HIGH COURT OF UTTARAKHAND AT NAINITAL FIRST APPEAL NO. 80 OF 2002 Bhagwati Shree Kuteti Devi Murti & Others ….Plaintiff-Appellants Vs. Ram Narayan ….Defendant-Respondent Dated 5.5.2008 Hon’ble Rajesh Tandon, J. Heard Sri N.S. Negi, counsel for the appellants and Shri V.K. Bisht, Sr. Advocate assisted by Shri V.K. Kaparwan, counsel for the respondent. 2. By the present first appeal filed under Section 96 of the Code of Civil Procedure, the appellants have prayed for setting aside the judgment and decree dated 2.12.2002 passed by the District Judge, Uttarkashi in Original Suit No. 38 of 1998 by which the suit of the plaintiff-appellants has been dismissed. 3. Briefly stated, a suit was filed by the plaintiff-appellants being suit no. 38 of 1998 praying for the permanent injunction restraining the defendant-respondent Ram Narayan from encroaching the temple property as well as the Dharmashala of the temple. According to the plaint averments, the plaintiffs Bhagwati Kuteti Devi is the Old temple and the villagers of district Uttarkashi and other neighbouring districts perform worship in the said temple. About 42 Brahmin families of Nautiyal caste of village Tilloth, Jashpur and Thalang look after the management of the temple. It has been stated that the 2 defendant-respondent Ram Narayan has constructed another temple beside old temple of Bhagwati Kuteti Devi and encroached the Dharamshala which is the property of Bhagwati Kuteti Devi Temple. The plaintiff Bhagwati Kuteti Devi Temple is registered in the Archeological Department on 29.5.1982 which was extended from time to time. It has been alleged that the defendant has got registered the statues of Kuteti Devi as antique by playing fraud on the basis of which he claims that the temple constructed and owned by him is Old Kuteti Devi Temple. The father-in-law of the defendant, namely, Ratiram was the licencee of the defendant and his heirs were also licencees, whose licenses have been terminated. Hence, the present suit has been filed praying for the permanent injunction restraining the defendant-respondent Ram Narayan from encroaching the temple property as well as the Dharmashala of the temple. 4. The defendant has filed a written statement denying the plaint averments. It has been stated that on the similar grounds, the plaintiffs have instituted a suit being suit no. 8 of 1998 praying for permanent injunction which was withdrawn. The suit, therefore, is not maintainable. It has been stated that the plaintiffs cannot institute the suit because they have not been authorized by other Priests. The Dharmashala is not situated in the temple premises. It has been submitted that the temple in which he worships is old Kuteti Devi Temple and the devotees perform the worship in the said temple. 5. On the pleadings of the parties, the trial court has framed the following issues:- 3 “1] D;k oknhx.k ds dCts okyk dqVSVh nsoh dk efUnj gh ,dek= izkphu efUnj gS ftldk ckn esa th.kksZ)kj djds orZeku Lo:Ik esa ifjofrZr fd;k x;k gS] tSlk fd oknh dk dFku gS\ 2- D;k izfroknh ds llqj jfrjke us /keZ’kkyk dks efUnj dk :Ik fn;k rFkk izfroknh us mls izkphu dqVSVh nsoh ds efUnj ds :Ik esa izpkfjr o izlkfjr fd;k rkfd HkDrx.k Hkzfer gksdj mlds efUnj esa gh iwtk&vpZuk djus vk,a\ 3- D;k izfroknh ds dCts okyk efUnj gh ,dek= dqVSVh nsoh dk izkphu efUnj gS\ tSlk fd izfroknh dk dFku gS\ 4- D;k izfroknh iqtkfj;ksa dh lgefr ls fookfnr lEifRr ij dkfct gS vkSj og dkfcys csn[kyh gS\ 5- D;k oknh dks okn dkj.k ugha Fkk vkSj blfy, okn fujLr gksus ;ksX; gS\ 6- D;k ;g okn le; lhek ls ckf/kr gS\ 7- oknh fdl vuqrks"k dks ikus dk vf/kdkjh gS\ 6. The plaintiffs have produced 4 documents per list 71 C, 15 documents per list 108 C and 1 document per list 134 C. The defendant has filed 6 documents per list 25 C, 4 documents per list 126 C, 1 document per list 93 C and 1 document per list 104 C. 7. Towards the oral evidence, the plaintiffs have examined P.W.1 Munim Prasad Verma, P.W.2 Ramprasad, P.W.3 Vishan Singh, P.W.4 Indra Singh and P.W.5 Suratram. Towards the oral evidence, the defendants have examined D.W.1 Mor Singh, D.W.2 Kalam Singh and D.W.3 Ram Narayan. 8. While deciding issue no. 1 as to whether the temple which is in possession of the plaintiff is the original temple of Kuteti Devi and further issue no. 3 as to whether the temple which is in possession of the defendant is the original old temple of Kuteti Devi, the trial court has recorded the finding that on the basis of 4 the evidence available on record, it is not proved that which of the temple in dispute is old and original one. The trial court has recorded the finding to the following effect:- “vr% eSa bl fu"d"kZ ij igqWapk gWwa fd miyC/k lk{; ds vk/kkj ij ;g dnkfi lkfcr ugha gksrk fd bl ifjlj esa og dkSu lk eafnj Fkk tks ewy iq:"k }kjk Hkxorh Jh dqVSVh nsoh mRrjdk’kh ds izakx.k esa izfrLFkkfir ewfrZ;ksa dk Lo:Ik iw.kZr;k ifjofrZr gks pqdk gS vkSj vius ewy :Ik esa vc ekStwn ugha gS vkSj dksbZ ,slh fo’oluh; lk{; Ik{kdkjksa }kjk izLrqr ugha dh xbZ gS fd ekStwnk nksuks eafnjksa esa og dkSu lk eafnj Fkk ftldks ewy iq:"k }kjk izkphu le; esa izfrLFkkfir djus ds ckn mlds Lo:Ik esa ifjorZu vFkok ifjo)Zu fd;k x;k gS \ orZeku le; esa nksuks gh efUnjksa esa J)kyqvksa dh vkLFkk gksus ds dkj.k o iwtk&vpZuk fd, tkus ls ek= ;gh dgk tk ldrk gS fd nksuks gh efUnj Hkxorh Jh dqVSVh nsoh ds d`ik ds ik= gSa ,oa og nksuks gh efUnjksa esa fojkteku gS A J)kyq HkDrx.k bu nksuks gh efUnjksa ds n’kZu dj larq"V gks jgs gSa A iqtkfj;ksa dks dksbZ Hkh ,slk d`R; vFkok dksbZ ,slk Hkzked izpkj ugha djuk pkfg, ftlls J)kyq HkDrx.k esa Hkxorh Jh dqVSVh nsoh ds fdlh izfr:Ik ds izfr vkLFkk [kafMr gks AÞ 9. While deciding issue no. 2 as to whether the father-in-law of the defendant has given the shape of temple to the Dharmshala and the defendant has advertised the said Dharmshala as Old Kuteti Devi Temple and further issue no. 4 as to whether the defendant is in possession of the said property with the consent of the priests and he is liable to be dispossessed, the trial court has come to the conclusion that the plaintiffs have failed to prove that the Ratiram was living in the property in dispute on the basis of license and he was not having any right to perform worship on the property in dispute and further it is not proved that the defendant is giving the shape of the Dharmashala as temple and advertising the same as Old Bhagwati Kuteti Devi Temple. 10. While deciding issue no. 5 as to whether the plaintiffs have no cause of action and, therefore, the suit is liable to be dismissed, the trial court has taken into consideration paper no. 26 C which is order dated 1.7.1998 passed by the court in O.S. 5 No. 8 of 1998. The trial court has come to the conclusion that the plaintiffs have cause of action to file the suit. 11. On the basis of the aforesaid, trial court has dismissed the suit of the plaintiff. The findings recorded by the trial court with regard to relief is quoted below:- “42- izLrqr okn esa vuqrks"k 40 ¼d½ bl vk’k; ls pkgk x;k gS fd fookfnr LFky ftlesa izfroknh ds llqj }kjk dk””"B dh ewfrZ ,oa xzke fryksFk ds ukx nsork ds efUnj ls ykbZ xbZ ewfrZ j[kh gqbZ gS] dks Hkxorh Jh dqVSVh nsoh ds izkphu efUnj ds :Ik es aizpkfjr ,oa izlkfjr djus ls izfroknh dks ckt j[kk tk; A okn foUnq la[;k 1 o 3 ds fuLrkj.k esa nh x;h miefr;ksa esa oknhx.k ;g ckr lkfcr djus esa iw.kZr;k vlQy jgs gSa fd izfroknh dk llqj jfr jke izfroknh ds v/;klu okys efUnj esa dk"B dh ewfrZ o ukx nsork dh ewfrZ dh iwtk&vpZuk djrk Fkk A ;g ckr iw.kZr;k vLokHkkfod izrhr gksrh gS fd tks O;fDr thoui;Zur Hkxorh Jh dqVSVh nsoh dk iqtkjh jgk gks og o`)koLFkk esa Hkxorh Jh dqVSVh nsoh dh okLrfod ewfrZ dks NksM+dj ek= ,d dk"B dh ewfrZ dh iwtk&vpZuk djrk gks A mDr nksuks okn foUnqvksa ds fuLrkj.k ls ;g lkfcr ugha gksrk gS fd bu nksuks efUnjksa esa dkSu lk efUnj izkphu gS vr% vuqrks"k 40 ¼d½ gsrq ;g okn fujLr gksus ;ksX; gSA 43- vuqrks"k 40 ¼[k½ esa vuqns’kkRed fu"ks/kkKk dh fMxzh bl vk’k; ls pkgh x;h gS fd izfroknh dk llqj bl LFky] ftls oknhx.k us /keZ’kkyk dk gS] ij jgus gsrq mlds llqj dks efUnj lfefr }kjk yk;lsal fn;k x;k Fkk vkSj mlds llqj dh e`R;q ds ckn mldk yk;lsal lekIr gks x;k gS vr% izfroknh dks viuk v/;klu lekIr djus gsrq vkns’kkRed vkKfIr pkgh x;h gS A okn foUnq la[;k 2 ,oa 4 ds fuLrkj.k ls ;g ckr iw.kZr;k Li"V gS fd izfroknh dk llqj jfr jke fookfnr lEifRr ij fdlh yk;lsal ds v/khu ugha jgrk Fkk rFkk ftl Hkwfe ij izfroknh ds v/;klu okyk efUnj gS LFkkfir gS og Hkwfe ou foHkkx dh gS vr% oknhx.k ds Ik{k esa ;g vuqrks"k Hkh iznku ugha fd;k tk ldrk A 44- vuqrks"k 40 ¼x½ eq[;r% okn O;; ls lacaf/kr gS A 45. mijksDr leLr foospuk ls eSa vUr esa bl fu"d"kZ ij igqWapk gWwa fd oknhx.k dk lEiw.kZ okn fujLr gksus ;ksX; gS A” 6 12. I have perused the record. 13. P.W.1 Munim Prasad Verma, contractor has stated that he has renovated the temple in question and at the time of renovation of the temple, there was no other temple behind the original temple. However, P.W.2 Ram Prasad has admitted that in which temple the father-in-law of the defendant was performing worship, the defendant performs worship in the same temple and both the temples in question are known as Bhagwati Kuteti Devi Temple. 14. P.W.3 Bishan Singh has stated that he has worked as meson along with the contractor, namely, Rameshwar Dayal, who had renovated the temple. But no proposal for renovation of the said temple by the Temple Committee has been produced. Further, no estimate of expenses has been produced in order to prove the aforesaid renovation and, as such, the evidence of this witness cannot be relied upon. 15. P.W. 4 Indra Singh in his statement has admitted that the worship is also being performed in the temple which is being looked after by the defendant Ram Narayan. 16. So far as the deposition of P.W.5 Surat Ram is concerned, the same is based on the myths and hearsay. 17. Further, paper no. 99 C which is the list of Pujaris shows that the name of the defendant was also included in the said list. 18. So far as the defendant witnesses, D.W.1 Mor Singh and D.W.2 Kalam Singh, are concerned, they have deposed that 7 worship is being performed in both the temples in question. Statemtn of D.W.1 Mor Singh to that effect is quoted below:- “HkDrx.k nksuks gh efUnjksa esa vkdj iwtk rFkk n’kZu djrs gSa A” 19. D.W.1 Mor Singh, in his cross-examination, has further stated as under:- “izfroknh jkeukjk;.k ds v/;klu esa fLFkr dqVSVh nsoh dh izkphu ewfrZ;kWa jkeukjk;.k okys efUnj esa j[kh gqbZ gS A” 20. In view of the aforesaid, the findings recorded by the trial court are based on the evidence available on record and the trial court has rightly dismissed the suit. The judgment and decree passed by the trial court, therefore, requires no interference and, as such, the same is liable to be confirmed and the appeal is liable to be dismissed. 21. Consequently, judgment and decree passed by the trial court is confirmed and first appeal is dismissed. No order as to costs. (Rajesh Tandon, J.) 5.5.2008 Avneet