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Delhi District Court

3. Raj Narain Sharma & Ors. vs . Prakash Narain Sharma & Ors. on 19 February, 2020

            1. Suresh Narain Sharma V. Raj Narain Sharma & Ors.
       2. Suresh Narain Sharma V. Mahesh Narain Sharma & Ors. and
       3. Raj Narain Sharma & Ors. Vs. Prakash Narain Sharma & Ors.

            IN THE COURT OF SH. ARUN SUKHIJA,
ADDITIONAL DISTRICT JUDGE - 07, (CENTRAL DISTRICT)
                  TIS HAZARI COURTS, DELHI.


RCA NO.:­ 31/2016
UNIQUE CASE ID NO.:­ 61140/2016


APPEAL AGAINST THE DECREE & JUDGMENT DATED
20/09/2014   PASSED    BY THE    THEN  LD.   CIVIL
JUDGE/M.M. (WEST), TIS HAZARI COURTS DELHI IN SUIT
NO. 391/10/77 TITLED AS MAHESH NARAIN SHARMA VS.
PT. RAM NARAIN SHARMA & ORS. FOR PERMANENT
INJUNCTION AND RENDITION OF ACCOUNTS


IN THE MATTER OF :­

Sh. Suresh Narain Sharma
S/o (Late) Pt. Ram Narain Sharma,
Residing at B­6/11, Krishna Nagar,
Delhi­110051.                                    .... Appellant

                               VERSUS

1.    Sh. Mahesh Narain Sharma (Deceased) - Ex­parte
      S/o (Late) Pt. Ram Narain Sharma,
      (Through LRs of deceased as below)
      (a) Smt. Deepa Sharma

RCA Nos. 31, 32 and 33/2016                             Page ­ 1 of 102
             1. Suresh Narain Sharma V. Raj Narain Sharma & Ors.
       2. Suresh Narain Sharma V. Mahesh Narain Sharma & Ors. and
       3. Raj Narain Sharma & Ors. Vs. Prakash Narain Sharma & Ors.

            W/o (Late) Sh. Mahesh Narain Sharma
            R/o 1717, Roshanpura, Nai Sarai,
            Delhi­110006.

      (b)   Sh. Abhishek Sharma
            S/o (Late) Sh. Mahesh Narain Sharma
            R/o 1717, Roshanpura, Nai Sarai,
            Delhi­110006.

      (c)   Smt. Abha
            D/o (Late) Sh. Mahesh Narain Sharma,
            C/o Smt. Deepa Sharma,
            residing at 1717, Roshanpura, Nai Sarai,
            Delhi­110006.
            (Substituted vide Order dated 07/02/2017)

2.    Sh. Raj Narain Sharma (Deceased)
      S/o (Late) Pt. Ram Narain Sharma,
      (Through LRs of deceased as below)

      (a)   Smt. Shobha Rani
            (Deleted vide Order dated 10­01­2019).
            (Wife of Late Sh. Raj Narain Sharma)

      (b)   Sh. Rajeev Sharma (Son of Deceased)
            R/o 1447, III Floor, Gali Arya Samaj,
            Bazar Sita Ram, Delhi­110006.

      (c)   Sh. Sanjeev Sharma (Son of Deceased)
            R/o 2351, Dharampura, Near Chhipiwara,
            Chhatta Shahji, Delhi­110006.

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             1. Suresh Narain Sharma V. Raj Narain Sharma & Ors.
       2. Suresh Narain Sharma V. Mahesh Narain Sharma & Ors. and
       3. Raj Narain Sharma & Ors. Vs. Prakash Narain Sharma & Ors.

      (d)   Sh. Pradeep Sharma (Son of Deceased)
            R/o 23/62, Chhipiwara,
            Near Jama Masjid, Delhi­110006.

      (e)   Smt. Vandana Rohtagi (Daughter of Deceased)
            R/o J­42, Gamma­II,
            Greater Noida­201301 (U.P.).

3.    Sh. Prakash Narain Sharma - Ex­parte.
      S/o (Late) Pt. Ram Narain Sharma,
      R/o 45, Samrat Apartments,
      Vasundhara Enclave, Ashok Nagar,
      Delhi­110096.

4.    Sh. Prem Narain Sharma - Ex­parte
      S/o (Late) Pt. Ram Narain Sharma,
      R/o G­32, Ashok Vihar,
      Phase­I, Delhi­110052.

5.    Smt. Sarla Devi (Deceased)
      W/o Late Radhey Mohan
      Died Issue­less.
      (Deleted vide Order dated 07.02.2017)

6.    Smt. Pushpa Devi - Ex­parte
      (W/o Late Sh. Kishore Chand)
      R/o G­32, Ashok Vihar,
      Phase­I, Delhi­110052.

7.    Smt. Kanta Devi
      (W/o Late Sh. Ram Narain Sharma)

RCA Nos. 31, 32 and 33/2016                             Page ­ 3 of 102
             1. Suresh Narain Sharma V. Raj Narain Sharma & Ors.
       2. Suresh Narain Sharma V. Mahesh Narain Sharma & Ors. and
       3. Raj Narain Sharma & Ors. Vs. Prakash Narain Sharma & Ors.

      R/o 2354, Dharampura, Naiwara,
      Chhatta Shahji, Delhi­110006.

8.    Sh. Mukesh Narain
      (S/o Late Sh. Ram Narain Sharma)
      R/o 1/75, Sector­II,
      Rajendra Nagar, Sahibabad­201005,
      Distt. Ghaziabad (U.P.)

9.    Sh. Ajay Narain
      (S/o Late Sh. Ram Narain Sharma)
      R/o 2354, Dharampura, Naiwara,
      Chhatta Shahji, Delhi­110006.    .... Respondents

Date of institution of the Appeal : 17/11/2014 Date on which Judgment was reserved : 06/01/2020 Date of Judgment : 19/02/2020 AND RCA NO.:­ 32/2016 UNIQUE CASE ID NO.:­ 61139/2016 APPEAL AGAINST THE DECREE (AMENDED) DATED 21.10.2014 AND JUDGMENT DATED 20/09/2014 PASSED BY THE THEN LD. CIVIL JUDGE/M.M. (WEST), TIS HAZARI COURTS DELHI IN SUIT NO. 385/10/78 TITLED AS RAJ RCA Nos. 31, 32 and 33/2016 Page ­ 4 of 102

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NARAIN SHARMA VS. RAM NARAIN SHARMA & ORS. FOR DECLARATION, PERMANENT INJUNCTION AND RENDITION OF ACCOUNTS IN THE MATTER OF :­ Sh. Suresh Narain Sharma S/o (Late) Pt. Ram Narain Sharma, Residing at B­6/11, Krishna Nagar, Delhi­110051. .... Appellant VERSUS

1. Sh. Raj Narain Sharma (Deceased) S/o (Late) Pt. Ram Narain Sharma, (Through LRs of deceased as below)

(a) Smt. Shobha Rani (Deleted vide Order dated 10­01­2019).

(Wife of Late Sh. Raj Narain Sharma)

(b) Sh. Rajeev Sharma (Son of Deceased) R/o 1447, III Floor, Gali Arya Samaj, Bazar Sita Ram, Delhi­110006.

(c) Sh. Sanjeev Sharma (Son of Deceased) R/o 2351, Dharampura, Near Chhipiwara, Chhatta Shahji, Delhi­110006.

(d) Sh. Pradeep Sharma (Son of Deceased) RCA Nos. 31, 32 and 33/2016 Page ­ 5 of 102

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R/o 23/62, Chhipiwara, Near Jama Masjid, Delhi­110006.

(e) Smt. Vandana Rohtagi (Daughter of Deceased) R/o J­42, Gamma­II, Greater Noida­201301 (U.P.).

2. Sh. Prakash Narain Sharma - Ex­parte.

S/o (Late) Pt. Ram Narain Sharma, R/o 45, Samrat Apartments, Vasundhara Enclave, Ashok Nagar, Delhi­110096.

3. Sh. Prem Narain Sharma - Ex­parte S/o (Late) Pt. Ram Narain Sharma, R/o G­32, Ashok Vihar, Phase­I, Delhi­110052.

4. Sh. Mahesh Narain Sharma (Deceased) - Ex­parte S/o (Late) Pt. Ram Narain Sharma, (Through LRs of deceased as below)

(a) Smt. Deepa Sharma W/o (Late) Sh. Mahesh Narain Sharma R/o 1717, Roshanpura, Nai Sarai, Delhi­110006.

(b) Sh. Abhishek Sharma S/o (Late) Sh. Mahesh Narain Sharma R/o 1717, Roshanpura, Nai Sarai, Delhi­110006.

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(c) Smt. Abha D/o (Late) Sh. Mahesh Narain Sharma, C/o Smt. Deepa Sharma, residing at 1717, Roshanpura, Nai Sarai, Delhi­110006.

(Substituted vide Order dated 07/02/2017)

5. Smt. Sarla Devi (Deceased) W/o Late Radhey Mohan Died Issue­less.

(Deleted vide Order dated 07.02.2017)

6. Smt. Pushpa Devi - Ex­parte (W/o Late Sh. Kishore Chand) R/o G­32, Ashok Vihar, Phase­I, Delhi­110052.

7. Smt. Kanta Devi (W/o Late Sh. Ram Narain Sharma) R/o 2354, Dharampura, Naiwara, Chhatta Shahji, Delhi­110006.

8. Sh. Mukesh Narain (S/o Late Sh. Ram Narain Sharma) R/o 1/75, Sector­II, Rajendra Nagar, Sahibabad­201005, Distt. Ghaziabad (U.P.)

9. Sh. Ajay Narain (S/o Late Sh. Ram Narain Sharma) R/o 2354, Dharampura, Naiwara, RCA Nos. 31, 32 and 33/2016 Page ­ 7 of 102

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Chhatta Shahji, Delhi­110006. .... Respondents Date of institution of the Appeal : 17/11/2014 Date on which Judgment was reserved : 06/01/2020 Date of Judgment : 19/02/2020 AND RCA NO.:­ 33/2016 UNIQUE CASE ID NO.:­ 61519/2016 APPEAL AGAINST THE DECREE (AMENDED) DATED 21.10.2014 AND COMMON JUDGMENT DATED 20/09/2014 PASSED BY THE THEN LD. CIVIL JUDGE/M.M. (07­WEST), TIS HAZARI COURTS DELHI IN SUIT NO. 385/10/78 TITLED AS RAJ NARAIN SHARMA VS. RAM NARAIN SHARMA & ORS. FOR DECLARATION, PERMANENT INJUNCTION AND RENDITION OF ACCOUNTS CONSOLIDATED WITH SUIT NO. 391/10/77 TITLED AS MAHESH NARAIN SHARMA VS. RAM NARAIN SHARMA & ORS. FOR PERMANENT INJUNCTION AND RENDITION OF ACCOUNTS DATED 24.11.1977.

IN THE MATTER OF :­ Sh. Raj Narain Sharma (Deceased) S/o Pt. Ram Narain Sharma, RCA Nos. 31, 32 and 33/2016 Page ­ 8 of 102

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(Through LRs of deceased as below):­

(a) Smt. Shobha Rani (Wife of late Sh. Raj Narain Sharma) Deleted vide Order dated 10­01­2019

(b) Sh. Rajeev Sharma (Son of Deceased) R/o 1447, III Floor, Gali Arya Samaj, Bazar Sita Ram, Delhi­110006.

(c) Sh. Sanjeev Sharma (Son of Deceased) R/o 2351, Dharampura, Chhipiwara, Chhatta Shahji, Delhi­110006.

(d) Sh. Pradeep Sharma (Son of Deceased) R/o 23/62, Chhipiwara, Near Jama Masjid, Delhi­110006.

(e) Smt. Vandana Rohtagi (Daughter of Deceased) R/o J­42, Gamma­II, Greater Noida­201301 (U.P.) .... Appellants VERSUS

1. Sh. Prakash Narain Sharma - Ex­parte.

S/o (Late) Pt. Ram Narain Sharma, R/o 45, Samrat Apartments, Vasundhara Enclave, Ashok Nagar, Delhi - 110096.

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2. Sh. Prem Narain Sharma - Ex­parte S/o (Late) Pt. Ram Narain Sharma, R/o G­32, Ashok Vihar, Phase­I, Delhi­110052.

3. Sh. Mahesh Narain Sharma (Deceased) - Ex­parte S/o (Late) Pt. Ram Narain Sharma, (Through LRs of deceased as below):­

(a) Smt. Deepa Sharma W/o (Late) Sh. Mahesh Narain Sharma R/o 1717, Roshanpura, Nai Sarai, Delhi­110006.

(b) Sh. Abhishek Sharma S/o (Late) Sh. Mahesh Narain Sharma R/o 1717, Roshanpura, Nai Sarai, Delhi­110006.

(c) Smt. Abha D/o (Late) Sh. Mahesh Narain Sharma, C/o Smt. Deepa Sharma, residing at 1717, Roshanpura, Nai Sarai, Delhi­110006.

4. Smt. Sarla Devi (Deceased) W/o Late Radhey Mohan (Died Issue­less) (Deleted vide Order dated 09.01.2015)

5. Smt. Pushpa Devi - Ex­parte RCA Nos. 31, 32 and 33/2016 Page ­ 10 of 102

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(W/o Late Sh. Kishore Chand) R/o G­32, Ashok Vihar, Phase­I, Delhi­110052.

6. Sh. Suresh Narain Sharma S/o (Late) Pt. Ram Narain Sharma, Residing at B­6/11, Krishna Nagar, Delhi­110051.

7. Smt. Kanta Devi (W/o Late Sh. Ram Narain Sharma) R/o 2354, Dharampura, Naiwara, Chhatta Shahji, Delhi­110006.

8. Sh. Mukesh Narain (S/o Late Sh. Ram Narain Sharma) R/o 1/75, Sector­II, Rajendra Nagar, Sahibabad­201005, Distt. Ghaziabad (U.P.)

9. Sh. Ajay Narain Sharma (S/o Late Sh. Ram Narain) R/o 2354, Dharampura, Naiwara, Chhatta Shahji, Delhi­110006. .... Respondents Date of institution of the Appeal : 20/11/2014 Date on which Judgment was reserved : 06/01/2020 Date of Judgment : 19/02/2020 RCA Nos. 31, 32 and 33/2016 Page ­ 11 of 102

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::­ COMMON JUDGMENT ­::

APPEAL NO. 31/2016 TITLED SURESH NARAIN SHARMA VERSUS MAHESH NARAIN SHARMA IN SUIT NO.

391/10/77 TITLED AS MAHESH NARAIN SHARMA VS. RAM NARAIN SHARMA & ORS.

1. The appellant was defendant no. 7, Shri Mahesh Narain Sharma (deceased)­respondent no.1 was the plaintiff. Pt. Ram Narain Sharma was defendant no.1 (he was already expired prior to filing of the appeal). The respondents no.2 to 6 were defendants no.2 to 6. The respondents no.7 to 9 were defendants no.8 to 10. The appellant and respondents are respectively referred in this Judgment according to the original status before the Ld. Trial Court. The appellant/defendant no.7 was dissatisfied with the Judgment and Decree dated 20.09.2014 passed by the Ld. Trial Court. The Ld. Trial Court has dismissed the suit of plaintiff.

2. The deceased defendant no.1/respondent no.1 had filed a Suit for Permanent Injunction and Rendition of Account against the defendants, inter­alia on the following facts that:­ (A) Properties bearing no. 867 (old), 2353, 2354 & 2355 (New), situated at Dharam Pura, Delhi­110006 and its adjoining property no. 868 (old), 2484 (New), Nai Wara, Delhi­110006 (hereinafter referred to as the Naiwara RCA Nos. 31, 32 and 33/2016 Page ­ 12 of 102

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Properties) were inherited by Pt. Lakshmi Narain and his brother Pt. Jagan Nath from their ancestors. Pt. Ram Narain (defendant no. 1), son of Pt. Lakshmi Narain, had married thrice. From his first wife, six sons were born, i.e. the plaintiff and defendants no. 2 to 6. From his second marriage, defendant no. 7 was born and from his third wife, who is defendant no. 8, two sons i.e. defendants no 9 and 10 were born. The defendants no. 5 and 6 are married sisters of the plaintiff and are residing with their in­laws.

(B) Property no. 2484 was let­out to the tenants and it is still in occupation of the tenants. Some portions of the properties nos. 2353, 2354 and 2355, Dharampura are in occupation of the plaintiff and defendants no. 1­ 4 and 7 - 10. Some portions of the said property are in occupation of family of Pt. Jagan Nath while some shops are in occupation of the tenants.

(C) The rent from this branch of Joint Hindu Family was being realized by Pt. Lakshmi Narain till his death in 1966. After his death, the rent is being realized by defendant no.1. The defendant no.1 had been realising the income of joint Hindu family properties after the death of Pt. Lakshmi Narain, but he has been misappropriating the same exclusively for himself and RCA Nos. 31, 32 and 33/2016 Page ­ 13 of 102

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defendants no. 8, 9 and 10. The defendant no.1 had married defendant no. 8 twenty­five years back and since then, his behaviour with defendants no. 2­7 and the plaintiff has been very indifferent and he had not been maintaining them. He has devoted his sole attention to defendant no. 8 and her children i.e. defendants no. 9 and 10.

(D) The plaintiff is in occupation of a portion of property no.

2354 and of Baithak bearing no. 2353 on the ground floor. The Baithak is used by the plaintiff and is in his exclusive possession.

(E) Out of the funds of Joint Hindu Family property, the defendant no.1 constructed a house bearing no. 19, New Krishna Nagar, near Radhey Puri, Delhi­110051, benami in the name of defendant no. 8. Since the property at Krishna Nagar was acquired out of the income of Joint Hindu Family property, it is also a joint Hindu family property of the plaintiff and the defendants. The defendant no.1 had fallen out with the plaintiff and defendants no. 2­7 and is residing with defendants no. 8­ 10 at the Krishna Nagar property. The relationship between the plaintiff and defendants no. 2­ 7 on one hand and defendants no. 1, 8 and 10 on the other hand are highly strained.

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(F) The defendant no.1 wishes to dispossess the plaintiff from the Baithak and for this purpose, on 22.10.1977, he came to premises no. 2353 when the plaintiff was in his office and in his absence, he broke open the locks of the plaintiff and threw away his foods and put his own lock on the Baithak. Regarding this, a criminal complaint was filed under Sections 145, 146 Cr.P.C. against defendant no.1 in the Court of SDM, Delhi. (G) The defendant no.1 is not the absolute owner of the properties no. 2353, 2354 & 2355, Dharampura and 2484, Naiwara and the plaintiff as well as defendants no. 2 - 7 also have right, title and interest in the same being members of joint Hindu family property. The defendants no. 1, 8 and 10 are planning to dispose of the property in Krishna Nagar. Hence, the plaintiff's right to enjoy the above said properties has been threatened. Also, the defendant no.1 has not even rendered the accounts of rent realized by him in respect of the said properties. The defendants no. 2­7 are only proforma defendants.

(H) The plaintiff has prayed for the following reliefs:­

(i) Decree for perpetual injunction restraining the defendant no.1, his agent/ servants from selling, disposing, letting or otherwise parting with the RCA Nos. 31, 32 and 33/2016 Page ­ 15 of 102

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possession of any portion of Joint Hindu Family properties bearing no. 2353, 2354 & 2355, Dharampura & 2484 Nai Wara and defendants no. 1, 8, 9 & 10 be further restrained from selling off or parting with possession in any manner of property no. 19, Krishna Nagar and

(ii) Decree for rendition of accounts be passed in favour of plaintiff against defendant no.1 and after going into the unsettled accounts, a decree for the amount actually found due be also passed in favour of the plaintiff against the defendant.

3. The defendants/respondents no. 1, 8, 9 and 10 have filed the Written Statement inter­alia on the following facts:­ (A) The plaintiff has not given the correct pedigree table in their plaint. It has been denied by this set of defendants that the properties in question are ancestral properties. They have denied that the properties in question were inherited by Pt. Lakshmi Narain and Pt. Jagan Nath from their ancestors and contended that it was inherited through their mother. They did not deny that defendant no.1 is realising rent from those properties and spending the same on his wife and children but only after meeting the expenses, taxes and expenses of the temple. It has been denied that defendant no.1 is not spending money RCA Nos. 31, 32 and 33/2016 Page ­ 16 of 102

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on defendant no. 2­7. It has been contended that defendants no. 2­7 themselves are earning quite well. In fact, it was defendants no. 2­7 and the plaintiff, who had started neglecting the defendant no.1. It has not been denied that plaintiff is in possession of a room on second floor of house no. 2354. However, it has been denied that he is in possession of Baithak no. 2353 and contended that it has always been in possession of defendant no.1.

(B) The defendants have denied that house on plot no.19, New Krishna Nagar was constructed by defendant no.1 out of the income from Joint Hindu Family properties. In fact, the said property was gifted to defendant no. 8 by one person Durga Das and the defendant constructed three rooms, one bathroom, kitchen and toilet thereupon out of her own funds. It has been averred that defendant no. 8 is the sole and absolute owner of property at Krishna Nagar and it is not a joint Hindu family property. It has been contended that there was no family income and income from rent of properties was not enough for construction. The income was only Rs.140/­ per month, out of which taxes were paid, repairs were made and expenses of temple were met.

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(C) It has been further contended that defendant no.1 is absolute owner of property mentioned in para no. 23, which he had acquired by way of Will of his father Lakshmi Narain dated 06.03.1950 and which was duly registered on 27.03.1950. The defendants have denied that they had broken open the locks of the Baithak on 22.10.1977 or on any other date.

(D) Written Statement was also filed on behalf of defendants no. 2 ­7, wherein, they have denied that the Naiwara properties were inherited by Pt. Lakshmi Narain and Pt. Jagan Nath. It has been contended by this set of defendants that the properties are known as Naiwara Temple and the properties attached to it and had come to the possession of Lakshmi Narain and Jagan Nath as Pujaris from their maternal grandfather Pt. Chaturbhuj. It has not been denied that the property is in occupation of the plaintiff, defendants no. 1­7 and defendants no. 8­

10. The tenants are also in occupation of certain portions. It has been admitted that Pt. Lakshmi Narain was realising rent from these properties till 1966 and thereafter, defendant no.1 has been realising the rent. They have further admitted that defendant no.1 is misappropriating the funds for use of defendants no 8 ­10 and himself. They admitted that defendant no.1 has RCA Nos. 31, 32 and 33/2016 Page ­ 18 of 102

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not spent any part of the income from the temple on the plaintiff and defendants no. 2 to 7.

(E) The defendants have denied that plot no. 19, Krishna Nagar is a Joint Hindu Family property. It has been contended that the said property was gifted for construction of a temple and the temple thereupon was constructed out of the funds and income of the Naiwara temple and property attached to it. Hence, property no. 19, New Krishna Nagar is also a temple. The idols of Bhagwan Krishanji and Radhaji are installed in the said temple and the dedication is absolute and complete. They have not denied that the defendant no. 8 has no independent source of income and did not have funds for construction of any property. It has been admitted that construction, if any, in the name of defendant no. 8 is a Benami one.

(F) It has been admitted that the properties at Naiwara and Dharampura are in danger of being disposed of or let out. It is averred that defendant no.1 is not the owner of the Naiwara property. They have averred that defendant no.1 has illegally converted a portion of the temple property into commercial premises and is realising the income therefrom. It has been averred that defendant no.1 has dissipated, wasted and damaged the said RCA Nos. 31, 32 and 33/2016 Page ­ 19 of 102

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temple and properties and is threatening to convert the other properties of the same into commercial premises. They admitted that defendant no.1 has not rendered the account of the income from the properties to the plaintiff.

4. The plaintiff filed replication to the written statement filed by the defendants, wherein he has denied the version of the defendants and reiterated his contentions. The plaintiff has denied that the property no. 19 was gifted to defendant no. 8 by one person Durga Dass. He has denied that construction on plot no. 19 was done by defendant no. 8 and claimed that she never had any independent source of income and sufficient funds to make any construction. He denied that the income from the abovesaid properties is only Rs.140 per month and contended that it is more than Rs.280/­ per month. He denied that defendants no. 1 and 8 to 10 are residing in Naiwara, Dharampura properties.

The plaintiff has further denied that Pt. Lakshmi Narain had acquired the property from his maternal grandfather. He has averred that Pt. Lakshmi Narain's mother had died in 1916 and she had interest in the property only as a limited owner and not absolute owner. Hence, the property could not have devolved upon her legal heirs as she was not the absolute owner of the same. He has averred that the Will RCA Nos. 31, 32 and 33/2016 Page ­ 20 of 102

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dated 06.03.1950 is illegal and void, which is neither executed nor attested in accordance with law. Even otherwise, as on 06.03.1950, defendant no.1 was the only legal heir of his father to inherit his properties and hence, there was no requirement for execution of any Will.

REGULAR CIVIL APPEAL NO. 32/2016 TITLED SURESH NARAIN SHARMA VERSUS RAJ NARAIN SHARMA IN SUIT NO. 385/10/78 TITLED AS RAJ NARAIN SHARMA VS. RAM NARAIN SHARMA & ORS.

The appellant was defendant no. 7, respondent no.1 was the plaintiff. Pt. Ram Narain Sharma was defendant no.1 (he was already expired prior to filing of the appeal). The respondents no.2 to 6 were defendants no.2 to 6. The respondents no.7 to 9 were defendants no.8 to 10. The appellant and respondents are respectively referred in this Judgment according to the original status before the Ld. Trial Court. The appellant/defendant no.7 was dissatisfied with the Judgment and Decree dated 20.09.2014 passed by the Ld. Trial Court. The Ld. Trial Court has dismissed the suit of plaintiff.

REGULAR CIVIL APPEAL NO. 33/2016 RAJ NARAIN SHARMA VERSUS MAHESH NARAIN SHARMA IN SUIT NO. 385/10/78 TITLED AS RAJ NARAIN SHARMA VS. PRAKASH NARAIN SHARMA & ORS.

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The appellant was plaintiff. Pt. Ram Narain Sharma was defendant no.1 (he was already expired prior to filing of the appeal). The respondents no.1 to 9 were defendants no.2 to 10 respectively. The appellant and respondents are respectively referred in this Judgment according to the original status before the Ld. Trial Court. The appellant/plaintiff was dissatisfied with the Judgment and Decree dated 20.09.2014 passed by the Ld. Trial Court. The Ld. Trial Court has dismissed the suit of plaintiff.

The brief facts of Suit no. 385/10/78 inter­alia on the following facts :­ (A) The plaintiff Raj Narain had contended that in the year 1917, Pt. Jagan Nath and Pt. Lakshmi Narain had filed a suit against Shyam Sunder and Shri Ram, who were minor children of Raghbar Dayal, for declaration that Naiwara temple and the property attached to it was their exclusive property. The matter was referred to the Arbitrator. Since there was difference of opinion between the Arbitrators, the matter was decided by Sh. Babu Mal, Umpire. He passed the Award dated 12.01.1920, wherein, it was declared that Pt. Jagan Nath and Pt. Lakshmi Narain were the Pujaris of temple in Naiwara. The Award was made a ruling of the Court and decree was passed in terms of the said Award on 21.01.1920. Sh. Shyam Sunder and Shri Ram filed a suit in the year 1932 for getting the said decree annulled, however, RCA Nos. 31, 32 and 33/2016 Page ­ 22 of 102

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the same was dismissed and hence, the decree dated 21.01.1920 was confirmed.

(B) On the last date of Ram Leela, the Ram Leela celebrations/procession terminates at the Naiwara temple. Hence, the Naiwara properties cannot be treated as self­ acquired or separate property and no one has any right to transfer the same in any manner and the property exclusively vests in the God.

(C) The plaintiff Raj Narain has also contended that the Will of Pt.

Lakshmi Narain dated 06.03.1950 in favour of defendant no.1 is illegal as he had no right to make Will in respect of the temple. His contentions with respect to property at Krishna Nagar are same as that of the defendants no. 2­7 in the present suit.

(D) The reliefs prayed by the plaintiff Raj Narain are as follows:­

1. Decree for declaration in favour of plaintiff that the properties at Dharampura, Naiwara are temple properties and are inalienable.

2. Decree for declaration that property at New Krishna Nagar is also a temple and not alienable in any manner.

3. Decree for perpetual injunction against defendants no.

1, 8 and 10 restraining them from disposing off the said temple and the properties attached to it in any manner either by sale, gift, Will or otherwise and restraining RCA Nos. 31, 32 and 33/2016 Page ­ 23 of 102

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them from parting with possession of the property or any portion thereof.

4. Decree of rendition of account against defendant no.1 in respect of income from Naiwara temple and property attached to it for last three years from the date of institution of the suit and on taking unsettled amount, a decree for amount due be also passed in favour of the plaintiff.

(E) The defendants no. 1, 8, 9 and 10 had filed the Written Statement on the same lines as Written Statement filed in the Suit no. 391/10/77. It has been admitted that in the year 1917, one suit was filed by Pt. Jagan Nath and Pt. Lakshmi Narain for declaration that Naiwara properties were the exclusive properties of Lakshmi Narain and Jagan Nath. However, it has been denied that the Arbitrator had held that Naiwara property as temple. The Naiwara properties were only described as temple to distinguish the same from Parade Ground temple by the Arbitrator. Further, the word "temple" was only being loosely used by the Arbitrator and it did not mean that the temple, in any way, was a religious endowment or temple meant for the benefit of the public at large. As per the Order of Hon'ble High Court of Lahore, Lakshmi Narain and Jagan Nath were the exclusive owners of the property and other branches of the family were not given any share in the RCA Nos. 31, 32 and 33/2016 Page ­ 24 of 102

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Naiwara temple. The question, whether the Naiwara temple was a private property or that plaintiffs were Pujaris in the same was not the subject matter of Arbitration and the Arbitrator was never called upon to decide as to who was the Pujari or what was the nature of the possession of plaintiffs qua the Naiwara temple. The only declaration sought was that the minor children of Raghbar Dayal had no right in Naiwara temple as their father had been adopted in another family and the Arbitrator had given his decision to that effect only. (F) It has been admitted that the suit filed by sons of Raghbar Dayal was dismissed and the decree of 1920 was upheld. The Hon'ble High Court has reaffirmed in the second appeal that they were entitled only to a share in the Parade Ground temple offerings and nothing else. It has been denied that procession of the Ram Leela used to terminate at Naiwara temple. Only the participants in the Ram Leela were brought to the Naiwara house where Aarti was offered and participants feasted, as a mark of respect, however, no general public was allowed. It has been denied that there was any dedication of the property at Naiwara to the idol of Bhagwan Lakshmi Narain. The property is still in the name of defendant no.1 and grandchildren of Jagan Nath in the municipal records. The tax is also being paid by them. It is denied that defendant no.1 had no right to transfer the property. Even RCA Nos. 31, 32 and 33/2016 Page ­ 25 of 102

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the ancestors of defendant no.1 had treated the Naiwara property as their personal properties and now, they cannot be called as endowed properties whether public or private. (G) The Will executed by Pt. Lakshmi Narain is a valid and binding document. Also, the plaintiff had never challenged the Will of Pt. Lakshmi Narain for all these years and now, he cannot challenge the same. The defendant no.1 is recovering all the rent being sole owner of the property and is entitled to use the same in any manner whatsoever.

(H) In the additional pleas, it was contended that there was no property attached to any temple in Naiwara. There is only one property in which the idol is installed in a portion and the rest of it is being used for the residence of plaintiff by the defendants and also by the widow of Ram Nath. Pt. Jagan Nath had made a Will in favour of his adopted on Sram Nath, who in turn made a Will in favour of his two sons. (I) Separate Written Statement was filed by defendant no.4 Mahesh Narain, who is the plaintiff in Suit no. 391/10/77, who has averred that though, it is correct that property at Naiwara was inherited by Lakshmi Narain and Jagdish Nath after the death of Pt. Chaturbhuj, however, it had passed in the capacity of ancestral properties and as such, these are joint Hindu family properties. Pt. Lakshmi Narain was never the exclusive owner of the property. He had denied that the RCA Nos. 31, 32 and 33/2016 Page ­ 26 of 102

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temple is a private property and contended that it is a joint Hindu family property and hence, Pt. Lakshmi Narain had no right to transfer it further. He has also contended that property at Krishna Nagar is also a joint Hindu Family property.

(J) Vide Order dated 19.10.1978, the Suit no. 391/10/77 was consolidated with Suit no. 385/10/78 and it was decided that common evidence was to be recorded in Suit no. 391/10/77 and it was to be read for the purpose of other suit also. After consideration, the following issues were framed by the Ld. Trial Court:­

5. ISSUES

1. Whether the suit properties are joint Hindu Family properties? OPP.

2. If issue no. 1 is not proved, whether defendant no.1 is the absolute owner of property situated at Naiwara, Delhi? OPD­1.

3. If issue no.1 is not proved, whether defendant no.8 is the owner of the property and land of the house at Krishna Nagar as alleged in the WS? OPD­8

4. Whether the properties situated at Naiwara are the Naiwara temple and properties attached to it and are endowed properties? OPD2­7.

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5. Whether the property at Krishna Nagar is an endowed property in the form of a temple? OPD 2 ­7

6. Whether the plaintiff is entitled to injunction prayed for?

OPP.

7. Whether the plaintiff is entitled to rendition of account? If so, from which of the defendants and for what period? OPP

8. Whether the suit is within time? OPP.

9. Whether the plaintiff is not not valued properly for purpose of court fees? If so to what effect? OPP.

10. Relief.

6. PLAINTIFF'S EVIDENCE In order to prove, the plaintiff's side got examined five witnesses.

Sh. Mahesh Narain was examined as PW­1 who tendered his evidence by way of affidavit and relied upon the following documents:­

a) Ex. PW1/1 was Site Plan of properties no. 2353 and 2354.

b) Ex.PW1/2 was the Site Plan of property no. 2484.

c) Ex.PW1/3 was the certified copies of electoral roll.

d) Ex.PW1/4 and Ex.PW1/5 were the negatives of the photographs Ex.PW1/5 and Ex.PW1/6.

e)    Mark Z is one more photograph.


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f) Ex. PW1/7 and Ex.PW1/8 were the certified copies of municipal records showing old numbers and new numbers of the properties.

During cross­examination, the marriage cards were exhibited as Ex.PW1/D1 to Ex.PW1/D7.

7. DEFENDANTS' EVIDENCE To disprove the case of the plaintiff, defendant no. 10 was examined as DW­1, who tendered his evidence by way of affidavit and he relied upon the following documents:­

1. Certified copy of Will of father of defendant no. 10 was Ex.DW1/1.

2. Certified copy of Will of Pandit Lakshmi Narain was Ex.DW1/2.

3. House Tax Bill was Ex.DW1/3.

4. Payment receipts for house tax were Ex.DW1/4.

5. Water and electricity bills were Ex.DW1/5.

6. The receipts of purchase of building material were Ex.DW1/10 to Ex.DW1/11.

7. Certified copies of Orders of Hon'ble High Court were Ex.DW1/13 and Ex.DW1/14.

8. House tax bills were Ex.DW1/15 and Ex.DW1/16.

9. Posters of Ramleela were Ex.DW1/17 and Ex.DW1/18.

10. Letters received by father of witness were Ex.DW1/20 and Ex.DW1/21.

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11. The cards of house warming ceremony were Ex.DW1/22 and photographs were Ex.DW1/22 to Ex.DW1/30.

The defendants further examined Sh. Pankaj Sharma as DW­2, Sh. Kailash Nath Sharma as DW­4 and Sh. Ram Kishan Sharma as DW­5.

The defendants further examined the following summoned witnesses:­

1. Sh. A. Rehman, UDC from the Office of Sub­Registrar­I, Kashmiri Gate, Delhi as DW­3, who brought the record of registration of Will of Pt. Laxmi Narain, S/o Pt. Niranjan.

2. Sh. Ramesh Chander, L.D.C. from the Office of Sub­ Registrar­II, Kashmiri Gate, Delhi as DW­6.

3. Sh. Jai Narain, Sub­Registrar­II, Sub­Registrar's Office, Janak Puri, New Delhi as DW­7, who proved the copy of Index as Ex.DW7/1 (OSR) and certified copy of Gift Deed as Ex.DW7/2.

8. The Ld. Trial Court passed the common impugned Judgment and decree dated 20.09.2014, whereby, the both suits were dismissed. The appellant has sought to set aside Judgment and decree 20.09.2014 and praying for decreeing the suit inter­alia on the following grounds and the same are also more or less the arguments of the appellant/plaintiff:­ RCA Nos. 31, 32 and 33/2016 Page ­ 30 of 102

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(A) The impugned judgment of Ld. Trial Court holding that the properties at Naiwara and Krishna Nagar are the personal properties are against the facts of the case as well as law applicable thereto.

(B) The Ld. Trial Court erred while deciding issue no.1 that the property at Naiwara are owned by Pt. Laxmi Narain as separate and that he was competent to execute the Will dated 06.03.1950 (Ex.DW­1/2) in favour of Pt. Ram Narain. Pt. Laxmi Narain was not the sole and absolute owner of Naiwara properties and he was only Pujari of the temple and was, thus, not at all competent to transfer the same to any one or disinherit any one as per his wish by executing the alleged Will in favour of his only son (remaining after adoption of the other two) Pt. Ram Narain. Even Smt. Brij Rani was not the owner of Naiwara temple property and her husband was Pujari. (C) The Ld. Trial Court erred in arriving at the conclusion without any evidence of document on record that the Naiwara property was secular and alienable in the hands of Smt. Brij Rani as the same is already admitted and described as temple and property attached to it by the predecessors of the parties during the previous litigations ensuing from civil suits of 1917 and 1932, wherein, the joint possession of Naiwara Temple, share RCA Nos. 31, 32 and 33/2016 Page ­ 31 of 102

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in its service and offerings as well as rental income from the property attached to it had been contested in the dispute. The Ld. Trial Court erred in ignoring the distinction between ownership of secular property and rights of heirs in a temple founded by their ancestor. (D) It was an error of judgment on the part of Ld. Trial Court to hold that the Naiwara property was separate property of Pt. Laxmi Narain. Had it been so, the same would have been case with (Late) Raghbar Dayal also and Hon'ble High Court of Punjab at Lahore would not have set aside the judgment of the then Ld. ADJ S. Kartar Singh on the issue of limitation and remanded the suit of S/Shri Sham Sunder and Siri Ram to the Ld. Court of ADJ Mr. G.S. Mongia for ascertaining the issue of adoption of Raghbar Dayal implying thereby that none of the heirs of Sh. Chaturbhuj held a defined share of the Naiwara property as separate on his own and that the properties are endowed and not secular and alienable. In the case of such a Hindu religious endowment, only the usufructs thereof can be Joint Hindu Family property subject to certain duties and not the property itself in its entirety. The contesting defendant in his testimony as DW­1 admitted that the RCA Nos. 31, 32 and 33/2016 Page ­ 32 of 102

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Naiwara properties are not the self­acquired properties of Laxmi Narain and Jagan Nath.

(E) The Ld. Trial Court erred in holding that the property bearing no. 19, New Krishna Nagar is personally owned by defendant no.8/ Smt. Kanta.

(F) The Ld. Trial Court erred in deciding issue no.2 holding that Pt. Ram Narain was the absolute owner of Naiwara property and failed to appreciate that his father Pt. Laxmi Narain himself was not the absolute owner of the property at Naiwara and thus, was not in a position of authority to make any such impugned Will, as allegedly executed on 06.03.1950 as per his wish. Without prejudice to the rights of appellant, the same is the case with the other impugned Will allegedly executed on 20.01.1995 by Ram Narain himself (Ex.DW­1/1). (G) The Ld. Trial Court failed to appreciate that the alleged Will dated 06.03.1950 (Ex.DW­1/2) has not been proved in accordance with law. Despite the findings of Ld. Trial Court that no attesting witness of the Will (Ex.DW­1/2) has been proved, the Ld. Trial Court relied upon the testimony of DW­4. It is significant that neither alleged original Will of Pt. Laxmi Narain was filed on record nor the same was proved as per law. Mere examination of a witness from the Office of Sub­Registrar does not RCA Nos. 31, 32 and 33/2016 Page ­ 33 of 102

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dispose with the proof of a valid Will. It is well settled proposition of law that even if the probate is obtained in respect of any alleged Will, merely the same would not decide the title or the existence of the property devised under the Will (1962 SCR Supl. (3) 294; (2003) 2 MLJ

475).

(H) The Ld. Trial Court erred in holding that defendants no.

2 to 7 failed to prove the issues no. 4 and 5. It is manifest in the records that by their nature, the suit properties are endowed and the Ld. Trial Court ought to have held that the property at Naiwara, viz. Temple and property attached thereto as well as property at 19, New Krishna Nagar are endowed properties, particularly, as it was so admitted by defendants no. 1 and 8 to 10 themselves and thus, even as per admission of the said defendants, it is endowed temple property. Moreover, when the certified copies of judgments and decree dated 21.01.1920 with the said Award of umpire were produced by the said contesting defendants, which had not been disputed by any of the parties, no further evidence was required. It is noteworthy that the impugned Will dated 06.03.1950 (Ex.DW­1/2) allegedly proved by DW­1 also exclusively relies on the Award and decisions of previous litigations only to define/ claim the RCA Nos. 31, 32 and 33/2016 Page ­ 34 of 102

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descendants and extent of his estate by the testator Laxmi Narain with respect to the Naiwara property. The said Award operates as res­judicata bu the Ld. Trial Court seriously erred in not taking into consideration that the said Award operates as resjudicata between the parties thereto as well as binding upon the their successors­in­interest too.

(I) The Ld. Trial Court erred in going into an issue which was never framed to the effect that whether the suit property is a public temple. The Ld. Trial Court erroneously relied upon the various case law judgments, whereas, not considered the other citations/ judgments, which were relevant for decision of these issues besides the facts thereof.

(J) The Ld. Trial Court erred in observing that defendants no. 2 to 7 have not led any evidence. The decree dated 21.01.1920, by which the Award dated 16.10.1919 was made rule of the Court, was not even disputed by any of the parties and it was categorically held in the Award that Pt. Jagan Nath and Pt. Laxmi Narain were only Pujaris of the Naiwara temple and thus, Pt. Laxmi Narain had no authority to execute any such alleged Will in respect of the property of Naiwara. The alleged Will dated 06.03.1950 (Ex.DW­1/2) in any case exclusively RCA Nos. 31, 32 and 33/2016 Page ­ 35 of 102

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relies on the said Award and decree besides the judgment of the then Ld. ADJ, Mr. G.S. Mongia dated 10.03.1939 holding the same as resjudicata and the Ld. Trial Court erred in deciding the suit in conflict with the said decree/ award and related previous judgments of higher Courts.

(K) The Ld. Trial Court erred in holding, while deciding issue no.3 that defendant no.8/ Smt. Kanta became the sole and absolute owner of property at 19, New Krishna Nagar by virtue of Gift Deed intended for religious charity. Smt. Kanta had no income of her own and construction was raised on the land at New Krishna Nagar and idols installed and that land was received in charity for a temple and thereafter, the construction was raised form the income of to her temple property, no other source of funds being proved as available to herself by the defendant/ Smt. Kanta.

(L) Ld. Trial Court erred in para no. 87 of the impugned judgment that in the case at hand, it is admitted fact that the properties at Naiwara have been inherited by Laxmi Narain and Jagan Nath from their mother Smt. Brij Rani, who had inherited it from Pt. Chaturbhuj. The appellant had never admitted such fact and on the other hand, categorically submitted that they were merely RCA Nos. 31, 32 and 33/2016 Page ­ 36 of 102

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Pujaris of the temple at Naiwara, as is apparent from the Award itself implying only entitled to limited rights appurtenant to their obligations towards the temple and preservation thereof.

(M) Ld. Trial Court erred in para 116 of the impugned judgment in making observation that the pamphlet (Ex.DW­1/17, Mark X), it had been clearly mentioned that Naiwara temple was the private temple of Pt. Ram Narain. The said pamphlet was issued by Late Sh. Jagan Nath and Laxmi Narain as early as on 29.09.1933 during the time they were having litigation against Sham Sunder & Siri Ram and nowhere mentions Pt. Ram Narain. The pamphlet clearly shows the lineage of priests in the family of Sh. Chaturbhuj and the nature of property at Naiwara as a temple where religious feast is hosted by eminent public persons upon culmination of annual Ramlila Celebration procession at the Naiwara temple wherein, the rights of puja/ sewa had been awarded to Pt. Jagan Nath and Laxmi Narain to the exclusion of Raghbar Dayal due to his adoption vide decree dated 21.01.1920.

(N) Ld. Trial Court erred in para no. 117 of the impugned judgment that the Award of Sh. Babu Mal or the judgment of Shri G.S. Mongia, the then Ld. ADJ, Delhi RCA Nos. 31, 32 and 33/2016 Page ­ 37 of 102

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have no implications on the present case. Not only are these judgments expressly relied upon in the alleged Will (Ex.DW­1/2) but there is also an apparent error committed by the Ld. Trial Court in misreading of the Award. In the Award itself, Pt. Jagan Nath and Laxmi Narain were not held as owners of Naiwara temple property but only Pujaris thereof, although, they had claimed exclusive ownership of the entire property. It is well settled law that a title suit for possession has two parts - first, adjudication of title and second, adjudication of possession. The previous statement of facts in his own suit cannot be controverted or overridden in the claims of ownership made by Laxmi Narain in the alleged Will dated 06.03.1950, wherein, he relies on the said previous judgments.

(O) The Ld. Trial Court erred in holding that Smt. Kanta/ defendant no. 8 is the owner of 19, New Krishna Nagar property. Smt. Kanta did not appear as a witness to prove her alleged claims nor she appeared for being examined as respondent in the pending connected contempt matter no. M­20/10 despite the Order of Ld. Court to appear in the witness box. Even in the Gift Deed, it is clearly mentioned that the gift of land is in charity for temple. The donation of land was for a RCA Nos. 31, 32 and 33/2016 Page ­ 38 of 102

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private temple does not make it any less an endowment. She miserably failed to prove that the construction was made on the said land at Krishna Nagar out of her own funds. She is not entitled to her defence on the grounds of equity as well in view of her conduct in violation of restraint order and not purging herself of contempt charges, hence, adverse inference ought to have been drawn against her by the Ld. Trial Court.

(P) The Ld. Trial Court erred in its findings regarding dedication without probing the contents of Sale Deed dated 25.10.1865 in respect of Naiwara property (certified copy on record is in Urdu). The translation of any Urdu document was not submitted by defendant no.10/Ajay Narain despite of Court's Order dated 30.03.2011 giving him one last opportunity to do so on the next date of hearing 14.05.2011. The typed translation of the original Sale Deed (in Urdu) dated 25.10.1865 alongwith Receipt dated 26.10.1865 which were in possession of defendants no. 1 & 8 to 10 were submitted to the Ld. Judge by the said defendant/ Ajay Narain in another connected case on 14.05.2011 instead of the present matter.

9. In the aforesaid background, the following points for determination arise for the consideration of the present case:­ RCA Nos. 31, 32 and 33/2016 Page ­ 39 of 102

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i) Can the order under question be termed as perverse, capricious and arbitrary?

ii) Does the impugned order run against the legal framework operating in and principles enunciated in this sphere?

iii) Does determination of point for determination no.1 or 2 warrants any indulgence or interference of the present Court with the order appealed against?

iv) What order?

QUESTION OF MAINTAINABILITY OF APPEALS FILED BY SHRI SURESH NARAIN IN BOTH THE SUITS The first question which was raised by contesting respondent no.9/defendant no.10 that Appeals filed by Shri Suresh Narain would not be maintainable as Shri Suresh Narain was the defendant no.7. It is further argued that he has nowhere claimed any relief either in the suit filed by Shri Mahesh Narain or in the suit filed by Shri Raj Narain and he was only defendant no.7. The Ld. Counsel for contesting defendants/respondents has relied upon AIR 1978 M.P. (GWALIOR BENCH) 20.

The Ld. Counsel for appellant has argued that the set of defendants 2 to 7 have opposed the flawed contention of the plaintiff/Mahesh Narain in his suit that the suit properties are ancestral and joint Hindu family properties, because the same fails to distinguish between the proprietary rights accruing to the RCA Nos. 31, 32 and 33/2016 Page ­ 40 of 102

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holders of the religious office which are ancillary to their duties versus the ownership of the temple and it's properties per se which vest in the deities as per the Hindu Law. The defendant no.7 is supporting the version which was raised by plaintiff Raj Narain Sharma in his Suit.

FINDINGS AND CONCLUSIONS OF THE COURT The Ld. Trial Court was determining the question pertaining to the nature and character of the properties in question i.e. whether the Naiwara Property, which consists of Temple and the property attached thereto and Krishna Nagar Property were 1) self­ acquired property; or 2) the same was joint family property; or 3) the same was public temple or private temple. The said questions, which were determined by the Ld. Trial Court, would definitely going to affect the right, title and interest of each and every party, whether the plaintiff or the defendants of the suit. The findings of the Ld. Trial Court would also amount to res­judicata for defendant no.7 in subsequent proceedings.

No doubt, the appellant would not be entitled to final relief of the suit, which was claimed either by the plaintiff i.e. Mahesh Narain Sharma or the suit filed by Shri Raj Narain as the said reliefs were not at all claimed by Shri Suresh Narain in the said suits, but the findings of Ld. Trial Court, which determine the character and nature of the suit properties, would definitely affect the rights of Shri Suresh Narain as he may claim the relief against RCA Nos. 31, 32 and 33/2016 Page ­ 41 of 102

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the other parties in future in subsequent proceedings. It is also worthwhile to note that although, Shri Mahesh Narain Sharma or his LR's had not filed the Appeal, but LR's of Shri Raj Narain Sharma had filed the Appeal in respect of the suit, which was filed by Sh. Raj Narian Sharma. Either LRs of Shri Mahesh Narain Sharma or LRs of Raj Narain Sharma have nowhere objected to filing of the Appeal by Shri Suresh Narain Sharma and it is the contesting defendants/respondents, specifically respondent no. 9, who has been objecting the same.

The citation/Judgment, as relied upon by the respondent no.9, is not at all applicable to the facts and circumstances of the present case. Firstly, the said case pertains to the suit for recovery, which was dismissed. Secondly, as per the findings in the said case, the determination by the Ld. Trial Court would not operate res­judicata and the appellant of the said case would not be estopped from challenging the findings in any subsequent proceedings. In the present case, the character and nature of the suit properties were decided. At the cost of reiteration, the same would amount to res­judicata against defendant no.7 and may adversely affect the right, title and interest in future litigations, if any, to be brought by defendant no.7/appellant. This Court has otherwise to adjudicate the Appeal of Shri Raj Narain Sharma and the suit of Shri Raj Narain Sharma was consolidated with the suit of Shri Mahesh Narain Sharma.

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Considered from any view point, the Appeals filed by Shri Suresh Narain Sharma are maintainable, however, even if the findings come in favour of the Shri Suresh Narain Sharma, still he will not be entitled to any final relief in the suits, as claimed by Shri Mahesh Narain Sharma and Raj Narain Sharma, as the said reliefs were claimed by them and not by Shri Suresh Narain Sharma in the suit.

ON THE QUESTION WHETHER APPEAL FILED BY LR'S SHRI RAJ NARAIN IS BARRED BY THE PRINCIPLES OF RES­ JUDICATA AS THEY HAVE NOT FILED SEPARATE APPEAL CHALLENGING THE JUDGMENT PASSED IN THE CASE OF SH. MAHESH NARAIN SHARMA The Suit no. 391/10/77 was filed by Shri Mahesh Narain Sharma and thereafter, Shri Raj Narain Sharma has filed Suit no.385/10/78. The Suit no.385/10/78 was consolidated with Suit no.391/10/77 and it was observed that the entire evidence would be led in the case of Suit no.391/10/77 and the same would be read for the Suit no.385/10/78. The Ld. counsel for respondent no.9 has argued that since the LR's of Raj Narain Sharma have not challenged the Judgment passed in Suit no.391/10/77, the findings of the same would amount to res­judicata and the Appeal filed by LR's of Shri Raj Narain Sharma in Suit no.385/10/78 is liable to be dismissed on the ground of res­judicata. The Ld. RCA Nos. 31, 32 and 33/2016 Page ­ 43 of 102

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Counsel for respondent no.9 has relied upon the Judgment of (2015) 3 SCC 624.

The facts & circumstances of the present case are totally distinguishable from the facts & circumstances of the judgment relied upon by respondent no. 9. The case, as relied upon by respondent no. 9, was in respect of the dispute between the landlord and tenant relationship. Moreover, the facts, which were pleaded by Sh. Mahesh Narain Sharma in his suit, are contrary to the facts, as pleaded by Sh. Raj Narain Sharma. Sh. Raj Narain Sharma has pleaded the inalienable character of the suit properties and Sh. Mahesh Narain Sharma has pleaded the joint family properties. Furthermore, Sh. Suresh Chand Sharma has challenged the judgment passed in the said case filed by Sh. Mahesh Narain Sharma. The appellant Suresh Chand Sharma has raised the similar pleas, which are raised by LRs of Sh. Raj Narain Sharma. The LRs of Sh. Raj Narain Sharma, who are the respondents in the said case, are supporting the appeal of Sh. Suresh Chand Sharma. The appeal can be filed separately or it can be supported in view of the cross­objections under Order 41 Rule 22 CPC. The cross­ objections are basically considered as challenged to the judgment passed in the case of Mahesh Narain Sharma. The Ld. Trial Court has passed the common impugned judgment and decree. The LRs of Sh. Raj Narain Sharma have also challenged the common impugned judgment and decree, resultantly, the findings of Ld. RCA Nos. 31, 32 and 33/2016 Page ­ 44 of 102

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Trial Court have been challenged in his appeal by LRs of Sh. Raj Narain Sharma which are also findings in Mahesh Narain's case. In view of the discussion made hereinabove, the principles of res­ judicata are not at all applicable as far as non­maintainability of the appeal filed by LRs of Sh. Raj Narain Sharma is concerned. The objection, as raised by Ld. counsel for the respondent no. 9, sans merit and the same is hereby rejected.

ON THE QUESTION OF NAIWARA TEMPLE AND THE PROPERTY ATTACHED TO IT ARGUMENTS OF THE APPELLANT RAJ NARAIN QUA NAIWARA PROPERTY

1. That Award of the Umpire, Sh. Babu Mal and Decree dated 21­01­1920 have been admitted to be binding upon the par­ ties and acted upon by the parties and their predecessors­in­ interest.

2. That the judgments of previous litigations placed on record by defendants no. 1 & 8 to 10 and admitted by all the parties, as noted in para no.104 of the impugned judgment, reveal undisputed facts related to the Naiwara properties and the lawful rights and obligations of the parties with respect to these properties.

3. That the properties at Naiwara comprise 'Temple with proper­ ties attached to it", is an undisputed fact everywhere in the previous judgments. There is no evidence anywhere that RCA Nos. 31, 32 and 33/2016 Page ­ 45 of 102

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these properties were secular and alienable, as alleged by de­ fendants no. 1 & 8 to 10 in their Written Statement dated 13­ 03­1978.

4. That Pt. Laxmi Narain was adjudged Pujari of Naiwara temple and his natural brother Raghbar Dayal was dis­entitled from this temple due to his adoption out of the family. It is submit­ ted, therefore, that the rights of Pujariship vest only within the family of Sh. Chaturbhuj and Smt. Brij Rani and are in­ alienable as a religious office to anyone else for pecuniary consideration.

5. It is submitted that more than the title of religious office of priesthood cannot pass on from Pt. Laxmi Narain to his suc­ cessors after his death because that would be violative of the principle of "Nemo plus juris ad alienum transferee po test quam ipse habet" ­ no one can transfer to another any greater right than he himself has". Merely relying on the alleged Will of Pt. Laxmi Narain cannot advance the case of defendants no. 1 & 8 to 10; even more so, as the alleged Will is only rely­ ing on the previous judgments which held him Pujari of the temple in question.

6. That there is no evidence that Sh. Laxmi Narain was at all aggrieved from the judgment declaring him Pujari. He is ad­ mitted to have acted upon the judgment during his lifetime. He sought no further legal remedy during his lifetime to ob­ RCA Nos. 31, 32 and 33/2016 Page ­ 46 of 102

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tain any superior title of ownership of the temple. Rather, he had defended the judgment during subsequent litigations when the Decree dated 21­01­1920 was reconfirmed and his suit of 1917 held res­judicata by Ld. ADJ Sh. G.S. Mongia on 10­03­1939. This judgment operates as estoppel against any re­agitation of the question of their rights and interest qua the Naiwara properties by any of the parties or their heirs as well.

7. That defendants no. 1 & 8 to 10 intentionally misinterpreted the previous judgments in a self­serving manner after all these years as they alleged, albeit wrongly, in their Written Statement dated 13­03­1978 that Pt. Jagan Nath and Laxmi Narain were held owners by Hon'ble Lahore High Court. The judgment passed by Hon'ble Justice Mr. M.V. Bhide only held that none of the co­heirs could be held to be entitled to any fractional share with respect to Naiwara temple property and accordingly, set aside the Decree passed by Ld. ADJ Sh. Kar­ tar Singh with remand for re­decision. It is to be noted that the property was held to be subject to joint­possession by the later judgment of Ld. ADJ Sh. G.S. Mongia as well.

8. That Pujaris and Archakas are meant to conduct the sewa puja of the deities and enjoy right of residence in the temple in that behalf besides availing the share in offerings and in­ come, as permissible by custom and usage for their liveli­ RCA Nos. 31, 32 and 33/2016 Page ­ 47 of 102

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hood. They are not owners, as wrongly alleged by defendants no. 1 & 8 to 10. It is to be noted that defendant no. 1 also ad­ mitted his obligation in that he is spending on maintenance of the temple & repairs of property.

9. In the case of Jamna Prasad Vs. State of M.P., decided on 17­04­2003, Hon'ble Justice Mr. A.M. Sapre of Hon'ble M.P. High Court observed as under:­ "There lies a difference between a Pujari of a temple and owner of temple. In former case a person is only there to take care of worship part of the deity having no power over the property itself. In other words, the property is never vested in the Pujari because he simply holds the office of Pujari. It goes with him".

10. That because the heirs of Sh. Chaturbhuj conducted puja and sewa by themselves and have been availing the benefits of it's income and offerings, in the same way as his only daughter Smt. Brij Rani did during her lifetime, the rights of Pujari and Shebaits reside together in them. [Dr. B.K. Mukherjea, in his Hindu Law of Religious and Charitable Trusts, 5th Ed. in para no. 5.3 on page 203].

11. It is submitted that only religious office descended upon the heirs of Chaturbhuj; because they were themselves conduct­ ing puja and sewa of the deities, being a family of priests, they were declared Pujaris of the Naiwara temple, implying they RCA Nos. 31, 32 and 33/2016 Page ­ 48 of 102

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were entitled to appropriate it's income and offerings, which constituted their joint family income and in the nature of movable property. The immovable properties of the temple, however, being endowed, remain vested in the deities as judi­ cial persona of ownership and inalienable according to law.

12. It is indisputably evident from the judgments of previous liti­ gations initiated in the year 1917 and 1932 that the claims re­ garding the income and offerings of Naiwara temple were made by both the opposing sides viz. Laxmi Narain and his brother and Sham Sunder and his brother; as such the same constitutes an undeniable fact.

13. In para 6.6 on page 249 of the 5th Edition of his "Hindu Law of Religious and Charitable Trusts, Dr. B.K. Mukherjea men­ tions 'that the Hindu law nowhere says that the offerings be­ come the property of the Shebait or Archaka; can be squan­ dered away by him or devoted to purpose foreign to the en­ dowment. The position in law, consequently, is that the offer­ ings that are made to the deity do become the property of the deity and the Shebait or Archaka, who claim the right to share in them, must prove affirmatively his right by evidence of us­ age'.

14. The daughter of Sh. Chaturbhuj namely Smt. Brij Rani is stated to have been doing sewa puja of the Naiwara temple and availing it's income during her lifetime. It is settled doc­ RCA Nos. 31, 32 and 33/2016 Page ­ 49 of 102

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trine that a woman is not disqualified by reason of her gender to succeed to the rights of a Shebait of an idol according to Hindu Law. When a woman succeeds as a Shebait, she takes like a Hindu female heir, a limited interest in the Shebaiti right; in the sense that after her death, the next male heir of the last Shebait succeeds to the office.

15. That in the case of Kali Kinkor Ganguly Vs. Panna Baner­ jee and Anr. on 16th August, 1974; [1975] 1 SCR, it was held that "Although Shebaiti right is heritable like any other property, it lacks the other incident of proprietary rights, namely, capacity of being freely transferred by the person in whom it is vested"....."that neither the tem­ ple, nor the deities, nor the Shebaiti right can be trans­ ferred by sale for pecuniary consideration".

16. That the Ld. Trial Court made a grave error in deciding the is­ sue no.2 in favour of defendant no. 1 without taking into con­ sideration the distinction between the rights of holders of reli­ gious office and absolute ownership rights, which entitles a person to dispose of the property in any manner he feels like. The former rights are limited and not absolute. Rights of the holders of religious office are inseparable and ancillary to their duties towards the deity in whom the ownership of the temple and it's properties vests. The impugned judgment, therefore, RCA Nos. 31, 32 and 33/2016 Page ­ 50 of 102

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not only contradicts the previous judgments and Decree, which is in operation as per law, but it is also contrary to the interest of the deities installed in the temple.

17. It is important to note that defendants no. 2 to 7 denied that the Naiwara properties, mentioned in the suit of Mahesh Narain, are Joint Hindu Family properties. This denial doesn't find a mention in the para no.15 on page no. 8/68 in the judgment of 20­09­2014 and has implications for the decision arrived.

18. Mahesh Narain, who as defendant no. 4, vide para nos. 16 and 23 of his Written Statement dated 27­02­1978 denied the temple properties and insisted that the same are joint Hindu family properties, later corrected himself and retracted his contention during his examination­in­chief as PW­1. He de­ posed that the nature of properties at Naiwara is temple and properties attached to it and that Pt. Chaturbhuj as well as Pt. Jagan Nath and Laxmi Narain were Pujaris in these prop­ erties.

19. That it is evident from the deposition of Sh. Mahesh Narain that he admitted in effect that the joint family income of the Pujaris, which goes with their office towards emoluments for the service of deities in the temple is distinct and different from the ownership of temple properties per se. Their entitle­ ment to occupy the temple and avail it's income does not RCA Nos. 31, 32 and 33/2016 Page ­ 51 of 102

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mean that the temple and properties attached to it themselves are joint Hindu family properties and accordingly, owned by them. It is well settled that the temple properties vest in the deities, being juristic entities as per law, whereas, their emol­ uments are the properties owned by Pujaris and Archakas, as per law.

20. In the case of "Ramanujacharyulu vs Pandurangacharyulu", AIR 1957, A.P. 272, it has been held that "The office of an Ar­ chaka when emoluments are attached to it, is heritable and partible property. So long as the services are duly per­ formed, the incidents of that property are analogous to those of any other partible property under Hindu Law. If the office is jointly owned by the family, the property, which goes with the office is also joint family property. So long as there is no partition among the members of the family, it follows that the income from the property is joint family income. The income from such a property is not income only of persons in the family of the same degree". It follows from the said judgment that parties are only co­sharers in the usufructs of the temple and jointly re­ sponsible for maintaining services therein. This inference is in line with the judgment of Hon'ble Lahore High Court.

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21. The appellants have a right to file suit and seek rendition of accounts from defendant no.1 because he, as per his own ad­ mission, has been collecting the rental income from the tem­ ple properties after the demise of the previous Pujari, his fa­ ther Pt. Laxmi Narain. He also admitted his obligation to maintain the temple and repairs of properties from the in­ come. While passing the restraint orders on 16­09­1978, the Ld. Trial Court directed him to deposit Rs 25/­ every month in a recurring account to be maintained in a Nationalized Bank.

22. After his demise, defendants no. 8 and 10 have admitted to have been collecting the rental income. But, instead of main­ taining the temple, they have been selling the temple proper­ ties for their personal pecuniary gains. It is submitted that they are accountable for their illegal acts. Also, without taking up responsibility regarding the compliance of court's order re­ garding bank account, defendant no. 10 cannot be allowed to stand in testimony for the deceased defendant no.1 and dis­ charge the onus that was upon defendant no. 1 for proving the issue no.2.

23. Dr. B.K. Mukherjea in his treatise, para 5.44 on page 242 ob­ serves thus ­ "It must always be remembered that though some sort of division among the Shebaits inter se may be al­ lowed on the grounds of convenience, yet the "Shebaitship can only remain one body in the eye of law. The deity is RCA Nos. 31, 32 and 33/2016 Page ­ 53 of 102

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represented by all of them acting together, and no one Shebait can be said to represent the idol in part or to possess any interest in any fractional share of the idol's property". It is humbly submitted that the judgment of Hon'ble Justice Mr. M.V. Bhide of Hon'ble High Court of Pun­ jab at Lahore with respect to the Naiwara temple property en­ dorsed this proposition while setting aside the Decree passed by S. Kartar Singh, the then Ld. ADJ, Delhi.

24. It is submitted that merely because Pt. Jagan Nath and Laxmi Narain divided the income from the Naiwara properties be­ tween them, does not mean that they became owners of the temple properties in their respective shares. They remained jointly responsible for the duties to be performed for the deities. It is to be noted that the contesting respondent admit­ ted on 07­04­2003 during cross­examination by the appel­ lants' counsel that they used to perform puja and sewa jointly.

25. That Ld. Trial Court went beyond its jurisdiction in conclud­ ing that the properties at Naiwara are not Joint Hindu Family properties, even though, the defendants no. 2 to 7 had already denied that and plaintiff Mahesh Narain also conceded his as­ sertion and fell in line with them during testimony. The need­ less discussion for arrival on the conclusion that the proper­ RCA Nos. 31, 32 and 33/2016 Page ­ 54 of 102

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ties are not JHF property, as mentioned in the judgment from paras 84 to 95, ignored the distinction between religious office of Pujariship and ownership title of the temple property, be­ sides the total lack of any credible evidence to prove that the suit properties are secular and alienable, as alleged by defen­ dants no. 1 & 8 to 10 in their Written Statement dated 13­03­ 1978.

26. The case citations of Arunachal Mudaliyar, etc. and Will [EX.DW­1/2] referred during the said discussion were not ap­ plicable without considering the religious office of priesthood as the actual nature of properties devolving upon the parties and the implication of the previous judgments on record. It is submitted that declaring the defendant no. 1 as the absolute owner of Naiwara Temple and properties, amounts to depriv­ ing the deities of their property and putting them in the hands of defendant no.1 with power to dispose them off. Such a proposition is contrary to law and against public policy.

27. The alleged Will [Ex.DW­1/2], which has been allowed by the Ld. Trial Court for drawing the title of absolute ownership of Naiwara properties in favour of defendant no.1/Sh.Ram Narain, is void and ineffective for the reasons mentioned in para no. 14 of the appellant's plaint. These do not find men­ tion in the impugned judgment and have not been considered RCA Nos. 31, 32 and 33/2016 Page ­ 55 of 102

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by the Ld. Trial Court while admitting the Will as proof of title of testator.

28. It is well settled that mere ascertainment of due execution of a Will does not prove the title or existence of the estate devised under the Will. In any case, the Will has to be read in totality.

29. The right and title of the testator Pt. Laxmi Narain is not open for re­agitation in this matter. It has been admitted by the contesting respondent on 06­01­2003 during his testimony as DW­1 that the properties at Naiwara are not self­acquired properties of Laxmi Narain and Jagan Nath. The testator him­ self has devised his estate expressly by virtue of the Arbitral Award and Decree dated 21­01­1920, which was confirmed by Ld. ADJ Sh. G.S. Mongia on 10­03­1939.

30. The contesting respondent no.9, after years of delay and dithering to submit Hindi translations of Urdu documents, conveyed to the Court on 01­08­2011 that he is not relying on these judgments. The Order dated 01­08­2011 in TCR of Suit no.385/10/78 records this denial. It is submitted that under these circumstances, the alleged Will [Ex.DW­1/2] is not left with any value towards evidence for drawing title of the lega­ tee defendant no.1/Pt. Ram Narain on it's basis.

31. The alleged Will [Ex.DW­1/2] has been set up by the legatee, who is interested in acquiring disposing power to sell the tem­ ple properties for pecuniary gains. There is suppression and RCA Nos. 31, 32 and 33/2016 Page ­ 56 of 102

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misrepresentation of the facts besides contradiction with the judgments relied upon in the Will to devise his estate by the testator. There is no mention of Naiwara temple nor any nomi­ nation or instructions to ensure puja sewa of the deities. In­ stead, legatee is being fraudulently passed on rights to sell and mortgage the immovable properties at 867 & 868 at Dharampura Delhi besides the share of Parade Ground tem­ ple as well, contrary to the interest of the deities and against the Law. It is submitted that, rather than being of any assis­ tance in advancing the case of the defendant no.1, this docu­ ment is self­destructive, ineffective and void ab initio, requir­ ing no rebuttal.

32. The testator, Pt. Laxmi Narain was only holder of religious of­ fice of priesthood and he owned none of the immovable prop­ erties of the temples, which he could have lawfully be­ queathed to the legatee, with rights to dispose, sell and mort­ gage, as per his wish. The alleged Will [DW­1/2] doesn't serve the purpose of proving ownership in favour of defendant no.1. [Rajeshwar Mullick Vs. Gopeshwar Mullick; 12 CWN 323; ILR 35 Cal.226].

33. The Ld. Trial Court has erred in observing that defendants nos.2 to 7 have not led any evidence, it is submitted that the undisputed facts of Naiwara temple and properties attached to it as well as the rights and interest of the predecessor­in­in­ RCA Nos. 31, 32 and 33/2016 Page ­ 57 of 102

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terest of the parties are already disclosed by the judgments of previous litigations placed on record by the first set of defen­ dants no. 1 & 8 to 10, and also admitted by the parties. The Ld. counsel of defendants no. 2 to 7 examined the witnesses. The factum of the Arbitral Award and the Decree passed on it's basis, joint puja sewa by Pujaris and termination of Ram Lila procession at the Naiwara temple were admitted by the contesting respondent no.9 appearing as witness on 07­04­ 2003.

34. It is important to note, on the other hand, neither defendant no. 1 during his lifetime, nor defendant no.8/Smt.Kanta led any evidence in discharge of their onus to prove issues no. 2 and 3 respectively. In spite of restraint orders being in force, the property no. 19, New Krishna Nagar, Delhi­51 was sold off by the defendants no. 1 & 8 to 10 during pendency of pro­ ceedings in trial court and Contempt Case no. Misc.SCJ/59724/2016 (M­21 of 2014) was instituted against the said defendants/ respondents from the plaintiff's applica­ tion under Order 39 Rule 2A CPC.

35. During the course of proceedings in appeals before this Court, respondent no.9 has sold suit property no. 2353 and a street­ side portion of the property no. 2354 in illegal deals with third parties. It is submitted that this Court has jurisdiction to take note of the developments during pendency of the proceedings RCA Nos. 31, 32 and 33/2016 Page ­ 58 of 102

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and pass appropriate orders for suitable relief in the interest of the deities and their temples.

36. Contesting respondent/ Sh. Ajay Narain has already admitted during his cross examination that idols of Shri Radha Krishna were installed in the New Krishna Nagar property and regular prayers were held but no prayers are now held because his mother Smt. Kanta/defendant no. 8 (respondent no.7 herein) has sold the property while restraint orders were still in force. It is submitted that defendant no.8 is not entitled to defence on the grounds of equity as well.

37. The appellants were not required to prove that the property at Naiwara is a public temple nor any issue was framed to dis­ tinguish whether the property is public endowment or private endowment. The defendants contended that the Naiwara property is not an endowment because it is a private temple meant only for worship by family members, whereas, the other temple at Parade Ground is a public temple and endow­ ment. It is submitted that endowments can be both public or private. Ld. Trial court has quoted the correct law in para no. 114 of their judgment from the case of Deoki Nandan Vs. Murlidhar [AIR 1957 SC 133; (1956) SCR 756].

38. It is submitted that the onus to prove that Naiwara temple is not an endowment because it is a private temple and not a public temple like the Parade Ground temple, should have RCA Nos. 31, 32 and 33/2016 Page ­ 59 of 102

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been on defendants no. 1 & 8 to 10, as it was alleged by them in their Written Statement.

39. The respondent no.9, interrupted his examination­in­chief on 01­03­2002 while exhibiting the plaint of CS:504/1917 [Marked 'Ex.DW', paginated 227 in TCR case file 385/10/78, also certified copy submitted at Sl.no. 5, page 97 of the appel­ lant's List of Documents dated 29­01­2015 with the present appeal RCA DJ/61519/2016 (54/14)] as his Ld. counsel wanted to file the Hindi translation of Urdu documents.

40. The respondent no.9 did not file the translations because the contents of Urdu documents are not favourable to him; so, it can be inferred [Indian Evidence Act ­ Section 114]. The above­mentioned plaint of the Suit no. CS 504/1917 shows that the plaintiffs Jagan Nath and Laxmi Narain did not differ­ entiate between the temples at Naiwara and Parade Ground and treated them alike for the purpose of valuation in their Suit 504/1917 as religious properties and not secular in na­ ture.

41. The plan of the Naiwara properties [Ex.PW­1/1 & Ex.PW­1/2 on page marked 203 in TCR of 391/10/77] features a simple Hindu temple architecture consisting of a Garbhgriha (Sanc­ tum Santorum)­ centrally located chamber for housing the deities, having a Parikrama (Circumbulatory) for Pradakshina of the devotees to go around the deities, an Antaral ­inner ve­ RCA Nos. 31, 32 and 33/2016 Page ­ 60 of 102

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randah for devotees to have close 'darshan' of the deities, fol­ lowed by another bigger open courtyard, besides a porch lead­ ing upto the gate, which opens towards the Street Dharam­ pura. The idol of Hanuman Ji is placed in a separate enclo­ sure near the entrance to the courtyard. Placement of the idols in the Garbhgriha is such that even a devotee standing on the street in front of gate can have their 'darshan'. The property no. 868 (old), 2484 (new) is adjoined at the back of temple for residential use, which has been later rented­out as and when family of Pujaris has constructed rooms for their residence on the upper floors of property no.2354.

42. The Naiwara properties, which are described in the previous judgment of Ld. ADJ S. Kartar Singh as temple with two shops and a residential house presently, have their own sepa­ rate Municipal numbers. One of the shops no.2353 was used as 'Tabitha' (drawing room) while the other shop 2355 was rented­out. In between these two, stands the gate of 2354 leading to the temple from Dharampura Street and the ad­ joined house is at the back having separate no.2484 with gate opening in Gali Naiwara, which runs perpendicular to Dharampura Street.

43. It is an admitted fact that the procession of Ram Lila, which starts from the Parade Ground every year, terminates at the Naiwara temple on the last day and feast is organized by emi­ RCA Nos. 31, 32 and 33/2016 Page ­ 61 of 102

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nent persons devotees therein. This is corroborated by the Ram Lila pamphlet, distributed on this occasion. [Ex.DW­ 1/17 Mark X] as well as statements of the witnesses.

44. The pamphlet "Mark­X" nowhere mentions the name of Pt.

Ram Narain on it (as mentioned in para no.116 of the judg­ ment) nor it mentions that Naiwara temple is his private tem­ ple. As a matter of fact, this pamphlet was distributed by (late) Pt. Jagan Nath and Pt. Laxmi Narain in the year 1933 when they were involved in litigation as defendants in the suit filed by Sham Sunder and Siri Ram on 11­10­1932 for annulment of the Decree dated 21­01­1920. Since, Sham Sunder and Siri Ram already had a share in Ram Lila and Parade Ground by virtue of a previous decision and they were now seeking a share in Naiwara temple also; it was only a precautionary mention in the pamphlet by the defendants Pt. Jagan Nath and Laxmi Narain that Naiwara temple was referred as their own temple. The expression " Nij ke" is simply used by them to mean "their own" in order to avoid any legal complication and distinguish the same from the Parade Ground temple from where the Ramlila procession originates. It is being wrongly interpreted to mean personal or private by the con­ testing respondents.

45. Mere mutation of their names in M.C.D. record by Pt. Jagan Nath and Laxmi Narain and after them by their respective RCA Nos. 31, 32 and 33/2016 Page ­ 62 of 102

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sons for the purpose of paying taxes towards residential and commercial usage of portions, doesn't advance the case of de­ fendants/respondents. In the case of Sawarni Vs. Inder Kaur on 23rd August 1996 [1996 SCALE (6) 333}, it has been held by Hon'ble Supreme Court that "mutation entry of property in the revenue record does not create or extin­ guish title nor has it any presumptive value on title". It is submitted that the temple can be mutated in the name of Shebaits who manage the properties and pay taxes.

46. In para no.6.2 of his treatise on Hindu Law of Religious and Charitable Trusts, Dr. B.K. Mukherjea has observed that "the duties of a Shebait are both spiritual and temporal. Sheba (or Seva) literally means service, and whenever an image is set up, a Shebait is necessary to render services to the deity."

"When the Shebait is himself the Archaka, the pujas have also to be performed by him.

Otherwise it is not necessary that the Shebait should conduct the worship himself; he can appoint a priest for that purpose, but the responsibility always is his to see that the religious ceremonies are properly performed".

Further, in para no. 6.9 regarding right of residence, he mentions that "the general feeling of the Hindu RCA Nos. 31, 32 and 33/2016 Page ­ 63 of 102

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Community is in favour of giving the Shebait a right of residence in the deity's house, but such right is really appurtenant to the duties which the Shebait has got to discharge in regard to the spiritual and temporal affairs of the idol".

47. The root document of Naiwara properties, in original, which was in possession of the first set of defendants nos 1 & 8 to 10 during the course of proceedings in the consolidated suits, shows that Pujari Chaturbhuj was only one of the contributors for acquiring the plot of land in the year 1865 for establishing the temple of Bhagwan Lakshmi Narain Ji Maharaj, which came to be known as the Naiwara temple because of it's location in that area.

48. The defendants/respondents cannot be allowed to draw title by any secondary evidence of title as they have not produced the original deed document of 1865 in their possession for perusal of the court [Evidence Act (1872) S.65].

49. The aforesaid Sale Deed shows that a piece of land admeasuring about 200 Sq. Yds. with some built­up brickwork, in Naiwara, Dharampura locality of Delhi, was sold by one Shri Bhawani Prasad, son of Lala Gulab Singh from Mahajan Community, resident of Gali Kedar Nath for a sum of Rs.600/­ (Rupees Six Hundred only) to 4 (four) persons RCA Nos. 31, 32 and 33/2016 Page ­ 64 of 102

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namely Pujari Vishnu Das alias Budhan ji, Pujari Chaturbhuj, Kanwar Keshore Das & Bishan Prasad, both sons of Lala Kewal, for the purpose of establishing a temple of Shree Lakshmi Narain Ji Maharaj.

50. The above­mentioned original document is in Urdu but it has a noting written on top in Hindi mentioning that it is "Kabala of the temple's land" besides the date of acquisition, as per the Hindu Calendar.

51. The root document shows that it to be regarding a property devoted to perpetual religious purpose, as envisaged by multiple founders, including Pujari Chaturbhuj in it's inception. More than one person had contributed with the intention to renounce their share of ownership in the plot of land for the pious purpose of establishing the temple of Bhagwan Lakshmi Narain Ji.

52. It is an admitted fact that idol of Bhagwan Lakshmi Narain Ji is installed as the main deity in Naiwara temple besides idols of Lard Ram, Sita, Lakshman and Hanuman ji. This is also evident from the photographs on the record of Trial Court.

53. Later events after institution of the temple show that Sh.

Chaturbhuj, as the founder Pujari and one of the contributors for its establishment was acting as both a Shebait and Pujari. After his demise, his only daughter became responsible for the puja and sewa in the capacity of a Shebait, as per law.

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54. It is submitted that the above document shows that whatever secular character the plot of land had, was totally extinguished after relinquishment of their respective shares of ownership by the contributors, upon establishment of the temple in realization of the pious purpose intended by them. The property in question is an endowment held by the descendants of Pujari Chaturbhuj as quasi trustees and responsible for puja and sewa of the deities. ARGUMENTS OF THE APPELLANT SH. SURESH NARAIN QUA NAIWARA PROPERTY (1) The observation made by Ld. Trial Court in para no.117 on page no.62/68 of the judgment that, the findings of the Ld. Arbitrator that Pt. Jagan Nath and Pt. Laxmi Narain were Pu­ jaris in the Naiwara temple did not amount to a declaration that they were not owner of the said property and had a lim­ ited interest in the same being a Pujari, is conjectural and er­ roneous in the light of judgments cited above. It also contra­ dicts the Court's own next observation that, it only upheld their claims as Pujaris in the Chhipiwara/Naiwara temple. (2) It is admitted fact that Sh. Chaturbhuj and his heirs have been Brahmin pujaries, as per their profession of priesthood. According to the Hindu Shashtras, after installation of the deity, there should be worship daily. This service/ puja sewa RCA Nos. 31, 32 and 33/2016 Page ­ 66 of 102

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is conducted in temples by Pujaris and Archakas. They con­ duct sewa and puja of the deities and perform religious rites for their livelihood. It is well settled that they are not owners and their right to enjoy possession of the temple is merely to facilitate them perform their primary duty of conducting puja sewa in the temple. Pt. Jagan Nath and Laxmi Narain were awarded right of residence in addition to the benefits of offer­ ings and rental income on the force of custom and usage since such rights were availed by their mother Smt. Brij Rani and their brother Raghbar Dayal was completely dis­entitled from all these rights on account of his adoption out of the family.

(3) The judgment of Arbitrator is unambiguous and clear in de­ ciding that (i) Pt. Jagan Nath and Laxmi Narain are held 'Pu­ jaris' of the Naiwara temple and (ii) their brother Raghbar Dayal, on account of his adoption out of the family, was to have nothing to do with this temple. First part of the judg­ ment adjudicated the entitlement qua the Naiwara temple in favour of plaintiffs as Pujaris thereof and the second part ad­ judicated possession resulting in ejectment of the defendants on account of adoption out of the family.

(4) Once the above­mentioned decision is admitted to be binding upon and being acted upon by the parties as well as their predecessors, in addition to the other undisputed facts dis­ RCA Nos. 31, 32 and 33/2016 Page ­ 67 of 102

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closed via the certified copies of Judgments placed on record by the defendants. 1 & 8 to 10, no further evidence was re­ quired to be led by defendants. 2 to 7 in respect of the prop­ erties. Moreover, their Ld. Counsel examined witnesses in­ cluding the contesting respondent no.9/Sh. Ajay Narain. (5) It also follows from the said judgment that the right to con­ duct puja sewa in the temple, avail benefits of income from offerings and renting­out of the properties attached to the temple and to enjoy possessory right of residence therein, vests only within the family of Sh. Chaturbhuj and his daughter Brij Rani, since her natural son, Raghbar Dayal, who was adopted out of the family, stood dis­entitled com­ pletely from the Naiwara temple. Hence, the said rights to the usufructs of the Naiwara temple and properties attached to it are not transferable to any stranger. Particularly so, as the transferee may be incompatible, incompetent or unwilling for conducting proper worship of the deities due to his different beliefs.

(6) The observation of Ld. Trial Court in para no.117 that, it was never a fact in issue before the Arbitrator, whether the Nai­ wara property was an endowed property or not and that the Court was never called upon to decide the question ­ whether the Naiwara property was a temple or not, doesn't take into consideration the undisputed facts of the litigations ensuing RCA Nos. 31, 32 and 33/2016 Page ­ 68 of 102

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from suit no.504 of 1917 and has thereby arrived at an erro­ neous conclusion.

(7) It is respectfully submitted that the Naiwara property is a temple with properties attached to it, being a fact stated by the plaintiffs Jagan Nath and Laxmi Narain themselves in their suit and this fact was not even disputed by the defen­ dants Sham Sunder and Siri Ram either. Therefore, question of any doubt about the Naiwara property being a temple with properties attached to it, does not arise at all, nor could this be an issue to be adjudicated by the Court making the award. It is futile to turn the clock back and raise questions regarding the judgment based upon such conjectures. (8) The defendants no. 1 & 8 to 10, in their Written Statement dated 13­03­1978, have obfuscated the issue of religious en­ dowment by insinuating that if an endowment is not public endowment, then, it is no endowment. At the same time, they have also contended that the temple in Naiwara property is a private temple for worship by the family members only, so, it is no temple and no endowment. Ld. Trial Court also er­ roneously decided the issue on the same line of reasoning and relied upon citations applicable to public temples. Also, in para 116, mutation entry of Ram Narain's name, instead of any Hindu God or deity in Municipal records, is seen as con­ RCA Nos. 31, 32 and 33/2016 Page ­ 69 of 102

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clusive for advancing the case against evidence of any reli­ gious trust.

(9) It is well settled in Hindu Law that religious endowments can be public or private. Ld. Trial Court in para 114, has quoted the correct law from the "Deoki Nandan Vs. Murlidhar"

case [AIR 1957 SC 133; (1956) SCR 756]. Moreover, there was no issue framed to distinguish between Private and Pub­ lic Endowment nor the onus placed on the defendants no. 2 to 7 to prove that the properties are specifically public en­ dowment.

(10) It is submitted that as the defendants no. 1 & 8 to 10 had contended that the Naiwara temple is not a public endow­ ment and being a private temple, it is no endowment at all, then, the onus should have been upon them to prove their contention with cogent evidence that it is not public temple. (11) The defendants no. 1 & 8 to 10 setup claim of absolute own­ ership of the suit properties nos. 867 and 868, Naiwara, Delhi in favour of defendant no. 1/Sh Ram Narain exclusively on the basis of his father's alleged Will [Ex.DW­1]. In the said Will, the testator has devised his estate solely by virtue of the judgments of litigation ensuing from his civil Suit no.

504 of 1917 including the aforementioned Arbitral Award of the Umpire Sh. Babu Mal, Decree dated 21­01­1920 by Sh. Gian Singh, Munsif, 1st Class, Delhi and decision dated 10­ RCA Nos. 31, 32 and 33/2016 Page ­ 70 of 102

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03­1939 by Sh. G.S. Mongia, the then Ld. ADJ, Delhi, which relates to the Naiwara temple and properties attached to it. But, the testator has suppressed the religious character of the properties sought to be bequeathed by him. There is no mention of Naiwara temple anywhere in it nor of his own sta­ tus as Pujari in relation to the temple.

(12) As far as intention of the testator is concerned, neither he was authorized nor the Will is about nominating anyone to conduct sewa puja in the temple after his demise nor for con­ veying any instructions for taking care of the deities. Rather, the properties are misrepresented as private owned proper­ ties and unlawfully being passed on to the legatee with right to mortgage, sell, etc. in contradiction with the very judg­ ments being relied upon to devise his estate. Intention of the Will is, therefore, contrary to the interest of the deities as well as the judgments being relied upon. It is void ab initio and ineffective due to inherent contradictions. (13) Ld. Trial Court overlooked the misrepresentation and sup­ pression of facts besides contradictions with the judgments mentioned in the Will while observing in para no. 95 on page no.50/68 that the said Will [Ex.DW­1/2] can be read in evi­ dence for settlement of issue.

(14) It is submitted that a Will has to be read in totality by the Court and the question of title cannot be decided merely by RCA Nos. 31, 32 and 33/2016 Page ­ 71 of 102

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ascertaining proper execution thereof. Suit for injunction cannot be converted into a suit for probate, which is jurisdic­ tion of the appropriate Succession Court. Moreover, even if a probate has been obtained, merely the same does not decide the title or the existence of property devised under the Will. [P.R. Hemchandra Babu vs P.R. Janardhanam (2003) 2 MLJ 475].

(15) Furthermore, it is submitted that any statement, attributed to Pt. Laxmi Narain in his alleged Will, can neither override the statements voluntarily made by him in his own Suit no.504/1917 as plaintiff nor alter the undisputed facts ad­ mitted by him during litigations ensuing from the said plaint. Rather, the contradictions in between these reveal the setup of absolute ownership advanced by defendant no.1 as the legatee, as one interested in fraudulently obtaining absolute right to dispose off the temple properties for his own pecu­ niary gains. It is important to note that the testator seeks to bequeath the right to dispose off the share of Shebaitship rights even in the other temple at Parade Ground which is admitted by the legatee himself as a Public Temple in the Written Statement dated 13­03­78 'Rajeshwar Mullick Vs. Gopeshwar Mullick" ILR 35 Cal.226.

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(16) Ld. Trial Court seriously erred in deciding issue no.2 in favour of defendant no.1 on the basis of the alleged Will [Ex.DW­1/2] which is a nullity by itself and void ab initio. As submitted above, the judgments relied upon by the testator in the Will only confer Pujariship rights upon him. His inten­ tion is not to gift or nominate any of these rights to legatee for ensuring proper services and maintenance of the temple, but to hide the religious nature and character of the inher­ ently inalienable Naiwara temple properties and make them transferable for pecuniary gains by the legatee contrary to the interest of the deities. In effect, the impugned judgment erro­ neously confers upon the son of a Pujari power to dispose off the temple properties as absolute owner thereof on the basis of a Will which is void in it's inception.

(17) It is also important to note that the plaint, arbitral award and Decree mentioned in the alleged Will are documents in Urdu. During his examination­in­chief as witness DW­1 on 01­03­ 2002, the contesting respondent/Sh. Ajay Narain started exhibiting these documents when his Ld. counsel submitted that he would file Hindi translations of the said Urdu docu­ ments. Exhibition of the plaint (marked "Ex.DW") was inter­ rupted and further examination deferred thereafter. (18) However, the respondent did not submit the translations for nearly nine years in spite of being given several opportunities RCA Nos. 31, 32 and 33/2016 Page ­ 73 of 102

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by the Ld. Court to do so. On 30­03­2011, he was given last and final opportunity to submit the same but he still did not comply with the Order. After nine years of dithering during proceedings, on 01­08­2011 he finally backtracked and con­ veyed his disinclination to submit the translations stating that he is not relying upon the same. This was noted by the Ld. Trial Court in Order dated 01­08­2011. (19) As shown above, the Will [Ex.DW­1/2] exhibited by contest­ ing respondent relies on the documents, which were to be translated, but the respondent has submitted that he is not relying upon them. Therefore, the said Will [Ex.DW­1/2] is, even otherwise, of no value as credible evidence for advancing the case of the contesting respondents on issue no.2. (20) The above act of suppression and withdrawal by the contest­ ing respondent leads to inference that contents of these doc­ uments are unfavourable to him and prove the appellants' case. [Section 114 of Indian Evidence Act]. (21) From the plaint of CS­504/1917, it is revealed that Pt. Jagan Nath and Laxmi Narain did not make any such distinction between the religious characters of the temples at Naiwara and Parade Ground, as is being alleged by the first set of de­ fendants 1 & 8 to 10. None of these temples was treated as secular by the plaintiffs in their suit.

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(22) The first set of defendants did not submit the root document of Naiwara property, the original of which was in their pos­ session. They opposed even a copy of this document and ac­ companying map from being taken on record while stating that except arbitral award, no other document has any rele­ vancy to this case [Their reply dated 08­10­1979 to the appli­ cation of the plaintiff/appellant under Order XIII Rules 2 & 10 dated 29­03­1979].

(23) Furthermore, after demise of defendant no.1, the respondent/Sh. Ajay Narain appearing in witness box as DW­ 1, stated on 30­09­2002 as follows:­ "My father has not left behind with me any accounts and only left behind the Will for the properties willed by him in my favour. Other records available with my father were al­ ready filed by my father in the Court".

However, later on, when proceedings in the consolidated suits were at the stage of final arguments, he submitted the said original Sale Deed in another case no. CS­164/09 on 14­ 05­2011 before the Court of Ld. Ms. Saumya Chauhan, the then Ld. CJ, Central, Delhi. Obviously, this was an act of evasion and concealment on his part.

(24) It is apparent that defendant no.1, during his lifetime and af­ ter him, the contesting defendants have intentionally avoided the said document being considered by the Ld. Trial Court for RCA Nos. 31, 32 and 33/2016 Page ­ 75 of 102

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adjudication of the consolidated suits. It is submitted that this act of the contesting defendants/respondents amounts to "suppressio veri suggestio falsi".

(25) The defendants/respondents cannot be allowed to draw title by any secondary evidence as they have not produced the original deed document of 1865 in their possession for pe­ rusal of the court [Evidence Act (1872) S.65]. The appellant herein had drawn the attention of the Ld. Trial Court while submitting clarifications, but the significance of the contents thereof was not taken into consideration in the judgment by Ld. Trial Court.

ARGUMENTS OF THE CONTESTING RESPONDENT NO. 9/AJAY NARAIN APPELLANT RAJ NARAIN QUA NAIWARA PROPERTY

1. Coming to the other aspects of both the suits, it is submitted that neither Raj Narain, nor his heirs, Nor the other Appellant Suresh Narain, or even any of their other associate defendants, appeared in the witness box to give evidence, nor filed, nor proved any document by way of evidence. Nor subjected themselves for cross examination by the contesting defendants, against whom relief in both the suits were claimed. Thus no evidence had been led by any of the appellants. The appellants, cannot now seek to refer to or rely upon documents which have not been proved at the trial of RCA Nos. 31, 32 and 33/2016 Page ­ 76 of 102

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the case. Thus the compilation referred to by the appellants, is not at all admissible nor permissible to be referred to.

2. The testimony of Ajay Narain and his witnesses remains un­ rebutted. In fact on the contrary perusal of the cross examination of the Defendant Ajay Narain would reveal that the only case that was put up to the Defendant was that the suit property was the ancestral HUF property. No case of the Property being a public or Charitable property or temple was either put to the said defendant. Nor was any evidence produced or proved to the effect that the property was a public Charitable property, or that the alleged Mandir was a Public Mandir, or that any offerings or Charawah or donation was being received from the public. The property being the personal property was rightly disposed off by will as already set out in the Defence, which remains un­rebutted. Rather the case put to the defendant was that the property in question came to Laxmi Narain and Jagan Nath, on the death of Brij Rani, who was the only daughter of Chaturbhuj (cross dt. 6/1/2003).

Further in cross of the same date suggestion has been put to the defendant that Laxmi Narain and Jagan Nath used to collect rent from the tenants, and used to issue joint receipts. The heirs of the other 1/ 2 share in the said RCA Nos. 31, 32 and 33/2016 Page ­ 77 of 102

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property have also been examined as defence witnesses, whose testimony also goes un­rebutted.

3. Nor did the present appellants or for that matter the original Plaintiffs, had any right to claim the reliefs claimed in the suit.

4. Perusal of the Plaint filed by Raj Narain would reveal the following fact and admissions:­

(a) Pedigree of the parties set out in para 1 of the plaint has not been disputed by any of the parties.

(b) It is the admitted case of the Plaintiff Raj Narain that the property at Naiwara was purchased by Pt. Chatturbhuj, the maternal grand father of Pandit Jagan Nath and Pandit Lakshmi Narian (Para 3 of plaint) . Thus the said property was purchased by Pt. Chaturbhuj, in his individual capacity, and at no point of time was it dedicated for any pious or religious purpose, or any trust, nor to any deity as is now being falsely contended. The said Sh. Chatturbhuj being a Brahmin, and religious minded person, had for his own installed certain idols, in a part of the ground floor of the said property, where he used to perform Pooja, which was wholly his personal Pooja Sthal, and no public had any visitation or Pooja rights. Nor was the said space used by the public as is now falsely contended.

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(c) Perusal of the plan Ex.PW 1/1 filed and proved in the connected case by Mahesh Narain also describes the said space as " PRIVATE TEMPLE". Thus it cannot be now argued or contended that it was a public temple, or open to public at large for prayers as now falsely contended, without any evidence. Moreover, perusal of the said plan would also reveal that over the said temple space, there is a room on the first floor, which is used for Residence. There is no GUMBAD, as all public temples, have Gumbad over the head of the idol space, and no residence is maintained because feet of any individual cannot be allowed over the head of a deity. Nor is any earning received nor any offerings by the public are made therein, nor is their any evidence to the said effect.

(d) The said Pooja sthal is surrounded by other rooms which are all used for the residence and not for any religious purposes.

(e) The Plaintiff further goes on to admit in the plaint that the said property on the death of Chaturbhuj, was inherited by Jagan Nath and Lakshmi Narain. The said two persons were the only two heirs of the said Chaturbhuj on his death as is other son Raghbar Dayal had already gone in adoption to Seva Singh(as admitted RCA Nos. 31, 32 and 33/2016 Page ­ 79 of 102

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in the pedigree of the plaint para 1) Thus the said property as a whole was inherited by the said two heirs, Jagan Nath and Lakshmi Narain, in equal shares,and ever since then the said two heirs had been collecting the rental income of the said property and sharing the proceeds of the said rental income in equal shares. This fact is admitted in para 4 and 5 of the plaint, though falsely contending that they were acting as pujaries . It is admitted case of the plaintiff that both the persons were also issuing the rent receipts in their name jointly and collecting the rent from the tenants, under their own signatures.

(f) It is further admitted in the plaint (para 6), that Shyam Sunder and Siri Ram after the death of their predecessor Raghbar Dayal tried to claim ownership in the said property, and therefore the said Jagan Nath and Lakshmi Narain filed a suit for declaration that they alone were the owners of the said property , which was duly decreed. False interpretation is attempted to be put by the Appellant that the said two Jagan Nath were held to be Pujaris and not owners thereof, which submission of the Appellant is begging the question. There was no issue before the arbitrators for seeking declaration with respect to the declaration of Pujari, as RCA Nos. 31, 32 and 33/2016 Page ­ 80 of 102

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now falsely contended. In fact the decree passed by the Court of Bhai Gian Singh propounded by the appellant also shows that the suit was for declaration that the plaintiffs were owners in possession of the said property, which has accordingly been decreed in favor of Jagan Nath and Lakshmi Narain. Moreover the pleadings,of the said case, nor the judgments delivered in the said cases been proved on the record of the case, and the copies now attempted to be placed are not admissible. The Appellant chose to not to appear in the witness box during trial, and chose to absent themselves. Thus the said submissions of the appellant are without any evidence. In any case there is no finding or decree that the said Jagan Nath and Lakshmi Narain were not the owners of the said property, or that they did not inherit the same from their ancestor. Rather it has been held that Sham Sunder and Siri Ram had no right in the said property.

(g) That on the pleading of the plaintiff, (Para 12) though not admitted, it is submitted that according to the plaintiff the property vests in the God. Thus on the showing of the plaintiff himself the plaintiff has no locus standi to either file the suit or to claim decree for accounts, and decree for recovery on accounting.

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(h) Nor has the plaintiff obtained permission, as envisaged by Sections 91 & 92 of CPC.

(i) Nor have the Appellant proved their case, nor produced any evidence.

(j) In fact the present plaintiff, subsequent to the filing of the present suit, also filed another suit in the High Court of Delhi (Ex DW 1/12) challenging the right of Deceased defendant No.1 Ram Narain to execute the will dated 20/1/2995 and the same be declared to be illegal, and cancelled. The said suit was also dismissed by the High Court vide Order Ex DW 1/14.

(k) On the showing of the plaintiff himself the suit is bad for non joinder of parties. According to the plaintiff the property was inherited by Jagan Nath and Lakshmi Narain jointly. The heirs of Jagan Nath have not been impleaded as parties to the suit.

(l) Lakshmi Narain by virtue of his will Ex.DW1/ 2 bequeathed his share to Ram Narain which was not challenged by the Defendants in the life time of Lakshmi Narain that he had no right to make will. Ram Narain inherited the property in his individual right, and not as Karta or HUF, and had the absolute right to dispose of the said property as his individual property by sale, or will (Ex DW 1/1) or otherwise, which has been RCA Nos. 31, 32 and 33/2016 Page ­ 82 of 102

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bequeathed to the Defendant No 10 (of suit) against which suit filed in the High Court has also been dismissed as above stated.

(m) Similarly the other owner Jagan Nath bequeathed his one half share to his heirs by will, which has also not been challenged by the Plaintiff.

(n) The property is assessed to House Tax in the names of Jagan Nath and Ram Narain, individually. Had it been a Mandir, it would neither been assessed to house tax, nor recorded in their names, nor was house tax leviable thereon. (Receipts Ex. DWS 1/ 3, 1/ 4, 1 / 5 and DW1/9.

(o) In none of the judgments propounded by the Appellant, though not admissible, has it been held that the suit property is a public temple, or a trust property, as now falsely contended by the Appellant. Rather the Judgment of the High Court propounded by the Appellant also recites that the suit filed by Jagan Nath and Laxmi Narain was for declaration that the property in question was their exclusive property, and suit was accordingly decreed. The said case was for their joint inheritance and not for their being declared pujaries, as now falsely contended. Rather in the of Sh. G S Mongia, propounded by the Appellant, also holds that it RCA Nos. 31, 32 and 33/2016 Page ­ 83 of 102

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is the admitted fact that the temple and the property at Naiwara/Chipiwara belonged to Chaturbhuj and property passed on to his widow Birjo Devi and then to Laxmi Narain and Jagan Nath. It was also held that the said two were exclusive possession of the said property.

(p) The evidence of Ajai Narain as DW 1 remains un­ rebutted. Rather in the cross suggestion has been put to the said witness as under:­ "It is correct that this property came to Laxmi Narain and Jagan Nath through Brij Rani. It is incorrect this property came in their hands as ancestral property"

Again in latter part of cross it suggestion has been given as under:­ "It is correct Laxmi Narain and Jagan Nath used to collect rent from various tenants in the shops and issue joint receipts till they were alive. It is correct thereafter rent was recovered by Ram Narain. It is correct no partition was effected between Jagan Nath and Laxmi Narain".

Further question put to witness in cross:­ "I do not remember if Laxmi Narain and Jagan Nath were not declared as exclusive owners, as this was ancestral property.

Further in cross questions have been asked which are replied as under:­ RCA Nos. 31, 32 and 33/2016 Page ­ 84 of 102

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"It is incorrect that Ram Narain formed a joint Hindu Family with his sons."

Thus it is submitted that the case put forth before the Trial Court was of the property being allegedly HUF property, and no case of the property being allegedly belonging to God or deity was put forth.

No evidence has been produced to show that it was allegedly a public temple, or that Charawa from public used to be received as now falsely contended.

The Plaintiff was also given opportunity to produce rebuttal evidence, which too was not produced, and evidence closed vide statement dated 21/1/2004 and 16/01/2004.

The Facts stated in the written statement stand duly proved, and are reaffirmed herein.

The Plaintiff was all along aware of the will Ex.DW1/2, which is dated 6/3/1950 but the same was never challenged by the Plaintiff for all the years and the present suit filed after about 28 years thereof is hopelessly time barred.

Inheritance of property.

Mere inheritance of property by any individual from its predecessor does not make it an HUF property in the hands of the person who inherits the same.

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Reliance is placed upon :­ 242(2017) DLT 315.

209 (2014) DLT 336.

AIR 1986 S.C 1753.

228(2016) DLT 515.

FINDINGS AND CONCLUSIONS OF THE COURT ON THE QUESTION OF NAIWARA TEMPLE AND THE PROPERTY ATTACHED TO IT There is no dispute between the parties that the suit was filed by Pandit Laxmi Narain and Pandit Jagan Nath against Sh. Shyam Sunder and Shri Ram Pisran, S/o Shri Raghbar Dayal. The entire controversy of the present case hinges on an Arbitration Award dated 16.10.1919 passed by Rai Bahadur Babu Mal, the then Executive Engineer (Retd.). The Ld. Arbitrator/ Umpire had considered the rival contentions of the parties and had passed the following Award:­ "In this suit, the court has appointed me Umpire. I have gone through the file. I have read the judgments of Lala Bhagwan Dass and Lala Radhey Mohan. I agree with the view of Lala Radhey Mohan that Raghbar Dayal used to tell his parentage according to opportunity. Statements of witnesses have been examined. Among these, the statement of Pandit Mani Ram is reliable since he was present during the ceremonies of marriage and adoption. He is an elderly and respectable man. I hold that Raghbar Dayal was definitely adopted by Seva Singh and has nothing to do with the temple in Chhipiwara.

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Lakshmi Narain and Jagan Nath are held to be the Pujaris thereof. The temple at Parade Ground has been given by a lady for Ram Lila. The said temple is neither the property of Lakshmi Narain, nor of Jagan Nath, nor of Raghbar Dayal. This temple of waqf property. The offerings shall be divided amongst the three brothers, just as they divide the offerings of Ram Lila. But since the widow of Raghbar Dayal has to bring up the minor children and she needs to keep one man from her side for carrying out Puja/Seva together with Jagan Nath and Lakshmi Narain at the temple whose expenditure will have to be borne by the widow, I, therefore, decide that for ten years that is upto 16.10.1929, the widow of Raghbar Dayal shall take ½ share instead of 1/3rd share of the offerings of the temple and Jagan Nath and Lakshmi Narain shall distribute the remaining half that is 1/4th each. After ten years, each shall take equal 1/3rd share. After incurring the expenditure on temple festivals the remaining shall be distributed one half to the widow of Raghbar Dayal and the other half to both brothers together or distributed 1/4th each. This is the award of arbitration. Dt. 16.10.19. Signed. The parties shall bear their own cost. Dt. 16.10.19. Signed."

In the said Award, there is a mention of temple in Chhippiwara and it was decided by the Ld. Arbitrator that Sh. Laxmi Narain and Sh. Jagan Nath were held to be Pujaris of the said Chhippiwara Temple. The suit, on which basis, the aforesaid Award was passed by the Ld. Arbitrator, is required to be considered in order to correctly appreciate the findings of the Ld. Arbitrator/Umpire.

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As per translated copy, in para no.2, it is mentioned that "one single storey house and temple at Mohalla Naiwara, Pucca built­up belonging to Chaturbhuj ji Maharaj, maternal grandfather of plaintiffs, was owned by maternal grandfather of plaintiffs himself during his lifetime and after his death, the mother of the plaintiffs became owner in possession of the aforesaid property and that plaintiff's mother carried on Sewa and Pooja of the aforesaid temple and kept on availing the benefits of income of the house and shops connected to the temple throughout her lifetime." It is also mentioned that "father of the defendants had nothing to do with the said temple and its income."

As per translated copy, in sub para C of para no. 6, it is mentioned that "the plaintiffs have been availing benefits of the temple and the property attached to the temple at Naiwara, its income and offerings etc......." In Sub­para A of para no. 10, it is mentioned that "declaration be granted that the plaintiffs are exclusive owners of temple and house and shops located in Mohalla Naiwara......" The Award dated 16.10.1919 passed by the Umpire was confirmed by the then Munsif Judge by judgment dated 21.01.1920.

In the second round of litigation, the said Shri Sham Sunder & Anr. had filed the suit on 11.10.1932 after attaining the majority praying for declaration that the previous Decree dated RCA Nos. 31, 32 and 33/2016 Page ­ 88 of 102

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21.01.1920 was not binding on them and they are entitled to 1/3rd share in Naiwara Temple and that they are the sole owners of temple in the Parade Ground. The said litigation went upto the Hon'ble Lahore High Court, however, Shri Sham Sunder & Anr. were not succeeded in the said litigation. Ultimately, the Arbitration Award, which was made rule of the Court was held to be valid and the same held to be res­judicata.

The Ld. Arbitrator has not held Pt. Laxmi Narain and Pt. Jagan Nath as exclusive owners of temple and property attached to it and the Ld. Arbitrator has held them to be Pujaris of the temple. If it was the private temple and only the family members of Pt. Laxmi Narain and Pt. Jagan Nath, then, where was the question to be held them as Pujaris and instead, the Ld. Arbitrator ought to have held that they were exclusive owners of the said property on the basis of the relief, as claimed by them.

Pt. Laxmi Narain and Pt. Jagan Nath, in the said suit themselves, have alleged that earlier their mother was doing the Sewa and Puja of the temple and kept on availing the benefits of the income. If the temple was the private temple, then, where was the question of keeping the benefits of its income. Similarly, Pt. Laxmi Narain and Pt. Jagan Nath themselves have stated in the suit that they have been exclusively availing the benefits of the temple and property attached to the temple at Naiwara including its income and offerings etc. No person can be expected to get the offerings and RCA Nos. 31, 32 and 33/2016 Page ­ 89 of 102

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income from the private temple. The entire pleading of Pt. Laxmi Narain and Pt. Jagan Nath in the said case was writ at large that there was a public temple and in the said temple, there were offerings and income and Pt. Laxmi Narain and Pt. Jagan Nath were exclusively availing the benefits of the said offerings and income from the temple and the property attached to the said temple. In the said pleading, there is also one more important fact that it was a single storey house but in the present case, the said single storey house is now consisting of total four floors i.e. from ground floor to third floor, as per the Site Plan.

There is substance in the arguments of appellant that the parties cannot be allowed to be wriggle­out of the rights, which were conferred upon Pt. Laxmi Narain, as they have been claiming the rights from the said Pt. Laxmi Narain. As per Arbitration Award, only limited rights were conferred upon Pt. Laxmi Narain and it was nowhere held that he alongwith Pt. Jagan Nath were the exclusive owners of the temple and the property attached to it. Pt. Laxmi Narain has no right to create the right, title and interest in the Naiwara temple and the property attached to it. The Naiwara Temple and the property attached to it is inalienable in view of the fact that the same was public temple, as per admission of Pt. Laxmi Narain, as himself has pleaded in the earlier suit that he alongwith Pt. Jagan Nath were enjoying the offerings and income from the said temple and property attached to it. The Ld. Arbitrator/ Umpire RCA Nos. 31, 32 and 33/2016 Page ­ 90 of 102

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has nowhere held that Pt. Laxmi Narain and Pt. Jagan Nath are exclusive owners of the Naiwara temple and property attached to it but they were jointly held to be Pujaris only. Even if, the public has stopped visiting the temple, then also, the temple would not lost the character of being public temple and the same cannot be allowed to be converted into a private temple, as the same was not the personal property of anybody. The Ld. Trial Court has not correctly appreciated the Award and subsequent proceedings, which were done between Pt. Laxmi Narain and Pt. Jagan Nath with Shri Sham Sunder & Anr. The parties to the suit are bound by the decision and the pleadings of the said proceedings. In view of the inalienable character of Naiwara Temple and the property attached to it, Pt. Laxmi Narain was not having right, title and interest to even execute the Will - Ex.DW­1/2 in favour of anyone including in favour of Pt. Ram Narain Sharma. Similarly, Pandit Ram Narain Sharma was also having no right, title and interest to execute the Will in respect of the Naiwara property to anyone. The said Wills, even if validly executed, would not confer any right, title and interest in favour of Pt. Ram Narain Sharma, as Pt. Laxmi Narain was not having any right, title and interest in Naiwara Temple and the property attached to it.

FINDINGS AND CONCLUSIONS OF THE COURT ON THE QUESTION OF HOUSE BEARING NO. 19, NEW KRISHNA NAGAR, NEAR RADHEY PURI, DELHI­110051 RCA Nos. 31, 32 and 33/2016 Page ­ 91 of 102

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The Gift Deed dated 23.05.1966 pertaining to the aforesaid property has been produced on record. It is necessary to interpret the clauses of the said Gift Deed in order to look into the nature and character of the aforesaid property at Krishna Nagar, Delhi. The said Gift Deed dated 23.05.1996 reveals that the same was executed by Shri Durga Dass, S/o Shri Ruldu Singh, the then R/o 34/33, Old Rajinder Nagar, New Delhi as donor of the said property. The same was executed in favour of Smt. Kanta, W/o Pt. Ram Narain. First of all, the said property was neither gifted to Pt. Laxmi Narain nor to Pt. Ram Narain, but the same was gifted to Smt. Kanta. The said Gift was made by some third party and neither by Pt. Laxmi Narain nor by Pt. Ram Narain. The said property was directly received by Smt. Kanta/respondent no. 7 from third party. The entire contention in the plaint that the same was purchased Benami has not at all been proved on record, but the admitted document shows the character of the said property totally different as the same was executed by some outsider in favour of Smt. Kanta/respondent no.7.

The recital of the said Gift Deed shows that the said property was gifted to her in Charity (Donation) for her private temple and residence. The donation was specifically made to Kanta/ respondent no.7 for the said purpose and the donation was not given to anyone else. It is also recorded in the said Gift Deed that the donee henceforth, may enjoy possession of the said land RCA Nos. 31, 32 and 33/2016 Page ­ 92 of 102

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and realize rents and profits therefrom and construct the temple on the said land. It is further recorded that the donee, her heirs, successors and assigns shall absolutely be free to deal with the land hereby gifted in any manner she likes and she shall possess unrestricted powers to alienate the same. It is also recorded in the said Gift Deed that neither the donor nor his heirs shall have any interest, whatsoever, in the said land. The perusal of the Gift Deed reveals that although, the donee Smt. Kanta/respondent no.7 was given the property as charity, but with unfettered rights in her favour and moreover, for the purpose of private temple and for her residence. There is nothing on record to show that the said property was the Joint Family Property of the parties. There is nothing on record that the said property was constructed out of the joint funds. In view of the said Gift Deed, the respondent no. 7 was having unfettered rights to deal with the said property in any manner she likes. The said Gift Deed was executed by the owner, who was totally unconnected with the family. The provisions of Sections 91 and 92 of the Indian Evidence Act would also be squarely applicable. I have profit to refer relevant portion of paras no. 29 to 31 of the Judgment of Hon'ble High Court passed in CS (OS) 84/2009 titled Sparsh Builders Pvt. Ltd. versus Maharishi Ayurveda Products Pvt. Ltd. decided on 16th September 2009:­ "29. The other point that is relevant is whether a party can give oral evidence concerning the intention of the parties at RCA Nos. 31, 32 and 33/2016 Page ­ 93 of 102

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the time of the execution of a document which is not reflected in such document. It was explained by the Supreme Court in Roop Kumar v. Mohan Thedani that Section 91 of the Evidence Act, 1872 (EA) "merely forbids proving the contents of a writing otherwise than by writing itself; it is covered by the ordinary rule of law of evidence, applicable not merely to solemn writings of the sort named but to others known some times as the "best evidence rule". It is in really declaring a doctrine of the substantive law, namely, in the case of a written contract, that of all proceedings and contemporaneous oral expressions of the thing are merged in the writing or displaced by it".

"30. It was further explained in paras 17 to 18 in Roop Kumar (supra) as under (AIR SC @) p.2424­25):­ "17. It is likewise a general and most inflexible rule that wherever written instrument are appointed, either by the requirement of law, or by the contract of the parties, to be the repositories and memorials of truth, any other evidence is excluded from being used either as a substitute for such instruments, or to contradict or alter them. This is a matter both of principle and policy. It is of principle because such instruments are in their own nature and origin, entitled to a much higher degree of credit than parol evidence. It is of policy because it would be attended with great mischief if those instruments, upon which men's rights depended, were liable to be impeached by loose collateral evidence. (See Strakie on Evidence p. 648).

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18. In Section 92 the legislature has prevented oral evidence being adduced for the purpose of varying the contract as between the parties to the contract; but, no such limitations are imposed under Section 91. Having regard to the jural position of Sections 91 and 92 and the deliberate omission from Section 91 of such words of limitation, it must be taken note of that even a third party if he wants to establish a particular contract between certain others, either when such contract has been reduced to in a document or where under the law such contract has to be in writing, can only prove such contract by the production of such writing."

"31. In para 21 of the Roop Kumar (supra), after discussing the rationale behind Sections 91 and 92 of the EA, it was held as under (AIR SC @ p.2425):­ "21. The grounds of exclusion of extrinsic evidence are (1) to admit inferior evidence when law requires superior would amount to nullifying the law, (ii) when parties have deliberately put their agreement into writing. It is conclusively presumed, between themselves and their privies, that they intended the writing to form a full and final statement of their intentions, and one which should be paced beyond the reach of future controversy, bad faith and treacherous memory."

(Portion is bolded in order to highlight) RCA Nos. 31, 32 and 33/2016 Page ­ 95 of 102

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In view of the settled law, as enunciated above and more particularly, in respect of Sections 91 and 92 of the Indian Evidence Act, no oral evidence can be looked into to dislodge the documentary evidence. In view of the aforesaid Gift Deed, except Smt. Kanta, no one has any right, title and interest, whatsoever, in the said property and none of the parties can be allowed to make claim in the said property. The findings of the Ld. Trial Court qua this property suffer from no infirmity and this Court affirms the findings returned by the Ld. Trial Court qua this property. FINDINGS AND CONCLUSIONS OF THE COURT ON THE QUESTION OF LISPENDENCE The Ld. counsel for appellants has argued that certain portion of the Naiwara property has been sold during the pendency of the Appeal. As far as sale of Krishna Nagar Property, this Court has come to the conclusion that Smt. Kanta has absolute right, title and interest in the said property and none of the other parties have any right, title and interest in the said property. As far as Naiwara property, the purchaser, if any, would be bound by the principle of Lispendence and the sale in their favour would not affect the right, title and interest of other parties, as this Court has held that the said property is inalienable and the purchaser, if any, of the said property, would be bound by the decision of this case and the purchase in his/her favour would not be valid after the decision of this case. I have also profit to refer the celebrated Judgment of the RCA Nos. 31, 32 and 33/2016 Page ­ 96 of 102

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Hon'ble Supreme Court passed in Civil Appeal no. 1518 of 2013 titled as Thomson Press (India) Ltd. Vs. Nanak Builders & Investors P. Ltd. & Ors. decided on February 21, 2013. The paras no. 23 to 26 of this judgment are as under:­ "...23. It would also be worth to discuss some of the relevant laws in order to appreciate the case on hand. Section 52 of the Transfer of Property Act speaks about the doctrine of lis pendens. Section 52 reads as under:

"52. Transfer of property pending suit relating thereto.

- During the [pendency] in any Court having authority [within the limits of India excluding the State of Jammu and Kashmir] or established beyond such limits] by [the Central Government] [***] of [any] suit or proceedings which is not collusive and in which any right to immovable property is directly and specifically in question, the property cannot be transferred or otherwise dealt with by any party to the suit or proceeding so as to affect the rights of any other party thereto under any decree or order which may be made therein, except under the authority of the Court and on such terms as it may impose.

[Explanation - For the purposes of this section, the pendency of a suit or proceeding shall be deemed to commence from the date of the presentation of the plaint or the institution of the proceeding in a Court of competent jurisdiction, and to continue until the suit or proceeding has been disposed of by a final decree or order and complete satisfaction or discharge of such decree or order has been obtained, or has become unobtainable by reason of RCA Nos. 31, 32 and 33/2016 Page ­ 97 of 102

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the expiration of any period of limitation prescribed for the execution thereof by any law for the time being in force."

24. It is well settled that the doctrine of lis pendens is a doctrine based on the ground that it is necessary for the administration of justice that the decision of a court in a suit should be binding not only on the litigating parties but on those who derive title pendente lite. The provision of this Section does not indeed annul the conveyance or the transfer otherwise, but to render it subservient to the rights of the parties to a litigation. Discussing the principles of lis pendens, the Privy Council in the case of Gouri Dutt Maharaj v. Sukur Mohammed & Ors. AIR (35) 1948, observed as under:­ "The broad purpose of Section 52 is to maintain the status quo unaffected by the act of any party to the litigation pending its determination. The applicability of the section cannot depend on matters of proof or the strength or weakness of the case on one side or the other in bonafide proceedings. To apply any such test is to misconceive the object of the enactment and in the view of the Board, the learned Subordinate Judge was in error in this respect in laying stress, as he did, on the fact that the agreement of 8.6.1932, had not been registered."

25. In the case of Kedar Nath Lal & Anr. v. Ganesh Ram & Ors. AIR 1970 SC 1717, this Court referred the earlier decision (1967 (2) SCR 18) and observed:­ RCA Nos. 31, 32 and 33/2016 Page ­ 98 of 102

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"The purchaser pendente lite under this doctrine is bound by the result of the litigation on the principle that since the result must bind the party to it so it must bind the person driving his right, title and interest from or through him. This principle is well illustrated in Radhamadhub Holder vs. Monohar 15 I.A. 97 where the facts were almost similar to those in the instant case. It is true that Section 52 strictly speaking does not apply to involuntary alienations such as court sales but it is well­established that the principle of lis pendens applies to such alienations.(See Nilkant v. Suresh Chandra 12 I.A.171 and Moti Lal v.Karrab­ul­Din 24 I.A.170."

26. The aforesaid Section 52 of the Transfer of Property Act again came up for consideration before this Court in the case of Rajender Singh & Ors. v. Santa Singh & Ors. AIR 1973 SC 2537 and Their Lordship with approval of the principles laid down in 1973 (1) SCR 139 reiterated:

"The doctrine of lis pendens was intended to strike at attempts by parties to a litigation to circumvent the jurisdiction of a court, in which a dispute on rights or interests in immovable property is pending, by private dealings which may remove the subject matter of litigation from the ambit of the court's power to decide a pending dispute of frustrate its decree. Alienees acquiring any immovable property during a litigation over it are held to be bound, by an application of the doctrine, by the decree passed in the suit even though they may not have been impleaded in it. The whole object of the doctrine of lis pendens is to subject parties to the litigation as well as others, who seek to acquire rights in RCA Nos. 31, 32 and 33/2016 Page ­ 99 of 102

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immovable property which are the subject matter of a litigation, to the power and jurisdiction of the Court so as to prevent the object of a pending action from being defeated."

The Hon'ble Supreme Court in Civil Appeal no. 3486 of 2016 in the case titled as Narayan Versus Babasaheb & Ors. decided on April 5, 2016 has held as under:­ "When bare reading of the provision makes it very clear and unequivocally gives a meaning it was to be interpreted in the same sense as the Latin maxim says "dulo lex sed lex", which means the law is hard but it is law and there cannot be any departure from the words of the law."

RELIEF:

In view of the discussions, as adumbrated above, I hereby pass the following ::­ FINAL ORDER ­::

(a) The Regular Civil Appeal no. 33 filed by LRs of the appellant/ plaintiff Raj Narain Sharma and Regular Civil Appeal no. 32 of the appellant/ defendant no.7 Suresh Narain Sharma is hereby partly allowed in terms of this Judgment.

(b) The decree for declaration is hereby passed and it is held that property nos. 867 (old), 2353, 2354 & 2355 (New), situated at Dharam Pura, Delhi­110006 and its adjoining property no.

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868 (old), 2484 (New), Nai Wara, Delhi­110006 (referred to as the Naiwara Properties) are temple properties and are inalienable.

(c) The Decree for perpetual injunction is passed and it is hereby directed that both plaintiff, including the LRs of the plaintiff and defendants/respondents, including their LRs, are restrained from disposing off the said Naiwara properties, in any manner, either by sale, gift, Will or otherwise and restraining them from parting with the possession of the property or any portion thereof.

(d) Since defendant no.1 ­ Pt. Ram Narain Sharma has already expired and the plaintiff/ Raj Narain Sharma or his LRs have not sought amendment in the Plaint for seeking the decree of rendition of account against any other specific defendants, therefore, this relief is declined.

(e) The relief qua Property of Krishna Nagar, Delhi is also declined.

(f) The Regular Civil Appeal 31 of the appellant/ defendant no.7 Shri Suresh Narain Sharma is hereby dismissed as Shri Mahesh Narain Sharma (including his LRs), who was the plaintiff in the said case, has not sought any relief from this Court.

(g) The Parties shall bear their own respective costs.

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Decree­sheet in the Appeal be prepared accordingly, in terms of this Judgment.

The pending Applications are disposed off and decided in terms of the aforesaid Judgment.

Three sets of the Judgment have been prepared and each set has been signed in original and one set of the Judgment has been kept in each Appeal.

The copy of this Judgment may kindly be sent forthwith to the Ld. Trial Court alongwith the record of Trial Court.

Appeal file be consigned to record room after due compliance.

Announced in the open court on this 19th day of February, 2020.

(ARUN SUKHIJA) ADJ­07 (Central) Tis Hazari Courts, Delhi RCA Nos. 31, 32 and 33/2016 Page ­ 102 of 102