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Madhya Pradesh High Court · body

2011 DIGILAW 1149 (MP)

Gajendrarao v. Murti Shri Ganpati Ji Maharaj

2011-10-01

A.K.SHRIVASTAVA

body2011
JUDGMENT 1. This second appeal has been filed by the L.Rs. of first defendant Narayan Rao assailing the judgment and decree passed by the two Courts below. 2. More than 43 years ago on 17.7.1968, a suit for declaration of ownership of the house in question, the description whereof is mentioned in the plaint and which is the subject matter of the suit, was filed by deity Shri Ganpati Ji Maharaj installed in Shri Ganpati Mandir Nathu Shinde, Darjee Oli Gwalior through Ganpat Rao and a declaratory decree has been sought to declare plaintiff as the sole owner of the suit property with a consequential relief that the possession of the said property be also delivered to plaintiff from the defendants and further a decree of injunction be passed against them that they should not interfer in the possession of plaintiff. The present suit has been filed by deity Shri Ganpati Ji Maharaj through one Ganpat Rao who is now dead and whose L.Rs. are respondents 3 and 4 (i) to (vi). The suit was originally filed against two defendants, namely Narayan Rao and Ramchandra Rao. During the pendency of the suit first defendant Narayan Rao had died and his L.Rs. were brought on record of the Trial Court. During the pendency of this second appeal, second defendant Ramchandra Rao has also died and his L.Rs. have been brought on record. 3. Briefly stated the suit of the plaintiff is that near about in Samvat 1918 (corresponding year 1861) one Nathu Shinde, who was the predecessor of the parties, installed an idol of Shri Ganpati Ji Maharaj in his house, and thereafter prayed in the Huzoor Darbar of erstwhile Gwalior State to sanction the Nemnook (cash grant) in his favour and further requested to mutate his name in the Muafi register of Gwalior State. Thereafter, religious programmes were started in the said temple and on being invited by Nathu Shinde, public at large also started coming in the temple and also started to participate in the religious functions. The Seva and Puja of the temple was being performed by Nathu Shinde himself and his heirs. Said Nathu Shinde expired in Samvat 1940 (corresponding year 1883) and in his place, the names of his sons Ramrao and Krishnarao were mutated in the Muafi department of Gwalior State. 4. The Seva and Puja of the temple was being performed by Nathu Shinde himself and his heirs. Said Nathu Shinde expired in Samvat 1940 (corresponding year 1883) and in his place, the names of his sons Ramrao and Krishnarao were mutated in the Muafi department of Gwalior State. 4. It is the further case of plaintiff that after the death of Ramrao in Samvat 1948 (corresponding year 1891) only the name of Krishnarao Shinde was continued in the Muafi department and name of Ramrao Shinde on account of his death was deleted. The said Krishnarao also died on 23.4.1921 and in place of his name, name of his adopted son Ganpat Rao (plaintiff) was mutated and because he was minor at that time, therefore, his name was mutated under the guardianship of Anand Rao Shinde and since then plaintiff is possessing the temple of Shri Ganjesh Ji Maharaj as owner and is also performing Puja etc. He is also looking after the management of the temple of Muafi department given to his ancestors and is also obtaining the Nemnook (cash grant). Since plaintiff is in service at Sheopur and is residing there, therefore, during the holidays, he used to come to look after the temple affairs. The defendants (Narayan Rao Ramchandra Rao) somewhere in the year 1960 focibly entered in the temple and started living there. Repeatedly it was insisted to them by Ganpati Rao to vacate the temple, but they did not agree and continued to possess the suit property. Ultimately, Ganpat Rao submitted a complaint before Commissioner Gwalior Division Muafi Section, on which the Commissioner directed Collector to evict the defendants and who directed Sub Divisional Officer to get the defendants evicted from the temple. Resultantly, on 13.9.1963 through police Station Madhoganj second defendant and the tenants inducted by him were evicted and thereafter the locks were inserted in the premises. Again thereafter on 29.3.1967 second defendant by breaking the lock, entered inside the temple (suit premises) and had taken over the possession of upper floor of the temple and first defendant is also illegally possessing the temple and are denying the ownership of plaintiff Ganpat Rao. 5. It is the further case of plaintiff that both the defendants are creating nuisance and are causing damage to the temple. They are also throwing rubbish, excreta etc. 5. It is the further case of plaintiff that both the defendants are creating nuisance and are causing damage to the temple. They are also throwing rubbish, excreta etc. in the Chowk of the temple and are flowing dirty and rubbish water at the entrance of the temple. The act of the defendants is crossing the limit of Hindu religion and they are possessing the temple illegally. The plaintiff is entitled to the mesne profit at the rate of Rs. 50/- per month. 6. In para 12 of the plaint, it has been pleaded that again plaintiff made complaint to the Collector and Commissioner about the notorious act of the defendants, but this time Commissioner, Gwalior Division Muafi Section, directed the plaintiff to file civil suit and hence present suit has been filed by the plaintiff seeking declaration that it be declared that plaintiff is the sole owner of the suit property with further reliefs that possession of the suit property be delivered to him and by issuing a decree of injunction, defendants be restrained from interfering in the possession of the plaintiff. 7. Both the defendants filed their separate written statement and denied the plaint averments. First defendant Narayan Rao in his written statement admitted that Nathu Singh installed the diety of Shri Ganpat Ji Maharaj and thereafter made request to Huzoor Darbar of Gwalior State for providing Nemnook (cash grant) and this fact has also not been denied by second defendnat in his written statement. According to the first defendant Narayan Rao, Puja (worship) was being performed solely by Nathu Shinde is incorrect because it was being performed by the Pujari. Further, it has been pleaded by him that Nathu Shinde was having three sons Ramrao, Krishnarao, and Anandrao. After the death of Nathu Shinde, the names of his three sons were mutated in the Muafi Department of Gwalior State and thereafter these three sons of Nathus Shinde became owner of the temple and were possessing it. Further case of first defendant in his written statement is that Ganpat (who filed the suit on behalf of the deity) is the adopted son of Krishnarao is incorrect. Indeed, he is real brother of defendants and is the nephew of Krishnarao. Further case of first defendant in his written statement is that Ganpat (who filed the suit on behalf of the deity) is the adopted son of Krishnarao is incorrect. Indeed, he is real brother of defendants and is the nephew of Krishnarao. Because Ganpat is the eldest son of Anandrao and is the elder brother of defendants, therefore, as per the law which was prevailing in the then Gwalior State i.e. Quawayad Muafidaran Jujbe Arazi Wa Nakdi, Samvat 1991 (in short Quawayad Muafidaran), his name was mutated in the record. Hence, the pleading of plaintiff that Ganpatrao is the sole owner of the temple is not correct and indeed defendants are also owner of the suit property having possession and they are also looking after the management of the temple. The other averments made in the plaint were also denied. 8. Almost same written Statement has been filed by second defendant Ramchandrarao. Inter alia in special plea he has pleaded that the entire house is ancestral and in one room the idol has been installed. The predecessors of defendants were also residing in the same house and the defendants have also born in the said house. It has been also pleaded by him that residential portion of the house is nothing to do with the temple. The factum that Ganpat went in adoption of Krishnarao has also been emphatically denied by this defendant also. Further it has been pleaded by him that plaintiff Ganpat is taking undue advantage of his position being elder brother. Thus, in this manner, both the defendants have refuted the plaintiff’s claim. 9. The learned trial Court framed following issues and additional issues, which are translated in English, they are :-- (i) Whether plaintiff Ganpatrao is the owner of Murti Shri Ganpat Ji Maharaj and is a Pujari? (ii) Whether defendants have illegally encroached upon the disputed temple? If yes, its effect? (iii) Whether the defendants used to throw rubbish water on the main door of the temple and thereby create nuisance? (iv) Whether the suit has been less valued and insufficient court fee has been paid? (v) Whether the Court is not having jurisdiction? (vi) Whether Ganpat Rao is the adopted son of Krishna Rao? (vii) Relief and costs? Additional Issues (ia) Whether plaintiff is a public turst? (ib) If yer, whether the trust is required to be registered? (iv) Whether the suit has been less valued and insufficient court fee has been paid? (v) Whether the Court is not having jurisdiction? (vi) Whether Ganpat Rao is the adopted son of Krishna Rao? (vii) Relief and costs? Additional Issues (ia) Whether plaintiff is a public turst? (ib) If yer, whether the trust is required to be registered? (ic) Whether the suit is time barred? (id) Whether plaintiff is entitled to obtain mesne profit at the rate of Rs. 50/- per month. The parties thereafter led their evidence and after a full trial, learned Trial Court answered the aforesaid issues as under :- (i) The plaintiff is the owner and Pujari of deity Shri Ganpati Ji Maharaj; (ii) the defendants have not encroached upon the temple illegally; (iii) the defendants are throwing rubbish water on the main door of the temple and thereby creating nuisance, is not proved; (iv) the suit has been correctly valued and proper court fee has been paid; (v) the Court is having jurisdiction to decide the suit; (vi) Ganpatrao is not the adopted son of Krishnarao; (vii) the plaintiff is not a public trust; (viii) the registration of the trust is not necessary; (ix) the suit is not time barred; and (x) the plaintiff is not entitled for mesne profit. Thus, learned trial Court partly decreed the suit of the plaintiff by holding that the suit temple is a private property and plaintiff is the owner and Pujari of the said temple having possession over it and he is entitled for a decree of declaration in that regard; the defendants are restrained from interfering in the plaintiff’s possession; the defendants are not the encroachers upon the residential portion, on the contrary they are residing there from their birth and they are having right to reside in it, and therefore, the question to dispossess them from residential portion does not arise. The suit of the plaintiff in this regard is dismissed and plaintiff is also not entitled for mesne profit. Creating nuisance by the defendants on the main door of temple by throwing dirty and rubbish water is not proved and suit is dismissed in this regard. The parties were directed to bear their own costs. 10. Against the aforesaid judgment and decree passed by the trial Court, three different appeals were filed by the parties. The L.Rs. Creating nuisance by the defendants on the main door of temple by throwing dirty and rubbish water is not proved and suit is dismissed in this regard. The parties were directed to bear their own costs. 10. Against the aforesaid judgment and decree passed by the trial Court, three different appeals were filed by the parties. The L.Rs. of first defendant Narayanrao filed first appeal No. 21-A/98, second defendant Ramchandrarao preferred first appeal No. 67-A/98 while plaintiff filed first appeal bearing No. 68-A/98. Since these three appeals were filed against the common judgment and decree of trial Court, the learned First Appellate Court by passing a common judgment, decided all the appeals. 11. In this manner, the L.Rs. of first defendant Narayanrao have filed this second appeal. During the pendency of this second appeal second defendant Ramchandrarao, who was arrayed as respondents No. 5, had died and his L.Rs. have been brought on record. 12. This Court on 11.12.2000 admitted the appeal on the following substantial questions of law :- “(i) Whether the right of Sewa and Pooja of the deity can be conferred exclusively on the plaintiff? (ii) Whether the plaintiff can be declared to be the exclusive owner of the temple part of the property?” 13. The contention of Shri Gupta, learned Senior advocate for the appellants, is that looking to the evidence placed on record as well as pleadings to the parties, it is luminously clear like a noon day that original owner of the entire house was one Nathu Shinde who installed the idol of Shri Ganpati Ji Maharaj in a room and thereafter requested to the then Ruler (Huzoor Darbar) for the grant of Nemnook (cash grant) so that care of the temple may be properly made, but the house was of Nathu Shinde only. Hence, the plaintiff and defendants are having joint right to own and possess the entire house including the temple because only a cash grant (Nemnook) is in dispute and not the house. Hence, the plaintiff and defendants are having joint right to own and possess the entire house including the temple because only a cash grant (Nemnook) is in dispute and not the house. Learned Senior counsel further submits that because the defendants are coparceners, therefore, they are having right to enjoy the entire house including the room (temple) in which the idol of Shri Ganpati Ji Maharaj has been installed and because Ganpatrao (through whom suit has been filed) and defendants are the sons of Anandrao and further because Seva and Puja was being performed originally by Nathu Shinde and after his death his three sons Ramrao, Krishnarao and Anandrao were performing the Puja and Seva and after their death the defendants are performing the Puja and Seva of the deity, they are also having right to offer Puja and Seva in the temple. 14. It has been submitted by learned Senior counsel that Ganpatrao who had filed the suit on behalf of the deity was in service throughout and was posted at Sheopur, and therefore, it cannot be said that he was offering Puja and Seva to the temple. Learned Senior counsel by inviting my attention to sections 12, 16 and 33 of the Quawayad Muafidaran, has submitted that under this law how and in what manner the Nemnook (cash grant) will be granted for the deity is explained and further it has been enacted that the Nemnook will be accordingly endorsed in the relevant record. It is further submitted by him that in case if the Nemnook (cash grant) is stopped on account of defaulting clause mentioned in the Qawayad Muafidaran, the ownership right of the premises (house, etc.) would remain intact with the same person who was obtaining Nemnook. Hence, it has been put forth by learned Senior counsel that even if Nemnook was granted to Nathu Shinde (ancestor of the parties) at the most, plaintiff Ganpat is entitled only for Nemnook, but he is not having any right to file a suit declaring himself to be the sole and exclusive owner of the suit property excluding the right of defendants and further he cannot obtain any injunction against the coparcener. 15. 15. By inviting my attention to Single Bench decision of this Court Mangidas v. State of M.P., 2009 RN 208 , it has been submitted by learned Senior counsel that right of Puja is heritable right and it cannot be taken away by any person. 16. Learned Senior counsel further submits that averment of Ganpat, who filed the suit on behalf of the diety, that he is the adopted son of Krishnarao has not been found to be proved by learned two Courts below and this finding is a pure finding of fact which cannot be interfered with in this second appeal, and therefore, it has been put forth by learned Senior counsel that since the parties are coparceners, the suit property is jointly owned and possessed by them, therefore, neither Ganpatrao can be said to be the sole owner of the temple, nor by a decree of injunction, the defendants can be restrained from entering in the temple because present suit is not a suit for partition or case of the plaintiff is not that earlier partition took place in the family in which the suit property fell in the share of Ganpatrao. On these premised submissions, it has been put forth by learned Senior counsel that by allowing this appeal, the suit be dismissed. 17. On the other hand, Shri Bhardwaj, learned Senior counsel, for the L.Rs. of plaintiff argued in support of the impugned judgment and submitted that present appellants have not impleaded Umadevi daughter of Ganpatrao as party in this appeal and in the first Appellate Court also, she was not impleaded as respondent in the appeal filed by L.Rs. of first defendant Narain Rao, and therefore, the decree passed in her favour has attained finality, and therefore, this appeal be dismissed for non-impleading necessary party. In support of his contention, learned Senior counsel placed heavy reliance on the decision of Supreme Court Ch. Surat Singh (dead) and others v. Manohar Lal and others, AIR 1971 SC 240 . 18. On merits, learned Senior counsel has invited my attention to Ex. In support of his contention, learned Senior counsel placed heavy reliance on the decision of Supreme Court Ch. Surat Singh (dead) and others v. Manohar Lal and others, AIR 1971 SC 240 . 18. On merits, learned Senior counsel has invited my attention to Ex. P/2 which is a memo (order) dated 19.7.71 of Commissioner Gwalior Division, Gwalior and submitted that after the death of Ganpatraoi, Nemnook (cash grant) has been ordered to be given to his eldest son Krishan Rao Shinde and it was ordered that name of Kishan Rao Shinde be mutated and the Nemnook be paid to him. Hence, it has been prayed that earlier the cash grant was being paid to Ganpatrao and after his death the same was ordered to be given to his son Kishan Rao. Learned Senior counsel for the respondents has also invited my attention to order dated 13.9.1963 (Ex. P/3) of Collector Gwalior and submitted that by this order it was directed to remove the possession of second defendant Ramchandrarao and the tanents inducted by him which was pronounced by Deputy Collector on behalf of the Collector. Learned Senior counsel has also invited my attention to Ex. D/4 and Ex. D/5 and submitted that these documents also indicate that the suit temple is in the ownership of Ganpatrao because in the relevant record the name of Ganpatrao has been entered as owner of the property. In the document Ex. D/5 the name of said Ganpatrao has been endorsed as Pujari, and therefore, there remains no dobut that the owner of the temple is Ganpatrao only. By-inviting my attention to the document Ex. D/1, it has been contended that the suit property is owned by Ganpatrao, this fact is so mentioned in the said document, and therefore, learned two Courts below rightly found that owner of the temple is Ganpatrao. 19. Learned Senior counsel has also submitted that cross-objections have been filed on behalf of L.Rs. of plaintiff praying to deliver the possession of the portion which is being possessed by the defendants illegally because the entire house in which the temple is situated is of Ganpatrao. Hence, it has been prayed that by dismissing this appeal, the cross-objections filed by L. Rs. of plaintiff Ganpatrao be allowed. 20. of plaintiff praying to deliver the possession of the portion which is being possessed by the defendants illegally because the entire house in which the temple is situated is of Ganpatrao. Hence, it has been prayed that by dismissing this appeal, the cross-objections filed by L. Rs. of plaintiff Ganpatrao be allowed. 20. In reply, it has been put forth by learned Senior counsel for the appellants that all the documents which are on record only speaks about the cash grant (Nemnook) and not of the title, and therefore, the documents which are on record are not helpful to the plaintiff for the simple reason that the house is ancestral and because the partition has not yet taken place, each coparcener is having equal right to occupy and possess the suit house including the temple as owner, therefore, the cross-objections of L.Rs. of plaintiff stand nowhere and they be dismissed. 21. So far as the objection of learned Senior counsel for the respondents regarding anomaly of non-impleading of parties is concerned, learned senior counsel for the appellants submits that on raising such a plea of not impleading Uma Devi daughter of Ganpatrao as party, an application (I.A.No. 1911/08) has been filed to implead her L.Rs. as party in this Court. Further, it has been put forth by him that the estate of Ganpatrao is duly represented by other co-plaintiffs who are already on record and further the case of Ganpatrao in the trial Court was that he acquired the right in that disputed property on the right of primogeniture. After his death, the right was devolved only on the eldest son of Ganpatrao and not upon the other L.Rs. The eldest son of Ganpatrao, namely Kishanrao is already on record and on the basis of primogeniture only he is entitled to succeed to Ganpatrao, and therefore, it was not necessary for the appellants to implead Uma Devi daughter of Ganpatrao as party, but to meet out the objection raised by the respondents, I.A.No. 1911/08 has been filed to implead the L.Rs. of Uma Devi as respondents. of Uma Devi as respondents. Learned Senior counsel has invited my attention to the latest pronouncement of the Supreme Court N Padm,amma and others v. S. Ramkrishna Reddy and others, (2008) 15 SCC 517 and has contended that law of primogeniture is now not legally applicable in India because the same has been held to be unconstitutional being violative to Article 14 of the Constitution of India. 22. It has been put forth by learned Senior counsel that three appeals were filed in the First Appellate Court; one by appellants and another by plaintiffs and third by co-defendant and in the appeal filed by the plaintiffs, Umadevi daughter of Ganpatrao was impleaded as party and her heirs were brought on record. By mistake she could not be impleaded as respondent in the appeal filed by the L.Rs. of first defendant. In these facts and circumstances, this appeal cannot be thrown out on account of non-impleading Umadevi daughter of Ganpatrao as party because she is one of the appellant in an appeal filed by L.Rs. of Ganpat Rao. In support of his contention, learned Senior counsel placed heavy reliance on two decisions of Supreme Court, they are Dolai Maliko and others v. Krushna Chandra Patnaik and others, AIR 1967 SC 49 and N. Jayaram Reddi and another v. The Revenue Divisional Officer and Land Acquisition Officer, Kurnool, AIR 1979 SC 1393 . 23. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be allowed. 24. Before answering the substantial questions of law, I would like to deal the objection raised about maintainability of the appeal by learned Senior counsel for the respondents. No doubt it is true that after the death of original plaintiff Ganpatrao, his L.Rs. were brought on record and plaintiff No. 6 was Smt. Umadavi who was his daughter and was married to Ramesh Yadav. Against the judgment and decree partly decreeing the suit and partly dismissing it, L.Rs. of plaintiff also filed first appeal before learned first Appellate Court which was registered as civil appeal No. 68-A/98 and because she was one of the appellant in the cross-appeal, even if she could not be impleaded as respondents in the first appeal filed by the appellants and her L.Rs. could not be brought in this second appeal, it cannot be held that first and second appeals are not maintainable. could not be brought in this second appeal, it cannot be held that first and second appeals are not maintainable. Undoubtedly, the other L.Rs. of deceased Ganpatrao are already on record, therefore, his estate is fully represented and evein if one of the L.Rs. is not impleaded in the first appeal filed by the present appellants, it will not jeopardize their case and it cannot be said that the first appeal filed by them was not maintainable. For the same reason, it cannot be said that this second appeal is not maintainable. If cross-appeals are filed against a common judgment and decree and in one cross-appeal one of the L.Rs. is already on record,the other cross-appeals will never be abated. In this context, rightly reliance has been placed by learned Senior counsel for the appellants on the decisions of Supreme Court N. Jayaram Reddi (supra). Apart from this, admittedly the other L.Rs. of deceased Ganpatrao are already on record and if that would be the position, according to me, since the estate of deceased Ganpatrao is fully representated, if for some reason his one daughter Umadevi was not impleaded as one of the respondents in the first appeal filed by the present appellants, it cannot be said that judgment and decree passed by learned Trial Court in her favour has attained finality against said Umadevi, and therefore, the first appeal was maintainble and this second appeal is also maintainable. The decision of Supreme Court Ch. Surat Singh (supra) placed reliance by learned Senior counsel for respondents is not applicable in the facts and circumstances of the case because the situation in that case was altogether different. Hence, this objection of learned Senior counsel for the respondents that first appeal was not maintainable and for the same reason this second appeal is not maintainable, is hereby rejected. Regarding Substantial Questionof Law No. (II) : 25. On bare perusal of the plaint, it is gathered that suit has been filed ny Murti Shri Ganpati Ji Maharaj which is installed in Ganpati Mandir of Nathu Shinde through Ganpatrao. Regarding Substantial Questionof Law No. (II) : 25. On bare perusal of the plaint, it is gathered that suit has been filed ny Murti Shri Ganpati Ji Maharaj which is installed in Ganpati Mandir of Nathu Shinde through Ganpatrao. On bare perusal of plaint para 2, this Court finds that plain and simple case of the plaintiff is that near about in Samvat 1918 (corresponding year 1861) Nathu Shinde installed the idol of Shri Ganpati Ji Maharaj in his house and thereafter requested the Huzoor Darbar of Gwalior State to provide cash grant (Nemnook) in favour of Nathu Shinde which was ultimately granted and necessary endorsement was made in the record of Muafi Register. Nowhere the suit of the plaintiff is that the house in question (in one room of which idol of Ganpati Jui Maharaj has been installed) is of plaintiff Ganpatrao. On the othe hand, it transpires from plaint para 2 onwards and on the basis of pleadings placed on record as well as from the findings recorded by learned Trial Court from para 7 onwards where issue No. 2 (whether the defendants are illegally possessing the temple) has been decided and particularly from para 8 onwards it is gathered that the trial Court has specifically held that the place where the idol has been installed and the other portion of the house are two distinct things. The entire house in question, in one room of which idol has been installed, was of original owner Nathu Shinde to whom the cash grant was allowed by the then Gwalior State. This finding has not been reversed by learned First Appellate Court, rather by dismissing all the three appeals, the finding as well as the judgment and decree passed by learned Trial Court has been affirmed by the said Court. Hence, because the defendants (appellants) are coparceners and are jointly holding the entire house, there cannot be any injunction against them because the law is well settled that on every inch of coparcenary property, each coparcener is having equal share and it shall be deemed that possession of one of the coparcener is for another. 26. On bare perusal of Ex. 26. On bare perusal of Ex. D/1, this Court finds that it is a copy of the relevant page of “History Muafidaran Gwalior State” volume 4 page 267, wherein the history Devsthan Shri Ganpati Ji Maharaj situated at Jamadar Khana, Lashkar (suit property) has been mentioned and in this history it has been mentioned that the management of the temple will be of owner of the temple. The owner of the temple Ganpat Rao son of Anand Rao Shinde caste maratha has been shown. On going through the said history (page 267 Ex. D1), this Court finds that it has been mentioned that after the death of Nathu Shinde, the names of Ramrao and Krishnarao were mutated in Samvat 1940 (corresponding year 1883) and after the death of Ramrao, Nemnook (cash grant) was being given to Krishnarao. In Samvat 1978 in place of Krishnarao, name of his nephew Ganpatrao son of Anadrao was mutated in file No. 499 Samvat 1977. On the next page 268, family tree has been mentioned which is as follows :- Nathu Shinde Ram Krishna Shripat Yashwant Anand Rao Rao Rao Rao Rao Ganpat Rao Narayan Rao Ramchandra Rao There is a pure finding of fact by learned two Courts below that Ganpatrao had gone in the adoption of Krishnarao, this has not been proved and from the documents which the plaintiff himself has filed, it is borne out that he is the son of Anandrao and not the adopted son of Krishnarao. I have also gone through the original book of “History Muafidaran Gwalior State” Samvat 1988 (corresponding year 1931 Volume 4). But it is only a history of Muafidaran and it is not a statute. Ex. D/1 is the relevant page 267 of the said book. Since this book is only a History describing in whose favour the Muafi Nemnook (cash grant) etc. is settled and after the death of the person obtaining the grant from Gwalior State, to whom the grant is settled and further in respect of mutation in the Muafi register etc. and nothing more, therefore, by this book of history rights of the parties cannot be decided. According to me, this history cannot take place of a statute. On bare perusal of Ex. and nothing more, therefore, by this book of history rights of the parties cannot be decided. According to me, this history cannot take place of a statute. On bare perusal of Ex. P/2 which is memo/order of Commissioner Gwalior Division Gwalior dated 19.7.71, this Court finds that it was held by the Commissioner that Ganpatrao Shinde [to whom case grant of Murti Shri Ganpati Ji Maharaj Jamdarkhana Rs. 252/- annually was allowed to offer Puja and Seva at No. 10/95 (Samvat)] had died on 8.3.70 and on account of his demise the yearly cash grant is allowed in favour of Kishan Rao who is the eldest son of Ganpatrao and his name is also mutated although the objection was submitted by Narayanrao (the first defendant) son of Anand Rao Shinde. The order was passed by the Commissioner by taking the aid of section 6 of the Quawayad Muafidaran and it was held that as per the provisions of this section the eldest son is entitled for the grant and is also entitled to get his name mutated in the record and accordingly his (Kishan Rao’s) name was mutated in place of Ganpatrao and objections of Narayanrao (first defendant) were rejected and the yearly cash grant in favour of Kishan Rao was allowed by Commissioner on 19.7.71. 27. The history Muafidaran cannot take place of statute and it pertains only to the history of Muafidaran elaborating like a story that to whom Nemnook (cash grant) was allowed. But section 6 of the Quawayad Muafidaran, which is a statute, speaks about the person who will be entitled for the cash grant under the law. Because Ganpatrao was the eldest son of Anand Rao and was the elder brother of first and second defendants, therefore, under section 6 of the said law cash grant was started to be given to him. After the death of Ganpatrao vide order dated 19.7.71 (Ex. P/2) the Commissioner rightly passed the order to make payment of cash grant to his son Kishan Rao under section 6 of the Quawayad Muafidaran. It is not disputed that because other heirs of Nathu Shinde (original person) were not alive, therefore, firstly Ganpatrao (who filed the present suit on behalf of the deity) and after his death the name of his eldest son Kishan Rao has been mutated and grant has been permitted to him. It is not disputed that because other heirs of Nathu Shinde (original person) were not alive, therefore, firstly Ganpatrao (who filed the present suit on behalf of the deity) and after his death the name of his eldest son Kishan Rao has been mutated and grant has been permitted to him. According to section 6 of Quawayad Muafidaran the order of succession has been mentioned and because Ganpatrao was falling within section 6 (a) being the eldest son of Anandrao, his name was mutated in the record of Muafi and grant was allowed to him. Thus, Ganpatrao who filed the present suit was only entitled for Nemnook (cash grant) and merely because cash grant was allowed to him under section 6 (a) of the Quawayad Muafidaran, it cannot be said that he became the exclusive sole owner of the entire house including the premises in which the deity Shri Ganpati Ji Maharaj has been installed. If the intention of the then legislature was that the person who would get the Nemnook (cash grant) would also become the owner of the premises in which deity has been installed, certainly section 33 of the said Act would not have been enacted wherein specifically it has been legislated that for any reason if the Muafi is seized or cancelled, it will not effect the ownership right of the person in respect of the premises in which deity is installed. Thus, I am not having any scintilla of doubt in my mind on x-raying section 6 and 33 of the Quawayad Muafidaran to hold that merely because the Nemnook was allowed in favour of Ganpatrao, he will not become the exclusive and sole owner of the entire suit house and also the premises in which deity Shri Ganpat Ji Maharaj has been installed which is the part of suit house because allowing Nemnook has nothing to do with the ownership right of the premises in which the deity has been installed. Indeed, the learned two Courts below have misdirected themselves by Ex. D/1 which is the relevant page (267) of the book of “History of Muafidaran Gwalior State”, which is only a history and not a statute. Indeed, the learned two Courts below have misdirected themselves by Ex. D/1 which is the relevant page (267) of the book of “History of Muafidaran Gwalior State”, which is only a history and not a statute. Indeed statue is Quawayad Muafidaran and on going through its vaious provisions 12, 16 and paying heed and putting emphasis to section 6 (1) and 33 of the said statute, I am of the view that merely because cash grant was allowed in favour of plaintiff Ganpatrao, would not straightway entail him to claim the sole and exclusive ownership of the disputed house including the premises in which deity has been insatalled because that house is of original owner Nathu Shinde whose heirs are defendants as well as plaintiff. 28. Substantial question of law No. (ii) is thus answered that Ganpatrao cannot be declared to be exclusive owner of the temple, part of the suit property, but the premises in which deity is installed is of plaintiff Ganpatrao as well as that of defendants and Ganpatrao was having only right to obtain Nemnook (cash grant) which after his death is being ordered to be given vide Ex. P/2 to his son Krishnarao. Regarding Substantial question of Law No. (i) :_ 29. On bare perusal of the plaint, it is gathered that Ganpatrao to whom cash grant was allowed was serving at Sheopur. The pleading of the defendants is that they were offering Puja and Seva to the deity alongwith the Pujari. There is overwhelming evidence of the defendant in this regard and plaintiff Ganpatrao as well as his witnesses were cross-examined on this point. However, learned two Courts below have misdirected themselves on the ground that Nemnook was settled in favour of Ganpatrao and he is shown as owner of the temple in the history Mafidaran (Ex. D/1). There is overwhelming evidence of the defendant in this regard and plaintiff Ganpatrao as well as his witnesses were cross-examined on this point. However, learned two Courts below have misdirected themselves on the ground that Nemnook was settled in favour of Ganpatrao and he is shown as owner of the temple in the history Mafidaran (Ex. D/1). I have already held hereinabove that history Muafidaran is only a history and is not having force of law and since it is not a statute, therefore because the ancestors of plaintiff as well as defendants were offering Puja to the deity, under the Quawayad Muafidaran this right is a heritable right if the provisions of sections 4, 5, 6, 13 and 16 of the said Statute are read conjointly, and therefore, after the death of Anandrao although the Nemnook was settled in favour of Ganpatrao, but present defendants who are his real younger brothers are also having heritable right to offer Puja and Seva to the deity. 30. The substantial question of law No. (1) is thus answered that the right of Puja and Seva cannot be conferred exclusively to plaintiff Ganpatrao. 31. Ex consequenti, this appeal succeeds and is hereby allowed. The impugned judgment and decree passed by learned two Courts below is hereby set aside and the suit of the plaintiff is hereby dismissed. The cross-objections filed by L.Rs. of plaintiff are also dismissed. However, the defendants would not be entitled for the Nemnook (cash grant) which is being provided to Kishan Rao son of Ganpatrao. Looking to the facts and circumstances of the case, parties are directed to bear their own costs.