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2012 jk fu 84o 2012 RN 84
¼mPp U;k;ky;½ (HIGH COURT)
U;k- ,-ds- JhokLro
A.K. Shrivastava, J.
xtsUnzjko rFkk vU; fo- ewfrZ Jh x.kifr th egkjkt rFkk vU;
Gajendrarao and others v. Murti Shri Ganpati Ji Maharaj and others
f}rh; vihy Ø- 367 lu~ 1999 ¼Xokfy;j½( fu.khZr fnukad 1-10-2011A
Second Appeal No. 367 of 1999 (Gwalior); Decided on 1.10.2011.
2- flfoy izfdz;k lafgrk] 1908 & vk- 22] fu- 4] /kkjk 96 rFkk 100 & vihy rFkk izR;ksRrj vihy & pykus ;ksX; gksuk & ,d fof/kd izfrfuf/k ,d izR;ksRrj vihy esa iwoZ ls vfHkys[k ij & vU; fof/kd izfrfuf/k;ksa dks izFke vihy] f}rh; vihy rFkk ,d vU; izR;ksRrj vihy esa i{kdkj ugha cuk;k x;k & vihy rFkk ,d vU; izR;ksRrj vihy mi‘kfer ugha gksrh & izFke vihy pykus ;ksX; Fkh rFkk f}rh; vihy Hkh pykus ;ksX; gSA , vkb vkj 1979 ,l lh 1393 vuqlfjrA , vkb vkj 1967 ,l lh 49 fufnZ"VA , vkb vkj 1971 ,l lh 240 izHksfnrA ¼iSjk 24
3- dok;n eqvkQhnkjku tqTcs vkjkth o udnh] laor~] 1991 ¼Xokfy;j jkT;½ & /kkjk 6 ¼1½] 12] 16 rFkk 33 & edku rFkk eafnj ds LokfeRo dk fookn & oknh rFkk izfroknhx.k ds iwoZt }kjk edku ds ,d dejs esa nsork izfr"Bkfir & eqvkQhnkj ds T;s"B iq= dks iwtk ds fy, useuwd eatwj fd;k x;k & useuwd iznku djus ds fy, mlds uke ekQh jftLVj esa ukekarj.k &gd vo/kkj.k ds fy, dkuwu gS vkSj eqvkQhnkjku dk bfrgkl ugha & oknh dsoy udnh iznku ds vk/kkj ij edku rFkk eafnj dk ,d ek= rFkk vuU; Lokeh gksus dk nkok ugha dj ldrk & og dsoy useuwd ¼udnh iznku½ dk gdnkj gSA ¼iSjk 25 ls 28
4- dok;n eqvkQhnkjku tqTcs vkjkth o udnh] laor~] 1991 ¼Xokfy;j jkT;½ & /kkjk 4] 5] 6 13 rFkk 16 & oknh rFkk izfroknhx.k ds iwoZt }kjk edku ds ,d dejs esa nsork izfr"Bkfir & iwtk dk vf/kdkj & T;s"B iq= ds i{k esa useuwd iznku fd;k x;k & eqvkQhnkjku ds bfrgkl esa mldk uke eafnj ds Lokeh ds :i esa n‘kkZ;k x;k & eqvkQhknkjku dk bfrgkl dkuwu ugha gS & oknh rFkk izfroknhx.k ds iwoZt nsork dh iwtk djrs jgs & dok;n eqvkQhnkjku ds varxZr iwtk dk vf/kdkj nk;;ksX; vf/kdkj gS & oknh ds NksVs HkkbZ nsork dh iwtk rFkk lsok djus dk vf/kdkj j[krs gSaA 2009 jk fu 208 ¼mPp U;k-½ fufnZ"VA ¼iSjk 29 rFkk 30
(1) CIVIL PROCEDURE CODE., 1908 -- Ss. 96, 100 and O. 22 R. 4 -- appeal and cross-appeals -- maintainability of -- one L.R. already on record in one cross appeal -- other L.R. not impleaded in first appeal, second appeal and another cross-appeal -- appeal and another cross appeal not abated -- first appeal was maintainable and second appeal is also maintainable. AIR 1979 SC 1393 followed. AIR 1967 SC 49 referred to. AIR 1971 SC 240 distinguished. [Para 24
(2) CIVIL PROCEDURE CODE., 1908 -- O. 22 R. 4, Ss. 96 and 100 -- appeal and cross-appeals -- maintainability of -- one L.R. already on record in one cross-appeal -- other L.R. not inpleaded in first appeal, second appeal and another cross-appeal -- appeal and another cross appeal not abated -- first appeal was maintainable and second appeal is also maintainable. AIR 1979 SC 1393 followed. AIR 1967 SC 49 referred to. AIR 1971 SC 240 distinguished. [Para 24
(3) Qawaid Muafidaran Jujve Arazi Wa Nakdi, Samvat, 1991 (Gwalior State) -- Ss. 6 (1), 12, 16 and 33 -- dispute regarding ownership of house and temple - deity installed in one room of house by ancestors of plaintiff and defendants -- nemnook for worship allowed to eldest son of Muafidar -- his name was mutated in Muafi Register for grant of nemnook -- relavant provision for determination of title is Statute and not history of Muafidaran -- merely on basis of cash grant plaintiff cannot claim sole and exclusive owner of house and temple -- he is entitled only for nemnook (cash grant). [Paras 25 to 28
(4) Qawaid Muafidaran Jujve Arazi Wa Nakdi, Samvat, 1991 (Gwalior State) -- Ss. 4, 5, 6, 13 and 16 -- deity installed in one room of house by ancestors of plaintiff and defendants -- right of worship -- nemnook granted in favour of eldest son -- his name shown as owner of temple in history of Muafidaran -- history of Muafidaran is not a Statute -- ancestors of plaintiff and defendants offering Puja to deity -- under Qawaid Muafidaran right of Puja is heritable right -- younger brothers of plaintiff have right to Puja and Seva to deity. 2009 RN 208 (HC) referred to.
[Paras 29 and 30
1. This second appeal has been filed by the L.Rs. of first defendant Narayan Rao assailing the judgment and decree passed by the two Courts below.
2. More than 43 years ago on 17.7.1968, a suit for declaration of ownership of the house in question, the description whereof is mentioned in the plaint and which is the subject matter of the suit, was filed by deity Shri Ganpati Ji Maharaj installed in Shri Ganpati Mandir Nathu Shinde, Darjee Oli Gwalior through Ganpat Rao and a declaratory decree has been sought to declare plaintiff as the sole owner of the suit property with a consequential relief that the possession of the said property be also delivered to plaintiff from the defendants and further a decree of injunction be passed against them that they should not interfer in the possession of plaintiff. The present suit has been filed by deity Shri Ganpati Ji Maharaj through one Ganpat Rao who is now dead and whose L.Rs. are respondents 3 and 4 (i) to (vi). The suit was originally filed against two defendants, namely Narayan Rao and Ramchandra Rao. During the pendency of the suit first defendant Narayan Rao had died and his L.Rs. were brought on record of the Trial Court. During the pendency of this second appeal, second defendant Ramchandra Rao has also died and his L.Rs. have been brought on record.
3. Briefly stated the suit of the plaintiff is that near about in Samvat 1918 (corresponding year 1861) one Nathu Shinde, who was the predecessor of the parties, installed an idol of Shri Ganpati Ji Maharaj in his house, and thereafter prayed in the Huzoor Darbar of erstwhile Gwalior State to sanction the Nemnook (cash grant) in his favour and further requested to mutate his name in the Muafi register of Gwalior State. Thereafter, religious programmes were started in the said temple and on being invited by Nathu Shinde, public at large also started coming in the temple and also started to participate in the religious functions. The Seva and Puja of the temple was being performed by Nathu Shinde himself and his heirs. Said Nathu Shinde expired in Samvat 1940 (corresponding year 1883) and in his place, the names of his sons Ramrao and Krishnarao were mutated in the Muafi department of Gwalior State.
4. It is the further case of plaintiff that after the death of Ramrao in Samvat 1948 (corresponding year 1891) only the name of Krishnarao Shinde was continued in the Muafi department and name of Ramrao Shinde on account of his death was deleted. The said Krishnarao also died on 23.4.1921 and in place of his name, name of his adopted son Ganpat Rao (plaintiff) was mutated and because he was minor at that time, therefore, his name was mutated under the guardianship of Anand Rao Shinde and since then plaintiff is possessing the temple of Shri Ganjesh Ji Maharaj as owner and is also performing Puja etc. He is also looking after the management of the temple of Muafi department given to his ancestors and is also obtaining the Nemnook (cash grant). Since plaintiff is in service at Sheopur and is residing there, therefore, during the holidays, he used to come to look after the temple affairs. The defendants (Narayan Rao Ramchandra Rao) somewhere in the year 1960 focibly entered in the temple and started living there. Repeatedly it was insisted to them by Ganpati Rao to vacate the temple, but they did not agree and continued to possess the suit property. Ultimately, Ganpat Rao submitted a complaint before Commissioner Gwalior Division Muafi Section, on which the Commissioner directed Collector to evict the defendants and who directed Sub Divisional Officer to get the defendants evicted from the temple. Resultantly, on 13.9.1963 through police Station Madhoganj second defendant and the tenants inducted by him were evicted and thereafter the locks were inserted in the premises. Again thereafter on 29.3.1967 second defendant by breaking the lock, entered inside the temple (suit premises) and had taken over the possession of upper floor of the
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