IN THE HON’BLE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA 111 of 1995. Judgment Reserved on 17.6.2008. Date of decision 20th October, 2008. Radha Krishan Mandir and others …Appellants. Versus Hans Raj and others …Respondents. Coram: The Hon’ble Mr. Justice Dev Darshan Sud, J. Whether approved for reporting?1 Yes. For the petitioner Mr. K.D.Sood, Advocate. For the respondents Mr. Ashwani Sharma, Advocate. Dev Darshan Sud, J. This appeal arises out of the judgment of the learned District Judge reversing the judgment and decree passed in favour of the appellant by the learned Sub Judge Ist Class, Dehra, granting a decree against the respondent-defendants herein from interfering with the management and possession of the property of the plaintiff, which is a deity 1 Whether Reporters of Local Papers are allowed to see the judgment? Yes. - 2 - managed through a trust constituted in that behalf for the suit land comprised in Khasra No. 3053, 3060 and 3061, situated in Mohal Pragpur Dhakli Karoli, Tehsil Dehra, Distt. Kangra. The plaintiff petitioned the Court on the allegations that Deity Shri Radha Krishan is the owner of the property as described in the plaint on which there are three temples viz of Shri Radha Krishan, Bhagwati Mataji and Lord Shiva. Besides these three temples, there is one open platform, one shed, store etc. exclusively meant for the use of Sadhus and in the dedicated service of the deity. In addition, there are two shops, one used by the plaintiff as a store and the other has been rented out to one Kuldip. The deity has filed the suit through Shri Puran Chand and Veer Vrat, both of whom are trustees. The plaintiff pleads that prior to the year 1978, one Pandit Ghungar Ram was the Mohatmim of the properties of the Deity. He started suffering visual impairment and also because of his old age was incapable of looking after the deity and managing its affairs and property. He, therefore, thought it fit to create a Trust in consultation - 3 - with the elderly and respectable residents of the village for the purpose of managing the affairs of the deity. In the year 1977, such a Trust was in fact created. After this donations from the public at large were collected for running and managing the Trust property, carrying out repairs and renovations to the temple and addition of additional rooms etc. where one Kirtan Hall (prayer hall) and rooms were added to the temple complex at an expenditure of more than Rs.1,50,000/-. The trustees managed and possessed the property for and on behalf of the deity Shri Radha Krishan. The cause for filing the suit was the acts of defendants – respondents who had started interfering in the management and control of the property of the Deity and claiming it as their personal property. Pujari Diwakar Dutt who was appointed by the trustees to perform Puja and Arachna of the Deity and to look after the day to day management of the temple and prayer hall, was threatened by the defendants with physical violence in case he did not vacate and hand over the possession of the temple and the prayer hall to the defendants. Plaintiffs pleaded that prior to Shri - 4 - Diwakar Dutt, Shri Som Dutt was working as a Pujari for about six years. On 21.5.1984, he was beaten up by defendant Hans Raj and he fled from the temple fearing for his safety. Thereafter another Pujari was brought to perform Puja etc. but he was also threatened, beaten up and he left the place within just three days of his appointment as such. In these circumstances, the plaintiffs prayed for a decree of permanent prohibitory injunction restraining the defendants from interfering in the property, temple affairs and its management etc. The defendants denied the allegations made by the plaintiffs. Three preliminary objections were taken, namely that the plaintiffs had no locus standi to file the suit; they were estopped by their acts and conduct to institute the proceedings and the suit was not maintainable in the present form. These were just plain and bald allegations without being substantiated by pleading even bare facts. The objection taken was that Shri Radha Krishan is not the owner of the property, but the existence of such Deity and three temples, open platform and shops was admitted. The defendants pleaded that Rup Devi, wife of Shri Duni Chand was the owner of the - 5 - suit property. On 1.5.1946, she created a trust of her properties except the suit property. After her death, she was succeeded by Balak Ram, Jagan Nath and Sawai Ram. Contesting defendants 1 to 3 are the sons of Balak Ram and defendant No. 4 is the widow. The temples and deity were pleaded to be the personal property of Smt. Sita Devi. In replication, all these allegations were denied. On the pleadings of the parties, the learned trial Court settled four issues namely, whether the plaintiff is estopped by his act and conduct from filing the suit; whether the suit is not maintainable; whether the plaintiff is in possession of the suit property as trustee; whether the defendants are owners in possession of the suit property. On the first two issues, it was held by the learned trial Court that these issues were not pressed by the defendants. Moreover, even a perusal of the pleadings in the written statement leaves no doubt in my mind that these issues could not have been tried in the form in which the pleadings were put forth by the defendants. Issues 3 and 4 were taken up for discussion together. The learned trial Court by its judgment dated 31.3.1990 decreed the - 6 - suit of the plaintiffs holding the case of the plaintiffs as having been proved and granting a decree for injunction. An appeal was preferred by the defendants – respondents herein to the Court of learned District Judge, Kangra at Dharamsala who, by his order dated 19.10.1992, set aside the judgment and decree remanding the suit for decision afresh after allowing the application of the defendant for amendment of the written statement and directing the framing of a fresh issue arising out of the amendment. No finding was given on the merits of the grounds pleaded in the appeal. An additional issue was framed on 11.1.1993 to the effect as to whether the suit was bad for non joinder of all the trustees. The learned trial Court recorded evidence on this issue and on trial held in favour of the plaintiffs/appellants and decreed the suit of the plaintiffs. The suit was again decreed in favour of the plaintiff-appellant herein but in appeal, the judgment was reversed solely on the ground that the dedication of the property to the Trust had not been proved. - 7 - This appeal has been admitted on three substantial questions of law, namely: 1. Whether in view of the fact that the plaintiffs were acting as Trustees and were in settled possession admittedly since 1927, they were entitled to decree for declaration and injunction as prayed for, more so, when the defendant was not found to be owner in possession of the Temple? 2. Whether the findings of the Court below are vitiated for misconstruction and misreading of P6 and D2 whereby Jagat Ram was appointed as Mohatmin by the Deputy Commissioner on 18.7.1928 and thereafter Ghungar was appointed by the order of the D.C. on 3.4.1929 as is evident from P6? 3. Whether the District Judge was right in reversing the judgment of the trial court when the plaintiffs were found to be managing the Radha Krishan Mandir Thakurdwara as de-jure and de-facto trustees and the judgment of the trial Court is liable to be restored. All these questions are taken up for discussion together as the answer to one will determine the answer to the other(s). Taking up the evidence of the parties, the case set up by the - 8 - defendants was one for ownership. Respondent – defendant No. 1 appeared as DW-1 and stated that Smt. Rup Devi had created a trust with respect to some of her property which includes shops, Sarai and land. He stated that the temple was her private property and on her death, the respondents are the owners of the property. He denied that Ghungar Ram was ever appointed as Mohatmin of the temple and there was no trust which was created. His cross examination is revealing and is being considered in some detail. He admits that he is in possession of documents showing ownership of Rup Devi of the suit property and that Gurdev is acting as Pujari of the temple. He also admitted that the defendants or their predecessors never appointed any Pujari with respect to the temple Shri Radha Krishan. He accepts that earlier there were only three temples and a small residence of the Pujari and now one hall and Sarai consisting of six rooms has been constructed and he does not know whether this was done before or after the death of Shri Ghungar. Most importantly, he admits that this additional construction has been raised by the people who are controlling and managing the temple with donations - 9 - collected from the public and that they alone are responsible for appointing and removing the Pujari of the temple. The learned trial Court rightly holds “he even admits that he had no right to interfere with the working of the management authority”. DW-2 is from the office of the Deputy Commissioner who has placed on record the Trust Deed Ex.DW-2/A purporting to establish the creation of a private trust which purportedly includes the suit property. DW-3 Shri T.M.Dogra testified that the temple was owned by Shah Duni Chand, husband of Rup Devi. However, in his cross examination, he has admitted that he does not reside at Pragpur where the temple is situated. His father who was a Pujari, used to live there. He left the temple in the year 1977 although his father had died in the year 1946. He admits that in the temple premises there is a Kirtan Hall, Sarai and shops which were shown to him by Puran Chand and his only knowledge about the ownership of the temple is through his father. DW-5 Gian Chand has only stated that the temple is owned by Rup Devi and none else. The learned trial Court holds that on the basis of this evidence, the claim set out by the defendants - 10 - that the temple was owned by Smt. Rup Devi is not established on record. The plaintiffs proved on record Ex.PW-2/A which is the Deed of Settlement of the Trust by late Shri Ghungar Ram, appointing Shri Puran Chand Karol, Shri Sadhu Ram, Pandit Jagan Nath, Pandit Virbrat as trustees and stating the terms of the Trust. The learned trial Court holds that the defendants do not dispute that the temple/trust property is meant for the use and benefit of the public at large and that the members of the public including Sadhus were free to visit the temple and collections made from the public were appropriated for the management, worship and upkeep etc. of the deity / temple. During the pendency of the suit, an inspection of the disputed property was made by the learned Presiding Officer on 9.12.1986 in the presence of the parties and their counsel and with their consent to elucidate and clarify the controversy for determination. There were 60/70 persons present at the spot at the time of inspection. Learned Judge notices that there was a Kirtan Hall, Sarai Building consisting of six rooms adjoining to the Kirtan Hall inside the temple - 11 - premises and that these were created by the plaintiff trust after 1977, in the year 1978 and completed in 1980. Three temples dedicated to Lord Shiva, Durga Mata Ji and Shri Radha Krishan existed on the spot. The learned Judge noticed and found as a fact that these were old temples whose condition was deteriorating and required major renovation and repairs. The Presiding Officer was informed that a sum of Rs.1,42,702/- had been spent by the general public for additions and repairs till the time of inspection. It was not disputed that these temples were situated on the three khasra numbers as enumerated in the suit of land measuring 0-16-00 hectares. More importantly, the defendants acknowledged and accepted that these temples were neither managed nor renovated by them. Adverting to the evidence of the plaintiff, the learned Court considers Trust Deed Ex.PW-2/A having been settled by Ghungar. The terms of the Deed may be noticed in brief. The Deed recites that there is in existence a temple known as Thakurdwara Radha Krishan, entered as No. 293, Abadi Tika Tikka (Lal Lakir) Tikka Pragpur, Village Pragpur, Tehsil Dehra, District Kangra, which is - 12 - managed exclusively by the settler Pandit Ghungar, Mohatmim and entered in the revenue record as such. The property consists of three temples, namely Radha Krishan Temple, Shiv Temple and Devi Bhagwati Temple, a house for the Pujari and vacant land. The deed recites that substantial funds are required for renovation, repairs and construction of rooms, Kirtan Hall and other facilities and as the settler has grown old, and his eye sight has deteriorated considerably, he is unable to manage the temple, its proper management and upkeep and, therefore, constitutes a Trust called Shri Radha Krishan Thakurdwara Trust in which Shri Puran Chand, son of late Lala Nihala Mal, Shri Sadhu Ram, son of Shri Hardyal, Shri Puran Chand Karol, son of late Lala Devi Saran, Pandit Jagar Nath, Pandit Vir Brat, son of Pandit Parma Nand, all residents of Pragpur are the first trustees. The Deed also recites that the trustees will elect amongst themselves a President, Vice President, Secretary and one Cashier. A specific authorization has been given to the trustees to collect funds, donations from the public, keep regular and proper accounts for the renovation and maintenance of the Thakurdwara - 13 - estate. All the donations and funds will be deposited in a saving bank account at Pragpur and the accounts operated by the President and Secretary jointly. The accounts and other affairs of the Trust will be subject to regular audit annually. The settler retains unto himself the right to remain a Pujari till his life time and thereafter authority has been vested in the trustees so named to appoint Pujari and also any other trustee in case of vacancy. The deed concludes by reciting that any person donating Rs.1000/- or more will be recognized a patron of the Thakurdwara. The deed is registered before the Sub Registrar. The terms and conditions in this deed are being considered in some detail for the purposes of deciding on the aspect of Ghungar Ram being the de facto Mohatmim and the plaintiffs as de facto trustees having accepted the responsibility on their own and not claiming any interest adverse to that of the deity. This fact would assume relevance and significance as even the defendants, despite alleging that they are in possession of the documents showing their exclusive ownership of this property have not produced any - 14 - such material on record and Ex.DW-2/A does not in any manner establish their ownership. Learned counsel appearing for the appellants has drawn my attention to Ex.P-2 and the note contained therein stating that by an order dated 1.3.1875, the Deputy Commissioner had conveyed the decision of the Governor granting Muafi in land revenue to Mandir Thakurdwara. This submission was made to show and support the actual creation of the religious endowment. Learned counsel submits that no other proof was required to rebut the submission put forth by the learned counsel for the respondents that there did not exist any trust or the fact that as the learned District Judge holds that the essentials of the creation of a valid trust etc. are lacking. He submits that even subsequently, this fact has been accepted and reiterated by the proceedings conducted before the Commissioner, Kangra District at Dharamsala in case No. SIC/JC- 2(36)-422, dated 18.10.2004 Ex. A-1 which was instituted by respondent No. 1 against the appellant temple claiming Mohatmimship of the appellant temple. The relevant portion of the order reads: - 15 - “ I have gone through the record pertaining to this case carefully and have also considered the arguments adduced by counsels of both the parties. The claim of the petitioner is that the khasra No. 3053, 3060 & 3061 of Village Pragpur should be inserted in his Mohatmim order as he has already been appointed Mohatmim vide Deputy Commissioner order dated 30.10.1995. To verify the record, I perused the file pertaining to the appointment of Shri Hans Raj as Mohatmim. The order of Deputy Commissioner reads as follows: Up Mandladhkari (Nagrik) Dehra Ke Kramank: 1200/SDD-R dated 11.9.1995 ki sifarish ke anusar Mohatmim Mandir Dharamsala va Talab Aabnoti, Shri Balak Ram, son of Shri Salig Ram ki Mritiyu ke uprant uske sthan par mritak ke larke Hans Raj ko sathai Mohatmim Mandir ka Niyukt Kiya jata hai. This order is based on the report of SDO (Civil) Dehra dated 11.9.1995. The report of SDO (Civil) Dehra and the Deputy Commissioner order dated 13.10.1995 clearly mention that Shri Hans Raj is appointed Mohatmim in place of his father Shri Balak Ram. Therefore, it is to be checked, that on which property Shri Balak Ram was Mohatmim. Shri Hans Raj on 3.1.1994 (page 143 on his Mohatmim - 16 - appointment file) made an application to Deputy Commissioner that he should be appointed Mohatmim in place of his father for property in khata No. 254 min and khata No. 295 min in Mohal Garh Mauza Garli. From the perusal of the page 155 of that file it is clear that Shri Balak Ram was recorded as Mohatmim on pond in khata No. 254 min and khata No. 295 min and Mandir, Dharamsala on khata No. 5,7,12,13 (all min) in Mohal Garh Mauza Garli. Thus it is evident that Shri Balak Ram was Mohatmim of the above property located in Mohal Garh Mauza Garli only. Therefore, Deputy Commissioner vide his order dated 23.8.1996 informed SDO (Civil) Dehra that Shri Hans Raj son of Shri Balak Nath has been appointed Mohatmim for Mandir, Dharamshala and Pond located in Mohal Garh Mauza Garli. This fact is also corroborated vide SDO (Civil) Dehra report dated 28.4.1999 whereas he has mentioned that, in Mohal Pragpur, there is no revenue record pertaining to Shri Hans Raj or his ancestors. Thus it is clear that Shri Hans Raj was appointed Mohatmim only for the property located in Mohal Garh Mauza Garli where his father Shri Balak Ram was earlier recorded as Mohatmim. Thus Shri Hans Raj was not appointed Mohatmim of Temple Radha Krishan located - 17 - in village Pragpur or khasra No. 3056, 3060 & 3061 located in village Pragpur. Now, I would like to discuss the appointment for Temple Radha Krishan located in village Pragpur. The SDO (Civil) Dehra vide his detailed report dated 28.4.1999 mentioned that Mandir Radha Krishan, Mandir Mata Bhagwati and Shiv Mandir are located in khasra Nos. 3056, 3060, 3061 & 3063 in Village Pragpur. As per the record following were appointed Mohatmim by Deputy Commissioner: 1. Shri Mathra Dass Mohatmim before 30.6.1878 2. Shri Bhindu Mohatmim 1.7.1878 to 3. Shri Birju son of Sh. Lodinda 18.7.1906 to 4. Shri Dalu Ram 18.7.1914 to 5. Shri Jagat Ram Year 1920 to 6. Shri Ghungar son of Lachhmi Year 1929 to Further, Shri Ghungar Ram in his old age got blind therefore, he constituted a trust to look after the temple which was got registered in 1977. From the perusal of the above record also, it is clear that Shri Balak Ram, father of Shri Hans Raj was never Mohatmim of this temple. As per the report of SDO (Civil) Dehra dated 28.4.1999, the registered trust, did the renovation renovated all the three temples and constructed kirtan hall. Later on, the matter went to the - 18 - Civil Court and District & Sessions Judge, Kangra vide his order dated 28.12.1994 decided that Shri Ghungar was only a Mohatmim and not the owner therefore, he was not capable of creating the trust. The Hon’ble District & Sessions Judge, Kangra also decided that Shri Hans Raj has not been able to prove his ownership. Presently the matter is in the High Court. In addition to this, the District & Sessions Judge, Kangra vide his order dated 15.7.2003 has held that the property of Roop Devi vest in trust created on 1.5.1946 and Shri Hans Raj is not owner of the property owned by Roop Devi Wd/o Duni Chand. From the foregoing discussion, it is clear that in case of Mandir Radha Krishan of Village Pragpur (Khasra No. 3053, 3060 & 3061) Shri Ghungar Ram was last Mohatmim and father of Shri Hans Raj was not Mohatmim of this temple. Shri Ghungar had appointed a trust to manage the property but the Hon’ble Session Judge vide his order dated 28.12.1994 held that Shri Ghungar was not capable of creating trust as he was not owner of the property but only a Mohatmim. From the perusal of the record it is clear that Deputy Commissioner has been appointing Mohatmim of this temple from time to time, therefore, only deputy commissioner could - 19 - have appointed Mohatmim after Ghughar. The SDO (Civil) Dehra vide his letter dated 28.6.2001 has recommended that the present trust should continue to work to manage the property of this temple. From the perusal of record it appears that Sub Judge Ist Class, Dehra had also inspected the place on 9.12.1986 and submitted report mentioning that there was a unanimous consensus on the spot that the management of the temple should continue with the trust. Thus it appears that the members of the then trust have been looking after the property of Radha Krishan Temple efficiently. I, therefore, decide that the members of the trust (respondents) registered in 1977, would jointly be Mohatmim of Radha Krishan Temple and its property located in khasra No. 3053, 3060 & 3061 located in village Pragpur, Tehsil Dehra. It is further ordered that the parties will maintain status quo qua possession.” The order has been reproduced in some detail as it only reiterates the recording of the Muafi in Ex.P-2 and the appointment of Mohatmims from time to time. This practice has been continuing since 1878. This order was filed along with CMP 180 of 2007 which was considered at the time of hearing of this appeal and - 20 - the order was allowed to be taken on record as Ex.A- 1. The respondents filed CMP 1082/2007 for permission to lead additional evidence and as a counter to the application moved by the appellants. This application was also allowed and the documents filed therewith were taken on record as Ex.R-1 to be read as evidence in this appeal. The orders passed on both these applications are consistent with the view of this Court for allowing additional evidence. (See Badi Ram v. M/s. R.S.Company , AIR 2002 HP 150). Even otherwise, the law on the point is well settled in K. Venkataramiah v. A. Seetharama Reddy, AIR 1963 SC 1526). The other evidence on behalf of the plaintiffs consisting of PW-2 Puran Chand, PW-3 Salig Ram, PW-4 Divakar Dutt, PW-5 Gurdev, son of Sudama, PW-6 Shri Vir Brat and PW-7 Shri Kuldip is consistent and corroborative of the fact that the temple is a public religious endowment being managed as a trust, Shri Ghungar was the de facto Mohatmim of this temple, the appointment of the first Mohatmim as recorded was made in 1878 by the Deputy Commissioner, Muafi was granted by the British Indian Government and subsequent appointments have - 21 - been concurred with and made by the Deputy Commissioner