B.C.RAY, J. - (1.) This is an application for stay of operation of the order made on 17th May, 1984 by Mrs. Khastgir, J. as well as stay of an further proceedings in the application for transfer filed under Cl.13 of the Letters Patent read with S.24 of the Code of Civil Procedure being Matter No. 490 of 1983 pending the hearing of the appeal. The appeal was filed against the said order dated May 17, 1984 whereby the respondents were restrained by an order of injunction from giving effect to the purported two deeds dated 7th July, 1976 and/or acting as shebaits under the said deeds in respect of the said properties No. 70B, Rash Behari Avenue, Calcutta or the property at Mayapur Srichaitanya Math situate at Mayapur. There was a further order restraining the respondents from having their names mutated in the records of the settlement department and also restraining them from filing up the disputed vacancy caused by the death of the shebaits. In the meantime the respondents were also directed under order of this Court to carry out daily seva puja only. There was also an order of injunction restraining the petitioner also from having their names mutated with the records of the settlement department till further order of the Court.
(2.) The respondent No. 1 and its office bearers respondents Nos. 2 to 11 instituted a suit in this Hon"ble Court being Suit No. 939 of 1978 against the appellants and the respondents Nos. 12, 13 and 14 claiming the following reliefs. (A) A declaration that the plaintiffs Nos. 2 to 11 and the defendants Nos. 7 to 11 are the only members of the lawfully constituted governing body of the plaintiff No. 1 and as such are solely and exclusively entitled to remain in control, possession, custody, management and administration of plaintiff No. 1 and of its temples, maths, lands and buildings and other properties and affairs including the said Srichaitanya Research Institute if necessary. (B) A further declaration that the defendant Nos. 1 to 6 have no right, title or interest either in respect of the plaintiff No. 1 or its temples or maths or lands or buildings or any other assets or affairs of the said Srichaitanya Research Institute and have no right to manage, administer, control the same. (C) A permanent injunction restraining the defendants Nos. 1 to 6, their servants and agents from interfering in any way with the rights, powers and functions of the governing body of plaintiff No. 1 in connection with the management, control, administration, custody and possession of plaintiff No. 1 and its temple, maths, lands and buildings, properties assets etc. including the said Srichaitanya Research Institute, in any way interfere with the daily seva puja and periodic festival of Sri Gour Sundar Daitya Kunja Jew located at No. 70B, Rash Behari Avenue, Calcutta-26, from selling, letting out, encumbering, making any new construction or in any manner dealing with the property assets, lands, buildings and funds of the said Debutter estate including those of Mayapur Srichaitanya Math and Srichaitanya Research Institute as well as for other reliefs. In the said suit the plaintiffs made an application for appointment of Receiver and injunction and obtained an interim order of injunction in terms of prayers 2 and 3 of the said notice of motions. The said application came up for hearing before Mrs. Padma Khastgir, J. on 27th Jan. 1979. The learned Judge after hearing the learned Advocates for both the appearing parties passed the following order. "Mr. Chatterjee's clients will produce the original deeds dated 7th July, 1976 to be kept under the safe custody of the Registrar O.S. till further order of this Court. Both the parties are given liberty to take out an application for the purpose of examination of the said documents by experts. There will be an order of injunction restraining the respondents from in any way dealing with or disposing of the properties belonging to the said math save and except in the usual course of performing the seva puja. Mr. Chatterjee's client will keep a separate account of daily offerings in respect of the said math and should also keep a separate account of the sale of the books and photographs. Mr. Banerjee's client is given liberty to take out an application for forming a board of management on proper materials. All other interim orders are vacated." Thereafter, the defendants who are the appellants in the instant appeal made an application for revocation of leave granted under Cl.12 of the Letters Patent under S.92 of the Code of Civil Procedure on the ground, that no part of the suit properties was situated within the jurisdiction of this Hon"ble Court. This application after hearing was rejected by the learned Judge by an order dated 11th Dec. 1979. Against that order an appeal was preferred being Appeal No. 453 of 1979. The said appeal came up for hearing before the Appeal Bench and their Lordships the Hon"ble Mr. Justice M.M. Dutt and Hon"ble Mr. Justice Monoj Kumar Mukherjee after hearing were pleased to make an order on 22nd April, 1983 whereby the said appeal was allowed and the leave was revoked holding that this Court had no jurisdiction to try and entertain the said suit being No. 939 of 1978. Their Lordships further directed to return the plaint to the advocate on record of the plaintiffs for presentation in proper Court. On 3rd June, 1983 respondents Nos. 1 to 11 presented the plaint before the 9th Subordinate Judge at Alipore and this was registered as Title Suit No. 60 of 1983. On 4th June, 1983 an application was made in the said suit by the plaintiff for the following reliefs, (a) An injunction be issued restraining the respondents Nos. 1 to 6 and their servants and agents from: (i) Interfering in any way with the rights, powers and functions of the said Governing Body of the petitioner No. 1 and the petitioners in connection with the management, control, administration, custody and possession of the petitioners, assets and affairs including the said Srichaitanya Research Institute; (ii) In any way interfering with the daily seva puja and the periodic festivals of the deities Sri Sri Guru Gauranga Gandharbika and Giri Dhari Jew; (iii) In any way interfering with the daily seva puja and the periodic festivals of the deities Sri Guru Sri Gour Sundar Sri Radha Dayita Kunja Behari Jew located at No. 70B, Rash Behari Avenue, Calcutta-26. (iv) Selling, letting out, encumbering or in any manner dealing with any of the properties, assets, lands, buildings and funds of the said Debutter Estate including those of Mayapur Srichaitanya Math and Sri Chaitanya Research Institute; (v) An injunction be issued restraining the respondents Nos. 1 to 6 and each of them and their servants and agents from claiming or usurping the office of Shebait or any other right or title or interest by virtue of or under or in terms of the alleged two Deeds of Appointment both dated the 7th July, 1976. (c) A further injunction in such other terms and to such other effect as may be deemed necessary in the facts and circumstances of this case. - (d) Ad-interim orders in terms of the above prayers. (e) Such further or other order or orders be made and directions be given including the direction as to costs of this application as may be deemed fit and proper. On hearing the learned Advocate for the plaintiff the learned Subordinate Judge directed the defendants Nos. 1 to 6 to show cause within the seven days from the date of receipt of the notice why the application for temporary injunction will not be allowed and passed an ad interim order of injunction restraining the defendants 1 to 6 from dealing with or disposing of the properties of the suit belonging to Sri Chaitanya Math seva and except in the usual course of performing the seva puja until further orders. Defendants 1 to 6 were further restrained from taking the original documents, that is, the two deeds of appointment dated 7th July, 1966, (1) one letter written by S. Brahmachari, defendant No. 3 to Sajjan Maharaj, defendant No. 4, dated 14th Sep. 1976 and original forensic report of Forensic Research Laboratory from the custody of the learned Registrar, O.S. Calcutta, High Court, Calcutta till further order. The application was fixed for hearing on 4th July, 1983. It appears from the order, annexed as Annexure "B" to the instant application for interim order filed in the appeal that after the defendants filed their affidavit-in-opposition to the petition under O.39 Rr.1 and 2 of the Code of Civil Procedure the plaintiffs took adjournments on several occasions as will be evident from the order No. 13 dated 6th Feb. 1984, order No. 14 dated 14th Sep. 1984, order No. 15 dated 19th March, 1984, order No. 17 dated 3rd May, 1984, and as such the said application for temporary injunction could not be finally heard by the learned subordinate Judge at Alipore. In the meantime on 7th May, 1984 the plaintiff filed an application under Cl.13 of the Letters Patent for transfer of the said Alipore suit to this Hon"ble Court. The said application was heard by R. N. Pyne, J. who was pleased to issue a Rule and make an ad interim order directing stay of all further proceedings of Title Suit No. 60 of 1983. The Rule was made returnable on 17th May, 1984. The said Rule was served only on the petitioners. The Rule, it was stated, was never served on respondent Nos. 12, 13 and 14. On the returnable date, that is, on 17th May, 1984 the application appeared in the list before her Lordship Hon"ble Mrs. Justice Padma Khastgir and her Lordship was pleased to make further interim order as stated hereinbefore. It is against the said order passed by Her Lordship on 17th May, 1984 that the instant appeal has been filed.
(3.) Before proceeding to consider the merits of the contentions raised on behalf of the appellants as well as of the respondents it is pertinent to state herein certain relevant facts relating to this appeal. The property viz. Sri Chaitanya Math at Mayapur was established by Prabhu Pada Sri Bhakti Siddhanta Swarasti Goswami Thakur who took Sanyas at his house of Mayapur and installed the deities Sri Guru Gouranga Gondharbika Giridhari Jew in his house which is later named Sri Chaitanya Math and appointed his three disciples viz. Kunja Behari Bidya Bhusan, Pramananda Bidya Ratna and Ananta Basudev Brahmachari as shebaits of the deities of the said Math. In 1925 Prabhu Pada executed his will appointing his aforesaid three disciples as executors to carry out the seva puja of the said deities and to maintain his maths and temples. On 1st Jan. 1937 Prabhu Pada expired. In a suit instituted by Kunja Behari, the trust was declared to be a public charitable trust by order dated 23rd May, 1938. On 25th April, 1940 the will was probated. Thereafter there were dissensions between the shebaits Kunja Behari Bidya Bhusan and Pramananda Bidya Ratna on the one side and the Ananta Basudev Brahmachari on the other side covering the management Ananta Basudev Brahmachari and his disciples and Supporters registered a society named "Vandiya Mission" (Gaudiya Mission?) and they claimed all Debuttar properties as belonging to the society thereby denying the right, title and interest of the shebaits and executors Kunja Behari Bidya Bhusan and Pramananda Bidya Ratna. In 1940 suit No. 2159 of 1940 was filed by the executors Kunja Behari Bidya Bhusan and Pramananda Bidya Ratna against Ananta Basudev Brahmachari for possession of the trust property and for a declaration that Gaudiya Mission had no right or interest therein. The said suit was filed in the Original Side of this Court after obtaining leave under cl.12 of the Letters Patent. On 17th Feb. 1948 a consent decree was made whereby the properties in Part I of the Schedule to the said decree, that is, Sri Chaitanya Math situate at Mayapur and other maths and temples and also properties mentioned in the said schedule were declared Debuttar properties and plaintiffs Kunja Behari Bidya Bhusan and Paramananda Bidya Ratna were declared entitled to manage the said debuttar properties as shebaits. The Bagbazar Gaudiya Math along with some other properties were allotted to Gaudiya Mission Society. On 26th March, 1940, that is, on Falguni Purnima day, Kunja Behari Bidya Bhusan took Sanyas and assumed name of Sri Bhakti Bilas Tirtha Maharaj. According to the defendants on 7th July 1976 Bhakti Bilas Tirtha Maharaj executed two deeds of appointments of shebaits one in respect of Sri Chaitanya Math situate at Mayapur and its branch maths and the other in respect of Sri Chaitanya Research Institute at 70B, Rash Behari Avenue, Calcutta established in 1964. By one of the said two deeds eight persons named therein were appointed shebaits of Sri Chaitanya Math and its branch maths and the debuttar properties whereas by the other deed five persons, named therein, were appointed as shebaits of Sri Chaitanya Research Institute at 70B, Rash Behari Avenue and certain other maths. The said deed however was registered in Oct. 1976 by Satchidananda Brahamachari, the defendant appellant No. 2, as Bhakti Bilas died on 7th of Sept. 1976. In June, 1978 the plaintiffs respondents gave out that they formed a society named Mayapur Sri Chaitanya Math. On 15th May 1978 the respondent Nos. 2 to 11, who are office bearers of the said society filed said suit No. 939 of 1978 claiming the reliefs mentioned hereinbefore.;