Himachal Pradesh High Court
Om Prakash And Ors. vs State Of Himachal Pradesh And Ors. on 7 January, 2000
Equivalent citations: AIR2001HP18
Author: Surinder Sarup
Bench: Surinder Sarup
JUDGMENT Kamlesh Sharma, J.
1. The appellants are the plaintiffs, whereas, respondents are the defendants and they will be referred to as such in this judgment. Plaintiff No. 5 is a temple by the name Shri Nandikeshwar Ji and it has sued through plaintiffs No. 1 to 4. On the other hand, defendant No. 1 is the State, defendant No. 2 is the Temple Commissioner and defendants No. 3 to 17 are the Members of the Managing Committee of the temple Shri Chamunda Nandikeshwar.
2. The plaintiffs are aggrieved by the impugned decree and Judgment dated 5-7-1997 passed by District Judge, Kangra at Dharamshala, whereby their suit for declaration and consequential relief of permanent prohibitory injunction has been dismissed. The plaintiffs claim that plaintiff No. 5, temple Shri Nandikeshwar Ji is their private temple and they being owner in possession of the same and the property attached thereto, the defendants have no right, title and interest in it and the notification No. Bhasha-F (4) 8/92 dated 24-2-1994 whereby the said temple along with temple Shri Chamunda Devi Ji has been included at Sr. No. 19 in Schedule-1 of the Hirnacbal Pradesh Hindu Public Religious Institutions and Charitable Endowments Act, 1984 (Act No. 18 of 1984), hereinafter called as the Act No. 18 of 1984, is wrong, illegal and void ab initio and liable to be quashed. The plaintiffs have also prayed that defendants may be restrained from interfering with their ownership and possession of the temple and the property attached thereto, hereinafter called as the suit property.
3. The plaintiffs have relied upon the Jamabandi for the year 1991-92 Muhal Paddar, Muza Jadrangal, Tehsi1 Dharamshala, District Kangra in which suit property, namely, land comprised in Khata No. 287/247, Khatauni Nos. 445, 446, 447, 448. 449, 450, bearing Khasra Nos. 439, 443, 495, 498, 499, 496. 438. 441/1, 497, Kitas 9 measuring 0-66-84 Meets, is recorded in the ownership of plaintiff No. 5, temple Shri Nandikeshwar Ji through plaintiffs No, 1 to 4. According to the plaintiffs, on Khasra No. 439 there is a house and on khasra No. 443 there is a kitchen and these are recorded in the possession of plaintiffs No. 1 to 4 as Mohatmims of temple Shri Nandikeshwar JI. It is further averred that khasra Nos. 495, 498 and 499 are recorded to be in possession of plaintiffs No. 1 and 2 in equal shares and khasra No. 496 is recorded in possession of plaintiffs No. 3 and 4 in equal shares. This land was granted as MUAFI to the ancestors of plaintiffs no. 1 to 4, who were rendering POOJA in temple Shri Nandikeshwar Ji. It is also averred that on khasra No, 496 plaintiffs No. 3 and 4 have got their shop on a land measuring 0-03-00 Hects. from which they are earning their livelihood and if the suit property is taken over by the defendants in pursuance to notification dated 24-2-1994, the plaintiffs would be deprived of not only their residence and lands but also their livelihood and that too without following the procedure laid down under the law. Khasra No. 439 is recorded as GAIR MUMKIN temple and in possession of AHLE-HABNUD (burial ground), whereas, khasra No. 497 is recorded as a public path. In the temple situated in khasra No. 438 the deity of Lord Shiva is installed by the predecessors-in-interest of the plaintiffs, who being Gosains believed in the supremacy of Lord Shiva and were followers of Lord Shiva and the plaintiffs being in their line of descendants are also worshippers of Lord Shiva and continue to be the owners in possession of the temple and the other suit property attached to it and enjoying its usufruct.
4. It is further alleged by the plaintiffs that contiguous to the suit property there exists a temple which is known as temple Shri Chamunda Devi Ji and the land is recorded in the ownership of the said temple through its Managing Committee comprising Khewat No. 166 min/171, Khatauni Nos. 393 & 394, khasra Nos. 435, 436 & 437, out of which on khasra No. 435 there is a Havan Kund. and on khasra No. 437 there is a temple and the plaintiffs have nothing to do with it. The further case of the plaintiff is that the suit property is their exclusive property and the Managing Committee of temple Shri Chamunda Devi Ji wanted to usurp the same in one way or the other, therefore, there has been litigation between them since time immemorial. When the Managing Committee of temple Shri Chamunda Devi Ji failed in litigation with the plaintiffs, in order to propagate amongst general public, it assumed the name of Shri Chamunda Nandikeshwar Management Committee (Regd.) and used to correspond with public in the said name and style, ignoring the fact that temple Shri Nandi Keshwar Ji is a distinct entity and had nothing to do with the temple Shri Chamunda Devi Ji, defendant No. I vide its notification dated 24-2-1994 added Shri Chamunda Nandikeshwar Ji at Sr. No. 19 in Schedule-I to Act No. 18 of 1994 and thereafter defendant No. 2 vide his office order dated 3-3-1994 constituted a committee of defendants No. 3 to 17 for the management of the temple Shri Chamunda Devi Ji, though on the assumed name of Shri Chamunda Nandikeshwar Ji temple. In pursuance to the notification dated 24-2-1994 the temple of Shri Chamunda Devi Ji, which is a public temple has been taken over by defendant No. 1, but the suit property being the exclusive property of the plaintiffs could not have been taken over by defendant No. 1, though by a communication dated 3-3-1994 sent in the name of Mohatmim of temple Shri Nandikeshwar Ji it was intimated that defendant No. 1 had taken over the temple of Shri Chamunda Devi Ji and, therefore, appointed Shri Inder Singh BhardwaJ, Tehsildar, Dharamshala for managing the affairs of the temple. According to the plaintiffs, under the garb of notification dated 24-2-1994 the defendants were threatening to interfere in the exclusive ownership and possession of the plaintiffs over the suit property. It is stated by the plaintiffs that since the property in dispute is the private property of the plaintiffs and is not meant for public at large, it cannot be described as a public religious institution by any stretch of imagination. It is also claimed by the plaintiffs that since they had constructed houses and shops over the part of the land in dispute out of their hard earnings and are in possession to cultivable land in lieu of POOJA of temple Shri Nandikeshwar Ji, the status of plaintiffs No. 1 to 4 over the suit property is that of tenant and they cannot be divested of their rights of tenancy without following the procedure prescribed under law. As per the case of the plaintiffs, the provisions of the Act No. 18 of 1994 are not at all attracted to the suit property, which is the private temple of plaintiffs No. 1 to 4 and the property attached thereto. According to plaintiffs, when the defendants failed to admit their claim the plaintiffs were compelled to file the suit.
5. In their written statement defendant No. 1 has taken the preliminary objection that the suit is under-valued for the purposes of Court-fee and jurisdiction; that the plaintiffs are not legally competent to institute the suit and that the suit is not maintainable on account of mis-joinder and non-joinder of necessary parties. On merits, the allegations of the plaintiffs are denied and it is averred that on Khasra No. 438 there is a Gair MUMKIN temple, which is recorded in the ownership of Mandir Nandikeshwar and plaintiffs No. 1 to 4 are simply MOHATMIMS (Managers of the property). The words AHLEHANUD have been wrongly translated by the plaintiffs as burial ground. Actually, the word AHLE-HANUD means the place meant for any use of Hindu community. It is specifically denied that there is any burial ground on the suit land. However, it is not denied that the temple before being taken over by the Slate of Himachal Pradesh was being managed by plaintiffs No. 1 to 4 being its MOHATMIMS. It is also asserted that suit property is a Hindu Public Religious Institution prior to 1st settlement operation in Kangra District and it was on the basis of this fact that entries of Nandikeshwari Ji temple were made in 1891, which are continuing till latest Jamabandi for the year 1991-92. Plaintiffs as well as their predecessor-in-interest never owned the suit property and were simply MOHATMIMS, managing the affairs of the temple and its property as shown in the copies of MISSAL HAQUIAT BANDOBASTfrom 1891-92, 1917-18, 1959-60 and 1971-72. The deity being the Hindu Public Religious Institution/ temple is being worshipped by Hindu community from all over the country since time immemorial and the plaintiffs being its MOHATMIMS have been managing its property. It is correct that both the temples, that is, Shri Chamunda Devi Ji and Shri Nandikeshwar Ji stand at separate khasra numbers but the premises are the same and the land underneath the temples is in the same complex and are inseparable from each other as the approach to both the temples is common. The devotees from all over the country visit both the temples and the POOJA is not considered to be complete, unless it is conducted in both the temples. Therefore, the contention that the temple of Nandikeshwar Ji is a separate temple from Chamunda Ji is wrong as far as the visiting of devotees is concerned. Since the approach to Nandikeshwar Ji temple is through the complex of temple known as Chamunda Ji, both these temples are common to the devotees as Chamunda Ji Nandikeshwar Ji temples and shown as such in the notification and further fortified in the clarification issued by the Government.
6. There is no evidence with regard to the installation of deity Lord Shiva by the predecessors-in-interest of the plaintiffs to 'presume that it was a private deity. In fact it ts located in a cave under a big natural rock. The possession of both the temples under the said notification was taken over by the defendants on 4-3-1994 in writing in the presence of plaintiffs No. 1, 3 and 4, who appended their signatures on the memo of taking over by following the procedure prescribed under law, hence there was no occasion to threaten the plaintiffs as alleged by them. However, it is admitted that plaintiffs are in possession of cultivable agriculture land in lieu of POOJA being performed by them. The land revenue of the suit land has been assigned since 1916 in favour of temple Nandikeshwar Ji vide file No. 34 of Settlement office, decided on 7-2-1916, as recorded in the column of remarks of Jamabandi for the year 1991-92 and the suit land has never been granted as MUAFI in favour of plaintiffs No. 1 to 4. The house and kitchen built on Khasra Nos. 439 & 443, respectively are not the personal property of plaintiffs No. 1 to 4 and these are built from the usufruct of the temple property for the use and benefit of visiting devotees. It is further made clear that the residential houses and kitchen of plaintiffs No. 1 to 4 are built on khasra Nos. 143, 512, 514, 515, 519 and 522, respectively, as per Jamabandi for the year 1991-92 on record. It is further averred that plaintiffs were not entitled to construct their personal shops on the temple property for their own benefit and if any shop is built by them it is for the benefit of the temple and the question of invading their livelihood does not arise because it is not their private and personal property. They have their own agricultural land in Mohal Podar and Sakoli, as per Jamabandis for the years 1991-92 and 1987-88, it is also said that the suit property being Hindu Public Religious Institution/temple, provisions of the Act No. 18 of 1994 have rightly been enforced in the present case. The possession of the suit property has already been taken over but so far shops and agricultural land is concerned after, taking their symbolic possession time has been given to the plaintiffs to remove their goods from the shops and harvest the crop from the suit land after issuance of the notification by the State of Himachal Pradesh under the Act No. 18 of 1994. The plaintiffs have no legal rights to remain in possession of the suit property and ask for the relief of injunction as prayed against the defendant.
7. Defendants No. 2. 3 and 18 have also filed separate written statement on the same lines. It is reiterated that in Nandikeshwar Ji the deity of Lord Shiva is located under a cave on a big natural rock and all devotees believe in the existence of this deity as a result of natural phenomenon and it is not the private property of plaintiffs No. 1 to 4. It is also asserted that the actual possession of Nandikeshwar Ji has been taken on the spot on 4-3-1994 since when a cash-box (GOLAK) is kept in the temple for receiving the offerings from the devotees which are being deposited in Government treasury and one of the plaintiffs, namely, Mehar Chand has been included as Member of Trust constituted under Section 18 of the Act No. 18 of 1994, who had been attending the meetings of the Trust.
8. In the separate replications filed to the written statements of defendant No. 1 and other defendants the plaintiffs have reiterated the averments made in the plaint and controverted the contrary said in the written statements.
9. On the pleadings of the parties, the following issues were framed:
1. Whether the temple-plaintiff No. 5 is a private temple of plaintiffs No. 1 to 4, as alleged, If so, its effect? OPP.
2. If issue No. 1 is decided in the negative, whether the trust constituted by defendants No. 2 to 18 vide Notification dated 24-2-1994 is wrong, illegal, null and void, as alleged. If so, to what effect ? OPP.
3. Whether the plaintiffs 1 to 4 are owners and in possession of the land in dispute comprising of Khata No. 287, as alleged ? OPP.
4. Whether the land in dispute comprising of Khasra Nos. 495. 496 and 498 was granted to the plaintiffs as Muafi, as alleged. If so, to what effect ? OPP.
5. Whether the residential houses of the plaintiffs are located in the land in dispute, comprising of khasra Nos. 439 and 443. as alleged. If so, to what effect? OPP.
6. Whether the suit is not maintainable, as alleged? OPD.
7. Whether the plaintiffs are estopped by their acts and conducts, omission and commission and acquiescence, as alleged ? OPD.
8. Whether the suit is bad for want of notice under Section 80 CPC ? OPD.
9. Whether the suit has been properly valued for the purposes of Court-fee and jurisdiction? OPP.
10. Relief.
10. As stated in para 10 of the impugned Judgment, issues Nos. 6 to 9 were not pressed by the learned Counsel appearing on behalf of defendants, as such, no findings were returned on the said issues. The District Judge Instead of giving his findings on issues Nos. 1 to 5 separately, has taken up all these issues together, on the ground that it would result in repetition of evidence. In fact, the District Judge has simply enumerated the oral and documentary evidence adduced by the parties and the relevant provisions of Act No. 18 of 1994 and thereafter referred to the judgment of Supreme Court of India in which Religious and Charitable Endowments Acts of other States have been held constitutional and given his decision. The claim of the plaintiffs that temple Shri Nandlkeshwari Jl is their private property and they are owners in possession of the property attached to the said temple and a part of it was granted to their ancestors as MUAFI in lieu of their rendering POOJA in temple Shri Nandikeshwar Ji and in the alternative that they are tenants under the temple Shri Nandikeshwar Ji and, therefore, their tenancy rights cannot be taken away without adopting the proper procedure prescribed under law and also that their residential houses are located on a part of it, has been rejected without referring to evidence on these points which were formulated in issues Nos. 1 to 5 and reasons for its acceptance or rejection. The only evidence referred to is the Jamabandi for the year 1991-92, Ext. P. 10, wherein temple Shri Nandikeshwar Ji is recorded as owner and plaintiffs Nos. 1 to 4 as MOHATMIMS. The challenge of the plaintiffs to the notification dated 24-2-1994 and the action taken by defendants Nos. 1 and 2 under the Act No. 18 of 1994 has also been dismissed by merely stating that keeping in view the scheme of Act No. 18 of 1994, taking over of temple Shri Nandikeshwar Ji by the impugned notification was in the interest of the worshippers and for the better management of the property attached thereto. The stand of the defendants that temple Chamunda-Nandikeshwar Ji is one complex and includes the temple of Chamunda Devi and Nandikeshwar, which cannot be separated, has also been accepted without giving reasons by referring to the evidence produced by the parties.
11. After hearing learned Counsel for the parties and going through the record, we find that the Impugned judgment does not stand the judicial scrutiny as it is completely in violation of the provisions of Order 20, Rule 5 and Order 14. Rule 2, Code of Civil Procedure. The purport of these provisions is that the trial Court after framing issues is supposed to give its finding or decision, with reason upon each separate issue, unless the finding upon any one or more of the Issues is sufficient for the decision of the suit or the Court is of the opinion that the case or any part thereof may be disposed of on an issue of law, it may try that issue first if that issue relates to the jurisdiction of the Court or a bar to the suit created by any law for the time being in force and postpone the settlement of other Issues until after that Issue has been determined.
12. In the present case, trial Court has framed all the issues and was supposed to give separate findings on each issue, as admittedly the findings upon any one or more of them are not sufficient for the decision of the suit. By simply enumerating the evidence and law and thereafter giving conclusion whereby the case of one party is accepted and the other party is rejected, is no judgment in the eyes of law. In other words, the judgment which does not contain the reasons or grounds on the basis of which the Judge has come to his conclusion/decision for passing a Judgment and decree on the points in issue or controversy, is vitiated. It is all the more necessary, when the judgment is by the Court of fact and is appealable, to avoid unnecessary delay and protracted litigation. The Supreme Court in Fomento Resorts and Hotels Ltd. v. Gustavo Ranato da Cruz Pinto, AIR 1985 SC 736, has held in paragraph 27 as under :
"In a matter of this nature where several contentions factual and legal are urged and when there is a scope of an appeal from the decision of the Court, it is desirable as was observed by the Privy Council long time ago to avoid delay and protraction of litigation that the Court should, when dealing with any matter dispose of all the points and not merely rest its decision on one single point."
(Also see Ram Ranbijaya Prasad Singh v. Sukar Ahir, AIR 1947 Pat 334 (SB); Ambor Ali v. Nichar Ali, AIR 1950 Assam 79; Ahmed All v. Shaik Ahmed, AIR 1955 Hyderabad 268 and Swaminathan Ambalam v. P.K., Nagaraja Piliai. AIR 1973 Madras 110). There-' fore, by not deciding issues Nos. J to 5 separately by referring to material evidence on each issue for and against the parties and giving reasons for its acceptance or rejection, the impugned judgment is vitiated.
13. The learned Counsel for the defendants have impressed upon us that we may examine the conclusion arrived at by the District Judge by referring to the evidence on record and give findings on each issue in our capacity as first appellate Court, as we are dealing with Regular First Appeal. We are unable to accept this submission as it will not be just and fair and it will deprive the losing party of a right to appeal before this Court.
14. In these circumstances, we have no alternative but to accept this appeal and set aside the impugned decree and judgment and remand this case to the trial Court with direction to restore it to its original number and decide it in accordance with law by giving its findings on issues Nos. 1 to 5 separately. No order as to costs.