CASE NO.:
Appeal (civil) 865 of 1973
PETITIONER:
PT. SHAMBOO NATH TIKOO AND OTHERS
RESPONDENT:
SARDAR GIAN SINGH AND OTHERS
DATE OF JUDGMENT: 30/06/1995
BENCH:
K. RAMASWAMY & N. VENKATACHALA
JUDGMENT:
1995 (1) Suppl. SCR 692
The Judgment of the Court was delivered by
VENKATACHALA, J. Appellants were the plaintiffs while respondents were
defendants in Civil Original Suit No. 20 of 1958 filed in the High Court of
Jammu and Kashmir in respect of Martand Shrine in Anantnag District. Decree
sought for in the suit was for grant of permanent injunction to restrain
the defendants, from interfering with plaintiffs’ possession of lands
measuring 19 Kanals 12 Marlas in Survy Plots 1424/4, 1962/1424/4 and
2304/1143/1 measuring (19 Kanals 6 Marlas, 6 Marlas) and 9 Kanals 18 Marlas
respectively and Dharamshallas, temples and springs at Tirath Martand,
Village Macha Bhawan, Tehsil Anantnag; from obstructing Hindus, of their
worship of gods in the Temples or of their performance of religious
ceremonies at the springs and putting up any constructions on the disputed
lands; and for ejectment of the defendants from two rooms (converted into
three rooms) out of six room of the Dharamshalla on the southern side of
the springs of Martand. Decree so sought for in the suit was granted
limited to the extent of restraining defendants by permanent injunction
from interfering in any way with the performance of religious ceremonies by
Hindus at the three springs (Kamal Kuad, Bimal Kund and Gauri Kund), or
their conducting of pujas in the temples and of holding Dewans in the open
space north of the springs towards Pahalgam side on the occasions of Mal
Mas, Ban Mas, Suraj Grahan, Chand Grahan, Soma Wad Amawas (Amawas Falling
on Mon-day), Amar Nath Jee Yatara Period and Vijay Saptami (7th day of
Hindus month falling on Sunday), and of plaintiffs’ possession of the
building situated to the north of Dharamshalla towards Pahalgam Road and
from erecting any Gurudwara at the Martand premises. But, decree was
refused as regards ejectment of defendants from the two rooms (converted
into three rooms) of Dharamshalla in their possession as also of permanent
injunction sought for in respect of four marlas of the land in Plot No.
2304/1143/1.
The said decree in the suit was questioned by the plaintiffs in the First
Appeal No. 83/67 filed by them in the same High Court to the extent it did
not grant certain reliefs while the same was questioned by the defendants
insofar it has granted certain reliefs against them by filing Civil First
Appeal No. 87/67. A Division Bench comprised of Mian Jalal-ud-Din and Anant
Singh, JJ, heard the said two appeals having clubbed them together. Since
the learned Judges who rendered separate judgments in those appeals failed
to reach an agreement on two of the points that arose for their
consideration therein, they requested the Hon’ble Chief Justice, to refer
the two points on which they had not agreed, to a third Judge for his
opinion thereon by making the following order:
“As may learned brother Anant Singh J, and myself have not agreed in our
respective judgments to the points relating to questions of adverse
possession and the right of holding Dewans by the defendants, the matter
may, therefore, be placed before my Lord Hon’ble the Chief Justice for
referring these points to a third Judge to be nominated by his Lordships.”
Mufti Baha-ud-din Farooqik, J. being the third Judge to whom the said two
points were referred for his opinion, adverts to those points in his
judgment thus:
Anant Singh, J. held that the possession of the defendants over the two
rooms in the southern Dharamshalla was permissive and could be revoked by
the plaintiffs as successors of Dharmarth. As regards holding of Dewans on
the open space he held that the use could be based on custom but in the
absence of any reliable evidence showing that the Dewans were held every
year on the specified occasion and were so held as of right from times
immemorial no right could be found in favour of the defendants. On this
view he held that the finding of the learned Single Judge on these two
items should be set aside.
Mian Jalal-ud-Din, J., however, expressed a contrary opinion, he held that
the defendants were in possession of the two rooms in the southern
Dharamshalla in their own right and in the alternative by adverse
possession, As regards the holding of Dewans on the open space he held that
the Sikhs have been holding the same for the last over fifty years to the
knowledge of the plaintiffs and without any objection from them on there
specified occasions namely Baisakhi, Daswi and Chatti Padshahi and that
this was sufficient to disentitle the plaintiffs from claiming a relief for
permanent injunction as would be derogatory to the holding of Dewans by
Sikhs on these occasions.”
What, therefore, according to Farooqi, J. the third Judge, the points in
the appeal on which Anant Singh, J. and Mian.Jalal-ud- Din, J. had not
agreed upon and which were referred for his opinion as that relating to
adverse possession and as that relating to right to adverse possession and
as that relating to right of holding Dewans by defendants, were these:
1. Whether the possession of defendants of the two rooms in the southern
Dharamshalla was permissive and hence revokable by the plaintiffs as
successors of Dharmarth, as held by Anant Singh, J. or whether the
possession of defendants of the two rooms in the southern Dharamsalla was
that held in their own right or in the alternative by adverse possession as
held by Mian. Jalal-ud-Din, J.
2. Whether the defendants had no right to hold Dewans in open space to the
north the springs towards Pahalgam side on the basis of custom, since no
reliable evidence was adduced for showing that Dewans were held every year
on specific occasions and from times immemorial, as held by Anant Singh, J,
or whether the plaintiffs were disentitled to claim permanent injunction
against defendants for holding Dewans on that open space OB three specific
occasions, Baisakhi, Daswi and Chatti Padshahi as such Dewans had been held
for over SO years to the knowledge of the plaintiffs and without any
objection from them as held by Mian Jalal-ud-Din, J.
Opinion of Farooqi, J., the third Judge on Point-1 above, was stated thus:
The Maharaja Pratap Singh, a sovereign ruler, who was entitled to deal with
Dharamshalla in any manner he liked, dedicated two rooms of the
Dharamshalla to Sikhs, Such dedication was not withdrawn by the Maharaja at
any time. The mere fact that receipt, Ext, PW. 3/1 includes the entire
Dharamshalla as one of the properties transferred to Prohit Sabha by
Dharmarth would not affect the legal position of dedication in favour of
Sikhs. The claim of the plaintiffs for two rooms based on permissive
possession was false. The plaintiffs cannot succeed in getting possession
of the rooms even if it is assumed they had title to the same, in as much
as, the suit for possession of rooms not having been filed within 12 years
from the date of dispossession was barred by Article 142 of the Limitation
Act, 1908, Even otherwise, the defendants had proved that they had acquired
title to the property by adverse possession by the time of filing of the
suit.
Opinion of Farooqi, J., the third Judge, on Point-2, above, was stated
thus:
The defendants had shown that the Sikhs had a right of easement over the
vacant space to its user for religious congregation on three specific
occasions, namely, Baisakhi, Daswi and Chatti Padshahi, and a such
defendants’ right to use the space for conducting Dewans should be limited
to those three occasions.
Concurring opinions of the two Judges expressed on several points in their
separate judgments rendered in the appeals and the third Judge’s opinion
expressed in this judgment on the aforesaid two points referred for his
opinion, not only led to the dismissal of the plaintiffs first appeal
except to the extent of confining the holding of Dewans in the vacant space
by defendants to three specified occasions of Baisakhi, Daswi and Chatti
Padshahi, but also to the dismissal of defendants* First Appeal, as a
whole.
As against the said decree in the First appeals made by the High Court
allowing the plaintiffs’ First Appeal partly and dismissing the defendants’
Firs Appeal as a whole, although the plaintiffs have filed the present
appeal by special leave in this Court the defendants have not chosen to
file any such appeal. In other words, the decree made in the suit as
affirmed in appeals which stands unquestioned is the decree made against
the defendants restraining them by permanent injunction from interfering in
any way with the performance of religious ceremonies by Hindus at three
springs (Kamal Kund, Bimal Kund and Gauri Kund) in an ‘ area of two kanals
or of pujas by Hindus at the three temples to the extreme west of the
springs one of which is known as Suraj Mandir or of possession and
enjoyment of four rooms out of six rooms of Dharamshalla building in one
Kanal five marlas in plot No. 1424/4 and of possession and enjoyment of the
bath rooms and of the building used for Pathshalla purposes and of
possession and enjoyment of open space to the north of springs towards
Pahalgam Road which cover an area of 16 kanals and 6 marlas except when
used by defendants for Dewans on those occasions of Baisakhi, Daswi and
chatti Padshahi, all of the Shrine of Martand, Village Macha Bhawan, Tehsil
Anantnag, Hence, the decree in the suit as affirmed in First Appeals before
the High Court which is under challenge before this Court in the present
appeal filed by plaintiffs is limited to the following:
(1) Refusing to direct the ejectment of defendants from two rooms
(converted into three rooms) out of six rooms of Dharamshalla in one Kanal
five marlas of land in Plot No, 1424/4 by holding that the defendants have
acquired ownership in respect of it either because of their possession
being given by Maharaja Pratap Singh by way of grant or because of
acquisition on of title to the same by adverse possession; and
(2) Refusing to restrain defendants from holding Dewans in open space to
the north of the springs towards Pahalgam side on special occasion of
Baisakhi, Daswi and Chatti Padshahi, by recognising their easementary right
to hold such Dewans.
Therefore, what is questioned by the plaintiffs-appellants in this appeal
is the refusal of the Courts below to grant the decree in their suit
against the defendants for their ejectment from two rooms (converted into
three rooms) of the Dharamshalla and of non grant of permanent injunction
against the defendants in respect of holding of Dewans in open space on
Pahalgam side on three occasions of Baisakhi, Daswi and Chatti Padshahi,
recognising their easementary right thereto.
Before, we deal with the questions raised in the present appeal on behalf
of the plaintiffs in the suit, we may state how our attempt to bring about
an amicable settlement among contesting parties, could not succeed.
Plaintiffs expressed their willingness to forego their claim to the two
rooms (converted into three rooms) in Dharamshalla, which were in
occupation of defendants, if the defendants gave an undertaking to enter
the open space from Pahalgam side to hold their Dewans on three occasions
of Baisakhi, Daswi and Chatti Padshahi directly from Pahalgam Road and not
to seek to enter that open space through the premises of the shrine of
Martand where the springs are found. But, the plaintiffs did not agree for
the holding of Dewans in the open space by entering into the said open
space directly from Pahalgam road on the plea that the two rooms (now
converted into three rooms) of Dharamshalla are opened towards the Shrine
and the springs, and therefore they must be allowed to hold Dewans in the
open space crossing the premises of Martand Shrine. As the claim of the
defendants that the rooms in Dharamshalla were opened towards the shrine
was disputed by the plaintiffs, we appointed a Commissioner to hold a local
inspection and make a report. However, as it as reported to us by learned
counsel for parties that the atmosphere that prevailed at the spot was not
safe for the Commissioner to make a local inspection and that there was no
possibility of parties arriving at an amicable settlement, we had no option
but to hear the appeal on merits and decide the same.
We have, therefore, heard arguments of learned counsel appearing for the
contesting parties in the appeal, carefully gone through the written
submissions filed by them and are proceeding to decide the appeal on merits
by this judgment.
The points which need to be considered and answered for deciding the
plaintiffs appeals in the light of the said oral arguments and written
submissions of learned counsel for contesting parties could be formulated,
for purposes of proper and effective consideration, thus:
1. Is the finding that the defendant in the suit had acquired title-in
respect of two rooms (converted into three rooms) of Southern Dharamshatla
of the Martand Shrine because of a specific grant made thereto by Maharaja
Pratap Singh while he was the sovereign Ruler of Jammu State, recorded by
the learned third Judge of the High Court (Farooqi, J.) for whose decision
the two questions – one relating to adverse possession and another relating
to holding of Dewans, on which two Judges of the Division Bench deciding
the appeals, had not agreed upon, unsustainable?
2. Was the possession of two rooms (converted into three rooms) in
Southern Dharamshalla of Martand Shrine given in the year 1913 A.D. by
Maharaja Partap Singh to the Sikh Community (since represented by the
defendants) was in the nature of merely permissive possession, as claimed
by the plaintiffs?
3. It the finding that the defendants had acquired title to two rooms
(converted into three rooms) out of six rooms of Southern Dharamshalla of
Martand Shrine by adverse pos-session, of the learned third Judge of the
High Court (Farooqi, J.) for whose decision the question relating to such
adverse possession arising in the appeal was referred, unsustainable?
4. Is finding that the defendants had acquired easementary right to
hold their Dewans in the open space of Martand Shrine towards Pahalgam
Road, on three occasions – Baisakhi, Daswi and Chatti Padshahi, of the
teamed third Judge of the High Court (Farooqi, J.) for whose decision the
question relating to such holding of Dewans arising in the appeal was
referred, unsustainable ?
5. If it is found that the defendants (Sikhs) have not acquired title
in respect of two rooms (converted into three rooms) out of six rooms in
the Southern Dharamshalla of Martand Shrine because of either grant made by
Maharaja Partap Singh or of Adverse possession, are the defendants liable
to be ejected from the two rooms (converted into three rooms) of the
Southern Dharamshalla, when two of the converted rooms are used for keeping
their sacred ‘Granth Sahib’ and one of the converted room is used as
kitchen or Langer Room for preparing food to feed the poor or could the
defendants be allowed to continue in permissive possession subject to
imposition of reasonable restrictions ?
6. If it is found that the defendants (Sikhs) had not acquired
easementary right of conducting dewans on three occasions of every year
Baisakhi, Daswi and Chatti Padshahi, in the open space of Martand and
Shrine towards Pahalgam Road, are the defendants liable to be restrained by
a permanent injunction from holding the said Dewans in that open space or
could the defendants (sikhs) be allowed to hold such Dewans subject to
imposition of reasonable restrictions on its user?
The said points shall now be taken up seriatim for consideration and
answered.
Point-1:
The point relates to sustainability of the finding on acquisition of title
by Sikh Community – the defendants in respect of two rooms (converted into
three rooms) in the Southern Dharamshalla of the Martand Shrine under a
grant, recorded by Farooqi, J.
The case of the plaintiffs for ejectment of the defendants from the two
rooms (converted into three rooms) of Southern Dharamshalla of Martand
Shrine, as pleaded in paras 2, 4, 5, 10, 12 and 14 of their suit-plaint,
reads :
“2. That there is a Tirath namely Martand Tirath situate in Village Macha
Bhawan, Tehsil Anantnag, of the Hindus existing from olden times.
3. ……….
4. That the possession of the Hindus has duly been recorded in the revenue
record and the Settlement Record from olden times and it is in possession
and under the ownership of the Hindus,……………..
5. That since the Dharamshalla Deptt. came into existence it is watching,
managing and taking care of Dharamshallas and the temple.
6…………..
7…………..
8…………..
9…………..
10. That the Dharmarth department had permitted Sikhs to place Granth Sahib
temporarily in two rooms, when their Dharamshalla had demolished which was
at a very long distance from Martand Tirath and the permission was granted
temporarily to place Granth Sahib there till reconstruction of the
Dharamshalla. The Sikhs evaded constructing their own Gurudwara and
Dharmarth department pressed the defendants to vacate the said rooms. In
consequence of this a dispute arose between Sikhs and Dharmarth department
and it took a grave shape. Due to this dispute the Government intervened
and on the intervention of the Government of J&K the Sikhs nominated Sardar
Kanya Singh, Sardar Gulab Singh, Sardar Nirmal Singh and Dr. Jaswant Singh
as their representatives and attorneys and it was decided with the
Dharmarth department alongwith the then Hon’ble Finance Minister, that both
the rooms would be got vacated and Granth Sahib will be placed in the New
Dharamshalla and these two rooms shall be used temporarily for Granth
Sahib, till new Dharamshalla is constructed On the Government expenses.
This compromise deed was executed on 4th Assuj, 1992 jointly by the
aforesaid representatives and Dharmarth department in presence of the then
Wazir Wazarat Anantnag and Hon’ble Finance Minister by which dispute
between Dharmarth department and the defendants (Sikhs) ended. At the time
the deed dated 4 Assuj 1992 was executed Sikhs had converted these two
rooms into four rooms and at present these four rooms have again been
converted into two rooms and one kitchen.
11, ………….,……………………………….
12. That the plaintiffs have been old Purohits from generation to
generation of this Tirath. Prior to the existence of Dharmarth department
the management of this Tirath was with the elders of the plaintiffs. The
Dharmarth department gave up the management to the plaintiffs by order of
His Highness on 22 Sawan 2007 and handed over its management to the
plaintiffs instead of the Dharmarth department which was hitherto before in
old times. To facilitate the disposal of the case, the Dharmarth Council
has been arrayed as proforma defendant. The plaintiffs were demanding of
the defendant to vacate these rooms and to take out the Granth Sahib from
the existing rooms and make their arrangements but the defendants continued
evading. At the plaintiffs persistency the defendants started creating
disturbance and to grab these rooms by oppression and taking out their
daggers overawed the plaintiffs attempting to take possession of the
springs and tried to put obstruction to the Hindus in performing their
religious rites and tried to show that the Tirath is of Guru Nanak Ji. They
were creating the disturbances from time to time for about two years.
Gradually the disturbance prolonged till the Government itself took the
possession of this sacred Martand Tirath, detailed a police
guard,…………….
13,
14. That two rooms are in possession of the defendants on temporary basis
which are existing at present in the shape of three rooms. The plaintiffs
are entitled to the possession of these rooms and the defendants are bound
to take out Granth Sahib from these rooms as has been decided and agreed to
by the representatives of the defendants in the year 1992, The Government
of Jammu and Kashmir and the Dharmarth department which was managing body
of the Martand Tirath have consented that permission to keep Granth Sahib
for some time be given and Granth Sahib be placed somewhere else which the
defendants did not do. Therefore, the plaintiffs are desirous to get them
ejected from these rooms and are entitled to
possession……………………”
In the two written statements filed by the defendants, the whole defence
set up by them in respect of two rooms (converted into three rooms)of the
Southern Dharamshalla of Martand Shrine, from which defendants’ ejectment
was sought, is contained in para 10 of the written statement of
defendants-3, 7 and 8, and paras 5 and 10 of the written statement of all
the defendants including defendants-3,7 and 8. Para 10 of written statement
of defendants-3, 7 and 8 reads:
PARA 10 OF WRITTEN STATEMENT OF DEFENDANTS-3, 7 AND 8.
“10. Para No. 10 is contrary to the fact and incorrect. Hence its entire
contents are denied. The Sikh Community has been the owner and in
possession of the suit land for more than 12 years as is known to “Hindu
Community” and they have many historical documents, compromise deeds, and
other witnesses and proof in their favour, which have proved that the
owners, occupants and the usufructory of the disputed property are Sikhs.”
PARA 5 AND 10 OF THE WRITTEN STATEMENT OF ALL THE DEFENDANTS.
“5. Para 5 of the plaint is denied. The property in dispute was never
managed or supervised by the Dharmarth department at any time.”
10. That Para No. 10 is incorrect and hence is denied. The Dharmarth had no
connection with the rooms in possession of the Sikhs and used as
Gurudawara, nor did they give rooms to the Sikhs for any purpose. The
historic Gurudawara of the Sikhs is at spring No. 2 known as Macha Bbawan.
In fact on the three sides of the spring No. 2 there were 7 Gurudwaras
wherein seven Bira (Volumes) of Guru Granth Sahib were installed, one in
each Gurudawara. Besides, there were 45 rooms for the use of the pilgrims
to the historic Sikh Gurudawara Mattan Sabib. Those buildings were
demolished under the orders of Maharaja Partap Singh on account of their
being too old and with a view to erect new building in these place. But due
to the first great war the new proposed construction by the Government
could not be undertaken and only the present line of 7 rooms been used as
the building of the Gurudawara. Four rooms are actually used for the
worship of the Guru Granth Sahib therein and the remaining three rooms are
used for the use of pilgrims. There was no dispute between the Sikh and the
Government in 1942 or there about regarding the Gurudawara as alleged in
this para of the plaint nor Sardar Kanahaya Singh and others mentioned in
this para were ever appointed as representatives of the Sikh Community and
the Sikh Community is not bound by any undertaking of theirs even if there
is any.”
However, even the additional plea taken by way of defence in the written
statement filed by all the defendants against their ejectment from the said
two rooms, in para 17(i) thereof, was merely, the following:
“(i) That the Gurudawara Mattan Sahib is a historic Sikh Shrine founded in
memory of the first Sikh lord Guru Nanak Dev Jee. According to the
historians he visited this spot before 1657 and since then this sacred
shrine remained connected with the Sikhs and the Sikh history. After the
conquest of Kashmir the Gurudawara was built by the orders of Maharaja
Ranjit Singh and a Muafi and a jagir was given which continues till today.”
The defence put-forth by the defendants as seen from their written
statements, against the plea of ejectment putforth against them by the
plaintiffs in their suit, does not show that they were not liable to
ejectment from the two rooms (converted into three rooms) in the Southern
Dharamshalla of the Martand Shrine, for the reason that those rooms were
given away to the Sikh Community by Maharaja Partap Singh by way of grant,
while he was the sovereign Ruler of the Jammu State. Even if the averments
contained in the aforesaid paragraphs of the written statement of the
defendants are read as a whole, it is impossible either to infer or imagine
that the defendants wanted to resist the suit of the plaintiffs filed
against them for ejectment from the two rooms (converted into three rooms)
in the Southern Dharamshalla, as granted of the said rooms under a grant
made by Maharaja Partap Singh in favour of the Sikh Community for placing
‘Granth Sahib’ in those rooms and as such they had become owners by grant
of two rooms made by the then sovereign Ruler of Jammu State, Maharaja
Partap Singh.
No doubt, the finding recorded by the learned third Judge (Farooqi, J.)
that tow rooms of Dharamshalla had been granted by Maharaja Partap Singh in
favour of the Sikh Community-defendants, accords with the finding of
another learned Judge (Jalal-ud-Din, J.) But, that finding in our view,
becomes wholly unsustainable being altogether a new case made out for the
defendants by him, in that, such case is not in any way traceable to the
pleas of defence of the defendants set out in their written statement
against their ejectment from the said two rooms.
Moreover, the learned third Judge (Farooqi, J.) could not have recorded the
finding that the two rooms (Converted into three rooms) in Southern
Dharamshalla of Martand Shrine were given, by way of grant by Maharaja
Partap Singh to the Sikh Community- defendants when the defence pleaded by
the defendants in their written statements that DharamshaUa consisting of
seven rooms was erected by Maharaja Partap Singh in lieu of seven
gurudawara which were said to have been existing before, had been negatived
by the second learned Judge (Jalal-ud-Din, J.) agreeing with the other
learned judge of the Division Bench (Anant Singh, J.) by holding thus:
“After an appraisal of the evidence of the record 1 am not prepared to
accept the contention of the defendants that the Dharamshalla consisting of
seven rooms was erected by the Maharaja Partap Singh in lieu of seven
Gurudawara that are said to have existed before. There is no evidence on
the record to this effect. However, this is evidence on the record to show
that a Dharamshalla existed on the southern side which was in a dilapidated
condition which was demolished and a new Dharamshalla was constructed. It
is difficult to believe the story put up by the defendants in the case that
their Gurudawaras existed within the Mattan Shrine………………”
Beside, when Farooqi, J. was, according to the reference order, required to
decide on two specific questions one relating to acquisition of title to
two rooms (converted into three rooms) in Southern Dharamshalla by adverse
possession and another relating to holding of Dewans by the defendants in
the open space towards Pahalgam road, because of the differing opinions of
two learned judges of the Division Bench deciding the appeal, the finding
recorded by him that the defendants had acquired tide two room (converted
into three rooms) in Southern Dharamshalla by reason of grant made by
Maharaja Partap Singh in their favour, calls to be disregarded as that made
by him beyond the terms of reference requiring his opinion.
Hence, the finding of the learned Judge (Farooqi, J.) that the defendants
acquired title of the two rooms (converted into three rooms) in the
Southern Dharamshalla by reason of a grant made in their favour (Sikh
Community) by Maharaja Partap Singh, becomes wholly unsustainable in law.
We answer point-1, accordingly.
Point- 2:
When the possession of two room (converted into three rooms) of Southern
Dharamshalla was given in the year 1913 to Sikh Community -the defendants
at the behest of Maharaja Partap Singh for keeping the ‘Granth Sahib’; was
such possession in the nature of permissive possession, is the point
requiring our consideration here. The plaintiffs’ case in respect of the
two rooms (converted into three rooms), from which ejectment of the
defendants as sought, in their suit, is that specifically set out in their
plaint to which we have already referred to while dealing with Point-1 and
particularised in their evidence at the trial of the suit. That case of the
plaintiffs put in a nut- shell, is the following:
That there was an old Gurudawara of Sikhs situated at a place which was far
away from the precincts of Martand Shrine, When that old Gurudawara of Sikh
fell down, the Sikh did not like their ‘Granth Sahib’ which had been kept
there, to be shifted and kept in a private building. Consequently, in the
year 1913, they approached Maharaja Partap Singh with a request to get two
rooms of the Southern Dharamshalla of Martand Shrine, which had after its
re-construction at Government expense, continued to be in the management of
Dharmarth Department, for Keeping their ‘Granth Sahib’ till their (Sikhs)
Dharamshalla was re-built. Maharaja Partap Singh, who found the said
request of Sikhs to be just and genuine, conceded to the same and directed
the Dharamshalla Department to allow Sikhs to keep their ‘Granth Sahib’, in
two room of the Southern Dharamshalla of Martand Shrine until their (Sikhs)
own Dharamshalla was re-built either by themselves or at the expense of the
State. Accordingly, possession of two rooms in Southern Dharamshalla was
given by Dharmarth Department to Sikhs for keeping their sacred ‘Granth
Sahib’. Dharmarth Department at the time of giving possession of two rooms
(converted into three rooms) of Southern Dharamshalla to Sikhs for keeping
their ‘Granth Sahib’ was managing the affairs of Martand Shrine including
its Southern Dharamshalla on behalf of Hindus to whom the shrine and
Dharamshalla belonged since Dharmarth Department itself had been created by
Govern’ meat to take over management of Hindu temples and Dharamshalla and
manage the same for the benefit of Hindus. Since Southern Dharamshalla of
Martand Shrine was reconstructed in the place of dilapidated Dharamshalla,
belonging to Hindus it did not cease to belong to Hindus even if such
reconstruction was funded by Government. Indeed, neither the Maharaja nor
his Government either acquired or intended to acquired Martand Shrine’s or
it Dharmshalla’s ownership rights. Thus, when the Maharaja or his
Government had not acquired any ownership rights of the Martand Shrine or
its properties including Southern re-constructed Dharamshalla neither the
Maharaja nor his Dharmarth department could give away to the Sikhs any
rooms in the Dharamshalla by way of grant as would transfer the ownership
rights in them. The possession of the two rooms (converted into three
rooms) in the Southern Dharamshalla given by Dharmarth Department of the
Government at the behest of the Maharaja to Sikhs for keeping their ‘Granth
Sahib’ was on behalf of Hindus, the owners of the Martand Shrine and its
Dharamshalla and the same could not be anything but permissive in nature.
The Trial Judge discarded the said case of the plaintiffs as to permissive
possession of the defendants put-forth in respect of two rooms (converted
into three rooms) in Southern Dharamshalla of Martand Shrine by recording
his finding in that behalf thus:
1 might also mention that if the plaintiffs fail to establish the existence
of the old Sikh Gurudawara, then the very basis of their case of permissive
possession of the defendants over the present Dharamshalla disappears.
Furthermore if it is found that there was no such sikh Gunidawara at Sangam
then the conclusion is inescapable that the various grants, and Maufies
which have been proved by the defendants would referable to Gunidawara at
Mattan and at Mattan alone because it is not the case of the plaintiffs
that the grants could be referable to some other Gurudawaras at a different
place”
Since the sustainability of the said finding of the Trial Judge had been
impugned in appeal filed by the plaintiffs before a Division Bench of the
High Court, Anant Singh, J. who was a member of that Division Bench
reversed that finding on consideration of the evidence in the suit, thus:
“The Southern Dharamshalla was eventually reconstructed in about 1913 as is
the admitted case of the parties, It will appear from the above document
(Ex.P.W. 38/1) that the reconstructed Dharamshalla was constructed on the
old Dharamshalla which, in its turn, had been constructed by the Dharmarth
department of the State of the Maharaja. The Dharmarth was as it has been
seen more than once, only for the Hindus alone. Now there will be a
presumption that when the Dharamshalla was reconstructed by the Dharmarth
aided by the State, it was reconstructed for the Hindus alone. The
Dharmarth was not the personal property of the Maharaja. This the Maharaja
obviously did not construct this Dharamshalla as his personal property, but
it continued to be the property of the Hindus under the control, and
Management of the Dharamshalla.”
The defendants have not disclosed in any of their written statements nor in
the evidence of any of their witnesses that they came to occupy the two
rooms by force, or ever asserted their hostile possession before any
dispute between the Hindus and the Sikhs arose in about four to five years
before the suit. In these circumstances it is difficult to disbelieve the
plaintiffs case that the defendants were given permissive possession over
the two rooms, since converted into three by the Dharmarth department under
the order of the Maharaja who was its head for all practical purposes. It
will not however be correct to say as the learned Trial Judge has observed
on page 43 of his Judgment that the present Dharamshalla was constructed by
the Govt. under the orders of Maharaja Partap Singh who was the owner of
the building’. There is no evidence to warrant such a conclusion that
Maharaja Partap Singh was the owner of this building in this personal
capacity or as the Sovereign of the State. The Dharmarth department
reconstructed this Dharamshalla on the old Dharamshalla of course under the
orders of the Maharaja and certain officers of his government and may be
even with Government fund. The Dharmarth department was a wing of the
Maharaja Government and the Dharmarth department existed for Hindus alone.
The building was not the personal property of the Maharaja as owner bat it
was reconstructed by the Dharmarth for the benefit of the Hindus to whom
the whole Shrine has belonged from time immemorial The Maharaja and his
Government has only helped in its maintenance and reconstruction as an act
of generosity. The Maharaja never acquired it for the State. He could not,
therefore, give any portion of it to the Sikhs on behalf of his State.
Evidently, in ordering the giving of the two rooms of this Dharamshalla to
the Sikhs he seems to have acted only as the over all in charge of the
Dharmarth by virtue of his position as the Maharaja who was the sovereign
of the State. The only correct conclusion is that it was the Dharmarth who
gave only permissive possession of the two rooms to Sikhs as a manager of
the Shrine holding it on behalf of the Hindus.”
(Emphasis supplied by us)
Then dealing with the reconstructed Dharamshalla, Jalal-ud-Din, J, another
member, of the Division Bench deciding the appeal, did not in his separate
Judgment, disagree with the Judgment of Anant Singh, J. That the
Dharamshalla of Martand Shrine was constructed in the place of its
dilapidated old Dharamshalla by stating thus:
“After an appraisal of the evidence of the record I am not prepared to
accept the contention of the defendants that the Dharamshalla consisting of
seven rooms was erected by the Maharaja Partap Singh in lieu of seven
Gurudawaras that are said to have existed before. There is no evidence on
the record to this effect. However, there is evidence on the record to show
that a Dharamshalla existed on the southern side which was in a dilapidated
condition which was demolished and a new Dharamshalla was constructed It is
difficult to believe the story put up by the defendants in the case that
their Gurudawaras existed within the Mattan Shrine.’
(Emphasis supplied by us)
But, according to him, the possession of the two rooms (converted into
three rooms) in the Southern Dharamshalla given by the Dharmarth Department
at the behest of Maharaja Partap Singh, had to be regarded as ordering the
giving of Government property by Maharaja Partap Singh as a sovereign Ruler
of Jammu State, although it was not the personal property of the Maharaja.
As pointed out by us while dealing with Point-1, it was not open to make
out a case of grant by Maharaja Partap Singh of the two rooms (converted
into three rooms) in the Southern Dharamshalla in favour of Sikh community
- the defendants, when there was absolutely no plea put forward in the
defence of the defendants in their written statements of such grant by
Maharaja Partap Singh, The finding of the learned Judge in the said regard,
therefore, becomes wholly unsustainable. For the same reason, the finding
of the third Judge, Farooqi, J. that Maharaja Partap Singh must be regarded
as having made a grant of the two rooms (converted into three rooms) in the
Southern Dharamshalla in favour of Sikh community – the defendants, cannot
also be sustained, as is held by us while dealing with Point-1.
When the findings of the learned trial Judge and the learned appellate
Judges as regards nature of the possession of the two rooms (converted into
three rooms) in the Southern Dharamshalla of Martand Shrine given by
Dharmarth Department of Government to the Sikh community in the year 1913
at the behest of Maharaja Partap Singh for keeping their Granth Sahib, are
examined by us with reference to the evidence on which each of such
findings are based, we are of the considered view that the finding of Anant
Singh, J. deserves to be upheld as that based on a correct appreciation of
evidence in the suit rendered taking into consideration all the facts and
circumstances attending the act of giving possession of the said two rooms
by Dharmarth Department to Sikh Community now represented by the
defendants. We accordingly uphold the finding of Anant Singh, J. that the
possession of two rooms (converted into three rooms) in Southern
Dharamshalla of Martand Shrine given by Dharmarth Department to Sikh
community in the year 1913 was merely permissive possession and reject the
findings of other learned trial and appellate Judges, to the contrary since
the latter are based either on no relevant evidence or on surmises and
conjectures.
We, therefore, conclude that the possession of two rooms (converted into
three rooms) in Southern Dharamshalla of Martand shrine given in the year
1913 to Sikhs – the defendants to keep their Granth Sahib was clearly and
obviously nothing but permissive possession, and answer Point-2
accordingly. Point-3:
The proposition of law that permissive possession cannot be converted into
an adverse possession unless it is proved that the person in possession
asserted an adverse title to the property to the knowledge of the true
owners for a period of 12 years or more, cannot be disputed, when it is so
held by the three-Judge Bench of this Court in State Bank of Travancore v.
Arvindn Kunju Panicker and Others, AIR (1971) SC 996 (998). Therefore,
unless Sikhs – the defendants in the suit who were put in permissive
possession of the two rooms (converted into three rooms) of the Southern
Dharamshalla of Martand shrine in the year 1913, could succeed in
establishing that the character of their permissive possession of the said
rooms was turned into the character of adverse possession to the knowledge
of the true owners for a period of 12 years or more, before the institution
of the suit by the plaintiffs, they cannot claim to have acquired title to
the said rooms by adverse possession. When the plaintiffs pleaded in their
plaint that Sikhs – the defendants, who were in permissive possession of
the two rooms (converted into three rooms) of the Southern Dharamshalla of
Martand shrine were required to be ejected therefrom, the suit was resisted
by the defendants by filing two written statements. The plea of adverse
possession taken by defendants-3, 7 and 8 in para 12 of Preliminary
Objections therein reads, thus:
That the property in dispute has been in the possession of the Sikhs as
owners in the capacity of representatives and in their personal capacity
for a period of more than 12 years by way of adverse possession and they
are the owners of the property in possession.”
Again in para 10 of the parawise written statement, it is stated, thus:
10, Para No. 10 is contrary to the facts and incorrect. Hence its entire
contents are denied. The Sikh Community has been the owner and in
possession of the suit land for more than 12 years as is known to ‘Hindu
Community’ and they have many historical documents, compromise deeds, and
other witnesses and proofs in their favour, which have proved that the
owners, occupants and the usufructory of the disputed property are Sikhs.”
In the latter written statement filed by all the defendants what has been
stated is that the Dharmarth Department had no connection with the rooms in
possession of Sikhs used as Gurudawara nor did Dharmarth Department give
rooms to Sikhs for any purpose. Thus, Sikhs – the defendants in their
written statements though have stated that they were in possession of not
only the rooms in Southern Dharamshalla, but also in possession of the
whole shrine and its precincts for over a period of 12 years by way of
adverse possession, they have nowhere in their written statements mentioned
that they had made known to the Dharmarth Department which was in
management of the shrine and Dharamshalla on behalf of Hindus, that they
had converted their permissive possession of two rooms of Southern
Dharamshalla of Martand shrine into adverse possession. There is also no
issue raised in the suit to the effect as to whether the defendants had
perfected their title to the two rooms (converted into three rooms) of the
Southern Dharamshalla of Martand shrine, by adverse possession.
Admittedly, no evidence, documentary or oral, is produced by the Sikhs-
defendants to establish the fact that they had converted their permissive
possession of the two rooms (converted into three rooms) of Southern
Dharamshalla of Martand shrine into adverse possession and they had
perfected their title by such adverse possession. Although there are large
number of witnesses examined for the defendants in the suit, admittedly
none of them have even uttered a word about the perfecting of title to the
said two rooms by defendants, by adverse possession.
According to the trial Judge, since the plaintiffs had failed to prove that
the possession of the two rooms (converted into three rooms) of Southern
Dharamshalla of Martand shrine given to Sikhs- the defendants and some of
the plaintiffs witnesses had stated in their evidence that the defendants
took forcible possession of the said rooms in the Dharamshalla in 1935 and
some other witnesses of plaintiffs had referred to forcible possession of
the rooms held by the defendants on certain occasions, and the Dharmarth
Department itself had stated in its plaint of the suit filed in 1944 A.D.
Ex.27/B, that the defendants started asserting adverse title to the two
rooms in their possession, 15 days before the date when the plaint was
filed namely 25,7,2002 (1944 A.D.), it had to be held that the defendants
had perfected their title to the said two rooms by adverse possession, The
sustainability of the said finding relating to adverse possession was
impugned in the appeal by the plaintiffs, Jalal-ud-Din, and Farooqi, JJ.
for the very reasons stated by the trial Judge, recorded a finding that the
defendants had perfected their title to the two rooms (converted into three
rooms) in Southern Dharamshalla by adverse possession. One of the learned
Judges Anant Singh, J. who dealt with the appeals, reversed the finding of
the trial Judge that the defendants had perfected their title by adverse
possession in respect of two rooms (converted into three rooms) in the
Southern Dharamshalla, for the reasons which we shall advert to presently.
According to him (Anant Singh, J.) the learned trial Judge was not right in
proceeding to decide the question of adverse possession on the basis that
the plaintiffs had not proved that the defendants were put in permissive
possession of the two rooms (converted into three rooms) of Southern
Dharamshalla, in that, Maharaja Partap Singh could not have given away the
rooms in Dharamshalla in favour of Sikhs, for neither the State nor he had
acquired any title in it. On the other hand, he pointed out that when the
Dharmarth Department took over the Martand shrine and Dharamshalla, it was
taken over merely for purposes of proper management of the same 6n behalf
of Hindus to whom they belonged, and hot by way of acquisition Hence,
according to him, when Dharmarth Department, at the behest of the Maharaja,
gave two rooms to Sikhs-the defendants, as managers of the Martand shrine
and Us Dharamshallas on behalf of Hindus to whom they belonged, the
possession of two rooms so given can have only the characteristic of
permissive possession. la fact, we have specifically considered this matter
earlier while dealing with Point-2 and have come to the conclusion that the
possession of two rooms (converted into three rooms) of Southern
Dharamshalla given to Sikhs-the defendants for keeping their Granth Sahib,
by Dharmarth Department at the instance of Maharaja Partap Singh, was
merely permissive possession.
It is pointed out by Anant Singh, 3, that the defendants’ possession since
started with the permissive possession from 1913, it should be presumed to
have continued as such until the defendants, any time there-after,
succeeded in asserting their hostile possession for the requisite period of
12 years. Indeed, this reasoning so given, calls to be upheld, as the same
accords with the decision of this Court in State Bank of Travancore case
(supra). Forcible possession said to have been taken in the year 1915
according to some witnesses of the plaintiffs which were relied upon by the
trial court as an admission on the part of the plaintiffs of assertion of
hostile possession in respect of two rooms by defendants is shown to be not
correct having regarded to the year 1935 referred to by them as the date of
taking forcible possession, when, the actual possession of the two rooms
was given in the year 1913 to the defendants at their request. He has also
referred to the so- called admissions made by witnesses for the plaintiffs
that the defendants being in forcible possession of the said two rooms
during certain periods. According to him, that evidence could not have been
of any value in deciding upon the question of adverse possession of the two
rooms claimed by the defendants, in that, such statements which are not
founded on pleadings could not have been of any avail to the defendants to
assert their case of adverse possession of the two rooms. The main document
on which reliance was placed by the trial Judge was the plaint in suit
filed in 1944 A.D, Ex.P.W, 27/B dated 25 Kartik 2002 by the Dharmarth
Department which, subsequently handed back the possession Of the entire
shrine including Dharamshalla to the plaintiffs in the year 1948, at the
instance of Maharaja Hari Singh, as per Ex.P,W./3/2. According to the
learned trial Judge, that plaint contained a statement made by Dharmarth
Department which amounted to admission of adverse possession claimed by the
defendants. With a view to show what could be the nature of the statement
made by the Dharmarth Department in the plaint, it is pointed out by Anant
Singh, J. that the suit-plaint had been rejected by the trial Judge on a
preliminary objection and Dharmarth Council went up in appeal against the
rejection of the plaint and that appeal was disposed of by the appellate
Judge on a joint application Ex.P.W. 27/B filed before him by both the
parties. That application, it is stated, showed that Dharmarth Council-the
plaintiff in that suit had withdrawn the suit and the defendants had no
objection for such withdrawal. The learned Judge has found that what was
contained in the plaint of a withdrawn suit, could not have formed the
basis for the trial Judge to hold that the Dharmarth Council had admitted
that the defendants had asserted their adverse title to the two rooms in
their possession 15 days earlier to the filing of the suit. That apart, the
learned Judge has pointed out that the plaint relied upon by the trial
Judge did not refer to any statement to the effect that the defendants had
committed any overact for asserting their hostile title to the rooms and it
merely adverted to what was in contemplation in the minds of the defendants
as regards proposed construction of a Gurudawara at the site of the rooms.
If that be so, it is difficult to think that the trial judge was right in
his view that the statement of Dharmarth Department contained in the plaint
as to the activities of the defendants in relation to two rooms did in any
way support the claim of the defendants that they had perfected their title
to two rooms by adverse possession, as rightly reasoned by Aanant, Singh,
J.
In conclusion, the learned judge has stated on the question of adverse
possession pleaded by the defendants la respect of the two rooms of
Southern Dharamshalla in their possession, thus:
“Now to sum up my findings on this item I may recapitulate that the
Southern Dharamshalla was from the very beginning the property of the
Hindus. It was built on the old Dharamshalla of the Hindus. If the Maharaja
Partap Singh had this Dharamshalla reconstructed by his Government he had
done it with the funds of the Dharmarth department which was a separate
wing of his Government The Dharmarth department was meant for the Hindus.
It had only the control and Management of the shrine. If the Dharamshalla
had been the property of the Maharaja Govt. he gave it back along with the
whole shrine in 1948 to the Hindus ——– .”
The said reasons given by the learned Judge (Anant Singh, j.) who reversed
the finding relating to the adverse possession given by the learned trial
Judge in respect of two rooms (converted into three rooms) of Southern
Dharamshalla of Martand shrine, in our view, are well founded and sound and
require to be upheld. Since the finding of Farooqi, J. which accords with
the finding of Jalal-ud-Din, J. on the question of title by adverse
possession in respect of the two rooms (converted into’ three rooms) of the
Southern Dharamshalla, has since been founded on the very reasons given by
the trial judge in support of his finding on adverse possession of the
defendants relating to two rooms of the Dharamshalla the same becomes
unsustainable for the reasons on which Anant Singh, J. his reversed the
finding relating to adverse possession of two rooms (converted into three
rooms) given by the trial judge, which we have found to be correct in every
respect and upheld.
Thus the finding of Farooqi, J. that the defendants had acquired title to
two rooms (converted into three rooms) of Southern Dharamshala of Martand
shrine, by adverse possession, becomes wholly unsustainable, and we answer
Point-3, accordingly.
Point-4:
We are here concerned with the sustainability of the finding of Farooqi J.
which accords with the finding of Jalal-ud-Din, J. that the defendants had
acquired easement rights to hold their Dewans in the open space of Martand
shrine towards Pahalgam Road on three occasions, namely, Baisakhi, Daswi
and Chatti Padshahi. The open space concerned is to the north of the
springs towards Pahalgam Road covering an area of 19kanals and 6 Marias.
The plaintiffs in their suit sought to obtain a permanent injunction
against Sikhs – the defendants from holding their Dewans or congregation on
the plea that the open space was part and parcel of the Martand shrine
belonging to Hindus and that space was in possession of Hindus from times
immemorial and was being used for performing their various religious
ceremonies. The claim of Hindus made in the suit for restraining by
permanent injunction the defendants from using the open space was resisted
by the defendants on the plea put forth by the defendants in Para 9 of
their written statement filed in the suit, which read thus:
“9. ….The land covered by Khasra No. 1424/4 measuring 19 Kanals and 6
Marias is in the exclusive possession of the Sikhs since the times
immemorial as a part and parcel of Gurudawara Shri Mattan Sahib where they
hold congregations, meetings, and Diwans of the Sikh Community…,”
Unfortunately for the defendants the claim made in their written statement
that the land covered by Khasra No, 1424/4 measuring 19 Kanals 6 Marias is
in the exclusive possession of Sikhs as part of Gurudawara Shri Mattan
Sahib has been disbelieved not only by the trial Judge, but also by the
Judges of the High Court who dealt with the appeals arising from the
Judgment of the trial Judge. Indeed the categorical finding of all the
learned Judges given in their judgments is that the defendants’ case that
they were in possession of the Martand shrine and the lands covered by
Survey No. 1424/4 since the time immemorial as a part of Gurudawara Shri
Mattan Sahib is held to be utterly false. Anant Singh, J., who was a member
of the Division Bench which heard the appeal, has stated with reference to
the said open space, as follows:
This open space is situated in the midst of all the structures, buildings
and the springs located in the shrine. They are all a continuous whole
surrounded by compound walls and buildings, on three sides and a high up
land on the East. In ordinary course possession over the open space would
go with the possession over the material structure buildings and the
springs within the midst of which it lies. This big chunck of the open
space lies north of the Dharamshalla building on the West, a room on the
north temples on the east, and three springs on its south. The approach to
the temples lies across this open space. The Dharamshalla and other
buildings on the north west is approachable only across this open space. It
has been seen that all the other items situate within the premises of the
shrine, have been in possession of the Hindus. One of the temples has been
found to be an ancient one. The springs have also been found to have been
ancient ones. They have been found to have been in possession of the Hindus
from time immemorial. It has been found that the Hindus have been per-
forming various ceremonies like Mundan, Saradh etc. on different occasions
all round the year at the springs. This open space is the only place where
the Hindus used to congregate for performing their ceremonies…..
The whole shrine including the vacant space as it has been seen earlier,
has been recorded in the revenue records in possession of the Hindus, this
space having been described as a ‘Banjar Quadeem’, The defendants have
conceded even with respect to this open space the possession of the
plaintiffs since long but they have claimed over it now only a joint
possession along with the Hindus having given up their original case of
exclusive possession. The manner of their joint possession was advanced at
the time of arguments before the Trial Court, as holding of Dewans, on
three specified occasions during every year by them since long.”
Then, on a thorough consideration of the evidence of the plaintiffs and the
defendants in relation to the above space, the same learned Judge concludes
thus:
“This land has been a part and parcel of the plaintiffs shrine from time
immemorial. They are undoubtedly the owners of the whole property including
the open space in question.”
Thereafter, dealing with the defendants claim to hold Dewans on three
specific occasions of user by customs, the learned Judge has stated that
right of user of another’s land by custom cannot be sustained unless it is
proved by party claiming such right whether the right is ancient, peaceful,
reasonable and specific and such right was being exercised as of right and
continuously without interference placing reliance on this Court’s decision
in Raja Braja Sundar Deb and Another v. Moni Beharu and Others, AIR (1951)
SC 247, He was of the view that the said claim to hold Dewans was
unsustainable for want of production of sufficient evidence on the part of
the defendants and the defendants who had indeed, claimed ownership rights
in respect of the open space should not be allowed to turn round and claim
the right to hold Dewans on the lands on the basis of acquisition of such
rights as easement or long user in the absence of alternative plea taken in
that regard in their written statement Thus, he negatives the claim of the
defendants to hold Dewans in the open space as a matter of right, Jalal-ud-
Din, J., another member of the Division Bench, since took the view that the
defendants were entitled to use the open space, having established their
easementary right in that regard, the question of the defendants acquiring
right to use the space for their Dewans by acquisition of right by easement
in that regard came to be referred, for decision thereon by the third
Judge. The third Judge, Farooqi, J. though came to the conclusion that the
entry in Record of Rights and Jamabandi when was to the effect “as Kabzaahl
Hindus”, it meant that the possession of the open space was of the
followers of Hinduism, he took the view that the property being treated as
‘Banjar Quadeem’ in the Records of Rights and Jamabandi it implied that the
property was not put to cultivation, and hence such entries cannot be
treated as conclusive proof of the land dedicated exclusively to the
Sanatini Hindus or to Martand shrine of Hindus. We find that the view so
taken by Farooqi, J. in the matter on the basis of entry ‘Banjar Quadeem’
was not justifiable when he himself has referred to the Record of Rights
and Jamabandi entries which show that the above space along with other
lands of the Shrine were showed to be in exclusive possession of Hindus.
Therefore, the contrary view of Anant Singh, J. in the matter of
acquisition of right by easement on the open space by defendants, according
to us, prevail over the view of Farooqi, J. expressed thereon. The learned
Judge Farooqi, J. was again, in our view, wrong when he reached the
conclusion that the defendants had taken a plea of acquisition of right to
conduct Dewans as an easementary right by referring to Para 9 of the
written statement, which read thus;
“The land covered by Khasra No. 1424/4 measuring 19 Kanals 6 Marias is in
the exclusive possession of the Sikhs since the times immemorial as a part
of Gurudawara Shri Mattan Sahib where they held congregations, meetings and
Dewans of the Sikh Community.”
The plea taken in Para 9 of the written statement above as becomes obvious
from its plain reading is that Sikhs had acquired right to land covered by
Khasra No. 1424/4 as the same being in their possession from time
immemorial as a part of Gurudawara Shri Mattan Sahib and not that they had
acquired the right of easement to hold Dewans or congregation in that land
which belonged to Hindus, Therefore, the view of the learned Judge that the
plea of the defendants contained in Para 9 of the written statement could
be regarded as a plea of right of easement becomes wholly unsustainable. If
that be so, the finding of Farooqi, J,, the learned third Judge deciding
the appeals, that Sikhs had established their right of easement over the
open space in the matter of holding religious ceremonies or Dewans on three
specific occasions, namely, Baisakhi, Daswi and Chatti Padshahi, becomes
wholly unsustainable. We answer Point-4, accordingly.
Point-5:
The point here is whether Sikhs are liable to be ejected from the two rooms
(converted into three rooms) in the Southern Dharamshalla of Martand shrine
where they are keeping their Granth Sahib because of the finding of
Farooqi, .I. that Sikhs – the defendants had acquired title to the two
rooms (converted into three rooms) by either grant made by Maharaja Partap
Singh of the same in their favour or because of their perfecting tide
thereto by adverse possession, is found to be unsustainable.
Interest of justice, in our view, does not warrant ordering of ejectment of
Sikhs – the defendants from the two rooms (converted into three rooms) of
Southern Dharamshalla of Martand shrine where they are keeping their Granth
Sahib, in the over all facts and circumstances of the case and in
particular having regard to the case put forward by the plaintiffs in
respect of giving of permissive possession of the said two rooms (converted
into three rooms) to Sikhs – the defendants, which is accepted by us to be
true. What is said in Para 10 of the plaint is that the Dharmarth
Department had permitted Sikhs to place Granth Sahib temporarily in the two
rooms (converted into three rooms) of the Southern Dharmshalla of Martand
shrine till their (Sikhs) fallen Dharamshalla, which was away from the
Martand Tirath was reconstructed for enabling them to place their ‘Granth
Sahib’ there. In the same paragraph it is stated that it was decided with
the Dharmarlh Department along with the Hon’ble Minister that both the
rooms would be got vacated and Granth Sahib will be placed in new
Dharamshalla and these two rooms will be used for keeping Granth Sahib till
new Dharamshalla was constructed at the Government expense. It is also
stated therein that the compromise deed was executed on 4 Assuj 1992
jointly by the representatives of the Sikhs and Dharmarth Department in the
presence of the Wazir Wazarath Ananlnag and the Hon’ble Finance Minister
resolving the dispute in relation to the said rooms between the Dharmarth
Department and Sikhs – the defendants. Admittedly, no new Dharamshalla
which was to be built either by Sikhs or by the Government has yet been
built to enable Sikhs – the defendants to shift their Granth Sahib from the
two rooms (converted into three rooms) of Southern Dharamshalla of the
Martand shrine and vacate those rooms. When the possession of the two rooms
(converted into three rooms) in the Southern Dharamshalla was given to
Sikhs – the defendants, for keeping their Granth Sahib by the Dharmarth
Department at the instance of Maharaja Partap Singh, the Dharmarth
Department of the Government which was in the management of the Southern
Dharamshalla of the Martand shrine gave two rooms of it to Sikhs for
keeping their Granth Sabib, till a new Dharamshalla was built by Sikhs
themselves or by the Government for them for shifting the sacred Granth
Sahib. Hindus, the plaintiffs, in our view, cannot wriggle out of the
situation created by action of Dharmarth Department, as manager of Martand
shrine and its Dharamshallas, for them. Moreover, there is a realisation on
the part of the defendants that the claim of ownership made by them in
respect of Martand shrine and its precincts on behalf of Sikhs was wholly
unjustified as seen for what is stated in paras 39 and 40 of their written
submissions which read, thus:
“39, Ever since the judgment of the learned third Judge after filing of the
appeal before this Hon’ble Court, the parties have reconciled to the
position as settled by the Division Bench and there has not been any
conflict worth mentioning rather peace and harmony have ever since
prevailed. The respondents have not filed any appeal before this Hon’ble
Court even though the final judgment is partially against them. They did
not file an appeal with the intention that peace and harmony prevails in
the locality amongst the two communities.”
“40. The appellants have also reconciled to the position and also informed
this Hon’ble Court that they have no grievance against the continuance in
possession by the respondents in respect of the three rooms and the
celebration of the three festivals: Dasmi, Chhatipatshahi and Baisakhi
which is the subject matter of the appeal.”
Hence, in our view, it would not be in the interest of justice to order
ejection of the defendants from the said two rooms (now converted into
three rooms) of Southern Dharamshalla of Martand shrine, as sought by the
plaintiffs in the suit. However, their right to continue in the possession
of the said two rooms (converted into three rooms) where they have placed
their Granth Sahib since has to be regarded as permissive possession, any
act which may be committed by Sikhs – the defendants by taking advantage of
the permissive possession held by them of the said rooms which could result
in obstruction of the performance of poojas in the shrine or religious
ceremonies at the springs or the open spaces of the shrine by Hindus, it
has to be made clear, gives Hindus – the plaintiffs a cause of action for
the defendants’ ejectment from the two rooms (converted into three rooms)
by having recourse to appropriate legal proceedings. We answer the point
under consideration accordingly taking recourse to Article 142(1) of the
Constitution empowering this Court to make such order as is necessary, to
do complete justice in any matter or cause before it.
Point-6:
The point here concerns the rights of Sikhs – the defendants to hold Dewans
on three specific occasion of the year, namely, Baisakhi, Daswi and Chatti
Padshahi in the open space of the Martand shrine towards Pahalgam Road. No
doubt, we have come to the conclusion that the defendants have failed to
establish easementary right to hold such Dewans in the open space. Even
then, when the plaintiffs have allowed the defendants – Sikhs to have two
rooms (converted into three rooms) of Southern Dharamshalla of Martand
shrine for placing their Granth Sahib and when as of necessity Sikhs – the
defendants are compelled to hold Dewans in a. convenient place close to
those two rooms (converted into three rooms), it cannot be in the interest
of justice to restrain Sikhs – the defendants from holding Dewans in the
above open space of the Martand shrine towards Pahalgam Road on three
occasions when permission to hold such Dewans is granted by jalal-ud-Din,
J. and Farooqi, J. while deciding the appeals even though we have not found
favour with the reasons given therefor. However, the permission so granted
shall cease when the defendants’ permissive possession of two rooms
(converted into three rooms) in Southern Dharamshalla of Martand Shrine
comes to an end. It is made clear in the interest of justice itself that
Sikhs – the defendants whenever decide to hold Dewans in the open space of
Martand shrine towards Pahalgam Road on any of the three occasions in a
year adverted to by the said learned Judges, the same ought to be held by
requiring the people interested in attending such Dewans to reach the open
space concerned directly from Pahalgam Road and not by crossing the other
Martand shrine premises or the springs where the Hindus would be performing
their poojas or holding religious ceremonies or rites. If the holding of
the said Dewans, it is made clear, is sought to be done or is done by
allowing the people to congregate for Dewans in the open space crossing the
other Martand shrine premises, or springs that would give a cause of action
for Hindus – there plaintiffs to take legal proceedings against the
defendants to prevent them from holding Dewans or congregations in the open
space of Martand shrine towards Pahalgam Road, as is permitted by the
learned Judges Jalal-ud-Din & Farooqi, .JJ. in their judgments in the
present appeal, we answer the point under consideration accordingly in
exercise of our jurisdiction under Article 142 (1) of the Constitution for
doing complete justice in the cause or matter before us, because of its
extra-ordinary nature.
Having regard to the total effect of the answers given by us on the points
formulated as arising for our consideration in this appeal, the appeal is
liable to be dismissed, subject to the liability of the defendants for
ejectment from the two rooms (converted into three rooms) of Southern
Dharamshalla of Martand shrine, if they misuse their permissive possession
under which they are allowed continue in those rooms and of the liability
of the defendants to be restrained from using the open space of Martand
shrine towards Pahalgam Road, to hold Dewans on three occasions every year,
if they or their men misuse the permission to hold such Dewans now granted
by indulging in acts that would cause obstruction or annoyance to Hindus in
performance of their poojas or conducting religious ceremonies in the
precincts of their own Martand shrine and springs therein.
In the result the appeal is dismissed. However, Sikhs’ (the defendants’)
continuance in permissive possession of two rooms (converted into three
rooms) of Southern Dharamshalla of Martand Shrine, and their user of the
open space of Martand shrine towards Pahalgam Road on three occasions of
the year, namely, Baisakhi, Daswi and Chatti Padshahi, shall be subject to
the fulfilment of the conditions imposed by us in recording our answers on
the points considered by us in this appeal.
Having regard to the nature of dispute in this appeal, (here shall be no
order as to costs.
Appeal dismissed.