have seen that originally, in he year 1912 under three registered Gift Deeds the properties mentioned in Para 4 of the Plaint situated in made Street, Tirumala had been donated to Sri Ramnarayanacharya Swamiji. The said Swamiji made the said property form part of the Appellant Mutt and managed the Mutt as being the Trustee of the Mutt. Thus the properties had been dedicated to the deity 14 Lord Lakshmi Narasimha Swamy and was belonged to and vested in the said deity. Thus the Appellant Mutt is the absolute owner and possessor forth property.

(2) The Lower Court ought to have seen that Sri Ramnarayanacharya Swamiji who was the fonder/grantor had executed a registered document Ex.A1, dated 10.121925 whereby and where under he had nominated Sri Badri Prapannacharya Swamiji as his successor for the purpose of management of the Appellant Mutt as being the Trustee of the Mutt. The legal effect of the said document had been clearly established that the properties of the Appellant Mutt had not been vested with the Sri Lakshmanbagh Samsthan, Rewa District Madhya Pradesh. The respondents/defendants have also admitted the said document in all respects and hence, the Trial Court committed an error in considering the legal effect of recitals therein according to law. (3) The lower court ought to have seen that Sri Badri prapannacharya Swamiji, who was nominated as a Trustee of the Appellant Mutt under Ex.A1, was also Mahanth of Sri Lakshmanbagh Samsthan, Rewa District and had managed both the institutions along with other institutions independently. The budgetary allocation of expenditure of the respective Mutts including the Appellant Mutt have been separately delt with as could be seen from the proceedings under Ex.A14 to A18. Thus, the Appellant Mutt is not part and parcel of Sri Lakshmanbagh Samsthan, Rewa District as contended by the respondents/defendants. The Trial court has committed an illegality in not considering the said material documents Ex.A1 to A3 and A14 to A18 and erred in its concussions. (4) The deity of Sri Lakshmi Narasimha of Appellant Mutt. (5) The Lower Court ought to have seen that the observations made in Para 9 of the Judgment are unwarranted. The Appellant Mutt has always been claiming/asserting its ownerships, possession over the suit schedule priorities and a mere reference as to the properties of other Sri Vaishnava Cult Mutts in Ex.A1 does not in any way affect the rights of the Appellant Mutt over its properties. The Trial Court also misread and misinterpreted the recitals under Ex.A1 and erred in holding that Sri Badri Prapannacharya Swamiji, Mahanth of Sri Lakshmanbagh Samsthan, Rewa was given right over the properties. Thus, the observation of the Trial Court in the said paragraphs\ that the Appellant Mutt is not an independent Mutt is illegal and contrary to the material on record.

(6) The lower Court ought to have seen that the Appellant Mutt is a private mutt and it is not governed by the provisions of A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987. The said provisions have also no application and gives any right to the respondents to appoint In charge/Manage to the appellant Mutt. They can appoint any person/in charge to their Mutt to Sri Lakshmanbagh Samsthan situated within their territorial jurisdiction. The respondents have no control over the Appellant Mutt in any manner according to law.

(7) The lower Court ought to have seen that for the purpose of appointment of a Trustee to the Appellant Mutt, the approval of Maharaja of Rewa District is not necessary in as much as the properties belonged to the Appellant Mutt and they are not donated by the said Ruler of Rewa District. Thus the Appellant Mutt can appoint the Trustee of its choice and the same cannot be taken away by the Respondents/Defendants more so, when the Appellant Mutt is an independent Mutt and has not been amalgamated with the Sri Lakshmanbagh Samsthan, Rewa.

(8) The Lower Court ought to have seen that a reading of Ex.A1 to A3, A14 to A18 categorically established that the Appellant Mutt is not vested with the Sri Lakshmanbagh Samsthan, Rewa. The Trial Court failed to consider the relevant material on record and erred in dismissing the suit basing on irrelavant, unproved and inadmissible documents.

(9) The Lower Court ought to have seen that the Appellant Mutt has been represented by its GPA holder. Copy of the GPA was filed along with the plaint. PWs.1 to 5 have categorically stated about the execution of GPA and the respondents haven to raise any objection in their written statement or in the trial. The Trial Court permitted the Appellaalnt Mutt being represented by its GPA. Mere non-filing of GPA is not fatal to the case of the Appellant Mutt and it is only a curable defect. The Trial court also permitted appellant to represent by its GPA holder and hence, there was a deemed permission in favour of the Appellant Mutt to institute the suit through its GPA. Hence, the Court below erred in observing that the copy of GPA was not marked etc. It is also necessary to state here that GPA holder can deposit as a witness and he cannot be equated to that of a party witness and hence, non- examination of GPA holder is also not fatal to the case of hte Appellant Mutt according to law."

29. Based on the above stated grounds, learned senior counsel has submitted that the court below erred in holding that the plaintiff Mutt is not an independent Mutt and it is part and parcel of the Lakshmanbagh Samsthan and on perusal of the issues framed by the court below, the issue with regard to declaration of Mutt was not framed. Without framing an issue, the court below has declared the the plaintiffs/Mutt is a part and parcel of Lakshmanbagh Samsthan and hence, the 1st issue was held against the plaintiff.

30. Learned senior counsel to substantiate that the plaintiff mutt is independent Mutt, it is not part and parcel of the Lakshmanbagh Samsthan has submitted the following facts:

31. The petitioner Mutt-Uttaradi Srivaishnava Mutt @ Moola Mutt is founded by Ramnarayanacharya in 1912 for promoting Vyshanva cult by installing the idols of Lord Sri Rama Lord Seetha, Lord Lakshmana and Lord Anjaneya and Lord Lakshmi Naraswamtha Swamy in the Mutth. In the year 192, Swamiji Ramnarayanacharya made a registered gift deed, marked Ex.A1, and appointed Sri Badripapannacharya Swamiji to look after the affairs of the Mahanth as trustee. Said Badripapannacharya was also Mahanth of Lakshmanbagh Samsthan, Rewa, Madhya Pradesh. In the said document Ex.A1, all these properties shall belongs and vests in the Mutt deity Sri Lakshmi Narasimha Swami. Said Badripapanna Swamiji shall be a trustee there of and the successor of the trust shall be the same as the line of secession to the said trustees Peetha.

32. In view of the contents of Ex.A1, the properties were vested with the deity and Badriprapannacharya, who is a trustee of Moola Mutt 17 has executed a will on 10.07.1957 in favour of Harivamshacharya as his lawful successor. In the said will, Sri Badriappannacharya swamiji has also a descendant management of Moola Mutt along with its properties and the Badrpapannacharya swamiji is died on 02.08.1957. After his demise, Sri Harivanshacharya has been Managing the properties of Moola Mutt in his place and the same was also admitted by the defendants.

33. Learned senior counsel has submitted that the crucial documents, which is required to be considered to decide this issue, is the agreement entered in between the Government of Madhya Pradesh in the name of President of India and managing committee of Lakshmanbagh dated 13.03.1954. But surprisingly without considering the contents of the agreement dated 30.03.1954, the court below has held that the petitioner Mutt is part and parcel of Lakshmanbagh Samsthan. Though reliance is placed on page 20 of the judgments, with regard to Ex.A3/B9, but no contents were taken while deciding the issue by the court below.

34. Learned senior counsel heavily relied on the recitals of the said agreement, which clearly demonstrates that the petitioner Mutt is not part and parcel of the Lakshmanbagh Samsthan and the main contents of the agreement are extracted as follows:

" AND WHEREAS it has now been decided by the government that all the properties movable and immovable (but not including Jagir lands) at one time belonging to the Lakshman Bag Institution and at preset in possession of the Government should be restored with effect from 01.04.1954 to a Committee (herein after referred to as the Committee) consist -

.....

Now therefore, this deed of agreement witnesseth as follows namely:-

(1) As from the 1st April, 1954, the committee shall became entitled to posses and manage the immovable and movable properties both as detailed in the schedule annexure to this document.

(2) The committee shall from the aforesaid date maintain the Lakshman Bag Samsthan as well as other temples attached to it and termed as, 'Lakshman Bag Group of temples'.

(3) ...

(4) ..

(5) That the committee shall observe and be bound by the following conditions:-

(i) That the annual budge showing probable receipts and expenditure will be send to the Government for scrutiny and prior approval. Necessary provisions will be made in the budge so that not less Rupees one thousand per mensem is spent on the Sanskrit Pathashala, in which education shall be imparted up to Madhyama stage and the balance on maintenance and repairs of the temples and the current charges consisting of Rag Bhog and Sewa Puja of the deities Sadabarjag Hospitality, Gowshala and pocket expenses (Ahar and Byohar, Pilgrimage and maintenance of position (Maryada of the Mahant).

....

(iv) Separate Register shall be maintained by the Executive Officer appointed by the Committee showing :

(a) The name and the salary of the persons appointed in each temple;

(b) The jewellery, gold, silver, precious stones, utensils and other movable, belonging to each temple with.

(c) The title deeds and other important documents relating to any property of the Institution, and

(d) Other important documents relating to the Institution.

(v) Regular account of receipts and disbursement shall be maintained and such accounts shall be audited annually or at such other intervals as may be required by the auditors appointed by the Government.

SCHED ULE SCHEDULE OF PROEPRTY TO BE HANDED OVER TO THE LAKSHMAN BAG COMMITTEE PRESIDED BY SHRIT SWAMI JI BADRI PRAPANNACHARYA, MAHANT LAKSHMANBAG."

1. TEMPLES WITH THEIR MOVABLE AND IMMOVABLE PROPERTIES EXCLUDING JAGIR LANDS

(a) Name o f the temples withi n Vindhy a Pradesh Place where situated

1. Sthan Lakshman bag Rewa

2. Raghunath Ji Remar (Satna)

3. Mahranwala Bichhiya (Rewa)

4. Choupra Rewa

5. Akharghat Shri Jagannath Ji Rewa

6. Mathura Nath Uparahati (Rewa)

7. Pradhananwala Uparahati (Rewa)

8. Ram Krishna Marariha Uparahati (Rewa)

9. Vaidan Wala Uparahati (Rewa)

10. Khakhri Rewa

11. Pandentola Rewa

12. Pandentola Rewa

13. Bhandariwala Rewa

14. Hanuman Ji Chirahula (Rewa)

15. Ramnath Ji Govindgarh (Rewa)

16. Panchmandir Govindgarh (Rewa)

17. Harchand Rai Govindgarh (Rewa)

18. Shital Dwip Govindgarh (Rewa)

19. Jagannath Ji Makundpur (Satna)

20. Durbali Govindgarh (Rewa)

21. Hanuman Ji Lakshmanpur (Rewa)

22. Balramgarh bakna Bakna

23. Krishnagarth Jhalwara (Satna)

24. Chormari Chormari (Satna)

25. Mauhari katra Mauhari Katra (Satna)

26. Amarpatan Amarpatan (Satna)

27. Bailkunthpur Baikunthpur (Rewa)

28. Semariya Semariya (Rewa)

29. Mangawan Mangawan (Rewa)

30. Halwai Wala Ram Nagar (Satna)

31. Damodardas Wala Ram Nagar (Satna)

32. Chandela Chandela (Shahdol)

33. Bandhavadhish Bandhogarh (Umariya)

34. Laxminarayan Chitrakut (Satna) (B) OUT SIDE VINDHYA PRADESH

1. Radhamohan Chitrakut (Banda)

2. Rani Mandir Daraganj (Allahabad) 20

3. Ram Bhawan Daraganj (Allahabad)

4. Sawaman Shal Gram Brindrawan

5. Shri Ramanuj Kut Badri Nath Badrinath (Garhwal)

6. Rewa Kshetra (Shri Jaganath Puri) Puri

7. Bari Baghele Jodhpur

8. Chhota Baghela Jodhpur

9. Braham Shila Fatehpur

10. Haridwar Rajghat Kankhal (Haridwar)

11. Chhatrapl Garh Chhatrapal Garh

12. Hanumanji Indara Kuwa (Delhi)

13. Raghunath Ji Ram Das Daraganj (Allahabad)

(ii) Stock articles including jewellery pertaining to Lakshman Bag Insitution kept with Deputy Commissioner, Rewa and in the Bhandar of His Highnesss Rewa.

(iii) Gardens pertaining to the Lakshman Institution which are at present managed by the deputy Commissioner Rewa.

(iv) Deposit balance of the Lakshman Bag Institution in the Bank of Baghelkhand Rewa."

35. Learned senior counsel has submitted that the very basis of the defendants to claim over the plaintiff-Muttt is based on the above said agreement. On perusal of the agreement it clearly discloses that Lakshmanbagh institution, Rewa is in possession of considerable immovable properties, and had also manage certain temples within and outside the Vindhya Pradesh. According to the above clause, from 1st April, 1954 the committee shall became entitled to possess and manage the immovable and movable properties both as detailed in the schedule annexed to the said document.

36. On verification of the scheduled properties which are to be handed over to the Lakshmanbagh Samsthan Committee part A deals with the temples within Vindhya Pradesh. Part B deals with outside Vindhya Pradesh. In part-B, there are 13 properties/temples were noted down but the petitioner Mutt was not included in the schedule annexed to the said agreement. Hence, the agreement entered in 21 between the state government and the Management committee of the Lakshmanbagh is not binding on the plaintiff's mutt and it can also be construed that the petitioner Mutt is not part of the Lakshmanbagh Mutt.

37. Learned senior counsel has submitted that in the year 1925, Sri Ramanarayana Charyaji has executed a will on 10.12.1925 settled the above properties to the Swamiji Badri Prapannacharyaji as successor. In the said will, it clearly discloses that the properties belongs to Mutt are the properties vests with the deity Sri Lakshminarasing Bhagavan. Genesis for the rights over the property in favour of Sri Badripapanna swamiji is only through 1925 Will executed by Sri Ramnarayanacharyaji. Even according to the said will executed in favour of Sri Badriprpapanna Swami is only a trustee of the said prosperities and the properties are vests with deity Sri Lakshmi Narasimha Bhagavan, subsequently Sri Swami BadriPrapannacharyaji has executed a Will on 04.07.1957 appointing Swami Harivamsha charya, as successor of trustee for the Moola Mutt along with Mahanth as Lakshmanbagh Samsthan.

38. Learned counsel for the petitioner further argued that perusing the contents of all the three documents i.e. A1, A2 and A3, it can safely be construed that the properties are vests with deity Sri Lakshmi Narayana Bhagavan. Sri Badri Prapannacharya Swamiji is appointed as trustee of the said properties by virtue of Ex.A1 and in Ex.A2, Sri Harimvamshacharya has appointed by BhadraPrapannacharyaji and the existence of said documents were not denied by the defendants.

39. On perusal of Ex.A3 it goes to show the committee constituted as per the agreement dated 30.03.1954, shall entitled to possess and manage the properties, which were included in the schedule annexed and the Moola Mutt/plaintiff Mutt is not included in the schedule.

40. Learned senior counsel further contended that the correspondence between the Government Vindhyapreadesh, Rewa and the Chairman, Trust Committee Lakshmanbagh Samsthan temples, Rewa dated 06.12.1954 clarifies the issue that the names which are not mentioned in the schedule, payments/maintenance were denied. The Trust Committee of Lakshmanbagh group of temples have made a request for allotment of budget through letters dated 15.11.1954, the replying to the said letter, the Government has as in Serial No.2, which reads as follows:

"2) In the agreement executed between Sri swamiji Maharj and the Government, the names of these temples are not mentioned and neither any payment was being made earlier to these temples by Laxmanbagh Trust. It is due to this reason that approval was not given in the Budget."

41. It clearly discloses the intention of the Vindhya Pradesh that the names of the temples which are not mentioned, any payment being made earlier to these temples by Lakshmanbagh Trust, the approval was not given in the budget. In view of the above said correspondence, it clarifies that the plaintiff of mutt was maintained independently by both Sri Badriprapannacharya Swamiji by Harivamshacharya Swamiji independently. No payments were made by Lakshmanbagh Samsthan.

42. Without considering the said documents E.x.A1 to A3, the court below strangely held that, taking the statement made at Para 11 of the plaint, the plaintiff-mutt was taken possession and control over the other Mutt property spread in other parts of the India and declared that the plaintiff Mutt is not an independent mutt, which is wholly illegal.

43. Learned counsel appearing on behalf of the defendants, Sri T.Lakshmi Narayana has replied to the said contentions, submitted that though he has admitted that by virtue of Ex.A1, Sri Badriprapannacharya ji was appointed as trustee to the properties of Moola Mutt because he was the Mahanth of Lakshmanbagh Samsthan, at that point of time and subsequently Sri Badriprapannacharya swamiji executed a will by appointing Sri Harivamshacharya as his lawful descendants as Mahanth successor to take Lakshmanbhag Samsthan. But the same was not approved by the Maharaja. Though he has admitted the Will dated 04.07.1957, but contended that Will is only valid to an extent of power of nomination of Harivamshacharya as successor of Mahanthship only. After the death of BadriPrapannacharyaji as per the agreement dated 30.03.1954, the state Government of Madhya Pradesh has appointed Sri Raghavacharya as Mahanth of Lakshmanbhag vide orders dated 20.10.1958. When the said orders were challenged by Sri Harivamshacharayaji/plaintiff herein by claiming with certain properties given to Mahanth Badri Prapannacharya Swami to him and also the power of the State Government to appoint another Mahanth, the Trial court, after considering the entire material, 24 dismissed the said suit and he filed an appeal against the suit. The High Court of Madhya Pradesh also dismissed the appeal with a clear observation, the plaintiff was not eligible as Head of Samsthan.

44. He also relied on the averments made in Para No.11 of the plaint, wherein it is mentioned that the plaintiff Mutt is in possession and control of various other property, spread in other parts of India, which clearly shows that the person, who appoints as Mahanth, Lakshmanbagh Samsthan, Rewa, Madhya Pradesh is also a trustee of Moola Mutt. Hence, the plaintiff-Mutt is not an independent Mutt and whoever be the Mahanth of Lakshmanbhag Samsthan is the trustee of plaintiff's Mutt. Hence, it is part and parcel of Lakshman Bhag Samsthan.

45. Apart from the above rival contentions of the both the counsel, it is not out of place to note that the admission made by DW.3 in his evidence that there is no document to show that the Moola Mutt is part and parcel of Lakshmanbhag Samsthan except stating that there is a mention of Lakshmanbhag Samsthan in Ex.B9/Ex.A3.

46. Considering the submissions of both the counsel, and Ex.A1 to A3, Ex.A17 and also admission made by the defendant No.3 can safely held that the plaintiff/Moola Matt is an independent Mutt and it is not a part of parcel of Lakshmanbhag Samsthan.

47. Learned counsel for the plaintiff has further contended that as per Ex.A1/the properties were executed vested in the Mutt deity Sri Lakshmi Narasimga Bhagwan and the same was not denied by the defendants. Even as per Ex.A3, the Moola mutt/plaintiff mutt was not included in the schedule and according to the said document the 25 committee is entitled to possess and manage the movable and immovable properties of the temples mentioned in the schedule. Further the correspondence between the Government and the said committee it clearly discloses that the defendants have never spent any money for maintenance of the plaintiff's Mutt and accordingly they have denied the maintenance of the temples/which are not included in the schedule properties. It is surprising to note that the defendants have not placed any record to show that they have maintained the temple/plaintiff's mutt since 1954 either from1925 or from1955. It is not denied by the defendants that the plaintiff is performing Poojas regularly and they also performing Nitya Deepa Naivedya, araadhana to the deity and also providing free meals and accommodation to the pilgrims through all these years by the plaintiff/mutt itself.

48. Learned senior counsel has submitted that the Tirumala Tirupati Devasthan has acquired the properties of the Mutt for widening of the road of four mada streets at Tirumala. Accordingly an award was passed bearing No.1 of 1990-91 dated 16.04.1990. Alternatively the Tirumala Tirupati Devasthanam had given site and plot No.4, Block No.B, TSNo.3 part, Kolaigunta Tirumala to an extent of 2220 Sq.Ft., handed over the possession for the same to the plaintiff. And the Tirumala Tirupati Devasthanam had given possession receipt for the said property on 15.03.1999, accordingly the lease deed was also executed between the Tirumala Tirupati Devasthanam and Moola Mutt. The above said properties were included to the plaint 'A' Schedule property. Later the 26 plaintiff/appellant submitted plans for construction of new Moola mutt in the plaint-A schedule property. Accordingly, said plan was approved by the competent authority of Tirumala Tirupati Devasthanam, thereupon in the said site, the plaintiff-Mutt has constructed and reinstalled the idols of Lord Srirama, Lord Seetha, Lord Lakshmana and Lord Hanuma by conducting religious rites. Even said Mutt was constructed in the site allotted by the Tirumala Tirupathi Devasthanam, by collecting donations from the devotees on its own. Thus, the plaintiff has been in continuous and exclusive possession, by managing the mutt by performing daily poojas and providing free meals to the pilgrims and also providing accommodation facilities.

49. Item No.(b) of para-4 of the plaint wasacquired by the TTD and Item No.(c) of para-4 was also acquired the land with Structures to an extent of 45,510 sq.ft bearig TS.No.6-3-1 in Singa Mala Street, Tirumala in lieu of that the Tirumala Tirupathi Devasthanam has given an alternative site an extent of 8,000/- sq.ft. in TS.No.3-4-A 3-4- B, abutting to Andavan Ashramam, Tirumala. Accordingly the Tirumala Tirupati Devasthanam also issued possession certificate to the plaintiff on 19.10.2004 and since then the plaintiff has been in exclusive possession and management and enjoyment of the plaint schedule property. In view of the above said proceedings, it is very clear that the plaintiff as trustee in exclusive possession and enjoyment of the said properties by managing trust. The said aspects were not denied by the defendants.

50. Learned counsel appearing for the respondent/defendants has submitted that as per the Will executed by Sri Badripapannacharya on 04.07.1957, Sri Harimvamshacharya was appointed as Mahanth of Lakshmanbagh Samsthan, and by virtue of that he was also entrusted as trustee of Moola mutt. By virtue of the agreement entered between the President of India, appointment of Mahanth has to be approved by the State Government of Madhya Pradesh. But in this case, the nomination of Sri Harivamshacharya to the Mahan ship has to be ratified by the Maharaja concerned. Sri Harivamshacharya as successor to Badripapannachariji was not receoginsed by the state Government of Madhya Pradesh. And Sri Swami Raghacharyaji was appointed as Mahant of Lakshmanbagh Samsthan, recommended by the Committee vide orders dated 20.10.1958. By virtue of the said appointment of Sri S.Raghavacharya as Mahanth of Lakshmanbagh Samsthan, the Harivamshacharya was removed as Mahanth of Lakshmanbagh Samsthan. Sri Harivamshacharya is the plaintiff, who is nothing to do with the plaint properties. He further submitted that against the appointment of Raghavacharya as Mahanth to the Lakshmanbagh Samsthan, the plaintiff has filed a civil suit in 7A/1971 on the file of II Additional District Judge, Madhya Pradesh and the same was dismissed by the competent civil Court, for which the petitioner also field an appeal before the High court of Madhya Pradesh at Jabalpur vide First Appeal No.260 of 1973 and the appeal was also dismissed with a clear observations that he was not entitled for appointment as head of Samsthan accordingly his claim for Mahantship was denied.

51. Considering the allegations received against the plaintiff after enquiry the Madhya Pradesh Government Dharmik Nyaya and Dharmaseva Department in proceedings No.F7/50/200/CHHA has removed Sri Harimvamshacharya from the Mahanthship of Lakshmanbagh Samsthan. Accordingly, it was communicated by the Collector of Rewa to the Principal Secretary of Madhya Pradesh Government by taking the charge of the Lakshmanbagh Samsthan himself. By virtue of that, now the plaintiff in the suit is not a Mahanth, accordingly, he cannot represent either as Moola Mutt or as GPA holder of Harivamshacharya. By virtue of the removal of Harivamshacharya as Mahanth, GPA has come to an end. Therefore, the plaintiff has no locus standie to file the suit at all. He further submitted that s the GPA holder Harivamshacharya he used to manage the Moola Mutt. Accordingly after acquisition proceedings, the Tirumala Tirupati Devasthan has handed over to possession certificates to the plaintiff, but by virtue of the proceedings dated 11.08.2005 the plaintiff is no more Mahanth of Lakshmanbagh, hence, GPA Harivamshacharya to the plaintiff would cease from the subject.

52. To support his contention learned counsel appearing on the defendants heavily relied on the judgment of the Trial Court in Civil Suit 7A/1971 on the file of Additional District Court, Rewa.

53. Considering the above submissions, on perusal of the documents and also the evidence, it is not in dispute that through will under Ex.A1, the properties were vested with the Deity Sri Lakshminarasimg Bhagwan and Sri Badriprapannacharyaji was 29 appointed as trustee to the said properties. Sri Harivamshacharya swamy was appointed by the Badri Prapannacharyaji as trustee to the properties of the plaintiff-mutt.

54. On perusing Ex.A5, A6, A7 and A10 it clearly discloses that plaintiff-mutt was in possession of the property and the same was also acknowledged by the Tirumala Tirupati Devasthan and in the evidence of DW.2, in the cross-examination, admitted that the plaintiff is in lawful possession of the suit property. Considering the above this court has concluded and declared that the plaintiff is absolute owner of the plaint schedule property A1 and B, plaintiff properties.

55. Learned counsel for the petitioner has submitted in his arguments about the other aspect of the findings given by the court below, that the plaintiff mutt is not registered as per Section 6 of the Act 30 of 1987. The court below considering the submissions made by the defendants, held that though it is assumed that the plaintiff mutt is an independent mutt, it has to be registered under A.P. Charitable and Hindu Religious Institutions and Endowments Act, 1987. And according to section 49 of said Act, Muttadhipati of every Mutt shall submit to the Commissioner wutgun a period of ninety days from the date of commencement of the Act or the date of founding of such Mutt, proposal for fixation of Dittam in the Mutt. But in the instant case, no such proposals were sent either of PW.1, or his predecessor Mahanths under Act 30 of 1987, or under the old act, accordingly declared that the plaintiff Mutt is part of Lakshmanbagh Samstha is not correct. In support of his contention learned senior counsel for the appellant relied on the ratio decided by 30 the Apex Court in Sri Radhakanta DEB and Another Vs. Commissioner of Hindu Religious Endowments, Orissa1 In Gurpur Guni Venkataraya Narashima Prabhu & Ors. v. B.G. Achia, Assistant Commissioner, Hindu Endowment, Mangalore & Anr. Krishna Iyer, J., reiterated these very principles in the following words:

"The law is now well settled that 'the mere fact of the public having been freely admitted to the temple cannot mean that courts should readily infer therefrom dedication to the public. The value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right'. (See Bihar State Board Religious Trust, Patna v. Mahant Sri Biseshwar Das-[1971] 3 SCR 680,

689)."

Thus, on a conspectus of the authorities mentioned above, the following tests may be laid down as providing sufficient guidelines to determine on the facts of each case whether an endowment is of a private or of a public nature:

(1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right; (2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large; (3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature. (4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment.

Considering the two documents together the fundamental features, which now from the recitals extracted above, may be summarised as follows:-

(1) That the deity was installed in the temple purely as a family deity and the dedication WAS made only for a group of individuals who may be connected with the family of the Panis who were the founders of the deity.

This clearly establishes that the intention of the founders was to dedicate their properties and instal the deity in the temple only for purposes of the Pani family, and their descendants. A perusal of the recitals extracted above would unmistakably show that there can be no two opinions on this question.

(2) Extensive private properties belonging to the Pani family alone were dedicated for the maintenance Of the temple and the deity and there is nothing to show that any contribution was called for from members of the public nor is there any averment in the deed to show that there was any 1 (1981) 2 SCC 226 31 stipulation for taking offerings from the members of the public to worship in the temple.

(3) There was no provision for framing any scheme by associating the members of the public or consulting them. In fact, Ext. 1 shows that even after the descendants of the founders had fallen on evil days and were not in a position to provide sufficient funds for the maintenance. Of the temple yet they appointed Udayanath Pattanayak to manage the affairs of the deity and bound themselves personally to reimburse the Manager for any out-of-pocket expenses incurred in connection with the maintenance of the temple. This circumstance manifestly proves that the endowment was of a purely private nature right from the time it was created till 1932 when the management was changed and continued to be of the same nature. Indeed, the personal undertaking contained in Ext. 1 clearly shows that there was never any intention to treat the temple as a public one but the intention was, if at all, to continue it in the name of the family so long as the family continued.

(4) There is no recital in any of the documents to show that the members of the public or the villagers of the place where the temple was situated were entitled to worship as of right. On the other hand, PWs 1 to 6 who were examined by the appellants-plaintiffs have categorically stated that members of the public were not allowed to worship in the temple as of right. In this connection PW 1 stated as follows:-

"Members of the public have no right to have Darsan of, or to offer bhog to the deity. The villagers do not make Kirtan before the deity or take any part in any festivity of the deity. The deity has no Bahari Jatra. No member of the public made any gift to the deity. No khairat is ever given. The properties of the Thakur are all (sic) with rent."

56. In view of the above law lay down by the apex court in the above referred judgments, it can be construed that Moola Mutt is not registered under Act but is individual Mutt and private Mutt. For that reason only it not enlisted in the publication made under Section 6 of the Act 30 of 1987.

57. Replying to the said arguments, learned counsel appearing on behalf of the respondents/defendants has submitted that because the plaintiff-mutt is part of the Lakshman Bagh Samsthan, said Mutt was not included in the list prepared under section 6 of the Act 30 of 1987. If it is construed as independent Mutt, it has to be registered as per section 6 of the Act 30 of 1987 or old act, and even as per Section 49 of the Act 30 of 1987, Mathadhipati of every Mutt shall 32 submit to the Commissioner within a period 90 days from the date of commencement of the Act or foundation of such Mutt, proposal of fixation of dittum in the Mutt. Though there is a specific provision in the Act with regard to the plaintiff Mutt no such proposals were send either by the plaintiff or GPA holder of the plaintiff. Hence, it is not an independent Mutt, it is construed as part of Lakshmanbagh Samsthan, for that reason only, the officials of endowment Department has not recognised the Mutt as independent Mutt and the same was not listed under section 6 of the Act 30 of 1987.

58. Considering the above submissions and on perusal of the record, as per Ex.A1 it is clear that the Mutt has been existing since more that 100 years, and the plaintiff installed deities for conducting poooja, which was not dined by either party. Just because the mutt was not registered under Section 6 of Act 30 of 1987, it cannot be construed as not an independent Mutt. As per observations of the Hon'ble Apex Court in the above referred judgment, it clearly stated that whether if a document is available to prove the nature and origin of the endowment and the recitals of the document shows that the control and management of the temple, it should be conclusive to prove that the endowment or Mutt was of a private in nature. In the instant case also on perusal of the recitals of 1925 documents it proves that it is a private and independent Mutt. Hence, the finding of the court below is not in accordance with the observations of the Hon'ble Apex Court.

59. Learned counsel appearing on behalf of the respondents submitted that the properties addressed by Ramnarayanacharyaji to 33 Badri Prapannacharyaji are not personal properties of any of them and the said properties belongs to the Institution for which they are only trustees. The will executed by Badripapannacharyaji is valid only to the extent of power of Harivamshacharyaji and the same would not extent to the properties of the institution. As per Section 50 of Act 30 of 1987, that any property gifted to Mahanth, he shall be entitled to spend at his discretion for any purpose, which would connected with the object of the mutt and for propagation of Hindu Dharma only. Hence, the properties of Schedule A and B were included in properties of Deity by virtue of the will executed in the year 1925 or subsequent nomination of Harivamshacharya are only with regard to the trusteeship and they are not entitled to deal with the properties of Moola Mutt. He further submitted that Sri Harivamshacharyaji has approached the competent Civil Court of Madhya Pradesh, questioning the appointment of Ramanrayacharya ji as Mahanth of Lakshmanbagh Samsthan, which elaborately discussed in the judgment and accordingly dismissed by the Additional District Judge, Rewa declaring that the plaintiff is not entitled to be appointed as Mahanth. In view of the same, the present suit is not maintainable under section 11 of Civil Procedure Code, since the doctrine of res judicata applies.

60. Counter to the said contention, it is submitted that learned counsel for the appellant that plaintiff-mutt is not a party to said suit and the issue before the II Additional District Judge, Rewa with regard to the Mahanthship of Lakshmanbagh Samsthan, Rewa. Though the appellant/plaintiff was removed as Mahanth of Lakshmanbagh 34 Samsthan by the State government, he has assailed the said proceedings and the whole contention and pleadings with regard to the said suit is with regard to the entitlement of Mahanthship to Lakshmanbagh Samsthan. The issue was considered by the II Additional District Judge, Rewa is that as per the agreement entered between the parties, if any Mahanth is appointed, it should be ratified by either Maharaja or concerned Department of the State. The same is nothing to do with the present suit. The present suit is filed by Moola Mutt, to declare the plaint schedule properties A and B, are of the plaintiff's. The subject matter is nothing to do with the findings of the II Additional District Judge Rewa, 7A/1971.

61. Considering the submissions made, it is held that the suit filed by Harivamshacharya Swamiji on the file of II Additional District Judge, Rewa assailing the only proceedings of appointment of Lakshmanbagh Samsthan.

62. In view of the above, declaring that the plaintiff Mutt is an independent Mutt it is not part of Lakshmanbagh Samsthan, the present suit would not attract the doctrine of res judicata under section 11 of the CPC, as the plaint is different.

63. Learned senior counsel further raised an issue that as far as the contention raised by the defendant with regard to the fulfilling the statutory requirement, under section 80 of CPC, learned senior counsel has submitted that the issue was already considered by the court below, in view of the exchange of notice, i.e. B26/letter addressed by the Sri Laksmanacharya, GPA Holder of Moola Mutt to the District Collector, Rewa, dated 27.10.2005 that the Moola Mutt in 35 Tirumala does not vest with the Lakshmanbagh Samsthan, Rewa and that the Executive Officer of Lakshmanbagh Samsthan also addressed a letter to the District Collector, Chittoor, considering the same, the Court held that the compliance of Section 80 of CPC. The defendants has not filed any appeal against he said observations, hence, it is barred to take such view.

64. On the other hand, learned counsel for the respondents/defendants further contended that the weakness of the respondents cannot be relied upon and the burden of proof lies on plaintiffs.

65. Replying to the said contentions, learend senior counsel has relied on Sections 102, 106 and 110 of Indian Evidence Act. For better appreciation, Section 102 of Indian Evidence Act is extracted as follows:

"102. On whom burden of proof lies.--The burden of proof in a suit or proceeding lies on that person who would fail if no evidence at all were given on either side. Illustrations

(a) A sues B for land of which B is in possession, and which, as A asserts, was left to A by the will of C, B's father. If no evidence were given on either side, B would be entitled to retain his possession. Therefore the burden of proof is on A.

(b) A sues B for money due on a bond. The execution of the bond is admitted, but B says that it was obtained by fraud, which A denies. If no evidence were given on either side, A would succeed, as the bond is not disputed and the fraud is not proved. Therefore the burden of proof is on B."

66. Suit or proceedings lies on the person falls no evidence at all given or either. As per above referred sections it is clear that DW.1 the person claiming him as administrator appointed by the 36 Government of Madhya Pradesh to look after the Mutt, he filed the written statement, but he has not entered into the witness box.

114 Court may presume existence of certain facts. --The Court may presume the existence of any fact which it thinks likely to have happened, regard being had to the common course of natural events, human conduct and public and private business, in their relation to the facts of the particular case. Illustrations The Court may presume--

(a) That a man who is in possession of stolen goods soon after the theft is either the thief or has received the goods knowing them to be stolen, unless he can account for his possession;

(b) That an accomplice is unworthy of credit, unless he is corroborated in material particulars;

(d) That a thing or state of things which has been shown to be in existence within a period shorter than that within which such things or state of things usually cease to exist, is still in existence;

(e) That judicial and official acts have been regularly performed;

(f) That the common course of business has been followed in particular cases;

(g) That evidence which could be and is not produced would, if produced, be unfavourable to the person who withholds it;

(h) That if a man refuses to answer a question which he is not compelled to answer by law, the answer, if given, would be unfavourable to him;

(i) That when a document creating an obligation is in the hands of the obligor, the obligation has been discharged.

But the Court shall also have regard to such facts as the following, in considering whether such maxims do or do not apply to the particular case before it:-- As to illustration As to illustration (a) -- A shop-keeper has in his till a marked rupee soon after. it was stolen, and cannot account for its possession specifically, but is continually receiving rupees in the course of his business;

As to illustration (b) -- A, a person of the highest character is tried for causing a man's death by an act of negligence in arranging certain machinery. B, a person of equally. good character, who also took part in the arrangement, describes precisely what was done, and admits and explains the common carelessness of A and himself;

As to illustration (b) -- A crime is committed by several persons. A, B and C, three of the criminals, are captured on the spot and kept apart from each other. Each 37 gives an account of the crime implicating D, and the accounts corroborate each other in such a manner as to render previous concert highly improbable;

As per Section 114 of Indian Evidence Act, it can be presumed that the defendant failed to object the case. To support his contention relied on the following judgments.

67. In Iswar Bhai C. Patel Alias Bachu Bhai Patel Vs. Harihar Behera And Another2 wherein it is held that -

"Admittedly defendant No.1 had an account in the Central Bank of India Limited, Sambalpur Branch which his father, namely, respondent No.2, was authorised to operate. It is also an admitted fact that it was from this account that the amount was advanced to the appellant by respondent No.2. It has been given out in the statement of respondent No.2 that when the appellant had approached him for a loan of Rs.7,000/-, he had explicitly told him that he had no money to lend whereupon the appellant had himself suggested to advance the loan from the account of respondent No.1 and it was on his suggestion that the respondent No.2 issued the cheque to the appellant which the appellant, admittedly, encashed. This fact has not been controverted by the appellant who did not enter the witness box to make a statement on oath denying the statement of defendant (respondent) No.2 that it was at his instance that respondent No.2 had advanced the amount of Rs. 7,000/- to the appellant by issuing a cheque on the account of defendant (respondent) No.1. Having not entered into the witness box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of principles contained in illustration (g) of Section 114 of the Evidence Act."

....

A Division Bench of the Punjab & Haryana High Court also in Bhagwan Dass vs. Bhishan Chand and others, AIR 1974 Punjab & Haryana 7, drew a presumption under Section 114 of the Evidence Act that if a party does not enter into the witness box, an adverse presumption has to be drawn against that party.

2 (1999) 3 SCC 457 38 Applying the principles stated above to the instant case, it would be found that in the instant case also the appellant had abstained from the witness box and had not made any statement on oath in support of his pleading set out in the written statement. An adverse inference has, therefore, to be drawn against him. Since it was specifically stated by respondent No.2 in his statement on oath that it was at the instance of the appellant that he had issued the cheque on the account of respondent No.1 in the Central Bank of India Ltd., Sambalpur Branch, and the appellant, admittedly, had encashed that cheque, an inference has to be drawn against the appellant that what he stated in the written statement was not correct. In these circumstances, the High Court was fully justified in decreeing the suit of respondent No.1 in its entirety and passing a decree against the appellant also. "

68. In Vidhayadhar Vs. ManikRao And Another3 the Hon'ble Apex Court held that -

"Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. . This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR (1930) Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97.

The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh v. Virender Nath and Anr. held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab & Haryana High Court in Bhagwan Dass v. Bhishan Chand and Ors. , drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box.

...

3 1999 3 SCC 573 39 In the instant case, the property which was mortgaged in favour of defendant No. 1 was transferred by defendant No. 2, who was the owner of the property, to plaintiff. This transfer does not, in any way, affect the rights of defendant No. 1 who was the mortgagee and the mortgage in his favour, in spite of the transfer, subsisted. When the present suit for redemption was filed by the plaintiff, defendant No. 2, as pointed out above, admitted the claim of the plaintiff by filing a one-sentence written statement that the claim of the plaintiff was admitted. When the plaintiff entered into the witness box, defendant No. 2 did not cross examine him. He did not put it to the plaintiff that the entire amount of consideration had not been paid by him, defendant No. 1 alone raised the question of validity of the sale deed in favour of the plaintiff by pleading that it was a fictitious transaction as the sale consideration had not been paid to defendant No. 2 in its entirety. Having pleaded these facts and having raised the question relating to the validity of the sale deed on the ground that the amount of consideration had not been paid, defendant No. 2 did not, in support of his case, enter into the witness box. Instead, he deputed his brother to appear as a witness in the case. He did enter into the witness box but could not prove that the sale consideration had not been paid to defendant No. 2. On a consideration of the entire evidence on record, the Trial Court recorded a positive finding of fact that the sale deed, executed by defendant No. 2 in favour of the plaintiff, was a genuine document and the entire amount of sale consideration had been paid. This finding was affirmed by the Lower Appellate Court but the High Court intervened and recorded a finding that although the property which was mentioned to have been sold for a sum of Rs. 5,000/-, the plaintiff had, in fact, paid only Rs. 500 to defendant No. 2. The amount of Rs. 4,500 which was indicated in the sale deed to have been paid to defendant No. 2, prior to registration, was not correct. It was for this reason that the High Court while redeeming the property directed that the amount of sale consideration which was paid by the plaintiff to defendant No. 2 shall be returned by defendant No. 2 and the property would revert back to him."

69. In Iqbal Basith and Others Vs. N.Subbalakshmi and Others4, wherein it is held that-

The present suit was instituted by the appellants in 1974 seeking permanent injunction as the respondents attempted to encroach on their property. The suit schedule property was described as no. 44/6. 4 (201) 2 Supreme Court Cases 718 40 The respondents in their written statement claimed ownership and possession of property no. 42, acknowledging that other properties lay in between. A feeble vague objection was raised, but not pursued, questioning the title of the appellants. The respondents raised no genuine objection to the validity or genuineness of the government documents and the registered sale deeds produced by the appellants in support of their lawful possession of the suit property. The original defendant no.1 did not appear in person to depose, and be cross examined in the suit. His younger brother deposed on the basis of a power of attorney, acknowledging that the latter had separated from his elder brother. No explanation was furnished why the original defendant did not appear in person to depose. We find no reason not to draw an adverse inference against defendant no.1 in the circumstances. In Iswar Bhai C. Patel vs. Harihar Behera, (1999) 3 SCC 457 this Court observed as follows: "17.....Having not entered into the witness box and having not presented himself for cross- examination, an adverse presumption has to be drawn against him on the basis of the principles contained in Illustration (g) of Section 114 of the Evidence Act, 1872."

70. In the instant case, though the defendant No.1 has filed the written statement, he has not entered into the witness Box and he has not gave his evidence. In view of the same, as per the ratio decided by the judgments of the Apex Court, it can be held that as per Section 114 of the Act, presumption goes to show that adverse inference can be drawn against DW.1.

71. Considering the submissions of the senior counsel and on perusal of Ex.A5 to A9 and as per the admission made in the cross- examination of DW.2, it is not in dispute that the plaintiff is in possession of the said property and accordingly they have established their possession, hence, it can be concluded that the plaintiff is entitled for grant of permanent injunction as prayed for. 41

72. Therefore, in view of the above findings, the Appeal Suit is allowed. Consequently, the Decree and Judgment in O.S.No.439 of 2005 dated 10.04.2012 on the file of the Additional Senior Civil Judge, Tirupati is set aside, declaring the plaint A & B Schedule properties are absolute properties of the plaintiff, thereby granting permanent injunction restraining the defendants, their men, agents, supporters, henchmen and followers in their behalf from any way interfering with the plaintiff's peaceful possession and enjoyment of the plaint schedule properties. There shall be no order as to costs. As a sequel, pending miscellaneous petitions, if any, shall stand closed.





                                               _______________________
                                                 JUSTICE D.RAMESH
Date:     30 .04.2022
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                        42




      THE HONOURABLE SRI JUSTICE D.RAMESH




           APPEAL SUIT No. 361 of 2012


                Dated 30.04.2022


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