Posted On by &filed under Gauhati High Court, High Court.


Gauhati High Court
R.K. Madhuryyajit And Anr. vs Takhellambam Abung Singh And Anr. on 11 February, 2000
Author: D Chowdhury
Bench: D Chowdhury


JUDGMENT

D.N. Chowdhury, J.

1. This is a plaintiffs’ appeal challenging the judgment and decree of the learned Addl. District Judge dismissing the suit of the plaintiffs. The relevant facts necessary for adjudication of this appeal, are stated briefly hereinbelow:

2. The suit was instituted by the plaintiff No. 1, Shri RK Madhuryyajit Singh, as a Shebait on his behalf and also on behalf of Shri Mahaprabhu, a Hindu Vaishnava deity installed at Janmesthan, Moirangkhom, Imphal (Plaintiff No. 2) for declaration of right, title and interest of the plaintiff No. 2 over the suit land and the plaintiff No. 1 as its Shebait and that the plaintiffs have absolute right of possession and enjoyment over the suit land without any hindrance from the defendants and their privies, agents; a decree for perpetual injunction and also a decree for recovery of damages and compensation from the defendants for the interference and disturbance caused by them. As per the pleadings of the parties, they and their predecessors-in-interest are all Manipuri Hindus governed by the Dayabhaga School of Hindu law except the plaintiff No.2 which is a Hindu Vaishnava deity/idol. The suit land is an agricultural land under para No.30/151(Old)/254 (New)/ Thoubal comprising C.S. Dags No. 1192. 1194. 165 and 167 situated in village No.30 Kshetri Leikai within Thoubal Sub-Division and belongs to and recorded in the name of Shri Mahaprabhu. a Hindu Vaishnava deity, installed and worshiped by late Premamayee alias Ngangbi Maharani at Janmasthan, Imphal which is the plaintiff No.2 and represented by its shebait, the plaintiff No. 1. Late Maharani Premamayee alias Ngangbi Maharani, the queen-consort of late Surchandra Maharaja of Manipur was the founder and a shebait of the said Shree Mahaprabhu which was Installed and worshipped in a temple constructed on the homestead land under patta No. 40/ 145(Old)/ 154(New).IW situated at Janmasthan which the Maharani dedicated to the deity. The queen consort of late Surchandra Maharaja also dedicated the suit land to the deity for its seva-puja and was managing and enjoying the suit land as a Shebait till her death. Ngangbi Maharani died on the 5th day of the Wakening, 1848 Sakabda without leaving any issue. The said date corresponds to the 8th of January, 1927. Her adopted son. legates and natural heir, R.K. Birehandrajlt alias Birchandra Singh, the son of her younger sister Kunjarnala, inherited all her properties including the Shebaitship of Shree Mahaprabhu, the deity. Said natural heir of the late Ngangbi Maharani continued to worship and offer sevapuja to the deity at its temple at Janmasthan, Moirangkhom, Imphal and managed and enjoyed the suit land as such Shebait till his death. On the death of RK Birehandrajit intestate in 1934. the plaintiff No. 1 as the sole heir of late RK Birehandrajit alias Birchandra Singh, inherited all the properties including the Shabaitship of the said deity till institution of the suit. The plaintiff No. 1 as such Shebait was enjoying and managing the suit land by growing paddy crops from year to year by engaging local agricultural workers.

The plaintiff No. 1 got his name mutated as early as in 1947 in place of the name of Maharani Premamayee alias Ngangbi Maharani in the records of right in respect of all the lands other than the suit land left by the Ngangbi Maharani including the homestead land under patta No.40/ 145(Old)/ 154(new)/IW wherein the said deity’s temple and Mandap were/are standing and the deity was/is usually installed and workshipped. However, through inadvertance, the mutation of the suit land was not effected before 1982. The name of the plaintiff No. 1 was recorded as the Shebait of the deity in respect of the suit land only on 19.5.1982?. But the Defendants without any semblance of title and right to the suit lands as also to the Shebaitship of the said deity, managed the suit land in May and June, 1982 behind the back of the plaintiff and also managed to substitute same of their names as the shebait of the deity as also got some of their names receded as tenants in the land records in a collusive and fraudulent manner. The plaintiff thereafter diligently took steps to rectify the illegal entries in the records of right and instituted proceedings in the higher revenue Court/Tribunal which were/are still pending till institution of the suit, as was averred in the plaint. The plaintiff further pleaded that the defendants since May and June, 1982 have been claiming hostile title to the plaintiff in respect of the suit land by purporting to recently set-up and to have been worshiping a so-called deity of Shree Mahaprabhu in the compound of the defendant No.1 thereby clouding the title of the plaintiff over the suit land for which the suit was instituted for a declaration that the suit land belonged to the plaintiff No.2 and that the plaintiff No. 1 was the shebait of plaintiff No.2 having the sole right of managing and enjoying the suit land as such shebait without any interference from the defendants. It was also pleaded that the defendants and their man since July. 1983 were trying to dispossess the plaintiff from the suit land and to turn-out the men of plaintiff No. 1 employed by him in the suit land for day-to-day cultivation work with a view to take forcible possession over the suit land at any cost for which, the defendants were/are liable to be restrained from indulging in such wrongful and illegal acts temporarily and perpetually and from Interfering with the peaceful possession of the suit land and management/enjoyment of the said suit land.

3. The suit was contested by the defendants who filed a joint written statement. The defendants did not dispute that the suit land was an agricultural and recorded in the name of a Hindu Vaishnava deity, but they denied that the suit land belonged to the said deity, the plaintiff No.2, and also denied that the said deity of Shree Mahaprabhu was installed and worshipped by late Maharani premamayee alias Ngangbi Maharani of Janmasthan. They further denied that the plaintiff No. 1 was/is the shebait of the said deity. The defendants further denied that the late Maharani Premamayee had any alias and that she was the queen-consort of late Surchendra Maharaja of Manipur; they also denied that late Maharani Premamayee was the founder and the shebait of the said deity of Shree Mahaprabhu at Janmasthan during her lifetime. It was denied that the said deity of Shree Mahaprabhu was installed and worshipped in a temple constructed on the homestead land under Patta No.40/145/l54(new) IWT situated at Janmasthan, Moirengkhem which was dedicated to the deity by the late Ngangbi Maharani. The defendants denied that the late Maharani Premamayee was enjoying and managing the suit land as the shebait of the said deity till her death. They denied that the late Ngangbi Maharani died issueless in 1926 and that she adopted RK Birachandrajit alias Birachandra Singh, son of her own younger sister Kunjabala, or that said Birchandra Singh inherited all her properties including the shebaitshtp of the said deity. Further, it was denied that said Birachandrajit alias Birachandra Singh continued to worship and offer seva puja to the said deity of Shree Mahaprabhu and was managing and enjoying the suit land as such shebait of the deity till his death. The defendants denied that after the death of Birachandra Singh alias RK Birachandrajit in 1934. as his son and the sole heir, plaintiff No. 1 inherited all his properties including the shebaitship of the said deity or that the plaintiff No. 1 also has been continuing to worship and offer seva puja to the deity in the said temple at Janmasthan and has been managing and enjoying the suit land by growing paddy crops thereon on engaging local agricultural workers from year to year through his Loupanaba. The defendants stated in their written statement that they had no knowledge about mutation of the name of the plaintiff in the records of right with respect to the land belonging to the late Maharani Premamayee alias Ngangbi Maharani other than that in respect of the suit land; but they came to know about his name being mutated in respect of the suit land on 19.5.1982 behind the back of the defendants in collusion with the revenue staff. That against such inclusion of the name of the plaintiff in the records of right behind their back, the defendant No. 1 filed a petition to the S.D.C. for cancelling the same and the SDG passed an order for deciding their respective claim of ownership of the land in a competent civil Court and cancelled his previous order allowing recording of the name of the plaintiff No. 1 in the record of rights as a shebait. But against this order of the SDC also, the defendant No. 1 filed a revision petition before the Deputy Commissioner(C) and the Deputy Commissioner in his order dated 25.5.1983 passed in the oforesaid revenue revision case No. 38/82, set aside the recording of the name of the plaintiff No. 1 as the shebait. It was, however, stated by the defendants that they got their names mutated as co-shebaits of the suit land in the record of rights on the basis of their right, title. possession and mutual arrangement of shebeitship and that during the survey, operation also, the factum of possession by the defendant over the suit land was recorded by including the name of the defendant No. 1 in the Khatian. While denying the allegations levelled against them in the plaint, the defendant in turn pleaded that the deity of Shree Mahaprabhu in whose name the suit land stood, was installed and worshipped by one Shri Tekhellambem Manik Singh, the deceased grand father of the defendant No. 1, viz., Shri Tekhellambam Abung Singh, and the said land was reclaimed by said Menik Singh for the benefit of the said deity of Shree Mahaprabhu installed at the Ingkhol under patta No. 30/176/70 Th. T. belonging to the family of Tajhellambam of Thoubal Kshetri Leikei. Further that when maniput was a princely State, Maharani Dhanamanjury who was popularly known as Nganghi Maharani, the queen consort of the late Shri Churachand Maharaja, gave offering to the said deity during one of her royal visits and on that occasion late Takhelambam Manik Singh requested the sai Maharani Ngangbi to make arrangement for recording the said paddy fields (lands) in the nameof the said deity; but subsequently, it was discovered that the name of the late Ngangbi Maharani was recorded as the shebait of the said deity in respect of the said paddy fields, the present suit lands, without the knowledge and consent of the real shebait, Manik Singh. However, no objection could be raised to such acts of the Maharani and her name continued to appear in the records of right though she was never the shebait. That the present defendent No. 1 inherited the shebaitship and the land indispute through his late father, Sanajao Singh, son of Takhellambam Manik Singh and that it is because of this that his name has been recorded in the khatian of the suit land and as the tenant/possessor of the whole suit land. Further, the defendants stated that there was no other queen of Manipur known as Ngangbi Maharani other than Maharani Dhanamanjury Devu and that during 1926 when the patta of the suit land was granted, she was very much in power while late premameyee Devu was out of power as her husband’s dynasty, i.e., Kata has been dethroned. In order to facilitate regular cultivation and proper management of the said deity, the defendant No. 1 sub-let some portion of the suit land on condition of payment of Loushal to him. It further stated that about three years back, the plaintiff No. 1 came to house of defendant No. 1 demanding payment of Louchal claiming himself to be the heir of the last owner of the suit land, but the same was refused. The defendants further stated that they has been all along possessing the suit land without any interruption from any quarter over the suit land for last many years and also they observed/made panchami Outaba in their respective portions of land. The defendants denied that the plaintiff No. 1 has/had any Loupanaba or any cultivator and that since the plaintiff No. I was not in possession of the suit land, the suit was hit by Section 34 of the Specific Relief Act. The defendants reiterated that Maharani Premamayee though was a Ngangbam Ningol, had no alias name and that nor was she known as Ngangbi Maharani, as alleged by the plaintiffs. Further that it was Maharani Dhanamanjuri, the queen-consort of late Churachand Maharaja of Manipur, who was popularly known as Ngangbi Maharani and who had the locus standi to file the suit and not the plaintiff or the plaintiffs.

4. The plaintiffs further made additional pleading by way of replication in answer to the written statement filed by the defendants. The contention of the defendants in the written statement was that the prefix “Shree” and the suffix “Jeewoo” attributed to the deity was the same and given/used only by way of veneration. The plaintiffs also denied all the allegations made in the written statement further stated that the defendants could not set-up a hostile title and at the same time claim tenancy to the suit land. Besides, it was stated that the defendants had no right, title over the suit land.

5. The defendants in their supplementary written statement, denied that the defendant No. 1 was popularly known as Shri Takhellambam Abung Singh and not the real name and that he was the son of late Loukrakpam Ibohal Singh. They further denied that the late Ngangbi Maharani died on the 5th day of Wakching, 1948 Shakabda corresponding to the 8th of January, 1927.

6. The parties to the suit filed several documents in support of their respective cases. Upon hearing counsel for the parties and on going through the respective pleadings of the parties, the learned trail Court formulated the following issues:

1. Who installed the deity Shree Mahaprabhu, the pattadar of the suit land?

2. Who dedicated the suit land to the said deity?

3. Whether the plaintiff No.2 is the owner of the suit land?

4. Whether the plaintiff No. 1 or the defendant No. 1 is the shebait of the deity pattadar?

5. Who was in possession of the suit land at the time of institution of the suit?

6. Whether the suit is hit by the provision of Section 34, specific Relief Act?

7. Whether the defendants have threatened the right to possess the suit land and attempted to dispossess the plaintiff No. 1 from the suit land?

8. Reliefs? Additional issue:

Whether the plaintiffs or any of them have or has got locus standi to file the present suit?

7. During trial, the plaintiffs examined six witnesses and the defendants examined seven witnesses and the parties also produced and proved a number of documents in support of their respective cases.

8. The learned trial Court, first dealt with the issue No. 3 in order adjudicate as to whether the plaintiff No. 2 is/was the owner of the suit land. The learned trial Court while considering the said issue, referred to the pleadings of the parties as also the Jamabahdi patta, exhibited as exhibit A-3 and held that the plaintiffs did not produce any other documents except exhibit A-3 in support of the issue that Shree Mahaprabhu Devata’s deity was installed by Maharani Premamayee Devi. Referring to exhibit A-3, the learned trail Court observed that the plaintiff No. 1’s name was recorded as the Shebait of the Shree Mahaprabhu’ deity, the deity pattadar of the suit land which was the plaintiff No.2 in the suit. In the absence of any other document/evidence that the suit land was ever once recorded in the name of late Maharani premamayee Devi, the exhibit A-3 by itself could/cannot be a conclusive proof that Premamayee Maharani was the founder Shebait of the pattadar deity of the land under patta No.40/145/(Old)154(new), Janmasthan. The Court also held that there was no other document to show that the land-in-question was dedicated to the deity pattadar Lal Mahaprabhu Devata by Maharani Premamayee. According to the learned trial Court, exhibit A-3 did not prove that the patta land standing in the name of Lai Mahaprabhu Devata with the plaintiff No. 1 as its Shabait was once installed by Maharani Pramayayee. The learned trail Court considered the evidence adduced on behalf of the plaintiffs and on consideration of the oral evidence, the trial court came to the conclusion that no other witness except the plaintiff No. 1 asserted that the pattadar deity of Lai Mahaprabhu Devata was installed by Maharani Premamayee in the said patta land. The Court also referred to exhibit A-23, the affidavit sworn by M.K. Binodini Devi, said to be one of the daughters of late Maharani Dhanamanjury, on 24.1.1985 wherein the deponent stated that the deity of Sri Mahaprabhu was worshippped by plaintiff No. 1 by installing it in a Mandir near his residence at Janmasthan. According to the trial Court, exhibit A-23 did not support the plaintiffs’ case that the Shri Mahaprabhu’s deity was installed by Maharani Premamayee at Ingkhol, Janmasthan. The trial Court did not accept the testimony of the plaintiff No. 1 as PW 1 that the deity was worshipped by the plaintiff No. 1 as the shebait and that the said deity was installed and worshipped in a temple and Mandap inside the compound of the PW1 and that plaintiff No.2 was first founded by Premamayee Maharani at the present Ingkhol. The learned trial Court in the absence of any documentary or any other reliable evidence, found it difficult to accept the plea of the plaintiff relating to installation of the deity at Janmasthan. The trial Court held that the documents produced by the plaintiffs did not show any homestead land recorded in the name of the plaintiff No.2 and that the said land was dedicated to the deity pattadar by the late Maharani Premamayee who was also the founder shebait of the plaintiff No.2. The learned trial Court on evaluation of the evidence on record including the exhibit A-1, the Riotari patta of the suit land in the name of Ngangbi Maharani, also held that the evidence-on-record did not lead to the inference that the Ngangbi Maharani and Maharani Premamayee Devi were/was one and the same person. The Court further held that a land may be dedicated to the/a deity, yet that would not mean that the donor is/was always a shebait of the deity. In fact there was no evidence to link the plaintiff No. 1 to the deity pattadar of the suit land under the riotari patta, exhibit A-1. The learned trial Court further observed that if a land belonging to one was to be dedicated to a deity, in such an event, the land-in-question must have been recorded first in the name of the donor even before such dedication is made. The Court found that there was no evidence on record as to how Maharani Premamayee first acquired her title over the suit land. Referring to the riotari patta, the Court held that the riotari patta was issued to the deity pattadar originally and, therefore, it appeared that certain lands which were previously not settled with or recorded in the name of any person, were initially recorded in the name of the deity pattadar of the Riotari patta. exhibit A-1. The trial Court further held that during the relevant time of 1926-27, Dhanamanjury was the Maharani and the queen-consort of the then reigning Maharaja Churachand, by referring to the History of Manipur by Jyotirmoy Rai. Further, in the absence of any adoption deed or any other reliable evidence that the suit land was included in the property bequeathed to RK Birachandrajit alias Birchandra Singh, the Court was not inclined to accept the plea of the plaintiffs. The learned Court considered the revenue receipts, but did not find any justifiable ground to accept the pleas of the plaintiffs on the basis of those documents alone. The Court accordingly, decided the aforesaid issue No. 3 against the plaintiffs.

9. The learned trail Court also decided the issues Nos. 1,2,4 and 5 against the plaintiffs on consideration of the facts, circumstances and evidence adduced by the parties. Hence the appeal.

10. Mr. T. Nandkumar, learned Advocate General for the State of Manipur, submitted and contended that the Court below fell into serious error in placing the burden of proof on the plaintiffs to show by positive evidence that Maharani Premamayee installed the deity, Shree Mahaprabhu, pattadar of the suit land and that she dedicated the suit land to the said deity and the plaintiff No. 1 was a shebait of the deity pattadar. According to the learned Advocate General, when the defendants pleaded a specific case, it was the defendants who ought to prove the same and on their failure to prove their case affirmatively, the suit ought to have been decreed in favour of the plaintiffs.

The learned Senior counsel submitted that when both the parties have led their respective evidence on the question of installation of the deity, the dedication f the suit land to the deity and the ownership of the suit land, the question of burden of proof was in fact a academic one. The learned senior counsel submitted that where the parties have joined issues and advanced their respective evidences it was incumbent upon the Court below to weight the conflicting evidence and to decide the issue instead of leaving the matter on an abstract question of burden of proof. The learned counsel in support of his contentions, referred to the decisions of the Supreme Court in Paras Nath Thakur v. Smti Mohani Dasi (deceased) and Ors., reported in AIR 1959 SC 1204; Narayan Bhagawantrao Gosavi Balajiwale v. Gopal Vinayak Gosavi and Ors., reported in AIR 1960 SC 100. The learned senior counsel and Advocate General, Mr. Nandkumar, referring to Section 35 of the Evidence Act, 1872, submitted that entries in the revenue records ought to have been accepted by the authorities at its face value without embarking upon any further enquiry as to its correctness. The learned senior counsel submitted that the genuineness and correctness of entries in the revenue records were not open to challenge in the absence of any fraud or illegality to rob a document of its legal effects. The learned Advocate General referring to the provisions of the Assam Land and Revenue Regulation as well as to those of the Manipur Land Revenue & Land Reforms Rules, 1961, sought to bring home the point about the value and authority of the entries in the revenue records. Mr. Nandkumar, the learned senior counsel, also argued that if a thing or a set of things was/were shown to exist, it was the Court which ought to have held an inference of continuity within a reasonable proximate time, both forward and backward, in aid of Section 114(d) of the Evidence Act, 1872. The learned senior counsel, submitted that the rule that presumption of continuity may operate retrospectively, is an accepted principle of law in India. The learned senior counsel, in support of his contention, referred to the decision of the Supreme Court in the case of Ambika Parsad Thakur and Ors. etc. v. Ram Ekbal Rai (dead) by his legal representatives and Ors. etc., reported in AIR 1966 SC 605.

11. Mr. Ch Joychandra, the learned counsel appearing on behalf of the respondents on the other hand submitted that it was for the plaintiffs to prove and establish the case pleaded by them as it was the plaintiffs who claimed the suit property on the basis of their right, title and interest as pleaded in its pleadings. Pleadings are not evidence and that in the absence of evidence in favour of their pleadings, The learned court below rightly dismissed the suit of the plaintiffs. The learned counsel took pains to refer to the respective evidence on record and submitted that there was no proof of the essential facts pleaded for awarding a decree in favour of the plaintiffs. In the present case, the plaintiffs came with a positive case that the suit land in village No.30 of Kshetri Leikai within theThoubal Sub-Division belonged to and recorded in the name of Shree Mahaprabhu, installed and worshipped by the late Premamayee alias Ngangbi Maharani of Janmasthan and that the plaintiff No. 1 was the shebait. The fact that the land-in-question (i.e., the suit land) belonged to Maharani Premamayee alias Ngangbi Maharani and that she dedicated the suit land to the deity for sevapuja and further that she was the shebait of the deity, were the factual basis on which the plaintiffs claimed their right, title and interest over the suit land. The plaintiff traced its claim to his father RK Birachandrajit alias Birachandra Singh as the adopted son of Ngangbi Maharani. The fact that RK Birachandrajit alias Birachandra Singh Inherited all the properties including the shebaitship of the deity from the Ngangbi Maharani, as the adopted son was an essential fact to decide the right, title and Interest of the plaintiffs over the suit land. The learned trial court on appreciation of the evidence on record found that all these essential facts pleaded in the plaint were not proved by the plaintiffs and, therefore, the suit was dismissed.

12. In the suit, it was/is the plaintiffs who sought for a decree declaring the plaintiff No.2 (Shree Mahaprabhu) as the owner of the suit land and the plaintiff No. 1 as its shebait and further a decree that they have the absolute right of possession and enjoyment of the suit land undisturbed by the defendants and their privies, agents apart from a decree for perpetual injunction and a decree for damages, etc. The plaintiffs claim title over the suit land on the basis of the factum that the suit land is recorded in the name of Shree Mahaprabhu, plaintiff No.2, installed and worshipped by the late Pramamayee alias Nangbi Maharani of Janmasthan, Imphal and that she dedicated the suit land to the deity for its seva-puja. It was the plaintiffs who came to the Court for a decree as to its legal rights depending on existence of facts which he asserted in the pleadings. The plaintiff, therefore, is/was required to prove about the existence of all those facts from a decree. The facts those were required to be proved in the case are/were the title of late Premamayee over the suit land, installation of the deity, that the suit land was dedicated to the deity for its seva-puja a Hindu can dedicate for religious or charitable purpose any immovable property without any document/deed in writing. Though Section 5 of the Indian Trusts Act envisage that no trust in relation to any immovable property is valid unless a non-testamentary document in writing is signed by the author of the trust or the trustee and registered, or by the will of the author of the trust or trustee, but Section 1 of the Indian Trusts Act expressly saves from its operation all religious and charitable endowments either public or private. In the case of Tilkayat Shri Covindlalji Maharaj etc. v. State of Rajasthan and Ors., reported in AIR 1963 SC 1638, the Hon’ble Supreme Court held that dedication of a private property on charity need not be made in writing. It can be made orally or even can be inferred from conduct; but nonetheless, it must be shown that there is a valid dedication by a Hindu for religious or other charitable purposes. As Hindu normally while dedicating properties to a deity or to any other religious or for other charitable objects, ordinarily undergoes through ceremonies of Sankalpa or Samarpan; but those are not essential elements for creation of a valid endowment. It all depends on the real intention of the maker to dedicate the property for religious and charitable purposes. Such dedication must be made by open, unreserved and unconditional expression to part with the ownership of the property in favour of the deity to which the dedication is made. It is the substance and not the form that is essential for dedication. Mere performance of ceremonies will/would not be conclusive, it is required to be established by evidence that the property in reality Is dedicated to the deity. It is matter of evidence.

13. A valid endowment for religious or charitable purpose is a question of fact which is to be proved showing that the grant was made with the intention that profits should be applied for a particular purpose and that the profits have been in fact so applied (Madhab chandra v. Smti Rani Sarat Kamini reported in 15 CWN 126;

Bhakdharai Singh v. Ram Chandrajee, reported in ILR 10 pat 275). A dedication for a property to an idol or a deity given by a deed of endowment, is not sufficient without there being a real dedication of a property for religious purposes and is not a mere fact pertaining to creation of a perpetuity of the descendants of the settlers. In the suit, the plaintiffs also pleaded that the late Premamayee Maharani alias Ngangbi Maharani was the sheabit of the deity till her death and on her death, her adopted son and legatee and natural heir, viz., RK Birachandrajit alias Birachandra Singh, the father of plaintiff No. 1, inherited all her properties including the shebaitship of the deity. Existence of all these facts is/was essential for adjudication of title of the plaintiffs over the suit land. The plaintiffs in support of their case, examined the plaintiff No. 1 as PW 1 who claimed to be the shebait of the deity. He only stated in the Court that the deity was installed and worshipped in the temple. The witness stated that the said deity had/ has its separate Ingkhol (homestead land) WHICH WAS DEDICATED By late Premamayee Maharani during her lifetime to the said deity. The temple and the Mandap of the temple was constructed and dedicated by Maharani Premamayee to the deity. The said Maharani Premamayee had dedicated her properties to the deity for its seva-puja. The plaintiffs also relied upon exhibit A-3, the Jamabdandi (revenue record). The name of Lal Mahaprabhu is shown as the pattadar and RK Madhuryyajit Singh is shown as its shebait. Exhibit A-3, the Jamabandi, exhibit A-23, the affidavit of Smti. MK Binodini Devi do not speak anything about the installation of the deity, more particularly about the dedication of the suit land to the deity. Although there was no requirement for dedication of any right, nonetheless the plaintiffs cannot absolve themselves from their responsibility to prove the essential facts of a valid dedication to the deity for religious or charitable purposes. The learned trial Court duly addressed its mind to the respective contentions of the parties and thereafter, dismissed the suit for want of evidence in support of the case of the plaintiffs.

14. In answer to the contentions of the learned counsel for the appellants, Mr. T. Nandkumar that when both the parties led evidence, the issue of burden of proof loses its significance, it must be pointedout that it is/was the plaintiffs who desired the Court to give a judgment as to its legal right.

15. Under Section 101 of the Evidence Act, the burden of proving a fact rests on the party which substantially asserts in the affirmative all the issues and not upon the party who denies it/those. Illustration (b) to Section 101 of the Evidence Act, 1872 is a pointer to the issue which reads as follows:

“101. Burden of proof-Whoever…. Illustrations.

(a) ……………….

(b) As desires a Court to give Judgment that he is entitled to certain land in the possession of B, by reason of facts which he asserts, and B denies, to be true.” Must prove existence of those facts.”

On whom the burden of proof lies can be ascertained by taking note of the fact as to which of the parties would/will succeed if no evidence is adduced/given on the either side. The burden rests on the party who would fail if no evidence at all is adduced. The burden of establishing the case rests upon the party who essentially asserts positively the Issue raised. This burden remains unchanged and never shifts under any/all circumstances, as clearly indicated in Section 101 of the Act, 1872. The aforesaid rule pertains to the burden of proof as a matter of law and pleading. The other aspect of the burden of proof is the burden of adducing evidence. The burden of proof in this respect may shift throughout the trial. The distinction between the burden of proof as a matter of law and pleadings to that of adducing evidence, is a matter of prime importance. As alluded above, the plaintiffs came for declaration of their title and, therefore, it was for the plaintiffs to establish their title affirmatively. Where a plaintiff asks for a declaratory decree, he/she must prove his/her title and it cannot take advantage of the weakness of the defendants (Moren Mar Basselios Catholicos and Anr. v. Most Rev. Mar Peulose Athanasius and Ors., AIR 1954 SC 526).

16. The plaintiffs also rests their claim on the factum of plaintiff No. 1 being a shebait on the strength of adoption of his father by Maharani Premamayee, No proof, however, was forthcoming to establish the factum of adoption of the father of the plaintiff by the Maharani Premamayee Devi. Mr. Ch. Joychandra, the learned counsel appearing on behalf of the respondents, contended that such adoption of the only child of parents by Premamayee Devi is/was highly improbable, which contention cannot also be rejected.

17. In his Tagore Law Lectures on Hindu law of endowment and Charitable Trusts, Chief Justice BK Mukherjee authoritatively and comprehensively dealt with the law pertaining to Hindu religious and charitable trusts. In his scholarly treatise, the learned author observed that it was necessary to show that the grantor intended to divest and in fact divested himself completely of every part of the property that was the subject-matter of the grant and that the dedication was not a mere colourable device. To complete the gift there must be transfer of the apparent evidence of ownership from the donor to the donee. The test of a bona fide endowment generally are – how have the founder and his descendants trusted the endowed property and whether the income has been continuously applied to the objects of dedication. The subsequent acts and conduct of the parties are relevant only for the purpose of ascertaining what the original intention of the grantor was. If the profits of a dedicated property are appropriated by the executant for his own use and not spent for the worship of the idol and his subsequent dealings with the property show that he did not intend to create an endowment, the dedication would be held to be inoperative. Existence of so many documents is not necessary to prove a “Debutter”, but the absence of a document costs an onerous burden on the party who sets up dedication, to prove that the property has been absolutely bestowed upon an/the idol.

18. The fact that property is originarily described as Debutter is certainly a piece of evidence in favour of dedication, but was not conclusive. The learned author referred to the following observation of Cox, J. in Binod Behari v. Manmatha (21 CLJ 42):

“The fact that the property is called Debutter is a 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.”

19. Mr. T. Nandkumar, the learned Advocate General, contended to the effect that relevancy and reliance on any entry in a public record made in performance of official duty, is not doubted. There is no doubt that preparation of such records is an important task of the State and preparation of such records/documents involves an elaborate Statutory process. Section 35 of the Evidence Act, 1872 therefore enjoins that an entry in any public or other official book, register or record, stating a fact in issue or relevant fact, and made by a public servant in the discharge of his official duty, or by any other person in performance of a duty specially enjoined by the law of the country in which such book, register, or record is kept, is Itself a relevant fact. The law reposes confidence on the public officers entrusted with public duty and it is presumed that they will discharge their duties with accuracy and honesty. But such entries in/of revenue records by itself/themselves, in the absence of any other material evidence, does/do not conclusively prove the title and the case of the plaintiffs as pleaded.

20. The learned trial Court duly took into consideration the issues involved in the suit and adjudicated upon the rights of the parties on consideration of the materials on record. The learned trial Court on evaluation of the evidence, found that there was no proof in support of the plea that Maharani Premamayee alias Ngangbi Maharani was the founder shebait of Shree Mahaprabhu Devata, the plaintiff No. 2, and that the said deity was installed and worshipped in a temple constructed on the homestead land under patta No.40/ 145(old)/154(new) situated at Janmasthan, which was dedicated by the late Maharani Premamayee to the said deity. The learned trial Court also did not find any semblance of proof that the suit land was dedicated to the deity which was installed and worshipped in the said homestead land of the late Maharani Premamayee by her for its seva-puja and was also enjoying the suit land as the shabait till her death. The learned trial court took note of the fact that the suit land was mutated only in 1982 whereas the other lands were mutated as early as in 1947. The learned trial court further found that there was no evidence as to whether the deity mentioned in the Jamabandi patta at exhibit A-3 was the one and the same that was installed by Maharani Premamayee alias Ngangbi Maharani. According to the learned trial court, exhibit A-3 did not conclusively establish that the late Maharani Premamayee was the founder-shebait of the pattadar deity of the land under patta No.40/145(old)/154(new) situated at Janmasthan and that there was also no document to show that the land was dedicated to the deity pattadar by the late Maharani Premamayee. The learned trial Court noted the discrepancy in the evidence of PW 1 as to the issue regarding installation of the deity itself. Further the learned trail Court on consideration of the evidence, held that it was not possible to hold that Maharani Premamayee and the Ngangbi Maharani were the one and the same persons. The findings and conclusions arrived at by the learned trial Court in the facts and circumstances, cannot be said to be erroneous.

21. On consideration of the entire materials/evidence on record, it appears that the title and the case of the plaintiff could not be established positively/affirmatively, Mutation of name of a person in the revenue record does not ipso facto create or extinguish the title of the person, nor does it lead to any presumptive value. The revenue records basically entitled a person to pay the land revenue. Mere entry in the revenue records does not impso facto lead to the conclusion that the mutation in favour of the plaintiffs conveys title in their favour.

22. On consideration of the overall evidence on records, both oral and documentary, and for the reasons and discussions made above, I do not find any merit in this appeal and accordingly, the appeal stands dismissed. However, in the facts and circumstances of the case, there shall be no order as to costs.


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