Delhi District Court
(Idol Sadashiv Bhola Nathji Maharaj vs Tej Singh Etc) (Page 1 Of 68) on 14 September, 2016
CS No.18/16
IN THE COURT OF MS DEEPALI SHARMA,
ADDL. DISTRICT JUDGE-14 (CENTRAL):
TIS HAZARI COURTS: DELHI
CS -18/16
CSDJ-9887/16
1. Idol Sadashiv Bhola Nathji Maharaj
Represented by Shri Mangal Singh Jaiswal,
Its Manager-cum-Trustee,
Shabait or Dharmkarta
4975-76-77, near Mata Mandir,
Gali Imli Wali, Roshanara Road,
Subzi Mandi, Delhi-110006.
2. Shri Brijesh Jaiswal,
S/o Mangal Singh Jaiswal,
R/o 66, Defence Enclave,
Vikas Marg, Delhi-110092.
3. Shri Anil Kumar Jaiswal,
S/o Mangal Singh Jaiswal,
R/o 352, Gagan Vihar,
Delhi-110051.
4. Shri Rajesh Kumar Jaiswal,
S/o Mangal Singh Jaiswal,
R/o 351, Gagan Vihar,
Delhi-110051.
......Plaintif
Versus
Tej Singh & Ors.
1. Tej Singh S/o Mangal Singh Saini
(since deceased now represented by)
(Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 1 of 68)
CS No.18/16
(a) Savitri Devi, widow,
R/o 4975-76-77, Chowk Mata Mandir,
Roshan Ara Road,
Subzi Mandi, Delhi-110006.
(b) Ashok alias Trilok (son)
R/o 4975-76-77, Chowk Mata Mandir,
Roshan Ara Road,
Subzi Mandi, Delhi-110006.
(c) Amit Singh (son)
R/o 4975-76-77, Chowk Mata Mandir,
Roshan Ara Road,
Subzi Mandi, Delhi-110006.
(d) Miss Sarika (daughter)
R/o 4975-76-77, Chowk Mata Mandir,
Roshan Ara Road,
Subzi Mandi, Delhi-110006.
(e) Smt. Meena
W/o Sri Kishore @ Guddu
of Mumbai (Maharashtra).
(f) Smt. Meenu @ Au w/o Montu,
R/o Gali No.3, Subhash Nagar,
Meerut, U.P.
(g) Smt. Ritu w/o late Shri Sanjay
R/o Lohia Nagar, Meerut (U.P.)
(h) Smt. Sheetal w/o Shri Neeraj,
R/o Pahari Deeraj,
Sadar Bazari, Delhi-110006.
2. Karan Singh S/o Mangal Singh
(since deceased), now represented by:
(a) Shakuntala (Widow)
(b) Uttam Singh (Son)
(c) Jaswant Singh (Son)
(Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 2 of 68)
CS No.18/16
(d) Kuldip Singh (son)
(e) Poonam (Daughter)
All R/o 4975-76-77, Chowk Mata Mandir,
Roshanara Road,
Subzi Mandi, Delhi-110006.
3. Charan Singh, S/o Mangal Singh
(since deceased), now represented by:
(a) Smt. Maya Devi (Widow)
W/o late Caran Singh,
R/o 4975-76-77, Roshan Ara Road,
Mata Mandir Wali Gali.
Delhi-110006.
(b) Shri Deepak Singh (Son)
S/o late Caran Singh, aged about 30 years,
R/o 4975-76-77, Roshan Ara Road,
Chowk Mata Mandir,
Delhi-110006.
(c) Smt. Sunita (Daughter)
W/o Amar Singh, aged about 32 years,
R/o 82/8, Sarai Rohila,
Railway Quarters, Delhi.
(d) Kamal Singh (Son)
S/o late Caran Singh, aged about 27 years,
R/o 4975-76-77, Roshanara Road,
Mata Mandir Wali Gali,
Delhi-110006.
4. Ram Singh S/o Mangal Singh
(since deceased), now represented by:
(a) Smt. Pushpa (widow)
(b) Shri Romender Singh (son)
(c) Shri Mohender Singh (son)
(d) Shri Amarende Singh (son)
(Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 3 of 68)
CS No.18/16
All R/o 4975, Chowk Mata Mandir,
Gali Imli Wali,, Roshanara Road,
Subzi Mandi, Delhi-110007.
5. Nanak Singh S/o Mangal Singh,
(since deceased), now represented by:
(a) Smt. Urmila Devi (widow)
(b) Shri Hemand (son)
(c) Hem Lata w/o Sonu (daughter)
(d) Chitralekha
(e) Madhuri (minor daughter)
through her mother & natural guardian
Smt. Urmila Devi,
All R/o 4975-76-77, Chowk Mata Mandir,
Roshanara Road,
Delhi-110006.
6. Ram Prakash (since deceased)
now represented by
(a) Haraushi Devi (widow)
(b) Ramesh (son)
(c) Asha (daughter)
All R/o 4975-76-77, Chowk Mata Mandir,
Roshanara Road,
Delhi-110006.
7. Raghubir Gubarawala (since deceased)
now represened by
a. Rakesh Kumar (son)
C/o Bal Krishan Painter,
House No.19/160, Pir Kalyani,
Paliwal Park, Agra University,
Agra (U.P.).
b. Rohit @ Raj Kumar (son)
r/o 4975-76-77, Chowk Mata Mandir,
Roshanara Road,
Delhi-110006.
(Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 4 of 68)
CS No.18/16
c. Manju (Daughter)
W/o Shri Ajay Kumar,
R/o House No. WZ-79.
Sant Nagar, Tilak Nagar, Delhi.
d. Geeta (Daughter)
R/o House No. 419A, Jogiwali Gali,
Azad pur, Delhi-110033.
e. Usha (Daughter)
r/o 4975-76-77, Chowk Mata Mandir,
Roshanara Road,
Delhi-110006.
8. Mahinder S/o late Shri Balbir Singh,
R/o 289, Burari, Delhi-110084.
9. Sheela d/o not known.
R/o 4975-76-77, Chowk Mata Mandir,
Roshanara Road, Delhi-110006.
10. Nawabudeen s/o Mohd. Ramzan
R/o 4975-76-77, Chowk Mata Mandir,
Roshanara Road, Delhi-110006.
....Defendants
Date of institution of suit : 25.05.2000.
Date when reserved for Judgment : 30.08.2016
Date of pronouncement of judgment: 14.09.2016
SUIT FOR DECLARATION, POSSESSION, MESNE PROFITS
AND PERPETUAL INJUNCTION.
JUDGMENT
1. By this Judgment, I shall decide the suit for Declaration filed by the plaintiff interalia seeking declaration that property bearing Municipal No. 4975-76-77, near Mata Mandir, Gali Imliwali, Roshanara Road, Subzimandi, (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 5 of 68) CS No.18/16 Delhi admeasuring 1 bigha 18 biswas in Khasra No. 40 and 41, Sadohra Kalan, Delhi (comprising of a bagichi with fruit bearing trees, flower and vegetable plants and some irregular temporary structures, a well, Samadis and a Shivala) (herein after referred as suit property) be declared as a Wakf property and that the plaintiff is the owner thereof. The plaintiff has also sought consequential relief of possession, permanent injunction and mesne profits of the suit property.
2. It is stated by the plaintiff in its plaint that one Mst. Niazi Khanam was the owner in possession of 16 biswas, pukhta, agricultural land and a pakka well on a part of it situated in Sadhohra Kalan, Subzi Mandi, Delhi having inherited the same from her father.
3. As per the memo of parties, the suit has been instituted by IDOL Sadashiv Bhola Nathji Maharaj through its sole surviving Trustee, Shri Mangal Singh. The facts leading to the filing of the instant suit are as follows:
4. It is averred that out of 16 biswas pukhta, agricultural land, the said Mst. Niazi Khanam sold sold 10 biswas pukhta, agricultural land and the pacca well to Ram Dhan alias Ram Deen and Mohan Lal S/o Ram Dhan, caste Kalal (later known as Jaiswals) by a registered Sale Deed dated 23.09.1871 for a consideration of Rs. 50/-. There were fruit bearing trees on the said land. The remaining 6 biswas pukhta of the land was a graveyard no. 640. The said land purchased by (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 6 of 68) CS No.18/16 Ramdhan and Mohan Lal was developed as a bagichi and some temporary tin shed construction was made thereon. An idol of Shivji Maharaj was also installed near the well for personal and private worship. Ramdeen and Mohan Lal were in possession of the said bagichi including the well and the bagichi was called as "Jaiswal Bagichi".
5. It is averred that in Khasra paimaish for Mauza Sadohra Kalan for the year 1880, Mohan Lal s/o Ram Dhan Kalal was indicated as the owner in possession of the said land and the description of the land shown as bagh, a well and a Shivala on the said land.
6. In the Jamabandi of the year 1883-84; 1885-86; 1892- 93, the said land stood mutated and the names of Ram Dhan @ Ram Deen and Mohan Lal Kalal was recorded as the owner in possession thereof. It is stated that after the demise of the first wife of Ram Dhan, who was natural mother of Mohan Lal, her samadhi was constructed near the Shiv Mandir and the well.
7. In 1893-94, Ramdhan died and the suit property was mutated in favour of his second wife Sohan Devi and his elder son Mohan Lal (from his first wife, who had pre- deceased him) and samadhi of Ramdhan was also made next to the samadhi of his first wife near the well in the said baghichi.
8. Vide a registered Sale Deed dated 23.02.1895, Mohan Lal for legal necessity sold his half share in the said land, well and the bagichi, etc. to his step mother Sohan Devi (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 7 of 68) CS No.18/16 for a consideration of Rs. 300/-. Sohan Devi, who had already inherited the half share in the suit property from her husband Ram Dhan Kalal thus became the exclusive owner in possession of the entire property.
9. In 1896-97, the suit property was mutated in the name of Sohan Devi.
10. Vide registered Wakf Deed dated 10.10.1898 Smt. Sohan Devi and her natural son Hira Lal gifted/dedicated and created a Wakf of the entire suit property in favour of the Idol Sadashiv Bhola Nathji Maharaj i.e. the Plaintiff in the suit. Sh. Jalal Gir S/o Kalyan Gir was appointed as its manager and Mutawali to perform pooja path and seva in the already existing Mandir/Shivala. Possession of the entire dedicated property was delivered to the plaintiff through Jalal Gir, Manager and the Mutawali.
11. It is averred that in view of the Wakf Deed dated 10.10.1898, registered on 13.10.1898, the plaintiff, Idol Sada Shiv Bhola Nathji Maharaj became the exclusive owner of the entire suit property and accordingly the entire suit property vested in the plaintiff. Thereafter, Sh. Jalal Gir during his lifetime nominated his chela Bakhtawar Gir of Muzaffarnagar (UP) to became the manager, pujari and mutawali of the plaintiff. After the death of Bakhtawar Gir, his nominated chela Ram Chand became Manager/pujari/mutawali of the plaintiff. Jamabandi of the year 1900-1901 till 1949-50 have been placed on record.
12. It is averred that by settlement in the year 1908-09, (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 8 of 68) CS No.18/16 the previous Khasra No. 784 of the suit property was changed to Khasra No. 638 and 639 and the area of the land comprising baghichi, well and Shivala, etc. became 1 bigha 18 biswas. Subsequently, in the jamabandi of the year 1917-18, Khasra no. 638 and 639 of the suit property were changed to Khasra No. 40-41. The area however, continued to remain 1 bigha 18 biswas. The bagichi was given on theka to one Mohan Lal and thereafter to Budha as thekedar.
13. In the jamabdi of the year 1933-34 Wakf Sada Shiv Bhola Nathji Maharaj under the management of Ram Chander Mutwali is recorded as the owner and the bagichi/ Shivala and the well and other construction are also shown to exist in the property. It is also shown that the land was under self cultivation of the owner. In Jamabandi for the year 1945-46 and 1949-50 one Budha is recorded as the non occupancy tenant/ cultivator in the suit property. It is averred that around 1948, Ram Chander, Manager, Pujari and Mutawali of the plaintiff inducted Mangal Singh son of Uday Singh as a non- occupancy tenant/ cultivator in respect of the suit property of the plaintiff. In 1950-51, Ram Chander Gir died and after his demise Sh. Hira Lal S/o Ram Deen Kalal started managing the Shivala and the Wakf properties himself as its manager and Mutawali thereof.
14. Jama Bandi for the year 1960-61 records Mangal Singh S/o Uday Singh as a non-occupancy tenant/ cultivator of the suit property.
(Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 9 of 68) CS No.18/16
15. Around 1961-62 Sh. Hira Lal became blind and due to his old age , he became incapable of managing the affairs of the Shivala and Bagichi etc. as its Mutawali.
16. On 26.04.1963 vide a Trust Deed, registered on 14.05.1964, Sh. Hira Lal created a trust with the object of maintenance, management and upkeep of Shivala, Samadhies (of his father Ram Deen, his step-mother and natural mother) and Bagichi, appointed four Trustees including Sh. Mangal Singh S/o Sh. Bhagwan Dass.
17. On 31.01.1964, Sh. Hira Lal passed away. In accordance with the Trust Deed, Shri Hira Lal was managing the property alongwith the other trustees till he passed away on 31.01.1964. After the demise of Hira Lal, the four trustees applied for mutation in their name as trustees in Municipal Records as well as in the Revenue Records.
18. Prior to 1964, entry with respect to the suit property in the Municipal Record was as under :
"Property no. 4975/76, Mandir, C/o Pujari Temple, 4975/77, Roshnara Road, Near Mata Mandir, Delhi".
19. On application of Sh. Omkar Singh and others/trustees, the entry in the Municipal records was changed in 1964 to read as under:
"Property no. 4975/76, M/s. Omkar Singh, Mangal Singh, Shobha Ram, Ram Narayan - trustees of Sadashiv Bhola Nathji Mandir"
20. Vide order dated 30.03.1967, Sh. B.M.L. Gaumut, (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 10 of 68) CS No.18/16 SDM/SA Delhi directed that the names of Omkar Singh, Mangal Singh, Shobha Ram, Ram Narayan be mutated as trustees in respect of Suit property in place of Sh. Ram Chander.
21. Vide order dated 25.01.1968, the Naib Tehsildar, Delhi confirmed the mutation in favour of the said trustees and the following entry was made in the Revenue Records.
"Wakf (Trust) Sada Shiv Bhola Nath Maharaj under the management of Omkar Singh, Mangal Singh, Shobha Ram and Ram Narayan trustees"
22. On 22.10.1972, Mangal Singh S/o Uday Singh expired.
23. In the Jamabandi of the year 1978-79, Smt. Shyamo W/o Late Mangal Singh s/o Shri Uday Singh has been shown as non-occupancy (Gair Maurusi) cultivator, while Sada Shiv Bhola Nathji through the trustees is recorded as the owner of the properties.
24. Around 1996-98 after the death of Smt. Shyamo Devi, defendant no. 1 to 5 were recorded as non-occupancy (Gair Maurusi) cultivator in respect of the suit property in Khasra Girdawari.
25. It is averred that in August, 1997, Defendant no. 1 to 5 in collusion with Defendant no. 6 to 10 with a view to dispossess the Plaintiff and grab the suit properties threatened to construct an unauthorized commercial complex by cutting the fruit bearing trees and removing (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 11 of 68) CS No.18/16 and demolishing the Shivala and Samadhies in the suit property. It is stated that Defendants no. 6-10 are also holding portions of the property at the instance and instigation of Defendants No. 1 to 5. It is stated that Defendants No. 6 to 10 have been inducted by illegally and unauthorizedly by Defendants no 1 to 5 are also in illegal and unauthorized occupation of the suit property.
26. Accordingly, the Plaintiff filed suit no. 1860 of 1997 for perpetual injunction against defendants no. 1 to 5 in the Hon'ble Delhi High Court, seeking to restrain the Defendants from dispossessing the plaintiff from the suit property or to alienate or construct anything on the suit property. On an application under order 39 Rule 1 and 2 CPC, the parties were directed to maintain status quo with regard to possession/construction and title in respect of the suit property.
27. It is averred that in the Written Statement filed by Defendant no. 1 to 5 on 06.11.1997 in CS (OS) 1860 of 1917, the Defendants denied the Plaintiff's title to the property and alleged to have become owners by adverse possession. The creation of Wakf and permanent dedication of the suit property to the plaintiff and the trust created for its management were also denied.
28. In such a scenario the Plaintiffs filed the present suit in May, 2000 praying interalia that a Decree for Declaration that the suit property may be declared as a Wakf property and that it is owned by the Plaintiff alongwith the consequential relief of possession in favour of the (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 12 of 68) CS No.18/16 Plaintiff. The Plaintiff has also prayed that the Defendants be directed to demolish the structure raised by them over the suit property. The Plaintiff has prayed for a decree of mesne profits and also a decree for perpetual injunction against the Defendants.
29. A common Written Statement to the present suit was filed on behalf of Defendant no.1 to 5 and 8 to 10. The Defendants have raised a preliminary objection that the suit is barred Under Order 2 Rule 2 CPC. It is contended that the relief of declaration, possession and mesne profits was available to the Plaintiff even at the time of filing the earlier suit which it failed to seek in the earlier suit and hence instant suit is barred Under Order 2 Rule 2 CPC. The Defendants also pleaded that the suit is barred by limitation. It is stated that the order of the SDM dated 30.03.1967 makes it apparent that Mangal Singh S/o Uday Singh claimed title by adverse possession in respect of the suit property. The instant suit having been filed after a lapse of 36 years from the date of knowledge of adverse possession is barred by limitation.
30. The Defendants contended that the suit is liable to be rejected Under Order VII Rule 11 CPC as the same is barred by time and also because it is under valued for the purposes of court fees and jurisdiction.
31. It is also contended that the Defendants 1 to 5 are in adverse possession of the suit property for more than last 50 years and have continued to remain in (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 13 of 68) CS No.18/16 possession and enjoyment of the property in derogation of the right, title and interest of the Plaintiff. The Defendants have also contended that the Plaintiff has no locus standi to file the present suit in absence of any legal right in respect of the suit property. On merits, the Defendants have disputed the contents of the plaint and the ownership of the Plaintiff and have asserted their ownership by adverse possession.
32. A separate Written Statement was also filed on behalf of Defendant no. 6 who has admitted the right, title and interest of the Plaintiff in respect of the suit property. Defendant no. 6 has further averred that Defendant no. 6 is a Pujari in the property and that the occupation of Defendant no. 6 of the suit property is permissive. Defendant no. 6 has also denied that it has colluded with other Defendants. Defendant no. 6 has averred that it has no independent right, tittle or interest in the suit property.
33. No written statement has been filed on behalf of Defendant No. 7. The Legal Representatives of deceased Defendant No. 7 were proceeded exparte on 22.5.2009 on which date Legal Representatives of deceased Defendant No. 6 were also proceeded exparte.
34. In its Replication, the Plaintiff has denied that the suit is barred under the provisions of Under Order 2 Rule 2 CPC and has averred that the cause of action in the instant suit and the previous suit is entirely distinct. The Plaintiff has also denied that the suit is barred by (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 14 of 68) CS No.18/16 limitation and the suit is liable to be dismissed Under Order 7 Rule 11 CPC. The Plaintiff has denied that the Defendants are in adverse possession of the suit property. The plaintiff has denied that it has no locus standi to file the suit. The Plaintiff has denied the other preliminary objections raised by the Defendants. The Plaintiff has reasserted and reaffirmed the contents of the plaint.
35. On the basis of the pleadings and the documents, following issues were framed in the matter:
(1) Whether the suit is barred by limitation? OPD. (2) Whether the suit is properly valued for the purposes of court fees and jurisdiction? OPP. (3) Whether the defendant no. 1 to 5 are owners of suit property by adverse possession as alleged in WS? OPD (4) Whether the Plaintiff is the owner of the suit property? OPP (5) Whether the suit is barred U/s 48 of Indian Trust Act? OPD (6) Whether the plaintiff is entitled to damages for use and occupation and if so from whom and at what rate and to what amount ? OPP.
(7) Relief.
36. In order to prove its case, the Plaintiff has examined PW-1 Shri Mangal Singh s/o Shri Bhagwan Dass, Manager-cum-Sole Surving Trustee of Idol Sadashiv (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 15 of 68) CS No.18/16 Bholanathji Maharaj; PW-2 Shri Nasir Mirza, Inspector, House Tax Department, Sadar Paharganj Zone, New Delhi.
37. On the other hand, the Defendants have examined Sh.
Ram Singh s/o sh. Mangal Singh, s/o Uday Singh as D-1- 5/W1, ; D1-5/W2 Sh Gurmeet Singh, Zonal Inspector, House Tax Department; DW-1-5/W3 Shri Kamlesh Saha, Jr. Judicial Assistant from RKD (Original) Branch, Hon'ble Delhi High Court; DW-1-5/4, Shri Mukesh Kumar Sharma, from NDPL, Shakti Nagar, Delhi; and DW-1-5/W-5 Smt. Raj Rani, LDC from the Office of SDM, Civil Lines, Delhi. Sh Ramesh Kumar, son of Defendant no 6 deposed as D6/W1; Defendant no 8 was examined as D8/W1; Defendant no 10 was examined as D10/W1.
38. The issuewise findings are as under:
Issue No.4 is being decided before other issues since the findings in this issue would be necessary to determine other issues.
Issue No.4: Whether the Plaintiff is the owner of the suit property? OPP.
39. Onus to prove the issue is on Plaintiff. In support of its case, the plaintiff has relied upon the statement of its witness, Sh. Mangal Singh Jaiswal, i.e., PW1. PW1 has averred that he was the sole surviving trustee of Idol Sada Shiv Bhola Nath Ji Maharaj and therefore, was deposing upon the facts of the case. In order to prove the title of the Plaintiff and locus standi of the Trustee (Mangal Singh) to institute the suit, PW1 relied upon the (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 16 of 68) CS No.18/16 following documents:(1) Attested true copy of the Sale Deed dated 23.09.1871, Ex.P1 (executed by Niari Khanam) and its translation Ex.P-1/T - duly registered on 25.09.1871 in respect of 10 Biswas Pukhta Agricultural land and Pacca Well in favour of Shri Ram Dhan alias Ram Deen s/o Nihal Chand and Shri Mohan Lal s/o Ram Dhan [from his first wife (caste Kalal (later known as Jaiswals)] for a consideration of Rs.50/- only.
PW1 has deposed that the Idol of Shivaji Maharaj was installed near the Well and the Bagichi was called Jaiswal bagichi;
(2) Ex.P2 (translation Ex.P-2/T) - Certified copy of Khasra Paymaish for Mauza Sadohra Kalan for the year 1880 giving the measurements and other particulars of the land, showing Mohan Lal s/o Ram Dhan Kalal as owner in possession and the description of the land is shown a bagh, well and Shavala;
(3) Ex.P3, (translation Ex.P3/T), Ex.P4 (translation Ex.P4/T) and Ex.P5, (translation Ex.P5/T) Certified copies of Jamabandies for the years 1883-84, 1885- 86 and 1892-93 respectively of the land etc., indicating the names of owners in possession as Ram Deen s/o Nihal Chand and Mohan Lal s/o Ram Deen. It is deposed that after the demise of first wife of Shri Ram Dhan W Ram Deen, who was natural mother of Mohan Lal, her samadhi was built near the Shiv Mandir and Well. It is further deposed that Ram Dhan died in 1893-94 and the suit property was mutated in favour of his second wife Sohan Devi and his elder son Mohan Lal.
(Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 17 of 68) CS No.18/16 Samadhi of Ramdhan is stated to have been made next to Samadhi of his first wife.
(4) Ex.P6, (translation Ex.P6/T), (Original lost and not traceable), Certified copies of Sale Deed dated 23.02.1995, registered on 04.03.1895, indicating that Mohan Lal S/o Ram Dhan sold his entire ½ undivided right, title and interest in the suit property to his step mother Sohan Devi for a consideration of Rs.300/-. Accordingly, Sohan Devi is stated to have become owner of the entire property. (5) Ex.P7, (translation Ex.P7/T), Certified copies of Jamabandi for the year 1896-97 indicating mutation in the revenue records in the name of Smt. Sohan Devi (also known as Sohan Dai) and the status of the property as possessed by the owner;
(6) Ex.P-8/A, Certified copy (Translation Ex.P8/T) of Waqf Deed dated 10.10.1898, registered on 13.10.1898, indicating that Mst. Sohan Devi W/o late Ram Dhan Kalal and her natural son Hira Lal gifted/ dedicated the suit property in favour of IDOL Sadashiv Bhola Nathji Maharaj and appointed Jalal Gir s/o Kalyan Gir as Trustee of the Shivala and Bath to perform puja path and sewa in the already existing Mandir/ Shivala and possession of said entire dedicated property was delivered to the Plaintiff through Jalal Gir; (7) Ex.P-9 (Translation Ex.P-9/T) and Ex.P-10 (Translation Ex.P-10/T), certified copies of jamabandi for the years 1900- 1901 and 1904-05 respectively. Shri Jalal Gir nominated that his Chela Bakhtawar Gir as the Manager/ Mutawali/ Pujari of the Wakf and thereafter Bakhtawar Gir nominated Chela Ram (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 18 of 68) CS No.18/16 Chand as the Manager, Pujari and Mutawali of the Plaintiff; (8) Ex.P11 (Translation Ex.P11/T), certified copy of the Jamabandhi for the year 1908-09 indicating that previous Khasra No.784 of the suit property was changed to Khasra Nos. 38 & 39 and the area of the land comprised in Bagichi Jaiswal, etc. became 1 Bigha 18 Biwas. Shri Ram Chander, Chela of Bakhtawar Guru is recorded as the owner. (9) Ex.P12 (Translation Ex.P12/T), certified copy of Jamabandi for the year 1917-18, indicating that Khasra Nos. 38 & 39 of the suit property were again changed to Khasra Nos. 40 & 41, Shri Ram Chander, Chela of Bakhtawar Guru is reflected as the owner.
(10) Ex.P13, certified copy of jamabandi for the year 1929- 30, indicating that the fruits, flowers and vegetable etc. grown in the Bagichi were given on Theka (contract) to Mohan Lal casti Mali and Shri Ram Chander, Chela of Bakhtawar Guru was recorded as the owner. (11) Ex.P14, certified copy of the Jamabandi for the year 1933-34 indicating that Waki Sada Shiv Bhola Nath Ji Maharaj, under the management of Ram Chander, Mandir, is recorded as the owner and Bagichi Shivala as well as Well & construction etc. are also shown to exist in the property and also that the land was under the self cultivation of the owner. It also records name of Thekedars as Budha, Kallu as Mali. (12) Ex.P15 (Translation Ex.P15/T), certified copies of the Jamabandis for the year 1945-46, and for the year 1949-50, (13) Ex.P16 (Translation Ex.P16/T) certified copy of jamabandi for the year, 1949-50 indicating that Budha s/o (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 19 of 68) CS No.18/16 Kaloo is the non occupancy tenant/ cultivator in the suit property. The owner of the property is recorded as Trust Sada Shiv Bhola Nathji Maharaj under the management of Ram Chander Guru, Incharge, Mandir.
(14) Ex.P17, (Translation Ex.P17/T) certified copy of the Jamabandi for the year 1960-61 indicating Mangal Singh s/o Uday Singh as the non-occupancy tenant/ cultivator (Kast Kar) of the suit property. The entry in columns No.5 and 13 of the Jamabandi for the year 1960-61 was as under:
"(5) Wakf Sada Shiv Bhola Nath Maharaj under the management of Ram Chander Gir, Mutwati Mandir and (13) due to Wakf, it was exempted to pay land revenue".
(15) Ex.P18 (Translation Ex.P18/T), original Trust Deed dated 26.04.1963 registered on 14.5.1964 executed by Shri Hira Lal s/o Ram Dhan @ Ram Deen appointing Trustees including Mangal Singh s/o Shri Bhagwan Dass for the Maintenance, Management and up-keep of Shivala and the Samadhis of his father Ram Dhan, step-mother and natural mother and also the Bagichi etc. Ex.P-19, plan annexed with Trust Deed, which is a part of Ex.P18.
(16) Ex.P20, certified copy of Death Certificate of Hira Lal s/o Ram Dhan indicating that he died on 31.01.1964. (17) Ex.P21 (Translation Ex.P21/T), copy of House Tax Register of the MCD, (18) Ex.P22 certified copy of Jamabandi for the year, 1978- 79 indicating that Smt. Shamo w/o late Mangal Singh s/o Uday Singh as the non-occupancy (Gair Maurusi) cultivator (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 20 of 68) CS No.18/16 while Sada Shiv Bhola Nath Ji, through the Trustee is recorded as the owner of the property.
(19) Ex.P23, certified copy of Khasra Girdwari for the years 1996-98 indicating that Defendants No.1 to 5, after the death of Smt. Shamo Devi, are recorded as (Gair Maursi) non- occupancy cultivators in respect of the suit property. The owner of the suit property has been indicated Wakf, Sada Shiv Bhola Nathji Maharaj.
(19) Ex.P24, Original House Tax Bill of the suit property raised by Municipal Corporation of Delhi upon Mandir, c/o Pujari Temple. .
(20) Ex.P25, carbon copy of Application dated 06.02.1964, to the Tehsildar by Shri Mangal Sigh for mutation of the suit prooerty in the name of Sada Shiv Bhola Nathji Maharaj through the Trustees mentioned in the Application. (21) Ex.P26, carbon copy of Application dated 06.02.1964, made by Mangal Singh before the Zonal Officer, MCD, for mutation of the names of the Trustees of Mandir Sada Shiv Bhola Nathji Maharaj.
(22) Ex.P29 to Ex.P31, Property Tax Bills of the suit property, raised by MCD on Onkar Singh, Mangal Singh, Shobha Ram and Ram Narain - Trustees of Sada Shiv Bhola Nathji Maharaj Mandir.
(23) Ex.P35, True copy (admitted) of Order dated 30.03.1967 passed by Shri B.M.L. Gaumat, SDM, Delhi whereby names of Onkar Singh, Mangal Singh, Sobha Ram and Ram Narain were mutated as Trustees of the suit property.
(Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 21 of 68) CS No.18/16 (24) Ex.P37, Ex.P38, & Ex.P39: Negatives of photographs of Shivala as well as the Samadhis.
(28) Ex.P40, Ex.P41, & Ex.P42: Photographs of the respective negatives.
(26) Ex.P43 - site plan showing the property in question.
40. The plaintiff has accordingly contended that vide the entire chain of documents exhibited by PW1, it is evident that the suit property vests in Idol Sadashiv Bhola Nathji Maharaj. It is deposed by PW1 that in the year 1898, the entire land and the Bagichi alongwith fruit bearing trees, Well, etc. was gifted/ dedicated to Idol Sadashiv Bhola Nathji Maharaj vide Registered Wakf dated 10.10.1898 (Ex.P8-A) of the said property by Smt. Sohan Devi and natural son Hira Lal Kalal. Vide the said Wakf Deed, Sh. Jalal Gir son of Sh. Kalyan Gir was appointed as its Manager and Mutawali to perform Puja Path and Sewa in the already existing Mandir /Shivala. It is averred that after the demise of Jalal Gir, Sh. Chela Ram was appointed as a Manager, Pujari and Mutawali of the plaintiff in the year 1900-1901. It is averred that in Ex. P-13, Jamabandi for the year 1929-1930 and 1933-34 respectively, it is reflected that the Bagichi was given on theka to Mohan Lal and thereafter to Budha as Thekedars. It is deposed by PW1, that Sh. Ram Chander Gir, who was inducted as a Manager, Pujari and Mutawali of the plaintiff inducted Sh. Mangal Singh, son of Sh, Uday Singh Saini as a non-occupancy tenant/cultivator in (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 22 of 68) CS No.18/16 respect of suit property of the plaintiff in the year 1948. Sh. Ram Chander Gir passed away and after his demise Sh. Hira Lal s/o Ram Dhan, who had executed the earlier Wakf Deed dated 10.10.1898 (Ex.P-8A) started managing the Shivala and the Wakf Property in the suit property as its Manager and Mutawali thereof. The plaintiff has vehemently contended that Mangal Singh s/o Uday Singh has been reflected as only a non- occupancy tenant/cultivator in the suit property in the Jamabandi of the year 1960-61. It is stated that Sh. Mangal Singh, who was the father of defendants no. 1 to 5 was never the owner of the suit property and was only in permissive possession of the suit property in the capacity of a non-occupancy tenant or a cultivator to take care of the Bagichi. It is averred that in 1961-62, Sh. Hira Lal became blind and due to his old age, he could not manage the affairs of the Shivala and the Bagichi as Mutawali and therefore, vide a Trust Deed (Ex.P-18) executed on 26.04.1963, registered on 14.5.1964, Sh. Hira Lal, son of Sh. Ram Dhan solely with the object of and for the purposes of maintenance, management and upkeep of Shivala, the Samadhis of his father and of his mother and step-mother as also of the Bagichi, appointed trustees to take care of the above. It is further averred that vide order of Shri B.M. L. Gaumat, S.D.M./R.A., Delhi dated 30.03.1967 (Ex.P35), the names of Sh. Mangal Singh and the other trustees was mutated as trustees in respect of the suit property in place of Sh.
(Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 23 of 68) CS No.18/16 Ram Chander. It is averred that subsequently, vide order dated 25.01.1968, the Naib Tehsildar confirmed the mutation of the suit property in favour of the said trustees and accordingly, the following entry was made in the revenue records "Wakf (Trust) Sadashiv Bholanath Maharaj under the management of Omkar Singh, Mangal Singh, Shobha Ram and Ram Narain trustees"
which is reflected in the Jamabandi of the year 1964.
41. It is contended by the Plaintiff that after the creation of the initial Wakf on 10.10.1898, the entire suit property has vested in favour of Idol Sadashiv Bholanath Maharajji, who is the plaintiff in the present case. It is averred that the suit property has thereafter, vested only in the name of God and various Managers, Pujaris and Mutawalis were appointed from time only for the purpose of management of the suit property. It is stated by the plaintiff that Idol Sadashiv Bhola Nath Maharajji has been indicated as the owner of the suit property in various Jamabandis over a period of time as stated herein above. It is contended by the plaintiff that in the year 1963-64 vide a registered Trust Deed, Sh. Hira Lal had created a Trust only for the purposes of management of the suit property. The said Trust Deed in no manner vested the suit property in the trustees nor did Sh. Hira Lal create any trust with respect to the suit property. The suit property vested in Idol Sadashiv Bholanath Maharaj pursuant to creation of Wakf in 1898.
42. Ld. Counsel for the defendant has vehemently (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 24 of 68) CS No.18/16 contended that once Smt Sohan Devi and her son Hira Lal dedicated the suit property to Idol Sadashiv Bholanath Maharajji, vide the Wakf Deed dated 10.10.1898 (Ex. P-8A) then, on 26.4.1963, a Trust Deed could not have been executed, yet again, in respect of the suit property by Sh. Hira Lal, who had dedicated the suit property in favour of Idol Sadashiv Bhola Nathji Maharaj previously by creating of a Wakf in 1898.
43. Perusal of the Wakf Deed dated 10.10.1898 (Ex.P8A) indicates that the property was vested in 19898 in Idol Sadashiv Bhola Nathji Maharaj, i.e. the Plaintiff vide the said regitered Wakf Deed and Shri Jalal Gir was appointed as Manager/ Mutawali to perform puja-path and sewa.
44. The recital of Trust Deed (Ex P18) shall also be relevant for the purposes of understanding the true import thereof. The Trust Deed interalia records that the suit property was permanently dedicated to Sadashiv Bhola Nathji Maharaj by Shri Hira Lal and his desceased mother Smt Sohan Devi. It is further recorded therein that the suit property has been mutated in the revenue records as per rules in the name of Sadashiv Bhola Nathji Maharaj and Shri Ram Chander Gir was its mutawali and after his demise, Shi Hira Lal himself was managing the property. The trust Deed further narrates that at the time of permanently dedicating the property, the temple of Sadashiv Bhola Nathji Maharaj was already present. It also states that (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 25 of 68) CS No.18/16 samadhis of his step mother, father and real mother exist there. The trust Deed further recites that Shri Hira Lal was blind and very old and therefore expressed his desire to form a trust regarding the temple and other residential areas which is one bhiga 10 biswas so that the status of temple, residential area, samadhis etc may remain intact and accordingly Shri Hira Lal appointed Shri Omkar Singh, Shri Mangal Singh S/O Shri Bhagwan Das, Shri Shobha Ram and Shri Ram Narain as trustees. It is further mentioned therein that the trustees shall remain in possession of the property and spend the entire benefit on the trust and may let out or lease out the property in the name of the temple, however, they will not be entitled to mortgage or sell whole or any part of property.
45. It is thus evident from the above that suit property stood permanently dedicated to Idol Sadashiv Bhola Nathji Maharaj via Ex P8A ie the Wakf Deed dated 10.10.1898 and the Trust Deed (Ex P18) also acknowledges the said fact. The Trust Deed executed on 26.04.1963 by Sh. Hira Lal while acknowledging the prior dedication in Idol Sadashiv Bholanath ji Maharaj was exclusively for the purpose and object of maintenance, management and upkeep of Shivala and its properties. No fresh vesting of the property was done in Idol Sadashiv Bholanath Maharajji or the Trust vide the said Trust Deed. As noted above, the property never vested in its Manager on creation of the Wakf and it was (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 26 of 68) CS No.18/16 unequivocally vested in the deity vide the said Wakf Deed and Sh. Jalal Gir was appointed as Manager/Mutawali to perform puja path and sewa. Therefore, any subsequent trust created for the purposes of management of the property of the deity, who is a juristic entity would not tantamount to fresh vesting of the property in the trustees vide the Registered Trust Deed dated 26.4.1963 (Ex P18).
46. In Anand Chandra v Broja Lal, A.I.R 1923 Cal. 142, it was held that where a shebait appointed by the founder fails to nominate a successor in accordance with the conditions or usage of the endowment, the office reverts to the founder and his representatives and the same principle will apply to a case where no provision has been made by the founder, for the appointment of fresh trustees after the death of those originally appointed. The said principal was also followed in Kashinath Mahadev v Gangubai, AIR 1929 Bom 193.
47. Accordingly, in light of the above, it is evident that the suit property vested solely in Idol Sada Shiv Bhola Nath Ji Maharaj since 1898 and the Trust Deed dated 26.4.1963 (Ex P18) also records the said fact. Moreover, in terms of Anand Chandra v Broja La (supra) where a shebait appointed by the founder fails to nominate a successor or where no provision has been made by the founder, for the appointment of fresh trustees after the death of those originally appointed, the office would revert to the founder, who in the instant case was Sh. Hira Lal who (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 27 of 68) CS No.18/16 was the creator of the Wakf in the year 1898. Since no mutawali/ manager/ pujari stood appointed by Sh. Ram Chander Gir, Sh. Hira Lal was thus competent to execute the Trust Deed in 1963 (Ex P 18), for purpose of management of the properties vested in Idol Sada Shiv Bhola Nath Ji Maharaj in the year 1898. Viewed in this light, the plea of the defendant that once the property stood vested in the Wakf in the year 1898, Sh. Hira Lal could not have again vested the same property by way of a Trust in the trustees through the registered Trust Deed executed in the year 1963 (Ex P 18) is without any merit.
48. The Defendants have contended that the Plaintiff has no locus standi to file the suit in absence of any legal right in respect of the suit property. It is averred by Defendants No. 1 to 5 that the suit has been instituted by the Trustees who have no right in the suit property and, therefore, the suit has not been properly instituted.
49. Perusal of the Plaint reveals that the suit was originally instituted by Idol Sadashiv Bhola Nath ji Maharaj represented by Sh Mangal singh Jaiswal, its Manager cum Sole surviving Trustee. Ld. Counsel for the plaintiff has placed reliance upon the judgment in the matter of Vishwakarma Mandir Trust Vs. MT. Munnu Devi and Ors, AIR 1986 Patna 158, wherein it has been held that "deity being a juristic person, the suit by a trustee being a Manager or the person involved with the state of affairs will be a competent person who can (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 28 of 68) CS No.18/16 maintain the suit alone".
50. In the said judgment, the Hon'ble High Court has also referred to the extracts from the book "B.K. Mukerjee on Hindu Law of Religious and Charitable Trust, Tagore Law Lectures" 5th Edition by A.C. Sain at page 203, wherein it has been stated that in English Law, the legal estate in the trust property vests in the trustee who holds it for the benefit of cestui que trust. In Hindu Religious Law, the entire ownership of the dedicated property is transferred to the diety or the institution itself as a juristic person and the Shebait or Mahant is a mere Manager. Therefore, "A Trust" in the sense in which the expression is used in English Law is unknown in the Hindu system. It is further observed that under the Hindu Law, the image of the diety of the Hindu Pantheon is a juristic entity, vested with the capacity of receiving gifts and holding property. It is also observed that called by whatever name, it is only the Manager and the Custodian of the Idol, is required to complete the transaction is effected by human agency. It is observed that in almost every case, the Manager is given the right to a part of the usufruct, the mode of enjoyment and the amount of usufruct depending again on usage and custom. It is pertinent to note that it has also been observed that in no case was the property conveyed to or vested in him, the trustee nor is he a trustee in the English sense of the term. Although, he is answerable as the trustee in the general sense of the term for mal-
(Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 29 of 68) CS No.18/16 administration.
51. In Shri Vidya Varuthi Tirth Swamy Gal Vs. Baluswamy Ayyar & Others; 1922 PC 123, date of decision 05.07.1921, also the principle laid down in the above Judgment was followed and it was further elucidated that the conception of a Trust apart from a gift was introduced in India with the establishment of Moslem Rule. And it is for this reason that in many documents of later times in the parts of the country where Mahommedan influence has been predominant, such as upper India and the carnatic, the expression "Wakf" is used to express dedication. It is also explained therein that when once it is declared that a particular property is Wakf, or any such expression is used as implies Wakf, or the tenor of the document shows, that a dedication to pious or charitable purposes is meant, the right of the Wakf is extinguished and the ownership is transferred to the Almighty. The Manager of the Wakf is the Mutawali, the Governor, Superintendent. It is also observed that the Mutawali does not have any right in the property belonging to the Wakf; the property is not vested in him and he is not a Trustee in the technical sense. It is further observed that in view of this fundamental difference between the juridicial conceptions on which the English Law relating to Trusts is based and those which form the foundations of the Hindu and the Mahommedan systems that the Indian Legislature in enacting the Indian Trusts Act of 1882 (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 30 of 68) CS No.18/16 deliberately exempted from its scope the Rules of Law applicable to Wakf and Hindu religious endowments.
52. Accordingly, in the light of the above, a deity being a juristic entity under Hindu Law is vested with a capacity of receiving gifts and holding property. A Trustee/ Shebait/ Mutawali called by whatever name is only a Manager and Custodian of the Idol or the Institution. In no case, the property vests in him and nor is he a trustee in the English sense of the term. Neither under Hindu Law nor in Muslim system is any property "conveyed" to a Shebait or Mutawali in the case of a dedication nor is the property vested in him. Whatever property he holds for the Idol or the Insitution, he holds the same as a Manager with certain beneficial interests regulated by custom and usage. A Mutawali is merely a Manager. He is accordingly not a trustee as understood in the English system.
53. It is pertinent to note that Shri Ram Singh, D1-5/W1 also admitted that the suit property vests in Idol Sada Shiv Bhola Nath Ji Maharaj. Additionally, he deposed that Shri Jalal Gir was the Guru of Gurus, he was the first Guru (Sh. Jalal Gir was appointed as Manager / Mutawali by Smt. Sohan Devi and Sh. Hira Lal vide the Wakf Deed dated 10.10.1898). D1-5/W1 admitted that Shri Jalal Gir was appointed to perform Pooja / Sewa in the already existing Mandir / Shivala. He also admitted that Jalal Gir in his life time nominated Bhaktwar Gir as the Manager, Poojari and Mutawali of Idol Sada Shiv Bhola Nath JI (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 31 of 68) CS No.18/16 Maharaj.
54. It is relevant to note that the instant suit has been instituted in the name of Idol Sadashiv Bholanath Ji Maharaj, i.e., the deity, through its trustees. The trustees, being the Manager of the property in the Hindu sense of the term, the property does not vest in them and they are only human agencies through which the suit has been instituted in the name of Idol Sadashiv Bholanath Ji Maharaj.
55. It is also settled law that the suit can be brought in the name of the idol.
56. In the case of Jodhi Bai v. Basdeo Prasad [1911] 38 All. 735 : 11 I.C 47 in which it was held that inasmuch as an idol is a juristic person capable of holding property, a suit respecting property in which an idol is interested is properly brought or defended in the name of the idol, although necessarily the proceedings in the suit must be carried on by some person who represents the idol, usually the manager of the temple in which the idol is installed. It was held that the manager of the idol is not personally interested in the suit, and can sue on behalf of the idol.
57. In Shree Mahadoba Devasthan v Mahadba Ramji Bidkar and others, AIR 1953 Bom 38, it has been held that a Hindu image or idol is a juridical person capable of holding property and also capable of suing or being sued in regard thereto. If the suit is filed in the name of the image or idol, the image or the idol would be a proper (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 32 of 68) CS No.18/16 plaintiff, though of necessity it would have to be represented in the suit by its manager or shebait. If the manager or the shebait on the other hand, chooses in vindication of his right to sue for the protection of the properties to file a suit in his own name, he may do so. But that would be no bar to the right of the image or the idol to file such a suit if it chose to do so.
58. Accordingly, in light of the aforesaid, the contention of the defendant that the instant suit could not have been instituted by the trustees is entirely mis-conceived since the suit has been instituted in the name of Idol Sadashiv Bholanath Ji Maharaj as the Plaintiff, admittedly in whom the suit property vests and who has a right to sue although the proceedings in the suit are being carried on by trustees who represent the idol. The suit filed in the name of Idol Sadashiv Bholanath Ji Maharaj through the trustees is accordingly a duly instituted suit and the Plaintiff has the requisite locus standi to file the suit.
59. It is further contended by the Ld. Counsel for Defendants No. 1 to 5 that the documents relied upon the Plaintiff in order to prove its title which are in Urdu language cannot be relied on in as much as the Plaintiff has not examined the translator of the aforesaid documents. It is contended that even though the documents are more than thirty years old and a presumption under section 90 of Indian Evidence act, 1872 is attracted qua such documents, however, the documents were translated in the year 2002, but the (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 33 of 68) CS No.18/16 translator of the documents has not been examined in order to prove the correctness of the translation of the said documents including Ex. P8, Ex. P-18 , Ex. P-1, Ex. P6A and others. In the cross-examination of PW-1, PW-1 has denied the suggestion that the translations are not correct or that the said documents are forged and fabricated. In this connection, it is relevant to note that a translation of the documents has been placed on record by the plaintiff. Burden of Proving that the said translations are incorrect, is on the Defendants. A mere suggestion that the documents including the said translations are forged and fabricated will not suffice to hold that the said translations are incorrect/ forged/ fabricated. Defendant has not produced any evidence or put forth any other translation of the said documents in order to controvert the translations put forth by the Plaintiff. In the absence of any evidence to the contrary, the translations on record are treated as true and correct translations of the aforesaid documents. The contention of the Defendant in this regard is accordingly not acceptable.
60. Further, the Ld counsel for Defendants no. 1 to 5 has asserted that the Sale Deed dated 23.09.1871 (Ex.PW1/1) executed by Niazi Khanam in favour of Ramdhan @ Ramdeen and Mohan Lal son of Ram Deen, is not proved on record since a certified copy thereof has not been filed on court record and what has been filed is a copy attested by the Oath Commissioner as Ex P1. In (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 34 of 68) CS No.18/16 this perspective, a perusal of Ex. P-6, ie the Sale Deed dated 23.02.1895, registered on 04.03.1895 whereby Mohan Lal sold his entire half undivided share in the suit property to his step-mother Sohan Devi, shows that the factum of execution of the Sale Deed dated 23.09.1871 is recorded and acknowledged therein. Moreover, the Wakf Deed dated 10.10.1898 (Ex.P8) also records the factum of execution of Sale Deed dated 23.09.1871. In Khasra paimaish for the year 1880 Ex.P2, Ramdeen and Mohan Lal S/o Ramdeen, Caste Kalal have been indicated as the owner of the suit property. Jama Bandi for the year 1883-1884, Ex.P3, (1885-86), Ex.P4 and (1892-93) Ex.P5 show Ramdeen and Mohan Lal S/o Ramdeen as the owner of the suit property. In such circumstances, the contention that the Sale Deed dated 23.09.1871 has not been proved by the plaintiff, cannot be accepted since the said transaction pertains to the year 1871 and the same is also corroborated by the subsequent documents Ex. P-6 and Ex.P8 as mentioned herein above which record the factum of execution of the Sale Deed by Niazi Khanam in 1871. The jamabandies Ex.P2, P3, P4, P5 also reflect Ramdeen and Mohan Lal s/o Ramdeen as the owners in possession of the said property. Even otherwise, the said Sale Deed has not been challenged till date. Eventually a Wakf Deed was executed on 10.10.1898 (Ex. P-8) in favour of Idol Sadashiv Bhola Nathji Maharaj . Admittedly, the suit property vests in Idol Sadashiv Bhola Nathji Maharaj.
(Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 35 of 68) CS No.18/16 D1-5/W1 has also admitted vesting of the property in Idol Sadashiv Bhola Nathji Maharaj. An attested copy of the Sale Deed (Ex.P-1) is on record. The said copy was attested on 06.05.1960 by the Oath Commissioner as true copy. Even otherwise, the said Sale Deed (Ex.P1) executed in 1871 has not been challenged earlier and subsequent transactions have been entered into, on faith of the said documents. The objection raised by Defendants No.1 to 5 is only an after thought when the factum of vesting of the property in Idol Sadashiv Bhola Nathji Maharaj has been admitted by D1-5/W1 himself. In such circumstances, the contention of Defendants No.1 to 5 in this regard is untenable.
61. It is further contended by Ld. Counsel for the Defendant that the Trust Deed dated 26.04.1963, registered on 14.5.1964 (Ex P18) executed by Hira Lal has not been proved by the Plaintiff as neither the executor nor the witnesses of the said Trust Deed have been examined by the Plaintiff. It is further contended that the said Trust Deed was executed on 26.04.1963, however, the same was registered on 14.05.1964, after the demise of the executant thereof, Shri Hira Lal. It is urged that no explanation has been given by the Plaintiff as to why the registration was affected after the demise of Shri Hira Lal. However, perusal of the Trust Deed (Ex. P18) reveals that the same was executed on 26.4.1963 and presented for registration before the sub-Registrar Delhi on 29.04.1963 ie three days after its execution as (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 36 of 68) CS No.18/16 is evident on record which was during the life time the executant, Shri Hira Lal and therefore the contention of the Defendant in this regard is unfounded. Moreover, in view of the fact that the said trust Deed (Ex. P18) was executed in 1963 and registered in 1964 and has been produced from the custody of the Plaintiff which is proper custody considering the fact and circumstances of the case, therefore the same would be protected under the provisions of Section 90 of the Indian Evidence Act, 1872 and the presumption as regards a document more than 30 years old shall apply thereto. Mere averment of the Defendant that the said trust Deed has not been proved in accordance with law in absence of the examination of the executant or the witnesses would not suffice to displace the presumption of genuineness of the Trust Deed Ex. P18 under Section 90 of the Indian Evidence Act,1872.
62. The Plaintiff has filed the Certified copies of the entire chain of documents in support of its title to the suit property. Certified copies are presumed to be genuine under Section 79 of the Evidence Act. All the documents exhibited by the Plaintiff are public documents that are more than 30 years old. It is settled law that presumption under Section 90 of the Evidence Act in respect of 30 years' old document coming from proper custody relates to the signature, execution and attestation of a document i.e. to its genuineness but it does not give rise to presumption of correctness of every statement (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 37 of 68) CS No.18/16 contained in it. The presumption is a rebuttable presumption. The Defendants have however, neither pleaded nor produced any evidence on record to displace the presumption under Sec.79 and 90 of Evidence Act. The objections of the Defendant qua the Trust Deed (Ex P18) and the Sale deed executed by Ms Niazi Khanam (Ex P1) have also been dealt with hereinabove. The documents are more than thirty years old and have been produced from custody of one of the trustees of the Plaintiff which is proper custody. Therefore, from the aforesaid it unambiguously emerges that the Plaintiff has duly proved its title to the suit property in as much as the entire chain of documents from 1871 till date as discussed hereinabove has been placed on record demonstrating that the Plaintiff is the owner of the suit property and the contentions of Defendants in this regard as discussed hereinabove are unfounded.
63. It is contended by the Ld. Counsel for the Defendant that the instant suit property falls within the ambit of Delhi Land Reforms Act, 1954 and therefore a suit in respect of such property is not maintainable in a civil court. It is contended by the Defendants No.1 to 5 that Defendants have been described as a "Gair Marusi/ non occupancy tenant" by the plaintiff which is also reflected in the Kharsa Girdawari for the year 1997- 1998. (Ex P23). It is stated that in terms of Section 77 of the Delhi Land Reforms Act, 1954 an "Asam / non (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 38 of 68) CS No.18/16 occupancy tenant" could be removed only by the Revenue Court and not by a Civil Court. Ld. Counsel for the Defendant has relied on Section 185 of the aforesaid act whereby the jurisdiction of civil court as regards matters relating to "Asami/ non occupancy tenant" is barred. Accordingly it is stated that in view of the fact that it is the case of the Plaintiff that Shri Mangal Singh S/o Uday Singh was a non occupancy tenant of the Plaintiff and since the Plaintiff is a Wakf which is equivalent to Gram Sabha therefore a civil suit is in respect thereof is not maintainable.
64. In this context it is relevant to note that no evidence has been led by the Defendant to show that the suit property is covered by the provisions of the Delhi Land Reforms Act, 1954. On the contrary it is an admitted fact on record that the suit property falls within the limits of Municipal Corporation of Delhi. The same is demonstrated vide Ex. D1-5/W1/P2, which is Death Certificate dated 10.08.1886 of Smt. Shyamo Devi, mother of Defendants No. 1 to 5 and wife of Shri Mangal Singh which was issued by the Sub-Registrar (Birth and Death) Civil Line Zone, Municipal Corporation of Delhi wherein the place of death is indicated as 4975, Roshanara Road, Delhi viz the suit premises. Moreover D1-5/W1, in its evidence has deposed that the suit property is located in the city. Property Tax in respect of the suit property has been charged by Municipal Corporation of Delhi which is evident on perusal of (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 39 of 68) CS No.18/16 Ex.P24, P29 to P31. It has been held in a catena of decisions that the the Delhi Land Reforms Act,1954 applies to agricultural lands only and does not include any other class of property. A piece of land which was once agricultural and afterwards built upon, became an urban immovable property situated within the Municipal limits will no longer be classified as agricultural land and accordingly will not be governed by Delhi Land Reforms Act,1954. Accordingly merely because the Defendants have been described as "Gair Marusi/ non occupancy tenant" by the Plaintiff and merely because the land is identified by way of Kharasa Numbers apart from Plot Numbers, the suit property which is situated within the Municipal Limits of Delhi cannot be stated to have the character of an "Agriculture Land" so as to be governed by the provisions of the Delhi Land Reforms Act, 1954 (Nilima Gupta Vs Yogesh Saroha, 2009 156 DLT 129; Rameshwar Nath Vs Jageshwar Nath & Ors, AIR 1953 P & H 250 referred to).
65. Defendants No. 1 to 5 have also contended that the instant suit is barred under the provisions of Order 2 Rule 2 CPC. Though no issue has been framed thereon, however the same is being decided for complete adjudication of the matter since it has been pleaded in the Written Statement and evidence has also been led thereon and arguments have been advanced by the parties thereon. Defendants have pleaded that the plaintiff had filed an earlier suit bearing CS(OS) no.1860 (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 40 of 68) CS No.18/16 of 1997 titled as Mangal Singh (Trustee of Sadashiv Bholenath ji Maharaj) Vs. Shri Dev Singh & Ors. The said suit was filed on September 1997 before the Hon'ble Delhi High Court seeking permanent injunction to restrain the defendants from dispossessing the plaintiffs from the suit property or to construct or alienate the suit property. During the pendency of the aforesaid suit on 24/05/2000 the plaintiff filed an instant suit inter alia seeking declaration and possession of the suit property. It is accordingly averred by the defendant that the reliefs as prayed in the instant suit were available to the plaintiff even at the time of filing the earlier suit and were not prayed for at that stage, accordingly the instant suit is barred under the provisions of Order 2 Rule 2 CPC. It is contended by the Ld. Counsel for the plaintiff that the former suit was filed, simplicitor seeking injunction restraining the defendant from raising any construction on the suit property and from creating any third party interest in the suit property. It is contended that in the Written Statement filed by the defendant in the former suit, the defendants claimed that they had become the owners of the suit property by adverse possession. In the Written Statement filed in CS (OS) No.1860 of 1997, the defendants also denied creation of the Wakf and permanent dedication of the suit property to the plaintiff and also the Trust created for its management. In view of the stand taken by the defendant, casting a cloud on the plaintiffs title in the (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 41 of 68) CS No.18/16 suit property by claiming themselves to be the owners of the suit property by adverse possession, the plaintiff was constrained to file the instant substantive suit seeking declaration of its title and a consequential relief of possession of the suit property from the defendants who are in illegal possession of the same. In this regard, Ld.counsel for the plaintiffs has placed reliance upon Sohan Singh vs. Fauza Singh & Ors., AIR 1997 Punjab & Haryana 136, and Harbans Singh & Ors. v. Mohinder Singh & Ors., AIR 2003 Punjab & Haryana 294.
66. The former suit was filed in September, 1997 by Sh.
Mangal Singh, s/o Bhagwandas as trustee of Idol Sadashiv Bholanath Ji Maharaj seeking permanent injunction restraining the defendant from raising construction on the suit property and also from creating third party interest in the suit property. It is only when the written statement was filed in the earlier suit that defendants for the first time disputed the title of the Idol Sadashiv Bholanath Ji Maharaj and claimed ownership of the suit property by adverse possession. In such circumstances, the plaintiff herein, Idol Sadashiv Bhola Nath ji Maharaj, filed the instant suit for declaration of its title, possession and injunction against the defendants on 24.05.2000. The earlier suit was filed by Sh. Mangal Singh in his capacity as a trustee of the suit property. It is averred by the plaintiff herein that at the time of filing of the previous suit, it was not contemplating denial of (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 42 of 68) CS No.18/16 its title to the suit property by the defendant which always vested in the Idol Sadashiv Bholanath Ji Maharaj. In absence of any question mark over its title, Idol Sadashiv Bholanath Ji Maharaj did not seek declaration with respect to its title to the suit property at an earlier stage and it is only after the defendants filed the written statement in the former suit that the plaintiff herein filed the substantive suit i.e. the instant suit to seek declaration of its title to the suit property.
67. In such state of affairs, the instant suit is not barred by the provisions of order 2 rule 2 CPC, in as much as the cause of action in the prior suit which was filed by the trustee, was unauthorized construction being raised by the defendant, whereas, in the instant case, the cause of action arose when the defendants disputed the title of the Idol Sadashiv Bholanath Ji Maharaj to the suit property by claiming title to the suit property by adverse possession. Since the plea of adverse possession was not within the contemplation of the Idol Sadashiv Bholanath Ji Maharaj in whom the suit property was vested through the Wakf Deed dated 10.10.1898 (Ex P8A) and a doubt was created over its title in the former suit filed by the Trustee, who was in any event not the owner of the property, therefore the bar of order 2 rule 2 CPC is not applicable to the instant suit filed interalia seeking Declaration of Idol Sadashiv Bholanath Ji Maharaj's title to the suit property. Accordingly the said plea of the Defendants No.1 to 5 is (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 43 of 68) CS No.18/16 without any merit. Issue No.4 is, therefore, decided in favour of the Plaintiff and against the Defendants.
ISSUE NO.1: (1) Whether the suit is barred by limitation? OPD.
ISSUE No.3: (3) Whether the defendant no. 1 to 5 are owners of suit property by adverse possession as alleged in WS? OPD
68. Issue Nos. 1 and 3 are being taken together, since the issue of adverse possession is also governed by the law of limitation.
69. In the written statement filed on behalf of defendant No.1 to 5 and 8 to 10, it has been pleaded that order of the SDM dated 30.03.1967 (Ex P 35) confirms that Mangal Singh, son of Uday Singh, i.e. father of defendant No.1 to 5, claimed title to the suit property by adverse possession. It was observed by the SDM in its order (Ex P 35) that Shri Mangal Singh, the objector therein, was admittedly in possession of the suit property, but, declined to decide the question of title as the proceedings before him were summary in nature. It is averred by the defendant No.1 to 5 that the instant suit has been filed by the plaintiff after a lapse of more than 36 years from the order dated 30.03.1967 passed by the SDM notwithstanding the fact that the said defendants had asserted their rights in the suit property through their father. It is averred that father of defendant No.1 (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 44 of 68) CS No.18/16 to 5 continued to remain in adverse possession of the suit property to the knowledge of the plaintiff without any interruption, as of right, openly and continuously and have thus perfected their title to the suit property by prescription and therefore, the suit is barred by limitation under Article 65 of the Limitation Act. In its replication, the plaintiff has denied that the defendants have perfected their title by adverse possession and that the suit is barred by the virtue of Article 65 of the Limitation Act. It is further averred that the said defendants have failed to show as to how and when their possession became adverse to the plaintiff.
70. In S.M. Karim v. Mst. Bibi Sakina AIR 1964 SC 1254, the Hon'ble Supreme Court held that that the adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse. The Court also held that long possession is not necessarily adverse possession.
71. In Tribhuvanshankar vs Amrutlal, 2014(2)SCC788, the Honble Supreme Court elucidated the Law on adverse possession and observed as under:
"38. Regard being had to the aforesaid concept of adverse possession, it is necessary to understand the basic policy underlying the statutes of limitation. The Acts of Limitation fundamentally are principles relating to "repose" or of "peace". In Halsbury's Laws of England, Fourth Edition, Volume 28, Para 605 it has been stated thus: -
(Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 45 of 68) CS No.18/16 "605. Policy of the Limitation Acts. - The courts have expressed at least three differing reasons supporting the existence of statutes of limitation, namely (1) that long dormant claims have more of cruelty than justice in them, (2) that a defendant might have lost the evidence to disprove a stale claim, and (3) that persons with good causes of actions should pursue them with reasonable diligence."
72. The Hon'ble Supreme Court also referred to the decision in Mst. Sultan Jehan Begum and Ors. v. Gul Mohd. and Ors AIR 1973 MP 72, wherein following principles have been culled out:
"(1) When a person entitled to possession does not bring a suit against the person in adverse possession within the time prescribed by law his right to possession is extinguished. From this it only follows that if the former brings a suit against the latter within the prescribed period of limitation his right will not be extinguished. (2) If a decree for possession is passed in that suit in his favour he will be entitled to possession irrespective of the time spent in the suit and the execution and other proceedings. (3) The very institution of the suit arrests the period of adverse possession of the defendant and when a decree for possession is passed against the defendant the plaintiff's right to be put in possession relates back to the date of the suit.
(4) Section 28 of the Limitation Act merely declares when the right of the person out of possession is extinguished. It is not correct to say that that section confers title on the person who has been in adverse possession for a certain period. There is no law which provides (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 46 of 68) CS No.18/16 for 'conferral of title' as such on a person who has been in adverse possession for whatever length of time.
(5) When it is said that the person in adverse possession 'has perfected his title', it only means this. Since the person who had the right of possession but allowed his right to be extinguished by his inaction, he cannot obtain the possession from the person in adverse possession, and, as its necessary corollary the person who is in adverse possession will be entitled to hold his possession against the other not in possession, on the well settled rule of law that possession of one person cannot be disturbed by any person except one who has a better title."
73. In Tribhuvanshankar vs Amrutlal (supra) the Hon'ble Supreme Court also observed as follows:
"34. The conception of adverse possession fundamentally contemplates a hostile possession by which there is a denial of title of the true owner. By virtue of remaining in possession the possessor takes an adverse stance to the title of the true owner. In fact, he disputes the same. A mere possession or user or permissive possession does not remotely come near the spectrum of adverse possession. Possession to be adverse has to be actual, open, notorious, exclusive and continuous for the requisite frame of time as provided in law so that the possessor perfects his title by adverse possession. It has been held in Secy. Of State for India In Council v. Debendra Lal Khan[11] that the ordinary classical requirement of adverse possession is that it should be nec vi, nec clam, nec precario."
(Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 47 of 68) CS No.18/16
35. In S.M. Karim v. Mst. Bibi Sakina [12] , it has been ruled that adverse possession must be adequate in continuity, in publicity and extent and a plea is required at the least to show when possession becomes adverse so that the starting point of limitation against the party affected can be found.
36. In Karnataka Board of Wakf v. Govt. of India [13] it has been opined that adverse possession is a hostile possession by clearly asserting hostile title in denial of the title of the true owner. It is a well-settled principle that a party claiming adverse possession must prove that his possession is 'nec vi, nec clam, nec precario', that is, peaceful, open and continuous. The possession must be adequate in continuity, in publicity and in extent to show that their possession is adverse to the true owner. It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. Thereafter, the learned Judges observed thus: -"11. ... Plea of adverse possession is not a pure question of law but a blended one of fact and law. Therefore, a person who claims adverse possession should show: (a) on what date he came into possession, (b) what was the nature of his possession, (c) whether the factum of possession was known to the other party, (d) how long his possession has continued, and (e) his possession was open and undisturbed. A person pleading adverse possession has no equities in his favour. Since he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to establish his adverse possession."
It is to be borne in mind that adverse possession, as a right, does not come in aid (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 48 of 68) CS No.18/16 solely on the base that the owner loses his right to reclaim the property because of his willful neglect but also on account of the possessor's constant positive intent to remain in possession. It has been held in P.T. Munichikkanna Reddy and others v. Revamma and others[14]."
74. In State Of Haryana vs Mukesh Kumar & Ors, (2011)10 SCC 404, the Hon'ble Supreme Court has observed that people are often astonished to learn that a trespasser may take the title of a building or land from the true owner in certain conditions and such theft is even authorized by law.
75. In para 1 of the aforesaid judgement the Hon'ble Supreme Court observed that the theory of adverse possession is also perceived by the general public as a dishonest way to obtain title to property. Property right advocates argue that mistakes by landowners or negligence on their part should never transfer their property rights to a wrongdoer, who never paid valuable consideration for such an interest.
76. The Hon'ble Supreme Court also examined the history behind the law on adverse possession and observed as follows:
"Efficacy of adverse possession law in most jurisdictions depends on strong limitation statutes by operation of which right to access the court expires through efflux of time. As against rights of the paper-owner, in the context of adverse possession, there evolves a set of competing rights in favour of the adverse (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 49 of 68) CS No.18/16 possessor who has, for a long period of time, cared for the land, developed it, as against the owner of the property who has ignored the property. Modern statutes of limitation operate, as a rule, not only to cut off one's right to bring an action for the recovery of property that has been in the adverse possession of another for a specified time, but also to vest the possessor with title. The intention of such statutes is not to punish one who neglects to assert rights, but to protect those who have maintained the possession of property for the time specified by the statute under claim of right or colour of title. (See American Jurisprudence, Vol. 3, 2d, p. 81. It is important to keep in mind while studying the American notion of adverse possession, especially in the backdrop of limitation statutes, that the intention to dispossess cannot be given a complete go-by. Simple application of limitation shall not be enough by itself for the success of an adverse possession claim."
"35. A person pleading adverse possession has no equities in his favour since he is trying to defeat the rights of the true owner. It is for him to clearly plead and establish all facts necessary to establish adverse possession. Though we got this law of adverse possession from the British, it is important to note that these days English Courts are taking a very negative view towards the law of adverse possession."
77. The Hon'ble Supreme Court also referred to an earlier decision In Hemaji Waghaji Jat v. Bhikhabhai Khengarbhai Harijan and Others (2009) 16 SCC 517 wherein it was held as under:
"32. Before parting with this case, we deem it appropriate to observe that the law of adverse (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 50 of 68) CS No.18/16 possession which ousts an owner on the basis of inaction within limitation is irrational, illogical and wholly disproportionate. The law as it exists is extremely harsh for the true owner and a windfall for a dishonest person who had illegally taken possession of the property of the true owner. The law ought not to benefit a person who in a clandestine manner takes possession of the property of the owner in contravention of law. This in substance would mean that the law gives seal of approval to the illegal action or activities of a rank trespasser or who had wrongfully taken possession of the property of the true owner.
33. We fail to comprehend why the law should place premium on dishonesty by legitimising possession of a rank trespasser and compelling the owner to lose his possession only because of his inaction in taking back the possession within limitation."
78. Accordingly it emerges from the aforesaid that a mere possession or user or permissive possession does not remotely come near the spectrum of adverse possession. Possession to be adverse has to be actual, open, notorious, exclusive and continuous for the requisite frame of time as provided in law so that the possessor perfects his title by adverse possession. Moreover, It must start with a wrongful disposition of the rightful owner and be actual, visible, exclusive, hostile and continued over the statutory period. Further, a person pleading adverse possession has to clearly plead and establish all facts necessary to establish his adverse possession . Pertinently, a person pleading adverse (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 51 of 68) CS No.18/16 possession has no equities in his favour.
79. Viewed in light of the law as discussed hereinabove, this Court now proceeds to examine whether the Defendants have been able to prove their plea of adverse possession.
80. In order to prove the plea of adverse possession, defendant No.1 to 5 have examined D1-5/W1, Shri Ram Singh son of Late Sh. Mangal Singh, who has deposed in its affidavit of evidence that defendant No.1 to 5 are the owners of the suit property by way of adverse possession. He has deposed that the suit property has accrued in favour of defendant No. 1 to 5 from the erstwhile owners of the land and whose management was levied in the hands of ancestors of defendant No.1 to 5 alongwith its possession. It is noteworthy that Shri Ram Singh has deposed that in the year 1948, Shri Ram Chander who was then the owner of the suit property inducted Shri Mangal Singh Saini, son of Shri Uday Singh Saini,(father of Defendants 1 to 5) as a "non occupancy tenant / cultivator" in the suit property and the present defendant No.1 to 5 derived their right, title and interest in the suit property through Shri Mangal Singh Saini, by way of adverse possession. It is relevant to note that D1-5/W1 deposed that the adverse possession was acquired as defendant No.1 to 5 / their respective legal heirs were in regular, continuous and uninterrupted possession of the suit property for more than 50 years. He has further deposed that Shri Hira Lal was aware (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 52 of 68) CS No.18/16 since 1944 that he was left with no right in the suit property after donation by his mother on 10.10.1898, but no step was taken by him against defendant No.1 to
5. It is also deposed by D1-5/W1 that it is evident from the order of the SDM, dated 30.03.1967 (Ex P-35) that Shri Mangal Singh, son of Uday Singh, claimed title to the suit property adversely to the plaintiff and the instant suit having been filed after more than 30 years from the said order of the SDM, is barred by limitation. It is stated that the said adverse possession of the suit property of the defendants continues to the knowledge of the plaintiff without any interruption and as of right, openly and continuously and accordingly, defendant No.1 to 5 have perfected their title and are thus the owners of the suit property. It is also averred by D1- 5/W1 that defendant No.1 to 5 have remained in possession and enjoyment of the suit property in derogation of the right, title and interest of the plaintiff in the suit property as they are in possession of the suit property openly and continuously and the revenue record placed by the plaintiff also corroborates that defendant No.1 to 5 are in authorized possession of the suit property adverse to the rights of the plaintiff in the same.
81. It is noteworthy that D1-5/W1 during his cross-
examination has also deposed that Sh. Mangal Singh s/o Uday Singh was brought into the suit property by Shri Ram Chander for the purposes of cultivating the land in (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 53 of 68) CS No.18/16 the suit property. He has also deposed that the Samadhis were constructed in the suit property much prior to his ancestors coming into the suit property. He further deposed that Shri Ram Chander told Shri Mangal Singh Saini, that Shri Ram Chander was the owner of the suit property. He further stated that Shri Jalal Gir was the Guru of Gurus, he was the first Guru (Sh. Jalal Gir was appointed as Manager / Mutawali by Smt. Sohan Devi and Sh. Hira Lal vide the Wakf Deed dated 10.10.1898). D1-5/W1 admtted that Shri Jalal Gir was appointed to perform Pooja / Sewa in the already existing Mandir / Shivala. It is pertinent to note that D1- 5/W1 admitted that the suit property vests in Idol Sada Shiv Bhola Nath Ji Maharaj. He also admitted that Jalal Gir in his life time nominated Bhaktwar gir as the Manager, Pujari and Mutawali of Idol Sada Shiv Bhola Nath JI Maharaj.
82. He further admitted that Bhaktwar Gir nominated Ram Chander as the Manager/Pujari of Idol Sadashiv Bhola Nathii Maharaj. He further deposed that nowhere Ram Chander executed any document on the basis of which Shri Mangal Singh s/o Shri Uday Singh was made the owner of the suit property. He stated that House Tax in respect of the suit property was not paid by his mother as the same was refused by the Revenue Authorities as it was a case of agricultural land. He also deposed that Shri Ram Chander told his father Shri Mangal Singh that he (Ram Chander) was the co-owner of the suit property.
(Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 54 of 68) CS No.18/16 It is relevant to note that on a question put to PW1 as to whether the suit property was in alienable, he stated that he could not sell the property but could use it for praying/ pooja also. He categorically stated that the entire suit property belonged to God Idol Sadashiv Bholanath Ji Maharaj. He also deposed that his possession of the suit property was legal possession. It was given by Shri Ram Chander to his father. He denied that their possession of the suit property was illegal. He also deposed that Gurus installed Shiv Ling in the suit property. He also deposed that Idol Sadashiv Bholanath Ji Maharaj was managed by Shri Ram Chander. It is significant to note that D1-5/W1 deposed that his father never tried to assert his right as an owner of the suit property and Mandir. He deposed further that Guru Ram Chander had declared Shri Mangal Singh as the owner of the suit property. D1-5/W1's understanding of ownership was further clarified by stating that Shri Mangal Singh was the true owner of the suit property from the date when he was inducted in the suit property. He also elaborated by stating that Guru Ram Chander gave full ownership of the suit property alongwith peaceful possession to Shri Mangal Singh and that there was no question of adverse possession. D1-5/W1 also stated that the ownership documents of suit property in favour of his father were not transferable after the demise of his father. On the issue of adverse possession, D1-5/W1 stated that Defendants No.1 to 5 were in possession of (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 55 of 68) CS No.18/16 the suit property for last more than 50 years. He denied that their possession was illegal and unlawful. He further denied that there was no admission by the Defendants that they were in adverse possession. He stated that the Defendants were in lawful and legitimate possession and not in unauthorised occupation of the suit property. He further stated that there is no question of derogation and that Plaintiff has no right, title or interest in the suit property. D1-5/W1 also stated that Guru Ram Chander also gave adverse possession of the suit property to their father and after death of their father, came to their mother and after demise of their mother, Defendants No.1 to 5 were in adverse possession of the suit property. He accordingly deposed that adverse possession meant, authorized possession of the suit property.
83. The deposition of D1-5/W1, therefore, reveals that Mangal Singh s/o Uday Singh was inducted into the suit property by Shri Ram Chander. D1-5/W1 has categorically admitted that the suit property vests in Idol Sada Shiv Maharaj ji and that Shri Jalalgir was appointed as the first Guru and after his demise, Shri Baktavar Gir was appointed as a Manager/Pujari of Idol Sadashiv Bhola Nathji Maharaj and thereafter Shri Ram Chander was appointed as the Pujari/Mutawali, Manager of Idol Sadashiv Bhola Nathji Maharaj. Accordingly, there is a clear admission by the Defendants that the suit property vested in Idol Sadashiv Bhola Nathji Maharaj and various (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 56 of 68) CS No.18/16 Pujaries were appointed in order to manage the suit property.
84. D1-5/W1 has admitted that Sh. Mangal Singh s/o Uday Singh was introduced in the suit property by Sh. Ram Chander and that Sh. Mangal Singh was brought into the suit property for the purposes of cultivating the land in the suit property. On the other hand he has also deposed that that Guru Ram Chander had declared Shri Mangal Singh as the owner of the suit property and that Shri Mangal Singh was the true owner of the suit property from the date when he was inducted in the suit property and Defendants were claiming adverse possession from the date when they were introduced in the suit property by Shri Ram Chander.
85. It is thus evident that the Mangal Singh s/o Uday Singh was introduced into the suit property by Sh, Ram Chander who was a manager/ pujari in the suit property for cultivating the land in the suit property. Consequently, the defendants having been introduced into the suit property as a cultivator therein by Sh. Ram Chander cannot claim to be in adverse possession since that date. The possession of the Defendants was palpably permissive. Further, there is no evidence on record to show as to when did the Defendants started claiming adverse possession in the suit property except the order dated 30.3.1967 of the SDM (Ex P35) on an application seeking mutation to record the names of the trustees in the suit property of Idol Sadashiv Bhola Nath (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 57 of 68) CS No.18/16 Ji Maharaj pursuant to the Trust Deed Dated 26.4.63 (Ex P18).The said order notes that Mangal Singh claimed adverse possession of the suit property. However the said plea of Mangal Singh was not considered by the SDM and the names of the Shri Omkar Singh, Shri Mangal Singh S/O Shri Bhagwan Das, Shri Shobha Ram and Shri Ram Narain was recorded as trustees of Idol Sadashiv Bhola Nath Ji Maharaj. However, thereafter no steps were taken by the Defendants. Even otherwise there is nothing on record to suggest that the Defendants claimed their right adversely to the Plaintiff. No incident is on record to show that the Defendants have claimed hostile possession of the suit property adversely to the right of the Plaintiff in the suit property. In fact it is claimed that Sh. Ram Chander gave full ownership of the suit property alongwith peaceful possession to Shri Mangal Singh and thus there was no question of adverse possession. There is no document on record to substantiate the plea that ownership of the suit property was given to Mangal Singh by Sh. Ram Chander. In fact, significantly D1-5/W1 has deposed that his father never tried to assert his right as an owner of the suit property and Mandir. The said assertions to the D1-5/W1 are patently contrary to their plea of adverse possession. In fact the revenue records Ex P17, Ex P22, Ex P23 indicate that Defendants 1-5 are gair marusi cultivators in the suit property. In Ex.P17, certified copy of the Jamabandi for the year 1960-61, Mangal Singh s/o (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 58 of 68) CS No.18/16 Uday Singh is reflected as the non-occupancy tenant/ cultivator (Kast Kar) in the suit property and the owner of the suit property has been described as "Wakf Sada Shiv Bhola Nath Maharaj under the management of Ram Chander Gir, Mutwali Mandir". In Ex.P22, Jamabandi for the year, 1978-79, Smt. Shamo w/o late Mangal Singh s/o Uday Singh has been recorded as the non-occupancy (Gair Maurusi) cultivator while Sada Shiv Bhola Nath Ji, through the Trustee is recorded as the owner of the property. Similarly, in Ex.P23, Copy of Khasra Girdwari for the years 1996-98, Defendants No.1 to 5, after the death of Smt. Shamo Devi, are recorded as (Gair Maursi) non-occupancy cultivators in respect of the suit property. The owner of the suit property has been indicated Wakf, Sada Shiv Bhola Nathji Maharaj. Accordingly the evidence on record reveals that the Defendants were in permissive possession of the suit property as "gair marusi" cultivators in the suit property whereas the owner of the suit property has been Wakf Sada Shiv Bhola Nathji Maharaj.
86. Defendants No.1 to 5 examined Shri Gurmeet Singh, Zonal Inspector from the House-Tax Department as D1- 5/W1-5/W-2, who deposed that the suit property as assessed for property tax since April, 1971. Defendants No. 1 to 5 also examined Shri Mukesh Kumar, AG-I, NDPL as D1-5/W-4. He deposed that an Electricity connection was applied by Shri Mangal Singh and the said Electricity connection was granted 26.08.1959 to Shri Mangal Singh (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 59 of 68) CS No.18/16 from the Office of DESU, vide Ex.D1-5/W-4/Z-I. It was further stated by the said witness that Smt. Shyamo Devi filed an application stating that she will pay the Electricity Bills of the said connection. The application was filed in the year, 1972 and is exhibited as Ex.D1- 5/W-4/Z-3.Pursuant thereto, the connection was recorded in the name of Ms. Shyamo Devi vide Ex.D1-5/W-4/Z.
87. The Defendants No. 1 to 5 have relied upon the aforesaid documents to show that the Electricity connection in respect of area of the suit property in occupation of Defendants No. 1 to 5, stood in the name of Shri Mangal Singh. s/o Uday Singh and thereafter Smt. Shyamo Devi w/o Shri Mangal Singh and thereafter in the names of Defendants No. 1 to 5 who are sons of Shri Mangal Singh which reflects that they have asserted their rights qua the suit property adversely to the Plaintiff.
88. Ld. Counsel for the Plaintiff has contended that Electricity connection was obtained by Shri Tej Singh on the basis of application on dated 10.07.1985, Ex.D1-5/W- 4/Z-4 filed on the basis of rent receipt which was annexed with the application, purportedly issued by one Shri Hari Prakash in respect of the suit property and exhibited as Ex.D1-5/W-4/Z-5. It is contended that the Electricity connection was obtained by Shri Tej Singh, s/o Mangal Singh on the basis of a false rent receipt. It is also contended by Ld. Counsel for the Plaintiff that initially, the Electricity connection was obtained by Shri (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 60 of 68) CS No.18/16 Mangal Singh on the basis of "no objection" given by Shri Hira Lal to an Electricity connection in respect of the suit premises. The said letter has been exhibited as Ex.P1- 5/W-4/Z6.
89. It is relevant to note that D1-5/W-4 also deposed that it is not required that the person who applies for Electricity connection has to the owner of the premises for which the connection is applied for nor is the proof of ownership of the premises is required to obtain an Electricity connection. He further deposed that in the event the owner of the property gives a "no objection"
for the Electricity connection, then the connection can be installed even in the name of employee/ tenant/ cultivator of the premises.
90. The aforesaid accordingly, demonstrates that Mangal Singh obtained Electricity connection only on the basis of a "no objection certificate" given by Shri Hira Lal and subsequently, Shri Tej Singh applied for an electricity connection on the basis of Rent Receipt. It is relevant to note that it has been deposed by D1-5/W-4 that Electricity connection can also be granted on the basis of "no Objection" in the name of an employee/ tenant/ cultivator of the premises. In such circumstances, the sanction of an Electricity Connection in favour of Defendants No. 1 to 5 was entirely permissible, since they admittedly in possession of a portion of the suit property as gair marusi cultivators. Thus on the basis of the fact that the above Electricity connection stood in (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 61 of 68) CS No.18/16 their names, an adverse possession in favour of Defendants No. 1 to 5, cannot be inferred.
91. As regards the plea of adverse possession, it is essential that all the facts that are necessary to establish adverse possession, have to be established by the claimant of adverse possession. The evidence on record demonstrates that the Defendants have been in permissive possession of the suit property as against the requirement of adverse possession wherein the possession is required to be open, continuous, hostile and adverse to the right of the Plaintiff in the suit property. In such circumstances, Defendants no. 1-5 have failed to prove all facts necessary in order to establish their plea of adverse possession.
92. Thus, the plea of adverse possession fails qua Defendants No. 1 to 5.
93. Defendant No.6 in a separate written statement has admitted the right, title and interest of the plaintiff in respect of the suit property. Defendant No.6 is stated to be a Pujari in the suit property and has stated that he is in permissive possession of the suit property. Defendant No.6 has denied that it has colluded with the other defendants as alleged. He has however asserted that he has no independent right, title or interest viz-a-viz the suit property. D6/W1, Shri Ramesh Kumar has deposed that his father was inducted into the suit property by Shri Mangal Singh, Trustee of Idol Sadashiv Bhola Nathji Maharaj as a tenant and that Idol Sadashiv Bhola Nathji (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 62 of 68) CS No.18/16 Maharaj was the owner of the entire suit property. He denied the suggestion that he was not inducted into the suit property by Sh. Mangal Singh or Sh. Ram Chander. He also denied that he was paying any rent to anybody.
94. It is, therefore, evident that Defendant No.6 has not taken the plea of adverse possession against the Plaintiff and in the absence of any evidence on record, he has also not been able to prove his tenancy under the Plaintiff.
95. In the common written statement filed on behalf of Defendant no. 1-5 and 8-10, the only plea raised by Defendant no. 8 to 10 is that they have denied that they are in illegal, unauthorized occupation of the suit property. It is asserted that they are in lawful occupation of the suit property under Defendant no. 1 to 5.
96. Defendant No.8, Shri Mahender Singh has deposed as D8/W1 and has stated that he is a licencee in the suit property. He has further stated that he is lawful occupant in Idol Sadashiv Bhola Nathji Maharaj and no one, besides the plaintiff has any right in respect of the aforesaid property with respect to Defendant No.8. He has deposed that the Plaintiff is the owner of the entire suit property and besides the Plaintiff no one has claimed any right in respect of the suit property from Defendant No. 8. However in the Written Statement it is pleaded that he is in lawful occupation of the suit property under Defendant no. 1 to 5. It is accordingly evident that Defendant No. 8 has also not taken the plea (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 63 of 68) CS No.18/16 of adverse possession and has not been able to prove that he is a licencee under the Plaintiff.
97. Defendant no.9 did not step into the witness box and therefore has not proved the plea of adverse possession and is deemed to have accepted the claim of the Plaintiff.
98. Though Defendant No.10 had been appearing in the matter and had notice of final arguments, however, no one appeared to advance any arguments on its behalf. Accordingly, this Court is proceedings on the basis of the pleadings and the evidence available on record. Defendant No.10 Nawabuddin, who has deposed D10/W1, has stated that he was residing at the suit property for the last about 35 years. He has further deposed that he was inducted in the suit property as a tenant under the Plaintiff and is in lawful occupation of the of suit property under the Idol Sadashiv Bhola Nathji Maharaj. In the Written statement he has pleaded that he in lawful occupation of the suit property under Defendant no. 1 to 5. He also deposed that he was inducted as a tenant by one of the defendants Nanak Singh and thereafter, Mangal Singh, trustee of the Plaintiff accepted him as a tenant orally. He also deposed that he considered himself as a tenant of the alleged trust, even though no rent receipt was issued in his favour. He further deposed that besides the Plaintiff, no one has claimed any right in respect of the aforesaid of the suit property from Defendant No.10. He has also (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 64 of 68) CS No.18/16 deposed that Plaintiff is the owner of the suit property. Accordingly, Defendant No.10 also does not claim adverse possession against the Plaintiff and has failed to establish his claim of tenancy under the Plaintiff.
99. Therefore in view of the aforesaid, issue no. 1 and 3 are decided in favour of the Plaintiff and as against the Defendants.
100. ISSUE NO.2:
"Whether the suit is properly valued for the purpose of Court fees and jurisdiction ? OPP.
101. The Plaintiff has valued its suit for the relief of Declaration with consequential relief of possession for Rs.5 Lacs and has paid Court fees accordingly. On the claim of relief of Mesne Profits of Rs.24,000/-, the Plaintiff has paid the Court fees of Rs.1,052/- and for the relief of Perpetual Injunction, the suit has been valued at Rs.3,500/- and the Court fees has been paid accordingly.
102. Be that as it may, there is nothing on record to doubt the valuation made by the plaintiff. The defendant has not placed any material on Court record to show that the plaintiff has undervalued the suit. In the absence of any material to doubt the valuation of the suit as valued by the plaintiff, the suit is treated as valued properly for the purpose of jurisdiction and Court fee.
103. Accordingly, the Issue No.2 is decided in favour of Plaintiff and against the Defendants.
(Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 65 of 68) CS No.18/16
104. ISSUE NO.5:
"Whether the suit is barred by Section 48 of the Indian Trust Act. "
Section 48 of the Indian Trust Act provides as follows:
Section 48: Co-Trustees cannot act singly -
When there are more trustees than one, all
must join in the execution of the Trust, except
where the instrument of trust otherwise
provide.
105. The suit was instituted by the sole surviving trustee Shri Mangal Singh and subsequently, vide order dated 05.10.2013, the application of the Plaintiff for impleadment of newly appointed Trustees was allowed.
The objection of the Defendants that when there are more trustees than one, all must join in the execution of the Trust, is without any substance as the Defendants have failed to explain as to how the said objection is applicable to the facts and circumstances of the instant case nor have lead any evidence on the said issue.
106. The issue is, therefore, decided in favour of the Plaintiff and against the Defendants.
107. ISSUE NO. 6:
"Whether the Plaintiff is entitled for damages for use and occupation of the suit premises ? OPP.
108. The Plaintiff has prayed for mesne profits amounting to Rs.24,000/- and also for future mesne profits from the date of institution of the suit till the vacant possession was delivered to the Plaintiff. PW1 has deposed that the (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 66 of 68) CS No.18/16 Defendants are liable to pay mesne profits for illegal use and occupation at Rs.1,000/- per month, which is an expected rate at which the premises can be let out an unauthorized occupant. However, no evidence has been adduced in respect of said assertion and to support the plea that the rent of Rs.1,000/- per month is the expected rent of the suit premises. No Lease Deed of the surrounding properties have been placed on record. D1- 5/W1 in cross-examination has denied that the suit property could fetch a rent of Rs.1,000/- per month. Accordingly, the Plaintiff has not is not entitled to any mesne profit as prayed.
109. The issue is, therefore, decided in favour of the Defendants and against the Plaintiff.
110. RELIEF:
In view of above discussion, the Plaintiff is entitled to:
(I)A Decree of Declaration that the suit property, i.e. property bearing Municipal No. 4975-76-77, near Mata Mandir, Gali Imliwali, Roshanara Road, Subzimandi, Delhi admeasuring 1 bigha 18 biswas in Khasra No. 40 and 41, Sadohra Kalan, Delhi (comprising of a bagichi with fruit bearing trees, flower and vegetable plants and some irregular temporary structures, a well, Samadis and a Shivala) is a Wakf Property and is owned by the Plaintiff i.e. Idol Sada Shiv Bhola Nathji Maharaj;
(ii) A Decree of Possession in respect of the suit property is also passed in favour of the Plaintiff and (Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 67 of 68) CS No.18/16 against the defendants and defendants are hereby directed to hand over vacant and peaceful possession of the suit property to the plaintiff within six weeks from today;
(iii) A Decree of Perpetual Injunction is also passed in favour of the Plaintiff, and the Defendants, their Legal Representatives, agents, attorneys, associates etc from disposing, alienating or creating any third party interest in the suit property. The defendants are further restrained from raising any construction over the suit property and from demolishing the Plaintiff Idol, the samadhis and the well existing on the suit property;
However, the Plaintiff is not entitled to a Decree of Mesne profits, as prayed.
The suit filed by the plaintiff is decreed accordingly. No order as to cost. Decree Sheet be prepared. File be consigned to record room after due compliance.
Announced in open court
on 14.09.2016 (DEEPALI SHARMA)
Addl.District Judge-14 (Central):
Tis Hazari Courts, Delhi.
(Idol Sadashiv Bhola Nathji Maharaj Vs Tej Singh etc) (page 68 of 68)