Reserved Judgment IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL First Appeal No. 14 Of 2004 Raghubir Singh S/o Late Sri Jai Vir Singh, R/o Batala Ashram, Mohalla Hanuman Ghari, Kankhal Jwalapur Road, Kankhal, Pargana Jwalapur Haridwar ……………Appellant / Defendant Versus (1) Mahander Sen Sarin, S/o Late Sri Bhagat Ram Sarin, Chairman and Managing Trustee “Batala Ashram Trust”, Mohalla Hanuman Ghari, Kankhal Jwalapur Road, Kankhal, Pargana Jwalapur, Haridwar. (2) Satish Chandra Sarin, S/o Late Sri Bhagat Ram Sarin, R/o Batala Ashram Trust, Mohalla Hanuman Ghari, Kankhal Jwalapur Road, Kankhal, Pargana Jwalapur, Haridwar. (3) Sudarshan Kumar Sarin, S/o Late Sri Bhagat Ram Sarin, R/o Batala Ashram Trust, Mohalla Hanuman Ghari, Kankhal Jwalapur Road, Kankhal, Pargana Jwalapur, Haridwar. (4) Harikrishan Sarin, S/o Late Sri Bhagat Ram Sarin, R/o Batala Ashram Trust, Mohalla Hanuman Ghari, Kankhal Jwalapur Road, Kankhal, Pargana Jwalapur, Haridwar. (5) Prem Kumar Sarin, S/o Late Sri Bhagat Ram Sarin, R/o Batala Ashram Trust, Mohalla Hanuman Ghari, Kankhal Jwalapur Road, Kankhal, Pargana Jwalapur, Haridwar. (6) Sudesh Kumar Sarin, S/o Late Sri Bhagat Ram Sarin, R/o Batala Ashram Trust, Mohalla Hanuman Ghari, Kankhal Jwalapur Road, Kankhal, Pargana Jwalapur, Haridwar. …………Respondents / Plaintiffs Sri D. Barthwal, Advocate for the appellant. Sri Rajendra Dobhal, Senior Advocate, assisted by Sri G.D. Joshi, Advocate, for the respondents. Hon’ble Prafulla C. Pant, J. This appeal, preferred under Section 96 of Code of Civil Procedure, is directed against the judgment and decree dated 17.02.2004, passed by the trial court (Additional District Judge / III Fast Track Court, Haridwar), in Original Suit No. 01 of 1989. (2) Heard learned counsel for the parties and perused the Lower Court Record. (3) Brief facts of the case, giving rise to this appeal are that plaintiffs (present respondents) instituted Suit No. 01 of 1989, seeking relief of prohibitory injunction in respect of property mentioned in Schedule-A in the plaint, restraining the defendant (present appellant) from interfering in the possession of the plaintiffs in property Schedule-A. Also, the plaintiffs sought relief of possession in respect of property mentioned in Schedule-B. It is pleaded in the plaint that properties mentioned in Schedule-A and B, marked with letters A, B, D, E and F respectively, are properties belonging to “Batala Ashram”. It is further pleaded that plaintiffs are trustees of the Ashram property. As per the plaint case, one Pundit Munshiram, Sukhdayal and Khushalchand (elder brother of the plaintiffs’ father) purchased the property mentioned in Schedule-A through registered deed dated 15.01.1932. They (Pundit Munshiram, Sukhdayal and Khushalchand) created a trust through registered trust deed dated 06.08.1934. As per the trust deed, they became trustees of the property. After death of Sukhdayal (one of the trustees), as per his Will, the other trustees, namely, Pundit Munshiram and Khushalchand continued to as trustees of the property. Pundit Munshiram died issueless. The surviving trustee Khushalchand, thereafter, made one Dharatram, who belongs to family of Pundit Munshiram, as co-trustee. On 24.09.1946, these two trustees, namely, Khushalchand and Dharatram executed a new trust deed, wherein provision was made that after death of Khushalchand apart from Dharatram, Bhagatram (father of the plaintiffs), Haridev, Ratanchand, Gyanchand, Gurdas Singh, Diwanchand and Madan Lal would function as co-trustees. A further provision was made on death of Dharatram, Bhagatram (father of the plaintiffs) and Haridev, their heirs would become trustees of the property. And, thereafter, only with the consent of the surviving trustees new trustees could be appointed. Plaintiffs No. 1 to 3 being heirs of Bhagatram became trustees of the property in suit. In the year 1986, with the consent of all the trustees a new trust deed was executed and got registered. As trustee Haridev had become old and infirm, three new trustees plaintiffs No. 4 to 6 were made co-trustees. Since then, all the six plaintiffs are managing the property in suit of “Batala Ashram”, as its trustees. Trust property consist of a grove and also two buildings. Defendant was appointed in 1986 as a Caretaker / SEWADAAR in the trust property to look after it and as a licensee he started living in the property mentioned in Schedule-B. After sometime, defendant with dishonest intention started committing irregularities in the trust property. Therefore, in the year 1987, he was removed from the service as Caretaker (SEWADAAR). In his place one Brujbhushan Lal Sharma @ Mishra was appointed to look after the trust property. Defendant did not vacate the premises mentioned in Schedule-B. After death of Brujbhushan Lal Sharma, one Rampher was appointed as Chaukidar. Meanwhile, defendant illegally inducted one Sanjay Paliwal in the property. Sanjay Paliwal got a part of the property in Schedule-B allotted through Rent Control Officer, Haridwar, in respect of which litigation is still going on. When defendant refused to vacate the premises in Schedule-B, the present suit was filed for possession of property mentioned in Schedule-B and also for injunction in respect of property mentioned in Schedule-A i.e. the grove. (4) Defendant / appellant contested the suit and filed his written statement before the trial court in which it is admitted that the property mentioned in Schedule-A of the plaint is known as “Batala Ashram”, but it is denied that the plaintiffs are trustees of said Ashram. However, it is not denied that the land belonged to Pundit Munshiram, Sukhdayal and Khushalchand, who executed trust deed dated 06.08.1934 and donated 1 Bigha 5 Biswas land for charity. It is also stated that later Dharatram, Ramjilal, Bhagatram, Lala Harichand and Lala Amolakram were appointed trustees. However, as to the rest of the contents of the plaint, the same are denied. It is pleaded by the defendant (present appellant) that as per the terms of the trust deed the hereditary rights of Manager were to be inherited by his heirs to look after the trust property. It is further pleaded that defendant’s father was appointed as Manager to take care of the trust property and after his death defendant is managing the affairs. It is alleged in the written statement that plaintiff No. 1 wrongly got his name entered in the municipal record on the basis of a forged trust deed. It is also pleaded that there cannot be more than five trustees of the trust executed vide trust deed dated 06.08.1934. Denying rights of the plaintiffs, claimed by them, it is stated that the trust deed dated 24.09.1946 mentioned in the plaint is illegal and does not confer any rights on the plaintiffs. It is denied that the defendant was appointed as Caretaker / SEWADAAR in the year 1986 or that he was removed in the year 1987. It is also denied that any Brujbhushan or Rampher were appointed as Manager or Chaukidar. As to the allotment in favour of Sanjay Paliwal by Rent Control Officer, it is stated that the defendant did not make said person illegally occupy any accommodation. It is stated that the grove (property Schedule-A) is looked after by a Contractor Shyam Singh and suit suffers from non- impleadment of said party. He (Shyam Singh) has instituted a Suit No. 292 of 1988 before Munsif, Haridwar, in which the present plaintiff No. 1 Mahander Sen Sarin is defendant. Lastly, it is pleaded by the defendant that the suit is liable to be dismissed. (5) On the basis of the pleadings of the parties following issues were framed by the trial court:- (i) Whether the plaintiffs have appointed defendant as Caretaker / SEWADAAR to look after the trust property and was he allowed by the plaintiffs to reside as a licensee in property mentioned in Schedule-B of the plaint? (ii) Whether the plaintiffs removed the defendant in the year 1987 from the post of Caretaker / SEWADAAR and licence granted to him to use the property mentioned in Schedule-B, stood revoked? (iii) Whether the defendant illegally permitted third parties to occupy property mentioned in Schedule- A of the plaint? (iv) Whether the defendant has any right to continue to occupy the disputed property? (v) Whether the plaintiffs are the trustees and are they entitled to maintain the suit? (vi) Whether the defendant continues to work as Manager in terms of the trust deed as alleged by him? (vii) Whether due to pendency of Suit No. 292 of 1988, the present suit is not maintainable? (viii) Whether the suit is under valued and court fee paid is insufficient? (ix) To what relief, if any, the plaintiffs are entitled? (x) Whether the admission made by the plaintiffs in deed or paper No. 70A-1 is binding on them? If so, its effect? After recording evidence and hearing the parties, the trial court found that the plaintiffs No. 1 to 3 are the trustees of the trust property. It further found that the defendant was merely a Caretaker and allowed to live in the property Schedule-B as a licensee and his licence has already stood terminated. Findings on other issues are also in favour of the plaintiffs. The trial court (Additional District Judge / III Fast Track Court, Haridwar) decreed the suit vide its impugned judgment and decree dated 17.02.2004, passed in Suit No. 01 of 1989, aggrieved by which this appeal is filed by the defendant. (6) Admittedly, the property in question originally belonged to Pundit Munshiram, Sukhdayal and Khushalchand who created a trust by executing a trust deed dated 06.08.1934. It is also not disputed that Dharatram, Ramjilal, Bhagatram, Harichand and Amolakram were appointed trustees to look after the trust property after the death of original trustees (i.e. three executants of trust deed dated 06.08.1934). The first point of determination before this Court is as to whether the plaintiffs (present respondents) are the trustees of the trust property known as “Batala Ashram” or not. Evidence adduced on behalf of the plaintiffs (present respondents) that after death of Pundit Munshiram another original trustee Sukhdayal also died is un-rebutted. Plaintiffs have further proved that in 1946 fresh trust deed was executed naming Dharatram, Bhagatram (father of plaintiffs), Haridev, Ratanchand, Gyanchand, Gurdas Singh, Diwanchand and Madan Lal. The said document is also proved on the record and on the basis of said trust deed heirs of Dharatram, Bhagatram and Haridev were to succeed the three after their death, as trustees. P.W.1 Mahander Sen Sarin (plaintiff / respondent No. 1) has stated on oath that he inherited trusteeship from his father Bhagatram. It is also proved on the record that plaintiffs are the real brothers and sons of Bhagatram. It has also been stated by P.W.1 Mahander Sen Sarin that original trustee Khushalchand was real brother of Bhagatram. In the year 1986, the only surviving trustee Haridev, who was appointed trustee in the year 1946 with plaintiffs executed fresh trust deed on 23.06.1986 in respect of the property in suit, whereby the plaintiffs were appointed trustees. The defendant has taken the plea that as per the trust deed of 1934 it was not open for the single trustee to execute any fresh trust deed. But, in the circumstances of the case, after death of the two original trustees, in the opinion of this Court the surviving trustee had a right to execute the trust deed for appointment of Dharatram, Bhagatram, Haridev, Ratanchand, Gyanchand, Gurdas Singh, Diwanchand and Madan Lal as trustees in 1946. This Court agrees with the trial court that though provisions of Indian Trust Act, 1882, are not applicable to this case as it is not a private trust but analogy on which the provision is made under Section 73 of said Act, the surviving trustee has a right to appoint new trustees so that the object of creating original trust may not be defeated. The execution of the trust deed of 1946 is in fact not specifically denied by D.W.1 Raghubir Singh (present appellant). In his cross-examination, he has stated that he does not know whether Khushalchand executed the said deed or not. The trust deed of 1946 is also a registered document, a certified copy of which is paper No.196C on the record. As far as trust deed dated 23.06.1986, executed by trustee Haridev is concerned, it is clearly proved on the record that the sole surviving trustee Haridev of the trust deed of 1946, with the plaintiffs (who were heirs of trustee Bhagatram) in a similar way executed fresh trust deed dated 23.06.1986, which is also a registered document, copy of which is on the record. P.W.1 Mahander Sen Sarin has proved said document. D.W.1 Raghubir Singh has admitted that plaintiffs are sons of Bhagatram. In the above circumstances, this Court concurs with the finding of the trial court that the plaintiffs are the trustees of the trust property in suit. (7) The next question of determination is whether the defendant Raghubir Singh is Manager of the trust property or is he a tenant in the property in suit and as such not liable to be evicted. The case of the defendant Raghubir Singh is that his father was appointed Manger by the original trustees to look after the trust property and after death of his father he is continuing as a Manger in the trust property. D.W.1 Raghubir Singh in his cross-examination failed to disclose when his father was appointed as Manger. He could not tell as to under what terms and conditions his father was appointed as Manager. According to D.W.1 Raghubir Singh his father died in the year 1977. He has stated that his father’s elder brother Raghunandan Singh was an employee in Municipal Board, Haridwar, who was given accommodation in the property in suit on rent. But, when D.W.1 Raghubir Singh was cross- examined he told names of brothers of his father as Kundan Singh, Kishori Lal, Pratap Singh, Mussaddi Lal and Jairam Singh. He did not mention name of Raghunandan Singh. Rather he told in the cross examination that Raghunandan Singh was friend of his father. He has further admitted in the cross examination that Raghunandan Singh died in the year 1955. D.W.2 Rajpal, who entered in the witness box to support the case of the defendant Raghubir Singh though stated that father of the defendant was Manger of the trust property and he used to give grove on contract to the Contractors, but in the cross examination he failed to disclose as to whether contract was given in writing. He could not answer for what amount such contract was given. Assuming for a moment that the defendant’s father was a Manager, there is nothing on record to show that the defendant Raghubir Singh had hereditary rights to act as Manager in the trust property. That being so, the trial court has rightly held that it is not proved on the record that he was a hereditary Manager. In these circumstances, the evidence adducted on behalf of the plaintiffs appears to be reliable that defendant Raghubir Singh was appointed as Caretaker by them in the year 1986, and after he inducted some persons illegally in the trust property as tenant his licence to live in the trust property was revoked. Therefore, the findings recorded by the trial court issues No. 1, 2, 4 and 6 are also upheld. (8) As far as proceedings of Suit No. 292 of 1988 filed by one Shyam Singh in the court of Munsif, Haridwar, are concerned neither the cause of action nor issues nor the parties are same in the present suit and Suit No. 292 of 1988. As such, the trial court has committed no error of law in holding that pendency of Suit No. 292 of 1988 does not affect the maintainability of the present suit. (9) Lastly, it is pleaded on behalf of defendant / appellant that the plaintiffs have admitted in the proceedings of Suit No. 6 of 1991; Suresh Kumar Bansal & others Vs. Raghubir Singh & others, that he is a trustee of the trust property. Admission, if any, in said suit does not help the defendant in the present case, for the reason that it is not pleaded by the defendant in this case that he is a trustee of the trust property in suit. Apart from this, the additional written statement filed in Suit No. 6 of 1991 (copy paper No. 407C/2), in which admission is said to have been made by the present plaintiffs No. 1 to 3 as defendants No. 2 to 4 in said suit shows that no such admission is made by the plaintiffs. Rather it is alleged that Suresh Kumar Bansal and others (plaintiffs in said suit), in collusion with Raghubir Singh (defendant No. 1) are making effort to usurp the trust property. In the circumstances, the finding on issue No. 10 given by the trial court is also upheld. (10) For the reasons as discussed above, this Court does not find any illegality committed by the trial court in appreciating the evidence and deciding the issues in favour of the plaintiffs (present respondents). Therefore, the appeal is liable to be dismissed. The same is dismissed. Costs easy. (Prafulla C. Pant, J.) 22.07.2009 NS