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Harihar Prasad v. Siri Gurugranth Saheb .
Case Summary — Opinion of Chatterji, J. (with concurrence of James, J.)
Factual and Procedural Background
The plaintiff-respondent (the Gurugranbh Sahib) claimed that in 1897 Munshi Ganga Prashad, at the time of installing images in a temple he had constructed, made an oral dedication (endowment) of his 4 dams 8 kauris odd share in Mauza Dhenawan in favour of the plaintiff. On 22 August 1914 Ganga Prashad executed and registered a formal deed of wakf reciting and confirming the earlier oral dedication. The defendants, tracing title through purchasers at a sale in execution of a money decree against Ganga Prashad, began to interfere with the plaintiff's possession in January 1926.
The plaintiff sought a declaration of title based on the endowment and, alternatively, recovery of possession and a permanent injunction restraining interference. The Munsif dismissed the suit; the Subordinate Judge reversed and decreed the suit. The defendants appealed to the High Court.
Legal Issues Presented
- Whether the recital by Ganga Prashad in the registered deed of wakf (a statement of a deceased person) was admissible in evidence against the appellants under Section 32 of the Evidence Act, given that the recital was made shortly after the property had been attached.
- Whether a gift/dedication made after attachment of property is void as against attaching decree-holders under Section 64 of the Civil Procedure Code, and whether auction-purchasers acquire the property free from such post-attachment alienations.
- Whether an oral endowment made in 1897 by a co-parcenary owner (when Ganga Prashad held an undivided moiety) could validly transfer a specific, existing immovable share or was invalid because it was not of a certain existing immovable interest and beyond the donor's competence.
- Whether the Transfer of Property Act, particularly Section 123 read with Section 5, requires a registered instrument for a gift of immovable property to a deity or for religious purposes, thus invalidating an oral dedication.
- Whether the essential requirements for a valid dedication under Hindu law — real sankalp (intention) and samarpan (delivery/acceptance) as discussed in precedent — were established on the facts (i.e., whether there was complete divestment and acceptance).
- Whether the evidence of possession, local features (proximity of plots to the temple/dharamshala), and documentary entries (Record-of-Rights, mutations) supported the plaintiff's claim to the whole milkiyat share or only to specific plots adjacent to the temple.
Arguments of the Parties
Appellants' Arguments
- The recital in the deed of wakf is inadmissible against the appellants under Section 32 of the Evidence Act because it was made about a week after the property was attached; statements made after attachment cannot bind attaching decree-holders.
- The gift/dedication was made after attachment (14 August 1914) and therefore void as against attaching decree-holders under Section 64 of the CPC; the decree-holders became auction-purchasers and acquired the right, title and interest free from alienations effected after attachment.
- Dinendronath Sannial v. Ramhumar Ghose was relied on to show auction-purchasers are not bound by the donor's statements and that the recital in the wakf deed cannot bind purchasers.
- The 1897 oral endowment, if made while Ganga Prashad was co-parcener with an undivided moiety (with cousin Jwala Prashad), was invalid because it was not of a specific existing immovable property and beyond his competence; reliance placed on Kalu v. Barsu.
- The Transfer of Property Act (Section 123 read with Section 5) requires registration for gifts of immovable property; reliance on Mannu Lal v. Radha Kishenji and Hira Mani Singh v. Anmol Singh to argue oral sankalp is insufficient to pass title.
- There was insufficient evidence of complete divestment: no mutation in collector's register; no accounts proving rents/profits applied to plaintiff; Ganga Prashad's conduct in execution proceedings of 1914 negated any oral dedication; no proof of acceptance or transfer of possession. Thus the Subordinate Judge drew wrong inferences from the oral testimonies.
- Map and survey evidence argued to show plot 538 and part of plot 534 were far removed from the temple and could not reasonably be considered as phulwari (orchard) in connection with the temple; local features contradicted the respondent's account.
Respondent's Arguments (Plaintiff)
- The Subordinate Judge correctly admitted the deed recital and found an oral dedication in 1897 followed by possession and setting apart of four plots (including the temple plot and dharamshala plot). The plaintiff claimed the milkiyat share and led evidence accordingly.
- Even if the court were to disregard the title to the full milkiyat share, the plaintiff alternatively claimed that the specific two suit plots (used as phulwari/orchard) and the temple/dharamshala plots had been set apart and should be decreed in his favour.
- Local features and proximity of plots 536 (temple), 535 (dharamshala) and the suit plots (534 and 538) were submitted as corroborative of the plaintiff's possession and the dedication of those plots for the temple's use; this was argued to be sufficient independent proof of the dedication.
- Where the lower court's decree turned on possession and local situation, the respondent urged acceptance of the oral evidence about possession and of the map-based circumstances to support title to the specific plots contiguous to the temple.
Table of Precedents Cited
| Precedent | Rule or Principle Cited For | Application by the Court |
|---|---|---|
| Dinendronath Sannial v. Ramhumar Ghose | Principle that auction-purchasers (decree-holders who become purchasers) acquire rights free from alienations effected after attachment and are not bound by statements of the judgment-debtor. | Relied on by appellants to argue that the wakf recital could not bind the auction-purchasers or defendants; the Court acknowledged this contention when considering the effect of attachment and subsequent purchase. |
| Kalu v. Barsu | Held that a gift not made from necessity or for obligatory pious duties may be invalid and may not operate even as regards the donor's share. | Invoked by appellants to challenge validity of an oral gift made by a co-parcener; the Court treated the authority as supporting the contention that such gifts may be invalid depending on facts. |
| Mannu Lal v. Radha Kishenji | Support for the submission that gifts of immovable property require registration under Section 123 (Transfer of Property Act). | Relied on by appellants to argue registration was mandatory; the Court reviewed this and other authorities before addressing whether gifts to deity fall within the same requirement. |
| Hira Mani Singh v. Anmol Singh | Decision holding Section 123 mandatory and that certain oral gifts (sankalp at nuptials) cannot operate as valid gifts of immovable property. | Presented by appellants to support the need for a registered instrument; Court considered this in relation to authorities holding that gifts to deity may be treated differently. |
| Ramalinga Chetti v. Sivachidambara Chetty | Holds that a dedication of a small portion of joint family land to an idol need not be in writing and can be valid and binding on family members as a pious gift. | Relied on by the Subordinate Judge and discussed by the Court as part of Calcutta High Court authorities that allow oral dedications in certain Hindu-law contexts; Court weighed this against other principles. |
| Pallaya v. Ramavadhanulu | Earlier decision followed by Ramalinga Chetti on the law of dedication to deity. | Cited as antecedent authority underpinning Ramalinga Chetti; considered in the cluster of Calcutta authorities favouring the validity of oral deductions in appropriate circumstances. |
| Tadibulli Tammireddi v. Tadibulli Gangireddi | Later decision following Ramalinga Chetti on oral dedication. | Noted by the Court as one of the authorities supporting a line that oral dedications to deity may operate without a registered instrument. |
| Narasimhaswami v. Venhatalingam | Full Bench decision: a gift to God is not a gift to a living person under the Transfer of Property Act; S.123 and S.5 do not apply to such gifts; juristic-person fiction limited. | Used to show that S.123 read with S.5 may not apply to gifts to deity; Court considered this view as part of the body of Calcutta/JC authorities relevant to oral dedications. |
| Bhupati v. Ram Lal | Observations (approved in Ramalinga Chetti) that Hindu texts and authorities treat gifts to gods as dedications, not gifts requiring acceptance by a living person. | Cited in support of the proposition that dedications to deity operate differently from ordinary gifts; Court referenced this material when surveying authorities. |
| Muddun Lal v. Komul Bibi | Calcutta High Court view that documentary evidence is not an absolute prerequisite for proving a specific endowment; absence of a document does not necessarily defeat the claim. | Referred to by the Court as early Calcutta authority supporting the proposition that oral dedications may be proved without documentary evidence in some cases. |
| Rambrahma Chatterji v. Kedarnath Banerji | Execution of a document is not essential for a valid dedication; dedication may be inferred from application of proceeds and family conduct. | Considered by the Court among the Calcutta authorities that allow oral dedications to establish title in appropriate factual matrices. |
| Manohar v. Lahhmiram | Authority followed by Rambrahma Chatterji on dedications and inference of dedication from conduct. | Noted as part of the chain of Calcutta authorities relied upon to show that documentary form is not always indispensable. |
| Abhiram v. Shyama Charan | Another authority followed in the line permitting inferences of dedication from conduct. | Referred to as supporting the trend in local authorities that oral dedications can be sufficient in certain contexts. |
| Bulli Gangi Reddi v. Bulli Tammireddi | Judicial Committee: dedication of family property for religious charity may be valid without written instrument; family act valid if assented to even informally; karta may appropriate. | Cited by the Court as a Judicial Committee authority supporting the proposition that oral dedication of landed property can be valid under Hindu law. |
| Deosaran Bharthi v. Deoki Bharthi | Identifies essential elements for valid dedication (sankalp and samarpan) and requirement of something indicating acceptance by the donee (acceptance to be inferred from circumstances). | Adopted by the Court as the essential test: whether there was real sankalp and samarpan. The Court used this test centrally in evaluating the evidence and ultimately in rejecting the claim to the whole milkiyat share while accepting possession of a limited area. |
Court's Reasoning and Analysis
The Court undertook a focused analysis addressing (a) admissibility and effect of the wakf deed recital in evidence, (b) the legal effect of attachment and subsequent auction-purchase, (c) the formal requisites for gifts of immovable property under the Transfer of Property Act, and (d) the factual sufficiency of evidence to establish the essential elements of a valid Hindu dedication (sankalp and samarpan) and acceptance/possession.
1. Admissibility and attachment: The appellants argued the deed recital was made about a week after attachment (14 August 1914) and hence could not bind attaching decree-holders; purchasers at the execution sale took free from post-attachment alienations. The Court considered this contention (with reliance placed by appellants on Dinendronath Sannial) when assessing whether the wakf recital could bind the defendants or auction-purchasers.
2. Competence and certainty of gift: The Court reviewed the objection that the 1897 oral endowment, made while Ganga Prashad was in joint estate with Jwala Prashad, was not a gift of a certain existing immovable property and may have been beyond his competence. The appellants relied on Kalu v. Barsu to argue invalidity in such circumstances. The Court noted that the Subordinate Judge had regarded partition by private arrangement in 1911 and later sole possession of certain plots as mitigating uncertainty, but the High Court examined the question afresh on the evidence.
3. Registration requirement and gifts to deity: The Court examined the force of the Transfer of Property Act (Sections 123 and 5) and authority (Mannu Lal; Hira Mani Singh) that gifts of immovable property must be registered. However, the Court also surveyed an established line of Calcutta High Court and Judicial Committee authorities (Ramalinga Chetti, Muddun Lal, Rambrahma Chatterji, Bulli Gangi Reddi, Narasimhaswami, etc.) which held that dedications to deity or religious charities may validly be made orally and may not fall within the ordinary operation of Section 123. The Court therefore framed the central legal test as whether there was real sankalp and samarpan — an intention to divest and some manifestation of acceptance — per Deosaran Bharthi.
4. Application of the sankalp/samarpan test to the facts: Applying the Deosaran test, the Court scrutinised the factual matrix. Several facts weighed against finding a complete divestment of ownership in respect of the whole milkiyat share:
- No mutation to the plaintiff's name in the Collectorate register at the time; accounts allegedly kept showing receipts and application of rents/profits to plaintiff were not produced.
- Ganga Prashad's conduct in the execution proceedings of 1914 — where he asserted his private rights and did not claim to be acting as manager of the plaintiff under Order 21 Rule 58 — suggested he did not treat himself as having divested ownership.
- No claim by Ganga Prashad as manager to resist execution; absence of proof of transference of possession or acceptance by the plaintiff.
- The timing of sale (January 1915), the pendency of an application to set aside the sale (Order 21 Rule 90), the dates of draft and final publication of the Record-of-Rights, and the dates when purchasers obtained delivery and registration were examined; the Court regarded these chronological and documentary facts as undermining the asserted continuous and exclusive possession by the plaintiff of the entire milkiyat share.
5. Local features and possession with respect to specific plots: The Court separately evaluated the plaintiff's claim to specific plots said to have been set apart for the temple (plots 536 — temple; 535 — dharamshala; and two suit plots 534 and 538). The respondent relied on proximity and map-based situation as evidence. The Court analysed the map and found plot 538 remote and separated by intervening plots, undermining the claim as to that plot. With respect to plot 534, the Court distinguished the portion immediately north/east/south of the temple (adjacent to plot 536) from the larger western part of plot 534: it accepted that the small contiguous portion, together with plots 535 and 536, could reasonably be regarded as set apart and supported by evidence of possession. The remainder of plot 534 and plot 538 were found not proved as part of the dedication.
6. Conclusion of analysis: On balance the Court concluded that the plaintiff had failed to prove title to the whole milkiyat share on the basis of the alleged 1897 oral dedication (the dedication to the milkiyat share was invalid on the proved facts). However, the Court accepted the plaintiff's title and possession to the limited area contiguous to the temple (the small portion of plot 534 immediately north/east/south of temple plot 536, and the temple and dharamshala plots), while rejecting claims to plot 538 and the remainder of plot 534.
Holding and Implications
Holding:
The appeal is ALLOWED. The decree of the Subordinate Judge is set aside except insofar as it decreed the plaintiff's title and possession in respect of the limited area immediately adjacent to the temple (the small portion of R.S. plot 534 contiguous to temple plot 536, and the plots containing the temple and the dharamshala). The plaintiff's claim to plot 538 and the western portion of plot 534 is dismissed. Costs are awarded to the appellants throughout in all Courts.
Implications:
- Direct effect on the parties: The plaintiff recovers title and possession only to a limited part of the lands claimed (the plots adjacent to the temple as specified). The defendants succeed in respect of the larger portion of the milkiyat share they contested, including plot 538 and the western portion of plot 534.
- No sweeping new legal precedent was laid down by the Court. The Court applied established principles (notably the Deosaran test of sankalp and samarpan and the line of authorities on oral dedications) to the facts and reached a fact-specific result, limiting the operation of an asserted oral dedication where documentary and other evidence did not establish complete divestment and acceptance.
Note: This summary is confined to the matters expressly stated in the opinion. It does not introduce facts or conclusions beyond those recorded by the Court in the provided text.
Chatterji, J.:— The case of the plaintiff-respondent, the Gurugranbh Sahib, is that in 1897, when it was installed, together with some images of Hindu deities, in a temple constructed at great cost, the founder Munshi Ganga Prashad made an oral dedication of his 4 dams 8 kauris odd share in Mauza Dhenawan in favour of the plaintiff. Subsequently, on 22nd August 1914, Ganga Prasad executed and registered a formal deed of wakf reciting and confirming the oral dedication. The defendants, on the strength of their having eventually acquired the interest of Ganga Prasad in the said share at a sale in execution of a money decree, began to interfere with the plaintiff's possession of the dedicated land in January 1926. The plaintiff therefore prayed for a declaration of title based on the endowment, and for confirmation, or in the alternative for recovery of possession of the suit plots and for a permanent injunction restraining the defendants from interfering with his possession.
2. The suit was dismissed by the Munsif who heard it, but his decision was reversed on appeal by the Subordinate Judge who decreed the suit. The defendants now appeal from the said decision. The learned advocate for the appellants argues that the Subordinate Judge has erred in admitting in evidence the statement of Ganga Prasad contained in the deed of wakf as being the statement of a dead man and made against his interest under the provisions of Section 32 of the Evidence Act. It was pointed out that this statement was made about a week after the proprietary share in question had been attached on 14th August 1914. The gift was made after the attachment; it would be void under Section 64 of the CPC so far as the attaching decree-holders are concerned. Eventually the decree-holders themselves became the purchasers, and as such, notwithstanding the fact that they merely acquired the right, tibia and interest of their judgment-debtor Ganga Prashad, they acquired free from all alienations and encumbrances effected by him after the attachment. They were not the representatives of Ganga Prashad or parsons deriving title through him and they would not be bound by any statements made by him. Reliance was placed on Dinendronath Sannial v. Ramhumar Ghose (1), a decision of their Lordships of the Judicial Committee. It is clear that the recital by Ganga Prashad in the deed of wakf could not be binding either on the auction-purchasers or on the defendants, who in April 1923 had purchased the rights of the auction-purchasars.
3. The learned advocate for the appellants next contended that the oral endowment in 1897 having been made at a time when Ganga Prashad was joint in estate with his cousin Jwala Prashad having an undivided moiety share. The gift or dedication of the share in question would be invalid, first, because it was not of certain existing immovable property, and secondly because it was beyond the competence of Ganga Prashad. The argument is supported by the decision in Kalu v. Barsu (2) where it was held that a gift not made from necessity or for the performance of any pious duties obligatory on the family would be invalid, and would not be operative even as regards the share of the donor. The learned Sub-ordinate Judge however held that this question was not of great importance, because the joint and undivided moiety share of Ganga Prashad was ascertained specifically by a partition or division by private arrangement in 1911; when the two plots in suit, as also the plots containing the temple and the dharamshala went into the sole possession of the plaintiff; and further because the defendants themselves claimed the share in question, as also the specific plots of land, on the strength of their re-purchase of the interest of Ganga Prashad. The oral dedication was followed by the possession of the plaintiff; and accordingly there was no uncertainty as to the specific share or as to the plots in question. As to whether the oral endowment was valid or otherwise, that was a point which had to be decided on the particular facts and circumstances and on the evidence in the case.
4. The learned advocate next contended that the oral dedication would be invalid and could not pass any title to the donee having regard to the express provision of Section 123 read with Section 5 of the Transfer of Property Act. The law requires all gifts of immovable property to be compulsorily registered. He relied on Mannu Lal v. Radha Kishenji (3) a decision of the Allahabad High Court. Reference may also be made to Hira Mani Singh…Plaintiff Appelt.; v. Anmol Singh…Defendant Respdt. (4) where their Lordships held that the provisions of S. 123 were mandatory and imperative; and it followed that no gift of immovable property could be made except by means of a registered instrument signed by cir on behalf of the donor, and attested by at least two witnesses. In that particular case a gift had been made by way of sankalp at the time of nuptials; and it was held that such a gift could not operate as a valid gift of immovable property, so as to divest the donor of his proprietary rights or to clothe the donee with any title to the same. The learned Subordinate Judge referred to Ramalinga Chetti v. Sivachidambara Chetty (5) wherein it was held that a dedication of a small portion of joint Hindu family lands to an idol of a temple of the father or manager of the family on the occasion of the funeral of a deceased member was not required to be in writing, and was valid and binding on the other members of the family as a gift ordained for pious purposes. That case followed a previous decision in Pallaya v. Ramavadhanulu (6) and was followed by a later decision in Tadibulli Tammireddi v. Tadibulli Gangireddi (7). In a later Full Bench decision, Narasimhaswami v. Venhatalingam (8) it was held that a gift to God-Almighty, is not a gift to a living person within the meaning of the Transfer of Property Act, and that consequently, S. 123 read with S. 5 of the Act, does not apply to such a gift, so as to require a registered document for its creation. The Court held that though an idol may be regarded by a fiction of law as a juristic person clothed for some purposes with rights of persons, yet a juristic person is not a living person for all purposes; and the principle of stare decisis was applied. In Ramalinga Chetti v. Sivachidambara Chetty the observations of Mookerjee, J., in Bhupati v. Ram Lal (9), are cited with approval to the effect
“that it was conclusively established from Hindu texts and authorities that according to Hindu judicial notions there can be no gift in favour of the gods and that a donor could only content himself with a dedication of things for acceptance. Thera is no acceptance on the part of the deity, but from the dedication, religious merit and spiritual benefit accrues to the person in charge of the worship and the creatures of God.”
5. The Calcutta High Court had from the very earliest times adopted the same view as may be found in Muddun Lal v. Komul Bibi (10), where Glover, J., observed that he was not aware of any ruling of the Calcutta High Court which makes documentary evidence a sine qua non for proof of a grant of a specific endowment. In the great majority of cases, it would of course be looked for; but its absence would not necessarily put out of Court the party suing on the strength of an endowment. In Rambrahma Chatterji v. Kedarnath Banerji (11), Mookerjee, J., observed that the execution of a document is not essential for the purpose of a valid dedication, which may be inferred from the application of proceeds and from family conduct and he followed Muddun Lal v. Komul Bibi , Manohar v. Lahhmiram (12) and Abhiram v. Shyama Charan (13). Their Lordships of the Judicial Committee in Bulli Gangi Reddi v. Bulli Tammireddi (14) observed that a dedication of a portion of the family property for the purpose of a religious charity may, according to Hindu law, be validly made without any instrument in writing, even if it be an appropriation of landed property, and the act of the fearta of the family would be valid if assented to in any way, however informally, by the other members of the family. Such an appropriation may even be made by the karta without consent. Under the circumstances it could not be held that in the absence of a registered document an oral endowment according to Hindu law must necessarily be invalid.
6. The essential point for decision accordingly is whether there was real sankalp and samarpan as pointed out in Deosaran Bharthi v. Deoki Bharthi (15), whereby the property is completely given away and the owner completely divests himself of its ownership. In order to constitute a valid gift, there must be something shown to indicate an acceptance on the part of the donee, and the fact and nature of acceptance must depend upon the circumstances of each case. The learned advocate for the appellants contended that if this principle were applied to the facts was clear that the plaintiff must be considered to have failed. The alleged oral dedication in 1897 was not followed by the mutation of the plaintiff's name in register of the Collectorate. No accounts were produced, though admitted to have been kept, showing that the rents and profits and the income of the dedicated property went to the sole use and benefit of the plaintiff; so that there was no complete divestment of ownership. He further argues that Ganga Prasad's conduct in the execution proceedings of 1914 clearly negatived any such oral dedication; as he throughout sat up his own private rights to the said share and never alleged that there had been any oral dedication in favour of the plaintiff. No claim was preferred by him as manager of the plaintiff under O. 21, R. 58, to resist the execution proceedings. Thera was no evidence of any transference of possession, nor was there anything to prove acceptance by either the plaintiff or by Ganga Prasad as manager of the plaintiff. No weight could attach to the finally published Record-of-Rights as the entries had been made at a time when there was none to resist the entry of the plaintiff's name. The sale of the share had taken place in January 1915, and the decree-holders had themselves become the purchasers; but Ganga Prashad had applied to set aside the sale under O. 21, R. 90 and this matter was pending decision till it came to be finally disposed of in appeal in September 1916, by which time the draft Record-of-Rights had been completed and the final publication was on 4th November 1915. The auction-pur-chasers obtained delivery of possession through Court in August 1916 and their names were registered in the Collector are in November 1917. The learned Subordinate Judge had decided in favour of the oral dedication on the oral evidence of soma witnesses who deposed to the fact; but he had not tested the truth or otherwise of those statements in the light of the other proved or admitted facts enumerated abova.
7. It is argued therefore that his conclusion was not justified and was liable to be challenged even in second appeal as he had drawn a wrong inference on the evidence. The learned advocate for the respondent suggested that, so far as the finding related to the validity of the oral endowment of 4 dams 8 kauris odd milkiat share, it might be discarded as not being a point immediately necessary to be decided. According to him the gift may be divided into two parts, namely the oral dedication of the share, and the setting apart of the four plots, on one of which the temple was built and the dharamshala on another, with the two suit plots which were to be used as phulwari or orchard in connexion with the worship of the plaintiff and if this was made out the plaintiff would be still entitled to a decree in respect of the two plots in suit. It may be observed however that the plaintiff claimed title to the suit plots on the ground that these appertained to the 4 dams 8 kauris share, of which the oral dedication had been made at the time of the installation, and the plaintiff led evidence and invited a decision on the point; and accordingly it was found necessary by both the Courts concerned to inquire into and to adjudicate on the nature of the said title to the milkiyat share. The learned advocate intimated during the course of his argument that the plaintiff had instituted another suit for a declaration of title relating to the said milkiyat share, and this was pending decision in the Court of the Subordinate Judge. He accordingly prayed that the matter relating to the title to the milkiyat share might be left open, as otherwise there was a danger of the decision of this Court operating as res judicata. Whether it will operate as such or not is a matter with which we are not concerned. We would accept the contention of the learned advocate for the appellants and hold that the plaintiff has failed to prove title to the milkiyat share in question on the alleged oral dedication which must be found to have been invalid.
8. In decreeing the suit relating to the two ptots in question the learned Subordinate Judge has given no independent findings, regarding the two plots as distinct from the milkiyat share, as is apparent from his judgment; the first point for determination according to him being whether Ganga Prashad had dedicated the share which included the lands in suit, before it was attached on 14th August 1914. It is also clear that the learned Subordinate Judge did not accept the evidence relating to possession of the suit plots from 1897 up to the publication of the Record-of-Rights as being convincing or sufficient, but be decreed the suit, being of the opinion that possession after the publication of the Record-of-Bights was with the plaintiff. The learned advocate for the respondent suggested that even apart from the oral evidence as to possession, the situation and the local features amply made out the truth of the plaintiff's case. He argued that four plots of lands which came to be numbered as plots 536, 535 and 538, with a total area of 1.95 acres in the ghairmazrua khatian under the samilat khewat 1/44 had been set apart by Ganga Prashad in 1897. The temple stood on plot 536 the area being 28 acres; the dharamshala stood on plot 535 with an area of 05 acre; and the two suit plots were the phulwari plots 534 with an area of 1.45 acres, and 538 with an area of .17 acres. He argues that the proximity of the two suit plots to the temple and the dharamshala gives sufficient indication of the truth of the story of the plaintiff that these were maintained as phulwari in connexion with the temple, and the oral evidence relating to possession ought to be accepted. The learned advocate for the appellant points out that the map shows that plot 538 is far away to the west of the temple, and there are three plots 534, 537 and 541, which intervene between the temple and plot 538, so that the situation of that plot refutes the respondent's contention.
9. As for plot 534 only a small portion of it, namely that immediately to the north, east and south of the temple (plot 536), is so situated that it can be argued that this portion, and plots 535 and 536 were intended to form one plot; but the major portion of plot 534 stands quite-outside and to the west of plot 536. It is a big plot with its greatest length from north to south, and having regard to its area, namely 1.45 acres out of the total ghairmazrua which is 2.19 acres, it is argued that it cannot be believed that this portion could have possibly formed one single plot with plots 536 and 535. He submitted accordingly that the local features were against the submission made on behalf of the respondent. I am inclined to agree with the learned advocate for the appellants; and for the reasons given by him I would find that the respondent's claim in respect of plot 538 had failed completely; and that so far as the suit related to that portion of R.S plot 534, which lay to the west of plot 536, the claim has not at all been made out and that part of the plaintiff's case ought to be dismissed. But for the small portion of plot 534, which lies to the immediate north, east and south of temple plot 536, the local features are in favour of the plaintiff's version; and the evidence relating to possession of this part may be safely accepted as being probable and reliable.
10. This aspect of the case was in a manner admitted by defendant 1 in his evidence when he stated the the temple, the dharamshala and other lands connected therewith were on a plot of about 16 or 17 cottas of land in the sole use and occupation of the plaintiff. The result is that the decree of the Court below must be set aside and the plaintiff's claim allowed only to the extent specified above, the rest of the claim being dismissed. As the appeal succeeds substantially I would allow costs to the appellants throughout in all the Courts.
James, J.:— I agree.
R.M/R.K
11. Appeal allowed.
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