CHINNUBHAI CHANDULAL PARIKH Vs. DHANYAKUMAR MOTIRAM BELOKAR

JUDGEMENT

(1.) THE dispute which is the subject matter of this revision application is an off shoot of another long standing dispute between Digambari and Swetambari sects of Jain. In Sirpur, taluq Washim, District Akola, there is a temple of Autarkical Parshwanath in which admittedly there is an idol of Devi Padmawati. It is the right to worship this deity of Devi Padmawati that gave rise to an apprehension of breach of peace and tranquillity resulting in the Sub Divisional Magistrate, Washim, passing a preliminary order Under Section 147 (1) of the Criminal Procedure Code. The party No. 1 belonged to Digambari sect of Jains, while the party No. 2 belonged to the Swetambari sect. Before the Sub Divisional Magistrate the contention on behalf of the party No. 1 was that the idol of Devi Padmawati in the said temple has been worshipped exclusively by Digambaris and that the party No. 2 have no right to worship of that deity. On the other hand, the party No. 2 claimed that the deity of Padmawati was really installed by the Swetam-baris and that it was an Adhistayak Devta of Shri Antariksha Parshwanath Maharaj and worshipping of that Devta is an integral part of worshipping of the main deity of Shri Antariksha Parshwanath Maharaj. Their further case was that even with regard to this deity of Padmavati, the rights of the Swetambaris and the Digambaris were regulated by an earlier decision given by the Privy Council, arising out of Civil Suit No. 4 of 1910, which was reported in Honasa v. Kalyanchand, 25 Nag LR 163 : (A. I. R. 1929 PC 261 ).

(2.) BOTH parties filed affidavits of several persons and some documents were also filed by them. The Sub Divisional Magistrate inspected the spot on 16th January 1969 and he found that none of the Alankar of the deity were Swetambari, as, according to him, the silver Chandoda, the brass Nandadeep and bronze bell and the copper plate indicated that they were offerings of Digambar pilgrims. On perusal of the material which was put before the Sub Divisional Magistrate and a part of which consisted of certain statements made by some witnesses in Civil Suit No. 4 of 1910, the learned Magistrate came to the conclusion that the Swetambaris had failed to prove that they had purchased the idol because, even though accounts had been maintained for a long period, there was no evidence to show when the idol was consecrated. He referred to the depositions of certain witnesses in Civil Suit No. 4 of 1910 and on the basis of the statements made in that case he came to the conclusion that the idol of Devi Padmawati, from its appearance and its condition, belonged to the Digambaris and was a Digambari Goddess. In order to show that the Swetambaris had not worshipped the idol of Devi Padmawati within a period of three months from the date of the preliminary order, the learned Magistrate also referred to certain statements made by one Malchand Ganeshlal in an. earlier proceeding Under Section 147 of the Criminal Procedure Code. He rejected the affidavits filed on behalf of the party No. 2 and found that two witnesses on behalf of the Swetambaris had disowned their deposition and Sam-shersing and Jagannath Zangoji were the employees of the Swetambaris. The affidavits of other persons Ganeshrao, Mul-chand and Chunibhai were also rejected on the ground that they were employees of the Swetambaris and he observed that Malchand had admitted before the Taluq Magistrate in an earlier proceeding Under Section 107 of the Criminal Procedure Code that he had only nodding acquaintance with the English Language and yet, according to the learned Magistrate, the affidavit has been sworn in English. The entries from the account books filed on behalf of the party No. 2 were rejected because, according to the learned Magistrate, there was no evidence corroborating the entries made in the account books. Having thus rejected the affidavits and the documents filed on behalf of the party , No. 2, the learned Magistrate found that the alleged right had been exercised exclusively by the party No. 1 within three months from the institution of the said enquiry and he ordered that the party No. 2 or any one in their interest shall not attempt in any manner whatsoever to exercise such right of worship until they obtain a decree or order of a competent Court adjudging them to be entitled to such right.

(3.) AGAINST this order the party No. 2 filed a revision application, which was decided by the Additional District Magistrate, Akola. The Additional District Magistrate held that the decision of the Privy Council in the earlier proceedings did not deal with the alleged right to worship Goddess Padmawati and that the controversy in that case related exclusively to the right to worship and manage the main deity, namely, Antariksha Parshwanath Maharaj and he held that the Privy Council judgment, which merely gave a right to worship to both the sects in the temple, did not conclude the question about the nature of several deities in the temple, including that of the marble idol of Devi Padmawati. A contention was raised before the Additional District Magistrate that the evidence of witnesses taken from Civil Suit No. 4 of 1910 could not be referred to in the present proceedings. He referred to the earlier statement made by the counsel for the Digambaris before him that those witnesses had died long back, and therefore, according to the learned Additional District Magistrate the evidence of those witnesses, which was against the interest of their sect, could reasonably be accepted as testimony of dead persons. On the merits of the question the Additional District Magistrate declined to interfere with the appreciation of evidence by the Sub Dvisionat Magistrate. It was argued before him that the Sub Divisional Magistrate had not taken any evidence and that he could not decide the matter on affidavits. The Additional District Magistrate took the view that Section 147 (2) of the Criminal Procedure Code made the Provisions of Section 145 thereof applicable in the case of such an enquiry, and therefore, giving of evidence by affidavits was permissible. He thus declined to interfere with the order passed by the Sub Divisional Magistrate and rejected the revision application. The party No. 2 has now filed this revision application.