1. The facts giving rise to this appeal have already been stated in our order dated 20th of October, 1955 deciding the preliminary objection of the respondents, and, therefore, they need not be repeated. This judgment may be read in continuation of the said order.
2. The trial court had framed the following issues on the basis of the pleadings:
(1) Whether the ground of the Chowk on the southern, western and northern sides of the temple is in ownership of the plaintiff.
(2) Whether the Bhetpatra is illegal, inoperative and inadmissible in evidence.
(3) Whether the plaintiff alone is entitled to bring the suit.
(4) Whether the actions of the defendants cause inconvenience to the plaintiff.
(5) What relief the plaintiff is entitled to.
3. The trial court decided all the issues in the plaintiff's favour and decreed the suit.
4. Learned counsel for the appellants has attacked the finding of the trial court on the first three issues. It is urged that the plaintiffs have based their suit on the Bhetpatra Ex. P. 22, but it is void and inoperative for several reasons and, therefore, it could not effect a valid gift in, their favour. It has been pointed out that the Bhetpatra Ex. P. 22 was not verified by the Registrar from all the executants thereof.
Moreover, the donee in this case was not an ascertained person and there was no valid acceptance on behalf of the donee. It is, therefore, contended that the gift was invalid according to Sections 122 and 123, Transfer of Property Act. It has been further urged that even if it be taken for granted that the Panch Jain Agarwals of Udaipur had made a gift in favour of the Sakal Digambar Jains, the title would pass only to the Sakal Digamber Jains and they alone could bring the suit, but the Mahamantri of Shri Parshvanath Digamber Jain Vidyalaya had no right to do so.
According to learned counsel, the plaintiff was unable to prove that Sakal Digambar Jains had passed a valid title in favour of the Vidyalaya and, therefore, the present suit was incompetent. It is also urged that the trial court had committed an error in recognising the title of the plaintiff over the disputed property on the basis of adverse possession and that the trial court should not have gone into this matter because the plaintiff had not claimed title on the basis of adverse possession in the suit.
Lastly, it has been urged that the Mahamantri alone had, at any rate, no right to bring the present suit and for that reason alone, it should have been dismissed. It may be mentioned here that the trial court had decided issue 3 first and issues 1 and 2 together thereafter and it seems proper to deal with the matter in the same sequence.
5. Regarding issue 3, it would suffice to say that the objection of the learned counsel for the appellants is more technical than substantial. He has tried to read the plaint as if the suit had been instituted by Shri Gulabchand son of Shivlal Taya of Udaipur with the designation of Mahamantri Shri Parshvanath Digambar Jain Vidyalaya. In fact, however, it is not so.
A careful perusal of the plaint shows that the suit has been filed by the registered Society which goes by the name of Shri Parshvanath Digambar Jain Vidyalaya, Mewar and the name of its secretary Shri Gulabchand Taya has been mentioned because the plaint is signed by him. This is apparent from the very first para of the plaint in which it has been stated by the plaintiff that their institution was Shri Parshvanath Digambar Jain Vidyalaya Merwar which was registered as society No. 6 under the Merwar Societies Registration Act (Act No. 7 of 1941). This para has been admitted as true by the defendants in their written statement.
Section 7, Mewar Societies Registration Act (Act No. 7 of 1941) provided that the society registered under that Act would be a legal entity and that its president, chairman, secretary, trustee or any other person appointed by its executive committee for the purpose would be able to sue and be sued against. Documents Exs. P. 20 and P. 21 produced, by the plaintiff show that the said society had framed its rules. In para No. 18 thereof, the Mahamantri was given the power to bring legal action in the court on behalf of the Society.
It is not disputed that Shri Gulabchand son of Shivlal Taya was the Mahamantri of the plaintiff Society at the date of the institution of the suit. He was therefore authorised to sign the plaint. It has been observed by their Lordships of the Privy Council more than once that the pleadings in India and specially those in the mofussil should not be construed very strictly, and that the 'Court must look to the essential justice of the case, without considering whether matters of form have been strictly attended to. (Ghirdharee Singh v. Koola-hul Singh 2 Moo Ind App 344 (A).)
It is no doubt true that the court of the District Judge at Udaipur could not be called a mofussil court in the strict sense of the term. But a perusal of the pleadings would show that even by the year 1946, the pleadings presented in that court were no better than those which are generally to be seen in the mofussil courts. Both the plaint and the written-statement in the present case begin with an invocation to God and are addressed 'Sidh Shri 105 adalat District Judge City from Shri
It is, therefore, quite clear that much attention was not given to the form of pleadings in Udaipur by the time the present suit was instituted and the objections raised by learned counsel on the technicalities relating to form cannot be allowed. The trial court has, therefore, committed no error in deciding issue 3 against defendants-appellants.
6. Let us now turn to issues 1 and 2. As stated above, learned counsel has made strenuous attack on the validity of gift made by Sakal Digambar Jain Agarwal Panch, Udaipur to the Sakal Digambar Jain Panch vide Ex. P. 22. In addition to his arguments referred above, he has also pointed out to a clause appearing in Ex. P. 22 which says that the management of the Dharamshala would be carried on by Sakal Digambar Jains Udaipur and that if the said Samaj failed to do BO, the Panch Agarwals would take up the management.
On the basis of this clause, it has been urged that if the Panch Agarwals had given away the property, they could not reserve the right of management for themselves and this shows that they had not given away their entire rights by way of gift. We have given due consideration to the arguments advanced by the learned counsel, but we think that these arguments are of no avail because they are based on the provisions of Sections 122 and 123, Transfer of Property Act, which was not in force in Udaipur at the time when Ex. P. 22 was executed.
Learned counsel for the respondent has urged in reply that the Panch Agarwals had not made a gift of the property to the Sakal Digambar Jains Within the meaning of Section 122, Transfer of Property Act. They had, really speaking, made an endowment according to Hindu Law for the religious and charitable purposes mentioned in Ex. P. 22. This argument seems to be correct.
As mentioned in D. P. Mulla's Principles of Hindu Law (11th Edition) para 404, any Hindu of sound mind, who is not a minor, may dispose of his property by gift for religious and charitable purposes. Such a gift need not be even in writing unless it is created by a will. According to the learned author, 'All that is necessary is that the religious or charitable purposes should be clearly specified, and that the property intended for the endowment should be set apart for or dedicated to those purposes ..... Noreligious ceremony such as sankalp or samarpan is necessary and a clear and unequivocal manifestation, of intention to create a trust and vesting of the same in the donor or another as a trustee is enough to constitute dedication.' Ex. P. 22 shows that in the present case, the Panch Jain Agarwals of Udaipur seem to have had an urge to widen the narrow circle of their sect, establish better social contacts with the larger group of Jains called Sakal Digambar Jain and as a gesture of their generosity, they parted with their immovable property lying all around the temple and created an endowment thereof with Sakal Digambar Jain Panches as managers for the purposes of Jain Dharamshala, Vidyalaya, Chhatralaya, etc.
There was thus a definite dedication of property for charitable cum religious purposes. There was no vagueness about the endowment. The Panch Jain Agarwals completely divested themselves of their rights in the property, reserved the right of management only if the Sakal Digambar Jain Panchas failed to undertake the management. Learned counsel for the appellants has not been able to point out how this could not be a valid endowment in case it to be taken to be a dedication for the purposes mentioned above.
7. Learned counsel for the appellants has next urged that even if this may be taken to be an endowment in favour of the Sakal Digambar Jain Panchas the plaintiff Society has not been able to show that the Sakal Digambar Jain Panchas had transferred the management to the Society and, therefore, the plaintiff had no right to bring the suit. This argument is also not tenable because the plaintiff has not brought the suit merely on the basis of title but also on the basis of possession.
It is true that the plaintiff has not been able to show if any valid deed of transfer was executed by the Sakal Digambar Jain Panchas in favour of Shri Parshvanath Digambar Jain Vidyalaya, Udai-pur; but it appears from Ex. P. 20 and the oral evidence that Shri Parshvanath Digambar Maha-vidyalaya Society, Udaipur, is nothing but a sort of select body carved out of the Sakal Digambar Jain Panchas in order that it may be able to manage the property effectively and efficiently.
It further appears from the evidence on record that this Society has, in fact, been managing the property ever since the Bhetpatra Ex. P. 22 was executed in Samwat year 1980. Thus, the plaintiS Society is the de facto manager of the property, if not de jure.
8. Learned counsel for the appellants has urged that unless the plaintiff society was able to prove its title perfectly, it could not bring the present suit on the basis of its possession or de facto managership in support of his argument, he has referred to the following observation of Mookherjee J. in the case of Ram Chandra Sil v. Ramanmani Dasi, 1917 Cal 469 (AIR V 4) (B).
'It is well settled in this Court by decisions which are binding upon us, that mere previous possession will not entitle a plaintiff to a decree for recovery of possession except in a suit under Section 9, Specific Relief Act.'
it may be pointed out that the view expressed by Mukerjee J. cannot be taken to be the settled view of that Court because in an earlier case of the same Court in Shama Soonduree Debia v. Collector of Maldah, 12 WR 164 (C) Mitter J. had made the following observation which obviously does not support the view of Mukherjee J. Mitter J. said,
'If the plaintiff can prove that she was in possession of the property in dispute until she was ousted by the defendant against her consent, and without the intervention of a Court of law, the defendant ought to be called upon to prove his title. If the defendant succeeds in proving his title, the plaintiff ought then to be required to prove a better one. That evidence of possession, however short, is evidence of title, is an undisputed proposition of law, and it therefore follows that such evidence is at least sufficient to make out a prima facie case in favour of the party by whom it is given.'
9. In a subsequent case, Currimbhoy & Co. Ltd. v. L.A. Creet, 1930 Cal 113 (AIR V 17) (D), learned Judges of the same High Court have held that
'Trespass is a wrong to another's possession; it is an injury to a possessory right and therefore the proper plaintiff in an action for trespass to land is the person who is in actual or constructive possession of the land i.e., entitled to immediate possession.....
The right to possession is all important in an action for trespass; and a mere right of property without a right to possession is not sufficient to support the action. Right to possession is one of the constituent elements of the complete right of property; and it has been laid down from very old times that a person with a right to possession can always maintain an action of trespass against a wrongdoer.
So also in the case of a person in actual possession. Such a person has against a mere stranger or wrong-doer the same remedies as-if he had the right to possession and he can as against the stranger maintain trespass and in general the stranger who violates his possession cannot justify the violation by showing that the possession was without title or even by showing that it was wrongful, unless he further proves not only that a third person was entitled to the possession but that he, the stranger, had acted with the authority of the said third person.'
10. It may be further pointed out that in the case of Bazmirkhan v. Rustam Khan, 1919 All 43 (AIR V 6) (E), it was held by learned Judges of the Allahabad High Court that a person in possession of property, however imperfect his title may be, has good title as against the whole world, except the true owner, and such title is capable of descending by inheritance to his heirs.
It was further held that unless the true owner came forward to assert a claim to the property, such heirs were entitled to continue in possession. A similar view was taken by the learned Judges of the Patna High Court in the case of Ranjit Singh v. Jhori Singh, 1929 Pat 601 (AIR V 16) (F). The learned Judges did not accept the view of Mooker-jee J. in 1917 Cal 439 (AIR V 4) (B).
On the other hand, they referred to a number of cases of their own High Court and also of the Bombay High Court and held that possession was prima facie proof of title, that a previous possession could be a good foundation for a suit in ejectment even though the plaintiff was unable to establish his title, provided that the defendant was unable to establish a better title to the disputed property. They referred to the following observation made in the case of Bodha Ganderi v. Ashloks Singh, 1927 Pat 1 (AIR V 14) (G).: --
'Where a person who has been in possession of property for several years without title is dispossessed by another, who also has no title, the former is entitled to be restored to possession.'
11. Salmond in his Law of Torts (10th Edition) page 207 has summed up the position in the following words while, dealing with the question Whether justerti can be a defence in action of trespass. Says he,
'The mere de facto and wrongful possession of land is a valid title of right against all persons who cannot show a better title in themselves, and is therefore sufficient to support an action of trespass against such persons. Just as legal title to land without the possession of it is insufficient for this purpose, so conversely the possession of it without legal title is enough. In other words, no defendant in an action of trespass can plead the justerti -- the right of possession outstanding in some third person -- as against the fact of possession in the plaintiff.'
12. In the present case, it is proved beyond any doubt that the plaintiff Society has constructed large buildings in the shape of Uharamshala, and Vidyalaya over a large portion of the land which was given away by the Digambar Jain Agarwal Panchas to Sakal Digambar Jain Panchas by Ex. P, 22. It is also proved that it is in actual possession of the land which is still lying open.
The plaintiff's allegation is that ' the defendants are encroaching upon the property in the plaintiff's possession without any right. The defendants have not been able to prove that they have any title over the property. It is true that they had a title over this property before the 6am-wat year 1980, but they divested themselves of their rights by Ex. P. 22 and there is no evidence to show that they had possession or management over this property thereafter.
The defence of the appellants' learned counsel about the imperfectness of the plaintiff's title is of no avail. If Sakal Digambar Jain Panchas have any grievance against the present plaintiff, that may be a subject matter of dispute between them. The defendants have no right to encroach upon the disputed property by Simply saying that the title vests in a third party, namely, Sakal Digambar Jain Panchas. This objection, therefore, is of no avail to the appellants and is fit to be dismissed.
13. Learned counsel for the appellants has next urged that his clients do not contest the respondent's possession over that part of the land which is now occupied by Dharam Shala, Vidyalaya and other buildings. It is urged that the appellants should be deemed to be in possession of the open land on which no building has yet been constructed by the respondent. It is also urged that Ex. p. 22 does not show that all the open land except that which was occupied by the temple was given away.
We have considered this argument also and we think that there is absolutely no force 'therein It is quite clear from Ex. P. 22 that the Sakal Digambar Jain Agarwal Panches had given' away all the open land around the temple. The appellants cannot be considered to have retained title or possession over the land which is still lying open simply because the respondents have not been able to construct buildings thereon.
It was not necessary for the respondent to have constructed buildings on all the land and simply because a portion thereof is still lying vacant, it cannot be said that it is not in possession of the respondent. The respondent has produced a copy of the resolution Ex. P, 23 dated 14-11-1945. It shows that the Panch Jain Agarwals wanted a strip of land 2 feet wide just behind the temple in order to construct a ramp to give support to the back wall of 'the temple and this permission, was given to them on that date.
It further appears that two of the appellants namely, Deeplal and Bansilal were present that day and they were also signatories to the resolution. This document clearly shows that the entire land was in the possession of the respondent and even for a strip of land 2 feet wide, the appellants had to obtain the permission of the respondent. If the entire land belonged to the appellants, there was absolutely no necessity for getting the permission for such a small piece of land from the plaintiff. There is thus no force in this argument of the appellants as well.
14. The trial court has rightly issued the injunction in favour of the respondents. On theappellants' own showing, it is clear that they aretrying to encroach 'upon the land in possession ofthe respondents and, therefore, there is no goodground for interfering with the judgment of thetrial court. The appeal is dismissed with costs.