{"id":141451,"date":"2009-02-05T00:00:00","date_gmt":"2009-02-04T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/shree-niwas-and-another-vs-kanhiya-lal-and-others-on-5-february-2009"},"modified":"2018-09-17T06:15:20","modified_gmt":"2018-09-17T00:45:20","slug":"shree-niwas-and-another-vs-kanhiya-lal-and-others-on-5-february-2009","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/shree-niwas-and-another-vs-kanhiya-lal-and-others-on-5-february-2009","title":{"rendered":"Shree Niwas And Another vs Kanhiya Lal And Others on 5 February, 2009"},"content":{"rendered":"
Punjab-Haryana High Court<\/div>\n
Shree Niwas And Another vs Kanhiya Lal And Others on 5 February, 2009<\/div>\n
RSA No. 1457 of 2006                 1\n\n        IN THE HIGH COURT OF PUNJAB AND HARYANA\n                     AT CHANDIGARH\n\n                           RSA No. 1457 of 2006\n                          Decided on : 05-02-2009\n\nShree Niwas and another\n                                                  ....Appellants\n\n                   VERSUS\n\nKanhiya Lal and others\n                                                  ....Respondents<\/pre>\n
CORAM:- HON’BLE MR. JUSTICE MAHESH GROVER<\/p>\n
Present:-   Mr. Arun Jain, Senior Advocate with
\n            Mr. Amit Jain, Advocate
\n            for the appellants.\n<\/p>\n
MAHESH GROVER, J<\/p>\n
            This is plaintiff’s regular second appeal directed against the<\/p>\n
judgements of the learned Trial Court dated 21.12.1999 and that of the First<\/p>\n
Appellate Court dated 19.12.2005.\n<\/p>\n
            The plaintiffs-appellants filed a suit for declaration and<\/p>\n
mandatory injunction<\/p>\n
            A declaration was sought by the predecessor-in-interest of the<\/p>\n
appellant namely Bansi Dhar Acharya to the effect that he alongwith several<\/p>\n
other persons who were arrayed as respondent nos. 7 to 20 in the suit were<\/p>\n
owners in possession of the suit property, which was fully described in the<\/p>\n
schedule attached to the plaint i.e. (a) temple known as Acharya temple of<\/p>\n
Lord Shri Rang Nath ji, siutated in Lohar Bazar, Bhiwani; (b) four shops<\/p>\n
attached with the temple; (c ) Bagichi with room, tibari, kitchen, kotheri,<\/p>\n
diggi and garden; and (d ) agricultural land measuring 43 kanals 2 marlas<\/p>\n
situated in patwar circle of Bhiwani Lohar, Bhiwani.
\n RSA No. 1457 of 2006                   2<\/span><\/p>\n
             The dispute was regarding the properties mentioned at item no.<\/p>\n
(a) and (b). It was pleaded that a trust deed dated 30th July, 1969 established<\/p>\n
by respondent nos. 1 to 5 in the name of Shri Rang Nath Ji Mandir Trust<\/p>\n
being represented by the said respondents as trustees is illegal and not<\/p>\n
binding upon his rights. Relief for mandatory injunction was sought to the<\/p>\n
effect that respondent nos. 1 to 6 be directed to restore all the benefits of the<\/p>\n
properties having been received by them.\n<\/p>\n
             It was pleaded in the suit that the plaintiff-appellant belongs to<\/p>\n
Acharya family and othe other respondents who are arrayed as defendant<\/p>\n
nos. 7 to 20 in the suit were related to him. As per the pedigree table which<\/p>\n
is attached as Annexure C, predecessor-in-interest of the plaintiff and<\/p>\n
proforma defendants were owners in possession of these properties. It was<\/p>\n
pleaded that the land under the temple was a gift to their predecessor in<\/p>\n
interest namely Shri Ram Saran Dass, Ram Narain and Ram Parshad<\/p>\n
Acharya by the owners of the property and since they were the decendants<\/p>\n
of the beneficiaries of the gift deed i.e. Shri Ram Saran Dass, Ram Narain<\/p>\n
and Ram Parshad Acharya, the respondents were in unauthorised possession<\/p>\n
of the same. It was next pleaded that the plaintiff Gopi Ram and Ram<\/p>\n
Kumar had earlier filed a suit on 4.7.1969 titled as ‘Gopi Ram & others<\/p>\n
versus Nand Kishore & others’ claiming that the suit property was trust<\/p>\n
property.   This suit was decided on 22.2.1980 and a preliminary issue<\/p>\n
regardings the maintainbility of suit was decided in favour of the appellants.<\/p>\n
The other two issues which were as follows:-\n<\/p>\n
             (i)Whether the Trust in dispute is a public charitable and<\/p>\n
               religious Trust?<\/p>\n
             (ii)Whether the applicants are interested in the said Trust?
\n RSA No. 1457 of 2006                    3<\/span><\/p>\n<\/blockquote>\n
were decided in favour of the appellants and against the present respondents<\/p>\n
and it was held as under:-\n<\/p>\n
                         “Para no. 30<\/p>\n
                         From the above witnesses of the petitioners it is<\/p>\n
            clear that all of them have stated:-\n<\/p><\/blockquote>\n
                         i) that the temple was founded by Sheonath Ji and<\/p>\n
                             Sheoji Ram;\n<\/p><\/blockquote>\n
                         ii) that   they had       appointed   Kulshekhar    and<\/p>\n
                             Ghanshayam Dass Acharyas as the Pujaris;<\/p>\n<\/blockquote>\n
                         iii)that no salary was paid to the Acharyas and they<\/p>\n
                             colleccted the offerings of the temple and rent<\/p>\n
                             from the two shops whereas the remaining two<\/p>\n
                             shops were in possession of V. Acharya<\/p>\n
                             Advocate and Harish Acharya without payment<\/p>\n
                             of any rent;\n<\/p><\/blockquote>\n
                         iv)that the Acharyas never rendered any account to<\/p>\n
                             any one;<\/p><\/blockquote>\n
<\/blockquote>\n
                         v) that the decendants of Ghanshayam Dass<\/p>\n
                             Acharya        and   Kulshekhar    Acharya     were<\/p>\n
                             performing Puja and collecting the return from<\/p>\n
                             the temple and other property of the temple turn<\/p>\n
                             by turn according to their mutual settlement;<\/p>\n<\/blockquote>\n
                         vi)that prior to the birth of Ex. A\/1 there was no<\/p>\n
                             document of Trust;\n<\/p><\/blockquote>\n
                         vii)that the temple was open to general public.<\/p><\/blockquote>\n<\/blockquote>\n
\n<\/blockquote>\n
                   From the trend of the cross-examination of these
\n RSA No. 1457 of 2006                  4<\/span><\/p>\n
            witnesses, the case of the respondents is that the temple was<\/p>\n
            created by their ancestors and they were the owners of the<\/p>\n
            temple and its properties.\n<\/p><\/blockquote>\n
                         Para No.39<\/p>\n
                         From the evidence on record, it is also established<\/p>\n
            that the defendants of Ghanshayam Dass and Kulshekhar Ji are<\/p>\n
            the Pujaris of the temple. They are in possession of the temple<\/p>\n
            building and the 2 shops through tenants. It is also evident that<\/p>\n
            they are performing the Puja in the temple and realising the rent<\/p>\n
            from 2 tenants and also receiving the Charhawa and the other<\/p>\n
            offerings from the temple according to their turns as settled in<\/p>\n
            between the successors of Ghanshayam Dass and Kulshekhar<\/p>\n
            Dass Ji. They certainly have Pujaris rights in the temple. They<\/p>\n
            never maintained any accounts nor did they render any<\/p>\n
            accounts to anybody. The petitioners never realized any rent of<\/p>\n
            the shops or collected the offerings made in the temple. The<\/p>\n
            Pujaris are managing the affairs of the temple and its properties.<\/p>\n
            The present petition was instituted on 4.7.1969. The trust deed<\/p>\n
            Ex. A\/1 took birth on 30.7.1979 i.e. during the pendency of<\/p>\n
            this petition. At the time of the institution of the petition there<\/p>\n
            was no trust deed in writing although a public trust of<\/p>\n
            charitable and religious nature had already been founded by<\/p>\n
            Sheonath Mal Ji and Sheoji Ram, the ancestors of the<\/p>\n
            petitioners and Kulshekhar and Ghanshayam Dass were Pujaris<\/p>\n
            o the temple of the trust. From the previous acts and conduct of<\/p>\n
            the parties, it is evident that neither Ghanshayam Dass or
\n RSA No. 1457 of 2006                  5<\/span><\/p>\n
            Kulshekhar nor their ancestors maintained or rendered any<\/p>\n
            accounts to anybody. The turns as contained in trust deed Ex.<\/p>\n
            A\/1 could provide cause of action on the date of the institution<\/p>\n
            of the present petition i.e. 4.7.1969 to claim rendition of<\/p>\n
            accounts from the respondents.          I am, therefore, of the<\/p>\n
            considered view that on the day of institution of the petition i.e.<\/p>\n
            4.7.1969 the petitioners had no cause of action against the<\/p>\n
            respondents for filing the petition and that being so the very<\/p>\n
            base i.e. the “cause of action” having been knocked out. I have<\/p>\n
            no other alternative except to dismiss the suit, although issues<\/p>\n
            No. 1 and 2 have been decided in favour of the petitioners.<\/p>\n<\/blockquote>\n
                         In view of my discussion under issue No. 3 of<\/p>\n
            Relief this fails and is hereby dismissed.”<\/p><\/blockquote>\n
            It was held that Trust was created in the year 1979 by the<\/p>\n
predecessor in interest during the pendency of the suit and on that basis of it<\/p>\n
was pleaded by the plaintiff-appellant that during the pendency of the<\/p>\n
previous litigation a Trust deed dated 30.7.1979 was created in the name<\/p>\n
and style of Shri Rang Nath Ji Mandir Trust and that the respondents started<\/p>\n
claiming themselves to be the trustees and grab the property of the Mandir.<\/p>\n
            Parties who were arrayed as defendant nos. 8, 9, 12, 13 and 15<\/p>\n
filed their joint written statement and admitted the claim by the plaintiffs-<\/p>\n
appellants in toto. Nand Kishore who was arrayed as proforma respondent<\/p>\n
no. 20 also submitted to the identical pleadings of defendant nos. 1 to 4. It<\/p>\n
was pleaded that temple was founded by Sheoji Ram and Sheonath Ji while<\/p>\n
Kulshekhar and Ghanshayam Dass were appointed as its Pujaris. They were<\/p>\n
entitled to receive the Chahrawas and hold the office of Pujaris. Plaintiff
\n RSA No. 1457 of 2006                   6<\/span><\/p>\n
Bansidhar was one of the decendants of Ghanshayam Dass Acharya while<\/p>\n
Shri Sheoram and Sheonath Ji were fore-fathers of defendants Gopi Ram,<\/p>\n
Shree Kishan and Lakshmi Niwas, trustees of the Trust who have dedicated<\/p>\n
the suit property in the name of Shri Rangnath Ji. The temple and four<\/p>\n
shops were constructed and a public,religious and charitable trust continued<\/p>\n
to exist. It was pleaded that the same was being managed by them as<\/p>\n
decendants of Sheoji Ram and Sheonath Ji and Gopi Ram. The filing of the<\/p>\n
earlier suit and findings therein were admitted. The acquisition of some of<\/p>\n
the property by the Improvement Trust was also admitted. It was next<\/p>\n
pleaded that the contesting defendants had filed a civil suit no.43 of 1997 by<\/p>\n
Gopi Ram and other trustees against Mange Ram for land measuring 3<\/p>\n
kanals 12 marlas it was decreed and it was held therein that the suit property<\/p>\n
belonged to the Idol and decendants of Kulshekhar and Ghanshayam Dass<\/p>\n
were only Pujaris and the plaintiff had no locus standi and was estopped<\/p>\n
from filing the suit.\n<\/p>\n
             Lastly, it was pleaded that neither the plaintiff nor the persons<\/p>\n
who were arrayed as proforma defendants were owners of the suit property.<\/p>\n
It was never built by the predecessor in interest of the appellant and that the<\/p>\n
gift deed by the owners of the property was in favour of the Mandir and not<\/p>\n
in favour of the individuals as has been claimed by the appellants. Both the<\/p>\n
parties went to trial on the following issues:-\n<\/p>\n
             1. Whether the plaintiff and proforma defendants No. 7 to 20<\/p>\n
                are the owners and in possession of the property in dispute?<\/p>\n
                OPP.\n<\/p><\/blockquote>\n
             2. Whether the trust constituted by defendants No. 1 to 5 is<\/p>\n
                illegal and has no concern with the property in dispute? OPP.
\n RSA No. 1457 of 2006                  7<\/span><\/p>\n<\/blockquote>\n
            3. Whether Sheo Raj, Sheoji Ram and Sheo Nath founded the<\/p>\n
               trust and built the temple, if so its effect? OPD.<\/p>\n<\/blockquote>\n
            4. Whether idol Rangnath Ji is owner of the property and the<\/p>\n
               same is being managed by the trustee? OPD.\n<\/p><\/blockquote>\n
            5. Whether suit is not maintainable in the present form? OPD.<\/p>\n<\/blockquote>\n
            6. Whether plaintiff is estopped from filing the present suit by<\/p>\n
               his act and conduct? OPD.\n<\/p><\/blockquote>\n
            7. Whether suit is bad for non-joinder of necessary parties?<\/p>\n
               OPD.\n<\/p><\/blockquote>\n
            8. Whether the suit is barred by the principle of resjudicata, as<\/p>\n
               alleged? OPD.\n<\/p><\/blockquote>\n
            9. Whether suit has not been properly valued for the purposes<\/p>\n
               of court fee and jurisdiction? OPD.\n<\/p><\/blockquote>\n
            10.Whether the plaintiff has no locus standi to bring the suit?<\/p>\n
               OPD.\n<\/p><\/blockquote>\n
            11.Relief.<\/p><\/blockquote>\n
            Both the Courts concluded that in the earlier suit the following<\/p>\n
findings were recorded:-\n<\/p>\n
            i) that Sheoji Ram and Sheonath Mal, the ancestors of the<\/p>\n
               petitioners are proved to be the authors of the trust;<\/p>\n<\/blockquote>\n
            ii) that the intention to create a trust is evident with certainty<\/p>\n
               from the acts and conduct of the founders in general and<\/p>\n
               from the judgment and decree Ex. A.5 and A.6 on the basis<\/p>\n
               whereby Gopi Ram petitioner had received the compensation<\/p>\n
               amount in capacity of his being a trustee;\n<\/p><\/blockquote>\n
            iii)that the purpose of the trust is also evident that the founders
\n RSA No. 1457 of 2006                  8<\/span><\/p>\n
               and their descendants were the followers God Rangnath Ji<\/p>\n
               and that they wanted to propagate the ideas of the said<\/p>\n
               religious thought and to provide a temple for general public<\/p>\n
               to meditate in the temple;\n<\/p><\/blockquote>\n
            iv)the property of the trust is very well specified which includes<\/p>\n
               a building of the temple, a Bagichi along with the rooms and<\/p>\n
               the Diggi, four shops and agricultural land measuring 26<\/p>\n
               Bighas 4 Biswas situated in the area of village Lohar,<\/p>\n
               Bhiwani.\n<\/p><\/blockquote>\n
            v) The beneficiaries of the trust are the public at large<\/p>\n
               it was also held that the trust in dispute is a public trust of<\/p>\n
               charitable and religious nature and the petitioners, who are<\/p>\n
               now the contesting defendants are the founders of the trust”<\/p><\/blockquote>\n
            It was thus concluded that the Public Charitable Trust<\/p>\n
continued to exist and that the plaintiffs-appellants had no right to claim<\/p>\n
property of the Trust. It was further held that the respondents were only the<\/p>\n
Pujaris and were using the Chahrawas and other offerings for the<\/p>\n
management of the Trust.\n<\/p>\n
            Both the Courts also concluded that the appellant was<\/p>\n
precluded by his own act and conduct as he had earlier filed the suit and the<\/p>\n
judgment and decree dated 31.7.98 was not specifically challenged.<\/p>\n
            The suit was accordingly dismissed by both the Courts below.<\/p>\n
            Learned counsel for the appellant while arguing before this<\/p>\n
Court in regular second appeal primarily raised a contention that the gift<\/p>\n
deed of the year 1859 was in the name of three persons i.e. Shri Ram Saran<\/p>\n
Dass, Ram Narain and Ram Parshad Acharya who were their predecessor in
\n RSA No. 1457 of 2006                  9<\/span><\/p>\n
interest and in view of the gift deed they became the owners of the property.<\/p>\n
A translated copy of the gift deed was also produced before this Court,<\/p>\n
which is taken on record. No other point was raised.<\/p>\n
             After hearing learned counsel for the appellants and perusing<\/p>\n
the impugned judgments and the gift deed, I am of the considered opinion<\/p>\n
that the contention raised by the learned counsel for the appellants is totally<\/p>\n
mis-placed. A perusal of the gift deed reveals that it was made in the name<\/p>\n
of Thakur Rang Ji Maharaj and not gifted to individuals as has been pleaded<\/p>\n
by the learned counsel for the appellant. The relevant extract of the gift<\/p>\n
deed is extracted hereunder:-\n<\/p>\n
                         “we, without pressure and with consent, with<\/p>\n
             conscious mind and health, without temptation, alurement for<\/p>\n
             constructing Pacca Well and Baag Tibari to Thakur Rang Ji<\/p>\n
             Maharaj and gifted to Ram Parshad, Ram Saran Dass, Ram<\/p>\n
             Narain son of Shri Krishan Dass Ji son of Shri Sukhdas ji<\/p>\n
             Brahmin, resident of Town Pundari, area Jind, siutated at Town<\/p>\n
             Bhiwani and Pujari Mandir Shri Rangnath Ji Maharaj.”<\/p><\/blockquote>\n
             It is clear therefore that the property was gifted to the Mandir<\/p>\n
and right since then it has continued to exist as a Public Charitable and<\/p>\n
Religious Institution for which the respondents who were Pujaris were<\/p>\n
performing the essentials. The trust deed was created subsequently in the<\/p>\n
year 1979.\n<\/p>\n
             In this view of the matter, the concurrent and consistent<\/p>\n
findings to the aforesaid effect as determined by both the Courts below as<\/p>\n
also the findings recorded in the prior suit, the impugned judgments cannot<\/p>\n
be said to be based on perverse findings.\n<\/p>\n
 RSA No. 1457 of 2006                10<\/span><\/p>\n
            No substantial question of law arises in the present appeal in<\/p>\n
view of the above and the findings being not perverse, hence, no interfernce<\/p>\n
is warranted in the present appeal and the same being devoid of any merit is<\/p>\n
hereby dismissed.\n<\/p>\n<\/p>\n
February 5 , 2009                            (Mahesh Grover)\nrekha                                           Judge\n <\/pre>\n","protected":false},"excerpt":{"rendered":"
Punjab-Haryana High Court Shree Niwas And Another vs Kanhiya Lal And Others on 5 February, 2009 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. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[8,28],"tags":[],"class_list":["post-141451","post","type-post","status-publish","format-standard","hentry","category-high-court","category-punjab-haryana-high-court"],"yoast_head":"\nShree Niwas And Another vs Kanhiya Lal And Others on 5 February, 2009 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/shree-niwas-and-another-vs-kanhiya-lal-and-others-on-5-february-2009\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Shree Niwas And Another vs Kanhiya Lal And Others on 5 February, 2009 - 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