IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. RSA No. : 379/2010 Reserved on: 1.9.2010 Decided on: 1.10.2010 ________________________________________________ Kehar Singh and another. …Appellants. Versus Devta Thakur Gopalji Sarsai and others … Respondents. __________________________________________________________ Coram: Hon’ble Mr. Justice Rajiv Sharma, Judge. Whether approved for reporting?1 yes For the appellants : Mr. Bimal Gupta, Advocate. For the Respondents: Nemo. ________________________________________________________ Rajiv Sharma, Judge. This Regular Second Appeal is directed against the judgment and decree dated 13.5.2010 passed by the learned Additional District Judge, Fast Track Court, Kullu in Civil Appeal No.4 of 2009 (RBT Civil Appeal No. 22 of 2009). 2. Material facts necessary for the adjudication of this Regular Second Appeal are that respondent-plaintiff (hereinafter referred to as ‘plaintiff’ for convenience sake) sought declaration to the effect that the plaintiff being deity is the owner in 1 Whether reporters of the local papers may be allowed to see the judgment? Yes 2 possession of the suit land measuring 0-40-59 hectares bearing Khasra Nos. 511/1, 584, 585 and 772 (previous Khasra Nos. 4530 and 4397) comprised in Khata/Khatauni No. 545/764, as recorded in the copy of jamabandi for the year 2003-04, Up- Muhal Ranghri, Tehsil and District Kullu and mutation No. 4043 dated 6.8.1984 has been wrongly attested and sanctioned and the exchange of her share by respondent No.2 herein and defendant No.1 in original suit, namely, Kekti Devi, (hereinafter referred to as ‘defendant No.1’ for convenience sake) in favour of Charan Dass-respondent No. 4 herein and defendant No.3 in the original suit (hereinafter referred to as ‘defendant No.3’ for convenience sake) is illegal and mutation No. 5217 dated 9.1.1985 is also wrong and further sale deed No. 610 dated 16.5.1985 executed by defendant No.1 regarding Khasra No. 3323 in favour of respondent No.5 herein and defendant No.4 in the original suit (hereinafter referred to as ‘defendant No.4’) and mutation No. 5315 dated 18.11.1985 attested and sanctioned on the basis of sale deed is also wrong and illegal with consequential relief of permanent prohibitory injunction for restraining the defendants from interfering with the suit land. It was pleaded that the plaintiff is a deity having its temple at Sarsai, Phati Hallan, Kothi Naggar, Tehsil and District Kullu. The deity is owner in possession of several properties including the 3 suit land. Plaintiff is a perpetual minor and the suit was filed through one of the devotees, who is also Pujari of the plaintiff, namely, Surinder Kumar. The suit land was recorded in the ownership and possession of the plaintiff. This land was given to the Pujaris for performing Puja of the plaintiff. Their status was not that of the tenant. Respondent No.3 herein and defendant No.2 in the original suit, namely, Maina Devi, (hereinafter referred to as ‘defendant No.2’), Smt. Kekti, Atamu, Atami and Doddi were recorded in possession of the suit land as Pujaris in the copy of jamabandi for the year 1979-80. The mutation conferring the proprietary rights bearing No. 4043 dated 6.8.1984 was wrongly sanctioned in their favour without any notice to the plaintiff. Kekti Devi exchanged her share with Charan Dass and obtained Khasra No. 3323 in lieu of said exchange and mutation No. 5217 was attested to this effect. This Khasra No. 3323 was sold by her in favour of Begmu wife of Charan Dass vide sale deed No. 610 dated 16.5.1985 and mutation No. 5315 was attested to this effect. The interest of the plaintiff was not property protected at the time of the attestation of the mutation. These mutations were not binding on the rights of the plaintiff and hence it was prayed that the suit be decreed and declaration and injunction be granted in favour of the plaintiff. 4 3. The suit was contested by all the defendants except defendant No.5, Bala Ram, who was proceeded ex parte on 12.6.2006. Defendant No.1 took preliminary objection regarding lack of maintainability, locus standi and cause of action. It was not disputed that the suit land was owned and possessed by the plaintiff. It was asserted that Surinder Kumar was not Pujari. Joginder was the Pujari of Devta. It was denied that the land was given to the Pujaris without the payment of any rent and Pujaris were not inducted as tenants. According to defendant No.1, mutation No. 4043 was rightly sanctioned. It was further pleaded that she did not exchange her share with any person and mutation regarding this fact is without any basis. Defendant No.2 filed separate written statement and admitted the contents of the plaint. Defendant No.3 took preliminary objection regarding lack of maintainability, locus standi and that the suit was collusive between Surinder Kumar and defendant No.2. It was claimed that he was the personal deity of one family of village Sarsai. It was also asserted that Surinder Kumar was having no authority to institute the suit. The Pujaris used to perform Puja and they used to pay donation to Devta. This fact is also recorded in Waz-ib-ul-arz of Phati and Kothi Naggar. The mutation was rightly attested by the Revenue Officer in the presence of Kardar of Devta. It was specifically denied that the 5 interest of Devta was not watched properly. Defendant No.2 was present at the time of attestation of mutation. Defendant Charan Dass had exchanged the land after satisfying himself about the title of defendant No.1. The suit land was found in possession of defendant No.3 and mutation No. 7079 dated 18.8.2000 was attested by Assistant Collector IInd Grade. He had developed the land, raised boundary wall and apple orchard by spending huge amount. Kekti had rightly sold Khasra No. 3323 to defendant No.4 Begma Devi vide registered sale deed No. 610 dated 16.5.1985 and mutation No. 5315 dated 18.11.1985 was rightly sanctioned in favour of defendant No.4. Defendant No.4, in original suit, also filed separate written statement. It was stated therein that Surinder Kumar had no authority to institute the suit and the suit was collusive between him and Maina Devi. It was asserted that Surinder Kumar was not Pujari of the Deity and he was having no authority to institute the suit. The mutation of conferment of proprietary right was rightly sanctioned. Begma had purchased part of Khasra No. 3323 from Kekti vide sale deed No. 610 dated 16.5.1985 for valuation consideration of ` 13,000/-. She was in possession over the suit land and has developed the same by raising boundary wall and orchard after spending huge amount. Entries were made by her regarding the title of the land of Kekti and after specifying about 6 the title of Kekti. Therefore, she was bona fide purchase for valuable consideration. She sold the land in favour of Bala Ram and Bala Ram transferred the land to Kehar Singh and Hira Lal - defendants No. 6 and 7, in original suit. Defendant No.6 also filed separate written statement taking preliminary objections regarding lack of cause of action, locus standi etc. It was admitted on merits that the plaintiff is a deity, but it was denied that Surinder Kumar is the Pujari of the deity. It was asserted that the Pujaris were also the tenants of the deity and the mutation No. 4043 was rightly sanctioned and the plaintiff is bound by the same. Kekti and Atami were competent to sell the land and the sale deed was legal and valid and binding upon the plaintiff. Another written statement was filed by defendant No.7. It was denied that Surinder Kumar was Pujari of the Deity. It was further claimed that Pujaris were tenants of the plaintiff and mutation No. 4043 was rightly sanctioned. Sale was effected by Smt. Atami and mutation was also attested regarding this sale. Kekti and Atami were competent to alienate the land and plaintiff was bound by the said sale deed. The replications were filed and the issues were framed by the trial court on 12.7.2006. The trial court decreed the suit on 17.1.2009. Present appellants-defendants No.6 and 7, namely, Kehar Singh and Hira Lal and defendant No.3 - Charan Dass and defendant 7 No.4 - Begmu filed separate appeals bearing Civil Appeal No. 4 of 2009 and Civil Appeal No. 13 of 2009 before the learned Additional District Judge, Fast Track Court, Kullu against the judgment and decree dated 17.1.2009 passed by the learned Civil Judge (Jr. Div.), Manali camp at Kullu. Learned Additional District Judge, Fast Track Court, Kullu dismissed both the appeals on 13.5.2010. This Regular Second Appeal has been filed by the appellants-defendants No.6 and 7 against the judgment and decree dated 13.5.2010 passed by the learned Additional District Judge, Fast Track Court, Kullu in Civil Appeal No. 4/2009 (RBT No. 22/2009). 4. Mr. Bimal Gupta has strenuously argued that the judgments and decrees passed by both the courts below are contrary to principle of law and the courts below have not correctly appreciated the oral as well as documentary evidence. According to him, proprietary rights have been legally conferred vide mutation No. 4043 dated 6.8.1984. He has also contended that his clients are bona fide purchasers of the suit land. He has further argued that Surinder Kumar had no authority to institute the suit on behalf of Devta Thakur Gopalji Sarsai. 5. I have heard Mr. Bimal Gupta at length and have perused the judgments of both the courts below carefully. 8 6. Surinder Kumar has appeared as PW-1. He has filed affidavit Ex.PA. According to the contents of affidavit, the suit land was initially given to Pujari of plaintiff Devta from the time immemorial without any payment of any rent from generation to generation. The Pujaris were never inducted as tenants, therefore, mutation No. 4043 dated 6.8.1984 conferring proprietary rights in favour of Smt. Maina defendant No.2, Smt. Kekti defendant No.1, Smt. Atmu widow of Sh. Dyal Dass and Smt. Atmi and Dodi widows of Damodar Dass had wrongly and illegally been attested and sanctioned without notice and knowledge of the plaintiff Devta. The interests of the minor Deity were not protected. He has further stated that by taking advantage of wrong and illegal revenue entries, defendant No.1 Kekti without any right, title or interest over the suit land has illegally exchanged her share in the suit land in favour of defendant No.3 Charan Dass and obtained Khasra No. 3323 in lieu of said exchange from Charan Dass and mutation No. 5217 dated 9.8.1985 has wrongly and illegally been attested and sanctioned. Thereafter, defendant No.1 Smt. Kekti has sold Khasra No. 3323 as obtained and exchanged to defendant No.4 vide sale deed No. 610 dated 16.5.1985 and mutation has wrongly and illegally been attested and sanctioned. PW-1 has asserted that in the month of March, 2005 plaintiff Deity came to 9 know about wrong and illegal transfers and mutation through him. 7. PW-2 is Sh. Foza Singh. He has produced the copy of Pariwar register Ex.P-13. He has deposed that Surinder Kumar (PW-1) is resident of village Sarsai, Phati Hallan-I. 8. Defendant No.1 Kekti has filed affidavit Ex. DA. It is stated therein that Devta Thakur Gopalji has its temple at Sarsai and her ancestors were Kardar and Pujari of deity. The deity was of Mahant. She and her sister became owner of the land under the Himachal Pradesh Tenancy and Land Reforms Act and thus she could exchange the suit land and mortgage it being owner. In her cross-examination, she admitted that the land of the plaintiff deity was in possession of Pujari in lieu of Puja. In her main examination, DW-1 has stated that the title of suit land has been conferred upon her and other persons under the Himachal Pradesh Tenancy and Land Reforms Act and they had become owners. 9. DW-2 Kehar Singh, who is defendant No.6, has stated in his affidavit Ex. D-2/A that the land comprised Khasra No. 3323 measuring 1-12-0 bighas and new Khasra No. 2367 and 2368 had no concern with the plaintiff deity. Earlier owners of this land were Bala Ram, Ses Ram and Kundan son of Charbu. This land was partitioned by these persons and after partition it 10 came into share of Ses Ram and Ses Ram exchanged this land with Charan Dass and Charan Dass became owner in possession of this land. Charan Dass exchanged one bigha land with Kekti and Atmi and later on Kekti and Atmi sold this land to Smt. Begi wife of Charan Dass and Begi gave this land to Bala Ram son of Bekhu defendant No.5 and defendant No.5 became owner in possession of this land measuring 1-12-0 bighas and thereafter defendant No.5 Bala Ram sold this land measuring 0-12-0 bighas and other 7 biswas land, total 1-19-0 bighas to him and to his brother Hira Lal, defendant No. 7 for sale consideration of ` 2,25,500/- vide sale deed dated 28.12.2004. 10. DW-3 is Harish Kumar Verma, Branch Manager H.G.B. Haripur Branch. He has deposed that the copy of sale deed Ex.DW-3/A dated 28.12.2004 is correct as per record. 11. DW-4 Roshan Lal Thakur has stated that he is marginal witness in the copy of sale deed Ex.DW-3/A and it contains signatures of vendee and vendor. It is not borne out from the statements of DW-3 Harish Kumar Verma and DW-4 Roshan Lal Thakur that defendants No.1 and 2 and Atmu, Atmi and Dodi were ever tenants of the plaintiff deity. 12. DW-5 Charan Dass in his affidavit Ex.DW-5/A has stated that PW-1 Surinder Kumar was not Pujari of the plaintiff Devta. According to him, Smt. Maina, Kekti, Rirki and Mani were 11 Pujari and Kardars of the plaintiff Devta and they were performing Puja and they also managed all the affairs of the Deity. Mutation No. 4043 dated 6.8.1984 was rightly attested by the revenue officer as per law in the presence of Kardars of the Devta. Kekti was having all rights to transfer the land and he after going through the revenue papers exchanged the suit land with defendant No.1 and has given Khasra No. 3323 to defendant No.1 and mutation No. 5217 dated 9.1.1985 had been rightly attested by Assistant Collector IInd Grade. Thereafter mutation No. 5217 and 3539 were reviewed and mutation No. 7079 dated 18.8.2000 was attested by the Assistant Collector IInd Grade Settlement after conducting inquiry and the suit land was found in his possession. In his cross-examination, this witness has admitted that Kekti gave him Khasra Nos. 4397 and 4590, which is the suit land in exchange and in lieu of this land, he gave Khasra No. 3323 to Kekti. According to DW-5, mutation No. 4043 dated 6.8.1984 has rightly been attested. 13. Plaintiff has also placed reliance on copy of judgment dated 30.5.1996 Ex.P-10 passed by the learned Additional District Judge, Kullu in civil suit No. 50/94, titled as Smt. Hari Devi versus Dodi and other and copy of decree Ex.P-11. It is evident from the contents of Ex.P-10 that Additional District Judge, Kullu had observed that conferment of 12 proprietary rights in the name of Smt. Atmu vide mutation No. 4043 dated 6.8.1984 was absolutely wrong. It is also evident from the copy of jamabandi for the year 1984-85 Ex.P-2 that old Khasra number of the suit land 4397 and 4530 had been recorded in the ownership and possession of defendant No.2 Maina and defendant No.3 Charan Dass and other persons, namely, Dodi Devi, Damodar Dass, Smt. Hari Devi and these revenue entries were subsequent to the sanction and attestation of mutation No. 4043. Defendants have produced copy of jamabandi Ex.D-1 to Ex.D-5, copy of mutation No. 3770 Ex.D-6, copy of mutation No. 5216 Ex. D-7, copy of mutation No. 5806, Ex.D-9, copy of mutation No.D-10 and copy of Aks-Sajra-Nasal Ex. Dy. A bare perusal of Ex. D-1 to D-5 reveals that the land comprised Khasra No. 3323 was initially recorded in the ownership and possession of defendant No.5 Bala Ram and thereafter it was recorded in the ownership and possession of defendant No.1 Kekti and defendant No. 3 Charan Dass alongwith other person, namely, Atmi on the basis of exchange and sale. 14. Ex.P-4 is the copy of mutation No. 4043. It has been attested by Assistant Collector IInd Grade. However, as per the provisions of the Himachal Pradesh Tenancy and Land Reforms Act and rule 29 of the Himachal Pradesh Tenancy and 13 Land Reforms Rules, only Assistant Collector 1st Grade is competent to confer proprietary rights and sanction the mutation and the order passed by the Assistant Collector IInd Grade in the instant case is without jurisdiction. The Assistant Collector IInd Grade is neither competent to attest the mutation nor settle the dispute. In view of this the findings recorded by both the courts below that the mutation No. 4043 conferring the proprietary rights upon the defendants is without jurisdiction and void ab initio is upheld. Such mutation could not confer any right upon any person. Moreover, it is clear from Ex. P-3, i.e. copy of jamabandi for the year 1979-80 that the suit land comprised in old khasra No. 4397 and 4530 present Khasra No. 511/1, 584, 585 and 772 was recorded in the ownership of plaintiff Thakur Gopalji through Smt. Atmi, Dodi widow of Sh. Damodar Dass son of Dyal Dass and Smt. Maina, Smt. Kekti, defendant No.1 as Pujaris. The Pujaris and Kardas were holding the suit land on behalf of the plaintiff Devta as Pujaris and not tenants. Since these Pujaris were never inducted as tenants, proprietary rights could not confer upon them under section 4 of the Himachal Pradesh Tenancy and Land Reforms Act. The defendants have not led any tangible evidence on record that that they had ever paid any rent. Tenancy is a bilateral act. 14 15. Now, the Court will advert to the arguments of Mr. Bimal Gupta that the suit could not be instituted by Surinder Kumar. It is not in dispute that Surinder Kumar is Pujari of Devta. 16. Their Lordships of the Hon’ble Supreme Court in Bishvanath and another versus Sri Thakur Radha Ballabji and others, AIR 1967 SC 1044 have held as under: “The question is, can such a person represent the idol when the Shebait acts adversely to its interest and fails to take action to safeguard its interest. On principle we do not see any justification for denying such a right to the worshipper. An idol is in the position of a minor; when the person representing it leaves it in the lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest. It is a pragmatic, yet a legal solution to a difficult situation. Should it be held that a Shebait, who transferred the Property, can only bring a suit for recovery, in most of the cases it will be an indirect approval of the dereliction of the Shebait's duty, for more often than not he will not admit his default and take steps to recover the property, apart from other technical pleas that may be open to the transferee in a suit. Should it be held that a worshipper can file only a suit for the removal of a Shebait and for the appointment of another in order to enable him to take steps to recover the property, such a procedure will be rather a prolonged and a complicated one and the interest of the idol may irreparably suffer. That is why decisions have permitted a worshipper in such circumstances to represent the idol and to recover the Property for the idol. It has been held in a number of decisions that worshippers may file a suit praying for possession of a property on behalf of an endowment; see 15 Radhabai v. Chimnaji, (1878) ILR 3 Bom 27, Zafaarab Ali v. Bakhtawar Singhe, (1883) ILR 5 All 497, Chidambaranat Thambiran v. P. S. Nallasiva Mudaliar, 6 Mad. LW 666: (AIR 1918 Mad 464), Dasondhay v. Muhammad Abu Nasar, (1911) ILR 33 All 660 at p. 664: (AIR 1917 Mad 112) (Fb), Radha Krishnaji v. Rameshwar Prasad Singh, AIR 1934 Pat 584, Manmohan haldar v. Dibbendu Prosad Roy, AIR 1949 Cal. 1999.” 17. Mr. Bimal Gupta has also argued that the plaintiff has not complied with section 92 of the Code of Civil Procedure. In the suit filed by the plaintiff, no prayer has been made for the removal of any member from the management. This question has also been rightly decided against the appellants by the courts below. 18. Mr. Bimal Gupta has strenuously argued that the suit was barred by limitation. Plaintiff Devta Thakur Gopalji is a perpetual minor. Surinder Kumar is worshiper of the Deity and Pujari. He has filed the suit on behalf of the plaintiff Devta. The findings recorded by the courts below with regard to limitation can also not be interfered by this Court. Cogent reasons have been assigned by both the courts below by holding that the suit was within limitation. Plaintiff Devta Thakur Gopalji had no knowledge about mutation No. 4023 Ex.P-4 dated 6.8.1984. In these circumstances it can safely be presumed that the plaintiff 16 came to know about the wrong transaction in the month of March, 2005. 19. Mr. Bimal Gupta has also strenuously argued that his clients are bona fide purchasers of the land. It was expected from appellants to ensure after going through the revenue records to see the origin of the property and the manner in which the proprietary rights were conferred by Assistant Collector IInd Grade. Assistant Collector IInd Grade, as noticed above, had no jurisdiction to confer the proprietary rights. 20. Mr. Bimal Gupta has lastly contended that two applications preferred by his clients have wrongly been rejected by the first appellate Court. These two applications could not change the complexion of the suit since the conferment of the proprietary rights could not be attested by the Assistant Collector IInd Grade. His order was without jurisdiction. 21. Accordingly, in view of the observations made hereinabove, there is no substantial question of law involved in the Regular Second Appeal and the same is dismissed. . There shall, however, be no order as to costs. (Rajiv Sharma), J. 1.10. 2010. *awasthi*