- (1.) This civil second appeal preferred by appellantplaintiff Manohar Lal is directed against the judgment and decree dated 25.05.2009 passed by learned Additional District Judge, Nathdwara, District Rajsamand in Civil Appeal No.11/2007, whereby the learned first appellate court dismissed the appeal of the appellant-plaintiff and affirmed the judgment and decree dated 30.03.2007 passed by learned Civil Judge (Senior Division), Nathdwara in Civil Original Suit No.40/2005, whereby the learned trial court dismissed the suit of the appellant-plaintiff for permanent injunction.
(2.) The brief facts of the case are that the appellantplaintiff instituted a suit for mandatory and permanent injunction against the respondent-defendants on 20.06.2002 stating inter alia that in the temple of Shrinathji, in Dholipatiya upon present library on the third floor 13 rooms and 1 room on the fourth floor belongs to the grandmother of the plaintiff and the mother of the respondent No.2 Smt. Gomti Bai wife of Jethanand and this property was in possession of Smt. Gomti Bai since 1932. Smt. Gomti Bai died on 15.01.1990. It was further averred that the respondent No.2 is an adopted son of Smt Gomti Bai and in the rooms of the aforesaid property, luggage of respondent No.2 is lying and lock was also put on the gates of those rooms and the respondent No.2 has also taken electricity and water connections over this property and after the death of Smt. Gomti Bai, plaintiff and the respondent No.2 have equal right, title and interest over the suit property. It was further averred in the plaint that after the death of Smt. Gomti Bai in 1990, the respondent No.1 with the help of his officers, employees and armed guards of Shrinathji taking the law in their hands and without following the due process of law with a view to dispossess the plaintiff from the suit property put a lock on the suit property on which the lock of the plaintiff was already lying. Being aggrieved by the illegal action of the respondent No.1, the respondent No.2 filed a suit for mandatory and permanent injunction and the trial court issued temporary injunction directing the respondent No.1 to immediately remove the lock and further not to interfere in the use and enjoyment of the property of the plaintiff and the respondent No.2. Being aggrieved by the said injunction order, the respondent No.1 preferred an appeal, which too was dismissed and the appellate court affirmed the injunction order. In that suit, Commissioner was also appointed, who submitted his report. Thereafter by order of the court, respondent No.1 removed the lock put by him on the suit property. In this manner the possession of the respondent No.2 and the plaintiff over the suit property is going on continuously since then. It was further averred that during the pendency of the above suit, the respondent No.1 told the respondent No.2 and the plaintiff that they will not dispossess the respondent No.2 and the plaintiff from the property in question.
(3.) The defendant-respondent No.1 resisted the plaint by filing written statement and denied the averments contained in the plaint. It was averred that after the death of Smt. Gomti Bai, there is no possession of the plaintiff and the defendant No.2 over the property in question. It was further averred that in 1932 Shri Goverdhan Lalji Maharaj gave this property to Smt. Gomti Bai for the use and enjoyment for the period of her lifetime. After that Nathdwara Mandir Mandal Act, 1959 came into existence and the defendant No.1 became the owner of the suit property because the management of the temple property is vested in the defendant No.1. It was further averred in the written statement that the defendant No.1 has no knowledge about the defendant No.2 having been adopted by Smt. Gomti Bai. It was further averred that Smt. Gomti Bai wrote the document Ex.1 in favour of Shri Goverdhan Lalji Maharaj to the effect that the suit property will remain in her possession till she is alive and she will live in that property and when her hundred years will complete, that house and cash will go to Shrinathji and there shall be no interference of anyone in that property. Further the defendant No.1 denied the factum of dispossession of the plaintiff and the respondent No.2 forcibly. It was also averred that Bheru Lal Teli, agent of the defendant No.2 Dwarka Dass, handed over vacant possession of the suit property to the defendant No.1 and Ex.1 is only a licence and from a licence deed, the defendant No.2 and the plaintiff have got no right, title or interest whatsoever in the suit property on the basis of adoption. It was also averred that without possession over the property in question, the suit for mandatory injunction is not maintainable.;