PETITIONER: UGAMSINGH & MISHRIMAL Vs. RESPONDENT: KESRIMAL & ORS, DATE OF JUDGMENT: 26/11/1970 BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN SHELAT, J.M. VAIDYIALINGAM, C.A. CITATION: 1971 AIR 2540 1971 SCR (2) 836 ACT: Worship-Right of-If of a civil nature for which suit maintainable--Idol of Adeshwarji in temple at Paroli-If idol of Digambri or Swetambri Jain sect idol. HEADNOTE: Respondents 1 to 9 filed a suit against the Appellants and some of the other respondents for a declaration that they hid been carrying on, and were entitled to the worship without interference of the idol of Adeshwarji in the temple named after him at Paroli according to the tenets observed by the Digambri Sect of the Jain religion. They further alleged : that the temple was constructed and the idol consecrated according to and by the followers of their sect; that in December, 1949, the defendants had attempted to convert the said idol into the idol of the Swetambri Sect by putting Chakshus (artificial eyes) thereon, but were prevented due to strong opposition of the followers of Digambri Sect. It was claimed that although a temporary settlement was reached between the two sects while the rights in the temple were to be adjudicated upon by a Civil Court, the defendants had made arrangements to alter the temple according to their tenets and that they were intending to enclose the idol by doors and locks with the object of interfering with the free exercise of a Digambris' right to worship the idol. It was therefore prayed that the defendants be restrained by a permanent injunction from altering the nature and shape and appearance of the idol in any manner or from doing any act which would interfere with the right of worship of the followers of the Digambri Sect. The defendants denied that the Digambri Sect had any right of worship of the idol or had ever exercised such a right and contended that the idol and the temple is in all respects a temple of the Jain Swetambri Sect. The Trial Court decreed the suit and the District Judge in appeal as well as the High Court confirmed the decree. The High Court also fixed three hours a day when the Digambris may use the temple for worship- In appeal to this Court, it was contended inter alia on behalf of the appellant that the reliefs claimed made it clear that the dispute was not of a civil nature; and that the judgment of the Trial Court was wholly vitiated because the Trial Judge not having accepted the evidence produced before him, based his findings on his own inspection. It was also contended that unless the ownership of the temple, was established or that the idol belonged to the Digambri Sect, no injunction could be given nor could the respondents be permitted to worship there; in the plaint the respondents had averred that the idol is a Digambri idol and as they had failed to prove this, their right to worship also failed. HELD:Dismissing the appeal, (i)From the pleadings and the controversy between the parties it was clear that the issue was not one which was confined merely to rites and rituals but one which effected the rights of worship. If the Digambries have a right to worship at the temple, the attempt of the Swetam- 837 belies to put Chakshus or to place Dhwajadand or Kalash in accordance with their tenets and to claim that the idol is a Swetamberi idol was to preclude the Digamberies from exercising their right to worship at the temple, with respect to which a civil suit is maintainable under Section 9 of the Civil Procedure Code. This position is well established. [843 B] Sir Seth Hakam Chand & Ors. vs. Maharaj Bahadur Singh & Ors., 60 I.A. 313 and Nar Hari Sastri and Ors. vs. Shri Badrinath Temple Committee, [1952] S.C.R. 849, referred to. (ii)While, giving his findings the Trial Judge remarked that the evidence led by the Plaintiffs appeared to be correct. These observations themselves show that the evidence on record was an element in the formulation of the Trial Court's judgment buttressed by the observations of the learned Judge during the site inspection. it was clear that the description given by the learned Judge of the idols in the Adeshwarji Temple and the Temple of the Swetemberies were observations made during an inspection at which both the Plaintiffs and Defendants Advocates were present and that there must have been notes also in respect of the inspection made on both the occasions. There was therefore no validity in the contention that the finding of the Trial Judge was based entirely on the result of his inspection. [844 G-845 C] (iii)The concurrent findings of the Courts below that the idol was Nirker' (naked), that there were no Chakshus, no Mukat, no Armlet, no Dhwajadand or no Kalash, would show that the idol was consecrated by the Digamberies. It was also clear that it was an ancient temple and that both the Digamberies and the Swetamberies worship the idol. It was not denied that while the Digamberies will not worship an idol which has Chakshus or which has clothes or Mukat, the Swetamberies would worship a Digamberi idol without these and hence the right to worship a Digamberi idol by both the sects is possible and it has been rightly so held by all the courts. [846 E] Once the right of worship of Digamberies was established they would be entitled to the injunction sought for by them against the Appellants from preventing them from worshiping or from interfering with that right by placing Chakshus in the idol, Dhwajadand, Kalash on the Temple.. The directions of the High Court extending the time for worship by Digamberi Sect from one hour to three hours was not unreasonable. [848 A-B] JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 158 of 1967.
Appeal by special leave from the judgment and order dated
August 5, 1966 of the Rajasthan High Court. in S. P. Civil
Regular Second Appeal No. 222 of 1964.
S. T. Desai, P. C. Bhartari, J. B. Dadachanji and Pukhraj
Singh, for the appellant.
S.V. Gupte, K. K. Jain and H. K. Puri, for respondents Nos.
1 to 9.
That Judgment of the Court was delivered by
P.Jaganmohan, Reddy, J. This Appeal by Special Leave of
this Court is against the Judgment of a Single Judge of the
Rajas-
838
than High Court affirming the Judgment and decree of the,
District Court with certain variations.
Respondents 1 to 9 filed a suit against the Appellants and
Respondents 10 and 11 and two others for a declaration that
they have been carrying on and are entitled to carry on
Darshan, Prakshal and Poojan etc. of the idol of Adeshwarji,
the first Tirthankar in the Temple named after him at Paroli
without interference according to the tenets observed by the
Digambri Sect of the Jain religion.’ The said Temple of Shri
Adeshwarji is said to have been in existence for 200 years
while, the Respondents aver that the inscriptions on it bear
Vikram Samvat 1510 (1454 AD).
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 every 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 said idol by putting up doors and locks with the. object
of interfering with and obstructing the free exercise by the
Digamberies of their unfettered rights to perform Poojan,
Prakshal and worship of the said ideal according to their
tenets. On these allegations it was prayed that the
Defendants be restrained by a permanent injunction from (i)
erecting the Dhwajadand, and putting up Kalash; (ii)
enclosing the idols by putting up doors and locks; or in any
manner altering the nature and shape and appearance of the
idols installed in the said Temple; or directly or
indirectly doing any act or thing which may have the effect
of wounding the religious susceptibilities and sentiments of
the followers of the Digamberi-Jain Sect; and (iii) from
interfering with the free and unfettered rights of the
Plaintiffs of performing Darshan. Prakshal and Poojan and
other rites according to the tenets of Digamber Jain Sect.
839
The Defendants did not deny that they,intended to put the
Netras’ but said that they did so because the Netras which
the idol had even before the said date having been damaged
and fallen out, new Netras were put up. They further
claimed that since its existence the Temple of Adeshwarji
has been in the possession of the Defendants who have been
in exclusive management of the Temple and its property; that
the Plaintiffs never used to do Poojan or Prakshal in the
Temple nor had they any Tight thereto, and that when in 1949
there was a dispute between the parties a temporary
arrangement was made but the Defendants did not admit any
right of Plaintiffs to Poojan. It, was further averred that
the said- idol and the Temple is in all respects Jain
Swetambri Sect, that it has been so used and described in
all the historic records from time to time and that the
Civil Court had no jurisdiction to decide the religious
rights of the parties nor is it a dispute of a civil nature.
On these pleadings issues were framed on 3-12-55 but subse-
quently after the evidence in the case was recorded and
having regard thereto fresh issues were framed in
substitution of the former ones on 4-6-57 but thereafter no
evidence was led by either party. The controversy between
the parties as is evident from these issues was, as to which
Sect of the Jains the main idol of Adeshwarji belongs, which
Sect has constructed the upper portion of the idol referred
to and the nearby portion 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 Notras (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.
The Civil Judge of Bhilwara decreed the suit of the Plain-
tiffs, 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.
On an appeal from this Judgment the High Court allowed the
Appeal holding that inasmuch 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
determining the appeal on merits. Leave to Appeal was also
refused.
840
After remand the District Judge confirmed the Judgment and
decree of the Trial Court with certain variations. Against
this Judgment the Appellants filed an appeal to the High
Court and the Respondents filed cross objections. The High
Court affirmed the Judgment of the District Judge except for
that part of the decree directing the Appellants to keep
open the doors of the Temple between 8.30 and 9.30 each
morning to enable the Respondents to worship without
interference, which, however, was modified to enable
Respondents to worship at the Temple between 6 a.m. to 9
a.m. every morning, during which time the Temple was not to
be locked. It further directed that if the Swetambaries
wanted also to worship during this period without disturbing
the Digamberies they had the liberty to do so.
The learned Advocate for the Appellants Shri S. T. Desai
urged several contention before us namely; (i) the High
Court was in error in not deciding the ownership of the
Temple or of the idol; (ii) that it should have held that a
presumption of ownership would arise having regard to the
concurrent findings that the Swetamberies were in management
and possession of the Temple; (iii) that the reliefs claimed
make it clear that the dispute is not of a civil nature for
in any view of the matter the Courts were in error that
placing of the Dhwajadand and Kalash on the Temple changes
the nature of the temple; (iv) that the High Court should
not have accepted the cross appeal fixing 3 hours time for
the worship of the Digamberies Sect; (v) that the Judgment
of the Trial Court is wholly vitiated because the Trial
Judge not having accepted the evidence based his findings on
his own inspection.
Before as deal with these contentions, it is necessary to
detail the findings of the Courts below
The Trial Court while decreeing the Plaintiff’s suit held
that though it was not proved as to who built the Temple of
Adeshwarji initially, both Digamberies and Swetamberies
worshipped in the said Temple; that the management and the
possession of the Temple was with the Defendants
Swetamberies for a long time, that the Swetamberies were not
entitled to put artificial eyes or to put Dhwajadand or
Kalash on the Temple; and that the Defendants were trying to
interfere with the rights of the Plaintiffs’ and 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
841
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
their tenets;
(2) That the idol being Swetamberi, the Defendants are
entitledto put artificial eyes in the idol, Dhwajadand and
Kalash on them Temple;
(3) That the Defendants having been managing the Temple for
the last so many years, their management cannot be
interfered with it for the betterment of the idol, it is
kept under lock, it cannot be said to wound the sentiments
and religious feelings of the Plaintiffs.
The District Judge held on the first contention that though
the Temple is admittedly an old one there is not an iota of
evidence as to who constructed the Temple originally; that
the Appellants have been in management- and possession of
the Temple, which fact was not really challenged by the
Respondents, though this by itself does not imply that the
Temple is a Swetamberi Temple. It was also contended that
the Respondents had no right to worship the idol but can
only have Darshan. This contention was also rejected on a
review of the evidence led by both parties, and also, by
relying on Exh. 1 which embodied a compromise between the
two Sects under which the right of the Respondents to
worship the idol was specifically admitted.
On the second point urged before him the District Judge held
that the Appellants case that there were eyes already in the
idol, but as they got damaged they wanted to replace them is
not substantiated by the evidence led on behalf of the
Appellants themselves. It also held that an attempt was
made by, the Swetamberies in 1949 to install the eyes in the
idol and that as most of the Appellant’s witnesses admitted
that though Dhwajadand was offered on certain occasions
which were retained by the Oswals (Swetamberies) there was
no Dhwajadand and Kalash on the temple itself.
On the third point it was held that the Appellants, who were
in management and possession of the Temple for the last so
many-
842
years, have a right to lock the main Temple, to prevent it
from being defiled, which does. not in any way interfere
with the right of worship of the Respondents or any other
person on their behalf. This being so’ the Trial Courts
decree excepting for restraining the Appellants to lock the
Temple was affirmed subject to the further,direction as
already noticed keeping the Temple open for worship of the
Respondents and the Digambaries Sect between 8.30 and 9.30
a.m.
When the appeal and cross objections 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 Direc-
tor 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 Appellant tried to persuade us
to look into that Report and urged that the evidence of the
Director was necessary and ought to have been allowed to be
adduced. In view of the concurrent findings of all the
Courts on certain material aspects of the case to which we
shall presently refer, it is possible to determine the
controversy between the parties, as such we agree with the
High Court that no additional evidence is required at this
stage, though the parties could have led better evidence in
the initial stages itself.
It was further contended on behalf of the Appellants that
the Respondents suit was not maintainable because it did not
involve a dispute of a Civil nature. Respondents’ learned
Advocate though he first indicated that he would raise a
preliminary objection to this contention being urged because
when the High Court set aside the Judgment of the District
Judge and remanded the case to be decided on merits holding
that the suit was maintainable as it raised a dispute of a
civil nature, the Appellants ought to have appealed to the
Supreme Court. The learned Advocate for the Appellants
however contends that the remand order of the
843
High Court did not finally dispose of the rights of the
parties as such it is open to him to urge in this appeal
that the suit was not maintainable on the ground that it
does not raise any dispute of a civil nature. Though the
preliminary objection was not subsequently pressed even on
the merits, the learned Advocate for the Appellant is unable
to satisfy us that the suit is not of a civil nature. From
the pleadings and the controversy between the parties it is
clear that the issue is not one which is confined merely to
rites and rituals but one which effects the rights of
worship namely whether the Swetamberies by placing Chakshus,
Dhwajadand and Kalash according to their tenets or by
locking the temple could preclude the Digamberies from
worshipping in accordance with their tenets. It is admitted
that the Digamberies will not worship the idol which is not
Nirakar’ or which has Chakshus. If the Digamberies have a
right to worship at the temple the attempt of the
Swetamberies to put Chakshus or to place Dhwajadand or
Kalash in accordance with their tenets and to claim that the
idol is a Swetamberi idol was to preclude the Digamberies
from exercising their right to worship at the temple. These
findings clearly 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 & Ors. v. Maharaj
Bahadur Singh & Ors.(1), 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 accordance with
orthodoxy or with previous practice, but whether they do in
fact interfere with the plaintiff’s rights of worship”.
Again this Court in Nar Hari Sastri and Others v. Shri
Badrinath Temple Committee (2 ) was concerned with the
rights of the Deoprayagi Pandas to enter the Badrinath
Temple alongwith their Yajmans or clients, which it was
claimed the Pawal or the Trustee denied and threaten to
obstruct the said Deoprayagi
(1) 60 LA. 313.
(2) [1952] S.C.R. 849.
844
Pandas from entering the precincts of the Temple along with
their Yajmans or from assisting the pilgrims in the matter
of Darshans etc. inside the Temple. The Defendant however,
asserted that it was neither necessary nor desirable that
the plaintiffs should be allowed to accompany their Yajmans
or clients into the Temple, as he had himself made adequate
arrangements for the Darshan and worship of the pilgrims and
that as the sole Trustee and manager of the Temple he had
the right to regulate entry into the Temple so the over-
crowding might be avoided and order maintained inside it.
Mukerjea J, (as he then was) speaking for the Court dealt
with this contention in the following passage
“The true position therefore is that the
Plaintiffs’ right of entering the temple along
with their Yajmans is not a precarious or
permissive right depending for its existence
upon the arbitrary discretion of the Temple
authorities; it is a legal right in the true
sense of the expression but it can be
exercised subject to the restrictions which
the Temple Committee may impose in good faith
for maintenance of order and decorum within
the Temple and for ensuring proper performance
of customary worship. In our opinion, the
Plaintiffs are entitled to a declaration in
this form.”
It is clear therefore that a right to worship is a civil
right, interference with which raises a dispute of a civil
nature though as noticed earlier dispute which are in
respect of rituals or ceremonies alone cannot be adjudicated
by Civil Courts if they are not essentially connected with
Civil rights of an individual or a sect on behalf of whom a
suit is filed. In our view the contention of the learned
Advocate for the Appellant to the maintainability of the
suit is not well founded.
One other objection which the learned Advocate for the
Appellants urged at the outset is that the findings of the
Trial Judge are vitiated because he did not rely on 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
845
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 evidence on record. Even while giving
the findings the Trial Judge remarked that the evidence led
by the Plaintiff appears to be correct. These observations
themselves show that the evidence on record was an element
in the formulation of the Trial Courts Judgment buttered by
the observations of the learned Judge during the site
inspection. There is therefore, no validity in the
contention that the finding of the Trial Judge was based
entirely on the result of his inspection. It is also
evident from a narrative given in the Judgment of what was
noticed during the inspection that the Judge had inspected
the site on two occasions once on 24-3-1956 and again a year
and two months thereafter on 23-5-1957. The details given
by him could not have been given if he had not made some
inspection notes. It would also appear that at the time of
the inspection Council for the Plaintiffs- and Defendants
were present because when giving a description of the idol
of Neminathji in the Swetemberi Jain Temple when it was
noticed that some portion of the idol under the waist and
naval is raised and is like a line, the Council for the
Plaintiffs pointed out to him that mark denoted the wearing
of a loin cloth while the Counsel for the Defendants said it
was the mark of an Artist. Again in respect of the
observation that on the back-side and at the lower portion
of the navel some portion is raised, the Counsel for the
Plaintiffs had pointed out to the loin cloth, while the
Counsel for the Defendants said that it has been engraved by
an Artist without any sense. We are satisfied that the
description given by the learned Judge of the idols in the
Adeshvarji Temple and the Temple of the Swetambaries were
observations made during an inspection at which both the
Plaintiffs’ and Defendants’ Advocates were present and that
there must have been notes also in respect of the inspection
made on both the occasions. The Appellants had at no time
made a grievance either to the District Judge or to the High
Court or even before this Court except during the stage of
arguments that there were no inspection notes nor that the
inspection was made by the Judge behind the back of the
parties. if these objections had been raised earlier the
Respondents would have had an opportunity of showing that
there were inspection notes. The Judgment in our view is
not based solely on the result of personal 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,
846
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.
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 wavered 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 of the
Digamberi Sect and that the Plaintiffs and the other
followers of the Digamberi sect have been performing
Darshan, Prakshal and Poojan of the said deity in the said
Temple for a considerable number of years past and really
ever since the Temple was founded. There is therefore,
force in the contention of Shri Gupte, learned Advocate for
the Respondents that having regard to the concurrent
findings of the Courts below that the idol was Nirakar’
(naked) that there were no Chakshus, no Mukat, no Armlet, no
Dhwajadand or no Kalash, would show that the idol was
consecrated by the Digamberies. It was also held as had
already been noticed that though- it is not possible to say
when the Temple was constructed and the idol consecrated it
was an ancient Temple and that both the Digamberies and the
Swetamberies worship the idol. It is not denied that while
the Digamberies will not worship an idol which has Chakshus
or which has clothes or Mukat( the Swetamberies would
worship a Digamberi idol without these and hence the right
to worship a Digamberi idol by both the sects is possible
and indeed has been so held by all the Courts. Even the
Defendants’ witnesses substantiate these findings. We would
refer to only two of these witnesses. Shri Suwa Lal D.W. 4
even though he says that the Temple belonged to the Oswals
in which he and his father has been performing Sewa for the
last 30 or 35 years on behalf of the Oswals (Swetamberies)
admitted that since he attained the age of discretion and
upto the time of giving evidence he had never seen Adinathji
wearing clothes, never saw the idol with eyes and had never
seen Dhwajadand or Kalash on the Temple and does not know
whether the idol belongs to Oswals or Saravagis
(Digamberies). D.W. 3-Shri Pokhar a barber of Oswals also
supports this witness. That the Digamberies had a right to
worship is also borne out by Ex. 1 dated
847
23-12-49 which was a compromise entered into between Swetam-
beries and Digamberies at the time when the Swetamberies
attempted to put Chakshus in the idol. No doubt this was an
interim arrangement till the decision of a Civil Court
adjudicating the respective rights, but there was never any
question of either Sect not having the right to worship the
idol. The dispute had arisen only as to whether
Swetamberies can fix Chakshus in the idol. Exh. 1 states as
follows:
“We Panchas give this award 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. Digambries 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 worshiping 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 Sec.
110 of the Evidence Act does not arise nor is it relevant.
It is no doubt contended by the Respondents Advocate that
when consecration of an idol takes place the ownerships of
the Temple is in the idol and therefore, the question, of
presumption under Sec. 110 does not arise. It is again
contended by Shri Desai that the moment it is held that it
is not possible to, come to a conclusion as to which Sect
the idol belongs, as has been held by the Court below, the
Respondents cannot be allowed to object to the Appellants
worshipping the idol according to their tenets. This
contention, however, in our view ignores the rights of the
Digamberies to worship in accordance with their tenets. If
the contention of the learned Advocate for the Appellants is
accepted it will be tantamount to holding that Digamberies
have no right to worship as there would denomination change
in the idol if the Swetamberies are held to have the right
to worship it according to their tenets by placing Chakshus
in the idol or by erecting their Dhwajadand or Kalash over
the Temple.
848
Lastly it is urged that the High Court ought not to have
entertained the cross objection by extending the time for
worship from 1 hour to 3 hours. In our view the directions
of the High Court are not unreasonable nor do they in any
way affect the right of the Respondents to worship because
the directions clearly enable the Swetamberies who wish to
worship the deity within that period without disturbing the
Digamberies to be at liberty to do so and likewise it will
be open to Digamberies to go and worship in the temple
during the period it is kept open. In view of the acute
controversy between these 2 sects and their reluctance to
arrive at an amicable settlement the directions given by the
High Court are manifestly reasonable just and proper. In
this view the appeal fails and is dismissed with costs.
R.K.P.S. Appeal dismissed.
849