Judgement

SUBBA RAO, CJI. : This appeal by certificate is preferred against the decree of the High Court of Judicaticature at Allahabad decreeing the suit filed by the respondents for possession of the plaint-schedule property.

2. Shri Thakur Radhaballabhji, the deity, represented by Yasodanandan as next friend, filed O. S. No. 61 of 1946 in the Court of the 2nd Civil Judge, Kanpur, against the appellants for a declaration that the deity was the proprietor of house No. 49/54 situate in Ban Bazar in the City of Kanpur, for possession thereof and for mesne profits. The case of the plaintiff (1st respondent herein) was that Lala Jagan Prasad, the 2nd defendant to the suit, was the manager and Sarvarakar of the deity, that the said manager executed a sale-deed, dated January 13, 1942, conveying the said property to one Lala Behari Lal, the 1st defendant to the suit, for a consideration of Rs. 10,000 and that the sale, not being for necessity or for the benefit of the idol, was not binding on the deity. It was further alleged that, as the 2nd defendant had taken no steps to recover the property, in order to safeguard the rights of the idol the suit was filed through Jagan Prasad, who was one of the devotees and worshipper of the deity and who had been taking keen interest in the management of the temple where the deity is installed. To that suit the alienee was made the 1st defendant and the manager, the 2nd defendant.

3. The 1st defendant set up the case that the suit property did not constitute the property of the idol but was the property of the 2nd defendant purchased by him out of his own funds. He further alleged that the suit house was in a dilapidated condition, that its rebuilding would involve the idol in heavy and unprofitable expenditure, that, therefore, the second defendant as its manager, acting as a prudent man, sold the same for a good price to the 1st defendant and that, as the sale transaction was for the benefit of the idol, it would be binding on the plaintiff. He also questioned the right of Yasodanandan to represent the idol and to bring the suit on its behalf. Roth the learned 2nd Civil Judge, Kanpur , in the first instance, and, on appeal, the High Court concurrently held that the sale was not for the benefit of the deity and that the consideration was not adequate. They also held that in the circumstances of the case the idol had the right to file the suit represented by Yasodanandan who was a worshipper of the deity and was helping the second defendant in the management of the temple. In the result the trial Court gave a decree for possession and for recovery of Rs. 1,400 as past mesne profits against the 1st defendant on condition that the plaintiff returned a sum of Rs. 10,000 to the 1st defendant within two months from the date of the decree and also that the plaintiff would be entitled to future mesne profits at Rs. 45 per month till the date of delivery of possession of the property. The High Court confirmed the same. Hence the present appeal.

4. Mr. M. S. Gupta, learned counsel for the appellant, canvassed the correctness of the findings of both the Courts on the questions of fact as well as of law. On the questions of fact, namely, whether the impugned transaction was binding on the idol and was supported by consideration, we do not think we would be justified to permit the appellant to question their correctness, because the said findings are concurrent and are based upon appreciation of the relevant evidence. We accept the said findings.

5. The only outstanding question, therefore, is whether the suit is maintainable by the idol represented by Yasodanandan, who is a worshipper as well as a person who had been assisting the 2nd defendant in the management of the temple.

6. Two obstacles are raised against the maintainability of the suit, namely, (1) S. 92 of the Code of Civil Procedure is a bar to the maintainability of the suit, and (2) a suit for possession of the property of the idol, after setting a