Sri Ramachandra and Others vs Sri Shivaram and Others

V. Jagannathan, J.—Whether the archakas'' hereditary right which is in the nature of property, can be done away with by an order of termination by the trustees of Sri Vinayaka Dev Temple, Idagunji, Honnavara Taluk and further whether upon a declaration that the termination order is void, the archaka is entitled to the relief of injunction, are the two important questions among others that require an answer from this Court in this second appeal.

Briefly stated, the facts which have given rise to this second appeal are that, the plaintiffs in O.S. No. 10/01 prayed for a declaration that they are the hereditary archakas of Sri Vinayaka Dev Temple, Idagunji, and that the said right being in the nature of property carrying emoluments, the plaintiffs, in consonance with the said legal character, are entitled to officiate as the upadhivant priests and are also entitled to perform at the altar end in the temple, the Nitya-Naimithik poojas, conduct special poojas on special occasions, Abhisheka, Archana naivedya, Vrathas, Ganahoma etc., in line with their Upadhi rights and to act as purohits as well, for devotees in performing seva etc., fetching emoluments in the form of Tastik, half share in Phalavali, in whole of Padiakki, an anna of share in the worth of Panchakaiiaya offered, half coconut for the coconuts offered and Dashina etc.,

It was also the case of the plaintiffs, that the hereditary right which is in the nature of property carrying emoluments, having its origin in the ancient times ever since the consecration of Sri Vinayaka idol at the suit temple, the plaintiffs family have been performing the aforesaid duties of hereditary archakas and following the defendants issuing the order of termination dated 21.9.94 which order is illegal and void and contrary to the principles of natural justice, the plaintiffs also sought for consequential relief of injunction restraining the defendants and their agents, servants etc., from interfering with the plaintiffs rights in performing their duties as hereditary archakas.

It may not be out of place, to also mention at this juncture as to the origin of Sri Vinayaka Dev Temple, Idagunji and according to the plaintiffs, the deity had its origin in the mythological era and the idol was sculptured by the divine sculptor Vishwakarma and was installed at the suit site by a sage of Valakhilya order, with the assistance rendered by sage Narada, who according to the legend, was instrumental in securing the blessings of divine consorts Shiva and Parvathi for the installation of the deity and also the eternal presence of Ganapathi in the idol is also ensured by performing the poojas as per the Agama Shastras to ensure the divinity in the idol and according to the puranik sayings, Ganapathi assured his divine presence in the idol, on being offered panchakajjaya daily.

Adverting to the above origin, with regard to the idol of Ganapathi, the plaintiffs also contended that families of the plaintiffs have been performing the duties of Archakas/Upadhivantas of the deity and also as Purohits for the devotees by conducting Sevas, Vratas, Homes and other rituals and this state of affairs continued up to the last decade of the last century, when the plaintiff''s ancestors, also officiated and acted as Shebaits. After the advent of the Madras Endowment Act, the trustees were got appointed and one of the members of the families of the plaintiffs, also used to be appointed as one of the trustee on the Board of five, till about 1930 and there after wards the Bombay Public Trust Act, 1950 came into force and the temple at Idagunji became registered under the Bombay Public Trust Act, 1950.

It is also the case of the plaintiffs that the 1st Upadhi was being officiated by the two families of two separate gothras and the ancestors to whom the plaintiffs traced their hereditary archaks duties, were one Putta Bhatta and Lakshminarayana Bhatta and it is also the plaintiffs case, that the branch of the 1st plaintiff performs the pooja for a month followed by the branch of the 2nd plaintiff for a fortnight and by the 3rd plaintiff branch again for a fortnight and thus the system of rotation among the three plaintiffs families has been in vogue since ancient times, and being in consistence with the custom.

It was also the case of the plaintiffs that the defendants, who are the appellants before this Court, were the trustees appointed by the District Court under the Bombay Public Trust Act and as such, the plaintiffs were not appointed by any authority and much less the defendants. It was therefore contended by the plaintiffs that the defendants cannot allocate to themselves the power of removing a hereditary archaka having proprietary nature of right and the removal of such an archaka can only be after filing a suit and getting a decree. As such, the plaintiffs contended that their removal by the trustees on 21.9.94 cannot be upheld in law and the said termination is illegal and void. Consequent to the declaration sought to the effect that the said order of termination being illegal and void, the plaintiffs also sought for the relief of injunction.

The defendant No. 1 on the other hand contended in the written statement that as the subject matter of the suit pertains to Sri Vinayaka Dev Temple, Idagunji, which is a public trust registered under the provisions of the Bombay Public Trust Act 1950, the suit itself was not maintainable. Without making the Temple Trust as a party and the relief claimed by the plaintiffs also being hit by provisions of Section 50 of the Bombay Public Trust Act, the suit is not maintainable and another defence taken was that the plaintiffs had not obtained the permission of the Charity Commissioner as required u/s 51 of the Bombay Public Trust Act.

Apart from the aforesaid grounds taken with regard to maintainability of the suit, it was also contended by the 1st defendant that the plaintiffs had filed a suit earlier in O.S. No. 17/ 76 for injunction against the trustees and for accounts of the emoluments etc., and the said suit came to be dismissed for default and thereafter, following the application filed by the plaintiffs under Order 9 Rule 9 of C.P.C also being dismissed and later on the lower appellate court having restored the suit, the trustees have preferred M.EA. No. 11/89 before this Court and the said M.F.A was allowed and the plaintiffs were directed to pursue the application filed by them earlier under Order 9 Rule 9 of C.P.C. As the said application was closed by the trial court, the plaintiffs filed another Miscellaneous Case No. 6/89 for re-opening of the previous miscellaneous case and later on the said Miscellaneous Case No. 6/89 was also dismissed and against that, the plaintiffs have again approached the lower appellate court.

Therefore, it is the contention of the defendants that the present suit is hit by the provisions of Order 9 Rule 9 C.P.C and Section 11 of C.P.C on the ground of res judicata. The 1st defendant also denied the case of the plaintiffs with regard to the origin of the temple and so also the role played by the plaintiffs ancestors both as archakas on the spiritual side and as Shebaits on the temporal side. It is the contention of the 1st defendant that the plaintiffs were not well versed in Agama Shastras and the temple trust having framed a Niyamavali, the plaintiffs had to follow the said Niyamavali and as far as the emoluments are concerned, it was contended that the offerings were made to the deity and not to the archakas and the plaintiffs were duty bound to hand over to the trust the money and other things received from the devotees.

The 1st defendant also alleged in the written statement that the plaintiffs committed various acts of misconduct and misappropriated the money belonged to the trust and in order to ensure the dignity and sanctity of the temple and to maintain the tradition and custom of the temple in the interest of the public and devotees, the defendants had to resort to the termination of the plaintiffs services and as the defendants lost confidence in the plaintiffs, there was no other go than to issue the order of termination. It was also contended by the 1st defendant that relationship between the archakas and that of the trustees is that of master and servant, in as much as, the archakas were the servants and the trustees therefore had every power and authority to terminate the services of the archakas.

Defendants 2, 4, 5 and 6 also took up the stand that the plaintiffs have no hereditary rights to perform the pooja and the plaintiffs have not sought any declaratory relief within the period of limitation and hence the suit is liable to be dismissed on that ground itself.

As far as the third defendant is concerned, he admitted most of the plaint averments and revealed his ignorance about the Niyamavali and also took up the stand that the notice of termination was issued only by the 1st defendant, who called himself as the Managing Trustee, and there was no need for issuing such a notice. One other stand taken by the 3rd defendant was that there is no specific bye-laws, scheme or Court order for the administration of the trust. Therefore, it was contended by the 3rd defendant that he is no way responsible for the suit being brought up by the plaintiffs.

Based on the stand taken by the parties in essence, as aforesaid, the trial court framed as many as 32 issues and having regard to the argument addressed before this Court by the learned Counsel for the parties and also the fact that some of the issues were tried initially as preliminary issues and the finding thereon gave rise to a Civil Revision Petition before this Court and as against the order passed in the said Civil Revision Petition, the defendants took up the matter to the Apex Court, in my view, these developments which took place during the pendency of the suit, therefore requires mentioning of all the issues that were framed by the trial court, for proper appreciation of the contentions urged by the learned Counsel for the parties.

The issues and additional issue framed by the trial court were the following:

Whether the plaintiffs prove that they are the hereditary archakas of Sri Vinayaka Dev Temple, Idagunji and not the appointed one ?

Do they further prove that they have hereditary archakaship with emoluments attached to it ?

Whether the defendants prove that the property where the suit temple is situated originally belonged to the family of Sabhahits; and whether the defendants prove that originally suit temple was private temple of Sabhahit family ?

Whether the defendants prove that plaintiff No. 1 - Shivaram Narayan Bhat, brother of plaintiff No. 3 had applied for trusteeship of the suit temple ?

Whether the plaintiffs prove that originally they belonged to Idagunji village ?

Whether the plaintiffs prove that their ancestors were also working as managers and custodians of the temple and its properties ?

Whether the plaintiffs prove that the families of the plaintiffs were acting in dual capacity as archakas and Manager as Shebahits or deemed Shebahits till the end of last decade of last century ?

Whether the plaintiffs prove that Upadhi Vrithi of the suit temple belongs to the family of plaintiffs'' only?

Whether the plaintiffs prove that they have a customary right to officiate archakas under Vrithi Upadhi ?

Whether the plaintiffs prove that they have a customary right to act as Purohitas ?

Whether the plaintiffs prove that they are entitled to half share in Phalavali and the whole of Padiakki and one Anna in a rupee worth of Panchakajjayya ?

Whether the plaintiffs prove the genealogy given in the schedule of the plaint ?

Whether the plaintiffs prove that the family of plaintiffs 1, 2 and 3 were performing pooja, viniyogas etc., turn by turn as alleged in para.5 of the plaint and whether the same has been continued ?

Whether the said arrangement of performing pooja turn by turn by them is not binding on the defendants and whether it is the internal arrangement of the plaintiffs ?

Whether the plaintiffs prove that the family settlement and judgments referred to in para.9 of the plaint are concerning the defendants and they are binding on the defendants ?

Whether the defendants prove that the "Niyamavalies" were prepared lawfully in August 1975 and have been implemented legally and they are binding on the plaintiffs?

Whether the defendants prove that the plaintiffs are estopped from contending that the Niyamavalies are not binding on them on account of acquiescence ?

Whether the plaintiffs prove that the notices issued are illegal and not binding on them ?

Whether the plaintiffs prove that the defendants have or had no authority to terminate them from archakaships and the alleged termination of their archakaships is illegal and not binding on them ?

Whether the defendants prove that the plaintiffs were extracting huge amounts from the devotees in the form of Dakshina, Shashwat pooja and were committing sinful acts and to the detriment to the temple, trust and the devotees ?

Whether the defendants prove that from 21.9.94 till the date of passing of order on I.A.I by the Court, the plaintiffs were not working as archakas and that the archakas appointed by the Trust were performing poojas, viniyogas etc., during the period ?

Whether the defendants prove that the plaintiffs have not been performing any acts in the temple as archakas since 9.4.95 and the archakas appointed by the Trust have been performing poojas and viniyogas in the temple since 9.4.1996 ?

Whether the defendants prove that the plaintiffs have other vocations and occupations and that plaintiffs own fertile, wet and garden lands ?

Whether the defendants prove that the suit is hit by the provisions of Section 51 of B.P.T. Act, and whether the suit of the plaintiffs is bad in law for want of permission from the Charity Commissioner concerned ?

Whether the defendants prove that the suit is hit by the provisions of Section 50, 79 and 80 of B.P.T. Act and is not maintainable ?

Whether the defendants prove that the suit is bad in law for non-joinder of necessary parties as contended in para.3 of the written statement ?

Whether the defendants prove that the suit of the plaintiffs is hit by the provisions of the principles of res judicata ?

Whether there is no cause of action for the suit ?

Whether the defendants prove that the suit of the plaintiffs is bad in law for non-joinder of Charity Commissioner, concerned, and as party ?

Whether the defendants prove that the suit of the plaintiffs is barred under the provisions of Section 9 of CPC and this Court has no jurisdiction to try the suit?

Whether the plaintiffs are entitled to the reliefs sought?

What order or decree ?

Addl. Issue No. 1:

Whether the declaratory relief sought for by the plaintiffs is barred by limitation as contended by the defendants ?

After the above issues were framed, an application was filed by the defendants requesting the trial court to try issue Nos. 24, 25, 26, 29 and 30 as preliminary issues. Accordingly, the learned judge of the trial court heard the parties on these issues and recorded his findings in the negative. Against the said findings of the trial court, the defendants preferred C.R.P. No. 4708/2001 before this Court and the said petition came to be dismissed on 28.1.2004.

This Court, while disposing of the aforesaid C.R.P., concurred with the view taken by the trial court on the preliminary issues and held that, as the plaintiffs had sought for adjudication of their claim by virtue of the continuation of their hereditary right in performing the pooja, the civil court has got jurisdiction to entertain the suit and accordingly directed the trial court to dispose of the suit on merits within six months.

Aggrieved by the dismissal of the C.R.R, the defendants moved the Apex Court in Civil Appeal No. 5641/2004. The main question that was considered by the Apex Court was as to whether the suit filed by the plaintiffs is one which pertains to administration of a public trust or is it a suit to establish a private right to archakship or worship in a temple by the persons claiming to have such a right. The said questions arose in the context of the bar created by Section 50 of the Bombay Public Trusts Act, 1950.

The Hon''ble Supreme Court, after hearing the parties, ultimately dismissed the Civil Appeal and thereby confirmed the judgment of this Court in C.R.P.N0.4708/2001. The Apex Court also directed the trial court to dispose of the suit on priority basis as per the directions of the High Court.

It is thereafter that the trial court recorded the evidence of the parties and, after considering the material placed before it in the light of the arguments advanced by the respective sides, the learned trial judge answered issue Nos. 1, 2, 4 to 10, 12 to 14, 16 to 19 and 21 to 23 in the affirmative. Issue Nos. 11 and 31 were answered partly in the affirmative. Negative findings were recorded as regards issue Nos. 15, 20, 27 and 28 as well as additional issue No. 1. No finding was recorded on issue No. 3.

The effect of the aforesaid findings on all the issues by the trial court as well as the findings on the preliminary issues having been confirmed ultimately by the Apex Court, resulted in the suit of the plaintiffs being decreed, by holding that the plaintiffs are declared to be the hereditary archakas of Shri Vinayakadeva Temple, Idagunji, and are entitled to perform the poojas, sevas and viniyogas as per turn basis, as per the custom and further it declared that the plaintiffs are entitled to emoluments and that they are bound by the Pooja Niyamavali prepared by the trustees and the order of termination dated 21.9.1994 was declared to be illegal, void and contrary to the principles of natural justice and not binding on the plaintiffs.

The trial court, at the same time, held that the temple trust is at liberty to terminate the hereditary archakship of the plaintiffs only for good reasons with the intervention of the competent court of law. The suit of the plaintiffs for consequential relief of permanent injunction was dismissed but, at the same time, the trial court also restrained the defendants from interfering with the rights of the plaintiffs, without due process of law.

The defendants, aggrieved by the relief of declaration granted by the trial court, preferred regular appeal before the lower appellate court in R.A. No. 66/2006 and the plaintiffs also preferred an appeal being aggrieved by the refusal of the trial court to grant them the relief of permanent injunction R.A. No. 72/2006. The learned judge of the lower appellate court rendered a common judgment, in the two appeals preferred by the parties and concurred with the view taken by the trial court as regards the nature of the right claimed by the plaintiffs and also held that the termination order in question is illegal and void and further, the lower appellate court took the view that consequent upon the declaration that the plaintiffs are the hereditary archakas of Shri Vinayakadeva Temple, Idagunji, therefore, they are entitled for the consequential relief of permanent injunction against the defendants. In other words, the appeal preferred by the plaintiffs was allowed and the one preferred by the defendants was dismissed. Aggrieved by the said judgment and decree of the lower appellate court, the defendants have come up before this Court in these two appeals.

At the time of admission of these appeals, this Court had framed the following substantial question of law:

Whether the judgment of the lower appellate court is vitiated for non-compliance of Order 41 Rule 31 of C.P.C.?

I have heard the arguments addressed by learned senior counsel Shri S.K.V. Chalapathy, for the appellants and learned Counsel Shri S.P. Kamath, for the respondents and carefully went through the entire material on record inclusive of the judgments of the courts below as well as the judgment of this Court in C.R.P. No. 4708/2001 and that of the Apex Court in Civil Appeal No. 5641/2004.

At the outset, the learned senior counsel for the appellants, fairly admitted that the finding of the courts below that the plaintiffs are the hereditary archakas of Shri Vinayakadeva Temple, Idagunji, is a finding of fact and, as it is a concurrent finding of the courts below, the appellants cannot urge in these second appeals, as regards the said finding of fact. However, it was contended that the plaintiffs, being the archakas of Shri Vinayakadeva Temple, are nothing but the servants under the control of the trustees and, therefore, the lower appellate court could not have granted the relief of injunction.

It was argued that the relationship between the appellants i.e., the trustees on one hand, and that of the respondents i.e., the archakas on the other, is in the nature of master and servant and, therefore, a contract of personal service cannot be made enforceable. The plaintiffs were terminated on 21.9.1994 and, except for a brief period during which the plaintiffs had the advantage of temporary injunction order granted in their favour, during rest of the period, the plaintiffs were not working as archakas right from 9.4.1996 and, therefore, the lower appellate court could not have granted the relief of injunction in their favour.

Referring to the provisions contained in Order 9 Rule 9 of the C.P.C., it was contended that when the suit filed by the plaintiffs in O.S. No. 17/1976 came to be dismissed, they are precluded from bringing a fresh suit in respect of the same cause of action. In this regard, the learned senior counsel referred to the plaint filed in O.S. No. 17/1976 and to the other documents on record, in particular to Ex.D-137.

The next submission is that, in the written statement filed by the defendants in the earlier suit, they had denied the hereditary rights of the plaintiffs and, therefore, when such being the undisputed facts concerning the earlier suit, the present suit on the very same cause of action, therefore, is not maintainable. In this connection, it is submitted that as the relief claimed in the earlier suit and the one that is claimed in the present suit being one and the same in substance, the provisions of Order 9 Rule 9 of the C.P.C. get attracted. As the said contention advanced is a pure question of law, this Court can entertain the said question of law being raised even at the stage of second appeal.

The next contention put forward is that, having regard to the cause of action and the relief sought in the present suit and the cause of action in the earlier suit i.e., O.S. No. 17/1976, the suit of the plaintiffs is also barred by limitation in view of Article 58 of the Limitation Act, 1963. As such, the question of limitation also is a question of law which this Court will have to consider in these second appeals.

As far as the relationship between the appellants as trustees and the respondents as archakas is concerned, the learned senior counsel strongly contended that the relationship is one of master and servant and, therefore, the master has every right to terminate the services of his servant. As the case of the present plaintiffs does not fall within the exceptions viz., (i) where a public servant is sought to be removed from service in contravention of Article 311 of the Constitution of India, or (ii) where a worker is sought to be reinstated on being dismissed under industrial law, or (iii) where a statutory body acts in breach or violation of the mandatory provisions of the statute, the question of granting injunction in their favour does not and cannot arise. Therefore, even if the plaintiffs are entitled to a declaration of their right as hereditary archakas of Shri Vinayakadeva Temple, yet, they are not entitled to the consequential relief of injunction. In this connection, it was further submitted that the office of an archaka could encompass both religious and secular activities and if it fails in the secular nature of the activities, then, the archaka can have no grievance if his services are terminated by the trustees.

It was then contended, that the hereditary right is not an integral part of the religious practice. Referring to the decisions of the Apex Court particularly in the cases reported in A.S. Narayana Deekshitulu Vs. State of Andhra Pradesh and Others, and Seshammal and Others, Vs. State of Tamil Nadu, , it was submitted that the services of a priest (archaka) is a secular part and the act of appointment of an archaka is a secular act and, therefore, the services of an archaka can be terminated by the trustees because, the archaka owes his existence to an order of appointment whether it is in writing or otherwise and the archaka is, therefore, subject to discipline on par with the other members of the establishment.

The learned senior counsel, in this regard, placed much emphasis on the observations of the Apex Court in the decision reported in A.S. Narayana Deekshitulu Vs. State of Andhra Pradesh and Others, . My attention was also drawn to paragraph-19 of the decision of the Apex Court reported in Seshammal and Others, Vs. State of Tamil Nadu, to reiterate, that the archaka owes his appointment to secular authority and any lay founder of a temple may appoint the archaka.

As far as the claim of the plaintiffs that they alone were entitled to perform the pooja as archakas of Shri Vinayakadeva Temple is concerned, the learned senior counsel, referring to the evidence on behalf of the plaintiffs, submitted that the plaintiffs themselves have deposed in their evidence that they do not perform the pooja by looking at the books and that they also do not know Sanskrit language and that the poojas were not conducted by them as per the timings mentioned by the trustees and therefore, it does not give rise to the view, that only the plaintiffs and their families are entitled to perform the duties of archakas. Insofar as the appointment as archaka is concerned, any person who satisfies the required qualification for being appointed as archaka can be so appointed, but however, as far as the actual pooja is concerned, an archaka will have to have necessary knowledge to perform various poojas. In this connection, reference was also made to the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 (for short, the Karnataka Act, 1997) and to the Rules thereunder.

Insofar as grant of injunction by the lower appellate court in favour of the plaintiffs is concerned, learned senior counsel Sri. Chalapathy submitted that in the face of the facts and circumstances of this case and the plaintiffs having been removed from the archakship by the order of termination, the lower appellate court could not have granted the said relief of injunction. It was contended in this regard that the trustees have lost confidence in the archakas and this is evident from the admission made by P.W.I in the course of his cross-examination.

Therefore, the question of the plaintiffs being granted the relief of injunction against the appellants does not arise. As there is no statutory regulation in force, the position of the archaka will be that of a servant and, therefore, the ordinary principles which govern the master and servant relationship will have to be applied and, therefore, even if the plaintiffs are able to establish that they are the hereditary archakas of Shri Vinayakadeva Temple, the question of granting the relief of injunction, which is akin to giving the relief of reinstatement, does not arise.

As far as the view taken by the courts below that the plaintiffs can be removed only by the court is concerned, the submission made is that the said situation will arise only in the case of shebait but not in the case of an archaka and an archaka cannot be placed in an altogether different position than any other servant, in a master and servant relationship.

The next submission made is that the observations made by this Court while disposing of C.R.P. No. 4708/2001 will have to be viewed from the angle of the relevant issues which were the focal points of that petition and, as such, any observation that is made outside the purview of the issues concerned, therefore, cannot be given much importance. It was submitted in this regard that even in the judgment of the Apex Court in Civil Appeal No. 5641/2004, all that the Apex Court had observed is that if the plaintiffs are able to establish their right as hereditary poojaries or archakas of Shri Vinayakadeva Temple, they are entitled for the declaration sought for by them. Therefore, the judgment of the Apex Court does not give the lower appellate court scope to grant the relief of injunction.

Yet another contention put forward by the learned senior counsel is that, both the courts below have held that the plaintiffs being the archakas are the servants and as against the said findings of the courts below, the plaintiffs have not preferred any appeal and hence, it is not open to the respondents-plaintiffs to contend that they are not the servants. As such, having regard to the scope of this Court in second appeal and the law laid down by the Apex Court while interpreting Section 100 of the C.P.C., it is impermissible for the respondents to contend that there exists no master and servant relationship between the trustees and the archakas.

One other contention advanced by the learned senior counsel is that the judgment of the lower appellate court suffers from the defect of not being in conformity with the requirement of Order 41 Rule 31 of the C.P.C. inasmuch as, the lower appellate court has not formulated the points for determination and, as such, for this reason also, the judgment of the lower appellate court cannot be sustained and rightly, this Court has framed substantial question of law concerning the justification of the judgment of the lower appellate court for non-compliance of Order 41 Rule 31 of the C.P.C.

In support of all the aforesaid contentions urged, the learned senior counsel for the appellants placed reliance on the decisions reported in Dharam Karan Bahadur Asaf Jahi and Another Vs. Sm. Shahzad Kunwar and Others, , A.S. Narayana Deekshitulu Vs. State of Andhra Pradesh and Others, , Seshammal and Others, Vs. State of Tamil Nadu, , S.B. Dutt Vs. University of Delhi, , Executive Committee, U.P. Warehousing Corporation Vs. Chandra Kiran Tyagi, , Suraj Ratan Thirani and Others Vs. The Azamabad Tea Co. and Others, , Vishwas Balu and Others Vs. Ghasiram Ramratan Jajum and Others, , M.K. Ranganathan and Another Vs. Government of Madras and Others, , State of Madras and Another Vs. K.M. Rajagopalan, , Ushabai and Others Vs. Balkrishna Biharilal and Others, , Commissioner of Income Tax Vs. M/s. Sun Engineering Works (P.) Ltd., , Amrendra Pratap Singh Vs. Tej Bahadur Prajapati and Others, , State of Orissa and Others Vs. Md. Illiyas, .

On the other hand, Sri. S.P. Kamath, the learned Counsel for the respondents, in the course of his arguments, contended that the judgment of the lower appellate court requires no interference at the hands of this Court inasmuch as the lower appellate court has concurred with the trial court with regard to the nature of right that is claimed by the plaintiffs and as both the courts have taken the view mat the plaintiff''s have established their hereditary right of archakas with emoluments being attached, in effect, the right claimed by the plaintiffs being in the nature of the property, and, therefore, this Court cannot interfere with the concurrent findings of fact of the courts below.

Secondly, the learned Counsel for the respondents referred to the mythological background of the temple and the idol of Ganapathi to submit that Shri Vinayakadeva Temple at Idagunji has a very long history which goes back into the mythological era and the archakas of the said Shri Vinayakadeva Temple, Idagunji, have been preserving the divinity in the idol by performing various poojas in accordance with the Agama Shasthra and the ancestors of the plaintiffs'' family have been discharging the said duties from long time and in this regard, the learned Counsel took me through the pleadings as well as the evidence on record, to contend that the archakas cannot be put on the pedestal of a servant, to say that the trustees can terminate the services of archakas.

On the other hand, the contention of the learned Counsel for the respondents is that, from time immemorial, the families of the plaintiffs have been functioning as hereditary archakas of Shri Vinayakadeva Temple and with the emoluments being attached to the said office of hereditary archakas, the nature of right crystallizes into one of property and, therefore, the trustees could not have removed the hereditary archakas by simply issuing an order of termination.

It is argued that though initially the duties of hereditary archaka and that of the shebait were combined in the archakas of Shri Vinayakadeva Temple, later on, the plaintiffs'' families have been functioning as hereditary archakas. It is then submitted that the office of hereditary archaka attached with emoluments becomes one integral part, which cannot be bifurcated and as the trustees only look after the secular aspects of the temple activities, it was impermissible for them to remove the plaintiffs, by an order of termination, as if the plaintiffs are the servants under them.

The learned Counsel submitted that the pooja will have to be performed as per Agama Shasthra which combines vedic concept of divinity as well as tantrik rites. It was submitted further that even according to the appellants, the families of the plaintiffs have been the hereditary archakas of Shri Vinayakadeva Temple from time immemorial and the right that is now crystallized in the form of property, is an intangible right. There is no incident prior to 1994, of anyone else apart from the families of the plaintiffs functioning as archakas of Shri Vinayakadeva Temple.

As far as the present suit being hit by the provisions of Order 9 Rule 9 of the C.P.C. is concerned, it is submitted that the cause of action for the earlier suit and for the present one are totally different and the earlier suit was filed for bare injunction whereas the present suit was the result of termination order issued by the defendants and, therefore, the question of cause of action being the same in both the suits does not arise and rightly both the courts have negatived the said contention put forward by the defendants. In this regard, it is submitted by Sri. Kamath that mere denial by the defendants in the earlier suit itself is not sufficient, but in order to support the contention advanced by the appellants, it was required to show that there was actual threat given to the plaintiffs and as the plaintiffs'' hereditary right was not in serious threat when the earlier suit was filed, it was only when the threat assumed the position of an order of termination being issued by the trustees, mat the plaintiffs had to take recourse to the present suit and, as such, the present suit being hit by the provisions of Order 9 Rule 9 does not arise.

As regards the relationship between the parties is concerned, the learned Counsel for the respondents strongly refuted the arguments advanced in this regard and contended that the relationship between the trustees and the archakas of Shri Vinayakadeva Temple should not be viewed as if it is one of master and servant relationship; Relying on the decision of the Apex Court reported in Raj Kali Kuer Vs. Ram Rattan Pandey, , it is contended that the hereditary right of an archaka is in the nature of property and, therefore, an archaka having such legal character with regard to his rights, can only be removed by taking appropriate steps through the court. As such, in the instant case, as no scheme was in existence governing Shri Vinayakadeva Temple at Idagunji and the trustees being appointed by the District Court and as there was no order of appointment issued to the plaintiffs at any point of time, the question of the trustees having the power of terminating the services of hereditary archakas, therefore, cannot be conceived at all having regard to the law laid down by the Apex Court.

It was then submitted by Sri. Kamath that with the passing of the Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997, the concept of trustee in a temple has been done away with and as far as the applicability of the new Act of 1997 is concerned, the learned Counsel for the respondents invited my attention to an order passed by this Court in Writ Petition No. 890/2006 wherein it was observed that the new Act has been made applicable prospectively and, therefore, having regard to the nature of right that is sought by the plaintiffs in their declaratory suit, it is not necessary to stay the suit proceedings, until the determination of the constitutional validity of the new Act in regard to which the matter was pending in Writ Appeal No. 2629/2005. It is, therefore, contended by the learned Counsel for the respondents that the trustees could not have terminated the services of the plaintiffs.

Concerning the procedure followed before termination is concerned, the learned Counsel Sri. Kamath for the respondents submitted that the Niyamavalis framed by the defendants only mention about the amount or fee payable in respect of various categories of poojas and nothing more than that. Therefore, in the absence of any rules being in vogue, the defendants could not have terminated the services of the plaintiffs by issuing an order. Moreover, it is submitted that the said order of termination also suffers from the vice of not adhering to the principles of natural justice inasmuch as the plaintiffs were not given any show cause notice before the order of termination came to be passed.

Furthermore, though the appellants contended that the termination was a termination simpliciter, a plain reading of the contents of the termination order will go to indicate that the termination was on account of certain misconduct alleged against the plaintiffs by the trustees. Therefore, the order of termination becomes void and rightly, both the courts below have declared it as illegal and void.

Referring to the observations of this Court while disposing of C.R.R. No. 4708/2001, the submission is made by the learned Counsel for the respondents is that, this Court, while confirming the findings of the trial court on preliminary issues, has also observed that when the archakas claimed hereditary right, it is a matter for decision by the civil court and the civil court has not only the jurisdiction to entertain the suit, but also to grant injunction. Referring to the said observations of this Court, the learned Counsel for the respondents submitted that as the judgment of this Court in C.R.P was confirmed by the Apex Court in Civil Appeal No. 5641/2004, the plaintiffs, therefore, are entitled for an order of injunction as a consequential relief upon declaration of their hereditary right.

As regards the judgment of the Apex Court in Civil Appeal No. 5641/2004 is concerned, the learned Counsel for the respondents, referring to the observations made therein, submitted that the Apex Court, after referring to several decisions touching on the point of the nature of right of an hereditary archaka, ultimately, held that as the plaintiffs are seeking a declaration about their hereditary right as archakas of the temple and as this right is claimed by them in their personal capacity as the family of archakas, it is for the plaintiffs to establish their right and if they fail to establish their claim, they will be out of court, but however, if they succeed in establishing their claim, they will be entitled to the declaration sought.

In view of the aforesaid observations of the Apex Court in Civil Appeal No. 5641/2004, the learned Counsel for the respondents, submitted that as the plaintiffs have established their hereditary right as archakas of Shri Vinayakadeva Temple, Idagunji, all that remained was, for the court to grant the consequential relief of injunction. Since both the courts have concurred in holding that the plaintiffs have established their hereditary right as archakas of Shri Vinayakadeva Temple, the trial court ought to have granted the consequential relief of injunction and as this was not granted, the plaintiffs were constrained to approach the lower appellate court by preferring R.A. No. 72/2006 and rightly, the lower appellate court had rectified the error committed by the trial court and has granted the relief of injunction, which relief is the consequential relief.

In this regard, the learned Counsel for the respondents also referred to Section 34 of the Specific Relief Act to submit that where the plaintiff is also in a position to seek a further relief than mere declaration, omission to seek such relief will disentitle the plaintiff from seeking declaration as well. Therefore, the submission made is that the judgment of the lower appellate court in granting the relief of injunction cannot be termed as erroneous either on facts or in law.

As far as the ground urged by the appellants with regard to non-compliance of the provisions of Order 41 Rule 31 of the C.P.C. is concerned, the learned Counsel for the respondents Sri. Kamath submitted that the lower appellate court has considered all the aspects of the matter, leaving no stone unturned and this is evident from the reasoning given by the lower appellate court in the course of its judgment. Therefore, the question of the judgment of the lower appellate court suffering from non-compliance of the requirement of Order 41 Rule 31 of the C.P.C. does not arise.

As to the contention put forward by the learned senior counsel for the appellants that two of the plaintiffs are above the age of 70 years and, therefore, having regard to Rule 6 of the Karnataka Hindu Religious Institutions and Charitable Endowment Rules, 2002, the question of permitting the said plaintiffs to function-as archakas will not arise as the age that is prescribed for superannuation under the Rules is 65 years, is concerned, the submission of the learned Counsel for the respondents is that though the Karnataka Hindu Religious Institutions and Charitable Endowment Act, 1997 has been held to be unconstitutional by a Division Bench of this Court and as the said judgment of this Court is being challenged before the Apex Court and as there is an order of stay of the operation of the decision rendered by the Division Bench in this regard, yet, all these factors will not come as an impediment for the plaintiffs to claim the relief sought for by them in the suit

In this regard, it is submitted that the case of the plaintiffs is that the families of the plaintiffs have been functioning as the hereditary archakas of Shri Vinayakadeva Temple of Idagunji and even if one or two plaintiffs are above the age of 65 years, that will not disentitle the other members of the families of the plaintiffs from functioning as hereditary archakas of Shri Vinayakadeva Temple because, even under the Karnataka Act, 1997, the concept of hereditary archakas has been recognised and this is clear from a plain reading of the provisions of the Act of 1997 as well as the Rules, 2002, and in this regard, my attention was drawn to Rule 6 which also takes care of the hereditary archakas.

Therefore, it is submitted that, even as on date, the concept of hereditary archakas is recognised and given effect to and the present Act of 1997 has not abolished the office of hereditary archakas. Therefore, the submission made is that merely because one or two plaintiffs are above the age of 65 years, that does not deprive the plaintiffs from getting the consequential relief of injunction.

To the submission made by the learned Counsel for the appellants that the plaintiffs-archaks have been held to be servants by the trial court and also by the lower appellate court and the said finding has not been questioned by the plaintiffs is concerned, the reply argument of the learned Counsel Sri. Kamath is that there is no finding recorded by the courts below on the question of master and servant relationship between the trustees and the archaks, as no issue has been framed in this regard nor any evidence led by the parties, in regard to the said issue and absolutely no finding is there by the courts below. Apart from this, it is submitted that the lower appellate court by granting the consequential relief of injunction has therefore not accepted the argument of the appellants that the archakas are to be treated as servants.

In respect of the rulings of the Apex Court reported in A.S. Narayana Deekshitulu Vs. State of Andhra Pradesh and Others, and Seshammal and Others, Vs. State of Tamil Nadu, are concerned, it is submitted by the learned Counsel for the respondents that in all those cases, the Apex Court was concerned with the respective State Act, by which, the hereditary archak office was abolished and therefore the said rulings have no bearing as far as the present case is concerned, because there is no scheme in operation concerning Idagunji temple.

Pointing to termination order, it is submitted that neither any appointment order was issued by the trustees to any of the plaintiffs or to their ancestors at any point of time, nor a show cause notice preceded the said order. It was also submitted in this connection that the decision rendered by the Apex Court in the case reported in A.S. Narayana Deekshitulu Vs. State of Andhra Pradesh and Others, , is sought to be reviewed and the Apex Court in a later case reported in A. Ramaswamy Dikshitulu and Others Vs. Government of Andhra Pradesh and Others, has accepted the contention put forward by the learned Counsel for the review petitioners therein and has thought it fit to refer the question raised in the review petition to a larger Bench.

As far as the plaintiffs being qualified to perform necessary poojas as per the Agama Shastras is concerned, the learned Counsel Sri. Kamath submitted that one of the documents produced before the trial court Ex.P9 indicates that the poojas in the Vinayaka Temple are being performed in accordance with Agama Shastra and in this regard, there is also a word of appreciation given by none other than the ''Rishi Devaratha'' who is the author of the work ''Chando Darshan'' published by Bharatiya Vidya Bhavan. According to the learned Counsel Sri. Kamath, all the verses found in the said work, are the words that came out of the mouth of Rishi Devaratha, when he was in a transcendental state. Therefore there is no substance in the argument advanced by the appellants'' Counsel with regard to the plaintiffs-archaks being in capable of performing poojas in accordance with Agama Shastra.

Finally, concerning the relief granted by the lower appellate court, by way of reply, learned Counsel Sri. Kamath, submitted that the lower appellate court has rightly granted the consequential relief of injunction having regard to the nature of the right that was claimed by the plaintiffs and also having regard to the emoluments which were attached to the office of Archaks and the said emoluments cannot be quantified in pecuniary terms so as to claim damages. Moreover, it is not the case of the plaintiffs that they are seeking any damages, but all that is sought in the plaint is a declaration as to the hereditary right of the archaks and for consequential relief. It is submitted in this regard that grant of declaration without granting the consequential relief will amount to travesty of justice and mere declaration will not serve the cause of the plaintiffs, and therefore various provisions of Specific Relief Act referred to by the appellants'' Counsel have no application to the case on hand.

In support of all the above submissions made by way of reply arguments, learned Counsel Sri. Kamath placed reliance on the following decisions reported in G. Amalorpavam and Others Vs. R.C. Diocese of Madurai and Others, , Kashmir Singh Vs. Harnam Singh and Another, ; Boodireddy Chandraiah and Others Vs. Arigela Laxmi and Another, , Sri Sinna Ramanuja Jeer and Others Vs. Sri Ranga Ramanuja Jeer and Another, , Madamanchi Ramappa and Another Vs. Muthalur Bojjappa, , The State of U.P. Vs. Ram Chandra Trivedi, , Dnyanoba Bhaurao Shemade Vs. Maroti Bhaurao Marnor, , Taherakhatoon (D) by Lrs. Vs. Salambin Mohammad, , Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, , Dnyanoba Bhaurao Shemade Vs. Maroti Bhaurao Marnor, , Arunachalarn and Co. and Others Vs. M. Sadasivarn, : C. Subbaiah Setty, (by his L.Rs.) Vs. Smt. Savithramma, : Chikkahottappa alias Varadegowda and others Vs. State, ; Kondiba Dagadu Kadam Vs. Savitribai Sopan Gujar and Others, , Arumugham (Dead) By Lrs. and Others Vs. Sundarambal and Another, : Vinayaka Dev Idagunji and Others Vs. Shivaram and Others, , Raj Kali Kuer Vs. Ram Rattan Pandey, : Mst. Rukhmabai Vs. Lala Laxminarayan and Others, : Annasami Aiyangar alias Ramaswami Aiyangar and Others Vs. Nithiyapadi Adivarachari and Others, ; Bharat Singh Vs. Kunwar Singh and Another, , Sajjadanashin Sayed Md. B.E.Edr. (D) By Lrs. Vs. Musa Dadabhai Ummer and Others, , Balkrishna Savalram Pujari and Others Vs. Shree Dnyaneshwar Maharaj Sansthan and Others, , State of U.P. Vs. Civil Judge, Nainital and Others, , C. Mohammed Yunus Vs. Syed Unissa and Others, , Gram Panchayat of Village Naulakha Vs. Ujagar Singh and Others, , State of Maharashtra and another Vs. M/s. National Construction Company, Bombay and another, , Kewal Singh Vs. Smt. Lajwanti, , A. Ramaswamy Dikshitulu and Others Vs. Government of Andhra Pradesh and Others, , Ram Rattan (Dead) by Lrs. Vs. Bajrang Lal and Others, .

On behalf of the 6th respondent, Sri. Vinayaka Deva Trust, the learned Counsel Sri. Narayan R. Nayale submitted that the Trust is interested only in preserving the divinity in the idol of Ganapathi and nothing more.

Before I proceed to consider the contentions put forward by the learned senior Counsel Sri. S.K.V. Chalapathy for the appellants, in the light of the reply arguments advanced by the learned Counsel Sri. Karnath, it is necessary to keep in view the well settled principles of law with regard to the scope of interference by this Court in second appeal. Both sides have referred to number of decisions in this regard and the law on this aspect is well settled by a catena of decisions of the Apex Court.

As rightly submitted by the learned Counsel Sri. Chalapathy for the appellants, this Court in second appeal cannot interfere with the concurrent findings Of facts howsoever erroneous, the said findings may be. At the same time, it is also well-settled position in law that interference by the High Court in second appeal is permissible under certain exceptional circumstances. I therefore do not deem it necessary to refer to all the judgments referred to by the learned Counsel for the parties, as the law is well settled in this regard. However, I will refer to the latest judgment of the Apex Court in which the Apex Court considered the scope of interference by the High Court in second appeal and when such interference is permissible and also referred to the parameters which constitute a substantial question of law being raised for consideration in a second appeal. In the case of Kashmir Singh v. Harnam Singh and Ors. 2008 AIR SCW 2417, the Apex Court has laid down the following preposition of law;

To be ''substantial'' a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law ''involving in the case'' there must be first a foundation for it laid in the pleadings and the question should emerge from the sustainable findings of fact arrived at by Court of facts and it must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking judicious balance between the indispensable, obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis.

The general rule is that High Court will not interfere with concurrent findings of the Courts below. But it is not an absolute rule. Some of the well recognized exceptions are where (i) the Courts below have ignored material evidence or acted on no evidence; (ii) the Courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the Courts have wrongly case the burden of proof. ''Decision based on no evidence'', not only means cases where there is a total dearth of evidence, but also refers to any case, where the evidence, taken as a whole, is not reasonably capable of supporting the finding.

Keeping the above principles in view, I proceed to deal with the contentions urged by the learned Senior Counsel Sri. Chalapathy for the appellants. Before I do so, it is also necessary to place on record at this juncture certain facts, which are not in dispute.

The findings recorded by the trial court on the preliminary issues namely issue Nos. 25, 26, 29 and 30 were in the ''negative'' and against the appellants and as such the appellants preferred C.R.P. before this Court in C.R.P. No. 4708/01. By its judgment dated 28.1.04, this Court, in Sri. Vinayaka Devidagunji and Ors. v. Shivaram N. Bhat and Ors. 2004 (2) KLJ 460, dismissed the said C.R.P., by observing that no infirmity can be found in the finding recorded by the trial court on the preliminary issues. In the course of the aforesaid decision, this Court also observed at para-27 as under:

This makes clear when the Archaks claim the hereditary rights, is a matter to be decided at the final disposal thereby the Civil Court has jurisdiction not only to entertain the suit but also to grant injunction.

Aggrieved by the dismissal of the C.R.P., the appellants have approached the Apex Court in Civil Appeal No. 5641/04 and the said Civil Appeal was also dismissed and in the course of its judgment, the Apex Court made the following observations:

This was also a case in which right to archakship was claimed and it was held to be a private right which had nothing to do with administration or management of the trust and the suit was held to be maintainable in a civil court. In the case in hand respondents/plaintiffs are trying to establish their hereditary right to act as archaks in the temple in suit. This has nothing to do with administration of the trust.

What is to be seen is the relief the plaintiffs are seeking from the court. First of all, they are seeking a declaration about their hereditary right as archaks of the temple. This right is claimed in their personal capacity as a family of archaks who have been performing the functions of archaks since the day the temple was established and the deity was consecrated. It is different matter whether ultimately the plaintiffs'' contention is accepted by the court or not. Surely, the plaintiffs are entitled to have their claim examined by the court. If they fail to establish their claim, they will be out of the court. However, if they succeed in establishing the claim they will be entitled to the declaration sought. They cannot be non suited at the threshold unless the suit is expressly barred by any statute. We have seen the provision of Section 50 of the Bombay Public Trusts Act relied upon by the appellants-defendants. The said section does not cover a suit of the present type. Analogy has been drawn of Section 92 of the CPC while considering Section 50 of Bombay Public Trusts Act. Both provisions are in the nature of representative suits which pertain to public trusts and protection of public interest in the trusts. In the present case, there is no public interest involved. The only interest is that of the plaintiffs and their families. The right of archakship is claimed on the basis of inheritance. It is a hereditary personal right, which they want to establish. The right is purety of a private nature. We are of the view that Section 50 of the Bombay Public Trusts Act is not attracted at all in the facts of the present case.

Our attention was drawn by the learned Counsel for the respondents to some other judgments holding the right to perform puja in the temple as a private right of the pujaris or archaks and the same cannot be defeated by invoking Section 50 of the Bombay Public Trusts Act or Section 92 of the Code of Civil Procedure. We need not refer to all the judgments in view of the fact that the law on this point is well settled. We only refer to the latest judgment of this Court in Sahebgouda (dead) by Lrs. and Others Vs. Ogeppa and Others, . This case pertains to a suit for declaration of Pujaris'' Pujari ki right of performing puja. The plaintiff sought an injunction to restrain the defendants from interfering with the aforesaid right. Objection was taken about the maintainability of the civil suit in view of the provision of Bombay Public Trusts Act, 1950. However, the objection was turned down holding that the reliefs claimed in the suit do not come within the ambit of Sections 19 or 79 of the Act which gave jurisdiction to the Assistant Charity Commissioner to decide certain issues like existence of public trust or whether a property is a trust property. In this suit brought by the plaintiffs to establish his right of archakship the only relief claimed was a declaration regarding the right of the plaintiffs-appellants to function as hereditary pujaris or for Pujari ki rights in performing puja in the temple and consequential decree for injunction for restraining the respondents from interfering with the aforesaid rights of the plaintiffs. The facts of this case are somewhat similar to those of the case in hand. It was held that the case was clearly out of the purview of the barring provisions of the Bombay Public Trusts Act. We are in respectful agreement with the view taken in this judgment. It is held that the present suit is not barred by provisions of Bombay Public Trusts Act. Accordingly, no interference is called for with the judgment under appeal. The appeal is without merit and is hereby dismissed. Since the trial of the suit on merits has been already sufficiently delayed, the trial court may dispose of the suit on priority basis as directed by the High Court in the impugned judgment.

The appellants also had preferred the writ petition before this Court in W.P. No. 890/06 and sought for stay of the suit proceedings until the final determination of the constitution validity of Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997 and this Court while dismissing the writ petition on 10.2.06, made the following observations;

The cause of action for the suit arose in the year 1994 for the two reliefs of declaration of plaintiffs rights to hereditary archakship and to declare the notice of termination of archakship as null and void, which cannot be said to have become invalid or insignificant consequent to the coming into force of the ''Act'', since the ''Act'' is only prospective in operation. Whether the right to hereditary archakship is abolished by the ''Act'' is a question that cannot be decided in this proceeding. It is no doubt true that the constitutional validity of the "Act" is pending before this Court before a Division Bench. Be that as it may, it is not in dispute that "Act" was not made applicable with retrospective effect but was only prospective from the date it was into force. Thus on the date when the cause of action arose for the plaintiffs claim to certain declaratory rights did survive for consideration.

What is clear from the above judicial pronouncements and in particular, the judgment of the Apex Court in C.A. No. 5641/04 is that the plaintiffs approached the trial court to establish their hereditary right as archaks of Vinayaka Deva temple and if the plaintiffs succeed in establishing their claim as to the nature of right sought for by them, they will be in the words of the Apex Court, "entitled to the declaration sought". The Apex Court also observed that the plaintiffs couldn''t be non-suited at the threshold, unless the suit is expressly barred by any statute. Therefore when the parties went for trial before the trial court to lead evidence, the parameters had been fixed by virtue of the observations made by the Apex Court and all that the plaintiffs were required to do was to establish their hereditary right as archaks of the Vinayaka Deva Temple, which right according to the plaintiffs is in the nature of property as emoluments were also attached to the office of an Archak.

The trial court upon a detail analysis of the evidence both oral and documentary placed by the parties, came to the conclusion that the plaintiffs had proved, that, they are the hereditary archaks of Sri. Vinayaka Deva Temple, Idagunji and that they were not appointed by anyone and further the trial court also held that the plaintiffs had proved that the emoluments which they claim, were attached to the hereditary Archakship. Thus, both issue Nos. 1 and 2 framed by it were answered in favour of the plaintiffs. The lower appellate court concurred with the said findings recorded by the trial court on issue Nos. 1 and 2. The learned judge of the lower appellate court also dealt with the evidence placed by the parties in detail and also considered the reasons given by the trial judge for recording affirmative findings on issue Nos. 1 and 2. As the said findings on issue Nos. 1 and 2 being purely findings of facts and also being concurrent findings of the courts below, this Court cannot interfere with the said findings in second appeal in view of the law laid down by the Apex Court in this regard.

Nevertheless, I have also examined the reasons assigned by the courts " below for recording a finding in favour of the plaintiffs on issue Nos. 1 and 2 and I do not find any perversity of finding nor can it be said that the conclusion reached by the courts below on issue Nos. 1 and 2 are contrary to the evidence on record. It also cannot be said, from having examined the entire material placed by the parties and the oral evidence adduced by the plaintiffs as well as the defendant No. 1, that the courts below have drawn wrong inferences from proved facts by applying the law erroneously.

It has come in the evidence of the plaintiffs that from time immemorial, the plaintiff''s families have been performing the duties of archaks of Vinayaka Deva Temple and this can be traced to the plaintiffs ancestors who were the hereditary archakas of Vinayaka Deva Temple, and it is also evidenced by voluminous documents produced by the plaintiffs, apart from the oral evidence placed on record. Even the appellants on their side got examined the contesting defendant as DW-2 and he has also admitted that prior to 1994, except the families of the plaintiffs no other persons performed the duties of archaks. It is also conceded by DW-2 in the course of his evidence, that the pooja has been and is being performed from generation to generation by the plaintiffs'' families. The defendants themselves, in the cross-examination of DW-2, have elicited from his mouth the names of the family archaks who performed the duties of hereditary archaks of Vinayaka Deva Temple.

Apart from the said oral evidence on the plaintiffs'' side, several documents were produced and most of them belonged to a period, which is more than a century. Ex.P3, the partition deed is of the year 1862 and Ex.P37 is a decree copy in Civil case No. 609/1890 and Ex.P4, the partition deed among the members of the plaintiffs family, is dated 19.8.1905 and another document Ex.P114 dates back to the year 1912. The other documents produced are Ex.P 115, which is of the year 1913, Ex.P 116 which is of the year 1915, Ex.P7 is of the year 1929 and so also the document Ex.P6. Ex.P209 is of the year 1934, Ex.P 16 is of the year 1949 and another document Ex.P19 is of the year 1903 and Exs.P94 and P95 are of the years 1940 and 1936 respectively. Ex.P21 is of the year 1973. Exs.P96, P97 and P210 are the resolutions of the Trust Committee of the year 1950, 1951 and 1957 respectively.

I have made reference to the above documents only to indicate that the findings recorded by the courts below with regard to the plaintiffs being the hereditary archaks of Vinayaka Deva Temple is a finding which is based on the aforesaid voluminous documents, apart from the oral evidence and the admissions on record. It is therefore not surprising that both the courts below have had no difficulty in accepting the plaintiffs'' claim that they are the hereditary archaks of Vinayaka Deva Temple, Idagunji. As such, no interference is called for in this regard and the plaintiffs have crossed the first hurdle, by establishing that they are the hereditary archaks of Vinayaka Deva temple.

Since the relief claimed by the plaintiffs is for a declaration that they are the hereditary archaks of Vinayaka Deva Temple, Idagunji and the said right claimed by them is in the nature of property carrying emoluments in the form of Tastik, of share in Phalavali, in whole of Padiakki, an Anna of share in the worth of Panchakajjaya offered and half coconut for which offered and Dakshina and others as maintained by custom and further as they have also sought for declaration that the legal character and the hereditary priesthood based on the Upadhi rights for which it is origin in the ancient, immemorial, as well as recognized, unobstructed, continuous and peaceful open assertion, the said right has matured into a right in the nature of property, it therefore becomes necessary to refer to the position in law as regards the nature of right claimed by the plaintiffs in order to appreciate the validity of the relief granted by the courts below. I, therefore deem it necessary to refer to the following decisions, at this juncture.

In the case of Raj Kali Kuer Vs. Ram Rattan Pandey, dealing with the case involving a woman who claimed joint title to the office of poojary, the Apex Court considered the nature of office of an archak and held thus:

That religious offices can be hereditary and that the right to such an office is in the nature of property under the Hindu Law is now well established ...On the view that ''Shebaiti" is property, this Court has also recognised the right of a female to succeed to the religious office of ''Shebaitship'' ...On the same analogy that of a ''Shebaiti'' right, the right of a hereditary priest or ''Pujari'' in a temple must also amount to property where emoluments are attached to such an office...

Now there can be no doubt that while in one sense the right to such a religious office is property it involves also substantial elements of duty....both the elements of office and property, of duties and personal interest are blended together (in such offices) and neither can be detached from other''. It must also be recognized that in respect of such offices especially where they are attached to public institutions, the duties are to be regarded as primary and that the rights and emoluments are only appurtenant to the duties ... where such an office has developed into a hereditary right of property, the consideration of public policy cannot be insisted on to the extent of negativing the right itself. In such a situation what has to be equally emphasized is the duty aspect of the office and to insist, on the superior authorities in charge of the temple exercising vigilantly their responsibility by controlling the then incumbent of the priestly office in the exercise of his rights (or by other persons having interest taking appropriate steps through court), when it is found that the services are not being properly or efficiently performed. In view of the peculiar nature of such offices as combining in them both the element of property and the element of duty, it cannot be doubted that superior authorities in charge of the institutions or other persons interested have this right which may be enforced by appropriate legal means.

And came to the conclusion that:

A hereditary Pujari of a public temple where emoluments are attached to such an office can only be removed by a civil suit. The right to such an office is a right to property. The right to such office no doubt involves substantial elements of duty. The duties and personal interest are blended together and neither can be detached from the other. But the consideration of public policy cannot be insisted on to the extent of negativing the right itself. The right to the office in such a case cannot be destroyed without an adjudication by a civil court. The Shebait cannot be left to decide whether there has been neglect of duty to the extent of destroying the right to the office.

However, the Apex Court held thus at page-501 of the aforesaid judgment;

There is certainly force in this comment. But in a matter of this kind where there is no express prohibition in the texts for the performance of the duties of the ''Pujari''s'' office by the appointment of substitutes and where such an office has developed into a hereditary right of property, the consideration of public policy cannot be insisted on to the extent of negativing the right itself. In such a situation what has to be equally emphasised is the duty aspect of the office and to insist, on the superior authorities in charge of the temple exercising vigilantly their responsibility by controlling the then incumbent of the priestly office in the exercise of his rights (or by other persons having interest, taking appropriate steps through court), when it is found that the services are not being properly or efficiently performed. In view of the peculiar nature of such offices as combining in them both the element of property and the element of duty, it cannot be doubted that superior authorities in charge of the institutions or other persons interested have this right which may be enforced by appropriate legal means. In -''Peary Mohan Mukherji v. Monohar Mukherji'' AIR 1922 PC 235, the Privy Council has recognised that notwithstanding the personal interest of a ''Shebait'' in respect of his office, the performance of the duties thereof has got to be safeguarded and that he can be removed where he has put himself in a position in which the obligation of his office can no longer be faithfully discharged.

(emphasis by me)

In the case of Ram Rattan (Dead) by Lrs. Vs. Bajrang Lal and Others, , the Apex Court held that hereditary office of Shebait as well as right to worship by turn are immovable property and transfer of such property should be by a registered document. In the course of the aforesaid judgment, the Apex Court also made the following observations:

(3) When a question concerns the rights of Hindus, generally, it must be taken to include whatever the Hindu law classes as immovable property although not in the ordinary acceptation of the word. The office of the Shebait is hereditary unless provision to the contrary is made in the deed creating the endowment. In the conception of Shebait both the elements of office and property, duties and personal interest are mixed up and blended together and one element cannot be detached from the other. Courts in India, with very few exception, have recognized the hereditary office of Shebait as immovable property and it has all along been treated as immovable property uniformly. Therefore, the hereditary office of Shebait, which would be enjoyed by a person by turn, would be immovable property. The gift of such property must be by a registered instrument. Here, the High Court was justified in excluding the document in the instant case from evidence.

In another decision, the Andhra Pradesh High Court in the case of Ramanujacharyulu and Anr. v. Panduranghacharyulu and Ors. AIR 1957 AP 272, held that the office of an archaka when emoluments are attached to it, is heritable and partible property. In another decision, the very same High Court in the case of Narayan Seshabharyulu and Anr. v. Narayanam Venkatacharyulu AIR 1957 AP 876 held thus;

A hereditary archaka office is regarded as a species of property which devolves like any other property according to the ordinary law of inheritance. The law recognises hereditary succession to the office and emoluments of archakas as being is conscience with the presumed intention of the grantor or the founder. In the absence of proof of custom or usage of a different nature it is partible and heritable according to the Hindu Law of succession.

The office of archaka with its emoluments has come to be regarded as a species of property, heritable and partible like other private property. In such circumstances, there is no reason why Courts should refuse to recognise transfers by archakas of their right to the office and the emoluments to the remaining archakas or to those standing in the lime of heirs so long as the transfers are gratuitous and not made for the pecuniary benefit of the transferrors.

The learned author Mayne in his commentary "Hindu Law & Usage" (14th Edition), 1998 at page No. 1299, dealing with the office of a poojary (archaks) has this to say, "Where hereditary poojari is appointed for a public temple and emoluments are attached to that office, the right to such office is a right to property and his removal from the office is only by a civil suit and not by a shebait. It is heritable and partible. The hereditary poojari''s (archak''s) office is property and devolves like any other property according to the ordinary law of inheritance. When it sold the transfer is illegal.

(emphasis by me)

It is therefore clear from the aforesaid prepositions of law, laid down by the Apex Court as well as by the other High Courts and the observation in Mayne''s ''Hindu Law & Usage'', that the right to hereditary archaks office is a right to property where the emoluments are attached to the office of the hereditary poojary and such an archak can be removed only by a civil suit.

Having thus come to the conclusion that the archaks right as hereditary archaks of Vinayaka Deva temple with emoluments attached to the said office is a right in the nature of property, the point to be considered is as to whether the plaintiffs can be treated as ''servants'' under the control of the defendants-trustees.

Learned senior Counsel, Sri. S.K.V. Chalapathy, for the appellants, forcefully argued and also laid much emphasis on the master and servant relationship between the trustees and the archaks and contended that the trustees have every right to remove the archaks from service, if the archaks do not perform their duties keeping in view the sanctity of the temple and the interest of the public and devotees. The decisions upon which the learned senior Counsel placed much reliance are the one reported in A.S. Narayana Deekshitulu Vs. State of Andhra Pradesh and Others, and Seshammal and Others, Vs. State of Tamil Nadu, .

Insofar as the decision in the case of A.S. Narayana Deekshitutlu v. State of Andhra Pradesh and Ors. is concerned, referring to paragraphs 120 and 121 of the said decision, it was contended that the act of appointing an archak is a secular act and therefore the archaks being the servants can be treated like any other official of the temple-trust.

Having carefully gone through the observations made in the aforesaid paragraphs of the said decisions, what becomes clear is that the Apex Court has also recognised the distinction between the religious service of the person who performs the service and appointment which is a secular act has held at the very beginning of para-120 that insofar the tenets, Agamas, customs and usages prevalent in the temple that are an integral part of religious faith and belief and to that extent, the legislature cannot intervene to regulate it. Having observed thus, the Apex Court then went on to hold that the service of a priest (archaka) is a secular part.

The Court also held that though after the appointment, the archaks perform worship, it is no ground to hold that the appointment is either religious practice or a matter of religion and an archak being the holder of an office in the temple is subject to disciplinary power of a trustee or an appropriate authority prescribed in the regulations or rules or the Act and he owes his existence to an order of appointment be it in writing or otherwise. Having so observed, the Apex Court went on to hold that the abolition of the hereditary right to appointment u/s 34 of the Andhra Pradesh Charitable Hindu Religious Institution and Endowments Act, 1966 is not violative of either Article 25(1) or 26(b) of the Constitution.

In the decision of E.R.J. Swami v. State of Tamil Nadu, the challenge was to the Tamil Nadu Religious and Charitable Endowments Amendment Act, 1970 by which, the amended Section 55, provided that the vacancies among the office holders, among the office of the religious institutions shall be filled up by the trustees in all cases and by this amendment, the restriction put on the trustees, with regard to the office of service which is a hereditary was done away with. Dealing with the validity of the said Amendment Act, the Supreme Court upheld the validity of the Amendment Act. In the course of its judgment at para-19, the Apex Court held that the position of hereditary archaka of a temple is that of a servant subject to the disciplinary power of the trustees and as a servant, he is subjected to the discipline and control of the trust as recognised by the unamended Section 56 of the Principal Act and it was in this context, the Apex Court held that the Act of appointment of an Archaka by the trust is essentially a secular one and the archak owes his appointment to a secular authority.

On a careful reading of the aforesaid decisions of the Apex Court, having regard to the context in which the Apex Court made the aforesaid observations, it becomes clear that the Supreme Court was dealing with the two Acts of Andhra Pradesh and Tamilnadu and having regard to the abolition of the hereditary archakas by the Andhra Pradesh Act and the amendment brought to the Tamilnadu Act, the Apex Court held that as the archakas are appointed following the order of appointment and as the said two Acts provide for such appointment of an archaka, it is under these circumstances that the aforesaid observations were made by the Apex Court.

Whereas, the case on hand is a different cup of tea, in as much as, as pointed out by the learned Counsel for the respondents, the plaintiffs were never issued any appointment orders by the Trustees nor the ancestors of the plaintiffs families were appointed by the Trustees at any point of time. No scheme is in operation so far as Sri Vinayaka Dev Temple, Idagunji is concerned. There is also no statutory regulations governing the service conditions of the archakas of Sri. Vinayaka Dev Temple, Idagunji. Therefore the aforesaid decisions of the Apex Court, in my considered opinion, are not applicable to the case on hand as the facts and circumstances of the case with which we are concerned are altogether different from the ones which were the subject matter of the two decisions of the Apex Court referred to above.

Apart from this, it is also pertinent to mention at this juncture that the decision rendered in Deekshitulu case is sought to be reviewed by the Apex Court and in the case of A. Ramaswamy Dikshitulu and Others Vs. Government of Andhra Pradesh and Others, it was urged by the review petitioners that the decision which is sought to be reviewed goes counter to the principles of religious freedom and practices expanded in the cases i.e. Commissioner, HRE v. Sri Lakshmindra Thirtha Swamiar of Sri Shirur Mutt, Sri Venkataramana Devaru v. State of Mysore and Tilkayat Shri Govindlalji Maharaj v. State of Rajasthan and the decision of the Privy Council in Thiruvenkata Ramanuja Pedda Jiyyangarlu Valu v. Prathivathi Bhayankaram Venkatacharlu and the ratio in Seshammal v. State of Tamilnadu and the Apex Court in the light of the aforesaid contentions raised on behalf of the review petitioners, ultimately held that a case is made out by the review petitioners for consideration of the decision rendered in Deekshitulu case and accordingly the Apex Court referred it to a larger Bench.

Be that as it may, yet as far as the present case is concerned, the position of the hereditary archakas of Sri Vinayaka Dev Temple, Idagunji is not one such, as in the case of archakas under the Andhra Pradesh Act or Tamilnadu Act.

I now Proceed to consider the other main grounds canvassed by the learned senior counsel Sri. Chalapathy, for the appellants.

First of the series of contentions put forward pertains to non-compliance of requirement of Order 9 Rule 9 C.P.C. It is argued by the learned senior counsel that it is not in dispute that the respondents had filed a suit earlier in O.S. No. 17/76 and that suit had a chequered career in as much as the suit was dismissed for default and then after several proceedings, ultimately this Court had to direct the plaintiffs to seek for restoration of the application filed to recall the order of dismissal for default and on said application being filed, the trial court dismissed the said application by holding that no case is made out for recalling the order passed and dismissing the suit for default and against that order of the trial court, miscellaneous application is filed which is pending. Referring to all these proceedings, it is contended by the learned Counsel for the appellants that by virtue of the provision contained in Order 9 Rule 9 C.P.C, where a suit is wholly or partly dismissed under Rule 8, the plaintiff shall be precluded from bringing a fresh suit in respect of the same cause of action.

It is therefore urged by the learned senior counsel for the appellants, that even in the earlier suit O.S. No. 17/76 the plaintiffs had questioned the Niyamavalies and in the present suit also the plaintiffs have questioned the Niyamavalies framed by the Trustees and as such, both the suits being substantially same in nature and as the cause of action for both the suits being one and the same, the plaintiffs are debarred from bringing a fresh suit. In this connection, learned senior counsel also referred to the decision of the Apex Court. In the said decision in the case of Suraj Ratan Thirani and Others Vs. The Azamabad Tea Co. and Others, , the Apex Court dealing with Order 9 Rule 9 C.P.C., observed that in considering whether the cause of action in the subsequent suit is the same or not as the cause of action in the previous suit, the test to be applied is "are the causes of action in the two suits in substance and not technically identical." Thus, the term "cause of action" is to be construed with reference, rather to the substance than to the form of action. Relying on the aforesaid proposition of law, a submission was made by the learned senior counsel that the substance is one and the same in both the suits and as such the plaintiffs are precluded from bringing fresh suit as they have done in the instant case.

As far as this submission is concerned, no doubt, as has been held by the Apex Court in the very same case referred to above, a cause of action is a bundle of facts on the basis of which relief is claimed and what I would like to examine is, as to whether the cause of action in the two suits in substance can be said to be identical or not. If the above proposition is applied for the case before us, it cannot be said that the cause of action of both suits are in substance identical because the earlier suit O.S. No. 17/76 was filed praying for a bare injunction, whereas the present suit is a comprehensive suit, in which the plaintiffs have claimed declaration of their right as hereditary archakas of Sri Vinayaka Dev Temple, Idagunji and also to declare that the said right of the plaintiffs include all the emoluments attached to the office of the archakas.

Secondly, the present suit is triggered by the action on the part of the Trustees who terminated the services of the archakas by order dated 21.9.94. In other words, what prompted the plaintiffs to rush to the court in the present suit is the action of the appellants in terminating the services of the archakas. Therefore, the plaintiffs prayed for declaration of their rights which is in the nature of property and also for a declaration that the order of termination is void apart from being contrary to the principles of natural justice and having sought the aforesaid declarations, they also sought consequential relief of injunction. Therefore, the cause of action in the two suits are entirely different not only in form, but mainly even on substance. Hence, by applying the decision referred in the case reported in Suraj Ratan Thirani and Others Vs. The Azamabad Tea Co. and Others, , I have no hesitation to hold that the present suit is not hit by the provisions of Order 9 Rule 9 C.P.C.

That apart, it may also be pertinent to mention, as rightly argued by learned Counsel Sri. Kamath for the respondents, that either before this Court in C.R.P. No. 4708/01 or before the Apex Court in Civil Appeal No. 5641/04 the appellants did not raise any question with regard to the contention now put forward concerning Order 9 Rule 9 C.P.C. Therefore, the contention advanced by the learned Counsel for the appellants in this regard cannot be accepted.

The next ground urged by the learned senior counsel for the appellants is that the suit of the plaintiffs is barred by limitation, particularly having regard to the fact that the appellants in their written statement filed in the earlier suit O.S. No. 17/76 have clearly denied the right claimed by the plaintiffs and therefore if time is reckoned from the date of filing of the earlier suit and the date of filing of the written statement by defendants and denying the claim of the plaintiffs, the present suit is clearly barred by time having regard to Article 58 of the Limitation Act.

No doubt, there is denial by the appellants in the earlier suit as regards the emoluments claimed by the plaintiffs are concerned. In order to take the case out of Article 58 of the Limitation Act, it has to be established that the right to sue accrued to the plaintiffs immediately after the denial by the appellants in the earlier suit. As to when the right accrues, having regard to Article 120 of the Limitation Act 1908 (Article 58 of the 1963 Act), came up for consideration before the Apex Court in the case of C. Mohammed Yunus Vs. Syed Unissa and Others, . It was held in this case, that a suit for declaration of aright and an injunction restraining the defendants from interfering with the exercise of right is governed by Article 120 and under the article there can be no right to sue, until there is an accrual of the right asserted in the suit and infringement or atleast a clear and unequivocal denial. As far as the denial of the appellants in the earlier suit is concerned, no doubt the written statement filed in the earlier suit O.S. No. 17/76 reveals, that the defendants had denied the case of the plaintiffs. But as has been stated in the commentary to the Limitation Act in U.N. Mitra''s Law of Limitation and Prescription 12"'' Edition 2006, in so far as the right to sue under Article 58 is concerned, right to sue accrues when the right in respect of which the declaration is sought is denied or challenged. To afford a cause of action, mere denial will not suffice: it should be accompanied by an overt act. The exact antecedent of the word "first" in Article 58 is that when any act or assertion of the defendant threatened, that gives him a cause of action and it is only a threatened injury which gives a party a cause of action, which means when the defendant actually threatens.

(emphasis by me)

In another decision, the aforesaid principles laid down by the Apex Court reported in C. Mohammed Yunus Vs. Syed Unissa and Others, were also the view expressed by the Apex Court. In yet another decision reported in Mst. Rukhmabai Vs. Lala Laxminarayan and Others, , the Apex Court has held that, whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right.

Applying the aforesaid proposition of laws to the case on hand, the cause of action in the present suit arose following the termination order issued by the Trustees on 21.9.94. It is only when the letter of termination was issued, there was a real threat to the hereditary right of the plaintiffs and as such, they filed the present suit seeking for various declarations as well as for consequential relief of injunction.

Hence, having regard to the facts and circumstances of the case and the nature of relief claimed in the two suits, cause of action in the earlier suit and in the present one, I am of the view that the present suit of the plaintiffs cannot be said to be barred by time.

That apart, it is also relevant to mention that the question of limitation, though can be raised at any stage of proceedings, including the second appeal stage, the appellants did not raise their voice when the first opportunity came before this Court when the C.R.P was filed or later before the Apex Court when the Civil Appeal No. 5641/04 was decided by the Supreme Court. As has been held by the Apex Court, once a suit is found to be barred by time, the court is bound to dismiss the suit and if at all the suit of the plaintiff is barred by time as now contended before this Court, nothing prevented the appellants to take up the stand before this Court in any of the earlier proceedings either in the writ petition 890/06 or in C.R.P. No. 4708/01 or before the Apex Court in Civil Appeal No. 5641/04. As such, for this reason also the contention put forward as regards suit of the plaintiffs being barred by time also does not appeal to me as having any merit in it.

Coming to the crucial point, the submission of the learned senior counsel for the appellants is that, even if the plaintiffs are entitled for a declaration of their hereditary right of archakship, yet the lower appellate court could not have granted the relief of injunction when the trial court had declined to grant the said relief. It was submitted in this regard that the plaintiffs cannot seek for themselves a position higher than a public servant. Referring to the decision reported in 1982 Rajdhani Law Reporter 511, a submission is made that a contract of personal service cannot ordinarily be specifically enforced and a court normally would not give a declaration that the contract subsists and the employee even after having been removed from service cannot be deemed to be in service against: the will and consent of the employer.

Further, it has been held in the aforesaid case that this rule, however, is subject to three well recognised exceptions - (i) where a public servant is sought to be removed from service in contravention of Article 311 of the Constitution of India; (ii) where a worker is sought to be reinstated on being dismissed under the Industrial Law; (iii) where a statutory body acts in breach or violation of the mandatory provisions of the statute. Referring to the aforesaid decision, it is submitted by the learned senior counsel that the contract of service being not falling within any one of the above mentioned exceptions, the ordinary principle of master and servant relationship comes into play and therefore having regard to Section 41(e) of the Specific Relief Act, the lower appellate court could not have granted the injunction against the appellants.

The next decision that is referred to by the learned senior counsel in this connection is in the case of State Bank of India and Ors. v. S.N. Goyal 4243-4244/2004. In the said case it has been held by the Apex Court that where the relationship of master and servant is purely contractual, it is well settled that a contract of personal service is not specifically enforceable, having regard to the bar contained in Section 14 of the Specific Relief Act, 1963 and even if the termination of the contract of employment (by dismissal or otherwise) is found to be illegal or in breach, the remedy of the employee is only to seek damages and not specific performance. The court further held that the courts will neither declare such termination to be a nullity nor declare the contract of employment subsists nor grant the consequential relief of reinstatement and also referred to three well recognized exceptions to the aforesaid rule.

In the aforesaid case, it is further held that there is clear distinction between public employment governed by statutory rules and private employment governed purely by contract. It was also observed that even where the employer is a statutory body, where the relationship is purely governed by contract with no element of statutory governance, the contract of personal service will not be specifically enforceable.

Having regard to the aforesaid law laid down by the Apex Court, the point for consideration is, whether the relationship between Trustees of Sri Vmayaka Dev Temple, Idagunji and the hereditary archakas can be equated on par with that of master and servant relationship.

It is not in dispute that the families of the plaintiffs have been performing the pooja as hereditary archakas from long time which goes back to more than 100 years. It is also not in dispute that there is no appointment order issued at any point of time either to the plaintiffs ancestors or to the plaintiffs. There are no schemes or statutory regulations in operation in governing the relationship between the archakas on the one side and the Trustees on the other. Therefore, it cannot be said that the relationship between the archakas and the trustees is one of a contract of personal service. The trustees came to the scene by virtue of appointment by the District Court. On behalf of the contesting defendant No. 1, DW-2 has admitted in his evidence that no appointment order was issued to any of the ancestors of the plaintiffs family or to the plaintiffs as such. I am also unable to subscribe myself to the argument advanced by the learned senior counsel for the appellants that the plaintiffs being the hereditary archakas, are servants under the control of the trustees.

When there is no order of appointment being issued, it cannot be said that a contract of personal service came into existence between the plaintiffs and the trustees. Furthermore, regard being had to the duties of hereditary archakas, which is basically performing the various poojas according to the Agama shastras to the idol of Sri Vinayaka Dev Temple, Idagunji and the nature of their right, it is not possible to infer from the said nature of duties performed by archakas, that they are rendering personal service to the trustees. No doubt, the case of the parties does not come within any of the three recognized exceptions referred to by the Apex Court in the aforementioned case and also by the Delhi High Court. Still it is impermissible to draw the conclusion that the contract is between two private parties.

If a contract of personal service is entered into between two private parties, in the absence of the said relationship falling within any of the three recognized exceptions, the ordinary principle of master and servant will come into operation. But in the instant case, the parties are not completely private in nature, in as much as, though the plaintiffs claim their hereditary right to archakaship, which right according to them has matured into right of property and though the plaintiffs are claiming a declaration in respect of their personal right which is in the nature of property, yet the defendants cannot fit into the category of private parties because the defendants being the trustees are there by virtue of they being appointed by the District Court. Under the said circumstances, it is not possible to accept the argument that the relationship between the hereditary archakas and that of the trustees is one of a contract of purely personal service between two private parties.

As far as the observations of the trial court that the archakas of Sri Vinayaka Dev Temple, Idagunji are the servants is concerned, the trial court though made an observation to the said effect in the course of its discussion, yet as could be seen from the last para of the operative portion of the judgment of the trial court, it becomes clear that although on the one hand, the trial court declined to grant the relief of permanent injunction to the plaintiffs, but at the same time, it also put an embargo on the defendants by holding that the defendants cannot interfere with the right of the plaintiffs without due process of law. The lower appellate court on the other hand took the view that following the plaintiffs establishing their right as hereditary archakas and they being entitled to emoluments attached to the office, consequential relief of injunction also cannot be denied by the plaintiffs. Apart from the above, there is no specific issue framed by the trial court as regards the master and servant relationship between the trustees and the archakas respectively though finding is given in that regard.

Having thus arrived at the conclusion that the plaintiffs cannot be put on par with that of a servant in an ordinary master servant relationship having regard to the nature of right asserted and claimed by the plaintiffs and also having regard to the absence of any order of appointment ever issued at any point of time to the plaintiffs or to their ancestors, the next aspect to be considered is as to the legality of the termination order issued by the trustees.

The termination order dated 21.9.94 has been produced as per Ex.P1 before the trial court and a plain reading of the contents of the said termination order makes it clear that the trustees passed a resolution as per Ex.D286 on 20.9.94 by which the trustees arrived at a conclusion that the plaintiffs and their children have not been performing the pooja properly despite warning having been given to them and the plaintiffs are disrupting the peaceful atmosphere by their conduct and therefore it has been decided to remove all the archakas and accordingly the order of termination says that the plaintiffs are forthwith removed from their services.

Any one reading the above contents of the order of termination will not arrive at any other conclusion, than the one that, the termination of the services of the plaintiffs is not a termination ''simplicitor'' On the other hand, the termination is for the misconduct committed by the plaintiffs.

It is also not in dispute between the parties and is also clear from the argument advanced before this Court by the learned Counsel for the parties, that though no show cause notice preceded the order of termination, the plaintiffs have not been given any opportunity to put their defence in respect of the allegations contained in the termination order. No enquiry was conducted nor any finding is recorded as to the misconduct alleged against the plaintiffs.

The trial court also found that the alleged misconduct by the plaintiffs, has not been established and the lower appellate court confirmed this view. These admitted facts are sufficient to draw the inference that the termination of the services of the plaintiffs is not only in violation of the principles of natural justice, but at the same time, the trustees had no power whatsoever to terminate the services of the plaintiffs having regard to the fact that the plaintiffs are performing the role of archakas from long time and they being the hereditary archakas with emoluments attached to the said office, the right of the plaintiffs had matured into a right in the nature of property.

In view of the law laid down by the Apex Court in Ram Rattan Pandey''s case to which I made reference earlier and also to the observations in Mayne''s Treatise on Hindu Law & Usage, it becomes clear that the right to the office of a hereditary poojary, where emoluments have been attached to such an office, is a right in the nature of property and such hereditary poojary can only be removed by way of a civil suit and the right to the office in such a case cannot be destroyed without an adjudication by a civil court. In fact the Apex Court had also observed in Ram Rattan Pandey''s case that in view of the peculiar nature of such office which contains in itself both the elements of property and element of duty, superior authorities incharge of the institution have the right to control the trust office by taking action by appropriate legal means.

Under the above circumstances, in the instant case, as the trustees did not take the issue to the civil court by appropriate legal means for the removal of the archakas from performing their duties as archakas of Sri Vinayaka Dev Temple, Idagunji, the termination order passed by the trustees has therefore rightly been held by both the courts below as not only illegal but also as ''void''. Since both the courts below have concurrently recorded a finding that the termination order is void, the necessary consequence of such a declaration will have to follow.

The expression ''void'' also needs to be analysed at this juncture. The Allahabad High Court in the case of Nutan Kumar and others Vs. IInd Additional District Judge, Banda and others, , dealing with the expression ''void'' held, that the appellation ''void'' in relation to a juristic act, means without legal force, effect or consequence, not binding, invalid, null, worthless; cipher, useless, and ineffectual etc., Dealing with the word ''void'', the advanced Law Lexicon, Book 4 (3rd Edition 2007) mentions that the word means null, ineffectual, having no legal force or binding effect, incapable of being enforced by law.

Having regard to the meaning assigned to the word ''void'' in clear terms, in the case on hand as both the courts have held the order of termination as void, the effect is, that the order of termination is of no consequence.

Coming to the contention put forward by the learned senior counsel to the effect that not withstanding the plaintiffs succeeding in getting the relief of declaration as of their right, the lower appellate court could not have granted the injunction as if it is a reinstatement of the plaintiffs into the post of archakas. It is submitted in this regard that the plaintiffs were out of office of archakas from 9.6.94 and therefore the lower appellate court could not have turned the clock back by granting consequential relief of injunction as if by way of reinstatement and such a situation cannot be upheld in law.

As far as this submission is concerned, we will have to keep in view that the present case is not one arising under industrial law where, following dismissal from service, an employee seeks the said dismissal order being set aside and also seeks reinstatement into service. But, on the other hand, we will have to look to the case before us from the perspective of the nature of the suit that is filed by the plaintiffs and the relief sought for by them. As already stated, the suit of the plaintiffs is for declaration of their right as hereditary archakas which right is in the nature of property following emoluments being attached to the office of the hereditary archakship and, therefore, the plaintiffs went to the court and sought for declaration not only as to their right of hereditary archaka but also for declaration that the termination order passed by the trustees is illegal and void.

It is clear from the provisions contained in Section 34 of the Specific Relief Act that in a suit for declaration where the plaintiff is also able to seek a further relief than mere declaration and if he omits to do so, then, no court shall make any such declaration. The Apex Court, while dismissing the civil appeal preferred by the appellants, had stated in express terms that if the plaintiffs are able to establish their claim, then, they will be entitled to the declaration sought. Therefore, once the plaintiffs were able to establish their claim as is evident from the findings recorded by the trial court on issue Nos. 1 and 2 and which findings are confirmed by the lower appellate court, they are entitled for the declaration of their rights.

But, it does not stop with the rights of the plaintiffs being declared. On the other hand, the very nature of the relief sought by the plaintiffs at Clause (a) of paragraph-22 of the plaint makes it clear that the declaration sought is not only as regards the right of the plaintiffs being in the nature of property, but also to entitle the plaintiffs to perform at the altar end of the temple various poojas and also to act as purohits for the devotees and for performing various sevas fetching them the emoluments mentioned in the said prayer at 22(a). Likewise, in clause (b) of paragraph-22, the plaintiffs have also sought a declaration to the effect that the defendants have no right to terminate the archakas of their upadhi rights and further, a declaration was also sought to the effect that the order of termination is illegal and void.

Once the courts below have upheld the claim of the plaintiffs and held that they are entitled to the declaration as sought by them, it goes without saying that from the very nature of the declaration sought by the plaintiffs, they are also entitled for the consequential relief. Mere declaration of title of the plaintiffs as sought by them will not be effective in ensuring that the plaintiffs are able to perform their duties pursuant to the declaration granted in their favour, unless they also seek the consequential relief which will go to make the other prayers for declaration, effective in pith and substance.

As rightly submitted by the learned Counsel for the respondents, mere declaration of the right of the plaintiffs as prayed for by them in Clauses (a) and (b) will not be of any consequence unless the said relief is also combined with the relief of injunction sought for by them. In my view, otherwise, the effect of granting the declaration as prayed for by the plaintiffs will be rendered redundant inasmuch as the situation can be compared to the popular saying, "operation successful, but patient died".

Therefore, having regard to the provisions contained in Section 34 of the Specific Relief Act and in particular the proviso to the said section making it incumbent on the part of the person seeking declaration also to seek the further relief of injunction, I hold that, once the courts below grants the relief of declaration of the rights of the plaintiff, the consequential relief of injunction, will necessarily have to follow, as the "night follows the day".

Apart from this, it is also useful to refer to a decision of the Patna High Court in the case of Union of India (UOI) Vs. Bhuneshwar Prasad, . Dealing with a case where a railway employee was removed from service and the said employee filing a suit for declaration that the order of removing him from service was illegal and for permanent injunction, the Patna High Court observed that if the employee was entitled to ask for a declaration that the order of removal was unconstitutional and illegal, he was equally entitled to make a prayer for injunction from removing him from service during pendency of the suit.

In the instant case, having regard to the aforesaid decision of the Patna High Court, the plaintiffs have succeeded in establishing their right as claimed by them, following the trial court accepting their claim and granting the declaratory relief as prayed for by them in their plaint at paragraph-22(a) and (b). Therefore, the relief of injunction, which relief is in the form of further relief, has to necessarily follow and the lower appellate court, just did that rectification in the judgment of the trial court, by granting the relief of injunction as well.

I also deem it necessary at this point of discussion to refer to the comments offered by the learned author G.S. Gupta in his book "Law of Injunctions" (5th Edition- Reprint 2000) and at page 424, dealing with the heading "Employer and employee and injunction" this is what the learned author says, "The doctrine that a contract of personal service cannot be specifically enforced would not stand in the way of the employee, because the termination being null and void, there being no repudiation at all in the eye of law, there would be no question of enforcing specific performance of the contract of employment. What the employee would be claiming in such a case is not enforcement of a contract of personal service but declaration of statutory invalidity of an act done by the employer. Where the termination is outside the powers of statutory body either because the statutory body has no power to terminate the employment or because the termination is effected in breach of mandatory obligation imposed by law which prescribes that the termination shall be effected only in a particular manner and no other, it would be a nullity and the employee would be entitled to ignore it and ask for being treated as still in service and for an injunction.

(emphasis by me)

The case on hand is not one of a wrongful dismissal of the plaintiffs by the trustees but, having regard to the facts and circumstances of the case, the trustees themselves had no power to terminate the right of the hereditary archakas, without taking appropriate steps through legal means, in other words, without having recourse to the civil court in this regard. Such being the case on hand, there is nothing wrong in the plaintiffs seeking the relief of injunction which is the consequential relief sought in a suit filed for declaration of right and, as such, the lower appellate court has not committed any error in granting the injunction as prayed for by the plaintiffs.

One other aspect to be mentioned at this juncture in respect of the point under consideration is that this Court, while disposing of the C.R.P., has observed at paragraph-27 of its judgment that the civil court had jurisdiction not only to entertain the suit, but also to grant injunction. No doubt, as rightly submitted by the learned senior counsel for the appellants, the question before the court in the C.R.P. was in respect of the findings on the preliminary issues and, as such, though there is some force in the submission made by the learned senior counsel that the observations, which are unconnected with the main issue in question, need not be given much importance and what is binding is the ratio decidendi.

Therefore, as has been held by the Apex Court in the case of State of Orissa and Others Vs. Md. Illiyas, , a ruling cited by the learned senior counsel, a decision is an authority for what it actually decides and not every observation found therein nor what logically flows from various observations made in the judgment are to be given any importance and every judgment must be read as applicable to the particular facts proved or assumed to be proved, in the case on hand, having regard to the aforesaid law laid down by the Apex Court, though before this Court in the C.R.P., the issue concerning the plaintiffs being entitled to seek injunction was not directly involved, while dealing with the preliminary issues, yet, one fact which cannot be lost sight of, is that the Apex Court, while dismissing the Civil Appeal preferred by the appellants herein, observed that no interference is called for with regard to the judgment under appeal. In other words, the Apex Court upheld the judgment of this Court in the C.R.P. in its entirety.

As far as the contention put forward with regard to the relief of damages being awarded by the courts below and not the relief of injunction is concerned, having regard to the nature of the rights asserted and claimed by the plaintiffs and also having regard to the nature of the relief sought for by them in the prayer column of their plaint at paragraph-22(a) and (b), it is not a case where it can be said that the damages can be quantified easily by the court as in the case of a person employed on a specified salary, per month with no other additional perquisites or emoluments.

On the other hand, the nature of the right claimed by the plaintiffs and the various emoluments that go along the right of hereditary archakship makes it impossible for the court to quantify the damages in pecuniary terms. Even from this angle also, the relief of injunction granted by the lower appellate court will have to be upheld as sustainable in law in the face of the facts and circumstances of this case.

Having thus considered all the contentions urged by the learned senior counsel for the appellants, I now turn to the substantial question of law raised by this Court while admitting these appeals. The only question that was raised for consideration is with regard to non-compliance of the provisions of Order 41 Rule 31 of the C.P.C. by the lower appellate court. As far as this aspect of the matter is concerned, the said Rule 31 of Order 41 of the C.P.C. dealing with the contents, date and signature of the judgment, provides that the judgment of the appellate court shall be in writing and shall state the point for determination, the decision thereon, the reasoning for the decision and whether the decree appealed from, is reversed or varied, the relief to which the appellant is entitled.

In the instant case, the judgment of the lower appellate court, no doubt, does not indicate that the learned judge had formulated various points for determination. Nevertheless, the lower appellate court did formulate one point for consideration and that is, "Whether the judgment and decree passed by the learned Civil Judge (Sr.Dn.), Honnavara, in O.S. No. 10/2001 dated 30.9.2006 is justified under law?". In other words, instead of mentioning each one of the points for determination, the lower appellate court combined all the points and put it in an omnibus fashion by framing the aforesaid point for consideration.

At the same time, on carefully going through the judgment of the lower appellate court which incidentally runs to as many as 246 pages, the learned judge of the lower appellate court has dealt with all the issues and, therefore, merely because the learned judge did not take pains to mention the points for consideration in chronological order, that does not mean that the learned judge has not applied his mind in respect of each one of the issues framed by the trial court and the findings given by the trial court on those issues. In this connection, I also would like to refer to a decision of the Apex Court in the case of G. Amalorpavam and Others Vs. R.C. Diocese of Madurai and Others, .

In the said case, the Apex Court dealt with Order 41 Rule 31 of the C.P.C. and having regard to the question of law framed by the High Court in second appeal, which question is identical to the question of law framed by this Court in these appeals, has held that the question whether in a particular case, there has been substantial compliance to the provisions of Order 41 rule 31 C.P.C. has to be determined on the nature of the judgment delivered in each case and went on to observe that non-compliance with the provisions may not vitiate the judgment and make it wholly void and may be ignored if there has been substantial compliance with it, if the second appellate court is in a position to ascertain the findings of the lower appellate court.

In the instant case, by applying the aforesaid proposition of law, it can be said without any fear of contradiction that the lower appellate court has considered all the issues framed by the trial court and the findings thereon and dealt with each of the issues and the reasons given by the learned trial judge and went on to confirm the judgment of the trial court and also disagreed with the trial court insofar as the question relating to the Niyamavalis are concerned and held that the plaintiffs are entitled to the relief of injunction as well following the declaratory relief granted to them. The learned judge of the lower appellate court has considered each one of the issues as could be seen from the very long judgment rendered by him. Therefore, I am of the view that there is substantial compliance of the requirement of Order 41 Rule 31 of the C.P.C. and accordingly, the question of the judgment of the lower appellate court being vitiated for non-compliance of the aforesaid Order 41 Rule 31 of the C.P.C. does not arise. ,

One other aspect which will have to be dealt is with regard to the contention put forward concerning the superannuation age of some of the plaintiffs. The learned senior counsel inviting my attention to Rule 6 of the Karnataka Rules 2002, submitted that the age of superannuation of the archakas is 65 years and, therefore, in the instant case, as some of the plaintiffs are over the age of 70 years, the relief of injunction granted, therefore, will be against the statutory provisions of law. The counter arguments of the learned Counsel for the respondents have already been mentioned by me at the beginning of this judgment while dealing with the reply arguments advanced by him and, therefore, the only question is as to the effect of the consequential relief granted by the lower appellate court vis-a-vis the provisions contained in Rule 6 of the Karnataka Rules 2002.

In this regard, what has to be borne in mind is that, it is not the plaintiffs alone who claim their individual right as hereditary archakas of Shri Vinayakadeva Temple and for declaration of their rights but it is the consistent claim of the plaintiffs that their families have been performing the duties of the hereditary archakas of Shri Vinayakadeva Temple from time immemorial and, therefore, the relief granted by the lower appellate court will enure to the benefit of the families of the plaintiffs and in that sense, no error can be found in the order of injunction granted by the lower appellate court.

As rightly submitted by the learned Counsel for the respondents, if some of the plaintiffs are above the age of 65 years, which is the cut off age for superannuation under the Rules, 2002, it does not mean that the successors of those plaintiffs also are deprived of the hereditary right of archakship. I do find enough substance in the submission made by the learned Counsel for the respondents and, therefore, the relief granted by the lower appellate court by way of injunction cannot be construed as against the statute or the Rules, 2002 insofar as it is applicable to the families of the plaintiffs and to those who are within the age of 65 years.

Though the learned Counsel for both sides had argued at great length and had cited numerous decisions in support of their respective contentions, I have already referred to many of them which have a bearing on the nature of the contentions advanced by the learned senior counsel for the appellants. As far as the decisions which have not been specifically referred to in the judgment are concerned, in my view, they will not in any way affect the outcome of these appeals inasmuch as all the main contentions put forward by the learned senior counsel for the appellants and the rulings cited in that regard have been considered and, as such, it is not necessary for me to refer to the other rulings which will not in any way alter the conclusion that is reached as above.

For the foregoing reasons, these appeals fail and accordingly they are dismissed.

At this stage, the learned senior counsel for the appellants submitted that he be granted certificate to approach the Apex Court as the decision rendered by this Court in the instant case is first of its kind involving the hereditary rights of archakas and, therefore, it is a fit case to grant certificate having regard to Article 134-A of the Constitution of India.

The above submission is repelled by the learned Counsel for the respondents by contending that this Court has not laid any decision touching on the questions involved herein for the first time but, on the other hand, this Court has only followed the law laid down by the Apex Court in number of cases right from the year 1950 onwards and, as such, no substantial question of law of general importance is involved in these cases for granting the certificate as prayed for by the learned senior counsel for the appellants.

Having heard the submissions as above by the learned Counsel for the parties, I am of the view that no case is made out for grant of certificate to appeal to the Apex Court as, in my view, no substantial question of law of general importance is involved in this case inasmuch as I have referred in the course of my judgment to the decision of the Apex Court in the case of Raj Kali Kuer Vs. Ram Rattan Pandey, , wherein the Apex Court has held that the right of hereditary archaka or poojari in a temple also amounts to property where emoluments are attached to such an office and the right to such office cannot be destroyed without an adjudication by a civil court.

Apart from the above proposition of law laid by the Apex Court, I have also referred to the comments of learned author Mayne in his classic "Hindu Law & Usage", wherein the very same view is also held by the learned author following the law laid down by the Apex Court. As such, I do not see any substantial question of law of general importance or the decision that has been rendered being the first of its kind, in respect of the nature of hereditary archakship is concerned. Therefore, the permission sought for certificate is accordingly refused.

The learned senior counsel for the appellants has made yet another prayer i.e., to stay the operation of this judgment for a period of ten days till the appellants are able to secure a copy of this judgment as some time would be consumed in delivering a copy of the judgment to the parties.

For this prayer of the learned senior counsel for the appellants, the reply given by the learned Counsel for the respondents, is that, when the appeals have been dismissed by this Court and secondly, when this Court has also opined that there is no substantial question of law of general importance involved and has refused to grant the certificate, there is no question of granting stay of the operation of this judgment and furthermore, there is also no provision in law to grant stay of operation of a judgment, dismissing the appeals filed by the appellants.

As far as this request made by the learned senior counsel is concerned, as this Court has dismissed the appeals and thereby has confirmed the judgment of the lower appellate court in its entirety, the question of staying the operation of the judgment does not arise. Moreover, the relief of injunction was granted by the lower appellate court and this Court only confirmed the said judgment of the lower appellate court by dismissing the present appeals.

Under the said circumstances, merely because some time will be consumed in obtaining the copy of the judgment, that itself cannot be made a ground for seeking stay of the operation of the judgment of this Court. Accordingly, the second prayer made also cannot be considered in favour of the appellants.