New Friends Cooperative House ... vs Mahant Narain Das And Others
2011 Latest Caselaw 2065 Del

*             IN THE HIGH COURT OF DELHI AT NEW DELHI

+                         RFA No.146/1985

%                                                       18th April, 2011

NEW FRIENDS COOPERATIVE HOUSE BUILDING SOCIETY LTD.
                                                   ...... Appellant
                   Through:  Mr. S.C.Singhal, Adv.


                          VERSUS

MAHANT NARAIN DAS AND OTHERS                       ...... Respondents

Through: Mr. Shahzad Hussain, Adv. for R-2.

Mr. D.Verma and Mr. Nikhil Goel, Adv. for R-3.

Mr. Raman Duggal, Adv. for R-4.

CORAM:

HON'BLE MR. JUSTICE VALMIKI J.MEHTA

1. Whether the Reporters of local papers may be allowed to see the judgment?

2. To be referred to the Reporter or not?

3. Whether the judgment should be reported in the Digest?

VALMIKI J. MEHTA, J (ORAL)

CM Nos. 15050/2006, 15051/2006 & 9671/2006

The defendant no.1, who was the Mahant of the temple, was sued as

respondent no.1 in the present appeal. The respondent no.1 Sh. Mahant

Narain Dass expired on 5.6.1998. No application was filed by the appellant

to bring his legal heirs on record. It is settled position as per the law

prevailing under the Hindu Law of Religious and Charitable Trusts that a

Pujari/Mahant/Manager on his death, is thereafter represented by a new

Pujari/Mahant/Manager, and who represents the idol as the trustee. It is the

idol which is the owner of the property and the Mahant/Pujari/Manager only

manages the property on behalf of the idol as a truestee. Though, there are

absolutely no grounds whatsoever for condonation of the huge delay of over

six years for setting aside the abatement, since, however I proposed to

dispose of the appeal itself on merits, I am allowing the applications not for

relief stated therein of substituting the Administrator General in place of the

deceased respondent no.1, but the new Mahant/Pujari/Manager Sh. Rabhubir

Singh and Giano Devi who have filed replies to these applications are

substituted as respondents in place of erstwhile respondent no.1. Delay in

filing the application is also condoned. CMs stand disposed of.

CM Nos. 2086/2003 and 2087/2003

By these applications, legal heirs of the deceased respondent no.3 are

sought to be brought on record. In reality, the deceased respondent no.3 was

only a proper party in the main suit inasmuch as admittedly respondent no.3

was a tenant under the Mahant/Pujari/Manager and he would naturally have

to abide by the decision as to the title between the appellant/plaintiff and the

respondent no.1 (now represented by the new Pujari/Mahant)/ original

defendant nos.1 and 2. No right, title and interest of the respondent no.3 is

being decided in these proceedings which are for deciding disputes as to title

of the subject property between the appellant/plaintiff and the erstwhile

respondent no.1/Mahant/Pujari and defendant no2/respondent no.2/idol.

Accordingly, these applications are allowed and the legal heirs of deceased

respondent no.3 be brought on record.

RFA No.146/1985

1. This case firstly came up before me on 7.2.2011 and an adjournment

on the ground of compromise talks was sought in this 26 years old appeal.

The case was adjourned but it was made clear that on the adjourned date no

adjournment shall be granted. On the next date i.e. 1.3.2011, it was

recorded that compromise talks have failed, and the appeal was listed today

for arguments again with a categorical observation that no adjournment shall

be granted. The following was the order which was passed on 1.3.2011:-

"Compromise talks have failed.

List for arguments on 18th April, 2011. It is made clear that no adjournment shall be granted on the next date."

In spite of the above, the counsel for the appellant once again prays

for adjournment. I have therefore declined the request for adjournment and

have heard the counsel for the respondents in the appeal.

2. The challenge by means of this Regular First Appeal is to the impugned

judgment and decree dated 29.9.1984, whereby, the suit of the

appellant/plaintiff was dismissed in which prayer was for possession and

mandatory injunction with respect to the subject property comprising of a

temple, well and adjoining land on 1 bigha 5 biswas forming part of Khasra

No.400, Village Kilokari, New Delhi. There were two basic reasons for

dismissing of the suit by the trial court. The first reason was that the

appellant-society had got the land from Union of India under a lease, but

Union of India itself was not the owner inasmuch as the acquisition

proceedings had specifically left out shrines which were situated on the lands

to be acquired, and, the respondent no.1 had proved that the Shiva Temple,

a religious shrine, existed on the date of the notification under Section 4 of

the Land Acquisition Act, 1894 (hereinafter referred as to the „Act‟ or the

„said Act‟) on 13.11.1959. The second reason for dismissal of the suit was

that even assuming the subject land was covered by the notification under

Section 4 of the Act, yet it was not proved that the Government took

possession of the land under Section 16 of the Act, and since possession was

not taken, Government never became the owner of land so that the same

could be further transferred to the appellant society.

3. The trial court, after the pleadings were complete, framed the following

issues.

ISSUES:-

" 1. Whether the written statement filed by the Defendants. Is it in accordance with law? If not, to what effect? OPP

2. Whether the suit is within time? OPP

3. Whether the suit has been filed by a duly authorised person? OPP

4. Whether the Plaintiff is the owner of the land in dispute? If so, to what effect? OPP

5. Whether Defendants are the unauthorised occupants of the land in dispute? If so, to what effect? OPP

6. If Issue No.5 is not proved in the affirmative, whether Defendants No.1 and 2 could induct Defendants 3 and 4 as tenants as alleged in the Written statement? OPD

7. Whether the suit is bad for non-joinder of necessary parties? OPD

8. Relief.

ADDITIONAL ISSUES:-

1. Whether Mandir was situated at the land in dispute and the land was attached to the same before Land Acquisition Proceedings? If so, to what effect?

2. If this issue is proved in the affirmative, whether the land could not have been validly and lawfully acquired?

3. Whether the possession of the land in dispute was taken in pursuance of the award?

4. Whether the possession of the land in dispute was delivered by the Union of India to the Plaintiff?

5. Whether the Acquisition proceedings can be challenged in this suit?"

4. The main issue therefore which was to be decided by the trial court

was issue no.4 with regard to ownership of the subject land. The necessary

questions in this behalf were firstly whether the subject land was covered by

the Award and secondly whether possession thereof was or was not taken.

This is so stated in para 18 of the impugned judgment and decree which

reads as under:-

"18. The question is whether the land in dispute is covered by the Award and possession of it was taken by the Government and whether it vested in the Union of India or not."

5. The trial court has referred the testimonies of various witnesses. PW-3

Sh. Sita Ram Patwari proved the Award. PW-6 Sh. Sant Lal Retired Tehsildar

proved the possession proceedings as Ex.PW 6/1. On behalf of respondent

no.1, evidence was led of Sh. Ram Kishan Patwari DW-1, who proved the

register of Khasra Girdawari which showed that there existed a Shiv Mandir,

a Well and a House from the years 1951 to 1959. DW-2 and 3 were residents

of nearby villages who deposed that there existed a Mandir for the last 45

years. DW-5, Sh. Jagdish Chander Sharma, another Patwari, proved the

certified copies of Khasra Girdawari for the year 1943-44 to 1956-57 as

Exhibit DW4/20 which again showed existence of the temple. Defendant

no.1 appeared as DW-4 and deposed that no possession was taken pursuant

to the land acquisition proceedings.

6. A copy of the notification under Section 4 of the Act was exhibited as

Ex.DZ during the proceedings in the trial Court. In this notification, the

following categories of land were excluded from acquisition:

"(a) Government land and evacuee land;

(b) The land already notified either under section 4 or under section 6 of the Land Acquisition Act, for any Government Scheme;

(c) The land already notified either under section 4 or under section 6 of the Land Acquisition Act, for House Building Co-operative Societies mentioned Annexure-III;

(d) The land under grave yards tombs, shrines and the land attached to religious institutions and wakf property."

7. The trial court in view of the aforesaid notification held, and with which

conclusion I agree, that since the land was occupied by Mandir, the same,

was not sought to be acquired pursuant to the subject notification under

Section 4. There is also a finding of fact of the trial court that whereas 363

bigha and 16 biswas were sought to be acquired under the subject Award,

however possession was only taken of 359 bighas 13 biswas i.e. possession

of 3 bighas and 3 biswas was not taken.

8. With regard to the fact as to whether a Mandir existed over the

disputed land on 13.1.1959, the date of notification under Section 4, the trial

court has observed the following in para 36 and which reads as under:-

"36. Plaintiff has not produced any witness to show that no Mandir existed over the land in dispute prior to this notification. Defendants have proved through DW-1 that a Mandir existed over Khasra No.400 as per Khasra Girdawari Record of the year 1947 to 1959. DW-1 was not cross- examined regarding the correctness of this record. The existence of the Mandir has also been deposed by DW-2 and DW-3 who are residents of nearby villages. Defendant No.1 appearing as DW-4 has also so deposed and nothing to the contrary was elicited from his cross-examination. DW-5 again has also proved Khasra Girdawari of the year 1945-44 to Rabi 1951 showing Mandir over the land in dispute vide Exhibit DW- 4/19 and Exhibit 4/20 again DW-6 was proved some more Khasra Girdawaries as Exhibit DW-6/1 to Exhibit DW-6/5.

These relate to the year Kharif 1963 to Kharif 1982 in respect of Khasra No.400 and "Gair Mumkin Mandir" is recorded in

respect of 1 bigha and 5 biswas of land. Plaintiff relies on the statement of DW-6 who in cross-examination deposed that during Kharif 1959 to Rabi 1963 there is no entry in the name of Shiv Mandir. (Emphasis added)

I completely agree with the finding and conclusion of the trial court

that the subject land was not acquired because on the subject land, as on

the date of Section 4 notification there existed a Shiv Temple (in view of the

various Khasra Girdawaris proved) and a religious shrine was not intended to

be taken over by the subject notification under Section 4 of the Act.

9. On the aspect as to whether possession was taken under Section 16 of

the Act, the trial court has given the findings in paras 37, 38 and 40 of the

impugned judgment and which read as under:-

"37. The case of the Defendants is that the Mandir existed since the year 1939. Khasra Girdawari Exhibit DW-4/19 and Exhibit DW-4/20 show that there existed Gair Mumkin Shiv Mandir' over part of the land comprised in Khasra No. 400 from Kharif crop of 1943 till Rabi 1951 and further as deposed by DW-5 Shiv Mandir is recorded till Rabi 1958. It was held by Supreme Court in Ambika Pershad Thakur and Others Vs. Ram EK Balram (Deceased) by his L.Rs. Reported in 1966 S.C. 605 that if a thing or a state of things is shown to exist an inference of its continuity within a reasonably proximate time both forwards and backwards may sometimes be drawn. The presumption of future continuance is noticed in Illustration (d) to Section 114 of Evidence Act. In appropriate cases, an inference of the continuing of a thing or state of things backwards may be drawn under this section though on this point the section does not give a separate illustration. The rule that the presumption of continuance may operate retrospectively has been recognised in India. This is rule of evidence by which one can presume continuity of things backwards. The presumption of continuity weakens with the

passage of time. Now far the presumption may be drawn both backwards and forwards depends upon the nature of the thing and the surrounding circumstances.

38. In the absence of anyting contrary as deposed by DW-4 it can reasonably be presumed that Mandir may have existed prior to 1943. In the absence of anything to the contrary these Revenue entries coupled with the statement of DW-5 referred to earlier referred to earlier it is proved that a Mandir existed at least till Rabi 1958 and in the absence of anything to the contrary a presumption of continuance of this Mandir later on also arises and this presumption is strengthened by entries in Khasra Girdawari for the year Rabi 1963 onwards. If a Mandir Existed prior to 1959 and after 1963 there is no reason why it would not exist during 1959 to 1963. Revenue entries of this period where the existence of Mandir is not shown are not reliable. Thus in my view it is proved that the Mandir existed over the land in dispute since prior to 1943 which necessarily folows that the Mandir existed there on 13.11.59 when Notification U/s 4 of the Land Acquisition Act vide Exhibit DZ was issued. By this notification the land attached to shrines and religious places was not intended to be acquired and as such it was not the subject matter of the Land Acquisition and is thus not covered by the Award Exhibit P-8. This land was thus not acquired in pursuance of this Award. Moreover, it is not proved if the possession of this land was also taken vide possession Report Exhibit PW-6/1. Even if it is assumed that some land comprised in Khasra No. 400 was also acquired it is not proved that whole of the land measuring 5 Bighas and 3 biswas of Khasra No. 400 was acquired or its possession was taken. As against 362 Bighas and 16 biswas of land covered by this award possession of only 359 bighas and 13 biswas was taken. This also shows that the land covered by Mandir was not taken possession of.

40. Also the case of the plaintiff is not a Lease Deed of the acquired land was executed by the President of India vide copies Exhibit "PW-5/1 and Exhibit PW-5/2. No doubt these documents show that the land bearing Khasra No. 400 measuring 5 Bighas 3 Biswas is also included in this land.

However, merely by making the entry in these deeds of this land, it wil not prove that the possession of the land was delivered by the Union of India to the Plaintiff Society. When the Government itself had not taken possession, it could not have given possession to the plaintiff. Moreover, vide Exhibit

PW-5/1 only a license for a period of three years has been granted in favour of the Society to enter upon the said land for the purpose of making survey and taking measurement and level for preparing a Layout plan with the necessary designs and specifications dividing the said land into streets, open spaces, plots etc. and after obtaining sanction of the plan, to develop such land by providing streets, sewers, drains, water and electric mains, amenities and other conveniences in and on the said land, in accordance with the said layout plan. By this document only license had been granted in favour of the Society and the legal possession of the land remained with the Union of India. This license does not confer any title or interest over the land in favour of the Society. Thus the plaintiff has acquired neither the possessory title nor proprietary title over the land in dispute and as such is not entitled to maintain the present suit. This issue is decided against the plaintiff." (Emphasis added) Once again I completely agree with the finding and conclusions of the

trial court because simply by having a paper possession report, construction/

premises such as Mandir, House and Well could not have been taken

possession of, more so as the possession proceedings do not specifically

show possession having been taken over with respect to these constructed

portions. Further, I have also already observed above that possession of an

area of 3 bighas and 3 biswas was not taken pursuant to the Award for the

subject land.

10. This court is entitled to interfere in appeal with the impugned

judgment and decree, if the findings and conclusions contained in the same

are perverse or causes grave injustice/prejudice. I do not find any perversity

in the impugned judgment and decree which calls for interference by this

court in appeal. Merely because two views are possible, this court is not

entitled to interfere with one plausible and possible view which is taken by

the trial court.

11. Before closing, I must note that I am pained to note the conduct on

behalf of the appellant with respect to this appeal which is pending since the

year 1985. Unfortunately, entire system takes the blame with respect to the

delays whereas actually the parties and their counsel who keep on seeking

repeated adjournments and do not argue the appeals. It is only because of

such conduct that I have been forced to hear the counsel for the respondents

and dispose of the appeal.

The appeal is therefore dismissed with costs of Rs.25,000/- which be

paid by the appellant to the now substituted legal heirs of respondent no.1

within a period of four weeks from today. Trial court record be sent back.

April 18, 2011                                  VALMIKI J. MEHTA, J.
ib