Mahabir Singh vs Baba Krishan Gir Chela Baba Diwangir Mehant

Jawahar Lal Gupta, J.—This judgment will dispose of Regular First Appeal No. 988 of 1981 and Regular Second Appeal No. 2403 of 1986 as the facts and issues involved in these two cases are identical. A few facts may be noticed.

Dera Asan situate in village Narnaund is an Institution established by Gir Gosain Sadhus and Sanyasis. It is stated to have been established more than a century ago and is managed and administered by a Mahant belonging to the sect. It is claimed to be a public, religious and charitable institution which is in ''the nature and character of a public trust''. It had certain properties. It owned land measuring 110 Kanals and 10 Marlas as also an Ambassador Car No. HRB5484. Feeling that the affairs of the Dera were not being properly managed by Baba Bir Gir, Baba Krishan Gir along with eight other persons instituted a suit under Section 92 of the Code of Civil Procedure, in which it was interalia prayed that "a decree for the removal of Baba Bir Gir Defendant from the office of Mahant of Dera Asan situated in village Narnaund, tehsil Hansi, District Hissar and for the appointment of Baba Bajgir plaintiff No. 2 or any other person whom this Hon''ble Court may deem fit and suitable for the office of Mahant of the above mentioned Dera Asan and also for the delivery of the property mentioned in Annexure A belonging to the Dera Asan to the newly appointed Mahant and also for rendition of account of the Dera and also for settling a scheme for the purpose of proper administration and management of the said Dera may kindly be passed in favour of the plaintiffs and against the defendants with costs." This suit was instituted on October 19, 1978. The learned District Judge, who tried this suit, had framed the following issues :

(1) Whether the Dera Asan is a public, religious and charitable institution and has the character and nature of public Trust ? OPP

(2) Whether the land in dispute measuring 110 Kanals 10 Marlas is a Dolhi property, if so, to what effect ? OPP

(3) Whether Baba Tehalgir inherited the property in dispute subject to the limitation as mentioned in para No. 8 of the plaint, if so whether his successorininterest are bound by those limitations ? OPP.

(4) Whether the revenue entries showing the defendant and his predecessorsininterests as Morusi and thereafter as owners are wrong, illegal and not binding on the plaintiffs ?

(5) Whether the defendant has misconducted himself as alleged in para No. 11A to 11F of the plaint ? OPP.

(6) Whether the suit is barred by limitation ? OPD

(7) Whether the suit is not maintainable in the present form ? OPD

(8) Whether the plaintiffs are estopped by their acts and conduct from filing the present suit ?

(9) Whether the plaintiffs have no locus standi to file the present suit ?

(10) Whether the plaintiffs have no cause of action to file the present suit ? OPD

(11) Whether the suit has not been properly valued for the purposes of court fee ? OPD

(12) Relief.

Findings on all the above issues, except Issue No. 6, were given in favour of the said plaintiffs. On issue No. 6, it was held that the suit was barred by limitation. As a result the suit was dismissed. Against the judgment, Regular First Appeal No. 1130 of 1979 was filed. This appeal was decided on May 28, 1980. The finding recorded by the learned trial Court was reversed. It was held that the suit was within limitation. As a result the case was remanded "to the trial Court for the limited purpose of determining the actual relief to be given to the plaintiffs and for framing the scheme of management of the Dera in accordance with the provisions of section 92 of the Code of Civil Procedure,.... " Letter Patent Appeal No. 603 of 1980 filed against this judgment was dismissed on November 3, 1980. The trial Court on remand decided the case on April 22, 1981. It decreed the suit. Defendant Baba Birgir was ordered to be removed from the Mahantship of the Dera and divested of all the properties belonging to the Dera. He was directed to deliver possession of the immovable and movable properties, including the car, which was in his possession. Mahant Om Narain Gir was appointed as the Mahant and a committee was constituted for the management of the Dera. Various other provisions regulating the management and the affairs of the dera were also made. This was calculated to ensure that the assets were not frittered away and were utilised for the purpose for which they had been actually dedicated. Aggrieved by the decision of the learned Trial Court, Baba Birgir has filed Regular First Appeal No. 988 of 1981.

Baba Birgir had executed two separate sale deeds involving land measuring 104 Kanals and 10 Marlas in favour of Mahabir Singh son of Tek Ram and Dr. Raj Singh Malik respectively. So far as land sold to Dr. Raj Singh Malik was concerned, the trust was able to salvage it. However, having not succeeded in getting the land back from Mahabir Singh, the nine persons who had instituted the suit under section 92, filed a suit on November 21, 1978 for possession of agricultural land measuring 52 kanals and 6 marlas and for a declaration to the effect that the sale deed registered on April 17, 1978 which had been executed by Baba Birgir in favour of Mahabir Singh was illegal, null and void and not binding on the Dera Asan. Originally both the sales were challenged. However, since the land sold to Dr. Raj Singh Malik had been salvaged, it is not necessary to refer to the facts in that behalf. This suit was decreed by the learned trial Court. No appeal was filed by Mahabir Singh. This appeal was dismissed by the learned Lower Appellate Court. Aggrieved by the judgment and decree passed by the Courts below, Mahabir Singh has come in second appeal, viz. Regular Second Appeal No. 2403 of 1986.

Another facts which deserves notice is that the above mentioned suit for possession had been initially instituted on behalf of the nine persons, who had filed the suit under Section 92. In the year 1979, an application was made for impleading Dera Asan as one of the plaintiff This application was rejected. In the year 1981, Om Narain Gir was appointed as a Mahant of Dera Asan by the learned Court after the case had been remanded by this Court. Soon thereafter in the year 1981 itself, an application was made for impleading Dera Asan through its Mahant, Om Narain Gir, as plaintiff No. 10. This application was allowed by the learned trial Court on February 19, 1983.

In point of time, Regular First Appeal No. 988 of 1981 comes first. As already noticed, the learned trial Court had framed as many as 12 issues and found that the land in dispute measuring 110 Kanals 10 Marlas was a trust property and that the Dera was a public religious and charitable institution. It was further found that Baba Tehal Gir, who was the predecessorininterest of Baba Birgir, the appellant, has inherited the property like his ancestors subject to the limitation that he will not alienate by way of sale, mortgage, gift or exchange or in any other manner the property belonging to the Dera. It was further found that the revenue entries showing the defendant and his predecessorsininterest as maurisi and thereafter as owners were actually wrong. It was further found that the appellant, Baba Birgir had alienated the land of the Dera for a sale consideration of Rs. 45,000/ to Mahabir Singh and in view of the fact that he (no) had right to sell or mortgage it, he had misconducted himself. It was in view of these findings that the learned trial court decreed the suit of the plaintiffrespondent and ordered the removal of the appellant, Baba Birgir from the Mahantship of the Dera and divested of the properties belonging to the Dera. Further Mahant Om Narain Gir was appointed as the Mahant and the Mohtmim of the Dera and also of the properties movable or immovable belonging to the Dera.

Shri H.L. Sarin, learned counsel for the appellant, has raised a twofold contention. It has been contended that the appellant had actually submitted an alternative scheme on March 24, 1981, which has been reproduced in the grounds of appeal and that the learned trial Court has clearly erred in observing that "no counter scheme has been placed on record and indeed even at the time of arguments no counter scheme was proposed or suggested and no attempt was made to improve upon the scheme furnished by the plaintiffs or to suggest any modifications or to suggest any change therein." Learned counsel contends that this observation is totally incorrect. It has been further argued that the appellant is an old, blind and helpless person and some provisions should be made in the scheme for his maintenance. This claim has been controverted by Shri P.K. Palli, learned counsel for the respondents.

So far as the first contention raised by the learned counsel for the appellant is concerned, it may be mentioned that nothing has been pointed out from the record to show that any scheme, as mentioned in the grounds of appeal had been actually submitted by the appellant to the Court. Irrespective of that, even if it is assumed that such a scheme was submitted, I am of the considered view that the scheme framed by the Court is in all respects better than the one proposed by the appellant. The Dera being a religious and charitable trust, any scheme that may be proposed or framed should promote better management and be calculated to promote the interest of the Dera than that of any individual. The scheme that was proposed or framed by the learned trial Court should achieve the desired objectives. It has apparently remained in operation for the last more than 11 years. Nothing has been pointed out to show that it has not promoted the purpose for which it was framed. Nothing has been brought on record with may even remotely indicate that either the Mahant has not functioned properly or that the Committee has failed to perform its functions in accordance with the provisions made in the scheme. In such a situation, the contention raised by the learned counsel that the alternative scheme should have been accepted cannot be sustained.

Equally lacking in merit is the contention that a provision should have been made for the maintenance of the appellant. Learned trial Court while considering the matter has declined a similar prayer because evidence has come on record that on account of his character and activities the defendant has forfeited to right to reside in the Dera or in any property belonging to the Dera or being maintained by the Dera. This finding has not been controverted by any evidence. In such situation, I cannot find any infirmity in the order passed by the learned Trial Court.

In view of the above, I find no merit in the appeal. It has to be consequently dismissed.

This brings me to the consideration of the contention raised in Regular Second Appeal No. 2403 of 1986. This appeal arises out of the suit for possession filed by respondent Nos. 1 to 10 on November 21, 1978. In the suit under section 92, which had been filed by respondent Nos. 1 to 9, it was found that the land measuring 110 Kanals and 10 Marlas belonged to the Trust and that Baba Birgir had no right to execute the sale deeds in favour of Mahavir Singh or Dr. Raj Singh Malik. In fact it was held that he had misconducted himself be executing sale deeds in respect of land measuring 104 Kanals and 12 Marlas. On the pleadings of the parties, the learned trial Court had initially framed the following issues :

Whether the Dera Asan is a public religious charitable institution in the nature and character of a public trust ? OPP

Whether Dera Asan is a trust of the property mentioned in the plaint ? OPP

Whether the agricultural land measuring 110 Kanals 10 Marlas mentioned in the plaint was given to the Dera Asan as rent free Dohli for religious and charitable purposes ? OPP

Whether the Baba Tahalgir who succeeded to Baba Durga Gir and became Mahant and Manager of Dera Asan and its successors inherited Dera property subject to limitation of Dohli and limitation agreed by Baba Tahal Gir at the time of the sanctioning of mutation Nos. 427 and 428 dated June 30, 1902, if so its effect ? OPP

Whether the property of Dera Asan is inalienable for any purpose whatsoever ? OPP

Whether the Baba Gir had no right or authority to sell the agricultural land belonging to the Dera Asan ? OPP

Whether the defendant has misconduct himself as alleged in the plaint, if so, its effect ? OPP

Whether the registered sale deed April 17, 1979 executed by defendant No. 2 in favour of defendant Nos. 1 and 3 in respect of the land in dispute, is without authority, without consideration, illegal, fictitious, null and void and without legal necessity and is not binding on the Dera ? OPP

Whether the plaintiff has no locus standi to file the present suit ? OPD

Whether the plaintiff has no cause of action to file the present suit ? OPD

Whether the suit is not maintainable in the present form ? OPD

Whether defendant No. 2 is absolute and fulfledged owner of the land in dispute and he can alienate the suit property in any manner whatsoever, he likes and defendant No. 1 is a bona fide purchaser ? OPD

Whether the suit is time barred ? OPD

Whether the suit has not been properly valued for the purposes of court fee and jurisdiction ? OPD

Whether the plaintiffs are estopped from filing the present suit by their own act and conduct ? OPD

Whether the suit is bad for misjoinder of parties and causes of action ? OPD

Whether the plaint has not been correctly verified ? OPD

Relief.

On June 4, 1983, two additional issues were framed. These were :

Whether the plaintiff has made unauthorised amendments in the amended plaint, if so, to what effect ? OPD

Whether order dated April 27, 1981 passed by Shri V.R. Jain, learned Additional Sessions Judge, Hissar in Civil Suit No. 62 of 1978 operates as res judicata, if so, to what effect ? OPP.

After consideration of the entire matter, the learned trial Court held that the judgment dated April 30, 1979 passed by the learned Additional District Judge, Hissar in the Civil Suit under Section 92 which had been placed on record as Exhibit P2 operated as res judicata. As a result, the suit filed by the plaintiffs for a declaration that the sale deed was null and void and that they were entitled to the possession of land sold to Mahabir Singh was decreed.

This judgment was challenged by way of an appeal by Mahabir Singh. The Appellate Court initially considered the matter and vide judgment dated December 19, 1985, it held that the findings recorded by the learned trial court on Issue Nos. 1 to 8 and 12 were correct and affirmed. Similarly even findings recorded on the additional issues were also affirmed. So far as issue Nos. 9 to 11 and 11 to 15 were concerned, the Court held that the findings recorded by Shri S.K. Jain (now My Lord Mr. Justice S.K. Jain) vide his judgment dated April 30, 1979 (Exhibit P2) would operate as res judicata on these issues. Accordingly, the findings on those issues were considered on a subsequent date. These issues were disposed of by order dated May 3, 1986.

Dealing with Issue No. 9 on the locus standi of the plaintiffsrespondents, it was held that they had the right to maintain the suit and as such the issue was decided against the defendantappellants. It was further held that the plaintiffs had the cause of action to bring a suit for possession in respect of this property and as such the finding was recorded against the defendants. Similar is the position with regard to the remaining issues. As a result, the suit of the plaintiffsrespondents was decreed. Thus the present second appeal.

Shri S.C. Kapoor, learned counsel for the appellant has raised three points in this appeal. He contends that Mahabir Singh was not a party in the suit filed by the plaintiffrespondents Nos. 1 to 9 which was decided on April 30, 1979. Consequently, it is contended that the findings recorded in that suit cannot operate as res judicata against the present appellant, who was a bona fide purchaser of the land from Baba Birgir. It is further contended that plaintiff Nos. 1 to 9 had no locus standi to file the suit for possession. So far as the added plaintiffrespondent, viz. Dera Asan through Om Narain Gir is concerned, the claim was barred by limitation. The claim made on behalf of the defendantappellant has been controverted by Shri Palli. It has been contended that even in the revenue record, the property was recorded in the name of the Mahant and being a trust property, the vendor could not have passed any title to the appellant. Shri Palli has further pointed out that the appellant and the vendor Baba Birgir had filed a joint written statement in the suit. The effort was only to salvage what had been listed in the earlier proceedings and that the findings recorded by the Courts which have been affirmed by the Division Bench by dismissing the Letters Patent Appeal, rightly operated as res judicata. In any event, the learned counsel contends that the judgment of the Court was a relevant evidence and in view thereof as also on the basis of the said record, the claim made by the appellant, who is a transferee of land from Baba Birgir cannot be sustained. Learned counsel also points out that the property having been held to be that of the Dera, a suit for possession could have been filed by plaintiffrespondent Nos. 1 to 9. Initially no Mahant had been appointed. Further in the year 1979 itself i.e. almost within one year of the execution of the saledeed, an application was made for impleading the Dera. That application having been rejected, another application was made in the year 1981 for impleading the Dera through the Mahant who had been appointed in pursuance to the orders of the Court. This application was allowed on February 19, 1983. In view of the fact that the Dera is a religious, charitable and public trust, any member of the public could have initiated proceedings for restoration of the property to the Trust. The plaintiffrespondents were no strangers in the matter. They had the locus standi to file the suit. Further it has been pointed out that the suit was absolutely within limitation.

At the outset, it was put to the learned counsel for the appellant, if any evidence had been led besides that considered by the Court in the suit filed under section 92 which may show that Baba Birgir was the absolute owner of the land sold by him to the appellant. Learned counsel was not in a position to refer to any evidence. His only contention was that the judgment Exhibit P2 could not operate as res judicata against the transfer from Baba Birgir.

A perusal of the judgment dated April 30, 1979 which has been produced on record as Exhibit P2, shows that voluminous evidence, documentary as well as oral, consisting of the entries in the revenue record spreading over a period of almost a century had been examined and it was found that the property belonged to the Dera and not to Baba Birgir. Further it was also noticed that Baba Birgir while appearing as DW2 had agreed that these properties had come to him from his Gurus. On a thorough examination of the entire evidence, a positive finding was recorded that "the land in dispute measuring 110 Kanals 10 Marlas was a Dholi (trust) property and it cannot be alienated by the Mahant of the Dera i.e. the defendant." The finding recorded by the Court clearly shows that Baba Birgir was not the owner. By a hypertechnical construction of section 11 it may be said that the present appellant is not strictly bound by this judgment as he was not a party. In that sense, it will not operate as res judicata. However, even if it is assumed to be so, the appellant could succeed in depriving the plaintiffsrespondents of the relief sought in the suit if he could show by some evidence that Baba Birgir was actually the owner of the property and was entitled to transfer it by sale etc. Since the litigation has gone on for a fairly long time and the property of a public trust cannot be frittered away in fruitless litigation, I have afforded the learned counsel for the appellant an opportunity to show that the finding recorded by the learned trial Court in the suit under Section 92 was erroneous. He has not been able to refer to any evidence in this behalf. In such a situation, no useful purpose could have been served by remanding the matter to the trial Court for a report or for any other purpose.

There is another aspect of the matter. The suit under section 92 had been filed by persons who were entrusted with the proper management of the trust property and who did not claim any personal interest in that property. Baba Birgir, who claimed the title to the property had contested the suit as vociferously as possible. A person who claims a title to the property through another person cannot have a better title than that vested in the original owner, viz. Baba Birgir. It having been held upto this court in the previous litigation that Baba Birgir had no title in the property, it appears absolutely clear that he could not have passed any title to the appellant. Even otherwise, the suits under section 92 of the Code of Civil Procedure are filed in a representative capacity and the judgments in such suits bind not only the parties thereto, but such judgments operate against all concerned. The judgments are in rem. Reference in this behalf may be made to the pronouncements of the Courts in Hassanulla Khan v. Royal Mosque Trust Board, AIR 1948 Mad. 134 and S.C. Board of Waqf v. Sirajul Haq, AIR 1954 All. 88. Respectfully showing (following ?) these, I am of the view that the judgment was in rem and binds the present appellant as well.

There is another aspect of the matter. It is the admitted position that at the time of the sale and executing the sale deeds Exhibits D1 and D2, Baba Birgir had described himself as a Chela of Baba Pancham Gir. Succession from Guru to Chela normally excludes natural heirs and raises the presumption that the property had been dedicated to the Institution represented by the Mahant. This is the position in this case also. Baba Birgir had no personal title in the property.

Taking the totality of circumstances into consideration, I am clearly of the view that the Baba Birgir was not the owner of the property. He could not have passed any title to the appellant. No evidence has been pointed out to show that Baba Birgir was an absolute owner of the property. In such a situation, even if it is assumed that the findings in the earlier suit do not operate as res judicata, the sale of land in favour of the appellant was wholly illegal and conferred no right or title in the property on him. Consequently, the contention raised by the learned counsel cannot be sustained.

As for locus standi, plaintiffrespondent Nos. 1 to 9, who had originally instituted the suit, had launched a two pronged attack on Baba Birgir. Their first effort was to remove him from the Mahantship of the Dera so that the purpose for which the trust had been created could be achieved and the property was not further frittered away. Simultaneously another attempt was made to ensure that the property which had been disposed by Baba Birgir be salvaged. Consequently, after instituting the suit under Section 92 on October 19, 1978, the second suit on November 21, 1978, out of which this appeal has arisen was filed. Keeping in view the broad concept that has been given to the locus standi by their Lordship of the Supreme Court in the case of S.P. Gupta v. Union of India, AIR 1982 SC 149, it appears clearly that they had the locus standi to file a suit. They were not claiming it as their own property. They were not trying to achieve any personal gain. Their effort was to ensure the proper management of the Dera and its properties. The said plaintiffsrespondents have only tried to restore the property to the Dera and it has to be managed in accordance with the scheme prepared by the Court, which has already been upheld in Regular First Appeal No. 988 of 1981. In such a situation, it cannot be said that they did not have the locus standi to file the suit. In any event, the Dera was included as a plaintiff. First attempt in this behalf was made in the year 1979. Presumably on the opposition of the defendantappellant the application filed by respondent Nos. 1 to 9 was declined by the Court. In the year 1981, another application was filed. This application was allowed by the Court on February 19, 1983. The Dera had every right to file the suit. Even if a very narrow view is taken on the question of locus standi, the suit by the Dera was absolutely competent.

Taking the totality of circumstances into consideration, I find no ground to sustain the objection raised on behalf of the appellant that the plaintiffsrespondents did not have the locus standi to maintain the suit instituted by them.

This brings me to the consideration of last contention raised by the learned counsel for the appellant. It was contended that the Dera Asan having been impleaded as a plaintiff through Mahant Om Narain Gir on February 19, 1983 the suit shall be deemed to have been instituted only on February 19, 1983. The sale deed having been executed on April 7, 1978, the claim for a declaration that the sale deed was null and void and for the consequential relief of possession would be barred by limitation. The contention is wholly misconceived. As noticed above the suit had been actually instituted on November 21, 1978. The plaintiffs, who had then filed the suit had the locus standi to maintain it. It was consequently within limitation. Further an application was filed in the year 1979 for impleading the Dera. It was rejected. As soon as the Mahant was appointed by the orders of the Court, another application was filed in the year 1981. This application was allowed on February 19, 1983. The suit having been initially instituted on November 21, 1978, i.e. within less than eight months of the execution of the sale deed by plaintiffrespondent Nos. 1 to 9 and it already having been held that they have the locus standi to file, the suit was apparently within limitation. Still further, the courts already having held that Baba Birgir had no right or title in the property which he had sold, the plaintiffrespondents could have filed a suit only for possession. It was not necessary for them to seek a declaration that the saledeed was null and void. So far as Mahant Om Narain Gir is concerned, the cause of action can be said to have occurred in so far as he is concerned only after his appointment as Mahant. He had moved an application for being impleaded as a plaintiff soon after his appointment. Viewed from any angle, there appears to be no ground for taking the view that the suit was barred by limitation.

Accordingly, this appeal has no merit. It is dismissed.

As a result both the appeals are dismissed. In the circumstances of the two cases, the parties are left to bear their own costs.

Appeals dismissed.