1. The plaintiffs filed the present suit for possession of a site ABCDE shown in the map filed with the plaint on the allegation that the land belongs to the Vaishnava Bairagi Samaj together with the structure thereon and the tombs and the temple and that the property constitutes a public trust. The suit was brought by five plaintiffs who claimed to be the members of this Vaishnava Bairagi Samaj. It appears that there was an old structure on the property which was dismantled by the defendants, the present respondents, who built a new one on the property.
There is no dispute that at one time this property used to be managed by one Narsindas Bhagwandas Bairagi who had three sons Bhagwandas, Narayandas and Laldas Narayandas, who managed the property after Narsingdas had three sons Kisandas, Bisandas and Bandhudas, and it would appear that Bisandas mortgaged the property with Kisan, the father of the present defendant No. 1, on the 2nd of June 1927 for a consideration of Rs. 300/-. According to the plaintiffs, this mortgage by Bisandas was without the consent of the Panchas of the Bairagi community and Bisandas had no right whatever to mortgage the land. On this mortgage, the mortgagee Kisan filed a suit, being Civil Suit No. 138-A of 1937, and a preliminary decree was obtained by him on 29th of April 1938.
There was a final decree for sale of the property and, in execution of that decree, the property was sold and the decree-holder Kisan himself purchased it and obtained possession thereof on the 27th March 1943. Kisan died on 5-10-1947. The old structure on the property was dismantled by Kisan and a new structure was built on the land. It would appear that the plaintiffs objected to the building of this new structure and a notice was served on Kisan even during his life-time and plaintiffs gave an application to the Deputy Commissioner for permission to file a suit against the deceased Kisan. It was held that no permission was necessary and, as Kisan had already died, the present suit was instituted against his son Chagan and others by the plaintiffs on the 26th of January 1948.
2. Chagan was the main contesting party and there is no dispute that the original defendants Nos. 2, 3 and 4 were added as pro forma parties. The defence of defendant No. 1 was that the property did not belong to the Vaishnava Bairagi community as alleged by the plaintiffs but that Narasingdas and his heirs were owners of the buildings and the land and had the right to mortgage it with the defendant No. 1's father Kisan. Defendant No. 1's father Kisan had obtained a decree and had become a bona fide purchaser for value at the Court sale without notice. The stand taken by the contesting defendant was that the mortgage created by Bisandas was a valid mortgage because the property belonged to the family of Narayandas as their private property.
3. On these pleadings, the trial Court framed a number of issues. It may be mentioned that the plaintiffs had applied for permission to sue in a representative capacity under Order 1, Rule 8 of the Code of Civil Procedure, but it seems that though notices were issued, there is no formal order on the record showing the grant of permission. The trial Court came to the conclusion that the site in suit ABCDE together with the structure standing thereon did not belong to the Bairagi Vaishnava Samaj as alleged by the plaintiffs. It also held that the site was not used for the purpose and benefit of the members of the Bairagi community, nor did Narsingdas and after him Narayandas look after the property on behalf of the Bairagi community.
It was further held that the plaintiffs were not the trustees of the Bairagi community but they could sue as its representatives. The trial Court's finding as regards the ownership of the property was that Narsingdas owned the site exclusively as his ancestral property. I may mention that it was the defendant's case that in a partition between the sons of Narsingdas in the year 1895 the suit site had fallen to the share of Narayandas, and that contention was accepted by the trial Court. On these findings the trial Court dismissed the plaintiffs' suit.
4. In appeal, the learned Additional District Judge Buldana differed from the trial Court and found that the suit property was public trust property and the Math and its property belonged to the Bairagi community. It also found that Narsingdas his descendants were permitted to deal with the Math property as managers. However, the lower appellate Court came to the conclusion that the present suit filed by the plaintiffs was not maintainable because it was not a suit by any duly appointed trustee, and representatives of a community could not maintain a suit for physical possession of the property belonging to the Math seeking to get back possession from a person holding under an unlawful alienation.
Such a suit, according to the view of the lower appellate Court, could only be instituted by a duly appointed trustee. That is why even though the appellate Court decided against the defendants that the property was not the private property of Narsingdas, the suit came to be dismissed on the ground that it was not maintainable. The plaintiffs have come in second appeal.
5. Now, the principal point argued in this appeal is whether the suit as framed is maintainable. Mr. Bobde the learned Advocate for the appellants, contends that the view of the lower appellate Court that the suit is not maintainable is erroneous in law, while Mr. Kherdekar for the respondent-defendant No. 1 supports that view. But before I go into that question I will deal with certain contentions raised by Mr. Kherdekar in support of the decree of the lower appellate Court.
6. In the first instance, Mr. Kherdekar contends that the lower appellate Court's view that the plaintiffs were permitted to sue in a representative capacity under Order 1, Rule 8, of the Code of Civil Procedure, is erroneous. I have already pointed out that though the plaint itself asked for permission to sue in a representative capacity under Order 1, Rule 8, and though notices were issued, there does not seem to have been any formal order passed by the trial Court.
At the same time, Mr. Bobde is right when he points out that the effect of the finding of the trial Court on issue No. 5 was that though the plaintiffs are not trustees they could sue as representatives of the Bairagi community. It is well established that permission under Order 1, Rule 8, Civil Procedure Code, can be granted even at the appellate stage and in my judgment, the lower appellate Court was right in its view that though there doe not seem to be any formal order upon record, it does appear that the plaintiffs prayer that they should be allowed to sue in a representative capacity under Order 1, Rule 8, was granted by the trial Court.
7. Then, the second contention of Mr. Kherdekar in support of the decree passed by the lower appellate Court is that the plaintiffs have not filed the suit for a declaration that the alienation by way of a mortgage made by Bisandas in favour of defendant No. 1's father Kisan was invalid for want of legal necessity. He contends that it is admitted by the plaintiffs that Narsingdas and his descendants were managers of this Math, and says Mr. Kherdekar that as managers they were entitled to alienate the property for the purpose of legal necessity.
But it is for the alienee to prove that a sale by manager is valid on the ground that it was for the purpose of legal necessity. In this case, the defendants have not pleaded that there was any legal necessity for the alienation made by Bisandas. On the other hand, their contention had been that the property was not trust property at all belonging to the Bairagi community but it was private property owned by Narsingdas and his descendants, and as such, Bisandas was entitled validly to alienate the property. I do not think, therefore, that there is any substance in this contention of Mr. Kherdekar either.
8. Then Mr. Kherdekar also contends that the view of the lower appellate court that the property in suit is public property belonging to the Bairagi community is erroneous in law, and he says that finding is not a finding of fact because it is based on inferences from proved facts and a legal inference from proved or admitted facts would be a matter of law. In the present case, however, the lower appellate Court has relied on oral as well as documentary evidence to come to the conclusion that the property in suit belongs to a Math and the same is a public institution. Mr Kherdekar says that the property has been in possession of Narsingadas and his family for three or four generations.
This long uninterrupted possession according to Mr. Kherdekar, goes to support the defendants' case that this was private property of Narsingdas. Admittedly also the managership went by inheritance. There was also a partition in the family as a result of which the suit property went to Narayandas. Mr. Kherdekar also says that, in fact, after the death of Narayandas, Bisandas mortgaged the property to defendant No. 1's father Kisan as far back as the 2nd of June 1927. According to Mr. Kherdekar, the proper inference to be drawn from all these facts would be one of law and the lower appellate Court's view that the suit property belonged to a public institution is erroneous.
I am not impressed by this argument. As I have already stated the lower appellate Court has taken into consideration a number of circumstances and has appreciated oral as well as documentary evidence. It is pointed out that the Math came into existence long before 1880 and its origin was not traceable. It was not till 1927 that a stranger came to be on the property and that was when the property was mortgaged by Bisandas. The Math is known as the Bairagyacha Math. Idols of Hanuman and Balaji are installed in the temple which are worshipped by the entire Bairagi community. A fair is held at which time Bairagis stay in the Math and Gokul Astami Puja is similarly performed.
User of this kind by the entire Bairagi community was never objected to by Narayandas or his descendants. It appears also that in an enquiry by the Naib Tahsildar there was a decision that the tombs in this Math belonged to ancient Bairagis and the Math was public property. See report Exhibit P-4. It is true that Exhibit D-1 shows that Bisandas was shown as the owner of the Math in 1931-32 and Exhibit D-2 shows the name of Narayandas. There is also documentary evidence to show that Narayandas and his descendants were building certain structures and that taxes were also paid by Narayandas and his descendants in 1938 and 1948.
But that, as pointed out by the lower appellate Court, is not at all inconsistent with the evidence that the Math was public property. It appears that the Bairagis belonging to this community do not live in Deulgaon Raja where the suit property is situated but they are spread out over a wide area and mostly live in the Nizam's Dominion and the evidence shows that the Bairagis stay in the Math only once a year that is why the appellate Court took the view that Narsingdas and his descendants were permitted to act as managers of the Math and its property. In my opinion, the finding of the lower appellate Court, that the suit property belonged to a Math which is a public institution and is trust property, would be a finding of fact which I am not entitled to interfere with in second appeal.
9. That brings me to the only law point that has been raised on behalf of the appellants viz. whether the view of the lower appellate Court that the suit as framed by the plaintiff is not maintainable is correct. Now, this is not a suit under Section 92 of the Code of Civil Procedure. As I have already stated in the earlier part of this judgment, the plaint recites that an application was filed to the Deputy Commissioner in Revenue Case No. 1/70 of 1946-47 for permission to file a suit against the deceased Kisan but it was decided on 22-9-1947 that there was no necessity for permission. The plaintiffs applied for permission to file a suit on behalf of the whole Vaishnava Bairagi Samaj under Order 1, Rule 8, of the Civil Procedure Code and I have already held that the permission seems to have been accorded by the trial Court.
The suit was for possession from defendant No. 1 who was in possession by virtue of a purchase in execution of a decree in a mortgage suit which mortgage was invalid according to the plaintiffs. Mr. Bobde contends that the suit is on behalf of the entire Vaishnava Bairagi Samaj. The plaintiffs seek possession of the land on behalf of the Bairagi community. It is contended that the lower appellate Court's view that the plaintiffs' suit as framed is not maintainable is erroneous. In support of his contention Mr. Bobde relies on several decisions on the Madras High Court. The first one on which reliance is place is Venkataramana Ayyangar v. Kasturiranga Ayyangar, ILR Mad 212: AIR 1917 Mad 112. In that case, a Full Bench of the Madras High Court held that a suit could be maintained at the instance of the plaintiffs acting neither on the relation of the Advocate General nor with the sanction prescribed by Section 18 of the Religious Endowments Act, but merely suing on behalf of themselves and of other worshippers of the temple.
In the present case also the plaintiffs are suing as representatives of the Vaishnava Bairagi Samaj and Mr. Bobde contends that their suit for possession on behalf of the Bairagi community would not be a suit under Section 92, and the suit as framed would be competent. Mr. Bobde also relies on another ruling of the Madras High court reported in Chidambaranatha Thambiran v. Nallasiva Mudaliar, ILR Mad 12: AIR 1918 Mad 464, where it was held that the disciples of a mutt have sufficient interest within Order 1, Rule 8 of the Civil Procedure Code to maintain a representative suit not only for a declaration of the invalidity of an improper alienation of the mutt properties by the head of the mutt, but also for a decree directing possession to be given to the head of the mutt for the time being.
This case was followed in Veeramachaneni Ramaswamy v. Soma Pitchayya, ILR Mad 410: AIR 1920 Mad 665. See also Rangaswami Naidu v. Krishnaswami Aiyar, (1923) 44 Mad LJ 116: AIR 1923 Mad 276 , where it was held that in the absence of a trustee or manager, it is open to the worshippers with the permission of the Court under Order 1, Rule 8. Civil Procedure Code to sue to recovery of possession of the properties belonging to the religious charity from a trespasser. The last ruling on which reliance is placed on behalf of the appellants is Subramania Ayyar v. Maya Kone, AIR 1940 Mad 81 in which Mr. Justice Patanjali Shastri, as he then was, decided that a suit by certain persons on behalf of all the villagers for a declaration that the suit property belonged to the temple in that village and that certain alienations thereof by the Pujaries were void and not binding on the institutions was maintainable apart from the provisions of Section 92 of the Civil Procedure Code.
Mr. Bobde has also relied on the observations of Sir Dinshah Mulla in his commentary on Section 92 of the Civil Procedure Code where the learned commentator has observed that suits against strangers to the trust, that is, against trespassers and against transferees from trustees, for a declaration that property in their hands is trust property and for possession are outside the scope of Section 92. All such suits must be instituted in the ordinary manner and not under Section 92. See Lukshmanas Parashram v. Ganpatrav Kishna, ILR Bom 365, Kazi Hassan v. Sagun Balkrishna, ILR Bom 170, Ghelabhai Gavrishankar v. Uderam Ichharam, ILR Bom 29 and Abdur Rahim v. Abu Mahomed Barkat Ali, 55 Ind App 96: AIR 1928 PC 16. In my opinion, the contention of Mr. Bobde must be accepted.
10. Mr. Kherdekar on the other hand relies on the decision of the Madras High Court in Vadlamudi Sastrulu v. Venkataseshyya, AIR 1928 Mad 614. In that case, it was held that although in the case of a temple, where the suit was to establish the right of the temple to the property in the hands of alienees, to recover the property and to have it restored to the trustee, it was maintainable under Order 1, Rule 8, yet where the temples have no proper trustee, any prayer to get the properties restored to the trustee would be a futile prayer without having a proper trustee appointed and a suit brought under Order 1, Rule 8, would not be maintainable, as a suit to get a proper trustee appointed must fall under Section 92.
According to that decision, a suit under Order 1, Rule 8 under these circumstances would really be a suit intended to evade the provisions of Section 92 of the Code of Civil Procedure. In that case the trustee of the temple did not support the plaintiffs but had contended that the temples were not public temples and that the deities in it were intended for the worship of the family exclusively and it was found as a fact that the temples were private temples. The Court held that it was the duty of the plaintiffs, assuming the temples were public, to get fresh trustees appointed which could be done only by way of a suit under Section 92 of the Civil Procedure Code.
In my opinion, this case is clearly distinguishable from the facts of the present case. Admittedly the members of the family of Narayandas were in management of this property and Bisandas, the son of Narayandas, was responsible for the creation of the mortgage, and it is the plaintiffs' case that mortgage was an invalid mortgage. But in execution of the decree on the mortgage the mortgagee, present defendant No. 1's father Kisan purchased the property and it went into his possession and after his death the present defendant No. 1 is in possession. The original managers are no longer in possession of the suit property. The plaintiffs also do not pray for the removal of the original namagers of the Math.
It is not disputed that none of the members of Narayandas's family have any kind of control over the suit property, and what the plaintiffs now seek is that defendant No. 1 should be declared to have no valid interest in the suit property, and the plaintiffs seek to recover possession of the property from defendants in favour of the entire Bairagi community.
11. Mr. Kherdar has also relied on a ruling of the Patna High Court in Kunj Behari v. Shyam Chand, : AIR1938Pat394 which holds that in the case of a public endowment, suits to recover a part of the trust property, which had been alienated by the shebait or lost in consequence of his action, can be instituted only by a shebait, and the only remedy which the members of the public have where the property has been alienated by a person who is a shebait for the time being, is to secure the removal of the shebait by proceedings under Section 92 Civil Procedure Code, and then to secure the appointment of another shebait who would then have authority to represent the idol in a suit to recover the idol's properties. As I have already pointed out, the plaintiffs do not seek the removal of the managers of the Math because it is not disputed that the suit property is not in the possession of the mangers at all.
It may be mentioned that according to Mayne's Treatise on Hindu Law and Usage (Eleventh Edition, p. 951) the dictum in, : AIR1938Pat394 that the remedy is by way of removal of the trustee is incorrect, though it is no doubt also stated there that the relief asked should be for possession to the trustee. But n this case, as I have already pointed out the plaintiffs are asking for possession of the property as representatives of the Bairagi community on the ground that the property belongs to the Vaishnava Bairagi Samaj, and they in effect seek that the property should be restored to the Bairagi community. In my opinion, therefore, the view of the lower appellate Court that the suit as framed is not maintainable is incorrect and must be set aside.
12. The only point, therefore,t eh remains to be considered is whether the plaintiffs and which of them should be awarded possession of the property. In this connection Mr. Bobde has produced a certified copy of an order of the Deputy Commissioner of Buldana dated 28-2-1955 which according to him shows that during the pendency of this appeal, one Laxmandas Premdas Bairagi of Deulgaon Raja applied to the Deputy Commissioner, Buldana, under the provisions of the M.P. Public Trusts Act No. XXX of 1951 for a declaration that the suit property was a public trust, and by his said order the Deputy Commission, Buldana, ordered the registration of the trust, in terms of the recommendations in the report of the Extra Assistant Commission, Khamgaon, in Revenue Case No. 122/72-D of 1953-54 and it would appear from that report annexed to the order that the trustees of the property are Shri Laxmandas, Premdas, Shri Mukhde Mannudas and Shri Sevadas Narayandas, and Shri Laxmandas Premdas has been mentioned in the report as a working trustee.
Now, Mr. Bobde states that two of trustees Shri Mukhde Mammudas and Shri Sevadas Narayandas are the present appellants Nos. 1 and 2 but the working trustee Laxmandas Premdas is nota party to this suit. Mr. Bobde contends that this order of the Deputy Commissioner would be final and conclusive under Section 7 of the M. P. Public Trusts Act, 1951, subject to the result of any civil suit that may have bene filed against that finding. Mr. Kherdekar has frankly informed me that he has no instructions in this matter.
It is well settled that a Court can take cognizance of events subsequent to the filing of a suit and mould its decree according to the circumstances existing at that time and an appellate Court would have the same power. Hanmant v. Secretary of State, 32 Bom LR 155: AIR 1930 Bom 254. It would appear that two of the plaintiffs in this suit are now declared to be the trustees of the suit property. If what Mr. Bobde states is correct, then, in my opinion, there should be no impediment in the way of the plaintiffs getting possession of the suit property provided they also bring on record the third trustee Laxmandas Premdas Bairagi who is shown to be the working trustee. The order for possession would have to be in favour of the three trustees.
13. Appeal allowed.