R.S.A. No. 485 of 2009 (O&M) -1-
IN THE PUNJAB AND HARYANA HIGH COURT AT
CHANDIGARH
R.S.A. No. 485 of 2009 (O&M)
Date of Decision: 28.01.2009
Vijay Kumar & another
.......... Appellants
Versus
Durga Ashram Charitable Trust (Regd.) Nanak Chand Dharamshala &
others.
...... Respondents
CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA
Present: Mr. O.P. Hoshiarpuri, Advocate,
for the appellants.
****
VINOD K. SHARMA, J. (ORAL)
This regular second appeal is directed against the judgment and
decree dated 5.11.2008 passed by the learned lower appellate Court vide
which suit filed by the plaintiff-respondents i.e. Durga Ashram Charitable
Trust (Regd.) Nanak Chand Dharamshala seeking declaration that the sale
deeds executed by defendants No. 3 & 4 in favour of defendants No. 1 & 2
were illegal, null and void and not binding on the rights of the plaintiff-
respondents stands decreed.
The learned trial Court dismissed the suit by recording a
finding that the plaintiff failed to connect the property with that of Trust
property. The judgment and decree of learned trial Court stands reversed by
the learned lower appellate Court by recording the following findings :-
R.S.A. No. 485 of 2009 (O&M) -2-
“I have weighed the pros and cons of respective
contention. Huge number of judicial
pronouncements, admitted facts and the litigation
inter-se plaintiff-trust and the purchasers as well as
seller of trust property coax me to set aside a
patently wrong and perverse judgement which is
based on flimsy reflections of insignificant facts
while sweeping aside the hard and settled legal as
well as documentary evidence.
Indisputedly, the original owner of the property in
dispute was Nanak Chand. Again, it is an admitted
fact that he formed trust in the year 1934. This trust
deed is Ex.PW/4A on record. This trust property
was meant for staying Mahatmas, Sadhus, Musafirs
and for Baarat. The trustees could not conver the
same to any other use and for Mandir, School,
Pathshala etc. In order to meet its expenses. Shri
Nanak Chand constructed eight shops in front of
Dharamshala. These shops were given on rent to
different persons. Trustees were to appoint a person
to look after this Dharamshala. Manager was to be
paid from rental income. Any balance there after
was meant to be used for the repair of Dharamshala
only. However, unfortunately, with the passage of
time all trustees appointed under the Trust Deed
dated 7.5.1934 expired. The trust property was left
rudderless and hardless. Seeing this state of affairs
one Kanshi Ram Jain filed a suit under Section 59 of
the Indian Trust Act for the execution of trust by the
court till the appointment of new trustees. The
learned District Judge, Ferozepur appointed five
trustees on 23.7.1975. These trustees were Bilas
R.S.A. No. 485 of 2009 (O&M) -3-Chand Jain, who was adopted son of Nanak Chand,
Vinod Kumar Jain, Jinesh Kumar Jain, Bhim Sain
Jain and Kailash Chand Jain. Bilas Chand Jain has
expired. Smt. Parkash Wati is widow of this Bilas
Chand Jain; whereas, Navin Kumar is his son.
Living Trustees started managing the affairs of the
trust. They were recovering rent from the tenants.
Defendant No. 5 to 13 are tenants of the trust. Since
some of the tenants were not paying rent to the trust,
ejectment applications have to be filed against them.
One such application was filed by the trust against
Rattan Lal Jain. It is amusing to see that this
ejectment application was filed by Navin Kumar
Jain claiming himself to be the trustee of plaintiff
Durga Ashram Charitable Trust against Rattan Lal
Jain i.e. Defendant No.13 here. It is interested to
note here that this Navin Kumar Jain is one of the
persons who sold trust property through his
Muthtiar-i-am to defendants no.1 and 2. Rattan Lal
Jain contested his petition. This petition was
dismissed on the ground that Naivn Kumar Jain had
no locus standi to file the present petition on behalf
of trust Durga Ashram Charitable Trust. This order
is Ex.P1 on record. At para no.9 of this order the
learned Rent Controller specifically recorded a fact
that the office trustee is not inheritable. On the
death of a trustee another trustee has to be
appointed by the District Judge. Thus, the Court
held that Navin Kumar is neither trustee of the
Durga Ashram Charitable Trust nor has been
authorised to file ejectment application on behalf of
the trust. Thereafter, Rattan Lal Jain, defendant no.
R.S.A. No. 485 of 2009 (O&M) -4-
1.3 here and tenant of shop no.8 served a notice on
the plaintiff trust for seeking its advice as to what to
do since he has received summons from the court
where Vijay Kumar and Smt. Asha Rani (It is
pertinent to record that they are purchasers and
defendants no. 1 and 2 here) are asking for rent on
the strength of sale deeds dated 25.3.1994 and
29.3.1994 (which are bone of contention). Rattan
Lal refused to oblige these purchasers who claimed
themselves to be landlord on the strength of sale
deeds in their favour. Their petition was dismissed.
Furthermore, one Pt. Babu Ram and two others
preferred a suit under section 92 CPC in respect of
Public trust known as Durga Asharam Charitable
trust property for removing the trustees i.e. Vinod
Kumar, Bhim Sain, Kailash Chand, Parkash Wati
alongwith Navin Kumar Jain, who were
representing themselves as trustees of the trust as
they were not managing affairs of the trust in the
spirit of trust deed dated 7.5.1934. Further relief
was sought that defendants be ordered to stop the
running of Model School known as Arun Jyoti Model
Sachool. Trustees, namely, Bhim Sain, Kailash
Chander, Jinesh Kumar and Vinod Kumar Jain
appeared in the said suit and suffered statement that
they are trustees of Durga Ashram Charitable Trust.
They are running the trust as per terms and
conditions contained in trust deed dated 7.5.1934
and in future also they will run all the affairs as per
terms of the trust deed. This statement suffered by
them jointly is Ex.P-7 on record. On account of this
statement the plaintiffs withdrew the said suit. The
R.S.A. No. 485 of 2009 (O&M) -5-statement suffered by the plaintiffs is dated
25.8.1994 and the suit was dismissed as withdrawn
accordingly. Besides that one Babu Ram Aggarwal
alongwith Yadwinder Singh, Parkash Wati Jain and
Surinder Kumar filed a suit under section 92 CPC
against Durga Ashram Charitable trust through its
trustees Navin Kumar and other four trustees for
their removal on the ground that they were not
managing affairs of the trust in a proper manner.
The application for getting leave to institute this suit
is Ex.P10. It is pertinent to record here that Parkash
Wati Jain, who sold the property of the trust vide
sale deeds, which are bone of contention, admitted
in para no.4 of the plaint that Durga Ashram
Charitable Trust is a registered Public Charitable
trust which was created by Late Nanak Chand sonof
Durga Parshad, who is father-in-law of defendant
no.3 i.e. Smt. Parkash Wati and grand father of
Navin Kumar Jain. It has again been admitted in this
suit that in the year 1975 Shri O.P. Saini, the then
learned District Judge Ferozepur appointed new
trustees on the application moved by one Kanshi
Ram as most of the trustees had died. It has been
further averred that trustees appointed by the
learned District Judge are not taking any interest in
the management of the trust property and only Navin
Kumar is managing the affairs of the trust, but he
too is very negligent and careless about its
management. Since Parkash Wati, who is daughter-
in-law of the founder of the trust rather is interested
in preservation of its upkeep and advancement,
therefore, trustees are liable to be removed.
R.S.A. No. 485 of 2009 (O&M) -6-
However, this suit was dismissed under order 9 rule
8 CPC and this order is Ex.P12 on record. It is
worth recording here that this Parkash Wati Jain
took ‘U’ turn thereafter and alleged that the property
which was in the hands of the trust was the personal
property of her husband from whom he and her son
inherited and refused to acknowledge a fact that her
husband was appointed as trustee by the court of
learned District Judge on 23.7.1975. Should she be
believed? Before commenting further on her
character it is pertinent to record subsequent
litigation as well. Plaintiff trust filed an ejectment
petition against Janak Raj Sikri tenant of Shop no. 5.
Again, it was held that relationship of landlord and
tenant exists between them. This judgment is Ex.P13
on record. Durga Ashram Charitable Trust then
preferred an ejectment application against Vijay
Kumar Sethi, who was tenant in shop no.4. It is
pertinent to record here that this Vijay Kumar Sethi
is the main who executed sale deeds on behalf of
Smt.ParkashWati and Navin Kumar Jain, being their
mukhtiar-i-am. He is defendant no.5 in the main
suit. He took the objection in the said ejectment
application that no relationship of landlord and
tenant exists between them. Navin Kuma and
Parkash Wati sold this property including this shop
in favour of Vijay Kumar son of Raj Kumar and
Asha Rani wife of Vijay Kumar through registered
sale deed dated 25.3.1994 and 29.3.1994 and after
execution of the said sale Vijay Kumar and his wife
Asha Rani became landlord/owner of the property.
Again, an issue was framed ‘whether there exists
R.S.A. No. 485 of 2009 (O&M) -7-relationship of landlord and tenant between them.
The Rent Controller recorded finding in favour of
Durga Ashram Charitable Trust holding that
relationship of landlord and tenant exists between
them. It is further pertinent to record that Parkash
Wati appeared in this case as RW1 alleging that her
father-in-law Nanak Chand was owner of the
property in dispute and after his death his son Bilas
Chand Jain became owner of the property in
question. Her statement was totally disbelieved.
This order is Ex.P15 on record. Most important
part of this entire plethora of litigation is that when
Durga Ashram Charitable Trust i.e. Plaintiff Trust
preferred an ejectment petition against Karori Mal,
their tenant, Vijay Kumar and Asha Rani preferred
an application under order 1 rule 10 C.P.C. for
getting themselves impleaded as party, since they
had purchased the property. They were impleaded
as party. They contested the ejectment application
like anything. Again, a question arose whether
relationship of landlord and tenant existed between
the parties. Finding was recorded in Durga Ashram
Charitable Trust’s favour. Vijay Kumar and Asha
Rani preferred appeal against the same. They were
aggrieved of the findings returned by the learned
Rent Controller on issue no.1 and 2 i.e. whether
relationship of landlord and tenant existed between
the trust and said Karori Mal (deceased) now
represented through Smt.Krishna Devi. Their
appeal was dismissed. All their pleas were negated.
Durga Ashram Charitable Trust too preferred
appeal against the judgment and decree dated
R.S.A. No. 485 of 2009 (O&M) -8-8.10.1999. Vijay Kumar Sethi son of Shri Ram Lal
too preferred appeal against this judgement. Again,
appeal preferred by Vijay Kumar Sethi was
dismissed and that of Durga Ashram Charitable
Trust was accepted. This judgement is Ex.P-19 on
record. I must record it at this juncture that when
Vijay Kumar and Asha Rani failed in their attempt to
be declared as landlord of the property they filed
appeal against the order of the Appellate Court in
the Hon’ble High Court. This case was report in
PLR 2002 (3), 749. Their appeal was dismissed.
They were never accepted to be landlord at any
point of time.
Against this factual and legal back
ground this plaintiff/appellant-trust has come up in
appeal against the findings of the learned trial court
which dared to ignore all this. It is pertinent to
record that Smt.Parkash Wati Jain and Navin
Kumar Jain have never been accepted to be owners
of the property at any point of time in any litigation
that took place between plaintiff/appellant-trust and
its tenants. Navin Kumar Jain himself tried to
litigate claiming himself as one of the trustees of the
plaintiff/appellant-trust, but his contention was
negated and he was thrown out from the array of
trustees. Smt.Parkash Wati Jain appeared as a
witness in favour of those tenants who could have
the capacity to oust the plaintiff/appellant-trust from
its property. Her contentions were negated at all
points. How can one believe Smt. Parkash Wati Jain
when she herself alongwith few others filed a suit
under section 92 CPC alleging facts as detailed by
R.S.A. No. 485 of 2009 (O&M) -9-the plaintiff/appellant-trust and thereafter taking ‘U’
turn that the property does not belong to her father-
in-law exclusively from whom her husband inherited
and on his death she and her son inherited. Vijay
Kumar son of Ram Lal, who is mukhtiar-i-am of Smt.
Parkash Wati and Navin Kumar Jain too suffered
losses in litigation at all point, but dares to sell
property of the trust at the behest of Parkash Wati
and Navin Kumar Jain on the strength of mukhtiar-
nama in favour of his relation i.e. Vijay Kumar and
Asha Rani. Contention of the learned counsel
representing the purchasers that property in
question is different one has been first time raised in
appeal. At no point of time in any litigation what-
so-ever which is huge in number any one disputed
either identity or unity of the property. How it
occurred to the counsel for the purchasers, is
beyond imagination. Had it been the situation like
this it would have been asserted by Smt. Parkash
Wati and Navin Kumar Jain that the property sold
by them is different property from the trust property
which was given by Nanak Chand Jain to Trust
created by him. On the other hand they have been
contesting hotly and with full vehemence that
property in question belong to them and they have
rightly sold the same to Vijay Kumar and Asha Rani.
Bazar Loharan Wala and Bazar Krishan Sudama
are not two different Bazars, rather continuity of the
one. Had it been so, the tenants as well as self
proclaimed owners would have asserted so. Trust
deed dated 7.5.1934 has conferred title of ownership
on Durga Ashram Charitable Trust. Navin Kumar
R.S.A. No. 485 of 2009 (O&M) -10-Jain neither was trustee nor had any right at any
point of time to claim himself to be a trustee. Five
trustees were appointed by the leaned District Judge
on 23.7.1975. His father Bilas Chand was
appointed as trustee. He has expired. His trustship
could not be inherited. Therefore, neither Parkash
Wati nor Navin Kumar had any interest in the
property which they sold through Mukhtiar-i-am
Vijay Kumar. Since they had no right or title in the
property in dispute, they could not convey any title
to Viay Kumar and Asha Rani. Sale deeds on the
face of it are nothing but the result of fraud played
upon by Smt. Parkash wati Jain and Navin Kumar
Jain through Vijay Kumar upon the purchaser i.e.
Vijay Kumar and Asha Rani. I must record that it is
duty of the trustees to safeguard its interest.
Wrongful claim and attempt to misappropriate trust
property are required to be shunned and
discouraged. Trustees of the plaintiff trust must act
vigilantly to preserve any usurpation or
encroachment. A school is certainly there but as per
letter and spirit of the trust deed it is running
contrary to the same. Why the trustees are silent
and have not acted against the school is
intriginning. They should act without any hesitation
and fulfill their social, religious and legal
responsibility. So far as the impugned judgment is
concerned, it is suffice to say that it is totally based
on flimsy reasoning, conjectures, surmises and
ocular versions which have no relevancy against
judicial pronouncements qua the matter in issue.
R.S.A. No. 485 of 2009 (O&M) -11-
Mr. O.P. Hoshiarpuri, learned counsel for the appellants
contends that the judgment and decree passed by the learned lower appellate
Court cannot be sustained in view of the fact that it was vendors who had
been maintaining and looking after the property in dispute right from
inception of the Trust deed. The contention was that the sale by ostensible
owner could not be challenged by the Trust as the appellants were bona fide
purchasers for consideration.
It is also the contention of the leaned counsel for the appellant
that mere suit for declaration was not competent and, therefore, the decree
of the learned lower appellate Court is, thus, perverse.
On the contention raised above, it is stated by the learned
counsel for the appellants that the substantial questions of law arise for
consideration by this Court :-
1. Whether the Trust which was merely a paper transaction
could challenge the sale deed executed by defendants No.
3 & 4 in favour of the appellants who were bona fide
purchasers for consideration ?
2. Whether the mere suit for declaration without seeking
consequential relief of possession was competent ?
On consideration of the matter, I find no force in the contention
raised by the learned counsel for the appellants. The finding of fact recorded
by the learned lower appellate Court, as reproduced above, would show that
the Trust was in possession of the property and numerous attempts of
defendants No.3 & 4 to claim ownership of the suit property were rejected
R.S.A. No. 485 of 2009 (O&M) -12-
by the Court in number of suits/ rent petitions. The appellants were also
party to the previous litigation and, therefore, it could not be said that they
were bona fide purchasers for consideration or the Trust at any time allowed
defendants No.3 & 4 to project themselves as ostensible owners in
possession of the property in dispute.
The substantial questions of law, thus, as framed does not arise
for consideration by this Court and in any event the substantial question so
framed deserves to be answered against defendants No.1 & 2.
The second substantial question of law also deserves to be
noticed to be rejected. In the previous litigation it was proved that it was the
Trust which was owner in possession of the property in dispute, therefore,
suit for declaration declaring the sale deed to be null and void and not
binding on the rights of the plaintiffs was, thus, maintainable.
No ground for interference with the well reasoned judgment of
the learned lower appellate Court is made out.
No merit.
Dismissed.
28.01.2009 (Vinod K.Sharma) 'sp' Judge