Dismissed

Smt Asha Sharmaandors v. Mandir Shri Ladliji Andors

Rajasthan HC27 Sept 2018CW/17688/2016

Case brief

AI extract

What is this about?

In a writ petition challenging an interim injunction restraining petitioners-legal heirs from interfering with trust property, the High Court held that the registered Mahant has exclusive rights under the Rajasthan Public Trusts Act. The Court dismissed the writ petition and directed the Trial Court to conclude the main suit within 12 months.

What did the court decide?

Writ petition dismissed; impugned order upheld; direction given to Trial Court to conclude suit within 12 months.

Smt Asha Sharmaandors Vs Mandir Shri Ladliji Andors — Property and Title | Rajasthan HC (2018)

¶1

HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR

¶2

S.B. Civil Writ Petition No.17688/2016

¶3

Smt. Asha Sharma W/o S/o Late Shri Rajkishore Goswami aged about 65 years,

¶4

Ajay Sharma S/o Late Shri Rajkishore Goswami, aged about 47 years,

¶5

Pravesh Sharma S/o Late Shri Raj Kishore Goswami, aged about 44 years.

¶6

All are by Caste Brahmin R/o Mandir Shriladli Ji Ramganj Bazar, Jaipur

¶7

Kamal Kishore Sharma S/o Late Shri Rajkishore Goswami, aged about 37 years, resident of Mandir Shriladli Ji Ramganj Bazar Jaipur at present Sodala Jaipur

¶8

----Petitioners- Defendants

¶9

Versus

¶10

Mandir Shri Ladliji Ramganj Bazar, Jaipur through Savayat Trustee, Mehant Sanjay Goswami S/o Late Shri Brij Kishore Goswami, Ramganj Bazar, Jaipur

¶11

Sanjay Goswami S/o Late Shri Brij Kishore Goswami, By Caste Brahmin, Resident of Mandir Shri Ladliji, Ramganj Bazar, Jaipur

¶12

...Respondents- Plaintiffs

¶13

Ram Kishore Goswami S/o Late Shri Jugal Kishore Goswami, aged about 74 years, by caste Brahmin, Resident of Mandir Shriladli Ji Ramganj Bazar Jaipur

¶14

----Proforma Respondents

¶15

For Petitioner(s)	: Mr.M.M. Ranjan Senior Counsel with,
	Mr.Daulat Sharma & Mr.Parmendra Dadhich
For Respondent(s)	: Mr.Sudhanshu Kasliwal, Senior

¶16

(2 of 14)

¶17

[CW-17688/2016]

¶18

Counsel with Mr.Yellop Singh

¶19

Mr.Rajesh Kapoor

¶20

Mr.Laxmi Kant Sharma.

¶21

HON'BLE MR. JUSTICE ALOK SHARMA

¶22

Order

¶23

27/09/2018

¶24

Under challenge is the impugned order dated

¶25

29.11.2016 passed by the Additional District Judge No.13, Jaipur

¶26

Metropolitan (hereafter ‘the Appellate Court’) upsetting the order

¶27

dated 31.5.2016 passed by the Additional Civil Judge No.5, Jaipur

¶28

Metropolitan (hereafter ‘the Trial Court’) dismissing the

¶29

respondents-plaintiffs’ (hereafter ‘plaintiffs’) application under

¶30

Order 39 Rule 1 and 2 CPC and restraining the petitioners-

¶31

defendants (defendants) from interfering with the suit property

¶32

recorded in the name of the Mandir Shri Ladli Ji Ramganj Bazar

¶33

(hereafter ‘the Trust’) registered under the Rajasthan Public Trusts

¶34

Act, 1959 (hereafter ‘the Act of 1959’) of which Sanjay Goswami

¶35

was the recorded Mahant in the records of the Devasthan

¶36

(3 of 14)

¶37

[CW-17688/2016]

¶38

Department. The defendants were also restrained by the interim

¶39

injunction passed by the Appellate Court from obstructing the

¶40

Mahant—Sanjay Goswami in managing the affairs of the Trust

¶41

including the temple thereof. They were also injucted from

¶42

alienating the suit property. It was further directed by the Appellate Court that the rent of the shops, godowns, and

¶43

residential premises recorded as trust property being collected by

¶44

the defendants, be deposited in a joint bank account of the

¶45

defendants and the plaintiffs as also be current rent month to

¶46

month, and be withdrawn only with their consent of the parties or

¶47

otherwise by the order/s of the Court.

¶48

Mr.M.M. Ranjan, Senior Counsel appearing with

¶49

Mr.Daulat Sharma for the defendant submitted that the

¶50

registration of the suit property as a trust property is itself a

¶51

subject matter of multiple suits including one for partition filed at

¶52

Mathura, in the year 2005. Further a suit for cancellation of the

¶53

(4 of 14)

¶54

[CW-17688/2016]

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trust registered by the Devasthan Department under the Act of

¶56

1959 and declaration of the rights of the co-parceners in the suit

¶57

property has been filed at Jaipur. Interim orders of “status-quo”,

¶58

have been passed in the aforesaid suits and are presently in

¶59

currency. Mr.M.M. Ranjan submitted that even otherwise nothing

¶60

in the plaint and the application filed under Order 39 Rule 1 & 2 CPC filed by the plaintiffs in the underlying suit, to which the

¶61

present petition relates, was stated with regard to the plaintiff-

¶62

Sanjay Goswami acting as the Mahant of the trust property or otherwise engaged in management and the seva puja of the deity

¶63

in the temple of the Trust. Yet despite the trial court in its

¶64

considered discretion having dismissed the plaintiffs’ application

¶65

under Order 39 Rule 1 and 2 CPC on the aforesaid legally valid

¶66

grounds as no prima facie case was made out in their favour, nor

¶67

was balance of convenience, the Appellate Court has interfered

¶68

therewith without just cause arbitrarily superimposed its discretion

¶69

(5 of 14) [CW-17688/2016]

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on that of the trial court, passed an order of injunction against the

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defendants which operates in the nature of a final order and has

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the effect of displacing the defendant from his rights of being

¶73

engaged in the affairs of the suit property and seva puja at the

¶74

temple for decades. It has been submitted that in the circumstances this petition deserves to be allowed and the

¶75

impugned order dated 29.11.2016 passed by the Appellate Court

¶76

in the plaintiffs’ Civil Misc. Appeal No.32/2016 quashed and set

¶77

aside, while the order dated 31.5.2016 passed by the Trial Court

¶78

in Civil Misc. Appeal No.213/2006 (45/2012) deserves to be

¶79

restored.

¶80

Per contra, Mr.Sudhanshu Kasliwal Senior Counsel

¶81

appearing with Mr.Yellop Singh for the plaintiffs submitted that the

¶82

impugned order dated 29.11.2016 passed by the Appellate Court

¶83

is a well considered and detailed order interfering with the order

¶84

dated 31.5.2016 passed by the Trial Court for reasons of its

¶85

(6 of 14)

¶86

[CW-17688/2016]

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palpable perversity in overlooking the prima facie case as made

¶88

out by the plaintiffs, the balance of convenience obtaining in their

¶89

favour and the plaintiffs, a registered trust and its Mahant being denied their legal and statutory rights to manage its affairs and

¶90

engage in the seva puja of the deity while protecting the suit

¶91

property and the proceeds thereon from renting out of shops, godowns and residential premises for the benefit of the trust/

¶92

deity. It was submitted that the plaintiff—Trust was registered on

¶93

1.2.1966 by an order passed by the Assistant Commissioner,

¶94

Devasthan Department under Section 21 of the Act of 1959. A certificate of registration of the trust was issued by the Devasthan

¶95

Department on 5.4.1966. At the relevant time the sole trustee

¶96

was Jugal Kishore. In terms of form-VI appended to the Act of

¶97

1959, the mode of succession of the sole trustee of the trust has

¶98

been set out and is binding in law. Thereunder the sole trustee/

¶99

Mahant on his death is to be succeeded by his eldest son. Clause

¶100

(7 of 14)

¶101

[CW-17688/2016]

¶102

IV of form-6 appended to the Act of 1959 in respect of the plaintiff

¶103

trust categorically provides that none else (emphasis mine) other

¶104

than the eldest son of a deceased sole trustee/ Mahant would

¶105

have any right in the management and affairs of the trust and

¶106

thus act as Mahant. It was submitted that the elder son of Jugal Kishore, the then Mahant, one Brij Kishore suffered an incapacity

¶107

for reasons of which vide will dated 27.10.1986 executed by Jugal

¶108

Kishore it was stated that following his death, Sanjay Goswami,

¶109

the eldest son of Brij Kishore would succeed Jugal Kishore as the

¶110

Mahant subsequent to his death. Jugal Kishore expired on 1.1.1987. On an application then made to the Assistant

¶111

Commissioner, Devasthan Department under Section 23 of the Act

¶112

of 1959 on the strength of the mode of succession of the

¶113

registered trust and the will dated 27.10.1986 Sanjay Goswami

¶114

plaintiff No.2 was duly recognized as Mahant vide order dated

¶115

26.8.1987 in the records of the Devasthan Department. This after

¶116

(8 of 14)

¶117

[CW-17688/2016]

¶118

statutory procedure being followed and no objection to the Mahant

¶119

of Sanjay Goswami despite public notice. Even by the predecessor

¶120

of the petitioner defendants or Brij Kishore the other brother Ram

¶121

Kishore Goswami. In fact Sanjay Goswami executed a power of

¶122

attorney in favour of his older uncle Ram Kishore Goswami

¶123

(chacha)— the proforma defendants in the petition to act on his

¶124

behalf in the management of the trust and carry on the seva puja

¶125

of the deity. The predecessor in interest of the plaintiff— late Shri

¶126

Ram Kishore Goswami, the younger uncle (chacha) of Sanjay Goswami (Mahant) who had resided in the same trust, propriety

¶127

all along during his life till his death at no point of time objected

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either to Sanjay Goswami being entered as a Mahant of the trust

¶129

in the records of the Devasthan Department, the annuity by the

¶130

State being issued to him or the seva puja and the management

¶131

of the trust being carried out on the basis of Sanjay Goswami’s

¶132

power of attorney to Ram Kishore Goswami.

¶133

(9 of 14)

¶134

[CW-17688/2016]

¶135

Mr.Sudhanshu Kasliwal further submitted that in various

¶136

proceedings before different courts below for over two decades,

¶137

the older ‘chacha’ of the plaintiff No.2—Mahant, Sanjay Goswami,

¶138

Ram Kishore Goswami himself produced the power of attorney

¶139

executed in his favour by Mahant Sanjay Goswami to represent

¶140

the trust on his behalf.

¶141

The power of attorney dated 16.10.1999 was cancelled

¶142

on 29.6.2005. Litigation by the uncles of the mahant Sanjay

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Goswami, the predecessor in interest of the petitioner defendants

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Raj Kishore Goswami and proforma respondent in the petition

¶145

Ram Kishore Goswami ensued before various courts. Despite the

¶146

cancellation of power of attorney dated 16.10.1999 till then in

¶147

favour of Ram Kishore Goswami, Sanjay Goswami, the Mahant of

¶148

the trust was sought to be prevented from exercising his rights in

¶149

that capacity, managing the temple, and carrying on seva pooja of

¶150

(10 of 14)

¶151

[CW-17688/2016]

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the deity of the temple of the trust. The suit for injunction at his

¶153

instance was therefore filed.

¶154

Mr.Sudhanshu Kasliwal submitted that the aforesaid

¶155

facts indicate that the legal representatives of late Shri Raj Kishore Goswami, the younger chacha of Mahant Sanjay Goswami,

¶156

the petitioner defendants herein have no manner of right to interfere with the management of the plaintiff No.1—trust by

¶157

plaintiff No.2 Sanjay Goswami as purported co-parceners of the

¶158

trust property—an impossibility as the trust property entails the divestment of any pre-existing ownership and is vesting in the public for their beneficial ownership. Mr.Sudhanshu Kasliwal

¶159

submitted that whatever the worth of the suit for partition filed at

¶160

Mathura and the other suit filed at Jaipur, and despite order of

¶161

status quo, the finality of the recording of the trust property with

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the registered plaintiff-trust cannot be put to question at least at

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(11 of 14)

¶164

[CW-17688/2016]

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the interim stage nor the rights of the Mahant thereof recognized

¶166

by the Devasthan Department under the Act of 1959 questioned.

¶167

Heard the counsel for the defendants and the plaintiffs.

¶168

Perused the impugned order dated 29.11.2016 passed by the

¶169

Appellate Court as also the order dated 31.5.2016 passed by the

¶170

Trial Court which has been set aside therein.

¶171

I am of the considered view that prima facie the

¶172

plaintiffs have been able to make out a stronger case, to the

¶173

corresponding defence of the defendants. A public trust having

¶174

been registered and the property in dispute being in its corpus,

¶175

the mahant of the trust duly recognized by the Devasthan

¶176

Department under the Act of 1959, has a right to manage its

¶177

affairs and do seva puja at the trust’s temple to the exclusion of

¶178

any other, including those who earlier in any point of time

¶179

were acting as power of attorney—since cancelled. It is an

¶180

admitted fact that the predecessor in interest of the defendants

¶181

(12 of 14)

¶182

[CW-17688/2016]

¶183

had no point of time, albeit residing in the premises of the Mandir

¶184

Shri Ladli Ji Ramganj Bazar as the mahant Sanjay Goswami and

¶185

Ram Kishore Goswami were upto 2005 objected to the suit

¶186

property in issue being registered as a trust property or Sanjay

¶187

Goswami being recognized as its Mahant. Order of status quo in suits filed subsequent to the cancellation of power of attorney of

¶188

Ram Kishore Goswami on 29.6.2005 are limited to the alienation

¶189

of the suit property or creating third party rights therein and no

¶190

more. The affairs of trusts registered under the Act of 1959 as the

¶191

Trust Mandir Shri Ladli Ji Ramganj Bazar are regulated exclusively

¶192

under the said Act. Till today the registration of the plaintiff trust

¶193

obtains and Sanjay Goswami plaintiff No.2, recognized as its

¶194

Mahant by the Devasthan Department and receiving annuity from

¶195

the State on behalf of the Trust/ Mandir.

¶196

In view of the overall facts of the case, I am of the

¶197

considered view that a prima facie case and balance of

¶198

(13 of 14) [CW-17688/2016]

¶199

convenience indeed lie with the plaintiffs as the Appellate Court

¶200

has found and which the trial court without just cause failed to

¶201

recognize. The petitioner trust being the owner of the suit

¶202

property in the context of the factual position presently obtaining

¶203

will obviously suffer irreparable loss if its right to manage its

¶204

affairs and seva puja to the exclusion all others including the

¶205

defendants is not upheld at the interim stage.

¶206

The upshot of the above discussion is that, I am

¶207

disinclined to interfere with the impugned order passed by the

¶208

Appellate Court.

¶209

The petition is accordingly dismissed.

¶210

It is however made clear that any observation of this

¶211

Court in this order is relevant only at the interlocutory stage of the

¶212

suit and will not affect the trial in the suit pending before the

¶213

Court below. The Trial Court shall be free to adjudicate the issues

¶214

struck before it on the pleadings of the parties strictly in

¶215

(14 of 14)

¶216

[CW-17688/2016]

¶217

accordance with law on admissible evidence laid before it as also

¶218

the obtaining state of law.

¶219

Counsel for the parties agree that it would be in the

¶220

interest of justice and of the contesting parties themselves, if this

¶221

Court were to direct the Trial Court to dispose of the underlying

¶222

suit at an early date. Resultantly, the trial court is directed to

¶223

dispose of the underlying suit within a period of 12 months from

¶224

the date of presentation of a certified copy of this order. For

¶225

effectuating this order, the trial court should adhere to the observations of the Apex Court in the case of M/s. Shiv Cotex

¶226

Vs. Tirgun Auto Plast (P) Ltd. & Others [(2011) 9 SCC 678] ,

¶227

as also to Order 17 CPC on the issue and manner of grant of

¶228

adjournments, which should be refused when sought without good

¶229

reason.

¶230

(ALOK SHARMA), J

¶231

Himanshu/1

Smt Asha Sharmaandors v. Mandir Shri Ladliji Andors

Case brief

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Smt Asha Sharmaandors v. Mandir Shri Ladliji Andors

Case brief

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