KOTHARI, J. - (1.) WHAT comes on surface in this boiling pot of litigation now is the impugned order dated 18. 9. 2006 passed by learned ADJ No. 2, Jaipur allowing the application under Order 7 Rule 11 CPC and rejecting the Civil Suit filed by Mandir Shri Madho Behari Ji and one Mr. Dinesh Chandra Swami, claiming partition of suit property, rendition of accounts and perpetual injunction against the defendant from alienating such property, appointment of Receiver etc.
(2.) IN the chequered history of litigation in this matter not only some civil suits were filed, but this Court had also occasion to deal with the litigation between the parties in writ jurisdiction. First S. B. Civil Writ Petition No. 1008/1982 (Prakash Chandra Swami vs. State of Rajasthan) came to be allowed by the learned Single Judge of this Court in the following terms:- " The result is that this petition is allowed in terms that all proceedings taken up before the respondent No. 2 and 3 under the Act or elsewhere including the registration of the said temple as public trust, the impugned order dated 26. 10. 1981 (Annexure 17), the concerned entry in the Gazette notification dated 25. 6. 1981 (Annexure16) in so far as it held the said temple as `public trust' or the State Supurdagi temple or `the Thikana Temple' are set aside. The Darobast temple of Shri Madho Bihariji is declared as private trust with partial dedication. It is further declared that after the death of late Shri Tota Ramji, the said Darobast temple and the shops devolved in succession upon all his heirs and successors. In accordance with rules of inheritance as contemplated under the Hindu Law. It is also declared accordingly that the properties of the said Darobast Temple in the hands of the said heirs and successors shall be subject to the charge of discharging and fulfilling the functions of Bhog, Sewa Pooja, upkeep and maintenance of the temple etc. The shops, however, shall remain wholly private. The parties to bear their own costs. " The said writ petition was filed challenging the order (Annexure 17) to the writ petition dated 26. 10. 1981 passed by the Commissioner of Devasthan Department, whereby the Commissioner of Devasthan Department directed a fresh enquiry at the hands of the Asstt. Commissioner, Devasthan Department as to whether the conditions of grant of said temple known as "shri Madho Behari Ji Ka Mandir" were satisfied or not and whether the Seva Pooja were being performed in accordance with the conditions of grant or not. By the said order dated 26. 10. 1981, the original order dated 21. 12. 1970 directing the registration of the trust as a Public Trust was also quashed. Thus with the writ petition filed against the said order dated 26. 10. 1981 having been allowed by the learned Single Judge, the said order dated 26. 10. 1981 itself came to be quashed. The matter was taken to the Division Bench by way of appeal against the said judgment of learned Single Judge by respondent therein namely Mahesh Chand Swami and the Division Bench allowed the appeal vide its judgment dated 21. 12. 2005. It would be of interest to reproduce the relevant paras of the judgment here: " In so far as judicial precedents cited by the learned counsel representing legal heirs arrayed as respondents are concerned, the same are not at all applicable to the facts of the case in hand. We have in sufficient details given facts of each of the judicial precedents cited before us and the observations made by the Hon'ble Supreme Court on such facts in relation to the questions that might have been debated. We need not thus take into our hands exercise of distinguishing the judicial precedents one by one. Suffice it however to say that the observations made by the Hon'ble Supreme Court which alone, sans facts, have been relied upon, came into being in peculiar facts and circumstances of those cases. There is not a single judicial precedent that might have been cited before us where the relief in question might pertained to pure and simple individual property dispute between the parties. Further, none of the judicial precedentscited before us pertains to initial controversy between a citizen and the government and which might have been converted into a dispute between individuals only. We may reiterate that the writ petition was filed by Prakash Chandra Swami challenging order dated 26. 10. 1981 (Annexure 17) and the only dispute was as to whether Mandir Madho Behariji, Station Road, Jaipur was a government Supurdgi Temple or Thikana Temple. Legal heirs impleaded as petitioners or respondents are happy and satisfied with the decision of the learned Single Judge who quashed the impugned order (Annex. 17 ). Concededly, dispute with the government had come to an end. Government has not filed appeal against the order of the learned Single Judge. There is only a part of the judgment which relates to the decision on inter se rights of the legal heirs arrayed as petitioners-respondents that the dispute survives. This kind of dispute, we are sanguine, could not possibly be agitated by way of writ petition. Learned counsel representing legal heirs arrayed as respondents, as a last resort, contended that once the pleadings are complete and there is no dispute with regard to the authenticity of the documents which have been relied upon by both the parties, Court should determine the controversy relating to inter se rights of the legal heirs of Prakash Chandra Swami. We do not went to comment upon the correctness of pleadings and authenticity of documents even though it is urged by the other side that in a regular suit there was scope to lead proper evidence and more documents. Suffice it to say that a small deviation from established procedure might be permissible but wholesome violation of the same would result into laying down wrong law. A dispute which could be determined only procedure established by law governing civil suit should not be permitted to be determined by way of writ petition ad that too where original cause of action had nothing to do with the said dispute. Further, the dispute between legal heirs of Prakash Chandra Swami is essentially of civil nature and in our considered view, such a dispute has necessarily to be decided by civil courts that have jurisdiction to try all suits of civil nature. Before we may part with this order, we would like to mention that learned counsel representing legal heirs of Prakash Chandra Swami arrayed as respondents, was at pains to explain to us that the findings recorded by the learned Single Judge with regard to the right of managing the property in dispute by all the legal heirs is correct and therefore, needs to be sustained. It was urged before us that the findings recorded by the learned Single Judge have no exception whatsoever and therefore, another bout of litigation would be a waste of time. Mr. Alok Sharma, learned counsel representing legal heirs arrayed as petitioners, joined issue with the counsel for the other side. Once, we are relegating parties for determination of their inter se rights with regard to the succession or management of the property in dispute to civil court or any other court competent to try the issue, we need not comment anything further as that might prejudice either of the parties before the concerned court. Contention of the learned counsel representing legal heirs arrayed as respondents that the appellants had no locus standi to file the present appeal as order (Annexure 17) which was challenged in the writ petition has been set aside and therefore, there was no occasion for them to have filed the present appeal, needs to be summarily rejected. In fact, appellants are aggrieved of the part of judgment that deals with inter se rights of the legal heirs of Prakash Chandra Swami in succeeding to or managing the properties in dispute and it is only that part of the order which has been agitated in the present appeal. In view of the discussion made above, the appeal is allowed. All observations, findings or directions as might pertain to the inter se rights of legal heirs arrayed as petitioners and respondents would stand set aside with liberty to the parties to settle this issue before an appropriate forum that might also include civil courts. In peculiar facts and circumstances of the case, costs are made easy. " The net result was that while quashing of the impugned order dated 26. 10. 1981 (Annexure 17) passed by the Commissioner, Devasthan became final and parties were common on this point and no challenge was laid to that part of the judgment of learned Single Judge, for the inter-se disputes and for decision on inter-se rights of the legal heirs arrayed as petitioners as well as respondents, the Division Bench concluded that the same could not be pronounced upon or adjudicated upon in the writ jurisdiction and therefore, the parties were relegated to the appropriate forum, that may also include Civil Courts. It appears that parties are at logger-heads on their inter-se rights over the property, which was granted by the erstwhile State to the ancestor of the warring groups, namely late Shri Tota Ram Ji.
(3.) LEARNED counsels argued their respective clients' rights at length and took this Court through the judgments of learned Single Judge as well as Division Bench repeatedly besides various other case laws, but it appears to this Court that instead of going on deeper and making any observations on the respective rights and rival claims of the parties, this Court is concerned in the present appeal only with respect to validity of the impugned order passed by the learned trial court allowing the application under Order 7 Rule 11 CPC and rejecting the suit at the threshold holding it as not maintainable or barred by law, which is the ambit and para meters of Order 7 Rule 11 CPC. On this, Mr. Alok Sharma, learned counsel appearing for the respondents urged before this Court that in view of bar of Section 73 contained in Rajasthan Public Trusts Act, 1959, the suit was rightly held barred by law by the trial Court. Section 73 of the said Act reads as under:- " 3. Bar of Jurisdiction- Save as expressly provided in this Act no civil court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act or in respect of which the decision or order of such officer or authority has been made final and conclusive. " He also submitted that all the four questions framed by the learned trial Court, as stated in the impugned order were rightly decided in favour of the defendants and the learned trial court had committed no error in allowing the application under Order 7 Rule 11 and therefore, the present appeal deserves to be dismissed. ;