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Bombay High Court
Limba Bin Krishna And Ors. vs Rama Bin Pimplu And Anr. on 1 September, 1888
Equivalent citations: (1889) ILR 13 Bom 548
Author: Birdwood
Bench: Birdwood, Parsons


JUDGMENT

Birdwood, J.

1. The plaintiffs seek a declaration of their right to officiate, in alternate years, as priests in a certain temple and to receive, in those years, the offerings of worshippers in the temple. They seek also to be awarded certain temple lands belonging to their share. The Subordinate Judge awarded the claim; but his decision has been reversed by the Assistant Judge on the following grounds: (1) that the Civil Courts have no jurisdiction to entertain the first part of the claim; (2) that the grant of a declaratory decree would be opposed to Section 42 of the Specific Relief Act, as certain further relief was not asked for, and (3) because the Subordinate Judge had mistaken the nature of the claim to the land, the suit not having been one for partition, and the evidence being insufficient to establish the plaintiffs’ title. As to the first objection taken by the Assistant Judge to the Subordinate Judge’s decision, we observe that, in Mitta Kunth Audhicarry v. Neerunjun Audhicarry 14 Beng. L.R. 166, Couch, C.J. described the right of a plaintiff to perform the worship of an idol as “property,” subject to partition, the joint owners being entitled to perform the worship in turn; and in Debendronath Mullick v. Odit Churn Mullick I.L.R. 3 Calc. 390, it is held by the Calcutta High Court that a refusal to deliver up an idol, so as to prevent the priest from performing his turn of worship, gave the aggrieved party the right to sue for damages. In Pranshankar v. Prannath Mahanand 1 Bom. H.C. Rep. 12, it was held that an, action would be to obtain a binding declaration of a person’s right to perform the duties of a pujari and to receive the proceeds of the mandir. This last decision, we think, governs the present case, in which there is no question as to the right of either the plaintiffs or the defendants to recover the offerings from the worshippers, it being apparently admitted that the person performing the service h&$ the fight to the fees. The case is not one, therefore, to which the decision in Shankara v. Hanma I.L.R. 2 Bom. 470–could be applied. Nor is the decision in Karayan Vithe Parab v. Krishnaji Sadashiv I.L.R. 10Bom. 233 applicable, for it cannot be said that the office in question is a mere dignity unconnected with any emoluments.

2. The second objection taken by the Assistant Judge was not suggested by defendant No. 1, either in the original suit or the appeal. If the claim was really open to the objection, the plaintiffs ought to have been allowed the opportunity of amending their plaint when presented, and should now be allowed that opportunity, if necessary.

3. As to the third objection, we think that the Subordinate Judge’s decision as to the land is not open to the comment that it is based on “theoretical considerations” or on “inferences raised as to the most scientific boundary,” and that it ought not to have been reversed on that ground. The plaintiffs’ title to a specific portion, amounting to a half of the temple lands, is admitted. The real question is as to the actual boundary between the plaintiffs’ land and the defendants’ land. That question is one of evidence, and should be so dealt with.

4. We reverse the decision of the lower Appellate Court, and remand the case for a re-hearing of the appeal on the merits. Costs to abide the result.


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