Judgment:
U.C. Maheshwari, J.
1. The appellants/defendants being aggrieved by the judgment and decree dated 7-12-2005 passed by District Judge, East Nimad, Khandwa in Civil Regular Appeal No. 6-A/2004 affirming the judgment and decree dated 2-9-2004 passed by 1st Civil Judge Class-1, Khandwa in Civil Original Suit No. 31-A/2000, decreeing the suit of the respondent No. 1 for declaration, mandatory injunction and perpetual injunction against them, have filed this appeal.
2. The facts giving rise to this appeal in short are that the respondent No. 1, herein being discipline and worshiper of Late Swami Chandrashekhar Nandji (hereinafter called as 'Swami Ji') filed a suit for declaration, mandatory injunction and perpetual injunction against the appellants and respondent No. 2 to 4 in the representative capacity with respect of a Tomb of said Swami Ji situated in the Tomb premises of Dadaji Dhuniwale at Khandwa contending that said Swami Ji being disciple of Late Dadaji Dhuniwale while the brother fellow of late Chhote Dada Ji Dhuniwale had died in the year 1943, thereafter his Tomb was made in the Tomb premises of said Dadaji Dhuniwale and devotees have also constructed the devotee's premises there. Initially the said Tomb was looked after by Chhabi Narayan Ji the disciple of said Swami Ji by making prayer and offering the foods to such Tomb who died on 17-9-1986. Subsequent to it appellant/ defendant No. 3 Mata Prasad Ozha, who was working in the Government Hospital, at Burhanpur after his retirement, had come with his family to reside in such premises. On taking objection that the Tomb premises could not be used for residential purpose, the appellant/defendant No. 3 assured to other devotees to vacate the premises on availability of some other place. While residing in such place the appellants are creating the obstructions and inconvenience to the devotees in Darshan and prayer of such Tomb. Total area of such Tomb and its premises is at about 920 sq. ft. the same was recorded in the Government record in the name of late Swami Chandrashekhar Nandji but later in view of the working of Chhabi Narayan, making prayer and offering to Tomb, his name was recorded and subsequent to his death the appellants have come in possession illegally and in such premises got mutated their names in the Revenue Record. On account of creating the obstruction and inconvenience to the devotees in Darshan of such Tomb by the appellants, the respondent No. 1 being one of the disciple of Swami Ji and devotee of such Tomb, after giving statutory notice to respondent No. 2 to 4 under Section 80 of C. P. C. for rectification of illegal mutation in the Revenue Records and to remove the obstructions created by the appellants at such place, has filed the suit. It is also stated that on earlier occasion the appellants herein also filed a suit for perpetual injunction in respect of aforesaid Tomb premises against the State of Madhya Pradesh, but the same was dismissed in default for want of prosecution. It is also stated that said Tomb and its building being religious place is a center of public sentiments and the emotions. The same is not the personal property of the appellants. With these averments the respondent No. 1 filed the representative suit with a prayer to declare the aforesaid Tomb and it's premises described in the plaint to be a public religious property and, the appellants did not have any right, title or interest in it and the respondent and other devotees had uninterrupted right to go there for making the prayer and offer, in pursuance of it the mandatory injunction for removing the appellants' obstruction and vacating the premises and to rectify their mutation with a prayer of perpetual injunction restraining the appellants from interfering or creating any obstruction in entrance of the respondent No. 1 and other devotees of the Tomb for making their prayer and offering to such religious place are prayed.
3. In the written statement of the appellants, it is stated that devotees of Swami had not made any construction in such Tomb, the same was looked after by Chhabi Narayan Ji Ozha, who was the disciple of said Swami Ji and after demise of Chhabi Naraya Ji the appellant Awadesh Ozha is looking after the same as his personal property. In the same premises, the appellant Awdhesh Ozha is running a shop and whenever the shop remains open at that time such Tomb premises also remains open. Said Chhabi Narayan was the nearest family member of the appellant, hence after his demise the name of appellants are correctly/ rightly mutated in the Revenue Record as per custom of the family. It is further pleaded that the respondent No. 1 /plaintiff being a naughty person did not have any right to file the suit and no order could be passed contrary to the title and the possession of the appellants with respect of aforesaid their family land and the building, as such the respondents/plaintiffs did not have any cause of action against the appellants. Apart this by denying the other averments of the plaint the prayer for dismissal of the suit is made.
4. In the written statement of respondent No. 1 to 3, it is stated that such Tomb is situated on the Government land, hence no one has any right to reside or run the business at such place and the State Government has full authority to remove the concerning person from such illegal possession. On dated 20-5-1999 the encroachment of the appellants by demolishing the pakka construction of 1010 sq. ft. on plot No. 592 was removed. The disputed premises is still existing on 920 sq. ft. for which a notice of removal has been given but keeping in view religious sentiments of the devotees no further proceeding is taken up in the matter. It is further stated that the name of said Swami Ji was recorded in the record but subsequently the appellants got mutated their names in the Revenue Record by committing fraud. On earlier occasion the appellants filed a suit against such respondents but the same was dismissed, in such premises, they do not have any right to show their title on such property. As per the record of the rights for the year 1911-12 such land was known as the forest of small trees (Chhote Jhad Ka Jangal), and the same was recorded in the name of Totaram Numberdar, later it was shown to be the Government land. In the record of rights for the year 1961-62 such land is recorded in the name of State Government in which the endorsement of said Tomb is also mentioned. Subsequently, although the name of Chhabi Narayan was replaced but on what basis or under which right it was carried out, the same is a subject matter of inquiry. In such premises Chhabi Narayan or the appellants do not have any right in such Tomb or it's property.
5. In view of pleadings of the parties after casting the issues and recording the evidence on appreciation of it, the suit of the respondent No. 1 was decreed by the trial Court. On challenging the same by the respondents before subordinate appellate Court after extending the opportunity of hearing, on consideration by affirming the judgment and decree of the trial Court such appeal has been dismissed, hence, the appellants have come forward with this appeal.
6. Shri Ashok Lalwani, learned appearing counsel of the appellants after taking me through pleadings, evidence led by the parties and the documents available on record argued that the respondent No. 1/plaintiff did not have any locus standi to file the impugned suit with respect of alleged Tomb or its premises in representative capacity. In continuation of it, he said that the provisions enacted under Order 1, Rule 8, C. P. C. to file the suit in the representative capacity are not complied with by the respondent No. 1 or by the trial Court, in the lack of it, the suit was wrongly entertained and decreed by the trial Court on such question by affirming the findings of the trial Court, the appellate Court has also committed error. He further said that respondent No. 1 / plaintiff was neither the owner of the Tomb nor having any right to file the suit in any capacity unless the permission or sanction is obtained from the Advocate General or the State Government in view of the provision of Sections 91-92 of C. P. C. Even if such permission is granted then the suit could not be filed by less than two persons. As per further submission neither the suit is properly valued nor the ad-valorem Court fees is paid. According to him the impugned suit in the present nature could not be entertained under the provision of Section 8 of Suits Valuation Act. It is also argued that in the available facts and circumstance aforesaid Tomb and its property appears to be the property of some constructive trust, hence, without following the provision of Madhya Pradesh Public Trusts Act, the impugned suit being prematured could not be entertained by the Court. Such Tomb is situated in the Nazul Land, hence except the Government no any other person like the respondent No. 1 did not have any authority to file the suit for declaration, mandatory injunction or/and perpetual injunction contrary to the rights of the appellants inherited from their predecessor Chhabi Narayan who got his name mutated on this property as disciple of said Swami Ji and the respondent No. 1 /plaintiff had no authority to challenge the same. The findings of both the Courts below being contrary to the available evidence on record are not sustainable. In addition, it was argued that any devotee of Tomb has no authority to take the possession of the same or to get any injunction in any form either mandatory or perpetual against the right and interest of the appellant in respect of such place and prayed for admission and allowing the appeal on the proposed substantial question of law mentioned in the appeal memo.
7. Having heard the counsel at length, on perusing the records and the judgments of the Courts below, I am of the considered view that the findings given by the Courts below are based on sound appreciation of evidence and the same appears to be a findings of facts, do not give rise to any question of law much less the substantial question of law in the matter.
8. As per findings of both the Courts below the aforesaid Tomb was established and situated at the Government land and the name of said Swami Ji was also endorsed in such record. It was neither the property of Chhabi Narayan nor any disciple of said Swami Ji. Although the same was constructed and established by the various devotees including Chhabi Narayan, who was making the prayer and offering the food to such Tomb in his life time and after his demise the present appellants are claiming the right of ownership with respect of the same, but the same has not been found to be proved. In such premises not only the possession of the appellants was held illegal but their activities on such place are also found to be contrary to the religious sentiments and the emotion of the devotees. It is also held by both the Courts below that such religious place could not be used by any person like appellants for the purpose of their residence by disturbing and creating obstruction in the rights of devotees and the persons who are having the religious right to approach such place for making their prayer and offering to the Tomb. It appears from the record that such Tomb is situated near the very popular and religious Tombs of Bade Dadaji Dhuniwale and Chhote Dadaji Dhuniwale the disciple and brother fellow of disciple, of said Swami Chandra-shekhar Nand Ji respectively. It is apparent from the record that besides Chhabi Narayan the other devotees were used to visit such place for making their prayer and offering to Tomb. On appreciation of the evidence it was held by the Courts below that such premises was never used for the residence of family but subsequent to death of Chhabi Narayan and after retirement from service of Government Hospital, Burhanpur, the appellant No. 3 Mata Prasad by taking advantage of the services of his father toward the Tomb, entered in such premises illegally and thereby they created the obstruction and inconvenience in the rights of the devotees to make their prayer and offer. Such findings of both the Courts below being based on evidence are findings of fact, the same do not give rise to any question of law, much less the substantial question of law. It is settled proposition of law that concurrent findings based on appreciation of the evidence being finding of facts could not be interfered under Section 100 of C. P. C. at the stage of second appeal as laid down by the Apex Court in the matter of Ishwardas Jain v. Sohan Lal reported in : AIR 2000 SC 426 and of Santosh Hazari v. Purushottam Tiwari reported in AIR 2001 SC 965.
9. So far argument of the appellants' counsel that respondent No. 1/plaintiff has neither any locus standi to file the suit nor the same was filed in accordance with the provision of Order 1, Rule 8 of C. P. C. is concerned, as per concurrent findings of the Courts below the respondent No. 1/plaintiff has been held to be one of the devotees of such Tomb and in such premises, if his religious sentiments or emotions are hurt by the act of the appellants then being an affected person the respondent No. 1 had a right, on his own behalf and also in the interest of other devotees to file the representative suit under the aforesaid provisions.
10. So far compliance of Order 1, Rule 8 of C.P.C. is concerned, it is apparent that after filing the suit an application under Order 1, Rule 8, C. P. C. was filed by respondent No. 1, the same was allowed vide order dated 3-5-2000 and he was permitted to prosecute the suit under the representative capacity. In compliance of such provision to invite the objections of the other affected persons/ devotees the direction for publishing the notice in daily newspaper Dainik Bhaskar and Nai Dunia was also given in such order. As per such direction the notice was published in such newspapers, the same are available on the record. In such circumstance, the approach of the Courts below holding locusstandi of respondent No. 1 /plaintiff to file and prosecute the suit in the representative capacity do not appear to be contrary to any existing law. On arising the occasion the aforesaid question is also answered by the Mysore High Court in the matter of Veerbasavaradhya and Ors. v. Devotees of Lingadagudi Mutt and Ors. reported in AIR 1973 Mys 280 in which it is held as under:
22. It was however next contended by Sri Sundara Swamy that the suit was not maintainable since the consent of the Advocate General had not been obtained as required by Section 92 of the Code of Civil Procedure before it was instituted and that the plaintiffs had no right to institute the suit under Order 1, Rule 8 of the Code of Civil Procedure. The present suit is one for possession instituted by some of the devotees in a representative capacity for possession of the properties belonging to the trust. Section 92 is applicable only to those suits under which the reliefs claimed are those enumerated in Section 92. A suit for possession against a person who is not a trustee is not one enumerated in Section 92. Vide the decision in Harendra Nath v. Kaliram Das : AIR 1972 SC 246. Hence, the consent of the Advocate General was not necessary. It is not doubt true that the shebait or manager who is in-charge of the administration of the properties belonging to a deity can institute a suit for recovery of possession of the same. That however, does not disentitle the devotees or worshippers who are interested in the deity in maintaining a suit on behalf of the entire body of devotees with the leave of the Court under Order 1, Rule 8 of the Code of Civil Procedure against an alienee of temple property alleging that the alienation is not binding on the deity. The principle that such a right is in the body of worshippers is recognised by Indian Courts. In Sri Veerabhadraswami v. Maya Kone AIR 1940 Mad 81 such a suit was held to be maintainable. In another decision of this Court in Poona Setty v. B. N. Aradhya a suit filed in a representative capacity of persons interested in a religious or charitable trust for a similar relief was decreed by this Court. In Mukaremdas Mannudas v. Chhagan Kisan Bhawsar : AIR 1959 Bom 491, a suit against the transferees from the head of a math belonging to vaishnava Bairagi community for declaration that property in their hands is trust property and for possession was held to be outside the scope of Section 92 of the Code of Civil Procedure and that the suit filed by the members of the Bairagi community who were interested in the math in a representative capacity under Order 1, Rule 8 of the Code of Civil Procedure was held to be maintainable. We, therefore, reject the contention that the present suit was not maintainable for the reasons mentioned above.
11. So far the argument of the appellants' counsel with respect of the provision of Sections 91 and 92 of C. P. C. are concerned in view of the aforesaid findings based on the judgment of Mysore High Court holding the locus standi of the respondent No. 1 /plaintiff for filing the representative suit, such argument does not require any consideration in the available circumstances. Apart this Sub-section (2) of Section 91 does not debar the person like the respondent No. 1 to file the suit for declaration and injunction in the circumstance when his personal right is affected by any activities of the other persons like the appellants in the case at hand. While the Section 92 of C. P. C. being for different purpose is not relevant with the present dispute then such situation is also not giving rise to any question of law much less substantial question of law.
12. So far objection of the appellants regarding valuation of the suit on the market rate and the payment of ad valorem Court fees are concerned, firstly I have not been appraised by the appellants' counsel with any legal position showing that the suit relating to the religious places like Tomb or Temple are valued for the purpose of jurisdiction on their market value and requires the ad-valorem Court fees for the purpose of declaring and/or protecting the religious right and for issuing the mandatory or perpetual injunction regarding such rights. Suit for declaration of such right or for issuing such injunctions could be filed on a fixed Court fees and the same has been filed by the respondent No. 1 accordingly. In view of the aforesaid argument of the counsel based on Section 8 of Suits Valuation Act does not appear to be relevant in the present matter. In such premises the approach of the Courts below in this regard do not appear to be contrary to law and the same does not give rise to any question of law much less substantial question of law.
13. The argument of the appellants' counsel that except the State of Madhya Pradesh or its authority, no other person like respondent No. 1 have any right to initiate the proceedings against the appellants for their removal or eviction from the aforesaid Tomb's premises is concerned, it is apparent fact on record that some of the action was taken against the appellants by the State Government but taking into consideration the religious place the same have not been implemented. Besides the above in the matter relating to the religious feeling the devotees like respondent No. 1 can take the action for removal the obstruction from the religious place as held in the former para of this order.
14. It is apparent from the prayer clause of the plaint that the suit was not filed by the respondent No. 1 /plaintiff to obtain the possession for himself but the same is filed for mandatory injunction to remove the obstruction created by the appellants with a prayer to declare the rights of devotees to make the prayer and offering to the Tomb along with a prayer to declare the mutation of the appellants in the revenue record ab initio void with a perpetual injunction against them not to interfere in making the prayer or offering to the Tomb by the devotees including respondent No. 1 himself, accordingly it is not a suit for possession, so such question is also not giving any circumstance in favour of the appellants for framing any substantial question of law.
15. In view of the aforesaid discussion, the approach and findings of the Courts below do not appear to be perverse either with the record or contrary to law. The same are not giving rise to any question of law, rather than substantial question of law in the matter. Hence, this appeal being devoid of any merits deserves to be and is hereby dismissed at the stage of motion hearing.