RSA No.362 of 1980 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.362 of 1980 Date of Decision: 5.3.2009 Brij Lal & Anr. ..Appellants Vs. Raghbir Parshad & Ors. ..Respondents Coram: Hon'ble Mr. Justice Vinod K.Sharma Present: Mr.Tribhuvan Singla, Advocate, for the appellants. Mr.Pritam Saini, Advocate, for the respondents. --- 1. Whether Reporters of Local Newspapers may be allowed to see the judgment? 2. To be referred to the Reporters or not? 3. Whether the judgment should be reported in Digest? --- Vinod K.Sharma,J. Plaintiff/respondent brought a suit for declaration that Dharamsala known as Dharamsala Brahmnan situated at light Railway Road, RSA No.362 of 1980 2 Jagadhri with all the properties attached thereto is the property of the plaintiff and that the use of the disputed property stands dedicated to Panchyat Brahmnan who alone was entitled to manage the same with the consent of the plaintiff/respondent. Consequential relief of permanent injunction was also sought restraining the defendants from interfering with the management of the said Dharamsala Brahmnan without the consent of the plaintiff. Suit was brought on the pleadings that Devi Sahai a distant ancestor of the plaintiff was the owner of the property in dispute, he by way of deed dated 11.12.1826 constituted the property in dispute as Dharamsala Brahmnan and allowed Panchyat Brahmnan the user of the said Dharamsala. Some dispute arose around the year 1870 when another writing was made by Devi Sahai and it was inter alia stipulated that the Panchayat shall only be entitled to use the said Dharamsala. Plea of the plaintiff, therefore, was that the management of Dharamsala was to be carried on by Brahmnana of Jagadhri with the consent and guidance of descendants of Devi Sahai founder. Dharamsala was continued to be so managed by Brahmanan community in accordance with the wises of Devi Sahai and his descendants. But later on defendants colluded together and a litigation was started in the year 1941 by Pandit Hari Chand and Pandit Gaje Dhar against Ruli Chand and another for the removal of said Ruli Chand and for the appointment of Gaur Brahman Sabha as the trustees of the said Dharamsala. Later on litigation ended into a compromise whereby a preliminary decree was passed by the learned Senior Sub Judge, Ambala, RSA No.362 of 1980 3 holding that the then trustees be removed from the trusteeship and in their place one Gaur Brahman and one Vaish member be appointed as trustee of each community. Under the deree one Piare Lal and one Gokal Chand were appointed as trustees. In another litigation Pandit Nand Kishore was appointed as trustee on behalf of Brahman community and Raj Kumar was appointed as trustee of Vaish community. Nand Kishore was later on replaced by Pandit Rahdha Kishan defendant. It is further alleged that later on an application was moved by some of the beneficiaries of the trust under section 92 of the Code of Civil Procedure (for short the Code) for appointment as Vaish members as trustees in pursuance to the scheme stated to have been sanctioned by the preliminary decree on 6.11.1941. However, said application was declined. Order dismissing the application was challenged by way of revision in this court. This court held that the appointment of trustee could not be made by way of execution of the preliminary decree but it was ordered that the court should proceed with the application as it was a suit under section 92 of the Code. Said suit was said to be pending in the trial court. The plaintiff/respondent claimed himself to be the descendent of the founder of the trustees and claimed that he was entitled to exercise his right to nominate the trustees or the managers of the said Dharamsala for the purpose of its use and protection and that the defendants have no such right to interfere with the management or to usurp the management of the said property. RSA No.362 of 1980 4 Plaintiff/respondent also denied knowledge of previous litigation of the years 1941, 1955 and 1966. The suit was contested by defendants No.1 and 2. In their written statement averments made in the plaint were denied and it was claimed that Dharamsala Brahmnan was constructed by the ancestors of Ruli Chand and Nand Kishore who were the trustees and that the trust was a public charitable trust. It was also pleaded that Brahman Sabha as such has nothing to do with it or any of its properties. Stand was also taken that the disputed property was never owned or possessed by the plaintiff or his ancestors. Additional pleas were taken that the suit was barred under section 92 of the Code as well as by time. It was also pleaded that the plaintiff and their predecessors never objected to management and consented to the same and thus, the plaintiff was estopped from filing the present suit. It was claimed that the suit in the present form was not maintainable. Defendant No.3 by way of separate written statement took a stand that the property in dispute was under his management as he was appointed as trustee under the orders of the court. He further pleaded that the appointment of trustee was within the powers of the court and no individual could be granted power of appointment. It was, thus, pleaded that suit was not maintainable. Plea of estoppel was also raised. Defendant No.4 by way of separate written statement pleaded that the public charitable trust known as Dharamsala Brahmnan, Jagadhri RSA No.362 of 1980 5 was created by the Hindu General public of Jagadhri and amount was also invested by the general public. He denied the ownership of Devi Sahai and also the claim of the plaintiff that he had any right of management in respect of the property in suit. Stand was also taken that the plaintiff/ respondent has no right to appoint or nominate any trustee. Property was said to be under the management of defendant No.3 and not with Brahman Sabha defendant No.5. Plea was also taken that the suit for mere declaration was not competent. Suit was said to be barred by limitation as well as provisions of section 92 of the Code. Defendant No.4 denied the existence of institution known as Panchayat Brahman, Jagadhri. It was lastly pleaded that even if Devi Sahai was owner of the property he ceased to be so after dedication of the same for the public use. Plea of estoppel was also raised. Defendant No.5 in his written statement admitted that Devi Sahai was original owner of the property and that he was entitled to appoint persons to look after and manage the Dharamshala and its property. He further admitted that Panchayat Brahmanan was only entitled to manage the property of Dharamsala. He claimed to be successor of Panchayat Brahman and thus, claimed the right to manage Dharamsala and its properties through the plaintiff or any of his representatives. On the pleadings of the parties learned trial court was pleased to frame the following issues:- 1. Whether Dharamshala Brahman and its properties were founded and are the properties of Shri Devi Sahai son of RSA No.362 of 1980 6 Shri Thana Singh alias Thanu and is owned by his descendants? OPP 2. Whether the plaintiff is related to Shri Devi Sahai as alleged in para 1 of the plaint? OPP 3. Whether the user of the said Dharmshala and its properties was dedicated to Panchayat Brahman alone and if so, then on terms and conditions as stated by the plaintiff? OPP 4. Whether the said Dharamshala and its properties were managed by panchayat Brahmnan in accordance with wishes of the said Devi Sahai and his descendants? OPP 5. The plaintiff being out of possession, whether the suit in the present form is maintainable? OPP (onus objected to) 6. Whether the suit is within limitation? OPP 7. Whether the proceedings and orders passed by various courts as stated by the plaintiff in 1941, 1955 and 1966 are void and a nullity and not binding on the plaintiff and are inoperative as against plaintiff? 8. Whether the suit is barred by Section 92 CPC? O.Defendant No.4. 9. Whether the plaintiff is estopped from filing this suit as stated by defendant No.4? O.Defendant No.4. 10. Relief. RSA No.362 of 1980 7 Issues No.1 to 3 were taken up together. On issues No.1 to 3 on the basis of evidence on record learned trial court was pleased to hold that the plaintiff was related to Devi Sahai. It was also held that charitable trust known as Dharamsala Brahamnan was founded by Devi Sahai and plaintiff was one of his descendants. The learned trial court took note of the documentary evidence Exs.PW 4/8 and PW 4/9 showing that the public charitable trust was created on certain conditions and the user of the property was dedicated to the Brahman community on certain terms and conditions and according to the founder of the trust, the ownership of the property shall remain with the founder and his descendants. The learned trial court held that the plaintiff had no right or interest in the disputed property as the condition stipulated in the deed that the trustee shall be appointed with the consent of the descendants of the founder is void. On issue No.4 learned trial court was pleased to hold that there was no question of management of Dharamshal being carried out according to the wishes of Devi Sahai in view of the orders passed by the court in the earlier litigation. On issue No.5 the courts held that the suit in the present form was maintainable On issue No.6 suit was held to be time barred in view of the fact that the property was given to Brahman community for 101 years vide document Ex.PW 4/9 and the said period expired on 10.3.1971. On issue No.7 learned trial court was pleased to hold that the orders passed by the various courts in the years .1941, 1951 and 1966 were binding on the plaintiff. On issue No.8 it was held that the suit was not barred by the provisions of section 92 of the Code, whereas issue No.9 was RSA No.362 of 1980 8 decided against defendant No.4. Consequently, the suit was ordered to be dismissed. Plaintiff preferred an appeal against the judgment and decree. In the appeal learned lower appellate court reversed the findings by holding that there were large number of authorities upholding the right of partial dedication. Learned lower appellate court held that the documents Ex.PW 4/8 and PW 4/9 showed that the dedication of property was to the Panchayat Brahamnan for use of building as Dharamshala and in Ex.PW 4/9 the rights of the descendants of founder had been kept in tact and it is Panchayat Brahmnan which had to deal with the property of Dharamshala. Learned lower appellate court also took note of paragraph 407 of Hindu Law by Mulla and reversed the finding of the learned trial court by observing as under:- “ As provided in para No.407 of the principles of Hindu Law by D.F.Mulla, it is essential for the creation of a Charitable trust that the property intended for the endowment should be dedicated and it is necessary for the validity of a deed of an endowment that the executant should divest himself of the property. Whether he has done so or not is to be determined by the subsequent acts and conducts. It was held in AIR 1957 at page 133 that for creating a public trust for charitable purpose,the ceremonies of sankulp that is formal dedication, and Utsaraga viz. Complete renunciation of the ownership of the property are essential, and unless and until the RSA No.362 of 1980 9 property has been absolutely diverted to the purpose of the public trust and an absolute grant is created, no public trust for charitable purposes can be granted”. “ The observations do not appear to be correct as no dedication is required for making such dedication, as the paragraph 407 of the Hindu Law lays down: No writing is necessary to create an endowment”. There is nothing in Paragraph 407 of the said book that it has to be an absolute dedication. The authorities quoted above also do not support the view taken up by the learned trial court and rather hold that there can be partial or complete dedication. So in the case in hand, the findings of the learned trial Sub Judge on issues No.1, 3 and 4 cannot be sustained as the founder has completely divested himself of the property but has only kept the rights to manage the property for the descendants or for the Panchayat Brahminan. So the findings on all the three issues arrived at by the learned trial court are reversed as such conditions do not make the dedication invalid.” In view of above findings, learned lower appellate court was pleased to hold that the learned trial court was not right in holding that there could be no partial dedication. Thus, the findings on issues No.1, 3 & 4 were ordered to be reversed. Finding on issue No.2 was affirmed for want of challenge. On issue No.5 learned lower appellate court was pleased to RSA No.362 of 1980 10 hold that there was evidence that defendants have been leasing out some property attached with Dharamshala while the plaintiff has been managing for repairs of the building and further that the descendants of deceased Devi Sahai and others have constructed rooms in the building in question. Therefore, it was held that there was no admission by the plaintiff that the possession had been taken from them by the respondents. Dharamshala was said to be in possession of the strangers who come to the place and stay there for some time and go back. Thus, the finding on issue No.5 was also reversed. Learned lower appellate court on issue No.6 was pleased to hold that the stand of the plaintiff/respondent that he was being deprived of the management by interference on the part of the defendants as they had locked the property on 5.3.1969 stood proved as allegations, went unrebutted. Learned lower appellate court also noticed that the initial document was executed about 101 years ago and the period of dedication expired in 1971 and therefore, the suit was within limitation by holding that interference with the management gave day to day cause of action and the suit could not be said to be time barred. Learned lower appellate court held that the cause of action regarding management of the property arose when his right was threatened. Finding on issue No.6 was reversed. On issue No.7 learned lower appellate court held that as the plaintiff/respondent was not party to the previous litigation and therefore, was not bound by the said findings. RSA No.362 of 1980 11 Finding on issue No.9 was also ordered to be reversed. Appeal was accordingly allowed and the judgment and decree of learned trial court was set aside. A decree for declaration was passed in favour of the plaintiff/respondent to the effect that the property in question has been dedicated to panchayat Brahmanan and the same has right to manage the property with consent of the descendants of Devi Sahai. The appellant/defendants were restrained from interfering in the management of Dharamsala, in any manner. Learned counsel for the appellants contends that this appeal raises the following substantial questions of law:- 1. Whether the dedication of the property can be partial? 2. Whether the suit was within limitation? 3. Whether the suit was barred under the provisions of section 92 of the Code of Civil Procedure? 4. Whether earlier litigation were binding on the plaintiff? 5. Whether the suit as framed was maintainable? In support of the first substantial question of law, learned counsel appearing on behalf of the appellants contends that learned lower appellate court committed an error in reversing the findings of the learned trial court holding that the partial dedication was permissible under Hindu Law. The contention of the learned counsel for the appellants is that if the dedication is partial, a public trust is not created. For creation of public trust, the dedication has to be complete. RSA No.362 of 1980 12 In support of this contention learned counsel for the appellants placed reliance o the judgment in the case of S.Shanmugam Pillai & others Vs. K.Shanmugam Pillai & others AIR 1972 SC 2069, wherein Hon'ble Supreme Court has been pleased to lay down as under:- “ The dedication of a property to religious or charitable purposes may be either complete or partial. If the dedication is complete a trust in favour of a charity is created. If the dedication is partial, a trust in favour of a charity is not created but a charge in favour of the charity is attached to, and follows the property which retains its original private and secular character. Whether or not a dedication is complete is a question of fact to be determined in each case on the terms of the relevant document if the dedication was made under a document. In such a case it is always a matter of ascertaining the true intention of the parties. Such an intention must be gathered on a fair and reasonable construction of the document considered as a whole. If the income of the property is substantially intended to be used for the purpose of a charity and only an insignificant and minor portion of it is allowed to be used for the maintenance of the worshipper or the manager, it may be possible to take the view that dedication is complete. If, on the other hand, for the maintenance of charity a minor portion of the income is expected or required to be used and a substantial surplus is left in the hands of the manager or RSA No.362 of 1980 13 worshipper for his own private purposes, it would be difficult to accept the theory of complete dedication.” The reading of the above judgment would show that Hon'ble Supreme Court has observed that dedication of property for religious or charitable purpose can be either complete or partial. The contention of the learned counsel for the appellants that partial dedication is not permissible as no public trust can be formed, cannot be accepted. Learned lower appellate court rightly held by relying upon the paragraph of Hindu Law by Mulla that the dedication could be partial. Learned counsel for the appellants, thereafter, contended that once the dedication was made it was not capable of being revoked and therefore, the judgment and decree passed by the learned lower appellate court deserve to be set aside. This plea is also misconceived as the dedication has never been revoked. Rather the learned courts below have held that the dedication was for 101 years which expired in the year 1971. Learned counsel for the appellants thereafter by placing reliance on the judgment of Hon'ble Supreme Court in the case of Menakuru Dasaratharami Reddi and another Vs. Duddukuru Subba Rao and others AIR 1957 SC 797 contends that whether the dedication is complete or partial is a question to be determined on the facts and circumstances of each case. In Menakuru Dasaratharami Reddi and another Vs. Duddukuru Subba Rao and others (supra) Hon'ble Supreme Court has been pleased to lay down that whether or not dedication is RSA No.362 of 1980 14 complete would naturally be a question of fact to be determined in each case in the light of material terms used in the document. In such cases it is always the matter of ascertaining the true intention of the parties. It is obvious that such intention must be gathered by fair and reasonable construction of document considered as a whole. This authority also does not, in any way, advance the case of the appellants. The law laid down would lead to a conclusion that the findings of fact recorded by the learned lower appellate court holding that dedication was partial is a finding of fact which would not be open to challenge in regular second appeal. Learned counsel for the appellants contended that the learned lower appellate court erred in law in reversing the finding on the question of limitation. The contention of the learned counsel for the appellant is that in this case dedication was made for 101 years which expired in 1971 and therefore, the suit for declaration filed by the plaintiff was obviously barred by limitation. The contention of the learned counsel for the appellants is that as right to manage the property came first time in 1941 when the court appointed trustees and therefore, the suit was rightly held to be hopelessly time barred by the learned trial court and finding of learned lower appellate court on the face of it is perverse. In support of this contention learned counsel for the appellant placed reliance on the judgment of Hon'ble Supreme Court in the case of Balakrishna Savalram Pujari Waghmare and others Vs. Shree Dhyaneshwar Maharaj Sansthan and others AIR 1959 SC 798, wherein Hon'ble Supreme Court has been pleased to lay down as under:- RSA No.362 of 1980 15 “ Section 23 refers not to a continuing right but to a continuing wrong. It is the very essence of a continuing wrong that it is an act which creates a continuing source of injury and renders the doer of the act responsible and liable for the continuance of the said injury. If the wrongful act causes an injury which is complete, there is no continuing wrong even though the damage resulting from the act may continue. If, however, a wrongful act is of such a character that the injury caused by it itself continues, then the act constitutes a continuing wrong. In this connection it is necessary to draw a distinction between the injury caused by the wrongful act and what may be described as the effect of the said injury. It is only in regard to acts which can be properly characterized as continuing wrongs that S.23 can be invoked. Where the wrongful act complained of amounts to ouster, the resulting injury to the right is complete at the date of the ouster and so there would be no scope for the application of S.23 in such a case.” This plea of the learned counsel for the appellants also cannot be accepted as in the present case it is proved on record that in the previous litigation the plaintiff/respondent was not made party. It was pleaded and proved by the plaintiff/respondent that his possession was sought to be threatened prior to the filing of the suit when the property was locked and an attempt was made to interfere in the management of the plaintiff. The RSA No.362 of 1980 16 learned court further held that the plaintiff continued to be in possession of the property as numbers of rooms were constructed by Brahmanan Sabha. It may be noticed that the learned lower appellate court rightly held that relief claimed by the plaintiff was for restraining the defendants from interfering in the management of the trust in violation of the deed of dedication which was continuing cause of action and therefore, the suit could not be said to be barred by limitation. Learned counsel for the appellants also contends that the suit as framed was not maintainable as the plaintiff in the pleadings had categorically mentioned that it was a public trust and therefore, the suit as framed was barred under section 92 of the Code. This contention also cannot be accepted. The plaintiff was not claiming breach of any express or constructive trust created for public purpose of charitable or religious nature. No directions of the court were sought for administration of trust. Rather the plea raised was that in the deed of dedication the management was with defendant No.5 or descendants of Devi Sahai and the suit filed was for declaration with consequential