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Judgment
Sanjay K. Agrawal, J
Heard this second appeal on the question of admission and formulation of substantial question of law preferred by the appellants/defendants.
Mr.Somnath Verma, learned counsel for the appellants/defendants, would submit that both the Courts below are absolutely unjustified in decreeing
the suit of the plaintiff by recording a finding which is perverse to the record and appeal deserves to be admitted on following three substantial
questions of law:Â
(i) That, names of defendants No.5, 11, 12 and 14 were deleted before the trial Court, but their legal representatives were not brought on record,
therefore, the suit had already abated ?
(ii) That, by Ex.PÂ11 trust deed dated 13.11.70 executed by original holder of the land of the suit property in favour of plaintiffÂShri Venketesh
Bhagwan Mandir by which no title has been conferred to the plaintiff ?
(iii) That, the issue decided by the trial Court that Shri Niwasacharyaji Maharaj had right to bring a suit on behalf of temple is perverse and the suit
was filed by Shri Venketesh Bhagwan Mandir through Shri Niwasacharyaji Maharaj on 25.4.85 by virtue of trustÂdeed dated 13.11.70 executed by
Smt. Balsunderbai, original holder of the suit land in favour of plaintiff/temple, therefore, sale deed dated 19.7.71 and WillÂdeed dated 20.11.70 are
illegal.
The plaintiff filed a suit for declaration of title on the basis of trustÂdeed dated 13.11.70 (Ex.PÂ11), for declaration of WillÂdeed dated 20.11.70
executed by Smt.Balsunderbai in favour of Shiv Kumar as null and void and for vacant possession of suit land and perpetual injunction. The said suit
was opposed by the defendants therein by filing written statement. During the course of trial, defendant No.5ÂShivkumar died on 10.4.1996 as per
substitution application and his name was deleted as per the Court's order dated 31.8.1996. Similarly, defendant No.11ÂRambharos & defendant
No.12ÂBahoran both have died (date not mentioned in substitution aplication filed on 10.1.1989) and their names were deleted as per Court's order
dated 28.4.1989 and defendant No.14ÂRadheshyam died on 30.3.1989 as per application dated 27.10.1989 and his name was deleted on 18.9.1996 as
mentioned in plaint, but no objection was taken on behalf of the present defendants while deleting their names and the suit was allowed to continue.
Even, the suit was dismissed holding that Shri Venketesh Bhagwan Mandir has right to institute a suit on behalf of the plaintiff/temple, but by trustÂ‐
deed dated 13.11.70, no title has been transferred in favour of the plaintiff. The plaintiff preferred first appeal under Section 96 of the CPC before the
first appellate Court, in which defendants No.7 to 15 preferred crossÂobjection under Order 41 Rule 22 of the CPC questioning a finding of issue
No.1 decided against them. The first appellate Court by its impugned judgment and decree dated 16.2.2005 allowed the first appeal and declared the
WillÂdeed dated 20.11.70 as illegal and declared that sale made by defendant No.5ÂShivkumar to other defendants, they have not acquired any title
and granted permanent injunction. The first appellate Court firstly affirmed finding that Shri Niwasacharyaji Maharaj has right to institute a suit on
behalf of private trust holding that vide Ex.PÂ2 power and authority has already been conferred to Shri Niwasacharyaji Maharaj to manage the
property and defendants No.5 to 15 have failed to establish that it is public trust registered under the Chhattisgarh Public Trusts Act, 1951 (hereinafter
called as ""the Act of 1951"") and held that Shri Niwasacharyaji Maharaj has right and authority to bring a suit on behalf of idol and affirmed that finding
recorded by the trial Court.
Finding recorded by two Courts below that the suit property is held by private trust and it is not the property of public trust registered under the Act
of 1951 and the plaintiff through its Mahant has right/authority to file a suit on behalf of idol is finding of fact based on evidence available on record,
which is neither perverse nor contrary to record and gives no substantial question of law for determination.
Next substantial question of law proposed is that Ex.PÂ11 by which Smt.Balsunderbai surrendered the suit property in favour of plaintiff/temple
would not create any title in favour of the plaintiff. It is registered document executed by original holder in favour of the plaintiff and even it has not
been questioned by the defendants seeking any declaration that it does not confer any title. It is registered instrument transferring/relinquishing her
entire interest in the suit property in favour of the plaintiff/temple. It is not in dispute that she was not owner and titleÂholder of the suit property on
the date of executing the said deed in favour of the plaintiff/temple on 13.11.70. No substantial question of law is involved in this regard. Likewise,
defendants No.5, 11, 12 and 14 were deleted with the leave of the Court before the trial Court and in presence of the defendants. In an appeal
preferred by the plaintiff, defendants No.7, 8B, 8C, 9, 13 &15/appellants herein (his LR's) also preferred cross objection under Order 41 Rule 22 of
the CPC before the first appellate Court on 18.11.99, but they did take like objection before that Court, that suit had abated on account of not brining
their legal representatives on record, whereas they could have taken such an objection, therefore, they (appellants) cannot be permitted to take such
objection with regard to their deletion from cause title before this Court for the first time in this second appeal. I do not find any substantial question of
law in this regard also.
Accordingly, the second appeal being devoid of any substantial question of law is liable to be and is hereby dismissed in limine without notice to
other side.