Case: Ugamsingh &amp; Mishrimal Vs. Kesrimal &amp; Ors,

Temple or of the idol. We have earlier indicated the plaint averments in which there is no mention of the ownership of the Temple or the idol but that paragraphs 2 and 3 of the plaint merely gave a description of the Temple and the idol when it is averred that the idol was constructed and consecrated according to and by the followers of the Digamberi Sect and that the Plaintiffus and the other followers of the Digamberi sect have been performing Darshan, Prakshal and Poojan of the said deity in the said Temple for a considerable number of years past and really ever since the Temple was founded. There is therefore, force in the contention of Shri Gupte, learned Advocate for the Respondents that having regard to the concurrent findings of the Courts below that the idol was Nirakar (nacked) that there were no Chakshus, no Mukat, no Armlet, no Dhwajadand or no Kalash, would show that the idol was consecrated by the Digamberies. It was also held as had already been noticed that though it is not possible to say when the Temple was constructed and the idol consecrated it was an ancient Temple and that both the Digamberies and the Swetamberies worship the idol. It is not denied that while the Digamberies will not worship an idol which has Chakshus or which has clothes or Mukat, the Swetamberies would worship a Digamberi idol without these and hence the right to workship a Digamberi idol by both the sects is possible and indeed has been so held by all the Courts. Even the Defendants witnesses substantiate these finding. We would refer to only two of these witnesses. Shri Suwa Lal D. W. 4 even though he says that the Temple belonged to the Oswals in which he and his father has been performing Sewa for the last 30 or 35 years on behalf of the Oswals (Swetamberies) admitted that since he attained the age of discretion and upto the time of giving evidence he had never seen Adinathji wearing clothes, never saw the idol with eyes and had never seen Dhwajadand or Kalash on the Temple and does not know whether the idol belongs to Oswals or Saravagis (Digamberies). D. W. 3 Shri Pokhar a barber of Oswals also supports this witness, that the Digamberies had a right to worship is also borne out by Ex. 1 dated 23-12-49 which was a compromise entered into between Swetamberies and Digamberies at the time when the Swetamberies attempted to put Chakshus in the idol. No doubt this was an interim arrangement till the decision of a Civil Court adjudicating the respective rights, but there was never any question of either Sect not having the right to worship the idol by both the Sects. The dispute had arisen only as to whether Swetamberies can fix Chakshus in the idol. Exh. 1 states as follows:"We Panchas give this award that a dispute had arisen between the Swetamberies and Digamberies as Swetamberies recently fixed eyes on the idol. This new thing should not continue. These eyes should be removed. Digamberies have a right to perform Poojan so they can mark saffron Tiki and have Darshan and come back. Digamberies will not perform Prakshal, Poojan, Swetamberies will continue incurring expenses as usual. The idol shall remain nacked (Niraker)". The representatives of both Sects have signed this award, as a temporary measure agreeable to both the Sects, who indicated that they would press their rights in a Civil Court. Once the right of worship of the Digamberies is established there is little doubt that they are entitled to the injunction sought for by them against the Defendants Appellants from preventing them from worshipping or from interfering with that right by placing Chakshus in the idol, Dhwajadand, Kalash on the Temple. In view of these findings the further question that when once it has been found that the Swetamberies have the right of management and possession of the Temple there is a presumption of ownership under Section l10 of the Evidence Act does not arise nor is it relevant. It is no doubt contended by the Respondents Advocate that when consecration of an idol takes place the ownership of the Temple is in the idol and therefore, the question of presumption under Section l10 does not arise. It is again contended by Shri Desai that the moment it is held that it is not possible to come to a conclusion as to which Sect the idol belongs, as has been held by the Court below, the Respondents cannot be allowed to object to the Appellants worshipping the idol according to their tenets. This contention, however, in our view, ignores the rights of the Digamberies to worship in accordance with their tenets. If the contention of the learned Advocate for the Appellants is accepted it will be tantamount to holding that Digamberies have no right to worship as there would be denominal (denominational - Ed.) change in the idol if the Swetamberies are held to have the right to worship it according to their tenets by placing Chakshus in the idol or by errecting their Dhwajadand or Kalash over the Temple. 19. Lastly it is urged that the High Court ought not to have entertained the cross objection by extending the time for worship from 1 hour to 3 hours. In our view the directions of the High Court are not unreasonable nor do they in any way affect the right of the Respondents to worship because the directions clearly enable the Swetamberies who wish to worship the deity within that period without disturbing the Digamberies to be at liberty to do so and likewise it will be open to Digamberies to go and worship in the temple during the period it is kept open. In view of the acute controversy between these 2 Sects and their reluctance to arrive at an amicable settlement the directions given by the High Court are manifestly reasonable just and proper.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]It is clear therefore that a right to worship is a civil right, interference with which raises a dispute of a civil nature though as noticed earlier disputes which are in respect of rituals or ceremonies alone cannot be adjudicated by Civil Courts if they are not essentially connected with Civil rights of an individual or a sect on behalf of whom a suit is filed. In our view the contention of the learned Advocate for the Appellant to the maintainability of the suit is not well foundedThe Judgment in our view is not based solely on the result of personal inspection made by the Trial Judge, which inspection was for the purposes of understanding the evidence in the case and has been so used by the Trial Judge. We must, therefore, reject the contention of the learned Advocate for the Appellants that the finding in respect of the idol is vitiated. In this view it is not necessary to deal with any of the decisions referred to before usThe representatives of both Sects have signed this award, as a temporary measure agreeable to both the Sects, who indicated that they would press their rights in a Civil Court. Once the right of worship of the Digamberies is established there is little doubt that they are entitled to the injunction sought for by them against the Defendants Appellants from preventing them from worshipping or from interfering with that right by placing Chakshus in the idol, Dhwajadand, Kalash on the Temple. In view of these findings the further question that when once it has been found that the Swetamberies have the right of management and possession of the Temple there is a presumption of ownership under Section l10 of the Evidence Act does not arise nor is it relevant. It is no doubt contended by the Respondents Advocate that when consecration of an idol takes place the ownership of the Temple is in the idol and therefore, the question of presumption under Section l10 does not arise. It is again contended by Shri Desai that the moment it is held that it is not possible to come to a conclusion as to which Sect the idol belongs, as has been held by the Court below, the Respondents cannot be allowed to object to the Appellants worshipping the idol according to their tenets. This contention, however, in our view, ignores the rights of the Digamberies to worship in accordance with their tenets. If the contention of the learned Advocate for the Appellants is accepted it will be tantamount to holding that Digamberies have no right to worship as there would be denominal (denominational - Ed.) change in the idol if the Swetamberies are held to have the right to worship it according to their tenets by placing Chakshus in the idol or by errecting their Dhwajadand or Kalash over the Temple19. Lastly it is urged that the High Court ought not to have entertained the cross objection by extending the time for worship from 1 hour to 3 hours. In our view the directions of the High Court are not unreasonable nor do they in any way affect the right of the Respondents to worship because the directions clearly enable the Swetamberies who wish to worship the deity within that period without disturbing the Digamberies to be at liberty to do so and likewise it will be open to Digamberies to go and worship in the temple during the period it is kept open. In view of the acute controversy between these 2 Sects and their reluctance to arrive at an amicable settlement the directions given by the High Court are manifestly reasonable just and proper.