RAM RATAN LAL Vs. KASHINATH TEWARI

JUDGEMENT

(1.) This is a plaintiff's appeal from the judgment of Raj Kishore Prasad, J. affirming the judgment of the Additional Subordinate Judge of Arrah, dismissing the plaintiff's suit under the following circumstances.

(2.) The plaintiff claimed to have taken on rehan a double-storied building in Arrah town for a sum of Rs. 15,000 from the defendants 1st party sometime in 1947. Subsequently he allowed the defendants 1st party to occupy the house on payment of monthly rental to him, and when the rent was not paid according to the terms of the kerayanama the plaintiff obtained an order from the House Rent Controller for the eviction of the defendants 1st party. But when he attempted to execute that order of eviction in Execution Case No. 63 of 1955, an objection was raised by a deity said to have been located in the house of the defendants 1st party on the ground that the property was debottar and hence could not be alienated. In Miscellaneous Case No. 77 of 1955 (Ext. B(3) ) the Munsif, 1st Court, Arrah, upheld the claim of the objector deity under Order 21, Rule 58, Code of Civil Procedure, and the plaintiff as the unsuccessful party brought the suit under appeal under Order 21, Rule 63, Code of Civil Procedure. Defendants 1 to 7 were impleaded as defendants 1st party; defendant No. 8, the deity, was impleaded as defendant 2nd party purporting to act through one of the minor sons of defendant No. 1, Kashi Nath Tewari under the guardianship of his mother; the defendant 3rd party is a cosharer of defendant No. 1 and the defendant 4th party is another aliened of a portion of the building from defendant No. 1.

(3.) <FRM>JUDGEMENT_235_AIR(PAT)_1966Html1.htm</FRM> Admittedly the house originally belonged to Lachuman, after whose death (his sole son Sukhdeo predeceasing him) it devolved on his widow Phula Kuer. That lady, on the 25th February, 1912, executed a waqf deed (Ext D(1) ), in fulfilment of the directions given by her deceased husband, dedicating the house in favour of an idol (Thakurji) which was said to have been installed in a room in the house. The entire property was dedicated to the idol with a direction that the expenses over the ragbhog, puja arena of the deity and the repairs of the Thakurbari should be met from the income of the house and the land attached to the same. On the same day she executed a deed of trusteeship (Ext. E), appointing herself as the first Mutwalli of the waqf property with a direction that after her death her husband's agnate, Kishun Tewari, and a stranger to the family, Lalji Upadhya, should be the trustees (Shebaits) of the said endowment. The lady died soon afterwards and then another waqf deed was executed on the 2nd December, 1913 (Ext. D), by Ghanshyam Tewari, Kashinath Tewari and Kishun Tewari. In this document the previous waqf deed of Musammat Phula Kuer was mentioned but it was slated that as a Hindu widow she was not competent to create a deed of waqf and that further the said waqf deed was not acted upon. These three executants, therefore, made, as it were, a fresh dedication of the same property 1o the said deity, constituting themselves as the Shebaits (Mutwallis), Kishun having 8 annas share and Ghanshyam and Kashinath the remaining 8 annas share equally. The plaintiff alleged that the so-called deed of endowment was never acted upon, that Ghanshyam, Kashinath and Kishun treated the property as theirown personal property, partitioned the same, sublet certain rooms to tenants and also made alienations. The rehan in favour of the plaintiff was however made by Kashinath Tewari and his sons. The plaintiff, therefore, claimed that the decision of the learned Munsif, who decided the claim case against him, was wrong, that the property was never debottar and that he was entitled to execute the decree obtained by him against the defendants 1st party for eviction in the House Rent Control case.