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S.C. Mital, J.—Facts giving rise to this revision petition are that Puran Nath Plaintiff No. 2 claiming himself to be the Mohtmim of Shiv idol, Plaintiff No. 1, Shiv Mandir, Sector 19, Chandigarh, filed a suit for a permanent injunction against Sanatan Daram Pratinidhi Sabha, Defendant No. 1 and others praying that they be restrained from interfering-with the possession of the Plaintiffs on the Shiv temple building and the land attached thereto. The suit was resisted by the Defendants. During the pendecny thereof. Puran Nath died on 23rd March, 1974. Kidar Nath alleging himself to be the chela of the deceased filed an application for being brought on the record as his legal representative and also for permission to represent the Shiv idol. The application was opposed by the Defendants. The trial Court framed the following issues: -
Whether the applicant is the legal representative of deceased Plaintiff No 2 ?
Whether the applicant is entitled to represent Plaintiff No. 1 ?
Relief.
Both the issues were decided against Kidar Nath. His application was accordingly dismissed. The trial Court further ordered that the suit had abated. Not satisfied, Kidar Nath has filed this revision petition u/s 115 of the Code of Civil Procedure.
To the maintainability of the revision petition Mr. R.L. Aggarwal, Learned Counsel for the Respondents, raised the objection that alternative ramedy by way of filing a suit to establish that Kidar Nath Petitioner was the lawfully appointed successor of Puran Nath deceased was available to him. Support was sought from Faizuliabhai and Anr. v. Chhunilal AIR 1951 M B. 79. In that case during the pendency of a small-cause case property of the Defendant was got attached. The application of the Defendant for quashing the order of attachment was dismissed by the Small Cause Court on the ground of delay. Simultaneously the Defendant had put in an application u/s 93(sic) of the Code claiming compensation, alleging that the attachment was wrongful. This application too was dismissed and the suit was decreed. In the revision petition before the High Court the Defendant did not contest the decree on merits. His only grievance was that his application u/s 95 was not enquired into by the trial Judge. On facts it was found that the Defendant did not lead evidence in support of his claim. The High Court did not consider it proper to interfere in revision to remand the case. The learned Judge observed that there was nothing to prevent the Defendant from filing a separate suit for claim-ing compensation for wrongful attachment. On the face of it Faizul-labhai''s case has no applicability to the facts of the case in hand. Mr. Aggarwal then cited Bhagwandass Vs. Banshidhar, . This too appears to have no bearing on the case in hand, in as much as in that case an ex-parte decree passed by the Small Cause Court was assailed in revision. It was prayed that the case be remanded for enabling the Petitioner to have an opportunity to cross examine the witnesses of the other party and also for adducing his own evidence The learned Judge declined to accept the prayer on the ground that it was open to the Petitioner to have applied for setting aside the ex parte decree, but he failed to do so. Mr. Aggarwal then referred to Bhakti Sudha Pattadar and Others Vs. Manorama Devi and Others, This ruling too is entirely distinguishable on facts. That was an execution case in which the High Court declined to interfere, for, the aggrieved party could, in the alternative file a suit under Order 21, Rule 103.
On the other hand Mr. Anand Swaroop, Learned Counsel for Kidar Nath Petitioner, contended that under Rule 5 of Order 22 it was incumbment upon the trial Court to determine the question whether Kidar Nath was or was not the representative of Puran Nath deceased. As required by these provisions of the Code the trial Court decided the question. Maintainability of the present revision petition against the impugned order was supported by AIR 1935 934 (Lahore) , decided by Din Mohammad, J. The other ruling directly in point is Kanailal Mitra Vs. Pannasashi Mitra, wherein a Division Bench held that the order in so far as it decided the question of the right of the Petitioner to get himself substituted in the place of the deceased was an order under Order 22, Rule 5 and the Petitioner had no right of appeal against that order and as such his application for revision u/s 115(sic) was maintainable. Respectfully agreeing with the view expressed by the learned Judges in the said two rulings, I overrule the preliminary objection.
The decision of the trial Court on issue No. 1, whether Kidar Nath was the representative of Puran Nath deceased, urged by Mr. Aggarwal, was concluded by a finding of fact based on appreciation of evidence Hence, argued the Learned Counsel, it was not open for this Court in the exercise of its powers u/s 115 to revise it. The first ruling relied on was Jal Hirji Taraporevala Vs. K.A. Hamid, , in which Shah, J. (as be then was) held that where the decision of the lower Court was based upon what is substantially appreciation of evidence and inferences drawn therefrom, that conclusion is binding upon the High Court and is not liable to be challenged in a petition u/s (sic). The other authority strenuously pressed was Misrilal Parasmal Vs. H.P. Sadasiviah and Another, Dealing with a revision petition under the Mysore House Rent and Accommodation Control Act of 1951, their Lordships held that there could be no interference in revision merely because the decision is erroneous in law or fact. Emphasis was then laid by the Learned Counsel on the observations of their Lordship of the Supreme Court in D.L.F., Housing and Construction Company (P.) Ltd., New Delhi Vs. Sarup Singh and Others, In the instant case Clauses (a) and (b) of Section 115 were not pressed into service. However, Clause (c), providing that the Subordinate Court aced in the exercise of its jurisdiction illegally or with material irregularity, was said to be applicable to the case in hand. With respect to Clause (c) their Lordships held that the words " illegally " and " with material irregularity " do not cover either errors of fact or of law ; they do not refer to the decision arrived at but merely to the manner in which it is reached. The errors contemplated by this clause may relate either to breach of some provision of law or to material defects of procedure affecting the ultimate decision, and not to errors either of fact or of law, after the prescribed formalities have been complied with.
With the principle enunciated by the authorities referred to above there was no quarrel. Learned Counsel for Kidar Nath Petitioner urged that in the case in hand, in the first place, there was no appreciation of evidence worth the name by the trial Court and, in the second place, the true legal position as to the representative capacity of Kidar Nath was not considered by it. So far as the first point is concerned, a Full Bench of the Allahabad High Court in Shambhu Dayal and Others Vs. Pt. Basdeo Sahai, , laid down that if a Court omits to consider a material on record having a bearing on the question to be decided by it or fails to apply its mind to or to record a finding on a crucial aspect of the case which cannot be ignored in the determination of the controversy before the Court, it certainly acts illegally (sic) at least with material irregularity in the exercise of its jurisdiction. M/s. Hindustan Steel Ltd v. Amarnath Sharma AIR 1971 Ori 288, was a case in which Misra, C. J., reversed the finding of fact, for, the subordinate court ignored the admission of the opposite party etc. The same learned Judge in Ananta Misra Vs. Utama Dibya, , again in the exercise of powers u/s 115, set aside the order of the subordinate court because it failed to bestow attention on crucial factors in evidence lending some probability to a version in question. In Bhagavathi Mudaliar Vs. N. Subramaniam, , the decision of the subordinate court was reversed by M. Anantanarayanan C. J., on the ground that it was not based on any legal evidence In view of the above, it cannot be said that under no circumstance decision of subordinate court on a question of fact cannot be revised.
The present suit was filed by: (1) Shiv idol through Mahant Puran Nath, Mohtmim Shiv Mandir, Sector 19, Chandigarh, and (2) Mahant Puran Nath, Manager Dera Baba Garib Nath, Pehowa, Tehsil Kaithal District Kurukshetra (Haryana), Mohtmim Shiv Mandir, Sector 19, Chadigarn. A perusal of the plaint shows that nowhere did Mahant Puran Nath claim proprietary rights either to the Shiv temple or the lands attached thereto. In other words, the entity of Shiv idol as a juristic person was kept intact. Against this background, Learned Counsel for Kidar Nath contended that Rule 10 (1) of Order 22 of the Code was applicable, which provides that "in other cases of an assignment, creation or devolution of any interest during the pendency of a suit, the suit may, by leave of the court, be continued by or against the person to or upon whom such interest has come or devolved". The present case, urged Learned Counsel for Kidar Nath, was of devolution of interest to prosecute the suit on behalf of the juristic person, viz., the Shiv idol. Since Puran Nath had not claimed any proprietary rights, therefore, the only interest that devolved on Kidar Nath was the one indicated above. Shri Rikhu Dev, Chela Bawa Harjug Dass v. Sam Dass (deceased) through his Chela Shiam Dass, 1975 CLJ 648 was case in which their Lordships of the Supreme Court held that "when a suit is brought by or against a person in a representative capacity and there is a devolution of the interest of the representative, the rule that has to be applied is Order 22, Rule 10 and not rules 3 or 4 whether the devolution takes place as a consequence of death or for any other reason. Order 22, Rule 10 is not confined to devolution of interest of a party by death it also applies if the head of the mutt or manager of the temple resigns his office or is removed from office. In such a case the successor to the head of the mutt or to the manager may be substituted as a party under this rule. The word "interest" which is mentioned in this rue means interest in the property, i.e. the subject matter of the suit and the interest is the interest of the parson who was the party to the suit." On the strength of this authoritative pronouncement by their Lordships of the Supreme Court, Learned Counsel for Kidar Nath rightly urged that the trial Court acted with material irregularity in applying the provisions of Order 22, Rule 3, providing for causing the legal representative of a deceased Plaintiff to be made a party.
Now what is required to be seen is, whether the decision of the trial Court is based upon substantial appreciation of evidence and inferences drawn therefrom vide Jai Hirji Tarapor ala''s case (supra). It is worth while mentioning that "to appreciate" means "to estimate justly ; to be fully aware of, or alive to the value, importance, or worth of ; to be fully conscious of ;............" vide Corpus Juris Secundum, Volume VI.
The present material on record indicates that the Shiv idol installed in a temple, now situate in Sector 19, Chandigarh, was earlier located within the revenue estate of village Nagla. For acquisition purposes measurements of the said estate were taken in 1951-52 A certified copy of the relevant entry from the measurement register in the ownership column, reads ; "Temple Shiv Ji Maharaj through Kidar Nath Pujari for the time being". Then comes the sworn testimony of A.W. 2 Lal Chand to the effect that Mahant Puran Nath had appointed his Chela Kidar Nath as Mukhtar-i-Am Power of attorney, Exhibit P. 1 was duly proved by this witness. Futher the sworn testimony of Jiwan Nath A.W. 1 was that Bhagti Nath was the Mahant of the Dera Baba Garib Nath, situated at Pehowa. Bhagti Nath appointed Puran Nath as the Mahant in preference to the other Chela, namely, Itbar Nath Now comes the deposition of Kidar Nath himself as A.W. 4 that he was the Chela of Mahant Puran Nath and the Shiv idol (Plaintiff No. 1) was attached to the Gaddi of the Mahant in Pehowa. Mahant Puran Nath was its Mohtmim. In his cross-examination Kidar Nath refuted the only relevant suggestion that Mahant Puran Nath was the "Pujari" and not the "Mohtmim" Learned Counsel for Kidar Nath vehemently urged that in determining the representative status of Kidar Nath the trial court completely lost sight of this aspect of the case.
In order to show that the interest of Puran Nath Mahant devolved, by reason of his death on 24th March 1974, on Kidar Nath, reference was made to the evidence adduced by the latter. A.W.1 Jiwan Nath testified that on 26th March 1974, the assembly of Mahants and others in Pehowa appointed Kidar Nath as successor of Puran Nath. With regard to the custom relating to the appointment in question A. W. 1 said that it was done by the Sadhus and approved by the Tehsildar. Similarly Labh Chand A W. 3 deposed that after the death of Puran Nath there was an assembly in Pehowa and on that occasion (sic) Nath was made the Mahant of the Gaddi. It is pertinent that the testimony of this witness was not assailed in the cross-examination. Then Kidar Nath come into the witness-box as A W. 4. He first deposed to the brief history of his Gaddi in Pehowa including one of its branches the Shiv idol in question. Then he deposed that Puran Nath, the Mohtmim of the Shiv idol in Chandigarh, died on 24th March, 1974. After his death he (Kidar Nath), being the senior Chela of Puran Nath, was made the Mahant. Lastly he deposed that the lands attached to the Gaddi had been mutated in his name, but the sanction was lacking.
Before referring to the reasons for rejection of the evidence adduced by Kidar Nath, his Learned Counsel urged that no evidence at all was led in rebuttal. He also referred to the certified copy of the mutation sanctioned by the Tehsildar, on 21st July, 1974.
Thus the reason given by the trial Court that the appointment of Kidar Nath lacked approval of the Tehsildar stood vitiated. The other reason for rejection of evidence given was that A.W.2, Lal Chand, who (sic) elonged to the aforesaid village Pehowa, did not say about the assembly in which Kidar Nath was made the Mahant. Learned Counsel for Kidar Nath urged that A.W.2 was produced with the sole(sic) object of proving the Power of attorney. Exhibit P 1, to which A.W.2 was an attesting witness, executed by Puran Nath in favour of Kidar Nath. Without being conscious of the purpose for which A.W.2 was put into the witness-box, it cannot be said that the trial Court appreciated his evidence in rejecting the claim of Kidar Nath. On the other hand, surprisingly, the unassailad testimony of A W.1, Labh Chand, proving the fact in issue, was not appreciated at all inasmuch as just a passing reference to it was made in the impugned order. The next and the last reason for deciding issue No. 1 against Kidar Nath was that he did not state about the gathering of the villagers and the Sadhus. His Learned Counsel contended that, in the first place, the trial Court did not advert to the other material facts deposed to by Kidar Nath essentially proving his appointment as Mahant in the manner deposed to by A.W.1, in particular, and, in the second place, the scheme of the evidence was that A.W. 1 gave the full details as to Kidar Nath''s appointment, which remained unshaken in cross-examination. Then the testimony of A.W. 3 that after the death of Puran Nath there was an assembly in Pehowa and on that occasion Kidar Nath was made the Mahant of the Gaddi, was not at all assailed in cross-examination. These two witnesses having established the fact in issue, argued the Learned Counsel, it was not felt necessary to make Kidar Nath repeat the minutest detail. The salient facts were, of course, testified by him. Above all, Learned Counsel urged, there was neither any suggestion that someone other than Kidar Nath was appointed the successor of Mahant Puran Nath, nor has anyone so far come forward to so contend. In short, it is a case of unrebutted evidence.
12 For the above reasons, it cannot be said that the trial Court, as laid down in Jai Hirji Taraporevala''s case (supra), substantially appreciated the evidence and drew inference therefrom. Its conclusion, therefore, is open to challenge and not binding upon this Court. The decision of issue No. 1 is accordingly reversed and I hold that Kidar Nath has proved his appointment as the successor of Mahant Puran Nath.
Issue No 2, as mentioned above, reads: Whether the applicant (Kidar Nath) is entitled to represent Plaintiff No. 1. The trial Court wholly misunderstood the legal aspect of this issue. It approached the subject by observing " The applicant seeks to represent Plaintiff No. 1 (Shiv idol) in his capacity as legal representative of Plaintiff No. 2 who instituted the present suit in his capacity as the Mohtmim of Plaintiff No. 1. The trial Court further observed that since Kidar Nath failed to prove that he was the legal representative of Plaintiff No. 2 (Puran Nath), therefore, the right to sue did not survive to him. In consequence, the trial Court not only dismissed the application of Kidar Nath but also held that the suit abated.
It is apparent that the attention of the trial Court was not drawn to the well-established law that an idol is a juristic person. As laid down by their Lordships of the Supreme Court in Bishwanath and Another Vs. Shri Thakur Radhaballabhji and Others, even a worshipper can file a suit to protect the interest of the idol who is in the position of a minor. Learned Counsel for Kidar Nath, therefore, rightly urged that even if Kidar Nath had failed to prove that he was the duly appointed successor of Mahant Puran Nath then also he in his position of a Pujari, as accepted by the Defendants, would have been within his rights to prosecute the suit on behalf of the Shiv idol. Above all, urged the Learned Counsel that the Shiv idol being a juristic person, is not dead. Hence, how could there be abatement of the suit filed by the Shiv idol. In this regard Shashibushan Prasad Mishra and Another Vs. Babuji Rai and Others, may be cited with advantage. In that case, the tenants of a deity sued the contesting Defendants for declaration of their title and possession in respect of the suit lands on the allegation that the lands appertained to village Siripur Majrahia of which the deity was the proprietor. The deity, though not a necessary party, was joiner) as Defendant but no relief was claimed against it. After the dismissal of the suit, the appeal was filed in the Patna High Court, and the diety was made proforma Respondent. During the pendency of the appeal, the Plaintiff-Appellants were directed to pay costs for the appointment of the guardian-ad-litem of the deity within the prescribed time. As ordered by the High Court, the default in the payment of the costs resulted in the dismissal of the appeal against the deity without reference to the Bench. At the final hearing, the High Court held that in consequence of the dismissal of the appeal against the deity, the appeal abated against the contesting Defendant No. 18. Their Lordships of the Supreme Court held. " Clearly, the High Court was in error in holding that the appeal had abated either wholly or in part. None of the parties to the appeal had died and there was no question of the abatement of the appeal ". It will not be out of place to mention here Sadhu Charan Parija and Others Vs. Krishnamani Dei and Others, , in which all the shebaits of a deity instituted a suit for the recovery of a certain sum of money from their agent. During the pendency of the suit, one of the shebaits died. A Division Bench of the High Court expressed the view that since the suit was properly constituted at its inception the death of one of the shebaits before the decree did not have the effect of abating the suit inasmuch as the deity must in the circumstances of the case be deemed to have been substantially and sufficiently represented by the remaining shebaits.
In AIR 1933 75 (Privy Council) cited by Mr. Aggarwal, their Lordships laid down that alienation by Mahant of property belonging to mutt is good and effective for life time of such Mahant and adverse possession of alienee begins only on mahant''s death. In AIR 1935 44 (Privy Council) it was held (1) sale of property of a Math by a Mahant is voidable and the suit could be brought by the next Mahant within 12 years of the death of vendor Mahant and (2) where a person managing the affairs of an institution is treated as Mahant by all persons and the property stood entered in his name in the revenue records, he was entitled to recover the benefits accrued to the Math property held by trespassers. These two decisions of their Lordships of the Privy Council cited by Mr. Aggarwal are clearly distinguishable. For the foregoing reasons, the decision of the trial Court on issue No. 2 cannot be sustained. It is accordingly set aside and Kidar Nath is held to be entitled to represent Plaintiff No. 1 (Shiv idol).
In the result, I allow the revision petition, set aside the impugned order and remand the suit to the trial Court for decision according to law. The parties are left to bear their own costs and directed to appear in the trial Court, after the winter break, on 14th January, 1976.