MAHESH CHANDRA KUKRETI Vs. MAHANT RAMADHAR DAS MAHATYAGI

JUDGEMENT

(1.) THE judgment and order rendered by Additional District Judge, Dehradun dated 11.1.2012 in the Original Suit No. 4/2010 has been challenged in this appeal. By the said order, the plaint of the appellants/plaintiffs was rejected by the learned Court below under Order 7 Rule 11 of the Civil Procedure Code.

(2.) IT is relevant to state brief facts of the matter in controversy. The said suit was instituted after taking permission under Section 92 of the Civil Procedure Code. Such permission was accorded by the learned District Judge, Dehradun on 5.5.2010 after passing the elaborate order mentioning the facts in controversy and the suit was registered in its original side. The defendant Mahant Ramadhar Das Mahatyagi also filed his written statement on 1.7.2010. Issues were framed on 13.9.2011. It would also not be out of place to mention that before framing of the issues, the learned Court below, having heard the learned Counsels of either parties, issued the injunction order on dated 26.8.2011 restraining the defendant from alienating the property in dispute or alteration of its nature or creating any third party interest on the same. Another application 24C2, moved by the defendant to reject the permission so granted under Section 92 of the Civil Procedure Code, was left undisposed of. Feeling aggrieved, the defendant knocked the door of this Court by way of filing the appeal no. 403/2011, which was disposed of by this Court on 27.9.2011 with a direction to the Court below to decide the preliminary issue on the question of maintainability of the suit between the parties. In compliance of the said directions of this Court while deciding preliminary issue, the impugned order was passed by the Court below whereby the plaint itself was rejected as aforestated.

(3.) THE controversy pertains to a temple of Lord Sriram situated in village Uddiwala on the outskirts of Dehradun city in the vicinity of village Kaulagarh. This temple owns a vast land including an orchard (as it once was) having the hundreds of fruit bearing trees. The total area of the land mentioned in Schedule A and B of the plaint is around 12 bighas. It was originally managed and looked after by its Mahant Sri Chandrama Das, who executed a registered Will in favour of the defendant on dated 15.11.1989 and left this mortal world on 23.9.1995. So, after the death of its preceptor, the defendant succeeded him for all purposes vis -a -vis to the temple and its land. With the passage of time, the defendant shifted to Haridwar town and made his abode there as is explicable from the various papers including the registered postal receipts sending notice of the application under Section 92 of the Civil Procedure Code, Vakalatnama filed by him on 20.12.2011 inasmuch as from the affidavit of himself filed on 2.7.2010 wherein he has displayed his address as the resident of Ghanshyam Bhawan, Bhupatwala, Haridwar. It makes it clear that he does not reside in the close vicinity of the temple, but around 70 kilometres away from the same.