High Court
Legal Reasoning
1 sa 190.95IN THE HIGH COURT OF JUDICATURE AT BOMBAYBENCH AT AURANGABADSECOND APPEAL NO. 190 OF 1995WITHCIVIL APPLICATION NO. 1335 OF 1997Ghanshyam S/o Sudam Gaikwad,Since deceased through his L.Rs.i)Baban S/o Ghanshyam Gaikwad,age Major, Occu. : Service,R/o Yarmala, Tq. Kallam,Dist. Osmanabad.ii)Bhagwat S/o Ghanshyam Gaikwad,Age : Major, Occu. : Service,R/o Latur.iii)Roopdas S/o Ghanshyam Gaikwad,Age : Major, Occu. : Labour,R/o Yermala, Tq. Kallam,Dist. Osmanabad.iv)Dattatraya S/o Ghansyam Gaikwad,Age : Major, Occu. : Pujari,R/o as above... AppellantsVersus1.Dasa S/o Daji Kambale,Age : 58 Years, Occu. : Labour,Resident of Ermala, Tq. Kallam,Dist. Osmanabad,Since deceased through his L.Rs.1/i)Sampat S/o Dasa Kamble,1/ii)Baba S/o Dasa Kamble, 2 sa 190.951/iii)Uttareshwar S/o Dasa Kamble,1/iv)Ramesh S/o Dasa Kamble,1/v)Mandabai W/o Dasa Kamble,All R/o Yermala, Tq. Kallamb,Dist. Osmanabad.2.Yadav Limba Kambale,Age : 53 Years, Occupation andResident of as above... RespondentsMrs. M. A. Kulkarni, Advocate for the Appellants.Ms. P. S. Talekar, Advocate i/by Talekar and Associates for the Respondent Nos. 1/iii and 1/iv.Appeal stands abated/dismissed as against Respondent Nos. 1/ii and 2.CORAM :SHAILESH P. BRAHME, J.CLOSED FOR JUDGMENT ON:14.07.2025JUDGMENT PRONOUNCED ON:17.07.2025JUDGMENT :-.Heard both sides.2.Being aggrieved by judgment and decree dated 30.07.1994passed by the Trial Court in R.C.S. No. 111 of 1986 dismissingthe suit, which is further confirmed by judgment and decreedated 20.04.1995 passed by the lower Appellate Court in R.C.A.No. 240 of 1994, appellant/original plaintiff has preferred presentsecond appeal. The suit for declaration and injunction was filedstaking claim as Pujari or Archakship of Matangdevi, a deity,
Legal Reasoning
3 sa 190.95which is located at Yermala, Tq. Kallamb, Dist. Osmanabad.3.Present appeal is admitted stating that the status ofplaintiff as Pujari of the temple is a substantial question of law.By way of written arguments submitted by the learned counselfor the appellant further substantial question of law stated inpara No. 3 of the submissions are pressed into service. Learnedcounsel for the respondent did not object for consideration offurther substantial question of law and she readily addressedthose questions also. Parties are ready to go for final hearingwithout any further substantial question of law.4.It’s a case of the appellant – plaintiff that he isPujari/archak of Matangdevi, which is hereditary right. Sincehis forefathers he is conducting the puja and collecting offeringsof the deity. It is contended that plaintiff and his forefathers arerendering services of maintenance of temple, cleaning andlightening since last 80 years. He is being obstructed by therespondents unauthorizedly and he was constrained to file suitfor declaration and injunction. 5.The respondents/defendants contested the suit denying theclaim of the appellant. It is contended that plaintiff had no rightto collect any offerings and he was not concerned with the deity.The deity is located in temple of Yedeshwaridevi. The defendantmaintains and looks after Yedeshwaridevi as well as Matangdeviand receives the offerings. 4 sa 190.956.Parties went on trial by examining three witnesses each.Both the Courts below recorded findings that no evidence wasproduced by the appellant to show that he or his forefathers wereentrusted with work of archakship. The certificates at Exhibit45 and 48 are discarded by the Courts below. It is further heldthat P.W. No. 2 – Shankar gave vital admissions againstappellant/plaintiff. It is further held that case of the defendantsappears to be probable. Lower Appellate Court further held thatcustom could not be proved by the appellant.7.Learned counsel for the appellant submits that there isinterim relief in favour of the appellant since 1995 andcontinuously he was working as Archak till his lifetime and thework is continued by his heirs. It is submitted that a trust isformed of the Matangdevi temple and the certificate has alsobeen issued by the trust in favour of the appellant.8.Learned counsel Mrs. M. A. Kulkarni for the appellantsubmits that the appellant has better claim than the respondentsand is continuously working as archak since eighty years. It isfurther submitted that certificates at Exhibit 45 and 48 arewrongly discarded by the Courts below. Those would prevail.She would further submit that so called admissions of the P.W.No. 2/Shankar are inconsequential. It is vehemently submittedthat P.W. No. 3-Tukaram, who happens to be sarpanch at thetime of filing of the suit has corroborated the appellant’s case, 5 sa 190.95which is not appreciated. The written statements are alsopressed into service to make out a point that both the Courtsbelow ought to have decreed the suit.9.Per contra, Ms. Pradnya Talekar, learned counsel for therespondent Nos. 1/iii and 1/iv submits that burden was on theappellant being plaintiff to show that there was any such customin the family of the appellant and archakship was the hereditaryright. No evidence has been placed on record. The witnessesP.W. No. 1 and 3 are interested. Both the Courts below haverightly discarded certificates at Exhibit 45 and 48. It issubmitted that there is no trust and Matangdevi does not fallunder any trust of Yedeshwaridevi. She supports impugnedjudgments and decrees. It is contended that admissions given byP.W. No. 2 are rightly appreciated and detrimental to theappellant’s claim.10.Having considered rival submissions of the parties andhaving gone through the substantial questions of law, the issueneeds to be addressed as to whether appellant proves that he isarchak of Matangdevi, being a hereditary right.11.Appellant is relying on certificate at Exhibit 45 issued bythe P.W. No. 2 – Shankar, the then sarpanch. It is stated in thecertificate that appellant looks after maintenance, cleaning andarchana of Matangdevi and the services are being rendered sincehis forefathers as they belonged to Mahar community. It is not 6 sa 190.95understood as to in what capacity sarpanch issued saidcertificate. The village panchayat has no role to administerMatangdevi. The sarpanch cannot have right to declareanything like that. There is no material to show thatMatangdevi temple is part of any trust, which is being lookedafter by village panchayat or sarpanch. The Trial Court hasrightly discarded Exhibit 45 by assigning plausible reasons thatit was issued at the say of appellant’s son, who happens to bedriver on the vehicle of District Superintendent of Police.12.Further reliance is placed on Exhibit 48 issued by P.W. No.3 – Tukaram, who is also sarpanch. The probative value of thisletter is also suspicious. It is incomprehensible as to in whatcapacity the certificate has been issued. Both the Courts belowhave rightly discarded certificates at Exhibit 45 and 48. I find nomerit in the submissions of Mrs. M. A. Kulkarni, learned counselfor the appellant that certificates corroborate appellant’s claim.13.I have considered cross examination of P.W. No. 2 –Shankar. He has given vital admissions damaging theappellant’s claim. He was sarpanch since 1969 to 1979. Heclearly admitted that certificate Exhibit 45 was issued by him atthe say of appellant’s son and in fact Puja was being performedby the defendants. He has further admitted that appellant didnot qualify to be archak as against that the defendantundertakes the work carrying of cattle. Plaintiff’s own witnesshas deposed against him, which cannot be overlooked. It cannot 7 sa 190.95be countenanced that documentary evidence would prevail overdeposition of P.W. No. 2 – Shankar. Both the Courts below haverightly appreciated his evidence.14.I have also considered the findings of Courts below andevidence of P.W. No. 3. Nothing substantial revealed from hisdeposition to corroborate the appellant’s claim. Appellant hasmiserably failed to prove that archakship is hereditary right ofhis family. Some cleaning and sweeping the temple and residingin the vicinity of the temple would not take his case any further.There are no pleadings and supporting evidence for making out acustom or hereditary right. Lower Appellate Court has rightlydealt with this aspect of the matter. In the absence of anytangible and convincing evidence, I do not find that appellant issuccessful in making out his case.15.Both Courts below have recorded concurrent findings offacts. The reasonings are plausible. No case is made out to causeany interference. Although it is contended that Matangdevi hasbecome part of the trust, but this is not corroborated by anyevidence. Though by interim orders appellant till his lifetimeand thereafter his heirs continued to perform Puja, does notmean that they succeeded in establishing the custom orhereditary right. There is evidence to show that even therespondent was also performing puja.16.I find no merit in the substantial question of law. Second 8 sa 190.95appeal is devoid of merits. Same is dismissed. Needless to statethat interim relief granted earlier stands vacated. There shall beno order as to costs.17.The civil application stands disposed of. [ SHAILESH P. BRAHME J. ] 18.After pronouncement of the judgment, learned counsel forthe appellant prays for continuation of the interim relief.Learned counsel for the respondent opposes the prayer. 19.As the interim relief is in operation, I find it fit to continueit for further period of four (04) weeks from today. However, itshall stand vacated on lapse of four weeks without reference tothis Court.[ SHAILESH P. BRAHME J. ] bsb/July 25