SURENDRANATH SARKAR Vs. SREE SREE ISWAR LAKSMI DURGA ESTABLISHED BY HARACHANDRA KUNDU THROUGH THEIR NEXT FRIEND, SHEBAIT SAILENDRANATH KUNDU

JUDGEMENT

(1.) Defendants 1 to 3 are the petitioners before us. They filed this application for leave to appeal to His Majesty in Council under the provisions of Section 109, Civil P.C. The judgment of this Court is not a judgment of affirance. Besides, the proposed appeal to His Majesty in Council involves substantial questions of law. As it is a judgment of reversal, two questions will have to be determined before we can grant leave. The first question is whether the value of the subject-matter of the suit and of the proposed appeal is over Rs. 10,000; and the second is whether the proposed appeal is against a decree or final order of this Court. On the first question a report was asked for from the lower Court and that report is that the subject- matter of the suit and of the proposed appeal, which are three leasehold properties is valued at Rs. 35,000. The plaintiff opposite party does not challenge the report of the learned Subordinate Judge. The first condition, therefore, is satisfied. The only other point for consideration is whether the proposed appeal is against a decree or final order passed by this Court. On that point, the parties, viz., the petitioners to England and the plaintiff opposite party are at issue. The contention of the petitioners is in the first instance that the challenge order amounts to a decree and, secondly that in any event it is a final order. Both these positions are controverted by Mr. Gupta who is appearing for the plaintiff opposite party.

(2.) For the purpose of deciding this question, it is necessary to state in brief the nature of the suit, the contentions of the respective parties therein and the decision arrived at by this Court by Mukherjea and Biswas JJ. The plaintiff instituted the suit as the next friend of a number of deities Sree Sree Iswar Lakshmi Durga and others. The suit was for the recovery of the temple in which those deities were located, for moveable properties belonging to the said deities described in schedule kha and immovable properties which the plaintiff described in schedule ka of the plaint. His case was that he was the sole shebait of the said deities at the time of his suit, inasmuch as the other shebaits had forfeited their rights, that some of the former shebaits had unlawfully alienated the temple and the immovable properties belonging to the deities by granting four leases to the defendants. On a declaration that those leases were not binding on the deities he prayed for the recovery of the properties covered by those leases, also of the temples and the moveable properties. The defence of the defendants was, first, that the plaintiff was not the shebait of the deities; secondly, that he was estopped from challenging any one of the aforesaid four leases and that in any event the four leases were valid leases and binding on the deities. It is not necessary to state the other defences which were raised in the suit. No question turns upon the first lease now, because the final decision of this Court was that that lease which was for a term of years had spent itself before the suit.

(3.) All the three Courts, viz., the Court of the Subordinate Judge who heard the original suit, the Court of the Additional District Judge of the 24 Parganas who heard the first appeal and this Court which heard the second appeal came to the conclusion that the plaintiff was the sole shebait of the deities and that the fourth lease was inoperative. The learned Subordinate Judge and the learned District Judge, however, held that the second and the third leases were binding on the deities. On that finding both the Court of first instance and the first appellate Court dismissed the plaintiff's claim to possession of the immovable properties covered by the second and the third leases. The second appeal was first heard by a Division Bench consisting of S.K. Ghose and Mukherjea JJ., who kept the appeal on their file but requested the lower appellate Court to determine certain questions of fact and to send the findings on those questions to this Court. The findings on those points which had been remitted to the lower Court were received and another Division Bench of this Court, viz., Mukherjea and Biswas JJ. (S.K. Ghose J. having then retired), heard the case and pronounced their judgment on 19th March 1941, which is reported in Iswar Lakshmi Durga Har Tatneswar V/s. Surendra Nath ( 41) 45 C.W.N. 665. The learned Judges came to the conclusion that the second and the third leases were inoperative. A further point which was raised by the defendants in the lower Court but not decided by it was then considered. It was to this effect, namely, whether the plaintiff could recover possession of properties included in the second and third without indemnifying the defendants for the sums of money which they had spent in repairing the temple, in carrying on the debsheba or in recovering the immovable properties of schedule ka from persons who were possessing them as trespassers at a time when the defendants obtained their leases from some of the shebaits and which leases were ultimately declared void by this Court. As we have stated above, this Court found that the plaintiff was the sole shebait, that no estoppel operated against him ; that the first lease which was for a term had spent its force ; and that the second, third and fourth leases were void and not binding on the deities.