Madhya Pradesh High Court
Haribai & Ors. vs Deo Laxmi Narayan & Ors. on 18 December, 2023
Author: Dwarka Dhish Bansal
Bench: Dwarka Dhish Bansal
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE DWARKA DHISH BANSAL
FIRST APPEAL No. 252 of 1990
BETWEEN:-
1. HARI BAI, W/O HAKAM SINGH, AGED
ABOUT 20 YEARS, R/O SAGAURIYA,
TAHSIL GADARWARA, DISTRICT
NARSINGPUR (M.P)
2. RAM SEWAK, S/O MIHILAL BRAHMIN,
AGED ABOUT 19 YEARS, R/O SAGAURIYA,
TAHSIL GADARWARA, DISTRICT
NARSINGPUR (M.P)
3. GENDALAL (DELETED)
4. RAJ KUMAR, S/O MIHILAL BRAHMIN,
AGED ABOUT 19 YEARS R/O SAGAURIYA,
TAHSIL GADARWARA, DISTRICT
NARSINGPUR (M.P)
5. DWARKA PRASAD, S/O RAMDEWAK AGED
ABOUT 9 YEARS (MINOR), THROUGH
NEXT FRIEND RAMEWAK AGED ABOUT 22
YEARS, R/O SAGAURIYA, TAHSIL
GADARWARA, DISTRICT NARSINGPUR
(M.P)
6. SHYAM SUNDAR, S/O PHOOCHAND
BRAHMIN, AGED ABOUT 37 YEARS, R/O
SINGHPUR TAHSIL AND DISTRICT
NARSINGPUR, (M.P)
7. KASTURI BAI, W/O BABULAL SAHU, AGED
ABOUT 50 YEARS, R/O NIWARI, TAHSIL
KARELI, DISTRICT NARSINGPUR, (M.P)
8. RAM DAYAL THROUGH HIS LRS.
8(A) SMT. PHULA BAI, W/O RAMDAYAL, AGED
ABOUT 50 YEARS,
2
8(B) RAVISHANKAR, AGED 35 YEARS.
8(C) LEKHARAM, AGED 24 YEARS.
8(D) DHANIRAM, AGED 22 YEARS.
8(E) SMT. BETI BAI, AGED 30 YEARS.
8(F) SMT. JANKIBAI, AGED 18 YEARS.
[ALL R/O NIWARI, TAHSIL KARELI,
DISTRICT NARSINGPUR M.P]
9. SHANKARLAL, S/O JALAM CHAMAR,
AGED ABOUT 35 YEARS, R/O BARHA,
TAHSIL KARELI, DISTRICT NARSINGPUR
(M.P)
10. KADHORI, S/O RATAN CHAMAR, AGED
ABOUT 32 YEARS, R/O BARHA, TAHSIL
KARELI, DISTRICT NARSINGPUR (M.P)
11. GINDA, S/O MUKUNDI CHAMAR, AGED
ABOUT 10 YEARS, THROUGH NEXT
FRIEND FATHER MUKUNDI CHAMAR,
AGED ABOUT 23 YEARS, R/O BARHA
(CHHOTA), TAHSIL KARELI, DISTRICT
NARSINGPUR (M.P)
12. SIYARAM, S/O HARCHAND BRAHMIN,
AGED ABOUT 32 YEARS, R/O KHIRIYA,
TAHSIL & DISTRICT NARSINGPUR (M.P)
.....APPELLANTS
(SHRI R.P. AGRAWAL - SENIOR ADVOCATE ASSISTED BY SHRI SHEERSH
AGRAWAL - ADVOCATE)
AND
1. DEO LAXMI NARYAN JI, VILLAGE
KHIRIYA, TAHSIL & DISTRICT
NARSINGHPUR, THROUGH GUARDIAN
AD-LITEM BEN PRASAD, S/O
KHARAGRAM BRAHMIN, VILLAGE
KHIRIYA, TAHSIL & DISTRICT
NARSINGHPUR (M.P)
3
2. BENI PRASAD, S/O KHARAGRAM
BRAHMI, VILLAGE KHIRIYA, TAHSIL &
DISTRICT NARSINGHPUR (M.P)
3. TIRATH PRASAD (DELETED)
4. BAIRANG DAS (DELETED)
5. DHARMADAS, S/O GANJAN PRASAD,
AGED ABOUT 40 YEARS,
6. DAYARAM, S/O GANJAN PRASAD AGED
ABOUT 28 YEARS.
7. RAM SUJAN, S/O GANJAN PRASAD,
ABED ABOUT 25 YEARS.
8. LEKHRAM, S/O GANJAN PRASAD, AGED
ABOUT 21 YEARS.
9. HALKE PRASAD, S/O BRINDAVAN
BRAHMIN, AGED ABOUT 30 YEARS.
10. MOOLCHAND, S/O PREM LODHI AGED
ABOUT 45 YEARS.
11. SAMAR SINGH, S/O DULICHAND
LODHI, AGED ABOUT 36 YEARS.
12. GOVIND PRASAD SHARMA, S/O
MUNNALAL BRAHMIN, AGED ABOUT 36
YEARS.
[NO.4 R/O SAS-BAHU AND NO.12 R/O
VILLAGE AWARIYA TAHSIL KARELI
DISTRICT NARSINGHPUR M.P]
[NO.5 TO 11 R/O VILLAGE KHIRIYA
TAHSIL KARELI, DISTRICT
NARSINGHPUR M.P]
13. RAM SEWAK, S/O AMBIKA CHARAN
BRAHMIN UPDHYAY, R/O KHIRIYA,
TAHSIL KAREL, DISTRICT
NARSINGHPUR (M.P)
14. NIRANJAN, S/O SUMAR SINGH RAJPUR,
AGED ABOUT 35 YEARS.
15. CHHOTELAL (DELETED)
16. KEERAT SINGH, S/O PRASADI KURMI
AGED ABOUT 26 YEARS.
4
[NO.14 TO 16 OCCUPATION
CULTIVATOR, ALL R/O BEENER TAHSIL
KRELI DISTRICT NARSINGHPUR M.P]
17. RAMRATAN KAURAV, R/O VILLAGE
GOBARGAON, TAHSIL KARELI,
DISTRICT NARSINGHPUR (M.P)
18. TARACHAND KAURAV, S/O RAM LAL
KAURAV, AGED ABOUT 70 YEARS, R/O
VILLAGE GOBARGAON, TAHSIL
KARELI, DISTRICT NARSINGHPUR
(M.P)
19. THE STATE OF MADHYA PRADESH,
THROUGH REGISTRAR PUBLIC TRUST
& COLLECTOR, NARSINGHPUR (M,P)
.....RESPONDENTS
(BY SHRI A.P. SINGH -ADVOCATE FOR RESPONDENT 1)
__________________________________________________________________
Reserved on : 08.11.2023
Pronounced on : 18.12.2023
This appeal having been heard and reserved for judgment, coming on for
pronouncement this day, the Court pronounced the following:
JUDGMENT
This first appeal has been preferred by the appellants/defendants challenging the judgment and decree dated 25.07.1990 passed by District Judge, Narsinghpur in civil suit no.14-A/74 whereby plaintiffs/respondents' suit for declaration, restoration of possession of suit property and mesne profits has been decreed.
2. The facts in short are that plaintiffs instituted a suit on 04.10.1971 for declaring the order of Registrar/Collector, Narsinghpur (holding the property in question to be private trust) and consequent order dated 19.12.1975 (passed under the provisions of Ceiling on Agriculture Holdings Act) to be null and void, for restoration of possession of the suit property as well as for mesne 5 profits with the allegations that suit property and temple originally belonged to Bihari Patel who had two wives namely Jashoda and Parmo, who had given their entire property to plaintiff-temple and the plaintiffs are claiming that the temple and its property is public property and it is a public trust. It is further alleged that Bihari Patel appointed one Garibe and his son Kamod as Pujari. Garibe died in the year 1895 and at that time Kamod was minor, therefore, his brother Jagannath was appointed as Sarvarahkar being guardian of Kamod, who died in the year 1906. After death of Jagannath on 16.10.1947, his brother Mihilal (defendant 1) got his name mutated as Sarvarahkar. The defendants 2-4 being sons of Mihilal and defendant 5 being son of defendant 2-Ramsewak started transferring the land without having any right and stopped managing the temple and its worship, which is a public temple and has always been open for the general public. On inter alia allegations, the suit was filed.
3. The defendants 1-5 appeared and filed joint written statement claiming rights in the suit property through Jagannath who was appointed as Sarvarahkar /Pujari of plaintiff-temple. It is also contended that after death of Jagannath, defendant 1-Mihilal became Sarvarahkar but he was not well, therefore, he appointed defendants 2-5 as Sarvarahkar and their name was also mutated accordingly. During pendency of suit, defendant 1-Mihilal had died. The defendants 2-4 are sons of defendant 1-Mihilal and defendant 5 is son of defendant 2-Ramsevak. However, without claiming any right in succession through Bihari or his wives namely Jashoda and Parmo, they prayed for dismissal of suit.
4. Defendants 6-7 (Chandrabhan and Shyamsunder) filed their joint written statement and contended that they have purchased part of the suit property from defendant 2 and the defendants 1,3,4 and 5 being co-owners, consented to the sale deed dtd. 14.04.1969 by signing it, as such the defendants 6-7 are bonafide purchasers.
65. Defendant 9-Kasturi Bai also filed her written statement and contended that the defendants 1-5 were owner of the property and she has purchased part of the suit property from defendant 3 vide regd. sale deed dtd. 26.06.1970 and she is bonafide purchaser.
6. Defendant 10-Ramdayal also filed his written statement and contended that the defendants 1-5 were owner of the property and he has purchased part of the suit property from defendant 3 vide regd. sale deed dtd. 07.07.1970 and he is bonafide purchaser.
7. Defendants 11-13 (Shankarlal, Kadhori and Ginda) also filed their written statement and contended that the defendants 1-5 were owner of the property and they have purchased part of the suit property from defendant 1-Mihilal vide regd. sale deed dtd. 06.12.1969 and they are bonafide purchasers.
8. Defendant 15-Harparasad filed his written statement and claimed rights in the property on basis of his possession on part of the suit land since the year 1926 and claimed to have acquired title by adverse possession.
9. Defendant 19-State of Madhya Pradesh also filed its written statement and denying rights of the plaintiffs 2-12 in the suit properties, supported the orders of the State authorities passed with regard to the trust as well as with regard to the ceiling proceedings and prayed for dismissal of the suit.
10. On the basis of pleadings of the parties trial Court framed as many as 23 issues.
11. At this stage an application under order 7 rule 11 CPC was filed by the defendants, which vide order dtd. 18.12.1978 was allowed and suit was dismissed. Upon filing F.A. 44/1980, this Court vide judgment dtd. 21.02.1983 allowed first appeal and remanded the matter to trial Court for decision of civil suit on merits by passing the following order :
Judgment dtd. 21.02.1983 passed in FA 44/1980 7 "The present appeal of the plaintiffs,-the heirs of the author of the Trust, is directed against the trial Court's order dated 18.12.1978, rejecting their plaint under Order VII Rule 11(d) CPC, as being barred by time.
2. Plaintiffs' suit, apart from other reliefs, was principally for the relief of declaration that the finding dated 29.12.1959 of the Registrar of Public Trusts in case no.1/59-60, holding the trust as private trust and not a public trust, was illegal and void. Such relief principally was claimed presumably in accordance with Section 8 of the M.P. Public Trust Act, 1951. It was alleged in the plaint that despite the recording of the particular finding by the Registrar, in accordance with Section 6 ibid, he had not caused the entries made in the register of trusts in accordance with the finding recorded by him under section 6 ibid, as was enjoined by section 7 ibid. Defendants, who were in possession of the trust properties, had filed the written statement,- challenging, amongst other things, the tenability of the suit on the ground of limitation. The trial Court, after elaborate discussion of the Supreme Court decision reported in A.I.R.1967 S.C.1742 Hassan Nurani vs. Asst. Charity Commr., Nagpur, which was relied on, by both sides, came to hold the view that the suit of the present nature where entries were not made in the register of trusts by the Registrar of Public Trusts, in accordance with Section 7 of the M.P. Public Trust Act, could not attract Section 8 ibid for purposes of limitation and was governed by the general limitation i.e. Indian Limitation Act; and as such, the suit, being thus barred by time, the plaint was rejected in accordance with Order VII Rule 11 C.P.C.
3. Now, in the present appeal, the learned counsel for the appellants- plaintiffs has vehemently urged that the question of limitation for purposes of Order VII Rule 11 CPC being restricted to the facts as stated in the plaint, the trial Court was not competent to reject the plaint on the ground of limitation which the plaintiffs had prima facie rested their claim within the ambit of the provisions of the M.P. Public Trust Act. The learned counsel for the respondents, refuting this argument, has urged that no entries having been made by the Registrar in accordance with section 7 of the M.P. Public Trust Act, the trial Court was right in rejecting the plaint since the suit appeared to be barred by time according to the provisions of the Indian Limitation Act.
4. Having heard the learned counsel for both sides, we have reached the conclusion that this appeal must be allowed. Despite several reliefs claimed by the plaintiff; their principal relief, in effect, is for setting aside of the finding given by the Registrar that the 'temple Deo Laxminaraynaji' is not a public-trust. Such a suit, in our opinion, clearly falls under section 8 of the M.P. Public Trust Act. The reasoning given by the trial Court that no suit could be filed under section 8, in the absence of any entry in the register of Trusts in accordance with section 7 of the Act when the Registrar's finding was that the trust in question was not a public trust, is clearly opposed to the view, taken by the Supreme Court in H.N. Malik vs. S.M. Ismail, A.C. Commissioner (1967 M.P.L.J 118 - A.I.R.1977 S.C.1742). The circumstances of the present case, so far as it relates to the institution of the suit and limitation, are found to be squarely covered by the decision of this Court in Second Appeal No.596 of 1966 Anoop Singh and another vs. Thakur Nathu Singh decided on 14.7.72 (1972 M.P.L.J. Short-Note No.106) and we find ourselves in full agreement with the said decision. It therefore, clearly follows that the cause of action for the instant suit is the finding of the Registrar, and not the making of an entry in the register of Trusts on the basis of the findings; and, therefore, it is not correct to say that the suit of the present nature could not be filed unless the Registrar had completed the formality of getting the corresponding entry made in the register of Trusts.
5. In the result, this appeal is allowed. The impugned order of the trial Court rejecting the plaint in accordance with Order VII Rule 11(d) C.P.C. is set aside. The trial Court shall, now, proceed to decide the suit in accordance with the law. The costs incurred in the present appeal shall abide the result of the suit."
12. Trial court's order sheet dtd. 02.12.1985 shows that despite service of summons, the defendants 1-18 did not appear and were proceeded ex parte time to time. Vide order dtd. 03.09.1986 an application under order 1 rule 10 CPC was allowed and State of Madhya Pradesh through Registrar Public Trust and Collector, Narsinghpur was made party as defendant 19, on whose behalf counsel appeared on 10.12.1986 and filed written statement on 15.01.1987. On 8 08.05.1987 additional issue no.4 was framed and first time case was fixed for evidence on 16.06.1987.
13. On 03.12.1988, 05.12.1988 and 06.12.1988 the plaintiffs examined Moolchand (PW-1), Dalchand (PW2), Ayodhya Prasad Jhariya (PW3), Dharamdas (PW4), Raja Bhaiya (PW5) and R.S. Patel (PW6) who were not cross examined by the defendants. In rebuttal, no evidence was adduced on behalf of the defendants 1-18. However, witnesses Trilok (DW1) and Hanumant Singh (DW2) were examined on behalf of the defendant 19-State of Madhya Pradesh.
14. Thereafter, trial Court heard arguments and taking into consideration the aforesaid unrebutted evidence of the plaintiffs, decreed the suit vide judgment and decree dtd. 25.07.1990.
15. Against the judgment and decree dtd. 25.07.1990 passed by trial Court, the appellants/defendants preferred instant first appeal before this Court. During pendency of appeal, several respondents and appellants died and in that regard as many as 28 applications were filed by the appellants to bring legal representatives on record, to set aside the abatement and to condone the delay in filing the applications for setting aside abatement, which came for consideration before this Court and were decided vide order dated 21.01.2013 and ultimately the instant first appeal was dismissed as abated by passing following order:-
Order dtd. 21.01.2013 passed in FA 252/1990 "1. Near about 42 years ago, on 4.10.1971, a civil suit for declaration that the order of the Registrar/Collector, Narsinghpur holding that the property in question is a private trust is null and void and in consequence thereof, the order dated 19.12.1971 of the competent authority, under the Ceiling on Agricultural Holdings Act, Narsinghpur declaring the land to be surplus under the said Act be declared null and void, the possession of the suit property be delivered to first plaintiff Shri Deo Laxmi Narayan Ji and a sum of Rs.3,000/- for movable property show in schedule (e) of the plaint be also directed to be paid to the first plaintiff and further that the defendants be directed to submit the accounts and mense profit at the rate of Rs.12,000/- per annum be decreed to be paid in favour of the plaintiffs.
2. The written statement was filed on behalf of defendants No. 1 to 5 and a separate written statement was filed by defendant No.9. Defendants Shankarlal, Ginda and Kadhori (defendants No.11, 12 and 13 respectively) have filed their separate written statements, while defendant No.15 has filed his separate written statement.
3. The learned trial Court examined the witnesses of the plaintiffs and on behalf of defendants, two witnesses Trilok and Hamumant Singh were examined. The Trial court after recording the evidence, decreed the suit holding that the order of the 9 Registrar/Collector, Narsinghpur under case No. 1/Mad B/113(1) year 1959-60 holding that Shri Deo Laxmi Narayan Mandir is a public trust is null and void; it was further decreed that the property mentioned in Schedule-E, which has been sold out by defendants No.1 to 5, that transfer is null and void; the suit was also decreed by holding that the order passed in ceiling case No.122 Mad A/90(B)(3)/year 1974-75, passed by the competent authority Narsinghpur dated 19.12.1975 declaring 12.25 acres of the land of survey No.42 to be surplus land is null and void and the said order is set aside; the defendants were directed to give possession of the suit property to plaintiff No.1, which is mentioned in schedule-E upto 31.08.1990, failing which the plaintiffs shall be free to get the decree executed from all the defendants; defendants No.1 to 5 are directed to submit the accounts of suit property upto 31.08.1990, when it came in the control of Mishrilal, after the death of Jagannath and for the purpose of rendition of accounts, this decree shall be deemed to be a preliminary decree. In case, in the stipulated period, the accounts are not submitted, the plaintiff No.1 shall be free to file an application for obtaining the final decree; the defendants (except defendant No.19) are directed to deposit the mesne profit at the rate of Rs.12,000/- per annum and the defendants are restrained from interfering in the possession of the suit property after the possession is delivered to the plaintiffs.
5. This appeal under Section 96 of the C.P.C. was filed before this Court more than 22 years ago on 23.10.1990. During the pendency of this appeal, several respondents and also appellants 7 and 12 namely Kasturibai and Siyaram have died. Eventually, as many as 28 applications have been filed by the appellants to bring the legal representatives on record, to set aside the abatement and to condone the delay in filing the legal representatives' application and to set aside the abatement within time.
6. Application I.A. No.11286/11 under Order 22 Rule 4 C.P.C. has been filed to bring the legal representatives of deceased respondent No. 17 Ram Ratan Yadav, on record on 15.09.2011, who has died on 11.07.2001 and the application has been filed after more than 10 years. I.A. No.11288/11 has been filed under Section 5 of the Limitation Act to condone the delay and I.A. No. 11290/11, has been filed under Order 22 Rule 9 of C.P.C. for setting aside the abatement.
7. Application I.A. No.11293/11 under Order 22 Rule 4 C.P.C. has been filed to bring the legal representatives of deceased respondent No.7 Mst. Kasturi Bai (who in fact is appellant No.7) on record. In the application it is stated that she has died on 02.09.2005 but the application has been moved after more than six years, on 15.09.2011. I.A. No.11924/11 has been filed under Section 5 of the Limitation Act to condone the delay and I.A. No. I.A. No.11925/11, has been filed under Order 22 Rule 9 of C.P.C. for setting aside the abatement on 15.09.2011.
8. Application I.A. No.11302/11 under Order 22 Rule 4 C.P.C. has been filed to bring the legal representatives of deceased respondent No.2 Beni Prasad on record. In the application it is stated that he has died on 14.10.2003 but the application has been moved after more than eight years, on 15.09.2011. I.A. No.11306/11 has been filed under Section 5 of the Limitation Act to condone the delay on 15.09.2011.
9. Application I.A. No.11303/11 under Order 22 Rule 4 C.P.C. has been filed to bring the legal representatives of deceased appellant No.12 Siyaram on record on 15.09.2011 stating therein that the said appellant has died on 12.09.1999. This application has been filed after 12 years. I.A. No.11305/11 has been filed under Section 5 of the Limitation Act to condone the delay and I.A. No.11309/11, has been filed under Order 22 Rule 9 of C.P.C. for setting aside the abatement and these applications have been filed on 15.09.2011.
10. Application I.A. No.11304/11 under Order 22 Rule 4 C.P.C. has been filed to bring the legal representatives of deceased respondent No.9 Halke Prasad on record was filed on 15.09.2011 stating therein that the said appellant has died on 16.07.2009.
This application has been filed after more than 2 years. I.A. No.11307/11 has been filed under Section 5 of the Limitation Act to condone the delay and I.A. No.11310/11, has been filed under Order 22 Rule 9 of C.P.C. for setting aside the abatement and these applications have been filed on 15.09.2011.
10. Application I.A. No.11312/11 under Order 22 Rule 4 C.P.C. has been filed to bring the legal representatives of deceased respondent No.5 Dharamdas on record on 15.09.2011. This application it has been stated that he has died on 04.12.2009, thus the application has been moved near about after one year and 9 months. I.A. No.11314/11 under Section 5 of the Limitation Act and I.A. No.11316/11 under Order 22 Rule 9 C.P.C. have been filed to condone the delay and to set aside the abatement.
11. Application I.A. No.11313/11 under Order 22 Rule 4 C.P.C. has been filed to bring the legal representatives of deceased respondent No.10 Moolchand on record on 15.09.2011 and it has been stated that said respondent died on 06.08.2010. This application has been filed after one year. I.A. No.11315/2011 has been filed under Section 5 of the Limitation Act to condone the delay and I.A. No.11317/11 has been filed under Order 22 Rule 9 of C.P.C. for setting aside the abatement and these applications have been filed on 15.09.2011.
1012. Application I.A. No.11318/2011 has been filed under Order 22 Rule 4 C.P.C. for bringing the legal representatives of deceased respondent No.18 Tarachand Kaurav on record, who has died on 24.07.1996 and thus this application has been filed after 15 years. I.A. No.11320/2011 has been filed under Section 5 of the Limitation Act to condone the delay and I.A. No.11322/11 has been filed under Order 22 Rule 9 of C.P.C. for setting aside the abatement and these applications have been filed on 15.09.2011.
13. Application I.A. No.11319/2011 has been filed under Order 22 Rule 4 C.P.C. for bringing the legal representatives of deceased respondent No.13 Ramsewak on record has been moved on 15.09.2011 and it has been stated in the application that said respondent died on 12.12.2001. Thus the application has been filed after more than 10 years. I.A. No.11321/2011 has been filed under Section 5 of the Limitation Act to condone the delay and I.A. No.11323/11 has been filed under Order 22 Rule 9 of C.P.C. for setting aside the abatement and these applications have been filed on 15.09.2011.
14. Since these applications were not moved well in time and no sufficient cause has been shown to condone the exorbitant delay, the applications cannot be allowed. It would be pertinent to mention here that the appellants are quite aware that if a party dies, an application for substitution is to be filed, because in the trial Court, some of the plaintiffs were died and their legal representatives were brought on record and similarly some of the defendants were also died and their legal representatives were also brought on record in the Trial Court.
15. In this appeal also, on account of death of appellant No.3, his name was deleted and on account of death of appellant No.8 Ram Dayal, his legal representatives were brought on record. Similarly on account of death of respondent No.15, Chhotelal, his name was deleted. Thus it cannot be said that appellants were not aware of the procedure that if a party dies, an application to bring the legal representatives has to be moved well in time, because in the Trial Court as well as before this court also, during the pendency of the appeal, they have filed necessary application to bring the legal representatives of the deceased party and to delete some of the names of the parties, who were died from time to time, those applications were allowed by the learned Trial Court and by this court during the pendency of this appeal. Hence, I am of the view that no satisfactory explanation has been assigned in the application to file applications to bring the legal representatives of the aforesaid parties well in time. Indeed some of the applications have even been filed after 10 years and 15 years from the date of the death. Therefore, I am of the view that because no satisfactory explanation has been given in the applications, all these applications deserve to be dismissed and they are hereby dismissed. This appeal is also hereby dismissed as abated.
16. Shri Kapil Jain, learned counsel for the appellants submits that in terms of schedule-E, the possession of the property in question may be obtained by the appellants, however, it is hereby direct that if the decree has not been executed, it may be executed strictly in terms of decree, which has been passed by learned Trial Court."
16. The final order/judgment dated 21.01.2013 passed by this Court, was challenged by the appellants/defendants before the Supreme Court by filing SLP (Civil) No.28461/13 which was converted into Civil Appeal no. 4548/19 and was decided on 25.04.2019 by passing the following order:-
Order dtd. 25.04.2019 passed in Civil Appeal no. 4548/2019 "Leave granted.
By an Order dated 29.12.1959, the Registrar/Collector, Narsinghpur held that Shri Deo Laxmi Narayan Mandir ('the temple') is a private trust. The civil suit filed for declaration by the respondents was decreed holding the temple to be a public trust. The appellants who are defendants in the suit filed an appeal before the High Court. During the pendency of the appeal some parties to the Appeal died and applications were filed for bringing the legal representatives on record. As there was inordinate delay in filing those applications, the High Court dismissed the applications and held that the appeal has abated.
Mr. Sushil Kumar Jain, learned senior counsel for the appellants submits that there are other appellants/defendants in the suit who are still surviving and it cannot be said that the appeal has abated. The learned counsel appearing on behalf of the respondents plaintiffs submitted that the decree cannot be severed and once the Appeal has abated against the defendants who have passed away, the Appeal does not survive for consideration.11
Without expressing any opinion on the submissions made by the learned counsel for both the parties, we remit the matter to the High Court to adjudicate on the issue as to whether the entire Appeal would abate as a consequence of abatement in respect of those defendants who died. As the suit was filed about 47 years back, we request the High Court to decide the appeal expeditiously not later than six months from today.
In the meanwhile, the appellants would not indulge in any alienation of the property. It is needless to mention that the orders passed by the High Court dismissing the applications filed for bringing the legal representatives on record, shall not be revisited by the High Court.
The appeal is disposed of."
17. Criticizing the previous order dtd. 21.01.2013 passed in instant appeal, learned counsel for the appellants submits that looking to the nature of suit and relief granted by trial Court, due to death of defendants/appellants 7 and 12 namely Kasturibai and Siyaram; defendants/respondents17-18 namely Ramratan Yadav and Tarachand Kaurav and plaintiffs/respondents 2-Beni Prasad, 5- Dharamdas, 9-Halke Prasad, 10-Moolchand and 13-Ramsewak, first appeal does not abate in its entirety and there are other appellants/defendants and respondents/plaintiffs in the suit, to whom right to sue still survives and it cannot be said that the first appeal has abated as a whole.
- So far as merits of case are concerned, learned Counsel for the appellants submits that property in question is a private property belonging to the plaintiff- temple and the Registrar/Collector had rightly held so. He further submits that there is no material on record to show that plaintiff-temple is a public trust and its property belongs to public trust and in any case in the light of provisions contained in Section 32 of the M.P. Public Trusts Act, 1951 (in short 'the Act') the suit is not maintainable. In support of his submissions, he placed reliance on decision of this Court in the case of Pooranchand vs. The Idol Shri Radhakrishnaji and another AIR 1979 MP 10; Idol Shri Shriji & Others vs. Chaturbhai Mangalbhai Patel AIR 1965 MP 5; and Deo Hanumanji Swami vs. Ram Gulam ILR 1963 MP 755. With these submissions he prayed for allowing the appeal, however no other point has been pressed or argued.
18. Learned counsel appearing for the respondents/plaintiffs submits that decree passed by trial Court is indivisible and cannot be severed and once the 12 appeal has abated against the defendants and plaintiffs who have passed away, the appeal does not survive for consideration. He further submits that appellants/defendants have no right over the suit property because the property and temple belonged to Biharilal, who was survived by two wives namely Jashoda and Parmo and undisputedly defendants have no relation with said three persons (owner of the property). He further submits that one Jagannath was appointed as Pujari of temple, who was son of Garibe and elder brother of Kamod. He also submits that temple in question is open for worship to all and is being worshiped by general public at large without any interruption and trial Court taking into consideration the aforesaid aspect, has rightly held the temple to be a public trust and in support of his submissions, he placed reliance on a decision of Supreme Court in the case of Deoki Nandan Vs. Murlidhar and others AIR 1957 SC 133.
- By pressing I.A. no. 15856/2023 which is an application under order 41 rule 27 CPC, learned counsel for the respondents/plaintiffs submits that during pendency of instant appeal, plaintiff-trust has been registered as public trust vide order dtd 20.05.2013, a copy of which has been placed on record in the instant appeal. Learned Counsel has also pointed out that despite granting opportunity by this Court, no reply has been filed to the application, which shows that appellants do not dispute about subsequent registration of plaintiff- trust as public trust.
19. Heard learned counsel for the parties and perused the record.
20. This appeal involves following points for determination:-
"1. Whether on account of death of defendants/appellants 7 and 12 i.e. Kasturibai and Siyaram; defendants/respondents 17-18 i.e. Ramratan Yadav and Tarachand Kaurav and plaintiffs/respondents 2- Beni Prasad, 5-Dharamdas, 9-Halke Prasad, 10-Moolchand and 13- Ramsewak, the appeal has abated in its entirety ?13
2. Whether the temple in question is a public trust ?.
3. Whether without registration of a public trust, the suit is maintainable ?".
21. In the present case, defendants 1-5 filed written statement jointly and claimed rights in the suit property through Jagannath, who was appointed as Sarvarahkar/Pujari of plaintiff-temple. It is also contended that after death of Jagannath, defendant 1-Mihilal became Sarvarahkar but he was not well, therefore, he appointed defendants 2-5 as Sarvarahkar and their name was also mutated accordingly. During pendency of suit, defendant 1-Mihilal had died. The defendants 2-4 are sons of defendant 1-Mihilal and defendant 5 is son of defendant 2-Ramsewak.
22. Defendants 6-7, 9 to 13 filed their written statement(s) and contended that they have purchased part of the suit property from defendants 1-3 by separate regd. sale deeds. The defendant 15 also filed written statement and claimed rights in the property on the basis of long possession. As such deceased person namely Kasturibai-defendant 9 is claiming right through defendant 3 and Siyaram-defendant 18 did not file written statement. Similarly, defendants/ respondents 17-18 namely Ramratan Yadav and Tarachand Kaurav also did not file written statement. As such it can very well be said that appeal does not abate as a whole but in view of provisions of order XXII rule 4(4) CPC, it has abated only against defendant 9, because the decree is divisible.
23. It is apparent from record that suit property and temple originally belonged to Bihari Patel who had two wives namely Jashoda and Parmo, who had given the entire property to plaintiff-temple and plaintiffs are alleging the temple and its property to be a public property and it is a public trust, which has been found proved by trial Court by impugned judgment, therefore, and since the plaintiffs/respondents 2-Beni Prasad, 5-Dharamdas, 9-Halke Prasad, 10- 14 Moolchand and 13-Ramsewak have not claimed any personal rights, therefore, even upon death of said plaintiffs also, instant appeal does not abate.
24. Now the question is as to whether the plaintiff-temple and its property is private or public. Undisputedly, suit property and temple originally belonged to Bihari Patel who had two wives namely Jashoda and Parmo, who had given the property to plaintiff-temple and the plaintiffs are alleging the temple and its property to be public property and it is a public trust, which on the basis of oral and documentary evidence, has also been found proved by trial Court by the impugned judgment.
25. In rebuttal to the evidence adduced by plaintiffs, no evidence has been adduced by defendants to prove that temple and its property is private property. It is an admitted fact that defendants 1-5 had no nexus with the family of Bihari Patel and even according to them, their capacity is that of Pujari and in such capacity they have alienated/transferred the suit property to many persons including the defendants 6-18. It is well settled principle of law that Pujari of a temple just manages the property and he has no right to alienate/transfer the property of temple in any manner. As such alienations made by the Pujari or by the defendants 1-5 have rightly been held to be void.
26. Along with other evidence adduced by the plaintiffs, learned Court below has placed reliance on a registered document namely Tamliknama (Ex.P/18) as well as testimony of defendant 19-State's witnesses Trilok (DW1) and Hanumant Singh (DW2) and has come to conclusion that temple in question is public temple because general public at large is having free access for worship to the temple without any interruption. It is significant to mention here that successors of original owner of the Temple/property have not claimed any individual right but they have stated the temple and its property to be public property. In the case of Deoki Nandan Vs. Murlidhar and others AIR 1957 SC 133 the Supreme Court has held as under :
15"16. We may now refer to certain facts admitted or established in the evidence, which indicate that the endowment is to the public. Firstly, there is the fact that the idol was installed not within the precincts of residential quarters but in a separate building constructed for that very purpose on a vacant site. And as pointed out in Delroos Banoo Begum v. Nawab Syud Ashgur Ally Khan, 15 Beng L R 167 at p. 186(J) it is a factor to be taken into account in deciding whether an endowment is private or public, whether the place of worship is located inside a private house or a public building. Secondly, it is admitted that some of the idols are perman- ently installed on a pedestal within the temple precincts. That is more consistent with the en- dowment being public rather than private. Thirdly, the puja in the temple is performed by an archaka appointed from time to time. And lastly, there is the fact that there was no temple in the village, and there is evidence on the side of the plaintiff that the, Thakurdwara was built at the instance of the villagers for providing a place of worship for them. This evidence has not been considered by the courts below, and if it is true, that will be decisive to prove that the en- dowment is public.
17. It should be observed in this connection that though the plaintiff expressly pleaded that the temple was dedicated 'for the worship of the general public", the first defendant in his written statement merely pleaded that the Thakurdwara and the idols were private. He did not aver that the temple was founded for the benefit of the members of the family. At the trial, while the witnesses for the plaintiff deposed that the temple was built with the object of providing a place of worship for all the Hindus, the witnesses examined by the defendants merely deposed that Sheo Ghulam built the Thakurdwara for his own use and "for his puja only". The view of the lower Court that the temple must be taken to have been dedicated to the members of the family goes beyond the pleading, and is not supported by the evidence in the case. Having considered all the aspects, we are of opinion that the Thakurdwara of Sri Radhakrishnaj in Bhadesia is a public temple."
27. Further, in the case of State of Madhya Pradesh and others vs. Pujari Utthan Avam Kalyan Samiti and another (2021) 10 SCC 222, the Supreme Court has held as under :
"17. On the other hand, there are some judgments taking different view within the High Court including the one reported as Sadashiv Giri & Ors. v. Commissioner, Ujjain & Ors., 1985 RN 317 wherein an argument was raised that the temple is in possession of land. However, the Court held that how could the temple have such possession, therefore, it was the Pujari who had been conferred the right to upkeep and perform puja by the then Jagirdars. The Pujaris were the Inamdars of the land in question and thus became Bhumiswami when the Code came into force on 02.10.1959. The said judgment is clearly erroneous as the presiding deity of the temple is the owner of the land attached to the temple. The Pujari is only to perform puja and to maintain the properties of the deity. In fact, the Constitution Bench in a judgment reported as M. Siddiq (Dead) Through Legal Representatives v. Mahant Suresh Das and Others, (2020) 1 SCC 1 held as under:
"511.........A pujari is merely a servant or appointee of a she bait and gains no inde- pendent right as a shebait despite having conducted ceremonies over a period of time. All the evidence relied upon to support the claim of late Baba Abhiram Das is restric - ted to his having performed puja at the disputed premises and does not confer any shebaiti rights."
18 to 21. ******** 16
22. The contrary view expressed by the High Court in Ghanshyamdas I, Sadashiv Giri and Shri Krishna does not lay down good law in view of binding precedent of the Division Bench of the High Court in Pancham Singh as also of this Court in Kanchaniya. All these judgments presenting a contrasting view had not noticed the said binding precedents dealing with the rights of priest under the Gwalior Act."
28. By placing reliance on the decision in the case of Pooranchand vs. The Idol Shri Radhakrishnaji and another AIR 1979 MP 10; Idol Slid Shriji & Others vs. Chaturbhai Mangalbhai Patel AIR 1965 MP 4; and Deo Hanumanji Swami vs. Ram Gulam ILR 1963 MP 755 learned Counsel for the appellants submits that in view of the provisions contained in Section 32 of the M.P. Public Trusts Act, 1951 the suit is not maintainable. For convenience and ready reference, Section 32 of the Act reads as under :
"32. Bar to hear or decide suits. - (1) No suit to enforce a right on behalf of a public trust which has not been registered under this Act shall be heard or decided in any Court. (2) The provisions of sub-section (1) shall apply to claim or set off or other proceeding to enforce a right on behalf of such public trust."
29. Perusal of section 32 of the Act makes it clear that bar contained therein, is in respect of the suit to enforce a right on behalf of a public trust and not in respect of the suit in which title of the public trust is in question that too where the Registrar, Public Trusts has already declared it to be a private trust/property. Taking into consideration this aspect of the matter, this Court in previous round in F.A. 44/1980, has held that in fact the suit is under section 8 of the Act, therefore, the said bar is not applicable to this case.
30. In view of above, unless the order passed by Registrar (declaring the temple to be a private trust) is set aside, section 32 of the Act cannot be pressed into service. As such the decisions in the case of Pooranchand (supra); Idol Slid Shriji & Others (supra); and Deo Hanumanji Swami (supra) are not applicable to the case in hand. However, after setting aside order of Registrar, Public Trusts by the impugned judgment and decree, plaintiff-trust has been registered on 20.05.2013, under the M.P. Public Trusts Act, 1951 regarding which a document 17 has been placed on record of this Court by filing application under order 41 rule 27 CPC (IA 15856/23) and factum of registration of plaintiff-trust as a Public Trust under provisions of the M.P. Public Trusts Act, 1951 has not been denied by the defendants even after giving due opportunity of filing reply.
31. It is pertinent to mention here that despite availability of opportunity, the defendants neither cross examined the plaintiffs' witnesses nor came in the witness box to prove their case and did not offer themselves to be cross examined by the plaintiffs, therefore, there is no option available with the Court but to presume that case set up by the defendants is not correct as well as to presume that case set up by plaintiffs is true. The Supreme Court in the case of Vidhyadhar vs. Manikrao and another (1999) 3 SCC 573 has held as under :
"16. Where a party to the suit does not appear into the witness box and states his own case on oath and does not offer himself to be cross examined by the other side, a presumption would arise that the case set up by him is not correct as has been held in a series of decisions passed by various High Courts and the Privy Council beginning from the decision in Sardar Gurbak- sha Singh v. Gurdial Singh, AIR 1927 PC 230. This was followed by the Lahore High Court in Kirpa Singh v. Ajaipal Singh, AIR 1930 Lahore 1 and the Bombay High Court in Martand Pandharinath Chaudhari v. Radhabai Krishnarao Deshmukh, AIR 1931 Bombay 97. The Mad- hya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh Nandkishore Rawat, AIR 1970 Madh Pra 225, also followed the Privy Council decision in Sardar Gurbakhsh Singh's case (AIR 1927 PC 230) (supra). The Allahabad High Court in Arjun Singh v. Virender Nath, AIR 1971 Allahabad 29 held that if a party abstains from entering the witness box, it would give rise to an inference adverse against him. Similarly, a Division Bench of the Punjab and Haryana High Court in Bhagwan Dass v. Bhishan Chand, AIR 1974 Punj and Har 7, drew a presumption under Section 114 of the Evidence Act against a party who did not enter into the witness box."
32. Aforesaid decision has further been followed by the Supreme Court in the case of Iqbal Basith and others vs. N. Subbalakshmi and others (2021) 2 SCC 718 and held as under :
"9. The present suit was instituted by the appellants in 1974 seeking permanent injunction as the respondents attempted to encroach on their property. The suit schedule property was de - scribed as no. 44/6. The respondents in their written statement claimed ownership and posses- sion of property no. 42, acknowledging that other properties lay in between. A feeble vague objection was raised, but not pursued, questioning the title of the appellants. The respondents raised no genuine objection to the validity or genuineness of the government documents and the registered sale deeds produced by the appellants in support of their lawful possession of the suit property. The original defendant no. 1 did not appear in person to depose, and be cross-examined in the suit. His younger brother deposed on the basis of a power of attorney, acknowledging that the latter had separated from his elder brother. No explanation was fur-18
nished why the original defendant did not appear in person to depose. We find no reason not to draw an adverse inference against defendant no. 1 in the circumstances.
10. In Iswar Bhai C. Patel vs. Harihar Behera, (1999) 3 SCC 457 this Court observed as fol- lows:-
"17.....Having not entered into the witness-box and having not presented himself for cross-examination, an adverse presumption has to be drawn against him on the basis of the principles contained in Illustration (g) of Section 114 of the Evidence Act, 1872."
33. In view of aforesaid discussion and settled legal position, impugned judgment and decree passed by trial Court on 25.07.1990 are not liable to be interfered with and are hereby affirmed.
34. Resultantly, first appeal fails and is hereby dismissed. No orders as to costs.
35. Pending application(s), if any, shall stand dismissed.
(DWARKA DHISH BANSAL) JUDGE pb Digitally signed by PRASHANT BAGJILEWALE Date: 2023.12.19 16:11:07 +05'30'