# PT. SHAMBOO NATH TIKOO AND OTHERS v. SARDAR GIAN SINGH AND OTHERS

- **Citation:** [1995] Supp. 1 S.C.R. 692
- **Court:** Supreme Court of India
- **Decided:** 1995-06-30
- **Case number:** Civil Appeal No. 865 of 1973
- **Bench:** K. Ramaswamy, N. Venkatachala
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/pt-shamboo-nath-tikoo-and-others-v-sardar-gian-singh-and-others-13445
- **Pages:** 34

## Headnote

Property Law : Transfer of Property Act, 1882/Easements Act
1882-Disputed property-Lands, Dharamshallas, temples and springs
situated in Anantnag, State of Jammu & Kashmir,-Suit filed by the plaintiffs
C i.e. Hindus-(a) for ejectment of the defendants i.e. Sikhs from two rooms
(Conveited into three rooms) of the suit property and (b) for p~17nanent injunction to restrain the defendants from inteifeling with their possession of
disputed property and their peifonnance of religious ceremonies and pujas
on the said property--Wliether the possession of the two rooms by the defenD dant, was pennissive and hence revocable by the plaintiffs as successors of
Dha11na1th.-Whether the defendants had acquired a title to the two rooms,
by way of adverse possession or had acquired owneiship, because of their
possession being given by Maharaja Pratap Singh by way of a grant-Whether
or not the defendants had an easementary 1ight over the open spaces in the
disputed land to its user for religious congregations or Dewa1is.
E
Constitution of India-A1t. 142-Dispute regarding easement right for
religious congregations-Jurisdiction under A1t. 142( 1) exercised in order to
do complete justice.
The appellants who are Hindus filed before the High Court of
F
Jammu and Kashmir a suit for grant of permanent injunction to restrain
the defendants (a) from interfering with their possession of certain land,
Dharamshalla, temples and springs at Tirath Martand, Anantnag, State
of Jammu and Kashmir; (b) From obstructing their performance of
religious ceremonies and (c) from putting up construction on the disputed
G lands; (d) so also for ejectment of the defendants from the two rooms of
the Southern Dharamshalla.
The suit was partially dl!Cr'll'd to the extent of restraining the defen·
dants by way of a permanent inju11ction from interfering in any way Yjith
the performance of religious ceremonies by the Hindus, and from erecpng
H any Gurudwara at the Martand Premises but was refused as regards eject·
692
S.N. TIKOO v. S.G. SINGH
693
·men! of the defendants from the said two room, which was being used by A
them to keep their sacred' Granth Sahib'.
Aggrieved, the plaintiffs as well as the defendants filed first appeals,
before the High Court of Jammu and Kashmir to the extent of.their.respective grievances.
By it judgment and order the High Court partly allowed the plaintill's
appeal to the extent of confining the holding of Dewans in the vacant space
by the defendants to three specified occasions namely Baisakhi, Dasmi and
Chatti Padshahi but on the other hand dismissed the appeal of the defendants as a whole.
The decree in the suit, as affirmed in appeal before the High Court,
B
c
was thus challenged by the plaintiffs, before this Court limited to the
following issues : (a) Refusal by the Courts below, to grant the decree
against the defendants, for their ejectment from the two room of the
Dharamshalla and (b) Non grant of permanent injunction against the D
defendants, in respect of holding of Dewans in the vacant space, by recognising their easementary rights thereto.
Against the plea of ejectment in respect of the said two rooms it was
contended ·by tbe defendants that (a) under a grant made to the Sikh
community by the erstwhile ruler of State of Jammu, Maharaja Pratap E
Singh, they bad become the owners thereof; (b) or in the alternative, they
had acquired a title to the said rooms by way of adverse possession; (c) and
that they had also acquired easementary rights of conducting Dewans, on
three specific religious occasion is every year, in the open space of Marland
Shrine and hence were not liable to be restrained by a permanent injunction
from holding the said Dewans.
All efforts to bring the present dispute to an amicable settlement
having failed, this Court on merits.
F
HELD : 1. The plea of grant, by Maharaja Pratap Singh having not G
been earlier put forward by the defendants in their written statement, the
·s.ame is unsustainable in law. (712-C]
2.

## Text

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A
B
PT. SHAMBOO NATH TIKOO AND OTHERS
v.
SARDAR GIAN SINGH AND OTHERS
JUNE 30, 1995
[K. RAMASWAMY AND N. VENKATACHALA, JJ.]
Property Law : Transfer of Property Act, 1882/Easements Act
1882-Disputed property-Lands, Dharamshallas, temples and springs
situated in Anantnag, State of Jammu & Kashmir,-Suit filed by the plaintiffs
C i.e. Hindus-(a) for ejectment of the defendants i.e. Sikhs from two rooms
(Conveited into three rooms) of the suit property and (b) for p~17nanent injunction to restrain the defendants from inteifeling with their possession of
disputed property and their peifonnance of religious ceremonies and pujas
on the said property--Wliether the possession of the two rooms by the defenD dant, was pennissive and hence revocable by the plaintiffs as successors of
Dha11na1th.-Whether the defendants had acquired a title to the two rooms,
by way of adverse possession or had acquired owneiship, because of their
possession being given by Maharaja Pratap Singh by way of a grant-Whether
or not the defendants had an easementary 1ight over the open spaces in the
disputed land to its user for religious congregations or Dewa1is.
E
Constitution of India-A1t. 142-Dispute regarding easement right for
religious congregations-Jurisdiction under A1t. 142( 1) exercised in order to
do complete justice.
The appellants who are Hindus filed before the High Court of
F
Jammu and Kashmir a suit for grant of permanent injunction to restrain
the defendants (a) from interfering with their possession of certain land,
Dharamshalla, temples and springs at Tirath Martand, Anantnag, State
of Jammu and Kashmir; (b) From obstructing their performance of
religious ceremonies and (c) from putting up construction on the disputed
G lands; (d) so also for ejectment of the defendants from the two rooms of
the Southern Dharamshalla.
The suit was partially dl!Cr'll'd to the extent of restraining the defen·
dants by way of a permanent inju11ction from interfering in any way Yjith
the performance of religious ceremonies by the Hindus, and from erecpng
H any Gurudwara at the Martand Premises but was refused as regards eject·
692
S.N. TIKOO v. S.G. SINGH
693
·men! of the defendants from the said two room, which was being used by A
them to keep their sacred' Granth Sahib'.
Aggrieved, the plaintiffs as well as the defendants filed first appeals,
before the High Court of Jammu and Kashmir to the extent of.their.respective grievances.
By it judgment and order the High Court partly allowed the plaintill's
appeal to the extent of confining the holding of Dewans in the vacant space
by the defendants to three specified occasions namely Baisakhi, Dasmi and
Chatti Padshahi but on the other hand dismissed the appeal of the defendants as a whole.
The decree in the suit, as affirmed in appeal before the High Court,
B
c
was thus challenged by the plaintiffs, before this Court limited to the
following issues : (a) Refusal by the Courts below, to grant the decree
against the defendants, for their ejectment from the two room of the
Dharamshalla and (b) Non grant of permanent injunction against the D
defendants, in respect of holding of Dewans in the vacant space, by recognising their easementary rights thereto.
Against the plea of ejectment in respect of the said two rooms it was
contended ·by tbe defendants that (a) under a grant made to the Sikh
community by the erstwhile ruler of State of Jammu, Maharaja Pratap E
Singh, they bad become the owners thereof; (b) or in the alternative, they
had acquired a title to the said rooms by way of adverse possession; (c) and
that they had also acquired easementary rights of conducting Dewans, on
three specific religious occasion is every year, in the open space of Marland
Shrine and hence were not liable to be restrained by a permanent injunction
from holding the said Dewans.
All efforts to bring the present dispute to an amicable settlement
having failed, this Court on merits.
F
HELD : 1. The plea of grant, by Maharaja Pratap Singh having not G
been earlier put forward by the defendants in their written statement, the
·s.ame is unsustainable in law. (712-C]
2. The possession of the two rooms, given to the Sikh community at
the behest of Maharaja Pratap Singh for keeping the 'Granth Sahib' was
purely in the nature of permissive possession. Permissive possession canH
694
SUPREME COURT REPORTS [1995] SUPP. l S.C.R.
A
not be converted into an adverse possession unless it is proved that the
person in possession, asserted an adverse title to the property to the
knowledge of the true owners for period of twelve years or more.
B
c
D
[712-H, 713-B]
The defendants in their written statement though have stated that
they were in possession of not only the rooms, but also in possession of the
whole shrine and its precincts for over a period of twelve years, they have
nowhere mentioned or led any evidence to prove that, they had made it
known to the Dharmath department, which was in the management of the
shrine and the Dharamshalla, that they had converted their permissive
possession of the two rooms into adverse possession. There is also no issue
raised in the suit, as to whether or not the defendants had perfected their
title to the said rooms by adverse possession. [714-B-C]
State Bank of Travancore v. Arvindan Kzmju Panicker and Ors., AIR
(1971) SC 996, referred to.
3. Ordinarily the possession of the open space would go with the
possession over the material structure, buildings and springs within the
midst of which it lies. [719-A]
The whole shrine including the vacant space, as also has been
E
recorded in the revenue Records, has been in possession of the Hindus from
times immemorial. The right of user of another's land by custom cannot be
sustained, unless it is proved by the party claiming such right whether the
right is ancient, peaceful, reasonable and specific and was being exercised
as of right, continuously without interference. [719-E, H, 720-A]
F
Raja Braja Sunder Deb and Ors. v. Mani Behara and Ors. AIR (1951)
Sc 247, referred to.
4. In the facts and circumstances of the present case, for want of
production of sufficient evidence on the part of the defendants to prove their
G ownership rights in respect of the open space, their claim to held Dewans,
on basis of acquisition of such rights as easement, in absence of alternative
plea taken in their written statement is not sustainable in law. [721-D]
5. Although the defendants has not acquired any title to the two
rooms by either a grant made by Maharaja Pratap Singh or because of their
H perfecting title thereto by adverse possession, the interest of justice does
S.N. TIKOO v. S.G. SINGH [VENKATACHALA, J.]
695
not warrant their ejectment from the said two rooms where they keep their A
'Gran th Sahib'. However, their right to continue in possessiou of the said
two rooms is to be regarded as permissive possessiou and any act which
may be committed by the Sikhs which results in obstruction of performance
of Puja or religious ceremonies in the disputed property would give the
plaintiffs a cause of action to eject defendants by having recourse to legal
proceedings. (723-C-D]
6. Although the defendants have failed to establish easementary right
to hold Dewans in the open space, but having allowed the Sikhs to use to
B
two rooms, it cannot be in the interest of justice to restrain them from
holding Dewans in the open space of. Martand shrine, when as of necessity C
they are compelled to hold Dewans in a place close to the place where their
holy script is kept. Hence the defendants whenever decide to hold Dewans,
on any of the three occasions in the year, the same ought to be held by
requiring the people interested in attending the same to reach the said open
space, without crossing the premises of the shrine or the springs where the
Hindus would be performing their pujas. (723-G-H, 724-A-C]
D
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 865 of
1973.
From the Judgment and Order dated 3.5.72 of the Jammu & Kashmir
High Court in L.P .A. No. 83 of 1967.
E
D.V. Sehgal, K.C. Dua, Y.P. Mahajan, G. Juneja, Ratan Lal, Ms.
Usha Yadav, Ms. Monika Gusain and Bimal Roy Jad for the Appellants.
M. S. Gujral, V.J. Francis and V. Subramanian for the Respondents.
The Judgment of the Court was delivered by
F
VENKATACHALA, J. Appellants were the plaintiffs while respondents were defendants in Civil Original Suit No. 20 of 1958 filed in the
High Court of Jammu and Kashmir in respect of Marland Shrine in
Anantnag District. Decree sought for in the suit was for grant of permanent G
injunction to restrain the defendants, from interfering with plaintiffs' possession of lands measuring 19 Kanals 12 Marlas in Survy Plots 1424/4,
1962/1424/4 and 2304/1143/1 measuring (19 Kanals 6 Marlas, 6 Marlas) and
9 Kanals 18 Marlas respectively and D haramshallas, temples and springs
at Tirath Marland, Village Macha Bhawan, Tehsil Anantnag; from
obstructing Hindus, of their worship of gods in the Temples or of their H
696
SUPREME COURT REPORTS (1995] SUPP.ii S.C.R.
A
performance of religi~us ceremonies at the springs and putting up any
constructions on the disputed lands; and for ejectment of the defendants
from two rooms (converted into three rooms) out of six room of the
Dharamshalla on the southern side of the springs of Marland. Decree so
sought for in the suit was granted limited to the extent of restraining
B
c
defendants by permanent injunction from interfering in any way with the
performance of religious ceremonies by Hindus at the three springs (Kamal
Kund, Bimal Kund and Gauri Kund), or their conducting of pujas in the
temples and of holding Dewans in the open space north of the springs
towards Pahalgam side on the occasions of Mal Mas, Ban Mas, Suraj
Grahan, Chand Grahan, Soma Wati Amawas (Amawas Falling on Monday), Amar Nath Jee Yatara Period and Vijay Saptami (7th day of Hindus
month failing on Sunday), and of plaintiffs' possession of the building
situated to the north of Dharamshalla towards Pahalgam Road and from
erecting any Gurudwara at the Marland premises. But, decree was refused
as regards ejectment of defendants from the two rooms (converted into
three rooms) of Dharamohalla in their possession as also of permanent
D injunction sought for in respect of four marlas of the land in Plot No.
2304/1143/1.
E
F
G
H
·The said decree in the suit was questioned by the plaintiffs in the
First Appeal No. 83/67 filed by them in the same High Court to the extent
it did not grant certain reliefs while the same was questioned by the
defendants insofar it has granted certain reliefs against them by filing Civil
First Appeal No. 87/67. A Division Bench comprised of Mian Jalal-ud-Din
and Anant Singh, J.T. heard the said two appeals having clubbed them
together. Since the learned Judges who rendered separate judgments in
those appeals failed to reach an agreement on two of the points that arose
for their consideration therein, they requested the Hon'ble Chief Justice,
to refer the two points on which they had not agreed, to a third Judge for
his opinion thereon by making the following order :
"As may learned brother Anant Singh J. and myself have not
agreed in our respective judgments to the points relating to questions of adverse possession and the right of holding Dewans by the
defendants, the matter may, therefore, be placed before my Lord
Hon'hle the Chi.ef Justice for referring these points to a third Judge
to be nominated by his Lordships."
Mufti Baha-ud-din Farooqik, J. being the third Judge to whom the
...
....
,
-
S.N. TIKOO. v. S.G. SINGH [VENKATACHALA, J.]
697
said two points were referred for his opinion, adverts to those points in his A
judgment thus :
·
· Anant Singh, J. held that the possession of the defendants over
the two rooms in the southern Dharamshalla was permissive and
could be revoked by the. plaintiffs as successors of Dharmarth. As
regards holding of Dewans on the open space he held that the use
could be based on custom but in the absence of any reliable
evidence showing that the Dewans were held every year on the
specified occasion and were so held as of right from times im- .
memorial no right could be found in favour of the defendants. On
this view he held that the finding of the learned Single Judge on
these two items should be set aside.
Mian Jalal-ud-Din, J., however, expressed a contrary opinion.
he held. that the defendants were in possession of the two rooms
B
c
in the southern Dharamshalla in their own right and in the alternative by adverse possession. As regards the holding of Dewans D
on the open space .he held that the Sikhs have been holding the
same for the last over fifty years to the knowledge of the plaintiffs
and without any -objection from them on there specified occasions
namely Baisakhi, Daswi and Chatti Padshahi and that this was
sufficient to disentitle the plaintiffs from claiming a relief for
E
permanent injunction as would be derogatory to the holding of
Dewans by Sikhs on these occasions."
What, therefore, according to Farooqi, J. the third Judge, the points
in the appeal on which Anant Singh, J. and Mian.Jalal-ud- Din, J. had·not
agreed upon and which were referred for his opinion as that relating to F
adverse possession and as that relating to right to adverse possession and
as that relating to right of holding Dewans by defendants, were these :
1. Whether the possession of defendants of the two rooms in the
southern Dharamshalla was permissive and hence revokable by the G
plaintiffs as successors of Dharmarth, as held by Anant Singh, J.
or whether the possession of defendants of the two rooms in the
southern Dhararnshalla was that held in their own right or in the
alternative by adverse possession as held by Mian Jalal-ud-Din, J.
2. Whether the defendants had no right to hold Dewans in open H
698
A
B
SUPREME COURT REPORTS (1995) SUPP. 1 S.C.R.
space to the north the springs towards Pahalgam side on the basis
of custom, since no reliable evidence was adduced for showing that
Dewans were held every year on specific occasions and from times
immemorial, as held by Anant Singh, J. or whether the plaintiffs
were disentitled to claim permanent injunction against defendants
for holding Dewans on that open space on three specific occasions,
Baisakhi, Daswi and Chatti Padshahi as such Dewans had been
held for over 50 years to the knowledge of the plaintiffs and without
any objection from them as held by Mian Jalal-ud-Din, J.
Opinion of Farooqi, J., the third Judge on Point-1 above, was stated
C thus:
The Maharaja Pratap Singh, a sovereign ruler, who was entitled to
deal with Dharamshalla in any manner he liked, dedicated two rooms of .
the Dharamshalla to Sikhs, Such dedication was not withdrawn by the
Maharaja at any time. The mere fact that receipt, Ext, PW. 3/1 includes
D the entire Dharamshalla as one of the properties transferred to Prohit
Sabha by Dharmarth would not affect the legal position of dedication in
favour of Sikhs. The claim of the plaintiffs for two rooms based on
permissive possession was false. The plaintiffs cannot succeed in getting
possession of the rooms even if it is assumed they had title to the same, in
as much as, the suit for possession of rooms not haviri.g been filed within
E 12 years from the date of dispossession was barred by Article 142 of the
Limitation Act, 1908. Even otherwise, the defendants had proved that they
had acquired title to the property by adverse possession by the time of filing
of the suit.
F
Opinion of Farooqi, J., the third Judge, on Point-2, above, was stated
thus:
The defendants had shown that the Sikhs had a right of easement
over the vacant space to its user for religious congregation on three specific
occasions, namely, Baisakhi, Daswi and Chatti Padshahi, and a such
G
defendants' right to use the space for conducting Dewans should be limited
to those three occasions.
Concurring opinions of the two Judges expressed on several points
in their separate judgments rendered in the appeals and the third Judge's
opinion expressed in this judgment on the aforesaid two points referred for
H his opinion, not only led to the dismissal of the plaintiffs first appeal except
•
..
., .
S.N. TIKOO v. S.G. SINGH [VENKATACHALA, J.]
699
to the extent of confining the holding of Dewans in the vacant space by A
defendants to three specified occasions of Baisakhi, Daswi and Chatti
Padshahi, but also to the dismissal of defendants' First Appeal, as a whole ..
As against the said decree in the First appeals made by the High
Court allowing the plaintiffs' First Appeal partly and dismissing the
defendants' Firs Appeal as a whole, although the plaintiffs have filed the B
present appeal by special leave in this Court the defendants have not
chosen to file any such appeal. In other words, the decree made in the suit
as affirmed in appeals which stands unquestioned is the decree made
against the defendants restraining them by permanent injunction from
interfering in any way with the performance of religious ceremonies by C
Hindus at three springs {Kamal Kund, Bimal Kund and Gauri Kund) in an
· area of two kanals or of pujas by Hindus at the three temples to the
extreme west of the springs one of which is known as Sutaj Mandir or of
possession and enjoyment of four rooms out of six rooms of Dharamshalla
1
building in one Kanai five marlas in plot No. 1424/4 and of possession and ·
enjoyment of the bath rooms and of the building used for Pathshalla D
purposes and of possession and enjoyment of open space to the north of
springs towards Pahalgam Road which cover an area of 16Jranals and 6
marlas except when used by defendants for Dewans on those o~asions of
Baisakhi, Daswi and chatti Padshahi, all of the Shrine of Martand, Village
Macha Bhawan, Tehsil Anantnag.
Hence, the decree in the suit as affirmed in First Appeals before the
High Court which is under challenge before this Court in the present
appeal filed by plaintiffs is limited to the following :
E
(1) Refusing to direct the ejectment of defendants from two rooms F
(converted into three rooms) out of six rooms of Dharamshalla in
one Kanai five mar!as of land in Plot No. 1424/4 by holding that
the defendants have acquired ownership in respect of it either
because of their possession being given by Maharaj!'- Pratap Singh
by way of grant or because of acquisition on of title to the same
by adverse possession; and
G
-
(2) Refusing to restrain defendants from holding Dewans in open
space to the north of the springs towards Pahalgam side on special
occasion of Baisakhi, Daswi and Chatti Padshahi, by recognising
their easementary right to hold such Dewans.
H
A
B
c
700
SUPREME COURT REPORTS [1995] SUPP.1 S.C.R.
Therefore, what is questioned by the plaintiffs-appellants in this
appeal is the refusal of the Courts below to grant the decree in their suit
against the defendants for their cjectment from two rooms (converted into
three rooms) of the Dharamshalla and of non-grant of permanent injunction against the defendants in respect of holding of Dewans in open space
on Pahalgam side on three occasions of Baisakhi, Daswi and Chatti Padshahi, recognising their casementary right thereto.
Before, we deal with the questions raised in the present appeal on
behalf of the plaintiffs in the suit, we may state how our attempt to bring
about an amicable settlement among contesting parties, could not succeed.
Plaintiffs expressed their willingness to forego their claim to the two
rooms (converted into three rooms) in Dharamshalla, which were in occupation of defendants, if the defendants gave an undertaking to enter the
open space from Pahalgam side to hold their Dewans on three occasions
of Baisakhi, Daswi and Chatti Padshahi directly from Pahalgam Road and
D not to seek to enter that open space through the premises of the shrine of
Martand where the springs are found. But, the plaintiffs did not agree for
the holding of Dewans in the open space by entering into the said open
spi'ce directly from Pahalgam road on the plea that the two rooms (now
converted into three rooms) of Dharamshalla are opened towards the
E
F
Shrine.and the springs, and therefore they must be allowed to hold Dewans
in the open space crossing the premises of Marland Shrine. As the claim
of the defendants that the rooms in Dharamshalla were opened towards
the shrine was disputed by the plaintiffs, we appointed a Commissioner to
hold a local inspection and make a report. However, as it as reported to
us by learned counsel for parties that the atmosphere that prevailed at the
spot was not safe for the Commissioner to make a local inspection and that
there was no possibility of parties arriving at an amicable settlement, we
had no option but to hear the appeal on merits and decide the same.
We have, therefore, heard arguments of learned counsel appearing
for the contesting parties in the appeal, carefully gone through the written
G submissions filed by them and are proceeding to decide the appeal on
merits by this judgment.
The points which need to be considered and answered for deciding
the plaintiffs appeals in the light of the said oral arguments and written
submissions of learned counsel for contesting parties could be formulated,
H for purposes of proper and effective consideration, thus :
. .._
-
S.N. TIKOO v. S.G. SINGH [VENKATACHALA, J.]
701
1.
Is the finding that the defendant in the suit had ac_quired title· · A
in respect of two rooms (converted into three rooms) of
Southern Dharamshalla of the Marland Shrine because of a
'·
specific grant made thereto by Maharaja Pratap Singh while
he was the sovereign Ruler of Jammu State, recorded by the
learned third Judge of the High Court (Farooqi, J.) for whose B
deciSion the two questions - one relating to adverse possession and another relating to holding of D~wans, on which two
Judges of the Division Bench deciding the appeals, had not
agreed upon, unsustainable?
2.
Was the possession of two rooms (converted into three c
rooms) in Southern Dharamshalla of Marland Shrine given
in the year 1913 AD. by Maharaja Partap Singh to the Sikh
Community (since represented by the defendants) was in the
nature of merely permissive possession, as claimed by the
/
plaintiffs?
D
3.
It the finding that the defendants had acquired title to two
rooms (converted into three rooms) out of six rooms of
Southern Dharamshalla of Marland Shrine by adverse possession, of the learned third Judge of the High Court,
(Farooqi, J .) for whose deciSion the question relating to such E
adverse possession arising in the appeal was referred, unsustainable?
4.
Is finding that the defendants had acquired easementary right
to hold their Dewans in the open space of Martand Shrine
towards Pahalgam Road, on three occasions - Baisakhi, Daswi F
and Chatti Padshahi, of the learned third Judge of the High
Court (Farooqi, J.) for whose decision the question relating
to such holding of Dewans arising in the appeal was referred,
~
unsustainable ?
5.
If it is found that the defendants (Sikhs) have not acquired G
title in respect of two rooms (converted into three rooms) out
of six rooms in the Southern Dharamshalla of Marland Shrine
because of either grant made by Maharaja Partap Singh or
of Adverse possession, are the defendants liable to be ejected
from the two rooms (converted into three rooms) of the H
702
A
B
c
SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.
Southern Dharamshalla, when two of the converted rooms
are used for keeping their sacred 'Granth Sahib' and one of
the converted room is used as kitchen or Langer Room for
preparing food to feed the poor or could the defendants be
allowed to continue in permissive possession subject to imposition of reasonable restrictions '!
6.
If it is found that the defendants (Sikhs) had not acquired
easementary right of conducting dewans on three occasions
of every year Baisakhi, Daswi and Chatti Padshahi, in the
open space of Marland and Shrine towards Pahalgam Road,
are the defendants liable to be restrained by a permanent
injunction from holding the said Dewans in that open space
or could the defendants (sikhs) be allowed to hold such
Dewans subject to imposition of reasonable restrictions on its
user?
D
The said points shall now be taken up seriatim for consideration and
E
F
G
H
answered.
Point-I:
The point relates to sustainability of the finding on acquisition of title
by Sikh Community - the defendants in respect of two rooms (converted
into three rooms) in the So\lthern Dharamshalla of the Marland Shrine
under a grant, recorded by Farooqi, J.
The case of the plaintiffs for ejectment of the defendants from the
two rooms (converted into three rooms) of Southern Dharamshalla of
Marland Shrine, as pleaded in paras 2, 4, 5, 10, 12 and 14 of their
suit-plaint, reads :
"2.
That there is a Tirath namely Martand Tirath situate in
Village Macha Bhawan, Tehsil Anantnag, of the Hindus existing from olden times.
3.
4.
That the possession of the Hindus has duly been recorded in
the revenue record and the Settlement Record from olden
times and it is in possession and under the ownership of the
,.
/
S.N. TIKOOv. S.G.SINGH [VENKATACHALA,J.]
703
Hindus, ................ .
A
5.
That since the Dharamshalla Deptt. came into existence it is
watching, managing and taking care of Dharamshallas and
the temple.
6.
B
7.
8.
9.
c
10. That the Dharmarth department had permitted Sikhs to place
Granth Sahib temporarily in two rooms, when their Dharamshalla had demolished which was at a very long distance from
Marland Tirath and the permission was granted temporarily D
to place Granth Sahib there till reconstruction of the Dharamshalla. The Sikhs evaded constructing their own Gurudwara
and Dharmarth department pressed the defendants to vacate
the said rooms. In consequence of this a dispute arose between Sikhs and Dharmarth department and it took a grave
shape. Due to this dispute the Government intervened and E
on the intervention of the Government of J&K the Sikhs
nominated Sardar Kanya Singh, Sardar Guiab Singh, Sardar
Nirmal Singh and Dr. Jaswant Singh as their representatives
and attorneys and it was decided with the Dharmarth department alongwith the then Hon'ble Finance Minister, that both F
the rooms would be got vacated and Granth Sahib will be
placed in the New Dharamshalla and these two rooms shall
be used temporarily for Granth Sahib, till new Dharamshalla
is constructed on the Government expenses. This compromise
deed was executed on 4th Assuj, 1992 jointly by the aforesaid G
representatives and Dharmarth department in presence of the
then Wazir Wazarat Anantnag and Hon'ble Finance Minister
by which dispute between Dharmarth department and the
defendants (Sikhs) ended. At the time the deed dated 4 Assuj
1992 was executed Sikhs had converted these two rooms into
four rooms and at present these four rooms have again been H
----------;----------;----·-~~··
704
A
B
c
D
E
F
G
H
SUPREME COURT REPORTS (1995) SUPP.1 S.C.R.
converted into two rooms and one kitchen.
11.
12. That the plaintiffs have been old Purohits from generation to
generation of this Tirath. Prior to the existence of D harmarth
department the management of this Trrath was with the elders
of the plaintiffs. The Dharmarth department gave up the
management to the plaintiffs by order of His Highness on 22
Sawan 2007 and handed over its management to the plaintiffs
instead of the Dharmarth department which was hitherto
before in old times. To facilitate the disposal of the case, the
D harmarth Council has been arrayed as proforma defendant.·
The plaintiffs were demanding of the defendant to vacate
these· rooms and io take out the Gra~th Sahib from the
. existing rooms and make their arrangements but the defendants continued evading. At the plaintiffs persistency the
defendants started creating disturbance and to grab these
rooms by oppression and taking out their daggers over-awed
the plaintiffs attempting to take possession of the springs and
tried to put obstruction to the Hindus in performing their
religious rites and tried to show that the Tirath is of Guru
Nanak Ji. They were creating the disturbances from time to
time for about two years. Gradually the disturbance
prolonged till the Government itself took the possession of
this sacred Marland Tirath, detailed a police guard, ...............•
13 ........••••.......••.........••.......••...........
14. That two rooms are in possession of the defendants on
temporary basis which 'are existing at pr;sent .in the shape of
three rooms. The plaintiffs ,are entitle.t to the possession of
these rooms and the defendants are bound to ·take out Granth
Sahib from these rooms as has been decided and agreed to
by the representatives of the defendants in the year 1992. The
Government of Jammu and Kashmir and the Dharmartb
department which was managing body of the Marland Tirath
have consented that permission to keep Granth Sahib for
some time be given and Granth Sahib be placed ·somewhere
else which the defendants did not do. Therefore, the plaintiffs
S.N. TIKOO v. S.G. SINGH [VENKATACHALA, J.]
705
are desirous to get them ejected from these rooms and are A
entitled to possession. . ...................... "
In the two written statements filed by the defendants, the whole
defence set up by them in respect of two rooms (converted into three
rooms)of the Southern Dharamshalla of Marland Shrine, from which
defendants' ejectment was sought) is contained in para 10 of the ~Tittcn
statement of defendants-3, 7 and 8, and paras 5 and 10 of the written
statement of all the defendants including defendants-3, 7 and 8. Para 10 of
written statement of defendants-3, 7 and 8 reads :
B
PARA 10 OF WRITTEN STATEMENT OF DEFENDANTS-3, C
7 AND 8.
"10. Para No. 10 is contrary to the fact and incorrect. Hence its
entire contents are denied. The Sikh Community has been the
owner and in possession of the suit land for more than 12 years as
is known to "Hindu Community" and they have many historical D
documents, compromise deeds, and other witnesses and proof in
their favour, which have proved that the owners, occupants and
the usufructory of the disputed property are Sikhs."
PARA 5 AND 10 OF THE WRITTEN STATEMENT OF ALL
THE DEFENDANTS.
"5. Para 5 of the plaint is denied. The property in dispute was never
managed or supervised by the Dharmarth department at any time."
"10. That Para No. 10 is incorrect and hence is denied. The
Dharmarth had no connection with the rooms in possession of the
Sikhs and used as Gurudawara, nor did they give rooms to the
Sikhs for any purpose. The historic Gurudawara of the Sikhs is at
spring No. 2 known as Macha Bhawan. In fact, on the three sides
E
F
of the spring No. 2 there were 7 Gurudawaras wherein seven Bira
(Volumes) of Guru Granth Sahib were installed, one in each G
Gurudawara. Besides, there were 45 rooms for the use of the
pilgrims to the historic Sikh Gurudawara Mattan Sabib. Those
buildings were demolished under the orders of Maharaja Partap
Singh on account of their being too old and with a view to erect
new building in these place. But due to the first great war the new
proposed construction by the Government could not be under- H
706
A
B
SUPREME COURT REPORTS [1995] SUPP. 1 S.C.R.
taken and only the present line of 7 rooms been used as the
building of the Gurudawara. Four rooms are actually used for the
worship of the Guru Granth Sahib therein and the remaining three
rooms are used for the use of pilgrims. There was no dispute
between the Sikh and the Government in 1942 or there about
regarding the Gurudawara as alleged in this para of the plaint nor
Sardar Kanahaya Singh and others mentioned in this para were
ever appointed as representatives of the Sikh Community and the
Sikh Community is not bound by any undertaking of theirs even if
there is any."
C
However, even the additional plea taken by way of defence in the
written statement filed by all the defendants against their ejectment from
the said two rooms, in para 17(i) thereof, was merely, the following :
D
E
"(i) That the Gurudawara Mattan Sahib is a historic sikh Shrine
founded in memory of the first Sikh lord Guru Nanak Dev
Jee. According to the historians he visited this spot before
1657 and since then this sacred shrine remained connected
with the Sikhs and the Sikh history. After the conquest of
Kashmir the Gurudawara was built by the orders of Maharaja
Ranjit Singh and a Muafi and a jagir was given which continues till today."
The defence put-forth by the defendants as seen from their written
statements, against the plea of ejectment putforth against them by the
plaintiffs in their suit, does not show that they were not liable to ejectment
from the two rooms (converted into three rooms) in the Southern DharamF
shalla of the Marland Shrine, for the reason that those rooms were given
away to the Sikh Community by Maharaja Partap Singh by way of grant,
while he was the sovereign Ruler of the Jammu State. Even if the averments
contained in the aforesaid paragraphs of the written statement of the
defendants are read as a whole, it is impossible either to infer or imagine
G that the defendants wanted to resist the suit of the plaintiffs filed against
them for ejectment from the two rooms (converted into three rooms) in
the Southern Dharamshalla, as granted of the said rooms under a grant
made by Maharaja Partap Singh in favour of the Sikh Community for
placing 'Granth Sahib' in those rooms and as such they had become owners
by grant of two rooms made by the then sovereign Ruler of Jammu State,
H Maharaja Partap Singb.
S.N. TIKOO v. S.G. SINGH [VENKATACHALA, J.j
707
No doubt, the finding recorded by the learned third Judge (Farooqi, A
J.) that tow rooms of Dharamshalla had been granted by Maharaja Partap
Singilin favour of the Sikh Community-defendants, accords with the finding of another learned Judge (Jalal-ud-Din, J.) But, that finding in our view,
becomes wholly unsustainable being altogether a new case made out for
the defendants by him, in that, such case is not in any way traceable to the
pleas of defence of the defendants set out in their wrillen statement against
their ejectment from the said two rooms.
B
Moreover, the learned third Judge (Farooqi, J.) could not have
recorded the fin!ling that the two rooms (Converted into three rooms) in
Southern Dhar~~shalla of Marland Shrine were given, by way of grant by C
Maharaja Partap Singh to the Sikh Community- defendants when the
defence pleaded by the defendants in their written statements that
Dharamshalla consisting of seven rooms was erected by Maharaja Partap
Singh in lieu of seven gurudawara which were said to have been existing
before, had been negatived by the second learned Judge (Jalal-ud-Din, J.) D
agreeing with the. other learned judge of the Division Bench (Anant Singh,
J.) by holding thus :
"After an appraisal of the evidence of the record I am not prepared
to accept the contention of the defendants that the Dharamshalla
consisting of seven rooms was erected by the Maharaja Partap E
Singh in lieu of seven Gurudawara that are said to have existed
before. There is no evidence on the record to this effect. However,
this is evidence on the record to show that a Dharamshalla existed
on the southern side which was in a dilapidated condition which
was demolished and a new D haramshalla was constructed. It is
f
difficult to believe the story put up by the defendants in the case
that their Gurudawaras existed within the Mattan
Shrine ..................
11
Beside, when Farooqi, J. was, according to the reference order,
required to decide on two specific questions one relating to acquisition of G
title to two rooms (converted into three rooms) in Southern Dharamshalla
by adverse possession and another relating to holding of Dewans by the
defendants in the open space towards Pahalgam road, because of the
differing opinions of two learned judges of the Division Bench deciding the
appeal, the finding recorded by him that the defendants had acquired title H
708
SUPREME COURT REPORTS [1995) SUPP. 1 S.C.R.
A
two room (converted into three rooms) in Southern Dharamshalla by
reason of grant made by Maharaja Partap Singh in their favour, calls to be
disregarded as that made by him beyond the terms of reference requiring
his opinion.
B
Hence, the finding of the learned Judge (Farooqi, J.) that the defendants acquired title of the two rooms (converted into three rooms) in the
Southern Dharamshalla by reason of a grant made in their favour (Sikh
Community) by Maharaja Partap Singh, .becomes wholly unsustainable in
law. We answer point-1, accordingly.
C Point- 2 :
When the possession of two room (converted into three rooms) of
Southern Dharamshalla was given in the year 1913 to Sikh Community -
the defendants at the behest of Maharaja Partap Singh for keeping the
'Granth Sahib'; was such possession in the nature of permissive possession,
D is the point requiring our consideration here. The plaintiffs' case in respect
of the two rooms (converted into three rooms), from which ejectment of
the defendants as sought, in their suit, is that specifically set out in their
plaint to which we have already referred to while dealing with Point-1 and
particularised in their evidence at the trial of the suit. That case of the
E
plaintiffs put in a nut- shell, is the following :
That there was an old Gurudawara of Sikhs situated at a place which
was far away from the precincts of Marland Shrine. When that old
Gurudawara of Sikh fell down, the Sikh did not like their 'Granth Sahib'
which had been kept there, to be shifted and kept in a private building.
F
Consequently, in the year 1913, they approached Maharaja Partap Singh
with a request to get two rooms of the Southern Dharamshalla of Marland
Shrine, which had after its re-construction at Government expense, continued to be in the management of Dharmarth Department, for Keeping
their 'Granth Sahib' till their (Sikhs) Dharamshalla was re-build. Maharaja
G Partap Singh, who found the said request of Sikhs to be just and genuine,
conceded to the same and directed the Dhararnshalla Department to allow
Sikhs to keep their 'Granth Sahib', in two room of the Southern Dharamshalla of Marland Shrine until their (Sikhs) own Dharamshalla was re-built
either by themselves or at the expense of the State. Accordingly, possession
of two rooms in Southern Dharamshalla was given by Dharmarth DepartH ment to Sikhs for keeping their sacred 'Granth Sahib'. Dharmarth Depart-
S.N. TIKOO v. S.G. SINGH [VENKATACHALA, J.]
709
ment at the time of giving possession of two rooms (converted into three A
rooms) of Southern Dharamshalla to Sikhs for keeping their 'Granth Sahib.'
was managing the affairs of Marland Shrine including its Southern
Dharamshalla on behalf of Hindus to whom the shrine and Dharamshalla
belonged since Dharmarth Department itself had been created by Government to take over management of Hindu temples and Dharamshalla and
manage the same for the benefit of Hindus; Since Southern Dharamshalla B
of Martand Shrine was reconstructed in the place of dilapidated Dharamshalla, belonging to Hindus it did not cease to belong to Hindus even if
such reconstruction was funded by Government. Indeed, neither the
Maharaja nor "his Government either acquired or intended to acquired
Marland Shrine's or it Dharamshalla's owoership rights. Thus, when the C
Maharaja or his Govermnent had not acquired any owoership rights of the
Marland Shrine or its properties including Southern re-constructed
Dharamshalla neither the Maharaja nor his Dharmarth department could
give away to the Sikhs any rooms in the Dharamshalla by way of grant as
would transfer the owoership rights in them.