Mahant Uma Shankar Das Chela late Mahant Jagat Narain Das vs Additional District Judge, Court No. 4 and Another

Prakash Krishna, J.—Original Suit No. 87 of 1988 was instituted by Mahant Jagat Narain Das (now deceased) against Defendants for permanent injunction restraining them not to interfere with the managing committee appointed by the Plaintiff on the pleas inter alia that there is an old Mandir which is being managed and run by religious trust Belwa. The said temple is situate in Mohalla Shekhpur, District Gorakhpur. There are other temples of Raghavram and other deities which are situate at different places. These deities own several agricultural land in different villages and after abolition of zamindari, the present Mahant namely, Mahant Jagat Narain Das through whom the suit was filed, is managing these trust properties. Further allegation is that the Defendant No. 1 and other Defendants are trying to interfere in the Plaintiff''s peaceful possession over the trust property in dispute. It was also stated that by misrepresentation and fraud, a Will was obtained by the father of Defendant No. 1 in favour of Defendant No. 1, which has been got cancelled by a registered document dated 18.10.1984. The properties are waqf properties and belong to Sangat Belwa Trust. During the pendency of the said suit the Plaintiff Mahant Jagat Narain Das died.

The suit is being contested by the Defendant No. 1. The dispute giving rise to the present writ petition arose on the death of the Plaintiff Mahant Jagat Narain Das on 13th February, 1989. An application for substitution was filed by present Respondent No. 2 Mahant Jagannath Das on 5th March, 1989 on the allegations that he has been appointed as Mahant by the deceased Plaintiff through a registered Will deed dated 27th December, 1988. Opposing the said substitution application, it was submitted by the Defendant No. 1/Petitioner that the Will in question could not have been validly executed by Mahant Jagat Narain Das (deceased) as Mahant Jagannath Das, Respondent No. 2, is an advocate by profession. Mahant Jagat Narain Das during his life time on 2nd August, 1984 as per custom of Udaseen Sampraday appointed Defendant No. 1 as Mahant, which has been approved by Uttar Pradesh Udaseen Mandal on 1st March, 1989. It is Defendant No. 1 who since 16th November, 1984 is Mahant and Sarwarakar and is managing the trust properties.

The trial court by its judgment and order dated 28th May, 2005 rejected the substitution application No. 75-A and declared the suit as abated as there was no one to prosecute it. The said order was challenged successfully by Mahant Jagannath Das, Respondent No. 2, in Misc. Appeal No. 31 of 2005. The appellate Court by the impugned order dated 23rd October, 2008 has allowed the appeal and set aside the order of the trial Court allowed the substitution application and directed the trial court to proceed with the hearing of the suit.

Shri H.P. Mishra, learned Counsel for the Petitioner submits the following two points for consideration in the present writ petition.

(1) Firstly, the misc. appeal before the court below against the order dated 28th May, 2005 was not maintainable. The revision was maintainable instead.

(2) Secondly, on merits, the deceased Plaintiff could not have executed the Will deed in question in favour of Mahant Jagannath Das, who is an advocate by profession and is not Mahant.

In reply, learned Counsel for the contesting Respondent No. 2 submits that an application was filed by the Petitioner to treat the appeal as revision but the Court came to the conclusion that the appeal is maintainable, and allowed the appeal, the objection raised by the Petitioner is technical in nature that in any case the order of the trial court was revisable by the court below. On the second point, submission is that the property in dispute belongs to trust and the suit was brought by the deceased Plaintiff in the interest of trust who managed the trust properties. In other words, the suit was not for declaration of title as personal property of the Plaintiff but was for permanent injunction, in representative capacity.

Considered the respective submissions of the learned Counsel for the parties.

So far as the first point is concerned, the Court below has held that the appeal was maintainable under Order 43(1)(1) of the Code of Civil Procedure. It has proceeded on the footing that the order rejecting the substitution application and declaring the suit as abated was passed under Order 22 Rule 10 of the Code of Civil Procedure. It has been found that the deceased Plaintiff or applicant for substitution has not claimed their personal interest and the applicant (Respondent No. 2) has sought permission to substitute himself in place of deceased Plaintiff in the matter of trust and to continue the suit. The said approach of the court below is perfectly justified looking to the plaint allegations and also the objection filed by the Defendant No. 1.

Noticeably, the suit has been filed on the allegations that the property in dispute is the trust properties and the deceased Plaintiff was Sarwarakar. Interestingly, the Defendant No. 1 has also come out with the case in his objection to the substitution application that it is the Defendant No. 1 who has been appointed as Sarwarakar by the deceased Plaintiff during his life time. The contents of the para-5 of the objection of the Defendant No. 1 are very relevant. His case is that the deceased Plaintiff during his life time on 2nd August, 1984 as per rites of Udaseen Sampraday after performing the customary ceremonies appointed Defendant No. 1 as his Chela and given him full right of Mahantship, which was approved by Uttar Pradesh Udaseen Mandal. This being so, undoubtedly, the property in dispute is not personal property of any body. On the death of the Plaintiff, the suit was not brought by the proposed Plaintiff for declaration of his personal right. It was brought on the premises that the property in dispute belongs to the deities and are the trust properties, earlier managed by the Plaintiff. In this view of the matter, the objection raised by the Petitioner that the appeal before the court below was not maintainable, is not legally justified.

So far as the second question is concerned, on examination of the two orders and judgments of the Court below, it would show that the trial court had proceeded to reject the substitution application on the premises that the applicant for substitution is an advocate and no such Will as set up by him could have been validly executed in favour of the applicant as the applicant is not Mahant but an advocate. The said approach is faulty and the appellate court has rightly set aside the order of the trial court. In this regard, the appellate court has rightly held that at this stage, the legality and validity of the Will as set out by the applicant could not have been gone into. The fact that the applicant has become an advocate by profession will not in any case vitiate the Will deed dated 27th December, 1988. By the impugned order, the court below has allowed the substitution application which was filed within the time and set aside the order passed by the trial court abating the suit. The impugned order is an interlocutory in nature and it advances the cause of justice. On this ground also, no case for interference under Article 226 of the Constitution of India has been made out.

No other point was pressed.

The matter is old one and it is desirable that the suit should be heard and disposed of expeditiously. The trial court shall not grant unnecessary adjournment. The hearing of the case shall be adjournment only under exceptional and unavailable circumstances within the permissible limits as provided for adjournment under given in CPC and that too on payment of cost not less than Rs. 500/- per adjournment. The case shall not be adjourned for a period of more than one month at a time.

The writ petition is dismissed with costs.