AWADESH OZHA Vs. RAMCHANDRA MOURYA

JUDGEMENT

(1.) THE appellants/defendants being aggrieved by the judgment and decree dated 7-12-2005 passed by District judge, East Nimad, Khandwa in Civil Regular Appeal No. 6-A/2004 affirming the judgment and decree dated 2-9-2004 passed by 1st Civil Judge Class-1, Khandwa in Civil original Suit No. 31-A/2000, decreeing the suit of the respondent No. 1 for declaration, mandatory injunction and perpetual injunction against them, have filed this appeal.

(2.) THE facts giving rise to this appeal in short are that the respondent No. 1, herein being discipline and worshiper of Late Swami chandrashekhar Nandji (hereinafter called as "swami Ji") filed a suit for declaration, mandatory injunction and perpetual injunction against the appellants and respondent no. 2 to 4 in the representative capacity with respect of a Tomb of said Swami Ji situated in the Tomb premises of Dadaji Dhuniwale at Khandwa contending that said Swami Ji being disciple of Late Dadaji Dhuniwale while the brother fellow of late Chhote Dada ji Dhuniwale had died in the year 1943, thereafter his Tomb was made in the Tomb premises of said Dadaji Dhuniwale and devotees have also constructed the devotee's premises there. Initially the said Tomb was looked after by Chhabi Narayan Ji the disciple of said Swami Ji by making prayer and offering the foods to such Tomb who died on 17-9-1986. Subsequent to it appellant/defendant No. 3 Mata Prasad Ozha, who was working in the Government Hospital, at burhanpur after his retirement, had come with his family to reside in such premises. On taking objection that the Tomb premises could not be used for residential purpose, the appellant/defendant No. 3 assured to other devotees to vacate the premises on availability of some other place. While residing in such place the appellants are creating the obstructions and inconvenience to the devotees in Darshan and prayer of such tomb. Total area of such Tomb and its premises is at about 920 sq. ft. the same was recorded in the Government record in the name of late Swami Chandrashekhar Nandji but later in view of the working of Chhabi narayan, making prayer and offering to tomb, his name was recorded and subsequent to his death the appellants have come in possession illegally and in such premises got mutated their names in the Revenue record. On account of creating the obstruction and inconvenience to the devotees in darshan of such Tomb by the appellants, the respondent No. 1 being one of the disciple of Swami Ji and devotee of such Tomb, after giving statutory notice to respondent no. 2 to 4 under Section 80 of C. P. C. for rectification of illegal mutation in the Revenue Records and to remove the obstructions created by the appellants at such place, has filed the suit. It is also stated that on earlier occasion the appellants herein also filed a suit for perpetual injunction in respect of aforesaid Tomb premises against the State of Madhya Pradesh, but the same was dismissed in default for want of prosecution. It is also stated that said Tomb and its building being religious place is a center of public sentiments and the emotions. The same is not the personal property of the appellants. With these averments the respondent No. 1 filed the representative suit with a prayer to declare the aforesaid Tomb and it's premises described in the plaint to be a public religious property and, the appellants did not have any right, title or interest in it and the respondent and other devotees had uninterrupted right to go there for making the prayer and offer, in pursuance of it the mandatory injunction for removing the appellants' obstruction and vacating the premises and to rectify their mutation with a prayer of perpetual injunction restraining the appellants from interfering or creating any obstruction in entrance of the respondent No. 1 and other devotees of the Tomb for making their prayer and offering to such religious place are prayed.

(3.) IN the written statement of the appellants, it is stated that devotees of Swami had not made any construction in such Tomb, the same was looked after by Chhabi narayan Ji Ozha, who was the disciple of said Swami Ji and after demise of Chhabi naraya Ji the appellant Awadesh Ozha is looking after the same as his personal property. In the same premises, the appellant awdhesh Ozha is running a shop and whenever the shop remains open at that time such tomb premises also remains open. Said chhabi Narayan was the nearest family member of the appellant, hence after his demise the name of appellants are correctly/ rightly mutated in the Revenue Record as per custom of the family. It is further pleaded that the respondent No. 1/plaintiff being a naughty person did not have any right to file the suit and no order could be passed contrary to the title and the possession of the appellants with respect of aforesaid their family land and the building, as such the respondents/plaintiffs did not have any cause of action against the appellants. Apart this by denying the other averments of the plaint the prayer for dismissal of the suit is made.