MUKAREMDAS MANNUDAS Vs. CHHAGAN KISAN BHAWASAR

JUDGEMENT

(1.) THE plaintiffs filed the present suit for possession of a site ABCDE shown in the map filed with the plaint on the allegation that the land belongs to the Vaishnava Bairagi Samaj together with the structure thereon and 'he tombs and the temple and that the property constitutes a public trust. The suit was brought by five plain tiffs who claimed to be the members of this Vaish-nava Bairagi Samaj. It appears that there was an old structure on the property which was dismantled by the defendants, the present respondents, who built a new one on the property. There is no dispute that at one time this property used to be managed by one Narsindas Bhagwandas Bairagi who had three sons Bhagwandas, Narayandas and Laldas. Narayandas, who managed -he property after Narsingdas, had three sons Kisandas, Bisandas and Bandhudas, and it would appear that Bisandas mortgaged the property with Kisan, the father of the present defendant No. 1, on the 2nd of June 1927 for a consideration of Rs. 800/ -. According to the plaintiffs, this mortgage by Bisan das was without the consent of the Panchas of the Bairagi community and Bisandas had no right what ever to mortgage the land. On this mortgage, the mortgagee Kisan filed a suit, being Civil Suit No. 138-A of 1937, and a preliminary decree was obtained by him on 29th of April 1938. There was a final decree for sale of the property and, in execution of that decree, the property was sold and the decree-holder Kisan himself purchased it and obtained possession thereof on the 27th March 1943. Kisan died on 5-10-1947. The old structure on the property was dismantled by Kisan and a new structure was built on the land, ft would' appear that the plaintiffs objected to the building of this new structure and a notice was served on Kisan even during his life-time and plain tiffs gave an application to the Deputy Commissioner for permission to file a suit against the de ceased Kisan. It was held that no permission was necessary and, as Kisan had already died, the present suit was instituted against his son Chagan and others by the plaintiffs On the 26th of January 194s.

(2.) CHAGAN was the main contesting party and there is no dispute that the original defendants Nos. 2, 3 and 4 were added as pro forma parties. The defence of defendant no. 1 was that the property did not belong to the Vaishnava Bairagi Community as alleged by the plaintiffs but that Narsingdas and his heirs were owners of the buildings and the land and had the right to mortgage it with the defendant No. 1's father Kisan, Defendant No. l's father Kisan had obtained a decree and had become a bona fide purchaser for value at the Court sale without notice. The stand taken by the contesting defendant was that the mortgage created by Bisandas was a valid mortgage because the property belonged to the family of Narayanadas as their private property.

(3.) ON these pleadings, the trial Court framed a number of issues. It may be mentioned that the-plaintiffs had applied for permission to sue in a representative capacity under Order 1, Rule 8, of the Code of Civil Procedure, but it seems that though notices were issued, there is no formal order on the record showing the grant of permission. The trial Court came to the conclusion that the site-in suit ABCDE together with the structure standing thereon did not belong to the Bairagi Vaishnava Samaj as alleged by the plaintiffs. If also held that the site was not used for the purpose and benefit of the members of the Bairagi community, nor did Narsingdas and after him Narayandas look after the property on behalf of the Bairagi community It was further held that the plaintiffs were not the trustees of the Bairagi community but they could sue as its representatives. The trial Court's finding as regards the ownership of the property was that Narsingdas owned the site exclusively as his ancestral property. I may mention that it was the defendant's case that in a partition between the-sons of Narsingdas in the year 1895 the suit site had fallen to the share of Narayandas, and that contention was accepted by the trial Court. On these-findings the trial Court dismissed the plaintiffs' suit.