SHERA KHAN Vs. BHURA SHAH

JUDGEMENT

(1.) This is an application in civil revision brought, by one Shera Shah against an order of the learned District Judge of Meerut, dated 26 May 1933. Shera Shah made an application on 19 March 1931 to the District Judge setting out that there was a shrine or dargah of Mastan Shah in Muzaffanagar District and that this shrine was endowed and in 1906 a case No. 1 of 1906. Abdulla Shah and Ors. v. Bunda Shah, was decided in the District Court for the removal of Bunda Shah and for framing a scheme for the management of the shrine. Learned Counsel admits that this application was under Section 92, Civil P.C. The application proceeded that it was decided that Bunda Shah should remain as mutwalli and that the scheme of management should remain as was arranged in 1900, and that there should be a committee of three visitors, the Collector, the Tahsildar and a respectable person of the locality, to manage the shrine. Later the applicant, Shera Shah became the mutwalli. By an order of 3 February 1931, without the information of the applicant, the committee dismissed the applicant from the post of mutwalli and appointed the opposite party Bhura Shah as mutwalli. The application asked that the proceedings of the committee should be set aside and that the applicant should be re-instated as mutwalli and Bhura Shah should be dismissed from the office of mutwalli. The application was directed only against Bhura Shah. The learned Additional District Judge issued notice to Bhura Shah who filed a reply. On 18 July 1931, the Additional District Judge passed an order stating that the committee of visitors had the power of removing the mutwalli for sufficient reasons to be recorded in a formal proceeding and the power of appointing a new mutwalli. He statedl that the record did not show what charges were actually brought against Shera Shah and if he was given any opportunity to meet those charges. He proceeded to state: I will ask the committee to frame these-charges, to give him an opportunity (to meet the charges) and then to reconsider their order of removal, and if after doing this they come to the same conclusion, then it will be for me to see whether the removal of the applicant is justified or not. Let a copy of this be sent to the Board of, visistors through the Collector of Muzaffarnagar.

(2.) In complaiance with this order the committee reconsidered the matter and confirmed their previous order. The matter was again before the learned District Judge and in the order under revision of 26 May 1933, the learned District Judge set out that he can find; no provision under which he can interfere with the decision of the committee, that the learned pleader for the applicant only referred to Act 11 of 1920, and he could find nothing in that Act to justify interference. The application for removal of Bhura Shah and re-appointment of Shera Shah was therefore rejected. In revision it is contended by learned Counsel for applicant that the District Judge failed to exercise jurisdiction vested in him by law and that as the learned Additional District Judge had already exercised jurisdiction in the matter it was no longer open to the District Court to consider the question of jurisdiction. On the question of res judicata learned Counsel referred to two rulings : Ram Kirpal V/s. Rupe Kuari (1884) 6 All. 269 and G.H. Hook. V/s. The Administrator-General of Bengal 1912 P.C. 11. In these rulings; no question similar to the present question arises where a Court purports to exercise jurisdiction and later decides that it has not got jurisdiction. There-was no issue before the Additional District Judge as to whether he had jurisdiction or not. In any case we consider that under Section 115, Civil P.C., it is for the applicant to satisfy us that the District Judge had a jurisdiction which he did not exercise and that no question of res judicata arises in: this case.

(3.) Learned Counsel relied firstly on section 92, Civil P.C., and secondly on the Religious Endowments Act, 20 of 1863. In regard to Section 92, Civil P.C., the argument of learned Counsel was that as the claim had been settled in 1906, under that section in a proper proceeding in which the applicant at the time Abdulla and others had obtained the sanction required by Section 92, Civil P.C., no further sanction under that section was necessary, because the present application is in regard to a scheme which was settled under that section. Learned Counsel referred to various rulings on this point. In Sakharam Daji V/s. Ganu Raghu 1921 Bom. 297, there was a second appeal from an appellate decree of the. District Court upholding a decree of the Subordinate Judge to the effect that he had no jurisdiction to entertain a certain suit. The suit was brought by a hereditary pujari of a temple to establish his right to a certain share in the offering made to the deity which were being appropriated by the Guravas. We do not consider that the judgment is in favour of the applicant. All that can be quoted in his favour is a passage on p. 928, column 1, which states: It has been accepted before us at the Bar that it is open to anyone interested in this fund to apply to the District Court, which framed the scheme, to supplement or modify the same. It is not suggested that a separate suit under S 92 is necessary. Though no liberty to apply is reserved under the scheme, such a reservation can be afterwards implied. An application to the District Court seems to be the obvious and, as I hold, the only remedy open to the parties under the circumstances, to have a direction from that Court as to the offerings laid before the deity.