RFA No. 1845 of 1987 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RFA No. 1845 of 1987 (O&M) Date of Decision: 13.10.2009 Ram Kishan ..Appellant Vs. Gobind Ram & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.R.S.Mittal, Sr.Advocate, with Mr.Atul Gaur, Advocate, for the appellant. Mr.Jai Bhagwan, Advocate, for respondent No.1. Mr.Jagdish Manchanda, Advocate, for respondents No.2 to 4. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- RFA No. 1845 of 1987 2 Vinod K.Sharma,J. CM No.10202-CII of 2009 This is an application moved under section 151 of the Code of Civil Procedure for disposing of Civil Misc. application No.6829 of 2003 filed under Order 41 Rule 27 of the Code of Civil Procedure (For short the Code). The applicant-respondents had moved an application i.e. Civil Misc. No.6828 of 2003 for vacation of stay order for non-compliance of the order passed by this court. Another application was moved for additional evidence under Order 41 Rule 27 read with section 151 of the Code for placing on record additional evidence i.e. Annexure P.22. Application for modification of stay was dismissed by this court. While disposing of the application, application moved for additional evidence was also disposed of without deciding it on merit. Therefore, prayer has been made for deciding the application No.6829 of 2003 on merit in accordance with law. Notice of the application was given. Application has been opposed primarily on the ground that the provisions of Order 41 Rule 27 of the Code cannot be invoked to bring additional evidence on record except on the ground mentioned therein. On the other hand, a prayer has been made that Annexure R.1 be taken on record as that would be necessary for proper adjudication of the case. It is, however, not disputed that the application moved under Order 41 Rule 27 of RFA No. 1845 of 1987 3 the Code was not disposed of on merit. This application is accordingly allowed. CM No.6829-CI of 2003 This is an application moved by the respondent/applicants under Order 41 Rule 27 read with section 151 of the Code for leading additional evidence by producing Annexure “A” i.e. copy of Khasra Paimaish on the plea that the document Annexure A is necessary for pronouncement of judgment in the present case. It is averred that Annexure A is a certified copy of field Book No.1885 which is a public document and genuineness of which cannot be doubted. Application is opposed on the plea that the evidence now sought to be brought on record was available with the applicant before the learned trial court and therefore, cannot be permitted to beled under the provisions of Order 41 Rule 27 of the Code, as no additional evidence can be allowed, except on the ground set out under the provisions of order 41 Rule 27 of the Code. Reliance in this regard was placed on the judgments of Hon'ble Supreme Court in the case of The Municipal Corporation of Greater Bombay Vs. Lala Pancham and Ors. AIR 1965 SC 1008, and Mahavir Singh & Ors. Vs. Naresh Chandra & Anr. (2001) 1 SCC 309. In The Municipal Corporation of Greater Bombay Vs. Lala Pancham and Ors. (supra), Hon'ble Supreme Court has been pleased to lay down as under:- “ Under O.41, Rule 27 the appellate Court has the power to RFA No. 1845 of 1987 4 allow a document to be produced and a witness to be examined. Btu the requirement of the said Court must be limited to those cases where it found it necessary to obtain such evidence for enabling it to pronounce judgment. This provision does not entitle the appellate Court to let in fresh evidence at the appellate stage where even without such evidence it can pronounce judgment in a case. It does not entitle the appellate Court to let in fresh evidence only for the purpose of pronouncing judgment in a particular way. In other words, it is only for removing a lacuna in the evidence that the appellate Court is empowered to admit additional evidence.” On consideration of matter, I find force in the application moved by the applicant/respondents. The document sought to be produced on record is necessary for this court to pronounce the judgment in this case. The prayer made is covered under Order 41 Rule 27 (1)(b) of the Code. The application is accordingly allowed and the document Annexure A is taken on record as Ex.A. As prayed for by the applicant/appellant Annexure R..1 is also taken on record by way of additional evidence as this document is also necessary for this court to pronounce the judgment. RFA No.1845 of 1987 The defendant/appellant by way of this appeal has challenged the judgment and decree dated 5.8.1987 passed by the learned Additional District Judge, Kurukshetra, allowing the civil suit filed under Section 92 of RFA No. 1845 of 1987 5 the Code by the plaintiff/respondents. The plaintiff/respondents filed a suit under section 92 of the Code for removal of the appellant Ram Kishan alleged Khidmatguzar from Thakur Dawara in village Niwarsi Tehsil Ladwa District Kurukshetra. Plaintiff/respondents claiming themselves to be the residents of village Niwarsi filed a suit on the allegations that Thakur Dawara existed in the village Niwarsi which was being looked after by one Sharda Nand as Khidmatguzar. The Thakur Dawara was created by the residents of village Niwarsi for charitable and religious purposes. A large landed property was also attached with Thakur Dawara, so that kitchen as well as religious ceremonies could be performed by the Khidmatguzar. The land attached to Thakur Dawara measured 137 Kanals 15 marlas. A Shiv temple also existed and devotees used to offer money and jewellery there. Sharda Nand was looking after the property of Thakur Dawara on behalf of Mehant Sewadar. He got himself married with the wife's sister of defendant Ram Kishan and thereafter left the village. Defendant took over the property in an unauthorised manner though he was never appointed as Khidmatguzar. The defendant demolished Shiv temple and was misusing the offering and produce of the land for his personal use. It was also alleged in the plaint that Ram Kishan was a Garasthi and no Garasthi could be a Khidmatguzar of a shrine. It was prayed that he be removed, and some other fit person be appointed to look after Thakur Dawara. An application was also moved for the grant of permission as required under section 92 of the Code which was allowed at the time of RFA No. 1845 of 1987 6 institution of the suit. The suit was contested wherein locus standi of the plaintiff/respondents to institute the suit was challenged. It was pleaded that the plaintiffs No.1 and 2 were displaced persons having come from West Pakistan, whereas plaintiff No.3 was Balmiki and plaintiff No.4 Harijan. Plaintiffs never worshiped in Thakur Dawara. The case set up by the defendant/appellant was, that he was Chela aged 35 years and Shardanand was asked to look after the affairs of Thakur Dawara during the minority of the defendant. He was, thus, recognized a Khidmatguzar of Thakur Dawara. Objection was also raised regarding maintainability of the suit for want of list of interested persons. Plea of adverse possession was also taken in preliminary objections. On merit, allegations levelled in the plaint were denied. The case set up was, that it was as per the wishes of Mahant Sewadar that Shardanand left the office of Khidmatguzar and gave it to the defendant and he had also been appointed at the age of 5 years. It was denied that Thakur Dawara was created by the residents of village and and that they donated any land for the said Thakur Dawara. Thakur Dawara was said to have been established by a single individual who was original Mahant and founder of Thakur Dawara. It was claimed to be a private institution and the adjoining property was added by the original creator of Thakur Dawara. General Public, therefore, had no concern with Thakur Dawara nor had any control over its affairs. According to the customs, Khidmatguzar, were appointed by the previous Khidmatguzar. It was also denied that the defendant had RFA No. 1845 of 1987 7 changed the institution, in any manner, or had used its income for any purpose other than for which the institution was established. Allegations of marriage was also denied. It was also denied that Shiv temple was demolished. On the contrary, it was pleaded that the defendant had increased the income of Thakur Dawara by installing two tube-wells and by reclaiming the Banjar land. It was, therefore, prayed that the suit be dismissed with special costs. Replication was filed and one of the issues framed was “Whether the civil courts had jurisdiction to try the suit? Vide order dated 4.9.1984 issue of jurisdiction was decided in favour of the plaintiff/respondents and thereafter, the learned trial court framed the following issues:- 1. Whether the Thakur Dawara is a public trust? If so, to what effect? OPP 2. Whether the defendant is not managing properly the trust property, if so to what effect? OPP 3. Whether the defendant is not a fit person to be kept as Thakur Dawara/Manager of the Thakur Dawara? OPP 4. Whether the plaintiffs have no locus standi to institute and maintain the present suit? OPD 5. Whether the plaintiffs are estopped from filing the suit by their own act and conduct? OPD 6. Whether the suit is not maintainable? OPD 7. Whether the defendant Ram Kishan has not been RFA No. 1845 of 1987 8 correctly described in the title of the suit if not to what effect? OPD 8. Whether the plaintiffs have not filed any list of the persons on whose behalf they instituted the present suit in the representative capacity if not to what effect? OPD 9. Whether the present suit is not correctly valued for purposes of court fee and jurisdiction? OPD 10. Whether the defendant is entitled to special costs under Section 35-A CPC ? OPD 11. Whether the permission granted by the court is valid?OPD 12. Relief. An application, therafter, was moved for the amendment of plaint under Order 6 Rule 17 of the Code and name of Gobind Dass was sought to be deleted. The application moved under Order 6 Rule 17 of the Code was allowed and amended plaint was thereafter filed on 2.5.1985. Amended written statement was also filed and fresh replication was taken on record. In support of their case plaintiff/respondents examined Gobind Ram as PW 1 and Rulia Ram as PW 2, whereas on behalf of the defendant Smt.Parkash Wanti appeared as DW 1, Dalbir Singh as DW 2 and Jiwan Ram as DW 3. The plaintiffs also placed on record resolution Ex.P.1 RFA No. 1845 of 1987 9 authorizing the filing of the suit, Ex.P.1/A and P.1/B entries in the Register; Exs.P.2 to P.4 copies of jamabandi for the year 1970-71, 60-61 and 1953 to 1956; Ex.P.5 copy of khatauni, Ex.P.6 copy of Naksha Haqdarwar; Exs.P.7 and P.8 copies of register Kawai. Exs.P.9 to P.17 copies of jamabandis from 1982 onwards and Ex.P.18 copy of mutation No.1573, Ex.P.19 copy of mutation No.1754 and Ex.P.20 copy of mutation No.1755 and Ex.P.21 copy of Khasra girdawari for the year 1973-74. The defendant relied upon Ex.D.1 copy of jamabandi for the year 1975-76; Ex.D.2 copy of jamabandi for the year 1980-81; Exs.D.3 and D.5 sale deeds dated 26.12.1977; Ex.D6 sale deeds dated 5.6.1976; D.7 sale deeds dated 13.12.1976; Ex.D.8 copy of mutation No.1593; Ex.D.9 copy of mutation No.1794; Ex.D.10 copy of mutation No.1595; Ex.D.11 copy of mutation No.1735; XD.12 copy of mutation No.1753; Ex.D.13 copy of mutation No.1759 and Ex. D.14 copy of mutation No.1760. Learned trial court was pleased to hold that issue No.1 was the main issue which could determine the fate of the case. Learned trial court found that Exs.P.16 and P.17 copies of jamabandi for the years 1982-83 showed the property to be in the ownership of Jiwan Dass, whereas in Ex.P.15, jamabandi for the year 1986-87 Kanshi Dass was shown to be chela of Janki Dass, in the earlier documents property was shown to have been donated by the villagers. Therefore, it was held that Thakur Dawara was created by villagers and was a public trust. Note was taken of other documents showing succession of various Khidmatgujar's from previous Chelas. The learned trial court found that the defendant was not appointed RFA No. 1845 of 1987 10 by the villagers and had entered the property as trespasser. The leaned trial court took note of the facts that DW 2 admitted that it was not the personal property of defendant and concluded that it was a public trust and not private trust. Reliance in support of this finding was placed on the following judgments: Thakur Radha Krishanaji Maharaj and others Vs. Ram Parsad Pandey and others AIR 1975 Allahabad 268; Ram Chand (dead) by his Legal representatives Vs. Thakur Janki Balabhji Maharaj and another AIR 1970 SC 532; Sri Ram Vs. Prabhu Dayal and ors AIR 1972 Rajasthan 180; Gopal Krishna Vs.Lal Kishan AIR 1978 Allahabad 48; and Deoki Nandan V. Murlidhar and others AIR 1957 SC 133. The plea of the defendant that the plaintiff/respondents failed to link the suit property with Exs.D.16 and D.17 and that as per Ex.D.14 Thakur Dawara was constituted for the first time by Kanshi Dass and that earlier the suit land was in the name of Kanshi Dass was not accepted. Plea of appellant that simply because Janki Dass was mentioned in ExP.17 and Kanshi Dass was mentioned as Chela, it could not be inferred that it was the same property which was donated by the villagers. Plea that the witnesses of the plaintiffs could not tell about the origin of Thakur Dawara was not accepted. The learned trial court also rejected the plea of the defendant- RFA No. 1845 of 1987 11 appellant that it was a private trust and not public truest. The learned court in order to reach this conclusion that it was a public trust relied upon the judgment of Hon'ble Supreme Court in the case of Deoki Nandan V. Murlidhar and others (supra), wherein Hon'ble Supreme Court has been please to lay down as under:- “ The distinction between a private and a public trust is that whereas in the former the beneficiaries are the general public or a class thereof. While the former the beneficiaries are are persons who are ascertained or capable of being ascertained, in the latter they constituted a body which is incapable of ascertainment. A religious endowment must, therefore, be held to be private or public according as the beneficiaries thereunder are specific persons or the general public or sections thereof.” The learned trial court also took note of the judgment in the case of Sri Ram Vs. Prabhu Dayal and ors (supra), wherein it was held as under:- “ The original 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, the consciousness of the manager and and the consciousness of the devotees themselves as to the character of the temple are factors that go to establish whether a temple is a public temple or a private. By far the most important thing to determine is RFA No. 1845 of 1987 12 whether the public can have access to the temple as a matter of right. A private temple is generally meant for private individuals or an ascertainable group, whereas a public temple is for the benefit of public at large. The weight to be attached to the several factors found in a case would depend on the circumstances of that case and several of the factors may be present, but the decision is on a conspectus of the entire chain of circumstances. Where it is clear from the evidence that that for long the public have been going to the temple in question for the darshan, they have been making offerings to the deity, also the public join the festivals and marriage parties and other visitors stay in the temple, and that the expenses of the temple or the deity are met from the offerings and by whatever rent is derived on account of the travellers or 'Yatris' staying in the temple, the temple is a public one.” The learned trial court on appreciation of evidence decided issue No.1 in favour of plaintiff/respondents. Findings recorded reads as under:- “14. From the evidence discussed above, it has been establish that the property of Thakur Dawara was donated by the villagers and it is not the personal property of a particular individual and that public at large used to attend the Thakur Dawara where bhandaras are held, it fully satisfied the test laid RFA No. 1845 of 1987 13 down for the formation of public trust in the authorities referred to above which has been relied upon by the counsel for the plaintiffs. The judgments of ht counsel for the defendant which have been discussed hereinbefore are based on facts of those particulars cases and their ratio as such cannot be made applicable to the facts of the present case which point out towards the formation of the Public trust rather than the private institution. I, therefore, hold that the Thakur Dawara is a public trust. At the same time I must add that the Thakur Dawara was being managed by Khidmatguzars (Gurus) and he had to authority to appoint his successor. This practice has not been even challenged by the plaintiffs except that their assertion is that Ram Kishan defendant was not appointed properly and he was not managing the property. As already stated above, when the earlier practice of appointing chelas by the previous gurus has been challenged, it does not lie in the mouth of the plaintiff to say that Ram Kishan has not been appointed properly by his previous gurus. I,therefore, hold that the appointment of Ram Kishan was proper. Issue No.1 is disposed of accordingly.” The learned trial court found on issue No.2 that the defendant- appellant was not maintaining any accounts of the income and expenditure and therefore, held that Thakur Dawara was not being managed properly. Consequently, issue No.2 was also decided in favour of the plaintiffs and against the defendant. Issues No.4 to 11 were not pressed and suit was RFA No. 1845 of 1987 14 accordingly decreed. Relief granted reads as under:- “18. In view of my findings recorded above, that suit of the plaintiffs for removal of the defendant from the office of Khidmatgujar of the Thakur Dawara is hereby decreed with costs. The plaintiffs are directed to put up a scheme for appointing new manager/Khidmatguzar to look after the Thakur Dawara who will be entrusted with the task of inquiring into the accounts from 1968 onwards as prayed for in the suit. Till new scheme is finalized, defendant would continue managing the affairs.” Mr. R.S.Mittal, learned senior counsel appearing on behalf of the appellant challenged the judgment and decree passed by the learned court below on the plea that there was no evidence on record to prove the donation by the villagers for creation of the Thakur Dawara. Mere fact that public attend temple and give offerings and that the public was admitted to the temple for Darshan and worship was not sufficient to hold that the temple was one for the benefit of the public. Learned senior counsel in support of the contention that Thakur Dawara could not be said to be a public trust relied on the judgment of Hon'ble Supreme Court in the case of The Bihar State Board of Religious Trust (Patna) vs. Mahanth Sri Biseshwar Das AIR 1971 SC 2057, wherein Hon'ble Supreme Court was pleased to lay down as under:- “15. The case in point is of Babu Bhagwan Din vs. Gir RFA No. 1845 of 1987 15 Har Saroop, Ind App 1 = (AIR 1940 PC 7). The original grant there was to the respondents' ancestor, one Daryao Gir, by the then Nawab of Oudh. The property in question comprised of land on which stood the temple, the presiding deity of which was Bhaironji, certain houses and shops. The respondents, who claimed to be the descendants of the original grantee, were grahastha fakirs, i.e., both goshains and house holders. There was no proof that there had been any interference with the management of the properties. The revenue records showed the properties in the names of the descendants of Daryao Gir. The shops were let out and in the leases concerning them the goshains were referred to sometimes as owners and sometimes as owners of the "asthan Sri Bhaironji'. There was evidence, however, of members of the Hindu public having resorted to the temple for worship and darshan without any obstruction. An annual mela used to be held for many years with public subscription on the grounds of the temple. The evidence showed that the temple and the gushains profited from the increased resort to the temple by the public the mela period. Yet, the Privy Council held that the general effect of the evidence was that the family had treated the temple RFA No. 1845 of 1987 16 as family property and the mere fact of the members of the public having come to the temple and having made offerings and the mela having been held which gave popularity to the temple and increased its esteem in the eyes of the public and the fact that they were never turned away were not enough to hold the temple and the properties as a public trust. At page 10 of the report their Lordships observed: “Dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family. Such an inference, if made from the fact of user by the public, is hazardous, since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away; and, as worship generally implies offerings of some kind, it is not to be expected that the managers of a private temple should in all circumstances desire to discourage popularity." Thus, the mere fact of the public having been freely' admitted to that temple cannot mean that courts should readily infer therefrom dedication to the public. The value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the RFA No. 1845 of 1987 17 user was as of right. No such evidence of any reliable kind was available, to the appellant-Board in the instant case.” Learned senior counsel for the appellant also placed reliance on the judgment of this court in the case of Ram Lal son of Kotu Mal & Ors. Vs. Khushi Ram and Ors. AIR (36) 1949 East Punjab 233, to contend that the learned trial court committed an error in holding it to be a public trust in the absence of any proof of donation by the villagers. Hon'ble Punjab High Court in the case of Ram Lal son of Kotu Mal & Ors. Vs. Khushi Ram and Ors. (supra) was pleased to lay down as under:- “16. Before entering into the merits of the plaintiffs' claim that they are de facto managers of wakf it appears to be desirable to say a few words regarding the legal position, which was strenuously debated upon before us. The defendants' counsel contended that a de facto manager is no more than a trespasser and he cannot sue for the possession of the trust property. His contention is no doubt supported by a few authorities. In Vedakannu Nadar and others Vs. Nanguneri