Mohammad Rafiq, J. - (1.) This appeal has been filed by the defendant-appellants under Section 100 of the Code of Civil Procedure , 1908 against the judgment & decree dated 18/3/1989 passed by the Court of learned Additional District & Sessions Judge No.6, Jaipur City, Jaipur whereby, the judgment dated 7/5/1970 passed by the Court of learned Additional Munsif Magistrate No.1, Jaipur City, Jaipur was reversed and the suit was decreed.
(2.) When this appeal was admitted for hearing on 4/8/1989, following substantial questions of law were framed by this Court:- 1.Whether the Pujari-ship of the temple is a property capable of inheritance? 2.Whether in the facts and circumstances of the case, Pujari-ship of Thakurji Maharaj Sitaramji located at Ghat Gate, Jaipur was not hereditary and the descendants had no right to perform Puja of deity as 'pujari' by rotation? 3.Whether the plaintiffs' suit was barred by limitation? 4.Whether the suit filed by the plaintiffs was not maintainable without claiming possession in respect of their term of performing Seva Puja of the Temple of Thakurji Maharaj Sitaramji as pujari?
(3.) Facts of the case briefly stated are that plaintiffs-respondents Kishan Chandra and Gopi Chand jointly filed a suit for declaration of right of worshipping the deity of Mandir Thakur ji Maharaj Shri Sitaram ii situated at Agra Road, Near Ghat Darwaja, Jaipur and injunction against original defendant-Satya Narain, who was father of the present appellants and one Saligram S/o Shri Suraj Bux. Defendant-Satya Narain has been substituted by the present appellants as legal representatives during pendency of the first appeal. Salig Ram also expired during pendency of the suit and therefore his name was deleted. According to the plaintiffs, Kishan Chandra & Gopi Chand were real brothers of defendant-Satya Narain. Their father Shri Gheesilal expired on 3/5/1939. After his death, Satya Narain being eldest son, maintained the joint hindu family property. Plaintiffs at that time were minor and did not have requisite certificate from the devasthan department to act as pujari. Defendant-Satya Narain therefore used to perform the seva puja on behalf of the whole family during their 'Osra' (turn). A family settlement was arrived at between the members of family on 12/1/1957. Kashi Nath was originally appointed as priest (pujari of temple). He had four sons namely; Laxmi Narain, Chunnilal, Suraj Bux and Gheesilal. Thus, each one of them got 'Osra' of one year in turn. This is how they were entitled to receive the rent from the tenants of the shops of the temple and offerings received from devotees. Details about offerings of seven years were also given in the plaint. No mention was made in the family settlement of division of 'Osra' because right of worshipping was not a divisible right. Defendants-Satya Narain & Radha Mohan, who is father of defendant No.2 Ram Ratan, and the plaintiffs, who were four sons of Gheesilal and therefore each one of them were entitled to 'Osra' of three months within one year, that came to the family of Gheesilal. Defendant-Satya Narain despite the fact that plaintiffs have procured certificate from the devasthan department for seva puja, did not allow them to do so. Plaintiffs submitted an application before the Assistant Commissioner of Devasthan, Jaipur, who vide order dated 17/3/1958 observed that though the plaintiffs appear to be entitled for share but this issue should be decided by the civil court and rejected the application. Plaintiffs there against approached the Commissioner Devasthan by filing appeal, which was dismissed vide order dated 9/3/1959. Plaintiffs could not have filed the civil suit without availing statutory remedies before the aforesaid authorities, which constituted a special tribunal. It was thereafter that the combined 'Osra' of the plaintiffs and the defendants, all four sons of deceased Gheesilal, fell due from 6/8/1961 to 5/8/1962. Defendant-Satya Narain had his 'Osra' of three months within one year from 6/8/1961 to 5/11/1961. Thereafter, he continued to perform the seva puja with Ram Ratan, minor son of Radha Mohan, with the consent of his mother, who was his natural guardian. When however the 'Osra' of plaintiffs began from 6/2/1962, defendant-Satya Narain declined permission to them to perform the seva puja. Right to worship therefore accrues to the plaintiffs on that day and the suit was thus filed within the period of limitation as per Article 133 read with Section 30 of the Limitation Act.;