RSA No.3175 of 2007(O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No. 3175 of 2007 (O&M) Date of Decision: December 02,2009 Raj Dass and another ...........Appellants Versus Mandir Thakur Ji Wala and others ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.G.S.Dhaliwal, Advocate for the appellants Mr.Haresh Manuja, Advocate for the respondents ** Sabina, J. Plaintiffs filed a suit for declaration with consequential relief of permanent injunction. The said suit of the plaintiffs was decreed by the Civil Judge (Junior Division) Panipat vide judgment and decree dated 28.11.2005. Aggrieved by the same, defendants filed an appeal and the same was dismissed by the Additional District Judge,Panipat vide judgment and decree dated 29.3.2007. Hence, the present appeal by the defendants. The case of the parties, as noticed by the learned District Judge, in paras 1 to 4 of its judgment read as under:- “ 1.There is a Mandir known by the name of `Thakur Ji Wala' in village Bal Jatan, Tehsil and District Panipat. Plaintiffs no. 2 to 21 are permanent residents of village Bal Jatan and also members RSA No.3175 of 2007(O&M) 2 of the Gram Sabha as well as a Committee constituted by the villagers. It is the case of the plaintiffs that the affairs of the Mandir Thakur Ji Wala i.e. Defendant no.1 are being controlled and managed by them and they are competent to appoint Mahant and Pujari of that Mandir. The land in dispute is owned and possessed by said Mandir and which was left by the villagers for its maintenance and welfare. Jamna Dass defendant was appointed as a Mahant of that Mandir about 30 years ago for performing religious ceremonies and looking after the Mandir and its properties. But in October, 1997, he played a fraud with the Mandir and suffered a judgment and decree dated 21.3.88 of the land in dispute in favour of defendant no.2. That judgment and decree has been challenged by the plaintiffs on various grounds mentioned in para no.5 of the plaint and which may be detailed as under:- (i) That defendant no.2 was not competent to get passed the judgment and decree in question in favour of the defendant no.1 because neither he was owner nor in possession of the suit land, Mandir and its property. He was only a Mahant. (ii) That the value of the Mandir property is in may lacs of rupees which was necessary registerable under he Registration Act. Even otherwise, there was no pre-existing right in order to pass title, rights and the property comes under the Registration Act. So, the judgment and decree is liable to be set aside being illegal. (iii) That judgment and decree is result of fraud, misrepresentation and has been got passed secretly without telling anything to the RSA No.3175 of 2007(O&M) 3 villagers and plaintiffs. (iv) That the suit has been filed on 14.3.88 and the judgment and decree was passed on 21.3.1988. So the case has been decided so hurriedly. Defendant no.1 has no right in the suit land because he was never appointed as Mahant by the villagers and even the villagers never think to appoint him as Mahant. (v) That the contents of the plaint of the civil suit no.177/88 are also wrong and against the facts. In para no.1 of the plaint, it has been alleged that defendant no.2 adopted Chela to defendant no.1 but it is wrong as defendant no.1 was never adopted as Chela by defendant No. 2 as no ceremony for said adoption was ever done in the village. Defendant no.1 never came in possession of the suit land. The possession and ownership over the suit land is of the said Mandir. Even otherwise, adoption was made as alleged before 25 years ago and at that time, defendant no.2 was not able to cultivate the suit land is also wrong. Para no.3 and 4 of the plaint are also wrong and against facts. Defendant no.2 was never recorded as owner and he never cultivated the suit land. It is further case of the plaintiffs that after passing of judgment and decree with regard to the land in dispute, mutation no.994 was also sanctioned. After that and taking advantage of the revenue entries, Raj Dass defendant mortgaged the land in dispute for a sum of Rs.1,09,800/- with State Bank of India, Sodhapur for purchasing of a tractor. So, entries recorded in this regard are also wrong, illegal, null and void as defendant no.1 was not competent to obtain loan mentioned above. When despite a RSA No.3175 of 2007(O&M) 4 number of reminders, defendants refused to admit the claim of the plaintiffs over the land in dispute and to treat the impugned judgment and decree as illegal, null and void and not to transfer the land in dispute, a suit seeking a decree for declaration and permanent injunction as prayed above was filed. 2.But the case of the defendants as set up in the joint written statement dated 27.1.1998/9.8.2005 is that neither there is any Gram Sabha of village Bal Jatan nor any committee was constituted to look after the affairs of Mandir Thakur Ji Wala. It was denied that the villagers performed Pooja at the above said Mandir. In fact, from the very begining, Mahants have been performing Pooja in that Mandir. It was denied that defendants no. 2 to 21 were controlling and managing the affairs of the plaintiff no.1. It was also denied that the land in dispute was acquired by the previous Mahants from their own funds and the same was made cultivable by spending a considerable amount. So, in that way, Mahants have been in possession of the land in dispute as owner and constructed Mandir. It was denied that Jamna Dass defendant was ever appointed as Mahant by a committee of villagers for managing the affairs of the Mandir. It was also denied that impugned judgment and decree suffered by defendant no.2 in favour of defendant no.1 is wrong or illegal in any way and the same does not create any right, title or interest in favour of the later. It was denied that Jamna Dass was not having any right, title or interest in the property in dispute and he was not competent to transfer his rights in favour of his Chela Raj Dass. RSA No.3175 of 2007(O&M) 5 3. All other averments made in the plaint were denied in toto. 4. Varius preliminary objections were also taken with regard to locus-standi of the plaintiffs to file and maintain the suit, cause of action, limitation and the suit being false and friviolous. On the pleadings of the parties, the following issues were framed by the trial Court:- “1. Whether the judgment and decree dated 21.3.1988 passed in civil suit no.177/88 titled Raj Dass Vs. Jamna Dass is illegal, null and void and not binding upon the rights of the plaintiff and other villagers obtained by fraud and misrepresentation?OPP 2. Whether mutation no.994 is also illegal and not binding on the right of the plaintiff on the ground as alleged in the plaint?OPD 3. Whether the suit of the plaintiff is not maintainable in the present form?OPD 4. Whether the suit of the plaintiff is time barred?OPD 5.Whether this court has got no jurisdiction to try and entertain the present suit?OPD 6. Relief” After hearing the learned counsel for the parties, I am of the opinion that this appeal is devoid of any merit. Plaintiffs had filed the suit for declaration that the judgment and decree dated 21.3.1988 were (in fact passed on 15.3.1988) passed in civil suit No.177 of 1988 were not binding on their rights. As per the revenue record i.e. copies of jamabandies for the year 1969-69, 1973-74, Mandir Thakur Ji Wala was shown as owner of the property in dispute. Jamna Dass Chela Lachman Dass is described to be in possession of the suit RSA No.3175 of 2007(O&M) 6 land. The impugned judgment and decree were, however, suffered by Jamna Dass Chela Lachman Dass Chela Hardev Dass in favour of Raj Dass Chela Jamna Dass Chela Lachman Dass qua the property in dispute. Mandir Thakur Ji Wala was not impleaded as a party in the suit filed by appellant Raj Dass against the appellant Jamna Dass. Apparently, appellant No.2, Lachman Dass, in order to extend favour to appellant No.1- Raj Dass, suffered a decree in his favour qua the property which was, in fact, owned by Mandir Thakur Ji Wala. Mutation was sanctioned in favour of the appellants on the basis of the decree. Thereafter, Raj Dass, appellant took a loan of Rs.1,41,000/- from the State Bank of India by mortgaging the land in dispute for a sum of Rs.1,09,800/-. Both the Courts below, after appreciating the evidence led by the parties on record, have given a finding of fact that Mandir Thakur Ji Wala was owner of the property in dispute. Learned counsel for the appellants has failed to rebut the said finding. Hence, the Courts below had rightly decreed the suit of the plantiffs. No substantial question of law arises in this regular second appeal which would warrant interference by this Court, Accordingly, this appeal is dismissed. (Sabina) Judge December 02, 2009 arya