Bombay High Court
Vinod Madhavrao Shewale And Anr vs Ramakant Narhar Shewale And Anr on 17 June, 2016
Bench: T.V. Nalawade
1 SA 596 of 2011
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
Second Appeal No.596 of 2011
1) Vinod S/o. Madhavrao Shewale,
Age 45 years,
Occupation : Business,
R/o. Deogiri Colony,
Near Police Station Kranti Chowk,
Aurangabad.
2) Chandrashekhar S/o Balkrushna Shewale,
Age 50 years,
Occupation: Business,
Trustee and Member of
Shri. Ghrushneshwar Mandir
Deosthan, Ellora, Aurangabad. .. Appellants.
Versus
1) Ramakant S/o. Narhar Shewale,
Age 50 years,
Occupation : Business,
R/o. Shankarsingh Naik
High Court, Balaji Nagar,
Aurangabad.
2) Shri. Ghrushneshwar Mandir
Devasthan Trust, Verul,
Taluka Khultabad,
District Aurangabad
Through its President. .. Respondents.
--------
Shri. V.J. Dixit, Senior Advocate, instructed by Shri. L.V.
Sangit, Advocate, for appellants.
Shri. Hemant Surve, Advocate, for respondent No.1.
Shri. Milind Madhu Joshi, Advocate, for respondent No.2.
::: Uploaded on - 20/06/2016 ::: Downloaded on - 30/07/2016 05:44:31 :::
2 SA 596 of 2011
CORAM: T.V. NALAWADE, J.
DATE : 17th JUNE 2016.
JUDGMENT:
1) The appeal is filed against decision of trial
Court by two defendants of Regular Civil Suit No.230 of
2009 which was pending in the Court of the Civil Judge,
Junior Division, Khultabad, District Aurangabad and also
against the judgment and decree of Regular Civil Appeal
No.103/2010 which was pending in the District Court
Aurangabad. Relief of declaration and injunction is given
in favour of the plaintiff and this decision is challenged.
Both the sides are heard.
2) The plaintiff and two defendants are from
community of Gurav and they are entitled to render Seva,
service to Ghrushneswar Mandir Deostan situated at
Verul. It is the case of the plaintiff that the branch of
Shewale family has right to render Seva for one year in
alternate and such right is given to family of Dandge
which is of one year. The period of one year given to
Shewale branch is further divided and out of this one year
3 SA 596 of 2011
period, six months period is given to the branch of one
Balwant Shewale. Plaintiff, present two defendants and
one other branch of Baburao and Vasantrao are entitled to
get share in the period of remaining six months. It is the
case of the plaintiff that he has right of Seva of the period
of three months and the remaining three months period
can be divided amongst remaining three branches. The
branches of Baburao and Vasantrao were not party to the
suit, who, according to the plaintiff, is entitled to Seva of
at the most one month.
3) The relief of declaration was claimed by the
plaintiff that he has right to continue to render Seva for
the period of three months and it is on the basis of custom
and practice.
4) The aforesaid contentions of the plaintiff are
denied by the two branches of Shewale family who are
defendants. It is their case that these four branches of
Shewale are entitled to have equal period, of 45 days from
the period of six months. It is their case that father of the
plaintiff died when he was kid and as the family of the
4 SA 596 of 2011
plaintiff was in financial crisis, the other three branches
had allowed the plaintiff to render Seva for the period of
three months.
5) As per the scheme prepared by the Deostan
Trust, offerings which come to Deostan are kept in a
locked box known as "Dan-Peti" and the Trust is entitled
to get 25% share in those offerings and the remaining
75% offerings are handed to Gurav, the branch of Shewale
family which it is entitled to render Seva during that
particular period. Thus, it can be said that the real
interest is in the offerings, the material gains.
6) It appears that in the year 2005 the other three
branches of Shewale family submitted to the Deostan
Trust that as in the past the period needs to be distributed
and each branch needs to be given period of 45 days. The
plaintiff did not accept this proposal by contending that he
had right to render Seva for the period of three months.
This dispute was taken to the office of the Assistant
Charity Commissioner by Deostan Trust. It appears that
some proceeding was filed by the plaintiff also in the
5 SA 596 of 2011
office of the Assistant Charity Commissioner. The
Assistant Charity Commissioner made some interim
arrangement and directed to see that each branch gets
45 days till the civil Court decides the dispute. Then the
plaintiff approached the Civil Court.
7) This Court, other Hon'ble Judge, admitted the
appeal on 6-1-2012 by formulating following substantial
questions of law.
(i) Whether the trial Court and the lower
appellate Court have correctly interpreted
Exh.74 as it exists and have recorded the
findings correctly thereby giving declaration that
respondent No.1 is entitled for three months
Sevapali?
(ii) Whether both the Courts below have
correctly interpreted Exh.74 and Exh.86 which
were brought on record ?
8) This Court after hearing arguments and going
through the record expressed that this Court will be
deciding three more points by order dated 16-6-2016 as
under :-
6 SA 596 of 2011
(i) Whether it was mandatory for the trial Court
to frame issue of existence of custom and whether
the burden to prove such custom was on the
plaintiff ?
(ii) Whether the nature of declaration claimed
by the plaintiff was not proper and the Courts
below have committed error in holding that the
declaration that plaintiff is entitled to continue to
use his right of 3 months 'Pali' can be given when
the other side had denied the right itself ?
(iii) Whether in view of the nature of relief
claimed by the plaintiff and which could have been
given in the suit, other parties viz. Baburao and
Vasantrao, one branch was necessary party to the
suit and for non joinder of necessary party, the
suit itself was bad and the Courts below
committed error in deciding this point ?
9) This Court has carefully gone through the
pleadings in the plaint and the pleadings in the written
statement. Only in the relief clause the plaintiff
contended that he is entitled to declaration on the basis
of custom/practice. When anybody claims any right on the
basis of custom, the exact custom needs to be stated in
the pleadings. Due to this, the other side gets opportunity.
The Court also gets opportunity to frame issues on the
basis of such pleadings and the reasons or objects behind
the custom can also be ascertained. This was not done. On
the other hand it was the case of the defendants that some
7 SA 596 of 2011
temporary arrangement was made and in view of that
temporary arrangement the period of three months was
given to the plaintiff. Thus it was the case of the
defendants that there was some arrangement but the
right was of temporary nature. The plaintiff is relying on
document at Exhibit 74 which was purportedly submitted
to the Deosthan Trust by one of the four branches. In that
document the distribution of the period was shown. Only
one person, who according to the plaintiff had submitted
the proposal, had signed on that document. The evidence
in the cross examination of the plaintiff shows that the
arrangement even of distribution of the period was made
on the basis of the agreement and the agreements are
reached in the meetings of the families.
10) In view of the aforesaid circumstances it was
necessary for the Courts below to consider the case of the
plaintiff of custom. There was no pleading of the nature of
arrangement made by the parties and the relief was
claimed on the basis of custom. These two things are
entirely different. If there was agreement it will be
necessary for the plaintiff to establish that all the
8 SA 596 of 2011
branches of Shewale family who are entitled for the share
in the period of six months had agreed to it and it was the
permanent arrangement for some reason which ought to
have been pleaded and only after that the case of the
plaintiff could have been considered.
11) So far as nature of relief is concerned, it can be
said that the Courts below were under misconception.
The Courts below have observed that the plaintiff was
claiming declaration that he has right to continue to enjoy
the period of three months and that way declaration can
be claimed and needs to be given. The right of the plaintiff
itself of three months Seva period is in dispute and there
is cloud on it and in view of this circumstance it was
necessary for the plaintiff to claim relief of declaration
that he is entitled to enjoy the right of Seva for three
months period from the aforesaid six months period.
Thus, the relief claimed was not proper and the relief
given cannot remain there due to aforesaid
circumstances.
9 SA 596 of 2011
12) The aforesaid circumstances lead to one more
point viz. the point of want of necessary parties. If there
was agreement and the plaintiff was claiming right of
aforesaid nature, it is necessary for the Court to presume
that the other three branches will be affected. The other
three branches are necessary parties in such a suit and
the suit could not have been decreed in absence of one of
the branches.
ig This circumstance is not properly
considered by the Courts below and this circumstance
also goes to the root of the matter.
13) In view of the aforesaid circumstances this
Court could have simply allowed the appeal and could
have dismissed the suit. However, in view of existence of
document like Exhibit 74 and for enabling the parties to
take the decision of the civil Court on their rights this
Court holds that the judgments and the decrees of the
Courts below need to be set aside and the matter needs to
be remanded back. In view of the aforesaid circumstances
plaintiff can be allowed to amend the pleadings to see that
the suit becomes tenable, all the necessary parties are
joined in the suit and the base in respect of right claimed
10 SA 596 of 2011
is mentioned in the plaint. If the pleadings in the plaint
are amended, there will be right to the defendants to have
consequential amendment of the pleadings of the written
statement. On that basis and in view of the aforesaid
discussion, the trial Court will have to recast the issues.
Both the sides are eagre to have expeditious disposal of
the matter.
14) Some interim arrangement is already made and
each party is rendering Seva for the period of 45 days.
This arrangement needs to be continued till the decision
of the suit by the trial Court. It appears that already
arrangement is made to see that the offerings in respect
of the disputed period are separated and account is
maintained in respect of the offerings. That is to be
continued and for separation of those offering care is to
be taken to see that both the parties remain present at
the time of separation and creation of the account.
15) In view of the aforesaid discussion, all the
aforesaid points are answered accordingly against the
plaintiff and following order is made :--
11 SA 596 of 2011
16) The appeal is allowed. The judgments and
decrees of the Courts below are hereby set aside. The
matter is remand back to the trial Court for fresh trial.
17) The parties to appear before the trial Court on
1st July 2016. Record and proceeding be sent back
forthwith. The concerned Court can be asked to send
special
messenger for collecting the record. The
temporary arrangement already made is to continue till
decision of the suit. Amendment in the pleadings, as
already observed is to be allowed.
Sd/-
(T.V. NALAWADE, J. )
rsl
