Himachal Pradesh High Court
Between: vs Cochin Devaswom Board on 3 September, 2021
Author: Sureshwar Thakur
Bench: Sureshwar Thakur
.
Reportable
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
ON THE 3rd DAY OF SEPTEMBER, 2021
BEFORE
HON'BLE MR. JUSTICE SURESHWAR THAKUR
REGULAR SECOND APPEAL No. 129 of 1997
Between:
GHANSHYAM DASS DECEASED THROUGH LRS:
1 (a) (i) NIRMALA DEVI,
WIFE OF LATE SH. GHANSHYAM DASS,
1 (a) (ii) GURDARSHAN SINGH S/O LAGE GHANSHYAM
DASS,
1 (a) (iii) KULDEEP SINGH, S/O LAGE GHANSHYAM DASS,
1(a) (iv) YASHWANT SINGH, S/O LAGE GHANSHYAM DASS,
ALL RESIDENT OF VILLAGE SAULAR,
TEHSIL BANJAR, DISTT. KULLU,
175123
1 (a) (v) MAHESHWARI D/O S/O LAGE GHANSHYAM DASS,
W/O VINOD KUMAR,
R/O VILL. ANI, TEHSIL ANI,
DISTT. KULLU, H.P.
1 b) SH. YAGYA CHAND,
SON OF LATE SH. UTTAM SINGH,
R/O VILLAGE AND POST OFFICE, BHUNTAR,
PHATI SHILIHAR, KOTHI KOTKANDI,
TEHSIL AND DISTT. KULLU,
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-2-
HIMACHAL PRADESH.
....APPELLANTS
.
(BY R.L. SOOD, SR. ADVOCATE WITH MR. ARJUN LALL,
ADVOCATE)
AND
2. a) KULWANT SINGH,
S/O LATE SH. HARBANS SINGH,
R/O PARLA BHUNTER,
DISTRICT KULLU, H.P.
c) AVATAR SINGH,
S/O LATE SH. HARBANS SINGH,
R/O PARLA BHUNTER, DISTRICT,
KULLU, H.P.
2. a) PREM SINGH,
S/O LATE SH. KEWAL RAM,
R/O SHOP KIPER CHOWKI,
P.O. AND SUB TEHSIL VALI CHOWKI,
DISTT. MANDI, H.P.
c) BALBIR SINGH,
S/O SH. KEWAL RAM,
R/O VILLAGE NAGVAIR,
P.O. CHECHAR, TEHSIL BANJAR,
DISTT. KULLU, H.P.
c) LUDAR SINGH,
S/O LATE SH. KEWAL RAM,
R/O VILLAGE SADHUKHOLA,
P.O. CHECHAR, TEHSIL BANJAR,
DISTT. KULLU, H.P.
d) TILAK RAJ,
S/O SH. KEWAL RAM,
R/O VILLAGE SADHUKHOLA,
P.O. CHECHAR,
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TEHSIL BANJAR, DISTT. KULLU,
H.P.
.
3. a) SH. KESHAV RAM,
S/O SH. DHARAM DASS,
VILLAGE DALI, PO PANJAI,
DISTRICT MANDI, H.P.
3 b) SMT. SMT. TIKMU DEVI,
W/O SH. DORA SINGH,
R/O VILLAGE MALARI,
PO PANJAI, DISTRICT MANDI, H.P.
3 c) SMT. DALU DEVI,
W/O SH. SARVDYAL SINGH,
VILLAGE CHHAMAN,
PO BHARAYAN,
DISTRICT KULLU, H.P.
4. SARDAR SANTOKH SINGH TANEJA,
S/O S. ARJUN SINGH,
CHAIRMAN COMMITTEE,
GURUDWARAGRANTH SAHIB BHUNTER,
DISTT. KULLU, H.P.
5. JOGINDER SINGH MAJAHAN,
S/O S. NAND SINGH, VICE CHAIRMAN,
6. JOGINDER SINGH PASRICHA,
S/O BADR SINGH, SECRETARY,
7. MANJEET SINGH CHAWLA,
S/O S. SOHAN SINGH CASHIER.
8. TEJA SINGH, SON OF BHAGAT SINGH,
MEMBER.
9. SARDAR JAGDISH CHAND,
S/O BHAJNEEK SINGH, MEMBER.
10. S. LAKHBIR SINGH,
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S/O S. SHOAN SINGH,
.
ALL MEMBERS OF THE AFORESAID COMMITTEE,
GURUDWARA GRANCH SAHIB,
BHUNTER, DISTT. KULLU, H.P.
....RESPONDENTS
(BY SH. J.S. BHOGAL, SR. ADVOCATE WITH MR. T.S.
BHOGAL, FOR R4, MR BHUPENDER GUPTA, SR.
ADVOCATE WITH MR. JANESH GUPTA, ADVOCATE FOR
R5 TO 10)
Reserved on:10.08.2021
Delivered on: 3rd September, 2021.
This RSA coming on for hearing this day, the Court
passed the following:
JUDGMENT
The plaintiff, instituted Civil Suit No. 216 of 1989, before the learned Senior Sub Judge, Lahaul & Spiti, who was then exercising the powers of Sub Judge 1 st Class, Kullu, H.P., and, in the afore civil suit, the plaintiff had espoused for the grant, of the hereinafter extracted decree, against the contesting defendants: "It is therefore prayed that a decree for declaration to the effect that defendant No.1 is not legally appointed Kardar or Bahtamam of Guru Granth Sahib Bhunter and the transfers of the property of Guru Granth Sahib by Shri Uttam Singh defendant ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -5- No.1 in favour of defendants No. 2 and 3 and other if any is void, and inoperative and are also not .
legal and for the interest and legal necessity of Guru Granth Sahib and as a consequential relief the defendants be restrained from raising any sort of construction over the suit land i.e. khasra No. 511/920939 in any manner through a decree for permanent prohibitory injunction and in case the defendants succeed in raising construction during the pendency of the suit then a decree for possession after demolition of the structure raised thereon by the defendants with costs of the suit be passed in favour of the plaintiff and against the defendants in the interest of justice".
The learned trial Court through a verdict, made thereons, on 18.6.1993, dismissed the plaintiff's suit. The reason for its dismissing the plaintiff's suit, became comprised in the factum, of one Maghi executing a valid Will in favour of defendant No.1, wherethrough, she appointed him as Kardar of the suit property. Moreover, the further reason which prevailed, upon, the learned trial Court, to make a verdict of dismissal upon the suit (supra), became comprised in the factum, that the disputed purported Gurudwara rather not ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -6- carrying any of the imperative elements, for its being .
construable, as a Gurudwara, inasmuch as, there being no Granthi nor any Pathi therein(s), besides in the purported Gurudwara no langar(s) being organized, nor there being thereins or in the premises of the said Gurudwara, the imperative Nishan Sahib. Consequently, the learned trial Judge concluded, that the suit property, since its inception, though became purchased by one Ishwar Singh, in the name of Guru Granth Sahib, however, for lack of the afore elements rather significatory, of the sacred book, if kept inside the Gurudawara rather being open to the public, to hence make collective worship thereto. Therefore, the holy Guru Granth Sahib, though in whose name the suit property is reflected in the revenue record, as owner thereof, yet, with the elements supra of public worship thereof, for the reasons supra, being amiss, thereupon, the "holy book" being construable to be kept only for the personal worship of the afore Ishwar Singh, and, thereafter for the personal worship of his surviving spouse(s), and, or for the successively validly appointed Kardars.
::: Downloaded on - 31/01/2022 23:00:31 :::CIS -7-2. As aforestated, since the Will of Maghi became .
declared by the learned trial Judge, to be a validly executed testamentary disposition, and, also when defendant No.1 was construed to be a legatee or Kardar, of the suit property, hence the learned trial Judge concluded, that the contesting defendant No.1 alone, rather holds the right to ensure the protection of the property owned by Shri Guru Granth Sahib, and, also holds an exclusive right to perform personal worship, of, the "sacred book".
3. The aggrieved plaintiff instituted, against the afore verdict of dismissal, of, civil suit (supra), a Civil Appeal thereagainst before the learned Additional District Judge, Kullu, District Kullu, H.P., and, the learned first appellate Court, through its verdict, made on 6.6.1997,upon, Civil Appeal No. 43 of 1993, allowed the plaintiff's appeal, and, decreed the plaintiff's suit rather in the hereinafter extracted manner: "In view of my findings on point No.1, above, the present appeal succeeds and the same is accepted. The judgment and decree passed by the learned trial court are set aside and quashed. The suit of the plaintiff for the relief sought in the plaint is decreed ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -8- without there being any cost. Let decree sheet be prepared accordingly. File of the trial court be sent .
back with a copy of this judgment, whereafter the appeal file be consigned to record room after due completion".
4. The defendants became aggrieved from the verdict (supra), as made, by the learned first appellate Court, and, appeal before this Court.
r to hence are led to constitute thereagainst, the instant second
5. The instant second appeal, upon, coming up before this Court, on 30.6.1997, it became admitted, on the hereinafter extracted substantial questions of law:
1. That whether in the circumstances of the case the judgment and decree of Addl. Distt. Judge Kullu is liable to be set aside and that of the Senior sub Judge to be restored.
2. That whether the appellate court has mis read and misinterpreted the evidence and documents on record particularly Ex, Dx, Ex D2, to D6 and ADW1/A.
3. That whether the lower appellate court has misconjecture the document on record.
::: Downloaded on - 31/01/2022 23:00:31 :::CIS -9-4. Whether the judgment and decree of lower appellate court is based on extraneous .
consideration not on record, unnecessary and vague repetition which are not even in the proceedings.
Moreover, through an affirmative order, made on 28.8.2017, upon, CMP No. 3963 of 2017, this Court had also formulated, the embodied therein(s), the hereinafter extracted substantial questions of law,:
1. Whether the property in question was ever dedicated to establish a Sikh Gurdwara for public worship, if so its effect?
2. Whether the Guru Granth Sahib, was placed in the property for private worship as opposed to public worship?
3. Whether the alleged Gurdwara in question, fulfilled the mandatory criteria to be declared/treated as a Gurdwara for Public Worship confirming to the mandatory requirements of The Sikh Gurdwaras Act, 1925?
4. Whether the mandatory provisions prescribed under the various provisions of The Sikh Gurdwaras Act, 1925 were followed in the ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -10- present case, warranting the property to be declared as a Sikh Gurdwara for public .
worship?
5. Whether the mandatory provisions of Section 38 of the Sikh Gurdwaras Act, 1925 have been followed in the present case?
6. Whether both the Courts below lacked inherent jurisdiction in the matter?
7. Whether the will of late Smt. Magi was not r proved and whether in the absence of the challenge to the same the Ld. Lower Appellate Court could upset the positive findings recorded by the Ld. Trial Court holding that the will was proved and that Uttam Singh was the beneficiary thereof?
8. Whether the correctness of the appointment of Uttam Singh as Kardar of the Guru Granth Sahib Bhunter, could not have been gone into by the Ld. Lower Appellate court, as the same was Resjudicata between the parties?
9. Whether the suit of the plaintiff was in any case barred by limitation, which factor has been ignored by the Ld. Lower Appellate Court?
::: Downloaded on - 31/01/2022 23:00:31 :::CIS -11-6. The plaintiff had averred, that they are worshipers .
of Shri Guru Granth Sahib, Bhunter, and, in the afore capacity, they became purveyed an apt leverage, to ensure the preservation of the suit property, as, occurs, in the revenue record, to be owned by Shri Guru Granth Sahib. Moreover, the plaintiff(s) also averred in the suit, that previously one Sardar Santokh Singh, used to manage the affairs of the suit property or Gurudwara. However, the afore Sardar Santokh Singh, left District Kullu, during the riots of 1984, and, thereafter no other Kardar became lawfully appointed, visa vis, the afore stated Gurudwara, and, defendant No.1 Uttam Singh, after the departure of Santokh Singh, started claiming himself to be a Kardar of the above stated Shri Guru Granth Sahib. Moreover, it is averred, that defendant No.1 never became appointed as Kardar of Guru Granth Sahib, hence by any lawful authority. The defendant No.1 in the afore purported capacity of Kardar of Shri Guru Granth Sahib, Bhunter, rather in connivance with the revenue officials, and, in the absence of Sardar Santokh Singh, leased out some portion of the suit property, to defendants No. 2 and 3. The ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -12- request as made by the plaintiff to defendants No. 2 and 3, not .
to interfere in the apposite possession of Guru Granth Sahib, over the afore suit property, upon remaining unheeded, led the plaintiff(s) to institute civil suit supra, claiming therein the afore extracted reliefs.
7. The contesting defendant No.1, instituted a written statement to the plaint, and, contended therein, that he was the lawfully appointed Kardar of Guru Granth Sahib.
r The afore claim, as made by codefendant No.1, became rested upon an order made, on 30.3.1990, by the Commissioner Mandi Division, upon, appeal No. 88 of 1988. However, the resting of any claim by codefendant No. 1, upon, the afore drawn verdict, is a feeble endeavour hence for his staking any valid claim, with respect to his being, the, lawfully appointed Kardar of Guru Granth Sahib. The reason(s) being that, though the Commissioner Mandi Division, did not interfere, with the order of remand, as, made by the Collector, to the revenue officer concerned, to after verification of the factum of possession of the contesting claimants, and, after deciding the controversy with respect to the contesting litigants' claim, for ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -13- Kardarship of the afore Guru Granth Sahib. However, since .
the learned Commissioner also in his order of 30.3.1990, pronounced that the verdict of the civil court, of, competent jurisdiction, would predominate the verdict drawn by the revenue officer concerned. Therefore, as stated supra, the verdict, if any, as made with respect to any of the contesting litigants, being the lawfully appointed Kardar(s) of Guru Granth Sahib, is inconsequential, as, any conclusve decision in respect thereof, can be validly made, only by the Civil Court concerned, which decision for reasons drawn hereinafter, rather cannot be made even in the extantly drawn proceedings.
8. Moreover, defendant No.1 has also rested his claim for his becoming appointed, the lawful Kardar of Guru Granth Sahib, on anvil of Will, borne in Ext. AW4/A, hence becoming validly executed by one Magi, and wherethrough, he became constituted, as the legatee of the suit property or as Kardar of Guru Granth Sahib. Though as aforestated, the learned trial Judge has upheld the validity of Ext. AW4/A. However, the learned first appellate court, contrarily pronounced that, the ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -14- exhibit supra became not proven to be validly executed, by .
one Magi. In other words, he concluded that the mandatory provisions, as cast in Section 63 of the Indian Succession Act, hence enjoining valid proof of the Will (supra) rather only through one of the marginal witness thereto, upon, his stepping into witness box, hence proving (a) that the deceased testatrix concerned, in his presence, signing or affixing her mark(s) on the Will, (b) and, his likewise making r his impression(s) or signatures thereon, in the presence of the deceased testatrix, rather evidently becoming completely breached. Reiteratedly, and, preeminently rather for want of the attesting witness concerned, hence stepping into the witness box, and, his making the afore statutory testifications, the afore inference became drawn. Since the afore made reason by the learned First Appellate Court, in its hence declaring Ext. AW4/A, to be invalid, also becomes construed by this Court, to be completely valid. Therefore, the dependence, if any, as made thereon(s) by codefendant No.1, qua his therethrough, being the lawfully appointed Kardar of Guru Granth Sahib, also cannot obviously become accepted ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -15- by this Court. Moreover, the further reason to dispel the .
findings rendered by the learned civil Court, visavis, the validity, of, Will (supra), is comprised in the factum, that though it is a registered Will, and certified copy thereof, become proven from the official records, by the Record Keeper concerned, upon, the latter stepping into the witness box, and, though a rebuttable presumption of truth, is attached, to the afore manner of proof of certified/photocopy(ies) of original(s). Nonetheless, the predominant factum, for will (supra) rather being inferred to become rather clinchingly proven, when rather becomes comprised in, through one of the marginal witnesses' thereto, stepping into the witness box, and, his making candid affirmative testification, visàvis, statutory underlinings (supra), whereas, for wants of adduction of evidence (supra), the will (supra) acquires the vice of voidness. Therefore, this court concludes, that the afore exhibit, became aptly concluded by the learned first appellate Court, to be not validly proven, to hence become validly executed.
::: Downloaded on - 31/01/2022 23:00:31 :::CIS -16-9. The plaintiff's dependence upon Ext. AW2/A, .
however, become accepted by the learned First appellate Court. Consequently, the learned first appellate Court concluded, that the suit property assumed the colour of public religious trust, though it became purchased by one Ishwar Singh, in the name of Guru Granth Sahib, yet does not bestow, any legal authorization, upon, one Ishwar Singh, and, subsequently, upon his successively appointed Kardar(s), rather to the ouster of the worshipers of sikh religion, and, apart from the afore Ishwar Singh, and, his successively appointed Kardar, to rather bar them from making public worship of Guru Granth Sahib, within the hallowed precincts, hence purportedly designated, as a sikh gurudwara.
Imperatively hence it became concluded, that the suit property, since its inception, and, thereafter(s) too, dehors appointment(s) of Kardars, to manage the Sikh Gurudwara, it assumed the colour of a public religious trust, and/or the requisite animusdedicandi rather appertaining to a public place of worship, conspicuously perse preeminently surging forth, and, also inhering in the suit property. Therefore, the ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -17- entire sikh congregation became facilitated, to ensure in a .
Gurudwara hence kept Sh. Guru Grant Sahib, the makings of collective worship thereto(s).
10. However, for testing the validity of the afore made conclusion, this Court is required to peruse the provisions, as contained, in The Indian Trusts Act, 1882, in consonance wherewith trustnama, borne in Ext. AW2/A, as, becomes relied upon by the learned first appellate Court, for making the conclusion supra, hence became executed by one Maghi.
However, since a saving clause occurs therein, and, becomes extracted hereinafter: "Savings.--But nothing herein contained affects the rules of Muhammadan law as to waqf, or the mutual relations of the members of an undivided family as determined by any customary or personal law, or applies to public or private religious or charitable endowments, or to trusts to distribute prizes taken in war among the captors; and nothing in the second Chapter of this Act applies to trusts created before the said day."
and, with its rather making trite underlings, that the apposite delineated provisions thereof, are not applicable to public or ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -18- private religions or charitable endowment(s), especially when .
the afore came into being, before the coming into force of apposite governing therewith statutory enactment. The counsel are at ad idem, that the apposite hence governing the endowments (supra), is the Religious Endowments Act, 1963.
Therefore, when the imperative inference rather emerging from an incisive reading, of the hereinabove extracted saving clause, as, borne in the 1882 Act (supra), is, that this Court also becoming required to gather, from a perusal, of Ext.
AW2/A, whether the trustnama (supra) became executed before 1963. The year 1963 is significant, as in the afore year the Religious Endowment Act, 1963 came into force, and, when only prior thereto(s), rather created public/private endowments hence became protected by the saving clause afore, or in other words, only qua apposite endowment(s) created before 1963, hence become protected against the application thereon(s) rather of the Second Chapter borne in the Act of 1882 (supra). Since, a reading of the trustnama borne in Ext. AW2/A, makes it vividly apparent, that the date of execution of the afore trustnama, was subsequent to 1963.
::: Downloaded on - 31/01/2022 23:00:31 :::CIS -19-Thereupon, since the afore saving clause, makes inapplicable .
hence the mandate of Chapter2 thereof, only upon, the apposite trust(s) becoming created before 1963.
Consequently, when evidently Ex.AW2/A rather became executed subsequent to the enactment supra, in 1963, thereupon obviously, the mandate carried in the Second Chapter of the Act, of 1882 (supra) becomes attracted hence for fathoming the validity of Ext. AW2/A. Consequently, the validity of Ex.AW2/A is to be tested on anvil of evident satiation being made, visavis, the 2 nd Chapter carried in the 1882 Act (supra). Therefore, the apposite compliances, visa vis, the mandate(s) of the statutory provision, as become carried in Section 10 of the Indian Trust Act, Section whereof is extracted hereinafter, is required to be proven, visavis, trustnama Ex.AW2/A:
"10. Who may be trustee.--Every person capable of holding property may be a trustee; but, where the trust involves the exercise of discretion, he cannot execute it unless he is competent to contract. No one bound to accept trust.--No one is bound to accept a trust. Acceptance of trust.--A trust is accepted by any words or acts of the trustee indicating with reasonable certainty of such acceptance. Disclaimer of trust.--::: Downloaded on - 31/01/2022 23:00:31 :::CIS -20-
Instead of accepting a trust, the intended trustee may, within a reasonable period, disclaim it, and such .
disclaimer shall prevent the trust property from vesting in him. A disclaimer by one of two or more cotrustees vests the trust property in the other or others and makes him or them sole trustee or trustees from the date of the creation of the trust."
The conspicuous necessity for a valid trust rather being validly created, is comprised, in the proven existence of apposite entrustment(s) to the trustees, by author thereof, and, also the trustees are to clinchingly proven to either expressly or impliedly hence accept, the apposite entrustments, as become conveyed through the apposite trustnama. However, a reading of the crossexamination of PW1 reveals that, the trustees constituted thereunder, never accepted the entrustment, to them, of the suit property.
Therefore, since proof of acceptance of the apposite entrustment, either express or implied rather by the trustees , is a statutory sinequanone, for a valid trust, hence coming into being. As a corollary, since in the crossexamination of PW1, an articulation exists, visàvis, lack of knowledge of the trustees concerned qua existence of any trust. Thereupon, no ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -21- valid dependence can be made by the plaintiff concerned, for .
claiming through the said exhibit, hence any right for managing, and, looking after the affairs of the suit property owned by Guru Granth Sahib, nor the plaintiff concerned or the trustees concerned, on anvil thereof, can prima facie, oust the claim of codefendant No.1, in his staking any claim, even if invalid, to as Kardar/Manager, hence manage, and, look after the affairs of the suit property, purchased by one Ishwar Singh, in the name of Guru Granth Sahib.
12. Be that as it may, the author of the trust, one Maghi was also required to prove to be validly owning the suit property. The suit property, is unrebuttably disclosed in the apposite ownership column of the jamabandi, appertaining to the suit property, rather to be owned by Guru Granth Sahib.
Necessarily, hence neither Ishwar Singh nor Maghi were ever owners of the suit property, nor any of the afore, could create a valid trust hence for managing, and, looking after the affairs of the suit property, owned by Guru Granth Sahib. In sequel, the decision as made by the learned first appellate Court, upon, the trustnama (supra), inasmuch, as, it being valid, ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -22- and/or therethrough(s) a valid trust being created, is grossly .
amiss and misplaced. Even otherwise for reasons hereinafter, the entire controversy (supra) was redressable, through the apposite statutory availments, which however remaining unrecoursed, and, hence obviously cannot become rested by this Court.
13. Though through Ext. PX, exhibit comprises a resolution, passed by the author(s) concerned, r whereof with the purported consent of a Kardar one Maghi, the surviving spouse of Ishwar Singh, and, wherethrough a committee became constituted of persons named therein, rather for managing and looking after the affairs of the suit property, owned by Guru Granth Sahib, hence the plaintiffs rear the suit claim. However, since as aforestated, the learned Divisional Commissioner Mandi, had though affirmed, the order of remand, as, made by the Deputy Commissioner, Mandi, to the Assistant Collector 1st Grade concerned, hence to verify the factum of possession of the suit property, by person(s) concerned, and, to also decide the rival claims of the contesting litigant(s), to the office of Kardar of the suit ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -23- property, rather owned by the Guru Granth Sahib. Moreover, .
even if the Divisional Commissioner Mandi, had assigned predominance to the apposite verdict, visàvis, the afore factum, and, as becomes pronounced by the Civil Court of competent jurisdiction. Nonetheless when the decision, as made by the Assistant Collector concerned, upon, the afore making of Ext.
r PX, to controversy rather remains unadduced. As a sequitur, the and, therethroughs the apposite committee, being constituted, rather for managing and looking after the affairs of the suit property, rather owned by Guru Granth Sahib, appears to be an attempt, on behalf of all concerned, to during pendency of the afore subjudice controversy, before the Assistant Collector concerned, to untenably assume, the role of managing, and, looking after the affairs of the suit property, owned by the Guru Granth Sahib, and, also appears to be obviously hit by the doctrine of ressubjudice. Therefore, Ext. PX is legally inconsequential, for determining the suit claim. Since, the making of a decision (supra) by the revenue officer concerned, would then foist empowerment in the Civil Court concerned, to, test its ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -24- validity, and, nor when the controversy appertaining to .
Kardarship is subjudice before him. Moreover, when any action for granting the suit claim, becomes taken by all concerned, rather before a decision being made by the revenue authority concerned, thereupon too, the afore becomes legally unenforceable, unless material surges forth, and, displays that the Assistant Collector 1st Grade, after declining the apposite rival claims, visavis, Kardarship of the suit property, rather owned by Guru Granth Sahib, had permitted the litigant(s) concerned, to constitute a committee hence for managing, and, looking after the affairs of the suit property, owned by Guru Granth Sahib. Necessarily, and, obviously rather thereupto, no committee for managing, and, looking after the affairs of the suit property, could have been constituted, through Ext. PX, nor hence Ext. PX assumes any validity, conspicuously, when no order (supra) has been placed on record. Moreover, for reasons hereinafter, unless the statutory mechanism qua therewith became recoursed, recoursings whereof are evidently amiss, thereupon too, no ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -25- managing committee could ever become validly constituted for .
any requisite purpose.
14. Contrarily, however, as propounded by the Hon'ble Apex Court, in a judgment, carried in 2007 (7) SCC 482, titled A. A. Gopalakrishan vs. Cochin Devaswom Board and others, the relevant paragraph 10 whereof, becomes extracted hereinafter: "The properties of deities, temples and Devaswom Boards, require to be protected and safeguarded by their trustees /archakas/shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguaring the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This possible only with the passive or active collusion of the authorities concerned. Such acts of "fences eating of crops" should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation."
::: Downloaded on - 31/01/2022 23:00:31 :::CIS -26-It becomes incumbent upon this Court, to safeguard and .
protect the suit property, only upto the stage, till as hereinafter declared, the relevant statutory recoursings, if yet permissible, are completely recoursed, at the instance of the litigant concerned. Consequently, this Court proceeds to appoint the Deputy Commissioner, Kullu, as caretaker, and, receiver of the suit property, owned by Guru Granth Sahib, upto the relevant statutory processes, if yet permissible, being completed/concluded. The contesting litigants are directed to within two weeks hand over the suit khasra property to the D.C. Kullu. The contesting litigants are also directed to alongwith theirs handing over the entire suit property to the D.C. Kullu, hence, append therewith the completest signatured apposite inventories. Subsequently, the D. C. Kullu shall with the assistance of Sikh scholars, to be chosen by him, hence ensure the maintenance, and, dedicated upkeep of the hallowed precincts rather whereins the sacred book, is installed. He shall also ensure the regular dedicated observances of all rituals appertaining to the Sikh Religion..
Moreover, he shall keep regular audited accounts qua salaries, ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -27- and, also qua the revenue earned from suit property. In .
addition, he shall with the assistance of Sikh Sevadars/scholars, shall ensure the future renovations of the shrine, from the incomes realised from the suit property.
Necessarily, all licenses/lessees concerned, shall henceforth attorn to the D.C. Kullu.
15. Though, the learned counsel appearing for the aggrieved defendant(s), contended with much vigor, before this Court, that since the Apex Court, in judgment, reported in 2003 (11) SCC 377, titled Shiromani Gurdwara Parbandhak Committee vs. Mahant Harnam Singh C. (DEAD), M.N. Singh & others, hence in paragraphs 14 and 15, paragraphs whereof are extracted hereinafter: "14. The sine qua non for an institution to be treated as a Sikh gurdwara, as observed in the said case, is that there should be established a Guru Granth Sahib, and the worship of the same by the congregation, and a Nishan Sahib. There may be other rooms of the institution made for other purposes but the crucial test is the existence of a Guru Granth Sahib and the worship thereof by the congregation and Nishan Sahib.
15. Unless the claim falls within one or the other of the categories enumerated in subsection (2) of Section ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -28- 16, the institution cannot be declared to be a Sikh gurdwara."
.
has expostulated, the indispensable para meters, for any sikh religious institution(s) being nomenclatured as "Gurudwara".
The trite principle(s), as, become enunciated therein, for Sikh religious institution(s), being construable as "Gurudwara", are r to comprised in (a) the apposite allowed precincts being proven to therein carry, the provenly established Granth Sahib (b) the worship of the same by the Sikh therein, Guru congregation, (c) and cogent evidence being adduced, qua existence of Nishan Sahib, within the precincts of the shrine concerned.
16. Though, the learned counsel for the defendant(s) contended, that the afore imperative para meters, are not satiated by the shrine concerned, and, obviously contends, that the Guru Granth Sahib, was meant only for the personal worship of one Ishwar Singh, and, thereafter by his surviving spouse, and, subsequently by the purportedly validly appointed Kardar, which he has argued to be one Uttam Singh. Therefore, the suit property hence owned by Guru Granth Sahib, is, contended by him, to be neither carrying ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -29- thereins, the, essential rubric appertaining to any dedication .
thereof to the public, for the latter hence making worship thereto, in a congregation, nor the afore holy book, can be permitted to be installed, inside the Gurudwara concerned, and, nor hence becomes amenable for public congregation(s) through, theirs assembling inside the gurudwara, hence make obeisance to the holy book, to rather within any hallowed precincts. However, the afore made argument, is completely amiss, as the defendant No.1, admits in his cross examination, visàvis, Bhajan(s) and Kirtan(s) being performed in the presence, of the holy Guru Granth Sahib, rather, inside the apposite holy shrine. Moreover, he also admits in his crossexamination, that a granthi occupies a seat inside the holy place, wherein also Sh. Guru Granth Sahib, is installed or kept. Furthermore he also admits that photocopy of Ext. PW4/A, appertains to the Gurudwara concerned. Therefore, within the ambit of expostulation of law (supra) as, become constituted in the verdict supra, Sh. Guru Granth Sahib is construable to be installed or kept inside the holy premises, of the Gurudwara concerned, and, besides ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -30- thereto a firm inference, can be erected, that the Sikh .
congregation, does collectively pay obeisance, to, the holy book, rather kept or installed hence inside the apposite purported Gurudwara.
17. As aforestated, the very factum of the suit property being owned by Guru Granth Sahib, dehors one Ishwar Singh, purchasing it in the name of Guru Granth Sahib, though he assumed in the afore capacity, the role of Kardar, of r and, the suit property, and, thereafter his spouse also assumed the role (supra), is perse manifestive, that at its very inception, the suit property rather with an aminusdedicandi, did become dedicated for public worship)s, inasmuch as, it being open for deification rather by the followers of the Sikh religion.
Even the assumption by one Ishwar Singh, and, thereafter by his surviving spouse, one Maghi, the respective role(s) of Kardar of the suit property, rather for the best management, and, care taking of the suit property, owned by Guru Granth Sahib, also does not negate the afore drawn inference.
However, the afore inference may become scuttled, upon, evidence surging forth, and its displaying that the Kardarship ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -31- supra, was not only, for, managing and taking care, of, the .
suit property owned by Guru Granth Sahib, but also was to ensure that each of the afore, rather solitarily making, to the proven exclusion of the followers of the sikh religion, hence worship of Guru Granth Sahib, given its being evidently kept inside their respective personal homesteads/dwellings.
arrived,
r that to
However, the afore evidence is amiss. Therefore, a conclusion become at the inception of its apposite dedication, obviously the apparent aminusdedicandi hence of the suit property, to Shri Guru Granth Sahib, through its purchase, by one Ishwar Singh, in the name of Shri Guru Granth Sahib, rather making its imminent display, and, that one Ishwar Singh, in the afore capacity, suomotu assuming the role of Kardar, nor thereafter the Kardars concerned, rather not ebbing the effect, of the afore conclusion, that the holy book being meant for public worship by the followers of, the, sikh religion.
18. Be that as it may, with the enactment of Punjab Reorganization Act 1966, certain properties, as mentioned in Section 5 thereof, became transferred from Punjab to ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -32- Himachal Pradesh, and, one amongst the territories, which .
became transferred from Punjab to Himachal Pradesh, is Kullu District, wherein the suit property occurs. However, since Section 88 of the Punjab Reorganization Act, 1966, provisions whereof are extracted hereinafter: "88. Territorial extent of laws. The provisions of Part II shall not be deemed to have effected any change in the territories to which any law in force immediately before the appointed day extends or applies, and territorial references in any such law to the State of Punjab shall, until otherwise provided by a competent Legislature or other competent authority, be construed as meaning the territories within that State immediately before the appointed day."
makes clear graphic displays, that dehors the transfer(s) of the territory(ies) mentioned in Section 5 thereof, from Punjab to Himachal Pradesh, rather not effecting any change in the territories, to which any law in force immediately before the apposite Act is made applicable, besides its making clear echoings, that statutory references in any such law, to the State of Punjab, until otherwise provided, by the competent legislature, or competent authority, being construed, as covering all those territories within that State immediately ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -33- hence before the appointed date. Consequently, the tenacity, .
of, maintainability of the extant civil suit, before the civil court concerned, has to be tested, on anvil of The Sikh Gurudwara Act 1925. However, though the suit property supra, became amenable at its inception, to, the mandate of statute (supra), given at the phase (supra), it becoming comprised in the State of Punjab. Nonetheless, since the afore statutory provisions neither became recoursed at the phase supra by one Ishwar Singh nor by any congregation of sikh religion, nor hence any time thereafters, thereupon the import(s) thereof, i.e. Statute (supra) qua, maintainability of the extant civil suit, can not be fully gauged therefroms.
19. However, since Section 88 of the Act (supra) makes applicable, dehors the transfer of the apposite territory, hence existing, prior to the coming into being, of, the Punjab Reorganization Act, in the State of Punjab to Himachal Pradesh through Section 5 thereof, make applicable to even the transferred territory concerned, all the laws in force in the erstwhile state of Punjab, unless the State of Himachal Pradesh or any other competent authority, evidently makes ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -34- the relevant laws inapplicable to the State of Himachal .
Pradesh. However, the H.P. State legislative Assembly, has evidently not made inapplicable to the apposite territory of Himachal Pradesh, all the provisions, as, borne in The Sikh Gurudwara Act 1925, nor any other competent authority, is stated by the counsel for the contesting defendants, and, by the counsel for the plaintiff, to hence make inapplicable to the transferred territory concerned, hence, the mandate of the Sikh Gurdwara Act. Therefore, this Court concludes, that though operation of Section 88, of, the Punjab Reorganization Act, the Sikh Gurdwara Act, is applicable to District Kullu, especially since it became transferred, by the State of Punjab, to the State of Himachal Pradesh. Consequently, at this stage, it becomes imperative to extract the provisions of Section 3, of, the Sikh Gurdwara Act, 1925, provisions whereof read as under: "3. List of property of scheduled Gurdwara to be forwarded to the State Government. (1) Any Sikh or any present officeholder of a gurdwara specified in schedule I [or, added thereto by the Amending Act, may forward to the State Government through the appropriate Secretary to Government so as to reach the ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -35- Secretary within ninety day of the commencement of this Act, or, in the case of the extended territories, .
within one hundred and eighty days of the commencement of the Amending Act, as the case may be], a list, signed and verified by himself, of all rights, titles or interests in immovable properties situated in Punjab inclusive of the gurdwara and in all monetary, endowments yielding recurring income or profit received in Punjab which he claims to belong, within his knowledge, to the gurdwara; the name of the person in possession of any such right, title or interest, and if any such person is insane or a minor, the name of his legal or natural guardian, or if there is no such guardian, the name of the person with whom the insane person or minor resides or is residing, or if there is no such person, the name of the person actually or constructively in possession of such right, title or interest on behalf of the insane person or minor, and if any such right title or interest is alleged to be in possession of the gurdwara through any person, the name of such person, shall be stated in the list; and the list shall be in such form and shall contain such further particulars as may be prescribed. [Explanation. For the purposes of this section and all other succeeding sections; the expression "Punjab" shall mean the State of Punjab as formed by section 11 of the States Reorganization Act, 1956.] (2) Declaration of scheduled gurdwara and publication of list forwarded under subsection (1) ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -36- in a consolidated list. On receiving a list duly forwarded under the provisions of subsection (1) the .
[State] Government shall, as soon as may be, publish a notification declaring that the gurdwara to which it relates is a Sikh Gurdwara and, after the expiry of the period provided in subsection (1) for forwarding lists shall, as soon as may be, publish by notification a consolidated list in which all rights, titles and interests in any such properties as are described in subsection (1) which have been included in any list duly forwarded, shall be included, and shall also cause the consolidated list to be published, in such manner as may be prescribed, at the headquarters of the district and of the tahsil and in the revenue estate where the gurdwara is situated, and at the headquarters of every district and of every tahsil and in every revenue estate in which any of the immovable properties mentioned in the consolidated list is situated and shall also give such other notice thereof as may be prescribed.
(3) Notices of claims to property entered in the consolidated list to be sent to persons shown as in possession. The [State] Government shall also, as soon as may be; send by registered post a notice of the claim to any right, title or interest included in the consolidated list to each of the persons named therein as being in possession of such right, title or interest either on his own behalf or on behalf of an insane person or minor or on behalf of the gurdwara, provided that no such notice need be sent if the person named ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -37- as being in possession is the person who forwarded the list in which the right, title or interest was claimed.
.
(4) Effect of publication of declaration and consolidated list under subsection (2). The publication of a declaration and of a consolidated list under the provisions of subsection (2) shall be conclusive proof that the provisions of subsections (1), (2) and (3) with respect of such publication have been duly complied with and that the gurdwara is a Sikh Gurdwara, and the provisions of Part II shall apply to such gurdwara with effect from the date of the publication of the notification declaring it to be a Sikh Gurdwara."
The statutory provisions supra embody the completest provisions with respect to enlisting of Gurudwara(s) concerned, as scheduled Gurudwara(s). It also contains provision(s) with respect to, after invitation of, objections to the petition, as became preferred, to the government concerned, for the espoused declaration being made, hence for the enlistment of the Gurudwara concerned, in the apposite schedule, rather along with its property, rather thereupon(s), the statutory declaration becomes assigned the completest validity. Prima facie subsection (5) of Section 7, ascribes the completest conclusivity, to the published statutory ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -38- notification, hence declaring any Sikh Shrine, to be hence .
validly enlisted in the apposite schedule, and, also assigns conclusivity to valid adoption(s), of the contemplated statutory procedure(s), for its enlistment. However, since Section 8 of the Act (Supra) occurs after Section 7 thereof, and, through reserve a right in the persons concerned, to contest the validity of the prior thereto made statutory declaration.
Necessarily, when rather the mandate of Section 8 of the Act (supra) remained unrecoursed, therefore Section 8 does not come to the forefront, and, does assign conclusivity hence to the prior thereto made statutory declarations.
Emphassisingly, the afore allusions are merely academic, and, obviously do not rest the controversy at hand, given none of the statutory processes (surpa) becoming ever recoursed.
20. Be that as it may, at the time purchase of the suit property, by one Ishwar Singh, in the name of Guru Granth Sahib, conspicuously when it occurs in District Kullu, H.P., and whereat, at the relevant time of purchase supra, the trite territory fell, in the erstwhile Punjab, and to which, the provisions, of The Sikh Gurudwara Act 1925, rather were ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -39- applicable, neither evidently the afore Ishwar Singh, nor Sikh .
worshipers numbering 50 or more, nor thereafter any sikh worshipers, of the disputed sikh shrine, hence numbering 50 or more, rather proceeded to, cast a petition under Section 3 or under Section 7,of the Afore Act, seeking therethrough, a declaration for the sikh shrine being declared as a sikh gurudwara. Since the Sikh Gurudwara Act 1925 is a special statute rather governing the mode of enlistment of the sikh shrine, in the apposite schedule, and, also regulates the makings of declaration, of ,any shikh shrine, hence as a sikh gurudwara besides regulates the appointments concerned to the Sikh Shrine concerned. Therefore, it acquires complete force, visàvis, the facet supra, and, no legal mechanism than, the ones contemplated in statutory provisions thereof, becomes amenable for becoming recoursed, rather for the relevant purpose, by the plaintiff. Consequently neither the plaintiff and nor the defendant can at this stage make any dependence, upon provisions supra. However, Section 29 of The Sikh Gurudwara Act 1925, provisions whereof, are, ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -40- extracted hereinafter also do require, an allusion being made .
thereto, provisions whereof become extracted hereinafter: "29. Exclusion of jurisdiction of the courts. Notwithstanding anything contained in any other law or enactment for the time beingin force no suit shall be instituted and no court shall entertain or continue any suit or proceeding, in so far as such suit or proceeding involves (1) any claim to, or prayer for the restoration of any person to an office in a Notified Sikh Gurudwara or any prayer for the restoration or establishment of any system of management of a Notified Sikh Gurdwara other than a system of management established under the provisions of Part III;
(2) any claim to, or prayer for the restoration of any person to an office in or any prayer for the restoration or establishment of any system of management of, any gurdwara in respect of which a notification has been published in accordance with the provisions of sub section (3)of Section 7 unless and until it has been decided under the provisions of Section 16 that such gurdwara should not be declared to be a Sikh Gurdwara."
though section (supra), completely bars the exercisings of jurisdictions, by the civil Court concerned, inasmuch as, for entertaining any suit, appertaining to establishment of a ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -41- system, for managing of Gurudwara, nor any claim or prayer .
is amenable to be made before any civil court concerned, and, appertaining to registration of any person, to any office, nor any prayer for registration of management of any Gurudwara, in respect whereof a notification, has been published, in accordance with the provisions, of subsection 3 of Section 7, can be validly made before the Civil Court concerned, unless and until, the Arbitral mechanism contemplated in the Act (supra), inasmuch as in Section 16 of the Act, rather makes a decision that the Gurudwara should not be declared to be a sikh gurudwara.
21. However, a reading of the afore extracted provisions, as carried in Section 7, and, Section 29, does make imminent disclosure(s), that Section 7 is applicable, only upon, the provisions enshrined therein, besides the provisions occurring in the prior thereto section(s), becoming complied with. However, since as aforestated, neither one Ishwar Singh during his life time, nor thereafters hence the apposite Sikh congregation(s), numbering 50, or more hence recoursed the provisions, as carried in Chapter2, nor when thereafter(s), the ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -42- proceedings, under Section 16 of the Act, with respect to the .
strived for declaration, became commenced nor became terminated, with respect to the apposite shrine being not amenable for being or being amenable for being declared as a sikh gurudwara. Significantly, when Section 29 thereof, rather conditionally bars the jurisdiction of the civil Court, only, upon, and, uptil the mandate pronounced in Section 16 of the Act (supra) becoming completely terminated. However, since as stated (supra) the afore mandate remained un recoursed Therefore, operation of afore Section 29, visavis, therethroughs, the jurisdiction of the civil court concerned, becoming ousted, especially in respect of matters, mentioned therein, cannot be accepted, to, fall within the domain of section supra. However, yet the afore drawn inference, visa vis, the suit property at its inception, hence assuming, the trait of animusdedicandi, does assume the fullest vigor, as, it dehors the statutory declaration rather facilitates public worship, of, the holy book, hence within the apposite hallowed precincts, and, for ensuring collective worships, thereto(s) this ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -43- Court has appointed the D.C., Kullu, as, Court Receiver, of the .
suit property.
22. Be that as it may, Section 38 of the Sikh Gurudwara Act 1925, occurring in ChapterIV of Special Statue, (supra), contains relevant conditional civil Court jurisdiction vesting provision, provision(s) whereof, are extracted hereinafter: " 38. Recourse to ordinary courts in cases where action has not been taken under Part I with a view to application of provisions of Part III to gurdwara. (1) Notwithstanding anything contained in this Act or any other Act or enactment in force, any two or more persons having interest in any gurdwara in respect of which no notification declaring the gurdwara to be a Sikh Gurdwara has been published under the provisions of this Act may, after the expiry of one year from the commencement of this Act [or, in the case of the extended territories, from the commencement of the Amending Act, as the case may be] or of such further period as the [State] Government may have fixed under the provisions of subsection (1) of Section 7, and after having obtained the consent of the Deputy Commissioner of the district in which such gurdwara is situated institute a suit, whether contentious or not, in the principal court of original jurisdiction or in any other court empowered in that behalf by the [State] ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -44- Government within the local limits of whose jurisdiction the gurdwara is situated praying for any of .
the reliefs specified in section 92 of the Code of Civil Procedure, 1908(5 of 1908), and may in such suit pray that the provisions of Part III may be applied to such gurdwara.
(2) The court in which a suit is instituted under the provisions of subsection (1) shall decide whether the gurdwara is or is not a gurdwara as described in sub section (2) of Section 16, and if the court decides that it is such a gurdwara and is also of opinion that, having regard to all the circumstances, the gurdwara is one to the management of which the provisions of Part III should be applied, the court shall by public advertisement and in such other manner as it may in each case direct, call upon any person having interest in the gurdwara to appear and show cause why the provisions of Part III should not be so applied, and shall in its order fix a date not less than one month from the date of the order on which any person appearing shall be heard.
(3) Upon the date fixed under the provisions of sub section (2) or on any subsequent date to which the hearing may be adjourned, the court shall proceed to hear the person or persons, if any, appearing and if the court is satisfied that the provisions of Part III can be applied to the management of the gurdwara without prejudice to any existing order or decree relating to the gurdwara and conferring on any person or declaring ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -45- any person to be entitled to any right, in respect of the administration or management thereof, the court shall .
pass a decree that the said provisions shall apply to the management of the gurdwara.
(4) Upon such decree being passed and subject to any order that may be passed on appeal against or in revision of the decree the provisions of Part III shall apply to such gurdwara as if it had been declared by notification under the provisions of this Act to be a Sikh Gurdwara.
(5) When under the provisions of subsection (3) the provisions of Part III have by decree been applied to the management of a gurdwara any hereditary office holder of such gurdwara who within twelve months after the date of the decree has resigned office or been removed from office otherwise than in accordance with the provisions of section 134 or under the provisions of section 142 or a presumptive successor of such office holder, may within ninety days from the date of the resignation or removal, as the case may be of such officeholder, present a petition to the Court which passed the decree claiming to be awarded compensation on the ground that he has suffered or will suffer pecuniary loss owing to a change in the management of such gurdwara and the court may, notwithstanding the fact that such officeholder has voluntarily resigned, pass a decree awarding him compensation as if such officeholder had been unlawfully removed from his office.
::: Downloaded on - 31/01/2022 23:00:31 :::CIS -46-(6) The provisions of sections 22, 23, 24 and 25 shall so far as may be, apply to proceedings under the .
provisions of subsection (5) and to proceedings arising therefrom, as if the court was a tribunal."
The provisions supra, when commence with a non obstante clause, obviously hence override, the prior thereto provisions, as carried in Chapters 2 and 3 of the Act (supra), also operate(s) as an exception thereto(s).
therethroughs, the apposite jurisdiction of the civil court(s) r Therefore, rather becomes conditionally preserved, even when the statutory provisions prior thereto, appertaining to, the, Sikh shrine being or not being a sikh gurudwara, hence remained unrecoursed. However, the statutory conditional vestment of jurisdiction, in the civil Courts, by Section 38 supra, is rested upon the statutory leave, of the Deputy Commissioner concerned, being asked, and, it being also granted, imperatively prior to the institution of the suit. However, when the afore statutory leave became evidently niether asked for, nor when it became granted. In nutshell, for breach of the mandate of Section 38 of the Act, this Court concludes,that the instant civil suit is grossly misconstituted, and, also is not ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -47- maintainable, besides obviously the civil court, had no .
jurisdiction, to try and maintain it, without the prior thereto statutorily mandated leave, envisaged in Section 38 of the Act (supra), being asked for, and it being accorded, by the Deputy Commissioner of District Kullu, H.P.
23. In view of the afore observation, there is merit in the instant appeal, and, the same is accordingly allowed. The judgment(s) and decree(s) impugned before this Court is set aside. The substantial questions of law are accordingly answered. The suit of the plaintiff(s) is dismissed, it being barred by law. However, the impugned verdict of 6.6.1997, rendered by the learned Additional District Judge, Kullu, District Kullu, H.P. is modified to the extent that the Deputy Commissioner, Kullu, is appointed as caretaker, and, receiver of the suit property, owned by Guru Granth Sahib, upto the relevant statutory process, if now permissible, being completed/concluded. The contesting litigants are also directed to alongwith theirs handing over the entire suit property to the D.C. Kullu, hence, append therewith the completest signatured apposite inventories. Subsequently, the ::: Downloaded on - 31/01/2022 23:00:31 :::CIS -48- D. C. Kullu shall with the assistance of Sikh scholars, to be .
chosen by him, hence ensure the maintenance, and, dedicated upkeep of the hallowed precincts rather whereins the sacred book, is installed. He shall also ensure the regular dedicated observances of all rituals appertaining to the Sikh Religion.
Moreover, he shall keep regular audited accounts qua salaries, addition, he r shall to and, also qua the revenue earned from the suit property. In with the assistance of Sikh Sevadars/scholars, shall ensure the future renovations of the shrine, from the incomes realised from the suit property.
Necessarily, all licenses/lessees concerned, shall henceforth attorn to the D.C. Kullu. All pending applications, if any, also stand disposed of.
(Sureshwar Thakur) Judge 3rd September, 2021 (kck) ::: Downloaded on - 31/01/2022 23:00:31 :::CIS