Ram Sewak vs Laxmi Narain
2018 Latest Caselaw 2693 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

(A.F.R.)
 
Reserved on 05.07.2018
 
Delivered on 20.09.2018
 
Court No. - 34
 

 
Case :- SECOND APPEAL No. - 1223 of 1980
 

 
Appellant :- Ram Sewak
 
Respondent :- Laxmi Narain
 
Counsel for Appellant :- K.N. Saxena,Anand Prakash Paul,Brij Bhushan Paul,D.K. Gupta,Udai Narain Kharey
 
Counsel for Respondent :- M.C. Dwivedi,B.N. Agarwal,Kamlesh Kumar,Narendra Kumar Chaubey
 

 
Hon'ble Sudhir Agarwal,J.

1. This is defendant's appeal under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred to as "Code") arising from judgment and decree dated 25.04.1980 passed by Sri Santosh Kumar Misra, District Judge, Jhansi in Civil Appeal No. 197 of 1979 allowing appeal partly after setting aside judgment and decree dated 02.08.1979 passed by Sri R.S. Morya, Munsif, Court No. 4, Jhansi in Original Suit No. 365 of 1972 whereby suit was dismissed. Lower Appellate Court (hereinafter referred to as "LAC") has decreed the appeal partly directing defendants to remove from working as Pujari or even as Manager of disputed temple and properties attached with temple. Defendants were also permanently restrained from interfering in plaintiff's management of disputed temple and from interfering in plaintiff's appointment of another Prabandhak of disputed temple and properties attached with it. LAC has further clarified that plaintiff shall have no right to transfer or gift away in any manner disputed temple or properties attached therewith and plaintiff shall be merely a Shebait-cum-Manager thereof. However, plaintiff can let out disputed houses, shops and trees of groves and get usufruct income of properties of temple merely as Shebait, but, would not use as personal money except for the benefit of temple.

2. Original Suit No. 365 of 1972 was instituted by Laxmi Narain, plaintiff-respondent (now substituted by legal heirs) in the Court of Munsif, Jhansi vide plaint dated 10.05.1972. Suit was instituted for providing statement of accounts as also for grant of mandatory as well as prohibitory injunction. Plaint case set up by plaintiff-respondent is, that Smt. Radha Rani, widow of Ram Dayal resident of Gursarai, as per desire of her deceased husband, adopted Ganeshi Lal, father of plaintiff. Ram Dayal and his wife were religious people and they got constructed a Ram Janki Temple about 80 years back in the garden (Bagicha) of their house at Gursarai. Deity Ram Janki was installed as per religious traditions. Aforesaid temple became famous in the name of "Mousuma Garha". It was a private temple of Ram Dayal. He employed defendant Rajjoo Lal (now deceased and substituted by legal heirs) on following conditions :-

^^v- ;g fd efUnj esa lsok iwtk /kkfeZd jhfr ds vuqlkj izfroknh djsxk vkSj mRlo leS;k lnSo cM+s izse ls eukrk jgsxkA

c- ;g fd [kpkZ o vkenuh dk fglkc odk;nk j[ksxkA

l- ;g fd izfroknh ds efUnj ds fy;s tks izlkn Hkksx fo;kjh cuk;sxk mldks ifgys Hkxoku dks fu;ekuqlkj p<+kdj vkSj vius fy;s Hkh mlh esa ls og izlkn o Hkkstu ikrk jgsxkA

n- ;g fd izfroknh efUnj dh tk;nkn dks lqjf{kr j[ksxk vkSj mldh ekdwy fgQktr j[ksxk vkSj fdlh rjg ls mldks [kqnoqnZ o cjckn ugha djsxkA**

"A. That the defendant shall perform the priestly duties in the temple as per religious customs and rites; and he shall always keep celebrating Samaiyya Utvas with deep fervour.

B. That he shall maintain accounts for income & expenditure properly.

C. That Prasad Bhog to be prepared by Vichaari for defendant's temple shall be duly offered first to the Deity; out of which he shall continue to get prasad and food for himself as well.

D. That defendant shall keep temple property safe and take appropriate care; and he shall, in no way, destroy or damage it."

(English translation by Court)

3. The entire income of garden (Bagicha) used to be spent for maintenance of temple. Later on, three shops and three houses were also made available for meeting expenses of temple. It was clearly instructed that income of those properties would be used for the purpose of temple only. Defendant discharged his duties as Pujari very diligently and honestly. After death of Ram Dayal, defendant continued to discharge his duties as Pujari. Smt. Radha Rani, after death of her husband, allowed defendant to look after personal properties including authorizing him to look after Court cases also. Plaintiff's father Ganeshi Lal died in 1942 and grand-mother i.e. Smt. Radha Rani died in 1948. Ram Dayal normally, resided at Gursarai but since he had his Zamindari in Mauza Chamed, Pargana Konch, therefore, he used to reside at Konch also. Plaintiff's father Ganeshi Lal and Smt. Radha Rani, generally, resided at Konch. After death of Smt. Radha Rani, defendant started committing default in functioning and also misused income of temple and properties for his own benefits on account whereof condition of temple and properties attached thereto got deteriorated. considerably, and houses and shops became in dilapidated conditions. Defendant also stopped observance of regular religious festivals in temple. Deities' statue got damaged, but, defendant did not get it replaced. Well, situated in the garden (Bagicha), also got damaged but not repaired. Plaintiff, after death of his father, time to time reminded and requested defendant to take steps for improvement of temple and its buildings but he only gave assurance and did nothing. Defendant also stopped Sewa Puja of Deity in temple and never gave any accounts in respect of income from temple and attached properties. Plaintiff, therefore, now is not interested to continue defendant as Pujari of temple and want to appoint somebody else. Cause of action arose on 25.04.1972 and 03.05.1972 when defendant neither provided accounts nor shown any attempt to do Sewa Puja of temple. Plaintiff sought following relief :-

^^v- ;g fd izfroknh ls fglkc vkenuh o [kjps dk efUnj ekSlwek x c- ;g fd izfroknh dks efUnj ekSlwek x<+k dk efUnj fLFkr xqjljk; ds iqtkjh dk dk;Z djus ls gVk fn;k tkosA

l- ;g fd izfroknh dks tfj;s gqdqe bErukbZ nokeh jksd fn;k tkos fd izfroknh oknh ds mDr efUnj ds bUrtke djus esa o nwljk iqtkjh ds }kjk lsok iwtk djkus es fdlh rjg dk ck/kd u gksA

n- ;g fd [kpkZ eqdnek o nhxj nknjlh ftldk fd oknh ikus dk eqLrgd gks fnykbZ tkosA**

"A. That defendant may kindly be asked to give accounts of income and expenditure of said temple of Garha and of the shops, houses and garden etc. related thereto; and the amount found due from him may kindly be given to plaintiff.

B. That defendant may kindly be removed from priesthood at the aforesaid temple of Garha situated at Gursarai.

C. That by permanent injunction defendant be restrained from interfering with the affairs of petitioner's aforesaid temple with respect to management and getting worship through other priest.

D. That cost of suit along with any other relief which plaintiff is entitled to may kindly be awarded to him."

(English Translation by Court)

4. Defendant contested the suit by filing a written statement disputing right of plaintiff to seek accounts in respect of income. He pleaded that temple Ram Janki at Gardha, Qasba Gursarai is an ancient temple wherein defendant, from his ancestor's period, is a Pujari and Manager. He has a right of Sewa Puja in temple and nobody can interfere in the said right. Plaintiff's averment that temple was got constructed by Ram Dayal about 80 years back and he provided some properties for maintenance etc. are all incorrect. Temple in question is a "public temple" and plaintiff cannot claim any personal right thereon. Smt. Radha Rani, widow of Ram Dayal provided Power of Attorney to defendant for looking after Court's cases in respect of personal property of Smt. Radha Rani, but, that has nothing to do with temple and property thereof which comprised of temple, three houses, three shops and garden (Bagicha). Maintainability of suit was also challenged on the ground that it is barred by Section 92 of Code and limitation. Plaintiff has no possession over disputed property for the last more than 12 years and suit in question has been filed at the instance of Mohan Lal and Durga Prasad against whom defendant has instituted suit for eviction from the properties attached with temple.

5. Trial Court formulated following six issues :-

^^1- D;k fookfnr eafnj oknh dh futh lEifRr gS\

2- D;k oknh izfroknh ls fglkc ekaxus dk vf/kdkjh ugha gS\

3- D;k okn dk voewY;kadu fd;k x;k gS rFkk vnk dh xbZ U;k; 'kqYd vi;kZIr gS\

4- D;k okn /kkjk 92 O;-iz-la- ds v/khu okafNr gS\

5- D;k okn dkyckf/kr gS\

6- vuqrks"k] ;fn dksbZ oknh ftldk gdnkj gS\**

"1. Whether the disputed temple is the private property of plaintiff?

2. Whether the plaintiff is not entitled to ask for accounts from defendant?

3. Whether the suit has been undervalued and the court fee paid is insufficient?

4. That the suit is maintainable under Section 92 of CPC?

5. Whether the suit is time barred?

6. Relief, if any, which the plaintiff is entitled to?"

(English translation by Court)

6. Issue-1 was answered in negative holding that temple is not a private property of plaintiff. Having said so, it held that there was no necessity of answering issues- 2 and 5. Issue-4 was also answered against plaintiff. Issue-3 was already answered vide judgement and order dated 28.11.1978 in favour of defendant. Consequently, suit was dismissed vide judgement and decree dated 02.08.1979.

7. Plaintiff-respondent, thereafter preferred Civil Appeal No. 197 of 1979. LAC considered following questions :

(1) Whether disputed property is a "public temple" or "private temple"?

(2) Whether plaintiff's grand-father had really constructed temple in question?

(3) Whether plaintiff alone continues to be the sole owner having vested right to transfer or to sell or to gift away temple's income or profits coming from the property attached with the temple or not?

(4) Whether suit is barred by limitation?

8. Answering question-1, LAC held as under :-

"I, therefore, hold that this private temple which was originally constructed by plaintiff's grand-father was privately dedicated to his private idol and private temple and all the ingredients of public temple are not found in this temple or idol"

9. Now, questions-2 and 3 were considered together and Court below held that plaintiff has got a vested right to continue to be exclusive owner and exclusive right to manage his private temple or idol despite the fact that his grand-father had appointed defendant for his help and aid. Defendant, being mere licensee, can be removed by plaintiff, who continues to be a Chief Manager or Prabandhak (both as original owner of temple and also being its owner-cum-Manager). Plaintiff, being founder and owner of temple and its properties, is also its "Shebait". It further held that suit is not barred by limitation and defendant cannot claim any adverse possession. Having said so, LAC held that plaintiff is entitled to get relief of injunction against defendant and also relief of accounting on the part of defendant. It is this judgment, which has been appealed before this Court.

10. This appeal was admitted on following substantial questions of law :-

"Whether on the findings that public had been visiting the temple for worship and darshan without obstruction, the nature of the temple was that of public temple?"

11. Sri Brij Bhushan Paul, Advocate assisted by Sri Anand Prakash Paul, learned counsel appearing for appellant contended that if a temple is being visited by public in general without obstruction and performing Pooja-Archana etc., temple cannot be said to be a private one but it is a public temple and LAC in recording its finding otherwise has erred in law. According to him, access of public for Darshan and Sewa of Deity is the conclusive ingredients to determine whether a temple or religious endowment is public in nature or in private endowment.

12. Question "whether a temple is a public or private and what are the requisite tests or factors which may be relevant to determine that a particular religious endowment of temple or trust is a public or private" has been considered time and again and this Court has to examine the issue raised in present appeal in the light of these authorities.

13. A Constitution Bench considered this question "whether a Hindu Temple is private or public and how it can be determined" in Tilkayat Shri Govindlalji Maharaj vs. State of Rajasthan and Others AIR 1963 SC 1638. It held that a temple belonging to a family which is a private temple is not 'Unknown' to Hindu law. It may also happen that a religious reputation of founder of such private temple is of such a high order that it may attract devotees in large numbers. Court said that the mere fact that a large number of devotees are allowed to worship in the temple would not necessarily make the private temple a public temple. In order to become a public temple, it can be built by subscriptions raised by public and a deity installed to enable all the members of public to offer worship and such a temple would clearly be a public temple. Court said that in order to determine the public or private nature of temple, certain facts, which may be considered, are :

(i) Is the temple built in such an imposing manner that it may prima facie appear to be a public temple?

(ii) Appearance of temple cannot be a decisive factor but a relevant factor.

(iii) Are the members of public entitled to an entry in the temple?

(iv) Are they entitled to take part in offering service and taking Darshan in temple?

(v) Are the members of public entitled to take part in festivals and ceremonies arranged in temple?

(vi) Are their offerings accepted as a matter of right?

14. Court observed that participation of members of public for Darshan in temple and in the daily acts of worship or in celebrations of festival occasions may be a very important factor to consider in determining character of temple.

15. Again, this issue came up in Dhaneshwarbuwa Guru Purshottambuwa Owner of Shri Vithalrukha Vs. The Charity Commissioner, State of Bombay (1976) 2 SCC 417, there was a saint Sakharam Maharaj at Amalner. Deity of his worship was Shri Vithal Rukhamai. Sakharam Maharaj constructed a temple in the year 1817 at Amalner and installed aforesaid deity according to religious rites. He also acquired certain properties and then constituted temple with properties as Shri Vithal Rukhamai Sansthan of Amalner. After passing of Bombay Public Trusts Act, 1950 (No. 29 of 1950) (hereinafter referred to as 'Act, 1950'), an application under section 18 of Act, 1950 was filed by three persons Bhaskarrao Chimanrao Deshmukh, Ramrao Sahebrao Deshmukh and Ramkrishna Tryambak Deshpande, describing themselves as Attorneys of one Vasudeobuwa who was described as "owner" of the property. Application was made on May 29, 1952, before Assistant Charity Commissioner, Poona, under protest and without prejudice to the claim made therein that Sansthan was not a public trust. Notices were issued by Assistant Charity Commissioner whereafter Sansthan adduced evidence before him. Assistant Charity Commissioner vide order dated August 25, 1956 held Sansthan to be a public trust and directed for registration under the Act, 1950. In the appeal preferred under section 70 of Act, 1950, Charity Commissioner, Bombay confirmed order of Assistant Charity Commissioner vide order dated August 31, 1957. Then an application was filed under section 72 of Act, 1950 before District Judge of West Khandesh at Dhulia on behalf of Purshottambuwa who had succeeded Guru Vasudeobuwa and claimed as "owner" of Sansthan. District Judge reversed decision of Charity Commissioner and declared Sansthan to be a private property. Charity Commissioner then appealed under Section 72(4) of Act, 1950 before Bombay High Court who vide order dated 19/20th December, 1962, set aside order of District Judge and held Sansthan to be a public trust. This led to appeal before Apex Court. Court referred to its earlier decisions and observed that origin of temple, the manner in which its affairs are managed, the nature and extent of gifts received by it, rights exercised by devotees in regard to worship therein, consciousness of manager and consciousness of devotees themselves as to public character of temple are factors that go to establish whether a temple is a public temple or a private temple. Court further said that controversy may be resolved by Court about the character of trust considering the object and purpose for which the trust was created, the consistent manner in which the property has been dealt with or managed by those in charge, the manner in which the property has long been used by the public, the contribution of the public, to all intents and purposes, as a matter of right without the least interference or restriction from the temple authorities, to foster maintenance of the worship, the accretion to the trust property by way of grants from the State or gifts from outsiders inconsistent with the private nature of the trust, the nature of devolution of the property. These are all important elements in determination of question whether a property is a private or a public religious endowment. In order to determine the nature of property in dispute therein, Court noticed existence of following characters and declared it to be a public endowment.

(1) The deity installed in the temple was intended by the Founder to be continually worshiped by an indeterminate multitude of the Hindu public:

(2) In order to facilitate worship by the public, the founder also intended that regular Bhajan, Kirtan and worship shall be maintained and annual ceremonies and processions for pilgrimage shall be conducted by the saints in succession nominated by the reigning saint.

(3) There has been no evidence of any hindrance or restriction in the matter of continuous worship by the public extending over a long period.

(4) More than a century ago the temple in its own name was recipient of land by Royal grant and the same has been managed by the saints in succession as Manager not as personal or private property.

(5) Gifts of land by members of the public from the Taluka and outside it in favour of the temple or of the Sansthan for the purpose of maintenance of the worship.

(6) Collection of subscriptions were made from house to house by taking Maharaj and also for 'Gulal' ceremony.

(7) Holding out of the Sansthan to all intents and purpose as a public temple.

(8) Treating of the Sansthan by those who are connected with the management as intended for user by the public without restriction.

(9) Absence of any evidence in the long history of the Sansthan to warrant that it had any appearance of, or that it was ever treated as a private property.

16. Again, in Radhakanta Deb and another vs. Commissioner of Hindu Religious Endowments, Orissa, 1981 AIR 798, Court observed that whenever a dedication is made for religious purposes and deity installed in a temple, the worship of the deity is a necessary concomitant of the installation of the deity, and therefore, the mere factum of worship would not determine the nature of the endowment. Court further held :

"Indeed if it is proved that the worship by the members of the public is as of right that may be a circumstance which may in some cases conclusively establish that the endowment was of a public nature."

17. Court held that following factors must be considered to determine the nature of endowment:-

(1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right;

(2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large;

(3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature.

(4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment.

18. In Kuldip Chand and others Vs. Advocate General to Government of Himachal Pradesh and others (2003) 5 SCC 46, the question up for consideration was "Whether the mere use of a premises as a 'Dharamsala' for about 125 years would lead to an inference that the same belongs to a public trust". One Raj Kumar Bir Singh, owner of Nahan Estate, constructed a Dharamsala on a land measuring 1702 sq. yards. In the town of Nahan, public in general, travellers and in particular those taking part in an yearly fair known as Renuka Fair could be stayed in the said Dharmsala for a period of three days without permission of owner and thereafter, permission was necessary. Claiming it to be a Trust property, a suit was filed by Advocate General of the Government of Himachal Pradesh under Section 92 of Code of Civil Procedure alleging that Dharmsala was dedicated to public. Learned Single Judge held that there was no public trust created. Division Bench reversed the judgment and matter came to Supreme Court. Court held that a Hindu is entitled to dedicate his property for religious and charitable purposes but intention and purpose must be cleared. It is said that :-

"For the purpose of creating an endowment, what is necessary is a clear and unequivocal manifestation of intention to create a trust and vesting thereof in the donor and another as trustees. Subject of endowment, however, must be certain. Dedication of property either may be complete or partial. When such dedication is complete, a public trust is created in contra-distinction to a partial dedication which would only create a charity. Although the dedication to charity need not necessarily be by instrument or grant. there must exist cogent and satisfactory evidence of conduct of the parties and user of the property, which show the extinction of the private secular character of the property and its complete dedication to charity."

19. Court further said that a dedication for public purposes and for the benefit of general public would involve complete cessation of ownership on the part of the founder and vesting of the property for the religious object. Dedication may either be complete or partial. A right of easement in favour of a community or a part of the community would not constitute such dedication where the owner retained the property for himself. It may be that right of the owner of the property is qualified by public right of user but such right is not wholly unrestricted. Apart from the fact that the public in general and or any particular community did not have any right of participation in the management of the property nor the maintenance thereof any contribution was made is a matter of much significance. A dedication, it may bear repetition to state, would mean complete relinquishment of his right of ownership and proprietary. When complete control is retained by the owner - be it be appointment of a Chowkidar: appropriation of rents, maintenance thereof from his personal funds -- dedication cannot be said to be complete.

20. In Sri Gedela Satchidananda Murthy Vs. Deputy Commissioner, Endowments Department, A.P. & Others, (2007) 5 SCC 67, Court following its earlier judgment in Shri Vithal Rukhamai Sansthan (supra) reiterated "We are not, however, oblivious of the fact that only because members of the public are freely admitted to the temple, that by itself would not be sufficient to come to the conclusion that the temple was a public institution."

21. In State of West Bengal Vs. Sri Sri Lakshmi Janardan Thakur, (2006) 7 SCC 490, Court laid down relevant factors in determining whether a trust is public or not and said as under :

"In order to ascertain whether a trust is private, the following factors are relevant:

(1) If the beneficiaries are ascertained individuals.

(2) If the grant has been made in favour of an individual and not in favour of a deity.

(3) The temple is situated within the campus of the residence of the donor.

(4) If the revenue records or entries suggest the land being in possession of an individual and not in the deity."

22. Court further said that in order to determine whether a temple along with properties attached to it, is a public trust, an inference can be drawn from following relevant factors in its favour:

"(1) If public visit the temple as of right.

(2) If endowment is in the name of the deity.

(3) beneficiaries are the public.

(4) If the management is made through the agency of the public or the accounts of the temple are being scrutinized by the public."

23. Looking to the facts of present case, this Court finds that in revenue record of khasra 1348 fasli (Ex. 1), temple and its properties were shown in the ownership of Radha Rani. In khasra 1303 fasli (Ex. 2) Bagicha - the property income whereof was to be used for the benefit of temple, was shown in the ownership of Radha Rani, widow of Ram Dayal. LAC has recorded a categorical finding that temple in question was constructed by ancestors of plaintiff and defendant Rajjoo Lal was Manager or Prabhandhak of said temple. He himself admitted in cross-examination that temple in question was not constructed by him. Expenditure on religious festivals used to be made by defendant Rajjoo Lal from income of property attached to the temple. There is no evidence showing complete dedication to deity nor that the property was ever entered in revenue record in the name of deity but it continued to be in the name of Ram Dayal and Smt. Radha Rani. There is no evidence or finding that though members of public used to come to the temple for Darshan etc but their visit to temple was as a matter of right, unrestricted and they used to make a lot of offerings to temple etc. Therefore, the contention of learned counsel for appellant that the mere fact that public in general used to come to temple for Darshan is sufficient to decide that temple in question was or is a public temple, cannot be accepted. The question formulated hereinabove is answered against appellant.

24. The appeal lacks merit and is, accordingly, dismissed.

Order Date :- 20.09.2018

Siddhant Sahu/PS