Court No. - 59
Case :- CONTEMPT APPLICATION (CIVIL) No. - 823 of 2018 Applicant :- Swami Ramanand @ Radhey Baba Shishya And 2 Others Opposite Party :- Amar Nath Singh Additional District Judge And 2 Others Counsel for Applicant :- Rajeev Kumar,Man Bahadur Singh
Hon'ble Yashwant Varma,J.
Heard Shri Rajiv Kumar, learned counsel for the applicant and Shri Neeraj Upadhyay, learned Additional Chief Standing Counsel.
In a pending First Appeal From Order, a Division Bench of the Court on 6 August 2013 passed the following order:
“Issue notice pending admission.
Admittedly, the property in dispute originally belonged to one Swami Nityanand Ji. The plaintiff-appellants claim that they have succeeded to the property in question after death of Swami Nityanand Ji. It is not disputed that the contesting defendants are also claiming to be disciples of Swami Nityanand Ji. Therefore, the plaintiff-appellants instituted Original Suit No. 110 of 2012 (Swami Ramanand and others Vs. Vicharanand and others) for permanent injunction restraining the defendants from interfering in the peaceful possession of the plaintiff-appellants over the property in dispute. It was accompanied with an application for grant of temporary injunction.
The court below after hearing learned counsel for the parties at some length, has dismissed the application. Hence, the present appeal.
Sri Rahul Sahai, learned counsel for the appellants submits that in any case, defendant no. 1 who has set up a Will cannot succeed to the property in dispute as it has been found by the trial court that he has committed murder of Swami Nityanand Ji. Reliance has been placed on Section 25 of the Hindu Succession Act.
The trial court has found that the plaintiffs are not in possession over the property in dispute. The trial court has also found that, prima facie, there is no material on record to suggest the title of the plaintiffs over the property in dispute. Also there is no finding that the allegation that the contesting defendant has been convicted for murder of Swami Nityanand Ji is incorrect.
After hearing learned counsel for the appellants at some length, we are of the prima facie opinion that neither the plaintiffs nor the defendants have any right to the property in dispute.
In view of the fact that both the parties are claiming right over the property in dispute which belonged to one Swami Nityanand Ji, in the absence of any entitlement of the plaintiffs or defendants, the property in dispute shall vest in State.
We, therefore, direct the plaintiffs to implead State of U.P. through Collector, Mathura as one of the defendants in the suit. The Collector, Mathura shall take administration of the property in dispute. Administrator General may also examine the case and take care of the property in dispute. It is further provided that the plaintiffs shall not be entitled to withdraw the suit. In case, such an application is filed, State of U.P. will be transposed as plaintiff in the suit.
The District Judge is required to withdraw the plaint from the present court and may assign the same to court of competent jurisdiction preferably any additional District Judge.
It is further provided that neither of the parties shall alienate or transfer the property in dispute, if any sale deed has been executed or is executed by any defendant, the said sale deed shall be subject to the final order passed by this Court.
It has been argued by learned counsel for the appellants that the appellants are in possession over the property in dispute and till further orders their possession may not be disturbed. Learned counsel for the appellants also showed his willingness to deposit damages as a condition precedent for grant of any interim relief.
Taking into consideration the facts and circumstances of the case, it is provided that the plaintiff-appellants shall deposit damages @ 5,000/- per month before the court below. On making the deposit, the possession of the plaintiffs over the property in dispute shall not be disturbed till further orders.
The first deposit shall be made on or before 7th September, 2013. The plaintiffs shall continue to deposit the damages of the like amount for the subsequent months by 7th of each succeeding month. In case of default, the stay order granted by this Court shall stand vacated. The final order with regard to disbursement of amount shall be passed later on.
List in the month of September, 2013.” (emphasis supplied) As is evident from a reading of the said order, a dispute appears to have been arisen between the applicants who are plaintiffs in a suit and the defendants therein as to who would have the right to manage and administer the property of one Swami Nityanand Ji.
The Division Bench noticed that the trial Court found the plaintiffs were not in possession. It then proceeded to observe that since both parties are claiming a right over the property in dispute, the property shall during the interregnum vest in the State. It accordingly framed a direction requiring the Collector, Mathura to be impleaded in the suit and for him to "take administration of the property in dispute". A further direction was thereafter framed dealing with the contention of the applicants that they were in possession over the property in dispute and their prayer that their possession be not disturbed. The Court in view of the submission advanced provided that subject to the applicants paying damages @ Rs.5,000/- per month, their possession over the property in dispute shall not be disturbed till further orders.
The underlying and latent conflict which appears to arise from the directions issued is that while the Collector has been commanded to take over administration of the property in dispute, on the other hand the applicants are not to be dispossessed subject to they continuing to pay damages @ Rs.5,000/- per month.
The Court also notes that the issue of how the directions issued by the Court in the FAFO were to be implemented was also agitated before the Additional District Judge. The Additional District Judge, noticing the submission of the Collector as well as the plaintiff went on to observe that the State Government acting through the Collector would take over administration and that subject to deposit of Rs.5,000/- per month rights of the applicants for retention of the property shall not be disturbed.
This petition itself is based on an allegation that on 3 January 2018, the opposite parties dispossessed the applicants except for their occupation of the residential premises. It is also alleged that the Mandir premises itself have been locked.
It therefore falls upon this Court to consider whether the assertions made in paragraph 22 of the affidavit filed in support of this application would constitute a deliberate or willful disobedience. The Court bearing in mind the nature of the directions issued finds itself unable to hold the opposite parties in contempt.
The Court takes into consideration the fact that the Collector, Mathura was commanded to take over administration of the property in dispute. This direction as framed by the Division Bench in the FAFO is evidently and clearly not restricted to a mere “administration” but extends to “administration of the property” in dispute. The take over of the property would therefore form an essential element and action towards administration of the same. The Collector, Mathura is admittedly enjoined to administer the property and ensure its management and administration in terms of the directions issued in the FAFO. This he cannot possibly achieve without a take over of possession. The only protection that operates in favour of the applicants is their possession over the part of the property which is occupied by them. This, the Division Bench, has secured by providing that their possession shall not be disturbed subject to payment of Rs.5,000/- per month as damages. As admitted by the applicants themselves they continue to occupy the residential premises in their possession. All that the Collector has done is to take over the possession of the property to ensure its administration in light of the orders passed by the Division Bench.
There, therefore, does exist an apparent difficulty in adhering to the directions issued. Both the directions, in the absence of any further clarification, must be read and implemented in a harmonious manner.
The opposite party is clearly obligated to implement the directions in their entirety. His action in taking over possession for the purposes of administration and at the same time preserving the possession of the applicants over the residential portion, appears to be a bona fide and holistic implementation of the directions issued by this Court. This Court therefore finds itself unable to hold that the opposite parties are in contempt or that there has been a willful and deliberate disobedience.
Accordingly and for all the reasons noted above, this petition is dismissed.
Order Date: - 23 February 2018 ( Yashwant Varma, J.) nethra