IN THE HIGH COURT OF JUDICATURE AT PATNA C.R. No.1530 of 2008 BIHAR STATE HINDU RELIGIOUS TRUSTS BOARD Versus MAHANTH RAMA KANT DAS & ORS With C.R. No. 1827 of 2008 MAHANTH RAMAKANT DAS Versus MAHANTH VIMAL DAS & ANR. For the Petitioner : Mr. Kamal Nayan Choubey, Sr. Adv. Mr. Ambuj Nayan Choubey, Advocate (in C.R. No. 1530/2008) : Mr. S.K. Mazoomdar, Sr. Advocate (in C.R. No. 1827/2008) For the Respondent : Mr. Madanjeet Kumar, Advocate. P R E S E N T THE HON'BLE JUSTICE MIHIR KUMAR JHA ******** Mihir Kr. Jha, J. Heard Mr. Kamal Nayan Choubey, learned Senior counsel appearing on behalf of the petitioner in Civil Revision No. 1530 of 2008 and Mr. S.K. Mazoomdar, learned Senior counsel appearing on behalf of the petitioner in Civil Revision No. 1827 of 2008. For the reasons mentioned in I.A. No. 5539 of 2008 in Civil Revision No. 1530 of 2008 the delay in filing if the aforesaid Civil Revision Application is condoned. Coming to the merits of the case, it appears that the dispute in hand is confined to the right of managing and controlling the affairs and property of an old public religious trust namely Baba Bhikham Das Thakurbari, Bari Path, Kadam Kuan, Patna 2 (hereinafter referred to as the Thakurbari). As is well known that dispute in such public religious trust emanate and thrive basically for controlling the properties of the Trust. Here also it is the huge trust property in the heart of town of Patna valuing several crores of Rupees, which has led to a continuing ongoing legal battle with inglorious past and uncertain future which has in process also doomed its present. It would thus be necessary for this Court to be note certain events which had taken place both prior to and after the date of 11th April, 2007, which for than one reason had became a fateful day when this court had issued certain directions for management of the property of the said trust including the Thakurbari. All that in this regard has to be noticed is that ever since 1952 there has been on going a marathon race for the coveted post of Mahantha and managing the property of the trust including it Thakurbari in the city of Patna. It is said that a Will dated 21.12.1952 executed by the then Mahanth Ram Krishna Das in favour of Ram Rajeshwar Das marked the beginning of the dispute because it was this Will and a subsequent Will of the year 1960 authored by the same person namely Mahantha Ram 3 Krishna Das in favour of one Chandramani Das which led to the dispute for the office of the Mahanth of the said Thakurbari. When Mahanth Ram Krishna Das had died in 1961, Ram Rajeshwar Das in fact had filed a succession case in 1961 being Succession Case 188 of 1961 on the basis of Will dated 21.12.1952 and thereafter in 1963 Chandramani Das had filed a Letter of Administration case on the basis Will of the year 1960. The aforesaid Letters of Administration case on the contest of Ram Rajeshwar Das was converted into a Title Suit No. 22 of 1966 and the trial court by its two separate judgments dated 28.5.1977 had allowed succession case in favour of Ram Rajeshwar Das while Title suit filed by Chandramani Das was dismissed. The order passed in Succession case in favour of Ram Rajeshwar Das became final, in as much as, a Civil Revision filed by Chandramani Das was dismissed. That, however, was not the end of the dispute because Chandramani Das immediately thereafter filed a Title Suit No. 225 of 1978 with regard to claim to the office of the Mahanth on the basis of the Will of the year 1960. It is found that an order of injunction was also passed in that Title Suit No. 225 of 1978 in the year 1979, which again was assailed by Ram Rajeshwar Das by filing a 4 Miscellaneous Appeal and the same was tagged along with First Appeal No. 500 of 1977 which was filed by him against the decree in Title Suit No. 22 of 1966. The First appeal and the aforementioned miscellaneous appeal were disposed of by this Court by order dated 11.11.1998 reported in 1999(1) PLJR 443 and while first appeal was dismissed, the miscellaneous appeal was allowed setting aside the aforesaid order of injunction. The resultant attempt before the Supreme Court at the instance of Chandramani Das failed and it can thus be safely said that in that round of litigation Ram Rajeshwar Das was found to be Mahanth on the basis of Will executed by the admitted Mahanth Ram Krishna Das, Ram Rajeshwar Das had thereafter filed an execution case now for executing the order dated 28.5.1977 in his favour which as noticed above was passed in a Succession case. While execution case was pending Ram Rajeshwar Das, the decree holder, died on 1.1.2003 and Mahanth Rama Kant Das claiming to be his Chela had filed an application for his being substituted. This was opposed by Bimal Das, Jai Narain Das and Sarvesh Das, who by now also came into picture on account of death of the judgment-debtor Chandramani Das, who is said to have died on 15.12.2004. This 5 dispute was pending before the executing Court as to who would be substituted in place of decree holder Ram Rajeshwar Das. It is however significant to note here that Ramakant Das in the execution case on one hand had claimed to be the only chela of Ram Rajeshwar Das but on the other hand he himself had filed a probate case being Probate Case No. 65 of 2003 for being declared successor of Ram Rajeshwar Das on the strength of a will. This was however opposed in another probate case filed by another Chela Jai Narain Das being Probate Case No. 46 of 2005 on the basis of another will of Ram Rajeshwar Das. At the same time Ramakant Das same time in 2006 had also filed an application before the Board for being declared as a Mahanth of the Thakurbari and on this application the Board by order dated 8.12.2006 had fixed the matter for hearing. It is on the record that when hearing had commenced all the parties claiming to be Mahantha of Thakurbari i.e, Bimal Das, Jai Narain Das, Sarvesh Das as also Rama Kant Das took a plea before the Board that a miscellaneous appeal being Miscellaneous Appeal No. 205 of 2001 was pending before this Court which had arisen out of the order dated 5.2.2001 passed by the Additional District Judge-VI, Patna in Misc. Case no. 56/1997 affirming the order of Board dated 6 15.7.1996 appointing Ram Rajeshwar Das as a trustee (Mahantha). The Board therefore had also awaited for disposal of the said miscellaneous appeal, and that is how this miscellaneous appeal has become water shed and turning point for the entire dispute. It must be recapitulated at this stage that in the miscellaneous appeal filed by one Mahantha Sarvesh, he had assailed the order dated 5.2.2001 passed by the Additional District Judge-VI, Patna dismissing the Misc. Case No. 56 of 1997, filed by the original appellant Mahantha Chandramani Das affirming the order dated 15.7.1996 passed by the Chairman of the Bihar State Board of Hindu Religious Trust by which Chandramani Das was removed from the post of Trustee of the Trust in question in terms of section 22 (h)(iii) of the Bihar Hindu Religious Trust Board Act, 1950 hereinafter referred to as the Act. In the said miscellaneous appeal Ram Rajeshwar Das was made respondent no.4 in whose favour Board has passed an order dated 15.7.1996 appointing him as a trustee of the Thakurbari. This Court in its judgment dated 11th April, 2007 while going into all possible facets and aspects of the dispute as noticed above had held as follows:- “12.It is not disputed that there was a contest between the original 7 appellant and the original respondent no.4 as to the right to act as Trustee of the Trust and there was serious allegations of interference with the management and also serious allegations for mismanagement of the property of the Trust. It is also not in dispute that both the original claimants, namely, the original appellant and original respondent no.4 have died and there is a vacancy existing in the office of the trustee of the Trust. It also does not remain in dispute that the condition of the once flourishing Math throbbing with healthy religious activities, rites and rituals and thronged by thousands of devotees has not even remained a shadow of its original self devoid of any such activity or devotee and even the properties of the Trust having deteriorated immensely due to the self aggrandizing attitude of the claimant Trustees and their long litigation spanning more than forty five yeas, which is being followed by their respective alleged Chelas.” “13.Considering the provisions of law, the facts of the case mentioned above, as well as the condition of the Trust and also realizing the illegalities in the earlier order of the Board as well as in the impugned order of the learned court below, this Court hereby sets aside the impugned order dated 5.2.2001 passed by the learned Additional District Judge, VI, Patna in Misc. Case (Religious Trust Board) no. 56 of 1997 as well as the order of the Board dated 15.7.1996, which was under challenge in the aforesaid Miscellaneous case. The instant Miscellaneous Appeal is accordingly allowed with a direction to the Board (respondent no.1) to appoint a competent person in terms of section 33(1) of the Act to act as the trustee of the Trust in question within two weeks from the date of receipt/production of a copy of this order for a period of one year unless the dispute is decided by a competent court or authority within that period and if the dispute is not decided by the said 8 Court/Authority within the said period of one year the Board shall settle a scheme for proper administration of the Trust under section 32 of the Act, which will be subject to any subsequent order of a competent Court, in accordance with section 33(3) of the Act.” As a matter of fact while directing the Board to appoint a competent person as a trustee this Court had also set out the reasons for such a direction to the Board, which read as follows:- “14.Before parting with this judgment, it will be necessary to mention here that this Court expects that the Board as well as its Administrator Mr. Kishore Kunal, who is personally present in this Court, will not only bring the Math in question to its lost glory of healthy religious activities, rites and rituals, but will also see that the Math is developed into an ideal place of worship for the actual beneficiaries, namely its devotees and that its properties and income are being used for the real purposes of such a trust, namely, service to the humanity, which the Board under its above named Administrator have done in similar trusts of Bihar in the recent past.” It is not in dispute that the aforesaid order of this Court dated 11.4.2007 was immediately complied by the Board which had appointed Hon’ble Mr. Justice Uday Sinha, a retired Judge of this Court, as the sole trustee by order dated 25.4.2007. There is also no dispute that on or after 25.4.2007 the said trustee, the Hon’ble Mr. Justice Sinha had taken charge of the affairs of the Trust and its Thakurbari and was managing the affairs by not only 9 making arrangement of regular Pujapath, Rajbhog etc. in the temple, but also by taking control in the financial matter including collection of rent from the number of tenants of the Trust. In fact, after judgment of this Court dated 11.4.2007when the same also got affirmed by the Apex Court by way of dismissal of the Special Leave petition filed by Mahantha Sarvesh, the Chela of Mahantha Chandramani Das, the Board had also settled a scheme for proper administration of the Trust under section 32 of the Act and had appointed a committee headed by Hon’ble Mr. Justice Uday Sinha by notification published in the official gazette on 29.5.2008. The said trust committee was in office and in possession of entire trust property including the Thakurbari but all of a sudden on 1.9.2008 its such possession was sought to be disturbed on account of forcible possession given to Ramakant Das with the help of police on the strength of the order of the Civil Court seeking to execute the decree in Execution Case No. 1 of 2000 and by giving possession thereof to Rama Kant Das only because his substitution had been allowed by the executing Court in Execution Case No. 1 of 2000 by order dated 20.2.2008. In such circumstances the committee appointed headed by Justice Uday Sinha which had been 10 dispossessed of trust property including the Thakurbari and the office of Trust Committee on 1.9.2008 with the help of police, had immediately filed an application under Order 21 rules 99 and 100 of the Code of Civil Procedure before the executing court for being restored of possession of the trust properties in terms of order of this Court dated 11.4.2007. When the Court below, however, did not pass any order on that application, the petitioner- Board had moved this Court challenging the very basis of execution being the order of substitution dated 20.2.2008 in C.R. No. 1530/2008 taking a plea that the substitution as prayed by Ramakant Das was allowed in an illegal manner and that too without hearing the Board and/or its trustee committee. This Court noticing the earlier judgment of this Court dated 11.4.2007, which had been also upheld by the Apex Court, had directed for issuance of notice to Ramakant Das and at the same time had made it clear that the trust properties must be strictly dealt with as per direction of this Court in the order dated 11.4.2007. In terms of the aforementioned order of this Court dated 12.9.2008 when the Board had filed an application bringing on record all these materials, the court below had directed Ramakant Das by its order dated 26.9.2008 11 for restoring possession of the properties of the trust and Thakurbari to the committee headed by Justice Uday Sinha, which has become subject matter of second C.R. No. 1827 of 2008 filed by the aforesaid Ramakant Das. From the narration of the facts mentioned above it would be clear that the whole dispute now basically hinges on the issue as to whether the order dated 20.2.2008 passed by the court below directing substitution bringing Ramakant Das as legal representative of the original decree holder Ram Rajeshwar Das is legal and in terms of the order 22 Rule 5 of the C.P.C.? Mr. Kamal Nayan Choubey, learned senior counsel appearing on behalf of the Board in C.R. No. 1530 of 2008 has submitted that order 22 Rule 5 of the C.P.C. envisages an enquiry for determining the question as to whether any person is or is not legal representative of the deceased-plaintiff. He has submitted that when on 20.2.2008 such a question was being decided, it was incumbent upon the Court to take into account the whole background of the case, in as much as, the decree which was passed in the succession case no. 188 of 1961 filed by Ram Rajeshwar Das which was confined to a declaration that Ram Rajeshwar Das alone was the chela of 12 Mahantha Ram Krishna Das and there was no adjudication in favour of any other person muchless Ramakant Das to be either the chela of Ram Rajeshwar Das or any right of succession to the office of Mahantha of Thakurbari. Mr. Choubey had further contended that as a matter of fact the order dated 20.2.2008 was passed by the Executing Court seeking to substitute Ramakant Das in place of Ram Rajeshwar Das, the original decree holder by ignoring the findings and direction recorded in the order of this Court dated 11.4.2007 in Misc. Appeal No. 205 of 2001 as also without ascertaining the fate and status of other pending cases including Probate Case No. 65 of 2003, Probate Case No. 46 of 2005 and its consequential title suit no. 2 of 2007, as also the earlier title suit no. 225 of 1978 regarding which not only were taken in to consideration by the High Court, but in respect of them it was also observed that the trustee appointed by the Board would remain in office till the aforementioned cases were decided to settle the dispute as to who was the successor and trustee after Ram Rajeshwar Das. Mr. S.K. Mazumdar, learned senior counsel appearing on behalf of the aforesaid Ramakant Das, on the other hand, has submitted that the civil revision filed by the Board questioning the order 13 dated 20.2.2008 in the execution case as with regard to substitution of Ramakant Das was not maintainable, in as much as, the Board was neither a party to the suit nor has any right to question the substitution allowed in favour of Ramakant Das. He had also submitted that the order of this Court dated 11.4.2007 in fact had allowed the Board and its trustee appointed in terms of section 33 or the trustee committee in terms of section 32 of the Act to continue in office only till there was a vacancy in the office of the trustee of the Trust, but as soon as the executing court in the order dated 20.2.2008 had held that Ramakant Das was the legal representative of Ram Rajeshwar Das and was fit to be substituted in his place for executing the decree, he (Ramakant Das) must be held to have become the trustee as the dispute in this regard had been finally decided by the competent civil court in terms of paragraph 13 of the judgment of this Court dated 11.4.2007. This Court is not in a position to accept the objection of Mr. Mazumdar as with regard to maintainability of the Civil Revision Application, in as much as, the Board and its trustee Mr. Justice Uday Sinha appointed in view of direction of this Court in the judgment dated 11.4.2007, had been 14 sought to be dispossessed from the entire trust properties only on the strength of the order dated 20.2.2008, in as much as, it was after making substitution of Ramakant Das that an order for delivery of possession as prayed by him was issued by the Court. That being so, if the right of any person in possession of the property was adversely affected by dispossessing him in consequence of execution of a decree he has a remedy as is recognized by order 21 Rules 99 and 100 of the C.P.C. There will be thus no difficulty in holding that such person would definitely have also a right to question the basis of such delivery of possession. Since delivery of possession has been made only on the strength of the order dated 20.2.2008 allowing substitution of Ramakant Das in the execution case, this Civil Revision Application at the instance of the Board and its trustee is definitely maintainable. The next submission of Mr. Mazumdar that the dispute as referred to in paragraph 13 of the judgment of this Court dated 11.4.2007 came to be decided in favour of Ramakant Das in view of order dated 20.2.2008 would infact itself be an answer to the aforementioned preliminary objection because admittedly on the strength of the order of this 15 Court dated 11.4.2007 Mr. Justice Uday Sinha and his committee came in office on being appointed by the Board by way of compliance of direction of this Court. The committee headed by Justice Uday Sinha was also in possession of the entire trust properties and that is why Ramakant Das with the help of police had sought to take possession of the properties of the trust including Thakurbari on 1.9.2007. Any person including the Board or its trustee therefore had definitely a right to question the decision of the executing court which in the opinion Ramakant Das had settled the dispute with regard to the office of Mahantha and as the submission of Mr. Mazumdar is that the order dated 20.2.2008 had settled the dispute, the right of the Board to question such order cannot be questioned because not only the Board has statutory power to manage the affairs of each and every religious and charitable trust but has also power to appoint temporary trustree and frame the scheme for the management of the trust. When such right of the Board, which was being enjoyed by it not only under order of this Court dated 11.4.2007 but on account of the subsequent notification issued by it on 25.4.2007 by appointing Hon’ble Mr. Justice Uday Sinha as the trustee of the trust as also framing of 16 the scheme and notifying the committee to manage the affairs of the trust on 29.5.2008, it would be difficult to accept the submission of Mr. Mazumdar that either the Board had no locus standi to question the said order dated 20.2.2008 or the subsequent event leading to dispossession of the Board and its trustee on 1.9.2008. That apart, this Court from the tenor of the impugned order dated 20.2.2008 would find that the said order was passed merely on concession. The order records that Mahantha Ramakant Das had filed an application on 28.1.2003 under order 22 Rule 3 of the C.P.C. for his substitution in place of the deceased decree holder Ram Rajeshwar Das only on the ground that he was the eldest Chela and as such has right to be substituted in place of the deceased decree holder. The order records that there was an objection on behalf of the judgment-debtor as also by one Mahantha Bimal Das on different grounds and while Mahanth Bimal Das claimed to be legal heir and Chela of the decree holder Ram Rajeshwar Das, the plea taken by the judgment-debtor was that there was no such Chela of Ram Rajeshwar Das. All these issues therefore were required to be decided in the light of evidence, but it appears that despite order to this effect passed by the court below on 6.1.2006 17 some compromise petition in form of an affidavit was filed wherein it was agreed that Mahantha Ramakant Das would be treated as eldest Chela and Mahantha Bimal Das would be second senior most Chela. It was only on such concession of Bimal Das that he will have no objection if Ramakant Das was substituted in place of Mahantha Ram Rajeshwar Das, that the impugned order dated 20.2.2008 had been passed by the Executing Court. It would thus be apparent that the requirement of order 22, rule 5 of the C.P.C. was never fulfilled and infact the Executing Court did not choose to make such enquiry and literally allowed the issue of substitution to be settled only on the basis of some compromise. The compromise petition filed by Ramakant Das and Bimal Das, the two claimant for substitution on the death of Ram Rajeshwar Das is Annexure II to this Civil Revision Application filed by the Board and makes an interesting reading which in extenso is quoted hereinbelow :- “The humble compromise petition on behalf of Sri Ramakant Das and Sri Vimal Das, the two claimants, for substitution on the death of Mahanth Ram Rajeshwar Das. Most Respectfully Sheweth:- 1.That the original decree holder Ram Rajeshwar Das died on 1.1.2003 and the petitioners are 18 fighting for substitution of their respective names in place of the decree holder. 2.That the matter is lingering for the petty long time and there is no end of litigation and their suit is also unknown, under the circumstances, both the claimants agreed to and the