A custom is a long drawn, ancient, uniform, definite
continuous and compulsory usage or practice which has been
accepted followed and recognised by the members of
community or religion interested in it. The custom has the
effect of modifying the general personal law. But it does not
override the statutory law unless the custom is expressly
saved by it. No custom is valid if it is illegal, immoral,
unreasonable or opposed to the public policy. The custom
being in derogation of the general law, is required to be
construed strictly. The party relying upon the custom is
obliged to establish it by way of clear and unambiguous
evidence. The evidence adduced on behalf of the party
concerned, must prove the alleged custom and the proof must
not be unsatisfactory or conflicting. A custom cannot be
extended by analogy or logical process and it also cannot be
established by a priori method. The decision of the Apex Court
in the case of Laximibai v. Bhagwantbuva [(2013) 4 SCC 97]
throws light on the aforesaid proposition. A claim for
customary or traditional right in rem to perform the religious
rites and rituals to the exclusion of any interference by others,
as has been claimed in the present suit, carries with it a heavy
burden of proof.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 937 OF 2007
Yeshwant Balwant Badave
VERSUS.
Shri. Yogi Rajendra Shivacharya Guru
Coram : Ravi K. Deshpande, J.
Date of pronouncement of judgment: July 17, 2014.
Citation;2015(2) MHLJ291
1. In Regular Civil Suit No. 167 of 1985 for grant of
injunction restraining the Defendant Nos.1 to 14 perpetually
from obstructing the exclusive rights of the Plaintiffs of
performing puja, archa, dahibhat, abhishek and other pujas etc
before the deity Shri. Shambu Mahadeo, Amruteshwar and the
other deities of Shikhar Shingnapur Devsthan as priest and to
take income of the same and claiming permanent injunction
restraining the Defendants from using the said rights
unauthorisedly, the learned Civil Judge, Junior Division,
Dahiwadi has passed a decree and operative portion of the
order is reproduced below :
“(1) The suit of the Plaintiffs is hereby decreed
with costs.
(2) The Defendant Nos.1 to 11 and 14 are
hereby restrained permanently from causing any kind of
obstruction to the plaintiff's exclusive right of performing
puja, archa, dahibhat pja, abhishek and other pujas etc.
before deities Shri Shambhu Mahadeo, Amrutheshwar
and other deities of Shikhar Shingnapur temple, Tal. Man
to receive the income of the same as priests.
(3) There is no any order as against the
Defendant Nos. 12 and 13 since they are dead, so also as
against the Defendant Nos. 15 to 17, as no any relief has
been claimed against them.”
2. In Regular Civil Appeal No.43 of 1994, the learned
Ad-hoc District Judge-4, Satara has by its judgment and order
dated 1st September 2007 reversed the decision of the trial
Court by allowing the appeal and the suit is dismissed. Hence,
this second appeal by the original Plaintiffs.
3. The Appellants are the original Plaintiffs and
belong to Badave community. The original Defendant Nos.12
and 13 have died whereas no relief was claimed against the
Defendant Nos.15 to 17. It is not in dispute that the Defendant
No.17 Chhatrapati Udayan Raje Bhosale is the owner of the
suit property and has supported the claim of the Plaintiffs. The
Defendant Nos.1 to 11 and 14 belong to Lingayat community
and have seriously contested the claim of the Plaintiffs.
Hence, they shall be referred to hereinafter as “the contesting
defendants”.
4. The dispute in this appeal is between the two
communities of Hindus, namely, the Badaves who are the
Plaintiffs and the contesting Defendants who are the
Lingayats. I have heard Mr. V. A Thorat, the learned Senior
Advocate assisted by Smt. S. S. Gokhale appearing for the
Appellants and Mr. V. B. Naik, the learned Senior Advocate
assisted by Mr. R. S. Alange appearing for the contesting
Defendants. Both the learned Senior Advocates have
repeatedly urged and it is also the finding recorded by both the
Courts below that the right of the Plaintiffs to perform puja,
archa, abhishek, dahibhat and other pujas at the temple
[hereinafter to be referred as “religious rites and rituals”.] is
not at all disputed, but it is the question of exclusive right of
the Plaintiffs which is in dispute. The claim of the Plaintiffs is
that except the Plaintiff – Badaves, neither the contesting
Defendants, who belong to Jangam community nor any other
person have any such right to perform all such religious rites
and rituals for and on behalf of the members of their
community, as are performed by the Plaintiffs. Since the
contesting Defendants threatened to invade such rights of the
Plaintiffs, this suit was filed for the relief of permanent
injunction.
5. Before the trial Court, voluminous documents
were placed on record. The Plaintiffs examined six witnesses
whereas the contesting Defendants have examined seventeen
witnesses. The Defendant Nos. 2 and 17 have examined one
witness each. The trial Court has held that the documents at
Exhibit Nos. 173, 174, 152, 134 to 136, 301, 138, 293, 294,
296, 208, 309, 168, 342, 154 to 158, 171, 149, 166, 170, 171
have been proved and the contents of it have been relied upon
to hold that the Plaintiffs have established their exclusive right
to perform all such religious rites and rituals. The trial Court
recorded the finding that the documents at Exhibit Nos. 153,
165, 139 to 148, 151, 167 and 169 have not been proved
whereas the documents at Exhibit Nos.307, 308, 167 and 150
are not relevant for deciding the controversy involved in the
matter. The trial Court has also recorded the finding that the
contesting Defendants have no such right to perform the
religious rites and rituals.
6. The appellate Court has considered all these
documents and has held that the documents are not pleaded,
some of the documents are inadmissible in evidence, the
contents of some of the documents are not proved and even if
the documents are admissible in evidence or the contents of
the documents are proved, they have no relevance to the
controversy involved in the case and none of the documents
proved/produced constitute the source of the right of the
Plaintiffs. The appellate Court further held that the decisions
contained in some of these documents are not binding upon
the contesting Defendants. It has been held that the Plaintiffs
have failed to establish their exclusive right to perform
religious rites and rituals.
7. In the light of undisputed factual position and the
findings recorded by the Courts below, this Court passed an
order on 4th March 2008 framing the substantial questions of
law and admitted the appeal. The said order is reproduced
below.
“1. Heard the learned Counsel appearing for the
parties. Second Appeal is admitted on the following
substantial questions of law :
i) Whether the appellate Court could have discarded the
documents at Exhibit-173 and 174 on the ground that the
contents of the said documents have not been proved ?
ii) Whether the appellate Court could have discarded the
document at Exhibit- 173 which was of the year 1724 on
the ground that the contents of the said documents are
not proved especially when the presumption under
section 90 of the Indian Evidence Act, 1872 was
applicable to the said document ?
iii) Whether the appellate Court could have discarded
various documents which were 30 years old on the
ground that the contents of the documents were not
proved ?
iv) Whether the provisions of Hindu Places of Public Worship
(Entry Authorisation) Act, 1956 are applicable to the
temple in question which was owned by the Defendant
No. 17 ?
[At the time of hearing, substituted by the
following substantial question of law:]
iv) Whether the relief claimed and granted by the trial Court
in the suit in question violates the provisions of section 3
of the Bombay Hindu Places of Public Worship (Entry
Authorisation) Act, 1956 so as to attract the bar of
jurisdiction of the civil Court contained in section 6
therein ?
v) Whether the appellate Court committed an error by
holding that the Appellants have not established their
source of right in as much as the original Defendant No.
17 who is claiming to be owner of the temple has
admitted the existence of the right in favour of the
present Appellants ?”
. It seems that the matter had gone before the
Apex Court in Civil Appeal No.8906 of 2011 which was
disposed of by directing the parties to maintain status quo in
all respects. The Apex Court has expedited the decision of the
second appeal and hence the matter is taken from the priority
list for final hearing.
8. Mr. V. A. Thorat, the learned Senior Advocate has
urged that in respect of the admissibility of the documents in
evidence, what the Court is required to look into as a general
principle of law is that (i) the documents are coming from the
proper custody, (ii) the documents are consistent and there is
absence of contemporary contradiction and (iii) the series of
documents indicate a particular mode or pattern unless shown
otherwise. He has urged that the decision of the trial Court
that the Plaintiffs have established their exclusive right, is
based upon the documents which are proved on the basis of
presumption under section 90 of the Indian Evidence Act,
1872. Undisputedly, the documents are more than 30 years
old. They have come on record from the custody of the
Defendant No.17 in whose custody such documents should be,
the contents of the documents are consistent with each other
without any contradiction and indicate the same pattern of the
right of the Plaintiffs to exclusively perform such religious rites
and rituals. He, therefore, submitted that the appellate Court
has committed an error of law in discarding all such
documents either on the ground that the contents of it are not
proved or they do not reflect the source of the right of the
Plaintiffs.
9. Mr. Thorat submitted that it was necessary for the
contesting Defendants to have specifically pleaded either
custom or permission from the Defendant No.17, the owner of
the temple to perform such religious rites and rituals. He
submitted that in the absence of any custom or permission
being pleaded by the contesting Defendants, let alone proved,
the Plaintiffs' right to perform such religious rites and rituals
exclusively must be accepted. He further urged that the
temple in question is a private temple of the Defendant No.17
who in unequivocal terms accepted the case of the Plaintiffs
and hence nothing can be done in the temple without the prior
permission of the Defendant No.17. He submitted that the
Defendant No. 17 has in fact refused such permission to the
contesting Defendants.
10. Mr. Thorat has invited my attention to the decision
in the Civil Suit No.49 of 1929 filed by the Plaintiffs in which a
decree was passed on 12th December 1932, restraining
permanently the Defendants-Kolis therein of Shingnapur not to
obstruct the Plaintiff Badaves of Shingnapur in their right of
taking Dahi-bhat, Naivedya, Maha Naivedya, Ras of grain and
Lakholi along with Guptadan and to give to devotees and
pilgrims, Teerth, Prasad and Angars. He has urged that said
suit was filed in the representative capacity as contemplated
under Order-I Rule-8 of the Code of Civil Procedure, 1908, a
public notice was issued and one Shivlingaya Jangam was
examined at Exhibit-154 deposing the rights of the Jangams
and Kolis to worship and perform puja. Referring to the
Explanation VI under section 11 of the Code of Civil Procedure,
1908, Mr. Thorat has urged that it constructively bars the
entire community of Jangams from re-agitating the matter
which was directly and substantially in issue in the earlier suit.
He submitted that the principle under section 92 of the Code
of Civil Procedure, 1908 needs to be imported and applied.
He submitted that the said decision is binding upon the
contesting Defendants on the ground of estoppel also.
11. The reliance is placed by Mr. Thorat on the
decision of the Apex Court in Tirumala Tirupati Devasthanams
v. K. M. Krishnaiah [AIR-1998 SC 1132], in which it has been
held that the right to worship which was adjudicated in a suit
to which the Plaintiffs in the said decision were not party, such
judgment is admissible in evidence under section 13 of the
Indian Evidence Act, 1872. Inviting my attention to paragraph
19 of the Apex Court decision in Smt. Ass Kaur v. Kartar Singh
[2007(5) All MR 909], he urged that as and when the custom
has repeatedly been recognised by the Courts, the same need
not be proved and a judicial notice can be taken of such
custom under section 57 of the Indian Evidence Act, 1972. He
also relied upon, for the same proposition, the decision of the
Apex Court in Ujagar Singh v. Mst. Jeo [AIR-1959 SC 1041]. In
support of his plea based upon the Explanation VI of section 11
of the Code of Civil Procedure, 1908 and Order-I Rule-8 of the
Code of Civil Procedure, 1908 read with section 92 therein, he
rlied upon the decisions in the case of R. Venugopal v
Venkatarayulu Naidu Charities [1989 Supp (2) SCC 356] and
Singhalal v. Rashtriya Swayam Sewak Sangh, Panna [(1996) 3
SCC 149].
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12. On the question of the documents which are held
to be proved by the trial Court, Mr. Naik, the learned Senior
Advocate appearing for the contesting Defendants has taken
me through the decision of the appellate Court and has urged
that all such documents have been considered by the
appellate Court. The same have been discarded on the ground
that the documents are not pleaded, the contents are not
proved and none of the documents disclose the source of
exclusive right of the Plaintiffs to perform all such rites and
rituals in the temple. He submitted that the appellate Court
has gone into merits of the documents and there is
appreciation and re-appreciation of the contents of it, which
does not give rise to any substantial question of law, being a
possible view of the matter. He submitted that both the Courts
have recorded a concurrent finding of fact that the earlier
decision in Civil Suit No.49 of 1929 delivered on 12th December
1932 and the decisions given in appeal therefrom upto the
second appeal by this Court, are not binding upon the
contesting Defendants as they were not parties in the said
litigation.
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13. Mr. Naik further submitted that the decision in the
Civil Suit No. 49 of 1929 does not satisfy the test of
representative suit under Order-I Rule-8 of the Code of Civil
Procedure, 1908 and the said suit did not claim declaration of
any right muchless about the exclusive right of the Plaintiffs to
perform all religious rites and rituals as has been claimed in
the suit in question. According to him, it was a simplicitor suit
for removal of obstruction by Koli community of Shingnapur in
exercise of the rights of the Plaintiffs, as was asserted. He
submitted that it was not a suit claiming exclusive right by the
Plaintiffs. He invited my attention to an application filed by the
contesting Defendants in Civil Suit No.49 of 1929 for grant of
permission to intervene in the matter. The Court passed an
order on the said application on 25th September 1929, which is
reproduced below :
“The Plaintiff gives a pursis (Exhibit-30) that he does not
want to join the Applicants in the suit. From the frame of
the suit, the Appellants do not appear to have any
interest in this suit or any right to be joined as parties.
The drafting of the notice published in a newspaper
appears to be defective and has led to some
misunderstanding. In fact from the frame of the suit,
only Badaves and Kolis can be parties to this suit.
Application is dismissed with costs.”
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. He, therefore, submitted that the decision in the
aforesaid suit cannot be said to be binding upon the contesting
Defendants. He submitted that the test laid down under
Explanation VI of section 11 of the Code of Civil Procedure,
1908 has also not been satisfied.
14. Relying upon the decision of the Apex Court in
Anathula Sudhakar v. P. Buchi Reddy [(2008) 4 SCC 594] and
also the provisions of sections 34 and 38 of the Specific Reliefs
Act, 1963, Mr. Naik has urged that the suit in question is for
grant of simplicitor injunction restraining the contesting
Defendants perpetually from obstructing the rights of the
Plaintiffs of performing puja, archa, abhishek, dahibhat and
other puja in the temple of Shikhar Shingnapur as priest and to
take income of the same. It also seeks to restrain permanently
the contesting Defendants from using the said rights
unauthorisedly. It is a civil right which is asserted involving the
complicated and complex questions of facts and law. In such a
situation, according to him, it was not permissible for the trial
Court to decide the issue of title in a suit for simplicitor
injunction and the proper course was to relegate the Plaintiffs
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to a remedy of full fledged suit for declaration and
consequential reliefs. He further submitted that the suit in
question is not based on any right, customary or otherwise,
and it fails to disclose specifically the source of such right, the
plaint is bereft of all material facts constituting such right.
According to him, the appellate Court has considered all these
aspects in proper perspective and the decision in appeal does
not give rise to any substantial question of law.
15. In respect of substantial question of law framed at
serial No.(iv), about the applicability of the provisions of the
Bombay Hindu Places of Public Worship (Entry Authorisation)
Act, 1956, Mr. Thorat for the Appellants-Plaintiffs concedes to
the position that the temple is covered by section 2(a) of the
said Act. In view of this, the said substantial question of law
no longer survives for consideration. However, Mr. Naik for the
contesting Defendants as urged that the right claimed in the
suit is covered by section 3 of the said Act and hence the
jurisdiction of the civil Court to grant any relief in such a suit is
barred by law under section 6 of the said Act. He submits that
the test is to find out what is the effect of granting relief to the
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Plaintiffs. If grant of such relief violates section 3, then, bar
under section 6 would operate otherwise not. Mr. Thorat for
the Appellants-Plaintiffs has urged that the suit is not covered
by section 3 and, therefore, the bar under section 6 would ot
operate.
16. In view of the aforesaid rival submissions, by
consent of the learned Counsel appearing for the parties, the
substantial question at serial No.(iv) is substituted as under :
iv) Whether the relief granted by the trial Court in the
suit in question violates the provisions of section 3 of
the Bombay Hindu Places of Public Worship (Entry
Authorisation) Act, 1956 so as to attract the bar of
jurisdiction of the civil Court contained in section 6
therein ?
17. Before proceeding to deal with the substantial
questions of law framed in this second appeal, I would proceed
to decide the other contentions raised by the learned Counsel
appearing for the parties. The plaint is in Marathi and the
prayer clauses are reproduced below in verbatim :
“oknhph fouarh dh &
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v½ izfroknh ua 1 rs 14 ;kauh Lor% vxj brjkekQZr oknh leLr
cMos ;kaps Jh 'kaHkw egknso ve¤rs'oj o f'k[kjf'kax.kkiwj ;sFkhy
brj vo.kZ nsorkaiw<s iqtk vpkZ vfHk”ksd nfgHkkr fofo/k dj.ksps
o oknhauk ,dV;kauk vlysY;k o lnj nsorkaiq<s mRRiUu ?ks.;kps
gDdkl o ofgokVkl gjdr d# u;s vxj vukf/kdkjkus Lor% rs
gDd oki# u;sr v'kh fujarjkph rkdhn izfroknhauk ns.;kr ;kohc
½ ;k nkO;kpk laiw.kZ [kpZ oknhl izfroknhdMwu ns.;kr ;kok-”
. The prayer clauses (A) and (B) in the plaint can be
translated in English as under :
(A) The Defendant Nos.1 to 14 either by themselves or
through anyone else should not object to the
exclusive rights and customs of the entire Badaves to
perform puja, archa, abhishek or dahibhat, etc. and to
take dakshina offered to the deities in the temples of
Shree Shambu Mahadeo Amruteshwar and
Shikharshingnapur and to perpetually restrain the
Defendants from performing such rights in the
temple.
(B) Saddle the costs of the suit upon the Defendants.
18. Bare reading of the plaint shows that a customary
or traditional right to perform the religious rites and rituals has
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been claimed by one community of Hindus, called Badaves, to
the exclusion of all other communities. It is the averment that
such right has been recognised and accepted by all, since the
time immemorial or in antiquity. The cause of action for filing
the suit is shown as unauthorised threat to invade such rights
of the Plaintiffs on 29th and 30th September 1985 by the
contesting Defendants who have no such right.
19. To deal with the contention based upon sections 34
and 38 of the Specific Reliefs Act, 1963, it has to be accepted
as a principle of law that a custom is a source of law and a
right based upon such custom is a customary right.
Proceeding on this principle, the averments need to be seen.
The Plaintiffs have unambiguously averred in the plaint that
they are exercising the right to perform religious rites and
rituals since the time immemorial and in antiquity, recognised
and accepted by all others. The source of such right is
therefore pleaded as customary law. The Plaintiffs have placed
on record documentary as well as the oral evidence in support
of their claim. It is well established that evidence is not
required to be pleaded. The question as to whether such right
is established or not, shall be dealt with subsequently.
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Therefore, in the absence of the documents being pleaded in
the plaint, the suit cannot be dismissed. The lower appellate
Court has committed an error of law in holding that the source
of right is not disclosed in the plaint. The objection raised by
Mr. Naik for the contesting Defendants is, therefore, rejected.
20. Bare reading of the plaint, including the prayers
made therein, leaves no manner of doubt that the Plaintiffs are
claiming a declaration that they have exclusive right to
perform such religious rites and rituals and the contesting
Defendants have no right to create any such obstruction in the
exercise and performance of such rights by the Plaintiffs and in
view of the threats given, the contesting defendants are
required to be restrained perpetually from using the rights of
the Plaintiffs unauthorisedly. Thus, the suit is for grant of
declaration as can be claimed under section 34 of the Specific
Reliefs Act, 1963 and for the consequential relief of perpetual
injunction under section 38 of the said Act.
21. The trial Court has framed the issues and the
appellate Court has framed the points for determination,
including (1) whether the Plaintiffs have the exclusive right of
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performing the puja, aracha, abhishek, dahibhat and other
pujas before the deities of Shree Shambu Mahadeo
Amruteshwar and Shikharshingnapur, as prayed and to take
the income therefrom, (2) Whether the contesting Defendants
are causing obstruction to the rights of the Plaintiffs and the
Plaintiffs are entitled to perpetual injunction as prayed for. The
parties have understood the controversy involved in the
matter and have led the evidence in support of their rival
claims. It is not case of any party that for want of any claim
for declaration, the evidence could not be led. The Courts
below have recorded the findings also. In view of this, it
cannot, therefore, be said that the suit in question is not
claiming any declaration of right under section 34 of the
Specific Reliefs Act, 1963, or that the contesting Defendants
had no notice of the claim for declaration and, therefore, such
contention of Mr. Naik is rejected.
22. The substituted substantial question of law at serial
No.(iv) is whether the relief as is claimed and was granted by
the trial Court violates the provisions of section 3 of the
Bombay Hindu Places of Public Worship (Entry Authorisation)
Act, 1956 so as to attract the bar of the jurisdiction of the civil
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Court under section 6 therein. Both the learned counsel have
invited my attention to the decision of the Apex Court in
Shastri Yagnapurushdasji v. Muldas Bhundardas Vaishya [AIR-
1966 SC 1119], wherein the validity of the said Act was upheld
on the touchstone of Article 26(b) of the the Constitution of
India. Before dealing with the decision in Shastri
Yagnapurushdasji (supra) the position of law as has been
developed by the several decisions of the Apex Court needs to
be seen.
23. In the decision of the Apex Court in t he
Commissioner, Hindu Religious Endowments, Madras vs. Sri
Lakshimindra Thirtha Swamiar of Sri Shirur Mutt (1954 SCR
1005) (known as Shirur Mutt's case), while elaborating the
words “of its own affairs in matters of religion" in Article 26(b),
it has been observed that in contrast to secular matters
relating to administration of its property the religious
denomination or organisation enjoys complete autonomy in
deciding as to what rites and ceremonies are essential
according to the tenets of the religion they hold and no outside
authority has any jurisdiction to interfere with their decision in
such matters.
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24. In the case of Sri Venkataramana Devaru & Others
vs. The State of Mysore and Others (1958 SCR 895), it has
been held that though Article 25(1) deals with rights of
individuals, Article 25(2) is wider in its contents and has
reference to the rights of communities and controls both
Articles 25(1) and 26(b) of the Constitution, though the rights
recognized by Article 25(2)(b) must necessarily be subject to
some limitations or regulations and one such would be
inherent in the process of harmonizing the right conferred by
Article 25 (2)(b) with that protected by Article 26(b).
25. In Tilkayat Shri Govindlalji Maharaj vs. The State of
Rajasthan & Others [AIR-1963 SC 1638] it has been held that
the protection is given to the practice of religion and to the
denomination's right to manage its own affairs in matters of
religion. Therefore, whenever a claim is made on behalf of an
individual citizen that the impugned statute contravenes his
fundamental right to practice religion or a claim is made on
behalf of the denomination that the fundamental right
guaranteed to it to manage its own affairs in matters of
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religion is contravened, it is necessary to consider whether the
practice in question is religious or the affairs in respect of
which the right of management is alleged to have been
contravened are affairs in matters of religion. If the practice is
a religious practice or the affairs are the affairs in matters of
religion, then, of course, the rights guaranteed by Article 25(1)
and Article 26(b) cannot be contravened. It further holds that
if the practice which is protected under the former is a
religious practice, and if the right which is protected under the
latter is the right to manage affairs in matters of religion, it is
necessary that in judging about the merits of the claim made
in that behalf the Court must be satisfied that the practice is
religious and the affair is in regard to a matter of religion.
26. In the case of Sardar Syadna Taher Saifuddin Saheb
vs The State of Bombay [AIR-1962 SC 853] the Apex Court has
summarised the position of law and the principles underlined
in the decision has been placed beyond controversy. The first
is that the protection of these Articles is not limited to matters
of doctrine or belief they extend also to acts done in pursuance
of religion and therefore contain a guarantee for rituals and
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observances, ceremonies and modes of worship which are
integral parts of religion. The second is that what constitutes
an essential part of a religious or religious practice has to be
decided by the courts with reference to the doctrine of a
particular religion and include practices which are regarded by
the community as a part of its religion.
27. Now coming to the decision of Shastri
Yagnapurushdasji (supra), it was a decision arising out the suit
filed by the followers of Swaminarayana sect known as
Satsangis. The suit claimed declaration that the relevant
provisions of the Bombay Hindu Places of Public Worship (Entry
Authorisation) Act, 1956 did not apply to their temples and an
injunction was claimed restraining the Respondent No.1 and
other non–Satsangi Harijans from entering the Swaminarayan
temple of Northern Diocese of Swaminarayan sect and to
restrain the Respondent Nos.2 and 3 claiming to be Mahants of
temples to take steps to prevent the non-Satasangis from
entering and worshiping in the said temples. The suit was
decreed by the trial Court and the High Court reversed the
decree of the trial Court and dismissed the suit. Against this,
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an appeal was carried to the Apex Court, which maintained the
decision of the High Court.
28. The Apex Court has held in the said decision that
the Swaminarayana sect is not distinct and separate from the
Hindu religion and consequently, the temples belonging to the
said sect fall within the ambit of section 3 of the said Act. The
Apex Court rejected the contention that section 3 of the said
Act is so wide that even actual worship of the idols which is
reserved for the Poojaris and specially authorised class of
worshipers, may be claimed by non-Satsangis. Para-25 of the
said decision is relevant and it is reproduced below :
“Besides, on the merits, we do not think that by
enacting s. 3, the Bombay Legislature intended
to invade the traditional and conventional
manner in which the act of actual worship of the
-deity is allowed to be performed only by the
authorised Poojaris of the temple and by no
other devotee entering the temple for darshan.
In many Hindu temples, the act of actual worship
is entrusted to the authorised Poojaris and all
the devotees are allowed to enter the temple up
to a limit beyond which entry is barred :to them,
the innermost portion of the temple being
reserved only for the authorised Poojaris of the
temple. If that is so, then all that s. 3 purports to
do is to give the Harijans the same right to enter
the temple for 'darshan' of the deity as can be
claimed by the other Hindus. It would be noticed
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that the right to enter the temple, to worship in
the temple, to pray in it or to perform any
religious service therein which has been
conferred by s. 3, is specifically qualified by the
clause that the said right will be enjoyed in the
like manner and to the like extent as any other
Hindu of whatsoever section or class may do.
The main object of the section is to establish
complete social equality between all sections of
the Hindus in the matter of worship specified by
s. 3; and so, the apprehension on which Mr.
Desai's argument is based must be held to be
misconceived. We are, therefore, satisfied that
there is no substance in the contention that s. 3
of the Act is ultra vires.”
. It has been held that section 3 of the said Act is not
intended to invade the traditional and conventional manner in
which the act of actual worship of the deity is allowed to be
performed only by the authorised Poojaris of the temple and
by no other devotee entering the temple for darshan. In many
Hindu temples, the act of actual worship is entrusted to the
authorised Poojaris and all the devotees are allowed to enter
the temple up to a limit beyond which entry is barred to them,
the innermost portion of the temple being reserved only for
the authorised Poojaris of the temple.
29. In the decision of the Apex Court in the case of N.
Adithayan v. Travancore Devaswom Board [(2002) 8 SCC 106].
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the grievance was that the appointment of non Brahmin
Santhikaran for the temple in question offends and violates the
alleged long followed mandatory custom and usage of having
only Malayala Brahmins for such jobs of performing poojas in
the Temples and this denies the right of the worshippers to
practice and profess their religion in accordance with its tenets
and manage their religious affairs as secured under Articles 25
and 26 of the Constitution of India. After taking review of the
earlier decisions of the Apex Court it has been held in para-17
that consequently there is no justification to insist that a
Brahmin or Malayala Brahmin in this case, alone can perform
the rites and rituals in the temple, as part of rights and
freedom guaranteed under Article 25 of the Constitution of
India and further claim that any deviation would amount to
violation of any such right guaranteed under the Constitution.
30. It is the contention raised by the learned Senior
Counsel Mr. Thorat for the Appellants-Plaintiffs that the Court
should take judicial notice of the fact that all along a Brahmin
alone conducts the religious rites and rituals in the private and
public temples and therefore a person other than Brahmin is
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prohibited from performing such religious rights and rituals.
The Apex Court has precisely dealt with this matter in N.
Adithayan (Supra) in para-17 of the judgment which is
reproduced below :
“17...................................... If traditionally or
conventionally, in any Temple, all along a Brahmin
alone was conducting poojas or performing the job
of Santhikaran, it may not be because a person
other than the Brahmin is prohibited from doing so
because he is not a Brahmin, but those others were
not in a position and, as a matter of fact, were
prohibited from learning, reciting or mastering Vedic
literature, rites or performance of rituals and
wearing sacred thread by getting initiated into the
order and thereby acquire the right to perform
homa and ritualistic forms of worship in public or
private Temples. Consequently, there is no
justification to insist that a Brahmin or Malayala
Brahmin in this case, alone can perform the rites
and rituals in the Temple, as part of the rights and
freedom guaranteed under Article 25 of the
Constitution and further claim that any deviation
would tantamount to violation of any such
guarantee under the Constitution. There can be no
claim based upon Article 26 so far as the Temple
under our consideration is concerned. Apart from
this principle enunciated above, as long any one
well versed and properly trained and qualified to
perform the puja in a manner conducive and
appropriate to the worship of the particular deity, is
appointed as Santhikaran dehors his pedigree based
on caste, no valid or legally justifiable grievance can
be made in a Court of Law. There has been no
proper plea or sufficient proof also in this case of
any specific custom or usage specially created by
the Founder of the Temple or those who have the
exclusive right to administer the affairs religious or
secular of the Temple in question, leave alone the
legality, propriety and validity of the same in the
changed legal position brought about by the
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Constitution and the law enacted by Parliament. The
Temple also does not belong to any denominational
category with any specialized form of worship
peculiar to such denomination or to its credit. For
the said reason, it becomes, in a sense, even
unnecessary to pronounce upon the invalidity of any
such practice being violative of the constitutional
mandate contained in Articles 14 to 17 and 21 of
the Constitution of India”
. It has been held that if the traditionally and
conventionally, in any temple, all along a Brahmin alone was
conducting pooja or performing the job of Santhikaran, it may
not be because the person other than a Brahmin is prohibited
from doing so, because he is not a Brahmin, but those others
were not in a position and, as a matter of fact, were prohibited
from learning, reciting or mastering Vedic literature, rites or
performance of rituals and wearing sacred thread by getting
initiated into the order and thereby acquire the right to
perform homa and ritualistic forms of worship in a public or
private temple. Ultimately, in para-18, the Apex Court has
held that any custom or usage irrespective of any proof of their
existence in pre-constitutional days cannot be countenanced
as a source of law to claim any rights when it is found to
violate human rights, dignity, social equality and specific
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mandate of the Constitution and the law made by the
parliament. No usage which is found to be pernicious and
considered to be in derogation of the law of the land or
opposed to public policy or social decency can be accepted or
upheld by Courts in the country.
31. The Apex Court has also held in para 17 reproduced
above that only a qualified person well-versed and properly
trained for the purpose alone can perform poojas in the temple
since he has not only to enter into the sanctum sanctorum but
also touch the idol installed therein. It therefore goes without
saying what is required and expected of one to perform the
rituals and conduct pooja is to know the rituals to be
performed and mantras, as necessary, to be recited for the
particular deity and the method of worship ordained or fixed
therefor. It has been held that as long as any one well-versed
and properly trained and qualified to perform the pooja in a
manner conducive and appropriate to the worship of the
particular deity, is appointed as Santhikaran dehors his
pedgree based on caste, no valid or legally justifiable
grievance can be made in a Court of law.
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32. The law as has been developed in several decisions
of the Apex Court cited above can be summarised briefly as
under :
[1] The religious denominations or organisations enjoy
complete autonomy in deciding as to what rites and
ceremonies are essential according to the tenets of the
religion they hold and no outside authority has any
jurisdiction to interfere with their decision in such matters.
[2] Article 25(2) of the Constitution of India controls the rights
of the individuals and of the communities but it must
necessarily be subject to some limitations and regulations
and one such would be inherent in the process of
harmonizing the rights conferred by Articles 25(2)(b) of
the Constitution of India with that protected by Article
26(b) of the Constitution of India.
[3] If the practice is religious practice or the affairs are the
affairs in the matter of religion, then, of course, the rights
guaranteed by Articles 25(1) and 26(b) of the Constitution
of India cannot be contravened.
[4] The protection of Articles 25 and 26 of the Constitution of
India is not limited to the mattes of doctrine or belief but
extend also to the acts done in pursuance of the religion
and therefore contain a guarantee for rituals and
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observances, ceremonies and modes of worship which are
integral part of the religion.
[5] Section 3 of the Bombay Hindu Places of Public Worship
(Entry Authorisation) Act, 1956 does not intend to invade
the traditional and conventional manner in which the
actual act of worship of a deity is allowed to be performed
only by the authorised poojaris of the temple and by no
other devotee entering the temple for darshan.
[6] If traditionally or conventionally any one well-versed and
properly trained and qualified to perform pooja in a
manner conducive and appropriate to the worship of a
particular deity, is appointed as Santhikaran or Poojari
dehors his pedigree based on caste, no valid or legally
justifiable grievance can be made in a Court of law.
[7] Any custom or usage irrespective of any proof of their
existence in pre-constitutional days cannot be
countenanced as a source of law to claim any rights when
it is found to violate the human rights, dignity, the social
equality and specific mandate of the Constitution or the
law made by the Parliament.
[8] No usage which is found to be pernicious and considered
to be in derogation of the law of the land or opposed to
the public policy or social decency can be accepted or
upheld by the Courts in the country.
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[9] In judging the rival claims as guaranteed by Articles 25(1)
and 26(b) of the Constitution, the Court must be satisfied
that the practice is religious and the affair is in regard to
the matter of religion.
[10]What constitutes an essential part of the religion or
religious practice has to be decided by the Courts with
reference to the doctrine of a particular religion and
includes the practices which are regarded by the
community as part of its religion.
33. In the light of aforestated principles of law laid
down, section 3 of the Bombay Hindu Places of Public Worship
(Entry Authorisation) Act, 1956 needs to be seen and hence it
is reproduced below :
“3. Throwing open of Hindu temples to all
classes and sections of Hindus.- Notwithstanding
any custom, usage or law for the time being in
force, or the decree or order of a Court, or anything
contained in any instrument, to the contrary, every
place of public worship which is open to Hindus
generally, or to any section or class thereof, shall be
open to all sections and classes of Hindus; and no
Hindu of whatsoever section or class, shall in any
manner be prevented, obstructed or discouraged
from entering such place of public worship, or from
worshiping or offering prayers thereat, or
performing any religious service therein, in the like
manner and to like extent as any other Hindu of
whatsoever section or class may so enter, worship,
pray or perform.”
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. The main object of section 3 is to establish
complete social equality between all the sections of Hindus in
the matter of worship specified by section 3. It deals with the
individual as well as the community rights of entering the
places of public worship, worshiping or offering prayers thereat
or performing any religious service therein. Though this
provision operates notwithstanding any custom, usage or law
for the time being in force, it is controlled by Articles 25(2)(b)
and 26(b) of the Constitution of India. It has to be read
harmoniously and it cannot be construed in a manner which
shall invade the guarantee of religious practice or the affairs in
the matter of religion contained in Articles 25(2)(b) and 26(b)
of the Constitution of India. If the practice is religious practice
or the affairs are the affairs in the matter of religion, then, the
rights guaranteed cannot be contravened. The religious
denomination or organization enjoys complete autonomy in
deciding as to what rights and ceremonies are essential
according to the tenets of the religion they hold and no
outsider has any jurisdiction to interfere with it.
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34. Section 3 does not intend to invade the traditional,
conventional or customary manner in which the actual act of
worshiping of a deity is allowed to be performed only by the
authorised Poojaris of the temple and by no other devotee
entering the temple for darshan. The rights to enter the
sanctum sanctorum, i.e., to enter the innermost sacred part of
the temple where the idols are installed and to do the actual
worship by touching the idols for the purpose of bathing,
dressing the idols, offering the garlands and doing all other
ceremonial rites prescribed by the custom, convention or
tradition, are not covered by section 3 of the said Act.
35. Section 6 of the said Act deals with the limitation of
the jurisdiction of the civil Court and it runs as under :
“6. Limitation of jurisdiction of civil Courts. -
No civil Court shall entertain or continue any suit or
proceeding, or shall pass any decree or order, or
execute wholly or partially any decree or order, if
the claim involved in any such suit or proceeding,
or if the passing of any such decree or order or if
such execution would in any way be contrary to the
provisions of this Act.”
. Section 6 bars the jurisdiction of the civil Court to
entertain or continue any suit or proceeding or to pass any
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decree or order, or execute wholly or partially any decree or
order, if the claim involved in such suit or proceeding or if the
passing of any such decree or order or if such execution would
in any way be contrary to the provisions of this Act. The
language employed under section 6 leaves no manner of
doubt that if the relief claimed by the Plaintiffs and granted by
the trial Court violates the provisions of section 3 of the said
Act, then, the bar of the jurisdiction of the civil Court under
section 6 would operate. It will, therefore, depend upon the
averments made in the plaint, the reliefs claimed and granted
by the Court and the facts and circumstances of the case,
whether the bar created under section 6 of the said Act
operates or not.
36. As pointed out earlier, in the present case, the
Plaintiffs are claiming declaration that they have exclusive
right to perform such religious rites and rituals and the
contesting Defendants have no right to create any obstruction
in exercise and performance of such rights by the Plaintiffs. It
is a customary right based upon customary law which has
been claimed. The consequential relief of injunction to
perpetually restrain the other community of Hindus from using
the rights of the Plaintiffs unauthorisedly, has also been
claimed. The trial Court has passed a decree in terms of the
prayers made in the suit. The jurisdiction of the civil Court
under section 9 of the Code of Civil Procedure, 1908 is
available, as the right claimed being one covered by Articles
25(2)(b) and 26(b) of the Constitution of India, and the
jurisdiction of the Civil Court in the present case was not
barred under section 6 of the said Act. The substantial
question at serial no.(iv) is, therefore, answered accordingly.
37. Now coming to the other substantial questions of
law at serial Nos.(i), (ii), (iii) and (v) in respect of the proof of or
establishing the customary and traditional rights to perform
the religious rites and rituals is concerned, undisputedly the
decision in the Civil Suit No.49 of 1929 at Exhibit- 134 has
attained the finality. The Regular Civil Appeal No. 70 of 1933
and the Second Appeal No.630 of 1935 are dismissed and the
judgments are at Exhibit-135 and 136 respectively. It was
between the two communities of Hindus - one, the Plaintiffs
herein, who are Badaves and the another community of Kolis
who were the Defendants in the said suit. It was not a suit
claiming an exclusive right of the Plaintiffs to perform all the
religious rites and rituals, as has been claimed in the present
suit. Though a public notice was issued in the said suit and the
contesting Defendants filed an application under Order-I Rule-8
of the Code for being joined as the Defendants in the suit, the
said application was strongly opposed by the Plaintiffs –
Badaves. The Court had specifically passed an order
observing that the Plaintiff (Badaves) does not want to join the
contesting Defendants in the said suit and from the frame of
the suit, it does not appear that the contesting Defendants
have any interest in the said suit or any right to be joined as a
party. It was held that the drafting of the notice published has
led to some misunderstanding and only the Badaves and Kolis
can be parties to the suit. With this observation, the
application was dismissed.
38. I have gone through the decision in Civil Suit No. 40
of 1929. In paragraph 17 of the said decision, the right of
Jangams (the contesting Defendants) in respect to perform
Dahibhat puja is considered and it has been held that it is not
necessary to consider and decide the said point as it is a
matter between Brahmins and Jangams. It holds that the only
question involved being the right of Kolis to take Dahibhat of
the puja performed by or through the Badaves. Thus, the
Court was not considering the case of the rights of the
Jangams to perform puja or take Dahibhat. In paragraph 23
therein, it has been held that the Jangams have no connection
with the Dahibhat puja performed by the Brahmins. This
observation does not mean that the Jangams were not
performing the puja and offering Dahibhat for and on behalf of
the members of their community. It has further been held in
the said judgment that the Jangams do not perform the daily
worship of the deities. This also does not mean that the
Jangams were not performing the puja or offering Dahibhat
either on some occasions or on behalf of the members of their
community. It is, thus, apparent that it was exclusively a
dispute interse between the Badaves and Kolis in respect of
the performance of the religious rites and rituals which was
involved in the Civil Suit No.49 of 1929. It was a decree for
permanent injunction passed specifically against the Kolis not
to obstruct the Plaintiff-Badaves in their right of taking Dahipatilsr
bhat, Naivedya, Maha Naivedya, Ras of grain and Lakholi along
with Guptadan and to give to devotees and pilgrims, Teerth,
Prasad and Angars. Both the Courts below have concurrently
held that neither the decision in the Civil Suit No.49 of 1929 is
binding upon the contesting Defendants nor any statement
made in the deposition by a member of their community in the
said proceedings.
39. In view of above, the appellate Court was right in
holding that it was not a suit in a representative capacity as
contemplated under Order-I Rule-8 of the Code of Civil
Procedure, 1908 nor the bar of constructive res judicata under
Explanation-VI of Section 11 of the Code operates against the
contesting Defendants. The decisions of the Apex Court in the
cases of R. Venugopal and Singhalal (supra) delivered on
Order-I Rule-8 and Explanation-VI of section 11 of the Code are
of no help. Similarly, the question of applying the ratio of the
decision of the Apex Court in Tirumala Tirupati Devasthanams
(supra) on section 13 of the Indian Evidence Act, 1872 and in
the case of Ujagar Singh (supra) on section 57 of the Indian
Evidence Act, 1872 does not at all arise.
40. It is the question of customary or traditional right in
rem which the Plaintiff has claimed in the suit in question. In
the decision of the Apex Court in the case of Booz-Allen &
Hamilton Inc vs SBI Home Finance Ltd [(2011) 5 SCC 532], a
distinction is made out between right in rem and a right in
personam, in para 37, which is reproduced below :
“It may be noticed that the cases referred to above
relate to actions in rem. A right in rem is a right
exercisable against the world at large, as contrasted
from a right in personam which is an interest
protected solely against specific individuals. Actions
in personam refer to actions determining the rights
and interests of the parties themselves in the
subject matter of the case, whereas actions in rem
refer to actions determining the title to property and
the rights of the parties, not merely among
themselves but also against all persons at any time
claiming an interest in that property.
Correspondingly, judgment in personam refers to a
judgment against a person as distinguished from a
judgment against a thing, right or status and
Judgment in rem refers to a judgment that
determines the status or condition of property which
operates directly on the property itself.
. The right in rem, if established creates a duty
against the world at large not to disturb it unless it is shown
that the Defendants or any other person has made out a case
of exception that they are not bound by such right of the
Plaintiffs. In view of this, the contention of Mr. Thorat for the
Plaintiffs that the contesting Defendants must prove custom in
their favour to perform all such religious rites and rituals is
accepted subject to a rider that it is for the Plaintiffs who have
come before the Court to first prove their right in rem, as has
been claimed. Once a right in rem is established on the basis
of customary law, the perpetual injunction, as claimed, should
follow in the absence of any custom being pleaded and proved
by the contesting Defendants.
41. A custom is a long drawn, ancient, uniform, definite
continuous and compulsory usage or practice which has been
accepted followed and recognised by the members of
community or religion interested in it. The custom has the
effect of modifying the general personal law. But it does not
override the statutory law unless the custom is expressly
saved by it. No custom is valid if it is illegal, immoral,
unreasonable or opposed to the public policy. The custom
being in derogation of the general law, is required to be
construed strictly. The party relying upon the custom is
obliged to establish it by way of clear and unambiguous
evidence. The evidence adduced on behalf of the party
concerned, must prove the alleged custom and the proof must
not be unsatisfactory or conflicting. A custom cannot be
extended by analogy or logical process and it also cannot be
established by a priori method. The decision of the Apex Court
in the case of Laximibai v. Bhagwantbuva [(2013) 4 SCC 97]
throws light on the aforesaid proposition. A claim for
customary or traditional right in rem to perform the religious
rites and rituals to the exclusion of any interference by others,
as has been claimed in the present suit, carries with it a heavy
burden of proof. In the light of these principles, I shall judge
the findings of the Courts below and the evidence available on
record.
42. In this suit or appeal, the simplicitor rights of the
Plaintiffs to perform such religious rites and rituals is not
disputed. The contesting Defendants accept such right of the
Plaintiffs. According to them, they also have the right to
perform all such religious rites and rituals for and on behalf of
the members of their community. It is, therefore, a question of
the right in rem to perform the religious rites and rituals for
and on behalf of the members of all the communities of Hindus
to the exclusion of all others. The learned Senior Counsel
appearing for both the sides have taken me through the
documentary and oral evidence on record. On going through
the same, I do not find any documentary evidence constituting
the source of the exclusive right of the Plaintiffs as claimed,
which has been accepted and recognised by all others,
including the contesting Defendants. There is neither any
proof of any practice or usage nor of its acceptance or
recognition as required by law. On the contrary the history of
the litigation shows that the other communities have been
obstructing the Plaintiffs in performance of such rights. Hence,
the question of calling upon the contesting Defendants to
prove their customary right does not at all arise. The Plaintiffs
have to stand on their own legs and not upon the weaknesses
of the other side.
43. The Plaintiffs have placed on record voluminous
documentary and oral evidence in support of their plea. The
trial Court has held that the exclusive right of the Plaintiff to
perform all such religious rites and rituals has been established
on the basis of the oral evidence and the documents proved
and marked as Exhibit-134 to 136, 138, 152, 154 to 158, 166,
168, 170, 171, 173, 174, 293, 296, 298, 309, 340 and 342.
The trial Court has held that the documents at Exhibit-139 to
148, 151, 153, 165 and 167 have not been proved. In respect
of the documents at Exhibit-150, 167, 307 and 308, the trial
Court has held that the documents are proved but they are not
relevant or material for deciding the controversy. The
appellate Court has held that some of the documents which
are held to be proved by the trial Court, namely, Exhibit-173
and 174 on the basis of section 90 of the Indian Evidence Act,
1872, were not admissible in evidence. The documents were
not pleaded. The contents are not proved. Even if the
documents are proved and held admissible in evidence, the
finding of the appellate Court is that these documents nowhere
disclose the source of exclusive right of the Plaintiffs to
perform all such religious rites and rituals in the temple.
44. It is not necessary for me to discuss the findings
recorded by the Courts below at length. Every thing is
considered by the Courts below and it is not the case of non
application of mind to any evidence on record. The findings of
fact recorded by the appellate Court are based upon the
appreciation of evidence and reading of these documents, and
at any rate it is possible view of the matter which does not
give rise to any substantial question of law for consideration.
45. Now [coming to]* the last submission of Mr. Thorat
that it is the Defendant No.17, the owner of the temple, has
the right to decide as to who should be allowed to perform the
religious rites and rituals in the temple. At any rate, according
to him, the evidence available on record clearly suggests that
the Defendant No.17 has granted permission to the Plaintiffs to
perform such religious rites and rituals in the temples and
there is specific refusal of such permission to the contesting
Defendants. Be that as it may, it is significant to note that the
suit in question has not been filed by the owners of the temple
asserting their right to manage the affairs in a matter of
religion under Article 26(b) of the Constitution of India. It is a
legal battle between the two communities of Hindus, namely,
Badaves and Jangams. It is not the case pleaded in the plaint
that it is only by virtue of the permission granted by the
Defendant No.17 that the Plaintiffs have been performing such
religious rites and rituals to the exclusion of other communities
of Hindus. It is not the case pleaded or proved that performing
of religious rights and rituals, as are claimed, constitute an
essential part of the religion or religious practice and the
Plaintiffs are only authorised by the Defendant No.17, the
owner to perform such rites and rituals. It is not the case that
according to the tenets of religion, only the Badaves are wellversed
and properly trained and qualified to perform the
religious rites and rituals in a manner conducive and
appropriate to worship of the deities and are the only persons
authorised to enter the sanctum sanctorum of the temples. In
the absence of such a case being pleaded and proved, the
documents at Exhibit-173 and 174 and other connected
documents even if disclose the source of such right of the
Plaintiffs, would not be enough to grant relief to the Plaintiffs
as is claimed.
46. In view of the above, none of the substantial
question of law at serial Nos.(i) to (iii) and (v) survive for
consideration. The second appeal is, therefore, dismissed.
There shall be no order as to costs.
[JUDGE]
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continuous and compulsory usage or practice which has been
accepted followed and recognised by the members of
community or religion interested in it. The custom has the
effect of modifying the general personal law. But it does not
override the statutory law unless the custom is expressly
saved by it. No custom is valid if it is illegal, immoral,
unreasonable or opposed to the public policy. The custom
being in derogation of the general law, is required to be
construed strictly. The party relying upon the custom is
obliged to establish it by way of clear and unambiguous
evidence. The evidence adduced on behalf of the party
concerned, must prove the alleged custom and the proof must
not be unsatisfactory or conflicting. A custom cannot be
extended by analogy or logical process and it also cannot be
established by a priori method. The decision of the Apex Court
in the case of Laximibai v. Bhagwantbuva [(2013) 4 SCC 97]
throws light on the aforesaid proposition. A claim for
customary or traditional right in rem to perform the religious
rites and rituals to the exclusion of any interference by others,
as has been claimed in the present suit, carries with it a heavy
burden of proof.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 937 OF 2007
Yeshwant Balwant Badave
VERSUS.
Shri. Yogi Rajendra Shivacharya Guru
Coram : Ravi K. Deshpande, J.
Date of pronouncement of judgment: July 17, 2014.
Citation;2015(2) MHLJ291
1. In Regular Civil Suit No. 167 of 1985 for grant of
injunction restraining the Defendant Nos.1 to 14 perpetually
from obstructing the exclusive rights of the Plaintiffs of
performing puja, archa, dahibhat, abhishek and other pujas etc
before the deity Shri. Shambu Mahadeo, Amruteshwar and the
other deities of Shikhar Shingnapur Devsthan as priest and to
take income of the same and claiming permanent injunction
restraining the Defendants from using the said rights
unauthorisedly, the learned Civil Judge, Junior Division,
Dahiwadi has passed a decree and operative portion of the
order is reproduced below :
“(1) The suit of the Plaintiffs is hereby decreed
with costs.
(2) The Defendant Nos.1 to 11 and 14 are
hereby restrained permanently from causing any kind of
obstruction to the plaintiff's exclusive right of performing
puja, archa, dahibhat pja, abhishek and other pujas etc.
before deities Shri Shambhu Mahadeo, Amrutheshwar
and other deities of Shikhar Shingnapur temple, Tal. Man
to receive the income of the same as priests.
(3) There is no any order as against the
Defendant Nos. 12 and 13 since they are dead, so also as
against the Defendant Nos. 15 to 17, as no any relief has
been claimed against them.”
2. In Regular Civil Appeal No.43 of 1994, the learned
Ad-hoc District Judge-4, Satara has by its judgment and order
dated 1st September 2007 reversed the decision of the trial
Court by allowing the appeal and the suit is dismissed. Hence,
this second appeal by the original Plaintiffs.
3. The Appellants are the original Plaintiffs and
belong to Badave community. The original Defendant Nos.12
and 13 have died whereas no relief was claimed against the
Defendant Nos.15 to 17. It is not in dispute that the Defendant
No.17 Chhatrapati Udayan Raje Bhosale is the owner of the
suit property and has supported the claim of the Plaintiffs. The
Defendant Nos.1 to 11 and 14 belong to Lingayat community
and have seriously contested the claim of the Plaintiffs.
Hence, they shall be referred to hereinafter as “the contesting
defendants”.
4. The dispute in this appeal is between the two
communities of Hindus, namely, the Badaves who are the
Plaintiffs and the contesting Defendants who are the
Lingayats. I have heard Mr. V. A Thorat, the learned Senior
Advocate assisted by Smt. S. S. Gokhale appearing for the
Appellants and Mr. V. B. Naik, the learned Senior Advocate
assisted by Mr. R. S. Alange appearing for the contesting
Defendants. Both the learned Senior Advocates have
repeatedly urged and it is also the finding recorded by both the
Courts below that the right of the Plaintiffs to perform puja,
archa, abhishek, dahibhat and other pujas at the temple
[hereinafter to be referred as “religious rites and rituals”.] is
not at all disputed, but it is the question of exclusive right of
the Plaintiffs which is in dispute. The claim of the Plaintiffs is
that except the Plaintiff – Badaves, neither the contesting
Defendants, who belong to Jangam community nor any other
person have any such right to perform all such religious rites
and rituals for and on behalf of the members of their
community, as are performed by the Plaintiffs. Since the
contesting Defendants threatened to invade such rights of the
Plaintiffs, this suit was filed for the relief of permanent
injunction.
5. Before the trial Court, voluminous documents
were placed on record. The Plaintiffs examined six witnesses
whereas the contesting Defendants have examined seventeen
witnesses. The Defendant Nos. 2 and 17 have examined one
witness each. The trial Court has held that the documents at
Exhibit Nos. 173, 174, 152, 134 to 136, 301, 138, 293, 294,
296, 208, 309, 168, 342, 154 to 158, 171, 149, 166, 170, 171
have been proved and the contents of it have been relied upon
to hold that the Plaintiffs have established their exclusive right
to perform all such religious rites and rituals. The trial Court
recorded the finding that the documents at Exhibit Nos. 153,
165, 139 to 148, 151, 167 and 169 have not been proved
whereas the documents at Exhibit Nos.307, 308, 167 and 150
are not relevant for deciding the controversy involved in the
matter. The trial Court has also recorded the finding that the
contesting Defendants have no such right to perform the
religious rites and rituals.
6. The appellate Court has considered all these
documents and has held that the documents are not pleaded,
some of the documents are inadmissible in evidence, the
contents of some of the documents are not proved and even if
the documents are admissible in evidence or the contents of
the documents are proved, they have no relevance to the
controversy involved in the case and none of the documents
proved/produced constitute the source of the right of the
Plaintiffs. The appellate Court further held that the decisions
contained in some of these documents are not binding upon
the contesting Defendants. It has been held that the Plaintiffs
have failed to establish their exclusive right to perform
religious rites and rituals.
7. In the light of undisputed factual position and the
findings recorded by the Courts below, this Court passed an
order on 4th March 2008 framing the substantial questions of
law and admitted the appeal. The said order is reproduced
below.
“1. Heard the learned Counsel appearing for the
parties. Second Appeal is admitted on the following
substantial questions of law :
i) Whether the appellate Court could have discarded the
documents at Exhibit-173 and 174 on the ground that the
contents of the said documents have not been proved ?
ii) Whether the appellate Court could have discarded the
document at Exhibit- 173 which was of the year 1724 on
the ground that the contents of the said documents are
not proved especially when the presumption under
section 90 of the Indian Evidence Act, 1872 was
applicable to the said document ?
iii) Whether the appellate Court could have discarded
various documents which were 30 years old on the
ground that the contents of the documents were not
proved ?
iv) Whether the provisions of Hindu Places of Public Worship
(Entry Authorisation) Act, 1956 are applicable to the
temple in question which was owned by the Defendant
No. 17 ?
[At the time of hearing, substituted by the
following substantial question of law:]
iv) Whether the relief claimed and granted by the trial Court
in the suit in question violates the provisions of section 3
of the Bombay Hindu Places of Public Worship (Entry
Authorisation) Act, 1956 so as to attract the bar of
jurisdiction of the civil Court contained in section 6
therein ?
v) Whether the appellate Court committed an error by
holding that the Appellants have not established their
source of right in as much as the original Defendant No.
17 who is claiming to be owner of the temple has
admitted the existence of the right in favour of the
present Appellants ?”
. It seems that the matter had gone before the
Apex Court in Civil Appeal No.8906 of 2011 which was
disposed of by directing the parties to maintain status quo in
all respects. The Apex Court has expedited the decision of the
second appeal and hence the matter is taken from the priority
list for final hearing.
8. Mr. V. A. Thorat, the learned Senior Advocate has
urged that in respect of the admissibility of the documents in
evidence, what the Court is required to look into as a general
principle of law is that (i) the documents are coming from the
proper custody, (ii) the documents are consistent and there is
absence of contemporary contradiction and (iii) the series of
documents indicate a particular mode or pattern unless shown
otherwise. He has urged that the decision of the trial Court
that the Plaintiffs have established their exclusive right, is
based upon the documents which are proved on the basis of
presumption under section 90 of the Indian Evidence Act,
1872. Undisputedly, the documents are more than 30 years
old. They have come on record from the custody of the
Defendant No.17 in whose custody such documents should be,
the contents of the documents are consistent with each other
without any contradiction and indicate the same pattern of the
right of the Plaintiffs to exclusively perform such religious rites
and rituals. He, therefore, submitted that the appellate Court
has committed an error of law in discarding all such
documents either on the ground that the contents of it are not
proved or they do not reflect the source of the right of the
Plaintiffs.
9. Mr. Thorat submitted that it was necessary for the
contesting Defendants to have specifically pleaded either
custom or permission from the Defendant No.17, the owner of
the temple to perform such religious rites and rituals. He
submitted that in the absence of any custom or permission
being pleaded by the contesting Defendants, let alone proved,
the Plaintiffs' right to perform such religious rites and rituals
exclusively must be accepted. He further urged that the
temple in question is a private temple of the Defendant No.17
who in unequivocal terms accepted the case of the Plaintiffs
and hence nothing can be done in the temple without the prior
permission of the Defendant No.17. He submitted that the
Defendant No. 17 has in fact refused such permission to the
contesting Defendants.
10. Mr. Thorat has invited my attention to the decision
in the Civil Suit No.49 of 1929 filed by the Plaintiffs in which a
decree was passed on 12th December 1932, restraining
permanently the Defendants-Kolis therein of Shingnapur not to
obstruct the Plaintiff Badaves of Shingnapur in their right of
taking Dahi-bhat, Naivedya, Maha Naivedya, Ras of grain and
Lakholi along with Guptadan and to give to devotees and
pilgrims, Teerth, Prasad and Angars. He has urged that said
suit was filed in the representative capacity as contemplated
under Order-I Rule-8 of the Code of Civil Procedure, 1908, a
public notice was issued and one Shivlingaya Jangam was
examined at Exhibit-154 deposing the rights of the Jangams
and Kolis to worship and perform puja. Referring to the
Explanation VI under section 11 of the Code of Civil Procedure,
1908, Mr. Thorat has urged that it constructively bars the
entire community of Jangams from re-agitating the matter
which was directly and substantially in issue in the earlier suit.
He submitted that the principle under section 92 of the Code
of Civil Procedure, 1908 needs to be imported and applied.
He submitted that the said decision is binding upon the
contesting Defendants on the ground of estoppel also.
11. The reliance is placed by Mr. Thorat on the
decision of the Apex Court in Tirumala Tirupati Devasthanams
v. K. M. Krishnaiah [AIR-1998 SC 1132], in which it has been
held that the right to worship which was adjudicated in a suit
to which the Plaintiffs in the said decision were not party, such
judgment is admissible in evidence under section 13 of the
Indian Evidence Act, 1872. Inviting my attention to paragraph
19 of the Apex Court decision in Smt. Ass Kaur v. Kartar Singh
[2007(5) All MR 909], he urged that as and when the custom
has repeatedly been recognised by the Courts, the same need
not be proved and a judicial notice can be taken of such
custom under section 57 of the Indian Evidence Act, 1972. He
also relied upon, for the same proposition, the decision of the
Apex Court in Ujagar Singh v. Mst. Jeo [AIR-1959 SC 1041]. In
support of his plea based upon the Explanation VI of section 11
of the Code of Civil Procedure, 1908 and Order-I Rule-8 of the
Code of Civil Procedure, 1908 read with section 92 therein, he
rlied upon the decisions in the case of R. Venugopal v
Venkatarayulu Naidu Charities [1989 Supp (2) SCC 356] and
Singhalal v. Rashtriya Swayam Sewak Sangh, Panna [(1996) 3
SCC 149].
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12. On the question of the documents which are held
to be proved by the trial Court, Mr. Naik, the learned Senior
Advocate appearing for the contesting Defendants has taken
me through the decision of the appellate Court and has urged
that all such documents have been considered by the
appellate Court. The same have been discarded on the ground
that the documents are not pleaded, the contents are not
proved and none of the documents disclose the source of
exclusive right of the Plaintiffs to perform all such rites and
rituals in the temple. He submitted that the appellate Court
has gone into merits of the documents and there is
appreciation and re-appreciation of the contents of it, which
does not give rise to any substantial question of law, being a
possible view of the matter. He submitted that both the Courts
have recorded a concurrent finding of fact that the earlier
decision in Civil Suit No.49 of 1929 delivered on 12th December
1932 and the decisions given in appeal therefrom upto the
second appeal by this Court, are not binding upon the
contesting Defendants as they were not parties in the said
litigation.
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13. Mr. Naik further submitted that the decision in the
Civil Suit No. 49 of 1929 does not satisfy the test of
representative suit under Order-I Rule-8 of the Code of Civil
Procedure, 1908 and the said suit did not claim declaration of
any right muchless about the exclusive right of the Plaintiffs to
perform all religious rites and rituals as has been claimed in
the suit in question. According to him, it was a simplicitor suit
for removal of obstruction by Koli community of Shingnapur in
exercise of the rights of the Plaintiffs, as was asserted. He
submitted that it was not a suit claiming exclusive right by the
Plaintiffs. He invited my attention to an application filed by the
contesting Defendants in Civil Suit No.49 of 1929 for grant of
permission to intervene in the matter. The Court passed an
order on the said application on 25th September 1929, which is
reproduced below :
“The Plaintiff gives a pursis (Exhibit-30) that he does not
want to join the Applicants in the suit. From the frame of
the suit, the Appellants do not appear to have any
interest in this suit or any right to be joined as parties.
The drafting of the notice published in a newspaper
appears to be defective and has led to some
misunderstanding. In fact from the frame of the suit,
only Badaves and Kolis can be parties to this suit.
Application is dismissed with costs.”
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. He, therefore, submitted that the decision in the
aforesaid suit cannot be said to be binding upon the contesting
Defendants. He submitted that the test laid down under
Explanation VI of section 11 of the Code of Civil Procedure,
1908 has also not been satisfied.
14. Relying upon the decision of the Apex Court in
Anathula Sudhakar v. P. Buchi Reddy [(2008) 4 SCC 594] and
also the provisions of sections 34 and 38 of the Specific Reliefs
Act, 1963, Mr. Naik has urged that the suit in question is for
grant of simplicitor injunction restraining the contesting
Defendants perpetually from obstructing the rights of the
Plaintiffs of performing puja, archa, abhishek, dahibhat and
other puja in the temple of Shikhar Shingnapur as priest and to
take income of the same. It also seeks to restrain permanently
the contesting Defendants from using the said rights
unauthorisedly. It is a civil right which is asserted involving the
complicated and complex questions of facts and law. In such a
situation, according to him, it was not permissible for the trial
Court to decide the issue of title in a suit for simplicitor
injunction and the proper course was to relegate the Plaintiffs
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to a remedy of full fledged suit for declaration and
consequential reliefs. He further submitted that the suit in
question is not based on any right, customary or otherwise,
and it fails to disclose specifically the source of such right, the
plaint is bereft of all material facts constituting such right.
According to him, the appellate Court has considered all these
aspects in proper perspective and the decision in appeal does
not give rise to any substantial question of law.
15. In respect of substantial question of law framed at
serial No.(iv), about the applicability of the provisions of the
Bombay Hindu Places of Public Worship (Entry Authorisation)
Act, 1956, Mr. Thorat for the Appellants-Plaintiffs concedes to
the position that the temple is covered by section 2(a) of the
said Act. In view of this, the said substantial question of law
no longer survives for consideration. However, Mr. Naik for the
contesting Defendants as urged that the right claimed in the
suit is covered by section 3 of the said Act and hence the
jurisdiction of the civil Court to grant any relief in such a suit is
barred by law under section 6 of the said Act. He submits that
the test is to find out what is the effect of granting relief to the
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Plaintiffs. If grant of such relief violates section 3, then, bar
under section 6 would operate otherwise not. Mr. Thorat for
the Appellants-Plaintiffs has urged that the suit is not covered
by section 3 and, therefore, the bar under section 6 would ot
operate.
16. In view of the aforesaid rival submissions, by
consent of the learned Counsel appearing for the parties, the
substantial question at serial No.(iv) is substituted as under :
iv) Whether the relief granted by the trial Court in the
suit in question violates the provisions of section 3 of
the Bombay Hindu Places of Public Worship (Entry
Authorisation) Act, 1956 so as to attract the bar of
jurisdiction of the civil Court contained in section 6
therein ?
17. Before proceeding to deal with the substantial
questions of law framed in this second appeal, I would proceed
to decide the other contentions raised by the learned Counsel
appearing for the parties. The plaint is in Marathi and the
prayer clauses are reproduced below in verbatim :
“oknhph fouarh dh &
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v½ izfroknh ua 1 rs 14 ;kauh Lor% vxj brjkekQZr oknh leLr
cMos ;kaps Jh 'kaHkw egknso ve¤rs'oj o f'k[kjf'kax.kkiwj ;sFkhy
brj vo.kZ nsorkaiw<s iqtk vpkZ vfHk”ksd nfgHkkr fofo/k dj.ksps
o oknhauk ,dV;kauk vlysY;k o lnj nsorkaiq<s mRRiUu ?ks.;kps
gDdkl o ofgokVkl gjdr d# u;s vxj vukf/kdkjkus Lor% rs
gDd oki# u;sr v'kh fujarjkph rkdhn izfroknhauk ns.;kr ;kohc
½ ;k nkO;kpk laiw.kZ [kpZ oknhl izfroknhdMwu ns.;kr ;kok-”
. The prayer clauses (A) and (B) in the plaint can be
translated in English as under :
(A) The Defendant Nos.1 to 14 either by themselves or
through anyone else should not object to the
exclusive rights and customs of the entire Badaves to
perform puja, archa, abhishek or dahibhat, etc. and to
take dakshina offered to the deities in the temples of
Shree Shambu Mahadeo Amruteshwar and
Shikharshingnapur and to perpetually restrain the
Defendants from performing such rights in the
temple.
(B) Saddle the costs of the suit upon the Defendants.
18. Bare reading of the plaint shows that a customary
or traditional right to perform the religious rites and rituals has
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been claimed by one community of Hindus, called Badaves, to
the exclusion of all other communities. It is the averment that
such right has been recognised and accepted by all, since the
time immemorial or in antiquity. The cause of action for filing
the suit is shown as unauthorised threat to invade such rights
of the Plaintiffs on 29th and 30th September 1985 by the
contesting Defendants who have no such right.
19. To deal with the contention based upon sections 34
and 38 of the Specific Reliefs Act, 1963, it has to be accepted
as a principle of law that a custom is a source of law and a
right based upon such custom is a customary right.
Proceeding on this principle, the averments need to be seen.
The Plaintiffs have unambiguously averred in the plaint that
they are exercising the right to perform religious rites and
rituals since the time immemorial and in antiquity, recognised
and accepted by all others. The source of such right is
therefore pleaded as customary law. The Plaintiffs have placed
on record documentary as well as the oral evidence in support
of their claim. It is well established that evidence is not
required to be pleaded. The question as to whether such right
is established or not, shall be dealt with subsequently.
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Therefore, in the absence of the documents being pleaded in
the plaint, the suit cannot be dismissed. The lower appellate
Court has committed an error of law in holding that the source
of right is not disclosed in the plaint. The objection raised by
Mr. Naik for the contesting Defendants is, therefore, rejected.
20. Bare reading of the plaint, including the prayers
made therein, leaves no manner of doubt that the Plaintiffs are
claiming a declaration that they have exclusive right to
perform such religious rites and rituals and the contesting
Defendants have no right to create any such obstruction in the
exercise and performance of such rights by the Plaintiffs and in
view of the threats given, the contesting defendants are
required to be restrained perpetually from using the rights of
the Plaintiffs unauthorisedly. Thus, the suit is for grant of
declaration as can be claimed under section 34 of the Specific
Reliefs Act, 1963 and for the consequential relief of perpetual
injunction under section 38 of the said Act.
21. The trial Court has framed the issues and the
appellate Court has framed the points for determination,
including (1) whether the Plaintiffs have the exclusive right of
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performing the puja, aracha, abhishek, dahibhat and other
pujas before the deities of Shree Shambu Mahadeo
Amruteshwar and Shikharshingnapur, as prayed and to take
the income therefrom, (2) Whether the contesting Defendants
are causing obstruction to the rights of the Plaintiffs and the
Plaintiffs are entitled to perpetual injunction as prayed for. The
parties have understood the controversy involved in the
matter and have led the evidence in support of their rival
claims. It is not case of any party that for want of any claim
for declaration, the evidence could not be led. The Courts
below have recorded the findings also. In view of this, it
cannot, therefore, be said that the suit in question is not
claiming any declaration of right under section 34 of the
Specific Reliefs Act, 1963, or that the contesting Defendants
had no notice of the claim for declaration and, therefore, such
contention of Mr. Naik is rejected.
22. The substituted substantial question of law at serial
No.(iv) is whether the relief as is claimed and was granted by
the trial Court violates the provisions of section 3 of the
Bombay Hindu Places of Public Worship (Entry Authorisation)
Act, 1956 so as to attract the bar of the jurisdiction of the civil
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Court under section 6 therein. Both the learned counsel have
invited my attention to the decision of the Apex Court in
Shastri Yagnapurushdasji v. Muldas Bhundardas Vaishya [AIR-
1966 SC 1119], wherein the validity of the said Act was upheld
on the touchstone of Article 26(b) of the the Constitution of
India. Before dealing with the decision in Shastri
Yagnapurushdasji (supra) the position of law as has been
developed by the several decisions of the Apex Court needs to
be seen.
23. In the decision of the Apex Court in t he
Commissioner, Hindu Religious Endowments, Madras vs. Sri
Lakshimindra Thirtha Swamiar of Sri Shirur Mutt (1954 SCR
1005) (known as Shirur Mutt's case), while elaborating the
words “of its own affairs in matters of religion" in Article 26(b),
it has been observed that in contrast to secular matters
relating to administration of its property the religious
denomination or organisation enjoys complete autonomy in
deciding as to what rites and ceremonies are essential
according to the tenets of the religion they hold and no outside
authority has any jurisdiction to interfere with their decision in
such matters.
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24. In the case of Sri Venkataramana Devaru & Others
vs. The State of Mysore and Others (1958 SCR 895), it has
been held that though Article 25(1) deals with rights of
individuals, Article 25(2) is wider in its contents and has
reference to the rights of communities and controls both
Articles 25(1) and 26(b) of the Constitution, though the rights
recognized by Article 25(2)(b) must necessarily be subject to
some limitations or regulations and one such would be
inherent in the process of harmonizing the right conferred by
Article 25 (2)(b) with that protected by Article 26(b).
25. In Tilkayat Shri Govindlalji Maharaj vs. The State of
Rajasthan & Others [AIR-1963 SC 1638] it has been held that
the protection is given to the practice of religion and to the
denomination's right to manage its own affairs in matters of
religion. Therefore, whenever a claim is made on behalf of an
individual citizen that the impugned statute contravenes his
fundamental right to practice religion or a claim is made on
behalf of the denomination that the fundamental right
guaranteed to it to manage its own affairs in matters of
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religion is contravened, it is necessary to consider whether the
practice in question is religious or the affairs in respect of
which the right of management is alleged to have been
contravened are affairs in matters of religion. If the practice is
a religious practice or the affairs are the affairs in matters of
religion, then, of course, the rights guaranteed by Article 25(1)
and Article 26(b) cannot be contravened. It further holds that
if the practice which is protected under the former is a
religious practice, and if the right which is protected under the
latter is the right to manage affairs in matters of religion, it is
necessary that in judging about the merits of the claim made
in that behalf the Court must be satisfied that the practice is
religious and the affair is in regard to a matter of religion.
26. In the case of Sardar Syadna Taher Saifuddin Saheb
vs The State of Bombay [AIR-1962 SC 853] the Apex Court has
summarised the position of law and the principles underlined
in the decision has been placed beyond controversy. The first
is that the protection of these Articles is not limited to matters
of doctrine or belief they extend also to acts done in pursuance
of religion and therefore contain a guarantee for rituals and
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observances, ceremonies and modes of worship which are
integral parts of religion. The second is that what constitutes
an essential part of a religious or religious practice has to be
decided by the courts with reference to the doctrine of a
particular religion and include practices which are regarded by
the community as a part of its religion.
27. Now coming to the decision of Shastri
Yagnapurushdasji (supra), it was a decision arising out the suit
filed by the followers of Swaminarayana sect known as
Satsangis. The suit claimed declaration that the relevant
provisions of the Bombay Hindu Places of Public Worship (Entry
Authorisation) Act, 1956 did not apply to their temples and an
injunction was claimed restraining the Respondent No.1 and
other non–Satsangi Harijans from entering the Swaminarayan
temple of Northern Diocese of Swaminarayan sect and to
restrain the Respondent Nos.2 and 3 claiming to be Mahants of
temples to take steps to prevent the non-Satasangis from
entering and worshiping in the said temples. The suit was
decreed by the trial Court and the High Court reversed the
decree of the trial Court and dismissed the suit. Against this,
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an appeal was carried to the Apex Court, which maintained the
decision of the High Court.
28. The Apex Court has held in the said decision that
the Swaminarayana sect is not distinct and separate from the
Hindu religion and consequently, the temples belonging to the
said sect fall within the ambit of section 3 of the said Act. The
Apex Court rejected the contention that section 3 of the said
Act is so wide that even actual worship of the idols which is
reserved for the Poojaris and specially authorised class of
worshipers, may be claimed by non-Satsangis. Para-25 of the
said decision is relevant and it is reproduced below :
“Besides, on the merits, we do not think that by
enacting s. 3, the Bombay Legislature intended
to invade the traditional and conventional
manner in which the act of actual worship of the
-deity is allowed to be performed only by the
authorised Poojaris of the temple and by no
other devotee entering the temple for darshan.
In many Hindu temples, the act of actual worship
is entrusted to the authorised Poojaris and all
the devotees are allowed to enter the temple up
to a limit beyond which entry is barred :to them,
the innermost portion of the temple being
reserved only for the authorised Poojaris of the
temple. If that is so, then all that s. 3 purports to
do is to give the Harijans the same right to enter
the temple for 'darshan' of the deity as can be
claimed by the other Hindus. It would be noticed
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that the right to enter the temple, to worship in
the temple, to pray in it or to perform any
religious service therein which has been
conferred by s. 3, is specifically qualified by the
clause that the said right will be enjoyed in the
like manner and to the like extent as any other
Hindu of whatsoever section or class may do.
The main object of the section is to establish
complete social equality between all sections of
the Hindus in the matter of worship specified by
s. 3; and so, the apprehension on which Mr.
Desai's argument is based must be held to be
misconceived. We are, therefore, satisfied that
there is no substance in the contention that s. 3
of the Act is ultra vires.”
. It has been held that section 3 of the said Act is not
intended to invade the traditional and conventional manner in
which the act of actual worship of the deity is allowed to be
performed only by the authorised Poojaris of the temple and
by no other devotee entering the temple for darshan. In many
Hindu temples, the act of actual worship is entrusted to the
authorised Poojaris and all the devotees are allowed to enter
the temple up to a limit beyond which entry is barred to them,
the innermost portion of the temple being reserved only for
the authorised Poojaris of the temple.
29. In the decision of the Apex Court in the case of N.
Adithayan v. Travancore Devaswom Board [(2002) 8 SCC 106].
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the grievance was that the appointment of non Brahmin
Santhikaran for the temple in question offends and violates the
alleged long followed mandatory custom and usage of having
only Malayala Brahmins for such jobs of performing poojas in
the Temples and this denies the right of the worshippers to
practice and profess their religion in accordance with its tenets
and manage their religious affairs as secured under Articles 25
and 26 of the Constitution of India. After taking review of the
earlier decisions of the Apex Court it has been held in para-17
that consequently there is no justification to insist that a
Brahmin or Malayala Brahmin in this case, alone can perform
the rites and rituals in the temple, as part of rights and
freedom guaranteed under Article 25 of the Constitution of
India and further claim that any deviation would amount to
violation of any such right guaranteed under the Constitution.
30. It is the contention raised by the learned Senior
Counsel Mr. Thorat for the Appellants-Plaintiffs that the Court
should take judicial notice of the fact that all along a Brahmin
alone conducts the religious rites and rituals in the private and
public temples and therefore a person other than Brahmin is
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prohibited from performing such religious rights and rituals.
The Apex Court has precisely dealt with this matter in N.
Adithayan (Supra) in para-17 of the judgment which is
reproduced below :
“17...................................... If traditionally or
conventionally, in any Temple, all along a Brahmin
alone was conducting poojas or performing the job
of Santhikaran, it may not be because a person
other than the Brahmin is prohibited from doing so
because he is not a Brahmin, but those others were
not in a position and, as a matter of fact, were
prohibited from learning, reciting or mastering Vedic
literature, rites or performance of rituals and
wearing sacred thread by getting initiated into the
order and thereby acquire the right to perform
homa and ritualistic forms of worship in public or
private Temples. Consequently, there is no
justification to insist that a Brahmin or Malayala
Brahmin in this case, alone can perform the rites
and rituals in the Temple, as part of the rights and
freedom guaranteed under Article 25 of the
Constitution and further claim that any deviation
would tantamount to violation of any such
guarantee under the Constitution. There can be no
claim based upon Article 26 so far as the Temple
under our consideration is concerned. Apart from
this principle enunciated above, as long any one
well versed and properly trained and qualified to
perform the puja in a manner conducive and
appropriate to the worship of the particular deity, is
appointed as Santhikaran dehors his pedigree based
on caste, no valid or legally justifiable grievance can
be made in a Court of Law. There has been no
proper plea or sufficient proof also in this case of
any specific custom or usage specially created by
the Founder of the Temple or those who have the
exclusive right to administer the affairs religious or
secular of the Temple in question, leave alone the
legality, propriety and validity of the same in the
changed legal position brought about by the
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Constitution and the law enacted by Parliament. The
Temple also does not belong to any denominational
category with any specialized form of worship
peculiar to such denomination or to its credit. For
the said reason, it becomes, in a sense, even
unnecessary to pronounce upon the invalidity of any
such practice being violative of the constitutional
mandate contained in Articles 14 to 17 and 21 of
the Constitution of India”
. It has been held that if the traditionally and
conventionally, in any temple, all along a Brahmin alone was
conducting pooja or performing the job of Santhikaran, it may
not be because the person other than a Brahmin is prohibited
from doing so, because he is not a Brahmin, but those others
were not in a position and, as a matter of fact, were prohibited
from learning, reciting or mastering Vedic literature, rites or
performance of rituals and wearing sacred thread by getting
initiated into the order and thereby acquire the right to
perform homa and ritualistic forms of worship in a public or
private temple. Ultimately, in para-18, the Apex Court has
held that any custom or usage irrespective of any proof of their
existence in pre-constitutional days cannot be countenanced
as a source of law to claim any rights when it is found to
violate human rights, dignity, social equality and specific
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mandate of the Constitution and the law made by the
parliament. No usage which is found to be pernicious and
considered to be in derogation of the law of the land or
opposed to public policy or social decency can be accepted or
upheld by Courts in the country.
31. The Apex Court has also held in para 17 reproduced
above that only a qualified person well-versed and properly
trained for the purpose alone can perform poojas in the temple
since he has not only to enter into the sanctum sanctorum but
also touch the idol installed therein. It therefore goes without
saying what is required and expected of one to perform the
rituals and conduct pooja is to know the rituals to be
performed and mantras, as necessary, to be recited for the
particular deity and the method of worship ordained or fixed
therefor. It has been held that as long as any one well-versed
and properly trained and qualified to perform the pooja in a
manner conducive and appropriate to the worship of the
particular deity, is appointed as Santhikaran dehors his
pedgree based on caste, no valid or legally justifiable
grievance can be made in a Court of law.
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32. The law as has been developed in several decisions
of the Apex Court cited above can be summarised briefly as
under :
[1] The religious denominations or organisations enjoy
complete autonomy in deciding as to what rites and
ceremonies are essential according to the tenets of the
religion they hold and no outside authority has any
jurisdiction to interfere with their decision in such matters.
[2] Article 25(2) of the Constitution of India controls the rights
of the individuals and of the communities but it must
necessarily be subject to some limitations and regulations
and one such would be inherent in the process of
harmonizing the rights conferred by Articles 25(2)(b) of
the Constitution of India with that protected by Article
26(b) of the Constitution of India.
[3] If the practice is religious practice or the affairs are the
affairs in the matter of religion, then, of course, the rights
guaranteed by Articles 25(1) and 26(b) of the Constitution
of India cannot be contravened.
[4] The protection of Articles 25 and 26 of the Constitution of
India is not limited to the mattes of doctrine or belief but
extend also to the acts done in pursuance of the religion
and therefore contain a guarantee for rituals and
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observances, ceremonies and modes of worship which are
integral part of the religion.
[5] Section 3 of the Bombay Hindu Places of Public Worship
(Entry Authorisation) Act, 1956 does not intend to invade
the traditional and conventional manner in which the
actual act of worship of a deity is allowed to be performed
only by the authorised poojaris of the temple and by no
other devotee entering the temple for darshan.
[6] If traditionally or conventionally any one well-versed and
properly trained and qualified to perform pooja in a
manner conducive and appropriate to the worship of a
particular deity, is appointed as Santhikaran or Poojari
dehors his pedigree based on caste, no valid or legally
justifiable grievance can be made in a Court of law.
[7] Any custom or usage irrespective of any proof of their
existence in pre-constitutional days cannot be
countenanced as a source of law to claim any rights when
it is found to violate the human rights, dignity, the social
equality and specific mandate of the Constitution or the
law made by the Parliament.
[8] No usage which is found to be pernicious and considered
to be in derogation of the law of the land or opposed to
the public policy or social decency can be accepted or
upheld by the Courts in the country.
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[9] In judging the rival claims as guaranteed by Articles 25(1)
and 26(b) of the Constitution, the Court must be satisfied
that the practice is religious and the affair is in regard to
the matter of religion.
[10]What constitutes an essential part of the religion or
religious practice has to be decided by the Courts with
reference to the doctrine of a particular religion and
includes the practices which are regarded by the
community as part of its religion.
33. In the light of aforestated principles of law laid
down, section 3 of the Bombay Hindu Places of Public Worship
(Entry Authorisation) Act, 1956 needs to be seen and hence it
is reproduced below :
“3. Throwing open of Hindu temples to all
classes and sections of Hindus.- Notwithstanding
any custom, usage or law for the time being in
force, or the decree or order of a Court, or anything
contained in any instrument, to the contrary, every
place of public worship which is open to Hindus
generally, or to any section or class thereof, shall be
open to all sections and classes of Hindus; and no
Hindu of whatsoever section or class, shall in any
manner be prevented, obstructed or discouraged
from entering such place of public worship, or from
worshiping or offering prayers thereat, or
performing any religious service therein, in the like
manner and to like extent as any other Hindu of
whatsoever section or class may so enter, worship,
pray or perform.”
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. The main object of section 3 is to establish
complete social equality between all the sections of Hindus in
the matter of worship specified by section 3. It deals with the
individual as well as the community rights of entering the
places of public worship, worshiping or offering prayers thereat
or performing any religious service therein. Though this
provision operates notwithstanding any custom, usage or law
for the time being in force, it is controlled by Articles 25(2)(b)
and 26(b) of the Constitution of India. It has to be read
harmoniously and it cannot be construed in a manner which
shall invade the guarantee of religious practice or the affairs in
the matter of religion contained in Articles 25(2)(b) and 26(b)
of the Constitution of India. If the practice is religious practice
or the affairs are the affairs in the matter of religion, then, the
rights guaranteed cannot be contravened. The religious
denomination or organization enjoys complete autonomy in
deciding as to what rights and ceremonies are essential
according to the tenets of the religion they hold and no
outsider has any jurisdiction to interfere with it.
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34. Section 3 does not intend to invade the traditional,
conventional or customary manner in which the actual act of
worshiping of a deity is allowed to be performed only by the
authorised Poojaris of the temple and by no other devotee
entering the temple for darshan. The rights to enter the
sanctum sanctorum, i.e., to enter the innermost sacred part of
the temple where the idols are installed and to do the actual
worship by touching the idols for the purpose of bathing,
dressing the idols, offering the garlands and doing all other
ceremonial rites prescribed by the custom, convention or
tradition, are not covered by section 3 of the said Act.
35. Section 6 of the said Act deals with the limitation of
the jurisdiction of the civil Court and it runs as under :
“6. Limitation of jurisdiction of civil Courts. -
No civil Court shall entertain or continue any suit or
proceeding, or shall pass any decree or order, or
execute wholly or partially any decree or order, if
the claim involved in any such suit or proceeding,
or if the passing of any such decree or order or if
such execution would in any way be contrary to the
provisions of this Act.”
. Section 6 bars the jurisdiction of the civil Court to
entertain or continue any suit or proceeding or to pass any
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decree or order, or execute wholly or partially any decree or
order, if the claim involved in such suit or proceeding or if the
passing of any such decree or order or if such execution would
in any way be contrary to the provisions of this Act. The
language employed under section 6 leaves no manner of
doubt that if the relief claimed by the Plaintiffs and granted by
the trial Court violates the provisions of section 3 of the said
Act, then, the bar of the jurisdiction of the civil Court under
section 6 would operate. It will, therefore, depend upon the
averments made in the plaint, the reliefs claimed and granted
by the Court and the facts and circumstances of the case,
whether the bar created under section 6 of the said Act
operates or not.
36. As pointed out earlier, in the present case, the
Plaintiffs are claiming declaration that they have exclusive
right to perform such religious rites and rituals and the
contesting Defendants have no right to create any obstruction
in exercise and performance of such rights by the Plaintiffs. It
is a customary right based upon customary law which has
been claimed. The consequential relief of injunction to
perpetually restrain the other community of Hindus from using
the rights of the Plaintiffs unauthorisedly, has also been
claimed. The trial Court has passed a decree in terms of the
prayers made in the suit. The jurisdiction of the civil Court
under section 9 of the Code of Civil Procedure, 1908 is
available, as the right claimed being one covered by Articles
25(2)(b) and 26(b) of the Constitution of India, and the
jurisdiction of the Civil Court in the present case was not
barred under section 6 of the said Act. The substantial
question at serial no.(iv) is, therefore, answered accordingly.
37. Now coming to the other substantial questions of
law at serial Nos.(i), (ii), (iii) and (v) in respect of the proof of or
establishing the customary and traditional rights to perform
the religious rites and rituals is concerned, undisputedly the
decision in the Civil Suit No.49 of 1929 at Exhibit- 134 has
attained the finality. The Regular Civil Appeal No. 70 of 1933
and the Second Appeal No.630 of 1935 are dismissed and the
judgments are at Exhibit-135 and 136 respectively. It was
between the two communities of Hindus - one, the Plaintiffs
herein, who are Badaves and the another community of Kolis
who were the Defendants in the said suit. It was not a suit
claiming an exclusive right of the Plaintiffs to perform all the
religious rites and rituals, as has been claimed in the present
suit. Though a public notice was issued in the said suit and the
contesting Defendants filed an application under Order-I Rule-8
of the Code for being joined as the Defendants in the suit, the
said application was strongly opposed by the Plaintiffs –
Badaves. The Court had specifically passed an order
observing that the Plaintiff (Badaves) does not want to join the
contesting Defendants in the said suit and from the frame of
the suit, it does not appear that the contesting Defendants
have any interest in the said suit or any right to be joined as a
party. It was held that the drafting of the notice published has
led to some misunderstanding and only the Badaves and Kolis
can be parties to the suit. With this observation, the
application was dismissed.
38. I have gone through the decision in Civil Suit No. 40
of 1929. In paragraph 17 of the said decision, the right of
Jangams (the contesting Defendants) in respect to perform
Dahibhat puja is considered and it has been held that it is not
necessary to consider and decide the said point as it is a
matter between Brahmins and Jangams. It holds that the only
question involved being the right of Kolis to take Dahibhat of
the puja performed by or through the Badaves. Thus, the
Court was not considering the case of the rights of the
Jangams to perform puja or take Dahibhat. In paragraph 23
therein, it has been held that the Jangams have no connection
with the Dahibhat puja performed by the Brahmins. This
observation does not mean that the Jangams were not
performing the puja and offering Dahibhat for and on behalf of
the members of their community. It has further been held in
the said judgment that the Jangams do not perform the daily
worship of the deities. This also does not mean that the
Jangams were not performing the puja or offering Dahibhat
either on some occasions or on behalf of the members of their
community. It is, thus, apparent that it was exclusively a
dispute interse between the Badaves and Kolis in respect of
the performance of the religious rites and rituals which was
involved in the Civil Suit No.49 of 1929. It was a decree for
permanent injunction passed specifically against the Kolis not
to obstruct the Plaintiff-Badaves in their right of taking Dahipatilsr
bhat, Naivedya, Maha Naivedya, Ras of grain and Lakholi along
with Guptadan and to give to devotees and pilgrims, Teerth,
Prasad and Angars. Both the Courts below have concurrently
held that neither the decision in the Civil Suit No.49 of 1929 is
binding upon the contesting Defendants nor any statement
made in the deposition by a member of their community in the
said proceedings.
39. In view of above, the appellate Court was right in
holding that it was not a suit in a representative capacity as
contemplated under Order-I Rule-8 of the Code of Civil
Procedure, 1908 nor the bar of constructive res judicata under
Explanation-VI of Section 11 of the Code operates against the
contesting Defendants. The decisions of the Apex Court in the
cases of R. Venugopal and Singhalal (supra) delivered on
Order-I Rule-8 and Explanation-VI of section 11 of the Code are
of no help. Similarly, the question of applying the ratio of the
decision of the Apex Court in Tirumala Tirupati Devasthanams
(supra) on section 13 of the Indian Evidence Act, 1872 and in
the case of Ujagar Singh (supra) on section 57 of the Indian
Evidence Act, 1872 does not at all arise.
40. It is the question of customary or traditional right in
rem which the Plaintiff has claimed in the suit in question. In
the decision of the Apex Court in the case of Booz-Allen &
Hamilton Inc vs SBI Home Finance Ltd [(2011) 5 SCC 532], a
distinction is made out between right in rem and a right in
personam, in para 37, which is reproduced below :
“It may be noticed that the cases referred to above
relate to actions in rem. A right in rem is a right
exercisable against the world at large, as contrasted
from a right in personam which is an interest
protected solely against specific individuals. Actions
in personam refer to actions determining the rights
and interests of the parties themselves in the
subject matter of the case, whereas actions in rem
refer to actions determining the title to property and
the rights of the parties, not merely among
themselves but also against all persons at any time
claiming an interest in that property.
Correspondingly, judgment in personam refers to a
judgment against a person as distinguished from a
judgment against a thing, right or status and
Judgment in rem refers to a judgment that
determines the status or condition of property which
operates directly on the property itself.
. The right in rem, if established creates a duty
against the world at large not to disturb it unless it is shown
that the Defendants or any other person has made out a case
of exception that they are not bound by such right of the
Plaintiffs. In view of this, the contention of Mr. Thorat for the
Plaintiffs that the contesting Defendants must prove custom in
their favour to perform all such religious rites and rituals is
accepted subject to a rider that it is for the Plaintiffs who have
come before the Court to first prove their right in rem, as has
been claimed. Once a right in rem is established on the basis
of customary law, the perpetual injunction, as claimed, should
follow in the absence of any custom being pleaded and proved
by the contesting Defendants.
41. A custom is a long drawn, ancient, uniform, definite
continuous and compulsory usage or practice which has been
accepted followed and recognised by the members of
community or religion interested in it. The custom has the
effect of modifying the general personal law. But it does not
override the statutory law unless the custom is expressly
saved by it. No custom is valid if it is illegal, immoral,
unreasonable or opposed to the public policy. The custom
being in derogation of the general law, is required to be
construed strictly. The party relying upon the custom is
obliged to establish it by way of clear and unambiguous
evidence. The evidence adduced on behalf of the party
concerned, must prove the alleged custom and the proof must
not be unsatisfactory or conflicting. A custom cannot be
extended by analogy or logical process and it also cannot be
established by a priori method. The decision of the Apex Court
in the case of Laximibai v. Bhagwantbuva [(2013) 4 SCC 97]
throws light on the aforesaid proposition. A claim for
customary or traditional right in rem to perform the religious
rites and rituals to the exclusion of any interference by others,
as has been claimed in the present suit, carries with it a heavy
burden of proof. In the light of these principles, I shall judge
the findings of the Courts below and the evidence available on
record.
42. In this suit or appeal, the simplicitor rights of the
Plaintiffs to perform such religious rites and rituals is not
disputed. The contesting Defendants accept such right of the
Plaintiffs. According to them, they also have the right to
perform all such religious rites and rituals for and on behalf of
the members of their community. It is, therefore, a question of
the right in rem to perform the religious rites and rituals for
and on behalf of the members of all the communities of Hindus
to the exclusion of all others. The learned Senior Counsel
appearing for both the sides have taken me through the
documentary and oral evidence on record. On going through
the same, I do not find any documentary evidence constituting
the source of the exclusive right of the Plaintiffs as claimed,
which has been accepted and recognised by all others,
including the contesting Defendants. There is neither any
proof of any practice or usage nor of its acceptance or
recognition as required by law. On the contrary the history of
the litigation shows that the other communities have been
obstructing the Plaintiffs in performance of such rights. Hence,
the question of calling upon the contesting Defendants to
prove their customary right does not at all arise. The Plaintiffs
have to stand on their own legs and not upon the weaknesses
of the other side.
43. The Plaintiffs have placed on record voluminous
documentary and oral evidence in support of their plea. The
trial Court has held that the exclusive right of the Plaintiff to
perform all such religious rites and rituals has been established
on the basis of the oral evidence and the documents proved
and marked as Exhibit-134 to 136, 138, 152, 154 to 158, 166,
168, 170, 171, 173, 174, 293, 296, 298, 309, 340 and 342.
The trial Court has held that the documents at Exhibit-139 to
148, 151, 153, 165 and 167 have not been proved. In respect
of the documents at Exhibit-150, 167, 307 and 308, the trial
Court has held that the documents are proved but they are not
relevant or material for deciding the controversy. The
appellate Court has held that some of the documents which
are held to be proved by the trial Court, namely, Exhibit-173
and 174 on the basis of section 90 of the Indian Evidence Act,
1872, were not admissible in evidence. The documents were
not pleaded. The contents are not proved. Even if the
documents are proved and held admissible in evidence, the
finding of the appellate Court is that these documents nowhere
disclose the source of exclusive right of the Plaintiffs to
perform all such religious rites and rituals in the temple.
44. It is not necessary for me to discuss the findings
recorded by the Courts below at length. Every thing is
considered by the Courts below and it is not the case of non
application of mind to any evidence on record. The findings of
fact recorded by the appellate Court are based upon the
appreciation of evidence and reading of these documents, and
at any rate it is possible view of the matter which does not
give rise to any substantial question of law for consideration.
45. Now [coming to]* the last submission of Mr. Thorat
that it is the Defendant No.17, the owner of the temple, has
the right to decide as to who should be allowed to perform the
religious rites and rituals in the temple. At any rate, according
to him, the evidence available on record clearly suggests that
the Defendant No.17 has granted permission to the Plaintiffs to
perform such religious rites and rituals in the temples and
there is specific refusal of such permission to the contesting
Defendants. Be that as it may, it is significant to note that the
suit in question has not been filed by the owners of the temple
asserting their right to manage the affairs in a matter of
religion under Article 26(b) of the Constitution of India. It is a
legal battle between the two communities of Hindus, namely,
Badaves and Jangams. It is not the case pleaded in the plaint
that it is only by virtue of the permission granted by the
Defendant No.17 that the Plaintiffs have been performing such
religious rites and rituals to the exclusion of other communities
of Hindus. It is not the case pleaded or proved that performing
of religious rights and rituals, as are claimed, constitute an
essential part of the religion or religious practice and the
Plaintiffs are only authorised by the Defendant No.17, the
owner to perform such rites and rituals. It is not the case that
according to the tenets of religion, only the Badaves are wellversed
and properly trained and qualified to perform the
religious rites and rituals in a manner conducive and
appropriate to worship of the deities and are the only persons
authorised to enter the sanctum sanctorum of the temples. In
the absence of such a case being pleaded and proved, the
documents at Exhibit-173 and 174 and other connected
documents even if disclose the source of such right of the
Plaintiffs, would not be enough to grant relief to the Plaintiffs
as is claimed.
46. In view of the above, none of the substantial
question of law at serial Nos.(i) to (iii) and (v) survive for
consideration. The second appeal is, therefore, dismissed.
There shall be no order as to costs.
[JUDGE]
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This was a great help Sir!
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