Allahabad High Court
Mahant Basant Kumar Giri vs Jagrup Giri And Anr. on 20 August, 2007
Equivalent citations: 2008(1)AWC437
Author: Tarun Agarwala
Bench: Tarun Agarwala
JUDGMENT Tarun Agarwala, J.
1. The plaintiff filed a suit for a declaration alleging that there is Chandreshwar Nath Math in Ballia which has a lot of properties and temples within and outside the math. The mahant looks after the math and its properties. The last mahant was one Narwadeshwar Giri, who died on 18.9.1964. The plaintiff alleged that the mahantship of the math is given to the chela appointed -by the mahant, as per the customs and according to Hindu Dharmshastra. The plaintiff contended that Narwadeshwar Giri initiated the plaintiff as his chela 37-38 years ago and that a proper ceremony was performed. Since then, the plaintiff was performing the pooja, etc. in the math. On the death of Narwadeshwar Giri, the plaintiff performed the last rites, and thereafter, succeeded as the mahant and started managing the math and its properties. The plaintiff alleged that the defendant No. 1, Ramagya Giri was inimical to the plaintiff and had set up several persons to usurp the property of the math. The defendant, Ramagya Giri filed Suit No. 32 of 1972. So far as the defendant No. 2 was concerned, the plaintiff alleged that he also started claiming to be the chela of Narwadeshwar Giri and also started claiming to be the mahant of the said math and filed O.S. No. 92 of 1974 which was also dismissed on 3.7.1991. The plaintiff alleged that Basant Kumar Giri, defendant No. 1 started interfering in the possession and management of the math of the plaintiff with effect from 24.7.1984. The said defendant alleged that he was the chela of Ramagya Giri and was entitled to become the mahant of the math. Consequently, the plaintiff filed a suit for a declaration praying that he should be declared to be the chela of Narwadeshwar Girl and that he was in possession over the math and its properties. The plaintiff, in the alternative, also prayed that in the event, he was found to be out of possession, he may be given possession after evicting the defendants.
2. The defendant No. 1, Basant Kumar Giri resisted the suit alleging that he is the chela of Ramagya Giri and is in possession of the math and its properties. The plaintiff denied that the plaintiff was the chela of Narwadeshwar Giri and denied that the last rites of Narwadeshwar Giri was performed by the plaintiff. The said defendant contended that Ramagya Giri was the chela of Narwadeshwar Giri and upon the death of Narwadeshwar Giri, he became the mahant and came in possession of the properties of the math. The defendant further contended that Ramagya Giri died in 1978, and thereafter, his uncle (Mama), Kailash Giri was managing the property on his behalf and that upon attaining the age of 18 years, the defendant took over the charge of the management of the math, as the mahant. The defendant further claimed that the suit was barred by time.
3. The defendant No. 2, Angad Giri also alleged that the plaintiff was not the chela of Narwadeshwar Giri and that he alone was the chela of Narwadeshwar Giri hence, he was liable to become the mahant of the math. The defendant also alleged that the suit was barred by time and that he had filed original suit No. 122 of 1974 praying that he should be made the mahant upon the death of Narwadeshwar Giri. The defendant further contended that against the dismissal of the suit, a first appeal was filed which is pending, and therefore, the suit was liable to be stayed under Section 10 of the C.P.C. till the final disposal of the first appeal.
4. On the basis of the pleadings, the trial court framed several issues and after considering the evidence brought on the record, decreed the suit of the plaintiff. The trial court held that the suit was not liable to be stayed under Section 10 of the C.P.C, inasmuch as, the Court in O.S. No. 122 of 1974 held that Angad Giri was not the chela of Narwadeshwar Giri, and that he was not entitled to become the mahant. The trial court, however, did not decide the issue as to whether the plaintiff Jagrup Giri or the defendant, Ramagya Giri was entitled to become the mahant of the math. The trial court further found that the suit was not barred by limitation. The trial court further held that the plaintiff was the chela of Narwadeshwar Giri, and succeeded as the mahant of the math and was in possession of the properties of the math and was further entitled to get possession of those properties which was in the possession of Basant Kumar. The trial court found that O.S. No. 45 of 1972 filed by Ramagya Giri against the Gaon Sabha was not binding upon the plaintiff as he was not a party in that suit and that the compromise decree in the said suit was obtained by fraud and collusion. The trial court further found that the decision of the consolidation authorities could not be taken into consideration, in view of the judgment of the High Court dated 20.9.1971 passed in Writ Petition No. 4060 of 1969, wherein the High Court held that the consolidation authorities had no right to hold or decide the question as to who would be the chela of Narwadeshwar Giri and that, this question could only be decided by a competent civil court. The trial court also found that the suit filed by Ramagya Giri against the plaintiff in O.S. No. 32 of 1972 was dismissed in default on 3.1.1977. The trial court further found that Ramagya Giri was never in possession of the property of the math nor succeeded as the mahant upon the death of Narwadeshwar Giri as he was not living in the math between the years 1961 to 1971 and during this period, Ramagya Giri was unaware of the death of Narwadeshwar Giri. The trial court further found that Angad Giri, defendant No. 2 had never claimed to be the chela of Narwadeshwar Giri prior to 1974. Further, the defendant No. 1, Basant Kumar Giri, nowhere stated, as to when, he was made a chela of Ramagya Giri. The trial court further concluded that even defendant No. 1 was never in possession of the property of the math after the death of Ramagya Giri inasmuch as, upon the death of Ramagya Giri, the uncle of defendant No. 1, namely, Kailash Giri was looking after the property. The trial court, further found that Ramagya Giri was not a sanyasi and had links with his family members and that the defendant No. 1, Basant Kumar Giri was the grandson of Ramagya Giri. Consequently, the trial court held that Ramagya Giri was not the chela of Narwadeshwar Giri. The trial court, after considering the voters list of 1950, 1960, the khatauni and the land revenue receipts, came to the conclusion, that the plaintiff was not only the chela of Narwadeshwar Giri but was also in physical possession of the properties of the math and that his name was recorded in the revenue records. The voters list indicated that he was the son of Narwadeshwar Giri. Further the trial court found that the chela ceremony was duly performed and was proved by the witnesses and that the plaintiff performed the last rites of Narwadeshwar Giri. The trial court further concluded that Basant Kumar Giri was not in adverse possession of a property of the math and that, in fact, the plaintiff was in possession. Consequently, the trial court decreed the suit.
5. Aggrieved by the aforesaid decree, the defendant No. 1 filed an appeal which was also dismissed. The appellate court confirmed the findings of the trial court and held that the plaintiff was the chela of Narwadeshwar Giri and that the chela ceremony was duly proved by the plaintiff and by the witnesses. The lower appellate court further found that the plaintiff was in possession of the majority of the properties of the math and that the name of Ramagya Giri was entered in the revenue records on the basis of a collusive suit No. 45 of 1972 filed by Ramagya Giri against the Gaon Sabha, in which the plaintiff was not a party. The lower appellate court observed that the suit was filed on 12.2.1972 and was decreed on 18.2.1972 within a week. The lower appellate court further found that till 1971, Ramagya Giri was never in the picture and was not in possession of the properties of the math nor was he the mahant of the math and that Ramagya Giri filed Suit No. 32 of 1972 against the plaintiff which was dismissed on 3.1.1977. The lower appellate court further found that the plaintiff had only stated that only a small portion of the property of the math was taken by Ramagya Giri through a collusive decree. The lower appellate court further found that no evidence had been filed to show that defendant No. 1 was initiated as a chela of Ramagya Giri. The lower appellate court further held that Basant Kumar was the grandson of Ramagya Giri and that Ramagya Giri had not severed his relationship with his family members, consequently he was never a sanyasi.
6. Aggrieved by the aforesaid judgment of the lower appellate court, the defendant filed the present second appeal which was admitted on the following substantial questions of law, namely:
1. Whether it had been held in O.S. No. 122 of 1974 inter parties that the valuation of the property in dispute was more than Rs. 20,000 this decision was res judicata between the parties?
2. Whether at any rate, the plaintiff Jagrup Giri was not an heir under the Hindu Succession Act. 1956 (which replaced all rules and custom) and the suit ought to have been dismissed?
3. Whether the clear admission of Jagrup Giri has been misread and misconstrued ; the context fortifying the plain meaning, and has been discarded for no reason in law?
4. Whether the suit for possession of the office of mahantship was barred by Articles 107 of the Limitation Act, 1963, it was also barred under Articles 64-65 of Limitation Act, 1963, more so as the office of mahantship is immovable property under the Hindu Law?
5. Whether the suit for declaration is also barred under Article 58 of the Limitation Act, 1963 as the cause of action arose on the decisions dated 20.9.1971 or latest on 20.11.1978 in the writ petitions?
7. Heard Sri V.K.S. Chaudhary, the learned senior counsel for the defendant- appellant and Shri Shiv Ram Singh, the learned Counsel for the plaintiff/opposite party. No one has appeared on behalf of the defendant No. 2, Angad Giri.
8. The learned senior counsel for the appellant submitted that pursuant to the decree in Original Suit No. 45 of 1972, Sri Ramagya Giri was in possession of the entire properties of the math and that his name was duly entered in the revenue records of the entire properties of the math. The fact that he was in possession of the entire properties of the math was admitted by the plaintiff in his deposition which the lower appellate court had misread to mean that Ramagya Giri only took possession of a portion of the property on the basis of the compromise decree. The learned Counsel for the appellant further submitted that the possession of the property of the math proved that Ramagya Giri was in control of the hereditary office, and therefore, submitted that the possession of a property of the math indicated that Ramagya Giri was the mahant of the math.
9. In support of his submission the learned senior counsel for the appellant placed reliance upon a decision of the Supreme Court in the Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swaminar of Sri Shirur Mutt , in which it was held:
Thus in the conception of mahantship, as in shebaitship, both the elements of office and property, or duties and personal interest are blended together and neither can be detached from the other. The personal or beneficial interest of the mahant in the endowments attached to an institution is manifested in his large powers of disposal and administration and his right to create derivative tenures in respect to endowed properties ; and these and other rights of a similar character invest the office of the mahant with the character of proprietary right which, though anomalous to come extent, is still a genuine legal right. It is true that the mahantship is not heritable like ordinary property, but that is because of its peculiar nature and the fact that the office is generally held by an ascetic, whose connection with this natural family being completely cut off, the ordinary rules of succession do not apply.
As said above, the ingredients of both office and property, of duties and personal interest are blended together in the rights of a mahant and the mahant has the right to enjoy this property or beneficial interest so long as he is entitled to hold his office. To take away this beneficial interest and leave him merely to the discharge of his duties would be to destroy his character as a mahant altogether.
10. The learned senior counsel also placed reliance upon a decision of the Supreme Court in Ram Rattan (Dead) by legal representatives v. Bajrang Lal and Ors. , which is quoted hereunder:
In the conception of shebait both the elements of office and property, duties and personal interest are mixed up and blended together and one of the elements cannot be detached from the other.
11. The learned senior counsel for the appellant further submitted that the suit was barred by limitation which began to run when the plaintiff was dispossessed in the year 1972 pursuant to the compromise decree, when the name of the Ramagya Giri was entered in the revenue records and which fact has been admitted by the plaintiff. In any case, the High Court in the year 1978, vide judgement dated 20.11.1978 passed in Writ Petition No. 1980 of 1972, held that the parties were required to seek a declaration with regard to the mahantship before a competent civil court. Consequently, the suit, having been filed in the year 1984, was barred under Articles 107 as well as under Articles 58, 64 and 65 of the Limitation Act.
12. In support of his submission, the learned senior counsel placed reliance upon a decision of the Supreme Court in Balakrishna Savalram Pujari Waghmare and Ors. v. Shree Dhyaneshwar Maharaj Sansthan and Ors. , wherein the Supreme Court held It is clear that before this Article can apply it must be shown that the suit makes claim for possession of an office which is hereditary ; and the claim must be made against the defendant who has taken possession of the said hereditary office adversely to the plaintiff. Unlike Article 142 the fact that the plaintiff is out of possession of the hereditary office for more than twelve years before the date of his suit would not defeat his claim for possession of the said office. What would defeat his claim is the adverse possession of the said office by the defendant for the prescribed period. As the explanation makes it clear usually the receipt of the profits may amount to the possession of the office ; but if the defendant merely receives the profits but does not perform the duties which are usually performed by the holder of the office, the receipt of the profits by itself may not amount to the possession of office. The cause of action for possession in suits falling under Article 124 is the wrongful dispossession of the plaintiff and the adverse possession by the defendant of the office in question. Claims for possession of hereditary offices which attract the application of this Article are usually made by holders of the said offices against persons who claim adverse possession of the said office ; in other words, in suits of this kind, the contest is usually between rival claimants to the hereditary office in question.
13. The learned Counsel further submitted that in Original Suit No. 122 of 1974, the issue with regard to the valuation of the suit was decided and it was found that the suit was valued at more than Rs. 20,000. Consequently, the present suit, based on the same property, was required to be valued at more than Rs. 20,000. Consequently, the first appeal could not be heard by the District Judge, as it had no jurisdiction, in view of the fact, that the District Judge could only hear the appeals, where the valuation was less than Rs. 20,000. The learned Counsel also made a feeble attempt and submitted that after the promulgation of the Hindu Succession Act, 1956, the succession of property was governed under the provisions of Hindu Succession Act and that the property of a math could not be succeeded through appointment of a chela or by customs or usage.
14. On the other hand, Shri Shiv Ram Singh, the learned Counsel for the opposite party submitted that the courts below had given a categorical finding of fact holding that the plaintiff was the chela of Narwadeshwar Giri and was in possession of the properties of the math. The courts below further found that the plaintiff was initiated as the chela, which was also proved by various witnesses, and therefore, such findings of fact could not be reappraised or reconsidered in a second appeal. Further, the defendant-appellant, Basant Kumar was never in possession of any portion of the property till 1982. As per his statement, which was recorded in the year 1985, he alleged that he was 21 years old and that, after the death of Ramagya Giri in 1978, his uncle Kailash Giri was managing the property and that he took over the management of the property upon attaining the age of 18 years. Consequently, as per the statement of defendant No. 1, he was never in possession of the property till 1982. The learned Counsel further submitted that the cause of action arose in the year 1984 when the defendant started wielding his right on the management of the properties of the math. The suit was filed in the year 1984 and was within the period of limitation. In support of his submission, the learned Counsel placed reliance upon a decision in AIR 1941 Mad 81 ; AIR 1959 SC 798 ; AIR 1960 SC 335 and 1997 (1) JCLR 9 (SC).
15. Having heard the matter at length and having given my considerable thought in the matter, this Court is of the opinion that the defendant-appellant is not entitled for any relief. The contention of the learned Counsel for the plaintiff that Ramagya Giri was in possession of the entire properties of the math and that the plaintiff admitted this fact in his deposition is clearly misconceived. Further, the allegation that the lower appellate court had misread the statement of the plaintiff, is patently erroneous. This Court has perused the statement of the plaintiff and nowhere finds that the plaintiff had stated that Ramagya Giri was in possession of the entire properties of the math. From a perusal of the statement of the plaintiff, it is clear that Ramagya Giri had got his name entered in the revenue records, on the basis of the compromise decree in O.S. No. 45 of 1972 in khasra No. 55, in village Isari. Apart from the aforesaid finding of an entry in the name of Ramagya Giri, there is no finding that his name had been entered in the revenue record over other properties of the math. The plaintiff in his pleadings had indicated in the Schedule, a large number of the properties of the math in various villages. No proof has been filed by the defendant to indicate that Ramagya Giri's name was recorded in other properties of the math. Further, I find that Original Suit No. 45 of 1972 filed by Ramagya Giri was against the Gaon Sabha alleging that he became the mahant of the math after the death of Narwadeshwar Giri. In this suit, the plaintiff was not made a party, even though Ramagya Giri had earlier filed another Suit No. 32 of 1972 against the plaintiff, in which he alleged that the plaintiff Jagrup was alleging himself to be the mahant of the math. This Suit No. 45 of 1972 was filed on 12.2.1972 and was decreed on 18.2.1972. Both the courts below have given a categorical finding that the suit was a collusive suit and the decree was obtained by fraud which was not binding upon the plaintiff. In my opinion, the finding of the courts below does not suffer from any error of law. The compromise decree is null and void and is not binding upon the plaintiff.
16. The Supreme Court in the case of the Commissioner, Hindu Religious Endowments. Madras v. Sri Lakshmindra Thirtha Swaminar of Sri Shirur Mutt. , held that in the concept of mahantship, as in shebaitship, both the elements of office and property of duties and personal interest are blended together and neither could be detached from the other. The Supreme Court held that the mahant had a right to enjoy the property or beneficial interest so long as he was entitled to hold the office.
17. The Supreme Court in the case of Ram Rattan (Dead) by Legal Representatives v. Bajrang Lal and Ors. , again reiterated the aforesaid principle.
18. In view of the aforesaid, the court is of the opinion that Ramagya Giri was never in possession of the entire properties of the math. A mere entry in the revenue record of a single property of the math, could not lead to a presumption that Ramagya Giri had pervasive control of the hereditary office of the math. Further, the finding of the court below that he was never a chela of Narwadeshwar Giri and that the plaintiff had always been in possession and was the chela of Narwadeshwar Giri and took over as the mahant, upon his death, cannot be interfered in a second appeal. Consequently, the question of law, namely, that the admission of the plaintiff was misread by the lower appellate court is misconceived and is answered in negative.
19. The submission of the learned Counsel for the appellant that the suit for possession was barred under Article 65 and Article 107 of the Limitation Act and was also barred under Article 58 of the Limitation Act is patently erroneous. Article 107 applies for possession of hereditary office, the limitation is 12 years from the date when the defendant takes possession of the office adverse to the plaintiff. Similarly, Article 65 is for the possession of immovable property or any interest thereon based on title and the period of limitation is 12 years from the date when the possession of the defendant becomes adverse to the plaintiff. The learned Counsel submitted that admittedly the plaintiff was found to be out of possession as per the compromise decree dated 18.2.1972. 12 years from 18.2.1972 came to an end in February, 1984, whereas the suit was filed in the year July, 1984 after the period of limitation and, therefore the suit was barred by limitation.
20. In my opinion, the provisions of Articles 65 and 107 of the Limitation Act are not applicable. The suit is not of possession of the hereditary office but is for a declaration that the plaintiff should be declared to be the chela of Narwadeshwar Giri. According to Basant Kumar Giri, defendant No. 1. he took over the management from his uncle Kailash Giri in 1982. That is the stage of alleged interference in the affairs of the math by defendant No. 1. The plaintiff had never been dispossessed from the properties in question. Consequently, it cannot be said that the plaintiff had filed a suit for possession of the properties of the math.
21. In Annasami Aiyangar and Ors. v. Nithiyapadi Adivarachari and Ors. AIR 1941 Mad 81, it was held:
A person who is admittedly the lawful holder of an office and is enjoying its emoluments must in law be regarded as being in possession of the office itself, especially where no one else is performing the duties of the office. He has the right to bring a suit at any time when the performance of his duties is interfered with. But he is not bound to take action in case of interference if it does not suit him. He can abide his time until another occasion which would only give rise to another cause of action since at every time of interference there is a fresh wrong.
22. In Balakrishna Savalram Pujari Waghmare and Ors. v. Shree Dhyaneshwar Maharaj Sansthan and Ors. . the Supreme Court held:
It is clear that before this Article can apply it must be shown that the suit makes claim for possession of an office which is hereditary ; and the claim must be made against the defendant who has taken possession of the said hereditary office adversely to the plaintiff. Unlike Article 142 the fact that the plaintiff is out of possession of the hereditary office for more than twelve years before the date of his suit would not defeat his claim for possession of the said office. What would defeat his claim is the adverse possession of the said office by the defendant for the prescribed period. As the explanation makes it clear usually the receipt of the profits may amount to the possession of the office ; but if the defendant merely receives the profits but does not perform the duties which are usually performed by the holder of the office, the receipt of the profits by itself may not amount to the possession of office. The cause of action for possession in suits falling under Article 124 is the wrongful dispossession of the plaintiff and the adverse possession by the defendant of the office in question. Claims for possession of hereditary offices which attract the application of this Article are usually made by holders of the said offices against persons who claim adverse possession of the said office ; in other words, in suits of this kind, the contest is usually between rival claimants to the hereditary office in question.
23. Article 124 of the old Limitation Act, is paramateria to Article 107 of the Limitation Act, 1963.
24. In Mst. Rukhmabai v. Lala Laxminarayan and Ors. , the Supreme Court held:
The legal position may be briefly stated thus : The right to sue under Article 120 of the Limitation Act accrues when the defendant has clearly and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocally threatened to infringe the right asserted by the plaintiff in the suit. Every threat by a party to such a right, however ineffective and innocuous it may be, cannot be considered to be a clear and unequivocal threat so as to compel him to file a suit. Whether a particular threat gives rise to a compulsory cause of action depends upon the question whether that threat effectively invades or jeopardizes the said right.
25. In view of the aforesaid, this Court is of the opinion that the suit of the plaintiff was not barred either under Articles 58, 65 or 107 of the Limitation Act. Consequently, the questions of law framed in this regard are also answered in the negative.
26. The submissions that since the suit was valued at more than Rs. 20,000 in Original Suit No. 122 of 1974, and therefore, the first appeal could not be heard by the District Judge, is patently erroneous. It has nowhere come on record that the properties mentioned in O.S. No. 122 of 1974 was the same as mentioned in the present suit. Consequently, the finding with regard to the valuation in Original Suit No. 122 of 1974 was neither binding nor operates as res judicata between the parties. The questions of law is again answered in the negative.
27. A feeble attempt was made by the learned Counsel for the appellant contending that the plaintiff Jagrup Giri could not become the heir of Narwadeshwar Giri under the Hindu Succession Act, and therefore, the suit should have been dismissed.
28. In the Commissioner, Hindu Religious Endowments, Madras v. Sri Lakshmindra Thirtha Swaminar of Sri Shirur Mutt , the Supreme Court held:
It is true that the mahantship is not heritable like ordinary property, but that is because of its peculiar nature and the fact that the office is generally held by an ascetic, whose connection with this natural family being completely cut off, the ordinary rules of succession do not apply.
29. In view of the aforesaid, it is clear that the ordinary rules of succession would not apply to the case of the mahantship. The question of law is also answered in the negative.
30. In view of the aforesaid, this Court finds that the second appeal is bereft of merit and is dismissed with cost.