KISAN BHAGWAN MARATHE Vs. SHREE MAROTI SAUNSTHAN, MOHORI

JUDGEMENT

(1.) THIS revision arises out of three suits for possession of three fields, one suit for each field. These suits were consolidated in the first Court. The fields belonged to one Shivaji. He died in 1931 leaving his nephew Udebhan as his heir. In 1932 Udebhan gifted the property in dispute to a temple, or more properly, to the idol, Shree Maroti Sansthan Mohori. The suit is for possession but it has not been filed by the wahiwatdar of the idol. Instead, two persons who describe themselves as plaintiffs 2 and 3 in the plaint, purport to sue: On behalf of the plaintiff 1 Sansthan, the trustees, wahiwatdars and the Hindu community of the village Mohori; and they sought the permission of the Court to sue in a representative capacity under Order 1, Rule 8, Civil P.C. This was permitted, so the defendants seek to revise this order. The contentions of the defendants are first, that if the suit is by the temple then the plaintiffs cannot sue on its behalf, only the wahiwatdar of the temple can sue, and second, if it is a suit by the plaintiffs in their own right then Section 92, Civil P.C. is a bar because the permission of the Advocate-General has not been obtained.

(2.) I think it will be necessary to analyse the claim. The suit is for possession and for nothing else. Now the only "person" entitled to possession is the "temple" or rather the idol, for it is doubtful whether a temple is a legal entity and whether it can sue. See Mulla's Hindu Law 9th Edn. page 480 and Byankat v. Ramchandra A.I.R. 1941 Nag. 317 . The other plaintiffs described in the plaint as plaintiffs 2 and 3 have no right to possession. The title does not reside in them, and as they seek no other relief than the one for possession it is evident that they have no right of suit in their own behalf. Whether they have a right to other reliefs which they have not claimed is not a matter into which I can enter. Such a question can only be debated if and when a suit claiming other reliefs is instituted. The suit before me is for possession and for nothing else. It is true there is the usual prayer for other reliefs but that prayer can only be construed to mean reliefs ancillary to the main claim for possession. (See as to this Abdur Rahim v. Mahomad Barkat Ali A.I.R. 1928 P.C. 16 where these words have been construed with reference to statutes. The same principle of construction applies here). A suit for possession on behalf of A in whom alone the title is said to reside cannot be turned into a suit for other reliefs which are to benefit B C and D in a totally different capacity. The learned Judge of the lower Court remarks that a plaintiff cannot be compelled to claim reliefs which he does not want to claim. But in that case he cannot be given relief which he has not asked for and which do not arise out of the relief for possession in a purely title suit. In the circumstances all I am concerned to see is whether the plaintiffs can sue on behalf of the idol for possession.

(3.) AS regards Section 92, Civil P.C., that section is limited to suits which claim one or other of the reliefs set out in the section. It does not apply to suits against third parties and strangers and certainly not to a suit in which an idol sues for possession of its property or property which it claims: Abdur Rahim v. Mahomad Barkat Ali A.I.R. 1928 P.C. 16 , Kazi Hasan v. Sagun Balkrishna (1900) 24 Bom. 170 , Venkatarama Ayyangar v. Kasturi Ranga Ayyangar A.I.R. 1917 Mad. 112 and Nago Rao v. Gulab Rao (41) 1941 N.L.J. 587 .