The issue of possession and injunction has attained attention of the Apex Court in two recent cases in the year 2012 wherein the Apex Court has extensively dealt with the question of possession in a suit for mandatory injunction, and permanent injunction filed by a person who was mere caretaker of the property. Considering the scope of the Section 38 and 39 of the Specific Relief Act, in the case of Maria Margarida Sequeria Fernandes & others v. Erasmo Jack de Sequeria (Dead) reported in MANU/SC/0225/2012 : AIR 2012 SCW 2162, it is held in paragraph Nos. 61, 62 and 63 that in civil cases, pleadings are extremely important for ascertaining the title and possession of the property in question. Possession is an incidence of ownership and can be transferred by the owner of an immovable property to another by way of a recognized mode of transfer. Possession of a licensee is the possession of the owner. The question of possession is important where there are no title documents and other relevant records before the Court but once the documents and records of title come before the Court, it is the title which has to be looked at first and due weightage be given to it. Possession cannot be considered in Vacuum.
301. In paragraph No. 64, it has been observed that there is a presumption that possession of a person other than the owner, if at all is to be called possession, is permissive on behalf of the title holder. The question in a matter of injunction is the right of the plaintiff to remain or continue in future in possession. It was observed that the right to continue has been abused and misused before the courts. And it was held that whenever pleadings and documents establishing title to a particular property and possession are in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession. In order to do justice, it is necessary for the court to direct the parties to give all details of the pleadings with particulars. Once the title is prima-facie established, it is for the person, who is resisting the title holders claiming to be possession, to plead with sufficient particulars and produce all such documents which require to establish his claim to remain in possession.
302. In paragraph No. 70, the requirement of pleadings and particulars to be given by a plaintiff seeking injunction have been narrated as under:-
"70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.
(a) who is or are the owner or owners of the property;
(b) title of the property;
(c) who is in possession of the title documents
(d) identity of the claimant or claimants to possession;
(e) the date of entry into possession;
(f) how he came into possession - whether he purchased the property or inherited or got the same in gift or by any other method;
(g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;
(h) If taken on rent, license fee or lease - then insist on rent deed, license deed or lease deed;
(i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.;
(j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and
(k) basis of his claim that not to deliver possession but continue in possession."
303. It is further discussed in paragraph No. 80 that in a suit for mandatory injunction, it is bounden duty and obligation of the Court to critically examine the pleadings and documents and pass an order of injunction while taking pragmatic realities including other factors. The Court's primarily concern is to do substantial justice.
IN THE HIGH COURT OF ALLAHABAD
First Appeal Nos. 55 of 2008, 448 and 472 of 2007
Decided On: 06.03.2017
Radha Sharan Dubey and Ors. Vs. Ram Niwas and Ors.
Hon'ble Judges/Coram:
Sunita Agarwal, J.
Citation: AIR 2017(NOC) 828 ALL
1. Heard Sri Anil Sharma and Sri K.M. Garg, learned counsels for the appellants and Sri Ashish Kumar Singh and Sri Ashish Agrawal, learned counsels for the respondents.
2. The First Appeal No. 55 of 2008 (Radha Sharan Dubey & Another v. Ram Niwas & Others) arises from Original Suit No. 71 of 1992 filed by Radha Sharan Dubey and Shiv Sharan Dubey. The First Appeal No. 448 of 2007 arises out of Original Suit No. 494 of 1992 filed by Registered Trust Maheshwari Kunj Nyas, Govind Ghera Vrindavan, District Mathura through Ghasiram Tapadia as the Secretary of the said Trust and Kishan Lal Tapadia as Power of Attorney Holder of Ghasiram Tapadia. First Appeal No. 472 of 2007 has been filed by Maheshwari Kunj Nyas trust against the judgment in Original Suit No. 71 of 1992 partly decreeing said suit.
3. In First Appeal No. 448 of 2007, the defendants of Original Suit No. 494 of 1992 have filed their cross objections against the findings on certain issues, recorded in favour of Maheshwari Kunj Trust in the said suit. The delay in filing the cross objections has been condoned and the same has been taken on record by order dated 14.9.2012.
4. The above referred three connected appeals and the cross-objection have been heard at length and are being decided together by this common judgment.
5. The Original Suit No. 71 of 1992 was instituted by Radha Sharan Dubey and Shiv Sharan Dubey sons of Ganga Prasad Dubey against Sri Ram Niwas son of Girdhari Lal and Sri Venu Gopal sons of Ram Niwas; Kishan Lal Tapadia son of late Chandan Mal Tapadia; Ghasi Ram Tapadia son of Not known. Registered Trust Maheshwari Kunj Nyas through Ghasi Ram Tapadia was impleaded at a later stage. The relief prayed was to grant a decree of permanent injunction restraining the defendants and their authorised representatives from evicting them or interfering in peaceful possession of the plaintiffs from the suit property, described at the foot of the plaint. Another suit namely Original Suit No. 494 of 1992 was filed by registered trust Maheshwari Kunj Nyas, Govind Ghera through Ghasi Ram Tapadia its Secretary and Kishan Lal Tapadia son of Sri Chandan Mal Tapadia as Power of Attorney of the Secretary of the Trust Ghasiram Tapadia. After death of Ghasi Ram Tapadia, Ram Niwas Mundra was substituted as Secretary of the Trust. This suit was filed against Radha Sharan Dubey and Shiv Sharan Dubey sons of Sri Ganga Prasad Dubey. Sri Ram Niwas son of Gridhari Lal and Venu Gopal son of Ram Niwas were impleaded as proforma defendants in the said suit. The relief sought in original suit No. 494 of 1992 was for permanent injunction against defendant Nos. 1 and 2 namely Radha Sharan Dubey and Shiv Sharan Dubey restraining them from interfering in the managerial rights of the plaintiff No. 1, registered Maheshwari Kunj Trust with regard to Dharmshala known as "Seth Tulsi Ram Kishanlal Boob Roll Walon" situated at Mohalla Govinddeo, Vrindawan, District Mathura, description of the boundaries of the suit property has been given at the foot of the plaint. Further relief was sought to restrain the defendants from realizing rent from the tenants of Dharmshala and from interfering in the work undertaken by plaintiff No. 1 for renovation and maintenance of Dharmshala. Further relief was also sought to restrain the defendants from changing the nature of the suit property or destroying it in any manner.
6. These two suits were clubbed together and decided by the District Judge, Aligarh by judgment and order dated 28.9.2007. The Original Suit No. 494 of 1992 was dismissed being barred by Sections 38 and 41 of the Specific Relief Act. Whereas the Original Suit No. 71 of 1992 was allowed partly with the direction that the plaintiffs of the said suit will remain in possession and will manage the suit property, till they are evicted by the defendants through a legal process. However, the plaintiffs of Original Suit No. 71 of 1992 have been directed not to raise any new construction in the suit property, not to demolish the same or change the nature of the suit property. They have been granted liberty only to make repairs so as to restore the property in its existing form.
7. The plaintiffs of Original Suit No. 71 of 1992 are represented by Sri K.M. Garg and Sri Anil Sharma, Advocates whereas the plaintiffs of Original Suit No. 494 of 1992 are represented by Sri Ashish Kumar Singh and Sri Ashish Agarwal, Advocates.
8. The counsels for the both the parties have been heard at length who have painstakingly taken the Court through the pleadings, the evidences i.e. statements of witnesses, the documents filed in support of their rival claims as also the original record kept in "Wooden Box No. 1". seal of which was broken and it was opened during the course of hearing in the open Court in the presence of the counsels for both the parties.
9. The Court must record that both the counsels have taken it through all the nuances of the case so as to help it to formulate its opinion on each and every aspect of the matter, their assistance is highly appreciated.
10. Coming to the facts of the case, the Trial Court framed six issues on 20.5.1994 on the pleadings in Original Suit No. 71 of 1992. For disposal of Original Suit No. 494 of 1992, eight issues were framed on 20.5.1994. Again after amendment of the pleadings on 24.8.2006, two additional issues were framed in Original Suit No. 494 of 1992 as Issue Nos. 9 and 10. Issue Nos. 1 and 3 of Original Suit No. 71 of 1992 and Issue Nos. 2, 3, 4, 5 and 6 of Original Suit No. 494 of 1992 which pertain to the merits of the claims of the rival plaintiffs and maintainability of their respective suits were taken up and decided together. Issue Nos. 5-A and 5-B of Original Suit No. 71 of 1992 were not pressed and hence decided in favour of the plaintiffs. Issue Nos. 7-A and 7-B of Original Suit No. 494 of 1992 regarding valuation and Court fee of the said suit were decided in favour of the plaintiffs on merits. There is no objection to the findings of the trial court on these issues. So far as the issue No. 4 of original suit No. 71 of 1992 is concerned, it was decided in favour of the plaintiffs as they had amended the array of parties and impleaded registered trust Maheshwari Kunj Nyas as defendant No. 5.
11. Issue Nos. 1 and 10 of original suit No. 494 of 1992 were decided by the trial court in favour of the plaintiffs and it was held that registered trust Maheshwari Kunj is a legal entity and Ghashiram Tapadia being Secretary of the Trust could have maintained the suit. After death of Ghashi Ram Tapadia, Sri Ram Niwas Mundra was elected Secretary of Maheshwari Kunj Trust and was impleaded and had right to maintain the suit.
12. An objection was taken by the defendants that Kishan Lal Tapadia, the plaintiff No. 2 cannot maintain the suit as Power of Attorney of Ram Niwas Mundra and with the death of Ghashi Ram Tapadia, registered trust was not represented by a legally appointed Secretary. The meeting in which Ram Niwas Mundra had been elected was an invalid meeting. No evidence has been given to establish that Ram Niwas Mundra was elected as Secretary of Maheshwari Kunj Trust, the plaintiff No. 1 was not properly represented. It was further contended that Kishan Lal Tapadia could not maintain the suit as the then Secretary of the Trust Ghashiram Tapadia and the alleged elected Secretary Ram Niwas Mundra could not have executed Power of Attorney giving him right to sue in view of Trust deed of Maheshwari Kunj Trust. Under the trust deed dated 31.12.1988, any suit or proceeding before a Court of law could have been instituted or contested only by the Secretary himself. The elected Secretary of the Trust was not empowered to delegate his power to any other person. These objections taken by the defendants of Original Suit No. 494 of 1992 were rejected and it was held that there was no dispute of Ghashi Ram Tapadia being elected as the Secretary of registered Maheshwari Kunj Nys Trust. After his death, in a meeting of the trustees held on 8.8.2005, Ram Niwas Mundra was elected. There was no challenge to the validity of the meeting dated 8.8.2005 of the General body of the Trust. Maheshwari Kunj Trust being a legal entity and Ram Niwas Mundra being the Secretary of the trust had right to represent it, the suit could not be said to have been abated on account of death of Ghashiram. So far as the Kishan Lal Tapadia is concerned, it was held that then Secretary Sri Ghasi Ram Tapadia and the new Secretary Ram Niwas Mundra both had executed power of attorneys in favour of Kishan Lal Tapadia. The trust deed indicates that not only the Secretary himself but a person authorized by him could institute or contest the suit behalf of the trust. The power to sue could have been delegated by the Secretary under the trust deed. The registered trust being legal entity, Ram Niwas Mundra being elected Secretary and Kishan Lal Tapadia being Power of Attorney Holder of the Secretary of the trust had a right to maintain and pursue the suit.
13. On merits of the cases of the parties, it was held by the trial court on the basis of documentary and oral evidences that the suit property was not the ancestral property of the plaintiffs of Original Suit No. 71 of 1992 and they could not be said to be owners thereof. Rather the property in dispute was a Dharmshala of Seth Tulsi Ram. The lease deed dated 14.09.2010 executed by Singh Paur Ji Hanuman and the deed dated 04.05.1991 were genuine documents. The plaintiffs of Original Suit No. 71 of 1991 could not prove the leases of 1860 and 1890 in the favour of their ancestors and those were forged and fabricated documents prepared for the purpose of the suit. However, on the question of possession, trial court held that since the plaintiffs of Original Suit No. 71 of 1992 were in possession of the suit property and no relief of possession had been sought by the plaintiffs, the suit property could not be handed over to the respondent trust and as such the suit No. 494 of 1992 was held to be barred by section 38 and 41 of the Specific Relief Act. It was held that the plaintiffs of Original Suit No. 71 of 1992 could not be dispossessed except by taking recourse of the process of law. The trial court, thus, decreed Original suit No. 71 of 1992, partly and dismissed Original suit No. 494 of 1992 being barred by Section 38 and 41 of the Specific Relief Act.
14. Before coming on the merits of the rival claims in this appeal, the brief narration of pleadings and evidences led by the parties before the trial court is necessary.
Pleadings of Original Suit No. 71 of 1992:-
15. In original suit No. 71 of 1992, the number of the suit property given at the foot of the plaint was House No. 105 to 105(17), Nagar Palika, Vrindaban and the boundaries were given with reference to the plaint map. The plaintiffs of Original Suit No. 71 of 1992 pleaded that the suit property was their ancestral property and they were in possession thereof as owners/title holders. It was also urged that the suit property was in two parts namely 'Badi Chowk' (Bada Bhag) and 'Choti Chowk' (Chota Bhag) and there existed ten shops in the portion of the suit property which was known as "Bada Chowk", which were let out to different tenants. It was further pleaded that the defendants had no relation with the suit property, they were neither owner nor in possession thereof. Being influential persons, they threatened to dispossess the plaintiffs from the suit property and as such the necessity of filing the suit arose.
16. In Original Suit No. 71 of 1992, written statement was filed by the defendant No. 3 namely Kishan Lal Tapadia, disputing the plaint averments regarding nature of the suit property being ancestral property of the plaintiffs. It was alleged that names of the ancestors of the plaintiffs were entered in the municipal records as agents and not as owners. In the municipal records of the year 1943, the suit property was recorded as 'Dharmshala'. The plaintiffs have never been in possession of the suit property as owners rather their possession was only that of the agents having been entered into the suit property by the actual owners namely Seth Tulsi Ram son of Raghunath Das. The case pleaded in the written statement was that the suit property was a Dharmshala constructed by Seth Tulsi Ram on a piece of land taken on permanent lease from Thakur Hanuman Ji Maharaj Singhpaur, Vrindawan. It was pleaded that the shops existing in the suit property were constructed by Seth Tulsi Ram with a view to maintain the Dharmshala.
17. After death of Seth Tulsi Ram, his sons namely Kishan Lal and Girdhari Lal became owners of the property. Out of two sons of Seth Tulsi Ram, Kishan Lal died issueless while Girdhari Lal was survived by his two sons namely Sriniwas Boob and Ram Niwas Boob. Sriniwas Boob was survived by his son namely Venu Gopal Boob. After death of Seth Tulsi Ram, the land-lease receipts were issued in the name of late Kishan Lal and late Girdhari Lal and are still being issued with the same name. It was pleaded that Dharmshala was being looked after by one Badri Prasad as manager deputed by Seth Tulsi Ram and, thereafter, by late Jamuna Prasad. After death of Jamuna Prasad, his wife Smt. Badami Devi was given charge of Dharmshala for management. Smt. Badami Devi started letting out Dharmshala to different tenants and as such she was removed from managership and father of the plaintiff namely late Sri Ganga Prasad Dubey was entrusted as the manager of the Dharmshala and was given charge of the goods of the Dharmshala on 15.8.1950. Sri Ganga Prasad Dubey managed Dharamashala as manager and remained in that capacity till his life time. He never incurred any expenditure for maintenance of the Dharmshala which was being maintained out of the income from the rent of the shops therein.
18. Around the year 1984, the plaintiffs were instructed to get the name of owner of Dharmshala entered in the Municipal record but they did not pay any heed to the said directions. They were removed from the managership of the Dharmshala vide registered deed dated 04.05.1991 and management of Dharmshala was, thereafter, handed over to the Registered trust Maheswari Kunj Nyas, Vrindaban (herein after referred as to Maheswari Kunj Nyas). It was contended by defendant No. 3 that he was Power of Attorney Holder of President/Secretary of Maheswari Kunj Nyas and had been authorized to manage the affair of Dharmshala. It was further contended that the relatives of the plaintiffs namely Radha Sharan Dubey and Shiv Sharan Dubey were posted in Nagar Palika, Vrindawan and by misusing of their authority of office, the changes had been made in the entries in the municipal records and in place of Sri Niwas Boob and Sri Ram Niwas Boob, the names of plaintiffs as owners were entered on 10.1.1991 in the municipal records. Resultantly, a Municipal Appeal No. 26 of 1991 was filed by the defendants which was pending. Merely on the basis of entries in the records of Nagar Palika, the plaintiffs could not claim any right to the suit property. The actual owner of the suit property were defendants and no injunction could be granted in favour of the plaintiffs for this reason.
19. It was lastly pleaded that Maheswari Kunj Nyas was a necessary party in the suit and the suit was bad for non-joinder of the necessary party. Defendant Nos. 1 and 2 were wrongly impleaded in the suit for injunction and, therefore, the suit was bad for mis-joinder of necessary party.
20. The plaint of Original Suit No. 71 of 1991 was, thereafter, amended and it was added therein that the part of the suit property namely "Badi Chok" was taken in the year 1860 on lease of Rs. 01/- from Thakur Govind Ji Maharaj of Vrindavan and the remaining portion namely "Chhoti Chowk" was taken on lease at the rate of Rs. 02/- in the year 1890 from Thakur Govind Ji Maharaj of Vrindaban by the ancestors of the plaintiffs. The ancestors of the plaintiffs, thereafter, made constructions on the land over which the suit property exist. The plaintiffs and their ancestors had continuously been paying lease rent to Thakur Govind Ji Maharaj.
21. To the amended plaint of original suit No. 71 of 1992, the defendants filed an additional written statement on 01.02.1994, it was reiterated therein that the land on which the suit property existed was taken on lease by Seth Tulsi Ram for construction of Dharmshala which was known as "Roll-wali-Dharmshala" and the plaintiffs were in possession of the suit property as agent of late Seth Tulsi Ram. In additional plea of the additional W.S., it was pleaded that the suit property has wrongly been described in two parts namely "Bada Bhag" and "Chhota Bhag". There was no separate way to the back portion of the suit property. The back portion of suit property was part and parcel of the front portion. The shops existing in the suit property were constructed by Seth Tulsi Ram. It was further contended that the land lease receipts were forged document and had been prepared for the purpose of the suit and no benefit could be derived by the plaintiffs from the same.
22. Registered trust Maheswari Kunj Nyas after their impleadment in Original Suit No. 71 of 1992, instead of filing separate written statement, moved an application (paper No. 641-Ga dated 21.02.2003) and adopted the written statements filed by other defendants in the suit. The said application was accepted by the trial Court. By another amendment application Paper No. 608-Ka dated 02.03.2002, the plaintiffs got the Original Suit No. 71 of 1992 amended and added their pedigree. The said amendment application was allowed and the amendments were incorporated. An additional written statement was filed on 22.11.2002 denying the correctness of the pedigree and raising dispute regarding the heirs who allegedly inherited the alleged ancestral property.
Pleadings of Original Suit No. 494 of 1992
23. The original suit No. 494 of 1992, the description and boundaries of the suit property was given at the foot of the plaint. The stand taken by the trust Maheswari Kunj Nyas in the written statement of Original Suit No. 71 of 1992 and the plaint of Original Suit No. 494 of 1992 were one and the same. It was added that "Dharmsala" was constructed prior to creation of Nagar Palika, Vrindaban. As Seth Tulsi Ram was resident of Jodhpur (Rajasthan), he had initially appointed his Power of Attorney Holder Sri Ishwar Das to manage the affairs of Dharmshala. The defendant No. 1 and 2 in the written statement denying the plaint allegations, in defence, repeated the same assertion as had been made in the amended plaint in Original Suit No. 71 of 1992. The right of the trust Maheswari Kunj Nyas to file the suit for injunction was questioned on the ground that Thakur Singh Paurji Hanuman had no right in the suit property and, therefore, giving the property on lease to Tulsi Ram was out of the question. Seth Tulsi Ram had no right or title in the suit land and, therefore, there was no question of "Dharmshala" being constructed by him for the pilgrims. No permission had been taken by Seth Tulsi Ram to construct Dharmshala. The heirs of Seth Tulsi Ram, therefore, had no right in the suit property. It was denied that Jamuna Prasad looked after the property in the capacity of manager. The suit property was wrongly described as "Roll-wali Dharmshala". The plaintiffs of Original Suit No. 71 of 1992 were in continuous possession of the suit property. Name of Seth Tulsi Ram had never been entered in the municipal records. Registered trust Maheshwari Kunj Nyas not being a legal entity had no right to sue. The documents filed by the plaintiffs to establish their right in the suit property did not even indicate that the same property was taken on rent. The suit property even from the case of the plaintiffs of Original Suit No. 494 of 1992 originally belonged to Thakur Govind Ji Maharaj. It was not established from the record specifically the documents filed by the plaintiffs that it was given on lease to Singh Paurji Hanumanji.
24. It was lastly submitted that the names of defendants Radha Saran Dubey and Shiv Saran Dubey were continuing in the municipal record. The plaintiffs of Original Suit No. 494 of 1992 in order to grab the suit property pleaded that it was "Roll-wali Dharmshala". An additional written statement dated 13.07.2006 (paper No. 125-Ka) was filed to state that the Original Suit No. 494 of 1992 was incompetent in absence of resolution of the trust to file the same. The resolution dated 08.08.2005 was a forged document. As per the said document, Sri Ghasiram Tapadia could not be said to have been elected as president and Ram Niwas Mundra as Secretary. Replication paper No. 44-Ka dated 26.04.1994 was filed by the plaintiffs reiterating therein that the suit property existed over the land leased out to Singh Paurji Hanumanji by Thakur Govind Ji Maharaj. The alleged lease in favour of Chimman Lal and Jaharmal (ancestors of the plaintiffs of Original Suit No. 71 of 1992) was also challenged on the ground that the said documents were forged documents. During pendency of the suit, on the death of Sri Ghasiram Tapadia, Ram Niwas Mundra was substituted as Secretary of the registered trust Maheswari Kunj Nyas by way of amendment. In the additional written statement, (paper No. 125-ka dated 13.07.2006) it was stated that Ram Niwas Mundra, Kishanlal Tapadia and Ghasiram Tapadia had no right to represent the registered trust Maheswari Kunj Nyas nor Ghasiram Tapadia had any right to execute a Power of Attorney in favour of Kishan Lal Tapadia.
(Evidences oral and documentary)
Oral evidence
25. "On behalf of the appellants, four witnesses were examined namely Radha Sharan Dubey PW-1; Anuj Kumar Goswami as PW-2; Har Govind Das alias Hira Lal as PW-3 and Khoki Ram as PW-4. On behalf of the respondents, three witnesses were examined namely Kishan Lal Tapadia as DW-1; Om Prakash as DW-2 and Ram Niwas Boob as DW-3. The evidence of Ram Niwas Boob DW-3 could not be completed as he did not appear for cross examination after 06.08.2005 inspite of several opportunities given by the learned Trial Court, as such the evidence of DW-3 could not be read in favour of the respondents.
Documentary Evidence
26. Voluminous documentary evidences have been filed by both the parties. Some of the documents were made part of the paper book whereas the remaining have been kept in three sealed boxes.
27. It may be noted here that the plaintiff of Original Suit No. 71 of 1992 are being referred as "the appellants" and the plaintiffs of Original Suit No. 494 of 1992 are being referred as "the respondents" hereinafter.
28. On the pleadings and evidence of the parties and the arguments raised by the learned counsel for the parties, the following points of determination are framed in the present appeal:-
"1. Whether the Original Suit No. 494 of 1992 is maintainable on the grounds that:-
(a) from the pleadings of the respondents, nature and character of the alleged Dharmshala appears to be a public trust property?
(b) other objections regarding maintainability of the said suit.
2. Whether Original Suit No. 494 of 1992 can be rejected under Order VII Rule 11 of Civil Procedure Code?
3. Whether deposition of Kishan Lal Tapadia DW-1 is liable to be thrown being Power of Attorney Holder in view of the provisions of Order III Rules 1 & 2 of Civil Procedure Code and adverse inference be drawn against the respondents?
4. Whether the suit property is ancestral property of the appellants namely plaintiffs of Original Suit No. 71 of 1992?
5. Whether the suit property is a Dharmshala known as "Roll-Wali-Dharmshala" constructed on the land leased out to Seth Tulsi Ram by Thakur Singh Paur Hanuman Ji who was original lessee of Thakur Govind Dev Ji Maharaj?
6. The nature of possession and occupation of appellants over the suit property and whether they are entitled to retain the same?
7. Whether the Original Suit No. 494 of 1992 is barred by the provisions of Sections 34, 38 and 41 of the Specific Relief Act.?
8. The Relief, if any ?"
Points for determination:-
Point No. 1:- (a) Maintainability of Original Suit No. 494 of 1992 on the Nature and Character of the suit property regarding alleged Dharmshala being a public trust property:-
29. Sri K.M. Garg, learned counsel for the appellants vehemently argued that from the own pleadings of the respondents, it is necessary to ascertain the nature and character of the suit property as alleged in Original Suit No. 494 of 1992 for adjudication of the case.
30. Submission is that there is no dispute about the fact that the land originally belonged to Thakur Govind Ji Maharaj. The appellants are claiming their rights through their ancestors who were lessees of the land on which the suit property had been constructed.
31. Whereas, as per the pleadings in the plaint of Original Suit No. 494 of 1992, it is noteworthy that Dharmshala was constructed by Seth Tulsi Ram for the benefit of the devotees belonging to his own caste i.e. the beneficiaries who constitute a body which is incapable of ascertainment. Thus, the nature of the body created by Seth Tulsi Ram, as per own averment of the respondents in the plaint, is a public charitable trust. Therefore, even if, it is accepted for the sake of arguments that the suit property is a Dharmshala, the respondents have no right to sue as they have not taken any permission from the competent civil court.
32. Reference has been made to the pleadings in paragraph Nos. '6', '7', '8', '9', '10' and '11' of the plaint of Original Suit No. 494 of 1992 (Paper Book No. '6' from pages 3 to 4).
33. Special emphasis has been given to word "Sankalp" and "Dharmik Aupcharikta" as contained in paragraph '8' of the plaint.
34. Reference is also made to the pleadings in the written statement filed by the respondents in Original Suit No. 71 of 1992 (of the appellants) in paragraph Nos. '10' and '11' which are as under:- (Paper Book No. -5 at page 4)
35. Emphasis has also been given to words "Sarvjanik Proyog Hetu" in paragraph '11' of the written statement as quoted above.
36. With reference to these pleadings, it is vehemently urged that Seth Tulsi Ram after construction of Dharmshala dedicated the same for public religious purposes after completing the religious formalities. As per own case of the respondents, Dharmshala constructed by Seth Tulsi Ram is being used by the devotees who use to come to Mathura, Vrindavan for religious purposes.
37. It is contended that as per definition of "trust" under Section 3 of the Indian Trust Act, the trust is an obligation annexed to the ownership of the property by a declaration and acceptance by the owner whether for the benefit of another or of the owner. The persons in whose favour the confidence is accepted are called the beneficiaries. The person who reposes or declares the confidence is called the "author of the trust". The subject matter of the trust i.e. the property with regard to which such confidence is reposed in the beneficiaries is called the "trust property" or the "beneficial interest" or "interest" of the beneficiaries against the owner of the trust. The instrument by which the trust is created or declared is called the "instrument of trust";
38. With reference to the above referred meaning of 'trust', it is submitted that as a confidence had been reposed and accepted by owner namely Tulsi Ram and the said declaration was accepted by the beneficiaries i.e. the persons of his own caste belonging to Rajasthan i.e. beneficiaries, it can be concluded from the pleadings itself that a trust was created by Tulsi Ram and he had given up his right, if any, in the suit property by "Samarpan" for public purposes. He can at the best be termed as founder trustee of the trust, thereafter.
39. Reference is made to Sri Ram Kishan Mission, Bailoor Math Hawrah and another v. Dogar Singh and others reported in MANU/UP/0160/1984 : AIR 1984 All 72; Deoki Nandan v. Murlidhar and others reported in MANU/SC/0085/1956 : AIR 1957 SC 133; Mahant Ram Saroop Dasji v. S.P. Sahi, Special Officer-in-charge of Hindu Religious Trusts and others reported in MANU/SC/0175/1959 : AIR 1959 SC 951; State of Bihar v. Charusila Dasi reported in MANU/SC/0176/1959 : AIR 1959 SC 1002; Ahmedabad Rana Caste Association (In all Appeals) v. Commissioner of Income-tax, Gujarat (In all Appeals) reported in MANU/SC/0223/1971 : AIR 1972 SC 273 and Dhaneshwarbuwa Guru Purshottambuwa owner of Shri Vithal Rukhamai Sansthan v. The Charity Commissioner, State of Bombay reported in MANU/SC/0506/1976 : AIR 1976 SC 871.
40. It is further urged that once it is established that the alleged Dharmshala was constructed for the public purpose and is a public charitable trust, the trustees i.e. the heirs of Seth Tulsi Ram could not afterwards renounce its character and they were not competent to execute the deed of transfer dated 4.5.1991 without permission of the Principal Civil Court of competent jurisdiction as per the Indian Trust Act, 1882. In any case, neither any such permission was taken nor the consent of the beneficiaries was taken and as such the transfer deed dated 4.5.1991 is a non-est, void document. The respondents have no right to sue on the basis of a document which is nullity in the eyes of law. Reference is made to Sheikh Abdul Kayum and others v. Mulla Alibhai reported in MANU/SC/0385/1962 : AIR 1963 SC 309.
41. At this juncture, a question was put to Sri K.M. Garg, the learned counsel for the plaintiffs to demonstrate that as to how the First Appellate Court can appreciate this issue when there was no pleading regarding maintainability of the Original Suit No. 494 of 1992, on the ground of the suit property allegedly being Public Charitable Trust, at all.
42. In answer, reference was made to paragraph '32' and '33' of the written statement filed by the appellants in Original Suit No. 494 of 1992 to submit that the question of maintainability of the suit was specifically pleaded.
43. Paragraph Nos. '32' and '33' of the written statement reads as under:-
44. The next question put by the Court that dispute regarding the nature of property being Public Charitable Trust was not raised before the trial court by the appellants and as such no issue on this point was framed. Other party was not having knowledge of this claim and, therefore, no evidence was led by them to rebut this contention. Further there was no pleading even in appeal nor any evidence has been brought on record. In absence of all these factors, how it is possible for the First Appellant Court to take up this issue raised in argument for the first time in appeal. The answer of learned counsel for the appellants is that non-framing of an issue by the trial court, when the parties undertook the trial fully knowing the rival case and led all evidence in support of their contention and in rebuttal of the case of other side, would not be fatal. The question which is being raised in the first appeal though may not be framed as an issue, however, reflected from the pleadings and evidences on record led by the respondents in Original Suit No. 494 of 1992. These documents can be considered by the First Appellate Court even in absence of framing of particular issue by the Trial Court.
45. It is vehemently urged that the question of jurisdiction on the nature of the suit property is a pure question of law and, if involved, can be raised at any point of time and can be decided, if no further investigation on facts is required. Non-framing of issue of the property being public or private charitable trust and whether the suit can be maintained by the trial court would not be fatal. The court before proceeding with the trial has to decide the nature and character of the suit property so as to see whether it has jurisdiction to decide. Reliance is placed on Nedunuri Kameswaramma v. Sampati Subba Rao reported in MANU/SC/0319/1962 : AIR 1963 SC 884 para 6; Sayeda Akhtar v. Abdul Ahad reported in MANU/SC/0498/2003 : AIR 2003 SC 2985 (para 11) and Chief of Army Staff and others v. Daya Shankar Tiwari reported in MANU/UP/0369/2003 : 2003 (4) AWC 2824.
46. It is urged that the First Appellate Court is the court of both fact and law. The first appeal is a valuable right of the parties and they have right to be heard both on the questions of fact and law. The First Appellate Court is, thus, empowered to look to the pleadings of the parties to consider as to whether the original suit No. 494 of 1992 is maintainable at the instance of the respondents.
47. His main thrust of argument is that even if there was no pleading or contest regarding maintainability of the suit, the trial court was under obligation to ascertain the nature of the suit property on the basis of plaint averments to decide whether the suit property was a public charitable trust and to see whether injunction could be granted at the instance of the respondents.
48. He submits that the deed dated 4.5.1991 which is the basis of the Original Suit No. 494 of 1992 being non-est document, the suit would fall on this ground alone. There is no need to proceed further on the merits of the case.
49. Sri Ashish Kumar Singh learned counsel for the respondents, on the other hand, submits that the issue which is being raised in oral arguments by Sri K.M. Garg, learned counsel for the appellants was not even pleaded before the trial court in the written statement filed by the appellants in Original Suit No. 494 of 1992. There was no whisper that the suit property, as per the case of the plaintiff, was a Public Charitable Trust property. The question as to whether after construction of the Dharmshala, its founder created a Public Charitable Trust being a mixed question of law and fact which requires pleading and leading of evidence cannot be taken up in the oral arguments for the first time during the course of hearing of the first appeal. As there was no pleading nor even a suggestion, there was no occasion for the respondents to lead evidence. No evidence is on record. The word "Trust" is not found in any of the documents. There is no requirement in law that the nature of the property which is not pleaded nor in issue should be taken up by the Court suo-moto.
50. Reliance is placed upon the judgment of this Court in Pt. Shyam Lal v. Lakshmi Narain and others reported in MANU/UP/0105/1938 : A.I.R. 1939 Allahabad 269 and the judgment of the Apex Court in National Textile Corporation Limited v. Nareshkumar Badrikumar Jagad and others reported in MANU/SC/1028/2011 : 2011 (12) Supreme Court Cases 695 to submit that the issue which has not been taken before the trial court cannot be pleaded in appeal without seeking amendment to the original pleadings. The pleadings and particulars are necessary to enable the Court to decide the rights of the parties in the trial. The pleadings are of help to the court in narrowing the controversy and to inform the parties concerned to the question in issue so that the parties may adduce admissible evidence on the said issue. The pleadings and issues are necessary to ascertain the real dispute between the parties to narrow the area of conflict and to see where the two sides differ. It is settled proposition that "as a rule, relief not founded on the pleadings should not be granted".
51. Reference is also made to Union of India v. Ibrahim Uddin and another MANU/SC/0561/2012 : 2012 (30) LCD 1635 to submit that a case not specifically pleaded cannot be considered by the Court unless the pleadings in substance contain the necessary averments to make out a particular case and issue has been framed on the point. In absence of pleadings, the Court on its own cannot make out a case to grant or refuse the relief in a trial.
52. So far as the word "Samarpan" used in deed of transfer dated 4.5.1991 Paper No. 63-Ka is concerned, he submits that one word "Samarpan", without there being any other material in support thereof, is not sufficient to conclude that the founder of Dharmshala namely Tulsi Ram had created a Trust or dedicated Dharmshala to the public at large.
53. The contention is that, in fact, the word "Samarpan" has been used without attaching any meaning to it and it is superfluous word and in case the deed Paper No. 63-Ka dated 04.05.1991 and the deed dated 14.09.1910 namely Paper No. 156-Ga are read together, it cannot even be inferred that the founder had created a Trust.
54. Submission is that as there are documents on record to establish that what has been pleaded by the learned counsel for the appellants is misconstruction of the deeds, it cannot even be suggested that Dharmshala claimed is a Public Charitable Trust property.
55. As regards Section 92 CPC, the same applies only in a case where the suit property is a trust property. Even otherwise, the appellants are not having any interest in or trustees of the Dharmshala. The suit under Section 92 CPC can be filed only in case of a public trust property on various grounds mentioned therein so as to protect the trust property.
56. It is further contended that even in the memo of appeal or cross-objection, no ground has been taken by the appellants regarding the suit property being a public charitable trust.
57. The reference to ground Nos. 9 to 13 of the cross-objections by the appellants to submit that plea was raised regarding maintainability of the suit of the respondents, the subject property being a trust property, is incorrect.
58. Reliance is placed upon the judgment of the Apex Court in the case of Kuldip Chand and another v. Advocate General to Government of Himachal Pradesh and others reported in MANU/SC/0128/2003 : 2003 (5) Supreme Court Cases 46 to submit that long user of a property as Dharmshala would not lead to an inference that the dedication of the property by the owner in favour of the public was complete and absolute. The complete control and management of the property was retained by the owners and merely by the fact that members of public were being allowed to use the same, would not be sufficient to conclude that trust/religious endowment was created.
59. With reference to the judgment of this Court in Sri Satnarayan Ji Maharaj Virajman Mandir Sat Narayan Dharamshala and others v. Rajendra Prasad Aggarwal and others reported in MANU/UP/0077/1997 : AIR 1997 Allahabad 413, it is submitted that in absence of material placed before the Court that there had ever been a creation of an endowment for religious or charitable, no inference can be drawn with regard to the nature of the property being a public charitable trust or religious endowment. With reference to case in Commissioner of Endowments & Ors v. Vittal Rao reported in MANU/SC/1003/2004 : (2005) 4 SCC 120, it is submitted that use of the premises as a Dharmshala for a number of years would not lead to an inference that the same belonged to a public charitable trust.
60. Considering the rival submissions of the learned counsel for the parties, it would be relevant to note that the Apex Court in the case of Deoki Nandan v. Murlidhar and others reported in MANU/SC/0085/1956 : AIR 1957 SC 133 made a distinction between a private and public trust. While making such distinction, it was held by the Apex Court that the cardinal point to be seen is whether it was the intention of the founder that specific persons would have the right in the property or the general public or any specific portion thereof.
61. The Court in the case of Kuldip Chand (supra) has laid down the tests as a guideline to determine whether the endowment is of a public or private nature. Reference may be made to paragraph '47' of the judgment in the case of Kuldip Chand (supra).
62. It has been held by the Apex court in the case of Kuldip Chand (supra) that the determination whether an endowment is of public or private nature requires appreciation on the evidence in the facts of each case.
63. Relevant paragraph '47' placed before the Court is as follows:-
"47. This Court laid down the following tests as sufficient guidelines to determine on the facts of each case whether an endowment is of a public or private nature :
(1) Where the origin of the endowment cannot be ascertained, the question whether the user of the temple by members of the public is as of right;
(2) The fact that the control and management vests either in a large body of persons or in the members of the public and the founder does not retain any control over the management. Allied to this may be a circumstance where the evidence shows that there is provision for a scheme to be framed by associating the members of the public at large;
(3) Where, however, a document is available to prove the nature and origin of the endowment and the recitals of the document show that the control and management of the temple is retained with the founder or his descendants, and that extensive properties are dedicated for the purpose of the maintenance of the temple belonging to the founder himself, this will be a conclusive proof to show that the endowment was of a private nature;
(4) Where the evidence shows that the founder of the endowment did not make any stipulation for offerings or contributions to be made by members of the public to the temple, this would be an important intrinsic circumstance to indicate the private nature of the endowment."
64. In the instant case, the plea regarding the maintainability of Original Suit No. 494 of 1992 filed by the respondents on the ground of alleged suit property being a trust property has been taken for the first time during the course of final arguments in appeal before this Court.
65. On a query made from the learned counsel for the appellants as to whether there was a pleading in this regard, reference has been made to cross-objections filed by the appellants in First Appeal No. 448 of 2007 and the pleadings in the plaint of Original Suit No. 494 of 1992.
66. A careful perusal of the pleadings of Original Suit No. 494 of 1992 makes it clear that the case pleaded by the respondents was that Seth Tulsi Ram was a man of religious bend of mind. He had taken the land on lease from Thakur Singpaur ji Hanuman on lease in the year 1910 for construction of Dharmshala with an intention that his family members and members of his caste, who used to come to Mathura Vrindavan for religious purpose, would stay in the said Dharmshala. Though there is an averment in the plaint that after construction of Dharmshala, it was "dedicated" for religious purposes, however, there is no material on record to establish that the "dedication" was to the extent that the founder namely Seth Tulsi Ram had parted away his control and management over the Dharmshala or he remained in control of the said property as a founder trustee. Few words like "dedication" and "religious purposes" used in the plaint without oral or documentary evidence in proof thereof would not be sufficient to conclude that the suit property as per the averment in the plaint of the suit filed by the respondents, is a trust property and the trial court had erred in entertaining the suit or the trial court was under obligation to determine the nature of the suit property before proceeding to entertain the suit filed by the respondents.
67. Even before this Court, no such plea has been taken in the memo of appeal. It is settled principle of law that in absence of the pleadings, the Court is not required to look into the evidence led by the party. The appellants, however, proceed on the assumption that the pleadings of the respondents in Original Suit No. 448 of 2007 are sufficient to hold that the suit property is trust property and their suit for injunction is liable to be thrown as such. Their submission is found to be wholly misconceived.
68. For proving the suit property as a trust property, it was incumbent upon the appellants to aver and lead evidence that a trust was created either by expressed declaration or by any construction or implication and further that the trust created for public purpose was of a charitable or religious nature.
69. In the instant case, there was no occasion before the trial Court to examine this question, hence there is no error.
70. As regards the first appellate court, there cannot be a dispute about the fact that the first appellate court is a court of fact and law both. It can appreciate the pleadings of the parties to frame an issue on the dispute raised before it and record a finding thereon. However, considering the pleadings of the appellants in First Appeal No. 55 of 2008 and the cross-objections in First Appeal No. 448 of 2007, it cannot be said that they are sufficient to hold that there was a dispute regarding the suit property being a trust property in this Appeal. Further pleadings of the respondents in the plaint of Original Suit No. 494 of 1992 and written statement in Original Suit No. 71 of 1992 are not sufficient to conclude that the suit property alleged by them as Dharmshala was the property of a trust created by Seth Tulsi Ram.
71. It is, therefore, held that this Court being the First Appellate Court is not in a position to hold that Seth Tulsi Ram had "dedicated" the Dharmshala for public charitable purpose and was in possession thereof as a founder trustee. The arguments of the learned counsel for the appellants regarding the nature and character of suit property being a public trust property, therefore, are misconceived, unsupported by any material on record worth consideration and are being rejected.
(b) Other objections of the appellants regarding maintainability of the suit:-
72. It is vehemently contended by the learned counsel for the appellants that Maheshwari Kunj Nyas trust and Kishan Lal Tapadia as Power of Attorney of the alleged trust have no right to sue on the basis of deed Paper No. 63-Ka dated 4.5.1991 which itself is without jurisdiction and non-est document. Further Dharmshala being a separate legal entity has not filed suit and in absence of Dharmshala as party to the suit, Maheshwari Kunj Nyas trust and Kishan Lal Tapadia have no right to sue.
73. The submission is that the question before the trial court was not only that Dharmshala was a necessary party but the objections of the appellants were that as no right could be conferred upon Maheshwari Kunj Nyas trust and Kishan Lal Tapadia on the basis of deed Paper No. 63-Ka dated 4.5.1991, the suit filed by them, in absence of Dharmshala being party, therefore, cannot be maintained.
74. It is further submitted that Ram Niwas Boob and Venu Gopal, executors of the said deed claimed themselves to be trustees of the alleged Dharmshala. From the pleading of Original Suit No. 494 of 1992 wherein it is stated that Seth Tulsi Ram became 'Mohatmim' of alleged Dharmshala after "dedication" of the same for religious purposes and further that his two sons namely Kishan Lal & Girdhar Lal also became 'Mohatmim', after death of Seth Tulsi Ram it is more than apparent that Ram Niwas Boob and Venu Gopal did not inherit the alleged Dharmshala as owners. At the most, they became 'Mohatmim' of alleged Dharmshala, management of which, according to them, was earlier handed over to Ishwari Das and Panna Lal.
75. Inconsistent stand had been taken regarding rights of Ram Niwas Boob and Venu Gopal in the alleged Dharmshala. Thus unless Dharmshala was made party, it was not possible for the trial court to decide that the respondents had right to maintain the suit for injunction having interest in the suit property. As per the pleadings, Ram Niwas Boob and Venu Gopal could not be said to be owners or beneficiaries of the suit property and in any case, they had no right to execute the alleged deed dated 4.5.1991, consequently, no rights could have been transferred to the respondents and they could not maintain the suit for injunction.
76. It is further submitted that Ghasiram Tapadia, the alleged Secretary of Maheshwari Kunj Nyas trust could not have authorised Kishan Lal Tapadia his alleged Power of Attorney to institute suit on behalf of the Maheshwari Kunj Nyas trust. Under the trust deed dated 31.12.1988 Paper No. 394-Ga, the duties of the Secretary has been defined under "Clause 4-" which clearly states that the Secretary was authorized to institute suit or file written statement or present any document in the Court proceeding with his signature and to engage a counsel as and when requires. However, all these work could only be executed by the Secretary and would further require the consent of the President of the trust. "Clause provides power of the Secretary for transaction of Current Accounts of the trust and for that purpose, if required, he may authorize to any other person. No such power of the Secretary exists under the "Clauses and " of the trust deed regarding the court proceeding. The Power of Attorney of the trust namely Kishan Lal Tapadia had no right to institute the suit with his signatures as one of the plaintiffs. Further Ghasiram Tapadia the Secretary had not been entrusted with any power by the trust deed to sub-delegate his powers to Kishan Lal Tapadia or anybody else.
77. Contention is that only Ghasiram Tapadia the Secretary could exercise delegated powers of the trust on his own to institute the suit or contest the Court proceeding but the said power could not be sub-delegated in absence of any specific provision in the trust deed.
78. The trial court has misinterpreted the clauses of the trust deed in arriving at a conclusion that Kishan Lal Tapadia had right to sue as Power of Attorney of the Secretary of the trust.
79. In rebuttal, learned counsel for the respondents submits that as per the plaint averment of Original Suit No. 494 of 1992, it is clear that Maheshwari Kunj Nyas trust has not claimed ownership in the suit property rather the claim is of the right of management of the Dharmshala which was handed over to Maheshwari Kunj Nyas trust vide registered deed dated 4.5.1991, executed by Ram Niwas Boob and Venu Gopal, the owners of the Dharmshala.
80. So far as the execution of registered deed dated 4.5.1991 is concerned, the contention of learned counsel for the appellants that no rights could have been transferred in favour of Maheshwari Kunj Nyas trust by the said deed are misconceived. A registered document by which rights and interest in an immovable property are assigned by the owners of the property being a document covered under Section 17(b) of the Registration Act 1901, cannot be ignored on the plea taken by the appellants. They have failed to establish that Dharmshala was a public charitable trust and was "dedicated" by Seth Tulsi Ram, i.e. the creator, expressly or by necessary implication determining his proprietary rights by conveying the property to Dharmshala as an independent entity. Neither there is any deed on record nor pleadings or evidence are there to prove the creation of the trust or religious endowment. Ram Niwas Boob and Venu Gopal being successors of Seth Tulsi Ram had ownership rights in the suit property. As they had not been able to manage the Dharmshala, therefore, they executed the deed Paper No. 63-Ka dated 4.5.1991 transferring the right to manage the property in favour of the Maheshwari Kunj Nyas trust. In fact, by the said document all rights and interest of the immovable property have been assigned to Maheshwari Kunj Nyas trust with an intention that it will manage the property in the best manner after renovation and reconstruction. The income of Dharmshala is to be used for the purpose of its management by Maheshwari Kunj Nyas trust and further right to represent Dharmshala in any Court proceeding has also been given to Maheshwari Kunj Nyas trust.
81. So far as the authorization by the Secretary of Maheshwari Kunj Nyas trust to Kishan Lal Tapadia is concerned, submission that the arguments of learned counsel for the appellants are based on misreading of the document which is the trust deed Paper No. 394-Ga dated 31.12.1988.
82. With these submissions, it is vehemently argued by the learned counsel for the respondent that the suit No. 494 of 1992 is competent having been filed by a person who has been duly authorized to act as Power of Attorney Holder of the trust having right to sue. It cannot be thrown on the frivolous pleas of the appellants.
83. Having considered the contentions of the learned counsel for the parties and the documents on record, the deed of assignment dated 4.5.1991 Paper No. 63-Ka and the trust deed Paper No. 394-Ga of creation of Maheshwari Kunj Nyas trust dated 31.12.1988, this Court finds that both the abovenoted documents are registered documents having been duly brought on record and, therefore, cannot be ignored. So far as the power to institute suit by the respondents on the basis of deed dated 4.5.1991 is concerned, it has already been held that the appellants have not been able to establish that the Dharmshala constructed by Seth Tulsi Ram was a public charitable trust. The findings, in this regard, have been recorded in the preceding part of this judgment.
84. Having said so and taking into consideration the averments in the deed dated 4.5.1991, it is clear that Ram Niwas Boob and Venu Gopal who succeeded Dharmshala had executed a deed to assign their rights in the suit property with the objective to manage it in the best manner.
85. A careful reading of the deed dated 4.5.1991 shows that Ram Niwas Boob and Venu Gopal who are sole successors of Seth Tulsi Ram stated in the said deed that Dharmshala was constructed approximately 80 years prior to the execution of the document and existed in a bad shape as it has become dilapidated for the reason that they were unable to manage the same. It is also stated that they did not have sufficient means for repairs and renovation of Dharmshala. The property of Maheshwari Kunj Nyas trust exists at south-west boundary of the Dharmshala and the trustees of Maheshwari Kunj Nyas trust agreed to manage the Dharmshala.
86. Keeping in mind these aspects, the right in the suit property was handed over to Maheshwari Kunj Nyas trust so that it may raise construction, use the suit property namely Dharmshala in the best possible manner, get their names recorded in the municipal records in column for manager/agent and pay house tax and water tax. The Maheshwari Kunj Nyas trust has been authorized to use the income/proceeds of the Dharmshala for the purposes of its maintenance and further that Dharmshala will be used for charitable purposes.
87. It is also stated that the Maheshwari Kunj Nyas trust will have a right to institute proceeding in the Court or contest any such proceeding with respect to Dharmshala. The document dated 4.5.1991 is a registered document under Section 17 under the Registration Act 1901. As per Section 17(1)(b) of the Indian Registration Act, 1877, the deed dated 4.5.1991 being a registered document can be looked into as an assignment of rights and interest in the suit property by the owners therein.
88. In view of the above, the document dated 4.5.1991 Paper No. 63-Ka by which the managerial rights in the suit property have been transferred by Ram Niwas Boob and Venu Gopal cannot be ignored at this stage.
89. Now the question as regards the authority of the Secretary of the Maheshwari Kunj Nyas trust to institute the suit on behalf of the trust, it is noteworthy that the learned counsel for the appellants at one stage pleaded that the election of Ghasiram Tapadia as the Secretary of the Maheshwari Kunj Nyas trust was not proved and as such on the basis of Power of Attorney allegedly executed by him in favour of Kishan Lal Tapadia, the suit could not be instituted. However, the argument regarding election of Ghasiram Tapadia as the Secretary of Maheshwari Kunj Nyas trust was not taken further rather dropped at a later stage.
90. However, he vehemently pressed two arguments to challenge the authority of Kishan Lal Tapadia to institute suit with his signature on behalf of Maheshwari Kunj Nyas trust. They are (i) that Ghasiram Tapadia being Secretary of the trust was not authorized to sub-delegate the power conferred upon him under the trust deed by executing a Power of Attorney in favour of Kishan Lal Tapadia; (ii) the execution of Power of Attorney to Kishan Lal Tapadia is not proved in the oral deposition of Kishan Lal Tapadia who was examined as DW-1.
91. Dealing with the first submission of learned counsel for the appellants regarding power of Ghasiram Tapadia to delegate the right to file a suit on behalf of the trust through Power of Attorney, it would be appropriate to go through the trust deed dated 31.12.1988 Paper No. 394-Ga. A careful reading thereof indicates that the duties of the Secretary of the trust have been provided in "Clause-4" of the trust deed. "Clause 4-" further deals with the power of the Secretary to institute or contest suit on behalf of or in relation to the trust. It is seen that the Secretary of the trust has been authorized to file plaint, written statement either by himself or through a person authorized on his behalf. However, only rider as provided therein is that such powers should be exercised with the consent of the President.
92. It is not the case of the appellants that consent of the President had not been obtained before authorization by Ghasiram Tapadia. However, the dispute raised is that the Ghasiram Tapadia was not at all authorized to execute Power of Attorney for the purpose of institution of the suit on behalf of the Maheshwari Kunj Nyas trust. This argument is found to be wholly misconceived upon reading of the language of "Clause 4-" of the trust deed which clearly contemplates otherwise.
93. This apart, the Power of Attorney dated 13.8.1991 Paper No. 174-Ka clearly contemplates that Kishan Lal Tapadia was entitled to institute suit on behalf of the Maheshwari Kunj Nyas trust regarding the property known as "Tulsi Ram Kishan Lal Boob Roll Wali Dharmshala", No. 105-105/17 situated at Govind Dev, Vrindavan which was assigned to Maheshwari Kunj Nyas trust.
94. It is categorically averred in the said deed Paper No. 174-Ka that Ghasiram Tapadia was permanent resident of Jogwani, District Arariya (Bihar) and as such it was not possible for him to discharge all works relating to Court cases and, therefore, he authorized Kishan Lal Tapadia to institute suit or to pursue the Court proceeding on behalf of the Secretary of the Maheshwari Kunj Nyas trust.
95. Submissions of learned counsel for the appellants challenging the authority of Ghasiram Tapadia i.e. the Secretary of the trust to execute Power of Attorney are, therefore, liable to be rejected.
96. So far as the second objection regarding the deposition of Kishan Lal Tapadia regarding the Power of Attorney Paper No. 174-Ga is concerned, in his oral deposition on 15.2.2001, this witness proved the execution of Power of Attorney Paper No. 174-Ga with the statement that for registration of the said Power of Attorney Ghasiram Tapadia went to the office of Registrar, Mathura. This witness also stated that the said Power of Attorney relates to the court cases of "Roll Wali Dharmshala" number of which has been given as '105' and mohalla Govind Ghera has been mentioned in the said deed.
97. With reference to the statement of DW-1 recorded on 14.2.2001, it is vehemently argued by learned counsel for the appellants that the Power of Attorney Paper No. 174-Ka dated 13.8.1991 which is the basis of filing of the Original Suit No. 494 of 1992 according to own statement of DW-1, was not registered on the date of its presentation as one of the executor of the said document namely Mansukh Lal was not present. However, a careful reading of the statement of Kishan Lal Tapadia dated 14.2.2001, (from page '53' to '57' of the paper book No. 3) clearly shows that the statement regarding absence of Mansukh Lal in the Registry office is regarding execution of Paper No. 394-Ga dated 31.12.1988 which is the trust deed.
98. A perusal of the opening paragraphs of the trust deed Paper No. 394-Ga shows that five persons namely Mansukh Lal, Ghasiram Tapadia, Mool Chand Rathi, Radharaman Ji, Shyam Sunder Rathi executed the trust deed through special power of attorneys given in the name of Kishan Lal Tapadia.
99. After perusal of the last page of the trust deed Paper No. 394-Ga, it is clear that the said deed was presented by Kishan Lal Tapadia in the office of the sub-Registrar, Mathura on 5.8.1988 between 3 to 4 P.M. and was read out before the Sub-Registrar and was signed in the presence of witnesses namely Ram Babu Lal Agarwal, Advocate and Sri Kanhaiya Lal Chaudhary. However, the said deed was not registered on 5.8.1988 for the reason that Sri Mansukh Lal one of the trustees was not present. He, however, appeared before the Sub-Registrar on 17.11.1988 and had admitted the execution of the trust deed in the presence of witnesses namely Sri Ram Gopal Gagad and Sri Purshottam Bhawar. The deed was, thereafter, accepted by Sub-Registrar on 17.11.1988 and was entered in the record of the Sub-Registrar Office on 31.12.1988.
100. A careful reading of the statement of Kishan Lal Tapadia dated 14.2.2001 at page '55' of paper book No. 3 clearly proves that five power of attorneys were executed by the creators of the trust in favour of Kishan Lal Tapadia before creation of Maheshwari Kunj Nyas trust. The said statement, thus, relates to the registration of the trust deed for creation of Maheshwari Kunj Nyas trust. It cannot be used to assail the execution of the deed of Power of Attorney Paper No. 174-Ka which has been executed by Ghasiram Tapadia on 13.8.1991, authorizing Kishan Lal Tapadia to institute suit with regard to "Tulsi Ram Kishan Lal Boob Roll Wali Dharmshala", No. 105-105/17, Mohalla Govind Dev Vrindavan.
101. The arguments of the learned counsel for the appellants that the Original Suit No. 494 of 1992 was incompetent having been instituted and signed by an unauthorized person on behalf of Maheshwari Kunj Nyas trust, therefore, are liable to be rejected.
102. In view of the above, it is held that the Original Suit No. 494 of 1992 is perfectly maintainable having been instituted by a Power of Attorney duly authorized to institute the suit on behalf of Maheshwari Kunj Nyas trust to whom rights and interest in the suit property have been assigned by the owners thereof.
Point No. 2:- Re: Rejection of Plaint of Original Suit No. 494 of 1992 under Order VII Rule 11 Civil Procedure Code:-
103. Last submission regarding maintainability of the suit of the Original Suit No. 494 of 1992 is on the ground that Maheshwari Kunj Nyas trust and Kishan Lal Tapadia have no right to sue and the plaint of Original Suit 494 of 1992 was liable to be rejected under Order VII Rule 11 CPC.
104. So far as the rights of Maheshwari Kunj Nyas trust to file the suit on the basis of deed Paper No. 63-Ka dated 4.5.1991 is concerned, it is concluded that the same will be considered while deciding the issue regarding the nature of the suit property as to whether the suit property is Dharmshala and Maheshwari Kunj Nyas trust got the right to manage on the basis of deed dated 4.5.1991. In any case, plaint of Original Suit No. 494 of 1992 cannot be rejected under Order VII Rule 11 CPC on the ground that there was no cause of action for the plaintiffs to file the said suit. The cause of action for filing the suit property in Original Suit No. 494 of 1992 by Maheshwari Kunj Nyas trust arose after execution of the registered deed dated 4.5.1991, the original copy of which has been submitted in evidence and exhibited.
105. The pleadings as contained in the plaint of Original Suit No. 494 of 1992 are clear and categorical, it cannot, therefore, be said that the plaint does not disclose a cause of action.
106. The arguments of the learned counsel for the appellants, therefore, for rejection of the plaint under Order VII Rule 11 CPC are rejected being misconceived.
Point No. 3:-Whether deposition of Power of Attorney Holder namely Kishan Lal Tapadia DW-1 is liable to be ignored in view of provisions of Order III Rules 1 & 2.
107. The next argument of the learned counsel for the appellants is that even if it is accepted without admission that Kishan Lal Tapadia was holding a valid Power of Attorney and could appear on behalf of the trust under the authority given by Ghasi Ram Tapadia, the Secretary of the trust, his evidence cannot be read in view of the provisions of Order III Rules 1 and 2 CPC. The submission is that in view of the said provision, a Power of Attorney cannot depose for the Principal in respect of such acts which are within the personal knowledge of the Principal. With respect to such acts, only the Principal is to be cross-examined. The Power of Attorney Holder cannot depose for the acts done by the Principal and not by him.
108. Reliance is placed upon the judgment in Janki Vashdeo Bhojwani v. Indusind Bank Ltd. reported in MANU/SC/1030/2004 : AIR 2005 SC 439; Man Kaur (Dead) by LRs. v. Hartar Singh Sandha reported in MANU/SC/0789/2010 : 2010 (10) Supreme Court Cases 512 and S. Kesari Hanuman Goud and others v. Anjum Jehan and others reported in MANU/SC/0356/2013 : 2013 (12) Supreme Court Cases 64.
109. Elaborating this submission, the contention is that Sri Kishan Lal Tapadia was appointed Power of Attorney vide deed dated 13.8.1991 Paper No. 174-Ka and, therefore, he could not have knowledge regarding the events/facts relating to the disputed property which occurred prior to the said date. In view thereof, the deposition of Kishan Lal Tapadia as DW-1 in support of the case of the respondents has no evidenciary value and cannot read in evidence.
110. Ghasi Ram Tapadia (the Secretary of the Maheshwari Kunj Nyas trust) did not appear in the witness box. In the pleadings of the respondents either in the written statement of Original Suit No. 494 of 1992 or in the plaint and replication in Original Suit No. 494 of 1992, it is not disclosed as to which acts had been done by Kishan Lal Tapadia, the Power of Attorney Holder in exercise of power granted to him by the instrument. The alleged owners of the disputed property in Original Suit No. 494 of 1992 did not come forward. Sri Ram Niwas Boob one of the executor of the deed dated 4.5.1991 Paper No. 63-Ka though recorded his examination-in-chief but did not appear in the witness-box to cross-examine himself. His oral deposition, therefore, cannot be read in evidence in support of the pleadings in Original Suit No. 494 of 1992, no other witness has been produced by respondents to prove their case and as such an adverse inference is to be drawn against the respondents and further presumption would arise that the case set up by the respondents is incorrect. The Original suit No. 494 of 1992 filed by them is liable to be thrown on this ground alone.
111. Reliance is placed upon the judgment of the Apex Court in the case of Vidhyadhar v. Manikikrao and Another reported in MANU/SC/0172/1999 : AIR 1999 SC 1441.
112. Learned counsel for the respondents on the other hand submits that the question as to whether deposition of Power of Attorney Holder would have evidenciary value cannot be examined at this stage. The suit cannot be thrown only on the ground that no other witness had been produced by the respondents. There is no express bar in the provision of Civil Procedure Code to prohibit the Power of Attorney from deposition. His competence as a witness is to be seen in the light of the provisions of Section 118 of the Indian Evidence Act. The question is whether the statement of Power of Attorney made in his oral deposition is in his personal knowledge. The extent to which he has been able to prove the case of the respondents can be thrashed out from his cross-examining. Kishan Lal Tapadia DW-1 was cross-examined from 25.1.2001 to 17.5.2005 and his cross-examination was concluded only after the orders were passed by the trial court. He was one of the signatory to the trust deed of creation of Maheshwari Kunj Nyas trust. He was duly authorized by the legal heirs of the owners of Dharmshala which was handed over to Maheshwari Kunj Nyas trust for management. Kishan Lal Tapadia remained deeply involved with the affairs of Maheshwari Kunj Nyas trust throughout. The authority to depose has been given to him under the deed of Power of Attorney dated 13.8.1991 Paper No. 174-Ka executed by the Secretary of the trust as also by the Power of Attorney Paper No. 179-Ka dated 04.05.1991 executed by Ram Niwas son of Girdhari Lal and Venu Gopal son of Ram Niwas, the owners of Dharmshala, wherein Kishan Lal Tapadia was authorized to initiate court proceedings.
113. The documentary evidences have been led by the respondents to prove their case and, therefore, there is no question of drawing adverse inference against the respondents. The entire pleadings of the respondents in Original Suit No. 494 of 1992, therefore, cannot be ignored on this ground. The contention of learned counsel for the appellants in this regard are wholly misconceived and are based on misconception of law.
114. Learned counsel for the respondents placed reliance upon the judgment of Bhimappa and others v. Allisab and others reported in MANU/KA/8293/2006 : AIR 2006 Karnataka 231 and Raees Ahmad v. Shri Gopal Prakash and others reported in AIR 2002 NOC 178 (Rajasthan) to submit that Order III Rule 1 CPC does not restrict the Power of Attorney Holder to depose on behalf of the plaintiffs.
115. With reference to judgments in Union of India and another v. Sri Sudarshan Lal Talwar reported in MANU/UP/0386/2002 : 2002 (1) ARC 525 and Atiqur Rehman v. Smt. Shashi Bala Jain reported in MANU/UC/0424/2006 : 2006 (1) ARC 875, he submits that there is no compulsion on a party to appear in witness-box. The evidence of Power of Attorney cannot be refused to be taken into consideration on the ground of non-appearance of the party who can prove his case through evidence of the Power of Attorney.
116. Placing reliance upon the judgments in the case of Vishnu Dutt Sharma v. Daya Sapra (Smt) reported in MANU/SC/1101/2009 : 2009 (13) Supreme Court Cases 729; Roop Kumar v. Mohan Thedani reported in MANU/SC/0276/2003 : AIR 2003 SC 2418; Ramachandran v. Y. Theva Nesom Ammal reported in MANU/TN/0450/2003 : AIR 2003 Madras 262; S. Saktivel (Dead) by LRs. v. M. Venugopal Pillai reported in MANU/SC/0499/2000 : 2001 (19) LCD 639; Krishi Utpadan Mandi Samiti Sahaswan v. Bipin Kumar and others reported in 2004 ACJ 476 (SC); Dhiraj Singh v. Sripal Singh and another reported in 2009 ACJ 2188, it is submitted that the civil cases are decided on balance of probabilities. The best evidence rule requires production of registered document in original. Oral evidences are not permitted to contradict the terms of a deed. A document becomes effective by the fact that it is registered. The subsequent oral arguments contrary to the terms of the written document are not admissible in evidence and a party cannot be permitted to lead such evidence.
117. The question which arises for determination before the Court is as to whether the oral deposition of Kishan Lal Tapadia DW-1 can be ignored only on the ground that he was only Power of Attorney Holder of the plaintiff trust and, therefore, he had no personal knowledge of the facts deposed.
118. Before dealing with this submission in the facts of the case, it would be apt to go through the procedure as provided under Order III Rule 1 and 2 of Civil Procedure Code. A comprehensive reading of the said rules indicates that a person holding Power of Attorney is authorized to appear, apply and act on behalf of such party who has authorized him to do so. The primary object of Order III Rule 1 CPC is to enable a party to perform certain act before the court through his recognized agent or pleader which he would have otherwise required to do in person. The Order III Rule 2 CPC further contemplates that only persons who are authorized by a party can appear or apply in a legal proceeding. The Order III Rule 1 and 2 CPC pertain to the procedure to be adopted in a civil proceeding, however, it does not deal with the right of the parties as to who can appear and depose in the court. Thus it does not deal with the merit of the evidence to be adduced in a civil proceeding as to who may testify or depose. A careful reading of the Order III Rule 1 CPC further shows that it does not deal with the power of the General Power of Attorney to depose or the right of the Principal to authorize his Power of Attorney to depose in his favour.
119. Further there is no prohibition under the Evidence Act for a Power of Attorney to appear and depose on behalf of his principal. The Power of Attorney Holder is a competent witness and is entitled to appear as such. His evidence cannot be refused to be taken into consideration merely on the ground that the parties to the suit i.e. the plaintiff or defendant choose not to appear in the witness-box. Section 118 of the Evidence Act provides the category of persons who are incapable of being witness in a legal proceeding. The Power of Attorney does not fall in any of the said categories.
120. The question as to whether the Power of Attorney has personal knowledge about the matter in controversy is a question to be thrashed out by cross-examining him. Thus by cross-examination of the Power of Attorney it can be seen whether he has personal knowledge about the facts in controversy. The evidentiary value of his deposition may be determined after due consideration of his answer in the cross-examination. However, his deposition cannot be thrown out simply on the ground that the Principal did not appear and the Power of Attorney has no knowledge.
121. The proposition laid down by the Apex Court in the case of Janki Vashdeo Bhojwani (supra) is that the facts which are in exclusive knowledge of the principal and for which he is under obligation to depose, cannot be testified by the deposition of the Power of Attorney. The Power of Attorney cannot be said to have "acted" on behalf of the Principal under Order III Rule 2 CPC for this reason and to this extent. Thus the deposition of Power of Attorney with regard to such "acts" cannot be considered and he can not be cross-examined on those facts. In the abovenoted judgment on the facts of the said case, the Apex Court found that the question as to whether the appellants therein had any independent source of income and had contributed towards the purchase of the property from their own independent income could only be answered by the appellants (therein) themselves and not by their Power of Attorney.
122. The principle underlying the said judgment of Apex Court is based on the rule of evidence under Section 60 of the Indian Evidence Act which contemplates that the oral evidence must be direct. The word 'direct' in the section is used as opposed to mediate or derivative or what can be said to be hearsay evidence i.e. when a person who has seen or heard, a thing reports directly to the court in pursuance of his knowledge by such observation. On the other hand, transmitted second hand or hearsay evidence is something which a witness before the court says that he heard from the third party who has not been called as a witness, the statement of that witness then becomes inadmissible in evidence in proof of the fact so stated. The term 'hearsay' is rather ambiguous and misleading and it has, therefore, been purposely excluded from the Indian Evidence Act. However, what is commonly known as "hearsay" is secondary evidence of any oral statement given orally. The reason for rejection of such evidence are numerous but the cardinal rule is that the best evidence shall always be given. It is in the light of the said principle, the Apex Court found in the above noted case that the Power of Attorney could not depose.
123. Coming to the instant case, Kisan Lal Tapadia the Power of Attorney who appeared As DW-1 to depose for the plaintiffs of Original Suit No. 494 of 1992 was associated with the trust since its inception. This fact is proved from the trust deed dated 31.12.1988 Paper No. 394-Ga itself. There is clear recital in the trust deed that the founder trustees Mansukh Lal, Ghasiram Tapadia, Moolchand Rathi, Shyam Sunder Rathi and Radha Mohan Ji had created trust through their Power of Attorney Kishan Lal Tapadia. He was present in the office of the sub-registrar on 5.8.1988 and had admitted execution of the trust deed. The trustees had executed separate power of attorneys in favour of Kishan Lal Tapadia which were duly registered, before execution of the trust deed.
124. This fact is further proved from the statement of Kishan Lal Tapadia recorded on 14.2.2001 that Power of Attorneys were executed by the trustees before execution and registration of the trust deed in the year 1988.
125. Thus as far as the affairs of the trust are concerned, Kishan Lal Tapadia, the Power of Attorney had power to depose having personal knowledge of the affairs of the trust. His oral deposition cannot be ignored for the fact of being Power of Attorney founder of the trustees.
126. Further the deed of Power of Attorney dated 13.8.1991 Paper No. 174-Ka giving right to sue on behalf of the trust with regard to the disputed property, was executed by Ghasi Ram Tapadia who was the secretary of the trust. The deed of Power of Attorney Paper No. 174-Ka is a registered document and has been duly produced before trial court by Kishan Lal Tapadia who was the best person to present the said document. Under the relevant clauses of the trust deed, the Secretary of the trust was empowered to depute him for the purposes of filing suit on behalf of the trust or to contest the suit filed against the trust i.e. to conduct any court proceeding on behalf of the trust by filing affidavits and engaging counsel.
127. So far as his deposition regarding nature of the suit property and to prove the rights of Maheshwari Kunj Nyas trust to seek injunction are concerned, these issues can only be decided after going through the evidence on record. It would be relevant to note here that Kishan Lal Tapadia was examined from 25.1.2001 to 17.5.2005 on each issue including the execution of deed of Power of Attorney and to the nature of the suit property.
128. His deposition would reflect upon the documents which can only be examined at the time of dealing with the issues on merits and it can be seen as to what extent his statement being Power of Attorney can be considered and relied upon. Merely for the contention of the appellants that none of the family members of Seth Tulsi Ram appeared in the witness-box and Kishan Lal Tapadia DW-1 had no personal knowledge of the suit property, being Power of Attorney, his evidence cannot be thrown. The nature of the suit property is to be decided on the basis of the documentary evidences led by the parties which are the basis of filing the suit for injunction by both the appellants and the respondents.
129. This is not a case where there is no evidence except the statement of Power of Attorney and hence there is no question of drawing adverse inference or any presumption against the respondents namely the plaintiffs of Original Suit No. 494 of 1994.
130. The suit filed by the respondents, therefore, cannot be thrown only on the ground that the owners did not make themselves available for cross-examination. The correctness and validity of a document is to be seen from the reading of the document itself and the circumstances leading to its execution, as a document is the best evidence of the statement of fact as contained therein. The oral evidence can add to only those circumstances which has led to its execution.
131. The Karnataka High Court in Bhimappa (supra) considering the competence of Power of Attorney to appear in the witness-box in a suit for declaration of title to prove the document of title has held in paragraph '15' as follows:-
"15. Therefore, the contention that the evidence on record cannot be taken into consideration to declare the title of the plaintiff has no substance. The suit is one for declaration of title and for possession. In a suit for declaration of title, the plaintiff has to establish his title. Title cannot be established by his personal knowledge. It has to be established by producing documents under which he is claiming title, most of the time under a registered document. Insofar as documents are concerned Section 61 of the Evidence Act mandates that the contents of documents may be proved either by primary or secondary evidence. Primary evidence means the documentary evidence produced for inspection of the Court. Therefore, when a particular fact is to be established by production of documentary evidence there is no scope for leading oral evidence and there is no scope for personal knowledge. What is to be produced is the primary evidence, i.e., document itself. The said evidence can be adduced by the party or by his Power of Attorney Holder. Production of the document, marking of the document is a physical act which does not need any personal knowledge. Even proof of the document is by examining the persons who are well versed with the document or by examining the attesting witnesses or the executant of the document. Again the personal knowledge of the plaintiff has no role to play. In those circumstances it is open to the plaintiff to examine the Power of Attorney Holder, produce the documents through the Power of Attorney Holder, mark the same and examine witnesses to prove the said document if it is denied. Therefore, the contention that the evidence of a Power of Attorney Holder cannot prove the case of the plaintiff in all cases is not correct and that is not the law laid down by the Supreme Court in the aforesaid judgment. In the instant case, the registered sale deed is produced and the same is proved by examining the executant of the said document, and it is on the basis of the said evidence the suit is decreed, which cannot be found fault with."
132. Judgments relied upon by the appellants are, therefore, of no benefit to them.
133. In view of the above discussion, the trial court cannot be said to have erred in proceeding with the Original Suit No. 494 of 1992 to decide the same on merits.
134. It is, thus, concluded that Kishan Lal Tapadia DW-1 the Power of Attorney Holder was a competent witness and was entitled to appear as such, his deposition will be read in evidence on record. The extent to which his deposition would be relevant to prove the case of the respondents will be seen while deciding the points of determination on merits.
Point No. 4:-Whether the suit property is ancestral property of the appellants (plaintiffs of Original Suit No. 71 of 1992):-
135. The case of the appellants/plaintiffs in Original Suit No. 71 of 1992 initially was that the suit property is their ancestral property and they are in possession as owners thereof. By way of amendment, it was added that the lands over which the suit property was constructed were taken on lease by the ancestors of the appellants. Two lease deeds Paper No. 74-Ga (Paper No. 172-Ga) dated 22.3.1860 and Paper No. 77-Ga (Paper No. 171-Ga) dated 15.10.1980 have been filed by the appellants to submit that the two lands were leased by Thakur Govind Dev Ji Maharaj in favour of their ancestors Jaharmal and Chimman Lal; respectively. Over the lease lands, constructions were raised by the ancestors of the appellants. The appellants are permanent lease holders of the lands and lease rent is being paid to Thakur Govind Dev Ji Maharaj by the appellants, regularly. Paper Nos. 171-Ga and 172-Ga are Hindi translation of the said lease deeds. In support of their claim regarding ownership and possession over the suit property, the appellants have filed receipts of "Bhubhada" (land rent) to Thakur Govind Dev Ji Maharaj. The receipts of house tax and water tax, papers of electricity connection, water connection in the name of Ganga Prasad Dubey, electricity bills, telephone bills, ration cards, voter list, death certificate of Smt. Jwala Devi wife of Ganga Prasad Dubey, receipt of license fee in the name of son of appellant No. 1 regarding a shop existing in the suit property, rent deeds executed with the tenants of the suit property, rent receipts in the name of the tenants, register of 'Bhubhara' and 'Chalaan Bahi' of Thakur Govind Dev Ji Maharaj have been filed to prove their case. A list of permanent lease holders of the lands leased by Thakur Govind Dev Ji Maharaj prepared in a Commission held in the year 1936 has been filed to prove that the appellants are permanent lease holders of the lands.
136. It is contended that all these documents have been proved by the appellants from the statement of PW-1 Radha Sharan Dubey and PW-2 Anuj Kumar Goswami son of late Kumar Goswami, Shevait of Govind Dev Ji Maharaj Virajman, Mandir Vrindavan, Mathura.
137. Referring to the lease deeds, submission of learned counsel for the appellants is that the suit property is in two portions known as 'Badi Chowk' and 'Chhoti Chowk' which were constructed on the lands taken on rent in the year 1860 and 1890; respectively. The properties surrounding the lease deed were all properties belonging to Thakur Govind Dev Ji Maharaj which were leased to different persons.
138. Learned counsel for the appellants invited attention of the Court to the plaint map (Page '38' of Paper Book No. 1) to submit the location of the suit property. Referring to the statement of PW-1 Radha Sharan Dubey, learned counsel for the appellants vehemently contends that the boundaries of the suit properties as per the plaint map tally with the boundaries of the lease deeds of the years 1860 and 1890 and have been proved by PW-1 in his statement.
139. It is further contended that PW-2 Anuj Kumar Goswami, who is Shevait (Manager) of Thakur Govind Dev Ji Maharaj, categorically admitted the appellants as lessees of the suit property. He had proved the lease deeds of 1860 and 1890 and also proved the possession of the appellants in the suit property by proving the rent receipts for lease rent to Thakur Govind Dev Ji Maharaj.
140. The specific reference has been made to pages 62, 63, 78, 79, 106 to 108 of the statement of PW-1 (of the Paper Book No. 1). The statement of PW-1 and PW-2 have been read out in extenso by the learned counsel for the appellants during the course of oral arguments.
141. The original lease deeds of 1860 and 1890 (Paper Nos. 74-Ga and 77-Ga) have been kept in a small "Wooden-Box No. 1", seal of which was broken during the course of arguments on the request made by the learned counsel for the appellants and the documents were perused by the Court. The submissions of learned counsel for the parties i.e. the appellants and respondents have been heard on the original copies of the said documents.
142. Disputing the title of the appellants over the suit property, it is contended by learned counsel for the respondents that the lease deeds of 1860 and 1890 are inadmissible in evidence being unregistered, forged documents prepared for the purpose of the suit. They are not in the form of Patta (lease deed). There is no description of boundaries and number of the land leased. In fact these documents are in the nature of receipts and not the lease deeds.
143. With reference to the 1860 deed, it is contended by the learned counsel for the respondents that though at that point of time, the Transfer of Property Act, 1882, was not in existence and there was no requirement of registration of deeds as a mode of conveying the immovable property, however, the dispute is not only with regard to the deeds being unregistered documents rather these deeds being forged document.
144. Referring to the original copies of the lease deeds of 1860 and 1890, the contention of learned counsel for the appellants is that the ink on the said papers has spread on several places which could only be for the reason that writings had been made on old pieces of paper. The appellants have failed to explain as to how the ink has spread on paper Nos. 74-Ga and 77-Ga. The trial court has recorded categorical finding on the issue which could not be assailed by the appellants.
145. With regard to 1890 lease deed, the specific contention of learned counsel for the appellants is that the said lease deed is not admissible in evidence being an unregistered document, no title could have been passed on the appellants on that basis.
146. Referring to the submissions of Anuj Kumar Goswami PW-2, it is contended by the learned counsel for the respondents that this witness has failed to prove that the suit property is in ownership of the appellants. He has accepted that the register belonging to the property of Thakur Govind Dev Ji Maharaj in Vrindavan was not brought in the court.
147. The 1860 deed is alleged to have been issued by Kailash Chandra Manorja, Kamdar of Thakur Govind Dev Ji Maharaj when Shyam Sundar Goswami was Mohatmim Mutwalli of Thakur Govind Dev Ji Maharaj. The authority given by Shyam Sunder to Kailash Chand Manorja to sign the said deed is not on record.
148. In reply thereto, learned counsel for the appellants vehemently submits that the documents of title namely 1860 and 1890 deeds have been proved by Anuj Kumar Goswami PW-2, the representative of Thakur Govind Dev Ji Maharaj, the executor of the documents of lease.
149. So far as 1860 deed is concerned, the contention is that there was no need for registration under the provisions of Section 17 of The Registration Act, 1908, as prior to 1864, no registration was required. The said deed is admissible in evidence.
150. On the question of registration of 1890 deed, it is categorically stated that said deed may not be admitted in evidence as a proof of title of the appellants but has to be read for collateral purposes i.e. for proving the nature of occupation and possession of the appellants over the suit property.
151. With regard to 1890 deed is concerned, it is contended that though the registration was required at that time but even if the lease deed is not registered, the provision of Section 49 of the Registration Act still protects the appellants. According to the said provision, an unregistered document relating to immovable property, which is required to be registered under the Registration Act or the Transfer of Property Act, can be received in evidence of collateral transaction which is not required to be affected by the registered instrument. In other words, the submission is that the unregistered document being admissible in evidence for collateral purposes proved the nature and character of possession of the appellants in the suit property. It is contended that the evidence on record proves that the appellants are in possession of the suit property and the nature of possession of the appellants is that of lessee of Thakur Govind Dev Ji Maharaj, admitted by Thakur Govind Dev Ji Maharaj itself. As such the contentions of learned counsel for the respondent disputing the title of the appellants over the suit property are liable to be rejected.
152. In rejoinder, the respondent's counsel, placing statement of PW-2 at page 180 and 183 of paper book No. 1, contends that the deposition of PW-2 regarding execution of 1860 and 1890 deeds (Paper Nos. 74-Ga and 77-Ga) cannot be believed as the statement is not direct but on the information allegedly given by his father Pradyumna Kumar Goswami who was Shevait of Thakur Govind Dev Ji Maharaj and died in the year 1997. Hearsay evidence in oral deposition of a witness cannot be made basis for proving the alleged documents of title filed by the appellants.
153. The submission of learned counsel for the respondents is that there is clear admission of the appellants in the amendment application No. 297-A, filed before the trial court and the statement-in-chief of PW-1 and cross-examination that Anjan Kumar Goswami was Shevait of Thakur Govind deo Ji and not Anuj Kumar who deposed as PW-2.
154. Having considered the submissions of learned counsel for the parties and perused the evidence on record, the questions arisen for examination by the court to answer the plea of ownership of the appellants regarding the suit property are:-
"(a) Whether 1860 lease deed is a document of proof of title of the appellants as there was no requirement of registration for conveyance of an immovable property at the time of its execution;
(b) Whether 1890 deed being admissible in evidence for collateral purposes as an unregistered document can prove the nature and character of the possession of the appellants as lessees of Thakur Govind Dev Ji Maharaj;
(c) Whether it can be said that the lease deeds 1860 and 1890 are forged documents prepared for the purpose of the suit for injunction filed by the appellants."
155. So far as 1860 lease deed Paper No. 74-Ga (Hindi translation Paper No. 172-Ga) is concerned, a perusal thereof indicates that the said document is in the nature of a receipt which is mentioned as receipt No. 92 entered in Book No. 3 of the Books of lease rent of the properties of Thakur Govind deo Ji. The lease rent is @ Rs. 1/- per annum and the receipt has been issued by Kamdar of Mandir Thakur Govind Dev Ji, Vrindavan on 22nd March, 1860. The document records that Mohatmim Gaddi Nasheen Shevait was Shyam Sunder Goswami and Kamdar who had signed the document was Kailash Chandra Manorja, Bengali Brahman. The original of the said document is written in Bengali. The boundaries are; East-Tila mati, Jameen Thakur Govind Ji, West-Kachcha Rasta, North-Rasta and South- Tila Jameen Thakur Govind Ji.
156. The 1860 deed was issued by Kailash Chandra Manorja Kamdar but there is no evidence on record to prove that Kailash Chandra Manorja was authorised to execute the lease deed on behalf of Thakur Govind Dev Ji Maharaj at the relevant point of time i.e. on 22.3.1860.
157. Referring the authority of Kailash Chand Manorja to execute deed of 1860, learned counsel for the respondents submits that one 1867 deed Paper No. 397-Ga is on record which is a copy of Patta executed by Thakur Govind Dev Ji Maharaj. Before execution of the said deed, Shyam Sunder Goswami had executed a Power of Attorney on 4th December, 1865 in favour of Kailash Chandra Manorja (correctly mentioned as "Kailash Chandra Morja"), Bengali Brahman. He submits that there being no document or Power of Attorney on record to authorise Kailash Chandra Manorja to sign the document of alleged lease, it cannot be said that he was authorised by Shyam Sundar Mohatmim of Thakur Govind deo Ji to execute the lease deed.
158. Contradicting this, learned counsel for the appellants heavily relied upon the statement of PW-2 who stated that Kailash Chandra Manorja, Brahman was Kamdar of Shyam Sundar Goswami Mohatmim Mutwalli of Thakur Govind Dev Ji Maharaj. Sri Anuj Kumar Goswami Shevait of Thakur Govind deo Ji stated that he had inquired from his father about Kailash Chandra Manorja with reference to the leases of the appellants and his father informed that the 1860 deed was executed by Kailash Chandra Manorja and that he died in the year 1862.
159. So far as the contention of the respondents that Kailash Chandra Manorja had no authority to execute 1860 deed as Power of Attorney was given to him on 4.12.1865 by Shyam Sunder Goswami who was admittedly Mohatmim Mutwalli of Thakur Govind deo Ji, it is submitted by learned counsel for the appellants that Kailash Chandra Manorja and Kailash Chandra Morja were two different persons. There is no denial by the respondents that Kailash Chandra Manorja was Kamdar. As Kailash Chandra Manorja died in 1862 as per statement of Anuj Kumar Goswami PW-2, the Power of Attorney dated 4.12.1865 as referred in 1867 deed, cannot be made basis to dispute the execution of the 1860 deed by Kailash Chandra Manorja as Kamdar.
160. These submissions of learned counsel for the appellants cannot be accepted for the reason that statement of PW-2 is not sufficient to establish that Kailash Chandra Manorja was Kamdar of Shyam Sunder Goswami or he had been authorized by Shyam Sunder Goswami to execute the lease deed of 1860. Moreover, the statement of Anuj Kumar Goswami that he was Shevait of Thakur Govind Dev Ji Maharaj is also not worthy of reliance for the reason that PW-1 in his examination-in-chief (at page '63' of Paper Book No. 1) admitted that after death of Pradyumna Kumar Goswami, his elder son Anjan Kumar Goswami became Mohatmim Mutwalli Shevait of Thakur Govind Dev Ji Maharaj. In his cross examination at page 135 of Paper Book No. 1, PW-1 also admitted that the appellants were given right to recover lease rent of the properties of Thakur Govind Dev Ji Maharaj by Anjan Kumar Goswami by a letter dated 6.8.1973 filed as Paper No. 345-Ga.
161. On the question of Shevaitship rights of Anjan Kumar Goswami though it is vehemently contended by the appellants that Shevaitship was inherited by virtue of Section 4 of Hindu Succession Act, 1956 by three sons of Kumar Goswami namely Anjan Kumar Goswami, Anuj Kumar Goswami and Awadesh Kumar Goswami. However, apart from the statement of Anuj Kumar Goswami PW-2, there is no other evidence or document on record to prove that Anuj Kumar Goswami inherited Shevaitship from his father namely Pradyumna Kumar Goswami or he ever exercised any right of him being a Shevait of Thakur Govind deo Ji. This apart there is a clear admission of the appellant (PW-1) in his statement which is sufficient to prove that Shevaitship was succeeded by Anjan Kumar Goswami, the elder son of Kumar Goswami. Anuj Kumar Goswami PW-2 himself admitted that he got all information about the execution of the deed of the appellants from his father. He also admitted that he has not seen any paper of Kailash Chand Manorja and that the fact of Kailash Chand Manorja being Kamdar in 1860 and died in the year 1862 came to his knowledge on the oral information given by his father Pradyumn Kumar Goswami.
162. It is well settled rule of evidence that execution of a document of transfer of title can be proved from the circumstances leading to its execution or by the statements of the persons who witnessed its execution and endorsed their presence on the document i.e. marginal witnesses. The statement of a witness in the witness-box that he was told about the execution of the document without any other material on record would only be a hearsay evidence. It cannot be said to be sufficient to prove its execution. Moreover, Anuj Kumar Goswami PW-2 was not aware of the affairs of the properties of Thakur Govind deo Ji as he was not Shevait. The admission of the appellant is that the Shevaitship was succeeded by Anjan Kumar Goswami, elder son of Pradyumn Kumar Goswami who had authorized the appellants to collect rent on 6.8.1973 is sufficient proof of devolution of Sevaitship. As such Anuj Kumar Goswami PW-2 cannot be said to be at the helm of affairs so as to prove the execution of the document or to depose on behalf of Thakur Govind deo Ji, original lessor of the suit property.
163. The reference of the judgments of the Apex Court in the case of Bhaiya Ramanuj Pratap Deo (In C.A. 209 of 1970) v. Lalu Maheshanuj Pratap Deo reported in MANU/SC/0313/1981 : AIR 1981 Supreme Court 1937 and Rambir Das and another v. Kalyan Das and another reported in MANU/SC/1127/1997 : 1997 (3) AWC 1757 (S.C.); made by the learned counsel for the appellants to submit that Shevaitship rights have been transferred to Anuj Kumar Goswami PW-2, therefore, are of no benefit to the appellants.
164. It is further noteworthy that the number of land which was leased out is not clear in the deed of 1860 as it is turned at the said place. There is no mention of the measurement of the land leased on rent. The writing of ink on the paper has spread at many places which suggests that the document has been written on an old piece of paper so as to give it colour of an old document of the year 1860.
165. The boundaries as mentioned therein only suggests that the surrounding properties were owned by Thakur Govind Dev Ji Maharaj and the same were in the nature of Tila and Rasta. There may be some substance in the contention of learned counsel for the appellants that the property at the relevant point of time was in the shape of 'Tila' such as described in the deed but this statement by itself cannot make the document admissible in evidence in absence of any other circumstances proving its execution. On this plea, therefore, the findings of the trial court regarding 1860 lease deed cannot be found faulted with.
166. There are other circumstances which raise doubt about the execution of deed of 1860. The admission of the appellant PW-1 is that the appellant No. 1 Radha Sharan Dubey being 'Karinda' was collecting rent of all the properties of Thakur Govind Dev Ji Maharaj since the year 1973. As discussed above, the alleged lease deed i.e. Paper No. 74-Ga is a receipt. It does not even contain the terms and conditions of the lease. The contents of the said document do not suggest that a lease was executed in favour of the appellants. Rather it appears that the appellants have prepared this document being in-charge of the affairs of properties of Thakur Govind deo Ji, as collectors of rent (Bhubhara) by using one of the old blank receipt of Bhubhara.
167. From the above discussion, it is concluded that the execution of the document 1860 deed paper No. 74-Ga (Paper No. 172-Ga) is not proved and it has been prepared by the appellants for the purpose of injunction suit.
168. As regards 1890 deed Paper No. 77-Ga (Paper No. 171-Ga), learned counsel for the appellants admitted that being unregistered document, it cannot be treated as a document of passing of title through transfer of the property. He, however, submitted that under Proviso to Section 49 of the Registration Act, an unregistered deed can be received in evidence of any collateral transaction not required to be affected by the registered instrument. The nature and character of possession of the appellants over the suit property being not effected by the transaction of the lease deed stands proved from the oral evidences of PW-1 and PW-2.
169. Reliance is placed upon the judgment of this Court and Apex Court in Bhaiya Ramanuj Pratap Deo (In C.A. 209 of 1970) v. Lalu Maheshanuj Pratap Deo reported in MANU/SC/0313/1981 : AIR 1981 Supreme Court 1937; Mattapalli Chelamayya (dead) by his legal representatives and another v. Mattapalli Venkataratnam (dead) by his legal representatives and another reported in MANU/SC/0001/1972 : AIR 1972 Supreme Court 1121; Ram Shanker v. Mahatma Gandhi Higher Secondary School Jonihan and another reported in MANU/UP/0046/1979 : AIR 1979 Allahabad 184; Sardar Amar Singh and another v. Smt. Surinder Kaur reported in MANU/MP/0042/1975 : AIR 1975 Madhya Pradesh 230 Full Bench and Bondar Singh and others v. Nihal Singh and others reported in MANU/SC/0193/2003 : AIR 2003 Supreme Court 1905.
170. Learned counsel for the respondents on the other hand placing reliance upon the judgment of Apex Court in the case of Yellapu Uma Maheshwari and other v. Budhha Jagadheeshwara Rao & others reported in MANU/SC/1141/2015 : 2015 (3) ARC 536 SC submits that an unregistered document though can be relied upon for collateral purposes but not for the primary purpose i.e. passing of title to the appellants over the suit property. The title as claimed by the appellants is based upon the lease deed of 1890 cannot be said to be collateral purpose not to be effected by the document. The claim of possession of the appellants over the suit property is on the basis of title passed on to them by way of lease deed of 1890, an unregistered document. The lease deed has been produced in evidence not to prove the nature and character of possession but the factum of passing of title to the appellants over the suit property. The basis of filing suit for injunction is not only possession but the title as per own pleadings of the appellants in Original Suit No. 71 of 1992.
171. It is further stated that even for collateral purpose a document is not admissible unless the same is impounded. If the appellants wanted to mark the said document for collateral purposes, it was open for them to pay stamp duty together with penalty and got the document impounded. The trial court was, thereafter, at liberty to mark the documents for collateral purposes subject to proof and relevance thereof. In the instant case, 1890 deed was not impounded nor had been admitted by the trial court for collateral purposes. The evidence of PW-1 and PW-2 was not sufficient to prove the nature of possession of the appellants over the suit property.
172. Reliance is placed upon the judgment of Apex court and this Court in the case of Delhi Motor Co. and others v. U.A. Basrurkar (dead) by his legal representatives and others reported in MANU/SC/0139/1968 : AIR 1968 SC 794; Sunil Kumar Roy v. M/s. Bhowra Kankanee Collieries Ltd. and others reported in MANU/SC/0448/1970 : AIR 1971 SC 751; Budh Ram v. Ralla Ram (Deceased through Legal Representatives reported in MANU/SC/0744/1987 : ARC 1987 (2) SC 461; Ram Swarup Jain v. Sri Janki Devi Bhagat Trust reported in MANU/UP/0100/1974 : AIR 1974 All 424 and Shafique Ahmed v. Additional District Judge (E.C. Act), Dehradun and others reported in MANU/UP/0745/1998 : ARC 1999 (1) ALL 321 to submit that a lease deed which gives tenancy right for more than one year is essentially to be registered under Section 17 of the Registration Act, 1908 and in case of non-registration, it cannot be received in evidence in view of Section 49 of the Registration Act.
173. Before dealing with the rival submissions, it would be apt to go through the expression "collateral purpose" and the legal position in this regard. The meaning of word "collateral" as given in Black's Law Dictionary, Eighth Edition, South Asian Edition is as under:-
"Collateral, adj. 1. Supplementary; accompanying, but secondary and subordinate to 2. Not direct in line, but on a parallel or diverging line of descent;"
174. The literal meaning of the word 'collateral' itself shows that it is only 'supplementary or secondary purpose' and 'not direct'.
175. Section 49 of the Indian Registration Act which reads as under:-
"49. Effect of non-registration of documents required to be registered.-No document required by section 17 [or by any provision of the Transfer of Property Act, 1882 (4 of 1882)], to be registered shall-
(a) affect any immovable property comprised therein, or
(b) confer any power to adopt, or
(c) be received as evidence of any transaction affecting such property or conferring such power,
unless it has been registered:
[Provided that an unregistered document affecting immovable property and required by this Act or the Transfer of Property Act, 1882 (4 of 1882), to be registered may be received as evidence of a contract in a suit for specific performance under Chapter II of the Specific Relief Act, 1877 (3 of 1877), [**] or as evidence of any collateral transaction not required to be effected by registered instrument.]"
176. Section 49 of the Registration Act categorically states that the document which affect any immovable property comprised therein and is required to be registered under Section 17 or any provision of the Transfer of Property Act, 1882, can be received as evidence of any transaction affecting such property. However, the proviso to Section 49 of Indian Registration Act further says that such unregistered document can be received in evidence as a proof of any collateral transaction which is not required to be effected by the registered instrument.
177. There cannot be any doubt that the fact of passing of the title to the lessee of land by an instrument cannot be said to be collateral purpose i.e. supplementary or secondary purpose. Rather it is the main purpose for which the instrument is executed affecting the immovable property comprised in the said instrument. Therefore, as a rule, as a proof of passing of title in favour of any person, no unregistered document can be received in evidence.
178. In the instant case, 1890 deed has been filed in evidence with the specific statement in the plaint that Jaharmal i.e. predecessor-in-interest of the appellants got the land comprised in the suit property, which is termed as 'Badi Chowk', on lease in the year 1890, at the rent of Rs. 2/- per annum, from Thakur Govind Dev Ji Maharaj. The constructions, thereafter, had been raised by their ancestors over the lease land and the appellants are in possession of the same as owners thereof. They are permanent lease holders of the land in dispute. Their possession over the suit property cannot but be said to be that of the owners.
179. In any case, 1890 deed being unregistered document cannot be said to be a document of proof of passing of title of the appellants in the land mentioned as 'Badi Chowk'.
180. However, the question is as to whether it can be admitted in evidence as a proof of nature and character of the possession of the appellants in the suit property.
181. Heavy reliance is placed on Sardar Amar Singh and another v. Smt. Surinder Kaur reported in MANU/MP/0042/1975 : AIR 1975 Madhya Pradesh 230 (FB) by the learned counsel for the appellant. In paragraph '7' of the said judgment, placing reliance upon the judgment in K. Panchapagesa Ayyar and another v. K. Kalyanasundaram Ayyar and others reported in MANU/TN/0210/1957 : AIR 1957 Madras 472, it is held that the expression "collateral purposes" is a very vague one and the court must decide in each case whether the purpose for which unregistered document is sought to be used as really a collateral one or is to establish directly the title to immovable property sought to be conveyed by the document.
182. It is further observed by the Full Bench of Madhya Pradhesh High Court that the collateral purpose is that which is by the sight of the order is distinct from the main purpose. In the said case, the plaintiff filed a suit for ejectment and arrears of rent against the defendant on the basis of an unregistered deed alleging therein that he had purchased the suit property under a registered sale deed from defendant No. 1 and later he became monthly tenant of the suit property on a rent mentioned therein. The defendant on the other hand resisted the suit on the ground that in the money lending transaction which took place between defendant No. 1 and the plaintiff's father-in-law, a bogus sale deed was executed by the defendant No. 1 by way of security for the lenders but the parties never intended to act upon that document. It was further averred that the defendant No. 1 continued to be in possession as owner and the suit property was not let out to him, the lease deed was a bogus document. It was further averred that the lease deed was under-stamped and unregistered and it could not be admitted in evidence. The plaintiff amended the plaint to the effect that an oral lease accompanied by delivery of possession was created at the time of finalization of the sale transaction and the written lease deed was only a memorandum of the oral lease already entered into between the parties. The defendants therein resisted this contention and raised objections to the reliance of evidence to prove oral lease.
183. It is in these facts and circumstances of the case, it was held that though the unregistered lease deed could not be used to prove the terms of the lease i.e. to decide the period of the lease and the rate of rent, however, the relationship of landlord-tenant could be said to be proved and by virtue of Section 106 of Transfer of Property Act, monthly tenancy between the parties could be presumed. It was held that the unregistered document could be admitted in evidence to prove the delivery of possession to the defendants as tenants of the plaintiffs, as the plaintiffs have already pleaded oral tenancy prior to the execution of the lease deed. It was for the plaintiff to lead evidence in support of it and was for the trial Court to decide that point. The question under reference was answered by the Full Bench of M.P. High Court, accordingly, particularly in the facts and circumstances of the said case.
184. In light of the legal position, it may be seen that in the instant case, the contention of the learned counsel for the appellants that the unregistered lease deed can be admitted in evidence to prove the nature and possession of the appellants in the suit property being lessee on the basis of the said case is wholly misplaced. Rather the ratio of the above noted judgment of the Full Bench is that it is for the Court to decide in the facts and circumstances of each case whether the unregistered document is sought to be used for the purpose which can really be termed as collateral one, distinct from the main purpose. The unregistered 1890 deed has been produced and sought to be used by the appellants for the purpose of establishing their title directly to the immovable property as sought to be conveyed by the said document. The said deed, therefore, cannot be accepted in evidence for collateral purpose i.e. as a proof of nature and character of possession of the appellants in the suit property.
185. All other judgments relied upon by the learned counsel for the appellants are of no benefit to the appellants as those decisions are in the peculiar facts and circumstances of those cases. These cases are not relevant to be discussed individually more so not to burden this judgment, unnecessarily.
186. This apart the trial Court has discussed in detail the contents of the 1890 lease deed and has rejected the documents raising doubt about its execution and has termed it as a document prepared for the purpose of the present suit.
187. Challenging these findings recorded by the trial Court, learned counsel for the appellants has vehemently urged that there was no pleading of the respondents (defendant in original suit No. 71 of 1992) regarding fraud or forgery and as such no evidence could have been led for consideration by the trial Court in view of categorical provisions of Order VI Rule 4 of Civil Procedure Code.
188. It is contended that the pleadings are foundation and in case of any alleged misrepresentation or fraud, in all cases, the necessary particulars are required to be pleaded. In absence of the pleadings, the reasoning given by the trial Court for rejection of the document of title is mere assumption and the evidence as discussed by it could not have been accepted under Section 57 of the Indian Evidence Act to examine the document.
189. Having gone through the findings recorded by the trial Court it would be relevant to note that the trial court has examined the documents filed by the plaintiffs/appellants of original suit No. 71 of 1992 which are basis of their claim of title to the suit property. Even if there was no specific pleading regarding the documents being forged or fabricated, in view of the evidence adduced by the parties, before arriving at any conclusion, the trial Court was under obligation to look into the correctness of the documents and decide as to whether they inspire confidence of the court or not. The findings have been recorded by the trial Court on the genuineness of 1860 and 1890 deeds after perusal of the documents and all other evidence on record. The conclusion with regard to the genuineness of 1860 deed has already been made above.
190. In order to appreciate the contention of learned counsel for the appellants, it would be apt to go through the 1890 lease deed Paper No. 77-Ga (Hindi translation 171-Ga) which has been made basis by the appellants as proof of their title to the "Bada Chawk" portion of the suit property.
191. A careful perusal thereof indicates that the said document is written on a proforma which contains information regarding the number of property, the location, the name of lessee, the nature of lease, the period and amount of rent, the year, date and the signature of the person who received rent and scribe of the document in separate columns. The signatures of Kamdar and the authority in which the document has been executed by the persons i.e. the executant are also required to be mentioned in separate columns.
192. A perusal of original deed (kept in small "Wooden Box") showed that ink of writing on the document was scattered at several places. The explanation offered by the appellants that since it was written by a wooden holder using ink taken from the ink-pot, there were chances of spread of the ink at the first touch of the paper with the wooden holder while writing on it.
193. This submission of learned counsel for the appellants cannot be accepted after careful perusal of the original document. The ink of writing on the paper is spread not in a manner as it spreads with the use of excess ink in the wooden holder rather the manner in which the ink is spread, it seems that the writing was made on an old piece of paper. It is known to all that the ink spreads if the paper is old as soon as one starts writing on it. Further the ink on the paper is spread at several places and not at the beginning of the word as suggested by the learned counsel for the appellant. It cannot be said that it spreads by the mere use of excess ink in the wooden holder. Further though the Ishwi year and Samvat year have correctly been recorded in the document but the same do not tally with the fasli year mentioned in the deed. The number of the property as mentioned therein is not proved in evidence. The scribe of the document though stated therein is Gopal Prasad resident of Vrindavan, however, the document is signed by Jai Gopal Mukharjee alleged Kamdar of Thakur Govind Dev Ji Maharaj. There is no proof that Jai Gopal Mukharjee was Kamdar of Thakur Govind Dev Ji Maharaj at the relevant point of time.
194. Further relevant circumstance is that admittedly the appellants have been collecting rent of the lease hold properties of Thakur Govind Dev Ji Maharaj since the year 1973 under a written authority given by Anjan Kumar Goswami, Shevait of Thakur Govind Dev Ji Maharaj. The findings recorded by the trial court regarding the genuineness of 1860 and 1890 deeds, therefore, cannot be said to be based on assumptions and cannot be interfered with.
195. All other evidences i.e. the rent receipts, telephone bills, the register of Bhu-badha, the list of permanent lease holders of the lands of Thakur Govind Dev Ji Maharaj, the plaint of Original Suit No. 1091 of 2002 alleged to have been filed by Thakur Govind Dev Ji Maharaj for declaration in favour of the appellants as lessee of the suit property are not sufficient to prove the title of the appellant. The rent deeds allegedly executed by tenants in favour of appellants, the rent receipts issued in favour of the tenants, receipts of the house tax and water tax of the suit property can only be seen as the documents in support of the two lease deeds of 1860 and 1890. As the appellants have failed to prove the lease deeds of the year 1860 and 1890, on the question of their title, these documents are not required to be discussed in detail as they would not take the case of the appellants any further. Moreover, the trial court having discussed these documents rejected the lease rent receipts filed by the appellants which require no interference and are being affirmed herein.
196. For all the above discussion, it is held that the appellants have failed to prove that they are owners-in-possession of the suit property being their ancestral property. The point of determination on this issue is thus decided against the appellants.
Point No. 5:- Whether the suit property is a Dharmshala known as "Roll Wali Dharmshala" constructed on the land leased out to Seth Tulsi Ram by Thakur Singh Paur Hanuman Ji who was originally lessee of Thakur Govind Dev Ji Maharaj.
197. The plaintiffs of Original Suit No. 494 of 1992 namely the respondents herein came out with the case that the suit property was taken on lease by Seth Tulsi Ram in the year 1910 from Thakur Singh Paur Hanuman Ji Maharaj. At that point of time, there existed two shops in the suit property, "amla masala" (the construction) of which was purchased by Tulsi Ram through his Power of Attorney Ishwar Das vide registered deed Paper No. 31-Ga dated 13.9.1910. After taking the land on lease, Seth Tulsi Ram constructed a Dharmshala after seeking permission from the competent Authority and for the purpose of maintenance of Dharmshala, 16 shops were also constructed by Seth Tulsi Ram. Initially the management was handed over to Ishwar Das and Panna Lal, later on one Jamuna Prasad was handed over management of Dharmshala by Kishan Lal and Girdhari Lal who were sons of Seth Tulsi Ram. Sri Jamuna Prasad used to manage the Dharmshala under the instructions of Kishan Lal and Girdhari Lal. In the year 1943, the management was handed over to Smt. Badami Devi wife of Jamuna Prasad because of his illness. In the year 1950, Sri Ganga Prasad brother of Jamuna Prasad was deputed to manage Dharmshala. He continued to manage till the year 1973 and thereafter, Smt. Jwala Devi wife of Ganga Prasad was looking after Dharmshala till the year 1984.
198. The appellants Nos. 1 and 2 were handed over management of Dharmshala. However, their intention turned dishonest and they started claiming right in the property. As such the owners, vide registered deed dated 4.5.1991 Paper No. 63-Ka handed over management of Dharmshala to the plaintiffs/respondents namely Maheshwari Kunj Trust which is also running a Dharmshala adjacent to the suit property. The appellants refused to carry out the instructions of Office-bearers of plaintiff No. 1 Maheshwari Kunj Trust and, therefore, notice dated 18.7.1991 was given removing them from managership. A notice dated 22.7.1992 was also published in 'Amar Ujala' newspaper in this regard. It is also contended that at the time of execution of the deed dated 4.5.1991, the names of Ram Niwas Boob and Venu Gopal sons of Girdhari Lal and Sri Niwas were duly entered in the municipal records.
199. A relief of permanent injunction has been sought in Original Suit No. 494 of 1992 restraining the respondents/appellants from inferring in the managerial rights of the plaintiffs/respondents over the suit property which is known as Dharmshala "Seth Tulsi Ram Kishan Boob Roll Wali" situated at Mohalla Govind Dev, Vrindavan, District Mathura. Further relief is sought not to realize rent from the tenants of Dharmshala and further not to interfere in the management and renovation of Dharmshala by the respondents and further not to damage the suit property. The boundaries of the suit property given at the foot of the plaint of the aforesaid suit are; (a) East- Gali and, thereafter, house of Kanpur Walon and Nala Nagar Palika, thereafter, land of Rangnath Mandir; (b) West-Road Maheshwari Kunj (c) Road- Nagar Palika which goes towards Gopinath Mandir from Rangnath Mandir (d) South-Gali and, thereafter, Maheshwari Kunj Nyas and open land Thakur Singh Paur Hanuman Ji Maharaj.
200. In replica of Original Suit No. 494 of 1992, it is contended by the respondents that the land under the suit property was given on lease to Thakur Singh Paur Hanuman Ji Maharaj by Thakur Govind Dev Ji Maharaj vide registered sale deed Paper No. 397-Ga executed on 23.3.1867. The documentary evidences filed by the respondents in evidence are:- (i) Certified copy of the registered lease deed dated 23.3.1867 (registered on 1.4.1867), Paper No. 397-Ga (exhibit 172-Ka); (ii) Permanent lease deed, dated 31.8.1910 (registered on 15.9.1910), Paper No. 156-Ga; (3) registered deed namely 'Kabuliyatnama' executed by Seth Tulsi Ram registered on 15.9.1910, Paper No. 157-Ga; (4) registered deed dated 7.1.1914 executed by Kishan Lal son of Seth Tulsi Ram in favour of Thakur Govind Dev Ji Maharaj namely Paper No. 158-Ga.
201. Further reliance has been placed upon the certified copies of the sale deeds namely Paper No. 160-Ga, executed by Phool Chandra on 21.3.1959 in favour of Prahlad Ram Rameshhwar Das by Charity trust Kanpur; Paper No. 161-Ga, executed by Mahant Mathura Das in favour of Gokul Das Rathi dated 19.10.1962; Paper No. 162-Ga, a sale deed executed by Gopal Das Rathi in favour of Ram Kishan Rathi dated 6.1.1965 to submit that existence of "Dharmshala Roll Wali" and land of Thakur Hanuman Maharaj had been admitted in the vicinity of the suit property in those documents.
202. With the support of the above noted documents, the respondents seek to prove that the suit property is, in fact, a Dharmshala which was constructed by Seth Tulsi Ram on a land taken on lease in the year 1910 from Thakur Govind Dev Ji Maharaj who himself was a lessee of Thakur Govind Dev Ji Maharaj.
203. Disputing the nature of the suit property being Dharmshala, learned counsel for the appellants vehemently disputed the admissibility of the lease deed dated 23.3.1867 Paper No. 397-Ga in evidence. First objection taken by learned counsel for the appellants is that only certified copy of the deed of 1867 has been filed by the respondents. As the original deed which is basis of the suit and has been relied upon in the plaint itself has not been produced by the respondents, as such, no presumption, with regard to its execution, can be raised within the meaning of Section 90-A of Indian Evidence Act.
204. So far as the contents of the deeds are concerned, it is urged that a perusal of the said deed indicates that it was executed by one Kailash Chandra Morja, Kamdar, General Power of Attorney Holder of Shyam Sunder Das Ji Maharaj Gaddi Naseen Thakur Govind Dev Ji Maharaj. The said deed is not in the name of Thakur Singh Paur Hanuman Ji Maharaj rather it is in favour of seven persons whose names are; (1) Mahant Sumer Das, Chela Mahant Charan Das, (2) Javadada Das Bhandari, Chela Radhika Das, (3) Gopal Das, Chela Sri Ram, (4) Brij Das, Chela Jamuna Das, (5) Hukam Das, Chela Radhika Das, (6) Prem Das, Chela Surat and (7) Ram Narayan, Chela Sewa Ram. The deed Paper No. 397-Ga further says that lease was granted to the abovenoted seven persons for making constructions for residential purposes at their own cost. They were liable to pay lease rent @ Rs. 5/- per annum to the lessor namely Thakur Govind Dev Ji Maharaj. It is further contended that as per condition in the said deed, the lessees, in case of any mortgage or sale of the constructions raised by them on the lease land, would first alienate it to the lessor Thakur Govind Dev Ji. In case of any denial thereof, they could mortgage or sell the same to any other person with the written consent of the lessor. In case of Gift, it could only be made to the lessor namely Thakur Govind Dev Ji and not to anyone else.
205. It is vehemently contended that in view of recital of the deed Paper No. 397-Ga, it cannot be treated a lease in favour of Thakur Singh Paur Hanuman Ji Maharaj and further the sub-lease granted by Thakur Singh Paur Hanuman Ji Maharaj vide lease dated 31.8.1910 (registered on 15.9.1910) itself is bad. Even if, it is accepted that the land was leased to Thakur Singh Paur Hanuman Ji Maharaj, he had no right to transfer or the sub-lease it to Seth Tulsi Ram.
206. It is further urged that even otherwise, the suit property is relatable to the property mentioned in the lease deed of 1867 as the boundaries given therein do not tally with the land in dispute. The boundaries described at the foot of the plaint and the plaint map of Original Suit No. 71 of 1992 are not disputed by the respondents. The trial court has erred in holding that after more than 100 years, it was not possible to tally the boundaries. It is vehemently urged that different parameters have been adopted by the trial court with regard to the boundaries of lease deed of 1867 relied by the respondents and the lease deeds of 1860 and 1890 relied by the appellants to prove their respective title.
207. So far as other sale deeds Paper Nos. 160-Ga, 161-Ga and 162-Ga relied by the respondents to prove the existence of Roll Wali Dharmshala in Mohalla Govind deo, Vrindavan, it is contended that as per the settled proposition of law, the recital of boundaries in the documents not inter parties are not admissible in evidence under Sections 11, 13, 32 (3) and 32 (7) of the Indian Evidence Act.
208. Reliance is placed upon the judgment of different High Courts in the case of V.A. Amiappa Nainar (died) and others v. N. Annamalai Chettiar (died) and others reported in MANU/TN/0266/1972 : AIR 1972 Madras 154 and Bhuriya v. Mst. Ram Kali reported in MANU/PH/0167/1971 : AIR 1971 Punjab & Haryana 9. It is further contended that the reliance placed upon by the respondents on the judgment of this Court in the case of MANU/UP/0448/1934 : AIR 1935 All 351 (Mt. Katori v. Om Prakash and another) is misplaced and the said judgment is not applicable in the facts and circumstances of the present case.
209. Lastly, it is submitted that the property mentioned in the lease deed of 1867 Paper No. 397-Ga is situated at Mohalla Radha Niwas whereas the suit property is situated in Mohalla Govind Dev and, therefore, any recital to the boundaries will be of no help to the respondents. Objections have also been taken to the lease deed 15.9.1910 (Paper No. 156-Ga) and the deed dated 7.1.1914 (Paper No. 158-Ga) to submit that the construction of Dharmshala by Seth Tulsi Ram over the suit property is not proved from these documents. With reference to the deed dated 7.1.1914, it is stated that in view of the recital in the said deed, Kishan Lal son of Seth Tulsi Ram stated that he would make construction of Dharmshala as per the wishes of Seth Tulsi Ram. It could, therefore, safely be concluded that Tulsi Ram did not construct the Dharmshala as pleaded in the plaint of Original Suit No. 494 of 1992 and the written statement of Original Suit No. 71 of 1992. The respondents have failed to prove their case and the documents on record are contrary to the pleadings regarding existence/construction of Dharmshala. As there does not exist any Dharmshala and, therefore, the execution of the document dated 4.5.1991 Paper No. 63-Ka giving rights to the respondents to manage the same, does not arise at all.
210. In rebuttal thereto, the respondents submitted that the statement in the lease deed dated 23.3.1867 Paper No. 397-Ga clearly reveals that it was executed in favour of seven persons who were Mahants of Akhada of Thakur Singh Paur Hanuman Ji Maharaj. The existence of temple of Thakur Singh Paur Hanuman Ji Maharaj and the open land belonging to him at the South of the suit property is not disputed. The recital in the sale deeds namely Paper No. 160-ka, 161-ga and 162-ga regarding existence of "Roll Wali Dharmshala" and "Maheshwari Kunj Nyas", filed in support of lease deed 23.3.1867, also prove the existence of Dharmshala in Mohalla Govind Deo Ji. Permanent lease deed dated 31.8.1910, 'Kabuliyatnama' of the same date and the registered document dated 7.1.1914 are sufficient documentary evidences to prove that the land was leased out to Seth Tulsi Ram who had raised construction of Dharmshala known as "Seth Tulsi Ram Kishan Lal Boob Roll Wali Dharmshala", popularly known as Roll Wali Dharmshala. The respondents have proved their plaint case with the registered documents, original copies of which were filed. The burden was upon the appellants to prove that their contents were wrong. The appellants have failed to produce any evidence to negate the abovementioned deeds. No documentary evidence has been filed in contravention thereof. The registered deeds cannot be overlooked by the court.
211. Reliance is placed upon the judgment of Apex Court in the case of Pawan Kumar Gupta v. Rochiram Nagdeo reported in MANU/SC/1187/1999 : ALR 1999 (36) SC 185; Smt. Indrajeet Gulati v. Civil Judge (Senior Division), Mohanlal Ganj/Prescribed Authority Lucknow and others reported in MANU/UP/2712/2007 : 2007 (25) LCD 1450; Cement Corpn. of India v. Purya and others reported in MANU/SC/0870/2004 : 2004 (8) SCC 270; Madamanchi Ramappa v. Muthalura Bojjappa reported in MANU/SC/0008/1963 : AIR 1963 SC 1633; Banamali Das v. Rajendra Chandra Mardaraj Harichandan and others reported in MANU/SC/0280/1975 : 1976 (1) SCC 54; State of Haryana v. Ram Singh reported in MANU/SC/0387/2001 : 2001 (44) ALR 719 SC; Abdul Rashid and others v. Anwar Ahmad and others reported in 2000 (2) ARC 668 All; Prem Singh and others v. Birbal and others reported in MANU/SC/8139/2006 : 2007 (25) LCD 332 SC; Ashokan v. Lakshmikutty reported in MANU/SC/0104/2008 : 2008 (26) LCD 272 SC; Smt. Kamla Devi v. XIth Addl. Distt. Judge, Varanasi reported in 2008 (26) LCD 335.
212. With reference to judgments in the case of Mt. Katori v. Om Prakash and another reported in MANU/UP/0448/1934 : AIR 1935 Allahabad 351; Hari Lal v. Amrik Singh and another reported in MANU/UP/0073/1978 : AIR 1978 Allahabad 292 and Tika Ram v. Moti Lal reported in MANU/UP/0119/1929 : AIR 1930 All 299, it is contended that the recital regarding boundaries in the registered sale deeds which are not inter parties are also admissible in evidence under Section 32(3) read with Section 13 of the Indian Evidence Act.
213. Considering the rival submissions, it is relevant to consider the evidences on record filed by the respondents in support of their case.
"(1) The unilateral lease deed Paper No. 156-Ga dated 14.9.1910/15.9.1910 had been executed by Mahant Pushkar Dass Chela Mahant Venu Dass as Mohatmim Mutwalli of Thakur Singh Paur Hanuman Ji Maharaj.
(2) "Kabuliyatnama', the acceptance deed, Paper No. 157-Ga was executed by Tulsi Ram accepting the terms and conditions of the lease deed dated 14.9.1910 registered on 15.9.1910.
Both the deeds Paper Nos. 156-Ga and 157-Ga are unilateral documents executed with regard to one property which were presented in the office of Registrar on 14.9.1910 and were registered on 15.10.1910.
(3) Paper No. 158-Ga/4, "Ikrarnama" dated 7.1.2014, to reiterate the conditions of lease deed Paper No. 156-Ga dated 14.9.1910, was executed by Kishanlal son of Tulsi Ram reiterating that the land leased out would be used for construction of Dharmshala."
214. Apart from these documents, paper Nos. 160-Ga, 161-Ga and 162-Ga have been filed by the respondents in support of their plea that on the land which was given on lease to Seth Tulsi Ram, Dharmshala was constructed and the existence of the said Dharmshala has been narrated in the boundaries of the said deeds, which were executed with regard to the adjoining properties to the suit property.
215. In replication in Original Suit No. 494 of 1992, reliance is placed upon a deed Paper No. 397-Ga dated 23.3.1867 executed in favour of Thakur Singh Paur Hanuman Ji Maharaj by Thakur Govind Dev Ji Maharaj with regard to the land in the suit property. A certified copy of the registered deed dated 23.3.1867 has been filed as Paper No. 397-Ga (Hindi translation of which is Paper No. 168-Ga). Oral evidence of Kishanlal Tapadia (as DW-3) Power of Attorney of Ghasiram Tapadia, the Secretary of Maheshwari Kunj Trust has been recorded.
216. With reference to the abovenoted documentary and oral evidences, it is submitted by the learned counsel for the respondents that the existence of Dharmshala is proved on the land which was leased out to Thakur Singh Paur Hanuman Ji Maharaj by Thakur Govind Dev Ji Maharaj.
217. In order to arrive at a finding on the issue, the documents which are the basis of filing the suit by the respondents namely the deeds of the year 1910 are to be examined first. The first document Paper No. 156-Ga is a registered deed which is a unilateral document executed by Mahant Pushkar Dass Chela Mahant Mohatmim Mutwalli of Thakur Singh Paur Hanuman Ji Maharaj regarding two lands in Mohalla Thakur Singh Paur Hanuman Ji, Vrindavan, which were owned by Thakur Singh Paur Ji Hanuman Maharaj. The said lands have been given on permanent lease to Seth Tulsi Ram son of Raghunath Dass for construction of Dharmshala on the lease rent of Rs. 21/- per annum. The recital in the said deed are that the lease holder and his heirs would be entitled to raise constructions and remain in possession thereof from generation to generation. The second condition of said deed is that the lease rent would be paid to Mohatmim Mutwalli Mandir Thakur Singh Paur Hanuman Ji by the lease holder and his heirs. The third condition is that, in case, of mortgage of the lease land in two 'Arazi', firstly the offer should be given to Bhandar Hanuman Ji and in case of any denial of their part, mortgage could be made with the permission of Thakur Singh Paur Ji. Further condition is that the lands could only be gifted to Bhandar Thakur Rangnath Ji Maharaj Virajman and, in any case, no gift could be made to any other person. Any gift in contravention thereof would be illegal and void.
218. Lastly it is stated that, in case, the annual lease rent is not paid for a period of three years regularly, the Mohatmim Mutwalli of Thakur Singh Paur Hanuman Ji Maharaj would be entitled to recover the lease rent through the court alongwith the cost of litigation.
219. The boundaries of the lands leased out giving measurement thereof and existing properties have been mentioned at the foot of the said document/deed Paper No. 156-Ga. The noticeable feature of the boundaries is existence of land of Thakur Singh Paur Hanuman Ji Maharaj and house of Badari Prasad sub-postmaster (which has been referred by the learned counsel for the appellants as the existing "Kanpur Walon ki Kothi"). With reference to these boundaries, the contention of the respondents is that the existence of "land of Thakur Singh Paur Hanuman Ji Maharaj" and "Kanpur Walon Ki Kothi" on two sides of the suit property is admitted in the plaint map, which is undisputed position of the suit property.
220. The deed paper No. 156-Ga was presented by Mahant Pushkar Dass son of Mahant Keshav Dass Mohatmim Mutwalli of Thakur Singh Paur Hanuman Ji Maharaj in the office of the Sub-Registrar on 14.9.1910 and was registered and entered in the register of the Sub-Registrar on 15.9.1910. It bears signature of Mahant Pushkar Dass i.e. the executant.
221. The second deed Paper No. 157-Ga which is in the nature of "Kabuliyatnama", a unilateral documents executed by Seth Tulsi Ram with reference to the lease lands is also on record. A perusal of the said document indicates that it was executed by Ishwar Dass son of Shiv Prasad, Special Power of Attorney Holder of Tulsi Ram on the basis of registered Power of Attorney. The conditions of the lease of two lands executed by Mahant Pushkar Dass Mohatmim Mutwalli, Thakur Singh Paur Hanuman Ji Maharaj had been accepted by Seth Tulsi Ram and it was mentioned therein that constructions would be raised by Seth Tulsi Ram and his heirs would remain in possession thereof from generation to generation. They would continue to pay lease rent regularly. The said document bears the signature of Ishwar Dass the Power of Attorney of Seth Tulsi Ram and was presented in the office of the Sub-Registrar on 14.9.1910 and was registered on 15.9.1910. It is also noteworthy that both the aforesaid documents were scribed on the same day i.e. 31.8.1910. The boundaries of both these documents do tally with each other.
222. The third document is Paper No. 158-Ga, the declaration deed (Ikrarnama) dated 07.01.1914 executed by Kishanlal son of Tulsi Ram regarding two lease lands existing in Mohalla Singpuri Ghera Govind Dev Ji vide deed dated 14.1.1910 executed in favour of Tulsi Ram by Thakur Singh Paur Hanuman Ji Maharaj. The recitals in the said deed are that Kishanlal accepted the instructions given by Goswami Kishan Chandra Dass Ji Maharaj Mohatmim Mutwalli of Thakur Govind Dev Ji Maharaj that the leased land would be used for construction of Dharmshala only and would remain in possession of the heirs of Tulsi Ram. It was also accepted that the leased property would not be mortgaged or gifted to any other person and, in case, of execution of any such deed, it would be an invalid document. The boundaries of the lease land on which the Dharmshala was to be constructed as mentioned in the said deed, tally with the boundaries of the lease deed dated 14.9.1910 Paper No. 156-Ga. The said deed Paper No. 156-Ga was presented in the office of Sub-Registrar on 7.1.2014 and was registered on the same date. One of the witness of the said deed was Jamuna Prasad.
223. With reference to this witness, it is contended by learned counsel for the respondents that he was same Jamuna Prasad who was the ancestor of the appellants who witnessed the said deed which contains recital regarding construction of Dharmshala on the lease lands. Had there been any dispute with regard to the suit property, Jamuna Prasad would not have signed this document as a witness. This contention of learned counsel for the respondents is not supported by any other material and has been made during the course of oral arguments. The said contention, therefore, would not be relevant and nothing would turn on the same.
224. Further certified copies of three sale deeds of the adjacent properties namely Paper No. 160-Ga, 161-Ga and 162-Ga have been filed to submit that in the boundaries of the said sale deeds, there are recitals of existence of "Roll Wali Dharmshala". The Paper No. 160-Ga (exhibit 22-Ka) is the sale deed dated 21.3.1959, executed in favour of Prahlad Rai Rameshwar Dass charity trust, Kanpur by Phool Chandra son of Lal Shohan Lal wherein it is mentioned that the land on which the said property was constructed was leased by Thakur Singh Paur Ji Maharaj. At the western side of the said property, there exist "Roll Wali Dharmshala". The mohalla in which the said property existed is mentioned in the deed as Mohalla Govind Dev Ji.
225. It is submitted by learned counsel for the respondents that on the said property, "Kothi Kanpur Wali" had been constructed, existence of which has been admitted at the northern side of the suit property in the plaint boundaries and the plaint map filed in Original Suit No. 71 of 1992 by the appellants.
226. The Paper No. 161-Ga and 162-Ga are the sale deeds with reference to one property which was initially sold to Gopal Dass Rathi by Mahant Mathura Dass and Mahant Hari Dass regarding a house in which earlier Thakur Rukmani Raman Ji Maharaj was Virajman. Gokul Das Rathi in turn sold the said property to Maheshwari Kunj Nyas vide deed dated 6.1.1965 namely Paper No. 162-Ga. The said property existed in Mohalla Govind Dev Ji Maharaj, Vrindavan. The eastern boundaries of the said property are described as bounded by "Roll Wali Dharmshala" and open land (Jameen) Hanuman Ji. The boundaries of this property on the western side is mentioned as "Mandir Hanuman Ji" and northern side again "Roll Wali Dharmshala" is mentioned.
227. With reference to these boundaries, it is contended by learned counsel for the respondents that if the said boundaries are tallied with the plaint boundaries and the boundaries of the plaint map, the existence of land of Thakur Singh Paur Ji Maharaj on the western side of the suit property and "Maheshwari Kunj Trust" on the western side and south side of the suit property is admitted. The plaint map further shows that there exists Mandir Singh Paur Ji on the southern side of Maheshwari Kunj Nyas.
228. Having examined the above mentioned deed of 1910 this much is clear that two pieces of lands were leased to Seth Tulsi Ram which were existing in Mohalla Govind Dev Ji for the purpose of construction of Dharmshala by Thakur Singh Paur Hanuman Ji Maharaj. The boundaries of the said property, tally with the admitted boundaries in the plaint map and the plaint boundaries of Original Suit No. 71 of 1992, if considered, with reference to three registered deeds Paper No. 160-Ga, 161-Ga and 162-Ga.
229. The lease deed of 1910 is the basis of suit as disclosed in the plaint of Original Suit No. 494 of 1992. The original registered unilateral deeds have been filed by the respondents which establish that two lands were leased out to Seth Tulsi Ram by Thakur Singh Paur Hanuman Ji Maharaj for the purpose of construction of Dharmshala. Mahant Pushkar Das Mohatmim Mutwalli of Thakur Singh Paur Hanuman Ji Maharaj had executed the lease deed a unilateral document for acceptance whereof another deed was executed by Seth Tulsi Ram. As per the plaint map and the plaint boundaries, the suit property is bounded by the land of Thakur Singh Paur Hanuman Ji Maharaj at least on two sides. Sale deeds for the lands in Paper Nos. 160-Ga, 161-Ga and 162-Ga on which Maheshwari Kunj Nyas and "Kanpur Walon Ki Kothi" exist, also contain recitals regarding the said properties being bounded by "Roll Wali Dharmshala" which existed in Mohalla Govind Dev Ji or Govind Dev Ghera.
230. The contention of the respondents that the sale deeds Paper Nos. 160-Ga, 161-Ga and 162-Ga relate to the properties on which "Kanpur Wali Kothi" and "Maheswari Kunj Nyas" are existing, is also not disputed.
231. No other material has been brought on record to dispute the assertion regarding existence of "Roll Wali Dharmshala" in the sale deeds namely Paper Nos. 160-Ga, 161-Ga and 162-Ga.
232. The appellants have tried to deny the existence of properties of Thakur Singh Paur Ji in Mohalla Govind Ghera with the help of statement of PW-1 that the Temple of Hanuman Ji which is existing in the vicinity is not of Thakur Sing Paur Ji rather it is another Hanuman Ji Mandir. However, they have not been able to prove that there exist any other Temple in any other place in Vrindavan which is known as Thakur Singh Paur Hanuman Ji Temple. The appellants have also failed to prove that "Roll Wali Dharmshala" exists in any other place or Mohalla in Vrindavan. The appellants also took a stand that the lands on which "Kanpur Walo Ki Kothi" and Maheshwari Kunj Nyas exist were originally the lands belonging to Thakur Govind Dev Ji. They were in the shape of "Tila" as mentioned in the boundaries of the lease deeds of 1860 and 1890 filed by the appellants. In other words, their contention is that the lands on which "Kanpur Walo Ki Kothi" and Maheshwari Kunj Nyas exist, were also the lands originally belonging to Thakur Govind Dev Ji but the said assertion has not been proved by producing any evidence.
233. The appellant PW-1 who himself is Karinda of Thakur Govind Dev Ji has admitted in cross-examination that no lease rent was paid to Thakur Govind Dev Ji by "Maheshwari Kunj Nyas" or the owners of "Kanpur Walo Ki Kothi". He was also not aware of the fact as to who was Mahant of alleged Hanuman Ji Temple, which according to him, is adjacent to the suit property.
234. PW-2 Arjun Dev Goswami who appeared to depose regarding the properties of Thakur Govind Dev Ji also expressed ignorance regarding the lease rent being paid by "Maheshwari Kunj Nyas" to Thakur Govind deo Ji. Rather in his cross-examination, he stated that he was not aware of the details of properties mentioned in "Bhu-Bhara register" which was brought by him in the court. He also admitted that there exists Temple of Thakur Singh Paur Hanuman Ji Maharaj near the suit property.
235. Thus from the cumulative reading of the documentary and oral evidences, the existence of "Roll Wali Dharmshala" in Mohalla Govind Ghera or Govind Dev Ji on the lands leased out by Thakur Singh Paur Ji Maharaj in favour of Seth Tulsi Ram is proved.
236. Now the question arises as to whether Thakur Singh Paur Ji Hanuma had any right or interest in the lands on which the suit property exist. This question arises in view of the dispute raised by the appellants regarding the permanent lease deed dated 23.3.1867 (registered on 1.4.1867) Paper No. 397-Ga (exhibit 172-Ka) that the said lease deed was executed in favour of five persons and not in favour of Thakur Singh Paur Hanuman Ji Maharaj. The respondents, on the other hand, filed certified copy of the said lease deed in support of their averments in the replication that the lands on which "Roll Wali Dharmshala" exists were originally belong to Thakur Govind Dev Ji who had executed lease for the lands in the year 1867.
237. The first objection taken by the appellants regarding the said deed is that only certified copy has been filed and the original lease deed has not been produced. The said objection is of not much weight for the reason that the lease deed Paper No. 397-Ga dated 23.3.1867 is a certified copy of the registered document which was duly admitted in evidence and exhibited. Moreover, the said document was not between the parties to the suit and, therefore, in all probability the original copy of the said lease deed could not have been in possession of the respondents.
238. The second objection taken by the respondents regarding the said deed Paper No. 397-Ga is that the recitals in the said deed regarding Kailash Chandra Morja being Kamdar and Power of Attorney Holder of Thakur Govind Dev Ji are contradictory. In the opening paragraph, he has been mentioned as Power of Attorney of Thakur Govind Dev Ji whereas in the end of the deed, it is mentioned that Kailash Chandra Morja was Power of Attorney Holder of Gosai Shyam Sunder Dev Ji. The said assertion is found to be a misreading of the document.
239. A careful reading of the document shows that in the opening paragraph of the said deed, it is clearly written that Kailash Chandra Morja had executed the said deed on behalf of Mandir Thakur Govind Dev Ji Maharaj of which Gosai Shyam Sunder Dev Ji was "Gaddi-nashin" at that point of time. The fact that the Shyam Sunder Dev Ji Maharaj was "Gaddi-nashin" or Mohatmim of Thakur Govind Dev Ji Maharaj is admitted.
240. Third objection taken by learned counsel for the respondents regarding the deed of 1867 is that this deed had been executed in favour of seven persons and the land was leased out for residential purpose. As the deed is not in the name of Thakur Sing Paur Ji Maharaj, the recital contained therein cannot be looked into to conclude that the lands on which suit property exist were leased by Thakur Govind Dev Ji in favour of Thakur Singh Paur Ji Maharaj.
241. He lastly submitted that the trial court had adopted different parameters/standards regarding the deeds/documents filed by the respondents vis-Ã -vis appellants. Regarding the boundaries of 1867 deed Paper No. 397-Ga, the trial court has concluded that these boundaries could not tally with the plaint map and description of boundaries in plaint of Original Suit No. 71 of 1992 as they are 100 years old. Whereas the boundaries of 1860 and 1867 lease deeds filed by the appellants were disbelieved though they do tally with the plaint case. The trial court had illegally observed that there was no evidence to prove the boundaries of 1860 and 1890 deeds and they do not tally with the plaint map.
242. To deal with the contentions of the appellants that the lease deed of 1867 is the name of seven persons and not Thakur Singh Paur Ji, the recital in the said deed are to be examined.
243. A careful reading of the Paper No. 397-Ga, permanent lease deed dated 23.3.1867, makes it clear that three lands belonging to Thakur Govind Dev Ji Maharaj were leased to Thakur Singh Paur Hanuman Ji Maharaj, "Akhara Singhpaur Wala". The recital in the said deed at page '57' of the paper book No. 7 are under:-
244. The said deed further state that seven persons, whose names were mentioned therein as "jami panchans" of "Akhada Singhpaur wala" would pay Rs. 5/- annually as rent to Thakur Govind Dev Ji Maharaj in the following sentence:-
245. Thus the names of these persons written in the said deed would not mean that they were lease holders in their individual capacity but the abovenoted recitals of the deed prove that these persons were representatives of 'Akhara' of Thakur Singh Paur Hanuman Ji Maharaj.
246. So far as the contention of the appellants that the said deed referred to some other property existing in Mohalla Radha Niwas, this Court does not find any force in the said statement for the reason that the words "Mohalla Radha Niwas" are written with reference to Thakur Govind Dev Ji Maharaj owner of the said property who is Virajman, Vrindawan. It is not the case of the appellants that Thakur Govind Dev Ji Maharaj is Virajman not in Mohalla Govind Ghera but somewhere else or specifically in Mohalla Radha Niwas. The emphasis given by learned counsel for the appellants on the said issue, therefore, is of no relevance.
247. This apart, existence of Mandir Thakur Singh Paur Ji and open land of Thakur Singh Paur Ji and the suit property being bounded on the western side by the land and the Mandir of Thakur Sing Paur Ji Maharaj has been admitted by the appellants in the plaint boundaries and the plaint map both and there is no dispute regarding the plaint boundaries and plaint map of Original Suit No. 71 of 1992.
248. The statement of PW-1 that in the plaint map open land of Thakur Singh Paur Hanuman Ji has wrongly been written is not acceptable for the reason that no amendment has been sought by the appellants in the plaint map at any stage of the proceeding. No other document has been filed by the appellants to prove to the contrary.
249. Considering the documentary evidences, recitals in the plaint boundaries and plaint map of Original Suit No. 71 of 1992 as discussed above, in all probabilities, it does appear that three lands belonging to Thakur Govind Dev Ji were leased to Thakur Singh Paur Ji as early as in the year 1867. Out of these three lands, two lands were leased to Seth Tulsi Ram for the purpose of construction of Dharmshala and one land remained vacant which is mentioned in the plaint boundaries and plaint map as open land of Thakur Singh Paur Hanuman Ji Maharaj at the western side of the suit property namely "Chhota Chowk".
250. In the oral arguments of the learned counsel for the appellants and oral deposition of PW-1, there is no dispute that the lands on which the suit property exists originally belonged to Thakur Govind Dev Ji Maharaj. The registered deeds filed by the respondents cannot be ignored on the plea taken by the appellants.
251. There is one more document for which there is no dispute between the parties and the same is municipal assessment record of the year 1943 (Paper No. 9-Ga) which contains recital regarding single storied Dharmshala in the suit property and in which the name of Badami Devi has been entered. The said document has been filed by the appellants/plaintiffs of Original Suit No. 91 of 1992 and has been relied upon in paragraph '2' of the plaint to state that name of Badami Devi as owner was entered in the municipal assessment record of Vrindawan when the suit property was assessed for the first time in the year 1943. Learned counsel for the appellants in his oral argument could not explain as to how the word 'Dharmshala' is recorded in the said document which is the municipal assessment record of year 1943.
252. All these documents together clearly prove that the suit property exists on the lands leased out by Thakur Govind Dev Ji Maharaj to Thakur Singh Paur Hanuman Ji Maharaj, who in turn leased the same to Seth Tulsi Ram, who had constructed a Dharmshala over the said property which is known as "Roll Wali Dharmshala", existing in Mohalla Thakur Govind Dev Ji or Mohalla Govind Ghera.
253. No infirmity is found in the finding arrived by the trial court on the contention of appellants that different standards had been adopted by the trial court regarding the deeds of 1860 and 1890 relied by the appellants and the deed of 1867 submitted by the respondents, for the reason that the boundaries of the deeds of 1860 and 1890 could not be tallied with the boundaries of the plaint map of a suit which has been filed in the year 1992.
254. Further reliance is placed on a document namely Paper No. 31-Ga (exhibit 116-Ka) dated 13.9.1910 by the respondents, which is receipt of deposit of cost of 'amla masala' of the two shops existing on the suit property. The said receipt has been referred by the respondents to submit that 'amla masala' (construction) of two shops existing in the suit property were purchased by Seth Tulsi Ram through his Power of Attorney namely Ishwar Das in the year 1910.
255. Learned counsel for the appellants, however, with reference to the said receipt dated 13.9.1910 submits that Mahant Kishan Dass Chela Mahant Sambhu Dass was Mohatmim Mutwalli of Thakur Singh Paur Hanuman Ji Maharaj as noted in the said receipt, whereas in the deed dated 14.9.1910 Paper No. 156-Ga, Mahant Pushkar Das Chela Mahant Venu Das has been mentioned Mohatmim Mutwalli of Thakur Singh Paur Hanuman Ji Maharaj. There is only one day difference in execution of these two dates. Thus, it is not clear that as to who was the actual Mohatmim of Thakur Singh Paur Hanuman Ji Maharaj in September, 1910. There cannot be two Mohatmim or two Mahant of one Temple. This fact by itself creates a doubt on the validity of the deeds that is of their execution and correctness.
256. This submission of learned counsel for the appellants is fallacy inasmuch as there is an error in the Hindi Translation of the document namely the receipt dated 13.9.1910 Paper No. 31-Ga which is originally in Urdu (exhibit 117-Ka). The attention of the Court is invited to page '31' of the Paper Book No. 5, the photo copy of the original document, which contains signature of Mahant Pushkar Dass whereas in the Hindi translation at page '30' of the said paper book, there is mention of signature of Mahant Kishan Dass. One of the witness in both the documents is Ganga Dass.
257. In view thereof, the submission of learned counsel for the appellants to challenge the validity and correctness of the deed dated 14.9.1910 and receipt dated 13.9.1910 on the abovenoted ground does not appeal to the Court.
258. On the validity of lease deed dated 14.9.1910 Paper No. 156-Ga, it is submitted that the said deed is void document inasmuch as under the lease deed of 1867, power was given to transfer the constructions made by the lessee by way of mortgage or sale only to Thakur Govind Dev Ji Maharaj. Only in a case of denial, the transfer could be made to any other person that too with the written consent of Thakur Govind Dev Ji. The constructions even could not be gifted to anybody else except Thakur Rangnath Ji. Meaning thereby the land under the lease could not be transferred in any manner by way of a sub-lease executed on 14.9.1910 and the constructions made thereon by the lessee could not be transferred by the deed dated 13.9.1910 to Seth Tulsi Ram.
259. It is further contended that the purpose for transfer by the lease deed of 1867 was to raise constructions for residence by seven persons mentioned therein.
260. In rebuttal, it is submitted by the respondents that there was no prohibition in the lease deed of 1867 to transfer the land to any other person. Only prohibition was regarding the construction raised by the lessee. By way of deed Paper No. 156-Ga dated 15.9.1910 only land has been leased and there is no evidence on record that constructions were raised by Thakur Singh Paur Hanuman Ji Maharaj. Only two shops were existing therein, the constructions of which were sold to the Tulsi Ram for which receipt Paper No. 31-Ga/2 dated 31.9.1910 had been issued.
261. Dealing with this submission, relevant is to note that there is nothing on record to indicate that any proceeding whatsoever has been undertaken by Thakur Govind Dev Ji for cancellation of lease deed of 1910.
262. The plea that a deed has been executed by the lessor without authority or in violation of the terms and conditions of the original deed, under which he got power or authority, can make a document voidable but not void. To declare a document voidable, there is requirement of the legal proceeding wherein the issue may be adjudicated after appreciation of evidence. No such proceeding whatsoever has been undertaken by Thakur Govind Dev Ji against the lessor namely Thakur Singh Paur Hanuman Ji Maharaj.
263. There is presumption that a registered document is validly executed and, therefore, would be valid in law. The burden to prove was, therefore, upon the appellants to rebut the presumption on the plea of lack of authority of Thakur Singh Paur Hanuman Ji to execute the lease deed dated 14.9.1910. They have failed to do so and as such it cannot be declared a void, non-est document in the eye of law.
264. Reliance placed upon the judgment in Prem Singh and others v. Birbal and others reported in MANU/SC/8139/2006 : AIR 2006 SC 3608 is misplaced.
265. Lastly, on the question of acceptance of sale deeds paper Nos. 160-Ga, 161-Ga and 162-Ga by the Court to hold that the suit property in all probabilities is Dharmshala known as "Roll Wali Dharmshala", it is argued by the learned counsel for the appellants that only certified copies of these deeds have been filed. Neither the execution of the said deeds nor their contents have been proved. The recitals as to boundaries in the said documents not inter parties are not admissible in evidence and no reliance can be placed thereon.
266. Reference is made to V.A. Amiappa Nainar (died) and others v. N. Annamalai Chettiar (died) and others reported in MANU/TN/0266/1972 : AIR 1972 Madras 154 and Bhuriya v. Mst. Ram Kali reported in MANU/PH/0167/1971 : AIR 1971 Punjab & Haryana 9.
267. In rebuttal, learned counsel for the respondents has placed reliance on MANU/UP/0448/1934 : AIR 1935 Allahabad AIR 1935 All 351 (Mt. Katori v. Om Prakash and another), MANU/UP/0073/1978 : AIR 1978 Allahabad 292 (Hari Lal v. Amrik Singh and another; MANU/UP/0119/1929 : AIR 1930 Allahabad 299 (Tika Ram v. Moti Lal) to submit that recital of boundaries not inter parties are admissible.
268. Section 13 of Indian Evidence Act does not recognizes all remote transactions or instances with regard to any right or custom in question for admission in evidence. Only the transactions and instances enumerated in clauses (a) and (b) of Section 13 of the Indian Evidence Act are relevant.
269. Section 11(2) of the India Evidence Act, however, says that a fact or facts which may not be relevant, may make the existence or non-existence of a fact or facts highly probable or improbable.
270. Thus it is concluded that three sale deeds Paper No. 160-Ga, 161-Ga and 162-Ga though are not admissible in evidence as the document of proof of ownership but recital of boundaries therein are of some substance and relevance for the limited purpose of making probable the existence of "Roll Wali Dharmshala" in Mohalla Govind deo Ji, when read all other evidences on record.
271. This fact i.e. the recital of boundaries therein, therefore, becomes relevant under Section 11 read with Section 13 of the Indian Evidence Act.
272. Much has been argued on the statement of Kishan Lal Tapadia DW-1 the Power of Attorney Holder of the Secretary of the Maheswari Kunj Nyas Trust to submit that there are many contradictions in his statement and that he has accepted the possession of the appellants over the suit property as their residence and further he has deposed against the documentary evidences filed by the respondents. Learned counsel for the appellants has taken the Court through several pages of the cross examination of D.W.-1 to impress upon the court that the respondents have failed to prove their case of suit property being Dharmshala.
273. To deal with the submissions of learned counsel for the appellant in this regard, it would be relevant to note that D.W.-1 was cross examined for approximately the period of five years from 07.02.2001 to 17.05.2005. His cross examination runs in more than 500 pages of paper book No. 3. A perusal of the cross examination of D.W.-1 further shows that the same question was put to him differently several times after recalling him in the witness box. The fact that the witness was cross examined for five years is sufficient to conclude that the contradictions were bound to happen.
274. Moreover, the statement of D.W.-1 would not take away the tenor of the registered deeds which were filed by the respondents in support of their claim. On the alleged contradictions, therefore, the case of the respondents would not fall.
275. In view of the above discussion, it is proved that the suit property is a Dharmshala. The question, thus, answered in favour of the respondents.
Point No. 6:-Nature of Possession of the appellants over the suit property:-
276. So far as the possession of the appellants over the suit property is concerned, from the documentary evidences it is proved that the suit property is a Dharmshala which was constructed by Seth Tulsi Ram and his heirs on a land which was leased out to Seth Tulsi Ram by Thakur Singh Paur Ji Hanuman who in turn got the lease of the land from Thakur Govind Dev Ji Maharaj. Now on the question of possession of the appellants, it would be relevant to note that the Municipal Assessment extract of the year 1943 has been relied upon by the appellants in their plaint to state that the name of the Badami Devi was recorded as owner in the suit property. In the said documents itself, Dharmshala has been recorded in the suit property. The appellants have not been able to explain as to how the words Dharmshala was recorded in the assessment made in the year 1943.
277. An assessment list paper No. 9-Ga for the period from 15.12.1943 to 31.03.1952 is on record. From a perusal of the said documents, it is reflected that in the column for "the name of Mohalla of the property assessed", "Govind Deo Ji" is mentioned. In the column of "designation of property by name or number", single storied Dharmshala building with 13 rooms and a hall with kitchen is entered at serial No. 675. From serial Nos. 676 to 691, there are entries of the shops in the Dharmshala building has been made giving separate numbers. Names of Badami Devi wife of Jamuna Prasad and Ganga Prasad Dubey have been written in the column of "name and address of the owner (and agent, if any)". Similarly in the assessment lists for the period from 01.04.1952 to 31.03.1954 and 01.04.1954 to 31.03.1960, there are entry of Dharmshala in the description of the property in Mohalla Govind Dev and in the column of owner or agent, names of Badami Devi and Ganga Prasad Dubey have been entered.
278. The case of the appellants in their suit No. 71 of 1992 is that the suit property is their residential house which was assessed for the first time in the year 1943. The Municipal Assessment record of 1943 Paper No. 9-Ga has also been relied by the appellants to state that Badami Devi was recorded as owner of the suit property. In the same assessment list, the word "Dharmshala" is mentioned. It has been concluded above on the basis of evidences on record that the suit property is a Dharmshala and the appellants have no title to the same. Thus the court comes to an irresistible conclusion that the names of Badami Devi and Ganga Prasad Dubey were not recorded not as owners in the Municipal Assessment records rather they were recorded as agents, who were looking after the suit property. The contention of the learned counsel for the appellant that there is no cutting of the word "owner" in the heading column of the assessment list and "Roll Wali Dharmshala" was not mentioned therein, is not sufficient to conclude that Badami Devi and Ganga Prasad were recorded as owners therein.
279. Indisputably, the municipal assessment records are not the title documents and cannot be pressed to prove the title to the property in question, however, the nature of the possession of the appellants can be inferred from entries in these documents. Apart form the said assessment lists, there are other letters and correspondence which have been written by Badami Devi and Ganga Prasad Dubey to the Municipal Authorities. These documents have been filed by the respondents to show the nature of possession of the appellants in the suit property and that these documents have been repelled by the learned counsel for the appellants with the contention that they have no concern with the suit property and that these documents do not bear the signature of Ganga Prasad Dubey and thumb impression of Badami Devi. It is submitted that the signatures of Ganga Prasad Dubey on the said document have been categorically denied by P.W.-1, appellant No. 1. No proof has been supplied by the respondents to prove the signatures and thumb impression either by the hand writing expert or with support of any other document. In the list of witness, the name of an official of Nagar Palika Parishad had been given before the trial court but he was never produced nor the record of Nagar Palika Parishad was summoned by the respondents.
280. However, learned counsel for the appellants has not been able to explain the entry of Dharmshala in the Municipal Assessment documents from 1943 till 1960. The correspondence made by Badami Devi and Ganga Prasad Dubey between the said period, therefore, cannot be doubted only on the ground that the signatures and thumb impression therein have not been proved. More so, when there is no dispute with regard to the documentary evidence namely the municipal assessment record including the assessment lists noted above. These documents may not be sufficient to prove the nature of the suit property or the title of the rival claimants, however, are of much relevance to prove the nature of possession of the appellants over the suit property, who have failed on the question of their title.
281. Once it is proved from the evidence on record that the suit property is Dharmshala, these documents are to be read in the aid of the evidences which proved the nature of the suit property.
282. From these documents, it is thus proved that the predecessor-in-interest of the appellants were in occupation of the suit property namely Dharmshala in the capacity of agent of the owner i.e. the persons who were assigned the task of managing the Dharmshala. Over the period of time, the intention of appellants i.e. the successors of Badami Devi and Ganga Prasad Dubey turned dishonest and in order to grab the property, they had set up their claim as owners on the basis of deeds of 1860 and 1890 which they have failed to prove as the documents of their title.
283. The appellants came in the possession of the property under an arrangement made by the owners and continued to remain in possession till their agency was terminated by the owners, impliedly, by execution of registered deed dated 04.05.1991 Paper No. 63-Ka in favour of Maheswari Kunj Nyas trust. After execution of the said deed, written notice dated 18.07.1991 has been given by the respondents, new managers of the Dharmshala.
284. The appellants have disputed the validity of the deed dated 04.05.1991 Paper No. 63-Ka with the contention that the said deed is void-ab-initio in as much as it is in clear violation of the deed dated 07.01.1914 wherein it was declared by Kishan Lal son of Tulsi Ram that the Dharmshala would not be given in Supurdigi of anyone else nor they would alienate the same to anybody else. The deed dated 04.05.1991 has no legal force and is of no legal consequence and no injunction can be granted on the basis of same. It is also urged that the management of Dharmshala could only be changed in a proceeding under Section 92 of the Civil Procedure Code as the document dated 04.5.1991 completely vests Dharmshala in Maheswari Kunj Nyas Trust.
285. These arguments of learned counsel for the appellants have been repelled by the respondent's counsel with the contention that the registered deed Paper No. 63-Ka dated 04.05.1991 had been executed by the owners of the Dharmshala who were party to the suit though as Profarma defendants. At no point of time, they denied the execution of the registered deed nor disputed the rights of the respondents to maintain the suit property. Managerial rights have been transferred by the owners in Dharmshala giving absolute discretion to the respondents to maintain the property in their own way. The appellants, therefore, have no legal right to challenge the assignment of managerial rights to the respondents by the owners.
286. Dealing with the rival submissions of learned counsel for the parties in the light of the documentary evidence on record, it would be apt to consider the contents of the deed dated 04.05.1991, Paper No. 63-Ka, which is the basis of filling suit for injunction. The said document has been executed by Sri Ram Niwas Boob and Venu Gopal, the only heirs or survivors of Seth Tulsi Ram. The statement in the deed is such that the executors expressed their inability to maintain Dharmshala as they had no sufficient means for repairs and renovation of the same. The property of Maheswari Kunj Nyas Trust situated at the south-western side of the suit property was being managed properly.
287. Considering these facts, the management of the suit property was handed over to Maheswari Kunj Nyas trust and further rights have been given to raise construction for the purpose of renovation of Dharmshala.
288. The owners have not given up their rights or title in the property rather they assigned managerial rights to Maheshwari Kunj Nyas Trust and further declared that they would not interfere in the managerial affairs of Maheshwari Kunj Nyas Trust over the suit property. This statement in the deed Paper No. 63-Ka dated 04.05.1991 would not mean that the suit property stood vested in Maheshwari Kunj Nyas trust and thereby became trust property. There is no expression of intention of the owners to surrender their rights in the suit property. As such the suit property cannot be said to be vested in the public trust namely Maheshwari Kund Nyas Trust which has been assigned only the right to manage, make repairs and renovation for the best management of the Dharmshala.
289. In view thereof, the provisions of Section 92 of the Civil Procedure Code would not be attracted. So far as the validity of deed Paper No. 63-Ka dated 04.05.1991 is concerned, there is no violation of the disclosure or declaration made by Kishan Lal heir of Seth Tulsi Ram in the declaration deed Paper No. 158-Ga dated 07.01.1914 in as much as passing of managerial rights to Maheshwari Kunj Nyas Trust in the Dharmshala would not be assignment or Supurdigi of Dharmshala to the said trust. The deed Paper No. 63-Ka dated 4.5.1991, therefore, cannot be said to be void-ab-initio. Moreover, appellants having no right, title and interest in the suit property cannot challenge the action of the owners in handing over the management of Dharmshala to any other person including the respondents.
Point No. 7:- Whether the Original Suit No. 494 of 1992 is barred by
290. Sections 34, 38 and 41 of the Specific Relief Act:-Now, the last question which needs to be answered by the Court is whether the original suit No. 494 of 1992 is barred by Sections 34, 38 and 41 of the Specific Act as the reliefs of declaration and possession over the suit property have not been claimed by the respondents in the said suit. It is contended that in a suit for permanent injunction, the plaintiff has to establish that he is in possession of the suit property, otherwise, he is not entitled for a decree of permanent injunction.
291. Reliance is placed upon the judgment of Apex Court in M. Kallappa Setty v. M.V. Lakshminarayana Rao reported in MANU/SC/0508/1972 : AIR 1972 SC 2299; Ram Saran & another v. Smt. Ganga Devi reported in MANU/SC/0523/1972 : AIR 1972 SC 2685; Terene Trader v. Ramesh Chandra Jamnadas & Co. & another reported in MANU/SC/0724/1986 : AIR 1987 SC 1492; Mehar Chand Das v. Lal Babu Siddique & others reported in MANU/SC/7079/2007 : AIR 2007 SC 1499; Sri Thimmaiah v. Shabira & others reported in MANU/SC/7115/2008 : AIR 2008 SC 1275 and M. Venkatesh & others v. Commissioner, Bangalor Development Authority) with (Commissioner, Bangalor Development Authority v. Prabhudas Patel & others) reported in AIR 2015 SCW 6933.
292. It is stated that the appellants are in possession of the suit property since the time of his ancestors i.e. after execution of the lease deed of the year 1860 and 1890. The respondents have also admitted the possession of the appellants. The respondents cannot get the possession of the suit property without claiming the relief of possession as the simpliciter relief of permanent injunction in absence of the relief of possession sought by the plaintiff of Original Suit No. 494 of 1992 cannot be granted, being barred by the provisions of Sections 34, 38 and 41 of the Specific Relief Act.
293. In rebuttal, the case of the respondents is that the appellants are only agents who have been assigned to look after the suit property on behalf of the owners. Once their agency is terminated, the appellants had no option but to handover possession of the property to the respondents after 1991 to whom rights to manage affairs of "Roll-Wali Dharmshala" have been assigned. The trial court had wrongly decreed the suit of the appellants partly and erred in dismissing the suit of the respondents Maheswari Kunj Nyas Trust. The appellants claimed possession of the suit property on the basis of their title which they have failed to establish, and as such they have no right to retain the possession thereof. No injunction could be granted to them. Reliance is placed upon the judgments of this Court in Arya Samaj (Ganesh Ganj), Lucknow v. Manmohan Tewari & others), reported in 1994 (1) ARC 435; Southern Roadways Ltd., Madurai v. S.M. Krishnan reported in MANU/SC/0522/1989 : AIR 1990 SC 673 and A. Shanmugam v. Ariya Kshatriay Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam reported in MANU/SC/0336/2012 : AIR 2012 SC 2010.
294. Learned counsel for the appellants on the other hand placing reliance upon the judgement of Apex Court In Anathula Sudhakar v. P. Buchi Reddy (Dead) & others reported in MANU/SC/7376/2008 : AIR 2008 SC 2033 submits that the suit for injunction simpliciter is not maintainable in a case where complicated questions of title are involved. The parties seeking injunction on the basis of title must file a suit for declaration of title, seeking possession.
295. Considering the rival submissions, it is noteworthy that the law of injunction is fairly well settled. The relief of injunction is an equitable and discretionary remedy. A person seeking injunction must have personal interest in the subject matter. An injunction, as is well known, being an equitable remedy, the rule of equity that a person who seeks equity must do equity, is applicable to a case in which such an equitable remedy is prayed for. Moreover, the plaintiff asking for such a relief should be able to show that he has come to the court with clean hands. The law for issue of injunction as provided in the Specific Relief Act is governed by the aforesaid principles.
296. A person seeking injunction should show the violation or infringement of his legal right. In a suit for perpetual injunction, the Court may be called upon to hold enquiry to the entitlement, right, interest or status, as the case may be, of the plaintiff to find out as to whether the plaintiff is entitled to protection of his possession by decree of injunction. The question of title in a matter of injunction may be incidentally gone into. Thus, the possession of the plaintiff over the disputed property though assumes importance but at the same time the question of possession per-supposes lawful possession. Long continuous possession can protect a person by seeking an injunction against any person in the world other than the true owner.
297. It is also well settled that even the owner of the property can get his possession only by resorting to "due process of law". Thus the nature of possession of the persons who resists the plaintiff assumes greater importance. The plaintiff whose seeks injunction must prove a better title than that of the persons who is interfering in his possession. Mere long continuous possession without there being any right to the property cannot be a ground to retain possession against the true owner except in a case of adverse possession. A claim of possession based on the title to the suit property is contradictory to the claim of the same person by way of adverse possession.
298. If the plaintiff claims possession on the basis of title, it is incumbent upon the Court to look into the documents of the title to decide as to whether his possession was legal and he is entitled to injunction against the defendants.
299. However, after having lost or failed to prove his title, it is not open for the same person to claim injunction to continue in possession merely on the plea of long continuous possession as admittedly, it would not be a case of adverse possession of the said plaintiff. Adverse possession is a hostile possession against the true owner and is contrary to the claim of the plaintiff being in possession on the basis of his title.
300. The issue of possession and injunction has attained attention of the Apex Court in two recent cases in the year 2012 wherein the Apex Court has extensively dealt with the question of possession in a suit for mandatory injunction, and permanent injunction filed by a person who was mere caretaker of the property. Considering the scope of the Section 38 and 39 of the Specific Relief Act, in the case of Maria Margarida Sequeria Fernandes & others v. Erasmo Jack de Sequeria (Dead) reported in MANU/SC/0225/2012 : AIR 2012 SCW 2162, it is held in paragraph Nos. 61, 62 and 63 that in civil cases, pleadings are extremely important for ascertaining the title and possession of the property in question. Possession is an incidence of ownership and can be transferred by the owner of an immovable property to another by way of a recognized mode of transfer. Possession of a licensee is the possession of the owner. The question of possession is important where there are no title documents and other relevant records before the Court but once the documents and records of title come before the Court, it is the title which has to be looked at first and due weightage be given to it. Possession cannot be considered in Vacuum.
301. In paragraph No. 64, it has been observed that there is a presumption that possession of a person other than the owner, if at all is to be called possession, is permissive on behalf of the title holder. The question in a matter of injunction is the right of the plaintiff to remain or continue in future in possession. It was observed that the right to continue has been abused and misused before the courts. And it was held that whenever pleadings and documents establishing title to a particular property and possession are in question, it will be for the person in possession to give sufficiently detailed pleadings, particulars and documents to support his claim in order to continue in possession. In order to do justice, it is necessary for the court to direct the parties to give all details of the pleadings with particulars. Once the title is prima-facie established, it is for the person, who is resisting the title holders claiming to be possession, to plead with sufficient particulars and produce all such documents which require to establish his claim to remain in possession.
302. In paragraph No. 70, the requirement of pleadings and particulars to be given by a plaintiff seeking injunction have been narrated as under:-
"70. It would be imperative that one who claims possession must give all such details as enumerated hereunder. They are only illustrative and not exhaustive.
(a) who is or are the owner or owners of the property;
(b) title of the property;
(c) who is in possession of the title documents
(d) identity of the claimant or claimants to possession;
(e) the date of entry into possession;
(f) how he came into possession - whether he purchased the property or inherited or got the same in gift or by any other method;
(g) in case he purchased the property, what is the consideration; if he has taken it on rent, how much is the rent, license fee or lease amount;
(h) If taken on rent, license fee or lease - then insist on rent deed, license deed or lease deed;
(i) who are the persons in possession/occupation or otherwise living with him, in what capacity; as family members, friends or servants etc.;
(j) subsequent conduct, i.e., any event which might have extinguished his entitlement to possession or caused shift therein; and
(k) basis of his claim that not to deliver possession but continue in possession."
303. It is further discussed in paragraph No. 80 that in a suit for mandatory injunction, it is bounden duty and obligation of the Court to critically examine the pleadings and documents and pass an order of injunction while taking pragmatic realities including other factors. The Court's primarily concern is to do substantial justice.
304. It is settled principle of law that no-one can take law in his hand. Even the tress-passer in settled possession cannot be dispossessed without recourse of law. What would be the due process of law has been discussed in paragraph Nos. 81 and 82 of the said judgment. It was held that the expression "due process of law", "due course of law" and "recourse of law" have been interchangeably used by the courts to say that the settled possession of even a person in unlawful possession cannot be disturbed "forcibly" by the true owner taking law in his hand". Meaning thereby, the ejectment from settled possession can only be made by recourse to a Court of law. Thus, a persons in settled possession cannot be ejected without a court of law having adjudicated upon his right in comparison to the true owner. "Due process of law" means nobody ought to be condemned unheard. "Due process of law" or "recourse to law" is satisfied the moment, the rights of the parities are adjudicated upon by the court of competent jurisdiction. It does not matter who brought the action to the court. It could be the person who seeks enforcement of his right to eject the person in unlawful possession. It could be the person who is sought to be ejected, for preventing the owner from ejecting him. Whether the action is for enforcement of a right (recovery of possession) or protection of right (injunction against dispossession), is not of much consequence. What is importance is that in either event, it is an action before the court and the court adjudicates upon it. If that is done, then, the 'bare minimum' requirements of "due process" or "due course" of law would stand satisfied as "recourse" to law" would have been taken.
305. It is in this context, it was observed that when a party approaches the court seeking a protection remedy such as injunction and fails in setting up a good case, it cannot be said that the other party must now institute another action in a court of law for enforcing his right i.e.; for taking back something from the first party who holds it unlawfully and, till such time, the court hearing injunction action must grant an injunction. It was held that the stipulation of "recourse of law" stands satisfied when a judicial determination is made with regard to the first party's right to get injunction against dispossession. The consequence would be that the rights of the persons who filed injunction suit ceases in the suit property.
306. In paragraph No. 101, on the question of possession the principles of law which are to be followed have been summarized as under;-
"101. Principles of law which emerge in this case are crystallized as under:-
1. No one acquires title to the property if he or she was allowed to stay in the premises gratuitously. Even by long possession of years or decades such person would not acquire any right or interest in the said property.
2. Caretaker, watchman or servant can never acquire interest in the property irrespective of his long possession. The caretaker or servant has to give possession forthwith on demand.
3. The Courts are not justified in protecting the possession of a caretaker, servant or any person who was allowed to live in the premises for some time either as a friend, relative, caretaker or as a servant.
4. The protection of the Court can only be granted or extended to the person who has valid, subsisting rent agreement, lease agreement or license agreement in his favour.
5. The caretaker or agent holds property of the principal only on behalf of the principal. He acquires no right or interest whatsoever for himself in such property irrespective of his long stay or possession."
307. The above noted principles have been followed by the Supreme Court in another judgment in A. Shanmugam v. Ariya Kshatriay Rajakula Vamsathu Madalaya Nandhavana Paripalanai Sangam, Represented by its President reported in AIR 2012 Supreme Court 2010, wherein a suit for permanent injunction was filed by a caretaker on the ground of long possession of the suit property. It was held that it is bounden duty of the Court to unfold the truth and do justice. The ultimate object of the judicial proceedings is to discern the truth and do justice.
308. These observations have been made while noticing the earlier law laid down by the Apex Court in Rame Gowda v. M. Varadappa Naidu reported in MANU/SC/1044/2003 : AIR 2004 SC 4609 that the possessory suit is good against the whole world except the rightful owner. It is not maintainable against the true owner. Another judgement in Sopan Sukhdeo Sable & Ors v. Assistant Charity Commissioner & others reported in MANU/SC/0071/2004 : 2004 (3) SCC 137 has also been followed wherein it has been observed that no injunction can be granted against the true owner and Section 36 of the Specific Relief Act cannot be invoked to protect the wrong doer who suppress the material facts from the court. Section 41 of the Specific Relief Act would not debar any relief to any such an erring person.
309. Reverting to the facts of this case, the appellants i.e. the plaintiff of original suit No. 71 of 1992 claimed injunction against the respondents (plaintiff of Original suit No. 494 of 1992) on the ground that the land in the suit property is their ancestral property. It was given on lease to their ancestors as early as in the years 1860 and 1890. Two lease deeds have been filed in support of their claim alongwith other documents to assert that they are in possession of the suit property as owners.
310. In the pursuit of finding out truth, this Court after appreciation of oral and documentary evidences has found that the appellants have utterly failed to prove their title to the suit property. Rather their claim was frivolous as the documentary evidence relied upon by them were far-far away from the truth. Their possession over the suit property was only permissive possession and they hold the property only on behalf of the principal owner. However, the Principal i.e. the true owner of the property is not before the Court. The respondents are claiming their right to manage the property assigned to them by way of a registered deed dated 04.05.1991 executed by true owners namely Ram Niwas Boob and Venu Gopal, the heir of Seth Tulsi Ram who had constructed Dharmshala over the suit land.
311. The deed dated 04.05.1991 is a registered deed. The execution of the deed, therefore, could not be disputed. Only dispute raised by the appellants is that that said deed is a void documents being in contravention of the terms of the original lease deed allegedly executed in favour of the owners.
312. All these objections have been examined looking to the contents of the deed itself and it has been held that there is no violation or contravention of the terms and conditions of the original lease deed of 1910 which was executed by Thakur Singh Paur Ji Hanuman in favour of Seth Tulsi Ram with regard to the land, over which Dharmshala has been constructed.
313. Once the registered deed of assignment of managerial rights executed by the true owners is proved, the appellants are not entitled to continue in possession of the suit property as their possession was only permissive with the consent of the true owner.
314. Admittedly, the appellant have not set up a case of adverse possession. Their claim of possession was of the true owners to the exclusion of all others, which they have failed to establish. As a result of it, their possession after 04.05.1991 or to say that after having information about the cessation of their managerial right vide written notice dated 18.07.1991, sent by the respondents, would be of a wrongful person.
315. The question would be whether the appellants have a right to continue in possession and entitled to seek injunction merely on the plea of long possession or admitted possession over the suit property. The answer would be 'No' for the simple reasons that the possession of the appellants after the year 1991 has been proved to be of a wrongful person. In other words, it is held that the appellants have come up to the court in a due process of law seeking injunction against the respondents claiming to be truthful owners of the suit property and have failed to establish their rights, title or interest in the property. They cannot seek injunction to continue in possession for the above noted reasons. They cannot be held entitled to retain possession of the suit property any further.
316. Now the only question survives is for grant of relief of injunction to the respondents namely the plaintiffs of Original suit No. 494 of 1992. The respondents have contested the Original suit No. 71 of 1992 as defendants and filed a separate suit for injunction on the basis of the registered deed dated 04.05.1991 claiming that they have been assigned managerial rights by the rightful owner of the property namely heirs of Seth Tulsi Ram. They have proved their rights and interest in the property on the basis of the registered deed dated 04.05.1991. The relief claimed by the respondents in Original suit No. 494 of 1992 though of permanent prohibitory injunction but is in the nature of mandatory injunction to the defendants i.e. the appellants to remove themselves from the suit property and of permanent prohibitory injunction restraining them from putting any resistance in the affairs of the respondents/plaintiffs for managing the suit property, strictly in accordance with registered deed dated 04.05.1991.
317. The pleadings in paragraph Nos. 21, 22, and 23 of the plaint in Original Suit No. 494 of 1992 are clear and categorical wherein it is stated that the respondents have got the managerial rights vide registered deed dated 04.05.1991 and they gave necessary directions to the appellants for the purpose of renovation and restoration of the Dharmshala buildings. On the resistance put by the appellants, a notice dated 18.07.1991 was given to them which was later on published in the newspaper Amar Ujala on 22.07.1992. The injunction suit No. 71 of 1992 was filed by the appellants in retaliation thereof.
318. Both the parties have led their evidence to prove their rival claim and after the appellants have failed to prove their claim on sufficient opportunity having been provided. They cannot, therefore, be allowed to gain advantage on the ground that the relief of possession has not been prayed by the respondents and the suit filed by them is barred by Section 34, 38 and 41 of the Specific Relief Act, as the relief of possession has not been prayed for.
319. From the law noticed above, it is a settled legal position that the relief of injunction is a discretionary remedy and an injunction can be granted to a party who has been able to prove a better right, interest or title to the property than the party or person who is resisting the claim and is in wrongful possession of the property. Admittedly, the appellants have never claimed that their possession was "hostile" or "adverse" to the title of the true owners.
320. In the fact and circumstances of the case, it is, therefore, held that the respondents i.e. the plaintiffs of Original Suit No. 494 of 1992 are entitled to mandatory injunction against the appellants/defendants requiring them to remove themselves from the possession of the suit property. The trial court has erred in decreeing the original suit No. 71 of 1992 partly and dismissing the original suit No. 494 of 1992 on the ground that the relief of possession has not been claimed for by the respondents and as such they are not entitled to recover possession of the suit property. While doing so, the trial court failed to take into consideration the nature of possession of the appellants being permissive possession and the fact that the respondents have succeeded in establishing better rights and interest in the suit property than that of the appellants.
321. On the question of relief, it is also noteworthy, that vide interim order dated 01.05.2008, the possession of ten vacant shops have been handed over to the respondents in First Appeal No. 55 of 2008 namely the appellants in First Appeal No. 472 of 2007 and First Appeal No. 448 of 2007 and they have been allowed to let out the same on good rent, positively, within three months under intimation to the court. The appellants in First Appeal No. 55 of 2008 namely Radha Saran Dubey and Shiv Saran Dubey have been directed to deposit Rs. 1000/- per month before the court below as rent of the two shops in their possession. It was further noted in the interim order dated 01.05.2008 that the appellants in First Appeal No. 55 of 2008 had stated in the supplementary affidavit dated 28.7.2008 that 12 Kothris have been let out to widows who temporarily resided in the same while working in the Temple situated within the precincts of the property in dispute and no rent was being charged from them. On the said statement, the formal possession of the said 12 Kothri/rooms had been allowed to remain with the respondents namely (appellants of First Appeal No. 448 of 2007 and 472 of 2007). They had also been allowed to manage the temple and submit yearly account in this appeal. They were also held entitled to take suitable proceedings for enhancement of rent against the four tenants of the shops as mentioned in the order dated 24.04.2008, in First Appeal No. 55 of 2008.
322. Lastly vide said interim, order, the possession of Radha Saran Dubey and Shiv Saran Dubey over the two shops and the residential portion in which they were actually residing has been saved till the disposal of the present appeals.
323. There are rivals claims of the parties that the respondents have violated the interim order dated 01.05.2008 as they had failed to comply with the conditions of the interim order dated 01.05.2008 in not letting out the vacant shops on rent and not submitting yearly accounts of the Temple in the present appeals. Civil Misc. Application No. 340689 of 2011 under Section 144 of the Civil Procedure Code read with Section 151 CPC has been filed by the appellants with the contention to restore possession of the property to them which has been delivered to the respondents pursuant to the interim order dated 01.05.2008, which was rejected as the hearing of the appeal proceeded on merits.
324. Thus admittedly, the appellants are in possession of only two shops which are occupied by Radha Saran Dubey and Shiv Saran Dubey and the residential portion of the property in which they are actually residing whereas the possession of ten vacant shops, 12 Kothris and temple in the suit property is with the respondents. The question regarding violation of the interim order dated 01.05.2008 though has been pressed by the learned counsels for the appellants at the initial stage but since the appeals have proceeded for hearing on the merits, they have, conceded to the extent that the question may be decided at the time of final decision in appeal. As this court has come to the conclusion that the respondents are entitled to retain possession of the portion of the suit property which they have obtained under the interim order dated 01.05.2008 and the appellants are liable to remove themselves from possession over the remaining portion of the property namely two shops and the residential portion occupied by them, there is no merit in the contention of the appellants to retain the possession on the ground that the respondents have violated the interim order passed by this Court.
325. Resultantly, the findings of the trial court in the judgement and order dated 28.09.2007 passed by the District Judge, Aligarh on the issue No. 6 in Original Suit No. 494 of 1992 regarding the said suit being barred by Section 38 and 41 of the Specific Relief Act are liable to be set aside. The consequential relief granted to the appellants namely the plaintiff of Original Suit No. 71 of 1992 that they are entitled to retain the possession of the suit property and continue to manage the same till they are evicted by the respondents by adopting due process of law is also liable to be set aside.
Point No. 8:- Relief:-
326. A mandatory injunction is issued in favour of the plaintiffs of Original Suit No. 494 of 1992 namely the respondents herein directing the defendants namely the appellants herein to remove themselves from the two shops and the residential portion of the property in their occupation (retained under the interim order dated 01.05.2008) within a period of three months from today. They are further directed to hand over vacant and peaceful possession of the aforesaid portion of the suit property to the respondents/plaintiffs immediately after the expiry of the period of three months as granted above and they shall file an undertaking in this regard before the court below within a period of three weeks from today.
327. Till the date of handing over vacant possession of the above referred portion of suit property to the respondents, the appellants shall pay a sum of Rs. 1,000/- per month as rent of two shops in their possession. They shall also pay a sum of Rs. 10,000/- (Ten thousand rupees) per month towards the use and occupation of the premises in their occupation for a period of three months. The said amount shall be given to the respondents on or before the 10th (tenth) of every month. In case, the appellants are not willing to pay the said amount for use and occupation of the portion of the suit property as directed above by this Court, they shall handover the vacant possession of the said premises (including two shops) within a period of three weeks from the date of this judgement.
328. The appellants are further restrained from putting any resistance in any manner, in the affairs of the respondents in managing the suit property namely "Roll Wali Dharmshala".
329. The judgment and decree dated 28.09.2007 passed by the Trial Court in Original Suit No. 71 of 1992 (Radha Saran Dubey & others v. Ram Niwas Boob & others) connected with Original Suit No. 494 of 1992 (Registered Trust Maheswari Kunj Nyas Trust & others v. Radha Saran Dubey & others) is hereby being modified to the above extent.
330. The Original Suit No. 71 of 1992 (Radha Saran Dubey & others v. Ram Niwas Boob & others) is, accordingly, dismissed. The Original Suit No. 494 of 1992 (Registered Trust Maheswari Kunj Nyas Trust & others v. Radha Saran Dubey & others) is hereby decreed for injunction.
331. The First Appeal No. 472 of 2007 (Registered Trust Maheshwari Kunj Nyas Govind Ghera v. Sri Radha Sharan Dubey & others) and the First Appeal No. 448 of 2007 (Registered Trust Maheswari Kunj Nyas & another v. Sri Radha Sharan Dubey & others) are allowed. The First Appeal No. 55 of 2008 (Radha Saran Dubey & another v. Ram Niwas & others) and Cross Objection No. 331343 of 2011 in First Appeal No. 448 of 2007 are dismissed.
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