RSA No. 1457 of 2006 1
IN THE HIGH COURT OF PUNJAB AND HARYANA
AT CHANDIGARH
RSA No. 1457 of 2006
Decided on : 05-02-2009
Shree Niwas and another
....Appellants
VERSUS
Kanhiya Lal and others
....Respondents
CORAM:- HON’BLE MR. JUSTICE MAHESH GROVER
Present:- Mr. Arun Jain, Senior Advocate with
Mr. Amit Jain, Advocate
for the appellants.
MAHESH GROVER, J
This is plaintiff’s regular second appeal directed against the
judgements of the learned Trial Court dated 21.12.1999 and that of the First
Appellate Court dated 19.12.2005.
The plaintiffs-appellants filed a suit for declaration and
mandatory injunction
A declaration was sought by the predecessor-in-interest of the
appellant namely Bansi Dhar Acharya to the effect that he alongwith several
other persons who were arrayed as respondent nos. 7 to 20 in the suit were
owners in possession of the suit property, which was fully described in the
schedule attached to the plaint i.e. (a) temple known as Acharya temple of
Lord Shri Rang Nath ji, siutated in Lohar Bazar, Bhiwani; (b) four shops
attached with the temple; (c ) Bagichi with room, tibari, kitchen, kotheri,
diggi and garden; and (d ) agricultural land measuring 43 kanals 2 marlas
situated in patwar circle of Bhiwani Lohar, Bhiwani.
RSA No. 1457 of 2006 2
The dispute was regarding the properties mentioned at item no.
(a) and (b). It was pleaded that a trust deed dated 30th July, 1969 established
by respondent nos. 1 to 5 in the name of Shri Rang Nath Ji Mandir Trust
being represented by the said respondents as trustees is illegal and not
binding upon his rights. Relief for mandatory injunction was sought to the
effect that respondent nos. 1 to 6 be directed to restore all the benefits of the
properties having been received by them.
It was pleaded in the suit that the plaintiff-appellant belongs to
Acharya family and othe other respondents who are arrayed as defendant
nos. 7 to 20 in the suit were related to him. As per the pedigree table which
is attached as Annexure C, predecessor-in-interest of the plaintiff and
proforma defendants were owners in possession of these properties. It was
pleaded that the land under the temple was a gift to their predecessor in
interest namely Shri Ram Saran Dass, Ram Narain and Ram Parshad
Acharya by the owners of the property and since they were the decendants
of the beneficiaries of the gift deed i.e. Shri Ram Saran Dass, Ram Narain
and Ram Parshad Acharya, the respondents were in unauthorised possession
of the same. It was next pleaded that the plaintiff Gopi Ram and Ram
Kumar had earlier filed a suit on 4.7.1969 titled as ‘Gopi Ram & others
versus Nand Kishore & others’ claiming that the suit property was trust
property. This suit was decided on 22.2.1980 and a preliminary issue
regardings the maintainbility of suit was decided in favour of the appellants.
The other two issues which were as follows:-
(i)Whether the Trust in dispute is a public charitable and
religious Trust?
(ii)Whether the applicants are interested in the said Trust?
RSA No. 1457 of 2006 3were decided in favour of the appellants and against the present respondents
and it was held as under:-
“Para no. 30
From the above witnesses of the petitioners it is
clear that all of them have stated:-
i) that the temple was founded by Sheonath Ji and
Sheoji Ram;
ii) that they had appointed Kulshekhar and
Ghanshayam Dass Acharyas as the Pujaris;
iii)that no salary was paid to the Acharyas and they
colleccted the offerings of the temple and rent
from the two shops whereas the remaining two
shops were in possession of V. Acharya
Advocate and Harish Acharya without payment
of any rent;
iv)that the Acharyas never rendered any account to
any one;
v) that the decendants of Ghanshayam Dass
Acharya and Kulshekhar Acharya were
performing Puja and collecting the return from
the temple and other property of the temple turn
by turn according to their mutual settlement;
vi)that prior to the birth of Ex. A/1 there was no
document of Trust;
vii)that the temple was open to general public.
From the trend of the cross-examination of these
RSA No. 1457 of 2006 4witnesses, the case of the respondents is that the temple was
created by their ancestors and they were the owners of the
temple and its properties.
Para No.39
From the evidence on record, it is also established
that the defendants of Ghanshayam Dass and Kulshekhar Ji are
the Pujaris of the temple. They are in possession of the temple
building and the 2 shops through tenants. It is also evident that
they are performing the Puja in the temple and realising the rent
from 2 tenants and also receiving the Charhawa and the other
offerings from the temple according to their turns as settled in
between the successors of Ghanshayam Dass and Kulshekhar
Dass Ji. They certainly have Pujaris rights in the temple. They
never maintained any accounts nor did they render any
accounts to anybody. The petitioners never realized any rent of
the shops or collected the offerings made in the temple. The
Pujaris are managing the affairs of the temple and its properties.
The present petition was instituted on 4.7.1969. The trust deed
Ex. A/1 took birth on 30.7.1979 i.e. during the pendency of
this petition. At the time of the institution of the petition there
was no trust deed in writing although a public trust of
charitable and religious nature had already been founded by
Sheonath Mal Ji and Sheoji Ram, the ancestors of the
petitioners and Kulshekhar and Ghanshayam Dass were Pujaris
o the temple of the trust. From the previous acts and conduct of
the parties, it is evident that neither Ghanshayam Dass or
RSA No. 1457 of 2006 5Kulshekhar nor their ancestors maintained or rendered any
accounts to anybody. The turns as contained in trust deed Ex.
A/1 could provide cause of action on the date of the institution
of the present petition i.e. 4.7.1969 to claim rendition of
accounts from the respondents. I am, therefore, of the
considered view that on the day of institution of the petition i.e.
4.7.1969 the petitioners had no cause of action against the
respondents for filing the petition and that being so the very
base i.e. the “cause of action” having been knocked out. I have
no other alternative except to dismiss the suit, although issues
No. 1 and 2 have been decided in favour of the petitioners.
In view of my discussion under issue No. 3 of
Relief this fails and is hereby dismissed.”
It was held that Trust was created in the year 1979 by the
predecessor in interest during the pendency of the suit and on that basis of it
was pleaded by the plaintiff-appellant that during the pendency of the
previous litigation a Trust deed dated 30.7.1979 was created in the name
and style of Shri Rang Nath Ji Mandir Trust and that the respondents started
claiming themselves to be the trustees and grab the property of the Mandir.
Parties who were arrayed as defendant nos. 8, 9, 12, 13 and 15
filed their joint written statement and admitted the claim by the plaintiffs-
appellants in toto. Nand Kishore who was arrayed as proforma respondent
no. 20 also submitted to the identical pleadings of defendant nos. 1 to 4. It
was pleaded that temple was founded by Sheoji Ram and Sheonath Ji while
Kulshekhar and Ghanshayam Dass were appointed as its Pujaris. They were
entitled to receive the Chahrawas and hold the office of Pujaris. Plaintiff
RSA No. 1457 of 2006 6
Bansidhar was one of the decendants of Ghanshayam Dass Acharya while
Shri Sheoram and Sheonath Ji were fore-fathers of defendants Gopi Ram,
Shree Kishan and Lakshmi Niwas, trustees of the Trust who have dedicated
the suit property in the name of Shri Rangnath Ji. The temple and four
shops were constructed and a public,religious and charitable trust continued
to exist. It was pleaded that the same was being managed by them as
decendants of Sheoji Ram and Sheonath Ji and Gopi Ram. The filing of the
earlier suit and findings therein were admitted. The acquisition of some of
the property by the Improvement Trust was also admitted. It was next
pleaded that the contesting defendants had filed a civil suit no.43 of 1997 by
Gopi Ram and other trustees against Mange Ram for land measuring 3
kanals 12 marlas it was decreed and it was held therein that the suit property
belonged to the Idol and decendants of Kulshekhar and Ghanshayam Dass
were only Pujaris and the plaintiff had no locus standi and was estopped
from filing the suit.
Lastly, it was pleaded that neither the plaintiff nor the persons
who were arrayed as proforma defendants were owners of the suit property.
It was never built by the predecessor in interest of the appellant and that the
gift deed by the owners of the property was in favour of the Mandir and not
in favour of the individuals as has been claimed by the appellants. Both the
parties went to trial on the following issues:-
1. Whether the plaintiff and proforma defendants No. 7 to 20
are the owners and in possession of the property in dispute?
OPP.
2. Whether the trust constituted by defendants No. 1 to 5 is
illegal and has no concern with the property in dispute? OPP.
RSA No. 1457 of 2006 7
3. Whether Sheo Raj, Sheoji Ram and Sheo Nath founded the
trust and built the temple, if so its effect? OPD.
4. Whether idol Rangnath Ji is owner of the property and the
same is being managed by the trustee? OPD.
5. Whether suit is not maintainable in the present form? OPD.
6. Whether plaintiff is estopped from filing the present suit by
his act and conduct? OPD.
7. Whether suit is bad for non-joinder of necessary parties?
OPD.
8. Whether the suit is barred by the principle of resjudicata, as
alleged? OPD.
9. Whether suit has not been properly valued for the purposes
of court fee and jurisdiction? OPD.
10.Whether the plaintiff has no locus standi to bring the suit?
OPD.
11.Relief.
Both the Courts concluded that in the earlier suit the following
findings were recorded:-
i) that Sheoji Ram and Sheonath Mal, the ancestors of the
petitioners are proved to be the authors of the trust;
ii) that the intention to create a trust is evident with certainty
from the acts and conduct of the founders in general and
from the judgment and decree Ex. A.5 and A.6 on the basis
whereby Gopi Ram petitioner had received the compensation
amount in capacity of his being a trustee;
iii)that the purpose of the trust is also evident that the founders
RSA No. 1457 of 2006 8and their descendants were the followers God Rangnath Ji
and that they wanted to propagate the ideas of the said
religious thought and to provide a temple for general public
to meditate in the temple;
iv)the property of the trust is very well specified which includes
a building of the temple, a Bagichi along with the rooms and
the Diggi, four shops and agricultural land measuring 26
Bighas 4 Biswas situated in the area of village Lohar,
Bhiwani.
v) The beneficiaries of the trust are the public at large
it was also held that the trust in dispute is a public trust of
charitable and religious nature and the petitioners, who are
now the contesting defendants are the founders of the trust”
It was thus concluded that the Public Charitable Trust
continued to exist and that the plaintiffs-appellants had no right to claim
property of the Trust. It was further held that the respondents were only the
Pujaris and were using the Chahrawas and other offerings for the
management of the Trust.
Both the Courts also concluded that the appellant was
precluded by his own act and conduct as he had earlier filed the suit and the
judgment and decree dated 31.7.98 was not specifically challenged.
The suit was accordingly dismissed by both the Courts below.
Learned counsel for the appellant while arguing before this
Court in regular second appeal primarily raised a contention that the gift
deed of the year 1859 was in the name of three persons i.e. Shri Ram Saran
Dass, Ram Narain and Ram Parshad Acharya who were their predecessor in
RSA No. 1457 of 2006 9
interest and in view of the gift deed they became the owners of the property.
A translated copy of the gift deed was also produced before this Court,
which is taken on record. No other point was raised.
After hearing learned counsel for the appellants and perusing
the impugned judgments and the gift deed, I am of the considered opinion
that the contention raised by the learned counsel for the appellants is totally
mis-placed. A perusal of the gift deed reveals that it was made in the name
of Thakur Rang Ji Maharaj and not gifted to individuals as has been pleaded
by the learned counsel for the appellant. The relevant extract of the gift
deed is extracted hereunder:-
“we, without pressure and with consent, with
conscious mind and health, without temptation, alurement for
constructing Pacca Well and Baag Tibari to Thakur Rang Ji
Maharaj and gifted to Ram Parshad, Ram Saran Dass, Ram
Narain son of Shri Krishan Dass Ji son of Shri Sukhdas ji
Brahmin, resident of Town Pundari, area Jind, siutated at Town
Bhiwani and Pujari Mandir Shri Rangnath Ji Maharaj.”
It is clear therefore that the property was gifted to the Mandir
and right since then it has continued to exist as a Public Charitable and
Religious Institution for which the respondents who were Pujaris were
performing the essentials. The trust deed was created subsequently in the
year 1979.
In this view of the matter, the concurrent and consistent
findings to the aforesaid effect as determined by both the Courts below as
also the findings recorded in the prior suit, the impugned judgments cannot
be said to be based on perverse findings.
RSA No. 1457 of 2006 10
No substantial question of law arises in the present appeal in
view of the above and the findings being not perverse, hence, no interfernce
is warranted in the present appeal and the same being devoid of any merit is
hereby dismissed.
February 5 , 2009 (Mahesh Grover) rekha Judge