HANS RAJ Vs. MANDIR SHIVJI THROUGH RAKESH KUMAR

JUDGEMENT

(1.) The defendant is the appellant, who has lost in both the learned Courts below and has filed the instant regular second appeal.

(2.) The brief facts of the case are that the plaintiff filed a suit for permanent prohibitory injunction against the defendant on the allegations that 'Mandir Shivji' through its Mohtmim (Shebait) Saraswati Gir alias Ram Dayal Chela Shergil Chela Bashishwar Gir is the owner in possession of the land comprised in Khata No.222, Khatauni No.447, Khasra Nos.1003, 1004, 1005, 1006, 1007, 1008, 1009, 1010, 1011, 1012, 1013, 1014, 1015 and 1016, measuring 1-81-80 hectares, situated in Up-Mohal Kasba, Mauza Yol, Tehsil Dharamshala, District Kangra, H.P. (hereinafter referred to as the suit land). It was averred that the statute of Lord Shiva was installed in this temple since time immemorial and it is looked after by the Shebait (Mahant/Mohtmim) of the temple, who used to be from the Gossain sect and used to perform all types of rituals i.e. Puja etc. Previously, Shri Saraswati Gir, father of the plaintiff, used to perform the rituals of the temple till his death. On his demise, plaintiff succeeded as Shebait. It was further averred that on 02.04.1999 representatives of Gossain sect, as per custom, unanimously appointed the plaintiff as Shebait (Mahant/Mohtmim) of the plaintiff temple and since then he is performing all the rituals in the said temple. The defendant has absolutely no right, title or interest in the aforesaid temple or even in the land appurtenant to the plaintiff temple. It was also averred that the defendant without any right, got issued a notice to the plaintiff directing him not to open and construct any shop on the land of the plaintiff temple. The defendant is neither owner nor in possession nor having any concern with the temple and its properly and he being a Pradhan of the Panchayat wants to thrust upon the plaintiff his dictatorial attitude by aforesaid notice. The plaintiff averred that the notice was duly replied by the plaintiff on 24.05.2007, however, the defendant is openly threatening and interfering in the peaceful ownership and possession of the temple and preventing the plaintiff forcibly not to raise construction on the land of the temple. The plaintiff requested the defendant not to interfere, but in vain. Hence, the suit was filed.

(3.) The defendant contested the suit by filing written statement wherein preliminary objections regarding maintainability, cause of action, estoppel, non-joinder of necessary parties, jurisdiction and the suit is hit by Section 92 CPC, were taken. On merits, it was averred that the plaintiff is not in possession/management of the plaintiff temple or the suit land in any capacity. The entry showing Saraswati Gir as Mohtmim in the revenue record is redundant. It was further averred that the plaintiff is claiming himself to be the Shebait over the suit land because of his vestment vide some declaration issued by Gossain sect, but no such declaration can make him as owner of the property because it does not belong to Gossain sect. It was also averred that Saraswati Gir @ Ram Dayal never managed the temple property and his name seems to have incidentally and wrongly entered into the revenue record as Mohtmim and no evidentiary value can be attached to the same for the reason that this person has not been heard for more than 30 years, yet his name is appearing in the record. Shri Ram Dayal left his house long ago. Defendant averred that the temple and its property have been looked after by the villagers, who have formed a 'Sabha' for this purpose. The villagers arranged 'Bhandara Yajna' in the temple out of their contributions.