RSA No.4637 of 2009 (O&M) 1 IN THE HIGH COURT OF PUNJAB & HARYANA, CHANDIGARH R.S.A. No.4637 of 2009 (O&M) Date of Decision: December 14, 2009 Mahant Rattangiri .........Appellant Versus Chairman Indian Red Cross Society and others. ..........Respondents Coram: Hon'ble Mrs. Justice Sabina Present: Mr.O.P.Sharma, Advocate for the appellant. ** Sabina, J. Plaintiff-Bhawani Shankar Chela Swami Shankar Maaran Chela Vidya Sagar Maaran filed a suit for declaration and permanent injunction. The said suit of the plaintiff was dismissed by the Additional Civil Judge (Senior Division) Khanna vide judgment and decree dated 31.3.2008. Aggrieved by the same, the plaintiff filed an appeal and the same was dismissed by the District Judge Ludhiana vide judgment and decree dated 25.2.2009. Hence, the present appeal by the plaintiff. The case of the parties, as noticed by the learned Additional District Judge, in paras 3 to 5 of its judgment reads as under:- “ 3. Brief facts of the case are that the plaintiff is owner in possession of land measuring 1 kanal 11 marlas as fully RSA No.4637 of 2009 (O&M) 2 delineated in the head note of plaint. There is temple of Hanuman Ji in said land and some shops are also constructed there upon and the plaintiff is looking after and managing the same. In the month of June, 1996, one Amar Nath Verma started abusing the plaintiff by coming to his Ashram. Then he approached, SDM Khanna to lodge a complaint, who directed him to come present with a written complaint. Thereafter, plaintiff went to Ramesh Kumari Modi, Deed Writer, Khanna (defendant No.7), who said that he will get it registered in his register. The other witnesses i.e. Gauri Shanker (defendant No.9) and Namberdar Lakhmir Singh (defendant No.8) were called by said Deed writer. The plaintiff is an old man of 92 years of age and having weak eye sight and cannot hear properly. The said persons got signatures of the plaintiff by mis-representing and fraud on the said Hibbanama by mis-stating the same to be the complaint of the plaintiff. The plaintiff used to lodge a complaint against Mr.Amar Nath Verma with SDM Khanna who is also Chairman of Indian Red Cross Society, Branch Khanna and he took the plaintiff into confidence. The other defendant No. 7 to 10 are men of the defendants No.1 and 2. The defendant No.2 by exercising fraud upon the plaintiff with the assistance of his own men created a deed (Hibbanama) in respect of the land in dispute. The plaintiff never intended to execute and get registered any Hibbanama of the property in question to the defendant No.1 nor he had any necessity to do the same. The plaintiff has no right or capacity and authority to alienate or dispose off in any manner whatsoever the property in RSA No.4637 of 2009 (O&M) 3 question. On 6.12.1996, defendant No.2 told the plaintiff that he has given the land to him by way of said deed and he has given the land to him by way of said deed and he was required to take over possession of the same to defendant No.1. Thereafter, the plaintiff made enquiries and came to know regarding the alleged deed dated 1.7.1996. The plaintiff also came to know that defendant No.2 in collusion with the revenue authorities have got their name mutated in respect of the suit property at back of the plaintiff. The plaintiff requested the defendant No.2 to treat the said Hibbanama as illegal, wrong, null and void abinitio, but the defendants paid no need to genuine request of the plaintiff and flatly refused to admit the claim of plaintiff. Hence this suit. 4.Having entered appearance defendants No. 1 and 4 filed joint written statement, inter alia pleading that no notice under Section 80 CPC was served upon answering defendants, as such the suit is not maintainable. The plaintiff with his free consent, executed gift deed regarding property in dispute. At the time of execution and registration of the gift deed, plaintiff delivered possession of the suit property to the Chairman, Indian Red Cross Society, Branch Khanna, District Ludhiana. The gift deed was duly witnessed and attested by the Sub Registrar Khanna on 2.7.2006. The plaintiff signed the gift deed in presence of Sub Registrar, Khanna. Denying all other averments specifically it is prayed that suit of the plaintiff may be dismissed. 5.Defendants No. 7 to 9 filed their separate written statement, inter alia, pleading that suit is bad for mis-joinder of necessary RSA No.4637 of 2009 (O&M) 4 parties. On 1.7.1996 plaintiff requested the defendant No.7 to scribe a gift deed in favour of Indian Red Cross Society, Branch Khanna, who scribed the gift deed in presence of Namberdar Lakhmir Singh and Gauri Shanker witnesses. The witnesses defendants No. 8 and 9 were called by plaintiff. After scribing the gift deed dated 1.7.1996 contents of the same were read over and explained to the plaintiff in presence of the witnesses, who after admitting the same to be correct signed the same in presence of witnesses. Deed writer entered the contents of the gift deed in his register. There also the parties and witnesses put their respective signatures. Then the parties along with the witnesses appeared before Sub Registrar, Khanna who read over the contents of the same to the parties in presence of the witnesses. The parties and witnesses put their signatures on gift deed in presence of Sub Registrar. Ultimately, it is prayed that suit of the plaintiff may be dismissed.” On the pleadings of the parties, the following issues were framed by the trial Court:- “1.Whether plaintiff is entitled to declaration, as prayed for?OPP 2.Whether plaintiff is entitled to permanent injunction as prayed of?OPP 3.Whether the suit is not maintainable?OPD 4.Whether the suit is not properly valued for the purpose of Court fee and jurisdiction?OPD 5.Whether suit is barred under Section 11 CPC?OPD 6. Relief.” RSA No.4637 of 2009 (O&M) 5 After hearing the learned counsel for the appellant, I am of the opinion that the instant appeal deserves to be dismissed Learned counsel for the appellant has submitted that the plaintiff was the Mahant of the religious Institute and has no power to alienate the suit property by way of gift . In this regard, the learned counsel has placed reliance on Biram Dass vs, Manga Singh and others AIR 1929 Lahore 868(2) wherein it has been held as under:- “Wherein certain property is admittedly endowed property, persons ostensibly in possession for and on behalf of the foundation have no power to make gift of any portion of the property to any one.” Plaintiff-Bhawanti Shankar Chela Swami Shankar Maaran Chela Vidya Sagar Maaran had filed the suit for declaration and permanent injunction that the gift deed dated 1.7.1996 was illegal, null and void. Plaintiff had himself executed the gift deed in favour of the defendants-Society. The gift deed dated 1.7.1996, Exhibit D1 was duly proved on record by the defendants. In the suit, the allegations of the plaintiff was that the gift deed had been got executed from plaintiff- Bhawanti Shankar Chela Swami Shankar Maaran Chela Vidya Sagar Maaran by representing the same as complaint against one Amar Nath Verma. However, the plaintiff had failed to establish the said fact. Rather the defendants had examined the Deed writer who had scribed the gift deed. They have also proved the extract from the register of the Deed writer as Exhibit D3. Gift deed was duly registered on 2.7.1996. Thus, the defendants had been successful in proving the due execution of the gift deed. The plea that the plaintiff Bhawanti Shankar Chela Swami Shankar Maaran Chela Vidya Sagar Maaran was not RSA No.4637 of 2009 (O&M) 6 competent to execute the gift deed, was not pleaded in the plaint. Hence, the trial Court rightly held that the fact whether the plaintiff was competent to gift the property in dispute or not could not be gone into as there was no pleading in this regard. No substantial question of law arises in this regular second appeal which would warrant interference by this Court, Accordingly, this appeal is dismissed. (Sabina) Judge December 14, 2009 arya