Allahabad High Court: In two appeals filed by Anjuman Intezamia Masjid Committee (‘Masjid Committee’) challenging the orders dated 31-01-2024 and 17-01-2024 passed by the Varanasi Court, directing the District Magistrate to make appropriate arrangements within seven days for Hindus to conduct worshipping rituals inside one of the sealed basements called Vyas ji tehkhana , inside the mosque premises, Rohit Ranjan Agarwal, J. while upholding the impugned orders, held that there is no illegality or mistake committed by the Court below while appointing Receiver under Order XL Rule 1 CPC on 17-01-2024 and, thereafter, directing for arranging worship in Vyas Ji tehkhana on 31-01-2024 in view of the application 9-C having been allowed earlier and forming part of the earlier order. Further, it said that the worship and rituals performed in the cellar by Vyas family till 1993 was stopped by illegal action of State without any order in writing.
Background:
Shailendra Kumar Pathak ‘Vyas’/ respondent 1 filed a suit before the Court of Civil Judge, Varanasi against the Masjid Committee and Board of Trustees of Sri Kashi Vishwanath Temple, seeking relief of declaration, permanent injunction, mandatory injunction for the property in dispute alleged as ‘Vyas Ji Tehkhana’. As per the plaint, there is a Jyotirlinga established by Lord Shiva himself in Kashi since time immemorial where stands temple of Lord Adi Visheshwar. The said temple is called by the Masjid Committee as Gyanvapi Mosque. There is a tehkhana (cellar) in the southern side of subject building which is the principal seat of hereditary pujari of Vyas family i.e. predecessors in interest of the respondent 1 from time immemorial. Thus, he is entitled to perform puja and other rituals in the same manner which was being performed till the year 1993 within and outside the tehkhana (cellar). The suit was filed against the action of the State Government and district administration restricting respondent 1 to enter the temple and for infringing the fundamental right granted under Article 25 of the Constitution of India. The puja was abruptly stopped by oral orders of the State Government in November and December 1993 and the temple complex was iron fenced.
The Masjid Committee had questioned the appointment of Receiver by the Court below on 17-01-2024 and subsequently by the order dated 31-01-2024 directing the Receiver for arranging worship and rituals of the deities by the priest appointed by respondent 1 and Shri Kashi Vishwanath Trust Board in tehkhana. Further, it submitted that the Court below could not have appointed Receiver under Order XL Rule 1 CPC as the property stood settled as Hanafi Muslim Waqf by the judgment dated in case of Din Mohammad v. Secretary of State, 1942 SCC OnLine All 56. Further, the right to worship could not have been granted under Section 151 or 152 CPC amending the judgment, decree or order as there stood no clerical, arithmetical mistake in the order or errors arising therein from any accidental slip or motion. The Court had become functus officio once application 9-C stood decided on 17-01.2024.
Analysis:
The Court noted that an application 9-C under Order XL Rule 1 CPC was also filed in the month of September 2023 for appointing Receiver and to direct him to protect the property in dispute. The Court below allowed application 9-C on 17-01-2024 and appointed the District Magistrate, Varanasi, as the Receiver. Thereafter, the Court below on 31-01-2024 granted the other relief exercising power under Section 151 read with 152 Code of Civil Procedure, 1908 (‘CPC’).
Ater taking note of Order XL Rule 1 CPC, the Court said that the object of appointing a Receiver is to protect, preserve and manage the property during the pendency of a suit. The words “to be just and convenient” have been substituted for the words “to be necessary for the realization, preservation or better custody, or management of any property, movable or immovable, subject of a suit or attachment”. The Court said that the effect of this amendment is that the Court may now appoint a Receiver not only in a particular case specified in the old section, but in every case in which it appears to the Court to be just and convenient to do so.
The Court said that the existence of Vyas tehkhana owned by Vyas family in the year 1937 is a prima facie proof of the continues possession claimed by the respondent 1 till the year 1993.
After taking note of the five principles laid down in T. Krishnaswamy Chetty v. C. Thangavelu Chetty, 1954 SCC OnLine Mad 374 the Court noted that Court should not appoint a Receiver except upon proof by plaintiff that prima facie he has a very excellent chance of succeeding in suit. Further, a Receiver will not be appointed where it has the effect of depriving a defendant ‘de facto’ possession, since that might cause irreparable wrong. The Court said that the Masjid Committee failed to make a prima facie case, either through pleading or by document regarding their prima facie possession over the disputed property except bald assertions in the objections.
The Court held that there is no illegality or mistake committed by the Court below while appointing Receiver under Order XL Rule 1 CPC on 17-01-2024 and, thereafter, directing for arranging worship in Vyas Ji tehkhana on 31-01-2024 in view of the application 9-C having been allowed earlier and forming part of the earlier order.
The Court said that the appointment of Receiver in no way affects the right or title of any of the party during pendency of the suit, as Receiver is appointed to protect the property being a representative of the Court and of all the parties interested in litigation. He being the officer or representative of the Court is subject to the orders of the Court, and his possession is the possession of the Court.
It further said that the Masjid Committee failed to establish prima facie possession over the disputed property, and respondent 1 succeeded in building up a strong prima facie case negating the stand of Masjid Committee, leads to undeniable situation that stopping worship and performance of rituals by the devotees in the cellar would be against their interest.
The Court said the act of the State Government since 1993 restraining Vyas family and devotees from performing religious worship and rituals was a continues wrong.
After perusing the Temple Act, 1983, the Court said that the definition of ‘Temple’ means the Temple of Adi Vishweshwar, popularly known as Shri Kashi Vishwanath Temple, situated in Varanasi which is used as a place of public religious worship and dedicated to or for the benefit of or used as of right by Hindus, and includes all subordinate temples, shrines, sub-shrines and the asthan of all other images of deities, mandapas, wells, tanks and other necessary structures and land relevant thereto.
The Court said that the respondent 1 succeeded from pleading and his documents regarding possession over the cellar since British era, till it was barricaded, and iron fenced. On the contrary the Masjid Committee has miserably failed to demonstrate its prima facie possession over the cellar. Further, remarking on the over reliance placed on Din Mohammad (supra) where Masjid Committee was deleted from the array of parties, the Court said that this inevitably leads to prima facie conclusion regarding Vyas family possession over the cellar in dispute.
The Court further noted that the Masjid Committee have not claimed the cellar at any point of time from Vyas family after 1937 till December 1993, and said that this leads to an adverse inference against them as to possession over the cellar.
Concerning the submission of the Masjid Committee that grant of interlocutory mandatory injunction amounts to granting of final relief, the Court said that by grant of permission to worship and carry out rituals in the cellar is only to restore the status quo of the last non-contested status and does not amount to final relief.
The Court further said that the worship and rituals performed in the cellar by Vyas family till 1993 was stopped by illegal action of State without any order in writing.
Thus, it was held that in the instant case, the grant of interlocutory mandatory injunction is not a final relief, and rights of Masjid Committee will not be prejudiced as they failed to prima facie establish their possession.
Thus, the Court upheld the impugned orders.
Regarding clash of interest in between the office of the District Magistrate and the Receiver appointed by the Court in view of Section 6 (2) (i) and Section 19 (1) of the Temple Act, 1983 and the District Magistrate having been appointed as the Receiver, the Court said that the Temple Act, 1983 clearly provides the District Magistrate who being the ex-officio Member of the Board of Trustees and also Member of the Executive Committee to act as per the duties of the Board and also to comply the directions of the Board and State Government being the Member of Executive Committee responsible for the superintendence, direction and control of the affairs of the Temple. Thus, once the District Magistrate is performing his duties enumerated under the Temple Act, his appointment as Receiver by the Court who has to act on the direction and supervision of the Court would not lead to any clash of interest.
Concerning the question of limitation, the Court said that it is a mixed question of law and fact, and once the Masjid Committee has not filed its written statement and issues have not been framed, the Court cannot go into such question, leaving it open to the Masjid Committee to raise such question when the issues are framed.
Rejecting the challenge made to the order dated 31-01-2024 on the plea of res judicata, the Court said that the relief prayed by the respondent 1 was granted on 17-01-2024 but part of it was not incorporated in the order which was subsequently modified/amended.
Also read:
[Committee Of Management Anjuman Intezamia Masajid Varanasi v. Shailendra Kumar Pathak Vyas, 2024 SCC OnLine All 441, Order dated 26-02-2024]
Advocates who appeared in this case :
For Appellant: Advocate Syed Ahmed Faizan, Advocate Zaheer Asghar
For Respondent: Advocate Prabhash Pandey, Advocate Pradeep Kumar Sharma, Advocate Vineet Sankalp
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