Allahabad High Court
Sohan Lal Sharma vs State Of U.P. And 4 Others on 7 September, 2022
Bench: Surya Prakash Kesarwani, Saurabh Srivastava
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 03 Case :- WRIT - C No. - 12611 of 2022 Petitioner :- Sohan Lal Sharma Respondent :- State Of U.P. And 4 Others Counsel for Petitioner :- Ranjeet Asthana Counsel for Respondent :- C.S.C.,Satyendra Pandey Hon'ble Surya Prakash Kesarwani,J.
Hon'ble Saurabh Srivastava,J.
1. Heard Sri Ranjeet Asthana, learned counsel for the petitioner and Sri Amit Kumar Singh, learned Additional Chief Standing Counsel for the State-respondents.
2. This writ petition has been filed praying for the following relief:
"i) Issue a writ order or direction in the nature of certiorari to quash the order dated 10.04.2022 passed by respondent no.2 which contains a Annexure no.10 to the writ petition.
ii) Issue a writ order or direction in the nature of Mandamus commanding to the respondents no to stop the petitioner for any sale or any kind use pendency of the writ petition.
iii) issue a writ order or direction in the nature of Mandamus commanding to the respondents not to take any action upon the application of the respondent no 5, in the interest of justice;"
3. Learned counsel for the petitioner submits that land of Khevat No.26 measuring 10 acres 14 decimal situated at village Rajpur, was purchased by the ancestor of the petitioner namely Sri Radha Prasad and thus, the petitioner is rightful owner. He further submits that earlier there were 11 plot numbers, which, after consolidation, were converted into one plot number being khasra Plot No.502, Village Rajpur Bangar, Tehsil and District Mathura. He further submits that there is a decree of civil court and the rights of the petitioner in the land in question stand settled and, therefore, the respondents cannot interfere with the rights of the petitioner in the land in question.
4. Learned Additional Chief Standing counsel submits that neither ancestor of the petitioner nor the petitioner is the owner of the land in question. He submits that the land in question was purchased by Sri Thakur Radhamohan Ji Maharaj Virajman Mandir through Manager Radha S/o Makkhan Lal by a registered sale deed dated 28.05.1915. The compromise decree obtained by the father of the petitioner was a collusive decree in which there was no compromise by the Deity which is the actual owner of the property in question. He referred to various papers of the affidavit of compliance/ short counter affidavit dated 07.09.2022 filed today in court on behalf of respondent Nos.2 and 3. He submits that the copy of the aforesaid sale deed dated 28.05.1915 stands admitted to the petitioner inasmuch as he himself has filed it along with supplementary affidavit dated 05.09.2022. He further submits that the name of the Deity stands recorded in the revenue records from decades together and the revenue entries particularly Akar Patra 45 and the orders passed by the Assistant Consolidation Officer are in conformity with the sale deed dated 28.05.1915. He further submits that the petitioner is not the owner of the land in question and, therefore, he has no right to sell it.
Discussion and Findings:-
5. We have carefully considered the submissions of the learned counsels for the parties and perused the records of the present writ petition. On 22.08.2022, this court passed the following order:
"Supplementary affidavit filed today is taken on record.
Heard learned counsel for the petitioner, the learned standing counsel for the State respondents and Shri Satyendra Pandey, learned counsel for respondent no.5.
Petitioner and respondent no.5 are the real brothers.
Grievance of the petitioner is that disputed property being khasra plot no.502, Rajpur Bangar is a private property and it does not belong to the Deity and therefore in terms of the compromise decree dated 26.5.2005 for partition, no interference can be made by any one for sale of his share in the property by the petitioner.
Prima-facie records of this writ petition indicate that the property belongs to the Deity viz. "Thakur Radha Mohn Ji Maharaj Virajman Mandir Baag Agar Bihari, Vrindavan".The petitioner's father was merely a sevayat. Primafacie it appears that petitioner's father and his sons colluded to grab the property belonging to the Deity and for that purpose an Injunction Suit No. 751 of 2003 was filed. After a detailed order dated 16.02.2004 was passed by the Civil Judge (Senior Division), Mathura, they filed a compromise deed between them. There is no whisper in the compromise decree regarding the compromise by the Deity.
Matter is serious and primafacie appears to be a case of grabbing of land belonging to the Deity.
In view of the aforesaid, we direct the District Magistrate, Mathura to cause an inquiry and submit a detailed report regarding all immovable properties of Deity "Thakur Radha Mohn Ji Maharaj Virajman Mandir Baag Agar Bihari, Vrindavan" and submit a detailed report alongwith copies of all relevant revenue records i.e, khatauni and copy of the deed by which the properties, including aforesaid khasra plot no. 502, Rajpur Bangar were endowed. The District Magistrate, Mathura shall also file a true copy/translated copy of the registered sale deed dated 28.5.2019 which has been referred at page 92 of the writ petition. The aforesaid page appears to be part of affidavit of Narayan Prasad Sharma (father of the petitioner) filed by him in Suit No. 657 of 1999. Relevant portion of paragraphs 6, 11 and 15 of the aforesaid affidavit filed as Annexure-8 to the writ petition is re-produced below:-
^^iSjkxzkQ&6- okLro esa ckr ;g gS fd Bkdqj jk/kkeksgu th dh LFkkiuk eq> 'kiFkdrkZ ds ckck LoxhZ; dh ek[ku yky us vlkZ yxHkx 84 o"kZ iwoZ dh Fkh rFkk iz'uxr lEifr dks Bkdqj th ds gd es jftLVMZ cSukek fn0 28-5-1915 }kjk vius iq= ;kfu eq> 'kiFkdrkZ ds firk Jh jk/kk izlkn 'kekZ ds uke [kjhnk FkkA iSjkxzkQ 11- igys izkjEHk esa ;g lEifr ,d efgyk eqlEekr xaxknsoh ds uke ekS:lh dk'rdkj ds :i esa vafdr FkhA izfroknh la0 1 ds }kjk Bkdqj th ds fgrksa ds izfr fd;s x;sa lc iz;klksa ds dkj.k mijksDr Jherh xaxk nsoh us vius ekS:lh dk'rdkjksa ls lEcfU/kr leLr vf/kdkj yxHkx 55 o"kZ iwoZ bLrhQk nsdj lekIr dj fn;sA vkSj rHkh ls eS 'kiFkdrkZ mijksDr lEifRr ij Bkdqj th dh vksj ls ,dek= dCts esa g¡wA iSjkxzkQ& 15- eq> 'kiFkdrkZ dks bl ckr dk iw.kZ vf/kdkj izkIr gS fd eS 'kiFkdrkZ Bkdqj tks dh fdlh Hkh lEifRr dks Bkdqj th ds fgrks ds fy, vLFkkbZ :i ls bl rjg ls vUrfjr dj ldwW ftlls Bkdqj th ds fgrksa dh lqj{kk Hkh gks ldsaA rFkk Bkdqj th dks lEifRr dh méfr gksdj Bkdqj th dh lEifRr muds LokfeRo esa cuh jgsA** The respondent nos. 2 and 3 shall ensure that till the next date fixed, no 3rd party right may be created by any one in respect of the properties in question.
Petitioner is also directed to file a Supplementry Affidavit before the next date fixed enclosing therewith complete details relating to the immovable properties of the deity, copy of endowment deed and sale deed etc. Put up as fresh on 30.8.2022, at 10 A.M."
6. In compliance to the aforequoted order dated 22.08.2022, the respondent Nos.2 and 3 have filed today an affidavit of compliance/ short counter affidavit dated 07.09.2022 in which they have given complete details regarding the property in question. Copies of various documents are khataunies etc. have been filed along with the aforesaid affidavit.
7. Perusal of the registered sale deed dated 28.05.1915 clearly establishes that the property in question i.e. land of Khevat No.26 measuring 10 acres 14 decimal was originally owned by Sri Thakur Pulan Bihari Ji Maharaj Virajmaan Mandir Mohalla Gyan. One Mahant Radha Raman Das was the manager of the aforesaid temple. For the benefit of the aforesaid Deity, he sold the property in question to "Sri Thakur Radhamohan Ji Maharaj Virajmaan Mandir Mohalla Baag, Agar Bihari Vrindavan through Manager Radha S/o Makkhan Lal". Thus, it stands established on record that the property in question is the property owned by the Deity namely Sri Thakur Radhamohan Ji Maharaj Virajmaan Mandir Mohalla Baag, Agar Bihari Vrindavan.
8. Along with the aforesaid short-counter affidavit, the respondent Nos.2 and 3 have filed copies of khasra of 1359 Fasli, khataunies of 1360 Fasli, 1363 Fasli to 1365 Fasli, 1366 Fasli to 1369 Fasli, 1373 Fasli to 1375 Fasli, 1376 Fasli to 1378 Fasli, 1379 Fasli to 1381 Fasli, 1382 Fasli to 1387 Fasli, Akar Patra 45 and copy of khatauni of 1426 Fasli to 1431 Fasli. Perusal of these records shows that there appears the name of father of the petitioner namely Narayan Prasad and uncles Govind Prasad, Kishanchand, Premchand, Radhacharan, all sons of Radha Prasad as Manager. In 1360 Fasli, an order in Case No.790 was passed by the Tehsildar, Mathura dated 31.07.1953 whereby the name of Sri Ganga Devi was expunged from the khatauni and in place, the name of the aforesaid persons as Manager of the Deity was entered. This entry continued till 1381 Fasli. As per khatauni 1382 Fasli to 1387 Fasli, there was an order passed by Assistant Consolidation Officer, Vrindavan in Case No.406+407 dated 27.07.1977 which was followed by another order in Case No.771/14.12.1977 whereby the name of the Deity namely "Sri Thakur Radhamohan Ji Maharaj Virajmaan Mandir Mohalla Baag Agar Bihari Vrindavan" through Narayan Prasad Sharma S/o Radha Prasad Sharma, was ordered to be entered in the revenue records. The revenue records were accordingly corrected in consolidation proceedings. Since the the Fasli Year 1382-1387 Fasli till today, the name of the Deity, namely Sri Thakur Radhamohan Ji Maharaj Virajmaan Mandir Mohalla Baag Agar Bihari Vrindavan is the recorded owner of the property in question as per revenue records. Thus, it stands clearly established that the Deity "Sri Thakur Radhamohan Ji Maharaj Virajmaan Mandir Mohalla Baag Agar Bihari Vrindavan" is the owner of the land of Khasra Plot No.502 measuring 2.6340 hectares as per the registered sale deed dated 28.05.1915 and the revenue records. The petitioner has no right, title or interest in the landed property of Khasra Plot No.502. The owner is the aforesaid Deity, namely "Sri Thakur Radhamohan Ji Maharaj Virajmaan Mandir Mohalla Baag Agar Bihari Vrindavan." The ancestors of the petitioner have been merely Manager of the temple. Owner is the aforesaid Deity. Therefore, merely because for a very little period in Khasra of 1359 Fasli, the name of the petitioner's ancestors for whatever reasons stood mentioned, it shall not confer any right, title or interest upon the petitioner with respect to the land in question. The compromise decree in O.S. No.751 of 2003 as referred in our aforequoted order dated 22.08.2022, cannot confer any right, title or interest upon the petitioner or his ancestors in respect of the land in question inasmuch as the Deity was not the party to the compromise.
9. Neither any document has been filed along with the writ petition nor any averment has been made in the writ petition by the petitioner which may indicate ownership of the petitioner or his ancestors in the immovable property in question, i.e. Khasra Plot No.502. On the contrary, copy of the registered sale-deed dated 28.05.1915 executed by the original owner Sri Thakur Pulan Bihari Ji Maharaj Virajmaan Mandir in favour of Sri Thakur Radhamohan Ji Maharaj Virajmaan Mandir Mohalla Baag, Agar Bihari, Vrindavan, filed by the respondent nos.2 and 3, i.e. District Magistrate, Mathura and the Sub-Divisional Magistrate, Mathura dated 07.09.2022 and own supplementary affidavit of the petitioner dated 05.09.2022 annexing therewith a copy of the aforesaid registered sale-deed dated 28.05.1915, leaves no manner of doubt that the aforesaid Deity, namely Sri Thakur Radhamohan Ji Maharaj Virajmaan Mandir Mohalla Baag Agar Bihari Vrindavan is the owner of the immovable property, i.e. Khasra Plot No.502, measuring 2.6340 hectares. Therefore, the alleged compromise decree in O.S. No.751 of 2003 is not binding upon the Deity, i.e. owner of the property in question inasmuch as the Deity was not party to the suit or the compromise.
10. In Meghmala v. G. Narasimha Reddy, (2010) 8 SCC 383 (paras 28 to 36), Hon'ble Supreme Court has referred to large number of its earlier judgments on the point of fraud and collusion, and its effect and held as under:-
"28. It is settled proposition of law that where an applicant gets an order/office by making misrepresentation or playing fraud upon the competent authority, such order cannot be sustained in the eye of the law. "Fraud avoids all judicial acts, ecclesiastical or temporal." (Vide S.P. Chengalvaraya Naidu v. Jagannath, (1994) 1 SCC 1) In Lazarus Estates Ltd. v. Beasley, (1956) 1 QB 702 : (1956) 2 WLR 502 : (1956) 1 All ER 341 (CA) the Court observed without equivocation that: (QB p. 712) "No judgment of a court, no order of a Minister, can be allowed to stand if it has been obtained by fraud. Fraud unravels everything."
29. In A.P. State Financial Corpn. v. GAR Re-Rolling Mills, (1994) 2 SCC 647 and State of Maharashtra v. Prabhu, (1994) 2 SCC 481 this Court observed that a writ court, while exercising its equitable jurisdiction, should not act as to prevent perpetration of a legal fraud as the courts are obliged to do justice by promotion of good faith. "Equity is always known to defend the law from crafty evasions and new subtleties invented to evade law."
30. In Shrisht Dhawan v. Shaw Bros., (1992) 1 SCC 534 it has been held as under: (SCC p. 553, para 20) "20. Fraud and collusion vitiate even the most solemn proceedings in any civilised system of jurisprudence. It is a concept descriptive of human conduct."
31. In United India Insurance Co. Ltd. v. Rajendra Singh, (2000) 3 SCC 581 this Court observed that "Fraud and justice never dwell together" (fraus et jus nunquam cohabitant) and it is a pristine maxim which has never lost its temper over all these centuries.
32. The ratio laid down by this Court in various cases is that dishonesty should not be permitted to bear the fruit and benefit to the persons who played fraud or made misrepresentation and in such circumstances the Court should not perpetuate the fraud. (See Vizianagaram Social Welfare Residential School Society v. M. Tripura Sundari Devi, (1990) 3 SCC 655, Union of India v. M. Bhaskaran, 1995 Supp (4) SCC 100, Kendriya Vidyalaya Sangathan v. Girdharilal Yadav, (2004) 6 SCC 325, State of Maharashtra v. Ravi Prakash Babulalsing Parmar, (2007) 1 SCC 80, Himadri Chemicals Industries Ltd. v. Coal Tar Refining Co. (2007) 8 SCC 110 and Mohd. Ibrahim v. State of Bihar, (2009) 8 SCC 751.
33. Fraud is an intrinsic, collateral act, and fraud of an egregious nature would vitiate the most solemn proceedings of courts of justice. Fraud is an act of deliberate deception with a design to secure something, which is otherwise not due. The expression "fraud" involves two elements, deceit and injury to the person deceived. It is a cheating intended to get an advantage. [Vide Vimla (Dr.) v. Delhi Admn., AIR 1963 SC 1572, Indian Bank v. Satyam Fibres (India) (P) Ltd., (1996) 5 SCC 550, State of A.P. v. T. Suryachandra Rao, (2005) 6 SCC 149, K.D. Sharma v. SAIL, (2008) 12 SCC 481 and Central Bank of India v. Madhulika Guruprasad Dahir, (2008) 13 SCC 170.
34. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of the others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata. Fraud is proved when it is shown that a false representation has been made (i) knowingly, or (ii) without belief in its truth, or (iii) recklessly, careless whether it be true or false. Suppression of a material document would also amount to a fraud on the court. (Vide S.P. Chengalvaraya Naidu, (1994) 1 SCC 1, Gowrishankar v. Joshi Amba Shankar Family Trust, (1996) 3 SCC 310, Ram Chandra Singh v. Savitri Devi, (2003) 8 SCC 319, Roshan Deen v. Preeti Lal, (2002) 1 SCC 100, Ram Preeti Yadav v. U.P. Board of High School & Intermediate Education, (2003) 8 SCC 311 and Ashok Leyland Ltd. v. State of T.N., (2004) 3 SCC 1.
35. In Kinch v. Walcott, 1929 AC 482 : 1929 All ER Rep 720 (PC) it has been held that:
"... mere constructive fraud is not, at all events after long delay, sufficient but such a judgment will not be set aside upon mere proof that the judgment was obtained by perjury".
Thus, detection/discovery of constructive fraud at a much belated stage may not be sufficient to set aside the judgment procured by perjury.
36. From the above, it is evident that even in judicial proceedings, once a fraud is proved, all advantages gained by playing fraud can be taken away. In such an eventuality the questions of non-executing of the statutory remedies or statutory bars like doctrine of res judicata are not attracted. Suppression of any material fact/document amounts to a fraud on the court. Every court has an inherent power to recall its own order obtained by fraud as the order so obtained is non est."
Status of Manager or Shebait:
Deity- A minor, duty of Shebait/Manager to protect interest of Deity and not to usurp property for own gains:-
11. In the present set of facts, the aforesaid Deity is the owner of the property in question on the basis of the title deed dated 28.05.1915. Ancestors of the petitioner have been manager of the temple/Deity. It is bounden duty of Shebait or Manager to protect the temple property. He cannot usurp such property for his own gains. A Shebait, Manager or Archaka etc. is the person functioning as a manager/trustee of such temple. He is the guardian of the idol and conducts all transactions on its behalf, solely for the benefit of the idol and not otherwise. In the case of Bishwanath And Anr vs Shri Thakur Radhaballabhji & Ors, AIR 1967 SC 1044, Hon'ble Supreme Court held that three legal concepts are well settled : (i) An idol of a Hindu temple is a juridical person; (ii) when there is a Shebait, ordinarily no person other than the Shebait can represent the idol; and (iii) worshippers of an idol are its beneficiaries, though only in a spiritual sense. An idol is in the position of a minor; when the person representing it leaves it in the lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power to protect its interest. The aforesaid settled principles have been reiterated by Hon'ble the Supreme Court in large numbers of judgments including the judgment in the case of Sri Ganapathi Dev Temple Trust vs Balakrishna Bhat (D) Thr. Lrs. (2019) 9 SCC 495 (para 12).
12. In a recent judgment in the State of M.P. v. Pujari Utthan Avam Kalyan Samiti, (2021) 10 SCC 222 (Para 23 to 26), Hon'ble Supreme Court considered the status of a Pujari with respect to management of the property of the Deity and held that Pujari is only a grantee to manage the property of the Deity. He does not have any right in the land and his status is only that of a manager. Rights of a Pujari or Shebait do not stand on the same footing as that of a Mourushi in the ordinary sense. If a Pujari or Manager claims proprietary rights over the property of temple, then it is an act of mismanagement. Paragraphs 23, 24, 25 and 26 of the aforesaid judgment are reproduced below:-
"23. This question has already been considered by the courts in Panchamsingh v. Ramkishandas Guru Ramdas, 1971 SCC OnLine MP 26, which has further been affirmed by Kanchaniya6. The law is clear on the distinction that the Pujari is not a Kashtkar Mourushi i.e. tenant in cultivation or a government lessee or an ordinary tenant of the muafi lands but holds such land on behalf of the Aukaf Department for the purpose of management. The Pujari is only a grantee to manage the property of the deity and such grant can be reassumed if the Pujari fails to do the task assigned to him i.e. to offer prayers and manage the land. He cannot be thus treated as a Bhumiswami. The Kanchaniya v. Shiv Ram, 1992 Supp (2) SCC 250 further clarifies that the Pujari does not have any right in the land and his status is only that of a manager. Rights of pujari do not stand on the same footing as that of Kashtkar Mourushi in the ordinary sense who are entitled to all rights including the right to sell or mortgage.
24. In a judgment reported as Ramchand v. Janki Ballabhji Maharaj, (1969) 2 SCC 313, it was held that if the Pujari claims proprietary rights over the property of the temple, it is an act of mismanagement and he is not fit to remain in possession or to continue as a Pujari.
25. The contrary view expressed by the High Court in Ghanshyamdas v. State of M.P., 1995 Revenue Nirnaya (RN) 235, Sadashiv Giri v. Commr., 1985 RN 317 and Shrikrishna v. State of M.P., 1995 SCC OnLine MP 161 : (2012) 4 MP LJ 466 does not lay down good law in view of binding precedent of the Division Bench of the High Court in Panchamsingh7 as also of this Court in Kanchaniya6. All these judgments presenting a contrasting view had not noticed the said binding precedents dealing with the rights of priest under the Gwalior Act.
26. Taking into consideration the past precedents, and the fact that under the Gwalior Act, Pujari had been given the right to manage the property of the temple, it is clear that that does not elevate him to the status of Kashtkar Mourushi (tenant in cultivation)."
13. For all the reasons aforesaid, we do not find any merit in this writ petition. Consequently, the writ petition is dismissed.
14. After this judgment was dictated in open court, learned counsel or the petitioner states that the petitioner may be permitted to withdraw this writ petition.
15. We are not inclined to accept the request of learned counsel for the petitioner inasmuch as we have heard at length the writ petition on merit and dictated judgment in open court. After the judgment has been dictated, the request of the petitioner to withdraw the writ petition cannot be accepted. Hence, the request is rejected.
16. Learned Chief Standing Counsel shall intimate this order in writing to the respondent Nos.2 and 3 within ten days, who shall take all steps to protect the aforesaid property of the Deity being Khasra Plot No.502.
Order Date :- 07.09.2022 NLY