Authored By : Kamal Chunder Chunder, Rupendra Coomar Mitter

Kamal Chunder Chunder, J.

1. This appeal is against a decree of the Subordinate Judge,First Court, 24-Parganas, dismissing a suit brought by the plaintiffs asworshippers of Badrikanath Shiva Thakur for a declaration that the lands ofschedules Ka Kha of the plaint in that suit were the properties of theHarashiva Math and the deity and that the certificate sale for arrears of roadcess in certificate case No. 612 of 1902-1903 did not affect the right, titleand interest of the deity. At the appellate stage the facts are not very muchin dispute. The religious foundation is a very old one and the propertiesmentioned in the schedules to the plaint were released by the Board of Revenuein favour of the deity as far back as 1827 and accepted as Niskar orrevenue-free property.

2. Before the learned Subordinate Judge there was acontention that the religious foundation was a Mutt, the head of which was aMohunt. This contention was given up before the learned Subordinate Judge andit was conceded that the property belonged to the idol and the head of theinstitution was the shebait thereof. Owing to historical reasons a cleardistinction has come to exist regarding properties which belong to what istechnically called a Mutt of which the head is the Mohunt who is the owner ofthe property. Very often there is an idol attached to the Mutt but it is morean adjunct to the Mutt for religious worship by disciples and the idol in sucha case is not the owner of the Mutt property. In the other case the idol itselfowns the property of the religious foundation and the shebait is the Manager ofthe property and represents the idol. As it is no longer disputed that theproperty in suit belonged to the idol, we need not discuss the question as towhat the case would have been had it been the property of the Mohunt of a Mutt.

3. The properties mentioned in schedule Ka to the plaintcomprise 14 bighas 3 cottahs and 1 chhataks of land with the temple and thebuildings which used to be possessed in Khas; Schedule Kha comprises 506 bigbas5 cottahs and 14 chhataks of laud which are tenanted. The two together formedthe Niskar Bahali lands No. 38B previously and now No. 38B/1, AliporeCollectorate. It appears that the shebait of the religious foundation hadcertain repairs done to the temple and was unable to pay for the same. In 1884Money Suit No. 249 of 1884 was brought in the 3rd Munsifs Court at DiamondHarbour by one Kshetra Nath Nath or Jugi against the then shebait Sree Ram Girifor costs of repair of the temple. It appears that the decree was purchased in thename of one Nabin Chandra Chatterjee by Earn Krishna Banerjee, a Pleader ofAlipore. The decree was executed in three Execution cases Nos. 161 of 1886, 391of 1889 and 10 of 1891 and a total area of 77 bighas odd was sold in threeExecution sales and purchased by the executing decree-holder. It appears thatBistu Giri had then become the shebait of the deity. He started a Miscellaneouscase under S. 311, Civil P.C., for setting aside the last execution sale inwhich 24 bighas of land had been sold for Rs. 11. A compromise was effectedbetween Bistu Giri and Ram Krishna Banerjee on 4th September 1897. Bistu Girihad granted an ejara lease of 509 bighas 14 cottahs and 6 chhataks of land toNarendra Nath Sardar from Pous 1295 to 1309 B.S. at ah annual jama of Rs. 549.By the compromise it was agreed that Ram Krishna Banerjee would receive thisrent for the balance of the period of the lease which was still to run for afew years and Ram Krishna Banerjee would pay Rs. 20 per month to Bistu Giri forcarrying on the sheba of the deity. It was further agreed that in 1310 B.S.Bistu Giri would pay Rs. 200 to Ram Krishna Banerjee and then Ram KrishnaBanerjee would re-convey the auction-purchased property of 77 bighas odd toBistu Giri. It is now accepted that the payment by Bistu Giri was never madeand the auction-purchased property i.e., 77 odd bighas of land were neverre-conveyed. The title to the auction-purchased property remained with RamKrishna Banerjee. As the interest of Ram Krishna Banerjee was also sold in thesale in execution of the Certificate for arrears of cess in certificate caseNo. 602 of 1902-03, it is now conceded that no claim can be made by theplaintiffs with regard to this 77 bighas odd of land to which the Thakurstitle had been lost by the purchase of Ram Krishna. For the remaining lands ithas been contended by Mr. Mitter on behalf of the appellants that thecertificate sale did not pass any title to the property of the deity whichstill remained after the auction-purchase of Ram Krishna Banerjee in the MoneyExecution Case previously mentioned. His contention is that a shebait cannotdivest himself of his shebaitship and make it over to another person, aproposition of law with which we agree. The sale in the Certificate case was ofthe whole revenue-free property with Ram Krishna Banerjee as proprietor for 77odd bighas of land and for the rest Ram Krishna Banerjee was recorded as theManager of the Shiv Thakur. The contention appears to be based on an entiremisconception of what actually took place. It is, therefore, necessary for usto go into greater detail into the Certificate case itself.

4. It appears that on 2nd August 1901 Ram Krishna Banerjeefiled a petition for mutation of his name in respect of this revenue-freeproperty. It was registered as case No. 276 of 1901-02. His petition is Ext.R(6). In that petition he gave the nature of his interest as 77 bighas 11cottahs and 5 chhataks by right of auction, purchase and the rest as jointproprietor in charge and he wanted his name to be recorded for his own share asowner and for the rest as joint proprietor in charge. In that case, Bistu Giriwas examined by the Collector. In the enquiry under S. 52, Bengal LandRegistration Act, his deposition is Ex. (9). Bistu Giri admitted therein:

The revenue-free property No. 38B is now in the possessionof Babu Ram Krishna Bandopadhya. He has proprietary right in it to the extentof 4 as and is manager of the remaining 12 as. He is in possession from 1304B.S., by virtue of a solenama which we filed in the Court of the 3rd Munsif ofDiamond Harbour. I get Rs. 20 per month from Ram Krishna Babu for Deb Sheba. Ihave no claim to khas possession at present.

His evidence will show clearly that he had not transferredhis shebaitship to Ram Krishna Banerjee; on the other hand, provision was madeby him to carry on the Deb Sheba himself. It was as joint proprietor in chargeand in possession of the property that Ram Krishna Banerjee was being recordedas Manager under the Bengal Land Registration Act. The Collector, therefore byhis order dated 17th October 1903 directed

Register applicants name in place of the former proprietorBadrikanath Thakur and Ram Krishna Banerjee for self and as Manager of theThakur.

Under S. 42, Bengal Land Registration Act, a jointproprietor of an estate or revenue-free property assuming charge of the estateor property or of any interest therein on behalf of other proprietors can claimto be recorded for such other proprietors. Then provision is made for notice toother interested parties and then under S. 52, the Collector holds an enquiry.In the enquiry, the Collector will ascertain the truth of the allegedpossession and if he is satisfied the Collector shall order the name of theapplicant to be registered in the proper register as proprietor or manager ofthe said estate, or revenue-free property or interest therein."Manager" has been defined in S. 3, cl. 6 of the Act thus:

Manager, means every person who is appointed by theCollector, the Court of Wards or by any Civil or Criminal Court to manage anyestate or revenue-free property, or any part thereof, and every person who isin charge of an estate or revenue-free property, or any part thereof, on behalfof a minor, idiot or lunatic or on behalf of a religious or charitablefoundation.

In 1906, the words "or as a trustee or executor"were added to the definition. The application, as we have stated, was previousto this amendment. So, Ram Krishna Banerjee in accordance with the definitionin the Act as it then stood was recorded as proprietor for his own share and ashe was found in the enquiry under S. 52 of the Act to be joint proprietor incharge of the remaining share of the revenue-free property on behalf of thereligious foundation, he was recorded as Manager for the share of the Thakur.He was, therefore, rightly recorded in the Collectorate D Register in place ofthe original proprietor of this part as Manager of the religious foundation,viz., the deity Shiv Thakur, This was not a transfer or alienation of theshebaitship by the Mohunt. It only meant that Ram Krishna became the solerepresentative before the Collector of the Thakurs share by virtue of thestatute for the purposes of payment of the public dues etc Under S. 68 of theAct, he became responsible for the payment of the public dues not only for hisown share but also for the share of the Thakur as its sole representative inthe Collectors register and when he failed to pay the road cess due from theentire revenue-free property, Certificate Case No. 612 of 1902/03 was startedand when on 24th February 1903 a sale in execution of the certificate was heldthe right, title and interest in the entire revenue-free property passed to thepurchasers. Ram Krishna Banerjee was the proprietor with respect to his ownshare and the properly recorded Manager and the sole representative liable tothe Collector for payment of the road cess due with respect to the share ofShiv Thakur. The 16 as interest in the entire property was sold and purchasedby Krishna Kalyani Dassi in the benami of her son, Jatindra Nath Mitter. It isnot contested that Krishna Kalyani was given symbolical possession on 14th June1903. Since then, purchaser and her successor-in-interest have never beenaltogether out of possession. On the 4th Aswin, 1311 B.S., that is in September1904, Krishna Kalyani Dassi sold this revenue-free property to Baroda ProsadRay Choudhuri for Rs. 6000. It appears that after 1809 B.S. when Narendra NathSardars ejara previously spoken of had expired Bistu Giri had granted a freshejara for 12 years to him in continuation of his previous ejara and Bistu Girihad died on 4th March 1904. It appears that Baroda was actually in possessionof a part of the property and be subsequently purchased the interest of NarendraNath Sardar in the ejara in 1910.

5. It will appear from the Land Registration proceedings andthe certificate proceedings and the sale held in execution of the certificatethat the right, title and interest of Ram Krishna Banerjee as well as of Shiv Thakurhad passed to the purchaser from whom Baroda had obtained his title. Therefore,in the present case as the successors in interest of the rightful owner thesuit was rightly dismissed against Baroda Prosad Choudhury and his legalrepresentatives. Question of adverse possession is not therefore very material.

6. As the learned Subordinate Judge has entered at lengthinto the question of adverse possession, we think it necessary to deal asbriefly as possible with the same. As far as the facts are concerned, itappears that after the purchase by Krishna Kalyani Dassi, Ram Krishna Banerjeehad taken steps before the superior Revenue authorities to have the sale setaside. He had failed. He had then come to the civil Court, but it appears thatsubsequently he gave up the civil suit. In 1906 one Krishna Giri brought titleSuit No. 50/60 of 1906 in the 3rd Court of the Subordinate Judge, 24 Parganas,claiming to be the Mohunt of the Shiv Thakur and claiming recovery of theproperty. It appears that the suit was decreed by the Subordinate Judge and anappeal was filed against the decree and, in the appellate stage, Krishna Giriwithdrew his suit with leave to bring a fresh suit. It further appears that in1916, one Biswa Natah Giri filed title Suit No. 18 of 1916 in the 4th Court ofthe Subordinate Judge, 24 parganas, claiming to be the Mohunt of the Thakur andpraying for recovery of possession of the property. The suit was dismissed bythe Subordinate Judge and an appeal was filed but was withdrawn. It appearsfrom the evidence discussed at length by the Subordinate Judge that BarodaProsad Ray Choudhuri was undoubtedly in actual possession of the entire revenuefree property since 1918. The learned Subordinate Judge has examined in detailthree kinds of evidence adduced, namely, the evidence on plaintiffs side, thedocuments, and the evidence on the defendants side. The conclusion arrived atby the learned Subordinate Judge that Baroda was in continuous actualpossession without interruption since 1918 has not been contested in this Courtby Mr. Mitter and in our opinion the evidence is so overwhelmingly strong thatit cannot be contested. The suit against him was filed on 6th February 1939,i.e. 21 years later.

7. Mr. Mitter contends that as Bistu Giri died on 4th March1901 and as there was no shebait after him, there was no one who had the rightto bring a suit and therefore limitation and adverse possession did not beginto run. He tried to support his contention by referring to the decision of theJudicial Committee in Maharaja Jagadindra Nath Roy Bahadur v. Rani HemantaKumari Dasi, reported in 31 I.A. 203 : (32 Cal. 129 P.C.) in which at p. 210 ofthe report, Sir Arthur Wilson said that "the right of suit is in theshebait and not in the idol". It must be noticed that before coming tothis decision it had been found as a fact by the Judicial Committee thatJagadindra was the actual shebait. He was found to have been a minor and thedecision proceeded upon the ground that he was the shebait and the right ofsuit was in the shebait and not in the idol and the shebait being a minor, hewas entitled to the benefit of S. 7 (now S. 6) Limitation Act. Mr. Mitter hasdrawn our attention to two decisions of the Madras High Court, one reported inKrishnama Chariar v. Chinmammal 18 I.C. (369) at p. 872 : (24 M.L.J. 192) butit does not help us very much, as a perusal of the decision will show that itis dealing with a different state of things in Madras brought about by theMadras Religious Endowment Act. The other decision is in Manikkam Pillai v.Thanikachalam Pillai, 34 I.C. 945 : (A.I.R. 1917 Mad. 706) in which a DivisionBench of the Madras High Court after referring to Jagadindras case (31 I.A.203 : 32 Cal. 129 P.C.), came to the conclusion that if there was no shebait tosue, no suit can be brought. The principle is well established that if there isreally no one who can bring a suit, limitation does not begin to run.Jagadindras case, (31 I.A. 203 : 32 Cal. 129 P.C.) on which Mr. Mitter reliesand which without discussion seems to have been accepted in the Madras decisionin Manikkam Pillai v. Thanikachalam Pillai, 34 I.C. 945 : (A.I.R. 1917 Mad.706) has been examined many times in this Court. It is now clear from a seriesof decisions of this Court that where there is a shebait in existence, right ofsuit is in the shebait and no one else can bring a suit on behalf of the idol.The idol is a juridical person and has the right to sue, but it is a person inan ideal sense, and the suit has to be brought through some representative.Where there is a proper representative, namely, the shebait, in existence, heis the only person competent to sue on behalf of the idol, unless, his interestis adverse to that of the idol, or because of quarrels and conflicts betweenthe different shebaits, or because the wishes of the deity with respect to aparticular course of action have to be separately ascertained, some otherperson is to be appointed by the Court to represent the idol. Jagadindrascase: (31 I.A. 203 : 32 Cal. 129 P.C.) as we have pointed out proceeded uponthe basis that there was a shebait in existence. In the present case therehaving been no shebait it was open to any person interested in the foundationto bring a suit as the next friend of the idol with the permission of the Court(Reference may be made to the decision reported in Administrator General ofBengal v. Balkisen Misser, : 51 Cal. 953 : (A.I.R. 1925 Cal.140) which appears to be the earliest case and Jyoti Prasad v. Jahor : Lal 49 C.W.N. 37 : (A.I.R. 1945 Cal. 268) [LQ/CalHC/1944/90] , from page 47 where all the othercases are collected, referred to and discussed). There is, therefore, no forcein the contention urged by Mr. Mitter that limitation and adverse possessiondid not begin to run as there was no one who could sue. The idol was there.Limitation also runs against the idol. The idol has the right to sue and such asuit could be brought in the name of the idol by a next friend with thepermission of the Court. The claim of the Thakur, therefore, to the property,had no title passed, would be long barred.

8. The learned Subordinate Judge had also dismissed the suitof the plaintiffs on the ground that S. 42, Specific Relief Act, would notapply as plaintiffs could ask for consequential relief. It is now clear that asuit can be brought by worshippers for a declaration of this nature. Referencemay be made to Monindra Mohan v. Sham Nagar Jute Factory Co. Ltd.,: 43 C.W.N. 1056 : (A.I.R. 1939 Cal. 699) [LQ/CalHC/1939/155] . The learnedSubordinate Judge was of the opinion that the plaintiffs should have asked forthe appointment of a Mohunt and made a prayer for an order for restoration ofthe property to the Mohunt. He did not notice that such a prayer would be hitby S. 92, Civil P.C., and, therefore, in the present case no consequentialrelief could be prayed for. The learned Subordinate Judge was wrong in holdingthat the present suit could not be entertained under S. 42, Specific ReliefAct. But as we have said, the defendants have acquired valid title from thepurchaser at the certificate sale and any claim of the Thakur for recovery ofpossession is clearly barred, the learned Subordinate Judge was right indismissing the suit of the plaintiff. The decree being right is confirmed andthe appeal is dismissed with costs.

Rupendra Coomar Mitter, J.

9. I agree.

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Monmohan Haldar and Ors. vs. Dibbendu Prosad Roy Choudhuryand Ors. (06.08.1948 - CALHC)