S. Acharya, J.
1. Second Appeal No. 195/74 arises out of Title Appeal No. 101 of 1973 which was in respect of Title Suit No. 48 of 1966. The defendants in the suit have lost in both the courts below and have preferred this second appeal.
2. Second Appeal No. 196 of 1974 arises out of Title Appeal No. 96 of 1073 which relates to Title Suit No. 138 of 3969. In that suit the appellants in this appeal were the principal defendants. Besides them, there was another defendant (pro forma defendant No. 5) in that suit. In that suit the reliefs claimed were jointly on behalf of the plaintiffs and pro forma defendant No. 5. That suit was dismissed, and the plaintiffs preferred Title Appeal No. 96 of 3973 impleading pro forma defendant No. 5 as pro forma respondent No. 5 in the said appeal. Both Title Appeals Nos. 101/73 and 36/73 were disposed of by one judgment by the court below. So byorder No. 3 dated 28-8-74 passed in Second Appeal No. 196 of 1974 both these second appeals were ordered to be heard analogously. The suit lands and the basis of claim to the same in the two suits are different, and one was filed after three years of the filing of the other. After hearing the counsel appearing for both the parties I feel that I should better deal with each of the second appeals separately in this judgment.
Second Appeal No. 195 of 1974.
3. The defendants in Title Suit No. 58 of 1966, who have lost in both the courts below, have preferred this appeal.
The plaintiffs' suit (Title Suit No. 48/ 66) is for ejectment of the defendants (appellants herein) from the suit land, as described in the plaint, and for an injunction restraining the defendants from interfering with the possession of the plaintiffs over the suit land. The plaintiffs' case in short is that the suit land belonged to one Rani Dei and she made a gift of the suit land and some other properties, as per the registered gift deed Ext. 6, in favour of the deity Sri Fadhamohan Thakur. Nila Bewa, the mother of Rani Dei, who was originally the owner of the suit land, also executed a deed of relinquishment (Nadavi Patra) Ext. 7 in favour of the deity. The deity, represented by its marfatdar Mahanta Madan Mohan Das, sold the suit land along with some other lands to some of the ancestors of the plaintiffs for value by a registered sale deed dated 6-9-1943. From the date of the sale the ancestors of the plaintiffs were and after them the plaintiffs are in possession of the suit land. In July 1960 defendant No. 1 took the permission of the father of the plaintiffs to keep his (D. 1) cattle temporarily on the suit land. But after some time the defendants stealthily constructed a hutment on the suit land without the knowledge and consent of the plaintiffs Hence this suit.
5. The defendants' case in short is that the plaintiffs and/or their predecessors-in-interest never acquired any title to the suit land and they were never in possession of the suit land. According to the defendants the suit land belongs to their father and it is a part and parcel of their homestead, and they have all along been in possession of the same, They have also alternatively pleaded that they have perfected their title to the suit land by adverse possession.
6. The trial court decreed the plaintiffs' suit on the findings that they have acquired valid title to the suit land by purchasing the same from the deity as per the registered sale deed Ext, 5, and that they were in possession of the suit land within 12 years of the institution of the suit. The defendants' claim over the suit property was not accepted and they were directed to be evicted from the suit land.
7. The appeal preferred by the defendants against the decision of the trial court was dismissed. The appellate court also held that the plaintiffs had acquired valid title to the suit property and that they were in possession of the same. It further held that the defendants came to possess the suit land with the permission of the plaintiffs and as such they were liable to be evicted therefrom.
8. Mr. Mukherjee, the learned counsel for the appellants, urged that the deity had no title to the suit property as the gift of the suit property made by Rani Dei in favour of the deity was not valid and it did not confer any title to the suit property on the deity. In this connection Mr. Mukherjee contends that in this case there is no evidence of the ceremonies of Sankalpa and Samarpana of the property in favour of the deity which are essential for making a valid dedication, and that being so it is not established in this case that there was valid dedication of the suit property in favour of the deity. In support of his above submission he has cited the decision reported in AIR 1924 Pat 657 (Deo Saran v. Deoki). That decision nowhere states that in order to make valid dedication of property in favour of a deity one should establish that there were rituals or ceremonies of Sankalpa and Samarpana. The decision says that as per the Hindu Law the essential ingredients to constitute a gift, whether of moveable or of immoveable property, are Sankalpa and Samarpana whereby the property is completely given away fay the donor and he thereby completely divests himself of his ownership in the property in favour of the donee. It is nowhere said in that decision that there should be regular ceremonies and/ or rituals of Sankalpa and Samarpana for the purpose of making a valid dedication of the property in favour of the deity. In that decision it has been held that the essential ingredients formaking such a gift are that the donor should voluntarily and without consideration transfer the property to the donee, and the donor in giving away of the property must completely divest himself of the ownership of the property in favour of the donee. It is also held that registration of the gift deed, which is required under Section 123 of the T. P. Act, affects only the onus so far as the execution thereof is concerned, but will in itself be no proof of the real dedication of the property or the divesting of the ownership therein by the donor. The observations in the said decision were made in the context of the contention raised on behalf of the parties that the proof of the registered deed is conclusive as regards the creation of the trust and dedication of properties in favour of the deity, and that no subsequent act or conduct of the dedicator is admissible to show that there was no real dedication. While answering that question their Lordships have however reiterated the well settled law that a valid dedication of property in favour of a deity is established if it is shown that the donor intended to make a gift in favour of the deity and that he completely divested himself of the property in favour of the deity.
In paragraph 90 of the decision reported in AIR 1969 All 248 (Shanti Sarup v. R. S. Sabha) it has been held that in the case of religious endowments it is not at all necessary that any particular ceremony should be performed before the gift of endowment becomea valid and binding. It is held that the gift would be complete as soon as there is clear evidence to show that the donor intended to make a gift in favour of a charity and that he had divested himself of the property which he intended to make a gift of or to dedicate. In paragraph 94 of the same decision it has been held (at p. 266 of AIR All):--
'It is settled law that an endowment can validly be created in favour of an idol or temple without the performance of any particular ceremonies provided the settlor has clearly and unambiguously expressed his intention in that behalf, vide AIR 1957 SC 133, Jai Dayal v. Dewan Ram Saran Das; AIR 1938 Lah 686 and Deeplal v. Parashwanath Digamber Jain Vidyalaya Mahamantri Shri Gulabchand, AIR 1956 Raj 171.'
From the above decisions it is quite clear that in order to establish the validity of the gift it was not necessary forthe plaintiffs to adduce evidence that ceremonies of Sankalpa and Samarpana were held for that purpose. However, for the purpose of examining as to whether a valid gift was really made or not one has to see from the evidence on record as to whether the owner voluntarily transferred the property in favour of the deity without any consideration and completely divested himself of the ownership of the property in favour of the donee.
9. In this case the deed of gift Ext. 6 has been registered. The contents of the gift deed clearly show that the donor in transferring the property mentioned in that deed in favour of the deity completely divested herself of her ownership in the said property in favour of the deity. Very soon thereafter Nila Bewa, who was the original owner of the suit property, executed a deed of relinquishment (Ext. 7) in favour of the deity. In that deed it is stated that she had given the said property to Rani Dei, and she (Nila Bewa) had no right, title and interest in the same. It is also stated therein that the gift of the property made as per Ext. 6 by Rani Dei was a valid gift, and Nila Bewa had absolutely no objection to the same. It is further stated that if she still had any right, title and interest in the said properly she completely relinquished the same in favour of the deity by the said deed.
From the contents of Exts. 6 and 7 it is quite evident that Rani Dei, the donor of the property not only completely divested herself of her ownership in the suit property in favour of the deity but her mother, the original owner of the suit property, within a short time of the execution of Ext. 6 executed the deed of relinquishment (Ext. 7) in favour of the deity in order to allay any doubt whatsoever about the complete vesting of the property in the deity Ext. 6 is dated 18-4-31 and Ext. 7 is dated 3-7-31. There is nothing on record to indicate that Rani Dei or Nila Bewa ever raised any objection or did any such act which would indicate that they did not have the intention to completely divest themselves of their right, title and interest in the suit property in favour of the deity. None of the descendants-in-interest or any of their relations have ever indicated their objection in any form or manner against the said dedication. The suit property was sold to the plaintiffs as per Ext. 5 dated 6-9-43, that is after about 12 years of its dedication to the deity. The transfer of the said property and delivery of possession thereof in favour of the ancestors of the plaintiffs also indicate that the marfatdar of the deity had taken possession of the property from the donor at the time when the said gift was made. The defendants who contest the validity of the gift have not adduced any evidence to show that the deity was not in possession of the property.
The suit was instituted in the yea 1966; the evidence in the suit was recorded in January, 1973. Thus the institution of the suit was more than 30 years after the execution of the deed of gift in favour of the deity, and the recording of evidence was more than 40 years after the gift. The deed of gift (Ext. 6) and the deed of relinquishment (Ext. 7) have been filed in original in this suit by the plaintiffs. That indicates that after purchasing the property from the marfatdar of the deity, the vendees, i.e., the plaintiffs' ancestors, received possession of the relevant documents of title in respect of the suit land besides possession of the same. Ext. 12 shows that the marfatdar of the deity had instituted a suit against Bula Sahu, the ancestor of the defendants and another person for their forcibly taking possession of the suit land at one time. That suit was decreed in favour of the deity, the deity's title to the suit land was declared and the defendants were ordered to be evicted from the suit land. That also indicates that the marfatdars of the deity were taking steps to safeguard the right, title and interest of the deity in the suit property.
In that suit Rani Dei and Nila Bewa were impleaded as pro forma defendants, and they did not contest the suit. That also indicates that Rani Dei, the recorded owner of the suit land as seen from Ext. 15, and her mother Nila Bewa, the original owner of that property, did not contest the gift in favour of the deity.
From the above facts it becomes quite evident that the gift was made voluntarily by Rani Dei, the recorded owner of the property, and she and her mother, the previous owner of the property, completely divested themselves of their right, title and interest in the suit property in favour of the deity. On the above evidence on record and on the registered deed of gift Ext. 6 it is established that a valid gift of the suit property was made in favour of the deity.
10. Mr. Mukherjee further contended that the said Rani Dei and Nila Bewa became widows before the coming into effect of the Hindu Women's Right to Property Act, 1937, and so they did not have absolute ownership over the suit property and could not, therefore, make a valid gift of the absolute right and title in the said property in favour of the deity, and so the marfatdars of the deity could not make a valid transfer of the absolute ownership in the suit property in favour of the plaintiffs. From the impugned judgments it appears that this question was not raised in any of the courts below. No issue was framed on this topic. If the defendants wanted a decision on this question they should have asked for the framing of an issue, on that question so that evidence could have been adduced on this issue, A decision of that question would require consideration of various facts, and that issue cannot be decided by random reference to facts appearing here and there on record and without giving the opposite party an opportunity to explain those facts or to rebut the same. As no issue was sought to be framed on this question of fact, and as the plaintiffs did not have the opportunity to adduce evidence on this issue, this question cannot be allowed to be agitated and decided for the first time in this second appeal. Moreover, even on the vesting of limited ownership in the property on the deity and/or on the plaintiffs as alleged by Mr. Mukherjee, the defendants, in the facts and circumstances of this case do not get any better foothold in the suit property, especially in view of the concurrent finding of fact of both the courts below that the defendants did not have any right, title or interest in the suit land.
11. The findings and the conclusions of the court below are not challenged on any other ground. The findings of the two courts below have been arrived at on cogent and convincing discussion and consideration of the relevant evidence on record, and I do not see any reason to interfere with the same.
This appeal accordingly is dismissed with costs.
Second Appeal No. 196 of 1974.
12. The plaintiffs' case, in short, in Title Suit No. 138 of 1969, out of which this second appeal arises is that defendants 1 to 4 were in permissive possession of the suit land as specifically described in this case, and they, without the knowledge and permission of the plaintiffs, constructed a portion of a hutment on the suit land and did not remove the same in spite of repeated asking of the plaintiffs. According to the plaintiffs, the ancestors of the plaintiffs and that of pro forma defendant No. 5 purchased the suit land by a registered sale deed dated 4-9-43 executed by Bula Sahu, the husband of defendant No. 1 and father of defendants 2 to 4. Since that time the plaintiffs' predecessors-in-interest were and after them the plaintiffs are in possession of the suit land. In July 1960 defendants 1 to 4 took permission from the plaintiffs to tether their cattle temporarily on one portion of the suit land, but in December, 1960 they, without the permission and knowledge of the plaintiffs, constructed a hut, a portion of which encroached upon the suit land, and they did not remove the same in spite of repeated demands of the plaintiffs.
13. Defendants 1 and 2 only contested the suit. Defendants 3, 4 and 5 set ex parte in this suit.
14. The case put forward by defendants 1 and 2 in their joint written statement is that Bula Sahu never executed any sale deed in favour of the predecessors-in-interest of the plaintiffs and pro forma defendant No. 5, and they were never in possession of the same. Bula Sahu was a leper, and the deed under which the plaintiffs and defendant No. 5 claim title to the suit land was obtained by false personation and by practising fraud on the Sub-Registrar. The suit property is a part and parcel of the homestead property of defendants 1 to 4 and they are all along in possession of the same. Their alternative case is that they have acquired title to the suit property by adverse possession.
15. The trial court found that the plaintiffs' predecessors-in-interest acquired title to the suit property by purchasing the same from Bula Sahu as per the registered sale deed Ext. 1, and they and the plaintiffs were in possession of the same within 12 years of the suit. It also held that defendants 1 to 4 were in permissive possession of the same to keep their cattle thereon and hence were liable to be evicted therefrom bythe plaintiffs. But, it held, that as the cause of action of this suit is the same as the cause of action in the previous suit (T. S. No. 48/66) instituted by the plaintiffs against these defendants, this suit was hit by Order 2, Rule 2, C.P.C. On this consideration and conclusion it dismissed this suit.
16. The appellate court, while confirming all the findings of fact of the trial court, has held that this suit is not hit by Order 2, Rule 2, C.P.C. On the above findings it has decreed the plaintiffs' suit, declaring the plaintiffs' right, title and interest in the suit land and directing eviction of the defendants 1 to 4 therefrom.
17. Mr. Mukherjee, the learned counsel for the appellants, contends that the cause of action of this suit and that of T. S. No. 48/66, as stated in paragraph 7 of the plaints in both the suits, being exactly the same, this later suit of 1969 is hit by the provisions of Order 2, Rule 2, C.P.C. and hence is liable to be dismissed and was rightly dismissed by the trial court.
18. To make Rule 2 of Order 2 C.P.C. applicable two conditions must be satisfied, namely (1) that the previous and the present suit must arise out of the same cause of action, and (2) secondly they must be between the same parties. ((1966) 2 Andh WR 253, Suryanarayana Murti v. Chandramma Dhora). So where the plaintiff or the defendant in the subsequent suit is different from the plaintiff or the defendant in the previous suit, the rule does not apply. Defendant No. 5 in this suit was not a party in the previous suit (T. S. No. 48/66). Moreover, in order to make the provisions of Rule 2 of Order 2, C.P.C. applicable, the cause of action for the two suits must be the same, i.e. the facts of one which would entitle the plaintiff to the right claimed in the other must be the same. In determining whether the cause of action in both the suits are the same, it should not merely be similar, but it should be the same, i.e. one and identical with the previous one. ((1967) 8 Guj LR 677, Dhabubai v. Bai Ratan). Moreover, in order to apply Rule 2 of Order 2, C.P.C. it is necessary that facts which would entitle the plaintiff to the right claimed in both the suits must be the same. If, apart from what is required to be proved in the first case, some additional facts have to be proved in the second one it cannot be said that the two suits are based on the same cause of action. ((1966) 2 Andh WR 253). In that decision it has been observed that a rough test to ascertain as to whether the cause of action in the second suit is the same as that in the first suit is to see whether the same evidence will sustain both the suits.
In the cases reported in AIR 1949 PC 78 (Md. Khalil Khan v. Mahbub Ali Mian) and AIR 1964 Bom 42 (Dwaraka-das v. Vimal) it has been held that if the evidence to support the two claims is different, then the causes of action are also different.
19. The parties in this suit are not identically the same as those in Title Suit No. 48 of 1966. Pro forma defendant No. 5 in this suit was not a party in Title Suit No. 48/66. The suit land in this suit is Ac. 0.002 dec. in plot No. 109, whereas the suit land in Title Suit No. 48/66 is Ac. 0.033 out of plot No. 108, The plaintiffs' claim of title over the suit land in this suit is completely different from the basis on which they claim title to the suit land in Title Suit No. 48 of 66. To establish the right, title and interest in the two suit plots in the two suits the plaintiffs were required to and had to adduce distinctively separate evidence. The respective defence put forward by the contesting defendants in respect of the suit lands in the two suits had to be and was actually completely different sale deeds of two different dates. The vendees in the two sale deeds are different. In AIR 1940 Pat 76 (Sheokumar Singh v. Bechan Singh) it has been held that two sale deeds giving rise to distinct contracts between the parties will be considered to be distinct and separate cause of action.
On the above considerations it cannot be said that this suit is hit by the provisions of Order 2, Rule 2 C.P.C. merely because the averments in para. 7 of the plaints in both the suits are in the same language. The cause of action mentioned in that para refers to the time from which the right to sue accrued to the plaintiffs.
The court below on a consideration of the facts of these two suits and the law on the subject has arrived at the finding that this suit is not barred under Order 2, Rule 2 C.P.C. On a consideration of the distinctive features in the two suits and the law on the subject as stated above I am convinced that the said finding of the appellate court is perfectly correct and justified.
20. Mr. Mukherjee made a vain attempt to assail the concurrent findings of fact of both the courts below that Bula Sahu at the material time was capable to executing documents, and that Ext. 3, the sale deed in favour of the predecessors-in-interest of the plaintiffs and pro forma defendant No, 5 was validly executed by him, and that the plaintiffs and pro forma defendant No. 5 acquired valid title to the suit property thereunder. Both the courts below have arrived at the said findings on a cogent and convincing consideration and discussion of the evidence on record. Mr/Mukherjee could not show any convincing ground on which the said concurrent findings of fact could be assailed in this second appeal. I do not therefore attach any importance or weight to the submissions of Mr. Mukherjee in this connection.
21. The impugned judgment could not be assailed on any other ground.
22. I, therefore, do not see any merit in this appeal and it is accordingly dismissed with costs.
23. In the result, therefore, Second Appeal No. 195 of 1974 and. Second Appeal No. 196 of 1974 are dismissed with costs.