Letters Patent Appeal No.603 OF 1998 ( Against judgment dated 19.3.1998, passed by Hon‟ble Mr. Justice Radha Mohan Prasad, in First Appeal No.301 of 1977.) ****** INDU THAKUR & ORS. …………………Appellants Versus THE BIHAR STATE BOARD OF RELIGIOUS TRUST THROUGH ITS PRESIDENT & OTHERS …Respondents ******** For the Appellant Nos.1 to 8 : Mr. Raghubansh Prasad Singh Senior Advocate For Intervenor Appellants Nos. 9 to 12 : Mr. Amarendra Nath Verma For Respondent No.1 : Mr. Shekhar Singh For Respondent Nos.2 & 3 : Mr. R K P Singh ********* P R E S E N T THE HON'BLE MR. JUSTICE S.K.KATRIAR THE HON'BLE MR. JUSTICE JYOTI SARAN S K Katriar & Jyoti Saran, J.J. This appeal arises out of a judgment of reversal, and the defendants are the appellants. This appeal under clause 10 of the Letters Patent of the High Court of Judicature at Patna raises grievance with respect to the judgment and decree, dated 19.3.98, passed by a learned single Judge of this Court in First Appeal No.301 of 1977 (Bihar State Religious Trust Board & Another vs. Sahdeo Thakur & Ors.), whereby he has reversed the judgment and decree dated 15.1.1977, passed by learned 1st Additional Subordinate Judge, Bettiah, in Title Suit No.164/194 of 1971/74 (Bihar State Religious Trust Board vs. Sahdeo Thakur & Ors.). The suit had been dismissed by the learned trial court, and has been decreed by the learned Single Judge. Appellant nos. 1 to 7 and 9 to 12 herein are heirs and legal representatives of the purchasers from defendant no.5, and were defendant nos.1, 2, 3 and 4 in the trial court. Respondent no.1 herein was plaintiff no.1 before the trial court. Defendant no.5 (the Vendor) is appellant no.8 herein. Respondent nos.2 and 3 herein were co-plaintiffs. We shall go by the description of the parties appearing in the plaint. 2 2. According to the plaint, the suit was instituted for setting aside the sale deed executed by defendant no.5, in favour of the defendants 1st set, and for recovery of possession of the lands fully described at the foot of the plaint, from the defendants 1st party. Vaishnav Bairagi Math is situate in village Sirsia within Adapur P.S., having its branch Math in village Mahuagani within Majhaulia P.S. in the district of West Champaran. Both the maths are known as Sirsia Math and Mahuagani Math respectively. These Maths are public religious temples wherein Sri Ram Janki, Sri Radha Krishna, and other deities installed therein, are open to the general Hindu public, who worship the deities and offer cash and grains, which add to the income and assets of the Maths. The Maths are in existence from time immemorial and the income of the Math is spent over the Rag Bhog of deities, performance of religious ceremonies, service of Sadhus, Abhyagats, invalids, destitutes, and help to the students. 2.1) The further case of the plaintiffs is that Mahanth Bharath Das, who was Mahanth of the Maths died in the year 1950, leaving behind four disciples, namely, defendant no.5 (Nand Kishore Das alias Nathuni Das), Bira Das, Mahabir Das, and Mahanth Ramratan Das (plaintiff no.2). Since Mahanth Bharath Das nominated defendant no.5 as his successor during his life time and he was considered to be the most competent Chela, he was made the Mahanth. Thakur Das died without any Chela, and Bira Das died in 1963, leaving behind Imrit Das as his Chela. Sri Imrit Das was plaintiff no.3, who died during the pendency of the suit. In order to ensure proper management of the math, Mahanth Bharat Das executed two registered deeds dated 27.2.49; one the Deed of Samarpannana, and the other the Deed of Will giving necessary direction regarding the line of succession and the conduct and control of the Maths‟ affair. Defendant no.5, after becoming Mahanth, initially conducted the affairs of the Math in the right manner, but later began to live a vicious life and indulged in undesirable activities detrimental to the interest of the two Maths. Finally, in utter disregard of the direction of his Guru, he married a lady and began living a Grihasth life 3 when, according to the will and also the prevalent custom of the Math, only a celibate `Bairagi‟ could be the Mahanth of the two Maths. According to the plaintiff, defendant no.5 forfeited his right to continue on the Gaddi of Mahanth and plaintiff no.2 has become the Mahanth of the two Maths. 2.2) According to the plaint, defendant no.5 executed four registered Sale Deeds dated 12.8.59, 8.4.59, 28.5.59, and 12.8.59, which are exhibits C, C-1, C-2 and D, respectively, in favour of defendants 1st party for a total consideration of Rs.5200/- in respect of suit lands for his personal need, and he put the purchasers in possession of the lands transferred without obtaining permission either from the Religious Trust Board (plaintiff no.1), or the District Judge. It is alleged that the Deeds were not executed for any legal necessity, and possession of the defendant first party over the suit lands was illegal and were liable to vacate the same and also for payment of mesne profits. 3. Two separate written statements have been filed on behalf of the defendants who contested the suit. In the written statement filed by defendant no.5, it is contended that the suit is not maintainable and the plaintiff has got no cause of action for right to sue. It is also contended that the suit is barred by principles of estoppel and res judicata. Plaintiff no.1 had brought Title Suit no.70/66 against the present defendants, in which deceased plaintiff no.3 was defendant no.6 for similar relief on the grounds given in the present suit, and the said suit was dismissed in default on 21.4.70.The application filed under Order IX, Rule 9 C.P.C. for recall of the order, was also disallowed on 22.9.70 after contest. According to the defendants, therefore, the present suit for the same cause of action was not maintainable since the suit land is ancestral family property of defendant no.5, with which the general public had no concern. The suit cannot proceed unless ad valorem court fee is paid. It is also alleged that plaintiff no.2 was never Chela of Bharat Das. 3.1) According to the defendants, in village Sirsia and Mahangani, his ancestor Ramsaran Das had established Thakurbari for the worship of family 4 idol. Both the Thakurbaris are not Vaishnava Bairagi Math. The persons who perform the worship in the two Thakurbaris belong to the family of Ramsaran Das, who was never a Vaishnava Bairagi Sadhu. Their further case is that the Thakurbaris of village Sirsia and Mahangani are not religious institutions of the public nature, nor there are grand temples. It was thus contended that since the Thakurbari or its properties are not public trust property hence the provision of the Bihar Hindu Religious Trust Act, 1950 would not apply. 4. The learned trial court framed the following issues for adjudication:- “(1) Is the suit as framed maintainable? (2) Have the plaintiffs got any cause of action or right to sue? (3) Is the suit barred under order 9 Rule 9, C.P.C. ? (4) Whether the property in suit is a public religious trust property? (5) Are the plaintiffs entitled to a decree as prayed for? (6) To what other relief, if any, are the plaintiffs entitled?” 5. The suit on contest was dismissed. The learned trial court on contest held that the suit property is not “religious trust” within the meaning of Section 2(l) of the Bihar Hindu Religious Trust Act 1950 (hereinafter referred to as `the Act‟). Therefore, the suit property was not covered by the provisions of the Act and, therefore, defendant no.5 was free to alienate in favour of anybody he chose. In other words, it has been held that it is a private trust and members of the public have no concern with the same. Appellants no.2 and 3 are members of the general public who claim to worship in the math and are interested in its continuance as such. The suit property is the ancestral family property of defendant no.5 with which the general public has had no concern. It has further been held that the present suit has been filed for the same cause of action after dismissal of Misc.Case No.45/70 and, therefore, is barred by the provisions of Order 9, Rule 9 of the Code of Civil Procedure. 6. Aggrieved by the judgment and decree of the learned trial court, the plaintiffs preferred First Appeal No.301/77 in this Court. The learned single Judge on contest has held that the math in question is a public trust and the members of the general public worship as a matter of right. The learned 5 Single Judge has examined the registered will (Ext.2), and registered Samarpannama (Ext.4), and has come to the conclusion that it was intended to be a math for the general public. He has relied on the depositions of the P.Ws. On a consideration of the oral and documentary evidence, he has found as an issue of fact that the math in question was created with the intention that the members of the public are benefited, they have entry as a matter of right, and has thereby reversed the findings of the learned trial court. He has further held that Section 72 of the Act does not come in the way of institution of the suit. The appeal was accordingly allowed by the impugned judgment and the suit has been decreed. 7. While assailing the validity of the impugned judgment, learned counsel for defendant no.5 has submitted that it is a private trust. Therefore, the Religious Trust Board is not entitled to interfere with the affairs of the math, and the suit is not maintainable. He relies on the judgment of the Supreme Court reported in AIR 1957 SC 133 (Deoki Nandan vs Murlidhar). The math is maintained by private persons and common people have no concern with the Thakur Bari. Once it is held that it is a private property, the plaintiffs cannot challenge the alienation made by defendant no.5. The defendants 1st set are in possession of the transferred properties since the date of the sale deeds. It is not pleaded in the plaint whether or not it is a public trust and, therefore, the issues cannot be examined. It is next submitted that the sale was made for lawful purpose. The temple was damaged in the earthquake in 1934, and the alienations were made for repairs. He next submitted that the suit is not maintainable in view of the provisions of Order 9, Rule 9 of the Code of Civil Procedure. 8. Learned counsel for the defendants 1st set submitted that the present suit is not maintainable because of the order dated 21.4.70, passed in TS No.70/66, which was dismissed for non-appearance of both the sides. The restoration case was also rejected on 22.9.70. In other words, the Board had exhausted its remedies by preferring TS No.70/66 and, therefore, the present suit is not maintainable and is hit by the provisions of Order 9, Rule 9 of the 6 Code of Civil Procedure. He relies on the judgment of the Supreme Court reported in AIR 1970 SC 1 (Shankar Ramchandra Abhyankar vs. Krishnaji Dattatraya Bapat) (Para-10). He next submits that it is governed by Article 59 of the Schedule to the Limitation Act which prescribes a period of three years. Even if the provisions of Art. 92 were attracted, the two deeds of April and May 1959 would be hit by the bar of limitation and the principles of constructive res judicata. The four deeds were executed as follows:- (i) Ext.D dated 8.4.1959 from defendant no.5 to defendant no.2 alienating 9 kathas, 18 dhurs, for a consideration money of Rs.500/-. (ii) Ext.C2 dated 28.5.1959 exectued by defendant no.5 in favour of defendant no.3 transferring 3 kathas, 4 dhurs, for a consideration money of Rs. 700/-. (iii) Ext. C1 dated 12.8.1959 from defendant no.5 in favour of defendant no.1 alienating 2 bighas, 13 kathas, and 10 dhurs, for a consideration money of Rs.2000/-. (iv) Ext.C dated 12.8.1959 from defendant no.5 in favour of defendant no.4 alienating 1 bigha, 8 kathas, 16 dhurs, for a consideration money of Rs.2000/-. He next submits that the evidence on behalf of the plaintiffs can never lead to the conclusion that it is a public trust. The finding of the learned single Judge is without any evidence and, therefore, fit to be set aside. He relies on the judgment reported in 2000(2) PLJR 422 (Mukti Narain Das v. Bihar State Board of Religious Trust) (Para – 3, and 17). He further submits that in the absence of a declaration in terms of Section 43 of the Act, the suit is not maintainable. He relies on the judgment reported in 1962 BLJR Summary 23. 9. Learned counsel for plaintiff no.1 has submitted that the provisions of Order 9, Rule 9 are not attracted in the present case. It is covered by the provisions of Order 9, Rule 4, CPC. He next submits that the issues are 7 concluded by findings of facts and cannot normally be assailed in Letters Patent Appeal. He relies on the judgment of a Division Bench of this Court reported in 1999 (2) BLJ 818 (Barhu Ram vs. Butai Ram & Ors.). 10. Learned counsel for plaintiff no.2 has made common cause with plaintiff no.1 and has submitted that the suit is the basic remedy of the citizens of this country for adjudication of civil rights and liabilities. The present suit is, therefore, maintainable. He relies on the judgment reported in 2005 (1) PLJR 319 (Shyam Dulari Devi vs. Principal, Consolidation Training Institute). He next submits that the present LPA is not maintainable in view of the provisions of the Code of Civil Procedure (Amendment) Act 2002, which has repealed the provisions of LPA against the judgment of a single Judge in First Appeal. He has relied on a number of judgments of this court in support of the submission. He further submits that the issues are concluded by findings of facts. The learned single Judge has held that it is a public trust. He relies on the judgment of this Court reported in Barhu Ram (supra). He next submits that neither the principles of res judicata nor constructive res judicata are applicable to the present case. The present suit is maintainable. He next submits that Article 92 is applicable in the present case and period of twelve years from date of knowledge is available to the plaintiffs. 11. Learned counsel for the two sets of appellants have submitted that the LPA is maintainable and is not covered by the provisions of the Code of Civil Procedure (Amendment) Act 2002. They relied on the following reported judgments of the Supreme Court:- (i) AIR 2007 SC 663 (Para 20 and 22) (Kamla Devi v. Khushal Kanwar) (ii) 2005(1) BLJ 410 (P S Sathappan (Dead) by L.Rs. vs. Andhra Bank Ltd.) 12. We must first of all deal with the preliminary objection raised by learned counsel for the two sets of plaintiffs that this Letters Patent Appeal is not maintainable. In his submission, such an appeal against the judgment from the original degree of a learned single Judge of this Court has been abolished by Section 4 of the Code of Civil Procedure (Amendment) Act 8 2002, which was published in the Gazette of India dated 6.6.2002, and was enforced with effect from 1.7.2002. The same is reproduced hereinbelow for the facility of quick reference:- “4. Substitution of new section for section 100A.- For section 100A of the principal Act [as substituted by section 10 of the Code of Civil Procedure (Amendment)Act, 1999 (46 of 1999)] , the following section shall be substituted, namely:- “100A. No further appeal in certain cases.- Notwithstanding anything contained in any Letters Patent for any High Court or in any instrument having the force of law or in any other law for the time being in force, where any appeal from an original or appellate decree or order is heard and decided by a single Judge of a High Court, no further appeal shall lie from the judgment and decree of such Single Judge.” It is relevant to state that this amendment was preceded by earlier Amendment Acts. The entire conspectus of law fell for the consideration of the Supreme Court in Kamla Devi vs. Khushal Kanwar (AIR 2007 SC 663). The Supreme Court has observed that section 100A of Civil Procedure Code (as substituted by C.P.C. Amendment Act 2002) will not have retrospective effect so as to bring within its fold even appeals preferred prior to coming into force of said Amendment Act (2002) i.e. with effect from 1.7.2002. Thus, a Letters Patent Appeal, which was filed prior to coming into force of the 2002 Amendment Act, would be maintainable. The present appeal was lodged in this Court on 18.5.1998. We are, therefore, of the view that the present appeal is not hit by the bar created by the Amendment Act 2002, and is maintainable. 13. Learned counsel for the defendants has next submitted that, on the own showing of the plaintiffs, their suit bearing Title Suit No. 70 of 1966 had earlier been dismissed for default, and the restoration application had also been dismissed. It is, therefore, submitted that the present suit is hit by the provisions of Order 9, Rule 9, as well as section 11 of the CPC. We would first of all refer to paragraph-10 of the plaint which is as follows:- “10. That plaintiff no.1 was informed of the aforesaid sale deeds in the month of November 1959. So, plaintiff no.1 and one Mathura Mahato of village Mahanaganj, PS Majhowlia, District Champaran, instituted one Title Suit No.70 of 1966 as against against the defendants and some other persons but the suit was dismissed for default under Order 9, Rule 4, Civil Procedure Code on 21.4.70. A petition for restoration was filed but this was also rejected on 22.9.70.” 9 The learned trial court found that the present suit has again been filed for the same cause of action after dismissal of Misc. Case no.45/70, and the suit is barred under the provisions of Order 9, Rule 9, CPC. The learned single Judge discussed this issue at length and has held that the parties had not appeared in Title Suit No.70 of 1966, and, therefore, a suit for dismissal for non-appearance of both the sides is covered by the provisions of Order 9, Rule 3, and not by Order 9, Rule 9 and, therefore, the suit is maintainable. We entirely agree with the conclusion of the learned single Judge. We are supported by the judgment of a Division Bench of this Court in Musammat Balkesia v. Mahant Bhagwan Gir [1936(15) ILR PATNA 716], wherein it has been held that Order 9, Rule 4, provides that the plaintiff may bring a suit, or he may apply for setting aside the dismissal. If he satisfies the court and obtains an order setting aside the dismissal in which case he will proceed with his original suit. If his application for restoration is dismissed, he is left to his alternative remedy which is that he may, subject to the law of limitation, bring a fresh suit. 14. Learned counsel for the defendants have contended that the suit is hit by the bar of limitation. In terms of Article 59 a period of three years was available to the plaintiffs of the suit. The deeds are of April, May, and August 1959, whereas the suit was instituted in 1971. In view of the frame of the suit, and the reliefs prayed for, we are of the view that the issue is covered by Article 92 of the Schedule to the Limitation Act which reads as follows:- “PART VIII.- SUITS RELATING TO TRUSTS AND TRUST PROPERTY “92. To recover possession of Twelve years When the transfer immovable property becomes known conveyed or bequeathed to the plaintiff. In trust and afterwards Transferred by the Trustee for a valuable consideration.” The plaintiffs in paragraph 10 of the plaint claim to have gathered knowledge of the Sale Deeds in November 1959. The suit was instituted within a period of twelve years of knowledge of registration of the sale deeds 10 in terms of Article 92 of the Limitation Act. The contention is thus rejected. 15. Learned counsel for the defendants submitted that in view of the absence of declaration in terms of section 43 of the Act, the suit is not maintainable. We are unable to agree with the contention for the reason that section 43 of the Act provides a domestic forum of quasi-judicial nature to decide the question whether any immoveable property is a trust property. Section 43 of the Act is reproduced hereinbelow for ready reference:- “43. Decision of disputes as to whether any immoveable property is a trust property.- (1) All disputes as to whether any immoveable property is or is not a trust property shall be inquired into, either on its motion or on application, by the authority appointed in this behalf by the State Government by notification in the Official Gazette : Provided that such authority shall be a person who is, or has been, a member of the Bihar Civil Service (Executive or Judicial Branch or a member of the Bihar Superior Judicial Service or the Indian Administrative Service. (2) Such authority shall cause – (a) a general notice to be published in the prescribed manner calling upon all persons having any claim to such property to file their claim within sixty days from the publication of the general notice, and (b) notices to be served on the Board and on the persons stated in the application or known to such authority to be in possession of the property. (3) Such authority shall after taking into consideration the claims, if any, filed under sub-section (2) and after hearing the parties and taking such evidence as may be adduced before him; declare whether the property is a trust property and, if it is so, the trust to which it belongs and shall make an order accordingly. (4) Where such authority makes an order declaring a property to be trust property, it shall direct that the trustee of the trust to which it belongs or, if there be no such trustee, a person appointed by the Board to be a trustee for the purpose, be put into possession of the property, and determine the cost of management referred to in sub- section (7). (5) The Board or any other person, aggrieved by the order of such authority, may within ninety days of such order, institute a suit in a Court of competent jurisdiction to have the order set aside or modified. (6) Subject to the final result of any suit instituted under sub- section (5), the order of such authority shall be final and conclusive, and the court trying the suit shall have no power to stay the enforcement of the order pending the disposal of the suit. (7) The income from a property declared to be trust property under sub-section (3) shall, after meeting the cost of management, be kept in deposit under the directions of the Board for ninety days after 11 the delivery of possession under sub-section (4) of where a suit is instituted under sub-section (5), till the final disposal of the suit. Explanation.- In this sub-section, `cost of management‟ shall include, in the case of a property dedicated to an idol, the expenses incurred in the worship and rag bhog (performance of religious ceremonies) of the idol. (8) In any proceeding under this section, such authority shall have the powers of the Court under the Code of Civil Procedure, 1908 (V of 1908), in respect of the following matters, namely:- (a) proof of facts by affidavits; (b) summoning and enforcing the attendance of