Patna High Court
Balak Das And Anr. vs Bhagwan Das Alias Bhagwan Bhagat And ... on 25 February, 1959
Equivalent citations: AIR1960PAT60, 1960CRILJ269, AIR 1960 PATNA 60, 1959 BLJR 407
ORDER H.K. Chaudhuri, J.
1. This application in revision is directed against an order dated 4-6-57 passed by Sri J. P. Gupta, a Magistrate of the first class at Gopalganj by which, in a proceeding under Section 145 of the C. P. C. he held opposite party Bhagwan Bhagat, who was second party in that proceeding, to be in peaceful possession of the di-sputed land and ordered him to continue in possession until ousted by a competent Court.
2. The dispute relates to three plots, bearing Nos. 594, 595 and 1457 in village Chanawe. At Turki in the district of Muzaffarpur there is an As-thai. Subordinate to this Asthal there are Asthals at different places, viz., Chanawe, Bhujali and Har-bansa. It is undisputed that all these Asthals are subordinate to the principal Asthal at Turki. One Narsingh Das was appointed Mahant of Turki Muth an 1937. It is beyond controversy that he was in possession of all properties attached to the principal as well as the subordinate Asthals. On 17-12-51 Narsingh Das executed a deed of nomination whereby he nominated petitioner Girjanandan Bhagat, one of his disciples, as his successor.
This was followed by another document dated 15-9-52, whereby Narsingh Das appointed Girjanandan Bhagat as Mahant of Turki and the subordinate Asthals. In due course, the name of Girjanandan Bhagat was mutated in Register D and in the landlord's Sarishta. The case of the petitioners is that Bhagwan Das, another disciple of Narsingh Das, had been deputed by the latter to look after the properties at Chanawe as his agent or Karinda. After the appointment of the petitioner No. 2 as the next Mahant Bhagwan Das is said to have shown hostility towards him as a result of which there were several litigations between them. Eventually Girjanandan Bhagat deputed Balak Das, petitioner No. 1, to Chanawe Muth to look after the properties there as his agent in place of Bhagwan Das. This led to friction and eventually the present proceeding under Section 145 was drawn up.
3. The opposite party No. 1 denied that the petitioner No. 2 had been appointed the Mahant of Turki. He claimed that after the abdication of Narsingh Das he himself was selected 'Mahant of Turki Mutb. He contends that he has been in possession of these properties on his own account.
4. The learned Magistrate, on a consideration of the materials on the record, came to the conclusion that it was Bhagwan Das who was in possession of the property. He further held that the petitioner's case that Bhagwan Das was in possession of the properties as his Karinda was unacceptable. On these findings he made the rule absolute against the petitioners. Against this order the petitioners preferred an application in revision before the Sessions Judge. The learned Additional Sessions Judge of Saran, who heard the application, declined to interfere with the order holding that the points urged by the petitioners did not justify reference of this case to this Court.
5. Mr. J. N. Verma appearing for the petitioners has urged two points. In the first place, he has contended that the property not having been clearly specified in the proceeding the order of the learned Magistrate is unenforceable on the ground! of vagueness and uncertainty. The next point urged by him was that even accepting the finding of the learned Magistrate as regards opposite party Bhag-wan Das being in actual physical possession of the property the court should have held that his possession was permissive and could not give him a locus standi as against his principal, viz., the Mahant of Turki.
6. So far as the first point is concerned, it appears that the police report stated the area of the disputed plots as eight bighas. The total area of these three plots, according to the record-of-rights, is 22 bighas, 17 kathas and 1 dhur. The contention of learned counsel is that as it is not clear which specific portion but of this area of 22 bighas 17 kathas and 1 dhur is in dispute there is likely to be considerable difficulty in enforcing the order of the learned Magistrate. I do not accept this contention as correct.
It is true that the boundary of the plots or the area in dispute in each plot has not been specifically mentioned in the proceedings. The proceedings, however, state that the dispute is in respect of all the three plots which would mean that the entire area of each plot is the subject-matter of this case. Although the police report was in respect of only eight bighas the Subdivisional Magistrate, who instituted the proceedings, had full jurisdiction to include a larger area as die subject-matter of this case. I do not, therefore, think that the order of the learned Magistrate is unenforceable on the ground of vagueness or uncertainty.
7. The second contention of the learned counsel, however, is more substantial. The materials on the record undoubtedly show that Bhagwan Das has been managing the properties and has been in actual physical possession of the properties attached to the subordinate Muth at Chanawe for the last eighteen or twenty years. The question for determination, however, is in what capacity he has been in possession of these properties. The learned Magistrate came to the finding that there was nothing to indicate that Bhagwan Das was holding these pro-perties as the Karinda of the Muth of Turki. In coining to this conclusion the learned Magistrate has obviously overlooked a very important document out which learned counsel for the petitioners has relied. This document is the plaint of title suit No. 87 of 1953.
This was a suit instituted by Bhagwan Das as the Chela of Narsingh Das against petitioner Gir-janandan Bhagat and Narsingh Bhagat in the court of the Subordinate Judge at Muzaffarpur. In paragraph 3 of the plaint it is stated that properties, movable and immovable, are attached to the subordinate Asthals and that the Mahant for the time being of the Sadar Asthal at Turki is the Mahant of all the subordinate Asthals and has legal charge and possession of all the properties attached to them although the properties appertaining to each of the said subordinate Asthal are managed by his Chelas.
It is next stated that the plaintiff, that is to say, opposite party Bhagwan Das was appointed manager of the subordinate Asthal at Chanawe in order to supervise the management of the properties. After referring to the deed of nomination dated 17-12-51 executed by narsing Das the opposite party further stated that thereafter the aforesaid Narsingh Das executed another deed of surrender dated 15-9-52 in favour of the petitioner No. 2 whereby he abdicated from the Gaddi of mahantship in favour of the defendant first party. It is thus clear that it was the admitted ease of Bhagwan Das that the petitioner No, 2 had been installed as the Mahant of Turki Muth to which Chanawe Muth was subordinate.
There was another recital to the effect "that the defendant first party (petitioner No. 2) is in posses-sion of the asthal at Turki and is in possession of the properties attached to it." In other words, the case of the opposite party then was that the petitioner No. 2 as the Mahant succeeding Narsingh Das had come in possession not only of the properties attached to the principal muth but also of the properties attached to the subordinate Muths. The relief claimed by the opposite party No. 1 was that it be declared that he being the seniormost Chela of Narsingh Das was entitled to succeed to the office of Mahant of the Asthal at Turki in the vacancy caused by the abdication of the latter.
A further relief was asked for to the effect that the petitioner No. 2 had acquired no right to the office of Mahant by virtue of the aforesaid deed of surrender in his favour. Another relief asked for was that defendant first party, that is to say, the petitioner No. 2 be ousted from the office of Mahant and the opposite party No. 1 be put in possession thereof. This suit was eventually compromised between the parties on 21-4-54. In that compromise the opposite party stated that he would not prosecute the suit. The suit was accordingly dismissed on compromise.
8. From the averments made in the plaint it is quite clear that even in 1934, that is, two years after the appointment of Girjanandan Bhagat the admitted position was that Chanawe Muth was a Muth subordinate to the principal Muth at Turki, that Bhagwan Das was managing the Chanawe properties for and on behalf of the Mahant of Turki and that Girjanandan, rightly or wrongly a question which in future will be decided by a competent court, if necessary, had been installed as the Mahant) of Turki. If this was the position in 1954 the question arises whether there was any change of circumstances at any time later on. The learned Magistrate has failed to apply his mind to this aspect of the case. He appears to have been carried away by the fact that Bhagwan Das was in physical possession for a long time. This is what the learned court observes :
"Admittedly the 2nd party is in possession. No matter as Karinda since over twenty years."
The rent receipts which, significantly enough, are marfati receipts, Bhagwan Das's correspondence with the Board of Religious Trusts, the choulddari receipts, the cane survey sheets, the gate sale receipts and other papers relied upon by the learned Magistrate while undoubtedly proving the actual possession of Bhagwan Das, are not inconsistent with his position : as manager on behalf of the principal Muth at Turki. There is nothing to indicate that he carried on correspondence with the Board of Religious Trusts in his capacity as a full-fledged owner to the knowledge of the authorities at Turki.
9. Bhagwan Das has challenged the genuineness of the compromise petition on the ground of Fraud. He asserts that after the compromise he was duly installed as the mahant of Turki. These, however, are matters' which cannot be gone into jn the present proceeding.
10. I am satisfied from the materials that although Bhagwan Das was in possession of the disputed lands his possession in law amounts to permissive possession as agent. In Bajirao v. Mt. Dadi-bai, AIR 1926 Nag 286 it has been observed that the possession of an agent or a servant which is permissive cannot give him a locus standi as against his principal or master in a proceeding under Section 145. The possession that can be pleaded in a proceeding under Section 145 must be possession based on a claim of right to possession. The learned Magistrate has himself held that the petitioner No. 2 prima facie has a better title. Having regard to the admissions made in the plaint and the other documents, referred to, I have no doubt that the petitioner No. 2 is in possession of the disputed lands through his agent Bhagwan Das. This possession of the petitioner must therefore be confirmed.
11. The order of the learned Magistrate dated 4-6-57 is accordingly reversed and instead I direct the petitioners to be put in possession of the disputed plots, the total area of which is 22 bighas 17 kathas and 1 dhur, until evicted therefrom in due course. The opposite party are prohibited from creating any disturbance in such possession until eviction.