Madhya Pradesh High Court
Murti Bhagwan Shri Maruti Hanumanji vs Ganpat Rao Kasture & Ors. on 25 February, 2025
Author: Gurpal Singh Ahluwalia
Bench: G. S. Ahluwalia
NEUTRAL CITATION NO. 2025:MPHC-GWL:3874
1 FA. No. 237 of 2003
IN THE HIGH COURT OF MADHYA PRADESH
AT G WA L I O R
BEFORE
HON'BLE SHRI JUSTICE G. S. AHLUWALIA
FIRST APPEAL No. 237 of 2003
MURTI BHAGWAN SHRI MARUTI HANUMANJI
Versus
GANPAT RAO KASTURE & ORS.
Appearance:
Mr. Prakash Chandra Chandil, Mr. Dinesh Baghel, and Mr. Jitendra Singh
Kaurav - Advocates for the appellant.
Mr. Anand.V. Bhardwaj and Mr. Yogesh Singhal - Advocates for the respondents.
________________________________________________________________
Reserved on : 19.2.2025
Pronounced on: 25.2.2025
________________________________________________________________
JUDGMENT
This first appeal under Section 96 of CPC has been filed against the
judgment and decree dated 28.6.2003 passed by Additional Judge to the Court of
District Judge, Gwalior in Civil Suit No.11-A/2000 by which suit filed by the
appellant for declaration of title and permanent injunction has been rejected.
2. The facts necessary for disposal of the present appeal in short are that a
temple namely Shri Maruti Hanuman Ji Mandir is situated in Kadam Sahab ki
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Goth, Janakganj, Lashkar, Gwalior. Adjoining to this temple, House No.6/474 is
situated and according to the plaintiff, house belongs to the deity. The house is the
disputed property. It was the claim of the plaintiff that the temple and the house
belongs to State Government being a mafi auqaf property and Manager of the said
temple is Collector. Semu Bai was the previous priest and after her death, Vinayak
Shankar Telang became the priest of Shri Maruti Hanumanji Temple who
tendered his resignation in the year 1965. Thereafter, Ramkrishna Narayan
Kasture was offering prayer and was managing the temple and was also residing
in the disputed house which is adjoining to the temple. The S.D.O., Gwalior
directed the Tehsildar to conduct an enquiry as to who is maintaining and offering
puja in the temple. Accordingly, Tehsildar by order dated 15.1.1991 directed the
R.I., Circle 2, Lashkar, Gwalior to carry out spot inspection and to collect
information with regard to the maintenance as well as prayers. Accordingly, R.I.,
Circle 2, Lashkar, Gwalior submitted his report to the Tehsildar on 18.3.1991.
Thereafter, Tehsildar sent his report along with the report of R.I., Circle 2 pointing
out that for the last 25-26 years Ramkrishna Narayan Kasture is residing in the
house and he is maintaining the temple. It was also mentioned in the report that
the disputed house belongs to the deity. Accordingly, S.D.O., Gwalior by order
dated 24.9.1991 passed in Case No.19/414/91 appointed Ramkrishna Narayan
Kasture as the regular priest. It is also the case of the appellant / plaintiff that the
name of the deity is mentioned in the record and in Column No. 9 of the said
record, description of the house is mentioned. Thus, it is clear that the house
which is adjoining to the temple is the property of the deity and owner of the said
property is State of Madhya Pradesh as the property is mafi auqaf property. It was
claimed that defendants No. 1 to 5 had no right and title in the disputed house and
they are trying to grab the property by hook and crook. They are trying to
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dispossess the priest from the disputed property. Accordingly, priest had sent
complaint to the concerning officers from time to time. It was further pleaded that
defendants No. 1 to 5 with the help of other 10 to 15 persons had demolished the
Pator constructed over one room of the house. It was further alleged that even the
toilet and the tap were destroyed. It was further pleaded that defendants No. 1 to 5
even knowing that the property in dispute is the property of mafi auqaf
department, which is being maintained by the Collector, executed two sale deeds.
One was executed in favour of defendant No. 7 for a consideration amount of
Rs.1,40,000/- and another sale deed was executed on the very same day in favour
of defendant No. 6 for a consideration amount of Rs.1,40,000/- Thus, it was clear
that defendants No. 1 to 5 had no right and title over the property and thus, both
the sale deeds dated 25.3.1994 executed in favour of defendants No. 6 and 7 are
null and void to the extent of right of the deity. It was further pleaded that the
disputed house is still in possession of the deity and it has not been dispossessed.
The fact mentioned in the sale deeds that possession has been given is false. Since
defendants No. 1 to 5 have executed two sale deeds, therefore, title of the deity
over the property in question has come under cloud. Therefore, suit was filed for
declaration that the disputed house is the property of deity Shri Maruti Hanumanji
which is a mafi auqaf property and Manager is the Collector, the two sale deeds
dated 25th of March, 1994 executed in favour of defendants No. 6 and 7 are null
and void and are not binding on the deity and it was also prayed that the
defendants may be permanently restrained from interfering with the peaceful
possession of the deity or in alternative if it is found that deity has been
dispossessed then decree of possession be also passed.
3. Defendants No. 1, 2, 3, 4, 6 and 7 filed their written statement. The location
of the suit property was admitted. It was denied that the suit property belongs to
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auqaf department. It was denied that earlier Semu Bai was the priest and
thereafter, Vinayak Shankar Telang became the priest. It was also denied that he
was succeeded by Ramkrishna Narayan Kasture. However, the fact that plaintiff
/ priest is in possession of the disputed house which is adjoining to the temple
was admitted. However, it was claimed that since Ramkrishna Narayan Kasture
was the uncle of defendant No. 1, therefore, he is residing in that capacity. It is
further pleaded that after the house in question has been alienated in favour of
defendants No. 6 and 7, Ramkrishna Narayan Kasture has lost his right to reside
in the said house. Ttitle of the deity was also denied. The existence of temple and
the fact that the dispute property is adjoining to the temple was accepted. It was
claimed that after the sale deeds have been executed, now defendants No. 6 an d7
are the owners. It was denied that the Collector is the Manager of the property in
dispute. It was further pleaded that possession of Ramkrishna Narayan
Kasture is permissive possession. It is submitted that defendant No. 1 got the
property by virtue of judgment and decree dated 07.10.1959 passed by the High
Court in Civil First Appeal No. 2/1956. Name of defendant No. 1 is also recorded
in the revenue records. Number of the disputed house is 155/43 whereas number
of the temple is 154/43. Both the properties are different. After the sale deeds
were executed, house tax is being paid by defendants No. 6 and 7. A counter-
claim was also filed claiming that defendants No. 1 to 5 got the property by virtue
of judgment and decree dated 07.10.1959 passed by the High Court in Civil First
Appeal No. 2/1956 and, therefore, deity has no right or title over the property in
dispute. Accordingly, it was prayed that possession of Ramkrishna Narayan
Kasture is that of an encroacher and, accordingly, it was prayed that the vacant
possession of the property in question be handed over to defendants No. 6 and 7
and mesne profit at the rate of Rs.150/- may be awarded to defendants No. 6 an 7
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from the date of institution of suit.
4. The trial Court, after framing issues, recorded the evidence of the parties.
By impugned judgment and decree dated 28.6.2003, the trial Court dismissed the
suit. The counter-claim was also dismissed. The possession of the plaintiff was
found to be permissive and in paragraph 18 of the impugned judgment, it was also
found that by virtue of decree dated 07.10.1959 passed by the High Court in Civil
First Appeal No.2/1956, defendants No. 1 to 5 are the owner of the property in
dispute.
5. Challenging the judgment and decree passed by the court below, it is
submitted by counsel for appellant that the trial Court has wrongly disbelieved the
register entry Exh. P-4 in which house in question was shown to be a property of
the temple / deity. It is further submitted that in order to treat defendants No. 1 to
5 as owners, trial Court has relied upon the judgment and decree dated 07.10.1959
passed by the High Court in Civil First Appeal No. 2/1956. It is submitted that the
said judgment is not binding on the deity because that was the suit between
Damodar Bhatt and Ganpati. Appellant was not the party to the said suit. It is
further submitted that the judgment passed in the suit cannot be treated as
judgment in rem but it was the judgment in persona and, therefore, trial Court
should not have held that defendants No. 1 to 5 are the owners of the property in
question.
6. Per contra, counsel for the defendants supported the findings recorded by
the Court below. However, undisputedly, defendants / respondents have not filed
any cross-objection against the rejection of their counter-claim for a decree for
possession.
7. Heard learned counsel for parties.
8. Undisputedly, appellant has relied upon one register entry Exh. P-4 in
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which in column No. 9, House 1 is mentioned. Counsel for appellant could not
point out as to how this document can be treated as a document of title. Even the
nature of this document could not be explained by the counsel for appellant. From
the heading of this document, it appears to be an entry made in the register. What
presumption can be drawn from the aforesaid entry could not be explained by the
appellant. Under these circumstances, this Court is of the considered opinion that
mere entry in the register Exh. P-7 does not confirm any title to the appellant.
Therefore, the trial Court did not commit any mistake by holding that the
appellant had failed to prove its title over the property in dispute.
9. So far as rejection of the counter-claim with the finding that respondents
No. 1 to 5 are the owners of the disputed property in question is concerned, trial
Court has relied upon the judgment and decree dated 07.10.1959 passed by the
High Court in Civil First Appeal No. 2/1956. Said suit was filed by Ganpat
against Damodar Bhatt. Deity was not the party to the suit. Furthermore, question
of adoption was involved. The judgment passed by the court in a suit contested by
two private litigants cannot be said to be a judgment in rem but it has to be treated
as judgment in persona. Since the appellant / deity was not a party to the suit,
therefore, by no stretch of imagination, it can be said that the decree passed by the
High Court in Civil First Appeal No.2/1956 is binding on the appellant. No other
document was filed by defendants No. 1 to 5 to prove their title. Under these
circumstances, findings given by the trial Court in paragraph 18 of the impugned
judgment to the effect that defendants No. 1 to 5 are the owners of the property in
dispute is erroneous and hence, it is hereby set aside.
10. Since, no cross-objection has been filed against dismissal of the counter-
claim, therefore, this Court is not required to consider the correctness of the
findings with regard to the counter-claim.
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11. Accordingly, finding recorded by the trial Court with regard to the
ownership of defendants No. 1 to 5 is hereby set aside.
12. So far as claim of the appellant that appellant be declared as owner of the
property in dispute is concerned, same is dismissed.
13. Since, possession of the appellant was admitted by defendants No. 1 to 5
and since no cross-objection has been filed against the dismissal of the counter-
claim, therefore, no further observation is required with regard to possession of
the appellant.
14. With aforesaid modification, judgment and decree dated 28.6.2003 passed
by Additional Judge to the Court of District Judge, Gwalior in Civil Suit No.11-
A/2000 is hereby affirmed.
15. The appeal is disposed of.
(G.S. Ahluwalia)
Judge
AKS
