MUDHOLKAR - (1.)THIS is an appeal on a certificate granted by the High Court of Calcutta under Art. 133 (1)(a) and (b) of the Constitution by the first defendant to the suit, Sree Sree Kalimata Thakurani of Kalighat represented by her next friend Manik Lal Mukherjee.
(2.)THE suit out of which the appeal arises was instituted by the plaintiffs who are respondents 1 to 5 to the appeal, under S. 92 of the code of Civil Procedure for the purpose of framing a scheme for the proper management of the seva puja of Sree Sree Kalimata Thakurani and her associated deities and, for the proper management of the properties, declared to be debuttar proparties in a previous suit. THE District Judge, Alipur in whose Court the suit had been instituted settled a scheme with respect to the aforesaid matters but upon appeal by the appellant the High Court amended that scheme. THE main grievance of the appellant in this appeal is regarding certain amendments to the scheme made by the High Court.
According to Mr. Bhattacharji, learned counsel, for the appellant, the amended scheme is defective in four respects. He contends that in the first place the scheme does not specify that 595 odd bighas of land of Kalighat are also debuttar property. In the second place it was not proper to include any shebait at all in the managing commit- tee of the endowment. Then according to him the provision made in the scheme with respect to the remuneration of the shebaits is wholly improper. Finally, that the scheme is defective as it does not make any provision reserving liberty to the parties to apply to the District Judge for directions.

Taking the first point, the direction made by the High Court in the scheme with respect to the properties belonging to the deity is as follows:

"The properties enumerated in Schedules A and B belong to Sree Sree KaliMata Thakurani and the associated deities of Kalimata together with such other properties as may be acquired by purchase, dedication, gift or as offerings or in any manner whatsoever are hereinafter called the Debuttar. Estate and appertain to a Hindu Public Religious Endowment. Any other property which may hereafter be found by a competent Court to belong to the Deity will a so be part of the Debuttar Estate".

Mr. Bhattacharji points out that 595 odd bighas of land in Kalighat which belong to the deity are not enumerated in either schedule A or B & says that the shebaits and their predecessors in interest, laying claims to this land, have alienated more than 90 Per Cent of it. The shebaits being, merely trustees of the deity cannot be permitted to assert a claim adverse to the deity and any alienations made by them are not binding on the deity. According to him the title to these lands still remains with the deity, and therefore, they should have been mentioned at least in a separate schedule to the scheme as being the properties of the deity. On the question whether these lands belong to the deity or not there is a dispute between the parties before us. The shebaits whom Mr. Viswanatha Sastri represents deny that these lands belong to the deity and said that they were granted to the shebaits for worshipping the deity and maintaining the temple etc. In our opinion in a suit for the settlement of the scheme for the management of a temple it is not appropriate for the court to investigate questions of title to property about which there is dispute.

(3.)MR. Bhattacharji then refers us to a previous litigation to which the deity was a party and in which the question of the deity's title to the lands in question was raised. The decision of the High Court in that case was reported in Iswari Kalimata v. Manager, Bijni Raj Court of Wards Estate, ILR (1949) 2 Cal 587. In particular he relies upon two observations contained in that judgment of the High Court. The first was at p. 593 (of ILR Cal) : and runs thus:
"The rubokari shows that the shebaits who took part in those proceedings made unqalified admission that the whole of 595 big as 9 cottas mentioned in MR. Heysham's list was the absolute debuttar property of the Deity".

And then the other observation at pp. 593- 594 (of ILR Cal.) :

"There are documents from 1842 onwards showing transfers by the Haldars of some items of property included in Heysham's list. But, in our opinion, those acts cannot outweigh the evidence, which we have discussed, which establish almost conclusively that the lands released from the resumption proceedings were the Deity's absolute property. These transfers by the Shgbaits can only be regarded as breaches of the trust on their part."

On the basis of these observations learned counsel contends that the deity's title to the 595 bighas being beyond dispute, at any rate so far as shebaits are concerned, it would be only fit and proper to specify them along with other property. He admits that most of these lands have passed out of the hands of shebaits but he says that the managing committee would be able to recover them easily by instituting suits if they are included in the schedule to the scheme. It seems to us, however, that the provision made by the High Court in the scheme with respect to properties other than those described in Schedules A & B to the plaint is sufficient for that purpose. We may also point out that in another litigation to which the deity as well as some of the shebaits were parties, the subordinate judge had granted a declaration of the deity's title to these very lands but that declaration was set aside by the High Court. The reasons given by the High Court for setting it aside are stated thus :

"The parties had led evidence bearing upon the question of title to that area. That defect could have been removed even now by allowing the plaint to be amended at this stage. But the plaintiff cannot have the declaration because all persons who would have been affected by the declaration are not before the Court, not being made parties at all. It is the common case of the parties that most part of that area has been sold to outsiders. These transferees are not parties to the suit, and defendants 1 to 13 cannot represent in the suit these outsiders, for according to the plaintiff they were sued on the footing that they were to represent only the shebaits of the deity and none else. It is of fundamental importance that a Court should not make a declaratory decree which would be useless. We accordingly discharge that part of the decree by which he declared the title of the deity Sri Sri Kalimata to the whole of the said area of 595 bighas and 9 cottahs odd of land."

As we have already stated the bulk of the lands are in the hands of transferees who are not parties to the proceeding under S. 92 of the Code of Civil Procedure and of course are not parties to the appeal either. Their inclusion in the schedules to the scheme as being debuttar property will d not affect the rights of those persons in any way and the fact that they are debuttar properties will have to be established if and when appropriate proceedings are taken for obtaining their possession. We, therefore, decline to interfere with the direction made by the High Court in the scheme respecting the properties.

Mr. Bhattacharji then contends that the present shebaits are not de jure shebaits but only de facto shebaits and that, therefore, they have no right to be included in the managing committee. Referring to the pedigree appended to the appellant's Statement of the case he pointed out that the first shebait about whom anything is known was Brahmananda Giri, a sanyasi and upon his death he was succeeded by his chela Atmaram Brahmachari, also a sanyasi. This person in his turn was succeeded by his chela Ananda Giri who was succeeded by his chela Bhubaneswar Giri. After succeeding to the shebaitship Bhubaneswar Giri gave up sanyasa & married a Bhairavi, Smt. Jogmaya, from whom he had a daughter Smt. Uma. The present shebaits are the descendants of Smt. Uma. According to him only a sanyasi could be a de jure shebait of the deity and that though the plaintiffs-respondents and their ancestors have been functioning as shebaits, they could in law only be de facto shebaits and not de jure shebaits. Whatever that may be, we cannot ignore the fact that the present shebaits and their predecessors have been functioning as shebaits for a very long period and their rights in that regard have not been called in question ever before. In these circumstances we cannot accept the contention of learned counsel that they should be completely excluded from the management of the temple.