MARWARI KUMHAR Vs. BHAGWANPURI GURU GANESHPURI

JUDGEMENT

(1.) This Appeal is against the Judgment dated 3rd October, 1985 by which the Second Appeal filed by the Appellant (herein) has been dismissed.

(2.) Briefly stated the facts are as follows: The appellants are representing Marwari Kumhar Community of Dewas. The suit was filed in a representative capacity. The Marwari Kumhar Community were holding religious functions in the temple and were using the Dharamshala situated on the suit property. They had engaged one Ganeshpuri, who acted as a Pujari. The said Ganeshpuri died on 11th of February, 1945. The son of Ganeshpuri (who is respondent No. 1 herein) and the wife of Ganeshpuri (who is respondent No. 2 herein) started claiming ownership to the property. Therefore, the Community filed a representative suit, sometime in December 1945, for a declaration of their title. They also claimed in that suit that they were entitled to keep on performing their religious functions and to use the Dharamshala as they always have been doing. At that time 1st respondent was a minor. He was therefore represented by his guardian i.e. his mother. The 2nd Respondent had also been sued in her individual capacity. In that suit the Respondents took up the contention that the suit property was owned by Ganeshpuri. They claimed that the Community had no right title or interest in the suit property. The suit came to be decreed in favour of the Community. It was specifically held that Ganeshpuri and the respondents were mere Pujaris. Against this decree the respondents filed an appeal. That appeal was allowed. The community filed a second appeal before the then High Court of Dewas. That second appeal was allowed on 7th May 1948. The decree of the trial Court was restored by the High Court.

(3.) It would appear that sometime thereafter the respondents again started asserting their title. Therefore the present suit, for, possession of the property, was filed on 7th of December, 1960. In this suit it had been claimed that the 1st respondent had executed a Nokarnama on 31st October 1948. The appellant/plaintiffs had lost all their papers. They therefore relied upon an ordinary copy of the Judgment in the earlier suit and a certified copy of the decree in that suit. The Nokarnama was also lost and only oral evidence was led about it. The respondent/defendants again claimed that Ganeshpuri was the owner of the suit property. They claimed title to the suit property as his heirs. They claimed that they and their predecessor i.e. Ganeshpuri were in open, adverse and hostile possession since long and that in any event they had acquired title by adverse possession. They claimed that a suit for possession was barred by provisions of Order 2, Rule 2, Civil Procedure Code in as much as in the earlier suit relief for possession should have been and was not claimed. They also claimed that the suit was barred by limitation.