Judgment:
E.S. Da Silva, J.
1 This Second Appeal is directed against the judgment of the learned Additional District Judge, Panaji, dated 19th February, 1987, in Civil Appeal No. 128 of 1984 which has affirmed the Judgment of the Civil Judge, Senior Division of Bicholim dated 18th June, 1984 in Special Civil Suit No. 62 of 1974.
2. The matter is relating to the Temple of Shri Navadurga at Bicholim which is the appellant. The said Temple of Navadurga has different affiliated Temples and one of them is the Temple of Mallikarjun situated at Pale village near Usgao. The plaintiffs who are the now respondents filed a suit for declaration that the Temple of Mallikarjun which is shown in the 'Compromisso' of Navadurga Temple as one of its affiliate Temples (filial) belonging to them in ownership and that they were the Mahajans of the Temple. A further prayer was also added to the effect that it should be declared that the Bye-laws the Navadurga Temple would not bind on the Zolmis family to which class the plaintiffs belong. The suit was filed in a representative capacity. The appellants are the original defendants while the respondents are the original plaintiffs Nos. 3, 4 and 6, respectively. However, by Order dated 16-4-1992 passed in Miscellaneous Civil Application No. 131 of 1992 the respondents Nos. 2 and 3 were deleted. The suit was instituted for a declaration that the Mallikarjun Temple belongs to the Zolmis as its Mahajans and that the Bye-laws of the Navadurga Temple are not binding upon the Zolmis family. By judgment and Order dated 18th June, 1984, the learned Civil Judge decreed the suit as per the respondents' prayer.
3. The appellants' case is that as per the 'Regulamento Das Mazanias' which is the law governing all the Hindu Temples in Goa any Temple requires the approval by the Government of its 'Compromisso' which is the Memorandum of Association prepared for the constitution of its own Mazania, that is to say, the Association of the faithful of the concerned Temple. As such the 'Compromisso' of Navadurga Temple was approved by the Government on 1-4-1930 by Portaria No. 869 dated 16th December, 1929 published in the Government Gazette (Boletim Official) No. 26 dated 1-4-1930 wherein it is shown that Mallikarjun Temple is one of its affiliate Temples (filial). As per the 'Compromisso' there are two types of Mahajans, namely, Dalvis and Gaunsos. Zolmis to which class the plaintiffs/respondents belong are indicated as servants of the Temple of Navadurga and of its affiliate Temples in the respective 'Compromisso'. Likewise the Zolmis there are also other servants shown as such in the 'Compromisso' who are bound and render also different type of services to the Temple of Navadurga. Therefore, the Zolmis are not the only class of people shown as servants of Navadurga Temple. In the same 'Compromisso' duties of each class of servants are mentioned, however, no express duties have been assigned to the Zolmis in the aforesaid 'Compromisso'. The Temple of Mallikarjun is situated in a property by name 'Bamiem' surveyed under No. 284 in the old survey (Cadastro). It is the plaintiffs' case that they are the owners of the property 'Bamiem' along with the Temple. The appellants led evidence to show that the property 'Amrai' which is also part of Survey No. 284 like 'Bamiem' is belonging to Navadurga Temple from or even prior to 1930. The appellants have further pleaded that the survey of Pale village was not put to objections and has not become final. Although property 'Bamiem' is entered in the Land Survey Department under No. 284 in the name of Mallikarjun Temple it was submitted that the entry of the survey is not correct. It was also stated that the part of property No. 284 known as 'Amrai' belongs to the Dolvis and is in their possession. This portion of 'Amrai' is the eastern portion of Survey No. 284 while property 'Bamiem' is its western portion. Through the property 'Amrai' there passes a public P.W.D. road which crosses it from north to south so that one portion of 'Amrai' lies to the east of the road while the other portion is situated to the west. Between 'Amrai' and 'Bamiem' there was an old road (cart road) signs of which are still found on the site. The road passing through 'Amrai' was opened sometime in 1933 or 1934. The acquisition for the purpose of the road was published in the Government Gazette No. 104 dated 27-12-1934. The portion of 'Amrai' acquired has been mentioned therein as 'Primeiro Troco' and as belonging to Mahadev Subraia Dolvi. The compensation for acquisition of that land was also paid to the Dolvi family. Besides the entry of the property 'Bamiem' in the name of the Mallikarjun Temple is wrong and the old survey has not been promulgated or closed. The construction against which the plaintiffs have reacted and put up by one Prabhakar B. Chodankar which gave rise to the institution of the suit was not the first one erected in the property 'Amrai'. Earlier to that constructions were also done by one Dadi Malo and also for an English School in the property 'Amrai' for which there was no objection at all. Besides in other parts of 'Amrai' there had been two houses of Vinayak Dolvi and a Marathi School built by the Village Panchayat. These complete constructions were done much earlier to the objection raised by one Tulsidas Gauddo against Prabhakar Chodankar. As the said Tulsidas had not succeeded to stop Prabhakar's construction because in the meantime the said Prabhakar filed a suit for permanent injuction in the Court of Bicholim wherein a temporary injunction was granted restraining the Zolmis from raising any obstruction to his construction he subsequently filed three more suits against persons to whom Dolvis had sold pieces of property 'Amrai'. It was also stated by the appellants that in the property 'Amrai' there were military barracks during the Portuguese time which were built by Military authorities with Dolvis' permission some six to seven years prior to Liberation. There also exists some cinema theatre from 1963 from which rent is paid to Dolvis' family.
4. The plaintiffs admit that the Mallikarjun Temple is an affiliate Temple (filial) of the Navadurga Temple. Both the courts below, namely, the Civil Court of Bicholim as well as the Additional District Court accepted this position but at the same time held that inspite of the Mallikarjun Temple's affiliation to the Navadurga Temple an affiliate Temple could have its own Mahajans. This is the real or the main issue arising in this case and which is the subject matter of the challenge in the present Second Appeal.
5. Bearing in mind that we are dealing with a second appeal against two concurrent findings given by the courts below in favour of the plaintiffs/respondents and as such in normal course only substantial questions of law are to be considered in the first instance (although in exceptional cases the courts may also look into the evidence recorded) Shri Usgaonkar, learned Counsel for the appellants, has advanced before me three legal propositions in support of his challenge thrown against the impugned judgment of the first appellate Court. The first one is that no material has been placed by the plaintiffs/respondents (hereinafter called 'The plaintiffs') to say how they are the Mahajans of the Mallikarjun Temple. Therefore, on this count alone the suit ought to have been dismissed by the trial Court. The second one is that as per the 'Compromisso' of 1930 there is a principal Temple and eight affiliate Temples being one of them the suit Temple of Mallikarjun. According to the learned Counsel affiliation in this case does not mean the existence of autonomous Temples seeking affiliation in the main Temple. At least this is not the case pleaded by the plaintiffs and on the contrary it is their case that there was no linkage between the Mallikarjun Temple and the Temple of Navadurga. Consequently the admission made by P.W. 1 Narayan Zolmis during his cross-examination that Mallikarjun Temple is affiliated to Navadurga Temple was a valid ground for the trial Court to dismiss the suit. Thirdly and irrespective of that or without prejudice to the other two it was further contended that in the 'Compromisso' of the Navadurga Temple the Zolmis are shown as servants of the Temple. It is a fact that in the aforesaid 'Compromisso' no duties have been assigned to the Zolmis in their capacity as servants. But all the duties as set out by the appellants in the written statement with minor deviations have been accepted by the plaintiffs and therefore the fact of Zolmis rendering services not only to Navadurga Temple but also to Ravalnath and other affiliate Temples of Navadurga has been established by the plaintiffs under admission in this respect. In view of such admission any omission in the 'Compromisso' to indicate the duties supposed to be rendered by the Zolmis to the Temple of Navadurga is of no consequence. Likewise the execution of different acts or duties by the Zolmis in respect of Navadurga Temple and other affiliate Temple of Navadurga as any other servants of the said Temple has established their status as servants of the Temple of Navadurga because nowhere the plaintiffs have pleaded that they were rendering service to Navadurga Temple in any other capacity.
6. Admittedly the prayers sought to be adjudicated by the plaintiffs in their suit are as follows :
(a) That this Hon'ble Court be pleased to declare that the Mallikarjun Temple belongs to the Zolmis as its Mahajans; and
(b) That the Bye-laws of the Navadurga Temple are not binding upon Zolmis families.
7. In this respect it was submitted by Mr. Usgaonkar that on a plain reading of Article 1 and 2 of the Regulamento of Mazanias one cannot get clearly as to how the Mazanias have been formed, that is to say, what form of Association the said Mazanias mean. The learned Counsel has relied in this respect on a book written by Advocate Rui Gomes Pereira known as 'Hindu Temples and Deities' which refers to Mazanias as being Associations Gaonkars of the village (Comunidades) or Associations of private individuals of Non-Gaonkars. According to the learned Counsel the definition given by the author in the said Book appears to have support in the relevant law governing the Hindu Temples. Prior to the present Regulamento of Mazanias as approved by Diploma Legislative No. 645 dated 30-3-1933 and amended by Diploma Legislative No. 1898 dated 28-5-1959 the law governing the Mazanias was being regulated by two earlier Diplomas being the first one the Regulamento of Mazanias approved by Portaria dated 28-7-1866 followed by another Regulamento of Mazanias approved by Pertain dated 30-10-1886. Article 75 of the aforesaid Regulamento of 1886 provided that when a Mazania was formed and founded by Gaonkars the provisions of Code of Comunidades would be applicable to the said Mazania to some extent. According to this provision Article 1 of the 'Compromisso' of 1930 in respect of the Temple of Navadurga shows that the same was founded by the Comunidades of the village of Pale and has seven affiliate Temples mentioned in the aforesaid 'Compromisso'. In its turn Article 4 of the 'Compromisso' says that the Mahajans of all these Temples are those components of the Comunidades of Pale, namely, the Dolvis belonging to Brahmin class and the Gaunsos belonging to Maratha class.
8. In order to appreciate the correct legal position of the issues raised by the learned Counsel in this litigation it is necessary to examine the relevant provisions of the Regulamento of Mazanias which are dealing with the subject-matter of the suit. Article 1 of the Regulamento reads that the Hindu Religious Association known as Body of the Members (Mazania of Devasthan) shall be subject to the provisions under this Regulation and in the respective Bye-laws legally approved. Article 2 provides that a Body of Members (Mazania) shall be the association of components of a Hindu Temple constituted according to the rites of their religion for the exercise of the cult. Further Article 17 which relates to the Bye-laws of the Body of the Members prescribes that the Bodies of Members (Mazanias) in order to have legal constitution shall be required to have Bye-laws approved by the Government wherein certain requirements are to be mentioned. In its turn Article 18 provides that the draft of the Bye-laws shall be prepared by a Special Committees appointed by the Governor General. It follows therefore that for any Mazania to be constituted as a legal entity what is required is that the same should have its Bye-laws approved by the Government in the terms and form established by Article 17 of the Regulation. Therefore, if such Bye-laws do not exist there is no question of any members of an Association in respect of a Temple claiming that they are the Mahajans of the aforesaid Temple. If in terms of Article 17 for the Body of Members (Mazania) to have a legal constitution the mandatory requirement is that it should have its Bye-laws approved by the Government and Article 1 of the Regulation also asserts that the Hindu Religious Associations known as the Bodies of the Members (Mazanias of Devasthans) shall be subject to the provisions of the Regulation and under the respective Bye-laws legally approved, there is no scope for any person to try to assert his status of Mahajan of a Temple in the absence of any Mazania legally constituted in respect of the aforesaid Temple.
9. It was urged by Mr. Usgaonkar that in view of this legal position the question which is placed before the Court is that the evidence available on record suggests that the Temple of Navadurga is one of the Temples which were founded by the respective members of the village wherein the same is situated, namely, the Gaonkars of the Comunidade of Pale, showing also some affiliate Temples amongst them the Temple of Mallikarjun. In this respect the learned Counsel has relied for the purpose of explaining the meaning of the word 'affiliate' which is the translation of the word 'filial' in the Dicionario Pratico Ilustrado of Jaime De Seguier which at page 517 defines the expression 'filial' as meaning the same thing as 'sucursal' or 'dependent' and which has therefore nothing to do with an autonomous body which has sought its association with the main Body. The learned Counsel further submitted that the appellants have also shown that the Navadurga Temple has its own 'Compromisso' approved by the Government right from 1930 after compliance of the legal formalities and duly published in the Official Gazette. It was also contended by the learned Counsel that as per the plaint the Temple of Mallikarjun was founded according to the plaintiffs by one Man Sawant about 400 years ago but in this respect no evidence was brought by the plaintiffs to substantiate these pleadings. It was also observed that at the same time it is not the plaintiffs' case that the Temple of Mallikarjun was founded or constructed by the Comunidade of the village. The plaintiffs are not even relying on any 'Compromisso' in respect of their Temple or at least on the 'Compromisso' of the Temple of Navadurga dated 1930. On the contrary it is their case that the 'Compromisso' of Navadurga Temple does not bind on the Zolmis and instead they have pleaded autonomous existence on their own. Neither there is any case pleaded by the plaintiffs that Navadurga Temple being an autonomous entity the said Temple has sought the affiliation of Mallikarjun Temple within its fold. Indeed P.W. 1 Narayan in his evidence has said that there is no connection between Navadurga Temple and Mallikarjun Temple. Therefore, one must find out in this context what is the case pleaded by the plaintiffs in the suit and what was ultimately proved by them on the basis of the evidence available on the file.
10. There is no doubt a very valid point in all these submissions of Mr. Usgaonkar. We have already seen that the main two prayers in the suit on the basis of what was pleaded by the plaintiffs is that the Mallikarjun Temple should be declared as belonging to Zolmis as its Mahajans and that the Bye-laws of Navadurga Temple are not binding on the Zolmis families. Against this case the case proved by the plaintiffs, as far as the ownership of the Mallikarjun Temple is concerned, is that the administration of the said Temple is under its full control and also that they are in its physical possession. In this respect we have to overlook all the other evidence regarding the question of the proprietory or possessory rights in respect of the property 'Bamiem' where the Temple of Mallikarjun is actually located. With this regard the Appellate Court has clearly restricted the issue to the ownership of the Temple only and to the plaintiffs' claim as Mahajans of the said Temple leaving aside the question of ownership of the property 'Bamiem'.
11. Shri Usgaonkar contends that the mere fact of the plaintiffs administering the Temple of Mallikarjun or performing religious rites and ceremonies therein does not by itself make them Mahajans of the Temple. What makes a person a Mahajan of a Temple is the proof that the Temple was founded or constructed either by the Comunidade or by private individuals or their ancestors formed in an association for the purpose of cult and that its members are legally constituted in terms of section 1 r/w section 17 of the Regulamento of Mazanias. Therefore, whatever evidence was led by the plaintiffs to the effect that they are administering the Temple and/or are also in its physical possession gets nullified in view of the fact that there is an admission made by one of the plaintiffs' witnesses that Mallikarjun Temple is affiliated to the Temple of Navadurga and also with regard to the services rendered by the Zolmis families to which the plaintiffs belong not only in the said Temple of Navadurga but also in its affiliate Temples like Ravalnath Temple.
12. This submission of the learned Counsel appears to be correct and deserves acceptance. In view of the plaintiffs' admission that Mallikarjun Temple is affiliated to the Temple of Navadurga their position in respect of the suit Temple seems to be unsustainable. If the plaintiffs' case was that they were totally independent from the Temple of Navadurga without being affiliated to the aforesaid Temple the situation might have been different. If the plaintiffs accepted that the Temple of Mallikarjun is a 'filial' or affiliate and this is in consonance with the 'Compromisso' of the Navadurga Temple the fact by itself is sufficient to destroy the case pleaded by them. Thus the argument of the Appellate Court that assuming that the Temple of Mallikarjun was affiliated to Navadurga Temple still it had its own autonomy and the Zolmis were to be held in full and exclusive control of their Temple becomes without any substance and completely lacks a sound foundation either in facts or in law. To be noted also that nowhere the plaintiffs have pleaded that their Temple being an autonomous Temple had sought its affiliation in the Navadurga Temple. Hence the appellate Court was not supposed or required to make for the plaintiffs any case which had not been even pleaded by them.
13. Further once the plaintiffs' witness No. 1 Narayan had admitted that the Temple of Mallikarjun was affiliate and as such was being 'filial' to the Temple of Navadurga it does not lie on the plaintiffs' mouth to claim autonomy to that Temple. It is certainly an inconsistent stand which cannot be accepted.
14. On the other hand the plaintiffs have pleaded that The Temple of Mallikarjun is existing or was constructed about 400 years ago by one Man Singh to honour the great warrior of that time by name Bonm Mad Gauda. However, there is no evidence at all to support this plea made by the plaintiffs and there is also no case even pleaded and much less proved by them that Mallikarjun Temple being an autonomous Temple sought subsequently its affiliation with the Temple of Navadurga. While pleading that the Temple of Mallikarjun has been constructed by Man Singh they have relied on the records which according to them were kept in the Archives of Sawantwadi. They have also pleaded that at that time they were unable to obtain a copy of those records as they have been informed that the same could be supplied only at the request of the Court. However, no efforts were made by the plaintiffs to seek such copies through the Court during the pendency of the suit. Being so it seems reasonable to draw an adverse inference against the plaintiffs in this respect to the effect that on account of its failure to request the Court to help them in obtaining the evidence of the construction of the Temple by them no such evidence appears to have actually been available in the Archives of Sawantwadi. Hence the admission on the part of the plaintiffs that the Temple of Mallikarjun is affiliated to Navadurga Temple seems to fit only on the irresistible conclusion that the said Temple is the subordinate Temple of Navadurga as its 'filial' without any autonomous entity. Since there is no evidence available about its foundation this very admission that the Mallikarjun Temple is 'filial' of Temple of Navadurga defeats the plaintiffs' own case in respect of their Temple's independent identity or status.
15. Indeed Shri Cardoso, learned Counsel for the respondents, has sought to make a brave attempt to explain the scope and the meaning of the admission ostensibly made by P.W. 1 Narayan in respect of the affiliation of Mallikarjun Temple in the Temple of Navadurga. In this connection the learned Counsel took me through the pleadings made by the plaintiffs and the stand taken by the appellants on these pleadings. He pointed out that in para 2 of the plaint it has been stated by the plaintiffs that the property 'Bamiem' is registered in the Land Survey Department under No. 284 in the name of the Temple and has been in possession of the Zolmis for more than 100 years. However, in reply the appellants have stated in para 3 of their written statement that the survey of the village Pale was not put for objection and therefore had not become final while in para 4 although admitting that the property 'Bamiem' is entered in the Land Survey Department under No. 284 the entry of the Survey was not correct. The learned Counsel has invited my attention that thereupon since in all its subsequent pleadings there was no denial on the part of the appellants that the property 'Bamiem' was registered in the name of Mallikarjun Temple and that they have only contended that the property 'Amrai' was in independent property, it was part of the said Survey No. 284 and was being registered in the Land Registration Office in the name of the Dolvis. The learned Counsel has also referred to what was pleaded by the appellants in para 26 onwards of their written statement wherein one cannot find any denial to what was contended by the plaintiffs to the effect that the Zolmis families since the establishment of the Temple of Mallikarjun were its only Mahajans and in the exclusive management of its affairs. The learned Counsel has contended with regard to the appellants' pleading that the Mallikarjun Temple was affiliated to the Temple of Navadurga Temple that precisely because they came to know about that affiliation which was done without their knowledge or consent the suit was filed for the purpose of a declaration that such affiliation is not valid or binding on the plaintiffs. In this respect the learned Counsel argued that the evidence of P.W. 1 Narayan given in the suit filed by the plaintiffs in a representative capacity shows that till the construction made by some outsiders in the property 'Bamiem' they were not aware of the affiliation of the Mallikarjun Temple which was done at their back and that they were not even heard when the Bye-laws were drafted by the members of the Navadurga Temple. It is a fact that in cross-examination the said witness Narayan has admitted that the Temple of Mallikarjun was affiliated to Navadurga Temple but according to the learned Counsel what the witness wanted to mean is that this affiliation was shown in the 'Compromisso' of the Temple of Navadurga. Shri Cardoso tried to impress upon me that it was in the context of what has been stated by the witness during his examination-in-chief wherein he had deposed that the plaintiffs came to know about the affiliation only after some construction started being erected in the property 'Bamiem' that this admission was to be understood. As per the learned Counsel the admission was only a reflection of the existence of a fait accompli and therefore the suit has been filed by the plaintiffs to get away from the situation created to the plaintiffs without their consent.
16. It is, however, not permissible for me to concur with this submission of the learned Counsel. At the outset the argument sought to be made that because they came to know about the affiliation quite late and that this was done also without their knowledge the suit was filed is difficult to be believed since as it was said above this submission becomes irrelevant on account of the fact that the plaintiffs' own witness has admitted that the temple of Mallikarjun is an affiliate or a 'filial' of Navadurga Temple and also admitted at the same time that the Zolmis family including the plaintiffs are rendering services to the Temple of Navadurga as well as to its other affiliate Temples like the Temple of Ravalnath. Similarly the second argument that in Articles 15 to 24 of the 'Compromisso' of the Temple of Navadurga which enumerates the duties of all the servants of the Temple no duties or obligations have been mentioned in respect of the Zolmis and therefore, the plaintiffs although admitting doing some work for Navadurga and Ravalnath Temples have never admitted that they were doing so as servants of that Temple is also to be rejected, because nowhere the plaintiffs have pleaded in what capacity they were rendering services to those Temples. To be noted that this position acknowledged by the plaintiffs with regard to their rendering service to the Temples of Navadurga and Ravalnath was not even pleaded by them in the plaint at the time of the filing of the suit and the same had to be dug out by the appellants when they stated about that in their written statement and ultimately succeeded in obtaining from the plaintiffs' witnesses the acknowledgement of those services alleged to being rendered by them to the Temple of Navadurga.
17. Further the evidence led by the appellants shows that they have all consistently maintained that the Zolmis were not the Mahajans of the Mallikarjun Temple but only the servants of Navadurga Temple as well as of its affiliate Temples. In this respect not only the testimony of their witnesses points out to this position taken by them but also the suggestion put to the plaintiffs' witnesses, namely, P.W. 2 Shivram Naik, P.W. 3 Damodar and P.W. 4 Jaidev establishes that the appellants have never admitted that the Zolmis were Mahajans of the Temple of Mallikarjun but only the servants of Navadurga Temple. On the other hand what Mr. Cardoso has submitted with regard to the admission made by P.W. 1 Narayan that the Temple of Mallikarjun is affiliated to Navadurga Temple is only a reflection of what was shown in the Compromisso does no appear to be sound. To be noted that in this respect none of the courts below have said so and there is also a clear-cut admission of this actual position on the part of P.W. 1 Narayan while at the same time there is nothing on record to suggest that the answer given by him was with regard to the Bye-laws of 'Compromisso' of Navadurga Temple only. Besides as it was already mentioned the further admission on the part of the plaintiffs' witnesses with regard to the services rendered by the Zolmis which came on record only after the appellants pleaded this fact in their written statement and which were ultimately conceded by the plaintiffs does not support the contention of the learned Counsel that the aforesaid admission has been given in a different context sought to be highlighted by Mr. Cardoso. I am instead in agreement with Mr. Usgaonkar when he contends that the said admission is to be looked into in the context of a sequence of all these admissions with regard to the rendering of services by Zolmis to the Navadurga Temple without qualifying in what capacity they were doing so rather than because they were the servants of the said Temple.
18. Further the argument advance by Mr. Cardoso and which finds support in the finding of the first Appellate Court that the omission in the Article 15 of the 'Compromisso' of Navadurga Temple in allotting or assigning duties to the Zolmis in respect of the services to be rendered to the Temple of Navadurga shows that they cannot be subject to the provisions of the said 'Compromisso' seems also to have no force. In fact the circumstance of the said 'Compromisso' being silent on this point only shows that although in respect of the extent or nature of the services to be rendered by the Zolmis to the Navadurga Temple they are not bound by the 'Compromisso', however, they are to be held as bound by the same 'Compromisso' as far as their status of servants is concerned in view of what has been expressly stipulated in Article 15(3) of the said 'Compromisso'. Besides we have seen that inspite of no mention having been made in the 'Compromisso' with regard to the duties or services to be rendered by the Zolmis to the Temple of Navadurga they themselves have acknowledged and admitted that all the duties enumerated or mentioned by the appellants with this regard were being performed or discharged by them. Further the fact that the plaintiffs have carefully chosen not to disclose in their plaint or even at the time their evidence was recorded during their examination-in-chief that they were rendering services to Temple of Navadurga and this fact had to be uuearthed by the appellants only in the cross-examination although the plaintiffs ultimately admitted the rendering of such services is no doubt a strong pointer to the circumstance that the plaintiffs appear to be the servants of the Temple of Navadurga once they had not pleaded in what other capacity such services were being rendered to the said Temple.
19. Hence both the courts below appear to have erred in granting the degree in favour of the plaintiffs merely on the basis of alleged possession and actual control and administration of Mallikarjun Temple by the Zolmis families as well as by the fact of the said Zolmis rendering or performing religious ceremonies in the aforesaid Temple to the exclusion of the Mahajans of the Temple of Navadurga in respect whereof they have been shown as its 'filial'. Even in this respect there is evidence on the basis of the admission of the plaintiffs themselves that on certain occasions the priest of Navadurga Temple used to perform certain religious ceremonies in the Temple of Mallikarjun. This circumstance thus shows that even on this aspect the alleged exclusive control of the religious ceremonies by the Zolmis families is not to be entirely believed.
20. Therefore the admissions made by the witnesses examined by the appellants and which were pointed out by Mr. Cardoso to the effect that all the affiliate Temples of Navadurga except the Temple of Mallikarjun are being maintained and repaired at the expense of the Navadurga Temple, that only the Gaunsos and Dolvis were present at the time of the framing of the Bye-laws, that the Mahajans of Navadurga Temple do not attend the Zatra at the Temple of Mallikarjun, that except for Mallikarjun and Navadurga Temples there is no Zatra in the other affiliate Temples and that there is no evidence to show that the property 'Bamiem' was allotted to Mallikarjun Temple by Navadurga Temple become immaterial consequent upon the unmistakable acknowledgement made by the plaintiffs' witnesses that this Temple was affiliated to the Temple of Navadurga and that the Zolmis were rendering services pleaded by the appellants not only at the said Navadurga Temple but also in the affiliate Temples like Ravalnath Temple including the suit Temple of Mallikarjun.
21. In the result the appeal is bound to succeed and is therefore allowed. Both the judgment of the trial Court and the judgment of the first Appellate Court which affirmed the judgment of the trial Court are hereby quashed and set aside. Consequently the suit of the plaintiffs/respondents stands dismissed with no order as costs in the special circumstances of the case. I may like to observe that inspite of the existent affiliation the plaintiffs may still try to seek its delinking from the mother Temple of Navadurga if a change of its 'Compromisso' is agreed upon by its Mahajans on their complying with the legal requirements envisaged by the Regulamento of Mazanias for the purpose of constituting themselves as independent and separate Mahajans.