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Kuber Mohapatra and ors. Vs. Nilakantheswar Deb and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtOrissa High Court
Decided On
Case NumberSecond Appeal No. 110 of 1970
Judge
Reported inAIR1974Ori21; 39(1973)CLT720
ActsCode of Civil Procedure (CPC) , 1908 - Sections 9
AppellantKuber Mohapatra and ors.
RespondentNilakantheswar Deb and ors.
Appellant AdvocateG. Rath and ;R.K. Patra, Advs.
Respondent AdvocateB.K. Pal and ;A. Mohanty, Advs.
DispositionAppeal dismissed
Cases ReferredIn Nagiah Bathudu v. Muthacharry
Excerpt:
.....of the civil courts should not be deduced so long as it is not either explicitly expressed or clearly implied. that a right to an act of worship in a particular manner with particular incidents attached to it was clearly a right of a civil nature which could be enforced in the civil courts, and that the right to worship need not be in a temple but may be even in a street......also been sued in their representative capacity representing the other villagers excepting the jogi community of the village.according to the plaintiffs, plaintiff no. 1 is a public deity of the village and all the villagers including the jogi community of the village have the right to worship the deity and to offer bhog to it. they also have the right to have darshan, worship, and offer bhog when the chalanti pratima (moving deity) of plaintiff no. 1 is taken out in procession every year during the dola and jhamu jatra ceremonies through all the streets of the village including hata sahi and mandap sahi (hereinafter referred to at places as 'the sahis'), where plaintiffs 2 to 5 and the members of their community reside. this right they have been exercising since time immemorial, and.....
Judgment:

S. Acharya, J.

1. The defendants have preferred this second appeal against the decision of the Subordinate Judge, Nayagarh in T. A. No. 38/32 of 1968 reversing the decision of the Munsif. Nayagarh passed in O. S. No. 35/67.

2. According to the plaintiffs, plaintiff No. 1 is the presiding public deity of village Chakradharprasad of which both the parties are the residents. Plaintiffs 2 to 5 have filed this suit under the provisions of Order 1, Rule 8, Civil P. C. representing the entire community of Jogis residing in Hata Sahi and Man-dap Sahi of village Chakradharprasad. The defendants have also been sued in their representative capacity representing the other villagers excepting the Jogi community of the village.

According to the plaintiffs, plaintiff No. 1 is a public deity of the village and all the villagers including the Jogi community of the village have the right to worship the deity and to offer Bhog to it. They also have the right to have Darshan, worship, and offer Bhog when the Chalanti Pratima (moving deity) of plaintiff No. 1 is taken out in procession every year during the Dola and Jhamu Jatra ceremonies through all the streets of the village including Hata Sahi and Mandap Sahi (hereinafter referred to at places as 'the Sahis'), where plaintiffs 2 to 5 and the members of their community reside. This right they have been exercising since time immemorial, and have acquired a customary right to have such Darshan and to offer Bhog to the said deity in their Sahis during the aforesaid occasions. The defendants and the non-Jogi community of the village look down upon the plaintiffs 2 to 5 and others of the Jogi community of the village. The defendants, being the leading members of the village, are looking after the management of the affairs of the deity, and at their instance the other members of the non-Jogi community have combined against the Jogi community of the village and they do not allow the Chalanti Pratima to be carried through the streets of the Sahis on the above-mentioned festive occasions, depriving thereby the Jogi community of the village from exercising their customary right to have Darshan and to offer Bhog to plaintiff No. 1 in their own Sahis during the Dola and Jhamu Jatra festivals. The plaintiffs assert that the defendants and the non-Jogi community of the village have no right to obstruct the procession of the Chalanti Pratima of the deity to proceed through the streets of the aforesaid Sahis of the village during the Dola and Jhamu Jatra festivals. The plaintiffs in effect want to enforce their right to get the Chalanti Pratima of the deity to their above-mentioned Sahis and there to have Darshan and offer Bhog to the deity during the above-mentioned festivals. They to that effect pray for a declaration that neither the defendants nor any members of the non-Jogi community of the village have any right to prevent in any manner the Chalanti Pratima of plaintiff No. 1 from being carried during the Dola and Jhammu Jatra festivals through the streets in the aforesaid Hata Sahi and Mandap Sahi of the Village where plaintiffs 2 to 5 and others of the Jogi community reside.

3. The defendants have filed a joint written statement. Therein it is inter alia averred that defendant No. 1 is the Marfatdar of plaintiff No. 1, and plaintiffs 2 to 5 or anybody of the Jogi community have no right to represent the said deity or to institute this suit in the present form and for the reliefs claimed therein. They deny the aforesaid right claimed by plaintiffs 2 to 5, on their own and on behalf of the Jogi community of the village. According to them the Chalanti Pratima of the deity is taken out in procession only once a year the Dola Jatra but that procession never moves through the streets in Hata Sahi and Mandap Sahi and other places in the village where Saharas, Hadis, Kandaras and Dhobis reside. It is alleged that plaintiffs 2 to 5 and/or the members of the Jogi community are not entitled to any of the reliefs claimed by them in this suit. In short, the defendants deny all the averments in the plaint and pray for dismissal of the suit.

4. The trial Court inter alia found the Jogi community had no customary right to have Darshan or to offer Bhog to the deity in their own Sahis; and that plaintiffs 2 to 5 could not represent the deity as defendant No. 1 was its managing trustee. Mostly on the above findings it held that the suit was not maintainable and accordingly dismissed the same.

5. The appellate Court on an independent assessment of the evidence on record has arrived at the finding that the Chalanti Pratima of the deity is taken out in procession on both the Dola and Jhamu Jatra festivals through several streets of the village including those in the Hata Sahi and Mandap Sahi where the Jogi community reside; and that the Jogis, represented by plaintiffs 2 to 5, have a customary right to have Darshan and to offer Bhog to the Chalanti Pratima when the procession moves through the streets in their Sahis on these occasions. It further finds that the plaintiffs' suit is maintainable as the non-Jogi residents of the village, represented by the defendants, interfere with the aforesaid right of the Jogis, represented by plaintiffs 2 to 5, from being carried through the Hata Sahi and Mandap Sahi of the village. In the ultimate analysis the decision of the trial Court has been set aside, and it has been specifically declared that the Jogis of the village Chakradharprasad residing in Hata Sahi and Mandap Sahi, who are represented by plaintiffs 2 to 5, have the right to get Darshan of the Chalanti Pratima of plaintiff No. 1 and to offer Bhog to it in their own Sahis during the Dola and Jhamu Jatra festivals when the deity is carried in procession through the various streets of the village including those in the aforesaid Sahis. It has further been declared that the defendants and the non-Jogi residents of village Chakradharprasad do not have any right to prevent the Chalanti Pratima of plaintiff No. 1 from being carried through the streets in Hata Sahi and Mandap Sahi on the above-mentioned occasions, and/or to obstruct the Jogis from offering Bhog to and to have Darshan of the Pratima on the streets of the aforesaid Sahis on those occasions.

6. There is no dispute that plaintiff No. 1 is a public deity. The findings of fact that the Chalanti Pratima of plaintiff No. 1 is taken out in procession through the various streets including the streets in Hata Sahi and Mandap Sahi on the occasions of Dola and Jhamu Jatra festivals every year, and that since a long time the Jogis of the village, represented by the plaintiffs 2 to 5, as of right have Darshan of and offer Bhog to the said Chalanti Pratima in the streets of the aforesaid two Sahis on the above-mentioned occasions, are not challenged by Mr. Patra, the learned counsel for the appellants.

The only question which is raised by Mr. Patra is that the plaintiff's suit raises, according to him, only questions of religious rites and ceremonies without the question of any office or emoluments attached thereto and so the suit is not maintainable in view of the decision of the Supreme Court reported in AIR 1961 SC 1720, (Sri Sinha Ramanuja Jeer v. Sri Ranga Ramanuja Jeer).

7. Mr. Patra is not correct in his statement about the nature and scope of the suit. In the present suit plaintiffs 2 to 5, representing the Jogi community of the village, in effect want to enforce their right to worship the Chalanti Pratima of the deity (plaintiff No. 1) in their own Sahis and to offer Bhog to it at those places on the occasions of the Dola and Jhamu Jatra festivals without in any way being prevented and/or obstructed by the non-Jogi community of the village represented by the defendants. The finding of fact that the Chalanti Pratima is carried through the streets of the village including the streets in the Hata Sahi and Mandap Sahi on the aforesaid occasions since a very long time stands confirmed. The reliefs claimed in this suit have to be viewed in the context and perspective of the above-mentioned findings of fact. I do not find anything in the Supreme Court decision cited by Mr. Patra which affects the maintainability of a suit of the above nature. Paragraph 9 of the said decision is as follows:

'At the outset it would be convenient and necessary to notice briefly the law pertaining to the maintainability of suits in Civil Courts in respect of honours in temples. Section 9 of the Code of Civil Procedure describes the nature of suits which a Court has jurisdiction to entertain. It can entertain every suit of a civil nature excepting suits of which its cognizance is either expressly or impliedly barred. As a corollary to this, it follows that a Court cannot entertain a suit which is not of a civil nature. Prima facie suits raising questions of religious rites and ceremonies only are not maintainable in a Civil Court, for they do not deal with legal rights of parties. But the explanation to the section accepting the said undoubted position says that a suit in which the right to property or to an office is contested is a suit of civil nature notwithstanding that such right may depend entirely on the decision of a question as to religious rites or ceremonies. It implies two things, namely, (i) a suit for an office is a suit of a civil nature; and (ii) it does not cease to be one even if the said right depends entirely upon a decision of a question as to the religious rites or ceremonies. It implies further that questions as to religious rites or ceremonies cannot independently of such a right form the subject-matter of a civil suit -- Honours shown or precedence given to religious dignitaries when they attend religious ceremonies in a temple cannot be placed on a higher footing than the religious rites or ceremonies, for they are integral part of said rites or ceremonies in the sense that the said honours are shown to persons partaking in the ceremonies. Prima facie honours, such as who is to stand in the ghoshti, in what place, who is to get the tulasi, etc., in which order, and similar others, cannot be considered to be part of the remuneration or perquisites attached to an office, for they are only tokens of welcome of an honoured guest within the precincts of a temple. One would have thought that it would even be a sacrilege to claim a right of precedence in the presence of the Almighty God, for all go before him as humble devotees to earn his blessings and not to assert their self treatment. But a century of case law in that part of the country has recognised certain rights of different grades of devotees and they and their innumerable followers began to cherish them or even to fight for them in Criminal and Civil Courts. This Court, therefore, does not propose to reconsider the question of honours on first principles but only will resurvey the law on the subject with a view to ascertain, and if possible to clarify, the legal position.'

From this paragraph it is evident that their Lordships were concerned with a case relating to honours shown or precedence given to religious dignitaries when they attend religious ceremonies in a particular temple. Their Lordships on a survey of quite a large number of decisions accepted the view that a party claiming an honour like first Theertham has to prove not only that he is an office holder of a temple and that he has been receiving the first Theertham in the Ghoshti but also that the receipt of the first Theertham has become an integral part of the ritual to be performed by him as an office holder; for the receipt of the first Theertham would be consistent with its being shown as a grace from the Lord and also as its being a part of the remuneration to the office. After stating as above, their Lordships again made a review of some more decisions and ultimately summarised the law on the question before them as follows:--

'(1) A suit for a declaration of religious honours and privileges simpliciter will not lie in a Civil Court (2) But a suit to establish one's right to an office in a temple, and to honours and privileges attached to the said office as its remuneration or perquisites, is maintainable in a Civil Court (3) The essential condition for the existence of an office is that the holder of the alleged office shall be under a legal obligation to discharge the duties attached to the said office and for the non-observance of which he may be visited with penalties. (4) So judged, there cannot be an independent office of the theerthakar, for a theerthakar has no obligatory duties to perform; nor can there be an office of arulipad; the said word only connotes that the names of the theerthakars are called out by the archaka in a certain order. (5) Even if theertham is given or other honours are shown in a particular order to a person holding an office, it does not necessarily follow that the said honours are part of the remuneration attached to the office; but it is a question of fact to be ascertained on the evidence whether the said honours are attached to office as part of its perquisites in the sense that they have become an integral part of the ritual to be performed by the recipient as the office-holder or are only shown to him as a mark of respect on the occasion of his visit to the temple.' Thus it is quite evident from the above that the enunciation of the law made in the above decision is in the context and perspective of the particular nature of the suits and the peculiar reliefs claimed therein, which are entirely different from the suit and the reliefs claimed in the present case. Moreover, there is nothing therein which affects the maintainability of a suit of this nature.

8. Exclusion of the jurisdiction of Civil Courts is not to be readily inferred. Section 9, Civil P. C., as it is worded, calls for a liberal interpretation, and conclusion in favour of exclusion of Jurisdiction of the Civil Courts should not be deduced so long as it is not either explicitly expressed or clearly implied.

9. In the case reported in ILR (1953) Cut 423 - (AIR 1953 Orissa 151), (Managobinda Panda v. Sachidananda Swami) it has been held that a right to take part in public worship either in a temple or of a deity while it is being taken out in procession is a civil right cognisable by a Civil Court.

In the decision reported in 31 Mad LJ 758 = (AIR 1917 Mad 903), (Thirumalai Alwar Aiyangar Swamigal v. Lakshmi Sadagopa Aiyangar} it has been held that a right to an act of worship in a particular manner and with particular incidents attached to it is a right of a civil nature and the Civil Court must adjudicate upon any incidents connected with the exercise of such right.

Krishnan, J. in his separate judgment in the said Division Bench decision holds that the right to the act of an worship stands on the same footing as the right to an office; a person is entitled to enforce it by suit in the same way and if any honours or perquisites are attached thereto it follows that they can also be claimed under the same conditions as honours, attached to religious offices.

It has in effect been held in AIR 1952 SC 245, (Nar Hari Shastri v. Shri Badrinath Temple Committee) that a right to enter into a public place of worship for the purpose of 'Darshan' or worship is a right cognizable by the Civil Courts.

In Nagiah Bathudu v. Muthacharry, (1901) 11 Mad LJ 215 it was held by Davis, J. that a right to an act of worship in a particular manner with particular incidents attached to it was clearly a right of a civil nature which could be enforced in the Civil Courts, and that the right to worship need not be in a temple but may be even in a street.

10. The right claimed in the present suit is a right to worship and offer Bhog to the deity in the streets of the aforesaid two Sam's, uninterrupted and unobstructed in any manner whatsover by the other non-Jogis of the village. For the enforcement of their aforesaid right in an effective manner they ask for other ancillary reliefs granted in this suit. Considering the nature of the suit and the reliefs prayed for, or granted therein in the light of the above-mentioned decisions I am firmly of the opinion that the suit is maintainable in the Civil Court.

Thus I do not find any merit in the above-mentioned contention of Mr. Patra.

11. Mr. Patra has not challenged any other aspects of the impugned judg-ment, and so the judgment and decree of the Court below are confirmed as such.

12. The second appeal accordingly is dismissed, but in the circumstances without costs.


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