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2009 Supreme(UK) 169
2009 (2) UAD 14
UTTARAKHAND HIGH COURT
Hon’ble Mr. Justice Sudhanshu Dhulia
Second Appeal No. 1333 of 2001
SRI BHAIRAB DUTT & ORS. – Defendants/Appellants
Versus
SRI BALA DUTT BHATT – Plaintiff/Respondent
Decided on : 15.04.2009
For the Appellants :Mr. Rakesh Thapliyal, Advocate
For the Respondent:Mr. Rajendra Dobhal, Advocate
Headnote:(A) Specific Relief Act, 1963, Secs. 38 & 39 — Long possession — Injunction against true owner — Injunction with regard to right of "Pooja" —A settled principle, governing the law of injunction is that, if the suit property is in possession of a person for a sufficiently long time, then injunction should not disturb that possession — However, a person in possession can resist the entire world, but not the true owner, even if the true owner is not in actual possession of the property —"Pooja" is intangible right, it is a property right and therefore, an injunction can be claimed in terms of Sec. 38 and 39, Specific Relief Act and same principle, as applicable to a property, would govern the right to perform "Pooja". (Paras 10, 11)
(B) Civil Procedure Code, 1908, Secs. 100, 101 & 103 — Perversity — Broad features pertaining to Sections 101, 102 and 103 of the Code of Civil Procedure — In exceptional cases, where the findings appeared to be totally perverse and where such a substantial question of law has been framed by the High Court, the interference would be justified.
(Paras 13 to 16)
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¼izLrj 13 ls 16½
This second appeal of the defendants arises out of the judgment and decree dated 31.7.2001 passed by the District Judge, Almora, confirming the judgment of the trial Court in Suit No. 47 of 1995.
2. The matter relates to a temple and the rights of the plaintiff & the defendants to perform “Puja” in that temple. At Jageshwar in District Almora, there is a temple known as “Jageshwar Temple Dham”. It is in fact a cluster or a group of temples where one of the temples is that of “Pushti Devi”. The father of the plaintiff was a “Panda” in this temple and used to perform “Puja” and according to the plaintiffs this right to perform Puja has subsequently developed on him. According to the plaintiff, the defendant No. 1 and 2 are also Priest/Panda of temple and they are not allowing the plaintiff to perform “Puja”. Hence, the cause of action for filing the suit where the plaintiff sought a decree of permanent injunction against the defendants. The suit of the plaintiff was decreed by the trial Court and the appeal of the defendants was dismissed by the lower appellate Court. In short the contention of the plaintiff/respondent has been upheld by both the courts below.
3. At this stage the pedigree chart must be given in order to have a proper perspective of who’s who in this case. The pedigree chart is as follows :
4. Sri Bharab Dutt Bhatt, Sri Kaushalanand Bhatt and Sri Dinesh are the defendants/appellants, whereas Sri Bala Dutt Bhatt is the plaintiff. Evidently Sri Bala Dutt Bhatt had filed the suit against his nephews.
5. This second appeal of the defendants/appellants was admitted on the following substantial question of law, framed by the court, at the time of admission. They are:
“A. Whether, permanent injunction can be granted to a person who is not at all in the possession over the property in question?
B. Whether, the injunction can be granted on the ground that the right of worship is the right of property?
C. Whether a permanent injunction can be granted in favour of a person on the ground of right of worship in a temple having national importance looking after by the Archaeological Survey of India declared the monument of national importance, in favour of a person against whom criminal proceedings are pending in the courts below?”
6. However, with agreement of both the parties out of the aforesaid substantial questions of law, this court only heard the parties on the first two substantial questions of law. Apart from this during the course of arguments, and after the perusal of records, the court was satisfied that another substantial question of law emerges in the case and that is the following :
“Whether the findings given by the courts below suffers from any perversity?”
7. Therefore, the above substantial question of law will also be treated to have been framed by this Court, and the parties having heard of this substantial question of law as well.
8. The case of the plaintiff is that his father namely Krishnanand Bhatt was the Priest/Panda in the temple, who was having four sons; namely Baladutt (plaintiff), Mahadev Bhatt, Tara Dutt Bhatt and Shiv Dutt. Shiv Dutt died issueless. Mahadev Bhatt was having two sons namely Bhairab Dutt Bhatt/defendant No. 1 and Kastubanand Bhatt/defendant No. 2. Tara Dutt Bhatt was having three sons namely Ganesh Chandra Bhatt, Mahesh Chandra Bhatt and Dinesh Cjhandra Bhatt. After the death of Mr. Krishnanand Bhatt, the right to worship was inherited to the plaintiff and his three brothers. After the death of Mahadev Bhatt and Tara Dutt Bhatt, the plaintiff was performing “Puja” in the temple and he became the sole priest.
9. The case of the defendants is that the plaintiff had left Jageshwar to seek a job elsewhere, and has recently returned to Jageshwar and has now started claiming his right as “Panda” in the temple. The father of the defendants was eldest surviving son of Krishnanand Bhatt and being eldest surviving son, he was Panda and after his death, the right to worship has
