FIRST APPEAL No. 302 OF 1989 Against the judgment dated 4.7.1988 and the decree signed on 13.07.1988 by Sri Chandradeo Jha “Vikal”, Subordinate Judge 5th, Motihari in Title Suit No. 55/03 of 1978/87. LAXMI NARAIN THAKUR & ORS. ………. Defendants-Appellants Versus SUDAMA DUBEY & ORS. ……… Plaintiffs-Respondents ******** For the Defendants/Appellants: Mr. Hemendra Prasad Singh, Advocate For the Plaintiffs/Respondents : Mr. Yogendra Mishra, Advocate Dated : 4th day of January, 2011 P R E S E N T THE HON'BLE MR. JUSTICE MUNGESHWAR SAHOO J U D G M E N T The defendants have filed this First Appeal against the judgment dated 4th July, 1988 and the decree following thereupon signed on 13.7.1988 by Sri Chandradeo Jha “Vikal”, the learned Sub Judge 5th, Motihari in title suit no. 55/3 of 1978/87 decreeing the plaintiff-respondent no. 1’s suit. (2) The plaintiff-respondent no. 1, Sudama Dubey filed the aforesaid title suit for declaration that deed of waqfnama dated 5.1.1978 is forged and illegal and brought into existence under coercion and it was not legally executed by the plaintiff and not binding on the plaintiffs and as such, the deed of waqfnama is illegal, improper, not effective and useless and also prayed for a decree for recovery of possession by dispossessing the Mungeshwar Sahoo, J. 2 defendants under the process of the Court in favour of the plaintiff. The plaintiff also prayed for cost and mesne profit. (3) The plaintiff, Sudama Dubey claimed the aforesaid relief on the allegation of facts that a Vaishnav Math was established by Mahanth Most Ram in Mauja Ruphara, P.S. Dhaka. He also acquired lands. Out of the income from the lands, the works for the deities including Ramjanki and others were performed by Mahanth Most Ram. After his death, his Chela, Baldeo Das became Mahanth. He had three Chelas. Therefore, he executed three registered deeds of Vasiyatnama with regard to the Math land measuring 11 Bighas on 1.3.1929 in the name of his three Chelas. After death of two Chelas, Ragho Das one of the Chelas became Mahanth of the said Math who used to perform Puja of deities in Math and was looking after the management and cultivation of the Math land. When he felt difficulties in looking after the management, he kept the plaintiff to help him. He had love and affection with the plaintiff and therefore, Mahanth Ragho Das gave the Mahanthee of Math to the plaintiff and executed a registered deed of Baksisnama on 15.2.1977 with respect to the property described in Schedule- 1 of the plaint. The plaintiff came in possession of the same as owner and his name was also mutated. (4) The further case is that the defendants who are of different Maujas but are of one party had greedy eyes over the properties belonging to Math. They were under impression that on the death of Mahanth Ragho Das, they will grab the property but they became frustrated because Mahanth Ragho Das gifted the property in favour of the plaintiff. In furtherance of their greediness, the defendant nos.1 to 9 and others pressurized the plaintiffs for executing a deed of Baksisnama in the name of 3 Ramjanki to which the plaintiff objected but they threatened him to assault and got his signature under pressure and coercion and against his will on a written stamp paper. The said defendants took him to Registry office and forcibly got it registered. The plaintiff came to know that a Baksisnama was created in the name of Ramjanki with respect to 6 Bighas 14 kathas 16 dhurs with house, temple, trees, pond described in Schedule-2 of the plaint. The said deed has been brought into existence by playing fraud and coercion. The plaintiffs cancelled the waqfnama dated 5.1.1978 by executing a deed of cancellation dated 21.1.1978. According to the plaintiff, still the gift deed is with the defendants which caused a cloud on the title of the plaintiff on the properties described in Schedule-2 of the plaint, therefore, the suit was filed. (5) The defendant nos. 1, 3 to 10, 12 to 22, 24, 26 to 28 appeared and filed joint written statement and contested the suit. Their case in short is that the plaintiff himself expressed his thought before the villagers to gift the property to Ramjanki and thus, with free mind and without any pressure and with willingness, he executed the gift deed in the name of Sri Ramjanki. So far the fact that the Math is private Math established by Mahanth Most Ram is concerned, it was not denied. The defendants also admitted all other facts about how the property came in the hand of plaintiff. Only the dispute raised by the defendants is that the plaintiff executed the said waqfnama in the name of Ramjanki Ji out of his free will. (6) The learned Court below framed the following issues: (i) Is the suit as framed maintainable? (ii) Has the plaintiff got valid cause of action or right to sue? (iii) Is the deed of gift dated 5.1.1978 with respect to schedule 2 properties void, illegal and not binding on the plaintiff? 4 (iv) Is the deed of cancellnama dated 21.1.1978 is valid, genuine and for consideration? (v) Is the plaintiff entitled to a decree as claimed? (vi) To what other relief, or reliefs, if any, is the plaintiff entitled? (7) After trial, the Court below found that the plaintiff has successfully proved the fact that the deed of gift dated 5.1.1978 with respect to Schedule-2 property was not executed and registered with his free will and consent and therefore, the same is void and illegal document and not binding on the plaintiff and therefore, decreed the plaintiff’s suit. The learned Court below also found that the Math was not public religious trust but it was a private Math and therefore, the suit was not filed under Order 1 Rule 8 C.P.C. The Court below also found at paragraph 10 that Order 1 Rule 8 C.P.C. is not applicable as the contest is only with the defendants as they have wanted to grab the private property of the plaintiff in fraudulent manner. (8) The learned counsel for the appellants submitted that the Math is a public Math and the learned Court below has wrongly decreed the plaintiff’s suit presuming the Math as private Math. The learned counsel further submitted that the plaintiff himself out of his own free will executed the deed of gift in the name of Ramjanki Ji and a Committee was constituted wherein the defendants were made member. The learned counsel further submitted that the learned Court below has not properly appreciated the evidences on record. (9) It may be mentioned here that at the very outset, the learned counsel appearing on behalf of the respondent firstly, objected to the maintainability of the appeal at the instances of the defendants-appellants and secondly, the learned counsel submitted that the whole appeal has become 5 incompetent as it has abated against the legal representatives of seven appellants out of 10 appellants. The learned counsel submitted that appellant nos. 1 to 6 and 10 have died but no substitution has been made and their legal representatives have not been brought on record. The learned counsel further submitted that the appeal has already abated as against the legal representatives of respondent no. 12 which would be evident from the order dated 6.12.1990. So far merit is concerned, the learned counsel for the respondents submitted that the defendants never claimed that the Math was public Math. All the cases pleaded by the plaintiff regarding the establishment of Private Vaishnav Math by Mahanth Most Ram have been admitted in the written statement. The defendants also admitted the fact pleaded by the plaintiff regarding devolution of the property on the plaintiff and the learned Court below has rightly after appreciation of the evidence found that the deed of gift, Exhibit-C dated 5.1.1978 has not been executed by the plaintiff out of his own free will. (10) In reply to this, the learned counsel appearing on behalf of the appellants submitted that the suit was filed by the plaintiff in the representative capacity and the defendants were representing the public and therefore, for non-substitution of the legal representatives, the whole appeal will not abate. The learned counsel relied upon a decision reported in A.I.R. 1975 S.C. 371(Charan Singh and ors. v. Darshan Singh and ors.). (11) In view of the above rival contentions of the parties, the following points arise for consideration in this appeal: I. Whether because of non-substitution of the legal representatives of the appellant nos. 1 to 6 and appellant no. 10 and also for non-substitution of the 6 legal representatives of the deceased respondent no. 12 against whom the appeal has already abated, the whole appeal has become incompetent or not? II. Whether(if the appeal is competent), the gift deed, Exhibit-C has been executed by the plaintiff because of fraud and coercion and pressure of the defendants and whether the impugned judgment and decree are sustainable in the eye of law? (12) The learned counsel for the appellants submitted that the whole appeal will not become incompetent because it is a suit in the representative capacity and the defendants were representing the public. So far this submission is concerned, as has been stated above, the learned Court below has found that in this case, since the defendants are trying to grab the property fraudulently, Order 1 Rule 8 is not applicable. Further, none of the defendants in their written statement claimed that the Math is public Math. It is also not their case that the property of Math is not owned by the plaintiff. Therefore, the fact that the land is in the name of the plaintiff is admitted by the defendants likewise, the Math is a private Math is also admitted. The defendants are neither claiming title to the property nor claiming that the Math is public Math. Only the dispute is that whether these defendants pressurized the plaintiff to execute the gift deed or not? Therefore, their action cannot be said to be the action on behalf of the public. In Exhibit-C, they are made member of the Committee and power has been given to them to even remove the plaintiff from the Math as Pujari. Therefore, apparently, it appears that the defendants are getting undue advantage through Exhibit-C. Their this action cannot be termed as the action of the public. From perusal of the decision cited by the appellants i.e. Charan Singh Case(supra), it appears that in that case, the Gurudwara was public Gurudwara and the 7 plaintiffs filed the suit against the trustees of the religious institution without obtaining consent of the Advocate General as provided under Section 92 of the Code of Civil Procedure. In the present case, the defendants are neither representing the deity i.e. Ramjanki Ji and others established in Math nor they are representing the public nor has the plaintiff filed the suit in the representative capacity. The dispute between the plaintiff and the defendant is purely a private dispute in the garb of gift deed, Exhibit-C. Ramjanki Ji and others established in Math is private, the plaintiff is performing Puja etc. of the deities out of the income of the land. There is no allegation of misappropriation. Moreover, it is a private land and private deities of the plaintiff, then, there is no question of any misappropriation also arises. In view of the above facts, the decision cited by the appellants is not at all applicable and helpful to the appellants. (13) On the contrary, in the case of (Rameshwar Prasad and others v. Shambehari Lal Jagannath and another), A.I.R. 1963 S.C. 1901, the Hon’ble Apex Court at paragraph 14 and 15 has held as follows: “(14) Further, the principle behind the provisions of R. 4 seems to be that any one of the plaintiffs or defendants, in filing such an appeal, represents all the other non-appealing plaintiffs or defendants as he wants the reversal on modification of the decree in favour of them as well, in view of the fact that the original decree proceeded on a ground common to all of them. Kedar Nath was alive when the appeal was filed and was actually one of the appellants. The surviving appellants cannot be said to have filed the appeal as representing Kedar Nath. (15) Kedar Nath’s appeal has abated and the decree in favour of the respondents has become final against his legal representatives. His legal representatives cannot eject the defendants from the premises in suit. It will be against the scheme of the Code to hold that R.4 8 of O. XLI empowered the Court to pass a decree in favour of the legal representatives of the deceased Kedar Nath on hearing an appeal by the surviving appellants even though the decree against him has become final. This Court said in State of Punjab v. Nathu Ram, AIR 1962 SC 89 at p. 91 : “The abatement of an appeal means not only that the decree between the appellant and the deceased respondent has become final, but also, as a necessary corollary, that the appellate Court cannot, in any way, modify that decree directly or indirectly. The reason is plain. It is that in the absence of the legal representatives of the deceased respondent, the appellate Court cannot determine anything between the appellant and the legal representatives which may affect the rights of the legal representatives under the decree. It is immaterial that the modification which the Court will do is one to which exception can or cannot be taken.” No question of the provisions of R.-4 of O. XLI overriding the provision of R.9 of O. XXII arises. The two deal with different stages of the appeal and provide for different contingencies. Rule 4 of O. XLI applies to the stage when an appeal is filed and empowers one of the plaintiffs or defendants to file an appeal against the entire decree in certain circumstances. He can take advantage of this provision, but he may not. Once an appeal has been filed by all the plaintiffs the provisions of Order XLI, Rule 4 became unavailable. Order XXII operates during the pendency of an appeal and not at its institution. If some party dies during the pendency of the appeal, his legal representatives have to be brought on the record within the period of limitation. If that is not done, the appeal by the deceased appellant abates and does not proceed any further. There is thus no inconsistency between the provisions of R.9 of O. XXII and those of R.4 of O. XLI, C.P.C. They operate at different stages and provide for different contingencies. There is nothing common in their provisions which make the provisions of one interfere in any way with those of the other.” 9 (14) In view of the above facts and circumstances of the case and in view of the well settled principles of law laid down by the Hon’ble Apex Court, the whole appeal has become incompetent for non-substitution of the legal representatives of the deceased appellant nos. 1 to 6 and 10 and respondent no. 12. So far the decree against them has become now final in favour of the plaintiff-respondent no. 1, it cannot be said that the rest of the appellants i.e. appellant nos. 7 to 9 filed this appeal are also representing the legal representatives of the other deceased appellants. Therefore, the whole appeal has abated and cannot proceed. (15) During the course of hearing, an Interlocutory Application has been filed by the appellants i.e. I.A. No. 9630 of 2010 praying therein to add Bihar Religious Trust Board, the party-respondent in this appeal. I have heard the parties on this Interlocutory Application also. The appellants were defendants in the Court below and in my opinion, at the instance of defendant, party cannot be added in the suit. The defendants at best may take a defence that suit is bad for non-joinder of such and such party. As stated above, since in this case, it is not at all disputed by the parties that the Math is a private Math, there is no question of adding Bihar Religious Trust Board arises. The Bihar Religious Trust Board came into picture only after execution of Exhibit-C. I, therefore, find no merit in this application and accordingly, it is rejected. (16) Since I have held that the whole appeal has become incompetent and cannot proceed as abated, it is not necessary to decide point no. 2. 10 (17) In the result, the appeal is dismissed as abated, as a whole. (18) In view of my above findings, no separate order is required to be passed on I.A. No. 2653 of 2002, I.A. No. 53 of 2003, I.A. No. 5728 of 2003, I.A. No. 5727 of 2003 and I.A. No. 2177 of 2005. Accordingly, all these Interlocutory Applications are disposed of. (Mungeshwar Sahoo, J.) Patna High Court, Patna The 4th January, 2011 Saurabh/N.A.F.R.