RSA No.2003 of 1985 -1- IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No.2003 of 1985 Date of Decision : 31.03.2011 Rattan Singh .......Appellant Versus Sadhu Singh and others .......Respondent CORAM:- HON'BLE MR. JUSTICE JITENDRA CHAUHAN Present: Mr. G.S. Jaswal, Advocate, for the appellant. Mr. G.S. Punia, Advocate, for the respondents. **** JITENDRA CHAUHAN, J. This regular second appeal is against the judgment and decree dated 29.08.1983, passed by the learned Additional District and Sessions Judge, Ludhiana, whereby the appeal of Sadhu Singh and others against the judgment and decree dated 8.8.1978, passed by the learned Sub Judge, First Class, Ludhiana, was accepted and the suit of the plaintiff for possession of land measuring 90 kanals 6 marlas was decreed in favour of the plaintiff, Rattan Singh. 2. The plaintiff filed a suit for possession of the land measuring 90 kanals 6 marlas situated in Village Madnipur, Tehsil and District Ludhiana, on the ground that one Gulab Kaur, widow of Magha Singh, gifted her house to the Gurudwara Sahib, Madnipur. RSA No.2003 of 1985 -2- The gift was accepted by Gujjar Singh being the Mohitmim of the Gurudwara Sahib. The said Gulab Kaur also made a Will on 01.06.1964, regarding her agricultural land measuring 90 kanal 6 marlas in favour of the Gurudwara Sahib. One Mangal Singh, also made a Will dated 01.01.1964 in favour of the said Gurudwara Sahib, i.e. ‘Guru Ghar’, which was upheld upto this Court in regular second appeal No.1319 of 1966 vide judgment dated 06.10.1972. 3. Piara Singh, the nephew (sister’s son) of the testator, Mangal Singh, took forcible possession of the land from said Gujjar Singh, the Mohitmim. Gujjar Singh filed a civil suit for possession of the land through one Rattan Singh, a Sewadar of Gujjar Singh. The said suit was decreed. Gujjar Singh appointed Rattan Singh, the plaintiff, as the Mohitmim of Gurudwara Sahib, Madnipur, vide Will dated 04.06.1968. The Will was executed voluntarily, with his free- will and in sound disposing mind. It was a registered Will. On 17.03.1969, Gujjar Singh also executed a General Power of Attorney in favour of Rattan Singh, the plaintiff, regarding the management and administration of the Gurudwara Sahib, Madnipur, and the land attached to it. 4. Gujjar Singh died on 08.08.1974. His Bhog ceremony was performed on 13.08.1974 in which Rattan Singh was given ‘Saropa’ before a large congregation and in pursuance of the Will, he started managing the property and the Gurudwara Sahib. 5. It is also alleged that on 12.08.1974, a committee was formed by a group of villagers to control the Gurudwara Sahib and the property attached therewith. The formation of the committee was RSA No.2003 of 1985 -3- challenged in the plaint. A suit for declaration and permanent injunction was filed by the plaintiff against defendants No.1 to 7. 6. During the trial of the said suit, both the parties agreed to the spot visit by the Court with the understanding that the control of the Gurudwara property may be vested in the person, found to be in possession of the Gurudwara Sahib during the spot inspection. In view of the consent and statements of the learned counsel for the parties, the learned Civil Judge visited the spot and found defendants No.1 to 7 in possession of the Gurudwara Sahib, Madnipur, and therefore, the suit of Rattan Singh, the plaintiff, was dismissed vide judgment dated 01.03.1978, which was dismissed by the learned Sub Judge, First Class, Ludhiana, on the sole ground that as the plaintiff was not found to be in possession of the suit land, so, the suit for declaration and injunction was not maintainable in that form. Hence the plaintiff filed this suit for possession. 7. The defendants alleged that the present suit was not maintainable, same being hit by the principle of estoppel and res judicata. On merits, it was admitted that Gulab Kaur and Mangal Singh, donated the suit land to the Gurudwara Sahib, Madnipur. It was also admitted that Gujjar Singh died on 08.08.1974. It was alleged that Gujjar Singh was merely a Granthi as he used to perform religious ceremonies in the Gurudwara Sahib and was neither the Mohitmim of the Gurudwara Sahib nor was managing the property attached to the Gurudwara Sahib. It was further alleged that Rattan Singh, plaintiff, was not a disciple of the Granthi, Gujjar Singh. The execution of the will by the said Gujjar Singh in favour of Rattan RSA No.2003 of 1985 -4- Singh was also denied. It was alleged that after the death of Gujjar Singh, the villagers convened a meeting on 12.08.74, wherein it was decided that defendants No.1 to 7, would form a committee under the presidentship of defendant No.1, who would control and manage the Gurudwara Sahib, Madnipur. Since then, the Gurudwara Sahib and the land are in possession and management of the Gurudwara Committee. Mutation No.694 was cancelled on 28.11.1974, regarding the mohitmimship/ managership of the Gurudwara Sahib. 8. From the pleadings of the parties, the following issues were framed. 1. Whether the suit is barred under the principle of res judicata ? OPD 2. Whether the plaintiff is estopped by his act, conduct, admission and decision of Civil Court dated 1.3.1978 from filing the present suit ? OPD. 3. Whether the suit is barred under Order 2 Rule 2 CPC ? OPD. 4. Whether the suit is barred under Section 92 CPC ? OPD. 5. Whether the plaintiff is Mottimin of Gurudawara Sahib Madnipur ? OPP 6. Whether the plaintiff has locus standi to file the present suit ? OPP 7. Whether Gujjar Singh deceased executed a valid will dated 4.6.68 in favour of the plaintiff. If so, to what effect ? OPP. RSA No.2003 of 1985 -5- 8. Whether the plaintiff is entitled to the possession of suit land ? OPP. 9. Relief. 9. After perusing the documentary and oral evidence adduced by the parties, the suit of the plaintiff, Rattan Singh, for possession of land measuring 90 kanals 6 marlas was decreed vide judgment and decree dated 31.07.1981. 10. Defendants No.1 to 7 went in appeal before the learned First Appellate Court, which was accepted vide judgment dated 4.03.1985, and the judgment and decree dated 31.07.1981 of the Sub Judge I Class, Ludhiana, was set aside dismissing the suit of Rattan Singh, plaintiff. 11. Hence, the plaintiff-Rattan Singh, came up in this regular second appeal. 12. Shri G.S. Jaswal, learned counsel for the appellants assailed the findings of the learned First Appellate Court. The status of Gujjar Singh was that of a Mohitmim and Manager and not of a Granthi. He further submits that the defendants, the so-called Managing Committee, has no right, title or interest in the Gurudwara Sahib and they are strangers and trespassers. They have no right to retain the possession of the property as fully described in the head- note of the plaint. The plaintiff was illegally and forcibly dispossessed by unauthorized persons and therefore, the plaintiff is entitled to be put in possession. 13. Shri G.S. Punia, learned counsel for the respondents, argued that the suit is barred by the principle of res judicata as the RSA No.2003 of 1985 -6- plaintiff, Rattan Singh, is estopped by his own act and conduct from filing the present suit. It is further argued that the suit is also barred by the provisions of Order II Rule 2 of the Code of Civil Procedure. It is further argued that the plaintiff has no locus standi to file the suit and entitled to the possession of the suit land. The authority of Gujjar Singh to appoint the Mohitmim by testamentary document is also challenged. It is further argued that the committee is in possession and control of the Gurudwara Sahib and the property attached therewith. The counsel prays that the suit of the plaintiff was rightly dismissed by the learned First Appellate Court. The counsel further submits that the suit is barred under the provisions of Section 92 of the CPC, as no leave of the Court has been obtained. 14. I have heard the learned counsel for the parties and perused the record with their able assistance. 15. The only questions for consideration are that: 1. Whether the Mohitmim has a right to execute a Will and appoint his successor ? 2. Whether the provisions of Section 92 of CPC are applicable in the present suit and sanction to file civil suit for the removal of the Mohitmim appointed under the Will is necessary before the filing of the suit or not ? 3. Whether the Committee, which was not in existence during the life time of Mohitmim, in whose favour gift was made, can remove the successor appointed by the said Mohitmim ? RSA No.2003 of 1985 -7- 4. What is the effect of consent decree dated Exhibit P/2=Exhibit D.16 ? 16. Section 92 of the CPC reads as under:- “92. Public charities.-(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate- General, or two or more persons having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentious or not, in the principal Civil Court or original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part or the subject-matter or the trust is situate to obtain a decree- (a) removing any trustee; (b) appointing a new trustee; (c) vesting any property in a trustee; [(cc) directing a trustee who has been removed or a person who ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;] (d) directing accounts and inquiries; RSA No.2003 of 1985 -8- (e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust; (f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged; (g) settling a scheme; or (h) granting such further or other relief as the nature of the case may require. (2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863), or by any corresponding law in force in the territories which, immediately before the 1st November, 1956, were comprised in Part B States, no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section. (3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature an allow the property or income of such trust or any portion thereof to be applied cy pres in one or more of the following circumstances, namely:- (a) where the original purposes of the trust, in whole or in part,- RSA No.2003 of 1985 -9- (i) have been, as far as may be, fulfileed; or (ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or (b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or (c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or (d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or (e) where the original purposes, in whole or in part, have, since they were laid down,- (i) been adequately provided for by other means, or RSA No.2003 of 1985 -10- (ii) ceased, as being useless or harmful to the community, or (iii) ceased to be, in law, charitable, or (iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.” 17. In this suit, a validly-appointed trustee is seeking relief for possession of the land of charitable trust from the strangers. The defendants are not trustees. A suit to establish a personal right by the nominated trustee does not fall within Section 92 of the CPC. No leave of the Court is required in this case. In the case of O. Rm. O.M. Sp. Firm Vs. P.L.N.K.M. Nagappa Chettiar and anothers, AIR 1941 PC1, Hon’ble the Privy Council has observed as under:- “16. It was suggested in the course of argument that the suit should only have been brought with the consent of the Advocate-General under Section 92, Civil P.C., but their Lordships think it clear that no such consent is necessary in order that a trustee may recover trust property in the hands of a stranger to the trust……” 18. In para no. 20 of the Apex Court judgment in Profulla Chorone Vs. Satya Choran, AIR 1979, SC 1682, it was held as under:- “Before dealing with these contentions, it will be appropriate to have a clear idea of the concept, the legal character and incidents of Shebaitship. RSA No.2003 of 1985 -11- Property dedicated to an idol vests in it in an ideal sense only; ex necessitas, the possession and management has to be entrusted to some human agent. Such an agent of the idol is known as Shebait in Northern India. The legal character of a Shebait cannot be defined with precision and exactitude. Broadly described, he is the human ministrant and custodian of the idol, its earthly spokesman, its authorized representative entitled to deal with all its temporal affairs and to manage its property. As regards the administration of the deubtter, his position is analogous to that of a Trustee; yet, he is not precisely in the position of a Trustee in the English sense, because under Hindu Law, property absolute dedicated to an idol, vests in the idol, and not in the Shebait. Although the debutter never vests in the Shebait, yet, peculiarly enough, almost in every case, the Shebait has a right to a part of the usufruct, the mode of enjoyment and the amount of the usufruct depending again on usage and custom, if not devised by the founder.” 19. It is well settled law that when the findings of the First Appellate Court are contrary to the record, based on surmises and a grave injustice has been done to the party by not rightly interpreting the facts of the case, it is always open to this Court in regular second appeal to reappraise the findings and correct the findings of fact erroneously recorded and to do justice. In D.R. Tathna Morthy Vs. RSA No.2003 of 1985 -12- Ram Appa, (2011) 1 SCC 162, Hon’ble the Apex Court has held as under:- “9. Undoubtedly, the High Court can interfere with the findings of fact even in the second appeal, provided the findings recorded by the courts below are found to be perverse i.e. not being based on the evidence or contrary to the evidence on record or reasoning is based on surmises and misreading or the evidence on record or where the core issue is not decided. There is not absolute bar on the re-appreciation of evidence on those proceedings, however, such a course is permissible in exceptional circumstances.” 20. To find out the answer of above question No.1, 3 and 4, this Court minutely perused the documents Exhibit PW2/A, Will of Gujjar Singh; Ex. P3, the Will made by Gulab Kaur in favour of Guru Granth Sahib; Exhibit P4, Power of attorney executed by Gujjar Singh in favour of Rattan Singh, plaintiff and Exhibit P5, Will of Smt.Gulab Kaur appointing Gujjar Singh as granthi, to find out the real intention and purpose of the founder for which the Trust was created. The object and intention of Smt. Gulab Kaur in executing the Will is to be gone into in order to find out the answer to the question No.1. This Court shall not venture in taking a view which goes contrary to the intended purpose and intention with which the trust was created. It is the intention and wishes of the founder which shall prevail and the Court ought not go contrary to it. The devolution of the Trust depends upon the terms of the documents upon which it was created. Such RSA No.2003 of 1985 -13- devolution should not be inconsistent with or oppose to the purpose which the founder had in his view while creating the Trust. In the present case, taking the documents as a whole it is clear that none except the testamentary nominated person has right to carry on the worship and to manage the Gurduwara Sahib and the property attached thereto. 21. Exhibit PW2/A is certified copy of the Will executed by Gujjar Singh through which he nominated Rattan Singh as the Mohitmim to look after and serve Gurduwara Sahib. Exhibit P4 is certified copy of general power of attorney executed by Gujjar Singh in favour of the plaintiff, Rattan Singh, to look after the property of Gurduwara Sahib. Exhibit P3 is certified copy of Will dated 2.7.1963, registered on 4.7.1963, executed by Smt.Gulab Kaur creating Gurudwara Sahib in her house. In this Will, she appointed Gujjar Singh to worship Sri Guru Granth Sahib placed in her house which was converted into the Gurudwara Sahib. Exhibit P5 is a Will of Smt. Gulab Kaur dated 3.4.1963, vide which she bequeathed her agricultural land to newly created Gurudwara Sahib and also appointed Bhai Gujjar Singh to worship Sri Guru Granth Sahib. Smt.Gulab Kaur had faith in Gujjar Singh, therefore, she appointed him as Mohitmim to look after the affairs of Gurudwara Sahib. Sh. Mangal Singh also created a trust bequeathing his entire property to Gurudwara Sahib and appointed Gujjar Singh as Mohitmim, vide Will dated 1.4.1964. Till 8.8.1974, there was no trouble, when Gujjar Singh, during his lifetime, had been worshiping and looking after the affairs of the Gurudwara Sahib Madnipur and property attached RSA No.2003 of 1985 -14- thereto. At the time of his Bhog Ceremony on 13.8.1974, Rattan Singh plaintiff was given Siropa by a large congregation of villagers, and on the basis of Will executed by Gujjar Singh, he (Rattan Singh) started managing the affairs of Gurudwara Sahib and the property attached thereto. A group of villagers on 12.8.1974 formed a self-styled management committee and took forcible possession from Rattan Singh, the plaintiff. The plaintiff approached the Court and filed a civil suit against the so called Management Committee, but the suit was dismissed on the ground of maintainability as Rattan Singh had already been ousted from the possession of the Gurudwara Sahib. The so-called Committee has no constitution, rules or regulations. It is an unregistered committee having no legal sanctity attached to it. The very formation of the Committee is void and its object was to take illegal possession from a lawful authorised person. Thereafter, the present suit was filed which was decreed, and in appeal the judgment was reversed. If Rattan Singh, plaintiff, is not considered to be the legally appointed Mohitmim, even then the so called Committee has no right to manage the affairs of the Gurduwara Sahib. In case, Gujjar Singh died without appointing any Mohitmim, the heirs of the Trustees had a right to manage the affairs or to nominate the Mohitmim. But in this case, the Will, Exhibit PW2/A, clearly proves that Gujjar Singh during his life time nominated Rattan Singh as Mohitmim. It has also come in evidence that on Bhog Ceremony of Gujjar Singh, a large gathering of the followers appointed Rattan Singh as the Mohitmim. The Exhibit D1 to D8, which are the proceedings of so-called Management Committee, have no relevance RSA No.2003 of 1985 -15- with the case because the Committee is unregistered, without constitution and without rules and regulations. Neither Mangal Singh nor Smt.Gulab Kaur in their testaments authorised any villager or a group of villagers to form a committee to manage the affairs of Gurudwara Sahib. So the formation of the Committee is inconsistent with the real intention and object of gifting the land by the Donors i.e. Mangal Singh and Gulab Kaur. Exhibit PW9/A, proves that Mahant Rattan Singh had got electric connection of Gurduwara Sahib, which proves the fact that he was in peaceful possession of the Gurduwara Sahib at one time. Thus, it is abundantly clear that Gujjar Singh, the deceased, executed a Will, Exhibit PW2/A, appointing Rattan Singh, the plaintiff, as Mohitmim and also executed a power of attorney, Exhibit P4. 22. Neither Mangal Singh nor Gulab Kaur had created any bar to nominate a Mohitmim by Gujjar Singh Mohitmim. From the perusal of Ex. P-5, the intention of Gulab Kaur is abundantly clear, “Mohitmim Gujjar Singh has no right to alienate the donated property by me. He will manage the Gurudwara Sahib.” So, her initial intention was to appoint Gujjar Singh as Mohitmim. 23. Thus, on one side is Rattan Singh, the plaintiff, who was duly nominated by Gujjar Singh, the original Mohitmim and on the other side, there are certain persons, who clothed themselves with the status of a Managing Committee without any legal sanctity. The equity in such a situation will be in favour of the plaintiff and against the unauthorized self-proclaimed committee. The findings of the First Appellate Court that Gujjar Singh did not have any right to appoint RSA No.2003 of 1985 -16- any person to act as Mohitmim after his death is erroneous. The nomination of Rattan Singh, the plaintiff, by Gujjar Singh cannot be said to be beyond the powers of Gujjar Singh. Mangal Singh and Gulab Kaur appointed Gujjar singh as Mohitmim, and Gujjar Singh will be treated as trustee for all intents and purposes. Keeping in view the intention and purpose of the trust, Gujjar Singh was not forbidden from further nominating a Mohitmim, and thus, he had the implied power in the absence of a specific bar, to appoint Rattan Singh, as Mohitmim of Gurudwara Sahib, Madnipur, and the properties attached thereto, after his death. 24. Keeping in view the above discussion, it is held that Constitution of so called Managing Committee is void ab initio. It came into existence without any authority. No one from amongst the heirs of Mangal singh or Gulab Kaur came forward to appoint any Mohitmim. So the defendants or so called the Managing Committee has no right to control and manage the affairs of Gurudwara Sahib, Madnipur and the property attached thereto. 25. In para 18 of the judgment dated 04.03.1983 of the learned Additional District Judge, Ludhiana, it has rightly been held that neither there is estoppel nor there is any res judicata nor any cross-objections were filed by the respondents to challenge these findings. 26. Mr. Punia cites ruling ‘Ravinder Singh versus of State of Assam-AIR 1999 Supreme Court 3571’ and argued that the filing of the cross-objection after 1976 Amendment in the Code of Civil Procedure is not mandatory and the respondent can question adverse RSA No.2003 of 1985 -17- findings without filing cross-objections. He further argued that order of Sub Judge Ist Class, Ludhiana and decree-sheet, both dated 01.03.1978, Ex.P-1/ Ex.D-15 and Ex.P2/Ex.D-16 are final which bind the parties, and none of them can re-agitate the matter, and it operates as