Patna High Court
Case Details
IN THE HIGH COURT OF JUDICATURE AT PATNA Second Appeal No.553 of 2011 ====================================================== Ayodhya Prasad son of Late Jai Kumar Sah, Resident of Village-Dhanupara P.S. Ara(T), District-Bhojpur. Plaintiff-Appellant.... Appellant 1. Panwarti Devi wife of Radha Kushun Sah, resident of village- Versus Belwaria, P.S. Bihia, District Bhojpur. 2. Lilawati Devi, s/o Devendra Sah, village + P.O. Maner, P.S. Maner, District Patna. 3. Kalawati Devi, w/o Mahendra Sah, resident of Mohalla-Lakhnath Bazar, Danapur, P.O. + P.S. Danapur, District-Patna 4. Gulsan Chawala son of Mohan Lal Chawala, resident of mohalla-Jail Road, Ara, P.O. + P.S. Ara Town, District-Bhojpur. 5. Chairman, Hindu Religious Trust Board, Bihar, Patna. 6. Chandrama Prasad, son of Baldeo Prasad Resident of Mohalla-Pakari, Ara, P.O. Ara P.S. Ara-Nawadah, District-Bhojpur 7. Awadh Kumar Tiwary son of Sri Bamdeo Tiwary (Pujari) resident of village-Barham, at present residing in Mohalla-Maula Bag, Ara, P.O. Para, P.S. Ara-Nawadah, District-Bhojpur. 8. Karnal Singh son of Udai Singh, resident of Mohalla-Jail Road, Ara. …Defendant 1st set-Respondent 1st set- Respondent 1st set P.O. + P.S. Ara Town, District-Bhojpur. 9. Abdul Gaphar son of Karamat Mian, resident of Mohalla-Milki, Ara- P.O. + P.S. Ara Town, District- Bhojpur.
Legal Reasoning
…Defendant 2nd set-Respondent 2nd set- Respondent 2nd set 10. Murtiya Sri Ram, Lakshman, Janki, Sri Mahadeo jee, Parbati jee,
Legal Reasoning
Ganesh Jee, Sri Mahabir Jee, through 11. Sudhakar Prasad Gupta son of late Madan Prasad 12. Srimati Sona Devi wife of Late Madan Prasad Both are resident of village Pakari, P.O. Pakari, P.S. Ara- Nawada, District-Bhojpur. ====================================================== Appearance : For the Appellant/s : Mr. Anil Kumar Mishra …Plaintiffs-Respondents- Respondents Mr. Akhileshwar Kumar Srivastava For the Respondent/s : ====================================================== CORAM: HONOURABLE MR. JUSTICE CHAKRADHARI SHARAN SINGH ORAL ORDER 8 14-03-2013 Heard learned counsel for the appellant. 2. The present Second Appeal filed under Section 100 of the Code of Civil Procedure (hereinafter referred to as the „Code‟) has 2 Patna High Court SA No.553 of 2011 (8) dt.14-03-2013 2 / 8 been placed before me for hearing under Order 41 Rule 11 of the Code. The appellant is aggrieved by the judgment and decree dated 30.06.2011 and 19.07.2011 respectively passed in Title Appeal No. 93/89 by learned Additional District Judge (F.T.C. IInd), Ara whereby he has affirmed the judgment and decree dated 04.10.1983 and 18.11.1989 respectively passed in T.S. No. 21/82 by the learned Sub-Judge Vth, Ara. By the said judgment and decree dated 04.10.1983 and 18.11.1989, learned Trial Court had decreed the suit in part in favour of the plaintiff. 3. The plaintiff is the appellant before this Court in present Second Appeal. The suit was filed for declaration that the lease deed dated 18.12.1981 executed by defendant No. 1 Sita Ram Sah in favour of the defendant No. 2 Gulsan Chawala was illegal, void and without jurisdiction and also for removal of defendant No. 1 from Mutwalliship and defendant No. 4 from Panches and in stead it be directed that the plaintiff No. 1 be appointed as Mutwalli for looking after the trust property. As per the plaintiff‟s case one, Jagan Mistri had constructed a temple on Survey Plot No. 320 and 321 on Ara-Buxar Road over an area of 57 decimals of land and installed the deities namely, Ram, Lakshman, Janki, Mahabir Jee, Parbati Jee, Ganesh Jee for Puja to be offered by general public. The said temple is said to have been registered as public trust and 3 Patna High Court SA No.553 of 2011 (8) dt.14-03-2013 3 / 8 the Trust Board used to realize tax. It was also asserted that for the purpose of performing Puja and Raj Bhog of deities, Jagan Mistri had dedicated some property as detailed in schedule-1 of the plaint by executing and registering a trust deed dated 14.12.1936. For looking after the temple he appointed five Panches including Chandrma Singh, the defendant No. 1 in the suit. 4. As per the terms of the deed, Jagan Mistri, the founder of the temple was Mutwalli and after his death his two wives remained as Mutwalli and after the death of the two wives his grandson was to be appointed as Mutwalli. However, he died during the life time of his maternal grandmother. After the death of the wives of Jagan Mistri, this defendant No. 1 became Mutwalli. According to the plaintiff, as per the terms of the deed, Mutwalli had no right to transfer and occupy the property of the deity and the Mutwalli was also under obligation to give account to the Punches and was required to perform his duties, according to the advice of the Panches. 5. The dispute arose as the plaintiff realized that the defendant No. 1 was not properly looking after the temple nor was he giving account to the Panches. He used to realize rent out of the trust property and misappropriate the amount so realized for 4 Patna High Court SA No.553 of 2011 (8) dt.14-03-2013 4 / 8 his own use. 6. It was further alleged that against the terms of the trust deed, defendant No. 1 executed a registered deed of lease for ninety nine years with respect to the trust property in favour of the defendant for a sum of Rs. 15 thousand which according to the plaintiff was not for the benefit of deities, and was against the terms and conditions of the deed of trust. 7. Defendants contested the suit. Defendants No. 1 and 2 filed their written statement. Defendant No. 3, 4 and 5 did not file any written statement nor did they adduce any evidence before the Trial Court. The defendant No. 2 claimed that the temple built by Jagan Mistri was not a public temple rather a purely private trust and public had no right to enter into the temple and offer Puja, as a mater of right. He contended that there was no contribution from the public for construction of temple and installation of the deities and public were never beneficiaries of temple and they had got no access in the management of the trust property. Defendant No. 1 claimed that by virtue of deed of endowment, he was made Mutwalli and on this strength the defendant No. 1 pleaded that the trust in question was private in nature. On the basis of the rival pleadings of the respective parties learned Trial Court framed altogether eight issues including the following four:- 5 Patna High Court SA No.553 of 2011 (8) dt.14-03-2013 5 / 8 “ IV. Whether the trust in question is a private or public trust? V. Whether deed of lease executed by defendant No. 1 in favour of defendant No.2 was illegal, void and without jurisdiction? VI. Whether the defendant No. 1 was liable from removal from Mutwalliship? VII. Whether the plaintiff No. 1 can be appointed Mutawalli for the trust property?” 8. From the orders of the Court below it appears that learned Trial Court on analysis and its appreciation of evidence and material available in course of the trial, while deciding issue No. V came to a finding that there was nothing which was worth evidence to the effect that consideration amount of rupees fifteen thousand was paid by the defendant in consideration of the lease. Learned Trial Court came to a conclusive finding that the lease in question executed by Sita Ram Sah in favour of the defendant No. 2 was void, inoperative and without jurisdiction. 9. It is to be noted at this point itself that the plaintiffs‟ claim against the execution of lease deed was sustained by the Trial court against which finding, no appeal was preferred by any of the parties. 10. Dealing with issue No. VI and VII, Learned Trial Court came to the finding that plaintiff No. 1 was not entitled to be appointed as Mutwalli of the trust property nor the defendant 6 Patna High Court SA No.553 of 2011 (8) dt.14-03-2013 6 / 8 liable for removal from Mutwalliship. 11. The plaintiffs thereafter, having succeeded partly in the title suit, preferred First Appeal vide Title Appeal No. 93/89 registered in the file of the Additional District Judge (F.T.C. II), Ara, Bhojpur. Learned First Appellate Court on the basis of the appraisal of evidence available on record considered the relevant issues particularly issues No. 4, 5, 6 and 7. After having done so learned First Appellate Court concurred with the finding arrived at by the Learned Trial Court and came to the finding that none of the claimants were competent to be Mutwalli of the said trust and dismissed the appeal. 12. Mr. Mishra appearing on behalf of the appellant has vehemently submitted that the claim of the plaintiffs No. 2 and 3 was based on registered document dated 23.03.1993 whereas the case of the present appellant was based on the memorandum of agreement dated 09.02.1976 which was duly executed by defendant No. 1 Sita Ram Sah (Mutwalli) in favour of the appellant. 13. Learned counsel has submitted that the First Appellate Court as well as the Trial Court committed gross error in not considering in correct perspective, the claim of the appellant to continue as Mutwalli. 7 Patna High Court SA No.553 of 2011 (8) dt.14-03-2013 7 / 8 14. On the basis of this submission Mr. Mishra contends that the appeal involves substantial question of law inasmuch as the Courts below failed to duly interpret the terms of endowment deed as well as the evidence led on behalf of the appellant. He submits accordingly that the findings of the Courts below are contrary to the evidence and therefore, are perverse. 15. I have gone through the orders of the Courts below. The Courts below, before reaching to their findings have considered the evidence led on behalf of the parties, both oral and documentary and have been referred to in judgments itself. Mr. Mishra has not pointed out any finding of the Courts below which according to him is either contrary to the evidence or without any evidence available before the Courts below. 16. The dispute before the First Appellate Court was confined to rival claim between the parties relating to appointment as Mutwalli. Both the Courts have discussed this aspect in details. Learned First Appellate Court in the judgment under appeal while discussing this aspect found that none of the claimants were found competent to be a Mutwalli of the said trust property and the persons had coveted eyes upon the trust properties. In peculiar circumstances, the learned First Appellate Court transmitted a copy of the judgment to District Judge, Bhojpur to look into the 8 Patna High Court SA No.553 of 2011 (8) dt.14-03-2013 8 / 8 matter of Mutwalliship in respect of the terms and conditions and endowment deed of 1936. 17. The proposition needs no reiteration that jurisdiction of this Court in exercise of power under Section 100 of the Civil Procedure Code is limited while interfering with the concurrent findings of the facts of the Courts below. Such findings can be interfered only when they are found to be perverse and contrary to the evidence available on record or based on no evidence. 18. It can also interfere if it involves any other substantial question of law which is wrongly been decided by the Courts below leading to error of judgment. I do not find the Second Appeal merits admission as none of the ingredients as noted above is available in the present appeal and is, accordingly, dismissed. 19. Let the lower Courts records be returned to the Courts below. Saif/- (Chakradhari Sharan Singh, J.)