SHER SINGH Vs. MURTI MAHADEV

JUDGEMENT

(1.) Murti Mahadev situated in Mandir Mahadev village Barna tehsil Kaithal through Madho Dass who claimed himself to be the de facto Manager and guardian of the deity installed in the Mandir filed a suit for permanent and mandatory injunction. Madho Dass alleged that he is the worshipper of the Murti and de facto Manager of the temple. He is in possession of agricultural land measuring 13 Kanals 14 Marlas on behalf of the temple. The possession of the temple over the land is from times immemorial, and has been enjoying its usufruct. Ram Kishan against whom an earlier suit was filed by the plaintiff and defendant No. 2 was threatening to take possession of the land aforesaid by force and wanted to raise construction thereon. It is alleged that Ram Kishan deceased conspired with the other defendants and all of them in collusion with each other encroached upon a part of the suit land by putting malba thereon. Ram Kishan covered area marked 'E' in the plan attached with the plaint, while defendants Nos. 2 and 3 encroached upon the area of the land in dispute marked 'F' in the plan and defendant No. 4 likewise encroached upon the space marked 'G' while defendant No. 5 encroached upon the part of the land shown marked 'H' in the plan. During the pendency of the suit Ram Kishan died and his legal representatives were brought on the record. The suit was resisted by the defendants. They pleaded that the plaintiff had earlier filed a suit against Ram Kishan and defendant No. 2, but the same was dismissed, and as such, the instant suit was barred by the principle of res judicata and estoppel. It was alleged that Madho Dass has no locus standi to file the suit because he is neither the Manager nor the guardian of the temple. Some other technical objections were also raised with regard to the character and description of the suit property in the plaint, non-maintainability of the suit in the present form and for its multifariousness. A claim was set up by the defendants that they were in possession of the suit land for more than 30 years and were enjoying the same openly, continuously and in a peaceful manner and had thus become its owners by adverse possession.

(2.) On the basis of the pleadings of the parties, the learned trial Court framed the issues, received evidence and ultimately decreed the suit of the plaintiff-respondent No. 1. The defendants being dissatisfied filed an appeal which, however, failed and was dismissed by the learned Senior Sub-Judge, Karnal with enhanced Appellate Powers vide judgment and decree dated 17.10.1977. Two defendants have thus filed the present regular second appeal while the remaining defendants have been arrayed as proforma respondent Nos. 2 to 4.

(3.) The learned counsel for the appellants has first of all contended that Madho Dass had no locus standi to file the suit on behalf of the Mandir. he is neither the de facto Manager of the Mandir nor the guardian of the deity installed therein. The evidence on the record goes against this contention. Des Raj, lambardar who appeared as D.W.1 on behalf of the appellant candidly admitted that Madho Dass is the Mahant of the Dera i.e. Mandir and that he is sitting in the Mandir for the last 7/8 years. Further D.W.2 also admitted that Madho Dass has been sitting in the temple. D.W.3 stated that Madho Dass is doing the duty of the Mahant of the temple. Madho Dass in his statement deposed that he is doing Diva Batti in the temple. It is well settled law that a worshipper can sue in respect of the property of an idol. As such, Madho Dass had the locus standi to file the suit on behalf of the temple. The second submission of the learned counsel for the appellant is that respondent No. 1 had earlier filed a suit for permanent injunction on 12.3.1970 against Ram Kishan and Ishar, but had withdrawn the same on 6.1.1971. The instant suit for mandatory and prohibitory injunction was filed on 16.8.1970 by including in the array of defendants other persons also who had encroached upon the land meant for the Mandir. The learned counsel contended that the instant suit was barred by the principle of res judicata. It is well settled that where a suit is filed during the pendency of an earlier suit and subsequently the earlier suit is withdrawn, the suit filed during its pendency is not barred by the principle of res judicata. In the present case, in fact the second suit was filed immediately after Madho Dass noticed that encroachment had been made by other persons also.