Delhi High Court
Shri Amar Nath Shamra vs Bankey Behari Ji Maharaj(Thakur Ji) & ... on 28 January, 2011
Author: Indermeet Kaur
Bench: Indermeet Kaur
R-20A
* IN THE HIGH COURT OF DELHI AT NEW DELHI
% Judgment Reserved on: 25.01.2011
Judgment Delivered on: 28.01.2011
+ RSA No.101/1986
SHRI AMAR NATH SHAMRA ...........Appellant
Through: Mr.A.K.Jain, Advocate.
Versus
BANKEY BEHARI JI MAHARAJ(THAKUR JI) & ORS.
..........Respondents
Through: Mr.Jose Chiramel & Mr.Ramesh
Kumar, Mr. Nikhil Aggrahani and
Mr.Calvin Chiramel, Advocates.
CORAM:
HON'BLE MS. JUSTICE INDERMEET KAUR
1. Whether the Reporters of local papers may be allowed to
see the judgment?
2. To be referred to the Reporter or not? Yes
3. Whether the judgment should be reported in the Digest?
Yes
INDERMEET KAUR, J.
1. Plaintiffs no.1 to 6 had filed the present suit for possession, damages and mesne profits. Plaintiff no.1 has been described as a deity installed in temple No.3209, Mohalla Dassan, Charkheywala, Delhi. Plaintiffs no.2 to 6 were the successors-in-interest of Pt.Gopal Saran Dass the original owner of the suit property. Defendant no.2 was a proforma party and RSA No.101/1986 Page 1 of 11 also a successor-in-interest of Pt.Gopal Saran Dass along with plaintiffs no.2 to.6
2. The case of the plaintiff was that Pt.Gopal Saran Dass had dedicated this property for a religious purpose. He had built a Shivalya and a Chhatari on the ground floor. Premises bearing No.3207, 3208, 3210, 3211 were the shops attached to this temple. Pt.Gopal Saran Dass died in 1878. His legal heir was Ganga Saran Dass the father-in-law of plaintiff no.2 and the grandfather of plaintiffs no.3 to 6 as also of defendant no.2. The temple was repaired and a new temple dedicated to Bankey Behari Ji Maharaj was constructed. Ganga Saran Dass appointed Pt.Makhan Lal as a pujari for conducting Sewa Puja. He was paid a sum of `30/- per month. He was performing the duties of the pujari; in this capacity he was allowed to use the first floor of the suit premises comprising three rooms and a bath rooms. On the ground floor the idols of the mandir were installed and the other movables were kept for storage. On the death of Pt.Makhan Lal defendant no.1 i.e. the Amar Nath Sharma was appointed as a pujari in place of Pt.Makhan Lal to perform sewa puja; he was also permitted to occupy the premises which were earlier in the occupation of Pt. Makhan Lal. Pt.Niranjan Lal Bhargava (who was the husband of plaintiff no.2 and father of plaintiffs no.3 to 6 as also defendant no.2 )died in February 1957 RSA No.101/1986 Page 2 of 11 leaving behind the aforenoted legal representatives. Plaintiffs no.2 to 6 are looking after the affairs of the temple as trustees and managers. They have no personal interest in the mandir. The defendant no.1 was performing his duties in a careless manner; he was negligent; he has recently brought construction material on the premises without permission with a view to illegally convert the temple on the ground floor for his residential use. Vide notice dated 19.7.1972 the service of the defendant was terminated. He was asked to vacate the premises; he had not adhered to this request. Suit for possession and recovery of the articles of the mandir (as detailed in schedule A attached with the plaint) as also for damages and mesne profits had been filed.
3. Defence of the defendant no.1 was that he is the owner of the suit property. His contention was that Ganga Saran Dass had gifted this property to Makhan Lal in 1901 and thereafter he gifted it to him. His further contention was that Pt. Makhan Lal had occupied ground floor and first floor of the premises. He had made a will dated 121.8.1954 by virtue of which defendants no.1 is owner of the suit property.
4. Trial judge had framed the following seven issues:
"1.Whether the plaintiff have locus-standi to file the present suit? OPP RSA No.101/1986 Page 3 of 11
2.Whether the suit is property valued for the purposes of court- fees and jurisdiction ?OPP
3.Whether the defendant No.1 was in service of the plaintiff as a Sewa Pujari and his service have been validly terminated on the grounds as alleged in paragraph 10 to 15 of the plaint? OPP
4.Whether the defendant No.1 is a trespasser and is liable to restore the possession of the suit premises to the plaintiff?OPP
5.Whether the occupation of defendant No.1 in the suit premises is that of an owner as alleged in paragraph No.3 of the additional pleas of the W.S.? OPD
6.Whether the defendant No.1 is in possession of the articles mentioned in schedule A attached with the plaint and is liable to hand over the same to the plaintiff? OPP
7.Relief."
5. Oral and documentary evidence was led by the respective parties. Suit of the plaintiff was decreed. The impugned judgment had upheld this finding of the trial judge. It was reaffirmed that the plaintiff is entitled to possession of the suit property; the defendant being only a pujari and his services having been terminated, he had no right to remain in the temple thereafter. Para 15 of the impugned judgment had noted that the temple is not a public temple; it is a sort of family temple by family settlement; for this reason no accounts has been get kept for the expenses incurred in the temple.
6. This is a second appeal. After its admission, on 30.9.1986 the following substantial questions of law were formulated; they inter alia read as follows:
RSA No.101/1986 Page 4 of 11
"1. Whether the property in dispute it merely a family temple of the respondent when it is alleged in the plaint that the property was dedicated for religious purposes and when public were entering temple and making offerings?
2. Whether on the evidence on record the appellant was Shebait of the temple?
3. Whether respondent No.2 to 5 had locus standi to file a suit?"
7. On behalf of the appellant, it has been urged that there was no evidence before the Court below to hold that the plaintiffs had any locus standi to file the present suit. The contention is that the lineage of succession has not been established by plaintiffs no.2 to5. Attention has been drawn to testimony of PW-1 wherein he has admitted that Niranjan Lal was the adopted son of Gaga Saran Dass. It is pointed out that this adoption deed has not been proved. There is no evidence to substantiate this submission. Plaintiff no.1 was a deity; a deity is always considered as a minor and can be sued through his next friend; no such permission had been obtained from the Court. For this proposition reliance has been placed upon a judgment reported in AIR 1981 Cal. 259 Jogesh Chandra Bera Vs. Sri Iswar Braja Raj Jew Thakur . Plaintiff no.2 to 6 have also failed to show that they were the trustees or the manager of the plaintiff no.1. Reliance has been placed upon a judgment reported in AIR 1955 SC 493 Mst. Raj Kali Kuer Vs. Ram Rattan Pandey to support a submission that a religious office can be RSA No.101/1986 Page 5 of 11 inherited and shebaitship is one such inheritable right. It is submitted that the defendant no.1 was working as shebait and was performing all such duties; he was not a mere pujari. Attention has been drawn to testimony of PW-8 as also of DW-1 on this score. It is pointed out that Makhan Lal after whom defendant no.1 had been appointed had in fact performed all such duties of shebait. Shebaitship is inheritable; defendant no.1 cannot be evicted. It is pointed out that the finding in the impugned judgment in para 15 that it was a family temple is not evidenced in pleadings of the Courts below. Findings in the impugned judgment are perverse.
8. Arguments have been countered. It is submitted that there are two concurrent finding of the two Courts below. Unless the findings are perverse no interference is called for. Reliance has been placed upon a judgment reported in (2001) 3SCCC 179 Santosh Hazari Vs. Purshottam Tiwari as also another judgment of this Court reported in (1999) 3 SCC 722 Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar. It is submitted that the concurrent findings of fact cannot be disturbed. It is submitted that the defence of the defendant that he is a shebait is contrary and conflicting position to his earlier stand in written statement wherein he has claimed ownership of the suit property. For this proposition reliance has been placed RSA No.101/1986 Page 6 of 11 upon AIR 1954 SC 69 Sree Sree Ishwar Sridhar Jew Vs. Sushila Bala Dasi & Ors. It is pointed out that the plaintiffs no.2 to 6 were performing their duties as trustees and manager of the temple; they had inherited this right from their father Pt.Niranjan Lal Bhargava; this is an inheritable right. For this proposition reliance has been placed upon AIR 2007 SC 2134 S.Rathinam Vs. L.S.Mariappan & Ors.
9. Record has been perused. The third substantial question of law shall be addressed first.
10. Issue no.1 was framed by the trial Court in this record which reads as follows:
"Whether the plaintiffs have locus standi to file the present suit? OPP.
11. Averments made in the plaint and the lineage of succession depicted by them have been perused. Testimony of PW-1 to PW-5 as also PW-8 and PW-9 has also been scrutinized. It has come on record that Gopal Saran Dass was the owner of the disputed property. He had purchased it vide sale deed Ex.PW-8/5. After his death his son Ganga Saran Dass became the owner of the property. Thereafter Niranjan Lal Bhargava became his heir. Ganga Saran Dass had adopted Niranjan Lal Bhargava; this was sometime in the year 1901. Admittedly the Hindu Adoption and Maintenance Act was not in force at that RSA No.101/1986 Page 7 of 11 time. There was a categorical averment of the plaintiff in his plaint about this fact to which there was no denial. The other contention of the learned counsel for the respondent/plaintiff is that an adopted son has the same status as that of a son and although it was for the first time in the evidence of PW-1 that it has been elicited that Ganga Saran Dass had adopted Niranjan Lal but there was no cross-examination of PW-1 on this score at all. The lineage of the plaintiff as owner of the suit premises had been adequately proved. The will set up by the defendant purported to have been executed by Makhan Lal in his favour Ex.Dx had made a reference to moveable properties only. Present suit property was not a part of Ex.Dx. Even otherwise the claim of the defendant was that Makhan Lal had been gifted this property by Ganga Saran Dass; which gift deed was also not proved. The locus standi of the plaintiffs no.2 to 6 to file the present suit had been adequately proved and affirmed by both the two fact finding Courts below.
12. The judgment of Jogesh Chandra Bera (supra) is inapplicable. This was a case where along with the plaint an application for leave to sue as an indigent person had been filed. It was held that a suit in the name of deity unless brought by the shebait himself or a prospective shebait must be so instituted through a next friend and the suit instituted without obtaining RSA No.101/1986 Page 8 of 11 such a leave is incompetent. Consequently the question of granting leave to sue as an indigent person was not competent. Ratio of this authority is inapplicable. Substantial question no.3 is answered accordingly.
13. The second substantial question of law was framed on the additional plea set up by the defendant in his written statement that he was a shebait of the temple. His contention being that Makhan Lal was performing all the duties of a shebait and after him defendant no.1 had been appointed in the same capacity. These were fact finding issues and both the concurrent findings of fact are against this proposition. Issue no.3 had been framed in this context it reads as follows:
"Whether the defendant No.1 was in service of the plaintiff as a Sewa Pujari and his service have been validly terminated on the grounds of alleged in paragraph 10 to 15 of the plaint? OPP"
14. Issue no.5 is also relevant; it reads as follows:
"Whether the occupation of defendant No.1 in the suit premises is that of an owner as alleged in paragraph No.8 of the additional pleas of the W.S.?OPD"
15. Case of the plaintiff all along was that defendant no.1 was a pujari; Pt.Makhan Lal had been appointed earlier and after his death defendant no.1 was appointed as the pujari. This has been reiterated in the version of PW-1, PW-8 and PW-9. Defendant had set up a case of ownership in terms of a will of Pt.Makhan Lal. The will Ex.Dx had not mentioned the disputed RSA No.101/1986 Page 9 of 11 property. The contention of the defendant that Pt.Makhan Lal had received this property by way of gift from Ganga Saran Dass had also been disbelieved. No such document had been proved. Documentary evidence adduced by the defendant had been rejected. Clear and cogent reasons for the said rejection find mention in the judgment of both the two fact finding Court below. Both the Courts have concluded that there was no evidence to establish that Pt.Makhan Lal was a shebait; he was performing his duties as a pujari only. Defendant no.1 was also appointed in the same capacity i.e. in the capacity in which Pt.Makhan Lal was working; it was that of a pujari.
16. The additional plea set up by defendant claiming adverse possession in the suit property was a claim which is contrary to his plea of shebaitship. In this context in the judgment of Sree Sree Ishwar Sridhar Jew (supra) Supreme Court had returned a finding in the following words:
20.We are in perfect accord with the observations made by Rankin C.J. If a shebait by acting contrary to the terms of his appointment or in the breach of his duty as such shebait could claim adverse possession of the dedicated property against the idol it would be putting a premium on dishonesty and breach of duty on his part and no property which is dedicated to an idol would ever be safe.
The shebait for the time being is the only person competent to safeguard the interests of the idol, his possession of the dedicated property is the possession of the idol whose shebait he is and no dealing of his with the property dedicated to the idol could afford the basis of a claim by him for adverse possession of the property RSA No.101/1986 Page 10 of 11 against the idol. No shebait can, so long as he continues to be the shebait, ever claim adverse possession against the idol. Neither Nagendra nor the appellants who derive their title from the auction sale held on the 9th December, 1936, could therefore claim to have perfected their title to the premises No.41-A Grey Street by adverse possession.
17. Substantial question of law No.2 is also answered against the appellant.
18. Substantial question of law no.1 does not emanate from the pleadings of the parties; this has been conceded by both the respective counsels. It was for the first time that in the impugned judgment in Para 15 it had been noted that this temple was a kind of a family temple and not a public temple.
19. Be that at it may, this substantial question of law not emanating from the pleadings between the parties and no arguments having been addressed on this score as this observation makes no difference to the outcome of the case, this Court shall not delve any further into this question of law.
20. The substantial questions of law are answered accordingly. Appeal is without any merit. It is dismissed.
INDERMEET KAUR, J.
JANUARY 28, 2011 nandan RSA No.101/1986 Page 11 of 11