CHAIRMAN, BOARD OF TRUSTEE, SRI RAM MANDIR JAGTIAL KARIMNAGAR DISTRICT, A.PversusS. RAJYALAXMI (DEAD) & ORS.

1172                SUPREME[2018]
                            COURT 14 REPORTS
                                     S.C.R. 1172            [2018] 14 S.C.R.


 A        CHAIRMAN, BOARD OF TRUSTEE, SRI RAM MANDIR
               JAGTIAL KARIMNAGAR DISTRICT, A.P
                                         v.
                       S. RAJYALAXMI (DEAD) & ORS.
 B                        (Civil Appeal No. 7843 of 2009)
                              DECEMBER 10, 2018
                        [N. V. RAMANA AND
                  MOHAN M. SHANTANAGOUDAR, JJ.]
 C            Suit – Declaration of title and perpetual injunction –
       Respondents-plaintiffs filed a suit against the appellants-defendants
       seeking declaration that they were the owners of the suit property –
       Trial Court dismissed the suit preferred by the respondents-plaintiffs
       as they failed to prove the source of their title – However, High
       Court decreed the suit in favour of the respondents-plaintiffs placing
 D     reliance on the book of endowments as maintained by the Endowment
       Department which showed the boundaries of a Temple adjacent to
       the suit property – On appeal, held: After perusing evidence on
       record, the respondents-plaintiffs in order to prove their title had
       relied upon several permissions of the municipality and tax receipts
 E     to prove their title – But the aforesaid documents might imply
       possession but they cannot be relied to confer title upon the holder
       – Further, book of Endowment alone was not sufficient to claim the
       title over the suit premises as it was only intended to demarcate the
       temple premises – On the contrary, appellant had put forth an earlier
       order passed by the Deputy Commissioner involving the same suit
 F     property – It was categorically held therein, that the suit property
       was related to the temple, and plaintiff no.1 (predecessor-in-interest
       of respondent no.1 to 6) was staying therein to perform his duty as
       “pujari” – Aggrieved, Plaintiff no.1 had filed O.S. No. 134/77 which
       was dismissed for default, hence earlier order had attained finality
 G     – Therefore, instant suit involving the same property seeking similar
       relief as O.S. No.134/77 was barred by time – Respondents-plaintiffs
       had failed to discharge their burden of proof by being unable to
       furnish necessary documentary and oral evidence to prove their
       claim – Thus, Judgment of the High Court untenable in law as it is
       based on erroneous appreciation of evidence.
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                                       1172
   CHAIRMAN, BOARD OF TRUSTEE, SRI RAM MANDIR                          1173
        JAGTIAL, A.P v. S. RAJYALAXMI (DEAD)

      Allowing the appeal, the Court                                   A
       HELD: 1. The plaintiffs in order to substantiate their claims
placed on record documentary evidences comprising of
permissions granted by the municipality, property tax assessment
papers, tax receipts and extract of the Book of Endowments of
Ram Mandir. After perusing evidence on record, the respondents-        B
plaintiffs in order to prove their title has relied upon several
permissions of the municipality and tax receipts. But while, the
aforesaid documents might imply possession but they cannot be
relied to confer title upon the holder. Further, the respondents-
plaintiffs have strongly relied upon the book of endowments as
maintained by the Endowment Department which shows the                 C
boundaries of the temple. In any case, this document alone is not
sufficient to claim the title over the suit premises as it was only
intended to demarcate the temple premises. [Para 17]
[1178-G-H; 1179-A-C]
      2. On the contrary, the appellant-defendant no.4 has put         D
forth the earlier order passed by the Deputy Commissioner,
involving the same suit property. It was categorically held therein,
that the suit property is related to the temple, and the plaintiff
no.1 is staying therein to perform his duty. The earlier order also
stated that, the suit property was originally granted as Inam to       E
the forefathers of the plaintiffs for the conducting pooja and to
feed the brahmins. In the aforesaid order, it also noted that, the
plaintiff had removed the idols from the suit temple to meet his
personal needs. Aggrieved, by the aforementioned order of
Deputy Commissioner, plaintiff no.1 thereafter had filed O.S.
No.134/77, before the Chief Judge, City Civil Court which came         F
to be dismissed for default, hence has attained finality. Therefore,
the present suit involving the same property seeking similar relief
as O.S. No.134/77 is barred by time. However, the defence has
also clearly averred that since the plaintiffs and their forefathers
were working as pujaris in the Ram Temple, the endowment               G
department in order to demarcate the Ram Mandir itself,
mentioned the suit property as the adjoining premises. Keeping
in view the aforesaid facts and circumstances, the plaintiffs have
failed to produce any evidence to counter the case put forth by
the appellant-defendant no.4. [Para 18][1179-B-F]
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1174                SUPREME COURT REPORTS                      [2018] 14 S.C.R.


 A            3. In the present case, the respondents-plaintiffs failed to
       discharge their burden of proof by being unable to furnish
       necessary documentary and oral evidence to prove their claim.
       But, the High Court without appreciating the aforesaid evidences
       and claims made by the appellant (defendant no.4), decreed the
       suit in favour of the respondents-plaintiffs by solely relying on
 B
       the entry made in the book of endowments department stating
       the boundaries of the temple. The aforesaid judgment of the High
       Court is untenable in law as it is based on erroneous appreciation
       of evidence. [Para 20][1180-B-D]
              Corporation of City of Bangalore v. Zulekha Bi and
 C            Ors. (2008) 11 SCC 306 : [2008] 5 SCR 325 ; Parimal
              v. Veena (2011) 3 SCC 545 : [2011] 2 SCR 648 –
              referred to.
                                Case Law Reference
       [2008] 5 SCR 325                  referred to           Para 19
 D     [2011] 2 SCR 648                  referred to           Para 19
              CIVIL APPELLATE JURISDICTION : Civil Appeal No. 7843
       of 2009.
              From the Judgment and Order dated 18.11.2006 of the High Court
       of Judicature, Andhra Pradesh at Hyderabad in Appeal Suit No. 1964 of
 E     1993.
              S. S. Reddy, Sr. Adv., D. Mahesh Babu, Ms. Suchitra Hrangkhawl,
       T. V. Bhaskar Reddy, Ms. Bina Madhavan, Ms. Shreyasi Kunwar for
       M/s. Lawyer S Knit & Co, P. Venkat Reddy, Prashant Tyagi (for M/s.
       Venkat Palwai Law Associates), Advs. for the appearing parties.
 F           The Judgment of the Court was delivered by
             N. V. RAMANA, J.
              1. The present appeal arises out of the impugned judgment dated
       18 th November 2006, passed by the High Court of Judicature at
 G     Hyderabad in Appeal Suit No. 1964 of 1993 wherein the High Court
       allowed the appeal preferred by the respondents and set aside the order
       of the Subordinate Judge in O.S. No.69 of 1987, thereby decreeing the
       suit in favour of the respondents-plaintiffs.
              2. A brief reference to the facts may be necessary for the disposal
       of the present case. The original plaintiff no.1 (predecessor-in-interest
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  CHAIRMAN, BOARD OF TRUSTEE, SRI RAM MANDIR            1175
JAGTIAL, A.P v. S. RAJYALAXMI (DEAD) [N. V. RAMANA, J.]

of respondent nos. 1 to 6 herein) and original plaintiff no.2 (respondent      A
no.7 herein) preferred a suit against the defendants (appellant and
respondent no.8,9 and 10 herein) seeking a declaration that they are the
owners of the suit schedule ‘A’ house bearing H. No. 5-6-69 (old), 6-1-
7 (old), reassigned new nos. 6-1-81 and 6-1-81/1 situated at Brahminwadi,
Jagtial. The original plaintiffs had also prayed for a declaration that the
                                                                               B
suit schedule ‘B’ properties are not in existence and the said properties
do not belong to the temple. Lastly, they also sought a consequential
relief of permanent injunction against the defendants from interfering
with the peaceful possession and enjoyment of the suit property.
       3. The respondents-plaintiffs claimed to be the owners of the
suit schedule “A” house and further contended that they have been              C
residing in the suit property since the time of their ancestors. Hence it is
recorded in their name and they have been paying taxes to the municipality
with respect to the same. A Ram Mandir, situated to the west of the suit
property bearing H.Nos.5-6-70 (old) & 6-1-8 (old) corresponding to
H.No.6-1-82 (new), which is shown as Endowments property by the                D
Endowments department. Plaintiff no.1 has stated that the eastern and
southern boundaries of the temple are shown to be the house of the
plaintiffs. The plaintiffs also brought to the notice of the court, the
permission dated 14.10.1977, granted in their favour by the municipality,
for re-roofing. The original plaintiff no.1 and plaintiff no.2 effectuated
an oral partition of the suit schedule ‘A’ property on 27.6.1983.              E

       4. The cause of action in the present suit arose when respondent
no.9 (defendant no.2- Deputy Commissioner of Endowments
Department) allegedly passed an ex-parte order on 24.10.1986 declaring
the suit schedule ‘A’ house and movable properties shown in schedule
‘B’ and other properties belonged to the Ram Mandir, Jagtial in O.A.           F
No.70 of 1985. Pursuant to the same, the appellant (defendant no.4-
Chairman Board of Trustee Sri Ram Mandir) filed a Petition in the
court of Judicial Magistrate, under Section 93(2) of A.P. Charitable and
Hindu Religious Institutions and Endowments Act 1966 (hereinafter
referred to as “the Act”) for the delivery of possession of suit schedule      G
‘A’ and the suit schedule ‘B’ properties alongside other properties of the
Ram Mandir in Cr. M. P No. 173 of 1987.
      5. The respondents-plaintiffs, apprehending abrupt interference
in possession and enjoyment of the suit property, preferred this suit for
declaration of title and perpetual injunction concerning suit schedule ‘A’     H
and ‘B’ properties in O.S. no.69 of 1987.
1176                 SUPREME COURT REPORTS                       [2018] 14 S.C.R.


 A             6. The appellant (defendant no.4) resisted the suit on multiple
       grounds. Although the appellant (defendant no.4) admitted that the
       ancestors of the plaintiffs were performing “Annasatram” at the Ram
       Mandir, he particularly denied that the ancestors of the plaintiffs had
       constructed the suit schedule ‘A’ house about 100 years back along with
       H. No. 6-2-21. The suit schedule ‘A’ house was constructed from the
 B
       funds donated by the devotees. It was further alleged that the plaintiff
       no.1 had filed O.A no.2 of 1973 under Section 77 of the Act before the
       Deputy Commissioner Endowments Department Hyderabad (defendant
       no.2) for declaration that the Ram Mandir is not an endowment property,
       but the same was dismissed by the Deputy Commissioner vide order
 C     dated 26.12.1976. The Deputy Commissioner held that the temple is a
       public institution which is registered and entered in the book of
       endowments. Aggrieved, the plaintiff no.1 had preferred O.S. no.134 of
       1977 under Section 78 of the Act, seeking to set aside the earlier order
       passed by the Deputy Commissioner. This suit was also dismissed on
       19.08.1981 and has now attained finality. However, the plaintiffs being
 D
       the priests got the suit property mutated in their favour during the pendency
       of the proceeding. Since, plaintiff no.1 was the pujari and was looking
       after the affairs of the temple, he misrepresented the matter before the
       Assistant Commissioner of the Endowments Department (defendant
       no.3) at the time of preparing the list of properties of the Ram Mandir
 E     and got his name illegally recorded. The plaintiff no.1 had also concocted
       several documents, such as municipal permission for re-roofing. Further,
       all the mutations and entries made or done in the municipality are in his
       capacity of being a Pujari and custodian of the temple, and not as the
       owner of the property. The appellant further submitted that the Schedule
       B properties are in existence and are in the custody of the plaintiff no.1
 F
       itself, who supressed this fact. Lastly, the appellant, submitted that the
       plaintiffs have exhausted all remedies and have filed the suit to prolong
       the litigation and hence is liable to be dismissed.
              7. The trial court, taking into consideration the aforesaid
       submissions of the parties and the dispute in the present case, framed
 G     the following issues:
             i.   Whether the plaintiffs are entitled for the declaration that
                  the suit property are belonging to them and the schedule
                  “B” properties are not in existence and whether they are
                  not the properties of the Ram Mandir?
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  CHAIRMAN, BOARD OF TRUSTEE, SRI RAM MANDIR            1177
JAGTIAL, A.P v. S. RAJYALAXMI (DEAD) [N. V. RAMANA, J.]

      ii.   Whether the plaintiffs are entitled for the permanent              A
            injunction?
      iii. Whether the suit is barred by the res judicata?
      iv. Whether the court fee paid is not correct?
      v.    To what relief?                                                    B
       8. The trial court, after perusing both oral and documentary
evidence on record, dismissed the suit preferred by the respondents-
plaintiffs. The trial court held that the instant suit is not barred under
the principle of res-judicata, as the earlier suit in O.S. No. 134 of 1977
was dismissed only for the default of the plaintiff no.1. However, as the      C
respondents-plaintiffs failed to prove the source of their title they will
not be entitled to claim the relief of permanent injunction.
        9. Aggrieved by the aforesaid dismissal of the suit, the
respondents-plaintiffs preferred an appeal before the High Court in
Appeal Suit no. 1964 of 1993. The High Court set aside the order of the        D
trial court stating that the same was passed without considering the facts
and law in the correct perspective. Thereby, the High Court vide order
dated 18.11.2006 allowed the appeal preferred by the respondents-
plaintiffs and decreed the suit in their favour by placing reliance on the
documentary and oral evidence placed on record. The High Court
observed that, the alleged suit property was not included in the book of       E
endowments, moreover, the plaintiffs have been paying taxes in regard
to the suit property in their name. Therefore, the defendants in the guise
of a certificate cannot claim the suit premises. Aggrieved, by the aforesaid
order of the High Court decreeing the suit in favour of the respondents-
plaintiffs, the appellant (defendant no.4) has preferred the present           F
appeal.
      10. Heard the learned counsels for both the parties.
       11. The counsel on behalf of the appellant (defendant no.4)
submitted that the High Court gravely erred in decreeing the suit in favour
of the respondents-plaintiffs by merely relying on the entry in the book       G
of endowments as to the boundaries. Further, the counsel averred that,
the plaintiff no.1 manipulated the record showing himself to be the owner
of the suit property, whereas he was a pujari acting as a custodian of the
temple. Lastly, the counsel rested his argument by stating that since the
certificate issued by the Deputy Commissioner in O.A. No. 70 of 1985
                                                                               H
1178                 SUPREME COURT REPORTS                      [2018] 14 S.C.R.


 A     is still valid, the plaintiffs are not entitled to a decree restraining the
       defendants from dispossessing them from Schedule ‘A’ property and
       recovering Schedule ‘B’ property.
              12. On the contrary the counsel on behalf of the respondents-
       plaintiffs submitted that, the suit property was never recorded as an
 B     endowment. On the contrary, the suit property was earlier recorded in
       the name of the ancestors of the plaintiffs and now it devolves in the
       name of plaintiffs. The permission granted by the municipality on
       14.10.1977, to construct the re-roofing strengthens the presumption in
       their favour. Therefore, the High Court was correct to decree the suit in
       their favour by relying on the documentary and oral evidence placed on
 C     record.
            13. At the outset it is pertinent to peruse few significant evidences
       adduced by both the parties.
               14. The plaintiffs had examined P.W.3 (Purohith) to prove that
 D     the suit property was partitioned in the year 1914 vide Arbitration Award
       dated 21.12.1914. But this document was never placed on record in the
       earlier rounds of litigation. On the contrary, plaintiff no.1 in the earlier
       litigation in O.A. No. 2 of 1973 had stated that, the suit property was not
       a Mandir but a house which was built by his father after obtaining due
       permission from the local tehsil in 1927. The aforesaid contradiction
 E     draws suspicion as to the credibility of the witness, as regards to the
       building of the suit house and temple in 1927 and fact of partition pursuant
       to the arbitration agreement in 1914, which are inconsistent.
              15. D.W.2, who was once acting as the fit person on behalf of the
       trust of Ram Mandir stated that, even the suit schedule ‘A’ property was
 F     a part of the endowment property.
               16. D.W.3, further clarified the status of the suit schedule ‘A’
       property by stating that it was used as lodging by the pilgrims and pujaris,
       it was also used to cook food for distribution. D.W.3 also contended
       that, the name of the plaintiffs got recorded as the owners as they were
 G     the pujaris of the temple.
             17. The plaintiffs in order to substantiate their claims furthers
       placed on record documentary evidences comprising of permissions
       granted by the municipality, property tax assessment papers, tax receipts
       and extract of the Book of Endowments of Ram Mandir. After perusing
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  CHAIRMAN, BOARD OF TRUSTEE, SRI RAM MANDIR            1179
JAGTIAL, A.P v. S. RAJYALAXMI (DEAD) [N. V. RAMANA, J.]

evidence on record, we observe that, the respondents-plaintiffs in order       A
to prove their title has relied upon several permissions of the municipality
and tax receipts to prove his title. But while, the aforesaid documents
might imply possession but they cannot be relied to confer title upon the
holder. Further, the respondents-plaintiffs have strongly relied upon the
book of endowments as maintained by the Endowment Department which
                                                                               B
shows the boundaries of the temple. In any case, this document alone is
not sufficient to claim the title over the suit premises as it was only
intended to demarcate the temple premises.
       18. On the contrary, the appellant-defendant no.4 has put forth
the earlier order dated 26.12.1976 passed by the Deputy Commissioner
in O.A. No. 2 in 1973, involving the same suit property. It was                C
categorically held therein, that the suit property is related to the temple,
and the plaintiff no.1 is staying therein to perform his duty. The earlier
order also stated that, the suit property was originally granted as Inam to
the forefathers of the plaintiffs for the conducting pooja and to feed the
brahmins. In the aforesaid order, it also noted that, the plaintiff had        D
removed the idols from the suit temple to meet his personal needs.
Aggrieved, by the aforementioned order in O.A. No. 2 in 1973, plaintiff
no.1 thereafter had filed O.S. No.134/77, before the Chief Judge, City
Civil Court which came to be dismissed on 19.08.1981 for default, hence
has attained finality. Therefore, the present suit involving the same
property seeking similar relief as O.S. No.134/77 is barred by time.           E
However, the defence has also clearly averred that since the plaintiffs
and their forefathers were working as pujaris in the Ram Temple, the
endowment department in order to demarcate the Ram Mandir itself,
mentioned the suit property as the adjoining premises. Keeping in view
the aforesaid facts and circumstances, the plaintiffs have failed to produce   F
any evidence to counter the case put forth by the appellant-defendant
no.4.
       19. It is an established position of law that, the burden to prove
ownership over the suit property is on the plaintiff. (See Corporation of
City of Bangalore vs. Zulekha Bi and Ors. (2008) 11 SCC 306). This             G
court in the case of Parimal vs. Veena (2011) 3 SCC 545, held that:
      19. The provisions of Section 101 of the Evidence Act
      provide that the burden of proof of the facts rests on the
      party who substantially asserts it and not on the party who
      denies it. In fact, burden of proof means that a party has to            H
1180                 SUPREME COURT REPORTS                        [2018] 14 S.C.R.


 A            prove an allegation before he is entitled to a judgment in his favour.
              Section 103 provides that burden of proof as to any particular fact
              lies on that person who wishes the court to believe in its existence,
              unless it is provided by any special law that the proof of that fact
              shall lie on any particular person. The provision of Section 103
              amplifies the general rule of Section 101 that the burden of proof
 B
              lies on the person who asserts the affirmative of the facts in issue.
                                                             (emphasis supplied)
              20. In the present case, the respondents-plaintiffs failed to
       discharge their burden of proof by being unable to furnish necessary
 C     documentary and oral evidence to prove their claim. But, the High Court
       without appreciating the aforesaid evidences and claims made by the
       appellant (defendant no.4), decreed the suit in favour of the respondents-
       plaintiffs by solely relying on the entry made in the book of endowments
       department stating the boundaries of the temple. The aforesaid judgment
       of the High Court is untenable in law as it is based on erroneous
 D     appreciation of evidence.
              21. In light of the aforesaid observations we set aside the judgment
       of the High Court decreeing the suit in favour of respondents-plaintiffs
       in the absence of any evidence to substantiate their claim.

 E           22. Resultantly, we restore the order passed by the Subordinate
       Judge, Jagtial in O.S 69 of 1987. The appeal is allowed, however, without
       any order as to costs. Pending applications, if any, shall also stand disposed
       of.

       Ankit Gyan                                                      Appeal allowed.
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