Madhya Pradesh High Court
Smt.Shantabai Thru. ... vs The State Of M.P. on 24 April, 2017
1
HIGH COURT OF MADHYA PRADESH BENCH AT INDORE
(S.B.: HON. SHRI JUSTICE PRAKASH SHRIVASTAVA)
First Appeal No. 200 of 1994
Shantabai (deceased) through LRs Shaiventi
and others
Appellants
Versus
State of MP
Respondent
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Shri S.C. Bagadiya learned senior counsel with Shri D.K.
Chhabra learned counsel for appellants.
Shri Sunil Jain learned Additional Advocate General with
Shri C.S. Ujjainia, learned counsel for the respondent.
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Whether approved for reporting :
JUDGMENT
(Passed on 24/4/2017 ) This first appeal under Section 96 of CPC is at the instance of the plaintiffs challenging the judgment of trial court dated 27th July, 1994, whereby CS No. 29-A/1991 has been dismissed.
2/ The appellants had filed the suit for declaration and permanent injunction pleading that Krishnachandra, husband of appellant no.1 and father of appellants no. 2 to 4 was offering prayer in Shani Mandir which is the subject matter of suit and is situated at Triveni Sangam, 8 kms away from Ujjain Indore Road. The temple is about 400-450 years old. Further plea was raised that appellant's ancestors for last 4-5 generations were managing the temple and temple was in-dilapidated condition 2 which was renovated by their ancestors. Sanad of the temple was given by Mohd. Shah Badshah Gaji Saiyeed Khan to Shri Ganpatji and Ganpatji had installed the idol of Shani Maharaj and Navgrah. His LRs Shivlalji and then Jamanalal during their lifetime had installed the idol and Navgrah in the present form. Thereafter Maheshwarji son of Jamanalalji had constructed a Dharamshala and a residential house and since cows were also received in offering, therefore, a place for cows was made. Maheshwarji had renovated the temple 60-65 years back and had constructed a platform near the temple and also developed a garden. In view of the increasing popularity of the temple Ratan Anjana and Ranchhod Anjana who were posted in Malvibhag of the government in Ujjain tried to obtain illegal monetary benefits from the appellants which was not fulfilled therefore, through one Harisingh Anjana they had made an application to the Collector and an attempt was made to put an offering box (Daan Peti) in the temple and to delete the name of appellants from the revenue record. In the revenue record, the appellants' name was existing for years 1983-84, 85-86, 87-88 but copy of the record was not provided to the appellants for the year 1991 and their name was deleted from the revenue record without giving any notice, therefore, the appellants had given the notice under Section 80 of CPC to the State and thereafter had filed the present suit.
3/ The suit was opposed by respondent/State taking the stand that the suit temple belongs to government and it is not a personal property and government appoints Pujari for offering prayer in the suit temple and Pujari is paid Nemnuk by the government and name of appellants is not recorded as Pujari in 3 government record but the name of appellants' ancestors and Shri Gajanan Dibbewala of the present generation is recorded as Pujari and he is paid Nemnuk. It was further pleaded that earlier Jamanalal was appointed as Pujari who had died on 15/10/1911 and his son Maheshwar had given the application for appointment of Pujari but before he could be appointed Pujari, he had also died therefore, Siddheshwarji was appointed Pujari and thereafter his son Munna and then Gajanan was appointed. It was further pleaded that the temple is situated in Aabadi land survey No. 6 (old No. 4) under ownership of the government and though the appellants had pleaded that they had received Sanad from Mohd. Shah Badshah Gaji Saiyeed Khan but who was this Mohd. Shah Badshah Gaji Saiyeed Khan was not disclosed and Sanad even otherwise does not relate to the suit temple.
4/ Trial court had permitted the parties to lead evidence and therefore, on appreciation of evidence has found that appellants could not prove that suit temple was their ancestral and personal property and they are in possession thereof as owner. It has further been found that renovation of the suit temple and new construction was done from the offerings made in the temple and gift by the devotees. The new construction was done with silent approval of the State. It has further been found that suit temple is a public temple belonging to the government in which Pujari is appointed for taking care of the temple. The trial court further found that appellants could not prove that on the basis of their peaceful possession they had acquired the Bhumi Swami right. Accordingly the suit has been dismissed.
45/ Learned counsel for appellants submits that appellants are owners of the suit premises and the court below has committed an error in holding the government to be titleholder. He has also advanced an alternate argument that appellants have been found to be Pujari of the suit temple therefore, decree be granted in their favour permitting them to continue as Pujari and to restrict the respondent from interfering their Pujari work. In this regard he has placed reliance upon judgment of the Supreme court in the matter of Firm Sriniwas Ram Kumar Vs. Mahabir Prasad and others reported in AIR 1951 SC 177 and has submitted that inconsistent prayer can be made and the same can be allowed based on the admission of the respondent in the written statement.
6/ Learned counsel for respondent has opposed the submissions and has submitted that there is no cogent material to establish the tile of appellants and alternate prayer for declaring the appellants as Pujari and granting decree to continue them as Pujari cannot be granted because no such prayer has been made in the plaint. Relying upon the judgment of the Supreme court in the matter of Sayed Muhammed Mashur Kunhi Koya Thangal Vs. Badagara Jumayath Palli Dharas Committee and others reported in (2004) 7 SCC 708 he submits that merely on the basis of the admission in the written statement the alternative prayer which is not made in the plant cannot be granted and that even otherwise no such admission has been made.
7/ I have heard the learned counsel for parties and perused the record.
8/ The main issues involved in this appeal are if the 5 appellants have been able to establish their title on the suit temple and if not then whether their alternative prayer for declaring them as Pujari on the basis of findings recorded by the trial court as well as the admission of respondent can be granted and decree can be passed permitting the appellants to continue as Pujari?
9/ So far as the first issue i.e. the issue of title is concerned, the claim of appellant is based upon the plea that Sanad was granted by Mohd. Shah Badshah Gaji Saiyeed Khan to late Shri Ganpatji on the basis of which Ganpatji had received rights on the temple but no such Sanad has not been proved by appellants. They have also not proved as to who was Mohd. Shah Badshah Gaji Saiyeed Khan and whether he was competent to give any such Sanad. Hence there is no title document in favour of appellants. The appellants have tried to establish their title on the suit temple on the basis of oral evidence but the same also does not inspire confidence as will be discussed in the later part of this judgment. 10/ In the present case the appellants have examined 7 witnesses namely PW-1 Bharat Kumar, PW-2 Smt. Shantabai, PW-3 Bherulal Pandya, PW-4 Prakash Chandra, PW-5 Sana Mohd. PW-6 Bhojraj and PW-7 Chand Khan and have produced the documents Ex. P-2 letter of Additional Collector to the Tehsildar to appear and keep the concerned employees present in court on 6/4/1994 for evidence as also Ex. P-3 the enquiry report of the Sub Divisional Officer Ujjain about the management of donation box of the suit temple. 11/ As against this respondents have examined DW-1, Madhav, the Additional Secretary of Board of Revenue, DW-2 6 Ganpatrao, Clerk Class I in Nazul Department, DW-3 Rajendra Prasad Joshi Clerk Class I in Tehsil office, DW-4 Prahlad Singh working as Revenue Record Lifter in Revenue Record Room, who had produced some of the original documents, DW- 5, Nagu, DW-6 Puralal, DW-7 Raghunathji, the members of Ajana Samaj, DW-8 V.D. Hirve Dy. Collector and DW-9 Sidhnath, agriculturist. The respondent had also produced the documents Ex. D-1 to D-36 in support of the plea in the written statement.
12/ Undisputedly the temple is an old temple and number of documents have been produced by the respondent in respect of suit temple. Ex. D-1 is Khasra entry for the year 1991 which contains the name of Anjana Samaj and possession of Shivlal, Krishnachandraji, Maheshchandra and records the land as Aabadi. Ex.D-2, Hindi Translation of which is Ex.D-3 is dated 1/11/1911 by which after the death of Jamanalal his son Maheshwarji had filed an application for appointing him as Pujari. In Ex. D-3 he had admitted that temple is a government temple. The family tree mentioned in this application discloses that Shivlal was son of Ganpatji, Jamanalal was son of Shivlal and Maheshwar and Siddhanath (Siddheshwar) were sons of Jamanalal. As per Exs. D-14 & D-15, Jamanalal was appointed as Pujari by respondent.
13/ The respondents in their written statement have raised specific plea that on the death of Jamanalal on 15/10/1911 Maheshwar son of Jamanalal had given application for appointment of Pujari but before his appointment he had died, therefore, Siddheshwar was appointed and on his death, his son Munna was appointed as Pujari and on the death of 7 Munna, Gajanan Dibbewala was appointed as Pujari and presently in place of Gajanan Dibbewala one Dayaldas Bairagi has been appointed as Pujari.
14/ The Pujari appointed by the State to take care of the temple had no right in properties of the temple and they were paid Nemnuk by the government. Exs. D-5 to D-9 are the documents by which Nemnuk was paid to Gajanan Dibbewala by the state government from time to time.
15/ The record reveals that vide Exs. D-14 & D-15 name of Jamanalal was recorded as Pujari and vide Ex. D-17 the application was made for recording name of Munnalal in which order Ex. D-20 was passed and name of Munnalal was recorded. Nemnuk was paid to Pujari by the government on the basis of certificate issued by earlier Akafi committee. Ex. D-23 was the certificate issued by Akaf Committee in favour of Munnalal certifying that he was performed Puja from 1/4/1986 to 31/3/1987 in the temple. Ex. D-16 is the register containing the entry of the name of Gajanan Dibbewalal as Pujari in suit temple and this also contains signature of Gajanan. Ex D-24 is the order of Aukaf officer issued from the office of Commissioner Division Gwalior in respect of distribution of Nemnuk to Pujari for the year 1991-92 at Ujjain and Ex. D-25 is Kabjul Nemnuk containing the details of distribution of Nemnuk in respect of suit temple. Nemnuk was distributed to Munna. Ex. D-31 is the order of Sub Divisional Officer dated 28th September 1991 disclosing that since Gajanan had failed to perform his duty as Pujari therefore, he was suspended and Shri Dayaldas son of Shri Raghuvards Bairagi was temporarily appointed and Ex. D-32 is the order of the state government 8 dated 11/1/1988 to record name of Collector alongwith Pujari in government control Temples to protect its properties. 16/ In Ex. D-26, the Khasra for the year 1911-12 the suit temple is recorded in the ownership of State and ancestor of the appellants is shown to be the Pujari. The defendant's witness DW-1 has stated that documents and list relating to the public temple used to be kept and government used to exercise control and appoint Pujari in those temple and pay Nemnuk. He has also disclosed that earlier power of appointment was with the council of Gwalior city and thereafter it was vested with the Commissioner Mafi.
17/ So far as the appellants are concerned, they have not filed any revenue entry or any document to substantiate the plea that appellants are title holders of the suit temple. It is the settled position in law that burden lies on the plaintiff to prove the plea taken in the plaint. In the present case apart from leading the oral evidence no documentary evidence of title on the suit property has been filed by the appellants therefore, the plea raised by appellants that they are owner of suit temple has not been proved and on the contrary on the basis of oral as well as documentary evidence of the respondent it has been proved that ancestors of the appellants were appointed as Pujari to offer prayer in the suit temple for which they were regularly paid Nemnuk by State.
18/ That apart the suit temple has been found to be a public temple by the trial court and appellants have failed to establish that it is their private temple. It is the respondent's own plea that offerings were received in the temple from the general public. The evidence discussed above reveals that the temple 9 belongs to government and Pujari was appointed by the government on payment of Nemnuk. In the revenue record the name of government as owner exists. The Collector has been appointed as Manager of the properties of the temple, in terms of the circular noted above.
19/ As against this no material has been produced by the appellants to establish that temple is a private temple therefore, it can safely be concluded that the temple is not a private temple but it is a public temple and the trial court has not committed any error in recording the finding in this regard. 20/ The appellants in order to show their title have also raised the plea that their ancestors had renovated the temple from their own funds. Such a plea is contrary to their own pleadings in the plaint that renovation work was done from the offerings received in the temple. In this regard statement of PW-2 Shantabai has been minutely examined by trial court and her statement that she had received money from her father for the work has been found to be false. Similarly nothing material has come out in the statement of PW-3 Bherulal which has been considered in paragraph 33 of the judgment of trial court. On the contrary the evidence led by the appellants itself reveals that renovation work of the temple was done from the offerings received in the temple because devotees were increased on account of increasing the importance of the temple. Even assuming that some renovation work was done by the appellants from their own funds that cannot lead to the conclusion that appellants had become the title holders. DW-5 Nagu had deposed that a Dharamshala was constructed in the year 1990 from contribution by members of Ajana Samaj and 10 repairing work was done from the public money received by the public and his submission is duly supported by the statements of DW-6 Puralal, DW-7 Raghunathji and DW-9 Siddhanath. In this regard Exs. D-33 to D-36 have rightly been considered by the trial court in paragraph 40 of the judgment. Hence the argument of counsel for appellants that renovation of the temple and reconstruction work was done by the appellants or their ancestors from their own funds is not supported by evidence. The appellants have filed Ex. P-3 the enquiry report of Sub Divisional Officer Ujjain. The report also mentions that in the revenue record the land is government land situated in Aabadi. From this report also the title of the appellants is not established.
21/ The witnesses of appellants PW-1 Bharat Kumar , PW-2 Shantabai, PW-3 Bherulal and other witnesses from PW-4 to PW-7 have not disclosed any material fact on the basis of which merely on the oral plea appellants can be held to be title holder.
22/ To substantiate the plea raised in the plaint, the appellants have only led the oral evidence and they have not filed any relevant document.
23/ As against this in rebuttal, the respondent has filed number of documents which are part of the official record and which are neither tempered nor manipulated. Hence they are worthy of reliance by this Court.
24/ Hence I am of the opinion that trial court has not committed any error in recording the finding that appellants are not the owners of the suit land.
25/ The alternate plea was raised by learned counsel for 11 appellants that on the basis of admission made in the written statement the appellants should be declared to be the Pujari of the temple and decree should be passed allowing them to continue as Pujari.
26/ Though the evidence on record indicates that trial court has also found that ancestors of appellants were appointed as Pujari in the temple but in view of the further facts noted below and additional plea in the written statement, the alternate prayer cannot be granted.
27/ The plea of appellants in the plaint is that Maheshwar and Siddhanath were sons of Jamanalal. Krishnachandra, husband of appellant no. 1 and father of appellants no. 2 to 4 was son of Maheshwar. It has not been admitted by respondent in the written statement that either Maheshwar or Krishnachandra was appointed as Pujari. On the contrary the special plea of respondent in the written statement is that Maheshwar had died before his appointment as Pujari and in his place Siddheshwar was appointed and after his death his son Munna was appointed and after Munna, Gajanan was appointed and presently that Dayaldas Bairagi is working as Pujari. Since there is no admission in the written statement that appellants are presently working as Pujari therefore, the argument that they are entitled to a decree on the basis of admission in the written statement is without any merit.
28/ That apart the person who is presently working as Pujari has not been impleaded in the matter, no such prayer was made in the plaint nor any issue was framed in this regard. The judgment in the matter of Mahabir Prasad (supra) relied upon by counsel for appellant does not come to his rescue even 12 otherwise because in that case also it has been held that ordinarily the court cannot grant relief to the plaintiff on a case for which there was no foundation in the pleadings and which the other side was not called upon or had an opportunity to meet but as an exception it has been held that when the alternative case, which the plaintiff could have made, is not only admitted by defendant in the written statement but expressly put forward as an answer to the claim which the plaintiff made in the suit, then there would be nothing improper in giving the plaintiff a decree upon the case which the defendant himself makes. But the present case stands on different footing since there is no admission of appellants about alternate claim in the written statement. In the judgment of the trial court also there is no finding that appellants or their father Krishnachandra were appointed and are working as Pujari in the suit temple. 29/ In this regard learned counsel for respondent has rightly placed reliance upon judgment in the matter of Sayed Muhammed Mashur Kunhi Koya Thangal (supra), in support of his submission that merely on the basis of admission in written statement the alternative prayer made in the plaint cannot be granted. In the said matter, the Supreme court has held as under:-
"8. As is evident from the impugned judgment, the High Court took into consideration the written statement filed by the Secretary, Wakf Board wherein it has been stated that the plaintiff-committee was very regular in submitting annual statement of accounts to the Wakf Board and in payment of annual contribution to the Board as per the provisions of the Act in support of the view that the plaintiff was actually acting as a mutawalli. This approach, in our 13 view, is not correct. The written statement filed by Wakf Board could not bind the defendant no. 2. Further any statement made in the said written statement could not be accepted against the defendant No. 2 unless it was established on the basis of evidence. The decision of Moideen Bibi Ammal, in our view, does not help the plaintiff. To apply the said decision, necessary facts ought to have been pleaded and established. In the case on hand, as already noticed above, neither was there pleading specifically in that plaint as to the plaintiff actually acting as a mutawalli to come within the scope of Section 3(f) of 1954 Wakf Act nor acceptable and sufficient evidence was placed on record to prove it as a fact. In the situation, the aforementioned decision has no application to the case of the plaintiff. When the plaintiff came forward specifically pleading that he was entitled to declaration of title and for recovery of possession of the plaint schedule property based on the agreement Ext. A-2 dated 13.2.1973, it could succeed only on the basis of validity of Ext. A-2 and the validity of transfer of mutawalliship in its favour. Since all the courts have concurrently found that mutawalliship could not be validly transferred in favour of the plaintiff-committee under Ext. A-2, the suit filed by the plaintiff ought to have been dismissed. The plaintiff could only succeed on the strength of its case and not on the weakness found in the case of the defendant, if any. The first appellate court having elaborately considered the evidence placed on record in the light of the pleadings of the parties had come to the right conclusion in dismissing the suit of the plaintiff. The High Court in second appeal, in our view, was not right in upsetting the findings of fact recorded by the first appellate court, that too without putting the parties on notice on the substantial question of law. Even otherwise, the finding of the 14 High Court on question 3 cannot be sustained when such a case did not arise for consideration in the absence of necessary pleading in the plaint in that regard. More so when the case of the plaintiff was based clearly on title said to have been derived under Ext. A-2."
30/ No oral or documentary evidence has been produced by appellants to show that any of the appellant or their father Krishnachandra or grand-father Maheshwar was appointed as Pujari of the temple. On the contrary the record reveals that after Jamanalal his heirs from the branch of Siddhanath were appointed as Pujari. If the appellants have dispute with heirs from the branch of Siddhanath, then they should have been impleaded them to decide the inter-se dispute between the two branches.
31/ Counsel for appellants has also placed reliance upon the order dated 27th October 1979 passed by the Commissioner. By the said order a committee was constituted for improving the management of the suit temple. Mere inclusion of the name of appellant no. 2 in that committee is not enough to hold that appellant no. 2 is Pujari of the temple.
32/ The record reveals that specific orders were passed from time to time by the competent authority appointing Pujari and Nemnuk was also paid to the Pujari so appointed but no such order exists in the name of appellant no. 2 nor there is any proof of payment of Nemnuk to him or any other appellant. 33/ In view of the above analysis, I am of the opinion that appellants have failed to prove their case setup in the plaint and they are also not entitled for alternate prayer made before this Court. Hence the trial court has not committed any error in 15 dismissing the suit.
34/ The appeal is found to be devoid of any merit which is accordingly dismissed.
C.C. as per rules.
(Prakash Shrivastava) Judge BDJ