Raja Meghraj Singh and others vs Baba Devdas and another

N.M. Golvalker, J.

This revision petition is by the party who has been unsuccessful in the proceedings u/s 145 of the Criminal Procedure Code in Criminal Case No. 61 of 1969 of the Court of Sub-Divisional Magistrate, Damoh, which have ended in favour of non-applicant No. 1. The Sessions Judge, when moved, declined to do so as in his opinion, there was no cause for the same.

The facts giving rise to the proceedings u/s 145 of the Criminal Procedure Code are these, and they are substantially accepted excepting only with respect to the status of non-applicant No. 1 and his possession on that basis: According to the Petitioners, non-applicant was a Pujari, while according to him, he is a Sarbarakar of the Deity; that temple in village Patna of Shri Deo Janki Raman was built by Raja Harbansh Rai Bahadur of Bajranggarh, Tahsil and District Damoh in Samvat year 1940; that he dedicated land 120.85 acres in village Patna for the maintenance and Prasad of the Deity installed in the said temple; that Raja Harbansh Rai created a private trust which lasted upon 8-1-1956; that a public trust was created at the instance of the petitioners both of the temple as also property, vide Revenue Case No. 341-33/9 of 1953-54 of the Court of Deputy Commissioner, Sagar; that the order was passed for registration of the said Trust on 20-2-1956; that petitioner No. 2 Diwan Mansingh is the Muhatmim (Managing Trustee) of the temple and the property thereof; that the entire management and care is in the hands of the Muhaimim Petitioner No. 2. under the M.P. Public Trusts Act; that the power of removal of Pujari for misconduct, and mismanagement of the temple is exclusively in the hands of the Muhatmim which he is discharging as required under law; that after the removal of Pujari Kaushal Kishore, the present Pujari Baba Devidas, respondent, was appointed as Pujari; that he is wrongly shown in the revenue papers as ''Sarbarakar'', but his duties are only that of Pujari; that he has to perform Puja and distribute Prasad etc. and also to celebrate the festivals and collect rent from sub-lessees; that on account of misconduct and bad management, the Muhatmim asked the respondent to improve the functioning of the temple and also explain how one of the hands of deity Laxmanji was broken in the temple; that the respondent got annoyed and started putting forward his own untenable exclusive claim to the management of the temple as also property dedicated.

The Sub-Divisional Magistrate, accepting the possession of non-applicant No. 1 which possession he was bound to hold whether as a Pujari or as a Sarbarakar, held in his favour in the final order u/s 145 of the Criminal Procedure Code. The Additional Sessions Judge, Damoh, has endorsed that order. Hence this petition in this Court.

I heard Shri R.N. Rai, counsel for the petitioners and Shri Aathia, counsel for non-applicant No. 1. In my opinion, this petition has to be allowed directing the petitioners, especially petitioner No. 2 Diwan Mansingh, to be placed in possession of the land and restraining non applicant No. 1 from interfering with their or Mansingh''s possession over the lands in dispute.

Even assuming that non-applicant No. 1 Baba Devidas is a Sarbarakar of the temple in which the Deity is installed for whose benefit the land was dedicated, matters will not improve in his favour. It is admitted that after his predecessor Kaushal Kishore was removed by the trustees of the temple, he was appointed by them under a document dated 12-6-1958. The terms of that document, styled as ''Panch Faisla'' under which non-applicant No. 1 was appointed, may be properly reproduced hereunder in order to lind out what the position of the said non-applicant is in relation to the temple, the Deity and the property in question--

To this document is also attached the list of movable properties which were entrusted to the care of non-applicant No. 1. A perusal of the aforesaid terms of the document will make it abundently clear that non-applicant No. 1, whether a Sarbarakar or a Pujari, is nothing but on employee of the trustees of the temple. It cannot be accepted, as was urged before me by the learned counsel for him, that he also holds the position of a trustee. Once this position is accepted, all that property of the Deity, both movable and immovable which was entrusted to him, will have to be held to have continued in possession both in law as also in fact of the trustees of the temple and possession of the non-applicant No. 1 would be that of a mere servant for and on behalf of those trustees and accordingly I hold.

The learned Sub-Divisional Magistrate appears to carry the impression that the actual possession, which he has to determine u/s 145 of the Criminal Procedure Code has to be irrespective of the status of the person whom he holds to be in possession. True it is that u/s 145 of the Criminal Procedure Code, possession, even of a trespasser, has to be protected provided he has been in possession not on the date of the preliminary order, but since before 2 months prior to the date of that order. However, it should be borne in mind that possession of a trespasser would always be exclusively on his own. But when initially a person enters into possession for and on behalf of another, he will not be allowed to turn round all of a sudden and voluntarily disclaim the nature of that possession and exclude the persons for and on whose behalf he had entered into that possession. If a person is placed in possession as an employee or a servant, he cannot set up his own possession to the exclusion of his employer as otherwise a servant placed in possession of a house by his master who goes on a voyage or a journey and remains absent from the spot for over 2 months and then returns back to his house, the said servant who was meanwhile allowed to hold the house in his possession during the absence of his master would be able to successfully resist the entry of his master, and the Sub-Divisional Magistrates before whom the matter is taken, would be helpless to restore to the master his possession over the said house. I do not think section 145 of the Criminal Procedure Code recognises such a right in a servant. I am fortified in this view by the decision of this Court in case of Bajirao v. Mst. Dadibai and another AIR 1926 Nag. 286. I may quote the following observations made therein by the learned Judge:

I fully concur with the view laid down in Nritta Gopal Singh v. Chandi Charan Singh that the possession of an agent or a servant which is permissive, cannot give a party to a proceeding a locus standias against his principal or master. The possession that can be pleaded in a proceeding u/s 145, Criminal Procedure Code, must be possession based on a claim of right to possession.

As I have already pointed out, the only right to remain in possession to which the non-applicant No. 1 has himself referred to, is that of a Sarbarakar which right is not only subservient to, but emanates from the primary possession vesting and subsisting in the trustees. The aforesaid decision of this Court has been followed in the case of Balak Das and Another Vs. Bhagwan Das @ Bhagwan Bhagat and Another, . If the possession of a servant is always and at every moment of time that of his employer a position which cannot be disputed the inevitable conclusion to which the Sub Divisional Magistrate should have reached, was that on the date of the preliminary order, the petitioner trustees were in possession and non-applicant No. 1 cannot resist. I may also properly refer to the view expressed in case of Thyalyee Ammal v. Shrirangaroys Goundas and another AIR 1923 Mad. 60 in which position of a servant, similar to the one to which [ have already made a reference earlier in this Order, was duly pointed out and disapproved.

The learned counsel for non-applicant No. 1, in course of his arguments, drew my attention to the decision of this Court between the same parties and relating to the same property in the case of Raja Meghrajsinghji Deo, petitioners v. Registrar of Public Trusts, Damoh, non-applicant M.P. No. 767 of 1973 decided on the 29th August 1974 and contended that since that petition has been dismissed and their right to possess the land as trustees having been denied, the final order passed by the Sub-Divisional Magistrate in the instant case, cannot be disturbed. He also urged, by filing a separate petition, that since that decision was by a Division Bench of this Court. I should also refer the question involved in the instant revision petition to a Division Bench. However, as I am duly considering that decision, I need not refer the instant petition to a Division Bench as prayed for and reject the prayer.

In my opinion, instead of supporting the non applicant No. 1, the decision would, in a way, support the Petitioners. The said Misc. Petition was moved challenging the order of the Registrar of Public Trusts, Damon, as he declined to grant relief to the Petitioners when they had moved him for removal of the non-applicant from the position of a Pujari on various grounds stated therein. The said Registrar had initially granted the relief. But as it was an ex parte decision, the non-applicants moved for re-hearing. He heard it and gave a decision to say that it was not possible to grant the leave prayed for by the Petitioner trustees. This Court, in exercise of its Writ Jurisdiction, held that the petition by the Petitioner trustees before the Registrar, was entirely misconceived. They could only pray the Registrar for a direction permitting them to move the District Judge who alone could decide whether the Pujari is liable to be removed or not and this is the final decision of this Court:

''''It appears that the Petitioner''s application before the Registrar was misconceived. It is true that the Petitioner, as a person interested in the public trust could make an application u/s 26 of the Public Trusts Act. But instead of seeking a direction from the Registrar to the working trustee to apply to the District Court for direction, the Petitioner prayed for the removal of respondent No. 2 from the office of Pujari. The Registrar also without looking to the relevant provisions of the Act, had ordered earlier for the removal of respondent No. 2 from the office of Pujari. It appears that on the application of respondent No. 2 to set aside the ex parte order, the Registrar realised his mistake and passed the last order dated 30-8-1973, to the effect that it was not possible to take any action on the complaint filed by the Petitioner. In case the Registrar was satisfied that the trust property was not being managed or administered properly, he could have even suo motu made an application to the District Court for suitable directions. However, even now the Petitioner or the working trustee, if any, may again move the Registrar for a direction to apply to the District Court in accordance with the provisions u/s 26 of the Public Trusts Act. That remedy being still open, the writ jurisdiction of this Court cannot be invoked.

It will thus be seen that this Court has not recognised that non-applicant No. 1 as a trustee. On the contrary, it is indirectly held that he is an employee under the trustees and liable to be removed, if a case is made out for that purpose before the District Judge. So the aforesaid decision, instead of supporting the non-applicant, would support the petitioner.

Thus in the view that I have taken as aforesaid, non-applicant No. 1, being only a servant, cannot resist the petitioner trustees if they mean to prohibit him from continuing in possession. Their possession is already there. It is only the hostile attitude of non-applicant No. 1 which is only coming in their way to maintain their possession over the lands in dispute. Since they have already served him with a notice proposing therein that they do not intend to retain him any longer in their service with regard to the temple, they can keep him out from those lands which he is holding as servant. It is not necessary that he should be formally removed on permission being granted by District Judge. For he can still act as Pujari, if he chooses to do or desire without being in possession of the temple and its property. The trustees or the managing trustee would manage the property and provide him with such funds as may be found in his opinion necessary for the upkeep of the temple and performance of Pooja etc. of the Diety installed therein.

Accordingly I accept this revision petition, set aside the order of the Sub-divisional Magistrate dated 3-11-1971, in Cr. C. No. 61/69, as has been upheld by the Additional Sessions Judge, Damoh, by his order dated 20-7-1972 passed in Cr. Revision No. 7/71, and direct that the petitioners, more particularly petitioner No. 2 Mansingh who is the Managing Trustee of the temple and the Deity along with the property, be placed in possession of the property in dispute and non-applicant No. 1 is restrained from disturbing that possession except in due course of law.