- (1.) THIS Misc. appeal has been preferred by the defendants to challenge the order of the trial court dated 10.3.2006 by which the learned Addl. District Judge, Nathdwara allowed the respondent's injunction application filed under Order 39 Rules 1 and 2, C.P.C. and directed both the parties to maintain status quo with respect to the property in dispute and permitted defendants no.3 and 4 to close the door if they are opened, so that unwanted persons may not entered into the property and the property may be protected properly. It is also ordered that if any preventive measures are taken by the administrative authorities by preventing of entry of unwanted persons in the disputed property then the particulars of those measures be furnished to the trial court.
(2.) BRIEF facts which have emerged from the pleadings of the parties and the documents placed on record are required to be mentioned for the purpose of deciding this appeal. It is said that a Patta was issued for the property in dispute in the name of Shri Gopal Lal grand-father of defendantno.2 Shri Krishna Kumar in the Samvat year 1945. Copy of the said Patta has been placed on record. Said Gopal Lal died and his son Shri G.S. Vitthalnathji Gopalji Maharaj, put his ancestral as well as his self-acquired properties including the property in dispute in common hotchpotch of joint Hindu family and thereafter all the properties were partitioned in the year 1962. A memorandum of partition was reduced in writing on 16.12.67, copy of which has been placed on record by the defendants. By this, the partition of the year 1962, the memorandum which was written on 16.12.1967, the property in dispute involved in the suit came in the share of defendant no.2 Krishna Kumar. Said Krishna Kumar sold the property to Chandra Kant and his family members by registered sale-deed dated 2.7.1977. In the year 1982, said Krishna Kumar who started living at Baroda, decided to create a public trust and gave his personal property to Shri Mathuru Nathji temple to create trust and for that purpose, prepared the scheme of trust which was reduced in writing by deed dated 2.6.1982. It is a case of the defendants appellants as well as his predecessor in title Krishna Kumar defendant no.2 that on 2.6.1982 defendant no.2 was not owner of the property in dispute and, therefore, the the property in dispute was not included in the said scheme of the trust. The copy of the sale deed dated 2.7.1977 as well as the scheme of trust dated 2.6.1982 are also placed on record. To get the trust registered as public trust, an application was submitted before the Assistant Commissioner, Devasthan Department, Udaipur on 8.6.1982 by said Krishna Kumar through his Advocate. The copy of the scheme of the trust along with Form No.6 as is required under the Rajasthan Public Trust Act, 1959(for short 'the Act of 1959'), were also submitted to said authority by the said Krishna Kumar. The Assistant Commissioner, Devasthan Department registered the case and issued public notice on 10.11.1982 and thereafter also got the notice published in the news papers also. Said Krishna Kumar appointed his power of attorney to get all work of registration of trust. This power of attorney is dated 28.6.1983. It is said by the defendants that this power of attorney was for only one temple, that is Shri Mathura Nathuji temple and was not for the property in dispute. On 21.11.1983, certain documents were submitted by said Krishna Kumar's power of attorney, along with other documents, also submitted the registered sale deed dated 2.7.1977 by which Krishna Kumar himself sold the suit property to Chandra Kant and his family members. Krishna Kant did not gave his statement in the proceedings for registration of the trust but his power of attorney Chunni Lal gave his statement before the Assistant Commissioner, Devasthan Department on 2.3.1984. It is alleged that in fact, the suit property was not included in the scheme of the trust nor it was mentioned in the list of properties of the trust but the power of attorney who was given limited power that too with respect to the particular property, i.e. Shri Mathura Nathji Temple without any instruction of the said Shri Krishna Kumar, included the property in dispute in the list of the properties of the trust. The Assistant Commissioner, Devasthan Department registered the public trust by order dated 21.1.1985. The name of the trust is Thakur Mathuranathji-ka-temple, Chhota Bhandar Trust, Kankroli. In the list of the properties of the said trust (for short Mathuranathji Trust), the suit property was also included by the order of Assistant Commissioner, Devasthan Department, Udaipur. It will be worthwhile to mention here that no notice was given by the Assistant Commissioner, Devasthan Department to the purchasers Chandra Kant and or any of purchasers who purchased the suit property by sale deed dated 2.7.1977, before declaring the property sold by Krishna Kant by sale-deed dated 2.7.77 to be trust property despite the fact that it was brought to notice of the Assistant Commissioner, Devasthan Department, that the property in dispute was sold by the settler of trust about more than seven years ago and seller is in possession of the property in dispute. In the order dated 21.1.1985, the Assistant Commissioner, Devasthan Department, Udaipur observed that the suit property was sold to Chandra Kant s/o Ganga Das and others and that sale was conditional. The Assistant Commissioner, Devasthan Department, Udaipur also recorded the stand taken taken by the power of attorney( of Krishna Kant ) that the property has not been got released from Chandra Kant. The Assistant Commissioner, Devasthan Department, Udaipur also observed that it was contended that settler Krishna Kumar is prepared to get the property released (from Chandra Kant and others) but Chandra Kant etc. are not ready to give the possession of the property to the said settler or to the temple. The Assistant Commissioner, Devasthan Department, Udaipur in para 5 of the order, after observing that since the sale-deed which the Assistant Commissioner, Devasthan Department, Udaipur treated as conditional agreement and also declared sale-deed as void and declared that the property is the property of Mathuranathji trust temple. After 14 years from sale and about 6 years from registration of the Trust, the property which was sold to Chandra Kant by registered sale-deed dated 2.7.1977 was re-purchased by same Krishna Kumar by registered sale-deed dated 10.7.1991. Till this time, neither there was any dispute nor any body claimed the property in dispute from Chandra Kant and his family members and no body challenged the sale deeds dated 2.7.1977 or 10.7.1991. The dispute arose only when said Krishna Kumar again sold this property to present appellant-defendants by registered sale-deed dated 10.7.2000 for a consideration of Rs.35,00,000/-and handed over possession of the property to the purchasers appellants- defendants. According to the defendants-appellants, the purchaser from Krishna Kumar, they obtained the permission to raise construction of hotel over the property in dispute from the Municipal Board, Nathdawara which was granted to them by the Municipal Board, Nathdawara on 28.11.2000. The defendants-appellants demolished the property and started new construction over the land in dispute. Then one Navneet Soni filed Civil Original Suit for injunction being Suit No.9/2001 in the court of Civil Judge (Sr.Div.), Nathdawara against the appellants and the seller Krishna Kumar on 28.2.2001. Subsequently, the Assistant Commissioner, Devasthan Department, Udaipur was also impleaded as party in the said suit no.9/01 by the plaintiff Navneet Soni. It appears that during pendency of the suit of Navneet Soni no.9/01, Krishna Kumar preferred appeal on 15.7.2000,under the provisions of the Rajasthan Public Trust Act, 1959 to challenge the order of the Assistant Commissioner, Devasthan Department, Udaipur dated 21.1.1985 which was after 15 years from the date of order dated 21.1.1985. Krishna Kumar's said appeal was dismissed by the Commissioner, Devasthan Department by order dated 22.10.2002 holding the appeal to be barred by time. Section 22 of the Act of 1959 provides filing of the suit for cancellation of entry made in the register of public trust after the decision of the appellate authority. Then said Krishna Kumar approached civil court by filing civil original suit no.14/2003 on 13.1.2003 in the court of District Judge, Udaipur. Apparently, Krishna Kumar, who was defendant in the suit of Navneet Soni, no.9/01, preferred appeal to challenge the order of the Assistant Commissioner, Devasthan Department, Udaipur dated 21.1.1985 and after dismissal of said appeal, filed suit for cancellation of entry made in the register of trust properties by order of the Assistant Commissioner, Devasthan Department dated 21.1.1985 in the court of District Judge, Udaipur on 13.1.2003 when the earlier filed suit of Navneet Soni, No.9/01 was pending . Navneet Soni's suit no.9/01 was contested by the present appellants-defendants, Krishna Kumar and the Assistant Commissioner, Devasthan Department, Udaipur. Navneet Soni's case no.9/01 was dismissed by the trial court on 21.5.2005. In Navneet Soni's suit no.9/01, the trial court framed specific issues in relation to the nature of the property as well as in relation to the title to property and further about the validity and legality of the order dated 21.1.1985. In said Civil Original Suit No.9/01, the trial court in judgment dated 21.5.2005 held that the property in dispute was the personal property of Krishna Kumar and the property was never the property of the temple and specifically held that the property was not of the temple on 10.7.2000 when the property was sold to the present appellants-defendants by Krishna Kumar. The trial court specifically recorded finding that the order of Assistant Commissioner, Devasthan Department, Udaipur dated 21.1.1985 was wholly without jurisdiction so far as it relates to the property purchased by the appellants-defendants. In addition to above finding, the trial court also held that the present appellants who were defendants in the suit no.9/01, are the bona fide purchasers of the property by saledeed dated 10.7.2000. It will be relevant to mention here that Krishna Kumar supported the case of his purchaser the present appellants in Navneet Soni's case. It is admitted fact that Regular First Appeal has been preferred by Navneet Soni against the judgment passed against the judgment and decree dated 21.1.1985 whereby the trial court dismissed Navneet Soni's suit after recording above finding on 21.1.1985. The said first appeal is pending before this Court but, admittedly, none of the parties obtained any interim order in the said first appeal.
(3.) IT is the case of defendant Krishna Kumar that when the issue has been decided by the civil court with respect to the nature of the property, the title of the property as well as legality and validity of the order dated 21.1.1985, in Navneet Soni's case No.9/2001 then Krishna Kumar withdrew his suit No.14/2003 which was filed in the court of District Judge, Udaipur under Section 22 of the Act of 1959 for cancellation of entries made in the register showing the suit property as thrust property. Despite the fact that in the earlier filed suit wherein the issues were framed in relation to the nature of the property, title to the property and legality of the order dated 21.1.1985, the State Government and the Commissioner, Devasthan Department and the Assistant Commissioner, Devasthan Department, Udaipur, have filed the present suit for cancellation of the sale-deed dated 10.7.2000 in the year 2004. It appears that the plaintiffs respondents- the State of Rajasthan and the Devasthan Department of the Government of Rajasthan might have been advised to challenge the sale deed dated 10.7.2000 because of the fact that the appellants-defendants are claiming them to be owners of the property in dispute on the strength of sale-deed dated 10.7.2000. The contention of the plaintiffs in the present suit is that the property in question, has been declared to be public trust vide order dated 21.1.1985 and it has been included in the list of the properties of the trust in accordance with the law by order dated 21.1.1985, therefore, said Krishna Kumar had no right to alienate the property as he was not the owner of the property in dispute and the property in dispute was the property of the trust on 10.7.2000. It is also submitted that none of the properties of public trust can be sold without the permission of the competent authorities under the provisions of the Act of 1959. It is also contended that the property is of deity and deity is perpetual minor, therefore, since the sale was effected without obtaining permission of the district court, under the provisions of the Rajasthan Minority and Guardianship Act, therefore, also the sale-deed dated 10.7.2000 is void. ;