Patna High Court
Sunderlal Goswami And Anr. vs Jogeshwar Prasad Singh And Ors. on 20 August, 1974
Equivalent citations: AIR1975PAT246, AIR 1975 PATNA 246
JUDGMENT Sushil Kumar Jha, J.
1. The plaintiffs are the appellants against a judgment of reversal. The plaintiffs' suit for a declaration that a sale deed, dated the 14th October, 1958, executed by defendant No. 2 (respondent No. 2 here) in favour of defendant No. 1 (respondent No. 1 here) was void and illegal, and for a further declaration that the same was not binding on the plaintiffs, with a further relief for recovery of possession, having been decreed by the trial Court, the Court of appeal below has reversed that decree and dismissed the suit.
2. The appellants' case, in short, was that cadastral survey plot Nos. 6066, 6067, 6068 and 6069, appertaining to cadastral survey khata No 401 of village Bithauli Khemchand, had been dedicated to Lord Shiva by the Darbhanga Rai long long ago. It was averred that the common ancestor of the plaintiffs and the defendants second party (respondents second party here) was a great devotee of Lord Shiva and so a rent-free grant of the lands aforementioned was given to him for maintenance and worship of Lord Shiva. The case of dedication was thus founded upon a lost grant, and it was further alleged that, after the death of the common ancestor of the parties concerned, the properties devolved upon his heirs, qua-sebaits. and all of them were jointly managing the properties for the benefit of Lord Shiva so that the properties so dedicated came to be called Shivottar properties. A further assertion in the plaint was that, in due course, the ancestors of the plaintiff-appellants and defendant second party-respondents came to be recorded in the survey papers with regard to the dedicated properties, and. finally, that, under the impugned sale deed, defendant No. 2 had illegally sold away cadastral survey plot Nos. 6066 and 6069, measuring 1.83 acres. The challenge to the validity of the sale deed was thus grounded upon the fact of inalienability in law of the properties so dedicated completely to Lord Shiva.
3. The defence of defendant No. 1-respondent No. 1 was a denial of any such dedication, and it was asserted by him that the usufructs of the lands in question were never utilised for the Seva-Puja of any deitv; and that the lands always remained the personal properties of the ancestors of the plaintiffs and the defendants second party, and, in due course, these parties came in separate exclusive possession of different portions of the above mentioned lands in their personal capacity, after due partition by metes and bounds.
4. The crucial question for determination in the suit, therefore, was as to whether there was any dedication to Lord Shiva, or were the properties personal properties of the common ancestor of the appellants and the respondents second party. There was also an alternative claim out forward by the respondent to the effect that, at best, the properties could be said to have been only partially dedicated, in so far as it might have been expected that, after the fulfilment of their personal necessities and reauirements, expenses over the maintenance of Lord Shiva might also be made. In such an event, it was contended, all that could follow in law was that the properties would stand charged with the maintenance of the aforesaid deity, without detracting from their character of partibility or alienability. The plaintiffs' suit was decreed by the trial Court on a finding that there had been a dedication of the properties in suit to Lord Shiva. The defence case, however found favour with the lower appellate Court, which did not agree with the finding recorded by the trial Court and held, in its turn, that there was no complete dedication, but only a partial or qualified dedication and that, in such a case, the properties descended and were alienable and partible in the ordinary way.
5. Mr. K. K. Sinha, learned counsel for the appellants, contended that the finding of the lower appellate Court with regard to the Partial or qualified nature of the dedication was not binding on this Court, as the proper inference from the term 'Shivottar' in the relevant entries in the cadastral survey papers had not been deduced by the Court of appeal below, and, in support of this contention, learned counsel placed reliance on a decision of the Supreme Court in Ramkishorelal v. Kamalnarayan. (AIR 1963 SC 890) and a Bench decision of this Court in Somar Puri v. Shyam Narain Gir, (AIR 1954 Pat 586).
6. Before referring to the cases relied upon by the learned counsel, I may at once indicate two insurmountable difficulties in the way of the appellants in succeeding in this appeal. Firstly, inferences drawn from statements in khatians are inferences of fact with which the High Court cannot interfere in a second appeal. And, however erroneous the inference may be, unless it is vitiated by some error of law, the finality and binding nature of the findings of fact recorded by the final Court of fact remains even though based on an inference drawn from documents, which are not instruments of title or otherwise the direct foundations of rights; and such findings cannot be interfered with. Decisions on this point are legion; but, to mention only a few, reference may be made to the cases of Anup Mahto v. Mita Dusadh, (AIR 1934 PC 5); Secretary of State for India in Council v. Rameshwaram Devasthanam, (16 Pat LT 7 = (AIR 1934 PC 112)) and Nedunuri Kameswaramma v. Sampati Subba Rao, (AIR 1963 SC 884). In the last mentioned case, their Lordships of the Supreme Court deprecated the painstaking examination of the documents filed by the parties by a learned single Judge of the High Court in reversing the findings of the final Court of fact, and the judgment of the learned single Judge was, accordingly, reversed by the Supreme Court on this main ground.
7. But, that technicality apart, coming to the merits of the case, as already stated, it is a case of dedication based on lost grant. There is no document of title to be construed: no terms of the grant to be interpreted: nor any inference to be drawn from any Sanad. But as stated by Dr. Bijan Kumar Mukherjea in his Hindu Law of Religious and Charitable Trust, at page 172 (1952 Edition), the existence of any document is not necessary to prove a Debutter, "but the absence of a document throws a heavy onus upon the party who sets up dedication to prove that a property has been inalienably conferred upon an idol". In the absence of any grant, then, can it be justifiably said that the mere use of the term 'Shivottar' at some places in the survey papers would change the character of a secular property into that of a property dedicated absolutely to a deity? The fact that a Property ordinarily described as 'Shivottar' is a piece of evidence in favour of dedication no doubt, but it has been repeatedly held that the mere use of such a term is not of a conclusive nature for a determination of the question whether a property has lost its secular character by complete dedication to God. To refer to a small passage from Dr. Mukherjea's book aforesaid, at p. 173. "The fact that the property is called Debutter is doubtless evidence in the plaintiffs' favour but it does not relieve them of the whole burden of proving that the land was dedicated and is inalienable"; and this statement of the law has been Quoted from a decision of the Calcutta High Court in Binod Behari v. Manmatha, 21 Cal LJ 42 = (AIR 1915 Cal 789). Reference in this connection and for the same proposition may also be made to a judgment of Mookerjee, J. in Ram Kanai Ghosh v. Raja Sri Sri Hari Narayan Singh Deo Bahadur, ((1905) 2 Cal LJ 546 at p. 552) where the great Judge has laid down that mere description of a property as debutter is not conclusive, because, whether the property be absolutely dedicated to a deity or be secular subiect to a religious charge, it would in popular language be fittingly described as debutter. It is too late in the day now to contest the proposition that where there is no document, or where in a document there is nothing to show that there was a dedication, except the use of the word 'debutter' or 'Vishnu-prit' or 'Sheoprit' etc. and the usufructs were apparently in the personal enjoyment of the grantee and the grantor might have contemplated that the profits of the property, after satisfying the personal wants of the grantee, would be devoted to the service of the God whom the grantee attended, such an expectation or anticipation may explain the use of the words 'debuttar' 'Sheoprit' etc., but does not suffice to constitute a valid dedication to the God (of Shama Charan Nundy v. Abhiram Goswami, (1906) 3 Cal LJ 306)). A Bench of this Court reviewing the whole mass of case law, reiterated the same principle in Khub Narain Missir v. Ramchandra Narain Dass. (AIR 1951 Pat 340), and it is worthwhile to mention here that the aforesaid decision of this Court in Khub Narain's case AIR 1951 Pat 340 was upheld by the Supreme Court in Rambehari Thakur v, Ramchandra Narain Das, (Civil Appeals Nos. 4 and 5 of 1951. decided on the 19-11-1952 (SC). In that judgment, their Lordships of the Supreme Court held as follows :--
"We find ourselves in agreement with the Courts below that the mere use of the word 'Vishnuprif or 'Sriprit' in the documents does not at all indicate that the gifts were made to the institution as distinct from the Mahanth personally".
Thus, apart from the fact that the Court of appeal below, on an appraisal of facts, did not find sufficient evidence to record a finding to the effect that there was a complete dedication to the deity, the inference drawn from the entries in the survey papers, even if susceptible to attack, cannot be said to be in any way vitiated by any error of law.
8. Adverting now to the two decisions relied upon by learned counsel for the appellants, as a matter of fact, the case of Somar Puri, AIR 1954 Pat 586 (supra), instead of supporting the contention of the learned counsel, in my view. is a decision against him on the question of law, for, the decision of this Court in that first appeal was based upon an appraisal of the grant and other pieces of evidence, both documentary and oral, which had induced the Bench of this Court to record a finding agreeing with the trial Court that there was evidence of complete dedication; and, even while other pieces of evidence aliunde were being considered in Somar Puri's case, Das, J. (as he then was), referring with approval to the decision of this Court in Khub Narain's case (AIR 1951 Pat 340). held, at page 590. that the words 'Vishnu-prit' and 'Sheoprit' etymologically meant 'love of Vishnu' or 'love of Shiva' and they did not necessarily lead to the inference that the donor intended that the properties would be gifts not to the Mahanth but that the properties would be used by the public and would be treated as a public trust. It was further held that "the construction of a document cannot depend on one isolated word taken from its context". Narayan, J. who was a party to the Bench decision in Somar Puri's case, had also decided the earlier case of Khub Narain Missir, and, while recording a separate corroborative judgment, the learned Judge held that it was on the special facts of the case of Somar Puri and on the basis of the evidence adduced in the case, apart from the use of the words 'debutter' 'Chivottar', that it was being held that there was a complete dedication. The decision of the Supreme Court in Ram Kishorelal's case (AIR 1933 SC 890) does not help the appellants either, for, it merely lays down the rules of construction of deeds. In the present case, as I have already stated, there is no deed to be construed.
9. The lower appellate Court, having, on an appraisal of the entire evidence, albeit entries in the survey papers (Ext. 1) and two petitions purported to have been filed by the plaintiffs before the survey authorities (Exts. C and C/I). held that the case of complete dedication to Lord Shiva had not been made out. I do not see any justification for interfering with such a finding both on the around that the inference is not vitiated by any error of law and is, therefore, beyond the competence of this Court to interfere under Section 100 of the Code of Civil Procedure, and also for the reason that even on merits I do not feel persuaded to differ from the view taken by the final Court of fact; nor can the conclusion of the lower appellate Court, as a proposition of law be said to be in any way erroneous, for, to quote Mulla from his Hindu Law (Thirteenth Edition). Section 408 at page 440. "If the dedication is Partial, a trust in favour of the charity is not created but a charge in favour of the charity is attached to. and follows, the property which retains its original private and secular character". The secular character and that of alienability, therefore, still attach to the properties in suit, and the lower appellate Court has rightly dismissed the plaintiffs' suit.
10. In the result, therefore, this appeal must fail and is hereby dismissed with costs.