KESRIMAL Vs. UGAM SINGH

JUDGEMENT

(1.) BOTH these revision petitions are directed against the order dated 19.1.1978 passed by the Civil Judge, Bhilwara in original execution case No. 82/73.

(2.) THE facts, briefly stated, are as under. In village Paroli in District Bhilwara there is a temple known as the temple of Shree Adeshwarji and the idol of Shree Adeshwarji the first Jain Tirthankar, is in the said temple. A dispute arose between the members belonging to the Digamber sect of the Jain religion and the members belonging to the Swetamber sect of the said religion with regard to the right to worship in the said temple. On 1st June, 1954, Shri Kesrimal (petitioner in S.B.Civil revision petition No. 179/1978) and Kistoor Chand, Dharam Chand, Bhuralal, Maganlal, Gundalal Gu!ab Chand and Pyar Chand, non -petitioners Nos.5 -12 in S.B.Civil Revision petition No. 179/78 here in after referred to as the 'plaintiff decree holders,' belonging to the Digamber Jain sect, filed a representative suit on behalf of the members of the Digamber Sampradaya in the court of Civil Judge, Bhilwara against Ugma Singh, Nathulal, Mishrilal and Kistoor Chand (non -petitioners Nos. 1 -4 in S.B. Civil Revision Petition No. 179/1979) here in after referred to as the defendant judgment debtors belonging to the Swetamber Sampradaya. In the said suit the plaintiff decree holders prayed for a declaration that they have been carrying on and and are entitled to carry on the Darshan, Prakshal and Poojan etc. according to the tenets observed by the Digamber Jain sect without interference from any body and also prayed that the defendants be restrained by means of a permanent injunction from erecting the 'Dhwaja Dand' and putting up the 'Kalash' and enclosing the idols by putting doors and locks or any other manner and interfering with or altering the nature, shape and appearance of the idols installed in the temple and in any other manner directly or indirectly doing any act or thing which may have the effect of wounding the religious feelings and sentiments of the followers of the Digamber Jain sect and interfere with the free and unfettered exercise of plaintiffs' rights for affording Darshan, Prakshal and Poojan and other rites according to Digamber Jain tenets of religion. The said suit was decreed by the Civil Judge, Bhilwara by his judgment and decree dated 5th June, 1957. The Civil Judge passed a decree in the following terms: .........[vernacular ommited text]...........

(3.) ON 17th October, 1973 the plaintiff decree holders filed the execution petition Under Order 21 Rule 32 CPC for execution of the decree. In the said execution petition the plaintiff decree holders submitted that the defendant judgment debtors wete not permitting the plaintiff decree holders and the members of the Digamber Jain Sampradaya to perform Poojan, Prakshal and Darshan of the idol and were not obeying the decree and were not keeping the doors of the temple open and further that they were offering 'Kasar' (saffron) to the idol in disregard of the decree and there by they are causing injury to the religious feelings of the persons belonging to Digamber Jain sect. In the said execution petition it was further submitted that the defendant judgment debtors have placed a small brass Swetambari idol 3' size near the main idol in the temple and this was causing injury to the religious feelings of the decree holders and persons belonging to the Digamber Jain sect and that as a result of the placing of the small idol the decree holders were prevented from performing the pooja of the main idol. The decree holders also submitted that the judgment debtors have placed 'Kalash, and 'Dhwaja Dand' on the temple. The decree holders, therefore, prayed that the decree be executed by attachment and sale of the property of the judgment debtors any also by removal of the small brass idol of Swetambari sect and the 'Kalash' and the 'Dhwaja Dand'. The judgment debtors filed a reply to the execution petition wherein they denied that the temple was not being kept open and was locked. The judgment debtors also submitted that in the decree there is no prohibition against offering of 'kesar' to the idol and that 'kesar' was being offered to the idol earlier also. As regards the small Swetambari idol it was submitted on behalf of the judgment debtors that the said idol was there prior to the filing of the suit and that it was not placed during the pendency of the suit or after the passing of the decree. With regard to the placing of the 'Dhwaja Dand' and 'kalash' it was stated that after the suit was dismissed by the District Judge, Bhilwara and during the pendency of the second appeal before this Court, this Court had passed an order dated 7th April, 1958 restraining the judgment debtors from placing the 'Kalash' and 'Dhwaja Dand' but the said order dated 7th April, 1958 was modified by this Court on 7th August, 1958 and the injunction whereby the judgment debtors were restrained from putting 'Kalash' and 'Dhawajadand' pending the disposal of the appeal was discharged and that after the passing of the said order dated 7th August, 1958 the debtors had placed the 'Kalash' and the 'Dhwajadand'. The judgment jedgments debtors further submitted that since no decree for mandatory injunction for removal oft he 'Kalash' and 'Dhwaja Dand' has been passed, no direction for removal of 'Kalash' and 'Dhwaja Dand' could be given.