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Kundan Vs. Kanahya and ors. - Court Judgment

LegalCrystal Citation
SubjectLimitation
CourtHimachal Pradesh High Court
Decided On
Case NumberCivil Revn. No. 58 of 1952
Judge
Reported inAIR1953HP91
ActsCode of Civil Procedure (CPC) , 1908 - Section 115 - Order 6, Rule 2 - Order 41, Rule 22; ;Limitation Act, 1908 - Section 28 - Schedule - Article 124
AppellantKundan
RespondentKanahya and ors.
Appellant Advocate Tek Chand Chitkara, Adv.
Respondent Advocate Banna Lal Bahl, Adv.
DispositionRevision allowed
Cases ReferredVenkatagiri v. Hindu Religious Endowments Board
Excerpt:
.....- plaintiffs had no act on part in defendant-petitioner's removal from office and that removal was on account of petitioner's minority - defendant-petitioner himself deposed that he has been cultivating land belonging to idol and that in lieu of cultivation puja is performed - defendant-petitioner was partially in possession of office under explanation to article 124 by reason of his having throughout been in receipt of part of profits of that office - plaintiffs had not acquired right to hold office to exclusion of defendant-petitioner under article 124 and that defendant-petitioner's right to hold that office had not been extinguished under section 28 - nothing to show that when defendant-petitioner was restored to his lawful position as joint pujari with plaintiffs, plaintiffs were..........a. d. about the land were traversed.5. the trial court held that the office of pujari of the idol in question was a hereditary one, and did not go by election, that it was held jointly by the two families of the plaintiffs-respondents and the defendant-petitioner and that therefore the defendant-petitioner was entitled to hold the office jointly with the plaintiffs. it was also held that the defend-ant petitioner was a legitimate son cf ram nath. the plaintiffs were however granted the aforsaid perpetual injunction on the finding that the plaintiffs had acquired title to the hereditary office by adverse possession under art 124, limitation act and the defendant-petitioner's right to that office had there-fore been extinguished under section 28 of that act the trial court also.....
Judgment:
ORDER

Chowdhry, J.C.

1. The defendant-petitioner Kundan on the one hand and the plaintiffs-respondents Kanahya, Nand Ram, Shiv Lal and Man-gat Ram and the defendant respondent Daulat Ram on the other, are, rival claimants to the office of pujari of an idol known as the Deota Bathindlu installed in a temple in village Panjyali Sub-Tehsil Suni. Nika Ram and five other defendants are the kardars or managers of the temple, and the Deota has also been impleaded as a defendant.

2. The cause of action for this suit, instituted on 11-1-1950, was that about two years previously on 14th Jeth 2005 B. the kardars appointed the defendant-petitioner as pujari of the idol. The plaintiffs alleged that the kardars had no right to do so inasmuch as they (the plaintiffs) and the pro forma defendant Daulat Ram, brother of the plaintiffs Kanahya and Nand Ram, had the exclusive right to hold the office as hereditary pujaris and as the defendant-petitioner was an illegitimate son and therefore unfit to hold the office. The plaintiffs therefore prayed for an injunction perpetually to restrain the defendant-petitioner from officiating, and the six kardar defendants from permitting the defendant-petitioner to officiate, as pujari of the idol, and to restrain all of them from interfering with the plaintiff's right to perform the duties of the office.

3. There was also an alternative case set up by the plaintiffs-respondents. It was alleged that by an agreement dated 9-4-1924 A. D. between the plaintiffs and Zalim Singh, Tehsildar of the former State of Bhajji (within which the village in question is situate) the former were recognised and accepted as hereditary pujaris of the idol, and that in return for this recognition the plaintiffs, who were proprietors of land measuring 43 bighas and 2 biswas, described in the plaint, agreed to reduce themselves to the position of occupancy tenants of that land. The plaintiffs prayed that if the aforesaid relief relating to the office of pujari be not granted to them, it be declared that they are the proprietors of this land. The plaintiffs also prayed for recovery of mesne profits from the said date 14th Jeth 2005 B. till the date of their reinstatement.

4. Some of the kardars supported the plaintiffs and others the defendant-petitioner, who was the main contesting defendant. The defence plea was that the two families of the plaintiffs-respondents and the defendant-petitioner held the office jointly until the death of the defendant-petitioner's cousin Ram Saran, that when Ram Saran died the defendant-petitioner was a minor and his own brother Khayali officiated as priest of an idol in another village and that the plaintiffs therefore got an opportunity since then of exercising the right singly. It was further pleaded that by an unanimous decision the kardars and the, representatives of the public restored the defendant-petitioner on 14th Jeth 2005 B. to his rightful place as pujari of the idol which had been usurped by the plaintiffs. The plaint allegations with regard to the illegitimacy of the defendant-petitioner and the agreement dated 9-4-1924 A. D. about the land were traversed.

5. The trial Court held that the office of pujari of the idol in question was a hereditary one, and did not go by election, that it was held jointly by the two families of the plaintiffs-respondents and the defendant-petitioner and that therefore the defendant-petitioner was entitled to hold the office jointly with the plaintiffs. It was also held that the defend-ant petitioner was a legitimate son cf Ram Nath. The plaintiffs were however granted the aforsaid perpetual injunction on the finding that the plaintiffs had acquired title to the hereditary office by adverse possession under Art 124, Limitation Act and the defendant-petitioner's right to that office had there-fore been extinguished under Section 28 of that Act The trial Court also passed a preliminary decree declaring that the plaintiffs were entitled to mesne profits and directing an inquiry for determination of the same from 14th Jeth 2005 B. to the date of the institution of the suit. With regard to the alternative case of the plaintiffs, the trial Court held that the land belonged to the idol and the plaintiffs had failed to prove the alleged agreement.

6. The defendant Kundan appealed, but the learned District Judge dismissed his appeal on 8-4-1952. He agreed with the trial Court that the office in question was a hereditary one, and that it was held by the ancestors of the two families. He also upheld thei finding of the trial Court that the plaintiffs had acquired title to hold the office exclusively by adverse possession and the defendant-petitioner's right to that office had been extinguished. With regard to this finding it was urged before him on behalf of the defendant-appellant Kundan that it should not have been recorded in favour of the plaintiffs since there was no allegation in the plaint as to acquisition of title to the office by adverse possession and no issue on that point had been framed. This contention was repelled by the learned District Judge because he held that the finding was based on the admissions of the defendant Kundan himself and of his witnesses and he could not therefore be said to have been taken by surprise. Kundan defendant has now come up in revision to this Court against the judgment and decree of the learned District Judge.

7. Before I take up the ground put forward on behalf of the defendant-petitioner, I would dispose of a point raised by the learned counsel for the plaintiffs-respondents, namely, that the finding of the trial Court that the petitioner was a legitimate son of Ram Nath was not warranted. Of course, it is open to the learned counsel for the plaintiffs-respondents in this revision to support the decree passed by the Courts below on any ground decided against them on the analogy of Order 41, Rule 22, C. P. Code; but the same right existed in their favour in the lower appellate Court also and yet it was not availed of there. There is no discussion of it in the judgment of the learned District Judge, so that it would appear that the point was not raised in that Court on behalf of the plaintiffs. The plaintiffs-respondents will in the circumstance be deemed to have waived their objection, now pressed in revision, before the lower appellate Court. That being so, the point cannot now be allowed to be taken up in the present revision since the revision is directed, not against the judgment and decree of the trial Court but against those of the lower appellate Court.

It may further be stated that the ground on which the finding of the trial Court is assailed has also no force. It appears that the defendant-petitioner's mother was the wife of Ram Saran. The petitioner's case was that his mother remarried Ram Saran's father's first cousin Ram Nath, and that the petitioner was an offspring of this remarriage. The trial Courts examined a number of documents extending over a long period, the oral evidence produced by the parties and the admission of the plaintiffs as contained in the superscription of the plaint and arrived at the conclusion that although there was no direct evidence of remarriage the evidence proved that the petitioner was the son of Ram Nath. The contention of the learned counsel for the respondents was that the trial Court had arrived at the conclusion of the petitioner being the son of Ram Nath without recording any finding that his mother had remarried Ram Nath. From what has been stated above, however, such a contention is unsustainable. By stating that although there was no direct evidence of remarriage the petitioner appeared from the evidence on record to be the son of Ram Nath, the trial Court will be deemed impliedly to have held that the remarriage stood proved circumstantially. The finding of the trial Court that the defendant-petitioner was a legitimate son of Ram Nath cannot therefore be disturbed.

8. The ground put forward on behalf of the defendant-petitioner was the same as was unsuccessfully taken by him before the lower appellate Court, namely, that the trial Court was not justified in recording the finding that the plaintiffs had acquired title to the hereditary office in question by adverse possession without their having taken any such plea in their plaint and without any issue having been struck on the point. There can be no doubt about the correctness of both these allegations : the plaintiffs did not plead that they had acquired the right to hold the office in question exclusively by adverse possession, and there was no issue framed by the trial Court with regard to it. Both the Courts below have however recorded the finding in question on what they have interpreted as the admissions of the defendant-petitioner himself and his witnesses. For that reason it was held by the lower appellate Court that the defendant could not be said to have been taken by surprise, and that all that remained was to decide the legal effect of facts which stood admitted. The learned counsel for the plaintiffs-respondents supported this view of the lower appellate Court by citing the case of --'Nepen Bala Debi v. Siti-Kanta', 8 Ind Cas 41 (Cal) (A), in which it was observed as follows :

'Where no case of acquisition of title by adverse possession is made in the plaint nor is the question raised directly or indirectly in any of the issues, the plaintiff ought not to be allowed to succeed upon such a case. On the other hand, as pointed out by this Court in the case of --'Lilabati Misrain v. Bishun Chobey', 6 Cal LJ 621 at p. 635 (B), when the question reduces itself to one of law upon facts admitted or proved beyond controversy, it is not only competent to the Court but expedient in the interests of justice to entertain the plea of adverse possession if such a case arises on the facts stated in the plaint and the defendant is not taken by surprise. The true test, therefore, to be applied to determine whether the plea of title by adverse possession should be allowed, to be urged though not explicitly raised in the plaint, is, how far the defendant is likely to be prejudiced if the point is permitted to be taken.'

9. The basic principle of practice, as contained in Order 6, Rule 2, C. P. Code, is that every pleading shall contain a statement of the material facts on which the party pleading relies for his claim or defence, and, as observed by Lord Halsbury in ---'Sayad Muhammad v. Fatten Muhammad', 22 Ind App 4 (PC) (C), the sole object of every system of pleading is that each side may be fully alive to the questions that are about to be argued in order that they may have an opportunity of bringing forward such evidence as may be appropriate to the issues. If therefore a party is fully alive to the question that is to be argued on behalf of the opposite party by reason of the facts material to the determination of the question being admitted by him or proved beyond controversy, which, of course, means admitted and proved in such a way that the party against whom the question is argued cannot say that he has not had the opportunity of explaining the admission or of producing the necessary evidence, the basic object of pleading is fulfilled. When that is the case, a point may be argued though not pleaded and the party against whom it is argued cannot say that he is prejudiced thereby. The same is the rule contained in the aforesaid Calcutta ruling cited by the learned counsel for the plaintiffs-respondents. But as that rule forms an exception to the general law of pleading, the facts and circumstances ought necessarily to be minutely examined before it is applied to a particular case. In the present case, it is said that the necessary facts establishing acquisition of title to the hereditary office by the plaintiffs-respondents under Article 124, Limitation Act, stand admitted by the defendant-petitioner himself and his witnesses. It is therefore necessary to scrutinise these admissions carefully in order to see whether they establish beyond controversy the said acquisition of title by the plaintiffs.

10. It is common ground that in or about the year 1924 the defendant-petitioner's cousin Ram Saran, who held the office jointly with the plaintiffs, died, and that the defendant-petitioner was at that time a minor. It is also common ground that on account of his minority the defendant-petitioner was not allowed by the then manager of the temple on behalf of the State of Bhajji, named Laiq Ram, to perform the duties of the office for more than two months. Since then the defendant-petitioner did not perform, the duties of the office of the Pujari until he was restored to the office by the kardars on 14 Jeth 2005 B., i.e. for about 23 years. It is manifest therefore that the plaintiffs themselves had no art (act?) or part in the defendant-petitioner's removal from office, and that the removal was on account of the petitioner's minority.

It was argued by the learned counsel for the plaintiffs-respondents that the petitioner was removed from office on account of his illegitimacy. There- is however no proof or admission of that fact. There is also no admission or proof of any act of any of ths plaintiffs at any time during the said course of 23 years which could be construed as amounting to possession by them of the hereditary office in question adversely to the defendant-petitioner. That beting so, the observation of both the Courts below that the plaintiffs had ousted the defendant-petitioner from the office by an overt act Was wholly incorrect. Is there any thing in the so-called admissions of the defendant-petitioner or of his witnesses which leads to a contrary conclusion?. So far as the written statement of the defendant-petitioner is concerned, he pleaded there specifically that the plaintiffs got an opportunity of 'exercising the right singly (simply?) due to the petitioner's minority. True, he has described this act of the plaintiffs as usurpation, but if the facts and circumstances, as disclosed above, do not justify the inference in law that the plaintiffs' possession of the office was adverse to the defendant-petitioner at any point of time, the mere fact that the petitioner described it as usurpation would be quite immaterial. In his statement as a witness also all that the defendant-petitioner stated was that he was removed from office because of his minority. The two defence witnesses referred to in the judgments of the Courts below are Narain Das and Narainu. I have gone through the entire statement of the latter but found nothing there which could be interpreted as an admission on this point. The former again only stated that the petitioner was removed from office by Laiq Ram due to his minority. There is therefore nothing in the so-called admissions of the defendant-petitioner or of his witnesses which could by any stretch be interpreted as establishing acquisition of title to the office by the plaintiffs by adverse possession.

11. There is one other reason for holding that the plaintiffs had not acquired the right to hold the office in question to the exclusion of the defendant-petitioner under Article 124, Limitation Act. Under the Explanation to that Article, a hereditary office is possessed when the profits thereof are usually received, or (if there are no profits) when the duties thereof are usually performed. The profits of the office in the present case are of two kinds: offerings at the temple and land belonging to the idol held in lieu of performance of the office of pujari. The learned District Judge has held that since his removal from office in 1924 the defendant-petitioner received no share in the offerings of the temple. That is no doubt correct. But he is not correct in saying that the defendant-petitioner has been cultivating land belonging to the idol by way of begar and not in lieu of his office as pujari. The defendant-petitioner has himself deposed that he has been cultivating land belonging to the, idol, and that in lieu of cultivation the puja is performed. The argument of the learned counsel for the plaintiffs-respondents that the defendant did not say that he cultivated the land in lieu of puja makes no difference.

He then referred to the statement of the defence witness Amolak Ram where he deposed that those who carried the idol from one place to another had been granted land, but that does not mean that all those who cultivated land belonging to the idol performed this begar. There is nothing in the statement of this witness justifying the conclusion that land belonging to the idol was granted to none else but those who performed the begar. The learned counsel finally referred to the statement of the defence witness Ram Saran. This witness has however clearly stated that land is cultivated by both who serve the idol and do begar for it. In the former category will no doubt come 'pujaris. The aforesaid statement of the defendant-petitioner does not therefore stand/ rebutted by the admission of any of his witnesses. On the contrary, it finds corroboration in a former statement of the plaintiffs' own witness Nika Ram. This Nika Ram, it may be added, is one of the kardars of the idol. The statement in question was made by him in the year 1948 before the Executive Officer Suni. In that statement he clearly admitted that the defendant-petitioner cultivated the land in lieu of the service of puja.

That being so, even if the defendant-petitioner may not have performed the duties of the office during the said 23 years, he was partially in possession of the office under the Explanation to Article 124, Limitation Act, by reason of his having throughout been in receipt of part of the profits of that office. It may be that if there were a question of acquisition of title to the office by the defendant-petitioner by adverse possession, he would not have been entitled to succeed since he only received the profits but did not perform the duties of the office, but the plaintiffs cannot be said to have acquired the right adversely to the defendant-petitioner because, by reason of the defendant-petitioner having been in possession of the office partially in the aforesaid manner, they cannot be said to have ousted him completely from the office.

In the result, therefore, I hold, disagreeing with both the Courts below, that the plaintiffs had not acquired the right to hold the office in question to the exclusion of the defendant-petitioner under Article 124, Limitation Act, and that therefore the defendant-petitioner's 'right to hold that office had not been extinguished under Section 28 of the Act. The perpetual injunc- tion granted to the plaintiffs cannot therefore be allowed to stand. Nor is there any justification for granting to the plaintiffs a preliminary decree for mesne profits. There is nothing to show that when the defendant-petitioner was restored to his lawful position as a joint pujari with the plaintiffs the latter were removed from the office. It appears, on, the contrary, that the plaintiffs withdrew voluntarily as a protest against the defendant-petitioner's restoration,. In the circumstances, if they have received no profits since the defendant-petitioner's restoration they are themselves to blame. There is no allegation, much less proof, that the defendant-petitioner refused to let them have their share of the profits if they chose to exercise their right jointly with him. At the same time, I would not dismiss the plaintiffs' suit in toto, for that might be construed as a denial of their right to hold the office jointly with the defendant-petitioner.

12. Before I conclude, I must say that in view of what has been held above, it is clear that the Courts below have committed a material error of procedure affecting the ultimata decision of the case by deciding the question of limitatio.n as to extinguishment of the defendant-petitioner's right under Section 28, Limitation Act, in disregard of the established Principle of pleading, and that therefore this is a fit case for interference in revision. 'Venkatagiri v. Hindu Religious Endowments Board, Madras', AIR 1949 PC 156 (D).

13. There was an application: filed in this Court by Kama Ram and a number of other persons to be impleaded as parties. They profess to be the 'dashotaran' of the idol. This was too late a stage at which to make such an application. If their rights are in any way jeopardised by the result of this litigation, they may take such action as may be open to them according to law. The application was rejected.

14. The revision is allowed, the judgments and decrees of the two Court's below are set aside and it is hereby declared that the plaintiffs and the defendant-respondent Daulat Ram are entitled to hold the office of pujari of the, Deota Bhatindlu in question jointly with the defendant-petitioner. The defendant-petitioner will have his costs from the plaintiffs-respondents, and the plaintiffs-respondents will bear their own costs, throughout.


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