Lawyers Directory Listing
Chat with us free on WhatsApp — tell us your city and legal matter and our team connects you with the right lawyer. No form, no fee.
Second Appeal No. 100, decided on 13th March 1962.
S. 42, proviso‑Possession neither with plaintiff nor defendants‑Suit for simple declaration maintainable ‑[Nirmal Chandra Banerjee v. Mahomed Siddik I L R 20 Cal. 11 (P C), Chinnammal and another v. Varadarajulu and another I L R 15 Mad. 307 and Satish Chunder Bhuttacharya and another v. Satya Charan Majumdar 14 C W N 567 rel. Ganesh Chunder Dhur v. Lal Behary Dhur and others 63 I A 448, 452; Bhabatarini Debi v. Asholata Debi and others 70 I A 57, 66, 69 and Manohar Mukherjee v. Bhupendra Nath Mukher jee I L R 60 Cal. 452 (F B) distinguished.
(b) Hindu Law
‑ Mutt Akhara ‑ Debutter ‑ Temple Mohunt ‑ Shebait ‑ Distinction ‑ Akhara, a private institution.
S. 32(7) read with S. 13(a) Written statement filed by third party, in previous suit by plaintiff Previous suit subsequently withdrawn‑Allegations in written statement not "transaction" within meaning of cl. (a) of S. 13, Evidence Act (I of 1872)‑Written statement, held, in admissible‑[Words and phrases]‑"Transaction"‑Civil Procedure Code (V of 1908), O. XXIII, r. 1‑Withdrawn suit regarded as "never brought."
‑[Translator from Devnagri language into Bengali] Statement recorded by High Court in second appeal‑Evidence Act (I of 1872), S. 45.
(e) Civil Procedure Code (V of 1908),
S. 103 read with O. XLI, rr. 23, 23‑A & 25‑Case vitiated by illegality or irregularity in procedure‑High Court reluctant to remand case‑Finding of fact may be interfered with in second appeal.
P. C. Pakrashi and P. K. De for Appellant.
U. K. Roy, Md. A. Aziz and Abdur Rab (1) for Respondents.
This appeal is by the plaintiff Baishnab Das Mohanta against the judgment and decree of the lower appellate Court in a suit for a declaration that he is the Mohanta or shebait of the deities of Behari Lal Jew Thakur Akhara said to have been established from time immemorial by some Baishnaba ascetic sadhu of the Ramayut sect (Ram Bhakta Baishnav Shapredays) at 27, Basanta Kumar Das Road, Farash ganj, Dacca, wherein the deities Sree Sree Radha Krishna Bigraha, Sree Sree Ram Chandra Lakhman and Janaki Bigraha and Laxmi Narayan Thakur Bigraha better known as Behari Lal Jew Thakur were consecrated in the temple of the Akhara.
2. Plaintiff's claim, shortly stated, is that the founder during his lifetime laid down rules consistent with the rules of succes sion of ascetic celebate of Ramayut Baishnaba sect and the said rules and directions, followed and observed from time imme morial, have been, inter alia, that the Shebaitship, i.e., Mohunt or Mohunt shebait is to be constituted by the nomination and appointment from disciple to disciple "Shishya‑Shishyanukrame" from the direct ascetic disciple line of the founder; and the founder and all his chellas or disciples are to remain life long Brahmachari celebate. The founder and after him the Mohanta so nominated and appointed by him is to nominate and appoint his own successors shebait from his own disciple, that is, Shishya who must be a Brahmin and must remain celebate Brahmachari and must reside in the temple or Akhara and must not eat and even touch fish and meat. If the last Mohunt fails to appoint or nominate his successor before his death, the elder members of that sect and community and shadhus in consultation with other members of their own sect are to select a senior and competent dieciple of the last Mohanta as a Shebait. This custom and rules of appointment of shebait were in vogue from time immemorial and the Sh:bait is called and styled as Mohanta. The Mohanta remains in management of the Akhara and its properties and Shabapuja of the deity from time immemorial, and other people have no right to interfere with the management of the Akhara and the sheva puja of the deity Behari Lal Jew Thakur and with the nomination and appointment of the Mohanta or shebait of the Deity.
3. This religious institution is known as Beharilal Jew Thakur Akhara or temple at 27, Basanta Kumar Das Road, Farashganj, Dacca and its ancient grant constitutes a private debuttor.
4. According to the plaintiff, one Sukram Das Mohanta who was such a Mohanta appointed Keshab Dasji as the next Mohunt because his own chella Rambari Das, the Guru of Keshab Dasji predeceased Sukram Das. The plaintiff who is a Brahmin celebate of Ramayut sect was the senior most chella of Keshab Das. This Keshab Das died on 13‑1‑1952 but shortly before his death, he nominated the plaintiff as his successor Mohant. At the time of the death of Keshab Dasji, the plaintiff was away from the Akhara in visiting holy places and he was informed of the death of Keshab Das Mohunt by his Kaka Guru Ram Dasji. He returned to Dacca on 30‑1‑52 and was made the Mohant of the Akhara and shebait of the deity in the customary ceremonies known as Bhandara performed on 15‑2‑52 by the Sadhus and Mohantas of various temples of his own Sampradaya Birak Baishnava sect (Ramayut Sect). Since then, he became the Mohanta and managed the affairs and the properties of the Akhara but on 22‑3‑52 the defendants illegally and wrongly tried to interfere with the peaceful management of the Akhara and Shevapuja of the deity by the plaintiff which resulted into several criminal cases in course of which some movable properties, keys of the iron safe and gold and silver ornaments (about 60 items) of the Akhara were seized by the police on 10‑4‑52 from the custody of the plaintiff and taken to the custody of the Court of trying Magistrate which is holding the same on behalf of the rightful owner and directed him, the plaintiff, to have his right of Mohantship or Shebaitship declared in a Civil Court to get back the articles. Therefore, the plaintiff has filed this suit against the defendants in a representative capacity under Order 1, rule 8 of the Code of Civil Procedure representing the Hindu public for a declaration as stated above and for all other reliefs to which he is entitled under the law and equity as the Court deemed fit and proper on the allegation that the defendants have no right by custom, rules or otherwise to attempt to usurp the function of management of the said Akhara and have no right to interfere with the duties of the plaintiff as shebait.
5. The suit was contested by defendants. Defendants Nos. 1 to 3 filed a joint written statement as members of an alleged Managing Committee of the disputed Akhara alleging that the Akhara and its properties are public debuttor managed by the public through the Managing Committee. The added defendants who are said to be the other members of the said Managing Committee also filed one written statement adopting the written statement filed by defendants Nos. 1 to 3.
6. They do not claim anybody else to be Mohunt or shebait or Mohunt‑Shebait of the Akhara nor do they deny the existence of the Akhara from time immemorial. What they contend in substance is that the Akhara in question is not a private Debuttor but a public Debuttor which is managed by the public through a Committee of Management. They denied that Sukram Das and Keshab Das were ever Mohunts or shebairs as alleged by the plaintiff and asserted that they were really pujaris and after the death of Keshab Das, Sarbeshwar Das was appointed as a pujari of the temple by the said Committee of Management of which defendant No. 5 is the President and defendant No. 1 is the Secretary.
7. Their further case is that the plaintiff had nothing to do With the management of the temple in question but wanted to occupy the Akhara and its properties forcibly posing himself as a Mohanta but he was not allowed to disturb the possession of the Akhara or to interfere with the Sheba‑puja of the Deity for which the plaintiff himself brought a case under section 144, Cr. P. C. They also denied the plaintiff to be a chella of Keshab Das and his nomination and appointment as Mohunta. They also pleaded, beside the bar of limitation and defect of party, that the suit as framed was not maintainable as the plaintiff did not pray for any consequential relief.
8. Trial Court dismissed the suit of the plaintiff holding that the plaintiff's suit was barred by limitation as he was dis possessed by Keshab Das in 1935 B. S.=1928 that is more than 12 years before; that the suit as framed for bare declaration was not maintainable under section 42 of the Specific Relief Act and that Keshab Das was not the Mohunta‑Shebait but a pujari of the temple, at least from 1945, under the Committee of Manage ment and as such he could not have nominated the plaintiff as his successor Mohanta after him. Trial Court further held that Keshab Dasji who died of paralysis and was in an unconscious state for 10 or 12 days before his death could not have nomi nated Baisbnab Das the plaintiff to be the Mohanta‑Shebait after him two days before his death nor the plaintiff was his chella because the feeling between Keshab Dasji and Baishnab Das, the plaintiff was strained as it appears from the plaint and the written statement of the suit filed by the plaintiff in 1930 against Keshab Das though it was ultimately withdrawn with liberty to file a fresh suit which the plaintiff never filed. Trial Court also found that Behari Lal Jeu Akhara in Farashganj was a public temple and was managed by a Committee of Management con sisting of the representatives of the Hindu public, though in the C. S. Khatian Sukram Das was recorded to be in possession as a Mohanta shebait of the Akhara on which alone, according to the trial Court, the plaintiff cannot succeed and he must prove that he was a chella of Keshab Dasji to be nominated by him as the next shebait.
9. On appeal by the plaintiff, the judgment and decree of the trial Court was set aside and the plaintiff's suit was decreed holding that the Akhara or temple was a private Akhara estab lished by a Baishnava ascetic sadhu of the Ramayut sect of Sree Sampradaya and it was made accessible to the public to increase the visitors and income of the Akhara and it was all through managed by Mohuntas and Sukram Das was such Mohunta previous to Keshab Dasji Mohunt, and Keshab Dasji became a Mohunta on the nomination of Sukram Das Mohunta and Sukram Das Mohunta is recorded to be in possession of the Akhara and its property as a Mohunfa in C. S. Khatian finally published in 1916, that the plaintiff Baishnab Das, a chella of Keshab Das Mohunta was nominated by Keshab Dasji before his death to be his successor Mohunt and there was installation ceremony by which he was installed as a Mohunt of the Akhara in the year 1952, and that the Akhara was never a public temple nor was it managed by the public by any Managing Committee, and that the plaintiff has become, according to the custo mary rule of succession, the Mohunta shebait of the Akhara.
10. On second appeal by the defendants, High Court set aside the judgment and decree of the lower appellate Court and remanded the case to that Court on the ground that the judgment of the lower appellate Court was not a proper judgment of reversal inasmuch as the lower appellate Court did not apply its mind to the evidence adduced by and on behalf of the defence, and observed as follows :‑
"In our opinion there is substance in the point urged by the learned Advocate for the appellants. We find from the records that as many as 18 witnesses were examined on behalf of the defendants and about 79 exhibits namely Exhs. A, A25 to Exh. P together with the series of some of them were filed by the defendants but no reference has been made to most of these exhibits, nor in respect of oral evidence adduced by the defendants except one sentence in the judgment.
"There is no satisfactory evidence to prove that Keshab Das Mohunta was unconscious due to paralysis arising out of high blood pressure at the alleged time of nomination of the plaintiff, as alleged by the defendants."
The learned Judges of the High Court also observed :‑
"The judgment of the trial Court which found in favour of the defendant‑appellants also seems scrappy as regards oral evidence and documentary evidence relied on by the parties and this is all the more reason why the appellate Court, which is the final Court of‑ facts and which reversed the decision of the trial Court, should have referred to all the evidence adduced by the plaintiff and the defendants . . . . . Both the Courts seemed to have been very sparing as regards the consideration of the evidence by the parties. We are not satisfied that the judgment under appeal is a proper judgment, of reversal."
11. It maybe mentioned here that Exhs. A to A25 are all signatures of Keshab Das one in each page of the long written statement filed by him in the suit of 1930 against him of which Exh. B is the certified copy.
12. After remand, the learned Additional District Judge, who happened to be the person other than the Additional District Judge who heard the appeal on the previous occasion thou, h found that the disputed Akhara was established by a Baishnava ascetic sadhu of Ramayut sect long ago and the management of the same from its inception all along remained with Mohunt or shebait belonging to the Ramayut sect and Keshab Dasji was such a Mohunt till his death in 1952, that the Akhara or temple and its property was never under the management of any Managing Committee nor the Managing Committee ever possessed the Akhara or its property and that there is no evidence of existence of any Managing Committee prior to 1945 and the evidence showing existence of such Committee after 1945 are all spurious and got up, created for the purpose of this suit (Vide issue Nos. 3 and 4 page 55 to 69 of the paper book) and that the story that Keshab Das died of paralysis in unconscious state was an after‑thought and set up by the defence after the closing of the plaintiff's evidence which the trial Court should not have allowed, dismissed the suit holding that that does not entitic the plaintiff to get the declaration sought for unless and until he proves his case that he was the chella of Keshab Das Mohunt and he was nominated by him before his death to be his successor Mohunt which according to the learned Judge the plaintiff failed to prove.
13. The learned Judge also held that the suit as framed without a prayer, at least, for injunction was not maintainable when it appears from plaintiff's own case that the defendants are interfering with his management and possession of the Akhara and its property.
14. Hence, this appeal by the plaintiff and a cross‑objec tion by defendant No. 8 against the findings of the lower ap pellate Court that the defendants have no interest in the Akhara and its properties and management thereof.
15. It may be mentioned here that no point of limitation was raised either before the lower appellate Court after remand or before us, I think rightly, as the plaintiff claims title as Mohunt or shebait by succession on the death of the previous Mohunt in 1952 in a suit filed in 1953, and therefore, no question of limitation can arise in the case.
16. The learned Advocate for the plaintiff‑appellant raised three contentions in support of the appeal.
His first contention is that in view of the facts and circum stances of the case and in view of the findings of the lower appellate Court itself that the defendants were never in posses sion or management of the Akbara and its property which was all along from its inception with the successive Mohunt of the Akhara, the Court of appeal below erred in law in holding that the suit is barred under section 42 of the Specific Relief Act for want of prayer for consequential relief, at least, in the shape of injunction.
His second contention is that the Court of appeal below is absolutely wrong in holding, contrary to evidence on record and relying on inadmissible evidence Exh. B written statement in the previous suit which was withdrawn with liberty to bring a fresh suit and on the wrong translation Exh. 13 of Exh. 4 a document drawn at the Bhandara and wrong translation Exh. 13 of Exh. 2 a letter written to the plaintiff and on the miscon struction of those two documents, that the plaintiff failed to prove that he was the chella of Keshab Das Mohunt and he was nominated by him to be his successor Mohunt.
His third contention is that the Court of appeal below misconstrued and misunderstood Exh. 4 and erred in law in not holding that Exh. 4 read with other evidence on record proves beyond doubt that the plaintiff was the chella of the last Mohunt and he was nominated by him before his death which was con firmed, recognised or affirmed by the other Mohunts and Sadhus of plaintiff's sect at the Bhandara.
17. On the other hand, Mr. U. K. Roy, the learned Advocate for the defendants‑respondents contends that Shebait ship is a property under the Hindu Law, the succession of which is to be governed by the Hindu Law of succession and the suit for Shebaitship in his absence of the deity and without a prayer for possession of the property of the temple of Akhara is not maintainable as it is hit by section 42 of the Specific Relief Act.
His second contention is that the findings of Courts below that the plaintiff failed to prove that he was a chella of Kesbab Dasji and was nominated to be the next Mohunt of the Akhara by him are findings of fact and cannot be interfered with in second appeal.
His third contention is that the written statement Exh. B of the previous suit is admissible in evidence under section 32 of the Evidence Act as statement of dead man.
18. Now, as to the maintainability of the suit, Mr. Roy's contention is that Shebaitship is a property and is not a mere office and therefore a suit for mere declaration will not lie. In support of this contention, Mr. Roy has referred to several decisions including the cases of Ganesh Chunder Dhur v. Lal Behary Dhur and others (63 I A 448, 452), Bhabatarini Debi v. Asholata Debi and others (70 I A 57, 66, 69) and Manohar Mukherjee v. Bhupendra Nath Mukerjee (I L R 60 Cal. 452 (F B)). All these cases are in respect of trust created with Shebaitship whereas the facts of the present case are quite distinguishable from the facts of those cases in that it is found by the Court of appeal below that the movable properties were in possession of the plaintiff and were seized by the police from him and kept in Court's custody till the right between the two rival claimants is decided by a Civil Court and referred the plaintiff to the Civil Court to establish his right to get them as Shebait or Mohunt in pursuance of which the plaintiff has filed the present suit. Of course, there are some immovable pro perties of the Akhara. It consists of only two plots of land C. S. No. 82 and t 3 of which plot No. 83 comprises building of the Akhara and temple only and plot No. 82 comprises shops in possession of tenants and the Court of appeal below found that these properties and the Akhara were all along in possession of the Mohunt of the Akhara including the last Mohunt Keshab dasji and the defendants were never in possession or management of these properties. Plaintiff's specific case is that after he became Mohunt, he was in possession and management of the Akhara and its properties and Sheva puja with which the defen dants are interfering leading to several criminal cases, as a result of which movable properties of the Akhara was seized by the police from him. It is admitted that this seizure was from the plaintiff. Even accepting the finding of the learned lower appellate Court that the plaintiff failed to prove his possession simply because he happens to reside at night outside the Akhara for fear of his life on account of the defendants, when the defendants also are found not to be in possession either indivi dually or as members of the Managing Committee and all the A documents produced in support of their possession, such as, rent receipts, collection books, including Exh. F and G to prove existence of Managing Committee of the Akhara were found to have been created or manufactured for the purpose of this suit, and the oral evidence on the side of the defendants are false what would be the position as to the maintainability of the suit as framed.
19. In the case of Nirmal Chandra Banerjee v. Mahomed Siddik (I L R 20 Cal. 11 (P C)), where a dispute arose between the two rival claimants of the self‑same property under the Land Registration Act (Bengal Act VII of 1876) and the registration of ownership was refused on the application of two rival purchasers of the same property, a reference concerning them was made to the High Court under section 55 of the Act, and one of the purchasers then sued the other, claiming a decree declaratory of his title under conveyances made to him in 1890. This suit was opposed amongst others, on the ground that a bare suit for declaration of plaip_tiff's title was not maintainable. The High Court in Original Side held:
"As regards the defendant's objection, that the plaintiff not being in actual possession cannot get a declaratory decree, I would observe that the plaintiff is as much in possession as the defendant; the fact is that neither party is in actual possession and neither is in a position to enforce the tenants to pay rent. If the plaintiff gets his title decreed as against the defendant, and gets his name registered, he gets all he wants. There will be a decree declaring the plaintiff's title to this property, with costs on scale 2."
This decision was set aside by a Division Bench of that High Court. On appeal to the Privy Council, the decision of the Calcutta High Court in the Original Side was upheld.
20. Similar is the view taken in the case of Chinnammal and another v. Varadarajulu and another (I L R 15 Mad. 307), where plaintiff's suit for a declaration of their title to certain lands in succession to their late husband alleging that they were in enjoyment of the land, but that the defendant claiming to be the son of the deceased husband of the plaintiffs, had tried to collect rent from the raiyats in occupation. An issue was raised as to whether the suit was bad by the proviso to section 42 of the Specific Relief Act for want of a prayer for relief consequential on the declara tion sought. It was held:
"It appears to us that the conclusion to be drawn from all the evidence as to possession is that possession of the whole property in dispute is neither with one nor the other of the contending parties. As might be expected in the case of a dispute as to the title to lands, most of which are in the actual occupation of raiyats, some of the ralyats recognize one claimant as their landlord, and some the other. Such a case is eminently one in which a declaratory decree is desirable, to avoid multiplicity of suits and obtain a decision once and for all, which shall secure peaceful possession of the pro perty. And we think there is nothing in the language of the proviso to section 42 of the Specific Relief Act to prevent the Court passing a declaratory decree in this case. It is only if the plaintiff being able to seek further relief than a mere declaration of title, omit to do so, that the Court is precluded from making a declaration of title. And what further relief could the plaintiffs obtain in this Not possession of the whole property in dispute, for admittedly the defendant is not in possession of the whole, and the raiyats, who do not recognize the defendant's title, would have to be made parties before possession of the lands in their occupation could be decreed to the plaintiff. And we can see no other prayer for relief which the plaintiffs could combine in this suit with the prayer for a declaration.
We must hold that a declaration of the plaintiff's title can be made in this suit if their title is proved.
So also is the view taken by a Division Bench of the Calcutta High Court in the case of Satish Chander Bhuttacharya and another v. Satya Charan Majumdar (14 C W N 567), where the plaintiff sued for declaration of title to certain lands alleging that the same were in possession of his tenants, but that the defendant had thrown a cloud on his title by recovering rent‑decrees against some of the tenants. The High Court held:
"That the plaintiff could not in this suit ask for any further relief than a mere declaration of title and was proceeding in the right manner in suing for declaration of title only."
In coming to this conclusion, the Division Bench of the Calcutta High Court has followed the decision of the Privy Council in the case of Nirmal Chandra v. Mahomad Siddik, cited above. At page 578 of the report, the learned Judges observed:
"We may, also, refer to the decision of the Judicial Com mittee in Nirmal Chandra v. Mahomed Siddik, in which the decision of Macpherson, J. was ultimately upheld. There, an objection w. s raised as to the form of the suit being one to obtain a declaratory decree only. In that case rival claimants had obtained decrees for rent each against some tenants of the property. Their Lordships thought that the suit being an attempt to put the whole title directly in issue between the principal claimants, it was not only the most convenient but a strictly regular way to bring the dispute to a close.
On these authorities, we think the plaintiff's suit was main tainable. We need not anticipate what may eventually happen if the plaintiff is successful in this litigation. His object being to obtain a declaration in order to dispel the cloud cast on his title by the action of the defendant, and, he being at present unable to seek any further relief, he has proceeded to the right manner."
21. It seems to us, there is some confusion not only in the minds of the Judges of the lower Courts but also to the learned Advocates of the parties on account of the bad drafting of the p plaint and misconception of the law and the distinction between Akhara and temple, Mohunt and Shebait under the Hindu Law. In the plaint, Akhara at 27, Basanta Kumar Das Road has been described sometimes as temple sometimes as Akhara and some times as Beharilal Jieu Thakur Akhara and sometimes as Beharilal Jieu Thakur Temple, and Mohunt sometimes described a: Shebait and sometimes as Mohunt and sometimes "Shebait was called and styled as Mohunt" and sometimes as Mohunt Shebait. Before we take up the other points raised, clarification of the law on these points is necessary.
22. In the Tagore Law Lectures on Hindu Law of Religious and Charitable Trust, Dr. Bijan Kumar Mukherjee, the late Chief Justice of the Supreme Court of India, dealt elaborately with the law on the points to show the distinction between the two namely Akhara and Temple; Mohunt and shebait. Accord ing to him Shebaitship is not a mere office, it is property as well, and the office and property are both blended in the conception of Shebaitship, the personal interest of a shebait being appurte nant to his duties and it devolves according to the Hindu Law of succession.
23. At page 317, he deals with the administrrAtion of mutts legal status, rights, duties, succession and powers of Mohunt. At page 325, the author writes as follows :‑
"A Brahmin ascetic as said above is known as yati or Sanyasi; a Sudra Sanyasi on the other hand is called a Pardashi. If a Sudra is attached to a Adhinam, he is called a ambiran and if he is at the head of the Adhinam, he bears the name of Pandara Sannadhi. "The term Sdhinam signifies the seat of the chief ascetic at the head of the religious association or brotherhood and takes its name from the village in which it is situated" (in the case of Giyana Sambandha v. Kanda sami (10 Mad. 375, 385). A Sanyasi when he becomes the superior or head of a Mutt is called Mohunt."
At page 326, the author says:
"The rules guiding these institutions of diverse types which have their origin in customs and usages followed by different religious orders vary widely from each other but nevertheless there are certain common features which are the essentials of a monastic institution and distinguish it from an endowment of the debuttor type.
The primary distinction between a debutter and Mutt lies in the fact that unlike debuttar where the essential or central part of the institution is a deity or idol, the presiding element in a Mutt is an ascetic or religious teacher who together with, his disciples and co‑disciples form a sort of spiritual family. Both a Mutt as well as a debutter owe their existence to benefactions or grants of property made by pious benefactors. In one case the grantee is an idol for whose ministration or service the debuttor is created; in the other case the result of the benefaction is the creation of an institution for the benefit of a fraternity of religious men at the head of which stands the superior or Mohunt, who represents the entire institution. Ordinarily an ascetic who renounces the world and devotes himself to religion, owes no property except perhaps his cloth, sandals, religious books and the like. He has no fixed place of residence and moves from place of place accepting such food and lodgings as are provided for him by pious house holders (in the case of Giyana Sambandha v. Kandnami) But if a pious ascetic gathers round him a number of disciples whom he initiates into the mysteries or tenets of his order and such of his disciples as intend to become ascetics renounce all connections with their family and claims no family wealth, and affiliate themselves so to say, with the spiritual teacher, a spiritual fraternity would eventually grow up. If now generous person endow the fraternity with property which vest in the preceptor for the time being and a home is created for the brotherhood, a Mutt or Muttum would be constituted (See Sammantha Pandara v Selleppa (2 Mad, 175).
Once a Mutt is established, succession to headship takes place within the spiritual family according to the usages that grow up in a particular institution. In a debutter on the other hand, the recipient of the property is the deity as a juristic person and the Sebaiti rights, unless otherwise disposed of, remain in the family of the donor and they devolve according to the ordinary laws of inheritance.
The differences in the origin of the two types of endowment account for a vital difference in their respective objects. The primary object of a debutter is to perpetuate the worship of a deity and the celebration of its rights and festivals in a par ticular way . . . . . The primary purpose of a Mutt on the other hand is to encourage and foster spiritual learning by maintenance of a competent line of teachers who impart religi ous instructions to the disciples and followers of the Mutt and try to strengthen the doctrines of the particular school or order of which they profess to be adherents. There is no doubt whatsoever that in former times these monastic insti tutions exercised considerable influence over the people who were in touch with them and the preceptors were also meant who combined in them high stani and of spiritual knowledge with moral purity."
24. The author attributes to this sort of monasteries or religious institutions the commentaries on the oldest Hindu sacred book Rig Veda and quoted what is said in I L R 27 Mad. 435 at 438 that the modern world owes its knowledge of the traditional meaning of the oldest sacred book Rig Veda through this sort of monasteries or religious institutions.
25. It is said, there could be no Mutt without a deity and the deity is the presiding element in both a Mutt and a temple, worship being prominent in both, though religious knowledge added to it in one of them. At page 328 the author states:‑
"If this was the correct statement of law there would be very little distinction between a Mutt and a debutter. A difference, however, exists and that of a vital nature which cannot be ignored by any means. It is not the object of a Mutt as in the case of a debutter to perpetuate the service or worship of an idol in a particular manner, the deity being the recipient and holder of the benefaction. The object of the Mutt is the propagation and strengthening of religious know ledge which might include the doctrines of a particular cult and this is done by maintenance of a competent line of teachers. If the worship of a personal God in a certain form is an essential feature of the religious doctrine of a certain order, obviously the worship of God in that form would be part of their religious teaching which would be the duty of any Mutt of that order to foster and encourage . . . . But there are religious orders like those of Sankara School which believe in monastic doctrine of the Vedanta and do not regard worship of a personal God as a necessary or essential part of the religious teaching. Even in Sankara Mutt there may exist a shrine for a particular idol but it cannot be said that the pre siding element in a Mutt must be a deity or that there cannot be a Mutt without an idol. A shrine or a temple may ordinarily be seen as an adjunct to a Mutt but it is not a necessary one and even when exists, it is not the chief or indispensable part of the institution. It is only auxiliary to the main purpose for which the Mutt is endowed and presid ing element in a Mutt is always the Mohunt or the spiritual preceptor. It is very properly observed by the Madras High Court in I L R 6 Mad. 287 that a place of worship is not a necessary part of a Mutt though it is often found in such institution and although primarily intended for the use of the inmates, the public may also be admitted to such place of religious worship" observed the learned author in his Tagore Law Lectures".
26. As to the legal status of Mohunt, the learned author says at page 342:
"The position as is now settled (settled by Privy Council decision in Vidyavarati's case, reported in I L R 48 I A 302) is that the Mahunt is neither a corporation sole nor a life tenant in respect of the Mutt property. He is also not a trustee in the sense in which the term is understood in English Law. Call it by whatever name, he is the manager or custodian of the institution and the property which he holds is not vested in him; it is vested in the institution and is held by him as a manager of the same."
27. Whether Mohuntship is property, the learned author at page 343 says that though there is no judicial decision on the point there is no reason why it should not be regarded as such, as the same reason for which shebaiti right is reckoned as property would apply to the right of a Mohunt as well.
28. As to the succession to the office of Mohunt, at page 344 of Hindu Law of Religious and Charitable Trust, the learned author states as follows :‑
"In such cases the rights of a shebait as I have already told you devolve like any other species of heritable property according to the law of inheritance. In a Mutt on the other hand it is the custom or practice of a particular institution which determines as to how a successor is to be appointed."
At page 345 it says :‑
"That may be taken to be settled law that the controlling rule with regard to the right to the office of the Mohunt would have to be found in the usages and customs of the institution provided that there are no rules relating to the same laid down by the founder but when there is no evidence of any direction given by the founder, the usages or practice that obtains in any particular institution is to be regarded as pre sumptive evidence of the grantor's intention."
29. As to the custom relating to appointment of Mohunt, it varies greatly from each other in different institutions. Of the three general classes of Mohunt, (Mourashi, Panchayati and Hakimi) Mourashi Mohunt is hereditary. At page 346, the learned author says:‑
"In a Mourashi Mutt the Chella or disciple of the last Mohunt succeeds to the office; in default of Chella the office goes to the Gurubhai or co‑disciple of the last holder, when there are more Chellas than one, the eldest generally succeeds
In various institutions custom is that in order to entitle a Chella to succeed, he must be appointed or nominated by the reigning Mohunt during his lifetime or shortly before his death . . . . . In other cases again the nominee is formally installed in the office and some sort of recognition is accorded to him by the members of the particular sect either during the lifetime of the last Mohunt or when funeral ceremonies of the latter are performed."
At page 355, the author stated:
"It was said by the Privy Council in Satnam Singh v. Bawa Bhagawan Singh (40 Bom. L R 912: A I R 1938 P C 216: 68 C L J 44), that in the normal case of the death of Mohunt, the members of the fraternity to which the deceased belonged are fully aware of the vacancy in the office and the usual practice is for the installation of his successor nominated by him during his lifetime to take place on a certain day after his death. The gathering, where the confirmation takes place, is known by the name of Bhane ara'. Wilson in his Glossary says that Bhandara' is an assembly of religious mendicants convened to celebrate the funeral obsequies of the deceased Mohunt or principal of an establishment of the order and to confirm the nomination by him of this successor
30. In the case of Dewa Das v. Shew Prasad Singh and others (A I R 1929 Pat. 531 at 536), it is observed:
"Assuming that the peculiar custom of nomination and con firmation set up in the present case has not been established, then the succession must follow the general Hindu Law on the subject and the general Hindu Law is thus described by Shamacharan Sircar in his Vyavastha‑Darpana, page 115, Vol. (Edn. 3).
Generally, the usage or custom of Mohanths is that the Mohanths or principal of every math or monastery selects his principal and most worthy pupil to succeed to him at his decease, that after his death the Mahunths of other similar institutes in the vicinage convene an assembly of the order, and perform his Bhandara, or funeral obsequies, at which they generally confirm the nomination made by the deceased and install the pupil he selected as his authorized successor; that if the Mahanth for the time being does not find any of his pupils worthy of the office he selects someone from any other math of the order and appoints him his successor, and his appointment is confirmed by the Mahanths convened at the Bhandara ; but where a Mahanth died without appointing a successor there his successor is selected generally from amongst his pupils by the Mahants convened at his Bhandara and invested with the Mahantaship of the math that if the person nominated by the late Mahanth be found by them to be unworthy of the offce, then they (the convened Mahants) elect a fit person and appoint him successor of the late Mahunth. In short, the installation of the successor by an assembly of Mahanths at the obsequies of a deceased Mahant is in all cases indispensable and conclusive and consequently, the appoint ment of a successor by the late Mahanth is not final so long as it is not confirmed by the mohunths convened at the Bhandara."
31. At page 330 of the Hindu Law of Religious and Chari table Trust, it is stated that Mutt or monastic institution pre supposes the existence of a spiritual family which is created and continued by adoption. The adoption into a religious order involves civil death. It follows that neither he nor his natural heirs can succeed him. He becomes the Chella or spiritual son of his Guru and his property if acquired subsequently passes on his death to his Chella who is recognised as spiritual son.
32. From what has been stated above from the Hindu Law of Religious and Charitable Trust, we get amongst others two things one is the mode of succession to the Mohantship and the other is the origin and the characteristic of the institution) Akhara. Akhara originates from an individual ascetic Sadhu of l a particular cult or tenet who together with his disciples and co- disciples form a sort of spiritual family and its aim and purpose is propagation of religious knowledge which may include the), doctrine of a particular cult or tenet. If the worship of a personal God in certain form is an essential feature of the religious doctrine of certain order, obviously the worship of God in that form would be a part of their religious teaching but it cannot be said that the presiding element is a deity. A shrine or a temple may ordinarily be seen as an adjunct to a Mutt but it is not a necessary one nor even indispensable part of the institution though primarily intended for the use of inmates, the public may also be admitted to such place of religious worship and that the property given for benefaction of the Akhara vests in the institution of which Mohunt as the head of the institution manages the property.
33. So it is clear and apparent that an Akhara which originates from an individual ascetic Sadhu of a particular sect of certain order and the aim and purpose of which is propagation of religious knowledge of a particular cult and doctrine is a private institution in the sense that it is limited to that sect of that order though the place of religious worship often found in such institution is accessible to Hindu public for worship alone but that would not make the institution a public debutter to be managed or controlled by the Hindu Public in general.
34. In the present case all the P. Ws. 2‑12 who are either illiterate or half‑literate are not expected to know the law relating to Mutt or Akhara or Mohunt elaborately testified all that are necessary to prove plaintiff's case out of what have been stated so elaborately in the law of Hindu Religious and Charitable Trust. It is found on evidence that the Akhara was established by one Kripasindhu, a Baishnava ascetic Sadhu of the Rama yut sect (Ram Bhakta Baisnab), vide Trial Court judgment at page 14 (of the paper book). It is also found by the lower Appellate Court after considering all relevant evidence adduced on both sides that it has been abundantly proved that the management of the disputed Akhara was all along with Mohunt or shebait belonging to the Ramayut sect that Sukram Das was one of such Mohunt and after him Keshab Das became a Mohunta (vide p. 55, 69 P. B). It is also in evidence that the Akhara is in existence from the time of Mogul Rule (P. W. 1) and the Akhara and its properties were in possession of the Mohunt of the Akhara in succession from a very long time, from the time of Farashi or French Government "Khatian No. 6999 ka of Lakheraj land, Farashi Government" (Vide Khatian Exh. 17), and the defendants who represented the Hindu public was never in management or possession of the Akhara and its properties. It also appears from Exh. 17 the Khatian that the predecessor of Sukram Das Mohunta was also a Mohunta, namely, Lachman Das Mohunt These facts establish that the Akhara is an ancient one and the head of the institution is Mohunt from time immemorial by succession, and the Mohunt as the head of the institution is all along in the management of the Akhara and its properties.
35. Therefore, it can safely be said that the Akhara is a private institution in the sense that it is limited to the Baisnaba ascetic sadhu of the Ramayut sect though the place of worship, that is, the temple in it, is accessible to the Hindu public for worship and other meritorious religious acts alone.
36. The lower appellate Court did not decide whether the Akhara with its properties is a private or public one, because in its opinion "It is also not very important for the purpose of the present suit" and also because "It is extremely difficult to come to any definite conclusion relying on the oral evidence or witnesses of both sides who have really got no personal knowledge regarding the inception of the Akhara in question."
37. The difficulty is not on account of the evidence of wit nesses who have no personal knowledge of the inception of the ' Akhara but the lack of clear consumption of Hindu Law as to the origin and characteristic of a religious institution called Math or Akhara. It is also necessary to decide as it goes to the root of the plaintiff's claim.
38. Some of the defendants also claim to be Baisnava but admittedly not of Ramayut sect. At page 335 the author of the Hindu Law of Religious and Charitable Trust stated "Vairagees are a class of Vaishnaba ascetics in lower Bengal who do not renounce the world in the proper sense of the word. They buy and sell, marry and have children, in fact they do not give up their household status. In case of Vairagees, succession is regulated by ordinary law and not by the special rules laid down by Yagnavalka."
39. Now coming to the main question whether the plaintiff was the Chella of the Mohunta Keshab Dasji and if he was nominated by him to be the next Mohunta of the Akhara, we find that the plaintiff, in support of his case, examined a number of witnesses including himself, namely, P. Ws. 2, 3, 4, 5, 6, 7, 8, 9, 10, 11 and 12 P. W. 2 is the plaintiff himself, P. Ws 5, 6, 7, 8, 9, 10, 11 and 12 prove that the plaintiff is Baishnab of Ramayut sect and is the Chella of Keshab. P. Ws. 4, 6, 7, 8 and 11 prove nomination and all of them proved Bhandara i.e., the ceremony on which he was recognised confirmed or installed to be the Mohunta and some of them proved Exh. 4, the document drawn up to that effect. Most of them are of Ramayut sect, some of whom saw the plaintiff to become the Chela of Keshab Dasji and some others were actually present when Keshab Dasji nominated the plaintiff as his successor. Mohunta. He also produced Exh. 4, a document showing that he being the nominated Chella of the last Mohunt Keshab Dasji, was installed or confirmed as Mohunt of the Akhara. The learned Additional District Judge, it appears, disbelieved the oral evidence of all of them on the point of the plaintiff being the chella of the last Mohunt Keshab Dasji on one ground or the other, which are not at all convincing, relying on Exhs. B and O, written statement and plaint respectively in the suit filed by the present plaintiff against Keshab Dasji in 1930. We do not understand how these Exhs. B and O, written statement and plaint particularly Exh. B, the written statement in that suit, which was withdrawn with permission of the Court with liberty to file a fresh suit, can be admissible in evidence and relied on. Exh. B is a certified copy of the written statement filed by Keshab in that suit. Exh. O is the certified copy of the plaint of that suit.
40. It is contended by Mr. Roy, the learned Advocate for the respondents, that Exh. B is admissible under section 32 of the Evidence Act as a statement of a dead man. All statement: of a dead man are not admissible into evidence except those mentioned in clauses (1) to (8). It is admitted by Mr. Roy, that this written statement does not come under any of these clauses except clause (7) which runs as follows :‑
"When the statement is contained in any deed, will of other document which relates to any such transaction as is mentioned in section 13 cl. (a)".
Section 13 clause (a) provides as follows :‑
"Where the question is as to the existence of any right or custom, the following facts are relevant :‑
"(a) any transaction by which the right or custom in question was created, claimed, modified, recognised, asserted or denied or which was inconsistent with its existence."
The statement in the written statement is a denial that the plaintiff of that suit, namely, the present plaintiff Baishnab Das was the disciple or chella of Keshab Das.
41. Now the question is whether the written statement is a transaction. Transaction has been defined in many cases. Garth, C. J. in the case of Gujj Lal v. Fatteh Lal (I L R 6 Cal. 171) stated:
"A transaction in the ordinary sense of the word, is some business or dealing which is carried on or transacted between two or more persons."
Transaction in its largest sense means that which is done. Even a judgment between the parties was not easily admitted to be a transaction though many latter decisions in which judgments have been held admissible under section 13, indicate that the preponderance of opinion is in favour of the view expressed by Mitter, J. in the case of Gujj Lal v. Fateh Lal. Again it is not every transaction which is admissible in evidence under section 13 but "any transaction by which a right or custom asserted or denied." Here the written statement, Exh. B is filed as evidence neither by the person who filed it in the previous suit nor any of his representative and it is not between the parties of the present suit but by the third party defendants. Therefore, it is not a transaction within the meaning of section 13 (a) of the Evidence Act nor it is a transaction by which any right is asserted or denied. It has been held, by a Division Bench of the Madras High Court in the case of Sari Palli Venkatarayagopala Raju v. Fota Narasayya (A I R 1915 Mad. 746), that the written statement filed by the defendants in suit to which they are parties and in which they had made recitals were not admissible in evidence either under section 13 (a) as a transaction or under section 32 as an admission against interest. Further it has been held by Suhrawardy, J. in the case of Becharam Chowdhuri and others v. Purna Chandra Chatterji and others (A I R 1925 Cal. 845 at page 851), that when a suit was allowed to be withdrawn with liberty to bring a fresh suit under Order XXIII of the Code of Civil Procedure it should be regarded as never brought. It is available for no purpose. It does not save or give fresh start to limitation ; nor does it afford a fresh cause of action.
42. Further it appears that the issue in the previous suit was whether the plaintiff in that suit, that is, Baishnab Das, the present plaintiff, was the Chela of Keshab Dasji. The same issue is involved in the present suit. To admit the assertion of Keshab Das in the previous suit into evidence against the plaintiff on the same issue in the present suit will be to decide the issue without testing the truth of it and without deciding the issue on merit either in this suit or in the previous suit which was completely withdrawn including the issue in that suit. It is said that the suit was withdrawn as the relationship between the Guru and the disciple was restored between the parties. Be that as it may, we do not understand how can the written statement in that suit be admissible in evidence against the plaintiff in this suit. It appears that the learned Additional District Judge is very much influenced by what has been stated in that written statement by Keshab Das himself against the present plaintiff though the truth of those allegations were never tested by the Court. The learned Additional District Judge, it appears from the very commencement of discussion of this issue No. 5 (at page 70 of the paper book) in his judgment being very much influenced by that written statement Exh. B, had minimised the oral evidence of witnesses which is apparent from his discarding each and every witness on one or the other unconvincing and flimsy grounds. The learned Judge not only included inadmis sible evidence Exh. B into his consideration but also excluded totally from his consideration two important evidence Exh. 2 and Exh. 4 which go to support the plaintiff's case that he was the chella of the last Mohunt Keshab Dasji though the learned Judge used these two documents against the plaintiff on the question of nomination on the misconstruction due to wrong translation of them.
43. It appears that the letter Exh. 2 said to have been written to the plaintiff and the document Exh. 4 said to have been written in the Bhandara were misconstrued and on that misconstruction they were made much of against the plaintiff by the lower appellate Court to disbelieve the plaintiff's case and his witnesses on the question of his nomination. They were not properly translated and the translations are Exhs. 13 and 13 (a) respectively which misled the learned Judge. So we had to examine one Moulvi Jaffar Hossain Siddiky, who is admitted by both sides to be well versed in Devanagri language on 20‑12‑61 and 22‑12‑61 and got these two documents trans cribed into Bengali in this Court in his reading out the original G documents, in the presence of the lawyers of both the parties with their consent and they have admitted that they have been correctly transcribed. They are marked as X and Y for identi fication. It appears that the learned Additional District Judge though found that Exh. 4 is a genuine document and relied on its wrong translation, was misled to a great extent to use it against the plaintiff due to wrong translation and also due to his misunderstanding of the rule of Hindu Law and mistook the installation or recognition of the nominated Mohunt for election or selection which in the opinion of the learned Judge, is con trary to the case set up by the plaintiff though, in fact, it is confirmation of his case of nomination set up by him.
44. As to the letter, the learned Additional District Judge commented on that the letter as it bears the date 18‑1‑52, but the cover, in which it was said to have been sent, bears the postal seal dated 17‑1‑52. It appears that on this ground of difference between the two dates the learned Judge seems to discard it as spurious but at the same time used it against the plaintiff to disbelieve his case of nomination, because there is no mention of the fact of nomination which would have gladdened the addressee.
45. The difference in dates is not an un-usual phenomenon. It appears from the evidence of Jaffar Hossain Siddiky that the writer of this letter was half literate. He, like many others, might have committed a mistake in putting the date at the top of the letter. This letter has been proved to have been posted on the very day it was written and it has been proved by the person who wrote it and the writer through whose pen it was written. None of them was asked a single question about the discrepancy in the two dates though the learned Judge used this discrepancy against the plaintiff. As to the reason of not mentioning about the nomination, the letter itself clearly refers to a previous letter already written to the plaintiff for which it might not have been thought necessary to mention it again, but the letter itself pointed to or directed towards that end in view, as will appear if whole of it is considered. Of all the people of that sect, why the plaintiff alone by that letter was insisted by the inmates of the Akhara to come back hurriedly saying that otherwise "the Astana Kharab Ho Jayega" i. e. the Akhara will be spoiled or damaged (Vide translation of Exh. 2. marked X2 for identification).
46. As to Exh. 4, the document written at Bhandara or installation ceremony and signed by all Sadhus and elders of Ramayut sect, pointedly refers to the fact that the plaintiff is the Chella of the last Mohunt Keshab Das and his nomination was approved by all the Sadhus and elders of that sect. "In the presence of all and according to old tradition, the Mohuntai has been awarded, on instruction from Mohantajee's Gurubhai Sree Ramdas Moharajjee, to Sree Baishnab Dasjee, the pupil of Mohanthjee " i.e. "No one opposes it nor any opposition should be entertained." (Vide translations of Exh. 4, marked Y2). It is not an election but a deed of confirmation or installation of the nominated one to the Mohuntaship, which is absolutely necessary in the Mourashi Mohunt under the Hindu Law and custom attached to this Akhara as testified by all the plaintiff's witnesses.
47. In the circumstances, at one stage, under the impres sion that the findings of fact arrived at by the lower appellate Court cannot be disturbed by us in second appeal, we decided most reluctantly (because the case was once remanded by this Court before) to send the case back on remand to the lower appellate Court for findings on these points after reconsidering the evidence on record including the Exhs. 2 and 4 their correct translations but after excluding from consideration Exh. O, the plaint and Exh. B, the written statement in the previous suit, we dictated judgment to that affect; but at the time of scrutiny of the transcribed judgment we felt difficulty to justify such order of remand either under rules 23 or 23A or rule 25 of Order XLI of the Code of Civil Procedure. In our anxiety, we found out the required power in the provision of section 103 of the Code of Civil Procedure as amended in 1926 enabling the High Court to interfere with the findings of fact in second appeal if these findings are vitiated by any illegality or irregularity in the pro cedure and the case Brojendra Kishore Roy Chowdhuri v. Mohin Chandra Bhattacharjee and others (A I R 1927 Cal. 1) is in point. So, we put the case for further hearing and heard further the learned Advocates of both sides and got the two exhibits. Exhs. 2 and 4 translated into Bengali and English and marked the Bengali translations as X1 and Y1 and English translations as X2 and Y2 respectively for identification, and considered them along with the oral evidence in the record as indicated in our judgment, independently of Exhs. O and B which we have held to be inadmissible in evidence.
48. It may be mentioned here again that the evidence is one‑sided on these points as the defence case is that it is a public debutter managed by the Hindu public through the Managing Committee which was negatived by the lower appellate Court, and those findings of the lower appellate Court are the subject- matter of the cross‑objection which we shall deal with later on. In view of these defences the defendants could not set up any other case except the case of denial of the plaintiff's case and could not and did not adduce any evidence except the evidence of denial that the disputed Akhara was not a private institution, that Keshab Das was not a Mohunt but a pujari and the plaintiff was neither a chella of Keshab nor he could be nominated and, in fact, was not nominated to be the next Mohunt and the Akhara and its property was never managed by the Mohunt.
49. So, considering the facts and circumstances and the law on the subject and all the relevant evidence on record we have no doubt in our mind and it is proved beyond doubt that the plaintiff was the chella of the last Mohunt Keshab and he nominated the plaintiff to be his successor Mohunt of the disputed Akhara which is a private institution in the sense it is limited to the Baishnaba Sadhus of Ramayut sect to which the plaintiff belongs and his nomination was confirmed at the Bhandara and the plaintiff is entitled to the declaration asked for to that effect. So we hold that the contentions of the learned Advocate for the plaintiff appellant are of substance.
50. As to the cross‑objection Mr. Roy made a grievance of non‑consideration of the oral evidence of other defence wit nesses regarding the defence story of the management of the Akhara by a Managing Committee because of the observation of the learned Judge in his judgment at page 64 of the paper book that it is useless to discuss the oral evidence of the other defence witnesses regarding the story of the management of the disputed Akhara by a Managing Committee. The learned Judge after considering Exhs. D series, K series, L series, Exh. P and after finding that there is some important piece of documentary evidence to prove that the management of the Akhara in question was always in the hand of a shebait or Mohunt belonging to Ramayut sect and Exh. 17 (C. S. Khatian published in 1916 is the earliest record went on to consider the defence evidence such as Exhs. C. C(1) and C(2). F. G. I. J J(2) and deposition of D. Ws. 9, 10 and 16, Exh. 14 (deposition of defendant No. 1 himself in the criminal case) and having found that these docu mentary evidence relied on by the defendants are false and fabricated and manufactured by the defendants for the purpose of this suit and the evidence of D. Ws. 9, 10 and 16 are false, observed at page 64 of the paper book as follows:
"After finding that no reliance can be placed upon the exhibits and the witnesses, who were specially recommended to me by the learned Pleader for the defendant‑respondents, I find it useless to discuss the oral evidence of the other D. Ws. regarding the story of the management of the disputed Akhara by a Managing Committee,"
which does not mean that he did not consider the evidence of other D. Ws. but did not discuss their evidence in the judgment.
51. The learned Judge has given very strong reasons why reliance cannot be placed upon the documentary evidence and witnesses who were specially recommended to him by the defendants Pleader. I believe, anyone reading his judgment on this point from pages 55‑64 of the paper book will be convinced of the correctness of his findings. In the circumstances, if he has not discussed the oral evidence of other D. Ws. on whom the defendants themselves did not rely so much, the learned Judge cannot be blamed. The reasons given by the learned Judge are so strong that even Mr. Roy the learned Advocate for the respon dents, could not raise any voice of protest against any one of them. Further Mr. Roy has not referred to us any evidence of any D. W. which he considers material on this point which the learned Judge has not discussed.
52. The learned Judge did not stop there. He proceeded to consider the documentary evidence of the plaintiff, such as, Exh. 17 (C. S. Khatian of 1916), Exh. 11 (Account Book of the Akhara), Exh. 3 (rent receipt granted by no less a person than defendant No. 3 himself), Exhs. 7 to 7 (e) (electric bills), Exh. 10 (registered document where Keshab Dasji is described as Mohunta of Beharilal Jieu Akhara), Exh. 15 (written objection in 144 Cr. P. C. case where the defendants admitted Keshab Dasji as Mohunt of the Akhara), Exh. N. (judgment of Sessions Judge showing that Keshab, the Mohunta of the Akhara, died in January 1952) and Exh. 14 (deposition of defendant No. 1 himself in 488, P. P. C. case against the plaintiff where he admitted that Sukram Das and after him Keshab Das, both of whom were Ramayut sect, were Mohunt as in possession of the Akhara) and the evidence of Sudhir, P. W. 16, the rent collector of the Akhara along with the fact of non‑production by the defendants of the subscription books, jama‑kharcha book, counter‑foil book admit tedly kept with D. W. 16 though called for, and accepted the contention.
"It has been. abundantly proved beyond doubt that the management of the disputed Akhara was all along with person called shebait or Mohunta belonging to the Ramayut sect and Keshab Dasji was such a Mohunta."
These findings of fact based on evidence cannot be disturbed in 2nd appeal in the absence of anything showing that any of these findings is vitiated by any illegality or irregularity and in fact none of these findings except the finding about the manage ment by Hindu public through the Managing Committee has been challenged before us. Still for our satisfaction, we, ourselves looked into the evidence of those D. Ws. whose evidence have not been discussed by the learned Judge in his judgment, but we do not find anything material which can go to affect the findings arrived at by the lower appellate Court on the point.
53. In these circumstances, we hold that there is no sub stance in the cross‑objection.
54. The result, therefore, is that we allow the appeal and set aside the judgments and decrees of both the Courts below and decree the suit of the plaintiff with costs in all the Courts includ ing those of the High Court against the defendants. The plaintiff is declared to be the Mohunta shebait of Beharilal Jieu Thakur Akhara or temple in suit. The cross‑objection is dismissed with out any order as to costs.
A. H.
Dealing with a matter like this? Connect with a verified advocate in your city — free on SJP Lawyers Directory.
🔍 Find a Lawyer