The court held that applications for rejection of plaint and appointment of commission must be independently considered, with priority given to objections before proceeding with the trial.

JUDGMENT :

Mayank Kumar Jain, J.

Heard Sri Hari Shanker Jain, learned Senior Counsel through video conferencing, Sri Vishnu Shanker Jain assisted by Sri Shaurya Krishan, Advocate, Sri Prabhash Pandey, Pradeep Kumar Sharma, learned counsel for the plaintiffs. Ms. Reena N. Singh, learned counsel for the plaintiffs in Original Suit No. 7/2023.

2. Heard Sri Punit Kumar Gupta, learned counsel for defendant No. 1. Sri Nasiruzzaman and Sri Mahmood Pracha learned counsel for defendant No. 2. Sri Hare Ram, Advocate for defendant No. 3. Sri Kamalesh Narayan Panday and Sri Birendra Prasad Maurya, Advocates for defendant No. 4.

3. Heard learned counsel for the parties at length on the following issues :

(a) Whether an application for rejection of plaint should be decided prior to the application for appointment of commission.

(b) Application for appointment of commission under Order XXVI Rule 9 and 10 of the Code of Civil Procedure 1908 (Application No. 130C)

4. With reference to the facts of the case, it is stated by plaintiffs in their plaint that :

(a) Lord Shri Krishna is the incarnation of Lord Vishnu. He took birth in human form on the day of Ashtami in Krishna Paksh in the month of Bhadrapad about 5132 years ago in Dwaparyug in the prison of Mathura, the place known as 'Katra Keshav Dev', in Virishni Kingdom ruled by King Kans. Every inch of land of Katra Keshav Dev is sacred for the devotees of Lord Krishna. Lord Krishna is world wide worshipped by devotees and followers of Vedic Sanatan Dharma.

(b) In the year 1618, Raja Veer Singh Bundela of Orchha built/renovated a temple at the birth place of Lord Shri Krishna at Katra Keshav Dev, Mathura.

(c) During the year 1669-70, Aurangzeb, the Mughal Ruler, partially demolished the temple of Lord Krishna at Katra Keshav Dev and forcibly raised a construction which was named as 'Idgah Mosque'.

(d) After winning the battle of Goverdhan, Marathas became the ruler of entire area of Agra and Mathura. They removed the structure of the Mosque and restored/renovated the birth place temple of Lord Shri Krishna at Katra Keshav Dev. They also declared the land of Agra and Mathura as Nazool land.

(e) The East Indian Company under Lord lake conquered the area of Mathura and Agra by defeating Maratha ruler Scindia Army in the year 1803 and became the ruler of this area since then. The British Government continued to treat the land of Agra and Mathura as Nazool land.

(f) The British Government put the land measuring 13.37 acres of Katra Keshav Dev for auction sale through public auction in the year 1815. Raja Patnimal of Benaras purchased this land and became the owner and in possession over this property.

Number of cases were filed by Muslims questioning the auction sale, ownership and possession of Raja Patnimal but all were dismissed.

(g) In the settlement map of 1860, the compound was described as Katra Keshav Dev.

(h) In different Court proceedings, six decrees were passed in favour of Raja Narsingh Das, the descendant of Raja Patnimal in respect of property of Katra Keshav Dev.

(i) The spot was compared through a survey map in 1903, and it was numbered as 321. A temple of Ganga Ji was there.

(j) In 1911, the property of Raja Patnimal came under Court of ward and the compound of Katra Keshav Dev was administered by the Collector of Mathura.

(k) In a Civil Suit No. 76 of 1920 which was filed by the Muslims, it held that the disputed land did not belong to the Mosque and Hindu defendant were building a temple upon the site of previously existing temple. This suit was dismissed. Against this judgement and order, First Appeal No. 236 of 1921 was also dismissed.

(l) Thereafter in Civil Suit No. 517 of 1928 filed by Rai Kishan Das the heir of Raja Patnimal, a dispute was raised whether the plaintiff was the owner of the land and the material lying thereupon. The suit was decreed by the Trial Court and the judgment was affirmed by the First Appellate Court in favour of the plaintiff. The second appeal No. 691 of 1932 was d