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Monmotho Nath Das Vs. Harish Chandra Das - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtKolkata
Decided On
Judge
Reported in(1906)ILR33Cal905
AppellantMonmotho Nath Das
RespondentHarish Chandra Das
Cases ReferredSajedur Raja v. Baidyanath Deb
Excerpt:
cause of action - suit by three persons on behalf of members of a sect--validity of--civil procedure code (xiv of 1882) sections 30 and 539. - .....though it does not being a mere rule of procedure) allow a person to sue on behalf of the general public. suits have thus been allowed by one or more persons on behalf of a sect, srinivasa chariar v. raghava chnriar (1897) i.l.r. 23 mad. 28, bhunput singh v. paresh nath singh (1893) i.l.r. 21 calc. 180, maharaj bahadur singh v. paresh kath, singh (1904) i.l.r. 31 calc. 839, ragava v. rajaratnam (1890) i.l.r. 14 mad. 57, baldeo bharthe v. bisgir (1900) i.l.r. 22 all. 269, a caste, ganapati ayyan v. savithri ammal (1897) i.l.r. 21 mad. 10, worshippers at a mosque, jan ali v. ramnath mandal (1881) i.l.r. 8 calc. 32, and fellow-villagers, haradhone bass v. ramdoydl rai (1890) i.l.r. 21 calc. 181, kalu khabir v. jan meah (1901) i.l.r. 29 calf. 100, jhanakoti v. muniappa (1885) i.l.r. 8 mad......
Judgment:

Rampini, J.

1. The appeal arises out of a suit, which the plaintiffs have brought on behalf of themselves and certain members of the Satchasi community of Chatra, to obtain a declaration of their right to take part in the management of the worship of the goddess Sitala celebrated at that village and to have joint possession with the defendants of two plots of land, on which the worship of the goddess is carried on.

The lower Appellate Court has given the plaintiffs a decree.

The defendants appeal.

The grounds of appeal urged before us are,

(1) that the suit is not maintainable under Section 30, Code of Civil Procedure;

(2) that the plaintiffs have not conformed to the requirements of Section 30,

(3) that there is defect of parties,

(4) that the Judge's finding is wrong on the facts,

(5) that the suit is barred by limitation,

(6) that the plaintiffs are estopped from questioning the exclusive right of worship of the defendants, and

(7) that the decree should have been limited to plot (1), the plot on which the house, in which the worship of the goddess is carried on, is situated.

2. These grounds of appeal seem to me to be very technical. The object of the appeal appears to me to call in question the finding of fact arrived at by the Subordinate Judge on the merits.

3. The first objection is that the suit should have been brought under Section 539 and that the provisions of Section 30 of the Civil Procedure Code are not applicable as the plaintiffs sue on behalf of the general public, whose number cannot be determined. This is not so. From the plaint it is clear that the plaintiffs are suing for themselves and for the members of the Satchasi community, a small and easily determinable body. In any case the suit is maintainable by the plaintiffs and it is doubtful if a decree has been given to any, but them. The requirements of Section 30 were fully complied with. Notices were served on 21 persons and notice was given to others by public advertisement.

4. There is no defect of parties. The persons, to whom possession was awarded in the case under Section 145 of the Criminal Procedure Code, have all been made parties.

5. The Judge's finding on the merits is a finding of fact and binds-us. There is no error, as far as I can see, in the way in which he has arrived at that finding. The point of limitation was not raised in the lower Appellate Court and the suit would not seem to be barred. The Judge evidently considers that the plaintiffs were only excluded to their knowledge from the worship of the goddess from the date of the order in the Section 145 case.

6. There appears to me to be no grounds for holding that the plaintiffs are estopped from questioning the defendants' right to exclusive management of the worship. There is nothing to show that the defendants to the knowledge of the plaintiffs ever claimed such a right. In the deed of sale of the 2nd plot, there is a clear admission that the worship of the goddess is being carried on by the defendants 'and others.'

7. The last ground of appeal need not be discussed on the view of the case I take. I would therefore dismiss this appeal with costs.

Woodroffe, J.

8. The pleadings are somewhat vague; but considering them broadly and with reference to the issues raised, the case for the plaintiffs and defendants respectively shortly stated, appears to be as follows: Both the plaintiffs and defendants are members of the Satchasi caste of Chatra. The plaintiffs say that some 70 years ago the caste secured the land in suit,, constructed a hut on it and established an image of Issur Sitla Debi. The management of the worship, which was defrayed by public subscription, was with the caste. From time to time certain members of the caste were heads of the management. The first of such heads was Subal Chandra Das, the grandfather of the first plaintiff, who inaugurated the worship with the aid of other members of his community. Subsequently other persons became sebaits, including the father of the first defendant. It being considered advisable to take a settlement of the lands, on which the idol stood, pottahs were taken from the landlord, in the names of the first defendant's father and his son Rakhal Chandra Das. These pottahs were taken for the benefit of the community interested in the worship of the idol. On the death of the father of the first defendant the latter also became Sebait.

9. The plaint alleges that the defendants claimed the right of management to the exclusion of the plaintiffs and all others. They are alleged also to have misappropriated the property of the deity. A dispute then took place, which resulted in criminal proceedings under Section 145 of the Criminal Procedure Code, as a result of which the Magistrate directed the defendants to hold possession of the lands and to supervise the worship of the deity. This suit was then instituted for a declaration that !he plaintiffs and all others of their caste were interested in the worship and that (as I read the plaint) they were entitled to joint management with the defendants. In substance the defence appears to have teen that the caste had no right or interest in the lands in suit or in the worship of the deity and that the land was the property of the first defendant or defendants (which is not clear), and that the worship was a private endowment.

10. In short the plaintiff alleged the existence of a public religious trust, of which the defendants were several of, but not the only trustees and that the latter had in breach of the trust misappropriated its monies and set up a title in themselves adverse to the trust.

11. The plaintiff might have, but did not ask for, removal of the trustees. What; they apparently sought and what they have been given is a decree declaring that 'the caste are interested in the worship of the deity, that such worship and the lands in suit are to be carried on and held as part of a public trust, in which the community are interested and that the plaintiffs are entitled to have joint management of the trust and joint possession of the lands of the trust with the defendants.

12. As in the case of the pleadings neither the judgments nor decree are quite as clear as they might have been, but what I hare stated appears to be the result of the litigation.

13. Though the point was taken in the Lower Courts it has not been argued before us that there is no cause of action. The objections taken with regard to Section 539 and Section 30 of the Code deal with matters of procedure only.

14. Undoubtedly this is a case of a public religious trust; not a trust for the public at large but for a portion of it answering a particular description, viz., the Satchasi caste of Chatra. With respect to the objection that therefore the suit should have been brought under Section 539 it is sufficient for me to refer to what I have said in the case of Budree Das Mukim v. Chooni Lal Johurry (1906) I.L.R. 33 Cale 789. In my judgment the matter was there fully considered. That judgment does not, as was suggested in the argument, proceed upon any distinction between cases arising within and without the Presidency Town. What I held is and was intended to be of general application.

15. I there held, as I hold now, that where a right of action exists (and tills is not disputed here) it is open in a case of this nature for two persons to sue with permission under Section 539 or for one or more persons to sue on behalf of the rest with permission under Section 30 or for all interested to join in suing. See Subbayya v. Krishna (1890) I.L.R. 14 Mad. 186, 209.

16. But then it is said that the provisions of Section 30 cannot be availed of because the words 'numerous parties' in that section mean it is argued on the authority of Sajedur Raja v. Baidya Nath Deb (1892) I.L.R. 20 Calc. 397, which referred to Adamsen v. Arumugam (1886) I.L.R. 9 Mad. 463, 406 parties capable of being ascertained and that is not the case with the members of the Satchasi community.

17. It was held in the Madras decision cited that this section does not allow one or more persons to sue on behalf of the general public, A damson v. Anumugam (1886) I.L.R. 9 Mad. 463, 406. It would be probably more correct to say that this is a section dealing with procedure and not affecting substantive rights of suit and that, as held in the case cited, under the substantive law no action can be maintainel by a private individual in respect of an infringement of the right of the general public, unless he has suffered special damage. As this section presupposes a right to sue, it gives none when there is otherwise none. In the case therefore of an infringement of a right of the general public no suit can be brought under this section or at all, unless on proof of special damage, in which case either one person sues in respect of the infringement of his individual right and the section does not apply, or if he should sue on behalf of others similarly specially injured he sues on their behalf and not on behalf of the general public. In the case relied on in the argument, Sajedur Raja v. Baidya Nnth Deb (1892) I.L.R. 20 Calc. 397, this Court went further, and referring to the decision of the Madras High Court, held that a suit could not be brought on behalf of the Hindu community generally as it was not capable of ascertainment, and that, inasmuch as the section required notice to be served upon all such parties the words 'numerous parties' meant parties capable of being ascertained. In the first place it is to be pointed out that the decision of the Madras High Court is not an authority for the principle so laid down. As was said by Sir Comer Petheram C.J. of the Mahomedan community, Jawahra v. Akbar Husain (1884) I.L.R. 7 All. 176, 182, even the whole Hindu community is not the general public, but only a particular portion, though it is a large one, of the general population of this country, which consists of individuals of numerous races and creeds. It would be sufficient to distinguish this case from that relied on, Sajedur Raja v. Baidya Nath Deb (1892) I.L.R. 20 Calc. 397, to point out that here there is no question of the whole Hindu community, but of a small fragment of it, viz., a particular caste in a particular village, were it not that it is further argued on the authority of the case cited that the parties must be capable of ascertainment as notice must go to each party. The provisions of the section with reference to public advertisement appear to have been overlooked. No doubt the section is often applied where the parties, though numerous, can be definitely ascertained as in the case of creditors, legatees and others. I am not however myself disposed to limit the section in the way stated in the case relied on nor are other decisions consistent with it. The consequences of so holding are stated in the judgment of the Munsiff, who on the authority of this decision has held that Section 30 did not apply. If the matter is looked at strictly it cannot be said that even in this case are all the parties capable of being ascertained, so that, as held in the decision of this Court, notices may be served on every one of them. An enquiry made for such a purpose could have no abiding result. While it was being made and after it had been made its subject matter would constantly be liable to change owing to deaths and births, new arrivals and departures of members of the caste. The Subordinate Judge was right in pointing out that such a strict view of the section would render it inapplicable in a large number of cases, in which it has been and may be invoked, though the Munsiff was right in his deduction of the logical results of the decision cited. If they be, as I think they are, the results of this decision, I am unable to agree with it and am in accord with the Madras decision, Adamson v. Arumugam (1886) I.L.R. 9 Mad. 463, which, though approved of, is not consistent with, the decision of this Court, on which the appellant relies, Sajedur Raja v. Baidyanath Deb (1892) I.L.R. 20 Calc. 397 viz., that this section is designed to allow one or more persons to represent a class of the general public having special interests, though it does not being a mere rule of procedure) allow a person to sue on behalf of the general public. Suits have thus been allowed by one or more persons on behalf of a sect, Srinivasa Chariar v. Raghava Chnriar (1897) I.L.R. 23 Mad. 28, Bhunput Singh v. Paresh Nath Singh (1893) I.L.R. 21 Calc. 180, Maharaj Bahadur Singh v. Paresh Kath, Singh (1904) I.L.R. 31 Calc. 839, Ragava v. Rajaratnam (1890) I.L.R. 14 Mad. 57, Baldeo Bharthe v. Bisgir (1900) I.L.R. 22 All. 269, a caste, Ganapati Ayyan v. Savithri Ammal (1897) I.L.R. 21 Mad. 10, worshippers at a mosque, Jan Ali v. Ramnath Mandal (1881) I.L.R. 8 Calc. 32, and fellow-villagers, Haradhone Bass v. Ramdoydl Rai (1890) I.L.R. 21 Calc. 181, Kalu Khabir v. Jan Meah (1901) I.L.R. 29 Calf. 100, Jhanakoti v. Muniappa (1885) I.L.R. 8 Mad. 496, 499, or class of villagers, Ahmedbhoy Habibhoy v. Balkriushna Mukund (1891) I.L.R. 19 Bom. 391, Bhimdal Panda v. Pandal Pas Patil (1887) I.L.R. 12 Bom. 221. All these cases are suits on behalf of a defined class, though that class is composed of a more or less 'indefinite number of persons' to use the language of the Court in Srinirasa Chariar v. Raghava Chariar (1897) I.L.R. 23 Mad. 28, 30. So two Brahmans have been permitted to sue to enforce a trust for the benefit of Brahmans generally of whatever kind or sect or place. Ganapati Ayyan v. Savithri Ammal (1897) I.L.R. 21 Mad. 10.

18. In my opinion the Satchasi sect of Chatra is a defined class of the general public and the suit has been properly instituted on their behalf under Section 30, whether all the members of such sect are or are not capable of being so accurately ascertained that notices could, if required, be served upon each and all of them. The petition under Section 30 in this case states that the members of the Satchasis of Chatra cannot be numbered.

19. It has been nextly argued that, if Section 30 is applicable, its requirements have not been followed. If, as appears to have been held in Sajedur Raja v. Baidyanath Deb (1892) I.L.R. 20 Cale. 397, all the parties should be capable of being ascertained so that service of notice may be made on all such parties, then there might be something in the arguments of the learned pleader for the appellant, for all the parties were not ascertained and the Munsiff states that the petition for leave under Section 30 stated that the Satchasis of Chatra could not be numbered or ascertained. As however I have stated, this, in my opinion, is not the meaning of the section. Personal service was made on certain important members of the caste, who were known to the plaintiff and by public advertisement in a newspaper or others. This I think was sufficient.

20. Nor do I think there was any defect of parties. The persons placed or retained in possession in the Criminal Proceedings were made defendants and as regards the others they are (if the suit is, as I hold it to be, a properly constituted representative suit) represented by the plaintiffs.

21. As regards the alleged estoppel arising out of the pott ah of the 15th Pous 1285, I think that the stipulation in the pottah that Panch Cowri Das was to be sebait, was inserted only for the purpose of the relation of landlord and tenant constituted thereby, it being convenient that the landlord should have some definite unchanging person to whom he might look for his rent. As however between the grantees of the pottah, who took as sebaits, and the other persons, who claim to be entitled to be sebaits, it did not confer any right on the former to management in exclusion of the latter.

22. Lastly as regards the two rooms on plot 1 on each side of that in which the image is situate. There is no ground of appeal, nor is the point here argued referred to in the judgment of the lower Court. There is a ground of appeal as regards plot 2, which it is argued is not the endowed property of the idol. No ground however has been made out for disturbing the finding of the lower Court on this point. Upon the question of limitation the judgment of the Munsiff shows that the defendant's possession was within 12 years. The point does not appear to have been argued before the Subordinate Judge. The allegations in the twelfth ground of appeal do not seem to be correct. I do not think that any question of limitation arises, whether the suit is regarded as one on behalf of the general public to enforce a public trust, or as brought by particular individuals to enforce a personal right to management of that trust.

23. I agree that the appeal should be dismissed with, costs.


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