KAPOOR CHAND Vs. GANRSH DLTT

JUDGEMENT

(1.) We have heard learned counsel for the parties. We hereby grant special leave in SLP (Civil) No. 12981 of 1987 which is directed against the judgment of the Rajasthan High Court dated July 23, 1987 in S.B. Civil Second Appeal No. 123 of 1979, and proceed to dispose of the appeal.

(2.) This appeal arises out of a suit filed by the appellants wherein they had challenged the sale of a shop by Ganesh Dutt, respondent No. 1, in favour of respondents Nos. 2 and 3 under sale deed dated October 14, 1968. The suit was brought by the appellants in a representative capacity as worshippers at the temple of Shri Radha Govindji situate at Bharatpur. The appellants have claimed that the said temple is a public temple and that respondent No. 1 was manager of the said temple. It was claimed that the shop in question, which belonged to Laxmi Narain, had been dedicated to the deity by his widow, Shrimati Bhagwati Devi, and that its income was in fact used for the expenses of 'Bhograg' of the deity and that respondent No. 1 had no right to sell the same and the said deed dated October 14, 1968 executed by him in favour of the respondents Nos. 2 and 3 was null and void. The said suit was contested by the vendees, respondents Nos. 2 and 3 as well as by the vendor, respondent No. 1. Respondent No. 4 who was a tenant in the said shop admitted the claim of the appellants. The contesting respondents pleaded that there was no such temple as that of Shri Radha Govindji and that it was a place of private worship established by Shrimati Bhagwati Devi. It was asserted that the suit shop was never dedicated to the deity. It was further pleaded that even if there was any such dedication by Shrimati Bhagwati Devi, it had no effect in law because Shrimati Bhagwati Devi had already taken Ram Babu in adoption. The said suit was decreed by the Additional Civil Judge No. 1, Bharatpur, on the view that the temple of Shri Radha Govindji was a public temple and that the suit shop had been dedicated in favour of the temple and Ganesh Dutt, who was only a manager, had no right to sell the shop. On appeal, the Additional District Judge, Bharatpur, affirmed the finding of the trial Court that the temple was a public temple The appellate Court, however, held that the suit shop belonged to Laxmi Narain, the husband of Shrimati Bhagwati Devi, and after the death of Laxmi Narain, Shrimati Bhagwati Devi had adopted Ram Babu in 1926 according to wishes of her deceased husband Laxmi Narain. As regards the suit filed by Shrimati Bhagwati Devi for cancellation of the adoption of Ram Babu wherein an ex parte decree was obtained it was found by the appellate Court that Ram Babu was a minor and was impleaded through his natural father, Shri Nawal Kishore, as guardian and that Nawal Kishore did not contest the suit and did not appear in the Court and that the procedure contained in. O. 32, R. 3, C.P.C. was not followed and, therefore, the ex parte decree in that suit was void ab initio and could not have the effect of cancelling the adoption of Ram Babu by Shrimati Bhagwati Devi. The appellate Court, therefore, held that Shrimati Bhagwati Devi had no right to dispose of the property of her deceased husband in the presence of adopted son Ram Babu and she could not dedicate the suit shop in favour of the deity. The appellate Court was also of the view that the dedication of the suit shop by Shrimati Bhagwati Devi was not proved by evidence on record and that the plaintiffs had failed to establish that the suit shop belonged to the temple. In view of the said findings, the appellate Court reversed the judgment and decree of the trial Court and dismissed the suit. The High Court, in second appeal, has upheld the said judgment and decree of the Additional District Judge. S.L.P. (Civil) No. 12981 of 1987 was filed against the said judgment of the High Court dated July 23, 1987. The appellants also moved a review petition in the High Court for review of the judgment dated July 23, 1987. The said review petition was dismissed by the High Court by order dated December 14, 1990, S.L.P.(Civil) No. 6544 of 1992 has been filed by the appellants against the said order on review petition.

(3.) We will first deal with appeal arising out of S.L.P. (Civil) No. 12981 of 1987 which is directed against the judgment dated July 23, 1987. In this context, it may be mentioned that the High Court has agreed with the finding recorded by the trial Court as well as the Additional District Judge that the temple is a public temple. The only question which requires consideration is whether the suit shop has been dedicated to the deity and it belongs to the temple of Shri Radha Govindji, and the respondent No. 1 was only a manager of the temple and its properties including the said shop. The appellants have adduced evidence to show that: