R.L. Khurana, J.@mdashThis Second Appeal has been directed by the Defendants against the judgment and decree dated 21.8.1989 of the learned District Judge, Nahan, affirming the judgment and decree dated 16.1.1988 of the learned Sub Judge, Nahan, passed in Civil Suit No. 1/1 of 1986.
2. Land measuring 90 bighas 13 biswas comprising of Khasra Nos. 148, 425, 456, 457 and 458 falling in the estate of Johri Bain and Nauni Bagh within the area of Nahan town, was owned by S/Shri Kishori, Saran, Rewti Saran and Jagdish Saran sons of Jyoti Parshad. They constructed a temple and installed deity of Narsingh Ji Maharaj therein. The abovesaid 90 Bighas 13 Biswas of land was gifted to the deity. The gift which was oral was made on 5.3.1938. One Prem Dass was appointed as Mohatmim on 13.12.1994 (BK) for the management of the temple and the landed property gifted to the deity. Thereafter one Dev Dutt, father of Defendant No. 1 (since deceased) came to be appointed as Mohatmim of the temple in the year 1952. Defendant No. 1 Sumer Chand started managing the affairs of the temple as its Mohatmim after the death of his father Dev Dutt.
3. Defendant No. 2, Smt. Garib Devi, claiming herself to be a tenant in respect of 10037.39 Sq. metres in Khasra Nos. 243, 244 and 245 (corresponding to old Khasra No. 148) on payment of annual rent of Rs. 50/- filed a suit being Civil Suit No. 25/1 of 1984 for a declaration of her tenancy rights. It was averred that the land belonging to the deity was leased out to her by deceased Defendant No. 1, Sumer Chand as Mohatmim of the temple. The claim of Defendant No. 2 Garib Devi was conceded by deceased Defendant No. 1 and consequently the said suit of Defendant No. 2 was decreed on 21.7.1984.
4. Defendant No. 1, Sumer Chand, acting as Mohatmim of the temple further leased out 871.28 Sq. metres and 438.75 Sq. metres out of 90 bighas 13 biswas of land belonging to the temple for a period of ten years on 5.5.1980 in favour of his own daughter Chander Prabha, Defendant No. 3 at an annual rent of Rs. 50/-. Another area of 1117.24 Sq. metres was further leased out by Defendant No. 1, Sumer Chand, as Mohatmim of the temple on 31.7.1985 for consideration of Rs. 10,000/- for a period of 99 years in favour of Defendant No. 4, Smt. Saroj.
5. Aggrieved by such alienations by way of lease made by deceased Defendant No. 1, Sumer Chand, acting as Mohatmim of the temple, a suit came to be filed by Plaintiffs-Respondents 2 and 3 as worshipper of the temple and Plaintiffs-Respondents No. 4 to 8, the successors-in-interests of the original founders of the temple. The deity was impleaded as Plaintiff-Respondent No. 1. In such suit a declaration was sought to the effect that the alienations by way of lease made by deceased-Defendant No. 1 Sumer Chand acting as Mohatmim of the temple in favour of Defendants 2 to 4 are null and void, illegal and not binding on the rights of the deity, since the same were made without any authority. As a consequential relief a decree for permanent injunction was claimed for restraining Defendant No. 1 Sumer Chand from alienating any other property of the temple. Possession of the lands leased out in favour of the Defendants No. 2 to 4 was also prayed for. It was averred that the temple of Narsingh Ji Maharaj was a public temple and the properties attached thereto owned by the deity was being used for the benefit of the general public. Defendant No. 1 Sumer Chand as Mohatmim could not have alienated the properties of the deity without any legal necessity.
6. The suit was resisted and contested by the four Defendants. Though four separate written statements were filed, the Defendants took a common defence. The Defendants admitted that Defendant No. 1 Sumer Chand was the Mohatmim of the Temple. Alienations by way of lease in respect of different parcels of land in favour of Defendants No. 2 to 4 by the Defendant No. 1 as Mohatmim were also admitted. They averred that the temple was not a public temple but was a private temple set up for the benefit of the donors and their successors-in-interest. The alienations by way of lease were valid having been made by the Mohatmim for consideration and legal necessity as a prudent man. Legal objections as to valuation of suit, maintainability of the suit as laid, the suit being barred u/s 34, Specific Relief Act, absence of cause of action, suit being collusive and bad for non-joinder of necessary parties were also raised.
7. As many as 24 issues were framed by the learned trial court on the basis of the pleadings of the parties. The learned trial court answered all but one issue in favour of the Plaintiffs. Under issue No. 5, which was decided in favour of the Defendants, it was held that Defendant No. 1 Sumer Chand was the legally appointed Mohatmim of the temple. The Plaintiff No. 1 temple was held to be a public temple. The alienations by way of lease in favour of Defendants No. 2 to 4 were held to be illegal, null and void. The suit of the Plaintiffs for declaration and possession was decreed as prayed, vide judgment and decree dated 16.1.1988.
8. The judgment and decree dated 16.1.1988 of the learned trial court were assailed by Defendants No. 1 to 4 by way of three separate appeals, being Civil Appeal Nos. 10-N/13 of 1988, 11-N/13 of 1988 and 12-N/13 of 1988. All the three appeals were disposed off by the learned District Judge by a common judgment dated 21.8.1989. The learned District Judge dismissed all the three appeals. The findings of the learned trial court on all the issues were affirmed. The learned District Judge while upholding the findings of the learned trial court holding the temple to be a public temple, proceeded to further hold that the alienations by way of lease made by Defendant No. 1 in favour of Defendants No. 2 to 4 as illegal, null and void even on the assumption that the temple is a private temple. The learned District Judge in para 17 of the judgment has observed:
Even if for the sake of arguments, it is admitted that the temple is a private temple of the donors and their successors-in-interest including the Plaintiffs-Respondents still the position of the Mohatmim Sumer Chand is worse. Mohtmim or manager of the private temple has no right or powers to alienate the property of his principal without the specific authorisation or power of attorney in his favour. But surprisingly neither such plea has been taken by the Defendants-Appellants nor proved on record if Sumer Chand was authorised by the donors or their successors-in-interest to lease out the property. Rather Jagdish Chand one of the Plaintiff (successors-in-interest of the donors) has clearly stated that Sumer Chand was not authorised to make such alienation. Thus, the findings of the lower Court on this point are affirmed and both these points are decided against the Appellants.
9. Feeling aggrieved, Defendants No. 1 to 3 have come up before this Court by way of present Second Appeal. Defendant No. 4, who has not assailed the findings of the learned District Judge, has been impleaded as proforma-Respondent No. 11.
10. Defendant No. 1, Sumer Chand, and Plaintiff No. 6 Radhey Shyam died during the pendency of the present suit. Their names were ordered to be deleted from the array of the Appellants and Respondents respectively, vide order dated 20.4.1988 and 28.7.1997.
11. The present appeal was admitted for hearing on 9.3.1990 on the following substantial question of law:
1. Whether the lease in question can be said to be one in the ordinary course of management of the temple?
12. During the course of hearing of the present appeal, with the leave of the court, the following additional substantial questions of law were permitted to be raised:
2. Whether the suit was bad for non-joinder of necessary parties, that is, Sarvshri Revti Raman and Madhuri Saran sons of Beni Parshad?
3. Whether the suit for mandatory injunction for demolition of the structure raised by the Defendant, could be passed without considering the question of relative hardships and injury or without taking into consideration the question of grant of compensation?
4. Whether the suit is liable to be dismissed on the failure of the Plaintiffs to seek the requisite leave of the Court u/s 92, Code of Civil Procedure?
5. Whether the findings of the two courts below holding the temple to be public endowment are erroneous and perverse in view of the evidence coming on record?
13. I have heard the learned Counsel for the parties and have also gone through the record of the case. My findings on the above questions are as under:
Question No. 4.
14. This question is being taken up first since it pertains to the very maintainability of the suit. Once the question is answered in favour of the Defendants, the other questions raised would be rendered redundant.
15. Section 92, Code of Civil Procedure, insofar as it is material for the purpose of the present case, provides:
Public charities.-In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where directions of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree:
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require.
(2) ...;
(3) ...
16. In order that Section 92, Code of Civil Procedure, may apply, the following conditions necessarily have to be satisfied:
(i) there must exist a trust for public purposes of a charitable or religious nature;
(ii) there must be allegations in the plaint that there is a breach of such trust, or that direction of the court as necessary for the administration of the trust;
(iii) the suit must be a representative one on behalf of the public and not by individuals for their own interest; and
(iv) the relief(s) claimed in the suit must be one of the reliefs detailed in Clauses (a) to (g) of Sub-section (1) of the Section.
17. All the above conditions must co-exist and where any one of the conditions is absent, Section 92, Code of Civil Procedure, would have no application. Applicability of the Section would depend upon the allegations made in the plaint and does not fall for decision with reference to the averments made in the written statement.
18. An analysis of the plaint in the present case shows that the following reliefs have been claimed by the Plaintiffs:
(i) declaration to the effect that Defendant No. 1, Sumer Chand, has no right to represent himself to be the Mohatmim of the temple Plaintiff No. 1 and that the alienations made by him in the form of lease in favour of Defendants No. 2 to 4 as Mohatmim are illegal, null and void, and not binding on the rights of the Plaintiff No. 1;
(ii) Permanent injunction for restraining the Defendants from interfering with the ownership and possession of Plaintiff No. 1 temple in respect of its properties; and
(iii) Possession of the lands in illegal possession of the Defendants No. 2 to 4 by demolition of the superstructure raised therein.
19. None of the above reliefs claimed by the Plaintiffs brings the suit within the ambit of Section 92, Code of Civil Procedure. Therefore, the suit is not bad for want of leave of the court as contemplated by the said section.
20. In
21. It was held by a Division Bench of the Bombay High Court that a suit for declaration that the suit property belongs to a public trust of a religious and charitable character does not fall within the mischief of Section 92, Code of Civil Procedure. It was further held that a suit for possession of the trust properties where the claim is made against the alienees is obviously outside the purview of Section 92.
22. The above decision of the Bombay High Court was affirmed in appeal by the Hon''ble Supreme Court in
23. The present suit also in substance is a suit for possession of the lands belonging to the temple against the lessees. Therefore, Section 92, Code of Civil Procedure, would not be applicable. The question is answered against the Defendants.
Question No. 5.
24. The two courts below have on the basis of evidence coming on record, concurrently held that the temple Thakur Narsingh Ji Maharaj, Plaintiff No. 1 is a public temple.
25. The question whether a temple and the deity installed therein is a private or public temple is a question of fact. Such question depends upon the inferences which can be legitimately drawn from the facts not in dispute and from the unambiguous evidence on the record of the case. (See: Laxmanrao Umajirao v. Govindrao Madhorao and Ors. AIR 1950 Nag 215 ;
26. The Hon''ble Supreme Court in Kashibai and Anr. v. Parwatibai and Ors. 1996 (1) Sim. L.J. 315, had held that concurrent findings of fact of the two courts below, even if erroneous, cannot be interferred with in second appeal.
27. In the present case, there has been no misappreciation of evidence by the two courts below. Plaintiff No. 5 Jagdish Kumar, is one of the successors of the original founders of the temple. He has categorically stated that the temple set up for the public at large.
28. The case set up by the Defendant No. 1 in his written statement and in his own statement as DW 1 is self contradictory. While in the written statement the Defendant No. 1 has categorically admitted that land measuring 90 bighas 13 biswas was gifted in favour of the deity by S/Sh. Kishori Saran, Rewati Saran and Jagdish Saran, in his statement as DW 1 he has denied the ownership of the deity qua such land and has deposed that the successors of the abovesaid donors are the owners of such land.
29. It is in evidence that the family of the donors who had constructed the temple after having gifted 90 bighas 13 biswas of land in favour of the deity had left Nahan for good. None of such successor is presently living at Nahan or even in the State of Himachal Pradesh. It, therefore, does not stand to reason that the temple is a private one for the benefit of the family members of the donors.
30. On the basis of evidence coming on record, the findings of the two courts below holding the temple to be a public temple cannot be said to be either erroneous or perverse. The question is answered against the Defendants.
Question No. 1
31. There is no denying that as a general rule of Hindu Law, property given for the maintenance of religious worship, and of charities connected with it, is alienable. The power of a Shebait or a Mohatmim to alienate debutter property is analogous to that of a Manager for an infant heir and he has no power to alienate debutter property except in a case of need or for the benefit of the estate. [See :
32. It is also well settled that where there has been an alienation of debutter property, the burden lies on the alienee to prove:
(a) that there was in fact a legal necessity ; or
(b) that he made proper and bona fide enquiries as to the existence of such necessity and did all that was reasonable to satisfy himself as to the existence of such necessity.
33. In the present case, no evidence has been led by the alienees, namely, Defendants No. 2 to 4 to show the existence of a legal necessity or that they had made a proper and bonafide equiry as to the existence of such necessity. So much so that none of the Defendants No. 2 to 4 has stepped into the witness box to depose in support of her case and to subject herself to cross-examination by the Plaintiffs.
34. It has been held by the Hon''ble Supreme Court in Ishwar Bhai C. Patel @ Bachu Bhai Patil v. Harihar Behera and Anr. 1999 (2) CCC 171 (SC) that if a Defendant does not enter the witness box to make a statement on oath in support of the pleadings set out in the written statement, an adverse inference would arise that what he had stated in the written statement was not correct.
35. In the present case as well on the failure of the Defendants No. 2 to 4 to step into the witness box, an adverse inference will have to be drawn against them that the alienations made in their favour by way of lease were without any legal necessity.
36. Even otherwise the lease in favour of Defendants No. 2 to 4 cannot be said to be an act of a prudent man in the ordinary course of management of the temple. The H.P. Tenancy and Land Reforms Act, 1972 (Act No. 8 of 1974) came into force on and with effect from 21.2.1974. u/s 104(3) thereof on an with effect from the appointed day all rights, interests of the owner of the land would stand extinguished and all such rights, title or interest in the land would vest in the tenant free from all encumbrances. In the case of tenancy created after the coming into force of the said Act, the tenant would acquire the proprietary rights immediately on the creation of tenancy. Thus by creating tenancies in favour of Defendants No. 2 to 4, the Defendant No. 1 had in fact deprived the Plaintiff No. 1 of its ownership qua the land leased out. The learned District Judge has rightly observed and held that the lease in favour of Defendants No. 2 to 4 cannot be held to be valid even if it be assumed that the temple is a private temple. Defendant No. 1 was not holding any authority on behalf of the donors to alienate the property in any manner. Defendant No. 1 has himself admitted that he was not holding any authority on behalf of the donors.
37. The question is as such answered in favour of the Plaintiffs and against the Defendants.
Question No. 2.
38. The Defendants have averred that the suit is bad for nonjoinder of necessary parties inasmuch as all the successors of the founders of the temple have not been impleaded as parties to the suit.
39. It may be stated that an application, being CMP No. 46 of 1999 has also been made by the one Revti Raman under Order 1, Rule 10, Code of Civil Procedure, for being impleaded as a party to the present appeal.
40. In view of the findings that the temple is a public temple, neither the applicant is a necessary party nor the suit can be held to be bad for non-joinder of necessary parties. The question is, therefore, answered against the Defendants.
Question No. 3.
41. The Plaintiffs have claimed possession of the land by demolition of the superstructure raised by Defendant No. 4 in the land leased out to her by Defendant No. 1. Once the lease in favour of Defendant No. 4 is held to be null and void, Defendant No. 4 would be deemed to be in illegal and unauthorised possession of such land.
42. It is well settled that a party in unauthorised possession of the land is not entitled to compensation for any improvement carried out by him or for any construction raised by him. Besides, no such plea was raised by Defendant No. 4 in her written statement that she is entitled to compensation for the super-structure raised by her and if so to what extent.
43. It is also significant to note that Defendant No. 4 has not assailed the findings of the two courts below whereby the superstructures raised by her has been ordered to be demolished. It is not open to Defendants 2 and 3 to assail such findings. Admittedly, no construction has been raised either by Defendant No. 2 or by Defendant No. 3.
44. The question is as such decided against the Defendants.
Final Order.
45. As a result of the above questions having been answered against the Defendants, the present appeal fails and the same is accordingly dismissed. The parties are, however, left to bear their own costs.
