R.S.A. No. 485 of 2009 (O&M) -1- IN THE PUNJAB AND HARYANA HIGH COURT AT CHANDIGARH R.S.A. No. 485 of 2009 (O&M) Date of Decision: 28.01.2009 Vijay Kumar & another .......... Appellants Versus Durga Ashram Charitable Trust (Regd.) Nanak Chand Dharamshala & others. ...... Respondents CORAM : HON'BLE MR. JUSTICE VINOD K. SHARMA Present: Mr. O.P. Hoshiarpuri, Advocate, for the appellants. **** VINOD K. SHARMA, J. (ORAL) This regular second appeal is directed against the judgment and decree dated 5.11.2008 passed by the learned lower appellate Court vide which suit filed by the plaintiff-respondents i.e. Durga Ashram Charitable Trust (Regd.) Nanak Chand Dharamshala seeking declaration that the sale deeds executed by defendants No. 3 & 4 in favour of defendants No. 1 & 2 were illegal, null and void and not binding on the rights of the plaintiff- respondents stands decreed. The learned trial Court dismissed the suit by recording a finding that the plaintiff failed to connect the property with that of Trust property. The judgment and decree of learned trial Court stands reversed by the learned lower appellate Court by recording the following findings :- R.S.A. No. 485 of 2009 (O&M) -2- “I have weighed the pros and cons of respective contention. Huge number of judicial pronouncements, admitted facts and the litigation inter-se plaintiff-trust and the purchasers as well as seller of trust property coax me to set aside a patently wrong and perverse judgement which is based on flimsy reflections of insignificant facts while sweeping aside the hard and settled legal as well as documentary evidence. Indisputedly, the original owner of the property in dispute was Nanak Chand. Again, it is an admitted fact that he formed trust in the year 1934. This trust deed is Ex.PW/4A on record. This trust property was meant for staying Mahatmas, Sadhus, Musafirs and for Baarat. The trustees could not conver the same to any other use and for Mandir, School, Pathshala etc. In order to meet its expenses. Shri Nanak Chand constructed eight shops in front of Dharamshala. These shops were given on rent to different persons. Trustees were to appoint a person to look after this Dharamshala. Manager was to be paid from rental income. Any balance there after was meant to be used for the repair of Dharamshala only. However, unfortunately, with the passage of time all trustees appointed under the Trust Deed dated 7.5.1934 expired. The trust property was left rudderless and hardless. Seeing this state of affairs one Kanshi Ram Jain filed a suit under Section 59 of the Indian Trust Act for the execution of trust by the court till the appointment of new trustees. The learned District Judge, Ferozepur appointed five trustees on 23.7.1975. These trustees were Bilas R.S.A. No. 485 of 2009 (O&M) -3- Chand Jain, who was adopted son of Nanak Chand, Vinod Kumar Jain, Jinesh Kumar Jain, Bhim Sain Jain and Kailash Chand Jain. Bilas Chand Jain has expired. Smt. Parkash Wati is widow of this Bilas Chand Jain; whereas, Navin Kumar is his son. Living Trustees started managing the affairs of the trust. They were recovering rent from the tenants. Defendant No. 5 to 13 are tenants of the trust. Since some of the tenants were not paying rent to the trust, ejectment applications have to be filed against them. One such application was filed by the trust against Rattan Lal Jain. It is amusing to see that this ejectment application was filed by Navin Kumar Jain claiming himself to be the trustee of plaintiff Durga Ashram Charitable Trust against Rattan Lal Jain i.e. Defendant No.13 here. It is interested to note here that this Navin Kumar Jain is one of the persons who sold trust property through his Muthtiar-i-am to defendants no.1 and 2. Rattan Lal Jain contested his petition. This petition was dismissed on the ground that Naivn Kumar Jain had no locus standi to file the present petition on behalf of trust Durga Ashram Charitable Trust. This order is Ex.P1 on record. At para no.9 of this order the learned Rent Controller specifically recorded a fact that the office trustee is not inheritable. On the death of a trustee another trustee has to be appointed by the District Judge. Thus, the Court held that Navin Kumar is neither trustee of the Durga Ashram Charitable Trust nor has been authorised to file ejectment application on behalf of the trust. Thereafter, Rattan Lal Jain, defendant no. R.S.A. No. 485 of 2009 (O&M) -4- 1.3 here and tenant of shop no.8 served a notice on the plaintiff trust for seeking its advice as to what to do since he has received summons from the court where Vijay Kumar and Smt. Asha Rani (It is pertinent to record that they are purchasers and defendants no. 1 and 2 here) are asking for rent on the strength of sale deeds dated 25.3.1994 and 29.3.1994 (which are bone of contention). Rattan Lal refused to oblige these purchasers who claimed themselves to be landlord on the strength of sale deeds in their favour. Their petition was dismissed. Furthermore, one Pt. Babu Ram and two others preferred a suit under section 92 CPC in respect of Public trust known as Durga Asharam Charitable trust property for removing the trustees i.e. Vinod Kumar, Bhim Sain, Kailash Chand, Parkash Wati alongwith Navin Kumar Jain, who were representing themselves as trustees of the trust as they were not managing affairs of the trust in the spirit of trust deed dated 7.5.1934. Further relief was sought that defendants be ordered to stop the running of Model School known as Arun Jyoti Model Sachool. Trustees, namely, Bhim Sain, Kailash Chander, Jinesh Kumar and Vinod Kumar Jain appeared in the said suit and suffered statement that they are trustees of Durga Ashram Charitable Trust. They are running the trust as per terms and conditions contained in trust deed dated 7.5.1934 and in future also they will run all the affairs as per terms of the trust deed. This statement suffered by them jointly is Ex.P-7 on record. On account of this statement the plaintiffs withdrew the said suit. The R.S.A. No. 485 of 2009 (O&M) -5- statement suffered by the plaintiffs is dated 25.8.1994 and the suit was dismissed as withdrawn accordingly. Besides that one Babu Ram Aggarwal alongwith Yadwinder Singh, Parkash Wati Jain and Surinder Kumar filed a suit under section 92 CPC against Durga Ashram Charitable trust through its trustees Navin Kumar and other four trustees for their removal on the ground that they were not managing affairs of the trust in a proper manner. The application for getting leave to institute this suit is Ex.P10. It is pertinent to record here that Parkash Wati Jain, who sold the property of the trust vide sale deeds, which are bone of contention, admitted in para no.4 of the plaint that Durga Ashram Charitable Trust is a registered Public Charitable trust which was created by Late Nanak Chand sonof Durga Parshad, who is father-in-law of defendant no.3 i.e. Smt. Parkash Wati and grand father of Navin Kumar Jain. It has again been admitted in this suit that in the year 1975 Shri O.P. Saini, the then learned District Judge Ferozepur appointed new trustees on the application moved by one Kanshi Ram as most of the trustees had died. It has been further averred that trustees appointed by the learned District Judge are not taking any interest in the management of the trust property and only Navin Kumar is managing the affairs of the trust, but he too is very negligent and careless about its management. Since Parkash Wati, who is daughter- in-law of the founder of the trust rather is interested in preservation of its upkeep and advancement, therefore, trustees are liable to be removed. R.S.A. No. 485 of 2009 (O&M) -6- However, this suit was dismissed under order 9 rule 8 CPC and this order is Ex.P12 on record. It is worth recording here that this Parkash Wati Jain took 'U' turn thereafter and alleged that the property which was in the hands of the trust was the personal property of her husband from whom he and her son inherited and refused to acknowledge a fact that her husband was appointed as trustee by the court of learned District Judge on 23.7.1975. Should she be believed? Before commenting further on her character it is pertinent to record subsequent litigation as well. Plaintiff trust filed an ejectment petition against Janak Raj Sikri tenant of Shop no. 5. Again, it was held that relationship of landlord and tenant exists between them. This judgment is Ex.P13 on record. Durga Ashram Charitable Trust then preferred an ejectment application against Vijay Kumar Sethi, who was tenant in shop no.4. It is pertinent to record here that this Vijay Kumar Sethi is the main who executed sale deeds on behalf of Smt.ParkashWati and Navin Kumar Jain, being their mukhtiar-i-am. He is defendant no.5 in the main suit. He took the objection in the said ejectment application that no relationship of landlord and tenant exists between them. Navin Kuma and Parkash Wati sold this property including this shop in favour of Vijay Kumar son of Raj Kumar and Asha Rani wife of Vijay Kumar through registered sale deed dated 25.3.1994 and 29.3.1994 and after execution of the said sale Vijay Kumar and his wife Asha Rani became landlord/owner of the property. Again, an issue was framed 'whether there exists R.S.A. No. 485 of 2009 (O&M) -7- relationship of landlord and tenant between them. The Rent Controller recorded finding in favour of Durga Ashram Charitable Trust holding that relationship of landlord and tenant exists between them. It is further pertinent to record that Parkash Wati appeared in this case as RW1 alleging that her father-in-law Nanak Chand was owner of the property in dispute and after his death his son Bilas Chand Jain became owner of the property in question. Her statement was totally disbelieved. This order is Ex.P15 on record. Most important part of this entire plethora of litigation is that when Durga Ashram Charitable Trust i.e. Plaintiff Trust preferred an ejectment petition against Karori Mal, their tenant, Vijay Kumar and Asha Rani preferred an application under order 1 rule 10 C.P.C. for getting themselves impleaded as party, since they had purchased the property. They were impleaded as party. They contested the ejectment application like anything. Again, a question arose whether relationship of landlord and tenant existed between the parties. Finding was recorded in Durga Ashram Charitable Trust's favour. Vijay Kumar and Asha Rani preferred appeal against the same. They were aggrieved of the findings returned by the learned Rent Controller on issue no.1 and 2 i.e. whether relationship of landlord and tenant existed between the trust and said Karori Mal (deceased) now represented through Smt.Krishna Devi. Their appeal was dismissed. All their pleas were negated. Durga Ashram Charitable Trust too preferred appeal against the judgment and decree dated R.S.A. No. 485 of 2009 (O&M) -8- 8.10.1999. Vijay Kumar Sethi son of Shri Ram Lal too preferred appeal against this judgement. Again, appeal preferred by Vijay Kumar Sethi was dismissed and that of Durga Ashram Charitable Trust was accepted. This judgement is Ex.P-19 on record. I must record it at this juncture that when Vijay Kumar and Asha Rani failed in their attempt to be declared as landlord of the property they filed appeal against the order of the Appellate Court in the Hon'ble High Court. This case was report in PLR 2002 (3), 749. Their appeal was dismissed. They were never accepted to be landlord at any point of time. Against this factual and legal back ground this plaintiff/appellant-trust has come up in appeal against the findings of the learned trial court which dared to ignore all this. It is pertinent to record that Smt.Parkash Wati Jain and Navin Kumar Jain have never been accepted to be owners of the property at any point of time in any litigation that took place between plaintiff/appellant-trust and its tenants. Navin Kumar Jain himself tried to litigate claiming himself as one of the trustees of the plaintiff/appellant-trust, but his contention was negated and he was thrown out from the array of trustees. Smt.Parkash Wati Jain appeared as a witness in favour of those tenants who could have the capacity to oust the plaintiff/appellant-trust from its property. Her contentions were negated at all points. How can one believe Smt. Parkash Wati Jain when she herself alongwith few others filed a suit under section 92 CPC alleging facts as detailed by R.S.A. No. 485 of 2009 (O&M) -9- the plaintiff/appellant-trust and thereafter taking 'U' turn that the property does not belong to her father- in-law exclusively from whom her husband inherited and on his death she and her son inherited. Vijay Kumar son of Ram Lal, who is mukhtiar-i-am of Smt. Parkash Wati and Navin Kumar Jain too suffered losses in litigation at all point, but dares to sell property of the trust at the behest of Parkash Wati and Navin Kumar Jain on the strength of mukhtiar- nama in favour of his relation i.e. Vijay Kumar and Asha Rani. Contention of the learned counsel representing the purchasers that property in question is different one has been first time raised in appeal. At no point of time in any litigation what- so-ever which is huge in number any one disputed either identity or unity of the property. How it occurred to the counsel for the purchasers, is beyond imagination. Had it been the situation like this it would have been asserted by Smt. Parkash Wati and Navin Kumar Jain that the property sold by them is different property from the trust property which was given by Nanak Chand Jain to Trust created by him. On the other hand they have been contesting hotly and with full vehemence that property in question belong to them and they have rightly sold the same to Vijay Kumar and Asha Rani. Bazar Loharan Wala and Bazar Krishan Sudama are not two different Bazars, rather continuity of the one. Had it been so, the tenants as well as self proclaimed owners would have asserted so. Trust deed dated 7.5.1934 has conferred title of ownership on Durga Ashram Charitable Trust. Navin Kumar R.S.A. No. 485 of 2009 (O&M) -10- Jain neither was trustee nor had any right at any point of time to claim himself to be a trustee. Five trustees were appointed by the leaned District Judge on 23.7.1975. His father Bilas Chand was appointed as trustee. He has expired. His trustship could not be inherited. Therefore, neither Parkash Wati nor Navin Kumar had any interest in the property which they sold through Mukhtiar-i-am Vijay Kumar. Since they had no right or title in the property in dispute, they could not convey any title to Viay Kumar and Asha Rani. Sale deeds on the face of it are nothing but the result of fraud played upon by Smt. Parkash wati Jain and Navin Kumar Jain through Vijay Kumar upon the purchaser i.e. Vijay Kumar and Asha Rani. I must record that it is duty of the trustees to safeguard its interest. Wrongful claim and attempt to misappropriate trust property are required to be shunned and discouraged. Trustees of the plaintiff trust must act vigilantly to preserve any usurpation or encroachment. A school is certainly there but as per letter and spirit of the trust deed it is running contrary to the same. Why the trustees are silent and have not acted against the school is intriginning. They should act without any hesitation and fulfill their social, religious and legal responsibility. So far as the impugned judgment is concerned, it is suffice to say that it is totally based on flimsy reasoning, conjectures, surmises and ocular versions which have no relevancy against judicial pronouncements qua the matter in issue. R.S.A. No. 485 of 2009 (O&M) -11- Mr. O.P. Hoshiarpuri, learned counsel for the appellants contends that the judgment and decree passed by the learned lower appellate Court cannot be sustained in view of the fact that it was vendors who had been maintaining and looking after the property in dispute right from inception of the Trust deed. The contention was that the sale by ostensible owner could not be challenged by the Trust as the appellants were bona fide purchasers for consideration. It is also the contention of the leaned counsel for the appellant that mere suit for declaration was not competent and, therefore, the decree of the learned lower appellate Court is, thus, perverse. On the contention raised above, it is stated by the learned counsel for the appellants that the substantial questions of law arise for consideration by this Court :- 1. Whether the Trust which was merely a paper transaction could challenge the sale deed executed by defendants No. 3 & 4 in favour of the appellants who were bona fide purchasers for consideration ? 2. Whether the mere suit for declaration without seeking consequential relief of possession was competent ? On consideration of the matter, I find no force in the contention raised by the learned counsel for the appellants. The finding of fact recorded by the learned lower appellate Court, as reproduced above, would show that the Trust was in possession of the property and numerous attempts of defendants No.3 & 4 to claim ownership of the suit property were rejected R.S.A. No. 485 of 2009 (O&M) -12- by the Court in number of suits/ rent petitions. The appellants were also party to the previous litigation and, therefore, it could not be said that they were bona fide purchasers for consideration or the Trust at any time allowed defendants No.3 & 4 to project themselves as ostensible owners in possession of the property in dispute. The substantial questions of law, thus, as framed does not arise for consideration by this Court and in any event the substantial question so framed deserves to be answered against defendants No.1 & 2. The second substantial question of law also deserves to be noticed to be rejected. In the previous litigation it was proved that it was the Trust which was owner in possession of the property in dispute, therefore, suit for declaration declaring the sale deed to be null and void and not binding on the rights of the plaintiffs was, thus, maintainable. No ground for interference with the well reasoned judgment of the learned lower appellate Court is made out. No merit. Dismissed. 28.01.2009 (Vinod K.Sharma) 'sp' Judge