SHINGHAL, J. -
(1.) THERE is an old temple of Shri Jagannathji in Jaipur city, the particulars of which have been given in paragraph 1 of the plaint and site plan Ex. 1. On the right hand side is the "nij mandir" of the main abode of the idol, while towards the left is a well and behind it there are residential quarters. A portion of the residential premises, in the front part of the building, just behind the well, is admittedly in the occupation of Gheesilal who has been examined as a witness on behalf of the plaintiffs. This Gheesilal was once discharging the duties of "pujari" and the portion occupied by him has been shown in green chalk. THERE is no dispute about it. The plaintiffs instituted their suit for possession of the rest of the premises on the ground that the entire building and the temple were founded by their ancestors and the ancestors of the proforma defendants Nos. 2 to 7 who also appointed "pujari" for the "seva puja" of the temple. In support of this contention, the plaintiffs made a reference to certain documents executed by the "pujaris" in favour of their ancestors and pleaded that Smt. Chandri, widow of Lachhminarayan, was the last "pujarin". She died on Jeth Bad 30, Smt. 2012, and the plaintiffs felt aggrieved because, thereafter, defendant Lalit Kishore started performing "seva puja" and took possession of the building as well as the movable property of the temple without any authority. According to the plaintiffs, Lalit Kishore made certain unauthorised alterations also in the premises, started using the electric current indiscriminately, obtained a water connection and started tethering his cows in the temple which caused obstruction to the worshippers. They also pleaded that the defendant was not performing "seva puja" properly and had established his ownership on the temple in an unauthorised manner. Claiming, further, that they themselves were the descendants of the founders and the "shebaits" of the temple, the plaintiffs prayed for delivery of possession of the temple properties, removal of the alterations and the water connection, and the issue of a perpetual injunction restraning defendant Lalit Kishore from tying his cattle and making any alteration whatsoever in the temple property.
(2.) DEFENDANT Lalit Kishore denied the claim. He pleaded that the residential portion of the building had been built by his ancestors and that it was quite separate from the temple. The plaintiffs' claim regarding the appointment of "pujaris" was also denied and it was pleaded that Smt. Chandri was not merely a "pujarin" but a "shebait" of the temple. Further, the defendant claimed that he was performing "seva puja" from the time of Smt, Chandri, for which the charity department of the former Jaipur state allowanced him at the rate of Rs. 17/- per month with effect from May 2, 1942. The defendant claimed that he was "in possession of the temple for nearly 16 years as its "shebait". He denied that he had acted in an improper manner. Certain other pleas were also taken, but it is not necessary to refer to them for purposes of the present appeal because the case has been argued before me only with reference to the claim of the plaintiffs that they were the descendants of the founders of the religious endowment in question, and the counter-claim that defendant Lalit Kishore was the sole "shebait" of the temple and that the residential premises belonged to him as they had been built by his ancestors.
A number of issues were framed in the trial court. The learned Additional Munsiff of Jaipur reached the conclusion that the ancestors of one Gendilal, through whom the defendant claimed the property, could be said to be the joint founders of the endowment along with the ancestors of the plaintiffs, but that the plaintiffs were not the "shebaits" of the temple after the death of Gendilal, and that Smt. Chandri was in possession and management of the temple thereafter. He further held that the plaintiffs had not succeeded in proving that the residential portion of the temple was constructed by their ancestors. He found that defendant Lalit Kishore was in possession of the temple and was performing "seva puja" even during the life time of Smt. Chandri, He went on to hold that the line of Gendilal did not become extinct after his death, and he seems to have taken the view that defendant Lalit Kishore was entitled to succeed to the shebaitship after Smt. Chandri's death. The learned Additional Munsiff therefore repelled the contention that defendant Lalit Kishore had taken unlawful possession of the temple. In this view of the matter, he dismissed the suit on November 30, 1959. The plaintiffs preferred an appeal which was decided by the learned Senior Civil Judge of Jaipur city, on December 23, 1961. He held that the plaintiffs had succeeded in proving their case, and decreed the suit. Defendant Lalit Kishore feels aggrieved against that judgment and has preferred this second appeal.
It has not been disputed in this Court that the portion of the building containing the main temple situated towards the south (right side), is an old religious endowment in which the idol of Shri Jagannathji has been installed and that it vests in and belongs to the deity. It has also not been disputed that the building of the temple was constructed by the ancestors of the plaintiffs and the proforma defendants almost a hundred years ago. What has been urged is that the plaintiffs' ancestors ware not the sole founders of the endowment, and that the ancestors of defendant Lalit Kishore were also co-founders because they contributed to it by "bringing" the idol of Shri Jagannathji for installation. The first important question for consideration is whether the claim of the defendant that he was the successor of the co-founders of the endowment is correct. The other question is whether the plaintiffs were the only "shebaits" of the temple. In order to appreciate the controversy, it is necessary to mention the genealogy of those who had admittedly functioned as "pujaris" of the temple over a long period of time. Fortunately, there is no dispute regarding the genealogy now and it is as follow - Sawainath Shankar Raghunath Chhotelal Lachhminarayan (came in adoption) Smt. Chandri Chhaganlal alias Champalal Gendilal (went in adoption to Chhaganlal) Gendilal (adopted) Lachhminarayan was not the natural son of Raghunath. He was the son of Chajjuram, as will appear from the following table which is also admitted as correct - Chajjuram Lachhminarayan (went in adoption to Raghunath) Jagannath Bhonrilal Lalit Kishore (defendant) Lachhminarayans' father was not in the line of Sawainath or Shanker, so that it is beyond dispute now that by birth defendant Lalit Kishore did not belong to the family of Sawainath or Shanker. I may also mention here that it is further admitted that Lachhminarayan died in Smt. 1966 and his son Gendilal, who had gone in adoption to Chhaganlal, died in 1969. Smt. Chandri, widow of Lachminaryan, survived all the male descendants of Sawainath and Shanker. She died in Smt. 2012. As I shall show presently, these facts are of considerable importance in deciding the points in controversy in this appeal.
The plaintiffs have relied mainly on documents Exs. 1 to 6. It has been argued by the learned counsel for the defendant-appellant that the learned Judge of the lower appellate court committed an error of law and fact in holding that the evidence on the record was sufficient to prove that documents Exs. 1, 2 and 4 had been proved to be genuine. According to the learned counsel, no presumption about the genuineness of these documents could be raised under sec. 90 of the Evidence Act because the plaintiffs led evidence and failed to establish their execution. It has further been argued that document Ex. 1 was inadmissible in evidence as it did not concern the defendant and that it was not read correctly by the court below. It has therefore been urged that this Court should re-assess the evidence on the record.
Who founded the temple and made the endowment in question is the first point for decision in this case? The plaintiffs have relied on documentary evidence which is of considerable importance and I shall examine it in its proper chronological order with due regard to the criticism of the learned counsel for the appellant.
The first in point of time is document Ex. 2 which is dated Bhadwa Sudi 11, Smt. 1932. It has been written on stamped paper and purports to be executed by Chhotelal, Chhaganlal, Raghunath and Lachhminarayan, descendants of Sawainath and Shanker, in favour of the ancestors of the plaintiffs. In the document, the four executants admitted that the temple of Shri Jagannathji had been built by the ancestor of the plaintiffs and that it had been given to the ancestors of the executants for carrying on the "puja" of the temple and that they had performed the "seva puja" properly. They further stated that they had become old and so Chhotelal had adopted Chhaganlal while Raghunath had adopted Lachhminarayan who would carry on the "seva puja" according to their turns or "osras". Then it was stated that the offerings of the temple belonged to the deity, and so also the property mentioned in the document. The executants gave an assurance that they would continue to do "seva puja" properly/but that if anything was done improperly, it would be open to the ancestors of the plaintiffs to bring round the delinquents, failing which the ancestors of the plaintiffs were free to do what they liked as they were the "maliks" or owners. This document is therefore of considerable importance for it goes to prove that the ancestors of the plaintiffs were the only founders of the temple and that the executants were mere "pujaris" who were liable to dismissal if they acted improperly and did not mend themselves.
It has been strenuously urged by Mr. Tewari that this document Ex. 2 should not be read in evidence because its execution has not been proved, and also because it was not signed by Raghunath and Lachhminarayan but by some one else. Besides, it has been argued that a presumption regarding the genuineness of the document could not have been raised under sec. 90 of the Evidence Act because the plaintiffs did not make any such request in the trial court and, on the other hand, led evidence to prove its execution. The learned counsel has placed reliance on Deputy Commissioner Lucknow vs. Chandra Kishore Tewari (l) Surendra Nath Rath vs. Shambhu Nath Dobey (2), and Ramchandra vs. Usmangani (3) to support his argument.
It is admitted however that even though the plaintiffs did not initially make an application requesting the trial court to raise a presumption u/sec. 90 of the Evidence Act regarding the genuineness of document Ex. 2, they made such a request towards the close of the trial, and it cannot be said that the court was debarred from raising the presumption simply because the plaintiffs did not make their application earlier, or led evidence to prove the execution of the document. The correct view appears to be that in such a case if there is nothing to cast a doubt about the genuineness of the document, and if it can not be said that the belated request for raising the presumption has caused any prejudice to the defendant,, there is nothing to prevent the court from presuming the genuineness of the document under sec. 90 of the Evidence Act. I may in this connection make a reference to Munshi Ram and others vs. Thakar Dass and others (4) which supports this view. The facts of Deputy Commissioner Lucknow vs. Chandra Kishore Tewari and others (l), Surendra Nath and others vs. Sambhu Nath Dobey and others (2) and Ramchandra vs. Usmangani (3) were different because in those cases the party producing the document did not at all rely on the presumption of its genuineness under sec. 90 of the Evidence Act and adduced evidence to prove its execution which was disbelieved by the court. So when, on a consideration the evidence the court took the view that the document was not genuine and was open to grave suspicion, it was only natural that it should have reached the conclusion that it could not raise a presumption about the genuineness of such a document simply because it was more than 30 years old. In the present case, however, there is no reason to think that Ex. 2 is not a genuine document and that a presumption should not be raised in its favour under sec. 90. The document has been produced from proper custody inasmuch as it has been tendered in evidence by the plaintiffs, and it is undoubtedly more than 30 years old having been written in S. 1932. What is all the more important is that the document has been quoted in extenso in "robkar" Ex. 6 dated August 31, 1908 the genuineness of which has not been doubted before me. The "robkar" is of the Municipal Committee of Jaipur relating to the claim of Chhaganlal son of Chhotelal, for the grant of an allowance of Rs. 17/- from the State for the "seva puja" of the temple. The iqrarnama" (Ex. 2) was taken in evidence in those proceedings in the presence of Lachhminarayan, and it the instance of no less a person than Chhaganlal alias Champalal through whom defendant Lalit Kishore now claims to be the co-founder and the "shebait" of the temple. The reproduction of document Ex. 2 in the "robkar" is therefore a relevant fact under sec. 35 of the Evidence Act, for it is an entry in a public record stating a fact in issue or a relevant fact and the entry has been made by the public servants in the discharge of their official duty. It will be sufficient to refer, in this connection, to Bishambhar Singh and others vs. State of Orissa and another (5) where it was held that the recital of the "ekrarnama" and its terms in an ancient public document like the "rubakari" whose authenticity had not been doubted furnished strong evidence of the existence and genuineness of the "ekrar-nama" and its terms. I have therefore no hesitation in holding that Ex. 2 is a genuine document and that its contents are correct.
The argument that the document (Ex. 2) has not been executed by Raghunath and Lachminarayan because it has been signed by one Chajjuram at their request and on their behalf is also quite futile. It is true that it was normally the duty of the plaintiffs to prove the authority of Chajjuram in this respect, but, as I have stated, the fact that the document was made use of by Lachminarayan and Chhaganlal alias Champalal for the purpose of claiming the allowance from the State of Jaipur shows that it was admitted to be a genuine document by them and as defendant Lalit Kishore claims the suit properties through them, there is no reason why he should be heard to say that Ex. 2 is not a genuine document. As it is, Ex. 2 is a very important document which completely negatives the defence that the temple was founded by the descendants of Sawainath and Shanker. On the other hand, it satisfactorily proves that it was exclusively founded by the ancestors of the plaintiffs and that the descendants of Sawainath and Shanker were no more than mere "pujaris".
Although document Ex. 1 is the next important document in point of time, I shall now consider the evidentiary value of document Ex. 4 because it makes a reference to document Ex. 2 and has also been extensively quoted in "robkar" Ex. 6 referred to above. Ex. 4 is a document which purports to have been executed by Lachminarayan son of Raghunath, on Posh sud 4, S. 1957 (December 25, 1900)) in favour of the ancestors of the plaintiffs. It has been stated in the document that the temple had been built by the ancestors of the plaintiffs and that the ancestors of executant Lachhminarayan had only been kept for purposes of "seva puja", which they were performing according to their turns or "osras", on behalf of the founders. An assurance was then given by Lachhminarayan that the income of the temple would be utilised for repairs of the temple and the well and that no part of it would be spent without the permission of the founders. It was reiterated in the document that some irregularities had been committed for which the executant asked for pardon. He also gave the assurance that such irregularities would not be committed again. Further, it was made quite clear that if any irregularity was committed it would be quite open to the founders to make any other arrangement that they liked and that Lachhminarayan would have no objection to it.
Thus this document is also of considerable importance - the more so because it reiterates the existence and correctness of document Ex. 2 of Bhadwa sud 11, S. 1932. It therefore leaves no room for doubt that the ancestors of the plaintiffs were the only founders of the endowment and that the descendants of Sawainath and Shanker merely carried on "seva puja" and were liable to removal.
It has been argued that I should leave document Ex. 4 also out of consideration for the reasons that the plaintiffs did not initially apply for the raising of a presumption under S. 90 of the Evidence Act and failed to prove the execution of the document although they examined two witnesses in that respect. Apart from the fact that there is no good reason for disbelieving the statements of the witnesses who have been examined for proving the genuineness of document Ex. 4, I am inclined to believe it for the same important reasons for which I have placed reliance on document Ex. 2 as both of these documents have been reproduced in "robkar" Ex. 6 of August 31, 1908 to which reference has been made above, and were relied upon as genuine by those through whom defendant Lalit Kishore claims the property.
(3.) IT has therefore been satisfactorily proved that the religious endowment in question was founded by the ancestors of the plaintiffs and that the descendants of Sawainath were mere "pujaris".
There is however other evidence on the point and I shall refer to it briefly. Ex. 1 is a document dated Bhadwa Bad 12, Smt. 1933. It purports to have been executed by Chhotelal son-in-law of Chhotelal son of Shanker and grand-son of Sawainath referred to in the genealogy given above. The document shows that this Chhotelal (son-in-law of "pujari" Chhotelal) was anxious to reside in a portion of the residential part of the building of the temple and his father-in-law Chhotelal "pujari" son of Shanker was prepared to allow him to live in it. That however required the consent of the founders, and therefore Chhotelal son-in-law of Chhote Lal "pujari" executed document Ex. 1 in favour of the ancestors of the plaintiffs. He stated in it that the temple had been built by the ancestors of the plaintiffs and that out of the house adjoining the well, his father-in-law Chhotelal had given him some portion for residence. The premises so allotted to the executant were then described in the document and it was further stated that the portion given to the executant would be held by him for the purpose of residence, that he will not be entitled to sell or mortgage it and that, in return he shall carry on "seva puja" of the temple after the death of his father-in-law Chhotelal. Thus Ex. 1 not only shows that the temple was built and founded by the ancestors of the plaintiffs, but also that the residential part of it formed part of that religious endowment and that no body had a right of residence in it without the permission of the founders, what to say of having a proprietory title over it. The document therefore indicates that the entire property was one religious endowment, as has been alleged by the plaintiffs, and was founded by their ancestors.
It may here be mentioned that the words
Nksvsyky Nxuyky iqtkjh dh** appear to have been interpolated in document Ex, 1 after the racial that the temple had been built by the ancestors of the son and grand-son of Jagannath and that there was a building or a house near its well. This interpolation is obvious to the naked eye because the ink and the hand-writing are quite different. Moreover, if the interpolated words had really been written in the document at the time of its execution, that would have shown that the residential premises referred to in it were the property of chhotelal and Chhaganlal "pujaris"and in that case it would not at all have been necessary for the executant of the document to give any undertaking to the son and grand-son of Modi Jagannath for, in that event, they would have no concern with the building. I have therefore left out the interpolation altogether and read the document as stands without it.
An argument has been advanced that I should leave Ex. 1 out of consideration far the reasons that it is also an old document about which the plaintiffs did not apply for the raising of a presumption under sec. 90 of the Evidence Act, and because it cannot be said to have been executed by the predecessors-in-title of defendant Lalit Kishore so as to bind him. These arguments are, however, of no avail. I find from the record that the document has been proved by the statement of Gheesilal, for it was his father who executed it. There is no reason to disbelieve Gheesilal on this point. Then there is the statement of Sunderlal P. W. 2 also about the execution of this document. The document is more than 30 years old and it is not disputed that it has come from proper custody. As in the case of document Exs. 2 and 4, I am of the view that a presumption about its genuineness should be raised under sec. 90 of the Evidence Act also. Even the learned Munsiff reached the conclusion that the execution of this document had been satisfactorily proved, and there is no reason to take a contrary view. The question is how the document could be said to be admissible in evidence? The answer is that the document is admissible under sec. 11 (2) of the Evidence Act for it makes the existence of the fact in issue, namely, that the premises belonged to the temple and formed a part of the endowment founded by the ancestors of the plaintiffs, highly probable. The document is also admissible u/s. 13 of the Evidence Act because it was a transaction or a particular instance in which the right of the plaintiffs' ancestors to the property was recognised as far back as Smt. 1933. So even though Ex. 1 is not conclusive evidence, it is admissible like any other fact and, when it is weighed along with other evidence referred to above, it leaves no room for doubt that the conclusion that the entire building was constructed by the ancestors of the plaintiffs and formed part of the religious endowment is correct and irresistible.
I may now refer to document Ex. 3 which is a judgment of the court of Munsiff, Jaipur, dated 20-7-1912. It was given in a suit filed by the ancestors of the present plaintiffs against Gendilal, natural s/o Lachhminarayan and heir of chhagan Lal alias Champalal. It appears that Gendilal repaired the roof of the kitchen of the temple by putting some slab on it. The plaintiffs in that suit, who, it is not disputed, were the ancestors of the present plaintiffs, objected to the construction on the ground that it had been undertaken without their permission. It was clearly admitted by Gendilal in that suit that the temple belonged to the plaintiffs and he gave the undertaking that he would not make any repairs without their permission, in future. The Munsiff held that the temple belonged to the plaintiffs and that Gendilal was only a "pujari". A consent decree was given that Gendilal shall take the permission of the plaintiffs before undertaking any repairs. This document also therefore goes to prove that the temple was founded by the ancestors of the plaintiffs and it re-inforces the conclusion to which I have arrived on the strength of the other documents.