1. The present appeal has been filed by the appellant laying challenge to judgment dated 28.4.1990 passed by learned Additional District Judge,
Nagaur whereby the suit registered as Civil Original Suit No.43/86 filed by him has been dismissed.
2. The facts relevant and necessary for adjudication of the present appeal are that the appellant - plaintiff had filed a suit for declaration and
permanent injunction inter alia contending that the ''Dargah'' known as Hazrat Sufi Hamiduddin Tarkkin Sultan is a wakf property, in which an
annual festival known as ''Urs'' is celebrated. The affairs of the said ''Urs'' were managed by Rajasthan Wakf Board and during which, a customary
ceremony was being solemnized, according to which, the plaintiff and his side one the one hand and the defendant and his side on the other hand
jointly used to solemnize a ritual, in which the defendant brought ''Sandal Bowl'' ""VERNACULAR MATTER OMITTED"" for handing it over to
the plaintiff, who would offer the same to the ''Majaar''. The plaintiff''s assertion in the plaint was that such customs was being observed for past
many years, before some dispute arose in the year 1945, which dispute came to be resolved by way of arbitration. It had ben alleged that during
arbitration between both the groups, it was decided that the defendant group would bring ''Sandal Bowl'' ""VERNACULAR MATTER
OMITTED"" and request the plaintiff to offer the same to the Seat ''Majaar''; at such request the plaintiff would offer the ''Sandal Bowl'' to the
''Majar''.
3. Plaintiff''s case has been that despite the long drawn tradition, defendant objected to the same on 21.3.1985 and during the ''Urs'', his group did
not permit the plaintiff to offer the ''Sandal Bowl'' ""VERNACULAR MATTER OMITTED"" and again on 10.1.1986, they restrained the plaintiff to
offer ''Sandal Bowl'' ""VERNACULAR MATTER OMITTED"" and instead insisted upon offering the same by themselves. Faced with such
situation, the plaintiff filed a suit for mandatory and permanent injunction with the following prayers :-
VERNACULAR MATTER OMITTED
4. The defendant opposed the suit and disputed the tradition as stated by the plaintiff and contended that the defendant after becoming ''Sajjada
Nashin'' in the year 1978, has been bringing the ''Sandal Bowl'' ""VERNACULAR MATTER OMITTED"" with the congregation and offering the
same to the Seat (Majaar) by himself.
5. The defendant not only refuted the right of the plaintiff but objected to very maintainability of the suit for enforcement of alleged customary or
religious rite. The defendant also disputed the factum of the award or agreement dated 09.04.1945 pursuant to the arbitration proceedings. The
defendant had taken an additional plea that even if, it is presumed that such custom does exist, such customary right cannot be enforced by courts,
more particularly because such customs had not been observed for last two years, as stated by the plaintiff himself.
6. On the basis of the pleadings of the parties, the trial Court framed following issues on 26.8.1988 :-
VERNACULAR MATTER OMITTED
7. As the issue No.4 was a question of law, requiring no evidence, the trial Court decided it as a preliminary issue and dismissed the suit, while
observing that by way of the present suit, the plaintiff simply wants to satisfy his ego. It has also been held that the cause of action, projected in the
suit is neither congnizable by the Civil Court nor has the Civil Court got jurisdiction to grant the desired relief, as the rights claimed in the suit relate
to religious ceremony, which do not constitute any civil right.
8. Being aggrieved with the aforesaid judgment dated 28.4.1990, the appellant has preferred the present appeal.
9. Learned counsel for the appellant Mr. Akshay Nagori at the outset submitted that the learned Court below has seriously erred in holding that the
suit filed by the plaintiff is not maintainable. He submitted that the maintainability of the suit is governed by the provisions encapsulated under
Section 9 of the Code of Civil Procedure, which confers vast power upon the court to try the present suit. He submitted that a bare reading of
such provision shows that a Civil Court has jurisdiction to try all suits, except in which the cognizance is either expressly or impliedly barred. He
argued that no law prohibits filing of the suit like the one at hand and the learned Court below has failed to understand the nature and scope of
Section 9 of the Code. He added that the learned Court below has misread the frame of the suit and the relief prayed for. He pointed out that the
plaintiff had sought a mandatory injunction and prayed that the defendant be restrained from offering ''Sandal Bowl'' (panu dk I;kyk) to the
''Majaar'' by himself, while seeking a declaration that the right to offer the ''Sandal Bowl'' vests in the plaintiff, in view of the custom and long drawn
tradition duly recognised and pronounced vide arbitration award dated 7.4.1945.
10. Mr. Nagori submitted that the learned Court below has completely misread the explanation appended with Section 9 of the Code to non-suit
the plaintiff on the preliminary issue and that the learned Court below has manifestly erred in deciding the preliminary issue in favor of the defendant
and rejecting the suit filed by him. He urged that the right to offer the ''Sandal Bowl'' ""VERNACULAR MATTER OMITTED"" was a culmination
of religious rite or ceremony, and the plaintiff was entitled to perform the same on the basis of the tradition and the arbitration award dated
7.4.1945, owing to his position of ''Sajjada Nashin''.
11. Mr. Rishabh Shrimali, learned counsel appearing for the respondent defendant on the other hand, submitted that learned trial Court has
committed no error in rejecting the suit as not maintainable. While maintaining the stand taken by the defendant that no such tradition as claimed by
the appellant ever existed, he argued that the relief as prayed does not flow from any legal or statutory right, for which the suit can be filed and
maintained. He submitted that the suggestion of the plaintiff is preposterous and the plaintiff cannot compel the defendant to bring ''Sandal Bowl''
(panu dk ""VERNACULAR MATTER OMITTED"") and then to utter the words (""VERNACULAR MATTER OMITTED""a panu dk
VERNACULAR MATTER OMITTED"").
12. Learned counsel for the respondent submitted that bringing of ''Sandal Bowl'' and then utterance of the words ""VERNACULAR MATTER
OMITTED""a panu ""VERNACULAR MATTER OMITTED"" is only a way or manner of performing the ceremony, for which the defendant
cannot be compelled. He emphasized that the defendant himself is a ''Sajjada Nashin'' and has the right to offer the ''Sandal Bowl'' to ''Majaar''. He
emphasised that tradition or customary rights cannot be enforced by Courts of law and for such rights, no injunction or decree can be issued.
13. Before attempting to answer the question involved in the present case, it would be appropriate to first sail through the provisions of Section 9
of the Code of Civil Procedure, which reads thus :-
9. Courts to try all civil suits unless barred .- The Courts shall (subject to the provisions herein contained) have jurisdiction to try all Suits of a civil
nature excepting suits of which their cognizance is either expressly or impliedly barred.
Explanation 1.-A suit in which the right to property or to an office is contested is a suit of a civil nature, notwithstanding that such right may depend
entirely on the decision of questions as to religious rites or ceremonies.
Explanation I-For the purposes of this section, it is immaterial whether or not any fees are attached to the office referred to in Explanation I or
whether or not such office is attached to a particular place.
14. A bare reading of the aforesaid provision reveals that in order to ascertain as to whether a civil Court has jurisdiction to try a suit, the first
question, which needs to be determined by the Court is, as to whether the suit is of civil nature. Normally, suits can be bifurcated in two categories;
viz. first the suits which are of civil nature; and the suits which are not of civil nature. The suits falling under the former category can be tried and
decided by all civil Courts, unless expressly barred; whereas the suits falling under the latter category cannot be tried by the civil Courts.
15. The moot question which arises for the Court''s consideration is, which are the suits of civil nature ? The word ""civil"" has not been defined in
the Code of Civil Procedure, however the dictionaries define it as ""pertaining to private rights and individual remedies of a citizen as distinguished
from criminal or political matters"". The expression ""civil nature"" means the rights vested in the citizen falling within the domain of private law and not
of public law.
16. The above observations have been borrowed from the judgment of Hon''ble Supreme Court, reported in 1995 Suppl.4 SCC 286 and (1993)
3 SCC 161. A survey of said judgment and various other judgments of Hon''ble Supreme Court reveals that suit in which principal question
revolves around the caste or religion, such suit is not a suit of civil nature. However, if the principal question in the suit is, of civil nature and the
adjudication of such suit as an incidental issue, involves the determination relating to caste or religion; rites and ceremonies; such suit does not
cease to continue as a suit of a civil nature and the jurisdiction of the civil Court is not ousted.
17. This is what, is discernible from a careful reading of Explanation-I of Section 9 of the Code. Explanation-II of Section 9 inserted in the Code,
vide Amendment Act of 1976 has expanded the scope of Section 9 of the Code as it specifically provides that suit, relating to religious office is
maintainable, whether or not it carries any fees or it is attached to a particular place.
18. Explaining the nature and scope of civil Court under Section 9 of the Code, Hon''ble the Supreme Court in the case of P.M. Metropolitan Vs.
MM Merthona, reported in 1995 Suppl. 4 SCC 286 has held that ""the expansive nature of the Section is demonstrated by use of phraseology
both positive and negative. The earlier part opens the door widely and latter debars entry to only those which are expressly or impliedly barred.
The two Explanations, one existing from inception and latter added in 1976, bring out clearly the legislative intention of extending operation of the
Section to religious matters, whether right to property or office is involved irrespective of whether any fee is attached to the Office or not.
19. It will not be out of context to reproduce relevant excerpts from the judgment reported in (1995) Supp.4 SCC 286 :-
28. One of the basic principles of law is that every right has a remedy. Ubi jus ibi remediem is the well known maxim. Every civil suit is cognisable
unless it is barred, ''there is an inherent right in every person to bring a suit of a civil natu re and unless the suit is barred by statute one may, at
one''s peril, bring a suit of one''s choice. It is no answer to a suit, howsoever frivolous the claim, that the law confers no such right to sue'' Smt.
Ganga Bai vs. Vijay Kumar & Ors., AIR 1974 SC 1126 . The expansive nature of the Section is demonstrated by use of phraseology both
positive and negative. The earlier part opens the door widely and latter debars entry to only those which are expressly or impliedly barred. The
two explanations, one existing from inception and latter added in 1976 bring out clearly the legislative intention of extending operation of the
Section to such religious matters where right to property or office is involved irrespective of whether any fee is attached to the office or not. The
language used is simple but explicit and clear. It is structured on the basic principle of a civilised jurisprudence that absence of machinery for
enforcement of right renders it nugatory. The heading which is normally key to the Section brings out unequivocally that all civil suits are cognizable
unless barred. What is meant by it is explained further by widening the ambit of the Section by use of the word ""VERNACULAR MATTER
OMITTED""shall'' and the expression, ''all suits of a civil nature'' unless ''expressly of impliedly barred''.
29. Each word and expression casts an obligation on the court to exercise jurisdiction for enforcement of right. The word ''shall'' makes it
mandatory. No court can refuse to entertain a suit if it is of description mentioned in the Section. That is amplified by use of ''expression, ''all suits
of civil nature''. The word ''civil'' according to dictionary means, ''relating to the citizen as an individual; civil rights''. In Black''s Legal Dictionary it is
defined as, ''relating to provide rights and remedies sought by civil actions as contrasted with criminal proceedings''. In law it is understood as an
antonym of criminal. Historically the two broad classifications were civil and criminal. Revenue, tax and company etc, were added to it later. But
they too pertain to the larger family of ''civil''. There is thus no doubt about the width of the word ''civil''. Its width has been stretched further by
using the word ''nature'' along with it. That is even those suits are cognisable which are not only civil but are even of civil nature. In Article 133 of
the Constitution an appeal lies to this Court against any judgment, decree or order in a ''civil proceeding''. This expression came up for construction
in S.A.L. Narayan Row & Anr. etc. etc. v. Ishwarlal Bhagwandas & Anr. The Constitution Bench held ''a proceedings for relief against
infringement of civil right of a person is a civil proceedings''. In Arbind Kumar Singh v. Nand Kishore Prasad & Anr. it was held ''to extend to all
proceedings which directly affect civil rights''. The dictionary meaning of the word ''proceedings'' is ''the institution of a legal action, ''any step taken
in a legal action.'' In Black''s Law Dictionary it is explained as,
In a general sense, the form and manner of conducting juridical business before a court or judicial officer. Regular and orderly progress in form of
law, including all possible steps in an action from its commencement to the execution of judgment. Term also refers to administrative proceedings
before agencies, tribunals, bureaus, or the like.
The word ''nature'' has been defined as, ''the fundamental qualities of a person or thing; identity or essential character; sort; kind; character''. It is
thus wider in content. The word ''civil nature'' is wider than the word ''civil proceeding''. The Section would, therefore, be available in every case
where the dispute has the characteristic of affecting one''s rights which are not only civil but of civil nature.
33. On the plain phraseology of the Section, therefore, it is clear that a suit filed after coming into force of the Constitution for vindication of rights
related to worship of status, office or property is maintainable in civil court and it would be duty of the court to decide even purely religious
questions if they have a material bearing on the right alleged in the plaint regarding worship, status or office or property. In Nafar Chandra
Chatterjee & Anr. v. Kailash Chandra Mondal & Ors. it was held:
Where there were no Ecclesiastical Courts, there was nothing to prevent civil courts from holding that Pujari has been removed from his office on
valid grounds.
Sir Ashutosh Mookerjee quoted thus:
There is manifestly nothing wrong in principle that the holder of a spiritual office should be subject to discipline and should be liable to deprivation
for what may be called misconduct from an ecclesiastical point of view or for flagrant and continued neglect of duty..... It is plain that although so
far as Hindus are concerned, there is now no State Church and no ecclesiastical court, there is nothing to prevent civil courts from determining
questions such as those raised in the present litigation and from holding that the Pujari has been removed from his office on valid grounds.
38. ""Religion is the belief which binds spiritual nature of men to super-natural being''. It includes worship, belief, faith, devotion etc. and extends to
rituals. Religious right is the right of a person believing in a particular faith to practice it, preach it and profess it. It is civil in nature. The dispute
about the religious office is a civil dispute as it involves disputes relating to rights which may be religious in nature but are civil in consequence. Civil
wrong is explained by Salmond as a private wrong. He has extracted Blackstone who has described private wrongs as, ''infringement or privation
of the private or civil rights belonging to individuals, considered as individuals, and are thereupon frequently termed civil injuries''. Any infringement
with a right as a member of any religious order is violative of civil wrong. This is the letter and spirit of Explanation I to Section 9. In American
Jurisprudence volume Vol.66, para 45, the law is explained thus:
''The (the) civil courts have steadily asserted their want of jurisdiction to hear and determine any controversy relating thereto. On the other hand,
the civil courts have without hesitation exercised their jurisdiction to protect the temporalities of such bodies, for whenever rights of property are
invaded, the law must interpose equally in those instances where the dispute is as to church property and in those where it is not''.
43. In reading Section 9 widely and construing it expansively the jurisdiction to entertain a suit for declaration whether the Church was episcopal or
congregational and whether the appellants could have been ordained by the Patriarch when it was contrary to the earlier decision given by this
Court that the ordination was required to be approved by Synod, the court is not being asked to adjudicate on faith but whether the exercise of
right in respect of faith was valid. The Grace no doubt comes from Patriarch and on that there is no dispute but whether the Grace came in
accordance with the Canon or the Constitution is certainly a matter which would fall within Section 9 C.P.C. Status and office are no doubt
different but what was challenged is not the status or faith in Patriarch but the exercise of right by Patriarch which interfered with the Office of
Cathelico held validly. Apart from it, as stated earlier, after coming into force of the Constitution, Article 25 guarantees a fundamental right to every
citizen of his conscience, faith and belief, irrespective of cast, creed and sex, the infringement of which is enforceable in a court of law and such
court can be none else except the civil courts. It would be travesty of justice to say that the fundamental right guaranteed by the constitution is
incapable of enforcement as there is no court which can take cognizance of it. There is yet another aspect of the matters that Section 9 debars only
those suits which are expressly or impliedly barred. No such statutory bar could be pointed out. Therefore, the objection that the suit under
Section 9 C.P.C. was not maintainable cannot be accepted.
20. Another leading judgment on the issue is AIR 1961 SC 1720, heavily relied upon by Mr. Nagori, learned counsel for the appellant. A careful
reading of the judgment, including para No.9 thereof reveals that Hon''ble Supreme Court after considering hordes of judgments on the point,
observed that Section 9 of the Code of Civil Procedure describes the nature of suit, which a civil Court has jurisdiction to entertain and try. It can
entertain every suit of a civil nature excepting suits of which its cognizance is either expressly or impliedly barred.
21. As a natural corollary to this, it percolates that a court cannot try a suit which is not of a civil nature. Prima facie, suits raising questions of
religious rites and ceremonies are not maintainable in a civil Court, as they do not deal with legal rights of parties, but the Explanation to the
Section, acknowledging such legal position, provides that a suit in which the civil rights or right to property or an office are contested, is a suit of
civil nature; irrespective of the fact that such right may accrue or is based on adjudication of religious rites or ceremonies.
22. The Supreme Court has also observed in the said judgment that honours shown or precedence given to religious dignitaries, while attending
religious ceremonies in a temple cannot be placed on a higher pedestal than the religious rites or ceremonies, as they are integral part of such rites
or ceremonies. Prima facie honours, such as who is to stand in the ''ghoshti'', in what place; who is to get the tulasi; etc., in what order; and all
other like questions cannot be considered to be a part of the remuneration or perquisites attached to an office, for they are only tokens of welcome
of an honoured guest within the precincts of a temple.
23. In case of Nar Hari Sastri & Ors., Vs. Shri Badrinath Temple Committee, AIR 1952 SC 245, Hon''ble Supreme Court has given recognition
to right of entering the temple and worship, wherein the question involved was about the right of entry into public temple for the purpose of
facilitating worship or darshan. The basic question involved therein was whether pandas to Badrinath temple can enter the temple with their
Yajmaan and accept gifts etc. from them. Hon''ble Supreme Court held that such a suit was cognizable, holding the plaintiff''s right to enter the
temple to be a civil right.
24. Learned counsel for the respondent has challenged the maintainability of the suit and the present appeal on the ground that the court should not
interfere in the conduct and enforcement of the rituals/customs/traditions of the religion as the same is beyond its jurisdiction and that such relief as
prayed by the appellant cannot be granted. The Appellant, per contra, seeks to obtain support from Explanation I & II to Section 9 to contend
that the relief sought by him is towards claiming a right of civil nature viz. Right to Worship and that not granting the relief sought would seriously
impair such right, hence the suit is maintainable. Before dealing with the arguments of the learned counsels for the parties, it would be profitable to
comb through the provisions contained in Section 9 of the Code of Civil Procedure.
25. A conjoint reading of the explanations evinces that a right which depends entirely on the decision of questions as to religious rites or
ceremonies can be claimed by way of suit but only where a right to property or to an office is contested. However, it is a settled position of law
that the right to worship is a right of civil nature which can be claimed by way of a suit. The said position is also bespoken by the judgments as
advanced by the learned counsel for the appellant. The appellant relied upon various judgments, namely Babu Puri and Ors vs Kalu and Ors
reported in AIR 2005 Raj 77, Dayalal and Ors vs Pyar Chand and Ors reported in AIR 1972 Raj 149 and Gulam Abbas and Ors vs Iqbal and
Ors reported in 1984 RLR 888 in support of his contention that Right to Worship, which also includes offering congressional prayers and
performing ceremonies is a civil right which can be claimed by way of suit. He also relied on the judgment of Hon''ble the Supreme Court rendered
in Sri Sinna Ramanuja Jeer and Ors. vs. Sri Ranga Ramanuja Jeer and Anr. reported in AIR 1961 SC 1720 to contend that suit for declaration of
religious honours or privileges in temples is maintainable. Lastly, the counsel relied on the judgment of Ganga Bai vs Vijay Kumar and Ors reported
in AIR 1974 SCC 1126 to contend that there is an inherent right in every person to bring a suit of civil nature and unless the suit is barred by
statute , one may, at one''s peril, bring a suit of one''s choice.
26. Counsel for the respondent relied upon the judgment of Madras High Court rendered in Periyanan Servai and Ors vs Mahadevan Ambalam
and Ors reported in AIR 1935 Madras 679, Thatachariar and Ors vs Srinivasa Raghava Iyengar and Ors reported in AIR 1938 Madras 334 and
in Chitti Babu Mudaliar vs A. Venkatasubbu Mudaliar and Ors reported in AIR 1933 Madras 264 to contend that though a suit would lie to
enforce the Right to Worship, a suit to enforce mere honours, privileges or precedence, independent of any office cannot be maintained.
27. The arguments advanced by the counsels for the parties dilate upon only superficial and upper part of the otherwise deep controversy. Right to
worship, as held in the judgment of Hon''ble the Supreme Court in Commissioner of Police and Ors. vs. Acharya Jagadishwarananda Avadhuta
and Anr. reported in (2004) 12 SCC 770 is per se, a part of the Right to Religion under Article 25 of the Constitution. Also, the scope of enquiry
for the courts, for the Right to Worship as part of the Right to Religion is limited to interfering/enforcing only those parts of the religion which form
an ''essential'' part/practice thereof. The relevant excerpts of the said judgment is reproduced below:-
The expression of ''RELIGION'' has not been defined in the Constitution and it is incapable of specific and precise definition. Article 25 of the
Constitution of India guarantees to every person, freedom of conscience and right freely to profess, practice and propagate religion. No doubt, this
right is subject to public order related to health and morality and"" other provisions relating to Fundamental Right Religion includes worship, faith
and extends to even rituals. Belief in religion is belief of practice a particular faith, to preach and to profess it. Mode of worship is integral part of
religion. Forms and observances of religion may extend to matters of Food and Dress. An act done in furtherance to religion is protected. A
person believing in a particular religion has to express his belief in such acts which he thinks proper and to propagate his religion. It is settled law
that protection under Articles 25 and 26 of the Constitution of India extend guarantee for rituals and rituals and observances, ceremonies and
modes of worship which form part and parcel of religion. Practice becomes part of religion only if such practice is found to be essential and integral
part, it is only those practices which are integral part of religion that are protected....
28. However, what is supposed to form an ''essential'' part of the religion and what is the applicable test to determine whether a particular religious
practice is essential or not has been further edified and elucidated in the Acharya Jagadishwarananda Avadhuta judgment (Supra).
....What would constitute an essential part of religion or religious practice is to be determined with reference to the Doctrine of a particular religion
which includes practices which are regarded by the Community as part and parcel of that religion. Test has to be applied by Courts whether a
particular religious practice is regarded by the community practicing that particular practice is integral part of the religion or not It is also necessary
to decide whether the particular practice is religious in character or not and whether the same can be regarded as an integral or essential part of
religion which has to be decided based on evidence.
29. The Hon''ble Court has also elaborated on this test as under:-]
Essential part of a religion means the core beliefs upon which a religion is founded. Essential practice means those practices that are fundamental
to follow a religious belief. It is upon the cornerstone of essential parts or practices the superstructure of religion is built. Without which, a religion
will be no religion. Test to determine whether a part or practice is essential to the religion is - to find out whether the nature of religion will be
changed without that part or practice. If the taking away of that part or practice could result in a fundamental change in the character of that religion
or in its belief, then such part could be treated as an essential or integral part. There cannot be additions or subtractions to such part. Because it is
the very essence of that religion and alterations will change its fundamental character. It is such permanent essential parts is what is protected by the
Constitution. No body can say that essential part or practice of one''s religion has changed from a particular date or by an event. Such alterable
parts or practices are definitely not the ''core'' of religion where the belief is based and religion is founded upon. It could only be treated as mere
embellishments to the non-essential part or practices.
30. The question whether a suit for enforcement of certain religious rites or ceremonies is maintainable or not can only be decided once it is
ascertained whether the said rites and ceremonies form an ''essential'' part of the religion or not. The answer to that question has to be arrived at on
the basis of evidence adduced as to and with reference to the doctrines, practices, tenets, historical background etc. of the given religion, which is
why Hon''ble the Supreme Court, in Sri Adi Visheshwara of Kashi Vishwanath Temple, Varanasi and Ors. vs. State of U.P. and Ors. reported in
(1997 ) 4 SCC 606, held thus:-
All secular activities which may be associated with religion but which do not relate or constitute an essential part of it may be amenable to State
regulations but what constitutes the essential part of religion may be ascertained primarily from the doctrines of that religion itself according to its
tenets, historical background and change in evolved process etc. The concept of essentiality is not itself a determinative factor. It is one of the
circumstances to be considered in adjudging whether the particular matters of religion or religious practices or belief are an integral part of the
religion, it must be decided whether the practices or matters are considered integral by the community itself. Though not conclusive, this is also one
of the facets to be noticed. The practice in question is religious in character and whether it could be regarded as an integral and essential part of the
religion and if the court finds upon evidence adduced before it that it is an integral or essential part of the religion, Article 25 accords protection to
it.
31. In view of the above referred judgment of Hon''ble Supreme Court, it is clear that a suit for enforcement of right to worship or mode of
worship is maintainable, if the party claiming such right is able to prove that such right of worship or manner of worship is an essential part of the
religion. In the present case, the plaintiff and defendants have rested their case with respect to the maintainability of the suit, claiming their rights
based on certain rites and ceremonies. They have however failed to address the more crucial and pertinent question as to whether such right is the
essential part of the religion or not. It is true that the plaintiff has pleaded that offering of Sandal Bowl by him is a practice being observed for a
sufficiently long time, but the Court has not given any finding as to whether offering of Sandal Bowl is an essential part of the worship, based on
practices, tenets and historical background.
32. According to this Court, Explanations I and II stringed to Section 9 of the Code are inclusive; and they ""expand its expanse, rather than limiting
its limits"". Wading through the judgments referred hereinabove, this Court finds that the Courts have held that right to worship is a civil right and the
same can be enforced. However, the right to claim priority or honour has been held not to be a civil right, capable of being claimed by way of a
suit. There is a subtle difference between the right to worship and manner of worship vis a vis right of precedence in worship. Right to worship and
getting honours or offerings etc. is a civil right whereas prior right to worship is not. In considered opinion of this Court, priority or precedence of
worship should be left to be decided by the Society based on customs or established practice.
33. If the offering of the Sandal Bowl is an essential part of worship, then crops up the other question as to whether the plaintiff has the sole right to
offer the Sandal Bowl or right of precedence to offer the same. The trial Court has not examined the said question and has dismissed the suit
simply on the basis of decision of issue No.4, which has been decided as a preliminary issue. The trial Court was required to examine the nature
and character of the ritual in question, namely offering of bowl of sandal wood; whether it is an essential practice or not.
34. A perusal of the pleadings and reliefs claimed by the plaintiff shows that the plaintiff has averred that as per the established practice, the
defendant and his ancestors used to bring sandal bowl, which the plaintiff and his ancestors used to offer to the ''Majaar'', on defendant''s utterance
VERNACULAR MATTER OMITTED"". The adjudication of issue No.4 as done by the trial Court is clearly contrary to law and the same,
therefore, deserves to be quashed and set aside. Issue No.4 could not have been decided as a preliminary issue without entering into the other
issues, particularly the issue No.1.
35. As an upshot of the discussions foregoing, this Court concludes and holds that the trial Court has erred in dismissing the suit while deciding
issue No.4 only and not entering into the other issues. Hence, the impugned judgment dated 28.04.1990 passed by Addl. District Judge, Nagaur is
set aside.
36. To adjudicate the real controversy appropriately, issue No.1 as framed by the trial Court is required to be modified rather furcated in two
issues, so as to ascertain as to whether the suit for the relief claimed is maintainable or not. The case is remitted back to the trial Court for
adjudication afresh. The issues framed by the trial Court are modified in the manner that issue No.1 as framed by the trial Court shall stand splitted
in Issue No.1 (a) and 1 (b) and Issue No.4 would be recaste as infra :-
VERNACULAR MATTER OMITTED
37. The core question involved in the present case can be decided only after recording of the evidence and answering the issues No.1(a) and 1(b)
above. The file is restored to the dockets of the trial Court for decision afresh. Needless to observe that the trial Court will decide all the issues in
accordance with law, after permitting the parties to lead their evidence.
38. The appeal stands allowed in the above terms.
39. Both the parties are directed to appear before the trial Court on 02.04.2018. Record of the trial Court be sent back forthwith.
