RSA No.3541 of 1985 -1- ***** IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.3541 of 1985 Date of decision:18.05.2011. Shri Ganga Mandir Sabha ...Appellant Versus Bhuri Devi and another ...Respondents CORAM: HON’BLE MR. JUSTICE RAKESH KUMAR JAIN Present: Ms. Shilpa Malhotra, Advocate, for the appellant. None for the respondents. ***** RAKESH KUMAR JAIN, J. This appeal has been filed by defendant No.2 against judgment and decree of both the Courts below by which suit filed by the plaintiff for mandatory injunction for delivery of possession of the portion shown red in site plan Ex.P6 and two rooms marked as ABCD and EFGH in the site plan was dismissed, but regarding remaining property of the temple it was held that the plaintiff has proved herself to be Shebait of the temple and need not ask for possession of the remaining temple property as all the remaining property is linked with her right of Shebaitship to manage the temple. In brief, the case set up by the plaintiff is that her husband Pokhar Ram was the Shebait of Ganga Temple and was managing the affairs of worship of the temple. He died in the year 1944-45 and since then the plaintiff assisted her husband's brother Prabhu Dayal in the management of this temple as Shebait. Prabhu Dayal also died in the year 1964. It is further alleged that she had moved to Bathinda where she had immoveable property of her husband's family, but kept two rooms marked as ABCD and EFGH in the site RSA No.3541 of 1985 -2- ***** plan, with her as she used to stay in the said rooms of the temple to supervise temple affairs and performance of religious festivals such as Janamashtami, Annkoot and Dewali etc. Pt. Charanji Lal was appointed as Poojari of this temple by the plaintiff in the year 1948 and thereafter defendant No.1 Mool Chand replaced him who was also given residential accommodation. An agreement was executed between the plaintiff and defendant No.1 on 24.12.1962 and after the death of Prabhu Dayal, the plaintiff started relying upon more on defendant No.1 for the management of the temple and her visits to Ferozepur became less frequent. It is further alleged that defendant No.1 entertained the evil intention to deprive the plaintiff of her rights as Shebait of the temple because when she came to Ferozepur on 12.07.1980 she found that defendant No.1 and his son had removed the locks of the rooms kept by the plaintiff for her residence and also removed her articles therefrom. The said rooms were alleged to be in possession of defendant No.1 who is acting in connivance with the local Hindus constituted body called Sri Ganga Mandir Sabha whose Vice President was one Des Raj and Shri Jagdish Lal Batta was stated to be its President. They had filed a suit against her which was pending when the present suit was filed. It was alleged that formation of the body of the said management is illegal and the plaintiff is entitled to manage the affairs of the temple as its Shebait. With these pleadings, the suit was filed. In reply, it was alleged that the temple is a public religious and charitable endowment and has remained under the management and control of Sanatnist Hindu Mohalledars and Hindus of the locality from times immemorial. It was denied that the ancestors of Pokhar Ram had been managing this temple as Shebaits. They had to file the earlier suit as the plaintiff wanted to sell the temple property. It was also denied that Pokhar Ram, Prabhu Dayal or even the plaintiff had resided in any portion of the temple. It was denied that Pt. Charanjit Lal and Mool Chand were appointed as Poojaries of the said temple by the plaintiff, rather it was alleged that the Mohalledars used to appoint the Poojari for this temple. The existence of the agreement dated 24.12.1962 was denied. The plaintiff filed replication and denied the allegations made in the written statement and reiterated that of the plaint. When RSA No.3541 of 1985 -3- ***** the pleadings were over, the learned Trial Court framed the following issues on 16.11.1981: - “1. Whether Pokhar Ram was the husband of the plaintiff and thereafter, the plaintiff is shebait of the mandir? If so, its effect?OPP. 2. Whether the temple in dispute is the private property of the plaintiff?OPP. 3. Whether the suit is not maintainable?OPP. 4. Whether the suit is liable to be stayed in view of the preliminary objection No.2 of written statement?OPD. 5. Whether the plaintiff has no locus standi to file the suit?OPD. 6. Whether the plaintiff is entitled to mandatory injunction as prayed for?OPP. 7. Relief.” The learned Trial Court decided issue No.2 in the beginning and it was held that the temple is a public religious body. While deciding issue No.1, it was held that the plaintiff has proved herself to be the Shebait of this temple and is entitled to free access to the temple for the purpose of daily and periodical worship and she, as a Shebait, has right to manage the temple affairs. Ultimately, after the detailed discussion on the other issues as well, the suit was partly decreed as the relief of mandatory injunction of delivering of possession of two rooms was declined but she was held to be Shebait for the purpose of management of the temple affairs. Aggrieved against the judgment and decree of the learned Trial Court, the plaintiff filed Civil Appeal No.49/23 of 1983-84 titled as `Bhuri Devi Vs. Mool Chand and another' and defendant No.2 filed Civil Appeal No.49 of 1983 titled as `Shri Ganga Mandir Sabha Vs. Bhuri Devi and another' which were dismissed together by the learned First Appellate Court by a common judgment. The defendant No.2 only came up in second appeal in which learned counsel for the appellant has submitted that once it has been held by the RSA No.3541 of 1985 -4- ***** learned Courts below that the temple is not a private property of the plaintiff, the plaintiff should not have been allowed to manage its affairs as a Shebait. It is pertinent to mention here that learned counsel for the appellant has not framed and placed on record any substantial question of law in this appeal in terms of Section 100 of the Code of Civil Procedure, 1908 [for short “CPC”]. However, it has been held by the Supreme Court in the case of Profulla Chorone Requitte and others V. Satya Choron Requitte, AIR 1979 Supreme Court 1682 that Shebaitship being property devolves like any other species of heritable property. The relevant observation of the Supreme Court are as under: - “20. Before dealing with these contentions, it will be appropriate to have a clear idea of the concept, the legal character and incidents of Shebaitship. Property dedicated to an idol vests in it an ideal sense only; ex necessitas, the possession and management has to be entrusted to some human agent. Such an agent of the idol is known as Shebait in Northern India. The legal character of a Shebait cannot be defined with precision and exactitude. Broadly described, he is the human ministrant and custodian of the idol, its earthly spokesman, its authorised representative entitled to deal with all its temporal affairs and to manage its property. As regards the administration of the debuttar, his position is analogous to that of a Trustee; yet he is not precisely in the position of a Trustee in the English sense, because under Hindu Law, property absolute dedicated to an idol, vests in the idol, and not in the Shebait. Although the debutter never vests in the Shebait, yet, peculiarly enough, almost in every case, the Shebait has a right to a part of the usufruct, the mode of enjoyment, and the amount of the usufruct RSA No.3541 of 1985 -5- ***** depending again on usage and custom, if not devised by the founder. 21. As regards the service of the temple and the duties that appertain to it, he is rather in the position of the holder of an office; but even so, it will not be quite correct to describe Shebaitship as a mere office. “Office and property are both blended in the conception of Shebaitship”. Apart from the obligations with the endowment the Shebait has a personal interest in the endowed property. He has, to some extent, the rights of a limited owner. 22. Shebaitship being property, it devolves like any other species of heritable property. If follows that, where the founder does not dispose of the shebaiti rights in the endowment created by him, the Shebaitship devolves on the heirs of the founder according to Hindu Law, if no usage or custom of a different nature is shown to exist. 23. Then, there is a distinction between a public and private debutter. In a public debutter or endowment, the dedication is for the use or benefit of the public. But a private endowment, when property is set apart for the worship of a family idol, the public are not interested. The present case is one of a private debutter. The distinction is important, because the results logically following therefrom have been given effect by Courts differently.” The learned First Appellate Court, while discarding the claim of defendant No.2, has categorically observed as under: - “According to Bhuri Devi, Pokhar Ram had been arranging pooja of the deities in the temple since times immemorial. He died in the year 1944-45 and RSA No.3541 of 1985 -6- ***** she had been assisting her husband's brother Prabhu Dayal in the management of the temple as Shebait. Besides the oral evidence, Bhuri Devi has placed on record agreement Ex.P1, execution of which has been duly proved. The document was executed by Mool Chand defendant No.1 who has not dared to step into the witness box to deny its execution. Mool Chand along with defendant No.2 filed a common written statement denying his appointment as poojari by the plaintiff though he had admitted the factum of having been appointed as poojari in the said temple by the plaintiff in the agreement Ex.P1. There is another document Ex.P2 viz. Certified copy of judgment dated May 5, 1964 in case Thakar Dharaminder Singh vs. Prabhu Dayal regarding the tenanted premises of the temple wherein the Appellate Authority, in the appeal against the order of the Rent Controller, Ferozepur, ordering eviction of the tenant. Mool Chand defendant No.1 was examined in that case as RW1 and he had unequivocally admitted himself to be the poojari having been appointed by Bhuri Devi. It was also admitted by him that he was an employee of Bhuri Devi. The admission made by defendant Mool Chand which had not been retracted by him in the instant case goes a long way to show that Bhuri Devi had been managing the affairs of the temple and Mool Chand was appointed as Poojari by her in the said temple. As against this evidence, the Sabha has not led any cogent and convincing evidence to show that sanatnist Hindu mohalledars and Hindus of the locality have been managing the temple since times immemorial. The oral evidence led by the Sabha does RSA No.3541 of 1985 -7- ***** not inspire any confidence and the same has been rightly discarded by the learned Trial Court.” In view of the above discussion and the fact that the concurrent finding has been recorded by both the Courts below on appreciation of evidence, I do not find any merit in the present appeal nor do I find any question of law much-less substantial involved therein. Hence, the present appeal is hereby dismissed, however, without any order as to costs. May 18, 2011. (RAKESH KUMAR JAIN) vinod* JUDGE