Madhya Pradesh High Court
Shri Ram Mandir vs The State Of M.P. on 13 July, 2017
1
HIGH COURT OF MADHYA PRADESH
BENCH AT INDORE
(SB: HON. SHRI JUSTICE PRAKASH SHRIVASTAVA)
Second Appeal No.103/1997
Shri Ram Mandir, Vikramgarh
Through Shebait (Vyavasthapak)
Balramdas Guru .... Appellant
Vs.
State of M.P. and others .... Respondents
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Shri Sandeep Kochatta, learned counsel for the appellant.
Shri Romesh Dave, learned counsel for the
respondents/State.
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Whether approved for reporting :
JUDGMENT
(Delivered on 13/7/2017) 1/ This second appeal under Section 100 of the CPC is at the instance of the plaintiff challenging the reversal judgment of the first appellate court. The trial Court by the judgment dated 7.7.1995 had decreed the suit of the appellant for declaration and permanent injunction and the first appellate court by the judgment dated 1.2.1997 has partly allowed the appeal and maintained the decree of permanent injunction only.
2/ In brief, the appellant had filed the suit on the plea that Shree Ram Mandir situated at Vikramgarh, Tehsil Alot, District Ratlam is their personal family temple which was established by their ancestors as family God to offer prayer and the office of Pujari of the temple is by succession as per the 2 Hindu religion books and presently the appellant Balramdas is the owner in possession of the temple and the suit land adjoining the temple and is offering prayer in the temple from the proceeds received from the suit land. The Government had made a declaration for giving the suit land on lease on 6.5.1987, to which the appellant had objected and without giving any notice to the appellant, the name of the Collector was entered in the record as Manager. Hence the decree was sought to declare the temple as private temple of the appellant and to restrain the respondents from interfering in offering prayer in the temple and utilizing the suit land.
3/ The suit was opposed by the respondents by filing the written statement and taking the plea that the temple is not a private temple but it was constructed by the residents of Vikramgarh by contribution and the arrangement for offering prayer was also made by them. The temple is a public temple on the Government land and the land has been reserved by the Government for management of the temple and in the revenue record the name of Balramdas Guru is recorded as Pujari of the temple and Collector is the Manager and the name of the Collector was recorded in the year 1974, which was not challenged for a long time till the filing of the suit and after leaving 10 Acres of land, the State has right to auction the remaining land which the State is auctioning since 18/6/1980.
4/ Trial Court had decreed the suit holding that the temple was a private temple of the appellant and the appellant was managing the temple and agricultural land since last 40-42 years. The appellant was found to have received the right of Morosi Krishak and accordingly the trial Court had declared the appellant to be the title holder of the suit land and restrained the 3 respondents from interfering in his possession.
5/ The first appellate court has reversed the judgment of the trial Court by holding that the temple in question is a public temple and no land was given to the Pujari of the temple and the suit land is not a Muafi Land but it is a revenue paying land and the appellant was cultivating the suit land as Pujari of the temple, and the land was given to the deity and not to the Pujari and no Morosi Krishak right had accrued to the appellant. Since the appellant was found to be in possession of the suit land, therefore, the decree of injunction granted by the trial Court has been maintained restraining the respondents from interfering in his possession without following the due process of law.
6/ This Court vide order dated 24.7.1997 had admitted the appeal on following substantial questions of law:-
1. In the facts and circumstances of the case, whether lower appellate court was right in holding that disputed temple is a public temple when no evidence is available on record in this respect?
2. In the facts and circumstances of the case, whether the lower appellate court was right in holding that although the disputed lands stand in the name of Ram Mandir, the plaintiff Balramdas, a Shebait, has no right or title in the disputed land?
3. In the facts and circumstances of the case, whether the lower appellate court was right in holding that State is entitled to auction the disputed lands as belonging to a public temple, when it is not a State temple or a temple maintained by the Government?
7/ Question No.2 is in respect of the right and title on the suit land, therefore, it is being decided first.
4Question No.2:-
8/ Learned counsel for the appellants submits that from Ex.P/6 & P/7 the land was given to the Pujari, therefore, the Pujari of the temple was the owner of the suit land. He has also submitted that in view of Ex.P/1, P/2 and P/3, the title of the appellant on the suit land is proved. He has also placed reliance upon the judgment of the Privy Council in the matter of Ballabhdas and others Vs. Nur Mohd. And Another reported in AIR 1936 PC 83 in support of his submission that Khasra entries can create title and in the matter of State of M.P. Vs. Kesharbai and others reported in 2009 RN 165 in support of his submission that Khasra entries are presumed to be correct. He has also submitted that since the suit land was Inam land, therefore, the appellant had become Bhumiswami and in this regard he has placed reliance upon the judgment in the matter of Murti Shri Pandharinath Mandir Vs. Collector, Indore reported in 2013(4) MPJR 191.
9/ As against this, learned counsel for the respondents submits that there is no document of title in favour of the appellant and the appellant was a mere Pujari in the temple and the land was given to the deity, therefore, no right had accrued to the appellant.
10/ Having heard the learned counsel for the parties and on perusal of the record, it is noticed that the appellant is claiming to be the title holder mainly on the basis of Patta Bandobast (Ex.P/6 & P/7) but a perusal of these documents reveal that the suit land was given to the deity and the name of Manohardas Guru was recorded as Pujari. In the Kistbandi Khatoni (Ex.P/1) also the land is recorded in the name of the 5 temple and the status of Balramdas Guru and Manohardas Bairagi is shown as Pujari. Same is the position in Ex.P/2 the Khasra Panchsala for the year 1973-74 to 1976-77 and Khasra Panchsala (Ex.P/3) for the year 1978-89 to 1981-82. These documents reveal that the suit land was land of the Devsthan. The first appellate court has examined this issue in detail and has rightly found that the land was not a Muafi land but it was a revenue paying land. In view of the analysis in Para 6 of judgment of the first appellate court, Ex.P/7 was executed in the year 1930-31. The PW-2 Narayan Singh has also admitted in Para 5 of his cross-examination that land was given to the temple. He had also admitted in Para 3 of his cross- examination that the land belongs to the State and appellant was paying the land revenue. The appellant-plaintiff has not produced any document which could establish the title of the appellant on the suit land, on the contrary the documentary and oral evidence on record establishes that the land was Government land which was given to the deity.
11/ In the judgment in the matter of Ballabhdas (supra) it has been held that where the Khasra itself is the instrument which confers or embodies the right and there is no other document which creates title, the Khasra entry can be treated as instrument of title or the direct foundation of rights, but in the present case Ex.P/6 and P/7 are the Patta and title documents in the name of deity and the Khasra Entries (Ex.P/1, P/2 & P/3) also does not record the appellant as Bhumiswami, therefore, the benefit of this judgment cannot be granted to the appellant. The Single Bench judgment in the matter of Kesharbai (supra) holds that the entries in the village paper are presumed to be correct but in the present case the entries are against the 6 appellant. Similarly the benefit of the Single Bench judgment in the case of Murti Shri Pandharinath Mandir (supra) cannot be granted because in that case the land was given to forefather of the plaintiff as Inam by Holkar State, but in the present case the land has been given to the Deity.
12/ So far as the issue about accruing of Morosi Krishak right on the appellant is concerned, the Pujari of the temple was in possession on behalf of the deity and even otherwise evidence on record reveals that the land is being auctioned by the State on year-to-year basis since 1980 and the appellant himself had participated in auction and obtained the land on lease. The land belongs to the deity which is a minor, therefore, no Morosi Krishak right will accrue to the appellant in the facts of the present case. Hence, Question No.2 is answered against the appellant and in favour of the respondents by holding that the lower appellate court was right in finding that the suit land stands in the name of Ram Mandir and the plaintiff-appellant Balramdas has no right or title in the suit land.
Question No.1:-
13/ Learned counsel for the appellant submits that the temple in question is a private temple and it has wrongly been held to be a public temple. He has further submitted that the finding recorded by the trial Court could not have been reversed by the first appellate court because the First Appellate Court had no opportunity to see the demeanour of the witness in this regard. He has placed reliance upon the judgment of the Supreme Court in the matter of Baburao Baggaji Karmore Vs. Govind and others reported in AIR 1974 SC 405 and in the 7 matter of Laxminarayan and another Vs. Returning Officer and others reported in AIR 1974 SC 66. He further submits that Devsthan Register was not produced to show that it was a Government temple, therefore, adverse inference should be drawn. In this regard he has placed reliance upon the judgment of the Supreme Court in the matter of Gopal Krishnaji Kethar Vs. Mohd. Haji Latif and others reported in AIR 1968 SC 1413 and in the matter of Patel Naranbhai Marghabhai and others Vs. Deceased Dhulabhai reported in AIR 1992 SC 2009.
14/ As against this, learned counsel for the respondents has submitted that the Patta was in the name of the temple and the land was revenue paying land and no evidence has been adduced by the appellant to show that it is a private land. He has further relied upon judgment of the Supreme Court in the matter of Jammiraja Rao Vs. Sri Anjaneya Swami Temple Valu and others reported in (1992) 3 SCC 14 in support of his submission that since the land was given to the deity and not to the appellant, therefore, it was a public temple and that the test laid down in the matter of Goswami Shri Mahalaxmi Vahuji Vs. Ranchhoddas Kalidas and others reported in 1969(2) SCC 853 is duly satisfied in the matter, therefore, the temple has rightly been held to be a public temple.
15/ The Supreme Court in the matter of Goswami Shri Mahalaxmi Vahuji (supra) has laid down the test for determining the nature of the temple as private or public as under:-
"15. Though most of the present day Hindu public temples have been found as public temples, there are instances of private temples becoming public temples in course of time.
Some of the private temples have acquired 8 great deal of religious reputation either because of the eminence of its founder or because of other circumstances. They have attracted large number of devotees. Gradually in course of time they have become public temples. Public temples are generally built or raised by the public and the deity installed to enable the members of the public or a section thereof to. offer Worship. In such a case the temple would clearly be a public temple. If a temple is proved to have originated as a public temple, nothing more is necessary to be proved to show that it is a public temple but if a temple is proved to have originated as a private temple or its origin is unknown or lost in antiquity then there must be proof to show that it is being used as a public temple. In such cases the true character of the particular temple is decided on the basis of various circumstances. In those cases the courts have to address themselves to various questions such as:-
(1) Is the temple built in such imposing manner that it may prima facie appear to be a public temple?
(2) Are the members of the public entitled to worship in that temple as of right?
(3) Are the temple expenses met from the contributions made by the public?
(4) Whether the Sevas and Utsavas conducted in the temple are those usually conducted in public temples?
(5) Have the management as well as the devotees been treating that temple as a public temple?"
16/ Similarly in the matter of Jammiraja Rao (supra) it has been held that when the dedication of properties in fvour of deity is complete, the temple is a public temple. In Jammiraja Rao (supra) the Supreme Court has held that:-
"32. Shri Sitaramiah has lastly contended 9 that Ex.A-4 shows that after meeting the expenses for the upkeep of the deity, the income from the suit property was to be used for the benefit of his family which means that there was only a partial dedication of the property in favour of the deity. The submission of Shri Sitaramiah is that in view of the fact that the dedication was only partial, the property retained its original private and secular character and that there was only a charge on the common obligation used as part of the income for the upkeep of the deity and therefore, the said property attached to the temple cannot be regarded as the trust property. Reliance has been placed on the decision of this Court in S. Shanmugam Pillai v. K. Shanmugam Pillai, [1973] 2 SCC 312. Since we have not accepted the case set up by the appellant on the basis of the aforesaid document and have found that in view of the entries in the Inam Registers, there was complete dedication of the property to the deity, it cannot be held that there was only a partial dedication on the suit property and the property continued to retain its private and secular character."
17/ The appellants were claiming the temple to be private temple, therefore, it was their onus to establish the same. The appellants had not produced any evidence in respect of original construction of the temple. There is also no evidence to show that the temple was constructed before the grant of Patta. The appellant's own documents (Ex.P/1 to P/7) reveal that the appellants were only Pujari in the temple and the land was in fact given to the deity by the State and the land was not a Muafi Land but it was a revenue paying land. No Patta in personal capacity was granted to the appellant Balramdas or Manohardas. The Patta (Ex.P/6 & P/7) was in the name of the deity (Temple) and Manohardas was only shown to be as Pujari. PW-2 Narayan Singh in Para 3 of his cross-examination 10 has admitted that the festivals were celebrated and the temple used to be repaired from the income of the suit land and also that the land was given to the temple. The appellant had failed to produce any evidence to show that the temple was constructed by the personal fund or it was not used by the general public, on the contrary PW-1 Balramdas in Para-9 of the cross-examination has admitted that the temple was open for general public. The record further reveals that since 1980 the suit land is being auctioned by the State and the appellant till filing of the suit had not objected to it, and had themselves participated and taken the land in auction.
18/ Learned counsel for the appellants has placed reliance upon the judgment of the Supreme Court in the matter of Baburao Baggaji Karmore (supra). In that judgment also it has been held that the appellate court is entitled to examine and appreciate the evidence. There is no dispute to the proposition that interference in the finding of the trial Court is warranted when it is unsound, perverse or based on grounds which are unsatisfactory by reason of material inconsistencies or inaccuracies. In the present case the first appellate court has duly considered the evidence and assigned proper reasons while reversing the finding of the trial Court. So far as the judgments in the matter of Gopal Krishnaji Kethar (supra) and Patel Naranbhai (supra) are concerned, there was sufficient material on record and from the statement of appellant's own witnesses it was clear that the temple in question was a public temple, therefore, there was no question of drawing the adverse inference.
19/ Hence, I am of the view that the conditions mentioned by the Supreme Court in the matter of Goswami 11 Shri Mahalaxmi Vahuji (supra) are satisfied and no error has been committed by the first appellate court in holding the temple to be public temple.
Question No.3:-
20/ Learned counsel for the appellant submits that there is no plea in the written statement that the temple is government temple and Ex.D/15, the order of the Commissioner, is applicable to the Government temple and even otherwise it has no statutory force therefore, the respondents have no right to auction the suit land. In this regard he has placed reliance upon the judgment of this Court in the matter of Ghanshyamdas and others Vs. State of M.P. reported in 1995 RN 235 and the judgment in the matter of Kantabai Ramniwas Paliwal Vs. State of M.P. dated 16.4.2013 passed in S.A. No.4/2007.
21/ As against this, learned counsel for the respondents has submitted that the Collector's name has been added only as Administrator and the name of the Deity still continues and the name of the appellant also continues as Pujari and that since the appellant is not a Bhumiswami and the land belongs to the deity, therefore, he has no right on the suit land and 10 Acres of land is left for maintenance of the temple and the land being a revenue paying land and if the revenue is not paid, then under Section 139 of the M.P. Land Revenue Code, the competent authority has right to auction and recover the revenue and the appellant himself has taken the land in auction.
22/ Having heard the learned counsel for the parties, it is noticed that the appellants' own witness PW-2 Narayan 12 Singh had admitted that the suit land was given to the temple and that the land belongs to the State and the appellant was paying the land revenue. The record further reflects that the suit land is being auctioned by the State since 1980. PW-1 Balramdas has admitted that he is taking the suit land in auction from Tehsildar since 1979-80. He had also submitted that in the year in which his deposition was recorded, he had taken the suit land in auction and that he had not taken any objection in auction. The statement of DW-1 Mangilal Kumawat also reveals that the suit land was being auctioned since 1980 and the appellant had participated in the auction and taken the suit land on lease without claiming himself to be the title holder of the suit land. The Circular Ex.D/15 is a general circular not referable to any particular temple. The circular has been issued with the object of appropriate administration and management of the properties of the Devsthan and the Government temple. The temple being a public temple, the necessary steps have rightly been taken by the State to manage its properties and no error has been committed by the first appellate court in holding so in favour of the respondent/State. The Single Bench judgment in the matter of Ghanshyamdas (supra) relied upon by counsel for the appellant relates to the heritable right of the Pujari but the present dispute is about the title of the land belonging to the Deity and its management and the appellant has failed to establish that any heritable right as Pujari exists in his favour on the suit land. Counsel for the appellant has also relied upon the judgment of the Single Bench in the case of Kantabai Ramniwas Paliwal (supra) but in that case there was no finding that the temple was a public temple, whereas in the present case there is a specific finding to that effect.
1323/ In view of the aforesaid, Question No.3 is also answered in favour of the respondent.
24/ Having regard to the aforesaid, I am of the opinion that the appeal has no force, hence it is dismissed and the judgment of the first appellate court is affirmed.
(PRAKASH SHRIVASTAVA) Judge Trilok.