KR NIRMAL CHAND SONI Vs. THAKURJI SALIGRAMJI MAHARAJ

JUDGEMENT

(1.) This litigation has a long chequered history but I shall narrate only the relevant facts which are necessary for the disposal of this revision.

(2.) The plaintiffs filed a suit for redemption in respect of an agricultural land situate at Hathibata Ajmer and a residential house situate at Pushkar. The suit was dismissed by the trial Court on 12th January 1949 but was decreed by the Judicial Commissioner, Ajmer on 28th July, 1953 and a preliminary mortgage decree was passed. An appeal against the said judgment and decree was also dismissed by Hon'ble the Supreme Court on 14th December, 1961. After the decision of the case by Hon'ble the Supreme Court a Commissioner was appointed to go through the accounts. The plaintiffs objected to the taking of accounts and the parties came in appeal to this Court. In second appeal No. 71/ 1970 Hon'ble Justice J. P. Jain passed a order for taking all the accounts by his judgment dated 26th March, 1972. On remand of the case from this court the Commissioner after going through the accounts submitted his report on 12th February, 1974 and the parties filed objections against the said report. The defendants apart from other objections also took an objection by filing an application supported by an affidavit that the properties in question were public trust property of a value exceeding Rs. 30,000/-and Section 29 of the Rajasthan Public Trust Act, 1959, (hereinafter referred to as 'the Act') laid a bar for being heard and decided unless such public trust was registered. A further objection was raised on the basis of Section 72 of the Act where any question affecting a public, religious, charitable trust was involved, the same could not be determined until after notice had been given to the Devasthan Commissioner. The plaintiffs opposed the application filed by the defendants and cross-examined the deponent of the affidavit. The learned Civil Judge, Ajmer, by his order dated 23rd September, 1974, held that the temple had properties worth more than Rs. 30,000/- i. e. near-about Rs. 2,00,000/-and that it was a public temple but took the view that as a preliminary decree had been passed by the highest court i. e. the Supreme Court, hence at this stage by issuing notice to Devasthan Commissioner or staying the proceedings of the suit would be against the directions of the decree and it was not for the trial court while taking proceedings for final decree to investigate the questions which were not raised earlier in the pleadings. In the result the learned trial Court dismissed the objections raised by the defendants in this regard.

(3.) Mr. Jain, learned counsel for the defendant-petitioners has contended that when the trial Court had arrived at a finding that the temple had properties near about Rupees two lacs and that it was a public temple, it committed a clear error in dismissing the objections raised by the defendants. It was further contended that the provisions of Sections 29 and 72 of the Act were mandatory in nature and no proceeding could at all be taken in the case without complying with those provisions. The learned lower Court was wrong not to take notice of subsequent change in law. It was further submitted that the learned trial Court committed a serious illegality in exercising of its jurisdiction in taking the view that in complying with the provisions of Sec.-tions 29 and 72 of the Act it was acting in any way in conflict of the decree affirmed by Hon'ble Supreme Court or in any manner varying the directions contained in the said decree. It was also eon-tended that the case remained pending in Hon'ble the High Court in deciding second appeal No. 71/1970 till its final disposal on 26th March, 1972 and as such the petitioners were not guilty of any laches,