KACHA KANTI SEVA SAMITY AND ANR. versus SHRI KACHA KANTI DEVI AND OS.

Citation: [2003] 3 S.C.R. 99 · Decided: 28-03-2003 · Supreme Court of India · Bench: S. RAJENDRA BABU · Disposal: Case Partly allowed

Judgment (excerpt)

, 
KACHA KANTI SEVA SAMJTY AND ANR. 
A 
v. 
SHRI KACHA KANTI DEVI AND OS. 
MARCH 28, 2003 
[S. RAJENDRA BABU AND DR. AR. LAKSHMANAN, JJ.] 
B 
Religious endowment: 
Right to shebaitshir,Formalion of Samity in respect of temple-No 
appointment of shebait-Suil for declaration claiming right lo shebailship in C 
temple-Held: Claimants as de facto shebail, having proved their possession 
of the endowed properly and exercised all fimc/ion of shebait, have right of 
shebaitship in temple-Also on the basis of the evidence adduced presumption 
available to them-However, general public including Samity will have free 
access lo temple to offer worship and for other religious and spritual activities D 
. as all constructions of buildings, tanks, well and electrification were done by 
public by receiving donations from various persons-Presumption-Evidence 
Act, 1872 Section 90. 
Appellant No.1-Samity was formed in respect of the temple in 
question. No person was appointed as shebait by the authority. 
Respondents filed suit for declarations that deity installed in the temple 
in question having been gifted to their forefathers 200 years ago by the 
then king, they are the shebaits of the deity and that the appellants have 
E 
no right to form appellant No.1-Samity and interfere with their right of 
shebaitship. Trial Court dismissed the suit as there was nothing to show p 
that the deity was established by King or that respondent's forefather was 
appointed as a shebait and that the deity and its temple Were public 
endowments. Respondents filed an appeal which was allowed. Aggrieved 
appellants filed second appeal and High Court dismissed the same. Hence 
the present appeal. Appellant-Samity contended that both the Appellate 
Court and the High Court have committed a grievous error in interfering G 
with the judgment of the trial Court; that the respondent's claim of the 
shebaitship of the deity is quite unknown and that it is in evidence that 
the public in general are offering seva/puja to the deity since its inception 
and there is absolutely no evidence to show that the public offered the puja 
99 
H 
100 
SUPREME COURT REPORTS 
[2003] 3 S.C.R. 
A with the permission of the respondents; and that the evidence adduced 
shows that the D11rga Mandap and a Chowkidar Shed, a charitable 
dispensary and an office building have been constructed by the appellants 
by the donations of the public within the compound of the temple of the 
deity and, therefore, the respondents have no manner of right of 
B ~hebaitship to the temple. 
Respondents contended that th1: findings rendered by the lower 
Appellate Court and also by the High Court are unassailable and that the 
respondents have proved beyond any doubt that they were in enjoyment 
of the right of shebaitship for a considerable period of time undisturbed 
C and to the exclusion of all other claimants. 
Partly allowing the appeal, the Court 
HELD: I. The respondents as de facto shebaits, have proved their 
possession of the endowed property and exercised all functions ofa shebait-
D offering their services and pujas though, the legal title to property is 
lacking. Therefore, the respondents have the right to shebaitship of the 
suit temple. Under no circumstances they can be held as trespassers. 
1105-B, F, GI 
2.1. It is difficult to lay down any test or tests, which may be of 
E universal application with regard to tht~ question as to whether a religious 
endowment is of a private nature or of a1 public nature. It has to be decided 
with reference to the facts proved in each case. In the context of 
respondents' right to shebaitship, they have produced two ancient 
documents from proper custody which were admitted in evidence. The 
originals of these documents were also seen by the Appellate Court. The 
F documents show that the name of 'S' appears to be there and that these 
are appointment letters showing the appointment of 'S' in the post of 
Deshmukhya with some magisterial powers by the King. 1104-B-DI 
1.2. The presumption under Section 90 of the Evidence Act was also 
available to the respondents. It is proved in evidence that the right claimed 
G by the respondents to shebaitship is in exclusion to all others. The 
respondents have adduced oral evidenc:e of witnesses who are the persons 
from different walks of life residing in the locality where appellant No. I 
is established. They have categorically stated that since the time of their 
maturity they have seen the pres

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