Rajasthan High Court - Jaipur
Pt Bansidhar Sharma Devagya vs State & Ors on 24 April, 2018
Author: Prakash Gupta
Bench: Prakash Gupta
HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT
JAIPUR
S.B. Civil First Appeal No.86/1979
Pt. Bansidhar Sharma Devagya (since deceased) represented by
1/1. Vijay Kumar Sharma)
1/2. Mohan Lal Sharma ) Sons of Shri Bansidhar
1/3. Purshottam )
1/4. Smt. Krishan Kanta Misra W/o Shri Mahesh Kumar Misra d/o
Shri Bansidhar Sharma
All residents of Baiji Ka Mandir, Manak Chowk Chaupar,
Jaipur.
----Appellants
Versus
1. The State of Rajasthan.
2. The Commissioner, Devasthan, Rajasthan, Jaipur.
3. The Collector, Jaipur District, Jaipur.
----Respondents
_____________________________________________________ For Appellant(s) : Mr. R K Agarwal, Senior Counsel assisted by Mr. Mamoon Khalid & Mr. Ram Rakh Sharma For Respondent(s) : Mr. N K Maloo, Senior Counsel assisted by Mr. L L Gupta _____________________________________________________ HON'BLE MR. JUSTICE PRAKASH GUPTA Judgment Reportable 20/04/2018
1. The instant first appeal under Section 96 of the CPC has been preferred against the judgment and decree dated 26.11.1977 passed by the Additional District and Sessions Judge No.1, Jaipur City (hereinafter referred to as 'the trial court') whereby the trial court dismissed suit No.71/1974 (86/1981) filed by Shri Banshidhar Sharma, who died during the pendency of the (2 of 41) [CFA-89/1979] suit. For the sake of convenience, the parties will be hereinafter referred to as the plaintiff and the defendant. FACTS IN BRIEF
2. Plaintiff filed a suit in the trial court wherein a prayer was made that the defendants may be restrained from interfering or in any way disturbing the management and affairs including Seva Puja and Bhograg of the temple of Thakurji Shri Mahadevji and Thakurji Shri Laxmi Narainji and the properties in possession of the plaintiff. Besides this, other relief was also claimed.
It is averred in the plaint that the temple of Thakurji Shir Mahadevji situated in the South Eastern quadrant of Choper Sanganer, now known as Baiji Ka Khanda, was founded, worshiped and managed as their own temple by the ancestors of the plaintiff. It was also stated that the said temple of Thakurji Shri Mahadevji was rebuilt and rejuvenated by Shri Jamnaji Manas with full recognition of the sole rights of the plaintiff's ancestor Pt. Jairamji and his descendants about 'Mahantship', 'Shebaitship' and rights of the management of the said temple in Vikram Samwat 1766. It was also submitted that the idol of Thakurji Shri Laxmi Narainji was installed thereafter by Smt. Vichtra Kumariji in presence of Maharaja Sahib Sawai Jai Singh of Jaipur in Samwat Year 1794 and at that time, Pandit Jagannathji Chela of Swami Sanwaldas Brahmin Gaur Dotolia of Bilochi was the Shebait of the said temple of Thakurji Shri Mahadevji and idol of Thakurji Shri Laxmi Narainji. Sometime in Samwat Year 1925, during the regime of Maharaja Sawai Ramsinghji of the then Jaipur State, the plaintiff's ancestor Pt. Mahadevji, the then Mahant and Shebait of the temple of (3 of 41) [CFA-89/1979] Thakurji Shri Mahadevji and Thakurji Shri Laxmi Narainji proceeded on a pilgrim and he handed over the management of Sevapuja of the temple of Thakurji Shri Mahadevji with his own men, and with regard to the management of the temple of Shri Laxmi Narainji, Pt. Mahadevji requested the "Dharmarth Vibhag"
of the then Jaipur State to look after the same during their absence and in order to meet the expenses thereof, authorized the said "Dharmarth Vibhag" to realise and collect the rental income of the 24 shops situated below the temple. From that time, the Jaipur State begun to realise and collect rent of the said shops and to manage the temple. On return from pilgrimage, the ancestors of the plaintiff took possession of the property from the persons, who were managing the same in his absence and resumed Sevapuja of the temple of Shri Mahadevji. A request was made to the erstwhile Jaipur State to handover the charge of the temple of Shri Laxminarainji and also to render accounts but that was not done and the matter was pursued sometime in 1955. The Hon'ble Minister of the State of Rajasthan for Devasthan Department decided to entrust the management of the temple of Shri Laxminarainji as mentioned in the order dated 21.01.1955 sent by the Secretary to Government, which was conveyed to him on 22.02.1955 by the Assistant Commissioner, Devasthan. It was mentioned that he would not be entitled to any income at present derived from the shops and houses attached to the temple. He will manage the affairs of the temple from the budget allotment only sanctioned for the purpose, and in pursuance to the same, the management including Sevapuja and Bhograg of the said temple (4 of 41) [CFA-89/1979] of Takjurji Shri Laxmi Narainji was handed over to him on 24.02.1955 and since then, he was managing the affairs. It was further stated that the Assistant Secretary, Revenue Department, Government of Rajasthan, Jaipur sent a letter dated 02.07.1958 to the Commissioner, Devasthan, Udaipur, by which order dated 21.01.1955 has been cancelled.
3. The plaintiff that the Government of Rajasthan or any of its Department had got no right whatsoever to interfere and intermeddle in the plaintiff's management of the affairs including Sevapuja and Bhograg of the said temples of Shri Mahadevji and Shri Laxmi Narainji as the same belonged to him and are the properties of the plaintiff and his ancestors, under absolute and complete gift in which the dedicators did not keep any rights in themselves and the same are properties of the plaintiff and he is the 'Mahant' and 'Shebait' of the said temple. The State Government has no right to deprive and detain the income of the said shops and he is entitled to claim accounts. The plaintiff further averred that some portion of the premises of the temple is occupied by the Telephone, Education, Water Works Departments for which separate steps are being taken by the plaintiff. It is also pleaded in the plaint that the order dated 02.07.1958 was not a Government order and has no force of law to cancel the previous order dated 21.01.1955 which was passed in the capacity of trustee. It was further pleaded that the plaintiff is the 'Shebait' and 'Mahant' of the temple. The defendants were bent upon taking possession of the temple by dispossessing him and therefore, they were to be restrained.
(5 of 41) [CFA-89/1979]
4. Refuting the plaint, the defendants submitted their written- statements, contending that the suit property was constructed by the erstwhile State of Jaipur, which by virtue of the merger became the property of the State Government and since then, the management of the property has remained with the government.
It was denied that the temple in dispute was of the plaintiff's ancestors. It is stated that it was never founded by the ancestors of the plaintiffs nor it was managed or worshiped by the ancestors of the plaintiff. It is also averred that the temple in question was all along managed by the then Jaipur State through its servants and after merger is being managed by the State of Rajasthan. It was also denied that the temple was ever rebuilt or rejuvenated by Shri Jairam Ji Manas. It is also statted that Pandit Jairamji and his descendants were not 'Mahants and 'Shebaits' of the temples and had no right of management of the temple and Pandit Jairamji was not the ancestor of the plaintiff. It is also stated that no recognition was given about the Mahantship/Shebaitship of the temple of Jairamji Manas. Pandit Jamna Ji Manas was never managed the temple. It is also stated that no gift of the temple with any right of management or the Bagichi or any other property was ever made by Vichitra Kumarji in favour of the plaintiff's ancestors. It is also stated that the plaintiff's ancestors never exercised any right over the temple and its properties and the properties were never their personal property. It is also stated that Pandit Mahadev was not the Mahant of the temple. It is also denied that he ever went to any pilgrimage or he ever requested the 'Dharmarth Department' or the then Jaipur State to look after (6 of 41) [CFA-89/1979] the management of Sevapuja during his absence nor he ever authorised the said 'Dharmarth Department' to realise and collect rent of 24 shops.
5. Admittedly, on a request being made by the plaintiff, he was indeed granted the permission to offer daily prayers but the status of the plaintiff was never more than an employee. Later, the plaintiff was appointed as 'Bhandariya' too. As per the defendants, the management of the Laxminarayan temple was indeed given to the plaintiff in 1955 but certain conditions were imposed on the plaintiff. After the order dated 02.07.1958, the plaintiff was appointed as the caretaker of another temple and after this order, the plaintiff does not have any interest/right in the temple in dispute. It was also mentioned that the suit was barred by limitation and a prayer was made to dismiss the suit
6. On the basis of the pleadings of the parties, the trial court framed the following issues:-
"1. Whether the suit temples were founded by the plaintiff's ancestors and his ancestors were Shebait and Mahant of the temples entitled to manage the same?
2. Whether the said temples and 24 shops attached to them were founded, built and maintained by the former Jaipur State and managed through their servants?
3. Whether the plaintiff is in possession and management of the suit temples in his own rights and not on behalf of the State as their Pujari or Servant?
4. Whether Pt. Mahadevji was the Mahant and Shebait of the suit temples and he handed over management of the temples and shops attached to them to the Dharmarth Vibhag of the former Jaipur State in St. 1925 for safety and security and proper management (7 of 41) [CFA-89/1979] as he was going on long pilgrimage?
5. Whether the plaintiff is the descendant of Pt. Mahadevji and entitled to claim the possession of the temple and shops and the account of the income thereof for the period since St.1925 from the defendants?
6. Whether the notice under Sec.80 C.P.C. is defective?
7. Whether the suit is within time?
8. Relief ?"
7. Both the parties produced oral as well as documentary evidence and the trial court after hearing both sides, by the impugned judgment and decree, decided issues numbers 1, 3, 4 & 5 against the plaintiff. Issue numbers 2 and 7 were partly decided in favour of the plaintiff and partly in favour of the defendants and issue number 6 was decided against the defendants. Finally the suit was dismissed, against which the instant first appeal has been filed.
8. A coordinate Bench of this court allowed the appeal vide its judgment dated 19.11.1997 and set aside the judgment and decree dated 26.11.1977 passed by the trial court. The said judgment was challenged by the defendants before a division bench of this court in Civil Special Appeal No.78/1998. The division bench set aside the judgment of the single bench and passed the following order:
"1. By way of this appeal, the appellant has challenged the judgment and order of the learned Single Judge whereby the learned Singhle Judge vide order dated 19.11.1997 has allowed the first appeal preferred by the respondents herein.
2. The matter was heard last time by us at length both for (8 of 41) [CFA-89/1979] interim as well as final order.
3. Looking to the document which are sought to be relied upon were not considered by the learned Single Judge in right perspective. In that view of the matter, with the consent of the counsel for the respondents has contended that instead of hearing the matter on merits, the matter may be remitted back to the learned Single Judge to decide the matter afresh.
4. In that view of the matter, with the consent of the parties. We set aside the judgment of the learned Single Judge dated 19.11.1997 and the matter is remitted back to the learned Single Judge. However, it will be open for the appellant to move an application for modification or vacation of the interim relief which was granted even though the suit was dismissed. In that view of the matter, if such an application is filed, the learned Single Judge will consider the same on merits and will decide the same afresh, in accordance with law. It is made clear that if request is made before the learned Single Judge for expediting the matter the learned Single Judge will accede to the request and decide the matter expeditiously.
5. The appeal stands disposed of, accordingly."
9. It is in the above background that the matter has come up before this Court for hearing.
10. I have heard the counsel for both the parties. SUBMISSIONS BY COUNSELS
11. Learned Senior Counsel R.K Agarwal, appearing on behalf of the appellant contended that the learned trial court partly decided issue no.2 against the defendants and held that the defendants have failed to prove that the temple in dispute was founded and constructed by the erstwhile State of Jaipur and so was the property appurtenant to it. Despite observing and holding so, the trial court gravely erred in dismissing the suit. It is the contention (9 of 41) [CFA-89/1979] of the learned counsel that the disputed property was given to the forefathers of the plaintiff as a gift and since then the forefathers of the plaintiff and himself has been in management and possession of the suit property as the 'Shebait' and 'Mahant'. The relevant documents which prove so are also on record. The learned counsel has further contended that as per the defendants the temple in dispute and the property appurtenant to it was built and constructed by the erstwhile State of Jaipur and thereafter, it vested in the State Government and it has been admitted in the testimony that all the relevant record exists with the defendant yet no such record was ever produced by the defendants and proved in the court. Therefore, adverse inference should be drawn against the respondents. It was next contended by the learned counsel that (Exhibits 24 to 31) which are admitted and proved documents clearly go on to show the ownership of the property in favour of the forefathers of the plaintiff and also that the suit property was gifted to them. The learned trial court failed to consider and examine these documents in the right perspective. Likewise, numerous old documents which have been accepted by the defendants prove that the management and possession of the suit property vested in the forefathers of the plaintiff and the plaintiff's family has been carrying out the daily prayers, religious rites and management of the property for a long time. In addition to this, Exhibits 34 to 49, which are rent notes also clearly show that the suit property was let out by the plaintiff from time to time and rent was received by him as landlord. It is next contended by the learned senior counsel that the document on the basis of (10 of 41) [CFA-89/1979] which the trial court came to the conclusion that the plaintiff was in possession of the property as a mere employee/functionary of the state could not be relied upon as the plaintiff was able to prove it through his testimony that he was made to execute the said documents under compulsion/coercion. The documents allegedly admitted by the plaintiff explained by him in his testimony by stating that the same were got executed by him under compulsion/coercion, therefore, so called admission is meaning less. The written and oral evidence on record prove it beyond an iota of doubt that the plaintiff and before him, his forefathers had management and possession of the suit property but despite this, the trial court decided issue no,1 against the plaintiff and therefore committed a grave error. It was next contended by the learned counsel that Sri Jagganath, Ramkinkar and Ramsevak were all ancestors of the plaintiff. Though no documentary evidence was produced by the plaintiff to prove the same apart from oral testimony in the trial court yet, the plaintiff- appellant produced a certified copy in the form of his family genealogy as additional evidence. This document has already been taken on record by the court and there was no objection on part of the defendants regarding this. According to the family tree, it is clearly proved that Ramkinkar, Ramsevak & Jagganath were the forefathers of the plaintiff and because of this, the management and possession of the plaintiff over the suit property stands proved. It is submitted that vide (Exhibit-1) dated 21.01.1955, the management of the disputed temple was handed over to the plaintiff, which show that the plaintiff was the rightful claimant of (11 of 41) [CFA-89/1979] the suit property. Learned trial court has not considered (Ex-1) in right perspective. It is next contended by the learned counsel that the Additional Advocate General of the State has given an opinion that the plaintiff was in possession over the temple in dispute, the garden behind it and the residential houses below it and the State Government does not have any document which proves that the disputed property vested in the State Government and the temple in dispute was built by the erstwhile state of Jaipur. In these circumstances, it would be appropriate to reach a settlement. It is prayed by the learned counsel for the appellants that under order 41 Rule 27 of CPC to take the opinion of the AAG on record. This document is necessary for the just disposal of this appeal.
12. Briefly put, the contention of the learned counsel is that there is enough documentary evidence on record to show and prove that the disputed temple was founded by the ancestors of the plaintiff and it was gifted by Smt. vichitra Kumari to the forefathers of the plaintiff thereafter.
In support of his contentions, the counsel placed reliance on the following decisions:-
(1) (1998) 1 SCC 756: General Court-Martial and Others Vs. Col. Anitej Singh Dhaliwal, (2) AIR 1968 SC 1413: Gopal Krishnaji Kethar Vs. Mohamed Haji Latif and Others, (3) AIR 1971 SC 2057: The Bihar State Board of Religious Trust, (Patna) Vs. Mahant Sri Biseshwar Das, (4) AIR 1953 SC 98: Sha Mulchand and Co., Ltd. Vs. Jawahar Mills Ltd., Salem, (5) AIR 1963 SC 1638, Tilkayat Shri Govindlalji Maharaj etc. Vs. State of Rajasthan & Ors.
(12 of 41) [CFA-89/1979]
13. Opposing the arguments put on behalf of the plaintiff, Sri N.K Maloo contended that there is no evidence available on record which shows that the temple in dispute and the property appurtenant to it were in the management and possession of the forefathers of the plaintiff and it was ever given as a gift to them. Further, there is no evidence available on record regarding the genealogy of the plaintiff. In this regard, no family tree was produced before the trial court. It is equally not proved as to who became the heirs of Jagganath and how the plaintiff has any relation to Jagganath's family or lineage. Whatever evidence is available on record regarding this is contrary to the claims of the plaintiff. It is also the contention of the learned counsel that the plaintiff in this case has not produced any gift deed by which the said temple is alleged to have been entrusted to the plaintiff's ancestors. There is no iota of evidence on record that the said temple was established in Samwat Year 1794 and it was ever entrusted to the plaintiff's ancestors. There is no evidence worth in name as to when the temple of Mahadevji was built. The contention of the plaintiff (PW-1) that the temple of Mahadevji was established by Pandit Jairamji is incorrect. It is also contended that there is no documentary evidence that any additions or alterations were made by Pt. Jai Ramji. It is also submitted that there is no evidence to the effect that the ancestors of the plaintiff ever built the temple or handed over possession of the temple to the Devasthan Department, Jaipur State for management. It is also the contention of the learned counsel that unfortunately, the court was misled into allowing the appeal because of the (13 of 41) [CFA-89/1979] appellant's reliance on the (Exhibit-25) which was different from the (Exhibit-25) that was marked and available on record of the trial court. This shows how the plaintiff wants to get a favourable judgment by the court at any cost. It is also the contention of the learned counsel that the deceased plaintiff Banshidhar was an employee/official in the Devisthan Department and he was appointed to do daily prayers in the disputed temple on fixed salary and he was afterwards employed as the 'Bhandari' of the temple. All these facts have been duly proved by documentary evidence and all of them have been accepted by the plaintiff in his statements/testimony too. It is further contended by the learned counsel that though the additional evidence i.e. copy of the genealogy of the plaintiff was taken on record by the court under Order 41 Rule 27 of CPC yet the said copy of genealogy is not a proved and verified document since it is not a public document Thus, in the absence of original documents and without proof as to why the concerned department was keeping genealogy as relied upon by the plaintiff, the said document cannot be said to be proved as per section 35 of the Indian Evidence Act. It is also submitted by the learned counsel that the findings of the trial court on issue no. 2 so far as it has been decided against the defendants is against the material on record and is perverse. The defendants have been able to produce enough documentary evidence which prove that the temple in dispute and the properties appurtenant thereto were built by the erstwhile Jaipur State and later on got vested in the State Government of Rajasthan. It is also the submission of the learned counsel that (14 of 41) [CFA-89/1979] the plaintiff has himself accepted that he was appointed as Pujari (priest) by the State Government, that he is still the employee of the state, that he got salary from the State Government and he also used to seek the permission of the State Government to carry out renovations in the temple from time to time. Since the plaintiff has himself accepted these facts, there was no need for the defendants to bring additional documentary evidence to prove that the temple was indeed founded and constructed by the erstwhile Jaipur State, which later on got vested in the State Government. Undisputedly, the rent from the shops beneath the temple has been received and appropriated by the government and the tenant executed the rent-agreements with the State Government only. In view of these submissions, the learned counsel prayed that the findings by the trial court on issue no. 2 so far as they go against the defendants are liable to be set aside. In this regard, the defendants have already presented a prayer, which deserves to be accepted by the court. It is further submitted by the learned counsel that the plaintiff has himself accepted that the temple in dispute was built by Smt. Vichitra Kumari and Vichitra Kumari was said to have belonged from the Meena community whereas she actually belonged from the royal family of Jaipur and she did not belong to the Meena community, which is manifest from the evidence on record. It is also the submission of the learned senior counsel that the onus of prove the factum of management and possession over the suit property was on the plaintiff and he failed to discharge the said burden. The plaintiff cannot take advantage of the weaknesses in the defendants' case and he has to stand on (15 of 41) [CFA-89/1979] his own legs. It also submitted by the learned counsel that there has been complete absence of essential averments in the plaint. Neither the family tree has been shown and mentioned in the plaint nor was there any evidence or clear assertion as to how and when the plaintiff has been in possession over the suit property as the owner. It is also the submission of the learned counsel that the application filed by the defendants under order 41, Rule 27 of the CPC should be allowed to take additional evidence on record since they would help in the proper and just adjudication of the appeal. Finally, the learned counsel submitted that the appeal should be dismissed and application which was preferred with the prayer that the possession over the suit property which was handed over to the plaintiff after their second stay application, should be given back to the defendants and the appeal, along with the first and second stay applications should be dismissed.
In support of his contentions, the learned counsel relied on the following case laws.
(1) AIR 1954 SC 526: Moran Mar Bassellos Chatholicos and another Vs. Most Rev. Mar Poulose Athanasius and Others, (2) (2012) 8 SCC 148: Union of India Vs. Ibrahim Uddin and another, (3) (2017) 9 SCC 579 : State of Uttarakhand and another Vs. Mandir Sri Laxman Sidh Maharaj, (4) AIR 2012 SC 2010, A. Shanmugam Vs. Ariya Kshatriay Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, (5) (1977) 2 SCC 611 : Onkar Nath and Others Vs. The Delhi Administration, (16 of 41) [CFA-89/1979] (6) MANU/PH/1617/2010 dated 25.05.2010 Shri Sham Singh (since deceased through his LRs.) and Ors. Vs. Sarwan Singh and Anr.
14. I have considered the rival submission and perused the material on record.
15. Firstly, as far as the application under order 41. Rule 27 of the CPC which was preferred by the defendants to bring additional documents on record is concerned, after perusal of the application along with the documents attached thereto, I find that that all the documents are mere photocopies. The normal rule regarding taking additional documents on record during the pendency of an appeal is that the appellate court should not normally allow and accept any documents beyond the evidence taken by the trial court One exception to this rule is order 41 Rule 27 of the CPC. The Hon'ble Supreme Court in Union of India Vs. Ibrahim Uddin and another (supra) has held that the appellate court can take additional documents on record under order 41, Rule 27 only upon the satisfaction and compliance of all the conditions mentioned therein and this provision i e. Order 41, Rule 27 should be used sparingly.
The additional documents which are prayed to be taken on record are some letters and internal note sheets of the department. Similarly, the additional documents prayed to be taken on record under application under order 41, Rule 27 of the CPC filed by the plaintiffs-appellants also relate to the opinion of the learned AAG given in relation to the compromise and the minutes of the meeting. As regards these applications, these (17 of 41) [CFA-89/1979] documents do not seem to be relevant, necessary and indispensible in deciding this appeal. Thus, all the applications are dismissed.
16. Before going into the merits of the case, I would like to discuss rulings cited by the learned counsel for the parties.
In General Court-Martial and Ors. (Supra) while dealing with conditions for applicability of documents containing in admission of the signatories thereto as provided in Section 94 of the Evidence Act,1872. It has been held in para 17 as under:-
17. None of the reasons given by the High Court is sustainable. A perusal of Section 94 of the Evidence Act shows that it has no applicability whatever. The Section reads thus:
94. Exclusion of Evidence against application of document to existing facts:-
When language used in a document is plain in itself and when it applies accurately to existing facts, evidence may not be given to show that it was not meant to apply to such facts"
The Section will come into play only when there is document and the language of it has to be considered with reference to a particular factual situation. That Section will apply only when the execution of the document is admitted and no vitiating circumstance has been put forward against the same. In the present case, the document in question is a proceeding of the Board. If at all, it can only be said that said document contains an admission made by the signatories thereto that they had checked the materials and the serviceability thereof. It is well settled that an admission can be explained by the markers thereof. In Naqubai Versus B. Shama Rao AIR 1956 S.C. 593 the Court held an admission is not conclusive as to the truth of the matter stated therein and it is only a piece of evidence, the weight to be attached to which must depend upon the circumstances under which it is made. The Court said that it may be shown to be erroneous or nature so long as the person to whom it was made has not acted upon it at the time when it might become conclusive by way of estoppel. The same principle has been reiterated in K.S. Srinivasan versus Union of (18 of 41) [CFA-89/1979] India AIR 1958 S.C. 419, Basant Singh Versus Janki Singh AIR 1967 S.C. 341 and P.Ex-s. Co-op. T. F.S. Versus State of Haryana. AIR 1974 S.C. 1121.
In Gopal Krishanji Ketkar (supra), Hon'ble Supreme Court while dealing with Section 103 of Evidence Act, held that the Court ought to have drawn an adverse inference against the party who withheld the document germane for deciding the controversy in hand though burden of proof does not lie upon him or not called upon to produce it. Relevant para is reproduced as under:
"We are unable to accept this argument as correct. Even if the burden of proof does not lie on a party the Court may draw an adverse inference if he withholds important documents in his possession which can throw light on the facts at issue. It is not, in our opinion, a sound practice for those desiring to rely upon a certain state of facts to withhold from the Court the best evidence which is in their possession which could throw light upon the issues in controversy and to rely upon the abstract doctrine of onus of proof."
In Bihar State Board of Religious Trust, the Hon'ble Apex Court while dealing with the issue under Section 114 of the Evidence Act, held that the Court cannot draw an adverse inference against a reigning Mahant of a Temple upon his failure in producing the documents of a "gifted property "and thus in that situation, the burden of proof lies upon the Board of Religious Trust. Relevant paragraphs of the said judgments are reproduced as under:
"8. It is true that the respondent-mahant did not produce the original sanads whereunder certain lands had been gifted to the founding mahant by the various zamindars. They were not produced because, as the respondent deposed, they could not be traced, but, as stated earlier it was not impossible for the Board also, if it wanted to rely on them, to produce the record, such as that of Dharbhanga Estate, and show therefrom the nature and (19 of 41) [CFA-89/1979] the terms of those gifts. The Trial Court, however, was not entitled, (1) [1959] Supp. 2 S.C.R. 583.
686 as we shall presently. show, from the mere failure of the mahant to produce the original sanads to draw an adverse inference which it did against him.
10. Properties of the temples being thus admittedly in the possession of the mahants ever since the time of Gaibi Ramdasji, the onus of proof that the respondent-mahant held them on trust for public purposes of a religious or charitable character was clearly on the appellant-Board who alleged that it was so. The Trial Judge was, therefore, clearly in error in holding that the respondent-mahant ought to have produced the sanads and that on his failure to do so an adverse inference could be drawn, namely, that had they been produced they would have shown that the grants to Gaibi Ramdasji were for public purposes of a religious or charitable character. (see Parmanand v. Nihal Chand(1938) 65 Ind App 252 = (AIR 1938 PC 195).
In Sha Mulchand and Co., (Supra), while dealing with the question of abandonment of right and plea of waiver acquiescence or estoppel, the Apex Court in para 21 observed as under:-
"The position is different when the interest is executed and the man has a vested interest in the right, that is to say, when he is the legal owner of the shares with the legal title to them residing in him. This legal title can only be destroyed in certain specified ways. It is in my view fundamental that the legal title to property, whether moveable or immoveable, cannot pass from one person to another except in legally recognised ways, and normally by the observance of certain recognised forms. Confining myself to the present case, one of the ways in which the title to shares can pass is by forfeiture; but in that case an exact procedure has to be followed. A second way is by transfer which imports agreement. There again there is a regular form of procedure which must be gone through. A third is by estoppel, though, when the position is analysed, it will be found that it is not the estoppel as such which brings about the change. The expressions abandonment, waiver and so forth, when used in a case like the present, are only synonyms for estoppel and despite hallowed usage to the contrary, I prefer to call a spade a spade and put the matter in its proper legal pigeon hole and call it by its proper legal name. These other terms are, in my view, loose and inaccurate (20 of 41) [CFA-89/1979] and tend to confuse, when applied to cases of the present nature. A man who has a vested interest and in whom the legal title lies does not, and cannot, lose that title by mere laches, or mere standing by or even by saying that he has abandoned his right, unless there is something more, namely inducing another party by his words or conduct to believe the truth of that statement and to act upon it to his detriment, that is to say, unless there is an estoppel, pure and simple. It is only in such a case that the right can be lost by what is loosely called abandonment or waiver, but even then it is not the abandonment or waiver as such which deprives him of his title but the estoppel which prevents him from asserting that his interest in the shares has not been legally extinguished, that is to say, which prevents him from asserting that the legal forms which in law bring about the extinguishment of his interest and pass the title which resides in him to another, were not duly observed."
In Tilkayat Shri Govindlalji Maharaj etc., (supra), the Hon'ble Supreme Court while dealing with the question as to whether the temple is private or public and what are the relevant factors to decide the question observed that it would be unreasonable to contend that the Shrinath Ji Temple at Nathdwara was not a public temple. The matter was really concluded by the 'firman' issued by the Rana of Udaipur in 1934 which clearly showed that the temple was undoubtedly a public temple.
In Moran Mar Bassellos Chatholicos and Another (Supra), it was held by Hon'ble Supreme Court that it is well settled that in an ejectment suit, the plaintiff must succeed on the strength of his own title and not on the weakness of the defendant's case.
"As the suit is for possession of the church properties the plaintiffs, in order to succeed, must establish their title as trustees and this they can only do by adducing sufficient evidence to discharge the onus that is on them under issue 1(b) irrespective of whether the defendants have proved the validity of their meeting, for it is well established that the plaintiff in ejectment must succeed on the (21 of 41) [CFA-89/1979] strength of his own title. It will be noticed that the defendants' objection to the Karingasserai meeting was two-fold, (i) that the meeting had not been convened by competent persons and (ii) that notice had not been given to all the churches."
In Union of India Vs. Ibrahim Uddina and Anr., the Hon'ble Supreme Court has observed that the High Court erred in shifting burden on to Union of India as the burden was upon the plaintiff in a suit for declaration of title of ownership of land against Union of India. Relevant paras of the said judgment are reproduced as under:-
6. The registered partition deed stood duly proved and it was the proof of the title of the plaintiff/respondent no.1. The plaintiff/respondent no.1 made an application for inspection of the record before the officers of the appellant/defendant no.1 but perusal of the record was not permitted. The appellant/defendant no.1 did not produce any document to show its title and failed to produce the original record, thus, adverse inference was drawn against it in view of the provisions of Section 114 clause(g) of the Indian Evidence Act, 1872 (hereinafter called the Evidence Act).
The Will, taken on record as an additional evidence at appellate stage stood proved and thus, contents thereof automatically stood proved.
12. Generally, it is the duty of the party to lead the best evidence in his possession, which could throw light on the issue in controversy and in case such material evidence is withheld, the Court may draw adverse inference under Section 114(g) of the Evidence Act notwithstanding, that the onus of proof did not lie on such party and it was not called upon to produce the said evidence.
25. In the instant case, admittedly, the plaintiff/respondent no.1 during the pendency of his suit had made an application before the authorities under the control of the appellant/defendant no.1 to make the inspection. However, he was not permitted to have any inspection. The plaintiff/respondent no.1 did not submit any interrogatory statement or an application for making inspection or for production of the document as provided under Order XI CPC. In such a fact-situation, in view of the law referred to hereinabove, it is not permissible for the first appellate Court or (22 of 41) [CFA-89/1979] the High Court to draw any adverse inference against the appellant/defendant no.1.
83. The General Land Register and other documents maintained by the Cantonment Board under the Cantonment Act, 1924 and the Rules made thereunder are public documents and the certified copies of the same are admissible in evidence in view of the provisions of Section 65 read with Section 74 of the Evidence Act. It is settled legal position that the entries made in General Land Register maintained under Cantonment Land Administration Rules is conclusive evidence of title.
84. In view of the above, we are of the considered opinion that the appellate courts dealt with the case in an unwarranted manner giving a complete go-by to the procedure prescribed by law. The appellate courts examined the title of government instead of the plaintiff/respondent no.1. Such a course was not warranted. The title of government cannot be disputed. In any event possession of government for decades is not disputed. The plaintiff shifted the case from time to time but failed to prove his title.
85.1. The first appellate court as well as the High Court committed grave error in shifting the burden of proof on the Union of India, appellant/defendant No.1, though it could have been exclusively on the plaintiff/respondent No.1 to prove his case. 85.2. There is nothing on record to prove the grant/gift by the Maratha Government in favour of ancestors of plaintiff/respondent No.1 in the year 1800. Plaintiff/Respondent No. 1 miserably failed to prove the pedigree produced by him.
85.3. The alleged partition in the year 1819 among the ancestors of plaintiff/respondent No.1 even if had taken place, cannot be a proof of title of the plaintiff/respondent No.1 over the suit property as the pedigree has not been proved. Presumption under Section 90 of the Evidence Act in respect of 30 years' old document coming from proper custody relates to the signature, execution and attestation of a document i.e. to its genuineness but it does not give rise to presumption of correctness of every statement contained in it. The contents of the document are true or it had been acted upon have to be proved like any other fact. More so, in case the Will is ignored, there is nothing on record to show as how the plaintiff/respondent no. 1 could claim the title. 85.4. The rent note produced by the appellant/defendant No.1 before the court below does not prove anything in favour of the plaintiff/respondent. The same being a vague document is (23 of 41) [CFA-89/1979] incapable of furnishing any information and, thus, is liable to be rejected. The said document does not make it clear as who has executed it and in whose favour the same stood executed. It does not bear any date as it cannot be ascertained when it was executed. The lease deed cannot be executed without the signature/thumb impression of the lessee. The said lease does not contain any signature/thumb impression of any lessee and also the tenure of the lease has not been mentioned therein. The rent has been mentioned as Rs.22/- without giving any detail as to whether it was per day, fortnightly, monthly, quarterly or yearly or for ever. More so, there is no reference to the said rent note in the pleadings contained in the plaint, therefore, it is just to be ignored.
85.5. Had there been any Will in existence and not available with the plaintiff/respondent No.1 for any reason whatsoever at the time of institution of the suit, the plaintiff/respondent No.1 could have definitely mentioned that Will had been executed in his favour by his maternal grand-father which could not be traced. Therefore, the application under Order XLI Rule 27 CPC was liable to be rejected. Even otherwise, the Will in absence of any pleading either in the plaint or first appeal could not be taken on record. More so, the Will was not proved in accordance with law i.e. Section 68 of the Evidence Act.
85.6 The court cannot travel beyond the pleadings as no party can lead the evidence on an issue/point not raised in the pleadings and in case, such evidence has been adduced or a finding of fact has been recorded by the Court, it is just to be ignored. Though it may be a different case where in spite of specific pleadings, a particular issue is not framed and parties having full knowledge of the issue in controversy lead the evidence and the court records a finding on it.
In Mandir Sri Laxman Sidh Maharaj (supra), the Hon'ble Supreme court has observed that the court cannot travel beyond the pleadings for granting any relief as the suit filed by the plaintiff for declaring himself as "Mahant" and "Manager" of the Temple as well as seeking declaration of title over the suit property and permanent injunction, was lacking in material pleadings.
(24 of 41) [CFA-89/1979] In Shanmugam Vs. Ariya Kshatriay Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam (supra), the Hon'ble Supreme Court has observed in paras 19, 20 and 42 of the judgment that plaintiff was merely a watchman, caretaker or servant employed to look after property and hence, do not acquire interest in property irrespective of his long possession and not entitled to injunction against real owner of suit property.
In Shri Sham Singh (since deceased through his LRs.) and Ors. *(Supra), Punjab and Haryana High Court in para 14 observed as under:-
"14. The plaintiff has merely stated that the suit property was ancestral in the hands of defendant No.1 Sham Singh. He has neither detailed the pedigree table nor has he cared to trace out his lineage through which the suit property travelled. There is also no reference to any property being self acquired by defendant No.1 Sham Singh. Likewise, the plea as raised in the written statement is also totally vague. Apart from denial that the property is not ancestral, there is no evidence to prove that it was self acquired of defendant No.1 Sham Singh It is a settled proposition of law that no amount of evidence can be looked into beyond pleadings. In view of the vague pleading regarding ancestral character of the suit property being ancestral or self acquired, I am of the view that merely because the property has been stated to be ancestral without there being any collateral evidence to support such a plea, the court cannot delve upon the suggestive evidence to this effect. It necessarily, therefore, has to be discarded."
17. Apart from denial that property was not ancestral, there was no evidence to prove that it was self-acquired of defendant. No amount of evidence could be looked into beyond pleadings. In view of vague pleadings regarding ancestral character of suit property being ancestral or self-acquired, it was held, as under:-
"Merely because property had been stated to be ancestral without there being any collateral evidence to support such a plea, Court court not delve upon suggestive evidence to this effect. Partition never had sanction of law. It was not got affirmed from revenue (25 of 41) [CFA-89/1979] authorities in accordance with Section 123 of the Act, 1998. Partition document, even though was prepared, but was never acted upon so as to fructify conclusively into right of ownership by vesting and divesting all co- sharers in suit property."
Issue wise findings are as under:-
ISSUE NO. I
18. As far as issue no. 1 is concerned, this issue has two parts. The first part is whether or not, the temple in dispute was founded and built by the forefathers of the plaintiff and the second part is whether, the plaintiff's forefathers were Shaibiyat and the Mahant of the temple in dispute and because of this, the plaintiff is entitled to take care of the management of the temple.
In this regard, the learned trial court, on the basis of (Exhibits 29 and 30) observed that the foundation of the Laxminarayan Jl temple was laid by Smt. Vichitra Kumari during the presence of the then ruler of Jaipur in 1794. In Exhibit 30, Smt. Vichitra Kumari has been mentioned as "Bai ji". There is no evidence available on record which proves that Pt. Jaggannath was appointed by Smt. Vichitra Kumari and the said temple was gifted by her to Pt. Jagganath, as opposed to what is stated in Paragraph 3 of the plaint.
From (Exhibit-24), it is made out that the priest of the temple was one Ramsevak and the priest was Ramsi Kinkar The relationship that Jagganath had with these two people and in the chain of plaintiff's family line, on which clinching knot were these two people is also not clear. The plaintiff did not submit any genealogy (family tree) in the plaint which can prove that he (26 of 41) [CFA-89/1979] belonged to the family/dynasty of either Ramsevak or Ramsi Kinkar or Jagganath. Though during the appeal, a copy of genealogy family tree of the plaintiff was taken on record as additional evidence, but in the considered opinion of this court, from the copy of the genealogy, it cannot be determined and held that the plaintiff had any relation to the dynasty of the aforementioned three people. The copy of the genealogy/family tree which has been presented before the court cannot be relied on as rightly contended by the learned counsel for the defendants for the reason that these are not public documents and there is no evidence as to why the concerned department was keeping the genealogy of the plaintiff and his alleged ancestors and as to why the original document/record was not produced/called verified to prove the said document. Thus, it cannot be said from this additional evidence i.e the copy of the alleged genealogy of the plaintiff that the plaintiff had any link to either Jagganath or Ramsevak or Ramsi Kinkar.
In addition to family tree, one more document was taken on record at the instance of the appellants. A perusal of the said document reveals that it has no bearing on the case set up by the plaintiff.
19. Much emphasis has been placed by the counsel for the appellant on (Ex.24, 25, 30 & 31). A perusal on (Ex.24) reveals that the temple etc. do not belong to the plaintiff's ancestors. A perusal of (Ex.30) reveals that the Vichitra Kumari got the temple constructed and she denoted Rs.160/- and few clothes in the temple and came back after 'Darshan'. A perusal of (Ex.31) (27 of 41) [CFA-89/1979] reveals that Ramsevak & Ramsi Kinkar were only 'Pujaris' and they were not concerned with the management of the temple in any manner whatsoever.
The argument that the (Ex.A-1) to (Ex.A-4), (Ex.A-6), (Ex.A-
8), (Ex.A-11) to (Ex.A-14), (Ex.A-14/1), (Ex.A-14/2), (Ex.A-15), (Ex.A-17) & (Ex.A-18) were got executed by the plaintiff under compulsion but no evidence has been produced in this regard by the plaintiff. It is revealed that the evidence of the plaintiff and his witnesses namely, (P.W.-2) to (P.W.-13) regarding lay down the foundation of the temple is admittedly based on hearsay and the same is also not substantiated by documentary evidence.
Further, there is no document on record to show that the plaintiff or his ancestors had any relation/connection with Smt. Vichitra Kumari or that Vichitra Kumari belonged to the Meena community. The plaintiff in his testimony has stated that the gift- deed written by Vichitra Kumari was in favour of Jagganath. The alleged gift-deed (Exhibit-25) reads as under:-
"lEor 1794 fefr tsB lqnh 11 folirokj eq%] lokbZ tSiqj jke L;kgk gtwj bZuke efUnh djk[kkuk lsa ckbZ th Jh fofp= dWoj th uS lsok xksa ok] lokbZ tSiqj esa nsgjks c.kka;ks rhdh ipLVjh gqbZ rc fn;ks dherh 160 ¼,d lkS lkB lok ikap vkuk½ Fkku 5 ¼ikap½ xt 8 xt nks fxjg lkMh tjh nqeVks tjh Fkku ?kk?kjks rkytjh xks- Fkku Dapyh usa- dqVrh tjh 59 :i;s 6 vkuk 37 :i;s 10 vkuk 54 :i;s 3 iSls 9 :i;as lkMs rhu vkus 1 Fkku 2 xt 6 o fxjg 2 Fkku 1 o xt ikSus nks (28 of 41) [CFA-89/1979] Lkqokjh lokjk Jh egkjktk /khjkt goknkj ikydh lqokj gks; jkt pkSd v;ks/;k iksyh gks; Bk- lhrk oYyHk th dks njl.k dfjok Ik/kkj;k Nk lks njl.k dfj ukuhx jke lkcMk dh gosyh duS gks; jlrk eS gks; ohtSjke xhj/kj nkl lkoMk dh gosyh duS gks; pkn.kh pkSd eS ckbZ th Jh ohp= dojh th ds nSgjs Bkdqj th dks njlu djhok i/kkj;k Nk lks njlu djh pkWnuh pkSd esa gks; cktkj es gks; vtk/;k ikSy jkt pkSd esa gks; eaxy isky gks;a vanj Ik/kkj;k pkSdh o /kqdh vker jQr dkslAA lqokjh buke rkslk[kkuk Fks ls'k vljQ nhokus dkys [kkW Qkstnkj lkHkj us lhjksiko ek- ljhpUns dh lk- 59 :i;s 12 vkuk gky 74 :i;s 11 vkuk Fkku 3 phjks lqQs lh lok X;kjg :i;s Fkku 1 QsaVks xqykoh 20 :i;s Fkku 1 EkSEkqnh phdu dh lkMsa vBBkbl :i;s Fkku 1"
20. In my considered opinion this document does not in any way prove that it was in the form of a gift, through which the temple in dispute was dedicated/gifted by Smt. Vichitra Kumari to Jagganath. The name of Jagganath is not mentioned anywhere in the document. The plaintiff stated in his testimony that the idol in the Laxminarayan temple was installed and consecrated in the year 1794 on "Jaithsudi Gyaras" by a girl belonging to the Meena community called Vichitra Kumari, which was later gifted by her as 'Guru Dakshina'. The plaintiff also stated that the temple was further built and renovated by his great-grandfather and grand- father but he did not produce any document whatsoever in support of his assertions. The learned counsel for the plaintiff- appellant has however, contended that since the plaintiff was in possession of the temple in dispute as the Mahant, it was not necessary for him to produce gift-deeds or all other documents whereby the temple was gifted/given to the founding Mahant. The counsel relied on the judgement of the honorable Apex Court in Bihar State Board of Religious Trust (Supra). Having gone through the judgment, I find no force in the contention raised by the learned counsel. The aforesaid judgment is not applicable to the facts of the instant case for two reasons. First, the suit in Bihar State Board of Religious Trust v. Mahant Shri Biseswar Das (29 of 41) [CFA-89/1979] (Supra) was instituted by the Board and not the Mahant. Since, the Mahant was the defendant in the original suit and the respondent in the appeal, the burden of proof lay on the Board and not the Mahant. It was in this context that the court observed that it was not incumbent upon the Mahant to produce gift-deeds proving his title/possession. In the instant case, the suit was instituted by the plaintiff who is claiming to be the Shaibiyat/Mahant of the temple and hence, the burden of proof lies on him and he had to produce all the document which might have helped him prove his possession. Second, the aforesaid case is also not applicable because in that case, the Mahants were in possession of the temple since the time of its foundation. In the instant case, not only is the factum of gifting of the temple in dispute by Smt. Vichitra Kumari to the forefathers of the plaintiff in dispute but their possession and management over the same is also in question. Thus, reliance on the aforesaid judgmenet is misconceived.
Further, even if it is assumed for the sake of argument that the temple in dispute was managed by Jagganath, even in that case there is no document or evidence which proves that the plaintiff had any connection with Jagganath or that Jagganath was his forefather. There is no assertion in the plaint that Jagganath was the Guru of Vichitra Kumari. In my opinion, the trial court was right in observing that a shadow of doubt is cast on the assertion of the plaintiff in his own plaint wherein he has asserted that the temple in dispute was founded and built by his forefathers and the Laxminarayan ji temple was given to them by way of a gift. In (30 of 41) [CFA-89/1979] other words, the plaintiff has always claimed the suit property as personal property whereas all the other witnesses produced on behalf of the plaintiff including Ram Kishore Sharma (P.W.-2), Prabhu Dayal (P.W.-9), Laxminarayn (P.W.-10), Ramchand (P.W.-11), Gulabchand (P.W.-12) and Sanwalram (P.W. 13) that the temple belonged to Meena community and expenses for the management of the temple are still born by the Meena community. This way, the assertions of the plaintiff and the evidence on record are contradictory.
A misplaced reliance was also placed by the learned counsel for the appellants on the judgment given by the honorable Supreme Court in Tilkayat Shri Govindlalji Maharaj (supra). I do not see how the paragraphs that I was referred to have any applicability and bearing on the facts of the instant case. The court in that case was concerned the vires of the Nathdwara Temple Act, 1958 wherein one of the contentions raised on behalf of the petitioners was that the temple in dispute was the private property of the 'Tilkayat' and in order to determine the nature of the temple, the court discussed the legislative, administrative and legal powers of the erstwhile monarchs. Coming to the facts of the instant case, it is not the case that any 'Firman' ('Royal Order') was issued by the erstwhile rulers of Jaipur in relation to the temple in dispute in favour of the forefathers of the plaintiff. Further, the nature of the temple being public or private has not been raised. The only argument of the plaintiff is that the said temple was gifted by Smt. Vichitra Kumari to the forefathers of the plaintiff and one such forefather was Jagganath. Thus, the (31 of 41) [CFA-89/1979] aforementioned case would be of no avail to the plaintiff.
The issue which requires to be considered is whether plaintiff's ancestors were Mahants/Shebaits of the temple, this fact is also not at all proved by the plaintiff. No documentary evidence is produced to establish to prove the said fact.
In this manner, the plaintiff has miserably failed to prove that the temple in dispute was founded and built by his forefathers and his forefathers were 'Shebaits' and 'Mahant' of this temple and for this reason, he has a right to manage the affaris of the temple.
ISSUE NO. 2 and 3
21. As far as issue no. 2 is concerned, the trial court decided this issue partially against the defendants. The trial court held that the management of the temple is being done by the State Government and the trial court did not find it proved that the temple was found and built by the erstwhile 'Jaipur State'. Now the issue before this court is whether or not, the findings of the trial court regarding this issue were based on the material on record.
While deciding issue No.1, it has been held that the plaintiff failed to prove that the temple in dispute was founded by his forefathers. The observations of the trial court are right and correct that the State Government has not produced any evidence to prove that the temple was built by the erstwhile Jaipur State. However, these observations are not important for the controversy involved in the matter. The important fact that the trial court while deciding issue No.2 observed that the temple and the properties (32 of 41) [CFA-89/1979] attached thereto have been managed by the State Government.
22. The learned counsel for the defendants have drawn the attention of the court to the following books:-
1. 'Sawai Jai Singh written by Virendra Singh Bhatnagar, Rajasthan Hindi Granth Academy,
2. 'Kavi Atma Ram-Sawai Jai Singh Charitra',
3. Genealogical Table of Kachhawas, Sheet No.3, Maharaja, Maharani, Children of the record of Maharaja Sawai Man Singh-II Museum Trust, City Palace, Jaipur,
4. Genealogical Table of Kachhawas compiled by Rawal Harnath Singh of Dundlod, Sheet No.III,
5. Kachhawas Ki Vanshavali and contended that in view of Section 57 of the Evidence Act, the court can take judicial notice of these books. These books prove that Smt. Vichitra Kumari was the daughter of Jai Singh and she was married to Abhay Singh. In this way, it is proved that Smt. Vichitra Kumari was linked to the royal family of Jaipur. All these facts taken together go on to show that the temple was indeed constructed by the erstwhile state of Jaipur, which later got vested in the state of Rajasthan. There is nothing available on record to show that the temple in dispute was a private temple and it was entrusted or gifted by Smt. Vichitra Kumari to the forefathers of the plaintiff. On the contrary, evidence regarding this fact is on record that no independent right or interest of the plaintiff subsisted in the disputed temple and the properties (33 of 41) [CFA-89/1979] attached thereto.
Further, the documentary evidence available on record is very important. (Exhibit A-1), which was accepted by the plaintiff shows that the plaintiff addressed and sent a letter to the State Government with a request that he wants to move into and use one of the chambers of the temple since he was desirous of carrying out a religious ritual called 'Sahastrachandi Prayog', In this letter, it was further mentioned by him that number of chambers/rooms are lying vacant in the temple premises and thus, he should be allotted one. This letter was written by the plaintiff to the Devasthan Department and the Assistant Commissioner of the Devasthan Department further sent the same to the Commissioner for necessary action. After this, another letter (Exhibit-A-2) was written by plaintiff to the Assistant Commissioner of the Devisthan Department, telling him that he was desirous of performing 'Sahastrachandi Prayog' and requesting that he should be allowed to perform hymns and religious recitals in Jagmohan (a part of the temple). Vide (Exhibit-A-3), permission was granted to the plaintiff for doing so, which was valid for a month. Through (Exhibit-A-4), plaintiff requested the Assistant Commissioner of the Devisthan Department to extend the time for which the plaintiff was allowed to stay in the temple. Exhibit A-4 to A-7 are all the other letters which the plaintiff wrote to the Devisthan department to grant him various permissions in relation to the temple. The plaintiff wrote another letter (Exhibit-A 8) to the Assistant Commissioner of the Devisthan Department that the post of 'Bhandari' of the temple (34 of 41) [CFA-89/1979] was lying vacant and that he should be appointed to the said post, which was accepted by the Commissioner through an acceptance letter (Exhibit-A-9) and the plaintiff was appointed an 'Bhandari' of the temple on 25.09.54 for three months, with a salary of 4.8 rupees per month along with dearness allowances of Rupees 1.5. The plaintiff wrote another letter to the department, informing the department that the period of three months expired on 24.12.1954 and requested the department to extend his tenure. Vide (Exhibit-A-10), the plaintiff was appointed 'Bhandari' permanently with effect from 25.09.1954. The plaintiff wrote another letter to the honorable Governor (Exhibit A-11) in which a request was made to appoint him as the priest of the temple. Apart from this, the plaintiff from time to time, wrote letters to the State Government, requesting the State Government to grant him the permission to carry out repairs and renovations in the temple. The plaintiff vide (Exhibit-A-17) asked the government for arrears of his salary from 01.06.58 to 31.03.59, which amounted to 240 Rupees. The defendants also produced the salary register in which the plaintiff signed after receiving his salary. All these documents have been accepted by the plaintiff. After the death of the plaintiff Sri Vijay Kumar was taken on record as the LR of the plaintiff. Vijay Kumar too was appointed as 'Buhariya' on a salary of 2 Rupees on 18.01.1956 vide (Exhibit A-19).
If the plaintiff had been in possession of the temple in dispute as claimed by him, there would not have been any need for him to write all the above-mentioned letters. From the appointment letter of the plaintiff, it is more than clear that he (35 of 41) [CFA-89/1979] was appointed by the State Government to the post of 'Bhandari' of the temple in dispute. It is the contention of the learned counsel for the plaintiff-appellant that even if the plaintiff did sign in the salary register, that itself would not trigger the applicability of Section 94 of the Evidence Act since admission is not conclusive as to the truth of the matter stated therein and it is only a piece of evidence and the weight to be assigned to it must be decided by the court. The defendants should have produced additional evidence to prove the veracity of the salary register. The counsel relies on the judgment given by the Supreme Court in General Court-Martial and Ors. (Supra), I find that the argument by the learned counsel does not have any force. In the instant case, not only has the plaintiff himself accepted all the documents produced by the defendants but the language of the document is plain and unambiguous too. The document is to be relied on not merely because it had the signatures of the plaintiff but because it was accepted and not questioned by the plaintiff and the language therein was clear and unambiguous. That being so, in my considered view, Section 94 of the Evidence Act would come into play and because of that, there was no need for the defendants to produce any other evidence to prove the veracity thereof. Though it is true that admission of signatories is a mere piece of evidence and that itself is not conclusive, but in the instant case, the admission of the plaintiff through his signature on these documents, taken as a piece of evidence further proves the veracity of the documents.
Further, I do not find any substance in the argument put (36 of 41) [CFA-89/1979] forth by the counsel of the plaintiff-appellant that he was made to write these letters under force/compulsion and also that the rights of the plaintiff do not get extinguished because from the plaintiff's side, no material oral or documentary evidence has been adduced which could prove that the property was dedicated/gifted to the plaintiff and his forefathers and because of their own rights, they were in management of the temple.
Further, it was also the contention of the counsel for plaintiff- appellant that these letters mere show relinquishment on part of the plaintiff and since relinquishment of an immovable property can happen only by way of a registered instrument, the property still belonged to the plaintiff and they had a right of management over it. The counsel relied on the judgment by the Supreme Court in Sha Mulchand (supra). It is true that relinquishment/abandonment/waiver of an immovable property can happen only through a registered instrument as held in Sha Mulchand (supra) but in the instant case, the fact of dedication/gifting of the temple in dispute itself is not proved. If the very factum of dedication/gifting of the temple in dispute is not proved, the question of relinquishment/abandonment does not arise. So the contention of the learned counsel for the plaintiff that relinquishment of immovable property can be done only by way of a registered instrument does not hold water.
As far as the question of possession of Bansidhar over the disputed property is concerned, it is clear that Bansidhar was in possession of the property as an employee of the state of Rajasthan, that too with permission and he did not possess the (37 of 41) [CFA-89/1979] disputed property by virtue of his own right or interest.
23. Undisputedly, a coordinate bench of this court vide its judgment dated 19.11.1997 allowed the appeal. After perusal of the record, it seems to me that the appellant misled the court into passing the judgment by placing on record a false (Exhibit-25), which was altogether different from the original (Exhibit-25) which was proved in evidence and was part of the record. From this, the mala fides on part of the plaintiff become evident and he played fraud on the court and it is more than a settled law that one who plays fraud on the court is not entitled to any relief from the court.
Yet another feeble argument that was made by the learned counsel was that (Exhibits 34 to 49) which were rent-notes allegedly executed by the tenants in favor of the plaintiff, the factum of plaintiff's management of the suit property is proved. I am of the firm opinion that this argument has no substance. The plaintiff did not bring forth any documentary evidence regarding income and accruals from the said property. Further, the documents i.e. (Exhibits 34 to 49) cannot prove anything until and unless the tenants which executed them were brought to the witness box and stated that they paid rents to the plaintiff. In this regard, it is also pertinent to mention that vide (Exhibit-A2), the plaintiff was removed from the post of Pujari of the temple and all these rent-notes are post-dated. In this regard, the judgment in Ibrahim Uddina (Supra) cited by the learned counsel for the respondents is squarely applicable. In Paragraph 85.4 the Supreme Court dealing with a similar issue categorically held that the rent notes produced by the appellant would not prove any title (38 of 41) [CFA-89/1979] in favour of them. Since the rent notes were vague, the court decided to not rely on them. Similar is the case here. In view of the said judgment too, the rent notes cannot be relied on.
In addition to this, the suit filed by the plaintiff was lacking in material pleadings. For this purpose, it would be imperative to place reliance on the judgment given by the honorable Supreme Court in Mandir Shri Laxman Sidh Maharaj (Supra). The honorable court while dealing with a similar issue observed that the pleadings in a suit for permanent injunction by a 'Mahant' lacked material particulars because the 'Mahant' failed to plead who his forefathers through which he was claiming the right of management were, whether his forefathers were allotted the land/temple pursuant to any grant or lease, whether the construction of the temple was for a private purpose or public purpose, what was the family pedigree et al. In my considered opinion, the ratio in the said judgment squarely applies to the instant case. Even in the instant case, the plaintiff's suit lacked in material pleadings. It was not pleaded how he was related to the Jagganath, what his family pedigree was, who nominated him as the Pujari/Mahant of the said temple and whether he asserted his rights as Mahant/Manager of the temple against the public at large without there being any objection from the public. Failure to mention and plead all these material particulars further weakens the case of the plaintiff.
24. In view of the discussion above, findings by the trial court on issues numbers 1 to 3 are correct and the same are based on material available on record.
(39 of 41) [CFA-89/1979] Issue No.4 & 5 From the evidence available on record, it is not borne out that Mahadev was the ancestors of the plaintiff. Though, oral evidence was given in this regard by the plaintiff but the same is not reliable, as no documentary proof has been produced to substantiate the same. It is also not proved that Mahadev was the 'Mahant' of the temple. It is also not proved by the plaintiff that while going to the pilgrimage the property including temple handed over by the Mahadev to the State for managing its affairs. It has also been claimed on behalf of the plaintiff that on return from pilgrimage Mahadev submitted applications to the State Government for restoration of possession. However, the said applications have also not been produced/summoned. It is also pertinent that there is a contradiction in the pleadings and proof. It reveals from the plaint that on return from the pilgrimage, the plaintiff's ancestors submitted application to the State for return of possession whereas in the statement, (P.W.-1) has stated that Mahadev died during pilgrimage and Vijaylal submitted the application to the State. Therefore, this plea is also not sustainable.
25. In view of the above, the plaintiff has failed to prove issue No.4 & 5 and the findings of learned trial court in this regard are based on correct appreciation of material on record.
No other issue survives for consideration, as no other arguments have been advanced.
An application under Section 151 CPC was filed by the respondent in which, it was prayed that this application may kindly (40 of 41) [CFA-89/1979] be allowed and the order dated 10.10.1996 and 22.11.1996 passed by the Hon'ble High Court may be recalled/modified/reviewed and second stay application may be dismissed and position as on 10.10.1996 may be restored.
26. It transpires that on 22.11.1996 following order was passed in the second stay application filed by the appellant:-
"Consequently, the second stay is allowed. The respondents are directed not to interfere with the rights of the applicants to perform sewa pooja of the idols in the said temple and also not to dispossess the applicants from the premises of the temple in which they are residing. Respondents are further directed to restore the possession of the temple of Lord Laxminarainji, i.e., the temple in question to the applicants/appellants forthwith or in any case not later than 3rd of December, 1996 and the compliance report be submitted by the respondents in this regard immediately since the possession of the aforesaid temple was taken by the respondents in 1988 from Late Bansidhar forcibly and without due process of law and without obtaining any decree of possession or an order of eviction against Late Bansidhar or the present applicants/appellants from a competent court. The interim order, dated 10.10.1996 passed by this Court clarifying the earlier order dated 11.01.1978 passed by learned Division Bench of this Court, is confirmed pending hearing and final disposal of the appeal. Let the appeal be listed for hearing and final disposal on 17.12.1996.
In compliance of the said order, appellant had been given the possession of the suit property. Through the instant application, it is prayed that the position as existed prior to 10.10.1996 be restored or the order dated 10.10.1996 be recalled or modified. In the opinion of this court, when the appeal has been dismissed and the appellant has been found to have no rights whatsoever over (41 of 41) [CFA-89/1979] the disputed temple and properties appurtenant to it, the application deserves to be allowed and the position as existed before 10.10.1996 deserves to be restored. Application is allowed accordingly.
27. Resultantly, this appeal is dismissed with a cost of Rupees One Lakh and the plaintiff is directed to hand over the possession of the disputed property to the defendants-respondents within a period of two months from today, failing which, the defendants- respondents will be entitled to get the possession through the court. Further, the defendant-respondents are also entitled to get the costs of litigation from the plaintiff-appellant.
(PRAKASH GUPTA) J.