PRATAPMAL DHAREWA Vs. GANPAT DAS

JUDGEMENT

(1.) The present writ petition has been filed by the plaintiff Shri Pratapmal Dharewa Dadabari Trust, Sujangarh and its three trustees against the defendant-respondents Ganpat Das s/o Kaludas & other legal representatives of late Kaludas, who was working as Poojari in the temple managed by the registered Public Trust, the petitioner no.1. The petitioner plaintiffs are aggrieved by the order Annex.7 dated 16/12/2011,whereby, the learned trial court in a suit for mandatory injunction seeking to restrain the defendants from encroaching the land of temple of deity, which was managed by the petitioner Public Trust and forcibly performing Pooja therein and not to interfere in the day-to-day management of the petitioner Public Trust along with damages for unauthorised occupation by them on the part of the property of petitioner Trust, which was duly registered as Public Trust with the Devasthan Department.

(2.) The legal representatives of deceased Poojari Kalu Das are contesting the said suit filed by the plaintiff Trust.

(3.) Learned counsel for the petitioner, Mr. Abhinav Jain submitted that the learned trial court has erred in rejecting the application of the petitioner Trust under Section 65 of the Evidence Act in not allowing the plaintiffs to lead secondary evidence in the form of Patta, a 100 years old document, which itself is entitled to a presumption of it being valid as per Section 90 of the Evidence Act and the original of which, in the circumstances beyond the control of the petitioner Trust, namely death of their advocate Shri Har Gopal Mohta in 2008, a photocopy of which is duly produced at the time of filing the suit itself and since the respondent-defendants, legal representatives of deceased Poojari Kalu Das, who had no right to remain in possession of the part of the property known as Hanuman Temple within the premises of Jain Temple belonging to the petitioner Trust and in fact the respondent-defendants were illegally occupying the said portion of the property and were illegally trying to encroach upon the other part of the land also. Learned counsel for the petitioner, thus, submitted that not only the suit against them deserves to be decreed but in the absence of title being allowed to be proved by the plaintiffs under the garb of impugned order, a serious miscarriage of justice would result in the present case.