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Gopal Krishna Vs. Lal Kishan - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtAllahabad High Court
Decided On
Case NumberSecond Appeal No. 495 of 1975
Judge
Reported inAIR1978All48
ActsCode of Civil Procedure (CPC) , 1908 - Sections 92 - Order 20, Rule 1; Uttar Pradesh Zamindari Abolition and Land Reforms Act, 1951 - Sections 331(1A)
AppellantGopal Krishna
RespondentLal Kishan
Appellant AdvocateA.P. Tewari and ;G.C. Bhattacharya, Advs.
Respondent AdvocateS.P. Gupta and ;Beni Prasad Agrawal, Advs.
Excerpt:
.....not open to the lower appellate court to ientertain the objection to the maintainability of the suit in the civil court junless it was shown that there had been 'a .consequential failure of justice' due to the trial in the allegedly wrong forum. even if the defendant's objection to the non-maintain ability of the suit in the civil court on the ground that the necessary relief should have been claim-ed in a suit under section 229-b in the revenue court were correct, still, the lower appellate court should not have entertained the said objection unless it was satisfied that there had been a failure of justice due to the trial in the civil court and not in the revenue court. it is settled law that failure of justice is to be judged not on the basis of the findings recorded by the court..........to exist at shahpur and the plaintiff no. 1 is said to be the said deity installed in the said temple. plaintiffs nos. 2 to 6 reside in the said village and worsnip in the said temple. the deity sued through baba premanand whoclaimed to be the manager and pujari of the deity in the said temple. it was alleged that the defendant, shri lal kishan, was formerly managing the said temple end was the pujari of the same. he left managing the plaintiff no. 1 and kept some idols in his own residential house situated at chauma and began to claim that the old temple of the plaintiff no. 1 was at his residential place at chauma and not at shahpur. the plaintiff asserted that there was no temple at chauma and the deity really stood installed in the old temple at shahpur. the deity owned the land.....
Judgment:

M.P. Mehrotra, J.

1. This second appeal arises out of a suit for declaration, possession and for damages for use endoccupation.

2. The fiacts in brief are these : In the district of Agra in Tehsil Kiraoli there is village known as Chauma Shah-pur. The village is in two parts-- one is known as Chauma and the other is known as Shahpur. An old temple of Shri Gopal Krishna Bankey Behariji is said to exist at Shahpur and the plaintiff No. 1 is said to be the said deity installed in the said temple. Plaintiffs Nos. 2 to 6 reside in the said village and worsnip in the said temple. The deity sued through Baba Premanand whoclaimed to be the manager and pujari of the deity in the said temple. It was alleged that the defendant, Shri Lal Kishan, was formerly managing the said temple end was the pujari of the same. He left managing the plaintiff No. 1 and kept some idols in his own residential house situated at Chauma and began to claim that the old temple of the plaintiff No. 1 was at his residential place at Chauma and not at Shahpur. The plaintiff asserted that there was no temple at Chauma and the deity really stood installed in the old temple at Shahpur. The deity owned the land of Khata No. 64 situated in Shahpur Bandpura, detailed in Schedule A to the plaint and the defendant was formerly managing the said landed property in his capacity as the manager of the deity. Subsequently, he began to assert wrongly that the said landed property belonged to the alleged temple at Chauma. It was further claimed that the plaintiffs Nos. 2 to 6 raised subscription from the people of the village and carried out repairs to the old temple at Shahpur as the defendant had ceased to look after the said temple. It was further alleged that the defendant, even though called upon to do so, did not agree to manage the temple at Shahpur and to spend the income out of the plots of Khata No. 64 towards the Sewa Puja of the plaintiff No. 1. The defendant refused to deliver possession of the plots to the plaintiffs. It was further alleged that the Gram Samaj also passed a resolution for expunging the name of the defendant from the revenue records and for arranging for some other person to manage the temple of the plaintiff No. 1. A case was also instituted before the S.D.O. Kiraoli for the correction of papers but the same was dismissed on the ground that the controversy needed to be settled by a civil court. Hence, the plaintiffs instituted the suit in question. The plaintiffs claimed the following main reliefs :

(A) That it be declared the old temple of Shri Gopal Krishna Bankey Behariji is situated at Shahpur also known as Bandpura, Tehsil Kiraoli, District Agra, and the plots detailed in Schedule A to the plaint are attached and belong to the said idol.

(B) That a decree for possession over the plots detailed in Schedule A to the plaint be also passed in favour of the plaintiffs against the defendant.

(B1) That a decree for net profits or damages for use and occupation, futureand pendente lite at Rs. 2500/- P.A. be also passed against the defendant in favour of the plaintiff.'

3. The defendant contested the suit. He claimed that the old temple was really situated at Chauma and the alleged temple said to be situated at Shahpur was a new one. The deity was really installed in the temple at Chauma and the property in Khata No. 64 belonged to the deity installed in the temple at Chauma. The defendant claimed to be the pujari and garbarakar of the temple at Chauma. The other allegations in the plaint were also denied.

4. The trial court framed the necessary issues and tried the suit. The same was decreed for declarations, possession and mesne profits as claimed by the plaintiffs.

5. The defendant filed an appeal in the lower appellate court and the same was allowed. The judgment and decree of the trial court were set aside and the plaintiffs' suit was dismissed. The plaintiffs have now come up in the instant second appeal and in support of the same I have heard Shri G. C. Bhattacharya, learned counsel for the appellants. In opposition, learned counsel for the defendant-respondent has made his submissions. The lower appellate court held the suit to be not maintainable on two grounds. Firstly, it was held that it was barred by Section 92 C. P. C., and secondly, it was held to be barred by Section 331 of the U. P. Zamindari Abolition and Land Reforms Act, 1951. The said court has also stated in its judgment that the reliefs for possession and mesne profits were not pressed before it. Shri Bhattacharya sought to contend that the concession made in the lower appellate court was not binding on his client. Ground No. 21 in the grounds of appeal is as follows :--

'Because the concession made by the counsel for the appellant regarding relief of possession and mesne profit is not binding on the appellant as the same is contrary to law and without the consent of the appellant. Further such concession has no effect in law.'

6. In my view this contention is not correct. The Supreme Court in Bank of Bihar v. Mahabir Lal : [1964]1SCR842 , has clearly laid down as follows (at page 380) :

'In our opinion, where a statement appears in the judgment of a court that a particular thing happened or did nothappen before it, it ought not ordinarily to be permitted to be challenged by a party unless, of course, both the parties to the litigation agree that the statement is wrong, or the court itself admits that the statement is erroneous.'

It is true that a counsel's concession or an admission on the question of law may not be binding on his client but in the instant case it is not a concession on a pure question of law which is involved. Certain reliefs claimed in the plaint were not pressed before the lower appellate court by the counsel for the plaintiffs and, in my opinion, counsel must be held to have authority to act in the said manner on behalf of his client. In my view, therefore, it is not open to the learned counsel for the appellants to claim the reliefs for possession and mesne profits as the same must be deemed to have been given up in view of the statement contained in the judgment of the lower appellate court.

The only question, therefore, which remains to be considered is regarding the declaration which was sought in the suit. Shri Bhattacharya placed reliance on Biswanath v. Radha Ballabhji : [1967]2SCR618 , where it has been laid down as follows (at page 1046) :

'It is settled law that to invoke Section 92 of the Civil P. C., 3 conditions have to be satisfied, namely, (i) the trust is created for public purposes of a chari-teble or religious nature; (ii) there was a breach of trust or a direction of Court is necessary in the administration of such a trust; and (iii) the relief claimed is one or other of the reliefs enumerated therein. If any of the 3 conditions-is not satisfied, the suit falls outside the scope of the said section. A suit by an idol for a declaration of its title to property and for possession of the same from the defendant, who is in possession thereof under a void alienation, is not one of the reliefs found in Section 92 of the Civil P. C. That a suit for declaration that property belongs to a trust is held to fall outside the scope of Section 92 of the Civil P. C., by the Privy Council in Abdur Rahim v. Abu Mahomed Barkat AH. 55 Ind App 96 : (AIR 1928 PC 16), and by this Court in Pragdasji Guru Bhagwandasji v. Ishwarlalbhai Narsibhai, : [1952]1SCR513 , on the ground that e relief for declaration is not one of the reliefs enumerated in Section 92 of the Civil P. C. So too, for the same reason a suit for a declaration that certain properties belong to a trust andfor possession thereof from the alienee has also been held to be not covered by the provisions of Section 92 of the Civil P. C.; See Mukaremdas Mannudas Bairagi v. Chhagan Kisan Bhawasar : AIR1959Bom491 . Other decisions have reached the same result on a different ground, namely, that such a suit is one for the enforcement of a private right. It was held that a suit by an idol as a juristic person against persons who interfered unlawfully with the property of the idol was a suit for enforcement of its private right and was, therefore, not a suit to which Section 92 of the Civil P. C., applied : See Darshan Lal v. Shibji Mahsraj Birajman, ILR 45 All 215 : (AIR 1923 All 120); and Madhav-rao Anandrao v. Shri Omkareshvar Ghat, 31 Bom LR 192 : (AIR 1929 Bom 153). The present suit is filed by the idol for possession of its property from the person who is in illegal possession thereof and, therefore, it is a suit by the idol to enforce its private right. The suit also is for a declaration of the plaintiff's title and for possession thereof and is, therefore, not a suit for one of the reliefs mentioned in Section 92 of the Civil P. C. In either view, this is a suit outside the purview of Section 92 of the said Code and, therefore, the said section is not a bar to its maintainability.'

It was also held in the aforesaid case that when the Shebait acts adversely to the interest of the idol then even a worshipper can file a suit, 'the reason being that the idol is in the position of a minor and when the person representing it leaves it in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest. It is pragmatic, yet a legal solution to a difficult situation.' In the aforesaid case the Supreme Court followed itg earlier decision reported in : [1952]1SCR513 , Pragdasji Guru Bhagwandasji v. Ishwarlalbhai Narsibhai.

7. A reference may also he made to Periyaguruswamy v. Kaliamman (AIR 1971 Mad 278), where it was held that a suit by a worshipper representing idol for the recovery of its property from the alienee is maintainable even though the trustee continues in office.

8. Shri Bhattecharya has also placed reliance on Radha Kishunji v. Smt. Imarti (1972 All WR (HC) 98), where a learned single Judge laid down that a suit for the recovery of the temple pro-perty by the deity or the idol is not barred by Section 92 C. P. C.

9. The lower appellate court has in its judgment referred to two Supreme Court cases, namely, 1952 SCR 513, which is equivalent to : [1952]1SCR513 , and : [1972]2SCR492 , Harendranath Bhattacharya v. Keliram Das, where reliance has been placed on : [1952]1SCR513 . The lower appellate court has purported to distinguish the gaid authorities but, in my opinion, the distinction drawn is not correct. I do not think that the lower appellate court is right in thinking that a declaration could be claimed by the plaintiffs in a suit under Section 92 C. P. C., to the effect that the old temple of the idol was situated at Shahpur and not at Chauma, I do not think that any of the various clauses from (a) to (h) enumerated in Section 92 can be said to be applicable or attracted to a claim for euch a declaration. The lower appellate court has also relied on Ramrup Goshain v. Ramdhari Bhegat : AIR1925All683 , and has referred to certain other rulings such as Sangto v. Paras Ram (AIR 1919 All 203), Alagappa Chettiar v. Aruna-chalam Chetty : AIR1927Mad338 and Sarat K. Mitra v. Hem Ch. Dey : AIR1960Cal558 . But I do not think it necessary to allude to or distinguish these cases as, in my opinion, the law in this respect has been laid down with certainty by the aforesaid pronouncement of the Supreme Court and the same is bindingon all the courts in the country.

10. I may also mention that Shri G. C. Bhattacharya contended that the lower appellate court was not entitled to proceed on the assumption that the plaintiff No. 1 was a trust created for public purpose of charitable or religious nature. He contended that if the defendant wanted to raise the said plea then he should have shown as to who was the author of the trust and that Senkalp and Utsarg etc. had been made while installing the deity in the temple. In my opinion, this objection is not tenable. It was the plaintiffs' own case that the plaintiff No. 1 was an old ancient temple of the said deity and the plaintiffs Nos. 2 to 6 claimed to be the worshippers and etherwise also interested in the welfareof the said temple. In para 3 of the plaint it was stated as follows :

'That the idol of Shri Gopal Krishna Bankey Behariji is installed in the said temple and the plaintiffs No. 2 to 6 are its worshippers and are interested in the welfare of the said temple. Shri prema-nand is at present doing Sewa Pooja inthe said temple and is managing itsaffairs.'

Further in para 5 of the plaint it wasstated as under :

'That the said temple of the plaintiff No. 1 is very old one and it was previously managed and looked after by Shri Girwar Das and thereafter by his Chela Shri Hanna Das and their Samadhies also exist within the boundary of the said temple.'

In para 8 of the plaint referring to the claim of the defendant that the temple was at Chauma it was stated :

'That in fact there is no temple at Chauma. It is only a private worship place of the defendant which he has built simply to usurp the plots attached to the old temple of the plaintiff No. 1.'

In para 9 of the plaint it was stated that when the defendant failed to repair the old temple at Shahpur then the plaintiffs Nos. 2 to 6 raised subscription from the people of the village and carried out repairs. All these allegations clearly point to the fact that the endowment in question was not a private one but for the benefit of the public. It is obvious that the plaintiff's Nos. 2 to 6 could have no locus standi to maintain the suit if it were really a private endowment of a particular family. But their own allegations seem to suggest that the entire village was interested in the upkeep and welfare of the plaintiff No. 1. In this connection reference may be made to Deoki Nandan v. Murlidhar : [1956]1SCR756 , where it has been laid down as follows (at page 136) :

'The distinction between a private and a public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment. A religious endowment must, therefore, be held to be private or public according as the beneficiaries thereunder are specific persons or the general public or sections thereof.'

The lower appellate court has also observed in its judgment :

'In the present case existence of a public trust is admitted.'

I think that there can be no doubt that the plaintiff No. 1 can be said to be a trust created for public purpose of a religious nature within the meaning ofthe said expression as used in Section 92 C.P.C. In this connection the following passage from Mukherjea. The Hindu Law of Religious and Charitable Trust, 1952, Ed., page 414 is relevant :

'Thus to attract the operation of Section 92 of the Civil P, C., it is not necessary that a trust should exist in the English sense of the word or that there should be two estates or two ownerships, it is enough that there is obligation annexed to the property in favour of religious or charitable objects of a public nature and the person having the custody or management of the property is legally and not merely morally bound to carry on certain duties for which he is answerable in law.'

However, the point loses its importance in view of my finding that due to the relief of declaration claimed by the plaintiffs. Section 92 C. P. C., is not attracted.

11. The second ground on which the lower appellate court non suited the plaintiffs is the bar contained in Section 331 (1) of the U. P. Zamindari Abolition & Land Reforms Act, 1951. The said provision lays down as follows :

'Section 331. Cognizance of suits, etc. under this Act. (1) Except as provided by or under this Act no court other than a court mentioned in column 4 of Schedule II, shall, notwithstanding anything contained in the Civil P. C., 1908, take cognizance of any suit, application or proceeding mentioned in column 3 thereof.

Or of a suit, application or proceeding based on a cause of action in respect of which any relief could be obtained by means of any such suit or application :

Provided that where a declaration has been made under Section 143 in respect of any holding or part thereof, the provisions of Schedule II in so far as they relate to suits, applications or proceedings under Chapter VIII shall not apply to such holding or part thereof.

Explanation-- If the cause of action is one in respect of which relief may be granted by the revenue court, it is immaterial that the relief asked for from the civil Court may not be identical to that which the revenue court would have granted.'

The lower appellate court felt that the plaintiffs could get the necessary relief regarding declaration by filing a suit for declaration under Section 229-B of the aforesaid Act in the revenue court claiming e declaration that the idol was the bhumidhar or sirdar of the plots in ques-tion. The lower appellate court observed that while considering the question of granting the said declaration, the revenue court could decide whether the old temple existed at Shahpur or at Chauma. It was further held by the said court that possession could be claimed under Section 209 of the aforesaid Act.

12. In my opinion, the approach of the lower appellate court is not correct. It seems to me that the only controversy between the parties was whether the temple of the idol was at Shahpur or at Chauma. It was a common case of the parties that the idol was the owner of the property in dispute, but while the plaintiffs alleged that the idol was installed in the old temple at Shahpur, the defendant contested and said that the idol stood installed in the temple at Chauma. Both the parties thus accepted that the plots in question vested in the idol but they had their differences as to whether the idol or the deity stood installed in the temple at Shahpur or at Chauma. Such a dispute, in my opinion, is not contemplated to be decided in a suit under Section 229-B of the U. P. Zamindari Abolition & Land Reforms Act. It is purely a civil dispute which can be decided by the civil court alone. Moreover, the declaration was needed by the deity not only for the purpose of the plots in dispute but for other purposes also, for example, it is a matter of great consequence, apart from the possession of property, as to whether the real temple, an ancient one. happened to be situated at a particular place or not. Such a declaration has great significance for the worshippers and such significance is not to be viewed only in the context of a declaration in respect of certain plots. I, therefore, think that even if the plaintiffs could file a suit under Section 229-B for claiming a declaration in respect of the plots in question, still, from that fact alone they were not disentitled from claiming a separate declaration that the old temple of the idol was situated in Shahpur and not in Chauma. In my view, in the circumstances of the case, this should be held to be the principal relief involved in the suit and the other reliefs which have been claimed should be deemed to be subsidiary reliefs. It is clear that the eforesaid declaration simpliciter, unconnected with any particular rights to any agricultural plots, could only be granted by the civil court and not by the revenue court.

13. Moreover, there is another reason why I think that the lower appellate court was wrong in thinking that the civil court's jurisdiction was barred under Section 331 of the U. P. Act 1 of 1951. By the U. P. Land Laws (Amendment) Act, 1969 (U. P. Act 4 of 1969), Sub-section (1-A) had been added to Section 331. The added subsection runs as under :

' (1-A) Notwithstanding anything in Sub-section (1), an objection that the court mentioned in column 4 of Schedule II, or as the case may be, a civil court which had no jurisdiction with respect to the suit, application, or proceeding, exercised jurisdiction with respect thereto shall not be entertained by any appellate or revisional court unless the objection was taken in the court of first instance at the earliest possible opportunity and in all oases where issues are settled, at or before such settlement and unless there has been a consequent failure of justice.''

In view of the said provision it was not open to the lower appellate court to ientertain the objection to the maintainability of the suit in the civil court junless it was shown that there had been 'a .consequential failure of justice' due to the trial in the allegedly wrong forum. Even if the defendant's objection to the non-maintain ability of the suit in the civil court on the ground that the necessary relief should have been claim-ed in a suit under Section 229-B in the revenue court were correct, still, the lower appellate court should not have entertained the said objection unless it was satisfied that there had been a failure of justice due to the trial in the civil court and not in the revenue court. It is settled law that failure of justice is to be judged not on the basis of the findings recorded by the court but has to be decided apart from the correctness of the findings recorded. It has to be shown that a litigant has suffered detriment due to the trial in the wrong forum. In the facts of the instant case, the defendant did not show es to how the trial of the suit by the civil court caused any consequent failure of justice or detriment. In my opinion, therefore, the lower appellate court was wrong in nonsuiting the plaintiffs on the aforesaid two grounds. Hence, the judgment and decree of the lower appellate court is set aside. The plaintiff's suit shall stand decreed in reference to the declaration which has been claimed in the plaint. It is hereby declared that the old templeof Shri Gopal Krishna Bankey Behariji is situated at Shahpur also known as Bandpura, Tehsil Kiraoli in the district of Agra and the plots detailed in Schedule A to the plaint are attached and belong to the said idol. The suit shall stand dismissed for the other reliefs claimed. In the circumstances of the case, costs shall be easy throughout.


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