Decided on April 16,1973



- (1.) THIS appeal arises out of a restitution proceeding under Section 144. Civil P. C. The facts leading to this proceeding are recounted herein-below. Sri Radhakanta Mahaprabhu, a deity represented by its trustee and Archak banchhanidhi Das as plaintiff No. 1 and Banchhanidhi Das as plaintiff No. 2 instituted a suit for declaration that the second plaintiff's forefathers were the hereditary Archaks of the plaintiff No. 1 and that in due course of succession the hereditary Archakship has come to vest in the plaintiff No. 2. Further declaration was sought that the defendant No. 1 has no manner of right, title or interest in the deity's properties or in the institution. There was a recital in the plaint that plaintiff no. 2 was in possession of the deity's properties as such hereditary Archaks. Defendant No. 1. who mainly contested the suit put forward a defence that his father was the Dharmakarta and had endowed the lands to the deity and that plaintiff No. 2 was only a paid Archak with no hereditary right. The trial Court dismissed the suit on 12-1-1961 An appeal was carried before the District Judge. That appeal was filed on 8-3-1961 and numbered as T. A. 31/61. During the pendency of this appeal, the defendant No. 1 locked the temple on 17-3-1961 and thereby ousted plaintiff No. 2 from it. Subsequently the District Judge issued an interim order of injunction on 30-3-196! which was made absolute on 10-4-1961 after hearing defendant No. 1 who took the plea that he had already dispossessed the second plaintiff during the first week of February, 1961. that is to say, before filing of the T. A. 31/61 and as such the plaintiff was not entitled to an order of injunction. Defendant No. I moved this Court in M. A. 43/61 against the order of the District Judge granting injunction against him. M. A. No. 43/61 was allowed on 9-9-1963 and the injunction order of the District Judge was vacated on the ground that the plaintiff No. 2 being already out of possession on the date of his application for injunction was not entitled to recover possession under the guise of an injunction order. This is what this Court said : "the judgment of the learned District Judge cannot stand both on fact as well as in law. On the admission of plaintiff No. 2 that on 17-3-1961 he was dispossessed it was within the jurisdiction of the learned District judge to grant an order of injunction. Injunction is primarily a relief against possession, and the party continuing in possession can only ask the Court to issue an order of injunction against an interference with possession. If on 17-3-1961 plaintiff 2 was dispossessed on his own allegation, if not earlier as alleged by defendant No. 1 (Defendant No. 1 alleged dispossession in first week of February. 1961) no relief by way of injunction either under Order 39, or under Section 151, Civil P. C. can be granted. This is sufficient to dispose of the application. " t. A No. 31/61 was dismissed on 29-9-1964. Plaintiff then filed S. A. No. 24/65 which was disposed of on 17-12-1969. The affirming decree of the lower appellate court was modified to the limited extent that a declaration was given that plaintiff no. 2 was the hereditary Archak. The other finding that defendant No. 1's forefathers were the Dharmakarta of the religious institution was upheld.
(2.) THE plaintiff No. 2 filed an application under Section 144, Civil P. C. on 16-31971 which was registered as M. J. C. No. 51/71'. He claimed Rupees 9341. 50 p. Equivalent Citation: as computed in para. 4 of his restitution petition towards his arrear dues and recovery of possession of the office of Archakship by way of restitution and for costs. The original defendant No. 1 in this suit died at the stage of second appeal and his legal representatives had been substituted. These legal representatives contested the restitution proceeding on the ground, inter alia, that since the reliefs claimed by way of restitution were not the benefits received by the defendant No. 1 under any erroneous judgment, the obligation to restitute did not arise.
(3.) THE Munsif allowed the restitution of plaintiff No. 2's former possession under section 144, Civil P. C. but reiected the reliefs for arrear dues and costs as they were not determined in the suit. He, however, left those questions open for consideration during execution proceedings.;

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