{"id":22261,"date":"1970-11-26T00:00:00","date_gmt":"1970-11-25T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/ugamsingh-mishrimal-vs-kesrimal-ors-on-26-november-1970"},"modified":"2018-12-07T17:24:57","modified_gmt":"2018-12-07T11:54:57","slug":"ugamsingh-mishrimal-vs-kesrimal-ors-on-26-november-1970","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/ugamsingh-mishrimal-vs-kesrimal-ors-on-26-november-1970","title":{"rendered":"Ugamsingh & Mishrimal vs Kesrimal & Ors on 26 November, 1970"},"content":{"rendered":"
Supreme Court of India<\/div>\n
Ugamsingh & Mishrimal vs Kesrimal & Ors on 26 November, 1970<\/div>\n
Equivalent citations: 1971 AIR 2540, \t\t 1971 SCR (2) 836<\/div>\n
Author: P J Reddy<\/div>\n
Bench: Reddy, P. Jaganmohan<\/div>\n
           PETITIONER:\nUGAMSINGH & MISHRIMAL\n\n\tVs.\n\nRESPONDENT:\nKESRIMAL  & ORS,\n\nDATE OF JUDGMENT:\n26\/11\/1970\n\nBENCH:\nREDDY, P. JAGANMOHAN\nBENCH:\nREDDY, P. JAGANMOHAN\nSHELAT, J.M.\nVAIDYIALINGAM, C.A.\n\nCITATION:\n 1971 AIR 2540\t\t  1971 SCR  (2) 836\n\n\nACT:\nWorship-Right  of-If  of  a  civil  nature  for\t which\tsuit\nmaintainable--Idol of Adeshwarji in temple at Paroli-If idol\nof Digambri or Swetambri Jain sect idol.\n\n\n\nHEADNOTE:\nRespondents  1 to 9 filed a suit against the Appellants\t and\nsome  of the other respondents for a declaration  that\tthey\nhid  been  carrying  on, and were entitled  to\tthe  worship\nwithout interference of the idol of Adeshwarji in the temple\nnamed  after him at Paroli according to the tenets  observed\nby  the Digambri Sect of the Jain religion.   They  further\nalleged\t :  that  the temple was constructed  and  the\tidol\nconsecrated according to and by the followers of their sect;\nthat  in  December, 1949, the defendants  had  attempted  to\nconvert the said idol into the idol of the Swetambri Sect by\nputting\t  Chakshus  (artificial\t eyes)\tthereon,  but\twere\nprevented  due\tto strong opposition of\t the  followers\t of\nDigambri  Sect.\t  It was claimed that although\ta  temporary\nsettlement  was\t reached  between the two  sects  while\t the\nrights in the temple were to be adjudicated upon by a  Civil\nCourt,\tthe  defendants had made arrangements to  alter\t the\ntemple\taccording  to  their  tenets  and  that\t they\twere\nintending  to enclose the idol by doors and locks  with\t the\nobject of interfering with the free exercise of a Digambris'\nright to worship the idol.  It was therefore prayed that the\ndefendants  be\trestrained by a\t permanent  injunction\tfrom\naltering the nature and shape and appearance of the idol  in\nany manner or from doing any act which would interfere\twith\nthe right of worship of the followers of the Digambri  Sect.\nThe  defendants denied that the Digambri Sect had any  right\nof  worship of the idol or had ever exercised such  a  right\nand  contended\tthat  the  idol and the\t temple\t is  in\t all\nrespects a temple of the Jain Swetambri Sect.\nThe  Trial Court decreed the suit and the District Judge  in\nappeal as well as the High Court confirmed the decree.\t The\nHigh  Court also fixed three hours a day when the  Digambris\nmay use the temple for worship-\nIn  appeal  to this Court, it was contended  inter  alia  on\nbehalf\tof  the appellant that the reliefs claimed  made  it\nclear  that the dispute was not of a civil nature; and\tthat\nthe judgment of the Trial Court was wholly vitiated  because\nthe  Trial Judge not having accepted the  evidence  produced\nbefore\thim, based his findings on his own  inspection.\t  It\nwas also contended that unless the ownership of the  temple,\nwas  established or that the idol belonged to  the  Digambri\nSect, no injunction could be given nor could the respondents\nbe permitted to worship there; in the plaint the respondents\nhad averred that the idol is a Digambri idol and as they had\nfailed to prove this, their right to worship also failed.\nHELD:Dismissing the appeal,\n(i)From\t the  pleadings and the\t controversy  between  the\nparties\t it was clear that the issue was not one  which\t was\nconfined merely to rites and rituals but one which  effected\nthe  rights of worship.\t If the Digambries have a  right  to\nworship at the temple, the attempt of the Swetam-\n837\nbelies\tto put Chakshus or to place Dhwajadand or Kalash  in\naccordance with their tenets and to claim that the idol is a\nSwetamberi  idol  was  to  preclude  the  Digamberies\tfrom\nexercising  their  right  to worship  at  the  temple,\twith\nrespect to which a civil suit is maintainable under  Section\n9  of  the  Civil Procedure Code.   This  position  is\twell\nestablished. [843 B]\nSir  Seth  Hakam Chand & Ors. vs.  Maharaj Bahadur  Singh  &\nOrs.,  60  I.A. 313 and Nar Hari Sastri and Ors.  vs.\tShri\nBadrinath Temple Committee,<\/a> [1952] S.C.R. 849, referred to.\n(ii)While,  giving  his findings the Trial  Judge  remarked\nthat  the  evidence  led by the Plaintiffs  appeared  to  be\ncorrect.   These  observations\tthemselves  show  that\t the\nevidence on record was an element in the formulation of\t the\nTrial Court's judgment buttressed by the observations of the\nlearned Judge during the site inspection. it was clear\tthat\nthe  description given by the learned Judge of the idols  in\nthe  Adeshwarji\t Temple and the Temple of  the\tSwetemberies\nwere  observations made during an inspection at\t which\tboth\nthe  Plaintiffs\t and Defendants Advocates were\tpresent\t and\nthat  there  must  have been notes also in  respect  of\t the\ninspection made on both the occasions.\tThere was  therefore\nno validity in the contention that the finding of the  Trial\nJudge  was based entirely on the result of  his\t inspection.\n[844 G-845 C]\n(iii)The  concurrent findings of the Courts below  that\nthe idol was Nirker' (naked), that there were no  Chakshus,\nno Mukat, no Armlet, no Dhwajadand or no Kalash, would\tshow\nthat  the idol was consecrated by the Digamberies.   It\t was\nalso  clear that it was an ancient temple and that both\t the\nDigamberies  and the Swetamberies worship the idol.  It\t was\nnot  denied that while the Digamberies will not\t worship  an\nidol  which has Chakshus or which has clothes or Mukat,\t the\nSwetamberies  would worship a Digamberi idol  without  these\nand hence the right to worship a Digamberi idol by both\t the\nsects is possible and it has been rightly so held by all the\ncourts. [846 E]\nOnce  the  right of worship of Digamberies  was\t established\nthey would be entitled to the injunction sought for by them\nagainst\t  the\tAppellants  from   preventing them   from\nworshiping  or from interfering with that right\t by  placing\nChakshus in the idol, Dhwajadand, Kalash on the Temple..\nThe  directions\t of the High Court extending  the  time\t for\nworship\t by Digamberi Sect from one hour to three hours\t was\nnot unreasonable. [848 A-B]\n\n\n\nJUDGMENT:\n<\/pre>\n
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 158 of 1967.
\nAppeal by special leave from the judgment and order  dated
\nAugust\t5, 1966 of the Rajasthan High Court. in S. P.  Civil
\nRegular Second Appeal No. 222 of 1964.\n<\/p>\n
S.   T. Desai, P. C. Bhartari, J. B. Dadachanji and  Pukhraj
\nSingh, for the appellant.\n<\/p>\n
S.V. Gupte, K. K. Jain and H. K. Puri, for respondents Nos.
\n1 to 9.\n<\/p>\n
That Judgment of the Court was delivered by
\nP.Jaganmohan,  Reddy, J. This Appeal by Special Leave  of
\nthis Court is against the Judgment of a Single Judge of\t the
\nRajas-\n<\/p>\n
838<\/span><\/p>\n
than  High Court affirming the Judgment and decree  of\tthe,
\nDistrict Court with certain variations.\n<\/p>\n
Respondents  1 to 9 filed a suit against the Appellants\t and
\nRespondents 10 and 11 and two others for a declaration\tthat
\nthey have  been carrying on and are entitled to\t carry\ton
\nDarshan, Prakshal and Poojan etc. of the idol of Adeshwarji,
\nthe first Tirthankar in the Temple named after him at Paroli
\nwithout interference according to the tenets observed by the
\nDigambri Sect of the Jain religion.’ The said Temple of Shri
\nAdeshwarji  is said to have been in existence for 200  years
\nwhile, the Respondents aver that the inscriptions on it bear
\nVikram Samvat 1510 (1454 AD).\n<\/p>\n
The   Plaintiffs  further  alleged  that  the\tTemple\t was
\nconstructed and the idol, was consecrated according to\tand
\nby  the followers of the tenets of the Digamber\t sect;\tthat
\nthe Plaintiffs and the other followers of the Digamber Sect
\nhave  been  performing Darshan, Prakshal and Poojan  of\t the
\nsaid  idol according to their tenets every since the  Temple
\nwas  founded;  that  on\t the  23rd  of\tDecember  1949\t the
\nDefendants attempted to convert the said idol into the\tidol
\nof  Swetambri  Sect by putting Chakshus (artificial  eyes  )
\nthereon,  but  were  prevented from doing  so  by  a  strong
\nopposition  of\tthe  followers of the  Digamber\t Sect;\tthat
\nthereafter some temporary arrangements were made between the
\nfollowers  of  the  two Sects who  agreed  to  maintain\t the
\nstatus-quo until a decision of the Civil Court on the rival
\nclaims\tof the parties was given; that in disregard  of\t the
\ntemporary  settlement and without getting the rights in\t the
\nTemple\tadjudicated upon by the Civil Court, the  Defendants
\nmade  arrangements to put Dhwajadand and Kalash on the\tsaid
\nTemple\taccording  to  their tenets,,  and  that  they\talso
\nfurther learnt that the Defendants were intending to enclose
\nthe said idol by putting up doors and locks with the. object
\nof interfering with and obstructing the free exercise by the
\nDigamberies  of their unfettered rights to  perform  Poojan,
\nPrakshal  and worship of the said ideal according  to  their
\ntenets.\t  On  these  allegations  it  was  prayed  that\t the
\nDefendants be restrained by a permanent injunction from\t (i)
\nerecting  the  Dhwajadand,  and\t putting  up  Kalash;\t(ii)
\nenclosing the idols by putting up doors and locks; or in any
\nmanner\taltering the nature and shape and appearance of\t the
\nidols\tinstalled  in  the  said  Temple;  or  directly\t  or
\nindirectly doing any act or thing which may have the  effect
\nof wounding the religious susceptibilities and sentiments of
\nthe  followers\tof the Digamberi-Jain Sect; and\t (iii)\tfrom
\ninterfering  with  the\tfree and unfettered  rights  of\t the
\nPlaintiffs  of performing Darshan.  Prakshal and Poojan\t and
\nother rites according to the tenets of Digamber Jain Sect.\n<\/p>\n
\t\t\t    839<\/span><\/p>\n
The  Defendants did not deny that they,intended to  put\t the
\nNetras’\t but said that they did so because the Netras  which
\nthe idol had even  before the said date having been  damaged
\nand  fallen  out,  new Netras were  put\t up.   They  further
\nclaimed\t that since its existence the Temple  of  Adeshwarji
\nhas  been in the possession of the Defendants who have\tbeen
\nin exclusive management of the Temple and its property; that
\nthe  Plaintiffs never used to do Poojan or Prakshal  in\t the
\nTemple nor had they any Tight thereto, and that when in 1949
\nthere  was  a  dispute\tbetween\t the  parties  a   temporary
\narrangement  was made but the Defendants did not  admit\t any
\nright of Plaintiffs to Poojan.\tIt, was further averred that
\nthe  said-  idol  and the Temple is  in\t all  respects\tJain
\nSwetambri  Sect, that it has been so used and  described  in
\nall  the  historic records from time to time  and  that\t the
\nCivil  Court  had no jurisdiction to  decide  the  religious
\nrights of the parties nor is it a dispute of a civil nature.
\nOn these pleadings issues were framed on 3-12-55 but  subse-
\nquently\t after\tthe evidence in the case  was  recorded\t and
\nhaving\t regard\t  thereto  fresh  issues  were\t framed\t  in
\nsubstitution of the former ones on 4-6-57 but thereafter  no
\nevidence  was led by either party.  The controversy  between
\nthe parties as is evident from these issues was, as to which
\nSect of the Jains the main idol of Adeshwarji belongs, which
\nSect has constructed the upper portion of the idol  referred
\nto  and the nearby portion of the temple; under what  tenets
\nhave  the  followers of the Sects, Digamber  and  Swetamber,
\nperformed  Darshan, Prakshal and Poojan of the idol  of\t the
\ntemple\treferred to and can any Sect change  those  previous
\ntenets-,  whether the Notras (artificial   eyes)  of  the
\nidol, Bhujband and Dhwajadand over the temple existed before
\nand if not, can they be placed and inserted now; and whether
\nthe Temple is in possession and under the management of\t the
\nDefendants alone from the time it came into existence.
\nThe  Civil Judge of Bhilwara decreed the suit of the  Plain-
\ntiffs, against which the Defendants appealed.  The  District
\nJudge, however, allowed the appeal and dismissed the suit on
\nthe  ground that in his opinion no question of any right  to
\nproperty   or\toffice\twas  involved  in  the\t suit’\t and
\nconsequently the plaintiffs suit was dismissed with costs.
\nOn  an appeal from this Judgment the High Court allowed\t the
\nAppeal\tholding\t that  inasmuch as the\tallegations  in\t the
\nplaint\trelate to an assertion of a right of worship and  an
\ninterference  with  that right, a dispute  of  civil  nature
\narises\twhich is, clearly cognizable by a Civil\t Court.\t  In
\nthis view the case was, remanded to the District Judge\tfor
\ndetermining the appeal on merits.  Leave to Appeal was\talso
\nrefused.\n<\/p>\n
840<\/span><\/p>\n
After  remand the District Judge confirmed the Judgment\t and
\ndecree of the Trial Court with certain variations.   Against
\nthis  Judgment\tthe Appellants filed an appeal to  the\tHigh
\nCourt and the Respondents filed cross objections.  The\tHigh
\nCourt affirmed the Judgment of the District Judge except for
\nthat  part  of the decree directing the Appellants  to\tkeep
\nopen  the  doors of the Temple between 8.30  and  9.30\teach
\nmorning\t to  enable  the  Respondents  to  worship   without
\ninterference,\twhich,\thowever,  was  modified\t to   enable
\nRespondents  to\t worship at the Temple between 6 a.m.  to  9
\na.m. every morning, during which time the Temple was not  to
\nbe  locked.   It further directed that if  the\tSwetambaries
\nwanted also to worship during this period without disturbing
\nthe Digamberies they had the liberty to do so.
\nThe  learned  Advocate for the Appellants Shri S.  T.  Desai
\nurged  several\tcontention before us namely;  (i)  the\tHigh
\nCourt  was  in error in not deciding the  ownership  of\t the
\nTemple or of the idol; (ii) that it should have held that  a
\npresumption  of ownership would arise having regard  to\t the
\nconcurrent findings that the Swetamberies were in management
\nand possession of the Temple; (iii) that the reliefs claimed
\nmake it clear that the dispute is not of a civil nature\t for
\nin  any\t view of the matter the Courts were  in\t error\tthat
\nplacing\t of the Dhwajadand and Kalash on the Temple  changes
\nthe  nature of the temple; (iv) that the High  Court  should
\nnot  have accepted the cross appeal fixing 3 hours time\t for
\nthe  worship of the Digamberies Sect; (v) that the  Judgment
\nof  the\t Trial Court is wholly vitiated\t because  the  Trial
\nJudge not having accepted the evidence based his findings on
\nhis own inspection.\n<\/p>\n
Before\tas deal with these contentions, it is  necessary  to
\ndetail the findings of the Courts below
\nThe  Trial Court while decreeing the Plaintiff’s  suit\theld
\nthat though it was not proved as to who built the Temple  of
\nAdeshwarji  initially,\tboth  Digamberies  and\tSwetamberies
\nworshipped  in the said Temple; that the management and\t the
\npossession   of\t  the  Temple  was   with   the\t  Defendants
\nSwetamberies for a long time, that the Swetamberies were not
\nentitled  to  put artificial eyes or to\t put  Dhwajadand  or
\nKalash on the Temple; and that the Defendants were trying to
\ninterfere with the rights of the Plaintiffs’ and were making
\nalterations  to transform the character of the\tTemple.\t  In
\nthis  view the Trial Judge gave a declaration in  favour  of
\nthe Plaintiffs against Defendants in their personal capacity
\nas  well  as representatives of the Jain  Swetamberies\tSect
\nthat  the Plaintiffs or the followers of the Digamberi\tSect
\nhave  been performing Prakshal, Poojan and Darshan  and\t are
\nalso  entitled\tto  do\tso in  future.\t He  also  issued  a
\npermanent  injunction  against the Defendants in  their\t personal
\ncapacity as well as representatives
\n\t\t\t    841<\/span>
\nof  the Jain Swetamberi Sect restraining them from  changing
\nthe  shape  and\t appearance of the idol\t by  putting  Netras
\n(artificial   eyes),  Armlets,\tand  Mukat,  from   erecting
\nDhwajadand  and\t putting Kalash on the\tTemple\tand  putting
\nlocks  on the shutters of the Temple.  The  Appellants\twere
\nfurther\t directed not to restrain the followers of the\tJain
\nDigamber  Sect from performing Darshan, Poojan and  Prakshal
\naccording  to  their tenets.  After  the  remand  Appellants
\nurged before the District Judge the following contentions :
\n(1)That\t the  Temple  belongs to Swetamber  Sect  and  the
\nPlaintiffs  are entitled to have Darshan only of  the  idol,
\notherwise they have got no right to worship it according  to
\ntheir tenets;\n<\/p>\n
(2)  That the idol being Swetamberi, the Defendants are
\nentitledto put artificial eyes in the idol, Dhwajadand and
\nKalash\ton them Temple;\n<\/p>\n
(3)  That the Defendants having been managing the Temple for
\nthe   last  so\tmany  years,  their  management\t cannot\t  be
\ninterfered  with  it for the betterment of the idol,  it  is
\nkept  under lock, it cannot be said to wound the  sentiments
\nand religious feelings of the Plaintiffs.
\nThe District Judge held on the first contention that  though
\nthe Temple is admittedly an old one there is not an iota  of
\nevidence  as to who constructed the Temple originally;\tthat
\nthe  Appellants have been in management- and  possession  of
\nthe  Temple,  which fact was not really\t challenged  by\t the
\nRespondents,  though this by itself does not imply that\t the
\nTemple\tis a Swetamberi Temple.\t It was also contended\tthat
\nthe  Respondents  had no right to worship the idol  but\t can
\nonly  have Darshan.  This contention was also rejected on  a
\nreview\tof  the evidence led by both parties, and  also,  by
\nrelying\t on Exh. 1 which embodied a compromise\tbetween\t the
\ntwo  Sects  under  which the right  of\tthe  Respondents  to
\nworship the idol was specifically admitted.
\nOn the second point urged before him the District Judge held
\nthat the Appellants case that there were eyes already in the
\nidol, but as they got damaged they wanted to replace them is
\nnot  substantiated  by\tthe evidence led on  behalf  of\t the
\nAppellants  themselves.\t It also held that an  attempt\twas
\nmade by, the Swetamberies in 1949 to install the eyes in the
\nidol and that as most of the Appellant’s witnesses  admitted
\nthat  though  Dhwajadand was offered  on  certain  occasions
\nwhich  were retained by the Oswals (Swetamberies) there\t was
\nno Dhwajadand and Kalash on the temple itself.
\nOn the third point it was held that the Appellants, who were
\nin  management and possession of the Temple for the last  so
\nmany-\n<\/p>\n
842<\/span><\/p>\n
years,\thave a right to lock the main Temple, to prevent  it
\nfrom  being  defiled, which does. not in any  way  interfere
\nwith  the right of worship of the Respondents or  any  other
\nperson\ton  their behalf.  This being so’ the  Trial  Courts
\ndecree excepting for restraining the Appellants to lock\t the
\nTemple\twas  affirmed subject to  the  further,direction  as
\nalready\t noticed keeping the Temple open for worship of\t the
\nRespondents  and the Digambaries Sect between 8.30 and\t9.30
\na.m.\n<\/p>\n
When the appeal and cross objections were pending before the
\nHigh  Court the Appellants filed an application under  Order
\n41,  Rule 27 of the Civil Procedure Code for  recording\t the
\nevidence  of  Shri  Satya Prakash  Srivastava,\tDirector  of
\nArchaeology   and   Museum,  Rajasthan\tto   establish\t the
\ndenominational identity of. the idol in the Temple.  It\t was
\nstated in that, application that since he District Judge had
\nremarked  that\tthe  parties  had  not\tproduced  sufficient
\nevidence and it was not possible to come to any\t conclusions
\nregarding  the\tnature\tof  the idol as\t to  whether  it  is
\nSwetamberi or Digamberi, the petitioner had moved the Direc-
\ntor  of Archeology who after a thorough examination came  to
\nthe  conclusion\t that the idol was Swetamberi.\tIn  view  of
\nthis  Report it was prayed that the said Director be  called
\nin  evidence  and be examined.\tIn the\talternative  it\t was
\nprayed\tthat  the case be remanded to the  Trial  Court\t for
\nallowing  the  parties to lead additional evidence  so\tthat
\neffective   adjudication  can  be  made.   The\tHigh   Court
\nhowever,- did not feel the need for any additional evidence
\nas the case could be disposed of on the material on  record.
\nIn  this view it dismissed the application.  Even before  us
\nthe learned Advocate for the Appellant tried to persuade  us
\nto look into that Report and urged that the evidence of\t the
\nDirector was necessary and ought to have been allowed to  be
\nadduced.   In  view of the concurrent findings\tof  all\t the
\nCourts\ton certain material aspects of the case to which  we
\nshall  presently  refer,  it is possible  to  determine\t the
\ncontroversy  between the parties, as such we agree with\t the
\nHigh  Court that no additional evidence is required at\tthis
\nstage, though the parties could have led better evidence  in
\nthe initial stages itself.\n<\/p>\n
It  was further contended on behalf of the  Appellants\tthat
\nthe Respondents suit was not maintainable because it did not
\ninvolve\t a dispute of a Civil nature.  Respondents’  learned
\nAdvocate  though  he first indicated that he would  raise  a
\npreliminary objection to this contention being urged because
\nwhen  the High Court set aside the Judgment of the  District
\nJudge and remanded the case to be decided on merits holding
\nthat  the suit was maintainable as it raised a dispute of  a
\ncivil  nature, the Appellants ought to have appealed to\t the
\nSupreme\t Court.\t  The learned Advocate\tfor  the  Appellants
\nhowever contends that the remand order of the
\n843<\/span>
\nHigh  Court  did not finally dispose of the  rights  of\t the
\nparties\t as  such it is open to him to urge in\tthis  appeal
\nthat  the  suit was not maintainable on the ground  that  it
\ndoes  not raise any dispute of a civil nature.\t Though\t the
\npreliminary  objection was not subsequently pressed even  on
\nthe merits, the learned Advocate for the Appellant is unable
\nto satisfy us that the suit is not of a civil nature.\tFrom
\nthe pleadings and the controversy between the parties it  is
\nclear that the issue is not one which is confined merely  to
\nrites  and  rituals  but one which  effects  the  rights  of
\nworship namely whether the Swetamberies by placing Chakshus,
\nDhwajadand  and\t Kalash\t according to  their  tenets  or  by
\nlocking\t the  temple  could preclude  the  Digamberies\tfrom
\nworshipping in accordance with their tenets.  It is admitted
\nthat the Digamberies will not worship the idol which is\t not
\nNirakar’  or which has Chakshus.  If the Digamberies have  a
\nright\tto  worship  at\t the  temple  the  attempt  of\t the
\nSwetamberies  to  put  Chakshus or to  place  Dhwajadand  or
\nKalash in accordance with their tenets and to claim that the
\nidol  is a Swetamberi idol was to preclude  the\t Digamberies
\nfrom exercising their right to worship at the temple.  These
\nfindings  clearly establish that the  Appellants  interfered
\nwith  the rights of Digamberies to worship with\t respect  to
\nwhich  a civil suit is maintainable under Section 9  of\t the
\nCivil  Procedure Code.\tThis position is  well\testablished.
\nIf authority was needed we may refer only to two cases.\t The
\nPrivy  Council\tin Sir Seth Hukam Chand &  Ors.\t v.  Maharaj
\nBahadur\t Singh\t& Ors.(1), had to deal\twith  the  practices
\nobserved  by Digamberies and Swetamberies on  the  Parasnath
\nHill which is considered to be sacred by. both the Sects but
\nin  respect  of\t which\tthe  Digamberies  objected  to\t the
\ncontinuous  employment\tof  human beings  on  the  Hill\t and
\nagainst building thereon of Dwellings necessarily  involving
\naccording  to their tenets of a sacrilegious  pollution\t and
\ndesecration  of the sacred hill, while the Swetamberies\t had
\nno such belief.\t Sir John Wallace delivering the opinion  of
\nthe  Board  observed  :”These  are  matters  for  the\tJain
\nthemselves and the Civil Courts are only concerned with them
\nin  so far as they are relevant to questions of civil  right
\nsuch  as an alleged interference with the Plaintiffs  rights
\nto  worship on the hill, and in that case the issue must  be
\nnot  whether the acts complained of are in  accordance\twith
\northodoxy or with previous practice, but whether they do  in
\nfact interfere with the plaintiff’s rights of worship”.
\nAgain  this  Court  in Nar Hari Sastri and  Others  v.\tShri
\nBadrinath  Temple  Committee<\/a>  (2 ) was\tconcerned  with\t the
\nrights\tof  the\t Deoprayagi Pandas to  enter  the  Badrinath
\nTemple\talongwith  their Yajmans or clients,  which  it\t was
\nclaimed\t the  Pawal or the Trustee denied  and\tthreaten  to
\nobstruct the said Deoprayagi
\n(1)  60 LA. 313.\n<\/p>\n
(2)  [1952] S.C.R. 849.\n<\/p>\n
844<\/span><\/p>\n
Pandas from entering the precincts of the Temple along\twith
\ntheir  Yajmans or from assisting the pilgrims in the  matter
\nof Darshans etc. inside the Temple.  The Defendant  however,
\nasserted  that it was neither necessary nor  desirable\tthat
\nthe plaintiffs should be allowed to accompany their  Yajmans
\nor clients into the Temple, as he had himself made  adequate
\narrangements for the Darshan and worship of the pilgrims and
\nthat  as the sole Trustee and manager of the Temple  he\t had
\nthe  right  to regulate entry into the Temple so  the  over-
\ncrowding  might be avoided and order maintained\t inside\t it.
\nMukerjea  J, (as he then was) speaking for the Court  dealt
\nwith this contention in the following passage
\n\t      “The  true  position  therefore  is  that\t the
\n\t      Plaintiffs’ right of entering the temple along
\n\t      with  their  Yajmans is not  a  precarious  or
\n\t      permissive  right depending for its  existence
\n\t      upon  the arbitrary discretion of\t the  Temple
\n\t      authorities;  it is a legal right in the\ttrue
\n\t      sense   of  the  expression  but\tit  can\t  be
\n\t      exercised\t subject to the\t restrictions  which
\n\t      the Temple Committee may impose in good  faith
\n\t      for  maintenance of order and  decorum  within
\n\t      the Temple and for ensuring proper performance
\n\t      of  customary  worship.  In our  opinion,\t the
\n\t      Plaintiffs  are entitled to a  declaration  in
\n\t      this form.”\n<\/p>\n
It  is\tclear therefore that a right to worship is  a  civil
\nright,\tinterference with which raises a dispute of a  civil
\nnature\tthough\tas  noticed earlier  dispute  which  are  in
\nrespect of rituals or ceremonies alone cannot be adjudicated
\nby  Civil Courts if they are not essentially connected\twith
\nCivil rights of an individual or a sect on behalf of whom  a
\nsuit  is filed.\t In our view the contention of\tthe  learned
\nAdvocate  for  the Appellant to the maintainability  of\t the
\nsuit is not well founded.\n<\/p>\n
One  other  objection  which the learned  Advocate  for\t the
\nAppellants  urged at the outset is that the findings of\t the
\nTrial  Judge  are vitiated because he did not  rely  on\t the
\nevidence  on  record but decided to which Sect the  idol  in
\ndispute belongs, only on what he found on his inspection  of
\nthe  idol  and the Temple which cannot be  evidence  in\t the
\ncase, without his being subjected to cross-examination.\t  It
\nis  further contended that even if what has been  stated  in
\nthe  Judgment  is what the Trial Judge had observed  in\t his
\ninspection  there  is nothing to show that he had  drawn  up
\ninspection  notes  and\tmade  them part\t of  the  record  as
\nrequired under the law.\t The contention that the Trial Judge
\nhad  given  his\t findings mainly on  the  observations\tmade
\nduring\this  inspection\t in  the first\tplace  is  based  on
\ninsufficient  appreciation of what was really observed\twhen
\ndealing with the question as to
\n845<\/span>
\nwhich Sect the idol in dispute belongs.\t It was observed  in
\nthe  Judgment that most of the witnesses produced were\tnon-
\nJains  and  therefore, their evidence does  not\t carry\tmuch
\nweight\tto establish to which Sect the idol belongs.   After
\nstating\t that  the remaining witnesses of the  parties\thave
\ngiven  statements in favour of their party the\tTrial  Judge
\nsaid that these statements also cannot be much relied  upon.
\nThe  decision  of  his\tcase is based  mostly  on  the\tsite
\ninspection  and the evidence on record.\t Even  while  giving
\nthe findings the Trial Judge remarked that the evidence\t led
\nby the Plaintiff appears to be correct.\t These\tobservations
\nthemselves  show that the evidence on record was an  element
\nin the formulation of the Trial Courts Judgment buttered  by
\nthe  observations  of  the learned  Judge  during  the\tsite
\ninspection.    There  is  therefore,  no  validity  in\t the
\ncontention  that  the finding of the Trial Judge  was  based
\nentirely  on  the  result of his  inspection.\tIt  is\talso
\nevident\t from a narrative given in the Judgment of what\t was
\nnoticed\t during the inspection that the Judge had  inspected
\nthe site on two occasions once on 24-3-1956 and again a year
\nand  two months thereafter on 23-5-1957.  The details  given
\nby  him\t could not have been given if he had not  made\tsome
\ninspection notes.  It would also appear that at the time  of
\nthe  inspection Council for the Plaintiffs-  and  Defendants
\nwere  present because when giving a description of the\tidol
\nof  Neminathji\tin the Swetemberi Jain Temple  when  it\t was
\nnoticed\t that some portion of the idol under the  waist\t and
\nnaval  is  raised and is like a line, the  Council  for\t the
\nPlaintiffs pointed out to him that mark denoted the  wearing
\nof a loin cloth while the Counsel for the Defendants said it
\nwas  the  mark\tof  an Artist.\t Again\tin  respect  of\t the
\nobservation  that on the back-side and at the lower  portion
\nof  the\t navel some portion is raised, the Counsel  for\t the
\nPlaintiffs  had\t pointed out to the loin  cloth,  while\t the
\nCounsel for the Defendants said that it has been engraved by
\nan  Artist  without any sense.\tWe are\tsatisfied  that\t the
\ndescription  given by the learned Judge of the idols in\t the
\nAdeshvarji  Temple and the Temple of the  Swetambaries\twere
\nobservations  made  during an inspection at which  both\t the
\nPlaintiffs’ and Defendants’ Advocates were present and\tthat
\nthere must have been notes also in respect of the inspection
\nmade  on both the occasions.  The Appellants had at no\ttime
\nmade a grievance either to the District Judge or to the High
\nCourt  or even before this Court except during the stage  of
\narguments  that there were no inspection notes nor that\t the
\ninspection  was\t made by the Judge behind the  back  of\t the
\nparties.  if  these objections had been raised\tearlier\t the
\nRespondents  would have had an opportunity of  showing\tthat
\nthere  were inspection notes.  The Judgment in our  view  is
\nnot  based solely on the result of personal inspection\tmade
\nby the Trial Judge, which inspection was for the purposes of
\nunderstanding the evidence in the case and has been so\tused
\nby the Trial Judge.  We must,
\n846<\/span>
\ntherefore, reject the contention of the learned Advocate for
\nthe  Appellants that the finding in respect of the  idol  is
\nvitiated.  In this view it is not necessary to deal with any
\nof the decisions referred to before us.\n<\/p>\n
It was contended by Shri Desai that unless the ownership  of
\nthe  Temple is established or that the idol belongs  to\t the
\nDigamberies  no injunction can be given nor  the  Plaintiffs
\npermitted  to worship.\tIt is argued that in the plaint\t the
\nRespondents wavered that the idol is a Digamberi idol and if
\nthey  have  failed to prove it then their right\t to  worship
\nfails.\t At  any rate the argument proceeds  that  the\tHigh
\nCourt  was  in error in not deciding the  ownership  of\t the
\nTemple or of the idol.\tWe have earlier indicated the plaint
\naverments  in which there is no mention of the ownership  of
\nthe Temple or of the idol but that paragraphs 2 and 3 of the
\nplaint merely gave a description of the Temple and the\tidol
\nwhen  it  is  averred  that the\t idol  was  constructed\t and
\nconsecrated  according\tto  and\t by  the  followers  of\t the
\nDigamberi  Sect\t and  that  the\t Plaintiffs  and  the  other
\nfollowers  of  the  Digamberi  sect  have  been\t  performing
\nDarshan,  Prakshal and Poojan of the said deity in the\tsaid
\nTemple\tfor a considerable number of years past\t and  really
\never  since  the Temple was founded.   There  is  therefore,
\nforce in the contention of Shri Gupte, learned Advocate\t for
\nthe  Respondents  that\thaving\tregard\tto  the\t  concurrent
\nfindings  of  the Courts below that the idol  was Nirakar’
\n(naked) that there were no Chakshus, no Mukat, no Armlet, no
\nDhwajadand  or\tno  Kalash, would show\tthat  the  idol\t was
\nconsecrated  by\t the Digamberies.  It was also held  as\t had
\nalready been noticed that though- it is not possible to\t say
\nwhen the Temple was constructed and the idol consecrated  it
\nwas an ancient Temple and that both the Digamberies and\t the
\nSwetamberies worship the idol.\tIt is not denied that  while
\nthe Digamberies will not worship an idol which has  Chakshus
\nor  which  has\tclothes or  Mukat(  the\t Swetamberies  would
\nworship\t a Digamberi idol without these and hence the  right
\nto  worship a Digamberi idol by both the sects\tis  possible
\nand  indeed  has been so held by all the Courts.   Even\t the
\nDefendants’ witnesses substantiate these findings.  We would
\nrefer to only two of these witnesses.  Shri Suwa Lal D.W.  4
\neven  though he says that the Temple belonged to the  Oswals
\nin which he and his father has been performing Sewa for\t the
\nlast  30 or 35 years on behalf of the Oswals  (Swetamberies)
\nadmitted  that since he attained the age of  discretion\t and
\nupto the time of giving evidence he had never seen Adinathji
\nwearing clothes, never saw the idol with eyes and had  never
\nseen  Dhwajadand or Kalash on the Temple and does  not\tknow
\nwhether\t  the\tidol   belongs\tto   Oswals   or   Saravagis
\n(Digamberies).\t D.W. 3-Shri Pokhar a barber of Oswals\talso
\nsupports this witness.\tThat the Digamberies had a right  to
\nworship is also borne out by Ex. 1 dated
\n847<\/span>
\n23-12-49 which was a compromise entered into between Swetam-
\nberies\tand  Digamberies at the time when  the\tSwetamberies
\nattempted to put Chakshus in the idol.\tNo doubt this was an
\ninterim\t arrangement  till  the decision of  a\tCivil  Court
\nadjudicating the respective rights, but there was never\t any
\nquestion of either Sect not having the right to worship\t the
\nidol.\t The   dispute\thad  arisen  only  as\tto   whether
\nSwetamberies can fix Chakshus in the idol.  Exh. 1 states as
\nfollows:\n<\/p>\n
\t      “We Panchas give this award that a dispute had
\n\t      arisen\tbetween\t  the\t Swetamberies\t and
\n\t      Digamberies  as  Swetamberies  recently  fixed
\n\t      eyes  on the idol.  This new thing should\t not
\n\t      continue.\t  These\t eyes  should  be   removed.
\n\t      Digamberies have a right to perform Poojan  so
\n\t      they can mark saffron Tiki’ and have  Darshan
\n\t      and  come back.  Digambries will not  performs
\n\t      Prakshal, Poojan.\t Swetamberies will  continue
\n\t      incurring\t expenses as usual.  The idol  shall
\n\t      remain backed (Nirakar)”.\n<\/p><\/blockquote>\n
The representatives of both Sects have signed this award, as
\na  temporary  measure  agreeable  to  both  the\t Sects,\t who
\nindicated  that\t they would press their rights\tin  a  Civil
\nCourt.\t Once  the right of worship of\tthe  Digamberies  is
\nestablished there is little doubt that they are entitled  to
\nthe  injunction\t sought for by them against  the  Defendants
\nAppellants  from  preventing them from\tworshiping  or\tfrom
\ninterfering with that right by placing Chakshus in the idol,
\nDhwajadand, Kalash on the Temple.  In view of these findings
\nthe  further question that when once it has been found\tthat
\nthe Swetamberies have the right of management and possession
\nof the Temple there is a presumption of ownership under Sec.
\n110  of the Evidence Act does not arise nor is it  relevant.
\nIt  is no doubt contended by the Respondents  Advocate\tthat
\nwhen  consecration of an idol takes place the ownerships  of
\nthe  Temple is in the idol and therefore, the  question,  of
\npresumption  under  Sec. 110 does not arise.   It  is  again
\ncontended  by Shri Desai that the moment it is held that  it
\nis  not possible to, come to a conclusion as to\t which\tSect
\nthe  idol belongs, as has been held by the Court below,\t the
\nRespondents  cannot be allowed to object to  the  Appellants
\nworshipping  the  idol\taccording  to  their  tenets.\tThis
\ncontention,  however, in our view ignores the rights of\t the
\nDigamberies to worship in accordance with their tenets.\t  If
\nthe contention of the learned Advocate for the Appellants is
\naccepted  it will be tantamount to holding that\t Digamberies
\nhave no right to worship as there would denomination  change
\nin  the idol if the Swetamberies are held to have the  right
\nto worship it according to their tenets by placing  Chakshus
\nin  the idol or by erecting their Dhwajadand or Kalash\tover
\nthe Temple.\n<\/p>\n
848<\/span><\/p>\n
Lastly\tit  is urged that the High Court ought not  to\thave
\nentertained  the cross objection by extending the  time\t for
\nworship from 1 hour to 3 hours.\t In our view the  directions
\nof  the High Court are not unreasonable nor do they  in\t any
\nway  affect the right of the Respondents to worship  because
\nthe  directions clearly enable the Swetamberies who wish  to
\nworship the deity within that period without disturbing\t the
\nDigamberies  to be at liberty to do so and likewise it\twill
\nbe  open  to  Digamberies to go and worship  in\t the  temple
\nduring\tthe  period it is kept open.  In view of  the  acute
\ncontroversy  between these 2 sects and their  reluctance  to
\narrive at an amicable settlement the directions given by the
\nHigh  Court are manifestly reasonable just and\tproper.\t  In
\nthis view the appeal fails and is dismissed with costs.\n<\/p>\n
R.K.P.S.\t      Appeal dismissed.\n849<\/span>\n\n\n\n<\/pre>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India Ugamsingh & Mishrimal vs Kesrimal & Ors on 26 November, 1970 Equivalent citations: 1971 AIR 2540, 1971 SCR (2) 836 Author: P J Reddy Bench: Reddy, P. Jaganmohan PETITIONER: UGAMSINGH & MISHRIMAL Vs. RESPONDENT: KESRIMAL & ORS, DATE OF JUDGMENT: 26\/11\/1970 BENCH: REDDY, P. JAGANMOHAN BENCH: REDDY, P. JAGANMOHAN SHELAT, J.M. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-22261","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nUgamsingh & Mishrimal vs Kesrimal & Ors on 26 November, 1970 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/ugamsingh-mishrimal-vs-kesrimal-ors-on-26-november-1970\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"Ugamsingh & Mishrimal vs Kesrimal & Ors on 26 November, 1970 - 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