26 November 1970
Supreme Court


Case number: Appeal (civil) 158 of 1967






DATE OF JUDGMENT: 26/11/1970


CITATION:  1971 AIR 2540            1971 SCR  (2) 836

ACT: Worship-Right  of-If  of  a  civil  nature  for  which  suit maintainable--Idol of Adeshwarji in temple at Paroli-If idol of Digambri or Swetambri Jain sect idol.

HEADNOTE: Respondents  1 to 9 filed a suit against the Appellants  and some  of the other respondents for a declaration  that  they hid  been  carrying  on, and were entitled  to  the  worship without interference of the idol of Adeshwarji in the temple named  after him at Paroli according to the tenets  observed by  the Digambri Sect of the Jain religion.   They  further alleged  :  that  the temple was constructed  and  the  idol consecrated according to and by the followers of their sect; that  in  December, 1949, the defendants  had  attempted  to convert the said idol into the idol of the Swetambri Sect by putting   Chakshus  (artificial  eyes)  thereon,  but   were prevented  due  to strong opposition of  the  followers  of Digambri  Sect.   It was claimed that although  a  temporary settlement  was  reached  between the two  sects  while  the rights in the temple were to be adjudicated upon by a  Civil Court,  the  defendants had made arrangements to  alter  the temple  according  to  their  tenets  and  that  they   were intending  to enclose the idol by doors and locks  with  the object of interfering with the free exercise of a Digambris’ right to worship the idol.  It was therefore prayed that the defendants  be  restrained by a  permanent  injunction  from altering the nature and shape and appearance of the idol  in any manner or from doing any act which would interfere  with the right of worship of the followers of the Digambri  Sect. The  defendants denied that the Digambri Sect had any  right of  worship of the idol or had ever exercised such  a  right and  contended  that  the  idol and the  temple  is  in  all respects a temple of the Jain Swetambri Sect. The  Trial Court decreed the suit and the District Judge  in appeal as well as the High Court confirmed the decree.   The High  Court also fixed three hours a day when the  Digambris may use the temple for worship- In  appeal  to this Court, it was contended  inter  alia  on behalf  of  the appellant that the reliefs claimed  made  it clear  that the dispute was not of a civil nature; and  that



the judgment of the Trial Court was wholly vitiated  because the  Trial Judge not having accepted the  evidence  produced before  him, based his findings on his own  inspection.   It was also contended that unless the ownership of the  temple, was  established or that the idol belonged to  the  Digambri Sect, no injunction could be given nor could the respondents be permitted to worship there; in the plaint the respondents had averred that the idol is a Digambri idol and as they had failed to prove this, their right to worship also failed. HELD:Dismissing the appeal, (i)From  the  pleadings and the  controversy  between  the parties  it was clear that the issue was not one  which  was confined merely to rites and rituals but one which  effected the  rights of worship.  If the Digambries have a  right  to worship at the temple, the attempt of the Swetam- 837 belies  to put Chakshus or to place Dhwajadand or Kalash  in accordance with their tenets and to claim that the idol is a Swetamberi  idol  was  to  preclude  the  Digamberies   from exercising  their  right  to worship  at  the  temple,  with respect to which a civil suit is maintainable under  Section 9  of  the  Civil Procedure Code.   This  position  is  well established. [843 B] Sir  Seth  Hakam Chand & Ors. vs.  Maharaj Bahadur  Singh  & Ors.,  60  I.A. 313 and Nar Hari Sastri and Ors.  vs.   Shri Badrinath Temple Committee, [1952] S.C.R. 849, referred to. (ii)While,  giving  his findings the Trial  Judge  remarked that  the  evidence  led by the Plaintiffs  appeared  to  be correct.   These  observations  themselves  show  that   the evidence on record was an element in the formulation of  the Trial Court’s judgment buttressed by the observations of the learned Judge during the site inspection. it was clear  that the  description given by the learned Judge of the idols  in the  Adeshwarji  Temple and the Temple of  the  Swetemberies were  observations made during an inspection at  which  both the  Plaintiffs  and Defendants Advocates were  present  and that  there  must  have been notes also in  respect  of  the inspection made on both the occasions.  There was  therefore no validity in the contention that the finding of the  Trial Judge  was based entirely on the result of  his  inspection. [844 G-845 C] (iii)The  concurrent findings of the Courts below  that the idol was Nirker’ (naked), that there were no  Chakshus, no Mukat, no Armlet, no Dhwajadand or no Kalash, would  show that  the idol was consecrated by the Digamberies.   It  was also  clear that it was an ancient temple and that both  the Digamberies  and the Swetamberies worship the idol.  It  was not  denied that while the Digamberies will not  worship  an idol  which has Chakshus or which has clothes or Mukat,  the Swetamberies  would worship a Digamberi idol  without  these and hence the right to worship a Digamberi idol by both  the sects is possible and it has been rightly so held by all the courts. [846 E] Once  the  right of worship of Digamberies  was  established they would be entitled to the injunction sought for by them against   the   Appellants  from   preventing them   from worshiping  or from interfering with that right  by  placing Chakshus in the idol, Dhwajadand, Kalash on the Temple.. The  directions  of the High Court extending  the  time  for worship  by Digamberi Sect from one hour to three hours  was not unreasonable. [848 A-B]




CIVIL APPELLATE JURISDICTION: Civil Appeal No. 158 of 1967. Appeal by special leave from the judgment and order  dated August  5, 1966 of the Rajasthan High Court. in S. P.  Civil Regular Second Appeal No. 222 of 1964. S.   T. Desai, P. C. Bhartari, J. B. Dadachanji and  Pukhraj Singh, for the appellant. S.V. Gupte, K. K. Jain and H. K. Puri, for respondents Nos. 1 to 9. That Judgment of the Court was delivered by P.Jaganmohan,  Reddy, J. This Appeal by Special Leave  of this Court is against the Judgment of a Single Judge of  the Rajas- 838 than  High Court affirming the Judgment and decree  of  the, District Court with certain variations. Respondents  1 to 9 filed a suit against the Appellants  and Respondents 10 and 11 and two others for a declaration  that they have  been carrying on and are entitled to  carry  on Darshan, Prakshal and Poojan etc. of the idol of Adeshwarji, the first Tirthankar in the Temple named after him at Paroli without interference according to the tenets observed by the Digambri Sect of the Jain religion.’ The said Temple of Shri Adeshwarji  is said to have been in existence for 200  years while, the Respondents aver that the inscriptions on it bear Vikram Samvat 1510 (1454 AD). The   Plaintiffs  further  alleged  that  the   Temple   was constructed and the idol, was consecrated according to  and by  the followers of the tenets of the Digamber  sect;  that the Plaintiffs and the other followers of the Digamber Sect have  been  performing Darshan, Prakshal and Poojan  of  the said  idol according to their tenets every since the  Temple was  founded;  that  on  the  23rd  of  December  1949   the Defendants attempted to convert the said idol into the  idol of  Swetambri  Sect by putting Chakshus (artificial  eyes  ) thereon,  but  were  prevented from doing  so  by  a  strong opposition  of  the  followers of the  Digamber  Sect;  that thereafter some temporary arrangements were made between the followers  of  the  two Sects who  agreed  to  maintain  the status-quo until a decision of the Civil Court on the rival claims  of the parties was given; that in disregard  of  the temporary  settlement and without getting the rights in  the Temple  adjudicated upon by the Civil Court, the  Defendants made  arrangements to put Dhwajadand and Kalash on the  said Temple  according  to  their tenets,,  and  that  they  also further learnt that the Defendants were intending to enclose the said idol by putting up doors and locks with the. object of interfering with and obstructing the free exercise by the Digamberies  of their unfettered rights to  perform  Poojan, Prakshal  and worship of the said ideal according  to  their tenets.   On  these  allegations  it  was  prayed  that  the Defendants be restrained by a permanent injunction from  (i) erecting  the  Dhwajadand,  and  putting  up  Kalash;   (ii) enclosing the idols by putting up doors and locks; or in any manner  altering the nature and shape and appearance of  the idols   installed  in  the  said  Temple;  or  directly   or indirectly doing any act or thing which may have the  effect of wounding the religious susceptibilities and sentiments of the  followers  of the Digamberi-Jain Sect; and  (iii)  from interfering  with  the  free and unfettered  rights  of  the Plaintiffs  of performing Darshan.  Prakshal and Poojan  and other rites according to the tenets of Digamber Jain Sect.                             839 The  Defendants did not deny that they,intended to  put  the Netras’  but said that they did so because the Netras  which the idol had even  before the said date having been  damaged



and  fallen  out,  new Netras were  put  up.   They  further claimed  that since its existence the Temple  of  Adeshwarji has  been in the possession of the Defendants who have  been in exclusive management of the Temple and its property; that the  Plaintiffs never used to do Poojan or Prakshal  in  the Temple nor had they any Tight thereto, and that when in 1949 there  was  a  dispute  between  the  parties  a   temporary arrangement  was made but the Defendants did not  admit  any right of Plaintiffs to Poojan.  It, was further averred that the  said-  idol  and the Temple is  in  all  respects  Jain Swetambri  Sect, that it has been so used and  described  in all  the  historic records from time to time  and  that  the Civil  Court  had no jurisdiction to  decide  the  religious rights of the parties nor is it a dispute of a civil nature. On these pleadings issues were framed on 3-12-55 but  subse- quently  after  the evidence in the case  was  recorded  and having   regard   thereto  fresh  issues  were   framed   in substitution of the former ones on 4-6-57 but thereafter  no evidence  was led by either party.  The controversy  between the parties as is evident from these issues was, as to which Sect of the Jains the main idol of Adeshwarji belongs, which Sect has constructed the upper portion of the idol  referred to  and the nearby portion of the temple; under what  tenets have  the  followers of the Sects, Digamber  and  Swetamber, performed  Darshan, Prakshal and Poojan of the idol  of  the temple  referred to and can any Sect change  those  previous tenets-,  whether the Notras (artificial   eyes)  of  the idol, Bhujband and Dhwajadand over the temple existed before and if not, can they be placed and inserted now; and whether the Temple is in possession and under the management of  the Defendants alone from the time it came into existence. The  Civil Judge of Bhilwara decreed the suit of the  Plain- tiffs, against which the Defendants appealed.  The  District Judge, however, allowed the appeal and dismissed the suit on the  ground that in his opinion no question of any right  to property   or   office  was  involved  in  the   suit’   and consequently the plaintiffs suit was dismissed with costs. On  an appeal from this Judgment the High Court allowed  the Appeal  holding  that  inasmuch as the  allegations  in  the plaint  relate to an assertion of a right of worship and  an interference  with  that right, a dispute  of  civil  nature arises  which is, clearly cognizable by a Civil  Court.   In this view the case was, remanded to the District Judge  for determining the appeal on merits.  Leave to Appeal was  also refused. 840 After  remand the District Judge confirmed the Judgment  and decree of the Trial Court with certain variations.   Against this  Judgment  the Appellants filed an appeal to  the  High Court and the Respondents filed cross objections.  The  High Court affirmed the Judgment of the District Judge except for that  part  of the decree directing the Appellants  to  keep open  the  doors of the Temple between 8.30  and  9.30  each morning  to  enable  the  Respondents  to  worship   without interference,   which,  however,  was  modified  to   enable Respondents  to  worship at the Temple between 6 a.m.  to  9 a.m. every morning, during which time the Temple was not  to be  locked.   It further directed that if  the  Swetambaries wanted also to worship during this period without disturbing the Digamberies they had the liberty to do so. The  learned  Advocate for the Appellants Shri S.  T.  Desai urged  several  contention before us namely;  (i)  the  High Court  was  in error in not deciding the  ownership  of  the Temple or of the idol; (ii) that it should have held that  a presumption  of ownership would arise having regard  to  the



concurrent findings that the Swetamberies were in management and possession of the Temple; (iii) that the reliefs claimed make it clear that the dispute is not of a civil nature  for in  any  view of the matter the Courts were  in  error  that placing  of the Dhwajadand and Kalash on the Temple  changes the  nature of the temple; (iv) that the High  Court  should not  have accepted the cross appeal fixing 3 hours time  for the  worship of the Digamberies Sect; (v) that the  Judgment of  the  Trial Court is wholly vitiated  because  the  Trial Judge not having accepted the evidence based his findings on his own inspection. Before  as deal with these contentions, it is  necessary  to detail the findings of the Courts below The  Trial Court while decreeing the Plaintiff’s  suit  held that though it was not proved as to who built the Temple  of Adeshwarji  initially,  both  Digamberies  and  Swetamberies worshipped  in the said Temple; that the management and  the possession   of   the  Temple  was   with   the   Defendants Swetamberies for a long time, that the Swetamberies were not entitled  to  put artificial eyes or to  put  Dhwajadand  or Kalash on the Temple; and that the Defendants were trying to interfere with the rights of the Plaintiffs’ and were making alterations  to transform the character of the  Temple.   In this  view the Trial Judge gave a declaration in  favour  of the Plaintiffs against Defendants in their personal capacity as  well  as representatives of the Jain  Swetamberies  Sect that  the Plaintiffs or the followers of the Digamberi  Sect have  been performing Prakshal, Poojan and Darshan  and  are also  entitled  to  do  so in  future.   He  also  issued  a permanent  injunction  against the Defendants in  their  personal capacity as well as representatives                             841 of  the Jain Swetamberi Sect restraining them from  changing the  shape  and  appearance of the idol  by  putting  Netras (artificial   eyes),  Armlets,  and  Mukat,  from   erecting Dhwajadand  and  putting Kalash on the  Temple  and  putting locks  on the shutters of the Temple.  The  Appellants  were further  directed not to restrain the followers of the  Jain Digamber  Sect from performing Darshan, Poojan and  Prakshal according  to  their tenets.  After  the  remand  Appellants urged before the District Judge the following contentions : (1)That  the  Temple  belongs to Swetamber  Sect  and  the Plaintiffs  are entitled to have Darshan only of  the  idol, otherwise they have got no right to worship it according  to their tenets; (2)  That the idol being Swetamberi, the Defendants are entitledto put artificial eyes in the idol, Dhwajadand and Kalash  on them Temple; (3)  That the Defendants having been managing the Temple for the   last  so  many  years,  their  management  cannot   be interfered  with  it for the betterment of the idol,  it  is kept  under lock, it cannot be said to wound the  sentiments and religious feelings of the Plaintiffs. The District Judge held on the first contention that  though the Temple is admittedly an old one there is not an iota  of evidence  as to who constructed the Temple originally;  that the  Appellants have been in management- and  possession  of the  Temple,  which fact was not really  challenged  by  the Respondents,  though this by itself does not imply that  the Temple  is a Swetamberi Temple.  It was also contended  that the  Respondents  had no right to worship the idol  but  can only  have Darshan.  This contention was also rejected on  a review  of  the evidence led by both parties, and  also,  by relying  on Exh. 1 which embodied a compromise  between  the two  Sects  under  which the right  of  the  Respondents  to



worship the idol was specifically admitted. On the second point urged before him the District Judge held that the Appellants case that there were eyes already in the idol, but as they got damaged they wanted to replace them is not  substantiated  by  the evidence led on  behalf  of  the Appellants  themselves.  It also held that an  attempt  was made by, the Swetamberies in 1949 to install the eyes in the idol and that as most of the Appellant’s witnesses  admitted that  though  Dhwajadand was offered  on  certain  occasions which  were retained by the Oswals (Swetamberies) there  was no Dhwajadand and Kalash on the temple itself. On the third point it was held that the Appellants, who were in  management and possession of the Temple for the last  so many- 842 years,  have a right to lock the main Temple, to prevent  it from  being  defiled, which does. not in any  way  interfere with  the right of worship of the Respondents or  any  other person  on  their behalf.  This being so’ the  Trial  Courts decree excepting for restraining the Appellants to lock  the Temple  was  affirmed subject to  the  further,direction  as already  noticed keeping the Temple open for worship of  the Respondents  and the Digambaries Sect between 8.30 and  9.30 a.m. When the appeal and cross objections were pending before the High  Court the Appellants filed an application under  Order 41,  Rule 27 of the Civil Procedure Code for  recording  the evidence  of  Shri  Satya Prakash  Srivastava,  Director  of Archaeology   and   Museum,  Rajasthan  to   establish   the denominational identity of. the idol in the Temple.  It  was stated in that, application that since he District Judge had remarked  that  the  parties  had  not  produced  sufficient evidence and it was not possible to come to any  conclusions regarding  the  nature  of  the idol as  to  whether  it  is Swetamberi or Digamberi, the petitioner had moved the Direc- tor  of Archeology who after a thorough examination came  to the  conclusion  that the idol was Swetamberi.  In  view  of this  Report it was prayed that the said Director be  called in  evidence  and be examined.  In the  alternative  it  was prayed  that  the case be remanded to the  Trial  Court  for allowing  the  parties to lead additional evidence  so  that effective   adjudication  can  be  made.   The  High   Court however,- did not feel the need for any additional evidence as the case could be disposed of on the material on  record. In  this view it dismissed the application.  Even before  us the learned Advocate for the Appellant tried to persuade  us to look into that Report and urged that the evidence of  the Director was necessary and ought to have been allowed to  be adduced.   In  view of the concurrent findings  of  all  the Courts  on certain material aspects of the case to which  we shall  presently  refer,  it is possible  to  determine  the controversy  between the parties, as such we agree with  the High  Court that no additional evidence is required at  this stage, though the parties could have led better evidence  in the initial stages itself. It  was further contended on behalf of the  Appellants  that the Respondents suit was not maintainable because it did not involve  a dispute of a Civil nature.  Respondents’  learned Advocate  though  he first indicated that he would  raise  a preliminary objection to this contention being urged because when  the High Court set aside the Judgment of the  District Judge and remanded the case to be decided on merits holding that  the suit was maintainable as it raised a dispute of  a civil  nature, the Appellants ought to have appealed to  the Supreme  Court.   The learned Advocate  for  the  Appellants



however contends that the remand order of the 843 High  Court  did not finally dispose of the  rights  of  the parties  as  such it is open to him to urge in  this  appeal that  the  suit was not maintainable on the ground  that  it does  not raise any dispute of a civil nature.   Though  the preliminary  objection was not subsequently pressed even  on the merits, the learned Advocate for the Appellant is unable to satisfy us that the suit is not of a civil nature.   From the pleadings and the controversy between the parties it  is clear that the issue is not one which is confined merely  to rites  and  rituals  but one which  effects  the  rights  of worship namely whether the Swetamberies by placing Chakshus, Dhwajadand  and  Kalash  according to  their  tenets  or  by locking  the  temple  could preclude  the  Digamberies  from worshipping in accordance with their tenets.  It is admitted that the Digamberies will not worship the idol which is  not Nirakar’  or which has Chakshus.  If the Digamberies have  a right   to  worship  at  the  temple  the  attempt  of   the Swetamberies  to  put  Chakshus or to  place  Dhwajadand  or Kalash in accordance with their tenets and to claim that the idol  is a Swetamberi idol was to preclude  the  Digamberies from exercising their right to worship at the temple.  These findings  clearly establish that the  Appellants  interfered with  the rights of Digamberies to worship with  respect  to which  a civil suit is maintainable under Section 9  of  the Civil  Procedure Code.  This position is  well  established. If authority was needed we may refer only to two cases.  The Privy  Council  in Sir Seth Hukam Chand &  Ors.  v.  Maharaj Bahadur  Singh  & Ors.(1), had to deal  with  the  practices observed  by Digamberies and Swetamberies on  the  Parasnath Hill which is considered to be sacred by. both the Sects but in  respect  of  which  the  Digamberies  objected  to   the continuous  employment  of  human beings  on  the  Hill  and against building thereon of Dwellings necessarily  involving according  to their tenets of a sacrilegious  pollution  and desecration  of the sacred hill, while the Swetamberies  had no such belief.  Sir John Wallace delivering the opinion  of the  Board  observed  :"These  are  matters  for  the   Jain themselves and the Civil Courts are only concerned with them in  so far as they are relevant to questions of civil  right such  as an alleged interference with the Plaintiffs  rights to  worship on the hill, and in that case the issue must  be not  whether the acts complained of are in  accordance  with orthodoxy or with previous practice, but whether they do  in fact interfere with the plaintiff’s rights of worship". Again  this  Court  in Nar Hari Sastri and  Others  v.  Shri Badrinath  Temple  Committee  (2 ) was  concerned  with  the rights  of  the  Deoprayagi Pandas to  enter  the  Badrinath Temple  alongwith  their Yajmans or clients,  which  it  was claimed  the  Pawal or the Trustee denied  and  threaten  to obstruct the said Deoprayagi (1)  60 LA. 313. (2)  [1952] S.C.R. 849. 844 Pandas from entering the precincts of the Temple along  with their  Yajmans or from assisting the pilgrims in the  matter of Darshans etc. inside the Temple.  The Defendant  however, asserted  that it was neither necessary nor  desirable  that the plaintiffs should be allowed to accompany their  Yajmans or clients into the Temple, as he had himself made  adequate arrangements for the Darshan and worship of the pilgrims and that  as the sole Trustee and manager of the Temple  he  had the  right  to regulate entry into the Temple so  the  over- crowding  might be avoided and order maintained  inside  it.



Mukerjea  J, (as he then was) speaking for the Court  dealt with this contention in the following passage               "The  true  position  therefore  is  that  the               Plaintiffs’ right of entering the temple along               with  their  Yajmans is not  a  precarious  or               permissive  right depending for its  existence               upon  the arbitrary discretion of  the  Temple               authorities;  it is a legal right in the  true               sense   of  the  expression  but  it  can   be               exercised  subject to the  restrictions  which               the Temple Committee may impose in good  faith               for  maintenance of order and  decorum  within               the Temple and for ensuring proper performance               of  customary  worship.  In our  opinion,  the               Plaintiffs  are entitled to a  declaration  in               this form." It  is  clear therefore that a right to worship is  a  civil right,  interference with which raises a dispute of a  civil nature  though  as  noticed earlier  dispute  which  are  in respect of rituals or ceremonies alone cannot be adjudicated by  Civil Courts if they are not essentially connected  with Civil rights of an individual or a sect on behalf of whom  a suit  is filed.  In our view the contention of  the  learned Advocate  for  the Appellant to the maintainability  of  the suit is not well founded. One  other  objection  which the learned  Advocate  for  the Appellants  urged at the outset is that the findings of  the Trial  Judge  are vitiated because he did not  rely  on  the evidence  on  record but decided to which Sect the  idol  in dispute belongs, only on what he found on his inspection  of the  idol  and the Temple which cannot be  evidence  in  the case, without his being subjected to cross-examination.   It is  further contended that even if what has been  stated  in the  Judgment  is what the Trial Judge had observed  in  his inspection  there  is nothing to show that he had  drawn  up inspection  notes  and  made  them part  of  the  record  as required under the law.  The contention that the Trial Judge had  given  his  findings mainly on  the  observations  made during  his  inspection  in  the first  place  is  based  on insufficient  appreciation of what was really observed  when dealing with the question as to 845 which Sect the idol in dispute belongs.  It was observed  in the  Judgment that most of the witnesses produced were  non- Jains  and  therefore, their evidence does  not  carry  much weight  to establish to which Sect the idol belongs.   After stating  that  the remaining witnesses of the  parties  have given  statements in favour of their party the  Trial  Judge said that these statements also cannot be much relied  upon. The  decision  of  his  case is based  mostly  on  the  site inspection  and the evidence on record.  Even  while  giving the findings the Trial Judge remarked that the evidence  led by the Plaintiff appears to be correct.  These  observations themselves  show that the evidence on record was an  element in the formulation of the Trial Courts Judgment buttered  by the  observations  of  the learned  Judge  during  the  site inspection.    There  is  therefore,  no  validity  in   the contention  that  the finding of the Trial Judge  was  based entirely  on  the  result of his  inspection.   It  is  also evident  from a narrative given in the Judgment of what  was noticed  during the inspection that the Judge had  inspected the site on two occasions once on 24-3-1956 and again a year and  two months thereafter on 23-5-1957.  The details  given by  him  could not have been given if he had not  made  some inspection notes.  It would also appear that at the time  of



the  inspection Council for the Plaintiffs-  and  Defendants were  present because when giving a description of the  idol of  Neminathji  in the Swetemberi Jain Temple  when  it  was noticed  that some portion of the idol under the  waist  and naval  is  raised and is like a line, the  Council  for  the Plaintiffs pointed out to him that mark denoted the  wearing of a loin cloth while the Counsel for the Defendants said it was  the  mark  of  an Artist.   Again  in  respect  of  the observation  that on the back-side and at the lower  portion of  the  navel some portion is raised, the Counsel  for  the Plaintiffs  had  pointed out to the loin  cloth,  while  the Counsel for the Defendants said that it has been engraved by an  Artist  without any sense.  We are  satisfied  that  the description  given by the learned Judge of the idols in  the Adeshvarji  Temple and the Temple of the  Swetambaries  were observations  made  during an inspection at which  both  the Plaintiffs’ and Defendants’ Advocates were present and  that there must have been notes also in respect of the inspection made  on both the occasions.  The Appellants had at no  time made a grievance either to the District Judge or to the High Court  or even before this Court except during the stage  of arguments  that there were no inspection notes nor that  the inspection  was  made by the Judge behind the  back  of  the parties.  if  these objections had been raised  earlier  the Respondents  would have had an opportunity of  showing  that there  were inspection notes.  The Judgment in our  view  is not  based solely on the result of personal inspection  made by the Trial Judge, which inspection was for the purposes of understanding the evidence in the case and has been so  used by the Trial Judge.  We must, 846 therefore, reject the contention of the learned Advocate for the  Appellants that the finding in respect of the  idol  is vitiated.  In this view it is not necessary to deal with any of the decisions referred to before us. It was contended by Shri Desai that unless the ownership  of the  Temple is established or that the idol belongs  to  the Digamberies  no injunction can be given nor  the  Plaintiffs permitted  to worship.  It is argued that in the plaint  the Respondents wavered that the idol is a Digamberi idol and if they  have  failed to prove it then their right  to  worship fails.   At  any rate the argument proceeds  that  the  High Court  was  in error in not deciding the  ownership  of  the Temple or of the idol.  We have earlier indicated the plaint averments  in which there is no mention of the ownership  of the Temple or of the idol but that paragraphs 2 and 3 of the plaint merely gave a description of the Temple and the  idol when  it  is  averred  that the  idol  was  constructed  and consecrated  according  to  and  by  the  followers  of  the Digamberi  Sect  and  that  the  Plaintiffs  and  the  other followers  of  the  Digamberi  sect  have  been   performing Darshan,  Prakshal and Poojan of the said deity in the  said Temple  for a considerable number of years past  and  really ever  since  the Temple was founded.   There  is  therefore, force in the contention of Shri Gupte, learned Advocate  for the  Respondents  that  having  regard  to  the   concurrent findings  of  the Courts below that the idol  was Nirakar’ (naked) that there were no Chakshus, no Mukat, no Armlet, no Dhwajadand  or  no  Kalash, would show  that  the  idol  was consecrated  by  the Digamberies.  It was also held  as  had already been noticed that though- it is not possible to  say when the Temple was constructed and the idol consecrated  it was an ancient Temple and that both the Digamberies and  the Swetamberies worship the idol.  It is not denied that  while the Digamberies will not worship an idol which has  Chakshus



or  which  has  clothes or  Mukat(  the  Swetamberies  would worship  a Digamberi idol without these and hence the  right to  worship a Digamberi idol by both the sects  is  possible and  indeed  has been so held by all the Courts.   Even  the Defendants’ witnesses substantiate these findings.  We would refer to only two of these witnesses.  Shri Suwa Lal D.W.  4 even  though he says that the Temple belonged to the  Oswals in which he and his father has been performing Sewa for  the last  30 or 35 years on behalf of the Oswals  (Swetamberies) admitted  that since he attained the age of  discretion  and upto the time of giving evidence he had never seen Adinathji wearing clothes, never saw the idol with eyes and had  never seen  Dhwajadand or Kalash on the Temple and does  not  know whether   the   idol   belongs  to   Oswals   or   Saravagis (Digamberies).   D.W. 3-Shri Pokhar a barber of Oswals  also supports this witness.  That the Digamberies had a right  to worship is also borne out by Ex. 1 dated 847 23-12-49 which was a compromise entered into between Swetam- beries  and  Digamberies at the time when  the  Swetamberies attempted to put Chakshus in the idol.  No doubt this was an interim  arrangement  till  the decision of  a  Civil  Court adjudicating the respective rights, but there was never  any question of either Sect not having the right to worship  the idol.    The   dispute  had  arisen  only  as   to   whether Swetamberies can fix Chakshus in the idol.  Exh. 1 states as follows:               "We Panchas give this award that a dispute had               arisen    between   the    Swetamberies    and               Digamberies  as  Swetamberies  recently  fixed               eyes  on the idol.  This new thing should  not               continue.   These  eyes  should  be   removed.               Digamberies have a right to perform Poojan  so               they can mark saffron Tiki’ and have  Darshan               and  come back.  Digambries will not  performs               Prakshal, Poojan.  Swetamberies will  continue               incurring  expenses as usual.  The idol  shall               remain backed (Nirakar)". The representatives of both Sects have signed this award, as a  temporary  measure  agreeable  to  both  the  Sects,  who indicated  that  they would press their rights  in  a  Civil Court.   Once  the right of worship of  the  Digamberies  is established there is little doubt that they are entitled  to the  injunction  sought for by them against  the  Defendants Appellants  from  preventing them from  worshiping  or  from interfering with that right by placing Chakshus in the idol, Dhwajadand, Kalash on the Temple.  In view of these findings the  further question that when once it has been found  that the Swetamberies have the right of management and possession of the Temple there is a presumption of ownership under Sec. 110  of the Evidence Act does not arise nor is it  relevant. It  is no doubt contended by the Respondents  Advocate  that when  consecration of an idol takes place the ownerships  of the  Temple is in the idol and therefore, the  question,  of presumption  under  Sec. 110 does not arise.   It  is  again contended  by Shri Desai that the moment it is held that  it is  not possible to, come to a conclusion as to  which  Sect the  idol belongs, as has been held by the Court below,  the Respondents  cannot be allowed to object to  the  Appellants worshipping  the  idol  according  to  their  tenets.   This contention,  however, in our view ignores the rights of  the Digamberies to worship in accordance with their tenets.   If the contention of the learned Advocate for the Appellants is accepted  it will be tantamount to holding that  Digamberies have no right to worship as there would denomination  change



in  the idol if the Swetamberies are held to have the  right to worship it according to their tenets by placing  Chakshus in  the idol or by erecting their Dhwajadand or Kalash  over the Temple. 848 Lastly  it  is urged that the High Court ought not  to  have entertained  the cross objection by extending the  time  for worship from 1 hour to 3 hours.  In our view the  directions of  the High Court are not unreasonable nor do they  in  any way  affect the right of the Respondents to worship  because the  directions clearly enable the Swetamberies who wish  to worship the deity within that period without disturbing  the Digamberies  to be at liberty to do so and likewise it  will be  open  to  Digamberies to go and worship  in  the  temple during  the  period it is kept open.  In view of  the  acute controversy  between these 2 sects and their  reluctance  to arrive at an amicable settlement the directions given by the High  Court are manifestly reasonable just and  proper.   In this view the appeal fails and is dismissed with costs. R.K.P.S.              Appeal dismissed. 849