SOMAR PURI Vs. SHYAM NARAIN GIR

JUDGEMENT

(1.) The plaintiff of the Court below is the appellant here. The appeal is from a decision of the learned second Subordinate Judge of Monghyr, dated 31-8-1946, in Title Suit No. 20 of 1944. The appellant brought the suit for a declaration of title and recovery of possession of certain properties said to appertain to Nongarh, Math, and described in Schedules I to VII appended to the plaint, and for mesne profits and costs. The appellant claimed that he was the duly elected Mahanth of a Math or Asthal called Nongarh Math in the district of Monghyr, elected in accordance with the custom or usage prevailing in the said Math. His case was that there was a temple of Lord Shiva in village Nongarh. Near about 1758 A.D. Sri Sri Amar Singh, the then Maharaja Gidhour, dedicated Mahal Nongarh tauzi No. 338, to Lord Shiva of the aforesaid temple. Thirty-two bighas of land situate in mahal Manjhwa, tauzi No. 8271 of the same district, where also there was a Shiva Temple, were similarly dedicated as Shivottar. It was alleged that both the dedications were for public, religious and charitable purposes, the purposes being (a) to make necessary arrangements for the worship of the idol of Lord Shiva, (b) for feeding, supporting and maintaining Sadhus, and (c) for giving alms to the poor. Since the creation of the endowments the Mahanth of Nongarh Math managed the properties; and the custom of the Math is that one of the disciples of the preceding Mahanth or, if there is no disciple of the preceding Mahanth, any suitable disciple of any previous Mahanth or grand chela of any previous Mahanth, residing in the said Asthal, is selected by the people of the locality to become the successor-in-office of the preceding Mahanth, who is installed to the office of Mahanthship by observance of certain religious and customary ceremonies. The appellant claimed that he was the disciple of Sri Pokhraj Puri, Gurubhai of Mahanth Shyam Lall Puri and disciple of Mahanth Gandhari Puri. After the death of Mahanth Gandhari Puri, Mahanth Shyam Lall Puri was elected to the gaddi in accordance with the aforesaid custom. After the death of Mahanth Shyam Lall Puri, Mahanth Lachuman Puri, disciple of Shyam Lall Puri, was installed in the gaddi by election according to the custom mentioned above. Mahanth Lachuman Puri began to live an immoral life and became addicted to drinks and other vices. He began to waste the endowed properties and make illegal alienations. In 1935 a suit (Title Suit No. 3 of 1935) was brought under Section 92, Civil P. C. in the court of the District Judge, Monghyr, for an adjudiaction that the properties appertaining to Nongarh Math were endowed properties for public, religious and charitable purposes and also for removal of Mahanth Lachuman Furi. It was stated that the District Judge in that suit held that the properties of Nongarh Asthal were trust properties endowed for public, charitable and religious purposes; but as there were no grounds for the removal of Lachuman Puri, the suit was accordingly dismissed. Mahanth Lachuman Puri died on 17-4-1940, without leaving any disciple. The appellant was then elected to the gaddi of Nongarh Math on 5-5-1940, and came in possession of the properties appertaining to the Math. It was stated that besides Mahals Nongarh and Manjhwa, there were about 100 bighas of raiyati lands situate in village Charan which had been acquired by previous Mahanths and had become part and parcel of the endowed properties. In paragraph 10 of the plaint, details were given of the alleged illegal alienations said to have been made by Mahanth Lachuman Puri, and it was stated that Mahanth Lachuman Puri sold the entire Tauzi No. 338 to the defendant second party, Mahanth Shamsher Gir of village Sibsona, by two sale deeds dated 3-12-1936 and 8-11-1937. Mahanth Lachuman Gir also sold the entire 100 bighas of lands in village Charan to the defendant fourth party. Mahanth Lachuman Puri alienated some of the lands of Mahal Manjhwa as well. All these alienations were challenged by the appellant as unauthorised, fraudulent and illegal. After the death of Mahanth Lachuman Purl, there was a scramble for possession and certain criminal cases and proceedings were instituted. The appellant alleged that though he came in possession of the Math properties, defendants first and second parties were always creating trouble and trying to take forcible possession. On 29-8-1944, a complaint filed by the appellant against the defendants first and second parties for an offence under Section 448, Penal Code, was dismissed by the Subdivisional Magistrate of Jamui, and the appellant was dispossessed of the Math and Math properties on that date. It was alleged "that the defendants first and second "parties also took possession of certain moveable properties of the Math described in Schedule VII. On these allegations the appellant asked for a declaration of his title as the duly elected Mahanth of the Nongarh Math and for recovery of possession of the Math properties which had been illegally alienated by Mahanth Lachuman Puri or were illegally possessed by the defendants.

(2.) The suit was contested by the defendants first and second parties as also by defendant No. 4. Defendant No. 4 was the alienee in respect of the lands in village Charan. Defendants 1 and 2 are alienees of Mahal Nongarh. Their case was that mahal Nongarh was given to a Sanyasi, one Sri Gossain Kundan Puri, a remote ancestor of Lachuman Puri, as his private property. It was denied that there was any Shiva temple either at Nongarh or at Manjhwa. The properties were never dedicated for public, religious or charitable purposes, and what appeared to be a temple of Lord Shiva in Nongarh was really a temple-like structure enshrining the old Samadhi of Gosain Kundan Puri. It was denied that there was any custom that the people of the locality selected a Mahanth in the manner alleged by the appellant; on the other hand, the defendants pleaded that the eldest chela used to succeed to the property and deal with it as his own private property. The defendants also denied the allegations made against Lachuman Puri and stated that all the transfers mentioned in paragraph 10 of the plaint were made bona fide and for consideration. It was alleged that Lachuman Puri had an absolute right to transfer the properties which were his private properties. The allegation that the appellant was elected as Mahanth and came in possession of the properties in dispute was also denied. It was alleged that the appellant never came in possession, nor was he the successor-in-office of Mahanth Lachuman Puri.

(3.) On the aforesaid pleadings several issues were framed. They were: