KUNWAR SINGH Vs. SRI THAKURJI MAHRAJ

JUDGEMENT

(1.) THIS is a defendant's Second Appeal. The trial court on 30th April, 1974 dismissed suit no. 60 of 1971 in which the plaintiff claimed the cancellation of a sale deed dated 27th May 1969 with respect to certain agricultural plots and also the delivery of the possession of the said plots after the ejectment of the defendants. The other usual reliefs were also claimed. The lower appellate court by its judgment and decree dated 3rd December, 1976 reversed the decree of the trial court and decreed the suit.

(2.) THE material averments in the plaint are these. One Thakur Jodha Singh was the zamindar. He owned Sir land. During his life time he created a public trust by means of a registered waqf deed dated 24th September, 1934 whereby he endowed his sir land, which formed part of agricultural plots (hereinafter referred to as the plots in dispute; in favour of the plaintiff (Sri Thakurji Mahraj Birajman Mandir) for the maintenance and upkeep etc. of the temple and the Bhog expenses of the plaintiff THE plots m dispute were recorded in the revenue papers as the sir of the plaintiff. During his life time Thakur Jodha Singh remained the Manager of the temple and thereafter amongst others Ganga Nandan Chela Bramha Nandan became the Manager. THE plots in dispute were cultivated by the Managers on behalf of the plaintiff Preceding Baba Sant Ram Dass, the present Mahant and Sarbarkar of the plaintiff, Jagan Nath Dass was the Mahant and Sarbarkar of the plaintiff. On 27th May, 1969 Jagan Nath Dass executed a sale deed and transferred the pilots in dispute to the defendants for an alleged consideration of Rs. 30.000/-. THE plots in dispute measured 33 bighas, 18 biswas and 10 biswansis. During the tenure of managership of Ganga Nandan, Jagan Nath Dass with the connivance of the Lekhpal got his name entered in the Khasra record On acquiring this knowledge, Ganga Nandan moved an application in the form of objection before the Sub Divisional Officer concerned under section 240 of the U. P. Zamindari Abolition and Land Reforms Act (hereinafter referred to as the Act) in compensation proceedings. This case was registered as case no. 157 of 1957 (Ganga Nandan v. Jagan Nath Dass). In the said case, a compromise was arrived at on 21st December, 1957 in which Jagan Nath Dass admitted the title of the plaintiff. He agreed to manage the plots in dispute as the Manager of the temple without any right to sell or mortgage the same. This compromise was duly executed by the parties and was filed in the case. It was duly recorded and the proceedings were disposed of by an order dated 21st December 1957 in terms of the compromise. THE said compromise was acted upon thereafter. Jagan Nath Dass continued to be the Mahant and Sarbarkar of the plaintiff from the date of the said compromise. After some time he became dishonest and manoeuvred to get the plots in dispute recorded in his personal name in the revenue records. He obtained a Bhumidhari Sanad with respect to the said plots and thereafter executed the impugned sale deed. On these facts coming to light the Hindu Public of the village concerned removed Jagan Nath Dass; from Mahantship and duly appointed Baba Sant Ram Dass as Mahant and. Sarbarkar of the plaintiff. Jagan Nath Dass died in January, 1971.

(3.) THE findings recorded by the lower appellate court are these. THE suit is maintainable at the instance of Sant Ram Dass. Dhiram Dass could not become an Adhiwasi within the meaning of section 20 (b) of the Act. Since he was also recorded in the khasra of 1359 Fasli and was, therefore, a person in cultivatory possession in 1359 Fasli year and he could acquire Adhiwasi right under section 30 (b) of the U. P. Land Reforms (Supplementary) Act, 1952. Jagan Nath Dass was not the chela of Dhiram Dass. After the demise of Dhiram Dass, Dhiram Dass left no chela and the name of Jagan Nath Dass was fictitiously recorded in his place even though he was not in possession over the plots in dispute. Kunwar Singh, one of the defendants, has admitted in his deposition that the plots in dispute were the personal property of Jagan Nath Dass and the same had no concern with the temple nor he was the Sarbarkar of the temple and that he used to live in Bareilly. He also admitted that Jagan Nath Dass is the chela of Narain Dass. THE terms of the compromise as recorded in proceedings under section 240 of the Act were binding upon Jagan Nath Dass. Inspite of the rejection of the objection, there is no evidence that compensation was paid to Ganga Nandan. On account of the compromise entered into, Jagan Nath Dass had also given up his right and title, if any, in the plots in dispute. Since the compensation was not paid, hence a mere recital in the compromise that compensation shall pass to Ganga Nandan was of no avail. After the compromise the status of Jagan Nath Dass or Dhiram Dass prior to the date of compromise became immaterial as Jagan Nath Dass himself accepted to be acting as Mahant THE giving up of his rights over the property and his acceptance to act as Mahant implies that he accepted the objection of Ganga Nandan; that, in fact, Dhiram Dass had started looking after the property at the instance of Ganga Nandan when he was sick and the entries by the Lekhpal in the revenue record were fictitious. In the absence of any evidence that compensation statement was prepared or compensation was paid to any party, it is clear that no compensation statement was prepared nor finalised as provided under section 240-K and hence Jagan Nath Dass was never declared a Bhumidhar or sirdar and, therefore, he had no right to obtain bhumidhari sanad Jagan Nath Dass could not wriggle out of the compromise. Jagan Nath Dass, so long as he remained the Mahant, could not claim any interest adverse to the plaintiff. Section 49 and section 27 of the U. P. Consolidation of Holdings Act could not be pressed into service by the defendants as Jagan Nath Dass got possession as trustee under the compromise in proceedings under section 240G of the Act and thereafter if his name continued in the revenue record, it shall be held that he held the property as a Mahant of the temple and he has no transferrable right therein. An admission is the best evidence and Jagan Nath Dass is bound by his admission made in the compromise in proceedings under section 240G, Jagan Nath Dass was neither the Adhiwasi nor the Sirdar. THE defendants could not get any advantage of section 41 of the Transfer of Property Act THE defendants are not transferees for full value. Since the property belonged to the temple, therefore, even if it is assumed that the defendants got possession from the date of the sales deed i.e. 27th May 1969, the suit filed on 25th February 1971 was within twelve years and, therefore, clearly within time.