Full Judgment Text
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CASE NO.:
Appeal (civil) 5178 of 1997
PETITIONER:
Kuldip Chand & Anr.
RESPONDENT:
Advocate General to Government of Himachal Pradesh & Ors. @
DATE OF JUDGMENT: 14/02/2003
BENCH:
S.B. Sinha & AR. Lakshmanan
JUDGMENT:
J U D G M E N T
S.B. SINHA, J :
Whether by mere use of a premises as a ’Dharamsala’ for about
125 years would lead to an inference that the same belongs to a public
trust, is the question involved in this appeal, which arises out of a
judgment dated 19.11.1996 passed by a Division Bench of the High
Court of Himachal Pradesh at Shimla in Regular First Appeal No.44 of
1984 whereby and whereunder the judgment of a learned Single Judge of
the said Court dated 20.3.1984 passed in Civil Suit No.22 of 1979 was
reversed.
Fact of the matter shorn of all unnecessary details is as under :-
Raj Kumar Bir Singh, was the owner of Nahan Estate. He
constructed the said Dharamsala on a land measuring 1702 sq. yards and
18 sq. Girha; comprising of Khasra Nos. 991 with Gosha A & B, 992,
993 with Gosha, 994, 995 with Gosha, 996 and 999 situated in the town
of Nahan as per Misal Haqiyat of Settlement Sani. As per the latest
settlement the new Khewat Khatuni Nos. with Kharsa Nos. are Khewat
No.78, Khatuni Khata Nos. 133 to 137 and Khata No.28/50, 914, 915,
955, 956, 959, 962, 963, 957, 960, 961 & 958. Allegedly, the said
Dharamsala was dedicated to the general public wherefor a stone plaque
on the top of its main gate was affixed. The public in general, the
travellers and in particular those taking part in an yearly fair known as
Renuka Fair admittedly could stay therein for three days without
permission whereafter, permission of the owner of the property was
necessary.
Raj Kumar Bir Singh died in or about the year 1881 whereupon
the properties owned by him devolved upon Surjan Singh. Upon the
death of Surjan Singh, the properties devolved upon Ranzor Singh.
Ranzor Singh died on 14.11.1947 and on his death his properties were
inherited by Jagat Bahadur Singh.
Jagat Bahadur Singh allegedly sold the suit property by reason of
three documents in favour of the appellants herein which were preceded
by agreements of sale executed in the year 1963.
Claiming the said property to be a trust property, a suit was filed
by the Advocate General of the Government of Himachal Pradesh
purported to be under Section 92 of the Code of Civil Procedure alleging
therein that the same had been dedicated to the public for public
purposes by the aforementioned Raj Bir Singh.
It was contended that while dedicating the said property to the
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public Raj Kumar Bir Singh, as founder of the trust became the sole
trustee and remained as such and upon his death the Dharamsala was
looked after and managed by Ranzor Singh in the same capacity. Upon
the death of Ranzor Singh, Jagat Bahadur Singh became the trustee but
he (Original Defendant No.1) started misappropriating the trust property
for his own use and denying the very existence and nature of the said
property. It was alleged that with a view to defeat the trust and grab for
himself the said property, he entered into the aforementioned
transactions.
The cause of action for the said suit was said to have arisen on
25.4.1963 and 1.1.1970 when Defendant No.1 sold the property in suit to
Defendant Nos.2 and 4 respectively and also on 29.3.1968 when
Defendant No.2 sold the property to Defendant No.3
The defendants in their respective written statements denied and
disputed the allegations made in the plaint that the property in question
was dedicated to the public. According to the defendants, the secular
nature or character of the said property was never changed and it all
along remained the personal property of Original Defendant No.1 and
his predecessors in interest.
The Defendants Nos.3 to 5 in their written statements further
claimed that they were bona fide purchasers of the suit property for
valuable consideration; and have effected improvements thereof upon
coming into possession and have been running a tourist hotel therein.
The learned Single Judge having regard to the pleadings of the
parties framed as many as ten issues.
In the said suit, the Plaintiff examined a large number of witnesses
in support of his case. The learned Single Judge on analyzing the
materials brought on records by the parties including the revenue records
came to the conclusion that a public trust was not created and the
Dharamsala in question had all along been treated by Raj Kumar Bir
Singh, Ranzor Singh and Jagat Bahadur Singh as their own property
and not as trustees thereof.
The learned Single Judge further held that Defendant Nos.3 and 5
being in possession of the property in suit for a period of more than
twelve years acquired title by adverse possession.
The plaintiff- Respondent No.1, namely, the Advocate General of
the Government of Himachal Pradesh, preferred a Letters Patent appeal
against the said judgment and decree. The Division Bench by reason of
the impugned judgment reversed the judgment and decree passed by the
learned Single Judge holding that as no instrument was required for
creation of a trust, the only test therefor would be to see as to whether
the general public in exercise of their rights have been deriving the
benefits of institution in sequence of the objects for which it came to be
established. The Division Bench further held that the purported
alienations made by the Original Defendant No.1 in favour of
Defendants Nos.3 to 5 were illegal and they did not derive any right, title
or interest in relation thereto. It wa 7
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5178 OF 1997
Kuldip Chand & Anr.
Appellants
Versus
Advocate General to Government of
Himachal Pradesh & Ors.
Respondents.
J U D G M E N T
S.B. SINHA, J :
Whether by mere use of a premises as a
’Dharamsala’ for about 125 years would lead to
an inference that the same belongs to a public
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trust, is the question involved in this appeal,
which arises out of a judgment dated 19.11.1996
passed by a Division Bench of the High Court
of Himachal Pradesh at Shimla in Regular First
Appeal No.44 of 1984 whereby and whereunder
the judgment of a learned Single Judge of the said Court dated
20.3.1984 passed in Civil Suit No.22 of 1979 was reversed.
Fact of the matter shorn of all unnecessary details is as under :-
Raj Kumar Bir Singh, was the owner of Nahan Estate. He
constructed the said Dharamsala on a land measuring 1702 sq. yards and
18 sq. Girha; comprising of Khasra Nos. 991 with Gosha A ot support
the case of a dedication of the property; (2) The plaintiffs have utterly
failed to discharge their onus of proof to show that there was ever any
dedication of property in favour of the general public; (3) The
administration of the Dharamsala was all along in the hands of the
members of the family; (4) No contribution had ever been made by the
public; and (5) No materials have been brought on records to show that
the suit property was used or managed by the general public.
Mr. Sanghi would urge that the burden of proof heavily lay upon
the plaintiff to show that there had been a complete dedication of the
property in question in favour of the general public which was not
discharged. The learned counsel would contend that a suit under Section
92 of the Code of Civil Procedure would be maintainable only in the
event it is proved beyond any pale of doubt that the trust is a public trust
and not otherwise. In support of the said contention, strong reliance
has been placed in Menakuru Dasaratharami Reddi vs. Duddukuru
Subba Rao [(1957) SCR 1122], The Bihar State Board Religious Trust,
Patna vs. Mahant Sri Biseshwar Das [(1971) 1 SCC 574] and Sri
Radhakanta Deb and Another vs. Commissioner of Hindu Religious
Endowments, Orissa [(1981) 2 SCC 226].
Mr. N.K. Sharma, learned counsel appearing on behalf of
Respondent No.1, on the other hand, would submit that the witnesses
examined on behalf of the plaintiff-respondent were all old and
respectable people. Some of them had worked under the Raja. It was
submitted that the user of the property as Dharmsala has not been and
could not be disputed. Such user having been continued for a period of
125, years the same could not have been treated as private property and,
thus, a complete dedication thereof for user of the public must be
inferred.
Mr. Sharma would urge that the conduct of the contesting
defendants-appellants should also be taken note of, as a power of
attorney holder, i.e. the father of the appellants sold the same in their
favour. It was pointed out that the appellants even did not prove their
title deeds in respect of the suit property.
It was pointed out that the witnesses examined on behalf of the
plaintiff-respondents categorically stated that for maintenance and
management of the property a separate cell was created and the income
derived therefrom was being used for maintenance thereof. Only when
the Dharamsala fell in disrepair, the Town Municipal Committee started
maintaining the same.
The primal question which falls for our consideration is as to
whether the plaintiff has been able to prove that Raj Bir Singh had
created a public trust in respect of the Dharamsala in question.
It is beyond any dispute that a Hindu is entitled to dedicate his
property for religious and charitable purposes wherefor even no
instrument in writing is necessary. A Hindu, however, in the event,
wishes to establish a charitable institution must express his purpose and
endow it. Such purpose must clearly be specified. For the purpose of
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creating an endowment, what is necessary is a clear and unequivocal
manifestation of intention to create a trust and vesting thereof in the
donor and another as trustees. Subject of endowment, however, must be
certain. Dedication of property either may be complete or partial. When
such dedication is complete, a public trust is created in contra-distinction
to a partial dedication which would only create a charity. Although the
dedication to charity need not necessarily be by instrument or grant,
there must exist cogent and satisfactory evidence of conduct of the
parties and user of the property, which show the extinction of the private
secular character of the property and its complete dedication to charity.
[See Menakuru Dasaratharami Reddi vs. Duddukuru Subba Rao
(supra)].
Admittedly, in the instant case, no instrument in writing was
created. Establishment of a Dharamsala may constitute a charitable
trust. It is also not in dispute that Khasra No.995 is recorded as ’Parao’
(vacant site). Khasra No.993 makes a reference of demolished site
relating to ’parao’. In Khasra No.994, ’katcha’ latrine is entered
whereas in Khasra No.992 a ’residential house’ is recorded.
It is not in dispute that in the revenue records the ownership of the
property stands in the name of Ranzor Singh. The right of the general
public is not mentioned therein. Only because a ’sarai’ or ’parao’
existed in the disputed property would by itself not be sufficient to arrive
at a conclusion that the same was a public trust. It appears from the
revenue records that even in the possession column, the names of Ranzor
Singh or Surjan Singh were mentioned. Some individuals have been
shown in possession of the shops and the houses. The undisputed oral
evidence is that the tenants and lessees were paying rents to the owners.
It may be that an engrafted stone was fixed over the main gate of the
Sarai mentioning that the same was constructed by Raj Kumar Bir
Singh, but the same is of little or no value for arriving at a finding that
Raja Bir Singh dedicated the property to the public. For the purpose of
finding out as to whether the Plaintiff has been able to discharge the
heavy burden of proof upon him as to how the same was treated, we may
take notice of the evidence adduced on behalf of the Plaintiff.
P.W. 1, Ram Gopal Abhi, who was the main witness in the case,
admitted that an Adult Education School was also opened on the first
floor of the Dharamsala. He categorically stated that the members of the
public never spent any amount for maintenance of the Dharamsala. He
feigned his ignorance when suggested that horses of the police personnel
were tied or used to be tied in the courtyard inside the Dharamsala. He,
however, accepted that Ranzor Singh appointed a Chowkidar to look
after the Dharamsala and he used to pay his salary from his own pocket.
He also admitted that the disputed Dharamsala was being used on the
occasion of marriage of his sister for accommodating the marriage party
with the permission of Ranzor Singh and for accommodating the barat
they had taken two rooms in the first floor and these were the V.I.P.
rooms which could be utilized by any person only with the permission
of Ranzor Singh.
P.W.2, Des Raj, stated that the travellers used to tie their cattle
and horses etc. in the open site. The public in general/visitors/travellers
used to stay in the disputed Dharamsala wherefor no charge used to be
taken. He, however, did not know that the Chowkidar who used to look
after the said Dharamsala was maintaining any register or not. Renuka
Fair admittedly used to be held in the month of kartic every year.
P.W.3, Kanshi Ram, stated that the Dharamsala is a double storey
building having about two rooms in the upper storey and three or four
rooms in the ground floor; whereas P.W.1, Shri Ram Gopal Abhi stated
that there were about 24 rooms in the Dharamsala.
P.W.4, Phool Chand, in his evidence stated that the public could
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stay in the Dharamsala for three days without permission but thereafter
the permission of Ranzor Singh was necessary. He admitted that about
20-22 years back, one saw mill had been fixed in a room of the disputed
Dharamsala. He accepted that the public did not contribute anything for
maintenance and upkeep of the Dharamsala nor any register was
maintained. He also accepted that only the private persons of Raja
Sahib used to stay in the two rooms of the upper storey.
P.W.7, Dalip Singh, who was married at Nahan and whose
marriage party came to Nahan from Shakargarh, stated that the
Dharamsala had only two rooms in the first floor and many rooms in the
ground floor. He, however, could not say as to whether any permission
had been taken by his in-laws for use of the Dharamsala.
P.W.8, Jagmohan Ramol, who was a Sanitary Inspector, stated :
"....One Chowkidar used to sit in the
Dharamsala and Dharamsala had been
constructed by the ancestors of Maharaja Jagat
Bahadur. They were the owners of the
Dharamsala. I do not know if the trucks of
Surjan Singh were parked in the vacant site. It
is, however, a fact that the trucks of different
persons used to be parked there."
P.W. 14, Suraj Lal Bansal, who was the power of attorney holder
of Maharaja Jagat Bahadur Singh stated :
"There were two shops in the disputed
Dharamsala. The shopkeepers used to pay the
rent to Bahadur Singh for further payment to
Maharaj Bahadur Singh and Kanwar Ranjor
Singh. The shopkeepers never paid rent to the
Chowkidar. The travellers or the public who
used to stay in the disputed Dharmasala were
not to pay anything for their lodging. There
were no orders of receiving any payment from
such public persons"
He further stated :
"Kanwar Ranjor Singh and Maharaj Jagat
Bahadur had one temple of their own within the
Mahal area. They and their forefathers had also
constructed temples in nahan Town and these
temples were for public purposes. I did not see
any Trust deed by I have only stated that
maharaj Jagat Bahadur and Kanwar Beer Singh
were trustees because they used to maintain the
disputed Dharamsala. Defendants No. 4 and 5
are in possession of the property, where the old
disputed Dharamsala was situated. From
outside they have constructed some shops which
are visible from outside. I never went
inside".
He accepted that the rent received from the two shops was too
meagre to maintain the disputed Dharamsala and Jagat Bahadur Singh was
maintaining the same.
If the Dharamsala was constructed for the purpose of Sarai within
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the meaning of provisions of the Sarai Act, 1867 still it may not amount to
creation of a public trust. Dharamsala was not even registered under the
Sarai Act. No evidence had been brought on record to show that the
provisions thereof had been complied with either by the ruler of the State
or by the Chowkidar.
All PWs and in particular PW who was in service of the Raja, did
not state that the provisions of the Sarai Act had been complied with.
P.W.1, as noticed hereinbefore, categorically stated that the rooms in the
first floor were meant for use by the family members of the Raja and/or by
others with his permission. A part of the Dharamsala which, thus,
remained under the complete control of the owner of the property and,
thus, the same cannot answer the description of a public trust.
Long user of a property as Dharamsala by itself would not lead to an
inference that dedication of the property by Kunwar Bir Singh in favour of
the public was complete and absolute. Had such dedication been made, the
same was expected to be recorded in the revenue records.
In terms of Section 35 of the Evidence Act, the entries in the
revenues record would be presumed to be correct; although the same is a
rebuttable one.
Another aspect of the matter must also receive serious consideration.
It appears from the evidence of PW 8 that Bir Singh and his successors
have constructed many temples for general public. If a trust was created it
was expected that all the trust properties would be managed by some
trustees and not by the rulers on their own. Furthermore, if there were
other properties which were also subject matter of public trust why no
claim was made in relation thereto.
From the materials brought on records by the parties, as noticed
hereinbefore, the following facts emerge : (1) That the shops were let out
to the other people; (2) People could come and stay in the Dharamsala but
for stay of more than three days, only upon seeking permission therefor;
(3) Rent received from the shops were being used by the owners for their
own purpose; (4) Dharamsala was being managed/maintained from the
personal funds of the owner; (5) The management and control of the
Dharamsala was all along with the owners; (6) A school was opened in the
Dharamsala; (7) A chowkidar was appointed by Ranzor Singh to look
after the Dharamsala and his salary used to be paid by the owner from his
own pocket; (8) Dharamsala could be used for marriage purpose but
only with the permission of the owners; (9) The first floor rooms could be
used only by the officers or by others with the permission of the owner;
(10) The Dharamsala was ordinarily being used by the pilgrims only
during fair; (11) The public never contributed anything for maintenance of
the Dharamsala; (12) No member of public had any say as regards
management of the Dharamsala and had no legal right to use the same;
(13) No member of public ever participated in the management of the
Dharamsala; (14) No manager had ever been appointed to look after and
manage the property; (15) The Dharamsala was not registered under the
Sarais Act; (16) There is no evidence to show that the owners acted as
shabaits or trustees.
A dedication for public purposes and for the benefit of the general
public would involve complete cessation of ownership on the part of the
founder and vesting of the property for the religious object. In absence of
a formal and express endowment, the character of the dedication may have
to be determined on the basis of the history of the institution and the
conduct of the founder and his heirs. Such dedication may either be
compete or partial. A right of easement in favour a community or a part of
the community would not constitute such dedication where the owner
retained the property for himself. It may be that right of the owner of the
property is qualified by public right of user but such right in the instant
case, as noticed hereinbefore, is not wholly unrestricted. Apart from the
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fact that the public in general and/or any particular community did not
have any right of participation in the management of the property nor for
the maintenance thereof any contribution was made is a matter of much
significance. A dedication, it may bear repetition to state, would mean
complete relinquishment of his right of ownership and proprietary. A
benevolent act on the part of a ruler of the State for the benefit of the
general public may or may not amount to dedication for charitable purpose.
When the complete control is retained by the owner - be it be
appointment of a Chowkidar; appropriation of rents, maintenance thereof
from his personal funds dedication cannot be said to be complete. There
is no evidence except oral statements of some witnesses to the effect that
Raj Kumar Bir Singh became its first trustee. Evidence adduced in this
behalf is presumptive in nature. How such trust was administered by Raj
Kumar Bir Singh and upon his death by his successors in interest has not
been disclosed. It appears that the family of the donor retained the control
over the property and, therefore, a complete dedication cannot be inferred
far less presumed. Furthermore, a trust which has been created may be a
private trust or a public trust. The provisions of Section 92 of the Code of
Civil Procedure would be attracted only when a public trust comes into
being and not otherwise.
Undoubtedly, bequests for construction of a Dharamsala will be for
a charitable purpose. It is not necessary that the properties must be
dedicated to any particular deity but what is essential is complete
dedication for a charitable purpose. Such dedication may be made to an
object both religious and of public utility.
In Maharani Hemanta Kumari Debi and others vs. Gauri Shankar
Tewari and others [(1940-41) Law Reports, I.A., Vo.68, 53], the Privy
Council while reversing the decision of the Allahabad High Court reported
in (1936) I.L.R. 58, 818 observed :
"A bathing ghat on the banks of the Ganges
at Benares is a subject-matter to be considered
upon the principles of the Hindu law. If dedicated
to such a purpose, land or other property would be
dedicated to an object both religious and of public
utility, just as much as is a dharamsala or a math,
notwithstanding that it be not dedicated to any
particular deity. But it cannot from this
consideration be at once concluded that in any
particular case there has been a dedication in the
full sense of the Hindu law, which involves the
complete cessation of ownership on the part of the
founder and the vesting of the property in the
religious institution or object. There may or may
not be some presumption arising in respect of this
from particular circumstances of a given case, but,
in the absence of a formal and express endowment
evidenced by deed or declaration, the character of
the dedication can only be determined on the basis
of the history of the institution and the conduct of
the founder and his heirs. That the dedication of
property to religious or charitable uses may be
complete or partial is as true under the Benares as
under the Bengal school of Hindu law. Partial
dedication may take place not only where a mere
charge is created in favour of an idol or other
religious object, but also, as Mr. Mayne in his well
known work was careful to notice, "where the
owner retained the property in himself but granted
the community or part o 7
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IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.5178 OF 1997
Kuldip Chand & Anr.
Appellants
Versus
Advocate General to Government of
Himachal Pradesh & Ors.
Respondents.
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J U D G M E N T
S.B. SINHA, J :
Whether by mere use of a premises as a
’Dharamsala’ for about 125 years would lead to an
inference that the same belongs to a public trust, is
the question involved in this appeal, which arises
out of a judgment dated 19.11.1996 passed by a
Division Bench of the High Court of Himachal Pradesh at Shimla in
Regular First Appeal No.44 of 1984 whereby and whereunder the
judgment of a learned Single Judge of the said Court dated 20.3.1984
passed in Civil Suit No.22 of 1979 was reversed.
Fact of the matter shorn of all unnecessary details is as under :-
Raj Kumar Bir Singh, was the owner of Nahan Estate. He
constructed the said Dharamsala on a land measuring 1702 sq. yards and
18 sq. Girha; comprising of Khasra Nos. 991 with Gosha A same.
This Court in Mahant Ram Saroop Dasji vs. S.P. Sahi, Special
Officer-in-Charge of Hindu Religious Trusts and others [AIR 1959 SC
951] traced the history of public trust and pointed out that whereas under
English law all trusts should be public trusts, under Hindu law, there may
be private trust also. It was held that all the statutes operating in the field
including Section 92 of the Code of Civil Procedure apply to public trust
alone.
In the Bihar State Board Religious Trust, Patna vs. Mahant Sri
Biseshwar Das (supra), this Court upon noticing the decision of the Privy
Council in Babu Bhagwan Din vs. Gir Har Saroop [67, I.A., 1] observed :
"Thus, the mere fact of the public having been
freely admitted to the temple cannot mean that
Courts should readily infer therefrom dedication to
the public. The value of such public user as
evidence of dedication depends on the
circumstances which give strength to the
inference that the user was as of right. No such
evidence of any reliable kind was available to the
appellant-Board in the instant case."
This Court held that the charitable trust might either be created by a
grant for an express purpose or a grant having been made in favour of an
individual or a class of individuals, that individual or that class of
individuals might, after obtaining the grant, create a charitable trust but
here there is no evidence as regards such grant.
Yet again in Sri Radhakanta Deb and Another vs. Commissioner of
Hindu Religious Endowments, Orissa (supra), upon taking into
consideration a large number of decisions of the Privy Council as also of
this Court, it was observed :
"It may thus be noticed that this Court has
invariably held that the mere fact that the members
of the public used to visit the temple for the
purpose of worship without any hindrance or
freely admitted therein would not be a clear
indication of the nature of the endowment. It is
manifest that whenever a dedication is made for
religious purposes and a deity installed in a
temple, the worship of the deity is a necessary
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concomitant of the installation of the deity, and
therefore, the mere factum of worship would not
determine the nature of the endowment. Indeed if
it is proved that the worship by the members of the
public is as of right that may be a circumstance
which may in some cases conclusively establish
that the endowment was of a public nature."
This Court laid down the following tests as sufficient guidelines to
determine on the facts of each case whether an endowment is of a public or
private nature :
(1) Where the origin of the endowment cannot be ascertained, the
question whether the user of the temple by members of the
public is as of right;
(2) The fact that the control and management vests either in a
large body of persons or in the members of the public and the
founder does not retain any control over the management.
Allied to this may be a circumstance where the evidence
shows that there is provision for a scheme to be framed by
associating the members of the public at large;
(3) Where, however, a document is available to prove the nature
and origin of the endowment and the recitals of the document
show that the control and management of the temple is
retained with the founder or his descendants, and that
extensive properties are dedicated for the purpose of the
maintenance of the temple belonging to the founder himself,
this will be a conclusive proof to show that the endowment
was of a private nature;
(4) Where the evidence shows that the founder of the endowment
did not make any stipulation for offerings or contributions to
be made by members of the public to the temple, this would
be an important intrinsic circumstance to indicate the private
nature of the endowment.
None of the aforementioned test is satisfied in the instant case. It is
true that the appellants herein did not produce their title deeds wherefor an
adverse inference could be drawn, but transfer of the suit premises in their
favour by the owner thereof stands admitted and in fact the said transaction
constituted cause of action for filing the suit. In any event, their possession
over the disputed premises stands admitted.
We furthermore fail to understand as to why the public in general
did not exercise their right, if any, in respect of the suit premises for a long
time and at least since 1963.
It may be that a part of the Dharamsala in question was used by the
general public for a long time but continuance of such a benevolent
acts/charity would not lead to creation of a trust which alone is the
determinative factor for entertaining a suit at the instance of the Advocate
General in terms of Section 92 of the Code of Civil Procedure.
For the foregoing reasons, we are of the opinion that the judgment
and decree passed by the High Court cannot be sustained. The appeal is
allowed accordingly. However, in the facts and circumstances of this case,
there shall be no order as to costs.