Judgment:
S.K. Gangele, J.
1. This first appeal has been filed under Section 96 of the Code of Civil Procedure by the appellants-plaintiffs against the judgment and decree dated 15-10-2004, passed by the First Additional District Judge, Gwalior in Civil Suit No. 03-A/2001.
2. The plaintiffs filed a suit in representative capacity under Order 1 Rule 8 of Civil Procedure Code for declaration and permanent injunction. They pleaded that the temple of Hanumanji, Shivji, Parvatiji, Ganeshji, Nadiyaji and Bharonji, is situated at Indore Balon Ka Bada, Dal Bazar, Lashkar, Gwalior. The temple is hundred years old. An open space is also available around the temple. Number of persons used to come to worship at the temple. However, the defendant is trying to raise a construction over the place of temple. He is also trying to destroy the temple and convert the place of temple in a private property. The defendant No. 1, has an intention to construct a godown in place of temple. Initially, Rambabu Agarwal was added as defendant No. 1 and, subsequently, two other persons, namely, Mr. Balkishan and Ayodhya Mandir Trust has been added as defendants. During pendency of suit, Rameshwar Dayal, who is original plaintiff, was died and his legal representatives have been brought on record. Two persons, namely, plaintiff No. 2 and plaintiff No. 3 have also been deleted as plaintiffs. The Trial Court permitted the plaintiffs to pursue the suit under Order 1 Rule 8 of Civil Procedure Code.
3. The defendant No. 1 Rambabu Agarwal in written statement denied the pleadings of the plaintiffs. He also filed a counter claim. He pleaded that the bada was of the ownership of Ayodhya Mandir Trust, Sant Niwas Trust Indore. The aforesaid trust sold the property to Mr. Ghanshyam Das and Balkishan and thereafter the defendant purchased the property from Balkishan. Balkishan also sold some portion of property to Mr. Rameshwar Dayal. He further pleaded that the suit property is the exclusive ownership of the defendant and he has been performing puja and archana in the temple. It has specifically denied by the defendant that the Hanumanji temple is a public temple. He admitted the fact that there is a temple and he is the owner of the temple. The defendant further filed a counter claim mentioning the fact that there is a 10 ft. wide lane and on the aforesaid lane, plaintiff Rameshwar Dayal has made certain encroachment. The lane is 10 ft. x 30 ft. By way of counter claim, the defendant sought permanent injunction against the plaintiff Rameshwar Dayal that he be restrained from creating any obstruction and nuisance over 10 ft. wide lane.
4. The Trial Court after appreciation of evidence dismissed the suit after holding that the plaintiffs failed to prove that the temple mentioned in the plaint is a public temple. The Trial Court further held that the defendant purchased the suit property by a registered sale deed from a public trust. It has also held by the Trial Court that the suit filed by the plaintiffs is maintainable in representative character and the Court has jurisdiction to try the suit.
5. Shri K.N. Gupta, learned Senior Counsel for the appellants-plaintiffs has submitted that the findings recorded by the Trial Court that the temple mentioned in the plaint is not a public temple are perverse. The temple is in existence for the last 100 years. It was a property of public trust created for religious purpose, hence, the trust or any other person has no right to sell the temple. He further submitted that the defendant No. 1 has been trying to destroy the temple, which is against the law. In support of his contentions, learned Senior Counsel relied on the following judgments:
(i) Kundan Lal Rallaram v. Custodian, Evacuee Property, Bombay AIR 1961 SC 1316;
(ii) Pannu v. Devi Prashad 1963 JLJ 113 (CN 26);
(iii) Premchand v. Laxmichand 1970 JLJ 763;
(iv) Sodhi Transport Co. and Ors. v. Stale of U.P. and Ors. : (1986) 2 SCC 486; and
(v) Anil Rishi v. Gurbaksh Singh : AIR 2006 SC 1971.
6. Contrary to this, Shri H.D. Gupta, learned Senior Counsel on behalf of defendants-respondents has submitted that the defendant No. 1 purchased the suit property vide a registered sale deed from a public trust. The trust obtained permission to sell the property from the Registrar. A small temple has been situated within the place and it is not a public temple. The defendant has a right to make construction over the land which he purchased by a registered sale deed from a valid owner. Learned Senior Counsel further submitted that the original plaintiff Mr. Rameshwar Dayal has made certain encroachment over a 10 ft. wide road, which is arbitrary and illegal, hence, the counter claim filed by the defendant No. 1 is liable to be decreed. In support of his contentions, learned Senior Counsel relied on the following judgments:
(i) The Bihar State Board of Religious Trust (Patna) v. Mahanth Sri Biseshwar Das : AIR 1971 SC 2057;
(ii) Radhakanta Deb and Anr. v. The Commissioner of Hindu Religious Endowments, Orissa : AIR 1981 SC 798; and
(iii) Haribhanu Maharaj of Baroda v. Charity Commissioner, Ahmedabad : AIR 1986 SC 2139.
7. Undisputed facts of the case are that initially Seth Prahlad Das was the owner of the suit property and other property. He executed a trust deed dated 11-2-1999 because Seth family had a temple at Ayodhya and some charitable institutions at Begampura and Deedwana and for the purpose of management of the institutions, Seth Prahlad Das created a trust on 11-2-1999. A bada named as 'Indore Balon Ka Bada', Dal Bazar, Lashkar, Gwalior was the trust property. There were many residential houses and shops in the bada. The trustees of defendant No. 3- trust submitted an application before the Registrar of Public Trust, Indore for the purpose of sanction of sell of the bada. The Registrar Public Trust, Indore; vide order dated 19-4-1965 (Exh. P-8), granted permission to the trust to sell the bada. It has been mentioned in the order that the property could not be sold in a consideration of less than one lakh rupees. It has further been mentioned in the order that the object of sell of the property is to fulfill objectives of the trust. After getting permission, the trust sold the property in favour of Ghanshyam Das and Balkishan Das vide registered sale deed (Exh. D-7). Thereafter, Balkishan and Ghanshyam Das sold the property in parts to different persons. The defendant No. 1 purchased the suit property vide registered sale deed (Exh. D-6).
8. On behalf of the plaintiffs, Mr. Rajkishore Parashar (P. W. 1) in his evidence stated that he had been going to have a darshan of the temple of Hanumanji for the last 10-12 years. The temple is a public temple and there are deities of Hanumanji, Shivji, Parvatiji, Ganeshji, Nadiyaji and Bharonji and two banyan trees are also standing. The temple is of 100 years old and it has been constructed in an area 5 ft. x 5 ft. and there is also a platform around the temple for the purpose of a holy round (parikrama) and a passage of 10 ft. Another witness Mr. Harvilas Agarwal (P.W. 2) in his statement stated that he was working earlier in J.C. Mills, Gwalior and mother of plaintiff-Rameshwar Dayal is his aunt (father's sister). There is a temple named as Hanumanji Temple and it is hundred years old. He used to come to worship the deities. Mr. Rajendra Prasad Agarwal (P.W. 3) in his statement stated that the temple is situated at Indore Balon Ka Bada, Dal Bazar, Lashkar, Gwalior and he had been going to have a darshan of the temple for the last 26-27 years. A number of annual festivals of the deities Shivji, Hanumanji etc. have been celebrated each year in the temple. The defendant purchased the property of the temple, which is illegal and he had been trying to construct a godown over the place of temple. He further stated that his real sister Sushila Devi has been residing in one place of the bada and Rameshwar Dayal is his real brother-in-law. Same facts have been stated by another witness Mr. Kishanlal (P.W. 6), who was working at the relevant time as Sanitary Inspector (Safai Daroga) in Municipal Council, Gwalior. He specifically stated that the suit temple is a public temple and in the aforesaid temple number of festivals including Hanuman Jayanti etc. had been organised in each and every year. Mr. Madhav Prasad Sharma (P.W. 5) stated that he had been going to have a darshan since December, 1999, the temple is hundred years old and there are two banyan trees near the temple and a number of annual festivals have been celebrated in the temple.
9. Defendant No. 1-Ram Babu Agarwal in his statement stated that the plaintiffs and the witnesses are near relatives. He stated that he purchased the suit property from Balkishan by a registered sale deed dated 11 -7-1978 (Exh. P-5) and the map of the property is Exh. P-5-A. Mr. Subhkaran Prahlad Das was the owner of the property including bada and he gifted the property and created a trust for the purpose of maintenance of temple named as Ayodhya Mandir Sant Niwas Trust, Indore. The trust entered into an agreement to sell the property in favour of Laduram Jagannath Prasad in the year 1965. Thereafter, the trust obtained permission to sell the property from the Registrar and, subsequently, the trust sold the property in favour of Ghanshyam Das and Balkishan Das by registered sale deed (Exh. D-7). The map of the property which was sold has been filed as Exh. D/7-A and thereafter Ghanshyam Das and Balkishan Das sold the property (bada) in part to number of persons. One of the property was purchased by Sushila Devi, wife of Rameshwar Dayal and there is a 10 ft. wide road. Sushila Devi purchased the property vide sale deed dated 25-1-1978 (Exh. D-9). Smt. Bhagwati Devi, mother of Rameshwar Dayal also purchased some property on 26-12-1983 from Balkishan Das vide Exh. D-6. He further stated that he had got possession of the property in a compromise from Ishwari Prasad because earlier Radhabai, Ishwari Prasad, Laxman Prasad and Sushila Devi were in possession over the suit property. He further stated that no temple has been mentioned in the registered sale deed. There is no public temple exists. However, there is a temple, a small temple of Hanumanji over the suit land and one banyan tree, and in the place, other deities, like Hanumanji, Shivji, Parvatiji, Ganeshji, Nadiyaji and Bharonji are also situated. He further stated that area of the plot is 35 x 25 ft. Nobody has been examined on behalf of the defendant except the defendant No. 1.
10. From the facts and pleadings of the defendant as well as oral and documentary evidence on record, it is clear that the temple is situated over the suit premises and in the temple there are idols of deities like Hanumanji, Shivji, Parvatiji, Ganeshji, Nadiyaji and Bharonji. The defendant did not plead any evidence that when the deities had been installed in the place. It is also a fact that Seth Prahlad Das created a public trust in the year 1908 and the property of bada had been given to the public trust and thereafter the trust sold the property in favour of Balkishan and Prahlad Das and the defendant purchased the plot from Balkishan vide registered sale deed 11-7-1978 (Exh. P-5). In the aforesaid sale deed, it has been mentioned that over one portion of the land, an idol of Hanumanji is situated. From the aforesaid documents (Exh. P-5), which has been admitted by the defendant, it is clear that at the time of sale of the property, an idol of Hanumanji was there. Balkishan had purchased the land from trust-defendant No. 3 and the trust was created by Seth Prahlad Das in the year 1902. There is no evidence on record that the trust installed any idol or the idol of Hanumanji, hence, it is to be presumed that the idol of Hanumanji and other deities have been in the place before the year 1908. In such circumstances, the evidence produced by the plaintiffs and the pleadings pleaded in the plaint that there is a temple of Hanumanji for the last 100 years is correct. When it has been established from the document and oral evidence that the deities have been in place for a quite long time, then, the burden was on the defendant to show that when the deities were installed by a private person. The onus of an issue in a civil case is not permanently fixed but is constantly fluctuating. The Hon'ble Supreme Court in the case of Kundan Lal Rallaram v. Custodian, Evacuee Property reported in AIR 1961 SC 1316 : V 48 C 241, has held as under with regard to 'burden of proof':
The phrase 'burden of proof' has two meanings- One, the burden of proof as a matter of law and pleading and the other the burden of establishing a case; the former is fixed as a question of law on the basis of the pleadings and is unchanged during the entire trial, whereas the latter is not constant but shifts as soon as a party adduces sufficient evidence to raise a presumption in his favour. The evidence required to shift the burden need not necessarily be direct evidence, i.e., oral or documentary evidence or admissions made by opposite party; it may comprise circumstantial evidence of presumptions of law or fact.
11. The Hon'ble Supreme Court further in the case of Anil Rishi v. Gurbaksh Singh reported in : AIR 2006 SC 1971, has held as under with regard to burden of proof:
The initial burden of proof would be on the plaintiff in view of Section 101. The elementary rule Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. Under Section 111 when one party stands to other in a position of active confidence the burden proving good faith would be on the party who is in a position of active confidence. But before such a finding is arrived at, the averments as regard alleged fiduciary relationship must be established before a presumption of undue influence against a person in position of active confidence is drawn. The factum of active confidence should also be established.
12. From the above principle of law, it is clear that initially the plaintiffs have discharged their burden to prove that there is a temple situated as mentioned in the plaint for the last 100 years and if any person has constructed the temple as a private temple or installed deities, then the burden was on the defendants to prove the same. The defendants have failed to prove to discharge the burden, hence, it has to be held that there is a temple for the last 100 years of Hanumanji and other deities like Shivji, Parvatiji, Ganeshji, Nadiyaji and Bharonji.
13. The next question is that whether it is a public temple or a private temple. It is an admitted fact that the temple of the deities are situated in an open place and there is also an open space. Near the place, there are two rooms. Earlier, Mr. Ishwari Prasad and his family members had been residing in the rooms. He was a pujari of the temple. The fact is clear from the written statement filed by Radhabai in the civil suit instituted by Rambabu Agarwal, defendant No. 1 with regard to eviction against Radhabai, Laxman Prasad and Ishwari Prasad. It has been mentioned in the aforesaid written statement that Ishwari Prasad had been working in the temple as pujari and after a compromise the defendant No. 1 got the possession of the temple along with two rooms. The Court also appointed a Commissioner Mr. Dilip Avasthi, who in his report mentioned that there is a temple of Hanumanji and two banyan trees are in the place. He also prepared a map and in the aforesaid map a temple and 10 ft. passage has also been shown between two parts of the houses.
14. From the evidence, it is clear that at the time of creation of public trust by Seth Prahlad Das. The temple was a part of the property of Seth Prahlad Das and after creation of trust, it became a part and parcel of the trust. The defendant No. 1 himself admitted that he purchased the property from public trust, hence, admittedly, the temple was of the ownership of the public trust. A Constitution Bench of the Hon'ble Supreme Court in the case of Tilkayat Shri Govindlalji Maharaj etc. v. State of Rajasthan and Ors. reported in : AIR 1963 SC 1638, has held as under with regard to fact that whether a Hindu Temple is private or public:
19. The practical modes of worship adopted by members of this cult bring out the same effect. Lord Krishna as a child is the main object of worship. His worship consists of several acts of performance every day in the prescribed order of ceremonies. These begin with the ringing of the bell in the morning and putting the Lord to bed at night. After the Lord is awakened by the ringing of the bell, there is a blowing of the conch-shell, awakening of the Lord and offering morning refreshments waving of lamps; bathing; dressing; food; leading the cows out for grazing; the mid-day meal; waving of lamps again; the evening service; the evening meal and going to bed. These rituals performed with meticulous care from day to day constitute the prescribed items of Seva which the devotees attend every day in the Vallabh Temple. In order to be able to offer Bhakti in a proper way, the members of this denomination are initiated into this cult by the performance of two rites, one is Sharana Mantropadesh and the other is Atma Nivedan. The first gives the devotee the status of a Vaishnava and the second confers upon him the status of an Adhikari entitled to pursue the path of service or devotion. At the performance of the first rite, the mantra which is repeated in the ears of the devotee is 'Shree Krishna Sharanam Mamah' and on the occasion a 'Tulsi Kanthi' is put around the neck of the devotee. At the second initiation, a religious formula is repeated, the effect of which is that the devotee treats himself and all his properties as belonging to Lord Krishna. We have already referred to the original image which Vallabha installed in the temple built in his time and the seven idols which Vithalnathji gave to his sons. These idols are technically described as 'Nidhi Swaroops'. Besides these idols, there are several other idols which are worshiped by Vaishnava devotees after they are sanctified by the Guru. It is thus, clear that believing in the paramount importance and efficacy of Bhakti, the followers of Vallabha attend the worship and services of the Nidhi Swaroops or idols from day to day in the belief that such devotional conduct would ultimately lead to their salvation.
15. The Hon'ble Supreme Court further in the case of Gedela Satchidananda Murthy (Dead) by L.Rs. v. Dy. Commissioner, Endowments Deptt., A.P. and Ors. : (2007) 5 SCC 677, quoting the earlier judgments has held as under with regard to public character of a religious place:
20. It was, therefore, clearly not a case where shastraic basis was held to be the sine qua non for the purpose of arriving at a decision that the institution in question would fall within the purview of the terms 'religious and charitable institution' or not.
21. In Dhaneshwarbuwa Guru Purushottambuwa v. Chanty Commr., this Court opined that while each case of endowment as to the character of temple would depend on the history, tradition and facts, the presence of the features enumerated therein may be held to be sufficient to hold that the same satisfies the tests which were required to be fulfilled in arriving at a decision that the temple in question was a public trust.
22. We are not, however, oblivious of the fact that only became members of the public are freely admitted to the temple, that by itself would not be sufficient to come to the conclusion that the temple was a public institution.
23. In Hari Bhanu Maharaj v. Charity Commr., upon which again Mr. Rao relied, the question as to whether the members of the public had visited the mandir as invitees and nothing more was held to be dependent upon the facts and circumstances of each case.
24. In view of the fact that members of the public could visit the temple only on payment of some amount is itself indicative of the fact that they could do so as of right. It has been found as of fact that there used to be regular visitors in the temple. They would not only pay their obeisance to the great men who had been buried there but also offer pujas at the temple. It has also been found as of fact that various types of pujas were being performed by the public at the temple on payment. Pamphlets had been issued by the plaintiffs themselves for the aforementioned purpose. The said pamphlets were marked as Exhs. B-7 and B-8.
16. The Hon'ble Supreme Court further in the case of A.A. Gopalakrishnan v. Cochin Devaswom Board and Ors. reported in : (2007) 7 SCC 482, has held as under with regard to protection and safeguarding of properties of deities and temple:
10. The properties of deities, temples and Devaswom Boards, required to be protected and safeguarded by their trustees/achakas/ shebaits/employees. Instances are many where persons entrusted with the duty of managing and safeguarding the properties of temples, deities and Devaswom Boards have usurped and misappropriated such properties by setting up false claims of ownership or tenancy, or adverse possession. This is possible only with the passive or active collusion of the authorities concerned. Such acts of 'fences eating the crops' should be dealt with sternly. The Government, members or trustees of boards/trusts, and devotees should be vigilant to prevent any such usurpation or encroachment. It is also the duty of Courts to protect and safeguard the properties of religious and charitable institutions from wrongful claims or misappropriation.
17. Learned Single Judge of this Court in the case of Idol Ganeshji Maharaj and Ors. v. J.M. Anand and Anr. reported in 1983 JLJ 248, has held as under after relying on the judgment of the Hon'ble Supreme Court, that the temple or property dedicated to the temple could not be transferred by Shebait or any other person for pecuniary consideration:
The transfer of Shebaitship would mean a delegation of duties of the transferrer and says Mukherjee, it would contravene the very policy of the Law. Of late, the Supreme Court, in Kali Kinkar Ganguly v. Panna Banerjee : AIR 1974 SC 1932, at Page 1936, Paragraph 25), has laid down that 'neither a temple nor the deities nor the Shebaiti right can be transferred by sale for pecuniary consideration. It has been further observed that such transfer by sale is void in its inception'. The property dedicated to the services of an idol is, as a rule, inalienable. But exceptions to this rule have been recognised in the interest of the deity itself.
(Emphasis supplied)
18. From the above principle of law laid down by the Hon'ble Supreme Court and evidence on record of the case, it is clear that the temple is in place for the last 100 years. It was a part of public trust and subsequently, without mentioning the facts, the land has been sold to the defendant No. 1 by the trust. From the evidence on record, it is clear that number of persons had been worshipping the deities, in such circumstances, it is a public temple.
19. From the evidence on record, it is also clear that the temple is situated over area of 5 ft. x 5 ft. and there is also an open place, i.e., chabutara. Apart from this, the worshippers have a right to worship in the temple by using a passage and as per the principle of law laid down by the learned Single Judge, relying on the judgment of the Hon'ble Supreme Court, the temple could not be sold, hence, the trust had no right to sell the temple to the defendant No. 1, neither the defendant No. 1 has a right to raise any construction over the area of temple. Upto that extent, the suit filed by the plaintiffs is liable to be decreed. The Trial Court has committed an error of law in holding that the plaintiffs have failed to prove that there is a public temple and there is an open place adjoining to the temple and the public trust had no right to sell the aforesaid place.
20. The learned Senior Counsel also argued that the plaintiffs have no right to file the suit in representative capacity, however, looking to the evidence on record, in my opinion, the Trial Court has rightly held that the suit filed by the plaintiffs in representative capacity is maintainable.
21. With regard to cross-objection filed by the defendant No. 2, it is clear from the map and the documents filed along with the plaint and the report of the Commissioner that there is a 10 ft. wide passage available, certainly, over the above passage, the defendant No. 1 or his legal representatives have no right to create any construction. Learned Senior Counsel for the appellants has given undertaking that the appellants will not make any construction over the passage. In view of this, it is not necessary to pass any order on cross-objection.
22. Consequently, the appeal filed by the appellants is partly allowed. It is hereby declared that the temple and an open place, i.e., chabutara around temple as per the plaint map, is a public temple and the defendants have no right to raise any construction or obstruct worship in the temple. Upto the above extent, the sale deed executed by the defendant No. 3-Trust in favour of defendant No. 1, dated 11-7-1978, Exh. P-5 is void. The defendant No. 1 is restrained from interfering persons-worshippers in the temple. It is hereby clarified that with regard to rest of the area the sale deed (Exh. P-5), the land which was purchased by the defendant No. 1 from the trust, is as per law.
23. Looking to the aforesaid facts of the case, parties are directed to bear their own cost.