Madhya Pradesh High Court
Murti Shri Ganesh Ji Mandir Situated At ... vs The State Of Madhya Pradesh on 8 January, 2019
1
The High Court of Madhya Pradesh
SA 885/2018
Maruti Shri Ganjesh Ji Mandir & Ors vs. State of MP
Gwalior, dtd. 08/01/2019
Shri DD Bansal, counsel for the appellant Nos.(1) & (2).
Shri AK Nirankari, Government Advocate for the respondents/
State.
This Second Appeal under Section 100 of CPC has been filed against the judgment and decree dated 31/01/2018, passed by First Additional District Judge, Ashok Nagar in Civil Appeal No.1A/2018, thereby reversing the judgment and decree dated 30/01/2016 passed by Third Civil Judge, Class-II, Ashok Nagar in Civil Suit No.88-A/2014.
The necessary facts for the disposal of the present appeal in short, are that the plaintiffs/appellants had filed a suit for declaration of title, permanent injunction and restoration of possession after removal of construction/encroachment with respect to land bearing Survey No.234 area 0.031 hectare and Survey No. 235 area 0.460 hectare. It was the case of the plaintiffs that Deity Shri Ganjesh Ji is ''Bhusmiswami'' of the disputed land of which Rajendra and Jagdish Prasad are the Pujaris and their names were also recorded in the revenue records. Initially, the father of Rajendra and Jagdish Prasad was the Pujari and after his death, the plaintiffs were appointed as Pujaris by the Society by order dated 25/09/1987.On the land bearing Survey No.242 area 0.146 hectare and Survey No.246 area 0.345 hectare, Government Hospital is situated and the Officers of the Hospital, want to encroach upon the disputed land and, therefore, they have constructed a Postmortem Room and garage on the disputed land after digging a hole. They are throwing garbage etc. It was the case of the plaintiffs that the property of the Deity is a Muafi 2 property and the Collector is the Manager (Shebait) of the suit property. The plaintiffs have brought fact of encroachment to the notice of the Collector, who had restrained the respondents from encroaching upon the land in question, however, the respondents are continuing with their illegal activities and thus, the suit was filed.
The trial Court by judgment and decree dated 30/01/2016 decreed the suit. The respondents No.1 and 2, being aggrieved by the judgment and decree passed by the trial Court, filed an appeal which has been allowed by the appellate Court, by judgment and decree dated 31/01/2018 and has set aside the judgment and decree passed by the trial Court and the civil suit filed by the plaintiffs/appellants has been dismissed.
Being aggrieved by the judgment and decree passed by the Appellate Court, it is submitted by the counsel for the appellants that the trial Court had appointed a Commissioner under Order 26 Rule 9 of CPC, who had submitted a report that the defendants have encroached upon the land belonging to the Temple and, therefore, the observations made by the appellate Court that the present is a case of dispute regarding boundary and,therefore, without obtaining demarcation report, the trial Court should not have directed the respondents to vacate the disputed land and to hand over the possession of the suit land to the Temple, is contrary to record.
Considered the submissions made by the counsel for the appellants.
In the present case, it is the case of the appellants that the Deity Shri Ganjesh Ji is the owner of the property in dispute and they are the Pujaris and being Pujaris they are entitled to protect the interest of the Deity. However, it is also an admitted position that the Deity Shri Ganjesh Ji Temple is a Muafi property and the 3 Collector is the Manager (Shebait) of the suit property. It is well- established principle of law that the Shebait is responsible for maintenance and protection of the property belonging to the Deity.
The Supreme Court in the case of Vemareddi Ramaraghava Reddy and Others vs. Konduru Seshu Reddy and Others, reported in AIR 1967 SC 436 has held as under:-
''(12) The next question presented for determination in this case is whether the compromise decree is invalid for the- reason that the Commissioner did not represent the deity. The. High Court has taken the view that the Commissioner could not represent the deity because S. 20 of the Hindu Religious & Charitable Endowments Act provided only that the administration of all the endowments shall be under the superintendence and control of the Commissioner. Mr. Babula Reddy took us through all the provisions of the Act but he was not able to satisfy us that the Commissioner had authority to represent the deity in the judicial proceedings. It is true that under s. 20of the Act the Commissioner is vested with the power of superintendence and control over the temple but that does not mean that he has authority to represent the deity.-;in proceedings before the District Judge under s. 84(2)of the Act. As a matter of law the only person who can represent the deity or who can bring a suit on behalf of the deity is the Shebait, and although a deity is a juridical person capable of holding property, it is only in an ideal sense that property is so held. The possession, and management of the property with the right to sue in respect thereof are, in the normal course, vested in the Shebait, but where, however, the Shebait is negligent or where the Shebait himself is the guilty party against whom the deity needs relief it is open to the worshippers or other persons interested in the religious endowment to file suits for the protection of the trust properties. It is open. in such a case, to the deity to file a suit through some person as next, friend for recovery of possession of the property improperly alienated or for other relief. Such a next friend may be a person who is a worshipper of the deity or as a prospective Shebait is legally interested in the endowment. In a case where the Shebait has denied: the right of the deity to the dedicated properties, it is obviously desirable that the deity should file the suit through a disinterested next 4 friend, nominated by the court. The principle is clearly stated in Pramath Nath v. Pradymna Kumar.(1) That was a suit between con- tending shebaits about the location of the deity, and the Judicial Committee held that the will of the idol on that question must be respected, and inasmuch as the idol was not represented otherwise than by shebaits, it ought to appear through a disinterested next friend appointed by the Court. In-, the present case no such action was taken by the District Court in O. P. no. 3 of 1950 and as there was no representation of the deity in that judicial proceeding it is manifest that the compromise decree cannot be binding upon the deity. It was also contended by Mr. P. Rama Reddy on behalf of respondent no.: I that the compromise decree was beyond the, scope of the proceedings in O.P. no. 3 of 1950 and was, therefore, in. valid. In our opinion, this argument is well-founded and must prevail. The proceeding was brought under s. 84(2)of the old Act (Act II of 1927) for setting aside the order of the Board dated October 5, 1949 declaring the temple of Sri Kodandaramaswami as a temple (1) I.L.R. 52 Cal. 809, (P. C.)defined in s. 6. cl. 17 of the Act and for a declaration that the temple was a private temple. After the passing of the new Act, namely Madras Act 19 of 1951, there was an amendment of the original petition and the amended petition included a prayer for a further declaration that the properties in dispute are the personal properties of the petitioner's family and not the properties of the temple. Such a declaration was outside the purview of s. 84(2) of Madras Act 11 of 1927 and could not have been granted. We are, therefore, of the opinion that the contention of respondent no. is correct and that he is entitled to a declaratory decree that the compromise decree in O.P. no.3 of 1950 was not valid and was not binding upon Sri Kodandaramaswami temple.
(13) We have gone into the question of the validity of the compromise decree because both the parties to the appeal invited us to decide the question and said that there was no use in court remanding the matter to the trial court on this question and the matter will be unduly protracted.'' If the plaint averments are considered in the light of the above-mentioned law laid down by the Supreme Court, it is clear 5 that the plaintiffs had approached the Collector, complaining the misdeeds of the defendants and the Collector had issued necessary instructions, thereby restraining the respondents from encroaching upon the land belonging to the Temple.
Paragraph 6 of the plaint reads as under:-
''6- ;g fd okns; Hkwfe ij izfroknh i{k dks fdlh izdkj vfrdze.k djus fuekZ.k dk;Z djus dk u rks dksbZ LoRo gS u oS/kkfud vf/kdkj gS okns; Hkwfe oknh eafnj ekQh dh Hkwfe gS o ,slh Hkwfe ij fdlh Hkh 'kklu d vU; foHkkx dks ugha fn;k tk ldrk gS ekQh Hkwfe ds izca/kd Lo;a dysDVj egksn; jgrs gS ijUrq iqtkjh;ks dh mDr Hkwfe dh vk; ls eafnj dk izca/k ,oa viuk o vius ifjokj ds isV ikyu dk vf/kdkj jgrk gS ;fn izfroknh i{k }kjk okns; Hkwfe ij fdlh izdkj dk tcju vfrdze.k dj okmUMªh oky cukdj ?ksj fy;k x;k o vke ds isM dkV dj fuekZ.k dk;Z fd;k x;k rks oknh i{k dks vlhe o viwrZuh; {kfr gksxh ftldk vkadyu laHko uagh gS blh dkj.k vius LoRoksa o vf/kdkjksa dh lqj{kk gsrq o vU; lgk;rkvksa gsrq ;g nkok is'k gSA N¼v½ ;g fd nkSjku nkok&/kkjk 80 tk0nh0 ds uksfVl ds ckn izdj.k esa rkehyh mijkar ihBklhu U;k;k/kh'k ds vodkl ij gksus dk ykHk mBkrs gq;s izfroknh i{k us iqfyl o vf/kdkjh;ksa ds vf/kdkjksa dk nq:i;ksx dj tcju losZ dzekad 234]235 dh djhcu ,d tjhc pkSM+h ,oa 3 tjhc 30 dM+h yEch Hkwfe tks fd dfe'uj fjiksVZ fnukad 28@01@2014 ds lkFk layXu ekufp= esa nf'kZrkuqlkj ckmU.Mªhoky cukdj vkoklh; DokVlZ ¼v/kqjs½ cuk;s gSa mDr vfrdze.k rFkk nkok iwoZ cuk;s ih0,e0 gkml o dpjs ds xMMs lfgr gVok;sa tkdj oknh dks vf/kiR; okfil djk;s tkus ;ksX; gSA'' Thus, it is clear that the plaintiffs/Pujaries have filed the present suit in the name of the Deity because they are earning livelihood from the Temple.Thus, the suit was filed for the protection of personal interest by the Pujaris. Furthermore, specific objection was raised before the trial Court by the defendants that since the Collector is the Manager (Shebait) of the Deity, therefore, without permission and consent of the Collector, the suit is not maintainable. However, it appears that the trial Court without considering the law laid down by the Supreme Court in the case of Vemareddi Ramaraghava Reddy (supra), had rejected the said objection by order dated 19/12/2008. In the opinion of this Court, 6 in absence of any adverse pleading against the Collector/Manager (Shebait) of the Deity, the Pujaris were not entitled to file the suit. Had it been the case of the Pujaris that the Collector is working to the detriment of the interest of Deity, therefore, they are liable to file the suit for the protection of the property belonging to the Deity, then the suit was maintainable. However, the case of the plaintiffs themselves are that when they approached the Collector, the Collector had restrained the respondents from encroaching upon the land belonging to the Temple. Thus, in absence of any pleading against the Collector/Manager (Shebait), this Court is of the considered opinion that the suit filed by the Pujaris on behalf of the Deity was not maintainable. Further, the appeal against the judgment and decree passed by the trial Court was filed by the Chief Medical & Health Officer as well as the Collector of District Ashok Nagar. The Collector being, Shebait of the Deity, is responsible for maintenance of the Temple and since the suit was filed by the Pujaris for protection of their personal and vested interest, this Court is of the considered opinion that the trial Court committed material illegality by rejecting the objections filed by the respondents with regard to maintainability of the suit in absence of consent of the Manager of the Deity.
Accordingly, this Court is of the considered opinion that this appeal lacks merits and it is hereby dismissed.
(G. S. Ahluwalia) Judge MKB MAHENDRA KUMAR BARIK 2019.01.10 16:35:06 +05'30'