IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 400/2010 Reserved on: 15.12.2010 Decided on:5.1. 2011 ________________________________________________ Charan Dass and another. …Appellants. Versus Devta Thakur Gopalji Sarsai and others … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 No. For the appellants : Mr. S.K. Khanna, Sr. Advocate with Mr. Avinash Jaryal, Advocate For the Respondents: Mr. Jagan Nath, Advocate for respondent No.2. Mr. Anand Sharma, Advocate for respondent No.4. Mr. Bimal Gupta, Advocate for respondents No. 5 and 6. ________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 13.5.2010 passed by the learned Additional District Judge, Fast Track Court, Kullu in Civil Appeal No.13 of 2009. 2. Material facts necessary for the adjudication of this Regular Second Appeal are that respondent-plaintiff (hereinafter 1 Whether reporters of the local papers may be allowed to see the judgment? No 2 referred to as ‘plaintiff’ for convenience sake) sought declaration to the effect that the plaintiff being deity is the owner in possession of the suit land measuring 0-40-59 hectares bearing Khasra Nos. 511/1, 584, 585 and 772 (previous Khasra Nos. 4530 and 4397) comprised in Khata/Khatauni No. 545/764, as recorded in the copy of jamabandi for the year 2003-04, Up- Muhal Ranghri, Tehsil and District Kullu and mutation No. 4043 dated 6.8.1984 has been wrongly attested and sanctioned. Appellants-defendants, who were arrayed as defendants No.3 and 4 in original suit filed separate written statement. Appellant- defendant Charan Dass took preliminarily objection regarding lack of maintainability, locus standi and that the suit was collusive between Surinder Kumar and defendant No.2 (Smt. Maina Devi). It was claimed that he was the personal deity of one family of village Sarsai. It was also asserted that Surinder Kumar was having no authority to institute the suit. The Pujaris used to perform Puja and they used to pay donation to Devta. This fact is also recorded in Waz-ib-ul-arz of Phati and Kothi Naggar. The mutation was rightly attested by the Revenue Officer in the presence of Kardar of Devta. It was specifically denied that the interest of Devta was not watched properly. Defendant No.2 (Smt. Maina Devi) was present at the time of attestation of mutation. Defendant Charan Dass had exchanged 3 the land after satisfying himself about the title of defendant No.1 Smt. Ketki Devi. The suit land was found in possession of Charan Dass and mutation No. 7079 dated 18.8.2000 was attested by Assistant Collector IInd Grade. He had developed the land, raised boundary wall and apple orchard by spending huge amount. Kekti had rightly sold Khasra No. 3323 to Begmu Devi. Begmu Devi (defendant No.4), in original suit, has filed separate written statement. It was averred therein that Surinder Kumar had no authority to institute the suit and the suit was collusive between him and Maina Devi. It was asserted that Surinder Kumar was not Pujari of the Deity and he was having no authority to institute the suit. The mutation of conferment of proprietary right was rightly sanctioned. She had purchased part of Khasra No. 3323 from Kekti vide sale deed No. 610 dated 16.5.1985 for valuation consideration of ` 13,000/-. She was in possession over the suit land and has developed the same by raising boundary wall and orchard after spending huge amount. Inquires were made by her regarding the title of the land of Kekti and after verifying the title of Kekti. Therefore, she was bona fide purchaser for valuable consideration. She sold the land in favour of Bala Ram and Bala Ram transferred the land to Kehar Singh and Hira Lal-defendants No. 6 and 7, in original suit. The replications were filed and the issues were framed by 4 the trial court on 12.7.2006. The trial court decreed the suit on 17.1.2009. Defendant No.3 Charan Dass and defendant No.4 Begmu filed an appeal bearing Civil Appeal No. 13 of 2009 against the judgment dated 17.1.2009 before the learned Additional District Judge, Fast Track Court, Kullu. Learned Additional District Judge, Fast Track Court, Kullu dismissed the appeals vide judgment and decree dated 13.5.2010. Hence, the present Regular Second Appeal. 3. Similarly, defendants No.6 and 7, namely, Kehar Singh and Hira Lal had also filed separate appeal No. 4 of 2009 (RBT Civil Appeal No. 22 of 2009) before the learned Additional District Judge, Fast Track Court, Kullu. Their appeal was also dismissed by a common judgment dated 13.5.2010. Sh. Kehar Singh and Hira Lal preferred R.S.A. No. 379/2010 before this Court. The same was dismissed by this Court on 1.10.2010, reported in 2010 (3) Him. L.R. 1547, titled as Kehar Singh and another versus Devta Thakur Gopalji Sarsai and others. 4. Mr. S.K. Khanna has strenuously argued that the judgments and decrees passed by both the courts below are contrary to settled principles of law. According to him, since the plaintiff had not raised any objection at the time of conferment of proprietary rights by Assistant Collector 2nd Grade, the same could not be termed as illegal. He also argued that the suit was 5 not maintainable on behalf of Surinder Kumar. According to him, both the courts below have not properly read Ex.P-3, copy of jamabandi for the year 1979-80. 5. Mr. Anand Sharma and Mr. Jagan Nath, Advocates have supported the judgments and decrees passed by both the courts below. Mr. Bimal Gupta has supported the contentions of Mr. S.K. Khanna. 6. I have herd the learned counsel for the parties and have gone through the record carefully. 7. The questions raised in this Regular Second Appeal have already been gone into by this Court in RSA No. 379/400, which had also arisen from the common judgment dated 13.5.2010. The questions raised by Mr. S.K. Khanna have been considered by this Court in RSA No. 379/400, titled Kehar Singh and another versus Devta Thakur Gopalji Sarsai and others decided on 1.10.2010. The relevant extract of the same reads thus: “14. Ex.P-4 is the copy of mutation No. 4043. It has been attested by Assistant Collector IInd Grade. However, as per the provisions of the Himachal Pradesh Tenancy and Land Reforms Act and rule 29 of the Himachal Pradesh Tenancy and Land Reforms Rules, only Assistant Collector 1st Grade is competent to confer proprietary rights and sanction the mutation and the order passed by the Assistant Collector IInd Grade in the instant case is without jurisdiction. The Assistant Collector IInd Grade is neither competent to attest 6 the mutation nor settle the dispute. In view of this the findings recorded by both the courts below that the mutation No. 4043 conferring the proprietary rights upon the defendants is without jurisdiction and void ab initio is upheld. Such mutation could not confer any right upon any person. Moreover, it is clear from Ex. P-3, i.e. copy of jamabandi for the year 1979-80 that the suit land comprised in old khasra No. 4397 and 4530 present Khasra No. 511/1, 584, 585 and 772 was recorded in the ownership of plaintiff Thakur Gopalji through Smt. Atmi, Dodi widow of Sh. Damodar Dass son of Dyal Dass and Smt. Maina, Smt. Kekti, defendant No.1 as Pujaris. The Pujaris and Kardas were holding the suit land on behalf of the plaintiff Devta as Pujaris and not tenants. Since these Pujaris were never inducted as tenants, proprietary rights could not confer upon them under section 4 of the Himachal Pradesh Tenancy and Land Reforms Act. The defendants have not led any tangible evidence on record that that they had ever paid any rent. Tenancy is a bilateral act. 15. Now, the Court will advert to the arguments of Mr. Bimal Gupta that the suit could not be instituted by Surinder Kumar. It is not in dispute that Surinder Kumar is Pujari of Devta. 16. Their Lordships of the Hon’ble Supreme Court in Bishvanath and another versus Sri Thakur Radha Ballabji and others, AIR 1967 SC 1044 have held as under: “The question is, can such a person represent the idol when the Shebait acts adversely to its interest and fails to take action to safeguard its interest. On principle we do not see any justification for denying such a right to the worshipper. An idol is in the position of a minor; when the person representing it leaves it in the lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest. It is a pragmatic, yet a legal solution to a difficult 7 situation. Should it be held that a Shebait, who transferred the Property, can only bring a suit for recovery, in most of the cases it will be an indirect approval of the dereliction of the Shebait's duty, for more often than not he will not admit his default and take steps to recover the property, apart from other technical pleas that may be open to the transferee in a suit. Should it be held that a worshipper can file only a suit for the removal of a Shebait and for the appointment of another in order to enable him to take steps to recover the property, such a procedure will be rather a prolonged and a complicated one and the interest of the idol may irreparably suffer. That is why decisions have permitted a worshipper in such circumstances to represent the idol and to recover the Property for the idol. It has been held in a number of decisions that worshippers may file a suit praying for possession of a property on behalf of an endowment; see Radhabai v. Chimnaji, (1878) ILR 3 Bom 27, Zafaarab Ali v. Bakhtawar Singhe, (1883) ILR 5 All 497, Chidambaranat Thambiran v. P. S. Nallasiva Mudaliar, 6 Mad. LW 666: (AIR 1918 Mad 464), Dasondhay v. Muhammad Abu Nasar, (1911) ILR 33 All 660 at p. 664: (AIR 1917 Mad 112) (Fb), Radha Krishnaji v. Rameshwar Prasad Singh, AIR 1934 Pat 584, Manmohan haldar v. Dibbendu Prosad Roy, AIR 1949 Cal. 1999.” 18. Mr. Bimal Gupta has strenuously argued that the suit was barred by limitation. Plaintiff Devta Thakur Gopalji is a perpetual minor. Surinder Kumar is worshiper of the Deity and Pujari. He has filed the suit on behalf of the plaintiff Devta. The findings recorded by the courts below with regard to limitation can also not be interfered by this Court. Cogent reasons have been assigned by both the courts below by holding that the suit was within limitation. Plaintiff Devta Thakur Gopalji had no knowledge about mutation No. 8 4023 Ex.P-4 dated 6.8.1984. In these circumstances it can safely be presumed that the plaintiff came to know about the wrong transaction in the month of March, 2005. 21. Accordingly, in view of the observations made hereinabove, there is no substantial question of law involved in the Regular Second Appeal and the same is dismissed. . There shall, however, be no order as to costs. (Rajiv Sharma), J. 5.1. 2011. *awasthi*