TEJ BAHADUR Vs. RADHEY SHYAM

JUDGEMENT

(1.) IN this second appeal by the Defendant No. 1, the only points urged before me are that the property in dispute did not belong to the temple and that the Plaintiff had no right to institute the suit as trustee thereof since he had failed that he had been ever appointed as trustee thereof.

(2.) ID short the suit of the Plaintiff was for a permanent injunction to restrain the Defendant from using the disputed stair case and the land appurtenant thereto. The Plaintiff alleged that the temple of Sri Laxmi Narain Ji Mahraj as family temple had been established by his fore -fathers in the village in question and Defendant No. 2 as the eldest member of the family was managing the same and the other family members were also co -trustees. Extensive properties were endowed in favour of the idol including the property shown as western gate of mandi of Moblaganj which had a stair case towards north as well as towards south of it. On both the sides of that gate, there were rows of shops and the Defendants' shop is situated just the next to the stair case to its north. According to the Plaintiff, this stair case belonged to the temple and the Defendant had no right of either using it for going to the top of his shop or to use the land in front of the flight of stairs towards its east.

(3.) BOTH the courts below have come to the conclusion that the property belong to the temple and for this they have mostly relied upon the own written statement filed by the Defendant in an earlier litigation with another person and his statement in the court in that suit wherein he had admitted that the property belongs to the temple. A faint effort was made before me also to suggest that this suit was not binding on the Defendant as it had been properly explained by the Appellant in his statement in the court below inasmuch as the statement was given at the instance of the Plaintiff himself who was his Pairokar in the earlier litigation. This part of the story has rightly not been believed by the courts below and I also can not agree with this submission. In that earlier litigation, there was no dispute about his stair case or the property belonging to the temple and as such there was no occasion for the Plaintiff to have prevailed upon the Defendant to make any such statement.