---------------------------------------------------------------------------------------- Whether reporters of the Local papers are allowed to see the judgment? Yes. IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA. RFA No. 28 of 1998 and RFA No.29 of 1998 along with Cross Objection No. 123 of 1998. Judgment reserved on :2.1.2009. Decided on: February 24th, 2009. 1. RFA No.28 of 1998. Gurudwara Laj Ajit Memorial Sabha. …… Appellant. Versus Gurudwara Singh Sabha and another. …….Respondents. 2. RFA No.29 of 1998. Nanak Singh Gandhi and others. …… Appellants. Versus Ajit Lajwanti Gujral Trust and others. …….Respondents. 3. Cross Objection No.123 of 1998. Nanak Singh Gandhi and others. …… Appellants/ Non-Objectors. Versus Ajit Lajwanti Gujral Trust and others. …….Respondents/ Cross-Objectors. Coram Hon’ble Mr. Justice Surinder Singh, J. Whether approved for reporting? Yes. For the appellants : Pt. Om Prakash Sharma, Sr.Advocate withMr. Harish Behal, Advocate. For the respondents: Mr. Bhupender Gupta, Sr. Advocate with and for Objectors. Ms. Charu Gupta, Advocate. Surinder Singh, J. The above appeals and the cross objections have arisen from the same judgment passed by the learned Additional District Judge whereby two Civil Suits bearing - 2 - No.12 of 1981 (38-S/1 of 1985/1981) filed by Shri Gurudwara Laj Memorial Sabha and another Civil Suit No.6-S/1 of 1996/83 by Ajit Lajwanti Gujral Trust and others, whereby both the suits were decided by the same judgment and decree passed on 16.1.1998. The civil suit No. 38-S/1 of 1995/1981 was dismissed and Civil Suit No. Civil Suit No.6-S/1 of 1996/83 (44 of 1983) supra was partly decreed for possession of a portion of Kothi shown in red ink in the plan attached to the plaint with a consequential relief of injunction qua the suit land detailed in para 4 of the plaint, whereas the relief for seeking damages was declined, thus the above appeals and the cross-objections have been taken up together for decision. Subject matter of dispute. In Civil Suit No.12 of 81 (38-S/1 of 1985/1981): Building known as “Rockdene Estate” in Kh.No.667, Land bearing in passage in Khasra No. 665, 670 and 671, situated in village Badai, Kachi Ghati, Shimla and the land comprised in Khasra Nos. 660, 661, 662, 663, 664, 666, 674/1 and 703/1, kitas 8 measuring 2 Bighas 08 Biswas, entered in Jamabandi for the years 1974-75. In Civil Suit No.6-S/10 of 1996/1983 ( 44 of 83): Land comprised in Khasra Nos.659, 665, 670, 671, 673, 678, 679/1 and 680, kitas 8 total, total measuring 6 Bighas 2 Biswas and two plots measuring 4 Bighas 8 Biswas in Khasra Nos.668 and 675, three plots measuring 1 Bigha 3 Biswas in Khasra No.670, 672 and 674 AND nine Plots measuring 2-17 Bighas comprised in Khasra Nos.660 to 665, 667, 671/1 and 703/1 per Jamabandi for the years 1979-80 as mentioned in - 3 - para 4 of the plaint, hereinafter to be referred as the ‘land in dispute’. Background of the Case. The land in suit was originally owned by Sardar Ajit Singh. After his death it was inherited by his widow Sardarani Lajwanti, who remained in its possession till her death in the year 1970. She was issueless. After her death, Nanak Singh Gandhi defendant No.1 in Civil Suit No. 6-S/1 of 1996/83 son of late Shri Pritam Singh earlier to the present had filed Civil Suit No.8 of 1980 (Ex.D3) against Shri Rajinder Singh Gujral plaintiff No.2 and Shri Gurudwara Singh Sabha (Plaintiff No.8) bearing Civil Suit No. 6-S/1 of 1996/83 above through its president Shri Darshan Singh Sethi impleading the State of Himachal Pradesh as a proforma respondent, seeking declaration to the effect that he had acquired the right of ownership by way of adverse possession qua the land owned by Smt. Lajwanti and sought the consequential relief of injunction against Gurudwara Singh Sabha in respect of the land comprised in Khasra Nos. 660, 661 to 664, 666, 667, 674/1 and 703/1 kita 9 measuring 2-17 Bighas to which he claimed possession and the said land was in possession of Lajwanti as an occupancy tenant. Precisely his case in the earlier suit was that he had migrated from Tehsil Dehra and started looking after said Smt. Lajwanti. Since Lajwanti was issueless and there was no other near relation to look after in her old age, in appreciation of the services rendered by him, she agreed to hand over the possession of the entire land in dispute to him for cultivation, somewhere in the year 1967 so - 4 - that she could maintain herself of the income accrued therefrom. Thereafter Nanak Singh took over the complete charge of the land in dispute and reclaimed the land and raised an orchard and also made some additional and alterations. It was also his case that the main house remained in his possession and he used to rent out, its portion to the tenants even during her life time and also thereafter. His relations with deceased Lajwanti remained like her son. Said Shri Rajinder Singh Gujral (an IFS Officer) was not seen in and around during her life time. He remained on deputation to the foreign country. It was also averred that in the year 1978 the store and building standing on khasra No.667 with its open front was converted into Gurudwara for the general public for worship along with a passage in khasra No.665. Thus Gurudwara Singh Sabha was established thereon to enabling the inhabitants of the village and others to perform their daily prayers. It was alleged that said Sabha had tried to grab the whole property and started causing interference into the adjoining land and house. On 19.1.1980, the Sabha forcefully occupied the adjoining room and threatened to dispossess him from the remaining property. He then requested the Tehsildar for recording him in possession in the revenue record either as occupancy or non-occupancy tenant and prayed for a decree in his favour as aforesaid. Only the Gurudwara Singh Sabha (defendant No.2) contested the suit and had filed written statement Ex. PX-3, assailing the locus-standi of Nanak Singh to file the suit and denied his claim in toto. It was specifically averred that by a - 5 - Will of Sardar Ajit Singh husband of Sardarni Lajwanti the entire property bequeathed in her favour, was to be utilised only for religious purposes, thus she was not competent to create, vest or divest any right in any person. Further, the legatee had also made a provision for her maintenance, thus she was not in need of any personal services as alleged and prayed for the dismissal of the suit. It shall be pertinent to note that an application (Ex.PZ) was also moved by Nanak Singh in the earlier suit restraining the defendants Rajinder Singh Gujral and Gurudwara Singh Sabha, from causing any interference in his possession, which was allowed by the then Sub Judge. His orders were challenged in appeal and ultimately the matter went to the High Court. In the revision petition vide its order Ex.DW13/W, dated 11.12.1980, the High Court on the concession of the parties deleted the name of defendant No.1. Rajinder Singh Gujral who was stated to be abroad on a ‘foreign assignment’. The remaining parties mutually agreed by making a statement at bar to maintain status quo till the disposal of the suit in the application moved under Order 39 Rules 1 and 2 CPC. Thus the High Court on 11.12.1980 ordered that ‘the possession of either of the party be not disturbed and they would also not cause any interference or obstruction to Granthi for using glazed veranda as a passage, which was in occupation of the plaintiff Nanak Singh’. The order is Ex.DW13/W on record. - 6 - Later, the earlier suit filed by Nanak Singh was withdrawn on 10.3.1981 by him, with a permission to file afresh, but no such suit was filed by him, again. However, then in the year 1981 a Civil Suit No.12 of 1981 was filed on 17.3.1981 in the High Court by ”Shri Guru Lal Ajit Memorial Sabha” through its president Shri Nanak Singh Gandhi, only against Shri Gurudwara Singh Sabha and later arrayed Ajit Lajwanti Gujral Trust as defendant, which was thereafter assigned to the learned District Judge for its disposal as it fell within his jurisdiction as it fell in his jurisdiction on account of amendment in enhancement of pecuniary jurisdiction, it was then registered as Suit No.38-S/1 of 1981 in his court. Facts of Civil Suit No.12 of 1981 (38-S/1 of 1981. The plaintiff Gurudwara Lal Ajit Memorial Sabha through its President Nanak Singh in its plaint averred that Sardarni Lajwanti w/o Sardar Ajit Singh, the owner of the suit property, had died issueless in the month of May, 1970. As per her wishes, said Nanak Singh Gandhi, established a Gurudwara on a portion of the land in dispute, with a view to open such a Gurudwara for general public, thus he constituted a Gurudwara Committee consisting of five members including himself as its President. The said committee was got registered under the Societies Registration Act, 1960. Nanak Singh, its President was authorised to institute the suit. It was also averred that ‘Gurudwara Singh’ Sabha failed to manage the Gurudwara properly and one of its portion was converted for the enjoyment of the family of its office bearers, the - 7 - electricity charges were not paid, which caused the disconnection of the electric meters. However, it was got restored by Nanak Singh aforesaid. The defendant Gurudwara Singh Sabha did not take any interest rather misutilized the property. The plaintiff also gave a reference of earlier suit filed by Nanak Singh, which was withdrawn on 10.3.1981 with a liberty to file the fresh suit on the same cause of action. It was averred that the temporary injunction was granted in his favour in the earlier suit, but the said orders were defied and a contempt petition was also filed against the Gurudwara Singh Sabha. It was further averred that the possession of the Gurudwara including its passage was not handed over to the Plaintiff- Society but it was unauthorisedly used as a picnic- spot. Hence sought the decree, for possession of the portion of building, known as “Rock Dene Estate”, existing over khasra No.667 and the passage through khasra No.665, 670 and 671 and also the relief of injunction qua other portion of the land in dispute. PLEA OF DEFEDNANTS The Gurudwara Singh Sabha defendant No.1 had put in appearance through its President Darshan Singh and resisted and contested the suit. In its written statement dated 16.4.1981. It raised the preliminary objections of maintainability of the suit and took up the objection that without complying with the provisions of Section 92 of the Code of Civil Procedure, the suit was not competent inter-alia valuation and jurisdiction. It was specifically averred that the plaintiffs had no legal and enforceable right, and raised the - 8 - plea of estoppel and categorically denied the possession of the plaintiff in any capacity. It was further pleaded that the suit was bad for non-joinder of necessary parties i.e. State of Himachal Pradesh and Shri Rajinder Singh Gujral. On merits, it was further averred that the defendant Sabha set up the Will of Sardar Ajit Singh dated 2.2.1965 whereby he had created a Trust of the estate owned and possessed by him. One Sh. Lakhwinder Singh in his becoming incapable Bakhria Shiv Charan Dass, was approved as the executor. Lajwanti was provided maintenance and after her death the property was to be handed over to a charitable Trust. It was denied that Smt. Lajwanti had ever expressed her will to establish a Gurudwara. It was specifically pleaded that the plaintiff committee was the creation of mischievous design of Sardar Nanak Singh Gandhi who intended to grab the entire property. His authority to represent the said Society was also disputed. It was specifically averred that Ajit Singh the husband of the Lajwanti was an absolute owner of the land in dispute who had executed his last Will as aforesaid. It was pleaded that after the death of Ajit Singh, trustees aforesaid instead of providing maintenance to Lajwanti, allowed her to maintain herself out of the property in question, but the ownership never devolved on her, however, on her death, Rajinder Singh Gujral tried to lay his claim on the trust property and appointed Nanak Singh Gandhi as a care-taker. Thus, Bakhsi Shiv Charan was approached by the said defendants to accomplish the object of the last Will executed by Sardar Ajit Singh. Bakshi Shiv Charan Singh supplied the - 9 - copy of the Will to them and delivered the possession of the land in suit in July, 1978, thus the defendant acquired its full control and thereafter they established the Gurudwara and employed Granthi and other workers. They were also provided the residences in the said property. It was also pleaded that Parveen Singh brother of Nanak Singh Gandhi was also employed as a Sevadar who was residing in the same premises alongwith his brother Nanak Singh. In nut-shell, the defendant Guru Singh Sabha denied the plaintiff to be legal entity, thus not authorised to manage the affairs of the charitable trust. The other averments made in the plaint were totally denied. It was alleged that the withdrawal of the earlier suit, filed by Nanak Singh, was because of the reason that it was a false claim stacked by him. He took back the documents filed with the plaint and never bothered to file the suit again on the same cause of action because of the liberty given to him. However he devised a novel method by creating a fake society challenging the right of the defendant to manage the property and by pleading the on the wrong facts. It was pleaded that the defendant-trust raised the donations for the establishment of the School in the property in dispute to fulfil the object of the trust deed. In nut-shell the claim of the plaintiff is totally denied and sought dismissal of the suit. In replication, the plaintiff had denied the preliminary objections and even paras of the merits were re-affirmed. The case was adjourned for the statement of the parties before the settlement of issues on 16.9.1981. The Statement of Shri Nanak Singh, President of the plaintiff’s Society, was - 10 - recorded. Precisely, he made the statement on 16.9.81 that Smt. Lajwanti had died issueless, therefore, the property stood escheated to the State. Thus a preliminary issue was formed that in view of the statement of the President of Plaintiff’s Society recorded above, the plaintiff has locus standi to maintain the suit? Thereafter, vide order dated 3.12.1981, this Court observed that the plaintiff had claimed two reliefs in respect of two properties in paras 10(a) and 10(b), therefore, the matter cannot be disposed of on the preliminary issue, thus, on the pleadings of the parties, the following issues were framed on 3.12.1981:- 1. Whether the suit is not maintainable in the present form for the reasons stated in para 1 of the preliminary objections contained in the written statement? 2. Whether the suit is properly valued for the purposes of court fees and jurisdiction? 3. Whether the plaintiff is estopped by his own conduct and acts from filing this suit? 4. Whether the plaintiff put the defendant in possession of the property detailed in para 10(a) of the plaint? 5. If issue No.4 is proved in favour of the plaintiff, whether the plaintiff is entitled to possession in respect of the said property? 6. Whether the plaintiff is in possession in respect of the property mentioned in para 10(b) of the plaint? If so, is the plaintiff entitled to the injunction prayed for in respect of the said property? 7. Relief. - 11 - Vide order dated 8.10.1984, the present suit and Civil Suit No.44 of 1983 were consolidated and the proceedings were recorded in the present suit i.e. Suit No.12 of 1981 and it was ordered that the preliminary issues framed in civil suit No.44 of 1983 on the basis of the application filed on 3.4.1984 stood disposed of. It is pertinent to note that another Civil Suit No.44 of 1983 was filed in the High Court by Ajit Lajwanti Gujral Trust through Smt. Kasbir Kaur Kochhar, Rajinder Singh Gujral and Sh. Darshan Singh President of Gurudwara Singh Sabha and also by Smt. Jasbir Kaur in her personal capacity against Nanak Singh Gandhi, Praveen Singh and Shri Gurudwara Lal Ajit Memorial Sabha (plaintiff in Civil Suit No.38-S/1 of 1985/81) and also Devi Chand, Ram Dass, Smt. Roshni Devi, Jiwan Singh, Pritpal Singh, Mehtab Singh, Narinder Singh and Devi Parshad members of Gurudwara Ajit Lal Memorial Sabha, whereas, Giani Iqbal Singh Kingra, Smt. Surjit Kalra, Jagat Singh and Gurudwara Singh Sabha were impleaded as proforma defendants, who were later ordered be transposed to be arrayed as the plaintiffs vide order dated 2.9.1983. Vide order dated 17.3.1984, passed in Civil Suit No.12 of 1981 (38-S/1 of 1985/81) on the application (OMP No.479 of 83) the Court ordered to implead “Ajit Lal Gujral Trust” as defendant No.2. Facts of Civil Suit No.44 of 1983 (6-S/1 of 1996/1983) Thus suit was filed in the High Court on 19th May, 1983 by Ajit Lajwanti Gujral Trust and others during the pendency of C.S. No.12 of 1981 (C.S. No.38-S/1 of 1981), against Nanak - 12 - Singh Gandhi and others detailed above, seeking decree for possession and permanent prohibitory injunction with respect to the land in dispute. In brief, the averments made in the plaint were that after the death of Smt. Lajwanti the sole owner, the property devolved in Rajinder Singh Gujral as her sole legal heir on the basis of Will, dated 2.2.1968 duly executed by her, during her lifetime which was registered before the Sub-Registrar Kasumpti on 2nd January, 1970. It was pleaded that Sardarni Lajwanti was exclusive owner in possession of the property and it was averred that Sardar Ajit Singh, his wife Lajwanti and plaintiff No.2 Sardar Rajinder Singh Gujral were desirous of doing some public charitable work, thus, plaintiff No.2 ( Rajinder Singh Gujral) with a view to establish a Sikh Gurudwara and to establish a ‘Khalsa Public School’ created a trust known as “Ajit Lajwanti Gujral Trust”, through a deed of trust executed on 4th July, 1982 at Shimla and got it registered in the office of Sub-Registrar, Shimla on 5th July, 1982 by which it conveyed and transferred in favour of the said trust the properties mentioned in para-4 of the plaint i.e. the land in dispute. Thus, the said trust became its owner through its trustees. Since Rajinder Singh Gujral aforesaid had a foreign assignment with United Nations Development Programme (UNDP), it was not possible for him to personally look after and manage the property, therefore, with a view to properly manage the property, he engaged the services of Sardar Nanak Singh (defendant No.1) as a Caretaker of the said property who had been looking after the entire property for - 13 - sometime. It was alleged that for the last three years, Nanak Singh started laying the false claim to the property and started repudiating the title of plaintiff No.2 of which he came to know in the year 1982 when he happened to visit India during his leave. Since Nanak Singh was living with his brother, he was appointed as Caretaker by plaintiff No.2 he manipulated to form a bogus society in the name for defendant No.1 and got it registered. He also unlawfully occupied the main portion of the Kothi by breaking open the lock and took some articles lying inside the said Kothi shown in the red ink in the plan attached. It was also averred that the rest of the portion of the property remained in occupation of plaintiff No.2. The property standing on it comprising in khasra Nos.670/1, 672 and 674 remained in possession of M/s Byford Private Limited as a tenant of plaintiff No.2. Their tenancy was determined by him, but their possession was not delivered despite notice thus separate suit was contemplated against them. It was also averred that remaining portion of the property remained in possession of the plaintiff society through its trustees and proforma defendants. The plaintiffs alleged the interference into their possession by the defendants without any authority. The plaintiff claimed the possession of the property mentioned in para No.7(a) of the plaint and permanent prohibitory injunction qua the remaining land and also laid the claim of Rs.6,000/- as damages for the use and occupation of the property and future damages at the rate of Rs.3,000/- per month. The suit was contested by the defendants and in their written statement, dated 18.11.1983 verified by Sh. Nanak - 14 - Singh Gandhi defendant No.1, raised their preliminary objections that a previously instituted civil suit No.12/1981 (38- S/1 of 81) was pending in the court, in which the matters in issue directly and substantially were the same and the instant suit is hit by Section 10 of the Code of Civil Procedure, which deserved to be stayed. Defendants also raised the objection of estoppel and on merits admitted that Lajwanti wife of Sardar Ajit Singh was owner of the suit property and she continued as such till her death. The Will alleged to have been executed by her on 2.2.1968 is specifically denied. The possession of the plaintiff as alleged is denied by them. It is specifically averred that Nanak Singh defendant remained in possession of the suit property during the lifetime of Smt. Lajwanti and after her death established a Gurudwara as per her wishes on a portion of her property which is alleged to be in unauthorised possession of Gurudwara Singh Sabha, the plaintiff No.3. It is admitted that the said Sabha constituted a Committee to look after and maintain the Gurudwara, however, in the month of July, 1978, defendant No.3 requested Gurudwara Singh Sabha to maintain the affairs of Gurudwara on the portion of the property in dispute, in the interest of general worshippers. It was specifically agreed that in case Shri Gurudwara Singh Sabha failed to maintain the affairs of Gurudwara, they would take back the management from Gurudwara Singh Sabha. Thereafter, in the month of January, 1980, when it was found that Shri Gurudwara Singh Sabha was mismanaging the affairs of the Gurudwara and not maintaining it for the best interests of the worshippers and had failed to make the - 15 - payment of the electricity and water bills, Gurudwara Singh Sabha was requested to stop to run the management and handover the possession of the premises of the Gurudwara, but in turn, defendant No.3 threatened to take the forcibly possession of the entire property, as such Nanak Singh defendant No.1 had filed a civil suit No.8 of 1980 Ex.D3 seeking declaration and the relief of injunction as mentioned in ground No.3, which was later on withdrawn with permission to file a fresh suit. This liberty was granted on 10.3.1981. On an application for temporary injunction, the Sub Judge had visited the spot and found defendant No.1 in possession of the suit property and recorded in his order dated 5.4.1980. It was further averred that after the withdrawal from the court of subordinate Judge, a fresh civil suit No.12 of 1981 was filed. It is important to note that Civil Suit No.12 of 1981 was filed by Gurudwara Laj Ajit Memorial Sabha and not by Nanak Singh in his individual capacity. Rest of the contents were denied and prayed for dismissal of the suit. The statements of Nanak Singh and Praveen Singh his defendant brother were recorded on 3.4.1984 before settlement of issues, in Zimni orders part at pages A9 and A10 in file of C.S. No.44 of 83. Precisely, Nanak Singh on oath claimed his possession over the suit land except two rooms which were in possession of Gurudwara Singh Sabha since 1980 and stated that he used to cultivate the agricultural land since 1966-67. He had no relationship with