JUDGMENT
Uday Sinha, J.
1. This is an appeal by the plaintiffs against a judgment and decree passed by the Additional Subordinate Judge, Jamshedpur dated the 10th April, 1963.
2. The plaintiffs’ suit was for (a) declaration that the disputed properties mentioned in the schedule to the plaint belonged to the deities Ramji Janakiji through their Shebait Ramratan Dasji and (b) for recovery of the suit properties mentioned in Schedule A to the plaint. The plaintiffs’ case was that the suit properties belonged to the deity Ramji Janakiji, plaintiff No. 1 of which plaintiff No. 2 was the Shebait. The properties appertained to a temple at Jugsa-lal in the town of Jamshedpur known as Ramtikari temple. According to the plaintiffs, the deity was consecrated by Ram Kumar Das, who was its Shebait and was managing the properties in suit in that capacity. The properties of the temple were acquired by him from Cha-ran Pradhan. According to them, Ram Kumar Das died in 1934. On his death his Chela Kalyan Das took over the management of the properties as Shebait and performed the religious obligations required of him in respect of the deities. Kalyan Das died in 1944 without nominating anyone as successor Shebait. After his death Ramratan Dass, plaintiff No. 2 “being the nearest collateral” became the Shebait of the Ramtikari temple and continued in possession of the suit properties. According to the plaintiffs, Ramratan Dass happened to be the Shri Mahanth of Papuria Math at Puri and, therefore, he could not manage the day-to-day work personally. He, therefore, deputed his representative Gangaram Dass to perform the Rajbhog, etc. of the deities, and to manage the properties of the Ramtikari temple. Gangaram Das was only a nominee of plaintiff No. 2 and was not a Shebait himself. In 1953 Gangaram Das relieved himself of the obligations of the Ramtikari temple and went away on pilgrimage. Thereafter. the plaintiffs contend, Ramratan Das requested defendant No. 1 Mauni Babu
Kale Kambalwalla Jai Siyaram Dasji to look after the deities, to perform the religious duties and to manage the properties of the temple. As it happened, defendant No. 1 fraudulently became independent of the Papuria Math. It has been alleged that he did not render accounts of the collections and expenses to plaintiff No. 2 and, therefore, a registered notice was sent to him for giving accounts for the properties of the temple. The registered notice having proved ineffective, plaintiff No. 2 deputed Ganpat Rai to defendant No. 1 for the same purpose, but defendant No. 1 did not pay any heed to him. Plaintiff No. 2, therefore, filed Title Suit No. 18 of 1955 for declaration of title of Mahanth Ramratan Dass, plaintiff No. 2, to the properties mentioned in Schedules B, C and D of that plaint (the properties mentioned in the schedules of that suit were the same as the suit properties in the present suit). That suit was dismissed for default on 16-5-1957. An application for restoration of the suit was filed in terms of Order 9, Rule 9 of the C. P. C, but that also was dismissed for default. In regard to Title Suit No. 18 of 1955, the plaintiffs have contended that that suit was ill advised, as plaintiff No. 1 was the real owner of the properties and not plaintiff No. 2 and, therefore, the plaintiffs abandoned that suit. The plaintiffs claimed to be in possession of the properties of Ramti-kari temple and as defendant No. 1 had failed to render accounts, the present suit had to be filed for the reliefs mentioned above. Defendants Nos, 2 and 3 were impleaded in the suit on the averment that they were looking after the temple on behalf of defendant No. 1, who often used to remain away from the temple at Jugsalai.
3. The case of defendant No. 1 is based on more than one plank. The first part of his case is that the Ramtikari temple was a public Hindu Religious Trust, the management of which vested in the Bihar State Board of Religious Trusts. In 1959 the Board recognized Mauni Baba, defendant No. 1 as trustee of the endowment. Thus the defendant was in possession of the properties of the temple on the authority of the Bihar State Board of Religious Trusts and, therefore, the reliefs prayed for by the plaintiffs could not be granted, in the absence of the Board.
The second part of the defendant’s case was that the temple idol toad been in-
stalled and the temple constructed by one Sheo Samal Marwari and not by Ram Kumar Das. A registered deed of Arpannama (Ext. O) was executed by ham on 25-8-1922 wherein it was recited that three years earlier he had constructed a pucca building at Ramtikari and bad installed the deity of Shri Shri Ramjankiji. The deed set out in explicit terms that after the death of Sheo Samal Marwari four trustees were to succeed Sheo Samal Marwari to manage the affairs of the temple. According to the contesting defendant, there never was any Shebait, in the temple. Neither Ram Kumar Dass nor Kalyan Dass was Shebait in respect of the temple and its properties. Gangaram Dass was also only a Pujari of the temple. The defendant stoutly denied being in possession of the temple and its properties as nominee of Papuria Math or of Mahanth Ramratan Dass. That being the position. Ramratan Dass, plaintiff No. 2 had no right to be declared the Shebait of this temple. The contesting defendant has further contended that after the unceremonious departure of Gangaram Das in 1953, the trustees of the temple and the public thrust upon him the obligations of Sewa, Puja, Rajbhog etc. of the deities. The suit of plaintiff No. 2 (Title Suit No. 18 of 1955) having been dismissed for default in 1955, the defendant also pleaded the bar prescribed under Order 9, Rule 9 of the C. P. C.
4. Upon the pleadings, substance of which has been mentioned above, the trial court framed fifteen issues which were as follows :–
“1. Have the plaintiffs got any cause of action for the suit ?
2. Is the suit as framed maintainable ?
3. Is the suit barred by Order 2, Rule 2 and Order 9, Rule 9, C. P. C ?
4. Is the suit barred, by any law of limitation ?
5. Is the suit bad for misjoinder of the defendants Nos. 2 and 3 and non-joinder of the Bihar State Board of Religious Trust?
6. Is the suit bad for want of sanction of the Bihar State Board of Religious Trust under the Bihar Hindu Religious Trust Act, 1950 ?
7. Has the suit been undervalued ? If so, what is its proper valuation ?
8. Is the court-fee paid insufficient ?
9. Was late Ram Kumar Das founder of the Ramtikari Math and Mandir and whether he instated the deities the plaintiff No. 1, in the temple ?
10. Is the defendant No. 1 Chela of late Shri Mahanth Jagannath Das ?
11. Has the defendant No. 1 been appointed as Sebait of the deities the plaintiff No. 1, and the properties of the Ramtikri Mandir and Math including the disputed properties ?
12. Has the plaintiff No. 2 inherited the office of Shebaitship of the deities, the plaintiff No, 2 from late Kalyan Das as his nearest collateral ?
13. Is the plaintiff No. 2 entitled to decree for recovery of Rs. 1,000/- or any other amount on payment of deficit court-fees, if any ?
14. Is the plaintiff No. 2 entitled to decree for recovery of possession of the disputed properties.
15. To what relief, if any, are the plaintiffs entitled in this suit ?
In regard to issue No. 3, the trial court held against the plaintiffs and held that the suit was barred. Issues Nos. 5 and 6 were also decided against the plaintiffs. It was held that the suit was bad for nonjoinder of the Bihar State Board of Religious Trusts as well as for want of sanction by the said Board. In regard to the merits of the case, which were covered by issues Nos. 9 to 12, the findings of the trial court were all against the plaintiffs. The plaintiffs being aggrieved by the judgment and decree of the learned subordinate Judge filed the present appeal which has been pressed with all seriousness which learned counsel for the appellant was capable.
5. Before I proceed to consider the merit of the rival contentions, I wish to observe a striking feature of the case. That is the absence from witness box of Ramratan Dass, plaintiff No. 2 and Gangaram Dass, a nominee of plaintiff
No. 2, Mahanth of Papuria. Both of them were alive when the matter was pending before the trial court but neither did Ramratan Dass examine himself in support of the case set up on his behalf nor was Gangaram Dass, his nominee at Ramtikari temple examined to support the plaintiffs’ case. The evidence leaves no manner of doubt that Gangaram Dass is still alive. The absence of Ramratan Dass and Gangaram Dass casts serious doubt on the credibility of the plaintiffs’ case. Learned counsel for the appellants tried to soft-pedal this circumstance by submitting that it was not necessary for Ramratan Dass to have examined himself since Adhikari Parmanand Das, who
was managing the affairs of Papuria Math
had deposed on behalf of the plaintiffs. It is true that there is no rule of law that the plaintiff must examine himself as a witness in order to establish his case. But a Court of law is entitled to draw an inference adverse to the plaintiff if he does not have the courage to depose what he has claimed to prove facts mentioned, in the plaint. A Court would be fully justified in not accepting the averments in tone plaint unless there is other coercive evidence in support of it. The only evidence in this case in regard to the origin of Ramtikari temple on behalf of the plaintiffs was that of P. W. 13 Adhikari Parmanand Das. I should have expected Ramratan Das to have examined himself as a witness at least to depose that what was stated in the plaint was true and that whatever the managing officer of Papuria Math, P. W. 13 had deposed was correct and he had his blessings. In the absence of Ramratan Das, the uncorroborated testimony of Adhikari Parmanand Das fails to enthuse confidence. The evidence adduced on behalf of the plaintiffs gives the impression that it is Adhikari Parmanand Dass, who is fighting the litigation for his own benefit. That impression gets stronger when it is seen that the plaint of the title suit of 1955 was verified by Sadashiva Rath, a Manager of Adhikari Parmanand Dass and the plaint in the present suit was verified by Adhikari Parmanand Dass. The involvement of Ramratan Dass, the Mahanth of Papuria in respect of the properties and temple of Ramtikari appears to be wanting in both the suits.
6. The first submission urged on behalf of the plaintiffs-appellants was that the finding of the trial court in regard to installation and consecration of the deities arrived at by the trial court was wrong and unfounded. Learned counsel pressed before us the evidence of P. W. 8 in this connection. He placed reliance upon his evidence in para. 2 where he had stated that Ram Kumar Dass had consecrated the temple in question. According to the witness, he had installed and performed the Pratistha of Ramji Jankiji and he used to look after the idol and the temple. This piece of evidence according to learned counsel for the appellants, showed that Ram Kumar Dass was the Shebait of the deities and the properties of the temple at the time of consecration were his own properties. The evidence of this witness was considered as of no consequence by the trial
court. In my view, the evidence of P. W. 8 cannot lead to the conclusion suggested by learned counsel for the appellants. It only shows that Ram Kumar Dass was present, may be as the chief religious man, at the time of the installation of the deities. This piece of evidence cannot destroy the effect of Ext. O, a registered document, in any manner. Ext. O is a registered document of 1922 executed by Sheo Samal Marwari. It is recited therein that he had constructed three years earlier a pucca building at Ramtikari and had installed the deity of Shri Ram Janakiji and that he was meeting the entire expenses of Seba, Puja etc., the evidence of P. W. 8 may be quite consistent with Sheo Samal Marwari having consecrated the temple and dedicated the temple and placed Ram Kumar Dass as the Pujari or the sole religious person in charge of the temple. The incompetency of the witness to speak in respect of the consecration of the temple is clearly brought out in para. 9 of his evidence where he stated that the Pratistha of the idol had been performed before he had come to Jugsalai and that he could not say who was previously the owner of the land on which the Ashram stood. He also stated that Ram Kumar Dass being a Sadhu having neither income nor money and his expenses and that of the temple were met by the money of the common people. The evidence of this witness in paras. 9 and 11 is sufficient to reject his evidence for the purpose of which he was examined. It is obvious from Exts. O and O/1 that Ram Kumar Das was not the Shebait of Ramtikari temple. The true state of affairs seems to appear clearly from the two registered Arpannamas. In Ext. O it is clearly recited that during the lifetime of Sheo Samal Marwari he alone was to possess the endowed properties. He nominated some trustees named therein to look after the temple and to meet the expenses of the worship of the deities after his death. In Ext. O/1 Saheb Ram Sao clearly stated that Ram Kumar Das alias Mauni Baba was the Paricharak of the temple. Thus by no stretch of imagination could it be contended that Ram Kumar Das was the Shebait of the temple. The case of the plaintiffs that Ram Kumar Das was the Shebait was rightly rejected by the trial court. The genuineness of Exts. O and O/1 cannot be doubted for a moment since they were executed in 3922 and 1931 respectively when they had no reason to make false
or wrong statements specially when they were making dedication of their own properties. Therefore, in complete agreement with the findings of the trial court arrived at in para. 33 I hold that Ram Kumar Dass was not the founder of the Ramtikari Mandir nor he installed the deities. Sheo Samal Marwari must be held to be the founder of the temple. Ram Kumar Dass cannot be said to be higher than a Paricharak. He was not the Shebait.
7. Learned counsel for the appellants
did not make any effort to support their case on the basis of the ex parte decree in Title Suit No. 18 of 1955. That suit clearly indicates the sordid attempt of Kalyan Dass to convert the temple properties as his own private properties. The suit not having been filed against the defendants in representative capacity, the decree obviously cannot bind the present defendants. The claim of the plaintiffs that the suit properties had been acquired by Ram Kumar Dass from Charan Pradhan has no legs to stand upon. There is complete want of documentary evidence in this behalf. It has not been established by any documentary evidence that the suit lands ever belonged to Charan Pradhan at all. The assertion of P. W. 13, the real plaintiff in the suit, in this behalf has only to be stated to be rejected. The evidence of defendant’s witnesses Ramautar Upadhaya (D. W. 4), Mahabir Singh (D. W. 5) and Kamla Kant Mishra (D. W. 6) give a long hand in establishing that the Ramtikari temple and Math had been established and started by the members of the public and not by private individuals like Ram Kumar Dass, Kalyan Dass or Gangaram Dass.
8. In regard to the finding on issue No. 10, learned counsel for the appellants did not accept it as correct. Having heard learned counsel for the appellants and having perused the evidence on the point, I am in complete agreement with the finding of the trial court. The evidence of D. W. 2 Ramdeyal Das, D. W. 3, Gobardhan Das and D. W. 4 Ram Autar Upadhya fully support the claim of defendant No. 1 that he was Chela of Jagannath Dassji. On the other hand, we have the solitary evidence of P. W. 13 who denied that Jai Siaram Dass alias Mauni Baba was Chela of Jagannath Dassji. The defendant’s witnesses on this point in controversy had no axe of their own to grind. On the
other hand P. W. 13 Adhikari Parma-nand Das was clearly an interested witness. The evidence of the defendant, therefore, far outweighs the evidence on behalf of the plaintiffs. All the same ! must observe that the finding on the issue is not very material for deciding the claim of the plaintiffs. I have already held that there was no Shebait in temple and that trustees were managing it. That being the position, plaintiff No. 2 could have no right or title in the temple and, therefore, it is immaterial whether defendant No. 1 was a Chela of Jagannath Dass or not.
8-A. The case of plaintiff No. 2 that he succeeded on the death of Kalyan Dassji to the Gaddi of Ramtikari temple is clearly unconceivable. It has not been asserted in the plaint that Ramtikari temple is subordinate Math of Papuria Math. The evidence of P. W. 13 in para. 95 is to the effect that Ram Kumar Dassji and Kalyan Dassji were independent proprietors of Ramtikari temple and so neither they ever gave any account of income and expenses nor any account was ever demanded from them on behalf of Puri Papuria Math. This clearly shows that Ramtikari temple was not subordinate to Papuria Math.
9. Learned counsel for the appellants argued with all the force at his command that plaintiff No. 2 had inherited the office of Shebait of Ramtikari temple, after the death of Kalyan Das. This claim, however, has not been substantiated on any rule of law or usage. It is well established that in order to succeed to the office of Shebait the rule of succession existing in any monastic order amongst Hindus must be clearly pleaded and established. The rule of succession applicable to ordinary Hindus of the mundane world does not apply to She-baits. Among them there are various modes of succession. Sometimes it is by nomination by the previous Shebait. At others it devolves by selection amongst the Chelas of the previous Shebait. Thus it is essential that a plaintiff in order to succeed in his case of being a Shebait must specifically plead the order of succession on the basis of which he claims to be the Shebait. Unfortunately, the plaint filed in the case suffers from a serious lacuna in this behalf. The observations of the Privy Council in (Baba) Jwala Das v. Pir Sant Das (AIR 1930 PC 245), quoted below are useful (at p. 246):
“It is admitted by counsel for the respondents that under these circumstances the burden was upon them to establish the right they claimed, and their Lordships have no doubt that this is so.”
In Mohani Satnam Singh v. Bawan Bhagwan Singh (AIR 1938 PC 216) it was observed that there can be no doubt that succession to the office of Mahant, and the ownership of the Math property, is to be regulated by the custom of a particular Math and the plaintiff in a suit is bound to allege and prove what the custom of the particular Math was and that his acquisition of the Mahantship was in accordance with such custom. Testing the plaint in the present case by standard laid down in the two Privy Council cases, the submission of the plaintiffs fails far short of the requirement. All that has been stated in the plaint is that plaintiff No. 2 being the nearest collateral of Kalyan Dass became the Shebait. From this cryptic statement learned counsel for the appellants tried to spin out that the rule of succession applicable to Ramtikari temple was that on the death of a Shebait the nearest collateral succeeded to the previous Shebait. I regret the argument, though ingenious, cannot be spun out from the contents of the plaint. The statement in the plaint of plaintiff No. 2 being the nearest collateral became the Shebait is a statement of fact and not the statement or the case in regard to rule of succession. Plaintiff No. 2 did not consider it necessary or appropriate for reasons best known to him to examine himself as a witness in the case. The only witness to support his case was the Adhikari Parmanand Das of Papuria Math, who was examined as P. W. 13 in the suit. According to P. W. 13, who represents plaintiff No. 2, the case as propounded by learned counsel for the plaintiffs from the contents of para. 4 of the plaint has been given a go-by. According to the witness, the claim of plaintiff No. 2 was based upon the rule that if the Mahant of a temple died without any Chela, then the Puri Papuria Math being the superior Math was entitled to nominate its own Shebait. This case is entirely different from that claimed in para. 4 of the plaint. It was essential for the plaintiffs to plead that Kalyan Das died without any Chela and that Ramtikari Math was a subordinate Math of Papuria Math. Not having done so, the plaintiffs cannot be permitted to build up a new case in evidence. In that view of the matter, it has to be held that the plaintiffs have failed to show by any rule of law, custom or usage that plaintiff No. 2 was entitled to succeed Kalyan Dass as Shebait of Ramtikari temple. Even if the rule of collateral Chela succeeding on the death of a Mahanth were to be accepted for a moment, on the sole testimony of P. W. 13, the defendant No. 1 would rank in the same status as Ram Kumar Das or Ram-rattan Das. In that view of the matter, on the death of Kalyan Das, assuming him to be a Shebait of Ramtikari temple, plaintiff No. 2 and defendant No. 1 would be entitled in equal measure to succeed to the office of Shebait as they were both Chelas of Jagannath Dassji. This view of mine is obviously based upon the assumption, which I have held earlier to be a valid assumption, that defendant No. 1 was senior Chela of Jagannath Dassji Ramratan Dass, plaintiff No. 2 could have no superior right over defendant No. 1 and, therefore, he could not seek recovery of the office of Shebait or properties of Ramtikari temple in preference to defendant No. 1.
10. There are other obstacles in the way of plaintiff No. 2 in establishing his claim. Even if it were to be accepted that Kalyan Dass being Chela of Ram Kumar Dass became Shebait of Ramtikari temple, I have failed to appreciate how Ramratan Dass could have succeeded to Kalyan Dass since he was Guru Bhai of Kalyan Bass’s Guru. It has not been alleged that Kalyan Dass had no Chela nor has any evidence to that effect been led on behalf of the plaintiffs. It is true that defendant No. 1 has not claimed to have prescribed to the office of Shebait of Ramtikari temple since his existence in the temple. On his own showing his existence in the temple dates back to 1953, only eight years prior to the institution of the suit, but the plaintiffs have to succeed upon their own case and not on infirmity of defendant’s case, as was held in Greedharee Doss v. Nundokishore Doss Mohunt, ((1866-67) 11 Moo Ind App 405). Whatever may be the deficiency in the claim or evidence of defendant No. 1, plaintiffs must succeed on their own case. There is no controversy between the parties that since 1953 defendant No. 1 was incharge of the temple and was looking after the properties of the temple.
Learned counsel for the appellants strongly relied upon Exts. 1 series to
show that Mahanth Ramratan Dass, Plaintiff No. 2 was the Shebait of Ramtikari temple as well. Exts. 1 series are rent receipts granted to different tenante having shops or residence on temple lands. The printed headings on the rent receipts bear the inscription “Sri Ram Janki through Mahanth Ram Ratan Dass (Papuria Math Puri), Jugsalai Tatanagar”. These rent receipts are for the years 52 to 54. Some of them bear the initials of defendant No. 1 Mauni Baba Jai Siya Ram Das as the landlord. It was, therefore, contended that the contents of the receipts conclusively show that defendant No. 1 had accepted plaintiff No. 2 the Shebait of Ramtikari temple. I regret, I am unable to accede to the submission on behalf of the appellants. The tenants were there on the land from before. Too much importance cannot be attached to the existence of the name of Ramratan Dass on the printed rent receipts. The printed book must have been there in the temple from before defendant No. 1 assumed charge of the temple. The defendant not being interested in the Math properties for personal aggrandisement, there is no surprise if he granted to tenants printed rent receipts which were available in the Math from before. Learned counsel for the appellants also placed reliance upon the fact that the name of Ramratan Dass had been entered in the records of Jugsalai Notified Area Committee which according to Mr. Roy shows that Ramtikari Math was a branch of Papuria Math and that Ramratan Dass was the Shebait of Ramtikari temple. No such inference is possible for the simple reason that the order for recording the name of Ramratan Dass in the record of Jugsalai Notified Area Committee was passed in dubious circumstances.
11. Thus upon an analysis of the evidence — oral and documentary in the case — I am of the view that Ramratan Dass was not the Shebait of Ramtikari temple. Undoubtedly, there are documents to show that he was associated with the temple. But his mere association with the temple will not convert his association into that of the office of Shebait. The case of the plaintiffs, therefore, to recover the temple properties from defendant No. 1 must fail. His (plaintiff No. 2’s) claim is thus rejected.
12. The objection in regard to nonjoinder of the Bihar State Board of Religious Trusts is also substantial. There is no manner of doubt that Ramtikari temple is a public trust. It was created by Sheo Samal Marwari by a registered document. It inducted no family members to be trustees of the temple and the properties thereof, after his death. The conclusion is, therefore, obvious that the temple was thrown open to the public. The public character of the trust was further reinforced by another stranger Saheb Ram Sao dedicating properties to the same temple by Ext. O/1 which describes Ram Kumar Dass as only a Paricharak (priest) of the temple. These two documents clearly show that the public were as of right entitled to visit the temple, make offerings and perform Pujas. P. W. 6 stated in paragraph 4 of his evidence that the public of Jugsalai used to worship and offer cash etc. in the temple and with that amount the expenses of Ramtikari Math and temple were met. Again P. W. 8 in paragraph 11 deposed that the expenses of the temple were met by money of the common public. P. W. 13 also stated in paragraph 71 that Sheo Samal Marwari and Saheb Ram Sao had given the house and land, to Ram Janki for the purpose that their income could be spent over their Raj Bhog and over the feeding of Sadhus. Clearly, therefore, the deities could not be described as family idols. The trust, therefore, cannot be held to be a private trust. The plaintiffs did not contend for a moment that it was a private trust with a family idol so as to take the temple out of the purview of the Bihar State Board of Religious Trusts. It was for the plaintiffs to assert and establish if that was their case that Ramtikari temple represented a private trust. Up till now no Mahant or Shebait either of Ramtikari or of Papuria has claimed or asserted before the State Board of Religious Trusts that it was a private trust. It is now too late, in the day for learned counsel for the appellants to contend that it was not a public temple and, therefore, the non-joinder of the State Board of Religious Trusts cannot be fatal to the suit. I am of the view, in agreement with the trial court, that the non-joinder of the State Board of Religious Trusts is a serious infirmity in the frame of the suit. The contesting defendant No. 1 is in possession of the temple and the temple properties by virtue of authorisation from the Bihar State Board of Religious Trusts. Whatever may be
the legal status of the plaintiffs prior to
the temple having been taken over by the Bihar Stele Board of Religious Trusts, the position of defendant No. 1 now cannot be held to be unsupported by any legal foundation. That being the position, the State Board of Religious Trusts was a necessary party to the suit. In the absence of the Board no relief can be granted to the plaintiffs. In that view of the matter, the suit was rightly dismissed for non-joinder of the Bihar State Board of Religious Trusts, besides other reasons.
13. There is another killer to the plaintiffs case and that is the dismissal of the previous suit filed by plaintiff No. 2 in 1955. The plaint of the previous suit is Ext. F in the present suit. Plaintiff No. 2 wes plaintiff in that suit. Defendant No. 1 in the present suit was also defendant No. ] in that suit The properties in the two suits were identical. The prayers as well in the two suits were identical. Learned counsel for the appellants contended that the suit could not be barred in terms of Order 9, Rule 9 of the C P. C. Since the order-sheet of the suit of 1955 has not been filed in this case, he contended that in the absence of the order sheet of that case, it is not possible to predicate in what circumstances the suit was dismissed. According to the plaintiffs, the suit was not dismissed but was abandoned. Mr. Roy also contended that in the absence of the order sheet, it is not possible to predicate whether 16-5-1957 was a date fixed for hearing in that suit. This submission as to whether 16-5-1957 was a date fixed for hearing in the suit is a relevant matter for applying the bar of Order 9, Rule 9 of the C. P. C., but the order sheet of that case is not the only material upon which a conclusion can be arrived at. The plaintiff (plaintiff No. 2 in the present suit) had filed the application under Order 9, Rule 9 of the Code of Civil Procedure in that suit. Para 5 in that application recites that “the aforesaid case was fixed for hearing on 16-5-1957”. Thus there is unimpeachable material on the record provided by plaintiff No. 2 to show that 16-5-1957 was a date fixed for hearing in Title Suit No. 18 of 1955. The plaintiffs did not lake any step and remained absent and, therefore, the suit was dismissed for default. It is an admitted fact that an application was filed for restoration of that suit. That also was dismissed for default. That being the position, the bar
in Order 9, Rule 9 of the C, P. C. precluding filing of a fresh suit, i.e. the present suit, must fully apply to the present suit, The cause of action was substantially the same in both the suits. Although plain-till No. 2 in the previous suit claimed the properties on his own behalf, it makes little difference. That is only 9 finesse of drafting that the present suit has been instituted by the deity and plaintiff No. 2 as the Shebait of the deity. But the matters substantially in controversy in the two suits and the points in issue also are the same, in that view of the ‘matter, the present suit must be held to be barred by Order 9, Rule 9 of the C. P. C.
14. Before parting with the judgment it is essential to observe that the plaint was subscribed and verified by Adhikari Parmanand Das {P. W. 13), The real plaintiff seems to be P. W. 13 himself and not Ramratan Das, plaintiff No. 2. The deposition of Ramratan Das in September 1962 in Title Suits Nos. 6 and 7 of 1960 on commission was filed as Ext. K in the present suit. His evidence clearly shows that plaintiff No. 2 is not concerned with any litigation. I have no manner of doubt that Adhikari Parmanand Das is responsible for all the litigations. He entered into an unholy alliance with B. N. Mishra, Vice-Chairman of the Jugsalai Notified Area Committee. The unholiness is obvious from the fact that while in 1945, the application filed by Kalyan Das for mutation of his name in the records of the Notified Area Committee was rejected, in 1946 the application on behalf of Ramratan Dass for mutation of his name was allowed. The rationale for the orders passed on 20-4-1946 is obvious from a look at Ext. 15 which shows that 13 Kathas of the temple land was gifted to the Jugsalai Notified Area Committee for starting a Girls School. Howsoever laudable the object of starting a Girls School may be. there can be no manner of doubt that the mutation of the name of Mahanth Ramratan Dass in the records of Jugsalai Notified Area Committee was done on account of the fact that 13 Kathas of the temple land was gifted to the Jugsalai Notified Area Committee for starting a Girls School. Further in 1959 again land belonging to the temple was given on lease to Jugsalai Notified Area Committee. The nature and character of P. W. 13 is explicit from his evidence at paras 77 and 81 where he de-
posed that he had sold some of the lands donated by Saheb Ram Sao to Harnarain Parikh in 1959 for Rs. 14,000. The proceeds of that sale were neither sent to Papuria Math nor it has deposited in the accounts of Ramtikari temple. The explanation given for it was that he had kept it for financing litigations. The evidence shows that there was no litigation pending at that time On the other hand the dedication of defendant No. 1 (D. W. 7) to the cause of Ramji Jankiji, the deity is complete which is evident from his evidence in paragraph 41, quoted below:–
“All the properties of Ram Tekani temple and math belong to Shree Ramji Jankiji and nobody has got any right thereto, I do not claim any right, title whatsoever in that property. I am there to do Seva to Shree Ramji Jankiji and to look after their properties and for the service of S-adhu Sant and public. Ram Kumar Das, Kalyan Das, Ganga Das, Ram Ratan Das or anybody else or any Sadhu has got no right or title therto and neither(?) they can sell any portion of them nor can give any portion of the property to anybody.”
After having gone through the evidence of D. W. 7, I em left with the impression that the Bihar State Board of Religious Trusts was fully justified in recognizing defendant No. 1 as Mahanth of the Ramtikari temple. In that view of the matter, the case of the plaintiffs based substantially upon the evidence of P. W. 13 must fail on all counts.
15. For the reasons stated above, I am in complete agreement with the findings of the trial court. The appeal is devoid of any merit. It is, therefore, dismissed with costs. The judgment and decree of the trial court are hereby affirmed.
R. P. Sinha, J.
1. I agree.