KUNWAR BHADUR Vs. BHAGWATI PRASAD

JUDGEMENT

(1.) This appeal by the defendants arises out of a suit for a declaration which has been decreed concurrently by the two Courts below. The suit was brought under Section 59, U. P. Tenancy Act, under the following circumstances :

(2.) Bhagwati Prasad, plaintiff, instituted the suit against five defendants upon the allegation that certain grove plots belonged to one Baijnath Brahman, who on 26th October 1933, executed what was styled as a shankalapanama for certain charitable objects named therein. He constituted himself as the sarpanch and four persons including the plaintiff as the panchas. Half the share in the shankalapnama property was in the possession of Durgavati Debi and Brij Lal, mortgagees under a mortgage executed by Baijnath himself. Durgabati had assigned her mortgagee rights in favour of Bhagwati Prasad. Brij Lal was, therefore, the mortgagee in respect of one-quarter share of the grove plots, bat he was employed at Calcutta. Bhagwati Prasad therefore was in possession of the entire grove plots and trees in his capacity as the sarpanch and mortgagee. The plaintiff's case was that under the shankalapanama he became the sarpanch on the death of Baijnath, which took place on 23rd October 1943, and that he was also in possession as a mortgagee by taking an assignment from one of the mortgagees. According to him the defendants ware trying to obtain possession of the shankalap property without any right and two of them had cut a mango tree and removed the timber on 29th December 1943. This date constituted, according to the plaintiff, his cause of action for a suit for declaration. The relief claimed was twofold. The fires relief was that the plaintiff was the grove-holder without payment of rent of the land covered by the grove plots in the capacity of a mortgagee and a sarpanch of Baijnath trust, and in the event of his failing to prove that capacity or in the event of the grove having lost its character as such, he was entitled to retain possession as a tenant. This relief was contemplated obviously under Section 206, U. P. Tenancy Act. The second relief asked for was that half the property should be entered in the revenue papers in the possession of Bhagwati Prasad and Brij Lal and the remaining half in the name of Baijnath trust as grove holder under the management of Bhagwati Prasad sarpanch free of mortgage.

(3.) The two material defences with which I am concerned in the present appeal were that the revenue Court had no jurisdiction to try the suit and that the objects of the shankalapnama being vague and indefinite, the property covered by it did not constitute a valid trust.