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TMI Blog1970 (11) TMI 110X X X X Extracts X X X X X X X X Extracts X X X X ..... ons on it bear Vikram Samvat 1510 (1454 AD). 3. The Plaintiffs further alleged that the Temple was constructed and the idol was consecrated according to and by the followers of the tenets of the Digamber sect; that the Plaintiffs and the other followers of the Digamber Sect have been performing Darshan, Prakshal and Poojan of the said idol according to their tenets ever since the Temple was founded; that on the 23rd of December 1949 the Defendants attempted to convert the said idol into the idol of Swetambri Sect by putting Chakshus (artificial eyes) thereon, but were prevented from doing so by a strong opposition of the followers of the Digamber Sect; that thereafter some temporary arrangements were made between the followers of the two Sects who agreed to maintain the status-quo until a decision of the Civil Court on the rival claims of the parties was given; that in disregard of the temporary settlement and without getting the rights in the Temple adjudicated upon by the Civil Court, the Defendants made arrangements to put Dhwajadand and Kalash on the said Temple according to their tenets, and that they also further learnt that the Defendants were intending to enclose the sai ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tion of the temple; under what tenets have the followers of the Sects, Digamber and Swetamber, performed Darshan, Prakshal and Poojan of the idol Of the temple referred to and can any Sect change those previous tenets; whether the Netras (artificial eyes) of the idol, Bhujband and Dhwajadand over the temple existed before and if not, can they be placed and inserted now; and whether the Temple is in possession and under the management of the Defendants alone from the time it came into existence. 6. The Civil Judge of Bhilwara decreed the suit of the Plaintiffs, against which the Defendants appealed. The District Judge, however, allowed the appeal and dismissed the suit on the ground that in his opinion no question of any right to property or office was involved in the suit and consequently the plaintiffs suit was dismissed with costs. 7. On an appeal from this Judgment the High Court allowed the Appeal holding that in-as-much as the allegations in the plaint relate to an assertion of a right of worship and an interference with that right, a dispute of civil nature arises which is clearly cognizable by a Civil Court. In this view the case was remanded to the District Judge for ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d were making alterations to transform the character of the Temple. In this view the Trial Judge gave a declaration in favour of the Plaintiffs against Defendants in their personal capacity as well as representatives of the Jain Swetamberies Sect that the Plaintiffs or the followers of the Digamberi Sect have been performing Prakshal, Poojan and Darshan and are also entitled to do so in future. He also issued a permanent injunction against the Defendants in their personal capacity as well as representatives of the Jain Swetamberi Sect restraining them from changing the shape and appearance of the idol by putting Netras (artificial eyes), Armlets, and Mukat, from erecting Dhwajadand and putting Kalash on the Temple and putting locks on the shutters of the Temple. The Appellants were further directed not to restrain the followers of the Jain Digamber Sect from performing Darshan, Poojan and Prakshal according to their tenets. After the remand Appellants urged before the District Judge the following contentions : (1) That the Temple belongs to Swetamber Sect and the Plaintiffs are entitled to have Darshan only of the idol, otherwise they have got no right to worship it according to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ons were pending before the High Court the Appellants filed an application under Order 41, Rule 27 of the Civil Procedure Code for recording the evidence of Shri Satya Prakash Srivastava, Director of Archaeology and Museum, Rajasthan to establish the denominational identity of the idol in the Temple. It was stated in that application that since he District Judge had remarked that the parties had not produced sufficient evidence and it was not possible to come to any conclusions regarding the nature of the idol as to whether it is Swetamberi or Digamberi, the petitioner had moved the Director of Archeology who after a thorough examination came to the conclusion that the idol was Swetamberi. In view of this Report it was prayed that the said Director be called in evidence and be examined. In the alternative it was prayed that the case be remanded to the Trial Court for allowing the parties to lead additional evidence so that effective adjudication can be made. The High Court however, did not feel the need for any additional evidence as the case could be disposed of on the material on record. In this view it dismissed the application. Even before us the learned Advocate for the Appell ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... establish that the Appellants interfered with the rights of Digamberies to worship with respect to which a civil suit is maintainable under Section 9 of the Civil Procedure Code. This position is well established. If authority was needed we may refer only to two cases. The Privy Council in Sir Seth Hukam Chand and Ors. v. Maharaj Bahadur Singh and Ors. 60 I.A. 313., had to deal with the practices observed by Digamberies and Swetamberies on the Parasnath Hill which is considered to be sacred by both the Sects but in respect of which the Digamberies objected to the continuous employment of human beings on the Hill and against building thereon of Dwellings necessarily involving according to their tenets of a sacrilegious pollution and desecration of the sacred hill, while the Swetamberies had no such belief. Sir John Wallace delivering the opinion of the Board observed :- These are matters for the Jain themselves and the Civil Courts are only concerned with them in so far as they are relevant to questions of civil right such as an alleged interference with the Plaintiffs rights to worship on the hill, and in that case the issue must be not whether the acts complained of are in accor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the evidence on record but decided to which Sect the idol in dispute belongs, only on what he found on his inspection of the idol and the Temple which cannot be evidence in the case, without his being subjected to cross-examination. It is further contended that even if what has been stated in the Judgment is what the Trial Judge had observed in his inspection there is nothing to show that he had drawn up inspection notes and made them part of the record as required under the law. The contention that the Trial Judge had given his findings mainly on the observations made during his inspection in the first place is based on insufficient appreciation of what was really observed when dealing with the question as to which Sect the idol in dispute belongs. It was observed in the Judgment that most of the witnesses produced were non-Jains and therefore, their evidence does not carry much weight to establish to which Sect the idol belongs. After stating that the remaining witnesses of the parties have given statements in favour of their party the Trial Judge said that these statements also cannot be much relied upon. The decision of his case is based mostly on the site inspection and the ev ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... onal inspection made by the Trial Judge, which inspection was for the purposes of understanding the evidence in the case and has been so used by the Trial Judge. We must, therefore, reject the contention of the learned Advocate for the Appellants that the finding in respect of the idol is vitiated. In this view it is not necessary to deal with any of the decisions referred to before us. 19. It was contended by Shri Desai that unless the ownership of the Temple is established or that the idol belongs to the Digamberies no injunction can be given nor the Plaintiffs permitted to worship. It is argued that in the plaint the Respondents averred that the idol is a Digamberi idol and if they have failed to prove it then their right to worship fails. At any rate the argument proceeds that the High Court was in error in not deciding the ownership of the Temple or of the idol. We have earlier indicated the plaint averments in which there is no mention of the ownership of the Temple or of the idol but that paragraphs 2 and 3 of the plaint merely gave a description of the Temple and the idol when it is averred that the idol was constructed and consecrated according to and by the followers o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that a dispute had arisen between the Swetamberies and Digamberies as Swetamberies recently fixed eyes on the idol. This new thing should not continue. These eyes should be removed. Digamberies have a right to perform Poojan so they can mark saffron 'Tiki' and have Darshan and come back. Digamberies will not performs Prakshal, Poojan. Swetamberies will continue incurring expenses as usual. The idol shall remain backed (Nirakar) The representatives of both Sects have signed this award, as a temporary measure agreeable to both the Sects, who indicated that they would press their rights in a Civil Court. Once the right of worship of the Digamberies is established there is little doubt that they are entitled to the injunction sought for by them against the Defendants Appellants from preventing them from worshipping or from interfering with that right by placing Chakshus in the idol, Dhwajadand, Kalash on the Temple. In view of these findings the further question that when once it has been found that the Swetamberies have the right of management and possession of the Temple there is a presumption of ownership under Section 110 of the Evidence Act does not arise nor is it rele ..... X X X X Extracts X X X X X X X X Extracts X X X X
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