Purshottam Bhojak vs Shankarlal
2021 Latest Caselaw 11810 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 252/2019

1. Purshottam Bhojak S/o Late Sh. Umashankar, Aged About 44 Years, R/o Ward No. 7, Fatehpuriya Mohalla, Back Side Of Women College, Rajgarh, District Churu.

2. LRs Of Vinod Kumar, S/o Sh. Jamnadas, Khejadi Wale Vyaso Ki Gali, Kesardesar Mohalla, Bikaner District Bikaner, Deceased Through Lrs

3. Sanju Devi W/o Vinod Kumar, Aged About 48 Years, Khejadi Wale Vyaso Ki Gali, Kesardesar Mohalla, Bikaner District Bikaner

----Appellants Versus

1. Shankarlal S/o Sh. Mohanlal, R/o Out Side Of Usta Bari, Bikaner, Present R/o Near Laxminath Temple, Ward No. 15, Rajgarh Churu, District Churu.

2. Dayashankar S/o Sh. Mohanlal, R/o Out Side Of Usta Bari, Bikaner, Present R/o Near Laxminath Temple, Ward No. 15, Rajgarh Churu, District Churu.

3. Rajkumar S/o Sh. Hariram, Grandson Of Sh. Mohanlal R/o Out Side Of Usta Bari, Bikaner, Present R/o Near Laxminath Temple, Ward No. 15, Rajgarh Churu, District Churu.

                                                                 ----Respondents


For Appellant(s)          :     Mr. Amit Saraswat.
For Respondent(s)         :



           HON'BLE MR. JUSTICE ARUN BHANSALI

                                 Judgment

29/07/2021

This second appeal is directed against the judgment dated

11/9/2019 passed by Addl. District Judge No. 3, Bikaner, whereby,

the appeal filed by the respondents-plaintiffs has been allowed

and judgment & decree dated 29/11/2014 passed by the Sr. Civil

(2 of 6) [CSA-252/2019]

Judge, No. 4, Bikaner has been set aside and the matter has been

remanded back.

At the outset, it may be noticed that second appeal against

the order passed by the first appellate court setting aside the

dismissal of the suit on preliminary point and remanding back the

matter is not maintainable. In fact, an appeal under Order XLIII

Rule 1 (u) CPC would be maintainable.

However, as the period of limitation and court fees etc., are

the same in second appeal and misc. appeal, instead of requiring

the appellants to file misc. appeal/convert the present second

appeal into misc. appeal, in view of the fact that this Court has the

roster to hear both second appeal and misc. appeal, counsel for

the appellants was heard on merits.

The suit was filed by the respondents - plaintiffs for

declaration, permanent injunction and for recovery of sum of

Rs.2,65,924/-. The declaration was sought in relation to plaintiffs'

right of turn in worship and their share in the temples offerings. It

was inter alia indicated that the plaintiffs' father and grand father,

Mohan Lal Ji had 5 days 10 Ana ( vkuk) share in the over all 90

days share of 'Jhuthani Thumb' (a branch of the over all family)

and after his death, the plaintiffs were entitled for the same.

Indications were made that in the year 2007, in the court of

Assistant Commissioner, Devasthan, an application was filed by

defendant Purushottam claiming right in himself and opposing

Mohan Lal Ji. Reply was filed and objections were taken.

Thereafter, on 21/9/2009 the Assistant Commissioner, Devasthan

held that the jurisdiction to decide the turn of 'Puja' was that of

civil courts and both the sides agreed to approach the civil courts

and as such the proceedings were disposed of.

(3 of 6) [CSA-252/2019]

It was claimed that as the plaintiffs are descendants of

Mohan Lal Ji, the suit was being filed. Whereafter, it was indicated

that distribution of offerings is being made by defendant no.2,

however, he has not paid the dues to the plaintiffs and as such the

plaintiffs were entitled for the decree for money, declaration and

injunction. It was also claimed that the cause of action arose to

the plaintiffs on 10/8/2014 when payment was declined. Based on

the above averments, the suit was filed.

An application under Order VII Rule 11 CPC was filed by the

defendants inter alia claiming that as the defendant no.2 was not

at Bikaner on the date indicated i.e. 10/8/2014, as he had already

gone for treatment on 1/8/2014, the suit was liable to be

dismissed based on falsehood and that the suit was barred by

limitation as the order was passed by the Assistant Commissioner,

Devasthan on 21/9/2009 and the suit has been filed in the year

2014.

The application was contested by the plaintiffs -

respondents.

The trial court after hearing the parties came to the

conclusion that the aspect as to whether the defendant no.2 was

at Biakner on 10/8/2014 or not was a factual aspect and cannot

be decided on an application under Order VII Rule 11 CPC.

However, it came to the conclusion that as the cause to the

plaintiffs arose in the year 2007 and the suit has been filed

beyond three years, the same was barred by limitation and

consequently while allowing the application under Order VII Rule

11 CPC, rejected the plaint.

Feeling aggrieved, the respondents filed first appeal. The first

appellate court by its impugned judgment came to the conclusion

(4 of 6) [CSA-252/2019]

that when the proceedings were initiated before the Assistant

Commissioner, Devasthan, the same pertained to the rights of

Uma Shanker, Purushottam and Pyare Lal and at that time no

cause of action had arisen in favour of the present plaintiffs as

their father/grand father was defendant in the said proceedings

and in those circumstances, passing of the order by Assistant

Commissioner on 11/9/2009 did not provide any cause of action to

the plaintiffs and as even otherwise the issue of limitation is a

mixed question of law and facts, therefore, the rejection of plaint

or filing of a suit as barred by limitation was not justified and

consequently the order of the trial court was set aside and the

matter was remanded back.

Learned counsel for the appellants made vehement

submissions that the appellate court was not justified in reversing

the order passed by the trial court. It was submitted that on

11/9/2009 the Assistant Commissioner, Devasthan left it open to

the parties to get the issue of turn of 'Puja' determined by civil

court and as admittedly the suit has been filed in the year 2014,

the same was ex facie barred by limitation and, therefore, the

order passed by the appellate court deserves to be quashed and

set aside.

I have considered the submissions made by learned counsel

for the appellants and have perused the material available on

record.

It is not in dispute that the proceedings before the Assistant

Commissioner, Devasthan were initiated by/for the benefit of

Purushottam, Uma Shanker and Pyare Lal against Mohan Lal,

father/grand father of the plaintiffs, in relation to 5 days and 10

Ana share in the turn pertaining to 'Puja'/offerings. The

(5 of 6) [CSA-252/2019]

proceedings came to be terminated by the order dated 11/9/2009,

wherein, the Assistant Commissioner came to the conclusion that

the jurisdiction to determine the turn of 'Puja' lies with the civil

court and, therefore, the parties were left free to seek their

remedy before the civil court. As the proceedings before the

Assistant Commissioner, Devasthan were initiated by

Purushottam, Uma Shanker and Pyare Lal, apparently, at the

relevant time they had grievance against Mohan Lal and Mohan Lal

etc. had no grievance, therefore, there was no cause of action.

Now the present proceedings have been initiated by

sons/grand son of late Mohan Lal seeking relief against the

defendants, among whom Purushottam was a party before the

Assistant Commissioner, Devasthan. The cause of action has been

specifically indicated and as such, as to whether the cause of

action arose on the date indicated in the plaint or not, would have

to be determined based on the evidence which would come on

record once the written statement is filed and parties lead

evidence.

However, the plea raised seeking to claim the suit as barred

by limitation based on the order dated 11/9/2009 passed by the

Assistant Commissioner, Devasthan by taking the said date as the

date on which cause of action arose to the plaintiffs cannot be

accepted and in those circumstances the first appellate court was

justified in reversing the order passed by the trial court and

remanding back the matter to the trial court requiring it to seek

written statement and decide the suit thereafter.

Consequently, there is no substance in the appeal, the same

is, therefore, dismissed.

(6 of 6) [CSA-252/2019]

However, it is made clear that any observations made either

by the first appellate court or by this Court would not be construed

as an expression of opinion on merits of the dispute/issues raised

and once the written statement is filed and issues are framed, the

trial court would be free to determine the issues based on the

material available before it.

(ARUN BHANSALI),J

23-baweja/-

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