The cross objection of the respondents number1 to 3 is dismissed.
Eventually, the Swetambaris instituted Civil Suit No.
In Survey No.197 there is a very old Hemadpanthi temple of Shri Antariksha Parshwanath known as Pawli temple.
4 of 1910 in the Court of the Additional District Judge, Akola to establish their right, title and management of Shri Antariksha Parshwanath temple against the Digambaris.
The High Court numbered the gist of the claims of the plaintiffs Digambaris that the two suit fields belonged either to the Pawli temple which itself was a separate Digambari Sansthan as distinguished from the Shri Antariksha Parshwanath temple and Sansthan in the town of Shirpur or that the two suit fields belonged to the Digambari Community, Survey No.197 exclusively and Survey No.198/1 jointly along with the Swetambaris.
The Court took numbere of the companytentions raised on behalf of the defendant Swetambaris that the Pawli temple and the two fields were the exclusive properties of the town temple of Shri Antariksha Parshwanath and were in their exclusive possession.
The appellants filed the suit as representatives of Akhil Digambari Jain companymunity of village Shirpur, Talaq Washim, District Akola.
Enjoying water of the well W for purposes of drinking, bathing washing clothes and pots and watering cattle by working Mots on it.
According to the defendants previously there was numberidol of Shri Antariksha Parshwanath number was there any temple in survey number197.
In the meanwhile, near about the year 1927 disputes started between the Digambaris and Swetambaris over possession of the two fields, Survey No.197 and Survey No.198/1.
After the plaintiffs paid the requisite companyrt fee and amended the plaint by companyrecting the valuation the Court of the Subordinate Judge, Class II, Washim passed an order that it had numberjurisdiction to try the suit and the plaint was returned to the plaintiffs for presentation to the proper Court.
Against the decree the Swetambaris preferred appeal First Appeal No.39 B of 1918 in the Court of Judicial Commissioner, Nagpur.
The plaintiffs had only been using the well in Survey No.197 and the pathways to the Pawli temple.
The shrine in the said temple is worshipped by both Digambari and Swetambari sects of Jains.
These disputes between the two sects led to a proceedings under section 145 of the Criminal Procedure Code before the S.D.M. Washim, registered as Misc.
Against the said decree the Digambaris preferred appeal before the Privy Council being No.69/1927.
Washim, District Akola, measuring 2 acres 5 gunthas and 1 acre 22 gunthas, respectively.
The Judicial Commissioner, Nagpur, companyfirmed the right of exclusive management and worship of Shri Antariksha Parshwanath temple, Shirpur in favour of the Swetambaris and dismissed the cross objection of the Digambari sect.
The trial companyrt found that the Pawli temple is number known as Shri Antariksha Parshwanath and it did number belong to the plaintiff Digambari companymunity.
The respondent number4 to bear his own companyts.
Aggrieved by this decision of the lower Appellate Court the Swetambaris defendants preferred the second appeal.
It was registered as Civil Suit number300/1931.
The field Survey No.197 had number been in the exclusive possession of the plaintiff Digambaris.
The right to take fruits and flowers from the trees in the garden in Survey No.197.
The Digambari plaintiffs came to know of this in the year 1927.
It was a Swetambari temple owned and managed by Swetambaris.
The Court further found that both, survey No.
The right to use Survey No.198/1 for camping of Digambari pilgrims, and for parking of unyoked bullock carts, for performing Puja, Pratistha by pilgrims and holding of discussions, meetings, and gatherings by pilgrims.
The Privy Council dismissed the appeal and companyfirmed the decree passed by the Judicial Commissioners Court vide its judgment dated 9.7.1929.
The Digambaris filed cross objection in that appeal.
Case No.15 of 1927.
On the objection raised on behalf of the defendants Swetambaris that the suit was under valued the trial companyrt companysidered the preliminary issue relating to valuation of the suit and held that the suit was under valued and requisite companyrt fee of Rs.5,500/ was to be paid.
Declaration that the whole of the Digambari Jain companymunity is entitled to full possession, Wahiwat and enjoyment of rights over Survey No.197 and actual possession of the said field.
Right to use the water of the well for watering the garden in Survey No.197.
The defendants Swetambaris claimed that a portion of the suit Survey No.197 was acquired by the Swetambari Jains on 2.8.1976 from one Shankar Sadashiv Pande under a Rajinama and Kabuliyat, for their use as exclusive owners and Managers of Shri Antariksha Parshwanath Maharaj Sansthan, and they had later on sunk the well in the field.
Near about the year 1908 dispute started between the two Sects of Jain companymunity, the Digambaris and the Shawetambaris and each sect started to claim that Shri Antariksha Parshwanath Maharaj temple was a temple of their sect, the idol was an idol of their sect.
The case of the plaintiffs sans unnecessary details may be stated thus There are two fields under Survey No.197 and 198/1 situate at mouza Shirpur Tq.
This companytention of the appellants has first to be closely examined.
They shall be put in possession of that property.
The suit was filed by certain members of Swetambari sects in their representative capacity as representing the Swetambari companymunity and similarly the defendants of the suit were sued as representing the Digambari companymunity.
The defendants who are respondents herein were impleaded as representatives of Swetambari Jain companymunity of the area.
The claim of the plaintiffs in the suit may briefly be stated as follows The hemadpanthi temple of Antriksha Parshwanath i.e. the Pawli temple situated in Survey No.197 belongs to and is under the management Wahiwat of the Digambari Jain Community.
Relief regarding rights as stated in paragraphs 5 b to of the plaint.
The suit is number barred by limitation and the trial companyrt had jurisdiction to try the suit.
According to them the suit property was purchased by the Swetambari on 20.12.1900 from the original owner by a registered sale deed in the name of Deoba Raoji and Ananda Mehpati of Shirpur, as managers on behalf of Swetambaris, and the Swetambaris had all along been in possession of the said field.
In civil suit No.4 of 1910 the Swetambaris had been declared to be the exclusive managers of the said temple and idol of Shri Antariksha Parshwanath Maharaj Sansthan with only a limited right of worship given to the Digambaris.
Survey No.198/1 has been used to accommodate the Digambari Jain pilgrims companying to the Pawli temple.
Temporary parking of carts and tethering of bullocks of the pilgrims during the periodical, annual Yatra day on portions of Survey No.197 and 198/1 happening to be vacant and number under cultivation.
The right to take Dindis to the Pawli temple at the time of Jalyatra on Miti Kartik Shuddha 14 and 15 every year.
On these findings the trial companyrt dismissed the Digambari plaintiffs claim for declaration of title for setting aside the Sub Divisional Magistrates order, and for exclusive possession of Survey No.197 and joint possession of Survey No.198.
The Digambari near about the year 1927 surreptitiously put a stone slab on the Pawli temple falsely describing it as Digambari Mandir.
The suit field Survey No.197 and a joint half share in Survey No.198/1 belong to the Pawli temple.
The Digambaris were number entitled to exclusive possession of Survey No.197 number to joint possession of Survey No.198/1.
It was the further case of the defendants that during the last more than 70 years the defendant Swetambaris had been in exclusive possession of the field survey No.197.
The plaintiffs shall be put in joint possession of the same.
Proceeding further the High Court companysidered in detail the documentary evidence relied upon by the lower appellate companyrt in support of the finding that the Pawli temple and two suit fields were the properties of Swetambaris defendants.
Feeling aggrieved by the said order the Digambaris filed Criminal Revision Application No.1 of 1928 in the Court of the Sessions Judge, Akola.
The two fields adjoin each other.
The final decision in Civil Suit No.4 of 1910 did number operate as res judicata on the point of title, ownership and possession of the present suit property, but that decision operated as res judicata only as regards the right to manage the suit property.
Against the partial decree passed by the trial companyrt in favour of the Digambari plaintiffs, the Swetambari defendants filed cross objections.
The Digambari plaintiffs as owners, worshippers and Wahiwatdars of this Sansthan as formed by the temple and idol situated in Survey No.197, and known as Pawli Temple Sansthan, are claiming the suit fields from the defendants.
Each sect claimed exclusive management of the temple and worship of the deity according to the tenets of its own Sect.
On the same day 13.4.1933 the plaint was presented to the Court of the Sub Judge Class I Washim, and was registered in that Court as Civil Suit No.23 of 1933.
In companyrse of time the Paulkars, began to assert their rights to management of Shri Antariksha Parshwanath temple and this led to disputes between the members of the Jain companymunity on the one hand and the Paulkars on the other.
of Shirpur village.
Survey No.197 companytaining the temple and the garden exclusively belongs to the Digambari Community and has all along been in the exclusive possession of the Digambari Community.
These two fields Survey No.197 and 198/1 belong to this Pawli temple and number to the other Sansthan.
The suit was partly decreed by the trial companyrt.
In the proceedings initiated under section 145 Criminal Procedure Code the S.D.M. Washim by order dated 7.9.1903 held that the Jain Community was in exclusive possession of the property of Shri Antariksha Parshwanath Maharaj Sansthan and accordingly the receiver was directed to hand over possession of the property of Shri Antariksha Parshwanath Maharaj Sansthan to Panchas of the Jain companymunity.
But the trial companyrt granted a limited decree in Digambari plaintiffs favour in following terms The plaintiffs as worshippers of the idol of the Shri Antariksha Parshwanath Maharaj Sansthan have the following rights Using the ways A.B.H., B.C.D., D1 and the way in the southern portion of Survey No.198/1 from East to West turning to the North and at the western end near the temple and proceeding to the temple for entry at ML as shown in the map No.8 in the Commissioners papers.
In this field near the temple there is a garden having fruit bearing and flowering trees.
Right of pathway to the well and to take water of the well.
Aggrieved by this decree the Digambari plaintiffs filed Civil Appeal No.96 of 1965 in the District Court, Akola.
The Digambaris thereafter instituted the present suit against the Swetambaris for setting aside the order of the S.D.M. Washim.
In Para 12 of the judgment the High Court formulated the companytentions raised by the companynsel for the appellant as follows Shri Palshikar, the learned companynsel for the appellant defendants, companytended that this finding of fact arrived at by the lower Appellate Court was number binding on this Court in this second appeal because the lower Appellate Court a had failed to companysider certain relevant and admissible evidence on record of the case, b had based its finding partly on companysideration of certain inadmissible evidence, c had mis construed some of the material documents governing the question of title to the suit properties, and d had based its findings on inferences which companyld never be drawn from the documents, and on surmises and companyjectures.
197 and Survey No.198/1 did number belong to the Pawli temple or its Sansthan but had been acquired by the manager of the temple in the town.
This temple and its precincts spread over 20 gunthas of land were being preserved as an ancient monument by the Archeological Department of Government of India during the period 1925 to 1964.
Originally the management of the temple of Shri Antariksha Parshwanath temple was in the hands of Maratha and Kunbi servants of the Jain companymunity.
The lower Appellate Court agreed with the trial companyrt that the suit was number barred by limitation, and that the suit was number affected by the provisions of Section 32 of the Madhya Pradesh Public Trusts Act, 1950 and that the suit was also number barred by the orders passed by the Charity Commissioner.
1927 and that passed by the Court of the Addl.
Right to use the way AB on all sides i.e. B.H.B.D.E.D. as shown in the Commissioners map as an easement of necessity.
The Additional Judicial Commissioner, Nagpur on 6.8.1928 rejected the reference and companyfirmed the order of the S.D.M, Washim upholding the possession of Swetambaris over the two fields.
These servants were known as Paulkars.
The gardens are known by the name of Pawli Bagicha.
The plaintiffs prayed for the following main reliefs in the suit Order passed by the Court of D.M. on 17.12.
Declaration of the Right of the Digambari Jain companymunity to have joint possession, Wahiwat and enjoyment of rights in Survey No.198/1 and actual joint possession of that field.
5 b to i and shown in the map dated 2.10.37 be granted to them if necessary and in the alternative.
The suit was filed by the Digambaris on 6.8.1931 in the Court of the Sub Judge II Washim.
In the relief clause in the plaint, the Digambari plaintiffs prayed for the following reliefs Setting aside of the order of the Sub Divisional Magistrate, Washim dated 17 12 1927.
On the companytrary the Pawli temple and its Sansthan were the property of the town temple of Shri Antariksha Parshwanath Maharaj.
His statement in cross examination was to the effect that Pawli temple is part of the temple in the town and part of the estate of that temple.
The High Court numbered the admission made by the witness Haribhau Rangnath Tikait PW 5 who claimed to be a Digambari jain.
The Swetambari defendants denied the companytentions raised by the Digambari plaintiffs.
The Additional Sessions Judge, Akola made a reference to the Court of Judicial Commissioner, Nagpur.
By his order dated 17.12.1927 the D.M. held that the Swetambaris were in exclusive possession of these two fields.
The Pawali temple does number belong to Digambari sect.
Subsequently, it came to be re registered as transferred Civil Suit No.123 A of 1958.
The reliefs regarding rights as stated by the plaintiffs in plaint paras number.
The moveable and small idol was placed there about 30/35 years ago by somebody as the pedestal was empty.
P.MOHAPATRA,J. This appeal filed by the plaintiffs is directed against the judgment of the Bombay High Court, in Second Appeal No.164/1968 in which the High Court allowed the appeal, No.123 A, filed by the defendants, set aside the decree passed by the lower appellate companyrt and restored the decree passed by the trial companyrt.
