Allahabad High Court
Satish Chandra Mishra vs Shri Gopal Mandir Virajman Thakur Ji ... on 2 May, 2024
Author: Ajit Kumar
Bench: Ajit Kumar
HIGH COURT OF JUDICATURE AT ALLAHABAD
?A.F.R.
Neutral Citation No. - 2024:AHC:80251
Court No. - 4
Case :- MATTERS UNDER ARTICLE 227 No. - 1073 of 2024
Petitioner :- Satish Chandra Mishra
Respondent :- Shri Gopal Mandir Virajman Thakur Ji Maharaj And Radha Ji
Counsel for Petitioner :- Prakhar Saran Srivastava,Tarun Agrawal
Counsel for Respondent :- Ashish Kumar Singh,Pratik Chandra
Hon'ble Ajit Kumar,J.
1. Heard Sri Tarun Agrawal, learned counsel for the petitioner and Sri Ashish Kumar Singh, learned counsel for the respondent.
2. Petitioner before this Court is admittedly a tenant in the suit property and it is for his ejectment that Small Cause Suit No. 2 of 2018 has been instituted before the Judge, Small Causes, Pilibhit by the contesting respondent who claimed to be a Trust managing the affairs of the Temple namely Gopal Mandir Virajman Thakur Ji Maharaj and Radha Ji.
3. Upon suit being instituted, petitioner moved an application under Section 23 of the Provincial Small Causes Court Act, 1887 for return of the plaint on the ground that there was serious title dispute between the contesting plaintiff/ respondent and one Naresh Chandra Agarwal who claimed himself to be Shebait of the Temple and it was in that capacity that Mr. Agarwal had instituted a regular suit seeking permanent prohibitory injunction, being Original Suit No. 195 of 2017.
4. Upon the said application filed under Section 23 of the Act being rejected by the Judge, Small Causes vide order dated 14.12.2022, petitioner preferred a revision being No. 30 of 2023 which also came to be dismissed on 28.11.2023 and hence this petition.
5. The submission advanced by learned counsel for the petitioner is two fold:
i). There being a serious title dispute as to the management of the Temple in question between the contesting plaintiff/ respondent, a Trust and one Naresh Chandra Agarwal, who claimed to be a Shebait in a suit instituted by later for permanent prohibitory injunction, the plaint in eviction suit before the Judge, Small Causes Court Act was liable to be returned.
ii). Both the courts below have manifestly erred in failing to appreciate a fact that petitioner having been depositing the rent in an account managed by Naresh Chandra Agarwal, the petitioner was not liable to be treated as tenant of Trust to maintain a suit for eviction at its instance.
6. Learned counsel for the petitioner Sri Tarun Agrawal has relied upon a concurrent bench judgment of this Court in Mst. Bhagmani Devi v. VIII A.D.J. and Anr., 2011 (9) ADJ 567. He has also relied upon another judgment of this Court in the case of Gurmala & Ors v. Mohd. Ishaq & Ors, (2013) 99 ALR 624 and M. Siddiq (dead) through Legal Representatives (Ram Janmabhumi Temple Case) v. Mahant Suresh Das & Ors, (2020) 1 SCC 1.
7. Per contra, the argument advanced by learned counsel for the plaintiff/ respondent is that a suit for permanent prohibitory injunction may invite the court to incidentally go into the question of title but this suit by itself cannot become a declaratory suit to raise a dispute of title by the plaintiff claiming as Shebait.
8. It is argued that taking the plaint allegations of the injunction suit in its entirety, it is admitted to the alleged Shebait that a Trust got created with the registration of Trust Deed to manage the affairs of the Temple and unless and until a decree to declare the Trust null and void in so far as management of temple is concerned, is prayed for, no title dispute prima facie can be said to have been raised.
9. Learned counsel for the contesting respondent has further argued that plaintiff of injunction suit namely Naresh Chandra Agarwal himself, upon being implicated in a criminal case for selling away properties of the Temple in collusion with the opposite party, as tenant of the temple, applied for bail, in which he denied himself to be Manager of Temple property and this fact having not been denied either in revision or before this Court, it does not lie in the mouth of the tenant to suggest that there was a serious title dispute to non-suit the plaintiff under Section 23 of the Act.
10. Having heard learned counsel for the respective parties and having perused the records, I find that core issue is as to whether the suit filed by Naresh Chandra Agarwal being O.S. NO. 195 of 2017 can be said to be a title suit as against the plaintiff/ respondent, to non-suit him by the tenant in a SCC suit.
11. It is true that germane to the concept of title is a legal right to manage and dispose of the property which also entails a right to hold possession.
12. Looking to the entire plant allegations of O.S. No. 195 of 2017, it transpires that the father of Naresh Chandra Agarwal was claimed to be the Manager of Temple property and upon his death on 01.08.2000, it was the Naresh Chandra Agarwal who had been connected with the affairs of Temple. Certain details of the property have been given in paras 10 and 11 and the names of tenants have also been given and he claimed his right to receive rent from the tenants. In para 13 of the plaint Naresh Chandra Agarwal claimed that Ganesh Prasad Mishra was the Pujari of the Temple and in that connection he was allotted rooms on the campus of the temple and his son Durga Prasad and Chhote Lal were residing with him and later on Durga Prasad started residing in a Ayurvedic College and after the death of Ganesh Prasad Mishra, the then Manager Sohan Lal was managing the affairs of the Temple. He stated that Chhote Lal was carrying Pooja Archana activities upon the guidance and dictates of his father Lala Chaturbhuj. It was the second son of Chhote Lal Mishra namely Dinesh Chandra Mishra who used to assist his father in Pooja Archana and when Chhote Lal died in 1992 then Durga Prasad Mishra started doing Pooja and Archana and after retirement from the service of the bank that he lodged some first information report against Naresh Chandra Agarwal in 2017 and created a Trust Deed and was interfering with the Pooja and Archana of the plaintiff and hence he instituted suit for injunction.
13. The entire pleadings as have been raised in the suit seeking permanent prohibitory injunction while the Trust Deed has been questioned but that has not been challenged. Still further the pleadings do not in any manner disclose that plaintiff of the suit Naresh Chandra Agarwal was carrying out any Pooja and Archana worship etc. or managing the affairs exclusively to be a Shebait. All that he claimed that father of Dinesh Chandra Mishra was doing the management of the Temple under the guidance and dictates of his father Lala Chaturbhuj and it is after the death of Chhote Lal Mishra, Dinesh Chandra Mishra was managing the affairs.
14. Thus, nowhere any claim of Shebait has been set up in the entire plaint allegations except the plea that his father was managing the Temple and so he would be entitled to manage the Temple. This showed that he wanted a declaratory decree in his favour but conspicuously did not seek any relief of that nature in the plaint.
15. Thus, in my considered view, merely because there were some pleadings raised tracing rights from his father, Naresh Chandra Agarwal cannot be said to have set up a serious title claim. A suit for injunction is maintainable when there is a prima facie title and possession both are claimed at the same time. Further, I find that the trial court has returned finding to the effect that while applying for bail in a criminal case which has also been referred to in injunction suit, Naresh Chandra Agarwal made a plea that he was not the Manager of the Temple property.
16. This finding which has been returned by the trial Judge has been affirmed in revision and there is no whisper in the entire petition that this finding is perverse. The trial court as well as the District Judge sitting in revision in my considered view have rightly returned a finding that a mere allegation by a tenant that he has been paying rent to the Temple of which the Manager was Naresh Chandra Agarwal only and who had also instituted a suit for permanent prohibitory injunction, would not entitle him to non-suit the plaintiff in an eviction suit.
17. The judgment in the case of Mst. Bhagmani Devi (supra) is distinguishable on facts where the Court had framed issue whether there existed any relationship of landlord-tenant between the parties and it was upon the issue no. 1 that court doubted the title as admittedly the Maharaj of Banaras was managing the affairs of temple and the question arose as to whether property belonged to Deity or in the name of Maharaja Banaras as a custodian, whereas, in the present case as per the own admission in the plaint and looking to the entire plaint allegations in the injunction suit, Naresh Chandra Agarwal could not claim that he was managing the affairs of the Temple.
18. Similarly, the judgment in the case of Gurmala & Ors (supra) is also distinguishable on facts as in that case the property was sold out by real owners and the question arose as to in whose share the shop fell. The rent suit filed by respondent nos. 1 and 3 for ejectment was dismissed holding that there was no landlord-tenant relationship. There is no such issue involved in the present case as petitioner is admittedly tenant of the Deity.
19. The principle of law as discussed in paragraph no. 54 of the judgment is not questionable but whether it applies in the present case or not, is to be seen.
20. Looking to the facts of the present case, I do not see that there is any serious dispute of title so as to non-suit the plaintiff in this eviction suit.
21. In so far as the judgment in the case of Mohd. Noor & Ors v. Mohd. Ibrahim & Ors, (1994) 5 SCC 562 where the Court considered the question of transfer of ownership and transfer of interest in the property, is concerned, I do not see any such question to be arising in the present case unless and until the plaintiff Naresh Chandra Agarwal in his suit questiones the Trust Deed also and so declaratory decree to hold it null and void. Such issue not being in germane, more especially in view of the pleadings raised in the plaint, I do not see this judgment to be helping out in in any manner to the present petitioner to succeed in getting the plaint returned.
22. Coming to the judgment in the case of Ram Janmabhumi Temple (supra) cited by learned counsel for the petitioner as he has relied upon paragraph nos. 425, 430, 434, 435, 436, 437 and 438, the argument advanced was that the role of Shebait is different from the role of Pujari (worshiper) and Hindu idol being a juristic person, the entire endowed property vested in the idol and Shebait being the Manager of the Temple, would be a person who has a right to sue on behalf of Hindu idol. Thus, it was sought to be contended that Naresh Chandra Agarwal having instituted a suit to set up a title as a Shebait of the Temple, there arose a serious dispute as to the title to manage the affairs of the Temple inter se Shebait and Trust. He submitted that any suit, therefore, on behalf of Temple, if was to be brought by Shebait, herein this case, it would have been by Naresh Chandra Agarwal and so the present suit for eviction before small cause court by Trust was certainly not maintainable.
23. In order to appreciate the aforesaid argument, relevant paragraphs are reproduced hereunder:
"425. Courts recognise a Hindu idol as the material embodiment of a testator's pious purpose. Juristic personality can also be conferred on aSwayambhu deity which is a self-manifestation in nature. An idol is a juristic person in which title to the endowed property vests. The idol does not enjoy possession of the property in the same manner as do natural persons. The property vests in the idol only in an ideal sense. The idol must act through some human agency which will manage its properties, arrange for the performance of ceremonies associated with worship and take steps to protect the endowment, inter alia by bringing proceedings on behalf of the idol. The shebait is the human person who discharges this role.
430. The position of a shebait in Hindu law is distinct from the position of a trustee in English Law. Before the Privy Council in Vidya Varuthi Thirtha v. Balusami Ayyar [Vidya Varuthi Thirtha v. Balusami Ayyar, 1921 SCC OnLine PC 58 : (1920-21) 48 IA 302 : AIR 1922 PC 123] the question was whether the terms "conveyed in trust" and "trustee" as they appear in Article 134 of the Limitation Act, 1908 apply to properties endowed to the Mahant of a Hindu mutt. The Privy Council rejected the contention that persons managing endowed properties are in the position of trustees under English Law. Ameer Ali, J. held : (SCC OnLine PC)
"It is also to be remembered that a "trust" in the sense in which the expression is used in English Law, is unknown in the Hindu system, pure and simple.? Hindu piety found expression in gifts to idols and images consecrated and installed in temples, to religious institutions of every kind.? Religious institutions, known under different names, and regarded as possessing the same "juristic. capacity, and gifts are made to them eo nomine ? When the gift is directly to an idol or a temple, the seisin to complete the gift is necessarily effected by human agency. Called by whatever name, he is only the manager and custodian of the idol of the institution. ? In no case was the property conveyed to or vested in him, nor is he a "trustee" in the English sense of the term, although in view of the obligations and duties vesting on him, he is answerable as a trustee in the general sense, for maladministration. ?
? it would follow that an alienation by a manager or superior by whatever name called cannot be treated as the act of a "trustee" to whom property has been "conveyed in trust" and who by virtue thereof has the capacity vested in him which is possessed by a "trustee" in English law.
***
? Neither under the Hindu law nor in the Mahomedan system is any property "conveyed" to a shebait or a mutavalli in the case of a dedication. Nor is any property vested in him, whatever property he holds for the idol or the institution he holds as manager with certain beneficial interests regulated by custom and usage."
(emphasis supplied)
434.In addition to the duties that must be discharged in relation to the debutter property, a shebait may have an interest in the usufruct of the debutter property. In this view, shebaitship is not an office simpliciter, but is also property for the purposes of devolution. [ Approved by the Privy Council inGanesh Chunder Dhurv.Lal Behary Dhur, 1936 SCC OnLine PC 53 : (1935-36) 63 IA 448 andBhabatarini Debiv.Ashalata Debi, 1943 SCC OnLine PC 1 : (1942-43) 70 IA 57.] This view has been affirmed by this Court inAngurbala Mullickv.Debabrata Mullick[Angurbala Mullickv.Debabrata Mullick, 1951 SCC 420 : 1951 SCR 1125 : AIR 1951 SC 293] . The controversy in that case was whether the appellant, as the widow of the shebait, was entitled to act as the shebait of the idol instead of the minor son of the shebait born from his first marriage who was the respondent. It was contended that the office of shebaitship would devolve in accordance with the Hindu Women's Right to Property Act, 1937. B.K. Mukherjea, J. speaking for a four-Judge Bench of this Court accepted this contention and held : (Angurbala Mullick case[Angurbala Mullickv.Debabrata Mullick, 1951 SCC 420 : 1951 SCR 1125 : AIR 1951 SC 293] , AIR p. 296, para 11)
"11.? But though a shebait is a manager and not a trustee in the technical sense, it would not be correct to describe the shebaitship as a mere office. The shebait has not only duties to discharge in connection with the endowment, but he has a beneficial interest in the debutter property. As the Judicial Committee observed in the above case, in almost all such endowments the shebait has a share in the usufruct of the debutter property which depends upon the terms of the grant or upon custom or usage. Even where no emoluments are attached to the office of the shebait, he enjoys some sort of right or interest in the endowed property which partially at least has the character of a proprietary right. Thus, in the conception ofshebaitiboth the elements of office and property, of duties and personal interest, are mixed up and blended together; and one of the elements cannot be detached from the other. It is the presence of this personal or beneficial interest in the endowed property which invests shebaitship with the character of proprietary rights and attaches to it the legal incidents of property."
The Court held that a shebait has a beneficial interest in the usufruct of the debutter property. This beneficial interest is in the form of a proprietary right. Though the role of the shebait is premised on the performance of certain duties for the idol and the benefits are appurtenant, neither can be separated from the other. Thus, office and property are both blended in shebaitship, the personal interest of a shebait beingappurtenantto their duties. [Affirmed inBadri Nathv.Punna, (1979) 3 SCC 71;Profulla Chorone Requittev.Satya Chorone Requitte, (1979) 3 SCC 409.]
Pujaris
435.A final point may be made with respect to shebaits. A pujari who conducts worship at a temple is not merely, by offering worship to the idol, elevated to the status of a shebait. A pujari is a servant or appointee of a shebait and gains no independent right as a shebait despite having conducted the ceremonies for a long period of time. Thus, the mere presence of pujaris does not vest in them any right to be shebaits. InGauri Shankarv.Ambika Dutt[Gauri Shankarv.Ambika Dutt, 1948 SCC OnLine Pat 28 : AIR 1954 Pat 196] , the plaintiff was the descendant of a person appointed as a pujari on property dedicated for the worship of an idol. A suit was instituted for claiming partition of the right to worship in the temple and a division of the offerings. A Division Bench of the Patna High Court held that the relevant question is whether the debutter appointed the pujari as a shebait. Ramaswami, J. held : (SCC OnLine Pat para 7)
"7.? It is important to state that a pujari or archak is not a shebait. A pujari is appointed by the Shebait as the purohit to conduct the worship. But that does not transfer the rights and obligations of the Shebait to the purohit. He is not entitled to be continued as a matter of right in his office as pujari. He is merely a servant appointed by the Shebait for the performance of ceremonies. Where the appointment of a purohit has been at the will of the founder the mere fact that the appointees have performed the worship for several generations, will not confer an independent right upon the members of the family so appointed and will not entitle them as of right to be continued in office as priest."
436.A shebait is vested with the authority to manage the properties of the deity and ensure the fulfilment of the purpose for which the property was dedicated. As a necessary adjunct of this managerial role, a shebait may hire pujaris for the performance of worship. This does not confer upon the appointed pujaris the status of a shebait. As appointees of the shebait, they are liable to be removed from office and cannot claim a right to continue in office. The distinction between a shebait and a pujari was recognised by this Court inSree Sree Kalimata Thakurani of Kalighatv.Jibandhan Mukherjee[Sree Sree Kalimata Thakurani of Kalighatv.Jibandhan Mukherjee, AIR 1962 SC 1329] . A suit was instituted under Section 92 of the Code of Civil Procedure, 1908 for the framing of a scheme for the proper management of the seva-puja of the Sree Sree Kali Mata Thakurani and her associated deities. A Constitution Bench of this Court, speaking through J.R. Mudholkar, J. held : (AIR p. 1333, para 10)
"10.? It is wrong to call shebaits mere pujaris or archakas. A shebait as has been pointed out by Mukherjea, J. (as he then was), in his Tagore Law Lectures onHindu Law of Religious and Charitable Trusts, is a human ministrant of the deity while a pujari is appointed by the founder or the shebait to conduct worship. Pujari thus is a servant of the shebait. Shebaitship is not mere office, it is property as well."
437.A pujari is appointed by the founder or by a shebait to conduct worship. This appointment does not confer upon the pujari the status of a shebait. They are liable to be removed for any act of mismanagement or indiscipline which is inconsistent with the performance of their duties. Further, where the appointment of a pujari has been at the will of the testator, the fact that appointees have performed the worship for several generations does not confer an independent right upon the appointee or members of their family and will not entitle them as of right to be continued in office as priests. Nor does the mere performance of the work of a pujari in and of itself render a person a shebait.
438.The position of a shebait is a substantive position in law that confers upon the person the exclusive right to manage the properties of the idol to the exclusion of all others. In addition to the exclusive right to manage an idol's properties, the shebait has a right to institute proceedings on behalf of the idol. Whether the right to sue on behalf of the idol can be exercised only by the shebait (in a situation where there is a shebait) or can also be exercised by the idol through a "next friend" has been the subject of controversy in the proceedings before us. The plaintiff in Suit No. 3, Nirmohi Akhara contends that the Nirmohis are the shebaits of the idols of Lord Ram at the disputed site. Mr S.K. Jain, learned Senior Counsel appearing on behalf of Nirmohi Akhara, urged that absent any allegation of maladministration or misdemeanour in the averments in the plaint in Suit No. 5, Devki Nandan Agarwal could not have maintained a suit on behalf of the idols as a next friend. Mr Jain placed significant reliance on the contention that the plaint in Suit No. 5 does not aver any mismanagement by the Nirmohis. Mr S.K. Jain urged that though the plaintiffs in Suit No. 5 (which was instituted in 1989) were aware of Suit No. 3 which was instituted by Nirmohi Akhara (in 1959) claiming as a shebait, the plaint in Suit No. 5 does not challenge the position of Nirmohi Akhara as a shebait. Consequently, Nirmohi Akhara urged that a suit by a next friend on behalf of the idol is not maintainable."
(Emphasis added)
24. Having gone through the aforesaid paragraphs of the judgment of Ram Janmbhumi case, I find that a distinction is sought to be drawn between Shebait and the Trust and so long as Shebait manages the Temple property, the right to sue vests with him to the exclusion of any person's right to sue on behalf of Temple. Distinction is also sought to be drawn between the Trust as defined in English law and role of Trustee distinguishable than a Mahant managing Hindu Math to whom property is endowed.
25. In a nut shell the Hindu Idol becomes the owner of the entire endowed property and a Shebait or a Trust becomes custodian thereof to the extent of management with certain portion of it for the Shbait to survive as Manager of the property but this certainly will not be for a Trustee in case of Trust. A worshiper/ pujari has been defined with a status of a servant to be appointed by Shebait and does not enjoy any right independent of a Shebait.
26. Applying the above exposition of law as discussed and laid down in Ram Janmabhumi case to the facts of the present case, looking to the pleadings raised in injunction suit as discussed in earlier part of this judgment, I do not see Mr. Naresh Chandra Agarwal to be having a status of a Shebait to raise serious dispute of title.
27. The law is well settled that Section 23 of the Small Cause Courts Act is not a provision that makes obligatory for Small Cause Courts to invariably return the plaint once a question of title is raised by a tenant. The principle is that even the Small Cause Court can incidentally go into the title. In Budhu Mal v. Mahabir Prasad and others, (1988) 4 SCC 194 vide para 10 the Court observed thus:
"10. It is true that Section 23 does not make it obligatory on the court of small causes to invariably return the plaint once a question of title is raised by the tenant. It is also PG NO 243 true that in a suit instituted by the landlord against his tenant on the basis of contract of tenancy, a question of title could also incidentally be gone into and that any finding recorded by a Judge, Small Causes in this behalf could not be res judicata in a suit based on title. It cannot, however, be gainsaid that in enacting Section 23 the Legislature must have had in contemplation some cases in which the discretion to return the plaint ought to be exercised in order to do complete justice between the parties. ................................... If the suits cannot be construed to be one between landlord and tenant they would not be cognizable by a court of small causes and it is for these reasons that we are of the opinion that these are such cases where the plaints ought to have been returned for presentation to appropriate court so that none of the parties was prejudiced."
(Emphasis added)
28. In this regard it is also necessary to refer to the judgment of this Court in the case of Pratap Singh v. IXth Additional District Judge, Fatehpur and Ors, 2000 (3) AWC 1995 in which vide paragraph nos. 6 & 7 of the judgment it has been held thus:
"6. A Small Causes Court is expected to try suits of a comparatively simple character and, therefore, suits involving question of title should not be entertained by that Court. Section 23 is intended to enable the Courts of Small Causes to save their time by returning the plaints in suits which involve enquiry into the question of title. This section is designed to meet the cases in which Judge, Small Causes Court is satisfied that the question of title raised is so intricate and difficult that it should not be decided summarily but in ordinary Court in which evidence is recorded in full and the decision is open to appeal. The underlying principle under Section 23 seems to be that where it is considered advisable by a Small Causes Court that a final decision on a question of title, which decision would. if given by an original Court. ordinarily be subject to appeal and even to second appeal and which decision would ordinarily be res judicata between the parties, should be given in the particular case before a Small Causes Court, by an original Court, the Small Causes Court though competent to decide incidentally the question of title in that particular case might exercise with discretion. the power of returning the plaint to be presented to the original Court which would have jurisdiction to so decide on that title finally. Obviously, the section is designed to meet the cases in which the Judge. Small Causes Court is satisfied that the question of title raised is so intricate and difficult that it should not be decided summarily but in an ordinary Court in which evidence is recorded in full and decision is open to appeal.
7. Section 23 is framed in optional terms giving discretion to the Court to act in the matter or not. and therefore, in suits involving question of title, the Small Causes Court has a discretion either to decide the question of title or to act under this section and return the plaint. It is not always bound to return the same. Nevertheless, when any complicated question of title arises. it would be the wiser course for Small Causes Court in the exercise of its discretion to act under Section 23 and return the plaint."
(Emphasis added)
29. In view of the above, a mere reference of a case where a party has just instituted a suit for injunction would by itself not become a title dispute. The Small Cause Court shall have to apply its mind to the facts pleaded in the case. Once Mr. Naresh Chandra Agarwal, in a judicial proceeding while applying for bail, himself admitted that he was not in any manner the Manager of the Temple, there was no occasion for a tenant to raise a title dispute as a third party, to non-suit the plaintiff in SCC case. The defendant/ petitioner admittedly is a tenant and he has not raised any title dispute as to his status. Therefore, it becomes a question how a tenant can non-suit the plaintiff in an eviction suit on the ground that someone has instituted a suit for injunction. Even if remotely some dispute is there, if accepted for argument sake, the tenant does not get a right to stay back in the tenanted premises opposing the eviction suit.
30. In view of the above, I do not see any error apparent on the face of record or any such manifest error otherwise committed by the trial court and the court sitting in revision in dismissing the application under Section 23 of Small Cause Court Act which may warrant interference in my supervisory and superintending jurisdiction under Article 227 of the Constitution.
31. Petition fails and is accordingly dismissed.
Order Date :- 2.5.2024
IrfanUddin
