Himachal Pradesh High Court
Reserved On : 30Th September vs Karam Singh (Deceased) on 27 December, 2024
Author: Virender Singh
Bench: Virender Singh
1 ( 2024:HHC:16951 )
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA
RSA No.526 of 2002
Reserved on : 30th September, 2024
Decided on : 27th December, 2024
Thakur Radha Krishan …..Appellant
Versus
Karam Singh (deceased)
through LRs & Others …..Respondents
Coram
The Hon’ble Mr. Justice Virender Singh, Judge.
Whether approved for reporting?1 Yes.
For the appellant : Mr. Bhupender Gupta, Senior
Advocate with Ms. Rinki
Kashmiri, Advocate.
For the respondents : Mr. Aman Sood, Advocate for
respondents No.1(a)(i) to 1(a)(iv)
and 2(b).
Mr. Dinesh Bhanot, Advocate
for respondents No. 3 to 5.
Mr. Mohinder Zharaick,
Additional Advocate General for
respondent No.6.
Mr. Vinay Mehta, Advocate for
respondent No.7.
Virender Singh, Judge.
Idol Thakur Radha Krishan, installed in
Thakurdwara, situated in Village Jangambagh, Muhal
Chambi, Tehsil Sunder Nagar, District Mandi, H.P., through
1
Whether the reporters of Local Papers may be allowed to see the judgment? Yes.
2 ( 2024:HHC:16951 )
Shri Dalip Kumar, has filed the present Regular Second
Appeal, under Section 100 of the Code of Civil Procedure
(hereinafter referred to as ‘the CPC‘), against the judgment
and decree dated 25.09.2002, passed by the learned District
Judge, Mandi, District Mandi H.P., (hereinafter referred to as
the ‘First Appellate Court’), in Civil Appeal Nos.79 of 1999,
80 of 1999, 81 of 1999 and 99 of 1999.
2. The appeals, referred to above, have been
preferred by the respondents, against the judgment and
decree dated 30.6.1999, passed by the learned Sub Judge 1 st
Class, Sundernagar, District Mandi, H.P., (hereinafter
referred to as the ‘trial Court’), in Civil Suit Nos.174/92,
208/97(92), titled as Thakur Radha Krishan versus Med
Ram and Others.
3. Vide judgment and decree dated 25.09.2002,
learned First Appellate Court has allowed the appeals,
preferred by the respondents, against the judgment and
decree dated 30.06.1999, and dismissed the suit filed by the
plaintiff, whereas, the learned trial Court has decreed the suit
filed by the plaintiff.
3 ( 2024:HHC:16951 )
4. For the sake of convenience, the parties to the
present lis are hereinafter referred to, in the same manner, as
were, referred to, by the learned trial Court.
5. Brief facts, leading to filing of the present appeal,
before this Court, as per record, may be summed up, as
under:
5.1. Idol Thakur Radha Krishan, through next friend
Shri Dalip Kumar had filed the suit for declaration, seeking
the following relief:
” It is therefore, respectfully prayed that
declaration that the plaintiff is owner in possession of
the property i.e. the temple and Dharamshala
standing on Khewat Khatauni No.199/306, Min,
Khasra No.33, described in the Jamabandi 1991 of
Mauja Chambi, Tehsil Sundenegar and the entries in
column No.4 of the Jamabandi in respect of the
ownership of the property in favour of defendants
No.6 are illegal, null and void and is also ownerin
possession of the suit land described as Khewat
No.105, Khatauni No.159, Khasra No.9,7,31 34, Kita
4, measuring 834 bighas described in the
Jamabandi 199091 of Raja Chambi/20, Tehsil
Sundernagar, Distt. Mandi (HP) and the entries of
ownership and possession in favour of defendants
No.1 and 2 are wrong illegal and void abinitio and
the alienation out of the suit land made by the
defendant llol in favour of defendants No.3,4 and s
vide Registered Sale Deed No.435, and 406, dated 8
71992 and Sale Deed No.479, dated: 1181992 in
favour of defendants 10.3, 4, and 5 respectively are
also wrong illegal and void and for permanent
perpetual injunction restraining the defendants Ho.1
to 5 from interferring in the ownership and possession
of the Plaintiffs in the suit land described as Khasra
No.3,7,31,34 in any manner whatsoever and from
alienating and changing its nature in any manner by
raising any structure or cutting and uprooting the
trees standing on the suit land or closing the gate, or
road approaching to the Thakurdwara and in the
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alternative for possession of the suit land a
consequential relief be passed in favour of the Plaintiff
and against the defendants, or any other relief, which
in the circumstances of the case, the Ld. Court deems
fit may kindly be granted in favour of the Plaintiff and
against the defendants, with costs, in the interest of
Justice.”
5.2. The aforesaid relief has been sought on the ground
that Deity Thakur Radha Krishanji, is the owner of the
property, described in Misal Haqiyat of First Settlement of
192122, as Khewat No.109, Khatauni No.227, Kita 9,
measuring 9 bighas, situated in Mauza Chambi (20), Tehsil
Sundernagar, District Mandi, H.P. (hereinafter referred to as
the suit land).
5.3. It is the specific case of the plaintiff that initially
the Thakurdwara was under the management of one Sawanu
son of Kedaru, Caste Brahmin. Said Sawanu Ram Pujari,
died in the year 193540 and the management was entrusted
to the then Rajguru Pandit Hari Dutt Shastri. After his death,
proforma defendant Raghu Ram was appointed as Pujari, who
was looking after the interest of Rajguru Pandit Hari Dutt of
Sundernagar. After the death of Rajguru Hari Dutt Shastri,
the then Deputy Commissioner, Mandi, on 20.04.1960, vide
File No.67, has decided the case of Muafi and entrusted the
management to defendant No.7. In this regard, mutation
No.937, dated 21.12.1960, has been entered and attested.
5 ( 2024:HHC:16951 )
5.4. It is the further case of the plaintiff that thereafter,
late Shri Lalit Sen, son of late Raja Lakshman Sen, who was
also an M.P., at that time and President of Temple Committee,
Narsingh Mandir, Purana Bazar and Suraj Kund,
Sundernagar1, without any title and interest, assumed the
power that he could alienate the property of the temple for the
welfare of the temple in favour of any other person and vide
resolution passed on 14.7.1962, decided to hand over the
entire land and houses of the plaintiff in favour of defendant
No.6, for the purpose of opening an Aturalaya (shelter home
for issueless persons). In this regard, Rapat Roznamcha
Wakyati vide Rapat Roznamcha No.31, dated 25 th September,
1962, was entered. In the said rapat, there was a specific
condition that ‘if, at any time, defendant No.6 removed the
said Aturalaya from the suit land or discontinuance of any
State institution at the suit property, then, in that eventuality
the suit property will be returned to the management of
defendant No.7’.
5.5. As per the plaintiff, on the basis of the said Rapat
Rojnamcha, mutation No.1025, was attested, in favour of
defendant No.6, which is void ab initio, as Shri Sunder Singh,
Secretary Temple Committee was legally not competent to
alienate the property of the plaintiff, in favour of defendant
6 ( 2024:HHC:16951 )
No.6. Hence, the said allocation in favour of defendant No.6,
is stated to be void ab initio.
5.6. It is the further case of the plaintiff that defendant
No.6, never opened any Aturyala nor abide by the condition
and the plaintiff continued to be the owner and possession of
the suit property and the proforma defendant No.8, has been
stated to be continued to act as ‘Pujari’ and manage the
property of the plaintiff. During the settlement proceedings,
defendant No.1, who, as per the stand taken by the plaintiff,
was Peon in the settlement, with the connivance of the
Revenue staff, got the entries of the tenants at Will on
payment of 1/4th share of the produce in his favour and his
brother defendant No.2, under defendant No.6, in the
Jamabandi for the year 196263. The said entries are stated
to be illegal and void and against the rules.
5.7. As per the further case of the plaintiff, during the
settlement operation, the entries, in respect of Khasra
No.1407, 1408, 1409, 1411, were converted into Khasra
No.33, measuring 1219 bighas, which were shown in the
ownership of defendant No.6 and in possession of ‘Ahele
Hannad’ and Khasra No.1406, was converted into Khasra
No.32, measuring 015 bighas, gair Mumkin Tiala and
7 ( 2024:HHC:16951 )
Khasra No.1369 was converted into New Khasra No.8,
measuring 11219 bighas and described as Gair Mumkin
Rasta. Khasra No.1398 was converted in to Khasra No.7,
Khasra No.1494 was converted into Khasra No.9, Khasra
No.1400 was converted into Khasra No.31 and Khasra
No.1413 was converted into Khasra No.34 and thus, the land,
according to the plaintiff, measuring 831 bigha, was wrongly
and illegally entered in the ownership of defendant No.6 and
in possession of defendants No.1 and 2 as gair marusi on
payment of land revenue Bushra Parta Malkan. The said
entries, in favour of defendants No.1, 2 and 6, are stated to be
illegal, null and void, as, according to the plaintiff, defendant
No.6, was not legally competent to create any tenancy, in
favour of defendants No.1 and 2, nor the defendants ever
cultivated the suit land.
5.8. According to the plaintiff, thereafter, defendants
No.1 and 2, by taking undue advantage of their fraudulent
entries, in the revenue records, applied for the acquisition of
proprietary rights, under Section 11 of H.P. Abolition of Big
Landed Estates and Land Reforms Act, 1953 on 19.6.1972
and thereafter, the Compensation Officer, quite, in violation of
the provisions of law and procedure, under the Act and Rules,
8 ( 2024:HHC:16951 )
illegally conferred the proprietary rights, on defendants No.1
and 2, allegedly on 17.7.1972 and granted the Patta on
17.8.1972, in favour of defendants No.1 and 2. Thereafter,
defendant No.1, has further alienated the suit property, in
favour of the defendants No.3, 4 and 5, by registered sale
deeds Nos.406 and 405, dated 8.7.1992 and No.479 dated
11.8.1992. The said transactions are stated to be wrong,
illegal and void and do not create any title or interest, in
favour of defendants No.3 to 5.
5.9. According to the plaintiff, the cause of action had
accrued to file the suit in the first week of October, 1992,
when defendant No.1 has closed the gate and approach road
to the Thakurdwara and as such, started interfering in the
rights of worship of the devotees of the plaintiff.
6. On the basis of the above facts, the plaintiff has
sought the relief, as claimed in the suit.
7. When put to notice, the suit has been contested
and resisted, by the defendants.
8. Defendant No.1, has filed the written statement,
by taking the preliminary objections that the suit is time
barred; the Civil Court has no jurisdiction to try the suit; the
plaintiff is not being represented by proper person; and the
9 ( 2024:HHC:16951 )
proprietary rights of the land has been granted by the Land
Reforms Officer under H.P. Abolition of Big Landed Estate
and Land Reforms Act and that order has become final. In
addition to this, plea of res judicata has also been taken by
alleging that the plaintiff cannot agitate the suit and also the
nonservice of notice under Section 80 CPC.
8.1. On merits, admitting the contents of para 1, the
suit has been contested on the ground that Bhawani Dutt
was managing the affairs of the temple and he is the person,
who had created tenancy in favour of defendants No.1 and 2
about 32 years ago. They have taken the plea that the
proprietary rights under Section 11 of the H.P. Abolition of
Big Landed Estate and Land Reforms Act, were conferred
upon them on 19.6.1972. Thereafter, they have become
exclusive owners of the suit land and continuously in
possession of the same. They have also taken the plea of
adverse possession in the alternative.
9. Defendants No.1 to 5 have also filed the written
statement, by taking the preliminary objections that the suit
is time barred; the Civil Court has no jurisdiction to try the
suit; and the plaintiff is not being represented by proper
persons.
10 ( 2024:HHC:16951 )
9.1. On merits, the factual position with regard to the
ownership of the Deity over the suit land has not been
disputed. However, it has been disputed that after the death
of Sawanu Ram, management was entrusted to Rajguru
Pandit Hari Dutt Shastri. According to defendants No.1 to 5,
Bhawani Dutt was managing the affairs of the temple. While
replying paragraph No.7, it has been pleaded that defendant
No.1 and 2 were tenants of the suit land on payment of rent
and the tenancy was created by late Shri Bhawani Dutt about
32 years ago. Rest of the contents of the plaint have been
denied by taking the plea that defendants No.3 to 5 are bona
fide purchasers for consideration.
10. Defendant No.6 has also filed separate written
statement by taking the preliminary objections that the suit
in the present form is not maintainable; the plaintiffs have got
no enforceable cause of action; the suit is bad for nonservice
of mandatory notice under Section 80 CPC; the Civil Court
has no jurisdiction to entertain and try the present suit; the
suit is bad for nonjoinder of necessary parties; and the suit
is not within limitation.
10.1. On merits, the factual position, as contained in
para 1 and 2 of the plaint, has been admitted. It has also
11 ( 2024:HHC:16951 )
been admitted that the management was entrusted to
defendant No.7, i.e., S.D.O. (Civil) Sundernagar, vide
mutation No.937 dated 21.12.1960.
10.2. According to the further stand of defendant No.6,
late Shri Lalit Sen being President of Temple Committee
Narsingh Mandir, Purana Bazar and Suraj Kund
Sundernagar had rightly alienated the entire suit land vide
rapat Rojnamcha No.31, dated 25.9.1962, in favour of
defendant No.6, for the welfare of the temple and General
Public.
10.3. Defendant No.6, has further asserted that
mutation No.1025, dated 10.6.1963, was rightly attested and
the then Secretary, Temple Committee Shri Sunder Singh has
acted in pursuance of rapat No.31 dated 25.9.1962.
10.4. As per the further stand of the defendant No.6, the
suit land is owned and possessed by the State of Himachal
Pradesh. Supporting the conferment of ownership, in favour
of defendants No.1 and 2, it has been pleaded that the same
has rightly been done by the Settlement Officer.
10.5. In nut shell, defendant No.6, has also supported
the case of defendants No.1 and 2, qua the fact that they were
tenants over the suit land and were cultivating the same.
12 ( 2024:HHC:16951 )
11. Defendant No.7 was proceeded against exparte on
1.6.1993.
12. Defendant No.8 has also filed separate written
statement by admitting the claim of the plaintiff.
13. On the basis of the above facts, the defendants
have prayed for dismissal of the suit.
14. In the replication, the plaintiff has taken the plea
that he has never stated in the plaint that Bhawani Dutt was
managing the affairs of the temple. According to the plaintiff,
Bhawani Dutt, had no locus standi to look after the affairs of
the temple, however, one Shri Achhru Ram remained the
President of the Temple Committee. The preliminary
objections have also been denied.
15. From the pleadings of the parties, the following
preliminary issues were framed, by the learned trial Court,
vide order dated 07.10.1993:
1. Whether this Court has jurisdiction to try and
entertain the suit? O.P. Parties.
2. Relief.
16. Vide Order dated 10.11.1993, the plaint was
ordered to be returned to the plaintiff, under Order VII, Rule
10 CPC, with a direction to present the same before the
13 ( 2024:HHC:16951 )
competent authority, as provided under the H.P. Abolition of
Big Landed Estate and Land Reforms Act.
17. The said order was assailed by the plaintiff before
the Court of learned District Judge, Mandi, by way of appeal,
which was allowed vide judgment dated 29.9.1997, by
holding that the tenancy was mixed question of law and fact
and ought not to have been dealt with at preliminary stage.
The suit was remanded back for disposal, in accordance with
law.
18. Subsequently, from the pleadings of the parties,
the following issues were framed, by the learned trial Court,
vide orders dated 18.09.1998, 14.10.1998, 30.11.1998 and
16.12.1998:
1. Whether the plaintiffs are owner in possession of
the property in dispute (as detailed in the plaint)
as alleged? OPP
2. Whether the revenue entries showing the
ownership of the property in favour of the
defendant No.6 is illegal, null and void as
alleged? OPP
3. Whether the revenue entries showing the
ownership and possession of the property in
favour of the defendants No.1 and 2 are wrong,
illegal and void as alleged? OPP
4. Whether alienation of the suit land in favour of
the defendants No. 3 to 5 by the defendant No.1
on the basis of sale deeds No.405 and 406 dated
8.7.1992 and Sale deed No.479/92 dated
11.8.1992 is wrong, illegal and void as alleged?
OPP
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5. Whether the defendants No.1 to 5 interfere in the
property in dispute in an illegal manner as
alleged? OPP
6. Whether the defendants No.1 to 5 intend to
alienate the suit land and want to change its
nature by raising construction as alleged? OPP
7. Whether the suit is barred by limitation? OPD
8. Whether the suit is not being represented by
proper persons as alleged? OPD
9. Whether the plaintiffs have no cause of action to
file the present suit? OPD
10. Whether the suit is bad for nonjoinder of
necessary parties? OPD
11. Whether the suit is bad for noncompliance of the
provisions of Section 80 C.P.C.? OPD
11A Whether the tenancy was created qua the suit
land in favour of the defendants No.1 and 2 by
late Bhawani Dutt about 32 years ago, if so its
effect? OPD
11B. Whether the suit is barred by Principle res
judicata as alleged? OPD
11C Whether the defendants No.1 and 2 have become
owners of the suit land by way of adverse
possession, as alleged? OPD
11D Whether the defendants No.3 to 5 are bonafide
purchaser of the suit land as alleged? OPD
12. Relief.
19. Thereafter, the parties to the lis were directed to
adduce evidence.
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20. After the closure of the evidence, upon hearing the
learned counsel for the parties, the learned trial Court has
decreed the suit of the plaintiff, vide judgment and decree, as
referred to above.
21. Aggrieved from the said judgment and decree,
defendants No.1 and 2 had filed Civil appeal No.79/1999,
whereas, defendant No.3, had filed Civil Appeal No.80/1999,
defendant No.5, had filed Civil Appeal No.81/1999, defendant
No.4 had filed Civil Appeal No.99 of 1999, before the learned
First Appellate Court, assailing the judgment and decree
passed by the learned trial Court.
22. Learned First Appellate Court has allowed all the
appeals, preferred by the defendants and the suit of the
plaintiff was ordered to be dismissed. Hence, the present
appeal.
23. Feeling aggrieved by the said judgment and
decree, by virtue of which, the suit was ordered to be
dismissed, the present Regular Second Appeal, has been
preferred by the plaintiff before this Court, on the ground that
the pleadings have been misread and the controversy involved
has been misunderstood. Learned First Appellate Court,
according to the appellant, has not properly formulated point
16 ( 2024:HHC:16951 )
No.1, as the point, so formulated, shows the preconceived
mind of the learned First Appellate Court.
24. While deciding appeals, according to the appellant,
the learned First Appellate Court has not taken into
consideration the findings returned by the learned trial Court
on various issues. The learned First Appellate Court has
wrongly held that Pandit Hari Nand Shastri and Pandit
Krishna Nand were competent to create tenancy of the Temple
property, in favour of defendants No.1 and 2. Learned First
Appellate Court, according to the appellant, has wrongly held
that the tenancy in favour of defendants No.1 and 2 was
created more than 40 years ago, as such, strict proof of
creation of said tenancy could not be insisted upon.
25. The findings of learned First Appellate Court have
also been assailed on the ground that the learned First
Appellate Court has wrongly held that the jurisdiction of the
Civil Court is barred. According to the appellant, the learned
First Appellate Court, has wrongly held that the conferment of
propitiatory rights upon defendants No.1 and 2 has never
been assailed by the State of Himachal Pradesh, as such, the
said order cannot be allowed to be assailed after lapse of so
many years.
17 ( 2024:HHC:16951 )
26. Learned First Appellate Court, according to the
appellant, has wrongly held that defendants No.3 to 5 are
bona fide purchasers of the suit land.
27. On the basis of the above grounds of appeal, a
prayer has been made to allow the appeal by setting aside the
judgment and decree passed by the learned First Appellate
Court by restoring that of the learned trial Court.
28. The appeal has been admitted, on the following
substantial questions of law, by this Court, vide order dated
5.9.2008, which was modified on 24.2.2020:
“1. Whether the lower appellate court has erred in
applying the ratio laid down by the Full Bench of
this Court in Chuhniya Devi v. Jindu Ram in
coming to the conclusion that civil court has no
jurisdiction in the matter?
2. Whether the lower appellate court has
misunderstood and misapplied the provisions of
Transfer of Property Act in holding defendants
No.3 to 5 to be bona fide purchaser for value
without notice?
3. Whether the lower appellate court has committed
a grave illegality in not taking into consideration
the additional evidence which was permitted by
it to be led?
4. Whether the learned first appellate court has
erred in holding the suit of the plaintiff/appellant
to be barred by time?
29. Plaintiff is before this Court in Regular Second
Appeal. Hon’ble Apex Court in Ishwar Dass Jain (dead)
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through LRs Versus Sohan Lal (Dead) by LRs, (2000) 1
Supreme Court Cases 434, has elaborately discussed the
scope of interference by the High Court in second appeal.
Hon’ble Apex Court, in the above case, has formulated three
situations, in which, the findings of the first appellate Court
can be interfered with. Relevant portion of the judgment
reads, as under:
“10. Now under Section 100 CPC, after the 1976
Amendment, it is essential for the High Court to
formulate a substantial question of law and it is
not permissible to reverse the judgment of the first
appellate court without doing so.
11. There are two situations in which interference
with findings of fact is permissible. The first one is
when material or relevant evidence is not
considered which, if considered would have led to
an opposite conclusion. This principle has been
laid down in a series of judgments of this Court in
relation to Section 100 CPC after the 1976
Amendment. In Dilbagrai Punjabi v. Sharad
Chandral while dealing with a second appeal of
1978 decided by the Madhya Pradesh High Court
on 2081981, L.M. Sharma, J. (as he then was)
observed that:
“The court (the first appellate court) is
under a duty to examine the entire relevant
evidence on record and if it refuses to
consider important evidence having direct
bearing on the disputed issue and the error
which arises is of a magnitude that it gives
birth to a substantial question of law. the
High Court is fully authorised to set aside
the finding. This is the situation in the
present case.”
In that case, an admission by the defendant
tenant in the reply notice in regard to the plaintiff’s
19 ( 2024:HHC:16951 )
title and the description of the plaintiff as “owner”
of the property signed by the defendant were not
considered by the first appellate court while
holding that the plaintiff had not proved his title.
The High Court interfered with the finding on the
ground of nonconsideration of vital evidence and
this Court affirmed the said decision. That was
upheld. In Jagdish Singh v. Natthu Singh with
reference to a second appeal of 1978 disposed of
on 541991, Venkatachaliah, J. (as he then was)
held: (SCC p. 652, para 10)
“….where the findings by the court of facts
is vitiated by non consideration of relevant
evidence or by an essentially erroneous
approach to the matter, the High Court is not
precluded from recording proper findings.”
Again in Sundra Naicka Vadiyar v. Ramaswami
Ayyar it was held that where certain vital
documents for deciding the question of possession
were ignoredsuch as a compromise, an order of
the Revenue Courtreliance on oral evidence was
unjustified. In yet another case in Mehrunnisa v.
Visham Kumari arising out of second appeal of
1988 decided on 15.1.1996, it was held by
Venkataswami, J. that a finding arrived at by
ignoring the second notice issued by the landlady
and without noticing that the suit was not based
on earlier notices, was vitiated and the High Court
could interfere with such a finding. This was in
second appeal of 1988 decided on 15.1.1996.
12. The second situation in which interference with
findings of fact is permissible is where a finding
has been arrived at by the appellate court by
placing reliance on inadmissible evidence which if
it was omitted, an opposite conclusion was
possible. In Sri Chand Gupta v. Gulzar Singh it
was held that the High Court was right in
interfering in second appeal where the lower
appellate court relied upon an admission of a third
party treating it as binding on the defendant. The
admission was inadmissible as against the
defendant. This was also a second appeal of 1981
disposed of on 24.9.1985.
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13. In either of the above situations, a substantial
question of law can arise. The substantial question
of law that arises for consideration in this appeal
is:
“Whether the courts below had failed to
consider vital pieces of evidence and
whether the courts relied upon inadmissible
evidence while arriving at the conclusion that
the mortgage was sham and that there was
no relationship between the plaintiff and the
defendant as mortgagor and mortgagee but
the real relationship was as landlord and
tenant?”
30. During the course of arguments, Mr. Aman Sood,
Advocate appearing for respondents No.1(a)(i) to 1(a)(iv) and
2(b), has fairly conceded that the judgment of the Full Bench
of this Court, in Chuhniya Devi vs. Jindu Ram, 1991 (1)
Sim.L.C.223 is not applicable to the facts and circumstances
of the present case. As such, substantial question of law
No.1, is decided against defendants No.1 and 2.
31. In this case, learned counsel appearing for the
respondents has raised the objections that the present single
appeal against the judgment and decree dated 25.09.2002,
passed by the learned First Appellate Court is not
maintainable, as, vide judgment and decree, dated
25.09.2002, the learned First Appellate Court has decided
four appeals, bearing Civil Appeal Nos.79, 80, 81 and 99 of
1999.
21 ( 2024:HHC:16951 )
32. Per contra, learned counsel appearing for the
appellant has pointed out that these four appeals were filed
by the defendants, against the judgment and decree dated
30.06.1999, passed by the learned trial Court, by virtue of
which, the suit of the plaintiff was ordered to be decreed and
by way of common judgment and decree dated 25.09.2002,
the suit of the plaintiff was ordered to be dismissed. As such,
it has been prayed that the present appeal is maintainable.
33. In this case, learned counsel for the appellant has
relied upon the decision of Hon’ble Supreme Court in
Narhari & Others versus Shanker & Others, AIR 1953
Supreme Court 419. Relevant paragraphs 3 and 4 of the
judgment, are reproduced, as under:
3. Notwithstanding, this ruling of the Judicial
Committee of the State, the High Court, in several
cases, i.e., Nandlal v. Mohiuddin Ali Khan,
Nizamuddin v. Chatur Bhuj, Gayajee Pant v.
Habibuddin(3), and Jagannath v. Sonajee(4) has
held that when the suit is one and two appeals
arise out of the same suit, it is not necessary to
file two separate appeals.
4. In the judgment of the High Court, though
reference is given to some of these decisions, it is
merely mentioned that the appellant relies on
these decisions. The learned Judges perhaps
thought that in the presence of the Hyderabad
Judicial Committee decision in Jethmal v. Ranglal
they need not comment on these decisions at all.
There is also a later decision of the Judicial
Committee of the State in Bansilal v. Mohanlal,
where the well known and exhaustive authority
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of the Lahore High Court in Mst. Lachmi v. Mst.
Bhuli was followed. In the Lahore case, there
were two cross suits about the same subject
matter, filed simultane ously between the same
parties, whereas in the present case, there was
only one suit and one judgment was given by the
trial court and even in the first appeal to the
Sadar Ada lat, there was only one judgment, in
spite of there being two appeals by the two sets
of defendants. The plaintiffs in their appeal to
the High Court have impleaded all the
defendants as respondents and their prayer
covers both the appeals and they have paid
consolidated courtfee for the whole suit. It is now
well settled that where there has been one trial,
one finding, and one decision, there need not be
two appeals even though two decrees may have
been drawn up. As has been observed by Tek
Chand J. in his learned judgment in Mst. Lachmi
v. Mst. Bhuli mentioned above, the determining
factor is not the decree but the matter in
controversy. As he puts it later in his judgment,
the estoppel is not created by the decree but it
can only be created by the judgment. The
question of res judicata arises only when there
are two suits. Even when there are two suits, it
has been held that a decision given
simultaneously cannot be a decision in the former
suit. When there is only one suit, the question of
res judicata does not arise at all and in the
present case, both the decrees are in the same
case and based on the same judgment, and the
matter decided concerns the entire suit. As such,
there is no question of the application of the
principle of res judicata. The same judgment
cannot remain effective just because it was ap
pealed against with a different number or a copy
of it was attached to a different appeal. The two
decrees in sub stance are one. Besides, the High
Court was wrong in not giving to the appellants
the benefit of section 5 of the Limitation Act
because there was conflict of decisions regarding
this question not only in the High Court of the
State but also among the different High Courts in
India.
(Self emphasis supplied)
23 ( 2024:HHC:16951 )
34. If the facts and circumstances of the present case
are seen in the light of the above decision, there was no legal
necessity for the appellants to file separate appeals, as by way
of judgment and decree dated 25.09.2002, the learned First
Appellate Court has allowed four appeals, filed by the
defendants and the suit of the plaintiff was ordered to be
dismissed.
35. Being guided by the principles of law, as,
enumerated by the Hon’ble Apex Court, in Ishwar Dass
Jain’s case (supra), this Court would now proceed further to
decide the remaining substantial questions of law, as
formulated by this Court.
36. The suit has been filed by the plaintiff, i.e., Idol
Thakur Radha Krishan, situated in Village Jangambagh,
Muhal Chambi, Tehsil Sundernagar, District Mandi, H.P. The
said suit has been filed through its devotee. The factual
position, as, pleaded in para 1 of the plaint, with regard to the
ownership of the suit land, by the Deity Thakur Radha
Krishan, has not been disputed, by the defendants, in the
written statement. Moreover, the respondents/defendnts are
not under any disability.
24 ( 2024:HHC:16951 )
37. The fact, which has been admitted, need not be
proved by the plaintiff. In the revenue record, Ex.P1/A,
which is Misal Haqiyat, the ownership of the suit land has
been shown in the name of Mandir Thakurdwara Jangambag
Bahatmam (under the management) Sawanu son of Kedaru
and in the column of possession Pujari has been shown.
From Ex.P1/A, as well as, from the admission of the
defendants, dedication of the property, in the name of Idol
stood proved.
38. From the above mentioned revenue record, one
thing is clear that the property, which has been recorded, in
the ownership of Idol Radha Krishan is a public endowment,
as, the Hon’ble Apex Court in Ram Saroop Dass Ji versus
S.P. Sahi, AIR 1959 Supreme Court 951, has set the
parameters to determine whether the trust is public or
private. Relevant paragraph of the judgment, is reproduced,
as under:
” The essential distinction in Hindu Law
between religious endowments which are public
and those which are private is, that in a public
trust the beneficial interest is vested in an
uncertain and fluctuating body of personseither
the public at large or some considerable portion of
it answering a particular description; in a private
trust the beneficiaries are definite and ascertained
individuals or who within a definite time can be
definitely ascertained. The fact that the uncertain
25 ( 2024:HHC:16951 )
and fluctuating body of persons is a section of the
public following a particular religious faith or is
only a sect of persons of a certain religious
persuations would not make any difference in the
matter and would not make the trust a private
trust.”
39. Admittedly, it is not the case of the plaintiff that
the temple is for a particular community or for particular
family. When every devotee can come and perform pooja,
then there is no legal hesitation for this Court to hold that the
temple is a public trust.
40. The endowment is a concept of pure Hindu Legal
System, which is similar to the term ‘trust’, which has been
imported from English system. However, in our country, the
concept of endowment has more respectable origin. When,
the property has been transferred/dedicated in the name of
Idol, then, the endowment has been created.
41. In order to create trust or endowment, for religious
and charitable purposes, there should be ‘Sankalp’ (intention)
or ‘Samarpan’ (dedication). Hon’ble Apex Court in
Ramchandra Shukla versus Mahadeoji & Others, AIR
1970 Supreme Court, 458, has elaborately discussed this
principle. Relevant paragraph 16 of the judgment, is
reproduced, as under:
26 ( 2024:HHC:16951 )
“16. A dedication of property for a religious or a
charitable purpose can according Hindu law, be
validly made orally and no to create an endowment
except where it is created by a will. It can be made
by a gift inter vivo or by a bequest or by a ceremonial
or relinquishment. An appropriation of property for
specific religious or charitable purposes is all that is
necessary for a valid dedication. As stated by the
Privy Council in Vidyavaruthi v. Balusami Ayyar(2), a
trust in the sense in which it is understood in English
law is unknown in the Hindu system. Hindu piety
found expression in gifts to idols, to religious
institutions and for all purposes considered
meritorious in the Hindu social and religious system.
Therefore, although Courts in India have for a long
time adopted the technical meaning of charitable
trusts and charitable purposes which the Courts in
England have placed upon the term ‘charity’ in the
Statute of Elizabeth, and therefore, all purposes
which according to English law are charitable will be
charitable under Hindu law, the Hindu concept of
charity is so comprehensive that there are other
purposes in addition which are recognised as
charitable purposes. Hence, what are purely religious
purposes and what religious purposes will be
charitable purposes must be decided according to
Hindu notions and Hindu law.
(self emphasis supplied)
42. From the document Ex.P1/A, both the
ingredients stood proved, as property has been transferred/
dedicated, in the name of Idol Thakur Radha Krishan and the
then owner of the suit land had divested himself from the
ownership of the same.
43. Even otherwise, the Privy Council in Lala Hem
Chand versus Pearey Lal & Others, Vol.XLV-1943 PLR 36,
has held that no writing is necessary to create an endowment,
except, it is so created by a Will. Relevant paragraphs of the
judgment, are reproduced, as under:
27 ( 2024:HHC:16951 )
“Adverse possession having begun in the manner
indicated above, the’ next question is whether it has
been proved that the property was dedicated and that
it was held in adverse possession by Lala Janaki Das
and Ramchand for the statutory period. It may be
mentioned, as argument referred to it, that the
absence of a deed in this case creating the trust
cannot invalidate the endowment, for no writing is
necessary to create an endowment, except where the
endowment is created by a will, in which case the will
must be in writing and attested by at least two
witnesses, if the case is governed by the Indian
Succession Act, Section 57.
As stated already, the Subordinate Judge has found
specifically that there is sufficient material on the
record to show that the house in question has been
used for public and charitable purposes from 1909
1931.”
(self emphasis supplied)
44. From the admission of the defendants, as well as,
from the revenue record, creation of endowment stood proved.
The validity of the endowment has not been challenged by the
defendants, as, no counter claim has been filed, challenging
the ownership of idol over the suit land. As such, there was
no occasion for the plaintiff to lead evidence to prove the
creation of endowment/trust, in the name of Deity and there
is presumption of valid endowment, once it has been admitted
to be created.
45. The next question, which arises for determination,
before this Court, is whether Shri Lalit Sen, who, as per the
pleadings, was MP, at the relevant time, and was President,
Temple Committee, could transfer the property of Idol to
28 ( 2024:HHC:16951 )
Government, for the purpose of opening an Aturalya (Old Age
Home).
46. Privy Council, in Sunder Singh Mallah Singh
Sanatan Dharam High School Trust Indaura versus
Managing Committee Sunder Singh Mallah Singh Rajput
High School Indaura & Others, AIR 1938 Privy Council
73, has held that once a valid endowment is created, it
cannot be revoked. Relevant paragraph of the judgment is
reproduced as under:
“Issues Nos. 4 and 6 are conveniently taken together.
The first question is whether the school buildings and
the land attached to them, as they stood at the time of
the registration of the association, became irrevocably
vested in the managing committee. The High Court
state :
It is not disputed that for the foundation of a
charitable endowment by a. Hindu in this province no
writing is required. What is necessary is that the
purpose be clearly specified and that the property
intended for the endowment should be set apart as
dedicated to that purpose. It is necessary that the
donor should divest himself of the property. Whether
he has done so is to be determined by his subsequent
acts and conduct. All these propositions are well
established. It is not disputed that a valid endowment
once created cannot be revoked by the donor.
Their Lordships agree with this statement, except that
the evidence of divestiture may be contemporaneous,
as in this case, and, in such a case, the subsequent
acts and conduct of the donor are irrelevant and
cannot reinvest him. Their Lordships agree with the
High Court that the Subordinate Judge wrongly laid
stress on the subsequent alleged neglect of their
duties by members of the committee. The appellants
sought to maintain that the propositions were qualified
in the present case by some customary law; but, if so,
29 ( 2024:HHC:16951 )the appellants were bound to plead it and put it in
issue, which has not been done. In the opinion of their
Lordships, Rule 4 of the rules and regulations, to
which Mallah Singh was a party, taken along with
Sections 5 and 16 of the Act of 1860, was sufficient to
vest the; buildings of the school and the attached
lands, as they then existed, in the committee. The
Subordinate Judge himself has found that the
committee appointed its officebearers ” and the
management of the school was made over to them.” It
must be remembered that the Indian Trusts Act of
1882 does not apply to charitable endowments. Their
Lordships are therefore of opinion, in agreement with
the High Court, that the school buildings and attached
lands were irrevocably dedicated by Mallah Singh at
the time of the registration of the association, and,
further, that any subsequent alteration of these
buildings or additions to them, must be held to have
accrued to the original dedication.”
(self emphasis supplied)
47. The action of Mr. Lalit Sen, son of Raja Lakshman
Sen, in passing the Resolution dated 14.7.1962, by virtue of
which, the suit land was handed over to defendant No.6, was
void ab initio, as at the relevant time i.e. on 14.07.1962, he
was not the owner of the property and the same was owned
by Deity, as such, he was not competent to do so.
48. As such, the findings of the learned First Appellate
Court, as contained, in para 38 of the judgment, are not
sustainable in the eyes of law, as, after dedicating the
property in the name of idol, no one, be it Lalit Sen, or any
other person, including its Manager, was competent to
transfer the suit land in favour of defendant No.6.
30 ( 2024:HHC:16951 )
49. Even the act of the then Deputy Commissioner,
Mandi, dated 20.7.1960, by virtue of which, the management
of the suit land was entrusted to defendant No.7, is not legal,
as, an Idol is juristic person and can hold the property.
Merely, the management has been entrusted to defendant
No.7, does not divest the Idol from its ownership right over
the suit land.
50. Hindu Idol is acknowledged to be a juristic person,
capable of owning, acquiring and holding property and
vindicating its legal right. This has been held by the Hon’ble
Privy Council in Pramatha Nath Mullick versus
Pradyumna Kumar Mullick & Others, AIR 1925 Privy
Council 139. Relevant paragraph of the judgment is
reproduced as under:
” One of the questions emerging at this point is
as to the nature of such an idol, and the services due
thereto. A Hindu idol is, according to long established
authority, founded upon the religious customs of the
Hindus, and the recognition thereof by Courts of law,
a “juristic entity.” It has a juridical status with the
power of suing and being sued. Its interests are
attended to by the person who has the deity in his
charge and who is in law its manager with all the
powers which would, in such circumstances, on
analogy, be given to the manager of the estate of an
infant heir, It is unnecessary to quote the authorities;
for this doctrine, thus simply stated, is firmly
established.
A useful narrative of the concrete realities of the
position is to be found in the judgment of Mukerji J. in
Rambrahma Chatterjee v. Kedar Nath Banerjee (1922)
36 C.L.J. 478:
31 ( 2024:HHC:16951 )
“We need not describe here in detail the normal
type of continued worship of a consecrated
image, the sweeping of the temple, the process
of smearing, the removal of the previous day’s
offerings of (lowers, the presentation of fresh
flowers, the respectful oblation of rice with
flowers and water, and other like practices. It is
sufficient to state that the deity is, in short,
conceived as a living being and is treated in the
same way as the master of the house would be
treated by his humble servant. The daily routine
of life is gone through with minute accuracy; the
vivified image is regaled with the necessaries
and luxuries of life indue succession, oven to the
changing of clothes, the offering of cooked and
uncooked food, and the retirement to rest.”
The person founding a deity and becoming
responsible for these duties is de facto and in Common
parlance called Shebait. This responsibility is, of
course, maintained by a pious Hindu, either by the
personal performance of the religious rites oras in the
case of Sudras, to which caste the parties belongedby
the employment of a Brahmin priest to do so on his
behalf. Or the founder, any time before his death or
his successor likewise, may confer the office of
Shebait on another.”
51. Since, the Idol can not use of the property, as
such, the same is being used by its devotees. In other words,
worshipers are beneficiary in spiritual sense. As such, the
beneficiary can represent the Idol in a suit, which has been
done in the present case. The person, through whom, the
present suit has been filed, is not going to get any benefit, by
filing the present suit, as, the suit has been filed for the
benefit of Idol Thakur Radha Krishan.
52. If the facts and circumstances of the present case
is seen in the light of the decision of Hon’ble Supreme Court
32 ( 2024:HHC:16951 )
in Bishwanath & Another versus Thakur Radha Ballabhji
& Others, AIR 1967 Supreme Court 1044, then, this Court
has no hesitation to hold that the suit filed by the Idol,
through next friend, is perfectly maintainable. Relevant
paragraph 7 of the judgment, is reproduced, as under:
“7. It is settled law that to invoke s. 92 of the Code
of Civil Procedure, 3 conditions have to be satisfied,
namely, (i) the trust is created for public purposes of a
a charitable or religious nature;, (ii) there was a
breach of trust or a direction of court is necessary in
the administration of such a trust; and (iii) the relief
claimed ls one or other of the reliefs enumerated
therein. If any of the 3 conditions is not satisfied, the
suit falls outside the scope of the said section. A suit
by an idol for a declaration of its title to property and
for possession of the same from the defendant, who is
in possession thereof under a void alienation, is not
one of the reliefs found in s. 92 of the Code of Civil
Procedure. That a suit for declaration that a property
belongs to a trust is held to fall outside the scope of s.
92 of the Code of Civil Procedure by the Privy Council
in Abdul Rahim v. Barkat Ali and by this Court in
Mahant Pragdasji Guru Bhagwandasji v. Patel
Ishwarlalbhai Narsibhai on the ground that a relief for
declaration is not one of the reliefs enumerated in s.
92 of the Code of Civil Procedure. So too, for, the
same reason a suit for a declaration that certain
properties belong to a trust and for possession thereof
from the alienee has also been held to be not covered
by the provisions of s. 92 of the Code of Civil
Procedure: See Mukhda Mannudas Bairagi v. Chagan
Kisan Bhawasar. Other decisions have reached the
same result on I a different ground, namely, that such
a suit is one for the enforcement of a private right. It
was held that a suit by an idol as, a juristic person
against persons who interfered unlawfully with the
property of the idol was a suit for enforcement of its
private right and was, therefore, not a suit to which s.
92 of the code of Civil Procedure applied: see Darshon
Lal v. Shibji MaharaJ Birajman ; and Madhavrao
Anandrao Raste v. Shri Omkareshvar Ghat. The
present suit is filed by the idol for possession of its
property from the person who is in illegal possession
thereof and, therefore, it is a suit by the idol to enforce
33 ( 2024:HHC:16951 )
its private right. The suit also is for. a declaration of
the plaintiffs title and for possession thereof and is,
therefore, not a suit for one of the reliefs mentioned in
s. 92 of the Code of Civil Procedure. In either view,
this is a suit outside the purview of s. 92 of the said
Code and, therefore, the said section is not it bar to its
maintainability.”
(self emphasis supplied)
53. In view of the discussion made above, one thing is
crystal clear, in this case, that the Deity was ownerin
possession of the suit property and as discussed above, Deity
works through human agency. The management of the
property of the Deity is to be done by the human agency and
the management of the plaintiffDeity, as well as, Shri Lalit
Sen, President of the Management of the Committee, has no
right to transfer the land of the Deity or divest the Deity from
its property. If there was any legal necessity for doing so, the
onus is upon the defendants to plead and prove those facts,
which they have not pleaded in the written statement.
54. By passing the Resolution, the Deity cannot be
divested from its property, as, the property can only be
transferred, by way of the decree of the Court or under the
provisions of Transfer of Property Act.
55. Even otherwise, it is the general principle that the
property of a Hindu Deity is inalienable. The management of
34 ( 2024:HHC:16951 )
the Deity’s property is like the management of the property of
infant.
56. In this case, the onus was upon the defendants to
prove that there was any legal necessity for the management
to transfer the land, in favour of defendant No.6State.
Neither such fact has been pleaded nor any evidence has
been adduced. In the absence of the pleadings and evidence,
no inference with regard to the alleged legal necessity can be
drawn. While holding so, the view of this Court is being
guided by the decision of Punjab and Haryana High Court, in
Shromani Gurdwara Parbandhak Committee Amritsar
versus Sewa Singh, 1973, Cur. L.J. 463. Relevant
paragraphs 10 and 11 of the judgment, are reproduced, as
under:
10. Reliance for this was placed by the learned
Judges on the Privy Council ruling in Vidya
Varuthi Thirha Swamigal v. Baluswami Ayyar
and others, AIR 1922 P. C. 123. Attention is also
invited to para 415 of Mulla’s Hindu Law, 13th
Edition, where it has been stated
“Nor can he (shebait), except for legal
necessity, grant a permanent lease of
debutter property, though he may create
proper derivative tenures and estates
conformable to usage.” A number of
authorities have been mentioned by the
learned author in support of this
proposition.
35 ( 2024:HHC:16951 )
11. Reference may also be made to Para 90 of
Rattigan’s Digest of Customary Law, 14th Edition,
where it is said “Except for necessary purposes,
no property belonging to a religious institution can
be permanently alienated”.
57. In view of the discussion made above, when the
property of the Deity cannot be transferred, in favour of
respondent No.6, by respondent No.7 or Lalit Sen, then, the
question of transfer of title, in favour of defendant No.6, does
not arise.
58. Interestingly, the alleged transfer, in favour of
defendant No.6 (State), was made, by passing the resolution.
The title of the property of the Deity cannot be transferred,
merely, on the basis of passing of the resolution.
59. As such, this Court has no hesitation to hold that
the change in the revenue record, merely, on the basis of the
resolution, was simply paper transaction and does not confer
any title in favour of State Government.
60. The proceedings before the Compensation Officer
are also held to be void ab initio. When, the title of the suit
land has not vested, in the State Government, then, on the
basis of the alleged tenancy, in favour of defendants No.1 and
2, the proceedings have no bearing upon the rights of the
Deityplaintiff.
36 ( 2024:HHC:16951 )
61. So far as the findings of the learned First Appellate
Court, qua the fact that transfer of land, in favour of
defendants No.3 to 5, has been proved and they have been
held to be bona fide purchasers for value, without notice, are
concerned, the same have been assailed before this Court.
62. Since, the onus was upon defendants No.3 to 5, to
plead and prove the fact that they were the bona fide
purchaser for consideration and without notice, in this
regard, if the pleadings of the defendants, in the written
statement, are seen, then, without hesitation, this Court can
hold that the said plea is not available to them, as, in the
written statement, which has been filed by defendants No.1 to
5, on 1.6.1993, they have simply pleaded that they had
purchased the suit land after making the due inquiry.
63. Interestingly, in the written statement, which has
been filed on 28.10.1998 and placed on record of learned trial
Court, at pages 35 and 36, the defendants have taken the
plea of adverse possession. Relevant paragraph 7 of the
written statement, filed on 28.10.1998, are reproduced, as
under:
“7. Para No.7 is wrong. The defendants No.1
and 2 were the tenants of the suit land on
payment of rent. The tenancy was created by
late Shri Bhawani Dutt about 32 years ago. That
as the land Reforms Officer has granted the
37 ( 2024:HHC:16951 )
proprietary rights U/S 11 on 19.6.1972, in favour
of the defendants No.1 and 2 and from the date of
they are considering them the exclusive owner of
the suit land and are continuously possessing it
with the animous of the ownership to the
exclusion of whole world and in that view of the
matter despite the fact that the order of
compensation officer is right or wrong, the
defendants No.1 and 2, have in the alternative
became owner of the suit land by way of adverse
possession. The tenancy of the defendants
consented by the State of H.P. also as well as by
the temple. The said tenancy was acquired and
agreed by all the parties on payment of rent.”
64. The plea of tenancy and adverse possession are
mutually destructive pleas, as, there is nothing on record to
demonstrate that there is any evidence regarding the plea of
adverse possession.
65. The onus was upon defendants No.3 to 5 to plead
and prove the plea of bona fide purchaser.
66. DW1 Med Ram, in his examinationinchief, has
deposed that Makardhwaj and Dalip were not aware about
the alleged cultivation. In the written statement, a plea has
been taken by defendants No.1 and 2, with regard to the fact
that tenancy was created by Bhawani Dutt about 32 years
ago, whereas, in his crossexamination, DW1 has deposed
that alleged tenancy was created by Rajguru Haridutt, who,
according to him, was incharge of the temple.
38 ( 2024:HHC:16951 )
67. When, these material facts have not been pleaded,
in the written statement, then, the evidence, which is beyond
the pleadings, cannot be taken into consideration.
68. So far as, the evidence of DW6 Kulbhushan, who
is son of defendant No.5Manohar Lal, is concerned, the same
is hit by Section 60 of the Evidence Act, as he has deposed
that the land, in question, was purchased by his father on
8.7.1992, whereas, according to him, he has perused the
record and it has not been found that there is any
impediment on the sale. He has further deposed that he was
neither purchaser nor seller, as such, his evidence, regarding
the plea of bona fide purchaser, is not liable to be taken into
consideration.
69. DW7, is Tilak Raj (defendant No.5). In his
examinationinChief, he has simply stated that before
purchasing the land, he has made inquiry and also seen the
revenue record. According to him, on the spot, possession of
Med Ram was there. This witness could not disclose about
the fact that before Med Ram, who, was owner of the
property. As such, his evidence is too short to probabilize
their stand, with regard to the bona fide purchaser.
70. DW9, Surender Kumar is son of defendant No.5.
Whatsoever case has been developed by the other defendants,
39 ( 2024:HHC:16951 )
that has been destroyed by this witness, by deposing that in
the scrutiny, regarding the title of the land, they have not
seen the old record.
71. Considering all these facts, this Court is of the
view that the evidence of defendant No.3 to probabilize their
plea regarding the bona fide purchaser has wrongly been
accepted by the learned First Appellate Court.
72. From the tone and tenor of the witnesses
examined here, it is not in dispute that the temple was
existing on the spot, where local people used to perform Pooja
and the suit property is proved to be in the ownership of the
Deity, as admitted by the defendants in their written
statement.
73. Once, there is admission, with regard to the
ownership of the Deity, then, before succeeding in the plea of
bona fide purchaser, it was incumbent upon the defendants
to prove that the land was transferred in the name of
Government, under the provisions of the law, whereas, the
learned First Appellate Court has simply concluded that there
is no pleading or proof, on record, that Lalit Sen was not
competent to pass such resolution. This fact has to be
pleaded and proved, by the defendants, who have taken the
40 ( 2024:HHC:16951 )
defence that the suit land was transferred by Lalit Sen in
favour of the State.
74. Once, the ownership of the plaintiff has been
admitted in the evidence, there was no occasion for the
plaintiff to plead and prove the competency of the Lalit Sen to
pass the resolution. The property is in the name of Deity and
the management was allegedly with defendant No.7, it was for
them to show how the land was transferred, in the name of
defendant No.6State and how the transfer of the land, in the
name of defendant No.6, can be said to be for better
management, when, there is no evidence on record to show
that the Aturalya was built upon the suit land.
75. The learned First Appellate Court in para 53 of the
judgment has held that the purchasers had seen the revenue
entries right from 1972 onwards till 1992. When, there is no
such pleading, in the written statement, then, the evidence,
which is beyond the pleadings, is liable to be ignored.
Consequently, the plea of bona fide purchaser has wrongly
been accepted by the learned First Appellate Court. As such,
the findings on all these issues are liable to be reversed.
76. Consequently, the substantial question of law
No.2, is decided in favour of the appellant.
41 ( 2024:HHC:16951 )
77. So far as the substantial question of law No.4, is
concerned, the alleged transfer of the suit land by Raja Lalit
Sen, being President of the Society, in favour of defendant
No.6 is held void ab initio. Moreover, when the defendants
have taken the plea of adverse possession, in the written
statement, then, until or unless, the plea of adverse
possession is proved, the suit, on the basis of the title, cannot
be said to be barred by limitation, as the suit, on the basis of
the title, can only be stated to be barred by limitation, in case,
the defendants are succeeded, in proving their plea of adverse
possession.
78. In view of the above, the substantial questions of
law, framed in this case, are decided accordingly.
79. In view of the discussions made above, the appeal
is allowed and the judgment and decree passed by the
learned First Appellate Court is reversed, by restoring the
judgment and decree passed by the learned trial Court.
80. Pending application(s), if any, shall also stand
disposed of.
81. Decree sheet be prepared accordingly.
82. Record be sent back.
(Virender Singh)
December 27, 2024(ps) Judge