Tara Chand vs Pt. Bhagwan Dass etc.

S.P. Goyal, J.—This second appeal has arisen out of a suit filed in a representative capacity by resrondents No. 1 to 4 for a declaration that the sale made by Smt. Savitri and Smt. Chandro, Respondents No. 5 and 6, in favour of the Appellant of the two vacant plots through sale deed dated December 20, 1962 was null and void and ineffective against the rights of the Hindu Public and Dev Karan Bhawan, a religious and charitable institution, alleged to be its owner. The case set up by them was that Dev Karan made an application to the Municipal Committee, Bhadurgarh for transfer of the land measuring 1 bigha for the construction of a dharamshala. The Municipal Committee passed the necessary resolution and after getting sanction of the commissioner transferred the land to him. Dev Kann then submitted plan, exhibit P-3, which was duly approved by the Committee and constructed a dharamshala in accordance therewith. As the dharamshala and the vacant lands around it since then are in the use of the Hindu community particularly and the public at large, Respondents No. 5 and 6, the natural heirs of Dev Karan, have no propriety interest in them and were not competent to sell the plots in dispute.

The suit was contested by the vendors as well as the vendee who asserted that the property in dispute was private property of Dev Karan and that the dharamshala was not a religious or charitable institution. The trial Court holding that the dharamshala, a religious and charitable institution, was the owner of the land in dispute, decreed the suit. Its findings having been affirmed, on appeal, by the Ld. District Judge, Rohtak, the vendee-defendant has come up in this second appeal.

The Learned Counsel for the Appellant has challenged the correctness of the concurrent finding of the Courts below on the ground that from the evidence on record no inference of the setting up of a religious or charitable institution by Dev Karan would be drawn. He farther argued that before an inference of a public trust would be drawn, a complete dedication and divestitive of the property has to be established. As there was no proof that Dev Karan ever dedicated the property in dispute to the idol set up in the dharamshala or to the general public nor he ever divested himself of its ownership, the inference drawn by the Courts below that the dharamshala was a public institution cannot be sustained In support of his contention he relied on AIR 1933 189 (Lahore) and Mahani Dasi and Others Vs. Pareshnath Thakur and Others,

There can be no dispute with the proposition of law enunciated by the Learned Counsel but on the facts of the present case it has been fully established that the dharamshala and the vacant site attached to it was dedicated by Dev Karan to the public for religious and charitable purpose. As noticed above, Dev Karan founder of the institution, applied for the purchase of the land measuring 1 bigha to the Municipal Committe for setting up a dharamshala for public use. Sanction was accorded for the sale of this land by the Commissioner on the said representation. Dev Karan then submitted plan, Exhibit P-3 in 1918 for the construction of the Dharamshala and since its construction it has been in the use of the public at large, particularly the Hindu community. From the evidence on the record it is also established that there is an idol established in one of the rooms and the people worship it. There is yet another very important piece of evidence on the record, that is, the judgment of the Insolvency Court Delhi, Ex. P8/2, which shows that the property in dispute was attached taking it to be the property to Bhagwan Chander, successor of Dev Karan, but was released being the public trust property at the instance of the Respondent The Learned Counsel for the Appellant, however, referred to the statements of the tenants in the shops attached with the dharamshala who deposed that they were paying the rent to the Appellant and argued that the income from the property was being utilised by the heirs of Dev Karan for personal use. This may be so but it only proves that the heirs are misarpropriating the income of the dharamshala and in no way is sufficient to rebut the evidence already referred to, which conclusively prods that the dharamshala was set up by Dev Karan for the use of the public. So far as the decisions relied upon the Learned Counsel are concerned, finding in all of them has been recorded on the peculiar facts of those cases. In Chandu Lal''s case (supra) there was no evidence to show that the property had been ever dedicated for public use and the Court declined to draw such an inference merely on the circumstance that the marriage parties used to be put up in the dharamshala. In Prabhal Kumar''s case (supra) there was no evidence to show that the executant of the endowment deed had divested himself of the properties and the grants had been utilised for the purpose of the trust. In Smt. Mohani Dassi''s case (supra), it was held that the mere installation of an idol without any property being dedicated to it would not prove the creation of an endowment. However, it was further observed in this very case that no formal act of dedication of property to an idol is necessary either byway of a deed or performance of ceremonies. Performance of ceremonies is only relevant to show the intention of the grantor and a dedication must be held to be complete if there is an unequivocal manifestation of the intention to create a trust. None of these decisions thus helps the Appellant on the facts of the present case. Consequently no ground has been made out to interfere with the concurrent finding of the Courts below that the said dharamshala is a public, religious and charitable institution.

The Learned Counsel for the Appellant next contended that there is no evidence to establish that the land in dispute is the same which was purchased by Dev Karan. The argument is wholly misconceived. A bare comparison with the plan, Exhibit P-3, which was submitted by Dev Karan to the Municipal Committee in the year 1918 with the present plan, Exhibit P.W. 8/6 would show that the dharamshala and the land appurtenant thereto is the same which was purchased by Dev Karan for setting up the said institution.

Lastly, it was contended that from the comparison of Exhibit P-3 and Exhibit P.W. 8/6, it is clear that the plot on the southern tide measuring north 49 feet 6 inches, south 44 feet and east and west 26 feet is beyond the area purchased by Dev Karan There is tome difference between the length of the eastern and western sides of the vacant site in the two plans but the Appellant cannot be permitted to make out a new case at this stage, on the basis of this variance that the plot in dispute on the southern side does not form part of the property of the dharamshala. No such plea was taken in the pleadings nor any claim put forward even during the course of the arguments in the courts below. On the contrary the sole dispute between the parties was whether the dharamshala Dev Karan was a public institution of charitable and religious nature or not. It was-never disputed that the plots in dispute were part of the land pur chased by Dev Karan from the Municipal Committee. The question sought to be raised being essentially a question of fact and beyond the pleadings cannot be allowed to be raised at the stage of second appeal.

In the result this appeal fails and is hereby dismissed but without any order as to costs.