WRITTEN STATEMENT FILED IN T.S. No.50 of 2012 in the 10th COURT OF C.J.(Sr.Dn.), ALIPORE.
DISTRICT: SOUTH 24-PARGANAS
IN THE COURT OF THE LEARNED 10TH CIVIL JUDGE (Sr.Dn.), ALIPORE
TITLE SUIT No.13873 of 2012.
HAPPY PLAZA PRIVATE LTD…………………………………...PLAINTIFF
1. Sri Guru Singh Sabha Calcutta.
2. Mr Inderjit Singh s/o Late Gurdyal Singh, 1/68 Justice Dwarka Nath Road, Kolkata-700020 aged about 51 years and as ex-General Secretary for only self and not on behalf of all the members interested in Sri Guru Granth Sahib and Garcha Gurdwara Singh Sangat, Kolkata-700026.
WRITTEN STATEMENT ON BEHALF OF DEFENDANT NO. 2
The Defendant No.2 aforesaid humbly states:
1. That this Defendant (Mr. Inderjit Singh ) is a r/o India and professing Sikh religion, but ceased to be the General Secretary of the Sri Guru Singh Sabha long ago and is therefore now no longer represents the interests of the General Secretary of the Sri Guru Singh Sabha and therefore, does neither have any say or authority in the matter of Sri Guru Singh Sabha or Sri Guru Grantha Sahib as depicted in the plaint filed by the plaintiff except as a member of the General Public interested in the welfare of the Religious Rights of the Sikh Community.
2. That the suit is bad for misjoinder of Parties and or for non joinder of essential parties.
3. That the suit is bad for non joinder of essential parties as the entire properties belong to our living Guru Shri Guru Granth Sahib established at Garcha who has not been made a party to the Suit. As Shri Guru Granth Saheb at Garcha Gurudwara to whom the Suit Property belongs is a Juristic person in the light of the Ruling of Hon’ble SC in SHRIOMANI GURUDWARA PRABANDHAK COMMITTEE, AMRITSAR Vs. SHRI SOM NATH DASS & ORS decided on 29/03/2000 delivered by a SC BENCH consisting of Justices A.P. Misra, M. Jagannadha .
4. That the suit is hopelessly barred by limitation.
5. That the suit is barred u/Sec.34 of the Specific Relief Act.
6. That the suit is not maintainable in its present form and prayer.
7. That this defendant denies that the plaintiff acquired any right, title or interest by virtue of any fraudulent deeds of Conveyance dated 15th December, 2007 and 8th January, 2008 for the simple reason that the Original Owner of the Suit properties, namely late Madan Gopal and late Ram Gopal both sons of late Nana Singh, and who inherited the Suit Properties long long ago gifted Garcha Gardens of which the Suit Property is merely a part to Shri Guru Granth Saheb at Garcha in the year 1909. After such gift, Ram Gopal Singh, till his death in the year 1928 remained the president or Chairman of the Society, then known as Sri Guru Singha Sabha, Ballygunge and now the Management of the Gurdwarya is in the Hands of Sri Guru Singha Sabha, Calcutta and therefore, subsequent to such verbal gift, neither Hiru Singh (now deceased) and s/o late Ram Gopal Singh nor his brother Shyamlal Singh subsequent to such Transfer of gift had any right, title or interest in the Suit Properties. The defendants developed the suit properties which included getting two tanks filled up in the Suit Property subsequent to such Dedication as mentioned above.
8. The Suit Properties, having already been transferred to the living Guru Sri Guru Grantha Saheb at Garcha (hereinaftaer called SGGS) as early as 1909, the same could never become the subject matter of any Partition Suit between the Partners nor any decree passed in any such Title Suit between the Co-parceners to which the real owner, Shri Guru Grantha Saheb established at Garcha was not made a party can be binding on any of these Defendants nor upon the actual owner of the property SGGS.
9. That late Hiru Singh, in his written statement as well as in an affidavit filed before the Hon’ble High Court stated that he had created a Trust by executing Trust Deed dated 30.03.36 appointing Annapurna Devi as a Shebait followed by a Rectification Deed dt. 29.1.43 executed by him. If this be true, no title can ever pass on to the plaintiff as after creation of the Trust for religious purpose involving the Suit Property, such property ceased to be a part of the Joint Family Property and therefore, could not become a part of the common hotch potch of the H.J.F.P or the subject matter of any partition suit between the members of any such Hindu Joint Family. Therefore, even if the verbal gift of the suit property be not proved, yet the on account of the Trust being so created, any successor claiming through Hiru or his brother Shyamlal, can not acquire any title in the Suit property.
10. That Hiru Singh in his Affidavit dated 25-06-55 filed before the Hon’ble High Court in Suit No. 94 of 1930 stated,
“2. Before dealing with the allegations made in the said petition, I submit that this application is not maintainable without making Smt. Annapurna Bibi a party who is the Trustee and Shebait of Sree Sree Radha Gobinda Jew and Sri Sri Guru Grantha Shahab Jew installed at No.22, Garcha Second Lane, Calcutta. In as much as by executing a Deed of Trust on the 30th day of March, 1936 I dedicated to them my entire half share of the said Garcha properties amongst others and appointed the said Annapurna Bibi as Shebait of the said deity.”
11. This was done by late Hiru Singh fraudulently, to create fraudulent documents of Title firstly by Creating a fraudulently and secretly a Trust in respect of a property in respect whereof he inherited no right ,Title or any interest as the same was long before alienated by way of Dedication of the Suit Property by way of a verbal gift his father and uncle accompanied with immediate possession in favour of the Sri Guru Grantha Saheb in the year 1909.
12. The malafide nature of the said Hiru Singh can be gauzed from the fact that while he apparently, created a Trust in favour of the Sree Guru Grantha Saheb on 30-03-1936 with a malicious motive, he in February, 1943 enterred the premises of the Gurudwara along with other persons and after they left, S. Narayan Singh, the then President of the Sri Guru Singh Sabha found that one marble sign board of 2 square feet engraved in two languages i.e. Gurmukhi and Bengali with the name of the Gurudwara and the year of establishment 1909, one bucket, Rs.200 in cash by breaking open a suit-case, one pair of warm suit of Granthi’s wife, two shawls was taken away by him. As a result, the then President reported the incident to the Officer-in-Charge, Ballygunge P.S. on 10-02-1943. Thereafter, the Police on 11-02-1943 recovered the said marble stone and handed over the same to the then President against a bond of Rs.200/- to produce the same before the Court when required. This theft was conducted to wipe out the evidence that the Defendant No.1 was in possession of the Suit premises since 1909 as depicted in the Marble Stone and with a view to grab the land that his father and uncle had dedicated to the deity Sri Guru Granth Saheb.
13. That after this several fraudulent and collusive cases were filed and or documents were executed between the other heirs of Madan Gopal Singh and Ram Gopal Singh and their relatives fraudulently and collusively to create Title where none existed. None of these cases were contested and almost all of them ended in a Collusive compromises with the sole object of creating title in respect of a property which could not ever been the subject matter of any partition Suit on account of its alienation long before filing of such partition suits.
14. That the first clause of the compromise petition filed in T.S. No.94 of 1930 and on the basis whereof a preliminary decree on consent after compromise was passed reads, “Hiru Singh in his Affidavit dated 25-06-55 filed in Suit No. 94 of 1930 stated, “2. Before dealing with the allegations made in the said petition, I submit that this application is not maintainable without making Smt. Annapurna Bibi a party who is the Trustee and Shebait of Sree Sree Radha Gobinda Jew and Sri Sri Guru Grantha Shahab Jew installed at No.22, Garcha Second Lane, Calcutta. In as much as by executing a Deed of Trust on the 30th day of March, 1936 I dedicated to them my entire half share of the said Garcha properties amongst others and appointed the said Annapurna Bibi as Shebait of the said deity.”
15. Thereafter, in the said T.S. No.94 of 1930, the said Hiru Singh and other parties to the said suit, succeeded in obtaining a collusive preliminary decree on consent by misleading the Court on the basis of an illegal agreement arrived at between the parties whereby the said Trust was first created by Hiru Singh and then was got dissolved and the Trust Deed got cancelled. This is not permissible in the eye of law as any property which is already transferred and or endowed or alienated either by way of gift and or by creation of a Trust, can not be the subject matter of any Joint Family property and as such any such preliminary decree obtained by misleading the Hon’ble Court can not confer any title in favour of any of the parties to the Partition Suit and therefore, no right, title and interest in respect of the Suit Property can thereafter, be conveyed in favour of any person by way of any sale deed /indenture or by virtue of any preliminary decree obtained in violation of the law of the land any such indenture. Hon’ble SC in the Ruling cited in para 3 above observed, “Further, this property was given in trust to the ancestors of respondents for a specified purpose but they did not perform their obligation. It is also settled, once an endowment, it never reverts even to the donor. Then no part of these rights could be claimed or usurped by the respondents ancestors who in fact were trustees. Hence for these reasons and for the reasons recorded by Mr. Justice Tiwana, even on merits, any claim to the disputed land by the respondents has no merit. Thus any, claim over this disputed property by the respondents fails and is hereby rejected.” As a result neither Hiru Singh nor his brother Shyam Lal nor their successor Ganeshi Devi the widow of Shyam Lal nor Surjee Devi in whose favour the latter executed an indenture ever acquire any title in the Suit Property which was already transferred by ther predecessors-in-interest long before execution of any sale deed or indenture by Surjee Devi. Hon’ble Justice Masud, in his order dated 20-09-1968 passed in T.S. No.94 of 1930 rightly observed that there can not be any question of Res Judicata against the Defendants as the Trial Court as well as the Appellate Court kept this matter open to be decided in future by a competent Court of law.
16. It is the well settled law of the land that the Courts merely declare a title in favour of a party where any such title actually exists. The Courts can neither create a title where no such title exists nor can any Court extinguish or take away any right , title or any other interest where any such right title and interest exists in favour of any party. Besides, once a Trust is created in favour of any Religious deity, the same as per the law of the land can never be cancelled nor dissolved particularly without making the beneficiary id the Trust deed ( in this case SGGS) a party to such a Suit.
17. Therefore, it follows that the Plaintiff can never acquire any right, title and interest in the Suit party by virtue of any indenture or deeds created in its favour by any of the Representative in interest of the said Hiru Singh in view of the facts and circumstances explained above.
18. In view of the facts and circumstances explained above, it is denied that the plaintiff acquired any right title or interest in the Suit Property as stated in Para 2 of the plaint as neither Surji Devi nor her successors-in-interest i.e. Nadakishore Saraf & ors. had any right, title or interest to transfer the suit property in favour of the Plaintiff as no body can transfer an interest better than one has in any property.
19. It is true that SGGS through Defendant No.1 is in possession of the Suit Property since the year 1909 onwards and it is denied that the defendants and or several other persons tress-passed on the Suit Property as claimed in para 3 of the plaint.
20. This defendant is not aware of the facts stated in Para 5 and 6 of the plaint and the Hon’ble Court should put the plaintiff to a strict proof thereof. However, in case of a bonafide prayer of intervention made by the Sri Guru Singh Sabha was rejected as stated in para 6 of the plaint, it makes it abundantly clear that the Defendants who were not allowed to be a party to the proceedings in T.S. No.94 of 1930 can not be bound by any Preliminary Decree passed in the said case. Any such Preliminary Decree to which the Defendants were not a party is neither binding upon the Defendants nor it can the same be enforced against them.
21. This defendant is not aware of the facts stated in para 7 of the plaint. The plaintiff may be put to the strict proof of the same. But a wrong decision by any Court against the Defendants in the eye of law in view of the irrefutable and unimpeachable facts stated above, can not confer any right, title or interest in favour of the Plaintiff by default. The plaintiff is required to prove his Title both in fact as well as in law failing which, a mere default on the part of Defendants to take appropriate steps in the past, can not confer or create any right title or interest in his favour.
22. So far as para 8 of the plaint is concerned, it is admitted that the Defendants are in lawful and uninterrupted possession of the Suit Property since after its Dedication to the Guru Granth Saheb by the original owners late Madan Gopal Singh and his brother Ram Gopal Singh in the year 1909.
23. It is admitted that since after 1909, the Defendants in exercise of their Fundamental Religious Right as guaranteed under the Constitution of India did make some absolutely necessary constructions to properly establish their living Guru Shri Guru Granth Saheb at the Suit Premisis, along with a Nishan Saheb thereon as required to be made to enclose, protect the living Guru, for recital of the GURBANI from the Sri Guru Granth Saheb to the devotees largely belonging to the Sikh community. It is denied that the Defendants are in unauthorized possession of the Suit Premises or that they have no right title or interest in the Suit Property as alleged in para 9,10 and 11 of the plaint.
24. It is denied that the plaintiff has any right to claim any mesne profits from 16th of September,1909 as claimed by the plaintiff in para 13 of the plaint.
25. It is wrong to say that the Defendant No.2 is holding himself to be the Secretary of the Defendant No.1 as alleged in para 14 of the plaint.
26. The facts stated in para 15 of the plaint involves a question of law which the Hon’ble Court is required to decide as per law.
27. It is denied that the valuation of the Suit Property is Rs.10,00,00,000/- as stated in para 16 of the plaint. This amount has been artificially hiked beyond proportion by the plaintiff with ulterior motive and for ulterior gains.
28. It is denied that the cause of action against the defendants arose on 16th day of September, 2009. In fact, the plaintiff, in view of the facts stated in this W.S. have no cause of action to file the Suit.
29. Therefore, this Defendant humbly submits and requests the Hon’ble Court that the Suit be dismissed with exemplary costs in favour of the Defendants as the plaintiff is mischievously by his nefarious activities trying to snatch away the Fundamental Religious, cultural and educational Rights of the Sikh Community guaranteed under Article 25 to 30 of the Constitution of India.
Place: Kolkata Defendant No.2
Dated: 15th day of September, 2015.
I, Inderjit Singh s/o Sri G. Singh aged about 51 years, s/o Late Gurdyal Singh, 1/68 Justice Dwarka Nath Road, Kolkata-700020, Sikh by religion and a businessman by occupation do hereby declare that the statements contained in paragraphs 1 to 28 of the foregoing Written Statement, filed by me are true to my knowledge, information derived from office records and the rest are my humble submissions before this Learned Court.
I sign this verification on this the 15th day of September, 2015 at the Office of the Defendant No.1.
Place: Kolkata (Inderjit Singh)