JUDGMENT

Sanjay K. Agrawal, J. - The substantial questions of law involved, formulated and to be answered in this second appeal preferred by the defendants/appellants herein are as under:-

"1. Whether the judgment of the lower Appellate Court reversing the judgment of the trial Court is based on ignoring the evidence available on record and the same is on the basis of misreading of the evidence and documents available on record and as such perverse ?"

2. Whether the judgment and decree passed in Civil Suit No.7-A/1967 by the Court of Civil Judge Class-I, Kanker confers any right upon the plaintiff to act as a priest of the temple in question ?"

[For the sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court].

2. Original plaintiff-Kaniya, son of Gurda, filed a suit for permanent injunction stating inter-alia that in Civil Suit No.5-A/67 (Gurda v. Jarre and others) decree was granted by the trial Court on 14.1.69 holding that Gurda along with defendant No.1-Jarre and defendant No.-2-Dori therein is jointly Gayta and priest of two temples namely Shitla Mandir and Thakur Dai Mandir and they are entitled for joint possession of the suit land, but the defendants are interfering with their possession, as such, he is entitled for decree for permanent injunction.

3. The defendants set-up a plea that compromise decree was passed and the plaintiff is not Gayta and priest of the said temples and for the said purpose, Durg Sai has been appointed by the villagers, as such, the suit deserves to be dismissed.

4. The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 28.11.2002, dismissed the suit, but the first appellate Court allowed the appeal and granted decree in favour of the plaintiff. Questioning the judgment and decree passed by the first appellate Court, this second appeal under Section 100 of the CPC has been filed by the appellants/defendants, in which substantial questions of law have been formulated by this Court, which have been set-out in opening paragraph of this judgment. Now the plaintiff has died during pendency of this second appeal and his legal representatives have been brought on record.

5. Mr.Prakash Tiwari, learned counsel for the appellants/defendants, would submit that the first appellate Court is absolutely unjustified in granting decree in favour of the original plaintiff as there is overwhelming evidence on record to hold that the plaintiff is not entitled for permanent injunction as decree was granted in his favour and office of the priest is not heritable by virtue of the provisions contained in Section 6 (f) of the Transfer of Property Act, 1882 (hereinafter called as "the Act of 1882"), as such, the judgment and decree passed in Civil Suit No.5-A/67 does not confer any right and title to the plaintiff.

6. Mr.Vishnu Koshta, learned counsel for legal representative of respondent No.1/plaintiff, would submit that the first appellate Court is absolutely justified in granting decree in favour of the plaintiff as decree clearly directs the plaintiff's father-Gurda and defendant No.1-Jarre & defendant No.-2-Dori therein would jointly be Gayta and priest of the said temples and the plaintiff is having right to claim hereditary right of being appointed as a priest of the said temples, as such, the second appeal deserves to be dismissed.

7. I have heard learned counsel appearing for the parties and considered their rival submissions made hereinabove thoughtfully and also went through the records with utmost circumspection.

8. Instant suit from which this appeal has arisen was originally filed by Kaania (who died during pendency of this appeal) stating that his father Gurda was Gayta and priest of two temples namely, Shitla Mandir and Thakur Dai Mandir at Gram Aamakeda, Tahsil and Bhanupratappur and after his death, he is performing the pooja and other ceremonies at two temples, but in