BEHARI LALL SEN Vs. GOUR CHANDRA BIRUNI

JUDGEMENT

(1.) This is an appeal by the plaintiffs and arises out of a suit for a declaration that the defendants are only bhag tenants and that the decree in the Commutation Case No. 130 of 1921 is not binding against the idol, the plaintiff. It may be mentioned here that the present suit was instituted by one Behari Lal Sen puporting to act as a shebait of the idol Sri Sri Durga as also on behalf of the Plaintiffs Nos. 2 to 12 who allege that they had also the powers of supervision over this endowment. The suit was for recovery of paddy and bhag rent for the year 1328 which they assessed at Rs. 50. The defence was that on the question as to whether money rent or bhag rent was recoverable the decision of the Settlement Officer under Section 40 of the Bengal Tenancy Act is conclusive against the plaintiff. The defence also alleged that with regard to their status as to whether they were bhag tenants or occupancy raiyats there was a previous decision in Suit No. 392 of 1919 which was conclusive between the parties. The Munsif granted a decree in part for the money rent with proportionate costs against Defendants Nos. 1, 2 and 4 and ex-parte against the others. He also held that Plaintiffs Nos. 2 to 12 got no locus standi in the suit, and that, therefore, they were not necessary parties. An appeal was carried to the Court of the District Judge of Bankura who upheld the decision of the First Court and dismissed the appeal.

(2.) In second appeal before us it has been contended that the decision in the commutation proceedings under Section 40 is not binding on the plaintiff landlords because the deity Sri Sri Durga was not a party to the previous commutation proceedings and that the shebait Behari was there in his personal capacity and not as a shebait. It has also been contended before us that the proceedings under Section 40 are without jurisdiction regard being had to the fact that the tenants were not occupancy raiyats within the meaning of Section 40 of the Bengal Tenancy Act.

(3.) With regard to the first point it is true that in the commutation proceedings Behari was not described as a she-bait of the idol. But it appears that Behari appeared but did not set up any interest adverse to that of the idol but defended the commutation proceedings as a shebait for we find in the judgment in the commutation proceedings that one of the grounds taken was that it would be a hardship if the bhag rent were turned into a money-rent it being a debutte rproperty. Both the Courts have found that the idol was effectively represented by Behari in those proceedings and this finding is supported by the remark which we have just quoted from the judgment in those proceedings.