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Madhya Pradesh High Court

Murti Shri Narsingh Mandir Kalaliya ... vs The State Of Madhya Pradesh on 14 February, 2020

Author: Vivek Rusia

Bench: Vivek Rusia

          THE HIGH COURT OF MADHYA PRADESH
                        S.A. No. 1237/2017
 Murti Shri Narsingh Mandir Kalaliya. V/s. State of M.P. & another.
                             -: 1 :-

Indore, dated : 14.02.2020
      Appellant/Plaintiff by Shri P.R. Bhatnagar, Advocate.
      Respondents/State by Shri Mayank Purohit, Govt. Advocate.

Heard on the question of admission as well as on I.A. No.8500/2018, an application for condonation of delay.

The appellant/plaintiff has filed the present second appeal being aggrieved by judgment and decree dated 30.4.2007 passed by Additional District Judge, Jaora, District Ratlam whereby the first appeal has been dismissed by affirming the judgment and decree dated 26.3.2007 passed by Civil Judge, Class-I, Jaora, District Ratlam in Civil Suit No.111-A/1996 by which the suit has been dismissed.

The appeal is barred by 3720 days, hence the appellant/plaintiff has filed the aforesaid application for condonation of delay.

The appellant is deity and pursuing the present appeal through 'Pujari' - Madhusudan Das.

Shri Bhatnagar, learned counsel appearing for the appellant, submits that after the dismissal of first appeal, the Pujari

- Madhusudan Das has shifted to Vrindavan at their parental Aashram and, therefore, he could not pursue the further remedy in the present appeal. When he came to attend the "Kumbh Mela" of 2017 held in Nasik Maharashtra, this fact was brought to his knowledge by his disciples that the first appeal had been dismissed and second appeal has not been filed so far, therefore, the delay in filing the second appeal is bona fide and in the THE HIGH COURT OF MADHYA PRADESH S.A. No. 1237/2017 Murti Shri Narsingh Mandir Kalaliya. V/s. State of M.P. & another.

interest of justice, same be condoned. He further submits that the appellant has a good prima facie case in the present second appeal and if the delay is not condoned, he would suffer irreparable loss. In support of his contention, he has placed reliance over the Single Bench judgment of this Court in the case of Murti Shri Ram Mandir V/s. State of M.P. : 2011 RN 256, in which, it has been held that the land recorded in the name of private temple as "Bhoomi Swami" and name of Pujari was also recorded, therefore, without there being any order of the Court, the Collector cannot be impleaded as Manager.

In order to examine the prima facie case for the purposes of condonation of delay, the facts of the case are also taken into consideration.

There is "Shri Narsingh Mandir", Kalaliya situated at Tehsil Jaora, District Ratlam and the agricultural land bearing Survey Nos. 242, 530, 729 and 815, total area 12.869 Hect. (hereinafter referred to as "the suit land" for short) is attached to it. Mahant Ramchandra Das filed the suit in the name of temple contending that he is performing the 'Pooja' and maintaining the agricultural land by way of succession under the "Guru - Shishya Parampara" going on since 100-125 years. His ancestors were given the suit land by the erstwhile ruler of Dewas in which they established temple. The temple is a private temple and in which the Government has no control over it. The plaintiff has alleged that revenue authorities under the garb of order Commissioner dated 28.5.1979 is trying to dispossess him and to auction the suit THE HIGH COURT OF MADHYA PRADESH S.A. No. 1237/2017 Murti Shri Narsingh Mandir Kalaliya. V/s. State of M.P. & another.

land. At the time of filing of the suit, Ramchandra Das was Pujari and without his knowledge, the name of Collector, Ratlam has been recorded as Manager. Hence, the cause of action arose for filing the present suit.

After appreciating the evidence came on record, learned trial Court has dismissed the suit vide judgment and decree dated 26.3.2007. Thereafter, the plaintiff preferred an appeal. Learned first appellate Court has considered as to whether the temple is a private temple or a public temple and came to the conclusion that it is a public temple in which the name of Collector has rightly been recorded as Manager. The plaintiff has filed only 'Khasra' record of the years 1991-92 to 1995-96 (Ex. P/2) in which the suit land is recorded in the name of "Shri Narsingh Mandir" through Collector. The plaintiff has failed to prove that the temple was constructed by the ancestors of the Pujari. Learned first appellate Court has held that it is a public temple and not a private temple. In case of public temple, the Collector can be the Manager and the Pujari is liable to be appointed by the Collector. No such appointment order of Pujari - Ramchandra Das has been produced. Pujari - Ramchandra Das has died during pendency of the suit. Even Mahant Madhusudan Das has also not filed any document in respect of appointment of Pujari. Therefore, vide judgment and decree dated 30.4.2007, learned first appellate Court has dismissed the appeal.

The appellant has filed the present second appeal only on the ground that the temple is a private temple and the name of THE HIGH COURT OF MADHYA PRADESH S.A. No. 1237/2017 Murti Shri Narsingh Mandir Kalaliya. V/s. State of M.P. & another.

Collector has wrongly been mutated as Manager in the revenue record.

Once the plaintiff has failed to establish that the land was given to the Pujari by the erstwhile ruler and the temple was constructed by his ancestors, the trial Court as well as first appellate Court have rightly held that it is a public temple and the land has rightly been recorded in the name of temple. The trial Court as well as first appellate Court both have held that the Pujari has filed the suit for his personal interest in the name of temple and in the name of temple, he wanted to enjoy the agricultural land of the temple. Once it has been held that it is a public temple and there is no appointment of Pujari by the Government, then the name of Collector has rightly been recorded. Similar issue came up before the apex Court in the case of Sri Ganpathi Dev Temple Trust V/s. Balakrishna Bhat : (2019) 9 SCC 495, in which, the apex Court has held that the suit property admittedly belongs to the appellant temple and the respondent and his archaks of the temple and it is their bounden duty to protect the property of the temple, but they cannot claim the property for their own gain. Para 11 and 12 of the aforesaid judgment are reproduced below :

"11. The primary issue which arises for adjudication in this matter is as regards the correctness of the revenue entries in the name of the respondents. As mentioned supra, the respondents had claimed to be in possession of the suit property as tenants since the 1970's. The Land Tribunal as well as the Assistant Commissioner after due enquiry have rejected their claims on two separate occasions. However, the respondents' contention is that since they have constructed a house on the suit property in the year 1994 and are residing therein, their names need to be entered in the revenue record. Such contention cannot be accepted in as much as they cannot, after failing in all their THE HIGH COURT OF MADHYA PRADESH S.A. No. 1237/2017 Murti Shri Narsingh Mandir Kalaliya. V/s. State of M.P. & another.

attempts to claim possession as a tenant, now claim to be in possession by way of construction of house and not as agriculturists. We are at a loss to understand as to on the basis and on what right the respondents can claim to be in possession of the suit property and as to how they could construct a house on a property on which they do not have any semblance of right.

12. The suit property admittedly belongs to the appellant temple. It is also not disputed that the Respondent No. 1(b) and his predecessors were the archaks of the temple. Needless to say, it is the bounden duty of the archak to protect the temple property, and they cannot usurp such property for their own gains. It is relevant in this regard to refer to the judgment of this Court in Bishwanath and Another v. Sri Thakur Radha Ballabhji and Others, (1967) 2 SCR 618,:

"9. Three legal concepts are well settled: (1) An idol of a Hindu temple is a juridical person; (2) when there is a Shebait, ordinarily no person other than the Shebait can represent the idol; and (3) worshippers of an idol are its beneficiaries, though only in a spiritual sense.

10. The question is can such a person represent the idol when the Shebait acts adversely to its interest and fails to take action to safeguard its interest. On principle we do not see any justification for denying such a right to the worshipper. An idol is in the position of a minor; when the person representing it leaves it in the lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest.

11... B. K. Mukherjea in his book 'The Hindu Law of Religious and Charitable Trust' 2nd Edn., summarizes the legal position by way of the following propositions, among others, at p. 249.

'(1) An idol is a juristic person in whom the title to the properties of the endowment vests. But it is only in an ideal sense that the idol is the owner. It has to act through human agency, and that agent is the Shebait, who is, in law, the person entitled to take proceedings on its behalf. The personality of the idol might therefore be said, to be merged in that of the Shebait.

(2) Where, however, the Shebait refuses to act for the idol or where the suit is to challenge the act of the Shebait himself as prejudicial to the interests of the idol then there must be some other agency which must have the right to act for the idol. The law accordingly recognises a right in persons interested in the endowment to take proceedings on behalf of the idol.' This view is justified by reason as well as by decisions." (emphasis supplied) Therefore, it is well settled that the deity in a Hindu temple is in deemed to be a minor, and the Shebait, archaka, etc. or the THE HIGH COURT OF MADHYA PRADESH S.A. No. 1237/2017 Murti Shri Narsingh Mandir Kalaliya. V/s. State of M.P. & another.

person functioning as manager/trustee of such temple acts as the guardian of the idol and conducts all transactions on its behalf. However, the Shebait or archaka is obligated to act solely for the idol's benefit. In Sri Thakur Radha Ballabhji (supra), this Court affirmed the lower courts' finding that a sale made by the manager of the deity to a third party, which was not for the necessity of the benefit of the idol, would not be binding on the deity, and worshippers or other parties who had been assisting in the management of the temple could apply to have such a sale set aside."

Therefore, in view of the above, the appellant has no prima facie case and no hope to succeed in this appeal. Hence, the delay of 3720 days is not liable to be condoned.

Even otherwise, the averments made in the application for condonation of delay are very vague in nature. No details have been given as to when Mahant Madhusudan Das was shifted to Vrindavan and the appellant has also not filed the order of appointment as Pujari or priest by the Government and the relationship with the earlier Pujari - Ramchandra Das and the ancestors. Therefore, no case for condonation of delay is made out. The appeal is hopelessly barred by limitation. Hence, such a huge delay is not liable to be condoned.

Accordingly, this appeal is dismissed as hopelessly time barred.

( VIVEK RUSIA ) JUDGE Alok/-

Date: 2020.02.18 17:16:16 +05'30'