Rajasthan High Court - Jaipur
Prem Shankar And Others vs State Of Raj And Others on 2 August, 2022
Author: Sudesh Bansal
Bench: Sudesh Bansal
HIGH COURT OF JUDICATURE FOR RAJASTHAN
BENCH AT JAIPUR
S.B. Civil Second Appeal No.260/2010
1. Premshankar, S/o Late Shri Nandlal, R/o Mandola Ward,
Baran, District Baran.
2. Bhawanishankar, S/o Late Shri Nandlal, R/o Mandola
Ward, Baran, District Baran.
3. Dhanraj, S/o Late Shri Nandlal, R/o Mandola Ward Baran,
District Baran.
----Appellants/plaintiffs
Versus
1. State Of Rajasthan Through District Collector, Baran.
2. Secretary, State Of Rajasthan. Devasthan Department
Secretariat Jaipur.
3. Tehsildar State Of Rajasthan Tehsil Atru, District Baran.
Respondents/defendants
4. Bhanwani Shankar S/o Gopal, R/o Mandola Ward, Baran, District Baran.
----Respondent/plaintiff
For Appellant(s) : Mr. Saddik Ahmed with
Mr. Sanjay Singhal
For Respondent(s) : Mr. Akshay Sharma
HON'BLE MR. JUSTICE SUDESH BANSAL
Judgment
02/08/2022
1. Appellants-plaintiffs have preferred this second appeal under Section 100 of the Code of Civil Procedure assailing the judgment and decree dated 16.03.2010 passed in Civil First Appeal No.1/2010 by the Court of Additional District Judge, Chhabra, District Baran affirming the judgment and decree dated 02.02.2010 passed in two consolidated suits bearing Nos.5/1994 and 6/1994 by the Court of Civil Judge (Junior Division), First (Downloaded on 25/12/2022 at 04:09:04 AM) (2 of 9) [CSA-260/2010] Class, Atru, District Baran whereby and whereunder the civil suits for declaration and permanent injunction filed by appellants- plaintiffs was dismissed on merits.
2. Heard counsel for appellants at length and perused the record.
3. The relevant facts of the case are that appellant-plaintiffs instituted a civil suit claiming that though the lands in question are recorded in the name of idol temple Shri Kalyanrai Ji Virajmaan, Baran, they are pujari of the temple and individual tenant of lands in question and having their cultivation and possession over the same. Plaintiffs averred that since the Government of Rajasthan has issued an order on 31.05.1993 and thereby inclined to take the possession of lands in question from them, therefore, it was prayed that the order dated 31.05.1993 be declared as null and void and respondents-defendants be restrained by way of permanent injunction not to dispossess the appellant-plaintiffs from lands in question without following the process of law.
4. Respondents-defendants submitted written statement and contended that lands in question are recorded in the revenue record in the name of temple Shri Kalyanrai Ji Virajmaan, Baran. Lands do not belong to plaintiffs individually and they are only the pujari of temple. The order dated 31.05.1993 issued by Devasthan Department is within parameters of law to protect and maintain the land of deity/idol of temple Shri Kalyanrai Ji Virajmaan, Baran.
5. Since two separate suits No.5/1994 & 6/1994 were instituted by plaintiffs which involve the identical and common issues therefore, with consent of parties, the trial court consolidated both suits.
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6. As per rival pleadings of parties, common issues were framed and whereupon both parties adduced their respective evidence oral and documentary.
7. The learned trial court, vide judgment dated 02.02.2010, decided issue No.1 with findings that as per the revenue record produced in evidence by plaintiffs, it is clear that lands in question is not recorded in the individual name of plaintiffs but the same is land recorded and reserved for the temple of Shri Kalyanrai Ji Virajmaan, Baran. The trial court observed that none of documents from Exhibit 1 to 12 produced by plaintiffs showing that at any point of time this land was ever recorded in the individual name of plaintiffs. The trial court observed that it is admitted case of plaintiffs that they are pujari of the temple Shri Kalyanrai Ji Virajmaan, Baran therefore, the trial court held that plaintiffs cannot claim any individual tenancy rights in the lands belonging to temple Shri Kalyanrai Ji Virajmaan, Baran. In relation to the order dated 31.05.1993, it was observed that since the authentic copy of order has not been tendered in evidence and has not been exhibited, therefore, the same cannot be declared as null and void on merits. Finally, the trial court dismissed the suit on merits.
8. Appellant-plaintiffs challenge the judgment and decree dated 02.02.2010 by way of filing a joint and common first appeal. The first appellate court re-considered the entire evidence and re- heard the matter again. Before the first appellate court, plaintiffs produced certified copy of order dated 31.05.1993 along with application under Order XLI Rule 27 CPC. This application was produced at the time of final hearing of first appeal, however, the first appellate court considered the certified copy of impugned (Downloaded on 25/12/2022 at 04:09:04 AM) (4 of 9) [CSA-260/2010] order dated 31.05.1993 on merits though the application under Order XLI Rule 27 CPC could not observe to be disposed of.
9. The first appellate court, in its elaborate and well reasoned judgment, has categorically observed that the documents Exhibit- 1, 3, 5, 6, 10 & 12 produced by plaintiffs go to show that the agricultural land in question is recorded in the revenue record in the name of minor idol/temple of Shri Kalyanrai Ji Virajmaan, Baran and the name of plaintiffs and their predecessor, Nandlal, Gopal sons of Ram Kishan by caste Brahman are indicated as pujari of the temple.
10. In view of such documentary evidence, the claim of plaintiffs alleging their individual khatedari rights and alleging themselves to be the tenant of the land in question was found meritless and without any basis. The appellate court also observed that though plaintiffs contended to deposit the lagaan of agricultural lands in question but even no receipts of lagaan have been produced.
11. As far as the order dated 31.05.1993 is concerned, the appellate court considered that notification and the gazette has already been published that the temple is a government temple and therefore, in order to maintain the government temple, the order dated 31.05.1993 has been issued by the Secretary, State of Rajasthan, Devasthan Department to manage the affairs of temple. The appellate court also observed that plaintiffs in their cross-examination have admitted that after passing the order dated 31.05.1993, subsequent order to take possession of lands in question from plaintiffs has also been passed on 25.07.1994. Thus, after appreciation of entire evidence including the certified copy of order dated 31.05.1993, the appellate court recorded a fact finding that it is not proved by any iota of evidence that (Downloaded on 25/12/2022 at 04:09:04 AM) (5 of 9) [CSA-260/2010] plaintiffs were having any individual khatedari rights over the lands in question prior to commencement of The Rajasthan Tenancy Act w.e.f. 15.10.1955 and therefore, their case claiming khatedari tenant over the lands in question is devoid of merits and has rightly been dismissed by the trial court. With such fact findings, the first appeal was dismissed vide judgment dated 16.03.2010.
12. Learned counsel for appellants has vehemently argued that appellants are in actual and physical possession over lands in question and findings recorded by courts below are perverse.
13. Heard.
14. Considered.
15. It is apparent from the record that though appellant-plaintiffs claimed their individual and personal khatedari rights over the lands in question alleging that they are in possession over the same prior to 15.10.1955, it means commencement of The Rajasthan Tenancy Act, however, no evidence has been produced to substantiate such contentions even documents of revenue record produced by appellants itself shows that lands in question were/are recorded in the name of temple Shri Kalyanrai Ji Virajmaan, Baran and the name of appellants-plaintiffs were indicated as pujari. It is trite law and settled proposition that a pujari of temple, cannot claim his individual khatedari rights over the lands recorded in the name of temple. The idol is always treated as minor and its land is to be protected in the same manner as recorded in the revenue record. That apart, it has not been disputed that in gazette notification, the temple Shri Kalyanrai Ji Virajmaan, Baran has been recorded as a government temple and therefore, the Department of Devasthan is well within (Downloaded on 25/12/2022 at 04:09:04 AM) (6 of 9) [CSA-260/2010] its jurisdiction to issue the order dated 31.05.1993 to maintain the management and regular affairs of the temple. Appellant- plaintiffs, at the most can claim appointment of pujari if they are rendering seva puja in the temple since ancestors. No individual right can be allowed to be claimed by appellants-plaintiffs over the lands in question which as per record belongs to the temple.
16. In the present case, temple has not been made party and appellant-plaintiffs have come in their individual capacity, therefore, both courts below are well within their jurisdiction to dismiss the suit as per the evidence available on record.
17. As far as the argument put-forth by appellants that application under Order XLI Rule 27 CPC was not decided, the same is of no consequence for the reason that the first appellate court has considered the certified copy of order dated 31.05.1993 on merits produced by appellants. Merely for the technical reasons that the application was produced at the time of hearing the first appeal, if the appellate court could not record specific order disposing of the application under Order XLI Rule 27 CPC, the same does not render the impugned judgment suffer from any jurisdictional error or perverse moreso, when the document produced by appellants has been considered on merits. No prejudice in any way has occurred to the appellant by not passing an order to dispose of his application under Order XLI Rule 27, once the additional document, the certified copy of the order dated 31.05.1993, has been considered by the first appellate court on merits.
18. The concurrent findings recorded by both courts below that appellants-plaintiffs are having no actual and physical possession in their individual capacity, is based on due appreciation of (Downloaded on 25/12/2022 at 04:09:04 AM) (7 of 9) [CSA-260/2010] evidence and no perversity has been pointed out in such fact findings. Other findings of courts below are also based on appreciation/re-appreciation of entire evidence on record and such fact findings has not been found to be based on misreading/non- reading of evidence or on the basis of any inadmissible piece of evidence or otherwise perverse or suffer from any jurisdictional error.
19. The Hon'ble Supreme Court in umpteen number of cases has discussed the scope of High Court for interference in concurrent findings of the trial Court and first Appellate Court under Section 100 of CPC.
20. The Supreme Court recently in case of Thulasidhara Vs. Narayanappa [(2019) 6 SCC 409] has held as under:-
"The jurisdiction of the High Court to entertain second appeal under Section 100 CPC after the 1976 Amendment, is confined only with the second appeal involving a substantial question of law. The existence of "a substantial question of law" is a sine qua non for the exercise of the jurisdiction under Section 100 CPC. The question framed by the High Court in this case cannot be said to be a substantial question of law at all.
In the present case the trial Court as well as the first appellate court, gave cogent reasons on appreciation of evidence on record, including the partition deed and sale deeds and thereafter held that the plaintiff is not entitled to the declaration that he has become the owner of the land. While interfering with the judgment and decree passed by both the courts below, the High Court has again reappreciated the entire evidence on record, which in exercise of powers under Section 100 CPC, not permissible. Under the circumstances, the High Court has committed a grave/manifest error in quashing and setting aside the findings recorded by both the courts below, which were on appreciation of evidence on record. The High Court has exceeded in its jurisdiction while exercising the powers under Section 100 CPC. Even otherwise, on merits also, the impugned judgment and order passed (Downloaded on 25/12/2022 at 04:09:04 AM) (8 of 9) [CSA-260/2010] by the High Court allowing the appeal and consequently decreeing the suit, is not sustainable."
21. In another judgment of Gurnam Singh Vs. Lehna Singh [(2019) 7 SCC 641] has held as under:-
"Before parting with the present judgment, we remind the High Courts that the jurisdiction of the High Court, in an appeal under Section 100 CPC, is strictly confined to the case involving substantial question of law and while deciding the second appeal under Section 100 CPC, it is not permissible for the High Court to reappreciate the evidence on record and interfere with the findings recorded by the Courts below and/or the First Appellate Court and if the First Appellate Court has exercised its discretion in a judicial manner, its decision cannot be recorded as suffering from an error either of law or of procedure requiring interference in Second Appeal. We have noticed and even as repeatedly observed by this Court and even in the case of Narayanan Rajendran v. Lekshmy Sarojini, (2009) 5 SCC 264, despite the catena of decisions of this Court and even the mandate under Section 100 CPC, the High Courts under Section 100 CPC are disturbing the concurrent findings of facts and/or even the findings recorded by the First Appellate Court, either without formulating the substantial question of law or on framing erroneous substantial question of law."
22. The Hon'ble Supreme Court in C.Doddanarayana Reddy Vs. C.Jayarama Reddy [(2020) 4 SCC 659], while discussing the jurisdiction of the High Court to interfere with the finding of fact under Section 100 CPC has held that though the High Court could have taken different view acting as the trial Court but once, two Courts below have returned finding which is not based upon any misreading of material documents, nor against any provision of law neither could it be said that any judge acting judicially and reasonably could have reach such a findings, then, the Court cannot be said to have erred. Relying upon the previous judgment the Supreme Court has held as under:-
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(9 of 9) [CSA-260/2010] "Recently in another judgment reported as State of Rajasthan v. Shiv Dayal [(2019) 8 SCC 637], it was held that a concurrent finding of the fact is binding, unless it is pointed out that it was recorded dehors the pleadings or it was based on no evidence or based on misreading of the material on records and documents. The Court held as under:
"16. When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded de hors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose, J. as His Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors., AIR 1943 Nagpur 117 Para 43)."
23. The upshot of discussion is that the instant second appeal does not involve any substantial question of law and is not liable to succeed and the same deserves to be dismissed and hereby dismissed. There is no order as to costs.
24. All pending application(s), if any, also stand disposed of.
25. Record of both Courts below be sent back forthwith.
(SUDESH BANSAL),J SAURABH/96 (Downloaded on 25/12/2022 at 04:09:04 AM) Powered by TCPDF (www.tcpdf.org)