BHAGWAN SITARAM KHASALE Vs. NAMDEO NARAYAN GORE

JUDGEMENT

(1.) THIS is an appeal against an order passed by the First Additional District Judge, Yeot-mal, dated the 26th June 1958, removing the appellant Bhagwan from the trusteeship and sarpanchship of a public religious endowment known as Shri Dutt Deosthan, Kalamb, tahsil and district Yeotmal. The facts preceding the application dated 19-10-1957 upon which the order under appeal came to be passed arc not in dispute. On 3-6-1928 one Kasabai widow of Krishnaji Gore executed a deed of trust. By that deed she dedicated a field, survey No. 39/1, area 10 acres 32 gunthas, of Kasha Kalamb, to the temple of Shri Dutt Dcosthan. By the same deed she appointed five persons including the appellant Bhagwan as trustees. Of the other persons appointed as trustees, one D. B. Sarda is no longer alive. The principal trustee and the Sar-panch was the appellant Bhagwan. One of the trustees, the respondent No. 2 Dattatraya, resigned on 31-1-1932.

(2.) IN 1949 this Dattatraya and one Namdeo Narayan Gore tiled civil suit No. 4-A of 1949 praying inter alia for the removal of the appellant Bhagwan from the trusteeship and Sarpanchship of the Deoslhan and for various other directions. The Other surviving trustees, namely, Laxman Gangaram Deshmukh and Dacla Vithoba Khasala were defendants in that suit. On 7-8-1950 a preliminary decree was passed by the First Additional District Judge, Yeotmal, giving certain directions which are material for the purposes of this appeal but disallowing the prayer for the removal ot the appellant from the trusteeship. Against this decree the appellant Bhagwan moved the then High Court at Nagpur in First Appeal No. 150 of 1950 and by the judgment of a Division Bench of this Court dated 28-11-1956 the appeal was dismissed. A cross- appeal filed by the plaintiffs in the suit praying that their prayer for the removal of the appellant Bhagwan had been wrongly disallowed was also dismissed, with the result that the appellant Bhagwan continued as the Sarpanch and trustee of the said Deosthan but was subject to the directions given in She two decrees. In those proceedings in paragraph 17 of the trial Court's judgment dated 7-8-1950 the following directions were given: "issue No. 9: I order the defendant No. 1 to associate the other Panchas in the matter of the management of the field and the temple. He will along with the defendants 2 and 3 select two Panchas in order to make the required number of five. This he will do within two months from today. One of the Panchas will be the plaintiff No. 2 if he is willing. The defendant No. 1 shall never arrange the annual dinners in his house and always arrange them in the temples. The defendant No. 1 shall every year from date of suit show the accounts to the Panchas and obtain their signatures in token of consent or obtain their written objections. He shall render to the plaintiffs and the defendants 2 and 3 accounts of the management of the field and the temple from 1933 till the filing of the suit. The plaintiffs' claim for removal of Panchas is dismissed". It was this judgment which was confirmed in First Appeal No. 150 of 1950. The present appeal arises out of an application filed by the plaintiffs in that suit on 19-10-1957.

(3.) BY that application the plaintiffs complained that the defendant No. 1 Bhagwan, the appellant before me, had not complied with the directions contained in paragraph 17 quoted above which were subsequently incorporated in a preliminary decree dated 12-8-1950, nor had he carried out the directions of the final decree passed in the suit on 24-11-1950. It remains to be stated that pending First Appeal No. 150 of 1950 before the High Court proceedings were taken in pursuance of the preliminary decree before the trial Court. A commissioner was appoint- ed to take accounts and in pursuance of the commissioner's findings a final decree came to be passed on 24-11-1950. By this final decree, the defendant No. 1 Bhagwan was ordered to pay back to the trust Rs. 1000-14-9 which were, held to be monies belonging to the trust but which he had failed to pay back to the trust or account for. The present application dated 19-10-1957 filed by the plaintiffs before the trial Court complained not merely that the directions of the preliminary decree had not been carried out but also that the amount ordered to Be deposited under the final decree dated 24-11-1950 had not been deposited. It will be seen from this statement of the facts that the complaint was that the defendant No. 1 Bhagwan had not complied with the directions of the preliminary decree or the final decree, nor had he deposited the amount due under the final decree for a period of nearly seven years from the date of the final decree.