Tirath Jyotisar And Idol Of Lord Mahadev ... vs Kurukshetra Development Board on 19 December, 2013

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Punjab-Haryana High Court

Tirath Jyotisar And Idol Of Lord Mahadev ... vs Kurukshetra Development Board on 19 December, 2013

Bench: Surinder Gupta

IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH

Date of Decision : 19.12.2013

1. RSA No.3825 of 2005

Tirath Jyotisar and Idol of Lord Mahadev Ji of the Mandir Mahadev Ji and
Idols of other Lords
.......... Appellant
Versus
Kurukshetra Development Board, Kurukshetra & Ors.
...... Respondents
*****
2. RSA No.3826 of 2005

Present : Mr. Amar Vivek, Advocate and
Mr. Sandeep Kumar, Advocate
for the appellants.

Mr. S.C. Sibal, Sr. Advocate with
Mr. V.S.Rana, Advocate
for respondent No.1.

Mr. M.L. Sarin, Sr. Advocate with
Mr. Nitin Sarin, Advocate and
Ms. Ankita Sarin, Advocate
for respondent No.2.

****

SURINDER GUPTA, J.

This order shall dispose of two regular second appeals i.e. RSA No. 3825 & 3826 of 2005.

2. For brevity facts are being extracted from RSA No. 3825 of 2005.

Deepak Kumar 2013.12.21 17:01 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 2

3. Tirath Jyotisar, Idol of Lord Mahadev Ji, Idols of other Lords situated in the Temples, Samadies, Vat Virksha, Lake etc. situated at Tirath Jyotisar filed a suit for declaration and permanent injunction with consequential relief of mandatory injunction in the Court of Civil Judge (Sr. Divn.), Kurukshetra claiming the reliefs as follows :-

"(i) a decree for permanent injunction with consequential relief of mandatory injunction against the defendants no.1 to 4 restraining them to raise any construction over the portion of the plaintiffs land i.e. 137 Kanals- 19 Marlas in any manner and the defendants be permanently restrained to lease out any portion of the plaintiffs land to the defendant no.2 in any manner vide the impugned resolution dated 23.4.1997, 5.5.1997 and 30.5.1997 or any other such date and the operation of the lease deed/ lease letter dated 9.10.1996 be stayed during the pendency of the present suit and the defendants no. 1 to 4 permanently be restrained to cause in any manner any loss to the originality and sanctity to the holy and historical place i.e. Tirth Jyotisar in any manner;

(i-A) That a decree of declaration and permanent injunction consequential relief of mandatory injunction against the defendants be passed and the impugned unregistered lease deed memo No. K.D.B.-97/1447 dated 8.8.1997 and the impugned registered lease deed No. 5718/1 dated 26.3.1998 which are executed by the defendant no.1 as Lessor in favour of the defendant no.2 as Lessee for the Deepak Kumar 2013.12.21 17:01 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 3 period of 99 years are declared totally wrong, illegally, arbitrary, without any authority, without any registered resolution and without any Legal Necessity, without jurisdiction of the defendants and against the interest of plaintiff i.e. Tirth Jyotisar and others and the public at large and against the purposes for which the defendant no.1 was created vide notification dated 1st August, 1968 and this action of the defendants is without any right and title and against the right to life under Article 21 of the Constitution of India and it is liable to be set aside and it is not binding upon the plaintiff and his rights and the action of the defendant no.1 with the collusion of other defendants no. 2 to 4 be declared as illegal and wrong and the impugned unregistered lease deed dated 8.8.1997/Memo No. K.D.B.97/1447 and impugned registered lease deed no. 5718/1 dated 26.3.1998 are liable to be set aside.

(ii) further a decree of permanent injunction be passed against the defendants to raise any construction in the lake's portion in the Plaintiffs land i.e. 137 Kanals-19 Marlas and the defendants be restrained to cause any obstruction in the way of the coming and out going of the water in the lake and the holy tank in any manner;

(iii) That the defendants be permanently restrained not to dispossess in any illegal manner the Mohtmim of the Tirth Jyotisar from the Tirth Jyotisar in any manner and Deepak Kumar 2013.12.21 17:01 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 4 the defendants be permanently restrained not to cause any obstructions and restrictions in the performance of the religious duties by the Mohitmim of the Tirth Jyotisar, Idols of the temples situated at the Tirth Jyotisar, Samadhies etc. situated at the Tirth Jyotisar which the mohitmim is performing since the long time as mentioned in the plaint;

(iv) That a decree of the declaration against the defendants to the effect be passed that the entries made in the impugned Khasra Girdawaries since the date of change i.e. since the year 1988 in the column of possession till date are illegal and void and the entries wrongly incorporated in the impunged Jamabandies for the year 1989-90 in the column no.5 on the basis of these impugned Khasra Girdawaries entries and any other Jamabandi prepared thereafter and the entries in the Khasra Girdawaries in the column of possession be declared illegal, wrong, void, against the Financial Commissioner, Revenue Haryana, instructions, against the provisions of the Land Revenue Act, 1887 and not binding over the rights of the plaintiffs;

(v) That a decree of the declaration be passed that the name of the plaintiffs in the column no.5 of the possession is liable to be restored as recorded in the column no.5 of the Jamabandi entry for the year 1984-85 till date;

(vi) That a decree of the declaration be passed against the Deepak Kumar 2013.12.21 17:01 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 5 defendants to the effect that the resolution dated 23.4.1997, 5.5.1997 and 30.5.1997 and the lease deed dated 9.10.1996 are wrong, void and against the purposes for which the defendant no.1 was created by the defendant no.3 and all the actions and the resolutions in the favour of the defendant no.2 are to be declared illegal and wrong and not binding over the rights of the plaintiffs;

(vii) That a decree of the declaration against the defendants be passed that any constructions raised by the defendant no.2 by virtue of the above mentioned impugned resolutions are illegal and wrong and liable to be demolished and it is against the wishes of the plaintiffs and totally wrong and illegal over the plaintiffs land and any portion of the plaintiffs land i.e. lake etc;

(viii) That the defendants permanently be restrained not to demolish the Samadhies situated at the Tirth Jyotisar and in the lake portion of the Tirth Jyotisar in any manner;

(ix) That a decree of the declaration be passed that the creation of the alleged 'Cultural Centre' over the plaintiffs land portion is totally illegal and wrong and against the purposes for which the defendant no.1 was created by the defendant no.3;

(x) That a decree of the declaration be passed that the defendant no.2 i.e. private society has no right to raise any constructions over the portion of the plaintiffs land Deepak Kumar 2013.12.21 17:01 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 6 in any manner and the defendant no.2 has no right to destroy the originality of the plaintiffs land in any manner as mentioned in the plaint and the defendant no.2 with the collusion of the other defendants has no right to cause loss and obstructions in the peaceful and legal rights of enjoyment of the plaintiffs over the plaintiffs land by the plaintiffs; and the general public and the visiting persons at the Tirth Jyotisar etc.;

(xi) That a decree of mandatory injunction be passed against the defendants for the removal of all the illegal and wrong constructions over the plaintiffs land with immediate effect;

(xii) That a decree of permanent injunction and mandatory injunction be passed against the defendants and the defendants be directed to restrain themselves from doing all such type of illegal acts, resolutions, lease deeds etc. for the encroaching over the land and rights of the plaintiffs in the future; operation of the impugned resolution dated 23.4.1997, 5.5.1997 and 30.5.1997 be stayed with immediate effect in the meantime during the pendency of the present suit till the disposal of the same in the interest of justice and equity;

(xiii) That all the actions of the defendants to encroach upon the land and rights of the plaintiffs land be declared as illegal, null and void and liable to be set aside;

(xiv) Any other relief to which the plaintiffs are found entitled Deepak Kumar 2013.12.21 17:01 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 7 be granted to the plaintiffs in the interest of justice and equity;"

The suit was filed by Swami Haranand Saraswati Chela Swami Satyanand Saraswati as Mohitmim (Manager) of Tirath Jyotisar and other temples, Vat Virksha, lake etc. located there. The dispute pertains to land bearing khasra No. 147 (137 Kananl-19 Marlas) recorded in the revenue record as Gair Mumkin, Tirath Jyotisar and lake. The ownership and possession of this land was earlier recorded in the name of the Gram Panchayat. Vide mutation No. 812 dated 7.8.1964 it was recorded in the name of Tirath Jyotisar and in the column of possession as 'Khud Kast' (self cultivation). At later stage the Gram Sabha Jyotisar challenged the mutation but the matter was decided in favour of Tirath Jyotisar vide order of the Collector, Kurukshetra dated 29.11.1988 (Ex. P-7) The plea raised in para 4 of the plaint will illustrate the claim of the plaintiff, which is reproduced as follows :-

"That the 'Tirth Jyotisar' is the holy place where the Lord Krishna delivered the holy message of Gita To the World under the 'Vat Virksha' at the time of 'Mahabartha' about 5000 years ago.

That at the 'Tirth Jyotisar' there are Smadhies of Swami Satyanand Saraswati, Baba Sita Ram Ji; Mata Brahma Mayee Saraswati and Baba Chandan Giri Ji which are situated there since the long time and the plaintiff is the Mohitmim of these Samadhies etc. and the Tirth Jyotisar, Vat Virksha, Idols of the temples, and the lake etc. since a long time. That prior to the present Mohitmim of the Tirth Jyotisar, the Guru Ji of Swami Haranand Saraswati was the Mohitmim of the Tirth Jyotisar etc. more prior to the year 1947 till his death i.e. 25.09.1963 and after the death of Guru Ji as mentioned above(i.e. Swami Deepak Kumar 2013.12.21 17:01 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 8 Satyanand Saraswati Ji) the present plaintiff i.e. Swami Haranand Saraswati Chela Swami Satyanand Saraswati is the Mohtimim of the Tirth Jyotisar continuously till today and his name is recorded in the column no.5 of the Jamabandhi for year 1984-85 i.e. Annexure P-2 and the other revenue records entries are in favour of the plaintiff.

That the Mohitmim of the Tirth Jyotisar etc. i.e. plaintiff has no adverse interest against the Tirth Jyotisar etc. That the details of the measurements are mentioned in the field map(i.e. Shajra) and the same is Annexure P-6.

That the Lake is situated at the Tirth Jyotisar since a long time and it is towards the Western and Northern Side of the Tirth Jyotisar as shown in the field map i.e. Annexure P-6."

The Mohitmim of Tirth Jyotisar is managing all the properties of plaintiff and has no interest adverse to the interest of the plaintiff, a juristic person. Kurukshetra Development Board, Kurukshetra (hereinafter referred to as 'the Board') was created by the Government of Haryana vide gazette notification dated 1.8.1968 to undertake over all development of Kurukshetra including its landscaping, renovation of historical places, tanks, provision of facilities to the pilgrimages and tourists etc. with the funds and grants made available to the Board by the State of Haryana. Swami Haranand being the Mohitmim had been performing all the religious duties, ceremonies and earlier, his Guru Ji Swami Satyanand Saraswati was performing these duties. The amounts received from donation were being spent on the development of Tirath Jyotisar. They have also maintained a visitors register wherein the prominent visitors to Tirath Jyotisar have been recorded entries on their visit to the Tirath.

In the year 1988 the entries of possession of the suit land were changed in the name of Kurukshetra Development Board against the Deepak Kumar 2013.12.21 17:01 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 9 instructions issued by the Financial Commissioner Revenue, Haryana and these entries were also incorporated in the jamabandi for the year 1989-90. On reading a news in a English Newspaper on 21.8.1997 the Mohitmim came to know about the "Cultural Centre" being developed over six acre of land of plaintiff by defendant No.2 [International Society for Krishna Consciousness (ISKCON)]. Further enquiry revealed that a lease deed dated 9.10.1996 had been executed by the Kurukshetra Development Board in favour of ISKCON for a period of 99 years. The land leased out (six acre) is towards the Western and Northern side of the land of plaintiff and is also part of the lake. Even the portion of the lake where the water has been flowing has been leased out by defendant No.1 in favour of defendant No. 2, thereby obstructing the flow of water. This lease deed is without any authority vested in 'the Board' and as such is not binding over the rights of the plaintiff. The Lake at Tirath Jyotisar add to the beauty of this place. The construction by ISKCON shall cause obstruction and stop the flow of water from the holy tank and thereby affect environment and ecological balance and is also against the interests of the appellant.

Besides taking certain preliminary objections, Kurukshetra Development Board alleged its possession over the suit property and claimed that it is managing the suit property and the areas near Tirath Jyotisar. It has spent lakhs of rupees on the construction of a gate, shops, lake, steps, floor etc. Swami Haranand Saraswati is not the Mohitmim/Manager of the Tirtah Jyotisar and has no authority to file the present suit. He, in fact is managing the temples located there shown in portion marked ABCDE in the site plan (Ex. D-1). The Board is looking Deepak Kumar after the maintenance, security, electric, water supply and comforts of the 2013.12.21 17:01 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 10 pilgrimage who visit there. All the development works have been carried out by the Board at the Tirath. Six acres of land was leased out to ISKCON for 99 years for construction of project titled - 'Glory of the Kurukshetra ISKCON Cultural Centre' with prior approval of the Government. After earmarking the lake has been redesigned in such a way that there will be no obstruction to the flow of water in the lake.

In the separate written statement filed by ISKCON, the averments made in the plaint have been contested, controverted and the plea taken by the Kurukshetra Development Board have been supported and reiterated.

Pleadings of the parties led to the framing of following issues :-

"1. Whether the plaintiffs are Juristic Persons i.e. Tirath Jyotisar and is owner in possession of land measuring 137 kanals 19 marlas as fully described in para no. 3 of the plaint?OPP

2. Whether the resolution dated 23.4.1997, 5.5.1997 and 30.5.1997 and lease deed dated 9.10.1996 are illegal, wrong, void and not binding on the rights of plaintiffs?OPP

3. Whether suit is not maintainable in its present form?OPD

4. Whether plaintiff has no locus standi to file and maintain the present suit?OPD

5. Whether the suit is bad for mis-joinder and non-joinder of necessary parties?OPD

6. Whether the plaintiff has no cause of action to file and maintain the present suit ?OPD

7. Whether the plaintiff is estopped by his own act and conduct to file and maintain the present suit ?OPD

8. Whether the suit is not properly valued for the purpose Deepak Kumar 2013.12.21 17:01 of Court fee and jurisdiction?OPD I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 11

9. Whether the suit is time barred?OPD

10. Whether the plaintiff has concealed the true and material facts from the Court ?OPD

11. Whether the suit is bad for mis-joinder of cause of action?OPD

12. Whether the suit is false and frivolous and defendants are entitled to special costs under Section 35 CPC ? OPD

13. Relief."

The trial Court recorded the findings on issues No. 1 to 11 in favour of the plaintiff while issue No. 12 was found infructuous. The suit of the plaintiff was partly decreed as follows :-

"Suit of plaintiff is partly decreed to the extent that plaintiff is in possession over the land measuring 26 kanals 14 marlas bearing khasra no. 200 (0-16), 147/2(2-0), 215(11-9), 215/1(1-

11) and 147/1(10-18), belonging to Jyotisar Tirath and to that extent he can maintain his possession and to that extent impugned entries made in favour of K D B are null and void and not binding upon the rights of plaintiff. But the suit of plaintiff fails to the extent of land bearing khasra no. 147 measuring 137 kanals 19 marlas. There is no orders as to costs. Decree-sheet be prepared accordingly and file be consigned to record room after due compliance."

The Kurukshetra Development Board and Tirath Jyotisar both filed appeals against the judgment and decree of the trial Court, which was decided by the Addl. District Judge (Adhoc), Fast Track Court, Kurukshetra with the observations as follows :-

"15. In view of the aforesaid, it is held that Tirath Jyotisar is a juristic person and is owner of suit land measuring 137K-19M and further KDB is manager and in possession of suit land except portion shown in red ABCDE in Deepak Kumar 2013.12.21 17:01 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 12 Ex. D1 as admitted by KDB. The entries in favour of KDB in Jamabandi of year 1989-90 to the contrary are also held to be bad and are liable to be set aside. The findings of the learned trial court decreeing the possession of plaintiff in respect of 26 Kanals 11 Marlas comprised in khewat No. 52, 53 and 480, khatoni No. 59, 60 and 608 and khasra No. 215/1, 147/2, 200, 250 and 147/1 which is not part of suit land are set aside. However, Swami Haranand Saraswati is held entitled to injunction qua possession only in respect of the suit land shown in red as ABCD in Ex. D1. It is further held that the lease deed in favour of ISKCON and also the resolutions dated 23.4.1997, 5.5.1997 and 30.5.1997 are valid.

16. xx xx xx

17. In view of the above discussion, the civil appeal No. 157 of 2005 titled Tirath Jyotisar Versus Kurukshetra Development Board, Kurukshetra etc. is partly accepted and the suit is partly decreed to the extent that the Kurukshetra Development Board is restrained from dispossessing Swami Haranand Saraswati from portion shown in red colour as ABCD in Ex. D1 in respect of land measuring 137 kanals 19 marlas situated in khasra No. 147, khewat No. 714, Khatoni No. 1001 as per jamabandi for year 1984-85 whereas civil appeal No. 168 of 2005 titled Kurukshetra Development Board Versus Tirath Jyotisar etc. is also partly accepted and the decree to the extent that plaintiff is in possession of land measuring 26 kanals 14 marlas bearing khasra No. 200 (0-16), 147/2(2-0), 215(11-5), 215/1(1-11) and 147/1(10-18) belonging to Tirath Jyotisar and to that extent he can maintain his possession is set aside and the suit is partly decreed to the extent that the Kurukshetra Development Board is restrained from dispossessing Sawami Haranand Saraswati from portion shown in red colour as ABCD in Ex. D1 in respect of land measuring 137 kanals 19 marlas situated in khasra No. 147, khewat No. 714, khatoni No. 1001 as per jamabandi for year 1984-85 except in due Deepak Kumar 2013.12.21 17:01 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 13 course of law. Ex. D1 be made part of the decree."

Counsel for the parties have been heard and the record perused with their assistance.

Admittedly, the suit land measuring 137 Kanal-19 Marlas is owned by Tirath Jyotisar and is also so recorded in the revenue record. The substantial question of law which arise for consideration in these appeals are as follow:-

1. When the suit land measuring 137Kanal-19 Marlas is owned by Tirath Jyotisar, Kurukshetra, which is a juristic person, whether the suit could be dismissed in view of the plea of Kurukshetra Development Board i.e. respondent No.1 claiming possession of the suit land?

2. Whether Kurukshetra Development Board was competent to alienate the suit land or any portion of it or exercise any title over the suit land?

3. Whether the claim of Kurukshetra Development Board regarding the management of the land of Tirath Jyotisar without being so authorised by Court or any authority is tenable?

The trial Court elaborately discussed the facts of the case and the evidence and decreed the suit of the plaintiff for 26 Kanal-14 Marlas but dismissed the same with regard to the suit land measuring 137 Kanal-19 Marlas. The present suit has been filed by Tirath Jyotisar and other idols in the temples over the suit land through Mohitmim Swami Haranand Saraswati. The plaintiff is a juristic person and not Swami Haranand Deepak Kumar 2013.12.21 17:01 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 14 Saraswati but the trial Court at various places in the judgment made reference to the plaintiff under the impression as if Swami Haranand Saraswati is the plaintiff. Such reference is found in paras 7, 11, 15, 22, 29, 31, 36, 37 and at many other places. It appears that while discussing the facts it was by mistake that Swami Haranand Saraswati has been described as plaintiff. While discussing the fact qua the possession over the suit land, reference has been made towards the possession of 'Kurukshetra Development Board' or 'Swami Haranand'. This mistake has, however, not affected the merits of the case.

Before proceeding further it will be relevant to take note of the fact as to what is the status of Swami Haranand Saraswati and the Kurukshetra Development Board in the entire matter. Swami Haranand Saraswati has filed the suit in his capacity as Mohitmim while the plea of Kurukshetra Development Board is that it is looking after the development and upkeep of Tirath Jyotisar. Both are not challenging the possession and title of the suit property which vests with the plaintiff-'Tirath Jyotisar'. Both claimed that they are looking after the suit property for and on behalf of 'Tirath Jyotisar' for its proper management and facilities to the pilgrims/visitors to the place.

The first question which require examination is as to whether there is any substance in the plea raised by the Mohitmim or the Board. Whether both have ever been legally authohrised to manage and look after the suit property.

Before 7.8.1964 the suit land vested with Gram Panchayat, Jyotisar but in column No. 6 it was recorded as Gair Mumkin Tirath Jyotisar. Vide mutation No. 864 dated 7.8.1964 it was transferred in the Deepak Kumar 2013.12.21 17:01 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 15 name of Tirath Jyotisar and in the column of possession it was recorded a s Maqbuja Malak (possession of owner). This entry continued in the jamabandi for the year 1984-85. In the jamabandi for the year 1989-90 in column No. 5 the possession was recorded as 'Maqbuja Malak', Kurukshetra Vikas Mandal, however, in the column of title 'Tirath Jyotisar' continued to be recorded as owner. Similar change took place in the entries in khasra- girdawari for the year 1989 onwards. Prior to 1989 in the jamabandi 'Tirath Jyotisar' was recorded to be in possession of the land measuring 137 Kanal- 19 Marlas which comprised of Tirath Jyotisar and a lake. Swami Haranand or his Guru Swami Satyanand Saraswati were never in possession of the suit land in their capacity as Mohitmim/Manager/ Caretaker. The possession of 'Swami Haranand' was on specific portion as shown in the site plan Ex. D1 where the temples, rooms etc. exists and his possession has been upheld by learned First Appellate Court.

Tirath Jyotisar is a holy place of great religious and historical importance associated with divinity, grace and holiness of Lord Krishna. As per belief Lord Krishna delivered the holy massage of Gita to the world under the 'Vat Vorksha" existing at the site at the time of 'Mahabarta' about 5000 years ago. It is a solemn place closely associated with Lord Krishna and is revered as most venerated tirtha of Kurukshetra, visited by thousands of pilgrimage, visitors to pay obeisance.

The plaintiff has alleged that there are temples, Samadhies and a lake at the disputed site.

Here it is pertinent to take note of the fact that this place is not a Dera of any sect, cult or Guru. Mohitmims are merely the caretakers of a juristic person like temple or other religious places etc. The construction of Deepak Kumar 2013.12.21 17:01 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 16 a Samadhi of a Mohitmim or Guru may have some relevance at a place like 'Dera' but if erected over a holy place like 'Tirath Jyotisar' a place of great heritage, utmost reverence and great religious importance, it will effect its sanctity, significance and may also fall within the parameters of 'mismanagement'. The existence of Samadies over the suit property, is required to be looked into by the State to maintain the sanctity of this 'Tirath Joytisar'.

As discussed above, Swami Haranand in his capacity as Mohitmim has not been able to produce any documentary evidence to show that he has any concern with the suit property, which admittedly is being looked after by Kurukshetra Development Board. The Board came into existence vide notification issued by Local Government Department, Haryana on 1.8.1968 (Ex. A). In the absence of any evidence on record that 'Swami Haranand' or his Guru were ever appointed Mohitmim to look after the management of the suit land, the trial Court as well as the first Appellate Court have committed no error of law or fact while returning the findings in this regard against Swami Haranand.

The next question which arises in this case is as to whether the Kurukshetra Development Board has any legal authority to manage the land of Jyotisar Tirath or was ever entrusted with the duty to maintain the same.

Kurukshetra Development Board came into existence vide Haryana Government notification dated 1.8.1968 (Ex. A) for the purpose specifically mentioned therein as follows :-

"2. This Board shall be autonomous in character and its functions will generally be to undertake the over-all development of Kurukshetra including its landscaping, Deepak Kumar 2013.12.21 17:01 renovation of historical places and tanks and provision of I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 17 facilities to pilgrims and tourists etc."

The Memorandum of Association of Kurukshetra Development Board specify its objects as follows :-

"(i) to undertake the overall comprehensive development of the Kurukshetra area, including its landscaping renovation of historical buildings and tanks.

(ii) provision of sheds and huts etc. for pilgrims.

(iii) provision of civic amenities for pilgrims.

(iv) provision of suitable accommodation arrangements for tourists.

(v) Maintenance of cleanliness at all the sacred places throughout the year.

(vi) to make rules and bye-laws for the conduct of the affairs of the Board and to, add to, amend, vary or rescind them from time to time with the approval of the State Government.

(vii) To acquire and hold property provided that prior approval of the State Government will be obtained for the acquisition of immovable property.

(viii) To deal with any property belonging to or vested in the Board in such manner as the Board may deem fit for advancing its objectives provided that prior approval of the State Govt. is obtained for the transfer of any immovable property."

As per clause (4) of the Memorandum of Association the Board is also competent to enter into an agreement with the Local Bodies in whose areas the development may be contemplated. The notification dated 1.8.1968 and Memorandum of Association of the Board clearly spell out the limited authority and purpose of its creation. This Board was created with the object of undertaking the development of Kurukshetra, its landscaping, renovation of historical places, tanks and to make the provisions of facilities Deepak Kumar for the pilgrims and tourists who come to visit various places of historical 2013.12.21 17:01 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 18 and religious importance in Kurukshetra. The Government provides funds to Kurukshetra Development Board, which in turn are spent for the purpose for which the Board has been created. If the Board is doing some development work landscaping etc. and providing facilities to the pilgrims, it cannot be taken that the title of the property , temples, Sarovar etc. has vested with it. The Board cannot transgress its domain or establish its title over the religious property like 'Tirath Jyotisar' adverse to its interest. There is no doubt with regard to the fact that Kurukshetra Development Board has spent lakhs of rupees on the maintenance, upkeep and beautification of lake and for development of the surrounding areas, but in the process Board ha s exceeded its jurisdiction and has started leasing out the land of 'Tirath Jyotisar' to various individuals like Banks, Tourism Department, ISKCON etc. The land of Tirath Jyotisar do not vest in Kurukshera Development Board. The State Government has never entrusted the Board with any authority to enter into any transaction with regard to the land of 'Tirath Jyotisar'. Consequently, all the transactions of lease entered into by Kurukshetra Development Board have no sanctity in the eyes of law.

Learned counsel for the appellant has argued that the suit land vests in Tirath Jyotisar and being a juristic person it is competent to file the present suit. Haranand may not be proved to be Mohitmim of the plaintiff still being a person who has been performing Pooja, Archana and other religious ceremonies of Jyotisar is competent to file the suit on behalf of the plaintiffs to highlight the mismanagement of plaintiff's property and interference with its title over suit land by the respondent No.1.

The land of Jyotisar was earlier vested in Gram Deepak Kumar Panchayat. In the year 1964, it was transferred in the name of 'Tirath 2013.12.21 17:01 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 19 Jyotisar'. No trust, manager, mohtmim or representative to look after the land of the plaintiff was ever nominated.

Swami Haranand is not proved to be duly appointed Mohitmim to look after the suit property but this fact is not denied that he as Mohitmim had been performing 'Pooja' and other religious ceremonies in the temples situated at Tirath Jyotisar which comprise not only of the suit land but also all other land. Being a devout Swami Haranand was competent to file the present suit on behalf of the 'Tirath Jyotisar' to the extent he challenges the illegal acts of respondents.

Learned counsel for the respondents has argued that it is the Kurukshetra Development Board, which is in possession of the suit property and is looking after the entire management, upkeep, beautification, facilities to the pilgrimage and the visitors to that place. It is providing the basic facilities like lighting, water supply, pavements, maintenance of lake, white wash and maintenance of the temples existing there. Being in possession, Kurukshetra Development Board was competent to utilise the land of plaintiff for the purpose to which it is dedicated. It has not gone beyond its scope of authority while executing the lease deed in favour of ISKCON, Tourism Department and other individuals.

It has been argued that in view of the concurrent findings of the learned Trial Court and the first Appellate Court, this Court in regular second appeal cannot interfere with the findings of fact recorded by the learned Trial Court and the first Appellate Court. Reliance has been placed on the observations of the Hon'ble Supreme Court in the case of Deity Pattabhiramaswamy v. S. Hanymayya and others, AIR 1959 Supreme Deepak Kumar Court 57, V. Ramachandra Ayyar and another v. Ramalingam Chettair 2013.12.21 17:01 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 20 and another, AIR 1963 SC 302, Madamanchi Ramappa and another v. Muthaluru Bojjappa, AIR 1963 SC 1633, Santosh Hazari v. Purushottam Tiwari (deceased) by LRs., (2001)3 SCC 179, Gurdev Kaur and others v. Kaki and others, (2007) 1 SCC 546 and Dharam Singh v. Karnail Singh and others, (2008) 9 SCC 759.

There is no dispute with regard to the nature and scope of interference in the regular second appeal by this Court. No finding of fact recorded by the trial Court or the appellate Court requires to be interfered for the purpose of deciding this appeal. The trial Court and the appellate Court have held that Swami Haranand has failed to prove his possession over the suit land. This finding is based on proper appreciation of evidence and as such requires no interference. The first appellate Court has held that the Board is looking after the suit land to provide basic amenities to the visitors to this place and for the maintenance and upkeep of the lake and its surroundings. The Board has no individual vested right, title or interest in the suit land. The Board cannot travel beyond the scope of the notification dated 1.8.1968 and the objectives incorporated in its Memorandum of Association. The Board is working for a very limited purpose within the parameters of its functions as incorporated in the notification dated 1.8.1968. The Board has never claimed its possession to the exclusion of the owner i.e. 'Tirath Jyotisar' or adverse to the interest of plaintiff. The citations referred to by learned counsel for the respondents in no manner help in the matter of decision of substantial questions of law as framed in this appeal. Learned counsel for the respondents has not been able to point out any authority provided by the State Government, provision of law or document, which vest 'the Board' with the right to manage the suit property Deepak Kumar 2013.12.21 17:01 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 21 and to enter into any transaction of lease etc. in favour of the Tourism Department respondent No.2 or any other person. The Board cannot transgress its authority provided under the Government notification dated 1.8.1968. State Government has not created title of the Kurukshetra Development Board in any of the historical or religious place located at Kurukshetra.

Learned counsel for the respondents have argued that the possession of the suit land is admittedly of the Board. The plaintiff has not sought the possession of the suit land from the Board as such this suit is not maintainable. Reference has been placed on the observations in the case of Ram Saran and another v. Smt. Ganga Devi AIR 1972 SC 2685, Vinay Krishna v. Keshav Chandra and another, AIR 1993 SC 957 and Union of India v. Ibrahim Uddin and another, (2012) 8 SCC 148.

The observations in the above referred citations are of no assistance to the respondents. The case projected by respondent No.1 is that it is managing, maintaining and developing 'Tirath Jyotisar' as per the duties entrusted to it by the State Government vide notification dated 1.8.1968. The Board has never been legally entrusted the duty of a Manager or Caretaker of the suit land. Even if the status of the Board be taken as a Manager/Caretaker, still the possession of the Board is for and on behalf of the plaintiff and not against the plaintiff. The Board has challenged the possession of Swami Haranand over the suit property and not of 'Tirath Jyotisar'. If the plea advanced by learned counsel for the respondents is accepted, in that event the authority of the Board will extend to all the historical places and tanks located at Kurukshetra. This suit, as such, is not barred. In the citations referred to by the learned counsel for the Deepak Kumar 2013.12.21 17:01 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 22 respondents, the facts were altogether different and in neither of the case the possession of defendants was over the property of a 'juristic person' in the capacity as Mohitmim/Manager or Caretaker. The State Government has specifically entrusted the job of making provisions of facilities to pilgrims and tourists at Kurukshetra to 'the Board'. If it has been maintaining the lake, its surroundings, making arrangements of electricity, water supply etc. at 'Tirath Jyotisar', it does not amount to its exclusive possession over the suit property. The execution of lease deed etc. qua the property owned by the plaintiff is beyond the scope and authority of the Board and is illegal. The execution of a lease deed for a fixed terms of 99 years is virtually the transfer of title of land in favour of respondent No.2. The most unfortunate part of this transaction is that even part of lake existing at the spot as depicted in plan Ex.D1 has also been leased out to raise construction of building by respondent No.2. The act of the Board is not only illegal, unethical, beyond jurisdiction but also sacrilegious, tempering with the ecology, heritage, importance and sanctity of 'Tirath Jyotisar'.

Facts, circumstances and law on the point, as discussed above, lead this Court to draw a definite conclusion that the trial Court and the first Appellate Court have committed grave error of law while dismissing the suit of the plaintiff. The fact which appear to have prevailed in the mind of the Courts below was that the plaintiff is Swami Haranand and not 'Tirath Jyotisar'.

The state of Haryana has provided no authority to the Board vide notification dated 1.8.1968 to alienate any portion of the suit land belonging to Tirath Jyotisar or to exercise its title over the land of plaintiff. The Board cannot travel beyond the purpose for which it has been Deepak Kumar 2013.12.21 17:01 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 23 constituted. All the substantial questions of law, as such are decided in favour of the appellant 'Tirath Jyotisar'. Both the regular second appeals stand partly allowed and the judgment and decree of the learned first Appellate Court is modified to the extent as follows :-

(i) Tirath Jyotisar is the owner in possession of land bearing Khasra No. 147 measuring 137 Kanal-19 Marlas i.e. the suit land.

(ii) Kurukshetra Development Board being an autonomous body created by State of Haryana can take steps for overall development, landscaping, renovation of Tirath Jyotisar, water tank/lake located there and also to make provision for facilities of the pilgrims and tourist but it has no authority to lease out the land of the plaintiff. The lease deed dated 26.3.1998 executed by the Board in favour of 'ISKCON' qua six acres of land of the plaintiff for a period of 99 years is set aside and respondent No.2 is restrained from raising any construction over this land.

(iii) There is no legally constituted Mohitmim/Manager or Caretaker of the suit property as such the State of Haryana shall take its control for the purpose of administration, management and its maintenance and constitute an Authority/Society/Trust comprising of prominent persons in the field, State officials and residents of the area to look-after the management of the suit property which is a holy place of great religious importance. Kurukshetra Development Board or its Deepak Kumar 2013.12.21 17:01 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 24 members may also be nominated as members of the trust/society or authority constituted by the State for this purpose. The Society/Trust or authority so constituted by the State shall take control of the property/assets of the plaintiff 'Tirath Jyotisar' and make dedicated efforts to upgrade the glory of the place and the belief of the people in this place. It shall maintain up to date accounts of income, donations etc. received by 'Tirath Jyotisar' and may induct tenants, receive rent of any shops/commercial ventures already in existence over the suit property and to maintain and develop the same. It will take all steps to maintain the environment, ecology, sanctity and historical importance of this holy place and refrain from doing any such act which will be detrimental to the glory and importance of this place.

(iv) The possession of the portion reflected as ABCD in the site plan Ex. D1 as that of Swami Haranand Saraswati was in his capacity as Mohitmim. The State shall not interfere in the status of the Mohitmim and his capacity to manage the said portion on behalf of the juristic person, except in due course of law.

Chief Secretary, Government of Haryana shall take immediate steps for compliance of the directions above within a period of two months of the receipt of copy of this order. In the meanwhile, till the trust/society/authority is constituted by the State, Deputy Commissioner, Kurukshetra shall take control of the suit land and other assets of plaintiff Deepak Kumar 2013.12.21 17:01 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh RSA No.3825 of 2005 25 for its proper maintenance. Copy of this judgment be sent to Chief Secretary, Government of Haryana and Deputy Commissioner, Kurukshetra, for compliance.

(SURINDER GUPTA) JUDGE 19.12.2013 'Satyawan'/deepak Deepak Kumar 2013.12.21 17:01 I attest to the accuracy and integrity of this document which has been signed by the Hon'ble Bench High Court, Chandigarh

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