GANGESHWARA NAND GIRI Vs. SOM GIRI

JUDGEMENT

(1.) The facts which have given rise to this appeal may be stated shortly. The original owner of the property in dispute, which will be found detailed at the foot of the plaint, was one Swami Sankaranand Giri of Shankar Ashram Bhemgodah, Hardwar. Shortly before his death in 1925 he made a testamentary disposition, on 13 March 1924, of his property. On his death, his chela, Parnavanand Giri, entered into possession, under that will, of the property as owner. The latter died on 10 March 1932 without leaving any chela. The plain-tiff's case is that he is the gurubhai of Parnavanand Giri and it is on the basis of that allegation that he has laid claim to the property and assets left by the latter. The plaintiff's case further is that the defendants are in unlawful possession of the property, that defendant 2 has been giving out that he is a trustee of the property in dispute in accordance with the will of Swami Sankaranand Giri, that he has a right, according to the terms laid down in it, to nominate a gaddinashin of Parnavanand Giri and that he has, in that capacity, appointed defendant 1, Some Giri, as mahant and gad-dinashin of Parnavanand Giri. It is further alleged by the plaintiff that even if it be granted that the will which Sankaranand Giri had left, gave any authority to the trustees to make any person the owner of the property in dispute and to declare Parnavanand Giri as heir, it was not competent to defendant 2 alone to exercise that power. The case of the plaintiffs therefore, is that the alleged appointment of Some Giri by defendant 2 is without right and, therefore, ineffectual and void. Thus, shortly put, the plaintiff's case is that as a chela of their common guru, Swami Sankaranand Giri, he is entitled to the possession of the gaddi because the line of Parnavanand Giri who was the eldest chela is extinct. His case also is that there is an unjustifiable intermeddling on the part of defendant 2, Swami Shit Dayal Giri, with the property of Sankaranand Giri. Implicit in his plaint is the denial of any trust having been created under the will which was left by Sankaranand Giri. It is part of his case that that being so, defendant 2 had no right to appoint defendant 1 as successor. Defendant 1 is merely a chela of defendant 2 and has no connection with Sankaranand Giri. He is, therefore, not entitled to possession of the property. It may be said that, according to the plaintiff his cause of action arose for the first time on 10 March 1932 when Parnavanand Giri died and later in the mon November, 1936 when the defendants refused to recognise his claim.

(2.) Separate written statements were filed on behalf of defendants 1 and 2. The defence, however, taken in both the written statements is substantially the same. There is in them, in the first place, a denial of the plaintiff's relationship with Swami Sankaranand Giri. It is alleged that the plaintiff is not a disciple of Sankaranand Giri and that his allegation that he is a chela of the latter is absolutely without any foundation. Further it is the case of the defendants that the property of Sankaranand Giri and his gaddi known as Shankar Ashram Bhemgodah, Hardwar, are all trust property, that the property mentioned in the plaint appertains to the gaddi and that defendant 2 is the sole surviving trustee entitled to manage and supervise the property and instal a mahant. The case of defendant 2 further is that it was in exercise of his powers as trustee that he had appointed defendant 1 as mahant. It was further alleged by him that the plaintiff was in charge of a gaushala at Muzaffarnagar, had no connection with Sankaranand Giri and that his claim was, in any way, barred by time. Exactly how defendant 2 came to be a trustee is not explained in either of the written statements, though from the one filed on behalf of defendant 2 it would appear that after the death of Parnavanand Giri at first one Krishnanand Giri who was the second disciple of Sankaranand Giri was installed on the gaddi of Shankar Ashram as mahant. Krishnanand Giri's conduct was of an objectionable nature. He was in collusion with the judgment-debtors of the Ashram and was leading an immoral life. He was, therefore, removed by defendant 2 from the gaddi and the entire management was assumed by him. It is further alleged that some time after his removal Krishnanand Giri appeared on the scene and verified that he had no concern with the math and that he had been removed from the gaddi. Ultimately, defendant 1 was installed on the gaddi as mahant by defendant 2 and the defendants claim that he has all the powers relating to the management of the gaddi aforesaid, subject to the supervision of defendant 2. It was also denied that Parnavanand Giri was the owner of the property in dispute, though it is not expressly stated what interest he acquired under the will of Sankaranand Giri which is accepted as genuine by both.

(3.) The suit was originally instituted on 4 January 1937. After removal of certain defects, it was registered on 10 August 1937. After that it met with a chequered career, It was first decreed in the absence of the defendants on 4 January 1938 to the extent of one-fourth. This ex parte decree, however, was set aside and the suit was restored to its original number. Thereafter, the suit was once again decreed in its entirety under Order 17, Rule 3, Civil P.C., on 13 February 1939. It would appear that the suit was once again restored on condition that the defendants should deposit a sum of Rs. 70 in Court as costs to be paid to the plaintiff. The deposit having been made within the time allowed by the Court, the case was fixed for final hearing for 2 August, 1939. On that date, an adjournment was sought by the plaintiff. It was allowed by the Court on payment of Rs. 50 as costs, subject, however, to the proviso that if any portion of this sum of Rs. 50 remained unpaid till 16 August 1939, the suit would stand dismissed with costs. The order directing the payment of Rs. 50 till 16 August 1939 was not complied with. The plaintiff, however, filed an application against the order of the Court below setting aside the ex parte decree, his point of view being that the Court had erred in setting aside the earlier ex parte decree which had been passed in his favour. It would appear that in connection with that application for revision the plaintiff also applied for stay of proceedings and the stay was granted by this Court on 14 August 1939. Ultimately, however, on 24 October, 1939 the plaintiff's application in revision was dismissed by this Court and the stay order discharged. Thereafter, the case came up for hearing before the Civil Judge's Court on 10 November 1939 and then an application was made by the plaintiff praying that a sum of Rs. 50 out of the sum of Rs. 70 deposited by the defendants to the credit of the plaintiff might be paid to the defendants and that a fresh date might be fixed for the hearing of the suit. Actually an application had been presented by one of the counsel for the defendants on 7 November 1939 praying that a sum of Rs. 50 might be paid to him out of the sum of Rs. 70. It would, therefore, appear that even the defendants were or at least one of them was ready to accept the sum of Rs. 50 after 24 October 1939. On 15 November 1939, however, the defendants took up a different line and they withdrew their former application dated 7 November 1939. Their contention then was that by reason of the earlier order of 2 August, 1939 and by reason of the failure of the plaintiff to deposit the sum of Rs. 50 by 16 August 1939. the suit had automatically abated. It was further contended by them that by reason of the stay order passed by the High Court automatic dismissal must be held to have taken place on 24 October 1939 when the stay order was discharged. This contention of the defendants was accepted by the Court below and on 23 November 1939 it held that the suit stood automatically dismissed with costs on 24 October 1939. Against this order of the learned Civil Judge there was an appeal to this Court in which the main plea taken was that the order of the Court below holding that the suit stood automatically dismissed on 24 October 1939 was not sound. This Court came to the conclusion that the order of the Court below was harsh in its operation. It allowed the appeal, set aside the Judgment and decree and sent back the case to the trial Court with direction to re-admit it to its original number and to dispose of it according to law, the defendants being entitled to take Rs. 60 out of the deposit of Rs. 70 lying to the credit of the plaintiff. The suit was ultimately dismissed by the trial Court. The learned civil Judge held that the plaintiff had proved that he was a chela of Sankaranand Giri but that defendant 2 had all rights of management, including that of putting anyone on the gaddi and removing him in case of noncompliance with the terms of the will and he further held that in exercise of those powers he did appoint Krishnanand Giri as the mahant of the gaddi, and removed him subsequently, that he has now appointed defendant 1 as the mahant and that his nomination as mahant was valid in law. The view of the learned civil Judge was that as Parnavanand Giri was not an absolute owner of the property and that as in this event defendant 2 could appoint any one to succeed to the property left by Sankaranand Giri, it was clear that the plaintiff had no claim to the property in suit.