Rajasthan High Court - Jaipur
Badri Narain vs Kishan Chandra on 4 August, 2011
Author: Mohammad Rafiq
Bench: Mohammad Rafiq
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR. J U D G M E N T S.B. CIVIL SECOND APPEAL NO.114/1989. Badri Narain & Anr. Vs. Kishan Chandra & Ors. Date of Order:- August 4, 2011. HON'BLE MR.JUSTICE MOHAMMAD RAFIQ Shri M.M. Ranjan, Senior Counsel with Shri Paranjeet Sharma for the defendant-appellants. None present for the plaintiffs-respondents. ******* Reportable:- BY THE COURT:-
1) This appeal has been filed by the defendant-appellants under Section 100 of the Code of Civil Procedure, 1908 against the judgment & decree dated 18/3/1989 passed by the Court of learned Additional District & Sessions Judge No.6, Jaipur City, Jaipur whereby, the judgment dated 7/5/1970 passed by the Court of learned Additional Munsif Magistrate No.1, Jaipur City, Jaipur was reversed and the suit was decreed.
2) When this appeal was admitted for hearing on 4/8/1989, following substantial questions of law were framed by this Court:-
1. Whether the Pujari-ship of the temple is a property capable of inheritance?
2. Whether in the facts and circumstances of the case, Pujari-ship of Thakurji Maharaj Sitaramji located at Ghat Gate, Jaipur was not hereditary and the descendants had no right to perform Puja of deity as 'pujari' by rotation?
3. Whether the plaintiffs' suit was barred by limitation?
4. Whether the suit filed by the plaintiffs was not maintainable without claiming possession in respect of their term of performing Seva Puja of the Temple of Thakurji Maharaj Sitaramji as pujari?
3) Facts of the case briefly stated are that plaintiffs-respondents Kishan Chandra and Gopi Chand jointly filed a suit for declaration of right of worshipping the deity of Mandir Thakur ji Maharaj Shri Sitaram ji situated at Agra Road, Near Ghat Darwaja, Jaipur and injunction against original defendant-Satya Narain, who was father of the present appellants and one Saligram S/o Shri Suraj Bux. Defendant-Satya Narain has been substituted by the present appellants as legal representatives during pendency of the first appeal. Salig Ram also expired during pendency of the suit and therefore his name was deleted. According to the plaintiffs, Kishan Chandra & Gopi Chand were real brothers of defendant-Satya Narain. Their father Shri Gheesilal expired on 3/5/1939. After his death, Satya Narain being eldest son, maintained the joint hindu family property. Plaintiffs at that time were minor and did not have requisite certificate from the devasthan department to act as pujari. Defendant-Satya Narain therefore used to perform the seva puja on behalf of the whole family during their 'Osra' (turn). A family settlement was arrived at between the members of family on 12/1/1957. Kashi Nath was originally appointed as priest (pujari of temple). He had four sons namely; Laxmi Narain, Chunnilal, Suraj Bux and Gheesilal. Thus, each one of them got 'Osra' of one year in turn. This is how they were entitled to receive the rent from the tenants of the shops of the temple and offerings received from devotees. Details about offerings of seven years were also given in the plaint. No mention was made in the family settlement of division of 'Osra' because right of worshipping was not a divisible right. Defendants-Satya Narain & Radha Mohan, who is father of defendant No.2 Ram Ratan, and the plaintiffs, who were four sons of Gheesilal and therefore each one of them were entitled to 'Osra' of three months within one year, that came to the family of Gheesilal. Defendant-Satya Narain despite the fact that plaintiffs have procured certificate from the devasthan department for seva puja, did not allow them to do so. Plaintiffs submitted an application before the Assistant Commissioner of Devasthan, Jaipur, who vide order dated 17/3/1958 observed that though the plaintiffs appear to be entitled for share but this issue should be decided by the civil court and rejected the application. Plaintiffs thereagainst approached the Commissioner Devasthan by filing appeal, which was dismissed vide order dated 9/3/1959. Plaintiffs could not have filed the civil suit without availing statutory remedies before the aforesaid authorities, which constituted a special tribunal. It was thereafter that the combined 'Osra' of the plaintiffs and the defendants, all four sons of deceased Gheesilal, fell due from 6/8/1961 to 5/8/1962. Defendant-Satya Narain had his 'Osra' of three months within one year from 6/8/1961 to 5/11/1961. Thereafter, he continued to perform the seva puja with Ram Ratan, minor son of Radha Mohan, with the consent of his mother, who was his natural guardian. When however the 'Osra' of plaintiffs began from 6/2/1962, defendant-Satya Narain declined permission to them to perform the seva puja. Right to worship therefore accrues to the plaintiffs on that day and the suit was thus filed within the period of limitation as per Article 133 read with Section 30 of the Limitation Act.
4) Defendant-Satya Narain contested the suit by filing written-statement. He disputed the family settlement disclosed by the plaintiffs in the plaint and stated that Kashi Nath had only two sons; Suraj Bux and Gheesilal and not four sons. Assertion that he had two more sons namely; Laxminarain and Chunnilal, was refuted. Suraj Bux had two sons; Sitaram and Saligram. While Sitaram died during the lifetime of Suraj Bux, Suraj Bux also died during the lifetime of Saligram. Laxmi Narain and Chunnilal cannot be said to be sons of deceased Kashi Nath. Defendant-Satya Narain even denied the fact that the temple belongs to Kashi Nath. In fact, Kashi Nath was merely appointed as pujari when the temple was situated in Rambagh, which was later shifted to the present location in 1947. After his death, Suraj Bux and Gheesilal were appointed as pujaris. After Suraj Bux died, Saligram was appointed as pujari in his place by the devasthan department. Plaintiffs had no right of seva puja. Devasthan department gave certain shops to the temple to recover the rent of the shops by the pujari for the purpose of maintenance of the temple and also gave them houses for their residence. Right of seva puja is not an inheritable right and it did not devolve upon any one. Pujari was only appointed in this temple. This right is not the right of the family members of plaintiffs. This is in fact by grant of the Devasthan Department, Government of Rajasthan. It is neither divisible nor transferable. In additional plea, it was submitted that even family settlement was made on 12/1/1957 wherein there was no division of right of seva puja. The defendant has exclusive right to do so from 12/1/1957 onwards. Possession of defendant relates back to last more than twenty years, which has been hostile to the plaintiffs. It was therefore prayed that the suit be dismissed.
5) The learned trial court framed as many as ten issues. After the parties led their evidence, it dismissed the suit vide judgment & decree dated 7/5/1970. Appeal thereagainst was filed by the defendant. The learned first appellate court i.e. Additional District Judge framed two additional issues, which were framed on an application of the plaintiffs, namely:-
(i) Whether the family trees so disclosed in para 2-B of the plaint was correct? and
(ii) Whether right of seva puja in the temple was hereditary right of those and therefore inheritable by devolving upon family members of deceased Gheesilal?
6) The matter was remanded to the learned trial court for deciding those issues. The learned trial court vide order dated 7/1/1984 decided the issue with regard to temple being hereditary in favour of plaintiffs and the issue regarding correctness of family tree was decided against the plaintiffs. Learned appellate court vide judgment & decree dated 18/3/1989 allowed the appeal and decreed the suit in favour of the plaintiffs.
7) Shri M.M. Ranjan, learned senior counsel has put in appearance for the appellants whereas, no one has appeared on behalf of the plaintiffs-respondents despite service of notice and no one has appeared during course of hearing and therefore their case is being examined on the basis of the findings recorded by the learned courts below and the evidence on record.
8) Shri M.M. Ranjan, learned senior counsel appearing for the appellants has argued that the first appellate court has erred in law in holding that the suit filed by the plaintiffs-respondents was within the period of limitation. Learned appellate court has wrongly reversed findings of the trial court on Issue No.4. In fact, one plea of the plaintiffs in the plaint was that Assistant Commissioner Devasthan Department rejected their application on 17/3/1958 and the Devasthan Commissioner rejected the appeal thereagainst on 9/3/1959. Cause of action thus arose before these two dates because according to the plaintiffs, defendant did not allow them to do the seva puja even before 12/1/1957, which is why they approached the Assistant Commissioner Devasthan and thereafter Commissioner Devasthan department. Suit was thus filed ten years thereafter on 6/11/1973. Suit would be barred by limitation by virtue of Article 120 of the Limitation Act 1908, which is equivalent to Article 113 of the Limitation Act, 1963. Period of limitation for filing such suit was only six years. By virtue of Section 30 of the Limitation Act, suit should have been filed within five years from commencement of the new Act. The learned first appellate court therefore erred in law in applying the provisions of Articles 131 and 124 of the Limitation Act and proviso to Section 30 of the Limitation Act. Shri M.M. Ranjan, learned senior counsel argued that original defendant-Satya Narain was in exclusive possession since 1939 and the plaintiffs-respondents never remained in possession of the temple and did not perform the seva puja since 1939. Suit was thus barred by limitation. The first appellate court was wholly unjustified in holding that right of seva puja in the temple or, for that matter office of pujari, is hereditary in nature. This finding was contrary to the pleadings in the plaint wherein it is stated by the plaintiffs that pujari can only be appointed if he possesses the requisite certificate from the devasthan department, which is granted only on certain qualification. If this is a condition of appointment/recognition as pujari, it cannot be hereditary in nature.
9) Shri M.M. Ranjan, learned senior counsel argued that two additional issues that were framed by the first appellate court were against the averments of the plaint, which was allowed by the appellate court. It was at the appellate stage for the first time, that the plaintiffs took the plea of office of pujari being hereditary in nature, which plea could not be allowed belatedly. Even otherwise, the Government subsequent to the death of original defendant Satya Narain has issued notification on 25/6/1981 wherein, nature of temple has been shown as government temple and defendant was appointed as pujari vide Ex.A/5. That evidence has been misread and misconstrued by the learned first appellate court. Finding recorded by the said court therefore suffers from perversity. PW-1 Gopi Chandra stated that devasthan department was managing the affairs and granting expenses of Rs.11/- per month for the temple but in the cross-examination stated that it is only devasthan department, which appoints pujari on application submitted by a person concerned, which is subject to utility and qualification. PW2 Gopiram also stated that the temple was our temple and devasthan appoints pujari. PW3 Gouri Shankar also stated that temple is also a government temple and payment to pujari was always made by the devasthan department. It is argued that pujari or archak is only a servant of the Shebait and no part of rights of worship of the deity is transferred to it. Learned appellate court failed to appreciate that if right of seva puja was to be a joint right of all four brothers, it would have definitely been mentioned in the family settlement dated 12/1/1957 by which various properties were partitioned. Statement of PW1 Gopi Chandra has thus been misread. Suit is also time barred because plaintiff No.1 became major in 1947 and the suit has been filed in 1973. It cannot also therefore be said that rights of the minor have been infringed. The plaintiffs could not be entitled to claim any benefit of Section 133 of the Limitation Act because Assistant Commissioner, Devasthan, or Devasthan Commissioner cannot be said to be courts within the meaning of that provision.
10) Shri M.M. Ranjan, learned Senior Counsel in support of his arguments relied on the judgments of Supreme Court in Balakrishna Savalram Pujari Waghmare and others Vs. Shree Dhyaneshwar Maharaj Sansthan and others : AIR 1959 SC 798 & Sambudamurthi Mudaliar Vs. The State of Madras and another : AIR 1971 SC 2363. He therefore argued that the appeal may be allowed and the judgment passed by the appellate court be set-aside and the suit filed by the plaintiffs be dismissed.
11) I have given my anxious consideration to the submissions made at the bar and perused the impugned-judgment & order and other material available on record.
12) The question, which needs to be first considered and decided is whether office of the pujari in the temple in question was hereditary in nature or it was given by the devasthan department by grant to defendant-Satya Narain to the exclusion of all other three legal heirs of deceased-Gheesilal namely; his brothers. Argument raised on behalf of the appellants is that since there is no automatic devolution of the rights of seva puja, which is descendant on the condition of grant of certificate by the devasthan department, which in turn is subject to the condition of passing 'Dharam Sabha' examination, it cannot be considered hereditary. PW-1 Gopi Chandra in his statement stated that after the death of Gheesilal in 1939, all his four sons including defendant No.1-Satya Narain lived together till 1957. Satya Narain used to perform seva puja on behalf of the entire family. Since their grand-father Kashi Nath was appointed as first pujari, his descendants used to get this right in succession and on that basis they were his successors. PW2 Gopiram also stated that Satya Narain did seva puja on behalf of four brothers for a period of one year. It was not known whether their shares have been divided or not. PW3 Gauri Shankar also stated that seva puja was performed by Satya Narain on behalf of all four brothers. PW4 Chandra Prakash, who is employee of the devasthan department produced registers Exb.2, 3 and 4 and stated that pujaris in this temple were performing the seva puja on hereditary basis. However, entry of pujari in the register was made only when he passed the 'Dharam Sabha' examination. PW5 Kishan Chandra, another plaintiff, in his statement has stated that the right of seva puja in this temple was hereditary. At the time of death of their father Gheesilal, except Satya Narain all other brothers were minor yet they have share in such a right of worship. DW1 Badri Narain Sharma S/o Satya Narain in his statement has stated that after the death of Kashi Nath, Suraj Bux and Gheesilal were appointed as pujari and after the death of Gheesilal, Satya Narain was appointed as pujari. Although in his cross-examination, he pleaded ignorance about the fact that after death of Satya Narain has any other was appointed as pujari. DW3 Hanuman Singh has also stated that for appointment as pujari, one has to qualify the 'Dharam Sabha' examination and Badri Narain S/o Satya Narain had made an application for his appointment as pujari. To his knowledge, no one has so far been recognized as pujari from outside the family. After death of father, son gets the right of title of seva puja as a hereditary right.
13) In the face of all the evidence marshalled alone, there is no scope for the argument that the office of pujari or right of seva puja in the present temple was not the hereditary right or it was given to an individual pujari as a grant by the devasthan department. Such an argument is wholly untenable in the facts of the case particularly when after the death of Kashi Nath, his sons were appointed as pujari and after his death, his descendants were recognized as pujaris. In fact, there is no evidence that any one from outside the family tree was appointed as recognized pujari nor is there any evidence that any pujari once recognized was removed from the office of pujari. Argument of the appellants that office of pujari is not hereditary or right of seva puja in the temple in question is not hereditary is therefore rejected.
14) In Sital Das Vs. Sant Ram : AIR 1954 SC 606, it was held by the Supreme Court that succession to Mahantship of a math or religious institution is regulated by custom or usage of the particular institution, except where a rule of succession is laid down by the founder himself who created the endowment. In that case, it was held that if the Mahant does not leave a 'chela' behind him, no appointment could at all be made. It cannot also be disputed that the Mahantship is not hereditary in the sense that on the death of an existing Mahant his 'chela' succeeds to the office as a matter of course. He cannot acquire rights only by appointment and the authority to appoint is vested in the 'bairagis' and worshipers of the temple.
15) In Ganesh Chunder Dhur Vs. Lal Behary : AIR 1936 PC 318 and Bhabatarini Debi Vs. Ashalata Debi : AIR 1943 PC 89, Supreme Court held that ordinarily a 'shebaitship' or the office of 'dharmakarta' is vested in the heirs of the founder unless the founder has laid down a special scheme of succession or except when usage or custom to the contrary is proved to exist.
16) In the present case, evidence clearly shows that the temple was built by the erstwhile Jaipur State and in course of time, it was handed over to the devasthan department, which appointed Kashi Nath as pujari and after his death, his two sons and on the death of his sons, their sons were recognized as pujari. Word appointment used at different places herein and in the impugned judgments is a misnomer. It actually means that they were recognized as pujaris by the devasthan department and has to be understood as such.
17) Coming now to the question whether suit was barred by limitation, it has to be noted that in the present case, the suit was filed on 6/11/1973 and at that time the Limitation Act, 1963 was in vogue. However, according to the plaintiffs, the 'Osra' of the descendants of Gheesilal to offer seva puja fell due from 6/8/1961 to last till 5/8/1962 and within that period, 'Osra' of plaintiffs was to commence from 6/2/1962. When plaintiffs wanted to perform seva puja, defendant-Satya Narain did not permit them to do so. Plaintiffs thus have claimed that the suit was within limitation.
18) On remand from the first appellate court, learned trial court decided the issue of the right of seva puja being hereditary in favour of the plaintiffs, but held the suit barred by limitation. Trial court in arriving at that conclusion was guided by the fact that cause of action arose after 12/1/1957 when the defendant did not allow the plaintiffs to offer seva puja and they applied before the Assistant Commissioner Devasthan for redressal of grievance. It was held that Article 120 of the Indian Limitation Act, 1908 (which is equivalent to Article 113 of the Limitation Act, 1963) would apply wherein there is limitation of six years. According to Section 30 of the Limitation Act, suit should have been filed within five years after commencement of the new Act or within the period prescribed by the Act of 1908, whichever period was earlier. The suit was already time barred. Contention is that limitation has to be counted from the date Assistant Commissioner Devasthan rejected the application on 17/2/1958 or at least when Commissioner Devasthan dismissed the appeal on 9/3/1959 and counting from any of those dates, the suit would be time barred. It was held that plaintiffs failed to prove the fact that their 'Osra' started from 6/8/1961 therefore, this also cannot be considered as the date on which any cause of action can be said to arise. Necessity for the plaintiffs to file application before the Assistant Commissioner and appeal before the Devasthan Commissioner arose on 12/1/1957 when defendant denied the right of seva puja and therefore suit was barred by limitation. Learned appellate court however has reversed the finding of the learned trial court by holding that Articles 124 and 131 of the Act of 1908 would be applicable in this case and not Article 120 of the Act, according to which twelve years was period of limitation and therefore as per dates indicated above, this suit would be treated within limitation. In this connection, trial court proceeded on the assumption that it was a suit wherefore no specific period of limitation was provided in the Limitation Act therefore it applied Article 120 of the Act of 1908, which corresponds to Article 113 of the new Act read with Section 30. It was thus held that outer period of limitation should be as five years. In my view, when the matter is examined from the point of view of the appellate court, it would be seen that Article 124 surpa deals with the suits filed for possession of hereditary office wherefor the period of limitation is twelve years with stipulation that starting point however when the defendant takes possession of the office adverse to the plaintiffs. Similarly, Article 131 deals with the suits filed to establish a periodically recurring right for which also, period of limitation is prescribed as twelve years.
19) Consideration of the plaint and the nature of prayers that have been made therein evidently shows that the suit in the present case could not fall within the scope of Article 120 of the Act of 1908, which corresponds to Article 113 of the new Act. Article 120 provides six years period of limitation corresponding to Article 113 of the new Act, where period of limitation is only three years. With the aid of Section 30 of the new Act however, what was held was that only five years would be the period of limitation for filing of the suit.
20) A perusal of the prayer clause in the plaint in the present case reveals that the reliefs sought for by the plaintiffs were relating to right of office of pujari and its ancillary right of offering seva puja and in the capacity of pujari, right of receiving consequential share in offerings and the rent etc. from the shops of the temple for the relevant period. This indicated as a recurring right because out of the four shares of the legal heirs of the original pujari Shri Kashi Nath, one share by virtue of right of hereditary devolved upon Gheesilal and consequently his four sons or legal heirs, who as per the arrangement got the 'Osra' of three months within one year. It was also therefore a recurring right because each one of them would get the right of seva puja and receiving of offerings and rent of shops of the temple etc. after every three years and nine months.
21) Shri M.M. Ranjan, learned senior counsel on this aspect of law has relied on the judgment of Supreme Court in (1) Balkrishna Savalram Pujari Waghmare and others, (2) Duttatraya Gangaram Pujari Waghmare Madhav Tukaram Pujari and others, (3) Babu Tukaram Pujari Waghmare and others Vs. Shree Dhyaneshwar Maharaj Sansthan and others : AIR 1959 SC 798 to support his contention and seek reversal of the findings of the appellate court on the question of limitation. It was held by the Supreme Court in Balkrishna Savalram Pujari Waghmare supra that before applying Article 124 of the Act of 1908, it is essential that the defendant must be in adverse possession of the hereditary office. It was held that the plaintiff was out of possession of the hereditary office for more than twelve years before the date of his suit would not defeat his claim for possession of the said office. What would defeat his claim is the adverse possession of the said office by the defendant for the prescribed period, as the explanation makes it clear. Usually the receipt of the profits may amount to the possession of the office, but if the defendant merely receives the profits and does not perform the duties which are usually performed by the holder of the office, the receipt of the profits by itself may not amount to the possession of office.
22) However, the suit out of which the aforesaid judgment of Supreme Court was rendered did not arise out of dispute between rival claimants but that was filed by the servants appointed by trustee which used to manage the affairs of the institution to perform the duties of worship, and therefore it was held by the Supreme Court that trustees cannot be said to have taken possession of the office adverse to the appellant. Article 124 of the Act of 1908 was therefore held inapplicable. That judgment therefore cannot have any direct application to the facts of the case, nevertheless it does provide meaningful guidance for deciding the controversy involved even in this case.
23) In Sarkum Abu Tarab Vs. Rahaman Buksh, AIR 1924 Calcutta 83 (90), plaintiffs filed a suit for declaration that they were hereditary khadims of certain Dargah and they have right of performing the duties for 21 days in each month and to receive offerings made by the pilgrims of that Dargah during that period. Article 124 of the Schedule to Evidence Act, 1908 supra was held to be applicable.
24) In Singaravelu Mudaliar Vs. Chokka Mudaliar alias Chokkalinga Mudaliar : AIR 1923 Madras 88, it was held that the suit declaring hereditary manager of a temple and for possession would be governed by Article 124 supra observing that there is no distinction of limitation regarding claim of the office and for endowment.
25) Calcutta High Court in Panchanan Banerjee and another Vs. Surendra Nath Mukerjee and others : AIR 1930 Calcutta 180 held that there can be no case of adverse possession in co-ownership because possession of one co-owner is possession of all. In order that it should be treated his adverse possession, there must be ouster or equivalent to an ouster. The party pleading adverse possession should therefore prove that the possession of persons through whom he claims is adverse and amounts to ouster.
26) In the present case too, when Satya Narain was recognized as pujari after the death of his father Gheesilal, plaintiffs were minor and thereafter on attaining majority they were recognized as pujaris but defendant in the meantime continued to offer seva puja during the time of their common 'Osra'. It is trite that period of limitation would start running only when there has been definite demand, which is what has happened on 12/1/1957 when the plaintiffs demanded right of offering seva puja on its turn (Osra) and defendant declined; for which reason, plaintiffs approached the Assistant Commissioner Devasthan. He cannot be held to have held possession adverse to the plaintiffs. Even if it is accepted that for the earlier period till he declined permission to the plaintiffs to offer seva puja in 1957, then also the suit was filed within the period of limitation from then as so rightly held by the learned first appellate court.
27) In Janki Raman Pd. Mishra and another Vs. Koshalyanandan Pd. Mishra and others : AIR 1961 Patna 293, it was held that right to periodically manage affairs of a deity and its property on the basis of shebaitship, which is hereditary office, on its turn by the plaintiffs is a recurring right attracting both Articles 124 and 131 of the Indian Limitation Act, 1908. These articles prescribed a period of twelve years as limitation from the date of refusal of enjoyment of the plaintiffs' right or from the date when the defendant's possession became adverse to the plaintiffs.
28) Defendant was recognized as pujari by the devasthan department when the plaintiffs were minor and used to perform the seva puja on behalf of four brothers in the share during one year allotted in rotation to his father Gheesilal and he was already in possession for office purpose and therefore for the period anterior to 1957 when he specifically denied permission to the plaintiffs to offer seva puja, his possession cannot be said to be adverse to the plaintiffs.
29) In Lachhmi and others Vs. Ram Rup Sahu and others : AIR 1944 PC 24, it was held that after the settlor's death his successor would have the right of management of family idol descending by inheritance. In that case, eldest members of the family, who were managing the affairs of the family, claimed adverse possession against other members of the family. Repelling that argument, it was held by the Privy Council that representatives should in fact be allowed to see to the debasheba (seva puja) to collect the income and to defray the proper expenses is very far from being cogent proof of ouster and therefore his possession is not adverse to the other members and therefore his possession was held to be not adverse possession to other members.
30) In view of what has been discussed above, conclusion at which the learned first appellate court arrived about applicability of Articles 124 and 131 of the Act of 1908 to hold that the suit filed by the plaintiffs in the present case was not barred and was in limitation, cannot be faulted.
31) Appeal is therefore dismissed. Parties to bear their own costs.
(MOHAMMAD RAFIQ), J.
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