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Madhya Pradesh High Court · body

2011 DIGILAW 885 (MP)

State of M. P. v. Vijaya Bai

2011-08-08

A.K.SHRIVASTAVA

body2011
JUDGMENT 1. This is defendant's second appeal who has lost from two Courts below as suit of plaintiffs has been decreed and first appeal filed by defendants has been dismissed. 2. The facts necessary for the disposal of this appeal lie in narrow compass. Long back more than 28 years ago on 22.4.1983, a suit for declaration of bhumiswami right and injunction has been filed by the plaintiffs against defendant-State Government on the averments that suit property was given to their forefather by the-then Holker State in Inam since they were offering the prayer to the deity Shri Ramji of Ram Mandir. Earlier their forefather was cultivating the agricultural lands in question and was also offering the Pooja to the deity Shri Ramji of the said Mandir. On coming into force of M.P. Land Revenue Code, 1959 (in short "Code") by operation of law, the plaintiffs forefather became bhumiswami and after their death they have become the bhumiswami. The Tehsildar without issuing any notice to the plaintiff in contravention to the law has mentioned the name of Collector Dewas as Manager of Shri Ramji Mandir and in the year 1982-83 has put the lands in question for auction to give patta. The notice of auction is dated 24.5.1982, which plaintiffs received on 4.6.1982 and hence after serving notice under section 80 of CPC on 25.6.1982 which was received in the office of Collector Dewas on 26.6.1982 the present suit has been filed for declaration of bhumiswami right as well as for injunction. 3. The defendant-State Government refuted the plaint averments by filing written statement. In the written statement the factum of giving lands in question to forefather of plaintiffs in Inam has been denied. But the factum of offering Pooja by the plaintiffs has not been denied. According to defendant, the plaintiffs are Pujari and in order to maintain the Mandir the land was given and they are not the bhumiswami. The procedure of inserting the name of Collector Dewas as Manager of the temple of suit property in the revenue record has been pleaded to be validly adopted. It has been prayed by the defendant that suit be dismissed. 4. Learned trial Court framed necessary issues. The plaintiffs thereafter examined themselves and proved the revenue record. However, the evidence of plaintiffs has not been rebutted by defendant by examining any witness. 5. It has been prayed by the defendant that suit be dismissed. 4. Learned trial Court framed necessary issues. The plaintiffs thereafter examined themselves and proved the revenue record. However, the evidence of plaintiffs has not been rebutted by defendant by examining any witness. 5. Learned Trial Court on the basis of evidence placed on record decreed the suit of plaintiffs and the first appeal which was filed by defendant, has been dismissed by the impugned judgment and decree. 6. In this manner this second appeal has been filed by the defendant assailing the judgment and decree passed by learned Two Courts below. 7. This Court on 15.12.1995 admitted the second appeal on the following substantial questions of law: 1) "whether Pujari of a Deity can acquire the rights of Bhu-swami in respect of the land belonging to Deity, handed over to State for cultivation, for maintenance, puja-archana of Deity? 2) Whether Civil Court has jurisdiction to decide the present suit in the form in which it has been brought. 3) Whether the judgment and decree passed by the Courts below suffer from the infirmity of perversity? 8. Shri Pramod Meetha, learned Government Advocate submitted that the status of plaintiffs is that of Pujari of deity only and they cannot acquire right of bhumiswami over the suit property. Learned Government Advocate further submits that indeed land is of deity and the plaintiffs forefather was given only right to offer Pooja and for the maintenance of the temple, the land in question was given to him and if that would be the position, since, the disputed lands were never given to forefather of plaintiffs by the-then Ruler but lands were given to deity, therefore, the plaintiffs are not the bhumiswami. In support of his contention, learned counsel has placed heavy reliance Mahant Shri Trilokdas Guru v. Sita Bai and others, 2007 RN 73 = 2006 (3) MPLJ 87. 9. Learned Government Advocate further submits that without approaching the SDO, the civil Suit has been directly filed which is not maintainable in view of the section 57(2) and 57(3) of the Code, hence it has been prayed that appeal be allowed and the judgment and decree of learned two Courts below be set aside and the suit of the plaintiffs be dismissed. 10. 10. On the other hand, Shri Mehta, learned counsel for respondents argued in support of the impugned judgment and submitted that the lands in question were never given to deity, on the contrary they were given to forefather of plaintiffs in Inam to offer Pooja of Mandir Shri Ramji and if that would be the position, by operation of law under section 158 of the Code on coming into force of the Code, firstly plaintiffs' forefather and after his death, the plaintiffs became bhumiswami of the suit property and therefore learned two Courts below did not err in decreeing the suit of the plaintiffs. By placing reliance on the Full Bench decision of this Court State of M.P. v. Balveer Singh, 2001 RN 343 it has been put-forth by learned counsel for respondents that since the suit for declaration of bhumiswami right and permanent injunction has been filed, the same is maintainable before the Civil Courts and the plaintiff are not required to approach SDO first in view of section 57(2) of the Code. 11. Learned counsel further submits that without issuing any notice to plaintiffs and without holding any inquiry under section 115 of the Code the entry in the revenue record has been changed by the Tehsildar and entered the name of Collector Dewas as Manager of the said temple, which is wholly unwarranted under the law and de hors to section 115 of the Code. Hence it has been prayed that this appeal is sans substance and the same be dismissed. 12. Having heard learned counsel for the parties, I am of the view that this appeal deserves to be dismissed. Regarding substantial question of law No.1 : 13. On bare perusal of the plaint this Court finds that nowhere the plaintiffs have pleaded that suit property was given to deity. On the other hand it is pleaded that lands in question were given to plaintiffs' forefather in Inam as they were offering Pooja of temple Shri Ramji. These averments of plaintiffs have been denied by the defendant. According to defendant, the only right which the plaintiff are owing is to offer the Pooja in the temple and in order to maintain the temple and its affairs in the capacity of Pujari they are possessing the suit property. But they are not the bhumiswami. 14. These averments of plaintiffs have been denied by the defendant. According to defendant, the only right which the plaintiff are owing is to offer the Pooja in the temple and in order to maintain the temple and its affairs in the capacity of Pujari they are possessing the suit property. But they are not the bhumiswami. 14. Indeed the learned trial Court framed the issues No.1 to 3 in this regard. In order to prove these issues the foundation stone (the basis documents) Inam of the lands have been filed by the plaintiffs and they are Ex. P/6, Ex. P/7, Ex. P/8, Ex. P/6 is in respect to village Dhulna, Ex. P/7 is of village Iklera and Ex. P/8 is of village Nemawar. These documents are dated 6.3.1930. It would be relevant to mention that how and in what manner the disputed lands has been given in this document and to whom, therefore, I am reproducing the document here ipkZ ckcr rgdhdkr buke tehu uke ekStk nqyuk egky [kkrsxako ftyk usekoj] gksYdj LVsV Ukke [kljk uacj jdck- buke dk ‘kjk;r jde nkeh dSfQ;r bukenkj bukeh [ksrksa izdkj vxj tks okthc gks dksbZ gks] 1 2 3 4 5 6 7 Xkaxk/kj iq= 121 32&80 nsokLFkku Jhjketh buke eqdqank iqtkjh eafnj ekSts buDok;jh ckzEg.k lk- usekoj ds jk-u- 30 usekoj iwtk vpZ equkfQd nkeh ckcn ekQ 15. These three documents are identically verbatim to each other accept the name of the village. Needless to say that Ex. P/6 is of village Dhulna, while Ex. P/7 is of village Iklera and Ex. P/7 pertains to Village Nemawar. On bare perusal of column No.1 which is the column of Inamdar, to whom the land is given, the name of Gangadhar S/o. Mukunda has been mentioned and this position finds place in Ex. P/7 and Ex. P/8 also. Except in Ex. P/8 word Pujari has not been mentioned. In column No.2 the Khasra number of the field has been given, column No.3 pertains to its area while column No.4 is in respect of which kind of Inam is and in this column Devisthan has been endorsed. Column No.5 and 6 are very important. In column No.5, which is in respect of conditions, if any, it has been mentioned to offer Pooja of Shri Ramji Mandir. Column No.5 and 6 are very important. In column No.5, which is in respect of conditions, if any, it has been mentioned to offer Pooja of Shri Ramji Mandir. In column No.6 it has been mentioned that Inam 1and has been given in terms of Rule No. 30 and payment of revenue is exempted. On the rear side of this document, it has been mentioned that the land is given, to Inamdar i.e. plaintiffs' forefather by the order of Settlement Officer. The signature of Settlement Officer is also there on each document of Ex. P/6, P/7 and P/8. 16. It would be relevant to mention here that if the land would have been given to deity Shri Ramji then certainly name of deity should have been mentioned in column No. 1 but in column No. 1 the name of Gangadhar, who was the forefather of the plaintiffs, has been mentioned and therefore I am of the view that the land was given to plaintiffs' forefather in Inam by the-then Holkar State to offer Pooja of Shri Ramji Mandir. Thus, it cannot be said that lands was given to deity Shri Ramji. The plaintiff Vishwanath examined himself as PW 1 and he proved these documents. No document in rebuttal has been filed by defendants nor any witness has been examined by it Hence it has been proved that land was given to plaintiffs' forefather in Inam to offer Pooja and therefore learned Courts below did not commit any error in decreeing the suit of plaintiffs. The decision of Mahant Shri Trilokdas Guru (supra) relied by learned Counsel for State is not applicable in the present case because as facts borne out from the said decision the plaintiffs' forefather of that case was working in the temple named as Shri Ramji Mandir, and they used to clean the temple and were performing other duties of the temple. However, facts of this case are altogether different. In the present case, there is a different pleading of plaintiffs that lands in question were given to their forefather in Inam to offer the Pooja of deity. In these facts and circumstances, I am of the view that decision of Mahant Shri Trilokdas Guru (supra) is not applicable in the present case. 17. In the present case, there is a different pleading of plaintiffs that lands in question were given to their forefather in Inam to offer the Pooja of deity. In these facts and circumstances, I am of the view that decision of Mahant Shri Trilokdas Guru (supra) is not applicable in the present case. 17. Substantial question of law No.1 is thus answered that because the lands in question were given to plaintiffs' forefather in Inam by the-then Holkar State and not to the deity, firstly the plaintiffs' forefather and after his death, the plaintiffs' became the bhumiswami on coming into force of the code. Regarding substantial question of law No. 2 : 18. So far as the contention of learned Government Advocate that suit is not maintainable in view of section 57(2) and 57(3) of the Code because without approaching the SDO, straightway suit has been filed is not maintainable is concerned, suffice it to say that Full Bench of this Court in Balveer Singh (supra) has already held that Civil Suit is maintainable without approaching the SDO. Moreover, the Supreme Court in Hukum Singh (Dead) by LRs. and others v. State of M.P. (2005) 10 SCC 124 has held that Civil Court is having jurisdiction and judgment of this Court was reversed holding that there is bar under section 57(2) of the Code to file Civil Suit. The present case is for declaration of bhumiswami right and injunction which, according to me, is maintainable in Civil Court only and in this regard section 9 of the CPC may be seen. The Supreme Court in Hukum Singh's case (supra) has approved the earlier Full Bench decision of this Court Ramgopal v. Chetu 1976 JLJ 278 . The Supreme Court also relied its other earlier decision Rohini Prasad v. Kasturchand 2000 RN 141 = (2000) 3 SCC 668 in which it was held by the Supreme Court that Full Bench decision of Ramgopal (supra) has laid down the correct proposition of law and therefore I am of the view that Civil Suit is maintainable and Civil Court was having jurisdiction to decide the Civil Suit in the form in which it has been brought. In this context, I am also relying Full Bench decision of this Court Ramgopal (supra). Regarding substantial question of law No.3: 19. In this context, I am also relying Full Bench decision of this Court Ramgopal (supra). Regarding substantial question of law No.3: 19. For the reasons stated hereinabove the judgment passed by learned Two Courts below does not suffer from any infirmity and perversity. This substantial question of law is also this answered accordingly. 20. In the result this appeal fails and is hereby dismissed and the judgment and decree passed by learned two Courts below is hereby affirmed. No costs.