Public Trust Shri Ramjanki Mandir Babai Vs. Mahant Bhagwandas Chela Mahant Shiv Narayan - Court Judgment

M.A.No.2972/2011.

6/8/2013.

Mr.P.R.

Bhave, Senior Advocate with Mr.B.P.

Yadav, Advocate for the appellants.

Mr.J.P.

Agarwal, Advocate for the respondent No.1.

Mr.B.P.

Mishra, Dy.G.A.

for the respondents No.2 and 5 / State.

Mr.Amit Dubey, Advocate for the respondents No.6, 8, 12, 13 and 15.

This appeal was earlier disposed of vide order dated 13.2.2013 with a direction to the trial court to decide the suit as early as possible within a period of 8 months till then interim order passed by this court on 26.4.2012 shall remain in force.

This court had stayed the impugned order dated 6.7.2011 passed in civil suit No.31-A/2011.

Review Petition No.165/13 was filed for review of the order dated 13.2.2013 and this appeal has been restored to its original number vide order dated 28.6.2013.

This miscellaneous appeal has been filed against the order dated 6.7.2011 passed by learned FiRs.Additional District Judge, Raisen in Civil suit No.31-A/11 allowing the application filed by the respondent No.1 / plaintiff under Order 39 Rule 1 and 2 CPC.

Respondent No.1 / plaintiff is the priest of the temple Ramjanki situated at Raisen and successor of earlier Manahant Shivnarayan.

A Public trust has been created vide order dated 14.6.2010 passed by the Registrar, Public Trust and the Registrar has further directed that the land of temple be auctioned and highest bidder be selected from the competent authority.

The learned trial court by the impugned order 2 allowed the application filed by the respondent No.1 / plaintiff under Order 39 Rule 1 and 2 CPC and directed not to interfere in the possession of the plaintiff / respondent No.1 till final disposal of the suit and further directed not to auction the land in compliance of the order of Registrar, Public Trust.

It is submitted by learned counsel for the appellants that the trust has been rightly created as the property of the temple and the temple belong to public and trust has been created by following due procedure of proclamation and deciding objections and thereafter publication in the State Gazette dated 4.6.2010.

Learned counsel for the appellants has further pointed out that he has raised objections regarding the suit being time barred as the suit has been filed after withdrawal of fiRs.suit and for hearing of which the trial court was having jurisdiction, therefore, the plaintiff cannot get benefit of Section 14 of the Limitation Act but the question regarding limitation can be seen by the trial court itself.

So far as the temporary injunction is concerned, learned counsel for the appellants has drawn attention towards the prayer clause of the plaint in which the plaintiff himself has claimed that the amount received on auction of the lease for the year 2010-11 be given to him, therefore, it is clear that on the date of filing of the suit which is filed on 25.4.2011 which falls within the period of lease 2010-11, plaintiff was not in possession of the suit land and by over looking this admission, the trial court has allowed the application filed by the plaintiff.

Learned counsel for the respondent No.1 has submitted that the temple and the land annexed with it, is the personal property of the 3 earlier Mahant who has been succeeded by the plaintiff, therefore, the suit property is personal property and no public trust can be created in respect of the suit property.

So far as the question of grant of temporary injunction is concerned, the plaintiff has to prove his prima facie.

The plaintiff himself has claimed that he be paid the amount by auctioning the land for the year 2010-11 which means that the plaintiff was not in possession of the suit land on the date of filing of the suit.

Therefore, the question of protection of plaintiff’s possession on the date of filing of the suit does not arise.

Further, since the plaintiff has claimed the amount received on auction of the suit land, loss if any sustained by the plaintiff cannot be said to be an irreparable loss.

Learned counsel for the respondent No.1 has further submitted that he has filed an application under Order 26 Rule 9 CPC for ascertaining the fact that the plaintiff is in possession of the suit land or the lessee is in possession of the suit land after auction of the suit land.

From the relief claimed by the plaintiff himself it is clear that the plaintiff is not in possession of the suit land as he has claimed the amount received on auction of the suit land.

Learned counsel for both the sides have cited judgments on different points but looking to the admissions made by the respondent No.1 / plaintiff and further looking to relief claimed in the plaint with regard to the amount received on auction of the suit land, the judgments cited by learned counsel for both the sides are not applicable to the present case, hence, they are not referred.

Keeping in view the aforesaid, the learned trial court is not justified in passing the impugned order of temporary injunction, 4 therefore, the appeal is allowed and the impugned order dated 6.7.2011 passed by learned trial court is hereby set-aside and the trial court is directed to expedite the trial and further to decide the question of entitlement and refund of the amount received on auction of the disputed suit land.

It is further directed that the amount received by auction shall be deposited by the appellants in the court to be paid to the plaintiff, if he succeeds in the suit.

The amount may be deposited with the Nationalized Bank in Fixed Deposit so that parties may not suffer loss due to the amount deposited in the court.

The appeal is disposed of accordingly.

(Anil Sharma) Judge Parouha/-