Issue No.
The defendant at any rate cannot raise objection to the omission to implead Ram Sarup Das, for there is number privity between the defendant and Ram Sarup Das and neither derives title through the other.
About a year later, i.e. on 10 7 1926, he executed another document purporting to transfer his Mahantship in favour of the present first defendant appellant, Vikrama Das.
The sole defendant in the suit was Bharat Das described as Mahant Bharat Das insane under the guardianship of Devi Prasad Singh A written statement companytesting the suit was filed by the said Devi Prasad Singh on behalf of Mahant Bharat Das on 30 1 1934.
The suit out of which this appeal arises relates to an ancient Thakurdwara in the village of Amaulipur companytaining a temple of Sri Hanumanji and Sri Thakurji, the entire institution being known as Amaulipur Asthan hereinafter referred to as the Asthan .
Vikrama Das who figured as the defendant in the litigation which went up to the Privy Council is the first defendant in this suit and the third defendant is Mahant Bharat Das described as insane under the guardianship for Devi Prasad Singh .
But the High Court directed him to be brought on record because he claimed to be intermeddling with the trust estate.
The plaintiffs have every right to seek declaration of Mahantship of Ram Sarup Das, for they as trustees and he as Mahant, are knit together into a body by the companymon bond of management of the Asthan.
It was further found as follows The decree arms the present plaintiffs with the right of possession of the Asthan and its properties and of their management.
The defendant relied upon the deed and it was for him to establish its validity.
Ram Sarup Das is accordingly the only respondent before us.
The fourth plaintiff is one Baba Bansi Das.
The first defendant is the only companytesting defendant.
By the date of the institution of the present plaint, the Khewat was changed in the name of the first defendant only in respect of the properties mentioned in List C but similar applications in respect of other properties were pending.
The proceedings in suit No.
The companytesting defendant is the most closely related Nihang Sanyasi from the spiritual family of Bharat Das and was duly appointed Mahanta according to the custom after the execution of the deed dated 10 7 1926.
On appeal, the High Court modified the decree to the extent that the declaration in favour of the plaintiff that he was in the position of the Mahant of the Asthan was set aside.
He has made an abortive attempt to prove his possession by examining a few unscrupulous tenants but the evidence on record is overwhelmingly in favour of plaintiffs possession.
It may be numbericed that this was prior to the date of the judgment of the Privy Council which was given about a year and half later on 25 10 1935.
90 of 1933 was bad.
The property in dispute is in number way waqf property.
1956 AIR SC 382 The Judgment was delivered by JAGANNADHADAS JAGANNADHADAS J. This is an appeal by the first defendant against the affirming judgment and decree of the High Court of Allahabad dated 22 2 1949, on a certificate granted by the said Court under Article 133 1 a of the Constitution.
After the present defendant, Vikrama Das, succeeded in the Privy Council in getting the suit against him by Gomati Das dismissed, he made an application in the Revenue Court for rectification of Khewats relating to the properties of the Asthan.
He raised various pleas which may be substantially summarised as follows.
According to the plaint, he was impleaded in order that, in the alternative a decree for possession may be passed in favour of the said fourth plaintiff on the footing that he is the successor to Mahant Bharat Das.
1 to 3 as trustees and Mahant Ram Sarup Das as the Mahant of the Asthan of Amaulipur over the properties mentioned in Schedule C, be decreed.
The next important issues are Nos.
The judgment of the Privy Council was given on 25 10 1935.
This was suit No.
27 of 1927 by Gomati Das against the present first defendant for the declarations that a the deed of 10 7 1926, is null and void, and b he himself was the Mahant of the Asthan validly in possession and occupation of the Asthan and its properties.
The present suit has been filed for a declaration that the plaintiffs and the second defendant are the trustees of the Asthan and the properties appertaining thereto in Lists A, B, and C, with which the first defendant, Vikrama Das had number companycern, and also for possession in respect of the said properties in case the first defendant was companysidered to be in possession of the same by virtue of mutation of name in his favour in the revenue records .
11 the finding is as follows This plea is based upon the fact that a suit for cancellation of the deed dated 10 7 1926, has become time barred and as the subject of the present suit is supposed by the defendant to be in reality cancellation of that deed he set up bar of limitation.
As it stands it is operative even as against Bharat Das himself.
This order was affirmed by this Court by its order in Chambers dated 5 5 1955.
The companypromise in the aforesaid suit was caused to be accepted by the Court by deceiving the Court and on companycealing the real facts At the trial a further objection was taken to validity of the decree on the ground that the suit which resulted in that decree was instituted by only two out of the three persons who had obtained the Collectors sanction to institute the suit and that accordingly the institution of the suit as well as the decree thereupon were invalid.
During the pendency of the appeal in the Privy Council, three persons by name Bansi Das, Raghubir Das and Ram Sarup Das applied to the Collector of the District under S. 92 read with S. 93 Civil P. C. for permission to file a civil suit in respect of the Asthan for the removal of Mahant Bharat Das.
In view of the fact that the plaintiff failed in the High Court to establish his title as Mahant, the Privy Council held that he was number entitled to get a declaration that the deed of 10 7 1926, was null and void as against the Asthan.
90 of 1933.
4 and 5, which run as follows Issue No.
But the decree of the trial companyrt was maintained in so far as it declared that deed of 10 7 1926, to be null and void as against the Asthan.
As regards issue No.
90 of 1933.
It is ordered and decreed that the plaintiffs claim about the declaration on the point that the plaintiffs and defendant No.
It was number at all necessary to implea Ram Sarup Das for there are number differences between the trustees and the Mahant.
As against this decree, the first defendant, Vikrama Das, filed an appeal to the High Court, which dismissed it by its judgment and decree dated 22 2 1949.
He was succeeded by Mahant Bharat Das, still alive, who according to the plaintiffs case, became mentally deranged Bharat Das appears to have executed on 11 5 1925, a power of attorney in favour of one Gomati Das.
The entire income of these properties is spent for the Bhog of the idols and in maintaining a Sada Bart for Sadhoos and Faqirs.
12 the finding is as follows The defendant has pleaded section 42 inasmuch as the plaintiffs have sought a mere declaration in respect of the properties and number possession as well.
The second plaintiff, Raja Ram Pandey, died during the pendency of the appeal in the High Court and the appeal was companytinued as against the other two plaintiffs as respondents.
The defendant can escape from the clutches of the decree in suit No.
The plaint therein prayed for a decree a for the removal of the then Mahant Bharat Das and for the appointment of his alleged disciple Ram Sarup Das as Mahant, b for the appointment of a companymittee companysisting of seven named persons for fulfilling the objects of the waqf, and c for the entrustment of the properties of the trust to the said Ram Sarup Das and Committee for management and for preparation of a scheme.
Three out of them, viz Daulat Ram Asthana, Raja Ram Pandey and Ram Prasad Singh, were persons who had been appointed as trustees under the companypromise decree in suit No, 90 and 1933.
The cause of action for the present suit has been furnished by the order of the Board of Revenue directing mutation in favour of Bikrama Das and the object of the present suit is number other than abrogation of the Revenue Courts order by a Civil Courts decree which is only effective remedy of mistakes in mutation companymitted by the Revenue Courts.
The plaintiffs have number right to maintain the suit, the decree under which they claim to be trustee being and invalid and companylusive one to which he was number a party.
The companytesting defendant was number a party to suit No.
Hence by custom he is entitled to succeed to the Amaulipur Garhi presumably because Bharat Das became incompetent , and 2 the document executed by Bharat Das on 10 7 1926, transferring the Mahantship to him entitles him thereto.
There was a further appeal by the first defendant, Vikrama Das, to the Privy Council.
The permission was granted by order of the Collector dated 18 11 1933.
Bharat Das was the owner of the property and number a trustee.
The suit was instituted well within time.
The only properties against which the defendants name was mutated prior to the suit are those included in list C and the plaintiffs have sought possession of these properties.
The fourth plaintiff, Baba Bansi Das, filed an application dated 11 11 1942 , in the trial Court itself asking his name to be removed from the array of plaintiffs and this was ordered.
Issue No.
8 Are the plaintiffs alone number companypetent to sue?
The Asthan owns large property dedicated to it and specified in Lists A, B, and C of the plaint.
The suit itself has been instituted with the sanction of the Collector.
A companyy of the judgment is number on the record in these proceedings but it is to be found reported in Mahant Bikrama Das v. Gomati Das 1935 ALLWR 1408 PC A .
The suit was accordingly dismissed in the its entirety.
It was also stated in the application that two other persons, Ram Sarup Das and Shyam Narayan Pandey were intermeddling with the trust estate and that they should also be impleaded.
The second defendant is one Pandit Chandra Sekhar Pandey who was one of the seven persons enumerated as trustees under the companypromise decree in suit No.
The trial companyrt decided that suit in favour of Gomati Das and granted him both the declarations he had asked for.
Ram sarup Das whose appointment as Mahant , on removal of the existing incumbent, was prayed for, was number a party to the suit.
The substantial companytentions raised before the High Court as appears from its judgement and as summarised in the order of the High Court granting the certificate are three fold.
12 Is the suit barred by section 42 of the Specific Relief Act As regards issue No.
This right had been violated in respect of certain properties by an adverse order of the Revenue Courts and was in jeopardy with regard to the other properties at the date of the suit by the pendency of mutation applications of the defendant and the plaintiffs undoubtedly had, by virtue of the decree, the right to institute the present suit.
The finding of the learned Judge on this issue is as follows There is number doubt that there were more than one, irregularities in the suit.
90 of 1933 in the Court of the Subordinate Judge, Basti.
90 of 1933 only if succeeds in making out a legal title to the Asthan and the property, eligible to the Courts recognition and it is therefore, necessary to determine the defendants rights qua the Asthan and its property There were a number of other minor issued which have mostly been answered in favour of the plaintiffs and out of which it is sufficient to numberice only issues Nos.
The plaintiffs was number de facto trustees.
In the first place, I do number think it was necessary for the plaintiffs to seek cancellation of the aforesaid deed as a necessary preliminary to the enforcement of their rights as trustees and they would very well ignore the deed.
As regards issue No.
The defendant was number in actual possession of the properties in suit.
The only surviving trustees are the plaintiffs and the Chandra Sekhara 2nd defendant , the rest of those who were appointed by the decree in S. 92 suit having died since.
According to the plaint in the present suit, Bharat Das was removed from Mahantship by the aforesaid companypromise decree and Ram Sarup Das began to manage the Asthan and its properties along with the truestees appointed under the said decree, having got his name entered by the Revenue Court in the registers in respect of all the villages companynected with the Asthan.
The appellant filed an application in the High Court after two other futile applications on 3 9 1953, praying that the second defendant Chandrasekhara Pandey may be treated as the trustee against whom the present appeal may be companytinued in the place of the deceased plaintiffs 1 to 3.
11 Is the suit time barred?
There is a fairly long history of litigation relating to this Asthan since about 1926 which it is necessary to set out for a companyrect appreciation of the points that arise for decision in the present appeal.
It was number necessary for the plaintiffs to sue for anything more than a declaration in respect of the properties against which the name of Ramsarup Das stood recorded at the date institution of the suit.
8, 11 and 12 which are as follows Issue No.
Various issues were framed and a decree was granted in favour of the plaintiffs on 13 2 1943.
The companypromise was to the effect that the various reliefs asked for by the plaintiffs should be decreed including the prayer for the appointment of Ram Sarup Das as Mmahant, with the companydition that the Asthan should be responsible to maintain the defendant, Mahant Bharat Das, during his life time and that Ram Sarup Das should be liable to maintain him out of the income of the trust property.
The suit aforesaid was beyond the scope of S. 92, Civil Procedure Code and necessary proceedings were also number taken under section 4.
One Ganpat Das a previous Mahant of the Asthan died in the year 1920.
This prayer was opposed on behalf of Ram Sarup Das.
8 the finding is as follows There is number force in this plea.
It is desirable at this stage to numberice some changes in the Course of these proceedings as regards the array of some of the original parties to the present litigation.
2 are the trustees of the Asthan of Amaulipur and the properties companynected with it mentioned in lists A, B and C and are the managers of the properties aforesaid as of right, with which the defendants have number companycern and also about the recovery of possession in favour of plaintiffs Nos.
There had been valid assignment from Bharat Das in appellants favour.
The decree in question was passed by a companypetent companyrt which has jurisdiction to try the suit.
A report was thereupon called for by the High Court from the lower Court.
After the decree Ram Sarup Das entered into possession of the Asthan property and his name was recorded in the revenue papers until it was expunged in 1940 by the Board of Revenue.
Plaintiffs 1 and 3, Daulat Ram Asthana and Ram Prasad Singh died after leave to appeal to this Court was granted by the High Court, the former on 2 2 1951, and the latter on 19 2 1952.
The suit was companypromised shortly thereafter and a petition of companypromise was filed on 3 4 1934.
A suit under S. 92 Civil P. C. was accordingly filed on 27 11 1933.
The decree in suit No.
The plaint was filed by four persons.
The decree is perfectly good so long as it is number set aside by a companypetent companyrt at the instance of Bharat Das.
This led to a suit No.
A decree in terms of the companypromise was also passed on the same date.
It is necessary to numberice that the suit was filed by only two of the three persons to whom sanction had been granted by the Collector, i.e. , Bansi Das and Raghubir Das and that the third, viz.,
