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Laxman Babaling Gurva Vs. Vishram Mahadev Rane - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Reported inAIR1925Bom209; 76Ind.Cas.629
AppellantLaxman Babaling Gurva
RespondentVishram Mahadev Rane
Excerpt:
.....the caste of the accused in the fir, that cannot be a ground for either not registering the offence under section 3 of the act or for quashing such complaint - such a suit appears to be clearly maintainable......determine this question of fact for ourselves as we are entitled to do. for a satisfactory disposal of this appeal we think it necessary to have a distinct finding on that issue. we, therefore send back the case for a finding on issue no. 1 as framed in the trial court. finding to be certified to this court in two months. there will be no further evidence.
Judgment:

1. In this case the plaintiff sued for an injunction permanently restraining the defendant from obstructing him in worshipping the deity in question, in doing every other business in connection with the deity and appropriating the profits at the temple of the deity, on the basis that he was entitled to all those rights to the exolusion of the defendant. The defendant's case was that the plaintiff was merely his servant, and that the plaintiff had no right as alleged by him. He further pleaded that as Mankari he was entitled to all the rights that the plaintiff claimed in connection with this temple,

2. Among the issues raised on those pleadings the 1st issue is in these terms: 'Is plaintiff a rightful worshipper of the deity? And is he entitled to appropriate the incomeavailableat the temple as alleged? The trial Court found this issue in favour of the plaintiff, and after dealing with the other issues as to whether a suit of this character was maintainable under Section 9 of the Civil Procedure Code, and as to whether any obstruction was caused by the defendant to the plaintiff in the enjoyment of his rights in 1919 as alleged, and as to whether the suit was in time, the Court passed a decree in favour of the plaintiff in the following terms:-'I declare that the plaintiff is entitled to worship the deity Ninabai, to consult 'Kaul Prasad Dhene at the temple of Ninabai, to do all other work in connection with the deity and to appropriate the profits at the temple and grant the permanent injunction restraining the defendant from obstructing the plaintiff in the enjoyment of his rights'. Rs. 5 as damages-and future mesne profits at the rate of Re. 1 per month were also allowed.

3. The defendant appealed to the District Court. The learned District Judge amended the decree by deleting from the decree the declaration that 'the plaintiff was entitled to appropriate all profits in the temple, the award of damages and future mesne profits'. In doing so the learned Judge did not come to any conclusion on the 1st issue as to whether the plaintiff was the rightful worshipper, and was entitled to appropriate the offerings at the temple. The learned Judge thought that the plaintiff was not in any sense the manager or the superintendent of the temple to the exclusion of others. Having regard to the pleadings and the way in which the case has been dealt with by the trial Court, it appears that really the case of the plaintiff was that he was the rightful worshipper, and that he had the right to look after all the concerns of the temple over and above taking the offerings at the temple.

4. It has been faintly argued before us that such a suit is not maintainable. We think that there is a dispute between the plaintiff and the defendant as to the right to the property which consists of voluntary offerings made before the deity. That is specifically referred to in the plaint and that is the property with reference to which the tight is to be determined. Such a suit appears to be clearly maintainable. In the present case it is quite clear that there is a contest substantially as to the property, and incidentally as to the right to perform the worship at the temple which is connected with the right to take the offerings. The respondent's contention that the suit is not maintainable must be disallowed.

5. It is unfortunate that the lower Appallate Court has not recorded a finding on the first issue in the case in the trial Court. That Court found in favour of the plaintiff, and there is no finding of the lower Appellate Court on the point. We do not think that under the circumstances of this case we can determine this question of fact for ourselves as we are entitled to do. For a satisfactory disposal of this appeal we think it necessary to have a distinct finding on that issue. We, therefore send back the case for a finding on issue No. 1 as framed in the trial Court. Finding to be certified to this Court in two months. There will be no further evidence.


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