Madhya Pradesh High Court
Krishna Gopaldas vs Mandir- Shri Radha Krishna Ji on 28 August, 2019
Author: Vishal Mishra
Bench: Vishal Mishra
WP.6494.2011. 1
HIGH COURT OF MADHYA PRADESH : BENCH GWALIOR.
SB:HON'BLE SHRI JUSTICE VISHAL MISHRA.J.
Writ Petition No.6494 of 2011.
Krishna Gopal Das.
Vs.
Mandir Shri Radhakrishna Ji & Others.
Appellant by Shri R.D.Agarwal, Advocate.
Respondent by T.C.Narwariya, Advocate.
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--ORDER (Delivered on 28th August, 2019).
1. Present petition has been filed challenging the order dated 2.9.2011 passed in Civil Suit No.11 of 2010 whereby, the applications filed by the plaintiff under Section 45 of the Evidence Act, under Order 14 Rule 5 Order 14 Rule 2 with Section 151 of the CPC, under Order 14 Rule 5 and 2 of CPC, Order 1 Rule 8 read with Section 151 of CPC and under Order 11 Rule 12 and Section 14 CPC have been decided.
2. It is alleged that the plaintiff/respondent has filed a civil suit for declaration and permanent injunction alleging therein that a temple in the name of Mandir Shri Radhakrishna Ji situated at village Kachnavkala Gormi Pargana Mehgaon and he was Pujari of the temple and his name was mutated in the revenue record. The plaintiff's appointment as Pujari was made by Collector district Bhind vide order dated 24.12.2008 against which, an appeal was preferred. The appeal was dismissed and the order passed by the Collector was affirmed. The revision was filed before the revisional authority and the same is pending consideration.
WP.6494.2011. 2
3. The defendant had filed written statement wherein, he has denied all the plaint averments and has contended that the will dated 31.5.2005 on the basis of which, a civil suit has been filed, is a forged and fabricated will and the same be declared null and void. An application was filed under Section 45 of the Evidence Act by the plaintiff on the ground that there is no thumb impression of the previous Pujari Brij Kishore Das on the will dated 31.5.2005 and thumb impression is of some other person. It is further alleged that the previous Pujari Brij Kishore Das has executed a registered sale deed on 17.12.1992 in favour of Pramod Kumar and on 15.4.2005 executed a registered sale deed in favour of Naresh Yadav and aforesaid aspects was duly admitted by the defendant No.1 in his written statement. He has further submitted that the thumb impression on both the registered sale deeds are available in the Registrar Office Mehgaon, therefore, he has prayed for appointment of an expert for verification of signatures.
4. Reply to the application was filed by the defendant contending that previous Pujari put the thumb impression of right hand because, there was an injury in his left hand thumb. It is further submitted that he is ready to get the thumb impression examined by the expert but as thumb impression of his right hand is there, therefore, verification of the thumb impression can only be done with the thumb impression of the right hand of any other document. Accordingly, he prayed that in case there is no thumb impression of right hand on any other document, then, the application may be rejected.
5. The learned trial court has considered the averments made by WP.6494.2011. 3 both he parties and has considered the aspect that in both the sale deeds dated 15.4.2005 and 17.12.1992, there are thumb impressions of late Brijkishore. The will on which, it is alleged that Brijkishore has put his thumb impression of his right hand, was the certified copy which was given by Ashok Kumar Chaudhary but in the sale deeds, there are signatures and thumb impressions on both of Brijkishore. Therefore, the defendant is not being able to show that why the thumb impression was put on the will and why signatures were not done. Therefore, the learned trial court arrived at the conclusion that the opinion of expert is just and proper and the thumb impression would be got examined by the expert and accordingly, it has allowed the application.
6. Another application was filed by the defendant under Order 14 Rule 4 Order 14 Rule 2 with Section 151 of the CPC alleging therein that the disputed property is government land and is recorded in the name of temple Shri Radha Krishna Ji Banke Deh Haja Pujari Maufi Dev Sthan Atiya Sarkar and Collector district Bhind is Manager of the aforesaid land. The plaintiff has not impleaded original owner of the property as a party to the proceedings and the State is impleaded as a proforma respondent stating that no relief is claimed against State. No notice under Section 80 of the CPC has been issued to the State Government and the civil suit is filed with delay, therefore, he has submitted that there is violation of mandatory provisions of CPC, the Civil Suit is not maintainable. It is further submitted that the plaintiff has challenged the order dated 24.12.2008 passed by Collector district Bhind but he has not impleaded Collector district Bhind as party to WP.6494.2011. 4 Civil Suit and without impleading him as a defendant in the proceedings, Civil Suit is not maintainable. It is contended that State has been impleaded as proforma defendant whereas, it is settled position of law that if an order passed by the authority is put to challenge then he should be impleaded as a party to the proceedings and accordingly, the defendant has prayed for formation of additional issue regarding maintainability of Civil Suit, in absence of proper parties and has prayed for framing it as a preliminary issue.
7. Reply to the application was filed by the plaintiff denying contents of the application and has submitted that it is not required to implead State Government as a one of main defendants rather he is only proforma defendant because, the main dispute is with respect to execution of a will dated 31.5.2005, therefore, there is no requirement for additional issue on the aforesaid point.
8. Learned trial court after hearing arguments of the applicant arrived at the conclusion that looking to the contents of the application, the court has found it feasible to frame additional issue in the matter and has allowed the application and additional issue in the form of ¼v½ ¼c½ ¼l½ ¼n½ has been framed and required to be decided as preliminary issues.
9. Another application is being filed under Order 1 Rule 8 of CPC read with Section 151 of CPC to the effect that the plaintiff is having no right to file present suit and the suit itself is not maintainable as plaintiff himself has admitted in para 16 of the plaint that the Collector has appointed late Brijkishore Das as Pujari of the temple who passed WP.6494.2011. 5 away on 2.6.2005 and thereafter by order of Collector in case No.19/2006-2007, appeal in the name of Krishna Gopal Das Vs. Satish alias Raghav Das S/o Omprakash was filed which was decided vide order dated 24.12.2008. Considering the resolution of Gram Panchayat dated 26.1.2007 as illegal, the same was rejected and vide order dated 26.1.2007, Krishna Gopal Das was appointed as Pujari of the temple Radha Krishna Kachnav Kalan for performing Puja Archana. Therefore, as per order of Sate Govt. he is taking care of the temple and managing the work of the temple as well as the property attached to the temple and by the income generated from the aforesaid property, he is managing the temple. Thus, the plaintiff without any authority of the State Govt. and without impleading State as one of the main defendant in the suit has no right to file civil suit. Therefore, the civil suit itself is not maintainable on behalf of the plaintiff. Accordingly, he prayed for dismissal of the civil suit.
10. The reply to the aforesaid application was filed by the plaintiff denying contents thereof. It is submitted that after death of Pujari Brajkishore Das, resolution dated 26.1.2007 was passed by the Gram panchayat whereby, Radhikadas (Manoj S/o Omprakash) and during proceedings of entries in the revenue record, Pujari Radhika Das passed away. Thereafter, a resolution was passed on 26.1.2007 appointing Satish alias Radhika Das S/o Omprakash as Pujari of the temple. The defendant by way of aforesaid will has challenged the order of appointment of Pujari and the learned Collector has wrongly passed an order against which, a revision is filed by plaintiff which is WP.6494.2011. 6 pending consideration with the State Govt. It is further submitted that the defendants are trying to personally take possession of the property of the temple, therefore, the civil suit was filed. Accordingly, he has prayed for dismissal of the application.
11. Learned trial court has dealt with the aforesaid application and has considered circular passed by the State Government dated 7.1.2001 by M.P. State Dharmik Nyas Avam Dharmaswa Bibhag wherein, the the powers have been delegated to Gram Sabha for appointment of Pujaris. The learned trial court has further considered that after death of previous Pujari, Brijkishore Das, the Gram Panchayat vide resolution No.20 dated 26.1.2006 has appointed Radhika Das alias Manoj as Pujari of the temple who passed away during the proceedings of entering the name in the revenue records and therefore, the plaintiff has been appointed as Pujari on 26.1.2007. The order of appointment of plaintiff as Pujari was put to challenge before Collector, district Bhind which was set-aside vide order dated 24.12.2008 by Collector. The learned trial court has considered the aspect that the Collector is a Manager of the temple who has passed an order dated 24.12.2008 against the plaintiff. Therefore, the plaintiff is having full right to file civil suit and accordingly, held that the civil suit is being filed by appropriate person and was declared to be maintainable.
12. Another application has been filed by the defendant under Order 11 Rule 12 of CPC and 14 of CPC to the effect that there is no application filed by the plaintiff under Section 45 of the Indian Evidence Act rather the application has been filed under Section 45 of WP.6494.2011. 7 the CPC and the aforesaid application is only being filed for causing delay in the matter. The aforesaid application was dealt with by learned trial court and has further alleged that the will on which, the defendant is relying is not being produced by the him. The trial court has considered the application and has allowed the same directing the defendant to file original will in the civil suit. Accordingly, the learned trial court while disposing of the application has directed for formation of additional issues as issue No.5 and 6 and a direction has been issued to the plaintiff to give two names of the expert enabling the trial court to appoint one as an expert and a direction has been issued to the defendant to produce original will before the trial court with further direction that the issue No.5 and 6 be dealt as preliminary issues for which, the matter was directed to be listed on 15.9.2011. Being aggrieved by the aforesaid direction issued by learned trial court, present writ petition is being filed.
13. It is alleged that the application for formation of additional issue was partly allowed and third additional issue is not being framed by learned trial court which is as under :
^^l&D;k eafnj iqtkjh fu;qDr djus ds laca/k esa U;k;ky; izeq[k lfpo] /keZLo 'kklu e0iz0 'kklu Hkksiky esa izdj.k lapkfyr jgus ds nkSjku Jheku U;k;ky; dks okn Jo.kkf/kdkj gS+\ ;fn ugh rks izHkko\**
14. He has further alleged that as per Section 35 of Kawayad Maufidaran Jujbe Araji and Nakdi Riyasat, Gwalior Samvat 1991 (hereinafter would be referred as to the "Act of Samvat 1991", for management and other affairs of the temple, the proceedings before the civil courts are barred. It is submitted that the temple is Aukaf property WP.6494.2011. 8 and the appointment of the plaintiff as Pujari was quashed by the Collector which has been affirmed by the Commissioner against which, a revision was filed before the State Government which is pending consideration. The aforesaid question goes to root of the issue, therefore, the same should be framed as an additional issue and should be framed as a preliminary issue and should be decided by the trial court first. The petitioner has relied upon the orders passed by the Division Bench of this Court in Ravindra Prakash Vs. State of M.P. Reported in ILR 2009 MP 3144, Ram Singh and Others Vs. Gram Panchayat Mehal Kalan and Others reported in AIR 1986 SC 2197, Deokinandan Vs. Surajpal reported in 1995 Supp. (4) SCC 671 and Nagar Panchayat Aaron Vs. Shanti Bai and Others reported in 2009 Volume III MPJR 301 and accordingly has prayed for setting aside the part of order passed by the trial court whereby, the learned trial court has denied for formation of issue No.3 as preliminary issue.
15. It is further alleged that the plaintiff's appointment as Pujari of the temple has been quashed by the Collector which was affirmed by the Commissioner against which, a revision is being filed which is pending consideration before the State Government. Therefore, once he is not Pujari of the temple, he has no right to file a civil suit on behalf of temple showing himself to be a Pujari of the temple. He has relied upon the judgment passed by Supreme Court in the case of Mandir Achleshwar and Others Vs. Achleshwar Trust reported in 1999 WP.6494.2011. 9 Volume 1 JLJ 74 and in case of Om Prakash and Others Vs Pushpa Bai reported in 2017 Volume 1 MPLC 39. Accordingly, he has prayed for setting aside of the order passed by learned trial court.
16. Reply to the writ petition has been filed on behalf of respondent No.3 contending that the petitioner is Pujari of the temple Shri Radha Krishna. Appointment of the respondent as Pujari of the temple of Gram Panchayat Kanchnavkalan Gormi dated 26.1.2007 has been set- aside by Collector vide its order dated 24.12.2008 finding it to be not in accordance with law and after quashment of the order, the petitioner was appointed as Pujari. An appeal was preferred by the plaintiff against the order dated 24.12.2008 passed by Collector before Commissioner, Chambal Division which was dismissed by Commissioner vide its order dated 29.6.2009 and revision was preferred by the plaintiff before the State Government, which is pending.
17. It is further contended that the learned trial court by the impugned order dated 2.9.2011 has allowed the applications filed under Section 45 of the Evidence Act, Order 14 Rule 5 Order 14 Rule 2 with Section 151 of the CPC, under Order 11 Rule 12 CPC and 14 of CPC and Order 14 Rule 2 of CPC were allowed and the application under Order 1 Rule 8 read with Section 151 of CPC was dismissed. It is submitted that the order passed by learned trial court is just and proper and it has been filed on the basis of material available on record.
18. Heard, learned counsel for the parties and perused the record. WP.6494.2011. 10
19. The plaintiff/respondent No.1 preferred a civil suit for declaration and permanent injunction to the effect that he is Pujari of the temple Shri Radha Krishna Ji Kachnavkala Gormi, Tehsil Mehgaon district Bhind and his name has been mutated in the revenue papers. The plaintiff Pujari was terminated by the Collector vide order dated 24.12.2008 in Case No.9/06-07-A/Panch. The aforesaid order was duly confirmed by the appellate authority and the revision filed against it, is pending consideration before State Government, but there is no interim relief. It has been alleged by the plaintiff that will dated 31.5.2005 be declared as forged will and permanent injunction be issued in favour of the plaintiff/respondent. During pendency of the suit, an application under Section 45 of the Evidence Act was filed by the plaintiff/respondent No.1 for examining the thumb impression on the will by an expert. The reply to the aforesaid application was duly submitted. Learned trial court after due consideration of the application has allowed the same vide impugned order.
20. Another application was preferred under Order 14 Rule 5 and Order 14 Rule 2 with Section 151 of the CPC for framing of additional issue. The aforesaid application was partly allowed by learned trial court and the issue No. ^l' was not found to be relevant and the learned trial court has denied to frame the issue.
21. It is alleged by the petitioner that in terms of Section (nQk) 35 of the Act of Samvat 1991, the jurisdiction of the civil courts regarding maintenance of temples and all other activities have been specifically barred. For the sake of convenience, Section 35 of the Act of Samvat WP.6494.2011. 11 1991 is reproduced as under :
`nQk 35- ekfQ;kr ljdkjh ls eqrvfYyd uhps fy[ks gq, ekeykr dk rkYyqd egDes ekQh ls jgsxk- vnkyrgk; nhokuk ;k eky buds lekvr ekfQ;kr ljdkjh ds ekeykr dh le vr dh etkt u gksaxh%& fuLcr vnkyrksa ij dSn] 1- tujy ,sMfefuLVz~s'ku] 2- fojklr ;k tku'khuh ;k bUnzkt uke] 3- xksnu'khuh] 4- uku uQdk] use.kd o nhxj gdwd eqrvfYyd ekQh- 5- vkjkft;kr ;k uDnh dk crkSj ekQh ds fn;k tkuk- 6- dk;eh rknkn jde ekQh ;k jdck ekQh vkjkth] 7- ekfQ;kr dh tOrh ;k mudh ukSb;r esa dksbZ rCnhyh djuk- 8- ekfQ;kr dh rdlhe ;k bUrdky] 9- ekfQ;kr ij dOtk fnykuk ;k ekfQ;kr ls dOtk gVkuk] 10- gdwd eqrvfYyd p<+kuk] iwtk o bcknr oXkSjk- 11- ekfQ;kr ls nhokuh ;k eky dh fMfdz;kr dh gdjlh ¼rkcs nQk 29½-
12- nkostkr eqrvfYyd vfr;kr dCy vt tkxhj- 13- rukft;kr ekcSu tkxhjnkj o ekQhnkj vfr;k dOy vt tkxhj eqrvfYYd gdwd ekQh-
xksfoUnjko d`".kkjko f'kUns] fefuLVj QkWj ykW ,UM tfLVl' Thus, the aforesaid makes it clear that the jurisdiction of civil Courts is barred.
22. The disputed property is an Aukaf property. The appointment of plaintiff/respondent No.1 as Pujari of the temple has been set-aside by learned Collector which was duly affirmed by the Commissioner in the appeal and the revision against the same is pending consideration before the State Government, the aforesaid aspect has been admitted by the plaintiff in his plaint. The proposed issue which was denied by the trial court appears to be an important issue as the same goes to the very root of the case and is related to the jurisdiction of the court, therefore, the aforesaid issue being relevant issue requires consideration, this court directs for formation of the aforesaid issue and to be dealt with as a preliminary issue. If it is found that the civil courts are not having any WP.6494.2011. 12 jurisdiction to deal with the case in hand, then all the subsequent exercise is itself a futile exercise. The petitioner has relied upon the order passed by the Division Bench of this court in Mandir Achleshwar and Others (Supra), wherein, the issue regarding jurisdiction envisaged under Section 26 and 27 (4) of the Public Trust Act, 1951 was taken into consideration by the Division Bench. Section 26 of the Act of 1951 is relevant which reads as under :
26. Application to Court for directions. - (1) If the Registrar on the application of any person interested in the public trust or otherwise is satisfied that,-
(a) the original object of the public trust has failed;
(b) the trust property is not being properly managed or administered; or
(c) the direction of the Court is necessary for the administration of the public trust;
he may, after giving the working trustee an opportunity to be heard direct such trustee to apply to Court for directions within the time specified by the Registrar.
(2) If the trustee so directed fails to make an application as required, or if there is no trustee of the public trust or if for any other reason, the Registrar considers it expedient to do so, he shall himself make an application to the Court".
23. Accordingly, the learned trial court is directed to frame proposed issue ^l' as preliminary issue and the same be decided first as it relates to jurisdiction of Courts.
24. Another application is being preferred by the defendant under Order 1 Rule 8 read with Section 151 of the C.P.C to the effect that the civil suit is being filed on behalf of temple through Pujari and the same is being filed by the respondent No.1 who is having no authority to file the same as the appointment of plaintiff as Pujari has been cancelled by the Collector which was affirmed by the Commissioner and the revision against the same is pending consideration before the State WP.6494.2011. 13 Government and there is no interim relief granted to the plaintiff. Thus, he has prayed for dismissal of the civil suit being filed by an incompetent person.
25. Another application was filed under Order 7 Rule 11 of C.P.C for rejecting the application being not maintainable, relying upon the judgment passed by Hon'ble Division Bench of this court in the case of Mandir Achleshwar and Others (Supra) and Om Prakash and Others (Supra). Both the applications were dealt with by the learned trial court and it has been held that the court is having jurisdiction to deal with the controversy regarding appointment of Pujari and the order passed by the Collector whereby, appointment of the petitioner was set-aside which was duly affirmed by the Commissioner court, can very well examine the validity of the orders passed by the Collector and Commissioner. The learned trial court has not given any weightage to the fact that the revision is pending before the State Govt. as has been pointed out by the plaintiff. Further more, the learned trial court has failed to consider this aspect that in view of Section 35 of the Act of Samvat 1991, also Section 26 and 27 (4) of the Public Trust Act and the judgments passed by Division Bench of this court in the case of Mandir Achleshwar and Others (Supra), the civil courts are not having any jurisdiction to deal with any issue which is related to the Public Trust. The relevant portion of the judgment rendered by Division Bench in the aforesaid case is as under :
"Thus, it is crystal clear that the provisions of S. 26 are self sufficient and they embrace within its fold all matters relating to the public trust. It has to be kept in mind that the provisions WP.6494.2011. 14 operate only when there is validly constituted public trust under the Act and there must be a satisfaction of the Registrar as provided under this section. If we peruse section 27 of the M.P. Public Trusts Act we find that it makes provision for Court's power to hear the application. Before referring to this section it is necessary to revert back to the provisions of S. 26 where a provision has been made to the effect that the Registrar on being satisfied may direct the trustee to apply to Court for direction within the time specified by the Registrar as is evident from the provisions quoted above. After the receipt of the application the powers of the Court have been enumerated in S. 27 of the Act. Sub-section (3) of this section makes a provision that an order passed by the Court under sub- section (2) shall be deemed to be a decree of such Court and an appeal shall lie therefrom to the High Court. Sub-section (4) is very important. Under this clause finality has been given to the order and a bar has been provided with respect to a suit relating to a public trust u/s 92 of the C.P.C. on any matter with respect of which an application can be made u/s 26. We have already said above, that S. 26 is wide enough to embrace all matters relating to a public trust Thus, in the teeth of these two provisions no suit can be filed with respect to a public trust u/S. 92 C.P.C, on a matter with respect to which an application can be made u/S. 26".
Even otherwise, the revision of the plaintiff against cancellation of his appointment order is pending before the State Government. Therefore, normally the courts should not have interfered with such matters.
26. Another aspect which has not been considered by the trial court, is the fact that the civil suit is being filed by the plaintiff in the name of temple through Pujari, who is not Pujari of the temple any more. But as already pointed out herein above that Satish alias Radhikadas Pujari happens to be no more a Pujari of the temple and his appointment as Pujari has already been set-aside by the Collector which was duly affirmed by the Commissioner, in such circumstances, the order passed by learned trial court on an application under Order 7 Rule 11 of CPC is not sustainable and is hereby set-aside.
27. Consequently, the petition filed by the petitioner is allowed and the application filed filed under Order 14 Rule 5 and Order 14 Rule WP.6494.2011. 15 2 with Section 151 of the CPC for formation of an additional issue is allowed and the matter is remanded back to the trial court for formation of issue No.^l' and to deal it as a preliminary issue as the same relates to the jurisdiction of the court. The learned trial court is further directed to consider the application under Order 7 Rule 11 of CPC in terms of the order passed by the Division Bench of this court in the case of Mandir Achleshwar and Others (Supra), and relevant provisions of Section 26 and 27 of the Public Trust Act and also Section 35 of the Act of Samvat 1991.
28. Accordingly, the petition stands disposed of in the aforesaid terms with no order as to the cost. It is made clear that the learned trial court shall deal with the issue and decide the application independently without being affected by the observations given by this Court.
(Vishal Mishra) Judge Rks.
R. K. SHARMA 2019.08.29 12:53:30 +05'30'