SMT. RAJ RANI SHARMA Vs. SH. SUMER SEGAL

JUDGEMENT

(1.) This Regular First Appeal under Section 96 of the Code of Civil Procedure, 1908 (CPC) is filed by the defendants in the suit impugning the judgment of the trial court dated 18.3.2017 whereby the suit filed by the respondents/plaintiffs have been decreed against the appellants/defendants for possession of the property no.322, situated in Kucha Ghasi Ram, Chandni Chowk, Delhi as shown in red colour in the site plan. A decree of mesne profits at Rs.3,000/- per month along with interest at 9% per annum has also been passed in terms of the impugned judgment in favour of the respondents/plaintiffs and against the appellants/defendants. The subject suit has been decreed for possession against the appellants/defendants as they were only licencees of the suit property, being the legal heirs of the priest of the temple, and who in spite of notice had failed to vacate the suit property.

(2.) The facts of the case are that there is a temple in the name and style of Visheshwar Mahadev Temple on the ground floor of residential portion of property no.322, situated in Kucha Ghasi Ram, Chandni Chowk, Delhi. A portion of ground floor comprising of two rooms, stores, verandah, kitchen and toilet were attached to the temple and were meant for sewadar of the temple for conducting of sewa/pooja in the temple. The temple was originally created by a private trust in terms of the testament dated 29.8.1929 of one Sh. Dewan Rai Bahadur Bisheshur Nath and the temple was a private family temple meant for the family members of Sh. Dewan Rai Bahadur Bisheshur Nath. As per his Will Sh. Dewan Rai Bahadur Bisheshur Nath appointed his second son Sh. Rai Bahadur Dr. Baij Nath as executor of the Will dated 29.8.1929. Sh. Rai Bahadur Dr. Baij Nath appointed Sh. Harish Chander Shastri as sewadar of the temple. The administration and management of the trust along with the temple was handed over by Sh. Rai Bahadur Dr. Baij Nath to his son Sh. Prem Nath Segal by a trust deed dated 13.1.1950 also giving the power to appoint another male member from the descendants of Sh. Rai Bahadur Dr. Baij Nath as trustee. Sh. Prem Nath Segal after death of Sh. Rai Bahadur Dr. Baij Nath in the year 1950 nominated his eldest son as a successor to the office of the trust by means of a registered testament dated 24.5.1951. After the death of Sh. Prem Nath Segal, his son Sh. Prakash Nath Segal assumed the charge of the trust and temple. Thereafter on 26.3.1985, a trust deed was executed between Sh. Prakash Nath Segal and Sh. Sumer Segal appointing the respondent no.1/plaintiff no.1/Sh. Sumer Segal as a sole trustee. Sh. Harish Chander Shastri who was serving as a sewadar of the temple expired on 2.2.1984 and his son Sh. Vinay Chand Sharma approached the respondents/trust for his appointment as sewadar of the temple vide his letter dated 30.3.1984 and he was so appointed vide letter dated 31.3.1984. On account of his being appointed as a sewadar he was given a right to reside in the suit property besides being provided free electricity and water. Sh. Vinay Chand Sharma continued as sewadar till his death on 13.10.2010. On the death of Sh. Vinay Chand Sharma, it is pleaded that right of the appellants/defendants to occupy the suit premises automatically stood terminated. The respondents/plaintiffs through a communication dated 14.1.2011 asked the appellants/defendants to vacate the suit property. A reminder was also given on 7.6.2013. Thereafter, the subject suit was filed.

(3.) The appellants/defendants pleaded that there was no right in the respondent no.1 to act as a trustee. The suit was stated to be an abuse of the process of law. It was pleaded by the appellants/defendants that testament dated 29.8.1929 executed by Sh. Dewan Bahadur Bisheshur Nath was concealed from the court. It was further pleaded that the temple was not a private family temple. It was further pleaded that the appellants/defendants and their predecessors have been occupying the suit premises since the year 1949, and therefore, they were in settled uninterrupted and continuous possession and therefore could not be evicted. The trust deed dated 26.3.1985 was pleaded to be illegal. The suit was prayed to be dismissed.