Andhra Pradesh High Court - Amravati
Uttaradi Srivaishnava Mutt Moola ... vs The Collector, on 30 April, 2022
THE HONOURABLE SRI JUSTICE D.RAMESH
APPEAL SUIT No.361 Of 2012
ORDER: -
1. Heard Sri Y.V. Ravi Prasad, senior counsel appearing for
Sri P.Rajasekar, learned counsel for the appellant and of Sri
T.Laxmi Narayana, counsel appearing for Sri Dorai Raj, learned
counsel for the respondents.
2. The appellant herein is plaintiff-Mutt filed the present
appeal, aggrieved by the decree and judgment in O.S.No.439 of
2005 dated 10.04.2012 passed by the Additional Senior Civil
Judge, Tirupati.
3. For sake of convenience, the appellant herein is referred to
be as plaintiff and the respondents herein referred to be as
defendants. The brief facts of the case and observations of the
court below are as follows:
4. The plaintiff is a Mutt. The plaintiff filed a suit for
declaration of plaint schedule properties 'A' and 'B' as they are the
absolute properties of the plaintiff-Mutt and for granting
permanent injunction, restraining the defendants not to interfere
with peaceful possession and enjoyment of the suit properties.
5. The case of the plaintiff is that- Uttaradhi Srivaishnava Mutt
popularly known as Moola Mutt has been in existence for the past
100 years in Tirumala. Mutt was started with an intention to meet
the needs of Vaishnava cult. The idols of Lord Srirama, Lord
Seetha, Lord Lakshmana and Lord Anjaneya were consecrated in
the said Mutt and that Nithya Deepa, Naivedya Aradhana are
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being performed to the deities. The pilgrims visited Tirumala
would necessarily come to the Moola Mutt and worship deities and
the Mutt is also providing free meals and free accommodation to
the pilgrims and Sadhus. One Poojari, five Sadhus and five
attenders are permanently staying in the Moola Mutt to look after
the affairs. The founder of the Mutt his Holiness Mahant
Ramnarayanacharya Swamiji strived for development. In the year
1912, two properties were gifted by Jagannadha Ramanujadass
under gift deeds dated 07-03-1912 and 17-03-1912 and third
property was gifted by Sri Rama Swaroop Agarwal under gift deed
dated 12-02-1912.
6. In the year 1925, Swamiji Ramnarayanacharyaji as grantor
executed a deed on 10-12-1925 and settled the above properties to
the Swamiji Badri Papannacharyaji as successor to the trust and
carry on the object of Moola Mutt, he was possession and
enjoyment of the same. In the year 1957, the said Swami Badri
prapannacharyaji executed a Will on 4-7-1957 appointing Swamiji
Harivamshacharya as his lawful descendant and owner of the
movable and immovable properties under his control. Sri Swamiji
Badri Prapapnnacharya died on 02-08-1957 since then Swamiji
Harivamshacahariji being the legal successor took possession of
the Mutt properties and he is exclusive possession and enjoyment
of the same.
7. Subsequently, some of the properties were acquired by the
Land Acquisition Officer of Tirumala Tirupati Deasthanams for
widening of the roads in Mada Streets, Tirumala and other
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purposes and that the Tirumala Tirupati Devasthanam given "A"
and "B" schedule properties on 15.03.1999 and on 19-10-2004.
With the approval of the competent authority of Tirumala Tirupati
Devasthanam said Moola Mutt was constructed and idols of Lord
Lakshmi Narasimha Swamy, Lord Srirama, Lord Seetha, Lord
Lakshmana and Lord Anjaneya were reinstalled by conducting
religious rites and also constructed rooms with the donations of
devotees. Sundareswar Acharya was the General Power of
Attorney holder of the Mutt and his name was mentioned in the
electricity bills and that the bills are being paid towards Mutt.
8. While that being position, the 1st defendant has appointed
the 2nd defendant as a new Manager and in charge of the Moola -
Mutt in place of existing General Power of Attorney of the plaintiff
on 11-08-2005 with malafide intention to harass the plaintiff.
Another letter was issued by the 1st defendant to the Executive
Officer, Tirumala Tirupati Devasthanam stating that the
Government of Madhya Pradesh superseded the Managing
Committee of Lakshman Bagh Sansthan, Rewa, Madhya Pradesh
and removed Sri Harivamshacharya from the post of Mahanth of
Lakshman Bagh Sansthan, Rewa. The District Collector, Rewa
appointed as administrator of Lakshman Bagh Sansthan, Rewa
including the Moola Mutt, Tirumala.
9. The plaintiff/appellant herein has submitted reply to the
letter sent by District Collector, Rewa dated 27.10.2005 stating
that the plaintiff Mutt, is not vested with the Lakshman Bagh
Sansthan, Rewa and that the defendants have no right over the
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said properties. Even according to the agreement entered between
the State Government of Madhya Pradesh and the committee
constituted under the State Government, the properties and group
temples under the management and control of the committee was
clearly specified. The properties gifted to the plaintiff's Mutt are
not covered by the said agreement.
10. The second defendant under the guise of the orders dated
27.05.2005 interfering with the activities of the plaintiff/appellant
influencing the Tirumala Tirupati Devasthanam officials and
revenue officials of Chittoor, so also requesting help of the local
police officers to take possession of the plaint schedule properties.
When they made attempts to dispossess and to take possession of
the schedule properties on 06-11-2005 at about 10-00 a.m. by the
2nd defendant, the plaintiff resisted their acts. Hence, the plaintiff
prayed to grant permanent injunction against the defendants.
11. Refuting the said averments, the defendants have filed their
written statement. According to the written statement, said Moola
Mutt in Tirumala has been in existence for the past several years
to meet the needs of Uttaradi Srivaishnava devotees come from
North India. The plaintiff -Mutt is part and parcel of parental Mutt
by name Lakshman Bagh Sansthan with the head quarters of
Rewa in Madhya Pradesh. In view of the document executed on
10.12.1925 by Sri Ramnarayanacharyaji in favour of the
Badriprapanna charyaji to succeed Mahanthship to manage the
properties clearly shows that the Management of properties were
entrusted and not as the personal properties of any of them. Badri
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Prapannacharyaji succeeded by Swami Janardhanacharyaji and
executed a Will dated 4-7-1957 by naming his successor
Harivamshacharya who became the Mahanth against the custom,
usage and tradition of succession to the Mahanthship and the said
Will is only valid to the extent of power nomination of
Harivamshacharya by Sri Badrapapannacharyaji and cannot effect
the title of the properties mentioned in the will.
12. Rewa was princely State of Central India. From times
immemorial Lakshmanji was being worshiped as God in that
region. A temple of Lakshmanji was built in Rewa by the then
Maharaja Viswanath Singh and the place was named as
Lakshmanbagh. The successor, Maharaja Raghurajsingh
dedicated certain villages and huge properties to Lakshmanbagh
and his Rajaguru Swamy Mukundacharya was installed as head of
that institution. He was the first spiritual Guru of Lakshmanbagh,
after the death of Swamy Mukundacharya, Sri Lakshmipapanna
charya succeeded him; Swamy Lakshmipapanna charya was
removed from his office for some time by the Ruler and again
reinstated by the Ruler Maharaja Gulab Singh on 6-7-1945 on
condition that he would manage the institution properly and shall
have right to appoint another manager with the consultation of the
Minister-in-charge. Thereafter he has executed a Will on 4-7-
1957 nominating Harivamshacharya as successor and died on
2-8-1957. In the year 1920, the Management of Lakshmanbagh
Samsthan was in the hands of committee appointed by Darbar.
Swamy Badrapapannacharyaji was one of its members.
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Subsequently agreement dated 30-3-1954 arrived between the
President of India and Chairman and members of the Committee.
After the death of Badriprapannacharyaji the state Government of
Mahdya Pradesh appointed Swamy Raghavacharya as Mahanth of
Lakshmanbagh vide orders dated 20.10.1958. The said
appointment was challenged by Harivamshacharya asserting his
rights styling himself as Mahanth of Samsthan and challenged the
power of State Government to appoint Mahanth. The trial court
dismissed the said suit, on the file of the I Additinal District Judge,
Rewa and numbered as Civil Suit No.7A/1971 holding that
Harivamshacharya is a family man and not a Virkth and celibate,
which is pre-requirement to become as Mahanth of Samsthan.
Harivamshacharyaji aggrieved by the judgment, filed an appeal
before the High Court of Madhya Pradesh at Jabalpur and the
same was numbered as Appeal No.260/1973 filed against the
Judgment in Civil Suit No.7A/1971, which was dismissed with
clear observation that he was not eligible to appoint as Head of the
Samsthan. Consequently his claim for Mahanthship was denied to
him. The committee appointed by the State Government, in which
the Mahanth of Lakshmanbagh is a member is only entitled to
manage the temple/Mutt and their properties with the help of
members of the committee and not otherwise.
13. The Madhya Pradesh Government Dharmik Nyaya and
Dharmaseva Department in proceedings No.F.7/50/2000/DHHA
the said Harivamshacharyaji was removed from Mahanthship of
Lakshmanbagh, dated 27.01.2005, on that the Collector, Rewa
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addressed a letter to Principal Secretary, Madhya Pradesh
Government, who is the 1st defendant, for take over the charge of
Lakshmanbagh Sansthan, which is under the custody of Madhya
Pradesh Government.
14. In view of the said proceedings, the plaintiff is not a
Mahanth, he is only a care taker of Samsthan appointed by
Harivamshacharyaji, and said Harivamshacharya was removed by
both Judicial pronouncement and the State Endowment
Department, his General Power of Attorney came to an end by
removal of Harivamshacharya and that the plaintiff has no locus
standi to file this suit.
15. As the plaintiff is in possession and enjoyment of the plaint
schedule property only as care taker of Samsthan, appointed by
Harivamshacharyaji, who is removed for misfeasance and the
other allegation that the suit properties are not covered by the
agreement dated 30-3-1954, and that the defendants are
influencing revenue officials as well as police officials, to take over
the possession and control of the Mutt is denied. Action taken by
the defendant is under the authority given by the statutory body
and Government control. The plaintiff is in illegal occupation,
ever since the removal of Harivamshacharya as a Mahanth of
Lakshmanbagh Samsthan, under his G.P.A. the plaintiff cannot
resist the claim of the defendants. Hence, requested to dismiss
the suit with the above pleadings.
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16. In support of the pleadings, Exs.A1 to A18 were marked on
behalf of the plaintiff/appellant, Exs.B1 to Ex.B31 were marked on
behalf of the defendants.
17. Basing on the above pleadings, learned judge in the court
below has framed the following issues:
1. "Whether the plaintiff is entitled for declaration that he is the
absolute owner of the plaint "A" and "B" schedule properties?
2. Whether the plaintiff is entitled for permanent injunction as
prayed for ?
3. Whether the suit is maintainable without notice under Section
80 of the C.P.C.?
4. Whether this court has got jurisdiction to decide the plaintiff's
claim for Mahanthship?
5. Whether this court has got pecuniary jurisdiction to entertain
the suit?
6. To what relief?"
18. While considering the issue No.1, the court below strangely
held that the plaint-Mutt is a part of Lakshmanbagh Samsthan,
by taking contents of Para No.11 of the plaint that the plaintiff is
in possession and control of various other Mutt and properties
spread in other parts of India and also holding the post of
Mahanth of Lakshmanbagh Sansthan, Rewa District, Madhya
Pradesh. Hence, said plea clearly and clinchingly goes to show
that the Mahanth appointed to Lakshman Bagh Sansthan, Rewa
District, Madhya Pradesh is also Mahanth of the plaintiff Mutt. If
really the plaintiff Mutt is an independent Mutt, the averments
made in part No.11 of the plaint, is not correct. Further by taking
Ex.A1, dated 07.12.1925, executed by Sri Mahanth
Ramnarayanacharya swamy in favour of Badrapapannacharya
Swamy of Lakshmanbagh Rewa, in respect of the properties
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situated at Mohanbagh in Badrinarayana Mountains, Gadawala
District at Joshi Mutt, Podhi Taluk, so also the properties
mentioned in para 4 of the plaint. If really the plaintiff's Mutt is
an independent Mutt there is no possibility of reference of
Lakshmanbagh Samsthan and also the properties situated outside
of State of Madhya Pradesh. Further, the grantor under Ex.A1,
gave right to the Badriprapapanna Swamiji as Mahanth of
Lakshmanbagh Samsthan, Rewa of Madhya Pradesh. Therefore,
declared that the plaintiff-Mutt is not an independent Mutt.
19. Further the court below observed that the contention of the
defendants that Raja guru Mukundacharya was installed as Head
of Lakshmanbagh Samsthan. After the death of Swamy
Mukundacharya, Sri Lakshmiprpapanna charya succeeded him.
Subsequently, on his death, Swami Janardhana Charya and
thereafter Swami Badraprapanna charya were succeeded.
Thereafter PW.1/Harivamshacharya was appointed as Mahanth.
Said appointment has to be ratified by the Maharaja or concerned
Department of the State Government. As admitted by PW.1 in his
cross-examination, about the construction of temple by Maharaja
Viswanath Singh and Swamy Mukundacharya was the Raja guru
of Lakshmanbagh Samsthan. Lakshmi Papannacharya succeeded
Mukundacharya. Swami Janardhanacharya was succeeded and
thereafter, Badrapapanna charya succeeded Janardhanacharya.
Further PW.2/Madhava Das admitted that under Ex.A2, he was
appointed as successor of Mahanthship Lakshmanbagh
Samsthan, is subject to approval of Maharaja. But Maharaja was
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not approved the Mahanthship of PW.1. Hence, he is not a
Mahanth of Sri Lakshmanbagh Samsthan.
20. Further the court observed that if the plaintiff Mutt is an
independent Mutt, it has to be registered under A.P.Charitable and
Hindu Religious Institutions and Endowments Act, 1987 (Act 30 of
1987), Section 6 of the said Act states about the preparation and
publication of list of Charitable and Hindu Religious Institutions
and Endowments on the basis of income. Clause-D shows with
regard to the Mutts irrespective of income. Admittedly the
plaintiff's Mutt is not registered under the said Act, if it is
independent Mutt, it ought to have registered as per section 6 of
the Act 30 of 1987 or section 49 of the old act.
21.. As per Section 49 of the Act 30 of 1987, Muttadipathi of
every Mutt shall submit to the commissioner within a period of
ninety days from the date of commencement of this Act or the date
of founding of such Mutt, proposal for fixation of Dittam in the
Mutt. But no proposal was sent either by PW.1 or his predecessor
Mahanth under Act 30 of 1987 or old act. Therefore, it can be said
that the contention of the plaintiff that the plaintiff's Mutt is an
independent Mutt and not relates to the Lakshmanbagh Samsthan
is not correct.
22. It is contended by the plaintiff that Mutt was not shown as
Ex.A3 and Ex.B9/agreement between the Lakshmanbagh
Samsthan and the committee of Government. The admissions
made by DW. 2 and DW.3 show that the plaintiff Mutt was not
shown in Ex.B9/Agreement. Therefore, Lakshmanbagh Samsthan
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has no relationship with plaintiff's Mutt. Once, the admission is
made, it has to be considered. Considering the said
submissions, Ex.A3 and A9, the two documents are one and the
same i.e., agreement dated 30.03.1954 between President of
India on one part and the statement of members of the committee
constituted by State Government to Manage the properties and
affairs of the Lakshmanbagh Samsthan, in which it is mentioned
about the properties of temples within the state and out of state of
Madhya Pradesh. Ex.B-9 does not cover Moola Mutt. As per the
documents filed by the defendants there is an understanding that
some of the Mutts and temples have to be maintained by Swamiji
Mahanth, which were not covered by Ex.B9, it is evidenced by
Ex.B12 about the list of the properties received by Sri Swamiji
Maharaja in Chadhotri. Sl.No.6 relates to Moola Mutt i.e.,
plaintiff. On perusal of Ex.B10, letter addressed by the Collector,
Rewa, Madhya Pradesh to inspect the Dharmastan Lakshmanbagh
outside of the state and their properties.
23. As per Ex.A16 shows hat Chaturbujacharya, Manager of Moola
Mutt died on 28.04.2001 and in his place Sri Lakshmana charya was
appointed as sole Manager to look after the affairs of Moola Mutt by
Sri Swami Maharaja, Lakshmanbagh, and Rewa. Ex.B20 shows
about the orders passed Mahdya Pradesh Dharmika Nyas and
Dharma Sheva Department, Manthralaya, Bhopal in January, 2005
shows that the Collector Rewa, an enquiry was ordered on the
complaints received against PW.1. The Collector, Rewa also took
possession of the charge of Lakshmanbagh Samsthan, Rewa
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administration on 27.01.2005 after noon. It is evidenced by
Ex.B21. In pursuance of the taking of the administration of
Lakshmanbagh Samsthan by the District Collect and District
Magistrate, Rewa, a letter was addressed under Ex.B23 to the District
Collector, Chittoor to provide police assistance to Srinivasa Sukla i.e.
DW-3 who was appointed under Ex.B19 to take possession of the
plaintiff's Mutt.
24. Considering the above contentions, the issue was answered
against the plaintiff and other issues, issue No.2 to 6 have taken for
consideration and decided jointly as single issue.
25. The court below further observed that by taking the
observations passed by the II Additional District Court, Rewa in Civil
suit No.7A/1971 that PW.1 is not entitled to appoint as Mahanth, an
enquiry was also conducted for the allegations levelled against PW.1
by the District Magistrate, Rewa. Suppressing all these effects, the
plaintiff filed this suit as if the plaintiff's Mutt is an independent Mutt
and it is no way connected to Lakshmanbagh Samsthan for
declaration of right and title and for consequential relief of permanent
injunction. Hence, the person, who comes the court, shall come with
clean hands and true facts and PW.1 filed this suit by suppressing the
material facts.
26. Considering the evidence of PWs.2 to 5, no prudence can be
given to his testimony, therefore, the plaintiffs, no prudence to be
given to the evidence given by PW.2 to 5 and with regard to the notice
under Section 80, the court below has observed that there was
exchange of notices Ex.P26 letter addressed by the Swamy Sri
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Lakshmana Charya G.P.A holder of Moola Mutt to District Collector,
Rewa on 27.10.2005 shows that Moola Mutt in Tirumala does not vest
with the Lakshmanbagh Samsthan, Rewa.
27. Further the court below held that issue No.4 is not framed
properly as there is no relief sought by the plaintiff to decide the
Mahanthship. Suit is filed with regard to the properties situated in
Tirumala, therefore, this court has got jurisdiction to entertain the
suit. In view of the aforementioned reasons, the suit filed by General
Power of attorney holder of the Moola Mutt for declaration of right and
title in respect of the suit "A" and "B" schedule properties is liable to
be dismissed. Consequently, the General Power of attorney holder is
not entitled for permanent injunction.
28. Learned senior counsel appearing on behalf of the
appellants/plaintiff's while assailing the said judgment, mainly relied
on the following grounds:
(1) The Lower Court ought to have seen that admittedly the rulers of
erstwhile Rewa District have donated certain properties to Sri
Lakshmanbagh Samsthan. In as much as Rewa District of Madhya
Pradesh was a Princely State of Central India, there was an agreement
between the President of India and the Committee constituted for the
purpose of management of Sri Lakshmanbagh Samsthan under Ex.A3,
dated 30.03.1954 declaring the property donated by the rules of Rewa
District are the personal properties of Sri Lakshmanbagh Samsthan.
Admittedly, the properties of the Appellant Mutt are not subject matter of
said Agreement Ex.A3 ad the same were absolutely belonged to and vest
in, the lower court ought to have seen that originally, in he year 1912
under three registered Gift Deeds the properties mentioned in Para 4 of
the Plaint situated in made Street, Tirumala had been donated to Sri
Ramnarayanacharya Swamiji. The said Swamiji made the said property
form part of the Appellant Mutt and managed the Mutt as being the
Trustee of the Mutt. Thus the properties had been dedicated to the deity
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Lord Lakshmi Narasimha Swamy and was belonged to and vested in the
said deity. Thus the Appellant Mutt is the absolute owner and possessor
forth property.
(2) The Lower Court ought to have seen that Sri Ramnarayanacharya
Swamiji who was the fonder/grantor had executed a registered document
Ex.A1, dated 10.121925 whereby and where under he had nominated Sri
Badri Prapannacharya Swamiji as his successor for the purpose of
management of the Appellant Mutt as being the Trustee of the Mutt. The
legal effect of the said document had been clearly established that the
properties of the Appellant Mutt had not been vested with the Sri
Lakshmanbagh Samsthan, Rewa District Madhya Pradesh. The
respondents/defendants have also admitted the said document in all
respects and hence, the Trial Court committed an error in considering
the legal effect of recitals therein according to law.
(3) The lower court ought to have seen that Sri Badri prapannacharya
Swamiji, who was nominated as a Trustee of the Appellant Mutt under
Ex.A1, was also Mahanth of Sri Lakshmanbagh Samsthan, Rewa District
and had managed both the institutions along with other institutions
independently. The budgetary allocation of expenditure of the respective
Mutts including the Appellant Mutt have been separately delt with as
could be seen from the proceedings under Ex.A14 to A18. Thus, the
Appellant Mutt is not part and parcel of Sri Lakshmanbagh Samsthan,
Rewa District as contended by the respondents/defendants. The Trial
court has committed an illegality in not considering the said material
documents Ex.A1 to A3 and A14 to A18 and erred in its concussions.
(4) The deity of Sri Lakshmi Narasimha of Appellant Mutt.
(5) The Lower Court ought to have seen that the observations made in Para
9 of the Judgment are unwarranted. The Appellant Mutt has always
been claiming/asserting its ownerships, possession over the suit
schedule priorities and a mere reference as to the properties of other Sri
Vaishnava Cult Mutts in Ex.A1 does not in any way affect the rights of
the Appellant Mutt over its properties. The Trial Court also misread and
misinterpreted the recitals under Ex.A1 and erred in holding that Sri
Badri Prapannacharya Swamiji, Mahanth of Sri Lakshmanbagh
Samsthan, Rewa was given right over the properties. Thus, the
observation of the Trial Court in the said paragraphs\ that the Appellant
Mutt is not an independent Mutt is illegal and contrary to the material on
record.
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(6) The lower Court ought to have seen that the Appellant Mutt is a
private mutt and it is not governed by the provisions of A.P.
Charitable and Hindu Religious Institutions and Endowments Act,
1987. The said provisions have also no application and gives any
right to the respondents to appoint In charge/Manage to the
appellant Mutt. They can appoint any person/in charge to their Mutt
to Sri Lakshmanbagh Samsthan situated within their territorial
jurisdiction. The respondents have no control over the Appellant
Mutt in any manner according to law.
(7) The lower Court ought to have seen that for the purpose of
appointment of a Trustee to the Appellant Mutt, the approval of
Maharaja of Rewa District is not necessary in as much as the
properties belonged to the Appellant Mutt and they are not donated
by the said Ruler of Rewa District. Thus the Appellant Mutt can
appoint the Trustee of its choice and the same cannot be taken away
by the Respondents/Defendants more so, when the Appellant Mutt is
an independent Mutt and has not been amalgamated with the Sri
Lakshmanbagh Samsthan, Rewa.
(8) The Lower Court ought to have seen that a reading of Ex.A1 to A3,
A14 to A18 categorically established that the Appellant Mutt is not
vested with the Sri Lakshmanbagh Samsthan, Rewa. The Trial Court
failed to consider the relevant material on record and erred in
dismissing the suit basing on irrelavant, unproved and inadmissible
documents.
(9) The Lower Court ought to have seen that the Appellant Mutt has been
represented by its GPA holder. Copy of the GPA was filed along with
the plaint. PWs.1 to 5 have categorically stated about the execution of
GPA and the respondents haven to raise any objection in their written
statement or in the trial. The Trial Court permitted the Appellaalnt
Mutt being represented by its GPA. Mere non-filing of GPA is not fatal
to the case of the Appellant Mutt and it is only a curable defect. The
Trial court also permitted appellant to represent by its GPA holder and
hence, there was a deemed permission in favour of the Appellant Mutt
to institute the suit through its GPA. Hence, the Court below erred in
observing that the copy of GPA was not marked etc. It is also
necessary to state here that GPA holder can deposit as a witness and
he cannot be equated to that of a party witness and hence, non-
examination of GPA holder is also not fatal to the case of hte Appellant
Mutt according to law."
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29. Based on the above stated grounds, learned senior counsel has
submitted that the court below erred in holding that the plaintiff Mutt
is not an independent Mutt and it is part and parcel of the
Lakshmanbagh Samsthan and on perusal of the issues framed by the
court below, the issue with regard to declaration of Mutt was not
framed. Without framing an issue, the court below has declared the
the plaintiffs/Mutt is a part and parcel of Lakshmanbagh Samsthan
and hence, the 1st issue was held against the plaintiff.
30. Learned senior counsel to substantiate that the plaintiff mutt is
independent Mutt, it is not part and parcel of the Lakshmanbagh
Samsthan has submitted the following facts:
31. The petitioner Mutt-Uttaradi Srivaishnava Mutt @ Moola Mutt is
founded by Ramnarayanacharya in 1912 for promoting Vyshanva cult
by installing the idols of Lord Sri Rama Lord Seetha, Lord Lakshmana
and Lord Anjaneya and Lord Lakshmi Naraswamtha Swamy in the
Mutth. In the year 192, Swamiji Ramnarayanacharya made a
registered gift deed, marked Ex.A1, and appointed Sri
Badripapannacharya Swamiji to look after the affairs of the Mahanth
as trustee. Said Badripapannacharya was also Mahanth of
Lakshmanbagh Samsthan, Rewa, Madhya Pradesh. In the said
document Ex.A1, all these properties shall belongs and vests in the
Mutt deity Sri Lakshmi Narasimha Swami. Said Badripapanna
Swamiji shall be a trustee there of and the successor of the trust shall
be the same as the line of secession to the said trustees Peetha.
32. In view of the contents of Ex.A1, the properties were vested with
the deity and Badriprapannacharya, who is a trustee of Moola Mutt
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has executed a will on 10.07.1957 in favour of Harivamshacharya as
his lawful successor. In the said will, Sri Badriappannacharya
swamiji has also a descendant management of Moola Mutt along with
its properties and the Badrpapannacharya swamiji is died on
02.08.1957. After his demise, Sri Harivanshacharya has been
Managing the properties of Moola Mutt in his place and the same was
also admitted by the defendants.
33. Learned senior counsel has submitted that the crucial
documents, which is required to be considered to decide this issue, is
the agreement entered in between the Government of Madhya Pradesh
in the name of President of India and managing committee of
Lakshmanbagh dated 13.03.1954. But surprisingly without
considering the contents of the agreement dated 30.03.1954, the
court below has held that the petitioner Mutt is part and parcel of
Lakshmanbagh Samsthan. Though reliance is placed on page 20 of
the judgments, with regard to Ex.A3/B9, but no contents were taken
while deciding the issue by the court below.
34. Learned senior counsel heavily relied on the recitals of the said
agreement, which clearly demonstrates that the petitioner Mutt is not
part and parcel of the Lakshmanbagh Samsthan and the main
contents of the agreement are extracted as follows:
" AND WHEREAS it has now been decided by the government that
all the properties movable and immovable (but not including Jagir lands) at
one time belonging to the Lakshman Bag Institution and at preset in
possession of the Government should be restored with effect from
01.04.1954 to a Committee (herein after referred to as the Committee)
consist -
.....
Now therefore, this deed of agreement witnesseth as follows namely:-
(1) As from the 1st April, 1954, the committee shall became entitled to posses
and manage the immovable and movable properties both as detailed in
the schedule annexure to this document.
(2) The committee shall from the aforesaid date maintain the Lakshman Bag
Samsthan as well as other temples attached to it and termed as,
'Lakshman Bag Group of temples'.
(3) ...
(4) ..
(5) That the committee shall observe and be bound by the following
conditions:-
(i) That the annual budge showing probable receipts and expenditure will be
send to the Government for scrutiny and prior approval. Necessary
provisions will be made in the budge so that not less Rupees one
thousand per mensem is spent on the Sanskrit Pathashala, in which
education shall be imparted up to Madhyama stage and the balance on
maintenance and repairs of the temples and the current charges
consisting of Rag Bhog and Sewa Puja of the deities Sadabarjag
Hospitality, Gowshala and pocket expenses (Ahar and Byohar, Pilgrimage
and maintenance of position (Maryada of the Mahant).
....
(iv) Separate Register shall be maintained by the Executive Officer appointed
by the Committee showing :
(a) The name and the salary of the persons appointed in each
temple;
(b) The jewellery, gold, silver, precious stones, utensils and other
movable, belonging to each temple with.
(c) The title deeds and other important documents relating to any
property of the Institution, and
(d) Other important documents relating to the Institution.
(v) Regular account of receipts and disbursement shall be maintained and
such accounts shall be audited annually or at such other intervals as may
be required by the auditors appointed by the Government.
SCHED ULE
SCHEDULE OF PROEPRTY TO BE HANDED OVER TO THE
LAKSHMAN BAG COMMITTEE PRESIDED BY SHRIT SWAMI JI BADRI
PRAPANNACHARYA, MAHANT LAKSHMANBAG."
1. TEMPLES WITH THEIR MOVABLE AND IMMOVABLE
PROPERTIES
EXCLUDING JAGIR LANDS
(a) Name o f the temples withi n Vindhy a Pradesh
Place where situated
1. Sthan Lakshman bag Rewa
2. Raghunath Ji Remar (Satna)
3. Mahranwala Bichhiya (Rewa)
4. Choupra Rewa
5. Akharghat Shri Jagannath Ji Rewa
6. Mathura Nath Uparahati (Rewa)
7. Pradhananwala Uparahati (Rewa)
8. Ram Krishna Marariha Uparahati (Rewa)
9. Vaidan Wala Uparahati (Rewa)
10. Khakhri Rewa
11. Pandentola Rewa
12. Pandentola Rewa
13. Bhandariwala Rewa
14. Hanuman Ji Chirahula (Rewa)
15. Ramnath Ji Govindgarh (Rewa)
16. Panchmandir Govindgarh (Rewa)
17. Harchand Rai Govindgarh (Rewa)
18. Shital Dwip Govindgarh (Rewa)
19. Jagannath Ji Makundpur (Satna)
20. Durbali Govindgarh (Rewa)
21. Hanuman Ji Lakshmanpur (Rewa)
22. Balramgarh bakna Bakna
23. Krishnagarth Jhalwara (Satna)
24. Chormari Chormari (Satna)
25. Mauhari katra Mauhari Katra (Satna)
26. Amarpatan Amarpatan (Satna)
27. Bailkunthpur Baikunthpur (Rewa)
28. Semariya Semariya (Rewa)
29. Mangawan Mangawan (Rewa)
30. Halwai Wala Ram Nagar (Satna)
31. Damodardas Wala Ram Nagar (Satna)
32. Chandela Chandela (Shahdol)
33. Bandhavadhish Bandhogarh (Umariya)
34. Laxminarayan Chitrakut (Satna)
(B) OUT SIDE VINDHYA PRADESH
1. Radhamohan Chitrakut (Banda)
2. Rani Mandir Daraganj (Allahabad)
3. Ram Bhawan Daraganj (Allahabad)
4. Sawaman Shal Gram Brindrawan
5. Shri Ramanuj Kut Badri Nath Badrinath (Garhwal)
6. Rewa Kshetra (Shri Jaganath Puri) Puri
7. Bari Baghele Jodhpur
8. Chhota Baghela Jodhpur
9. Braham Shila Fatehpur
10. Haridwar Rajghat Kankhal (Haridwar)
11. Chhatrapl Garh Chhatrapal Garh
12. Hanumanji Indara Kuwa (Delhi)
13. Raghunath Ji Ram Das Daraganj (Allahabad)
(ii) Stock articles including jewellery pertaining to Lakshman Bag Insitution kept
with Deputy Commissioner, Rewa and in the Bhandar of His Highnesss Rewa.
(iii) Gardens pertaining to the Lakshman Institution which are at present
managed by the deputy Commissioner Rewa.
(iv) Deposit balance of the Lakshman Bag Institution in the Bank of Baghelkhand
Rewa."
35. Learned senior counsel has submitted that the very basis of the
defendants to claim over the plaintiff-Muttt is based on the above said
agreement. On perusal of the agreement it clearly discloses that
Lakshmanbagh institution, Rewa is in possession of considerable
immovable properties, and had also manage certain temples within
and outside the Vindhya Pradesh. According to the above clause,
from 1st April, 1954 the committee shall became entitled to possess
and manage the immovable and movable properties both as detailed
in the schedule annexed to the said document.
36. On verification of the scheduled properties which are to be
handed over to the Lakshmanbagh Samsthan Committee part A deals
with the temples within Vindhya Pradesh. Part B deals with outside
Vindhya Pradesh. In part-B, there are 13 properties/temples were
noted down but the petitioner Mutt was not included in the schedule
annexed to the said agreement. Hence, the agreement entered in
between the state government and the Management committee of the
Lakshmanbagh is not binding on the plaintiff's mutt and it can also
be construed that the petitioner Mutt is not part of the
Lakshmanbagh Mutt.
37. Learned senior counsel has submitted that in the year 1925, Sri
Ramanarayana Charyaji has executed a will on 10.12.1925 settled the
above properties to the Swamiji Badri Prapannacharyaji as successor.
In the said will, it clearly discloses that the properties belongs to Mutt
are the properties vests with the deity Sri Lakshminarasing Bhagavan.
Genesis for the rights over the property in favour of Sri Badripapanna
swamiji is only through 1925 Will executed by Sri
Ramnarayanacharyaji. Even according to the said will executed in
favour of Sri Badriprpapanna Swami is only a trustee of the said
prosperities and the properties are vests with deity Sri Lakshmi
Narasimha Bhagavan, subsequently Sri Swami
BadriPrapannacharyaji has executed a Will on 04.07.1957 appointing
Swami Harivamsha charya, as successor of trustee for the Moola Mutt
along with Mahanth as Lakshmanbagh Samsthan.
38. Learned counsel for the petitioner further argued that perusing
the contents of all the three documents i.e. A1, A2 and A3, it can
safely be construed that the properties are vests with deity Sri
Lakshmi Narayana Bhagavan. Sri Badri Prapannacharya Swamiji is
appointed as trustee of the said properties by virtue of Ex.A1 and in
Ex.A2, Sri Harimvamshacharya has appointed by
BhadraPrapannacharyaji and the existence of said documents were
not denied by the defendants.
39. On perusal of Ex.A3 it goes to show the committee constituted
as per the agreement dated 30.03.1954, shall entitled to possess and
manage the properties, which were included in the schedule annexed
and the Moola Mutt/plaintiff Mutt is not included in the schedule.
40. Learned senior counsel further contended that the
correspondence between the Government Vindhyapreadesh, Rewa
and the Chairman, Trust Committee Lakshmanbagh Samsthan
temples, Rewa dated 06.12.1954 clarifies the issue that the names
which are not mentioned in the schedule, payments/maintenance
were denied. The Trust Committee of Lakshmanbagh group of
temples have made a request for allotment of budget through letters
dated 15.11.1954, the replying to the said letter, the Government has
as in Serial No.2, which reads as follows:
"2) In the agreement executed between Sri swamiji Maharj and
the Government, the names of these temples are not mentioned and
neither any payment was being made earlier to these temples by
Laxmanbagh Trust. It is due to this reason that approval was not
given in the Budget."
41. It clearly discloses the intention of the Vindhya Pradesh that the
names of the temples which are not mentioned, any payment being
made earlier to these temples by Lakshmanbagh Trust, the approval
was not given in the budget. In view of the above said
correspondence, it clarifies that the plaintiff of mutt was maintained
independently by both Sri Badriprapannacharya Swamiji by
Harivamshacharya Swamiji independently. No payments were made
by Lakshmanbagh Samsthan.
42. Without considering the said documents E.x.A1 to A3, the court
below strangely held that, taking the statement made at Para 11 of the
plaint, the plaintiff-mutt was taken possession and control over the
other Mutt property spread in other parts of the India and declared
that the plaintiff Mutt is not an independent mutt, which is wholly
illegal.
43. Learned counsel appearing on behalf of the defendants, Sri
T.Lakshmi Narayana has replied to the said contentions, submitted
that though he has admitted that by virtue of Ex.A1, Sri
Badriprapannacharya ji was appointed as trustee to the properties of
Moola Mutt because he was the Mahanth of Lakshmanbagh
Samsthan, at that point of time and subsequently Sri
Badriprapannacharya swamiji executed a will by appointing Sri
Harivamshacharya as his lawful descendants as Mahanth successor
to take Lakshmanbhag Samsthan. But the same was not approved by
the Maharaja. Though he has admitted the Will dated 04.07.1957,
but contended that Will is only valid to an extent of power of
nomination of Harivamshacharya as successor of Mahanthship only.
After the death of BadriPrapannacharyaji as per the agreement dated
30.03.1954, the state Government of Madhya Pradesh has appointed
Sri Raghavacharya as Mahanth of Lakshmanbhag vide orders dated
20.10.1958. When the said orders were challenged by Sri
Harivamshacharayaji/plaintiff herein by claiming with certain
properties given to Mahanth Badri Prapannacharya Swami to him
and also the power of the State Government to appoint another
Mahanth, the Trial court, after considering the entire material,
dismissed the said suit and he filed an appeal against the suit. The
High Court of Madhya Pradesh also dismissed the appeal with a clear
observation, the plaintiff was not eligible as Head of Samsthan.
44. He also relied on the averments made in Para No.11 of the
plaint, wherein it is mentioned that the plaintiff Mutt is in possession
and control of various other property, spread in other parts of India,
which clearly shows that the person, who appoints as Mahanth,
Lakshmanbagh Samsthan, Rewa, Madhya Pradesh is also a trustee of
Moola Mutt. Hence, the plaintiff-Mutt is not an independent Mutt and
whoever be the Mahanth of Lakshmanbhag Samsthan is the trustee of
plaintiff's Mutt. Hence, it is part and parcel of Lakshman Bhag
Samsthan.
45. Apart from the above rival contentions of the both the counsel, it
is not out of place to note that the admission made by DW.3 in his
evidence that there is no document to show that the Moola Mutt is
part and parcel of Lakshmanbhag Samsthan except stating that there
is a mention of Lakshmanbhag Samsthan in Ex.B9/Ex.A3.
46. Considering the submissions of both the counsel, and Ex.A1 to
A3, Ex.A17 and also admission made by the defendant No.3 can safely
held that the plaintiff/Moola Matt is an independent Mutt and it is not
a part of parcel of Lakshmanbhag Samsthan.
47. Learned counsel for the plaintiff has further contended that as
per Ex.A1/the properties were executed vested in the Mutt deity Sri
Lakshmi Narasimga Bhagwan and the same was not denied by the
defendants. Even as per Ex.A3, the Moola mutt/plaintiff mutt was
not included in the schedule and according to the said document the
committee is entitled to possess and manage the movable and
immovable properties of the temples mentioned in the schedule.
Further the correspondence between the Government and the said
committee it clearly discloses that the defendants have never spent
any money for maintenance of the plaintiff's Mutt and accordingly
they have denied the maintenance of the temples/which are not
included in the schedule properties. It is surprising to note that the
defendants have not placed any record to show that they have
maintained the temple/plaintiff's mutt since 1954 either from1925 or
from1955. It is not denied by the defendants that the plaintiff is
performing Poojas regularly and they also performing Nitya Deepa
Naivedya, araadhana to the deity and also providing free meals and
accommodation to the pilgrims through all these years by the
plaintiff/mutt itself.
48. Learned senior counsel has submitted that the Tirumala
Tirupati Devasthan has acquired the properties of the Mutt for
widening of the road of four mada streets at Tirumala. Accordingly an
award was passed bearing No.1 of 1990-91 dated 16.04.1990.
Alternatively the Tirumala Tirupati Devasthanam had given site and
plot No.4, Block No.B, TSNo.3 part, Kolaigunta Tirumala to an extent
of 2220 Sq.Ft., handed over the possession for the same to the
plaintiff. And the Tirumala Tirupati Devasthanam had given
possession receipt for the said property on 15.03.1999, accordingly
the lease deed was also executed between the Tirumala Tirupati
Devasthanam and Moola Mutt. The above said properties were
included to the plaint 'A' Schedule property. Later the
plaintiff/appellant submitted plans for construction of new Moola
mutt in the plaint-A schedule property. Accordingly, said plan was
approved by the competent authority of Tirumala Tirupati
Devasthanam, thereupon in the said site, the plaintiff-Mutt has
constructed and reinstalled the idols of Lord Srirama, Lord Seetha,
Lord Lakshmana and Lord Hanuma by conducting religious rites.
Even said Mutt was constructed in the site allotted by the Tirumala
Tirupathi Devasthanam, by collecting donations from the devotees on
its own. Thus, the plaintiff has been in continuous and exclusive
possession, by managing the mutt by performing daily poojas and
providing free meals to the pilgrims and also providing
accommodation facilities.
49. Item No.(b) of para-4 of the plaint wasacquired by the TTD and
Item No.(c) of para-4 was also acquired the land with Structures to an
extent of 45,510 sq.ft bearig TS.No.6-3-1 in Singa Mala Street,
Tirumala in lieu of that the Tirumala Tirupathi Devasthanam has
given an alternative site an extent of 8,000/- sq.ft. in TS.No.3-4-A 3-4-
B, abutting to Andavan Ashramam, Tirumala. Accordingly the
Tirumala Tirupati Devasthanam also issued possession certificate to
the plaintiff on 19.10.2004 and since then the plaintiff has been in
exclusive possession and management and enjoyment of the plaint
schedule property. In view of the above said proceedings, it is very
clear that the plaintiff as trustee in exclusive possession and
enjoyment of the said properties by managing trust. The said aspects
were not denied by the defendants.
50. Learned counsel appearing for the respondent/defendants has
submitted that as per the Will executed by Sri Badripapannacharya
on 04.07.1957, Sri Harimvamshacharya was appointed as Mahanth of
Lakshmanbagh Samsthan, and by virtue of that he was also entrusted
as trustee of Moola mutt. By virtue of the agreement entered between
the President of India, appointment of Mahanth has to be approved by
the State Government of Madhya Pradesh. But in this case, the
nomination of Sri Harivamshacharya to the Mahan ship has to be
ratified by the Maharaja concerned. Sri Harivamshacharya as
successor to Badripapannachariji was not receoginsed by the state
Government of Madhya Pradesh. And Sri Swami Raghacharyaji was
appointed as Mahant of Lakshmanbagh Samsthan, recommended by
the Committee vide orders dated 20.10.1958. By virtue of the said
appointment of Sri S.Raghavacharya as Mahanth of Lakshmanbagh
Samsthan, the Harivamshacharya was removed as Mahanth of
Lakshmanbagh Samsthan. Sri Harivamshacharya is the plaintiff, who
is nothing to do with the plaint properties. He further submitted that
against the appointment of Raghavacharya as Mahanth to the
Lakshmanbagh Samsthan, the plaintiff has filed a civil suit in
7A/1971 on the file of II Additional District Judge, Madhya Pradesh
and the same was dismissed by the competent civil Court, for which
the petitioner also field an appeal before the High court of Madhya
Pradesh at Jabalpur vide First Appeal No.260 of 1973 and the appeal
was also dismissed with a clear observations that he was not entitled
for appointment as head of Samsthan accordingly his claim for
Mahantship was denied.
51. Considering the allegations received against the plaintiff after
enquiry the Madhya Pradesh Government Dharmik Nyaya and
Dharmaseva Department in proceedings No.F7/50/200/CHHA has
removed Sri Harimvamshacharya from the Mahanthship of
Lakshmanbagh Samsthan. Accordingly, it was communicated by the
Collector of Rewa to the Principal Secretary of Madhya Pradesh
Government by taking the charge of the Lakshmanbagh Samsthan
himself. By virtue of that, now the plaintiff in the suit is not a
Mahanth, accordingly, he cannot represent either as Moola Mutt or as
GPA holder of Harivamshacharya. By virtue of the removal of
Harivamshacharya as Mahanth, GPA has come to an end. Therefore,
the plaintiff has no locus standie to file the suit at all. He further
submitted that s the GPA holder Harivamshacharya he used to
manage the Moola Mutt. Accordingly after acquisition proceedings,
the Tirumala Tirupati Devasthan has handed over to possession
certificates to the plaintiff, but by virtue of the proceedings dated
11.08.2005 the plaintiff is no more Mahanth of Lakshmanbagh,
hence, GPA Harivamshacharya to the plaintiff would cease from the
subject.
52. To support his contention learned counsel appearing on the
defendants heavily relied on the judgment of the Trial Court in Civil
Suit 7A/1971 on the file of Additional District Court, Rewa.
53. Considering the above submissions, on perusal of the
documents and also the evidence, it is not in dispute that through will
under Ex.A1, the properties were vested with the Deity Sri
Lakshminarasimg Bhagwan and Sri Badriprapannacharyaji was
appointed as trustee to the said properties. Sri Harivamshacharya
swamy was appointed by the Badri Prapannacharyaji as trustee to the
properties of the plaintiff-mutt.
54. On perusing Ex.A5, A6, A7 and A10 it clearly discloses that
plaintiff-mutt was in possession of the property and the same was
also acknowledged by the Tirumala Tirupati Devasthan and in the
evidence of DW.2, in the cross-examination, admitted that the plaintiff
is in lawful possession of the suit property. Considering the above
this court has concluded and declared that the plaintiff is absolute
owner of the plaint schedule property A1 and B, plaintiff properties.
55. Learned counsel for the petitioner has submitted in his
arguments about the other aspect of the findings given by the court
below, that the plaintiff mutt is not registered as per Section 6 of the
Act 30 of 1987. The court below considering the submissions made
by the defendants, held that though it is assumed that the plaintiff
mutt is an independent mutt, it has to be registered under A.P.
Charitable and Hindu Religious Institutions and Endowments Act,
1987. And according to section 49 of said Act, Muttadhipati of every
Mutt shall submit to the Commissioner wutgun a period of ninety
days from the date of commencement of the Act or the date of
founding of such Mutt, proposal for fixation of Dittam in the Mutt.
But in the instant case, no such proposals were sent either of PW.1,
or his predecessor Mahanths under Act 30 of 1987, or under the old
act, accordingly declared that the plaintiff Mutt is part of
Lakshmanbagh Samstha is not correct. In support of his contention
learned senior counsel for the appellant relied on the ratio decided by
the Apex Court in Sri Radhakanta DEB and Another Vs.
Commissioner of Hindu Religious Endowments, Orissa1
In Gurpur Guni Venkataraya Narashima Prabhu & Ors. v. B.G.
Achia, Assistant Commissioner, Hindu Endowment, Mangalore & Anr.
Krishna Iyer, J., reiterated these very principles in the following words:
"The law is now well settled that 'the mere fact of the public having been
freely admitted to the temple cannot mean that courts should readily infer
therefrom dedication to the public. The value of such public user as evidence
of dedication depends on the circumstances which give strength to the
inference that the user was as of right'. (See Bihar State Board Religious
Trust, Patna v. Mahant Sri Biseshwar Das-[1971] 3 SCR 680,
689)."
Thus, on a conspectus of the authorities mentioned above, the
following tests may be laid down as providing sufficient guidelines to
determine on the facts of each case whether an endowment is of a private
or of a public nature:
(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.
Considering the two documents together the fundamental features, which
now from the recitals extracted above, may be summarised as follows:-
(1) That the deity was installed in the temple purely as a family deity and
the dedication WAS made only for a group of individuals who may be
connected with the family of the Panis who were the founders of the deity.
This clearly establishes that the intention of the founders was to dedicate
their properties and instal the deity in the temple only for purposes of the
Pani family, and their descendants. A perusal of the recitals extracted
above would unmistakably show that there can be no two opinions on this
question.
(2) Extensive private properties belonging to the Pani family alone were
dedicated for the maintenance Of the temple and the deity and there is
nothing to show that any contribution was called for from members of the
public nor is there any averment in the deed to show that there was any
(1981) 2 SCC 226
stipulation for taking offerings from the members of the public to worship
in the temple.
(3) There was no provision for framing any scheme by associating the
members of the public or consulting them. In fact, Ext. 1 shows that even
after the descendants of the founders had fallen on evil days and were
not in a position to provide sufficient funds for the maintenance. Of the
temple yet they appointed Udayanath Pattanayak to manage the affairs of
the deity and bound themselves personally to reimburse the Manager for
any out-of-pocket expenses incurred in connection with the maintenance of
the temple. This circumstance manifestly proves that the endowment was
of a purely private nature right from the time it was created till 1932 when
the management was changed and continued to be of the same nature.
Indeed, the personal undertaking contained in Ext. 1 clearly shows that
there was never any intention to treat the temple as a public one but the
intention was, if at all, to continue it in the name of the family so long as
the family continued.
(4) There is no recital in any of the documents to show that the members of
the public or the villagers of the place where the temple was situated were
entitled to worship as of right. On the other hand, PWs 1 to 6 who were
examined by the appellants-plaintiffs have categorically stated that
members of the public were not allowed to worship in the temple as of
right. In this connection PW 1 stated as follows:-
"Members of the public have no right to have Darsan of, or to offer bhog to
the deity. The villagers do not make Kirtan before the deity or take any
part in any festivity of the deity. The deity has no Bahari Jatra. No
member of the public made any gift to the deity. No khairat is ever given.
The properties of the Thakur are all (sic) with rent."
56. In view of the above law lay down by the apex court in the above
referred judgments, it can be construed that Moola Mutt is not
registered under Act but is individual Mutt and private Mutt. For that
reason only it not enlisted in the publication made under Section 6 of
the Act 30 of 1987.
57. Replying to the said arguments, learned counsel appearing on
behalf of the respondents/defendants has submitted that because the
plaintiff-mutt is part of the Lakshman Bagh Samsthan, said Mutt was
not included in the list prepared under section 6 of the Act 30 of
1987. If it is construed as independent Mutt, it has to be registered
as per section 6 of the Act 30 of 1987 or old act, and even as per
Section 49 of the Act 30 of 1987, Mathadhipati of every Mutt shall
submit to the Commissioner within a period 90 days from the date of
commencement of the Act or foundation of such Mutt, proposal of
fixation of dittum in the Mutt. Though there is a specific provision in
the Act with regard to the plaintiff Mutt no such proposals were send
either by the plaintiff or GPA holder of the plaintiff. Hence, it is not
an independent Mutt, it is construed as part of Lakshmanbagh
Samsthan, for that reason only, the officials of endowment
Department has not recognised the Mutt as independent Mutt and the
same was not listed under section 6 of the Act 30 of 1987.
58. Considering the above submissions and on perusal of the
record, as per Ex.A1 it is clear that the Mutt has been existing since
more that 100 years, and the plaintiff installed deities for conducting
poooja, which was not dined by either party. Just because the mutt
was not registered under Section 6 of Act 30 of 1987, it cannot be
construed as not an independent Mutt. As per observations of the
Hon'ble Apex Court in the above referred judgment, it clearly stated
that whether if a document is available to prove the nature and origin
of the endowment and the recitals of the document shows that the
control and management of the temple, it should be conclusive to
prove that the endowment or Mutt was of a private in nature. In the
instant case also on perusal of the recitals of 1925 documents it
proves that it is a private and independent Mutt. Hence, the finding of
the court below is not in accordance with the observations of the
Hon'ble Apex Court.
59. Learned counsel appearing on behalf of the respondents
submitted that the properties addressed by Ramnarayanacharyaji to
Badri Prapannacharyaji are not personal properties of any of them
and the said properties belongs to the Institution for which they are
only trustees. The will executed by Badripapannacharyaji is valid
only to the extent of power of Harivamshacharyaji and the same would
not extent to the properties of the institution. As per Section 50 of
Act 30 of 1987, that any property gifted to Mahanth, he shall be
entitled to spend at his discretion for any purpose, which would
connected with the object of the mutt and for propagation of Hindu
Dharma only. Hence, the properties of Schedule A and B were
included in properties of Deity by virtue of the will executed in the
year 1925 or subsequent nomination of Harivamshacharya are only
with regard to the trusteeship and they are not entitled to deal with
the properties of Moola Mutt. He further submitted that Sri
Harivamshacharyaji has approached the competent Civil Court of
Madhya Pradesh, questioning the appointment of Ramanrayacharya ji
as Mahanth of Lakshmanbagh Samsthan, which elaborately
discussed in the judgment and accordingly dismissed by the
Additional District Judge, Rewa declaring that the plaintiff is not
entitled to be appointed as Mahanth. In view of the same, the present
suit is not maintainable under section 11 of Civil Procedure Code,
since the doctrine of res judicata applies.
60. Counter to the said contention, it is submitted that learned
counsel for the appellant that plaintiff-mutt is not a party to said suit
and the issue before the II Additional District Judge, Rewa with regard
to the Mahanthship of Lakshmanbagh Samsthan, Rewa. Though the
appellant/plaintiff was removed as Mahanth of Lakshmanbagh
Samsthan by the State government, he has assailed the said
proceedings and the whole contention and pleadings with regard to
the said suit is with regard to the entitlement of Mahanthship to
Lakshmanbagh Samsthan. The issue was considered by the II
Additional District Judge, Rewa is that as per the agreement entered
between the parties, if any Mahanth is appointed, it should be ratified
by either Maharaja or concerned Department of the State. The same
is nothing to do with the present suit. The present suit is filed by
Moola Mutt, to declare the plaint schedule properties A and B, are of
the plaintiff's. The subject matter is nothing to do with the findings of
the II Additional District Judge Rewa, 7A/1971.
61. Considering the submissions made, it is held that the suit filed
by Harivamshacharya Swamiji on the file of II Additional District
Judge, Rewa assailing the only proceedings of appointment of
Lakshmanbagh Samsthan.
62. In view of the above, declaring that the plaintiff Mutt is an
independent Mutt it is not part of Lakshmanbagh Samsthan, the
present suit would not attract the doctrine of res judicata under
section 11 of the CPC, as the plaint is different.
63. Learned senior counsel further raised an issue that as far as the
contention raised by the defendant with regard to the fulfilling the
statutory requirement, under section 80 of CPC, learned senior
counsel has submitted that the issue was already considered by the
court below, in view of the exchange of notice, i.e. B26/letter
addressed by the Sri Laksmanacharya, GPA Holder of Moola Mutt to
the District Collector, Rewa, dated 27.10.2005 that the Moola Mutt in
Tirumala does not vest with the Lakshmanbagh Samsthan, Rewa and
that the Executive Officer of Lakshmanbagh Samsthan also addressed
a letter to the District Collector, Chittoor, considering the same, the
Court held that the compliance of Section 80 of CPC. The defendants
has not filed any appeal against he said observations, hence, it is
barred to take such view.
64. On the other hand, learned counsel for the
respondents/defendants further contended that the weakness of the
respondents cannot be relied upon and the burden of proof lies on
plaintiffs.
65. Replying to the said contentions, learend senior counsel has
relied on Sections 102, 106 and 110 of Indian Evidence Act. For
better appreciation, Section 102 of Indian Evidence Act is extracted as
follows:
"102. On whom burden of proof lies.--The burden of proof in a suit or
proceeding lies on that person who would fail if no evidence at all were given
on either side. Illustrations
(a) A sues B for land of which B is in possession, and which, as A asserts,
was left to A by the will of C, B's father. If no evidence were given on either
side, B would be entitled to retain his possession. Therefore the burden of
proof is on A.
(b) A sues B for money due on a bond. The execution of the bond is
admitted, but B says that it was obtained by fraud, which A denies. If no
evidence were given on either side, A would succeed, as the bond is not
disputed and the fraud is not proved. Therefore the burden of proof is on
B."
66. Suit or proceedings lies on the person falls no evidence at all
given or either. As per above referred sections it is clear that DW.1
the person claiming him as administrator appointed by the
Government of Madhya Pradesh to look after the Mutt, he filed the
written statement, but he has not entered into the witness box.
114 Court may presume existence of certain facts. --The Court may presume the
existence of any fact which it thinks likely to have happened, regard being had to
the common course of natural events, human conduct and public and private
business, in their relation to the facts of the particular case. Illustrations The
Court may presume--
(a) That a man who is in possession of stolen goods soon after the theft is either
the thief or has received the goods knowing them to be stolen, unless he can
account for his possession;
(b) That an accomplice is unworthy of credit, unless he is corroborated in material
particulars;
(c) That a bill of exchange, accepted or endorsed, was accepted or endorsed for
good consideration;
(d) That a thing or state of things which has been shown to be in existence within
a period shorter than that within which such things or state of things usually
cease to exist, is still in existence;
(e) That judicial and official acts have been regularly performed;
(f) That the common course of business has been followed in particular cases;
(g) That evidence which could be and is not produced would, if produced, be
unfavourable to the person who withholds it;
(h) That if a man refuses to answer a question which he is not compelled to
answer by law, the answer, if given, would be unfavourable to him;
(i) That when a document creating an obligation is in the hands of the obligor, the
obligation has been discharged.
But the Court shall also have regard to such facts as the following, in
considering whether such maxims do or do not apply to the particular case before
it:-- As to illustration
As to illustration (a) -- A shop-keeper has in his till a marked rupee soon after. it
was stolen, and cannot account for its possession specifically, but is continually receiving
rupees in the course of his business;
As to illustration (b) -- A, a person of the highest character is tried for causing a
man's death by an act of negligence in arranging certain machinery. B, a person of
equally. good character, who also took part in the arrangement, describes precisely what
was done, and admits and explains the common carelessness of A and himself;
As to illustration (b) -- A crime is committed by several persons. A, B and C,
three of the criminals, are captured on the spot and kept apart from each other. Each
gives an account of the crime implicating D, and the accounts corroborate each
other in such a manner as to render previous concert highly improbable;
As per Section 114 of Indian Evidence Act, it can be
presumed that the defendant failed to object the case. To support his
contention relied on the following judgments.
67. In Iswar Bhai C. Patel Alias Bachu Bhai Patel Vs. Harihar
Behera And Another2 wherein it is held that -
"Admittedly defendant No.1 had an account in the Central Bank of India
Limited, Sambalpur Branch which his father, namely, respondent No.2,
was authorised to operate. It is also an admitted fact that it was from
this account that the amount was advanced to the appellant by
respondent No.2. It has been given out in the statement of respondent
No.2 that when the appellant had approached him for a loan of
Rs.7,000/-, he had explicitly told him that he had no money to lend
whereupon the appellant had himself suggested to advance the loan
from the account of respondent No.1 and it was on his suggestion that
the respondent No.2 issued the cheque to the appellant which the
appellant, admittedly, encashed. This fact has not been controverted by
the appellant who did not enter the witness box to make a statement on
oath denying the statement of defendant (respondent) No.2 that it was
at his instance that respondent No.2 had advanced the amount of Rs.
7,000/- to the appellant by issuing a cheque on the account of
defendant (respondent) No.1. Having not entered into the witness box
and having not presented himself for cross-examination, an adverse
presumption has to be drawn against him on the basis of principles
contained in illustration (g) of Section 114 of the Evidence Act."
....
A Division Bench of the Punjab & Haryana High Court also in
Bhagwan Dass vs. Bhishan Chand and others, AIR 1974 Punjab &
Haryana 7, drew a presumption under Section 114 of the Evidence
Act that if a party does not enter into the witness box, an adverse
presumption has to be drawn against that party.
(1999) 3 SCC 457
Applying the principles stated above to the instant case, it
would be found that in the instant case also the appellant had
abstained from the witness box and had not made any statement on
oath in support of his pleading set out in the written statement. An
adverse inference has, therefore, to be drawn against him. Since it
was specifically stated by respondent No.2 in his statement on oath
that it was at the instance of the appellant that he had issued the
cheque on the account of respondent No.1 in the Central Bank of
India Ltd., Sambalpur Branch, and the appellant, admittedly, had
encashed that cheque, an inference has to be drawn against the
appellant that what he stated in the written statement was not
correct. In these circumstances, the High Court was fully justified in
decreeing the suit of respondent No.1 in its entirety and passing a
decree against the appellant also. "
68. In Vidhayadhar Vs. ManikRao And Another3 the Hon'ble Apex
Court held that -
"Where a party to the suit does not appear into the witness box and
states his own case on oath and does not offer himself to be cross
examined by the other side, a presumption would arise that the case set
up by him is not correct as has been held in a series of decisions passed
by various High Courts and the Privy Council beginning from the decision
in Sardar Gurbakhsh Singh v. Gurdial Singh and Anr. . This was followed
by the Lahore High Court in Kirpa Singh v. Ajaipal Singh and Ors. AIR
(1930) Lahore 1 and the Bombay High Court in Martand Pandharinath
Chaudhari v. Radhabai Krishnarao Deshmukh AIR (1931) Bombay 97.
The Madhya Pradesh High Court in Gulla Kharagjit Carpenter v. Narsingh
Nandkishore Rawat also followed the Privy Council decision in Sardar
Gurbakhsh Singh's case (supra). The Allahabad High Court in Arjun Singh
v. Virender Nath and Anr. held that if a party abstains from entering the
witness box, it would give rise to an inference adverse against him.
Similarly, a Division Bench of the Punjab & Haryana High Court in
Bhagwan Dass v. Bhishan Chand and Ors. , drew a presumption under
Section 114 of the Evidence Act against a party who did not enter into the
witness box.
...
1999 3 SCC 573
In the instant case, the property which was mortgaged in favour of
defendant No. 1 was transferred by defendant No. 2, who was the owner
of the property, to plaintiff. This transfer does not, in any way, affect the
rights of defendant No. 1 who was the mortgagee and the mortgage in his
favour, in spite of the transfer, subsisted. When the present suit for
redemption was filed by the plaintiff, defendant No. 2, as pointed out
above, admitted the claim of the plaintiff by filing a one-sentence written
statement that the claim of the plaintiff was admitted. When the plaintiff
entered into the witness box, defendant No. 2 did not cross examine him.
He did not put it to the plaintiff that the entire amount of consideration
had not been paid by him, defendant No. 1 alone raised the question of
validity of the sale deed in favour of the plaintiff by pleading that it was a
fictitious transaction as the sale consideration had not been paid to
defendant No. 2 in its entirety. Having pleaded these facts and having
raised the question relating to the validity of the sale deed on the ground
that the amount of consideration had not been paid, defendant No. 2 did
not, in support of his case, enter into the witness box. Instead, he deputed
his brother to appear as a witness in the case. He did enter into the
witness box but could not prove that the sale consideration had not been
paid to defendant No. 2. On a consideration of the entire evidence on
record, the Trial Court recorded a positive finding of fact that the sale
deed, executed by defendant No. 2 in favour of the plaintiff, was a
genuine document and the entire amount of sale consideration had been
paid. This finding was affirmed by the Lower Appellate Court but the High
Court intervened and recorded a finding that although the property which
was mentioned to have been sold for a sum of Rs. 5,000/-, the plaintiff
had, in fact, paid only Rs. 500 to defendant No. 2. The amount of Rs.
4,500 which was indicated in the sale deed to have been paid to
defendant No. 2, prior to registration, was not correct. It was for this
reason that the High Court while redeeming the property directed that the
amount of sale consideration which was paid by the plaintiff to defendant
No. 2 shall be returned by defendant No. 2 and the property would revert
back to him."
69. In Iqbal Basith and Others Vs. N.Subbalakshmi and Others4,
wherein it is held that-
The present suit was instituted by the appellants in 1974 seeking
permanent injunction as the respondents attempted to encroach on
their property. The suit schedule property was described as no. 44/6.
(201) 2 Supreme Court Cases 718
The respondents in their written statement claimed ownership and
possession of property no. 42, acknowledging that other properties
lay in between. A feeble vague objection was raised, but not pursued,
questioning the title of the appellants. The respondents raised no
genuine objection to the validity or genuineness of the government
documents and the registered sale deeds produced by the appellants
in support of their lawful possession of the suit property. The original
defendant no.1 did not appear in person to depose, and be cross
examined in the suit. His younger brother deposed on the basis of a
power of attorney, acknowledging that the latter had separated from
his elder brother. No explanation was furnished why the original
defendant did not appear in person to depose. We find no reason not
to draw an adverse inference against defendant no.1 in the
circumstances. In Iswar Bhai C. Patel vs. Harihar Behera, (1999) 3
SCC 457 this Court observed as follows: "17.....Having not entered
into the witness box and having not presented himself for cross-
examination, an adverse presumption has to be drawn against him
on the basis of the principles contained in Illustration (g) of Section 114
of the Evidence Act, 1872."
70. In the instant case, though the defendant No.1 has filed the
written statement, he has not entered into the witness Box and he has
not gave his evidence. In view of the same, as per the ratio decided by
the judgments of the Apex Court, it can be held that as per Section
114 of the Act, presumption goes to show that adverse inference can
be drawn against DW.1.
71. Considering the submissions of the senior counsel and on
perusal of Ex.A5 to A9 and as per the admission made in the cross-
examination of DW.2, it is not in dispute that the plaintiff is in
possession of the said property and accordingly they have established
their possession, hence, it can be concluded that the plaintiff is
entitled for grant of permanent injunction as prayed for.
72. Therefore, in view of the above findings, the Appeal Suit is
allowed. Consequently, the Decree and Judgment in O.S.No.439 of
2005 dated 10.04.2012 on the file of the Additional Senior Civil Judge,
Tirupati is set aside, declaring the plaint A & B Schedule properties
are absolute properties of the plaintiff, thereby granting permanent
injunction restraining the defendants, their men, agents, supporters,
henchmen and followers in their behalf from any way interfering with
the plaintiff's peaceful possession and enjoyment of the plaint
schedule properties. There shall be no order as to costs.
As a sequel, pending miscellaneous petitions, if any, shall stand
closed.
_______________________
JUSTICE D.RAMESH
Date: 30 .04.2022
Pnr
THE HONOURABLE SRI JUSTICE D.RAMESH
APPEAL SUIT No. 361 of 2012
Dated 30.04.2022
Pnr
