Kamal Singh and another v. Amar Singh and others). The
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Reserved on 02.03.2022 Delivered on 30.03.2022 Case :- SECOND APPEAL No. - 665 of 2021 Appellant :- Kamla Nand @ Kamal Singh And Another Respondent :- Amar Singh And 8 Others Counsel for Appellant :- Bhanu Prakash Verma,Adarsh Verma Counsel for Respondent :- Dinesh Kumar Hon'ble Siddharth,J. Heard Sri Bhanu Prakash Verma, learned counsel for the appellants and Sri Dinesh Kumar, learned counsel for respondent No.1 and perused the lower court record. The second appeal has been preferred by the plaintiffs- appellants against the judgment and decree dated 13.10.2021 passed by Additional District Judge, Court No.10, Mathura, in Civil Appeal No.129 of 2018 and judgement and decree dated 25.7.2018 passed by Civil Judge (Junior Division), Mathura, in Original Suit No.74 of 1992 (Kamlanand @ Kamal Singh and another Vs. Amar Singh and others). The plaintiffs’ case before the trial court was that Ashram in dispute is situated in Sant Colony, Kaimarvan, Vrindavan, Tehsil and District Mathura, consisting of one room and Varanda, which is used for stay of Sadhu-Sant and is being used for public purposes. The Ashram is a dedicated and public religious charity. The land of the Ashram was purchased after collecting money from the public
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by defendant No.6, and his disciple, Shivanand, for an amount of Rs.10,000/- on 23.03.1985 and constructions were made from the donations of common people and Shivanand had died. The plaintiff No.2 is his disciple and also successor as per the Sanyasi Sampradaya. Plaintiff No.1 is the senior disciple of defendant No.6 and is successor of defendant No.6. namely, Govindanand @ Radhe Lal. Defendant No.6 is aged about 100 years. His senses are not in order and he is not able to see properly. Defendant No.1 is nephew of defendant No.6 in relation and has influence over defendant No.6. Defendant Nos. 2 and 3 are close to defendant No.1. Defendant No.4 is also earlier resident of village Madhani, Paragana Saidabad, District Mathura. Defendant Nos. 1 to 3 and Navratan, father of defendant No.1, took the defendant No.6, on 11.5.1989 and after giving him intoxicant in milk on 12.5.1989 got a lease of the Ashram executed in favour of the defendant No.1. The aforesaid lease is not binding on the plaintiffs. Defendant No.6 had no right to execute the same. At the time of execution of lease, the property of the Ashram was valued above Rs.50,000/-. Before executing the lease, no permission under Section 7 of Uttar Pradesh Hindu Public Religious Institutions (Prevention of Dissipation of Properties) Act, 1962, was taken from the Commissioner. By means of the aforesaid lease, no possession was transferred to the defendant No.1. The cause of action for instituting the suit arose on 04.12.1991 and on 10.01.1992 when the defendant No.1 alongwith some anti-social elements tried to dispossess the plaintiffs from the property in dispute. Defendant No.1 filed his written statement denying the pleadings of the plaint. It was stated that the owner of the disputed property was Smt. Babita Devi and others and defendant No.6 and his younger brother, Shivaram @ Shivanand, purchased the same for an amount of Rs.10,000/- on 28.8.1995 and defendant No.6 became the sole owner of the same, after the death of his brother, Shivaram @ Shivanand. Defendant No.6, Govindanand, got a room having Varanda constructed over the same from his own resources. The plaintiff No.1, Kamlanand, is a very shrewd and cunning person. Plaintiff No.2, Premwati, is also resident of some other place and is residing with plaintiff No.1 as his kept. Both are not Sadhus nor they are the disciples of defendant No.6. Since 2 of 8 defendant No.6 is alive, they have no interest in the property. Defendant No.6 is the sole owner of the property and he had every right to execute the lease in favour of the defendant No.1. Plaintiffs have no right to institute the suit and the provisions of Section 7 of Uttar Pradesh Hindu Public Religious Institutions (Prevention of Dissipation of Properties) Act, 1962, do not apply to the proceedings. Defendant Nos. 2 and 3 are not the necessary parties to the suit. The defendant Nos. 2 and 3 filed their written statement denying that they have any concern or possession over the property in dispute. Property belongs to defendant No.6 and he executed the disputed lease in favour of the defendant No.1 out of his own free will. The defendant No.1 was always residing in the aforesaid property and is still residing in the same. Defendant No.6 filed his written statement denying the pleadings of the plaint and stating that the plaintiffs have no cause of action. In case suit is decreed, he has no objection. On the basis of the pleadings of the parties the following issues were framed by the trial court:- 1. Whether the plaintiffs are entitled to get the disputed lease deed declared as void and cancelled on the basis of the pleadings in the plaint? 2. Whether the suit is under valued? 3. Whether the court fee is paid sufficient? 4. Whether this Court has no pecuniary jurisdiction to hear the suit? 5. Whether the suit is barred by defect by non-joinder of the necessary parties ? 6. Whether the parties have been wrongly joined in the suit? 3 of 8 7. Whether the suit is barred by Section 34 of the Specific Relief Act? 8. Relief? On the basis of the evidence led before the trial court, the trial court decided the issue no.1 holding that plaintiffs have failed to prove when they became disciples of defendant No.6, Govindanand and his brother Shivanand as per Dusnami Sanyasi Sampradaya. In the plaint also, there is no mention when the plaintiffs took Diksha from defendant No.6 and his brother. Court below relied upon the judgement of the Apex Court in the case of Krishna Singh Vs. Mathura Ahir and others, AIR 1980 ACC 707 (paragraph Nos. 64 and 65), wherein it was held that it is necessary to prove that a person took Sanyas. They have to prove that they have renounced their family and performed the necessary ceremonies for becoming a Sanyasi. It has further found that the plaintiffs' claim is that the suit property is the property of trust. But they have not able to prove the same by any documentary evidence. The trial court also found that there is no evidence led by the plaintiffs to prove that some intoxicating substance was administered to the defendant No.6 and the disputed lease deed was got executed under its influence when he was not in his full senses. They have also not proved that defendant No.6 was not in a fit mental and physical condition at the time of execution of lease. The trial court further found that the plaintiffs have also not been able to prove that the property in dispute was purchased from public donation. The trial court found that in the sale deed dated 21.12.1992 executed in favour of the defendant Nos. 4 and 5 defendant No.6 has stated that he has purchased the property from
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Smt. Lalita Devi from his own money. There is no mention in the sale deed that property in dispute is property of Ashram and is being used for Bajan, Kirtan, etc. The defendants have not been 4 of 8 able to produce any evidence to the contrary. Hence the trial court came to the conclusion that property in dispute was purchased by defendant No.6 and his brother, Shivanand, from their own resources and they had full right to transfer the same. The issue Nos. 2, 3, 4, 5, and 6 were decided by the order dated 10.7.2014 in favour of the plaintiffs. Issue No.7 was decided holding that suit of the plaintiffs is not barred by Section 34 of Specific Relief Act. Issue No.8 was decided holding that the plaintiffs have failed to prove their case and also possession and title over the property in dispute. They are not entitled to any relief and the suit was dismissed. The plaintiffs preferred Civil Appeal No. 229 of 2018 before the first appellate court, wherein the first appellate court framed following points of determination:- 1. Whether defendant No.6, Govindanand, and his brother, Shivanand, purchased the disputed property from public donation and constructed an Ashram dedicated to the public for the purpose of religious work? 2. Whether the plaintiffs are the legal successors of the disputed property/Ashram? 3. Whether Govindanand had validly executed the registered lease deed dated 12.5.1989 in favour of the defendant No.1 and its effect? The first appellate court recorded the findings that in the disputed property, the list of the donors was found by the Amin. The first appellate court recorded the finding that the report was called from the Amin regarding the situation of the property on spot and not for recording existence of the list of donors. It found that only on the basis of the list of the donors, without any date and year of donation, it cannot be assumed that the property in dispute 5 of 8 was purchased out of the donated money. It has considered the sale deed of the property executed by Lalita Devi in the year 1985 for sale consideration of Rs.10,000/- in favour of defendant No.6 and his brother. The first appellate court found that plaintiff No.1 in his cross-examination stated that the property in dispute is a public charitable trust, but he could not produce any documentary evidence in this regard. The second witness of prosecution, Premanand, admitted that he has no documentary evidence to prove that the disputed property is a public religious and charitable trust. The first appellate court has considered the relevant case laws and the evidence on record and has concluded that the plaintiffs have failed to prove their case and has dismissed the civil appeal and affirmed the judgment of the trial court. Learned counsel for the plaintiffs-appellants has submitted that defendant No.6 was 100 years of age and was not in a fit mental and physical condition to execute the lease deed dated 12.5.1989 in favour of defendant No.1. The evidence was led in this regard before the trial court, but it was not considered and the findings have been illegally recorded against the plaintiffs. He has submitted that courts below have adopted hyper technical approach in rejecting the suit of the plaintiffs. The finding of the court below that the defendant-appellant No.1 is not disciple of defendant No.6 is not correct. The plaintiffs are in settled possession over the property in dispute, hence their suit ought to have been decreed. The provision of Uttar Pradesh Hindu Public Religious Institutions (Preventions of Dissipation of Properties) Act, 1962, was applicable to the case, but the courts below have held otherwise. The defendant No.6 had no right to execute the disputed lease deed in favour of defendant No.1. 6 of 8 Learned counsel for the defendants-respondents has vehemently opposed the arguments advanced by the learned counsel for the plaintiffs-appellants. He has submitted that courts below have considered the arguments raised before this Court by the learned counsel for the plaintiffs-appellants and have recorded the concurrent findings of fact. Learned counsel for the plaintiffs- appellants has not been able to point out any perversity in the findings of the courts below. He has not been able to show as to which document filed in evidence or which statement of any witness has been wrongly appreciated by both courts below to prove that findings arrived on the basis of such consideration is perverse. He has submitted that no substantial question of law arises for consideration in this appeal. He has relied upon the paragraph No. 51 of the judgment of the Apex Court in the case of Gurdev Kaur and others Vs. Kaki and others, (2007) 1 Supreme Court Cases 546:- “51. Again in Santosh Hazari v. Purushottam Tiwari (deceased) by Lrs. (2001) 3 SCC 179, another three-Judge Bench of this Court correctly delineated the scope of Section 100 C.P.C.. The Court observed that an obligation is cast on the appellant to precisely state in the memorandum of appeal the substantial question of law involved in the appeal and which the appellant proposes to urge before the Court. In the said judgment, it was further mentioned that the High Court must be satisfied that a substantial question of law is involved in the case and such question has then to be formulated by the High Court. According to the Court the word substantial, as qualifying "question of law", means of having substance, essential, real, of sound worth, important or considerable. It is to be understood as something in contradistinction with technical, of no substance or consequence, or academic merely. However, it is clear that the legislature has chosen not to qualify the scope of "substantial question of law" by suffixing the words "of general importance" as has been done 7 of 8 in many other provisions such as Section 109 of the Code of Article 133(1) (a) of the Constitution.” Therefore, it is clear that learned counsel for the plaintiffs- appellants have not been able to point out any substantial question of law arising for consideration in this appeal. Both the courts below have concurrently decided in favour of the defendants- respondents and the findings recorded have not been shown to be perverse or illegal and hence no interference is called for in Judgments and decrees passed by the court below. No substantial question of law arises for consideration in this second appeal. Hence it is dismissed under Order 41 Rule 11 C.P.C. Order Date :- 30.03.2022 Ruchi Digitally signed by RUCHI AGRAHARI Date: 2022.03.30 14:28:09 IST Reason: Location: High Court of Judicature at Allahabad 8 of 8