- (1.) G. P. Mathur, J. This is a defendants appeal against the judgment and decree dated 3-12-1976 of IInd Addl. District Judge, Bareilly, by which the appeal preferred by the plaintiff was allowed and the suit for cancellation of the sale-deed dated 27-5-1969 and for possession was decreed.
(2.) SRI Thakurji Maharaj, Birajman Mandir, Gauntia Mazra Dhamipur through Baba Sam Ram Das Chela Baba Narain Das filed O. S. No. 60 of 1971 against Kunwar Singh and seven others for cancellation of the sale-deed executed by Jangannath Das in favour of the defendants on 27-5-1969 and for possession over the land in suit situate in village Gauntia Mazra Dhamipur Pargana and Tehsil Nawabganj, District Bareilly. The case of the plaintiff was as follows. One Thakur Johda Singh resident of village Gauntia Mazra Dhamipur Pargana Nawabganj, District Bareilly was a Zamindar and he constructed a temple in his village and installed a deity of SRI Thakuji Maharaj in it after performing all religious ceremonies. Thakur Jodha Singh had no issues and in his life-time, he endowed his entire Zamindari property in favour of the plaintiff and created a public trust by means of a registered waqf deed dated 24-10-1934 for the maintenance and up-keep of temple and for "arti and bhog" expenses etcs. One of the conditions of the waqf deed was that no person shall have any right to sell or mortgage the property endowed in favour of the temple. He remained the manager of the temple till his life-time and after his death Ganga Nandan Chela Brahma Nandan became the manager of the temple. The present Mahant and servarakar of the plaintiff is Baba Sant Ram Das and prior to him Jagannath Das was acting as Mahant and sarvarakar. Jagannath Das executed a sale deed of the endowed property measuring 33 bighas 18 biswas, detailed at the foot of the plaint, in favour of the defendants on 27-5-1969 for a sale consideration of Rs. 30,000. After the creation of the waqf the land in suit was recorded in the name of the plaintiff SRI Thakurji Maharaja in the revenue records and used to be cultivated by the manager and sarvarakar of the temple on its behalf. During the period Ganga Nandan was the sarvarakar, Jagannath Das who neither resided in the village where the land in suit is situate nor was in possession thereof got his name recorded over the same in the Khasra with the connivance of the Lekhpal. When Ganga Nandan came to know about it, he moved an application in the form of an objection before the S. D. O. Nawabganj under Section 240-G of U. P. Z. A. and L. R. Act against Jagannath Das in compensation proceedings which was registered as Case. No. 157-A of 1957. In the said case, Jagannath Das appeared and a compromise was filed by the parties on 21-12-1957 wherein Jagannath Das admitted the title of the plaintiff and further agreed to manage the land in dispute as Mahant of the temple without any right to sell or mortgage the property. The compromise was duly recorded and the proceedings were decided in terms thereof. The compromise was acted upon and Jagannath Das continued to the Mahant and sarvarakar of the plaintiff with effect from the date of the decision of the case and used to manage the land in suit on its behalf. Subsequently he became dishonest and any how he managed to get the land in suit recorded in his personal name in the revenue records fraudulently though it was a trust property. This position continued without the knowledge of anybody else and after obtaining bhumidhari sanad, he executed the impugned sale deed in favour of the defendants. When the true facts came to light, Jagannath Das was removed from the Mahantship of the plaintiff by the Hindu public of the village and Baba Sant Ram Das was appointed as the Mahant and sarvarakar thereof. Jagannath Das died in January, 1971. The property of the plaintiff by its very nature and in terms of original waqf deed is unaliabble. Jagannath Das had no right, title or authority to execute the sale-deed thereof. The case of the defendants as set out in the written statement is as follows. There is a temple of Sri Thakurji Maharaj in village Gauntia Mazra Dhamipur Pargana and Tehsil Nawabganj, district Bareilly and that Thakur Jodha Singh was a Zamindar. Jagannath Das was sirdar and in possession of the land in suit in his personal capacity and his possession was not on behalf of the plaintiff. During the Consolidation proceedings he was declared as sirdar thereof and in C. H. Form 45, his name was recorded as sirdar which became final as no objection was filed by anybody else. Thus the suit is barred by Sections 27 and 49 of the U. P. Consolidation of Holdings Act (for short U. P. C. H. Act ). Jagannath Das was not the sarvarakar of the temple and his possession was adverse, he acquired bhumidhari sanad by deposit ing the requisite amount and thereafter executed the sale-deed in favour of the defendants. The Civil Court had no jurisdiction to try the suit as the issue involved was one for declaration of title which could be done by the revenue court alone. The suit was barred by limitation. Thakur Jodha Singh did not construct the temple nor could create waqf in favour of the temple. Mahant Sant Ram Das was not the Mahant or sarvarakar of the plaintiff and Jagannath Das also never acted as sar-varakar of the plaintiff. On the pleadings of the parties, a large number of issues were framed by the trail court. The learned Addl. Civil Judge after considering the evidence adduced by the parties recorded the following findings. The suit filed on behalf of Sri Thakurji Maharaj through Sant Ram Das was maintainable and was not barred by Section 91 or under Order 1, Rule 8, C. P. C. Jagannath Das was never sarvarakar or manager of the plaintiff. Thakur Jodha Singh executed a waqf deed in favour of the plaintiff on 22-10-1934 and the plaintiff became owner of the property in suit. Sri Thakurji Maharaj was recorded as bhumidhar but subsequently Dheeram Das acquired ad-hivasi rights and became sirdar of the land in suit. On his death, Jagannath Das as his heir became the sirdar thereof. The deity cannot be regarded as minor by any stretch or imagination as contemplated by Section 157 of U. P. Z. A. and L. R. Act and its position was different. Ganga Nandan took compensation in proceedings under Sec tion 240-G of U. P. Z. A. and L. R. Act and Jagannath Das became sirdar of the land in suit. During the consolidation operations, he was declared as sirdar and therefore the suit is barred by Sections 27 and 49 of U. P. C. H. Act. Jagannath Das had there fore right and title to execute the sale-deed in favour of the defendants. The suit was barred by limitation as plaintiff was not in possession within 12 years. The defen dants were bonafide purchaser for value. On these findings the suit was dismissed on 30-4-1974.
(3.) IN the appeal preferred by the plaintiff, the learned IINd Addl. District Judge recorded the following findings. The suit was maintainable on behalf of the deity Sri Thakurji Maharaj by Sant Ram Das. Dheeram Das did not acquire any adhivasi rights, Jagannath Das was not the Chela of Dheeram Das and his name had been fictitiously recorded in the revenue records, nor he was in possession-over the land in suit. IN proceedings under Section 240-G of U. P. Z. A and L. R. Act, a compromise was arrived at wherein it was agreed that Jagannath Das will act as Mahant and look after and manage the affairs of the temple including cultivation of the entire land but would have no right to sell or mortgage the same. IN the compromise Jagannath Das had given up his rights and title, if any, over the land in suit. Ganganandan had not received compensation. Jagannath Das had accepted to become Mahant of the temple. No compensation statement was prepared nor was it finalised as provided under Section 240-K of U. P. Z. A. and L. R. Act and therefore Jagannath Das was never declared as sirdar or adhivasi and consequently he had no right to acquire bhumidhari sanad or to become bhumidhar of the land in suit. Since Jagannath Das got the property as Mahant of the temple, he could not claim any adverse interest to the same. He had therefore no right or title to execute sale deed in favour of the defendants. The suit was not barred under Section 27 or 49 of U. P. C. H. Act. The land in suit is inalienable trust property, and was not the private property of Jagannath Das. The suit was not barred by limitation. The defendants were not bona fide purchaser for value and cannot claim any benefit under Section 41 of the Transfer of Property Act. On these findings, the appeal was allowed, the judgment and decree of the trial court was set aside and the suit was decreed for a cancellation of the sale deed dated 27-5-1969 executed by Baba Jagannath Das in favour of the defendants and also for possession of the plaintiff after ejectment of the defendants. I have heard Sri Subodh Kumar for the defendant-appellants, Sri G. N. Verma for the plaintiff- respondent and have gone through the record. Before dealing with the contentions raised by the learned counsel for the appellants, it will be convenient to first refer to the proceedings under Chapter IX-A of U. P. Z. A. and L. R. Act relating to conferment of Sirdari rights on adhivasis. Both the courts below have placed great reliance on these proceedings but have deferred as to the effect of the proceedings and also extinguishment of the rights of the parties. Ganga Nandan, the erstwhile Mahant and sarvarakar of the plaintiff, on coming to know about the entry of the name of Jagaanath Das in the khasra, moved an application in the form of an objection before the S. D. O. Nawabganj, Bareilly in proceedings under Section 240-G of U. P. Z. A. and L. R. Act in compensation proceedings case No. 157-A of 1957. In the said case, a compromise was filed by Baba Ganga Nandan Chela Sri Brahama Nandan and Baba Jagannath Das Chela Sri Narain Das. A certified copy of the compromise which is in Hindi was filed in the trial court and was Ex. 7 on the record. The compromise deed has been reproduced in the judgment of the learned Addl. District Judge as translated into English, which reads as follows: "it is humbly submitted that parties have compromised. Ganga Nandan will have no objection if his case is rejected and if compensation is paid to Ganga Nandan in terms of the compromise as follows: (1) That Baba Jagannath Das will look after and manage the cultivation of the entire land, but would have no right to sell or mortgage it. (2) That the entire income from cultivation shall be spent on the necessary expenses of the temple of Sri Raghunath Ji situated in Mauza Gauntia Dhamipur, Tehsil Nawabganj by Baba Jagannath Das and he shall properly look after and manage the temple in the capacity of its Mahant. (3) That Baba Ganga Nandan the erstwhile sarvarakar of the temple would not object to the management and the Mahantship of Baba Jagannath Das who would have full control and right to manage the temple affairs. (4) That the expenses of food and clothes of Sri Ganga Nandan would be the respon sibility of Baba Jagannath Das and it would be his duty to see that in his old age Baba Ganga Nandan is not put to any trouble and is properly looked after during his sickness etc. (5) That the public of Mauza Gauntia Dhamipur have the right to lawfully remove the Mahant and sarvarakar in case of any mismanagement of the temple etc. by them. ";