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IN THE HIGH COURT OF JAMMU AND KASHMIR AT JAMMU
S. Murtaza Fazl Ali,Janki Nath Bhat, JJ.
Gauri Shanker & Anr. - Appellant
Versus
Th. Dass - Respondent
LPA No. 9/1970
Decided On : 12 January, 1971
HINDU ENDOWMENT - DEDICATION - COMPLETE OR PARTIAL - INTERPRETATION OF COMMAND ORDER - REVENUE RECORDS - POSSESSION - PARTITION - ILLAN NO. 13 OF 1964 (BIKRAMI) - APPLICABILITY.
Fact of the Case:
Plaintiffs, claiming ownership and possession of half of the land and Kothas, and management rights of Thakurdawara Narsingh Ji Maharaj, filed a suit against the defendants for a declaration and permanent injunction. The defendants claimed that the land and Kothas were the property of the Thakurdawara and that the defendant was the legal Mohtamim in possession. The trial court dismissed the suit, holding that the property was dedicated to the Thakurdawara and that the plaintiffs were not entitled to any share.
Finding of the Court:
The High Court held that the trial court erred in its finding that the property was dedicated to the Thakurdawara. The court found that there was no evidence to show the nature of the dedication or the rights of the parties thereto. The court also found that the revenue records showed that the plaintiffs and the defendants were jointly shown in possession of the land and that there had been a partition of the land, which indicated that the parties treated the land as their personal property. The court concluded that the plaintiffs were entitled to one-fourth share in the entire property, not the half of the land and all the Kothas as claimed by them.
Issues: 1. Whether the property in dispute was dedicated to the Thakurdawara Narsingh Ji Maharaj? 2. Whether the plaintiffs were entitled to any share in the property?
Ratio Decidendi: 1. The court held that the dedication of a property to religious or charitable purpose may be either complete or partial. In the case of a complete dedication, a trust in favor of public religious charity is created. In the case of a partial dedication, a trust in favor of the charity is not created but a charge in favor of the charity is attached to, and follows, the property which retains its original, private, and secular character. 2. The court found that there was no evidence to show the nature of the dedication or the rights of the parties thereto. The court also found that the revenue records showed that the plaintiffs and the defendants were jointly shown in possession of the land and that there had been a partition of the land, which indicated that the parties treated the land as their personal property. The court concluded that the plaintiffs were entitled to one-fourth share in the entire property, not the half of the land and all the Kothas as claimed by them.
Final Decision: The appeal was accepted to the extent that the decree of the trial court was set aside to the extent indicated. The parties were left to bear their own costs throughout.
1. This is plaintiffs appeal against the decree passed by a learned Single Judge (Honble Mr. Justice Jaswant Singh) of this Court dated 5th March 1969 whereby he dismissed the suit of the plaintiffs for a declaration that they were the owners in possession to the extent of half of the land measuring 59 kanals 8 marlas comprising Khewat Nos. 58, 59, 60 and 61 situate in village Chahni Mansar, Tehsil Ramnagar; that they were owners of the Kothas standing on the suit land and they were managers of the Thakurdawara Narsingh Ji Maharaja, and for permanent injunction restraining the defendants in interfering with their rights of possession and enjoyment of the land, their right of worship and acting as Managers of the said Thakurdawars.
2. The suit was brought in the name of four plaintiffs viz; Gauri Shanker, Dina Nath, Parmanand and Galdhoo sons of Mansa Ram through Gauri Shanker as a Karta of Hindu Joint Family against Thakur Dass and Durga Dass sons of Bhagat Ram.
3. The defendant No. 1 in his written statement stated that the land and the Kothas mentioned in the plaint are the property of Thakurdawara Narsingh Ji Maharaj and the defendant No. 1 is the legal Mohtamim and is in possession. Plaintiffs 2 and 3 were dead and the suit was not as such maintainable. The plaintiffs had no right over the suit property. The defendant No. 1 has been appointed as the Mohtamim of the temple. Bhagat Ram the father of the defendant 1 was appointed Mohatamim of the temple by order of the Governor Jammu dated 22-2-2000 and the plaintiffs did not go in appeal against that order, that order has as such become final. Since then the father of the defendant No. 1 and after him the defendant No. 1 is in possession of this property. Defendant No. 1 was appointed the sole Mohatamim by Bhagat Ram by means of a will dated 27th April. 1965.
4. The following issues were framed in this case: -
1. Whether the plaintiffs 2 and 3 died before the filing of the suit and if so, what is its effect on the suit? O. P. P.
2. Whether the plaintiffs are in possession of the land in suit and have title to the same? O. P. P.
3. Has the civil Court no jurisdiction to try the present suit? O. P. D.
4. To what relief, if any, are the plaintiffs entitled?
The learned Judge recorded the evidence of the witnesses produced by the parties and ultimately he held that the suit was cognizable by a civil Court; that the plaintiffs 2 and 3 had died before the institution of the suit but that would not affect the maintainability of the present suit by Gauri Shanker and Galdhoo. The learned Judge however dismissed the suit holding that the property in dispute was the property of Thakardawara Narsingh Ji Mnharaj which had been given by Command Order dated 24th Magh 1970 (Bikarmi) for its maintenance and upkeep; and the Governor, in pursuance of that order, had directed on 22-2-2000 (Bikrami) the removal of the name of the plaintiffs and had. appointed Bhagat Ram only as the Mohatamim of the temple. In pursuance of that order of the Governor, mutation No. 453 had been attested in his favour on 19th Poh 2006 which had become final. The plaintiffs had gone in revision to the Financial Commissioner against that mutation, that also was dismissed on 24-3-1965; hence the plaintiffs were not entitle to any share in the property keeping in view Ailan No. 13 of 1964 (Bikrami) dated 3rd Assuj 1964. Published at pages 310 and 311 of Majmua Zabata Mal Volume II. Against this decree the plaintiffs have come up in appeal to this Court.
5. We have heard the learned counsel for the appellants. The respondent remained ex-parte and we have given our anxious consideration to the facts of this case as well as the law involved in this case.
6. In so far as the two deceased plaintiffs are concerned, as the suit has been brought in their name long after their death and no legal representative of theirs has ever come to claim their share, the suit to the extent of the two deceased plaintiffs share viz; Di
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