R.S.A.No. 2155-56 of 1993(O&M) 1 In the High Court of Punjab and Haryana at Chandigarh Date of decision: 7.4.2011 R.S.A.No. 2156 of 1993(O&M) Narinder Kumar ......Appellant Versus Rakesh Kumar Chopra and others .......Respondents R.S.A.No. 2155 of 1993(O&M) Shiv Kumar and others ......Appellants Versus Rakesh Kumar Chopra and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.R.S.Mittal, Sr. Advocate with Mr.Deepak Thapar and Mr.S.K.Tripathi, Advocates, for the appellants (in RSA No.2156 of 1993). Mr.Kanwal Goyal, Advocate for the appellant (in RSA No.2155 of 1993) Mr.Arun Bakshi, Advocate for respondent No.1. **** R.S.A.No. 2155-56 of 1993(O&M) 2 SABINA, J. Vide this judgment RSA Nos. 2155 and 2156 of 1993 will be disposed of as these have arisen out of the same suit. Plaintiffs had filed a suit under Section 92 of the Code of Civil Procedure for a decree to the following effect:- A. for Permanent Injunction for prevention of the defendants from utilisation of the trust funds or property (Sarai Nauhrian Jullundur) for secular and private objects and conversation and diversion of the funds and property to objects alien to the service of the said Sarai or partition of the property in dispute inter se the defendants; B. (a) for Removing Defendants alleged trustees of Sarai Nauhrian; (b) for Appointing new Trustees for the Sarai (c ) for Vesting the Property in Suit in the new trustees; (C ) (c) for directing the alle3ged trustees who have been removed or the persons who have ceased to be trustees to deliver possession of the trust properties, Sarai Nauhrian and attached premises,lands, Bagichi, etc. etc. (d) for directing accounts and enquiries. (e) for declaring what proportion of the trust property or of the interest, therein, shall be allocated to any particular object of the Sarai Nauhrian and the attached property stated above. (f) for authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged; R.S.A.No. 2155-56 of 1993(O&M) 3 (g) for settling a scheme; (h) for granting such further or other relief as the nature of the case may require; regarding the property of SARAI NAUHRIAN, shown in the plan in RED Colour (attached) bounded as under:- North ..... : Railway Road. South ..... : Road and others. East ..... : Link Road and others. West ..... : Others. Situated on the road to Railway Station, JULLUNDUR CITY. The case of the plaintiffs, in brief, was that they had vested interests as beneficiaries in Sarai Nauhrian, which was a public trust of a charitable nature. The pedigree table, as shown in para 3 of the plaint, is as under:- Bilas Rai | | | | Nand Lal Jamna Dass Kishori Lal | | Badri Dass Hari chand Hari Ram | | | | ----------------------------- --------------------------------------- ----------- | Bishan Dass Ram Saran Bhagat Ram Tej Pal Hussan Lal | | | | | Widow | ----------------------------------------------- | Kala Wati | Shakuntla Hitesh Dinesh Sarita | | Devi (widow) (son) (son) (daughter) | | | | | --------------------------------------------------------------------------------------------------- | | | | | | | | | Krishna Ajit Kumar Parmodh Kumar Sanjay Prem Madhu Neelam | Murodia (son) (son) (minor son) (daughter) (daughter) (daughter) | (widow) | | ------------------------------------------------------------------------------------------------------------------- | | | | | | | Inder Mani Narinder Kumar Satya Sumitra Urmila Raj Saroj (widow) (son) (daughter) (daughter) (daughter) (daughter) (daughter) Nand Lal, Jamna Dass and Kishori Lal had purchased the R.S.A.No. 2155-56 of 1993(O&M) 4 suit property in the year 1901 and had, thereafter, constructed the Sarai in the year 1902 on the said land. The property was dedicated for public trust of the Sarai Nauhrian or Dharamshala for the benefit of visitors to City of Jalandhar. Since then the property had vested in the trust. The fact that the property was dedicated to the trust was evident from the fact that the land measuring 19 kanals 10 marlas had been purchased vide sale deed dated 27.10.1901 for construction of Sarai etc. for charitable purpose. The part of the property of the Sarai was acquired on 22.11.1905. An application was moved to Deputy Commissioner, Jalandhar for acquisition of land of Khushi Ram and Khidmat Rai Khatries. Both of them voluntarily offered the land measuring 4 marlas 7 ½ sarsahi for the benefit of Sarai free of cost vide statement dated 22.11.1905. Qazi Mehbub Alam also gave 2 marlas of land for public use and benefit of the Sarai vide statement dated 1.5.1941. Government of Punjab expressed appreciation for construction of the Sarai for the use of general public and honoured Nand Lal with gifts vide letter dated 22.8.1904. The Sarai being trust property was exempted from property tax. The exemption from House Tax was also granted by the Municipal Committee, Jalandhar on 17.10.1957. A document was executed between the members of the founder's family in the year 1913 which expressed clear and un-mistakable words that the Sarai with 20 shops, garden and land had been earmarked for public purposes. The defendants-descendants of the original founders are not acting up to the ideals of the trust. The public had been divested of their rights qua the benefit of the Sarai. The defendants wanted to convert the same into private ownership. The rents realised from R.S.A.No. 2155-56 of 1993(O&M) 5 the shops and income of the garden was being misappropriated by the defendants for their personal use. Hence, the suit had been filed by the plaintiffs. Defendant No.1, in his written statement denied the contentions in the plaint. It was averred that the Sarai was not a public trust of a charitable nature and hence, the suit was not maintainable. Defendants No.2, 14 to 20, in their written statement, averred that the suit property was not a public trust and hence, the plaintiffs had no concern with the same. The suit property was private property of the defendants. In fact, Nand Lal and Kanna Dass had constructed the building as their private property and had never created any trust or endowment. The building had never been dedicated for a public trust or Dharamshala. The owners had full right to allow any person to stay in the suit property with their permission. On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the plaintiffs have no locus standi ? OPD. 2. Whether the plaintiffs are estopped to file the present suit by their own act, conduct and admission ? OPD 3. Whether the suit is not maintainable ? OPD 4.Whether the suit is bad for non-joinder of necessary parties ? OPD 5. Whether the property in dispute has not been properly described? OPD 6. Whether this Court has jurisdiction ? OPP R.S.A.No. 2155-56 of 1993(O&M) 6 7. Whether the suit is maintainable in the present form? OPP (deleted by my orders dated 16.5.1988) 8. Whether the plaintiffs have interest in the suit property ? OPP 9. Whether Sarai Nauhrian is a public trust of a charitable nature and the suit in representative capacity is maintainable? OPD 10. Whether the property in dispute is owned by the defendants to the extent of 1/3rd share ? OPD 11. Whether the property in dispute is privately owned property and is being used as Sarai right from the beginning ? OPD 12. Whether the suit is barred by resjudicata ? OPD 13. Whether there was any compromise and reference to arbitration as alleged in para 4 of written statement filed by defendants No.2 and 14 to 20 ? If so, its effect? OPD 14. Whether the suit is bad for mis-joinder of (necessary) parties ? OPD 15. Whether the plaint has not been properly verified? If not so, its effect? OPD 16. Whether the suit has been filed malafidely and defendant No.1 is the real plaintiff ? OPD 17.Whether Nand Lal and Jamna Dass constructed the building at the land in dispute as a private property ? OPD 18. What is the effect, if any, of the judgment dated 9.10.1980 of Shri J.P.Mehmi, Sub Judge ? OPD R.S.A.No. 2155-56 of 1993(O&M) 7 19. Whether the suit has been filed malafidely in collusion with and at the instance of defendant No.1 ? OPD 20. Whether the suit is liable to be stayed as alleged in para 12 of the written statement ? OPD 21.Whether the property in dispute is a trust created for public purpose of a charitable nature ? OPD 22. Whether the plaintiffs are entitled to the relief claimed and described in para No.12 of the plaint ? OPD 23. Relief.” The Senior Sub Judge decreed the suit of the plaintiffs vide judgment and decree dated 11.10.1988. The plaintiffs in their representative capacity were granted a decree for permanent injunction against the defendants restraining them from utilising the trust funds and trust property Sarai Nauhrian, Jalandhar and the shops, land and Bagichi attached to it for private objects and from converting and diverting its funds and properties to the objects alien to the service of the said Sarai, otherwise than in due course of law. They were also permanently restrained from partitioning this property among the defendants, otherwise than in due course of law. The defendants were also removed as trustees of the public trust of charitable nature of Sarai Nauhrian and the shops, land and Bagichi attached to it. In their place Sh. L.C.Mehra, Advocate, Sh.Ujagar Singh Atwal, Advocate and Smt.Suvira Aggarwal, Advocate, Jalandhar were appointed as (new) trustees for managing the said trust and the said trust property was vested in the new trustees. The defendants were directed to deliver the possession of the trust R.S.A.No. 2155-56 of 1993(O&M) 8 properties to the aforesaid new trustees. It was declared that trust property and the interest therein should be allocated to the maintenance, upkeep and repair of the Sarai Nauhrian, Jalandhar. A preliminary decree was passed and the defendants were directed to render account of the trust properties. The new trustees were also directed to draw up a scheme for the management of the trust properties and submit the same to that Court within six months. It would be open to the new trustees to make application to that Court from time to time for such directions as they might need from the Court. It would be open to the Court to issue directions to the new trustees from time to time as might be necessary for efficient discharge of their duties as trustees. Aggrieved by the said judgment and decree, defendants No.2 to 6, 14 to 18 and 20 had filed an appeal. Defendant No.1 Narinder Kumar had filed a separate appeal challenging the judgment and decree passed by the trial Court. Vide judgment and decree dated 27.4.1993, Additional District Judge dismissed the appeals. Hence, the present appeals by the said unsuccessful defendants. Learned counsel for the appellants have submitted that the Courts below had erred in decreeing the suit of the plaintiffs. In fact, no public trust had been created by the founders of the Sarai. Although the public was allowed to stay in the Sarai but the property in dispute was being managed by the founders of the Sarai and thereafter their inheritors. The property in dispute had never been dedicated to a public trust after creation of a trust. In support of his arguments, learned counsel have placed reliance on Mahant R.S.A.No. 2155-56 of 1993(O&M) 9 Harman Singh vs. Gurdial Singh and another AIR 1967 Supreme Court 1415 (1), wherein, in para 6, it was held as under:- “As we have indicated earlier, in the plaint the plaintiffs claimed interest in the trust property in their capacity of representatives of the owners of the land situated at village Jhandawala and of residents of village Jhandawala. The findings of fact recorded show that the land, which was donated to this institution, was given by the inferior owners of this village out of their joint land. The plaintiffs respondents did show that they were Lambardars in the village but no attempt has been made at any stage to prove that any of the two plaintiffs was an inferior owner of land situated in this village, or that he was a descendant or a successor in-interest of any of the inferior owners who donated the land to this institution in the year 1904. The mere capacity as Lambardars does not entitle the plaintiffs respondents to claim that they are representatives of the inferior owners of the land who donated the land to this institution The second ground of claim was that the plaintiffs/respondents were residents of village Jhandawala, but, again, there is no pleading and no evidence tendered to show that the residents of village Jhandawala in general had any such interest in this trust which could entitle them to institute such a suit. The only allegation was that a Langar used to be run in this institution where free kitchen was provided to visitors, It was nowhere stated that any such free kitchen was being R.S.A.No. 2155-56 of 1993(O&M) 10 run for the general residents of village Jhandawala who could, as of right, claim to be fed in the Langar. Mere residence in a village where free kitchen is being run for providing food to visitors does not create any interest in the residents of the village of such a nature as to claim that they can institute a suit for the removal of the Mahant. The nature of the interest that a person must have in order to entitle him to institute a suit under S. 92, C. P. C., was first examined in detail by the Madras High Court in T. R. Ramachandra Aiyar v. Parameswaran Unni, ILR 42 Mad 360: (AIR 1919 Mad 384). After the dismissal of the suit under S. 92, C.P. C., by the District Judge, the case came up in appeal before Wallis, C. J., and Kumaraswami Sastri, J., who delivered dissenting judgments. The appeal was dismissed and then came up before a Full Bench of three Judges under the Letters Patent. Three different judgments were delivered by the members of the Full Bench, Abdur Rahim, Old field and Coutts.Trotter, JJ. Wallis, C.J., when dealing with the appeal at the earlier stage, expressed his opinion that to entitle him to sue under S. 92, C.P. C., it is not enough that the plaintiff is a Hindu by religion, but he must have a clear interest in the particular trust over and above that which millions of his countrymen may be said to have by virtue of their religion; and this opinion was expressed even though the word "direct" in S. 92. C.P.C., had been omitted. It is not necessary to refer to other opinions R.S.A.No. 2155-56 of 1993(O&M) 11 expressed by the learned Judges in that case in view of the decision of their Lordships of the Privy Council in Vaidvanatha Ayyar v. Swaminatha Ayyar, 51 Ind App 282: (AIR 1924 PC 221) (2), where they approved the opinion expressed by Sir John Wallis, C. J., in the case cited above, and held: "They agree with Sir John Wallis that the bare possibility, however remote, that a Hindu might desire to resort to a particular temple gives him an interest in the trust appears to defeat the object with which the Legislature inserted these words in the section. That object was to prevent people interfering by virtue of this section in the administration of charitable trusts merely in the interests of others and without any real interests of their own." Agreeing with the view expressed by the Privy Council, we hold that in the present case the plaintiffs/respondents, who were merely Lambardars and residents of village Jhandawala, had, in those capacities, no such interest as could entitle them to institute this suit. Learned counsel have further placed reliance on The Bihar State Board of Religious Trust (Patna) vs. Mahanth Sri Biseshwar Das AIR 1971 Supreme Court 2057, wherein, in para Nos. 15 and 17, it was held as under:- “The case in point is of Babu Bhagvan Din v. Gir Har Saroop 67 Ind App 1 = (AIR 1940 PC 7). The original grant there was to the respondents' ancestor, one Daryao Gir, by the then Nawab of Oudh. The property in question comprised of land on which stood the temple, the R.S.A.No. 2155-56 of 1993(O&M) 12 presiding deity of which was Bhaironji, certain houses and shops. The respondents, who claimed to be the descendants of the original grantee, were grahastha fakirs i.e., both gosbains and householders. There was no proof that there had been any interference with the management of the properties. The revenue records showed the properties in the names of the descendants of Daryao Gir. The shopswere let out and in the leases concerning them the gosbains were referred to sometimes as owners and sometimes as owners of the "asthan Sri Bhaironji." There was evidence, however, of members of the Hindu public having resorted to the temple for worship and darshan without any obstruction. An annual mela used to be held for many years with public subscription on the grounds of the temple. The evidence showed that the temple and the gosbains profited from the increased resort to the temple by the public during the mela period. Yet, the Privy Council held that the general effect of the evidence was that the family had treated the temple as family property and the mere fact of the members of the public having come to the temple and having made offerings and the mela having been held which gave popularity to the temple and increased its esteem in the eyes of the public and the fact that they were never turned away were not enough to hold the temple and the properties as a public trust. At page 10 of the report their Lordships observed: R.S.A.No. 2155-56 of 1993(O&M) 13 "Dedication to the public is not to be readily inferred when it is known that the temple property was acquired by grant to an individual or family. Such an inference, if made from the fact of user by the public, is hazardous, since it would not in general be consonant with Hindu sentiments or practice that worshippers should be turned away and, as worship generally implies offerings of some kind, it is not to be expected that the manager of a private temple should in all circumstances desire to discourage popularity." Thus the mere fact of the public having been freely admitted to the temple cannot mean that courts should readily infer therefrom dedication to the public. The value of such public user as evidence of dedication depends on the circumstances which give strength to the inference that the user was as of right. No such evidence of any reliable kind was available to the appellant-Board in the instant case. 17. xxxx xxx xxx xxxxx A religious mutt in northern India is usually known as asthal, a monastic institution founded for the maintenance and spread of a particular sampradaya or cult. The distinction between dedication to a temple and a mutt is that in the former case it is to a particular deity, while in the latter, it is to a superior or a mahant. But just as in the case of the debutter endowment, there is both a private R.S.A.No. 2155-56 of 1993(O&M) 14 and a public endowment, so too there can be the same distinction between a private and a public mutt.” Learned counsel have also placed reliance on Kuldip Chand vs. Advocate General to Government of Himachal Pradesh and others AIR 2003 Supreme Court 1685, wherein, in para Nos. 39 and 40, it was held as under:- “39. A dedication for public purposes and for the benefit of the general public would involve complete cessation of ownership on the part of the founder and vesting of the property for the religious object. In absence of a formal and express endowment, the character of the dedication may have to be determined on the basis of the history of the institution and the conduct of the founder and his heirs. Such dedication may either be complete or partial. A right of easement in favour a community or a part of the community would not constitute such dedication where the owner retained the property for himself. It may be that right of the owner of the property is qualified by public right of user but such right in the instant case, as noticed hereinbefore, is not wholly unrestricted. Apart from the fact that the public in general and/or any particular community did not have any right of participation in the management of the property nor for the maintenance thereof any contribution was made is a matter of much significance. A dedication, it may bear repetition to state, would mean complete relinquishment of his right of ownership and proprietary. A benevolent act on the part R.S.A.No. 2155-56 of 1993(O&M) 15 of a ruler of the State for the benefit of the general public may or may not amount to dedication for charitable purpose. 40. When the complete control is retained by the owner - be it be appointment of a Chowkidar, appropriation of rents, maintenance thereof from his personal funds - dedication cannot be said to be complete. There is no evidence except oral statements of some witnesses to the effect that Raj Kumar Bir Singh became its first trustee. Evidence adduced in this behalf is presumptive in nature. How such trust was administered by Raj Kumar Singh and upon his death by his successors in interest has not been disclosed. It appears that the family of the donor retained the control over the property and, therefore, a complete dedication cannot be inferred far less presumed. Furthermore, a trust which has been created may be a private trust or a public trust. The provisions of Section 92 of the Code of Civil Procedure would be attracted only when a public trust comes into being and not otherwise.” Learned counsel have next placed reliance on Chandu Lal vs. Rampat Mal and another AIR 1933 Lahore 189, wherein it was held as under:- “In Deosaran Bharthi v. Deoki Bharthi (3) and Bhekdhari Singh v. Sri Ramchand Raji9 (4) there is a long discussion as to what is essential when dedicating to the public or to God such like property as a dharamsala, etc. R.S.A.No. 2155-56 of 1993(O&M) 16 “Creation of trust for religious purpose,” it is said “no doubt finds favour in the Hindu law just in the same way as it does in the other communities and the essential ingredient which constitutes a gift whether of moveable or immovable property in the Hindu law is the sankalp and the samarpan whereby the property is completely given away and the owner completely divests himself of the ownership in the property. In Hindu law there must be a true sankalp and samarpan.” Of this ceremony there is no evidence and as I have already remarked in such a recent case of alleged dedication proof of user only would scarcely be sufficient; while such proof that there is of user is consistent with the private ownership of Molar Mal” Learned counsel for the respondent-plaintiffs, on the other hand, has submitted that from the evidence on record, it was evident that the suit property was a public trust. The owners had constructed the Dharamshala for charitable purposes after purchasing the land in the year 1901. Thereafter, the Sarai/ Dharamshala was being used by the public at large. The land had also been given by some other persons to the Dharamshala. The Dharamshala was exempted from payment of house tax and property tax. The income from the shops was being used for the maintenance of the Sarai/ Dharamshala. The defendants were not, however, properly managing the suit property and were utilising the funds for their personal use although the public trust had been created. The substantial questions of law that arise in these appeals are “Whether the suit property was a public trust and R.S.A.No. 2155-56 of 1993(O&M) 17 whether the