Delhi District Court
Sh. Kalkaji Mandir Prabhandak Sudhar vs Saraswati on 9 May, 2016
IN THE COURT OF CIVIL JUDGE SOUTH EAST DISTRICT,
SAKET COURTS COMPLEX, NEW DELHI
Presiding Officer : Ms. Prabh Deep Kaur, DJS
Suit No.201/2013
Unique ID No.02406C0062532012
In the matter of :
Sh. Kalkaji Mandir Prabhandak Sudhar
Committee (through its secretary)
Kalkaji Mandir, Kalkaji, New Delhi
2. Harish Bhardwaj
S/o Late Jai Swaroop Bhardwaj
R/o 359/1, Chirag Delhi, New Delhi17 ..........Plaintiffs.
Vs
Saraswati, W/o Sh. Ram Bral
R/o Illegal Occupant in Dharamshala Kalkaji Mandir
Adjacent to Gote Wali Dharamshala
Near Sri Kalkaji Temple Shrine
Kalkaji Mandir, New Delhi .......Defendant.
Date of institution of Suit : 21.03.2012
Date on which order was reserved : 05.05.2016
Date of pronouncement of the order : 09.05.2016
Present: Sh. Neeraj Bhardwaj, counsel for the plaintiffs.
Sh. S. Shashi Bhushan, advocate for the defendant.
SUIT FOR PERMANENT INJUNCTION.
JUDGMENT
1. Vide this order, the present suit has been disposed off filed CS No.201//2013 Shree Kalkaji Mandir Prabhandhak Sudhar Committee vs Sarsswati Page 1 of 17 by the plaintiffs for permanent injunction. The plaintiffs have filed the present suit with the following relief.
"Pass a decree for permanent injunction in favour of the plaintiff and against the defendant, thereby restraining the defendant from installing any stall shop and encroaching creating nuisance and trespassing in the passage, Dharmashal, Chabutra land of the temple Sri Kalkaji which is in the name of Shamlat Thok Brahimmins and Thok Joginans bearing Khasra No. 626 min, 630 min 1202/627, 633 min and 624, 625, 626 min, 1201/627, 630 min, 633 min and 1203/607 measuring 356 bighas 8 biswas".
2. Plaintiff's averments:
2.1. The plaintiff is a registered Society registered under the societies Registration Act and is formed by the pujaries of temple Sri Kalkaji to look after the welfare of the temple Sree Kalkaji in which the embers are elected through elections which are held after every three years. The members of the said committee are pujaries of the temple Sree Kalkaji who perform puja sewa and realize tehbazari as per their turn which commence from Shudhi Ekadami and ends on Shudi Dashmi of every Hind Calendar month. The present secretary of the Committee is authorized to file the present suit and he is also pujari of temple Sree Kalkaji belonging to Thula Bahadur of Thok Brahmins and looking after the welfare and management of the CS No.201//2013 Shree Kalkaji Mandir Prabhandhak Sudhar Committee vs Sarsswati Page 2 of 17 temple Sree Kalkaji and is also performing puja sewa and realizing tehbazari in his Bari.
2.2. The defendant is the illegal occupant in Dharamshala Kalkaji Mandir, Kalkaji, New Delhi. The temple Sree Kalkaji is situated on the land of Shamlat Thok Brahmins and Thok Jogians bearing Khasra No. 626 Min. 630 min 1202/627, 633 min and 624, 625 min, 1201/627, 630 min, 633 min and 1203/627 measuring 356 bighas 8 biswas. The precincts of temple Sree Kalkaji there are several Dharamshalas, small temples, parking stand, Pyaus etc. In temple Sree Kalkaji there is a system prevalent in which there is a bari system in which the pujaries perform puja sewa and realize tehbazari and other ancillary profits as per their turn. The land of temple is reserved for the joint use of pujaries of the temple and for the purposes of the temple alone and it could not be used by any person for his own benefit and it had been decided several times earlier. The defendant is neither the pujari nor authorized by any pujari to install a stall/shop on the land of the temple Sree Kalkaji or in Dharamshala.
2.3. On 28.02.2012 the defendant opened a stall/shop of Phool and prasad by affixing Takhat, Tripal in the thorough fare / passage which is also used for emergency evacuation purposes and on the land of the temple Sree Kalkaji which is in the name of Shamlat Thok CS No.201//2013 Shree Kalkaji Mandir Prabhandhak Sudhar Committee vs Sarsswati Page 3 of 17 Brahmins and Thok Jogians. By opening the said stall/shop and by encroaching the defendant blocked almost half of the passage which is used for emergency purpose and thus encroached, created nuisance and committed trespass on the land of temple Shree Kalkaji. Also causing inconvenience in the management and devotees/public at large. The defendant threatened that the pujaries and the committee members will be beaten up and implicated in false cases. The sons of the defendant are having criminal antecedents and due to which there are always apprehensions of the pujaries and committee members being beaten up. Even after the calling police the defendant did not remove the encroachment thereafter the plaintiff filed a complaint dated 01.03.2012 to the DCP, SouthEast District, New Delhi and up to the commissioner of Police, Delhi and thereafter a complaint dated 03.03.2012 was filed with chowki incharge, Police Post, Nehru Place, PS Kalkaji, New Delhi but no action was taken by the police and thereafter deliberations went on going between the pujaries and the defendants and finally with the interventions of devotees as the passage was blocked and there was inconvenience in free movement of the devotees due to heavy rush the encroachment was got removed by the devotees on Sunday dated 1.03.2016. Since then till date the stall/shop was not installed again in the passage but repeated efforts are going on by the defendant to again install the stall/shop in the CS No.201//2013 Shree Kalkaji Mandir Prabhandhak Sudhar Committee vs Sarsswati Page 4 of 17 passage had she is again threatening the pujaries and committees members to be beaten up and implicated in false case. The defendant also states that she will install the stall shop in the passage and seek an injunction order from the Court as the other illegal occupants have misled the Courts and sought an injunction order. The defendant has also forcefully opened the stall/shop of phool and prasad on the footpath on the Lotus Temple side thereby again encroaching and trespassing. If the stall/shop is opened in the emergency passage which beings from corner of Subhash Piao and goes upto Gote Wali Dharamshala Then it could lead to a serious disaster like stampede etc. because there would be not enough space to evacuate the devotees during any kind of emergency and could lead to sever unfortunate incident. The defendant cannot be permitted to create hindrance in the free movement of devotees, management of the temple Sree Kalkaji, encroach, create nuisance and trespass on the land or premises like Dharamshala of temple Sree Kalkaji and accrue any benefits out of the land of temple or premises of Sree Kalkaji without the permissions of the pujari who is performing puja sewa and realizing tehbazari as per rights.
3. Defence of defendant:
3.1. Defendant has stated that it is registered society of hardly three years but it is taking the issue of the defendant which is more CS No.201//2013 Shree Kalkaji Mandir Prabhandhak Sudhar Committee vs Sarsswati Page 5 of 17 than 35 years. The so called registered society of the plaintiff is only working for the benefits of some members. That is not only amazing money and creating hurdles not only for the devotees but the persons who are serving for the devotees for selling flowers and pooja materials to the devotees. The defendant Smt. Saraswati continuing her sewa to the devotees on the temple since her husband was staying with her. Even the defendant is staying in Dharamshal no.1 alongwith her sons and her other family members. They have already won a suit regarding the said dharamshala which was filed by one poojari fro kalkaji temple namely Shri Lalit Prasad Gaur. Annexure A The defendant was issued an Adhar Card basing upon her residency at Kalkaji Mandir, Dharmashal No. 1 annexure B the defendant had filed a written complaint before vigilance officer, police headquarters, new Delhi dated 06.09.2004 regarding the harassment of family members defendant by Shri Deepak Poojari Annexure C. 3.2. The some other persons were similarly situated like the defendant got an other from Additional District Judge on 12.06.2005 regarding non intervention of the police in the day to day affairs.
Annexure D. On 14.03.2012 the defendant has given a complaint regarding looting, destroying of shop and badly beaten family members of the defendant to the commissioner of police, New Delhi. On 19.03.2012 the learned Civil Judge Ms. Archana Beniwal in the CS No.201//2013 Shree Kalkaji Mandir Prabhandhak Sudhar Committee vs Sarsswati Page 6 of 17 suit No. 66/2012 dated 19.03.2012 has given an Ex. Partee injunction debarring the present plaintiff not to disposed the defendant from suit premises. But unfortunately 26.03.2012 the learned judge has vacated the injunction citing the reason among others that Navratra festival will create problem for devotees. The plaintiff was no locus standai at tall since he has not filed any power of attorney/authority letter on behalf of society nor they have filed any documents regarding the registration of society. The present petition has not filed by the competent person. No license of tehbazari due are being taken by the so called committee and the statement made therein are false and mischievous the so called society being formed by some vested interested persons for accumulation of money and properties of Shri Kalkaji temple and also get privileges and benefits by illegally allowing some of the near and dear one to sell the pooja materials to the devotees. The defedant is staying in Dharmashala no. 1 legally since last 35 years and even legal battle. The judgment dated 28.12.1955 and 10.04.1964 are not relevant to the present suit. The defendant in no way disturbing the ritual of Shri Kalkaji temple rather the defendant are serving the deity Sree Kalkaji by staying in the Dharamshala no. 1 and selling of flowers and pooja materials to the devotee. The plaintiff is giving a very wrong averments that the defendant has started a shop only on 28.02.2012 which is totally CS No.201//2013 Shree Kalkaji Mandir Prabhandhak Sudhar Committee vs Sarsswati Page 7 of 17 wrong and absurd, rather the defendant is selling the flowers upto the Hon'ble Court order dt. 26.03.2012. The emergency road who is never opened even during the Navratra are never hindering with the passage of the devotee since the defendant is only taking small corner place like many other similarly situated persons. The defendant belongs to Orisa and is distressed and her both sons who are staying with her in Kalkaji temple Dharmshala no.1 and are innocent persons. Unnecessary the police in collusion with evil motivated poojari are creating one problem after another.. The defendant is staying with her family members in Dharamshala no.1 and place is occupying is only 6x4" which is very close to Dharmashala.
3.3. The defendant has procured the documents pertaining to the Dharamshala by misleading them. Moreover, it has been held in WP (c) No. 5251/2010 vide orders dt. 22.11.2011 passed by HMJ Vipin Sanghi of Delhi High Court that no person can stake claim in the property of the Mandir and the same was also confirmed by the Division Bench of Delhi High In LPA No. 11/2012 vide orders dt. 14.02.2012. The vendors who sells their articles are only permitted only after paying tehbazari licence fees to the pujari / priest who is performing puja sewa and realizing tehbazari as per his turn which commences from shudi Dadashi and ends on Shudi Dashmi of every Hindi Calendar Month. The defendant is not authorized in any CS No.201//2013 Shree Kalkaji Mandir Prabhandhak Sudhar Committee vs Sarsswati Page 8 of 17 manner to install the shop without paying any tehbazari to the pujari/priest of temple Sree Kalkaji. Moreover, the defendant is not helping the devotees to get their pooja material and flowers but is selling them to accrue wrongful gains the vendors who are selling flowers and prasad are permitted to sell after paying tehbazari.
4. Replication: Plaintiff has filed replication in which plaintiffs have denied the allegations of the defendant and reiterated the facts stated in the plaint.
5. On the basis of pleadings, following issues have been framed vide order dated 12.04.2013:
1. Whether the plaintiff is entitled for a decree of permanent injunction as prayed for ? OPP
2. Whether the present suit is not maintainable in the eyes of law ? OPD
3. Whether the plaintiffs have no cause of action ? OPD
4. Relief.
6. In PE, plaintiffs have examined Sh. Satish Bhardwaj as PW1 to prove their case. PW1 has tendered his evidence by way of affidavit. PW1 has relied upon the following documents:
a) certificate issued by Registrar of Societies is Ex.PW1/1;
b) election record is Ex.PW1/2;
c) letter of authorization is Ex.PW1/3;
d) the khasra girdwari of shamlat thok brahmins and thok CS No.201//2013 Shree Kalkaji Mandir Prabhandhak Sudhar Committee vs Sarsswati Page 9 of 17 jogians is Ex.PW1/4;
e) copy of judgment dated 28.12.1955 passed by Sh. G. C. Jain, sub Judge, Delhi is Ex.PW1/5;
f) Judgment dated 10.04.1964 passed by Hon'ble High Court of Punjab & Chandigarh is Ex.PW1/6;
g) complaint dated 01.03.2012 is Ex.PW1/7;
h) complaint dated 03.03.2012 is Ex.PW1/8;
i) photographs of the vacant passage are Ex.PW1/9 and Ex.PW1/10 respectively;
j) order / judgment dated 22.11.2011 is Ex.PW1/11; and
k) order / judgment dated 14.02.2012 is Ex.PW1/12.
7. Plaintiff has also examined Sh. Harish Bhardwaj as PW2 and Sh. Brij Mohan Bhardwaj as PW3. The witnesses have been examined and thereafter PE was closed.
8. In DE, defendant has examined herself as DW1 to prove her defence. DW1 has tendered her evidence by way of affidavit. She has relied upon documents Ex.DW1/A to Ex.DW1/D. Ex.DW1/A is copy of aadhar card, however, remaining documents have not been filed by the defendant on Court record and thereafter DE was closed and matter was fixed for final arguments.
9. Arguments heard. Record perused.
10. ISSUEWISE FINDINGS:
CS No.201//2013 Shree Kalkaji Mandir Prabhandhak Sudhar Committee vs Sarsswati Page 10 of 17 Issue no.1:Whether the plaintiff is entitled for a decree of permanent injunction as prayed for ? OPP 10.1. It is settled principle that in trial cases, the burden of proof is upon the plaintiff to prove his case and the case of plaintiff has to stand on its legs. The criteria of burden of proof is, 'preponderance of probabilities', in other words, Court has to consider out of two parties, whose version appears to be more probable to be true.
10.2. In the present case, as per plaintiff, the property belongs to Shree Kalkaji Mandir and the land as underneath belongs to shamlath brahmins and thok jogians bearing khasra no.626, min 630, 1202/627, 633 min and 624, 625, 626 min, 1201/627, 630, min 633 and 1203/627 measuring 356 bighas 8 biswas. The defendant is illegally possession of dharamshala of mandir Shree Kalkji Mandir and on 28.02.2012 defendant opened a shop of Pool and Prasad which was removed by the police on complaint of pujaries etc. Now, defendant is threatening to reopen the stall, hence the present suit for injunction thereby restraining the defendant.
On the other hand, defendant has stated that she is residing in dharamshala since last 35 years and plaintiff society which was formed about three years back has no locus standi to challenge to file the present suit.
CS No.201//2013 Shree Kalkaji Mandir Prabhandhak Sudhar Committee vs Sarsswati Page 11 of 17 10.3. In the present case, plaintiffs have not filed any site plan and as per them, the Shree Kalkaji Mandir is situated in khasra no. 626, min 630, 1202/627, 633 min and 624, 625, 626 min, 1201/627, 630, min 633 and 1203/627 measuring 356 bighas 8 biswas but otherwise also the Court can take judicial note of judicial proceedings i.e. (i) CS No. SLP (3) 245253/2013 (ii) CS No.288/10/06 KishanChand Sharma & Ors. vs Chet Ram Sharma & Ors. dated 24.01.2011, (iii) CS no.277/13 Vinod Bhardwaj vs Mahant Surender Nath decided on 12.02.2016. In all these proceedings, it has been noted that a large of the land of Shree Kalkaji Mandir has been acquired by the Government, though plaintiffs are still relying upon the revenue records of 1960s.
10.4. The onus is open the plaintiff society to show that the passage shown in photograph Ex.PW1/9 and Ex.PW1/10 is situated on the land which is still under the ownership of Mandir Shree Kalkaji and this portion does not belong to the land which has been acquired by the government but plaintiff has not led any evidence to show in which portion this particular passage in question falls. 10.5. Further, during evidence of PW1 has categorically stated that "I have not filed site plan with regard to the place in question. Vol. Photographs have been filed relating to the site. It is wrong to suggest that in the absence of site CS No.201//2013 Shree Kalkaji Mandir Prabhandhak Sudhar Committee vs Sarsswati Page 12 of 17 plan the site plan the place in dispute cannot be identified".
Thus, as per plaintiff, the property in question is identifiable from the photographs Ex.PW1/9 and Ex.PW1/10 but the defendant has objected to mode of proof these photographs and despite opportunities given to them, plaintiff has not led any evidence to prove these photographs as per law. Nor PW has produced negative despite the fact that Ex.PW1/9 and Ex.PW1/10 have been relied upon by PW1 and apart from PW1, the plaintiff has examined PW2 and PW3 also.
10.6. Further, defendant has objected to the authority of plaintiff but in the whole evidence, plaintiff has not filed proper proof of registration of plaintiff society. During cross examination, PWs have filed only photographs of registration certificate and copy of electoral register but plaintiffs have not produced the original registration certificate. Further, PW1 has admitted during cross examination that:
"It is correct that the memorandum of association and bye laws, aim and objective of the plaintiff society have not filed in the present suit. I have not filed any such annual report in the Court."
10.7. Further, plaintiff has not led any evidence to prove that even the passage which plaintiff is claiming to be emergency passage CS No.201//2013 Shree Kalkaji Mandir Prabhandhak Sudhar Committee vs Sarsswati Page 13 of 17 is actually used as an emergency passage. From the photographs, the nature of the passage is not clear because there is no board or hoarding on the said passage mentioning it as an emergency passage. 10.8. Further, in the plaint, plaintiff has stated that defendant has opened the shop of flower and Prasad on 28.02.2012 which was closed on 01.03.2012 but plaintiff himself has filed certified copy of WS filed by the defendnat in other proceedings i.e. in CS no.425/2004 Ex.PW2/1 in which defendant has stated that:
"The property in dispute is partly owned by NDMC where the defendant no.8 is using for flower and parsad shop. The dharamshala no.1 does not belong to Kalkaji Mandir the same is belongs Shri Manohar Lal Gaur now a legal possession of the answering defendant. The defendant since last 20/25 years is tenant of the said Dharamshala of Manohar Lal Gaur. Although the said dharamshala does not belong to Kalkaji mandir".
Thus clearly, the defendant was running the shop of flower and Prasad even before 2004 and the stand of plaintiffs in the present suit appears to be a contradictory while the plea of defendant appears to be true.
10.9. Further, plaintiff has sought the relief that defendant had restrained from creating nuisance and trespassing in the passage of dharamshala, Chabutra, land of the temple Shri Kalkaji which is the name of shamlat thok brahmins and thok jogians. This relief is a CS No.201//2013 Shree Kalkaji Mandir Prabhandhak Sudhar Committee vs Sarsswati Page 14 of 17 vague relief. Firstly, it is an admitted position that most of the lands mentioned by the plaintiff in the prayer clause has been acquired by the Government and whole land at present does not belong to Kalkaji mandir. Secondly in prayer clause, plaintiff is seeking relief regarding passage, dharamshala, chabutara, land of mandir while in the plaint as well as during evidence and final arguments and written arguments, plaintiff has only focused upon plea that defendant has installed a shop on emergency passage thereby obstructing emergency exit which is a threat to the life of devotees. Thus, clearly the plaintiff is seeking wide relief in the prayer of plaint while the evidence and arguments are focused on narrow relief of emergency passage only. Further, the plaintiff has relied upon judgment namely Mars Incorporated vs Krishan Kumar Mukherjee 2003 (26) PTC 60 DEL. As far as this judgment is concerned, undoubtedly the plaintiff can file a suit on the basis of reasonable apprehension or threatened apprehension but in the present case plaintiff has failed to give clear vision of the relief and further the plaintiff has taken self contradictory stand.
10.10. Further, as per plaintiffs, they are taking tehbazari from the other vendors but plaintiffs have not filed any receipt or any other document to support this views.
10.11. In view of above discussion, it is clear that the plaintiff CS No.201//2013 Shree Kalkaji Mandir Prabhandhak Sudhar Committee vs Sarsswati Page 15 of 17 has failed to prove its averments. Therefore, issue no.1 is decided in favour of defendant against the plaintiffs.
11. Issue no.2 Whether the present suit is not maintainable in the eyes of law ? OPD It has been argued on behalf of defendant that simplicitor suit for injunction without consequential relief is not maintainable. Defendant has relied upon the judgment of Hon'ble High court of Delhi: (M. No.17561/2008 Devender Lal Mehta vs Sh. Dharmender Mehta & Ors. decided on 14.05.2009.
On the other hand, as per plaintiffs, suit is maintainable in the present form. Arguments heard. Record perused.
12. The facts and evidence of the case have already been discussed during findings upon issue no.1. After perusing the record, it is clear that the suit is maintainable in the present form. Therefore, issue no.2 is decided in favour of plaintiffs against the defendant.
13. Whether the plaintiffs have no cause of action ? OPD The facts and evidence of the case have already been discussed during findings upon issue no.1. Without repeating the discussion, in view of findings upon issue no.1, this issue is decided in favour of defendant against the plaintiffs.
14. As issues no.1 and 3 have been decided in favour of defendant against the plaintiffs, suit of the plaintiff is liable to be CS No.201//2013 Shree Kalkaji Mandir Prabhandhak Sudhar Committee vs Sarsswati Page 16 of 17 dismissed. Accordingly, suit of the plaintiffs is dismissed as plaintiffs have failed to prove their averments. Parties to bear their own cost.
15. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Pronounced in the open Court (PRABH DEEP KAUR)
th
on this 09 May, 2016. Civil Judge, South East,
Saket Court, New Delhi.
CS No.201//2013 Shree Kalkaji Mandir Prabhandhak Sudhar Committee vs Sarsswati Page 17 of 17