1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR :::: JUDGMENT Temple of Thakur Shri Mathuradassji, Chhota Bhandar vs Shri Kanhaiyalal & Ors. S.B. CIVIL FIRST APPEAL NO.232/2005 AGAISNT THE JUDGMENT AND DECREE DATED 19.5.20005 PASSED BY SHRI N.L. MEENA, DISTRICT JUDGE, RAJSAMAND IN CIVIL EXECUTION CASE NO.6/2001 AND Temple of Thakur Shri Mathuradassji, Chhota Bhandar vs Shri Kanhaiyalal & Ors. S.B. CIVIL FIRST APPEAL NO.239/2002 AGAISNT THE JUDGMENT AND DECREE DATED 2.8.2002 PASSED BY SHRI GYAN PRAKASH PANDEY, RJHS, DISTRICT JUDGE, RAJSAMAND IN CIVIL CIVIL ORIGINAL SUIT NO.46/2001 PRESENT HON'BLE MR. JUSTICE PRAKASH TAITA, J. REPORTABLE DATE OF JUDGMENT : 18 February, 2008 Mr.MC Bhoot ] Mr. Vinay Shrivastva] for the appellant. 2 Mr.RK Thanvi ] Mr.MS Singhvi ] Mr.Sandeep Saruparia] Mr.Sudhir Saruparia ] for the respondents. Mr.RR Kanwar, Dy.GA for the respondent-State. BY THE COURT: S.B. Civil First Appeal No. 239/2002 preferred against the judgment and decree of the trial court – District Judge, Rajsamand passed in Civil Original Suit No.46/2001 (3/99) (42/96) dated 24th Oct., 2002 dismissing the suit of the plaintiff -Mandir Thakurji Shri Mathuradassji, Chota Bhandar, Kakroli and three others after holding that the suit is abuse of process of law. S.B. Civil First Appeal No.232/2005 has been preferred to challenge the judgment and decree dated 19th May, 2005 passed by the Court of District Judge, Rajsamand in Civil Execution Case No.6/2001 whereby the appellant's application filed under Oder 21 Rule 97 read with Section 151 CPC was dismissed. Since the matter is related to the same property and issue involved are common question of facts and law, therefore, these both appears are heard together and are decided by this common judgment. The litigation has chequered history. One property 3 was sold by one Krishan Kumar as his personal property to respondent nos. 1 to 6 (in both the appeals) on 18th Dec., 1978. It appears that some of the properties were already let out to State Government and, therefore, the purchasers respondent no.1 to 6 after purchasing the property filed the suit for eviction of their tenants – respondent no.7 to 10 (in S.B. Civil First Appeal No.232/2005) on the ground of personal bonafide necessity etc, which is Civil Original Suit No.29/81. The above suit was dismissed by the court of Addl. District Judge, Rajsamand vide judgment and decree dated 15th Sept., 1990. The respondent nos.1 to 6 aggrieved against the judgment and decree of the trial court dated 15th Sept., 1990 preferred a regular first appeal before this Court, which was registered as S.B. Civil First Appeal No.166/1990. In the first appeal, a written compromise was submitted by both the parties in terms of the order passed by the State Government dated 27th March, 1995. In view of the compromise between the parties, the eviction decree was passed by this Court on 24th May, 1995 against the tenants-respondents and in favour of the plaintiffs-respondents no. 1 to 6. It appears from the compromise dated 27th March, 1995 that the plaintiffs- 4 respondents nos. 1 to 6 agreed to donate one new school building to the respondent-State. It appears that despite of decree for eviction, the judgment-debtor including the State did not hand over vacant possession of the suit premises to the plaintiffs-respondents no.1 to 6, therefore, in the year 2001 plaintiffs submitted execution petition, before the Executing Court, which was registered as Execution Case No.6/2001. During this execution, the plaintiffs gave alternate premises to the State for running school and for that purpose, they also executed a gift deed on 10th May, 2005. On 4.8.2005, the suit premises was vacated. It will be worthwhile to mention here that in the year 1996, one Ishwar Chand Sharma filed one PIL [DB Civil Writ Petition (PIL) No.1323/2006] before this Court. In DB Civil Writ Petition No.1323/1996 projected as PIL, Ishwar Chand Sharma stated that prior to his retirement he was working as Vice Principal in the Government School. The petitioner Ishwar Chand Sharma in the said writ petition prayed for restrained order against the judgment-debtor of Civil Original Suit No.29/81 against shifting the Government School in question from its rented premises to its new building, which was given in pursuance of compromise 5 decree referred above. The above writ petition was dismissed by the Division Bench of this Curt vide judgment dated 1st Dec., 1999 after holding that the petitioner has clearly abused the process of this Court and has tried to stall the vacation of the old building of the school for ulterior motives. The Division Bench also took note of the compromise decree passed by this Cort in S.B. Civil First Appeal No.166/1990 and held that in view of the compromise decree, in execution, the building has to be vacated. Iswhar Chand's above projected public interest litigation writ petition no.1323/1996 was dismissed with the cost of Rs.10.000/- by the Division Bench of this Court vide judgment dated 1st Dec., 1999. SLP was preferred against the judgment of this Court dated 1st Dec., 1999, which was dismissed by the Hon'ble Apex Court on 27th March, 2000. Same Ishwar Chand Sharma and three others in the name of Mandir Thakurji Shri Mathuradassji, Chota Bhandar, Kakroli filed present suit no.46/2001 (3/99) 4296 on 9.8.1996 in the trial court for declaration that property in dispute for which sale deed was executed as back as on 18th Dec., 1978 may be declared to be ownership property of plaintiff no.1-temple and sale deed dated 18th Dec., 1978 6 may be declared illegal, null and void and by sale deed dated 18th Dec., 1978 no right, title accrued in favour of respondent no.1 to 6-defendants nos. 1 to 6. This Court while dismissing the writ petition of Ishwar Chand Sharma (DB Civil Writ Petition No.1323/1996) also took note of pendency of above suit while dismissing the writ petition of the petitioner Ishwar Chand Sharma. In Civil Original Suit No.46/2001, the defendants- respondents-decree holder as well as defendants no. 1 to 6 submitted application under Section 151 CPC for dismissal of the suit filed by the plaintiff with the allegation that the suit is liable to be dismissed as it amounts to abuse of process of court. The respondent nos. 1 to 6 narrated all the facts referred above about passing of the decree in favour of respondent nos. 1 to 6 by the High Court in regular first appeal and donating the school building by the respondent no. 1 to 6 to the State for running the school and Ishwar Chand's effort to put obstruction in the way of shifting of school to the new building by filing frivolous public interest litigation and dismissal of that public interest litigation and dismissal of special leave petition by the Hon'ble Apex Court. The trial court by impugned order 7 dated 2.8.2002 dismissed the suit of the plaintiff holding that the suit is abuse of process of court and liable to be dismissed forthwith. Against the said order of dismissal of plaintiff's appellant's suit no.46/2001(3/99) (42/96) vide judgment and decree dated 2.8.2002 S.B. Civil First Appeal No.239/2002 has been preferred by the plaintiff. In the matter where sale deed was executed on 18th Dec., 1978 an eviction decree was passed in favour of the purchasers by this Court in S.B. Civil First Appeal No.166/1990 on 16th Nov., 1990 and during the pendency of Civil Original Suit No.46/2001 (3/99) (42/96) filed in the year 1996 a public interest litigation was filed for the virtually same relief and which was dismissed by this Court with cost of Rs.10,000/- in the year 1999 and SLP was dismissed by the Hon'ble Supreme Court in the year 2000 and when plaintiff's-appellant's suit was dismissed as frivolous litigation by the trial court on 2.8.2002 then an application under Order 21 Rule 97 CPC in the execution case no.6/2001 was filed on 10th May, 2005 by the persons Inder Mal, Shanker Lal and Navneet. Though the application under Order 21 Rule 97 CPC is in individual names but application for interim relief under Order 21 8 Rule 97 CPC read with Order 39 Rule 1 and 2 CPC is in the name of Temple has been filed by the same objectors. The said application was dismissed by the executing court by order dated 12th May, 2005. This dismissal of the application has not been challenged and, therefore, dismissal of application filed under Order 21 Rule 97 CPC become final. Then another application just after four days, under Order 21 Rule 97 CPC has been filed again in the name of Mandir Thakurji Shri Mathuradassji, Chota Bhandar, Kakroli but through Vinod Sanadhaya. This application was dismissed by the executing court on 19th May, 2005, therefore, to challenge the order dated 19th May, 2005 S.B. Civil First Appeal No.232/2005 has been preferred in the name of temple Thakur Ji Shri Mathuradassji through Vinod Sanadhya. S.B. Civil First Appeal No.239/2005 was admitted on 28th Nov., 2002 by this Court and after two years, on 11th April, 2005 appellant submitted an application under Order 41 Rule 27CPC in S.B. Civil First Appeal No.239/2002 alleging that respondents nos. 8 to 11 are the tenants in the property in dispute and dispute is whether the property in dispute was the personal property of respondent no.7 Shri 9 Krishan Kumar or it is the property of the temple Mandir Thakurji Shri Mathuradassji, Chota Bhandar, Kakroli – plaintiff- appellant no.1. According to the appellants, appellant no.4 inquired from the office of the respondent no.11 – the District Education Officer, Primary, Rajsamand as to how and in what circumstances, the tenant attoren to respondents nos. 1 to 6 who purchased the property from respondent no.7 Shri Krishan Kumar. The appellant no.4 for the first time came to know that Education Department was informed by the temple that property in dispute has been sold to 6 persons by it so the rent may be given to those purchasers and the purchasers also informed the department that they have purchased the property from Mandir Thakurji Shri Mathuradassji, Chota Bhandar, Kakroli . In view of the above it is clear that the property was of the temple and it is clear case of fraud with the tenants and because of that fraud they attorn under impression that sale has been affected by the temple in favour of the purchasers. According to the appellants Photostat copies of the notices given by the said Mandir Thakurji Shri Mathuradassji, Chota Bhandar, Kakroli and appellants had no knowledge of these documents and 10 therefore, the appellants could not produce those documents during trial or at the time of filing of the appeal. Therefore, the same may be permitted to produce under Order 41 Rule 27CPC. This Court by order dated 13.2.2006 observed that the said application will be decided at the time of final hearing of the appeal. The respondents nos. 1 to 6 submitted reply to the application filed by the appellant under Order 41 Rule 27 CPC and reiterated that the property in question was the private property of Shri Vithal Nathji, which was given in partition to Shri Krishan Kumar who sold the property to respondents nos.1 to 6 by registered sale deed dated 18th Dec., 1978. The respondents nos. 1 to 6 further raised objection about the representation of the trust by Shri Ishwar Chand and ors in view of the fact that admittedly, trust is having its own trustee who alone can represent the plaintiff-trust. The respondents nos. 1 to 6 further submitted that appellants had full knowledge about the documents referred in their application filed under Order 41 Rule 27 CPC since the year 1996 when the suit no.42/96 (present suit no.41/2001). Copy of the letter dated 27.8.1979 was filed by the plaintiffs-appellants in the court 11 of District Judge, Rajsamand in the above mentioned suit. The respondents, therefore, prayed that the application deserves to be dismissed as not been filed bonafidely. On 18th April, 2007 this Court directed to issue notices in both the appeals to Deosthan Department to find out the status of Mandir Thakurji Shri Mathuradassji, Chota Bhandar, Kakroli. Learned Government Advocate was given time to obtain instructions and place report before this Court at appellate stage. On 9.8.2007 this Court observed that no report was submitted by the Government Advocate obviously after taking time therefore, the case may be fixed for final arguments alognwith S.B. Civil First Appeal No.239/2002. Learned counsel for the appellant in S.B. Civil First Appeal No.239/2002 vehemently submitted that the suit of the plaintiff could not have been dismissed under Section 151 CPC on the ground of certain observations made by this Court in public interest litigation writ petition no.1323/1996 or because of any finding recorded in earlier round of litigation and the suit filed by the plaintiffs is a regular suit filed for declaration of title of the property and cancellation of sale deed or declaration of sale deed to be null and void. 12 The suit is based on factual aspect and without determination of facts stated by the plaintiffs, the plaintiffs' suit could not have been dismissed. It is also submitted that learned District Judge committed wrong by taking support from the observations made in the judgment of this Court passed in S.B. Civil Misc. Appeal No.599/1997 by which the application for grant of temporary injunction was dismissed in this very suit. It is submitted that the observations made by this Court in proceedings arising out of an application for grant of temporary injunction order was not binding upon the trial court. It is also submitted that the plaint could have been rejected only under Order 7 Rule 11 CPC provided any case is made under rejection of plaint under Order 7 Rule 11 CPC and the court has no power to dismiss or reject the plaint under Section 151 CPC. The power under Section 151 CPC can only be invoked if there is no specific provision for rejection of plaint. It is also submitted that when issues have not been framed and evidence has not been recorded, the court was not justified in dismissing the suit simply on the ground that earlier one of the plaintiffs filed writ petition about the part of this property and that was dismissed by this Court. Learned 13 counsel for the appellant tried to submit that the case of the Hon'ble Supreme Court relied upon by the trial court reported in 1994 SC 1488 has chequered history and glaring fact, which compel to take the court an extremely harsh view. So far as dismissal of the suit no.46/2001 (3/99) (42/96) by the trial court of the plaintiffs is concerned, I need not to repeat all facts in detail as all facts have been given in preceding paras of this judgment in detail but in brief it may be recapitulated that suit for eviction against the State and its School was filed by the respondents nos. 1 to 6 as back as in the year 1981 after purchasing the property in dispute by registered sale deed from one Shri Krishan Kumar on 18th Dec., 1978. The State was party in the said suit no.29/81 which was dismissed by the trial court on 15th Sept., 1990 not on the ground that purchasers are not the landlords of the suit property but on finding that case of eviction has not been made out by the plaintiffs against their tenants. The State and its all departments -defendants not only not disputed the title of respondents nos. 1 to 6 , which was filed in the year 1981 rather specifically admitted that respondents nos. 1 to 6 are their 14 landlords. In first appeal, the State entered into compromise with the appellants-plaintiffs and agreed to vacate the suit premises and also took benefit of situation and got one new building donated from the respondents nos. 1 to 6-plaintiffs. The decree was passed by this Court on the basis of the order passed by the State Government dated 27th March, 1995 and this decree of this Court is dated 24th May, 1995. After above decree, the present suit was filed in the trial court on 9.8.1996 in the name of Mandir Thakurji Shri Mathuradassji, Chota Bhandar, Kakroli through Ishwar Chand and Ors. Ishwar Chand also become party in his personal capacity as plaintiff no.2 and three other persons have joined him in filing the suit. Same Ishwar Chand submitted public interest litigation writ petition no.1223/1996 before this Court on 22nd April, 1996, which happened to be filed four months prior to filing of the suit in hand. In the said writ petition no.1223/1996, it appears that said Ishwar Chand stated that he was Vice Principal of Government Secondary School, Kankroli. The said petition preferred by Shri Ishwar Chand was dismissed by this Court with clear finding that “......the petition is clearly an abuse of the process of this court and abuse of 15 the practice of entertaining public interest litigation by this Court. The petitioner is really putting a spoke in the wheel by seeking a restraint order against the running of the school in the new premises. The intention appears to be that if the government is restrained from running the school in new premises, naturally and consequentially it cannot vacate the old premises and the real intention seems to be not to allow respondents no.6 & 7 to eat the fruits of the litigation culminating in a compromise decree in their favour passed by this Court.” This Court further observed “......No such relief can be granted by this Court which would make a decree passed by this court itself infructuous.....” Not only this this court further observed “......A perusal of the record clearly shows that petition has not been brought in public interest but there is some extraneous motive in filing this petition......” And “.....It clearly shows that the main purpose of the petition is to stall the vacation of old building causing harassment to respondents no.6 and 7. For the aforesaid reasons the allegations made by the respondents no. 6 and 7 that the petitioner was demanding money from them seem to be probable.” Not taking lesson from above observations of this 16 Court, the appellant preferred special leave to petition no.4289/2000 before the Hon'ble Supreme Court, which was dismissed by the Hon'ble Supreme Court by order dated 27.2.2000 with observation that “it is not a public interest litigation at all and the order of the High Court is entirely justified....” Thereafter, the trial court dismissed the suit as absolutely frivolous and amounting to abuse of process of court on 2.8.2002. Then subsequent events happened as an application in the name of Temple under Order 21 Rule 97 CPC was submitted in the trial court on 10th May, 2005 by one Indermal joining Shanker lal and Navneet also as party in the said application. This application was rejected by the trial court vide order dated 12th May, 2005 by writing order on the back of the application itself. The record of the execution as well as application filed under Order 21 Rule 97 CPC on 10th May, 2005 reveal that the specific plea was taken by the objectors that the tenants were fraudulently forced to believe that the decree holder purchased the suit property and the tenants believed the same because of the notice given by the decree holder-purchasers and notice given on behalf of the temple who is perpetual minor. Substantially, 17 the same issue was raised about the competence of the vendor in selling the property in dispute in the application filed under Order 21 Rule 97 CPC and that plea has been rejected in view of the order of the executing court dated 12th May, 2005 and it has attained finality. There is reference of notices in application filed on 10th May, 2005 , copy of which plaintiff want to place on record of the first appeal under Order 41 Rule 27 CPC. However, detail particulars of notices are not given but still fact is clear that the reference of notice in application under Order 21 Rule 97 CPC is of the same notice which are referred in the application under Order 41 Rule 27 CPC filed by the appellants. Further, subsequent event is that in the name of Mandir Thakurji Shri Mathuradassji, Chota Bhandar, Kakroli Shri Vinod Sanadhaya one more application has been submitted under Order 21 Rule 97 CPC on 15th May, 2005 in the executing Court. This application is through one Vinod Sanadhya. In this application also it has been alleged that the tenants have been mislead to believe that the decree holder purchased the property and on this fraudulent representation, the tenants started giving rent to the decree holders and believed the decree holders to be 18 their landlords. In this application also there is reference of same notices given by the erstwhile owner of the property and the purchasers to the tenants. It has also been stated how Shri Krishan Kumar was owner of the property has not been mentioned in the sale deed executed in favour of decree holder and, therefore, decree cannot be executed. It appears from the facts prior to filing of the suit and its subsequent conduct of the parties to the suit that sole aim and object of the plaintiffs is to see that the decree holder should not get fruits of the decree in spite of the fact that Division Bench of this Court clearly held that there is force in the contention of two of the decree holders that in fact, the petitioner Ishwar Chand demanded money from the decree holders apparently, for not putting the hindrance in the execution of the decree and that allegation appeared to be probable. The Hon'ble Apex Court upheld the judgment of this Court passed in D.B. Civil Writ Petition (PIL) No.1323/1996 on merits as admitted by the appellants in para no.7 of their memo of appeal and copy of the order passed by the Hon'ble Supreme Court in SLP dated 27.3.2000 is on record of the trial court. In addition to the reasons given by the trial court in its order rejecting the suit 19 of the plaintiff, this Court is of the view that the conduct of Ishwar Chand from beginning clearly demonstrates that he with ulterior motive as observed by this Court had only one intention that the decree holders may not get the full fruits of the decree in spite of the fact that they not only obtain the decree for eviction of tenants from High Court as back as on 16th Nov., 1990, but even donated a school building to the State. Admittedly, in the Civil Original Suit No.29/81 the State and its departments admitted themselves to be the tenant of the purchasers and that position continued for about almost 15 years. As per admission of the plaintiffs- appellants all the tenants started paying rent to respondent nos. 1 to 6 which may be since 1981. Thereafter, the judgment-debtors-tenants admitted in their compromise in court that they will hand over the possession of the suit premises to the decree holders then said Ishwar Chand become proclaimed representative of the appellant no.1- temple in spite of the fact that in the Rajasthan there is specific Act known as Rajasthan Public Trust Act, 1959 (for short the Act of 1959) under which one can seek permission to file suit for various reliefs with respect to the trust and its management which may include the management of the 20 trust property, removal of trustees etc. The permission can be sought under the Act of 1959 for institution of suit for specific directions. Nothing has been said in the entire plaint why the sale deed of 1978 has not been challenged by either trustees or temple or its worshipers and even by the plaintiffs for such a long period of about 18 years and decree was passed by the High Court for eviction of tenants in the year 1999. It appears