- (1.) This is a first appeal by the plaintiffs. The plaintiffs belong to the Udasi sect and as such allege that they worship in the Dharamshala (also referred to sometimes as the Haveli), a part of which has now been alienated by Narendra Das, the mahant of Gaddi Shanter Shah defendant No. 1 and one Kesho Chandra defendant No. 2. The plaintiffs alleged that the said Dharamshala contains the samadhi of Baba Pakhatmal, the founder of Gaddi Shanter Shah, which Samadhi is the object of worship by the members of the Udasi sect. The said Dharamshala is, according to the plaint, managed by the Mahant of Gaddi Shanter Shah to whom it is entrusted but it is not a part of the said Gaddi bat is a separate endowment. The plaintiffs alleged that the sale deed dated the 14th Juno 1945 executed by defendants Nos. 1 and 2 (the second defendant is alleged also to be a trustee appointed by a Certain committee to look after the affairs of Gaddi Shanter Shaha) of a part of the Dharamshala aforesaid in favour of defendants Nos. 3 and 4 in lieu of Rs. 1,50,300/- is invalid and not legally enforceable because (1) the Dharamshala aforesaid does not appertain to Gaddi Shanter Shah and is not a, part of the Gaddi, (2) is inalienable, (3) the defendants Nos. 1 and 2 were not! competent to alienate any part of the Dharamshala, (4) there was no legal necessity for selling the aforesaid Dharamshala to defendants Nos. 3 and 4 and (5) the portion sold was very valuable and was sold for inadequate consideration. The plaint sets out that the aforesaid sale deed was executed to pay off a mortgage decree in suit No. 66/1935 obtained by Panchayati Akhara Kalan Kankhal against Mahant Saheb Das, a predecessor of defendant No. 1. It is alleged in the plaint that Saheb Das was not entitled to execute the aforesaid mortgage deed dated the 1st June 1933 on the basis of which the decree was passed in suit No. 66 of 1935 (Ex. A-16) on December 21, 1935. The plaintiffs denied the consideration, as also the validity of the said mortgage deed and alleged that it was not for legal necessity. The plaint sets out that defendant No. 1, along with two other persons, filed a suit under O. 1, Rule 8 C. P. C. being suit No. 3 of 1943 against the Panchayati Akhara Kalan Utlasiyan on February 3, 1943 (plaint Ex. 17) in which suit the said mortgage deed was challenged on the very grounds which have been taken against the said deed in the present suit and that the suit was dismissed but that the decree of dismissal dated the 7th December 1944 is of no effect because it proceeded on a compromise which was without the sanction of the court and the compromise itself was as a result of collusion.
(2.) Shortly put, therefore, the plaint, in the first instance attacks the very foundation of the impugned transaction. The relief sought by the plaintiffs was for a declaration that the Dharamshala is a waqf property and is not transferable and that the sale deed dated the 14th of June, 1945 aforesaid is inoperative and defendants Nos. 3 and 4 have derived no title or interest under the said deed.
(3.) A common written statement was filed by defendants Nos. 1 to 4. It was pleaded that the Dharamshala was a part of Gaddi. Shanter Shah, that the mortgage deed was not invalidated on any of the grounds set out in the plaint and that the said mortgage deed dated the 1st of June, 1933 was for consideration and Saheb Das, the then Mahant who executed it, was fully competent to execute it and the deed was, in every way, binding on the said Gaddi. It was also pleaded that the decree passed in suit No. 66 of 1935 created a binding debt against the Gaddi and that the impugned sale deed was executed in order to save a substantial part of the Dharamshala from passing out under an auction-sale held in execution of the said decree No. 66 of 1935 and that the impugned alienation was of a protective character and was for the benefit of the estate and that, therefore, the impugnd alienation was fully for legal necessity. The decree passed in suit No. 3 of 1943 was also pleaded as being res judicata and as having disposed of the question of the validity of the mortgage deed, dated the 1st of June, 1933 in favour of the Gaddi, the impugned sale deed was executed to pay off the decree in suit No. 3/1943 obtained on the basis of the aforesaid mortgage deed. The decree in that suit No. 3 of 1943, it was pleaded, disposed of also the question of the validity of the impugned transfer of the 14th of June, 1945. The decree in suit No. 3 of 1943 was, therefore, pleaded as res judicata, in the present suit.;