Malook Dass vs Sahib Ram

D.K. Mahajan, J.—This second appeal is directed against the decision of the Senior Subordinate Judge reversing on appeal the decision of the trial Court dismissing the Plaintiff''s suit.

Mahant Ganga Dass brought a suit for possession of three Bighas of land out of khasra No. 1639 min., against Sahib Ram Defendant on the ground that the Defendant had taken illegal possession of it and had included the area in dispute in his khasra No 1638. According to the Plaintiff the land in khasra No. 1639 min. is the property of Thakar Dwara of which he is the Mahant. The Defendant raised the plea that the land in dispute was his property and in any case he had become its owner by adverse possession. During the pendency of the suit Mahant Ganga Dass died. His chela, Malook Dass, made an application for being impleaded as his legal representative. This application was allowed after it had been contested by the Defendant. Malook Dass was impleaded as the legal representative of Ganga Dass and was allowed to continue the suit. The trial Court decreed the suit and granted the decree prayed for. Against this decision, the Defendant preferred an appeal to the learned Senior Subordinate Judge who allowed the appeal and reversed the decision of the trial Court on the short ground that Malook Das was not the legal representative of Ganga Das and, therefore, the suit had abated and thus no decree could have been passed by the trial Court. It is against this decision that the present second appeal has been preferred.

Mr. Puran Chand who appears for Malook Das has raised two contentions (1) that the decision of the trial Court could not be reversed in appeal on the ground that Malook Das was not the legal representative of Ganga Das. In support of this contention he has relied on Balabai v. Ganesh ILR 27 Bom 162 Maiyarjan Bibi and Another Vs. Abdul Shek, and C. Subramania lyer v. Mathu Vaithilinga Mudaliar AIR 1919 Mad 971 (1), wherein it has been held that the order of the Court deciding as to who is the legal representative, of a deceased party is final and cannot be called in question in appeal. Mukerji, J., in Maiyarjan Bibi and Another Vs. Abdul Shek, observed:

It is well settled so far as the Calcutta High Court is concerned that an order allowing a substitution or setting aside an abatement passed by trial Court cannot be questioned in an appeal from a decree in view of the provisions of Section 105. Code of Civil Procedure.

Madras High Court took a contrary view in Konduvetty v. Moyan AIR 1918 Mad 1055 (1), but in the later decision which has already been quoted, it veered round to the view taken on the matter by the Bombay and Calcutta High Courts There is no decision of any other High Court to the contrary and none has been cited at the bar Therefore, it appears to me that the learned Subordinate Judge was In error in reversing the decision of the trial Court on the ground that Malook Das was not the legal representative of Ganga Das when he had been so held by the trial Court.

The second contention raised by Mr. Puran Chand is that on the merits the Senior Subordinate Judge has gone wrong in holding that Malook Das is not the successor of Ganga Das There is abundant evidence on the record to hold that Malook Das was the chela of Ganga Das. After the death of Ganga Das he was managing the affairs of the institution and, therefore, he would in this situation be an intermeddler in any case. Section 2 (II) of the CPC defines a legal representative, in these terms-

legal representative means a person who in law represents the estate of a deceased person, and includes any person" who intermeddles with the estate of the deceased and where a party sues or is sued in a representative character the person on whom the estate devolves on the death of the party so suing or sued.

Surely, Malook Das who is in possession of the property of the institution is an intermeddler. Even if I accept the finding of the lower appellate Court that no successor to Mahant Ganga Das has been appointed, the position will be that there is no successor to Ganga Das or, in other words, there is no legal heir to Ganga Das in existence and, therefore, Majook Das can as an intermeddler con-tinue the suit. Learned Counsel for the Respondent has cited Jai Kishen Das v. Karimuddin AIR 1939 Lah 321 and AIR 1938 298 (Nagpur) , in support of the contention that an interim order cannot continue the suit. Both these decisions are distinguishable on facts. In both these cases, there were legal heirs in existence and the possession of the intermeddler was that of a trespasser. This cannot be said in the instant case. Malook Das can in no sense be said to be a trespasser particularly when his possession of the institution as a de facto manager, if not as de jure manager has been accepted by various Mahants of various other institutions in the town of Patiala where the present institution is located In this connection reference may be made to Exhibit A. 1 and the testimony of various Mahants who appeared to support the lawful possession of the institution by Malook Das. I am, therefore, clearly of the opinion that the learned Senior Subordinate Judge was in error in holding that Malook Das was not the legal representative of Ganga Das.

For the reasons recorded above, the decision of the Senior Subordinate Judge is set aside and the case is remitted to him for decision on merits. It is further directed that the case be decided without any further delay as it is already a fairly old case. The parties are directed to appear before the Senior Subordinate Judge on 80to March, 1964. The Appellant will be entitled to his costs in this Court as well as in the Courts below.