IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA RSA No.384 of 1999 Judgment reserved on:14.5.2009 Date of decision: 29.5.2009 State of Himachal Pradesh ….. Appellant. Vs. Prem Chand and Ors. …. Respondents. Coram The Hon’ble Mr. Justice Kuldip Singh, Judge. Whether approved for reporting?1 No For the Appellant : Mr. Anshul Bansal, Addl. Advocate General. For the Respondents : Mr. B.R. Verma, Advocate. Kuldip Singh, Judge. This judgment shall dispose of RSA No.384 of 1999 and C.O. No.93 of 2000. The appeal has been filed by the State who was defendant in the suit and the cross-objections have been filed by the appellant in the appeal to the effect that the lower appellate Court has erred in characterising the suit property as debutter property as against the findings recorded by trial Court that the cross-objectors are owners in possession of the suit property. 2. The brief facts of the case are that respondents had filed a suit for declaration that they are owners in possession of suit Whether the reporters of the local papers may be allowed to see the Judgment? …2… property comprised in khasra Nos. 91,92,93,94,95,87,98 and 115 measuring 670.21 sqm. situate at up-muhal Kasba Bazar, Rampur. It has been further pleaded that daughter-in-law of the ruler had gifted a house known as ‘Bera’ situate in Gopalpur alongwith deity Thakur Balgopal Ji to Inder Dev purohit predecessor-in-interest of respondents. The gift was confirmed by the ruler in Samvat 1955 by issuing patta. The gift was again confirmed by Rani in Samvat 1969. Chander Mani grand father of the respondents succeeded to Inder Dev and became purohit of ruler. In Samvat 1976 Chander Mani shifted to Kasba Bazar, Rampur where he was provided one house and a few bighas of land . Chander Mani had brought diety Thakur Balgopal Ji alongwith him to Rampur and had kept the same in the said house. Thakur Balgopal Ji was personal diety of Chander Mani. The further case of the respondents is that in lieu of house property given to Chander Mani by the ruler Chander Mani had left in exchange the entire ‘Bera’ at Gopalpur, therefore, Chander Mani became absolute owner in possession of the house and surrounding land in kasba bazar, Rampur in Samvat 1976. It has also been alleged that even after the exchange the property at kasba bazar along with surrounding land had been shown to be owned by ruler and after him State of Himachal Pradesh and such entries are wrong. In alternative the respondents have taken the plea of adverse possession. 3. The suit was contested by appellant by filing written statement, in which preliminary objections of jurisdiction maintainability, cause of action, limitation, valuation, notice under …3… Section 80 CPC were taken. On merits, it was denied that any gift was made in favour of predecessor-in-interest of respondents as alleged. It was pleaded that Chander Mani was mohatmim of temple Thakur Ji Gopalpur. Inder Dev was never owner in possession of land in Chak ‘Bera’. Mohatmim cannot become owner of the property of the temple. The adverse possession of the respondents on the suit land was denied. In brief, the appellant denied the claim of the respondents on the suit land. On the pleadings of the parties, the following issues were framed:- 1. Whether plaintiffs are owners in possession of suit land? OPP 2. Whether this court has no jurisdiction to try the suit? OPD 3. Whether this suit is not maintainable in the present form? OPD 4. Whether suit is barred by limitation ? OPD 5. Whether the suit is not properly valued? OPD 6. Whether the notice served upon the defendant is not valid? OPD 7. Relief. The learned sub judge had answered issue No.1 in affirmative and issues No.2 to 6 in negative and decreed the suit on 16.12.1996. The learned District Judge allowed the appeal partly and held that Thakur Balgopal is owner of the suit property and diety is in possession through the respondents being successors-in-interest of the original shebait Inder Dev. The question as to inheritance to the office of shebait was not involved in the case, therefore, the said question was left upon. The respondents were given liberty to settle …4… the said question as and when they liked. The judgment, decree dated 16.12.1996 passed by the trial Court was accordingly modified. The second appeal has been admitted on the following substantial questions of law:- 1. Whether the predecessor-in-interest of the respondents in his capacity being mohatmim of Deity was competent to effect exchange of the land gifted to the Deity? 2. Whether the predecessor-in-interest of the respondents in his capacity being mohatmim of the Deity had power to change the place of abode of Deity? The respondents have filed cross-objections to the effect that they are exclusive owners of the suit property. 4. Heard and perused the record. The learned Addl. Advocate General has submitted that learned District Judge has erred in declaring that deity is the owner in possession of the suit property through respondents mohatmim. It has been submitted that State is the owner of the suit property. The learned counsel for the respondents-cross objectors while supporting the impugned judgment, decree has submitted that the respondents are exclusive owners of the suit property. The impugned judgment, decree to the contrary are wrong. 5. The substantial questions of law No.1 and 2 are interconnected regarding the competency of mohatmim, therefore, substantial questions of law No.1,2 are being taken up together for …5… disposal. The competency of the mohatmim to handle deity property was not disputed by the appellant in the written statement. It was never the case of the appellant that mohatmim of the deity was not competent to give the property in exchange. The case of the appellant was that property was never gifted as claimed by respondents. The State is the owner of the suit property. On the other hand, the case of the respondents is that the suit property was gifted to their predecessor Inder Dev, the property then came to Chander Mani and thereafter to respondents. According to respondents their predecessor Inder Dev was purohit of ex-ruler, Bushahr State. The daughter-in-law of the ex-ruler of Bushahr State gifted ‘Bera’ at Gopalpur along with deity ‘Thakur Balgopal’ to Inder Dev. The gift was acknowledged and confirmed by the ex-ruler in samvat 1955 by issuing patta. The gift was again confirmed and acknowledged by Rani of ex-ruler, Bushahr State in Samvat 1969 along with other landed property. 6. PW-1 Prem Chand in his statement in the Court has stated that Rani had gifted ‘Bera’ Gopalpur ‘Thakur Balgopal’ after ‘sankalap’. In case the property was given to Inder Dev in his personal capacity then there was no requirement of ‘sankalap’. Rani gifted the property to the deity and therefore, ‘sankalap’ was done. PW-1 in his statement has no where stated that property was given to Inder Dev in his personal capacity. PW-1 has not stated that after Inder Dev property came in the hands of Chander Mani in his personal capacity and after Chander Mani the suit property came to respondents in their personal capacity. It is thus clear Rani gifted …6… the property to deity and not to Inder Dev predecessor-interest of the respondents. Inder Dev was the mohatmim of the deity and after Inder Dev, Chander Mani became mohatmim of the deity. The learned District Judge has recorded a finding of fact that once the property was gifted to the deity, it became its full and absolute owner. The deity thus came in possession through respondents and their predecessor. More over substantial question of law No.1 also indicates that the property was given in gift to deity. In substantial question of law No.1 competency of mohatmim for exchange has been raised and not that property was not gifted to deity. 7. PW-1 in his statement has stated that in Samvat 1976 ex-ruler, Bushahr State took back ‘Bera’ and in lieu thereof property was given at kasba bazaar, Rampur. This indicates that the property at kasba bazar, Rampur was given in place of ‘Bera’ and thus deity became the owner of the property at kasba bazaar, Rampur through respondents and their predecessors. It is not the case of the appellant that predecessor-in-interest of respondents in his capacity as mohatmim of deity was not competent to exchange the gifted land. In the grounds of appeal of the lower appellate Court no such plea was taken by appellant. Therefore substantial question of law No.1 does not emerge from the stand taken by the appellant in the written statement. Insofar as the 2nd substantial question of law is concerned, it does not arise in the present dispute. The change of abode of the deity has nothing to do with the ownership of the suit property by deity. The deity shall remain the owner of the land irrespective of the abode of the deity till ownership of the land of the …7… deity is divested in accordance with law, which appellant has failed to prove. Therefore, substantial questions of law No. 1 and 2 are decided against the appellant. 8. The respondents have filed cross-objections without pointing out any substantial question of law. In RSA No.643 of 2000 decided on 4.4.2003, it has been held that cross-objections under Order 41 rule 22 CPC in an appeal against the appellate decree can be maintained only, if the substantial question of law is raised therein. PW-1 Prem Chand in his statement has nowhere stated that suit property was given to his ancestors by Rani or by ex- ruler in their personal capacity nor he has specifically stated that suit property was not given to deity. The cross-objections are thus devoid of any substantial question of law and are liable to be rejected. 9. The learned District Judge has properly appreciated the material on record. The appellant as well as respondents-cross- objectors have failed to make out any case for interference. In view of above discussion, there is no substance in the appeal as well as in the cross-objections . 10. No other point was urged. 11. The result of the above discussion, the appeal as well as cross-objections are dismissed with no order as to costs. May 29, 2009. ( Kuldip Singh ) (sks) Judge.