Sita Ram Sao @ Sita Ram Sahu vs Braj Kishore Pandey
2023 Latest Caselaw 495 Jhar

                                        1             Second Appeal No. 61 of 1996(R)




            IN THE HIGH COURT OF JHARKHAND, RANCHI
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Second Appeal No. 61 of 1996(R)

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Sita Ram Sao @ Sita Ram Sahu, son of late Lochan Sao, resident of Japla Dharhara, P.O. and P.S. Husainabad, District Palamau. The following legal heirs of the sole appellant have been substituted vide order no.15 dt.3.4.02 1(a).Smt. Saraswati Devi-widow of deceased appellant no.1- Dead 1(b).Satyanarayan Pd. Gupta 1(c).Laxmi Narayan Gupta-Dead- the name of legal heirs of R-1(a) and R-(1)(c) are mentioned at the back of page no.2 of memo v/o dt. 2.5.22. 1(d).Madan Prasad Gupta 1(e).Dilip Kumar 1(f).Santosh Kumar 1(g).Manoj Kumar Gupta 1(a) to (g) all sons of late Sita Ram Sao.

...Plaintiff/Respondent/Appellants

-- Versus --

Braj Kishore Pandey, son of Bhagwat Pandey, resident of Husainabad, P.O. and P.S. Husainabad, District, Palamau ...Defendant/Appellant/Respondent

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CORAM: HON'BLE MR. JUSTICE SANJAY KUMAR DWIVEDI

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       For the Appellants       :- Mr. Amar Kumar Sinha, Advocate
                                   Mr. Sandeep Verma, Advocate
       For the Respondent       :- Mr. R.N.Choubey, Advocate
                                   Mr. Ajay Kumar Pathak, Advocate
                                        ----

26/31.01.2023       Heard Mr. Amar Kumar Sinha, the learned counsel assisted

by Mr. Sandeep Verma, the learned vice counsel appearing on behalf of

the appellants and Mr. R.N.Choubey, the learned counsel assisted by Mr.

Ajay Kumar Pathak, the learned vice counsel appearing on behalf of the

respondent.

The present Second Appeal has been filed being aggrieved

and dissatisfied with the judgment dated 30.07.1996 and the decree

calling thereon signed on 13.08.1996 by the learned court of Additional

District Judge, Palamau, Daltonganj in Title Appeal No.88 of 1991

allowing the appeal and there by reversing the judgment dated

24.09.1991 and the decree following thereon signed on 01.10.1999

passed in Title (Eviction) Suit No.77 of 1987 passed by learned Munsif,

Daltonganj, Palamau.

The appellants/plaintiff filed the Title (Eviction) Suit No.77

of 1987 for a decree for eviction against the respondent/defendant with a

prayer to evict the premises of the suit property within a time to be fixed

by the Court and in case of default the plaintiff be put in possession over

the premises of the suit through the process of Court at the cost of the

defendants and for other such relief.

The learned trial court vide judgment dated 24.09.1991,

decreed the suit on contest and directed to hand-over the vacant

possession of the suit premises within 60 days of that order else the

plaintiff will be at liberty to get the defendant evicted from the suit

premises at the cost of the defendant by the process of law and the

decree was also prepared. Later on, aggrieved with that, the

respondent/defendant filed the Title Appeal No.88 of 1991 and by

judgment dated 30.07.1996, the appeal was allowed with cost against

the respondent and decree and judgment passed by the learned trial

court was set aside and the suit of the plaintiff was dismissed. Aggrieved

with that, the appellants/plaintiff have filed the present second appeal

before the Court.

The appellants/plaintiff instituted the eviction suit stating

therein that, Babu Lochan Sao, father of the plaintiff purchased lands of

plot no.1183 measuring six decimals and plot no.1186 measuring two

decimals both appertaining to khata no.264 for Rs.75/- from

Masomat Domini daughter of Suka Ram in the year 1917. He further

purchased plot no.1188 measuring four decimals appertaining to khata

no.186 in the same year from Masomat Bhagwati and in the year 1919

he also purchased land of plot no.1187 measuring four decimals

appertaining to khata no. 264 from Srikishun Sao also and came in

possession of 16 decimals of land. The foresaid Babu Lochan Sao

establishes the Thakurbari over a portion of above mentioned land over

which Shri Ramjee, Jankiji, Laxmanji , Sheojee and Hanumanji were

established. It is said that these Thakurbari is popularly know as Lochan

Babu's Thakurbari. Besides above Construction, Babu Lochan Sao dug a

pucca well and constructed Dharamshala over the said land and, thus,

thakurbari, pucca well and Dharamshala covered about 12 decimals out

of 16 decimals of land covering plot n. 1188, 1186. Remaining land i.e

plot no. 1187 was in khas possession of the aforesaid Lochan Sao over

which the plaintiff has his cloth shops and residential quarters and few

shops of plaintiff. It is further said that Babu Lochan Sao for the proper

management as well as for performance of Puja in the said Thakurbari of

the above idols appointed Pandit Bhagwat Pandey as Pujari, but during

his life time, Babu Lochan Sao had taken away the management of Ram

Janki Mandir from the aforesaid Pandit Bhagwat Pandey and he was

himself managing the entire affairs of Ram Janki Mandir during his life

time and Pandit Bhagwat Pandey was acting only as Pujari of the said

Ram Janki Mandir. It is further said that Ram Janki Mandir is situated

within the compound of family house of the plaintiff and the members of

the public had no right to free entry and its controlled and allowed on the

wish of the family members of the plaintiff. The member of the public

had never contributed a single pie over the acquisition of the land of

Thakurbari, construction of Mandir or its maintenance or its rag-bhog etc.

Babu Lochan Sao had always exercised right of management. So, as long

as Babu Lochan Sao was alive, he was shebait (manager) of the Ram

Janki Mandir i.e. Thakurbari and after his death, the plaintiff who is the

only son of Babu Lochan is shebait of Ram Janki Mandir. It is specifically

said that pandit Bhagwat Pandey was only working as pujari in the said

Ram Janki Mandir, so he was allowed to reside in the premises of Ram

Janki Mandir by said Lochan Sao. After the death of Bhagwat Pandey in

the year 1965, his family members were allowed to continue their

residence in the premises of Ram Janki Mandir by the plaintiff. The

plaintiff in the capacity of shebait appointed Nand Kishore Pandey, the

eldest son of Pandit Bhagwat Pandey to work as Pujari in the said Ram

Janki Mandir. Unfortunately, Nand Kishore Pandey died in or about the

year 1975 and son the plaintiff appointed defendant as pujari to perform

puja in the said Mandir and since then the defendant was performing

puja in the said Mandir till his removal from the same and was in

occupation of premises attached to the thakurbari in the capacity of

pujari. It was further evident that the silver crown of Sri Ram, Janki and

Laxmanji were not in the temple and on enquiry the defendant informed

that the same were stolen away. It was further found that silver tashtari,

glass and ghari-ghant of brass meant for puja were also traceless from

the Mandir. Further the plaintiff learnt that the defendant had disposed of

the above mentioned articles and misappropriated the same. So, in the

above mentioned circumstances, the plaintiff again purchased ghari-

ghant and provided crown for idols. It was further learnt by the plaintiff

that instead of living life of sanctity, the defendant was involved in

gambling and was taking ganja and his character had also gown down

and so he was not fit to perform puja in the said Ram Janki Mandir. On

account of defendant's immoral as his health dwindled and has suffered

from T.B. in the above circumstances, the plaintiff in the capacity of

shebait informed the defendant that he was not fit to perform puja. The

plaintiff removed him from service and appointed Sri Damodar Tiwary to

perform puja in the said Mandir with effect from 23.5.1986. It is said that

if the premises would have been let out to a tenant then the same would

have fetched monthly rental of Rs.50/- per month.

3. It is further said that defendant removed from the post of

Pujari in the month of May, 1986. He was asked by the plaintiff to vacate

the premises of Mandir in his occupation as Pujari detailed in schedule of

the plaint but inspite of that the defendant had not vacated the suit

premises. The plaintiff served notice dated 24.11.86 through his lawyer

Sri S.G.A. Siddique upon the defendant through which he was also asked

to vacate the said premises so that puja of the deities might be

performed, in a be-fitting manner by Sri Damodar Tiwary within a

fortnight from the receipt of the notice. The same was received by the

defendant on 25.11.86, but till filing of the suit, he did not vacate the

suit premises, hence this suit. About cause of action, it is said that it

arose in the month of May, 1986 when defendant was removed from the

post of pujari and further on 24.11.86 when legal notice was issued by

the plaintiff and lastly on 25.11.86 when notice was received by the

defendant and instead of that he did not vacate the suit premises. Mainly

a decree for eviction and possession has been sought on behalf of the

plaintiff.

The respondent/defendant appeared in the suit and filed

written statement stating therein that the suit as framed is not

maintainable. The plaintiff has got no cause of action for the suit. The

plaintiff has no right to sue. The suit suffers from defect of non-joinder of

the parties as Thakurji and religious trust board are necessary party. It is

barred by law of limitation, specific relief act and Hindu religious trust

Act. It is said that the statements not specifically admitted in the written

statement shall be deemed to have been denied. The statements of

paragraph 1 has been said to be false and in correct and said that Babu

Lochan Sao never purchased any of the plot nos. 1183, 1186 and 1188

appertaining to khata nos. 264 and 186. plot no.1183 and 1186 was not

purchased by Lochan Sao from Masomat Domni in the year 1917. Plot

no.1183 during the cadestral survey was recorded as Gairmajarua malik

land and in the remark column of the aforesaid plot there is a statement

that aforesaid plot there is a statement that aforesaid plot was in

possession of Masomat Domni and there is also mention that this should

be read with entries in remark column of plot no.1175. It was also

mentioned that house standing over these plots was in dilapidated

condition and owner of the land was Benwari Lal and others. There is

also mentioned about rent of the land along with the house standing

over plot no.1175. According to the defendant, Domni was a kept of

Rangu Lal father of above Banwari Lal who had allowed her to remain in

the house. The temple or Thakurbari was constructed on this plot by the

permission of aforesaid landlord Banwari Lal and others, who voluntarily

donated the land for thakurbari and permitted Pandit Bhagwat Pandey to

establish and construct thakurbari. The land of plot no.1187 was acquired

through registered sale deed for the purpose of thakurbari in the name of

Lochan Sao from the contributions of the public. It is further said that

thakurbari which was constructed on plot no.1183 had no approach road

to go on public road because there was land of plot no.1186 in between

thakurbari and the main road. The worshipers of the deity and the public

felt necessity of plot no.186 to connect the thakurbari from the main

road, entrusted pandit Bhagwat Pandey to make effort to acquire the

land of plot no.1186 having an area of two decimals from the temple.

Pandit Bhagwat Pandey was an educated man and he had got love and

affection for Sanskrit and so he started a Sanskrit tol for teaching

Sanskrit in the thakurbari. He was a pujari of thakurbari as well as a

teacher of Sanskrit tol and his institution was so charming that high

officials and respectable persons always visited and they have also

written remarks in the register kept by Pandit Bhagwat Pandey which is

still with the defendant. The Deputy Commissioner, Palamau visited the

thakurbari and Sanskrit tol and advised Pandit Bhagwat Pandey to

acquire the adjacent land appertaining to plot no.1186 and 1188.

Accordingly, he acquired the lands of plot no.1186 and 1188 on payment

of Rs.125/- to government in the year 1919-1920 and then after he

regularly paid the rent for the above lands to the Ex-Landlord and

obtained rent receipts. After acquiring the land Pandit Bhagwat Pandey

took subscription from several persons and constructed several rooms

within the compound of thakurbari for holding classes for Sanskrit school

and for further construction of the temple. The management of

thakurbari has always been in the hands of the committee constituted for

the purpose by the respectable person of the locality. The managing

committee of thakurbari held a meeting on 23.8.1937 within the

premises of thakurbari under the president-ship of Babu Karamdeo

Narayan Singh and it was resolved by the resolution no.5 to hand over

the portion of the house in which Pandit Bhagwat Pandey was residing at

that time exclusively to him as it was constructed by Pandit Bhagwat

Pandey by his own efforts. Accordingly, the committee handed over the

house to him to occupy it for ever. The only condition imposed was that

Pandit Bhagwat Pandey would close the entrance from the side of

thakurbari which he complied. It is totally false to say that any land was

ever acquired by Lochan Sao for his own purpose. Statement of

paragraph 2 has been said wrong. According to the defendants it is

totally false to say that Lochan Sao alone established the thakurbari and

had installed idols of Ramji, Jankiji, Laxmanji, Sheoji and Hanumanji, but

it was result of joint effort of Pandit Bhagwat Pandey and Lochan Sao

and respectable persons of the locality. It is further said that of course

Lochan Sao being a pious man had made big contribution to the fund to

acquire other properties for thakurbari. Further it is said that it is false to

say that Lochan Sao alone got dug a pucca well. It was dug in the

premises of thakurbari with the help of the contributions of the public in

general. The allegation of the plaintiff regarding construction of

dharamsala by his father has also been said totally wrong. It is said that

committee had no knowledge about the construction. No dharamsala was

ever constructed in the premises of thakurbari rather there was Sanskrit

tol which was never meant for dharamsala. It is said that the plaintiff had

no idea about actual state of affairs of the constructions of thakurbari,

well and residential house. In facts, the thakurbari situates over plot

no.1188 where the Sanskrit tol with pucca well and residential house

stand over plot no.1186 and 1188. The defendant resides in this house.

There are three rooms also in the occupation of plaintiff and when he

was asked by the committee to vacate the same, he has filed this false

suit. It is totally false to say that plaintiff has any residential house over

any portion of plot no.1187. His residential house is situated over plot

no.1114 and 1115 and not over plot no. 1187 and that is quite separate

and has no attachment with the premises of thakurbari that is interfered

by public road over plot no.1168. Statement of paragraph 3 of the plaint

has also been denied and it is said that Pandit Bhagwat Pandey was

pujari and manager of the thakurbari. In the year 1980, the property

appertaining to khata no.181 having an area of 4.66 acres of village Japla

Dharhara was acquired through registered deed from one Banshidhar Lal

in the name of Lochan Sao in which there is clear averment that

properties is made for the income of thakurbari and for the management

of thakurbari and taking this aspect into consideration, the vendor sold

the same on a very low price i.e. for anulment price. Lochan Sao being

pious honest man to avoid future complications transferred the same to

the thakurbari vide registered deed no. 275 of the year 1921 and in that

deed he admitted Pandit Bhagwat Pandey to be the pujari and showing

further entitlement his heirs pujari and shebait of thakurbari. Further, it is

said that statement of the plaintiff regarding taking away of management

of Ram Janki Mandir from aforesaid Pandit Bhagwat Pandey is false.

Lochan Sao never took the management of Mandir from Bhagwat Pandey

and started to manage the affairs. It is said that Bandit Bhagwat Pandey

remained Pujari shebait and manager of the thakurbari throughout his

life and after his death, his elder son late Nand Kishore Pandey worked in

the above capacity till his death and thereafter this defendant is holding

the same. Anything contrary to this statement is false and incorrect.

Paragraph 4 of the plaint has been said false and incorrect. It is specific

that Mandir and thakurbari never meant for plaintiff's family deity nor it

situates within the campus of the family house of the plaintiff rather it is

held and possessed by the residents of the locality and it is a public

temple. It is totally absurd to say that public in general have no right to

free entry in the temple but they are so allowed specially to the sweet

will of the family members of the plaintiff. In fact public in general having

faith in Hindu religion have free entry and they worship the deity freely.

Every year on the occasion of Krishna Janamastmi Jhulan festival is

being celebrated by the public of locality. In the like manner in the

occasion of Ramnavami, Ramlila is being played by the public. Other

public meeting with regard to the welfare of the Hindu religion are also

held in the premises of thakurbari. In past also public in general used the

premises of thakurbari as the meeting place. It is further said that the

plaintiff was never appointed of shebait of thakurbari rather he is a self

styled shebait. The plaintiff is a dis-honest man having a covetus eye on

the valuable property of thakurbari, tried to grab the property of

thakurbari. The plaintiff managed frivolously to get exchange deed

executed in favour of his wife for the landed property of thakurbari

appertaining to khata no.181 area 4.33 acres. He succeeded to obtain

the mutation of his wife's name over the land of thakurbari bringing the

circle officer and his staff in collusion. When the matter came in

knowledge of defendant about nepharious game of ' plaintiff, he filed a

petition before the Land Reform Deputy Collector, Daltonganj to set aside

the mutation order. Plaintiff also did other mischievous acts to grab the

'lands of thakurbari. The allegation of paragraph has also been said false.

It is false to say that the plaintiff ever appointed Nand Kishore Pandey,

the elder brother of this defendant as pujari. The plaintiff had no

authority to appoint any one as pujari of thakurbari. It is further false to

say that the plaintiff removed the defendant from the post of pujari as he

is not so authorized. About paragraphs 6, and 9, it is said that contention

of these paragraphs are absurd and imaginary and denied by the

defendants. The allegations of the plaintiff leveled against the defendant

are baseless and imaginary. In fact, no such happenings, ever taken

place. The defendant is a very pious man. He lives a very pious life for

which he reserves his right for taking legal action against the plaintiff.

The plaintiff's allegation of paragraph 8 about his appointing Sri Damodar

Tiwary to perform puja with effect from 23.5.1986 is totally false. The

plaintiff has not given any address of so called Damodar Tiwary and the

defendant does not know any Damodar Tiwary, so he reserves a right to

submit about Damodar Tiwary. It is said that defendant is still working as

pujari of thakurbari. The allegation of paragraph 9 has also been denied

and said to be wrong. It is said that the plaintiff has no right to ask to

vacate the suit premises in which he is residing and also from the

premises of thakurbari. The plaintiff has not described the suit premises

by giving plot no., khata no. etc. over which he desires eviction and so it

is vague. The allegation of paragraph 10, 11 and 12 has also been said

to be incorrect. It is said that the defendant has replied plaintiff's notice

dated 24.11.86. It is further said that there is no relationship of landlord

and tenant in between the plaintiff and defendant. The plaintiff has filed

this suit for making legal gain and to harass the defendant. On the above

averments, it is said that the plaintiff's suit be dismissed with cost.

This second appeal was admitted on 19.08.1997 on the

following substantial question of law:

(A) Whether the Ist appellate court erred in holding that the suit premises is a part and parcel of the Idol property and confused in construing the two deeds namely Ext.7 and Ext.10?

(B) Whether the Ist Appellate court committed error of law in bringing into the matter of public or private trust in a simplicitor suit of ejectment between landlord and tenant.

Since both the law points are interlinked, which have been

addressed upon the Court and as such, both the law points have been

heard together.

Mr. Amar Kumar Sinha, the learned counsel appearing on

behalf of the appellants submits that the house constructed over the plot

no.1187 under the Khata No.264 was recorded for gair majurwa malik in

possession of Sri Kishun Sahu, son of Ratan Sahu. The said Sri Kishun

Sahu sold the land to Lochan Sahu by sale deed of the year 1919 and to

buttress his argument, he draws the attention of the Court to the sale

deed dated 17.10.1919 (Ext.10) and by way of referring the said exhibit,

he submits that it is clear from that deed that this land is purchased in

the name of Lochan Sahu. He further submits that the learned trial court

has rightly considered that the defendant has not filed any document

where has not adduced any evidence to prove that this land was

purchased from the contribution from the land-lord or the general public

and admittedly it has been held that the plot no.1187 was purchased by

Lochan Sahu and the plaintiff admittedly is the real son and heir of

Lochan Sahu. The Ext.1 series are the rent receipt which was being

issued in favour of the plaintiff has been considered by the learned trial

court and that is why it has been held that the land in question was

owned by the plaintiff. He submits that D.W.4 was examined and in

paragraph no.44 of the judgment he has also stated that the house in

which he is residing is plot no.1188 in which he has not given the

boundary of the house just identical to the boundary given in the plaint.

He further submits that the learned court has also considered that the

defendant admitted about the existence of land Thakur Bari in the name

of Lochan Sahu through registered deed dated 18.11.1918. the

Defendant has admitted that Lochan Sahu executed the deed of gift in

favour of Thakur Bari in the year 1921 so the deed of 1921 is admitted

by both the parties. He submits that the learned court on perusal of the

said sale-deed came to the conclusion that the land which was gifted to

Thakur Bari in the name of Ramji, Laxmanji etc. were acquired by

Lochan Sahu and that Lochan Sahu executed the deed of gift to Thakur

Bari in the name of idols. On perusal of this deed the learned court has

come to the conclusion that Thakur Bari has been constructed by Lochan

Sahu and the idols were established in the year 1919 and in the deed it

has been mentioned that Pandit Bhagwat Pandey has been appointed as

priest and manager of the Thakur Bari. So from this deed the learned

court has come to the conclusion that Pandit Bhagwat Pandey has been

appointed as priest and manager of the Thakur Bari by Lochan Sahu.

The deed also suggest that this Bhagwat Pandey maintained the

accounts of income and expenditure of the gifted property which used

for the benefit of Thakur Bari and it has also been averred that Bhagwat

Pandey will not execute any registered or unregistered deed or any

transfer verbal of the property mentioned in the deed and considering

the averments of the deed he submits that the learned trial court has

come to the conclusion that this deed which is admitted by the

defendant also, it is clear that the post of priest was not permanent and

was not heritable in nature. It is admitted from the evidence and it is

stated that he is residing in the suit premises as priest and manager of

the Thakur Bari in paragraph 42 of his evidence he has admitted that he

has been appointed as priest of Thakur Bari by the entire public and

after death of his brother Nand Kishore Pandey. Mr. Sinha, the learned

counsel further submits that considering the evidence of P.W.2 the

learned court has considered that Lochan Sahu appointed Bhagwat

Pandey as priest and after Bhagwat Pandey Nand Kishore Pandey and

after Nand Kishore Pandey, Braj Kishore Pandey was appointed as priest.

He further submits that's considering all these facts and the exhibits

including the Ext.7 which is a gift deed, the learned trial court has come

to the conclusion that the said premises has been constructed over the

plot no.1187 and it is admitted that there is plot no.1187 was purchased

by Lochan Sahu. Lochan Sahu appointed Bhagwat Pandey as priest and

in this capacity he is residing in the suit premises and the parties were

residing in the suit premises as Pujari in the Thakur Bari. The learned

trial court has further held that in the deed of 1921 it has been stated

that Lochan Sahu has appointed Bhagwati Pandey as priest and

thereafter also his heirs and the entire Hindu community will have a right

to appoint any one as priest of the Thakur Bari. It has been stated that

the learned court has held that it is clear that the post of priest of this

Thakur Bari is not heritable and the priest is to be appointed and

pursuant thereto it has been held that the plaintiff is the land lord of suit

premises. He further submits that in view of the definition of Bihar

Building (Lease, Rent and Eviction) Control Act, 1982, a person who

occupies a building as an employee either on payment of rent or

otherwise- is a tenant and in that view of the matter, the learned trial

court has held that the defendant is residing in the suit premises and is

employee of the plaintiff and in view of the rent he is doing the work of

Pujari of Thakur Bari. He submits that in that view of the matter the

learned trial court has rightly directed holding that the plaintiff is the land

lord of the suit property and directed to evict. He submits that the

learned appellate court has reversed the finding of the learned trial court

and he has decided the right, title and interest which is prohibited under

section 11(i)(a) of the said Act and to buttress his argument Mr. Sinha,

the learned counsel relied in the case of "Rajendra Tiwary v. Basudeo

Prasad and Another" reported in AIR 2002 SC 136. Paragarph nos. 7 and

8 of the said judgment are quoted hereinbelow:

7. It is evident that while dealing with the suit of the plaintiffs for eviction of the defendant from the suit premises under clauses (c) and (d) of sub-section (1) of Section 11 of the Act, courts including the High Court were exercising jurisdiction under the Act which is a special enactment. The sine qua non for granting the relief in the suit, under the Act, is that between the plaintiffs and the defendant the relationship of "landlord and tenant" should exist. The scope of the enquiry before the courts was limited to the question: as to whether the grounds for eviction of the defendant have been made out under the Act. The question of title of the parties to the suit premises is not relevant having regard to the width of the definition of the terms "landlord" and "tenant" in clauses (f) and (h), respectively, of Section 2 of the Act.

8. Inasmuch as both the trial court as well as the first appellate court found that the relationship of "landlord and tenant" did not exist between the plaintiffs and the defendant, further enquiry into the title of the parties, having regard to the nature of the suit and jurisdiction the court, was unwarranted."

Mr. Sinha, the learned counsel for the appellant submits

that the learned appellate court has wrongly interpreted the Ext.7 which

is gift deed and sale deed Ext.10 and considering this aspect of the

matter, the law points has been framed by this Court while admitting this

Second Appeal. He further submits that once the right, title and interest

of appellant was held considering those documents, the learned

appellate court was erred in interpreting those two documents and in

that view of the matter, the reversal order is bad in law and law points

may kindly be allowed in favour of the appellants. He further submits

that identical was the situation in the case of Puran Rai and Others v.

Sardar Sohan Singh which was decided by the co-ordinate Bench of this

Court by judgment dated 15.3.1990 reported in 1990 BBCJ 334. On

these grounds, he submits that the law points may kindly be answered in

favour of the appellant as the reversal judgment by the learned appellate

court is bad in law.

On the other hand, Mr. Choubey, the learned counsel

appearing on behalf of the respondents submits that the learned

appellate court has rightly interpreted this two exhibits namely Ext.7

which is a gift deed and Ext.10 which is sale deed in favour of the

appellants. He submits that the sale deed was executed (Ext.10) on

17.10.1919 whereas the gift deed (Ext.7) is dated 20.05.1921. By way of

placing the Ext.7 Mr. Choubey, the learned counsel for the respondent

submits that it was executed by the father of the appellant/plaintiff and

reading in the entire contents of the gift deed it is crystal clear that the

trust was created in favour of the deities and if the public at large is

praying therein, it is a public trust and this aspect of the matter has been

rightly considered by the learned appellate court. He further submits that

it is well settled that once the trust is created and public at large are

offering prayer and there are different deities, it is not believable that it

is a private property. He submits that identical was the situation in the

case of "The Bihar State Board of Religious Trust v. Bhubneshwar Prasad

Choudhary" reported in 1974 BBCJ 590 paragraph no.8 of the said

judgment is quoted hereinbelow:

"We find ourselves unable to agree with the learned Judges of the High Court. We are of the opinion that the judgment of the High Court proceeds from failure to appreciate the effect of the judgment of this Court in 'Deoki Nandan v. Murlidhar'. In that case the dedication of the properties was not as complete and as categorical as in the present case. Only in the absence of male issue, the entire immovable property was to stand endowed in the

name of the deity. Half of the income from the properties was to be taken by the two wives of the testator for their maintenance during their lifetime. If a son was born to the testator then the properties were to be devided between the son and the temple. A committee of four persons was appointed to look after the management of the temple and its properties, and of these, two were not the relations of the testator. The committee "may appoint the testator's nephew as Mutawalli by their unanimous opinion." The documents in the present case are only slightly different in that they provide for the members of the family being shebaits. But the panches are all outsiders. In 'Deoki Nandan v. Murlidhar' this Court referred to certain facts as indicating that the endowment is to the public:

"Firstly, there is the fact that the idol was installed not within the precincts of residential quarters but in the separate building constructed for that very purpose on a vacant site. And as pointed out in 'Delroos Banoo Begum v. Nawab Syed Ashgur Ally Khan(1), (1) (1875) 15 Ben.L.R.167, 186. It is a factor to be taken into account in deciding whether an endowment is private or public, whether the place of worship is located inside a private house or a public building. Secondly, it is admitted that some of the idols are permanently installed on a pedestal within the temple precincts. That is more consistent with the endowment being public rather than private. Thirdly, the puja in the temple is performed by an archaka appointed from time to time."

According to him, the learned appellate court has rightly

reversed the finding of the learned trial court. He further refers to Ext.B

which is a registered deed, it is a registered deed with regard to Sanskrit

tol for teaching the students in the Sanskrit tol and he refers to Ext.K

which is a resolution deed in which it has been stated that Pujari has

made the house in his own within the Thakurbari. He submits that these

two exhibits fortify the case of the respondents. On these grounds, he

submits that there is no illegality in the order of the learned appellate

court and the law points may kindly be answered in favour of the

respondent/defendant.

In view of the above submission of the learned counsels

appearing on behalf of the parties, the Court has gone through the

materials on record including the lower court records, the judgment of

the learned trial court as well as the learned appellate court. The Ext.10

is admitted in the name of Lochan Sao and in a deed itself there is recital

about existence of Thakurbari of Lochan Sao which is adjacent to this

plot and there is further recital that Lochan Sao was anxious of acquiring

the property of the deed for the purpose of Thakurbari. The plaintiff

himself has stated that the premises, from where eviction has been

sought, has been described to exist in southern portion of the plot

no.1187 for which the plaintiff's case in paragraph no.5 is that Pandit

Bhagwat Pandey was allowed to reside in the premises of Ram Janki

Mandir by said Lochan Sao and after his death in the year 1965 his

family members were allowed to reside in the said premises and lastly in

the year 1975 after the death of Nand Kishore Pandey, the plaintiff was

allowed to reside in the suit premises. The learned appellate court has

concluded that there is nothing to decide about the validity of occupation

of the plaintiff of three of the rooms in this case, however, the portion of

this plot no.1187, over which suit premises exists is in the use of Mandir

and Thakurbari and if it is found that temple, Thakurbari and the deities

established are public deities then there would be only conclusion that

the suit premises belonged to the public trust and the plaintiff and his

family will have no concern with the said trust. Ext.7 which is an

admitted document had been filed in the case and it is the best evidence

to reach the averments of either of the parties. Ext.7 is the deed of gift

executed by Lochan Sao in favour of the deities concerning ten bighas of

his landed properties. Looking into the recital of the gift deed it

transpires that the plaintiff Lochan Sao who constructed the temple and

Tharkurbari and has established the idols of Ram Jee, Janki Jee, Laxman

Jee, Sheo Jee and Hanuman Jee. In the said deed, it has been further

recited that the management of the property will be by Bhagwat Pandey

and the Hindu residents of Town Hussainabad will have the right to ask

about the income and expenditure from Pandit Bhagwat Pandey. It has

been further stated there that Pandit of the Thakurbari will have an

account of earning and expenditure of Thakurbari and Shivala. The

Mandir and Thakurbari constructed earlier by execution of deed was also

kept in management of Pandit Bhagwat Pandey and the public in general

were entitled by him to ask about the income and expenditure and in

such a situation any assertion regarding private use of the same and

non-interest of the public in general in the affairs of the Thakurbari is a

vital question to be looked into to find out the correctness of the

appellate court order. The question remains that when the said

Thakurbari was a private property of the appellant whereas the question

of keeping the earning and expenditure of the said Thakurbari by Pandit

Bhagwat Pandey, and it appears that the learned appellate court has

rightly interpreted the Ext.7 and Ext.10. Admittedly the Ext.10 is a sale

deed of 17.10.1919 whereas the Ext.7 was of 20.05.1921. In the sale

deed it has been stated that the land in question was being acquired for

Thakurbari. Thus, the spirit of Ext.7 suggest that it was a trust created

for the public benefit and the temple is for general public. Dealing with

the distinction between the public and private endowments in Hindu law,

Sir Dinshah Mulla has said at p.529 of his principles of Hindu Law (11 th

Edn.)- "religious endowments are either public or private. In a public

endowment the dedication is for the use or benefit of the public. When

property is set apart for the worship of a family god in which the public

are not interested, the endowment is a private one. It also shows that

there may be a trust created for the worship of a family idol in which the

public may be interested and this also indicates that the definition was

intended to cover only the public trusts. A reference may be made to the

caes of "Mahant Ram Saroop Dasji v. S.P. Sahi, Special Officer-in-Charge

of the Hindu Religious Trusts and Others", reported in 1959 Supp.(2) SCR

583. Paragraph no.9 of the said judgment is quoted hereinbelow:

"9. Secondly, it may be asked why the legislature having before it the earlier enactments which applied to public trusts only, failed to use the word "public" before the word "purpose" in the definition clause? This is a pertinent question which must be faced. The answer, we think, is this. Charitable trusts are public trusts, both under the English and Indian law; in England a religious trust being a form of charitable trust is also public, but in India, according to Hindu law, religious trust may be public or private. But the most usual and commonest form of a private religions trust is one created for the worship of a family idol in which the public are not interested. Any other private religious trust must be very rare and difficult to think of. Dealing with the distinction between public and private endowments in Hindu law, Sir Dinshah Mulla has said at p. 529 of his Principles of Hindu Law (11th Edn.)--

"Religious endowments are either public or private. In a public endowment the dedication is for the use or benefit of the public. When property is set apart for the worship of a family god in which the public are not interested, the endowment is a private one."

Obviously enough, the definition clause merely quotes the typical example of a private endowment mentioned above. It is also significant that the exclusion of an endowment created for the worship of a family idol is based on the adjectival clause which follows it viz. "in which the public are not interested". In other words, the exclusion is based on the essential distinction between a public and private trust in Hindu law. If the test is that the public or any section thereof are not interested in the trust, such a test is characteristic of all private trusts in Hindu law. It also shows that there may be a trust created for the worship of a family idol in which the public may be interested. Those are cases of trust which began as a private trust but which eventually came to be thrown open to the public. This also indicates that the definition was intended to cover only public trusts".

The origin of the temple, the manner in which its affairs are

managed, the nature and extent of gifts received by it, rights exercised

by the devotees in regard to worship therein, are relevant factors to

establish whether a temple is a public temple or a private temple. The

participation of the members of the public in the darshan in the temple

and in the daily acts of worship or in the celebrations may be a very

important factor to consider in determining the character of the temple.

In the case in hand, the appellant has not adduced the evidence to show

that there is restriction in participation by public for darshan and in this

regard a reference may be made to the case of "Shri Ram Mandir, Indore

v. State of Madhya Pradesh and Others" reported in (2019) 18 SCC 1994.

Paragraph nos.17, 18, 19 and 20 of the said judgment are quoted

hereinbelow:

"17. According to the respondent State, Shri Ram Mandir has always been a part of the list of public temples. In 2013, Madhya Pradesh Government published a Directory containing names of all public temples in District Ujjain updating till 31-12- 2012. Shri Ram Mandir is mentioned therein in the List as Entry 135 which clearly shows that the temple has been recognised as a public temple. Though, this document -- List of public temples is subsequent to the suit, the entry of Shri Ram Mandir as public temple in the register is a strong piece of evidence to hold that Shri Ram Mandir is a public temple. Be it noted that Bajrang Das and Ram Das are only shown to be the pujaris.

18. In Goswami Shri Mahalaxmi Vahuji v. Ranchhoddas Kalidas [Goswami Shri Mahalaxmi Vahuji v. Ranchhoddas Kalidas, (1969) 2 SCC 853] , the Supreme Court held that (SCC p. 861, para

16) "the origin of the temple, the manner in which its affairs are managed, the nature and extent of gifts received by it, rights exercised by the devotees in regard to worship therein, are relevant factors to establish whether a temple is a public temple or a private temple." Likewise, as held in Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan [Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan, (1964) 1 SCR 561 : AIR 1963 SC 1638] , the participation of the members of the public in the darshan in the temple and in the daily acts of worship or in the celebrations may be a very important factor to consider in determining the character of the temple. In the present case, the appellant has not adduced any evidence to show that there is restricted participation of the public for darshan.

19. It is to be pointed out that in the same premises, apart from, Shri Ram Mandir, there is a Ganesh temple which has a different pujari and there is also a Maruthi Mandir. In their evidence, Bheru Lal (PW 2) and Poor Singh (PW 3) have stated that the pooja at Ganesh Mandir is performed by Satyanarayan, brother of Bheru Lal (PW 2). There are thus two different pujaris who perform pooja for two separate idols situated in the same premises and they have been so performing pooja for generations. Contention of PW 1 that no outsider can come and perform pooja

and archana in the premises of Shri Ram Mandir was rightly rejected by the first appellate court as the very premises has three deities.

20. Another important aspect which indicates the public character of the temple is that there is no blood relationship between the successive pujaris. In the present case, no evidence has been adduced to show that the temple belonged to one family and that there were blood relations between the successive pujaris. If the temple was a private temple, the succession would have been hereditary and would be governed by the principles of Hindu succession i.e. by blood, marriage and adoption. In the case in hand, succession is admittedly governed by Guru-shishya relationship. Each pujari is not having blood relation with his predecessor pujari. When the pujariship is not hereditary, as rightly held by the High Court, Shri Ram Mandir cannot be held to be a private temple."

Where a person claims to be a shebait despite the lack of a

legal title, the relevant enquiry before the court is whether the person

was in actual possession of the debutter property and was exercising all

the rights of a shebait. It is well-settled that where a person is in

complete and continuous management of the deity's affairs coupled with

long, exclusive and uninterrupted possession of the appurtenant

property, such a person may be recognized as a shebait despite the

absence of a legal title to the rights of a shebait. The right of

performance of religious worship as a Pujari is not the same as the

exercise of the rights of management. The manager may appoint one or

several Pujaris to conduct the necessary ceremonies. In the ultimate

analysis, the right of a person other than a de jure trustee to maintain a

suit for possession of trust property cannot be decided in the abstract

and it depends upon the facts of each case and this aspect of the matter

has recently be considered by the Hon'ble Supreme Court in the case of

"M. Siddiq (Ram Janambhumi Temple-5J.) v. Suresh Das" reported in

(2020) 1 SCC 1. Paragraph nos.429, 471 to 475, and 478 to 508 of the

said judgment are quoted hereinbelow:

429. The recognition of a person or a group of persons as shebaits is a substantive conferment of the right to manage the affairs of the deity. A necessary adjunct of the status of a shebait, is the right to brings actions on the behalf of an idol and bind it and its properties to the outcomes. The purpose for which legal personality is conferred upon an idol as the material embodiment of the pious purpose is protected and realised through the actions of the human agent, that is, the shebait. The shebait is entrusted with the power and the duty to carry out the purpose of the donor in respect of the idol and its properties. In the vast majority of cases, a shebait is appointed in accordance with the terms of a deed of dedication by which property is endowed to an idol. It is for the protection of this property that the law recognises either the donor or a person named in the deed of endowment as the shebait. In the absence of an expressly appointed or identified shebait, the law has ensured the protection of the properties of the idol by the recognition of a de facto shebait. Where a person is in complete and continuous management of the deity's affairs coupled with long, exclusive and uninterrupted possession of the appurtenant property, such a person may be recognised as a shebait despite the absence of a legal title to the rights of a shebait. This will be adverted to in the course of the judgment.

471. Though both the decisions of the Privy Council adverted to above were in the context of the right of a Mahant to bring an action on behalf of a mutt, the position in law that a de facto Mahant is entitled to institute an action on behalf of the mutt for its benefit has equally been applied to a de facto shebait of an idol and its properties. In Panchkari Roy v. Amode Lal Barman [Panchkari Roy v. Amode Lal Barman, 1937 SCC OnLine Cal 105 : (1937) 41 CWN 1349] , Ramdas Mohunt, by virtue of a will, dedicated property to certain idols and appointed his widow as the manager of the property till the attainment of the age of majority of their daughter, at which point, she would take over as a shebait. The widow sold the property as secular property and the daughter, upon attaining majority, alleged that though the property was secular, it devolved upon her by the virtue of the will. She sold the property to another party. The plaintiff, claiming to be the religious preceptor of the debutter instituted a suit alleging that the idols were handed over to him. The question before the Court was whether the plaintiff, who was not a member of the family or named in the will, could validly institute a suit in a private endowment. The relevant question before the Calcutta High Court was whether the plaintiff was a de facto shebait. B.K. Mukherjea, J. (as he then was) held : (SCC OnLine Cal para 8) "8. ... The Judicial Committee in Ram Charan Das v. Naurangi Lal [Ram Charan Das v. Naurangi Lal, 1933 SCC OnLine PC 6 :

(1932-33) 60 IA 124 : AIR 1933 PC 75] and again in Mahadeo Prasad Singh v. Karia Bharthi [Mahadeo Prasad Singh v. Karia Bharthi, 1934 SCC OnLine PC 64 : (1934-35) 62 IA 47 : AIR 1935 PC 44] laid down that a person in actual possession of the Math is entitled to maintain a suit to recover property appertaining to it not for his own benefit but for the benefit of the Math. ... There may be and in fact there is difference between a Math and an idol, but I do not see any reason why a de facto shebait cannot be allowed to sue in case of family endowment or private debottar. ... In order to make a person a de facto shebait it is necessary, however, that he should be in actual possession of the office and the debottar estate. ... The de facto shebait would, in my opinion, be one who exercises all the functions of a shebait and is in possession of the debottar property though the legal title may be lacking."(emphasis supplied)

472. Where a person claims to be a shebait despite the lack of a legal title, the relevant enquiry before the court is whether the person was in actual possession of the debutter property and was exercising all the rights of a shebait. The paramount interest in the protection of the debutter property underlines the recognition of a de facto shebait. Where there is no de jure shebait, the court will not countenance a situation where a bona fide litigant who has exercised all the managerial rights over the debutter property cannot be recognised in law as the protector of the property. It is only for the paramount interest of the institution that the right to sue is conceded to persons acting as managers though lacking a legal title of a manager.

473. This rationale was outlined by the Madras High Court in Subramania Gurukkal v. Abhinava Poornapriya A. Srinivasa Rao Sahib [Subramania Gurukkal v. Abhinava Poornapriya A. Srinivasa Rao Sahib, 1938 SCC OnLine Mad 424 : AIR 1940 Mad 617] . The Court of Wards dismissed the "archaka" in possession of lands belonging to a temple on the ground that he had failed to render services and account for certain charges made on the property. A suit was then filed by the Jagirdar represented by his next friend the manager of the estate under the Court of Wards as a trustee of the temple to recover possession. The order of dismissal was passed after the death of the previous Jagirdar. It is after the suit was instituted and before the decision in the suit that a notification was passed making the new Jagirdar a ward under the Act. The question arose as to whether the order of dismissal was validly passed. The Court held that where the successor of the Jagirdar took no step to assume control, the Court of Wards assumed the position of a de facto trustee. Wodsworth, J. held : (SCC OnLine Mad para 8) "8. ... It is the duty of the court to protect trust property from

misappropriation and diversion from the objects to which it was dedicated. When trust property is without a legal guardian owing to defects in the machinery for the appointment of a trustee or owing to the unwillingness of the legal trustee to act, it would be a monstrous thing if any honest person recognised as being in charge of the institution and actively controlling its affairs in the interests of the trust should not be entitled, in the absence of any one with a better title to take those actions which are necessary to safeguard the objects of the trust."

474. This observation of the Madras High Court in Subramania Gurukkal case [Subramania Gurukkal v. Abhinava Poornapriya A. Srinivasa Rao Sahib, 1938 SCC OnLine Mad 424 : AIR 1940 Mad 617] merits a closer look for two reasons : First, the Court held that the right to bring an action to protect the interest of the trust vests in a person who is "recognised as being in charge of the institution and actively controlling its affairs". A single or stray act of management does not entitle a person to be determined as a de facto shebait. The relevance of this observation shall be considered shortly. Second, the de facto shebait is vested with a right to bring an action only in the absence of a person with a better title i.e. the de jure shebait. With the above conditions, the Court held : (SCC OnLine Mad paras 7-8) "7. I am moreover inclined to think, quite apart from these statutory provisions, that a de facto trustee of a Hindu temple in actual management of that temple and acting bona fide in the interests of the institution can validly pass an order dismissing a temple servant or officer, provided that the dismissal is for good grounds and that the procedure is one to which no objection can be taken. ...

8. ... There is moreover no doubt as to the capacity of a de facto trustee in possession and management of a temple to bring a suit for the recovery of temple lands."

In this view, a person in actual management and acting bona fide for the interests of the institution can bring a claim for the recovery of temple property as a de facto shebait.

475. It is relevant here to advert in some detail to the Full Bench judgment of the Madras High Court in Sankaranarayanan Iyer v. Sri Poovananathaswami Temple [Sankaranarayanan Iyer v. Sri Poovananathaswami Temple, 1949 SCC OnLine Mad 83 : AIR 1949 Mad 721] . In this case, the de jure trustee alienated the properties of a temple and his whereabouts were not known. The succeeding trustee appointed under a compromise decree passed by the court instituted a suit for the recovery of possession of the suit property as the property of the temple. It was contended that independent of the compromise decree, he was vested with the right to institute a suit for the protection of the debutter properties

as the de facto manager. P.V. Rajamannar, C.J. held : (SCC OnLine Mad) "... In the case of these endowments the so-called trustee is not really a trustee, in the technical sense, in whom the property is vested. He is really a manager (even in cases where he also has a beneficial interest in the usufruct) and the title always is vested in the idol or the institution. In either case, the analogy is to that of an individual having a manager to carry on the administration of his affairs and properties. Viewed in this light, the position reduces itself to this. In some cases, the manager has a rightful claim to the office of manager, in other cases, his only claim is that he is in actual possession of the office. "De facto" means, "by the title of possession", in antithesis to "de jure" i.e. "by the title of right". So long as the action is for the benefit of the real owner, namely, the idol or the mutt, and the person bringing the action is the only person who is in management of the affairs of the idol or the mutt for the time being, there is no reason why such person should not be allowed to maintain the action on behalf of the idol or the mutt."(emphasis supplied) The above observations clarify that a person claiming to be de facto shebait must be in exclusive possession of the debutter property and must be the only person in management of the property.

478. All the above observations are of crucial importance. For, in Sankaranarayanan Iyer [Sankaranarayanan Iyer v. Sri Poovananathaswami Temple, 1949 SCC OnLine Mad 83 : AIR 1949 Mad 721] and in the consistent jurisprudence of our courts thereafter, [Palaniappa Goundan v. Nallappa Goundan, 1950 SCC OnLine Mad 103 : AIR 1951 Mad 817; Mohideen Khan v. Ganikhan, 1955 SCC OnLine AP 201 : AIR 1956 AP 19; Vankamamidi Balakrishnamurthi v. Gogineni Sambayya, 1957 SCC OnLine AP 328 : AIR 1959 AP 186; Commr., Hindu Religious and Charitable Endowments v. P.R. Jagnnatha Rao, 1976 SCC OnLine Mad 93 : (1974) 87 LW 675; D. Ganesamuthuriar v. Idol of Sri Sappanikaruppuswami, 1974 SCC OnLine Mad 36 : AIR 1975 Mad 23; Lalji Dharamsey v. Bhagwandas Ranchghoddas, 1980 SCC OnLine Bom 40 : 1981 Mah LJ 573; Shri Parshvanath Jain Temple v. Prem Dass, 2008 SCC OnLine Raj 928 : (2009) 1 RLW (Rev) 523] it has been held that a stray act or intermittent acts of management do not vest a person with the rights of a de facto shebait. Absent a deed of dedication, the contention urged by Nirmohi Akhara that they have been in management and charge of the disputed property is a claim in law, for the rights of management as de facto shebaits. Both Viswanatha Sastri and Raghava Rao, JJ. in Sankaranarayanan Iyer [Sankaranarayanan Iyer v. Sri Poovananathaswami Temple, 1949 SCC OnLine Mad 83 :

AIR 1949 Mad 721] unequivocally held that isolated acts do not vest a person with the rights of a de facto shebait. The conduct in question, must be of a continuous nature to show that the person has exercised all the rights of a shebait consistently over a long period of time. The duration of time that would satisfy this requirement would, by necessity, be based on the facts and circumstances of each case. Raghava Rao, J. endorsed the view of Viswanatha Sastri, J. but went a step further to outline the practical difficulties in laying down a standard against which the acts of a person claiming to be a de facto shebait must be tested. The caution against adopting a low legal threshold to confer on a person who merely has possession of the debutter property and exercises intermittent managerial rights the position of a de facto trustee is well founded.

479. A de facto shebait is vested with the right to manage the debutter property and bring actions on behalf of the idol. A bona fide action for the benefit of the idol binds it and its properties. As compared to a de jure shebait whose rights can legally be traced to a deed of endowment, a de facto shebait is vested with the right by mere possession and exercise of management rights. The protection of the idol's properties is at the heart of this extraordinary conferral of rights. If courts were to adopt a standard that is easily satisfied, large tracts of debutter property may be left at the mercy of persons claiming to be in possession of and managing such properties. It is the duty of the court in every case to assess whether there has been not just exclusive possession but a continuous and uninterrupted exercise of all management rights which are recognised by the beneficiaries of the trust property before conferring on a person a right to which they have no legal title.

480. The duties that bind the exercise of powers of a de jure shebait apply equally to a de facto shebait. Thus, no action can be brought by the de facto shebait which is not in the beneficial interest of the idol or its properties. However, the position of a de facto shebait and a de jure shebait is not the same in all respects. In Sankaranarayanan Iyer [Sankaranarayanan Iyer v. Sri Poovananathaswami Temple, 1949 SCC OnLine Mad 83 : AIR 1949 Mad 721] , Viswanatha Sastri, J. held : (SCC OnLine Mad) "... It should be observed that the rights of a de facto trustee are not in all respects identical with those of a de jure trustee. A de jure trustee of a public religious endowment can be removed only for misconduct and that only in a suit instituted with the sanction prescribed by Section 92, Civil Procedure Code or Section 73 of Madras Act 2 of 1927. Where, however, there is only a de facto shebait functioning as such, it is open to persons interested in the trust to bring a suit under the above provisions alleging a vacancy

in the office and requiring that it should be filled up by the appointment of a trustee by the court. This would entail the removal of the de facto trustee without any misconduct on his part. ... The de facto trustee so long as he is functioning as such, has, from the necessities of the situation, the right to bring suits on behalf of and in the interests of the trust for evicting trespassers claiming adversely to the trust. In this respect and for this purpose, his rights and powers are the same as that of a de jure trustee." A de jure shebait can be removed from office only on the grounds of mismanagement or claiming an interest adverse to the idol. However, no such averment is required to remove a de facto shebait. A de jure shebait may, unless the right of the de facto shebait has been perfected by adverse possession, displace a de facto shebait from office and assume management of the idol at any point. Further, where there is a de facto shebait, a suit may be instituted under Section 92 of the Civil Procedure Code, 1908 requiring the court to fill up the vacancy by the settling of a scheme. It is for the limited purpose of bringing an action for the protection of the idol that the rights and powers of the de facto shebait are the same as that of the de jure shebait.

481. The position of law that a person in continuous and exclusive possession of the debutter property who exercises management rights in the interests of the idol can bring actions on its behalf has found recognition by this Court in Vikrama Das Mahant v. Daulat Ram Asthana [Vikrama Das Mahant v. Daulat Ram Asthana, AIR 1956 SC 382] . The appellant was confirmed as a manager by virtue of a judgment [Bikrama Das v. Gomti Das, 1935 SCC OnLine PC 44 : (1936) 43 LW 62] of the Privy Council (on the ground that the previous Mahant had transferred the property to him). Prior to the date of the judgment of the Privy Council, another compromise decree was entered into by the then Mahant with certain persons who instituted a proceeding to have him removed. While some of the persons who brought the actions took over as trustees under the terms of the compromise, one of them took over as the Mahant and entered into possession of the property. Three of the trustees and the successor of the previous Mahant filed a suit against the appellant. Both lower courts held against the appellant. The High Court held that even if the compromise decree is set aside, the plaintiffs are entitled to maintain the suit by virtue of being de facto trustees whose possession has been clear and undisputed. Both courts below recorded that pursuant to the compromise decree, the plaintiffs and the appointed Mahant entered into possession and the properties were mutated in the name of the Mahant, and had been in possession since then. B. Jagannadhadas, J. speaking for a Constitution Bench of this Court in Vikrama Das Mahant

case [Vikrama Das Mahant v. Daulat Ram Asthana, AIR 1956 SC 382] held : (AIR p. 390, paras 14-16) "14. ... the question before us is whether a person who has been in de facto possession and management of the Asthan and its properties from 1934 to 1941 (and thereafter up-to-date) claiming to be its trustee under the decree of a court, valid or invalid has not sufficient interest to maintain proceedings for the warding off of a cloud cast by the defendant's actions against the interests of the Asthan. ...

15. ... where public trusts are concerned, courts have a duty to see that their interests and the interests for whose benefit they exist are safeguarded. ...

16. ... We consider that, in view of Ram Sarup Das's long management and possession as Mahant and in view of the fact that he is purporting to act on its behalf and for its interests, it is proper that he should be allowed to continue to act on behalf of the trust until his title is investigated in appropriate proceedings and that this Court should grant a decree in his favour in these proceedings for the benefit of the trust."

The Court affirmed that it is only for the paramount interest of the institution that the right of suit is conceded to persons acting as managers though lacking a legal title of a manager. The long management and possession of the claimant in the case vested in him a right to act on behalf of the deity to protect its interests.

482. In Sree Sree Kalimata Thakurani of Kalighat v. Jibandhan Mukherjee [Sree Sree Kalimata Thakurani of Kalighat v. Jibandhan Mukherjee, AIR 1962 SC 1329] , a suit was instituted under Section 92 of the Code of Civil Procedure, 1908 for the framing of a scheme for the proper management of the seva-puja of the Sree Kali Mata Thakurani and her associated deities and for the proper management of the vested properties. A scheme was framed and subsequently challenged on the ground that the inclusion of de facto shebaits in the management committee in the scheme was impermissible. J.R. Mudholkar, J. speaking for a Constitution Bench of this Court rejected this contention and held : (AIR p. 1332, para

6) "6. ... Whatever that may be, we cannot ignore the fact that the present shebaits and their predecessors have been functioning as shebaits for a very long period and their rights in that regard have not been called into question ever before. In these circumstances we cannot accept the contention of the learned counsel that they should be completely excluded from the management of the temple."

In crafting the relief, the Court was mindful of the long exercise of rights by those acting as shebaits. The initial scheme framed by the High Court comprised eighteen members on the managerial

board of which twelve were shebaits. The Court modified this to a board of eleven members, with five shebaits and a majority of Hindus who were not shebaits.

483. The protection of the trust property is of paramount importance. It is for this reason that the right to institute proceedings is conceded to persons acting as managers though lacking a legal title of a manager. A person claiming to be a de facto shebait can never set up a claim adverse to that of the idol and claim a proprietary interest in the debutter property. Where a person claims to be the de facto shebait, the right is premised on the absence of a person with a better title i.e. a de jure manager. It must be shown that the de facto manager is in exclusive possession of the trust property and exercises complete control over the right of management of the properties without any hindrance from any quarters. The person is, for all practical purposes, recognised as the person in charge of the trust properties. Recognition in public records as the manager would furnish evidence of being recognised as a manager.

484. Significantly, a single or stray act of management does not vest a person with the rights of a de facto shebait. The person must demonstrate long, uninterrupted and exclusive possession and management of the property. What period constitutes a sufficient amount is determined on a case-to-case basis. The performance of religious worship as a pujari is not the same as the exercise of the rights of management. A manager may appoint one or several pujaris to conduct the necessary ceremonies. In the ultimate analysis, the right of a person other than a de jure trustee to maintain a suit for possession of trust properties cannot be decided in the abstract and depends upon the facts of each case. The acts which form the basis of the rights claimed as a shebait must be the same as exercised by a de jure shebait. A de facto shebait is vested with the right to institute suits on behalf of the deity and bind its estate provided this right is exercised in a bona fide manner. For this reason, the court must carefully assess whether the acts of management are exclusive, uninterrupted and continuous over a sufficient period of time.

485. A final question that is relevant for our present enquiry is whether a de facto shebait can claim a right to continue indefinitely in office. As seen earlier, a de jure shebait and a de facto shebait exercise similar rights in the limited sense of acting for the benefit of the idol. Even absent an averment of mismanagement by the shebait, a person may institute proceedings under Section 92 of the Code of Civil Procedure, 1908 against a de facto shebait for the settling of a scheme. In this view, legal certainty and the sustained interest of the deity would be served by circumscribing the claim of a de facto shebait to

continue, as a matter of right, in perpetuity.

486. In Gopal Krishnaji Ketkar v. Mohd. Jaffar Mohamed Hussein [Gopal Krishnaji Ketkar v. Mohd. Jaffar Mohamed Hussein, AIR 1954 SC 5] the plaintiffs instituted a suit praying for a declaration that the second plaintiff is the guardian and "vahivatdar" of the Darga. The defendant claimed to be its rightful manager and Mutawalli. The plaintiffs' family were managers since 1817. Since 1902-03, the defendant was given the right to manage prayers during a certain period every year in the temple and collect the offerings for his upkeep. Upon alleged interference with the plaintiffs' right to manage and collect offerings, the suit was instituted. The Court found that the plaintiffs and their family had been managing from at least the year 1886. The Court held that as the right claimed by the defendant was not that of a hereditary trustee, the right dies with him and the only question was whether or not the plaintiffs were entitled to management and the offerings. Vivian Bose, J. speaking for a three-Judge Bench of this Court held : (AIR p. 8, paras 30-31) "30. Now a "de facto manager or a trustee de son tort" has certain rights. He can sue on behalf of the trust and for its benefit to recover properties and moneys in the ordinary course of management. It is however one thing to say that because a person is a "de facto" manager he is entitled to recover a particular property or a particular sum of money which would otherwise be lost to the trust, for and on its behalf and for its benefit, in the ordinary course of management; it is quite another to say that he has the right to continue in "de facto" management indefinitely without any vestige of title, which is what a declaration of this kind would import. We hesitate to make any such sweeping declaration. ...

31. ... That being so, we think it undesirable that things should be allowed to drift in this uncertain way, no one knowing where the legal rights of management lie or of what they consist; no one knowing how the rights are to devolve or how the large charitable offerings which are collected are to be distributed and used.(emphasis supplied)

487. The Court in Gopal Krishnaji Ketkar case [Gopal Krishnaji Ketkar v. Mohd. Jaffar Mohamed Hussein, AIR 1954 SC 5] drew a distinction between a claim in law to be vested with the right to bring an action on behalf of the deities and a claim to continue indefinitely as a de facto shebait which, for all purposes, would be equating a de facto shebait with a de jure shebait and conferring upon the former a legal title where it has always been absent. Legal certainty and the ultimate protection of the trust properties underlie Section 92 of the Code of Civil Procedure, 1908. Under this provision, the court is, upon an application by the Advocate

General or two or more persons having an interest in the trust and having obtained the leave of the court, vested with wide powers to replace trustees and settle a scheme with respect to the trust property. Keeping this in mind, the Court framed directions in accordance with the above observations : (Gopal Krishnaji Ketkar case [Gopal Krishnaji Ketkar v. Mohd. Jaffar Mohamed Hussein, AIR 1954 SC 5] , AIR p. 8, para 32) "32. We are told by the learned Solicitor General that a suit under Section 92, Civil Procedure Code is under contemplation. Without in any way prejudicing matters which will arise there, we make the following order. We direct--

1. That the present arrangement regarding the collection and disposal of the offerings continue for a period of six months from the date of this judgment.

2. That in the interval the offerings so collected, as well as those already in deposit, he not handed over to the second plaintiff except to the extent necessary for meeting the expenses. The legal representatives of the defendant have no right at all to those offerings.

3. If such a suit is instituted within the said period, then the said offerings and collections be disposed of in accordance with such scheme as may then be framed, and in accordance with such directions as may be given in that suit.

4. If no such suit is instituted within the said six months, then the second plaintiff, as the person in "de facto" management of the Darga from 13-11-1938, the date of his adoption, till the date of suit, 7-10-1946, will be entitled to receive the offerings now lying in deposit in the Treasury for and on behalf of the Darga and for its benefit and in future to collect all the offerings all the year round for and on behalf of the Darga and for its benefit until he is displaced by a person with better title or authority derived from the courts."

488. In Vikrama Das Mahant v. Daulat Ram Asthana [Vikrama Das Mahant v. Daulat Ram Asthana, AIR 1956 SC 382] , the compromise decree on the basis of which the Mahant claimed a right and entered into possession was not given effect. The decree of the trial court giving effect to the compromise decree was set aside. Though the Court sustained the rights of the Mahant to continue as a de facto manager, the Court held : (AIR p. 391, para

19) "19. But this is only a stopgap expedient. We cannot shut our eyes to the fact that we have before us a public trust of which, on the facts now before us, an alleged intermeddler claiming under a decree said to be void is in possession and management. It may be, when proper proceedings are instituted to determine the matter, that it will be found that he is not without legal authority

or it may be proper to invest him with that authority if he has not already got it, or again it may be better to have another person or body.

But those are not matters we need decide in these proceedings. All we need do is to bring the present state of facts to the notice of the Advocate General of Uttar Pradesh and leave him to consider whether he should not, of his own motion, institute proceedings under Section 92, Civil Procedure Code, or take other appropriate steps. Let a copy of this judgment be sent to him."

489. The decisions of this Court in Gopal Krishnaji Ketkar [Gopal Krishnaji Ketkar v. Mohd. Jaffar Mohamed Hussein, AIR 1954 SC 5] and Vikrama Das [Vikrama Das Mahant v. Daulat Ram Asthana, AIR 1956 SC 382] affirm that the interest of protecting the trust properties was the basis of conferring upon a de facto shebait the limited right of instituting bona fide suits on behalf of the idol. Where there was no de jure shebait, the law recognised the person managing the property as a shebait to the extent of protecting the idol and its properties. However, this limited recognition did not confer upon de facto shebaits the right to continue in perpetuity.

490. Having adverted to the legal standard that must be satisfied for a court to recognise a de facto shebait, the stage has been reached to adjudicate upon the contention urged by Nirmohi Akhara that it is the shebait of the idols at the disputed site. Nirmohi Akhara is a Panchayati Math of the Ramanandi Sect of Bairagis which is a religious denomination. The customs of Nirmohi Akhara purport to have been reduced to writing by a registered deed dated 19-3-1949. It was contended that the disputed structure is a temple building which has been in the possession of Nirmohi Akhara and only the Hindus have been allowed to enter the temple and make offerings. Nirmohi Akhara claims that it has been receiving the offerings through its pujaris. The averments contained in the plaint as well as the reliefs which have been claimed by Nirmohi Akhara indicate that the claim is to a right to manage and have charge of the temple. Nirmohi Akhara contended that it has been in possession of the property and has exercised management rights which amounts to a conferral on them of the status of a de facto shebait.

491. At the outset, it was contended by Nirmohi Akhara that absent an averment in the plaint in Suit No. 5 disputing its status as the shebait of the idols of Lord Ram, their status as shebaits cannot be disputed. It was further contended that no rival claim to the rights of the shebait have been set up in any suit. Consequently, it was urged that it must be held that the Nirmohis are the shebaits of the idols of Lord Ram. This contention cannot be accepted. If Nirmohi Akhara were to be recognised as a de facto

shebait, this would confer on it a substantive right in law to bring actions on behalf of the idol to the exclusion of all other persons. The actions of a shebait bind the idol and its properties. Absent an express deed of dedication conferring shebaiti rights on Nirmohi Akhara, there is a positive burden on it to demonstrate that it was in fact a shebait of the idols. For this reason, Nirmohi Akhara must establish, on the basis of oral and documentary evidence, that they have exercised all the rights required to be recognised as de facto shebaits.

492. Nirmohi Akhara denies the incident of 22-12-1949/23-12- 1949 during which the idols were surreptitiously introduced into the inner sanctum of the disputed structure. The claim that Nirmohi Akhara were in possession of the inner courtyard on the basis of the evidence on record has already been rejected. Nirmohi Akhara has failed to prove that at the material time, the disputed structure was a temple which was in its possession and that no incident had taken place on 22-12-1949/23-12-1949. Absent exclusive possession of the inner courtyard, the claim that Nirmohi Akhara was managing the inner courtyard as shebaits does not arise. It was in this context that Sudhir Aggrawal, J. held : (Gopal Singh Visharad case [Gopal Singh Visharad v. Zahoor Ahmad, 2010 SCC OnLine All 1919 : 2010 SCC OnLine All 1920 : 2010 SCC OnLine All 1921 : 2010 SCC OnLine All 1922 : 2010 SCC OnLine All 1923 : 2010 SCC OnLine All 1925 : 2010 SCC OnLine All 1926 : 2010 SCC OnLine All 1927 : 2010 SCC OnLine All 1928 : 2010 SCC OnLine All 1929 : 2010 SCC OnLine All 1930 : 2010 SCC OnLine All 1931 : 2010 SCC OnLine All 1932 : 2010 SCC OnLine All 1933 : 2010 SCC OnLine All 1934 : 2010 SCC OnLine All 1935] , SCC OnLine All para 2994) "2994. Now coming to Issue 3 (Suit No. 3), it has to be kept in mind that this suit is also confined to the premises within the inner courtyard and not the entire premises i.e. the outer and the inner courtyard including the building. This is what is stated by the counsel for Nirmohi Akhara in his statement made on 17-5-1963 under Order 10 Rule 1 CPC."*** "4537. In these particular facts and circumstances and the stand of Nirmohi Akhara, we have no option but to hold that so far as the idols of Bhagwan Sri Ram installed in the disputed structure i.e. within the inner courtyard is concerned, the defendant Nirmohi Akhara cannot be said to be a Shebait thereof. (Gopal Singh Visharad case [Gopal Singh Visharad v. Zahoor Ahmad, 2010 SCC OnLine All 1919 : 2010 SCC OnLine All 1920 : 2010 SCC OnLine All 1921 : 2010 SCC OnLine All 1922 : 2010 SCC OnLine All 1923 : 2010 SCC OnLine All 1925 : 2010 SCC OnLine All 1926 : 2010 SCC OnLine All 1927 : 2010 SCC OnLine All 1928 : 2010 SCC OnLine All 1929 : 2010 SCC OnLine All 1930 : 2010 SCC OnLine All 1931 : 2010 SCC OnLine All 1932 : 2010 SCC OnLine All 1933 : 2010 SCC OnLine All

1934 : 2010 SCC OnLine All 1935+ , SCC OnLine All para 4537.)"

493. In the written submissions of Nirmohi Akhara it has been contended that the inner and outer courtyard form a composite whole and Suit No. 3 was only filed with respect to the inner courtyard as only the inner courtyard was the subject of the attachment proceedings. Nirmohi Akhara submits that the attachment order made an arbitrary distinction between the inner and outer courtyard and a finding with respect to the inner courtyard does not undermine their claim to shebaitship of the entire premises. Even if this argument is accepted, apart from the determination that Nirmohi Akhara was not in possession of the inner courtyard, the independent question that arises for our determination is whether Nirmohi Akhara consistently exercised management rights over the idols in the outer courtyard to claim a right in law as a de facto shebait of the idols of Lord Ram. To support their contention, Nirmohi Akhara has relied on the oral evidence of witnesses in Suits Nos. 3 and 5 and also submitted certain additional documents to establish its status as shebait.

494. Mr S.K. Jain, learned Senior Counsel appearing on behalf of the plaintiff in Suit No. 3 placed reliance on the witness statements of Mahant Bhaskar Das (DW 3/1) and Raja Ram Pandey (DW 3/2) in Suit No. 3 to contend that it was admitted that Nirmohi Akhara had been exercising the rights of a shebait since time immemorial. The oral evidence submitted by Nirmohi Akhara has already been analysed in the course of this judgment. The statements by their witnesses cannot be relied on to establish a cogent account of the activities undertaken by Nirmohi Akhara at the disputed site. Numerous witnesses admitted to not having read their own affidavits in lieu of their examination-in-chief. The witnesses merely signed the relevant documents without understanding the testimony contained therein. Further, under cross-examination, a number of the witnesses expressly contradicted their own statements. Several witnesses admitted to not having even entered the disputed structure or rescinded earlier statements about their visits to the disputed structure. In light of these observations, the oral evidence relied upon by Nirmohi Akhara to establish their position as shebaits cannot be accepted. However, for the sake of completeness, the relevant extracts are examined below.

495.Mahant Bhaskar Das (DW 3/1) was the Panch of Nirmohi Akhara since 1950 and was at the material time the Sarpanch. In his affidavit, it was stated:

"81. Lord Ram Lalla is seated in the inner part even before 1934 and it had been in the possession of Nirmohi Akhara continuously since 1934. The Muslims are not ignorant about it. The Lord is seated there. His worship, royal offering all is done on

behalf of Nirmohi Akhara. On the day of the attachment (viz. 29- 12-1949) of the inner part also it was in possession of the Akhara. The ownership got ordained in Nirmohi Akhara due to its being a religious trust."(emphasis supplied) 495.1. It has been held, in the course of this judgment, on an analysis of the evidence on record, that the idols were shifted under the central dome on in the intervening night of 22-12- 1949/23-12-1949. The affidavit of this witness contains references to the existence of Nirmohi Akhara in Ayodhya for 200 years and in the disputed site. However, with regard to the exercise of shebaiti rights, the witness states:

"35. An annual contract was given to provide flowers, fruits, batasha, etc., to the visitors of the eastern door temple of Sri Ram Janmabhoomi. This was being done since ancient time by the previous Mahants of Nirmohi Akhara and an agreement was executed for it. The Brahmins were given the contract to provide holy and fresh water from the Sita Koop to the visitors/devotees. The tax was paid to the Mahant of the Akhara. I have submitted all the available agreements with me and many documents were plundered. The report was lodged for the same."

495.2. In the cross-examination of this witness by Mr Zafaryab Jilani, learned Senior Counsel appearing for the Sunni Central Waqf Board, on 11-9-2003, the witness replied:

"After the attachment the offerings which were made on the idols places in the disputed building were not a part of any contract by Nirmohi Akhara. There is a mention of agreement about the contract in Para 36 of my affidavit but I do not remember how many such agreements were submitted in this court on behalf of Nirmohi Akhara. I do not remember this time the names of those people who were made to write the aforesaid so-called agreement by Nirmohi Akhara. I do not remember any name this time. I have written in para 35 of my affidavit about submitting such agreement in the court and Bindeshwari Dubey was one of them who wrote the agreement and it is submitted in the them who wrote the agreement and it is submitted in the court. Which is Document No. 39 C-1/39, I cannot tell it by the number but the paper is titled."(emphasis supplied) 495.3. Though the witness makes reference to the presence of Nirmohi Akhara in the disputed site, the witness is unable to recall any of the documents mentioned to have been submitted by him as evidence that Nirmohi Akhara were exercising management rights as the shebait. It is also important to note the answer of this witness to the question put by Mr Jilani in the cross-examination dated 17-9-2003:

"Question : Shall I take it that most of the part of this affidavit was drafted by your advocate on the basis of his knowledge?

Answer : It is wrong to say so. Some parts of this affidavit is based on the knowledge of my advocate but I do not remember which is that part and I will not be able to tell it."(emphasis supplied) 495.4. The statements of DW 3/1 demonstrate that the witness was completely unaware of the documents alleged to have been submitted by him as evidence. The statements do not inspire confidence that Nirmohi Akhara was exercising management rights as the shebait.

496. Mr S.K. Jain then relied on the examination-in-chief by way of affidavit of Raja Ram Pandey (DW 3/2) wherein it was stated:

"14. ... Before attachment of Garb Grah and till the taking over of its charge by the Receiver, I have seen the Priest and the Assistant Priest of Nirmohi Akhara reciting aarty, offering deferential situations (sic salutations) and giving 'prasad' and 'charanamrit' and similarly I have seen up to February, 1982 the Priest, the Assistant Priest, the Panch of Nirmohi Akhara reciting aarti and performing 'pooja' (worship) in 'Chabootra Mandir' and 'Chhati Poojan sthal'."

As noted above, a pujari who conducts worship at a temple is not elevated to the status of a shebait. A pujari gains no independent right despite having conducted the ceremonies for a long period of time. Thus, the mere presence of pujaris does not vest in them any right to be shebaits. The mere performance of the work of a pujari does not in and of itself render a person a shebait. The statement of DW 3/2 establishes at the highest that some priests of Nirmohi Akhara were acting as pujaris, but does not evidence the exercise of management rights for the recognition of their status as a shebait.

497. Mr S.K. Jain also placed reliance on the testimony of Sri Acharya Mahant Bansidhar Das alias Uriya Baba (DW 3/18) in Suit No. 3 to contend that Nirmohi Akhara had been exercising management rights over the disputed site, including the performance of pujas. DW 3/18 was an intermittent resident of Ramkot, Ayodhya since 1930 and claimed to have lived at various temples and religious Shrines in close proximity to the disputed site.

497.1. During his examination-in-chief, DW 3/18 states: "In 1930, I went for darshan of Shri Ram Janam Bhoomi Mandir about which the suit is sub judice. At that time too Bhagwan Ram Lalla was sitting there, I took darshan and also took prasad, aarti and charnamrit (sacred water). I had been receiving prasad, Aarti and Charnamrit from the priest and sadhus of Nirmohi Akhara living in the outer part i.e. in the Sant Niwas and storerooms situated in the north of main eastern gate, called

Hanumatha dwar, in the north of Ram chabutra."(emphasis supplied) 497.2. The witness stated that the priests in charge of the puja were priests of Nirmohi Akhara. However, under cross-examination by the learned Senior Counsel Mr Jilani, the witness stated: "... First of all, I have darshan of Ram chabutra, then Ramlalla, Sita Kitchen and to Shankar Chabutra and from there I used to come back. Sometime I used to offer prasada while having darshan to pujari (priest) for offering in the inner side. I do not remember the name of Priest. Priest kept on changing. He himself said that Mahant of Hanumangarhi, Faizabad remained the Priest for long time. I do not remember his name at present. On being reminded by learned cross-examiner advocate, he said priest name was Bhaskar Das.*** Bhaskar Dasji remained the priest of the disputed site for years but he was not a Mahant of Nirmohi Akhara ever. He was a priest of Hanumangarhi, Faizabad. At present he is neither a Mahant of Nirmohi Akhara nor a priest. He is a member of the committee. I do not know how many members are there in a committee."(emphasis supplied) 497.3. Despite the initial statement that it was Nirmohi Akhara that performed the puja at the disputed site, the witness contradicts this statement under cross-examination. The witness stated that it was one Bhaskar Das who performed puja. Bhaskar Das, according to the witness himself, was not associated with Nirmohi Akhara. The contradictory stance of the witness cannot be relied upon to establish that Nirmohi Akhara were exercising management rights or even conducting the performance of the puja at the disputed site prior to 1949.

497.4. The testimony of several of the witnesses relied upon by the plaintiffs in Suit No. 3 is riddled with inconsistencies and contradictions. The testimony of DW 3/18 is no different. During his testimony he stated:

"... The size of chabutra was about three-four feet, three feet in width and at one and half feet high from the ground level. This chabutra was just below the mid dome and is made of cement and bricks. This chabutra was at distance of two feet from western wall and was in the east ...*** It is not correct to say that 5-6 thousand Hindus have kept the idols there on the night of 22-12-1949/23-12-1949, by making forceful entry into. It is also not correct to say these people have desecrated the Masjid. It is also not correct to say that idols were kept there in the night because idols have already been there. The point reported in the FIR that idols were kept on the night of 22- 12-1949, was incorrect...."(emphasis supplied)

498. During the course of this judgment a wealth of evidence has been produced by the parties. There is no evidence to suggest that the Ram chabutra was ever under the central dome of the mosque or that the idols existed inside the mosque prior to December 1949. The witness DW 3/18 further goes on to state: "Telling a lie have been described as a sin in the dharmshastras. But if by telling a lie, proves a saviour then there is no harm in telling a lie. Similarly there is no harm in telling a lie by a person who is dying of hunger. If there is a religious place and if somebody is acquiring it through wrong means or forcibly occupying them, there is no harm in telling a lie. If the religious place is taken away forcibly by others by telling a lie then it is correct."(emphasis supplied) In light of these statements by the witness no reliance can be placed on the testimony of DW 3/18.

499. Mr S.K. Jain has relied on the statement of Mr Jilani recorded on 22-4-2009 under Order 10 Rule 2 of the Code of Civil Procedure where it was stated:

... the existence of Nirmohi Akhara from the second-half of nineteenth century onwards is also not disputed. It is however denied and disputed that Nirmohi Akhara was in existence and specially in Ayodhya in 16th century AD or in 1528 AD and it also denied that any idols were there in the building of the Babri Masjid up to 22-12-1949."

There is a distinction between the mere presence of Nirmohi Akhara at Ayodhya or around the disputed site and the actual possession and management of the disputed site. A mere presence within an area or possession of an area is not sufficient to be vested with the powers of a shebait. Nothing in Mr Jilani's statement demonstrates or concedes management or even possession by Nirmohi Akhara.

500. Reliance was then placed on the oral testimony of the plaintiff witnesses in Suit No. 5. Mr S.K. Jain urged that these witnesses have admitted that it was the priests of Nirmohi Akhara who were managing the idols at the disputed structure, before and after attachment. It was submitted that as the witnesses in Suit No. 5 had admitted the status of Nirmohi Akhara as shebaits, no more evidence was required to be placed before this Court to establish that the Nirmohis are the shebaits. The relevant portions of these witness statements are as follows:

500.1.Sri Mahant Paramhans Ram Charan Das (OPW 1) "... Before attachment, Hindus had been going to Garba Griha without any restrictions for having darshan. Idols of Lord Saligram, Hanumanji and Ramlalla were installed there. People belonging to Nirmohi Akhara never obstructed any Hindu from going to the

Garba Griha. Members of Nirmohi Akhara used to manage Garbha Griha before attachment...."

500.2.Deoki Nandan Agarwal (OPW 2) "... Bairagis of Nirmohi Akhara who used to worship at the Ram chabutra did not allow Muslims to enter inside. Therefore namaz could never be performed in this place in spite of efforts made constantly ... Worship of idols which existed earlier on Ram chabutra and of the idol installed after 1949 was got done only by the two people of Nirmohi Akhara till a quarrel arose with Dharamdasji." 500.3.Shri Ram Nath Panda alias Bansari Panda (OPW 5) "In the barred wall, there were two doors which used to remain locked and those doors were opened and closed by the pujaris of Nirmohi Akhara. The same very pujari used to offer prayers and perform arti at Ram Chandra and Sita Rasoi, etc. We used to arrange darshan of the Garbh Griha for the pilgrims from the railing itself. A donation box was also kept there. On the main gates were the shops of Batasha and flowers/garlands. One of those belong to Sehdev mali.

... The key of the lock used to be in the possession of people of Nirmohi Akhara and whose pujari would open the lock, close the lock, and perform Arti puja and sounded bells and bugles ... ... from 1949 to 1970, I used to go to Ram Janm Bhumi Temple regularly. After the attachment of 1949, the Receiver of Garbh Girha--Babu Priya Dutt Ram became the chairman of the Municipality Faizabad and at places like Ram chabutra Temple, Chhathi Puja Sthal, Bhandar Sthal and Shiv Darbar Puja continued to be performed in the same way as before and was performed by the same people who used to perform it before...." 500.4. The testimony of the plaintiff witnesses in Suit No. 5 have been selectively extracted and do not bear out the conclusion that Nirmohi Akhara was a shebait. The statements of OPW 1 that Nirmohi Akhara managed the inner courtyard are not supported by the evidence adduced, on which findings are recorded elsewhere in this judgment. Similarly, the isolated statement by OPW 5 that the Nirmohis possessed the key to the outer courtyard is not corroborated by any other statements. If the Nirmohis possessed the key to the outer courtyard, every visitor to the disputed site, whether Hindu or Muslim, would have required the permission of the Nirmohis to enter. If true, such a state of affairs would have surely been recorded by other witnesses in their testimony. The statement of OPW 2 once again merely indicates the presence of the Nirmohis in and around the disputed site. It indicates a disagreement between the Nirmohis and Dharam Das about the movement of the idols to the inner courtyard in 1949.

This statement undermines the claim of the Nirmohis as exclusive managers of the deity as it evidences disagreement about the placement of the idols. The continued disavowal of the events of 22/23 December by Nirmohi Akhara lends credence to this observation.

501. The oral testimony relied on by Nirmohi Akhara establishes, at best, that they were present in and around the disputed site. However, the presence of the Nirmohis around the disputed site does not amount to the exercise of management rights which entitle them in law to the status of a de facto shebait. The oral evidence in Suit No. 3 upon which reliance was placed is riddled with inconsistencies and does not bear out the conclusion that Nirmohi Akhara exercised management rights on behalf of the idols of Lord Ram. The oral evidence of the three witnesses in Suit No. 5 has been selectively extracted and the statements therein are not corroborated by the testimony of any other witness. Independent of the oral testimonies, Nirmohi Akhara has placed reliance upon documentary evidence to establish its status as shebait of the idols at the disputed site. These documents are as follows:

501.1. The complaint dated 25-9-1866 by Meer Rajab Ali Khateeb against Tulsidas regarding the "kothri" constructed by certain Bairagis inside the compound of the mosque. 501.2.Ext. 30 -- Suit No. 1 : The appeal dated 13-12-1877 by Mohd. Asghar against Mahant Khem Das with respect to the order permitting the construction of a new gate on the northern side. 501.3.Ext. 7 -- Suit No. 5 : Gazetteer of the Province of Oudh (1877-78).

501.4.Ext. 24 -- Suit No. 1 : The plaint dated 8-11-1882 in the suit instituted by Syed Mohd. Asghar against Mahant Raghubar Das seeking rent for the use of the chabutra.

501.5.Ext. 28 -- Suit No. 1 : The complaint dated 27-6-1884 by Mahant Raghubar Das seeking spot inspection in view of the work being carried out by Syed Mohd. Asghar for painting the mosque. 501.6.Ext. A-22 -- Suit No. 1 : Suit dated 19-1-1885 filed by Mahant Raghubar Das seeking permission for the construction of a temple on the site of the Ram chabutra.

501.7.Ext. 8 -- Suit No. 3 : Copy of agreement dated 11-6-1900 permitting Jhingoo (son of Gaya) to provide drinking water to the pilgrims visiting Ram Janmabhumi site at Ayodhya. 501.8. H.R. Nevill's "The Gazetteer of the United Provinces of Agra and Oudh" (1905) stating that Nirmohi Akhara sect formerly held the Janmasthan Temple in Ramkot, the remains of which still belong to them.

501.9.Ext. 9 -- Suit No. 3 : Copy of agreement dated 13-10-

1942 regarding the theka shop of Janmabhumi Ram Kot Ayodhya executed by Narottam Das in favour of Gopal (son of Babu). 501.10.Ext. 10 -- Suit No. 3 : Agreement dated 29-10-1945 executed in respect of a shop by Mahant Raghunath Das. 501.11.Ext. 49 -- Suit No. 4 : Mutation entry in favour of the Mahant Raghunath Das.

501.12. Statement by DW 10 by Umesh Chandra Pandey. 501.13. It was further contended that while the Supurdaginama, by which the Receiver took possession does not record from whom possession was taken, the document indicates the presence of Nirmohi Akhara in the outer courtyard. 501.14. Lastly, it was urged that after the interim order was passed in the Section 145 proceedings, the seva-puja continued "as before" and was conducted by the priests of Nirmohi Akhara.

502. Nirmohi Akhara urged that the presence of numerous Bairagis of Nirmohi Akhara at the disputed site evidences the exercise of management rights. To support this, Nirmohi Akhara relied on the following:

502.1. Edward Thornton (1854, Gazetteer of the Territories under the Government of East India Company) refers to the presence of about 500 Bairagis.

502.2. Letter dated 29-11-1949 : Kripal Singh, the then Superintendent of Police at Faizabad addressed a letter to K.K. Nayar, the Deputy Commissioner mentioning that "several thousand Hindus, Bairagis and Sadhus" are to participate in the performance of the proposed kirtan.

502.3. Letter dated 16-12-1949 : K.K. Nayar (the Deputy Commissioner and District Magistrate, Faizabad) addressed a communication to Govind Narayan stating that "sometime this year probably in October or November some grave mounds were partially destroyed apparently by Bairagis who very keenly resent Muslim associations with this Shrine".

502.4. Reference is also made to the presence of the Bairagis in the report of Waqf Inspector dated 23-12-1949 marked as Ext. A-

502.5. The evidence relied on by Nirmohi Akhara in this regard, evidences at best the presence of the Bairagis of Nirmohi Akhara at the disputed site. No other credible documents or evidence was produced to show that these Bairagis in fact exercised the rights of management of a shebait.

503. The complaint of 25-9-1866 filed by Meer Rajab Ali Khateeb states that it is filed against one "Tulsidas". Nirmohi Akhara sought to rely on oral evidence to prove that Tulsidas was in fact a Mahant of the Nirmohis and that it was Nirmohi Akhara who constructed the "Kothri". It has already been held that the

oral evidence relied on by the Nirmohis to substantiate their claim is not reliable. The document itself does not prove that Tulsidas was a Mahant of the Nirmohis nor that the construction was carried out by the Nirmohis. It is not corroborated by any other documentary evidence ordinarily associated with such a construction at the time and does not evidence the exercise of rights as a shebait.

504. Exts. 8, 9 and 10 in Suit No. 3 establish that the Nirmohis were providing various services to the pilgrims visiting the disputed structure. However, all three exhibits pertain to the grant of permission to provide these services outside the disputed structure. At its highest, these exhibits show that the Nirmohis were present in and around the disputed structure and assisted the pilgrims. It does not however evidence any management over the idols or the disputed site itself.

505. Significant reliance was placed on the role of Mahant Raghubar Das as a Mahant of Nirmohi Akhara. Reliance in this regard was placed on Ext. 24 (suit dated 8-11-1882 filed for the collection of rent), Ext. 28 (complaint dated 27-6-1884 seeking spot inspection) and Ext. A-22 (1885 suit filed for the construction of a temple on the Ram chabutra) in Suit No. 1 adverted to above. It was contended that Mahant Raghubar Das filed the above suits as a Mahant of Nirmohi Akhara. On this basis, it was contended that the management and charge of the deity was taken care of by Nirmohi Akhara. A closer analysis reveals the numerous contradictions in the stand of Nirmohi Akhara with respect to Mahant Raghubar Das. In the Suit of 1885, Mahant Raghubar Das claimed to be the "Mahant, Janmasthan, Ayodhya". In the written submissions filed by Nirmohi Akhara it was stated that Mahant Raghubar Das filed the suit of 1885 in a personal capacity: "... the said suit *1885+ was filed by Mahant Raghbar Das in his personal capacity without even mentioning the name of Nirmohi Akhara and in any case the subject property in the said suit -- (chabutra in outer courtyard) was different from the suit property (inner courtyard) which is the subject-matter of OOS No.

3."(emphasis supplied) 505.1. However, in the same written submissions, while speaking of the report of the Waqf Inspector dated 23-12-1949, it was said:

"He mentions the name of Mahant Raghubar Das along with others who invited the Muslims for talks. Mahant Raghubar Das is the Mahant of Nirmohi Akhara."(emphasis supplied) 505.2. In the replication, Nirmohi Akhara disavowed any awareness about the suit by Mahant Raghubar Das:

"... The plaintiffs are not aware of the said suit, if any, filed by any person known as Mahant Raghubar Das as Mahant of Janma

Asthan."

505.3. In the written statement filed on the behalf of Nirmohi Akhara in Suit No. 4, it was stated:

"... The answering defendants are not aware of any suit having been filed by any person known as Mahant Raghubar Dass styling himself to be the Mahant of Janam Asthan:..."

505.4. In the Suit of 1885, Mahant Raghubar Das claimed to be the Mahant, Janmasthan, Ayodhya. In the oral hearings before this Court as well as the hearings before the High Court, Nirmohi Akhara claimed that Mahant Raghubar Das was a Mahant of Nirmohi Akhara. Sudhir Aggrawal, J. makes the following observation : (Gopal Singh Visharad case [Gopal Singh Visharad v. Zahoor Ahmad, 2010 SCC OnLine All 1919 : 2010 SCC OnLine All 1920 : 2010 SCC OnLine All 1921 : 2010 SCC OnLine All 1922 : 2010 SCC OnLine All 1923 : 2010 SCC OnLine All 1925 : 2010 SCC OnLine All 1926 : 2010 SCC OnLine All 1927 : 2010 SCC OnLine All 1928 : 2010 SCC OnLine All 1929 : 2010 SCC OnLine All 1930 : 2010 SCC OnLine All 1931 : 2010 SCC OnLine All 1932 : 2010 SCC OnLine All 1933 : 2010 SCC OnLine All 1934 : 2010 SCC OnLine All 1935] , SCC OnLine All para 964) "964. What we have already noticed, it has not been disputed by Nirmohi Akhara that in 1885 Raghubar Das was Mahant of Nirmohi Akhara."

505.5. It is clear from the above extracts that Nirmohi Akhara sought to espouse Mahant Raghubar Das as a Mahant of Nirmohi Akhara to establish that they have acted as shebaits since the 1800s. Yet they distance themselves from the Mahant when dealing with the question of res judicata. Nirmohi Akhara even stated that it was unaware of the Suit of 1885. The inconsistent stance of Nirmohi Akhara with respect to Mahant Raghubar Das leads to an adverse inference against them.

506. The documentary evidence which has been produced by Nirmohi Akhara does not show that it was managing the property in question. Apart from the documentary evidence analysed above which does not further the case of Nirmohi Akhara, no evidence has been produced to show the exercise of management rights by Nirmohi Akhara. Stray acts do not constitute sufficient evidence to establish continuous, exclusive and uninterrupted exercise by Nirmohi Akhara of the rights and duties of a de facto shebait. No document that evidences repairs, construction, appointment of pujaris, or other activities has been produced before this Court. Significantly, apart from a stray reference in the account of the travellers, no document of Nirmohi Akhara has been put on record to show the exercise of management rights. The customs of Nirmohi Akhara were reduced to writing by a registered deed only on 19-3-1949.

507. When a question was put to Mr S.K. Jain to produce the original documents that establish the claim of Nirmohi Akhara as shebaits, it was contended that an alleged dacoity had led to loss of the documents necessary to substantiate the claim. To substantiate this claim, it was contended that an FIR was filed on 18-2-1982 against Dharam Das. However, in the written submission submitted by the Nirmohis, it is stated that though Dharam Das remained in jail for two months, the case was subsequently quashed on the basis of a compromise. No documents have been adduced to substantiate this claim other than a reliance on the statement of a single witness -- Raja Ramachandracharya (DW 3/20). This argument is an attempt to gloss over the glaring absence of any substantial proof of the exercise of management rights by the Nirmohis to confer on them the status of a shebait. The position of a shebait in law is of crucial significance. The shebait is the human ministrant and custodian of the idol and acts as its authorised representative. The shebait is vested with the right to bring an action on behalf of the deity and bind it. In this view, the claim of Nirmohi Akhara that it is a de facto shebait on the basis of the oral and documentary evidence on record has been analysed and it has been found that the claim has not ripened into shebait rights.

508. A claim of rights as a de facto shebait must be substantiated with proof that person is in exclusive possession of the trust property and exercises complete control over the right of management of the properties without any let or hindrance from any quarters whatsoever. For all practical purposes, this person is recognised as the person in charge of the trust properties. Though it cannot and has not been denied in the present proceedings that Nirmohi Akhara existed at the disputed site, the claim of Nirmohi Akhara, taken at the highest is that of an intermittent exercise of certain management rights. Their rights were peripheral, usually involving the assistance of pilgrims, and were constantly contested. As held above, a stray or intermittent exercise of management rights does not confer upon a claimant the position in law of a de facto shebait. It cannot be said that the acts of Nirmohi Akhara satisfy the legal standard of management and charge that is exclusive, uninterrupted and continuous over a sufficient period of time. Despite their undisputed presence at the disputed site, for the reasons outlined above, Nirmohi Akhara is not a shebait.

In view of the above, considering that in the Temple, idols

of Ramji, Jankiji, Laxmanji, Shivji and Hanumanji were established, it

cannot be said that the public at large was prevented to pay worship

there and no evidence to that effect has been brought on record that

public at large was not worshiping there and the Ext.10 is of earlier

period whereas the Ext.7 is of later period. In the Ext.10 the purpose of

acquiring the land in question is Thakurbari was also recited. Looking

into the contents of Ext.7 in its entirety it transpires that it was intend to

made the trust for public worship. The Court comes to the conclusion

that the learned appellate court has rightly interpreted the said two

documents and has reversed the finding of the learned trial court. The

judgment relied by Mr. Amar Kumar Sinha, the learned counsel for the

appellant in the case of "Rajendra Tiwary v. Basudeo Prasad and

Another" (supra) is not helping the case of the appellant.

In view of the fact that these two documents have been

rightly interpreted by the learned appellate court and right, title and

interest has not been decided, however, the Bihar Hindu Religious Trust

Act has been interpreted and considering thereon the learned appellate

court has reversed the finding of the learned trial court. In that view of

the matter, the law points are answered accordingly.

There is no illegality in the order of the learned appellate

court. Hence, Second Appeal No.61 of 1996(R) is dismissed.

Pending petition, if any, also stands disposed of accordingly.

Let the L.C.R be sent back to the learned concerned court

forthwith.

( Sanjay Kumar Dwivedi, J.)

A.F.R SI/;