Dismissed

Dhanesh Das v. Radhamohan Das and Anr.

Chhattisgarh HC4 Feb 2014SA/478/1998

Case brief

AI extract

What is this about?

In this second appeal under CPC Section 100, the High Court affirmed the first appellate decree dismissing the plaintiff's suit for declaration of temple title. The Court held that the plaintiff failed to prove the suit property was purchased with temple income. Evidence showed the property was bought in the deceased Mahant's personal name from ancestral/other sources, validating the will executed

What did the court decide?

The appeal stands dismissed, affirming the first appellate Court's decree dismissing the plaintiff's suit.

Dhanesh Das Vs Radhamohan Das and Anr. — Succession and Inheritance | Chhattisgarh HC (2014)

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IN THE HI'JH COURT OF JUDICATURF AT JABALPURJ‘VI F.) ‘ Secona^Appeal No. 4%g /1998 w:^mmwif APPELLANTPLAINTIFF z u Dhanesh pass, aged 40 years, Guru Late Ghanshyam^Dasa', Mahant and Samarakar,/, Temple Bhag'wansingh Radhakrishen^.situated in village ‘ , Pandariya, Teh311 Chhuikhadan , x ¥ Distt.Rajnandgaon. M .P o Var sus - RESPONDENTS : 1) Radhamohan» DaSt aged about 32 years, DEFENDANT s/o late Gonaldas^Vaishnav, occupa— ‘ tion Agrebuixture, r/o village ‘ ~Thakurtola, Tehsll Chhuikhadan Di stt.Ra jn‘andgaon, M .P . '2) State of D’LP. through^Collector Ra j nandgaonz. SECOND APPEAL UNDER SECTION 100 OF THE CODE OF CIVIL PROCEDURE .

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HIGH COURT OF CHHATTISGARH

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Single Bench:Hon’b1e Shri Justice San-‘Iay K	. Aqr	awal
Second Appeal No.478 of 1998
Appellant Dhanesh Das
versus X
Respondents Radhamohan another \|Das	and
Appéal under Section 100 of the Code of Civil 1908 ‘ y ‘ ‘ l	Proce	dure,
y Appearances ^=of the counsel:
appellant/plaintiff. Shri D.N.Prajapati, counsel for No.1/defendant No.1. 1 <br>Shri Rakesh Pandey, counsel l	respo for	ndent the
Shri Akhil Agrawal, Panel Lawyer	for	the
State/respondent No . 2/defendant No . 2 .

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ORAL JUDGMENT

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(Delivered on 5th February, 20l4) (

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(1) For the sake of convenience, the parties will be referred in the instant judgment as were referred in the suit.

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(2) This is an appeal by the plaintiff under Section 100 of the Code of Civil Procedure, 1908 (henceforth 'the CPC') challenging the judgment and decree dated 5—3—1998 passed by the Additional District Judge, Khairagarh'in Civil Appeal No.12-A/96 arising out of‘ the judgment and decree dated 26-3-l996 passed by Civil Judge Class—II, Khairagarh in Civil Suit x No . 61-A/94 .

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o .Y

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(3 villi This Court has framed the following substantial qu e? stions of law on 6—1l-l998: 1 \ 1 Whether the lower appellate Court was in reversing the finding of justified la the trial Court in favour of the ui appellant that the will executed by l1 Ghanshyamdas in favour of the respondent i No.1 was of no avail as the suit— i i property did not belong to.him? Whether ‘the Court-below rightly decreed the suit despite there were no revenue j entries showing that the suit property belonged to the respondent No.1, Sarvarakar of the temple? 3 Whether the lower appellate Court failed to see that the burden of proof was on the respondent to show that the suit— was the exclusive property of property late Ghanshyamdas and not that of temple?” ‘ (4) After hearing learned counsel appearing for the and with their consent, the above parties of law are substituted by substantial questions reframing the following substantial question of law for determination:

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“Whether the first appellate Court is in reversing the judgment and justified decree of the finding of the trial Court and thereby dismissing the suit holding that the scheduled suit property was purchased by late Ghanshyamdas from his own income?”

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(5) The matter is heard finally and judgment is d ictated.

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X (6)%The substantial question of law involved for l detérmination is as under: I l l"Whether the first appellate Court is justified in reversing the judgment and decree of the finding of the trial Court and I thereby dismissing the suit holding that the i I scheduled suit property was purchased by late Ghanshyamdas from his own income?”

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(7);Th facts in nutshell the relevant facts i V necessaryi for disposal of the appeal are as under: ‘ (8) 1‘ Plaintiff Dhaneshdas filed a suit for i deciaration that the scheduled suit property is owned by Bhagwan Shri Radhakrishna Mandir, Pandariya and the order of mutation dated l6—6—199l is null and void and the decree for possession and stating inter alia that he is the Mahant and Sarvarakar of Bhagwan Shri Radhakrishna Mandir, Pandariya as he is a Mundit Shishya of late Shri Mahant Ghanshyamdas 22—4—l991. It was further pleaded that defendant No.1 Radhamohan Das was a nephew of former Mahant Ghanshyamdas and the scheduled suit property was purchased by late Ghanshyamdas by registered sale1 deed dated 26-4—1965 from Shri Visambhar and it was further pleaded that scheduled suit land was out of the income received by him from the purchased temple, therefore, that property was the property of the temple it surprisingly.

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(9) It was also pleaded that the late Shri Ghanshyamdas to Mundit Shishya of earlier Mahant who by will dated 3—8—l967 given of‘his right title over the property of temple in favour of late Shri Ghanshyamdas as Shri Mahant died in the year 1968. It is the further case of the plaintiff that on 247—13990 late Shri Mahant Ghanshyamdas has executed a W“ wiIUl in favour of defendant No.1 with regard to the sui§t land and name has also been mutated in revenue records by order dated 16—6—1991 and appeal taken in the} higher Court has been dismissed on technical grdund and the relief to the extent of declaration of title in favour of Bhagwan Shri Radhakrishna Mandir , Pandariya has mentioned in the earlier paragraph was sought. Defendant No . l filed his wri‘tten statement before the trial Court resisting the claim made by the lai8ntiff stating inter alia that the plaintiff Dhanesh Das is not the Mundit 'Shishya of late Shri Ghanshyamdas and he was not appointed as Mahant and Sarvarakar by late Shri Ghanshyamdas . It was further pleaded that the scheduled suit property of late Shri Ghanshjyam Das and it was not the property of the temple. It was further pleaded that the late Shri Ghanshyamdas remained Poojari of the temple for 6—7 years and thereafter he was engaged in the cultivating his

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ancestral property and out of the property received fr<3gm .his ancestral property and performing pooja etc. in the temple of Jamindar Kaptan Lal. He has purchased the scheduled suit land and the will has duly been executed by Ghanshyamdas in favour of defendant No.1 and the suit is liable to be dismissed. l . V l ‘went (1¢) The parties into trial. The trial Court, onithe basis of pleadings of the parties, framed the i foilowing three issues and recorded the findings as mentionedi against the issues:

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‘1	wawmamww%?	aéT
2 n	wwmaqwi’r‘v” #Wgaw $W@W@W%@% wmzmwmmmw Wad§q€a§rmmakm swmwmwawamn‘rs‘?	mm WW%WW mpmwm hwéwmmmw m1? W a: mm%sama W‘s
‘3	ammqa‘nsmw?	WW

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The trial Court.held that the suit property belonged to Bhagwan Shri Radhakrishna Mandir, Pandariya and Ghanshyamdas had no right to execute a will as the land was purchased out of the income of Bhagwan Shri Radhakrishna Mandir, Pandariya and entitled for the relief.

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(ll) Feeling dissatisfied with the judgment and decree of the trial Court, the defendant No.l filed " ‘ I - ‘ ‘

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hi?‘ appeal before the first appellate Court and i challenged the judgment and decree passed by the trial Court. The first appellate Court by its impugned judgment and decree allowed the appeal and reversing the findings of the trial Court has held that the scheduled suit property was purchased by late Mahant Ghanshyamdas from his own income ~ reéé‘i'ved from the cultivation of ancestral property and, therefore, the will was rightly executed by late Shri Ghanshyamdas in favour of defendant No.1.

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(12) Questioning the judgment and decree passed by l the first appellate Court reversing the judgment and decree of the trial Court non-suiting the plaintiff, the present appeal has been filed under Section 100 of? the CPC, which has been admitted for final hearing an the substantial question of law framed has already been reproduced in paragraph l of the instant judgment^. (13) Shri Rakesh Pandey, learned counsel appearngi for the appellant/plaintiff would submit that the first appellate Court has fallen into serious legal error in holding that the scheduled suit property e was purchased by late Ghanshyamdas from his own ._income derived from the ancestral property and from x other sources and therefore, the judgment and decree

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passed by the first appellate Court deserves to be ? setI aside.

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(1L) Shri D.N.Prajapati, learned counsel appearing for respondent No.l/defendant No.1 would submit that the first appellate Court has rightly reversed the fipdings of the trial Court holding that the suit prioperty was purchased by Shri Ghanshyamdas from his . x own income which is duly proved^by defendant No.1.

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(1%5) I have heard learned counsel appearing for the 1 pairties and have perused the record with utmost circumspection^.

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(16) The question that falls for consideration in light of the substantial question of law framed is whether the late Mahant Ghanshyamdas purchased the scheduled suit property from the income received from the temple or from his own income derived from ancestral property and other related sources?

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(1'7)^The trial Court has held that the property was out of the income from the temple and the purchased first appellate Court has held that the property was from his income by Ghanshyamdas. In order purchased to ascertain the same, a perusal of the plaint would _ show that in paragraph 5 has specifically that the scheduled suit property was purchased by

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Ghanshyamdas out of the income received from the temple. Whereas, the defendant in his written statement in paragraphs 4 and 5 has pleaded that late Shri Mahant Ghanshyamdas remained Poojari of Bhagwan Shri Radhakrishna Mandir, Pandariya only for 6,—7 years, therefore, he came back to Pandariya and he was working as Poojari of Jamindar Kaptan and in l the'meanwhile was also looking after ancestral he p§roperty and out of the income received from working ajsr a Poojari and from the income derived from the 1 aEncestral lands he purchased the suit property and i as such the scheduled suit property was owned by Mahant Ghanshyamdas^. In order to prove his ‘stand taken before the (18) trial Court, plaintiff Dhanesh Das, aged about 41 l years examined himself as PW—l, Kaliram, aged about 45 years as PW—Z, Dhanwar, aged about 72—73 years as PW—3, Lal Dogendra Shah, aged about 74 years as PW—4 and Dhanraj, aged about 47 years as PW-5. If the testimonies of the aforesaid witnesses are examined, it is apparent that Dhanesh Das, aged about 41 years (PW—l) has simply stated that to purchase the suit land the property was received by him from the \ temple. So far as Kaliram (E ,/-2) is concerned, he is only about 45 years, who w‘s examined on 1—3—1995 and the sale-deed is of the year l965. Dhanwar (PW— “A

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3)“ who is resident of Pandariya, simply stated that late’i Shri Ghanshyamdas had no other work except Mahantship. He simply stated that he had no information about the source of the income of the late Shri Ghanshyamdas. Lal Dogendra Shah, aged about 74 years (PW-4) has not deposed anything about ‘ th e income of late Ghanshyamdas. Dhanraj, aged abl Vo ut 47 years .(PW—5) has also not deposed about the l ihcome .of Ghanshyamdas. These witnesses have been «v eixamined1 on behalf of the defendant. Radhamohan is g No.1 himself. All the witnesses of the defendant defendants have deposed that the property was by Ghanshyamdas out of his own income A purchased bare perusal of the sale—deed dated 26—4—1965 (Ex.P— 5) would show that purchaser of the property was Ghanshyamdas son of Tulsidas and in which has purchased the property in his own Ghanshyamdas name and it has not been purchased in the name of the temple and it has also not been mentioned that the property was purchased for the benefit of the temple and even father’s name has been mentioned as Tulsidas in the sale—deed and on the basis of the will, the^'name of defendant No.1 was recorded in the revenue record and the appeal has been dismissed. Thus, the property purchased was the property was by Ghanshyamdas from his own income and purchased

,.....‘ uv: “v

froin the income of ancestral property held by him. i It was incumbent upon the appellant/plaintiff to i ion brigng record to say that the property was i pur‘chased out of the income derived by Ghanshyamdas i from the temple. Initially burden to prove the fact that the scheduled suit property was purchased from the income of the temple has not been discharged by the§V§1aintiff. . Whereas the defendant No.l has brdught on record to show that the property was I purichased by Ghanshyamdas in his personal capacity i frdm his own income from the other sources. z Therefore, the plaintiff has miserably failed to prove the fact that the property was purchased out of the income of the temple. Thus, the first appellate Court has rightly reversed the findings of the trial Court holding that the plaintiff has failed to establish the purchase of the scheduled suit property from the income of the temple. Therefore, I affirm the finding of the first appellate Court andthe decree passed by the first appellate Court dismissing the suit of the plaintiff is‘ hereby affirmed. Consequently, the instant appeal stands dismissed. No order as to costs.

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(19)^A decree be drawn-up accordingly.

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SdlSanjay^K.Agrawal Judge

Dhanesh Das v. Radhamohan Das and Anr.

Case brief

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Dhanesh Das v. Radhamohan Das and Anr.

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