[2025:RJ-JP:6764] HIGH COURT OF JUDICATURE FOR RAJASTHAN BENCH AT JAIPUR S.B. Civil Second Appeal No. 319/2024 Shri Radha Damodar Mandir, Mahamandir Road, Lal Pyaoo Ke Pas, Sikar, Tehsil And District Sikar Through Power Of Attorney Holder Brijmohan Sharma S/o Late Shri Pukhraj Sharma, Aged About 64 Years, Resident Of Gulabdas Baba Ki Bagichi, Ward No. 14, Sikar, Tehsil And District Sikar, (Rajasthan). ----Appellant/Plaintiff Versus 1. Sub Divisional Magistrate, Sikar. 2. Nagar Parishad, Sikar Through Commissioner, Nagar Parishad, Sikar. 3. Sub-Registrar, Sikar. 4. Kailash Chandra Tiwari S/o Late Shri Suwalal Tiwari, Resident Of Sheetla Ka Bas, Ward No. 14, Sikar. 5. Shankar Lal Soni S/o Late Shri Kajodmal Soni, Resident Of Ward No. 14, Near Gulab Das Baba Ki Bagichi, Sikar. 6. Mohar Singh Gaur S/o Shri Udaram Gaur, Resident Of Near Tagore School Radhakishanpura, Ward No. 29, Sikar. ----Respondents/Defendants For Appellant(s) : Mr. Jai Kishan Yogi HON'BLE MR. JUSTICE ASHOK KUMAR JAIN Judgment 30/01/2025 1. The instant civil second appeal is preferred by appellant- plaintiff aggrieved from dismissal of civil regular appeal No.18/2018 by learned Additional District Judge No.1, Sikar on 18.05.2024 affirming the judgment and decree of dismissal of civil suit No.40/2008 (54/2007) on 23.03.2018 by learned Additional Civil Judge (J.D.) No.2, Sikar. [2025:RJ-JP:6764] (2 of 8) [CSA-319/2024] 2. Learned counsel for the appellant submits that aggrieved from unauthorized interference and obstruction in affairs of temple, a suit for permanent injunction was filed by the plaintiff. He further submits that the temple property was attached and possession was handed over to Tehsildar under the orders of SDO. He also referred the record and submitted that there were valuable items like ornaments of God and same were also seized. He further submitted that the attachment was illegally withdrawn and with connivance of authorities, other persons were handed over the possession of temple property. He also submitted that defendant Nos.4, 5 and 6 have illegally encroached and raised construction which resulted into filing of the instant suit. He further referred the judgment of trial Court and submitted that 83 documents were exhibited and 3 oral evidence were examined by the plaintiff but despite availability of sufficient material, learned trial Court has dismissed the civil suit filed by plaintiff. 3. He further referred to the judgment of the Appellate Court and submitted that the Appellate Court has not considered the grounds of appeal independently and had merely relied on the opinion expressed by the Trial Court. At last, he submitted that the plaintiff has a good case, whereas respondent Nos.4 to 6 are politically affluent persons who misused the public authorities to deprive plaintiff from ventilating his grievance. He further submitted that few substantial questions of law are suggested in para-(H) of memo of appeal for admission. 4. Heard learned counsel for the appellant-plaintiff and perused the entire material placed on record. [2025:RJ-JP:6764] (3 of 8) [CSA-319/2024] 5. Brief facts giving rise to the instant second appeal are that the appellant-plaintiff, as power of attorney holder of a temple filed a civil suit No.40/2008 (54/2007) for seeking injunction. The plaintiff has averred that the temple in question was managed by his forefathers and after death of Ved Damodar Prasad, his uncle Ram Chandra was managing the affairs of temple but after dispute due to mismanagement, he resigned as manager and father of plaintiff was appointed as manager on 17.06.1987. As per plaint, the temple was attached on 05.02.1989 and at the time of attachment, a list of valuables and non-valuable items were prepared and later the temple was handed over to Tehsildar, Sikar. As per plaintiff, a petition under Section 145 of CrPC was filed wherein the plaintiff has filed objection but against all norms the attachment was withdrawn on 25.05.2006 and property was handed over to unauthorised miscreant persons. A criminal revision was filed in the name of Brij Mohan Vs. SDO, Sikar which was pending on the date of filing of suit. The parties were directed to maintain status-quo. A specific allegation was made against a political leader for influencing the system. The plaintiff on the basis of facts narrated in plaint has claimed permanent injunction against the defendants. Defendant Nos.2, 4, 5 and 6 have filed separate written statement denying the fact narrated by plaintiff. 6. On basis of pleadings of the parties, six issued framed. Three witnesses were examined by the plaintiff, and 83 documents were exhibited. Defendants have examined one witness DW-1. Learned trial Court while considering issue Nos.1 and 2 collectively has decided the same against the plaintiff. Issue No.2 was also [2025:RJ-JP:6764] (4 of 8) [CSA-319/2024] decided against the plaintiff whereas issue No.3 was decided against the defendant No.2 and issue No.5 against the defendants. The trial Court has observed that the plaintiff has no locus to file a civil suit, for the subject matter claiming by him. 7. Aggrieved from dismissal of civil suit, the plaintiff has filed an appeal under Section 96 of CPC and the Appellate Court after considering submissions of all parties has dismissed the first appeal. Now the instant second appeal is preferred by appellant - plaintiff. Thus, there is concurrent findings of acts recorded by both the courts below. 8. A perusal of facts narrated by plaintiff clearly indicates that Shri Radha Damodar Mandir was having both movable and immovable property. An idol is perpetual minor and for protection of property of minor, any person can file a civil suit but the framing of suit must be proper and in accordance with law. Herein, the facts narrated by plaintiff clearly shows that neither he was a Manager nor a Trustee. The plaintiff has filed a suit on the basis of power of attorney. The facts also indicated that on date of filing of suit, a criminal revision petition No.8/2006 was pending before learned Sessions Judge, Sikar which was filed aggrieved from order dated 25.05.2006 while de-attaching the property of temple. The claim of plaintiff was further repudiated by respondent No.2 Municipal Council. The facts in written statement of respondent No.2 indicated that a temple is a Trust. In case of a Trust, there is another provision to seek relief about mismanagement of temple. Similarly, if there is any mismanagement or illegal disposal of property by authorized or unauthorized persons then also a matter [2025:RJ-JP:6764] (5 of 8) [CSA-319/2024] can be filed before the Assistant Commissioner, Devasthan under the law. A simple suit of injunction wherein the plaintiff was not in possession cannot be filed. This suit is not filed as a suit based on public interest. Rather the suit is filed for personal interest as power of attorney holder. 9. Having considered the fact that temple is a Trust and a Trust property cannot be divested except a procedure as prescribed under the law. Similarly, property vested in deity, who is a perpetual minor, cannot be transferred or alienated in any manner. 10. Herein, after going through the judgments passed by the trial Court and the First Appellate Court, I am of considered view that the framing of suit was itself defective and the plaintiff was having no locus to file a suit as power of attorney holder. The plaintiff can take appropriate steps as per law before appropriate forum but he cannot file a suit for permanent injunction like present one when he is not In-charge of affairs of temple. Therefore, both the Courts below have not committed any error while not allowing the suit of plaintiff. 11. A second appeal can be entertained only if grounds give rise to substantial question of law but not otherwise. Herein the grounds do not give rise to any of substantial questions of law, as there is no perversity or illegality in the judgments passed by the Courts below. The judgments of the Courts below is based on material on record. Therefore, there is no ground of misread or non-read of any material while drawing a conclusion. 12. Section 100 of CPC provides for second appeal in case wherein the High Court is satisfied that the case involves a [2025:RJ-JP:6764] (6 of 8) [CSA-319/2024] substantial question of law. Thus, the First Appellate Court is final court on facts and in second appeal normally cannot re-appreciate the evidence or facts. 13. Just to determine whether a question is substantial question of law or not, was laid down by a Constitution Bench of Hon’ble Supreme Court in case of Chunilal V. Mehta & Sons. Ltd. Vs. Century Spg. and Mgf. Co. Ltd. AIR 1962 SC 1314, as under: "The proper test for determining whether a question of law raised in the case is substantial would, in our opinion, be whether it is of general public importance or whether it directly and substantially affects the rights of the parties and if so whether it is either an open question in the sense that it is not finally settled by this Court or by the Privy Council or by the Federal Court or is not free from difficulty or calls for discussion of alternative views. If the question is settled by the highest court or the general principles to be applied in determining the question are well settled and there is a mere question of applying those principles or that the plea raised is palpably absurd the question would not be a substantial question of law." 14. Recently Hon’ble Supreme Court in case of Suresh Lataruji Ramteke versus Sau. Sumabai Pandurang Petkar & Ors. (Civil Appeal No. 6070/2023, arising out of SLP(C)No.20183 of 2022 decided on 21.09.2023) considered the scope of Section 100 of CPC and summarised the law as under: 13. The jurisprudence on Section 100, CPC is rich and varied. Time and again this Court in numerous judgments has laid down, distilled and further clarified the requirements that must necessarily be met in order for a Second Appeal as laid down therein, to be maintainable, and thereafter be adjudicated upon. Considering the fact that numerous cases are filed before this Court which hinge on the application of this provision, we find it necessary to reiterate the principles. 13.1 The requirement, most fundamental under this section is the presence and framing of a “substantial question of law”. In other words, the existence of such a question is sine qua non for exercise of this jurisdiction. [2025:RJ-JP:6764] (7 of 8) [CSA-319/2024] 13.2 The jurisdiction under this section has been described by this Court in Gurdev Kaur v. Kaki (2007) 1 SCC 546 (Two-Judge Bench) stating that post 1976 amendment, the scope of Section 100 CPC stands drastically curtailed and narrowed down to be restrictive in nature. The High Court’s jurisdiction of interfering under Section 100 CPC is only in a case where substantial questions of law are involved, also clearly formulated/set out in the memorandum of appeal. It has been observed that: “At the time of admission of the second appeal, it is the bounden duty and obligation of the High Court to formulate substantial questions of law and then only the High Court is permitted to proceed with the case to decide those questions of law. The language used in the amended section specifically incorporates the words as “substantial question of law” which is indicative of the legislative intention. It must be clearly understood that the legislative intention was very clear that legislature never wanted second appeal to become “third trial on facts” or “one more dice in the gamble”. The effect of the amendment mainly, according to the amended section, was: (i) The High Court would be justified in admitting the second appeal only when a substantial question of law is involved; (ii) The substantial question of law to precisely state such question; (iii) A duty has been cast on the High Court to formulate substantial question of law before hearing the appeal; (iv) Another part of the section is that the appeal shall be heard only on that question.” Gurdev Kaur (supra) was referred to and relied upon in Randhir Kaur v. Prithvi Pal Singh & Ors. (2019) 17 SCC 71 13.3 In Santosh Hazari v. Purushottam Tiwari (2001) 3 SCC 179 a Bench of three Judges, held as under in regard to what constitutes a substantial question of law:- a) Not previously settled by law of land or a binding precedent. b) Material bearing on the decision of case; and (c) New point raised for the first time before the High Court is not a question involved in the case unless it goes to the root of the matter. Therefore, it will depend on facts of each case. Such principles stand followed in Government of Kerala v. Joseph 2023 SCC Online SC 961 and Chandrabhan v. Saraswati 2022 SCC Online SC 1273. 16.5 Interference on findings of fact permitted in exceptional cases, i.e., when finding is based on either inadmissible or, no evidence. This Court in Dinesh Kumar v. Yusuf Ali (2010) 12 SCC 740 referring to various other cases held:- a) It is not permissible for High Court to reappreciate evidence [2025:RJ-JP:6764] (8 of 8) [CSA-319/2024] as if it was the first appellate court unless findings were perverse. b) Finding of fact can be interfered in exceptional circumstances as rarity, rather than a regularity. c) Scrutiny of evidence in second appeal is not prohibited but has to be exercised upon proper circumspection. 15. In case of Amar Singh Vs. Dalip Singh (2012) 13 SCC 405, Hon’ble Supreme Court explained the purpose of framing question of law in following manner: “a) The purpose of framing of substantial question of law is to give the parties an opportunity to come prepared on that particular question. b) When a substantial question of law is formulated by the Court then the same must be made known to parties and thereafter they have to be given an opportunity to advanced arguments thereon. c) If any additional questions were framed at the time of hearing, the Court must hear the parties on that question as well.” 16. Hon’ble Court in case of Chandrabhan Vs. Saraswati 2022 SCC Online (SC) 1273 (decided on 22.09.2022) has summarised principle relating to Section 100 of CPC in following words:- “(i) the courts below have ignored material evidence or acted on no evidence; (ii) the courts have drawn wrong inferences from proved facts by applying the law erroneously; or (iii) the courts have wrongly cast the burden of proof.” 17. In view of aforesaid, the instant civil second appeal is hereby dismissed with pending application(s), if any. (ASHOK KUMAR JAIN),J MR/9