Kunwar Singh v. Thakurji Mahraj — 1992 DIGILAW 172 (ALL)

JUDGMENT S. K. Dhaon, J. 1. This is a defendant's Second Appeal. The trial court on 30th April, 1974 dismissed suit no. 60 of 1971 in which the plaintiff claimed the cancellation of a sale deed dated 27th May 1969 with respect to certain agricultural plots and also the delivery of the possession of the said plots after the ejectment of the defendants. The other usual reliefs were also claimed. The lower appellate court by its judgment and decree dated 3rd December, 1976 reversed the decree of the trial court and decreed the suit. 2. The material averments in the plaint are these. One Thakur Jodha Singh was the zamindar. He owned Sir land. During his life time he created a public trust by means of a registered waqf deed dated 24th September, 1934 whereby he endowed his sir land, which formed part of agricultural plots (hereinafter referred to as the plots in dispute; in favour of the plaintiff (Sri Thakurji Mahraj Birajman Mandir) for the maintenance and upkeep etc. of the temple and the Bhog expenses of the plaintiff The plots m dispute were recorded in the revenue papers as the sir of the plaintiff. During his life time Thakur Jodha Singh remained the Manager of the temple and thereafter amongst others Ganga Nandan Chela Bramha Nandan became the Manager. The plots in dispute were cultivated by the Managers on behalf of the plaintiff Preceding Baba Sant Ram Dass, the present Mahant and Sarbarkar of the plaintiff, Jagan Nath Dass was the Mahant and Sarbarkar of the plaintiff. On 27th May, 1969 Jagan Nath Dass executed a sale deed and transferred the pilots in dispute to the defendants for an alleged consideration of Rs. 30.000/-. The plots in dispute measured 33 bighas, 18 biswas and 10 biswansis. During the tenure of managership of Ganga Nandan, Jagan Nath Dass with the connivance of the Lekhpal got his name entered in the Khasra record On acquiring this knowledge, Ganga Nandan moved an application in the form of objection before the Sub Divisional Officer concerned under section 240 of the U. P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act) in compensation proceedings. This case was registered as case no. 157 of 1957 (Ganga Nandan v. Jagan Nath Dass). This case was registered as case no. 157 of 1957 (Ganga Nandan v. Jagan Nath Dass). In the said case, a compromise was arrived at on 21st December, 1957 in which Jagan Nath Dass admitted the title of the plaintiff. He agreed to manage the plots in dispute as the Manager of the temple without any right to sell or mortgage the same. This compromise was duly executed by the parties and was filed in the case. It was duly recorded and the proceedings were disposed of by an order dated 21st December 1957 in terms of the compromise. The said compromise was acted upon thereafter. Jagan Nath Dass continued to be the Mahant and Sarbarkar of the plaintiff from the date of the said compromise. After some time he became dishonest and manoeuvred to get the plots in dispute recorded in his personal name in the revenue records. He obtained a Bhumidhari Sanad with respect to the said plots and thereafter executed the impugned sale deed. On these facts coming to light the Hindu Public of the village concerned removed Jagan Nath Dass; from Mahantship and duly appointed Baba Sant Ram Dass as Mahant and. Sarbarkar of the plaintiff. Jagan Nath Dass died in January, 1971. The defendants filed a common written statement. In it, the material averments are these. Jagan Nath Dass was the Sirdar of the plots in dispute in his own right and he not only continued to be recorded as such but also continued to be in possession over the plots in dispute. The village where the plots in dispute were situated, was brought under consolidation operation and in those proceedings [he was recorded sirdar of the plots in dispute. He was also issued CH Form no. 45 and those proceedings became final. The plaintiff did not raise any objection in the consolidation proceedings The suit is, therefore barred under section 27 read with section 49 of the U. P. Consolidation of Holdings Act. Jagan Nath Dass was not the Sarbarakar or the Manager of the plaintiff. Jagan Nath Dass obtained bhumidhari sanad after depositing the necessary amount and after complying with the necessary formalities. Thereafter he executed the impugned sale deed and on its basis the defendants came in possession of the plots in dispute and they continued to be in possession. The Revenue Court alone had the jurisdiction to try the suit. Jagan Nath Dass obtained bhumidhari sanad after depositing the necessary amount and after complying with the necessary formalities. Thereafter he executed the impugned sale deed and on its basis the defendants came in possession of the plots in dispute and they continued to be in possession. The Revenue Court alone had the jurisdiction to try the suit. The plaintiff had neither any title over the plots in dispute nor was in possession over the same. The suit was barred by limitation. The rights, if any, of the plaintiff extinguished long back. Jagan Nath Dass, at no stage, accepted the title of the plaintiff in the proceedings under section 240 of the Act. Since Jagan Nath Dass was neither the Sarbarkar nor the Manager of the plaintiff, the question of his being removed from the possession of the plots in dispute did not arise. 3. The trial court framed a number of issues Its material findings are these. The Civil Court has the jurisdiction to try the suit. The suit can be instituted by the plaintiff through Sant Ram Dass even as a worshipper. The suit is not barred either by section 91 or order 1 rule 8 of Civil Procedure Code. The arrangement made in proceedings under section 240 that Jagan Nath Dass would be the Sarbarkar and the Manager of the temple was extraneous to proceedings under section 240 G and had no affect even otherwise, there was absolutely no evidence to show that Jagan Nath Dass acted as Sarbarkar of the plaintiff in pursuance of the compromise. Therefore, Jagan Nath Dass was never the Sarbarkar or the Manager of the plaintiff. The plaintiff stepped into the shoes of Thakur Jodha Singh and, therefore, became the owner of the plots in dispute. The plaintiff was recorded as Sir Malikan in 1359 Fasli i.e. immediately before the date of vesting or the abolition of zamindari. However, in the khataunis of 1356 Fasli and 1359 Fasli the name of Mahant Dhirma Dass was recorded as Dar Sikmi kastkar against the plots: in dispute. THEse entries show that Dhiram Dass was in possession of the plots in dispute. In the Khatauni of 1362 Fasli the plaintiff was recorded as the Bhumidhar against the plots in dispute. However, in the khataunis of 1356 Fasli and 1359 Fasli the name of Mahant Dhirma Dass was recorded as Dar Sikmi kastkar against the plots: in dispute. THEse entries show that Dhiram Dass was in possession of the plots in dispute. In the Khatauni of 1362 Fasli the plaintiff was recorded as the Bhumidhar against the plots in dispute. However, in column no 7 oft the said document, Mahant Dhiram Dass was ordered to be recorded as the Sirdar against the said plots on the basis of an order dated 10th May, 1936 passed by the Assistant Collector. This order was given effect to and the name of Mahant Dhiram Dass was recorded as sirdar. In 1356 Fasli there was an entry of Dhiram Dass as an occupant and, therefore he became an. adhiwasi under section 20 (b) of the Act. In proceedings taken under Chapter IXA of the Act the title of the plaintiff extinguished as it accepted compensation and Dhiram Dass was declared as the sirdar. Dhiram Dass died in the year 1955. He was the great grand Guru (Dada) of Jagan Nath Dass. The plaintiff having led no evidence to the contrary Jagan Nath Dass is to be accepted as the heir of Dhriam Dass and, therefore, upon the demise of Dhiram Dass he became the Sirdar of the plots in dispute. A deity cannot be regarded either as a minor or a physically infirm person as contemplated under the provisions of the Act. The disability, if at all, should be of the Sarbarkar of the. deity. There being no pleading or proof of any disability of any Sarbarkar, there was no impediment in the way of Dhiram Dass becoming an Adhivasi and thereafter a sirdar. The revenue entries in favour of Dhiram Dass and Jagan Nath Dass are not fictitious and are genuine. In proceedings under section 240 G Ganga Nandan got his objection dismissed and took compensation for the rights and interest of the plaintiff Jagan Nath Dass in those proceedings was treated as Sirdar. Even in consolidation proceedings Jagan Nath Dass was recorded as a sirdar and those ;proceedings having become final, the suit is barred by section 49 read with section 27 of the consolidation of Holdings Act. Jagan Nath Dass, therefore, legally transferred the plots in dispute after becoming bhumidhar of the same. Even in consolidation proceedings Jagan Nath Dass was recorded as a sirdar and those ;proceedings having become final, the suit is barred by section 49 read with section 27 of the consolidation of Holdings Act. Jagan Nath Dass, therefore, legally transferred the plots in dispute after becoming bhumidhar of the same. The defendant are bhumidhars in possession over the plots in dispute. The plaintiff was never in possession within twelve years from the date of the suit and, therefore, it is barred by limitation. 4. The findings recorded by the lower appellate court are these. The suit is maintainable at the instance of Sant Ram Dass. Dhiram Dass could not become an Adhiwasi within the meaning of section 20 (b) of the Act. Since he was also recorded in the khasra of 1359 Fasli and was, therefore, a person in cultivatory possession in 1359 Fasli year and he could acquire Adhiwasi right under section 30 (b) of the U. P. Land Reforms (Supplementary) Act, 1952. Jagan Nath Dass was not the chela of Dhiram Dass. After the demise of Dhiram Dass, Dhiram Dass left no chela and the name of Jagan Nath Dass was fictitiously recorded in his place even though he was not in possession over the plots in dispute. Kunwar Singh, one of the defendants, has admitted in his deposition that the plots in dispute were the personal property of Jagan Nath Dass and the same had no concern with the temple nor he was the Sarbarkar of the temple and that he used to live in Bareilly. He also admitted that Jagan Nath Dass is the chela of Narain Dass. The terms of the compromise as recorded in proceedings under section 240 of the Act were binding upon Jagan Nath Dass. Inspite of the rejection of the objection, there is no evidence that compensation was paid to Ganga Nandan. On account of the compromise entered into, Jagan Nath Dass had also given up his right and title, if any, in the plots in dispute. Since the compensation was not paid, hence a mere recital in the compromise that compensation shall pass to Ganga Nandan was of no avail. On account of the compromise entered into, Jagan Nath Dass had also given up his right and title, if any, in the plots in dispute. Since the compensation was not paid, hence a mere recital in the compromise that compensation shall pass to Ganga Nandan was of no avail. After the compromise the status of Jagan Nath Dass or Dhiram Dass prior to the date of compromise became immaterial as Jagan Nath Dass himself accepted to be acting as Mahant The giving up of his rights over the property and his acceptance to act as Mahant implies that he accepted the objection of Ganga Nandan; that, in fact, Dhiram Dass had started looking after the property at the instance of Ganga Nandan when he was sick and the entries by the Lekhpal in the revenue record were fictitious. In the absence of any evidence that compensation statement was prepared or compensation was paid to any party, it is clear that no compensation statement was prepared nor finalised as provided under section 240-K and hence Jagan Nath Dass was never declared a Bhumidhar or sirdar and, therefore, he had no right to obtain bhumidhari sanad Jagan Nath Dass could not wriggle out of the compromise. Jagan Nath Dass, so long as he remained the Mahant, could not claim any interest adverse to the plaintiff. Section 49 and section 27 of the U. P. Consolidation of Holdings Act could not be pressed into service by the defendants as Jagan Nath Dass got possession as trustee under the compromise in proceedings under section 240G of the Act and thereafter if his name continued in the revenue record, it shall be held that he held the property as a Mahant of the temple and he has no transferrable right therein. An admission is the best evidence and Jagan Nath Dass is bound by his admission made in the compromise in proceedings under section 240G, Jagan Nath Dass was neither the Adhiwasi nor the Sirdar. The defendants could not get any advantage of section 41 of the Transfer of Property Act The defendants are not transferees for full value. Since the property belonged to the temple, therefore, even if it is assumed that the defendants got possession from the date of the sales deed i.e. 27th May 1969, the suit filed on 25th February 1971 was within twelve years and, therefore, clearly within time. Since the property belonged to the temple, therefore, even if it is assumed that the defendants got possession from the date of the sales deed i.e. 27th May 1969, the suit filed on 25th February 1971 was within twelve years and, therefore, clearly within time. The lower appellate court has recorded a finding of fact that Jagan Nath Dass was not the Chela of Dhiram Dass. For doing so he has placed reliance on the testimony of DW 1, Kunwar Singh. We have to first consider the question as to whether JaganNath Dass was the chela of Dhiram Dass. In the plaint there is no reference at all to Dhiram Dass. In the written statement too there is no reference to Dhiram Dass Baba Sant Ram Das, PW 1, in his examination-in-chief does not make any reference to Dhiram Dass. In cross examination he states "I did not know Baba Dhiram Dass. Jagan Nath Dass was the chela of Marain Das but I did not know whose chela was Narain Dass. I am a Guru: Bhai of Narain Dass" and then states "I am the Guru Bhai of Jagan Nath Dass and Chela of Narain Dass " This witness, therefore, has not come out with the truth insofar as he states that "he did not know Dhiram Dass." He, however, admits that Jagan Nath Dass was the Chela of Narain Dass. DW 1, Kunwar Singh in his examination-in-chief states" Jagan Nath Dass was the chela of Narain Dass. Narain Dass was probably the Chela of Bijrang Dass Jagan Nath Dass got the property from his guru Dada Dhiram Dass. On a query by the witness from Jagan Nath Dass about Dhiram Dass, the witness was told by Jagan Nath Dass that his Guru Dada was Dhiram Dass It is thus evident that the defendants failed to produce any reliable evidence to establish that Jagan Nath Dass was the Chela of Dhiram Dass. The lower appellate court had the jurisdiction to appreciate the evidence of DW 1. It bad done so. I find no reason to disagree with its appraisement of the testimony of this witness. The lower appellate court had the jurisdiction to appreciate the evidence of DW 1. It bad done so. I find no reason to disagree with its appraisement of the testimony of this witness. It follows that [the period of limitation of filing a suit against Dhiram Dass by the plaintiff cannot be lagged with the period of limitation within which a suit could be instituted by the plaintiff as against Jagan Nath Dass or his successor-in-interest I, therefore, uphold the finding of the lower appellate court that the suit had been filed well within time. 5. I may now turn to the compromise recorded in the proceedings under section 240G of the Act. The lower appellate court has translated the terms from Hindi into English. They are these : "It is humbly submitted that parties have compromised. Ganga Nandan will have no objection if his case is rejected and if compensation is paid to Ganga Nandan in terms of the compromise as follows : 1. That Baba Jagannath Das will look after and manage the cultivation of the entire land, but would have no right to sell or mortgage it. 2. That the entire income of cultivation shall be spent on the necessary expenses of the temple of Sri Raghunath Ji situated in Mauza Gauntia Dhamipur, Tehsil Nawabganj by Baba Jagannath Das and he shall properly look after and manage the temple in the capacity of its Mahant. 3. That Baba Ganga Nandan, the erstwhile Sarvarkar of the temple, would not object in the management and the Mahantship of Baba Jagannath Das would have full control and right to manage the temple affairs. 4. That the expenses of food and clothes of Sri Ganga Nandan would be the responsibility of Baba Jagannath Das and it would be his duty to see that in his old age Baba Ganga Nandan is not put to any trouble and is properly looked after during his sickness etc. 5. That the public of Mauza Gauntia Dhamipur have the right to lawfully remove the Mahant and Sarvarkar in case of any mismanagement of the temple etc. by them." 6. Two features are significant in the terms of the compromise afore- quoted. 5. That the public of Mauza Gauntia Dhamipur have the right to lawfully remove the Mahant and Sarvarkar in case of any mismanagement of the temple etc. by them." 6. Two features are significant in the terms of the compromise afore- quoted. The first is that Ganga Nandan will have no objection if compensation is paid to him in terms of the compromise and thereafter the terms of the compromise follow; It is evident that in the recital preceding the terms of the compromise Ganga Nandan agreed not to press his objection and also agreed to receive compensation only if Jagannath Dass was to abide by the terms of the compromise which followed. The trial court, as already stated, has recorded that compensation was received by Ganga Nand3n while this lower appellate court has recorded that there is no evidence that compensation was, in fact, paid to or received by Ganga Nandan. No material has been placed before me on behalf of the appellants that, in fact, compensation was paid to Ganga Nandan and received by Ganga Nandan. The finding of fact recorded by the lower appellate court that no compensation pissed to and was received by Ganga Nandan cannot be interfered with. 7. It is immaterial as to whether Jagannath Dass divested himself of the plots in dispute and vested the same in the plaintiff (deity) because he with his eyes open, agreed that he would have no right to sell or mortgage the plots in dispute. The condition no. 2 also is significant as it provides that the entire income from cultivation shall be spent on the necessary expenses of the temple of Sri Raghunath Ji situated in Mauza Gautia Dhamipur Tehsil Nawabganj by, Baba Jagannath Das and he shall properly look after and manage the temple in the capacity as Mahant. The emphasis is to be laid on the condition that the income from the cultivation of the plots in dispute shall be spent on the necessary expenses of the temple. Nothing will turn in favour of the defendant-appellants even if the argument of their learned counsel is accepted that Jagannath Das could not be appointed as Mahant by Ganga Nandan as he had no right to do so under the terms of the endowment. 8. Nothing will turn in favour of the defendant-appellants even if the argument of their learned counsel is accepted that Jagannath Das could not be appointed as Mahant by Ganga Nandan as he had no right to do so under the terms of the endowment. 8. I may, at this stage, deal with the argument as to whether the rights of the plaintiff in the plots in depute extinguished on account of the proceedings taken under section 240-G. [ may note that in the written statement the existence of the proceedings under section 240-G themselves have been denied. There is no material on record that the requirement of section 240-J of the Act was complied with. There is no evidence that Form No 101 in accordance with rule 193 (b) as framed under the Act was ever prepared There is no evidence of compensation assessment roll being prepared, signed and sealed. Finality to the proceedings and the extinguishment of the right of the land holder are envisaged in the scheme of Chapter IX A only upon the preparation of compensation assessment roll, signing of the same and sealing of the same. This aspect has been emphasised in paragraph 11 of the Full Bench decision of this Court in Avdesh Singh v. Bikarma Ahir, AIR 1976 All. 324. Therefore the appellants can not take any advantage of the fact thari the objection of Ganga Nandan that Jagan Nath Dass should not be treated as the Sirdar was dismissed in proceedings under section 240-G It follows that the question as to whether Jagan Nath Dass really acquired the rights of a Sirdar cannot only be raised but also gone into in collateral proceedings before a competent court. I now come to the proceedings under the U. P. Consolidation of Holdings Act. Under the compromise: aforementioned, Jagan Nath Dass, in any view of the matter became a defacto Mahant Even entry in the C H. From No 45 is to the effect "Mahant Jagannath Dass Chela of.." while examining an entry one has to concentrate on its substance rather than on its from The substance of the entry, in my opinion is that Jagan Nath Dass was not to be recognised as the sirdar in his individual capacity but in his capacity as Chela of Mahant the Mahant of the plaintiff. Further more, if Jagannath Dass himself was the defacto Mahant no one else except he alone could file an objection against an entry. In Karbalai Begum v. Mohd. Sayeed, AIR 1981 SC 77 , the material facts were these. The parties were co-sharers. The plaintiff had established a case that the defendants had practised a fraud on her by giving her an assurance that her share would be properly looked after by them and on this definite undertaking she left the entire management of the property on the defendants who used to manage it. It was held that a suit by a co-sharer to challenge deletion of her name in joint khewat in Consolidation proceedings on ground, of fraud of co-sharer in possession is not barred by section 49 of the U. P. Consolidation of Holdings Act. The principle underlying the said decision is apposite to the facts of the present case Jagan Nath Dass having accepted to be a defacto Mahant could not take advantage of section 49 read with 27 of the U. P. Consolidation of Holdings Act. if a suit had been instituted during his life time by the plaintiff for the cancellation of the entries made in the consolidation records. Therefore, the appellants, who are successors-in-interest, too cannot plead the bar of the aforesaid provision. 9. I now come to the applicability of section 41 of the Transfer of Property Act, The argument is that, in any view of the matter, the appellants are bonafide transferees for valuable consideration. The following conditions are necessary for application of section 41 : (1) The transferer is the ostensible owner. (2) He is so by the consent, express or implied, of the real owner. (3) The transfer is for consideration. (4) The transferee has acted in good faith, taking reasonable care to ascertain that the transferer had power to transfer. In the present case the second ingredient has importance. The estansible owner is Jagan Nath Dass. The real owner is the deity (the plaintiff). The question is ; Can a deity give its consent either express or implied ? (4) The transferee has acted in good faith, taking reasonable care to ascertain that the transferer had power to transfer. In the present case the second ingredient has importance. The estansible owner is Jagan Nath Dass. The real owner is the deity (the plaintiff). The question is ; Can a deity give its consent either express or implied ? In the Hindu Law of Religious and Charitable trusts by B. K. Mukherjee, 1952 Edition p. 162, the following is quoted from a decision of the Judicial committee in the case of Pramatha Nath v. Pradyumna Kumar, 52 Indian Appeals p. 245 250 "A Hindu idol is, according to long established authority, founded upon the religious customs of the Hindus, and the recognition thereof by courts of law, a 'juristic entity' it has a juridical status with the power of sueing and being sued. Its interest are attended to by the person who has the deity in his charge and who in law is its manager, with all the powers which would, in such circumstances, on analogy, be given to the manager of the estate of an infact heir. It is unnecessary to quote the authorities, for this doctrine, thus simply stated, is firmly established." In Bishwanath v. Thakur Radha Ballabhji, AIR 1967 SC 1044 , in paragraph 10, it is observed that an idol is in the position of a minor. It is thus clear that if a minor is incapable of signifying its consent by any representation or act or conduct, similar will be the position in the case of an idol or a deity In Thakur Kirshna Chandramajui v Kanhayalal, AIR 1961 All, 206 a Division Bench of this Court held that it was not possible for the idol, which was not a sentient to allow or not to allow the mortgagor, a Shebait, to act as ostensible owner. I, therefore, hold that the appellants cannot derive any advantage from section 41 of the Transfer of Property Act. 10. Now I come to the last argument, namely, the Civil Court had no jurisdiction to entertain the suit as the principal relief claimed is for the possession of agricultural land after dispossessing the defendants. Section 331 (1-A) of the Act is a complete answer. 10. Now I come to the last argument, namely, the Civil Court had no jurisdiction to entertain the suit as the principal relief claimed is for the possession of agricultural land after dispossessing the defendants. Section 331 (1-A) of the Act is a complete answer. It emphasises that before an appellate or revisional court entertains the objection of jurisdiction it has to be satisfied by the party making the grievance that there has been a failure of justice Nothing has been shown by the appellants which may even remotely suggest that they have been in any manner prejudiced by the trial of the suit by a competent Civil Court rather than a Revenue court. No occasion has, therefore, arisen of failure of justice. It is trite that a plaintiff can succeed on the strength of his own case and not on the weakness of the defendants' case. I have, therefore, to examine the title of the plaintiff The lower appellate court has taken the view that Dhiram Dass did not acquire the rights of an Adhivasi on account of the operation of the provisions contained in section 20 (b) of the Act. This finding has not been assailed by title learned counsel for the appellants. The lower appellate court has, however,, taken the view that since the name of Dhiram Dass was recorded in 1359 Fasli he became an Adhivasi. In my opinion, learned Judge failed to appreciate the import of section 3. A person claiming the benefit of section 3 must establish that he was in cultivatory possession during the year 1359 Fasli and his cultivatory possession must be lawful and for the whole year 1359 Fasli. A trespasser even though in cultivatory possession will not be entitled to derive any benefit from the said provision. See Smt. Sonawati v. Sri Ram, AIR 1968 SC 466 . There is no evidence on record to suggest that Dhiram Dass was in cultivatory possession during the year 1359 Fasli Again there is no evidence whatsoever to show that the possession of Dhiram Dass was a lawful one. Therefore, Dhiram Dass could not acquire any rights on the basis of an entry in his favour of the year 1359 Fasli. It follows that as against Dhiram Dass the title of the plaintiff remained intact. 11. There is another aspect of the matter. Therefore, Dhiram Dass could not acquire any rights on the basis of an entry in his favour of the year 1359 Fasli. It follows that as against Dhiram Dass the title of the plaintiff remained intact. 11. There is another aspect of the matter. It is no body's case that Dhiram Dass had left any heir within the meaning of section 171 of the Act. I have already upheld the finding of the lower appellate court that Jagan Nath Dass was not the Chela of Dhiram Dass. Therefore, the rights of Dhiram Dass, if any, as a tenure holder extinguished upon his death. 12. This appeal fails and is dismissed but without any order as to costs. Petition dismissed.