PROBIR CHANDRA PAL Vs. PANCHANAN CHOUDHURY

JUDGEMENT

(1.) This suit was brought by several deities through Panchanan Choudhury described as their shebaits. Though in a part of the plaint, language was used drawing distinction between fee shebait plaintiff and the deity plaintiffs, it appears clear, taking the plaint as a whole, that the suit was brought by the deities through Panchanan Choudhury as shebait and that the prayer that Panchanan's shebaiti right be declared was only for the purpose of establishing the maintainability of the suit. The relief sought was the declaration of the deities' title to the lands described in the schedule and for possession on eviction of the defendants. The previous shebait Hem Chandra had put the defendants in possession on giving a permanent lease in their favour; in a previous litigation brought by Panchanan as prospective shebait of the deity the permanent lease has been declared invalid and that is no longer disputed. The plaintiff's case is that the right of the defendants to be on the lands came to an end at least on the death of the previous shebait Hem Chandra and that the defendants are continuing in possession after Hem Chandra's death wrongfully and that the deities are entitled to get possession on evicting them. As to how Panchanan became shebait, it was stated in the plaint that when Hem Chandra and his brother's daughter Basanbala were the only shebaits, Basanbala surrendered her own shebaiti right to him and on behalf of her minor son Bholanath transferred Bholanath's shebaiti right also to Hem Chandra so that Hem Chandra became the sole shebait with the consequence that on Hem Chandra's death, Panchanan being Hem Chandra's heir as a sister's son became shebait of the deity.

(2.) The defendants pleaded that the suit being brought by Panchanan only was not maintainable as there were other shebaits one being Bholanath's widow Jatanbala. It was further pleaded that in any case the defendants had acquired an occupancy raiyati right in the lands and were not liable to eviction. Several other defences including the denial of the deities' title to the lands appear to have been taken at the trial but we are no longer concerned with them as the findings thereupon have not been disputed. The suit was decreed by the trial Court & the appeal has been dismissed. Both the Courts have rejected the plea that the occupancy raiyati right was acquired by the defendants. On the question whether there was any other shebait the trial Court did not come to any conclusion, but held that in the absence of evidence that the persons who have not been made parties, managed the properties and carried on the worship of the idol, the suit could not be held to be not maintainable. The court of appeal found that Jatanbala was also a shebait, but Panchanan was the de facto shebait and so the suit was maintainable.

(3.) It is urged before us on behalf of the defendants who are the appellants here that the Courts below have erred in law in holding that the suit was maintainable arid in rejecting the defence plea that the defendants had acquired occupancy raiyati right.