BHAGWAN SITARAM Vs. NAMDEO NARAYAN

JUDGEMENT

(1.) THIS is an appeal against an order passed by the First Additional District Judge, Yeotmal, dated June 26, 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 October 19, 1957, upon which the order under appeal came to be passed are not in dispute. On June 3, 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 Kasba Kalamb, to the temple of Shri Dutt Deosthan. 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 Sarpanch was the appellant Bhagwan. One of the trustees, respondent No. 2 Dattatraya, resigned on January 31, 1932.

(2.) IN 1949 this Dattatraya and one Namdeo Narayan Gore filed civil suit No. 4 -A of 1949 praying inter alia for the removal of the appellant Bhagwan from the trusteeship and Sarpanchship of the Deosthan and for various other directions. The other surviving trustees, namely, Laxman Gangaram Deshmukh and Dada Vithoba Khasala were defendants in that suit. On August 7, 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 of 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 November 28, 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 the two decrees. In those proceedings in para. 17 of the trial Court's judgment dated August 7, 1950, the following directions were given:

(3.) ONE of the prayers in the present application was that defendant No. 1 Bhagwan should be removed from the management of the trust property and as a Panch and that the said property should be entrusted to some other Panchas. After considerable delay the defendant Bhagwan filed a reply to this application and denied all the allegations made therein except that he admitted that a decree had been passed against him for a sum of Rs. 1,000 -14 -9. In regard to this amount his reply was that since he was himself the Sarpanch and the money was ultimately to be paid to him, he had not paid the money to the Deosthan because he himself would have received it. At the stage of evidence, however, the defendant Bhagwan remained absent. He was put ex parte and the application dated October 19, 1957, has been allowed against him upon the ex parte evidence of plaintiff No, 2 Battatraya. The learned trial Judge framed issues as to whether the amount of Rs. 1,000 -14 -0 was due from him and whether he had not complied with the decree during the past nine years. On issue No. 2 regarding the alleged mismanagement of the trust property, he held that the defendant Bhagwan had been mismanaging the trust property. He had neither repaired the temple, nor appointed any priest for its worship and the building was getting damaged. He also held that he had not shown accounts to his co -trustees from April 20, 1949, to October 7, 1950. His accounts moreover were suspicious, unreal and false. The trial Court also held that he had leased the only property of the trust, namely, the field survey No. 39/1 of mouza Kalamb, to near relatives of his during the last seven years to the detriment of the trust income. In 1956 -57 he had received lease money of Rs. 125 but he had shown that amount in his account books as being only Rs. 80 and had misappropriated the balance. The trial Court also came to the conclusion that while normally the lease money of the field should have increased, the appellant had been showing lesser and lesser amounts in his accounts and that those accounts were false.