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2013 DIGILAW 467 (MP)

State of M. P. v. Shree Ranchor Teekam Mandir

2013-04-05

A.K.SHRIVASTAVA

body2013
JUDGMENT : This second appeal has been filed at the instance of defendants against the judgment and decree of reversal passed by learned Additional District Judge (Fast Track Court), Ujjain in Civil Appeal No. 24-A/2003 whereby the judgment and decree dated 20-11-2003 passed by learned Civil Judge, Class I, Mahidpur in Civil Suit No. 162-A/1995 decreeing the suit of plaintiff partly, has been dismissed. 2. Today is the auspicious day because long drawn litigation which was filed near about 33 years ago on 9-7-1980 is being decided today. 3. No exhaustive statements of fact are required to be narrated for the purpose of disposal of this second appeal looking to the limited substantial question of law which has been framed and further the facts in detail are already mentioned in Paras 2 to 6 of the impugned judgment. For ready reference, it would be condign to state that the disputed property is a temple as well as the agricultural land of temple. According to the plaintiff, the temple is a private temple and was established by the plaintiffs ancestors. Further, it has been pleaded that the deity is the Bhumiswami and it is also so recorded in the revenue record. The State of M.P. issued notice to the plaintiff on 7-7-1980 to auction the land and hence the present suit has been filed by the plaintiff on 9-7-1980 for declaration and injunction praying the relief that the suit property be declared as a private temple and the deity is the Bhumiswami of the agricultural land, the description whereof is given in the plaint. A decree of injunction is also prayed that defendants may not interfere in the disputed property and they be not dispossessed. 4. The defendants filed written-statement and denied the plaint averments. The defendant No. 5-Manohar is the real brother of Surendra through whom the suit has been filed. The stand of the State Government in its written-statement is that the suit temple is not a private temple and is a public temple. According to the order and directions of the State Government the name of Collector as Vyavasthapak (Manager) of the suit property has been endorsed in the revenue record. According to the defendants, the plaintiff has no case and the suit be dismissed. 5. The plaintiff examined Surendra Das (P.W. 1), Ratanlal (P.W. 2), Kanhaiyalal (P.W. 3) and Vivek Dattatreya (P.W. 4). According to the defendants, the plaintiff has no case and the suit be dismissed. 5. The plaintiff examined Surendra Das (P.W. 1), Ratanlal (P.W. 2), Kanhaiyalal (P.W. 3) and Vivek Dattatreya (P.W. 4). The plaintiff filed documents (Exhs. P-1 to P-33) and mostly the documents are the revenue records. The defendants, however, did not examine any witness and did not file any document. 6. The learned Trial Court on the basis of evidence placed on record dismissed the suit. The first appeal which was filed by the plaintiff has been partly allowed and suit of plaintiff has been partly decreed by passing the impugned judgment and decree. 7. In this manner, this second appeal has been filed by the defendants which was admitted by this Court on 1-2-2006 on the following substantial question of law :- "Whether Lower Appellate Court was justified in holding that the suit land and the agricultural land appertained thereto is the private property of respondents ?" 8. The contention of Shri Guha, learned Panel Lawyer for the appellant/State is that the disputed property is a temple and it has been so recorded in the revenue record and if that would be the position it would be deemed to be a public temple and, therefore, the name of Collector has been rightly endorsed in the revenue record as Vyavasthapak (Manager). In support of his contention, learned Counsel has placed heavy reliance upon Single Bench decision of this Court in Goyaprasad and another Vs. State of M.P., ILR 2008 MP 3200, and submitted that learned First Appellate Court was not justified in holding that the agricultural land appertain to the temple is the private property of respondents. 9. On the other hand, Shri Chafekar, learned Senior Counsel argued in support of the impugned judgment and submitted that not even a single document has been filed and proved by the State Government in order to hold that the temple in question is a public temple and, therefore, learned First Appellate Court did not err in decreeing the suit of plaintiff for injunction. Learned Senior Counsel further submits that despite overwhelming evidence both documentary and oral, has been adduced by the plaintiff proving his case, the defendants did not adduce any evidence in rebuttal and did not dare to examine even a single witness in order to prove their pleadings raised in the written-statement. Learned Senior Counsel further submits that despite overwhelming evidence both documentary and oral, has been adduced by the plaintiff proving his case, the defendants did not adduce any evidence in rebuttal and did not dare to examine even a single witness in order to prove their pleadings raised in the written-statement. Hence, according to learned Senior Counsel, the evidence of plaintiff stands un-rebutted and if that would be the position, the learned First Appellate Court did not commit any error in decreeing the suit of plaintiff for injunction. 10. Having heard learned Counsel for the parties, I am of the view that this appeal deserves to be dismissed. Regarding Substantial Question of Law framed : 11. There is specific pleading and evidence of plaintiff that the temple in question as well as the land appertained to it is private temple and deity is the Bhumiswami. Specifically, Surendra Das (P.W. 1) has deposed that the temple was established by his ancestors and repairs etc. are being carried out by him and his family members and earlier by his ancestors. The puja etc. is offered by plaintiff. He has further deposed that land revenue was being regularly deposited by his ancestors and now is being deposited by him. The oral evidence of plaintiff is corroborated by the evidence of Kanhaiyalal (P.W. 3) and Vivek Dattatreya (P.W. 4). 12. Apart from oral evidence, umpteen revenue records, i.e., khasra etc. has been filed by the plaintiff. Exh. P-1 is of the years 1971-72 to 1973-74, Exh. P-2 is the khasra of the year 1973-74, Exh. P-3 is the khasra of the year 1974-75, Exh. P-10 is the note prepared by the defendants in regard to the description of temples after the settlement year. In all these revenue records, no where the temple in question has been described to be a public temple. Had it been a public temple, certainly, it would have been so recorded in the revenue record. Not only this, in all these revenue records, the deity has been shown to be the Bhumiswami. 13. Another important document is Exh. P-13, which is the list of Government temples. Had it been a public temple, certainly, it would have been so recorded in the revenue record. Not only this, in all these revenue records, the deity has been shown to be the Bhumiswami. 13. Another important document is Exh. P-13, which is the list of Government temples. At the top of such list, the name of Mahidpur, where the temple in question is situated has been mentioned and it has been specifically endorsed that there is no Government temple in Mahidpur although in the same document at other places the description of Government temple has been mentioned. The other corroborating documents are ample entries in the Municipality and the receipts etc. Looking to the overwhelming documentary as well as oral evidence on record pointing out that the disputed temple is a private temple and the deity Shri Ranchor Teekam Mandir is the Bhumiswami of the agricultural land appertained and specially when there is not even a single document in rebuttal in order to demonstrate that the suit temple is either public or Government temple or the land in question is Government land, I am of the view that learned First Appellate Court did not commit any error in holding that the temple in question is a private temple and the deity is the Bhumiswami. True, the learned Trial Court has held that the temple in question is a public temple but the said finding is based upon no document and, therefore, it was rightly set aside by learned First Appellate Court. The Single Bench decision of this Court in Gaya Prasad (supra), placed reliance by learned Panel Lawyer for the appellants is not applicable in the present case for the simple reason that in the said decision the temple was found to be public temple. However, in the present case, when there is not even a single document in order to show that the temple in question is a public temple or the deity is not the Bhumiswami of the agricultural land, hence, I am of the view that the decision of Gaya Prasad (supra), is not applicable in the facts and circumstances of the present case. 14. 14. One important fact which cannot be marginalised and blinked away is that when the State of M.P. and its functionaries who are defendants fought the case tooth and nail but why at the time of adducing evidence they turned back and did not examine even a single witness. The answer is very simple because they were quite aware that if any witness will be examined, he will face tight corner of cross-examination which would be made by plaintiff specially when there is no basis to prove their stand that the land in question is a public temple and, therefore, not even a single witness was examined in the rebuttal. Hence, according to me, the evidence of plaintiff stands un-rebutted and unchallenged. 15. Near about century ago, the Privy Council in Sardar Gurbaksh Singh Vs. Gurdial Singh and another, 1927 Privy Council 230, has categorically held that the practice of not calling the party as witness with a view to force the other party to call him, and so suffer the discomfiture of having him treated as his, (the other party's) own witness is a bad and degrading practice. Same analogy has been adopted by the Division Bench of this Court in Kasturchand Vs. Kapurchand, 1975 JLJ 333 , wherein it has been specifically held that if a party personally knowing the facts and circumstances to give evidence on his own behalf and to submit to cross-examination and his non-appearance as a witness would be the strongest possible circumstance, which will go to discredit the truth of the case. In this regard, I may also profitably place reliance upon the decision of Supreme Court in Vidhyadhar Vs. Mankikrao and another, AIR 1999 SC 1441 . Hence, I am of the view that plaintiff has successfully proved his case by proving that temple in question is a private temple and the land appertained thereto is the Bhumiswami of the deity Shri Ranchordasji. The stand which has been taken by the defendants in their written-statement that the temple in question is a public temple has not at all been proved in absence of any document on record. 16. I do not find any merit in the contention of learned Counsel for the appellants/State that as per directions and order of the State Government, the name of Collector, Ujjain was added as Vyavasthapak (Manager) in the revenue record. 16. I do not find any merit in the contention of learned Counsel for the appellants/State that as per directions and order of the State Government, the name of Collector, Ujjain was added as Vyavasthapak (Manager) in the revenue record. The stand of defendants in the written-statement as well as the Courts below and so also in this Court is that according to the order of the State Government, the name of Collector was endorsed as Vyavasthapak of the temple in question. To me, the said action of the State Government runs de hors to Section 115 of M.P. Land Revenue Code, 1959 (for short 'Code'). According to this Section, if any Tehsildar finds that a wrong or incorrect entry has been made in the land records prepared under Section 114 by an officer subordinate to him, he shall direct necessary changes to be made therein in red ink after making such enquiry from the person concerned as he may deem fit after due written notice. According to me, the words embodied in this Section "after due enquiry and written notice" are having definite meaning which include holding an enquiry after giving due notice to the person interested. It has been frankly admitted by learned Panel Lawyer that no notice was ever given to the plaintiff before endorsing the name of Collector as Vyavasthapak in the revenue record and similarly no enquiry was made. Hence, I am of the view that such an action runs contrary to Section 115 of the Code. There is a Division Bench of this Court in Shiv Narain Vs. Tehsildar, Gwalior, 1960 JLJ 1016 , which is in respect of Section 50 of M.B. Land Revenue and Tenancy Act, 1950, which is equivalent to the provisions of Section 115 of the Code. In this Division Bench decision also, the Division Bench has held that without holding an enquiry and giving notice to the person interested, there cannot be any change in the revenue record. There are several other decisions of this Court on this point. 17. The substantial question of law is thus answered that learned First Appellate Court was justified in holding that the agricultural land appertained to it is the private property of the respondent. 18. Resultantly, this appeal fails and is hereby dismissed with no order as to costs.