Judgement

JAGANNADHADAS J. : This is an appeal by the first defendant against the affirming judgment and decree of the High Court of Allahabad dated 22-2-1949, on a certificate granted by the said Court under Article 133(1) (a) of the Constitution. The suit out of which this appeal arises relates to an ancient Thakurdwara in the village of Amaulipur containing a temple of Sri Hanumanji and Sri Thakurji, the entire institution being known as Amaulipur Asthan (hereinafter referred to as "the Asthan").

The Asthan owns large property dedicated to it and specified in Lists A, B, and C of the plaint. The entire income of these properties is spent for the Bhog of the idols and in maintaining a Sada-Bart for Sadhoos and Faqirs. There is a fairly long history of litigation relating to this Asthan since about 1926 which it is necessary to set out for a correct appreciation of the points that arise for decision in the present appeal.

2. One Ganpat Das a previous Mahant of the Asthan died in the year 1920. He was succeeded by Mahant Bharat Das, still alive, who according to the plaintiffs case, became mentally deranged Bharat Das appears to have executed on 11-5-1925, a power of attorney in favour of one Gomati Das.

About a year later, i.e. on 10-7-1926, he executed another document purporting to transfer his Mahantship in favour of the present first defendant-appellant, Vikrama Das. This led to a suit No.27 of 1927 by Gomati Das against the present first defendant for the declarations that (a) the deed of 10-7-1926, is null and void, and (b) he himself was the Mahant of the Asthan validly in possession and occupation of the Asthan and its properties.

The trial court decided that suit in favour of Gomati Das and granted him both the declarations he had asked for. On appeal, the High Court modified the decree to the extent that the declaration in favour of the plaintiff that he was in the position of the Mahant of the Asthan was set aside. But the decree of the trial court was maintained in so-far as it declared that deed of 10-7-1926, to be null and void as against the Asthan.

There was a further appeal by the first defendant, Vikrama Das, to the Privy Council. In view of the fact that the plaintiff failed in the High Court to establish his title as Mahant, the Privy Council held that he was not entitled to get a declaration that the deed of 10-7-1926, was null and void as against the Asthan. The suit was accordingly dismissed in the its entirety. The judgment of the Privy Council was given on 25-10-1935. A copy of the judgment is not on the record in these proceedings but it is to be found reported in Mahant Bikrama Das v. Gomati Das 1935 All W R 1408 (PC) (A).

3. During the pendency of the appeal in the Privy Council, three persons by name Bansi Das, Raghubir Das and Ram Sarup Das applied to the Collector of the District under S. 92 ( read with S. 93) Civil P. C. for permission to file a civil suit in respect of the Asthan for the removal of Mahant Bharat Das. The permission was granted by order of the Collector dated 18-11-1933.

A suit under S. 92 Civil P. C. was accordingly filed on 27-11-1933. This was suit No.90 of 1933 in the Court of the Subordinate Judge, Basti. The plaint therein prayed for a decree (a) for the removal of the then Mahant Bharat Das and for the appointment of his alleged disciple Ram Sarup Das as Mahant, (b) for the appointment of a committee consisting of seven named persons for fulfilling the objects of the waqf, and (c) for the entrustment of the properties of the trust to the said Ram Sarup Das and Committee for management and for preparation of a scheme.

It is necessary to notice that the suit was filed by only two of the three persons to whom sanction had been granted by the Collector, i.e. , Bansi Das and Raghubir Das and that the third, viz., Ram sarup Das whose appointment as Mahant , on removal of the existing incumbent, was prayed for, was not a party to the suit. The sole defendant in the suit was Bharat Das d