-1- IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION CIVIL CIVIL CIVIL APPLICATION NO.1693 OF 2007 APPLICATION NO.1693 OF 2007 APPLICATION NO.1693 OF 2007 IN IN IN SECOND SECOND SECOND APPEAL NO.937 OF 2007 APPEAL NO.937 OF 2007 APPEAL NO.937 OF 2007 Yeshwant Balwant Badave (since deceased by L.R.) & Ors. ...Applicants vs. Yogi Rajendra Shivacharya Guru Mahadling Swami Inamdar & Ors. ...Respondents Mr.P.K.Dhakephalkar Sr.Adv.i/b Mr.A.Y.Badave for the Applicants Mr.V.B.Naik with Mr.Alange for the Respondents No.1 to 5 and 10 to 12. CORAM: CORAM: CORAM: A.S.OKA,J. A.S.OKA,J. A.S.OKA,J. DATE DATE DATE : MARCH 4, 2008. : MARCH 4, 2008. : MARCH 4, 2008. P.C.: P.C.: P.C.: 1. Heard the learned Senior Counsel for the Applicants and the Advocate for Respondent Nos.1 to 5 and 10 to 12. Second Appeal has been admitted for final hearing. Second Appeal has been preferred by the original plaintiffs. A suit was filed by the Applicants/Appellants for injunction restraining the Respondent Nos.1 to 14 from obstructing their alleged right of performing Pooja, Archa, Abhishek, Dahi Bhat and other Poojas before Shri. Shambhu Mahadeo Amruteshwar and other deities of Shikhar Shingnapur Devsthan as the priests thereof and to receive the income from the same. The suit was contested by the various defendants. The Defendant No.17 who is claiming to be the owner of the temple supported the Applicants/appellants by filing the written statement. 2. The contesting Respondents/defendants contended that the first Respondent is the Mathadhipati of Bhandargriha -2- institution and the Defendant Nos.2 to 4 are assisting the first Defendant. According to the case of the first Respondent/first defendant, he is performing daily Pooja, Archa, Abhishek etc. and under his guidance defendant Nos.2 to 4 were having right of performing Pooja. It is contended that the Defendant Nos.5 to 12 are Lingayat Priests and they perform religious ceremonies of Lingayat community. 3. The trial court decreed the suit. The operative part of the decree of the trial court reads thus : "2) The defendant Nos.1 to 11 and 14 are hereby restrained permanently from causing any kind of obstruction to the plaintiffs’ exclusive right of performing Pooja, archa, dahibhat Pooja, abhishek and other Poojas etc. before deities Shri Shambhu Mahadeo, Amruteshwar and other deities of Shikhar Singanapur temple, Taluka Man to receive the income of the same as priests." . The first Appellate Court has reversed the decree and the suit filed by the Appellants/Applicants has been dismissed. Second Appeal is already admitted. This is an application for grant of interim relief. 4. The submission of the learned Senior Counsel for the Applicant/Appellant is that right from the year 1994 there was a temporary injunction operating in favour of the Applicants in terms of the decree passed by the trial court. He pointed out that the decree passed by the trial court was not stayed during the pendency of the Appeal in the District Court. Thus, the submission is that a prohibitory order in terms of -3- the decree passed by the trial court is operative against the respondents right from the year 1994. His submission is that as the Second Appeal has been admitted, the said arrangement which is continued from the year 1994, deserves to be continued till the final disposal of the Second Appeal. He pointed out that the defendant No.17 who is the owner of the temple has supported the Appellants. He submitted that there is documentary evidence on record to show that the Applicants/Appellants have exclusive right to perform pooja and to receive income as the priests. He, therefore, submitted that the interim injunction as prayed in this application be granted. 5. I have considered the submissions. According to the case of the Applicants/Appellants, they have exclusive right of performing pooja,archa, Abhishek etc. before the Deity Shambhu Mahadev and other Deities of Shikhar Shingnapur temple and to receive the income thereof as priests. 6. After consideration of oral and documentary evidence on record the Appellate Court has recorded a finding of fact that the Applicants/Appellants have failed to establish their exclusive right. 7. It will be necessary to refer to certain findings recorded by the Appellate Court. The Appellate court has considered the provisions of Bombay Hindu Places of Public Worship (Entry -4- Authorization) Act, 1956. The Appellate Court has referred to oral and documentary evidence on record. In paragraph 62 of the Judgment the Appellate Court has held thus: "62...It is to be mentioned here that though Shambhu Mahadev Devasthan is private Devasthan of defendant No.17, it is open to public. Therefore, every individual who are Hindu, have right to enter in the said temple and to perform Pooja, Archa or Abhishek as per their choice. Defendant No.17 is the owner of the said temple, but he has not prevented any person while performing Pooja, Archa Abhishek in the said temples. Plaintiffs are only performing Pooja, Archa as servant of the defendant No.17 as the word "servant" is used in the old ancient document. Therefore, it cannot be said that the provisions of said Act is not applicable to the Private Devasthan i.e. Devasthan of defendant No.17. Section 6 is prohibited from passing prohibitory decree or entertaining suit which is contrary to the provisions of the said Act. It appears from the evidence placed on record that Shambhu Mahadev Devasthan at Shikhar Shingnapur is Aradhya Daivat of Lingayat community and the persons of Lingayat community come from Maharashtra, Andhra Pradesh, Karnataka and other places. Defendants/Jangam are their Dharma Gurus and the people from Lingayat community are followers of Jangam i.e. defendants and they perform their Abhishek Pooja through -5- Jangam and they had faith on Jangam. If defendants are prevented then it will certainly violates the rights of people from Lingayat community and other to perform Pooja, Abhishek as per their choice from their Dharmaguru as provided under Article 25, 26 of Indian Constitution. Article 25 of the Indian Constitution provides freedom to every person is granted of conscience and the right of freely to provide and propagate religion subject for restriction laid down in clause 2 of the Articles. As per Article 26 of the Indian Constitution in religious denomination or a Section of it has the guaranteed right to establish or maintain institution for religious and charitable purposes and to manage in its own way all affairs in matters of religion. "Therefore, it cannot be said that defendants by encroaching upon right of the plaintiffs performing Pooja, Archa, Abhishek of the devotees who approaches them." In paragraph 64 the Appellate Court has held thus : "64. There is no dispute about law laid down by the Honourable High Court as well as Hon’ble Apex Court in the above quoted authorities. But in the case at hand, dispute is not in respect of worship or others, but in this case plaintiffs have claimed their exclusive right of performing Pooja, Archa of Devasthan and sought injunction to prevent defendants from encroaching upon -6- their right. Evidence placed on record indicates that defendants are Jangam and Guru of Lingayat community, and Aradhya Daivat of that community. Therefore, ratio of the above authority is not applicable to this case and the plaintiffs have no right to claim injunction against defendants. Learned trial court has not considered all such aspects in proper prospects and committed error in holding that plaintiffs have exclusive right to perform Pooja, Archa, Abhishek etc. in the Devasthan, which is liable to be set aside and impugned order is required to be interfered with..." 8. It must be noted here that while passing the decree in favour of the Applicants, in paragraph 117 of his Judgment, the learned trial Judge held as under : "117.Before concluding, I want to make it clear that this Judgment shall not affect the rights of the defendants to perform the Pooja, Archa etc. of Shambhu Mahadeo, Amruteshwar and other deities at Shingnapur like other individuals without claiming the right of priestship. I also make it clear that this judgment shall not affect the rights of defendant No.17 and in any Mankari during the Chaitra Yatra." 9. Even according to the case of the Applicants/Appellants the Defendant No.17 is the owner of the temple. The said defendant has not chosen to prefer any Appeal. After having -7- failed to establish their alleged exclusive right as regards performing pooja in the temple, the Applicants are not entitled to temporary injunction as prayed. 10. While claiming relief of temporary injunction, apart from the prima facie case, the Appellants have to establish necessary ingredient of irreparable loss. What has been denied to the Applicants is the exclusive right to act as priests. They are not deprived of right to perform pooja along with others. Assuming that there is a loss of income, that is something which can be always compensated in terms of money. It is stated that the defendant No.17 is the owner of the temple. If the owner of the temple has any grievance regarding the actions of any of the parties or regarding performance of pooja by any party, it is for him to take appropriate legal action. 11. After having failed to establish the exclusive right to act as priests, the Applicants are not entitled to temporary injunction. Application is accordingly rejected. 12. At this stage, the learned counsel for the Applicants prays for continuation of ad-interim relief granted by this court. The said request is opposed by the Advocate for Respondent Nos.1 to 5 and 10 to 12. 13. Considering the fact that the ad-interim relief granted -8- by this court is operating from 14th December 2007, the said relief will continue to operate for a period of 12 weeks from today. JUDGE JUDGE JUDGE