Mohan Prasad vs Braj Bihari
2023 Latest Caselaw 1800 MP

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                                                         First Appeal No.510 of 2018

              IN THE HIGH COURT OF MADHYA PRADESH

                                 AT GWALIOR

                              FA No. 510 of 2018
                      (MOHAN PRASAD Vs BRAJ BIHARI AND OTHERS)

Gwalior Date 01.02.2023

         Mr. K.S. Tomar - learned senior counsel with Shri Atul Sharma -

Advocate for appellant.

         Mr. Anand Vinod Bhardwaj - learned counsel for the respondent No. 5

and 7.

Mr. Pawan Singh Raghuvanshi - learned Government Advocate for

respondents No.17 to 19.

Heard on I.A. No. 4668 of 2019, an application for directing the

respondents No. 23 to 25 (Instrumentalities of State) i.e. Collector, Ashoknagar,

S.D.O, Isagarh, Ashoknagar and Tahsildar, Isagarh to return back the movable

property.

This application has been filed by respondents No. 1 to 5(b) and 6 to 16

praying that the appeallant has filed the present appeal against the judgment and

decree dated 12.02.2018 by which the suit filed by the respondents has been

decreed and defendants No. 1 to 5 have been injuncted from interfering into the

possession of the respondents/plaintiffs. The learned Court below while passing

the judgment in para 43 came to conclusion that the temple is a private temple

First Appeal No.510 of 2018

of the ownershipt of the plaintiffs and the order dated 08.01.2016 passed by the

SDO, Isagarh is illegal and the name of the Collector as Manager has been

mentioned withut any order, which is also illegal. It is further submitted that

plaintiffs/respondents have also preferred cross objections under Order 41 Rule

22 of the Code of Civil Procedure, 1908 to the extent of non-grant of relief due

to Section 34 of the Specific Relief Act. In respect to the order dated

08.01.2016 passed by SDO, Isagarh, a management committee was formulated

and Tahsildar Isagarh was appointed as President and ordered for looking after

the managment and conduct of affirs of all movable and immovable property of

the temple by the Tahsildar, however, the said order has been declared illegal by

the learned trial Court.

It is further submitted that in compliance to the said order, Tahsildar,

Isagarh collected cash offering, gold and silver ornaments, which comes to Rs.

11,02.415/- which is illegally retained by the Tahsildar, Isagarh. Moreover, the

crops were also cut and sold for a sum of Rs.46,369/-. It is further submitted

that in District Treasury Office has given in custody various ornaments and

movable articles. The plaintiffs many a times requested the Tahsildar for return

of the said items as retained by him illegally and ultimately a registered notice

dated 19.07.2019 was also issued but no heed is paid to it. Under the

compelling circumstances, the present application has been filed for return of

the gold and silver ornament and cash as detailed above from respondent No.25.

First Appeal No.510 of 2018

It is therefore, prayed that application may be allowed and return back gold and

silver ornaments and cash offering illegally retained by respondent No. 25 to

the plaintiffs in the interest of justice.

On the orther hand, Counsel for the respondents No. 17 to 19 filed reply

and opposed the application stating therein that the present appeal has been

filed by the appellant challenging the judgment and decree passed by the

learned trial Court and challenging the same, the State has also filed another

appeal bearing F.A. No. 1514 of 2019 (State of M.P. Vs. Brij Bihari). This

Court has issued notice in the aforesaid first appeal, but due to default, the same

was dismissed for non-compliance of the order passed by this Court, therefore,

the State has filed a MCC No. 297 of 2020 and the same is still pending before

this Court, so the State has also challenged the judgment and decree passed the

learned trial Court. Since the appeal is still pending before this Court, therefore,

the respondent during the pendency of the present appeal has no right to return

back the moveable property of the temple and the right of the parties is required

to be determined in the present appeal, therefore, the application filed by the

respondent/plaintiffs deserves to be dismissed.

Learned counsel for the appeallnt has also vehemently opposed the

present application filed by the respondents No.1 to 5(b) and 6 to 16.

Heard learned counsel for the parties and perused the record.

Present application has been filed in light of impugned judgment and

First Appeal No.510 of 2018

decree dated 12.02.2018 passed in Civil Suit No. 01-A/2016 by 2 nd Additional

District Judge, Ashoknagar, whereby, plaintiffs' suit filed for declaration as

respondents have not having jurisdiction for quashing the order dated

08.01.2016 passed by SDO, Isagarh and entery made over the disputed property

of Collector as a Manager be declared null and void. However, the said

judgment has not attained finality as it is subjudice bfore this Court in this

appeal. It is also not disputed that the State has also filed another first appeal

bearing FA No. 1514 of 2019 as State of M.P. Vs. Brij Bihari which was

dismissed for non-compliance of the order passed by this Court, howver, a

MCC No. 297 of 2020 for restoration of the case is still pending before this

Court, therefore, this Court does not deem it fit to direct the respondent No. 25

to return back gold and silver ornaments and cash offering till rights of the

parties are decided finally. Consequently, present application (I.A. No. 4668 of

2019) is hereby rejected.

List the case for further orders after two weeks.

(SUNITA YADAV) JUDGE LJ*

Digitally signed by LOKENDRA JAIN

LOKEND DN: c=IN, o=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, ou=HIGH COURT OF MADHYA PRADESH BENCH GWALIOR, postalCode=474001, st=Madhya Pradesh, 2.5.4.20=db3c9d6949274275ca4fa5169a71322cb41 a1948e706e7b7a3aca4d7f52c2061,

RA JAIN pseudonym=0AF756B10E80A2E3539E359C15A573F E863BC2AC, serialNumber=24479AE2DB5E3367FDEBFC8BF895B D6827793AD644378E5627657500AF621D1A, cn=LOKENDRA JAIN Date: 2023.02.03 09:50:57 +05'30'