Dismissed

Adur ( Dead ) Through Lrs., v. Kaniya Ram (Dead )

Chhattisgarh HC5 Nov 2019SA/6/2005

Case brief

AI extract

What is this about?

The High Court allowed a second appeal against the first appellate court's decree granting a permanent injunction. The judgment held that a hereditary priest's right is property, not a public office, and the first appeal court correctly interpreted the prior decree conferring hereditary rights to the plaintiff.

What did the court decide?

The second appeal is dismissed. Substantial questions of law answered in favour of the plaintiff and against the defendants. A decree be drawn up accordingly.

Adur ( Dead ) Through Lrs., Vs Kaniya Ram (Dead ) — Property and Title | Chhattisgarh HC (2019)

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AFR

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HIGH COURT OF CHHATTISGARH, BILASPUR

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Second Appeal No.06 of 2005

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Judgment Reserved on :22.09.2019

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Judgment Delivered on: 05.11.2019

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1. Adur (dead) through his Legal representative

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1a. Nawal Singh S/o Late Adur, aged about 32
years, R/o village Amakda, P.S. Bnanupratappur,
District – North Bastar-Kanker (CG)

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1b. Banwasha Bai Wd/o Late Adur, aged about 65
years, R/o Village Amakda, P.S. Bhanupratappur,
District – North Bastar-Kanker (CG)

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2. Ramsingh S/o Budhram Gond, aged about 33 years, R/o Amakada

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3. Puneetram S/o Fatwa Gond, aged about 45 years, R/o Amakada.

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4. Thakurram (Dead) through his Legal representative

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4a. Jagdish S/o Late Thakurram, aged about 32
years, R/o Village Amakda, P.S. Bhanupratappur,
District – North Bastar-Kanker (CG)

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4b. Smt.Jamuna Bai W/o Late Thakurram, aged about
60 years, R/o Village Amakda, P.S. Bhanupratap-
pur, District – North Bastar-Kanker (CG)

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5. Lachchhu S/o Mangatu Gond, aged about 45 years, R/o Amakada

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6. Ishwar (Dead) through his Legal representatives

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6a. Deepakchand S/o Late Ishwar, aged about 23
years, R/o Village Amakda, P.S. Bhanupratappur,
District – North Bastar-Kanker (CG)

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6b. Sharad Chand S/o late Ishwar, aged about 21
years, R/o Village Amakda, P.S. Bhanupratappur,
District – North Bastar-Kanker (CG)

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6c. Smt.Mangati Bai W/o Late Ishwar, aged about
55 years, R/o Village Amakda, P.S. Bhanupratap-
pur, District – North Bastar-Kanker (CG)

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7. Lachchhendra S/o Mangalram Gond, aged about 38 years, R/o Amakada

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8. Bindro (died and deleted)

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9. Akturam (Dead) through his Legal representatives

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9a. Vishnuprasad S/o Late Akturam, aged about 55
years, R/o Village Bogar, P.S. Bhanupratappur,
District – North Bastar-Kanker (CG)

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9b. Satyendra S/o Late Akturam, aged about 45
years, R/o Village Bogar, P.S. Bhanupratappur,
District – North Bastar-Kanker (CG)

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10. Rajman S/o Somdhar Gond, aged about 58 years, R/o Village Kartoti,

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All the above appellants R/o Distt. Kanker (CG)

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---- Appellants/Defendants

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Versus

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1. Kaniya Ram (Dead) through his legal representative

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Shri Vishambhar, S/o. Late Kaniya Ram aged about 25
years, R/o. Village Amakda, P.S. and Tahsil-Durgkon
dal, District-North Bastar-Kanker (CG)

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2. Bharosa S/o Ramlal Gond, aged about 35 years, R/o Amakada, Tahsil-Bhanupratappur, Distt. Kanker (CG)

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3. State of Chhattisgarh, Through Collector-Kanker, Distt. Kanker (CG)

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---- Respondents

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For Appellants/Defendants :Mr.Prakash Tiwari, Advocate
For Res.No.1/Plaintiff : Mr.Vishnu Koshta, Advocate
For Respondent No.2 : None present
For Respondent No.3/State : Mr.Sanjeev Agrawal, P.L.

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Hon'ble Shri Justice Sanjay K. Agrawal

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C.A.V. Judgment

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1. The substantial questions of law involved,

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formulated and to be answered in this second appeal
preferred by the defendants/appellants herein are as
under:-

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“1. Whether the judgment of the lower
Appellate Court reversing the judgment of

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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 ?”

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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 ?”

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[For the sake of convenience, the parties would
be referred hereinafter as per their status shown
in the suit before the trial Court].

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2. Original plaintiff-Kaniya, son of Gurda, filed a

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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

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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.

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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

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Sai has been appointed by the villagers, as such,

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the suit deserves to be dismissed.

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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.

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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

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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

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confer any right and title to the plaintiff.

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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.

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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.

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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

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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

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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. The trial Court decreed the suit holding that the plaintiff's father was Gayta and priest of two temples from time immemorial ( iq'rSuh rkSj ij ) 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.

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9. On appeal being preferred by the plaintiff under
Section 96 of the CPC, the first appellate Court

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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.

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10.The question for consideration is whether the
first appellate Court is justified in decreeing the

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suit for permanent injunction filed by the
plaintiff?

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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:-

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“ v- ;g ?kksf"kr fd;k tkrk gS fd oknh Hkh xzke vkekdM+k e s 'khryk eanhj dk rFkk BkdqjnkbZ nsoh dk & izfr- 1 tkjsZ o izfr 2 Mksjh es 'kkfey 'kjhd rFkk iqLruh rkSj ij xk;rk ,oa iqtkjh gSA

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c- izfrokfn;ksa dks vknsf'kr fd;k tkrk gS fd os oknh dks nkfo;k 'khryk eanhj ij izfr-1 tkjs o izfr- 2 Mksjh dks 'kkfey 'kjhd dCtk nsosA ”

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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.

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12.It is the case of the plaintiff that his father

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was performing the duty of a priest and Gayta of

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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.

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13. The second substantial question of law

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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.

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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 1).

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15. Their Lordships of the Supreme Court in the matter of Mst. Raj Kali Kuer v. Ram Rattan Pandey 2 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:-

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“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

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2 AIR 1955 SC 493

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1 AIR 1951 SC 293

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Full Bench of the Calcutta High Court in
Manohar v. Bhupendra, AIR 1932 Cal 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,
AIR 1936 PC 318 (B), and Bhabatarini v.
Ashalata, AIR 1943 PC 89 (C).In a recent
judgment of this Court reported as
Commissioner, Hindu Religious Endowments,
Madras v. Sri Lakshmindra Thirtha Swamiar,
AIR 1954 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 Actto

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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.
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......”

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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

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duties. See the observations of Justice
Page in Nagendra v. Rabindra. AIR 1926 Cal
490 (G), at pages 495 and 496 and that of
Justice Sadasiva Aiyar in Sundarambal v.
Yogavanagurukkal, AIR 1915 Mad 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,
herrighttosucceedmustbe
negatived........”

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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 3 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.

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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.

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18. In the matter of Riju Prasad Sarma and others v. State of Assam and others 4 it was held by the Supreme Court that religious believes, custom and practices

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3 (2005) 6 SCC 641

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4 (2015) 9 SCC 461

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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.

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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

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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.

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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:-

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“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) xxxxxxxxx

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(f) A public office cannot be transferred,
nor can the salary of a public officer,
whether before or after it has become
payable....”

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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

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Act. (See Narayanam Seshacharyulu and another v.

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Narayanam Venkatacharyulu 5).

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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).

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22.A decree be drawn up accordingly.

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 Sd/-

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 Judge

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B/-

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5 AIR 1957 Andhra Pradesh 876

Adur ( Dead ) Through Lrs., v. Kaniya Ram (Dead )

Case brief

What is this about?

What did the court decide?

Adur ( Dead ) Through Lrs., v. Kaniya Ram (Dead )

Case brief

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What did the court decide?

What the court decided

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