Rajasthan High Court

Mandir Shri Hanuman Ji Maharaj vs Ram Kalyan S/O Prabhu Lal on 4 November, 2022

Bench: Sudesh Bansal

       HIGH COURT OF JUDICATURE FOR RAJASTHAN
                   BENCH AT JAIPUR

            S.B. Civil Second Appeal No. 615/2019

Mandir Shri Hanuman Ji Maharaj, Khatedar Pujari Guardian
Narsinghdas Son Of Kishandas Bairagi Resident Of Sarola Kala,
Teshil Khanpur District Jhalawar (Raj)
                                                          ----Appellant/Plaintiff
                                   Versus
1.      Ram Kalyan S/o Prabhu Lal, (Deceased),
2.      Kishan S/o Bala,
3.      Moti S/o Kanwarlal,
4.      Ramswaroop S/o Badri Lal,
5.      Bajrang Lal S/o Latoor Lal,
6.      Prabhulal S/o Motilal,
7.      Khema S/o Nandlal,
8.      Mukut S/o Bheru Lal,
9.      Gordhan S/o Narayan,
10.     Mohan Lal S/o Govinda,
11.     Shankar Lal S/o Ghasilal,
12.     Manoj S/o Bhanwar Lal,
        All Residents Of Sarola Kala, Tehsil Khanpur, District
        Jhalawar (Raj)
                                               ----Respondents/Defendants

For Appellant(s)         :     Mr. Girish Khandelwal
For Respondent(s)        :



           HON'BLE MR. JUSTICE SUDESH BANSAL

                                Judgment

04/11/2022

1. Appellant-plaintiff has preferred this second appeal under

Section 100 of the Code of Civil Procedure (CPC), assailing the

judgment and decree dated 04.09.2019 passed in Civil First

Appeal No.18/2017 by the Court of Additional District Judge,

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Jhalawar (Raj.), dismissing the appeal and affirming the judgment

and decree dated 12.04.2017 passed in Civil Suit No. 30/2008 by

the Court of Civil Judge, Khanpur, District Jhalawar (Raj.),

whereby and whereunder civil suit for permanent injunction,

claiming absolute right of seva-puja in the temple of plaintiff, has

been dismissed on merits.

2. Heard counsel for appellant and perused the impugned

judgments.

3. It appears that the instant suit for permanent injunction was

filed by one Sh. Narsinghdas Son Of Sh. Kishandas, alleging

himself to be a Pujari of Mandir Shri Hanuman Ji Maharaj, situated

at Village Sarola Kala, Tehsil Khanpur, District Jhalawar. It is not

disputed in the plaint that earlier this temple was recorded in the

name of Pujari but later on entries in the revenue record were

corrected and the name of Mandir Shri Hanuman Ji Maharaj came

to be recorded as Khatedar in Jamabandi (Exhibit 2). Plaintiff

claimed that he was rendering seva-puja in temple since time of

his predecessors but after formation of the trust by the

Development Society of that area, he was removed from Pujari.

Plaintiff admitted that the seva-puja in temple is being managed

and conducted by the trust through the Vikas Samiti.

4. Both courts below have dismissed plaintiff's suit, with a fact

finding that the plaintiff has neither challenged the

formation/registration of the trust to manage affairs of the temple

nor has disputed that he has been removed as Pujari and the

seva-puja in the temple is being performed by some other person,

appointed by Society in trust. In such circumstances, the right of

seva-puja of the plaintiff was not found to be absolute and the

prayer for permanent injunction in that respect has been declined.

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5.     This   Court   does     not    find     any     perversity,   illegality   or

jurisdictional error in the fact findings, as it is not in dispute that

over the Mandir Shri Hanuman Ji Maharaj, registered trust has

been created and seva-puja is being performed through registered

trust. If the predecessors of plaintiff, at one point of time did any

seva-puja in the temple, when the trust was not in existence, the

same does not give any absolute right to plaintiff, more so when

the plaintiff has neither challenged the formation of trust nor has

adopted any proper recourse of law. The plaintiff could not show

any substantive right vested in him, so as to entail for seeking

permanent injunction to continue the seva-puja once, before the

suit, he has already been removed from performing seva-puja.

6. Counsel for appellant could not point out any perversity on

the part of courts below in recording findings which are based on

appreciation/re-appreciation of evidence. In absence of only

perversity, or when findings are neither based on surmises and

conjunctures nor the same do not give rise to any substantial

questions of law. The substantial question of law are sine-qua-non

to exercise the jurisdiction of the High Court under Section 100 of

CPC.

7. In case of Santosh Hazari Vs. Purushottam Tiwari

[(2001) 3 SCC 179] the Supreme Court Court held as under:-

"A point of law which admits of no two opinions may be a proposition of law but cannot be a substantial question of law. To be "substantial", a question of law must be debatable, not previously settled by law of the land or a binding precedent, and must have a material bearing on the decision of the case, if answered either way, insofar as the rights of the parties before it are concerned. To be a question of law "involving in the case" there must be necessary to decide that question of law for a just and proper decision of the case. An entirely new point raised for the first time before the

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High Court is not a question involved in the case unless it goes to the root of the matter. It will, therefore, depend on the facts and circumstances of each case whether a question of law is a substantial one and involved in the case, or not; the paramount overall consideration being the need for striking a judicios balance between the indispensable obligation to do justice at all stages and impelling necessity of avoiding prolongation in the life of any lis."

8. The Hon'ble Supreme Court in case of State of Rajasthan

v. Shiv Dayal [(2019) 8 SCC 637], has held that a concurrent

finding of the fact is binding, unless it is pointed out that it was

recorded dehors the pleadings or it was based on no evidence or

based on misreading of the material on records and documents.

The Court held as under:

"When any concurrent finding of fact is assailed in second appeal, the appellant is entitled to point out that it is bad in law because it was recorded dehors the pleadings or it was based on no evidence or it was based on misreading of material documentary evidence or it was recorded against any provision of law and lastly, the decision is one which no Judge acting judicially could reasonably have reached. (see observation made by learned Judge Vivian Bose,J. as his Lordship then was a Judge of the Nagpur High Court in Rajeshwar Vishwanath Mamidwar & Ors. vs. Dashrath Narayan Chilwelkar & Ors.,[AIR 1943 Nag 117 para 43]"

9. The Hon'ble Supreme Court in case C. Doddanarayan

Reddy vs. C. Jayarama Reddy [(2020) 4 SCC 659], has

observed that where two courts have reached a finding which is

not based upon any misreading of material documents, nor is

recorded against provisions of law and neither can it be said that

any Judge acting judiciously and reasonably could not have

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reached such a finding, then High Court is not required to interfere

with such fact findings while exercising its jurisdiction under

Section 100 CPC.

10. As a result, the second appeal is bereft of merits being no

involvement of any substantial question of law and accordingly,