Hargovind vs State of M.P.

S.C. Pandey, J.—This is plaintiff''s appeal u/s 100 of the Code of Civil Procedure, against the Judgment and decree dated 30.10.1988 passed by IInd Additional Distt. Judge, Tikamgarh, in Civil Appeal No. 18-A/88 arising out of Judgment and decree dated 17.2.1984 passed by Civil Judge Class-II Tikamgarh, in Civil Suit No. 7-A/84.

The appellant filed a Civil Suit No. 7-A/84 for declaration that the order dated 5.6.80 passed by S.D.O., Tikamgarh in Case No. 33/B/121/79-80 be declared illegal and set aside; and the appellant be declared as validly appointed Pujari of the temple of Narsingh Bhagwan which was constructed by Kaushalya Das, at Shailsagar, Tikamgarh. It was also claimed that the property attached to the temple, bearing Khasra Nos. 667, 668 and 670 to 673 area 11.80 acres and the house be declared as the private property of Shyam Bai, who was the defendant No. 2.

The case of the appellant was that the founder of the temple was Kaushalya Das, who constructed a house and a temple of Narsingh Bhagwan attached to it, at Shailsagar, Tikamgarh. The agricultural land and the house as mentioned in the previous paragraph of this judgment belonged to Kaushalya Das. Kaushalya Das had got built a private temple and he used to worship there. The aforesaid agricultural property was situate at Tikamgarh and was used for worshiping the Deity of the temple. Kaushalya Das died 50 years back. Thereafter, the suit property being the private property of Kaushalya Das, was inherited by his son, Rambharose. He become the owner of the temple as well as the property by inheritance. Rambharose died 10 to 12 years before the filing of the suit. He died leaving behind him his widow and his daughter, whose daughter was married to the appellant. Therefore, Shyam Bai wife of Rambharose appointed the appellant, who was husband of her grant daughter, in her old age as Pujari of the temple. The appellant had made Shyam Bai as defendant No. 2 in the suit. Subsequently, her name was deleted by the appellant due to her death during pendency of the first appeal, as per order dated 30.3.90 in this appeal. The appellant claimed that he was in possession of the temple as well as the suit property for the last 10 years and was doing service of the Deity Narsingh Bhagwan. However, the S.D.O., Tikamgarh, by the order dated 5.6.80 declared that the appellant shall not be allowed to serve as Pujari of the temple and he was removed from his office. The claim of the appellant was based on the proposition that the suit property was the private temple of Kaushalya Das and, thereafter, his son Rambharose and after death of Rambharose his wife Shyam Bai inherited the temple and Shyam Bai had full right to appoint a Pujari of the Deity in the temple and the State Government had no right and title to interfere with the management of the temple or the property of the temple. After service of notice u/s 80 of the Code of Civil Procedure, the appellant challenged the order dated 5.6.80 of the S.D.O., Tikamgarh as already indicated above.

Shyam Bai, who was the defendant No. 2 in the suit house, accepted the claim of the appellant. However, the claim of the appellant was contested by the respondent No. 1, claiming, inter alia, that the suit property was not the private property. It was a public property. It was right and title of the State Government to manage the temple belonging to public. It was stated that in the revenue records the Collector was registered as manager of the temple and Har Govind Brahmin was registered as Shivayat or the Pujari of the temple. The Collector had full right to remove Har Govind Brahmin as the Pujari of the temple. It was claimed that the appellant wanted to usurp the public temple and has, therefore, laid a false claim against the State. It was further claimed that when the Collector, Tikamgarh, received the complaint of mis management of the temple property on the part of the appellant, he removed the appellant by order dated 11.1.78. A suit was filed by the appellant Har Govind against the State of Madhya Pradesh and Shyambai the defendant No. 2, in the Court of Civil Judge Class-I Tikamgarh, which was registered as Civil Suit No. 14-A/78. This suit was dismissed in default on 24.7.79. The order of dismissal of that suit amounted to res judicata. The notice u/s 80 of the CPC was without any foundation, and therefore, the suit was liable to be dismissed. The suit was also liable to be dismissed on the ground for non-joinder of the Deity of the temple.

The trial Court held that the suit property was private property and did not belong to State. The defendant No. 2 was entitled to be declared as a Pujari of the temple. It was she who appointed the defendant as manager of Shivayat of the property and the appellant was in possession of the property for the last ten years. The order dated 5.6.80, passed by the S.D.O., Tikamgarh in Case No. 33/B/121/79-80 was illegal. Civil Suit No. 14-A/78 would not amount to res judicata in the facts and circumstances of the case. It was further held that the suit was maintainable and the appellant had paid the proper Court-fees. It was also held that the Deity of the temple was not a necessary party to the suit. Accordingly, the trial Court decreed the suit holding that the temple and the suit property i.e. H. No. 31 Ward No. 13 and the agricultural land bearing Khasra Nos. 667, 668, 670 to 673 area 11.80 acres, situate at Tikamgarh was the private property and defendant No. 2 was declared to be the Pujari of the temple. The order dated 5.6.80 passed by the S.D.O. was held to be illegal and was set aside.

The lower appellant Court, however, allowed the appeal, filed by the respondent No. 1. It was held by the lower appellate Court that as per Ex. P-1, dated 22.8.45 the Patta, the agricultural land was registered in the name of Kaushalya Das and the Pujari was named as Sitaram. However, from Ex. D-3, it appears that after the death of Sitaram Rambharose was serving as Pujari of the temple. After the death of Rambharose his wife Shyam Bai got the appellant Hargovind appointed as the manager of the temple. Looking to the patta, Ex. D-3 the lower appellate Court came to the conclusion that the property did not belong to Shyam Bai or the appellant. It was a public property and as such it held it to be a public trust. It was held by the lower appellate Court that as per Ex. P/2, the appellant had served a notice in which he had stated that the suit property was a public trust and, therefore, also the lower appellant Court had come to the conclusion that the suit property was a public trust. The lower appellate Court, however, confirmed the finding of the trial Court that the appellant was in possession of the temple and the suit property for the last 10 years. The lower appellate Court further held that the trial Court had rightly held that the earlier suit would not amount to res judicata. However, the lower appellate Court came to the strange conclusion that the appellant was bound to pay Rs. 60/- as court-fees and not Rs. 30/-, as held by the trial Court. The lower appellate Court has also held that the Deity of the temple was a necessary party.

This Court at the time of admission of this appeal, after hearing the learned counsel for the appellant by order dated 9.3.89 framed the following substantial question of law :-

Whether the courts below were right in dismissing the suit on a finding that the S.D.O. had jurisdiction to remove the appellant even though the trust was not registered under the provisions of M.P. Public Trusts Act, 1951 ?

There is another substantial question of law as follows, which requires determination of this Court in this appeal :-

Whether the temple or Deity of the temple is necessary party to the suit?

Having heard the learned counsel for the parties on the aforesaid substantial question of law, this Court is of the opinion that this appeal must succeed and it deserves to be allowed. The lower appellate Court had no power or jurisdiction to declare the property, in question, including the right of worship in the temple got built by Kaushalya Das, a public trust. Under the provisions of M.P. Public Trusts Act, 1951 (henceforth ''the Act'') a public trust has to be so registered by the Registrar of the Public Trusts on an application u/s 4 of the Act. The procedure has been given u/s 5 of the Act according to which, the Registrar of the Public Trusts has to record a finding after making all the enquiries and give reasons therefor. Thereafter the Registrar is required to make an entry in register of Public Trusts as per Section 7 of the Act. This entry made by the Registrar becomes final after the procedure u/s 7 (1) of the Act has been followed and it is liable to be challenged only by way of a civil suit as provided by Section 8 of the Act.

Section 4 of the Act makes it clear that the application for declaring a trust already in existence, a Public Trust under the Act, has to be made within three months of commencement of that Section in a particular area. It is clear from the facts of this case that the trust maintained by Kaushaya Das was already in existence when the Section 4 was applied to the area. No such procedure was followed for declaring the suit properly as public trust by anyone and, therefore, the question of declaration u/s 8 of the Act that the temple of Narsingh Bhagwan was a public trust and the property belonged to the public trust, did not arise. The civil Court would not have any jurisdiction to decide the question as to whether particular property is public trust or not unless and until an enquiry is made by the Registrar of Public Trusts, u/s 5 of the Act; and a finding is recorded by him. It is not disputed before me that the Act (M.P. Public Trusts Act, 1951) is applicable to the facts of this Case. In view of this matter, the lower appellate Court had no jurisdiction in a suit filed by the appellant, to declare the property, in question, as public trust. The conclusion of the lower appellate Court in this regard does not appear to be sound. On the other hand, there is clear evidence totally contrary on record. Ex. P-1, Pattashow that the suit property belonged to Ksushalya Das and the temple, in question, was known as ''temple Kaushalya Das'' and its Pujari was Sitaram. This is no evidence on record to suggest that this property belonged to the State or the State had established the temple and Kaushalya Das was appointed its Pujari. No evidence has been led by the respondents that how the Collector or the S.D.O. came to the conclusion that the suit property was a public trust. The respondents have not produced any record for showing that the State had established the temple and not Kaushalya Das; nor there is evidence on record except the assertion of the S.D.O. A. Arjariya, D.W. 1 that the temple Kaushalya Das was recorded as a public trust. He has not filed a single document to show that any enquiry was made by the Registrar, Public Trusts, or the suit property belonged to the State and the temple was established by the State and not by Kaushalya Das.

Looking to the facts and circumstances of the case, and the fact that it is held that after Kaushalya Das, Sitaram was managing the property and after Sitaram, Rambharose was managing the property, there is evidence on record that Rambharose and Sitaram were brothers and Shyam Bai was wife of Rambharose and she continued to manage the property after death of Rambharose. There is clear evidence on record that the suit-temple and the property belonged to Kaushalya Das and thereafter it came to Sitaram and after death of Sitaram, it went to Rambharose. The defendant No. 2, Shyam Bai, being the widow of Rambharose was entitled to succeed to the temple and the suit property. The conclusion of the lower appellate Court is not based on appreciation of the evidence on record but merely on a hazard that the suit property must be a public trust. Such a finding of the lower appellate Court without any evidence on record, is held to be totally illegal and perverse. The evidence on record sustains the finding recorded by the trial Court that the respondent/State has not established the temple. It was never declared as public trust at the instance of the members of the public. There is also no evidence on record that public was worhsiping as of right in the temple for a considerable time. There is no indication to hold that the suit-temple was ever treated as belonging to public by public at large in the past. Therefore the evidence of P.W. 1, Hargovind and P.W. 2 Ramsingh has to be accepted as the respondents were unable to prove that how the suit property became the public property and how the temple, in question became a public temple.

The respondent No. 1, however sought to contend that the State Government had full right to interfere with the case of a public temple as per executive instructions issued by the State Government in Memo No. 745/3693/VIII/73 dated 12.4.74. In the opinion of this Court, this memorandum is not applicable to the facts of this case where the temple is a private property. In the case of Sadashiv Giri & others v. Commissioner Ujjain & others, reported in 1985 RN 317, a Division Bench of this Court pointed out that this memorandum of the State Government did not relate to a private temple. The aforesaid memorandum issued by the Survey and Settlement Department of the Government of Madhya Pradesh, related to only public temples and not to private temples. Therefore the S.D.O. had no power to interfere with the management of the property or the temple in question which belongs to the private persons. By order dated 5.6.80, passed by the S.D.O. in Case No. 33/B/121/79-80, the appellant has been removed as Pujari of the temple without any authority of law and a new Pujari, known as Ghanshyam Das Pujari has been appointed. Such an order would be said to be not within the competence of the S.D.O. In Sadashiv Giri''s case (supra) it has been held by the Division Bench of this Court that even if a party be a tresspasser, it can only be removed by a due process of law and not by usurping a power by the authorities. Learned counsel for the respondent No. 1 was unable to satisfy this Court under what law the S.D.O. or the Collector had power to remove the Pujari of a Private temple without following the procedure established by law under the Act. Even if the aforesaid temple was a public trust, there was a provision u/s 26 of the Act for seeking a direction from the Court regarding management or the administration of a public trust. Therefore, the lower appellate Court was totally wrong in holding that the revenue officers of the State Government could usurp the power and declare any property as public trust, if it appears to them to be so, without following the procedure established by law. It appears to this '' Court that such a power is not vested even in a Civil Court much less in the authority exercising the power under the MP. Land Revenue Code.

Therefore, the finding of the lower appellate Court that the suit property, including the temple, was a public trust, is et aside, as it was the private property of Kaushalya Das. The substantial question No. 1 is, therefore, answered in favour of the appellant and against the respondent.

The next substantial question is whether the temple or the Deity of the temple was a necessary party to the suit. In the opinion of this Court the lower appellate Court was not right in its conclusion that in a suit for declaration, the Pujari had no right to file the suit when he was removed from the office arbitrarily by the authorities of the State Government. It was the appellant who was really aggrieved by the order passed by the S.D.O. and the appellant was claiming that the suit property belonged to Shyambai. The appellant did not say that Baba Kaushalya Das had got built a private trust and dedicated the suit property to the Deity in the temple. The case of the appellant was that the suit property belonged to Baba Kaushalya Das and thereafter, his successors-in-title. It was purely a private property and not either a private trust or a public trust. In the facts and circumstances of the case, there was no necessity to make the temple or the Deity of the temple, a party to the suit. The lower appellate Court has wrongly held that the temple or the Deity of the temple was a necessary party to the suit. Therefore, the substantial question No. 2 is also answered in favour of the appellant and against the respondent.

It appears from the order sheet dated 30.3.90 that the name of Shyambai was ordered to be deleted from the array of the respondents. It was stated in the order sheet dated 30.3.90 that question of abatement of the appeal against the respondent No. 2, Shyambai, shall be considered at the time of final hearing. It appears from the application and the death certificate attached to it that Shyambai died on 9.5.85 during the pendency of the appeal before the lower appellate Court. No steps were taken by the respondent No. 1 to bring her legal representatives on record or for deleting her name from the array of parties. It appears from the evidence of P.W. 1, Hargovind that Ram Piyari was daughter of Shyambai and Ram Piyari''s daughter was Ramwati. Thus, it appears that the legal representatives of Shyambai were alive at the time when the evidence of the appellant was recorded. Looking to the common course of events it can be presumed that Shyambai died leaving behind her legal representatives. No attempt was made by the State to bring her legal representatives on record during the pendency of first appeal. At the second appellate stage also no attempt was made to controvert the facts stated in I.A. No. 1881/90 filed by the appellant. It is not the case of the respondent No. 1 before this Court that Shyambai had died without any legal representative. Nor it has been asserted on the other side that the appellant could be the legal representative of Shyambai. Therefore, the decree in favour of Shyambai that she was entitled to be declared as a Pujari of the temple and such property was private property could not be set aside in absence of her legal representatives. Nor could the lower appellate Court set aside the decree of the trial Court declaring that the order dated 5.6.1980 passed by the S.D.O. was illegal and liable to be set aside. It affected Shyambai. The question, therefore, would be, if abatement of appeal against Shyambai resulted in abatement of the first appeal in toto. In the opinion of this Court there is no option before this Court except to hold that the first appeal had already abated fully and not partially. The first appeal court could not have set-aside a decree in favour of a dead person whose legal representatives were vitally affected by its setting aside. The decree of the trial Court is joint and indivisible in favour of the appellant and Shyambai so far it related to setting aside of the order of the S.D.O., dated 5.6.1980. In view of this matter the entire appeal abated before the first appeal Court as no steps were taken by the respondent No. 1 for setting aside abatement at first appellate stage or before this Court.

The result of the aforesaid discussion is that the appeal succeeds and is allowed. The judgment and decree passed by the lower appellate court are set aside and that passed by the trial Court are hereby restored. The decree of the trial Court is maintained on merits as well as on the ground that the first appeal aforesaid stood abated when Shyambai died. However, there shall be no order as to costs.