GOVINDI Vs. JAGDISH & ORS

JUDGEMENT

(1.) The present second appeal has been filed by the appellant-plaintiff, challenging the judgment & decree dated 28.05.2009 passed by the District Judge, Jaipur (hereinafter referred to as "the appellate court") in Civil Regular Appeal No.88/2007, whereby the appellate court has allowed the said appeal, and set-aside the judgment & decree dated 05.09.2007 passed by the Civil Judge (J.D.) Chomu, District Jaipur (hereinafter referred to as "the trial court") in Civil Suit No.117/94.

(2.) The short facts giving rise to the present appeal are that the deceased-Smt. Gulab Devi widow of Gendalal, and the present appellant Smt. Govindi wife of Mohanlal Sharma (original-plaintiffs) had filed the suit against the respondents (original-defendants) seeking permanent injunction, alleging interalia that the plaintiffs as well as the defendants were the pujari of the temple known as Thakurji Shri Laxminathji and Thakurji Hanumanji situated at village Chomu. According to the plaintiffs, the plaintiffs and the defendants had the right of worshiping in the said temple (OSRA) since the time of their ancestors, and the said rights were also determined in a case by the Additional Munsiff No.2, Jaipur District, Jaipur as per the decree dated 08.05.1979. However, the defendant No.6 (respondent No.6) did not hand over the 'OSRA' i.e. right of worshiping to the plaintiffs, and therefore the suit was filed seeking permanent injunction for restraining the defendants from performing any sewa puja in the said temple, and further directing the defendants to hand over the 'OSRA' to the plaintiffs. The said suit was resisted by the respondents-defendants by filing the written statement, denying the allegations made in the plaint, and further contending interalia that during the life time of the husband of the plaintiff No.1, the worship in the temple was being performed by the defendants only as the plaintiffs did not have any son, and the worshiping could not be performed by the females. It was also contended that the plaintiffs had never worshiped at any point of time in the said temple, and therefore the suit was liable to be dismissed. The trial court after appreciating the evidence on record, decreed the suit in favour of the appellant-plaintiff No.2 by restraining the respondents-defendants from causing any obstruction to her in carrying out the sewa-puja during the 'OSRA', and further directing the respondents to hand over the 'OSRA' to the appellant. Being aggrieved by the said judgment & decree passed by the trial court, the respondents-defendants had filed the appeal before the appellate court, which has been allowed by the appellate court vide the judgment & decree dated 28.05.2009, by setting-aside the judgment & decree passed by the trial court.

(3.) It is sought to be submitted by the learned counsel Mr. Kapil Bardhar for the appellant that the appellate court has committed an error of law in reversing the findings recorded by the trial court, and in holding that the appellant being female could not have performed the sewa-puja in the temple. Relying upon the decision of this Court in case of Mst. Champa Devi vs. Chothmal,1956 RajLW 509, and the decision of the Apex Court in case of Raj Kali Kuer Vs. Ram Rattan Pandey, 1955 AIR(SC) 493, he submitted that a Hindu female could succeed in the hereditary priestly office of a pujari. According to Mr. Bardhar, though the decree was passed in the earlier suit on 08.05.1979, recognizing the right of the appellant with regard to the 'OSRA', the appellant did not file the execution proceedings in respect of the said decree as the same would have been barred by law of limitation in view of Article 135 of the Limitation Act. He further relied upon the decision of Apex Court in case of Ajit Chopra Versus Sadhu Ram And Others, 2000 1 SCC 114, to submit that fresh suit was maintainable for fresh cause of action and that the appellate court has committed an error in not permitting the appellant to enforce the right of 'OSRA' pursuant to the decree passed in the earlier suit. However, the learned counsel Mr. Gajendra Vyas for the respondents-defendants has supported the findings recorded by the appellate court and submitted that even as per the admission made by the original-plaintiff No.1 Gulab Devi, the decree passed in the year 1979 in the earlier suit was never acted upon, as she did not have any son and the present appellant also did not have any son. He further submitted that the suit at the instance of the appellant for execution of the decree passed in the earlier suit was not maintainable, which decree even otherwise was never acted upon.