SUNDERLAL GOSWAMI Vs. JOGESHWAR PRASAD SINGH

JUDGEMENT

(1.) The plaintiffs are the appellants against a judgment of reversal. The plaintiffs' suit for a declaration that a sale deed, dated the 14th October, 1958, executed by defendant No. 2 (respondent No. 2 here) in favour of defendant No. 1 (respondent No. 1 here) was void and illegal, and for a further declaration that the same was not binding on the plaintiffs, with a further relief for recovery of possession, having been decreed by the trial Court, the Court of appeal below has reversed that decree and dismissed the suit.

(2.) The appellants' case, in short, was that cadastral survey plot Nos. 6066, 6067, 6068 and 6069, appertaining to cadastral survey khata No 401 of village Bithauli Khemchand, had been dedicated to Lord Shiva by the Darbhanga Rai long long ago. It was averred that the common ancestor of the plaintiffs and the defendants second party (respondents second party here) was a great devotee of Lord Shiva and so a rent-free grant of the lands aforementioned was given to him for maintenance and worship of Lord Shiva. The case of dedication was thus founded upon a lost grant, and it was further alleged that, after the death of the common ancestor of the parties concerned, the properties devolved upon his heirs, qua-sebaits. and all of them were jointly managing the properties for the benefit of Lord Shiva so that the properties so dedicated came to be called Shivottar properties. A further assertion in the plaint was that, in due course, the ancestors of the plaintiff-appellants and defendant second party-respondents came to be recorded in the survey papers with regard to the dedicated properties, and. finally, that, under the impugned sale deed, defendant No. 2 had illegally sold away cadastral survey plot Nos. 6066 and 6069, measuring 1.83 acres. The challenge to the validity of the sale deed was thus grounded upon the fact of inalienability in law of the properties so dedicated completely to Lord Shiva.

(3.) The defence of defendant No. 1-respondent No. 1 was a denial of any such dedication, and it was asserted by him that the usufructs of the lands in question were never utilised for the Seva-Puja of any deitv; and that the lands always remained the personal properties of the ancestors of the plaintiffs and the defendants second party, and, in due course, these parties came in separate exclusive possession of different portions of the above mentioned lands in their personal capacity, after due partition by metes and bounds.