Chairman,Bd.Of Trustee Sr.R.M.J, A.P. vs S. Rajyalaxmi (Dead)

CHAIRMAN, BOARD OF TRUSTEE, …APPELLANT(s) SRI RAM MANDIR JAGTIAL KARIMNAGAR DISTRICT, A.P

VERSUS

S. RAJYALAXMI (DEAD) & ORS. …RESPONDENT(S)

JUDGMENT

N.V. RAMANA, J.

1. The present appeal arises out of the impugned judgment dated

18th November 2006, passed by the High Court of Judicature at

Hyderabad in Appeal Suit No. 1964 of 1993 wherein the High

Court allowed the appeal preferred by the respondents and set Signature Not Verified Digitally signed by

aside the order of the Subordinate Judge in O.S. No.69 of 1987, SATISH KUMAR YADAV Date: 2018.12.10 14:54:15 IST Reason:

thereby decreeing the suit in favour of the respondents­plaintiffs.

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2. A brief reference to the facts may be necessary for the disposal of

the present case. The original plaintiff no.1 (predecessor­in­

interest of respondent nos. 1 to 6 herein) and original plaintiff no.2

(respondent no.7 herein) preferred a suit against the defendants

(appellant and respondent no.8,9 and 10 herein) seeking a

declaration that they are the owners of the suit schedule ‘A’ house

bearing H. No. 5­6­69 (old), 6­1­7 (old), reassigned new nos. 6­1­

81 and 6­1­81/1 situated at Brahminwadi, Jagtial. The original

plaintiffs had also prayed for a declaration that the suit schedule

‘B’ properties are not in existence and the said properties do not

belong to the temple. Lastly, they also sought a consequential

relief of permanent injunction against the defendants from

interfering with the peaceful possession and enjoyment of the suit

property.

3. The respondents­plaintiffs claimed to be the owners of the suit

schedule “A” house and further contended that they have been

residing in the suit property since the time of their ancestors.

Hence it is recorded in their name and they have been paying

taxes to the municipality with respect to the same. A Ram

Mandir, situated to the west of the suit property bearing H.Nos.5­

6­70 (old) & 6­1­8 (old) corresponding to H.No.6­1­82 (new), 2 which is shown as Endowments property by the Endowments

department. Plaintiff no.1 has stated that the eastern and

southern boundaries of the temple are shown to be the house of

the plaintiffs. The plaintiffs also brought to the notice of the court,

the permission dated 14.10.1977, granted in their favour by the

municipality, for re­roofing. The original plaintiff no.1 and plaintiff

no.2 effectuated an oral partition of the suit schedule ‘A’ property

on 27.6.1983.

4. The cause of action in the present suit arose when respondent

no.9 (defendant no.2­ Deputy Commissioner of Endowments

Department) allegedly passed an ex­parte order on 24.10.1986

declaring the suit schedule ‘A’ house and movable properties

shown in schedule ‘B’ and other properties belonged to the Ram

Mandir, Jagtial in O.A. No.70 of 1985. Pursuant to the same, the

appellant (defendant no.4­Chairman Board of Trustee Sri Ram

Mandir) filed a Petition in the court of Judicial Magistrate, under

Section 93(2) of A.P. Charitable and Hindu Religious Institutions

and Endowments Act 1966 (hereinafter referred to as “the Act”)

for the delivery of possession of suit schedule ‘A’ and the suit

schedule ‘B’ properties alongside other properties of the Ram

Mandir in Cr. M. P No. 173 of 1987.

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5. The respondents­plaintiffs, apprehending abrupt interference in

possession and enjoyment of the suit property, preferred this suit

for declaration of title and perpetual injunction concerning suit

schedule ‘A’ and ‘B’ properties in O.S. no.69 of 1987.

6. The appellant (defendant no.4) resisted the suit on multiple

grounds. Although the appellant (defendant no.4) admitted that

the ancestors of the plaintiffs were performing “Annasatram” at

the Ram Mandir, he particularly denied that the ancestors of the

plaintiffs had constructed the suit schedule ‘A’ house about 100

years back along with H. No. 6­2­21. The suit schedule ‘A’ house

was constructed from the funds donated by the devotees. It was

further alleged that the plaintiff no.1 had filed O.A no.2 of 1973

under Section 77 of the Act before the Deputy Commissioner

Endowments Department Hyderabad (defendant no.2) for

declaration that the Ram Mandir is not an endowment property,

but the same was dismissed by the Deputy Commissioner vide

order dated 26.12.1976. The Deputy Commissioner held that the

temple is a public institution which is registered and entered in

the book of endowments. Aggrieved, the plaintiff no.1 had

preferred O.S. no.134 of 1977 under Section 78 of the Act,

seeking to set aside the earlier order passed by the Deputy 4 Commissioner. This suit was also dismissed on 19.08.1981 and

has now attained finality. However, the plaintiffs being the priests

got the suit property mutated in their favour during the pendency

of the proceeding. Since, plaintiff no.1 was the pujari and was

looking after the affairs of the temple, he misrepresented the

matter before the Assistant Commissioner of the Endowments

Department (defendant no.3) at the time of preparing the list of

properties of the Ram Mandir and got his name illegally recorded.

The plaintiff no.1 had also concocted several documents, such as

municipal permission for re­roofing. Further, all the mutations

and entries made or done in the municipality are in his capacity

of being a Pujari and custodian of the temple, and not as the

owner of the property. The appellant further submitted that the

Schedule B properties are in existence and are in the custody of

the plaintiff no.1 itself, who supressed this fact. Lastly, the

appellant, submitted that the plaintiffs have exhausted all

remedies and have filed the suit to prolong the litigation and

hence is liable to be dismissed.

7. The trial court, taking into consideration the aforesaid

submissions of the parties and the dispute in the present case,

framed the following issues:

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i. Whether the plaintiffs are entitled for the declaration that the suit property are belonging to them and the schedule “B” properties are not in existence and whether they are not the properties of the Ram Mandir? ii. Whether the plaintiffs are entitled for the permanent injunction?

iii. Whether the suit is barred by the res judicata?

iv. Whether the court fee paid is not correct? v. To what relief?

8. The trial court, after perusing both oral and documentary

evidence on record, dismissed the suit preferred by the

respondents­plaintiffs. The trial court held that the instant suit is

not barred under the principle of res­judicata, as the earlier suit

in O.S. No. 134 of 1977 was dismissed only for the default of the

plaintiff no.1. However, as the respondents­plaintiffs failed to

prove the source of their title they will not be entitled to claim the

relief of permanent injunction.

9. Aggrieved by the aforesaid dismissal of the suit, the respondents­

plaintiffs preferred an appeal before the High Court in Appeal

Suit no. 1964 of 1993. The High Court set aside the order of the

trial court stating that the same was passed without considering

the facts and law in the correct perspective. Thereby, the High

Court vide order dated 18.11.2006 allowed the appeal preferred

by the respondents­plaintiffs and decreed the suit in their favour

by placing reliance on the documentary and oral evidence placed 6 on record. The High Court observed that, the alleged suit

property was not included in the book of endowments, moreover,

the plaintiffs have been paying taxes in regard to the suit

property in their name. Therefore, the defendants in the guise of

a certificate cannot claim the suit premises. Aggrieved, by the

aforesaid order of the High Court decreeing the suit in favour of

the respondents­plaintiffs, the appellant (defendant no.4) has

preferred the present appeal.

10. Heard the learned counsels for both the parties.

11. The counsel on behalf of the appellant (defendant no.4) submitted

that the High Court gravely erred in decreeing the suit in favour

of the respondents­plaintiffs by merely relying on the entry in the

book of endowments as to the boundaries. Further, the counsel

averred that, the plaintiff no.1 manipulated the record showing

himself to be the owner of the suit property, whereas he was a

pujari acting as a custodian of the temple. Lastly, the counsel

rested his argument by stating that since the certificate issued by

the Deputy Commissioner in O.A. No. 70 of 1985 is still valid, the

plaintiffs are not entitled to a decree restraining the defendants

from dispossessing them from Schedule ‘A’ property and

recovering Schedule ‘B’ property.

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12. On the contrary the counsel on behalf of the respondents­

plaintiffs submitted that, the suit property was never recorded as

an endowment. On the contrary, the suit property was earlier

recorded in the name of the ancestors of the plaintiffs and now it

devolves in the name of plaintiffs. The permission granted by the

municipality on 14.10.1977, to construct the re­roofing

strengthens the presumption in their favour. Therefore, the High

Court was correct to decree the suit in their favour by relying on

the documentary and oral evidence placed on record.

13. At the outset it is pertinent to peruse few significant evidences

adduced by both the parties.

14. The plaintiffs had examined P.W.3 (Purohith) to prove that the

suit property was partitioned in the year 1914 vide Arbitration

Award dated 21.12.1914. But this document was never placed on

record in the earlier rounds of litigation. On the contrary, plaintiff

no.1 in the earlier litigation in O.A. No. 2 of 1973 had stated that,

the suit property was not a Mandir but a house which was built

by his father after obtaining due permission from the local tehsil

in 1927. The aforesaid contradiction draws suspicion as to the

credibility of the witness, as regards to the building of the suit

8 house and temple in 1927 and fact of partition pursuant to the

arbitration agreement in 1914, which are inconsistent.

15. D.W.2, who was once acting as the fit person on behalf of the

trust of Ram Mandir stated that, even the suit schedule ‘A’

property was a part of the endowment property.

16. D.W.3, further clarified the status of the suit schedule ‘A’

property by stating that it was used as lodging by the pilgrims

and pujaris, it was also used to cook food for distribution. D.W.3

also contended that, the name of the plaintiffs got recorded as

the owners as they were the pujaris of the temple.

17. The plaintiffs in order to substantiate their claims furthers placed

on record documentary evidences comprising of permissions

granted by the municipality, property tax assessment papers, tax

receipts and extract of the Book of Endowments of Ram Mandir.

After perusing evidence on record, we observe that, the

respondents­plaintiffs in order to prove their title has relied upon

several permissions of the municipality and tax receipts to prove

his title. But while, the aforesaid documents might imply

possession but they cannot be relied to confer title upon the

holder. Further, the respondents­plaintiffs have strongly relied

upon the book of endowments as maintained by the Endowment 9 Department which shows the boundaries of the temple. In any

case, this document alone is not sufficient to claim the title over

the suit premises as it was only intended to demarcate the temple

premises.

18. On the contrary, the appellant­defendant no.4 has put forth the

earlier order dated 26.12.1976 passed by the Deputy

Commissioner in O.A. No. 2 in 1973, involving the same suit

property. It was categorically held therein, that the suit property is

related to the temple, and the plaintiff no.1 is staying therein to

perform his duty. The earlier order also stated that, the suit

property was originally granted as Inam to the forefathers of the

plaintiffs for the conducting pooja and to feed the brahmins. In the

aforesaid order, it also noted that, the plaintiff had removed the

idols from the suit temple to meet his personal needs. Aggrieved,

by the aforementioned order in O.A. No. 2 in 1973, plaintiff no.1

thereafter had filed O.S. No.134/77, before the Chief Judge, City

Civil Court which came to be dismissed on 19.08.1981 for default,

hence has attained finality. Therefore, the present suit involving

the same property seeking similar relief as O.S. No.134/77 is

barred by time. However, the defence has also clearly averred that

since the plaintiffs and their forefathers were working as pujaris in 10 the Ram Temple, the endowment department in order to

demarcate the Ram Mandir itself, mentioned the suit property as

the adjoining premises. Keeping in view the aforesaid facts and

circumstances, the plaintiffs have failed to produce any evidence

to counter the case put forth by the appellant­defendant no.4.

19. It is an established position of law that, the burden to prove

ownership over the suit property is on the plaintiff. (See

Corporation of City of Bangalore vs. Zulekha Bi and Ors.

(2008) 11 SCC 306). This court in the case of Parimal vs. Veena

(2011) 3 SCC 545, held that:

19. The provisions of Section 101 of the Evidence Act provide that the burden of proof of the facts rests on the party who substantially asserts it and not on the party who denies it. In fact, burden of proof means that a party has to prove an allegation before he is entitled to a judgment in his favour. Section 103 provides that burden of proof as to any particular fact lies on that person who wishes the court to believe in its existence, unless it is provided by any special law that the proof of that fact shall lie on any particular person. The provision of Section 103 amplifies the general rule of Section 101 that the burden of proof lies on the person who asserts the affirmative of the facts in issue.

(emphasis supplied)

20. In the present case, the respondents­plaintiffs failed to discharge

their burden of proof by being unable to furnish necessary 11 documentary and oral evidence to prove their claim. But, the

High Court without appreciating the aforesaid evidences and

claims made by the appellant (defendant no.4), decreed the suit

in favour of the respondents­plaintiffs by solely relying on the

entry made in the book of endowments department stating the

boundaries of the temple. The aforesaid judgment of the High

Court is untenable in law as it is based on erroneous

appreciation of evidence.

21. In light of the aforesaid observations we set aside the judgment of

the High Court decreeing the suit in favour of respondents­

plaintiffs in the absence of any evidence to substantiate their

claim.

22. Resultantly, we restore the order passed by the Subordinate

Judge, Jagtial in O.S 69 of 1987. The appeal is allowed, however,

without any order as to costs. Pending applications, if any, shall

also stand disposed of.

……………………………..J. (N. V. Ramana)

……………………………..J. (Mohan M. Shantanagoudar) NEW DELHI, DECEMBER 10, 2018.

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