IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA RSA No. 274 of 1995 Date of decision: 11th January, 2008 Mohar Singh and others Appellants Versus Moti Ram Respondent Coram The Hon’ble Mr. Justice Sanjay Karol,J. Whether approved for reporting1? Yes. For the appellants: Mr.Anand Sharma, Advocate. For the respondent: Mr.Bhupender Gupta, Senior Advocate, with Mr.Neeraj Gupta, Advocate. Sanjay Karol, J. (Oral) The present appeal arises out of the concurrent finding of fact recorded by the Court below. The appellants herein were the defendants in the suit filed by the respondent herein as plaintiff. Plaintiff is the Kardar of deity (Devta Jamlu) of Village Sees, Phati Parli, Kothi Kotkandi, Tehsil and District Kullu, H.P. According to Wazib-ul-arz, the deity in question is to be looked after and managed by the Kardar. The office of Kardar usually being hereditary, the plaintiff succeeded his father Shri Gehru Ram as Kardar in the year 1988. Some of the local worshipers (Harijans) lodged a complaint against the plaintiff. An enquiry was instituted by the Deputy Commissioner and SDO (Civil), Kullu, enquired the matter and submitted his report. Based Whether the reporters of Local Papers are allowed to see the Judgment? on the same, the Collector passed an order dated 10.7.1991 appointing the plaintiff as Kardar of the deity subject to the condition that the Managing Committee shall look after the management and maintenance of the accounts of the deity. It is this action of the Deputy Commissioner and its order dated 10.7.1991 which has been partly assailed by the plaintiff by way of Civil Suit. The plaintiff prayed as under:- “It is, therefore, prayed that it may be declared that the plaintiff being the Kardar of Devta Shri Jamlu of Village Sees, have been enjoying the over all affairs and management of Devta Shri Jamlu of Sees and is entitled to manage and look after the property, funds, money, offerings and day to day affairs of the Devta and the account of its income and expenditure and as such the order of learned Collector Kullu dated 10.7.91 constituting the managing committee consisting of the defendants, authorizing them to run and discharge the affairs of the Devta Jamlu, is null and void, illegal and without any authority of law and as such the plaintiff is not bound by the same with consequential relief of injunction, restraining the defendants from causing any sort of unlawful interference in such rights of the plaintiff being Kardar of Devta and claiming themselves as Managers of the Devta Jamlu of Sees and a decree to that effect together with costs of the suit may kindly be passed in favour of the plaintiff and against the defendants.” Based on the pleadings of the parties, the trial Court framed the following issues:- “1. Whether the order dated 10.7.91 in case No.3-DC appointing/constituting a management committee for the affairs of the deity is void, illegal and wrong, as alleged? OPP 2. Whether the plff is estopped from filing the suit by his act and conduct as alleged? OPD. 3. Whether the suit is bad for non-joinder of necessary parties, as alleged? OPD 4. Whether the plff has no locus standi to file the present suit, as alleged? OPD 5. Relief.” Appreciating the material on record, the trial Court held that the action of Deputy Commissioner to the extent of appointment of a Committee was contrary to the provisions of Wazib-ul-Arz and, therefore, the suit filed by the plaintiff was decreed in terms of judgment and decree dated 5.3.1994 passed by Senior Sub Judge, Kullu, District Kullu, in Civil Suit No. 232/92. The Court also held the plaintiff’s acceptance of constitution of committee would not act as an estoppel, as the same was contrary to law and, therefore, the plaintiff was not estopped from filing the suit and partially assailing the orders. Aggrieved by the same, defendants filed an appeal, which was dismissed in terms of judgment and decree dated 16.6.1995 passed by District Judge, Kullu, in Civil Appeal No. 8/94. The finding of fact returned by the Court below were affirmed by the appellate Court. The appeal was admitted on the following substantial questions of law:- “1. Whether the respondent was not estopped from filing the present suit in view of his conduct. 2. Whether appointment of a Committee, that too, with the consent of Kardar for managing the affairs of the Deity was against the provisions of Wazib-Ul- Arz.” The Wazib-Ul-Arz in question came up for consideration before this Court in Shri Devta Shringa Rishi vs. Collector, Kullu and others, SLJ 1971 H.P. 337. It was so held that the office of Kardar is usually hereditary in nature and only in the case of misappropriation or misconduct the Kardar can be removed by the Deputy Commissioner. The Court held that “If Bhagat Ram was possessed of a legal right, there was naturally a corresponding legal duty that was reposed in the Collector, Kulu, to observe the provisions of Wajub-Ul-Arz and other relevant law on the subject while seeking his removal and the appointment of another kardar.” Wazib-Ul-Arz, therefore, is the law and all appointments, removals and orders are to be passed by the Collector in accordance with the same. It is not in dispute that the plaintiff is the successor-in- interest of the original Kardar and is entitled to the inheritance of the office of the Kardar. The perusal of the impugned order dated 10.7.1991 reveals that the Deputy Commissioner, relying upon the report of SDO (Civil) Kullu approved the appointment of the plaintiff as Kardar subject to the condition that the management and the affairs of the Deity would be looked after by the Committee comprising of five more persons. The first Appellate Court has specifically held that nothing has been produced on record to show the nature of allegations made against the plaintiff and also the findings and the report of SDO (Civil) on the basis of which the Collector had passed the order. It is a matter of record that no such report has been placed on record. Therefore, the allegations are neither proved nor established. Perusal of order passed by the Collector itself would show that he has neither disapproved the continuance of the plaintiff as Kardar nor has passed any order removing him as such. In fact he has affirmatively approved his appointment. There is no evidence of any misconduct proved or established. In this background, the substantial questions of law as framed by the Court need to be examined. Wazib-Ul-Arz, as has been held by this Court is the law and in the absence of any material substantiating the cause of action seeking removal of the plaintiff and also absence of any specific order having been passed by the Collector in this regard, I am of the view that the Collector was not justified in appointing a Committee for the management of the affairs of the Deity. As per the terms of Wazib-Ul- Arz the affairs of the Deity are to be looked after by different persons, such as, Kardar, Pujarai, Prohit, Baja Nawazan (Drum beaters), flower supplies. Particular roles have been assigned to a different persons. The law, therefore, itself provides for proper management of the affairs of the Deity. In the absence of any material or finding of misconduct or misappropriation or dereliction of any duty on the part of Kardar, order passed by the Deputy Commissioner cannot be said to be in accordance with the provisions of Wazib-Ul-Arz. Subsequent to the death of his father, plaintiff assumed the charge of office of Kardar. The Deputy Commissioner confirmed his appointment. Obviously, the allegations against the plaintiff were neither proved nor established, otherwise there was no reason for the Deputy Commissioner to have appointed a person who was otherwise required to be removed or disassociated from the office of Kardar. Having come to the conclusion that plaintiff did not entail any disqualification, the Deputy Commissioner could not have constituted a committee without coming to the conclusion that there was a necessity and/or public interest required for the constitution of the committee. Inheritance to the office of Kardar is the rule and only in exceptional and rare circumstances of proven fact of misconduct and misappropriation the Kardar is to be removed. In view of my aforesaid finding, the issue with regard to the scope of the Collector’s power to appoint the Managing Committee is being left open and not answered and the questions of law as framed are answered to the limited extent in the present case. It has further been argued by the learned counsel for the appellants that the suit filed by the plaintiff was beyond the period of limitation and, therefore, could not have been entertained by the Court being barred by time. He has referred to and relied upon a decision report in M/s Craft Centre and others vs. The Koncherry Coir Factories, Cherthala, AIR 1991 Kerala 83 to contend that the question of limitation can be urged and decided even at the stage of appeal. The Collector passed an order on 10.2.1991 and the suit was filed on 14.10.1992. In my view, the suit of the plaintiff would not be barred by limitation. Considering the declaration he has sought in the suit his case would be covered under Article 58 of the Limitation Act as he was seeking declaration of his statutory status and rights in accordance with the provisions of law. Further the relief of injunction is a continuing one. Even in the written statement, the defendants did not take this as an objection. Therefore, it could not be contended that suit filed by the plaintiff is barred by limitation. The contention needs to be rejected also for the reason that the appellants had raised the issue of limitation before the first Appellate Court, which was rejected and no substantial question of law was either pressed or framed by the Court at the time of admission of the present appeal and the same was also not urged in the grounds of appeal. Since there is nothing on record to show the alleged misconduct on the part of the plaintiff, therefore, the consent given by the plaintiff being contrary to law would not estop him from filing the suit in question. It is not a case where the defendants have altered their position on any premises made by the plaintiff. The plaintiff was entitled to have his statutory and legal rights enforced. The substantial questions of law are answered accordingly. For the foregoing reasons, the appeal is dismissed. January 11, 2008 (Sanjay Karol) (C) Judge.