Delhi High Court

Shri Amar Nath Shamra vs Bankey Behari Ji Maharaj(Thakur ... on 28 January, 2011

Author: Indermeet Kaur

R-20A
*    IN THE HIGH COURT OF DELHI AT NEW DELHI

%                  Judgment Reserved on: 25.01.2011
                  Judgment Delivered on: 28.01.2011


+                  RSA No.101/1986


SHRI AMAR NATH SHAMRA            ...........Appellant
             Through: Mr.A.K.Jain, Advocate.

                   Versus

BANKEY BEHARI JI MAHARAJ(THAKUR JI) & ORS.

                                          ..........Respondents
                   Through:    Mr.Jose Chiramel & Mr.Ramesh
                               Kumar, Mr. Nikhil Aggrahani and
                               Mr.Calvin Chiramel, Advocates.

       CORAM:
       HON'BLE MS. JUSTICE INDERMEET KAUR

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

     2. To be referred to the Reporter or not?                Yes

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

INDERMEET KAUR, J.

1. Plaintiffs no.1 to 6 had filed the present suit for

possession, damages and mesne profits. Plaintiff no.1 has been

described as a deity installed in temple No.3209, Mohalla

Dassan, Charkheywala, Delhi. Plaintiffs no.2 to 6 were the

successors-in-interest of Pt.Gopal Saran Dass the original owner

of the suit property. Defendant no.2 was a proforma party and

also a successor-in-interest of Pt.Gopal Saran Dass along with

plaintiffs no.2 to.6

2. The case of the plaintiff was that Pt.Gopal Saran Dass had

dedicated this property for a religious purpose. He had built a

Shivalya and a Chhatari on the ground floor. Premises bearing

No.3207, 3208, 3210, 3211 were the shops attached to this

temple. Pt.Gopal Saran Dass died in 1878. His legal heir was

Ganga Saran Dass the father-in-law of plaintiff no.2 and the

grandfather of plaintiffs no.3 to 6 as also of defendant no.2. The

temple was repaired and a new temple dedicated to Bankey

Behari Ji Maharaj was constructed. Ganga Saran Dass appointed

Pt.Makhan Lal as a pujari for conducting Sewa Puja. He was

paid a sum of `30/- per month. He was performing the duties of

the pujari; in this capacity he was allowed to use the first floor

of the suit premises comprising three rooms and a bath rooms.

On the ground floor the idols of the mandir were installed and

the other movables were kept for storage. On the death of

Pt.Makhan Lal defendant no.1 i.e. the Amar Nath Sharma was

appointed as a pujari in place of Pt.Makhan Lal to perform sewa

puja; he was also permitted to occupy the premises which were

earlier in the occupation of Pt. Makhan Lal. Pt.Niranjan Lal

Bhargava (who was the husband of plaintiff no.2 and father of

plaintiffs no.3 to 6 as also defendant no.2 )died in February 1957

leaving behind the aforenoted legal representatives. Plaintiffs

no.2 to 6 are looking after the affairs of the temple as trustees

and managers. They have no personal interest in the mandir.

The defendant no.1 was performing his duties in a careless

manner; he was negligent; he has recently brought construction

material on the premises without permission with a view to

illegally convert the temple on the ground floor for his

residential use. Vide notice dated 19.7.1972 the service of the

defendant was terminated. He was asked to vacate the

premises; he had not adhered to this request. Suit for

possession and recovery of the articles of the mandir (as

detailed in schedule A attached with the plaint) as also for

damages and mesne profits had been filed.

3. Defence of the defendant no.1 was that he is the owner of

the suit property. His contention was that Ganga Saran Dass

had gifted this property to Makhan Lal in 1901 and thereafter he

gifted it to him. His further contention was that Pt. Makhan Lal

had occupied ground floor and first floor of the premises. He

had made a will dated 121.8.1954 by virtue of which defendants

no.1 is owner of the suit property.

4. Trial judge had framed the following seven issues:

"1.Whether the plaintiff have locus-standi to file the present suit? OPP

2.Whether the suit is property valued for the purposes of court- fees and jurisdiction ?OPP

3.Whether the defendant No.1 was in service of the plaintiff as a Sewa Pujari and his service have been validly terminated on the grounds as alleged in paragraph 10 to 15 of the plaint? OPP

4.Whether the defendant No.1 is a trespasser and is liable to restore the possession of the suit premises to the plaintiff?OPP

5.Whether the occupation of defendant No.1 in the suit premises is that of an owner as alleged in paragraph No.3 of the additional pleas of the W.S.? OPD

6.Whether the defendant No.1 is in possession of the articles mentioned in schedule A attached with the plaint and is liable to hand over the same to the plaintiff? OPP

7.Relief."

5. Oral and documentary evidence was led by the respective

parties. Suit of the plaintiff was decreed. The impugned

judgment had upheld this finding of the trial judge. It was

reaffirmed that the plaintiff is entitled to possession of the suit

property; the defendant being only a pujari and his services

having been terminated, he had no right to remain in the temple

thereafter. Para 15 of the impugned judgment had noted that

the temple is not a public temple; it is a sort of family temple by

family settlement; for this reason no accounts has been get kept

for the expenses incurred in the temple.

6. This is a second appeal. After its admission, on 30.9.1986

the following substantial questions of law were formulated; they

inter alia read as follows:

"1. Whether the property in dispute it merely a family temple of the respondent when it is alleged in the plaint that the property was dedicated for religious purposes and when public were entering temple and making offerings?

2. Whether on the evidence on record the appellant was Shebait of the temple?

3. Whether respondent No.2 to 5 had locus standi to file a suit?"

7. On behalf of the appellant, it has been urged that there

was no evidence before the Court below to hold that the

plaintiffs had any locus standi to file the present suit. The

contention is that the lineage of succession has not been

established by plaintiffs no.2 to5. Attention has been drawn to

testimony of PW-1 wherein he has admitted that Niranjan Lal

was the adopted son of Gaga Saran Dass. It is pointed out that

this adoption deed has not been proved. There is no evidence

to substantiate this submission. Plaintiff no.1 was a deity; a

deity is always considered as a minor and can be sued through

his next friend; no such permission had been obtained from the

Court. For this proposition reliance has been placed upon a

judgment reported in AIR 1981 Cal. 259 Jogesh Chandra Bera

Vs. Sri Iswar Braja Raj Jew Thakur . Plaintiff no.2 to 6 have also

failed to show that they were the trustees or the manager of the

plaintiff no.1. Reliance has been placed upon a judgment

reported in AIR 1955 SC 493 Mst. Raj Kali Kuer Vs. Ram Rattan

Pandey to support a submission that a religious office can be

inherited and shebaitship is one such inheritable right. It is

submitted that the defendant no.1 was working as shebait and

was performing all such duties; he was not a mere pujari.

Attention has been drawn to testimony of PW-8 as also of DW-1

on this score. It is pointed out that Makhan Lal after whom

defendant no.1 had been appointed had in fact performed all

such duties of shebait. Shebaitship is inheritable; defendant

no.1 cannot be evicted. It is pointed out that the finding in the

impugned judgment in para 15 that it was a family temple is not

evidenced in pleadings of the Courts below. Findings in the

impugned judgment are perverse.

8. Arguments have been countered. It is submitted that

there are two concurrent finding of the two Courts below.

Unless the findings are perverse no interference is called for.

Reliance has been placed upon a judgment reported in (2001)

3SCCC 179 Santosh Hazari Vs. Purshottam Tiwari as also

another judgment of this Court reported in (1999) 3 SCC 722

Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar. It is

submitted that the concurrent findings of fact cannot be

disturbed. It is submitted that the defence of the defendant that

he is a shebait is contrary and conflicting position to his earlier

stand in written statement wherein he has claimed ownership of

the suit property. For this proposition reliance has been placed

upon AIR 1954 SC 69 Sree Sree Ishwar Sridhar Jew Vs. Sushila

Bala Dasi & Ors. It is pointed out that the plaintiffs no.2 to 6

were performing their duties as trustees and manager of the

temple; they had inherited this right from their father

Pt.Niranjan Lal Bhargava; this is an inheritable right. For this

proposition reliance has been placed upon AIR 2007 SC 2134

S.Rathinam Vs. L.S.Mariappan & Ors.

9. Record has been perused. The third substantial question

of law shall be addressed first.

10. Issue no.1 was framed by the trial Court in this record

which reads as follows:

"Whether the plaintiffs have locus standi to file the present suit? OPP.

11. Averments made in the plaint and the lineage of

succession depicted by them have been perused. Testimony of

PW-1 to PW-5 as also PW-8 and PW-9 has also been scrutinized.

It has come on record that Gopal Saran Dass was the owner of

the disputed property. He had purchased it vide sale deed

Ex.PW-8/5. After his death his son Ganga Saran Dass became

the owner of the property. Thereafter Niranjan Lal Bhargava

became his heir. Ganga Saran Dass had adopted Niranjan Lal

Bhargava; this was sometime in the year 1901. Admittedly the

Hindu Adoption and Maintenance Act was not in force at that

time. There was a categorical averment of the plaintiff in his

plaint about this fact to which there was no denial. The other

contention of the learned counsel for the respondent/plaintiff is

that an adopted son has the same status as that of a son and

although it was for the first time in the evidence of PW-1 that it

has been elicited that Ganga Saran Dass had adopted Niranjan

Lal but there was no cross-examination of PW-1 on this score at

all. The lineage of the plaintiff as owner of the suit premises

had been adequately proved. The will set up by the defendant

purported to have been executed by Makhan Lal in his favour

Ex.Dx had made a reference to moveable properties only.

Present suit property was not a part of Ex.Dx. Even otherwise

the claim of the defendant was that Makhan Lal had been gifted

this property by Ganga Saran Dass; which gift deed was also not

proved. The locus standi of the plaintiffs no.2 to 6 to file the

present suit had been adequately proved and affirmed by both

the two fact finding Courts below.

12. The judgment of Jogesh Chandra Bera (supra) is

inapplicable. This was a case where along with the plaint an

application for leave to sue as an indigent person had been filed.

It was held that a suit in the name of deity unless brought by the

shebait himself or a prospective shebait must be so instituted

through a next friend and the suit instituted without obtaining

such a leave is incompetent. Consequently the question of

granting leave to sue as an indigent person was not competent.

Ratio of this authority is inapplicable. Substantial question no.3

is answered accordingly.

13. The second substantial question of law was framed on the

additional plea set up by the defendant in his written statement

that he was a shebait of the temple. His contention being that

Makhan Lal was performing all the duties of a shebait and after

him defendant no.1 had been appointed in the same capacity.

These were fact finding issues and both the concurrent findings

of fact are against this proposition. Issue no.3 had been framed

in this context it reads as follows:

"Whether the defendant No.1 was in service of the plaintiff as a Sewa Pujari and his service have been validly terminated on the grounds of alleged in paragraph 10 to 15 of the plaint? OPP"

14. Issue no.5 is also relevant; it reads as follows:

"Whether the occupation of defendant No.1 in the suit premises is that of an owner as alleged in paragraph No.8 of the additional pleas of the W.S.?OPD"

15. Case of the plaintiff all along was that defendant no.1 was

a pujari; Pt.Makhan Lal had been appointed earlier and after his

death defendant no.1 was appointed as the pujari. This has

been reiterated in the version of PW-1, PW-8 and PW-9.

Defendant had set up a case of ownership in terms of a will of

Pt.Makhan Lal. The will Ex.Dx had not mentioned the disputed

property. The contention of the defendant that Pt.Makhan Lal

had received this property by way of gift from Ganga Saran

Dass had also been disbelieved. No such document had been

proved. Documentary evidence adduced by the defendant had

been rejected. Clear and cogent reasons for the said rejection

find mention in the judgment of both the two fact finding Court

below. Both the Courts have concluded that there was no

evidence to establish that Pt.Makhan Lal was a shebait; he was

performing his duties as a pujari only. Defendant no.1 was also

appointed in the same capacity i.e. in the capacity in which

Pt.Makhan Lal was working; it was that of a pujari.

16. The additional plea set up by defendant claiming adverse

possession in the suit property was a claim which is contrary to

his plea of shebaitship. In this context in the judgment of Sree

Sree Ishwar Sridhar Jew (supra) Supreme Court had returned a

finding in the following words:

20.We are in perfect accord with the observations made by Rankin C.J. If a shebait by acting contrary to the terms of his appointment or in the breach of his duty as such shebait could claim adverse possession of the dedicated property against the idol it would be putting a premium on dishonesty and breach of duty on his part and no property which is dedicated to an idol would ever be safe. The shebait for the time being is the only person competent to safeguard the interests of the idol, his possession of the dedicated property is the possession of the idol whose shebait he is and no dealing of his with the property dedicated to the idol could afford the basis of a claim by him for adverse possession of the property

against the idol. No shebait can, so long as he continues to be the shebait, ever claim adverse possession against the idol. Neither Nagendra nor the appellants who derive their title from the auction sale held on the 9th December, 1936, could therefore claim to have perfected their title to the premises No.41-A Grey Street by adverse possession.

17. Substantial question of law No.2 is also answered against

the appellant.

18. Substantial question of law no.1 does not emanate from

the pleadings of the parties; this has been conceded by both the

respective counsels. It was for the first time that in the

impugned judgment in Para 15 it had been noted that this

temple was a kind of a family temple and not a public temple.

19. Be that at it may, this substantial question of law not

emanating from the pleadings between the parties and no

arguments having been addressed on this score as this

observation makes no difference to the outcome of the case, this

Court shall not delve any further into this question of law.