GOPAL KRISHNA Vs. LAL KISHAN

JUDGEMENT

(1.) THIS second appeal arises out of a suit for declaration, possession and for damages for use and occupation.

(2.) THE facts in brief are these: In the district of Agra in Tehsil Kiraoli there is village known as Chauma Shahpur. THE village is in two parts- one is known as Chauma and the other is known as Shahpur. An old temple of Shri Gopal Krishna Bankey Behariji is said to exist at Shahpur and the plaintiff No. 1 is said to be the said deity installed in the said temple. Plaintiffs Nos. 2 to 6 reside in the said village and worship in the said temple. THE deity sued through Baba Premanand who claimed to be the manager and pujari of the deity in the said temple. It was alleged that the defendant, Shri Lal Kishan, was formerly managing the said temple and was the pujari of the same. He left managing the plaintiff No. 1 and kept some idols in his own residential house situated at Chauma and began to claim that the old temple of the plaintiff No. 1 was at his residential place at Chauma and not at Shahpur. THE plaintiff asserted that there was no temple at Chauma and the deity really stood installed in the old temple at Shahpur. THE deity owned the land of Khata No. 64 situated in Shahpur Bandpura, detailed in Schedule A to the plaint and the defendant was formerly managing the said landed property in his capacity as the manager of the deity. Subsequently, he began to assert wrongly that the said landed property belonged to the alleged temple at Chauma. It was further claimed that the plaintiffs Nos. 2 to 6 raised subscription from the people of the village and carried out repairs to the old temple at Shahpur as the defendant had ceased to look after the said temple. It was further alleged that the defendant, even though called upon to do so, did not agree to manage the temple at Shahpur and to spend the income out of the plots of Khata No. 64 towards the Sewa Puja of the plaintiff No. 1. THE defendant refused to deliver possession of the plots to the plaintiffs. It was further alleged that the Gram Samaj also passed a resolution for expunging the name of the defendant from the revenue records and for arranging for some other person to manage the temple of the plaintiff No. 1. A case was also instituted before the S.D.O. Kiraoli for the correction of papers but the same was dismissed on the ground that the controversy needed to be settled by a civil court. Hence, the plaintiffs instituted the suit in question. THE plaintiffs claimed the following main reliefs: (A) That it be declared the old temple of Shri Gopal Krishna Bankey Behariji is situated at Shahpur also known as Bandpura, Tehsil Kiraoli, District Agra, and the plots detailed in Schedule A to the plaint are attached and belong to the said idol. (B) That a decree for possession over the plots detailed in Schedule A to the plaint be also passed in favour of the plaintiffs against the defendant. (B1) That a decree for net profits or damages for use and occupation, future and pendente lite at Rs. 2500/- P.A. be also passed against the defendant in favour of the plaintiff."

(3.) THE defendant filed an appeal in the lower appellate court and the same was allowed. THE judgment and decree of the trial court were set aside and the plaintiffs' suit was dismissed. THE plaintiffs have now come up in the instant second appeal and in support of the same I have heard Shri G. C. Bhattacharya, learned counsel for the appellants. In opposition, learned counsel for the defendant-respondent has made his submissions. THE lower appellate court held the suit to be not maintainable on two grounds. Firstly, it was held that it was barred by S. 92 C. P. C., and secondly, it was held to be barred by S. 331 of the U. P. Zamindari Abolition and Land Reforms Act, 1951. THE said court has also stated in its judgment that the reliefs for possession and mesne profits were not pressed before it. Shri Bhattacharya sought to contend that the concession made in the lower appellate court was not binding on his client. Ground No. 21 in the grounds of appeal is as follows :- " Because the concession made by the counsel for the appellant regarding relief of possession and mesne profit is not binding on the appellant as the same is contrary to law and without the consent of the appellant. Further such concession has no effect in law."