# MISHRIMAL v. KESRI,MAL (laganmoha~ Reddy, I.)

- **Citation:** [1971] 2 S.C.R. 836
- **Court:** Supreme Court of India
- **Decided:** 1970-11-26
- **Case number:** Civil Appeal No. 158 of 1967
- **Bench:** J. M. Shelat, C. A. Vaidialingam, P. J~Ganmohan Reddy
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/mishrimal-v-kesri-mal-laganmoha-reddy-i-5129
- **Pages:** 13

## Headnote

Worship-Right of-If of a civil nature for which suit maintldnab/eIdol o; Adeshwarji in temple at Paroli-If idol of Digambri or Swetambri
Jain set-'~ idol.
Respondents l to 9 filed a suit against the Appellants and some of the
-Other respondents. for a declaration that they had been carrying on, and
were entitled to the worship without interfer~nce df the idol of Adeshwarji
in the temple n•med after him at Pa.roli according to tOO tenefs observed
by the Digambri Sect of the Jain religion. They forther alleged : that the
temple was constructed and th,e 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 tne idol of the Swetarnbri 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 temparary settlement was reached between the two sects
while - the
rights in the temple were to be adjudicated upon by a Civil Court, the
defenda~ts 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 Digambo·is' right
to worship the idol. It was therefore prayed that the defendants be restrained by a permanent injunction from altering the nature :md shape and
appearance o'f 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 arid contended that the idol
and the temp.le 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 al.so 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
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him, based his findings on his own inspection. It was also contended that
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unless the ownership of the temple was established or that the idol belonged to the f)igambri Sect, no injunction could be given nor could the respondents be ;;ermitted 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 wdrship also failed.
HELD : Dismissing the appeal,
(i) From the pleadings and the controyersy 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 SwetamH
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MISHRIMAL v. KESRI,MAL (laganmoha~ Reddy, I.)
837
beries to put Chakshus or to place Dhivajadand or Kalash in accordance
with : 'leir 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 BJ
Sir Seth Hakam Chand & Ors. vs. Mahara; Bahadur ·Singh & Ors.,
60 I.A. 313 and Nar Harl Sastri and Ors. vs. Shri Badrinath Ter.1ple Com·
mi1Yee, (1952) S.C.R. 849, referred to.
(ii) While givilng 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 formu- ·
lation of the Trial Court's judgment buttresed by the obseriations of
the learned Judge· during the site inspection. It was clear that ·the description given by the learn

## Text

8:l6
UGA!V.SINGH & MISHRJMAL
v;
KESRIMAL &' ORS,
· November 26, 1970
[J. M. SHELAT, C. A. VAIDIALINGAM AND P. J~GANMOHAN
REDDY, JJ,j
Worship-Right of-If of a civil nature for which suit maintldnab/eIdol o; Adeshwarji in temple at Paroli-If idol of Digambri or Swetambri
Jain set-'~ idol.
Respondents l to 9 filed a suit against the Appellants and some of the
-Other respondents. for a declaration that they had been carrying on, and
were entitled to the worship without interfer~nce df the idol of Adeshwarji
in the temple n•med after him at Pa.roli according to tOO tenefs observed
by the Digambri Sect of the Jain religion. They forther alleged : that the
temple was constructed and th,e 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 tne idol of the Swetarnbri 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 temparary settlement was reached between the two sects
while - the
rights in the temple were to be adjudicated upon by a Civil Court, the
defenda~ts 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 Digambo·is' right
to worship the idol. It was therefore prayed that the defendants be restrained by a permanent injunction from altering the nature :md shape and
appearance o'f 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 arid contended that the idol
and the temp.le 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 al.so 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
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D
E ,,
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him, based his findings on his own inspection. It was also contended that
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unless the ownership of the temple was established or that the idol belonged to the f)igambri Sect, no injunction could be given nor could the respondents be ;;ermitted 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 wdrship also failed.
HELD : Dismissing the appeal,
(i) From the pleadings and the controyersy 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 SwetamH
A
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c
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MISHRIMAL v. KESRI,MAL (laganmoha~ Reddy, I.)
837
beries to put Chakshus or to place Dhivajadand or Kalash in accordance
with : 'leir 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 BJ
Sir Seth Hakam Chand & Ors. vs. Mahara; Bahadur ·Singh & Ors.,
60 I.A. 313 and Nar Harl Sastri and Ors. vs. Shri Badrinath Ter.1ple Com·
mi1Yee, (1952) S.C.R. 849, referred to.
(ii) While givilng 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 formu- ·
lation of the Trial Court's judgment buttresed by the obseriations 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 tlie Temple of the Swetemberies were observations made during an
inspection at which both the Plaintiffs and Defendants Advocates were
pre1ent 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 · CJ
(iii) The concurrent findings of the' Courts below that the idol was
'Nirkar' .(naked), that there were no Chakshus, no Mukai, 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 Digambcries 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 Mukai, the Swetamberies woul4
worship a Digambe'ri idol without these and hence the right to worship
a Digamberi idol by both the sects is possible and it has been rightly
E .so held by all the courts. [846 El
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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 worshipping or ·from inferfering with that
right by placing Chakshus in the idol, D)jwajadand, 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-Bl
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 158 of
1967.
Appeal by special leave from the judgmQnt 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, /. B. Dadachanji and Pukhraj
Singh, for the appellant.
S. V. Gupte, K. K. lain and H. K. Puri, for respondents Nos.
1 to 9.
H
Tht Judgment of the Court was delivered by
P. Jaganmoban Reddy, J. This Appeal by Special Leave ot
this Court is against the Judgment of a Single Judge of the Rajas-
s 38
SUPREME COURT REPORTS
[1971] 2 S.C.R.
than High Court affirming the Judgment and decree of the District
A
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 exP.;tence for 200 years while the Respon-
.den1s 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,
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Prakshal and Poojan of the sa;d idol according to their tenets
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eversince 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 ~ome tern·
porary arrangements were made between the followers of the two
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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 arrangemenis 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
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said idol b) 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
oj' the said ido 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
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Kalash; (ii) enclosing the idols by putting up doors and locks; or
in any m~'nner 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
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and unfettered rights of the Plaintiffs of performing Darshan,
Prakshal and Poojan and other rites according to the ter..ets of
D!gamber Jain Sect.
..
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MISHRIMAL v. KESRIMAL (Jaganmoharl. Reddy, J.)
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 clai'lled 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
right 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 avered 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 historical records from tiine to time and that the Civil Court
had no jurisdU:tion 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·
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quently after the evidence in the case was r~orded 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 J ains 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
Ill
what tenets have the followers of the SectS,
Digamber and
Swetamber, performed Darshan, Prakshal and Poojan of the idol
or the tempi!! referred to and can any Sect change those previous
.tenets; whether the Netras (artificial eyes) of the idol, Bhujband
llD4 Dhwajadand over the temple existed before and if not, can
I.hey be placed and inserted now; and whether the Temple is
in
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1S'S91S5ioli. and. under t~e ma~agement of the Defendants alone
fi:om the time 1t cam•mto extstence.
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
6
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 trom 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
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with that right, a dispute of civil nature. arises which is clearly
ci>gnizable by a Civil O>urt. I.n. this view the case w~ remanded
to the District Judge for deterrnmmg the appeal on ments.
Leave
to Appeal was also refused.
840
SUPREME COURT REPORTS
[1971] 2 S.C.R.
After remand the District Judge confirmed the Judgment and A
decree of the Trial Court with certain variations.
Against this
Judgment the Appellants filed ari 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
c
that the Swetamberies were in management and possession of the
I>
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
ori 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 Jllaintiff'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
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the Temple was with the Defendants Swetamberie;:. for a long
time, that the Swetamberies were not entitled to ·put artificial eyes
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or to put Dhwajadand or Kalash on the Temple; and that the
Defendants were tryirig to interfere with the rights of. the Plaintiffs' and· were making alterations to transform the character of
the Temple.
In !his 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
H
to do so in future.
He also issued a permanent injunction against
the Defendants in their personal capacicy as well as representative<
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MISHRIMAL v. KESRIMAL (Jaganmohan Reddy, /.)
84r
of the Jain Swetamberi Sect restraining them from changing theshape and appearance of the idol by putting Netras
( artifiical
eyes), Armlets, and Mukat, from erecting Dhwajadand and putting Kalash on the Temple and putting Joe~ on the shutters ~f
the Temple.
The Appellants were further directed not to restram
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 t!te
Plaintiffs are entitled to have Darshan only of the idol, otherw1Sethey have got no right to worship it according to their tenets;
C
(2) That the idol being Swetamberi, the Defendants are
entitled to put artificial eyes in the idol, Dhwajadand and Kalash
on them Temple;
( 3) That the Defendants having been managing the Templefor the last so many years, their management cannot be inter--
ferred with it for the betterment of the idol, itis kept under lock,
D
it cannot be said to wound the sentiments and religious feelings of
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,
E
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 conlention was also rejected on a review of the evidence led by both,
parties, and also by relying on Exh. 1 which embodied a comF
promise between the two Sects under which the right of the Respondents to worship the idol was specifically admitted.
On the second point urged b_efore· him the Dis~ct 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 subs--
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tantiated by the evidence led on behalf of the Appellants themselves.
It also held that an attempt was made by the Swetamberies in 1949 to instal the eyes in the idol and that as most of the
Appellant's witnesses admitted that though
Dhwajadand was
offered on ~ertain occasions which were retained by the Oswals
(Swetambones) there was no Dhwajadand and Kalash on the
H
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
SUPREME COURT REPORTS
[1971] 2 S.C.R.
years, have a right to lock the main Temple, to previmt it froni
A
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 for keeping the Temple
·open for worship of the Respondents and the Digambaries Sect
B
between 8.30 and 9.30 a.m.
When the appeal and cross qbjections were pending before
the High Court the Appellants filed an application under Order
41, Rule 27 of the Civil Procedure Code for recording the evi-
• dence of Shri Satya Prakash Srivastava, Director of Archaeolo~y C
.and Museum, Rajasthan to establish the denominational identity
-0f the idol in the Temple.
It was stated in that application that
since he District Judge had remarked that ilie parties had not
produced sufficient evidence and it was not possible to come to ·
any conclusiolll! 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 D
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 allowmg the parties to lead addi·
tional evidence so that effective adjudication can be made. The
High Court however, did. not feel the need for
P.:1y additional
evidence as the case could be disposed of on the material . on E
re~ord. In this view it dismissed the application.
Evon 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
l1
possible to determine the controversy between the parties, as suc"h
we agree with the High Court that no additional evidence is re-
.quired 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
G
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 maintain·
H
able as it raised a dispute of a civil nature, the Appellants ought
to have appealed tp the Supreme Court. The leal"!led Advocate
.for the Appellants however contends that the ret1J.and order of the
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MISHRIMAL v. KESRIMAL (Jaganmohan. Reddy, J.)
843
High Court did not finally dispose of the riga.ts 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 clispute of
a civil nature. Though the preliminary objection was not subsequently ·pr~sed 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 Swetambyri idol was to preclude the
Digamberies from exercising their right to worship at the temple.
D 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
E .to deal with the practices observed _by Digamberies and Swetam·
beries 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 Hifl and
against building thereon of Dwellings necessarily involving accord·
ing to their tenets of a sacrilegious pollution and desecration of
the sacred hill, while the Swetambenes had no such belief. Sir
John Wallace delivering the opinion of the Board observed :-
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"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 Badri·
nath Temple Committee('} 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
(I) 60 I.A. 313.
(2) [1952] S.C.R. 849.
844
SUPREME COURT REPORTS
[1971] 2 s.c.R:
Pandas from entering the precincts of the Temple along with A
their Y ajm!!_ns or from assisting 'the pilgrims in the matter of
9 Darshans etc. inside the Temple.
The Defendant however,
asserted that it was neither necessary nor desirable that the plain-
~iffs should be allowed to accompany their Y ajmans or clients into
the Temple, as ~e had himself made adequate arrangements for
· the Darshan and worship of the pilgrims and that as · the sole
B:
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'
C
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
D
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 civll 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 Advoca\e' 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 !Ilainly 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
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MISHRIMAL v. KESRIMAL (Jaganmohan Reddy, J.)
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 sappears to be correct.
These observations themselves
show that the evidence on record was an element in the formulation of the Trial Courts Judgment butteresd by the obsevations 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
Councel 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 SOJll.e portion
of the idol under the waist and naval is raised and is like a line,
the Counce! for the Plaintiffs pointed out to him that that mark
denoted the wearing of a loin clotl;i 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 aind at the lower portion
of the navel some portion is raised, the Counsel for the Plaintiffs
had pointed out to the loin cloth, while tlie 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 th2t there must have been notes also in respect of the
inspection made on both the occasions.
The Appellants had at
no time made a grievan¢e 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 Respondnets 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 per.sonal 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
SUPREME COURT REPORTS
[1971] 2 S.C.R.
therefore, reject the contention of the learned Advocate for the A
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
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worship. It is argued that in the plaint the Respondents avered
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
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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 avered,, that the idol was constrncted and consecrat·
ed 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
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said deity in the said Temple for a considerable number of years
·past and really eversince 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 Mukai, no Armlet, no Dhwajadand
or no Kalash, would show that the idol was consecrated by the E
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 Tample and that b:>th
. 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 SwetamF
beries 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
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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 Adina th ji 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
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to Oswals or Saravagis (Dfgamberies).
D.W. 3-Shri Fokhar
a barber of Oswals also supports this witness.
That the Digamberies had a right to worship is also borne out by Ex. 1
dat~
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MISHRIMAI. v. KESRIMAL (Jaganmohan Reddy, /.)
847
23-12-49 which was a compromise entered into between Swetam-·
beries and Digamberies at the time when the Swetamberiesattempted 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 perfonn Poojan
so they can mark saffron 'Tiki' and have Darshan and
come back.
Digambries will not perfonns Prakshal,
Poojan. Swetamberies will continue incurring expenses
as usual.
The idol shall remain nacked (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
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against the Defendants Appellants from prevening them from
worshipping or from interferring 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 ha8 .
been found that the Swetamberies have the right of management
and possession of the Temple there is a presumption of owner-·
ship under Sec. 110 of the Evidence Act does not arise nor is it
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relevant.
It is no doubt contended by the Respondents Advocate that when consecration of an idol takes place the ownership
of the Temple is in the idol and therefore, the question of presum·
tion 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
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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 inaccordance 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 denominal change
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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 Dhwajadancfor Kalash over the Temple.
848
SUPREME COURT REPORTS
[l 971) 2 S.C.R.
Lastly it is urged that the High Court ought not . to have
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·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
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.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 accute controversy between these 2 sects and their reluctence
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.
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. R.K:P.S.
Appeal dismissed .