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Judgment
This appeal is directed against the judgment & decree dated
10.05.2016 passed by the Additional District Judge, Bali, District -
Pali (Camp Desuri) (''the first appellate court''), whereby the appeal
filed by the respondent-Mangi Lal against the judgment & decree
dated 05.07.2008 passed by the Civil Judge (Jr. Division), Desuri,
District - Pali (''the trial court''), has been allowed and the suit filed
by the respondent-plaintiff for declaration and permanent
injunction has been decreed.
The respondent-plaintiff filed a suit for declaration,
permanent injunction and accounts on 10.12.2001 against the
appellant, his real brother with the averments that their aunt
(Bhua) Ansi Bai took Samadhi and the said place, where she took
Samadhi is situated at Village - Nadol and known as Ansi Bai
Samadhi Sthal. After Samadhi was taken by Ansi Bai, grand-father
of the parties Shri Tuaramji started doing Pooja-Archana and used
to receive the Chadawa, which was used for maintaining the
family and for development of the Samadhi Sthal, after his death,
his son/father of the parties Kasaramji started doing the Pooja-
Archana and management of the Samadhi Sthal and used the
Chadawa for maintenance of the Samadhi Sthal and his family.
The plaintiff and defendant are two sons of Kasaramji, who on
account of his old age in the year 1987 handed over the work of
Pooja-Archana and maintenance as Poojari to both of them as his
successors and since then both were undertaking the said Pooja-
Archana jointly and after distributing the income from the
Samadhi among themselves were maintaining their families.
It was then submitted that with the passage of time, income
of the Samadhi Sthal started increasing, whereafter the defendant
with an intension to grab the entire income in September, 1997
turned the plaintiff out and has deprived him from doing Pooja-
Archana and getting the amount of Chadawa, regarding which, FIR
was lodged, cognizance was taken and the case was pending.
Based on the said averments, relief was sought for declaration
that the plaintiff and defendant were entitled to 50% share each
in the income/Chadawa of the Temple of the Samadhi Sthal and
for doing the Pooja-Archana and management of the Temple of
the Samadhi as Poojari; further injunction was sought from
interference and for fixing the turn of the parties; further relief
was sought seeking accounts for the period, the plaintiff remained
deprived of the Pooja-Archana and the amount of Chadawa.
The suit was amended and a plea was taken that on account
of the custom, the plaintiff was entitled to do the Pooja-Archana.
A written statement was filed by the appellant-defendant
indicating that after Samadhi was taken by Ansi Bai, its Pooja-
Archana etc. was being done by Tuaramji, whereafter in 1982, the
defendant came on Samadhi as a Poojari and started doing
Poojapath and Archana. It was denied that from the receipts of
Poojapath and Chadawa, the family of Tuaramji was maintained. It
was claimed that Tuaramji had independent income. It was
claimed that one Ansi Bai Seva Samiti was formed comprising of
amount 70 persons of Meghwal Samaj from 8 Districts under
whose supervision, the Temple was renovated, Dharmshala was
constructed and various developments were undertaken and the
amount of Pooja-Archana and Bhent receipt is being used for the
said purpose; the income from the Samadhi has never been a
source for maintenance of the family. It was claimed that the
defendant has been appointed by the Ansi Bai Seva Samiti as
Poojari. It was claimed that the property is not personal property
of Kasaramji, but is a public religious place, which cannot be
partitioned and there was no legal basis for filing of the suit,
denied all the averments regarding plaintiff having been
dispossessed form the work of Pooja-Archana etc. were denied
and it was prayed that the suit be dismissed.
The trial court framed 9 issues. On behalf of the plaintiff,
three witnesses including father PW-2 Kasaramji were examined
and three documents were exhibited. On behalf of the defendant, two witnesses were produced and eleven documents were
exhibited.
After hearing the parties, the trial court came to the
conclusion that the plaintiff has failed to prove that based on the
custom of Meghwal Samaj, plaintiff and defendant were
undertaken Pooja-Archana and were maintaining their family; as
the defendant has been acquitted in the criminal case, it was not
proved that the plaintiff was turned out from doing the Seva-
Pooja; it was not proved that the plaintiff has from before 1999
had received any share from the Temple Chadawa and as plaintiff
has accepted that Temple is not their property (Jagiri), the issues
were decided against the plaintiff. Based on the said findings, the
suit was dismissed.
Feeling aggrieved, the respondent-plaintiff filed first appeal.
The first appellate court after hearing the parties, inter alia, came
to the following conclusion:-
"VERNACULAR MATTER OMITTED"
The first appellate court also came to the conclusion that
merely because the defendant was acquitted by the criminal court,
the evidence of PW-2 father Kasaramji and his statement
produced by defendant as Ex.-A-1 were sufficient to prove that the
plaintiff was turned out from Seva-Pooja and the receipt of the
Chadawa/management in the year 1999. The issue regarding
claim made by the plaintiff pertaining to accounts/Chadawa since
the year 1999 on account of the nature of evidence, which came
on record, was held against the plaintiff. The plea raised by the
defendant regarding his appointment by Ansi Bai Seva Samiti as
Poojari was negated and ultimately the following decree was
passed:-
It is submitted by learned counsel for the appellant that the
first appellate court committed error in reversing the findings
recorded by the trial court. It was submitted that there was no
evidence available on record to prove the custom and the custom
claimed by the plaintiff regarding the right to do the Seva-Pooja
was not proved in terms of Section 13 of the Evidence Act, 1872 and, therefore, the first appellate court was not justified in
accepting the appeal.
Further submissions were made that the plaintiff had failed
to establish issues No.1, 3 and 7 as framed by the trial court,
wherein he was required to establish the custom, right to receipt
Bhent/Chadawa and maintainability of the suit during the life-time
of their father Kasaramji and on that count also, the order passed
by the first appellate court deserves to be set aside.
It was emphasized that the first appellate court without
meeting with the reasoning of the trial court has reversed the
findings by its impugned judgment, which cannot be sustained on
any count.
Submissions were made that substantial questions of law
does arise in the present appeal and, therefore, the same may be
framed and the appeal be admitted and decided on the said
questions.
Learned counsel appearing for the respondent supported the
judgment of the first appellate court. It was submitted that the
trial court dealt with the matter in a most cursory manner and the
documents available on record were wrongly interpreted and the
first appellate court after thoroughly discussing the issues and the
material available on record, has by cogent reasons reversed the
findings recorded by the trial court and, therefore, the said
judgment does not call for any interference. It was submitted that
the findings recorded by the first appellate court are findings of
fact and the same does not call for any interference in second
appeal and, therefore, the appeal deserves to be dismissed.
I have considered the submissions made by learned counsel
for the parties and have perused the material available on record.
The trial court came to the conclusion that the plaintiff has
not produced any material, whereby he has been appointed as
Poojari and/or the Meghwal Samaj or Ansi Bai Seva Samiti has
accepted him as Poojari and as he has accepted that the Temple
was not owned by the parties (not their tkxhjh), he had no right
and, consequently, dismissed the suit.
A bare look at the material, which has come on record, and
the findings recorded by the first appellate court, it is apparent
that Ansi Bai was aunt (Bhua) of the parties, after she took
Samadhi, the place (Samadhi) was being looked after by Tuaramji,
grand-father of the parties and, thereafter by Kasaramji, father of
the parties and Kasaramji, who appeared in the witness-box as
PW-2 specifically asserted that he was looking after the
Samadhi/Temple and used to receive the Chadawa etc. and on
account of his old age required his sons to do the work of Seva-
Pooja/maintenance of Samadhi/Temple. There is no reason to
disbelieve the said statement of Kasaramji. Further, the defence
raised by the appellant that he was appointed by Ansi Bai Seva
Samiti and, therefore, the plaintiff had no right to do the Seva-
Pooja etc., the said plea including the right of the Seva Samiti to
appoint Poojari raised by the appellant was not supported by any
material whatsoever.
The fact that the Seva-Pooja at the Samadhi was being
undertaken since it came into existence by the same family i.e. by
Tuaramji, Kasaramji and thereafter by plaintiff and defendant, having been well established from the material available on
record, there was in fact no requirement whatsoever to even plead
or prove custom in this regard and, therefore, the plea raised
regarding the plaintiff not being able to establish the custom is
baseless, inasmuch as, the facts alleged have been firmly
established as the most important link i.e. Kasaramji, who is
father of the parties has specifically proved the said aspect and
there is no reason whatsoever to disbelieve his statement.
The mere fact that the plaintiff stated that property in
question did not belong to him/to the parties (not their Tkkxhjh) by
itself cannot take away the status of the plaintiff or negate the
claim of the plaintiff as Poojari and consequences of being such
Poojari and, therefore, the over-emphasis placed by the trial court
on the said aspect/ statement has led to its coming to an
apparently incorrect conclusion. The first appellate court has
thoroughly dealt with the matter and has essentially recording
findings of fact, which cannot be made subject matter of a second
appeal.
In view of the above discussion, no substantial question of
law arise for consideration of this Court.
Consequently, the appeal has no substance, the same is,
therefore, dismissed.