BRIJ MOHAN Vs. MAINA

JUDGEMENT

(1.) THIS was a suit brought by the Respondents and another for a decree declaratory of their right in a ghat, and also for certain relief specified in their plaint. The suit is governed by Act I. of 1877, the 42nd section of which deals with declaratory decrees. By that section it is enacted that "Any person entitled to any legal character, or to any right as to any property, may institute a suit against any person denying, or interested to deny, his title to such character or right; and the Court may in its discretion make therein a declaration that he is so entitled; and the plaintiff need not in such suit ask for any further relief. Provided that no Court shall make any such declaration where the plaintiff being able to seek further relief than a mere declaration of title omits to do so." The Plaintiffs, representing the body of a sect called Sannadhias, set out in their plaint what they considered to be the rights of that Section and they stated therein their grounds for asking for a declaratory decree. In paragraph 6 they say: "That Bindraban Das, when he was alive, laid out Rs. 100 in the repairs of the ghat. He died at Mathra on or about the 5th of October, 1879. When he was alive he deposited Rs. 900 with Bhagwan Das, with instructions to use the money in the repairs of the Bisram Ghat; and Bhagwan Das having failed to use the money in the repairs of the ghat, Panna, deceased, the father of Madan, Defendant, and Chatraban, Defendant, instituted a suit without joining Plaintiffs, and with a view of depriving them of their right in the Munsifs Court at Mathra for Rs. 1000, on declaration that they alone were the mutawallis (managers), and under a fictitious deed of compromise obtained a collusive decree on the 21st of December, 1882. Through, collusion they had it recorded in the deed of compromise that Rs. 600 had been laid out in the repairs, and with reference to the balance of Rs. 400 a payment by instalments of Rs. 80 a year had been agreed, and the application filed by the Plaintiffs in the Munsif's Court at Mathra, praying to be joined as a party, was disallowed on the 14th of September, 1883. That was one of their grounds for asking the Court to exercise its discretion in making a declaratory decree. The next ground was: "That a fictitious suit was instituted by Changaji and others against Panna and others, Defendants, in this Court, and Plaintiffs filed an application in this Court, also praying to be joined as a party under Section 32 of the Civil Procedure Code; but the said application was disallowed on the 3rd of July, 1883, and Plaintiffs were not joined as a party. That all the Defendants to this suit have colluded with one another, and have taken collusive proceedings in the Munsif's Court at Mathra, and in this Court, with a view of depriving Plaintiffs of their right. They declare themselves to be the owners, and deny Plaintiffs' right; hence the cause of action arose on the 11th of August, 1882, the date of the institution of the suit in the Munsif's Court at Mathra, and on the 14th of February, 1883, the date of the institution of the suit in this Court at Agra. "They then stated what the relief was which they sought, and they prayed judgment for" a decree for the declaration of the Plaintiffs' right as mutawalli and manager of the Bisram Ghat, and all the temples attached to the same, to the extent of one-third, be passed in favour of the Plaintiff as head of the Sannadhias against his brother Sannadhias, "and that it might be likewise declared in the said decree that" Defendants alone were not owners and mutawallis of the said ghat." It appears to their Lordships that the Plaintiffs have made no case. They have not proved that they were entitled as mutawallis and managers of the Bisram Ghat to one-third of the offerings made by their followers, and they could not be entitled to have a declaration that the Defendants were not the sole owners, unless they could prove a right on their parts to be part owners. Having asked for a declaratory decree, they go on in pursuance of the Belief Act to allege that," The collusive decree obtained by the Defendants from the Munsif's Court at Mathra against Bhagwan Das, for which Defendants have declared themselves liable under the deed of compromise, having been set aside, its amount be recovered from the Defendants, and it be used in the repairs of the Bisram Ghat, either with the consent and management of the parties or through an official of the Court."

(2.) THERE were many witnesses examined, and considerable discrepancies in the evidence given. The first Court laid down certain issues, the fourth issue being, "Are the Plaintiffs guardians of Bisram Ghat, vested with a right to receive the offerings made in it, to superintend the repairs and erection of the building there, or are they priests at Swami Ghat, plying their professional duty there?" It might be that they were priests of Swami Ghat, and yet might also have an interest in Bisram Ghat. The whole point of the issue is-were they guardians of Bisram Ghat, with a right to receive the offerings made in it, and to superintend the repairs and erection of buildings there? The Subordinate Judge delivered judgment, in which he said: "The Plaintiffs in this case have no connection with the Bisram Ghat; they are Sannadhia Brahmins, having no concern whatever with the property which was used by the Chaubeys as the place of their worship. Bisram, Ghat is the worshipping place of the Chaubeys, in the vicinity of which the Plaintiffs, who are Sannadhias, have their temples. My inspection of the place has fully convinced me of this. The documentary and oral evidence abundantly establish this conclusion to my entire satisfaction. Both sects, the Sannadhias and the Chaubeys, are bitter enemies to each other, and could not be expected to have a common place for their worship." Having come to that conclusion, he dismissed the Plaintiffs' suit with costs.

(3.) THE High Court dealt with the case in the same general terms. The Subordinate Judge had heard the witnesses. He had better opportunities of judging of the evidence, and of the several discrepancies, than the High Court, who did not hear the witnesses or see their demeanour. The High Court did not decide whether the Plaintiffs were the mutawallis, entitled to one-third, but they -said: "In support of their case they produced a firman of the Emperor Furrukh Shah." It appears to their Lordships that that firman, as it is called, did not vest any right in. either party, and is not a document which can be held to support the case either of the one side or of the other; but the High Court attached some importance to it. The judgment continues: "The Plaintiffs produced oral evidence of witnesses which go to support their assertions; and it seems to be virtually conceded that if they do belong to the Chaubey sect they are entitled in respect to the ghat to enjoy the privileges and rights of the Chaubey community concerned therein." The learned judge who delivered the judgment then proceeds: