Delhi District Court
Shri Vinod Bhardwaj vs Shri Mahant Surender Nath on 12 February, 2016
IN THE COURT OF CIVIL JUDGE, SOUTH EAST DISTRICT,
SAKET COURTS COMPLEX, SAKET, NEW DELHI
Presiding Officer: Prabh Deep Kaur, DJS
Suit No.277/2013
Unique ID no. 02406C0062952011
In the matter of:
1. Shri Vinod Bhardwaj
S/o Sh. Hari Chand Bhardwaj,
R/o 534, Chiragh Delhi, New Delhi
2. Shri Krishan Chand Sharma
S/o Sh. Nityanand Sharma,
R/o 677, Chiragh Delhi, New Delhi ..........Plaintiffs.
vs
Shri Mahant Surender Nath
presently acting as Chela of Mahant Ram Nath
Tika Hazari, Bhairo Mandir,
Bhargava Lane, Subzimandi, Delhi .........Defendant.
Date of institution of suit : 18.03.2011
Date on which order was reserved : 08.02.2016
Date of pronouncement of the order : 12.02.2016
SUIT FOR DECLARATION, PERMANENT AND
MANDATORY INJUNCTION
JUDGMENT
1. Vide this judgment, the present suit has been disposed off. CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 1 of 31
2. Plaintiff's Averments: 2.1. There is a temple popularly known as Mandir Shree Kalkaji situated in Mauza Bahpur, New Delhi which is situated in an area of 356 bighas 8 biswas including the land which is used for installing small stalls at the time of melas. The said temple was got constructed by one Raja Kidar Nath. The temple measuring 356 bighas 8 biswas was jointly owned by the pujaris of the temple consisting of brahmins and jogis in the ration of 3:1 respectively. Similarly, the baris of the Mandir Shree Kalkaji are also distributed amongst the brahmins and jogis in the same ratio. The land of Shree Mandir Kalkaji cannot be sold, transferred or alienated by any of the pujaris in favour of any other persons. The said restrictions were put up on pujaris of the Mandir Shree Kalkaji long back and the first such restriction known to the pujaris was put in the year 1825 by executing a document known as Shariyat Vajibul Urg and same has been relied upon the judgment dated 10.05.1877 passed by Pt. Bhaskar Rao, Extra Asstt. Commissioner, Delhi in suit no.85 instituted on 12.03.1877. 2.2. Thereafter, the said document of the year 1825 was relied upon by the Ld. Court David FazaludDin Addl. Sub Judge, Delhi in suit no.430/198 of 1931/35 titled as Smt. Dharam Kaur vs Sandhia Nath Chela Misri Nath decided on 20.03.1936. Thereafter, the rights of the pujari were discussed in a case titled as Sh. Tula Ram vs CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 2 of 31 Mahant Prithvi Nath decided by Sh. Gian Chand Jain, the then Sub Judge 1st Class, Delhi. It was held in the said judgment that pujaris of the Mandir Shree Kalkaji could utilize the income of the temple and tehbazari for their own purpose while land attached with the Mandir was to be utilized for the benefit of the deity only and no pujari could be allowed to use the land attached to the temple for his personal benefit in any manner.
2.3. In spite of said judgment and decree dated 28.12.1955 Sh. Prithvi Nath allegedly executed a sale deed in favour of Sh. Chet Ram Sharma which is no value at all in the eyes of law. Predecessor in the interest of defendant has sold the land illegally as per the revenue records and he lost all his rights to perform puja sewa and to receive tehbazari from the Mandir Shree Kalakji and the land attached to this temple. As such the defendant has succeeded to no right, title or interest to collect the tehbazari and to perform puja sewa in the Mandir. The plaintiffs have come to know that Sh. Prithvi Nath had illegally sold 123 bighas 15 biswas of land to various persons including Sh. Chet Ram and other associates. Sh. Prithvi Nath also received the compensation from the L.A.C. For the land acquired vide award no.2059 in respect of land measuring about 31 bighas. 2.4. The defendant has recently in October 1999 sold 22 bighas of land belonging to Mandir Shree Kalkaji. The said fact has CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 3 of 31 been mentioned in the judgment dated 12.12.2007. Thereafter, an appeal was preferred. However, the appeal was dismissed by Division Bench of the Hon'ble High Court on 27.01.2009. In pursuance of the directions of the Hon'ble High Court, PS Economic offences Wing, Distt C & R New Delhi has registered a case vide FIR no.24 dated 07.02.2008 against the defendant. Therefore, the defendant has lost all the interest in the Mandir to receive offerings and puja sewa and to realize tehbazari in the Mandir Shree Kalkaji.
2.5. The plaintiff had filed a suit against some person including the defendant bearing suit no.1322/2006 in the civil Court, Delhi, for declaration and alternative remedy being pursued by the plaintiff in other competent Court and the same has been dismissed on the ground that it was filed in the wrong forum. Hence, the present suit with abovesaid prayer.
3. Defence of defendant: 3.1. The defendant belongs to the sect of sadhus known as Avdhoot Jogis and is Mahant Gaddi Nashin in succession to his guru Mahant Ram Nath Chela Mahnat Prithi Nath since 1992. The rights of the defendant both as regards his share of puja sewa or offerings of Mandir Shri Kalkaji and ownership rights in respect of the share of the Avdhoot Jogis in lands entered in revenue records in the name of thok jogian brahmanan nisf nisf are legally protected and are res judicata. CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 4 of 31 This is the second time that the plaintiffs have come out with a cock and bull story against the defendant after having got the previous suit dismissed.
3.2. The right of the Avdhoot Jogis in succession to guru to chela or gurbhai stands established by the apex Court in case entitled Mahant Prithi Nath vs Birkha Nath reported as AIR no.1956 SC102. Similary, the right to bari to run in performing puja sewa and the right to obtain offerings in Mandir Shree Kalkaji on the basis of four anna for jogis and twelve annas for the brahmins share stands established in a representative suit under Order 1 Rule 8 CPC entitled Mahant Prithi Nath vs Tula and Ors. civil suit no.69/1961. All appeals from the said decree and judgment by the Brahmin priests of all four thulas and gharbari jogis having failed the said decree is final and binding on all priests of Mandir Shri Kalkaji and cannot be challenged in any proceedings as initiated by the plaintiff or other pujaris from time to time.
3.3. Mandir Shri Kalkaji near Nehru Place New Delhi constructed on a plot of 17 biswas app. in khasra no.624/2 mauja Bahapur village Tehsil Mehrauli, Delhi. It was initially a private temple being a gaddi or dera or Avdhoot jogis. These endowed lands extended from what is now Nehru place up to Okhla Industrial Area, partI. Most of these lands were acquired under various awards since CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 5 of 31 1954 to 1971. Even now the acquisition process is going on and the DDA and Metro Railways has taken over or even illegally grabbed practically all the remaining lands. In addition, there were lands recorded in the names of five families of Brahmins and Avdhoot jogis in equal shares under the heading of owners as thok jogian brahmanan nisf nist obtained compensation in their own right from the government. Now some portions of khasra number 629, 630 and 632 with its sub divisions admeasuring 45 bighas 10 biswas remained unacquired. Out of these lands the five families of brahmins acting through the late Brij Mohan Bhardwaj sold off share of Brahmins. The defendant as Mahant Gaddinashin being entitled to 22 bighas 15 biswas of these lands had to file suit for possession against the DDA, NACT of Delhi etc. as the defendant discovered that there was encroachments.
3.4. As regards the right to puja sewa and to receive offerings the same is regulated by baris or turns as per sanction of law instead of shares of the parties concerned and court rulings which are final and binding on all. Following incessant disputes on sharing the offerings, the same were converted into baris or turns vide orders of Pandit Bhaskar Rao Assistant Commissioner, Delhi Province in 1877 by virtue of this arrangement, instead of sharing the offerings on daily or monthly basis the four thulas and jogis took monthly turns in CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 6 of 31 performing puja sewa keeping the shares of thok jogian at four annas and the four brahmin thulas e annas each i.e. 12 annas in a rupee. By this arrangement after every two baris of brahmin thulass,one turn would be given to thok jogians.
3.5. The jurisdiction of civil court under Section 9 of the Civil Procedure Code is not to be invoked, where no personal right of the plaintiffs is involved. In the present case, the plaintiffs being outsiders and having no right as such to the gaddi or the position of Mahant gaddinashin of mandir Shri Kalkaji and having no right in the pooja sewa and tehbazari of the thok jogian do not have any locus standi to institute the present suit against the defendant. The plaintiff have failed to disclose as to under which provision of law / custom would Mahant Prithi Nath deemed to have lost his rights to perform puja sewa or to receive tehbazari.
3.6. The present suit is also barred by limitation. The plaintiff alleged that Mahant Prithi Nath executed sale deed in favour of Jeth Ram Sharma and the said transaction forms the nucleus to file the present suit. The transaction is dated 24.11.1956. It is therefore, clear that the present suit is barred by limitation. Without prejudice to the other submissions, even it it is argued and admitted that the plaintiff initially filed the civil suit before the Court, which did not have jurisdiction in the matter, it is submitted that the said suit was CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 7 of 31 filed in the year 2006. Even if the period of the said suit is excluded for the purpose of calculating the limitation, it is submitted that even then the present suit will be barred by limitation. The relief of injunction as sought by the plaintiff cannot be granted without the said sale deed being declared as a void document or cancelled. There is no such land of 356 bighas or 8 biswas said to be jointly owned by pujaries of the temple consisting of brahmins and jogis in the ratio of 3:1. The endowed lands on which constructions of Dharamshals have been made are inalienable and such dharamshalas are to be constructed with the consent of the Avdhoot Jogis and used only for religious purposes. The plaintiff do not know that Shart Wajib UlArz refers to village customs and not to any agreement between pujaris. The decisions of Pt. Bhasker Rao pertained to the sharing of puja sewa offerings by turns or baris and not by shares and has nothing to do with lands in the vicinity. The plaintiff in 2011 is questioning the transaction which took place in 1956 without even challenging the same or claiming cancellation of document. The allegations of fraud, illegality and the transaction being void ab initio are meaningless so long as the sale deed dated 24.11.1956 exists as the same is a registered document which is deemed to have been executed and registered in accordance with law and the same transfers good title to the transferee. The plaintiffs do not disclose as to which land or lands CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 8 of 31 belonging to Mandir Shri Kalkaji measuring 123 bighas 15 biswas of land were sold by the late Mahant Prithi Nath chela Mahant Pancham Nath. Mahant Prithi Nath died on 18.09.1969. There was no challenge by anyone much less by the plaintiff on any alleged irregularity by Mahant Prithi Nath. Neither the defendant nor his predecessor in interest transfered any land belonging to Mandir Shri kalkaji. The civil suit in question had arisen when it was discovered that the DDA was encroaching on land admeasuring 45 bighas 10 biswas in khasra no. 629, 630 and 633 Mauja Bahpur and in which the defendant was entitled to 22 bighas 10 biswas in his own right. The suit for possession was filed on behalf of the defendant by his brother Satish Kumar as his general attorney. This Satish Kumar was also the attorney of the guru of the defendant. Mahant Ram Nath chela Mahnat Prithi Nath died on 06.04.1992. Behind the back of the defendant Satish Kumar played a fraud. Even before filing the suit for possession against the government he purported to execute five sale deeds in favour of his close relation even without their knowledge. This resulted in extensive litigation and the matter is now pending in the Hon'ble Supreme Court. Plaintiffs have admitted the judgment and decree dated 24.01.2011 as correct and the same has attained finality in that no appeal has been filed by the plaintiffs.
4. Replication: The plaintiff has stated that jogis are having CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 9 of 31 1/4th right in the temple including the land and as such they are entitled to enjoy the baris of the Mandir Shri Kalkaji only for three months in a year. The apex Court has not declared jogis to be entitled to half share in the properties and rights of Mandir Shri Kalkaji in civil suit no. 69/61 decided by the Learned Sh. S. N. Kapoor, Sub judge, 1st class, Delhi as he then was on 01.02.1974 has clearly decided the rights of the brahmins and jogis of Mandir Shree Kalkaji and the jogis have been given only 1/4th rights in Mandir Shree Kalkaji vide the said judgment, while deciding issue no.1 in the said case at page no.21 to 24 of the judgment. The Mandir was renovated by Raja Kedarnath and a vast piece of land was given to the pujaries for their livelihood. However, some land of the Mandir has been acquired by the Govt. while most of the land has been sold by the predecessor of the defendant including the defendant right from Mahant Prithi Nath, Ram Nath and the present Mahant Surender Nath. The total land coming in the records belonging to the Mandir is measured at 356 bigha 8 biswas out of which more than 180 bighas of land has been sold by the three Mahant including the defendant. The sale proceeds have been pocketed by these Mahant from time to time causing irreparable loss to the remaining pujaris of mandir shree kalkaji. None of the pujaries either from brahmin or from jogis as full ownership rights in the Mandir Shree Kalkaji. The baries of pujaries have been settled and CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 10 of 31 whosoever has a bari in Mandir at a time has the right to enjoy the fruits of puja sewa and tehbazari in Mandir Shree Kalkaji and the land belonging to the Mandir for that particular period.
5. On the basis of pleadings, following issues have been framed vide order dated 10.04.2013:
1. Whether the plaintiff is entitled for a decree of permanent injunction as prayed for ?OPP
2. Whether the plaintiff is entitled for a decree of mandatory injunction as prayed for ? OPP
3. Whether the present suit is barred being res judicata ? OPD
4. Whether the plaintiff has no cause of action ? OPD
5. Whether the present suit not maintainable ? OPD
6. Whether the suit is barred by limitation ? OPD
7. Whether the plaintiff has no locus standi to file the present suit ? OPD
8. Whether the defendant has lost his right to perform puja sewa and to receive tehbazari in mandir shri Kalkaji ? OPP
9. Relief.
6. In PE, the plaintiff has examined himself as PW1 to prove his case. PW1 has tendered his evidence by way of affidavit. He has relied copy of the said judgment which is exhibited as Ex.PW1/1.
7. Plaintiff has also examined Sh. Kishan Chand Sharma as PW2 and Sh. Ram Tirath has been examined as PW3. Both the witnesses were cross examined and PE stands closed. CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 11 of 31
8. The defendant has examined himself as DW1 to prove his defence. He has relied upon document which is exhibited as Ex.DW1/1 (colly) to Ex.D1/D2. After cross examination the witness DE stands closed and matter was fixed for final arguments.
9. ISSUEWISE FINDINGS For the sake of convenience, issues no.1, 2 and 8 are decided together.
Issue no.1, 2 and 8: (1) Whether the plaintiff is entitled for a decree of permanent injunction as prayed for ?OPP
2. Whether the plaintiff is entitled for a decree of mandatory injunction as prayed for ? OPP
8. Whether the defendant has lost his right to perform puja sewa and to receive tehbazari in Mandir Shri Kalkaji ? OPP
(a) The onus to prove these issues is upon the plaintiff. It is settled principle that in civil cases, the burden of proof is upon the plaintiff to prove his case and the case of plaintiff has to stand on its legs. The criteria of burden of proof in civil cases is, 'preponderance of probabilities', In other words, Court has to consider out of two parties, whose version appears to be more probable to be true.
(b) In the present case, admittedly, there is one Mandir namely Shree Kalkaji Mandir and some property is attached with the Mandir Shree Kalkaji and is jointly owned by pujaris of temple consisting of brahmanins and jogis. The baris of Mandir Shri Kalkaji are also CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 12 of 31 distributed amongst brahmin and jogis in the ratio of 3:1. Further, in the judgment of Sh. Tula Ram vs Mahant Prithvi Nath dated 28.12.1955 it was held that no pujari of Mandir Shri Kalkaji can utilize the land attached with the Mandir for his personal benefit and land can be utilized only for the benefit of deity.
(c) Now, as per plaintiff, the predecessor in interest of defendant i.e. Sh. Prithvi Nath has illegally sold the property to various persons and he also received compensation and defendant has sold some property of Mandir in October 1999 as admitted by him in Civil suit before Hon'ble High Court of Delhi and therefore, the defendant has lost all his interests in Mandir Shree Kalkaji in all respects including the right to receive offerings and puja sewa and to realize tehbazari in the Mandir Shri Kalkaji. Hence, the present suit to restrain the defendants from acting as Mahant of the Mandir Shree Kalkaji and from performing puja sewa and from receiving tehbazari and to direct defendant to remove his belongings from mandir Shri Kalkaji.
(d) On the other hand, as per defendant, an identical suit was filed of the plaintiffs and two other brahmins and purchaser from Mahant Prithi Nath being suit no.288/10/06 in the Court of Ms. Neha Paliwal Civil Judge at Delhi i.e. exactly on the same grounds claiming the same relief in which identical prayer was made as in the present suit against the defendant. This suit was dismissed by the Court and no CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 13 of 31 appeal was filed there from and the said judgment and decree has become final. The defendant denied that the brahmins pujaris have any ownership rights in any land including the non existent plot of 356 bighas 8 biswas, the Mandir being constructed only on 18 biswas of land and there was no question of any Mandir land being sold by his grand guru Mahant Prithi Nath or by himself or by any other Avdhoot Jogi. Prior to 1877 that is before judgment / judicial order of Pt. Bhaskar Rao, Extra Assistant Commissioner, Delhi province traditionally the puja sewa and income form tehbazari was shared by four thulas of brahmins to the extent of three annas each while the Avdhoot jogis and their sub sect Gharbari jogis had four annas share. But by the said judgment the shares were turned into baries to turns after 1877 whereby after every three turns of brahmin thulas the fourth turn was that of the jogis. There were other lands some of which were owned by Mahant Gaddi Nashin of Avdhoot jogis in their individual names and some were owned by thok jogian brahmanan nisf nisf half ownership right in these lands vested in Mahant Gaddi Nashin of Avdhoot jogis and half ownership vested in five families of Brahmins which may be referrd. Thus, it was submitted that the plaintiff have no concern or connection with any such land as alleged by the or challenge the management thereof by the Mahant Gaddi Nashin. The brahmin pujaris have no concern of any kind with Avdhoot jogis. The CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 14 of 31 law rights, customs and rites relating to Avdhoot or Darshani or Kanphatte jogis have been reaffirmed in the apex Court decision Prithi Nath vs Birkkha Nath AIR 1956 SC 191. In this judgment in favour of the grand guru of the defendant i.e. Mahant Prithi Nath the apex Court held and affirmed that the sadhus of the Avdhoot jogis as per decision of Bhek Bara Panth the apex body of Avdhoot jogis. This body also controls the conduct of the Avdhoot jogis and removes any Mahant Gaddi Nashin of Avdhoot jogis on account of misconduct. The brahmin pujaris have nothing to with regulation of the Avdhoot jogis.
(e) In the present suit, there are two basic contentions of the plaintiff. (i) Sale of property by Sh. Mahant Prithi Nath / Predecessor of defendant (ii) Sale of property by defendant himself. First: The sale of property of mandir Shree kalkaji Mandir by Sh. Mahant Prithi Nath.
(i) As far as this contention is concerned, admittedly plaintiff along with other persons have filed another civil suit i.e. CS no. 288/10/06 Krishan Chand Sharma & Ors. vs Chet Ram Sharma & Ors. in which the defendant was also one of the defendant. The copy of proceedings is Ex.PW1/D2. The said suit was dismissed vide order dated 24.01.2011 on the ground that the suit has been filed in the wrong forum.
(ii) The relevant para of order dated 24.01.2011 is as follows: CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 15 of 31
"Briefly the case of the plaintiff: The land attached to the temple of mandir Shri Kalkaji situated in mauza Bahpur, New Delhi is jointly owned by the pujaris of the temple consisting of Brahmins and jogis in the ratio of 3:1 respectively. The land attached with the temple cannot be sold, transferred or alienated by any of the pujaris and some part of the land was recently acquired by DDA from the total land attached to the mandir vide notification dated 28.11.2002 bearing no.F9(32) /01/L & B/LA/16/63 in respect of khasra no. 621/2/3/2/2/1 min. (216) and 621/2/3/2/2/2 (510) and an award in respect of the said land bearing no.24/DC (S) 20052006 was passed by the Land Acquisition Collector, South Delhi on 06.06.2005. The plaintiff came to know about the passing of the award in August 2005, and thereafter came to know that defendant no.1 to 4 had also filed claims to the said land claiming themselves to be the purchasers of the part of the land in question. On inquiries they came to know that one Mahant had allegedly executed a sale deed in favour of defendant no.1 in respect of some of the land measuring 28 bighas which was attached to Mandir Shree Kalkaji. It is submitted by the plaintiffs that the said sale deed is void abinitio and consequent mutation is also void, as pujaris of the temple have joint ownership over the land and they have no right to sell the land individually to any body. It is submitted that as the sale deed dated 08.11.1956 is void abinitio defendant defendant no.1 to 4 derive no title from it and further as defendant no.5's predecessor in interest had sold the land illegally therefore he has lost all his rights to perform puja sewa and to receive tehbazari from the mandir Shree Kalkaji and the land attached to this temple and thus has succeeded to no right, title or interest. It is further submitted by them that they applied before the Hon'ble High Court of Delhi CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 16 of 31 in a writ petition bearing WP (C) No.4070 to 4073/2006 praying that the compensation should not be paid to defendant no.1 to 4. However, the Hon'ble High Court vide order dated 17.07.2006 asked defendant no.1 to 4 to prove their ownership before the Ld. District Judge, Delhi in the land acquisition matter and the said matter is now pending disposal before the Court of Ld. ADJ, Delhi. Thus, the plaintiff has filed this suit seeking a decree of declaration declaring the sale deed dated 08.11.1956 executed by the Mahant in favour of Sh. Chet Ram Sharma as null and void and a decree of declaration seeking declaration that mutation in the revenue record in favour of defendant no.1 to 4 in respect of the suit land be declared as null and void and further a decree of permanent injunction be passed restraining defendant no.1 to 4 from claiming any amount of compensation or any right, title or interest in the said land and further a decree of permanent injunction is also sought against defendant no.5 to restrain him from acting as the Mahant in Mandir Shree Kalkaji and from performing puja sewa and restraining him from receiving / realizing tehbazari from the area of Mandir Shree Kalkaji Mandir. Issue no.2: Whether civil Court has the jurisdiction to entertain this Court in respect of property, which has been acquired by the government ?
It is argued by the defendants that this Court has not got any jurisdiction to deal with the present case as only the Ld. Reference Court i.e. the Court of Ld. ADJ, Saket has the power to decide this matter. Plaintiff in his plaint has referred to the order of Hon'ble High Court of Delhi in writ petition no.4070 to 4073/2006 whereby they have submitted that the Hon'ble Court had vide order dated 17.07.2006 had directed the Land Acquisition Collector to make a reference in terms of Section 30 and 31 to the reference Court. The Hon'ble High Court vide CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 17 of 31 pronouncing order had given consideration to its own Division Bench judgment of 03.03.2005 passed in writ petition (c) no. 7679/2004 and other connected matters where the Division Bench had given one the directions as under:
"(c) In these three writ petitions, there are rival claims raised by the petitioners in each petition claiming to be the rightful claimant, entitled to receive the compensation. Thus there is dispute with regard to the ownership, bhumidars, persons entitled to receive compensation and its quantum. Therefore, in these circumstances, the Land Acquisition Collector would be at liberty to refer the objection to the Court of Competent Jurisdiction under the provisions of Section 3031 of the Act, unless the Collector is satisfied that there is no dispute between the parties in regard to receipt of the awarded amount."
After referring to the said judgment of the Division Bench, the Hon'ble High Court directed the LAC to refer the matter to the Ld. Reference Court. It is an admitted position of both the parties that the currently dispute is pending in the reference Court which is the Court of ld. ADJ, Saket. Defendant no.1 to 4 have also relied upon the above cited judgment of the Hon'ble High Court dated 03.03.2005 which was referred to by the Hon'ble High Court in its later order dated 17.07.2006 and have submitted that in view of the said judgment as now the matter is pending before the reference Court the disputes regarding ownership, bhumidhari rights and persons entitled to receive compensation and its quantum would be exclusively determined by the Ld. Reference Court.
"Therefore, by necessary implication the jurisdiction of the Civil Courts to decide objections regarding title and quantum of compensation or to restrain any person from receiving compensation is clearly ousted as per section 9 of the CPC. In CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 18 of 31 the present case as the plaintiffs have themselves admitted the order of the Hon'ble High Court in their plaint and have admitted the dispute with regard to the compensation is pending in the Ld. Reference Court therefore, keeping in view the order and judgment of the Hon'ble Delhi High Court dated 17.07.2006 and 03.03.2005, it is clear that even with the respect to the determination of question of title regarding this land this Court have no jurisdiction. This Court cannot pass a decree regarding the validity of the sale deed dated 08.11.1956 as prayed by the plaintiff as that would tantamount to determining to issue of title between the plaintiffs and the defendants, which issue is currently under the jurisdiction of the Ld. Reference Court i.e. the Court of the Ld. ADJ, Saket. Further, this Court also has no jurisdiction to pass decree of permanent injunction to restrain the defendant from claiming any amount of compensation, as per section 41 (a) of the Specific Relief Act and as per fact that under the Land Acquisition Act whether any person is entitled to receive compensation or not, that question is exclusively to be determined by Ld. Reference Court. Therefore, this Court has no jurisdiction to determine this issue as well. With regard to the relief of decree of declaration regarding mutation in the revenue record, as this relief is subsequent to the relief of declaration regarding the sale deed and further as it with respect to the record of rights and as Section 158 of the Punjab Land Revenue Act categorically bars the jurisdiction of the Civil Courts in doing so, this Court has no jurisdiction to pass a decree to the plaintiff regarding that fact also. With regard to the relief of permanent injunction vis a vis the defendant no.5 this relief cannot be entertained by this Court at this stage as the relief is claimed by the plaintiff on the ground that the sale deed was illegally executed by the CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 19 of 31 predecessor in interest of defendant no.5. As the question whether the sale deed was void or valid is to be decided by the Ld. Reference Court, this issue cannot be decided by this Court at this stage, as it is already held that this Court has got no jurisdiction to decide whether the impugned sale deed is void or valid. Therefore, the Court cannot decide on the relief of permanent injunction against the defendant no.5 as well. In view of the observations and discussions held above it is hereby held that this Court has got no jurisdiction to entertain this suit in respect of the property which has been acquired by the Government as it is the Ld. Reference Court i.e. the Court of Ld. ADJ, Saket which has the jurisdiction to decide the issue of title, ownership and quantum of compensation between the parties. Thus, as this Court has no jurisdiction to determine the present suit therefore this suit is hereby dismissed having been filed in the wrong forum".
(iii) Clearly, the plaintiff (who was plaintiff no.2 in the earlier suit mentioned above) has taken the same plea against the defendant that Mahant Prithi Nath i.e predecessor in interest of defendant had sold the property illegally and therefore defendant, (who was defendant no.5 in the earlier suit) should be restrained from acting as Mahant in the Mandir Shree Kalkaji and from performing puja sewa and restraining him from receiving tehbazari from the area of Mandir of Shri Kalkaji. Regarding the same contention, the Court vide order dated 24.01.2011 had already held that Civil Court cannot pass decree regarding validity of sale deed dated 08.11.956 (the alleged sale deed executed by Mahant Sh. Prithi Nath / predecessor in interest of CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 20 of 31 defendant) as only Ld. Reference Court i.e. the Court of Ld. ADJ, Saket where the dispute as to compensation is pending, is only the competent Court to decide the same. The said order had not been challenged and therefore by virtue of time, it has attained finality and therefore the finding as to the jurisdiction of this Court to decide the validity of alleged sale deed executed by Mahant Sh. Prithi Nath, shall operate as a res judicata and it is not open to the plaintiff to reopen the same contention and plaintiff is barred by principles of res judicate to take the same contention regarding sale of property of Mandir Shri Kalkaji by Mahant Shri Prithi Nath.
Second: The sale of property by defendant in October 1999.
(i) Now, plaintiff has taken plea that because defendant has sold the property of Mandir Shri Kalkaji in violation of legal provisions /customs the defendant should be restrained from acting as Mahant of Mandir Shri Kalkaji and from receiving tehbazari and for performing puja sewa. The plaintiff has relied upon judgment / order of Hon'ble High Court of Delhi dated 27.01.2009 (Ex.DW1/P1). As per plaintiff, defendant has admitted in these proceedings that he has sold the property of Mandir Shree Kalkaji and therefore defendant should be debarred from taking part in proceedings of Mandir Shree Kalkaji.
(ii) The relevant para of the judgment is as follows: CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 21 of 31
"To recapitulate in brief, in the suit filed, prayer was to pass a decree of declaration declaring that the plaintiff is the lawful owner of suit property measuring 22 bighas 15 biswas and he also sought a decree of possession directing the DDA to restore the possession of the said property. Other consequential reliefs were also sought. In the plaint, specific averment was made that the cause of action had arisen when in the first week of January 1998 the plaintiff discovered that the DDA was fencing the land and apparently raised boundary wall encompassing the said land an started developing the same into a Green Area by trespassing in the suit property. Suit was filed in the year 2000. However, from the replies of the DDA as well as Land and Building Department of Govt. of NCT of Delhi, it emerged that the land in question was given to DDA way back in the year 1992, part of the land was used as road, there was a pond (water body) and DDA has used the land in question as park. At this stage, the plaintiff's statement was recorded under Order X CPC when he admitted that there was a park of DDA over the land as well as Jauhar on the land and there was land between Jauhar and Mandir.
Mr. Satish Kumar also, in his statement, admitted that the land was possessed by the DDA and there was a park and road apar from Jauhar on the road. He started that demarcation had been carried out in the year 1989 and park and the road were already in existence in 1986. He also conceded that from 1986 to the year 2000, no steps were taken to seek possession of the land. More shocking fact which was revealed by him in his statement was that even in respect of such land, which was park, road and Jauhar on the road, he was selling that land by executing CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 22 of 31 sale deeds. Seven sale deeds were executed, which were all in favour of family members. In those sale deed, it was mentioned that possession was given to the vendees, which fact, on the face of it, was false keeping in view the nature of the land and the manner in which it was used and no possession of said land, which was with DDA, was ever given by the vendor to the vendees, nor could it be given. From this, not only it emerges that the appellants had made contradictory averments in the plaint and in their statements recorded under Order X those were false as well. When the appellants stood exposed and the learned Single Judge was deeming it proper to have deeper scrutiny of the matter, application was filed for withdrawal of the suit under the pretext that the suit, as filed, was not properly framed. We are, therefore, of the opinion that it prima facie appears that not only false statements, on oath are given by the appellant, the suit was filed with the false averments, which was made deliberately. Furthermore, if the land in question which is in possession of the DDA for the last number of years (at least since 1982, as per the DDA) the sale of this land in the manner done by the appellants would be serious matter.
"The attorney of the plaintiff who is the natural born brother, was the attorney even of the earlier Mahant. The complete nature and status of the property was thus not only know to the plaintiff but even to the attorney. In the statements recorded of the plaintiff and attorney under Order 10 CPC it has clearly come to light that the plaintiff and the attorney were fully aware of the fact that the land in question had a road, jauhar and a part while the case presented in the plaint was as if recently an CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 23 of 31 endeavour in 1998 had been made by the DDA to fence the park. The statements of these parties also show that even prior to 1986 all these things already existed on the land and thus, the introduction of the date of 1998 was made only to bring the suit within the ambit of limitation by stating that the period of limitation was 12 years and should be counted from 1998. The plaintiff and the attorney had, at least knowledge of the status of the defendant authorities and their possession in the land from 1986 onwards, if not earlier.
"The documents of sale have been executed on 26.10.1999 by the attorney. There is not a whisper of this fact in the suit. In fact, the suit would not have been entertained in such a case where rightly or wrongly the land had been sold. The affidavit in support of the application for interim relief has been affirmed on 16.11.1999 though the application and the plaint have been verified on 25.02.2000. The attorney has, thus, come with uncleaned hands giving misdisclosures and false statement in the plaint. Not only that, the attorney has executed sale deeds claiming to have possession of the land and further claiming to transfer the possession of the vendees who were his brother, sister in law and sister in law's brother. The sale deed are also, thus, replete with incorrect statements being made.
"The plaintiff also cannot be really absolved of the responsibility by merely stating that he was unaware of the execution of the sale deeds. The plaintiff himself had as late as on 07.10.1998 executed an irrevocable GPA in favour of the attorney, his nature brother, for sale of the property and it was in pursuance to the said attorney that the sale deeds have been executed on 26.10.1999.CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 24 of 31
(iii) Clearly, the defendant has filed the suit and during Court proceedings, defendant made some contradictory averments. Now, from perusal of proceedings it is clear that the property in question in that suit / the land in dispute was already acquired by the DDA and DDA was in possession of the property at the time of filing of the abovementioned suit by the defendant and the adverse orders were passed against the defendant and his attorney not on the ground of their admission that they have sold the property of Mandir Shri kalkaji but for making contradictory and apparently false statements and for execution of sale deed of the land which has already been acquired by DDA / Government. Thus, clearly, the plea of plaintiff stands on a different plot as the record reveals that the part of the property which plaintiff claims to be property of Mandir has already been acquired by the Government.
Thus, clearly both the contentions of the plaintiff have not been proved on record.
10. Further, the cross examination of plaintiff is relevant to show that plaintiff has not filed the suit on the basis of personal knowledge.
"I cannot give the khasra number of 356 bigha 8 biswas in which the mandir Shree Kalkaji is situated. I do not have any jamabandi of 356 bigha 8 biswas in which I claimed the mandir is situated. It is correct that the CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 25 of 31 present area of mandir is spread over mandir bhawan property 1718 dharashalas in front, a number of dharamshala in back, a property known as Ram Piyaun and parking. I do not know whether the bhawan / mandir is situtated in khasra no.626 min. I have only heard a mandir is situated 356 bigha and 8 biswas and I do not have any document to prove the same. I heard that the entire Nehru Place, the entire Okhla Industrial PhaseI the road leading from Nehru Place to Okhla Industrial Area PhaseI and the entire area of Lotus Temple were endowed properties. Most of these land were acquired by the Government in 19491968 while some of the land are remaining. I have no knowledge of compensation being awarded and paid for these lands. I do not have any knowledge of the persons who were awarded the compensation. It is not in my knowledge that there is some land tending mutated in the name of thok jogian and brahmanan nisf nisf translated as group of jogi and brahmanan half half. I do not have any knowledge whether there was any land which was exclusively owned by the jogies. It is in my knowledge that the said Mahant Prithi had sold 28 bighas fo land in favour of Chet Ram Sharma in 1956 vide a registered sale deed. I do not have in my possession such such sale deed executed by Mahant Prithi Nath in favour of Chet Ram Sharma. The sale deed has been challenged after it came into my knowledge. I have no knowledge whether 25 bighas of land out of the abovesaod 28 bighas have already been acquired by the government. It is correct that in the matter of award of this land under Section 18, 30 and 31 of the Land Acquisition Act are pending in the acquisition Court. I have no knowledge of Brij Mohan Bhardwaj PW3 was CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 26 of 31 attorney of five family of brahmanans owing land of thok jogian and brahmnan nisf nisf. I have no knowledge whether Brij Mohan Bhardwaj as attorney had sold 22 bighas 15 biswas of land in khasra no.629, 630 and 633 min by registered sale deed. Whatever land has been sold by whatsoever is in violation of rules of law.
Thus, clearly, the plaintiff is unable to give any details regarding the sale averred by the plaintiff in plaint and from cross examination it appears that he has filed suit on the basis of hearsay allegations only.
11. In view of the above discussion, it is clear that plaintiff has failed to prove his averments and therefore these issues are decided in favour of defendant against the plaintiff.
12. Issue no.3 to 7: (3) Whether the present suit is barred being res judicata ? OPD
4. Whether the plaintiff has no cause of action ? OPD
5. Whether the present suit not maintainable ? OPD
6. Whether the suit is barred by limitation ? OPD
7. Whether the plaintiff has no locus standi to file the present suit ? OPD The onus to prove these issues is upon the defendants. These issues are taken together as they require common discussion.
(i) It has been argued by defendant that Brahmin pujaris do not have any right in the lands much less as claimed by the plaintiffs as having equal ownership rights. There is no record to that effect. The lands in which the defendant is interested either belong to Mahant CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 27 of 31 Gaddi Nashin of Avdhoot jogis individually or in favour of thok jogian brahmanan nisf nisf, Avdhoot jogis and five families of have half share each in such lands. The other pujaris of Mandir Shree Kalkaji have no concern or connection and never had any right in these lands and they cannot agitate any dispute regarding the same against the defendant in the present format. Apart from the fact that no such suit claim can be justiciable under Section 9 CPC the earlier suit makes the present suit claim not only res judicata but also time barred. It is time barred because the suit is being filed more than 50 years after the sale by Mahant Prithvi Nath. Even if the claim is that the plaintiffs came to know of the sale 50 years ago only in 2006 then also the present suit is beyond the period of three years. Further, the earlier suit claim bars a fresh suit on the same cause of action under Order 2 Rule 2 CPC.
(ii) In the third instance, when the plaintiffs have no locus standi in any such land they cannot come before this Court much less to claim that defendant who has judicially sanctioned rights to perform puja sewa be barred for performing his duties. As regards the allegation that the defendant sold away land in khasra no.629, 630 and 633, the same is absolutely false as is evident from the revenue record. It is not the defendant who sole anany land. It is the brahmin pujaris who have done some. The defendant wanted to reclaim his land from the Government and DDA and which was in possession of DDA. He CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 28 of 31 could not and has not sold any such undivided half rights, apart from the fact that the five families of brahmin pujaris had sold their half share as documented by the sale deed duly exhibited, it is the case of the defendant that in actual fact he had filed a suit for possession of his share of 22 bigha 15 biswas. However, unknown to him, his attorney has acted illegally and mindlessly and even before filing the suit under his signature had purported to execute sale deeds in respect of all these lands which were not authorized or recognized by the defendant. The bogus sale deeds have been taken custody by the High Court and it is ordered that they will have no validity. All matters pertaining to the suit no.459/2000 in the High Court are also now pending in the Supreme Court where SLP stands admitted. The suit claim therefore is non est and in addition it is either resjudicata or the principles thereof or it is barred under Order 2 Rule 2 CPC. The plaintiffs clearly have no cause of action against the defendant as there is no violation of their rights and none has been averred. In fact the suit itself is not maintainable. The bar of limitation is clear. They filed the earlier suit in 2006 which was dismissed. The present suit was filed more than three years of having come to know of the sale in 1956 as detailed in the previous suit itself. Further, the suit is not maintainable per se for injunctions much less on the basis of averments made in the plaint. The plaintiffs have come out with a cock and bull story with ulterior CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 29 of 31 motives to disturb the right of defendant or grab the same in the matter of puja sewa. The plaintiffs are fully aware of the suit being non est and certainly not maintainable sought to create confusion and delay the disposal attempting to insert an amendment seeking relief of declaration even when the arguments were about to conclude. Abuse of the process of law is writ large in the suit claim and it is fact case in which not only the suit is dismissed but contempt of Court proceedings are also initiated against the plaintiff.
(iii) On the other hand, plaintiff has stated that allegations of defendant are wrong and the suit is not barred by principle of res judicate and the previous case was not decided on merits. Further, as far as cause of action is concerned, the defendant has admitted the sale deed of the property of Mandir in the case before Hon'ble High Court of Delhi (Ex.DW1/P1), therefore, plaintiff has a cause of action against the defendant. Further, the suit is maintainable in its present form and there is a judgment that even a worshiper can file the suit. Plaintiff has relied upon the judgment of Allahabad High Court in K. C. Agarwal & G. B. Singh vs Laxminathji Maharaj & Etc. AIR 1985 Allahabad 228. It has been further argued that the period of limitation starts from date of knowledge and as soon as the plaintiff came to know about the execution of sale deed, the plaintiff has filed the suit and suit is within the jurisdiction of this Court.
CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 30 of 31
(iv) The facts and evidence of the case have already been discussed during findings upon issues no.1, 2 and 8. Without repeating the discussion, issue no.3, 4, 5, 6 and 7 are decided in favour of defendant against the plaintiff.
13. As all the issues have been decided in favour of the defendant against the plaintiff, suit of the plaintiff is liable to be dismissed as plaintiff has failed to prove his averments. Therefore, suit of the plaintiff is dismissed being devoid of merits.
14. Decree sheet be prepared accordingly. File be consigned to record room after due compliance.
Pronounced in the open Court (Prabh Deep Kaur)
on this 12th day of February 2015 Civil Judge, South East
Saket Courts, New Delhi
CS No.277/2013 Vinod Bhardwaj & Anr. vs Mahant Surender Nath Page 31 of 31