ANNEXURE-P/5

Court: Additional Civil Judge, Judge No.-2, Bikaner (Raj.)

Presiding Officer Vijay Kumar, R. J. S

Original Civil Suit No. 336 / 2001
C. I. S. No. 1517 / 2014

1. Shri Jain Shwetambar Oswal Shri Sangh Khartargachh Trust

Bikaner through President/ Trustee Shri Ratanlal Nahata son of
Shri Bansilal Nahata, caste Nahata Oswal, resident of Nahato Ka
Mohalla, Bikaner.
2. Mohanlal son of Shri Sohanlal Pugalia, caste Oswal, Trustee/
Treasurer, resident of Nahato ka Mohalla, Bikaner.
--Plaintiffs
Versus
1. Ramdev son of unknown, caste Suthar, resident of Sutharo Ki
Badi Guwad, present Mohalla Nahtan, Bikaner.
2. Sanjay son of Ramdev caste Suthar resident Sudharo ki Badi
Guwad present Mohalla Nahtan, Bikaner. (Written by order dated
28.03.17)
3. Assistant Commissioner, Devsthan Department, Bikaner
--Defendent

Claim Declaration and for Possession of two Safe Wake Bada with
Upasara Shri Jain Shwetambar Oswal Shri Sangh Khartargachch
Trust Mohalla Nahtan, Bikaner and to appoint receiver and to obtain
permanent injunction against defendants on the basis of evidence
under Order 7 Rule 1 CPC
Attendance -
Shri Nand Kishore Jajda, Advocate for Plaintiff.
Shri Tribhuvan Shankar Bhojak Advocate for the Respondents.

Judgement Date: 18.05.2018

1. The plaint was originally filed before the Hon'ble District Judge,
Bikaner on 02.01.1989 on behalf of the plaintiffs Shri Jain
Shwetambar Oswal Shri Sangh Khartargachh Trust Bikaner
through President/Trustee Ratanlal Nahata and Treasurer/Trustee
Mohanlal against the defendants Ramdev, Sanjay and Assistant
Commissioner, Devsthan Department, Bikaner, through
advocate, which was in due course of time transferred to this
Court for hearing and disposal, which is now being disposed of.

2. In brief, the facts of the plaint are that the Plaintiff is a public trust
which is duly registered under the Rajasthan Public Trust Act in
the register of public trusts of the Assistant Commissioner
Devasthan Department, Jodhpur and Bikaner division at number
272 whose chairman is Ratanlal Nahta Trustee and Plaintiff No.-2
is the treasurer/trustee of the trust who is the competent and
authorized person to file the claim. The plaintiff Pranyas has an
immovable property Upasara Bada situated in Mohalla Nahtan in
Bikaner city, whose lease number is Misal 296 dated Marjua
18.10.27 Tehsil Mal Mandi No 162 signed Revenue Commissioner
dated 23.04.29 Dargazi 404111/1 whose boundary, in the North
side is House of Kishan Gopal Sevag and Kotdi of Danmal Nahta,
Upasara of plaintiff in the South, Bada Upasara Khartargachh in
the East and House of Kishan Gopal Sevag and road on the West
is situated which is in the name of Shri Jinchand Suri disciple Shri
Jinsiddh Suri. Before the registration of the plaintiff trust, a lease
was made in the name of Shri Pujya Shri Jinchand Suri, Acharya
of Shri Sangh of Oswal Samaj, Khartargachh, the predecessor in
title of the plaintiff trust, because as per the customary law of
Oswal Shri Sangh, which has always been accepted in Oswal
Samaj for the past hundreds of years, the title deeds of
immovable properties, temples, worships and fences of Oswal
Shri Sangh have been made in the name of Shri Pujya of Oswal
Shri Sangh, in respect of which Shri Pujya's status has always
been that of a manager, and in any case, Shri Pujya did not have,
nor can he have, the right to transfer the properties of Oswal Shri
Sangh acquired in this manner to Shri Pujya and this custom is the
most prevalent law in Oswal Shri Sangh Samaj. In para no. 10 of
the plaintiff's predecessor in title, Shri Pujya is mentioned in para
no. 4, as one who have been looking after and managing the
above-mentioned immovable property and the plaintiff has been
Shri Pujya of Oswal Shri Sangh. The above Bada is adjacent to the
north of Acharya Khartargachchh Upasara. The leased Bada is
recorded as the Upasara of Shri Jinchandra Suri Ji, whose door is
always open in the disputed Bada and the building of the Upasara
is also built on top of this leased Bada and there is a way for the
devotees, visitors, worshippers and preachers to go to the
Upasara and the temple located in it. During the time of former
Shri Pujya Shri Jin Som Prabhu Suri, between 1950 and 1965, Shri
Poonamchand and Shri Pratapchand used to live as salaried
priests in the above Bada, whose status was to serve and worship
Shri Pujya in the temple and Upasara, and hence, arrangements
were made for them to stay in this Bada as licensees. Later a
woman named Asha was appointed by the plaintiff Pranyas Trust
for cleaning the Upasara temple and Asha was given the facility to
stay in this Bada as a licensee. Asha died on 20.11.88. After the
death of Asha on 27.12.88 the defendants wrongly registered two
rows of this disputed Bada. Asha died on 20.11.88. After the
death of Asha, on 27.12.88, the defendants took illegal
possession of two Safas of the disputed Bada by falsely declaring
themselves as trustees and started coming and going and broke
the pagothis on the top of the Safas and tried to break the wall of
the Upasara by digging the ground adjacent to the visible wall of
the Bada. When this was stopped by the trustees of the plaintiff
trust, the defendants threatened on 31.12.88 to break the Safas
of the Bada, make alterations and transfer it in an improper
manner and said that the defendants will break it and get it
repaired afresh. They will get electricity and water connection.
Therefore, the plaintiff has the right to get a receiver appointed in
the said Bada against the defendants and obtain prohibitory
decree against the defendants that they should not demolish,
alter, transfer the Bada in question from the district court and take
electricity and water connection. The status of the defendants is
that of an encroacher. Therefore, the plaintiff is entitled to get Rs.
200 per month as interim relief against the defendants. The
disputed immovable property is the property of the public trust,
which has been valued at Rs. 14,000/- and the court fee of Rs.
200/- is to be payable and presented within the period, under
section 27 of the Rajasthan Act. Defendant No. 3 has been made
a secondary defendant and no relief of any kind is sought against
him. Finally, a declaratory decree should be issued against the
defendants to the effect that the said Bara is the property of the
plaintiffs and the encroachment disputed two maps of red colour
should be vacated and possession should be given to the
plaintiffs, a receiver should be appointed for the care and security
of the disputed immovable property and possession should be
given to the receiver, a judgement of Permanent Injunction should
be passed against the defendants for not doing any demolition,
cancellation, transfer, repair or construction in the disputed
immovable property, nor should they take electricity or water
connection in the immovable property, nor should they create
hindrance to the trustees of the plaintiff institution, devotees,
visitors and other general public from coming to the Upasara, nor
 should they do any act or inaction which may harm the interests
of the plaintiff public trust and the plaintiffs are entitled to receive
Rs. 200/- per month as interim benefit till they get actual
possession.

3. Defendant No. 1 and 2 submitted a reply through advocate and

termed most of the statements in the plaint as false and alleged
that the legal existence of the plaintiff trust is not accepted.
Despite being asked, the plaintiffs have not told who created this
alleged trust, how and when. When no valid trust came into
existence as per law, then it is futile to get a non-existent trust
registered by deceiving the Devsthan Department. No trust can
come into existence by such registration, nor can a legally non-
existent trust be considered to exist, nor can the Mahaka
Devsthan decide the ownership of private property. When the
trust itself does not exist, then the statements of the officials are
futile and unacceptable. In the eyes of law, neither is the trust a
legal or juristic person, nor can the trust make a claim, nor is
Ratanlal Nahta, nor Mohanlal Pugalia entitled to make a claim.
Shri Jinchandra Suri was a yogi. Both the plaintiffs are not
ascetics, nor their associates, if any, are ascetics and the alleged
plaintiff trust has been formed by any ascetic or the owner of the
disputed immovable property, nor has it been stated that the trust
has been formed by the ascetic or the owner. By going any other
way, even if one or more strangers wish to or create one, such an
alleged trust cannot be legally formed, nor can any trust or public
trust come into existence validly under the law by doing so. In any
case, the alleged non-existent unauthorized trust or its trustees
have never been the owners of the disputed immovable property,
nor have they ever had possession of the disputed immovable
property, nor do they have any. Such statements are also not
acceptable. Neither full particulars of the alleged fabricated
custom have been given in para 3, nor could such a custom ever
exist, nor did it ever exist. Meaning, an arbitrary false statement
has been made for equality. Yati caste is different from Oswal
caste. Yati Sangh is different. What is Oswal Shri Sangh? Who
belongs to it? What is its legal status and nature? Arbitrary and
untrue laws made in relation to it without anything being written.
No one can understand the true and false statements. The only
similarity is that most of the Oswals are Jains and Yatigans are
also Jains, but the followers of the disputed Upasara's sub-group
were only a few idol-worshipping Oswals. Which is now
insignificant. But the Acharya of the Oswals of the disputed
Upasara of the Upgachhaa were also disciples and followers and
Yati and there were other Jains too. It is not written whether the
so-called Sangh is only of the Oswals of Bikaner or of the Oswals
of the whole India or the whole world. There have been many
Yatis, Oswals and other Jains outside Bikaner who were followers
of the Acharyas of the Upgachchh of the disputed Upasara. In
Bikaner too, most of the Oswals belong to such Jain sects which
are not idol worshippers at all, such as Terapanthi, Sthanakwasi
etc. Idol worshippers are also followers of many other Gachchhs.
In reality, the Gachchhs belonged to the Yatis and Yati Acharyas,
while the Oswals took teachings from different Acharyas. The
Gachchhs were not, and are not, of the Oswals. The so-called Shri
Sangh cannot have any connection with the Gachchhs of the Yatis
or with any particular Gachchh or Upgachchh. Shri Sangh has
been said to be an institution of all the Oswals and the sadhus
and nuns of Bikaner of all the idol-worshipping and anti-idol sects
and of the Oswals only. The Yatis or Yati Acharyas have never had
any relation with Shri Sangh. Oswals are not the only Jains.
Matheran, Yati Agrawal, Saravgon, etc. many other states of India
and Bikaner are also Jains. Then how can Oswal or Oswals'
alleged institution Shri Sangh be the owner of Yati Acharya's or
any particular Yati's property, nothing has been stated as to how
it was. Just by making an incomplete and arbitrary statement of a
fabricated custom, the ownership of the disputed property
cannot be of Oswals or the alleged Shri Sangh or the alleged trust
or its trustees. Since the lease is mentioned in the name of
Acharya, therefore a false statement of custom has been made
for ownership which is absolutely unacceptable. When the lease
is in the name of Acharya, then it is legally unthinkable that he is
the manager and not the owner; the alleged custom is against the
law. Without analyzing the legal form of Shri Sangh, the plaintiffs
are not entitled to fraudulently claim that the properties belong to
the alleged institution. Since the lease holder is the legal owner,
the restrictions stated in his rights are totally against the law and
unacceptable. In para no. 4, Shri Pujya is written as the presiding
officer in title of the disputed immovable property. By this
statement, the alleged Shri Pujya has been admitted as the legal
owner of the property. Then it is contradictory to state that he was
not the owner of the property but only the manager, besides,
Oswals of different caste cannot be the legal successors of the
ascetics, nor are they. Therefore, it is impossible, invalid and
unacceptable for the alleged Shri Pujya to be the successor in title
of the property of the alleged Shri Pujya, an institution with no
description of Shri Sangh of Oswals or the alleged trust or its
trustee. Nemisuri is still alive. How are his successors in title
applicants or the alleged trust described? Nothing is written here.
In para no. 5, in the lease, it is mentioned that Shri Jitshati has a
land in the south side of the property. It is also not mentioned. In
para no. 5 of the lease, it is mentioned that there is an Upasara of
Shri Jinchandra Suri in the boundary, in the south . Shri Jinchandra
Suri was a Yati Acharya. From this statement, the Upasara with
which an attempt is made to link the disputed property, cannot
have any relation with the ownership of the Upasara or the
disputed property, nor is it. This statement is also clearly
contradictory that in the lease of the disputed property, there is
no mention of Upasara in the original property of the lease, and
only because it is mentioned in the lease, the Upasara cannot be
built on the disputed property. In this Upasara, neither the
Acharya lived for several twelve years before the claim, nor there
were sermons, there is no temple in it, then there could not have
been any opportunity for the visitors, worshippers and preachers
to come to the disputed property, nor did they come. Even during
the time of Jinchandra Suri, Pratapchand's possession of the
entire disputed property as against him was in his knowledge.
Pratapchand was an initiated disciple and ascetic of Shri Jin
Siddh Suri ji. He was the saibayat manager of the temple in front
appointed by Siddh Suri ji. He was neither a priest nor a salaried
person. The disputed property had no connection with the said
temple. Nor is there any. Pratapchand being a licensee is
absolutely unacceptable. He was an adverse possessor of the
disputed property as against Shri Jinchandra Suri ji and Nemisuri.
All and every statement from the beginning to the end of No. 6 is
specifically rejected. Pratapchand lived in the disputed property.
He was in possession of the entire disputed property as the
owner. Pratapchand had become old and weak, widow Asha used
to take care of him and support him. Pratapchand was also a
servant. He was not the temple priest. This is a separate property
with independent title, completely separate from the temple and
the Upasara. No one is entitled to claim the property by citing the
temple. Pratapchand had made a Will of the disputed property in
favour of Asha. After Pratapchand's death, Asha became the sole
non-owner of the disputed property and she was actually in
possession of the entire property. And she remained so. Asha was
served by Ramdev, the defendant. Asha adopted Sanjay Kumar
from the family. Thus, he became Asha's adopted son. After
Asha's death, Sanjay Kumar, the defendant, became the sole
non-owner of the disputed property and became the exclusive
occupant of the property as the owner. There was no
accommodation in the Upasara during Pratapchand's time.
 Neither did it exist nor is it and the alleged trust or its self-made
so-called trustees were never the owners or occupants of the
disputed property. Nemisuri also made a claim against Asha in
respect of the disputed property, but the claim was dismissed.
Asha never worked for the alleged temple or the alleged trust or
its self-made so-called trustees. A weak widow of more than 85
years of age was not capable of working, Asha lived in the
disputed property as the owner and was the exclusive occupant.
During Asha's lifetime, the defendant Ramdev used to serve and
help her. As soon as Asha died, the defendant Sanjay Kumar, as
heir, became the owner and exclusive occupant of the disputed
property. In these circumstances it is not correct that the
defendant, being the owner and occupant, calls itself the trustee
of the disputed property, neither did the defendants ever declare
themselves to be the trustees of the disputed property nor did
they form any trust or authorized and valid trust for the disputed
property. As per the Rajasthan Court Fees and Suits Valuation
Act, in an attempt to avoid paying court fees and to make the
provisions of the Court Fees Act futile, it has been argued that the
defendants have declared themselves to be trustees. The
statement of possession of only two Safas is also a blatant lie. As
soon as Asha died, the defendant Sanjay Kumar became the sole
owner and exclusive occupant of the entire property. The alleged
pagothias had broken down during Asha's lifetime due to rain.
There was no provision. Sanjay Kumar, the defendant, in his
capacity as owner, is legally entitled for paving the drains and
getting electricity and water connection in the disputed property.
Nor does he have possession of the Upasara.

4. It is not accepted that the plaintiffs' institution is the property of a

public trust, nor did any public trust ever come into existence in
respect of this property. The valuation has been done wrongly and
less. The statement of mean profit of Rs. 200 per month also
shows that the value of the disputed property is very high.
Evaluating the claim and writing the valuation of the claim in the
petition is mandatory as per the provisions of the law of pleadings
of the civil court, but an arbitrary wrong value of the disputed
property has been written. Neither the valuation of the claim has
been written in the petition. Nor is it written how much and on
what basis the court fee has been paid. Section 27 of the
Rajasthan Court Fees and Suits Valuation Act is not applicable to
this claim. Section 24A of the said Act is applicable, accordingly
the court fee given is very less. As per the mention of section 27,
the value of the claim is Rs. 2800/-. Therefore, the petition has
been written as such. Accordingly, the claim is inadmissible in the
court. It is absolutely unacceptable that the claim is barred from
time to time. Defendant No. 3 is an absolutely unnecessary party
in the claim made in respect of personal property. The plaintiffs
are not legally entitled to make this claim or to demand or receive
any of the said or other penalties. The claim is tenable with costs.
In its special statements, it is accepted that there is no local
standard for the plaintiffs to file a claim against the defendant
Sanjay Kumar, who is the owner and occupant of the disputed
property. Sanjay Kumar, the defendant, is the actual owner and
occupant of the entire property. On the pretext of this false claim,
the plaintiffs are not entitled to deprive him of ownership,
enjoyment and use. Especially when they themselves have no
right, title or interest in the disputed property. In the above
circumstances, appointing a receiver is not at all just and
convenient, nor can it be. Neither are the plaintiffs entitled to get
permanent or temporary injunction. The self-proclaimed and
alleged trustees of such trust have no legal character or status in
respect of property. Nor do they have any legal right in respect of
property or in it. Therefore, legally the plaintiffs are not entitled to
claim declaration. The claim is not maintainable. The plaintiffs
have never had any kind of possession of the entire or joint
property in dispute, nor have they had any possession of it at the
time of filing the claim, before or after the filing of the claim. The
defendant Sanjay Kumar has been and is in actual possession
and ownership of the entire property, even before and after the
filing of the claim. Therefore, recovery of possession is legally
necessary for further relief. Due to not getting this further relief,
the claim for declaration is not legally maintainable, nor can the
degree of declaration be obtained. The Oswal caste people of the
so-called Shri Sangh are said to be a smart legal institution. Its
members are said to be Oswal women, men and sadhus and
sadhvis of all Jain sects. Judges take initiation and become
sadhus or sadhvis of various sects of Jainism. It is considered that
their civil death has occurred. Before becoming a Sadhu or
Sadhvi, if someone has any personal property is of any kind, then
after becoming sadhu or sadhvi, he gets divested from it. It is
legally impossible for such sadhus and sadhvis to be the owners
of the property of the organization of which the members are said
to be. Then it is written that those who are not even the owners of
their own property, are or become the owners of the property of
the ascetics. In the absence of legal character or legal status and
locus standi and because the plaintiffs have no legal right in the
disputed property, the claim is non-maintainable. But even if the
claim is otherwise maintainable, even then the claim is not legally
maintainable because the defendant Sanjay Kumar already had
possession of the entire disputed property before the filing of the
claim and in the absence of further relief to seek possession.
Because in such a situation, the right of the court to give a
declaratory decree is barred. Asha was a child widow. In 1984,
she was 87 years old. Being very old, she needed someone to
serve her. Ramdev, the defendant, used to visit Asha sometimes
to ask about her well-being without any reason. On Asha's
request, he often started taking care of her and serving her.
Banshilal, son of Poonamchand, caste Oswal Malu, had called
Asha a few years ago and promised to serve her. By luring her,
Banshilal got the entire disputed property written in his will in
favour of his son Askaran Malu, but Banshilal or Askaran did not
serve Asha, so Asha was disappointed and sad. Asha not only
wanted to be served, but also wanted that after her death, her last
rites should be performed according to religion and Pinddaan
should be performed so that her husband and her husband's
ancestors get spiritual benefit. She had received religious and
legal advice that her aforesaid wish cannot be fulfilled through a
Will. For this, she should adopt a boy who belongs to her
husband's gotra. When Ramdev started serving the respondent
Asha, one day Asha asked Ramdev in the course of conversation
what his gotra was. Ramdev said that we are Sutiran Brahmins, he
is Nagal and his gotra is Bhardwaj. Then Asha happily said that her
husband's gotra is also Bhardwaj. She wants to adopt his son
Sanjay. Ramdev said that he will answer after asking his wife.
Seeing Asha's condition and desire, Ramdev's wife completely
agreed to give her son Sanjay Kumar for adoption to Asha.
Ramdev told Asha that he and his wife are ready to let Sanjay
Kumar adopt their son to Asha. Then Asha on the day of Kaati Badi
13 Dhanteras of Samvat 2041, performed the common custom of
adopting Ajay Kumar as son in the disputed property, that is,
Ramdev, the defendant, with the consent of his wife, gave his son
Sanjay Kumar to Asha for adoption and said that I am giving my
son to you, and Asha, making Sanjay Kumar sit in her lap, told
Ramdev and his wife that she is adopting their son Sanjay Kumar
. Asha had ordered sweets as prasad, which she distributed. In
this way, from Kaati Badi 13 Dhanteras of Samvat 2041, Sanjay
Kumar was adopted by Asha. Later, in Baisakh Samvat 2042,
someone told Asha that the adoption cannot be done without
performing a homa. To remove the confusion, Asha performed the
adoption homa from a Brahmin on Vaishakh Sudi 3 Akha Teej of
Samvat 2042 and as a precaution, she again performed the
above-mentioned ritual of giving and taking adoption of Sanjay
Kumar. On knowing about the adoption, Banshilal Malu started
threatening Asha. Then, after taking legal advice, to avoid future
false disputes, Asha completed the adoption of Sanjay Kumar by
writing a document dated 26.07.85 as a testimony of the said
adoption and got it registered with the Sub Registrar Bikaner on
27.07.8. Since Asha believed that adoption cannot be considered
without a homa. Therefore, she told the lawyer the date of
adoption of Sanjay Kumar as Baisakh Suda 3 Samvat 2042,
therefore, the mention of the ritual of giving-taking in adoption on
the day of Dhanteras of Samvat 2041 could not be found in the
document. Now it is known that there is no need to conduct a
homa for adoption. Just by performing the ritual of giving-taking,
the adoption becomes valid. Therefore, the true situation is that
Sanjay Kumar, the defendant, became the adopted son of Asha
and her husband from Kaati Badi 13 of Samvat 2041. While
judicially recognized by the Rajasthan High Court, it was the
custom of Bikaner State regarding adoption that there was
absolutely no restriction on the age limit of the adopted son for
adoption. Sanjay Kumar's date of birth is 01.03.70. Therefore, first
of all, he had not completed fifteen years of age on Kati Badi 13 of
Samvat 2041, but as per the mention in the adoption document,
even if the ritual of giving-taking is considered to be on Besakh
Sudi 3 of Samvat 2042, then the validity of the opened adoption
will not be affected due to the said ritual. As an adopted son,
Sanjay Kumar had, and is, the sole heir and absolute owner of the
entire disputed property after the death of Asha. The lease of the
disputed property is said to be in the name of Shri Jinchandra Suri.
Pratapchand was an initiated disciple and ascetic of Jinchand
Siddh Suri. He did not get along with Shri Jinchandra Suri.
Therefore, Pratap Chand forcibly took possession of the entire
disputed property in his name forty years ago. Chandrasuri etc.
tried repeatedly to take possession of the disputed property from
 Pratapchand since then, but they could not take possession of
the disputed property from Pratapchand. Thus, in the knowledge
of Shri Jinchand Suri, Pratapchand's possession of the entire
disputed property continued against him in a public adjudication
continuity, in public city and in extension, claiming himself to be
the owner. And after twelve years of continuous possession as
above, the title of Shri Jinchand Suri on the basis of lease became
extinct and Pratapchand acquired the title, since then
Pratapchand became the full owner of the entire disputed
property. Pratapchand, through a registered will dated
24.11.1973, conveyed the entire disputed property in favour of
Asha. Thus, after the death of Pratapchand, Asha became the
sole owner and actual occupant of the entire disputed property.
Asha had adopted Sanjay Kumar. Therefore, as an adopted son,
Sanjay Kumar had indeed become, and is, the hereditary owner
and occupant of the entire disputed property.

5. The plaintiffs have submitted their reply (Jawaab-ul-jawaab) and

stated that the plaintiff public trust is a juristic person and is
competent to present a claim. Before the registration of the
plaintiff trust under the Rajasthan Public Trust Act, since time
immemorial, in the tradition of the revered Shri Pujyas of Shri
Sangh, Shri Jinchandsuri ji became Shri Pujya in whose name the
lease of the disputed property is made according to the custom
of Shri Sangh and on behalf of the plaintiff, Shri Pujya, the trustee
serving as manager, has been managing and protecting the
plaintiff's property. The defendants have falsely stated that during
the time of Jinchand Suri, Pratapchand had the possession of the
entire disputed property in comparison to him and they have also
falsely stated that Pratapchand was an initiated disciple and
ascetic of Shri Jinsiddh Suri and was a sevayat of the temple. The
true fact is that Pratapchand was a Suthar or a householder by
caste and was employed on salary to perform puja and cleaning
in the Upasara attached to the disputed immovable property, to
collect rent of the plaintiff's property and to give the account of
offerings in the temple to the plaintiff's Shri Pujya and resided in
the plaintiff's Mutanaza Bara as a licensee. The disputed property
was not Pratapchand's property. Neither Pratapchand made any
will in favour of Asha, nor did Pratapchand have the right to
execute any will in respect of the disputed property. The woman
named Asha did not become the sole owner of the disputed
property without any proof, nor did she have ownership or
possession, neither did Asha ever adopt Sanjay, nor did Asha
have the right to adopt, nor was Sanjay capable of being adopted.
The defendants have fabricated a false story of a Will to usurp the
plaintiff's property and the alleged adoption deed is improper,
illegal and invalid. The true fact is that Asha was the licensee of
the plaintiff and after Asha's death, the defendants entered the
disputed Bada by trespassing the house without authorization
and started vandalizing the Bada. The defendants have no right to
do so. Jinsomprabhu Suri alias Sobhagchand Shri Pujya had filed
a claim against Pratapchand which was decided by Munsif
Bikaner in claim number 51/57 Jinsomprabhu Suri vs
Poonamchand and Pratapchand dated on 30.04.60 as claim
number 51/57 Jinsomprabhu Suri vs Poonamchand and
Pratapchand, in which Pratapchand's status was declared as
salaried servant for cleaning, against which Pratapchand filed
appeal number 43/60 Pratapchand vs Soubhagchand, which was
dismissed by Civil Judge Bikaner on 09.02.62, Pratapchand filed
case number 23/57 Pratapchand vs Soubhagchand in the court of
District Judge, which was dismissed and after Pratapchand's
death Asha was appointed as a maid for cleaning by the plaintiff
organization, who lived as a licensee in Baare Mutanaja. When
Asha sought permission from the city council to construct this
Bada, Jinnemi Suri filed a suit against Asha, in which a permanent
injunction was issued against Asha. In such a situation,
 Pratapchand and Asha continued to reside in the Mutnaja Bada
only as licensees.It is true that Pratap Chand and Asha never had
possession as against the opposing plaintiff nor was the title of
Mutanaja Bada ever vested in Pratap Chand, Asha or the
defendants.

6. On the basis of the statements of both the parties and the

documents presented, the following issues were raised in the
case by the court on 24.08.2000: -

1) Are the plaintiffs entitled to obtain a declaratory decree in

respect of the immovable property described in para 2 of the
plaint against the defendants?
- plaintiffs
2) Whether the plaintiffs are entitled to evict the defendants from
the property shown in red in the map annexed to the plaint and
to take possession thereof?
- plaintiffs
3) Whether the plaintiffs are entitled to obtain a decree of
perpetual injunction against the defendants?
- plaintiffs

4) Are the plaintiffs entitled to receive from the defendants an

interim benefit of Rs. 200 per month till they get possession?
- plaintiffs

5) Are the plaintiffs entitled to have a receiver appointed over the

disputed property?
- plaintiffs
 6) Whether the suit is not maintainable as the trust has not been
registered as per rules?
- defendants
7) Have the plaintiffs not the right to present a plaint?
– defendants

8) Is the suit period barred?

– defendants

9) Whether the plaint has been served with insufficient court

fees?
– defendants

10) Whether respondent No. 3 has been impleaded as a wrong

party?
– defendants

11) Relief?

7. On behalf of the plaintiffs, in support of their plaint, affidavits

were produced in the chief examination of witnesses P.W. 01
Ratanlal, P.W. 02 Surajmal Pugalia, which were cross-examined
by the advocates of the defendants and the evidence of the said
witnesses was recorded and in documentary evidence Exhibit-1
map of the disputed site, Exhibit-2 decision of Munsif Court,
Bikaner Anwani Jinsomprabh Suri vs Poonamchand etc dated
30.04.1960 whose decree Exhibit-3, Exhibit-4 decision dated
12.09.1959 Anwan Pratapchand vs Sobhagchand alias
Somprabhu Suri, Exhibit-5 Judgement appeal dated 09.02.1962
Anwan Pratapchand vs Sobhagchand and others. Exhibit-6
 Certified copy of claim of Jannemi Suro vs. Ms. Asha and Exhibit
7 Certified copy of lease, Exhibit-8 Registration Certificate Shri
Jain Shwetambar Oswal Khartargachh Shri Sangh, Exhibit-7
Declaration dated 11.03.1957 by Jinsomprabhu Suri, Exhibit-10
Judgment dated 23.12.1980 Anwan Lal vs. Shri Nemisuri and
Roopchand etc. Exhibit-11 Trust Deed dated 15.04.85, Exhibit-12
Certified copy of the register of Devasthan Department received
under the right of Sukhna etc. have been presented and
displayed. Which will be mentioned at the appropriate place.
Keeping the evidence preserved on behalf of the plaintiff, no more
evidence is to be produced.

8. Affidavits were presented in the defence evidence on behalf of the

defendants, in the main examination of D.W. 01 Ramdev, D.W. 02
Flo Sanjay and D.W. 03 Gopal Das, which were cross examined by
the advocate plaintiffs and the evidence of the said witnesses
were recorded and in the documentary evidence, Exhibit-A1A
Kholanama by Asha Devi in favour of Sanjay Kumar, Exhibit-A2A
Cancelled Will of Asha Devi, Exhibit-A3 Voter List Golcha
Mohalla, Exhibit-A4 Application Claim Withdrawal dated 7.8.85
Banawan Jinnemisuri vs. Md. Asha and whose order dated 7.8.85
Exhibit-A5 has been presented and exhibited, which will be
mentioned at the appropriate place. The evidence of the
defendants was concluded when the defendants did not present
further evidence.

9. Thereafter, the plaintiffs advocate produced the affidavit of P.W.

01 Ratanlal Nahata in the main examination on 23.01.2018 in the
evidence of reversion, on which the reversion evidence of the said
witness was recorded on cross-examination by the defendant’s
advocates and in the documentary evidence, Exhibit-13 was the
constitution of the plaintiff trust, whose photocopy was produced
as Exhibit-13A and presented, which will be mentioned at the
 appropriate place. The plaintiffs expressed that they would not
present any more evidence, upon which the reversion evidence
was concluded.

10. Learned advocate plaintiff while reiterating the facts of the plaint
during the arguments has argued that the plaint is a public trust
which is registered by the Assistant Commissioner Devasthan
Department and the plaintiffs being the President and Treasurer
of the trust are competent authorities to bring the claim. It has
been a rule since long that the property has been purchased in
the name of Pujya Shri and the status of Shri Pujya has been that
of Mutawalli and Manager and there was no right to sell the
property of the association and neither does it have it at present.
From the time of Shri Jinchandra Suri Ji itself, Pratapchand and
Poonamchand were given a place to live in the disputed Bara as
licensees because both of them were salaried priests and were
appointed for cleaning the temple and the Upasara. Asha was
also salaried and she was also appointed for cleaning in the
temple and was given a place to stay in the Upasara. When Pratap
Chand had no ownership or possession right on the disputed
property, he had no right to make the so-called Will to Asha Devi
and similarly, there is no question of transfer of the so-called
property of Asha Devi to the defendant Sanjay through
Kholanama. The plaintiff has proved with all its oral and
documentary evidence that the said disputed property is the
property of a public trust and the plaintiffs, being its president,
treasurer and trustees, have the right to file a suit and get
possession and to get the intermediate benefit at the rate of Rs.
200/- per month in case of unauthorized possession and use the
Safas and whereas the defendants in their evidence have
admitted that Shri Jinchand Suri Ji himself is the owner, hence
there is no need to prove the accepted facts. Also argued that the
defendants did not cross examine P.W. 01 and 02 with respect to
the Issues of the documents and on the facts of the main
examination. It is also a well-established principle of law that if
cross examination is not done, then the facts of the main
examination are considered proved. The entire evidence of the
defendants has been centered on the adoption of Sanjay Kumar
by Asha Devi through Kholanama, whereas Kholanama is not the
subject of dispute and in this regard also there is a huge
contradiction in the evidence of D.W. 1, 2 and 3. Even D.W. 03
states that the age of Asha Devi was 34-35 years at the time of
adoption of defendant Sanjay, whereas D.W. 1 and 2 in their reply
and main examination state the age of Asha Devi to be 88 years,
which is contradictory in itself. In the end it is requested that the
plaintiffs have been successful in proving their claim with their
oral and documentary evidence, hence a decree of costs should
be passed against the claim defendants and the relief sought
should be provided. Following judicial references in support of
their arguments 1. 2016 (3) CJ(Civ.) (Raj.) 1360 Ram Gopal
Sharma Vs State of Rajasthan & Ors., 2- AIR 2012 SC 2010
A.Shanmugan Vs Ariya Kshatriya Rahakula Vamsathu Madalaya
Nandhavana Paripalanai Sangam, Represented by its President,
3- 2013(2) RLW 1735 (Raj.) Shri Pratapmal Dharewa Dadabari
Trust, Sujangarh & Ors. Vs Ganpat Das & Ors., 4- AIR 2011 MP 195
Ramrao Karuji Baghale Vs Nathu Son of Karuji Baghale & Ors., 5-
AIR 1979 AP 297 Sri Bramaramba Chennamalleswara Swami
Temple, Isukapalli Vs Thota Narasimharao and others., 6- AIR
2000 SC 1485 Roop Singh (Dead) through L. Rs. vs. Ram singh
(Dead) through L. Rs., 7-2008(3) CCC 758(P&H) Harish Chand &
Ors. vs. Rameshwar Dayal Mangla alias Ramesh Chand, 8-
2008(2) CCC 315(P&H) Bhupinder Singh & Ors. vs. M/S Malik
Singh Mehar Singh, 9- RLW 1997(2) Raj. 884 Mishri Bai vs.
Krishana Lal Chaddha were presented.
11. Learned counsel for the defendants argued that the plaintiffs
have accepted that Pratapchand and Poonamchand were priests
from 1950 to 1965 and have also accepted keeping Asha for
worship since 1965, whereas the trust has been accepted to be
formed in 1980. If the plaintiffs have declared themselves to be
the owners of the disputed property, then filing a declaratory suit
is ridiculous, whereas the plaintiffs should have filed a suit for
recovery of possession, but the plaintiffs not doing so proves that
the plaintiffs are not the owners of the said property, nor do they
have any right of any kind, whereas in paragraph no. 9 of the
plaint, they themselves have declared the property as a public
trust. It was also argued that in Exhibit-7, Pagachch has been
described from A to B, whereas the plaintiffs have said that the
trust belongs to Khartargachch, whereas the so-called Gachch of
the plaintiffs has nothing to do with the said lease of Pagachch.
Even the boundaries of the Leased property did not match with
the boundaries mentioned in the plaint. Exhibit-9 is considered as
the first trust deed whereas the said Exhibit-9 does not come
under the ambit of trust under the Indian Trust Act. Therefore, the
so-called trust of the plaintiffs is illegal and does not exist and has
nothing to do with the property. The plaintiffs have not made any
trust deed in 1980-81 and neither has any trust deed been
presented and exhibited. It is also argued that Banshilal formed
the trust although he did not have any right to form a trust. Even if
it is accepted that Banshilal formed the so-called trust, but the
copy of the document presented on the file, Exhibit-13A, is not
clear and readable, due to which no assumption of any kind can
be made. Pratapchand and Poonamchand and Asha Devi have
been told to be salaried priests and living in the Bara as licensee,
whereas no oral or documentary evidence has been presented
regarding their appointment and their salary, so even in the
absence of evidence, the facts of the plaintiffs have no
significance. The defendants have proved by their oral and
 documentary evidence that Pratap Chand had a right over the
disputed property as he was a initiated disciple and ascetic of Jin
Sidh Suri Ji and he had adverse possession over the property and
on this basis he was the owner and occupant of the entire
disputed property and Pratap Chand Ji had bequeathed the said
property to Asha Devi and after the death of Asha Devi, the said
property was received by her adopted son, defendant no. 2, due
to which the possession of the disputed property by the
defendants has been continuous and uninterrupted. In the end, it
is requested that the plaintiffs claim be dismissed with costs. In
support of their arguments, the following judicial precedents
have been cited: 1. AIR (30) 1943 Privy Council Page 7 Raghbir
Lala and others, Vs Mohammad Said and Others, 2- AIR 2009
Supreme Court Page 2966 T.K. Mohammed Abubucker (D) Thr. L.
Rs. and Ors. Vs P.S.M. Ahamed Abdul Khader and Ors., 3- AIR
2017 Supreme Court Page 1034 Executive Officer, Arulmigu
Chokkanatha Swamy Koil Trust, Virudhunagar Vs Chandran and
Ors. Others, 5- AIR 1958 Rajasthan Page 265 Mt. nanchi Vs Daulat
Ra, 61986(1) CCC 779, Jugal Kishore Vs Rambux & Ors., 7- AIR
1968 Rajasthan Page 314 Mangilal Vs Smt. Durga Devi & Other, 8-
AIR 1946 Lahore Page 31 Puj Maya Rishi & Ors. Vs L. Ram chand,
9- AIR 1952 Punjab Page 361 Panna Lal and another Vs Puj Harsh
Rish, 10- AIR 2013 Patna Page 106 Bihar State Board of Religious
Trust Vs Mahanth Ramgun Dasjee, Chela and other and
Rajasthan Court Fee and Valuation Act 1961, Schedule 65 of
Delimitation Act 1963, Sections 34 and 35 of the Specific Relief
Act, 1963, Sections 4 to 10 of the Indian Trust Act, 1882 were
introduced.

12. After considering the above arguments of both the parties, the
entire file including oral and documentary evidence available on
record was perused and the relevant law was studied and after
respectfully observing the judicial precedents presented and
 taking its guidance, the conclusion of the court on each of the
Issues raised are as follows: -
Issue No. -1 to 3
13. The burden of proving the above three issues has been put on the
plaintiffs by the court. To prevent reiteration of evidence and
keeping in view the convenience, the above three Issues are being
disposed of together. In this regard, P.W.01 Ratanlal Nahata has
got himself examined in the main examination and in the
duplicate evidence and while repeating the facts of the plaint and
the reply (Jawab-ul-jawab), stated that the plaintiff trust has an
immovable property situated in Mohalla Nahtan in Upasara Bada,
Bikaner city, whose lease number is Misil 296, dated Marjua
18.10.27, Tehsil Mal Mandi No. 162, signed by the Revenue
Commissioner, dated 23.04.29, Dargazi 404 11101, to the north
of which is the house Kishan Gopal Sevag and Kotdi of Danmal
Nahata, to the south is Upasara of Plaintiff, to the east is Bada
Upasara Khartargachh, to the west is the house Kishan Gopal
Sevag and road. Before the registration of the plaintiff trust, a
lease was made in the name of Shri Pujya Shri Jinchand Suri of
Khartargachh, Acharya of Shri Sangh of Oswal Samaj, the
predecessor in title of the plaintiff trust, because the customary
law of Oswal Shri Sangh has always been accepted in Oswal
Samaj for the past hundreds of years that the title deeds of
immovable properties, temples, worship places, fences of Oswal
Shri Sangh are made in the name of Shri Pujya of Oswal Shri
Sangh, in respect of which Shri Pujya has always been the
manager and Shri Pujya did not have, does not have and cannot
have the right to transfer the properties of Oswal Shri Sangh
acquired in the above manner to Shri Pujya in any condition or in
any way and this custom is the most prevalent law in Oswal Shri
Sangh Samaj. The predecessors in title of the plaintiff are Shri
Jinchandra Suri Ji, Jinudai Suri Ji, Shri Jinhem Suri Ji, Shri Jin Siddh
Suri Ji, Shri Jinchandra Suri Ji, Shri Jin Som Prabhu Suri Ji, Shri Jin
Nemi Suri Ji etc. became the Shri Pujya, who have been looking
after and managing the above-mentioned immovable property
and the Shri Pujya of plaintiff Oswal Shri Sangh. The above-
mentioned Bada is adjacent to the north of Acharya
Khartargachchh Upasara, which is recorded in the lease as the
Upasara of Shri Jinchandra Suri Ji, whose door is always open in
the disputed Bada and the building of the Upasara is also built
over this leased Bada and there is a way for the devotees, visitors,
worshippers and preachers to go to the Upasara and the temple
situated in it. During the cross-examination, no such question has
been asked to this witness which refutes his chief examination
nor creates any question mark or doubt on Exhibit-7 lease and
Exhibit-1 map of the disputed site. Even the defendant D.W.01
Ramdev himself has accepted in his affidavit in chief examination
that the lease of the disputed premises is made in the name of
Shri Jinchandra Suri, which was his personal property and D.W.02
Sanjay has also accepted in the affidavit in chief examination that
the disputed lease Exhibit-7 of Shri Jinchand Suri was made by
depositing the price and building a house on Munaja Baara.
P.W.02 Surajmal Pugalia, who is the trustee of the disputed
property, has also confirmed the statements of the plaintiff and
reiterated the facts of the plaint in his affidavit. It is proved that
during the cross-examination, no such question was asked to the
said witness which could contradict his evidence. Exhibit-7 Lease
was observed which was mentioned in the name of Shri Jinchand
Suri, which is accepted by the plaintiffs as well as the defendants.
Section 58 of the Indian Evidence Act clearly provides that the
facts which are accepted need not be proved. Therefore, since the
defendants have accepted Exhibit-7 lease and Exhibit-1 map of
the disputed site in their reply claim and evidence, both the said
Exhibit-7 lease and map of the disputed site Exhibit-1 are proved.
Now the question is whether the plaintiffs get the right by owning
and occupying the immovable property described in paragraph
no. 2 and are they entitled to get a declaratory decree in respect
of the said property or not? In this regard, Exhibit-9 is the
declaration, in which Shri Jin Somprabhu Suri has made a
declaration on 11.03.1957 that being a disciple of Jinchandsuri,
he declares that the movable and immovable property, temples,
Upasaras etc. built by Jain Oswal Shri Sangh are objects of public
right (Public Endowment) and whose lease etc. is made in his
name and to remove the confusion that may arise, I want to clarify
that all this property is not of anyone's personal but is of the public
(Public Endowment) of Oswal community of Bikaner and its real
owner is Oswal Shri Sangh Bikaner. Along with this, I also want to
clarify that I and my predecessors have been only Mutawalli or
administrator of all the above-mentioned properties like temple
Upasara etc. No one has had any right or ownership or ownership
in any way, nor does anyone have any right or ownership. This will
not be possible because this and all such properties have been
built for public works and collective welfare for the benefit of the
entire Jain community. The details of the properties are given in
Exhibit-9. P.W. 01 Ratanlal Nahta states that from the time of Shri
Jin Som Prabhu Suri, between 1950 to 1965, Poonamchand and
Pratapchand used to live in the said Bada as salaried priests,
whose status was to serve in the temple and the Upasars and to
Shri Pujya, hence, arrangement was made for them to stay in the
Bada as licensed. Whereas D.W. 01 Ramdev states that
Pratapchand was a initiated disciple and ascetic of Jinchand
Siddh Suri, who did not get along with Jinchandra Suri and
Pratapchand forcibly occupied this property, due to which
Pratapchand became the owner of the said property and due to
not being in possession for 12 years and due to repeated
demands, the title of Shri Jinchandra Suri expired and
Pratapchand became the owner and The property was taken over
by the plaintiffs. The defendants had included detailed facts in
their reply claim but in their affidavit in chief examination they
have stated different facts from those facts and have not proved
their statements with their evidence and it is noteworthy that no
objection has been raised by the plaintiffs in this regard. In this
regard it is necessary to mention that Pratap Chand and Poonan
Chand took possession of the said Bara and Upasara and
declared themselves to be the owners on the basis of possession
of the property, for which a claim was made by Shri Jinsom
Prabhusari against Pratap Chand and Poonam Chand, the
decision of which is Exhibit-2 dated 30.04.1960. In this matter the
Munsif Court, Bikaner has considered Pratapchand and
Poonamchand as salaried priests and has been decided that they
were appointed for the temple and cleaning etc. In the said claim
Exhibit-2, Poonamchand has accepted all the facts of the
plaintiff's claim on the basis of which Exhibit-3 decree was
issued. P.W. 1 Ratanlal stated during the evidence that earlier in
the time of Shri Pujya Shri Jin Somprabhusuri, between 1950 and
1965, Shri Poonamchand and Shri Pratapchand used to live as
salaried Pujari in this Bada, whose status was in the temple and
Upasara and due to doing Shri Pujya Seva Puja, arrangement was
made for them to stay in this Bada as licensee. During cross-
examination also the said witness stated that Poonamchand and
Pratapchand started living in the Bada between 1950 and 1965.
He does not know since when Pratapchand and Poonamchand
were living in the Bada. P.W.2 has also repeated the statements of
P.W.1 Ratanlal in para no. 7 of his affidavit that Pratapchand and
Poonamchand were salaried Pujaris in the said temple and
Upasara from the time of Shri Jinprabhusuri between 1950 to 1965
and they were given place to live in the Bada as licensees. During
cross-examination, no such question was asked to this witness
which casts doubt on his evidence. Thus it is clear that when
Pratapchand was appointed as Pujari and for cleaning in the said
disputed property, then how did he get rights and interest in the
disputed property. In this regard, the defendants have neither
produced any oral nor documentary evidence. D.W.1 Ramdev has
stated in his chief examination affidavit that Pratapchand was a
initiated disciple and ascetic of Jinchandsuri and also stated that
Jinchandsuri did not get along with Pratapchand and Pratapchand
forcibly took possession of this property. Jinchandsuri's title was
terminated as he did not have possession for 12 years and
Pratapchand did not give possession despite repeated requests
and Pratapchand openly called himself the owner, because he
did not take any action to take possession for 12 years. Whereas
in his main examination he himself has admitted that
Pratapchand did not return possession to Jinchandsuri despite
repeated requests. Even if it is assumed for once that
Pratapchand had taken possession of the said property, even then
he has not mentioned any specific date or time in his reply or main
examination from which he took possession and which has been
undisputed for 12 years. Even if it is accepted that Pratapchand
was a initiated disciple and a saint of Jinsiddhsuri, did
Pratapchand have the right to make a Will in favour of Asha Devi?
Even clear evidence has not been presented whether Asha Devi
was also a saint or not. During cross-examination this witness
stated that he has been living in this Bada with his family since
1968. There is no voter list of 1968. He has not seen
Poonamchand ji living there. He has seen Pratapchand ji living
there, but he does not know since which year Pratapchand ji has
been living there. It is wrong to say that Pratapchand ji was a
salaried employee employed for cleaning and worshipping the
temple. It is also wrong to say that being a salaried employee, he
was given two Safa to live in the Bada, Rather the entire Bada was
in his possession. He does not know whether Poonamchand ji
and Pratapji with the intention of usurping the land of the Bada,
he has started calling himself the owner instead of considering
Pujya Shri Jinsom Suri as the heir of Jinchand Suri. He does not
know if Jinsom Prabhu Suri Ji had filed any declaratory claim
against Poonamchand and Pratapchand in any Munsif Court. He
does not know if Exhibit-2, the above claim no. 51/1957, was
decided on 30.04.1960. He also does not know if Exhibit-3 is the
decree made with the said judgement. He does not know if
Pratapchand had objected against Exhibit-3, whose judgement
has been rejected by Exhibit-5 on 09.02.1962. He does not know
that Pratapchand had obtained a succession certificate in favour
of Somchand Suri Ji on 22.04.1952. He had applied to the District
and Sessions Judge to get it cancelled, and that application was
rejected by Exhibit-4. It is wrong to say that in the above decisions
Pratap Chand ji was considered a salaried employee. Therefore
he had no right to ownership over the disputed property. Thus the
said witness does not even know that Pratap Chand and Poonam
Chand have been considered salaried priests in the disputed
property by the court in its judgement Exhibit-2 and the appeal
made by Pratap Chand has also been rejected. In this regard, it
has been decided in AIR 2012 (SC) 2010 A.Shanmugan Vs Ariya
Kshatriya Rahakula Vamsathu Madalaya Nandhavana
Paripalanai Sangam, represented by its President that the
watchman, caretaker and servant appointed to take care of the
property does not acquire any interest in the property even on the
basis of long-term possession. Poonam Chand and Pratap Chand
were considered as the priests of the temple and the Upasara by
Exhibit-2 and Exhibit-3. Whose work was to clean the temple etc.,
therefore, even after the said long period of possession, Pratap
Chand does not get any right. The statement of D.W.1 that due to
his continuous possession for 12 years, the title of Jinchandsuri Ji
had ended and he had openly established himself as the owner.
In this regard, judicial precedent AIR 2000 SC 1485 Roop Singh
(Dead) through L.Rs. Vs Ram Singh (Dead) through L.Rs. has
been decided that even permission for long-term possession
does not establish adverse possession, unless irrefutable
concrete evidence is presented regarding adverse possession
and his possession is not denied, whereas Pratap Chand was
allowed to reside in the temple's Upasara and Bada as a licensee.
Thus, it is clear that Pratap Chand, who was the Pujari appointed
to clean and perform Puja in the disputed temple and Upasara
and was given a place to live in the Bada attached to the Upasara
as a license, despite living there for a long time, Pratap Chand
does not have any interest or ownership on the land of the said
disputed Upasara and Bada. In this regard, it is also necessary to
mention that the defendants have stated in their counter claim
that in this Upasara, for many twelve years before this claim,
neither the Acharya lived, nor were there any sermons, nor is
there any temple in it, then the visitors, worshippers and
preachers could not have an opportunity to visit the disputed
property of Upasara nor they visited. Even during Jinchandra Suri's
time, Pratapchand's adverse possession of the entire disputed
property was known to him. Pratapchand was an initiated disciple
and ascetic of Shri Jin Siddh Suri Ji. He was the sabaiyat manager
of the temple in front, appointed by Jin Siddh Suri Ji. He was
neither a priest nor a salaried employee. The disputed property
had no relation with the alleged temple, nor is it now. Pratapchand
being a licensee is absolutely unacceptable. He was the adverse
possessor of the disputed property as opposed to Shri Jinchandra
Suri Ji and Nemisuri. On one hand, the defendants in their reply
are denying the existence of the temple, while on the other hand
they are describing Pratapchand as a Sabaiyat appointed by Jin
Siddh Suri Ji in the temple, which is contradictory in itself. It is also
necessary to mention here that Pratapchand had filed a suit
against Sobhagchand alias Somprabhasuri in the District and
Sessions Court for cancellation of the succession certificate.
Which has been dismissed on 12.09.1959 as Exhibit-4 in which
the judgement dated 22.04.1952 was challenged by Pratapchand
by which Jinsomprabhasuri was declared the successor of the
 last Shri Pujya Shri Jinchandsuri Ji. Which was dismissed on
merits by the Hon'ble District and Sessions Court. Thus, merely
stating that Pratap Chand was an initiated disciple and ascetic of
Jin Siddhsuri and that he had acquired the said disputed property
on the basis of succession and adverse possession is not
acceptable, because no such oral documentary evidence has
been produced by the defendants, which makes it clear that
Pratap Chand was an initiated disciple and ascetic of Shri Jain
Siddhsuri Ji, whereas DW1 himself has stated in his chief
examination that Pratap Chand had taken possession of the
disputed property.

14. As far as the question is concerned whether the plaintiffs have got
the ownership right over the disputed property by registering the
said public trust or not. In this regard, P.W.1 and P.W.2 have stated
in their main examination that Plaintiff Trust is a public trust,
which is duly registered at number 272 in the register of public
trusts of Assistant Commissioner Devasthan Department,
Jodhpur and Bikaner division under Rajasthan Public Trust Act,
whose chairman is Ratanlal Nahta and plaintiff no. 2 Mohanlal is
the treasurer who is the competent and authorized person to file
the claim. During cross-examination, this witness states that
Oswal Shri Sangh Khatargachh was formed in 1980-81. The trust
deed was written. The trust deed was made in front of him. People
of the society, Ratan Lal Nahta, Banshilal Malu, Mohan Lal
Pugalia, Surajmal Pugalia, Rai Singh Khajanchi, Pannalal
Khajanchi, Champalal Shahbothra etc. made the trust deed. The
trust deed is kept in the office. The trust deed is in his possession.
It is true that the trust deed is not in the file. It is true that he has
not brought the trust deed today. He did not start the process of
forming the trust. Banshilal Malu did it. During the cross-
examination, this witness stated that he did not remember
whether it was written in the register before the trust meeting or
not. Because it was a matter of a long time ago. Today himself said
that the signatures of those who attended the meeting are
definitely there in the register. Election of trustees was done in his
presence. At that time Mohanlal, Banshilal Malu, Prakash Singh,
Panna Lal Khazanchi, Kamalchand and many others were
present. These people had gathered in the Upasara of
Acharyagachh in Nahata Mohalla. The disputed site is to the north
of the place where they gathered. He is the chairman of the trust
since 1981. In 1981, the trustees along with him were Mohanlal,
Panna Lal Khazanchi, Surajmal, Champalal Shah Bothra,
Prakashchand Sethiya. Thus, it has become clear through Exhibit-
9 that on the basis of the lease made in the name of Shri Jinchand
Suri Ji and on other properties, Shri Pujya's position has been only
and only that of a trustee or administrator and Shri Jinsomprabhu
Suri, through Exhibit-9, has considered the disputed property to
be the property of Shri Jain Oswal Sangh and declared it as the
property of (Public Endowment), for which Banshi Lal Malu had
filed a suit against Shri Nemi Suri and a person named
Roopchand in the Assistant Commissioner Devasthan
Department. The copy of the decision of which is Exhibit-10. In its
decision dated 23.12.80, the Devasthan Department, while
considering the said property as the property of a public trust on
merits and demerits, disposed of the case no. 1, and in para no. 7
of the said decision, mentioned that "The trust named Shri Jain
Shwetambar Oswal Shri Sangh Khatargachh Trust, Bikaner is
situated in Nahata Mohalla, Bikaner and it is a public trust in
existence", etc., and on page no. 8, Shri Jain Shwetambar Oswal
Shri Sangh Khatargachh, Bikaner was declared a public trust
under section 19 of the Rajasthan Public Trusts Act 1959 and
registered it. The applicant Banshilal Malu was instructed to
constitute the managing committee of the trust within one month
and submit the constitution of the trust, so that a certificate can
be issued in the name of the chairman. On the basis of the above,
Exhibit-13A, a copy of the constitution and the list of trustees was
given to the Assistant Commissioner Devasthan Department,
since Exhibit-13A available on the file is not clearly readable. But
in this regard, no objection has been raised by the lawyer of the
defendant while putting up the exhibits nor any cross-
examination has been made on Exhibit-13A, whereas in Exhibit-
13A, list of trustees has been given, which is readable to a large
extent and in the said list, signatures have been made in front of
the names of the trustees, in which signature of plaintiff Ratanlal
Nahta is there on each page from A to B and he has been
described as the chairman in the constitution, whereas the name
of plaintiff no. 2 Mohanlal has been mentioned as treasurer and
his signature is also made in front of his name. The evidence of
plaintiff PW-01 is also confirmed by Exhibit-10 of the decision
dated 23.12.80 in which Shri Banshilal Malu was given one
month's time to present the constitution of the trust and the list
of trustees and properties. PW-2 also stated during cross-
examination that the trust must have been registered in the
Trespass Department in about 1980-81. He has been a member
for the last 7-8 years. No such question was asked to this witness
during cross-examination, which could make it clear that Exhibit
11 Trust Deed was not written and the registration certificate
Exhibit-8 was issued fraudulently. On the basis of Exhibit-13A, the
Assistant Commissioner, Devasthan Department has issued all
the Exhibit-8 Registration Certificate dated 15.01.1981 as per
rules after completing the certified documents issued, on whose
register number 272, registration of Shri Jain Oswal Shri Sangh
Khatargach Trust Bikaner was done and a certificate was issued
in the name of President Shri Ratanlal Nahta, which has been
objected to by the defendant in his reply claim as being fake.
Whereas the defendant has not raised any objection in the
Devsthan Department regarding the said exhibit-8 and neither
has he made it clear with his oral and documentary evidence that
the said exhibit-8 has been issued wrongly and is doubtful.
Exhibit-11 is the trust deed, which is also a declaration made by
Shri Jinnaimisuri ji's disciple Shri Jinsomprabhu Suri on
15.04.1985, in which all the said movable and immovable
properties were handed over to Shri Jain Shwetambar Oswal
Khatargach Pranyas, Bikaner and its trustees have also been
declared, on which there are signatures of A to B Shri Jinnemi suri
ji and the details of the trust properties have also been given along
with the said Exhibit-11. Thus, it is clear that by Exhibit-9, the
declaration of Shri Jain Shwetambar: Oswal Khatargachchh
Pranyas was made by Shri Jinsomprabhu Suri declaring himself to
be the mutawalli and administrator. On the basis of the above,
Exhibit-11 Trust Deed was made and in the decision dated
23.12.1980 Exhibit-10, Assistant Commissioner, Devasthan
Department, Jodhpur and Bikaner Division, Jodhpur, gave legal
form to the said trust by declaring it as a public trust under
Section 19 of Rajasthan Public Act, 1959 and registered it on the
basis of which Exhibit-13 A copy of the enactment and list of
properties and trustees was presented to the Devasthan
Department, in which ward number 1 Ratan Lal Nahta was
elected as President and plaintiff number 2 Mohanlal was elected
as Treasurer and on the basis of all the said documents, Assistant
Commissioner, Devasthan Department registered Shri Jain
Shwetambar Oswal Shri Sangh Khatargachh Trust, Bikaner on
serial number 272 and issued Exhibit-8 certificate in the name of
President Shri Ratanlal Nahta. The above is also confirmed by
Exhibit-12, list of trustees and certified copy of properties
recorded in the register obtained from Devasthan Department,
Bikaner under RTI. In column number 6 of which, on the basis of
the declaration dated 11.03.1957, details of the lease made in the
name of Shri Jinsomprabhusuri Ji have been given and in column
number 2, Shri Jain Shwetambar Oswal Shri Sangh (Khatargachh
Trust, Bikaner Nahta Mohalla, Bikaner has been mentioned and in
column number 3, in places A to B, Shri Ratan Lal son of Shri
Banshilal Nahta is mentioned as President and in places C to D,
Mohanlal son of Sohan Lal Pugalia is mentioned as Treasurer.
Thus, it has become clear that the immovable property described
in paragraph number 2 of the plaint, which is one of the other
immovable properties of Shri Jain Shwetambar Oswal Khatarchh
Shri Sangh, the plaintiffs get the right of ownership and
possession on the basis of being trustees, whereas in no way
Pratapchand, who was a salaried employee appointed to do the
cleaning and worship of the temple, had any right over the said
disputed property. It is also worth mentioning here that It is
necessary that when Pratap Chand had any title or interest on the
said disputed property, then by what right and capacity did he
transfer the said disputed property to Asha Devi was, because it
is a well-established principle of law that no person can transfer
any property or its rights and interests to another person in excess
of his rights or interests. During cross-examination, D.W. 01
Ramdev has accepted that Kesrichand had made a Will in favour
of Pratapchand ji, which he has not produced on record. On one
hand, the said witness in the main examination states that
Pratapchand has been in possession of the disputed property for
12 years, while on the other hand he states that Kesrichand had
made a ill in favour of Pratapchand, which is contradictory in
itself. Also, the said will has not been produced in the court.
During cross-examination, the said witness has answered almost
all the questions on the basis of not knowing them and has also
stated that he does not know about Exhibit-2 to 6 and Exhibit-8 to
12. It is also necessary to mention here that the said witness in his
main examination has stated that the lease of the disputed
premises is in the name of Shri Jinchandrasuri and is his personal
property, whereas during the cross-examination he stated that he
does not know that the said lease is in the name of Shri
Jinsiddhsuri, disciple of Pujya Shri Jinchandrasuri of Jain
 Shwetambar Oswal Shri Sangh Khartargachch. Thus, the
evidence of the said witness is also not reliable and is doubtful. In
this regard, it has been clarified in 2016 (3)CJ (Civ.)(Raj.)1360
Ram Gopal Sharma Vs State of Rajasthan & Ors. that only the
right to reside and perform worship cannot create ownership of
the temple and it cannot be considered as personal property.
Thus, it is clear that where Pratap Chand had no right or interest
in the said disputed property, then the Will made by him in favour
of Asha Devi also has no effect, hence the said will is liable to be
declared illegal and void from the beginning. Since the said Will is
not the subject of dispute later, hence it is not appropriate to give
a decision in respect of it.

15. As far as the question is whether Asha Devi had the right to adopt
defendant no. 2 Sanjay Kumar (now deceased) or not, it is not an
issue whether Asha Devi had the right to adopt defendant no. 2
Sanjay Kumar or not because from the above analysis it is clear
that Pratap Chand was the wage earner priest of the disputed
property and he had no interest or right over the disputed
property. So, the Will made by him in favour of Asha Devi was
illegal and void from the very beginning. Thus, where Asha Devi
did not get any right or interest from Pratap Chand through the
said Will, then after the death of Asha Devi, her so-called adopted
son Sanjay, also cannot get any right over the property. Witness
D.W. 01 Ramdev, D.W. 02 Sanjay Kumar, D.W.03 Gopal Das have
given evidence regarding acquisition of the rights, while in
support of their evidence the defendants have produced Exhibit-
A1A Kholanama, Exhibit-A2 Cancel Deed Will of Asha Devi
against Askaran son of Banshilal, Exhibit-A3 Voter List, Exhibit-A4
Withdrawal Application for Court Munsif No. 1 Anwan Jinnaimi
Suri vs widow Asha and Exhibit A5 as the process of the said
withdrawal order dated 07.05.1985 has been exhibited as
documentary evidence. The said exhibit-A1A is the Kholanama in
which Asha Devi has adopted Sanjay Kumar, while exhibit-A2 is
the cancellation deed of the Will made by Asha Devi in favour of
Askaran and exhibit-A3 is the voter list in which the names of the
defendants Ramdev, Deva and Asha are mentioned. The above
documents do not prove that Asha Devi has acquired any right
over the said disputed property. In his main examination, witness
D.W. 01 has stated that Shri Pratapchandra had made a Will of this
house, which is his property, in the name of Asha widow of
Hukmaram caste Pareek on 24.11.73 by getting the Tahrir and
Takmil done and getting the Sankh done and getting it registered
in the Registrar's office and handed over the possession to Smt.
Asha Devi. It is important to mention here that the best witnesses
for the defendants were Pratapchand and Asha Devi, but
unfortunately, they have passed away, after which the best
evidence the defendants had was the so-called Will made by
Pratapchand in favour of Asha Devi, which has not been produced
and exhibited. Thus, the defendants could not even prove that
Asha Devi received the said disputed property from Pratapchand
through Will. Exhibit-A3 is the voter list of Golcha Mohalla of 1984,
which also does not help the defendants. As far as Exhibit-A4 and
Exhibit-A5 are concerned, Exhibit-A4 is definitely an application
to withdraw the case filed by Shri Jinnaimi Suri against Asha Devi,
Exhibit-6. In which the defendant has presented the intention to
take possession and withdraw the claim, on the basis of which the
claim has been withdrawn and the decision has been recorded on
Exhibit-A5 order dated 07.08.1985, but it cannot be assumed
from the said exhibit that Asha Devi has any right or interest on the
disputed property, due to which after her death all the said rights
and interests have been devolved on her adopted son defendant
No. 2 Sanjay Kumar. It is also necessary to mention that D.W. 03
Gopaldas Ranga, who is only a witness of exhibit-A1A
Kholanama, has stated in his entire evidence only and only that
Sanjay was adopted by Asha Devi, whereas Kholanama is not an
issue in the suit of possession, rather the plaintiffs have
ownership or possession right on the trust property or the
defendants have ownership and possession right through Will,
therefore, there does not seem to be any justification in
considering the evidence of the said witness and hence it is not
being considered. Similarly, DW 02 Sanjay Kumar has also stated
in his evidence that he was adopted by Asha Devi and given in
adoption by his birth parents, whereas during cross-examination
this witness states that he was born in 1971 and does not
remember the date. At the time of adoption, he was 12-13 years
old. He does not remember whether he or his parents signed the
adoption deed or not. Since it has been mentioned above that
adoption deed is not a contentious issue. Regarding the disputed
property this witness states during cross-examination that he
does not remember whether there should be any lease or sale
deed etc regarding the title of the disputed property was in the
name of Asha Devi. He does not know in which date, month and
year, Asha Devi came and started living in the disputed place.
Exhibit-7 If there is a lease of the disputed property, then he is not
aware, whereas in the affidavit of the chief examination, he
herself has admitted that Jinchandra Suri had taken the lease by
depositing the price. Thus, the testimony of the said witness is
also doubtful and is based only on the Kholanama. Even the said
witness does not seem to know any fact regarding the disputed
property. Even if it is assumed that Asha Devi was in possession
of the disputed property and after her death, the said disputed
property was received by her adopted son Sanjay, but during the
claim, the defendant no. 2 Sanjay Kumar has died and no legal
heir of the defendant no. 2 Sanjay Kumar has been taken on
record and neither is any legal heir of his present because the said
Sanjay Kumar was unmarried, therefore also the said property
has become ownerless. Since it is a well-established principle of
law that if a person dies intestate, then the property goes back to
the party from whom it was received, therefore the defendant
Ramdev also does not get any right or interest of any kind on the
said property because the defendants have stated that Sanjay
was adopted by Asha Devi and that the Kholanama was written
and registered, therefore Sanjay has no relationship with the
defendant Ramdev, who was his biological father. Since it has
become clear that Pratapchand, who was only a pujari in the
disputed property, was given a place to reside in the temple's
Upasara and Bada as a licensee, which has been described as his
alleged possession and he has made a Will to Asha Devi,
therefore it has become clear that the said disputed property did
not belong to Pratapchand and the said property is the property of
Shri Jain Shwetambar Oswal's Khatargachh Shri Sangh Trust.
Therefore, after the death of Sanjay Kumar, the property again
goes to its owner Shri Jain Shwetambar Oswal Khatargachh Shri
Sangh Trust and hence the said trust gets the ownership and
possession, therefore, from the said analysis it is clear that the
defendants have not acquired any right or interest of any kind on
the said disputed property. Therefore, the possession of the said
property by the defendants is illegal. Therefore, the plaintiffs have
been successful in proving with all their oral and documentary
evidence that the disputed property is the property of Shri Jain
Shwetambar Oswal Khatargachh Shri Sangh Sarvajanik Pranayas
and the plaintiffs being the President and Treasurer of the said
Trust have the right to obtain a declaratory decree in respect of
the disputed immovable property and are entitled to evict the
defendants from the property shown in red colour in the map
attached with the plaint and take possession and are also entitled
to obtain a decree of perpetual injunction against the defendants.
Therefore, the said issue 3 is decided in favour of plaintiffs against
the defendants.
Issue number-4: -
16. The burden of proving the said issue was also on the plaintiffs.
From the above analysis it is clear that the said disputed
immovable property which is described in paragraph No. 2 of the
plaint, the public trust is the immovable property of Shri Jain
Shwetambar Oswal Shri Sangh Khartargachh Trust and the
defendants have illegally and unauthorisedly occupied the said
disputed property and have illegally occupied two safa (rooms) of
the disputed Bada. In such a situation, the plaintiffs have been
successful in proving this. Therefore, the plaintiffs are entitled to
get Rs 200/- per month as interim benefit from the defendants till
the date of getting possession on the basis of the possession
made by the defendants on the said disputed property. Therefore,
issue number 4 is also decided in favour of the plaintiffs against
the defendants.
Issue Number-5: -
17. The burden of proving the above issue has been placed on the
plaintiffs by the court. No evidence has been given by the
plaintiffs in relation to this issue. Since no party has objected to
this issue, because during the debate both the parties have
argued that there was a dispute regarding this matter only before
the evidence and during the evidence, since there was no dispute
regarding the appointment of receiver, no evidence has been
presented, therefore it is said that there is no need for a decision
on this issue. The plaintiffs have not sought any kind of relief in
relation to this issue in the debate and neither has any application
been presented to remove this issue, but on the basis of the
consent of both the parties, it is not necessary to settle the said
issue as it is undisputed.
Issue Number-6 and 7: -
18. The burden of proving the above issues was on the defendants.
Since it has been established from the above analysis that in
pursuance of the action taken by Banshilal Malu on the basis of
Exhibit-9 declaration and Exhibit-10 decision dated 23.12.1980,
on the basis of Exhibit-13 statement, Assistant Commissioner
Devasthan Department, Jodhpur and Bikaner Division, Jodhpur
registered Shri Jain Shwetambar Oswal Khartargachh Shri Sangh
Trust Bikaner on 15.01.1981 in Register No. 272 and issued
registration certificate Exhibit-4 in the name of President Ratanlal
Nahta and the plaintiffs have been considered entitled to present
the plaint as they are the trustees of the said trust. Therefore, to
prevent repetition of evidence, it has been decided in detail in the
said issues No. 1 to 3 that the plaintiffs' trust is registered as per
rules and the plaintiffs have the right to present the plaint.
Therefore, both the above issues are decided in favour of Paintiff
against the defendants.
Issue Number-8 and 9: -
19. The burden of proving the above two issues has also been put on
the defendants by the court. No evidence has been given by the
defendants in this regard. This objection has been raised only in
their reply. Whereas in section 101 of the Indian Evidence Act, it
has been clearly provided that the person who wants the court to
give a decision on such facts which he makes known, therefore
the burden of proving the said facts also lies on the person. The
facts are not proved merely by raising an objection unless any
evidence is given in respect of it. It is also necessary to mention
here that during the debate, the argument of the advocates of the
defendants regarding issue number 9 has been that the plaintiffs
have not assessed the suit under section 24A of the State Court
Fees Act and have presented it on insufficient court fees, whereas
 the argument of the advocates of the plaintiffs has been that the
suit has been assessed under section 27 of the State Court Fees
Act and has been presented on proper fees. In this regard, both
the sections mentioned above have been observed, from which it
appears that in cases of possession or joint possession of trust or
trust property or declaratory decree, the fee can be calculated
only under section 27 of the State Court Fees and Suit Valuation
Act, in which there is a provision for assessment of the suit at 1/5
of the market value of the property, subject to a maximum fee of
two hundred rupees or at Rs 1000 where the property does not
have a market value. The plaint in hand has also been presented
on a court fee of Rs. 200/-, hence the valuation of the plaint by the
plaintiffs is correct, hence the provisions of section 24A do not
apply to the suit. However, the defendants have not given any
evidence in relation to this issue, hence in the absence of
evidence, both the above issues are decided against the
defendants.
Issue number-10: -
20. The burden of proving the said issue has also been put on the
defendants by the court. In this regard also, no evidence has been
presented by the defendants nor any kind of argument has been
presented during the debate. Section 102 of the Indian Evidence
Act clearly provides that in any suit or proceeding, the burden of
proof is on the person who will fail, if no evidence is given on either
side. Since the burden of proving the said issue was also on the
defendants, but no evidence has been presented by them.
Therefore, in the absence of evidence, the said issue is also
decided in favour of the plaintiffs against the Defendants.
Issue No.11"Relief: -
21. Since the plaintiffs have been successful in proving all the above
issues in their favour and against the defendants, therefore, in the
opinion of the court, as the plaintiffs are justified in obtaining
clauses A, C, D of the relief mentioned in paragraph number 2 of
the plaint in respect of the property, and clause B of not obtaining
the appointment of a receiver appears to be justified, hence, the
suit of the plaintiffs against the defendants Ramdev and Sanjay
Kumar (now deceased) is accepted and it appears justified to
reject it due to lack of relief against defendant number 3.

-: Order :-

Therefore, suit of the plaintiffs Shri Jain Shwetambar Oswal Shri

Sangh Khartargachch Trust Bikaner through Chairman/Trustee Shri
Ratanlal Nahta and Mohanlal Trustee/Treasurer resident of Nahato
ka Mohalla, Bikaner against the defendants Ramdev and Sanjay
Kumar (now deceased) is declaratory and for possession in respect of
two Safe (Rooms) of Wake Bada with Upasara Shri Jain Shwetambar
Oswal Shri Sangh Khatargachh Trust, Mohalla Nahtan, Bikaner and to
obtain Permanent Injunction against the defendants.Under Order 7
Rule 1 CPC is accepted decreed and declared that the disputed
property including Bara with Upasara is the property of Shri Jain
Swetambar Oswal Shri Sangh Khartargachh Trust, Bikaner and the
defendants are ordered to vacate the possession of both the disputed
Safas(rooms) shown in red colour in the map within one month from
today and hand it over to the plaintiffs and shall provide the plaintiffs
an intermediate benefit of Rs. 200/- per month from 27.12.1988 till the
date of getting the possession of the disputed property. Also, the
defendants are ordered through permanent injunction that they will not
make any demolition, alteration or any other action in the disputed
immovable property. They will not transfer, repair or construct the
building, will not take electricity and water connection, will not stop the
trustees of the plaintiff institution, devotees, visitors and other general
public from coming to the Upasara and will not do any such act or
omission which harms the interests of the plaintiff public trust. Also, no
relief is given to the plaintiffs against defendant No. 3 Devsthan
Department. The parties will bear their own litigation costs.
Accordingly, the decree form should be prepared as per rules.

Sd/-
Vijay Kumar 18.05.2018

* The decision was written, signed and announced in the open court
today on 18.05.2018.

Sd/-
Vijay Kumar