Mohammad Rafiq, J. - (1.) THIS is plaintiff's second appeal assailing the judgment & decree dated 14/8/2008 passed by learned Additional District & Sessions Judge (Fast Track) No. 3, Ajmer Camp Kishangarh whereby, he partly allowed the appeal and modified the judgment and decree dated 10/1/2002 passed by the learned Civil Judge (Junior Division), Kishangarh, District Ajmer by which, the trial court decreed the suit in favour of the plaintiff -appellant. The plaintiff -appellant filed a suit for permanent injunction with the averments that there is a house of his father -in -law Shri Kalyan Dass, in village Ralawata, Tehsil Kishangarh, District Ajmer. The said house is more than 100 years old. After the death of father -in -law, the aforesaid house was partitioned in family settlement amongst his three sons namely; Govind Narain, Prahlad and Radhey Shyam and they are in possession thereof. Along with the plaint, a map was also filed by the plaintiff, stating that the area shown by red colour came in the share of husband of the plaintiff and after partition, the plaintiff and her husband incurred huge expenses in making construction over the said house and they are residing therein since long. It was further stated in the plaint that the area shown by red colour in the annexed map is being used by the plaintiff and her husband since the time of their ancestors. No other person has any concern with that part of the aforesaid property. Thus, the plaintiff and her husband became absolute owner of the property in dispute on the basis of adverse possession. It was further pleaded in the plaint that in the registered patta, the part of the property shown by the red colour has been shown as adjoining part. Towards the southern side of the part shown in red colour, there is a temple of Bhagwan Janki Vallabh Ji and in the aforesaid temple, the defendants have also spent some amount in construction thereof. The Seva Pooja of the temple Shri Janki Vallabh Ji is being done by the plaintiff and his brothers since the time of their ancestors. It was further pleaded in the plaint that on "x" point marked in the map, there is a small door to enter in the temple and the plaintiff and her husband used this door for Seva Pooja in the temple. The door was constructed by them by breaking the wall of their house, which is a private door. It was further mentioned in the plaint that defendants threatened the plaintiff that they will destroy the wall and the door, which opens in the temple and thereafter will raise construction in the temple. The plaintiff prayed in the suit that defendants have no right to remove the wall situated in the southern side of her house therefore the defendants be restrained from permanent injunction from removing the wall in dispute and further raising construction after removing the wall. It was also prayed that the defendants should be restrained from closing the door, which opens in the temple in the southern wall of his house as well as obstructing the plaintiff and her husband in using the aforesaid door and wall.
(2.) THE defendants filed written statement stating therein that the house in question is not the property of father -in -law of the plaintiff but in fact it is a property of the temple. Previously, there was no house behind the temple but due to intervention of the Gram Panchayat, later on the house situated behind the temple was given to Go Mukhi Temple; therefore the door of the residential house of Pujari was got opened towards the eastern side to facilitate entry of the Pujari. Neither any family settlement was arrived at nor the defendants have any right to partition the property of the temple. Therefore, the plaintiff has no vested right, title and interest in the property of the temple merely on the basis of adverse possession because plaintiff in fact is not the owner of the property in question as the property belongs to the temple. The portion of the house situated backside was not purchased by the plaintiff through any registered sale -deed The plaintiff wants to sale the property of the temple, for which she has no right. It was further stated in the written statement that father of Shri Pratap Singh namely; late Shri Kalyan Singh was Thikanedar of village Ralawata. The temple is a public temple of the village, which came into existence prior to Thikana Ralawata. As the temple is a public property, therefore, the suit filed by the plaintiff claiming one part thereof as her property, is not sustainable under Order 1 Rule 8 CPC. As the father -in -law of the plaintiff was doing the seva pooja of the temple, the property adjoining thereof was given to the plaintiff for residence. The nature of possession of the plaintiff was that of a licensee and not the owner. The suit therefore be dismissed. On the basis of the pleadings of the parties, the learned trial court framed as many as seven issues, decided all the issues in favour of the plaintiff and decreed the suit of the plaintiff vide judgment and decree dated 10/1/2002. The defendants filed appeal there against before the first appellate court. The first appellate court partly allowed the appeal vide judgment and decree dated 14/8/2008 and modified the judgment and decree of the trial court dated 10/1/2002 restraining the defendants by way of permanent injunction from interfering in the use and possession of the plaintiff except by due process of law and with this modification, set -aside the judgment and decree of the trial court dated 10/1/2002.
(3.) SHRI Ajay Gupta, learned counsel for the plaintiff -appellant argued that the learned first appellate court has erred in law while deciding Issue No. 1 against the plaintiff and giving finding that plaintiff failed to prove her entitlement to open the door directly into the temple premises. The learned first appellate court has arbitrarily reversed the well reasoned finding of the trial court on Issue No. 1. The appeal therefore be allowed.;