Rajasthan High Court - Jodhpur
Jagdish Lal vs Ragunandan on 2 July, 2012
Author: Dinesh Maheshwari
Bench: Dinesh Maheshwari
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari
Alongwith three connected matters
[ 1 ]
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JODHPUR
:: J U D G M E N T ::
(1) LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari
S. B. CIVIL SECOND APPEAL NO. 94/1983
(2) LRs of Raghunandan Pujari Vs. LRs of Jagdish Lal Pujari .
S. B. CIVIL SECOND APPEAL NO. 119/1983
(3) LRs of Raghunandan Pujari Vs. The State of Rajasthan & Ors.
S.B. CIVIL WRIT PETITION NO. 1526/1988.
(4) LRs of Jagdish Lal Pujari Vs. The State of Rajasthan & Ors.
S.B. CIVIL WRIT PETITION NO. 1372/1997.
Date of Judgment :::: 2nd July 2012.
PRESENT
HON'BLE MR. JUSTICE DINESH MAHESHWARI
Mr. Sanjay Mathur, Mr.Harish Purohit,] for the LRs of Jagdish Lal
Mr. G. R. Bhari and Mr. Manoj Pareek] Pujari
Mr. R.R.Nagori, Senior Advocate with]
Mr. H.R.Pujari, Mr.Girish Joshi, ]
Mr. Alkesh Agarwal and Mr.Shyam ] for the LRs of Raghunandan
Kumawat ] Pujari
Mr. D.R.Bhandari ]
Mr. Sanwal Ram Chaudhary, for Devasthan Department.
Reportable BY THE COURT:
PRELIMINARY Introduction:
These four matters, two civil second appeals (Nos. 94/1983 and 119/1983) and two writ petitions (Nos. 1526/1988 and 1372/1997), being essentially of cross-cases between the rival parties and involving several inter-related facts and common issues, have been heard together; and are taken up for disposal by this common Judgment.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 2 ] The second appeals arise out of the civil suit filed on 15.12.1964 by the plaintiff Raghunandan for cancellation of gift deed dated 30.06.1964 executed by the defendant No.1 Bhoori Bai in favour of the defendant No.2 Jagdish Lal and for recovery of possession of suit property. This suit (CO No.210/1971) was decreed by the Additional Civil Judge, Udaipur by the judgment and decree dated 29.05.1976. The appeal filed by the defendant No.2 (Appeal No.22/1982) was party allowed by the District Judge, Udaipur by the impugned judgment and decree dated 04.04.1983 wherein the learned Appellate Court, even while affirming the findings of the Trial Court that the plaintiff Raghunandan Pujari was the validly adopted son of the defendant No. 1 Bhoori Bai, modified the finding in relation to the rights of the defendant No.1 Bhoori Bai in the suit property and, while recognising her rights per Section 14 of the Hindu Succession Act, 1956 ('the Act of 1956'), held the gift made by her in favour of the defendant No.2 valid to the extent of ½ share.
On the other hand, the writ petitions by the same contesting parties, Raghunandan Pujari and Jagdish Lal Pujari, arise out of the dispute between them over the rights of worship and receiving the offerings (herein referred to as 'sewa puja' rights) in the two temples at Udaipur known as Shri Raghunath Raiji temple and Shri Jeevan Swaroopji temple. The rotational turn for performing sewa puja by a particular pujari or shebait has been referred as 'osra'. In CWP No. 1526/1988, Raghunandan Pujari has challenged the order dated S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 3 ] 02.03.1988 as passed by the Deputy Secretary to the Government of Rajasthan in its Revenue Department wherein Jagdish Lal Pujari was held entitled to the sewa puja rights in the aforesaid temples. Per contra, in CWP No. 1372/1997, Jagdish Lal Pujari has prayed for quashing of the order dated 06.03.1997 as passed by the Deputy Secretary to the Government of Rajasthan in its Devasthan Department and for allowing him to continue with sewa puja in the said temples in pursuance of the earlier orders made in his favour on 16.11.1990 and 18.07.1995.
Representation of the parties - Substitution of the legal representatives Before proceeding further in these matters, it appears necessary to put the records straight so far the array of parties is concerned. It may be pointed out that the defendant No. 1 Smt. Bhoori Bai expired during the pendency of the suit and her daughter Smt. Moti Bai was substituted as the defendant in her place. The defendant No. 2 Jagdish Lal Pujari was the son of said Smt. Moti Bai. Smt. Moti Bai also expired during the pendency of the first appeal and that is how only Jagdish Lal Pujari and Raghunandan Pujari remained the contesting parties, who preferred these appeals and petitions. Both these contesting parties have also expired during the pendency of this litigation. Shri Jagdish Lal expired on 11.04.1998 whereas Shri Raghunandan expired on 26.03.2008. It is noticed that the legal representatives of late Shri Jagdish Lal have been substituted in the respective cases with orders on the S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 4 ] respective applications. However, in relation to late Shri Raghunandan, while the application for substitution of his legal representatives was considered and allowed in CWP No. 1526/1988 on 19.08.2008, but no corresponding application/s and order/s for substitution of his legal representatives are available in the records of CSA No. 119/1983 and CWP No. 1372/1997. Of course, an application for substitution of the legal representatives of the respondent Raghunandan (IA No. 5404/2008) is available in the record of CSA No. 94/1983 but it appears that orders thereupon have not been passed although, appearance was put on behalf of the legal representatives of Raghunandan in all the cases. For the reason that substitution has already been made in one of these connected cases; the parties are duly represented by their respective counsel; and no objection has been stated for substitution, in order to put the records straight, the application IA No. 5404/1998 is allowed for the purpose of all these connected cases; and the legal representatives of Raghunandan, as already substituted in CWP No. 1526/1988, stand substituted in the other matters as appellants or respondents, as the case may be.
THE OUTLINES:
Looking to a vast variety of facts involved in these matters, it appears appropriate to draw a brief sketch and outline of the cases at the outset.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 5 ] The basic dispute in these cases relates to the status and the right claimed by the plaintiff Raghunandan Pujari (the appellant in CSA No. 119/1983 and the petitioner in CWP No. 1526/1988), who asserted that he was taken in adoption by the defendant No. 1 Bhoori Bai on 31.08.1938 under the authority from, and as per the instructions of, her late husband, Sohan Lal. The opposite party Jagdish Lal Pujari (the appellant in CSA No. 94/1983 and the petitioner in CWP No. 1372/1997), who was the son of the daughter of Bhoori Bai and the defendant No. 2 in the suit, contested, along side Bhoori Bai, the claim as made by the plaintiff Raghunandan Pujari.
The rival claims in these four matters are : (1) the right of sewa puja as successor of Sohan Lal, husband of Bhoori Bai, in the said Shri Raghunath Raiji temple and Shri Jeevan Swaroopji temple; and (2) the right to the property left by Sohan Lal.
The said two subject temples viz., Shri Raghunath Raiji temple and Shri Jeewan Swaroopji temple at Udaipur were supervised by the erstwhile State of Mewar and, after formation of the State of Rajasthan, by the Devasthan Department of the Government of Rajasthan. The said Shri Sohan Lal, the husband of the defendant No.1 Bhoori Bai, had 1/4th share (3 months) in sewa puja at Shri Raghunath Raiji temple and 1/6th share (2 months) in sewa puja at Shri Jeewan Swaroopji temple.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 6 ] BRIEF BACKGROUND & FACTS:
Civil second appeals arising out of the suit for cancellation of gift deed and recovery of possession:
The civil suit leading to the present appeals was filed by the plaintiff Raghunandan on 15.12.1964 in the Court of Civil Judge, Udaipur and was later on transferred to the Court of Additional Civil Judge, Udaipur where it was registered as Civil Original Suit No. 210/1971. While arraying Smt. Bhoori Bai and Shri Jagdish Lal Pujari as the defendants Nos. 1 and 2 respectively, the plaintiff Raghunandan Pujari asserted in this suit that Shri Sohan Lal, husband of the defendant No.1 Bhoori Bai, expired on 28.08.1938; and, on 31.08.1938, the defendant No.1 took him in adoption in the name of her late husband and thus, he was having all the rights in the movable and immovable properties of Sohan Lal as his adopted son. In this suit, the plaintiff Raghunandan Pujari initially claimed two-fold reliefs: One, for cancellation of the gift deed dated 30.06.1964 as executed by the defendant No.1 Bhoori Bai in favour of the defendant No.2 Jagdish Lal Pujari in relation to the property left by late Shri Sohan Lal and for recovery of possession thereof;
and Second, for perpetual injunction that the defendant No. 1 should not interfere with his right to carry on sewa puja in the said two temples as the adopted son of herself and her husband Sohan Lal. However, during the pendency of the suit, an order came to be passed by the State Government on 24.03.1968 holding that the plaintiff was entitled to the right of sewa puja as adopted son of S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 7 ] Sohan Lal. Thereafter, the plaintiff, by way of an application for amendment, withdrew the pleadings and relief relating to the sewa puja rights. An averment was, of course, taken in the plaint that the question of his adoption had already been decided in favour of the plaintiff in an earlier decision as rendered in Civil Original Suit No. 144/1952 and then, the question was again decided in his favour in the State Government's order dated 23.04.1968. The plaintiff, thus, contended that the said decisions would operate as res judicata so far the question of adoption was concerned.
The defendants contested the suit essentially putting to contention the assertion about adoption of the plaintiff Raghunandan Pujari by the defendant No. 1 Bhoori Bai on 31.08.1938 after the demise of Sohan Lal on 28.08.1938; and the defendants also asserted that before the date of the alleged adoption, the property in question came vesting in Bhoori Bai and she could not have been divested of the same, rather she was in adverse possession thereof and became full owner with coming into force of the Act of 1956. It was also asserted that the plaintiff had never carried out sewa puja and it was the defendant No. 1 alone who was managing the sewa puja and continuing with the use and occupation of the property of Sohan Lal. It was also asserted that the defendant Bhoori Bai had the right to remove, and did remove, the plaintiff for not performing as per her instructions. The assertion about the findings in Civil Suit No. 144/1952 and in the Government's order dated 23.04.1968 S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 8 ] operating as res judicata was also denied.
The learned Trial Court, in its judgment and decree dated 29.05.1976, while rejecting all the major contentions of the defendants, held that the plaintiff was the validly adopted son of the defendant No. 1, who had no right to remove him; and the decision in Civil Suit No. 144/1952 would operate as res judicata. While also rejecting the claim of the defendant No. 1 about adverse possession and full ownership of the property in question, the learned Trial Court decreed the suit; and, while cancelling the disputed gift deed dated 30.06.1964, directed that the possession of the property in question be delivered to the plaintiff.
Aggrieved by the judgment and decree aforesaid, the defendant No.2 Jagdish Lal Pujari preferred an appeal that was considered and decided as Civil Appeal No. 22/1982 by the learned District Judge, Udaipur on 04.04.1983. The learned First Appellate Court, while endorsing all the other major findings of the learned Trial Court, did not agree on the finding about exclusive right of the plaintiff Raghunandan Pujari in the property in question; and, instead, held that the plaintiff Raghunandan Pujari and the defendant No. 1 Bhoori Bai were the co-owners thereof with Bhoori Bai getting such ownership right after coming into force of the Act of 1956, for being in possession of the property in lieu of her right of maintenance. Pursuant to this finding, the learned First Appellate Court modified the decree of the learned Trial Court in the manner S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 9 ] that the disputed gift deed dated 30.06.1964 was cancelled in relation to ½ share in the property in question and the plaintiff Raghunandan Pujari was held entitled to ½ share jointly with the appellant-defendant No. 2 Jagdish Lal Pujari.
Aggrieved by the judgment and decree dated 04.04.1983 as passed by the District Judge, Udaipur in Civil Appeal No. 22/1982, both the contesting parties, Jagdish Lal Pujari (the defendant No. 2) and so also Raghunandan Pujari (the plaintiff) have filed the respective second appeals, being taken up for disposal in this common judgment.
These appeals were considered for admission together on 07.08.1984 and were admitted, while formulating common substantial questions of law arising in the case, with the following order (as drawn in the file of CSA No. 94/1983):-
"Heard learned counsel.
This appeal as well as S. B. Civil Second Appeal No. 119 of 1983, Raghunandan V. Jagdish Lal arise out the judgment and decree dated April 4, 1983 of the District Judge, Udaipur passed in Civil Appeal No. 22 of 1982. S. B. Civil Second Appeal No. 119 of 1983 has been connected with this appeal.
The following substantial questions of law arise out of the judgment dated April 4, 1983 of the District Judge, Udaipur, which has been assailed by the respective parties in both the appeals:
(1) Whether on the facts and in the circumstances of the case, the learned District Judge was not right in holding that the Gift deed made by defendant No.1 Smt. Bhoori Bai (now dead) in favour of defendant No.2 Jagdish Lal is valid to the extent of half of the share of the property mentioned in the Gift deed?
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 10 ] If answer to this question is in the affirmative then what will be the effect in respect of the relief claimed by the plaintiff in the suit regarding the property in question? (2) Whether in the facts and circumstances of the case, the learned District Judge was right in holding while deciding issue No.6 that defendant No.2 Jagdish Lal and defendant No.1 Bhoori Bai (now dead) are joint and co- owners of the property in question?
If answer to this question is in the affirmative then what right the plaintiff has got in respect of the property? (3) Whether in the fact and circumstances of the case, the learned District Judge was not right in invoking the principles of res-judicata in respect of Ex.3 and not invoking it in regard to Ex.25?
No other substantial questions of law arise in this appeal as well as in S. B. Civil Second Appeal No. 119 of 1983.
Admit. Issue notice.
Mr. L. R. Mehta accepts notice on behalf of the respondent, hence, notice need not be issued to him." Writ petitions relating to the orders passed by the State Government / Devasthan Department on the right of sewa puja in the subject temples:
After having briefly noticed the aspects involved in the second appeals, it is worthwhile to similarly notice, in brief, the subject matter of the two writ petitions.
The first of them, CWP No. 1526/1988, was filed by Raghunandan assailing the order dated 02.03.1988 whereby the State Government proceeded to set aside the two earlier orders passed by the Commissioner, Devasthan: One, being the order dated 05.05.1983 (after the aforesaid decree of the First Appellate Court dated 04.04.1983) wherein his right of sewa puja in the temples aforesaid was recognised; and another being the order S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 11 ] dated 18.07.1986 whereby the review application filed by Jagdish Lal was rejected.
As noticed, the Government had earlier passed an order on 23.04.1968 in favour of Raghunandan upholding his right of sewa puja; and on the basis of this order dated 23.04.1968, he withdrew the relief claimed in the suit in regard to the sewa puja rights.
It shall be seen hereafter that there had been different orders passed by the Devasthan Department and the State Government regarding the contentious matter of sewa puja rights during the pendency of the suit and the appeals. However, coming to all these aspects later, it may be noticed that in this writ petition (No. 1526/1988), on 15.06.1988, as per the submissions made by the learned counsel for the contesting parties, this Court directed the Devasthan Commissioner to pass the appropriate orders for performing sewa puja in the said temples by the other co-sharers except Raghunandan and Jagdish Lal until final hearing of the stay application. Thereafter, on 01.11.1988, this Court granted stay over the impugned order dated 02.03.1988 but it was left open for the parties to approach the civil Court for any interim relief. It was, then, clarified by this Court on 03.11.1988 that the earlier order dated 15.06.1988 stood vacated.
It would be noticed that, thereafter, there had been a web of the proceedings before different Courts and forums wherein different orders were passed dealing with the tussle between Raghunandan S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 12 ] and Jagdish Lal about the sewa puja rights. For the present purpose, suffice is to notice that there was an order made on 16.11.1990 by the Commissioner, Devasthan holding Jagdish Lal entitled to perform sewa puja at the said temples but then, in view of subsequent orders passed by the Courts, the Commissioner, Devasthan directed, by his order dated 26.12.1992, that until adjudication by the Courts on the osra rights of Jagdish Lal, Raghunandan shall continue to perform sewa puja. However, the application for temporary injunction as filed by Raghunandan in the other suit between the parties was ultimately dismissed and such dismissal was maintained upto this Court with rejection of Revision Petition No. 517/1995 on 24.07.1995.
Jagdish Lal felt aggrieved of the position that even after rejection of the prayer for temporary injunction as made by Raghunandan, the order operating in his favour on the right to perform sewa puja was not being implemented and hence, he preferred a writ petition bearing number 542/1995 wherein this Court directed, on 20.02.1995, that Jagdish Lal would approach the Commissioner, Devasthan by filing a fresh application. Accordingly, Jagdish Lal did file an application; and the proceedings in this application led to an order dated 18.07.1995 by the Commissioner, Devasthan holding Jagdish Lal entitled to sewa puja rights. However, this order was over-ridden by an order passed by the Deputy Secretary to the Government in Devasthan Department on 06.03.1997 whereby stay was put over Jagdish Lal's right of sewa S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 13 ] puja from 10.03.1997. This order was, in fact, made on the prayer for interim relief in Revision Petition No. 12(8) as filed by Raghunandan against the aforesaid order dated 18.07.1995.
Aggrieved by the said order dated 06.03.1997, Jagdish Lal preferred another writ petition, which is being considered herein, bearing number 1372/1997. In this writ petition, Jagdish Lal has prayed for restraining Raghunandan to pursue the revision petition before the Secretary, Devasthan; for declaring the said order dated 06.03.1997 as illegal; and for allowing him to perform sewa puja, as per the rights vested in him under the orders dated 16.11.1990 and 18.07.1995.
In this writ petition, on 22.10.1997, this Court granted stay over the proceedings in the said revision petition bearing number 12 (8); and Jagdish Lal was allowed to perform sewa puja in the given osra, with the requirements that he shall maintain weekly statement of the offerings received in the said two temples and shall submit the osra statements from time to time. The petitioner Jagdish Lal was also put to undertaking to reimburse the person whose rights would be established to perform the puja, in case of this Court finding no right in him.
CHRONOLOGY OF THE FACTS AND MAJOR EVENTS:
After thus noticing in brief the facts, the backgrounds aspects and the subject matter of the appeals and the writ petitions, it is clear that broadly speaking, the issues before this Court in these matters S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 14 ] are in two major compartments: One, regarding legality and correctness of the findings in the judgment and decree dated 04.04.1983 as involved in the substantial questions of law formulated in the above quoted order dated 07.08.1984 and in the real points for determination arising therefrom; and Second, about the legality and validity of the orders passed by the State Government/Devasthan Department in the proceedings before them in regard to the competitive claims of Jagdish Lal and Raghunandan on the rights of sewa puja in the subject temples.
Before entering into the process of adjudication upon the several of the questions and issues raised in these matters in the long-drawn multiple arguments, it appears rather necessary to narrate the relevant facts, events, and orders, out of the chequered history of the litigation, in their feasible chronology, for a comprehension of the entire of the background. The same are, therefore, summaried as under:-
Date Facts/Events/Orders 28.08.1938: Shri Sohan Lal died leaving behind the wife Smt.
Bhoori Bai and a daughter Smt. Moti Bai. He had no male issue.
31.08.1938: Three days from the date of demise of Sohan Lal, his widow Smt. Bhoori Bai allegedly adopted the plaintiff Raghunandan, natural born son of Shri Chaturbhuj. About and Bhoori Bai allegedly moved the applications and around the made the statements in conformity with the factum of years 1938 and 1939 adoption.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 15 ] Date Facts/Events/Orders About the The differences allegedly arose between Bhoori Bai year 1940 and Raghunandan. Bhoori Bai made assertions against the alleged adoption; and also asserted that she was not interested in continuing with the adoption and was desirous of managing sewa puja herself.
21.08.1940: The Revenue minister of the State quoted that without any prejudice to the case of adoption, the Maharana of Mewar had vested the rights upon Raghunandan to perform sewa puja at the temples. Revenue minister also opined that as adoption in the case of Maufidars was complete only when sanction was accorded as desired under Circular Order and as prior to the sanction, the widow herself has denied the adoption of Raghunandan, the papers be filed.
20.08.1942: The Council passed a resolution in file No. 3:14 declaring (i) that Bhoori Bai will be entitled to appoint a nominee from her husband's Sapindas to perform sewa puja, after approval from the Government; and
(ii) that upon her demise, the question of her successor will be determined by the Government. Further it was stated that the arrangement made for nominee by Bhoori Bai will in no way affect the decision by the Government about the successors when the question would arise upon Bhoori Bai's death. The resolution was approved by Maharana on 21.08.1942 and by the Prime Minister on 22.08.1942.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 16 ] Date Facts/Events/Orders Year 1952 Raghunandan filed a civil suit bearing number 144/1952 in the Court of Additional Munsif, Udaipur for obtaining perpetual injunction against Bhoori Bai and one Bhagwati Lal so as to prevent any interference by Bhoori Bai and her nominees in his performing sewa puja while asserting his right as the adopted son of Sohan Lal. Bhoori Bai contested the suit and challenged the validity of the adoption. 20.03.1953: The Additional Munsif, Udaipur decreed the aforementioned suit while upholding the plea of the plaintiff about his adoption; and granted injunction against Bhoori Bai that she would not interfere in Raghunandan's sewa puja rights in the two temples. 31.10.1953: The appeal preferred by Bhoori Bai (Appeal No. 77/1953) was dismissed as barred by time.
06.04.1957: Notwithstanding the above order, the Revenue Secretary to the Government ordered that Bhoori Bai be treated as partner of Jagannathji Temple and be allowed to perform sewa puja in her lifetime. 30.06.1964: Bhoori Bai purported to give away the immovable properties to Jagdish Lal, her grandson i.e., her daughter's son, by way of the gift deed.
15.12.1964: Raghunandan filed the civil suit (C.O. No.210/71) leading to the present appeals asserting his rights as the adopted son of Bhoori Bai and challenging, inter alia, the aforesaid gift deed by Bhoori Bai in favour of Jagdish Lal. The defendants Bhoori Bai and Jagdish Lal challenged the claim of the plaintiff Raghunandan about his adoption; and also asserted Bhoori Bai's exclusive rights in the property in question.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 17 ] Date Facts/Events/Orders 20.02.1967: Bhoori Bai died during the pendency of the suit; and her daughter Moti Bai was substituted in her place (Moti Bai also died during the pendency of first appeal and thereby, only Jagdish Lal remained the contesting party).
01.06.1967: Jagdish Lal made an application claiming sewa puja rights but, the Assistant Commissioner, Devasthan, while rejecting his claim, decided that Raghunandan shall be allowed to continue with sewa puja.
19.09.1967: The Commissioner, Devasthan, however, modified the above order dated 01.06.1967 and held that the turn-wise puja rights shall be divided between the adopted son and daughter of the deceased Sohan Lal i.e., between Raghunandan and Smt Moti Bai. 23.04.1968: The Government disagreed with the order dated 19.09.1967, and held that the sewa puja rights of the temple shall devolve only upon the male heir i.e., upon Raghunandan and not Smt.Moti Bai.
29.05.1976: The civil suit filed by Raghunandan (No. 210/1971) was decreed by the Additional Civil Judge, Udaipur holding his adoption valid and cancelling the gift deed made by Bhoori Bai in favour of Jagdish Lal. Jagdish Lal preferred an appeal against this order before the District Judge, Udaipur.
07.07.1977: The State Government reviewed the order dated 23.04.1968 and held that the matter was pending before the District Judge, Udaipur and the decision taken therein will be treated as final.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 18 ] Date Facts/Events/Orders 14.10.1977: Jagdish Lal made an application before the Assistant Commissioner claiming sewa puja rights. The Assistant Commissioner made an interim arrangement that in the light of the order of the State Government dated 07.07.1977 and also in order to maintain smooth functioning of the temples, both Raghunandan and Jagdish Lal will be restrained from performing sewa puja in the said temples and some other pujaris will be performing sewa puja until the matter was decided by the District Judge. Year 1978 Feeling aggrieved by the above interim arrangement dated 14.10.1977, Raghunandan submitted the objections before the Assistant Commissioner; and thereafter, filed a writ petition before this Court, being S.B Civil Writ Petition No. 706/1978.
02.01.1979: In compliance of the interim orders of this Court, the Assistant Commissioner, Devasthan heard both the parties but reiterated the previous order dated 14.10.1977.
04.04.1983: Civil Appeal No. 22/1982 filed by Jagdish Lal was partly allowed. The District Judge, Udaipur upheld the validity of adoption but held that the gift of the property of Sohan Lal as made by Bhoori Bai in favour of Jagdish Lal shall be valid to extent of ½ share.
Raghunandan and Jagdish Lal preferred the present second appeals (Nos. 119/83 and 94/83) before this Court against the judgment and decree dated 04.04.1983.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 19 ] Date Facts/Events/Orders 05.05.1983: Pursuant to the judgment and decree dated 04.04.1983, the Commissioner, Devasthan allowed Raghunandan to perform sewa puja in place of Bhoori Bai.
19.07.1984: The aforesaid order dated 05.05.1983 was sought to be questioned by Jagdish Lal in a writ petition in this Court being S.B. Civil Writ Petition No. 1486/1983, which was dismissed summarily with the learned Single Judge holding that it was not shown as to how the petitioner's right had been affected by the order of the Devasthan Commissioner; and that the adoption might be in dispute but until the date, the finding of the District Judge was holding good and in view of the finding that Raghunandan was the adopted son of Bhoori Bai, he had the right to perform sewa puja in place of Bhoori Bai.
17.09.1984: The writ petition preferred by Raghunandan (No. 706/1978) came to be disposed of as infructuous with the following order:-
"It appears, the interim order was passed by Tribunal below; against which the petitioner moved this Court. In the meantime the suit has been disposed of. In that view of the matter the interim order cannot be sustained and cannot continue after disposal of the suit. The rule has therefore, infructous and there will be no order as to costs."
12.08.1985: Jagdish Lal filed a civil suit (C.O. No. 116/1985 = No.213/1996) before the District Judge, Udaipur for declaring him the sole legatee and inheritor and to grant him the sewa puja rights. He also prayed that Raghunandan be asked to submit the accounts of the offerings received by him pursuant to the direction of Devasthan Commissioner dated 05.05.1983.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 20 ] Date Facts/Events/Orders 26.09.1985: Special Appeal (No. 299/1984) filed by Jagdish Lal against the order dated 19.07.1984 in CWP No. 1486/1983 was dismissed with the Division Bench finding no infirmity in the order passed by the learned Single Judge. However, it was made clear that nothing said by the Division Bench would prejudicially affect the rights of the parties in the second appeal against the judgment and decree dated 04.04.1983.
28.06.1986: Raghunandan filed a civil suit (No. 258/1989) in the Court of Munsif, Udaipur City South for declaration and perpetual injunction with Commissioner, Devasthan as one of the defendants seeking the reliefs that he be declared hereditary pujari unaffected by the Staff Service Rules and the orders passed against him by the Commissioner, Devasthan be declared ineffective; that he be handed over charge upon his turn (osra); and that no interference be made in his sewa puja rights. 18.07.1986: Review application by Jagdish Lal for reviewing the order dated 05.05.1983 was rejected by the Commissioner, Devasthan.
29.09.1986: Second review application by Jagdish Lal was also rejected as not maintainable by the Commissioner, Devasthan.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 21 ] Date Facts/Events/Orders 02.03.1988: The Deputy Secretary to the Government in its Revenue Department issued an order to set aside the orders dated 05.05.1983 and 18.07.1986 and in effect, allowed Jagdish Lal to perform sewa puja in the said two temples. This order reads as under:-
"उपर क व षय म न रश स र लख ह क ज ल ए सत नय य ध#श न र%य दर 4.4.83 व रद र ) ह* पक र) द र उच. नय य लय, धपर म अप#ल र रख# ह आ भ# व . र ध# ह ज स अभ# त ई अनतम न र%य ह* ह प य ह । इसललय आप य %लय द र (क य) गए न र%य दर 5.5.83 ए 18.7.86 न रसत क य त ह ।
र स9 उच. नय य लय धपर अनतम न र%य
त यह न रश दरय त ह क गर*श ल ल प र*
भ# स . भर: *ब ई व ध स . श# स ह ल ल स -प:
ओसर (ठ र # श# गन 9 र य # ए श#
स रप बबह र* #) मदरर) म उत ह* समय त
स -प: ओसर स प अधध र दरय त ह ।"
17.03.l988: Raghunandan filed an application for temporary injunction (registered as Misc. Case No.8/1988) in the said suit filed by Jagdish Lal bearing No.116/1985) before the Additional District Judge, Udaipur for maintaining status quo.
10.05.1988: The application for temporary injunction as filed by Raghunandan was held maintainable.
25.05.1988: Revision petition (No. 227/1988) by Jagdish Lal in this Court against the said order dated 10.05.1988 was dismissed.
04.06.1988: The application for temporary injunction as filed by Raghunandan was disposed of with the order that no relief as prayed could be granted in the suit filed by Jagdish Lal.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 22 ] Date Facts/Events/Orders 13.06.1988 Raghunandan preferred the writ petition before this Court (CWP No. 1526/1988) assailing the aforesaid order dated 02.03.1988, inter alia, on the ground that the order was passed without any notice or opportunity of hearing to him.
15.06.1988: In the said writ petition (No.1526/1988), as per the submissions of the parties, this Court directed the Devasthan Commissioner to issue the order whereby both Raghunandan and Jagdish Lal shall not be permitted to perform sewa puja in the subject temples that shall be performed by other co-sharers until the stay application was heard and decided on merits and to take a weekly statement of 'Chadava & Bhent' (the offerings) from the co-sharers doing sewa puja without any effect on the rights of any party in the writ petition.
27.06.1988: The Assistant Commissioner passed an order that in pursuance of the order dated 20.06.1988 passed by the Commissioner, Devasthan and in the light of the directions given by this Court in CWP No. 1526/88, from 28.06.1988, Raghunandan shall hand over the charge of sewa puja to another co-sharer, Mohan Lal Pujari; and instructed submission of the accounts of offerings received regularly to his office. 01.11.1988: This Court granted stay in the said writ petition (No.1526/1988) over the impugned order dated 02.03.1988 passed by the State Government. It was left open for the parties to approach the civil Court for any interim relief.
03.11.1988: It was clarified by this Court that the earlier order dated 15.06.1988 stood vacated.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 23 ] Date Facts/Events/Orders 16.11.1990: The Commissioner, Devasthan held that Jagdish Lal shall be entitled to sewa puja at the aforesaid temples while observing, inter alia, that decision of sewa puja rights was not sought in the matter before the learned District Judge, and rather such relief was withdrawn and, therefore, the said decision (dated 04.04.1983) could not have been used for granting sewa puja rights. The learned Commissioner further observed that the orders dated 05.05.1983 and 18.07.1986 were mistakenly passed, which could be recalled at any time; that the orders passed by Mahrana were operating and pursuant thereto, proper it was to allow Jagdish Pujari the osra of Bhoori Bai. It was contended on behalf of Raghunandan that there was a stay order operating against the Government and, therefore, he be not relieved but the learned Commissioner observed that before the stay order, he had already been removed and Jagdish Lal being not a party before the Munsif, there was no prohibition in his sewa puja in the osra of Bhoori Bai. The Commissioner, therefore, ordered,-
".....श# गर*श ल ल प र* श# गन 9र य
# त9 सर बबह र* # A श# स ह ल ल
त9 उस A ब भर: *ब ई औसर प:
अधध र* ह स उस उ औसर A प: र
आरश पर क य त हD ।"
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 24 ] Date Facts/Events/Orders 26.12.1992: The Commissioner, Devasthan found that the suits of both the parties were pending in the Courts and the said order dated 16.11.1990 had been over- ridden by the orders of the Court; and hence ordered that until final decision by the Courts on the rights of Jagdish Lal, Raghunandan shall continue with sewa puja.
16.08.1993: Jagdish Lal preferred a writ petition (CWP No.3980/1993) which was disposed of by this Court directing the Revenue Commissioner, Jaipur to decide the issue by giving opportunity of hearing to both the parties within a period of two weeks after noticing that the petitioner had already filed a representation before the said Commissioner. 04.09.1993: Pursuant to the aforesaid order dated 16.08.1993, the Revenue Secretary, heard the petitioner Jagdish Lal and the Assistant Commissioner, Devasthan. The learned Secretary observed that although the petitioner projected before the High Court as if the proceedings were pending before the State Government but there was no provision of any appeal against the order passed by the Devasthan Commissioner before the State Government and in fact, no proceedings were pending before the Government.The learned Secretary further observed that when the matter was pending before the Court, there was no propriety in taking any decision on the administrative side. The Secretary disposed of the representation of Jagdish Lal while observing, inter alia, that there was no justification to interfere with the order passed by the Commissioner, Devasthan on 26.12.1992.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 25 ] Date Facts/Events/Orders 04.08.1994: The application for temporary injunction that had been filed by Raghunandan in the pending suit was dismissed by the Civil Court.
03.06.1995: Miscellaneous Appeal No. 57/1994 by Raghunandan challenging validity of the order dated 04.08.1994 was dismissed by the Additional District Judge No.1, Udaipur.
24.08.1995: S.B. Civil Revision Petition No. 517/1995 preferred by Raghunandan against the aforesaid orders was dismissed by this Court.
20.02.1995: Jagdish Lal preferred another writ petition (CWP No.542/1995) seeking implementation of the order of the Commissioner, Devasthan dated 16.11.1990 with the submissions, inter alia, that despite the prayer for interim relief as sought by Raghunandan having been declined by the Courts, the order of the Commissioner, Devasthan dated 16.11.1990 was not being made effective. This Court directed Jagdish Lal to approach the Commissioner Devasthan by filing a fresh application and documents within 10 days; whereafter the Commissioner was to decide his case in accordance with law.
Pursuant to this order, Jagdish Lal filed the fresh application before the Commissioner and Raghunandan filed the reply S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 26 ] Date Facts/Events/Orders 18.07.1995: The Commissioner, Devasthan took note of the facts about the earlier orders dated 16.11.1990 and 26.12.1992 and rejection of the prayer for interim reliefs as made by Raghunandan by the Civil Courts. The learned Commissioner found no impediment in implementation of the order dated 16.11.1990 and ordered thus:
" त%म म इस य %लय आरश दर 16.11.90
पर ह* भ# स9ग आरश ह* ह । ऐस# जस9नत म
दर 16.11.90 आरश पभ श#ल र म
ई : # अड. ह* ह । अत: श# गर*श
प र* द र पसतत आ र पत दर 2.3.95 आलश
रप स स # र क य त ह ए तत ल* आयक
र स9 दर 16.11.90 आरश अ स र श#
गर*श प र* ठ र # श# स रप बबह र* #
श# गन 9र य # ( गर*श मदरर) ओसर A
स -प: र आरश पर क य त हD त9 यह
आरश दरय त हD क ब- ब मदरर म श# गर*श
प र* ओसर आय तब-तब ओसर . % श#
गर*श प र* सप:र% क य । ................."
09.01.1996: The review application filed by Raghunandan against the order dated 18.07.1995 was rejected.
05.08.1996: Raghunandan preferred a revision application before the Secretary, Devasthan Department assailing the order dated 18.07.1995.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 27 ] Date Facts/Events/Orders 05.03.1997: The revision application [No.12(8)] was placed before the Deputy Secretary to the Government. Notice was issued to Jagdish Lal. The Deputy Secretary placed the matter before the Minister for Devasthan and listed it on 03.04.1997. No order was, however, passed in the revision petition. Then, Hukam Raj Advocate, son of Raghunandan, preferred another application before the Deputy Secretary to Government, seeking an interim order to restrain Jagdish Lal from performing sewa puja at the said two temples.
06.03.1997: The Deputy Secretary to Government accepted the prayer made on behalf of Raghunandan and passed the following order:-
"आ दर 6-3-97 न गर # त % Aल
श# ह मर ए प 9% पत इस आशय पश
क य ह क स न त H प र* श# रघ नर
औसर दर 10-3-97 स ए म ह आ ल
ह ज स अ ध.त ल भ श# गर*शल ल प र*
उठ स त ह । .:क उनह न गर # म श#
गर*शल ल A न यकक . Lत# र* हD अत: उस
ब र म उ A बहस स # गय# त9 उ प 9%
पत स # र र सह य आयक, र स9 ,
उरयपर यह न रश दरय त हD क श#
रघ नर प र* ए श# गर*शल ल प र* र )
पक र) अल शष त# प ररय) म स क स#
ए प र* ए म ह A अ धध ललय स -
प: र A वय स9 र । इस अ धध म प प
ह ल* भट .ढ सरककत रख A
वय स9 भ# र त क न गर # न र%य बर
प त वयकक यह स मग# त9 र र लश र*
स ..........."
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 28 ] Date Facts/Events/Orders 08.03.1997: The Assistant Commissioner, Devasthan passed the following order pursuant to the said order of the Deputy Secretary dated 06.03.1997:-
"उप श स सध. , र स9 , कU ए सन
लय र व भ ग, श स सध. लय, यपर उ
आरश कम प. 12(8) र /96/ दर 6-3-1997
द र श# गर*शल ल प र*, श# गर*श मदरर
दर 10-3-97 स आ ल* स प: ओसर पर
र लग र* ह । अत: दर 10-3-97 स श#
गर*शल ल स प: ओसर ह* दरय ।
यह स प: अनय प र* स र ई त9 भट
आदर A समसत र लश भट पट* म डल A
वय स9 A । क स# भ# प र A र लश ई
वयकक ह* ल इस ललय ह न यलमत सट U
A डयट
: * लग य । यदर ई अनय वयकक द र
र लश ल पय ग त ह र लश
अपहरर A सज म आ ग । ज स ललय मL
पर त त म%. र* ज ममर र ह)ग ।"
26.03.1997: After receiving the said order dated 08.03.1997 and a copy of the revision petition preferred by Raghunandan assailing validity and propriety of the order dated 18.07.1995 and a copy of application moved under Section 5 of the Limitation Act, Jagdish Lal preferred another writ petition (CWP No.1372/1997) before this Court for restraining Raghunandan to pursue the said revision petition [No. 12(8)] before the Devasthan Department, for declaring the aforesaid order dated 06.03.1997 as illegal and for setting it aside, and for allowing him the sewa puja rights as vested under the orders dated 16.11.1990 and 18.07.1995.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 29 ] Date Facts/Events/Orders 22.10.1997: After hearing the parties in the writ petition preferred by Jagdish Lal, this Court granted stay over the proceedings in the revision petition bearing number 12(8) Devasthan/96: Raghunandan Pujari v. Jagdish Lal. This Court allowed Jagdish Lal to perform sewa puja in osra and directed him to maintain weekly statement of 'Chadhava' and 'Bhent' given to him for performing sewa puja in the said two temples. Jagdish Lal was also instructed to submit the statement of osra to Court from time to time and to undertake to reimburse the person whose right would be established to perform the puja, in case it would be held that the petitioner (Jagdish Lal) has no right/title or interest to perform the puja. After having thus taken into comprehension the chronology of the facts and events having relevance in these matters, the questions involved in the appeals and the writ petitions could now be taken up for consideration.
CIVIL SECOND APPEALS ARISING OUT OF C.O. NO. 210/1971 Findings of the Trial Court-judgment and decree dated 29.05.1976 As noticed, the civil suit leading to these appeals was filed by Raghunandan asserting his rights as adopted son of Bhoori Bai. In this suit, the plaintiff Raghunandan initially claimed two-fold reliefs viz., for cancellation of the gift deed executed by Bhoori Bai in favour of Jagdish Lal; and for restraining her from interference in his sewa puja rights. However, the relief regarding sewa puja rights was S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 30 ] withdrawn in the wake of the order dated 23.04.1968 as passed by the State Government in favour of the plaintiff Raghunandan. The defendants contested the claim made by the plaintiff while questioning the assertions about adoption; and while also claiming that the property left by Sohan Lal came vesting in Bhoori Bai after the death of Sohan Lal and she was holding the same as full owner and hence, was entitled to alienate.
For determination of the questions involved in the case, the learned Trial Court framed and re-cast the relevant issues; and the matter was ultimately considered on the following issues:-
"1-कय मरई मर यल 0(1) द र ग र ललय हआ लड ह ?( र*)
2- कय र पत पनत र* 01 2 पक म क य ह, ह
ध ह ?( र*)
3- कय स त समपनत भकक भ ग र* ह* म \ग ह
इसललए र .ल य गय ह* ह ? (पनत र*)
4-कय प: % र 144 स ^ 52 एकडश ल मनसUA, उरयपर म र*
दर ल न षध ज A कडकA प प र त9 र* द र क स#
भ# प र अधध र स त अ9 समपनत भकक ह*
मग त9 अनय ई consequential सह यत ह* म ग
रर पसतत र .ल य गय ह* ह ? (पनत र*)
5-कय पनत र* सखय (1) स प: ए म ^ समपनत पर
व पर*त भकक (Adverse possession) ह ए म ^ र अ धध स पर पसतत क य गय ह? (पनत र*) 6-कय पनत दर # दहनर उतर धध र* अधधन यम प ध ) रर समपनत A प:र% लम # ह? (पनत0) 7- कय पनत दर # ग र म अ बनध) अ सर र* समपनत स न ष वषत र A अधध ररर# ह ? (पनत र*) 8-कय प: % न र%य र स0 144/52 ई 0 र*0 और र जय सर र न र%य दर0 23-4-68 द र ग र पश पक र) मधय रसजय:कड ट ह, इस रर र 01 न र%य A आ शय त ह* ह?
9-पनत र कय ह ?"
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 31 ] In issue No. 1, the learned Trial Court analysed the entire oral and documentary evidence on record and examined all the contentions urged by the parities, particularly those on behalf of the defendants against the factum and validity of adoption; and came to a categorical finding that Bhoori Bai had taken Raghunandan in adoption under the authority from, and instructions of, her husband Sohan Lal and that the adoption was not suffering from any illegality. In this issue, the learned Trial Court firstly referred to the primary evidence led by the plaintiff including the adoption deed Ex.1 and the statements made by the plaintiff himself as PW-1 and by his witnesses Shiv Narain as PW-2 and Maganlal as PW-3. Several objections raised by the defendants in this issue concerning the question of adoption were dealt with and decided against them.
It was urged on behalf of the defendants that the stamp paper of the alleged adoption deed was purchased on 01.09.1938 though the deed was bearing the date 31.08.1938 to which, the learned Trial Court accepted the explanation of the plaintiff that as per the evidence, the draft of the document had been prepared on 31.08.1938 but the stamp was purchased the next day; and the draft, as it was, scribed thereupon. The defendants also alleged that the contents of the document Ex.1 were camouflaged in the fashion that the specific word 'adoption' ('गeर') was not used therein so as to misrepresent the matter before Bhoori Bai. The learned Trial Court rejected this contention with reference to the evidence on record that S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 32 ] Bhoori Bai indeed moved the applications on 18.09.1938 (Ex.7) and on 20.09.1938 (Ex.9) before the concerned Department seeking permission for adoption; and made the statement on 09.08.1939 (Ex.17) wherein too, she accepted the factum of adoption of Raghunandan. The statement as made by the near relation of Bhoori Bai, Bhagwatilal (Ex.16), accepting the fact of adoption was also referred.
The other contention urged on behalf of the defendants that Raghunandan was the only son of Chaturbhuj and could not have been given in adoption was also dealt with and rejected with reference to the statements of Bhoori Bai and Maganlal about the custom in the family, permitting giving of the only son in adoption; and the fact that even Chaturbhuj (natural father of Raghunandan) himself was the only son of his father but went in adoption.
Yet another contention about the datta-hom ceremony having not been performed was also rejected with the finding that the same was not the essential requirement for the adoption in question. Similarly, the objection that the deed of permission for adoption was not registered though statutorily required under the Mewar Registeration Act was also rejected with the finding that oral permission was also permissible and no registration was requisite in case of such an oral permission.
With reference to the applications moved by Bhoori Bai and various statements made by her, the learned Trial Court found that S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 33 ] she had validly and willingly adopted Raghunandan and made the assertions in that regard but then, the differences cropped from the year 1940 and then, she started disowning the adoption. The learned Trial Court also referred to the question about permission from Mewar Government for such adoption as it related to sewa puja rights too and ultimately found that the Government left the question of adoption undecided while neither sanctioning the same nor disapproving. The observations of the learned Trial Court in this regard could be taken note of as under:-
" सतत: अपल 1940 ई 0 त भर: *ब ई रघ नर गर ल
तथय अस # र ह* क य बजल रघ नर गर
स # H नत भत : प: % म ड र जय स प प र ललए उस ई
ररख सत र* ज उललख पहल क य . ह। स क
पहल ह . ह, महकमह ख स म ड र जय स स -प:
A स # H नत श#मनत भर*ब ई ररख सत परश%-8 पर ररय
आरश स08607 दरय गय 9 ज सम सपषतय यह ह गय 9
क .तरभ लड रघ नर स हसब ररप ट% स म
ल A त मन र: * ह लक यह हकम ग र म मल म असर
प #र ह* समझ य। इस ब र भर: *ब ई इस आशय A
ररख सत पर क रघ नर ठi प र स स . र* ह*
रत ह और उसस (श#मनत भर: *ब ई स) अचj वय ह र ह*
रत ह इसललए मजनरर A स -प: रघ नर स ह* र ई
र रस : र क स# वयकक स रई य। महकमह ख स स
आरश परश% ए-17 आरश 0 13808 दर 28-8-42 अ सर
यह आरश दरय गय 9 क ( ) ब अप # मL र : ग# म
अखतय र ह क अप ख बबनर सवपनड) स क स# ए
प: र ललए म र% र र और ज स शखस ह म र
र उस A मन र: * ग म % नट स ह लसल A । ब और प:
र ल आपस म दहसस क स रर क स तरह स ल , ब
खर तय र । (ख) ब र U त ब ररस म र% र र
ललए इनत म क ब अप हय त म र तहत लम 01
रग#,ग म % नट श# म र% र र म क स# तरह स असर
प #र ह* ह ग स इस म कU ब मतलल र य% ह*
र और .तरभ भ# इस A इतल र र । इस प र यह
सपष ह क त त ल* म ड र जय द र भर: *ब ई द र रघ नर
गर ल पश अन रर%त j ड दरय गय 9 और त
उक ग र मन र: * र* गई 9# और उक ग र मन र:
क य गय 9 । इस तथय A पवष भत प
: : % म ड र जय lलसल
पसत त9 उस पर मह र र स हब A मन र: * स भ# सपष ह
क परश% ए-13 अ ल स प ट ह त ह।"
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 34 ] In the ultimate analysis, the learned Trial Court decided issue No.1 in favour of the plaintiff in the following:-
"प: mक स र व . अ स र यह भल* प र लसद ह क
श#मनत भर: *ब ई रघ नर र* अप पनत स ह ल ल A
इ त स ग र ललय 9 और उक ग र क स# प र भ# अ धत
स यक ह* ह। अत: इस व द न र%य र* पक म त9
पनत र* व रद क य त ह।"
It could at once be seen that issue No. 8 too had the co- relation with the question of adoption only. Therein, the point was as to whether issue No. 1 (regarding the question of adoption) was not required to be decided because the findings as rendered in Civil Original Suit No.144/1952 and those rendered by the State Government in its order dated 23.04.1968 would operate as res judicata. The learned Trial Court held that though the findings in the order dated 23.04.1968, being of an administrative order, would not operate as res judicata but the findings in the judgment dated 20.03.1953, as passed in the aforesaid civil suit (No.144/1952) would operate as res judicata wherein a specific issue was framed to the effect as to whether the plaintiff Raghunandan was taken in adoption by the widow of Sohan Lal (i.e., Bhoori Bai) in the following terms:-
"कय मरई सह लल A ब त र*ख 31-8-38 य
तर* स ग र रख और उस ग र रख अधध र 9 ?"
It was found by the learned Trial Court that in the said former suit, the question of adoption was directly and substantially in issue and was decided in favour of Raghunandan in the judgment dated 20.03.1953 (Ex.3); and then, the appeal preferred by Bhoori Bai was S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 35 ] dismissed on 31.10.1953 as being barred by limitation. The learned Trial Court also considered and rejected the contentions urged on behalf of the defendants that the Court deciding the former suit was lacking in jurisdiction; and about the difference in valuation and subject matter of the two suits. In regard to the orders referred to in this issue No.8, the findings of the learned Trial Court could be noticed as under:-
"स य पनत र* व द अधध क द र उदत इस व न र%य
अ स र यह सपष ह क प: % र और पसतत र म न र%य
आध र मखयत: इस बबनर पर न भ%र 9 क आय र* रघ नर
भर: *ब ई ध रप स ग र ललय 9 और उस स ह ल ल
धरत पत म स त ह ? यह पश पतयक ए त जत
रप स र ) ह* र) म सम रप स व . रर#य 9 । अत:
एकडश ल मजनसU, उरयपर न र%य दर 20-3-53 परश%-3
पक र मधय प ङनय य लसद नत) पर पभ र* ह ।"
................. ................ ....................
"र जय सर र उक न र%य ल पश सन दवष स महत
रखत ह और इसस पक र ब#. ग र पश न रर%त ह
ह* म स त कय)क ग र पश पक र मधय
दहनर व धध अ स र र* # नय य लय द र न र%य क य
य गय पश ह । अत: र जय सर र आरश दर. 23-4-68 परश%-
25 प ङनय य आध र पर पक र ब#. आबद र ह* ह
स त ।"
In issue No.8 in the present suit, the learned Trial Court even further took note of the fact that there had been two more civil suits filed by Shri Chaturbhuj, the natural father of Raghunandan, wherein the findings were rendered on the factum and validity of adoption. One of the them (Civil Suit No. 280 of Svt. 1999) had been against Bhoori Bai and Raghunandan for recovery of the amount spent on the last rites of Sohan Lal that was decided on 14.09.1945 (Ex.5) wherein the Court found that Raghunandan was liable as adopted S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 36 ] son of Sohan Lal; and wherein Bhoori Bai, despite having opportunity, failed to contest and failed to raise the issue regarding validity of adoption. The learned Trial Court held that the findings in the said suit would also operate as res judicata on the question of adoption. Another one had been the suit filed against Bhoori Bai for registration of the adoption deed that was decreed on Asad sud 13, Svt. 2000 (Ex.10). The learned Trial Court held that even if the findings in this suit would not be res judicata as Raghunandan was not a party therein nevertheless, such finding could also be accepted as judicial precedent.
Issue No. 7 in the present suit had the co-relation with adoption inasmuch as therein, the question was as to whether Bhoori Bai had the rights under the deed of adoption to remove out Raghunandan. The learned Trial Court referred to the evidence on record and also considered the principles available in the decision of the Privy Council in Kirshnamurthi Vs. Krishnamurthi: AIR 1927 Privy Council 139 as followed by this Court in Mst. Asa Bai Vs. Prabhulal:
1960 RLW 116, inter alia, to the effect that a valid adoption once made, could not be cancelled by the adoptive parent or other parties thereto. The learned Judge also observed that at the most, the deduction from the stipulation in the adoption deed could be to the extent that Raghunandan was not entitled to alienate the property in the life time of Bhoori Bai and was to use the property during her life time as per her instructions and permission but the recital was not to S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 37 ] the effect that Bhoori Bai could terminate the adoption whenever she liked and send Raghunandan back to his natural father. The learned Trial Court observed and concluded in this regard in favour of the plaintiff as under:-
"........ परश%-1 म श#मनत भर: *ब ई और .तरभ ब#. म वय स9 स # र A गई 9# उस अ9% म #य वप # Lजनसल द र पनतप दरत व धध जस9नत प: mक पर स04 अ सर अधध स अधध यह अ9% न ल स त ह क रघ नर व ध श#मत# भर: *ब ई # ल म उस A समपनत खर% बर% र अधध र ह* ह ग और भर: *ब ई # ल म ह उस समपनत उपभ ग भर: *ब ई A सल ह ए इ त स उस ह अ स र रग । परश%-14 ग र म म A गई वय स9 अ9% यह ह* न ल स त ह क श#मनत भर: *ब ई ब . ह तब रघ नर गर न रसत र स त# ह और रघ नर पस उस प H नत वपत घर भ स त# ह।
म #य वप # Lजनसल प: mक पनतप दरत लसद नत अ सर
इस प र A शत% ह* लग ई स त#। म #य वप #
Lजनसल व . र ध# म रम म ग र स 9-स 9 रतत
वपत द र न षप दरत लसयत म अ सर j यर र
धम %9% बक#स A गई 9# और j यर र परर र ब हर
वयककय) बक#स A गई 9# और j यर र म रतत वपत
A मतH य पय%नत और j यर र म रतत म त A मतH य
पय%नत रतत पत अधध र स9धगत रख गय । म #य
वप # Lजनसल रतत पत रतत वपत मत
# पय%नत उस अधध र) स9ग A वय स9 त ध
र र दरय लक प: mक बक#स अ ध र र दरय । अत: उक
व . अ स र परश%-1 ग र म A यह शत% क भर: *ब ई
रघ नर द र उस A . र* म .: र पर उस अप
प H नत वपत घर पस रखसत र स ग#, ध ह* म
स त और इस व द न र%य र* पक म त9
पनत र* व पक म क य त ह।"
Put in a nut shell, the findings of the learned Trial Court on the question of adoption and its corollary questions had been in favour of the plaintiff Raghunandan to the effect: that the plaintiff Raghunandan was indeed adopted by Bhoori Bai; that she had no right to remove him; and that the findings in Cvil Suit No. 144/1952 and so also the findings in Civil Suit No.280 of Svt. 1999 would operate as res judicata.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 38 ] In issue No.3, the learned Trial Court found the objection on the frame of the suit totally superfluous with reference to the plaint averments and the relief claimed. Issue No.4 had also been framed on the question of maintainability of the present suit for the plaintiff Raghunandan having asked only for the relief of perpetual injunction in the former suit bearing No.144/1952 and having not asked for the relief of recovery of possession of the suit property therein. The learned Trial Court found the objection, essentially based on the principles contained in Order II Rule 2 CPC, untenable with the observations that the former suit had been filed by the plaintiff Raghunandan only for perpetual injunction to the effect that the defendants, Bhoori Bai and Bhagwati Lal, may not interfere with his sewa puja rights; and at the relevant time, Bhoori Bai had not alienated the property in question to anyone and hence, the cause of action for the relief claimed in the present suit had not even arisen at the time of filing of the former suit.
Issues Nos. 5 and 6 had been framed in the matter on the pleas of the defendants regarding adverse possession of the defendant No. 1 over the suit property and the suit being barred by limitation; and that the defendant No. 1 became full owner of the property in question pursuant to the provisions of Section 14 of the Act of 1956. The learned Trial Court referred to the contentions urged on behalf of the defendants with reference to the orders passed by the erstwhile Mewar State and found that the State had S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 39 ] neither decided the question of successor of Sohan Lal nor the question of adoption of Raghunandan; and while reiterating the finding that Raghunandan was adopted by Bhoori Bai, observed that with adoption, Raghunandan became the son of Sohan Lal, and thereby, the person entitled to succeed to the property of Sohan Lal. The learned Trial Court further observed that before the Act of 1956, in the Mewar State, where the provisions like those of the Hindu Women's Right to Property Act, 1937 were not applicable, the widow had no right in the property of the Joint Hindu Family except that of residence and maintenance.
The learned Trial Court also dealt with the contention urged on behalf of the defendants that Bhoori Bai became full owner of the property in question after promulgation of the Act of 1956 and rejected the same with the observations that Sohan Lal expired in the year 1938 and in the same year, his widow Bhoori Bai took Raghunandan in adoption and thus, there was no occasion for the possession of Bhoori Bai culminating into full ownership because Raghunandan got substituted as adopted son of Sohan Lal before the Act of 1956.
The learned Trial Court referred to the decision of this Court in Rao Raja Tej Singh Vs. Hastimal: 1972 RLW 133 wherein this Court has held that the right of residence was not equivalent to the right of limited ownership and mere right of residence would not culminate into full ownership; and found that Bhoori Bai, who was residing in S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 40 ] the property of Sohan Lal had no other right except that of residence. The learned Trial Court further referred to the fact that the Devasthan Department by its order dated 18.02.1955 (Ex. 4) directed payment of an amount of Rs. 25/- per month by Raghunandan from the income received from sewa puja towards maintenance of Bhoori Bai for which, a contention was urged on behalf of the defendant that this amount was not withdrawn by Bhoori Bai even if deposited by Raghunandan in Devasthan Department. The learned Trial Court held that merely for Bhoori Bai not withdrawing the amount of maintenance, it could not be concluded that she had any other right in the property of Sohan Lal. Thus, the learned Trial Court rejected the contentions urged on behalf of the defendants and held that the possession of Bhoori Bai over the property in question could neither be taken as adverse possession nor as that of the owner. Accordingly, issues Nos. 5 and 6 were decided against the defendants.
As a result of the decision on the relevant issues aforesaid, the learned Trial Court held in issue No. 2 that the defendant No. 1 Bhoori Bai had no right to gift the property in question to the defendant No. 2 Jagdish Lal and hence, the gift deed could not be considered as valid. In the result, the learned Trial Court found the plaintiff entitled to the claimed relief and decreed the suit thus:
"अत: र* र पनत र*गर व रद कडकA क य र पनत र* सखय (1) द र पनत र* सखय (2) पक म न षप दरत S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 41 ] रज सटड% र -पत दर \ 30-6-1964 न रसत क य त ह और पनत र*गर आरश दरय त ह क र-पत पर सखय (8) म रर%त समपनत ब र मह अनरर र* लसपर% र र । इस पश त ^ र* नय य लय द र उक समपनत पर ब पनत र*गर स प प र अधध र* ह ग ।"
Aggrieved by the judgment and decree so passed by the learned Trial Court on 29.05.1976, the defendant Jagdish Lal preferred an appeal that was considered and decided by the learned District Judge, Udaipur by the impugned judgment and decree dated 04.04.1983.
Findings of the First Appellate Court - judgment and decree dated 04.04.1983 In appeal, again, several contentions were urged on behalf of the defendant-appellant in relation to issue No. 1 and particularly that the plaintiff had failed to establish that Bhoori Bai took him in adoption on 31.08.1938 or on any other date. It was also contended that performing of the essential ceremonies in relation to adoption and the act of giving and taking were not established. The learned Appellate Court found that the ceremony of dutta-hom was not required when the adopted son was of the same gotra as that of adoptive father; and rejected the contention of the defendant- appellant after finding that Raghunandan and Sohan Lal were of same gotra. The learned Appellate Court kept in view the fact that the evidence regarding adoption was adduced in the present case 26 years after the date of adoption; and referred to the statements of the plaintiff's witnesses affirming the factum of adoption and found no reason to disbelieve the evidence so adduced.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 42 ] The objection regarding want of registration of permission to adopt was also raised before the Appellate Court and was again rejected with the observations that the oral permission could also be granted that would require no registration. The objection that Raghunandan, as being the sole son of his natural father, could not have been given in adoption was also considered and rejected with reference to the evidence on family custom and to the law applicable. The contention regarding inconsistency in the date of adoption deed and date of stamp paper was also raised and the same was also rejected with reference to the plausible reasons assigned on behalf of the plaintiff. The learned Appellate Court also referred to the several of the applications and statements as made by Bhoori Bai (Exs. 7, 9 and 17) and so also several of the proceedings (Ex. A/9 and Ex. A/3) and again came to the conclusion, as had been that of the Trial Court, that Raghunandan was taken in adoption but later on Bhoori Bai attempted to disown the same for her displeasure; and that the Mewar Government had not finally decided the question of successor of Bhoori Bai. The conclusion of the learned First Appellate Court in issue No. 1 reads as under:-
"परश% ए-3 म भ# ग र रख तथय अस # र ह* क य
गय , यदवप उस उक ग र स म र पय स क य । ह त
पनत र* द र पसतत शष पलख) पश ह उ पलख) पढ
स भ# यह ह* ह स त क भर*ब ई रघ नर गर
ह* रख । उक पलख) पढ स यह तथय प ट ह त ह क
ग र रख j अरस ब र भर*ब ई रघ नर स अपसन ह
गई इलसललए उस उक ग र स म र पय स क य । उक
समसत य% दहय ए आरश) मD धय प: % पढ ऐस
म मल) म अनतम आरश र अधध र ल मह र र उरयपर
ह* 9 ज परश% ए-13 द र Lजनसल पसत दर
21-8-42 स # H त रतu हए यह अक त क य गय क व ध
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 43 ] A मतH य: पश त उतर धध र* समबनध म सर र न र%य पर ई पभ ह* पडग ज सस सपष ह क व ध उतर धध र* सबध म न र%य स9धगत रख गय 9 ।
भर*ब ई उक 9 ) ए अलभ 9 ) A र श # म यह ह*
म स त क उस र* ग र ह* रख । य गय
अलभभ ष अप#ल 9v A यह आपवत भ# सबल पत#त ह* ह त#।
उपर क व . अ स र व द कम ए समबनध
म य गय अलभभ ष अप#ल 9v द र उठ ई गई समसत आपवतय
स रह* ह त9 स # र क य य गय ह* ह। इस व द
न र%य य गय अध# स9 नय य लय उध.त ह, ज सम
हसतकप A ई ग: ईश पत#त ह* ह त#।"
A further contention was urged before the Appellate Court on issue No. 4 on the anvil of Order II Rule 2 of the Code of Civil Procedure that was also rejected with reference to the fact that at the time of filing of the earlier suit bearing number 144/1952 for perpetual injunction (Plaint Ex.11), the dispute concerning immovable property had not arisen and hence, the provisions of Order II Rule 2 CPC were not applicable.
Then, the findings on issue No. 8 on the question of res judicata were assailed on behalf of the defendant-appellant essentially on the contentions: (a) that the said suit bearing number 144/1952 was filed by the plaintiff playing a fraud wherefor, the decision stood vitiated; (b) that the decision in the former suit was rendered by the Court having no jurisdiction and hence, the defendant was not bound by the same; and (c) that the former suit was not properly valued in the plaint Ex. 11 at Rs. 2,000/- and then, the present suit having been valued at Rs. 2,562.50, the decision in the former suit was not res judicata.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 44 ] The learned Appellate Court rejected the contentions urged on behalf of the defendant-appellant about the alleged fraud by the plaintiff Raghunandan with the observations that in the former suit, the plaintiff had claimed perpetual injunction against Bhoori Bai and Bhagwati Lal on the ground that he was the adopted son of Sohan Lal and had the right to perform sewa puja in Shri Jagannath Raiji Temple on the turn of Sohan Lal and the defendants should not interfere therewith. The learned Appellate Court referred to the issue No. 1 as framed in the said suit on the question of adoption and the fact that the said issue was decided in favour of the plaintiff and against Bhoori Bai; and the further the fact that Bhoori Bai attempted to maintain an appeal before the District Judge, Udaipur but the same was dismissed on 31.10.1953 as being barred by limitation. The contention regarding the alleged fraud on the part of the plaintiff in the earlier suit was raised on the strength of the submissions that the correct facts concerning the orders as passed by the Mewar Government were not divulged in the earlier plaint. The learned Appellate Court found that the defendant Bhoori Bai did file a written statement (Ex. 12) in the said suit but did not raise any such objection about any alleged fraud on the part of the plaintiff Raghunandan. The learned Appellate Court further observed that even in the present suit also, no such pleading was taken about the alleged fraud in the former suit. The learned Appellate Court found S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 45 ] that the plaintiff had only pleaded in the former suit of the right of sewa puja having been given to him by Mahakama Khas of the Mewar Government and the contention regarding his having played a fraud was not correct. The learned First Appellate Court also rejected the other contentions about the want of jurisdiction with the learned Trial Court dealing with the former suit with reference to the law applicable; and so also that the subject matter of the earlier one and the present one were not materially and substantially the same with reference to the facts of the case, as already noticed hereinbefore.
In issue No. 8, the learned Appellate Court, of course, did not agree with the observations of the learned Trial Court about the effect and implication of the other two decisions (Ex. 5 and Ex. 10) but endorsed the finding that the judgment and decree as passed in the former suit bearing number 144/1952 operated as res judicata. Before the learned First Appellate Court, an application was moved by Jagdish Lal under Order XLI Rule 27 CPC whereby, the order passed by the Assistant Commissioner, Devasthan on 02.01.1979 was sought to be produced wherein it was decided that until decision by the Court, right of sewa puja would not be given to either of the contesting parties. The learned Appellate Court observed, while accepting the finding of the Trial Court, that the earlier order of the State Government dated 23.04.1968 (Ex. 25) would not operate as res judicata and in continuity thereof, observed that the order of the S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 46 ] Assistant Commissioner, Devasthan dated 02.01.1979 would also not be of any bearing on issue No. 8.
The finding on issue No. 7 was also endorsed by the learned Appellate Court after examining the contents of the adoption deed (Ex. 1) and the principles as stated by this Court in Mst.Asa Bai:
1960 RLW 116.
So far issue No. 5 is concerned, the learned Appellate Court rejected the claim of adverse possession after again observing that until promulgation of the Act of 1956, Bhoori Bai had only the limited right of maintenance and residence in the property of Sohan Lal but she was not in possession in her independent right and thus, she was not in adverse possession of the property in dispute. The learned first Appellate Court endorsed the finding of the Trial Court on issue No. 5 thus:
"श#मत# भर*ब ई द र रघ नर गर ल पश त
रघ नर स ह ल ल ध रप स पत ब गय 9
सLह ल ल A समपवत ह व धध अ सर
उतर धध र* ब गय । म ड र जय म दहनर : व ध
समपवत अधधन यम 1929 ल ग: ह* 9 दहनर : व ध
समपवत अधध र अधधन यम 1937 ल ग: ह* 9 अत:
दहनर : उतर धध र अधधन यम ल ग: ह स प: % त
स ह ल ल मत H A समपवत म व ध ल स#लमत
अधध र भरर प षर ए न स स9 9 ऐस#
अ स9 म भर*ब ई स ह ल ल A समपवत पर स तत रप
स न # हलसयत म बब ह* म # स त#। इ
पररजस9नतय) म भर*ब ई व र सपर समपवत पर
पनत : ल अधधपतय ह* म स त । इस समबनध म
य गय अध# स9 नय य लय न ष ष% उध.त ह त9
व द कम 5 न र%य अध# स9 नय य लय उध.त ह
त9 उसम हसतकप A ई ग: ईश पत#त ह* ह त#।"
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 47 ] The learned Appellate Court, thereafter, proceeded to take up the question as involved in issue No. 6, as to whether Bhoori Bai became full owner of the property in question after promulgation of the Act of 1956. The contention was urged on behalf of the defendant-appellant to the effect that Bhoori Bai was in possession of the property in question in her right of maintenance and residence and hence, she became full owner of the property in question by virtue of the Act of 1956. This contention was refuted on behalf of the plaintiff-respondent with the submissions that the burden of the maintenance of Bhoori Bai was on the osra, i.e., the turn in sewa puja of Sohan Lal and right of maintenance was not operating over the property in question. The documents Exs.A/10, A/17, A/13 and A/18 were referred by the learned Appellate Court and it was found that in the document Ex. A/10, the application dated 29.01.1940, Bhoori Bai asked for being handed over the osra for not having any other means of maintenance; that in the order dated 28.08.1942 (Ex. A/17), it was ordered that she might nominate any sapinda of her husband for sewa puja and obtain permission from the Government in that regard; and that same was the order by Maharana, Udaipur dated 21.08.1942 (Ex. A/12).
It may be observed that the Appellate Court also referred to the order dated 18.02.1955 (Ex.4) in its judgment but observed that thereby, the work of sewa puja in the osra of Sohan Lal was handed S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 48 ] over to Jagdish while directing him to deposit Rs.25/- per month and Jagdish deposited such amount as per the documents (Ex.19 to Ex.24); but there was no proof that Bhoori Bai withdrew any such amount. In these observations of the Appellate Court, the name of Jagdish has wrongly appeared because by the order dated 18.02.1955, it was Raghunandan, and not Jagdish Lal, who was handed over osra and was directed to deposit Rs.25/- per month and who did make such deposit, as taken note of by the learned Trial Court. However, it may be observed that at this stage, only the inconsistency in the judgment of the learned Appellate Court in regard to the narration from the order dated 18.02.1955 has been indicated. Whether it is of any implication or not shall be considered later at the appropriate stage, more particularly while dealing with substantial questions of law Nos.1 and 2. At this stage, the relevant findings in the impugned judgment dated 04.04.1983 may be noticed.
The learned First Appellate Court found that Bhoori Bai was in possession of the property in question before enforcement of the Act of 1956 in her right of maintenance and residence; and held that for being in possession against the right of maintenance, she became owner upon coming into force of the Act of 1956. The learned Appellate Court relied on the decision of this Court in Mool Kanwar Vs. Jeewalal & Anr.: AIR 1982 Raj. 267 and observed that the same principle was enunciated in the decision of the Hon'ble S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 49 ] Apex Court in Vaddeboyina Tulasamma & Ors. Vs. Vaddeboyina Sesha Reddi: AIR 1977 SC 1944.
Thus, the learned First Appellate Court concluded that Bhoori Bai, who was in possession of the property in question against her right of maintenance and residence, acquired the ownership pursuant to Section 14 of the Act of 1956 and hence, Raghunandan and Bhoori Bai became co-owners of the property in question. The learned First Appellate Court, therefore, altered the decision of the learned Trial Court on issue No. 6 as under:-
" स क मD उपर अक त र . ह: क श# रघ नर
भर*ब ई द र ग र ल ल पश त रघ नर स ह ल ल
A समपवत अधध र* ह गय । .:क उक समपवत पर
भर*ब ई भरर प षर न स अधध र पय ग
म अधधपतय 9 अत: दहनर : अतर धध र अधधन यम 1956
A ध र 14 अ स र भर*ब ई भ# उक समपवत A प:र%
स लम # ह गई इ पररजस9नतय) म उतर धध र
अधधन यम ल ग: ह पश त रघ नर और भर*ब ई
र ) व र सपर समपवत सह-स म# ह गय त9 र )
व र सपर समपवत म समभ ग ह गय । व द कम
6 न र%य य गय अध# स9 नय य लय उध.त ह* ह अत:
अप सत क ए य गय ह। व द कम 6 न र%य
इस प र क य त ह क व र सपर समपवत
समभ ग सह-स म# र* ए मत H भर*ब ई 9#।"
In view of the modification of the findings on issue No. 6, the learned Appellate Court partly allowed the appeal filed by the defendant, modified the decree of the Trial Court, and decreed the suit to the extent that Bhoori Bai was not having the right to gift ½ portion of the property in question; and cancelled the gift deed to that extent. The learned Appellate Court passed the modified decree as under:-
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 50 ] "Uल:स रप अप#ल अप#ल 9v आलश रप स स # र A त# ह। य गय अध# स9 नय य लय न र%य ए कडकA दर 29.5.76 अशत: अप सत क ए त ह ए पतय9v र* र अप#ल 9v पनत र*गर व रद इस हर त कडकA क य त ह क पनत र* सखय 1 भर*ब ई द र पनत र* सखय 2 गर*शल ल पक म न षप दरत रज सटड% र पत दर 30.6.64 ब बर ½ दहसस अ.ल समपवत रर%त .रर कम 8 रपत दर 30.6.64 न रसत क य त ह। अत: र* सयक रप स पनत र* कम 2 स 9 व रगसत समपवत ½ दहसस पर ब प अधध र* ह ग ।"
As noticed, the defendant Jagdish Lal and the plaintiff Raghunandan both felt dissatisfied with the decree so passed by the learned First Appellate Court and hence, preferred the present second appeals. On 07.08.1984, these appeals were heard together for admission and were admitted for consideration, while formulating three common substantial questions of law.
The formulated substantial questions of law and the real points arising for determination in the second appeals A few remarks appear necessary as a prelude to the determination of the questions arising in these appeals, particularly with reference to the substantial questions of law, as formulated. The formulated questions particularly relate to two major issues: One, regarding the right of Bhoori Bai qua the property in question and consequential validity of the gift deed dated 30.06.1964; and Second, regarding applicability of the principles of res judicata in regard to the judgment and decree of the civil Court dated 20.03.1953 (Ex. 3) and the order of the State Government dated 23.04.1968 (Ex. 25).
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 51 ] It has been noticed during the course of consideration of these appeals that question No. 2 as formulated does not rightly refer to the finding of the First Appellate Court in issue No. 6 where, in fact, the defendant No. 1 Bhoori Bai and the plaintiff Raghunandan were held to be the co-owners of the property in question; and not the co- defendants Jagdish Lal and Bhoori Bai, as appears in the phraseology of this question. Be that as it may, the aforesaid is essentially of a typographical error in question No.2. In substance, both the first two questions, i.e., question No. 1 and question No. 2, relate to the findings on issues Nos. 5 and 6 and on the rights of Bhoori Bai in the property in question; and the real point for determination in these questions is about the legality and validity of the findings on issues Nos. 5 and 6 and the consequential issue No. 2.
Before proceeding further, a pertinent aspect relating to question No. 3, as formulated, also needs to be pointed out. The question as formulated is: as to whether the learned District Judge was not right in invoking the principles of res judicata in respect of the judgment of the civil Court (Ex. 3) and not in regard to the order of the State Government (Ex. 25). It could at once be noticed from a look at the issues framed in the case and the findings as recorded by the subordinate Courts that the question concerning the principles of res judicata was considered and adjudicated in issue No. 8 only qua the question of adoption, the core matter of dispute. In fact, issue S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 52 ] No. 8 was to be the effect as to whether issue No. 1 was not required to be decided because of the principles of res judicata for the existing findings in Ex. 3 and Ex. 25. In issue No. 8, it has been concurrently held by the subordinate Courts that the decision in Civil Suit No. 144/1952 (Ex. 3) would operate as res judicata. The significant aspect of the matter, however, is that irrespective of the finding on issue No. 8, both the subordinate Courts have meticulously gone into the question of adoption in issue No. 1; and have returned an independent, but concurrent, finding in favour of the plaintiff; and have held that Raghunandan was validly adopted by Bhoori Bai under the authority and at the instructions of her husband Sohan Lal; and acquired the status of the adopted son of Sohan Lal. In view of the discussion in issue No. 1 and findings thereupon, it appears that the learned subordinate Courts did not attach much significance to the findings already existing in Ex. 3 and chose to examine the issue of adoption independently and on the basis of the evidence adduced in the present suit. They, of course, came to the same conclusion, as had been in the former suit, that Raghunandan was the validly adopted son of Bhoori Bai.
With the foregoing comments, the points for determination could now be taken up for consideration on the substantial questions of law as formulated, with the ancillary and co-related questions.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 53 ] Question No. 3- res judicata and the core question of adoption Having regard to the circumstances of the case and the question of adoption being the bone of contention in this age-old litigation, it appears appropriate to take up for consideration question No. 3 before the other two questions. On the question as formulated, the essential point for determination is as to whether the learned District Judge has rightly applied the principles of res judicata in regard to the judgment of the civil Court dated 20.03.1953 (Ex.3) and has erred in not applying the same in regard to the order of the State Government dated 23.04.1968 (Ex. 25)?
As already commented, the principles of res judicata were invoked in the present matter by the plaintiff with reference to the decision earlier rendered on the issue of adoption in his favour; but, irrespective of the question of res judicata, both the subordinate Courts have dealt with the question of adoption in issue No. 1.
Hereinbefore, the relevant and major parts of the findings of the learned Trial Court as also the learned First Appellate Court on issue No. 1 have been taken note of; and it is but apparent that after considering the entire oral and documentary evidence on record and analysing the same, the learned subordinate Courts have concurrently found that Raghunandan was a validly adopted son of Bhoori Bai and thereby, he became a validly adopted son of Sohan Lal, the husband of Bhoori Bai. The finding on issue No. 1, remains essentially a finding on facts and has concurrently been rendered in S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 54 ] favour of the plaintiff Raghunandan. Neither such finding has been put in any substantial question of law as formulated nor this Court finds any reason to take up re-assessment of such a concurrent finding on facts.
Once such finding on adoption, as independently rendered in the present suit in issue No. 1, is found to be final, then, even if it be held that any past decision [like the judgment and decree dated 20.03.1953 (Ex. 3)] was not res judicata on the question of adoption, the finding on issue No.1, as independently rendered by the subordinate Courts in the present suit, would remain unaffected.
In view of the above, this Court was inclined to hold that the question No. 3, as formulated, was not even involved as a substantial question of law in this case. However, in the interest of justice; and, for the question having been formulated in these old appeals, it appears appropriate to answer the same while dealing with the submissions made on behalf of the rivals.
The learned counsel appearing for the defendant Jagdish Lal Pujari has argued that the earlier judgment dated 20.03.1953 (Ex. 3) would not operate as res judicata for the reasons: (a) that the same was obtained by the plaintiff Raghunandan by playing fraud on the Court; (b) that the same was not that of a reasoned decision and was not in conformity with the requirements of Order XX Rules 4 & 5 S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 55 ] CPC; (c) that the same was a nullity for having been rendered against the existing law, particularly when the Firman issued by the then Maharana was that of law; and (d) that the suit was not maintainable before the civil Court in relation to the jagir or maufi property.
In order to support the contention that the earlier decision was obtained by fraud and hence would not be res judicata, the learned counsel has relied upon the decisions in the cases of S.P. Chengalvaraya Naidu Vs. Jagannath & Ors.: (1994) 1 SCC 1, Ashok Layland Ltd. Vs. State of Tamil Nadu & Anr. : 2004 AIR SCW 1001, United India Insurance Co. Ltd. Vs. Rajendra Singh & Ors. : (2000) 3 SCC 581, Asharfi Lal Vs. Koili: (1995) 4 SCC 163, and Hamza Haji Vs. State of Kerala & Anr.: 2006 AIR SCW 4168,.
In relation to the contention about non-application of mind or passing of the order without reasons, the learned counsel has relied upon the decisions in the cases of Notified Area Committee Vs. Additional Director, Consolidation & Ors.: (2002) 10 SCC 87, Cellular Operators Association of India & Ors. Vs. Union of India & Ors.: 2003 AIR SCW 366, Balraj Taneja & Anr. Vs. Sunil Madan & Anr.: AIR 1999 SC 3381, Smt. Swaran Lata Ghosh Vs. Harendra Kumar Banerjee & Anr. : AIR 1969 SC 1167, Aziz Wani Vs. Director Consolidation, Srinagar & Ors. : AIR 1971 Jammu and Kashmir 67, Aziz Ahmed Khan Vs. IA Patel : AIR 1974 Andhra Pradesh 1 (FB), Gurudas Biswas Vs. Charu Panna Seal : AIR 1977 Calcutta 110 S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 56 ] (FB), and Union of India Vs. Pramod Gupta : 2005 AIR SCW 4645 Further, in support of the arguments that the principle of res judicata would not be applicable when the decree is passed against existing law, the learned counsel has referred to the decisions in the cases of Tilkayat Shri Govindlalji Maharaj etc. Vs. State of Rajasthan & Ors.: AIR 1963 SC 1638, Madhaorao Phalke Vs. State of Madhya Bharat & Anr.: AIR 1961 SC 298, Sarwarlal Vs. The State of Hyderabad & Ors.: AIR 1960 SC 862, and The State of Madhya Pradesh Vs. Dadu Jagdish Prasad: 1971(3) SCC 804.
Yet further, in support of the argument that the suit was not maintainable before the civil Court in relation to jagir or maufi property and doctrine of res judicata would not apply to the decisions of the Court that was lacking in jurisdiction, the learned counsel has referred to the decisions in Umrao Singh Ajit Singhji Vs. Bhagwati Singh Balbir Singh & Ors.: AIR 1956 SC 15 and Sayyed Ali & Ors. Vs. Andhra Pradesh Wakf Board & Ors.:AIR 1998 SC 972.
The learned counsel for the defendant has even attempted to open the question of adoption and right of revocation of the adoptive mother with the submissions that the issue of adoption requires severe scrutiny of evidence and on slightest suspicion, the adoption may not be considered proved; and that the adoption could be revoked. For these submissions, the learned counsel has relied upon the decisions in the cases of Dal Bahadur Singh & Ors. Vs. Bijai Bahadur Singh & Ors.: AIR 1930 Privy Council 79, Padmalav S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 57 ] Achariya & Anr. Vs. Fakira Debya & Ors.: AIR 1931 Privy Council 84, Laxman Gapati Khot & Ors. Vs. Anusuyabai : AIR 1976 Bombay 264, Madan Lal Vs. Mst. Gopi & Anr.: AIR 1980 SC 1754, Jai Singh Vs. Shakuntala : 2002 AIR SCW 1280, Smt. Shanti Bai Vs. Smt. Miggo Devi & Ors.: AIR 1980 SC 2008 and Daniraiji Vrajlalji Vs. Maharaj Shri Chandraprabha : AIR 1975 SC 784.
The contentions that the issue of adoption requires thorough scrutiny of evidence and on slightest suspicion, the adoption may not be considered proved or that the adoption could be revoked, have only been noted to be rejected because, as aforesaid, the finding on the question of adoption of Raghunandan by Bhoori Bai is essentially a finding on facts concurrently rendered by the subordinate Courts and, for no substantial question of law having been formulated thereupon, this finding remains final; and there appears no reason to re-open the same. The decisions cited in regard to the question of adoption, therefore, need not be dilated upon.
The contentions urged on behalf of the defendant that the judgment dated 20.03.1953 would not operate as res judicata for having been obtained by the plaintiff Raghunandan by playing fraud on the Court, or for being not that of a reasoned decision, or for having been rendered against the existing law, or for the suit being not maintainable before the civil Court in relation to the jagir or maufi property, all remain baseless and must fail with reference to the contents of the said judgment dated 20.03.1953 and the law S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 58 ] applicable.
Appropriate it shall be at this juncture to dwell a bit deep into the judgment dated 20.03.1953 (Ex.3). The said suit (No. 144/1952) was filed by the plaintiff Raghunandan while asserting that he was the adopted son of Bhoori Bai and while stating the grievance that the defendants Bhoori Bai and Bhagwati Lal were seeking to interfere in his sewa puja rights in the said temples. Issue No.1 in the said suit was framed precisely on the question as to whether the plaintiff was validly taken in adoption by the widow of Sohan Lal on 31.08.1938 and she had the authority to do so. The learned Munsif examined the oral and documentary evidence and found that necessary ceremonies of adoption were established with the statements of Chaturbhuj PW-5 and Maganlal PW-1 apart from that of the plaintiff Raghunandan who deposed therein as PW-4. An argument was raised that the adoption by maufidar required the permission of Mewar Government to which, the learned Munsif observed that sewa puja was not as such that of a maufi; and then, it was not established that a person performing sewa puja, if taking anyone in adoption, required the permission of the Government. The learned Munsif further noticed the fact that the defendant Bhoori Bai did not appear in evidence. After considering the cumulative effect of the evidence as adduced by the plaintiff Raghunandan and as omitted to be produced by the defendant Bhoori Bai, the learned Munsif decided the said issue No.1 in favour of the plaintiff.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 59 ] The learned Munsif also considered the question of grant of relief of perpetual injunction against interference in sewa puja rights with reference to the statement of the witness produced by the defendant herself i.e., DW-3 Kasturchand who stated that Sohan Lal, Chaturbhuj, Bhagwati Lal and Amba Lal were the four Pujaris; and if any person was available from their family and was properly carrying out sewa puja, he alone would be entitled to do so and none other. With reference to the document Ex.D/1, it was suggested by the defendant that plaintiff was not performing sewa puja properly and upon such complaint, darbar (the ruler) made the order that the widow would manage sewa puja through a sapinda. The learned Trial Court observed that though such a case was pleaded in the written statement but it was not proved that the defendant No.1 Bhoori Bai was getting sewa puja performed through defendant No.2 Bhagwatilal under any authority from the Government or that she was interfering with the sewa puja rights of the plaintiff under any order of the Government. The learned Trial Court observed that even if permission was required, the defendant was not entitled to take any advantage of any such defect-in-title so as to interfere against the plaintiff. Another question was posed in issue No.5 as to whether defendant No.1 could not have taken the plaintiff in adoption without permission of the Mewar Government and hence, the adoption was invalid. This issue was also decided against the defendant with reference to the findings already recorded.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 60 ] Even the question of jurisdiction was raised by the defendant in the pleadings and, thus, issue No.3 was framed in the said suit No.144/1952 about the want of jurisdiction of the Trial Court but then, the learned Trial Court found that no such law was shown by the counsel for the defendant (Bhoori Bai) nor the said issue was pressed. In the result, the suit was decreed granting the relief of perpetual injunction against the defendants that they would not interfere in the plaintiff's rights of sewa puja.
Thus, in effect, all the points sought to be raised on behalf of the defendant in the present suit substantially stand answered in favour of the plaintiff Raghunandan in, and by virtue of, the said judgment dated 20.03.1953 (Ex.3).
Further, so far the argument that the decision dated 20.03.1953 is vitiated by fraud for the plaintiff Raghunandan not disclosing all the relevant orders truly before the Court is concerned, the learned First Appellate Court has rightly observed that such a plea remains baseless when the same was not raised by Bhoori Bai in the former suit though she had the opportunity to do so. Then, such a plea was not stated in the written statement in the present suit either. An attempt to raise a wholly new ground at the time of arguments before the Appellate Court cannot be countenanced.
Moreover, it appears that Raghunandan did plead and prove his case of adoption with reference to the various orders passed by S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 61 ] the competent authorities and various applications/statements made by Bhoori Bai herself. It is difficult to appreciate as to how and on what basis the plea of fraud has at all been raised. The decisions as referred by the learned counsel for the defendant in this regard have rather no application to the fact situation of the present case.
In the case of S.P. Chengalvaraya Naidu (supra), the facts were that Jagannath, the predecessor-in-interest of the respondents, was working with one Chunilal. The properties of the appellants were put in Court auction in execution of a decree obtained by Chunilal against the appellants; and Jagannath purchased the same on behalf of Chunilal. Jagannath, however, relinquished all his rights in favour of Chunilal by a release deed. In the meanwhile, the appellants paid off the decreetal amount to Chunilal. Despite such facts, Jagannath filed a suit for partition in relation to the said properties while concealing the facts regarding the said release deed and obtained a preliminary decree. The appellants came to know about the release deed by Jagannath only during the proceeding for final decree and questioned the proceedings on the ground that Jagannath had no right in the property in question; and preliminary decree was obtained by him by playing fraud. In such a fact situation, where the person concerned concealed the material document executed by himself that had a direct bearing on the professed rights that the Hon'ble Supreme Court found the proceedings vitiated by fraud.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 62 ] It is not a case here that Raghunandan concealed any document executed by himself that might have operated against his rights. In fact, what turns out in the present case is that Bhoori Bai, though adopted Raghunandan in the first place and made several statements in conformity of such adoption, got somehow unfavourably poised towards Raghunandan later and made some unsuccessful attempts to nullify the adoption. In the given circumstances, what Raghunandan did by filing the suit for perpetual injunction was only to protect his own rights with reference to the existing facts and applicable law. The plea of fraud remains rather too far-stretched in this case.
The matter involved in the case of United India Insurance Company (supra) had been yet another very peculiar one where two persons, father and son, were found to have played fraud in the manner that the injuries received by them in an altogether different incident and at different place were suggested as having been received in a vehicular accident involving the vehicle insured by the appellant company and on that basis, an award for compensation was obtained. Again, that had been a case of direct fraud with the claimant presenting a totally false claim. For an entirely different fact situation, this case too has no application to the present case.
The observations in the case of Asharfi Lal (supra) that a judgment or decree made in an earlier proceeding in which a minor was party, when relied upon in a subsequent proceeding, could be S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 63 ] avoided by the minor on ground of gross negligence on the part of his next friend of such a nature that an inference of fraud or collusion might be drawn, are, again, of entirely different context and principle, having no application to the present case.
The observations about fraud in the decision in Ashok Leyland (supra) occurred in the context of the powers of re-opening of the assessment under the State Sales Tax Act after arising of a conclusive proof per the fiction created by Section 6A of the Central Sales Tax Act; and in the context, it was observed that though the order passed under Section 6A(2) of the Central Act was not available for re-opening under Section 16 of the State Act but such a principle would not apply in relation to an order that had been obtained by commission of fraud. This case too has no application to the present matter.
Similarly, the observations in the Hamza Haji (supra) on the powers of the High Court to remedy any situation arising out of fraud in the writ proceedings under Article 226 of the Constitution of India have no applicability to the present matter.
In view of the above, the contention that the findings in the judgment dated 23.03.1953 (Ex. 3) are vitiated for any fraud is required to be, and is, rejected.
A bare look at the contents of the judgment dated 20.03.1953, as narrated hereinabove, is sufficient to reject the other submission that it did not conform to the requirements of Rules 4 & 5 of Order S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 64 ] XX CPC and that it suffered from want of reasons. The learned Munsif did deal with the evidence on record and stated the relevant reasons for the decision. Hence, the judgments and orders as referred to and relied upon by the learned counsel for the defendant in this regard in the cases of Notified Area Committee, Cellular Operators Association, Balraj Taneja, Smt. Swaran Lata Ghosh, Aziz Wani, Aziz Ahmed Khan, and Gurudas Biswas (supra) on the general and basic principles that cogent reasons must be assigned in any judicial adjudication, do not substantiate the contention that the judgment dated 20.03.1953 would not operate as res judicata. Similarly, the observation in the case of Pramod Gupta (supra) that res judicata would apply only when the lis was inter-parties and had attained finality; and would have no application in the case of the judgment having been passed by a Court having no jurisdiction and/or in a case involving pure question of law and also when the judgment is non-speaking, does not help the defendant in the present case for the contents of, and consideration in, the judgment dated 20.03.1953.
So far the question as raised that the judgment dated 20.03.1953 proceeded against existing law in the form of Firman of Manarana with reference to the decisions in Tilkayat Shri Govindlalji Maharaj, Madhaorao Phalke, Sarwarlal, and Dadu Jagdish Prasad (supra) is concerned, the submission remains untenable for the very basic finding already appearing in the present case as also in the S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 65 ] previous decision dated 20.03.1953 that no such order was passed by Maharana whereby the question of adoption was conclusively decided against Raghunandan. The learned subordinate Courts in the present case have also concurrently found, and rightly so, that the question of final decision on the question of adoption was rather left open. Thus, it cannot be said that the judgment dated 20.03.1953 proceeded against any law then existing. The cited decisions in this regard have rather no applicability to the facts of the present case and to the questions involved.
It may be observed that in one of the decisions cited by the learned counsel for the defendant in regard to the operation of Section 14 of the Act of 1956 i.e., Shakuntala Devi Vs. Kamla: 2005 AIR SCW 2203, the decree was found contrary to the existing law declared by the Hon'ble Supreme Court in V. Tulasamma's case (supra) and was held not attracting res judicata. The ratio of the said decision in Shakuntala Devi is also not of any help to the defendant on the question as to whether the decree dated 20.03.1953 operates as res judicata because, the same does not appear offending any existing law.
The submission with reference to the decisions in Umrao Singh Ajit Singhji and Sayyed Ali (supra) that the civil Court had no jurisdiction to deal with the question of sewa puja rights and hence, the judgment dated 20.03.1953 was without jurisdiction also remains untenable. It is not borne out as to how the civil Court was precluded S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 66 ] from dealing with the suit as filed by Raghunandan against Bhoori Bai and Bhagwati Lal for perpetual injunction against interference in his sewa puja rights. On the basic principles per Section 9 of the Code of Civil Procedure, the civil Court has the jurisdiction to try all the suits of civil nature unless their cognizance is barred either expressly or impliedly; and every presumption is made in favour of jurisdiction of the civil Court. As there appears nothing in the present case whereby the jurisdiction of the civil Court could be taken as barred, the judgment and decree as passed in Civil Suit No.144/1952 on 20.03.1953 cannot be considered suffering from want of jurisdiction. The findings therein do operate as res judicata.
During the course of hearing, the learned counsel for the defendant also made the submissions that the decree dated 20.03.1953 was never put to effect and in fact, the execution application lately filed by Raghunandan in its regard (Execution Case No.19/1998) was dismissed. In view of the submissions so made, the record of the said execution case was also requisitioned from the Court of Civil Judge (Junior Division), Udaipur City-South, Udaipur and has been examined.
It is noticed that in the said execution case, the learned Executing Court passed a detailed order on 29.08.2000 and observed that the proceedings were for execution of a decree of perpetual injunction; and the question of limitation had already been decided against the judgment-debtor. However, the Executing Court S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 67 ] further noticed that the decree-holder Raghunandan stood retired by the Devasthan Department; and a suit filed by him against the Devasthan Department was dismissed and the appeal before the High Court was also dismissed. In the meantime, upon demise of Jagdish Lal, his heir Basant Kumar was held entitled to osra by the Devasthan Department against which the decree-holder Raghunandan filed an appeal before the Secretary and obtained stay order that was challenged by the judgment-debtor before the High Court in a writ petition that resulted in grant of a stay order in favour of Jagdish Lal. The learned Executing Court further observed that another suit was pending between the judgment-debtor and decree-holder and the matter was also pending before the higher courts wherein the rights of sewa puja and osra were in question. The learned Executing Court also took note of the fact that in the interim order dated 22.10.1997, as passed in the writ petition, Jagdish Lal Pujari had been put to undertaking of restitution.
After noticing such facts and events, the learned Executing Court observed that although the decree dated 20.03.1953 had not been challenged nor there was any stay thereupon but, looking to the fact that in relation to the same dispute, the writ petition was pending and the suit was also pending, the execution was filed probably to bypass such pending litigations; and appropriate it would be to stay the proceedings in the execution case until the decision of other matters in which the rights of sewa puja were in question, so S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 68 ] as to avoid the likelihood of further complications. Hence, with reference to the provisions of Order XXI Rule 29 CPC, the learned Executing Court stayed the proceedings in the execution case pending the other litigations between the parties.
In fact, in view of this order dated 29.08.2000, the proceedings in the said execution case ought to have remained stayed until final decision of the present matters but then, it appears that the file of the said execution case was yet taken up on different dates and then, on 30.11.2002, the Executing Court, after finding that no order pursuant to the order dated 29.08.2000 had been produced and nobody was present for the decree-holder, proceeded to dismiss the case in default. It appears that an application was moved on behalf of Raghunandan for restoration with reference to the fact that the matter was still pending in the High Court but on 14.01.2004, such restoration application was also dismissed for want of appearance.
All said and done, nothing much turns upon this execution case so far the present appeals are concerned. It may, however, be observed that after passing of the order dated 29.08.2000, wherein the position was correctly assessed and the execution proceedings were rightly stayed pending other litigations including the present cases, unless the Executing Court found such cases having been decided, the proceedings ought to have remained in abeyance and the execution case could not have been dismissed for want of S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 69 ] presence. Be that as it may, so far the issues at hand are concerned, about the operation of the decree dated 20.03.1953 as res judicata, the proceedings in the execution case do not lend any support to the arguments advanced on behalf of the defendant. The decree had essentially been of perpetual injunction. Whether required to be executed or not, the findings in the judgment forming the basis of the decree are not lost; and would continue to operate as res judicata whenever would arise any occasion therefor.
In view of what has been discussed hereinabove, there appears no necessity of entering into the other points sought to be urged by the learned counsel for the plaintiff on the principle of res judicata with reference to the decisions of the Hon'ble Supreme Court in Ittyavira Mathai: AIR 1964 SC 907 and other cases. Suffice is to conclude that the judgment and decree dated 20.03.1953, as passed in Civil Suit No. 144/1952 wherein the question of adoption was specifically raised and decided between the parties, would operate as res judicata. The contentions as urged by the learned counsel for the defendant Jagdish Lal remain untenable and are rejected.
It may be observed that with the decision in Civil Suit No.144/1952 operating as res judicata, the issue already stood settled that Raghunandan was the validly adopted son of Bhoori Bai. In fact, in this scenario, it was not even necessary for the learned subordinate Courts to deal with and decide the question of adoption S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 70 ] over again in the present suit. Be that as it may, as noticed, the learned subordinate Courts have not stood on res judicata but have dealt with and decided the question of adoption in the present suit in issue No.1; and have recorded a cogent finding in favour of the plaintiff Raghunandan. Thus, in the ultimate analysis, what turns out is that the question of adoption has been twice over adjudicated upon and decided in favour of the plaintiff Raghunandan. It stands concluded, and rather re-enforced, that Raghunandan was the adopted son of Bhoori Bai and thereby, he became the adopted son of Sohan Lal; and was entitled to all the rights emanating from such status.
So far the question as to whether the decision of the Government dated 23.04.1968 (Ex. 25) operated as res judicata or not, this Court finds nothing of infirmity when the learned subordinate Courts have found the same not operating as res judicata. It is noticed that in those proceedings, the Assistant Commissioner Devasthan, the Commissioner Devasthan, and the Deputy Minister Devasthan, in their respective orders dated 01.06.1967, 19.09.1967, and 23.04.1968 definitely found that Raghunandan was the adopted son of Sohan Lal. The subordinate Courts have declined to hold the order Ex.25 operating as res judicata for the proceedings being administrative in nature. Even if the said proceedings are taken to be quasi-judicial in nature, the fact remains that therein, Raghunandan was taken as the adopted son essentially with S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 71 ] reference to the finding in the former suit. The learned authorities of the Devasthan Department had otherwise no independent jurisdiction to pronounce finally on the question of adoption. The order passed in such proceedings before the Devasthan Department could not have been taken as res judicata for the purpose of the present suit.
Question No. 3 as formulated in these appeals stands answered accordingly.
Questions Nos.1 & 2 - Rights of Bhoori Bai in the property in question and validity of gift made by her As observed, the question No. 2 as formulated does not rightly refer to the finding of the First Appellate Court in issue No. 6 where, in fact, the defendant No. 1 Bhoori Bai and the plaintiff Raghunandan were held to be co-owners of the property in question and not the co- defendants Jagdish Lal and Bhoori Bai. However, this one appears to be a typographical error only; and in substance, both question No. 1 and question No. 2 relate to the findings on issues Nos. 5, 6, and 2; and the real points for determination in questions Nos. 1 and 2 as formulated in these appeals are on the rights of Bhoori Bai qua the property in question and consequently, on the validity of the gift deed executed by her in favour of Jagdish Lal.
The learned counsel for the plaintiff Raghunandan has argued that after adoption, Bhoori Bai was divested her rights as the adoption related back to her husband's death on 28.08.1938. In this S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 72 ] connection, the learned counsel has placed reliance on the decisions in Srinivas Krishnarao Kango Vs. Narayan Devji Kango & Ors.: AIR 1954 SC 379 and Krishnamurthi Vasudeorao Deshpande & Anr. Vs.Dhruwaraj: AIR 1962 SC 59. The learned counsel contended that Bhoori Bai never had the co-ownership of the property in question; that since the adoption related back to the date of death of her husband Sohan Lal, there was no question of joint ownership; and the plaintiff Raghunandan was the sole owner. On the applicability of Section 14 (1) of the Act of 1956, the learned counsel contended that the possession of Bhoori Bai was not in lieu of maintenance. The learned counsel submitted that as per the record and documents produced (Ex.19 to Ex.24), it is clear that Bhoori Bai was getting maintenance and her only right in the property in question was that of residence. Thus, according to the learned counsel for the plaintiff, Section 14(2) of the Act of 1956 would apply and not Section 14(1). The learned counsel has placed reliance on the decisions in Ram Vishal & Ors. Vs. Jagan Nath & Anr.: (2004) 9 SCC 302 and G.Rama Vs. T.G.Seshagiri Rao: 2008 (3) CCC 306 (SC). The learned counsel has also contended that it was for Bhoori Bai to plead and prove that her possession was in lieu of maintenance; and this burden has not been discharged by her.
Per contra, the learned counsel for the defendant has argued that after coming into force the Act of 1956, widow got the absolute ownership of the property that was in her possession because of the S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 73 ] enlarged right granted per Section 14 (1). The learned counsel contended that in the present case, Bhoori Bai, widow of Sohan Lal, was in possession of the property of Sohan Lal since 28.08.1938 i.e., the date of death of Sohan Lal; and, therefore, entire property vested in her and the gift made by her was perfectly legal. The learned counsel has placed reliance on the decisions in Punithavallli Ammal Vs. Minor Ramalingam & Anr.: AIR 1970 SC 1730, Shakuntala Devi Vs. Kamla & Ors.: 2005 AIR SCW 2203, and Subhan Rao & Ors. Vs. Parvathi Bai & Ors.: 2010 AIR SCW 5730.
After having considered the rival submissions with reference to the record of the case and the law applicable, this Court is not persuaded to consider interference in the findings of the learned District Judge in the impugned judgment dated 04.04.1983; and the substantial questions of law Nos.1 and 2 as formulated in this case deserve to be answered accordingly.
So far issue No.5 is concerned, the learned subordinate Courts have concurrently found, and rightly so, that before the enforcement of the Act of 1956, with the Hindu Law of Inheritance (Amendment) Act, 1929 and Hindu Women's Right to Property Act, 1937 being not applicable in the area in question, the widow had no other right in the property of the Joint Hindu Family except that of residence and maintenance. It has also rightly been found, as argued on behalf of the plaintiff too, that the adoption would relate back to the date of demise of Sohan Lal. The fact that Bhoori Bai S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 74 ] had continued in possession of the property in question seems to have not been disputed much. However, it is difficult to find if Bhoori Bai's possession was adverse to Raghunandan or that she acquired the absolute rights in the property for any such alleged adverse possession. Before coming into force of the Act of 1956, Bhoori Bai was neither having the character of full owner of the property nor is shown to have asserted any such full ownership right hostile to Raghunandan to the extent that it would have culminated into acquisition of title. Then, relevant it is to notice that the Act of 1956 came into force on 17.06.1956 and the present suit itself was filed on 15.12.1964. The suit was neither barred by limitation nor Bhoori Bai had acquired any right by adverse possession.
Coming to the question of the extent of the right acquired by Bhoori Bai qua the property in question, it is noticed that the learned Trial Court relied upon the decision of this Court in Rao Raja Tej Singh (supra) to hold that mere right of residence was not equivalent to the right of limited ownership and mere right of residence would not culminate into the full ownership. The learned Trial Court further referred to the fact that the provision was made by the Devasthan Department for payment of maintenance to Bhoori Bai out of the offerings received in sewa puja at the subject temples. The learned Trial Court observed that even if Bhoori Bai did not withdraw such amount towards maintenance, it could not be concluded that she had any right in the property of Sohan Lal. The learned Appellate Court, S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 75 ] however, disagreed with the findings of the learned Trial Court in this regard, of course, with an incorrect observation as if Jagdish Lal was handed over osra by the order dated 18.02.1955 (Ex.4) and was called upon to deposit Rs.25/- per month. As noticed, the said order dated 18.02.1955 was in relation to Raghunandan. However, the relevant aspect for the present purpose is that the submissions of the plaintiff that burden of maintenance of Bhoori Bai was on the osra; and right of maintenance was not operating over the property in question, were rejected by the learned Appellate Court, inter alia, with reference to the fact that Bhoori Bai did not withdraw any such amount deposited in Devasthan Department out of the offerings received in osra. The learned Appellate Court, in the circumstances, found that Bhoori Bai was in possession of the property in question before enforcement of the Act of 1956 in lieu of her right of maintenance and residence; and hence, while relying on the decisions in Mool Kanwar and V.Tulasamma (supra), held that she became entitled to the rights of an owner upon the Act of 1956 coming into force.
A few basic facts make it clear that even when Bhoori Bai took Raghunandan in adoption, doubts and disputes between the parties cropped up from the year 1940 onwards. Bhoori Bai did make applications for giving the rights in osra for the purpose of her maintenance and certain orders were indeed passed for making arrangements of her maintenance out of the offerings received in S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 76 ] osra. But, all said and done, it has not been shown that maintenance of Bhoori Bai was taken care of by any income in her name or by any person. Of all the persons, Raghunandan has failed to establish if actual maintenance of Bhoori Bai was being ensured by him. Merely because a provision was made in the order passed by the Devasthan Department for some money for Bhoori Bai for the purpose of her maintenance out of the income received in osra, it cannot be assumed that such osra alone was to take care of the entire of the maintenance of Bhoori Bai. In the true operation of the provisions contained in sub-section (1) of Section 14 of the Act of 1956 in their letter and spirit, in the given set of facts and circumstances, it appears reasonable to presume that Bhoori Bai was in possession of the property in question in lieu of maintenance. In Mool Kanwar's case (supra), this Court has observed, with reference to another decision of this Court in Mst.Gaumati Vs. Shanker Lal: AIR 1974 Raj 147, thus:
"This Court in Mst.Gaumati v. Shanker Lal AIR 1974 Raj 147 at p.150 observed as under:-
"As already stated above, it is not disputed that Smt.Kalawati was in actual possession of the property in dispute and was entitled to maintenance out of the joint family property. There is nothing on the record to show that any separate arrangement was made for her maintenance nor it is the plaintiff's case that she had any other source of maintenance. It is further crystal clear that she resided in the property in dispute and had exclusive control over it for a period of 50 years since the death of her husband. Under these circumstances even if there is no direct evidence that the property in dispute was given to her for residence and in lieu of maintenance, it will not be unreasonable to presume that she had acquired this property in lieu of S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 77 ] maintenance. The words used in the Explanation to S.14 (1) are wide enough so as to include acquisition in any other manner whatsoever. In the facts and circumstances of this case I am of opinion that Smt.Kalawati was in possession of the property in dispute and had acquired the same in lieu of maintenance and consequently she became full owner thereof on coming into force of the Act."
10. In the instant case, it has been held that possession was given to Narangi Bai and she used to reside in the disputed property. It has also been held that the property was ancestral property. Narangi was a widow and she was entitled to maintenance under the Hindu Law irrespective of the application of the Hindu Women's rights to Property Act, 1937.
11. I am, therefore, in agreement with the view expressed in para 12 in Gaumati's case (AIR 1974 Raj 147) (supra) that even though there is no direct evidence that the property in dispute was given to her in lieu of maintenance, it will not be unreasonable to presume that she has acquired the property in lieu of maintenance. In the present case, the lower Court has held that the property was given for residence. In this view of the matter, as held in Gaumati's case (supra), S.14 (1) of Hindu Succession Act would apply."
In the facts of the present case, the propositions aforesaid appear to be of direct application. Bhoori Bai was in actual possession of the property in dispute and was entitled to maintenance out of the joint family property. As noticed, Raghunandan has failed to establish by cogent evidence that any separate arrangement was made by him for maintenance of Bhoori Bai. Then, Bhoori Bai resided in the property in dispute exercising the control over it. In the given set of facts and circumstances, when Bhoori Bai continued in possession of the property in question, her possession was, and has rightly been taken as, that in lieu of maintenance.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 78 ] Once the finding is reached that possession of Bhoori Bai over the property in question was in lieu of maintenance, the provisions of Section 14 (1) of the Act of 1956 directly apply to her case. The submission on behalf of the plaintiff that sub-section (2) of Section 14 would apply remains untenable. It had not been any property acquired by Bhoori Bai by way of gift or will or any other instrument or a decree or order of a civil Court or an award prescribing restricted estate. Bhoori Bai was in possession of the property in question in lieu of maintenance. She acquired full ownership rights, at contradistinction to limited rights, upon coming into force of the Act of 1956.
The decisions as referred by the learned counsel for the plaintiff in Ram Vishal's case and G.Rama's case (supra) are clearly distinguishable for the different fact situation. In Ram Vishal's case, the Court found that though the widow had the right of maintenance but that did not fructify into the title per Section 14(1) of the Act of 1956 for want of possession and acquisition of the property. The Hon'ble Supreme Court ultimately concluded,-
"A mere right of maintenance without actual acquisition in any manner is not sufficient to attract Section 14."
In G. Rama's case, the Hon'ble Supreme Court has found the distinction from the decision in V.Tulasamma's case (supra) for the reason that ratio in V. Tulasamma would have application only when S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 79 ] a female Hindu was possessed of the property on the date of the Act of 1956 under semblance of a right or a pre-existing right to maintenance in lieu of which she was put in possession. In fact, in G. Rama's case, no issue was framed and no evidence was led on the plea that the appellant was occupying the premises in lieu of maintenance. In the given fact situation, Section 14 was held inapplicable. In the present case, for the different fact situation, where Bhoori Bai is found to have been in possession of the property in question in lieu of maintenance, this Court is not persuaded to disturb the findings of First Appellate Court.
In view of what has been found by the Appellate Court on the facts of the case and when such finding on facts has not been found vitiated by this Court, the other decisions cited by the learned counsel for the defendant in the cases of Shakuntala Devi Vs. Kamla& Ors.: 2005 AIR SCW 2203, Punithavalli Ammal Vs. Minor Ramalingam & Ors.: AIR 1970 SC 1730 and Subhan Rao & Ors. Vs. Parvathi Bai & Ors.: 2010 AIR SCW 5730 could only be noticed to the extent of protection of the rights available to Bhoori Bai after coming into force of the Act of 1956 by virtue of sub-section (1) of Section 14 thereof. In the ultimate analysis, the decree as passed by the First Appellate Court does not appear calling for any interference.
Questions Nos.1 and 2 as formulated in these appeals stand answered accordingly.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 80 ] Now, two interlocutory applications moved by the respective parties, one under Section 100(5) CPC by the plaintiff and another under Order XLI Rule 27 CPC by the defendant may be dealt with.
The application moved on behalf of the plaintiff for raising further question per Section 100(5) CPC (IA No. 4159/2009) During the course of submissions, an application (IA No.4159/2009) has been moved on behalf of the plaintiff under Section 100(5) of the Code of Civil Procedure seeking to raise additional ground regarding validity of the gift deed. It has been submitted in this application that the defendant Jagdish Lal made a categorical statement that he received the gift deed only after demise of Bhoori Bai. While pointing out that Bhoori Bai expired on 20.02.1967, it has been contended that for such submissions of Jagdish Lal, clear it is that the gift was not accepted by the donee during the life time of the donor Bhoori Bai and hence, the gift is rendered void. It has been prayed that the appellant may be permitted to urge this ground for being a pure question of law and for the validity of gift deed being very much in question in these cases,.
After having heard the learned counsel for the parties and having examined the matter in its totality, this Court finds no reason to allow the plaintiff to raise any new ground beyond and apart from the substantial questions of law formulated. It is noticed that such alleged invalidity of gift deed on the anvil of the requirements of Section 122 of the Transfer of Property Act was neither canvassed S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 81 ] before the learned Trial Court nor before the First Appellate Court. Even in the memo of appeal as filed on behalf of the plaintiff in this Court, such a question pertaining to Section 122 of the Transfer of Property Act has not been suggested. Of course, a general question has been suggested to the effect that the District Judge was not right in holding that gift deed was valid to the extent of half share but that question is with reference to the finding of the learned First Appellate Court on the questions of right of Bhoori Bai qua the property in question; and is not on the validity of gift itself.
In the aforesaid view of the matter, the application (IA No.4159/2009) as moved on behalf of plaintiff Raghunandan is required to be, and is, rejected.
The application moved on behalf of the defendant for production of additional evidence per Or. XLI R. 27 CPC During the course of submissions, as application (IA No. 6543/2009) has also been moved on behalf of the defendant under Order XLI Rule 27 of the Code of Civil Procedure seeking to place on record a copy of the plaint relating to a suit (CO No. 188/1998) for declaration as filed by Ramgopal, the son of plaintiff Raghunandan wherein it has been averred that the plaintiff's father was the adopted son of Sohan Lal and was entitled to osra but he was retired by the Devasthan Department on 21.03.1989 for attaining the age of superannuation; however, for the office being of hereditary pujari, as per the applicable rules, the plaintiff was entitled to be S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 82 ] appointed in place of Raghunandan. It has also been submitted therein that Jagdish Lal was not entitled to any right on the basis of alleged will of Bhoori Bai; and that the plaintiff was not interested in raising any objection in relation to the orders passed in the years 1995 and 1996 but his claim was that as per rules, his name was required to be mutated in place of Raghunandan. The plaintiff has, accordingly, claimed in this suit the relief of declaration that as per the hereditary right, he, being the son of Raghunandan, is entitled to osra available to Raghunandan for sewa puja in the two temples.
It has been feebly suggested in the application under Order XLI Rule 27 CPC that the plaint was a relevant document and the contents thereof make it clear that the time for execution of decree had already expired.
The aspects relating to the orders as passed in the execution case and implication of such execution proceedings have already been dilated hereinbefore. This Court is unable to appreciate as to how the pleadings as taken in a later suit filed by the son of Raghunandan would have any bearing either way in the present matter on the substantial questions of law involved. The application being entirely baseless deserves to be, and is, hereby rejected.
Conclusion of the Appeals In view of what has been discussed and held hereinabove, this Court is clearly of opinion that the judgment and decree as S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 83 ] passed by the learned First Appellate Court on 04.04.1983 call for no interference. Hence, both the appeals as filed by the plaintiff Raghunandan Pujari and defendant Jagdish Lal Pujari deserve to be dismissed.
THE WRIT PETITIONS - DISPUTE REGARDING SEWA PUJA RIGHTS After having concluded on the issues arising between the parties in the civil suit, the writ petitions as filed by the rival parties on the dispute concerning the right of sewa puja in the subject temples could now be taken up for consideration.
Before taking up each of the writ petitions individually wherein different orders have been challenged respectively by Raghunandan and Jagdish Lal, it can be conveniently observed that both the writ petitions have their genesis in the rival claims of sewa puja in the subject temples on the osra of late Shri Sohan Lal. The claim of Raghunandan on such osra as the adopted son of Sohan Lal was being contested by Jagdish Lal, while essentially questioning the claim of adoption. The contradictory orders came to be issued by the Devasthan Department, as could be noticed from the narration of events, essentially for the reason that the dispute regarding adoption was considered pending particularly in the appeals concluded hereinabove. The issue in regard to adoption, if at all was considered pending by the authorities, stands concluded with the findings herein.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 84 ] Obviously, the subject matter of each of the writ petitions would be dealt with in accord with the findings reached hereinabove.
The writ petition by Raghunandan - CWP No. 1526/1988 In this writ petition, the petitioner Raghunandan has questioned the order dated 02.03.1988 (as already reproduced in the chronological narration of events) whereby, due to the pendency of the matter in this Court against the judgment and dated 04.04.1983, the State Government proceeded to set aside the orders passed by the Devasthan Department on 05.05.1983 and 18.07.1986 whereby respectively Raghunandan was allowed to perform sewa puja and the review application filed by Jagdish Lal was rejected.
As noticed, the present writ petitions and spate of other litigations have and had in their roots the basic dispute whereby Raghunandan was sought to be denied the rights as the adopted son of Sohan Lal. The intervention of the Government between the parties came up for the reason that the said temples are supervised and controlled by the Devasthan Department. The Government, in the proceedings leading to the order dated 23.04.1968, recognised the rights of Raghunandan as adopted son of Sohan Lal and the right of sewa puja being available to him as the male heir. Even if Jagdish Lal continued to raise the dispute on the status of Raghunandan, the fact remained that in the suit filed by Raghunandan (No.210/1971), the learned Trial Court in its judgment and decree dated 29.05.1976 decided the question of adoption in S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 85 ] favour of Raghunandan; and then, such a finding was affirmed by the Appellate Court in its impugned judgment and decree dated 04.04.1983 rendered in decision of the appeal (No.22/1982) filed by Jagdish Lal. The order as issued by the Commissioner, Devasthan on 05.05.1983 pursuant to the judgment and decree dated 04.04.1983 had been in accord with the decision of the civil Court. That the order dated 05.05.1983 was valid and called for no interference was the conclusion reached by this Court, while dismissing the writ petition (No. 1486/1983) and the special appeal (No. 299/1984) as filed by Jagdish Lal by the orders dated 19.07.1984 and 26.09.1985 respectively.
Despite of all the above, the State Government proceeded to issue the impugned order dated 02.03.1988. Raghunandan has questioned this order as being wholly illegal and having been passed without any opportunity of hearing to him.
This Court is clearly of the view that the order dated 02.03.1988 had been wholly illegal and suffered from violation of the very basics of the principles of natural justice where Raghunandan, the person directly to be affected thereby, was not even extended the opportunity of hearing. This apart, the said order dated 02.03.1988 rather stood at contradiction to the aforesaid orders dated 19.07.1984 and 26.09.1985, as passed by this Court respectively in CWP No. 1486/1983 and SAW No. 299/1984. In the said orders dated 19.07.1984 and 26.09.1985, this Court rejected S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 86 ] the writ petition and the special appeal filed by Jagdish Lal against the order dated 05.05.1983; and rather the said order dated 05.05.1983 was found valid and justified by this Court. The Government in its Revenue Department acted wholly illegally in issuing the order dated 02.03.1988 and thereby withdrawing the Commissioner's order dated 05.05.1983 that was pronounced as valid by this Court.
In view of the aforesaid, the order dated 02.03.1988, having been passed in violation of the principles of natural justice and contrary to the orders passed by this Court, cannot be sustained and is required to be set aside.
Consequently, the writ petition filed by Raghunandan against the said order dated 02.03.1988 deserves to be allowed.
The writ petition by Jagdish Lal - CWP No. 1372/1997 In this writ petition, the petitioner Jagdish Lal has questioned the proceedings in the revision petition filed by Raghunandan against the order dated 18.07.1995 whereby, Jagdish Lal was held entitled to sewa puja rights; and has also questioned the order dated 06.03.1997 as passed on the prayer for interim relief in the said revision petition. By the impugned order dated 06.03.1997, the learned Deputy Secretary to the Government directed stay over the rights of Jagdish Lal and ordered that sewa puja shall be performed by the pujaris other than Jagdish Lal and Raghunandan for one month with other requirements of protection of the offerings.
S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 87 ] In view of what has been discussed, found and held hereinabove, this writ petition by Jagdish Lal could only be considered redundant and not calling for any interference. As noticed, so far the right of sewa puja is concerned, Raghunandan had the same as being the adopted son of Sohan Lal. Any attempt on the part of Jagdish Lal to put to contention this right of Raghunandan because of any reason, principally that of pendency of litigation, can no longer be countenanced by this Court and no order contrary to the rights of Raghunandan could be passed or recognised. As a necessary consequence, the orders as assailed in the said revision petition [No.12(8)/Devasthan/96] filed by Raghunandan themselves loose their efficacy for the decision herein. As a further necessary consequence, the orders, as referred herein and taken note of in the list of events, in so far operating against the rights of Raghunandan on the question of sewa puja, would stand annulled with conclusion of the second appeals. Hence, the writ petition as filed by Jagdish Lal seeking to question the proceedings in the said revision petition could only be treated as redundant and is required to be dismissed as such.
Before conclusion of the matter, however, the aspect as emanating from the interim order dated 22.10.1997 as passed in CWP No. 1372/1997 deserves to be dealt with. As noticed, in this writ petition, while staying the proceedings in the aforesaid revision petition before the Government, this Court permitted Jagdish Lal to S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 88 ] perform sewa puja in his turn on the conditions of his maintaining weekly statements of the offerings received by him in the two temples and submitting the statement of osra in this Court from time to time. The petitioner Jagdish Lal was also put to undertaking to reimburse the person whose right would be established to perform the puja in case the finding be against him.
The findings in this judgment, as recorded hereinbefore, are against Jagdish Lal and the same are in favour of Raghunandan. As a necessary consequence of these findings, the defendant Jagdish Lal (now his heirs) could have been put to the requirement by this Court of reimbursing Raghunandan (now his heirs). However, some relevant circumstances and factors are that: (a) it had ultimately been a matter of performing sewa puja in the two temples presided by the concerned deities; (b) it had been a matter of the income arising out of the offerings (chadhawa/bhait) by the devotees; (c) it had been a long-drawn litigation with several contradictory orders having been passed in favour of the rival parties; (d) the parties otherwise had the relationship of uncle and nephew inasmuch as Raghunandan, upon getting the status of adopted son of Sohan Lal and Bhoori Bai, became the brother of Moti Bai, mother of Jagdish Lal; and (e) both Raghunandan and Jagdish Lal have expired during this litigation.
In view of all the factors above and further in view of the fact that the petitioner Jagdish Lal was allowed to perform sewa puja S.B. Civil Second Appeal No. 94/1983.
LRs of Jagdish Lal Pujari Vs. LRs of Raghunandan Pujari Alongwith three connected matters [ 89 ] under the interim orders passed by this Court until decision of the matter, it does appear appropriate and in the interest of justice that the offerings hitherto received by Jagdish Lal and/or his heirs be not disturbed and they be not called upon to reimburse. However, except this relaxation, henceforth, the rights of the parties regarding the matters in issue shall be governed by the findings herein. CONCLUSION In the result, subject to the observations and requirements aforesaid:
(a) Both the appeals (CSA Nos. 119/1983 and 94/1983) stand dismissed and the judgment and decree as passed by the District Judge, Udaipur on 04.04.1983 stand affirmed;
(b) The writ petition filed by Raghunandan (CWP No. 1526/1988) is allowed and the order impugned therein (dated 02.03.1988) is quashed and set aside; and all other orders standing contra the rights of Raghunandan in the said temples are also annulled;
(c) The writ petition filed by Jagdish Lal (CWP No. 1372/1997) is treated as redundant and is dismissed as such but subject to the protection in regard to the offerings already received pursuant to the interim orders of this Court.
Having regard to the circumstances, the parties are left to bear their own costs.
(DINESH MAHESHWARI),J.
/Mohan/ MK