Rajeshwar Ojha and Others vs Most. Kusumi Kuer and Others

V. Nath, J.—Taking exception to the judgment and decree dated 27.04.1977 in favour of the plaintiff by the court of Additional Sub-Judge-4, East Champaran in T.S. No. 371 of 1969/36 of 1977, the defendant 1st set have filed this appeal. The aforesaid suit was filed by the plaintiff for declaration of his title and possession over the suit land. The plaintiff also claimed mesne profits from the date of his dispossession.

As the factual matrix would unveil, the suit land admittedly belonged to the plaintiff and his brother Bijali Ojha. It is however, the case of the plaintiff that although he and his brother (now deceased) executed a registered deed of endowment (Samarpannama) on 12.10.1950 dedicating the suit property in favour of the deity Shri Gopal Ji @ Radha Krishana Ji installed in Hathilwa Math, appointing Sri Ram Swaroop Das, the Mahanth of the Math, as Mutawali, for the maintenance and Ragbhog of the said deity but the said dedication was not accepted by the Mahanth Sri Ram Swaroop Das and the deed was returned by him after endorsing the refusal on the same. It is the case of the plaintiff that the endowment, as such, remained ineffective and inoperative and the plaintiff and his brother continued in possession of the suit property under dedication as title holder thereof. The plaintiff has also stated that the deed of cancellnama was also executed on 23.07.1966 in order to avoid future complication, whereby after stating the relevant facts, the endowment deed was cancelled. The plaintiff has however alleged that the defendant 1st set with malafide intention obtained three sale deeds dated 21.11.1966, for the suit land in collusion with Brij Kishore Das who was the Gurubhai of the present Mahanth defendant No. 4 and on the strength of the said sale deeds, the defendants forcibly dispossessed the plaintiff on 27.04.1967 from the said land.

The defendant No. 4 (the present Mahanth) and defendant No. 5 (the deity) did not file the written statement nor contested the suit. However the suit has been contested by the defendant Nos. 1 to 3 (defendant 1st set) who have asserted in their written statement that the plaintiff and his brother had, after executing the endowment deed (Samarpanama) in favour of the deity, completely divested themselves of the title and possession over the suit property and started living in the Math itself. It has been further claimed that the endowment deed was fully acted upon and the suit properties continued in possession of the Math. It is further case of the defendants that the Brij Kishore Das who succeeded Ram Swaroop Das as Shebait of the Math validly executed the three sale deeds in favour of the defendant 1st set with regard to the suit properties and also delivered the possession to them. The defendants have denied to have forcibly dispossessed the plaintiff from the suit properties.

On the basis of rival pleadings of the parties, the following issues were framed in the suit:--

(i) Has the plaintiff cause of action and is his suit maintainable?

(ii) Is the suit barred by law of limitation?

(iii) Had the deed of Endowment dated 12.10.50 become operative and had its executant divested themselves of all the properties covered by it and Math got possession of it?

(iv) Have the defendants first party got title over the suit lands on the basis of their sale deeds?

(v) Is the alternative plea of title by adverse possession of the plaintiff correct?

(vi) Is the plaintiff entitled for the reliefs claimed?

The trial court after considering the pleadings and evidence of the parties, returned the finding that the deed of endowment dated 12.10.1950 remained ineffective and inoperative and the plaintiff and his brother did not divest themselves of the properties mentioned in the endowment deed. It has also been found that the Math never came in possession over the properties on the basis of endowment deed. Sequentially it has been held that the defendant 1st set did not acquire title over the suit land on the basis of the sale deeds executed in their favour by Brij Kishore Das. The suit has therefore been decreed and the plaintiff has been held to be entitled to recovery of possession as well as mesne profits.

Assailing the legal preganability of the judgment under appeal, Mr. M.P. Bharti, the learned counsel for the appellants has contended that the learned court below has failed to consider the evidence on record in true perspective and the conclusions recorded by it are not sustainable either on facts or in law. It has been submitted that there has been ample evidence to support the fact that the Hathilwa Math came in possession of the dedicated properties by the plaintiff and continued in possession over the same till the transfer of title in favour of the defendant 1st set. It has also been submitted that the endowment deed also remained in possession of the Mahanth of the Math and it was only later on that the plaintiff, by bringing the present Mahanth (defendant No. 4) in collusion, obtained the same. It has been urged that the rent of the suit land was also paid by the Mahanth to the State of Bihar through the plaintiff. It has also been argued that the deed of cancellation (Ext. 4) being the certified copy was not admissible in evidence as the procedure for adducing secondary evidence was not followed and no ground for adducing such evidence was made out but the learned court below has wrongly placed reliance on the same. It has been argued that all the witnesses of the defendants are the villagers and competent persons and their evidence should not have been disbelieved. It has been finally submitted that the plaintiff has failed to establish the allegations made in the plaint and the suit is fit to be dismissed.

Mr. Binod Kumar Singh, the learned counsel for the plaintiff-respondent in reply, has submitted that there is no evidence at all on behalf of the contesting defendants to show that the dedication made by the plaintiff had ever been effective. It has been urged that the plaintiff has successfully established by evidence that the deity through Mahanth, in whose favour the dedication was made never came in possession over the endowed property and the possession continued with the plaintiff and his brother and these facts are supported by the complete absence of evidence on behalf of the defendants regarding the mutation in favour of the deity over the suit land or evidence regarding the utilizations of the usufruct of the suit land for the benefit of the deity. It has been further submitted that the defendant No. 4 (present Mahanth) or defendant No. 5 (deity) has also not come to support the claim of the defendants and even nobody concerned with the deity or the Math has been produced by the defendants in support of their case. It has also been pointed out that the contesting defendants as purchaser of the suit properties, which were admittedly dedicated to the deity, were bound to plead and prove the legal necessity for transfer of the properties in their favour by the Mahanth but they have failed to plead and prove the same. It has been finally submitted that the learned court below has considered each and every aspect of the case on the basis of the evidence on record and has rightly decreed the suit in favour of the plaintiff.

In view of the rival contentions of the parties the singular point to be decided in this appeal is as to whether by executing the registered endowment deed dated 12.10.1950 (Ext. 2), the plaintiff and his brother had divested themselves of their title and possession of the endowed properties or the endowment had become operative and effective since after the execution of the deed.

The suit property admittedly belonged to the plaintiff and his brother Bijali Ojha. It is also admitted fact that the plaintiff and his brother Bijali Ojha had executed a registered deed of endowment (Samarparnama)dated 12.10.1950 in favour of the deity Sri Gopal Ji @ Radha Krishan Ji installed in Hathilwa Math with regard to the suit property and had nominated Ram Swaroop Das Ji, the Mahanth of the said Math as Mutawali. It is, however, the case of the plaintiff that the said dedication was not accepted by the Mahanth and therefore it did not become effective and operative and the title and possession remained with the plaintiff and his brother over the suit properties which were the subject matter of the endowment deed. The contesting defendants, however, have asserted that the dedication by the plaintiff was fully acted upon and the Math came in possession over the dedicated property mentioned in the endowment deed (Ext. 2). The defendants have claimed that later on due to difficulty in managing the endowed property, the succeeding Mahanth Brij Kishore Das had sold the same for consideration conferring valid title and possession in their favour.

The original registered copy of the endowment deed has been produced on behalf of the plaintiff and has been marked in evidence as Ext. 2. This deed has been executed by the Bijali Ojha (since deceased) and Hiraman Ojha (the plaintiff) and the nature of the deed has been mentioned as ''Samarpannama''. This deed has been executed in favour of the deity Sri Gopalji @ Radha Krishana Ji through Mutawali and Pujari Mahanth Ram Swaroop Das Ji. The relevant recitals of this deed read as follows:--

The plaintiff''s case is that the aforesaid dedication was not accepted by Mahanth Ram Swaroop Das and he returned the deed to the plaintiff after making endorsement/note of his refusal on the back of the deed. This endorsement/note by Mahanth Ram Swaroop Das has been marked as Ext. 3. The plaintiff has examined P.W. 6 and P.W. 8 in support of the fact of endowment/note of refusal by Ram Swaroop Das Ji. P.W. 6, Suraj Deo Singh in his deposition has stated that Ram Swaroop Das had written note of refusal in his presence. He has further deposed that Ram Swaroop Das had stated that he had no concern with the land of the plaintiff. P.W. 8, Radharaman Das has claimed himself to be the Chela of Ram Swaroop Das. He has deposed that Hiraman Das (the plaintiff) went to Mahanth Ram Swaroop Das with the endowment deed but he refused to accept the same and had also made an endorsement/note in that regard on the deed. He has further stated that he had also put his L.T.I. on the said endorsement. He has also deposed that Hiraman Das had not executed the endowment deed after taking prior consent of Ram Swaroop Das. P.W. 9 is Ram Deo Choudhary who has stated that he used to visit the Math regularly. He has supported the refusal by Ram Swaroop Das and the endorsement made in that regard on the endowment deed. However, the defendants who denied the genuineness of the endorsement by Ram Swaroop Das Ji on the endowment deed have not led cogent evidence to prove their assertion. The denial by the defendants of the endowment thus has remained unsupported by evidence, and they have failed to discharge the onus which had shifted upon them in this regard, in view of the aforesaid evidence by the plaintiff.

As noted above, the original registered copy of the endowment deed (Samarpannama) dated 12.10.1950 has been produced by the plaintiff. It has been alleged by the defendants that the plaintiff managed to get the original copy of the deed by bringing the present Mahanth (defendant No. 4) in collusion. The defendant No. 2 has been examined as D.W. 9 and defendant No. 3 has been examined as D.W. 10 and they have stated in their deposition that the original endowment deed (Ext. 2) was in possession of their vendor Brij Kishore Das on the date when the sale deeds had been executed in their favour. However, there is no explanation by the defendants as to why the original endowment deed remained with the vendor when the entire land covered by the endowment deed had been transferred in favour of the defendants. It is the normal conduct of the purchaser to obtain the title deed of the purchased property from his vendor and the vendor also generally hands over such document of title to the purchaser as he no more requires the same after the transfer of the title in favour of the vendor. The three sale deeds in favour of the contesting defendants have been executed on 21.11.1966 but prior to that the plaintiff had executed the deed of cancellation (Ext. 4) on 28.07.1967. It is pertinent to mention here that on this deed of cancellation, Dinanath Jha, father of the defendant No. 1 and cousin of defendant Nos. 2 and 3 had appeared as an attesting witness. In this deed of cancellation, the statement was made by the plaintiff that the original endowment deed was with the plaintiff. On the date of executing the cancellation deed on 28.07.1967, the plaintiff had no reason to state an untrue fact, much more when the sale deeds in favour of the defendants were executed nearly four months thereafter. Thus, the possession of the original endowment deed with the endowment/note of refusal by Ram Swaroop Das with the plaintiff and the absence of satisfactory evidence in rebuttal on behalf of the defendants are demonstrative enough of the real facts and the court below, after marshalling the evidence, has also drawn the correct conclusion in this regard. The contesting defendants have also not adduced any evidence to show that the name of the deity has been mutated for the endowed properties after the acceptance of the dedication. As mentioned earlier, nobody related to the deity or the Math has come to support the case of the contesting defendants. The recitals in the endowment deed also show that the Mutawali was required to get the name of the deity mutated for the endowed properties but it could not be proved by the defendants that such mutation was ever done. To the contrary, the plaintiff have adduced in evidence the rent receipts (Ext. 1 series) and the perusal of these rent receipts reveals that they have all been issued the name of the plaintiff for the suit land and are up to the period of 1965-66. These rent receipts have established that the plaintiff had been paying the rent of the properties covered by the endowment deed dated 12.10.1950 for continuous 16 years thereafter. If the dedication was accepted, as claimed by the defendants, it was the deity and not the plaintiff who would have paid the rent and got the rent receipt in his name. This fact supports the case of the plaintiff that the dedication through the endowment deed (Ext. 2) did not come into effect after the refusal by Mahanth Ram Swaroop Das. The payment of rent by the plaintiff continuously since long after the endowment deed also leads to the inference that the plaintiff continued in possession over the suit property. Although the defendants have pleaded that the rent was paid by the Mahanth through the plaintiff but no evidence has been led in support of the said fact.

The oral evidence adduced on behalf of the defendants in support of the possession of the Math over the endowed property is also not convincing. D.W. 1 Bujhawan Rai has deposed that Bijali Ojha (brother of the plaintiff) died in his house and the plaintiff Hiraman Ojha resides in his house which is contrary to the case of the contesting defendants that after dedicating their entire properties, the plaintiff and his brother started residing in the Math. This witness has also stated that he does not recognize any body from Math. The D.W. 2. Guder Raut has deposed that Mohar Ojha used to get the land cultivated on behalf of the Math. However, neither Mohar Ojha nor any person from his family has been examined on behalf of the defendants to support the said fact. The D.W. 5 Hardeo Rai and the D.W. 6 Manne Rai have claimed that they used to cultivate the land under Batai from Math but in his cross examination the D.W. 5 has expressed his inability to give details of the land or the detail facts regarding the Batai, and the D.W. 6 has accepted that he had been cultivating the land in Batai through Bijali Ojha and Hiraman Ojha. The court below has scanned the oral evidence led on behalf of the defendants and has not given credence to the same. No substantial reason could be assigned on behalf of the appellants, during course of argument, to take a different view. On the other hand, the oral evidence on behalf of the plaintiff clearly demonstrate that the plaintiff continued in possession over the suit land till his dispossession by the contesting defendants and the Math never came in possession. Nothing in the deposition of the plaintiffs witnesses could be pointed out on behalf of the appellants to discredit their testimonies.

The cumulative effective of the entire evidence on record leads to the irresistible conclusion that the endowment deed (Ext. 2) became a dead letter after Mahanth Ram Swaroop Das refused to accept the dedication, and did not result in divesting the plaintiff and his brother of their title and possession over the suit land. From the impugned judgment also it transpires that the learned court below has examined in detail the evidence led by the parties and thereafter has come to the conclusion that the endowment deed was not acted upon and did not become effective, and the deity never came in possession over the endowed property which continued in possession of the plaintiff as title holder thereof. I do not find any illegality in these findings by the trial court.

The principles with regard to a valid dedication are well established. The execution and registration of the endowment deed are not by themselves sufficient to divest the dedicator of the ownership over the endowed property rather in case of dispute, it is required to be established that the endowment became effective and operative since after its creation. It would be fruitful to reminisce the observations of their lordships in the case of Thakur Parmod Banabihari Vs. C.G. Atkins and Others, , as follows:--

............Dedication to be effectual must be real and not nominal, and it must be shown that the grantor completely divested himself of every portion of the property........................... .................................................................. and the dedication must be held to be nominal when there is no proof of the application of the income of the property endowed for the maintenance of the idol, and when the whole conduct of the parties is inconsistent with the hypothesis of a valid trust........

In the case of Deo Saran Bharthi and Another Vs. Deoki Bharthi and Another, the similar view has been spelt out and the emphasis has been laid on the consideration of the evidence of possession and mutation over the land subject matter of dedication to find out as to whether the dedication became effective and operative. It has been observed as follows:--

.........No such document on behalf of the plaintiffs has been produced showing the dealings of the property by the donee on the footing that the properties were the dedicated properties of the God Shiva; not even the account of the income and expenditure has been produced showing that the donee received any income of the property or spent anything towards the purposes for which the dedication of the trust was created. The actual possession of the properties has been similarly proved to have been continued in Sheosaran Bharthi unaffected in any way by the trust deed of the 1912 in question. The rent receipts Exts. C. to C-24 prove that the rents were paid by Sheosaran Bharthi and his name stood recorded in the landlord''s Sarishta; there is nothing to show that any rent was paid by the donee to the landlord......

In the case of Harihar Prasad and Another Vs. Siri Gurugranthsaheb under The Management of Mahabir Prasad, , their lordships again put emphasis on the consideration of the evidence of complete divesting by the dedicator of ownership and possession over the endowment property for establishing a valid dedication.

In the present case no evidence has been adduced on behalf of the defendants to demonstrate the income, if any, from the dedicated properties and the fact that the said income was ever applied for the purpose of the deity and its Ragbhog. There is also no evidence that any attempt was ever made by the Mutawali Sri Ram Swaroop Das or even his successor to get the name of the deity mutated with regard to the endowed property. The evidence on possession of the Mutawali over the endowed property is also far from satisfactory. It has also been found that the original deed of endowment has been produced by the plaintiff and it also contains the endowment/note by the Mutawali refusing to accept the dedication. This factual scenario pronouncedly reveals that the dedication through endowment deed dated 12.10.1950 had not been operative and effective and the plaintiff was not divested of his title and possession over the suit property. Consequently, there is no difficulty in holding that the deity never acquired title and possession over the suit property on the basis of endowment and thus the sale deeds in question executed in favour of the defendants by Brij Kishore Dar purporting to act on behalf of the deity, are held to be not valid to convey title over the suit property to the defendants.

The trial court has meticulously scanned the pleadings and evidence of the parties and has rightly come to the conclusion that the plaintiff is entitled to the reliefs sought for in the suit. In the ultimate eventuate, this appeal being sans merit, is dismissed. In the facts and circumstances of the case, there shall be no order as to costs.