BALI, J. - (1.) WHAT started of as pure and simple dispute between late Prakash Chandra Swami and the Government of Rajasthan in the matter of Mandir Madho Behariji, Station Road, Jaipur to be a government Supurdgi Class temple or Thikana temple has now petered out to be a pure and simple dispute of managing Mandir Madho Behariji which takes in its sweep succession to the properties as well between the heirs of Prakash Chandra Swami. It is conceded at all ends that in the temple in dispute, there are offerings made by the people in general and in addition to that there is considerable income which is received by those who are managing the properties in the shape of rentals for several houses and shops attached to the temple.
(2.) THE first and foremost question that needs determination in the present special appeal filed under Sec. 18 of the Rajasthan High Court Ordinance, 1949 is as to whether a dispute of the kind as mentioned above could be allowed to be converted into a succession dispute inter se members of the family of Prakash Chandra Swami. With a view to determine the issue as framed even though the learned Single Judge has given the facts succinctly, the same would need reiteration. Prakash Chandra Swami son of late Tota Ram Swami, Mandir Sri Madho Behariji, Station Road, Jaipur filed an application u/sec. 17 (2) of the Rajasthan Public Trusts Act, 1959 (hereinafter referred to as `the Act' ). The matter was enquired into and it was registered as a public trust on 21. 12. 1970 by Devasthan Department. Against the order aforesaid, Commissioner, Devasthan Deptt. ordered further enquiry. In compliance of the said order, show cause notice was issued. Mahant Shri Prakash Chandra Swami did not file any reply even though he placed on record some documents. Attention of the learned Assistant Commissioner Devasthan was drawn to the provisions of Sec. 29 of the Act and it was urged that under the said provisions, the Assistant Commissioner could conduct further enquiry only if the property was left out to be registered or any particular was left to be enquired into and not otherwise. It was further urged that under the provisions contained in Sec. 21 of the Act, registration of the Trust in dispute had already been done after following entire procedure as contemplated in the provisions of the Act and there was no legal provision providing for further enquiry into the matter to reconsider the case in which certificate of registration under Rule 19 has already been issued. Prayer was thus made not to hold any further enquiry. Learned Assistant Commissioner vide his order dated 21. 7. 1980 held that at the time of registration of Mandir Shri Madho Behariji, entire legal procedure was followed and all the documents perused and then registration was done, which would leave no room for any re- enquiry. It was further held "so far as the question of declaring the Thikana Shri Madho Behariji after re-enquiry as of Supurdgi category is concerned, I am at conclusion that until the Rajasthan Government does not withdraw its order declaring that the Mandir is not of Supurdgi category, till then declaring the Mandir of Supurdgi category is not justified. Notice u/s. 24 of the Act was quashed. Inspector, Devasthan Deptt. Jaipur preferred an appeal against the order passed by the Assistant Commissioner dated 21. 7. 1980 and the Commissioner, Devasthan Deptt. vide order dated 26. 10. 1981 (Annex. 17) allowed the same and set aside the order passed by the Assistant Commissioner. Before so ordering, it was held "under orders of erstwhile Maharaja Man Singh of Jaipur State the disputed Mandir was entrusted to ancestor of respondent No. 1 Shri Totaram by appointing him hereditary Mahant for Sewa Puja as per procedure on customary basis and for security of property of the mandir. Therefore, inquiry by the Assistant Commissioner is required as to whether Sewa Puja is being performed by the respondent No. 1 himself or not and telling rosary is being done in the name of Shriji or not. If as per the conditions on which the mandir was entrusted, according to them if Sewa Puja and security of estate of mandir by the respondents No. 1 is not being done, then after inquiry, the Assistant Commissioner is required to initiate proceedings to resume the mandir and its estate. " By virtue of judgment rendered by the Commissioner dated 26. 10. 1981 notice issued to Prakash Chandra Swami for enquiry as mentioned above was revived. Aggrieved of the order dated 26. 10. 1981 (Anx. 17), Prakash Chandra Swami filed S. B. Civil Writ Petition No. 1008/1982 under Articles 226 and 227 of the Constitution of India. The prayers made in the petition read as under: "the petitioner, therefore, prays that Your Lordships will be pleased to issue a writ of Certiorari, mandamus, quo warranto or any other appropriate writ, direction or order setting aside all proceedings before the Respondents No. 2 and 3, including order dated 26. 10. 1981 of Respondent No. 3, Devasthan Commissioner, Rajasthan Udaipur, passed in appeal No. 23/98 against the petitioner in exercise of the powers u/s. 24 of the Rajasthan Public Trust Act and it may kindly be declared that the temple of Thakurji Shri Madho Behariji is a Thikana Temple and not a Supurdgi temple and the petitioner is the Sole Trustee and hereditary Mahant thereof, in his own rights and thus entitled to manage, deal with and possess whole of the income and endowment property of the said Temple of Thakurji Shri Madho Behariji situated at Station Road Jaipur; and also order that all or any entries in official records made in pursuance to the judgment of respondent No. 3 be cancelled and suitably amended or altered; (b) That a writ of prohibition or any appropriate writ direction or order may kindly be issued restraining respondents from interfering in the administration, management and possession of Temple and other properties of Thakurji Shri Madho Behariji and further prohibiting respondents not to take any action against the petitioner in any manner of whatsoever nature it may be and not to disturb the status of hereditary Mahant of the petitioner. (c) That an appropriate writ, direction or order may kindly be issued restraining respondents not to add, alter, amend or to effect any change in the entries in the Register kept in the office of Respondent No. 3 under the provisions of Rajasthan Public Trust Act or under any other law. (d) That any other writ, direction or orders granting appropriate relief in the facts and circumstances of the case which Your Lordships consider fit in favour of the petitioner in the facts and circumstances of the case may kindly be issued. (e) Costs of writ petition may kindly be awarded to the petitioner. " Prayer made in Clause (a) reproduced above would thus manifest that the writ was filed against order dated 26. 10. 1981 and in consequence of the setting aside of said order, it was further prayed that temple of Thakurji Shri Madho Behariji be declared to be a Thikana Temple and not a Supurdgi temple and further that the petitioner was the Sole Trustee and hereditary Mahant thereof in his own rights and thus entitled to manage, deal with and possess whole of the income and endowment property of the said Temple. Prakash Chandra Swami died during the pendency of writ petition on 27. 12. 1986. On 23. 2. 1987, Mahesh Chandra Swami and Vijay Laxmi, son and daughter respectively of the deceased petitioner, filed an application under Order 22 Rule 4 CPC for substituting them as legal heirs of the deceased petitioner. On 26. 3. 1987, Harish Chandra Swami, the only surviving son of late Tota Ram and brother of the deceased petitioner along with Umesh Chandra Swami, Dinesh Chandra Swami and Subhash Chandra Swami other three sons of late Ramesh Chandra (another son of Tota Ram and brother of deceased petitioner Prakash Chandra Swami) moved an application under Article 226 of the Constitution of India read with Sec. 151 CPC for impleading them as parties to the writ petition. In their application, they reproduced the subject matter of two old stone inscriptions having been put in the temple premises and alleged that from the said inscriptions together with Sanad (Anx. 2) dated 15. 4. 1947 it was fully established that temple of Shri Madho Behariji and other `darobast' properties together with shops was private having been gifted to their ancestor late Shri Totaram from generation to generation. They further claimed that there was a joint family consisting of legal heirs of late Shri Totaramji and as such they continue to be in possession of different portions of the said temple and properties having equal and common interest in the temple and the property. They also annexed with the application pedigree of the family and alleged that after the death of Totaram, his eldest son (deceased petitioner) was `karta' of the family and as such, with the consensus of all, he was asked to perform the functions of Mahant as his other two brothers were in the legal profession. Mahesh Chandra Swami and Vijay Laxmi, son and daughter respectively of deceased petitioner, opposed this application and in their reply even though they admitted existence of inscription Nos. 1 and 2 as also the origin of the temple and the properties having been constructed by late Maharani Tanwarji wife of late Maharaja Madho Singhji it was however pleaded that it was a `state Grant'. They further pleaded that their father- deceased petitioner became mahant of the temple by virtue of order dated 6. 4. 1951 which they claimed was an order passed under the Jaipur Matami Rules and under the law of primogeniture. They denied rights of other set of legal heirs of Prakash Chandra Swami named above in the temple and the properties. It was also pleaded that the aforesaid set of legal heirs had no locus standi and were not entitled to succeed to the temple and properties under the Hindu Succession Act after the death of their father and prayed for dismissal of the application filed by them. Along with the reply, they annexed certified copy of the application submitted by the deceased petitioner for registration of the temple as document No. 1 dated 21. 12. 1970 in which the mode of succession was mentioned in column 4 and in accordance with Hindu Law, in column 6, the income was stated as Rs. 6412/- out of which Rs. 6,375/- was from Devasthan Department and Rs. 37/- was as `offerings'. Vide orders dated 15. 7. 1987 the court allowed both the applications. Whereas son and daughter of deceased petitioner Prakash Chandra Swami were arrayed as party petitioners, the other set of legal heirs named above were arrayed as respondent Nos. 5, 6, 7 and 8.
(3.) STATE of Rajasthan, Assistant Commissioner Devasthan, Commissioner Devasthan and Inspector Devasthan Deptt. who were respondent Nos. 1, 2, 3 and 4, filed reply and also annexed therewith Annexure R-1 copy of the Rajasthan Rajpatra dated 25. 6. 1981 wherein at S1 No. 30 the temple of Madho Behariji of Maaji Sahib Tanwarji duly figured amongst as many as 62 temples declaring all those temples as `state Supurdgi Temples'. This notification was issued by respondent No. 3 who had passed order (Annexure-17 ). Arguments were raised for supporting and sustaining the order (Anx. 17 ). The findings recorded by respondent No. 3 to the effect that the said grant amounted to `entrustment' i. e. `the Supurdgi by the STATE' and that the temple and the properties vest in the STATE Govt. were supported. It was prayed in the ultimate analysis that the properties were not liable to be registered under the Act. From the respective pleadings of the parties as reproduced above, it would clearly emerge that petition under Article 226 of the Constitution of India was filed by Prakash Chandra Swami seeking to set aside order dated 26. 10. 1981 (Anx. 17 ). On the application made by him under Rule 17 (2) of the Rajasthan Public Trust Rules, 1962 (in short `the Rules') the temple was registered as a public trust on 21. 12. 1970 by Devasthan Department. This order was upheld by the Assistant Commissioner Devasthan PUrsuant to show cause notice that was issued to Prakash Chand Swami who in turn challenged the said order with the result already indicated above. While passing the impugned order (Anx. 17) dated 26. 10. 1981 the Commissioner observed that the disputed temple was entrusted to the ancestor of respondent No. 1 Totaram by appointing him hereditary Mahant for Sewa Puja and therefore, enquiry by the Assistant Commissioner was required. After enquiry the Assistant Commissioner, it was observed, was required to initiate proceedings to resume the temple and its estate. The only question that thus was required to be decided by the learned Single Judge was as to whether order dated 21. 12. 1970 registering the temple as a public trust and which order was confirmed by the Assistant Commissioner and set aside by the Commissioner Devasthan, was valid or not. In the context of controversy it might have been necessary to decide as to whether the temple was a Thikana or Supurdgi. Learned Single Judge before whom the matter came for final decision, however, on the respective pleadings and contentions raised by the State and two sets of legal heirs framed the following questions for determination:- (i) The nature and the status of the temple and the properties; (ii) The devolution and vesting of the temple and its shevaitship as well as other properties; (iii) Legality of the impugned order dated 26. 10. 1981 (Annex. 17) passed in appeal by respondent No. 3; (iv) The preliminary objections as to the maintainability of certain plea within the scope of this petition under Article 226 of the Constitution of India. " ;