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CASE NO.: Appeal (civil)  4887 of 2007

PETITIONER: Parayya Allayya Hittalamani

RESPONDENT: Sri Parayya Gurulingayya Poojari & Ors

DATE OF JUDGMENT: 12/10/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T (Arising out of SLP (C) No.10052 of 2005)

S.B. Sinha, J.

1.      Leave granted. 2.      There is a temple in the village Terdal under the Jharkhandi Taluk in  the State of Karnataka, commonly known as \021Sri Prabhudeva Temple\022.   Parties hereto are the hereditary poojaris of the said temple.  They are  entitled to bless the devotees, receive alms and other offerings made by the  devotees throughout the year.  The turn of worship has been amicably  divided and settled, inter alia, amongst the plaintiffs and the defendants.   3.      There were three branches with which we are concerned; one is the  branch of the plaintiff, second is the branch of the defendants and the third is  the branch represented by Parayya Allayya Hittalamani.  The said Allayya  and his wife Neelawwa died without any issue.  The plaintiffs and the  defendant No.1 inherited their right to worship.   4.      Disputes and differences having arisen between the parties in regard  to right of inheritance of offering poojas in the said temple, the father of the  plaintiff filed a suit which was marked as OS No.143 of 1956.  Parties  therein purported to settle their disputes.  The consent terms were filed  which were accepted by the Court.  The said terms are : \023For the present year and the turn of Pooja which  will come after 12 years, the defendant No.1 with  the plaintiff herein and with his help perform the  pooja as usual of Prabhudeva in Neelavva\022s pooja  turn. During the abovesaid pooja\022s time the offerings of  Naivedya to Prabhudeva, fruits corns Oil and Milk  and Curd, Sugar, Jaggery etc. in perishable goods,  defendant No.1 should give half share of  perishable goods to plaintiff and take half of the  perishable goods to himself. In the abovenoted pooja turn the defendant No.1 in  his individual capacity as a poojari receiving gold,  silver, offering (dakshina) etc. the non-perishable  goods the defendant No.1 shall take in that he need  not give any share or goods.\024

5.      Indisputably, the turn of worship so far as the said Allayya was  concerned, comes once in 12 years.  After 1956, the said turn came in 1968.   There exists a dispute as to how the parties hereto shared the offerings in  1968.  However, when the turn again came in 1980, the plaintiffs filed a suit  praying, inter alia, for the following reliefs : \023It may be declared that plaintiffs and their family  members have a joint right of pooja and receiving  offerings of Prabhudev Temple at Terdal along

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with defendant No.1 or his successors regarding  the turn of deceased Neelawwa\022s branch once in  12 years in perpetually. Consequently perpetual injunction may kindly be  issued against the defendants, their relatives and  agents from threatening, obstructing or causing  obstruction to the joint right of the plaintiffs to  perform the Pooja and receive offering during the  turn of Neelawwa\022s branch every twelve years.\024

6.      The said suit was decreed by the learned Trial Judge.  Defendants  preferred an appeal thereagainst.  The learned Court of First Appeal also  affirmed the said decree, inter alia, opining : \023The term in para 2 of Ex.P-2 makes it clear that  silver, Gold, money which are non-perishable  commodities given to deft.1 in his individual  capacity being a poojari should be taken by  himself and he need give any share to the plaintiff  therein.  It makes it clear that any non-perishable  commodities offered to deft.1 in his individual  capacity as poojari of the deity such as gold, sliver  and money should be taken by himself and he need  not give share therein to the plaintiff.  So, any  offerings given in individual capacity of deft.1 as  poojari should be taken by deft.1.  Once example  is sufficient to what kind of offerings given to  poojari in his individual capacity is given, i.e., if  the poojari removes heirs of a child during Javala  ceremony and parents of the child given any  offerings such gold, silver and money to poojari he  should take it as it is given to him being poojari in  his individual capacity for performing Javala  ceremony.  Such offerings made to poojari in his  individual capacity should be taken by the father of  deft.1 and deft.1 should take same but not offering  made in the form of gold, silver and money to  deity and they should be shared by deft.1 and  plaintiffs together as per the decree at Ex.P.2  If it  was the intention of the parties, the father of deft.1  should have taken all the offerings made to deity in  non-perishable commodities for himself in 1955- 56 and 1968-69.\024

7.      Both the Trial Judge as also the First Appellate Court furthermore  took into consideration the documents marked as Exhibit P-1 as also Exhibit  P-3 executed by the father of the defendant No.1 in favour father of the  plaintiff wherein it was categorically stated that plaintiff\022s branch had equal  right in worshipping the deity during the turn of Nilawwa and he had right to  receive alms equally.  In this respect, the learned Court of appeal held : \023This goes to prove that father of deft.1 has  admitted that father of the plaintiffs was the  nearest heir of Neelawwa and he has also right in  the property of Neelawwa such as land Sy.No.759  and right to worship of Prabhuswami.  Ex.P.3 is  dated 23.03.1965.  Even subsequent to Ex.P.2  father of deft.1 confirmed that father of the  plaintiffs is nearest heir to Neelawwa and he has  no objection for the property to be shared by father  of the plaintiffs such as land and right to worship  during turn of Neelawwa.  The evidence led by the  plaintiff is overwhelming the evidence of the  defendants and as such after considering the  evidence the learned Munsiff has rightly held that

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the plaintiffs are entitled to receive half of non- perishable offerings such as gold, silver and money  made to deity and deft.1 should perform pula along  with the plaintiffs and they have equal right in  worshipping deity and there is no distinction  between the plaintiffs and deft.1 in worshiping the  deity and he has rightly decreed the suit of the  plaintiffs.\024

8.      Defendants filed a second appeal before the High Court which was  marked as Revision Second Appeal No.250 of 1992.  The High Court,  however, was of the opinion that as both the parties would get their turns  alternatively, i.e., once in 12 years, the courts below committed a mistake in  mixing up that issues wrongly with the real dispute, stating : \023The reference to the individual functions in the  decree is very clearly to the fact that since the right  to perform the pooja was alternative, that it was a  reference to the functions performed by the party  in that particular year when the officiating party  was in charge.  This cannot be confused with a  situation whereby the poojari may perform  individual functions at some other place de hors  these functions and for which he may receive  separate offerings.  This is basically the essence of  the matter and since it has been very clearly and  conclusively decided in the earlier compromise  terms, there could be no question of re-opeining  that issue.  To this extent, therefore, the  submission canvassed by the appellant\022s learned  counsel that the suit itself as farmed was not  maintainable, is full justified.\024

9.      The matter, however, was taken to this Court by the respondents being  SLP (C) No.2109 of 1999 and on leave having been granted, this Court by a  judgment and order dated 15.9.2004 noticed that even no substantial  question of law was formulated by the High Court whereupon the same was  set aside and the matter was remitted to the High Court for formulating  substantial questions of law.   10.     The High Court thereafter formulated the following substantial  questions of law : \023(1) Whether both the Courts ignored the weight  of preponderating circumstances while construing  the contents of compromise decree arrived at  between the predecessors-in-title of the parties to  the suit and allowed their judgments to be  influenced by inconsequential matters, whether  High Court would be justified in re-appreciating  the evidence and in coming to its own independent  conclusion? (2)     Whether both the Courts below erred in  misconstruing Ex.P-2, the compromise arrived at  between the predecessors-in-title in question for  purposes of ascertaining the foundation of the suit  itself and if so whether that error is to be interfered  with in the exercise of High Court\022s power under  Section 100 of CPC?\024

11.     Both the aforementioned questions were answered by the High Court  in the affirmative.  It was of the view that as compromise decree was binding  between the parties and the dispute between them was governed by the said  compromise decree, the plaintiffs\022 suit was not maintainable, stating : \023It is clear from the conditions of performance of  pooja as per the terms of the compromise decree

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that the right of performing pooja during the turn  of Neelawwa and Allayya is conferred upon the  father of the first defendant and the pooja during  that turn has to be performed by the father of the  first defendant with the assistance of the father of  the plaintiffs and no joint right has been conferred  and regarding the offerings made by the devotees  so far as the perishable articles are concerned, they  are to be divided equally and non-perishable  offerings such as gold, silver, dakshina (cash) etc.  which are not perishable, offered individually to  the father of the first defendant shall be taken by  him exclusively and no such offerings shall be  given to Parayya Allayya Hittalamani, i.e., father  of the plaintiffs and the plaintiffs being the legal  representatives, being the sons of Parayya Allayya  Hittalamani cannot claim of a higher share than  that is conferred upon them by the father of the  defendant and which is in fact the basis of the  plaint and, therefore, it is clear that the judgment  and decree passed by the Courts below cannot be  sustained and the same are liable to be set aside as  they are perverse and arbitrary being based upon  irrelevant material and being contrary to the terms  of compromise decree which is admitted by both  the parties as binding upon them.\024

12.     Mr. Mahale, learned counsel appearing on behalf of the appellant,  submitted that the High Court committed a serious error in passing the  impugned judgment insofar as it failed to take into consideration that in  terms of condition No.2(C) of the agreement, the first respondent was not  entitled to gold, sliver and money etc. which were offered to the deity and  not to himself in his personal capacity. 13.     Mr. Chandrashekhar, learned counsel appearing on behalf of the first  respondent, on the other hand, urged that the High Court having rightly  arrived at a decision that the plaintiff\022s suit was barred by res judicata and  the disputes between the parties being covered by the consent decree, the  impugned judgment is unassailable.   14.     A consent decree, as is well known, is a contract between the parties  with the seal of the Court superadded to it.  {See Baldevdas Shivlal & Anr.  v. Filmistan Distributyors (India) P. Ltd. & Ors. [(1969) 2 SCC 201] and  Hindustan Motors Ltd. v. Amritpal Singh Nayar & Anr. [100 (2002) DLT  278]}. 15.     We are, however, not oblivious of the fact that such consent decree  may operate as an estoppel.  {See Sailendra Narayan Bhanja Deo. v. The  State of Orissa [(AIR 1956 SC 346]}. 16.     It is equally well settled that which construing a decree, the court can  and in appropriate case ought to take into consideration the pleadings as well  as the proceedings leading upto the decree.  In order to find out the meaning  of the words employed in a decree, the Court has to ascertain the  circumstances under which these words came to be used. {See Bhavan Vaja  & Ors. v. Solanki Hanuji Khodaji Mansang & Anr. [AIR 1972 SC 1371]}. 17.     It is now also a trite law that in the event the document is vague, the  same must be construed having regard to surroundings and/or attending  circumstances.  18.     The nature of the document also plays an important part for  construction thereof.  The suit filed by the parties, inter alia, involved the  question of interpretation of the said consent decree.  Parties adduced  evidences, inter alia, in regard to the nature of poojas and offerings made to  the priest in their individual capacity.  The dispute between the parties  related to right of worship upon inheritance thereof from their predecessor.   Their rights in regard to offer poojas in the temple are itself not in dispute.   In a case of this nature where a consent decree does not refer to the entire  disputes between the parties and some vaguness remained, the factual  background as also the manner in which existence of rights have been

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claimed by the parties would be relevant.           The consent decree, appears to be meant to be operative for a limited  period viz. 1956 and 1961.         Section 92 of the Evidence Act in a situation of this nature, in our  opinion, cannot be said to be attracted.   19.     A consent decree must be construed keeping in view the lega  principles as noticed hereinbefore.  The right of the parties to offer pooja had  not been disputed.  Clause 2(A) of the consent decree was not determinative  of the status of the parties.  Their rights and obligations are not clearly spelt  out thereby.  In the aforementioned situation, the recital to the effect that  Pooja has to be performed \023as usual\024 is significant.   20.     No difficulty arises in giving effect to clause 2(B) of the consent  decree.  It is not necessary for us to consider the same.  Clause 2(C),  however, deserves our attention.  It speaks of offerings of non-perishable  goods were to be offered to the defendant No.1 in his individual capacity.   The parties to the compromise knew as to why the said expression had been  used.  If any of the party to the suit was entitled to keep with him even such  non-perishable goods which were to be offered to the Deity, the question of  using the terms \023in his individual capacity\024 was not necessary.  The parties,  therefore, were allowed to lead evidence, to show as to what ceremonies are  performed by the Priest in his individual capacity and not necessarily  offering pooja to the Deity.  A devotee may arrange a special ceremony or a  special pooja and entrust the same to be done by one or the other Priest of  the said temple.  The courts, therefore, were required to construe the terms  implied in the consent decree having regard to the customs in regard to  holding of religious and other functions in the temple by the devotees. 21.     Equally important was the conduct of the parties soon thereafter.  We  have noticed hereinbefore that the father of the defendant No.1 executed  deeds of sale in favour of the plaintiff\022s father.  The relationship between the  parties and their status were referred to therein.  Defendant No.1\022s father in  the said document accepted the right of the plaintiff\022s father of having equal  right to the offerings and offer poojas during the turn of said Neelawwa.  It  is not the case of the defendants that such statements came to be made by  reason of any fraud or inducement or threat on the part of the plaintiff\022s  father.   22.     That being so, the said statements were relevant.  The learned Trial  Judge as also the Court of the First Appeal, in our opinion, cannot be said to  have committed any mistake in taking the same into consideration for  determining the rights of the parties.  The High Court, in our opinion, was,  thus, not correct in reversing the judgment and decree passed by the learned  Trial Judge as also the Court of Appeal. 23.     We, however, make it clear that we have not gone into the question as  to whether any offerings made in Hundies for development shall go to any of  the parties or not.  Such a question having not been gone into by the courts  below, we refrain ourselves from doing so.  24.     For the reasons mentioned above, the impugned judgment is set aside.   The appeal is allowed.  However, in the facts and circumstances of the case,  there shall be no order as to costs.