1 S.B. CIVIL MISCELLANEOUS APPEAL NO. 2107 OF 2007 Rajendra Panda v. Udailal & Another. ::: DATED OF ORDER : 18th February, 2008 HON'BLE MR. MANAK MOHTA,J. Mr. Tribhuvan Gupta) Mr. Usman Gani ) for the defendant-appellant. Mr. A.K.Dhadhich, for the plaintiff-respondents. This Misc. Appeal has been preferred by the defendant-appellant against the order dated 12.9.2007 passed by the learned Addl. District Judge, No.2, Bhilwara in Civil Misc. Case No.100/2007, whereby the learned trial court has allowed the application under O.39 rr. 1 and 2, CPC filed by the plaintiff- respondents and granted temporary injunction in favour of plaintiff-respondents and against the defendant-appellant. Brief facts of the case are that the plaintiff- respondents filed a suit under Sec.34 and 38 of the Specific Relief Act, 1963 for permanent injunction along with Temporary Injunction Application under O.39 rr.1 and 2 read with Sec.151 CPC in the court of District Judge, Bhilwara. Later on, that suit 2 along with temporary injunction application was transferred to the court of learned Additional District Judge, No.2, Bhilwara for adjudication. It was stated in the plaint and temporary injunction application that there are 20 Panda families who are performing Seva Pooja of “Dhanop Mataji” temple at Bhilwara as per their settled turns. It is further stated that this turn used to come every after four years of each family for a period of four months. It was stated that at this time, the turn is come in the month of Bhadwa, Asoj, Falgun and Chaitra of Samvat 2064 and 2065. The right of seva pooja is hereditary right and in case of death of any Panda, the right of succession will be governed by Sec.104 of the Indian Succession Act, the property rights will be devolved on the successors. It is stated that the families of the plaintiffs and since deceased Amarchand were the joint participants of that Seva Pooja. When Amarchand was alive, he was also jointly performing the said pious duties. They were entitled to equal shares, presents and offerings collected during that period peacefully. It was submitted that now Amra @ Amarchand expired issueless on 17.10.2004, therefore, right of pooja seva is merged in respondent No.2-Mishrilal, as he has performed all the religious acts at the time of death of Amra and he is in possession of the property of Amra. It is alleged that on the death of Amarchand, the defendant-appellant claimed to be 3 assignee of late Amarchand, on the basis of gift-deed executed in his favour and on that basis, he gave threatening to interfere in the seva pooja of Dhanop Mataji temple during his turn. He also gave threatening to dispossess from the property of Amra to respondent No.2, therefore, a suit as well as TI Application was filed to restrain him from doing so. . In the TI Application, it was prayed that the defendant-appellant may be restrained from interfering in the Seva Pooja on their turn and be directed not to insist in receiving half of the offering and receipts and religious endowments. In the reply filed by the defendant-appellant has denied the exclusive right of seva pooja of the plaintiff-applicants. It was clearly stated that right of Seva Pooja has been gifted to him through a Gift-deed dated 18.1.92 by late Shri Amra and Smt.Sarju. The same was executed and registered on 19.1.92 by late Shri Amra and Smt.Sarju in favour of the defendant-appellant, thereunder all property rights including right of seva pooja was also given to the defendant-appellant as per his turn, therefore, he is also entitled to perform seva pooja as usual. It was further stated that on 12.11.2004, the plaintiff-respondents tried to take possession over the agriculture land, which was previously entered in the name of Amra but presently that is in possession of 4 the defendant-appellant. In this regard, an FIR was lodged and challan was filed against the plaintiffs and the trial is still pending in the court. It was also submitted that the plaintiff-respondents preferred a case before Sub-Divisional Magistrate, Shahpura, who passed an order dated 4.7.2007 but being aggrieved by that, the defendant-appellant preferred an appeal before Revenue Appellate Authority, in which, effect and operation of the order dated 4.7.2007 has been stayed. It was submitted that the plaintiffs have never challenged validity of the Gift-deed executed on 19.1.1992, therefore, they are not entitled to any relief in the suit and are not entitled to get T.I order. The defendant- applicant, by way of counter-claim, also prayed to issue temporary injunction against the plaintiff for not interfering and for not making any objection in performing seva pooja and receiving half of the offerings and receipts. It was submitted that the appellant is doing Seva Pooja since 1992 and he has been receiving half part of the offering/receipts and religious endowment, therefore, he is entitled to receive the same and be allowed to perform Seva Pooja as usual. Lastly, it was prayed that temporary injunction order may be issued against the plaintiff-applicants. After hearing both the parties, the learned trial court vide its order dated 12.9.2007 allowed the T.I. Application filed by 5 the plaintiff-respondents and issued temporary injunction order restraining the defendant-appellant to interfere in the seva pooja and to receive offerings and presents. The learned trial court dismissed the T.I. prayer claimed by the defendant-appellant., hence, this appeal before this Court. Notice of appeal was given to the respondents and arguments were heard and record of the case perused carefully. During course of arguments, the learned counsel for the appellant submitted that the learned trial court has committed grave error in holding that the plaintiff-respondents are having a prima facie case. It was contended that the plaintiff No.2 Mishrilal claimed as a successor of Amarchand but he alone cannot be declared as successor. No assignment or any instruction has been made in his favour. Contrary to that, the present appellant is also in the line of successor of the same Panda families, therefore, claim of the applicants was not at all maintainable and it was wrong to contend on the part of the plaintiff that right of worship is not transferable. In the same way, the learned trial court has committed error in granting injunction order. The order passed by the learned trial court on 12.9.2007 is against the settled principles of law contrary to the facts and material available on record. The learned trial court has failed to give due 6 weight-age to the Gift-deed executed and registered by Amra and Smt. Sarju in favour of the defendant-appellant long back on 19.1.92 and the Gift-deed has not been challenged in the suit. It was also contended that in the suit, respondent No.2 Mishrilal has claimed his right in the property including right of seva pooja of Amra in the capacity of successor after his death but as Amarchand had already gifted his all property rights in favour of the appellant, therefore, Mishrilal is not entitled to inherit the property of Amarchand the respondent No.2 has totally failed to prove that right of Seva Pooja was automatically vested in him in existence of Gift-deed. It is pertinent to note that the defendant- appellant has filed counter claim for issuing injunction asserting his right on the bais of gift deed executed by late Amarchand and others but no reply to the counter claim has been filed and this fact has not been rebutted that the appellant is not in the line of successor, therefore, prima facie the appellant is having right to perform seva pooja until and unless gift deed is cancelled. The learned trial court while considering the prima facie case wrongly held at this stage that the Gift-deed is ineffective and Mishrilal is the successor of late Amarchand. It was argued that this was not the stage to determine the right of the parties as the suit was pending but ignoring important document i.e. registered gift-deed erroneously concluded the matter, therefore, the finding 7 is liable to be set aside. The learned counsel for the appellant also submitted that for granting TI , other requirements i.e. balance of convenience and irreparable loss were also not properly considered and wrongly held in favour of the plaintiff-applicants, therefore, the learned trial court has committed error in deciding these points in favour of the applicant-plaintiffs. Learned counsel for the appellant has also prayed that he is having a strong prima facie case in his favour. Late Amarchand gifted the right of worship and other properties in his favour and on that basis, the right from 1992, he is performing seva pooja and getting his share in the offerings. After the death of Amarchand, still he remains to perform seva pooja but the plaintiff-applicants, by hook and cook, want to restrain him from doing so. For that, he sought injunction against the plaintiff- applicants and prayed to grant temporary injunction but that was erroneously rejected. It was stated that right of worship is transferable right and late Amarchand, out of free will, had gifted his property in favour of the defendant-appellant. The learned counsel for the appellant, in support of his contentions, has placed reliance on the decisions the Apex Court in the case of (1) Mst. Raj Kali Kuer v. Ram Rattan Pandey (AIR 1955 SC 493), (2) Badri Nath and another v. Mst.Punna and others (AIR 1979 SC 1314) 8 and (3) PMA Metropolitan and others v. Moran Mar Marthoma and another (AIR 1995 SC 2001). On the above submissions, it was prayed that injunction order granted by the learned trial court may be quashed and set aside and the appeal may be allowed. The injunction order against the plaintiff-respondents may be issued entitling him to perform the seva pooja and get equal offerings. On the contrary, the learned counsel for the respondents refuted the contentions placed by the appellant and supported the order passed by the learned trial court. It was contended that on the basis of material available on record, the learned trial court has rightly come to the conclusion that after the death of Amarchand, on the basis of gift-deed, the appellant is not entitled to perform seva pooja and also not entitled to get equal share and receipts. It was also contended that right of seva pooja enjoyed by Amarchand was not transferable and in this way, the gift-deed executed in favour of the appellant is of no use, therefore, he was not entitled to interfere in the seva pooja. After considering the material available on record, the learned trial court has used its discretion that should be maintained and appeal may be dismissed. It was further contended that the plaintiffs have not been able to prove his case on the basis of gift-deed, therefore, he is not entitled for any sort of injunction. The learned trial court 9 has rightly rejected the prayer earlier. Learned counsel for the respondents, in support of his contentions, has placed reliance on the following authorities ;- (1) Kumar Tarkeshwar Roy v. Kumar Soshi Shikhreswar ( L.R. 1883 (X) Indian Appeals 51) (2) Purna Sashi Bhattacharji & others v. Kalidhan Rai Chowdhuri (L.R. 1911 (XXXVIII) Indian Appeals 112) (3) Smt. Kristoromoney Dosee v. Maharaj Norendra Krishna Bhadur (L.R. 1988 (XVI)Indian Appeals 29) (4) Mahamaya Devi v. Hari Das (AIR 1915 Cal. 161) (5) A.P.Joseph v. E.H.Joseph (AIR 1926 Rangoon 186) (6) Balmukund & another v. Tula Ram & others (AIR 1928 All. 721) (7) Manohar Mukherjee v. Bhupender Nath Mukerjee & others (AIR 1932 Cal.791) (8) Maharaj Dharam Narain v. Maharaj Suraj Narain (AIR 1941 Allahabad 01) (9) Zaharia Mal v. Parmeshri Das and another (AIR 1942 (29) Lahore 284) (10) Hanmappa Udandappa Pujari v. Hanmanigauda Pujari and others (AIR 1948 (35) Bombay 233) (11) Nand Lal and others v. Kesar Lal and others (AIR 1975 Raj.226). 10 (12) Mancha Ram v. Pranshankar (1882 ILR (VI) Bombay 298) I have considered the rival contentions of both the parties and perused the observations and conclusion drawn thereon by the learned trial court. The main point arises for consideration is whether in the given circumstances, the trialcourt has justified in granting temporary injunction in favour of the respondents. It is admitted fact that the suit is still pending before the learned trial court. In the suit, all the points are to be adjudicated. At present, the learned trial court was only dealt with the issuance of the temporary injunction order. The main dispute remains for consideration in the suit is whether after the death of Amarchand, the defendant-appellant is not entitled to perform seva pooja on the basis of gift-deed executed in his favour by Amarchand, which was registered on 19.1.1992. In my opinion, that issue will be decided only in the suit after due enquiry but from perusal of the order, it seems that the learned trial court while deciding the temporary injunction application, in para 11 of the impugned order, has held that the gift-deed is ineffective. Further more, in para 13 of the impugned order, the learned trial court has held that the defendant-appellant has not accrued any right of seva pooja on the basis of gift-deed. To my mind, this type of finding arrived at by the learned trial court is not fitness to the 11 present stage of the case. From the side of the defendant- appellant, it has been agitated that right of worship is transferable and he is also one of the successors of Amarchand, therefore, the entitlement on the basis of gift-deed is to be adjudicated. Prima facie, he has stated on the basis of the gift-deed that even when Amarchand was alive, he had been performing the seva pooja since 1992. The learned trial court while discussing prima facie case has not properly considered the right of seva pooja claimed to be accrued to Mishri Lal and further has not given due weightage to the contentions raised by the learned counsel for the appellant. From both the sides, number of citations have been placed in support of their contentions. The citation referred to by the learned counsel for the appellant are mostly of final adjudication but the matter is still pending, therefore, no conclusion can be drawn on those basis. The learned counsel for the appellant has also cited the authorities. In those authorities, it has been held that right of worship is transferable. Thus, on the basis of over-all above discussion without commenting anything on the merit of the case, the matter is pending before the learned trial court. The finding given by the learned trial court with regard to prima facie case in favour of the plaintiffs, is not sustainable. Likewise, the learned trial court has also decided other points in favour of the defendant-appellant but when the prima facie in 12 favour of the plaintiffs is not sustainable then findings on other points are not relevant. Contrary, the defendant-appellant has based his claim on the basis of the gift-deed executed on 19.1.1992 by late Amarchand and Smt. Sarju and that gift-deed is not under challenge before this Court, therefore, prima facie, he is having a better title to perform seva pooja and get equal share in offerings, for which, Amarchand was entitled too. It is also pertinent to note that on the basis of the gift-deed, after 1992 though Amarchand was alive at that time but the defendant- appellant was also one of the participants in the seva pooja, therefore, till disposal of the suit, the prevailing practice should be continued as usual. Any thing can be determined and rights of the parties are adjudicated only after producing/examining evidence. The appellant has also prayed before the learned trial court to grant temporary injunction against the plaintiffs not to restrain him from performing the seva pooja and his prayer has been rejected by the impugned order. Against that the contentions have been raised. Considering all these contentions, I find prima facie case in favour of the defendant-appellant. The balance of convenience and irreparable loss are also in his favour as the turn of seva pooja, as admitted by the parties, comes after every four years for a period of four months that is to be scheduled in the month of Falgun-2064 and Chetra-2065. 13 During the course of argument, the contentions were also raised with regard to other litigations pending between the parties but that has not been finalized and the matter is sub judice before the other competent courts, therefore, it is not desirable to make any comments on those issues. On the basis of the above discussion, thus, the temporary injunction order granted against the defendant- appellant not to interfere and receipt of offerings, is not sustainable and is liable to be quashed and to this extent, the defendant-appellant has been able to prove prima facie case in his favour that the plaintiff Udailal and defendant are also having joint rights to perform seva pooja. It is further seen that during pendency of the present suit, the turn came in the month of Bhadhwa, Asoj-2064. Under the impugned order of temporary injunction, the plaintiffs alone enjoyed the right of performing seva pooja and total receipt of offerings. Against that order, the appeal is filed and during initial stage of the appeal, it was agreed by the respondents at that time, that if the appellant will get success in appeal, they will voluntarily provide the next turn, that is to be scheduled in the month of Falgun and Chetra-2065 to the appellant without any hinderance or obstruction and interference. 14 Considering their undertaking and aforesaid contentions in the interest of justice, as per turns, the plaintiff-respondents and defendant-appellant were found jointly entitled to perform seva pooja as the plaintiffs have availed this right in the month of Bhadwa-Asoj of S.Y.2064, therefore, for the remaining period, i.e. Falgun and Chetra, the appellant is held to be entitled for exclusive performing the seva pooja and receipt of offerings. On the basis of the above discussion, the appeal is allowed and the impugned order passed by the learned trial court is quashed and set aside to the extent that plaintiff-respondents are exclusively entitled to perform seva pooja and receipt of offerings of Dhanok Mata's Temple during the period from Falgun- 2064 and Chetra-2065, which is scheduled to start from 22.2.2008 but the defendant-appellant is held exclusively entitled to perform seva pooja as per their undertaking given in the court. Accordingly, the injunction order is passed in favour of the defendant-appellant and against the plaintiff-respondents. It is directed that the respondents will not interfere or make objection in performing the seva pooja by the defendant-appellant. The defendant-appellant will assume the charge of seva pooja of Dhanok Mata's Temple, which is scheduled to start from 22.2.2008 and plaintiff-respondents and concerned persons will 15 maintain their co-operation in performing seva pooja peacefully. Looking to the facts and circumstances of the case, the learned trial court is hereby directed to expedite the matter positively before the next turn of seva pooja starts. The appeal is disposed of accordingly. No order as to costs. (MANAK MOHTA),J