Radhey Shyam v. Salig Ram

9. The affidavits of both the parties are on record.

10. The Court has heard the matter today. The present application pertains to untoward practice which had been going on regarding performance of the Pooja Seva at Shri Kalkaji Mandir due to disputes between Baaridars. Courts had been compelled to auction the baaris from time to time in different proceedings.

11. In the present suit, the dispute is between parties belonging to Thulla Tansukh. In the Thulla Tansukh just like in any other group of Baaridars in the Shri Kalkaji Mandir, there are three types of baris which are performed: i. Monthly baari ii. Shashmahi baari iii. Londh baari.

12. It is the admitted position that the Shashmahi baari comes once every eight years, the monthly baari comes once in every three years and the londh baari comes once every twelve years. 18:32

13. In respect of this very group i.e., Thulla Tansukh, various proceedings were pending in the District Courts. In one of the proceedings with regard to ‘monthly baari’ being CS No. 303/1997, on 10th October, 1997, baari was auctioned and the Court had directed deposit of a sum of Rs. 29,50,000/- in the form of an FDR for the baari between 11th October, 1997 to 10th November, 1997. The said order dated 10th October, 1997 is set out below: “Counsel for the deft No. 1 to 7 have moved an application u/s 151 CPC for not participating in the auction along with the deft no. 8 to 15 on the ground that they do not belong to the family of the applicant and therefore it is prayed by the deft that this auction cannot be held today. Arguments heard on this application. In view of the order dt 7.10.97, I am of the view that once the order for auction has been passed, there is no ground for changing that order. Therefore this application is dismissed being not maintainable. However in view of this application the deft no 1 to 7 are at liberty of non joining the auction at their own choice. Similarly an application was moved by the deft no 12 to 15 on 8.10.97 which was dismissed by order of the same date and in view of that application as the deft no 12 to 15 does not want to participate in the auction, they are also at liberty of non joining the auction. Therefore, auction of the coming bari is to be held between the pltff and the deft no. 8 to 11 who are present in person. Forthcoming bari is auctioned and the deft no 8 to 11 being the highest bidder are entitled to perform the sevapuja and collect the tehbazari of the for the period from midnight of 11.10.97 to midnight of 10.11.97. The deft no 8 to 11 are directed to deposit the amount of Rs. 29.[5] lacs in the form of F.D.R and to place on record original FDR in the court by 2 p.m. on 10.10.97 and in case the deft no 8 to 11 failed to do so the pltffs will be entitled to perform sevapuja and collection of tehbazari for the abovesaid period. They are also directed in case of failure of the deft to deposit 18:32 amount of Rs. 29.[5] lacs in the form of FDR by the 13.10.97 at 2 р.m. An amount of Rs. 1 lac were deposited by the pltff and the deft no 8 to 11 as security amount before auction. The pltffs are allowed to take their money back and amount of Rs. 1 lac of the deft no 8 to 11 are kept in the safe custody of reader Sh. Om Partesh as the deft no 8 to 11 are highest bidder. Parties other than the bidders and entitled parties as per this order are restrained from interfering in the rights of the parties who are performing sevapuja for the abovesaid period in any manner. Also SHO of PS Kalkaji is directed to do necessary steps for compliance of this order i.e. handing over of possession of kalash to the person/persons entitled for performing sevapuja in the coming bari in view of this order. Copy of this order be given dasti to the pltff, deft no 8 to 11 and one copy of this order be sent to SHO of PS Kalkaji which is to be given dasti to the deft no. 8 to 11. Put up on 10.10.97.”

14. However, vide order dated 8th January, 2001, the proceeding in the suit, was adjourned sine die due to disputes which were pending adjudication between the same parties in other proceedings. The said order is relevant and is set out below: “In the present matter applications have been filed on behalf of the parties seeking withdrawal of the amount deposited in the treasury of the court. In the present case, it is admitted by all the parties that respective shares on behalf of pltfs, and defts, are disputed as they are based on their respective title. It is admitted by all the parties that multifarious litigation is pending between the parties in the different courts with respect to settling their title is pending before Hon. High Court out of which certain applications and SLP had also been moved before Hon. Supreme Court. On the 18:32 different hearings parties have moved applications seeking withdrawal, however, it is admitted that unless their rights, title and claims towards their shares are established the present claim qua withdrawal of the amount cannot be decided. In view of this fact, the suit is stayed sine die till the matter before High Court is settled, after which the suit may be revived seeking withdrawal of their respective claims. File be consigned to RR after completing necessary formalities.”

15. In the meantime, in respect of the Shashmahi baari, vide order dated 22nd October, 2001 in CS No. 2134/2001 titled Kripa Ram & Ors. v. Hira Devi and Ors., a final settlement between the parties was recorded by the ld. District Court. The said settlement reads as under: “IA 9699/01 (u/o 39 R 1 & 2 CPC) & S.No. 2134/01 In the course of hearing on the application for temporary injunction, the parties arrived at a settlement. As all the parties to the suit are not present in person, the learned counsel for the respective parties agree to make their statements on behalf of the parties they are representing regarding terms of settlement so arrived at. Let the statements of counsel for the parties be recorded. Order In view of the statements of the parties counsel recorded separately, the defendants 1 to 6 shall be entitled to perform Pooja and realise offerings and Tehbazari etc. during the on-going Shashmahi Bari of the year 2001 to the exclusion of plaintiffs and defendants 7 to 18. The plaintiffs and defendants 7 to 18 shall be entitled to avail of Shashmahi Bari occurring in the year 2009 Jointly according to their respective shares to the exclusion of defendants 1 to. 6. The extent of shares of plaintiffs and defendants 7 to 18 out of their joint share of six pies shall be as indicated in para 5 of the plaint: 18:32 Plaintiffs 1 to 4 3/6 Defendants 7 to 11 1/9 Defendants 12 & 13 1/9 Defendants 14 & 15 1/6 Defendants 16 to 10 1/9 This pattern of Shashmahi Bari in future shall continue to be availed by Defendants 1 to 6 on one hand, and the plaintiffs and defendants 7 to 10 on the other alternately after a period of every eights years. The amounts of bids pertaining to past Shashmahi Baries, deposited under the orders of various courts from time to time, shall be clubbed and apportioned to the defendants 1 to 6 to the extent of one half share and the balance one half, to the plaintiffs and defendants 7 to 18 as per their shares indicated above. The parties shall be bound by the statements made on their behalf. The statement made on behalf of the defendants 12 to 10 shall, however, be without prejudice to their rights and contentions in Suit No. 74/01 and FAO 486/01 or in other pending matter filed on their behalf before this Court. The suit and the application stand disposed of in the aforesaid terms.”

16. Subsequent to the aforesaid final order dated 22nd October, 2001, which was passed in respect of the ‘Shashmahi baari’, it is stated that the auction continued to be held in respect of the ‘monthly baari’.

17. The amount which was deposited by the parties in CS 303/1997 pursuant to order dated 10th October, 1997 is the subject matter of the present application I.A. 6019/2022 in CS(OS) 588/2021. 18:32

18. The broad two groups in ‘Thulla Tansukh’ in present suit are as follows: S.No Defendants Group

1. Plaintiff No.1- Shri Radhey Shyam, Plaintiff No. 2 -Shri Har Dutt, Plaintiff No. 3- Shri Shiv Dutt, Plaintiff No. 4 -Shri Ravi Dutt Defendant No. 1- Sh. Salig Ram Defendant No.2- Smt. Sunehri Devi Defendant No. 3- Master Vikash Defendant No. 5- Smt. Kanta Devi Defendant No. 7- Sh. ParmaNand Defendant No. 8- Sh. Bhagwat Dayal Defendant No. 9- Sh. Kripa Ram Defendant No. 10- Sh. Durga prasad Defendant No. 11- Sh. Hukam Chand group 1

2. Defendant No. 12- Smt. Hira Devi Defendant No. 13- Sh. Satya Dev Defendant No. 14- Smt. Usha Rani Defendant No. 15- Master Sonal group 2 Between the two groups i.e., group 1 and group 2, the division of the share of the ‘Shashmahi baari’ is 50%. After the order recording the settlement terms between the parties, which was passed on 22nd October, 2001, the procedure that has been followed by these two groups are as under: (a) Shashmahi baari - Each group performs exclusively every eight years alternatively. (b) Monthly baari- It is performed exclusively every three years alternatively between the two groups.

19. After 2001, therefore, there is broadly no dispute between the parties regarding any of the three baaris. The only outstanding dispute is in respect 18:32 of the 1997 baari where money is lying deposited before this Court.

20. As noted above, in order to obtain clarity with regard to the baari in the year 1997, this Court vide order dated 1st May, 2024 had directed as under: “7. The parties shall also file an affidavit each before the next date of hearing, explaining the following:

(i) Who are the baridars in the shashmahi bari?

(ii) Who are the baridars in monthly bari?

(iii) When do the Applicants perform their monthly bari since 2001?

(iv) When do the Non-applicant/Defendants perform their bari since 2001?”

21. Pursuant thereto, affidavits have been filed by both the groups. In the affidavit filed by the group 1 i.e., the group to which the present Applicant belongs, it has been clearly stated as under: “…(b) With respect to the query in para 7(ii) of the order dated 01.05.2024, the Baridars in Monthly bari are the same as mentioned above in answer to query raised in paragraph 7(i).

(c) With respect to the query in para 7(iii) of the order dated 01.05.2024, the details of monthly bari performed by the Applicant since 2001 was in the years 2002, 2008, 2012,2015,2019,2022. 2007 was the year of Laundh Bari which was performed jointly by all…”

22. Further, in the affidavit filed by group 2, it has been stated as under:

18:32 06.01.2001 passed in Suit No.868/2000 passed by Sh. G.P. Singh, Ld. Civil Judge, Delhi qua the monthly bari of 2000; (ii) order dated 31.01.2004 passed in Suit No.21/2004 passed by Sh. Devender Kumar, Ld. Civil Judge, Delhi qua the monthly bari of 2004; (iii) Order dated 23.08.2023 passed in CS(OS) No.531/2021 passed by this Hon'ble Court qua the monthly bari of 2023 wherein this Hon'ble Court took note of order dated order dated 17.07.2007 passed in FAO No.261/2007, order dated 07.09.2010 and order dated 10.02.2017. True copy of order dated 31.01.2004 passed in Suit No.21/2004 by Sh. Devender Kumar, Ld. Civil Judge, Delhi is annexed herewith and marked as Annexure D-1. True copy of Order dated 23.08.2023 passed in CS(OS) No.531/2021 is annexed herewith and marked as Annexure D-2.”

23. It is seen from the above, that the exclusive monthly baari of group 2 fell in the year 2000. The question, therefore, arises as to who is entitled to the amounts collected in the baari of 1997 or is to be divided equally between the said two groups.

24. The submission of Mr. Kamal Mehta, ld. Counsel for the Applicant – Shri Durga Prasad, is that the principle qua division of the baari vide order dated 22nd October, 2001, that has been followed for the ‘Shashmahi baari’, must also be applicable for the ‘monthly baaris’. Thus, it is argued that the same ought to be applied for the 1997 baari as well i.e., the Applicant group would be entitled to the respective share as per the divisions mentioned above. However, he submits that since there have been disputes in respect of amount deposited pending for so long and the only issue is with respect to one ‘monthly baari’, the said amount may be divided between the two groups equally. Further, the respective proportionate amount be released to 18:32 the Applicant herein.

25. On the other hand, Mr. Thakur, ld. Counsel for Respondents, submits that the order dated 22nd October, 2001 relates only to the ‘Shashmahi baari’ and as per the decree dated 11th September, 1980, the 1997 baari belongs exclusively to the group 2.

26. The Court is of the view that the position taken by the non-applicants i.e., group 2, would not be correct in view of the aforesaid affidavits which have been filed before the Court, which show that the ‘monthly baari’ in the year 2000 was performed by group 2. If the principle of alternate baaris exclusively, is applied, then the baari in the year 1997 would exclusively be of the Applicant group. Mr. Thakur, ld. Counsel, has tried to impress upon the Court to calculate the years of the baaris by refering to earlier orders passed by the ld. Trial Courts in respective suits.

27. In the opinion of this Court, since the entire issue is of one disputed monthly baari, both the groups ought to be entitled to 50% each of the amount deposited pursuant to the directions passed by the ld. District Court in order dated 10th October, 1997 and the matter deserves to be given a quietus.

28. The parties have reconciled now to the fact that after the order passed on 22nd October, 2001, they are following the pattern as per settlement recorded in the said order i.e., ‘Shashmahi baari’ shall be performed once in every eight years exclusively and alternatively between group 1 and group 2. Further, the ‘monthly baari’ shall be performed once in three years exclusively alternating between group 1 and group 2. The parties have been following this practice for the last two decades.

29. The practice which is being followed since 2001 ought to be now the 18:32 final practice to be continued between the parties in order to avoid multiplicity of disputes.

30. For the last 23 years, a practice which has been followed, therefore, is not required to be disturbed in any manner at the behest of one party who wishes to exclusively take away the entire money relating to the 1997 baari. Therefore, in the larger scheme of things, this Court is of the opinion that the amount of the 1997 baari ought to be divided between the two groupsgroup 1 and group 2, equally. Accordingly, it is directed that the amounts be released in favour of the Applicant as per his respective share.

31. In view of the above, it is directed that the principal amount of Rs. 29.[5] lacs, along with the interest accrued thereto, which is lying deposited with the worthy Registrar General, would be liable to be divided in the following manner in terms of order dated 22th October 2001: S.No Parties in the present CS NO. 303/1997 Corresponding Parties in CS No. 2134/2001 Division i. a. Plaintiff Nos. 1 to 4 a. Defendant Nos. 7-11 50% (group 1) b. Defendant No. 1 & (1 person not party to the suit) b. Defendant Nos. 12-13 c. Defendant Nos. 2 - 3 c. Defendant Nos. 14-15 d. Defendant Nos. 4- 5 & (1 person not party to suit) d. Defendant Nos. 16-18 e. Defendant Nos. 8 to 11 e. Plaintiff Nos. 1-4 ii. Defendant Nos. 12 to 15 & (2 persons not party to this suit) Defendant Nos. 1-6 50% (group 2)

32. The further subdivision of the shares amongst the parties in group 1 above, shall be as follows: S.No Parties in the present CS NO. 303/1997 Corresponding Parties in CS No. 2134/2001 Division a. Plaintiff Nos. 1- Shri Radhey Defendant No. 7 11.11% 18:32 Shyam, Plaintiff No. 2- Shri Har Dutt Defendant No. 8 Plaintiff No. 3 – Shri Shiv Dutt Defendant No. 9 Plaintiff No. 4- Shri Ravi Dutt Defendant No. 10 b. Defendant No.1 – Saligram Defendant No. 12 11.11% Not-party: Master Khem Chand Defendant No. 13 c. Defendant No. 2 - Sunehri Devi Defendant No. 14 16.67% Defendant No. 3- Master Vikas Defendant No. 15 d. Defendant No. 5 – Kanta Devi Defendant No. 16 11.11% Defendant No. 7 – Permanand Defendant No. 18 Not Party: Purushottam Defendant No. 17 e. Defendant Nos. 8: Bhagwat Dayal Plaintiff No. 4 50% Defendant No. 9: Kripa Ram Plaintiff No. 1 Defendant No. 10: Durga Prasad Plaintiff 2 Defendant No. 11: Hukum Chand Plaintiff 3

33. The Applicant- Shri Durga Prasad would, therefore, would be entitled to 1/4th share due to his sub-group i.e., between Defendant Nos. 8 to 11, as mentioned above. The principal amount deposited was Rs. 29,50,000/-. The Applicant is, therefore, entitled to a sum of Rs. 1,84,375/- out of the said principal amount, along with proportionate interest accrued thereto, since the date of deposit till date of release in his favour (minus TDS on the interest component). The remaining amount may continue to remain in the FDR for a period of three years in an interest bearing fixed deposit.

34. If any of the other parties wish to seek release of their respective amounts, they are free to approach the Court by way of an application.

35. The present application is disposed of in above terms.

36. In the suit CS 303/1997 renumbered as CS(OS) 588/2021, the prayer 18:32 which was sought was for permanent injunction in the following terms:- “In view of the facts and circumstances explained herein above, it is most respectfully prayed that this Hon'ble Court may be pleased to pass a decree of permanent injunction in favour of the plaintiffs and against the defendants thereby restraining the defendants from interfering in the 4/3 share of the plaintiff in the incoming bari starting from mid- night of 11.10.97 to 10.11.97 for the month of Kartik in Mandir Kalkaji for performance of puja and seva and realisation of teh-bazari or in the alternative the aforesaid bari be auctioned inter-se between the plaintiffs and defendant No.1 to 11 and highest bidder be allowed to perform puja and seva after distributing the due share of the parties in the present suit as per Annexure 'A'. Cost of the suit may also be awarded in favour of the plaintiffs. Any other or further relief as this Hon'ble Court may deem fit and proper in the facts and circumstances of the case may also be granted in favour of the plaintiffs and against the defendants. It is prayed accordingly.”

37. This suit as recorded above was adjourned sine die in the year 2001 awaiting orders in other pending litigations between the parties. As recorded hereinabove, in the connected suit between the same group of ‘Thulla Tansukh’, the parties had finally agreed to settle the dispute with regard to ‘Shashmahi Baari’ in the following terms which was recorded by the Court vide order dated 22nd October, 2001:- “IA 9699/01 (u/o 39 R 1 & 2 CPC) & S.No. 2134/01 In the course of hearing on the application for temporary injunction, the parties arrived at a settlement. As all the parties to the suit are not present in person, the learned counsel for the respective parties 18:32 agree to make their statements on behalf of the parties they are representing regarding terms of settlement so arrived at. Let the statements of counsel for the parties be recorded. Order In view of the statements of the parties counsel recorded separately, the defendants 1 to 6 shall be entitled to perform Pooja and realise offerings and. Tehbazari etc. during the on-going Shashmahi Bari of the year 2001 to the exclusion of plaintiffs and defendants 7 to 18. The plaintiffs and defendants 7 to 18 shall be entitled to avail of Shashmahi Bari occurring in the year 2009 Jointly according to their respective shares to the exclusion of defendants 1 to.

6. The extent of shares of plaintiffs and defendants 7 to 18 out of their joint share of six pies shall be as indicated in para 5 of the plaint: Plaintiffs 1 to 4 3/6 Defendants 7 to 11 1/9 Defendants 12 & 13 1/9 Defendants 14 & 15 1/6 Defendants 16 to 10 1/9 This pattern of Shashmahi Bari in future shall continue to be availed by Defendants 1 to 6 on one hand, and the plaintiffs and defendants 7 to 10 on the other alternately after a period of every eights years. The amounts of bids pertaining to past Shashmahi Baries, deposited under the orders of various courts from time to time, shall be clubbed and apportioned to the defendants 1 to 6 to the extent of one half share and the balance one half, to the plaintiffs and defendants 7 to 18 as per their shares indicated above. The parties shall be bound by the statements made on their behalf. The statement made on behalf of the defendants 12 to 10 shall, however, be without prejudice to their rights and contentions in Suit NO. 74/01 and FAO 486/01 or in other pending matter filed on their behalf before this Court. The suit and the application stand disposed of in the aforesaid terms.” 18:32

38. Insofar as the ‘monthly baari’ is concerned, as recorded above, the parties have since 2001 performed Pooja Seva alternatively between the two groups every three years. The two groups are as follows: S.No Defendants Group

1. Plaintiff No.1- Shri Radhey Shyam, Plaintiff No. 2 -Shri Har Dutt, Plaintiff No. 3- Shri Shiv Dutt, Plaintiff No. 4 -Shri Ravi Dutt Defendant No. 1- Sh. Salig Ram Defendant No.2- Smt. Sunehri Devi Defendant No. 3- Master Vikash Defendant No. 5- Smt. Kanta Devi Defendant No. 7- Sh. ParmaNand Defendant No. 8- Sh. Bhagwat Dayal Defendant No. 9- Sh. Kripa Ram Defendant No. 10- Sh. Durga prasad Defendant No. 11- Sh. Hukam Chand group 1

2. Defendant No. 12- Smt. Hira Devi Defendant No. 13- Sh. Satya Dev Defendant No. 14- Smt. Usha Rani Defendant No. 15- Master Sonal group 2

39. In view of the fact that for the last 23 years, the parties have already followed a particular procedure for performing of the ‘Shashmahi baari’ and the ‘monthly baaris’, this original suit is also decreed in the following terms:- “Group 1 and Group 2 as set out above shall be entitled to perform their monthly baris every three years exclusively without any interference from members of the other group.” 18:32

40. Decree sheet be drawn. Suit is disposed of with all pending applications, if any, in above terms.

PRATHIBA M. SINGH JUDGE OCTOBER 19, 2024 dj/mr/bh (corrected and released on 29th October, 2024) 18:32