RSA No. 1457 of 2006 1 IN THE HIGH COURT OF PUNJAB AND HARYANA AT CHANDIGARH RSA No. 1457 of 2006 Decided on : 05-02-2009 Shree Niwas and another ....Appellants VERSUS Kanhiya Lal and others ....Respondents CORAM:- HON'BLE MR. JUSTICE MAHESH GROVER Present:- Mr. Arun Jain, Senior Advocate with Mr. Amit Jain, Advocate for the appellants. MAHESH GROVER, J This is plaintiff's regular second appeal directed against the judgements of the learned Trial Court dated 21.12.1999 and that of the First Appellate Court dated 19.12.2005. The plaintiffs-appellants filed a suit for declaration and mandatory injunction A declaration was sought by the predecessor-in-interest of the appellant namely Bansi Dhar Acharya to the effect that he alongwith several other persons who were arrayed as respondent nos. 7 to 20 in the suit were owners in possession of the suit property, which was fully described in the schedule attached to the plaint i.e. (a) temple known as Acharya temple of Lord Shri Rang Nath ji, siutated in Lohar Bazar, Bhiwani; (b) four shops attached with the temple; (c ) Bagichi with room, tibari, kitchen, kotheri, diggi and garden; and (d ) agricultural land measuring 43 kanals 2 marlas situated in patwar circle of Bhiwani Lohar, Bhiwani. RSA No. 1457 of 2006 2 The dispute was regarding the properties mentioned at item no. (a) and (b). It was pleaded that a trust deed dated 30th July, 1969 established by respondent nos. 1 to 5 in the name of Shri Rang Nath Ji Mandir Trust being represented by the said respondents as trustees is illegal and not binding upon his rights. Relief for mandatory injunction was sought to the effect that respondent nos. 1 to 6 be directed to restore all the benefits of the properties having been received by them. It was pleaded in the suit that the plaintiff-appellant belongs to Acharya family and othe other respondents who are arrayed as defendant nos. 7 to 20 in the suit were related to him. As per the pedigree table which is attached as Annexure C, predecessor-in-interest of the plaintiff and proforma defendants were owners in possession of these properties. It was pleaded that the land under the temple was a gift to their predecessor in interest namely Shri Ram Saran Dass, Ram Narain and Ram Parshad Acharya by the owners of the property and since they were the decendants of the beneficiaries of the gift deed i.e. Shri Ram Saran Dass, Ram Narain and Ram Parshad Acharya, the respondents were in unauthorised possession of the same. It was next pleaded that the plaintiff Gopi Ram and Ram Kumar had earlier filed a suit on 4.7.1969 titled as 'Gopi Ram & others versus Nand Kishore & others' claiming that the suit property was trust property. This suit was decided on 22.2.1980 and a preliminary issue regardings the maintainbility of suit was decided in favour of the appellants. The other two issues which were as follows:- (i)Whether the Trust in dispute is a public charitable and religious Trust? (ii)Whether the applicants are interested in the said Trust? RSA No. 1457 of 2006 3 were decided in favour of the appellants and against the present respondents and it was held as under:- “Para no. 30 From the above witnesses of the petitioners it is clear that all of them have stated:- i) that the temple was founded by Sheonath Ji and Sheoji Ram; ii)that they had appointed Kulshekhar and Ghanshayam Dass Acharyas as the Pujaris; iii)that no salary was paid to the Acharyas and they colleccted the offerings of the temple and rent from the two shops whereas the remaining two shops were in possession of V. Acharya Advocate and Harish Acharya without payment of any rent; iv)that the Acharyas never rendered any account to any one; v) that the decendants of Ghanshayam Dass Acharya and Kulshekhar Acharya were performing Puja and collecting the return from the temple and other property of the temple turn by turn according to their mutual settlement; vi)that prior to the birth of Ex. A/1 there was no document of Trust; vii)that the temple was open to general public. From the trend of the cross-examination of these RSA No. 1457 of 2006 4 witnesses, the case of the respondents is that the temple was created by their ancestors and they were the owners of the temple and its properties. Para No.39 From the evidence on record, it is also established that the defendants of Ghanshayam Dass and Kulshekhar Ji are the Pujaris of the temple. They are in possession of the temple building and the 2 shops through tenants. It is also evident that they are performing the Puja in the temple and realising the rent from 2 tenants and also receiving the Charhawa and the other offerings from the temple according to their turns as settled in between the successors of Ghanshayam Dass and Kulshekhar Dass Ji. They certainly have Pujaris rights in the temple. They never maintained any accounts nor did they render any accounts to anybody. The petitioners never realized any rent of the shops or collected the offerings made in the temple. The Pujaris are managing the affairs of the temple and its properties. The present petition was instituted on 4.7.1969. The trust deed Ex. A/1 took birth on 30.7.1979 i.e. during the pendency of this petition. At the time of the institution of the petition there was no trust deed in writing although a public trust of charitable and religious nature had already been founded by Sheonath Mal Ji and Sheoji Ram, the ancestors of the petitioners and Kulshekhar and Ghanshayam Dass were Pujaris o the temple of the trust. From the previous acts and conduct of the parties, it is evident that neither Ghanshayam Dass or RSA No. 1457 of 2006 5 Kulshekhar nor their ancestors maintained or rendered any accounts to anybody. The turns as contained in trust deed Ex. A/1 could provide cause of action on the date of the institution of the present petition i.e. 4.7.1969 to claim rendition of accounts from the respondents. I am, therefore, of the considered view that on the day of institution of the petition i.e. 4.7.1969 the petitioners had no cause of action against the respondents for filing the petition and that being so the very base i.e. the “cause of action” having been knocked out. I have no other alternative except to dismiss the suit, although issues No. 1 and 2 have been decided in favour of the petitioners. In view of my discussion under issue No. 3 of Relief this fails and is hereby dismissed.” It was held that Trust was created in the year 1979 by the predecessor in interest during the pendency of the suit and on that basis of it was pleaded by the plaintiff-appellant that during the pendency of the previous litigation a Trust deed dated 30.7.1979 was created in the name and style of Shri Rang Nath Ji Mandir Trust and that the respondents started claiming themselves to be the trustees and grab the property of the Mandir. Parties who were arrayed as defendant nos. 8, 9, 12, 13 and 15 filed their joint written statement and admitted the claim by the plaintiffs- appellants in toto. Nand Kishore who was arrayed as proforma respondent no. 20 also submitted to the identical pleadings of defendant nos. 1 to 4. It was pleaded that temple was founded by Sheoji Ram and Sheonath Ji while Kulshekhar and Ghanshayam Dass were appointed as its Pujaris. They were entitled to receive the Chahrawas and hold the office of Pujaris. Plaintiff RSA No. 1457 of 2006 6 Bansidhar was one of the decendants of Ghanshayam Dass Acharya while Shri Sheoram and Sheonath Ji were fore-fathers of defendants Gopi Ram, Shree Kishan and Lakshmi Niwas, trustees of the Trust who have dedicated the suit property in the name of Shri Rangnath Ji. The temple and four shops were constructed and a public,religious and charitable trust continued to exist. It was pleaded that the same was being managed by them as decendants of Sheoji Ram and Sheonath Ji and Gopi Ram. The filing of the earlier suit and findings therein were admitted. The acquisition of some of the property by the Improvement Trust was also admitted. It was next pleaded that the contesting defendants had filed a civil suit no.43 of 1997 by Gopi Ram and other trustees against Mange Ram for land measuring 3 kanals 12 marlas it was decreed and it was held therein that the suit property belonged to the Idol and decendants of Kulshekhar and Ghanshayam Dass were only Pujaris and the plaintiff had no locus standi and was estopped from filing the suit. Lastly, it was pleaded that neither the plaintiff nor the persons who were arrayed as proforma defendants were owners of the suit property. It was never built by the predecessor in interest of the appellant and that the gift deed by the owners of the property was in favour of the Mandir and not in favour of the individuals as has been claimed by the appellants. Both the parties went to trial on the following issues:- 1. Whether the plaintiff and proforma defendants No. 7 to 20 are the owners and in possession of the property in dispute? OPP. 2. Whether the trust constituted by defendants No. 1 to 5 is illegal and has no concern with the property in dispute? OPP. RSA No. 1457 of 2006 7 3. Whether Sheo Raj, Sheoji Ram and Sheo Nath founded the trust and built the temple, if so its effect? OPD. 4. Whether idol Rangnath Ji is owner of the property and the same is being managed by the trustee? OPD. 5. Whether suit is not maintainable in the present form? OPD. 6. Whether plaintiff is estopped from filing the present suit by his act and conduct? OPD. 7. Whether suit is bad for non-joinder of necessary parties? OPD. 8. Whether the suit is barred by the principle of resjudicata, as alleged? OPD. 9. Whether suit has not been properly valued for the purposes of court fee and jurisdiction? OPD. 10.Whether the plaintiff has no locus standi to bring the suit? OPD. 11.Relief. Both the Courts concluded that in the earlier suit the following findings were recorded:- i) that Sheoji Ram and Sheonath Mal, the ancestors of the petitioners are proved to be the authors of the trust; ii)that the intention to create a trust is evident with certainty from the acts and conduct of the founders in general and from the judgment and decree Ex. A.5 and A.6 on the basis whereby Gopi Ram petitioner had received the compensation amount in capacity of his being a trustee; iii)that the purpose of the trust is also evident that the founders RSA No. 1457 of 2006 8 and their descendants were the followers God Rangnath Ji and that they wanted to propagate the ideas of the said religious thought and to provide a temple for general public to meditate in the temple; iv)the property of the trust is very well specified which includes a building of the temple, a Bagichi along with the rooms and the Diggi, four shops and agricultural land measuring 26 Bighas 4 Biswas situated in the area of village Lohar, Bhiwani. v) The beneficiaries of the trust are the public at large it was also held that the trust in dispute is a public trust of charitable and religious nature and the petitioners, who are now the contesting defendants are the founders of the trust” It was thus concluded that the Public Charitable Trust continued to exist and that the plaintiffs-appellants had no right to claim property of the Trust. It was further held that the respondents were only the Pujaris and were using the Chahrawas and other offerings for the management of the Trust. Both the Courts also concluded that the appellant was precluded by his own act and conduct as he had earlier filed the suit and the judgment and decree dated 31.7.98 was not specifically challenged. The suit was accordingly dismissed by both the Courts below. Learned counsel for the appellant while arguing before this Court in regular second appeal primarily raised a contention that the gift deed of the year 1859 was in the name of three persons i.e. Shri Ram Saran Dass, Ram Narain and Ram Parshad Acharya who were their predecessor in RSA No. 1457 of 2006 9 interest and in view of the gift deed they became the owners of the property. A translated copy of the gift deed was also produced before this Court, which is taken on record. No other point was raised. After hearing learned counsel for the appellants and perusing the impugned judgments and the gift deed, I am of the considered opinion that the contention raised by the learned counsel for the appellants is totally mis-placed. A perusal of the gift deed reveals that it was made in the name of Thakur Rang Ji Maharaj and not gifted to individuals as has been pleaded by the learned counsel for the appellant. The relevant extract of the gift deed is extracted hereunder:- “we, without pressure and with consent, with conscious mind and health, without temptation, alurement for constructing Pacca Well and Baag Tibari to Thakur Rang Ji Maharaj and gifted to Ram Parshad, Ram Saran Dass, Ram Narain son of Shri Krishan Dass Ji son of Shri Sukhdas ji Brahmin, resident of Town Pundari, area Jind, siutated at Town Bhiwani and Pujari Mandir Shri Rangnath Ji Maharaj.” It is clear therefore that the property was gifted to the Mandir and right since then it has continued to exist as a Public Charitable and Religious Institution for which the respondents who were Pujaris were performing the essentials. The trust deed was created subsequently in the year 1979. In this view of the matter, the concurrent and consistent findings to the aforesaid effect as determined by both the Courts below as also the findings recorded in the prior suit, the impugned judgments cannot be said to be based on perverse findings. RSA No. 1457 of 2006 10 No substantial question of law arises in the present appeal in view of the above and the findings being not perverse, hence, no interfernce is warranted in the present appeal and the same being devoid of any merit is hereby dismissed. February 5 , 2009 (Mahesh Grover) rekha Judge