- (1.) THIS second appeal under Section 100 CPC is directed against judgment and decree dated 07.11.2006 passed by Additional District Judge No.1, Bhilwara, whereby, the appeal filed by the appellants against judgment and decree dated 25.03.2004 passed by Civil Judge (Junior Division), Kotadi, District Bhilwara has been dismissed.
(2.) THE facts in brief may be noticed thus : the respondents filed a suit for declaration and permanent injunction against the appellants, inter alia, with the averments that there is a temple of Murti Bihari Ji Maharaj at village Rased, whose Pujaries were plaintiffs' ancestors and presently the plaintiffs; the Khudkast land of the said idol was situated at village Rased, which was being cultivated by the plaintiffs' ancestors in return for the Sewa Puja and the income was being utilized for Bal Bhog in the temple; it was claimed that as per orders of the State Government, the names of the Pujaries have been deleted from the Khudkast lands of the temples and, therefore, the defendants are interfering in the Sewa Puja of the temple and are intending to take forcible possession, therefore, a declaration was sought that the plaintiffs be declared as Pujaries of the temple and that the defendants have no right to interfere in the Sewa Puja of the temple; injunction was sought that the defendants be restrained from interfering in the Sewa Puja and utilizing the agricultural lands. An application under Section 151 CPC was filed by the defendants, which was rejected by the trial court and whereafter 54 opportunities were granted to file the written statement; however, the same was not filed and consequently, the opportunity to file written statement was closed and the matter was fixed for the evidence of the plaintiffs, wherein, statements of PW -1 were recorded and as no one was present on behalf of the defendants to cross -examine, the same was closed; whereafter, an application under Order XVIII, Rule 17 CPC was filed, which was rejected by the trial court, whereafter, three witnesses were examined, who were cross -examined by the defendants and the evidence was closed reserving the right of rebuttal; the suit was fixed for evidence of defendants, however, the defendants were not present and the counsel pleaded no instructions and, therefore, the suit was ordered to be proceeded under Order XVII, Rule 2 CPC.
(3.) AFTER hearing the parties, the trial court partly decreed the suit ex parte and declared that the plaintiffs were hereditary Pujaries of the temple and the defendants have no right to interfere with the said right and the right to cultivate the agricultural land; the prayer regarding permanent injunction was rejected. Feeling aggrieved, the plaintiffs and the defendants both filed appeals.;