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1985 Supreme(All) 414
IN THE HIGH COURT OF ALLAHABAD
N.N. MITHAL, J.
Tej Bahadur - Appellant
Versus
Radhey Shyam And Others - Respondents
S.A. No. 1659 of 1973
Decided On : 18-02-1985
For the Appellant : Akhilesh Pratap Singh
For the Respondent: N. Hada and S.S. Chaudhary.
A member of a family that established a family temple has the right to sue to protect the property belonging to the temple, even if he is not a formally appointed trustee.
Headnote:
TRUSTEESHIP - RIGHT TO SUE - FAMILY TEMPLE - MEMBER OF FAMILY - EASEMENT - RIGHT TO USE STAIRCASE - ADMISSION IN EARLIER LITIGATION - BINDING EFFECT - VALID ENDOWMENT - DECLARATION OF BINDING NATURE - RENUNCIATION OF OWNERSHIP - VALID OBJECT.
Fact of the Case:
Plaintiff, a member of a family that established a temple, filed a suit for a permanent injunction to restrain the Defendant from using a disputed staircase and land appurtenant to the temple. The Plaintiff alleged that the temple was a family temple and that the Defendant had no right to use the staircase or the land. The Defendant claimed that he had an easement right to use the staircase and that the Plaintiff had no right to sue as he was not a trustee of the temple.
Finding of the Court:
The courts below found that the property belonged to the temple and that the Plaintiff had a right to sue as a member of the family and a worshipper of the idol. The courts also found that the Defendant had no easement right to use the staircase.
Issues: 1. Whether the Plaintiff had the right to sue as a trustee of the temple. 2. Whether the Defendant had an easement right to use the staircase.
Ratio Decidendi: 1. A member of a family that established a family temple has the right to sue to protect the property belonging to the temple, even if he is not a formally appointed trustee. 2. An easement right to use property can only be established if the use is open, continuous, and uninterrupted for a long period of time. In this case, the Defendant failed to establish that he had an easement right to use the staircase.
Final Decision: The appeal was dismissed with costs.
N.N. Mithal, J.
In this second appeal by the Defendant No. 1, the only points urged before me are that the property in dispute did not belong to the temple and that the Plaintiff had no right to institute the suit as trustee thereof since he had failed that he had been ever appointed as trustee thereof.
2. ID short the suit of the Plaintiff was for a permanent injunction to restrain the Defendant from using the disputed stair case and the land appurtenant thereto. The Plaintiff alleged that the temple of Sri Laxmi Narain Ji Mahraj as family temple had been established by his fore-fathers in the village in question and Defendant No. 2 as the eldest member of the family was managing the same and the other family members were also co-trustees. Extensive properties were endowed in favour of the idol including the property shown as western gate of mandi of Moblaganj which had a stair case towards north as well as towards south of it. On both the sides of that gate, there were rows of shops and the Defendants' shop is situated just the next to the stair case to its north. According to the Plaintiff, this stair case belonged to the temple and the Defendant had no right of either using it for going to the top of his shop or to use the land in front of the flight of stairs towards its east.
3. The Defendant contested the suit and he claimed that the stair case was always in his user and he had a latrine over the roof of the shop which had no other passage except the aforesaid stair case. It is also contended that the Plaintiff bad no right to sue and in any case Defendant had easementary right of using the stair case.
4. Both the courts below have come to the conclusion that the property belong to the temple and for this they have mostly relied upon the own written statement filed by the Defendant in an earlier litigation with another person and his statement in the court in that suit wherein he had admitted that the property belongs to the temple. A faint effort was made before me also to suggest that this suit was not binding on the Defendant as it had been properly explained by the Appellant in his statement in the court below inasmuch as the statement was given at the instance of the Plaintiff himself who was his Pairokar in the earlier litigation. This part of the story has rightly not been believed by the courts below and I also can not agree with this submission. In that earlier litigation, there was no dispute about his stair case or the property belonging to the temple and as such there was no occasion for the Plaintiff to have prevailed upon the Defendant to make any such statement.
5. The trial court has recorded a finding that there is no trust deed as such the Plaintiff could not be the trustee of the temple but being a family temple and the Plaintiff being one of the members of the said family, it was held that be was entitled to institute the suit in order to prevent any damage being caused to the property belonging to the idol. Since the Plaintiff had impleaded Laxmi Narain the Manager of the temple, as Defendant and had alleged that he was not taking interest in the protection of idols property, it was held that the Plaintiff had a right to sue. The same view was upheld by the lower appellate court. According to the learned Counsel for the Appellant, the right to bring a suit on behalf of the deity or in respect of property attached to the temple vests only in the Shebait and where there are more than one Shebait of a particular endowment, then all of them must join in bringing the suit. There can not be any dispute about the legal position that a Shebait is entitled to bring a suit on behalf of the deity and in respect of property belonging to it. An idol though a juristic person, by its very nature can not act by itself and there must be some human agency who has to work for the protection of its interest. The Manager of the endowment or Shebait is normally the proper person recognised under law to uphold the ri
