Regular Second Appeal No.185 of 1981 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH (1) Regular Second Appeal No.185 of 1981 Date of Order: 6 th January, 2009 Maru Dass ....Appellant Versus Kanhar Dass and others. ..Respondents (2) Regular Second Appeal No.186 of 1981 Date of Order: 6th January, 2009 Kanhar Dass ....Appellant Versus Maru Dass and others. ..Respondents (3) Cross Objections No.21-C of 1983 in R.S.A.No.185 of 1981. Maru Dass ...Appellant Versus Kanhar Dass and others ...Respondents CORAM: HON'BLE MR. JUSTICE RAJIVE BHALLA Present: Mr.Jaswant Jain,Advocate for the appellant. Mr. S.K.Rana, Advocate for respondent No.1. RAJIVE BHALLA, J (Oral). This judgment shall dispose of Regular Second Appeal Nos.185, 186 of 1981 and Cross Objections No.21-C of 1983 in RSA No.185 of 1981, as they arise from a common judgment and require adjudication of the same set of facts and the same question of law. Regular Second Appeal No.185 of 1981 -2- Mahant Maru Dass, the appellant in RSA No.185 of 1981 impugns the judgment and decree, passed by the Additional District Judge, Narnaul, insofar as it has been held that management and control of land measuring 29 bighas and 5 biswas, situated, in village Rambas, shall vest in the Managing Committee, appointed by Mahant Narsingh Dass, by his will. Mahant Kanhar Dass, the appellant in RSA No.186 of 1981, on the other hand, challenges the judgments and decrees, passed by the Senior Sub Judge, Narnaul dated 02.02.1976 and the Additional District Judge, Narnaul, dated 30.08.1980, rejecting his claim as Mahant of the temple, in village Kishan Pura and as a result rejecting his claim to manage and control the land in village Rambas. One Nar Singh Dass Bairagi was the Mahant of a temple Shri Raghu Nath Ji Maharaj, situated at village Tibba Basai, Tehsil Khetri, District Jhunjhunu, Rajasthan. The temple, in addition to owing land in Rajasthan, owns land in Haryana. After the demise of Mahant Nar Singh Dass, mutations of inheritance, with respect to temple properties were sanctioned in the name of one Gordhan Dass-respondent no.1. The congregation of sadhus, however, appointed Maru Dass as Mahant. Gordhan Dass, filed a suit before District Judge, Jhunjhunu, challenging the appointment of Mahant Maru Dass by alleging that he was the senior Chela of the deceased Mahant and, therefore, entitled to succeed to the office of Mahant. Mahant Maru Dass, Mahant Kanhar Dass and members of the managing committee were arrayed as defendants in the suit. Mahant Maru Dass and Mahant Kanhar Dass filed a joint written statement denying the claim of Gordhan Dass. The members of the managing committee opposed the claim of Gordhan Dass and supported the claim of Mahant Maru Dass. It would be necessary to mention that neither Kanhar Dass nor members of the managing committee put forth any claim to manage any Regular Second Appeal No.185 of 1981 -3- temple or properties attached to any temple whether situated in Rajasthan or in Haryana. The District Judge, Jhunjhunu vide judgment dated 23.12.1961 held that Mahant Maru Dass was the senior Chela of Mahant Narsingh Dass and was validly appointed as Mahant, by the congregation of sadhus. Gordhan Dass filed an appeal before the Rajasthan High Court., which was eventually dismissed, setting at rest the controversy with respect to the office of Mahant and the right to manage temple properties. During the pendency of the above referred suit mutations of ownership were sanctioned in the names of Gordhan Dass and Kanhar Dass with respect to temple properties situated in Haryana, compelling Mahant Maru Dass to file a suit before the Senior Sub Judge, Narnaul praying for a declaration that the mutations sanctioned in the names of Gordhan Dass and Kanhar Dass are null and void. As a consequential relief, a prayer for possession of the suit property was also made. Gordhan Dass and Mahant Kanhar Dass were arrayed as defendants No.1 and 2 respectively, whereas members of the Managing Committee were arrayed as defendants no.3 to 8. The other defendants were vendees of temple land from Gordhan Dass. Gordhan Dass filed a written statement, denying the averments in the plaint and once again put forth his claim as the senior Chela of deceased Mahant Nar Singh Dass. Mahant Kanhar Dass, on the other hand, pleaded that he was the Mahant of the temple at village Kishanpura and as the suit decreed by the District Judge, Jhunjhunu did not include the property attached to this temple, he alone was entitled to manage the property attached to this temple . The Trustees filed a written statement, admitting the claim of Mahant Maru Dass and disavowed their status and role as trustees. On the basis of the pleadings, the learned trial court framed the following issues:- Regular Second Appeal No.185 of 1981 -4- 1. “Whether the plaintiff is the duly appointed Chela of Mahant Narsingh Dass deceased?OPP 2. whether the proper court fee has been paid?OPP 3. In case issue no.1 is proved in the affirmative,whether the plaintiff is entitled to maintenance only out of the property left by Mahant Nar Singh Dass deceased? 4. Whether the mutations mentioned in para No.4 of the plaint are ineffectual qua the rights of the plaintiff and if so, its effect?OPP 5. Whether the suit is not competent without obtaining Probate certificate?OPD(objected to) 6. Whether the judgment of the District Judge, Jhunjhunu, dated 23.12.1961 operated as res-judicata and if so, its effect?OPP 7. Whether the provisions of Section 10 CPC apply to the case and if so, its effect?OPD 8. whether the defendants No.12 to 21 are bona fide transferees and if so, its effect?OPD. 9. Relief.” The learned trial Court after considering the pleadings, the evidence adduced and the arguments addressed decreed the suit in its entirety by holding that Mahant Maru Dass , the senior Chela of Nar Singh Dass was validly appointed as the Mahant by the congregation of sadhus. The claim put forth by Gordhan Dass was once again rejected. The trial Court relied upon the judgment passed by the District Judge, Jhunjhunu, which had in the meanwhile been affirmed by the Rajasthan High Court. The claim put forth by Mahant Kanhar Dass, was rejected as he failed to establish his right as the Mahant of the temple at village Kishanpura, and even otherwise as the dispute stood settled by judgment pronounced by Regular Second Appeal No.185 of 1981 -5- the District Judge, Jhunjhunu. The oral evidence adduced by Mahant Kanhar Dass was rejected as it was noticed that in his cross examination he had admitted that the Mahants of the Temple at Tibba Bassai had control over this temple. As a result, the mutations sanctioned in favour of Gordhan Dass and Mahant Kanhar Dass were declared to be ineffectual qua the rights of Mahant Maru Dass. It would also be necessary to mention here that the trustees did not lead any evidence. Gordhan Dass and Mahant Kanhar Dass filed separate appeals challenging the correctness of the aforementioned judgment. The Managing Committee, however did not file any appeal. During the pendency of the appeal, the first appellate court, vide order dated 05.06.1980 allowed an application for additional evidence, filed by Mahant Kanhar Dass, so as to place on record the registered Will executed by the deceased Mahant. A copy of the Will was led into evidence as Ex. A1. In rebuttal, Mahant Maru Dass was allowed to produce the plaint of the suit filed by Gordhan Dass before the District Judge, Jhunjhunu and a copy of the joint written statement filed by Maru Dass and Kanhar Dass as Ex. R1 and R2 respectively. The learned Additional District Judge, after considering the dispute in its entirety dismissed the appeals filed by Gordhan Dass and Kanhar Dass. However, by holding that as the admitted Will Ex-A1 clearly stipulates that the Managing Committee would manage the affairs of the temple at Kishanpura, it was held that the management and control of the land in village Rambas would vest in the Managing Committee, comprised of defendants no. 3 to 9. The Additional District Judge, therefore, upheld the claim of Maru Dass to possess and manage all temples and properties attached thereto except 29 bighas and 6 biswas of land situated in village Rambas. Before proceeding to decide the appeals and the cross objection Regular Second Appeal No.185 of 1981 -6- it would be necessary to mention here that Gordhan Dass filed RSA No.2599 of 1980 titled as Gordhan Dass v. Maru Dass and others, challenging the judgment passed by the Additional District Judge. His appeal was dismissed on 31.03.1981 setting at rest the controversy with respect to the office of Mahant and the suit properties, except the property measuring 29 bighas 6 biswas, situated in village Rambas regarding which Mahant Maru Dass has filed RSA No.185 of 1981. Counsel for Mahant Maru Dass, the appellant in RSA No.185 of 1981 ( Maru Dass vs. Kanhar Dass and others), submits that the Additional District Judge had no jurisdiction to hold that the land situated in village Rambas vests in the Managing Committee. It is submitted that as the entire dispute has been finally settled by the Rajasthan High court by affirming the judgment passed by the District Judge, Jhunjhunu all properties attached to these temples would necessarily vest for the purpose of management and control in the appellant. It is pointed out that even the first appellate court has accepted that the temple at village Kishanpura was subject matter of the dispute before the District Judge, Jhunjhunu and, therefore, could not have held that the land in dispute would vest in the managing committee. It is further submitted that members of the Managing Committee, who are arrayed as defendants no.3 to 8 in the suit, filed a written statement accepting the claim of the appellant, in its entirety not only in the present proceedings but also before the District Judge Jhunjunu. The first appellate court, however, disregarded the averments in written statement and therefore, fell into error while holding that the managing committee would manage the affairs of the temple at village Kishanpur and its properties at village Rambas. It is further submitted that the Will Ex.A1 was considered by the District Judge, Jhunjhunu, and despite the will it was held that the appellant is the validly elected Mahant and therefore entitled to manage the affairs of the temple and its Regular Second Appeal No.185 of 1981 -7- properties. As regards the appeal filed by Kanhar Dass, it is submitted that the first appellate court noticed, while rejecting the claim of Mahant Kanhar Dass, that he was a party to the suit before the District Judge, Jhunjhunu and filed a written statement with the appellant and did not raise any plea that he is the Mahant of the temple at Kishanpura. It is further submitted that neither in his written statement nor in his deposition in the present proceedings, has Kanhar Dass raised any plea disavowing the written statement filed before the District Judge, Jhunjhunu. In fact he has specifically admitted that he filed a written statement before the District Judge,Jhunjhunu. It is submitted that Mahant Kanhar Dass while deposing in the present proceedings has admitted that the temple at village Kishanpura is under the management and control of the Mahant of the temple at Tibba Basai and therefore, the first appellate court rightly rejected his claim. It is further submitted that as the managing committee did not file any appeal against the judgment of the trial court or against the judgment of the District Judge, Jhunjhunu, the first appellate court had no jurisdiction to hold in their favour. It is, therefore, prayed that the judgment and decree passed by the Additional District Judge, Narnaul, in so far as it holds that the Managing Committee would be entitled to manage and control the land measuring 29 bighas 6 biswas, situated in village Rambas, is perverse, illegal and disclose a failure to appraise material evidence and pleadings. The following substantial questions of law arise for consideration:- 1. Whether the Additional District Judge, Narnaul could have ignored the judgment of the District Judge, Jhunjhunu, duly affirmed by the High Court of Rajasthan to hold that the property at village Rambas would vest in the Managing Regular Second Appeal No.185 of 1981 -8- Committee, on the basis of Will Ex.A-1? 2. Whether the first appellate court could have held that the property situated in village Rambas would devolve to the managing committee, despite a written statement filed by the managing committee admitting the claim of Mahant Maru Dass? Counsel for Mahant Kanhar Dass, the respondent in RSA No.185 of 1981 and the appellant in RSA No.186 of 1981 submits that Mahant Kanhar Dass is the Mahant of Mandir Kishanpura and is, therefore, entitled to manage the property attached to this temple. As the learned Additional District Judge has recorded a finding that the judgment and decree dated 23.12.1961, passed by the District Judge, Jhunjhunu does not bind him,the first appellate court should have held that management and control of Mandir Kishanpura along with its land vests in Mahant Kanhar Dass. It is submitted that the appellants have failed to produce any evidence that would even remotely suggest that this land has any connection with the Mandir at village Tibba Basai and as a result with its Mahant. It is further argued that as the trustees have not assumed their role as Trustees and have in fact accepted the claim of Maru Dass, the Additional District Judge had no jurisdiction to hold that the land in dispute vests in the Managing Committee and not in Mahant Kanhar Dass. No one has put in appearance on behalf of the cross objectors and neither are the cross objectors present. I have heard counsel for the parties and perused the impugned judgments. Before proceeding to decide the claim of Mahant Maru Dass, it would be appropriate to decide the claim put forth by Mahant Kanhar Dass in RSA No.186 of 1981. Mahant Kanhar Dass claims to be the Mahant of Regular Second Appeal No.185 of 1981 -9- Mandir Kishanpura and as a result claims a right to manage and control its property in village Rambas. He also asserts that this Mandir has no connection with Mandir of Ranghu Nath Ji in village Tibba Basai and therefore the suit decided by the District Judge, Jhunjhunu and the Rajasthan High Court does not affect his rights as a Mahant. The above submissions, in my considered opinion are misplaced as they disregard the pleadings, the evidence on record, the subject matter of the suit filed in Rajasthan and the admissions made by Mahant Kanhar Dass in his deposition before the trial Court . The trial Court has held that it is clear from the second page of the judgment of the District Judge, Jhunjhunu Ex.P1 that management of several small temples (including the temple claimed by Mahant Kanhar Dass) vest in the Mahant of the temple situated in Tibba Basai. The learned trial Court also held that Mahant Kanhar Dass, though impleaded as a defendant in the suit filed before the District Judge, Jhunjhunu did not raise any plea that he is the Mahant of the temple at village Kishanpura but instead supported the case of Mahant Maru Dass, by filing a joint written statement. The trial Court based its conclusion primarily on the judgment and decree passed by the District Judge, Jhunjhunu dated 23.12.1961 Ex.P1, duly affirmed by the High Court of Rajasthan. The trial court also noticed that Mahant Kanhar Dass, who appeared as his own witness as DW8, admitted that the mandir at Kishanpura is managed by the Mahants of the temple at village Tibba Basai, in essence admitting the claim of Mahant Maru Dass. It was also held that he had failed to produce any evidence with respect to his appointment as the Mahant apart from his own oral deposition and the oral deposition of few other witnesses. His admission that the Mahant of the temple at Tibba Basai has control over the temple at village Kishanpura, and his failure to put forth any claim as Mahant before the courts in Rajasthan are sufficient to reject his claim. The appellate court Regular Second Appeal No.185 of 1981 -10- upheld the aforementioned findings and rejected the claim put forth by Kanhar Dass by holding that he had failed to adduce any evidence with respect to his appointment as a Mahant. I find no reason whether in law or in fact to differ with the concurrent findings of fact recorded by the courts below as they rightly held that Kanhar Dass had no independent control of the Mandir at village Kishanpura. It would now be appropriate to consider the appeal filed by Mahant Maru Dass challenging the, first appellate court's judgment and decree that management and control of the property situated in village Rambas would vest in the managing committee. Admittedly, the District Judge, Jhunjhunu, has held that Maru Dass, appellant , is the senior Chela of Nar Singh Dass deceased and the legally appointed Mahant of Mandir Thakur Dwara at village Tibba Basai. It is not denied that a number of small temples ,including the temple in dispute and their properties are managed by the Mahant of Mandir Thakur Dwara at village Tibba Basai. The suit before the District Judge, Jhunjhunu, in addition to resolving the dispute with respect to the office of the Mahant, also settled the rights of the parties to manage and control temples attached to Mandir Thakur Dwara at village Tibba Basai and their properties. The District Judge, Jhunjhunu in his judgment Ex.P1, clearly records that there are several small temples in various villages including the temple in village Kishanpura. It is, therefore, apparent that apart from the right to be appointed as Mahant,the right to manage the temples attached to Mandir Thakur Dwara at village Tibba Basai along with their properties was also held in favour of the appellant Maru Dass. It would also be necessary to mention here that Gordhan Dass, the plaintiff, before the District Judge, Jhunjhunu claimed a right to be appointed as Mahant and a right to manage and control the temples and properties attached to these temples. The District Judge, Jhunjhunu rejected his claim and upheld the claim of Maru Dass. The property in Regular Second Appeal No.185 of 1981 -11- dispute was, therefore, subject matter of the suit decided by the District Judge, Jhunjhunu. As noticed in the earlier part of the judgment, Mahant Maru Dass, Kanhar Dass and the managing committee were arrayed as defendants in the suit filed at Jhunjhunu. Kanhar Dass and the managing committee supported the right of Mahant Maru Dass, as Mahant. The members of the managing committee, in fact, failed to come forward, whether in proceedings before the Courts at Rajasthan or in the present suit to assert their right to manage the temples or their properties. The trustees have not come forward to accept the trust or to assert their rights as trustees or enter upon the management and control of the temple properties and have in fact accepted the claim put forth by Maru Dass. The first appellate Court disregarded the judgment of the courts of Rajasthan, the averments in the written statement accepting the claim of Mahant Maru Dass and disavowing their rights as trustees. The Additional District Judge ignored these significant and important facts and erroneously proceeded to partly reverse the judgment of the trial Court. The trustees were parties before the courts in Rajasthan, before the trial Court, the First Appellate Court and are parties before this Court. At no stage of the proceedings, have they put forth any claim for management and control of the temples or its properties. It would however, be necessary to mention here that during the pendency of this appeal, a few of the trustees have filed cross-objections claiming a right to manage the properties of the temple but true to form neither the trustees nor any counsel has put in appearance on their behalf to press their claim. Even otherwise, as the trustees have filed a written statement accepting the rights of Mahant Maru Dass to manage the properties of the temple, they would not have any right to put forth a claim contrary to the averments made in their written statement. All rights to the office of Mahant and as a consequence all rights to manage the temples Regular Second Appeal No.185 of 1981 -12- and properties attached to the Mandir Thakur Dwara at village Tibba Basai have been settled by the judgment Ex.P-1. As regards the Will Ex.A1, it would be necessary to mention that it was considered by District Judge, Jhunjhunu and upheld. Despite this ,the learned District Judge, Jhunjhunu proceeded to hold in favour of the appellant Maru Dass. These findings were affirmed by the Rajasthan High Court. The first appellate Court, therefore, had no jurisdiction to ignore Ex-P-1 and hold that management and control of the temple at Kishanpura and its properties in village Rambas vest in the managing committee. A court decides issues on the basis of pleadings and evidence and cannot disregard admissions, inter parties judgements and proceed to decide a case on its own perception of the rights of parties. The learned first appellate court had no jurisdiction to ignore Ex. P-1 and proceed to hold that the managing committee would manage the affairs of the temple at village Kishanpura and the land in village Tibba Basai. The questions of law are therefore, answered by holding that the first appellate court ignored the subject matter of the suit filed in Rajasthan, the judgment and decree passed by the District Judge, Jhunjhunu, the written statement filed by the trustees accepting the claim of Mahant Maru Dass in this suit and, therefore, committed an error of jurisdiction in holding that management and control of the land in village Rambas would vest with the managing committee. In view of what has been stated herein above, RSA No.185 of 1981 is allowed and Cross objections in RSA No.185 of 1981 & RSA No.186 of 1981 are dismissed. The judgment and decree passed by the appellate court partly dismissing the suit is set aside and that of trial Court is restored. No order as to costs. January 6th, 2008 (RAJIVE BHALLA) nt JUDGE