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2019 DIGILAW 983 (CHH)

ADUR (DEAD) v. KANIYA RAM (DEAD)

2019-11-05

SANJAY K.AGRAWAL

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JUDGMENT Sanjay K. Agrawal, J. - The substantial questions of law involved, formulated and to be answered in this second appeal preferred by the defendants/appellants herein are as under:- "1. Whether the judgment of the lower Appellate Court reversing the judgment of the trial Court is based on ignoring the evidence available on record and the same is on the basis of misreading of the evidence and documents available on record and as such perverse ?" 2. Whether the judgment and decree passed in Civil Suit No.7-A/1967 by the Court of Civil Judge Class-I, Kanker confers any right upon the plaintiff to act as a priest of the temple in question ?" [For the sake of convenience, the parties would be referred hereinafter as per their status shown in the suit before the trial Court]. 2. Original plaintiff-Kaniya, son of Gurda, filed a suit for permanent injunction stating inter-alia that in Civil Suit No.5-A/67 (Gurda v. Jarre and others) decree was granted by the trial Court on 14.1.69 holding that Gurda along with defendant No.1-Jarre and defendant No.-2-Dori therein is jointly Gayta and priest of two temples namely Shitla Mandir and Thakur Dai Mandir and they are entitled for joint possession of the suit land, but the defendants are interfering with their possession, as such, he is entitled for decree for permanent injunction. 3. The defendants set-up a plea that compromise decree was passed and the plaintiff is not Gayta and priest of the said temples and for the said purpose, Durg Sai has been appointed by the villagers, as such, the suit deserves to be dismissed. 4. The trial Court after appreciating oral and documentary evidence available on record, by its judgment and decree dated 28.11.2002, dismissed the suit, but the first appellate Court allowed the appeal and granted decree in favour of the plaintiff. Questioning the judgment and decree passed by the first appellate Court, this second appeal under Section 100 of the CPC has been filed by the appellants/defendants, in which substantial questions of law have been formulated by this Court, which have been set-out in opening paragraph of this judgment. Now the plaintiff has died during pendency of this second appeal and his legal representatives have been brought on record. 5. Now the plaintiff has died during pendency of this second appeal and his legal representatives have been brought on record. 5. Mr.Prakash Tiwari, learned counsel for the appellants/defendants, would submit that the first appellate Court is absolutely unjustified in granting decree in favour of the original plaintiff as there is overwhelming evidence on record to hold that the plaintiff is not entitled for permanent injunction as decree was granted in his favour and office of the priest is not heritable by virtue of the provisions contained in Section 6 (f) of the Transfer of Property Act, 1882 (hereinafter called as "the Act of 1882"), as such, the judgment and decree passed in Civil Suit No.5-A/67 does not confer any right and title to the plaintiff. 6. Mr.Vishnu Koshta, learned counsel for legal representative of respondent No.1/plaintiff, would submit that the first appellate Court is absolutely justified in granting decree in favour of the plaintiff as decree clearly directs the plaintiff's father-Gurda and defendant No.1-Jarre & defendant No.-2-Dori therein would jointly be Gayta and priest of the said temples and the plaintiff is having right to claim hereditary right of being appointed as a priest of the said temples, as such, the second appeal deserves to be dismissed. 7. I have heard learned counsel appearing for the parties and considered their rival submissions made hereinabove thoughtfully and also went through the records with utmost circumspection. 8. Instant suit from which this appeal has arisen was originally filed by Kaania (who died during pendency of this appeal) stating that his father Gurda was Gayta and priest of two temples namely, Shitla Mandir and Thakur Dai Mandir at Gram Aamakeda, Tahsil and Bhanupratappur and after his death, he is performing the pooja and other ceremonies at two temples, but in the month of 1999, the defendants interfered with the said right of the plaintiff and locked the temples which was reported by the plaintiff to the police station, but no action was taken, leading to filing to the instant suit. It was also pleaded that Civil Suit No.5A/1967 filed by his father was decreed on 14.1.69 and his father was placed in possession in compliance of the decree of the jurisdictional civil Court, as such, the plaintiff is entitled for decree of permanent injunction. It was also pleaded that Civil Suit No.5A/1967 filed by his father was decreed on 14.1.69 and his father was placed in possession in compliance of the decree of the jurisdictional civil Court, as such, the plaintiff is entitled for decree of permanent injunction. The trial Court decreed the suit holding that the plaintiff's father was Gayta and priest of two temples from time immemorial and after the date of his father, it is not proved that the plaintiff since 4.4.99 is performing duty and functions attached to the office of Gayta and priest (Poojari) and it is also not proved that it is being interfered with by the defendants, the plaintiff is not entitled for decree of permanent injunction restraining the defendants to interfere with his right to perform pooja and other ceremonial pooja at the said temples. 9. On appeal being preferred by the plaintiff under Section 96 of the CPC, the first appellate Court interfered with the judgment and decree of the trial Court and granted decree of permanent injunction in favour of the plaintiff relying upon decree passed by the Civil Court in favour of the plaintiff's father Gurda. 10. The question for consideration is whether the first appellate Court is justified in decreeing the suit for permanent injunction filed by the plaintiff? 11. In Civil Suit No.5A/1967 (Gurda v. Jarre and others), the jurisdictional civil Court on 14.1.69 passed the following decree of declaration and possession:- As such, it was decree of declaration that the plaintiff's father Gurda and defendant No.1-Jarre and defendant No.2-Dori are jointly and pusteni Gayta and poojari of Shitla Devi Temple and Thakur Devi Deity of village Aamakada and decree of possession was also granted in their favour. 12. It is the case of the plaintiff that his father was performing the duty of a priest and Gayta of said temples during his life-time and after his death i.e. 4.4.99 he is performing the duty of pujari, which is being interfered with. The first appellate Court held that earlier civil Court has granted decree that the defendants are bound by the earlier decree granted in favour of the plaintiff's father jointly with Jarre and Dori. 13. The first appellate Court held that earlier civil Court has granted decree that the defendants are bound by the earlier decree granted in favour of the plaintiff's father jointly with Jarre and Dori. 13. The second substantial question of law formulated by this Court is whether the judgment and decree passed in Civil Suit No.7-A/1967 confers any right to the plaintiff to act as a priest of the temple in question. 14. The right of a hereditary priest or Pujari in a temple must also amount to property where emoluments are attached to such an office. (See Angurbala Mullick v. Debabrata Mullick, (1951) AIR SC 293 ). 15. Their Lordships of the Supreme Court in the matter of Mst. Raj Kali Kuer v. Ram Rattan Pandey, (1955) AIR SC 493 have clearly held 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 settled. It was held as under:- "4. 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. A Full Bench of the Calcutta High Court in Manohar v. Bhupendra, (1932) AIR Calcutta 791 (A), has laid this down in respect of Shebaitship of a temple and this view has been accepted by the Privy Council in two subsequent cases in Ganesh v. Lal Behary, (1936) AIR PC 318 (B), and Bhabatarini v. Ashalata, (1943) AIR PC 89 (C). In a recent judgment of this Court reported as Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swamiar, (1954) AIR SC 282 (D, this view has been reiterated and extended to the office of a Mahant. 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 in the case reported as Angurbala v. Debabrata, where the question as to the applicability of Hindu Women's Right to Property Act to the office of Shebaitship came up for consideration. On the same analogy as 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. On the same analogy as 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. Indeed, some of the decisions which have recognised the 'Shebaiti' right as property appear to be cases where the 'Shebaiti' right combines the priestly office of a 'Pujari' of the idol with the office of the manager of the temple, who in South India, is known by the name of Dharmakarta......" 5.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. As has been stated by this Court in AIR 1951 SC 293 (E) : and in AIR 1954 SC 282 (D), "both the elements of office and property, of duties and personal interest are blended together (in such offices) and neither can be detached from the other". It must also be recognised 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. See the observations of Justice Page in Nagendra v. Rabindra, (1926) AIR Calcutta 490 (G), at pages 495 and 496 and that of Justice Sadasiva Aiyar in Sundarambal v. Yogavanagurukkal, (1915) AIR Madras 561 (H), at page 564, as also of Mukherjea on 'Endowments (1952 Edn.) page 201. If, therefore, it is found that the recognition of a female's right to succeed to the hereditary office of 'Pujari' in a temple held by her husband is incompatible with due discharge of the duties of the office, her right to succeed must be negatived........" 16. The principle of law laid down in Raj Kali Kuer (supra) was followed with approval by the Supreme Court in the matter of Vinayaka Dev, Idagunji and others v. Shivaram and others, (2005) 6 SCC 641 and it was held that suit for declaration that plaintiffs therein were hereditary pujaries of temple and consequential relief for injunction pertains to personal/private right of pujaris and not pertains to public right in public trust and as such, the suit was maintainable for declaration of title and permanent injunction. 17. 17. Thus, it is now well settled that religious office can be hereditary and right to such an office is in nature of immovable property under the Hindu law. 18. In the matter of Riju Prasad Sarma and others v. State of Assam and others, (2015) 9 SCC 461 it was held by the Supreme Court that religious believes, custom and practices based upon religious faith and scriptures cannot be treated to be void. Religious freedom protected by Article 25 & 26 of the Constitution of India, can be curtailed by law, made by competent legislature in the permissible extent. 19. Reverting to the facts of the present case in light of principle of law enumerated by the Supreme Court in the above-stated judgments (supra), it is quite vivid that pursuant to decree passed by the jurisdictional civil Court, the plaintiff's father along with two other persons was allowed to perform the function and duty of Gayta and pujari of said two temples, which the plaintiff's father performed till his life-time and after his death, since office of pujari/Gayta is hereditary office and is in nature of property under the Hindu Law, the plaintiff succeeded that office of pujari after death of his father. The first appellate Court has taken correct view of the matter, which is neither perverse nor illegal warranting interference by this Court under under Section 100 of the CPC. 20. At this state, it would be appropriate to notice the submission of learned counsel for the appellants based on Section 6 of the TP Act, which provides as under:- "6. What may be transferred.-Property of any kind may be transferred, except as otherwise provided by this Act or by any other law for the time being in force,- (a) to (e) xxx xxx xxx (f) A public office cannot be transferred, nor can the salary of a public officer, whether before or after it has become payable...." The word "public office" as employed in above-stated provision has not been defined in TP Act. It ordinarily means it is public office which is held by public officer. An office of worship in a temple, which is heritable and partible, is not a public office within the meaning of Section 6(f) of the TPC Act. (See Narayanam Seshacharyulu and another v. Narayanam Venkatacharyulu, (1957) AIR A.P. 876 ). 21. It ordinarily means it is public office which is held by public officer. An office of worship in a temple, which is heritable and partible, is not a public office within the meaning of Section 6(f) of the TPC Act. (See Narayanam Seshacharyulu and another v. Narayanam Venkatacharyulu, (1957) AIR A.P. 876 ). 21. In view of above, I do not find any merit in this second appeal. The substantial questions of law are answered in favour of the plaintiff and against the defendants. Accordingly, the second appeal deserves to be and is hereby dismissed leaving the parties to bear their own cost(s). 22. A decree be drawn up accordingly.