SHRENIK BHAI KASTURBHAI Vs. GANPAT RAI JAIN

JUDGEMENT

(1.) THESE appeals arise from two cross suits, Title Suit No. 10 of 1967 and Title Suit No. 23 of 1968 on the file of the Subordinate Judge's Court at Giridih. Title Suit No. 10 of 1967 was filed by nine persons said to be the managing trustees of Seth Anandji Kalyani Trust of Ahmadabad, claimed to be a Trust registered under the Bihar Hindu Religious Trusts Act, 1953 and submitting that the said institution is a representative institution of the Swetambar Murti Pujak Jain Community of India. It is also stated in the plaint that the plaintiffs were suing also in their individual capacities representing Swetambar Murti Pujak Jain Community of India. Sanction to sue in terms of Order I, Rule 8 of the Code of Civil Procedure was also sought for. The suit was essentially against six defendants in their individual capacity and also as representing the Digambar Jain Community of India. Defendants 1 to 6 were sought to be sued as representing the Digambar Jain Community of India by invoking Order I, Rule 8 of the Code of Civil Procedure. Reliefs prayed for were, a declaration that the defendants had no right to put up any building or structure of any kind anywhere in or upon the Parasnath Hill as described in the body of the plaint; to restrain the defendants by a permanent injunction from putting up any building or structure anywhere in or upon Parasnath Hill, and from stocking and collecting materials in or upon any part of the Parasnath Hill; for a mandatory injunction directing the defendants to remove the construction which they had put up and to remove the materials used therefor and other incidental reliefs. Defendants 1 to 6 representing the Digambars not only resisted the suit, but also filed a suit of their own, Title Suit No. 23 of 1968 against the said Anandji Kalyanji Trust and its trustees and as representing the Swetambar Murti Pujak Jain Community of India, for a declaration that the agreement relied on by the plaintiffs in Title Suit No. 10 of 1967 was null and void; that it was not binding on the Digambar Community and for other incidental and consequential reliefs. The suits were jointly tried and after trial, the trial Court decreed both the suits in part declaring the right of the plaintiffs in Title Suit No. 10 of 1967, the Anandji Kalyanji Trust, in the Parasnath Hill, inspite of the vesting of the same in the State of Bihar under the Bihar Land Reforms Act and restraining the defendants therein from putting up any construction in the property and directing them to demolish the construction they had putup. The right of the Digambars to worship in the places of worship in the Hill, was recognized, but the declaration sought for by the Digambars regarding the agreement entered into between Anandji Kalyanji Trust and the State of Bihar, was denied finding that the agreement was valid. Though in T.S. No. 10 of 1967 at a subsequent stage, the State of Bihar was also impleaded as defendant No. 7 on an objection being raised by defendants 1 to 6 that the suit was bad for non -joinder of the State of Bihar, no relief was claimed in that suit against the State of Bihar.

(2.) APPEALS were filed in this Court by all the parties. First Appeal Nos. 145 and 146 of 1990 were filed by Anandji Kalyanji Trust and its trustees challenging respectively the decrees in T.S. No. 10 of 1967 and T.S. No. 23 of 1968. The opposite parties, the Digambar, filed F.A. Nos. 54 and 55 of 1990 respectively challenging the decrees in T.S. No. 23 of 1978 and T.S. No. 10 of 1967. The State of Bihar filed First Appeal No. 82 of 1990 challenging the decree in T.S. No. 10 of 1967 granted in favour of Anandji Kalyanji Trust and the plaintiffs therein as representing the Swetambar Murti Pujak Jain Community. These appeals were heard together by a learned single Judge. The learned single Judge allowed the appeals filed by the defendants in Title Suit No. 10 of 1967 and dismissed that suit filed by Anandji Kalyanji Trust. The learned single Judge also decreed in part Title Suit No. 23 of 1968 filed by the Digambar Jains and declared that the agreement entered into between Anandji Kalyanji Trust and the Government of Bihar on 5.2.1965, Exhibit 9(a), was null and void. Feeling aggrieved, these appeals are filed; Letters Patent Appeals Nos. 332, to 336 of 1997 by the Trustees of Anandji Kalyanji Trust and Letters Patent Appeal No. 346 of 1997 by the plaintiffs in Title Suit No. 23 of 1968 representing the Digambaris. These appeals have a chequered history. They were originally heard in the Ranchi Bench of the Patna High Court by a Division Bench as per the dispensation of the business in this Court. The Division Bench posted the appeals for judgment to a particular date. On that day, when the Presiding Judge who had written the judgment, pronounced and signed the judgment, the second Judge on the Bench, declined to sign it. He did not pronounce a judgment of his own, if he was in disagreement with the view taken by the other Judge. This unprecedented conduct on the part of one of the Judges in not either signing the judgment in agreement or delivering a judgment of his own if he was dissenting from it, prompted the Chief Justice of the Patna High Court to withdraw these appeals from the Ranchi Bench to be heard at Patna and in exercise of his power under Rule 11 of Chapter II of the Patna High Court Rules, the Chief Justice referred the appeals to be heard by a Full Bench. The learned Chief Justice also fixed a quorum for the Full Bench consisting of five Judges. The five Judges constituting the Full Bench heard an application filed on behalf of the appellants praying for the issue of a certified copy of the judgment prepared and delivered by one of the Judges at the Ranchi Bench and also clarified that the appeals would be re -heard, - -as distinct from examining the correctness or otherwise of the view taken by one of the Judges constituting the Division Bench in the Ranchi Bench, - -and the appeals were adjourned to 20.11.2000. Meanwhile, the State of Jharkhand was formed when the Bihar Re -organization Act, 2000 came into force with effect from 15.11.2000. These appeals were then made over to this Court as ordered by the Chief Justice of the Patna High Court. In this Court/the then Chief Justice constituted a Full Bench of three Judges for hearing and disposing of the appeals. It is thus that these appeals have come up before us for hearing.

(3.) WHEN the hearing on merits commenced on 7.7.2004, senior counsel for the appellant in LPA No. 333 of 1997 sought to raise a contention that these appeals could be heard only by a Full Bench of five Judges in view of the constitution of a Full Bench of five Judges by the Chief Justice of the Patna High Court before the reorganization of the State of Bihar. Counsel contended that in terms of Section 34(4) of the Bihar Reorganisation Act, 2000, the order made by the Chief Justice of the Patna High Court must be deemed to be an order passed by the Jharkhand High Court and consequently, the said order was binding on the Chief Justice of the newly created Jharkhand High Court and a Full Bench of three Judges could not be constituted by the Chief Justice. There was no dispute that the Chief Justice of the Jharkhand High Court on receiving these appeals in this Court in the year 2002, had constituted a Full Bench of three Judges, for hearing these appeals. No objection that the appeals had to be heard only by a Full Bench of five Judges was raised until the hearing of the appeals commenced after an earlier abortive attempt to hear these appeals one year back. Even then, considering that it was an objection sought to be raised on the basis of the provision in Section 34(4) of the Bihar Reorganisation Act, we consider that it will be proper to deal with that objection before we charter our future course, either by delivering a judgment on merits or by ordering the constitution of a fresh Full Bench having a quorum of five Judges for a fresh hearing of the appeals.