1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN JAIPUR BENCH, JAIPUR J U D G M E N T Satya Narain Vs. Dwarka Prasad S.B. CIVIL SECOND APPEAL NO.113/1996. UNDER SECTION 100 OF THE CPC. DATE OF JUDGMENT: 12th October, 2009 HON'BLE MR.JUSTICE S.P.PATHAK Mr. Prem Kishan Sharma for the appellant. Mr. Amit Gupta for the respondent. BY THE COURT: This civil second appeal under section 100 of the Code of Civil Procedure has been filed against the judgment and decree dated 16th November, 1995 passed by the learned Special Judge, Dacoity Affected Area and Additional District Judge, Karauli in Civil Appeal No.13/1993 by which the judgment dated 28th April, 1993 passed by the learned Munsiff Karauli in Civil Suit No.194/1985 was reversed and decree was passed against the appellant. Briefly stated the facts for the disposal of the present second appeal are that the plaintiff-respondent Dwarka Prasad filed a suit for permanent injunction to the court of Munsiff, Karauli in the year 1985 alleging therein that there exists a temple in the town Karauli and known as Mandir Thakurji Shri Radha Kishanji which was gifted to his fore- 2 fathers. The plaintiff is doing seva puja for last 20 years and getting repair work done from time to time and has also obtained electricity and water connections in the temple. The defendant-appellant entered in the temple on 17.11.1985 and tried to dispossess the plaintiff from the portion where he was living but could not succeed. The plaintiff was doing seva puja alone of the temple as co-sharers subsequently did not take any interest in seva puja and stopped doing seva puja, therefore, the affairs of the temple were being managed by him. In the suit prayer was made that the defendant appellant be restrained by an injunction not to interfere in seva puja being done by the plaintiff. The defendant-appellant filed written statement. In para 1 of the written statement pedigree of fore-fathers of defendant-appellant and plaintiff-respondent has been mentioned to show that the defendant was one of the co- sharers as plaintiff's grand-father and his grand-father both were brothers. It is also averred that the plaintiff made a request before 8 years of filing the suit to accommodate him and temporarily allow him to use kothari (small room) with the assurance that he would vacate the same as and when needed. In the written statement as regards obtaining electricity and water connections by the plaintiff is concerned, has not been denied. In special pleas it was averred that the suit was not maintainable as the court was having no 3 jurisdiction to try the suit. The learned trial court framed five issues including relief. Both the parties led their evidence. On behalf of the plaintiff he examined himself as PW-1, Devi Lal as PW-2 and Ummed Singh as PW-3. The defendant-appellant examined himself as DW-1 and Jamuna Lal as DW-2, Shyam Sunder as DW-3, Bhagwati Lal as DW-4 and Ramesh Chand Sharma as DW-5. The learned trial court recorded its finding on issue no.1 which was in relation to the plaintiff's possession on a kothri with the right of seva puja of the temple to the effect that plaintiff was having right of seva puja and was staying in the kothri with the permission of the defendant-appellant and since permission was withdrawn, therefore, by due process of law plaintiff was liable to be evicted. Issue no.2 was in relation to the share of the plaintiff. The learned trial court recorded its finding that plaintiff along with other co-sharers was having 1/8th share. Issue no.3 was in relation to non-impleading other co-sharers as parties, the suit was not maintainable. The learned trial court found that since the suit was for permanent injunction and no decree was sought against other co-sharers, therefore, the suit was maintainable. Issue no.4 was in relation to jurisdiction of the court. It has been found by the trial court that since the defendant did not produce any evidence to show 4 that the court was not having any jurisdiction, therefore, this issue was decided against the defendant. The learned trial court on the basis of finding recorded on issue no.1 dismissed the suit vide its judgment and decree dated 28.4.1993. The plaintiff-respondent having felt aggrieved preferred appeal before the learned Special Judge (Dacoity Affected Area) and Additional District Judge, Karauli who vide its judgment and decree dated 16.11.1995 reversed the finding recorded by the trial court and decreed the suit for permanent injunction and it was ordered that the plaintiff shall not be removed from the alleged premises occupied by him in the temple without following due process of law. Hence, the present second appeal has been filed. I have heard learned counsel for the parties and have carefully perused the material available on record. This court while admitting the appeal framed following substantial questions of law: “(1) Whether one descendant can acquire exclusive right of a temple simply on the basis of performing 'pooja'? (2) Whether the rights of other descendants who were co-sharers can be extinguished simply on the basis of their permitting one descendant to perform 'pooja' and whether this permission cannot be withdrawn? (3) Whether a decree can be passed in an injunction suit perpetuating the possession of one descendant and restraining all other descendants/co-sharers without deciding their respective rights in a proper suit filed for the purpose? 5 All the three questions of law referred to above are inter-related to each and are being decided together. Re- Question Nos.1 to 3: It has been the contention of the learned counsel that in the instant case one descendant cannot acquire exclusive right in the temple and as in the present case defendant-appellant permitted the plaintiff to do seva puja and also considering the need of the plaintiff allowed him to stay in the kothari and subsequently when the defendant wanted to do seva puja, he was not allowed to do seva puja. According to the learned counsel the trial court has correctly dismissed the suit and the learned appellate court committed illegality in decreeing the suit. On the other hand, it has been contended that in the present matter the suit for permanent injunction was filed by the plaintiff who was having a right to do seva puja and was also a co-sharer and this aspect of the matter could not be controverted by the defendant-appellant, therefore, assuming for the argument sake that even if the plaintiff was a licensee in the kothari of the temple, then also he was not liable to be dispossessed without following due process of law. It is contended that the suit for permanent injunction was filed and the rights of the parties were not liable to be determined in the suit and the learned appellate court finding that the trial court has misread the evidence and incorrectly appreciated the 6 evidence, set aside the judgment and decree passed by the trial court. According to the learned counsel, the substantial questions of law framed in the present matter appears to have been framed on the basis of grounds mentioned in the memorandum of appeal and in fact in the present matter question to be determined is as to whether plaintiff had a right to do seva puja and from the premises he was liable to be removed without following due process of law? It is to be seen that in the instant case, a suit for permanent injunction was filed wherein the grievance of the plaintiff was that the defendant-appellant tried to dispossess the plaintiff of the premises occupied by him in the temple. It appears from the statement of DW-1- defendant himself that he has admitted that there was no income from the temple and the plaintiff was also a co-sharer and was having a right to do seva puja. The defendant-appellant in his statement has stated that 7-10 years back of filing of the suit by the plaintiff, he was given a kothri by him. On making a request to vacate the kothari, the defendant-appellant refused to vacate the same. The plaintiff has in his statement stated that he had exclusive right to do seva puja as other co-sharers have stopped seva puja. In view of above two statements, i.e. one of the plaintiff and the other of the defendant, it becomes amply proved that the plaintiff was doing seva puja and also obtained electricity and water connections in the temple. If that be so, 7 the learned trial court committed illegality and has not in fact properly appreciated the evidence and has misread the evidence. The finding of the learned appellate court that the plaintiff-respondent was performing seva puja and may be living in the temple premises with the permission of the defendant-appellant then also he was not liable to be dispossessed without following due process of law. This finding of the learned appellate court cannot be said to be illegal, unjust and improper. It is correct that a descendant viz-a-viz other descendant cannot claim exclusive right unless the rights of the parties are determined by proper forum. In the present suit the only matter which was required to be considered was as to whether the plaintiff could be stopped from doing seva puja. The defendant has not denied the right of seva puja of the plaintiff in his statement and to this extent the relief granted by the learned appellate court cannot be said to be unjust and improper. Thus, I am of the opinion that the learned trial court has committed illegality in appreciating the evidence and dismissing the suit whereas the learned appellate court has properly considered the matter while reversing the finding recorded by the trial court. In the present matter, the exclusive right of the plaintiff has not been determined and the court could not determine that right and for that matter if the same are agitated in accordance with law, the same can be 8 determined. But as regards right of seva puja is concerned, it has not been denied by the defendant and the grievance of the plaintiff was that he was restrained by the defendant not to do seva puja, therefore, it became essential for the plaintiff to file the suit and the plaintiff was able to prove his right of seva puja. In view of above discussion, I do not find any illegality in the judgment passed by the learned appellate court and the same requires to be upheld. In view of the fore-going discussions, the answer to the questions framed is that one descendant cannot acquire exclusive right of temple simply on the basis of performing seva puja and his rights cannot be extinguished in the property of the temple on the basis of permitting one of the co-sharer to remain in temple. The rights in relation to the property of the temple could be determined only by way of filing a proper suit. The plaintiff cannot be dispossessed from the property of the temple without following due process of law. In view of above discussion and answer to the question nos. 1 to 3, the appeal is liable to be dismissed. In the result, this second appeal is dismissed. (S.P.PATHAK) J. bblm