Reserved IN THE HIGH COURT OF UTTARAKHAND AT NAINITAL SECOND APPEAL NO. 1333 OF 2001 Sri Bhairab Dutt and others. …Defendants/Appellants. Versus Sri Bala Dutt Bhatt …Plaintiff/Respondent. Mr. Rakesh Thapliyal, Advocate for appellants. Mr. Rajendra Dobhal, Advocate for respondent. 15th April, 2009 Hon’ble Sudhanshu Dhulia, J. This second appeal of the defendants arises out of the judgment and decree dated 31.7.2001 passed by the District Judge, Almora, confirming the judgment of the trial Court in Suit No. 47 of 1995. 2. The matter relates to a temple and the rights of the plaintiff & the defendants to perform “Puja” in that temple. At Jageshwar in District Almora, there is a temple known as “Jageshwar Temple Dham”. It is in fact a cluster or a group of temples where one of the temples is that of “Pushti Devi”. The father of the plaintiff was a “Panda” in this temple and used to perform “Puja” and according to the plaintiffs this right to perform Puja has subsequently devolved on him. According to the plaintiff, the defendant no. 1 and 2 are also Priest / Panda of temple and they are not allowing the plaintiff to perform 2 “Puja”. Hence, the cause of action for filing the suit where the plaintiff sought a decree of permanent injunction against the defendants. The suit of the plaintiff was decreed by the trial Court and the appeal of the defendants was dismissed by the lower appellate Court. In short the contention of the plaintiff / respondent has been upheld by both the courts below. 3. At this stage the pedigree chart must be given in order to have a proper perspective of who’s who in this case. The pedigree chart is as follows: Manorath Bhatt Bishan Dutt Bhatt Tula Ram Bhatt Nidhi Bhatt (Elder Son) 1 2 3 Kishnanand Bhatt (Only son) (died in 1962) (Paralytic Attack) Shiv Dutt Bhatt Mahadev Bhatt Tara Dutt Bhatt Bala Dutt Bhatt (He was unmarried (since 1957 priest (Plaintiff) and died at the age due to paralytic 22 years) attack of Kishnanand Bhatt and being eldest son (dies in 1989) Bhairab Dutt Bhatt Kaustubanand Bhatt (Defendant No. 1) (Defendant No. 2) Ganesh Mahesh Dinesh (Defendant No.3) Harish Ramesh 4. Sir Bhairab Dutt Bhatt, Sri Kaushalanand Bhatt and Sri Dinesh are the defendants / appellants, 3 whereas Sri Bala Dutt Bhatt is the plaintiff. Evidently Sri Bala Dutt Bhatt had filed the suit against his nephews. 5. This second appeal of the defendants/appellants was admitted on the following substantial question of law, framed by the court, at the time of admission. They are: “A. Whether, permanent injunction can be granted to a person who is not at all in the possession over the property in question? B. Whether, the injunction can be granted on the ground that the right of worship is the right of property? C. Whether a permanent injunction can be granted in favour of a person on the ground of right of worship in a temple having national importance looking after by the Archaeological Survey of India declared the monument of national importance, in favour of a person against whom criminal proceedings are pending in the courts below?” 6. However, with agreement of both the parties out of the aforesaid substantial questions of law, this court only heard the parties on the first two substantial questions of law. Apart from this during the course of arguments, and after the perusal of records, the court was satisfied that another substantial question of law emerges in the case and that it the following: “Whether the findings given by the courts below suffers from any perversity?” 7. Therefore the above substantial question of law will also be treated to have been framed by this Court, 4 and the parties having heard of this substantial question of law as well. 8. The case of the plaintiff is that his father namely Krishnanand Bhatt was the Priest / Panda in the temple, who was having four sons; namely Baladutt (plaintiff), Mahadev Bhatt, Tara Dutt Bhatt and Shiv Dutt. Shiv Dutt died issueless. Mahadev Bhatt was having two sons namely Bhairab Dutt Bhatt/defendant no. 1 and Kastubanand Bhatt / defendant no. 2. Tara Dutt Bhatt was having three sons namely Ganesh Chandra Bhatt, Mahesh Chandra Bhatt and Dinesh Chandra Bhatt. After the death of Mr. Krishnanand Bhatt, the right to worship was inherited to the plaintiff and his three brothers. After the death of Mahadev Bhatt and Tara Dutt Bhatt, the plaintiff was performing “Puja” in the temple and he became the sole priest. 9. The case of the defendants is that the plaintiff had left Jageshwar to seek a job elsewhere, and has recently returned to Jageshwar and has now started claiming his right as “Panda” in the temple. The father of the defendants was eldest surviving son of Krishnanand Bhatt and being eldest surviving son, he was Panda and after his death, the right to worship has devolved on them i.e. the defendants. It is only the defendants, who have right to perform “Puja” and the plaintiff has no right to perform “Puja”. 10. It is settled principle governing the law of injunction that ordinarily if the suit property is in possession with a person for a sufficiently long time then injunction should not disturb that possession. However, it is equally true 5 that a person in possession can resist the entire world but not the true owner, even if the true owner is not in actual possession of the property. In the present case, the property is not a tangible matter like land or a building but something intangible: it is the right to perform “Puja” in a particular temple. However, the same principle as referred above will govern the case. Therefore the answer to the first substantial question of laws i.e. A is in affirmative. In the present case in case if the plaintiff is the true owner of the property right as claimed by him then he can claim permanent injunction even against the defendants, even if he was not performing the “Puja” at the relevant time. However, the question would be as to whether in the present case the plaintiff had discharged his burden of his claim of being the true owner. 11. Secondly as discussed above though the right to perform “Puja” are intangible rights yet it is a property right as indeed priests and Pandits traditionally make a living out of performance of “Puja”. Therefore ‘property right’ in performance of “Puja” are certainly there and an injunction can be claimed in term of Section 38 and 39 of Specific Relief Act. But again the question would be whether the plaintiff has really discharged its burden? 12. It is this substantial question of law, which will be examined now by this Court and will be seen whether the plaintiff had discharged his burden the substantial question of law will therefore be whether the finding given below do not suffer from perversity. It is true that a second appeal can only be admitted and heard on a 6 substantial question of law. Not only is it clear from Section 100 but there is a further restrictions in Section 101 of Code of Civil Procedure. Section 100 and 101 read as follows: “[100. Second appeal.—(1) Save as otherwise provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law. (2) An appeal may lie under this section from an appellate decree passed ex parte. (3) IN an appeal under this section, the memorandum of appeal shall precisely state the substantial qeustion of law involved in the appeal. (4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question. (5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question: Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the 7 Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question]. Section 101. Second appeal on no other grounds.---No second appeal shall lie except on the grounds mentioned in section 100.” 13. However, Section 103 of the Code of Civil Procedure does give power to the High Courts to decide “any issue necessary for the disposal of the appeal”. It must be clear though that Sections 100, 101 and 103 have to have a harmonious construction and therefore a finding of fact will only be interfered with in Second Appeal if the finding is totally perverse and the finding is a result of mere conjectures and surmises rather than based on any worthwhile evidence 14. The Hon’ble Apex Court in Kulwant Kaur Vs. Gurdial Singh Mann (dead) by L.R.s and others reported AIR 2001 Supreme Court 1273 while delving on the aforesaid issue stated as follows: “..Judicial approach being justice oriented, exclusion of jurisdiction of the High Court under the circumstances as contented by Mr. Mehta, would lead to an incongruous situation being opposed to the concept of 8 justice. Technicality alone by itself ought not to permit the High Court to decide the issue since justice oriented approach, is the call of the day presently. The learned single Judge in the matter under consideration has delved into the issue as to whether in fact the evidence on record warrant such a conclusion-whether the High Court was right in such appreciation or not—that is entirely a different issue. But the fact remains that scrutiny of evidence will be totally prohibited in the matter of exercise of jurisdiction in second appeal would be too broad a proposition and too rigid an interpretation of law not worthy of acceptance. If the concept of justice of warrant, we do not see any reason why such an exercise would be depricated. This is however, without expression of any opinion pertaining to Section 100 of the Civil Procedure Code.” 15. The Hon’ble Apex Court further elaborated this aspect thus: “32. Admittedly, Section 100 has introduced a definite restriction on to the exercise of jurisdiction in a second appeal so far as the High Court is concerned. Needless to record that the Code of Civil Procedure Amendment Act, 1976 introduced such an embargo for such definite objectives and since we are not required to further probe on that score, we are not detailing out, but the fact remains that while it is true that in a second appeal a finding of fact even if erroneous will generally not be disturbed but where it is found that the findings stands vitiated on wrong test and on the basis of assumptions and conjectures and resultantely there is an element of perversity involved therein, the High Court in our view will be within its jurisdiction to dealt with the issue. 9 This is, however, only in the even such a fact is brought to light by the High Court explicitly and the judgment should also be categorical as to the issue of perversity vis-a-vis the Concept of justice. Needless to say however, that perversity itself is a substantial question worth adjudication—what is required is a categorical finding on the part of the High Court as to perversity. In this context reference be had to Section 103 of the Code which reads as below: “103. In any second appeal, the High Court may, if the evidence on the record is sufficient, determine any issue necessary for the disposal of the appeal— (a) which has not been determined by the lower Appellate Court or by both the Court of first instance and the lower Appellate Court, or (b) which has been wrongly determined by such Court or (c) Courts by reason of a decision on such question of law as is referred to in the Section 100.” The requirements stand specified in Section 103 and nothing short of it will bring it within the ambit of Section 100 since the issue of perversity will also come within the ambit of substantial question of law as noticed above. The legality of finding of fact cannot but be termed to be a question of law. We reiterate however, but there must be a definite finding to that effect in the judgment of the High Court so as to make it evident that Section 100 of the Code stands complied with.” 16. In the case referred above, the Hon’ble Apex Court had though set aside the judgment of the High Court whereby the High Court had interfered in the findings of fact of the lower appellate Court, yet broad features pertaining to Sections 101, 102 and 103 of the Code of Civil Procedure have been outlined by the Hon’ble Apex 10 Court in that case and as a net result in exceptional cases where the findings appeared to be totally perverse and where such a substantial question of law has been framed by the High Court, the interference would be justified. 17. This court finds that it is a case where no elaborate evidence has been adduced either by the plaintiff or the defendants to ascertain their rights. However, heavy burden was placed upon the plaintiff and the “burden of proof” was on him to prove that he had a right to perform “Puja” in the “Pushti Devi Temple”. Both the plaintiff as well as the defendants had produced one witness each in supports of their relative claim before the trial Court. As a witness, the plaintiff had produced a boy of 26 years of age namely Pitambar Pandey i.e. PW2, who evidently resides in Nainital (i.e. not at Jageswhwar) and who has given a statement that he used to go to “Pushti Devi Temple” at Jageshwar, where the plaintiff used to perform “Puja” and the defendants were putting hindrance, in his “Puja”. 18. On the other hand, the defendants had produced one Govind Ballabh as D.W.2. This DW2, who is 62 years of age and is a “Panda” in one of the temples at Jageshwar namely Maha Mrityunjaya Temple. He is an important witness and his evidence, which is in favour of the defendants, has great weightage than that of given by the P.W.2 in favour of the plaintiff. However, both the trial court as well as the lower appellate court have not given any credence or weight to the evidence given by the DW2. Moreover, the lower appellate court while admitting that the eldest son keeps the right to perform “Puja” has 11 arrived at entirely different meaning out of this and purely on the basis of conjectures and surmises has held that the father of the defendants being eldest son has right to perform “Puja”. This finding of the lower appellate Court is totally alien to the pedigree, which is admitted by both the parties. 19. In a suit for permanent injunction which has been filed by the respondent / plaintiff, there was a heavy burden on the plaintiff to prove that he had right to perform “Puja” on the temple. No worthwhile evidence has been adduced by the plaintiff to substantiate his claim before the courts below. The only evidence produced by the plaintiff is P.W.2 namely Pitambar Pandey, who is 26 years old boy, who actually resides in Nainital and thus, his evidence is of little value. On the other hand, the evidence of D.W.2 Govind Ballabh, who is 62 years old and is a priest at Maha Mrityunjay Temple at Jageshwar itself i.e. a temple priest in the same temple complex Jageshwar being a group of different temples though in the area and being an elderly person has a much larger experience and knowledge particularly in these priestly matters of “Puja” and ceremony and therefore he is a very important witness. Compared to the evidentiary value of the two witnesses, this Court feels that the evidence given by the D.W.2 Govind Ballabh had a much greater value in relation to that of P.W.2 Pitambar Pandey for the reasons that D.W.2 Govind Ballabh is a priest in the same temple area and therefore ought to know much more than anyone else as to who was performing Puja in “Pushti Devi Temple”? He is 62 years of age and has been priest for substantial number of years and if, he has given any evidence in 12 support of the defendants then that had to be taken into cognizance by the court below. All the same, this has not been done and the evidence of a roving stranger PW2, who is a young boy and visits Jageshwar Temple by chance has been relied upon by both the courts below. D.W.2 in his statement has said that Bhairab Dutt does “Puja” and prior to it his father Sri Mahadev Bhatt used to perform “Puja”. Puja is performed as of right by the eldest brother of the family. This witness further states that Bala Dutt i.e. the plaintiff had since long left Jageshwar and had opened a shop at Lal Kuan. He has thereafter returned to Jageshwar in the last six years but in these six years, he has not been seen performing “Puja”. On the other hand the witness produced by the plaintiff i.e. P.W.2, who admittedly does some work at Nainital, now this witness states that he used to come to Jageshwar with his father and at “Pushti Devi Temple” “Puja” was done by the plaintiffs i.e. Sri Bala Dutt. This witness has not seen any hindrance being caused to plaintiff by the defendants. He says that he has been told by the plaintiff that the defendant no. 1 and 2 are creating hindrance in plaintiff’s performing of “Puja”. To this extent the statement is clearly ‘hearsay’ and cannot be treated as an evidence. Therefore, in the absence of any credible evidence for the claim of the plaintiff the findings recorded by the courts below in favour of the plaintiff are totally perverse. In fact the plaintiff had failed to establish his case for a permanent injunction against the defendants. 20. Furthermore, the claim of the defendants that being the descendants of the eldest son has also not been substantiated, yet the lower appellate Court accepted 13 their theory of eldest son having the right to perform “Puja” but by a totally wrong interpretation of this theory, lower appellate court has held that the plaintiff i.e. Bala Dutt Bhatt should have been given the right to perform Puja. The appellate Court states as follows: “The head of the family, who is the eldest in the line of inheritance, entitled to inherit the right of worship, as the case has been put by the plaintiff. Sri Mahadeo Bhatt and Sri Tara Dutt Bhatt are not alive. The fourth son Sri Bala Dutt is now the eldest son of Krishna Nand. He, therefore, is entitled to worship by the same tradition as has been alleged by Mahadeo Bhatt. It cannot be accepted that in the life time of Bala Dutt, the fourth son of Krishna Nand Bhatt, the sons of Mahadeo Bhatt would be entitled to worship.” 21. Moreover, the appellate Court has also stated that even assuming that Sri Bala Dutt Bhatt had not been performing Puja for sometime, such a right cannot be snatched away from him as the right of worship is a right, which is inherited and cannot be seized, if a person is not performing his right and has left village. According to the appellate Court, the right to worship is a property right, which is heritable in accordance with the traditions of the priest of family and therefore, he has a right to perform “Puja”. This logic does not hold much water inasmuch in case, assuming that Sri Bala Dutt Bhatt has a right to perform “Puja” but he has not been performing his right of worship for a great number of years, then it is difficult to presume that he would continue to have right of worship if he comes back to the temple after long year of staying out and claim to perform “Puja” as a matter of right. This proposition, in fact, has not been put to test and no arguments of any value have been advanced by any side on this aspect. 14 22. Sufficient it would be to say that the decree has been passed in favour of the plaintiff although the plaintiff has not been able to establish his case. The evidence adduced by the plaintiff are not of any great value and therefore, the decree has been wrongly passed in favour of the plaintiff. The findings recorded by both the courts below in favour of the plaintiff are therefore totally perverse. It is indeed settled that perversity of finding is a substantial question of law. The findings recorded by both the courts below are therefore held to be perverse and on the grounds the decree and judgment of both the courts below are liable to be set aside. 23. Consequent to the findings above, therefore the present appeal deserves to be allowed. The judgment and decree passed by the two courts below deserve to be set aside. The plaintiff’s suit is liable to be dismissed. The appeal is accordingly allowed. The judgment and decree dated 31.7.2001 passed by the District Judge, Almora in Civil Appeal No. 35 of 1998 and that of trial Court dated 9.11.1998 are set aside and the plaintiff’s Civil Suit No. 47 of 1995 is dismissed. No order as to costs. (Sudhanshu Dhulia, J.) 15th April, 2009 Rathour