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IN THE HIGH COURT OF MADHYA PRADESH
Anand Pathak, J.
Ramkrishna Sharma v. State of M.P. & Others
First Appeal No. 253 of 2001 (Gwalior): against the judgment and decree dated 30.11.2001 passed by XII Additional District Judge, Gwalior in Civil Suit No. 30-A/2001; Decided on 22.4.2022.
¼1½ flfoy çfØ;k lafgrk] 1908 & vkŒ 41 fuŒ 27 & vfrfjDr lk{; & xzkg~;rk & vkosnu d¢ lkFk iqjkus y¨d nLrkost çLrqr & vfHkokd~ fd lk{; d¢ le; og tkudkjh vkSj dCts esa ugha Fks rFkk ekeys d¢ ewy rd tkrs gSa & bl U;k;ky; ds fu"d"kZ bu nLrkostksa ij vk/kkfjr ugha & ekeyk 44 o"k¨Z ls yafcr & bl ç;¨tu d¢ fy, ekeys dk çfrçs"k.k fu"Qy ç;¨x g¨xkA , vkb vkj 1963 ,l lh 1526] ¼2008½ 8 ,l lh lh 511 rFkk ¼2010½ 2 ,l lh lh 316 vuqlfjrA ¼iSjk 22 ,oa 66½
¼2½ flfoy çfØ;k lafgrk] 1908 & vkŒ 8 fuŒ 5 & oknh dk O;fDrxr eafnj & okni= d¢ vfÒopu¨a ,oa eafnj d¢ Lokeh ds :i esa oknh dh fLFkfr dk fofufnZ"V çR;k[;ku ugha & vihykFkÊ ,oa mld¢ iwoZt¨a }kjk fufoZ/u iwtk fd, tkus d¢ lacaèk esa çfroknh dh Lohdkj¨fDr & fdlh fofufnZ"V vfÒopu d¢ vÒko esa] blls vihykFkÊ dk i{kdFku l'kDr gksrk gSA 2009 ¼2½ ts ,y ts 126] ¼mPpre U;k;ky;½ ¼2016½ 1 ,l lh lh 207 rFkk ¼1999½ 8 ,l lh lh 396 vuqlfjrA ¼iSjk 34 ls 36½
¼3½ eafnj & çÑfr & vihykFkÊ d¢ iwoZt¨a }kjk Lo;a dh Òwfe ij O;fDrxr eafnj dk fuekZ.k fd;k x;k & uxj fuxe d¨ laifRrdj lanRr & ljdkjh eafnj¨a dh lwph esa lfEefyr ugha & ekQh v©dkQ foÒkx d¢ deZpkjh dh lk{; ls lkfcr & tulkèkkj.k d¢ fy, [kqyk gS & blls jkT; d¢ LokfeRo ds eafnj dh çÑfr ugha gks tkrhA ¼iSjk 37 ,oa 38½
¼4½ eafnj & O;fDrxr eafnj & dqN le; useuqd@ikfjJfed dk çnku & çHkko & ikfjJfed çnku djus d¢ fo"k; esa d¨Ã lun ugha & oknh d¢ iwoZt¨a }kjk eafnj dk fuekZ.k rFkk nsorkv¨a dh çfr"Bk & ifji= fnukad 12-11-1964 }kjk ;Fkkisf{kr] ljdkjh eafnj g¨us dh d¨Ã lwpuk jkT; d¨ ugha nh xà & ;fn ÒDr n'kZu ds fy, vkrs gSa ;k ljdkj us d¨Ã Òwfe eafnj ls layXu dh gS rks mlls eafnj dh çÑfr ljdkjh eafnj dh ugha gks tkrhA 1971 ts ,y ts 935 ¼mPpre U;k;ky;½] 1965 ts ,y ts 418] , vkb vkj 1986 ,l lh 2139] , vkb vkj 1963 ,l lh 510] , vkb vkj 1971 ,l lh 2057] , vkb vkj 1981 ,l lh 798] , vkb vkj 1954 jktŒ 193] , vkb vkj 1951 iVuk 340] , vkb vkj 1973 dyŒ 397 rFkk , vkb vkj 1998 cacbZ 131 fufnZ"VA ¼iSjk 39 ls 43½
¼5½ eafnj & iqtkjh@lsok;r dh gSfl;r & LFkkoj laifRr d¢ leku gS & ;g oa'kkuqxr ,oa mÙkjkfèkdkj ;¨X; in gS & oknh d¢ iwoZt lsok;r Fks & ijarq mls foØ; dk vfèkdkj ugha gS & v©j u mls caèkd fd;k vFkok iV~Vs ij fn;k tk ldrk gS & nsoLFkkuh laifRr ls lsok;r dk lacaèk U;kllaifRr d¢ U;kfl;¨a dk ughaA , vkb vkj 1978 ,l lh 1393 rFkk , vkb vkj 1979 ,l lh 1682 fufnZ"VA ¼iSjk 45 ls 51½
¼6½ lk{; vfèkfu;e] 1872 & èkkjk 110 & ifjlhek vfèkfu;e] 1963 & èkkjk 27 rFkk vuqPNsn 65 & O;fDrxr eafnj & gd dh mièkkj.kk & oknh d¢ iwoZt 100 o”kZ ls vfèkd le; ls iqtkjh@lsok;r d¢ :i esa eafnj dk çcaèk ,oa iwtk fufoZ?u djrs jgs gSa & fofèkiw.kZ dCtk & yacs le; ds fofèkiw.kZ dCts ls gd dh mièkkj.kk gksrh gS & jkT;] ,sls çfroknh d¢ :i esa ftldk d¨Ã gd ugha Fkk] mlds dCts esa ?kqliSB ugha dj ldrkA , vkb vkj 1990 ,l lh 2220] , vkb vkj 2003 ,l lh 1805] ¼2013½ 9 ,l lh lh 319 rFkk ¼2020½ 1 ,l lh lh 1 vuqlfjrA ¼iSjk 51 ls 56½
¼7½ dok;n eqvkQhnkjku tqTcs vkjkth ok udnh] laor 1991 ¼Xokfy;j jkT;½ & èkkjk 3¼1½] 4¼4½ rFkk 12 & O;fDrxr eafnj & nsorkv¨a dh iwtk vkSj lsok djus d¢ fy, oknh d¢ iwoZt¨a d¨ useuqd@ikfjJfed dk çnku & ;g /kkj.kk ugha dh tk ldrh fd ekQh nsoLFkkuh ;k useuqd çnku djus dk vk'k; eafnj d¨ ljdkjh eafnj dgus dk FkkA ¼iSjk 57] 58] 60 ,oa 61½
¼8½ dok;n eqvkQhnkjku tqTcs vkjkth ok udnh] laor 1991 ¼Xokfy;j jkT;½ & èkkjk 6] 8] 16d rFkk 30 & eqvkQhnkj dk mRrjkfèkdkjh@okfjl & vfèkdkj & eqvkQhnkj dh e`R;q d¢ i'pkr~ mldk mÙkjkfèkdkjh vuqnku çkIr djsxkA ¼iSjk 59 ls 63½
¼9½ y¨dU;kl vfèkfu;e] 1951 ¼eŒçŒ½ & èkkjk 4 & O;fDrxr eafnj & y¨dU;kl dk l`tu & eafnj d¨ 70&80 o"kZ iwoZ d¨Ã jde useuqd d¢ :i esa çnku djuk & jkT; d¨ eafnj ij nkok djus dk d¨Ã vfèkdkj] gd ;k çkfèkdkj ugha nsrk & eafnjoknh d¢ iwoZt¨a d¢ LokfeRo dk gS v©j O;fDrxr laifRr gS & jkT; ljdkj d¨ y¨dU;kl xfBr djus dk d¨Ã vfèkdkj ughaA ¼iSjk 63½
¼10½ eafnj & gd Ĩ"k.kk ,oa LFkk;h O;kns'k d¢ fy, okn & oknh d¢ iwoZt¨a }kjk O;fDrxr eafnj dk fuekZ.k & mud¢ }kjk nsorkv¨a dh çfr"Bk & ljdkjh eafnj¨a dh lwph esa ljdkjh eafnj d¢ :i esa lfEefyr ugha & lkjs igyw nLrkosth v©j e©f[kd lk{; }kjk lkfcr & okni= d¢ vfÒopu¨a rFkk oknh dh gSfl;r dk fyf[kr dFku esa fofufnZ"V çR;k[;ku ugha & okn fMØh fd;k x;k & oknh dks eafnj d¢ j[kj[kko dk funs'k & ;g Hkh funsf'kr fd d¨Ã O;kikfjd xfrfofèk@foØ;@caèkd vuqKkr ugha & loZlk/kkj.k eafnj d¢ le; d¢ n©jku iwtk dj ld¢axs & vihy eatwjA ¼iSjk 37 ls 39] 43] 45 ls 51] 57 ls 61 ,oa 67 ls 69½
(1) Civil P.C. 1908 -- O. 41 R. 27 -- additional evidence -- admissibility -- old public documents filed along with application --pleaded that they were not in knowledge and possession at time of evidence and go to root of matter -- findings of by this Court are not based upon these documents -- matter pending for 44 years -- remanding matter for this purpose would be futile exercise. AIR 1963 SC 1526, (2008) 8 SCC 511 and (2010) 2 SCC 316 followed. [Paras 22 & 66]
(2) Civil P.C. 1908 -- O. 8 R. 5 -- private temple of plaintiff -- averments of plaint and status of plaintiff as owner of temple not specifically denied -- admission of defendants regarding performing of pooja uninterruptedly by appellant and his ancestors -- in absence of any specific pleading, this strengthens case of appellant. 2009 (2) JLJ 126 (SC), (2016) 1 SCC 207 and (1999) 8 SCC 396 followed. [Paras 34 to 36]
(3) Temple -- character -- private temple constructed by ancestors of appellant on own land -- property tax paid to Municipal Corporation -- not included in list of Government temples -- proved by evidence of employee of Muafi Aukaf Department -- open for public at large -- does not assume character of State-owned temple. [Paras 37 & 38]
(4) Temple -- private temple -- grant of nemnuk for some time -- effect -- no covenant about grant of nemnuk -- temple constructed and deities anointed by ancestors of plaintiff -- no information about being Government temple given to State as required by circular dated 12.11.1964 -- if some devotees are coming for darshan or Government has attached some land to temple, it does not make character of temple as Government temple. 1971 JLJ 935 (SC), 1965 JLJ 418, AIR 1986 SC 2139, AIR 1963 SC 510, AIR 1971 SC 2057, AIR 1981 SC 798, AIR 1954 Raj. 193, AIR 1951 Patna 340, AIR 1973 Cal. 397 and AIR 1998 Bom. 131 referred to. [Paras 39 to 43]
(5) Temple -- status of pujari/shebait -- is like immovable property -- it is a hereditary and heritable office -- ancestors of plaintiff were Shebait -- but he has no right to sell -- nor can it be mortgaged or leased -- Shebait relationship with debutter property is not of trustees of trust property. AIR 1978 SC 1393 and AIR 1979 SC 1682 referred to. [Paras 45 to 51]
(6) Evidence Act, 1872 -- S. 110 -- Limitation Act, 1963 -- S. 27 and Art. 65 -- private temple -- presumption of title -- ancestors of plaintiff managing temple and offering pooja as pujari/shebaitfor more than 100 years uninterruptedly -- in lawful possession -- long lawful possession is presumption of title -- State as defendant which had no title, cannot invade his possession. AIR 1990 SC 2220, AIR 2003 SC 1805, (2013) 9 SCC 319 and (2020) 1 SCC 1 followed. [Paras 51 to 56]
(7) Qawaid Muafidaran Jujbe Araji Va Nagdi, Samvat 1991 (Gwalior State) -- Ss. 3(1), 4(4) and 12 -- private temple -- grant of nemnuk to ancestors of plaintiff for pooja and service to deities -- cannot be assumed that by way of grant of Muafi Devsthani or nemnuk, intention was to call temple a Government temple. [Paras 57, 58, 60 & 61]
(8) Qawaid Muafidaran Jujbe Araji Va Nagdi, Samvat 1991 (Gwalior State) -- Ss. 6, 8, 16A and 30 -- successor/heir of Muafidar -- right -- after death of Muafidar, his successor would receive grant. [Paras 59 to 63]
(9) Public Trusts Act, 1951 (M.P.) -- S. 4 -- private temple --creating public trust -- grant of some amount as nemnuk 70-80 years back to temple -- does not give any right, title or authority to State to lay claim over temple -- temple is of ownership of ancestors of plaintiff and is private property -- State Government has no right to constitute any public trust. [Para 63]
(10) Temple -- civil suit for declaration of title and permanent injunction -- private temple constructed by ancestors of plaintiff -- deities anointed by them -- not included as Government temple in list of Government temples -- all aspects proved by documentary and oral evidence -- averments of plaint and status of plaintiff not specifically denied in written statement -- suit decreed -- plaintiff directed to maintain temple -- also directed that no commercial/sale/mortgage is permitted -- public shall offer pooja during temple time -- appeal allowed. [Paras 37 to 39, 43, 45 to 51, 57 to 61 & 67 to 69]
JUDGMENT
1. Instant appeal under section 96 of the Code of Civil Procedure, 1908 has been preferred against the judgment and decree dated 30.11.2001 passed by the XII Additional District Judge, Gwalior in Civil Suit No.30-A/2001 whereby the suit preferred by the appellant/plaintiff has been dismissed.
2. Facts in brief for adjudication are that suit for declaration and permanent injunction was filed by the appellant as plaintiff against the respondents/defendants with the pleadings that property by way of house situate at house No.39/720 Jiwaji Chowk, Bada Lashkar District Gwalior is his ancestral property in which deities Shri Hanuman Ji, Shri Ram Janki Ji and Shri Mahadev Ji were installed and anointed by his ancestors. House was constructed around 200 years back and thereafter these deities were established by his ancestors while bringing the statues from Rajasthan. This temple is their personal temple and since inception they are taking care of the temple and whole management of the temple is being undertaken by the plaintiff. Prior to him, his ancestors were managing the temple by their own funds and time to time constructions of different nature were raised by the plaintiff and his ancestors. All festivals were being organized by the plaintiff and earlier to him their ancestors.
3. As pleaded, plaintiff's ancestor Mangilal was managing the temple (and the property) as owner of the property and thereafter his son Keshavdev took the responsibility. After his death his brother Ramswaroop, who was father of plaintiff was involved in maintenance of temple and offering Pooja to the deities.
4. In 1974 at the instance of some disgruntled people (tenants evicted by plaintiff) enquiry was conducted vide case No.2/74-75-B/121 in the Court of Additional Tahsildar, Gwalior and after enquiry Tahsildar vide order dated 5.12.1974 found that temple is not Government temple but it is personal and private property. No nemnuk (cash grant) was given by the Government and matter was dropped.
5. As per the appellant/plaintiff, some tenants who were earlier inducted by the plaintiff's ancestor in part of the premises, suit for eviction was filed as owner of the suit property and same was decreed by the trial Court vide judgment dated 9.3.1978 by IV Additional District Judge, Gwalior and the same was affirmed by this Court in First Appeal No.18/1978 vide judgment and decree dated 19.4.1989 (Ex-P/20).
6. It is pleaded that the tenants who were earlier inducted by the plaintiff's ancestor in part of the premises made some complaints and on the basis of those complaints, Additional Tahsildar again issued notice on 2.4.1978 and notification was issued on 25.4.1978 for appointment of Pujari. Therefore, with said cause of action, suit has been filed and it was pleaded that respondents cannot harass the plaintiff and sought relief for declaration of right and permanent injunction.
7. Written statement was filed by the State as defendants and admitted the fact about existence of temple called Baade Ke Hanuman ¼ckM+s ds guqeku½ but denied ownership of premises of plaintiff. Facts pleaded in para 2 to 5 have been denied not in specific term but general denial was made and so far as pleadings in para 7 of the plaint is concerned defendants pleaded ignorance about the same and according to them judgment earlier passed between two different parties is not binding over them. According to defendants, nemnuk was regularly given to the plaintiff and his ancestors, therefore, temple was public temple.
8. Special objections were raised by the defendants from para 19 to 26 in which it has been mainly pleaded that earlier one Devkinandan was appointed as Pujari on behalf of Gwalior State (native ruler) and he received nemnuk from the concerned Muafi Department and after his death his son Pannalal being ineligible to perform prayer, Sombhatt was appointed as Pujari in 1879 and thereafter after his renunciation, his disciple Mangilal was appointed as Pujari and thereafter
The determination of a temple's status as public or private hinges on the right of public access and the evidence of dedication to public worship, not merely on the presence of public worship.
The character of a temple as public or private is determined by its use for public worship and community management, not solely by registration status.
A pujari's role does not confer ownership rights over temple property, which vests in the deity and is managed by the State.
The distinction between a private and a public endowment is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof.
Temple poramboke land classification affirms temple ownership rights; government cannot claim adverse possession over temple land.
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