1 pps IN THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL APPELLATE JURISDICTION WRIT PETITION NO. 2484 OF 2011 Digambar Eknath Bhagwat ...Petitioner Versus Balkrishna Eknath Bhagwat since deceased through L.Rs Subhash Bhagwat & Ors. ...Respondents Mr.S.M.Gorwadkar for the Petitioner Mr.S.A.Kulkarni for the Respondent No.1A CORAM:- R.Y.GANOO, J. DATED:- 20th OCTOBER, 2011. P.C. 1. Rule. 2. The Court is informed that the respondent no.1A Subhash is the contesting respondent. In view of this statement, learned Advocate Mr.Kulkarni waives service on behalf of respondent no.1A who is present in the court. By consent, petition is taken up for hearing. 3. The father of the respondent no.1A had filed a suit in the Court of 2 Civil Judge, Junior Division at Sinnar being Regular Civil Suit No. 130 of 1989, concerning the deity in the nature of Samadhi, more particularly described in the plaint of the said suit. (Hereinafter referred to as said deity). It is common ground that the said deity is a family deity. . During the pendency of the suit original plaintiff Balkrishna, during his lifetime filed an application below Exhibit 122 seeking order in his favour that he should be appointed as Receiver in respect of the deity and the property of the deity. A similar application was made by the present respondent no.1A being application below Exhibit 125 for more or less the same reliefs. Those applications came to be rejected by the learned Civil Judge, Junior Division, Sinnar by Order dated 19.7.2003. Thereafter, Civil Misc. Appeal No.125 of 2003 was filed. The said appeal was filed by Balkrishna during his lifetime. During the pendency of the said appeal, Balkrishna expired. Therefore present respondent no.1A came on record as appellant. That Civil Misc. Appeal No.125 of 2003 was decided by the learned District Judge-5, Nashik by order dated 7.10.2008. The learned Civil Judge, Junior Division, Sinnar was directed to hear and dispose of the application at Exhibit 125 afresh, being application filed by the present respondent no.1A. 3 4. The learned Civil Judge, Junior Division, then presiding in Sinnar Court, decided the said application and it was rejected by order dated 20.7.2009. Being aggrieved by the said order dated 20.7.2009, the present respondent no.1A filed Misc. Civil Appeal No.95 of 2009. The learned District Judge-6, Nasik, to whom the aforesaid Misc. Civil Appeal No.95 of 2009 was assigned heard and disposed of the same by impugned order dated 26.11.2010. By the said order the present respondent no.1A was appointed as Court Receiver to take possession and custody of the suit deity and undertake its Management and worship, and proper maintenance till decision of the suit on merits. It was also ordered that the present respondent no. 1A in his capacity is entitled to take 20% of the income of the suit deity. Suit was also ordered to be disposed of by 31.12.2011. The petitioner was aggrieved by said order dated 26.11.2010 and has challenged the same in this petition. 5. With the Assistance of learned Advocates on both sides, I have perused the record. In the course of hearing, following facts are found to exist. 4 a) There exists a Samadi, more particularly described in the plaint. The said Samadhi is treated as deity. Religious poojas and ceremonies are being performed on day to day basis. b) The present petitioner is attending to the religious poojas and ceremonies in regard to the said deity for a long time. c) In the Samadhi temple there is a first floor in the nature of balcony. There is a proper approach to the said balcony. By standing in the said balcony one can overview what is happening on the ground floor. It is common ground that for whatever reasons and for whatever circumstances the present petitioner is occupying a portion of the balcony for last so many years. d) It is also a common ground that there are very few persons who visit the Samadhi for the purpose of praying on day to day basis. The record shows that there is no substantial offerings before the deity. e) There are moveable properties in the nature of utensils, ornaments, etc. There are various other properties of diverse description. These properties are owned by the deity. f) The deity is placed in a building with balcony. Surrounding the building immovable property exists as the property of deity. 5 6. It is noticed that on earlier occasions, steps were taken to appoint Mr.Harihar Bhagwat, the near relative of the petitioner as well as respondent no.1A to attend to the job of the Receiver. However, said Mr. Harihar did not show any specific interest. One person by name Mr.Joshi was also appointed to work as Receiver. However, he had tendered resignation. In substance whatever efforts were made in the past to appoint a person as Receiver did not materialize. A perusal of the impugned order goes to show that the learned District Judge, District Nasik was impressed by the fact that the efforts made in the past to appoint Receiver, other than the petitioner and respondent no. 1A as Receiver have failed. The learned District Judge appointed respondent no.1A as Receiver. It is the contention of the petitioner that he has been performing the pooja for a substantial long time. This contention is not seriously disputed by the respondent no.1A on the facts. It is noticed that the suit which is pending in the Court of Civil Judge, Junior Division, was filed in the year 1989. Looking to the nature of the suit, the suit can conveniently be disposed of within the span of 6 to 8 months from today. It is noted that by the impugned order dated 26.11.2010 the learned District Judge-6, Nasik 6 attempted to arrive at interim arrangement. He has also directed that the suit be disposed of by 31.12.2011. 7. I have considered the rival contentions. I am inclined to observe that the person who can work as Receiver has to perform functions as regards the protection of the deity, and protection of the properties which are owned by the deity. Question would be, whether by appointment of respondent no.1A as Court Receiver, whether he would automatically get right to perform pooja and other ceremonies. In the wake of the stand of the petitioner that he has been performing pooja, and attending to the ceremonies of deity for long time, I gave a thought to the matter and I found that balance can be arrived at by appointing respondent no.1A as Court Receiver in regard to the deity as well as the property of the deity and the petitioner who is performing the religious pooja and ceremonies for a long time can be permitted to do so under the orders of the court. It is to be noted that the present respondent no.1A is working in Security Press at Nasik. Even if it is accepted that the respondent no.1A has desire to perform the religious rituals as regards the deity it will be physically impossible for him to do so on a day to day basis. In such a 7 situation, in my view, it would be proper to confirm the appointment of respondent no.1A as Court Receiver of the deity as well as property of the deity with certain other orders in order to see that the job of Receiver is made convenient. The petitioner can be appointed as a poojari of deity in order to see that the pooja of the deity and the day to day religious affairs of the deity are attended to properly. This is also on the backdrop that the petitioner is residing at Village Devpur, Taluka Sinnar, District Nasik, where the deity is situated. 8. In order to arrive at balance situation, and as and by way of interim arrangement I am inclined to pass following order with various observations which will help the petitioner as well as the respondent no.1A to discharge their functions in the best possible manner in the respective capacities. 9. For the reasons mentioned aforesaid, following order is passed to dispose of this petition. This order is passed thereby substituting the order dated 26.10.2010 passed by the learned District Judge-6, Nasik. i) The respondent no.1A Subhash Bhagwat is appointed as 8 Court Receiver of the deity, more particularly described in the plaint and the property of the deity. The petitioner shall hand over the possession of the deity to respondent no.1A in his capacity as Court Receiver. The petitioner who is presently attending the pooja and the religious ceremonies shall also hand over all the movable and immovable properties of the deity to the respondent no.1A. However, such of the articles which will be required by the petitioner for the purpose of performing day to day religious activities and ceremonies shall be used by the petitioner. The petitioner and respondent no.1A shall carry out an inventory of the movable and immovable properties of the deity. This job will be performed on 3.11.2011. Said job will commence in the afternoon at about 2.00 p.m. and if it is not completed on the said day, it will have to be taken up on the next day at 2.00 p.m. The job of taking inventory as above shall be done in the presence of responsible officer working in the office of Civil Judge, Junior Division, Sinnar. Accordingly, learned Civil Judge, Junior Division, Sinnar, shall depute an Officer to perform the said job. After the inventory is carried out, the respondent no.1A shall hand over to the petitioner such of the 9 articles which may be necessary for performing the pooja and other ceremonies so that the petitioner would be able to perform the rituals and ceremonies on the day to day basis. On every first Sunday of the month, commencing from December 2011 the respondent no.1A shall have authority to conduct inventory of all movable and immovable properties of the deity. The petitioner shall co-operate with the Respondent No.1A for the said job. ii) The petitioner will be permitted to occupy the portion of the gallery as mentioned earlier and said occupation shall be without prejudice to the rights and contentions of all the parties to the suit. The rights in respect of the said occupation will be decided by the learned Judge in the main suit. Iii) The respondent no.1A in his capacity as Receiver of the deity shall be in possession of the said deity and the properties of the deity. It will be the responsibility of the respondent no. 1A to maintain the property of the deity and he shall take steps accordingly. The petitioner shall co-operate with the respondent 10 no.1A in that behalf. The expenses required for maintaining of the deity and the property of the deity shall be made by respondent no.1A in his capacity as Receiver of the deity. Respondent no.1A shall defray those expenses from his private funds. If some offerings or donations are received by the deity, it will be open for the respondent no.1A to use the part of said funds for the maintenance of the property of the deity. iv) The respondent no.1A shall arrange to put the locks as may be necessary to protect the property of the deity. A set of keys shall be kept by the respondent no.1A and another set will be provided to the petitioner to enable the petitioner to perform the day to day rituals and ceremonies. v) The respondent no.1A shall install offering box/boxes at appropriate place/s. The offerings in the nature of perishable articles shall be used and enjoyed by the petitioner . Offerings in the nature of cash, ornaments and other properties which can be termed as non perishable properties shall be collected by the respondent no.1A and due account of the same shall be 11 maintained. Till the disposal of the suit, he shall furnish to the Court of Civil Judge, Junior Division, Sinnar, District Nashik, monthly statement of accounts on or before 15th of every month. First statement to be filed on or before 15th December, 2011. vi) The respondent no.1A shall display the aforesaid arrangement at a conspicuous place in the temple so that the members of the public would be able to know the aforesaid arrangement. vii) The respondent no.1A is permitted to enter the sanctum/sanctorum by maintaining proper decorum. At the same time, he shall not interfere with the petitioner in performing day to day rituals and ceremonies which are to be performed by the petitioner. It is understood that the petitioner shall maintain each and every tradition of the deity. viii) Since the petitioner will be performing the rituals/ceremonies, the petitioner shall pay the bills pertaining to the electricity, water, from time to time. 12 ix) It is clarified that the aforesaid arrangement is arrived to see that the deity and property of the deity is protected as well as the day to day pooja and ceremonies are performed. The aforesaid arrangement is arrived at keeping in view the fact that the deity is the family deity of parties to the aforesaid suit. x) The parties to the suit are free to approach the Court of learned Civil Judge, Senior Division, Sinnar for implementation of this order, if there is any difficulty. xi) It is ordered that the Regular Civil Suit No.130 of 1989 presently pending on the file of the learned Civil Judge, Junior Division, at Sinnar, District Nasik shall be disposed of as expeditiously as possible and preferably by 31.5.2011. xii) There shall be no order as to costs. (R.Y.GANOO, J.) 13