Full Judgment Text
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CASE NO.:
Appeal (civil) 1798 of 1991
PETITIONER:
YABDYARLAROS.DAJIBA SHRAWANE (DEAD)
Vs.
RESPONDENT:
MA&NIOLRASL. HARAKCHAND SHAH (DEAD)
DATE OF JUDGMENT: 02/08/2002
BENCH:
S.RAJENDRA BABU & D.P.MOHAPATRA.
JUDGMENT:
D.P.MOHAPATRA,J.
This appeal filed by the plaintiffs is directed against
the judgment of the Bombay High Court, in Second Appeal
No.164/1968 in which the High Court allowed the appeal,
No.123-A, filed by the defendants, set aside the decree
passed by the lower appellate court and restored the
decree passed by the trial court.
The appellants filed the suit as representatives of
Akhil Digambari Jain community of village Shirpur, Talaq
Washim, District Akola. The defendants who are
respondents herein were impleaded as representatives of
Swetambari Jain community of the area. The plaintiffs
prayed for the following main reliefs in the suit :
"(a) Order passed by the Court of
S.D.M. on 17.12. 1927 and that
passed by the Court of the Addl.
Judl. Commissioner on 6.8.1928
against the plaintiffs be set
aside.
(b) It be declared that the whole of the
Digambari Jain community is
entitled to have full possession,
Wahiwat and enjoyment of rights,
over the field S.No.197 as
described hereinabove and the
defendants be directed to put the
plaintiffs in possession of the said
field in the condition in which it
may be. Similarly, it be declared
that the whole of the Digambari
Jain community is entitled to have
joint rights in field S.No.198/1 as
detailed and described
hereinabove and the defendants be
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directed to put the plaintiffs in
joint possession of it also in the
condition in which it may be.
(c) The reliefs regarding rights as
stated by the plaintiffs in plaint
paras nos. 5(b) to (i) and shown in
the map dated 2.10.37 be granted
to them if necessary and in the
alternative."
The case of the plaintiffs sans unnecessary details
may be stated thus :
There are two fields under Survey No.197 and 198/1
situate at mouza Shirpur Tq. Washim, District Akola,
measuring 2 acres 5 gunthas and 1 acre 22 gunthas,
respectively. The two fields adjoin each other. In Survey
No.197 there is a very old Hemadpanthi temple of Shri
Antariksha Parshwanath known as Pawli temple. This
temple and its precincts spread over 20 gunthas of land
were being preserved as an ancient monument by the
Archeological Department of Government of India during
the period 1925 to 1964. In this field near the temple there
is a garden having fruit bearing and flowering trees.
The shrine in the said temple is worshipped by both
Digambari and Swetambari sects of Jains. Originally the
management of the temple of Shri Antariksha
Parshwanath temple was in the hands of Maratha and
Kunbi servants of the Jain community. These servants
were known as Paulkars. In course of time the Paulkars,
began to assert their rights to management of Shri
Antariksha Parshwanath temple and this led to
disputes between the members of the Jain community on
the one hand and the Paulkars on the other. In the
proceedings initiated under section 145 Criminal
Procedure Code the S.D.M. Washim by order dated
7.9.1903 held that the Jain Community was in exclusive
possession of the property of Shri Antariksha Parshwanath
Maharaj Sansthan and accordingly the receiver was
directed to hand over possession of the property of Shri
Antariksha Parshwanath Maharaj Sansthan to Panchas of
the Jain community.
Near about the year 1908 dispute started between
the two Sects of Jain community, the Digambaris and the
Shawetambaris and each sect started to claim that Shri
Antariksha Parshwanath Maharaj temple was a temple of
their sect, the idol was an idol of their sect. Each sect
claimed exclusive management of the temple and worship
of the deity according to the tenets of its own Sect.
Eventually, the Swetambaris instituted Civil Suit No. 4 of
1910 in the Court of the Additional District Judge, Akola
to establish their right, title and management of Shri
Antariksha Parshwanath temple against the Digambaris.
The suit was filed by certain members of Swetambari sects
in their representative capacity as representing the
Swetambari community and similarly the defendants of the
suit were sued as representing the Digambari community.
The suit was partly decreed by the trial court. Against the
decree the Swetambaris preferred appeal First Appeal
No.39-B of 1918 in the Court of Judicial Commissioner,
Nagpur. The Digambaris filed cross objection in that
appeal. The Judicial Commissioner, Nagpur, confirmed
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the right of exclusive management and worship of Shri
Antariksha Parshwanath temple, Shirpur in favour of the
Swetambaris and dismissed the cross objection of the
Digambari sect. The relevant portion of the decree passed
by the Judicial Commissioner, runs as follows:
"We declare that the Swetambaris
are entitled to the exclusive
management of the temple and the
image of Shri Antariksha
Parshwanath Maharaj at Kasbe
Shirpur, with Katisutra, Kardora
and Lape, and that they have the
right to worship that image with
Chakshu, Tika and Mugut and to
put ornaments over the same in
accordance with their custom. That
the Digambaris have a right of
worshipping the image in
accordance with the arrangement
made in 1905 without Chakshu,
Tika and Mugut or ornaments, but
are not to remove or interfere with
the Kachota, Katisutra and Lape; we
also declare that the Digambari Sect
are permanently restrained from
obstructing the Swetambari Sect in
getting the image restored to its
original form adorned with the
Kachota, Katisutra and plastering
the same now and hereafter. In
supersession of the lower Court’s
decree, a decree as above will now
be passed. The cross objections are
dismissed. As regards costs, we
think it proper that each party
should bear its cost."
Against the said decree the Digambaris preferred
appeal before the Privy Council being No.69/1927. The
Privy Council dismissed the appeal and confirmed the
decree passed by the Judicial Commissioner’s Court
vide its judgment dated 9.7.1929.
In the meanwhile, near about the year 1927
disputes started between the Digambaris and
Swetambaris over possession of the two fields, Survey
No.197 and Survey No.198/1. of Shirpur village. These
disputes between the two sects led to a proceedings
under section 145 of the Criminal Procedure Code
before the S.D.M. Washim, registered as Misc. Cr. Case
No.15 of 1927. By his order dated 17.12.1927 the
S.D.M. held that the Swetambaris were in exclusive
possession of these two fields. Feeling aggrieved by
the said order the Digambaris filed Criminal Revision
Application No.1 of 1928 in the Court of the Sessions
Judge, Akola. The Additional Sessions Judge, Akola
made a reference to the Court of Judicial Commissioner,
Nagpur. The Additional Judicial Commissioner, Nagpur
on 6.8.1928 rejected the reference and confirmed the
order of the S.D.M, Washim upholding the possession of
Swetambaris over the two fields. The Digambaris
thereafter instituted the present suit against the
Swetambaris for setting aside the order of the S.D.M.
Washim. The suit was filed by the Digambaris on
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6.8.1931 in the Court of the Sub-Judge II Washim. It
was registered as Civil Suit no.300/1931. On the
objection raised on behalf of the defendants
(Swetambaris) that the suit was under valued the trial
court considered the preliminary issue relating to
valuation of the suit and held that the suit was under-
valued and requisite court fee of Rs.5,500/- was to be
paid. After the plaintiffs paid the requisite court fee
and amended the plaint by correcting the valuation the
Court of the Subordinate Judge, Class II, Washim
passed an order that it had no jurisdiction to try the
suit and the plaint was returned to the plaintiffs for
presentation to the proper Court. On the same day
13.4.1933 the plaint was presented to the Court of the
Sub-Judge Class I Washim, and was registered in that
Court as Civil Suit No.23 of 1933. Subsequently, it
came to be re-registered as transferred Civil Suit
No.123-A of 1958.
The claim of the plaintiffs in the suit may briefly
be stated as follows:
" The hemadpanthi temple of Antriksha
Parshwanath i.e. the "Pawli temple"
situated in Survey No.197 belongs to
and is under the management
(Wahiwat) of the Digambari Jain
Community. Survey No.197
(containing the temple and the garden)
exclusively belongs to the Digambari
Community and has all along been in
the exclusive possession of the
Digambari Community. Survey
No.198/1 has been used to
accommodate the Digambari Jain
pilgrims coming to the Pawli temple.
The Digambari Jain pilgrims have been
using this field to fix their tents, and to
hold meetings, religious functions
(Dinners, Bhajans etc.). Since 1913-
14, the Swetambaris have also been
using Survey No.198/1 as co-
religionists. That filed was accordingly
recorded in the name of both the Jain
communities. Later on, taking
advantage of the confidence reposed by
the Digambari Jain Community, the
Swetambaris, with the intention of
defrauding Digambari Jain Community
and without its knowledge, got the
present entry made in the name of
Swetambaris alone in the Jamabandi
patrak. The Digambari plaintiffs came
to know of this in the year 1927.
According to the plaintiffs, the
Digambari plaintiffs and the
Swetambari community are jointly
entitled to possession and enjoyment of
Survey No.198/1.
The suit field Survey No.197 and a
joint half share in Survey No.198/1
belong to the Pawli temple. The
Digambari plaintiffs as owners,
worshippers and Wahiwatdars of this
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Sansthan as formed by the temple and
idol situated in Survey No.197, and
known as Pawli Temple Sansthan, are
claiming the suit fields from the
defendants. This Sansthan, as formed
by the Deity and the temple in this suit
and situated in Survey No.197 has
absolutely no concern in respect of
ownership and management with the
Sansthan or the Deity of the same
name in the town of Shirpur. The
litigation fought out previously in
respect of the other Sansthan in the
town has no relation whatsoever with
this Sansthan or the Deity which is
quite an independent one. This
Sansthan is outside the town and is
known as Pawli temple. These two
fields Survey No.197 and 198/1 belong
to this Pawli temple and not to the
other Sansthan. This Sansthan
exclusively belongs to Digambari Sect,
while the other sect of the Swetambaris
is allowed to worship there as co-
religionists. The management of this
Sansthan known as Pawli Temple and
its property were not the subject-
matter of the previous litigation in Civil
Suit No.4 of 1910 of the Court of the
Additional District Judge, Akola, which
was in respect o the other Sansthan in
the town.
In the alternative, even if this Pawli
temple and its property are held to be
belonging to the Sansthan in the town
of Shirpur, still the plaintiffs’ right to
claim the reliefs in the present suit
remains unaffected by the decision in
the previous suits, because the
previous decrees related only to the
right of management of the temple and
the idol situated in the town. The
plaintiffs, as worshippers and devotees
of the Deity in the town of Shirpur,
have a right to claim possession of the
field Survey No.197 and joint
possession of the field Survey
No.198/1. They accordingly in the
alternative claim them as worshippers
of the deity Shri Antariksha
Parshwanath Maharaj.
Further, in the alternative, the
plaintiffs submit that if the plaintiffs
are not held entitled to claim
possession of Survey No.197 and joint
possession of Survey No.198/1, they
claim a declaration of their right of
Wahiwat (easement) in respect of these
fields as worshippers of the Deity,
which right has continued from ancient
times. Thus, even if the Digambaris
establish their exclusive right of
management in the capacity of
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managers of the suit fields, the
plaintiffs are entitled to enjoy the
aforesaid fields unobstructedly, even if
it is held that the fields belonged to the
Deity and the temple in the town, the
plaintiffs being worshippers of the
deity. These rights are
(i) The right to use the two
pathways to the Pawli
temple.
(ii) The right to take Dindis to
the Pawli temple at the time
of Jalyatra on Miti Kartik
Shuddha 14 and 15 every
year.
(iii) Right of pathway to the well
and to take water of the well.
(iv) Right to use the water of the
well for watering the garden
in Survey No.197.
(v) Right to use the way AB on
all sides i.e. B.H.B.D.E.D. as
shown in the Commissioner’s
map as an easement of
necessity.
(vi) The right to use Survey
No.198/1 for camping of
Digambari pilgrims, and for
parking of unyoked bullock-
carts, for performing Puja,
Pratistha by pilgrims and
holding of discussions,
meetings, and gatherings by
pilgrims.
(vii) The right to use Kotha and
rooms in Survey No.197.
(viii) The right to take fruits and
flowers from the trees in the
garden in Survey No.197.
In the relief clause in the plaint,
the Digambari plaintiffs prayed for
the following reliefs :-
(i) Setting aside of the order of
the Sub-Divisional
Magistrate, Washim dated
17-12-1927.
(ii) Declaration that the whole
of the Digambari Jain
community is entitled to full
possession, Wahiwat and
enjoyment of rights over
Survey No.197 and actual
possession of the said field.
(iii) Declaration of the Right of
the Digambari Jain
community to have joint
possession, Wahiwat and
enjoyment of rights in
Survey No.198/1 and
actual joint possession of
that field.
(iv) Relief regarding rights as
stated in paragraphs 5(b) to
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(i) of the plaint."
The Swetambari-defendants denied the
contentions raised by the Digambari-plaintiffs.
According to them the Pawli temple had no idol in it,
the pedestal was without an idol. The moveable and
small idol was placed there about 30/35 years ago by
somebody as the pedestal was empty. The Pawali
temple does not belong to Digambari sect. It was a
Swetambari temple owned and managed by
Swetambaris. In civil suit No.4 of 1910 the
Swetambaris had been declared to be the exclusive
managers of the said temple and idol of Shri Antariksha
Parshwanath Maharaj Sansthan with only a limited
right of worship given to the Digambaris. According to
the defendants previously there was no idol of Shri
Antariksha Parshwanath nor was there any temple in
survey no.197. The Digambari near about the year
1927 surreptitiously put a stone slab on the Pawli
temple falsely describing it as "Digambari Mandir". The
defendants Swetambaris claimed that a portion of the
suit Survey No.197 was acquired by the Swetambari
Jains on 2.8.1976 from one Shankar Sadashiv Pande
under a Rajinama and Kabuliyat, for their use as
exclusive owners and Managers of Shri Antariksha
Parshwanath Maharaj Sansthan, and they had later on
sunk the well in the field. It was the further case of the
defendants that during the last more than 70 years the
defendant Swetambaris had been in exclusive
possession of the field survey No.197. According to
them the suit property was purchased by the
Swetambari on 20.12.1900 from the original owner by a
registered sale deed in the name of Deoba Raoji and
Ananda Mehpati of Shirpur, as managers on behalf of
Swetambaris, and the Swetambaris had all along been
in possession of the said field.
The trial court found that the Pawli temple is not
known as Shri Antariksha Parshwanath and it did not
belong to the plaintiff Digambari community. On the
contrary the Pawli temple and its Sansthan were the
property of the town temple of Shri Antariksha
Parshwanath Maharaj. The final decision in Civil Suit
No.4 of 1910 did not operate as res judicata on the
point of title, ownership and possession of the present
suit property, but that decision operated as res judicata
only as regards the right to manage the suit property.
The Court further found that both, survey No. 197 and
Survey No.198/1 did not belong to the Pawli temple or
its Sansthan but had been acquired by the manager of
the temple in the town. The field Survey No.197 had
not been in the exclusive possession of the plaintiff
Digambaris. The plaintiffs had only been using the well
in Survey No.197 and the pathways to the Pawli temple.
The Digambaris were not entitled to exclusive
possession of Survey No.197 nor to joint possession of
Survey No.198/1. The suit is not barred by limitation
and the trial court had jurisdiction to try the suit. On
these findings the trial court dismissed the Digambari
plaintiffs’ claim for declaration of title for setting aside
the Sub-Divisional Magistrate’s order, and for exclusive
possession of Survey No.197 and joint possession of
Survey No.198. But the trial court granted a limited
decree in Digambari plaintiffs’ favour in following
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terms:-
"The plaintiffs as worshippers of the
idol of the Shri Antariksha
Parshwanath Maharaj Sansthan have
the following rights:
(i) Using the ways A.B.H.,
A.B.C.D., D1 and the way in the
southern portion of Survey
No.198/1 from East to West
turning to the North and at the
western end near the temple
and proceeding to the temple for
entry at ML as shown in the
map No.8 in the Commissioner’s
papers.
(ii) Enjoying water of the well "W"
for purposes of drinking,
bathing washing clothes and
pots and watering cattle by
working Mots on it.
(iii) Temporary parking of carts and
tethering of bullocks of the
pilgrims during the periodical,
annual Yatra day on portions of
Survey No.197 and 198/1
happening to be vacant and not
under cultivation."
Aggrieved by this decree the Digambari
plaintiffs filed Civil Appeal No.96 of 1965 in the
District Court, Akola. Against the partial decree
passed by the trial court in favour of the Digambari
plaintiffs, the Swetambari defendants filed cross
objections. The lower Appellate Court agreed with
the trial court that the suit was not barred by
limitation, and that the suit was not affected by the
provisions of Section 32 of the Madhya Pradesh
Public Trusts Act, 1950 and that the suit was also
not barred by the orders passed by the Charity
Commissioner. However, disagreeing with the trial
Court, the lower Appellate Court found that Survey
No.197 belonged exclusively to the plaintiff
Digambari Sect and that Survey No.198/1 belonged
to the Digambaris and Swetambaris jointly. The
lower Appellate Court, therefore, allowed the appeal
of Digambari plaintiffs and dismissed the cross
objections of Swetambari defendants by passing a
decree in following terms:
"The appeal is allowed. The decree of
the trial court is set aside and in its
place, the following decree is
substituted:-
(1) The order passed by the Sub-
Divisional Magistrate on
17.12.1927 and Judicial
Commissioner, Nagpur on
6.8.1928, are set aside. It is
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hereby declared-
(2) That the plaintiffs who are the
representatives of the Jain
community are exclusive owners
of Survey No.197 of Shirpur.
They shall be put in possession
of that property. It is also
declared that Survey No.198/1
jointly belongs to the Digambari
community as well as
Swetambari community. The
plaintiffs shall be put in joint
possession of the same. The
remaining claim is dismissed as
it does not survive.
Respondents no.1 to 3 shall
bear the costs of the appellants
throughout. The respondent
no.4 to bear his own costs. The
cross objection of the
respondents no.1 to 3 is
dismissed."
Aggrieved by this decision of the lower
Appellate Court the Swetambaris defendants
preferred the second appeal.
In Para 12 of the judgment the High Court
formulated the contentions raised by the counsel
for the appellant as follows:
"Shri Palshikar, the learned counsel for
the appellant defendants, contended
that this finding of fact arrived at by the
lower Appellate Court was not binding
on this Court in this second appeal
because the lower Appellate Court
(a) had failed to consider certain
relevant and admissible evidence
on record of the case,
(b) had based its finding partly on
consideration of certain
inadmissible evidence,
(c) had mis-construed some of the
material documents governing the
question of title to the suit
properties, and
(d) had based its findings on
inferences which could never be
drawn from the documents, and
on surmises and conjectures.
This contention of the appellants has
first to be closely examined."
The High Court noted the gist of the claims of
the plaintiffs Digambaris that the two suit fields
belonged either to the Pawli temple which itself was
a separate Digambari Sansthan as distinguished
from the Shri Antariksha Parshwanath temple and
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Sansthan in the town of Shirpur or that the two
suit fields belonged to the Digambari Community,
Survey No.197 exclusively and Survey No.198/1
jointly along with the Swetambaris.
The Court took note of the contentions raised
on behalf of the defendant Swetambaris that the
Pawli temple and the two fields were the exclusive
properties of the town temple of Shri Antariksha
Parshwanath and were in their exclusive
possession. The High Court noted the admission
made by the witness Haribhau Rangnath Tikait PW
5 who claimed to be a Digambari jain. His
statement in cross examination was to the effect
that "Pawli temple is part of the temple in the town
and part of the estate of that temple. The gardens
are known by the name of Pawli Bagicha".
Proceeding further the High Court considered
in detail the documentary evidence relied upon by
the lower appellate court in support of the finding
that the Pawli temple and two suit fields were the
properties of Swetambaris defendants. The High
Court in its detailed discussions in paragraphs 13
of the judgment has brought out clearly and
succinctly how the lower appellate court relied
upon evidence inadmissible in law, in view of the
provisions of section 57 of the Indian Evidence Act;
and brought out certain fallacies in the reasons
given by the lower appellate court.
The High Court further observed that the
recital about the inscription with date and the recital
about this being the original temple from which
tradition claims that the image was transferred to the
modern principal temple in the village, clearly tend to
support the appellants Swetambari, that the Pawli
temple being a part of the property of Antariksha
Parshwanath Maharaj Sansthan by establishing a
definite co-relation between the two temples.
The High Court held that the question of title
to a temple or field property could hardly be said to
be a question of public history nor would a report of
the Archeological Survey be an appropriate book of
reference for deciding such a controversy. The Court
placed reliance on the case of Farzand Ali and
another Vs. Zafar Ali (XLVI Indian Cases 119), in
which it was observed:
"We are inclined to think that the
use of the historical works to
establish title to the property
cannot be justified on the strength
of Section 57 of the Indian Evidence
Act. The question of title between
the trustee of a mosque, though an
old and historical institution, and a
private person, cannot, in our
opinion, be deemed to be a "matter
of public history" within the
meaning of the said Section."
Reference was also made to the case of Mahant
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Shri Srinivas Ramanydas vs. Suraj Narayan Das and
another (AIR 1967 Supreme Court 256) where it was
observed :
"These statements in the Gazetteer
are not relied on as evidence of title
but as providing historical material
and practice followed by the Math
and its head. The Gazetteers can be
consulted on matters of public
history."
The High Court found that the lower Appellate
Court had erroneously accepted the evidence Exh. P47
that the Pawli temple belong to Digambaris, that it had
also erred in accepting those recitals in the extracts as
’evidence’ to serve as the basis of the findings.
In para 33 of the judgment the High Court
referring to several decisions of this Court held that the
finding of fact reached by the lower Appellate Court that
the field Survey No.197 exclusively belongs to the
Digambaris community and that field Survey No.198/1
jointly belongs to the Digambaris and the Swetambaris
is not binding on the Court in the second appeal. Some
of the decisions referred to are Deo Chand and others
vs. Shiva Ram and others (1969) 3 SCC 307; Ramappa
vs. Bojappa (AIR 1963 SC 1633); Dhirajlal Girdharilal
Vs. Commissioner of Income Tax ( AIR 1955 SC 271);
Sonawati and others vs. Shriram and another (AIR
1968 SC 466); Radha Nath Seal (dead) by his Lrs. Vs.
Haripada Jana (AIR 1971 SC 1049); Sir Chunilal V.
Mehta and Sons Limited vs. Century Spinning and
Manufacturing Co. Ltd. (AIR 1962 SC 1314); Bhusawal
Borosh Municipality vs. Amalqamated Electricity Co.
Ltd. Bhusawal and another (AIR 1962 SC 1952);
Nedunuri Kameswaramma Vs.Sampati Subba Rao (AIR
1963 SC 884) etc. etc..
Discussing the evidence on record in para 35 of
the judgment the High Court held that survey no.
198/1 which was purchased subsequently did not
belong exclusively to the Digambaris as claimed by
them. On the other hand it showed that the purchase
was made from the funds of Shri Antariksha
Parshwanath Sansthan. In para 40 of the judgment the
High Court has discussed the entries relating to the suit
fields made in the revenue records and has discussed
the reasons for holding that the entries do not support
the case of the exclusive claim made by the Digambaris
Jain to the property in the field.
In para 59 of the judgment the High Court held :
"It would thus seem that there is no
documentary evidence at all to show
that the Pawli temple was a separate
Sansthan going under the name
Antariksha Parshwanath Maharaj, as
distinguished and separate from the
Sirpur town Antariksha Parshwanath
temple and Sansthan, or that any such
Pawli temple sansthan, going under
the name of Antariksha Parshwanath,
owned the suit fields as its property."
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The High Court noted the evidence of Nathusa son of
Pasusa, a Digambari Jain examined on Commission, who
made the statement - "There is no other Mandir or
Sansthan known as Antariksha Parashwanath except the
one at Sirpur."
In para 62 of the Judgment the High Court dealt with
the alternative contention raised on behalf of the
Digambaris that in the event of their failure to put forth
any document of title to support their claim of title to the
two suit fields the presumption of lost grant may be
invoked in their favour. In this connection the High Court
noted the following observations of the Supreme Court in
the case of B. Satyanarayana and others vs. Konduru
Venkatapayya and others (AIR 1953 SC 195):
"There is no doubt on the authorities
that a presumption of an origin in
some lawful title may, in certain
circumstances, be made to support
possessory rights long and quietly
enjoyed, where no actual proof of title
is forth-coming, but it is equally well
established that that presumption
cannot be made where there is
sufficient evidence and convincing
proof of the nature of grant and the
persons to whom it was made."
The High Court also quoted the following observation
of the Supreme Court in the case of Manohar Das vs.
Charu Chandra (AIR 1955 SC 228):
"It was a presumption made for
securing ancient and continued
possession which could not otherwise
be reasonably accounted for. But it
was not a "presumtio Juris et de jure"
and the Courts were not bound to
raise it if the facts in evidence went
against it."
Referring to the oral evidence adduced by the
parties in para 63 of the Judgment the High Court held
that the oral evidence on either side is more or less of
little value except insofar as the witnesses on each side
may have yielded in cross examination critical
concessions in favour of their rivals.
The High Court summed up its finding in para 64
of the judgment in the following words:
"Disagreeing with the lower Appellate
Court, I hold that the Digambaris
plaintiffs have failed to prove that the
two suit fields belong to the Pawli
temple or that the Pawli temple itself
belongs to the Digambari Community
or that the two suit fields belong to the
Digambari Community. That finding
clearly entails dismissal of the main
claim of declaration and possession
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laid by the Digambari plaintiffs, except
in respect of decree for their rights of
user as passed by the trial Court."
In para 66 of the judgment the High Court
considered the contention that the present suit is
barred by the principle of res judicata, in view of the
judgment in Civil Suit No.4/1910, and answered the
point in the negative holding that that suit related to
right of worship and exclusive possession or
management of the main town temple of Shri
Antariksha Parshwanath at Sirpur. The issue of title to
the present two suit fields was not directly and
substantively involved in that suit. Therefore, the High
Court held that the decree in Civil Suit No.4/1910 as
ultimately confirmed by the decision of the Privy
Council Appeal No.69/1927 would not operate as res
judicata for the purpose of the present suit.
On the discussions in the judgment the High
Court set aside the decree passed by the lower Appellate
Court and ordered the decree of the trial court to be
restored.
From the discussions in the judgment it is clear
that the High Court has based its findings on the
documentary evidence placed on record and
statements made by some witnesses which can be
construed as admissions or conclusions. The position
is well settled that when the judgment of the final
Court of fact is based on mis-interpretation of
documentary evidence or on consideration of
inadmissible evidence or ignoring material evidence the
High Court in second appeal is entitled to interfere with
the judgment. The position is also well settled that
admission of parties or their witnesses are relevant
pieces of evidence and should be given due weightage
by Courts. A finding of fact ignoring such admissions or
concessions is vitiated in law and can be interfered
with by the High Court in second appeal. Since the
parties have been in litigating terms for several decades
the records are voluminous. The High Court as it
appears from the judgment has discussed the
documentary evidence threadbare in the light of law
relating to their admissibility and relevance.
On perusal of the judgment of the High Court and
on consideration of the matter we do not find that the
judgment suffers from any serious illegality or infirmity
which calls for interference in this appeal filed by
special leave. Accordingly, the appeal fails and is
dismissed with costs.