Decided on August 19,1948

Ambika Dutt Respondents


Ramaswami, J. - (1.) THIS appeal concerns two temples known as "Jora Mandir" founded and endowed by Bakshi Bhagwat Lal in the town of Arrah, The plaintiff brought the suit alleging that Bakshi Bhagwat Lal had endowed the properties mentioned in Schedule A of the plaint and had appointed Pandit Aditnath Misser as hereditary mutwalli and Pujari. After the death of Aditnath his son Loknath filled the office. Thereafter Loknath's sons Mahadev and Mahanand agreed that they would remain Mulwalli and Pujari in rotation for one year each. The plaintiff is the grand -son of Mahadev but the defendants had refused to permit the plaintiff to work as Mutwalli and Pujari in his turn. Plaintiff hence asked for partition of "his right of worship in the temple and offerings". Defendant 1 resisted the plaintiff's claim. He denied that Bakshi Bhagwat Prasad appointed Adinath Misser as Pujari. Bakshi Bhagwat Prasad himself acted as mutwalli in his lifetime. He appointed one Reoti Raman Misser as Pujari on whose death Loknath, Mahadev and Gouri -shankar became successive pujaris. The defendant denied that there was any arrangement between Mahanand and Mahadeo for rotation of office of pujari. The defendant affirmed that the surplus offerings were not utilised for the personal use of the Pujari. But the entire income was exclusively utilised for the rajbhog and other purposes of the temple. The defendant declared that the plaintiff was incapable of performing the work of a pujari. Defendant stated that there had been two previous partition suits in which the plaintiff did not claim partition of the office of pujari or offerings. The defendant hence claimed that the plaintiff's suit was barred by constructive res judicata.
(2.) THE Subordinate Judge held that the plaintiff failed to prove that Aditnath Misser was ever appointed Pujari and mutwalli; and that there had been any arrangement between Mahadeo and Mahanand to work as mutwalli or Pujari by rotation. The Subordinate Judge accordingly dismissed the plaintiff's suit. In appeal the District Judge reversed these findings. He held that "the first or second mutwalli and pujari of the temple was Pandit Aditnath Missir; that the members of the family of Aditnath used to work as mutwalli, and pujari of the dedicated properties and as such the right to work as mutwalli and pujari was heritable among the family members of Aditnath." The District Judge found that the suit was not barred by constructive res judicata. Accordingly he granted the plaintiff a decree for partition, in other words, that plaintiff and defendant 1 will work as "mutwalli, manager or pujari" by rotation for one year each.
(3.) AGAINST this decree defendant 1 has preferred this appeal.;

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