MAGAN LAL Vs. HARI SHANKER

JUDGEMENT

(1.) THE appellant-plaintiffs have challenged the legal validity of the judgment dated 24.11.2005 passed by the Civil Judge (Senior Division), Rajsamand, whereby the Civil Judge had dismissed the suit preferred by the plaintiff- appellants. THEy have also challenged the legal validity of the judgment dated 22.2.2012 passed by the District Judge, Rajsamand, whereby the learned Judge has confirmed the judgment dated 24.11.2005.

(2.) BRIEFLY, the facts of the case are that the plaintiff- appellant-plaintiffs Nos. 1 to 6 had filed a suit in the representative capacity for being given the possession of the Chabutri before the learned trial court. According to them, there is a house, and a Chabutri situated next to the temple of Hinglaj Mataji Mandir. The Hinglaj Mataji Mandir is a deity worshipped by the Khatri community. Vide gift-deed dated 1.12.1992. Smt. Nathi Bai had donated the Chabutri, and the house to the temple. However, respondent-defendant No.1, Hari Shanker, had encroached upon the said property. Therefore, they had filed the suit for restoration of the property, and for mesne profit.

(3.) ADMITTEDLY, the respondent-defendant No.1 has admitted that gift-deed dated 1.12.1992 was, indeed, made by Smt. Nathi Bai. Moreover, Madan Singh (P.W.3) has proven the said gift-deed. Further, the learned trial court has also noticed that the gift-deed was, indeed, made by Smt. Nathi Bai. However, both the courts are of the opinion that mere proof of the gift-deed would not substantiate the plaintiff's case. For according to Section 122 Succession Act, the plaintiff was further required to prove the fact that the gift had been "accepted". A bare perusal of the impugned judgment clearly reveals that the appellant-plaintiffs have not been able to submit an iota of evidence on the point of "acceptance". The plaintiff has examined neither Smt. Nathi Bai, nor the Pujari of the temple to establish the factum of "acceptance". Although the learned counsel for the appellant has contended that the temple is small one, being run by the Khatri community, therefore, it does not have a Pujari. However, the said contention is hardly acceptable. For, it is the Pujari, who looks after the deity, who is enshrined in the temple. In the present case, the Pujari of the temple has not been examined as a witness to prove the fact that the gift was "accepted" on behalf of the deity, who happens to be a minor.