MAZANIA SHRI NAVADURGA TEMPLE Vs. GOVIND SHABLO GAVDE

JUDGEMENT

(1.) THIS Second Appeal is directed against the judgment of the learned Additional District Judge, Panaji, dated 19th February, 1987, in Civil Appeal No. 128 of 1984 which has affirmed the Judgment of the Civil Judge, Senior Division of Bicholim dated 18th June, 1984 in Special Civil Suit No. 62 of 1974.

(2.) THE matter is relating to the Temple of Shri Navadurga at Bicholim which is the appellant. The said Temple of Navadurga has different affiliated Temples and one of them is the Temple of Mallikarjun situated at Pale village near Usgao. The plaintiffs who are the now respondents filed a suit for declaration that the Temple of Mallikarjun which is shown in the "compromisso" of Navadurga Temple as one of its affiliate Temples (filial) belonging to them in ownership and that they were the Mahajans of the Temple. A further prayer was also added to the effect that it should be declared that the Bye-laws the Navadurga Temple would not bind on the Zolmi family to which class the plaintiffs belong. The suit was filed in a representative capacity. The appellants are the original defendants while the respondents are the original plaintiffs Nos. 3, 4 and 6, respectively. However, by Order dated 16-4-1992 passed in Miscellaneous Civil Application No. 131 of 1992 the respondents Nos. 2 and 3 were deleted. The suit was instituted for a declaration that the Mallikarjun Temple belongs to the Zolmis as its Mahajans and that the Bye-laws of the Navadurga Temple are not binding upon the Zolmi family. By judgment and Order dated 18th June, 1984, the learned Civil Judge decreed the suit as per the respondents prayer.

(3.) THE appellants case is that as per the "regulamento Das Mazanias" which is the law governing all the Hindu Temples in Goa any Temple requires the approval by the Government of its "compromisso" which is the Memorandum of Association prepared for the constitution of its own Mazania, that is to say, the Association of the faithful of the concerned Temple. As such the "compromisso" of Navadurga Temple was approved by the Government on 1-4-1930 by Portaria No. 869 dated 16th December, 1929 published in the Government Gazette (Boletim Official) No. 26 dated 1-4-1930 wherein it is shown that Mallikarjun Temple is one of its affiliate Temples (filial ). As per the "compromisso" there are two types of Mahajans, namely, Dalvis and Gaunsos. Zolmis to which class the plaintiffs/respondents belong are indicated as servants of the Temple of Navadurga and of its affiliate Temples in the respective "compromisso". Likewise the Zolmis there are also other servants shown as such in the "compromisso" who are bound and render also different type of services to the Temple of Navadurga. Therefore, the Zolmis are not the only class of people shown as servants of Navadurga Temple. In the same "compromisso" duties of each class of servants are mentioned, however, no express duties have been assigned to the Zolmis in the aforesaid "compromisso". The Temple of Mallikarjun is situated in a property by name "bamiem" surveyed under No. 284 in the old survey (Cadastro ). It is the plaintiffs case that they are the owners of the property "bamiem" along with the Temple. The appellants led evidence to show that the property "amrai" which is also part of Survey No. 284 like "bamiem" is belonging to Navadurga Temple from or even prior to 1930. The appellants have further pleaded that the survey of Pale village was not put to objections and has not become final. Although property "bamiem" is entered in the Land Survey Department under No. 284 in the name of Mallikarjun Temple it was submitted that the entry of the survey is not correct. It was also stated that the part of property No. 284 known as "amrai" belongs to the Dolvis and is in their possession. This portion of "amrai" is the eastern portion of Survey No. 284 while property "bamiem" is its western portion. Through the property "amrai" there passes a public P. W. D. road which crosses it from north to south so that one portion of "amrai" lies to the east of the road while the other portion is situated to the west. Between "amrai" and "bamiem" there was an old road (cart road) signs of which are still found on the site. The road passing through "amrai" was opened sometime in 1933 or 1934. The acquisition for the purpose of the road was published in the Government Gazette No. 104 dated 27-12-1934. The portion of "amrai" acquired has been mentioned therein as "primeiro Troco" and as belonging to Mahadev Subraia Dolvi. The compensation for acquisition of that land was also paid to the Dolvi family. Besides the entry of the property "bamiem" in the name of the Mallikarjun Temple is wrong and the old survey has not been promulgated or closed. The construction against which the plaintiffs have reacted and put up by one Prabhakar B. Chodankar which gave rise to the institution of the suit was not the first one erected in the property "amrai". Earlier to that constructions were also done by one Dadi Malo and also for an English School in the property "amrai" for which there was no objection at all. Besides in other parts of "amrai" there had been two houses of Vinayak Dolvi and a Marathi School built by the Village Panchayat. These complete constructions were done much earlier to the objection raised by one Tulsidas Gauddo against Prabhakar Chodankar. As the said Tulsidas had not succeeded to stop Prabhakars construction because in the meantime the said Prabhakar filed a suit for permanent injunction in the Court of Bicholim wherein a temporary injunction was granted restraining the Zolmis from raising any obstruction to his construction he subsequently filed three more suits against persons to whom Dolvis had sold pieces of property "amrai". It was also stated by the appellants that in the property "amrai" there were military barracks during the Portuguese time which were built by Military authorities with Dolvis permission some six to seven years prior to Liberation. There also exists some cinema theatre from 1963 from which rent is paid to Dolvis family.