RONALD DUNCAN CROMARTIE Vs. SREE SREE ISWAR RADHA DAMODAR JIEU THROUGH SHEBAITS GURU BHRITYA CHUCKERBURTTY

JUDGEMENT

(1.) These four appeals arise out of two suits brought on behalf of a certain idol or idols for a declaration that certain leases granted by previous shebaits are not binding on the plaintiffs who are successors to the shebaitship of the said grantors of the lease as also for a declaration that a certain mortgage and sale in execution of the said mortgage is not binding on the succeeding shebaits. It will be necessary to state the cases made in the plaints of the two suits separately as there is a slight difference between them both with regard to the lands in the two suits as also with reference to the facts of the same. The case as stated in the two plaints of suit No. 68 is that Sree Sree Iswar Radha Damodar Chandra Jieu, plaintiff No. 1, is the owner of the entire 16 annas of the zemindari right of the properties mentioned in the schedule, namely, Mouza Damodarpur the boundaries of which are given in the said schedule and that the said Thakur possessed all those properties from before the date of Decennial Settlement through the shebait, one Parikhit Nayek, who is now dead, by exercising the absolute right of ownership. In course of time, so the plaintiffs allege, the shebaitship devolved. On the lines of sons and daughter's sons of the said Parikshit Nayek and according to the said settlement between the shebaits, a 6 annas share of the sheba was allotted to Jageswar Nayek deceased and his heirs and a similar 6 annas share was allotted to Hariprosad Nayek deceased and his heirs and a 4 annas share was allotted to one Radhanath Chakravarty now deceased and in accordance with this arrangement the shebaits have been possessing the properties Plaintiffs and defendants Nos. 5 to 9 in suit No. 08 claimed to be the heirs of the late Radhanath Chakravarty and possessed the properties in suit on behalf of plaintiff No. 1 as shebaits with reference to 4 annas share and defendants Nos. 3 and 4 possess as shebaits in respect of the other 6 annas, by being heirs of Hariprosanna Nayek, deceased. It is said that Khudiram Chakravarty who is the predecessor of the plaintiffs and Sibnarain Chakravarty the predecessor of defendants Nos. 5 to 9 each came into possession of 2 annas share as shebaits in accordance with the settlements entered into between themselves, and the seba puja of the plaintiff was being carried on in the shares mentioned till now. The plaint further alleges that IJaresh Nath Chakravarty deceased who was the former shebait in the line of the plaintiff and defendants Nos. 5 to 9, and Kaliprosanna Nayek deceased, the former shebait in the line of defendants Nos. 2 and 4, jointly by a pottah dated Aswin 15, 1274, and the predecessor of pro forma defendants Nos. 10 to 25 by a pottah, made permanent settlement of 10 annas share of the properties mentioned in the schedule and owned by Sree Sree Iswar Radha Damodar Chandra Jieu, plaintiff No. 1, at an yearly rental of Rs. 900 and the shebaits Nos. 10 to 25 made permanent settlement at a separate jama and made over possession of the said properties to defendant No. 2, the Bengal Coal Company, Limited. It is alleged that the executant of the pottahs had no right or power of making such permanent settlement and neither the debuttar properties nor the plaintiff idol derived any benefit from such settlement. The plaintiffs state further that the said permanent settlements are not binding at all on plaintiff No. 1 and they are fit to be wholly annulled and set aside. It was further alleged in para. No. 4 of the plaint that Khudiram Chakravarty, the predecessor of the plaintiff by a document dated Chaitra 23,1310, mortgaged 2 annas share of the proprietary rights in the properties mentioned in the schedule alleging that he had mortgaged the said share and other properties to defendant No. 8 Messrs. Andrew Yule and Company. Khudiram, it is stated, died on Chaitra 20. 1319 B. S., and since that time it is said that plaintiffs Nos. 2 and 3 and the predecessors of plaintiffs No. 3. 4 to 7 became entitled to the properties in suit as shebaits. On this state of facts it was prayed that a decree might be passed to the effect that defendant No. 2 did not acquire any permanent right in the properties in the suit on the basis of the aforementioned pottah, dated Aswin 12, 1274, B.S. It was further prayed that possession of the properties in suit may be given to not only the plaintiffs but also to pro firma defendants Nos. 3 to 25, on a declaration that defendants Nos. 1 and 2 had no right to possess the properties after the death of Khudiram Chakravarty. An alternative prayer was also made that if pro forma defendants Nos. 3 to 25 be found not to be entitled to get possession of the properties in suit, then an order may be passed directing that the plaintiffs do get possession in respect of their 2 annas share in the properties in suit jointly with the defendants Nos. 1 and 2. There was also a claim for mesne profile. There was an alternative prayer for rent payable in respect of the permanent settlement referred to before, for three years prior to the institution of the suit. The relationship between Parikshit Nayek and other parties to the suit is shown in the genealogical tree which is to be found printed at pages 125 to 127 of the first part of the paper-book.

(2.) We will now refer to the plaint in suit No. 69 of 1925. The plaintiffs in that suit were not only the idol Sree Sree Iswar Radha Damodra Chandra Jieu but also another idol Sree Sree Iswar Gopal Chandra Jieu. That suit is based on the state of facts indicated in para. No. 4 of the plaint in the other suit, namely, that there was an unauthorized mortgage by Khudiram Chakravarty and his heirs in respect of 2 annas share in favour of Messrs. Andrew Yule and Company which eventually resulted in an appeal and which concerns the properties at Damodarpur as well as at Srinathpur. The suit had been brought for a declaration in favour of the two idols that both these properties are debuttar properties and it was beyond the competency of Khudiram to execute mortgage in favour of Messrs. Andrew Yule and Company. It is difficult to understand why the Bengal Coal Company, Limited, was made a party to that suit. These suit. It seems to us, are some what out of the ordinary, for we find cases in the book of a succeeding shebait impeaching alienation by the preceding shebaits. In these two cases the position is some what complicated by the circumstance that some of the successors of the shebaits who granted leases are sjill alive and that a suit has been instituted by the heirs of one of the shebaits who is dead. This, of course, refers to suit No. 68. The successors of some of the grantors are alive who have not joined in the suit. The defence to the suits are substantially the same except with, regard to the plea of limitation which stand on a some what different footing in so far as suit No. 69 is concerned, which will be referred to later. The main defence to the two suits is that the properties are not debuttar properties at all. The plea of limitation has also been taken in both the suits. Evidence was adduced in both the suits in support of the respective contentions of the parties, and after considering the oral and documentary evidence, the Subordinate Judge has come to the conclusion that the debuttar character of the properties has been established and that the suits are not barred by the statute of limitation. The Subordinate Judge has accordingly decreed suit No. 68 in favour of plaintiff No.1 declaring the title of the shebaits to that share of the land, namely, 2 annas share of the land, and directing that they do get khas possession of the land appertaining to that share jointly with pro forma defendants and defendant No.2, the Bengal Coal Company, Limited, and defendant No. 1. Messrs. Andrew Yule and Company. In suit No. 69 the decree of the Subordinate Judge runs as follows: It is ordered and decreed that the suit is decree 1 in part in favour of plaintiff No. 2 Idol Sree Sree Gopal Chandra Jieu as represented by the (shebaits) plaintiffs Nos. 2-7 in respect of their two annas share as such in respect of the plaint lands of Srinathpur Their title to that share of lands is hereby declared and they do get khas possession of the lands appertaining to that share jointly with pro forma defendants. The aforesaid plaintiffs will get costs in proportion to their success from defendants Nos. 1 and 2 and defendants Nos. 1 and 2 to bear their own costs so far as their part of the claim is concerned. Plaintiffs are permitted to withdraw their claim in this suit for mesne profits with liberty to bring fresh suit on the sums cause of action if so advised and not barred in the meantime.

(3.) Against these decrees in the two suits these four appeals have been preferred. Messrs. Andrew Yule and Company have preferred appeal No. 151 against the decree of suit No. 68, and appeal No. 152 against the decree of suit No.69. The Bengal Coal Company, Limited, have preferred appeal No. 153, with reference to suit No, 68 and appeal No. 154 with reference to suit No. 69.