As has been observed above that since lease deed Ex. PW-2/A was void ab initio, no right over suit property, if any, could be claimed by plaintiff on the basis of the same. Though plaintiff, while leading oral evidence as well as placing reliance on lease deed available on record, made an endeavor to prove on record that pursuant to execution of aforesaid lease deed, she was put into possession of the property and as such she could not be evicted from the suit land without following due procedure of law, but in the instant case, once plaintiff failed to prove on record that 'Mohatmim' had any authority to execute lease deed or he was authorized to alienate the property of the temple or trust or he alienated the property for the legal necessity and for benefit of trust/temple, learned trial Court wrongly concluded that plaintiff's right over the suit land, on the basis of lease deed, has not been terminated lawfully. Since, it stands duly proved on record that 'Mohatmim' Ramanuj had no authority to alienate property, lease executed on his behest in favour of plaintiff has/had no force and it creates/created no rights in favour of plaintiff.
Again the lease being a permanent one for a fixed rent could not have been granted at all by the Raja of Puri. Reference in this connection may usefully be made to page 931 of Mayne's Treatise on Hindu Law (11th Edition), where the position is stated as follows:-
"It is beyond the powers of a manager to grant a permanent lease at a fixed rent in the absence of unavoidable necessity; for, to fix the rent, though adequate at the time in perpetuity. in lieu of giving the endowment the benefit of an augmentation of a variable rent from time to time would be a breach of duty on the part of the manager. In Talaniappa Chetty v. Streemath Deivasikamony (1917) 44 I.A. 147. Lord Atkinson observed: "Three authorities have been cited which establish that it is a breach of duty on the part or a shebait, unless constrained thereto by unavoidable necessity, to grant a lease in perpetuity of debutter lands at a fixed rent. However adequate that rent may be at the time of granting, reason of the fact that, by this means, the debutter estate is deprived of the chance it would have, if the rent were variable of deriving benefit from the enhancement in value in the future of the lands leased."
IN THE HIGH COURT OF HIMACHAL PRADESH AT SHIMLA
Regular Second Appeal No. 331 of 2005
Decided On: 21.07.2017
Urmil Gupta Vs. Commissioner
Hon'ble Judges/Coram:
Sandeep Sharma, J.
Citation: AIR 2017 HP183
1. This Regular Second Appeal filed under Section 100 of the Code of Civil Procedure is directed against the judgment and decree dated 31.03.2005, passed by learned Additional District Judge, Sirmaur District at Nahan, in Civil Appeal No. 22-N/13 of 2002, reversing the judgment and decree dated 11.03.2002 passed by learned Sub Judge Ist Class, Court No. 1, Paonta Sahib, District Sirmuar, whereby suit of the plaintiff was decreed.
2. Briefly stated facts, as emerged from the record, are that on 20.12.1969, the plaintiff-appellant (hereinafter referred to as the 'plaintiff'), came in possession of the land comprised in Khata Khatauni No. 12/15 min, Khasra No. 135/1 (now bearing Khata Khatauni No. 486 min/609, Khasra No. 594/437/269 min), measuring 1 bigha, situated in Devinagar Mohalla in Paonta Sahib Town, District Sirmaur, H.P. (hereinafter referred to as the suit land), which was owned and possessed by Thakur Dwara Dei Ji Sahiba Mandir (for short the 'Temple'), on the strength of lease deed, created by ''Mohatmim' ' of the Temple Shri Ramanuj for a period of 99 years. It is averred by the plaintiff that the rent was agreed @ Rs. 100/- per annum payable every year on 20th June and 20th December, respectively. It is further averred by the plaintiff that possession of the land was delivered to her and since then she is in continuous possession of the suit land and is paying the rent regularly. It is alleged by the plaintiff that the Temple Officer unilaterally cancelled the lease vide his order No. 499 dated 4.7.1999 and started interfering in the possession. It is also averred by the plaintiff that she through her attorney Shri Dalip Singh made an application for obtaining copy of order, but neither the Temple Officer nor Patwari Halqua gave copy of the report of Roznamcha No. 479 dated 13.8.1999. It is alleged that Temple Officer was not competent and authorized by law to cancel the lease and take forcible possession and as such, order No. 499 dated 4.7.1999, is null and void. It is further averred by the plaintiff that she has not been afforded any opportunity of being heard against the order passed by the Temple Officer. It is further averred by the plaintiff that in November, 1999, defendant tried to take forcible possession, but his action was resisted. In this background, the plaintiff filed a suit for declaration that she is a permanent lessee of the suit land and that the order passed by the Temple Officer cancelling the lease is illegal, void and not binding on her rights. As a consequential relief, she also prayed for a decree of permanent injunction restraining the defendant from interfering with her possession over the suit land.
3. Defendant, by way of filing written statement, refuted the claim of the plaintiff on the grounds of maintainability, locus standi and jurisdiction. On merits, it is alleged by the defendants that the lease deed is illegal, void and that it has already been cancelled for breach of condition No. 6. It is also pleaded that lease deed was not for the benefit of temple and it did not create any right, title and interest in favour of the plaintiff. It is claimed that Urmil Gupta has left India and settled in foreign country after 1974 and she is not in possession of the suit property and has not paid rent after 1974. It is further averred by the defendant the 'Mohatmim' of the Temple was not competent to execute the lease deed. In nutshell, the defendant refuted the case of the plaintiff and prayed for dismissal of the suit.
4. On the pleadings of the parties, the learned trial Court framed the following issues for determination:-
"1. Whether order dated 4.7.1999 passed by Temple Officer is illegal. If so, its effect? OPP.
2. Whether plaintiff is entitled to the relief of injunction? OPP.
3. Whether plaintiff committed breach of term No. 6. If so, its effect? OPD.
4. Whether this court has no jurisdiction in view of section 32 of H.P. Religious and Charitable Endowment Act, 1984? OPD
5. Relief"
5. Subsequently, learned trial Court, on the basis of pleadings as well as evidence adduced on record by respective parties, decreed the suit of the plaintiff by declaring that lease deed executed on 20.12.1969 and registered on 22.12.1969 is still subsisting. The defendant was also restrained from interfering in possession of the plaintiff till plaintiff is dispossessed in accordance with law.
6. Being aggrieved and dissatisfied with the aforesaid judgment and decree passed by learned trial Court, defendant preferred an appeal under Section 96 of the Code of Civil Procedure in the Court of learned Additional District Judge, Sirmaur District at Nahan, who, taking note of the pleadings as well as evidence adduced on record by respective parties, allowed the appeal and set aside the judgment and decree passed by learned trial Court.
7. In the aforesaid background, appellant-plaintiff filed instant Regular Second Appeal laying therein challenge to the aforesaid judgment and decree passed by learned Additional District Judge, Sirmaur District at Nahan, whereby suit of the plaintiff was dismissed with a prayer to quash and set aside the same.
8. This Court vide order dated 12.07.2005 admitted the appeal on the following substantial question of law:-
"(1) Whether lease deed admittedly having been executed between the parties could be set aside by the Temple Officer without affording reasonable opportunity of being heard to the concerned party?
(2) Whether the first appellate Court could have held that the defendant was in possession of the suit land without there being an issue to this effect?"
9. Shri G.D. Verma, learned Senior Counsel, representing the appellant-plaintiff, while inviting the attention of this Court to the impugned judgment passed by the learned first appellate Court, vehemently contended that the same is not sustainable in the eyes of law as the same is not based upon correct appreciation of evidence adduced on record. Shri Verma further contended that the learned appellate Court, while setting aside the judgment passed by learned trial Court, failed to appreciate that learned trial Court had allowed the suit of the plaintiff on the ground that method adopted by the defendant for determining the lease was violative of settled principle of law and trial Court had not returned any finding with regard to competence of 'Mohatmim' to grant the lease in favour of the plaintiff. Learned counsel further contended that the judgment and decree passed by learned trial Court was to the effect that lease deed executed on 20.12.1969 is still subsisting and as such defendant is restrained from interfering in possession of the plaintiff till the plaintiff is dispossessed in accordance with law.
10. Learned counsel, while inviting the attention of this Court to the judgment passed by learned trial Court, further contended that suit of the plaintiff was decreed by learned trial Court on the ground that Order No. 499 dated 4.7.1999, whereby lease in favour of the plaintiff was cancelled unilaterally, was not passed in a manner known to law and as such learned first appellate Court fell in grave error while pronouncing its judgment qua the validity of lease deed admittedly executed by 'Mohatmim' in favour of the plaintiff. Mr. Verma further contended that since no specific issue, if any, with regard to validity of lease deed was framed by trial Court, there was no occasion for learned appellate Court to return findings that the learned trial Court has failed to frame material issue and also failed to return its findings on issue No. 3.
11. Apart from above, learned counsel representing the appellant-plaintiff further contended that there was no issue framed by trial Court with regard to possession, if any, of the plaintiff on the land in question, but learned appellate Court, while returning findings on this issue, has actually transgressed the scope of appeal and as such same deserves to be quashed and set aside. While concluding his arguments, Mr. Verma, contended that, if for the sake of arguments, it is presumed that 'Mohatmim' had no authority to execute lease deed in favour of the plaintiff, even in that eventuality, plaintiff could not be dispossessed by defendant by passing cancellation order without issuing any notice.
12. Mr. R.K. Sharma, learned Additional Advocate General, while referring to impugned judgment passed by learned trial Court, contended that there is no illegality and infirmity in the same and as such, the same is based upon correct appreciation of evidence available on record. Learned Additional Advocate General further contended that bare perusal of judgment and decree passed by learned trial Court itself suggests that learned trial Court, after having gone through the evidence adduced on record as well as provisions of law, was convinced and satisfied that 'Mohatmim' of the temple had no authority, whatsoever, to execute lease in favour of plaintiff. Mr. Sharma, learned Additional Advocate General, further contended that once trial Court had formed an opinion that 'Mohatmim' had no authority to execute the lease deed, there was no occasion, as such, for trial Court to conclude that plaintiff could not be evicted by the defendant without following due procedure of law.
13. Mr. R.K. Sharma, learned Additional Advocate General further contended that it is well settled that 'Mohatmim' has/had no authority to execute lease deed and as such, lease deed, if any, made in favour of plaintiff is nullity in the eye of law. Document placed on record by the plaintiff is void ab initio and as such, same does not confer any right in favour of plaintiff and as such entries made in revenue record showing defendant to be the owner in possession of the suit land is correct. Mr. Sharma further contended that since alleged lease deed is/was void document, there was no requirement for department to cancel the same. Learned Additional Advocate General further contended that it stands duly proved on record that possession is with the defendant and as such there was no requirement for them to proceed with in accordance with law while evicting the plaintiff from the suit land.
14. I have heard learned counsel for the parties and gone through the record of the case.
Substantial Questions No. 1 & 2:
15. Since both the substantial questions are interlinked/inter-connected, therefore, the same are taken up together for consideration.
16. In the present case, even if facts/averments, as contained in plaint, are taken to be correct, one Ramanuj, who was 'Mohatmim', created a permanent lease in respect of the suit land in favour of the plaintiff by executing a lease deed Ex. PW-2/A for leased money at the rate of Rs. 100/- per annum. 'Mohatmim' Ramanuj, at the time of leasing out property, was acting like the guardian of temple and as such he had no authority, whatsoever, to lease out property belonging to the Deity. It is well settled that property given for maintenance of religious worship and of charities connected with it is inalienable and the powers of 'Mohatmim' or a Mahant to alienate debutter property is analogous to that of a manager for an infant heir. 'Mohatmim' has no power to alienate the property except for his need or for benefit of the estate.
17. Hon'ble Apex Court in case titled as Sridhar Suar and another v. Shri Jagan Nath Temple and others, MANU/SC/0021/1976 : AIR 1976 SC 1860, which has also been taken note of by the learned first appellate Court, has categorically held that it is beyond the powers of a manager to grant a permanent lease at a fixed rent in the absence of unavoidable necessity; for, to fix the rent, though adequate at the time in perpetuity, in lieu of giving the endowment the benefit of an augmentation of a variable rent from time to time would be a breach of duty on the part of the manager. It has been specifically held that the ''Mohatmim' has no power to alienate debutter property except in case of need or for benefit of the estate. Hon'ble Apex Court has further held in the aforesaid judgment that 'Mohatmim' is not entitled to sell the property for the purpose of investing the price of it so as to bring in an income larger than that derived from the property itself. Nor can he, except for legal necessity grant a permanent lease of debutter property, though he may create proper derivative tenures and estates conformable to usage.
18. It would be profitable to take note of the following paras of the judgment supra:-
"14. Now assuming without holding that the Sanand amounted to a lease, it cannot even then be held to be valid as permanent alienation of the temple debutter property is prohibited. The position is stated thus at page 489 of Mulla's Treatise on Principles of Hindu law (11th Edition):-
"The power of a shebait or a mohunt to alienate debenture property is analogous to that of a manager for an infant heir as defined by the Judicial Committee in Hunooman Pershad v. Mussamat Babooee 6 M.I.A. 393. As held in that case, he has no power to alienate debutter property expect in a case of need or for the benefit of the estate. He is not entitled to sell the property for the purpose of investing, the price of it so as to bring in an income larger than that derived from the property itself. Nor can he, except for legal necessity grant a permanent lease of debutter property, though he may create proper derivative tenures and estates conformable to usage."
15. In the present case, the position of the Raja of Puri who granted the Sanand (exhibit) was merely that of a shebait. He could not have granted a permanent lease of the property in question to the great grandfather of the plaintiff without necessity or without benefit to the estate which have not at all been made out in this case
16. Again the lease being a permanent one for a fixed rent could not have been granted at all by the Raja of Puri. Reference in this connection may usefully be made to page 931 of Mayne's Treatise on Hindu Law (11th Edition), where the position is stated as follows:-
"It is beyond the powers of a manager to grant a permanent lease at a fixed rent in the absence of unavoidable necessity; for, to fix the rent, though adequate at the time in perpetuity. in lieu of giving the endowment the benefit of an augmentation of a variable rent from time to time would be a breach of duty on the part of the manager. In Talaniappa Chetty v. Streemath Deivasikamony (1917) 44 I.A. 147. Lord Atkinson observed: "Three authorities have been cited which establish that it is a breach of duty on the part or a shebait, unless constrained thereto by unavoidable necessity, to grant a lease in perpetuity of debutter lands at a fixed rent. However adequate that rent may be at the time of granting, reason of the fact that, by this means, the debutter estate is deprived of the chance it would have, if the rent were variable of deriving benefit from the enhancement in value in the future of the lands leased."
19. In the instant case, this Court after having carefully perused lease deed, Ex. PW-2/A, allegedly executed by 'Mohatmim' in favour of plaintiff, sees substantial force in the arguments of learned Additional Advocate General that lease was not executed in favour of plaintiff for the benefit of temple or for the legal necessity. Bare perusal of leased document referred above nowhere finds mention, if any, with regard to aforesaid two conditions, which are required for execution of lease of property belonging to temple by its 'Mohatmim' or manager. It is undisputed in the present case that ''Mohatmim'; namely; Ramanuj created a permanent lease in respect of suit land in favour of the plaintiff for a period of 99 years that too for a meager amount of Rs. 100/- per annum. Plaintiff has nowhere disputed the status of Ramanuj as 'Mohatmim', rather it is own case of plaintiff that property in question was leased out to her by 'Mohatmim' of the temple for a sum of Rs. 903/- for a period of 99 years. Hence, this Court sees no illegality and infirmity in the judgment passed by learned first appellate Court that lease deed Ex. PW-2/A, allegedly executed by 'Mohatmim', is illegal, null and void and creates no right, title or interest in favour of the plaintiff and as such the same was rightly cancelled by the Temple Officer vide order dated 4.7.1999. Since ''Mohatmim' had no authority to create a lease in respect of suit land belonging to temple, document Ex. PW-2/A has/had no validity in the eye of law and as such learned trial Court wrongly came to the conclusion that lease deed Ex. PW-2/A is still subsisting. This Court finds from the judgment of trial Court that even on the basis of pleadings as well as evidence adduced on record by respective parties that trial Court itself had come to conclusion that Ramanuj was not competent as a 'Mohatmim' to execute the document of alienation without legal necessity. But, interestingly, learned trial Court, while disagreeing with the defence taken by defendant, came to the conclusion that Ramanuj 'Mohatmim' has not executed the lease in the year 1969 for his personal use and even if it is assumed for the sake of arguments that lease deed was void, still plaintiff could not be dispossessed forcibly. The aforesaid finding returned by the trial Court was rightly rejected by the learned first appellate Court because once trial Court had come to conclusion that Ramanuj 'Mohatmim' had no authority to execute document of alienation without any legal necessity, no right over the property allegedly leased out in favour of plaintiff could be claimed by plaintiff on the basis of invalid document.
20. As has been observed above that since lease deed Ex. PW-2/A was void ab initio, no right over suit property, if any, could be claimed by plaintiff on the basis of the same. Though plaintiff, while leading oral evidence as well as placing reliance on lease deed available on record, made an endeavor to prove on record that pursuant to execution of aforesaid lease deed, she was put into possession of the property and as such she could not be evicted from the suit land without following due procedure of law, but in the instant case, once plaintiff failed to prove on record that 'Mohatmim' had any authority to execute lease deed or he was authorized to alienate the property of the temple or trust or he alienated the property for the legal necessity and for benefit of trust/temple, learned trial Court wrongly concluded that plaintiff's right over the suit land, on the basis of lease deed, has not been terminated lawfully. Since, it stands duly proved on record that 'Mohatmim' Ramanuj had no authority to alienate property, lease executed on his behest in favour of plaintiff has/had no force and it creates/created no rights in favour of plaintiff. Though in the instant case, it is own case of plaintiff that cancellation order was passed by the Tehsildar (Temple Officer) on 4.7.1999, but this Court is of the view that since lease deed in question is/was void ab initio, there is/was no requirement, if any, for authorities concerned to issue notice to the plaintiff.
21. In the instant case, suit for declaration and injunction was filed by the plaintiff seeking declaration that she is permanent lessee for 99 years, on the basis of lease deed dated 20.12.1969. Defendant, while refuting the aforesaid claim of plaintiff, specifically denied authority, if any, with 'Mohatmim' Ramanuj to execute lease deed and also denied possession, if any, of the plaintiff over the suit land. Since validity of lease deed Ex. PW-2/A was not proved before Court below, learned first appellate Court rightly, on the basis of evidence adduced on record by the respective parties, returned its findings qua the issue of possession of plaintiff over the suit land. Though plaintiff with the help of oral evidence made an attempt to prove on record that she was put into possession of the suit land after execution of lease deed and till date she is in possession of land in question, but careful perusal of statements of plaintiff witnesses clearly suggests that version put forth by them with regard to possession of plaintiff over the suit land is not only contradictory but no definite opinion can be formed with regard to alleged possession of plaintiff over the suit land, whereas defendant has successfully proved on record that temple is in the possession of the suit property and at no point of time plaintiff ever deposited the rent in terms of lease deed allegedly executed by the 'Mohatmim' in favour of the plaintiff. It has specifically come in the statement of DW-2 Jai Nand Sharma, Tehsildar, Rajgarh, who remained posted as Tehsildar-cum-Temple Officer from 16.9.1998 to 18.6.2001, that the Temple is in possession of the suit land and the plaintiff Urmil Gupta never deposited rent since 1974.
22. It also emerge from the record that learned first appellate Court allowed appellant-defendant to examine AW-1 Shri Rajesh Sharma i.e. Patwari of the Temple, who categorically stated that the fencing of the suit land was done in the year 1997-98 and the barbed wires were fixed as per Ex. AW-1/A to Ex. AW-1/E. Careful perusal of aforesaid documents leaves no doubt in the mind of Court that possession of the suit land is with the defendant and the barbed wires have been fixed by the temple and as such learned first appellate Court rightly concluded that temple is in possession of the suit land. All the plaintiff witnesses have specifically stated that plaintiff; namely; Smt. Urmil Gupta had gone to foreign country and she had fixed barbed wire around the land about 4-5 years ago. It has also come in their statements that suit land is lying vacant adjacent to the temple. This Court cannot loose sight of the fact that in the instant case plaintiff, in whose favour lease was executed by 'Mohatmim' of the temple never stepped into the witness box, rather instant suit was filed by her attorney; namely; Shri Dalip Kumar, who appeared before the Court as PW-1 and deposed that Urmil Gupta had gone to the foreign country about 5-6 years ago. Since lease deed was executed in favour of the plaintiff, it was expected from the plaintiff to prove her case by stepping into witness box and state that she is in possession of the suit land. Once plaintiff failed to step into witness box, no reliance, if any, could be placed on the version put forth by PW-1 Dalip Singh i.e. Special Power Attorney of plaintiff, who, in his cross-examination, specifically admitted that he was not present at the time of execution of lease deed. By now it is well settled that where a party to a suit fails to enter into a witness box and states his/her own case on oath and does not offer himself/herself to be cross-examined by the other side, a presumption would arise that the case set up by him/her is not correct.
23. In this regard reliance is placed on the judgment of this Court in Harswarup v. Ram Lok Sharma, MANU/HP/0107/2000 : 2000(3) Shim. L.C. 160, wherein this Court has held as under:-
"18. Be it stated that the tenant has not dared to step into the witness box to state about either the condition of the tenanted premises or the bona fide requirement of the landlord for rebuilding and/or reconstruction. Only his general attorney Kuldip Singh has appeared as RW5.
19. It has been held by the Apex Court in Ishwar Bhai C. Patel v. Harihar Behera and another, (MANU/SC/0173/1999 : 1999(2) Current Civil Cases 171 (SC), that if a defendant does not enter the witness box to make a statement on oath in support of the pleadings set out in the written statement, an adverse inference would arise that what he had stated in the written statement was not correct.
20. This court in Gurdev Singh v. Gulaboo, R.S.A. No. 302 of 1992, decided on 24.4.2000, has held that the appearance of a general attorney cannot be regarded as appearance of the party. The appearance of a general attorney is only as a witness in his personal capacity.
21. Therefore, in the present case, on the failure of the tenant to step into the witness box to make a statement on oath in support of his pleadings and to subject himself to cross-examination, an adverse inference will have to be drawn against him and it will have to be presumed that the tenanted premises are dilapidated and have become unfit and unsafe for human habitation. The findings recorded by the learned Appellate Authority, therefore, call for no interference."
24. It is well settled that injunction cannot be granted against the true owner and as such first appellate Court rightly rejected relief of declaration and injunction in favour of the plaintiff, who had admittedly no interest in the property. Even if, argument, having been made by Mr. G.D. Verma, learned Senior Counsel appearing for the appellant-plaintiff, is accepted that the plaintiff was having possession over the suit land, her possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser who gained unlawful possession, as against the respondent-defendant. In this regard reliance is placed upon Premji Ratansey Shah and Others v. Union of India and Others, MANU/SC/0819/1994 : (1994)5 SCC 547, wherein the Hon'ble Apex Court has held as under:-
"5. It is equally settled law that injunction would not be issued against the true owner. Therefore, the courts below have rightly rejected the relief of declaration and injunction in favour of the petitioners who have no interest in the property. Even assuming that they had any possession, their possession is wholly unlawful possession of a trespasser and an injunction cannot be issued in favour of a trespasser or a person who gained unlawful possession, as against the owner. Pretext of dispute of identity of the land should not be an excuse to claim injunction against true owner." (p.550)
25. Hon'ble Apex Court in Kashi Math Samsthan & Anr. v. Srimad Sudhindra Thirtha Swamy & Anr., MANU/SC/1852/2009 : AIR 2010 SC 296, has held as under:-
"13. It is well settled that in order to obtain an order of injunction, the party who seeks for grant of such injunction has to prove that he has made out a prima facie case to go for trial, the balance of convenience is also in his favour and he will suffer irreparable loss and injury if injunction is not granted. But it is equally well settled that when a party fails to prove prima facie case to go for trial, question of considering the balance of convenience or irreparable loss and injury to the party concerned would not be material at all, that is to say, if that party fails to prove prima facie case to go for trial, it is not open to the Court to grant injunction in his favour even if, he has made out a case of balance of convenience being in his favour and would suffer irreparable loss and injury if no injunction order is granted. Therefore, keeping this principle in mind, let us now see, whether the appellant has been able to prove prima facie case to get an order of injunction during the pendency of the two appeals in the High Court. In para 21 of the Judgment of the trial Court, it is found:
"....... the words 'certain and 'some' quoted above and 'when we are still in a position to carry on with the traditional duties', prima facie show that the 1st respondent has not surrendered all his rights, privilege and duties and that the 2nd petitioner has not been made as full fledged Mathadhipathi. As per the custom prevailing since continuous, vatu initiated into Sanyasa and named as successor, will become Mathadhipathi after the Mathadhipathi passes away."
From the aforesaid finding of the trial Court, it is clear that the respondent No. 1 had not abrogated all his powers as Mathadhipathi in favour of the appellant No. 2 and he was only entrusted with certain powers. In para 22 of the Judgment of the trial Court, it was observed as follows :-
"The following circumstances also go to support the version of the 1st respondent. The 2nd petitioner himself has addressed a letter dated 4/11/99 reads as follows:
'In view of the recent events, we have kindly decided not to involve in the matters concerning the authority of Shri Samshtan (Adhikartha Vishayas) as well as Dharmic activities (Dharmic Vishayas) of the samaj. Therefore with pranamas, again and again we pray and request to relive us as early as possible.'
This prima facie shows that the 2nd petitioner has been still recognizing the 1st Mathadhipathi, and therefore requested him to relieve himself from "certain activities."
A careful reading of the aforesaid findings/observations made in para 22 of the judgment of the trial Court would show that the letter dated 4th of November, 1999 clearly enumerates the fact that the appellant No. 2 had wanted to be relieved from certain activities of the Math and he had in fact sought permission from the respondent no 1 in this regard. Therefore, in our view, it was rightly held by the trial Court in the final Judgment that the appellant No. 2 continued to consider the respondent No. 1 as the Mathadhipathi of the Math even after the alleged proclamation of 1994.
The trial court again in para 24 had observed:
"If all the circumstances are taken into consideration the irresistible conclusion that can be drawn at this stage is that, the 1st respondent has not abdicated all his powers and privileges as Mathadhipathi and only some powers and privileges have been conferred on 2nd petitioner. In view of the above discussion, I hold that the 2nd petitioner is not entitled for the injunction orders as claimed by him."
(Emphasis supplied)
In view of the aforesaid findings of the trial Court to the extent that appellant No. 2 was not entitled to the injunction order as claimed by him, it is difficult to find any illegality or infirmity with the findings of the trial court, as noted hereinabove, atleast prima facie in respect of which, the High Court had also agreed. We are, therefore, of the view that the powers of the Mathadhipathi of the Math were not abdicated in favour of the appellant No. 2. It is well settled that such power of the Mathadhipathiship of the Math could devolve to any other person after the death of the existing Mathadhipathi or anyone else, who could succeed him as the Mathadhipathi of the Math according to the customs and traditions of the Math."
(pp.299-300)
26. Mr. G.D. Verma, learned Senior Counsel, while placing reliance upon Krishna Ram Mahale (dead) by his LRs. v. Mrs. Shobba Venkat Rao, MANU/SC/0278/1989 : AIR 1989 SC 2097, contended that it is well settled law that where a person is in settled possession of property, even on the presumption that he had no right to remain in charge of the property, he cannot be dispossessed by the owner of the property, except by recourse to law. Hon'ble Apex Court in the aforementioned case has held as under:-
"8. Mr. Tarkunde, learned Counsel for defendant No. 3, the appellant herein, rightly did not go into the appreciation of the evidence either by the Trial Court or the High Court or the factual conclusions drawn by them. It was, however, strongly urged by him that the period of licence had expired long back and the plaintiff was not entitled to the renewal of licence. It was submitted by him that in view of the licence having come to an end, the plaintiff had no right to remain in charge of the business or the premises where it was conducted and all that the plaintiff could ask for was damages for unlawful dispossession even on the footing of facts as found by the High Court. We find ourselves totally unable to accept the submission of Mr. Tarkunde. It is a well-settled law in this country that where a person is in settled possession of property, even on the assumption that he had no right to remain on the property, he cannot be dispossessed by the owner of the property except by recourse to law. If any authority were needed for that proposition, we could refer to the decision of a Division Bench of this Court in Lallu Yeshwant Singh v. Rao Jagdish Singh and Ors. MANU/SC/0425/1967 : AIR 1968 SC 620 (at pp.622-623). This Court in that judgment cited with approval the well-known passage from the leading privy Council case of Midnapur Zamindary Company Limited v. Naresh Narayan Roy MANU/PR/0054/1920 : 51 Ind App 293 at p. 299: (AIR 1924 PC 144), where it has been observed (p-208)(of SCR): (at p.622 of AIR):
In India persons are not permitted to take forcible possession; they must obtain such possession as they are entitled to through a Court." (p.2100)
27. This Court sees no reason to differ with the aforementioned argument having been made by Mr. G.D. Verma, learned Senior Counsel, which is based upon judgment passed by Hon'ble apex Court, but in the instant case, as has been discussed above, respondent-plaintiff has not been able to prove her possession over the suit land. All the plaintiff witnesses have given altogether different version with regard to the possession of the plaintiff over the suit land. Most importantly, as has been discussed above, suit for injunction in the instant case as well as declaration in the instant case was filed by the plaintiff wherein she admittedly failed to prove her title as well as possession over the suit land. Since lease deed allegedly executed by Mohatmim is/was void ab initio, possession, if any, acquired by the plaintiff on the strength of same cannot be termed to be lawful. As has been observed above by Hon'ble Apex Court in Premji Ratansey Shah's case supra, no injunction can be issued against the true owner and possession, if any, without there being any title is only unlawful possession of trespasser.
28. As far as judgment passed by Hon'ble Apex Court in B.M. Narayana Gowda v. Shanthamma (Dead) by LRs. and Another, MANU/SC/0520/2011 : (2011)15 SCC 476, is concerned, there cannot be any quarrel that in the first appeal parties have the right to be heard both in question of law as also on facts and the first appellate Court is required to address itself to all issues and decide the case by giving reasons.
29. In the instant case, it clearly emerge from the record that learned first appellate Court, while examining the correctness of judgment passed by learned trial Court, has dealt with each and every aspect of the matter and has also carefully perused the evidence led on record by respective parties, while differing with the findings returned by the trial Court. It also emerge from the judgment passed by learned first appellate Court that it has assigned specific reasons to differ with the findings returned by the trial Court and as such, this Court finds no force in the arguments of Shri G.D. Verma, learned Senior Counsel that learned first appellate Court has failed to address all issues.
30. Hon'ble Apex Court in Laliteshwar Prasad Singh v. S.P. Srivastava, MANU/SC/1596/2016 : (2017)2 SCC 415, has specifically held that appellate Court is final Court of facts and as such its judgment must reflect application of mind and must record its findings supported by reasons. Hon'ble Apex Court in the aforesaid judgment, taking note of the earlier judgment passed in Santosh Hazari v. Purushottam Tiwari, MANU/SC/0091/2001 : (2001)3 SCC 179, has held as under:
"13. An appellate court is the final court of facts. The judgment of the appellate court must therefore reflect court's application of mind and record its findings supported by reasons. The law relating to powers and duties of the first appellate court is well fortified by the legal provisions and judicial pronouncements. Considering the nature and scope of duty of first appellate court, in Vinod Kumar v. Gangadhar MANU/SC/0946/2014 : (2015) 1 SCC 391, it was held as under:-
"12. In Santosh Hazari v. Purushottam Tiwari MANU/SC/0091/2001 : (2001) 3 SCC 179, this Court held as under: (SCC pp. 188-89, para 15)
"15. ... The appellate court has jurisdiction to reverse or affirm the findings of the trial court. First appeal is a valuable right of the parties and unless restricted by law, the whole case is therein open for rehearing both on questions of fact and law. The judgment of the appellate court must, therefore, reflect its conscious application of mind and record findings supported by reasons, on all the issues arising along with the contentions put forth, and pressed by the parties for decision of the appellate court. ... while reversing a finding of fact the appellate court must come into close quarters with the reasoning assigned by the trial court and then assign its own reasons for arriving at a different finding. This would satisfy the court hearing a further appeal that the first appellate court had discharged the duty expected of it."
The above view has been followed by a three-Judge Bench decision of this Court in Madhukar v. Sangram MANU/SC/0302/2001 : (2001) 4 SCC 756, wherein it was reiterated that sitting as a court of first appeal, it is the duty of the High Court to deal with all the issues and the evidence led by the parties before recording its findings."
31. Hence, this Court sees no force in arguments of Shri G.D. Verma, learned Senior Counsel for the appellant, that since no issue with regard to possession of plaintiff was framed by trial Court, there was no occasion for learned first appellate Court to return findings that defendant was in possession of the suit land. Learned trial Court may not have framed specific issue qua the possession, if any, of plaintiff over the suit land, pursuant to lease deed allegedly executed in her favour by ''Mohatmim' Ramanuj, but since question with regard to validity of lease deed was before first appellate Court, there was no bar for it to make findings/observations with regard to possession, if any, of plaintiff over the suit land which was purely based upon the basis of lease deed executed in her favour by 'Mohatmim'. Otherwise also, it was incumbent upon the learned first appellate Court, being last facts finding Court, to deal with all the issues and evidence led by the parties before recording its findings, as has been held in Laliteshwar Prasad Singh's case supra. Both the substantial questions are answered, accordingly.
32. Leaving everything aside, this Court finds from record that plaintiff; namely; Urmil Gupta resides in Australia and instant suit was filed on her behalf by her Special Power of Attorney; namely Dalip Singh. Whether suit, if any, could be filed on the basis of Special Power of Attorney is also a debatable question. Moreover, Perusal of the record nowhere suggests that even Special Power of Attorney allegedly executed by plaintiff in favour of PW-1 Dalip Singh was placed on record in accordance with law.
33. Consequently, in view of above, this Court sees no reasons to interfere with the well reasoned judgment passed by learned first appellate Court, which otherwise appears to be based upon correct appreciation of evidence as well as law laid down by Hon'ble Apex Court as well as by this Court from time to time. Accordingly present appeal fails and is dismissed accordingly.
34. Interim order, if any, is vacated. All the miscellaneous applications are disposed of.
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