Hon'ble Mr. Justice Mohan M. Shantanagoudar
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 7843 OF 2009
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
aside the order of the Subordinate Judge in O.S. No.69 of 1987,
thereby decreeing the suit in favour of the respondentsplaintiffs.
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REPORTABLE
2. A brief reference to the facts may be necessary for the disposal of
the present case. The original plaintiff no.1 (predecessorininterest 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),
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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
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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 respondentsplaintiffs 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
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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 respondentsplaintiffs 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
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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
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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
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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
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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 respondentsplaintiffs 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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