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2011 jk fu 197 2011 RN 197
¼mPp U;k;ky;½ (HIGH COURT)
U;k- vkyksd vjk/ks
Alok Aradhe, J.
i`FohoYyHk rFkk vU; fo- pUnzfd‘kksj O;kl rFkk vU;
Prithvivallabh and others
Vs
Chandrakishore Vyas and others
f}rh; vihy dz- 319 lu~ 1992 ¼tcyiqj½( fu.khZr fnukad 28-1-2011A
Second Appeal No. 319 of 1992 (Jabalpur);
Decided on: 28.1.2011
¼2½ Hkw&jktLo lafgrk] 1959 ¼e-iz-½ & /kkjk 158¼1½ ¼x½ & Hkksiky jkT; ds HkwriwoZ uokc }kjk eafnj esa iwtk djus ds fy;s Hkwfe dh lun iznku dh xbZ & eafnj rFkk Hkwfe yksd U;k; dh laifRr ugha & ewy vuqnku /kkjh Hkwfe dk n[kydkj gS & ,slk n[kydkj lafgrk ds izkjaHk ij fof/k ds izorZu ls Hkwfe Lokeh gks x;kA , vkb vkj 2003 ,l lh 649] 2006 ¼1½ ts ,y ts 52 ¼mPpre U;k-½ , vkb vkj 2005 ,l lh 446] , vkb vkj 2006 ,l lh 861] , vkb vkj 2006 ckEcs 50] , vkb vkj 2001 enzkl 151 rFkk 2004 jk fu 22 fufnZ"VA ¼iSjk 8½
¼3½ yksd U;kl vf/kfu;e] 1951 ¼e-iz-½ & /kkjk 4 & Hkksiky jkT; ds HkwriwoZ uokc }kjk eafnj esa iwtk djus ds fy, Hkwfe dh lun iznku dh xbZ & eafnj rFkk yxh gqbZ Hkwfe U;kl dh laifRr ugha & vuqnku /kkjh ‘kk‘or O;kns‘k ds fy, flfoy okn & /kkjk 4 ds v/khu vkosnu fd, tkus dk funs‘k ugha fn;k tk ldrkA
vfHkfu/kkZfjr % tc iz‘uxr eafnj blds vfrfjDr yxh gqbZ Hkwfe U;kl dh laifRr ugha gS] blfy;s fupys U;k;ky;ksa us oknhx.k dks e-iz- yksd U;kl vf/kfu;e dh /kkjk 4 ds v/khu vkosnu djus dk funs‘k nsus esa =qfV dh gSA ¼iSjk 9½
¼4½ flfoy izfdz;k lafgrk] 1908 & /kkjk 11 & dk ykxw gksuk & fook|d u rks mBk;k x;k vkSj u gh fofuf‘pr fd;k & mica/k vkdf"kZr ugha gksrsA
oknh us flfoy vihy dz- 4 ,@1986 esa ikfjr fMdzh dks dsoy bl vk/kkj ij vk{ksfir fd;k fd fopkj.k U;k;ky; us oknh dks e-iz- yksd U;kl vf/kfu;e] 1951 dh /kkjk 4 ds v/khu vkosnu djus dk funs‘k tkjh djrs gq, fof/k dh =qfV dh gSA vihy laf{kIr bl vk/kkj ij [kkfjt dh xbZ fd eafnj esa iwtk djus dk iz‘u iw.kZr% rF; dk fu"d"kZ gS tks f}rh; vihy esa vk{ksi djus ds fy, [kqyk ugha gSA bl izdkj] vihy [kkfjt dh xbZA
vfHkfu/kkZfjr % bl vihy esa varoZfyr fook|d mi;qZDr f}rh; vihy esa u rks mBk, x, vkSj u gh vkns‘k fnukad 23-6-1993 }kjk fofuf‘pr fd, x,A fof/k esa ;g lqLFkkfir gS fd ,d fook|d ij fu.kZ; dsoy rHkh iwoZ U;k; ls :i esa izofrZr gksxk ;fn ogh mBk;k x;k gS rFkk fofuf‘pr fd;k x;k gSA vkns‘k fnukad 23-6-1993 ds ifj‘khyu ls] ;g Li"V gS fd bl vihy esa varoZfyr iz‘u f}rh; vihy dz- 567@1992 ds fofuf‘p;u ds le; u rks mBk, x, vkSj u fofuf‘pr fd, x,A blfy,] bl vihy esa vkns‘k fnukad 23-6-1993 iwoZ U;k; dk izHkko ugha j[krkA , vkb vkj 2000 ,l lh 2301 vuqlfjrA ¼iSjk 11½
(1) Land Revenue Act, 1932 (Bhopal State) -- S. 2 (15) -- Sanad of land granted by ex Nawab of Bhopal State for performing worship in temple -- temple and land not belonging to public trust -- original grant holder is occupant of land -- such occupant became Bhumiswami by operation of law on commencement of M.P Land Revenue Code. 1959. [Para 8
(2) Land Revenue Code, 1959 (M.P.) -- S. 158 (1) (c) -- Sanad of land granted by ex Nasab of Bhopal State for performing worship in temple -- temple and land not belonging to public trust -- original grant holder is occupant of land -- such occupant became Bhumiswami by operation of law on commencement of Code. AIR 2003 SC 649, 2006 (1) JLJ 52 (SC), AIR 2005 SC 446, AIR 2006 SC 861, AIR 2006 Bom. 50, AIR 2001 Madras 151 and 2004 RN 22 referred to. [Para 8
(3) Public Trusts Act, 1951 (M.P.) -- S. 4 -- Sanad of land granted by ex Nawab of Bhopal State for performing worship in temple -- temple and adjoining land does not belong to trust -- civil suit for permanent injunction by grant holder -- direction to make application under section 4 cannot he given.
Held: Since, the temple in question as well as the adjoining land does not belong to the trust, therefore, the Courts below committed an error in directing the plaintiffs to make an application under section 4 of the M.P. Public Trusts Act, 1951. [Para 9
(4) Civil P.C., 1908 -- S. 11 -- applicability of -- issue neither raised nor decided -- provisions not attracted.
The plaintiff had only challenged the decree passed in civil Appeal No. 4A/1986 on the ground that the trial Court erred in law in issuing a direction to the plaintiff to move an application under section 4 of M.P. Public Trusts Act, 1951. The appeal was dismissed summarily on the ground that the question of performing the Pooja in the temple is purely a finding of fact which is not open to challenge in the second appeal. Thus, the appeal was dismissed.
Held: The issue which were involved in the instant appeal were neither raised nor decided in the aforesaid second appeal vide order dated 23.6.1993. It is well settled in law that decision on an issue would operate as res judicata only if the same is raised and decided. From perusal of the order dated 23.6.1993, it is apparent that the question involved in the instant appeal was neither raised nor decided while deciding the second appeal No. 567/1992. Therefore, the order dated 23.6.1993 does not have the effect of res judicata in the instant appeal. AIR 2000 SC 2301 followed. [Para 11
1. This appeal has been preferred by the plaintiffs which arises out of suit for permanent injunction. This Court vide order dated 23.6.1993 had formulated the following substantial questions of law:-
"(1) Whether the grant/sanad (Ex. P/1) conferred exclusive title in favour of Niti Vallabh together with exclusive right of worship?
(2) Whether the plaintiffs became Bhumiswami of the property in dispute after coming into force of M.P. Land Revenue Code, 1959?
(3) Whether the findings that the property in dispute is a trust property is not based on any pleadings or evidence on record?
(4) Whether the Courts below acted within their jurisdiction to direct the plaintiffs to make an application under section 4 of the M.P. Public Trusts Act?
(5) Whether the prior agreement of worship created any right in the property in dispute in favour of the defendants/respondents and against the plaintiffs?"
2. Facts giving rise to filing of the appeal are that on land admeasuring 2.29 acres a Ganesh Temple is situate in city of Sehore. In respect of the land on which the temple is situate and the adjoining lands, erstwhile Nawab had granted a Sanad (Exhibit-P1) dated 5.8.1945 in favour of the original plaintiff so that he can perform pooja in the temple and can maintain himself as well as manage the affairs of the temple from the income of the adjoining lands. Pursuant to the aforesaid grant, name of original plaintiff was entered in the revenue records as 'Maufidar'. However, defendants started interfering with the possession of the plaintiffs. Accordingly, in the suit relief of permanent injunction was sought.
3. Defendant No. 1 (b) i.e. daughter of Gopal Das admitted the claim of the plaintiff. However, defendants No.1 (a) & defendants No.2 contested the claim of the plaintiffs. In the written statement filed by them it was, inter alia, pleaded that one Chhoteram was pujari of temple in question which was built 300-400 years ago. After his death, one Hemraj and Krishnan used to perform pooja in the temple. Hemraj had no son, therefore, during his lifetime he handed over the management of the temple to Kanhaiyalal and original defendant No.1 (Gopal Prasad) alternatively for one year each. Hemraj executed a registered gift deed in favour of original defendant No.1 by which management of the temple and possession of the adjoining land was handed over to defendant No.1. Thereafter, Kanhaiyalal and Gopal Prasad performed pooja every alternate year. Kanhaiyalal as well as Gopal Prasad had no son. Gopal Prasad, therefore, adopted defendant No.2, namely, his daughter's son vide adoption deed dated 13.9.1968. The original plaintiff and defendant No.2 are entitled to perform Pooja every alternate year.
4. The trial Court vide judgment and decree dated 16.1.1986 decreed the suit of the plaintiffs. It was held that in view of Exhibit-P-1 i.e. the 'Sanad' the plaintiff alone has the authority to manage the affairs of the temple and to manage the adjoining lands. Original plaintiff had handed over the work of performing pooja to defendant No.1 on account of his illness. Thus, no right accrued in his favour. The land belongs to the temple and the temple is a public trust. The trial Court further directed the plaintiffs to file an application under section 4 of the M.P. Public Trusts Act for getting the Trust registered as Public trust. Accordingly, the suit was decreed.
5. Being aggrieved by the judgment and decree of the trial Court the plaintiffs as well as defendants preferred appeals, which were registered as Civil Appeal No. 4-A/86 and 3-A/86 respectively. The aforesaid appeals were decided by the appellate Court by a common judgment dated 13.7.1992. It was held that admittedly Nawab of Bhopal had issued a 'Sanad' (Ex. P-I) in favour of original plaintiff. Since 1945 the original plaintiff's name was recorded in the revenue records. On the basis of Ex. D-1 i.e. registered 'Hibanama' dated 14.11.1911 and D-2, it was held that prior to year 1911, the aff
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