SHRI KAUSHALENDRA PRAPANNACHARYA Vs. SHRI RAMKISHAN JAJODIYA

JUDGEMENT

(1.) The instant appeal has been filed against the judgment and decree dtd. 24/07/2017 passed by the Additional District Judge, Bilaspur in Civil Suit No.182 A/2008 whereby the appellant has been non-suited by invoking the provisions under Sec. 92 of the Civil Procedure Code, 1908.

(2.) (A) The brief facts of this case are that a declaratory suit for declaration and injunction was filed by Shrinivasacharyaji and Badrinarayan Tripathi. The pleading of the plaintiff shows that in the year 1935 Late Swami Ram Prappannacharya, who was devotee of Lord Vishnu, purchased a land at Juni Line, Bilaspur. Subsequently, a temple was constructed in the year 1941 and Idol of Lord Vyankatesh was religiously installed on 10/5/1945. Late Swami Ramprapannacharya Ji had two followers devotee namely Late Shri Radhakrishna Gadodiya and Late Shri Laxminarayan Agrawal. Shrinathmal Gadodiya who was the adopted son of his brother Shri Sitaram Gadodiya and second son was Madhav Hari. Radhakrishna Gadodiya and Nathmal Gadodiya purchased the adjacent land in the year 1945-46 to the southern part of the temple. Late Ramprapannacharya had one son namely Nrasinghacharya who left four sons out of which two are the plaintiffs.

(3.) Learned counsel for the appellant would submit that the learned trial Court completely misjudged the provisions of Sec. 92 of the CPC. He would further submit that Sec. 8 of the Act, 1951 the civil suit are required to be filed against the finding of the Registrar. He would further submit that the very declaration of the fact that the nature of the trust is a public trust which was directed by an order dtd. 28/01/2008 was under challenge and the plaintiff claimed that it was a private trust, therefore, the provisions of Sec. 92 CPC was misapplied. He would further submit that on the earlier occasion on 13/01/2017 when an application was dismissed under Sec. 92 of the CPC it could not have been adjudicated again by the Court while passing the order of dismissal. He went through the pleading and the prayer to submit that if the finding of the Registrar is set aside by allowing the civil suit, the entire other relief will succumb to it. He placed his reliance in the matter of Abdul Karim Khan and others Vs. Municipal Committee, Raipur {AIR 1965 SC 1744} and Swami Parmatmanand Saraswati and Another Vs. Ramji Tripathi and another {AIR 1974 SC 2141} and would submit that when the case is at the stage of defendant witness, there was no provision to invoke Sec. 92 of the CPC to cause a dismissal. Consequently, the order is liable to be set aside and the case be remanded back to learned trial Court for adjudication afresh.