1. This is an appeal against a decree dismissing the plaintiff's suit No. 347 of 1928, brought in the Court of the First Class Subordinate Judge at Nasik, for a declaration that the property specified in the plaint belonged to the Shri Krishna Mandir, that defendants Nos. 1 and 2 had no private or personal right over it except that of being pujaris of the mandir, that the alienations made by defendants Nos. 1 and 2 privately or through Court of that property were not legal and valid and binding on the mandir, and that the plaintiff was entitled, therefore, to recover possession of that property.
2. There were several defendants to this suit, because the properties which were the subject-matter of the suit had been alienated either by defendant No. 2 or by defendant No. 1, or in execution of decrees against either of them, in favour of several persons who are on record as other defendants.
3. Defendant No. 2 is the father of the present plaintiff, apparently living with the plaintiff, the suit having been brought by his wife as next friend of the minor plaintiff, who is stated to be two years old. Defendant No. 2 did not put in any written statement.
4. Defendant No. 1, who is a cousin of defendant No. 2, contested the suit on several grounds, namely, that the plaintiff's mother had no right to sue; that he did not admit the document relied upon by the plaintiff and had no knowledge of it; that the property in suit was not covered by that document; that the document was not a trust-deed and did not create any trust; that the property in suit was the ancestral property of defendants Nos. 1 and 2; that in a compromise decree arrived at between defendants Nos. 1 and 2 in suit No. 354 of 1921 a partition of the property was agreed to and directed; and that defendant No. 2 was in possession of the property which he got under the partition decree. He further suggested that defendant No. 2 was in effect colluding with the plaintiff, and that the suit was inspired by him. As regards the land his contention, which is stated in para. 6 of his written statement, was that the Jahagirdar of Chandori, Sardar Hingne, had given the land to his ancestors for the use of their private temple, and that in the deed of partition between defendants Nos. 1 and 2, it was decided to carry out the puja alternately every year by defendants Nos. 1 and 2. He: further contended that the temple was not the property of Hingne, that the house in which the temple was erected was built by their ancestors, and that the house also did not belong to Hingne.
5. The other defendants to the suit questioned the plaintiff's right to bring the suit, and denied that the property in suit was trust property as alleged. They contended further that Section 92 of the Civil Procedure Code would be a bar if it was trust property, that the alienations were valid and binding on the plaintiff, and that the plaintiff was not entitled to the declaration.
6. The learned trial Judge framed several issues. The first was, 'Does, plaintiff prove that the property in question is the trust property of the Shri Krishna Mandir?' It was found in the negative.
7. The second was, 'If so, can plaintiff maintain the suit without permission of the Collector under Section 92 of the Civil Procedure Code?' It was not decided.
8. The third was, 'If the trust be proved, are the transactions with regard to the property valid? 'The finding was that the transactions were valid.
9. The fourth was, 'If not, what order should be passed?' The finding was one dismissing the suit.
10. It is unfortunate that the issues framed in the case do not correctly represent the effect of all the pleadings. The findings also have not been accurately recorded, for instance, issue No. 3 was :-'if the trust be proved, are the transactions with regard to the property valid?' On this it is found that the transactions are valid although the finding on the first issue was that the property was not the trust property of the Shri Krishna Mandir. A little confusion has also arisen by the learned trial Judge not having framed any specific issue, and not having given a definite finding as to the identity of the property covered by the so-called trust-deed on which the plaintiff relies, as also on the genuineness of some of the documents. We say this because it is suggested before us that the genuineness of some of the documents was also impeached in the lower Court. The learned Judge assumed that the several documents, which he has referred to, referred to the property in suit. Having so assumed, he proceeded to consider the documentary and oral evidence relating to the trust, and arrived at the conclusion that the plaintiff had failed to prove that the property in question was the trust property of the Shri Krishna Mandir. The learned Judge says :-
It is thus evident that the deed, exhibit 123, is only a deed of gift giving the land and the shop as gift to Damodar Amrit Bhonde in consideration of his managing the temple from generation to generation and it is not at all a deed of trust-a trust has not at all been created in favour of the temple or idol.
Later on the learned Judge refers to other evidence on the strength of which' also he records the following conclusions :-
Thus the statement of plaintiff's own witness and the statements in the documents produced by the plaintiff referred to above give a complete lie to plaintiff's story of there, being any trust in favour of the temple or idol with respect to the property in suit, and on the contrary conclusively prove that the property was given as gift to plaintiff's ancestors, and was treated by them as their private property since they got it as gift or inam... Plaintiff has thus completely failed to prove the alleged trust or the property in suit was the trust property belonging to the mandir.
In all these findings he has assumed that the documents, which he was referring to except the deed, referred to the plaint properties or a part of them. Although it has not been conceded before us that that assumption is correct, I shall proceed to consider the appellant's arguments on the basis that the documents refer to the property in suit.
11. The learned Counsel for the appellant has in this, appeal not contested the finding of the trial Court, or any part of it, that the property has not been proved to be the trust property of the Shri Krishna Mandir. His argument, in so far as I have been able to understand it, is this : On the finding that there is a gift of the property in suit to the original donee, the ancestor of defendants Nos. 1 and 2,-that gift being an onerous gift coupled with the obligations to discharge certain duties out of the income of the properties given, and the conditions attached to the gift being such as confer a hereditary interest both in the property as well as in the obligations, the appellant, as a Hindu son of the second defendant, is interested not only in the property, but is also further interested in the obligations with which the property is charged in the hands of the donee and his successors. It has been argued that having such an interest by birth in the ancestral property, the appellant has a right to contend that the alienations of the ancestral property, made either by his father or by his grandfather and his father's cousin, were not legal and therefore not binding upon him, and further to ask for immediate possession of the property even during the lifetime of his father, so as to enable him to perform the duties with which the donee was charged. In effect the learned Counsel asked us to ignore the evidence led or attempted to be led by the appellant in support of his case so as to abandon the pleadings in his own plaint,; and to give reliefs entirely different from the reliefs which the appellant has claimed in the plaint itself. I may say that this line of argument has relieved us from the duty of appreciating the evidence and coming to our own conclusion on the merits of the various documents considered by the learned trial Judge. Presumably the learned Counsel was pressed, or felt pressed, by the difficulty which he might have otherwise had of establishing a right to sue even on the basis of a trust as alleged in the plaint, and has, therefore, resorted to the ingenious expedient of asking for relief on the basis of the findings recorded by the learned trial Judge, findings which have not been accepted by the respondents in this appeal as being correct.
12. Now, there are obvious difficulties in the way of acceding to the above contention of the present plaintiff, the main difficulty being that he is making out an entirely new case now from what he has made in the plaint, and is asking for entirely different reliefs from those which he asked for in the plaint. In paragraph 1 in the plaint, the plaintiff stated, after referring to the ancestral property of Sardar Hingne, as follows :-
This building is known as 'Krishna Mandir.' In order to carry out the worship of the idol, naivedya and other incidental festivals etc., daily and periodical, Sardar Amrutrao Purshottam Hingne Jahagirdar residing at Ghandori, in the year Shake 1755, Ashwin Sudh 10, made a trust-deed of the land mentioned in Schedule (A) and of the original shops mentioned in Schedule (B). According to this trust-deed, the abovenamed Jahagirdar had appointed the member of the family of the plaintiff and the defendants Nos. 1 and 2 as pujaris hereditarily for carrying out the worship etc., of the idol and having mentioned in the trust-deed that the families of the plaintiff and the defendants Nos. 1 and 2 should carry out the worship, etc., of the idol by enjoying the property mentioned in the Schedules mentioned above forever from generation to generation, and the Jahagirdar has passed a sanad to the then ancestor of the plaintiff and the defendants Nos. 1 and 2 named Damodar Amrutrao Bhonde.
In paragraph 2 the plaintiff repeats the statement that 'the property mentioned in Schedules A and B attached to this plaint, is trust property for the use of the Shri Krishna Temple and the defendants Nos. 1 and 2 had or have no right to alienate.' He proceeds then to complain about the various alienations of the trust property and concludes as follows :-
This is detrimental to the rights of the plaintiff This suit is, therefore, instituted to declare that the defendants Nos. 1 and 2 and the defendants Nos. 3 to 10 have no right over the property and that it should be therefore given in his possession for the use of the idol.
13. After alluding to the trust in several other paragraphs in paragraph 7 the plaintiff again says, 'the property in suit is the trust property of the God Shri Krishna and the Shri Krishna Temple, and the defendants Nos. 1 and 2 have no right in the trust property except as pujaris.
14. In the prayer Clause (para. 11) also the plaintiff prays as follows :-
The property in suit is of and belongs to the Shri Krishna Temple and the defendants Nos. 1 and 2 never had nor have any right or interest in the property except as pujaris.... The defendants Nos. 3 to 10 have no right over the property got by them through the defendants Nos. 1 and 2 by their private transactions. The plaintiff prays that having declared this, the Court should give the possession of the property to him for carrying out the duties with regard to the temple.
15. It is clear from the few passages I have quoted above from the plaint, that the suit was based on the express and specific allegation that, the property belonged to the idol and not to the family, the prayer itself being for an express declaration that it so belonged to the Shri Krishna Temple and that the defendants Nos. 1 and 2 never had or have any right or interest in the property. On this plaint a question would naturally arise as to what the plaintiff's right to bring the suit would be. The plaintiff has suggested such a right in paragraph 8 of the plaint where he says, 'he is a descendant of Damodar Amrut Bhonde mentioned in the original trust-deed and has the right of carrying out the daily worship of Shri Krishna,' and further 'the plaintiff has instituted this suit as pujari of the temple because the actions of all the defendants are illegal.
16. In the view we take of the arguments advanced by the appellant's learned Counsel, it would not be strictly speaking necessary to consider whether the plaintiff has a right to sue or not. Although we have not heard full arguments on that point, our present view is that on the allegations of a trust, such as this, the beneficial ownership being in the idol, the minor plaintiff could presumably have no right to bring the suit. But the ground on which we base our decision on the only point urged in appeal is this : The plaintiff having based his suit on the ground that the property belonged to the temple, that the idol was the beneficiary, that defendants Nos. 1 and 2 had no interest in the property (this must necessarily carry with it an assertion of his own want of interest in the same), and that the alienations were therefore void, he cannot now be allowed, in appeal, to make out an entirely different and inconsistent case claiming ownership in the property which he had denied in the lower Court, and asking for declaration of his own right in the property as opposed to the right of the idol under which he was claiming in- the lower Court. The appellant never made an alternative case in the lower Court, and never asked for an amendment of the plaint (assuming such an amendment could be allowed). Even in his memorandum of appeal, he contested the findings of the lower Court, and maintained that the property was trust property belonging to the idol. It will be unfair to the respondents as well as, in our opinion, against law, to allow the plaintiff to make out now in appeal such a new case as he endeavours to make out. The respondents had no opportunity to meet a case such as this in the lower Court, which is quite different from the case on which the plaint is framed. If such an action had been originally brought in the lower Court, different considerations as to the right of the minor Hindu son to bring such a suit under Hindu law might have arisen and various contentions might have been taken. It is not enough to say that the learned Judge has himself found the facts, because the finding of the lower Court to this effect has been followed by a dismissal of the suit and has also not been accepted by the respondents. On the obvious ground, therefore, that the plaintiff has failed to make out the only case which is set out in the plaint, his suit must fail. For the simple proposition that the plaintiff could not be allowed to make out a new and inconsistent case of this kind in appeal or that he cannot be allowed to adopt the case of the defendants, partly or wholly, in appeal and; ask for relief on that basis, no authority is needed. We have not called on the respondents to cite authorities on the point, and, if any authority were needed, the decision in Shibkristo Sirkar v. Abdool Hakeem which appears to have been followed by our own High Court in subsequent cases, is sufficient for the purpose. [See also the cases of Batmukund v. Bhagvandas2 and Nagendra Mohan Roy v. Pyari Mohan Saha I.L.R. (1915) Cal. 103 The head-note of that case is as follows :
After parties have come to trial to determine which of two stories is true, the plaintiff cannot be allowed to amend his plaint by abandoning his own story, and adopting that of the defendant, and asking relief on that footing : for the question, whether on that footing the plaintiff is entitled to relief, is one to which the defendant's attention has not been called, and as to which he has had no opportunity of answering.
17. Besides, in the present case the relief that the plaintiff would claim in appeal on the case now sought to be made by him, as I have already said, would not only be different, but entirely inconsistent with the relief claimed in paragraph 11 of the plaint; whereas in paragraph 11 he claimed the relief that the property in suit was of and: belonged to the Shri Krishna Temple and defendants Nos. 1 and 2 never had nor have any right or interest in the property except as pujaris, the relief that the plaintiff now, on his altered argument, is asking for from the Court would be to declare that the property is the ancestral property of the family in which he has an interest, that the alienations of the family ancestral property by his father, grandfather and uncle are illegal because of his interest by birth in the property, and that the alienations should be set aside, wholly or partially, on the ground of such an interest. It would obviously land us in an enquiry as to the extent to which he would have the right to set aside these alienations by reason of his alleged interest in the property, during the lifetime of his father and uncles. All these are questions to which' the parties' attention had never been drawn in the lower Court, and which the Court was not asked to consider, and on which therefore there were no issues framed. It is sufficient, therefore, to say that such a new and inconsistent ground cannot be allowed to be taken in appeal.
18. The appellant's learned Counsel has not sought to support the case on any other ground than the one I have alluded to. The appeal must, therefore, fail, and be dismissed.
19. I may add that we have formed no opinion as to the merits or otherwise of the present contention of the plaintiff as appellant, and that we are not to be deemed to have decided that his contention, if it had been allowed, was not correct.
With regard to costs, the appeal is dismissed with two sets of costs : one set in favour of respondent No. 1, and the other set in favour of the respondents alienees appearing in this case to be divided equally among them. The costs of Government, of course, will be paid by the appellant and defendant No. 2. The said costs, if not paid, will be recoverable from the estate of defendant No. 2 and the plaintiff.
20. I agree.