Seth Srenikbhai Kasturbhai And … vs Seth Chandulal Kasturchand And … on 1 July, 1997

JUDGMENT

Prasun Kumar Deb, J.

1. The abovementioned First Appeals and (Civil Revisions) are taken up together for disposal as being heard analogously and the parties being the same. F.A. No. 146 of 1990 (R) has been filed by the defendants of Title Suit No. 23 of 1968 whereas F.A. No. 54 of 1990(R) has been filed by the same appellants

who were plaintiffs in Title Suit No. 10 of 1967. Similarly, F.A. No. 55 of 1990(R) has been filed by the defendants of Title Suit No. 10 of 1967 and the same appellants have filed F.A. No. 145 of 1990(R) in which they were plaintiffs in Title Suit No. 23 of 1968. F.A. No. 82 of 1990(R) has been filed by the State of Bihar against Title Suit No. 10 of 1967 in which the State of Bihar was the defendant.

2. Analogous judgment in both the suits being Title Suit Nos. 10 of 1967 and 23 of 1968 have been passed by Shri C. S. Choubey, the then Subordinate Judge I, Giridih on 3-3-1990. The first suit in point of time is Title Suit No. 10 of 1967, which has been filed by the Managing Trustees of Seth Anandji Kalyanji Trust allegedly a representative institution of Swetamber Murtipujak Jain Community of India. The defendants in that suit are Dibambaries, another sect of Jain Community and the State of Bihar, whereas the plaintiffs in Title Suit No. 23 of 1968 and the defendants Nos. 1 to 6 of Title Suit No. 10 of 1967 arc Dibambaries of the Jain Community as mentioned above. The State of Bihar is defendant as defendant No. 7 in Title Suit No. 10 of 1967 whereas defendant No. 1 in Title Suit No. 23 of 1968. The plaintiffs and the defendants besides the State of Bihar in both the suits have sued and being sued in their representative character under the provisions of Order 1, Rule 8 of the Code of Civil Procedure and me points being raised of similar character in both the suits have been tried analogously. In both the suits, Swetambers and Digambcrs have placed their claims and counter-claims regarding their respective rights in the hill of Parasnath alias Summad Shikharji and also in the temple, tonks, shrines, Dhramshala, Rest Houses and other constructions over the same. Admittedly, the hill Parasnath alias Summed Shikhurji is situated within Pirtand Police Station of Giridih district under the State of Bihar.

3. Before narrating the claims and counterclaims made by the two sects of the Jain Communities, it would be desirable to stale a brief history of the hill Parasnath and its religious effects and importance for both the sects of Jain communities are in fighting amongst themselves for the last 100 years or more. On the top hill of Parasnath, there is a principal place of Pilgrimage of Jain religion. Amongst the Jains, there are two

sects having difference in their way of worship about Sewa and Pujan of idols, Sweambers by name signifies are whiteclothed while Digambars as name signifies are unclothed. The division between the two sects is very ancient and coming from time immemorial. It is not known as to when it is separated. It might be before or after Christian era. Broadly speaking their difference is in rituals and worshipping in the following manner.

Swetambers in the early hours of the day wash the sacred images, clothe them and decorate before worship. Such ornamentation and decoration after washing once remain for the whole of the day while Digambars remove all coverings of idols and wash them and offer Pujas to the sacred images and foot prints. All the time when Puja or worship is done, the idols or foot prints arc washed.

4. According to the belief of the Jains, there were twenty four highly adorned personage who were called Thirthankars and these 24 Thirthankars are in many respect as per belief amongst the Jains higher in status than the Gods or some of the Goddesses as believed in Hindu Mythology. Out of these 24 Thirthankars, it is believed by Jains that 20 have attained Nirwan or Salvation in the present cycle of world history overthe hill of Parasnath, as a result of which the whole hill is held in reverance by the Jains. The hill has got natural remarkable features having several peaks, 24 spots apparently marked by natural features and believed to be sacred, out of which 20 spots marked specially are believed to be the place wherefrom 20 Thirthankars had left for heavenly abode and the foot prints marked there are being worshipped. These 20 spots have been set apart from remote antiquity. It is believed by the Jains that rest of four Thirthankars attained salvation in other parts of the Country but in their commemoration, conventional beliefs have been herein the hill itself. There is also a shrine called Gautam Swami and an important temple in one of the highest parts of the mountain called “Jal Mandir” having certain platforms set apart for religious contemplation. There are Dharmshalas or rest houses for pilgrims. According to the belief of Jain Community, a person must visit once this revered Parasnath hill in his lifetime. The history runs thus that Parasnath hill and the village Madhuban were situated within the ambit

of Gaddi Palganj which was settled with the Raja’s predecessors as far back as in the year 1780. In the year 1829, Gaddipalganj was registered by the Collector of the District as belonging to the Rajas of Palganj and Pargana register was also prepared in the name of Raja of Palganj and as such both Madhuban and hill Parasnath were remained as part of Gaddi of Palganj, Zamindar/Raja of Gaddi Palganj was settled with the properties long back and revenue records were prepared so, but as the Jains were considering a part of hill as their pilgrim, dispute arose when Raja of Palganj was exercising his right over shrines even to the exclusion of the Jains. During the British Rule, a Military Sanatorium was proposed to be constructed over the Parasnath hill after taking permission from the Raja which caused annoyance to Swetamber Jains who are the richer class amongst the Jain Communities although Swetamberies and Raja of Palganj were earlier maintaining good relations in respect of upliftmcnt and maintenance of pilgrims but since after the set up of Military Sanatorium, the relationship started worsening and Swetambari Jains started raising objection as the same would hurt their religious sentiments as the site for construction of Sanatorium was fixed within the hill in 1859 when the estate of Raja of Palganj was under the Court of Wards. In January, 1860, Sir Peter Grant, Lt. Governor of Bengal inspected the hill accompanied by some higher officials. In the meeting, Swetambaries were also present and the site was selected on the western range which was devoid of any shrines and was remote from the pilgrims considered by the Jains. The objection raised at the very first instance of the setting up of Military Sanatorium in the hill was given up ultimately and the Sanatorium continued for about four years and then abandoned in the year 1868 for local disadvantages in spite of its beauty and other effectiveness and the main building was made over to P.W.D. and the other parts were sold to Raja.

5. During the next survey, disputes arose between the Raja of Palganj and the adjoining Zamindars of Jharia, Nawagarh and Katras (off shots of Palganj) regarding ownership and possession over the hills of Parasnath. In 1861, Captain Dalton in Survey Appeal declared that Parasnath hill should not be divided and should be included as a single block showing

geographically within Palganj Zamindary.

6. In 1864 a dispute arose between the Raja and the Jains when persons of Raja snatched away certain valuable presents/offerings made at the temple on the hill by a rich Jain female Har Kumar Sethani. The snatching was made by the persons of Raja from servants of Swetamberi who used to collect those presents (Chadhawa). Complaint was lodged by Swetambaris before the Assistant Commissioner of Govindpur, but the same was dismissed as being civil dispute. At this, one Puran Chand Galicha, the then Manager of Swetamberi Kothi, brought a Civil Suit No. 21 of 1864 commonly known as Chadhawa case against the Raja of Palganj. The suit, at the first instance, was dismissed by Mr. West Land, Extra Assistant Commissioner of Barhi in the year 1865, but was decreed in part for the value of Chadhawa admitted to have been received by the Swetambaries by Col. Davis, the then Judicial Commissioner in appeal in the year 1866. The decree granted by the appellate Court was confirmed by the High Court in 1867.

7. Then in April, 1867 Raja brought Title suit No. 12 of 1867 for declaration of his title in the hill, the idols, the temples and the offerings and for confirmation of possession in the Court of Col. Boddom, the then Deputy Commissioner, Hazaribagh, against the Swetamberies. The suit was decreed on 25-6-1968, but the High Court in appeal dismissed the suit without going into the merits only on the preliminary point that there was no cause of action for the suit. There were then series of disputes regarding the hill between the Raja and the Jains both in civil and criminal proceedings, when ultimately for maintaining peace, an Ekrarnama was executed by the Raja of Palganj on one side and Swetamberies on the other side in the year 1872. Swetambars were represented by Harakh Chand Galicha, the then Manager of Swetambaries. By that agreement/ Ekrarnama, it was decided that in lieu of share of offerings made in the different temples at the hill, the Raja of Palganj should be given an annual income at a time by the Swetambaries and regularly the collection would be made by Swetambaries. The respective rights, better said perspective rights and obligations of the parties regarding a portion of the hill where temples and shrines are situated and other areas of the hill were also settled by that agreement. In 1876 the

Raja again brought a suit for accumulated offerings (Chadhawas) as per terms of the agreement and in that suit also, a compromise was arrived at and a second Ekrarnama was executed between the parties in 1876 whereby it was stipulated and settled that annually a sum of Rs. 1500/- was to be paid by the Swetambaries yearly to the Raja in lieu of Chadhawa and offerings of all kinds in the temples and shrines being collected by the Swetambaries. The second Ekrarnama ratified the first one.

8. But before that in 1874, Raja of Palganj leased out certain lands within the hill to one Mr. Peppe for cultivation of trees and one Mr. Boddam, son of the former Deputy Commissioner, Hazaribagh, acquired the rights of Mr. Peppe and then again took a fresh lease from the Raja in 1876 for about 2000 acres of land on the hill for the purpose of tree plantation. After sometime while in possession of about 2000 acres of land, Mr. Boddam opened a pigery in a portion of his leasehold land for preparation and setting up of factory of Lards. One Dhanpat Singh Bahadur and two other leading members of Swetambers institututed a suit being Suit No. 9 of 1889 with a prayer that the Raja of Palganj had no right to settle any land to any other person in view of Ekrarnamas being executed in between Swetambars and Raja of Palganj. Mr. Boddam was also made a party and a prayer for injunction was made against him and Raja for restraint in setting up Lards factory. It was tried by the District Judge of Alipore, Calcutta and it went up to the Judicature of High Court of Fort William at Bengal. In that case, for the first time, Swetambers took a plea that they were settled with the hill of Parasnath by the Farmans from Mughal Emperor Akbar Sah and thereafter from Ahmad Sah and as such they had absolute right over the hill by those farmans but the farmans were rejected by the courts in that case as not being properly proved and the custody of the same from when those had been produced could not be proved beyond doubt. It was held that those documents i.e. Farmans were inadmissible in evidence under the Evidence Act and it was further held by the appellate Court that even it those farmans were there, they did not prove the Swetambaries’ title over the whole area or the lands of Madhuban. It was specifically held both by the District Judge and by the appellate Court

that the hill of Parasnath did never belong to Jains. Thus the prayer for the Swetambaries regarding the eviction of Mr. Boddam from his leasehold lands as having no authority of Raja of Palganj in the grant of such lease was rejected but considering the religious sentiments attached to the peak of the hills, Mr. Boddam was restrained from carrying with his Lards’ factory on his leasehold lands. This case between the Swetamber in one side and Raja of Palganj and Mr. Boddam on other side is known as famous ‘Pigery case’. It was specifically held in that case that the hill belonged to Raja and not Jains, The judgment of appellate Court has been reported in (1894) ILR 21 Cal 180. While stating the facts in that case, it was observed by the appellate Court, when objection was raised from the side of Raja of Palganj that the suit was not maintainable as only a sect of Jains namely Swetambers had come up with the suit leaving aside the other sect Digambars while they had also right over the pilgrims in the hill, to the effect that “it will be observed upon the plaint that, from the point of view of their rights, which they presented to the Court, the Jains of Swetamberi sect would not properly bringing the Digambari Jains into the suit, for they claim this hill as their property and they rely upon Ekrarnamas executed between themselves and the Raja and to which the Digambari sect of Jains were no parlies. No doubt, upon the evidence it does appear that this hill is a place of worship of Digambar Jains as well Digambari Jains are not so similarly interested. They do not claim any title to the hill itself nor the parties to Ekrarnamas of 1872 and 1878 and they would not be bound by any decree which may be made in this case.” Thus the rights and obligations of Digambari Sect of Jain Community remained untouched in the judgment and decree and the Swetambari sect failed to establish their rights, title over the Parasnath Hill.

9. In 1889, the then Raja of Palganj granted a licence to one Harlal Pujari of Jains, Digamberi Kothi, permitting him to erect a flight of steps from Sitanala to Kunthnath. The Swetambari sect destroyed some of the stairs and demolished them which ultimately led to a suit being Suit No. 1 of 1900 wherein Raja of Palganj and Digambars were the plaintiffs while Swetambers were the defendants. This suit was known as Steps case or

Stair-case case. The suit was instituted before the Deputy Commissioner, Hazaribagh and ultimately went up to the High Court of Calcutta. The judgment of the appellate Court has been reported in (1904) ILR 31 Cal 839. In the first instance, the suit was decreed as a whole against Swetamberis including the claims for damages, but in the appellate Court, the claim for damages was dismissed. The other claims were decreed to the effect that the Raja had every right to grant permission or lease to any person whomsoever and the Swetambari sect cannot object to it. It was specifically observed in that suit that Swetambars do not have any right in the soil of the shrines and also of the hills. The soil of the hill and that of the shrines remained to be the proprietory right of Raja and the Ekrarnamas executed between the Raja of Palganj and Swetambers did not in any way infringe the right of the Raja in maintaining and repairing the path to the hill and to the soil of the hill. It was further held that Swetamberi sect cannot deprive Digambari Sect of their right of worship and being of the same community, both have equal right of worship and one sect cannot injure the sentiment of other sect and as such demolition made by the Swetambers were held to be improper and illegal.

10. Then comes the direct confrontation between the two sects which is known as Puja case or the Prathistha case. Digambers brought the Suit No. 5 of 1902 to restrain Swetambers from keeping up of image of Parasnath in place of Charans in the new Parasnath temple. It was stated in the plaint of that suit that whole of Parasnalh hill was a hill sacred to the Jain Community as a whole and was place for pilgrimage and that both the classes of Jains visit there for the purpose of devotion and worship and subject to these rights of Jains, the hill was the property of Raja of Palganj and as such the Swetambers had no right to replace holy Charan. Swetambers took a plea that Digambars had no concern with the temples but in fact the Charans had been removed only to put up again in thier former place and that no image was intended to be placed there. A local enquiry was made by the Subordinate Judge and a report to that effect was placed on record to the effect that there was no replacement of Charans and in view of such report, the suit was ultimately withdrawn.

11. As the time went on, the estate of Palganj came under the operation of encumbered Estate in 1907. Then there was again a proposal for leasing out certain areas in the hill for the purpose of construction of Sanatorium. Both the sects of Jains made memorials to the Government objecting to such proposal for construction of Sanatorim in any portion of the hill which would cause, according to them, loss of sanctity and deprivation of the Jains in their offerings of Pujas and their faith about the whole hill being a religious pilgrimage. On the basis of such objection, the then Lt. Governor of Bengal came to visit the hill in the middle of 1907 and a Durbar was held at Madhuban. The leading persons of both the sects of Jains were also invited on the occasion but they opposed the Government’s proposal in their address, but it was held by the Government that the hill belonged to Zamindars and not to the Jains but some prescriptive rights of worship and other privileges were given to the Jains by the Zamindars and it was further held by the Governor that if Jains want to preserve their sanctity and disallow the Zamindar to lease out any portion of the hill then adequate compensation is to be given by the Jains to the Zamindars. Then hectic attempts were made from the side of the two sects of Jains to buy up the Raja’s interrest over the hill.

12. It appears from the different exhibits placed in the case that offers were first given to Swetambers but when they receded then Digambars made an agreement of lease of the hill with the Palganj estate at the instance of Lt. Governor of Bengal, but as the terms and conditions of the agreement were not implemented then the litigation forthe specific performance of the above agreement was made by Digambars against the Raja of Palganj, but the suit failed as the agreement was found to be not entered between the proper parties. In the meantime at the instance of the Governor, records of rights in respect of the hill and its outskirts were prepared and completed. No lease ultimately could be granted to Digambars under the order of India Government in the year 1910 and practically such denial led to the abovementioned specific performance case being Suit No. 275 of 1913.

13. In the survey record of rights prepared in 1910 Mouza Parasnath hill was recorded in the Zamindary of Palganj. However, aspecial incident

was also recorded that all the Jains could worship in the temple and stay in the Dharamshalas without permission from any one and that all high caste Hindus had a right to enter the temples for the purpose of worship. Subsequently, the entry regarding high caste Hindus for entering into the temples and worship was cancelled when objections were raised by both the sects of Jains but the temples and Dharmshalas were recorded under the management of Jain Swetamber. Digambars raised objection to the effect that the records should be corrected by giving rights to Digambers also along with Swetambers regarding the management of temples and Dharmshalas because they have got equal right to worship in the temple without any interference, but. Swetambers maintained that their permission ought to be taken by Digarnbaries for entry and worship in the temples and that should also be done in a mode approved by them. It was decided by the Settlement Officer that all the Jains had a right to perform Puja and halt in the temples/ Dharmshala without permission or interference by any sects but the temples and Dharamshalas under Khewal No. 7 including an area of 87 decimal was recorded in the name of Maharaja Bahadur, General Manager of Jains Swetamberi Society. There was further recording in the Khatain that the Santhals had a right to hunt on the hill once in a year on the full moon day of Baisakh. For correcting the entries in the record of rights in Khewal No. 7, Swetambers brought a suit in 1911 but the suit failed. Thus the record of rights remained to be recorded in the name of Gaddi Palganj, but in possession and management of Maharaja Bahadur Singh, the then General Manager of Swetambcri Jain Society with unrestricted right of worship on the part of the entire body of Jain community. In the settlement operation when the abovementioned record of rights was published the Swetambers filed T.S. No. 288 of 1912 for declaration that Digambers had no right to worship in the temples and to occupy the Dharmshala without permission of Swetamberi sects of the Jains and a mode not approved by them as these were exclusively belonging to Swetambers. Prayer was also made in the suit for correction of entries in the record of rights of Khewat No. 7 to the effect that Digamberi sect of Jains can worship in the temple of Parasnath hill only with the permission of

Swetamber Jains and in a mode approved by them and can make entry into Dharamshala and rest houses only with their permission.

14. A similar suit was also filed by Digambars against Swetambers being Suit No. 4 of 1914 and in that suit Digambers prayed contrary to that of Swetambers. Both the suits were taken up together and decided by the Additional Subordinate Judge, Hazaribagh. During the course of trial, it was found that there were 31 edifices in dispute of which 5 platforms for purposes of contemplation were admittedly to be exclusively devoted to the Swetambers. In respect of 20 tonks dedicated to the 20 Tirthankers who found Nirwan from the hill and shrines of Gautam Swami were found to be worshipped by both the sects and it was held by the Subordinate Judge that in the 20 tonks and the shrines of Gautam Swami, both sects have equal right of worship but with regard to the remaining 4 tonks and Jal Mandir temples, the Subordinate Judge held that Digambers had no right to worship but they can only do so with permission from Swetambers and as regards slay at Dharmshala and rest houses it was held that those being constructed and belonged to Swetambers, Digambers cannot use them without permission from Swetambers.

15. Appeal and cross appeal were filed by both the sects against the judgment of the Additional Subordinate Judge and the High Court of Judicature at Patna affirmed the judgment of Subordinate Judge. The appeal was preferred before the Privy Council by both the parties and the judgment of the Privy Council is reported in AIR 1926 PC 13. As regards 20 tonks and shrines of Gautam Swami, it was held by the Privy Council in the following manner :–

“No doubt Swetambers being the richer sect have rebuilt or largely improved the present buildings but the ancient building (20 tonks and shrines of Gautam Swami) were already dedicated to the common use of both sections. This contribution to the common religious buildings can create no exclusive right. Upon this short ground, their Lordship think that decision should stand.”

As regards the title over the hill, it was further
observed in the following manner:

“If the title be in the Raja, there is quite sufficient evidene of a grant by him for this

purpose. The only contradicting suggestion was that in some manner, the hill had become vested in the whole Jain religious community or was held by Raja in trust for that purpose. Their Lordship neither affirmed nor dis-affirmed this contention but if it were proved, it would in their opinion effect this case and ultimately, the decision arrived at by the Subordinate Judge had been affirmed and the appeal and cross appeals were dismissed.”

16. It should be mentioned here that specific performance case filed by Digambers against the Raja of Palganj also went up to the Privy Council and the same has been reported in AIR 1924 PC 156 (159) and the suit was dismissed in the original Court and the dismissal was maintained by the Privy Council also.

17. The Swetambers then purchased from Raja of Palganj the rights of the hill whatever he had in the year 1918 and also they acquired in the same year a permanent lease from the Raja of Nawagarh which had claimed moiety interest in the Hill. Digambers filed Suit No. 201 of 1920 being accompanied by Raja for declaration that the sale deed made in favour of Swetambers by the Subordinate Judge of Court of Wards in 1880 is void and not being executed by a competent person. The suit was dismissed by the Subordinate Judge, Hazaribagh. Patna High Court also dismissed the same and the same dismissal was maintained in the Privy Council which is reported in AIR 1933 PC 176. Then Digambers came up with Suit No. 256 of 1920 best known as injunction case. This case also went up to Privy Council reported in AIR 1933 PC 193. The Digambers made an attempt in the suit for putting some restrictions on Swetambers. It was asserted by Digambers that the entire hill and every stone of the hill was held to be sacred by the whole Jain community and this was an object of adoration and worship for both sects and for its special sanctity no building for human habitation can be permitted over the hill. Digambers also challenged the right of Swetambers of posting Santries and Night Watchman on the top of the hill, building and hutments etc. for Punjaris and other temples’ servants in the daily employment on the hill. The Digambers also challenged the erection of a gate by Swetambers at the top of the winding pilgrim way as according to them such gate was erectede only with the motive of obstructing the

Digamber’s access on the hill. The Subordinate Judge at Ranchi where the case was transferred from Hazaribagh held that the hill was endowed to debutter property of the Jains’ deities thereon and the whole of the Jains including both the sects were entitled to sec that their most sacred tirth were properly maintained and not desecrated or defied and as such the injunction was granted restraining Swetambers from posting Santries and night watchman on the hill of the building of the proposed dwellings and Dharmshalas and also from erecting the gates as it was held by the Sub Judge that the bildings for habitation in Debutter property would create disecretion of the sanctity to the hill and that the gale wouold be intended to obstruct the Digambers in access to the hill.

18. The Subordinate Judge while decreeing the suit passed restraint order that Swctamber sect of Jains have no right (i) to construct houses on the top and slopes of the disputed Hill, Samed Sikher, for residential purposes other than for worship;

(ii) to station men on any part of the said hill day and night whether as Santries or otherwise;

(iii) to construct gates or any other structures on the pilgrim road leading to the hill so as to interfere in any way with the free access of Digambari pilgrims, their Pujaries and guards or any member of the Digambari sect to the 21 tonks as mentioned in Ext. W/1 of the decree in Puja case No. 288 of 1912 and the charans therein or to any part of the said hill for the purpose of worship, excepting the Jalmandir, other tonks and structures as not excluded by that decree;

(iv) to remove the said tonks existing charans of any other type and it be further declared that the Digambari Jains equally with the Swetambari Jains have the right to use any of the roads on the hill leading to the said tonks and also permanent injunction was issued restraining the Swetambers as mentioned above and also from interfering in any way.

19. In appeal, the High Court of Patnareversed the decree of the Lower Court to some extent holding that the hill was not the Debutter property of the Jains but was the property of Raja of Palganj whose title had been settled by that time and massed to Swetambers by the sale deed dated 9-3 1918 and it was further held that the acts complained of were not shown to interfere with

the Digambars’ right of worship of the 21 ancient shrines and tonks and that the proposed gate was not shown to be intended to obstruct their access to the hill. The matter was settled and affirmed by the Privy Council as reported in AIR 1933 PC 193 and the Privy Council held that it was established that the Jain Community has belief and faith on the spiritual quality in some way attached to the hills but this is a matter of faith and cannot in itself determine the physical ownership of the hill and hence it was held that the hill was not the debutter property of the Jains but was the property of Raja.

Thir Lordships of Privy Council held the erection of Dharmshalas. Rest houses for Pilgrims and stationing of Santries and night watchmen in the hill do not any way interfere with the right of worship of the Digambari and so gate way was also not intended to he erected for obstructing Digambaries. But the replacing of Charans by Swetambaries were liable to be restrained and as such High Court decree was varied to that extent only.

20. After the case ended in the Privy Council and till 1953, there were no dispute or litigation as is found from the records but after Zamindari Abolition Act coming into force of the Bihar Land Reforms Act, 1950 there was a notification on 2-5-1953 by the Governor of Bihar Vide Notification No. 955/LR/ZAN/ under Section 3(1) of the Act declaring that the estate bearing Touzi No. 20/1, Parasnath hill belonging to the proprietor mentioned in the Schedule thereto had passed on and vested in the State of Bihar. Swetamber Murti Pujak Jain Community took up the matter with the State of Bihar for withdrawal of the notification in view of the fact that the whole of the hill isconsidered as religious pilgrim of the Jain community. There were various correspondences and discussions and negotiations which ended in March, 1964. On 1-4-1964 while the negotiations were still going on the Government of Bihar at Patna wrote to the Deputy Commissioner of Hazaribagh to take possession of the hill under the notification of vesting. On 2-4-1964 the Deputy Commissioner, Hazaribagh informed that the possession was taken and confirmation was reported accordingly. A writ petition was filed by the Swetamber before the Supreme Court on 21-4-1964 challenging the

Notification of vesting under the B.L.R. Act but the same was withdrawn on 8-5-1964 with a liberty to re-file the same before the High Court. It is stated that as negotiations again started between Swetainbers and the State of Bihar, the writ petition was withdrawn and a memorandum of understanding was signed vide Ext. 9 and ultimately the agreement was entered into between Swetambers and the State of Bihar on 5-2-1965 (Ext. 9/1). It appears that a second agreement was also entered into between the Digambers and the State of Bihar on 5-8-1966 (Ext. D/1). It is alleged that in the year 1966-67, Digambers tried to make some constructions in plot No. 67 and hence the Swetambers filed Title Suit No. 10 of 1967. In the agreement arrived at between Swetambers and the Governor of Bihar, the State of Bihar made an undertaking in respect of the rights and obligations declared and possessed by Swetambers by different judgments passed by the High Courts of Patna. Calcutta and also by the Privy Council and that those rights which have been acquired through those judgments shall not be interfered by the State. It was further agreed upon that the temples, Dharmshala etc. on the hill are not covered by the Notification under Section 3(1) of the Bihar Land Reforms Act and that the Swetambers would retain in full control over the temple, shrines in the hill and religious establishments thereof.

21. The Forest within the hill was agreed upon to be managed through agency of the Forest Department of the State but there would be no infringement of the religious rites or ceremony of Swetambers in managing the Forest and the profits that would be accrued from, would be shared annually between the parties in 40/60 shares and in that view of the matter, the question of compensation as envisaged under the Bihar Land Reforms Act, 1950 would not arise to be paid to the Swetambers due to vesting. After such agreement was arrived at between Seth Anandji Kalyanji of Swetamber community and the State of Bihar, Digamber sect started agitation against it and it was contended by them that their rights and privileges over the hill had been seriously prejudiced by the said agreement. Then the agreement between Digambers and the State of Bihar came up on 5-8-1966. In that agreement also, the State of Bihar recognised all the rights and privileges of Digambers established under

the judicial pronouncements. It was further agreed upon that the Advisory Committee would be set up for the purpose of development etc. of the hill and one representative would always be from the side of Digamber Jain community. It was agreed upon that agreement arrived at between Swetamber and the State of Bihar was never intended in any manner to alter or affect the rights and interests of Digambers.

22. In Title Suit No. 10 of 1967 the plaintiffs are the Managing Trustees of Seth Andnadji Kalyanji representing the Swetamber Murtipujak Jain Community of India and the defendants originally were only the Digambari Jain Community but later on added State of Bihar as defendant No. 7. The palintiffs in the suit based their claim on the agreement of 1965 and made the following prayers :

(i) That on adjudication it may be declared that the defendants have no right to put up any building or structures of any kind or anywhere in Parasnath hill as described above.

(ii) That the defendants and/or the entire Digamber Jain Community, their contractors, servants and agents may be restrained by an order oi” permanent injunction from putting up any building, constructions of any kind anywhere in or upon the said Parasnath hill and from seeking or collecting materials in or upon any part of the hill.

(iii) That the defendants and the entire Digamber Jain Community may be ordered by a mandatory injunction to remove the construction were which they might have put up on the said Parasnath hill and removed such materials which might have been gathered or rested the lands in its original position .

(iv) That ad-interim injunction be issued against the defendants, Digamber Jain Community, their contractors, servants and agents from putting up any further construction or structures of any kind anywhere of the said Parasnath hill and from covering lands and materials thereon.

(v) A decree for cost and interest till realisation may also be passed in favour of the plaintiffs and against the defendants and their personal property.

(vi) That a decree for any other relief orreliefs for which the plaintiffs may be found entitled to may also be granted.

23. Digamber challenged the suit by filing written statement contending inter alia that the whole of the hill had been vested in the State of Bihar under the Bihar Land Reforms Act without any incubranccs whatsoever and as such the plaintiffs have got no proprietory right not any right to restrain Digambers in exercising their right of worship and for proper establishment of their right of religious rites and ceremony and they are entitled to those acts and things necessary for their proper performance of religious rites and that there is no scope of any injuntion restraining the defendants i.e. Digambars in any way whatsoever. Their further claim is that the agreement arrived at between the State of Bihar and the Swetambers in the year 1965 has got no validity/sanctity in the eye of law.

24. It is the contention of Digambers that the Swetambers refuse admission to Digamber pilgrims to their two Dharmshalas at the top of the hill and as such the resting place of Digamber pilgrims is absolutely essential as the top of the said hill where the shrines are situate is subject to sudden outbrusts of rains, storms and gates and for this Tirtha Kshetra Committee had to start a construction for roofing the Digambari pilgrims against the natural calamities. On previous occasion also, there were proceedings under Sections 107 and 144 of the Code of Criminal Procedure in view of the aggressive and violent attitude of the Swetambers when this construction was being put up by the said Tirtha Kshetra Committee.

25. The maintainability of the suit has also been challenged on the ground that Seth Kalynee Anandjee does not represent the Swetambaries as a whole as because there are more sects in the Swetamber Murtipujak Jain Committee also. It is the specific case of Digambers that tinder the Notification of the Bihar Land Reforms Act. the hill has totally been vested with the State of Bihar nd there cannot be any alienation of the property by way of any agreement whatsoever by the State of Bihar in favour of Swetambers or any other sects which would mean the divesting of the property and the same is not entertainable in the eye of law.

26. Defendant No. 7 i.e. the State of Bihar aiso contested the suit by filing written statement wherein entering into an agreement with Swetamber Munipujak Jain Community is admitted but they have stressed that the hill has been vested to the State of Bihar under the Bihar

Land Reforms Act, 1950 and the Forest Department has been managing the forest of the Parasnath hill in terms of the Bihar Land Reforms Act, 1950. According to them, the agreement was arrived at only for substitution of the statutory compensation payable under the said Act. The State of Bihar has admitted that the agreement of 1965 is valid, legal and has been acted upon since the date of its execution i.e. in the year 1965. It was further contended that by reason of the vesting,under Sections 4(a) and 4(f) of the said Act, the Collector was not to take charge and actually did not take charge of the Institution which are held to be sacred by the Jain Community nor of the trusts or buildings connected therewith which are managed and controlled by Sheth Anandji Kalyanji Trust representing the Swetamber Jain Community of India.

27. In Title Suit No. 23 of 1968, Digambers represented by their five individual members in the representative capacity claimed the following reliefs :–

“(i) Declaration that the said purported agreement dated the 5th February, 1965, referred to in the plaint is null and void.

(ii) Declaration that the said purported agreement dated the 5th February, 1965, is at any rate, null and void and not binding on any of the followers of the Digambar Jain religion and that none of the rights of the followers of Digambar Jain religion are, in any way, affected or prejudiced by the said purported agreement.

(iii) A decree adjudging the said purported agreement dated the 5th February, 1965, to be void;

(iv) Alternatively, a decree for the adjudication of such part of the said purported agreement uated the 5th February, 1965, to be void as to this Court may deem just and proper in the facts and circumstances of this case;

(v) Manitatory injunction directing the defendants Nos. 2 to 10, their servants and agents to demolish and/or to get demolished and/or to remove and/or get removed the said new constructions and the stones etc. mentioned in paragraphs 49 and 50 of the Plaint;

(vi) Permanent injunction restraining the defendants Nos. 2 to 10 and/or the followers of the Swetamber Murtipujak Jain religion, their agents, servants and contractors from making any further constructions of the nature referred to

in paragraph 53 of the plaint in any part of the said Parasnath Hilt;

(vii) A declaration that the plaintiffs and the followers of Digamber Jain Religion are entitled to construct Dharmshalas and/or Rest House on the said Parasnath Hills;

(viii) Permanent injunction restraining the defendants, their agents and servants and/or any of the followers of the Swetamber Murtipujak Jain religion from in any way interfering and/or obstructing the plaintiffs or any of the followers of the Digamber Jain religion from enforcing any of their rights over the said Parasnath hill including the right to construct Dharamshalas or Rest House over the said Hills;

(ix) Costs etc.”

28. It may he mentioned that Digambars raised objection regarding the agreement arrived at between Sheth Anandji Kalyanji Trust and the State Government on the plea that their right to worship at the shrines on the said hill and all ancillary rights thereto have been obstructed and taken away by such agreement.

29. It is the case of Swetambers that the State of Bihar invited Digmbars also in a tripartite agreement so that their rights whatsoever may not be obstructed by the said agreement, but it is stated that the Digambars did not agree to it and as such the State of Bihar entered into a separate agreement with Digambars on 5th August, 1966, clarifying the points of disputes which had been raised by the Digambers.

30. It is case of Digambers that Sheth Anandji Kalyanji have no proprietary interest over the hill property nor they have any hold in the forest rather the Jain community as a whole has a right to worship on the shrines over hill and the other customary rights arising therefrom and that all the rights over the hill and its ancilliary properties have already been vested in the State of Bihar and when the vesting order was challenged in the Supreme Court of India by Swetambers and then the case was withdrawn on the ground to file a writ petition under Article 226 of the Constitution before the High Court of Judicature at Patna challenging such vesting and when no such writ was filed, the said vesting became complete and closed and thus there was no scope of reopening it by way of agreement of 1965.

31. In this case also, both the State of Bihar

and Swetambers contested and practically Swetambers represented by Sheth Anandji Kalyanji trust through their nine trustees have put the same case as they pleaded in their Suit (T. S. No. 10/67) in Title Suit No. 23 of 1968 by way of filing written statement. The State of Bihar as defendant No. 1 also filed written statement reiterating their stand as stated earlier as in Title Suit No. 10 of 1967. The learned Court below rightly found that both the suits were fought between the same parties and the crux of dispute also remained the same and as such both the suits were analogously tried and disposed of. On the basisof the pleadings of the parties, the following issues were framed :–

” 1. Are the suits as framed maintainable ?

2. Have the plaintiffs in the two suits/any cause of action ?

3. Is T. S. No 10 of 1967 bad for nonjoinder of the State of Bihar?

4. Are the two suits barred by estoppel and res judicala ?

5. Has the proprietary interest of Sheth Anandji Kalyanji Trust representing the Swetamber Murtipujak Jain Community of India represented by Taugi No. 20/1 (Parasnath Hil) vested in the Stale of Bihar under a notification dated 2nd May, 1953, issued under Section 3 of the Bihar Land Reforms Act or by the subsequent notification ?

6. Is the agreement dated the 5th February, 1965, entered into Murtipujak Jain Community of India and the State of Bihar illegal, ultra vires, void, mala fide and is in colourable exercise of powers without any public interest and without any compelling necessity ?

7. Has the agreement dated 5th February, 1965, between Sheth Anandji Kalyanji and the State of Bihar thrown cloud over the rights and interests of the Digambers sects of Jain over the said Parasnath hill and the temples, Tonks and their rights to worships ?

8. Are the plaintiffs in T. S. No. 10 of 1967 entitled to a permanent injunction restraining delendunts from constructing any building or structure on the Parasnath hill represented by Tauzi No. 20/1 ?

9. Arc the plaintiffs of T. S. No. 23 of 1968 entitled to challenge the lagality and validity of the agreement dated 5-2-1965 entered into

between Anandji Kalyanji Trust and the State of Bihar ?

10. Have the defendants of T. S. No. 23 of 1968 wrongfully, illegally and mala fidely between 23rd October, 1967 and 8th Novermber, 1967, constructed elevan platforms on the Parasnath hill described in Paragraph 50 of the plaint with charans bearing inscriptions corresponding to 5th November, 1967 ?

11. Are the plaintifs of T. S. No. 23 of 1968 entitled to a mandatory injunction directing the defendants Nos. 2 to 10 to demolish and remove the construction etc.?

12. Is T. S. No. 23 of 1968 barred by law of Limitation ?

13. Whether the trustees of Anandji Kalyanji Trust as representing the Swetambers Jain Community of India are in possession, management and control of the Parasnath hill bearing Tauzi No. 20/1, subject to the rights and management of the forest department as or is provided in the agreement dated the 5th February, 1965 ?

14. To what relief, if any, are the plaintiffs in two suits entitled ?”

32. Issue No. (3) was heard as a preliminary issue and the State of Bihar was made party by the plaintiffs of T.S. No. 10 of 1967 as defendant No. 7 and they filed their written statement as mentioned and Digamber had also filed additional written statement after that.

33. The case of the parties have been
elaborately stated in the impugned judgment and
as such it is not necessary to be reiterated and
whenever necessary for the purpose of discussion
in the Appeals the relevant portion would be
referred to.

34. In the plaint of Title Suit No. 10 of 1967 and also in the Written Statement in Title Suit No. 23 of 1968 the Swetambers have stated that the plaintiffs, Sheth Anandji Kalyanji Trust was the owner and was in possession of the Parasnath hill comprising an area of 16 thousand acres including the temples, tonks, shrines etc. having purchased the same from Raja of Palganj by a sale deed dated 9-3-1918, as statede earlier. By such purchase, according to the plaintiffs, whatever right subsisted with Raja of Palganj have been vested in the plaintiffs and when moity was claimed by Raja of Nawagarh, the same was

also acquired by the plaintiffs by way of lease granted in their favour by Raja of Nawagarh in 1918 itself. It is their further contention that by various judgments in the litigations, as stated earlier, the Swetambers who are represented by the plaintiffs have acquired right and possession over the whole of Parasnath hill and the Digambers had only the limited right of worship of their Charans and Jatmandirs. The pilgrrims of Digambers can only stay in the Dharamshala and the rest house with the permission of Swetambers and by the last judgment in the Injunction case, the limited rights of Digambars have been specifically defined and after that judgment the Digambers had got no rights in the hill except that of right of performing their rites and rituals in the charans and four Thirtankars and Jalmandirs. It is also the case of the plaintiffs that the claim of the State of Bihar of vesting of Parasnath hill by Notification under Section 3(1) of the Bihar Land Reforms Act, 1950 bearing No. 155/LR/ZAN dated 2nd May, 1953 declaring that the Estate of Parasnath hill having Tou/i No. 20/1 had passed to and vested in the Stale of Bihar was totally illegal and improper and not in accordance with law as there was no publication in two Newspapers which was mandatory as per the provisions of Bihar Land Reformes Act and when the Parasnath hill has got the characteristic of religious nature the same cannot be vested to the State of Bihar and after the agreement was arrived at in the year 1965 between the State of Bihar and the Swetamber Murtipujak Jain Community represented by plaintiffs i.e. Sheth Anandji Kalyanji trust, there remained no scope of the Stale of Bihar to claim again the right of vesting of the Parasnath Hill.

35. It was further the case of the plaintiffs that even, if the hill was vested then also half a mile area around temples and tonks situated on the top of the hill were left exclusively in possession and Management of Swetambers and the forest area of the hill, although being managed by the Forest department but the same was being managed as an agent of the plaintiffs and as such it is claimed that Digambars or none else has got any right to put up any construction over the hill or any part of it without proper permission from the Swetambers i.e. the plaintiffs. But, when the defendants Nos. 1 to 6 in Title Suit No. 10 of 1967 representing the Digamber Jain Community had

put up certain construction of Kaccha tin shed in the area about 20’/12′ and also had put a pitched tent in the area of 676′ over plot No. 67, khata No. 25, khewat No. 1 in the hill of Parasnath it caused interference with the peaceful possession and management ot’the Parasnath hill by the plaintiffs and as such they had to come for filing the suit being Title Suit No. 10 of 1967 for the reliefs as already mentioned above.

36. The defendants Nos. 1 to 6 in Title Suit No. 10 of 1967 i.e. the Digamber sect of the Jain Community denied all the claims made by the plaintiffs and had claimed that the agreement arrived at between the State of Bihar and the trustees of Sheth Anandji Kalyanji trust representing the Swctamber Murtipujak Jain Community was illegal as there was no scope of entering into such agreement by the State of Bihar when after coming up of Bihar Land Reforms Act, the whole of Parasnath hill including the soil underneath, tonks, shrines, Dharmashalas, Rest Houses etc. had vested in the State of Bihar and there remained no scope of divesting and in that view of the matter, legally the agreement is non est and is void and illegal.

37. In the plaint of Title Suit No. 23 of 1968 as well as in their written statement in Title Suit No. 10 of 1967. Digambers have also mentioned about certain disputes and litigations between the parties inter se or between one of the sects of the Jain community and the Ex-landlord of the hill and by referring the decisions of different Courts including that of Privy Council, it was stated that those have become state after the Independence of India and the Constitution Of India came in force and all those judgments are required to be looked into in the light of the Constitution and changed circumstances and the different laws enacted in conformity with the Constitution. According to Digambers, there cannot be any exclusive right of any of the sect of the Jain community in the Parasnath Hill, rather none of the sects have got any right over the said of Parasnath hill except that of right of worship in the shrines, tonks and Mandirs etc. by the whole of the Jain community, but on the same breath it was further asserted that every inch of the land of Parasnath hill was sacred to the Jain community and as such on every particles of the hill being sacred and religious to the Jain Community the whole of the Parasnath hill should be considered

as a religious Institution for the whole of Jain Community vis-a-vis to any of the sect, even on the face of vesting in the State of Bihar and as such the ancillaries and customary rights of the Jain community remained untouched even after such vesting.

38. The cause of action for Title Suit No. 10/ 1967 arose when the Digambers put up some constructions in the name of Dharamshala and Rest House in the hill; while in Title Suit No. 23 of 1968, the cause of action is said to have arisen on 5th of February, 1965 when the said purported agreement was entered into between the State of Bihar and the so-called trustees of Anandji Kalyanji trust and thereafter from day to day and also on 14th of August, 1967 when the followers of Swetamber Community and their servants and agents and contractors placed some stone saturated with vermilion and oil (as referred to in para 15 of the plaint) of Parasnath Hill, with a view to wound the religious feelings of Digambers and also with an intention to interfere in the right of worship at Parasnath Hill.

39. As stated earlier, the State of Bihar by filing written statement in both the suits had claimed that the whole of the Parasnath hill had vested into it after Notificaiton under Section 3(1) of the Bihar Land Reforms Act, but they had also pleaded by way of admission regarding the agreements being arrived at between the State of Bihar and the two sects of the Jain Community in the 1965 and 66 respectively considering the sentiments of the Jain community towards Parasnath hill being a holy place of pilgrimage and thousands of Jains visiting the hill every year to offer their worship, but it was asserted that the whole of the hill was not a religious Institution, but was religious in respect of the area where the tonks, shrines, Charans are situated meaning thereby half of mile radious area on the top of the Parasnath Hill, State of Bihar had also mentioned the circumstances which led inentering into the agreement with the different sects of the Jain community, which would be discussed in details later on.

40. After the issues were framed in the case, paties were given liberty to adduce evidence and file their documents. Voluminous documents have been filed by ull the parties in both the suits and oral evidence was also adduced. For and on behalf of the plaintiffs in Title Suit No. 10 of

1967, as many as 11 witnesses have been examined, out of whom P.W. 10 and P.W. 11 were examined on commission. For and on behalf of the defendants i.e. Digmabers, in total 32 witnesses have been examined, out of whom P.W. 32 had been examined on commission.

41. After consideration of the evidence on record and the documents filed by the parties, learned Court below by the impugned judgment decided the issues framed, as mentioned above, and held that the proprietary interest of Sheth Anandji Kalyanji Trust inTouzi No. 20/1 acquired from Raja of Palganj vested in the State of Bihar, by virtue of Notification under the Bihar Land Reforms Act, but the trustees of the above trusts are in possession, management and control of half a mile area around the top of the hill, by virtue of their agreement, Ext. 9/A and as such they are entitled to restrain the defendants i.e the Digambars or anybody else from making any kind of construction within the area under their control, but the Swetambers cannot claim their 60 per cent share in the income in lieu of compensation or annuity as provided in the Act as mentioned in the last portion of para 3 of the agreement, Ext. 9/A and the same has been struck down. The Digambers-defendants are restrained from constructing any building/structures on such portion of the Parasnath hill which are held to be in the possession, management and control of Swetambers vide Ext. 9/A without the permission of the plaintiffs of T. S. No. 10 of 1967. The declaration sought for by the Digambers in their suit being T. S. No. 23 of 1968 has not been granted holding that they are not entitled for such declaration that the whole of the agreement, Ext. 9/A as null and void and inoperative except that of the last portion of para 3 of the agreement concerning the sharing of 40/60 between the Slate of Bihar and the Swetambers. The prayer for mandatory injunction for demolishing the constructions made by the Digambers in the Parasnath hill has also been dismissed. As rpgards Digambers’ ancillary right to construct a Dharmashala or Rest house near the top of the hill is allowed only with the permission of Sheth Anandji Kalyanji Trust and Trust has also been directed to accord such permission within aperiod of two months from the day of the written requests if made from side of the Digambars. Further, the Digambers right of construction has

not been restricted to only one Rest house or Dharmshala for their pilgrims. Both the suits were thus decreed partly and dismissed partly and preliminary decree was asked to be drawn as per the operative part of the judgment.

42. As mentioned earlier, all the parties to the suits have proferred appeals and all these appeals were taken up together and heard. Strenuous arguments were placed by Mr. Bacchawat, for and on behalf of Swetambers, Mr. R. K.Jain and Mr. Ram Balak Mahto, for and on behalf of Digamber Jain Community and Mr. M. Y. Eqbal,’ for and on behalf of Stale of Bihar and arguments continued for a long period of three months with intermitted gap.

43. At the very outset, preliminary objections have been raised regarding the maintainability of the suits filed by me Swetambers and Digambers as contained in Issue Nos. 1 and 2.

44. Let me take up the matter of maintainability
pointwise separately for convenience. Regarding
maintainability of suit No. 10 of 1967 as per
framing of the suit, three broad aspects have been
raised viz :

(i) For non joinder of all trustees;

(ii) For want of proper verification of plaint;

(iii) For want of relief of declaration;

45. In the written statement filed by the Digambers, it was asserted in para 3 of the wrillen statement that the suit being Title Suit No. 10 of 1967 is not maintainable because there is no such trust as alleged and if any such trust exists then in absence of the alleged trustees, the suit is not maintainable. Regarding the existence of trust, the matter Will be taken up while deciding the merit of the suit later on, but as asserted by the plaintiffs in Title Suit No. 10 of 1967 regarding the framing of the suit and the preliminary objection thereof shall be taken up on the basis of the pleading alone.

Regarding the first point of nonjoinder of all trustees, it is the contention of Mr. R. K. Jain, appearing on behalf of the Digambers that Section 48 of the Indian Trust Act requires that all the trustees, must join and in support of that submission, he has referred to a decision of Madras High Court, as reported in AIR 1938 Madras 982 (Vedakannu Nadar v. Annadana) wherein it was held that no suit with regard to any trust property would be maintainable by one or

some of the trustes only if the remaining trustees are not before the Court. Another decision of the Patna High Court also referred to in this context being AIR 1962 Patna 160 (Nirmal Chandra v. Kshetra Mohan) and some observations made by the same Court in that context as reported in AIR 1962 Patna 452 (Dr. Parmanad v. District Board, Patna).

46. The suit being Title Suit No. 10 of 1967 was filed by the nine persons alleging to he the Managing Trustees of the Seth Anandji Kalyanji Trust. According to Mr. Jain, the expression ‘Managing Trustees’ is an indicator that there are more trustees other than the Managing trustees but those trustees having been not joined as parties to the suit, the suit is not maintainable.

47. Mr. Bacchawat, for and on behalf of the plaintiffs of the suit firstly took the objection that regarding the frame of the suit, no objection had been raised regarding non joinder of the parties as regards other trustees, rather there was specific plea in the written statement of Digambars that the State of Bihar was a ndcessary party in the suit and on the basis of that objection being raised the plaintiffs had made State of Bihar a party-defendant No. 7. Had there been any such specific plea regarding joinder of other trustees than the plaintiffs would have taken proper steps and when there was no such specific objection regarding non joinder of other trustees, no issue was framed as such. Now, at a belated stage in the First Appeal, this objection has been raised, although there was no such specific averments in the memo of appeal filed by the Digambers regarding non joinder of parties, kegarding nonjoinder of parties, issue No. 3 was framed and the same was decided and as per decision of the Court below, State of Bihar was made a party-defendant No. 7. If any such plea regarding nonjoinder of other trustees would have been taken then the same would have been decided in the preliminary issue itself. Moreover, such plea of non-joinder of other trustees in the suit is not maintainable from the very fact that Digambers when filed subsequent suit being Title Suit No: 23 of 1968 made these very plaintiffs as defendants describing them as trustees of Seth Kalyanji Anandjee trust. Thus, according to Mr. Bacchawat, such plea has been taken by Mr. Jain for plea’s sake when admittedly Digambers had described the plaintiffs as the trustees in their suit as they are only trustees of Seth Anandji Kalyanji trust.

48. Mr. R. K. Jain further submitted that question of maintainability of the suit was raised and issue No. I was framed and then under that issue, this question of non joinder of trustees, can be decided. It is his further submission that nonjoinder of all the trustees hits on the very maintainability of the suit and not a simpliciter non-joinder of proper or necessary parties.

49. It has been submitted by Mr. Bacchwat by referring to various decisions of different High Courts as reported in AIR 1984 Gauhati 39 Achouba Singh v. L. Achouba Sihgh, AIR 1959 All 579 (Capt. S. V. Daniels v. Gragary Warden Trust) and AIR 1960 Madh Pra 249 (Muslim Wakf Board. Bhopal v. Municipal Board, Bhopal) that the non-joinder of some of the parties cannot be allowed to straighway dismiss the suit rather opportunity must be given to the adverse parties to add those parties, if really necessary for adjudication of the dispute. When no such specific; plea of non-joinder of other trustees were taken then on that ground for the first time in the appeal, cannot make the suit non-maintainable rather opportunity must be given to the plaintiffs to make the other trustees as parties to the suit and the same can be remainded back to the lower Court on that scroe alone.

50. Mr. Bacchawat further referred to Order
1, Rule 13 of the C.P.C. regarding non-joinder of
parties and it is contended that when no such
specfic plea of non-joinder of parties have been
taken regarding other trustees of the trust at the
time of settlement of issues then the same can be
considered or deemed to have been waived by the
defendants.

51. It has again been submitted by Mr.
Bacchawat that nowhere it has been di sputed that
the plaintiffs in the suit do not belong to the
Swetameber Murtipujak Jain Community and in
rhat view of the matter when the suit has been
filed in the representative capacity under Order 1
Rule 8, C.P.C. then even if the plaintiffs are not
the Managing trustees, they being the members
of the Swetamber Murtipujak Jain Community
then in that capacity being a representative suit,
the plaintiffs can proceed with and the suit is
maintainable. Further arguments have been made
by referring to Order 31, Rule 1, C.P.C. to the
effect that the question of making trustees as per

Section 38 of the Indian Trust Act arises only when the beneficiary or beneficiaries do not join as parties. Herein, in the present case, it is stated that Swetamber Munipujak Jain Community is the beneficiary and some of its members have filed the suit in the representative capacity and as such the beneficiaries are the parties. In that respect the evidence of P.W. 11 has been referred to wherein it was stated that the plaintiffs are the only trustees of Seth Anandji Kalyanji trust and no other trustees are there. I have scrutinised the cross-examination portion of P.W. 11. There is no denial to that effect and rebuttal of the fact as stated by P.W. 11, Sheo Lal Keshavlal Sah. The defendants also in their evidence have not made only specific denial to that effect.

52. In this context, Mr. Jain has further referred to the writ petition which was filed by the Swetambers in the Supreme Court being Ext.B/1 contending that in that writ petition only eight persons as trustees had filed the writ but those trustees are different from those mentioned in the plaint. The Certificate of Registration of the trust which has been marked as Ext. 10/A has also been referred in that context by Mr. Jain, wherein the number of trustees is mentioned as nine, but most of them are different from those mentioned in Suit No. 10 of 1967 and it is the submission of Mr. Jain that the plaintiffs have become self styled to file the suit as Managing Trustees of the Seth Anandji Kalyanji Trust but they failed to prove that they were the Managing Trustees.

53. No evidence has been led from the side of the Digambers challenging the status and capacity of the plaintiffs of filing the suit. Eveu the averment in the cause title of the plaint, regarding Managing Trustees of Seth Anandji Kalyanji Trust have not been challenged/denied in the written statement rather the Digambers had made these plaintiffs as defendants mentioning them as trustees of Seth Anandji Kalyanji Trust in the subsequent suit being Title Suit No. 23 of 1968 and in that view of the matter, I find that the Digambers have just raised this question for the purpose of secondary argument alone, but not seriously challenged. There might be change of trustees time to time, after the Certificate of Registration was issued as per Ext. 10/A and there might be other trustees who were managing the trust while filing the writ petition in the

Supreme Court, as contained in Ext.B/1, but the fact remains that the plaintiffs contended that they were Managing Trustees at the time of filing of the suit and hence I find that this objection raised regarding frame of the suit is not tenable, although it is reserved to be discussed later on as to the existence of trust and its trustees itself.

54. Second objection regarding frame of the suit is with regard to improper verification. Plaintiff No. 7 had verified the plaint as attorney of the plaintiffs, i.e., the Managing Trustees. It is the submission of Mr. R. K. Jain appearing on behalf of the defendants-Digambers that the plaint should be thrown out as the same has not been verified by a proper person. No power of attorney was proved to show that the plaintiff No. 7 was given the authority by the other plaintiffs. It has further been stated that the Vakalatnama was also filed being signed by the attorney when there was no power of attorney available on record.

55. Mr. Bacchawat submitted that this sort of objection is not tenable at the belated stage as there was no objection raised from the side of Digambers as required under Order 8, Rule 2 of the Code of Civil Procedure. His further submission is that in the memorandum of appeal also, this ground has not been taken regarding the illegal verification of the plaint.

56. It appears that no power of attorney has been filed to prove that plaintiff No. 7 was given the power to act for and on behalf of the plaintiffs, but this plaintiff No. 7 is one of the plaintiffs and when there are several plaintiffs then as required under Order 6, Rule 15. C.P.C. and the Patna High Court Rules, when there are several plaintiffs, one of the plaintiffs is competent to verify the plaint or act on behalf of the other plaintiffs. Moreover, such objection was not there at the time of filing the written statement nor such objection was taken in the memo of appeal and this point was never raised even before the trial court as is found from the written argument filed in the suit from the side of the defendants-Digambers.

In that view of the matter, in my opinion, this plea has been taken only for plea’s sake and it has got no substance. Moreover, even if there is such defect regarding verification then under Order 7, Rule 11, C.P.C., the plaint cannot be rejected but opportunity must be given to the plaintiffs to rectify such defect. Here, no such objection was

raised and practically when one of the plaintiffs amongst other plaintiffs had verified the plaint, there was no scope to raise such objection also.

57. Regarding the third objection that the frame of the suit is bad and the suit becomes non-maintainable for want of relief of declaration, it is contended by Mr. R. K. Jain, on behalf of the defendant-Digambers that under Section 34 of the Specific Relief Act, the present suit is not maintainableas there was no prayer for declaration of any right, title or interest over Parasnalh hill for which injunction has been sought for and in that view of the matter, the suit is not maintainable. According to him, simpliciter prayer for injunction is not maintainable when there is no prayer for declaration over the properties for which injunction of restraint was pleaded against the defendants. His submission is that unless there is a declaration of title to the lands contained in Touzi No. 20/1 and that the agreement of 5-8-1966 in favour of Digambers by the State Government was void and illegal, there remains no scope of praying for injunction of restraint that too some prayer in the form of mandatory injunction.

58. When this argument was placed by Mr. R. K. Jain, learned Advocate appearing for Digambers, Mr. Bacchawat, appearing on behalf of the plaintiff’s-Swetambers have raised vehement objection that such sort of plea of maintainability cannot be raised at this stage when there was no such plea before the trial court either in the written statement or in the arguments placed at the close of the trial nor there was any point taken in the memo of appeal filed by the Digambers.

59. On proper scrutiny of the plaint of Title Suit No. 10 of 1967, it appears that nowhere the plaintiff had taken any plea regarding the tjtle of Parasnath hill as contained in Touzi No. 20/1, rather their reliefs are based on the agreement dated 5-2-1965 arrivedat between the Swetambers and the State of Bihar. When their suit is based on the basis of the agreement then the question of declaration of title over Touzi No. 20/1 or any part of the Parasnath hill is redundant. According to Mr. Bacchawat, because of the previous judgments wherein it was held that the Swetambers alone had the exclusive right of the Management and control over the shrines and areas containing the religious sanctity over the

Parasnath Hill, such sort of declaration is not necessary and when the suit has been filed under Section 38 of the Specific Relief Act, no question of declaration is necessary. He has further submitted that Section 34 of the Specific Relief Act provides that no suit for declaration would be maintainable when the parties have got scope to pray for other relief’s. There is no such contrary provisions to the effect that other reliefs cannot be claimed without prayer for declaration and as such the submission made on behalf of the Digambers is not maintainable.

60. On perusal and proper scrutiny of the plaint and written statement, I find that the frame of the suit being Title Suit No. 10 of 1967 is not defective nor the same can be thrown out on such preliminary objection of maintainability as raised from the side of Digambers. Title Suit No. 10 of 1967 is framed and filed on the basis of right recognised by the State by the Agreement of 1965 and the reliefs claimed are said to be flowed from that agreement alone.

61. Regarding the maintainability of Suit No. 23 of 1968 filed by Digambers, it is submitted that when the plaintiffs in that suit have categorically admitted in their pleadings that the Parasnath hill as a whole had been vested to the State after coming into force of Bihar Land Reforms Act and its Notification made under Section 3 of the Act, there remains no scope of the Digambers to claim any relief against the Swetambers.

On this score, it is the submission of Mr. Bacchawat, appearing on behalf of the Swetambers that:

(i) The vesting being free from all encumbrances, right of worship of the Digambers and right of access to the hill being encumbrances are extinguished;

(ii) The right of worship of the Digambers is not protected by Articles 25 and 26 of the Constitution as the Bihar Land Reforms Act is placed in the IX Schedule;

(iii) The property being in possession of the State, according to pleadings the Digambers are not entitled to get any injunction.

It was further contended on behalf of the Swetambers that the suit for declaration about the validity of agreement dated 5-2-1965 having been not filed within the period of three years, the

suit is barred by Limitation under Article 58 of the Limitation Act.

62. It is also the contention of the Swetambers that the relief of mandatory injunction about the demolition of the construction is not maintainable as there is no allegation to the effect that such construction had obstructed the right of worship of the Digambers which alone can be granted as held in AIR 1933 PC 193.

63. Mr. R. K. Jain, appearing for and on behalf of the Digambers have refuted the submissions on the point of maintainability as formulated above regarding Title Suit No. 23 of 1968. His submission is that vesting was there no doubt but such vesting is subject to right of worship of the Jain Community over the temple, tonks and shrines over the top of the hill and such right being recognised under Articles 25 and 26 of the Constitution of India, the same cannot be taken away even by vesting also.

64. Mr. Bacchawat’s submission is that in
the Pooja’s case, it was observed by the learned
Subordinate Judge, Ranchi, that the right of
worship is nothing but a right of casement and
such observation is not in any way being altered
by the appellate courts up to the Privy Council
and as such, according tohim, the right of worship
being a right of casement comes within the
purview of the definition ‘encumbrances’ and
hence under Section 4(a) of the Bihar Land Reforms
Act at the time of vesting, such encumbrances
have been vanished. In supportof his submission,
he has referred to a judgment of Madras High
Court in AIR 1964 Madras 209 (M. Ratanchand
Chordia v. Kasim Khaleeli) wherein the
encumbrance was defined as follows (at p. 218 of
AIR):–

“The word “encumbrances” in regard to a person or an estate denotes a burden which ordinarily consists of debts, obligations and responsibilities. In the sphere of law, it connotes a liability attached to the property arising out of a claim or lien subsisting in favour of a person who is not the owner of the property. Thus a mortgage, a charge and vendor’s lien are all instances of encumbrances. The essence of an encumbrance is that it must bear upon the property directly and indirectly and not remotely or circuitously. It is aright in re aliena circumscribing and subtracting from the general proprietary right

of another person. An encumbered right, that is a right subject to a limitation, is called servient while the encumbrance itself is designated as dominant.”

In that judgment, the Madras High Court also observed that “easement is an encumbrance”. In that context, another judgment of the Calcutta High Court was also referred to by Mr. Bacchawat in AIR 1955 Cal 503 (Ganga Vishnu Bs.M.M. Co. Ltd.), wherein it was held that “the right of casement whether it belongs to the public or to the private individual must come to an end in view of the provisions of S. 16 of the Land Acquisition Act”. Regarding encumbrance, the judgment of Kerala High Court was also referred to being AIR 1972 Kerala 181 (George v. State), wherein also it was held that a class of land vests in Government free from all encumbrances including easement. So it is the submission of Mr. Bacchawat that right of worship of the Jain community vis-a-vis Digamber and Swetamber being an easement right must have vanished when Parasnath hill was vested in the State of Bihar as the admissions made by Digamber. He has further referred to the submissions of Mr. Ram Balak Mahto, another counsel appearing for and on behalf of the Digamber that even the temples, shrines over the Parasnath hill had also vested in the State of Bihar by Notification under Section 3 of the Bihar Land Reforms Act. In that view of the matter, Mr. Bacchawat’s submission is that as per the admissions of Digambers and as argued by them when there was total vesting of Parasnath hill to the State of Bihar then the right of worship which is nothing but an easement right making the same to be an encumbrance vanished due to the vesting in the State of Bihar.

65.,; Mr. R. K. Jain, appearing for and on behalf of the Digambers has submitted that the question of easement does not arise in the present case and the right of worship can never be considered as an easement right. As per the definition of easement under Section 4 of the Easement Act, there must be an existence of tenement, namely, servient and dominant but here there is no such servient or dominant tenement, hence the question of easement does not arise while deciding the right of worship. His further submission is that the right of worship is an inherent right of all individual or any community as per Articles 25 and 26 of the Constitution of India and such right

remains in vogue, even if there is vesting under the Bihar Land Reforms Act even which has been included in the 9th Schedule of the Constitution of India after its amendment. Mr. Bacchawat, to refute such submission, has contended that Section 18 of the Easement Act refers to customary easement when no question of dominant or servient tenement arises and thus worship of all category is nothing but a customary right and hence the right of easement included within the Easement Act and as such the same is also included in the definition of encumbrance as per the definition arrived at by the different High Courts as also by the Apex Court, as mentioned above.

66. The observation made by the learned Subordinate Judge in Pooja’s case referred to above regarding the right of worship as an easement right is an obiter dicta as could be found after going through the judgment and also the judgment of the appellate courts. In the appellate Court, this point was never considered about the character of the right of worship but the scenerio has been totally changed after Independence of India and coming into force of the Constitution. The right of worship and protecting the religious institution has been given the character of fundamental right as per Articles 25 and 26 of the Constitution of India and the same did not remain for interpretation under the Easement Act. In that view of the matter, I am not inclined to accept the submissions of Mr. Bacchawat, appearing for and on behalf of Swetambers that the suit of Digambers is not maintainable because of their plea of vesting to the Slate of Bihar under the Bihar Land Reforms Act of Tauzi No. 20/1 as a whole. The right of worship even after vesting must be subsisting but how far that would give any right to either of the sects of the jains in the context of the present suits is a matter of controversy which would be dealt in thejudgment at proper stage. Moreover, even under the Bihar Land Reforms Act, religious institutions are being taken into consideration as per Section 4(h) of the Act. As regards the second point regarding the right of worship being superior right protected under Articles 25 and 26 of the Constitution of India, as the Bihar Land Reforms Act is placed in 9th Schedule of the Constitution. I have already considered the matter above.

67. Regarding third point that when Parasnath hill has been vested in the State of Bihar and the State has taken over possession of the same, then there cannot be any scope of praying injunction by Digambers against Swetambers as per their own pleadings, this matter is directly involved with the mode in which vesting was there and this point would be considered at the time of discussion of vesting of Parasnath hill in the State of Bihar under the Bihar Land Reforms Act.

68. As regards the point of limitation raised from the side of Swetambers regarding T.S. No. 23 of 1968, it is submitted that the learned court below committed error in deciding issue No. (12) in holding that the suit is not barred by limitation. According to Mr. Bacchawat, declaration was sought for in respect of the agreement between Swetamber and the State of Bihar dated 5-2-1965 (Ex.9/A) and T.S. No. 23 of 1968 was filed on 6-2-1968 while the limitation of three years as contemplated under Article 58 or under Article 113 of the Limitation Act expires on 4-2-1968, the whole submission is wrong on the face of the records. On scrutiny of the original records of Title Suit No. 23 of 1968, it could be found that the suit was filed on 31-1-1968 and even if the submission regarding limitation and application of Article 58 or 113 of the Limitation Act is considered then also the suit is within the period of limitation and hence this submission has got no force. Moreover, it appears that cause of action for the suit did not arise only on 5-2-1965 i.e. the date of agreement as per Ext.9/A but also on other factors, the declaration was sought for on the cause of action dated 5-2-1965 and for such prayer of declaration, it is within the time frame as mentioned above. Regarding the prayer of injunction both in the restraint and in the form of mandatory nature, the cause of action arose when allegedly illegal constructions were made by the Swetamber in between the period from 23-10-1967 to 6-11-1967 and as such the impugned question of limitation does not arise as the same is within the period of limitation if calculated from the date of cause of action and the bundle of facts as stated in the plaint.

69. The illegal demolition of Dharmshala for which injunction in the form of mandatory nature was claimed was on 6-2-1967 and the constructions of illegal platforms were also at the same period, hence the suit being filed on 31-1-1968 definitely within the ambit of limitation period. Whether the constructions made by Swetamber which caused any obstructions to the right of worship of Digambers or not is a matter qf fact and that factum is on the root of the suit and not relevant for the purpose of maintainability on point of limitation.

70. It is true that in the injunction case, it was held that placing of Gentries, construction of gate etc. were not in the form of obstruction to the right of worship of Digambers but this fact is to be considered in the present circumstances and the changed scenario after the vesting. If the whole of the hill has been vested, then all rights to protect the hill lies with the State Government and if any encroachment is made by any of the sects then the State Government may take action against them but one sect cannot debar the other sect. But if vesting is not there, then the question is totally different. So the claims and counter claims made by Digambers and Swetabers in respect of restraint by injunction solely hinge on the vesting of the hill under the B.L.R. Act. For frame of suit, these points cannot come up for discussion which would be done at appropriate time while the point of vesting would be taken up. Thus regarding framing of suit i.e. Title Suit No. 23 of 1968, the submissions made by Mr, Bacchawal have got no force, hence on preliminary point regarding the form of suit of both Title Suits Nos. 10 of 1967 and 23 of 1968 are decided in the affirmative to the effect that both the suits are maintainable towards frame of the suits.

71. Next vital point comes regarding the vesting of Parasnath hill in the State of Bihar under the Bihar Land Reforms Act. As already stated decision of the suit totally depends on the vital point although this point was not pressed by the Swetambers in their suit. But the points raised in their suit also depend on this vital issue. Issue No. 5 was framed in the suit in the following manner:–

“5. Has the proprietary interest of Sheth Anandji Kalyanji Trust representing the Swetamber Murtipujak Community of India represented by Tauzi No. 20/1 (Parasnath Hill) vested in the State of Bihar under a notification dated 2nd May, 1953, issued under Section 3 of the Bihar Land Reforms Act or by the subsequent notification?”

72. After consideration of various documents

oral evidence and the previous judgments as mentioned earlier, learned Sub-Judge came to the finding that the proprietary interest of Sheth Anandji Kalyanji Trust under Tauzi No. 20/1 had been vested in the State of Bihar under the Bihar Land Reforms Act, but half a mile area was held to be not taken over possession by the State of Bihar and, as such in that half mile area management and control was held to be in favour of Swetambers since long and as such consequential reliefs were granted on the basis of the agreement arrived at between State of Bihar and the Swetambers. This finding of the learned Sub-Judge has been challenged vehemently from the side of the Swetambers on the following grounds:

i) Under the Bihar Land Reforms Act, 1950, no valid vesting was caused because of the non-compliance of mandatory provisions of Section 3(2) of the Bihar Land Reforms Act and such invalidity cannot be cured by, the Bihar Land Reforms Validation Act, 1964, in view of the judgment of the Supreme Court in the case reported in AIR 1968 SC 90 (Giriwar Prasad Narain Singh v. Dukhu Lal Das) wherein it was held that amendment of 1964 has no retrospective effect.

ii) The entire Parasnath hill is a temple or a shrine which is a religious institution belonging to Sheth Anandji Kalyanji Trust and hence it cannot be acquired or vested in the State of Bihar under the proviso of Section 4(f) of the Act as the Collector cannot take charge of religious institution belonging to a Trust.

iii) The mandatory provisions of Section 4(g) of the Bihar Land Reforms Act, regarding delivery of possession of vested property has not been complied with and the hill remained in possession of the Swetambers.

iv) As per Bihar Land Reforms Act, vesting/ acquisition can be made only on an estate comprising of agricultural lands because the enactment was based on agrarian policy and in that view of the matter, Parasnath hill being not a land or an estate within the definition of the Bihar Land Reforms Act and that of the Constitution of India, and never used for agrarian purpose is outside the scope of acquisition or vesting.

v) Notification of vesting were never brought into force and acted upon and as per the law enunciated by the Apex Court in Municipal Corporation for City of Pune v. Bharat Forge Co. Ltd., (1995) 3 SCC 434, on the principle of desuetude, the notification of the Bihar Land Reforms Act must be held to be dead and repealed.

vi) In view of the provisions of place of Worship (Special Provision) Act, 1991, specially Section 7 of this Act. which has overriding effect, the notification of vesting stands superseded and there cannot be a ground to change the place of worship by acquiring it and extinguishing the religious rights.

vii) By entering into the agreement in the year 1965 as contained in Ext. 9/A, the Govt. of Bihar had admitted that Parasnath Hill is a religious institution as a whole and several articles of it being considered as religious to the Jains and, as such, it was under the possession and ownership of Sheth Anandji Kalyanji Trust and when there is admission on the part of the State of Bihar not only in the agreement itself but also in the written statement about the validity of the agreement, the State of Bihar is now estopped from asserting that Tauzi No. 20/1 had been vested. It has further been challenged that the prayer of amendment of the written statement has been rightly rejected by the learned court below and the revision against it, has also been dismissed on withdrawal and hence the said point of amendment cannot be re-agitated in this appeal.

viii) Lastly, even if the estate is vested in the State, the Swetambers are adversely possessing the estate for more than 30 years and, as such acquired valid title and any claim of the State to recover the possession is hopelessly barred by limitation.

73. At the very outset, Mr. Bacchawat, appearing for and on behalf of the Swetambers has stated in the Bar that vesting or non-vesting is not the matter in issue in the suits or at least in the suit filed by the Swetambers, as their suit was based on the agreement of 1965 (Ext.9/A) and hence, vesting may not have much importance in deciding the suit filed by the Sw .ambers and also by the Digambers. The agreement of both the parties are the admitted position and also admitted by the State of Bihar. It is true that nowhere in the pleadings of Swetambers, there is any challenge regarding vesting at least in the relief portion, although some averments were there in the plaint regarding the same to the effect that there was no vesting, but in the plaint filed by the Digambers and the written statement in the suit of Swetambers, the Digambers have specifically averred that the Parasnath Hill as a whole has been vested in the State of Bihar after coming into force of Bihar Land Reforms Act and under the Notification made under Section 3 of the said Act. State of Bihar has also admitted and claimed that the whole of the Parasnath Hill i.e. Tauzi No. 20/1 have been vested in the State of Bihar, but in the same breathe, it has also admitted that execution of the deeds of 1965-66 in favour of the Swetambers and Digambers and validity thereof. But whether those agreements on the basis of which the suit of Swetambers have been filed required to be considered in the light of vesting? and whether the State of Bihar had the right to enter into the agreements either with Swetambers or Digambers even after vesting is a question to be determined for consideration of the reliefs asclaimed by the Swetambers and also by the Digambers. In that sense, although vesting has got no direct nexus with the present suits, yet the same is a must to be decided for coming into a just decision as to the status of the State or the parties concerned to enter into an agreement, on the basis of which suit of the Swetambers have been filed and the same being challenged by the Digambers in their suit.

74. Mr. Bacchawat submitted that the reliefs claimed by the parties and the question of vesting need not be decided. According to him, when Swetambers are entitled to and are in possession, they can get relief of injunction against others except the true owner, unless the defendants can show a better title. By such submission, Mr. Bacchawat wants to point out that even after the State of Bihar remained the owner after vesting then also on the agreements being arrived at between the State of Bihar and the Swetambers and possession been there in favour of Swetambers since long, they can claim for injunction against any other parties except the true owner i.e. the State of Bihar. But on vesting, if there is no agreement between the State of Bihar and the Swetambers. then being an intermediary, he cannot have any existing right to claim for injunction against some other. So all the points hinge on the validity of the agreement arrived at between the State of Bihar and the Swetambers for the purpose of reliefs claimed in the suit by the Swetambers. Again the validity of the agreement directly hinges on the vesting inasmuch as if there is total vesting and the rights of intermediaries have been abolished, then there cannot be re-vesting by the State in favour of the intermediary after such vesting as has been argued by the defendants Digambers and the State of Bihar. Thus, although the question of vesting is not directly involved in the suit, yet decision on vesting is necessary and the learned Court below has rightly framed issue No. 5 in that respect.

75. In the plaint of Suit No. 10/67, from the
frame of the suit, it is clear that the plaintiffs i.e.
the Trustees of Sheth Anandji Kalyanji had not
admitted any where regarding the vesting of the
hill with the State of Bihar under the Bihar Land
Reforms Act. In the written statement filed by the
Digambers and in the plaint of Suit No. 23/68, it
is the specific case of the Digambers that the
Parasnath Hill as a whole has been vested in the
State of Bihar, although it was contended that the
Parasnath Hill and its every particle is having the
religious sanctity amongst the Jains and, as such,
the whole of the Parasnath Hill is a religious
institution. State of Bihar in its written statement
in Suit No. 10/67, made some sort of admissions
when in para-6 it had stated in the following
manner:

“Indeed as provided by Section 4(f) of the Bihar Land Reforms Act, by reason of such vesting, the Collector was not to take charge and did not take charge of the institution which are held to be sacred by the Jain community nor the trust or the buildings connected therewith.”

It was further contended in para 9 in the following wordings:–

“By reason of such vesting, the Collector was not to take charge and actually did not take charge of the institution which are held to be sacred by the Jain community nor of the Trust or buildings connected therewith which are managed and controlled by Seth Anandji Kalyanji Trust, representing the Swetambers Jain community of India. According to Clauses 3 and 6 of the Terms of the Agreement of 1965, an area of half mile radius around the temple and shrine has been excluded from the boundary of the protected forest of Parasnath Hill and admitted to be under exclusive possession of Sheth Anandji and Kalyanji Trust.”

According to the plaintiff of Suit No. 10/67, the encroachment was made or threatened to be made within the half mile area and. practically, the suit is with respect to the said half mile radius area for the purpose of injunction as pleaded from the side of the plaintiffs and, as such, according to Mr. Bacchawat, when such sort of admission is there from the side of the State of Bihar, there remains no scope of deciding the factum of vesting regarding the whole of the Tauzi No. 20/1. It may be mentioned here that during the fag end of the trial of the suits, an amendment petition was filed from the side of the State of Bihar under Order 6. Rule 17 of the Civil Procedure Code for amendment of their written statement, but the same was rejected by the learned court below and a revision petition was preferred before this Court, which was also withdrawn as became infructuous due to delivery of judgment in the suits and First Appeals being preferred by all theparties against such judgment. This matter of amendment and its rejection would be considered later on. There are other factors which had already been mentioned earlier that these Swetambers had challenged the vesting before the Supreme Court in a writ petition, but the same was withdrawn with a liberty to file a writ petition before the concerned High Court under Article 226 of the Constitution of India, but no such writ petition was filed rather the agreement came into existence on the basis of which the suit has now been filed. It has been contested very much from the side of the Digambers and also from the, side of the State of Bihar that the Swetambers have got no scope and are estopped to challenge the factum of vesting at this stage in the suit when they had challenged the same before the Supreme Court earlier and then had withdrawn the same and did not proceed for further, although liberty was given to them to move in the High Court under Article 226 of the Constitution of India. On that score alone, it has been argued vehemently both from the side of the State of Bihar and also from the side of the Digambers that Swetambers have no right to challenge the factum of vesting in this suit or in the appeal. But I have already mentioned that this factum of vesting hinges very much on the agreement of 1965, on the basis of which suit has been filed by the Swetambers. So this factum of vesting either on law or on facts are required to be adjudicated in the suit and appeal in continuation for coming to a just decision about the validity of the agreement itself.

76. Let me first of all take point No. (iv) as formulated above regarding the vesting. Before going into the merit, whether vesting or acquisition was made within the purview of the Bihar Land Reforms Act, it is necessary first of all to consider whether Parasnath Hill comes within the definition of “estate” or not for the purpose of appreciation of the Act itself. The ‘estate’ under the Bihar Land Reforms Act has been defined and interpreted under Section 2(i) which runs as follows;–

” “estate” means any land and several fishery
and ferry rights included under one entry in any
of the general registers of revenue-paying lands
and revenue-free lands, prepared and maintained
under the law for the time being in force by the
Collector of a district, and includes revenue-free
land and several’fishery and ferry rights not
entered into any register and a share in or of an
estate.”

77. According to Mr. Bacchawat, there are two ingredients in this definition of the ‘estate’ namely it must be a land and it must be recorded in any of the general register maintained by the Collector under the land for the time being in force.

78. Touzi No. 20/1 related to Parasnath Hill and the subject-matter of vesting. As per the records it is a revenue paying estate and as such it may come within me second ingredient, but as per the observation made by the Apex Court under various rulings, the vesting is always in respect of such estates for maintaining agrarian policy to the effect that there must be a direct relation between the actual tiller and the State Government benefit of the intermediary, the whole purpose was to abolish 7,amindary and maintain direct relationship between tiller and Government and as such according to Mr. Bacchawat such vesting must relate to a land within the meaning of the estate for the purpose of agrarian reforms and hence the land must be agricultural one mainly.

79. Mr. Bacchawat further submits that Parasnath Hill has no nexus with the agriculture tenure holder rather the whole Hill is only a sacred place and a place of worship to the Jain community as a whole being managed and controlled by Swetambers since the time immemorial. According to Swetambers, Parasnath Hill was never used for agriculture or horticulture or for such other purpose hence Parasnath Hill does not come within the meaning of the estate as per the Bihar Land Reforms Act. Regarding agrarian policy of vesting, he has referred to judgments of the Hon’ble Supreme Court reported in AIR 1967 SC 661 and AIR 1967 SC 1110 (State of U.P. v. Raja Anand Brahma) and (Gulabbhai Vallabhbhai Desai v, Union of India), which mainly dealt with the policy and preamble of the Act. but what would vest under the Bihar Land Reforms Act has been decided by a judgment of this Court as reported in AIR 1957 Patna 226 (FB) (Sheo Narayan Choudhary v. State of Bihar) and also by a Full Bench decision of this Court in 1958 BLJR 559 : (AIR 1958 Patna 630) (Mahant Sukhdeo Das v. K.P. Tiwary). The primary object of the Bihar Land Reforms Act is to abolish the Zamindary by acquiring the interests of the proprietors, tenure-holders, under-tenure holders and trustees which have been compendiously described as intermediaries in the Act, in other words, the intervening interests of all persons below the paramount authority, namely, the State and above the tillers of the soil. It was further observed that not only the agricultural land or ancillary thereto, but all the intermediary interests within the land shall be vested. A Division Bench of this Court has further held in 1953 BLJR 84 : (AIR 1953 Patna 630) (Jwala Dutt Gobind Ram v. Union of India Railway Department) that all the properties held by trustees for religious and charitable purposes also vest under the Bihar Land Reforms Act to the, State, even the land held by the Defence of India does also come within the purview of the definition of the Estate. While the notifications are being issued under the Act, those lands held by Defence of India can never be kept out from the definition of the estate for the purpose of vesting. Moreover, mouza Parasnath Hill of Touzi No. 20/1 does not, (a) only consist of temples, shrines and Dharmshala in the limited area of the Hill which stands recorded under Khewat No. 7, Khata No. 84 measuring 0.86 acre rather it consists of other lands also such as, (b) forests and waste land covering thirteen thousand acres recorded under Khewat No. 1, (c) four Adivasi villages or hamlets, (d) Dakbungalow now belonging to P.W.D. recorded in Khewat No. 8 in the name of the Secretary of State for India, (e) Bharaghar (refreshment home), (f) tea plantations, residential quarters and servant quarters recorded in the name of the then owner under separate khewat, (g) raiyati agricultural lands of Adibasies, (h) lands belonging to Jharia Water Board, (i) roads and pathways belonging to State Government with rights of user of the Jains. These have been mentioned in various previous judgments. Thus the Parasnath Hill was never consisted of only temples and shrines. It had various types and categories of lands including agricultural land. Thus, it cannot be said that there being no agricultural land within the Parasnath Hill and as such no question of its vesting under the scope of Bihar Land Reforms Act. has got no legs to stand. Moreover, it has also come in evidence that after the vesting, Adibasies in the neighbouring villages of the forest land had prayed by application before the State Government for release of the agricultural lands in their favour and the Government had also done so by acceding, to their .prayers. When all lands including trust lands, lands of mosque or temples, hats, bazars are within the definition of estate as per the Act on various pronouncements of this Court as referred above and hence not outside the scope of vesting and in that sense, it cannot be said that Bihar Reforms Act is not applicable for the purpose of vesting in respect of Parasnath Hill.

80. Mr. Bacchawat again wanted to make a distinction between the definition of the Estate under the Bihar Land Reforms Act and that as defined under Article 31 A, Clause (2) of the Constitution of India and, according to him, as per judgment of the Apex Court in AIR 1967 SC 1110 (in paragraph 8 ) in case of variance between the definitions of ‘Local Law’ and that given under Clause (2) of Article 31A, the latter would prevail over the local law. Then the interpretations made by the Patna High Court and the Supreme Court regarding the definition of the estate under the Bihar Land Reforms Act covering all other lands in including the agricultural land have no bearing when the estate defined under the Constitution as mentioned above precludes Parasnath Mill within that purview. The definition contained in Clause (2) of Article 31A of the Constitution of India regarding the ‘estate’ runs as follows :–

” 31A(2) In this article –

(a) The expression ‘estate’ shall in relation to any local area, have the same meaning as that expression or its local equivalent has in the existing law relating to land tenure in force in that area and shall also include …. ”

81. According to Mr. Bacchawat, the land tenure as mentioned in the definition of Estate under Article 31A(2) foes not include the lands under the definition of tenure and tenure holders as per Sections 2(q) and 2(r) of the Bihar Land Reforms Act.’ I fail to appreciate such submissions of Mr. Bachhawat. The tenure holder as defined under Section 2(r) of the Bihar Land Reforms Act includes everything and even a person who holds such right over the land in trust. There is no variance in the defintion of the “estate” in the Bihar ‘Land Reforms Act and the expression ‘estate’ under the Constitution of India for the purpose of yesting, hence I find that Parasnalh Hill comes within the definition of ‘estate’ because of its physical features as mentioned above, even if it does not hold and include agriculture land only for the purpsoe of vesting under the Act. Hence this submission of Mr. Bacchawat that Parasnath Hill under Touzi No. 20/1 is outside the scope of vesting under the ‘definition of ‘estate’ under the Act has got no force.

82. The facutal aspect is required to be reiterated regarding Parasnalh Hill for the purpose of vesting.

It is the admitted fact that Raja of Palganj was having ownership over the land/estate. The Parasnath Hill was formerly part of Touzi No. 20. The said Touzi No. 20 was situated at Mouza Parasnath including several other villages. The estate/Gaddi of Palganj came into existence as History goes around 1866. As regards shrines Raja was entitled to the offerings and in lieu thereof he was supposed to protect the shrines and pilgrims. As regards forest, Raja exercised all rights and was in possession thereof. In the year 1872 Raja of Palganj transferred his right of offerings received at Parasnath Hill temple to Jain Swetambars Society by virtue of one Ekrarnama and the said Ekranama was again being ratified in the year 1978 and it was ultimately setteled. In that, in lieu of offerings, the Society would pay Rs. 1500/- per annum to the Raja of Palganj and the Society was empowered and militarised to collect the offerings from the pilgrims. In the yer 1876 Raja gave 2000 acres of forest land to Mr. Boodain to set up a Piggery due to which Jain Swetambar Society being aggreived and apprehensive of loss of sanctity of the Hill filed a suit before the High Court of fort William of Calcutta which was known as Piggery case as described earlier. In the said judgment, the High Court of Calcutta held that Jains had failed to establish their title over the entire Hill, but as per their belief and faith, the whole Hill was sacred to the Jains.

83. In the year 1910, Cadestral Survey look place under the State of Biharand records of right were prepared. According to Cadestral Survey, the record of rights of Mouza Parasnath was prepared in favour of nine Khewatdars. It is the admitted case that at the time of Cadestral Survey, Palganj estate was an encumbered estate and as such Khewat No. 1, which is marked as Ext. land 1/1 was prepared in the, name of Manager, Encumpered Estate on behalf of B. Ranbahadur Singh. The name of the interested person was recorded as Maharaja Bahadur Singh son of Rai Chandra Singh Bahadur, resident of Baluchama, district Mursidabad as General Manger of Swetambar Jain Society in respect of 0.86 decimals. In the Remarks column, it has been mentioned in the following number :

“Under a registered Ekrarnama dated 21-9-

1978 executed by B. Parasnath Singh in favour of
Bahadur Harakchand Golmacha, Manager of
Swetambar Jain Society inrespect of the offerings
given in the temples mnoted in this Khewat the Mokrari annual
rent of Rs. 1500/- is payable to the priprietor
noted in Khewat No. 1.”

84. When such Survey record was prepared the Main Swetamhar Society challenged the feaid record of rights in Title Suit No. 288 of 1912 and the matter ultimately came before the Privy Council and the Privy Council in its judgment imported in AIR 1926 PC 13 (Maharaj Bahadur Singh v. Seth Hukumchand) sustianed the entry made in the record of rights with some modification that out of 25 Tonks, both Swetambars and Digambars have unrestricted right of worship besides tonks of Gautam Swamy and Digambar shall have restricted right over four tonks.

85. From the above record of rights, it could be found that the estate or the land remained with Palganj Gaddi and only possessory or management right regarding offering in the temple and worship remained with Jains which is clarified from the underlined portion of the remarks coulumn as mentioned above and the said portion had been more clarified by the judgment of the Privy Council.

86. In the year 1918 the Estate or whatever right Raja of Palganj was having was purchased by the Swetambars through the Firm of Seth Anandji Kalyanji. The document of transfer is marked as Ext. 7 in the case. It may be mentioned her that there was an attempt from the side of Digambar Jains to purchase the property of Raja of Palganj for which they had also filed a suit for Specific Performance which was ultimately dismissed. From the document of transfer (Ext. 7) it is apparent that no area was specified and it is stated that the area was mentioned as in a map attached to the document but that map is not found in the record either it has been lost or being suppressed, so it cannot be said what area had been purchased by the Seth Anandjee Kalyanji from the Raja of Palganj.

87. It has been stated by Mr. Bachhawat in respect of this document that whatever interest of Palganj was there, the same has been tranferred to Seth Anandjee Kaiyanjee.

It should also be mentioned here that Seth Kalyanji Anandji was mentioned as a Firm and question of trust perhaps was not in the mind at the time.

88. Regarding the forest land and agricultural land as mentioned in Khewat No. 1 and under Touzi N’o. 20/1, measuring only 13000 acres of lands, it was after purchase came in the name of Nagar Seth Kastur Bhai of Ahmedabad. In 1948, Bihar Private Forest Act was enacted by the Government of India with a view to take over private forest and waste land thereof for protection of forests, Nagar Seth Kastur Bhai of Ahmadabad, who claimed to be owner of land of Khewat No. 1 by virtue of above purchase as mentioned in Ext. 7 raised objection that the private forests of Parasnath Hill would be outside the scope of the provisions of the Act and this led to a discussion between the Seth Anandji Kalyanji and the State of Bihar which ultimately resulted in implementation of Section 38 of the Act for assiging the management of forest. An agreement came up on 17-11-1952 between Seth Anandji Kalyanji on one hand and the State of Bihar on the other hand.

89. The said land comprised in Khewat No. 1 was declared as Reserved forest under Section 4 of the Indian Forest Act, 1957 -and Seth Anandji Kalyanji agreed that the said forest be managed by the State of Bihar under the provisions of Section 38(1) of the Indian Forest Act. The said agreement is marked as Ext. 9. Thus, before the Bihar Land Reforms Act came into existence the forest and agricultural land had already gone into the hands of the Slate of Bihar under the agreement (Ext. 9). The Forest Department of the Government of Bihar had started management of the lands and a working plan was formulated. According to that plan, Seth Anandji Kalyanji was to assist in the management of the forest, bu’ for all practical purpose, possession, control and management of the forest merged with the forest department of the Government of Bihar.

90. Now, comes the Bihar Land Reforms Act, 1950. The preambleof the Act is in following wordings:

“An Act to provide for the transference to the State of the interest of proprietors and tenure holders in land of the mortgagees and lessees of such interests including interest in trees, forest, fisheries, Jalkars. ferries. Hats, Bazars, mines and minerals and to provide for the Constitution of a Land Commission for the State of Bihar with powers to advise the Stale Government on the agrarian policy to be pursued by the State Government consequent upon such transference and other matters connected there with.

Whereas it is expedient to provide for the transference to the State of the interests of proprietors and t enure holders in land and of the mortgagees and lessee of such interests including interest in trees, forest, fisheries, Jalkars, ferries or Hats. Bazars, mines and minerals and to provide for the constitution of a land commission for the State of Bihar with powers to advise the State Government on the agrarian policy to be pursued by the State Government consequent upon such transference and for other matters connected therewith.”

91. On the wordings of agrarian policy as mentioned above Mr. Bacchawat appearing on behalf of Swetambar on the basis of various Ruling submitted that the Act can only be applicable to the agricultural land and not others and the Parasnath Hill being an institution for religious purposes may be having some ancillary lands of forest and agricultural, cannot be vested. This point would be taken up afterwards.

92. Pursuant to the said Act, Notification dated 2-5-1953 (Ext. K/1) was issued by the Government of Bihar under Section 3(1) of the aforesaid Act regarding Touzi No. 20/1 and it vested in the State. Another proclamation under Section 3(0) under Section 3(a) were also issued subsequently in the extinction anil vesting of all intermediaries’ interest in the district of Hazaribagh and certain other districts. According to State of Bihar, vesting was followed by taking over possession of the estate under Tauzi No. 20/ 1 and the process of vesting concluded.

93. The first Notification under Section 3 was issued on 2-5-1953, Which, is markd as Ext. K-1. The wordirngs f the Notification are as follows :

” Ext. K/l.

      The Bihar Gazette (Extra) July 13. 1953.

      The 2nd May, 1953.

No. 955-LR/ZANS In
exercise of the powers conferred by sub-section ( 1 ) of Section 3 of the
Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950) the Governor of Bihar is
pleased to declare that the Estate described in the Schedule hereto annexed
belonging to the proprietor named in the schedule have with the effect from
the date of the publication of this Notification in the Bihar Gazette, passed
to and become vested in the State, under the provisions of this Act.

Schedule

Name of Proprietor
Name of District
Name of the Estate
Tauzi No. of the Estate
Name of village where the Touzi comprises more
than one villages and the proprietor holds a share in some of the villages in
the Tauzi.

The share of Proprietor in the Tauzi

1.

2.

3.

4.

5.

6.

Nagar Seth Kaslur Bhai Mani
Bhai, in his individual capacity as representative of the whole Swetambary Murti
Pujak community of India. President of the Firm of Seth Anandji Kalyanji of Ahmadabad
in Bombay.

Hazaribagh
Palganj
20/1
Parasnath hill
16 acre

 
 

 
By order of the Governor of Bihar

 
K. K. Mitra

 
Additional Secretary to Government.”

94. On the basis of the said Notification, the respondent State of Bihar called upqn the President of the Firm of Seth Anandji Kalyanji of Ahmedabad to submit the return under the provisions of the said Act . According to the State, the said firm of Seth Anandji Kalyanji filed theirreturns and for the purpose of ascertainment of compensation, a proceeding was initiated being Compensation Case No. 137 of 1953-54. Certificate-copy of the entire order sheet of the Compensation case No. 137 of 953-54 had been filed by Digamabars before the Court below and the was kept in record, although not beinp marked as Exhibit. as the learned Court below was in hurry to dispose of the suits because of the observation made by this Court in M.J.C. No. 179 of 1986(R), to the effect that the suits being very old. should be disposed of expeditiously without admitting any further evidence from either side. But order sheet of a court proceeding is definitely a public document and could have been looked into or marked Exhibit as submitted from the side of the respondents, namely. State of Bihar and the Digambars. There is a petition before this Court for marking Exhibit of order sheets of compensation case by allowing additional evidence, which has been vehemently opposed by filing objection from the side of
the Swetambars.

95. Practically, in my view, there is no scope of reopening the matter by giving scope for additional evidence but when compensation case was there, this fact may be taken into consideration that at least there was a compensation proceedings and a return had been filed from the side of the intermediaries after the vesting was done.

Without going into the details of that ordcrshcet, this fact can safely be taken into account.

96. The return was filed by the Swetambars on 17-4-1954 tor the purpose of settlement of compensation relating to Parasnath Hill but the return was filed not by the Swctambar Society but by Seth Anandji Kalyanji firm and Notification was also issued against the firm and notices were also followed consequent upon it.

97. Then a further proclamation dated 21-9-1954 was issued in exercise of a power conferred under Section 3(h)(i) of the Bihar Land Reforms Act. The said proclamation has been marked as Ext. K-1/1. The wordings of the proclamation and contents of it is as under:

‘The 21st Sept. 1954 No. 5404/E-VII-1022/ 54-LR- in pursuance of the provisions to Section 3(B)(1) of the Bihar Land Reforms Act, 1950 as inserted by the Land Reforms (Amendment) Act, 1953 does hereby proclaim for information to all concerned that the State Government intended to take over all or after expiration of the period of three months from the date of publication of this proclamation of intermediaries interest in the district noted hcreinbetow :

Name of districts– (1) Darbhanga (2) Gaya (3) Monger, (4) Hazaribagh, (5) Purnia, (6) Saharsa, (7) Champaran. (8) Palamau.”

98. Admittedly, Parasnath Hill was included in the then district of Hazaribagh and it was the Government intention to enforce the said Act in respect of district/districts as mentioned in the proclamation. The said proclamation was followed by another Notification dated 20-1-1955 issued under Section 3(A)(2) of Bihar Land Reforms Act and marked as Ext. A/2 on behalf of the State. This Notification was published in the Newspaper as required under the Law and the Notification has al so been referred to i n a judgment of this Court as reported in 1961 BLJR 446 (State of Bihar v. Raja Bahadur Kamakshya Narain Singh).

99. With reference to that judgment, it is the contention of the State and the Digambars that the State of Bihar became the absolute owner on vesting of entire intermediary interest in the Parasnath hills on issuance of the Notification under Section 3 of the Act followed by proclamation under Section 3(b) and Notification under Section 3(a). According to the State, although the Government of Bihar after vesting became the absolute owner yet the Swetambary Jain Murti Pujak Community started making representations and approached the Government that the Management, control and possession of the Parasnath Hills should remain with them, but those representations were pending for some lime before State Government but ultimately these were rejected. It is also the case of the State that to avoid any conclusion and doubt with regard to the absolute right and exclusive possession of the State Government some more steps were taken for confirmation of its possession. A proceeding for mutation was started at the initiation of the State of Bihar being Mutation case No. 107 of 1 954-55 in place of outgoing intermediary. Nagarseth Kaslur Bhai Mani Bhai, President of the Firm Seth Anandji Kalyanji. By order dated 20-7-1954 in the said mutation case, the name of the State of Bihar was allowed to be mutated and then confirmed vide order dated 21-11-1954. The mutation proceedings and its ordersheets have been proved and marked as Ext. J-1/4.

100. Ext. M series further reveals that such mutation was allowed after issuance of General notice on calling objections. After such mutation the name of the State of Bihar was entered in Register-A as per provisions of Land Registration Act, 1876, Ext. J-1/5 is the copy of the Register where the name of the State of Bihar was entered in place of outgoing intermediary. On the basis of the orders passed in the Mutation proceeding, a decree for registration was also prepared on the application made by the State of Bihar and an endorsement to that effect was made as Exhibited in Ext. J-l/6. Ext. J-1/5 reveals that the State of Bihar was shown as proprietor of Revenue paying Estate/Tauzi No. 20/1. According to the State of Bihar, after such vesting, Parasnath hills as a whole came into the control and management, of the Government of Bihar to the knowledge of all concerned and the firm of Anandji Kalyanji was fully aware of the vesting and as such they started negotiation with State of Bihar for retaining their possession. In April, 1964, the Deputy Secretary to the Government of Bihar, Revenue Department wrote a letter dated 1-4-1964 (Ext. C/1) to the Deputy Commissioner, Hazaribagh directing him to take khas possession of the Parasnath Hills forest and a telegram was also issued on the same day, which was marked as Ext. C-1/10, although under the Bihar Private Forest Act. already the forest within the Parasnath Hills had come into possession of the State of Bihar before the Notification under the Bihar Land Reforms Act.

101. In pursuance of the Government order and the telegram, the possession of the foresl was again-been taken over on 2nd April, 1964 in presence of the Manager of the Anandji Kalyanji after observing all formalities relating to taking over of possession including by beats of drum and the fact was communicated by the Deputy Collector, Incharge, Land Reforms Deptt. Giridh to the Additional Collector, Hazaribagh vide their letter No. 1210 dated 3-4-1974 as Exhibited being Ext. C-1/4. The said taking over of possession was also conveyed to the Revenue Secretary, Chief Conservator of Forests and Collector, Hazaribagh. Telegraphically, it was conveyed on 2nd April. 1964 which was marked as Ext. C-1/6, Moreover, Chief Conservator of Forest, Bihar sanctioned four additional forest officers and other staffs for the management of the Parasnath Hills and the expenses were made debitable to the revenue of the State of Bihar as would be apparent from Ext. C-1/7.

102. As per Ext. C-1/8 dated 9-4-1964. the Chief Conservator of Forest intimated the Revenue Department of the Government of Bihar that the Deputy Commissioner, Hazaribagh has made over possession/ management of the Parasnath Hills to the Divisional Forest Officer, Giridih in 6-4-1964. It further appears that after the vesting, several applications were made by Raiyats requesting to exclude their lands from the forest area and by Ext. R. series, it has been shown from the State of Bihar that some of the Raiyati land had been released in favour of the raiyats also as per the provisions of the B.L.R. Act.

103. Regarding taking over of possession by the State of Bihar, learned court below in his impugned judgment has termed those to be only a paper transaction and actual physical possession had not been taken over but it was held that Parasnath Hills had been vested to the State of Bihar,

104. Mr, Bacchawat for and on behalf of the Plaintiff Swetambars submitted that although there were Notifications under Section 3 of the B.L.R. Act, but those were never been implemented and the provisions of the Act had not been complied with in its proper perspective, inasmuch as required under the law, the Notification had not been published in two Newpapers and that the service of notice was on a dead person.

105. In reply to it, it has been submitted that the Notifications were issued in the name of Firm as it stood at that time and as such the question of service of notice on a dead person does notarise. The President of the Firm might be dead but existence of the firm was there and such service of notice on the firm was a valid service.

106. In reply to the contention of the State of Bihar, with regard to Legislative competency of the State regarding enactment of the Bihar Land Reforms Act which was challenged before the Apex Court and the vires was held in he valid as reported inAIR I 961 SC 1649 (State of Bihar v. Rameshwar Pratap Narayan Singh). It is the submission of Mr. Bachhawat that even if the Legislative competency is there of the Stale Legislature for the enactment of Bihar Land Reforms Act and that the vires of the Act was validated by the Apex Court even then also Notification made under the Act can definitely be challenged regarding its validity or otherwise.

107. Definitely, this submission of Mr. Bacchawat has got force inasmuch as even if the Act is valid then also implementation of its different provisions can be challenged. But how far such challenge can be accepted is the question of fact and law. In the suit, the plaintiffs Swetambars have never challenged such vesting rather via media admitted the same when they went for an agreement with the State of Bihar regarding retention of their right of management of the Hill. Even if such challenge is accepted, then also, there remained no force in it. By amendment of Bihar Land Reforms Act, the provisions of publication in two newspapers regarding the Notification have already been deleted. Moreover, the effect of Notification and vesting of the lands to the State of Bihar had already been challenged by the Swetambars in a writ petition before the Supreme Court but the same had been withdrawn afterwards with liberty to challenge the same under Article 226 of the Constitution of India before High Court of Judicature at Patna, but no such writ petition was ever filed. In that writ petition before the Supreme Court in Para 21, the Swetambars had already admitted the vesting of intermediary interest in Tauzi No. 20/1 in the Slate of Bihar.

For belter appreciation, para 21 of the writ application may be reproduced, as the same has been marked as Exhibit in this case :

“On next day i.e., 2nd April, 1964 the Land Reforms, Deputy Collector Giridih. Hazaribagh issued a public notice proclaiming that the Parasnath Hill and forest had come in to possession of the respondent No. 1, the State of Bihar under the Bihar Land Reforms Act, 1950 (Bihar Act XXX of 1950). The respondent No. 3 caused a copy of the said public notice to be affixed on the entries of the Dharamshala of the Swetambar Murti Pujak Jain Community situated in village Ishri Bazar, District Hazaribag. The said village is situated at distance of about four miles from the Parasnath Hill.”

108. Thus as back as in the year 1964, the plaintiff Swetambars some of whom were directly parties in the said writ petition before the Supreme Court had admitted service of notice/proclamation under Section 3(2) of the Act. Now, at a belated stage they cannot claim that the notices have not been served or served on a dead person.

109. I have already mentioned that till that date there was no question of Trust and the properties were in the name of the Firm of Scth Anandji Kalyanji and as such service of notice on the firm on the Dharamshala of the firm is definitely a proper service.

110. Regarding non publication of Notification in two Newspapers, it had already been taken away by the Amendment Act, 1954 and afterwards under Section 2 of the Bihar Land Reforms (Validation) Act, 1969, all actions taken under the parent Act had been validated without giving scope of challenging the same. It provided, inter alia, that notwithstanding anything contained in Section 3, 3(a), 3(d) of the Bihar Land Reforms Act, 1950, all Notification issued, actions taken or things done in respect of the vesting of the estate or tenure in the State during the period commencing from 25-9-1950 and ending with the commencement of the said Amendment Act shall always be deemed to have been validily issued and shall not be called for question solely on the ground of non compliance or irregularity in compliance of the provisions of the Act.

111. According to Mr. Bacchawat, as per Section 4(0 of the Act, the Collector shall be deemed to have been taken the charge of estate or tenure which had been vested, but such taking of charge has not been proved, all actions on-paper transaction regarding taking of charge were made long after and as such the Notification had not been implemented in its proper perspective. His further contention is that deeming clause in the Amendment Act, 1954 cannot have any retrospective effect. Under Section 4(g) of the Act, if no actual charge is there then the Collector is to proceed to take actual charge and attempt was made from the side of the State to show that actual charges were taken but the learned court below had already held that those were only paper transactions. I am not convinced with such submissions of Mr. Bacchawat and the finding of the learned court below that all were paper transactions. Even if it is held that the Telegram issued etc. were in great haste but by that haste and hurriedness alone it cannot be said that those are only paper transactions.

112. From the very beginning after the issuance of Notification, it appears that the State of Bihar was always aware of its absolute right over the property and as such started mutation proceedings and their names have been registered as required under the Law and Register A was also opened in the name of the State of Bihar. It is not a matter of taking of charge or taking over of possession by one individual from another individual. A vast area was to be taken over possession by a State Government from its intermediaries and definitely papers and documents would show how such possession was being effected and implemented. Now, after two decades such challenge that too without making any specific plea to that effect in the plaint of not taking over of charge by the Slate Government on implementation of the Notification under the Bihar Land Reforms Act have got no force and no importance should be given to such challenge in a First Appeal, when the whole suit of the plaintiff Swetambars are based on an agreement of 1965, which agreement clearly reveals of vesting of the Parasnath Hill on the Slate Government.

It is true that Apex Court had held in AIR 1968 SC 90 (Giriwar Prasad Narain Singh v. Diikhu Lal Das) that the directions given under Section 2 of the Bihar Land Reforms Act are not directory but mandatory, but non publication of Notification in two daily Newspapers alone even if mandatory in nature cannot take away the factum of vesting, when other materials proved in the case go to show that vesting was completed and after two decades, there is no seope of challenging the vesting and practically the vesting has not been challenged in the suit rather taking the factum of vesting, the plaintiff-Swetambars and also Digambars had entered into agreement with the State of Bihar. In that judgment of Supreme Court, the Validation Act of 1969 had not been considered and after the Validation Act came into force, this, question of non publication of Notification in two newspapers is redundant.

113. The next point has been taken by the plaintiffs that the Parasnath Hill being itself a religious Institution, the same cannot be taken over of possession as per Section 4(f) of the Bihar Land Reforms Act itself as a religious Institution and a Trust property is outside the scope of vesting.

114. Let us take the first question regarding trust properly. It is for the first lime in this suit and at time of filing of the writ petition before the Supreme Court, Swetambar Murti Pujak Community taking the guard/garb of a trust being created in the year 1912 as Seth Anandji Kalyanji Trust. The basis of such trust as attempted to be proved from the side of the plaintiff, is a Resolution of meeting held in the year 1912 as Exhibited in Ext, 6. On going through that document, it appears that in a meeting held by some members of the Swctambary Murti Pujak Jain Community took a Resolution in the year 1912 to purchase the property for commercial purposes. That document does not disclose anywhere that any trust known as Anandji Kalyanji Trust was in existence prior to it. If Ext. 6 is read in between the lines and as a whole in its right perspective then also it belies the plaintiffs’ version of existence of trust before the filing of this suit and that the petition before the Supreme Court.

115. If in 1912 there was a trust as claimed from the side of the plaintiffs then why the Trust had not purchased the interest of Raja of Palganj in the year 1918? There is no answer to it as the document of 1918 nowhere discloses that the property was purchased from the Gaddi of Palganj in the name of Seth Anandji Kalyanji Trust.

116. Another document was attempted to be proved for disclosing/revealing the existence of trust, which is nothing but a certificate of Registration, which has been marked as Ext. 10. This document is of the year 1968 only. That certificate discloses that the trust was registered in the year 1955 but no Registration Certificate of 1955 has been produced. If a trust is created and registered then the same came intoexistcnce only in the year 1955. Thus even if it is taken for granted, that a trust was created in 1955, the said trust cannot have any effect in Parasnath Hill under Tauzi No. 20/1 which had earlier been vested in the State of Bihar under Bihar Land Reforms Act and, therefore, the creation of the so-called trust cannot have any legal effect touching the property of Parasnath Hill under Tauzi No. 20/1.

117. In the Cadestral Survey record of rights prepared in the year 1910, the property was shown as Encumbered Estate and whereever management and control regarding the Parasnath Hill or any part of it had been referred it was mentioned as firm of Seth Anandji Kalyanji and in 1918 Seth Kastur Bhai, President of the firm of Seth Anandji Kalyanji had purchased the proprietory interest of the Parasnath Hill from the Raja of Palganj. Nowhere any evidence is there except some verbal statements made by some of the witnesses for and on behalf of the plaintiffs regarding the existence of trust since 1912 but existence of that trust could not be proved by any piece of paper at the time of purchase or prior to 1946 or on the date of vesting in the year 1953.

That the trust had been a new coinage from the side of the plaintiff-Swetambaries can also be found out from the fact that in the year 1920, Digambars filed Title Suit No. 226/1920 (Ext. 13/B) against Swetambars for declaration of certain rights. In the said suit, Nagar Kastur Bhai filed a written statement (Ext. 14/U) claiming the property but nowhere it was mentioned that the property was held by any Trust or regarding the existence of any trust. Thus in the year 1920, Swetambars were not sued in the capacity of trust but it was in the individual capacity nor the Swetambars took any plea of trust in the written statement. Hence existence of trust since 1912 is only a myth. For the first time Swetambars are coming with the plea of trust only to get some protection for the purpose of getting away vesting as per Bihar Land Reforms Act. As 1 have mentioned curlier this coinage of trust was artistically put to have a benefit of retaining the properly under Section 4(f) of the Act. Mr. Bacchawat’s submission is that under Section 4(f) of the B.L.R. Act. 1950, even if it is contended as per the Stale’s submission that Parasnath Hill has been vested, then also, creator is debarred from taking charge of the Hill, being a trust properly.

118. Assuming this fact to be correct then also Parasnath Hill as a whole cannot be said to be a trust properly as mentioned above, but admitting the same to be a trust property as claimed by the plaintiff-Swetambars then also the entire estate of Parasnath Hill cannot be safeguarded from purview/mischief of the Bihar Land Reforms Act.

119. In this connection, a Division Bench judgment of this Court may be referred to being 1953 BUR 84 : (AIR 1953 Palna 367) (Jwala Dull Gobind Ram v. Union of India Railway Deparimeni) wherein this Court held that the Bihar Land Reforms Act, 1950 applies to all properties including the properties held by the trustees for religious and charitable purposes too. This matter was again been taken up by a Full Bench of this Court as reported in 1958 BLJR 559: (AIR 1958 Patna 630) (Mahanth Sukhdeo Das v. Kashi Prasad Tewari) and held that although the primary object of the Act is to abolish the Zamindary by acquiring the interest of the proprietor, but by acquisition of Zamindary, all the interest of the proprietor, tenure holder, under-tenure holder and trustees are also being acquired i. e. of the intervening interest of all persons below the paramount authority i. e. the State, have been acquired for the purpose of giving back the land to the actual tillers of the soil. The controversial interest between the proprietors inter se are not to be decided while acquisition is to lake place. The Legislature’s main object was to facilitate the acquisition and possession of the estate of the intermediaries to be acquired by the Stale. Its main object was the benefit of the State and as such the benefit of the general public.

120. Thus in that judgment of the Full Bench even the lands heldby the trustees as intermediary would vest in the State of Bihar. Supreme Court in another case has stopped further as reported in 1961 BLJR 169 : (AIR 1961 SC 189) (Thakur Manmohan Deo v. State of Bihar), wherein Ghatwali tenure held by the Defence of India, which was the Armed Force of Union of India, were said to be vested, pursuant to the Noti fication issued under Section 3 of the Act. Thus, even if it is conceded that the plaintiff-Swetambars forming a trust were holding the property in Tauzi No. 20/1 (although from the foregoing discussions, it is decided that no existence of trust was there before the vesting and notification was issued by the State) then also the interest of the trustees as intermediary would vest in the State of Bihar in pursuance to the Notification under Section 3 of the Act.

121. The next question is that the whole of the Parasnath Hill isa religious Institution and having temples/shrines and hence the same cannot be taken charge of by the Collector as per Section 4(f) of the Act. It has been streneously argued by Mr. Bacchawat that long back, it has been decided by the Privy Council and the Calcutta High Court that whole of the Parasnath Hill is in the belief of the Jain Community to be a religious Institution and this fact has been admitted by the Digambars also in their plaint and also in previous litigations and now it does not lie in the mouth of Digambars that the Parasnath Hill is not a religious Institution and the same can be vested to the Slate of Bihar.

122. Mr. R.K. Jain has submitted that it is true that Jain Community believes that the whole of Parasnaih Hill is a religious Institulion and every particles of it is in the faith of the Jain community to be attached to the religious sanctity. But, as 1 have stated already that the observation in the earlier su.it was that it is the belief amongst the Jain community that the whole of the Parasnath Hill is a religious Institution. By that faith alone to a community cannot debar the State not to consider it as a religious Institution as a whole. Only the top of the Hill with half a mile radius consists of tonks and shrines. Other areas of Parasnath hills have got forests, tribal villages and many other things as had been discussed earlier. So only because there is a belief/faith amongst the Jain community that Parasnath Hill is a religious Institulion cannot debar the State Government for its application of the Bihar Land Reforms Act for the purpose of vesting. Even the places of worship (Special Provision Act, 1991) cannot be made applicable as per Section 3 of the Act because by faith alone of a community cannot be considered a vast property with various ingredients to be a religious Institution as a whole, otherwise anomaly would arise in all respect.

123. For example, lei us take the case of “Kamakhya temple’ in Assam. There is belief amongst the devotees that the whole of the Hill of Kamakhya temple situated at the top of the Hill is a religious Institution and on ancient days people used to go on foot by making Pradakshina but by the change of the Society and the go of the day, now only the Hill top is considered to be the religious Institution where the temples really exist and other parts of the Hill are being used for commercial purposes by individual by settlement from State and some parts by State itself.

If we take the case of ‘Shankar Bhagwan in Deoghar’, the same analogy would apply. At the month of Shravan people/devotees go to the temple after taking the holy water of Ganges from Sultanganj and go on foot to the temple to pour holy water on Lord Shiva inside the temple and making Sasthang Pranamas from a vast distance around the temple, but by that alone those areas covering Sultanganj or the areas where Sasthang Pranamas are being made, are never being considered by the Hindus as the holy Institution, rather only the temple of Shankar Bhagwan remains the holy Institution.

124. Various parts of Parasnath Hill were used on ancient times also for commercial purposes. There were Dak Bangalow, Sanilorium, Bazars, forests etc. and forests were being used by the Swetambars also forcommerieal purposes at some time as could be understood at the time of hearing argument of the case. Thus, only for some belief or faith cannot make the whole of the Parasnath Hill as a religious Institution and in that view of the matter, I am totally in agreement with the learned Court below that half a mile radius area from the top of the Parasnath Hill is only a religious Institution and the same, even if taken over on vesting could not be taken charge by the Collector and the same should remain as a holy Institution for the Jains. It can also be referred to in this context that the Mill was not held to he a Debutter properly as stated curlier.

125. The next point urged for and on behalf of the plaintiff-Swetambaries is that the vesting has become sterile as per doctrine of desuetude. It is the contention of Mr. Bacchawat for and on behalf of them that the Bihar Land Reforms Act has neven been enforced during the period of more than 40 years by now and has become sterile and no longer enforceable as propounded by the doctrine of desuetude as observed by the Apex Court in the Municipal Corporation of City of Pune v. Bharat Forged Company Ltd., (1995) 3 SCC 434.

126. In the plaint of Title Suit No. 10 of 1967 it was alleged that the impugned Notification had become sterile as the said Notification was not used for all practical purposes for last 45 years. According to Mr. Bacchawat, although the Bihar Land Reforms Act came into force on 25-9-1950 but Notification was issued only on 2-6-1953, and subsequent second Notification on 26-1-1955 but although those Notifications were made after 3 to 5 years of promulgation of the Act yet those Notifications remained only a paper transaction as the learned Court below had rightly held that the matter of taking over possession by the State Government through the Deputy Commissioner of Hazaribagh was only a paper transaction and in that context legally those Notifications had never been effected or implemented and the Swetambary community of Seth Anandji Kalyanji trust remained in management and control of the whole of the Hill as contained in Tauzi No. 20/1.

His further contention is that keeping this matter in view. State Government became aggreable to come to an agreement with the Swetambaries on 5-2-1965. According to him, although the State Government was to develop the part of the Hill but the State Government was doing as an agent of the Swetambaries and/not as of its own right by the State Government and according to him the same position is remaining till today,

127. On the other hand, it is the submission of Mr. Eqbal. appearing on behalf of the Slate Government that Tauzi No. 20/1 was notified to be vested in ihc Slate Government under the Bihar Land Reforms Act and all formalities required for the purpose had been done by the State Government and even the mutation was made in the name of the State Government and their names had been registered. Now, this question docs not arise regarding the sterility of the Bihar Land Reforms Act particularly in respect of Tauzi No. 20/1 regarding Parasnath Hill.

128. It has already been stated and held by this Court as mentioned above that not only the Notification was made but all formalities required for the purpose of taking over possession had been taken by the State Government and knowing fully well about this vesting the plaintiffs of title Suit No. 10 of 67 or through their agents had challenged the vesting before the Apex Court by filing a writ petition but with the plea of filing fresh writ petition before the High Court (they had categorically admitted about vesting of Tauzi No. 20/1 to the State Government in the writ as mentioned before) had withdrawn the same but afterwards no writ petition was filed challenging the vesting and after the-Validation Act even if there were any irregularities committed in the process of vesting, those had already been validated and the vesting remained complete as a whole regarding the Parasnath hill, so the question of application of doctrine of desuetude is not applicable in the present case.

129. In the case reported, i! was found from the circumstances that the Notification of the Municipal Corporation had never been acted upon and the formalities required for the promulgation of the Act had never been taken place and the Notification remained or the Act remained in paper only without being implemented in the locality and hence by application of principle of desuetude it was held that the said Act remained dormant without having proper implementation. But, in the present case, the said principle can have no application as it has already been held that the State Government did not sit over by Legislation of Bihar Land Reforms Act alone but as per provision of the Act, Notifications were made and after the Notification, further necessary formalities regarding taking over possession and registration of the name of the Slate Government in the Revenue records had been taken.

130. The Swetambary community or the Jain community as a whole might remain in control over the temples or the offerings given to the temple by devotees, but that alone does not show that Jain community as a whole or Swetambaries in particular reamined in Management and control of the whole of the Hill even after the Notification was made and implemented under the Bihar Land Reforms Act, so this submission of Mr. Bacchawat has got no force. Moreover, there is admission from the side of the Swetambaries not only in the writ petition but also afterwards when they were negotiating with the State Government for taking settlement of the portion or of the whole area, as would be found in the minutes of the Resolution as Exhibited 18 and 19 in the suit. There were clear admissions from the side of Swetambaries regarding the vesting of the Parasnath Hill as a whole in the State Government. Now, in the suit they cannot claim for the first time that there was no vesting more so when the suit has been filed on the basis of the agreement of 1965 which had been the result of negotiation as per Exts. 18 and 19. Even that vesting has not been challenged in the plaint in so many words rather admitting the vesting they had come into agreement with the State Government for their management and control regarding the shrines or a half a mile area.

131. In Clause-2 of the agreement, it has been specifically mentioned regarding the vesting under the Notification dated 2-5-1953. of the Parasnath Hill as a whole save and except the temples and Dharmshales on the Hill top. Clause-2 of the agreement, which has been marked as Ext.9/A makes the following admission on the part of both the parties i. e. the State Government and the Swetambaries in the following manner :

“Clause-2

The first party hereby declares that the temples, Dharmshalas etc. on the Hill are not covered by Notification dated 2nd May, 1953, and that the second party shall retain full control of their temples and shrines, hills and religious establishments and perform their puja and worship as per without any let or hindrance from the first party.”

132. Without going into the controversy regarding the validity of the agreement which would be dealt later on, there remains an admission that by the Notification the Parasnath Hill had been vested with the State Government but the temples, shrines and Dharmshalas might not have been taken over possession as contemplated under the proviso of Section 4(f) of the Bihar Land Reforms Act, but the vesting can in no way be challenged from the side of the Swetambaries at this juncture and even if challenged as discussed above vesting became complete in respect of whole of the Parasnath hill, although Collector might not have taken control or charge of the shrines and Dharamshalas on the top of the hill, but the every particle of the Parasnath Hill as contained in Touzi No. 20/1 had been vested under the Bihar Land Reforms Act.

133. Learned Court below’s finding that half . a mile area over the top of the Hill was not taken over possession is also not correct. Possession or charge had not been taken only in respect of the temples. Dharmshalas and religious Institutions so that those might not have hurt the faith and belief of the Jain Community and the same remained in control of the Jain Community as a whole and not to any particular sect because the whole scenario regarding the management and control of the Swetambarics alone had been changed after the Independence and promulgation of Bihar Land Reforms Act. By the Notification and implementation of it, the State Government became the owner for all practical purposes on vesting of the Hill as a whole. A compensation proceedings had also been initiated as required under the Act against M/s. Anandji Kalyanji, who by the sale deeds of 1918 had purchased the interest of Raja of Palganj.

134. Regarding non-taking over of possession under Section 4(g) of the B.L.R. Act had already been dealt by me in my earlier discussions and 1 do not want to reiterate the same.

Thus from all discussions as made above, I hold that the Parasnath Hill as a whole under Touzi No. 20/1 had been vested in the State of Bihar and all intermediaries including the so-called management and control of the Swetambaries or the Jain community over any part of it had been abolished from the date of vesting. However, learned Court below had rightly held that the top of the Hill where the Tonks and Shrines are situated including half a mile radius area were not taken over actual physical possession by the Collector as per Section 4(g) of the B. L. R. Act. because of religious sentiment of the Jain Community and nothing else.

135. Now, 1 shall deal with the agreement Ext. 9/A which was executed in between the Seth Anandji Kalyanji and the Stale Government on the basis of which the plaintiffs of Title Suit No. 10 of 1967, are claiming their right and coming for declaration of restraint against the Digambars in making any construction etc. This agreement has also been challenged by the Digambars in their later suit being T. S. No. 23 of 1968, as being not legal and binding on mem.

136. The execution of the agreement has been admitted in the written statement filed by the Slate Government and its legality and validity was not challenged in so many words in the writien statement. With regard to this agreement. Issue Nos. 6, 7 and 9 had been framed as mentioned earlier. Issue No. 6 related to the question as “to wheiher the agreement dated 5-2-1965, entered into between the Anandji Kalyanji and the State Government is illegal, void, ultravires and mala fide and is in colourable exercise of power without any public interest and without any compelling necessity.”

Issue No. 7 related to the question as “to whether the said agreement clouded over the right and interest of Digambar sect” and Issue No. 9 related to the question as “to whether the Plaintiff-Digambar of Title Suit No. 23 of 1968, are entitled to challenge the legality and validity of the agreement dated 5-2-1965”.

137. The trial Court considered all these issues simultaneously as they were inter related to each other and came to the conclusion that the said agreement is valid, except Clause No. 6 of the said agreement which stipulates about the sharing of the profits (60/40) which was fixed under the said agreement. The learned Sub Judge has also decided that the Digambaries cannot claim to challenge the Deed of agreement Ext. 9/A in the negative way and they cannot have the right to challenge the legality or validity of the agreement as the Digambars themselves have also entered into a similar agreement with the State Government on a later date in 1966.

138. It may be mentioned here that after the vesting under the Bihar Land Reforms Act. Seth Anandji Kalyanji made continuous efforts to get the property divested in their favour. They went for writ petition before the Apex Court but then the same was withdrawn and then started approaching the Government by representing their causes in various ways to get some flow of right for management of the Hill as a whole even after the Notification. The way such sort of approach was being made as is revealed from the discussions and the minutes of the meetings, it becomes clearthat the parties were not to preserve the sanctity of the religious Institution but definitely for commercial purposes to have the control and management of the property as various areas including the forests within the Hill have much value in the market. They were requesting the State Government to give them every right to manage the property. They even went to the extent of giving a proposal to purchase the entire Hill from the State Government. The State of Bihar agreed for discussions and several sittings , were held with the officials of the State of Bihar and the result is the agreement dated 5-2-1965. The minutes and discussions have been brought on record as Exts. 18 and 19. In the said agreement, the Government declared that the ancient shrines were not covered by the Notification of vesting. It further declared that the forest shall be maintained through the agency of the forest department but an area of half a mile around the temples shall be excluded from the management of the forest department. The agreement contained further stipulation and the plaintiffs of the two sects, namely, Digambars and Swetambars shall retain control of their respective temples and shall have the right to construct buildings for religious purposes and the purpose of accommodation of the pilgrims on the hill, subject to the permission of the Government. It was also stipulated that a Committee shall be set up with a view to advise the State of Bihar in the matters relating to the development and working of the forest. The Committee said to be constituted consisted of two representatives of Swetambar Murti Pujak Jain Community and two representatives nominated by the State Government.

139. I have already mentioned that in the vision statement filed by the State of Bihar, the legality and validity of the agreement of 1965 was not questioned in so many express words but on going through the written statement as a whole it could be found that the State of Bihar admitted only the execution of the agreement dated 5-2-1965 and pleaded that the area covered by temples and shrines is not in the management of forest department but continues to he in exclusive possession, control and-management of Anandji Kalyanji trust. Stale of Bihar has never stated that all the terms and conditions of the agreement were valid and legal but by admission of the execution of the agreement, its legality and validity might be inferred as is stated by Mr. Bacchawat for and on behalf of the plaintiffs. Admission of execution of a document does not debar a party to challenge its legality.

140. During the course of hearing of the suit, the State Government found after taking advise from the Advocate General that the written statement was not in consonance with the agreement dated 5-2-1965. and that the whole of the agreemeni has been entered into by misrepresentation of the fact that Seth Anandji Kalyanji was a trust and it was in management and control over the shrines and temples, rather as per earlier decisions of the Courts Swetambar Murti Pujak Jain community were fighting and was held to some extent that they were in management and control of the temples and shrines but the Digambar community had been given all authorities regarding their mode of worship and visiting the temples without any let or hindrance. But that fact had not been properly represented and suppressions were there from the adverse party and only a judgment of the Calcutta High Court was made to be known to the officials of the State Government while approaching the State Government for having their right of control over the Parasnalh Hill. Suppression of all other judgments passed by the Privy Council and the High Court of Patna were done with an obvious and motivated purpose of misrepresenting the facts and making the officials of the State Government belief that Seth Kalyanji Anandji were in management and control of the religious Institution at Parasnath Hill and its surrounding area including some portion of the forest area. When the State Government found after perusal of various judgments passed earlier being fought between the two sects and other authorities, an amendment petition was filed by the State of Bihar in Title Suit No. 10 of 1967. In the amendment petition the State of Bihar proposed to disclose the actual state of affairs and the circumstances in which the alleged agreement dated 5-2-1965. was entered into. By the said amendment, the State Government wanted to delete some words and paragraphs in the earlier written statement and proposed to insert the fact that pursuant to Bihar Land Reforms Act. The entire Parasnath Hill hearing Tauzi No. 20/1 completely vested in the State of Bihar and the possession thereof was taken over by the Government and also to delete the portion at para-8 of the written statement, whereby it was erroneously slated on the basis of the statements made in the agreement itself that the plaintiff-Swetambary Murti.Pujak Jain Community Trust continued to be in possession of the temples and shrines. That amendment petition under Order 6 Rule 17 read with Section 151 of the Code of Civil Procedure was filed at a belated stage when the evidence of both the parties were over and prayer was made for replacing the earlier para-9 of the written statement which initially ran as follows :

“That with respect to the statements made in paras-12 to 18 of the statements made in the plaint, it is submitted that having learnt of the above said notification under the Bihar Land Reforms Act, 1950 and those of Private Forest Act, 1946, the Swetambar Jain Community of India had made representation to the State Government and even after consideration of their representation the taking over of Tauzi No. 20/1 Hill was not stayed and could not have been stayed in law and after thorough examination of the whole problems, sentiments and legal aspect. Government of Bihar entered into an agreement on 5th of February, 1965. with the trustees of the Swetambar Murti Pujak Jain Community of India by virtue of which Government of Bihar declared that the trsutees of Seth Kalyanji Anandji Trust representing the said community shall retain full control of their temples, shrines, hills and religious establishment. The said agreement of 1965, is perfectly valid and legal and has been acted upon since then. The said agreement was entered into indifference to the religious sentiments and is in substitution of the statutory compensation payable under the Bihar Land Reforms Act. 1950.

The entire estate including the Hill vested in the State of Bihar as provided in Section 4(a) of the Bihar Land Reforms Act indeed as also provided under Section 4(f) of the said Act. By reason of such vesting the Collector shall not to take charge and actually did not take charge of the. Institution which are held to be sacred by the Jain Community any of the trust or buildings connected therewith which are managed and controlled by Seth Anandji Kalyanji Trust representing the Swetambar Jain Community of India. Accordingly, as per Clause to 3 and 6 of the terms of the agreement of 1965, an area of half a mile radius around these temples and shrines has been excluded from the boundary of the protected forest of Parasnath Hill and admitted to be under exclusive possession of Seth Anandji Kalyanji Trust. These lands stand in the record of right henceforth in the name of Members of Board of Trustees of Seth Anandji Kalyanji Trust of Ahemdabad representing the Swetambary Jain Community of India.”

141. By the proposed amendment, this para-9 of the written statement was to be deleted and the following paragraph was to be added :

“Government has given as second thought over the matter and has come to a conclusion that the said agreement dated 5-2-1965, was brought about under extreneous influence under threat of further agitation by the representatives of the Swetambaries which is neither legal nor valid. Government has come to understand that before executing the said agrement. the Opinion of the Advocate General. Bihar which was opposed to it was not taken into consideration and the State under the said agreement, was compelled to barter away statutory right which the officers of the Slate were not competent under law to barter away such agreement dated 5-2-1965. as the said effect to abridging and over-writing the statutory provisions of Bihar Land Reforms Act framed by the State Legislation. As a matter of fact, the cancellation of agreement dated 5-2-1965 and 5-8-1966, are in active and serious consideration of the Government.”

142. When such amendment petition was filed, it was vehemently objected to According to them, such amendment petition had been filed at a very belated stage and such proposed amendment would change the very character of the suit and that when there was a clear direction by the High Court in a consent Order on 2-1-1987, that the suit should be disposed of as expeditiously as possible and the parties would not be allowed to bring on record any evidence oral or documentary which had not been brought on record till that date then there was no scope of allowing such amendment petition at a very belated stage.

143. After hearing the counsel of the parties, the learned Sub Judge had rejected the proposed amendment by passing an order dated 22-6-1989. The main consideration of the learned Court below in rejecting the amendment petition by the State of Bihar that if the proposed amendment was allowed, the earlier stands and views of the defendants towards many of [he important points raised for the determination between the parties would be changed and in this way the parties would naturally demand for production of fresh evidence in the light of the proposed amendment in the written statement and the disposal of the suits would be delayed.

144. The further consideration of the learned Court below was with regard to the observation made by this High Court in MJC No. 179 of 1986 (R), wherein it was held on consent of the parties that none of the parties would be allowed to bring on record any evidence oral or documentary which had not been brought on record till that date.

145. Against the rejection of the amendment by the learned Sub Judge on 22-6-1989, the State of Bihar filed Civil Revision No. 558 of 1989 (R) before this Court challenging that order. The said Revision petition was filed on 20-9-1989, and remained pending till 1992. but by that time the suits had already been disposed of by the impugned judgment and decree dated 3-3-1990 and thus the Civil Revision application became infructuous and hence in terms of Order dated 28-2-1992, the Civil Revision application was withdrawn, as prayed from the side of the Stale of Bihar that the same had become infructuous by that time.

146. Although, the Revision petition had been withdrawn but the factum of the rejection of amendment petition remained under challenge by the State of Bihar as it would appear from the memo of appeal filed by the State of Bihar against the impugned judgment in First Appeal No. 82 of 1990 (R). It had taken a specific ground in the memo of appeal that the amendment sought for by the State was erroneously and illegally refused by the learned Court below and that too without any reasoned order. It was specifically averred that the rejection of the amendment petition on’ technical ground that there was an observation by the High Court in MJC No. 179 of 1986 (R), to the effect that the parties would not be allowed to bring any evidence on record orally or documentary till that date of order was nothing but denial of justice. On this plea, there were also several petitions being filed from the side of the State of Bihar to agitate the matter of amendment in this appellate Court and rejoinders have also been filed by the Swetambars.

147. Mr. Bacchawat wanted to take that amendment matter as a first one before entering into the merits of the ease but that was not allowed as the amendment matter was also within the ground of appeal and should be heard along with other factual matters.

At the very first instance, was the contention of Mr. Bacchawat that such rejection of amendment by the learned Court below had already been challenged in the Revision Petition as mentioned earlier and when the revision petition had been withdrawn, then there remained no scope for agitating that matter in this appeal as the matter had already been set at rest and the rejection remained binding on the parties.

148. On this objection being raised, Mr. Eqbal. appearing on behalf of the Stale of Bihar has referred to the provisions of Section 105 of the Code of Civil Procedure which is reproduced hereinbelow :

Section-105

“Other orders– (1) Save as otherwise expressly provided, no appeal shall lie from any order made by a Court in the exercise of its original or appellate jurisdiction, but where a decree is appealed from, any error, defect or irregularity in any order, affecting the decision of the case, may be set forth as a ground of objection in the memorandum of appeal.

(2) Notwithstanding anything contained in Sub-section (1). where any party aggrieved by an order of remand from which an appeal lies does not appeal therefrom, he shall thereafter be precluded from disputing its correctness.”

Thus, it is argued that from the provisions aforesaid, it is clear that any error, defect or irregularity in any interlocutory order passed effecting the final decision of the suil may also be taken as aground of objection in the memorandum of appeal filed against the final decree. In this connection, he has referred to a decision of the Supreme Court as reported in AIR 1960 SC 941 (Satyadhyan Ghosal v. Smt. Dcorajin Dcbi) wherein it was held that an interlocutory order against which no appeal is maintainable can be challenged in appeal from the final decree/order. AConstitution Bench of the Hon’blc five Judges of the Supreme Court have held as reported in AIR 1964 SC 1658 (Amar Chand Butail v. Union of India) that such an order is open to challenge in an appeal and is not barred by res judicata. Similar is the view taken by the Supreme Court in a subsequent judgment us reported in AIR 1981 SC 707 (Kshitish Chandra Bose v. Commissioner of Ranchi). In that judgment, the Supreme Court had gone to the extent that even the remand order which was not challenged earlier can be challenged in the appeal filed against the decree after the remand order on the ground of illegality or irregularity. In AIR 1970 Cal 8 (Nank Chand Shadiram v. Amin Chand Pyarilal) it was held that an order refusing amendment of pleadings can be agitated in an appeal from the final decree as such rejection vitally affects the decision of the suit on merit. The appellate Court, as is held by the Calcutta High Court must sit for correction of any erroneous interlocutory order while deciding the appeal on merit against the final decree. A Full Bench of the Patna High Court in AIR 1981 Patna, page 36 (Ganesh Ram v. Smt. RamlakhanDevi) while deciding appoint regarding striking off the defence in an eviction suit under Section 11(a) of the Bihar Buildings (Lease Rent and Eviction) Control Act held that in a regular appeal arisen out of the judgment and decree in an eviction suit legality or otherwise of the striking off the defence by an interlocutory order can be challenged, if such grounds are taken in the memo of appeal.

149. Thus, it is the submission of Mr. Eqbal appearing for and on behalf of the State that when specific ground has been taken in the memo of appeal regarding error and illegality in rejecting the amendment petition filed by the State of Bihar then the same can be adjudicated before the Appellate Court in the appeal against the final decree.

150. Mr. Bachhawat then submitted that even if the grounds are taken in the memo of appeal regarding illegal rejection of the amendment petition then also the same is not maintainable, when there is dismissal of the revision petition on withdrawal from the side of the State of Bihar and such dismissal stands as a res judieata in agitating the matter again and again.

I am not convinced with such submission of Mr. Bachhawat.

151. Against the rejection of the amendment petition, revision petition was filed admittedly and while that revision petition was pending before this Court and when there was no stay order passed regarding further proceedings of the suit in the revision petition then during the pendency of the revision petition the suit was already disposed of, thus the revision petition became infructuous for which the State of Bihar had withdrawn it by filing petition and such dismissal on withdrawal cannot come under Section 11 of the Civil Procedure Code as the matter in issue had not been decided. Moreover, the withdrawal was made only for agitating the matter before the appellate Court against the decree and accordingly such grounds have been taken in the memo of appeal filed by the State of Bihar. Hence, on the aforementioned discussions,, I hold that such order of rejection regarding its, legality or otherwise can be adjudicated by this; Appellate Court.

152. On merit, it is the submission of Mr. Bachhawat that the amendment petition had been rightly rejected by the learned Original Court besides a technical ground on consent being given by the parties before this Court in MJC case that no further evidence orally or documentary shall be brought on record. According to him other grounds are :

(i) The application for amendment was not supported by a valid affidavit;

(ii) The application is mala fide;

(iii) The proposed amendment deprived the Swetambars of a valuable right that has already been accrued to them;

(iv) The proposed amendment completely changes the nature of defence and the cause of action;

(v) The proposed amendment is absolutely false and vexatious;

153. On the first ground, Mr. Bacchawat’s contention is that affidavit in respect of an amendment petition was sworn by an Assistant of the Government Pleader as averment was made that he had been authorised to do so and such sort of affidavit by an Assistant of Government Pleader is not in accordance with Order XXVII Rule 1 C.P.C. which requires that pleadings for and on behalf of the Government shall be verified by any person whom the Government may so appoint.

These are all technical objections only. He has also referred to Order III Rules 1 and 2 C. P. C. in this connection.

154. Government Pleader is definitely an authorised person for and on behalf of the State Government and his Office is also a Department of the State Government. In that view of the matter, an Assistant of that Office can very well be authorised for swearing affidavit for and on behalf of the State Government. This point has got no much force.

155. On the second point, it is submitted that the amendment petition has been filed long after 19 years during the course of final arguments and that too after giving a sort of undertaking before this Court in MJC No. 179 of 1986(R) on 2-1-1987, that no further evidence either oral or documentary shall be produced.

Amendment prayer of the pleadings does not come within such undertaking being given even if it is considered as an undertaking before this Court from the side of the State Government but amendment petition may be filed at any stage but it remains the discretion of the Court whether it is to be accepted or not for proper adjudication of the dispute, and such discretion must always be exercised judiciously.

156. According to Mr. Bachhawat, the original written statement was filed by the State in the year 1969, and the amendment was sought after the evidence was over and the argument was going on in August, 1988. The State Government was always vigilant in the proceedings of the suit and at no point of time the suit was dormant and as such it cannot be said there was any bona fide in filing the proposed amendment at such a belated stage and according to Swetambars, such amendment was filed by the State Government only to support the Digambars on their plea regarding the illegality of the agreement.

157. The grounds for amendment was stated and explained in the petition itself to the effect that after examining the written statement it could be found after taking advice from the Advocate General that some statements made in the original written statement were unhappy and inadvertantly made against the statutory powers of the State and as such the State Government was compelled to file the amendment petition.

158. There is no doubt that the amendment petition had been filed at a very belated stage and there are laches on the part of the State Government but only due to laches of the parties, amendment petition, if really needed for a proper and just decision in the suit, should not be rejected but for the laches the party may be penalised by way of imposition of costs etc.

Only because there was delay on the part of the State Government, I do not find any force in the submission that the amendment petition was mala fide and was in collusion with the Digambars. The suit of the Digambars had also been contested by the State. The agreement arrived at between the State Government and the Swetambars followed an agreement between the State Government and the Digambars and the proposed amendment stating that the agreement had been made on suppression of vital facts and mis-representation of the facts and circumstances also against the statutory provisions of different local laws and also under the Contract Act, in that case, it cannot be said that the State Government was hand in gloves with the Digambars in filing such amendment because by such amendment of the pleadings, not only the agreement of the Swetambars would be affected but the agreement of the Digambars would also be affected as both agreements were on similarly situated condition and position and circumstances.

159. About the fourth point that the proposed amendment completely changes the nature of defence and the cause of action it is the submission of Mr. Bachhawat that the execution and validity of the agreement of 1965, had been admitted by the State of Bihar in the original written statement by unequivocal terms and such admission is attempted to be taken away by the proposed amendment which cannot be allowed as by this time because of such admission, some right has already been accrued in favour of Swetambars.

Reliance has been put on AIR 1977 SC 680 (M/s. Modi Spinning and Weaving Mills Co. Ltd. v. Ladha Ram and Co.).

160. The principle of amendment is well settled. The Courts are always liberal in granting amendment of pleadings, even if there are laches and negligence and delay from the side of the parties. The law has been liberalised to this extent now that even if there is an admission regarding execution of a document by a party, the same execution can be allowed to be explained in the negative way by an amendment.

In this connection, AIR 1969 SC 1267 (Jai Jai Ram Manohar Lal v. National Building Material Supply. Gurgaon) and AIR 1979 SC 551 (Ishwardas v. State of Madhya Pradesh) may be referred to and a recent judgment of the Supreme Court, wherein the execution of the agreement was admitted but the parties came up denying such execution by proposed amendment and the circumstances in which such agreement came into force had been allowed by the Supreme Court holding that an admission even if it may be made, such admission may be explained by way of circumstances leading to such admission. (1996) 2 SCC 25 (G. Nagamma v. Siromanamma).

161. Moreover, if the amendment does not require any further evidence to be led by the parties then such amendment be readily granted for giving scope to the parties and also to the Court for coming to a just decision on the matter of dispute. Moreover, from the amendment being sought from the side of the State Government, it is clear that they were not taking any factual aspect of the matter of execution of the agreement and they still relied on their admission of signing the agreement but they submitted that such agreement was beyond the scope of the State Government in view of the statutory for under the Bihar Land Reforms Act and also under the Contract Act. It was further proposed in the amendment that there were mis-statements made regarding the previous history of the Parasnath Hill and its management and control by the Swetambars in referring the judgments of the previous disputes between two sects.

Even if there is admission on the part of a party to the agreement, legality or validity of the same can always by questioned. By making statement by a party that such agreement was validly executed, cannot be taken as an admission regarding its legal validity. It is always open to the Court, even on admission of the parties regarding a document, to consider its legal validity and in that sense it cannot be said that the State Government by making admission regarding valid execution of the agreement they are debarred from questioning the legality of the same. Even if a party admits of legal validity of a document then also it remains open to the Court to adjudicate its legal validity. If the document is apparently an illegal document, then by admission of a party it cannot get the sanctity of legal validity. If the parties are debarred from challenging the legality then also it remains the burden of the Court to see whether there is legal validity of the document or not. Thus, by making an admission on the part of the Stale Government regarding the legal and valid execution of the agreement, Swetambars do not get any beneficial right to be accrued in their favour.

162. It is true that up to the stage of its execution, there remains no burden of the Swetambars to prove that agreement by adducing any evidence but its legal validity must be proved by cogent and lawful evidence. Moreover the main party against whom the suit had been filed by the Swetambars i. e. the Digambars had from the very beginning challenged the legality of the agreement and for that legality, the parties had already led evidence. Thus the State Government, if now a! a belated stage has come up for amendment of their written statement challenging the legality and validity of the agreement, it should not be thrown out only on the ground of delay as the validity of the agreement was in reality a question before the Court as one of the parties had challenged its validity and the evidence had also been led by the parties on the point as issue No. 9 was already framed regarding validity of the Agreement. State Government in so many words had not challenged the legality or validity of the agreement but now by the proposed amendment they challenged so. In that sense, when no further evidence is necessary on the point of validity of agreement, I feel that the learned Court below ought not to have rejected the proposed amendment.

163-164. Coming to the factual position, it appears that since the time of vesting, as stated from the side of the Government, the plaintiffs were always questioning the validity of the vesting. It was the firm stand of the State of Bihar that whole of the Parasnath Hill had been vested. Now, by virtue of that agreement, the Swetambars are trying to say that the property had not been vested and it continued to he in their possession.

Mr. Eqbal has submitted that by taking advice from the Advocate General it could be realized that the agreement was an outcome of wrong understanding of law and mis-representation of the facts and the history of the case from the side of the Swetamhars. The Government officials were influenced and made to believe and then entered into the agreement. The real matters in controversy were necessary to be determined and adjudicated once for all by the Court and for that purpose the amendment was sought for by the defendant-Stale of Bihar. By relying on the decision of AIR 1980 Patna 143, (Purnamal Bajoria v. Nagarmal) Mr. Eqbal submitted that such amendment should always he allowed. Even an admission can be withdrawn by party or may be explained away, as held by the Apex Court as reported in AIR 1983 SC 462 (Panchdeo Narain Srivastava v. Jyoti Sahay). For allowing or rejecting an amendment petition, it is duly of the Court to see whether such amendment can be an aid ineffectively adjudicating the dispute between the parties and if it is felt so then amendment should always be at lowed. In the present case, the very case of the plaintiffs-Swetambars is based on the agreement and its validity and effectiveness is the main dispute which requires to be adjudicated in the suit and if regarding validity something had been left out and same can be brought on record by way of amendment even at a later stage, such amendment cannot be thrown out on technical grounds of delay and speedy disposal of the case. Learned Court did not apply his judicial mind in passing the order of rejection. He had not at alt considered the fact that legality of the agreement was already questioned in the suit and evidence has also been led by the parties The proposed amendment of the Stale was totally based on legal implication and the documents already exhibited in the suit. Hence allowance of amendment would never go hack to the stage of evidence again. The submission of Mr. Bacchanal that the proposed agreement completely changes the nature of defence and the cause of action has got no proper footing.

It is true that some admission was there on the part of State of Bihar regarding the execution and validity of the agreement but only it was stated that it was executed validly and already being implemented but whether such validity is a legal validity and whether implementation was possible or not can definitely be explained by way of amendment. This docs not change the nature of the defence as because the other defendants had already challenged its validity and the implementation thereof.

165. In that view of the matter, it cannot be said that the nature of the defence and cause of action would be changed, if such amendment would be allowed. I have already stated that the validity of the agreement was challenged by the Digambars and both the parties had adduced evidence and no factual part of it was left out to be supported by any further evidence. Now. only the legality of it had been challenged by State of Bihar. although validity was once admitted by them but validity was substantially and directly an issue for adjudication as raised from the side of the Digambars and it is the settled principle of law that a defendant can take even inconsistent picas in his defence pleadings. In that view of the matter. I feel that allowance of amendment would not change the nature of the suit nor the parties would be put to an embarassing position, if the amendment was allowed at the delayed stage, as I have already mentioned that no further evidence was required, If such amendment would have been allowed the parties were only to argue on the materials on record even without giving chance of amendment of the paint from the side of the plaintiff-Swetambars. There remained no scope of their grievance as the validity of the agreement was in queston from the very beginning as it was raised by the main defendant Digambars and now the same had been supported by the State of Bihar also, hence I find and hold that the amendment sought for from the side of the Stale of Bihar ought not to have been rejected and as the amendment in no way prejudiced the plaintiffs or the oilier set of the defendants, as the challenge regarding the validity of agreement was already there on record itself and the parties had led their evidence on such challenge itself. Moreover, when the Government realised that the agreement was against the principles of law and Statute they initialed a proceeding for cancellation of the agreement vide Misc. Case No. 49 of 1989, but the same had been stayed by the order of injunction of the learned Court below. This shows the bona fide on the part of the State Government regarding the error and mistake or mischief committed in arriving at the agreement on misrepresentation of facts and law and for that reason the amendment petition was filed for explaining the admission made on their part in the original Written Statement regarding the execution and validity of the agreement itself. As I have already held that when no further evidence is necessary and when the challenge on validity of the agreement was there being an issue in the suit itself then this amendment from the side of ihc Stale Government regarding their pleadings requires to be allowed which I accordingly do for proper adjudication and just decision of the suit, as the whole suit of the plaintiff-Swetambar is based on the terms of the agreement of 1965 itself.

The validity of the agreement was challenged by the Digambars not only in their written statement filed in the suit of the Swetambars but also in their own suit. Accordingly to Mr. R.K. Jain when the agreement itself is against the public policy and against statutory laws of the land, there is no scope of reliance on such document to give any relief in favour of Swetambars.

166. The learned Subordinate Judge has observed in his judgment regarding validity of the agreement that Article 299 of the Constitution of India would come into play in not debarring the Government to enter into such an agreement and the contents of the agreement (Ext.9/A) would reveal as to why the Government considered it necessary for entering into such agreement. The learned Subordinate Judge further observed that the Government was anxious and condous (conscious) and considered the fact that the whole of the Parasnath Hill was holy place and of religious importance for the Jain Community as a whole and as such the Government was very interested to bring the forests of the Parasnath Hill under its management and control for its development and improvement, but in view of Section 4(f) of the Bihar Land Reforms Act, the Government could not have taken charge of the Hill as a whole as it was admittedly a property of the Trust and it was for these reasons, the Government entered into the agreement of 1965. to take the charge of forest area of Parasnath Hill to gel it managed by ils Forest Department. Further, the learned Court below held that in view of the powers conferred under Article 299 of the Constitution of India, the Stale Government did not enter into me agreement on colourable exercise of power, rather knowing fully well that it had been vested under the Bihar Land Reforms Ad hut actually no possession could he taken and because of the sentiments of Jain Community being at stake the agreement was further necessary to be entered into. In consideration of the agreement, the learned Sub Judge has referred to Section 13 of the B.L.R. Act and provisions related to payment of compensation in respect of vested estates. Section 13 emphasizes that all estates and tenures which vested in the State should be managed according to the Rules in force for the management of the Government estates and as such according to the learned Sub Judge, Parasnath Hill being not an ordinary estate but keeping in view of its religious sanctity and sentiments of the Jain Community, estate of Parasnath Hill requires special kind of management and. therefore, the agreement for the management specified in the agreement is not in any way violative of Section 30, although one of the terms of the agreement regarding 60/40 share of the forest produces had been struck down being not legally admissible under the law as there was only annuity in question.

167. Mr. R.K. Jain appearing for and on behalf of the Digambars had questioned the agreement on the following grounds :

(i) That it was executed under mistake of facts and as such hit by Section 20 of the Contract Act;

(ii) That it is violative of the Bihar Land Reforms Act viz. (a) fixing the amount payable to the Swetambar in violation of the provisions of Section 24 Sub-Section 3 of the Act; (b) Divesting of the property vested in it on issuance of Notification under Section 3(1) and 3 A(1) of the Act, though there is no provisions for the same.

(iii) It is also violalive of provisions of Indian Forest Act. i.e. (a) On the ground of nullifying the notice issued under Section 29(1) of the Act: (b) Not taking any follow up action under Section 38(2). if agreement in question is recorded under Section 38(1):

(iv) That this is violation of Constitution of India on the ground of violation of the provisions of Articles 14. 25. 26 and 27 of the Constitution of India;

(v) That it is violalive of Public Policy and hence hit by Section 23 of the Contract Act.

168. The State of Bihar has also challenged the validity of the agreement on the following grounds:

(A) It violates the provisions (if the Bihar Land Reforms Act:

(B) It is beyond the powers of the State Government to enter into such agreement:

(C) It is violative (if Article 14 of the Constitution of India;

(D) The agreement came into existence because of misrepresentation of facts by the Swetambar:

(E) The agreement is void under the provisions of Indian Contract Act, Indian Forest Act and Bihar Land Reforms Act;

(F) The contract is illegal for the reasons that it opposes and is against the public policy and public interest and caused impediment in enforcing the public policy and public interest and therefore unlawful.

169. Thus, it appears from the grounds being taken that the grounds of challenge of validity of the agreement by Digambars and the State of Bihar are almost similar and same.

170. Mr. Bachhawat at the very outset took the objection that the Digambars have got no right to challenge the agreement. His first submission is that Digambars admitted that the estate of Parasnath Hill had vested under the Act in the State of Bihar. The vesting as per Section 4(a) is to be free from all encumbrances. The only right to worship and the right of way to the temple should be maintained and as such they have no locus standi to challenge the validity of the agreement executed by the State Government and the Swetambars.

171. The Swetambars also admitted the position that the Digambars have also got their right of worship and practically Jain Community as a whole has got the right of worship to the temples and tonks including two sects, but this alone cannot be considered as an admission either on the part of the Swetambars or the Digambars that either of the party cannot challenge the agreement entered between the State Government and the Swetambars. Such admission, in my view, from the side of the Digambars docs not create any barrier for them to oppose the agreement.

172. Further submission of Mr. Bacchawat that the Swetambars and Digambars stand on the same footing while entering into an agreement with the State Government as the Digambars had also entered with such agreement on a later date but the agreement of the Digambars are not in any way being questioned in either of the suits. But, it is an admitted fact that the Digambars had also entered in to an agreement with the State Government alter Ext. 9/A was executed between Swetambars and the State Government.

173. Mr. R.K. Jain has fairly submitted that if the State Government have no authority to enter into such an agreement then not only the agreement of Swetambars but that of Digambars should also have got no legal validity.

In the plaint of Title Suit No. 23 of 1968, in paragraph 45, the Digambars had specifically mentioned in the following manner ;

“That the said agreement appears to have come into existence by reasons of gross misrepresentation made by the defendant nos. 2 to 10 to defendant no. 1.”

174. Thus, when on the basis of the agreement, the plaintiff-Swetambars had bused their right to claim injunction, there is every right of Digambars to challenge the validity of such agreement. Only because they had also subsequently entered into an agreement with the Stale Government that do not create an estoppel or waiver on their part to challenge such agreement.

175. Against, it is submitted by Mr. Bacchawat that Digambars not being a party to the agreement. Ext. 9/A and as such they being a third party, they cannot challenge such agreement.

He has referred to AIR 1916 Cal 924 (Safar Ali v. Mohesh Lal Choudhary) and AIR 1956 Andh Pra 195 (M. Venkaiasubbaih v. M. Sabbamma) and also AIR 1949 East Punjab 277 (NathaRam v. Mt. Sohan Devi) in support of this contention.

176. In the Calcutta judgment, by way of obiter dictum it was observed that when a transaction which is voidable in nature is admitted by the person who is entitled to avoid it then the same cannot be questioned by a third party. This observation of the Calcutta High Court has got no hearing in the present case.

The agreement in question has been challenged by the State Government who is also a party to it and again on the basis of that agreement relief of injunction has been prayed for by the Swetambars in the suit against Digambars and when they are going to be vitally affected by such agreement then they are definitely entitled to challenge it.

177. The Andhra Pradesh case is based on a deed of gift. A third party to a deed of gift cannot challenge the same but here it is an agreement which according to the Digambars and the State of Bihar is against the Public Policy and hence anybody interested may challenge the same.

The Punjab ease is also on the basis of a gift deed, which has got no bearing in the present circumstances of the case.

178. Although, a document executed between the two parties may not he challenged regarding its validity by a third party but even consequence of it is writ large to affect some parties or public as a whole and when on the basis of that agreement a third party is going to be restrained, he has got every right to challenge the same whether the same is a public interest litigation or not.

179. Mr. R.K. Jain, appearing on behalf of the Digambars submitted that practically the suits are in the form of public interest litigation and if not, at least amongst the Jain Community as a whole and as such public in general or a sect of the Community can challenge any document which is going to affect their right and interest.

180. According to Mr. Bacchawat, the suits cannot be staled as Public Interest Litigation because only two sects of Jain Community are fighting amongst each other and although Order I Rule VIII C.P.C. were applied in both the suits but by that alone, it cannot be said to be a public interest litigation because the plaintiffs of both the suits wanted other members of their community to be added as parties to the suit.

181. Jain Community as a whole are involved in the matter in issue and when the vesting is also in question then the public in general becomes automatically interested and in that view of the mailer both the suits may not be considered as Public Interest Liligation in their proper terms or perspective, but the tact remains that a huge property which has been vested to the Stale Government is being claimed by a Sectarian Group of a Community then the other communities must also have the right to challenge any happenings with regard to that property. The Digambars have also got some right of worship having a Dharmshala and hence they are entitled to challenge the validly of the agreement between the Swetambars and the State of Bihar.

182. The first ground taken both by the State Government and the Digambars is with regard to the execution of the agreement on mistake of facts. According to the State of Bihar. the agreement dated 5-2-1965, was entered into between the Stale of Bihar and Swetambars on misconception and misrepresentation of facts made on behalf of Seth Anandji Kalyanji. The details of misrepresentation and misconception are in the following manner, as pleaded by the State of Bihar:

(i) Hill is not a religious Institution as a whole but the Swetambars represented the same to be a religious Institution as a whole:

(ii) The plaintiffs or Seth Anandji Kalyanji got it incorporated in the agreement that they have control, management and ownership from the time of Mughal Emperor, which contention was never accepted by any Court and the Farman of the Mughal Emperor on which Swelambars wanted to claim over the property of Parasnath Hill had already been declared by Courts of law as spurious and fraudulent document.

(iii) The fact that the Jain-Sweiambars Society was concerned with shrines alone was concealed and Anandji Kalyanji misrepresented as if they were the only owners or in management of the Parasnath hill.

(iv) It was concealed that properties of other Khewatdars including the Government Jharia Water Board, Raiyali land. Dak Bungalow belonging to the State, Adivasi villagers having right of hunting and holding of Melas and Dharmshala existed on the Hill.

183. Regarding the hill being as a whole a religious Institution was claimed both by the Swetambars and Digambars because Digambars also had pleaded that the Parasnath Hill had been considered as the religious Institution for the whole of the Jain Community but such belief as I have already held, cannot take away the right of vesting of the Parasnath hill to the State of Bihar.

A belief cannot have the synonyms of legal right. According to Mr. Bacchawat. regarding misconception and misrepresentation, nothing had been pleaded in their pleadings by the State Government or the Digumbars and as such when there is no specific pleadings to that effect the Swetambars cannot he taken on surprise of such submissions being made only at the time of argument or before the Appellate Court.

184. Mr. Eqbal, Mr. Ram Balak Mahto and Mr. R.K. Jain appearing for the defendants had argued that such submission of Mr. Bacchawal can have no legal binding, when nothing has been submitted by them extraneous to what is there on record itself.

185. Mis-representation and misconception arc legal phenomenon coupled with the facts available on the record, can be well argued on their behalf and for that specific pleading is not necessary, when the agreement itself has been challenged regarding its legal validity.

186. Mr. Bacchawat has referred to para-45 of the plaint in Title Suit No. 23 of 1968. wherein the Digambars had pleaded :

“the circumstances under which the said purported agreement was entered into which peculiarly within the knowledge of the defendants and as such the plaintiffs at this stage were unable to give particulars of the said collusion and conspiracy until the defendants make full and perfect discovery as to under (which) circumstances the said agreement was entered into.”

Mr. Bacchawat’s submission is that when such statements had beem made in the plaint by the Digambars and when no particular event or document had been proved from the side of the Digambars or the State Government they cannot challenge the validity of the agreement on misconception and misrepresentation of facts.

187. I am not convinced with such argument of Mr. Bacchawat. When the agreement was challenged the Swetambars had proved the circumstances i.e. the Resolutions of the meetings of the officials of the State Government and the Swetambaries and the conclusions arrived at after such meeting and the circumstances being revealed from different letters issued from the side of the Slate Government and also by the Swetambars, then the parties who arc opposing the validity of the agreement can definitely rely on those admitted documents to challenge the legal factum of misrepresentation and misconception,

188. Now. Mr. Bacchawal submitted that no party can challenge the validity of the agreement on ground of mistake of fact as reported in AIR 1943 Patna 327 (Shiva Prasad Singh v. Maharaja Sris Chandra Nandy).

But, the validity of the agreement has not been challenged only on mistake of facts but it was one of the grounds which hit the validity of the agreement of the root. Regarding the submission of Suite of Bihar. Mr. Bacchawal’s contention is that even if amendment petition of the State is accepted then also there is no averment regarding the mistake of facts in the amended written statement and lack of pleadings debar the State to raise this point of mistake of facts.

189. Mistake of facts and misrepresentation arc two inter related instances, while misrepresentation may have the legal colourisation while the mistake of fact is only factual aspect but if they are intermingled then the misrepresentation which is a legal phenomenon can he based on mistake of facts also. Thus special pleadings for mistake of facts may not be necessary for pleading the misrepresentation or misconception.

Hence. I hold that the objection raised by Mr. Bacchawat for non pleading of mistake of facts in the pleadings of the State of Bihar or that of Digambar has got no vital affect.

190. On merit it is submitted on behalf of Digambars and also from State of Bihar that the agreement arrived at as per Ext. 9/A on fundamental and total mistake of facts, to the effect that the Swetambars were assumed to he the owners of the Parasnath Hill, when this was completely a myth. It was referred with regard to para-6 of the Preamble of the Agreement, wherein it was mentioned in the following manner:

“(6)– And whereas the party of [he second part claims to be the full owner of the said Parasnath Hills from time immemorial but because of certain dispute with the family of Raja of Palganj and with a view to remove the cloudes of their title and with a view to the preservation…”

191. According to the State and the Digambars. Swetambars were never owners of Parasnath Hill. Seth Anandji Kalyanji purchased some interest which were left with Raja of Palganj and that of Nawabargh in the year 1918 itself and after the vesting the question of their ownership or removal of shrouds regarding their title of Parasnath Hill did never arise at all when regarding vesting of Parasnath Hill, everything had been done from the side of the Stale of Bihar as already discussed in earlier paragraphs regarding the validity of vesting of Parasnath Hill in the Slate of Bihar. Moreover, vesting was chellenged by the plaintiff’ Seth Anandji Kalyanji in the writ petition before the Supreme Court but that has withdrawn and that it was admitted in that writ petition as mentioned above that there was vesting under the Bihar Land Reforms Act of the whole of the Parasnath Hills. Thus, it is definitely a mistake of fad and misrepresentation also.

192. The second mistake of facts alleged was with regard to the Trust of Seth Anandji Kalyanji representing the whole of the Swetambar Muni Pujak Jain Community. That trust matter had already been discussed earlier and it could be found that such trust was not there earlier and the question of trust being the owner of Parasnath hill does not arise at all.

193. Third mistake of fact regarding the whole of the Parasnath Hill being a religious Institution, it has already been mentioned that Parasnath Hill as a whole can in no case he considered as a religious Institution and the religious sanctity was there only in respect of tonks. shrines and temples on the top of the hill and it has already been held by the Privy Council in AIR 1933 PC 193 (HukumChand v. Maharaja Bhadur Singh) that the Hill is not a Devottar properly, hut that statement has totally been suppressed and it is not only a mistake of fact but also misrepresentation from the side of the plaintiffs-Seth Anandji Kalyanji.

194. There was also allegation that only the judgment of Calcutta High Court in original decree No. 280 of 1890. was referred to to the effcet that every stone of the whole Hill is holy and an object of adoration and worship to the Seth Anandji Kalyanji. It is alleged with motive the judgments of Privy Council were never produced before the officials of the State Government and there was suppression from the side of the plaintiffs-Anandji Kalyanji. which caused, according to the State and the Digambars a definite confusion in the minds of the officials of the State Government to enter into the agreement.

When, it was held by the Privy Council that the Hill is not a Devollar property, then even if there is a belief or faith of any party the same alone cannot make a properly as a whole to be a holy or religious Institution.

195. There is also suppression regarding the compensation proceedings being initialed under the Bihar Land Reforms Act. wherein the Svvetambars had submitted their returns. If that would have been there then Clause 4 of the agreement regarding no question of compensation as envisaged under the B.L.R. Act would be available and because of such concealment 60/40 sharing was done between the State of Bihar and Seth Anandji Kalyanji. This sort of misrepresentation and mistake of facts practically induced the State Government officials in entering into agreement, although there is no provisions under the B.L.R. Act to make any agreement contrary to the Act itself regarding payment of compensation.

196. As per Clause 5 of the agreement, an Advisory Committee was set up with a view to advise the Stale Government in matters relating to the development and working of the forest. Forest of Parasnath Hill was notified as protected forest under the Indian Forest Act in 1964 and thus the working and development of forest must be under the Indian Forest Act or Rules framed thereunder and such Management cannot be entrusted to an Advisory Committee, which is against the provisions of the Indian Forest Act and thus totally illegal.

197. The suppression of facts are there, but Mr. Bacchawat submitted that even if those are considered to be suppression or misrepresentation then also there will be only a mutual mistake and mutual mistake can never be considered as a condition for making an agreement or a contract void or voidable. Mr. Bacchawal has referred to Section 22 of the Contract Act in this respect. According to him there is no provision under the Contract Act regarding the mutual mistake but from the general concept mutual mistake may occur when each of the parties misunderstand the stand of the other and thus according to him there is no acceptance of same offer in the same sense and as such Section 20 is not applicable to such mistake. When there are mistakes on both parts then both parties are ad idem and as such when both parties entered into the agreement with mutual concept or common mistake then the agreement cannot be held to he void or voidable unless the mistake goes to the root regarding the entering into the agreement itself as the object of the agreement, if not suffered by any such mutual mistake.

198. Here, not only the mistake of facts are there but there is misrepresentation of facts and suppression and if proper things would have come to light during the discussion between the parties then the agreement could not have been entered into and on the question of the State of Bihar. it is submitted by Mr. Eqbal. if misrepresents ion would not have been there then the State of Bihar would not have entered into the agreement and according to him. because of such misrepresentation the State Government had entered into the agreement, when such agreement is totally contrary to the different provisions of Bihar Land Reforms Act and the Indian Forest Act. as mentioned above.

199. His further submission is that when a properly has been vested totally with the State Government under the B.L.R. Act then there is no provision of divesting of the property lo any other party that too from the party from which possession had been taken by the State Government after vesting.

The State of Bihar on the facts as mentioned above had definitely entered into the agreement of 1965. on misconception and wrong assumption of fads. It has now become the settled principle of law that if the parties to a contract proceeded on a faulty and fundamental wrong assumption, contract shall he void. In this respect, reference may he made to 1931 All England Law Report at page 26-27 (Bell v. Lever Bros.)

200. According lo Mr. Eqbal. the agreement of 1965 i.s not only against the provisions of the Indian Forest Act and Bihar Land Reforms Act hut also void under the Indian Contract Act. as the same is based on misrepresentation, wrong assumption of facts and totally against the public policy.

In (1977) 2 SCC 424 : (AIR 1977 SC 536) Mannalal Khelan v. Kedar nath Khetan), the Apex Court has enunciated the law that if the Contract is prohibited by the Statute and is against public policy then the same is void. The Preamble of Bihar Land Reforms Act gives the reason why the estates of Ex-Zumindars are to he acquired for the benefit of the general public i.e. the actual tillers. Thus, the whole Act is based on a public-policy and then if after vesting the same property is being settled with the party from whom it has been acquired, gives go bye to the all norms of public policy and thus the agreement itself is definitely against the public policy Section 13 of the B.L.R. Act is of no avail, as the said provision only enunciate about the management of estates and tenures vested in the State. For such management, agreement or settlement may be made within the four corners of the Rules and the Ac! itself, but there is no scope of making an agreement to give away the properly which had already been vested with some conditions rather those conditions being void under the law, the agreement results in divesting of the properly already vested which is not permissible under the law. Divesting can only be done, if there is a special Notification under the Act for release of such vesting, but by mutual agreement by the Stale Government the same cannot be done. Besides the above, when there is no provision under the Bihar Land Reforms Act empowering the State Government to divest any land or property, which had already been vesied then any agreement made to this effect is not only void but against public policy too. The Government has no power to exclude any area from vesting. Notification issued under Section 29 of the Forest Acton 14-4-1964, whereby the entire forest land was declared as protected forest and in that admilted position, the State Government cannot enter into any agreement in respect of protected forest as such agreement is violative of the Indian Forest Act. There was also no evidence to the effect that the income from the forest had ever been utilised for the place of pilgrimages. The State Government had already initialed proceedings for cancellation of agreement vide Misc. Case No. 49 of 1989. but the same was stayed by order of injunction and even during the pendency of the appeal, it has been submitted in the bar that the plaintiff had prayed to the State Government for settlement of 88 decimals of land of Touz No. 20 which goes to show that the agreement had never been implemented and the question of implementation of agreement does not arise also as such paper transaction cannot have any entity in the eye of law. If some vital terms of the agreement are void in the eye of taw then the whole agreement should be considered as void. The initiation of the agreement is bused on misconception of law and misrepresentation and mistake of facts.

201. In the present case, only one term of the agreement had been struck down by the learned Sub Judge holding that the same is against public-policy and illegal not being ensured by any provisions of law and when that term is the vital term in the agreement for which purpose the agreement was arrived at then the whole agreement should be considered as void and illegal.

202. On scrutiny of the different clauses of the Agreement and [he terms and conditions and discussions and Resolutions made in joint discussion between the Government officials and the representatives of Seth Anandji Kalyanji. it can be very well found that the whole foundation of the agreement was based on not only mistake of facts, misrepresentation and also suppression of very vital facts then the same is definitely hit by Section 20 of the Contract Act. without going into much differentiation regarding mutual mistake or unilateral mistake or bilateral mistake but mistakes were there and those were not mistakes of negligible manner but mistake of the very foundation of the cases of the parties. While the State Government had already acquired property under the provisions of the B.L.R. Act and took over possession and compensation proceedings were started then there remained no question of giving any relief by way of arriving at the agreement to the Seth Anandji Kalyanji as owner of the Parasnath hill.

203. Clause regarding 60/40 share of income is the vital condition for which the agreement had been arrived at, which share is barred under the provisions of Section 14(3) of the B.L.R. Act and by striking down that condition alone the agreement cannot be revived or given a life to it for the purpose of implementation when the very basis of the agreement is based on misrepresentation and mistake of facts on the face of it or apparent to it then the whole agreement is vitiated and hit by Section 20 of the Contract Act,

204. Besides this there is no provision under the B.L.R. Act empowering the State Government to divest any land or property which stands vested. I have already mentioned the very purpose of acquisition under the B.L.R. Act and if divesting is there then it goes to the root that the whole agreement is against public policy. It is also against public policy when there is statutory bar of divesting. Section 13 of the B.L.R. Act only relates about the management and does not confer any power of divesting.

205. Mr. Bacchawal has misconceivably referred to Section 13 of the B.L.R. Act regarding powers of the State Government, when an agreement or contract has been arrived at against public policy, it is against the very essential of valid contract and as such void.

In this connection, reference may be made to (1977) 2 SCC 424 : (AIR I977 SC 536 ) ( Mannalal Khetan’s case (supra) ). Moreover even if it is said that the agreement has been arrived at for the purpose of Management of the Parasnalh Hill then also Government has no power to exclude any area from vesting but a half of mile area has already been excluded from vesting by way of the agreement arrived at.

206. Just before one year prior to arriving of the agreement in the year 1965 there was a Notification issued under Section 29 of the Indian Forest Act on 14-4-1964, whereby the entire land had been declared as protected forest. When a protected forest has been declared, government has no right to divest of this protected forest in favour of any individual or the income being divided amongst the State Government and any other private party. Moreover, there is no evidence to the effect that the income evolved from the forest had ever been used for the purpose of development of place of pilgrimages. Chadhawa ease related about the offerings to the tonks and temples. It had no relation with the income from the forest products. The Swetambaries claimed that they were managing the forest as an agent of the Government, has got no force in the eye of law.

207. Not only the terms of agreement regarding division of 60/40 shares regarding the net income is illegal and void but other terms of the agreement arc also not according to the law. For religious sentiments, there is no scope of any divesting by way of settlement or agreement. If the intention of the government to divest would have been there then there must have been some Notification for divesting under the B.L.R. Act which the Government is not authorised to do so. Terming Seth Anandji Kalyanji as full owner of Parasnalh Hill is a sheer lie on the face of it and as such the preamble pan is bad and illegal and when the preamble part is based on wrong foundation and on misconceived fact then the whole terms and condition of the agreement becomes void.

Reference may be made in this respect to AIR 1974 SC 1579 (Jaikishan Dass Mull v. Lucchiminarain Kanoria and Co.).

208. The submission of Mr. Bacchawal that Section 24(3) of the Act does not control Section 13 of the B.L.R. Act has got no substance. Section 24(3) is with respect to the income or any portion of the net income in respect of the estate or tenure held by the trust. Provisions of Section 24(3) runs as follows :

“24(3)– In case where according to the order of the State Government under Sub-Section (2) of Section 21, the trust is genuine and has been acted upon and the net income or any portion of the net income in respect of any estate or tenure held under the trust has been dedicated exclusively to charitable or religious purposes without any reservation or pecuniary benefit to any individual, the compensation payable in respect of such income or such portion thereof shall, instead of being assessed under Clause (1). be assessed as a perpetual annunity equal to such net income or such portion thereof as the case may be provided that where the property dedicated to a trust consists only of mines and minerals, compensation under Section 32, instead of perpetual annuity, shall be payable to the trust. as if it were an intermediary.”

209. The aforesaid Act is a self contained Act with various provisions and the provisions are inter dependent but self explanatory. One of the provision cannot be said to be controlling the other provisions but any action taken on the basis of one provision to be overriding the other provisions cannot be said to he a legal action.

210. Mr. Bacehawat then referred to Section 4(f) of the B.L.R. Act. which runs as follows :

4(f)– The Collector shall he deemed to have taken charge of such estate or tenure and of all interest vested in the State under this Section :

Provided that nothing contained in this Clause or any other provision of this Act shall be deemed to authorise the Collector to take charge of any Institution, religious or secular, of any trust or any building connecting therewith or to interfere with the right of a trustee to apply the trust money to the objects of the trust.”

211. As regards the trust allegedly created by the Swetambaries or a group of the Swetambaries had already been discussed by this Court. At the time of vesting, it might be that under Section 4(f). the temple, tonks and shrines and its surroundings on the top of the hill had not been taken possession of by the Collector physically but every particles of Purasnuth Hill when being vested, the question of the properties related to the Parasnath Hill including that of forest property cannot he considered as not being taken possession of. as the whole Parasnath Hill is a religious Institution as alleged.

I have already mentioned that the whole of the Hill can in no case be considered as a religious Institution or belonging to the trust. The trust came in force at best in the year 1955 only although the Certificate of trust is of a recent date, even after the vesting. Thus Section 4(f) of B.L.R. Act cannot come in aid of Mr. Bacchawat to save the agreement from wrath of law and public policy. It has already been mentioned that there was notification under Section 29 of the Indian Forest Act just prior to arriving of the agreement and when such Gazette Notification as per Section 29(1) declaring the land to be protected forest then there remained no question of de-reserving it and giving it in management of some other person. After such notification being made no question of any agreement arriving at under Section 38(1) of the Indian Forest Act comes in.

212. It has been argued by Mr. Bacchawat that such settlement can be made under Section 38(1) of the Act irrespective of Section 29(1) of the Indian Forest Act. For coming to such agreement first of all. there must be a precondition that the forest land of Parasnath Hill belonged to the ownership of Seth Kalyanji Anandji. which is not there as has been stated earlier. So. the question of giving it to the government for management by the owner does not arise at all by the agreement.

Taking the worst view of the Case that such agreement was with the intention of Section 3811) of the Indian Forest Act then also there is no implementation as required under Section 38(2). there is no official Gazette Notification to that effect. Hence, when Section 38(2) had not been complied with, even if there was an agreement as per Section 38(1) of the Indian Forest Act. it had never seen the light of the day and its validity cannot he there without any Notification under Section 38(2). Hence, this submission of Mr. Bacchawat also has got no force.

213. From the foregoing submissions, it can he very well understood that the agreement arrived at is in violation of Articles 14, 25.26, and 21 of the Constitution of India and the same is violative of Section 23 of the Contract Act as it is against the public policy.

214. Regarding the violation of the different Articles of Constitution of India. I have already discussed on various issues in the foregoing paragraphs and I do not want to reiterate the same. If this agreement is allowed to be retained then it will definitely violate the equal protection of laws to the different persons and communities. Such agreement will also violate Article 25 to the other Sect of Jains or the Jains in general. If a particular sect is given the exclusive right over the religious Institution and giving only the right of worship to the other Sect i.e. Digambaries. it would not protect the freedom of conscious and free professing and practice and propogation of religion by the other Sect.

215. The submission that the rights of Digambars have also been protected after this agreement has been arrived at by a separate agreement in the year 1966 with the Digambaries by the State Government has got no force. When the agreement itself with the plaintiffs, a sect of Swetambars (as according to Mr. R.K. Jain, besides Swetambar MurtiPujak Jain Community, there are even other sub Sects of the Swetambars) it cannot validate the agreement on violation of right of equality for the religious Institution. Moreover, the agreement with the Swetambars being invalid, on similar analogy the agreement later on arrived at with the Digambars by the State Government is also invalid in the eye of law, although that agreement is not a subject matter of this suit. Again Clause regarding 60/4O share in the agreement directly violates Article 27 of the Constitution of India. Thus, in any view of matter, the agreement cannot he said to he legal or having any legal semblance and as such its implementation in no way can he legally enforced as it is against public policy and when it is not enforceable under law then the prayers on the basis of this agreement can in no case be entertained/maintained.

216. Thus, the agreement on the basis of which the suit of the Swetambars had been filed is void and hence it cannot be enforceable by a Court of law.

217. Last submission was of Mr. Bacchawal, to the effect that even if the plaintiffs of Title Suit no. 10 of 1967 are not entitled to get any relief of injunction on the basis of the agreement then their possession over the Parasnath hill can be considered as of adverse possession and on the basis of adverse possession they are entitled to get the relief’s prayed for in the suit.

This submission of Mr. Bacchawat has been vehemently opposed by Mr. R.K. Jain and Mr. Ram Balak Mahto for and on behalf of the Digambaries and by Mr. Eqbal. appearing for and on behalf of the State, to the effect that such sort of plea for the first time before this Appellate Court is an absurd plea and cannot be entertainable and this point cannot be raised by the Appellants-Swetambaries on the ground of estoppel.

218. The suit is merely for injunction without seeking any relief of declaration of title or confirmation of possession and/or recovery of possession. According to Mr. Eqbal. the frame of the suit is barred under the provisions of Section 34 of the Specific Relief Act and he has referred to a decision of the Apex Court as reported in AIR 1972 SC 2685 (Ram Saran v. Smt. Ganga Devi). According to him. in the alternative, even if the suit is maintainable then such plea of adverse possession is not available to the Swetambars as nowhere such plea was ever taken in their pleading nor proved and for the first lime in the Appellate Court such plea cannot be raised. In this connection. (1994) 3 SCC 375 (Tharumal Masjid Hajum Pharosan v. Madarassa Talimul Islam) may be referred to. wherein it was held that a fact which have never been raised in pleadings nor before the lower court, the same cannot be agitated for the first time before the High Court and even if the High Court has given any such finding of such non maintainable plea then also the Supreme Court cannot go to look into such observation of the High Court In AIR 1996 SC 112 (Abubakar Abdul Inamdar v. Harun Abdul Inamdar). it has been specifically held by the Apex Court that plea of adverse possession, if not raised in pleadings then no amount of proof can substitute the pleading which are the foundation of claim to a litigating parly.

219. Here, in the present case, not only a plea has been taken but no evidence has also been adduced regarding adverse possession and not even a word of adverse possession was ever used by any of the witness before the trial court nor it was argued before the trial court and no issue was also framed, hence this plea al the appellate stage cannot be raised for the first time.

220. It is true that plea of adverse possession may be gathered from the materials on record, if it is found that on the basis of the records either of the party, litigating may get the benefit out of it. Here. in the present case, suits have been highly contested by all the parties and nowhere the plea of adverse possession was taken nor any evidence was adduced to that effect. Now, for the first time before the Appellate Court a feeble attempt has been made for adverse possession which cannot be entertained in any way whatsoever. Moreover, from the frame of the suit, it appears that the plaintiffs have not claimed any relief on the basis of their title but on the basis of agreement arrived at with the State of Bihar and such agreement the sole basis on which the reliefs have been claimed has already been field to be void and hence now a completely different plea of adverse possession cannot be taken or such factum of adverse possession, although it is the mixed question of law and fact cannot be taken to be the basis for the purpose of giving relief to the plaintiffs of Title Suit No. 10 of 1967.

221. On factual position also, there is no scope to take that plea. The State Government after coming into force of B.L.R. Act have issued Notification of vesting and for implementation of such vesting all consequential steps Have been taken including that of mutation in the Revenue records. For the purpose of vesting, compensation cases had also been initialed audit is stated in the bar that returns had also been filed by the plaintiffs. Regarding vesting, the plaintiffs raised objection by filing writ petition before the Supreme Court then kept mum and then by surrendering to the State Government they tried to take benefit by way of making illegal agreement. This sort of steps taken from the side of the plaintiff-Swetambaries create an estoppel to take the plea of adverse possession at this stage. Hence, this plea of adverse possession is only an afterthought and cannot be entertained for the first time in the Appellate stage that too having no basis of it.

222. From the above discussions, we arrive at the decision that the whole of the Parasnath Hill had been vested in the State of Bihar under the Bihar Land Reforms Act and possession in other parts of the Hill had been taken of by the State of Bihar as a consequence of such vesting save and except the temples, tonks and shrines and some areas ancillary for the purpose of worship at the top of the hill which might be an area of half a mile radius from the top of the hill and these areas wherein Dharmshalas. rest house etc. had been set up for giving relief to the devotees for the purpose of their worship. On the top of the hill, temples and tonks had not been taken into possession by the State of Bihar as such areas arc protected u/Section 4(f) of the Bihar Land Reforms Act. But. on that area also all the devotees of the Jain Community have got access and there cannot be any particular sect who can debar other in their free exercise of power of worship in the religious Institution. When vesting is there then every particle of the Hill had been vested and there cannot remain any right either of management or control of any of the sects of the Jain Community over the lands at Parasnath Hill, save and except the area as mentioned above which are used as a part of religious Institutional the top of the hill itself. There is no divesting of power by the State Government by Ext. 9/A or Ext. D/l either to Swetambary or to Digambary and as such there is practically no right existing over the land of Parasnath hill either in favour of Digambar or in favour of Swetambaries which can been force able by law. The agreement Ext. 9/A with the Swetambary which is in question has got no enforceability under the law and as such no ancillary relief can flow from such agreement as the contract itself is void.

223. Right of worship cannot be considered as a right of easement. It is an inherent right to every Community to offer their worship as per their belief before the religious Institution and in respect of such right of worship if some Dharmshalas are necessary those are being provided either by a Committee which manages the Institution or by the State Government where the Institution is situated.

Here a plea has been taken from the side of the Swetambaries that they were in management and control over the Parasnath Hill and also the religious Institution consisting of tonks. Mandirs etc.. but by Privy Council decision already some bifurcation has been made between the two Seels and so the whole management cannot be said to be was with Swetambaries alone. It is true that Swetambaries had always fought regarding their right but whole scenario had been changed after Independence and when the Constitution of India came in force and again when the vesting of Zamindaries were taken up in the free India and in the Slate of Bihar through Legislation of Bihar Land Reforms Act. So, the Management of the temple regarding its offerings etc. might be with different Sects of Jain Community in respect of their idols in the top of the hill and for such offerings, there might be necessity for making some arrangements for the purpose of giving proper facilities to the devotees but for the land for providing such facilities both the parties shall have to seek permission from the State of Bihar. which had already taken over the whole Hill by vesting under the B.L.R. Act.

224. Thus the parties fighting for negative declaration or for injunction amongst themselves can have no bearing unless the State of Bihar makes proper provisions for it in consultation with both sects of Jain Community.

225. In Title Suit no. 10 of 1967. the first prayer is for a negative declaration that the Digambars have got no right to put up any building or structures of any kind or anywhere in the Parasnalh Hill.

Such declaration on the face of it in the present context may look like a plausible relief to be given in favour of the plaintiffs of the suit but the fact remains that there is no basis on which such claim can be allowed as the agreement Ext. 9/A has already been held to be a void document and as such they have got no locus standi as has been discussed earlier. They have not claimed for any right over the suit property. They have based their right and interest flowing from the agreement, Ext, 9/A which has already been held by this Court to be void, ineffective and non-enforceable under the law. Hence, when there is no right flowing for such negative declaration then a Court of law cannot give such relief as barred under Section 34 of the Specific Relief Act.

226. The State of Bihar is having the right, title and interest over the vested property under the Bihar Land Reforms Act as already held by this Court and after amendment of the plaint. State of Bihar has also been made a defendant and in the prayer portion no modification has been made separating the State of Bihar and hence such negative declaration sought for is also against the State of Bihar which cannot be allowed. But, it is true that none of the parties i.e. the Swetambaries or Digambaries of the Jain Community can debar either of the parties for any action or non-action. It they are to do anything i.e. to be done only at the consent of the State of Bihar. Although, it is fell that forgiving proper facilities for the devotees not only of the Jain Community alone but for all other devotees. Stale Government is duty bound to make provision for the same and only State Government can do so on the basis of the recent judgment of the Apex Court, as has been given in respect of protection of Vishwanath Temple of Vanarasi and the State Government is duty bound to make provisions for proper management and facilities to protect the Ancient Religious Institution of the Jain Community.

227. It is true that the top of the hill about a half of mile radius area Jain Communities were making provisions for providing facilities for the devotees who come to worship the tonks and temples and also for proper Management of the Institution and that area could not be taken possession of by the Slate Government under Section 4(f) of the Bihar Land Reforms Act and also under the provisions of the new Act i.e. the Places of Worship (Special Provisions Act. 1991). The status of the Religious Institution and place of worship had been properly defined and explained under the new Act. The places of worship under that Act has been defined under Section 2(c) as follows;–

“2(c)– Place of worship means a Temple, Mosque. Gurudwara, Church, Monastery or any other place of public religious worship or any religious denomination or any Section thereof by whatever name called.”

228. The top of the Hill of Parasnath may be of religious character for a particular denomination but because of its ancient nature and the previous litigations and the history, it can be considered not only as of ancient monuments hut a monastery and a Public Religious Institution u/Section 4 of the Act as has been provided that any place of worship existing on the 15th day of August, 1947 shall continue to be the same as it existed on that dale but in the proviso, it has been held that although no suit can lie on the commencement of this Act but any suit or an appeal which was pending shall not abate and the same should be disposed of in accordance with the provisions of Sub-Section (1). So. in respect of Religious Institution within the Parasnath Hill its top shall remain as a place of worship even after vesting of the whole of the Parasnalh Hill under the Bihar Land Reforms Act. Thus, such Institution shall remain as a Religious Institution and for its protection and management. State Government is definitely empowered to make proper provisions for the facilities of the devotees,

229. The other prayers in the suit were with regard to injunction restraining the Digambars in making any construction over the Parasnath Hill. Definitely. Digambar sect of the Jain Community or any other Sect including the plaintiffs have got no right after the vesting of the Parasnath Hill to State Government to make any construction or buildings and such restraint order cannot be sought for by one sect against another sect of the Jain Community. In that view of the matter, no question of injunction can be available in favour of the plaintiffs of Title No. 10 of 1967 and hence no relief, in the present circumstances of the case, can be granted in favour of the plaintiffs of Title Suit No. 10 of 1967 as per Specific Prayers made in the suit.

230. In Title Suit No- 23 of 1968. Digambars have prayed in the first prayer regarding declaration of agreement dated 5-2-1965 to be null and void.

231. I have already mentioned that Digambars being a part of the Jain Community and when the agreement made with the State Government definitely hinges on denial of their right, they can come up for such declaration and when it has already been held that the agreement as contained in Ext. 9/A is not legally valid document and hence such declaration can be granted in favour of the plaintiffs of Title Suit No. 23 of 1968.,

232. The second and third prayer is totally dependent on the first prayer and when the first prayer is available to the plaintiffs, the second and third prayer can also be allowed in favour of the Digambars.

The fourth prayer is an alternative prayer in favour of their second and third prayer. So that

alternative prayer has no effect, when prayer Nos. 1 and 3 are being allowed. Regarding prayer Nos. 5, 6 and 8 on the same analogy, as mentioned above regarding plaintiffs of Title Suit No. 10 of 1967. the Digambars being another Sect having no semblance of right after the vesting cannot have any injunction either in the form of mandatory or restraint. About the prayer No. 6 regarding the other declaration cannot be granted to the Digambars for construction of Dharmshalas or Rest House on the Parasnath Hill as the property belongs to the State Government.

233. Thus, the Title Suit No. 10 of 1967 is dismissed as a whole, while the Title Suit No. 23 of 1968 is decreed to the limited extent of declaration of agreement dated 5-2-65 executed between the Seth Anandji Kalyanji and the Slate of Bihar as null and void.

234. About the last part of the impugned judgment, I am in agreement to with the observations made by the lower Court to the effect that the Jains of the Digambary Sect are getting much trouble in not gelling proper facilities for offering of Puja by the devotees for lack of Dharmshalas and Rest Houses.

For that, they can make a representation before the State Government and the State of Bihar. as already mentioned above, has got the bounden duly to make provisions for proper management and facilities in the Religious Institution on the lop of the hill covering half a mile radius area but in the facts and circumstances of the case and the history. I could find that the State of Bihar is also not coming with proper advice regarding the protection of the Religious Institution. Both sects of the Jain community are financially affluent and Slate Government for the purposes known to them made agreements with the Sects separately. It is my feeling that until and unless a proper scheme is made for the proper management of the Religious Institution and the facilities of the devotees, there would be no end of litigation between different seels of the Jain Community because of their narrow and sectarian views and the way the cases are bing fought, it could he found that such fighting is not for the religious faith but for egos of superiority or inferiority complex of one against the other. This sort of litigations between the two Sects practically diminishes the religious faith and sanctity and gives way to the third parly to poke its nose.

235. A suggestion is being made from this Court which was done at the very early stage of hearing of the appeals that a Committee be formed by the State Government wherein both the Sects or other Sects of Jain Community should be well represented and then prepare a scheme acceptable to all for proper management of the Religious Institution. But that sugestion was not readily acceptable and hence the appeals were heard in details. I still reiterate my feelings about the formation of Committee and then prepare a scheme as lo how the Institution could be saved from further litigation and for its proper upliftment and facilities lo its devotees with all other paraphernalias required for the purpose.

236. Thus, the Appeals are disposed of by selling aside the impugned judgment and decree with only a declaration that the agreement arrived at between a Sect of the Jain Community and the State Government on 5-2-1965 as null and void.

In the nature and circumstances of the case no cost is awarded to either of the parties.

237. Although M.J.C. No. 265 of 1991(R). M.J.C. No. 224 of 1993 (R). Civil Revision No. 413/1 992(R). Civil Revision No. 475 of 1992(R). Civil Revision No. 476 of 1992(R) and Civil Revision No. 477 of 1992(R) had been listed along with these appeals for the purpose of disposal, but after the appeals had been argued by the learned counsel for all the parties, had submitted that the result of the Appeals is in direct relevancy with those cases and as such they debar themselves from arguing those cases. Now. when the appeals are being disposed of those can be listed for the purpose of hearing before an appropriate Bench.