Ravindra Ojha vs Jaswant Singh Choudhary

Nisha Gupta, J.—This second appeal under Section 100 CPC has been filed against the judgment and decree dated 18.7.2014 passed by Additional District Judge No. 2, Kota in Civil Regular Appeal No. 70/2010 confirming the judgment and decree dated 2.9.2010 passed by Civil Judge (Junior Division) South, Kota in Civil Regular Suit No. 150/2004.

The short facts of the case are that a suit for mandatory and permanent injunction was filed by the plaintiff with the contention that there is a temple known as Goreshwar Mahadev which is ancient property. The temple was established by the ex-ruler of Kota and Pujari was appointed by the ex-ruler. There is a land surrounding the temple. The forefathers of the appellant used to worship in the temple from last 100 years as Pujari. Earlier Ganesh Lalji was appointed as Pujari, thereafter Nathulalji and thereafter Durgalalji and present appellant was also serving as Pujari with Durgalaji but on 8.4.2004, he has been dispossessed from the temple of the land, hence suit has been filed. The contention of the respondent was that the temple is the private property of the defendant. The plaintiff never remained Pujari there. The property was his Zagir and after resumption of Zagir the Additional Collector, Zagir Kota vide order dated 9.5.97 has declared the property to be the personal property of the defendant. The court below has dismissed the suit and appeal has also been dismissed, hence this second appeal.

The contention of the appellant is that he has a right to worship in the property and his right cannot be denied as his forefathers were worshiping in the temple and defendant wants to grab the property. His further contention is that on the day of the suit, he was in possession of the property and he wants to establish only his right to worship. His name has been recommended to be appointed as Pujari by the Devesthan Department, hence both the courts below have erred in dismissing the suit.

Heard the learned counsel for the parties and perused the judgments and decree under appeal.

Initially, the suit has been filed by the appellant plaintiff with the contention that he is Pujari in the temple and defendant is trying to grab the land of the temple, hence injunction has been prayed that he be allowed to worship in the property and also his right to use the land should not be interfered. Meaning thereby that the present appellant is not in possession of the suit property. The contention of the appellant himself was that on 8.4.2004, he has been evicted from the property whereas the court below has held that vide order of Additional Collector, Jagir dated 9.5.97, the property has been declared the private property of defendant, Sohan Lal Sringi, is the Pujari. Electricity bills are in the name of defendants and there is no documentary evidence to show that the plaintiff was ever in possession of the property. The contention of the appellant is that it is only a suit simplicitor for enforcement of his right to Pujari and suit is maintainable and reliance has been placed on deceased Ranglal through his LRs and ors. v. Laxmilal and ors., 2007 WLC (Raj.) UC 611 where the facts were totally different. The suit was not filed as regards the property of the temple but only hereditary rights of Pujari has been claimed whereas in the present suit, the suit has been filed for restraining the defendant to encroach upon the land and for peaceful enjoyment of land by the appellant which pre-supposes that the plaintiff appellant is in possession of the property where the concurrent findings of the court below is that the appellant plaintiff is not in possession of the suit property and suit is not maintainable.

The other contention of the appellant is that he has submitted Ex. 1 to 15 documents which have not been considered by the court below and reliance has been placed on M.B. Ramesh (D) by L.Rs. Vs. K.M. Veeraje Urs (D) by L.Rs. and Others, in which it has been held that when a construction of document is erroneous it raises question of law and his further contention is that when the public documents has been submitted on record which are admitted in evidence, Court cannot come to the conclusion that they are legally inadmissible and reliance has been placed on Naladhar Mahapatra and Another Vs. Seva Dibya and Others, . There cannot be any dispute as regards the legal proposition but here in the present case, the facts are peculiar that no document has been submitted along with the plaint as provided under O.7 R. 14 CPC and in the cross-examination of the defendant, documents 1 to 15 has been submitted. On 1.4.2008, an application has been submitted by the plaintiff for production of the documents which was dismissed and High Court has ordered that if original documents be submitted, the plaintiff be allowed to exhibit them and both the courts below have held that no original document has been submitted before the court below, hence the law laid down in M.B. Ramesh (dead) (supra) and Naladhar Mahapatra (supra) has no relevance in the present matter as the order of the court has not been complied with and furthermore, the documents have not been proved before the court below.

For the sake of arguments, it can be held that the documents are on record still there is no evidence to show that the appellant is in settled possession of the property or worshiping in the property in his hereditary rights.

Per contra, the defendant has clearly placed on record the facts that Sohan Lal Sringhi is Pujari in the property and Ghasilal and Balu Ram are the tenants on behalf of the defendant and judgment has also been passed by the Additional Collector, Zagir in favour of respondent.

Much stress has been placed on the fact that name of the appellant has been recommended by the Devesthan Department to be pujari of the temple but the fact goes against the present claim of the appellant as recommendation means that the appellant is not Pujari at present and it demolishes the claim of the appellant.

Looking to the concurrent findings of fact by the courts below and no perversity has been shown, no interference is needed. It is settled proposition of law that second appeal could be entertained only on substantial question of law and since no substantial question of law could be pointed out by the counsel for the appellants, the appeal is liable to be dismissed.

The appeal is accordingly dismissed.