:iil: :^.';;a; m THE HIGH ©OURTOF JUDICATUREATB1LASPUR (CHHATTISGARH) SECOND J^ APPEALNO. OF 2006 APPm-LANT DEFENDANT ' Dev Kumar Bani, S/o Sahasram Bani, aged About 45 years, Occupation - Mistri (Mechanic), R/o Raigarh Road, LaUunga, District Raigarh (Chhattisgarh) VERSUS RESPQNDENTS PLAINTIFFS ^ Shiv Mandir Lailunga Through its Manager, Nathhulal Singhania, S/o Late Chaturbhuj Singhania, Aged 78 years, Occupation- Business, Cultivator, R/o Village Lailunga, Tahsil Gharghoda, Dist. Raigarh (Chhattisgasrh) Appeal valued at Rs \\S^ Court fee affixed Rs \\<^b SECOND APPEAL UNDER SECTION 100 OF CODE OF CIVIL PROCEDURE ^TIn o o r^no11 a -n + / /I o-fAn /4 o 1-14-—•n.r> t-n "/^—nl-tmm V IVI^EnQif LSiJI '.f 2 Sd/- Dhirendra Mishra Judge Appellant/defendant iev Kumar Bani ^ Present: Shri appei Shri i,shish Shrivastava, ieamed iounsei for the P.Sharma, tearnsd counse! forthe respondent. 2 .08.21 Ihirendra.ftlishfe^ lon ated Heard on i.A.No. 1134/06, appiication fortaking document on record. 2. Appiication is allowed and the document is taken on record. 3. Also heard on admission. 4. The appeilant/defendant has prsferred this second appeal under Secti 100 of the Cocie of Cjvi! Procedure against the judgmeni and decree d; 25.11.2005 passed by II Additional Districi Judge, Raigarh in Civii Appeai No. 26-.A/2004 arising out ofthe judgment and decree dated 28.08.2004 passed ths Civil Judge, Class-1, Raigarh in Civii Suit No.118-^/2002 and by vAi ailoviflhg the appea! preferred by the respo.ndent/piaintiff the learned appeliate Couri: has decreed the suit ofthe plaintiff. 5. Case of the piaintiff is that Shiv Mandir with idol of Shivji is situated over Abadi iand of village - LaiSunga. The temple v/as erected by Chaturbhuj Sjnghania, ancestor of plaintiff NaShhuial,.Sin9hania 'who is manager of the temple, about 75 years back. As per family partition ihe responsibility of management and worshipping came jnto the share of piaintiff Nathhuial Singhania ana' since then he is managing the affairs ofthe temple as manager. ich ini uw1 ll!ll!illrf%SS ^ The expenses tovi/ards repajrs and maintenance ofthe temple and the shops were managed from the income ofthe shops anc! his own income by the piaintiff from time to time and the shops were given on rent to various persons. Previousiy ihe suit shop was given on rent to one Tulsiram and in the year 1962 the same was given on rent to Gopai Singhania. Thereafter in the year 1983 the suit shop was givsn on rent to the defendant and since Shen he is in possession of the same paying rent at the rate of Rs.250/- per month. The defendant did not pay monthiy rent from 01.08.1993 despite severa! ora! requests vrfiereupon a registered iegai notjce dated 25.01.1994 was sent to the defendant and when the defendant did not pav rent even after notice, a suit for recovery of rent of Rs. 2.000/- towards the rent and ejectment v<as filed. During pendency of the suit Patta (lease) of the land over which the suft shop was situated was also allotted by the Government in the name of Manager of the plainiiffi'temple. The defendant in his written statement denied the avermeni ofthe plaint and stated that the plaintiff is not manager ofthe Shiv tempie and he wants to )rab the nearby iand ofthe tempie for the purpose of constructing commercial comptex for himseif as the vacant iand is the Govt. land. It is further aven'ed that on the vacani iand of Shiv temple the plainiiff and father ofthe defendant have constructed shops after encroachment and running their business in ths said shops and afterihe death offather ofthe defendant, the defendant himself is running his business from the suit shop and thus he is in possession ofthe of the suit shop for the iast 30-40 years. The father of the defendant had borrowed money from the plaintiff for construction of the shop and against which he had paid Rs. 250/- for twu years as per oral agreement. The defendant de'hied the tenancy ofthe p.'aintiff. !S was also averred that since he is Jn possession of the suit shop for the last 30-40 years therefore, he is fiiini application for settlemsnt and lease separateiy. !t was a!so pleaded that the defendant has perfected his title on the strength of iong possession of 30-40 years as per doctrine of adverse possession. Rest of the pleadings of the plaintiff that the tempie was constricted by Chaturbhuj Singhania, the temple came into his share as perfamiiy settlement and he is managing the affairs of the temple as manager were denied and it was averred that plaintiff has fraudulentiy obtained lease ofthe Abadi land in his name. 7. On the basis of pleadings ofthe respective parties learned Civil Judge framedissues and after recording statements ofthe v/itnesses dismissed the suit of the plaintiff vide judgment dated 25.2.2000 by recording a finding that Nathhulal Singhania was not authorized to fi!e civi! suit on behalf of Shivji ki IVIurti as manager ofShiv WIandir, Lailunga. The piaintiff preferred civl! appeal 13-A/2000 against the above judgment and the same was allo'iwd bv She ieamed Additionai District Judge vide judgment dated 12.4.2002 and the matter'was remanded to ths {rial court wth a direction to give his findings on ait issues after affording opportunity of hearing to the parties. Thereafter, pleadings vi/ere amended, additiona! documents Vi/ere filed and witnesses were examined by the partiss and the suit Vi/as again dismissed by the trial court vide judgment dated 28.8.2004 by recording a finding inter alia that the piaintiff is not registered titleholder and manager ofthe temple; defendant is the tenant of Shiv Mandir Laiiunga, however, it is not proved that he has not paid rent from 1.8.1993; the defendant has not perfeded the title by adverse possession over the suit house and Singhania is not authorized to file suit on behalf of Shivji idol. 9. However, the appea! prefen-ed by the plaintiff was at impugned judginent setting aside the judgment of the triai court and decreeing the suit ofthe plaintiff. 10. As mentioned above the iearned Civii Judge C!ass-l even v^iile dismissing the suit ofthe piaintiff has recorded a finding that though the plaintiff has proved that he has discharged' the duties of manager of the temple and maintained it, however, there is no evidence on record So showthat the tempie in question is his personal property and-the same is situated in his land or some trust has been constituted for management ofthe temple and since the temple is situated over the Governmen.t lan3, therefore, benefit may r.ot be given to piaintifffor his per&onal interest. 11. While dealing vath issue No. 5 the learned trial Court recorded a findini that the Shivji idol and the shops are not the personal property of the plaintiff ind it is situated in the public place and therefore it shouid be registered as public trust and the public nt large may apply for its registration as public trust to the coi'lector. On the basis of above analysis it has been he!d that the plaintiff was not authorized to file suit on behalf of Shivji idol. Hov«®ver,the triai Court has also held that the defendant is the tenant of Shivji temple and he has not perfecied his titie by adverse possession. Since ths defendant has not preferred any appeal against the judgment and decree ofthe trial Court it is not in dispute that he v/as the tenant of Shiv iemple. 2. ie appea! preferred by the plaintiff has been aiio'wed and ft has been held bythe lower appe!!ate Court bythe impugnedjudgment that shops No. 1 So beiong to Shiv temple and shop No. 5 \va.s given by the plaintiff to the iant on a monthly rent of Rs. 250/- v«tio has not paid the rent ofthe shop i.1993 and since the plaintiff manages the affairs ofthe tempie, he was authorized to file suit on behalf ofthe temple. 13. Learned counse! for the appellant submitted that the suit v/as filed Viith the pteading that Shiv Mandir and the shops are situated over the Abadi !and and the same was being managed and maintained by the ptaintiff out of the fund coliected by way of rent from the shops. However, contrary to the pleadini it is stated by the plaintiff in his deposition that the shops belonged to him though no document/revsnue records or any evidence has been iaid by She piaintiff in support of his contention. It is argued that since the'temple vias situated over the Abadi iand, the State was a necessary party. The piaintiff has no locus to fiie the civil suit on behalf of'the Shiv Mandir as he is neither Puiari nor lyiahunt of the temple and he has'.also faiied to prove that he was the manager ofthe temple. The isarned triai Court has correctly recorded a finding that the piaintiff Nathhulal Singhania Vi/as not authorized to file ciyil suft on behalf of Shiv Mandir. Jt is further argued that the lower appsilate Couit has erroneousiy relied upon Articles 409(2), 413 and 415-B ofthe Hindu Lav». The Kabuliyatnama of Ex.P/20 relied upon by the lovver appellate Court is an unregistered document and not admissible in evidence vAereas Articie 413 ^^^1 cEBes^aerase^BSHg Since the plai Artide413of' Wtath, Shebait, Mahunt, Debutter Property and the the instant case relates Singhania is not a Lawis not appiicable in the present case. !ll, 14. Learned. counsel for the appellant submitted that the foliowing substantial question of iaw arises for adjudication ofthis second appeal; reversi decree Court below was ng the judgment and decree of the tria! ofthe respondent/pl ne s< locus as Manaaer of Shiv Pdandir?" 15. Piacing reliance on the judgment reported in A|R_ire5 M.P. 167 (V 52 C 47] in the maiter of Chameiibai Vailabhadas and sthers Vs. Rarrschandraiee and others it is contended by counsel for the appeilant that viAiere a person comes forward to sue on behalf of a deity clsiming himself to be Shebaii, he can not-be aflowed to sue unl'ess he is abie to make ouf his ciaim so as to bind •/the resuit ofthe litigation. 16. Further reiying on the judgment reported in AiR 1967 Ailahabad 278 (V i4 C 83) in the matter of Thakyr Govind Deoji BsrNman and others Vs. iusaili and others it is contended that suit for recovery of possession of the property on behalf of idoi can be fifed by the Pujari only when sych person is able to show his prima facie right to do so. 17. Shri B.P.Sharma, Advocate appears on behalf of the respondent on caveat and he Is heard on stay appiication (M.C.P.No. 44/2006}. 18. Learned counsel for the resoondent submits that bofh the Courts beiow have heid that the suit shop in question'is the property beionging to Shivji ki murty/Shiv Mandir. Deity is a juristic personaiity and deity can/possess 19. Relying on the judgment of the Supreme Court reported in AiR 1967 S.C. 1044 (V 54 C 219) in the matter of Bishwanath and another Vs. Sri Thakur Radha Bailabhii and others it is argued that even worshipper can sue on behaif of idol for declaration oftitie and possession of propertyfrom a person in illegal possession and Section 92 ofthe C.P.C. is not a barfor mairstainabiiity of such suit. Even the trial Court has held that Nathhulat Singhania Vs'as managing the property in his personal capacity and in view of the above judgment there is no iitegaiity in the judgment ofthe appeilate Court. 20. ! have heard learned counsei forihe respective parties. 21. In Chamelibai Valiabhadas case (supra) it has been held that a person cannot be ailowed to sue on behalf of idol so as to prejudiciaiiy affeet the interest of the ido! and he has to make out his claim that he is Shebaif. However, in the instant case both the Courts below have recorded a finding that Nathhuial Singhania was managing the affairs ofthe temple as manager and the defendant was tenant of Shivji tempte. The iower appeliate Court has aiso recorded a finding that the det'endant has not paid rent from 01.08.1993, therefore, in the aforesaidcircumstances it cannot be said that the suit filed by the plaintiff as manager of the temple in any way prejudicialiy affects the interest ofthe idol. 22. In the matter of Thakur Govind Deoji Birajman (supra) also it has been heid that interest ofthe idol or its property is the main consideration in decidtns the competency ofthe person to file suit on behalf of an ido! and a.person can be permitted to file a suit in the name of the deity If he is able to show by proving that.he is She Mahunt/Pujari-or Manager of property ofthe tempie and the jnterest ofthe Idoi or its property is,to be safeguarded. Kabuliyatnama of Ex.P/20 executed on 08.01.1957 by the heirs of Chaturbhuj Singhania reveals that the piaintiff \vas entrusted wth the resDonsibility of looking after the shops of Shivji temple situated at Laiiunga. The above document may be considered So gatherthe intention ofthe founderwho estabiished the endowment and such document is admissible as per Articie 409(2) ofthe Hindu Law. According to Artic!e 413 ofthe Hindu Law by Mulla vrfiere property is devoted absoiuteiy So n^ reiigious purposes then a suit on behalf of the temple for proteciion of property can be brought by Shebait, manager ofthe ternple and the position of the Shebalt is elaborated in Article 414 ofthe Hindu Law. 23. in the matter of Bishwanath and another (supra) the Supreme Court in paragraph - 7 of its judgment has held that Section 92 ofthe C.P.C. is attracted •lAitiere the trust is created for pubiic purposes of a charitable or a religious nature; there Vias a breach of trust or a direction of Court is necessary in the administration of such a trust; and the reiief claimed is one or other ofthe reiiefs enumerated therein. Where a suit is by an ido! as a juristic person against a person v/no interfered unia'wfuily w'th the property of the ido! was a suit for enforcement of its private right and v/as, therefore, not a suit to wh'mh S. 92 of the Code of Civi! Procedure appiied. !n the instant cass also the suit is fiied by the idoi for possession of its property from the person vrfio is in il'ega't possession thereof and therefore, the instant suit !s a suit by idoi to enforce its private right and as such maintainabte. 24. On the basis of aforesaid anaiysis, this Court is ofthe considered opinion that the lo*."/er appeilate Court was justifled in arriving at the conciusion that Nathhuia! Singhania being manager of Shjyji ki Murti, Shiv Tempte at Lailunga, was authorized to fiied civi! suit for recovery of possession and arrears of rent against the defendant and there is no iilegaiity in impugned judgment. No substantia! question of law as proposed by the appeliant is made out for adjudication ofthis appeal and the appea! being without substance deserves to be dismissed at the motion stage itseif. 25. In the resuit, tiie appeal fails and is hereby dismissed. 26. . In the light of above order M.C.P.N6. 44/200S stands dismissed. Sd/- Dhirendra Mishra Judge