JUDGMENT
S.S. Sandhawalia, C.J. and S.B. Sanyal, J.
1. The defendants have preferred this appeal against the concurrent judgments of the two courts below declaring that the Kebala executed by the Shebait on 17-7-1956 is null and void and invalid Consequently the deceased defendant no. 1, the vendor, had not acquired any title and the same is neither binding on the deity nor on the Asthal.
2. The suit land comprising Schedule 1(a) and Schedule 1(b) to the plaint is admittedly an orchard.
3. When the case came up for hearing before a single Judge, Mr. Sudhir Chandra Ghose, Senior Advocate took a preliminary point that in view of Section 4(c) of the Bihar Consolidation of Holdings and Prevention of Fragmentation Act, 1956 (hereinafter referred to as ‘the Act’) the suit and the appeal have abated in consequence of the notification dated 6-9-1975 issued under Section 3 of the Act whereupon the case was referred to a division Bench for an authoritative decision whether the suit in relation to an orchard also abates under the provisions of the Act.
4. It has been necessitated to state the facts out of which the second appeal arises because Mr. S.C. Ghose, learned Counsel appearing for the appellants, has pressed before us the appeal on merit as well. There is an Asthal known as Asthal Sri Rangniwas in Mohalla Mogalpur, Ayodhya, District Faizabad in the State of U.P. One Sri Pramod Ban Bihari Saran Jee, a Virakta Vaishnav of Ramanandi Subsect, founded the said Asthal. One of the branches of the said Asthal is at village Mirzapur, tola Gopalpur, P.S. Dalsingsarai, in the district of Samastipur within this State. The suit orchard is situate at Samastipur. Sri Promod Ban Bihari Saran Jee had three disciples, namely, Ram Bihari Saran, Satrughan Saran and Sukhram Das. Sri Pramod Ban Bihari Saran Jee continued to be the Mahanath of the Asthal till his death some time in 1921 and the Ashthal was ultimately succeeded by Sukhram Das, the original defendant No. 2, who executed the impugned sale deed purported to be for legal necessity. The land comprising Schedule 1(a) was donated by one Kamla Prasad Singh under a Sanad dated the. 13th of Shravan 1293, that is some time in the year 18S6 and Sri Promod Ban Bihari Saran Jee in his turn created a registered trust on the 4th of June, 1893, the said property for the benefit of the deity. Further lands were acquired by Sri Promod Ban Bihari Saran Jee out of the funds of the trust, which is Schedule 1(b) and both were (Sic.) into an orchard. The last Mahanth Sukhram Das, who was original defendant No. 2, sold the entire suit land situate within the State of Bihar by virtue of a registered sale deed dated 17-7-1956 in favour of Awadh Rai, the original defendant No. 1 of course after taking permission from the Bihar Hindu Religious Trust Board to ratify the transfer. One Dhanushhari Singh, brother of the present plaintiff, instituted title Suit No. 120 of 1957 in the court of the Subordinate Judge, Samastipur, for declaring the sale deed as void for various reasons including the lack of legal necessity. The Bihar Hindu Religious Trust Board at a subsequent stage came to be impleaded as a plaintiff to the said suit and it ultimately compromised the suit with the original defendant No. 1 in spite of the objection of Dhanushdhari Singh and the suit was disposed of in terms of compromise overruling the objection of the original plaintiff. Dhanushhari Singh preferred an appeal before this Court and this Court held that the suit was not maintainable in the court of the Subordinate judge as also lack of sanction under Section 48 of the Bihar Hindu Religious Trusts Act, hereinafter referred to as ‘the Bihar Act”. The compromise was held to be unlawful and the same was also set aside. The judgment of this Court is reported in Dhanushdhari Prasad Singh v. Avadh Rai 1967 B.L.J.R. 656.
5. The plaintiff in the instant suit claimed the suit land to be an endowed property. The branch of the Asthal at Samastipur was established with the help of the grandfather of the plaintiff, who used to look after the Puja Path of the deity through a Pujari appointed from time to time. The plaintiff’s grandfather and Sri Pramod Ban Bihari Saran Jee were Guru bhais and the entire family was dedicated to the Asthal. Public also used to participate in the Puja path of the diety. It was contended that Mahanth Sukhram Das had no right to dispose of the trust property for a paltry sum without any legal necessity and the plaintiff being one of the worshippers had every right to question the transfer of the trust property. It was also contended that this property was sold by Mahanth Sukhram Das without previous sanction from the Bihar Hindu Religious Trust, Board hereinafter referred to as ‘the Board’, which offended the provisions of Section 28(1)(j) and Section 4(2) of the Bihar Act.
6. In the suit the Board along with others is one of the defendants. The Board supported the case of the plaintiff. The defendants, on the other hand, contended that the suit as framed is not maintainable at the instance of the plaintiff. The Asthal at Ayodhya is not a public trust but a private trust and similarly the branch of Samastipur. It was further asserted that there is no idol installed at Samastipur and, therefore, neither the plaintiff nor his family members nor the public had any occasion to worship any deity. Mahanth Sukhram Das inherited as a disciple the private property at Samastipur and because of difficulty in managing the said property sold it away for a valuable consideration. The original defendant No. 1 claimed to be bona fide purchaser for value after due enquiry about necessity and benefit of the estate and, therefore, he had acquired a valid title. It was also contended that the brother of the plaintiff having failed to obtain the declaration in the earlier suit, therefore, the present suit has been instituted to put pressure on defendant no. 1, we may part with the same.
7. Apart from raising the preliminary point that the suit and the appeal have abated, Mr. Ghose contended that the suit is barred by res judicata; it is not maintainable at the instance of the plaintiff in its present form in view of the various provisions of the Bihar Act.
8. So far as the preliminary issue raised by Mr. S.C. Ghose is concerned the learned lawyer contends that even assuming the disputed land to be an orchard, that land defined under Section 2(9) of the Act includes horticultural land. Therefore the suit property comes within the definition of ‘land’. He further relies upon Section 4(b) of the Act and contends that the Legislature intended neither a suit to be entertained with respect to any land nor a suit already entertained can proceed after a notification under Section 3 of the Act is issued, since Section 4(1)(b) mandates that no suit or other legal proceeding in respect of any land in such area shall be entertained in any court. He further submits that if the filing of a suit is countenanced to any land under the notified area, all proceedings in respect of declaration of right or interest in any land, whether pending in appeal, reference or revision, shall abate in view of the provisions of Section 4(c) of the Act. The learned lawyer appearing for the plaintiff respondents, on the other hand, submitted that the object of the Act is to provide for consolidation of holdings and prevention of fragmentation. Therefore if a proceeding with respect to consolidation of orchard is not intended by the Act, it cannot be said that the suit with respect of orchard should also abate. Learned Counsel draws our attention to Section 2(3) of the Act which defines ‘consolidation’ meaning re-arrangement of parcels of land comprised in a holding. The Explanation to the said sub-section states that holding shall not include land which was orchard or grove in the agricultural year immediately proceeding the year in which the notification under Section 3 was issued. He also emphasises the words appearing in Section 4(c) which read; ‘declaration of rights or interest in any land lying in the area or for declaration or adjudication of any other right in regard to which proceedings can or ought to be taken under the Act, pending before any court…shall…stand abated”. Since no proceeding with respect to an orchard can or ought to be taken for the consolidation of a holding, the suit and the appeal will not abate.
9. From the object and the scheme of the Act it is manifest that a notification under Section 3 of the Act is to effect consolidation of holdings for the purpose of better cultivation of land in any area and to make a scheme for consolidation of holdings in that area. The definition of the word consolidation is to make a holding more compact. Orchard, however, has been excluded for the purpose of such compactness. Abatement of a suit, appeal or revision is contemplated under Section 4(c) upon the publication of the notification under Sub-section (1) of Section 3. Such proceedings for the correction of records and such suits in respect of declaration of rights or interest in any land lying within the notified area or for declaration or adjudication of any other right in regard to which proceeding can or ought to be taken under this act are to abate. Therefore, the question which immediately crops up is whether a proceeding for consolidation can or ought to be taken with respect to an orchard 1 The proceeding within the object of the Act is consolidation of holdings. Since a holding does not include an orchard, there can therefore, be no consolidation of it. The proceeding under the Act can or ought to be taken to effect consolidation of holdings for the purpose of better cultivation of lands. We are of the opinion that this purpose is not served in relation to an orchard: as such neither the suit nor the appeal abates under Section 4(c) of the Act. The preliminary point of the appellants therefore, fails.
10. There is an additional reason why the suit and appeal will not abate. Both the courts below have found that the defendants have failed to prove the existence of any legal necessity for the sale of the land by Mahanth Sukhram Das. It was, therefore, held that the impugned sale deed was devoid of any legal necessity, void and illegal. Thus there was a composite challenge to the document on the ground of the same being void or voidable. Absence of legal necessity makes the instrument of sale voidable. In that view of the matter, the document in dispute was and has been held to be voidable. The suit and the appeal, therefore, cannot abate (See Sheoratan Chamar v. Ram Murat Singh .
11. On merit, learned Counsel states that the judgment rendered in Title Suit No. 120 of 1957 and the decision of this Court in First Appeal No. 201 of 1960 and Miscellaneous Appeal No. 226 of 1960 in Dhanushdhari Pd. Singh’s case (supra) will operate as res judicata and, therefore, the suit is not maintainable. He contends that the present suit has been filed for the same relief by a person who is the brother of Dhanushdhari Prasad Singh, the plaintiff of the former suit. The present plaintiff is laying claim and litigating under the same title for the same relief with respect to the same property. In support of his point, learned Counsel also lays stress on Explanation 6 to Section 11 of the Code of Civil Procedure which explains as to who is the person said to be litigating under the same title.
12. In order to appreciate the submissions of learned Counsel, we have first to see whether the suit instituted by Dhanushdhari Prasad Singh was heard and finally decided in the former suit and whether any decision was at all rendered on merits of the claim in the former suit and the appeal. Admittedly, in the former suit no decision was rendered on merit but the suit was compromised by the Board which joined as a plaintiff in the suit at a later stage, in spite of the objection of the original plaintiff Dhanushdhari Prasad Singh in the former suit. Therefore, there was no decision on merit. In the appeal preferred by Dhanushdhari before this Court challenging the compromise it was held that the suit was not maintainable in view of the provisions of Section 48 of the Bihar Act for the reasons, that Dhanushdhari had no locus standi to institute the suit and this could only be maintained by a person interested in a religious trust that too with the previous sanction of the Board under Section 48 of Bihar Act. Further such a suit can only be initiated in the court of District Judge and none else. Dhanushdhari, however, instituted the suit without the previous sanction of the Board as required under Section 48 of the Bihar Act and the same was filed in the court of the Subordinate Judge even though the District Judge alone was the authority to entertain such a suit. The High Court further observed that the Subordinate Judge had no jurisdiction to entertain a suit of the present nature and in that view of the matter the suit itself was not maintainable. As the suit was not maintainable the compromise must be held to be unlawful and the order of the court, which had no jurisdiction to entertain the suit, recording the compromise must be set aside. The former suit, therefore, was dismissed for want of jurisdiction and not on merits. In our opinion, therefore, the rule of res judicata will not apply. See Sheodan Singh v. Daryan Kunwar . Two additional reasons given by the courts below to bold the instant suit not hit by the principle of res-judicata are sound and acceptable. In none of the written statements the plea of res-judicata has been raised by the defendants, and secondly, Dhanushdhari Prasad Singh brought the former suit on behalf of Bihar Hindu Religious Trust Board and not on his own behalf or on behalf of the public or the family of the plaintiff. The compromise between the Board and the defendant vendee was permitted because on appearance of the Board as plaintiff the presence of Dhanushdhari was held by this Court to be superficial and it was, therefore, that Dhanushdhari’s objection to the compromise was not entertained in the former suit as would be apparent from paragraph 5 and the judgment of the High Court in F.A. No. 201/60 and M.A. No. 226 of 1960 decided on 13th October, 1966. Therefore, neither the appeal was disposed of on merit nor the said suit could be deemed to be inter partes.
13. From the findings of both the courts below it appears that the principal Math and/or Asthal is situated in the State of U.P. The religious trust which has been held to be a public trust by the courts, below, is situated in the State of U.P. along with the institution itself. Some of the properties of the said principal institution, however, is at Samastipur in the State of Bihar which can only be termed as a subordinate math. The question, therefore, arises whether the Bihar Act can at all apply for adjudication of a dispute with respect to such a trust. An answer to this question will dispose of the second submission of Mr. S.C. Ghose as to the maintainability of the suit at the instance of the present plaintiff.
14. In the case of State of Bihar and Ors. v. Smt. Charusila Dasi A.I.R. 1969 S.C. 1002, while considering a case under the Bihar Act its applicability to public religious trusts, it was held that Section 3 of the Bihar Act makes the Act applicable to all public religious trusts within the meaning of Section 2(1) of the Bihar Act which are situate in the State of Bihar and any part of the property of which is in that State. In other words, both the conditions must be fulfilled before the Act can apply and this is the true meaning of Section 3 of the Bihar Act. The same view was reiterated in the case of Maharaj Kumari Umeshwari Kuer v. State of Bihar Petition No. 405 of 1965 S.C. disposed of on 15-12-1960 by Gajendragadkar J. in these words:
…it is now established that before the Act can apply two conditions must be satisfied, first, that the religious trust or the institution itself must be in Bihar, and second, part of its property must be situated in the State of Bihar. Since the first of these two conditions is not satisfied in the present case the Act cannot apply,
The Supreme Court had occasion to deal with this matter again in Ramswarup v. Motiram A.I.R. 1960 S.C. 422. where the question arose that the bulk of the properties of the trust was situated at Madhya Pradesh and part of its property was situated in Maharashtra State and the trust itself was created within the State of Madhya Pradesh. The court observed that it cannot be the intention that the trust would be governed partly by the Madhya Pradesh Act and partly by the Bombay Act. Such a division of the trust and its administration is not contemplated by either of the two Acts. In the case of Charity Commissioner v. Shrinagari Math . where the Math had properties in more than one State and several branches, the Supreme Court held that in order to determine the situs of the trust, which consists of a Math and a subordinate so called math it is the situs of the principal Math which will determine the applicability of the Act. From the aforesaid authoritative decisions of the highest court of the land it is manifest that the situs of the trust being in U.P. and the principal Math in the said State, merely because some property of the trust is at Samastipur with a Subordinate Math, the Bihar Act can have no application for determination of the questions involved in the instant suit. For the applicability of the Bihar Act two conditions were required to be fulfilled, namely, the institution and/or the religious trust must be within the State of Bihar as also some property of the trust must situate in the State of Bihar. These two conditions are not fulfilled in the instant case; as such Bihar Act creates no impediment in the institution of the present suit in its present form in the court of the Subordinate Judge. In the earlier suit and appeal the case proceeded on the basis that the Bihar Act applied to the proceedings and, therefore, none of the courts in the former suit had occasion to notice the decisions of the highest court on this point while holding that the subordinate Judge had no jurisdiction to entertain the suit as also invoking Section 48 of the Bihar Act. We are, therefore, of the opinion that the suit in its present form is maintainable in the court of subordinate Judge and Section 48 of the Bihar Act has no application as the principal math is admittedly situated in the State of U. P. with some properties of the principal Math in this State.
15. Connected with this submission, Mr. Ghose contended that the plaintiff had no locus standi to institute the suit assailing the act of Mahanth Sukhram Das, who was the ruling Mahanth at the time the sale was executed. This submissions of learned Counsel is also devoid of substance. The courts below have found that the plaintiff and his family were worshippers of the Mathia at Samastipur and grandfather of the plaintiff used to look after the Puja Path and other ancillary functions in relation thereto. It is now well settled that when an alienation has been effected by the Shebait acting adversely to the interest of the idol, even a worshipper can file a suit, the reason being that the idol is in the position of a minor and when the person representing it leaves it in a lurch, a person interested in the worship of the idol can certainly be clothed with adhoc power of representation to protect its interest See Bishwanath v. Radha Ballabhji .
16. The last submissions of Mr. Ghose was that in the event the court concludes that the alienation must be set aside as being void or voidable, the consideration paid by the purchaser ought to be refunded. This prayer of the appellants cannot also be granted because the consideration was not paid to the plaintiff but to Mahanth Sukhram Das who is now dead. We cannot direct the contesting respondents to refund the said amount, the plaintiffs having not received the said consideration.
17. For all these reasons we find no merit in this appeal which is accordingly dismissed. In the circumstances, however, we make no order as to costs.