(A.K. Sikri and N.V. Ramana, JJ.)
State Government of Madhya Pradesh and Others ________ Appellant(s);
v.
Narsingh Mandir, Chikhalda and Others _____________ Respondent(s).
Civil Appeal No. 8554/2015, decided on October 6, 2016
The Order of the court was delivered by
Order
1. This appeal is preferred against the judgment dated 13.10.2011 passed by the High Court of Madhya Pradesh, Indore Bench in Shri Narsingh Mandir v. State of M.P.1 which was preferred by the respondents herein. By the said judgment respondent’s appeal was allowed reversing the judgment and the decree passed by the two courts below.
2. When the matter was called out nobody appeared on behalf of the appellants. Instead of dismissing the matter in default or for non-prosecution, we deemed it proper to go through the judgment and the material available on record and decide the same on merits with the assistance of learned counsel for the respondents.
3. As can be seen from the judgment1 of the High Court, the respondents herein had filed a suit for declaration that they have right to manage the disputed temple which is a private property and for injunction restraining the appellants herein not to interfere with the said suit property.
4. Insofar as temple in question is concerned, it is known as “Shri Narsingh Mandir” and is situated at land survey No. 209 area 2.481 hectare in village chikkhalda, Tehsil Kukshi District Dhar, Madhya Pradesh.
5. The case set out in the plaint by the respondents-plaintiffs was that the aforesaid land was owned by late Amritlal and Bhai Shambhulal, both sons of Ganpatlal Mahajan. The disputed temple thereupon was constructed by them and was their private temple. It was, therefore, for quite some time the aforesaid persons were offering ‘pooja’ in the said temple. Family of Amritlal migrated to Khetiya in the year 1963. In order to maintain the said temple and to ensure that ‘pooja’ is performed there regularly, Amritlal and Bhai Shambulal, the two brothers, gave the temple to the Panchas of Ahir Community. For bearing the expenses of the temple for ‘Pooja’, the land was gifted to the Pujaris of the temple by executing a registered gift-deed dated 20.6.1963 with an intention that from the earnings of the agricultural produce of the land, the daily expenses of the temple would be maintained. The Panchas gifted the management of the temple to Babulal, S/o Gangadhar Patel and Narayan Brahmin, who was the father of the Sadashiv (the first plaintiff). The possession of the suit land was also given to these two persons by the gift-deed. They were given authority to appoint Panchas of the village Chikkhalda to carry out the temple affairs and to appoint pujaris. The Panchas of the village appointed plaintiff Nos. 2 to 5 to carry out the affairs of the temple alongwith Sadashiv, the first plaintiff.
6. While the plaintiffs were carrying out the affairs of the temple and conducting ‘pooja’ in the said temple, they received threats from the Tehsildar and Patwari of the area stating that the Manager of the suit land was the Collector and they were also told that it was decided to auction the said land and the entire management would be taken over by the Government. Faced with these threats, a suit was filed by the respondents for declaration and injunction, as noticed above. In the written statement filed by the defendants-appellants, the defence taken was that vide order dated 12.4.1974 (Order No. 745/3693/A/73), name of the Collector had been endorsed in the revenue records. It was further stated in the written statement that if plaintiff Nos. 2 to 5 were claiming their right to possess the said temple and carry out the affairs of the temple, it was required by them to adopt the procedure in getting their names in the revenue records.
7. The Trial Court after recording the evidence of the parties and hearing the arguments dismissed the suit holding that the temple was the public property and, therefore, the name of the Collector was endorsed in the revenue records. First appeal filed by the respondents under Section 96 of the Code of Civil Procedure, 1908 was dismissed by the learned Additional District Judge affirming the findings of the Trial Court. Being aggrieved, the respondents approached the High Court by way of filing the second appeal. This appeal was admitted1 on the following two substantial questions of law:—
“1. Whether the finding of the Court below that the temple in question is not a private temple but a public temple, is perverse unsupportable by the evidence on record?
2. Whether in absence of giving any notice under Section 115 of the M.P. Land Revenue Code, 1959 to the plaintiffs and without following the procedure prescribed under this Section, any correction can be made in the revenue record by any of the order of the State Government? If no, what would be the effect of endorsing the name of Collector, Dhar in revenue record as Prabhandhak (Manager) of the temple and Bhoomiswami of the disputed land?”
8. The High Court has answered both the questions in favour of the respondents thereby allowing the appeal.
9. Second question was taken first for discussion by the High Court. Referring to Section 115 of the M.P. Land Revenue Code, 1959 (Revenue Code), the High Court came to the conclusion that in the revenue record, correction/change could not be carried out by the State Government ascertaining the name of the Collector without following the procedure prescribed under Section 115 of the said revenue code. This section reads as under:—
“115. Correction of wrong entry in Khasra and any other land records by superior officers-if any Tahsildar finds that a wrong or incorrect entry has been made in the land records prepared under Section 114 by an officer subordinate to him, he shall direct necessary changes to be made therein in red ink after making such enquiry from the person concerned as he may deem fit after due written notice.”
10. The High Court interpreted the words “such enquiry” occurring in the aforesaid code to mean that it was incumbent upon the Tahsildar to make an enquiry, before the existing entry in the revenue record could be changed. It, thus, held that in the absence of any enquiry made in this behalf the action of the Tahsildar in changing the revenue record and in inserting the name of the Collector as a Manager in respect of the disputed temple as Prabandhak and as well as Swami Bhoomi was contrary to the aforesaid provisions of the code and also in violation of natural justice.
11. Insofar as first question of law is concerned, the High Court noticed that even the Trial Court had arrived at a conclusion, on the basis of evidence placed before it, that the disputed temple and land was a private temple of Amrit Lal. Notwithstanding the same, it was held to be a public property by executing the gift-deed (Ex.P/3) vide which the temple in question was gifted by the original owners (two brothers) to Babu lal and Narayan Brahmin. To ascertain as to whether this gift deed was rightly interpreted by the Courts below, the High Court went through the said document and held that from the description of the property that was gifted, the description of temple did not find place. It held that insofar as the said gift deed is concerned, only agricultural land was described therein. The High Court, therefore, reversed the finding of the Trial Court on this question as well.
12. From the grounds taken in the appeal, we find that the entire thrust of the appellants was on the power of the High Court under Section 100 of the Code of Civil Procedure. It is sought to be argued that finding of facts arrived at by the Trial Court and the first Appellate Court could not have been reversed by the High Court in the Second Appeal which is permissible only on substantial question of law. Number of judgments in support of this plea are referred to in the appeal.
13. There cannot be any quarrel about this proposition of law. However, from the description of the questions of law as well as the manner in which the said two substantial questions of law were framed and decided by the High Court, we do not find that High Court has tinkered with any of the findings of the case. As far as question of law No. 2 is concerned, it was purely a legal question and while answering the same, the High Court decided that correction made in the revenue record was contrary to the provisions contained in the procedure that is prescribed in Section 45 of the M.P. Land Revenue Code, 1959. Insofar as first question of law is concerned, again the High Court has not disturbed the finding of facts arrived at by the lower Courts and noted above. The High Court has taken note of such findings recorded by the Trial Court itself while addressing the history of ownership into the said land and based there upon it was reached the conclusion in law holding that the disputed land was owned by the private persons and it was a private temple of Amritlal.
14. The judgment of the Courts below is reversed on the interpretation of gift-deed, holding that the relevant clauses of gift-deed were misconstrued by the Trial Court. This exercise, again, cannot be said to be an exercise deciding the question of fact. Since the gift deed is not on record, we are not in a position to state as to whether the High Court has rightly interpreted the said gift deed.
15. Be that as it may, the appeal of the respondents warranted to be succeeded on the substantial question of law No. 2 itself, inasmuch as, the entry in the revenue record could not have been changed by the Tahsildar without holding a proper enquiry and giving an opportunity to the affected persons, namely respondents herein, in this regard. Therefore, the judgment1 of the High Court can be sustained on that ground alone. Needless to mention, it will always be open to the concerned authority to follow the procedure under Section 115 of the M.P. Land Revenue Code, 1959 to take further action, if any.
16. The appeal is dismissed with the aforesaid observations.
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1 Second Appeal No. 412 of 1998, order dated 13-10-2011 (MP)
