KACHA KANTI SEVA SAMITY AND ANR.versusSHRI KACHA KANTI DEVI AND OS.

                  KACHA KANTI SEVA SAMJTY AND ANR.                                        A
                                 v.
                    SHRI KACHA KANTI DEVI AND OS.

                                  MARCH 28, 2003

         [S. RAJENDRA BABU AND DR. AR. LAKSHMANAN, JJ.]                                   B


           Religious endowment:

            Right to shebaitshir,Formalion of Samity in respect of temple-No
      appointment of shebait-Suil for declaration claiming right lo shebailship in        C
      temple-Held: Claimants as de facto shebail, having proved their possession
      of the endowed properly and exercised all fimc/ion of shebait, have right of
      shebaitship in temple-Also on the basis of the evidence adduced presumption
      available to them-However, general public including Samity will have free
      access lo temple to offer worship and for other religious and spritual activities   D
,   . as all constructions of buildings, tanks, well and electrification were done by
      public by receiving donations from various persons-Presumption-Evidence
      Act, 1872 Section 90.

           Appellant No.1-Samity was formed in respect of the temple in
     question. No person was appointed as shebait by the authority.                       E
     Respondents filed suit for declarations that deity installed in the temple
     in question having been gifted to their forefathers 200 years ago by the
     then king, they are the shebaits of the deity and that the appellants have
     no right to form appellant No.1-Samity and interfere with their right of
     shebaitship. Trial Court dismissed the suit as there was nothing to show             p
     that the deity was established by King or that respondent's forefather was
     appointed as a shebait and that the deity and its temple Were public
     endowments. Respondents filed an appeal which was allowed. Aggrieved
     appellants filed second appeal and High Court dismissed the same. Hence
     the present appeal. Appellant-Samity contended that both the Appellate
     Court and the High Court have committed a grievous error in interfering              G
     with the judgment of the trial Court; that the respondent's claim of the
     shebaitship of the deity is quite unknown and that it is in evidence that
     the public in general are offering seva/puja to the deity since its inception
     and there is absolutely no evidence to show that the public offered the puja
                                            99                                            H
    100                  SUPREME COURT REPORTS                   [2003] 3 S.C.R.

A with the permission of the respondents; and that the evidence adduced
    shows that the D11rga Mandap and a Chowkidar Shed, a charitable
    dispensary and an office building have been constructed by the appellants
    by the donations of the public within the compound of the temple of the
    deity and, therefore, the respondents have no manner of right of
B   ~hebaitship to the temple.


          Respondents contended that th1: findings rendered by the lower
    Appellate Court and also by the High Court are unassailable and that the
    respondents have proved beyond any doubt that they were in enjoyment
    of the right of shebaitship for a considerable period of time undisturbed
C   and to the exclusion of all other claimants.

          Partly allowing the appeal, the Court

           HELD: I. The respondents as de facto shebaits, have proved their
    possession of the endowed property and exercised all functions ofa shebait-
D   offering their services and pujas though, the legal title to property is
    lacking. Therefore, the respondents have the right to shebaitship of the
    suit temple. Under no circumstances they can be held as trespassers.
                                                                   1105-B, F, GI

          2.1. It is difficult to lay down any test or tests, which may be of
E universal application with regard to tht~ question as to whether a religious
    endowment is of a private nature or of a1 public nature. It has to be decided
    with reference to the facts proved in each case. In the context of
    respondents' right to shebaitship, they have produced two ancient
    documents from proper custody which were admitted in evidence. The
    originals of these documents were also seen by the Appellate Court. The
F   documents show that the name of 'S' appears to be there and that these
    are appointment letters showing the appointment of 'S' in the post of
    Deshmukhya with some magisterial powers by the King. 1104-B-DI
           1.2. The presumption under Section 90 of the Evidence Act was also
    available to the respondents. It is proved in evidence that the right claimed
G   by the respondents to shebaitship is in exclusion to all others. The
    respondents have adduced oral evidenc:e of witnesses who are the persons
    from different walks of life residing in the locality where appellant No. I
    is established. They have categorically stated that since the time of their
    maturity they have seen the present respondent performing the puja and
H   offering other services to the deity and were receiving the offerings made
   KA CHA KANT! SEVA SAMITY v. SHRI KA CHA KAN'ti DEVI [LAKSHMANAN, J.Jl 0 J

to the Goddess by the devotees. Person from Muslim community also                A
subscribed to the same view. Even in cross-examination nothing has been
elicited from them to discredit their evidence and, in particular, regarding
possession and the services rendered by them as shebaits. The appellants
have also not adduced any evidence to show that the job of shebaitship
was performed by any other individual or group of individuals as against         B
the claim of the respondents. The .appellants could not adduce evidence
to show the accrual of rights in their favour rather they admitted the joint
possession of the respondents till 1980. (104-D-F, H; 105-AJ

      2.3. Justice would demand protection of their rights. But it is in
evidence that all the movable properties and other constructions of the          C
building, tanks, well and electrificatio~1, etc. were done by the public by
receiving donations from various persons and the properties were donated
by the public to the deity and, therefore, the deity has become the absolute
owner of those properties as to be held by the respondents and appellant
as caretakers. Both the Appellate Court and the High Court have partially
decreed the suit of the respondents by declaring that the respondents are        D
the de facto shebaits of the temple in question and are entitled to maintain
such position and status without any interruption unless held guilty of any
misconduct. As rightly held by the Appellate Court, the public in general
including the contesting appellants would, however, have free access to
the suit premises in order to offer worship in the temple and for other          E
religious and spiritual activities. It is made clear that the respondents have
no right to restrain the appellants and the public from offering worship
in the temple and from making incidental development works in the temple
and offer the same as a gift to the temple. (105-8-EJ

      CIVIL APPELLATE JURISDICTION : Civil Appeal No. 6535 of 1997.              f
     From the Judgment and Order dated 1.4.1997 of the Gauhati High
Court at Assam in S.A. No. 136 of 1985.

      S.B. Sanyal and Avijit Bhattacharjee for the Appellants.
                                                                                 G
     N.R. Choudhury and Somnath Mukherjee, for the Respondents.

      The Judgment of the Court was delivered by

      DR. AR. LAKSHMANAN, J. This appeal is directed against the                 H
    102                    SUPREME COURT REPORTS                   [2003) 3 S.C.R.
A judgment and order dated 1.4.1997 passed by a single Judge of the Gauhati
    High Court in Second Appeal No. 136 of 1985 filed by the appellants herein
    challenging the judgment and order dated 17.4.1985 passed by the Assistant
    District Judge No. II at Silchar allowing Title Appeal No. 90 of 1983 filed
    by the respondents herein against the judgment dated 16.5 .1983 of the Sadar
    Munsif No. II at Silchar dismissing Titl<e Suit No. 88 of 1982 filed by the
B   respondents herein.

           The respondents herein filed Title Suit No. 88 of 1982 against the
    appellants herein for declarations that deity Sri Sri Kachakanti Devi installed
    in a temple at Udarband in Cachar District is their private deity gifted to one
C   of their forefathers 200 years ago by the then King of Cachar-Maharaja
    Krishna Chandra Dhevaj Narayan; that they are the shebaits of the said deity
    which they inherited from their forefathers and that the defendants in the suit,
    namely, the appellants herein have no right to form appellant No. 1 Samity.
    They also prayed for permanent injunction against the principal defendants.

D          In support of their claim of sh<ebaitship, the respondents/plaintiffs
    produced two documents, Exhibits 1 and 2, executed by the said Maharaja
    in 1824 in favour of one Sonaram Sarma. The respondents/plaintiffs further
    stated that in 1970 general public of Udarband formed a Committee known
    as "Mandir Construction Committee" aad this Committee constructed
    boundary walls and temple for the deity and that the appellants/de fondants
E   were interfering with the enjoyment of their rights as shebaits of the said
    deity.

           Defendant Nos. I and 2, i.e. the appellants herein, filed a joint written
    statement denying all material allegations in the plaint. According to them,
F   the deity in question was dedicated to the public in general and hence it was
    and still is a public endowment and that the documents filed by the respondents/
    plaintiffs have been created for the :mit and that the seat of the deity is
    situated at a public place on a Government land and that the suit has been
    filed at the instigation of some disgruntled politicians.

G          The learned Munsif dismissed the suit of the respondents herein holding
    that they were not shebaits and there was nothing to show that the deity was
    established by Cachar King or that forefather of the plaintiffs was appointed
    as a shebait. The learned Munsif further held that the deity and its temple
    were public endowments and the public used the same as a matter of right.

H         The respondents/plaintiffs herein filed Title Appeal No. 90 of 1983
       KACHA KANT! SEVA SAMITY v. SHRI KACHA KANT! DEVI [LAKSHMANAN, J.JI 03

    before the Assistant District Judge, Silchar against the judgment of the Trial    A
    Court. The learneJ Assistant District Judge allowed the appeal and set aside
    the judgment of the Munsif. The defendants/appellants herein filed Second
    Appeal No. 136 of 1985 before the Gauhati High Court against the judgment
i
    of reversal passed by the First Appellate Court. The High Court dismissed the
    Second Appeal holding that since there was a finding of shebaitship by the        B
    First Appellate Court, the impugned judgment required no interference. The
    respondents have examined as many witnesses while the contesting defendants
    have examined none.

          We heard Shri S.B. Sanyal, learned senior counsel appearing for the
    appellants and Shri N .R. Choudhary, learned counsel appearing for the            C·
    respondents. Both the learned counsel reiterated thi: contentions raised by the
    respective parties before the courts below. Our attention was also drawn to
    the pl~adings and all the evidence both oral and documentary.

          The question of law involved in this appeal which requires our
    consideration is, when there being no appointment as shebait by any authority, D
    whether pujari of a deity can become a shebait of such deity only because of
    the fact that the pujari performed pujas and acted as purohit for a long time.
    We have carefully gone through the pleadings, the evidence adduced-both
    oral and documentary and the arguments advanced by the counsel appearing
    for the respective pa1ties. Learned counsel for the appellants, while reiterating E
    the contentions raised before the courts below, has submitted that both the
    Appellate Court and the High Court have committed a grievous error in
    interfering with the well-considered judgment of the learned Munsif who for
    the cogent and convincing reasons recorded in his judgment has dismissed
    the suit. He would further submit that the claim of the shebaitship of the deity
    made by the plaintiffs is quite unknown and that it is in evidence that the F
    public in general are offering seva/puja to the deity since its inception and
    there is absolutely no evidence to show that the public offered the puja with
    the permission of the respondents/plaintiffs. The learned counsel for the
    appellants would further urge that the judgment of the learned Single Judge
    of the High Court is a result of total non-application of mind. According to G
    him, the evidence adduced in this case would show that the Durga Mandap
    and a Chowkidar shed, a charitable dispensary and an office building have
    been constructed by the defendants Samity by the donations of the public
    within the compound of the temple of the deity and, therefore, the respondents/
    plai~tiffs have no manner of right of shebaitship to the temple in question.
           .,
                                                                                      H
    104                    SUPREME COURT REPORTS                    [2003] 3 S.C.R.

A         Learned counsel for the respondents/plaintiffs would submit that the
    findings rendered by the lower Appellate Court and also by the High Court
    are unassailable and that the plaintiffs have proved beyond any doubt that
    they were in enjoyment of the right of shebaitship for a considerable period
    of time undisturbed and to the exclusion of all other claimants.

B        The question as to whether a religious endowment is of a private nature
   or of a public nature has to be decided with reference to the facts proved in
   each case. It is difficult to lay down any test or tests, which may be of
   universal application. In the context of their right to shebaitship, the
   respondents/plaintiffs have two ancient documents, Exhibits I and 2. Both
C the documents have been produced from proper custody. The originals of
  these documents were also seen by the Appellate Cou11. The documents
   Exhibit I(I) and Exhibit 2( I) show that the name of Sonaram Sarma
   Deshmukhya appears to be there and that these are appointment letters showing
  the appointment of Sonaram Sarma in the post of Deshmukhya with some
  magisterial powers by the king. Since the:se two documents have been produced
D from proper custody, these two documents were admitted in evidence. The
  presumption under Section 90 of the Evidence Act was also available to the
  respondents/plaintiffs. It is proved in evidence that the right claimed by the
  respondents/plaintiffs to shebaitship is in exclusion to all others. The
  respondents/plaintiffs have adduced oral evidence of witnesses PW-3, PW-5,
E PW·6, PW-8 and PW-9. They are the: persons from different walks of life
  residing in the locality where plaintiff No. I is established. They have
  categorically stated that since the time of their maturity they have seen the
  present respondents/plaintiffs performing the puja and offering other services
  to the deity and were receiving the offerings made to the Goddess by the
  devotees. PW-8 is a person from Muslim community who has also subscribed
F to the same view. Even in cross-examination nothing has been elicited from
  them to discredit their evidence and, in particular, regarding possession and
  the services rendered by them as shcbaits.

          Exhibit No. I is dated 1731 Sakabda 25 Kartika which corresponds to
G 1819 AD. Exhibit No. 2 is dated 1746 Sakabda month of Jaistha corresponding
    to 1231 BS which again corresponds to 1824 AD. It is an admitted position
    on the basis of the oral evidence given by the P\Vs, that the King Krishna
    Chandra ruled Cachar from the year 1780 to 181. 3 AD. The defendants have
    also not adduced any evidence to show that the job of shebaitship was
    performed by any other individual or group of individuals as against the
H   claim of the respondents/plaintiffs. The defendants/appellants could not adduce




                                       '                                       '
        KACHA KA'ITI SEVA SAMITY v. SHRI KACHA KANT! DEVI [LAKSHMANAN. J.Jl 05


r   evidence to show the accrual of rights in their favour rather they admitted the A
    joint possession of the respondents/plaintiffs till 1980, i.e., about two years
    next before the date of the suit, as the suit, was filed on 5.5.19.83. We are,
    therefore, of the opinion that the respondents/plaintiffs are entitled to the
     relief prayed for as they were in continuous possession and enjoyment of the
    property in question and offering their services and pujas and it should be B
    regarded in law as to de facto shebaitship. Under no circumstances they can
    be held as trespassers. Justice, in our opinion, would demand protection of
    their rights aforesaid. But it is in evidence that all the movable properties and
    other constructions of the building, tanks, well and electrification, etc. were
     done by the public by receiving donations from various persons and the
     properties were donated by the public to the deity and, therefore, the deity C
     has become the absolute owner of those properties as to be held by the
     respondents and defendants as caretakers. We are, therefore, of the opinion
    that both the Appellate Court and the High Court have partially decreed the
     plaintiff suit by declaring that the respondents/plaintiffs are the de facto
     shebaits of the temple in question and are entitled to maintain such position
     and status without any interruption unless held guilty of any misconduct. As D
     rightly held by the Appellate Court, the public in general including the
     contesting defendants/appellants would, however, have free access to the suit
     premises in order to offer worship in the temple and for other religious and
     spiritual activities. We make it clear that the respondents/plaintiffs have no
     right to restrain the defendants/appellants and the public from offering worship E
     in the temple and from making incidental development works etc. in the
     temple in question and offer the same as a gift to the temple.
                              '


          In the instant case, the respondents/plaintiffs, as de facto shebaits, have
    proved their possession of the endowed property and exercised all functions
    of a shebait though the legal title to property is lacking.                         F
          For all the aforesaid reasons, we allow the appeal in part and decreed
    the suit insofar as the respondents/plaintiffs right to shebaitship of the suit
    temple is concerned. However, we order no costs.

    N.J.                                                    Appeal pa11ly allowed.      G