Santosh Sajo Malik and Others Vs. Prakash Mahadev Malik and Others - Court Judgment

SooperKanoon Citationsooperkanoon.com/1144441
CourtMumbai Goa High Court
Decided OnApr-03-2014
Case NumberFirst Appeal No. 127 of 2008
JudgeZ.A. HAQ
AppellantSantosh Sajo Malik and Others
RespondentPrakash Mahadev Malik and Others
Excerpt:
oral judgment: 1. the appeal arises out of the judgment and decree passed by the district court in civil suit no.19 of 2005 on 31/1/2008 dismissing the suit of the plaintiffs. 2. the plaintiffs filed the suit praying for decree for declaration that the members of two malik families of hassapur are the mahajans of the œshri sateri devasthan hassapur-waddi? and are sole owners of the devasthan property surveyed under survey no.405/1 of hassapur village. they prayed for decree directing the bandhkam samiti members, the defendants no. 1 to 4 to render the accounts of construction/renovation of the temple of the devasthan. they further prayed for decree for perpetual injunction restraining the defendants, their officers, servants, agents or any person or persons acting through or under them from interfering in any manner with the ownership rights of the mahajans of the devasthan of shri sateri hassapur wadi. they further prayed for permanent injunction restraining the defendants, their officers, servants, agents or any person or persons claiming through or under them from undertaking any further construction in the devasthan property or in the said temple of sateri without the consent of the general body of mahajans. they prayed for decree for perpetual injunction restraining the defendants their family members and/or person or persons claiming through or under them from interfering in any manner with the management and administration of the devasthan preventing the plaintiffs and/or any other mahajans from performing the religious rites, festivities or functions in the devasthan or in the temple of the devasthan. the plaintiffs sought for the ancillary reliefs. 3. the defendants opposed the claim of the plaintiffs. the defendants no.1 to 4 filed the written statement and denied the allegations made by the plaintiffs against them. the above mentioned defendants specifically pleaded that the plaintiffs cannot be declared as the owners of the devasthan property. these defendants specifically stated that the bandhkam samiti is answerable to the two malik families of hassapur. 4. the learned judge proceeded with the trial and by the impugned judgment concluded that the plaintiffs have failed to prove that the mahajans of the temple of œshri sateri devasthan hassapur-waddi? are the owners of the property under survey no.405/1. the learned trial judge came to the conclusion that the plaintiffs have failed to prove that the construction/renovation of the temple by using the member of parliament local area development (mplad, for short) funds is contrary to the mplad scheme. the learned trial judge has concluded that the plaintiffs have failed to prove that they are entitled for the directions to the defendants no.1 to 4 to render the accounts of the construction. an issue regarding the maintainability of the suit was raised by the defendants and the learned trial judge has answered it against the defendants. the plaintiffs being aggrieved by the dismissal of the suit have filed this appeal. 5. heard shri deepak gaonkar, the learned advocate for the appellants, shri r. g. ramani, learned advocate for the respondents no.1 to 4 and shri m. salkar, learned government advocate for the respondents no.7 to 11. with the assistance of the learned advocate, i have examined the record. the following points arise for determination: (i) whether the appellants are the members of the two malik families of hassapur-waddi and being so whether they are entitled to participate in the management of the devasthan? (ii) whether the appellants are entitled for the decree directing the respondents no.1 to 4 to render the accounts in respect of the construction/renovation of the temple? (iii) whether the appellants are entitled for the decree of declaration that the members of the two malik families, as the mahajans, are the owners of the property surveyed under no.405/1. (iv) whether the funds of the mplad scheme could have been utilized for the construction/renovation of the said temple? (v) whether the judgment and decree passed by the trial court is proper? 6. it is undisputed that the devasthan is not registered under the devasthan regulations. it is undisputed that the members of two malik families of hassapur are the mahajans of the temple of the devasthan and accordingly are entitled to participate in the management and administration of the temple and the devasthan. though during the trial, controversy was raised as to whether the plaintiffs belong to the two malik families or not, there is sufficient material on the record to come to the conclusion that the plaintiffs are the members of the two malik families. the document (exhibit no. 60) dated 27/5/2001 shows that the father of the plaintiff no.1 was appointed as the member of the œnidhi samiti? and this fact is not denied by the defendants inasmuch as in paragraph no. 7-a of the written statement filed by the defendants no.1 to 4 they have admitted the genuineness of the resolution passed on 27/5/2001 which shows the name of the father of the plaintiff no.1. there is no serious dispute about the fact that the other plaintiffs are also members of one or the other of the two malik families of hassapur-waddi. at the time of hearing of the appeal, shri r.g. ramani, the learned advocate appearing for the respondents no.1 to 4, on instructions from respondent no.1, has accepted that the plaintiffs are the members of one or the other of the two malik families of hassapur-waddi. in view of this fact, it has to be held that the plaintiffs are the members of one or the other of the two malik families of hassapur-waddi. consequently, in view of the admitted position on the record that the members of the two malik families of hassapur-waddi are the mahajans of the devasthan, it is to be held that the plaintiffs are also the mahajans along with other members of the two malik families of hassapur. it follows that the plaintiffs, along with the other mahajans (members of the two malik families) are entitled to participate in the administration and management of the temple and the devasthan as per the traditional practice/ the established tradition. therefore, the plaintiffs are entitled for the decree for declaration that they are the mahajans along with the other members of the two mailk families of hasapur-waddi and are entitled to participate in the administration and the management of the temple and the devasthan. the plaintiffs are also entitled for the decree of perpetual injunction restraining the defendants, their family members and/or any person or persons claiming through or under them from preventing the plaintiffs from participating with the management and administration of the temple and the devasthan along with the other mahajans belonging to the two malik families of hassapur. 7. however, in view of the admitted position on the record that the property under survey no.405/1 is of œshri sateri devasthan hassapur-waddi? and it being admitted by the plaintiffs also, the plaintiffs cannot be granted decree for declaration that the mahajans of the temple of œ shri sateri devathan? are the owners of the property under survey no.405/1 of hassapur-waddi. the claim of the plaintiffs made in prayer clause (a) of the plaint is accordingly rejected. 8. in view of the finding that the plaintiffs are also mahajans along with the other members of the two malik families, the plaintiffs are entitled to seek accounts from the defendants no. 1 to 4. mr. r.g. ramani, the learned advocate for the respondents no.1 to 4 has submitted that the accounts were already shown to the general body in its meeting and the respondents no.1 to 4 are not interested in keeping back the accounts of the reconstruction/renovation of the temple of œsateri devasthan hassapur-waddi?. the grievance of the appellants throughout has been that they were not shown the accounts in respect of the reconstruction/renovation of the temple and also the accounts in respect of the construction of the hall undertaken with the funds made available from the mplad scheme. the plaintiffs/appellants being the mahajans of the devasthan are entitled to seek the accounts in respect of the reconstruction/renovation of the temple of œsateri devasthan hassapur-waddi? and also in respect of the construction of the hall undertaken with the funds made available from the mplad scheme. the plaintiffs/appellants are entitled for the decree for directions to the bandhkamn samiti members and more specifically the respondents no.1 to 4 to render the accounts of the reconstruction/renovation of the temple of devasthan and also to render the accounts in respect of the construction of the hall undertaken on the property of the œshri sateri devasthan? hassapur with the funds made available under the mplad scheme. the accounts are to be rendered to the appellants within three months from today. 9. the construction of the hall has been undertaken in the property of the devasthan with the assistance of the funds made available from the mplad scheme. the appellants have not been able to point out any specific provision which prohibits the construction of a hall on the property of the devasthan with the assistance of the funds made available from the mplad scheme. the grievance made by the appellants that no such construction can be undertaken in the property of the devasthan with the funds made available from the mplad scheme cannot be examined without there being any material on the record to that effect. therefore, the decree as prayed for by the appellants in that regard cannot be granted. 10. the appellants have prayed for a decree for perpetual injunction restraining the respondents, their officers, servants, agents, family members and/or person or persons claiming through them from undertaking any construction in the devasthan property or in the temple of œshri sateri devasthan? without the consent of the general body of the mahajans. the material on the record shows that the devasthan and the temple are being administered and managed by the members of the two malik families. therefore, it goes without saying that any construction work which is to be undertaken in the temple and the property of the devasthan cannot be done without following the proper procedure of putting the proposal for consideration before the general body of the members of the two malik families (mahajans) who are administering and managing the temple and the devasthan. 11. the appeal is accordingly partly allowed. (i) the judgment and decree passed by the learned trial judge on 31/01/2008 is set aside. (ii) it is declared that the appellants are the members of one or the other of the two malik families of hassapur-waddi and accordingly they are also mahajans along with the other members of the two malik families of hassapur-waddi and are entitled to participate in the administration and management of the temple of œshri sateri devasthan hassapur-waddi? and the devasthan, along with the other members of the two malik families of hassapur-waddi. (iii) the respondents no.1 to 4 are directed to render the accounts in respect of the reconstruction/renovation of the temple and the construction of the hall which is constructed on the property of the devasthan with the funds made available under the mplad scheme, to the appellants within three months from today. (iv) it is directed that no construction work in the devasthan property or in the temple can be undertaken without following the proper procedure of putting the proposal before the general body of the members of the two malik families/mahajans and obtaining consent/approval of the majority of the members referred above. (v) in the circumstances, the parties to bear their own costs.
Judgment:

Oral Judgment:

1. The appeal arises out of the Judgment and Decree passed by the District Court in Civil Suit No.19 of 2005 on 31/1/2008 dismissing the suit of the plaintiffs.

2. The plaintiffs filed the suit praying for decree for declaration that the members of two Malik families of Hassapur are the Mahajans of the œShri Sateri Devasthan Hassapur-Waddi? and are sole owners of the Devasthan property surveyed under survey no.405/1 of Hassapur village. They prayed for decree directing the Bandhkam Samiti members, the defendants no. 1 to 4 to render the accounts of construction/renovation of the temple of the Devasthan. They further prayed for decree for perpetual injunction restraining the defendants, their officers, servants, agents or any person or persons acting through or under them from interfering in any manner with the ownership rights of the Mahajans of the Devasthan of Shri Sateri Hassapur Wadi. They further prayed for permanent injunction restraining the defendants, their officers, servants, agents or any person or persons claiming through or under them from undertaking any further construction in the Devasthan property or in the said temple of Sateri without the consent of the general body of Mahajans. They prayed for decree for perpetual injunction restraining the defendants their family members and/or person or persons claiming through or under them from interfering in any manner with the management and administration of the Devasthan preventing the plaintiffs and/or any other Mahajans from performing the religious rites, festivities or functions in the Devasthan or in the temple of the Devasthan. The plaintiffs sought for the ancillary reliefs.

3. The defendants opposed the claim of the plaintiffs. The defendants no.1 to 4 filed the written statement and denied the allegations made by the plaintiffs against them. The above mentioned defendants specifically pleaded that the plaintiffs cannot be declared as the owners of the Devasthan property. These defendants specifically stated that the Bandhkam Samiti is answerable to the two Malik families of Hassapur.

4. The learned Judge proceeded with the trial and by the impugned Judgment concluded that the plaintiffs have failed to prove that the Mahajans of the temple of œShri Sateri Devasthan Hassapur-Waddi? are the owners of the property under survey no.405/1. The learned Trial Judge came to the conclusion that the plaintiffs have failed to prove that the construction/renovation of the temple by using the Member of Parliament Local Area Development (MPLAD, for short) funds is contrary to the MPLAD scheme. The learned Trial Judge has concluded that the plaintiffs have failed to prove that they are entitled for the directions to the defendants no.1 to 4 to render the accounts of the construction. An issue regarding the maintainability of the suit was raised by the defendants and the learned trial Judge has answered it against the defendants.

The plaintiffs being aggrieved by the dismissal of the suit have filed this appeal.

5. Heard Shri Deepak Gaonkar, the learned Advocate for the appellants, Shri R. G. Ramani, learned Advocate for the respondents no.1 to 4 and Shri M. Salkar, learned Government Advocate for the respondents no.7 to 11. With the assistance of the learned Advocate, I have examined the record.

The following points arise for determination:

(i) Whether the appellants are the members of the two Malik families of Hassapur-Waddi and being so whether they are entitled to participate in the management of the Devasthan?

(ii) Whether the appellants are entitled for the decree directing the respondents no.1 to 4 to render the accounts in respect of the construction/renovation of the temple?

(iii) Whether the appellants are entitled for the decree of declaration that the members of the two Malik families, as the Mahajans, are the owners of the property surveyed under no.405/1.

(iv) Whether the funds of the MPLAD scheme could have been utilized for the construction/renovation of the said temple?

(v) Whether the Judgment and Decree passed by the Trial Court is proper?

6. It is undisputed that the Devasthan is not registered under the Devasthan Regulations. It is undisputed that the members of two Malik families of Hassapur are the Mahajans of the temple of the Devasthan and accordingly are entitled to participate in the management and administration of the temple and the Devasthan. Though during the trial, controversy was raised as to whether the plaintiffs belong to the two Malik families or not, there is sufficient material on the record to come to the conclusion that the plaintiffs are the members of the two Malik families. The document (Exhibit no. 60) dated 27/5/2001 shows that the father of the plaintiff no.1 was appointed as the member of the œNidhi samiti? and this fact is not denied by the defendants inasmuch as in paragraph no. 7-A of the Written Statement filed by the defendants no.1 to 4 they have admitted the genuineness of the Resolution passed on 27/5/2001 which shows the name of the father of the plaintiff no.1. There is no serious dispute about the fact that the other plaintiffs are also members of one or the other of the two Malik families of Hassapur-Waddi. At the time of hearing of the Appeal, Shri R.G. Ramani, the learned Advocate appearing for the respondents no.1 to 4, on instructions from respondent no.1, has accepted that the plaintiffs are the members of one or the other of the two Malik families of Hassapur-Waddi. In view of this fact, it has to be held that the plaintiffs are the members of one or the other of the two Malik families of Hassapur-Waddi. Consequently, in view of the admitted position on the record that the members of the two Malik families of Hassapur-Waddi are the Mahajans of the Devasthan, it is to be held that the plaintiffs are also the Mahajans along with other members of the two Malik families of Hassapur. It follows that the plaintiffs, along with the other Mahajans (members of the two Malik families) are entitled to participate in the administration and management of the temple and the Devasthan as per the traditional practice/ the established tradition. Therefore, the plaintiffs are entitled for the decree for declaration that they are the Mahajans along with the other members of the two Mailk families of Hasapur-Waddi and are entitled to participate in the administration and the management of the temple and the Devasthan. The plaintiffs are also entitled for the decree of perpetual injunction restraining the defendants, their family members and/or any person or persons claiming through or under them from preventing the plaintiffs from participating with the management and administration of the temple and the Devasthan along with the other Mahajans belonging to the two Malik families of Hassapur.

7. However, in view of the admitted position on the record that the property under survey no.405/1 is of œShri Sateri Devasthan Hassapur-Waddi? and it being admitted by the plaintiffs also, the plaintiffs cannot be granted decree for declaration that the Mahajans of the temple of œ Shri Sateri Devathan? are the owners of the property under survey no.405/1 of Hassapur-Waddi. The claim of the plaintiffs made in prayer clause (a) of the plaint is accordingly rejected.

8. In view of the finding that the plaintiffs are also Mahajans along with the other members of the two Malik families, the plaintiffs are entitled to seek accounts from the defendants no. 1 to 4. Mr. R.G. Ramani, the learned Advocate for the respondents no.1 to 4 has submitted that the accounts were already shown to the General Body in its meeting and the respondents no.1 to 4 are not interested in keeping back the accounts of the reconstruction/renovation of the temple of œSateri Devasthan Hassapur-Waddi?. The grievance of the appellants throughout has been that they were not shown the accounts in respect of the reconstruction/renovation of the temple and also the accounts in respect of the construction of the hall undertaken with the funds made available from the MPLAD scheme. The plaintiffs/appellants being the Mahajans of the Devasthan are entitled to seek the accounts in respect of the reconstruction/renovation of the temple of œSateri Devasthan Hassapur-Waddi? and also in respect of the construction of the hall undertaken with the funds made available from the MPLAD scheme. The plaintiffs/appellants are entitled for the decree for directions to the Bandhkamn Samiti members and more specifically the respondents no.1 to 4 to render the accounts of the reconstruction/renovation of the temple of Devasthan and also to render the accounts in respect of the construction of the hall undertaken on the property of the œShri Sateri Devasthan? Hassapur with the funds made available under the MPLAD scheme. The accounts are to be rendered to the appellants within three months from today.

9. The construction of the hall has been undertaken in the property of the Devasthan with the assistance of the funds made available from the MPLAD scheme. The appellants have not been able to point out any specific provision which prohibits the construction of a hall on the property of the Devasthan with the assistance of the funds made available from the MPLAD scheme. The grievance made by the appellants that no such construction can be undertaken in the property of the Devasthan with the funds made available from the MPLAD scheme cannot be examined without there being any material on the record to that effect. Therefore, the decree as prayed for by the appellants in that regard cannot be granted.

10. The appellants have prayed for a decree for perpetual injunction restraining the respondents, their officers, servants, agents, family members and/or person or persons claiming through them from undertaking any construction in the Devasthan property or in the temple of œShri Sateri Devasthan? without the consent of the General Body of the Mahajans. The material on the record shows that the Devasthan and the temple are being administered and managed by the members of the two Malik families. Therefore, it goes without saying that any construction work which is to be undertaken in the temple and the property of the Devasthan cannot be done without following the proper procedure of putting the proposal for consideration before the General Body of the members of the two Malik families (Mahajans) who are administering and managing the temple and the Devasthan.

11. The appeal is accordingly partly allowed.

(i) The Judgment and Decree passed by the learned trial Judge on 31/01/2008 is set aside.

(ii) It is declared that the appellants are the members of one or the other of the two Malik families of Hassapur-Waddi and accordingly they are also Mahajans along with the other members of the two Malik families of Hassapur-Waddi and are entitled to participate in the administration and management of the temple of œShri Sateri Devasthan Hassapur-Waddi? and the Devasthan, along with the other members of the two Malik families of Hassapur-Waddi.

(iii) The respondents no.1 to 4 are directed to render the accounts in respect of the reconstruction/renovation of the temple and the construction of the hall which is constructed on the property of the Devasthan with the funds made available under the MPLAD scheme, to the appellants within three months from today.

(iv) It is directed that no construction work in the Devasthan property or in the temple can be undertaken without following the proper procedure of putting the proposal before the General Body of the Members of the two Malik families/Mahajans and obtaining consent/approval of the majority of the members referred above.

(v) In the circumstances, the parties to bear their own costs.