LexUGAMSINGH & MISHRIMAL versus KESRIMAL & ORS
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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/e- Idol 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 attem- pted 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 res- trained 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 A B c D E ,, F him, based his findings on his own inspection. It was also contended that G unless the ownership of the temple was established or that the idol belong- ed to the f)igambri Sect, no injunction could be given nor could the respon- dents 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 Digam- bries have a right to worship at the temple, the attempt of the Swetam- H A B c D 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 des- cription 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 inspec- tion made on · bot
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