KSHIRODA Vs. DEBENDRA NATH KAR

JUDGEMENT

(1.) On 18th April, 1946, the respondent plaintiff instituted the present suit for a declaration inter alia, that he was the sole shebait of the deity Sri Sri Iswar Dadhi Paban alias Dadhi Baman Jiu Thakur and for confirmation of his possession in that capacity, or, in the alternative, for recovery of possession upon a further declaration that the Criminal Court's order under Section 145 of the Code of Criminal Procedure in the defendant No. 1 appellant's favour in respect of the said land was illegal and not binding upon him (the plaintiff). In the plaintiff's suit, there were other consequential prayers in the shape of injunction and recovery of mesne profits. The suit was decreed by the trial Court and, on appeal, that decision has been affirmed by the learned Subordinate Judge. The contesting defendants Nos. 1 and 2 have now come up in second appeal.

(2.) There is no dispute that the suit property belongs to the deity Sri Iswar Dadhi Baman Jiu Thakur. The contest really centres round the question as to whether the respondent-plaintiff is the sole shebait of the said deity or whether the defendant No. 1 appellant is also a co-shebait. The plaintiff's exclusive title to the disputed shebaitship was found by the learned Munsif upon consideration of the alleged Nirdeshnama, said to have been left by common ancestor Gopi Charan alias Gopi Mohan, of which Ex. 7 was put forward by the plaintiff as a true and correct copy, and also upon a previous appellate decision (Ex. 1 (b)) in a former suit (Rent Suit No. 1247 of 1937) which was held to be inter partes and res judicata on the point. The lower appellate Court has upheld the decree only on the ground of res judicata while differing from the trial Court on the question of construction of the Nirdeshnama and also its authenticity, rejecting the copy (Ex. 7) as inadmissible in evidence.

(3.) On the materials before me, the latter part of the decision of the learned Subordinate Judge, namely, on Ex. 7, seems to be quite correct both as to construction and admissibility, and the other question also, namely, res judicata, appears to have been rightly decided by him. On Ex. 7, I have little to add to the judgment of the learned Subordinate Judge but the question of res judicata presents some apparent difficulty and requires a little discussion and elucidation.