UGAMSINGH & MISHRIMAL v. KESRIMAL & ORS
Citation: [1971] 2 S.C.R. 836; 1970 INSC 241
Court: Supreme Court of India
Bench: J.M. SHELAT , C.A. VAIDYIALINGAM, P. JAGANMOHAN REDDY
Judgment date:
Case summary
1970 INSC 241. Supreme Court of India judgment dated 1970-11-26. UGAMSINGH & MISHRIMAL v. KESRIMAL & ORS. Read the judgment and case details on LawSphereX.
Judgment text
s 38 SUPREME COURT REPORTS [1971] 2 S. C. R. 8:l6 UGA! V. SINGH & MISHRJMAL v; KESRIMAL &' ORS, · November 26, 1970 [J. M. SHELAT, C. A. VAIDIALINGAM AND P. J~GANMOHAN REDDY, JJ,j Worship-Right of-If of a civil nature for which suit maintldnab/e- Idol o; Adeshwarji in temple at Paroli-If idol of Digambri or Swetambri Jain set-'~ idol. Respondents l to 9 filed a suit against the Appellants and some of the -Other respondents. for a declaration that they had been carrying on, and were entitled to the worship without interfer~nce df the idol of Adeshwarji in the temple n•med after him at Pa. roli according to tOO tenefs observed by the Digambri Sect of the Jain religion. They forther alleged : that the temple was constructed and th,e idol consecrated according to and by the followers of their sect; that in December, 1949, the defendants had attempted to convert the said idol into tne idol of the Swetarnbri Sect by putting Chakshus (artificial eyes) thereon, but were prevented due to. .
strong opposition of the 'followers of Digambri Sect. It was claimed that although a temparary settlement was reached between the two sects while - the rights in the temple were to be adjudicated upon by a Civil Court, the defenda~ts had made arrangements to alter the temple according to their tenets and that they were intending to enclose the idol by doors and locks with the object of interfering with the free exercise of a Digambo·is' right to worship the idol. It was therefore prayed that the defendants be res- ,, trained by a permanent injunction from altering the nature :md shape and appearance o'f the idol in any manner or from doing any act which would interfere with the right of worship of the followers of the Digambri Sect. The defendants denied that the Digambri Sect had any right of worship of the idol or had ever exercised such a right arid contended that the idol and the temp. le is in all respects a temple of the Jain Swetambri Sect.
The Trial Court decreed the suit and the District Judge in appeal as well as the High Court 'confirmed the decree, The High Court al. so fixed three hours a day when the Digambris may use the temple 'for worship. In appeal to this Court, it was contended inter alia on behalf of the appellant that the reliefs claimed made it clear that the dispute was not of a civil nature; and that the judgment of the Trial Court was wholly vitiated because the Trial Judge not having accepted the. evidence produced before him, based his findings on his own inspection. It was also contended that unless the ownership of the temple was established or that the idol belonged to the f)igambri Sect, no injunction could be given nor could the respondents be ;;ermitted to worship there; in the plaint the respondents had averred that the idol is a Digambri idol and as they had failed to prove this, their right to wdrship also failed.
HELD : Dismissing the appeal, (i) From the pleadings and the controyersy between the parties it was clear that the issue was not one which was confined merely to rites and rituals but one which effected the rights of worship. If the Digambries have a right to worship at the temple, the attempt of the Swetam- MISHRIMAL v. KESRI,MAL (laganmoha~ Reddy, I. ) 837 beries to put Chakshus or to place Dhivajadand or Kalash in accordance with :'leir tenets and to claim that the idol is a Swetamberi idol was to preclude the Digamberies from exercising their right to worship at the temple, with respect to which a civil suit is maintainable under Section 9 of the Civil Procedure Code. This position is well established. [843 BJ Sir Seth Hakam Chand & Ors. vs. Mahara; Bahadur ·Singh & Ors. , 60 I. A. 313 and Nar Harl Sastri and Ors. vs. Shri Badrinath Ter. 1ple Com· mi1Yee, (1952) S. C. R. 849, referred to.
(ii) While givilng his findings the Trial Judge remarked that the evidence led by the Plaintiffs appeared to be correct. These observations themselves show that the evidence on record was an element in the formu- · lation of the Trial Court's judgment buttresed by the obseriations of the learned Judge· during the site inspection. It was clear that ·the description given by the learned Judge of the idols in the Adeshwarji Temple and tlie Temple of the Swetemberies were observations made during an inspection at which both the Plaintiffs and Defendants Advocates were pre1ent and that there must have been notes also in respect of the inspection made on · both the occasions. There was therefore no validity in the contention that the finding of the Trial Judge was based entirely on the result of his inspection. [844 G-845 · CJ (iii) The concurrent findings of the' Courts below that the idol was 'Nirkar' .
(naked), that there were no Chakshus, no Mukai, no Armlet, no Dhwajadand or no Kalash, would show that the idol was consecrated by the Digamberies. It was also clear that it was an ancient temple and that both the Digambcries and the Swetamberies worship the idol. It . was not denied that while the Digamberies will not worship an idol which has Chakshus or which has clothes or Mukai, the Swetamberies woul4 worship a Digambe'ri idol without these and hence the right to worship a Digamberi idol by both the sects is possible and it has been rightly . so held by all the courts. [846 El Once the right Of worship of Digamberies was . established they would be entitled to the injunction sought for . by them against the Appellants from preventing them from worshipping or ·from inferfering with that right by placing Chakshus in the idol, D)jwajadand, Kalash on the Temple.
The directions of the High Court extending the time for worship by Digamberi Sect from one hour to three hours was not unreasonable. [848 A-Bl CIVIL APPELLATE JURISDICTION : Civil Appeal No. 158 of 1967. Appeal by special leave from the judgmQnt and order dated August 5, 1966 of the Rajasthan High Court in S. P. Civil Regular Second Appeal No. 222 of 1964. S. T. Desai, P. C. Bhartari, /. B. Dadachanji and Pukhraj Singh, for the appellant. S. V. Gupte, K. K. lain and H. K. Puri, for respondents Nos. 1 to 9. Tht Judgment of the Court was delivered by P. Jaganmoban Reddy, J. This Appeal by Special Leave ot this Court is against the Judgment of a Single Judge of the Rajas-than High Court affirming the Judgment and decree of the District .. ' Court with certain variations. Respondents 1 to 9 filed a suit against the Appellants and Respondents 10 and 11 and two others for a declaration that they have been carrying on and are entitled to carry on Darshan, Prakshal and Poojan etc.
of the idol of Adeshwarji, the first Tirthankar in the Temple named after him at Paroli without interference according to the tenets observed by the Digambri Sect of the Jain religion. The said Temple of Shri Adeshwarji is said to have been in exP. ;tence for 200 years while the Respon- . den1s aver that the inscriptions on it bear Vikram Samvat 1510 (1454 AD). The Plaintiffs further alleged that the Temple was constructed and the idol was consecrated according to and by the followers of the.
tenets of the Digamber sect; that the Plaintiffs and the other followers of the Digamber Sect have been performing Darshan, Prakshal and Poojan of the sa;d idol according to their tenets eversince the Temple was founded; that on the 23rd of December 1949 the Defendants attempted to convert the said idol into the idol of Swetambri Sect by putting Chakshus (artificial eyes) 'thereon, but were prevented from doing so by a strong opposition of the followers of the Digamber Sect; that thereafter ~ome tern· porary arrangements were made between the followers of the two Sects who agreed to maintain the status-quo until a decision of the Civil Court on the rival claims of the parties was given; that in disregard of the temporary settlement and without getting the rights in the Temple adjudicated upon by the Civil Court, the Defendants made arrangemenis to put Dhwajadand and Kalash on the said Temple according to their tenets, and that they also further learnt that the Defendants were intending to enclose the said idol b) putting up doors and locks with the object of interfering with and obstructing the free exercise by the Digamberies of their unfettered rights to perform Poojan, Prakshal and worship oj' the said ido according to their tenets.
On these allegations it was prayed that the Defendants be restrained by a permanent . injunction from (i) erecting the Dhwajadand and· putting up Kalash; (ii) enclosing the idols by putting up doors and locks; or in any m~'nner altering the nature and shape and appearance of the idols installed in the said Temple; or directly or indirectly doing any act or thing which may have the effect of wounding the religious susceptibilities and sentiments of the followers of the Digamberi-Jain Sect; and (iii) from interfering with the free and unfettered rights of the Plaintiffs of performing Darshan, Prakshal and Poojan and other rites according to the ter.. ets of D! gamber Jain Sect. MISHRIMAL v. KESRIMAL (Jaganmoharl. Reddy, J. ) 839 The Defendants did not deny that they intended to put the 'Netras' but said that they did so because the Netras which the idol had even before the said date having been damaged and fallen out, new Netras were put up.
They further clai'lled that since its existence the Temple of Adeshwarji has been in the possession of the Defendants who have been in exclusive management of the Temple and its property; that the Plaintiffs never used to do Poojan or Prakshal in the Temple nor had they any right thereto, and that when in 1949 there was a dispute between the parties a temporary arrangement was made but the Defendants did not admit any right of Plaintiffs to Poojan. It was further avered that the said idol and the Temple is in all respects Jain Swetambri Sect, that it has been so used and described in all the historical records from tiine to time and that the Civil Court had no jurisdU:tion to decide the religious rights of the parties nor is it a dispute of a civil nature. On these pleadings issues were framed on 3-12-55 but subse· quently after the evidence in the case was r~orded and having regard thereto .
fresh issues were framed in substitution of the former ones on 4-6-57 but thereafter no evidence was led by either party. The controversy between the parties as is evident from these issues was, as to which Sect of the J ains the main idol of Adeshwarji belongs, which Sect has constructed the upper portion . of the idol referred to and the nearby portion of the temple; under Ill what tenets have the followers of the SectS, Digamber and Swetamber, performed Darshan, Prakshal and Poojan of the idol or the tempi!! referred to and can any Sect change those previous . tenets; whether the Netras (artificial eyes) of the idol, Bhujband llD4 Dhwajadand over the temple existed before and if not, can I. hey be placed and inserted now; and whether the Temple is in r 1S'S91S5ioli. and. under t~e ma~agement of the Defendants alone fi:om the time 1t cam•mto extstence. The Civil Judge of Bhilwara decreed the suit of the Plaintiffs, against which the Defendants appealed.
The District Judge, however, allowed the appeal and dismissed the suit on the ground that in his opinion no question of any right to property or office 6 was involved in the suit and consequently the plaintiffs suit was dismissed with costs. On an appeal trom this Judgment the High Court allowed the Appeal holding that in-as-much as the allegations in the plaint relate to . an assertion· of a right of worship and an interference with that right, a dispute of civil nature. arises which is clearly ci>gnizable by aCivil O>urt. I. n. this view the case w~ remanded to the District Judge for deterrnmmg the appeal on ments. Leave to Appeal was also refused. After remand the District Judge confirmed the Judgment and decree of the Trial Court with certain variations. Against this Judgment the Appellants filed ari appeal to the High Court and the Respondents filed cross objections.
The High Court affirmed the Judgment of the District Judge except for that part of the decree directing the Appellants to keep open the doors of the Temple between 8. 30 and 9. 30 each morning to enable the Respondents to worship without interference, which, however, was modified to enable Respondents to worship at the Temple between 6 a. m. to 9 a. m. every -morning, during which time the Temple was not to be locked. It further directed that if the Swetambaries wanted also to worship during this period without disturbing the Digamberies they had the liberty to do so. The learned Advocate for the Appellants Shri S. T.
Desai urged several contention before us namely; (i) the High Court was in error in not deciding the ownership of the Temple or of the idol; (ii) that it should have held that a presumption of ownership would arise having regard to the concurrent findings that the Swetamberies were in management and possession of the I> Temple; (iii) that the reliefs claimed make it clear that the dispute is not of a civil nature for in any view of the matter the Courts were in error that placing of the Dhwajadand and Kalash ori the Temple changes the nature of the temple; (iv) that the High Court should not have accepted the cross appeal fixing 3 \ hours time for the worship of the Digamberies Sect: (v) that the Judgment of the Trial Court is wholly vitiated because the Trial Judge not having accepted the evidence based his findings on his own inspection.
Before as deal with these contentions, it is necessary to detail the findings of the Courts below : The Trial Court while decreeing the Jllaintiff's suit held that though it was not proved as to who built the Temple of Adeshwarji initially, both Digamberies and Swetamberies worshipped in the said Temple; that the management and the possession of the Temple was with the Defendants Swetamberie;:. for a long time, that the Swetamberies were not entitled to ·put artificial eyes or to put Dhwajadand or Kalash on the Temple; and that the Defendants were tryirig to interfere with the rights of. the Plaintiffs' and· were making alterations to transform the character of the Temple. In !
his view the Trial Judge gave a declaration in favour of the Plaintiffs against Defendants in their personal capa-city as well as representatives of the Jain Swetamberies Sect that the Plaintiffs or the followers of the Digamberi Sect have been performing Prakshal, Poojan and Darshan and are also entitled to do so in future. He also issued a permanent injunction against the Defendants in their personal capacicy as well as representative th . the Digamberies and the Swetamberies worship the idol. It is · not denied that while the Digamberies will not worship an idol which has Chakshus or which has clothes or Mukat( the Swetamberies would worship a Digamberi idol without' these and hence the right to worship a Digamberi idol by both the sects is possible and indeed has been so held by all the Courts. Even the Defendants' witnesses substantiate these findings. We would refer to only two of these witnesses. Shri Suwa Lal D. W.
4 even though he says that the Temple belonged to the Oswals in which he and his father has been performing Sewa for the last 30 or 35 years on behalf of the Oswals (Swetamberies) admitted that since he attained the age of discretion and upto the time of giving evidence he had never seen Adinath ji wearing clothes, never saw the idol with eyes and had never seen Dhwajadand or · Kalash on the Temple and does not know whether the idol belongs H. to Oswals or Saravagis (Dfgamberies). D. W. 3-Shri Fokhar a barber of Oswals also supports this witness. That the Digamberies had a right to worship is also borne out by Ex. 1 dat~ MISHRIMAI. v. KESRIMAL (Jaganmohan Reddy, /. ) 847 23-12-49 which was a compromise entered into between Swetam-· beries and Digamberies at the time when the Swetamberies-attempted to put Chakshus in the idol.
No doubt this was an interim arrangement till the decision of a Civil Court adjudicating the respective ·rights, but there was never any question of either Sect not having the right to worship the idol. The dispute had· arisen only as to whether Swetamberies can fix Chakshus in the• idol. Exh. 1 states as follows : "We Panchas give this award that a dispute had arisen between the Swetamberies and Digamberies as Swetamberies recently fixed eyes on the idol. This new thing should not continue. These eyes should be removed. Digamberies have a right to perfonn Poojan so they can mark saffron 'Tiki' and have Darshan and come back. Digambries will not perfonns Prakshal, Poojan. Swetamberies will continue incurring expenses as usual. The idol shall remain nacked (Nirakar)" The representatives of both Sects have signed this award, as a temporary measure agreeable to both the Sects, who indicated that they would press their rights in a Civil Court.
Once the right of worship of the Digamberies is established there is little doubt that they are entitled to the injunction sought for by them against the Defendants Appellants from prevening them from worshipping or from interferring with that right by placing Chakshus in the idol, Dhwajadand, Kalash on the Temple. In view of these findings the further question that when once it ha8 . been found that the Swetamberies have the right of management and possession of the Temple there is a presumption of owner-· ship under Sec. 110 of the Evidence Act does not arise nor is it relevant. It is no doubt contended by the Respondents Advocate that when consecration of an idol takes place the ownership of the Temple is in the idol and therefore, the question of presum· tion under Sec. 110 does not arise.
It is again contended by Shri Desai that the moment it is held that it is not possible to come to a conclusion as to which Sect the idol belongs, as has been held by the Court below, the Respondents cannot be allowed to object to the Appellants worshipping the idol according to their tenets. This contention, however, in our view ignores the rights of the Digamberies to worship inaccordance with their tenets. If . the contention of the learned Advocate for the Appellants is accepted it will be tantamount to holding that Digamberies have no right to worship as there would denominal change in the idol if the Swetamberies are held to have the right to worship it according to their tenets by placing Chakshus in the idol or by erecting their Dhwajadancfor Kalash over the Temple. Lastly it is urged that the High Court ought not . to have A ·entertained the cross objection by extending the time for worship from 1 hour to 3 hours.
In our view the directions of the High Court are not unreasonable nor do they in any way affect the right of the Respondents to worship because the directions clearly ·enable the Swetamberies who wish to worship the deity within that period without disturbing the Digamberies to be at liberty to B . do so and likewise it will be open to Digamberies to go and worship in the temple during the period it is kept open. In view of the accute controversy between these 2 sects and their reluctence to arrive at an amicable settlement the directions given by the High Court are manifestly reasonable just and proper. In this view the appeal fails and is dismissed with costs. c . R. K:P. S. Appeal dismissed .
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