RAM KRISHNA DAS Vs. BINDESHWARI PRASAD

JUDGEMENT

(1.) This civil revision petition and miscellaneous appeal, both by the plaintiff, are directed against an order of the Subordinate Judge, 3rd Court, Patna, in Title Suit No. 122 of 1947.

(2.) In this suit, the plaintiff, as sebait of Sri Thakur Brindaban Behari having its temple at Mahalla Kazibagh, police station Alamgunj, and Sri Thakur Radha Rasik Mukutmani alias Sri Thakur Brindaban Rasik Mukutmani having its temple in Mahalla Gyangudri Darwaza, police station Brindaban, in the district of Mathura, United Provinces, sues on behalf of the Deities to recover certain property in Brindaban and in Patna. The property in Brindaban, according to him, forms portion of the temple there. It was sold on 14-11-1929 in execution of a decree dated 25-7-1928, in Suit No. 273 of 1928 in the Court of the Munsif of Mathura on the basis of a bond for Rs. 140, executed by Muneshwar Tewari, one of the then sebaits of the Deity. It is alleged that Muneshwar Tewari had no authority without the concurrence of the other sebaits to incur any liability on behalf of the Deity, and that the liability was incurred without any legal necessity and was not for the use or benefit of the Deity, and that both the decree and the sale in execution were collusive and the purchaser at the auction-sale was a friend of Muneshwar Tewari. Recovery of possession over this property is sought as against defendants 3 to 5, to whom the property has passed from the auction-purchaser by a series of private transfers. Two other transactions are impugned. One is a deed of rehan dated 4-2-1936 for Rs. 1,000 in favour of defendant 2, in respect of three pies share in Mauza Rasulpur Kateswar Tauzi No. 627C, executed by Ram Kewal Tewari, one of the then sebaits of the Deities. The other transaction is also a rehan, executed on 10-7-1937, by the aforementioned Muneshwar Tewari in respect of fifteen dams share in Mauza Rasulpur Kateswar Tauzi No. 627C, also in favour of defendant 2. These transactions are impugned on the same grounds, namely, that the sebaits could not, by their individual acts, bind the Deities, and: that the transactions were not for legal necessity or for the use or benefit of the Deities. According to the plaintiff, in both these transactions, defendant was the farzidar of Munshi Kanhaiya Lall deceased, father of defendant 1, and relief is sought as against defendants 1 and 2 in respect of these properties. Plaintiff is alleged to have become the sebait of the Deities in 1939. Only defendants 3 to 5 appeared and contested the suit and, at their instance, the Subordinate Judge considered first the issue regarding the jurisdiction of the Court to entertain the suit against the contesting defendants in respect of the property in Brindaban. Under Order 1, Rule 3, Civil P.C. all persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist, where, if separate suits were brought, any common question of law or fact would arise. The learned Subordinate Judge held that there were two distinct causes of action as against the two sets of defendants, and that the two conditions of Order 1, Rule 3, were not satisfied and, therefore, the plaintiff, by joining the two causes of action in one suit, could not confer jurisdiction on the Patna Court in respect of the property in Brindaban. On this finding, he came to the conclusion that the suit as framed was bad for multifariousness and directed the plaintiff to elect against which defendant or set of defendants he proposed to go on with the suit, the discretion to be exercised by 17-2-1948. failing which the plaint would stand rejected. The appeal and the petition in civil revision are "both directed against this order.

(3.) It is clear that no appeal lies against the order of the learned Subordinate Judge. The petition in civil revision will, therefore, be dealt with below.