Raghunathbuwa Narayanbuwa ... vs Rangnathbuwa Bhanudasbuwa ...
2021 Latest Caselaw 8507 Bom

               IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                          BENCH AT AURANGABAD


                917 CIVIL APPLICATION NO.4577 OF 2021
                                 IN
                            CA/3642/2018
                                 IN
                            CA/1428/2017
                                 IN
                             FA/28/1996

                   RAGHUNATHBUWA NARAYANBUWA GOSAWI

                                        VERSUS

       RANGNATHBUWA BHANUDASBUWA GOSAVI (DIED) THR LRS
                    MADHUSUDAN AND ORS

                                  ...
 Senior Counsel for Applicant : Mr. Vijay Dixit i/b Advocate Mr. Dabir
                                 A.M.
      Advocate for Respondents 1A to 1-D: Mr. S. S. Thombre
          AGP for Respondent No.2-State : Mr. S. S. Dande
Senior Counsel Mr. R. S. Deshmukh i/b Advocate Mr. D. R. Deshmukh
                          (in CA/4099/2016)
             Advocate Mr. G. S. Rane (in RA/45/2014)
   Advocate Mr. Shaikh Mujtaba Gulam Mustafa (in RA/46/2014)
  Advocate Mr. P.R.Katneshwarkar (in RA/60/2014, RA/154/2013)
                                  ...

                                    CORAM :   SMT.VIBHA KANKANWADI, J.
                                    DATE :    24-06-2021.

ORDER :

1. The checkered history of the dispute has once again brought this

application before this Court. Though at the outset it can be said that

in the past when similar applications were filed, in order dated 16-01-

2 CA 4577-2021

2014 (Shri Justice K. U. Chandiwal's order) it was observed that the

parties are expected to arrange annual turn and in respect of Sal-

Pali (lky&ikGh) and Palkhi (iky[kh) as indicated in second appeal without

resorting any application before this Court. Now in this application

i.e. Civil Application No.4577 of 2021 the applicants are praying

thus;

"a) Respondent nos.1-1A to 1-1D in common and Respondent no.1-1C in particular be directed to handover charge/sal-pali of both the temples of Saint Eknath Maharaj situated at Paithan to the applicant during pendency of the Civil Application No.3642/2018 in First Appeal No.28 / 1996 as per directions of the Hon'ble Court set out in Paragraph no.5 "A" to "F" of Order dated 28-03-2018.

b) For the purpose of handing over the charge/ Sal-pali the applicant be given necessary Police Protection from Police Station, Paithan, Tal. Paithan, Dist. Aurangabad through Respondent no.2.

c) Pending hearing and final disposal of the instant Civil Application, Respondent nos.1-1A to 1-1D in common and Respondent no.1-1C in particular be directed to handover charge/sal-pali of both the temples of Saint Eknath Maharaj situated at Paithan tot he applicant during pendency of the Civil

3 CA 4577-2021

application No.3642/2018 in First Appeal No.28/1996 as per directions of the Hon'ble Court set out in Paragraph no.5"A" to "F" of Order dated 28-03-

2018..."

2. Heard all the parties as referred above. Though some of them

are not parties to the present application, yet the learned Advocates

representing those parties had appeared suo-motu. At the outset, it

can be seen that almost all the respondents are of the view that

since the review applications are also pending and the first appeal

itself is pending endeavour should be to take up all the applications

for final disposal. To this it can be said that definitely those

applications require consideration but what has been prayed and it

can be certainly observed that even in the past by passing orders in

respect of Sal-Pali (lky&ikGh), a certain arrangements for the

management of the two temples at Paithan will have to be

channelized till the final disposal. It is not that any of the party is

avoiding the final hearing of the first appeal but it is dependent on

the time available with the Court and secondly availability of all the

Advocates concerned. Therefore, till the final disposal, such

arrangements are necessary. Definitely since first appeal is of 1996,

it will have to be expedited and once again at the cost of repetition it

4 CA 4577-2021

can be said that till it is disposed of, the rights which were made

available to the parties earlier are required to be considered.

3. Before this Court there was Civil Application No.1428 of 2017

which was decided on 05-06-2017. The entire history leading to the

first appeal and the history of other litigation between or concerning

the parties was considered in detail. Now though it is tempting to

reproduce that history just for the better understanding of the

dispute, this Court is refraining itself to cut short the length of the

order. Suffice it to say that based on the narration of the said

history further order is passed. Now the facts further are required to

be considered because after the said Civil Application No.1428 of

2017 was decided by this Court on 05-06-2017 which was also on

the basis of the earlier orders passed by this Court, especially 16-

01-2014 and 13-03-2015, the said application which was filed by the

present applicant itself was allowed in terms of prayer Clause "B".

That means, pending the hearing and final disposal of the first

appeal, the respondent No.1-C therein i.e. Haripandit s/o

Rangnathbuwa Gosawi was directed to hand over charge of Sal-Pali

(lky&ikGh) of both the temples of Sant Eknath Maharaj at Paithan from

05-06-2017 till 10-03-2018 to the applicant. Further, even the

5 CA 4577-2021

alternative prayer of directing respondent No.3 Managing Trustee of

the Shri Sant Eknath Maharaj Trust, Paithan was directed to carry

out the exchange of Sal-Pali (lky&ikGh) in his supervision. Thereafter,

Rangnathbuwa Gosavi's legal heirs who were respondent No.1-A to

1-D in Civil Application No.1428 of 2017 filed Civil Application

No.3642 of 2018 before this Court and by order dated 28-03-2018

the said civil application was disposed of with following directions ;

"[a] For the year 2018, since "Falgun Vaidya Navami" has already passed by, Raghunathbuwa will hand over the charge to the applicants represented by Hari Pandit on 29-03-2018 at 5.00 p.m. The handing over charge by Raghunathbuwa and taking over the charge by Hari Pandit on behalf of the applicants, would be peaceful and uneventful.

[b] Next year, which will be 2019, Hari Pandit on behalf of all these applicants will peacefully handover er the charge on "Falgun Vaidya Navami" at 5.00 p.m. to Raghunathbuwa and the said handing over of charge would not be delayed even by a day.

               [c]      In       2020,     Raghunathbuwa               will     similarly
               handover          the     charge       to   the   other        branch      of

Meghasham through Hari Pandit on behalf of that branch on "Falgun Vaidya Navami" at 5.00 p.m. without even a day's delay.

                                                6                               CA 4577-2021




               [d]      The above illustrations are purely to ensure
               that there would be a peaceful handing over of

charge and taking over of charge which will continue in a similar fashion till FA No.28/1996 along with connected first appeals are decided.

[e] This order is passed today by the consent of the parties with the request that their entire submissions need not be recorded as they would virtually amount to arguing the very first appeals.

[f] All contentions of these litigating sides concerning all the first appeals are kept open."

Thus, there appears to be the compliance of both the orders

referred above, however it appears that one Shashikantbuwa s/o

Suryakantbuwa Jahagirdar had approached Hon'ble Apex Court in

SLP No.20150-20152 of 2015, and by order dated 15-02-2016,

Hon'ble Apex Court had disposed of the Special Leave Petition by

noting,

"We, therefore, close the matters and leave it open for the High Court to pass fresh orders after hearing all the contesting parties and after considering the claims of such parties including the parties to the present Special Leave Petitions."

7 CA 4577-2021

This order was not brought to the notice of the Bench who

decided Civil Application No.3642 of 2018 on 28-03-2018 and,

therefore, Civil Application No.12759 of 2018 was filed and it was

decided on 19-01-2021. Following order is passed after taking into

consideration all the submissions ;

"14. As such, this Civil Application filed by Shashikantbuva is partly allowed. The order passed by me dated 28-03-2018 to the extent of the disposal of the Civil Application, shall stand recalled and the Civil Application shall be taken-up for hearing as per the roaster/assignment as and when the application is listed for hearing. Consequentially, the directions set-out in my order at paragraph Nos.'A' to 'F' shall continue as an interim measure till Civil Application No.3642 of 2018 is decided by the appropriate Forum.

15. Civil Application No.3642 of 2018 is restored to the file and the present applicant Shashikantbuva stands added as one of the respondents. The applicant shall supply, Shashikantbuva, copies of the case papers. Shri Mantri along with Shri Sancheti cause their appearance on behalf of Shashikantbuva in the said application."

Thus, the situation stands as on today is that the Civil

Application No.3642 of 2018 came to be restored and applicant

8 CA 4577-2021

Shashikantbuwa stood added as one of the respondents to the said

application. Now as regards the present application is concerned, he

is respondent No.4. This is the background in which the present

application came to be filed.

4. Before considering the submission of the parties, it will not be

out of place to mention here that though some of the other parties

who are represented by Advocate Mr. Girish Rane, Advocate Mr.

Shaikh Mujtaba Gulab Mustafa, Advocate Mr. P. R. Katneshwarkar

and Advocate Mr. B. A. Agrawal were not party to Civil Application

No.12759 of 2018, but they have filed the review applications which

are mainly for the review of the orders passed by this Court on 16-

01-2014 and 26-06-2013. Out of them, on the day when this

application was heard, Advocate Mr. Girish Rane, Advocate Mr.

Shaikh Mujtaba, Advocate Mr. P.R. Katneshwarkar were present. It

is also to be noted that none of them tried to remain present, as

they have remained present in this application, in Civil Applications

No.1428 of 2017, No.3642 of 2018 and No.12759 of 2018.

Applicant Shashikantbuwa, applicant Vasudev, applicant Prasad,

applicant Prashant, applicant Chandrahsekhar and applicant Divakar

are stated to be from the branch of Meghasham who are the lineal

9 CA 4577-2021

descendant of Sant Eknath Maharaj. All of them have mainy raised

the contention that they have not been made party to the

application and since their review application is pending, it should be

taken up for hearing. As aforesaid, it appears that they had not

tried to get themselves included in the earlier referred applications

and, therefore, now till the arrangements as per the orders are

made, they will have to wait. Before proceeding further, the earlier

orders are quoted and especially when the Civil Application No.3642

of 2018 came to be restored by order in Civil Application No.1275 of

2018, this Court while setting aside earlier order in 3642 of 2018

specifically observed that the direction set out in the order dated 28-

03-2018 at paragraph No."A" to "F" shall continue as an interim

measure till the Civil Application No.3642 of 2018 is decided by

appropriate forum. This order on Civil Application No.12759 of 2018

passed on 19-01-2021 appears to have not been challenged before

the Hon'ble Apex Court by any of the parties. None of them have

filed any application for review also. This position was specifically

got ascertained from Senior Counsel Mr. R. S. Deshmukh

representing now respondent No.4 as well as the parties in Civil

Application No.4099 of 2016. In spite of this fact, that means, in

spite of specific order that the said arrangement would continue till

10 CA 4577-2021

the disposal of the Civil Application No.3642 of 2018, yet the present

respondents No.1-A to 1-D are stated to have given charge of Sal-

Pali (lky&ikGh) on 05-04-2021 in respect of outer temple to respondent

No.4 Shashikantbuwa, Vasudev and Prasad, and as regards internal

temple is concerned, it is given to applicant Prashant,

Chandrashekhar and Divakar. Charge Patti is stated to have been

executed and this information has been given by learned Advocate

Mr. S. S. Thombre representing respondents No.1-A to 1-D on the

instructions given by his clients to him. It will not be out of place to

mention that whenever questions regarding handing over of charge

were asked to the learned Advocate, he went offline (since

proceedings are conducted on Video Conferencing at present) and

then again by appearing he made the above statements. Before

turning to the other things which have been canvassed, this handing

over of charge that has taken place on 05-04-2021 is against the

directions set out in paragraphs No."A" to "F" in Civil Application

No.3642 of 2018 as they were directed to be observed as interim

measure by order dated 19-01-2021 (Shri Justice Ravindra V.

Ghuge's order). Whatever might be the grievance of those persons,

yet such kind of handing over could not have been without the

permission of the Court when even respondents No.1-A to 1-D had

11 CA 4577-2021

enjoyed the Sal-Pali (lky&ikGh) in the past by taking directions from

this Court by filing civil applications. They are very much aware that

since many years the Sal-Pali (lky&ikGh) is observed by rotation of one

year in the two branches of the lineal descendant of Sant Eknath

Maharaj. Reference as regards right of Sal-Pali (lky&ikGh) is

concerned, can be made in the earlier order passed in the first

appeal by this Court and also in terms of the right of Laxmibai

upheld in Second Appeal No.1628 of 1969. This Court in Civil

Application No.5729 of 2013 by order dated 16-01-2014 had

reiterated the earlier orders, and it is observed that, the rights of the

applicants to Sal-Pali (lky&ikGh) and the right to take Palkhi (iky[kh)

every year, is alternate to the two branches. The two branches are

of Raghoba and Meghasham of Sant Eknath Maharaj. They both are

having 08 Aana (50%) share divided interse between them since

beginning with respect to Sal-Pali (lky&ikGh) i.e. charge and

management of both the temples of Sant Eknath Maharaj situated at

Paithan on year to year basis, starting from 'Falgun Vaidya Navami'

with respect to the right of taking Palkhi (iky[kh) of Sant Eknath

Maharaj to Pandharpur on account of Ashadhi Ekdashi Palkhi

(vk"kk<h ,dkn'kh iky[kh).

12 CA 4577-2021

5. After the said order was passed on 19-01-2021 by this Court

restoring Civil Application No.3642 of 2018 which was in fact filed by

the present respondents No.1-A to 1-D and they had enjoyed the

fruits of that order, they have handed over charge to the aforesaid

persons in respect of the outer temple and inner temple on 05-04-

2021 as aforesaid without the orders of this Court, and now on their

instructions, the learned Advocate Mr. S. S. Thombre made

submission that his clients want to withdraw the said application. It

is to be noted that, they have enjoyed right and when another

person came forward and objected to the order and thereupon the

said application came to be restored, the interim arrangement was

continue till the disposal of that application, such statement is being

made. Under such circumstance, those applicants cannot be allowed

to withdraw the said application. This move appears to be smartly

taken since the present application has been filed in that civil

application. Learned Advocate Mr. S. S. Thombre representing

respondents No.1-A to 1-D and learned Senior Counsel Mr. R. S.

Deshmukh have objection for considering the said Civil Application

No.4577 of 2021 in Civil Application No.3642 of 2018. It was tried

to be submitted that if the applicant wants to contend something

13 CA 4577-2021

independently then he should file an independent application. This

Court is of the view that the numbering of an application is an

administrative act or the convenience of the parties to refer the

earlier proceedings also. We are more concerned with the contents

of the application and not the numbering or in which application it is

filed, ultimately this application is filed in the first appeal. Another

fact which learned Advocate Mr. P. R. Katneshwarkar representing

one of the parties whose review application is pending submitted

that the the subject matter of the suit that was filed and disposed of

and the first appeal is not Sal-Pali (lky&ikGh) but it is framing of a

scheme and, therefore, all these applications in which the Sal-Pali

(lky&ikGh) is decided and the energy of this Court is being wasted,

need not be considered at all. This point has to be considered on

the basis of history of the litigation. Regular Civil Suit No.2 of 1974

was filed by Charity Commissioner, Maharashtra State, in District

Court, Aruangabad for settlement of scheme to administer the Trust

called Sansthan Eknath Maharaj situated at Paithan along with the

consequential prayers for removal of defendant No.1 Rangnathbuwa

from Trusteeship and then for appointment of new Trustees. The

suit was objected by the defendants therein. The learned Extra Joint

14 CA 4577-2021

District Judge, Aurangabad after recording the evidence of the

parties, decreed the suit on 18-03-1996 and removed

Rangnathbuwa from the hereditary Trustee, separate scheme was

framed for administration of the Trust. Interesting point to be noted

is that the said decree is under challenged before this Court in this

First Appeal No.28 of 1996. The objection that is taken by these

defendants is that they have been reduced to relegated to as paid

servants due to the said scheme, and it is their contention that, their

rights as Salkari has been abolished. Therefore, definitely Sal-Pali

(lky&ikGh) is also the right that is canvassed by the original defendants

in the suit and that right has been prima facie recognized by the

earlier orders of this Court. The other respondents to this

application also who had approached this Court and enjoyed that

Sal-Pali (lky&ikGh) earlier have not come with a case that Sal-Pali

(lky&ikGh) is not the subject matter of the suit. The basis of the

review or the right canvassed in which review application is also the

same and, therefore, this Court is not convinced with the submission

that has been made.

6. Now coming back to the fact that the handing over of charge

has been effected by the present respondents No.1-A to 1-D in

15 CA 4577-2021

favour of Shashikant, Vasudev and Prasad in respect of outer temple

and Prashant, Chandrashekhar and Divakar in respect of inner

temple, cannot be allowed to sustain though except

Shashikantbuwa, others are not party to this application. It will not

be out of place to mention here that, learned Advocate Mr. Shaikh

Mujataba was submitting that he may be given a right of audience

and he would make submissions in detail on some other day,

however it is to be noted that even on the day when the Civil

Application No.4577 of 2021 was heard, no notice was given to his

clients and if he wanted to raise objections, he ought to have come

prepared and made submissions in detail as the other parties

represented by those Advocates in respect of whom the review

applications are pending. Therefore, no extra consideration could

have been given to learned Advocate Mr. Shaikh Mujtaba to make

separate submissions on any other date. Further, it will not be out

of place to mention here that in the earlier three orders those are

referred, there is specific mention that by Judgment dated 01-02-

1972, this Court (Coram : Justice Bhole) had crystallized the yearly

terns of the parties then had dispute for Sal-Pali (lky&ikGh) and,

therefore, the earlier Benches have specifically noted that the said

order dated 01-02-1972 has not been set aside since last 49 years.

16 CA 4577-2021

As per the directions of this Court, the smooth exchange of the

charge for Sal-Pali (lky&ikGh) each year between the two branches was

expected, yet each time it appears that the branches are coming to

this Court. Though respondent No.1-A to 1-D had got the charge

because of the orders passed by this Court, they have handed over

the charge to the others on 05-04-2021, which will have to be stated

that, it is beyond the directions given by this Court and, therefore

that will have to be restored. This situation is arising because of the

action taken by the present respondents No.1-A to 1-D. When the

applications are pending and in particular when a direction is given

by way of interim arrangement, then it ought to have been followed

by those respondents, in the same fashion.

7. One of the contention that has been raised on behalf of the

respondents is that the present applicant had filed Regular Civil Suit

No.53 of 1997 for declaration and mandatory injunction in respect of

Sal-Pali(lky&ikGh) for every alternate year in both temples, but he had

withdrawn that suit in 2002 with liberty to file fresh suit. However,

he did not institute any such suit till today and, therefore, the

respondents are saying that he cannot get that right by filing such

an application. At the outset, it can be said that this contention was

17 CA 4577-2021

raised on behalf of the respondent even in Civil Application No.1428

of 2017 and this Court after taking other aspects into consideration

had allowed the said application. No doubt, the review application is

filed to review the said order in Civil Application No.1482 of 2017,

however it appears to be on the ground that those applicants were

not heard by this Court. Therefore, that point still can be kept open,

yet when such arrangements are being made since long then the

arrangement will have to be continued till the Civil Application

No.3642 of 2018 is finally decided. At the cost of repetition, it can

be said that this Court is not allowing the respondents No.1-A to 1-D

to withdraw that application as such withdrawal is after they had

enjoyed the fruits of that order, and after the order dated 19-01-

2021 was passed, those respondents have directly handed over the

charge to the other persons. No doubt, another fact is required to

be mentioned is that the present applicant has also filed application

for action for Contempt of the Court against the respondents No.1-A

to 1-D and that is pending. It can be said that, that application

would deal with the alleged non-observance of the order passed by

this Court, but when it comes to taking the charge of the Sal-

Pali(lky&ikGh) is concerned, it has to be considered in this application.

18 CA 4577-2021

8. Therefore, for the above said reasons, this Court observes that

by this order the Court is not disposing the Civil Application No.3642

of 2018 finally. When it came to be restored in view of Civil

Application No.12759 of 2018, but in view of the order passed on

19-01-2021, when the interim arrangement was made at

paragraphs No."A" to "F" in the order passed in Civil Application

No.3642 of 2018 were directed to continue till it is decided,

directions are now given in terms of prayer Clause "a" in Civil

Application No.4577 of 2021.

9. Respondents No.1-1A to 1-1D in common and respondent

No.1-1C in particular, to take charge of the temples from respondent

No.4 Shashikantbuwa, Vasudev and Prasad in respect of outer

temple and Prashant, Chandrashekhar and Divakar in respect of

inner temple, which they had given by Charge-patti on 05-04-2021

to themselves on 26-06-2021 and, thereafter, hand over the entire

charge i.e. in respect of both the temples of Sant Eknath Maharaj

situated at Paithan to the applicant on 28-06-2021. The handing

over of the charge should be peaceful and uneventful. The charge to

remain with the applicant a day prior to "Falgun Vaidya Navami" of

the next year i.e. 2022.

19 CA 4577-2021

10. Hearing of all the applications including Civil Application

No.3642 of 2018, Review Applications and all applications pending in

the First Appeal No.28 of 1996 is expedited, and when the physical

hearing of the Court would start, the matter would be taken up.

(SMT. VIBHA KANKANWADI) JUDGE LATER ON :

Learned Senior Counsel Mr. R. S. Deshmukh appearing for

respondent No.4 - Shashikantbuwa and Vasudeo, and learned

Advocate Mr. Girish Rane appearing for one of the review applicants,

after pronouncement of the order, pray for stay of this order.

However, taking into consideration the fact that the interim

arrangement were already made and it has been already delayed

and further without there being any order from this Court,

respondents No.1-A to 1-D had handed over the charge without this

being informed to this Court, this Court is not inclined to stay this

order. Hence, request for stay is rejected.

(SMT. VIBHA KANKANWADI) JUDGE

vjg/-