- (1.) THIS is a defendant's appeal brought against the judgment and decree of the learned District Judge, Alwar, dated 31-8 60 ordering that defendant Shri Ram shall be removed from the office of the Pujari of Shri Daooji's Temple situated in Bazaz Bazar near Zenana Hospital at Alwar and he shall hand over charge of his office to the plaintiffs, the trustees of the temple. The learned District Judge further directed that the possession of the temple and its property marked red in the site plan shall also be delivered by the defendant to the plaintiffs and further plaintiffs shall receive possession of all the articles mentioned in list Ex. 27, except ornaments and Mukuts, from defendant Shri Ram.
(2.) THE Temple in question is said to be a big one. Its description including the ships and residential apartments attached to it is given in para 2 of the plaint. According to the plaintiffs, who claimed to be the trustees of this temple appointed in pursuance of a scheme prepared under section 92 Civil Procedure Code by the District Judge of Alwar, the temple was built by one Gatru Matru about 125 years back. One Gopalji was put incharge of the temple and for three generations the same had been managed by Gopalji's family; the last manager-cum-Pujari being one Shiv Narain. It appears that as Shiv Narain and his ancestors had mortgaged some shops and other apartments of the temple from time to time and this led to certain insolvency proceedings in the course of which some shops as well as other apartments came to be sold in the course of insolvency proceedings, some representatives of the worshippers, brought a suit in the court of the District Judge at Alwar on 151-1938, after obtaining the requisite sanction of the Government Advocate of the ex-Alwar State. This suit was dismissed by the District Judge, but on appeal in the High Court of the State it was ordered that a Scheme be framed and new trustees be appointed for the temple. THEre was a further appeal to the Rajendra Shasan, which was the body analogous to the Privy Council, and by its order dated 9 4-45 the Rajendra Shasan, that is, the Maharaja of Alwar in Council confirmed the decree of the High Court. THEreafter the District Judge framed a scheme and appointed a Board of Trustees, consisting of five members, for the custody and management of the temple and its estate on 3-1-47. In the course of their management the trustees filed some suits for possession of the temple property against the alienees and were successful in obtaining possession of some shops. It further appears that after the formulation of the scheme the trustees wanted to take possession of the property which remained with Shri Ram defendant, but the delivery of possession was resisted. It was for this reason that the plaintiffs, the trustees, instituted the suit for the removal of the defendants and for possession of the temple property. Defendant Shri Ram contested the suit on various grounds. He denied that his father Kanhaiyalal or he were ever appointed for doing the Sewapuja in the temple. He took the stand that Gatru Matru, who had constructed the temple, had made a 'sankalp' of the same to the ancestors of the defendant Shri Ram and since then they were in possession of the temple and the property as owners. In the alternative it was pleaded that the defendant had acquired title over the suit property by adverse possession. Several other legal pleas were raised. The learned District Judge set down the following issues for trial. *** Issues Nos. 1,2,3,10 and 11 were dealt with by the learned District Judge together. The learned District Judge held that the decision given by the erstwhile Alwar High Court and Rajendra Shasan and the scheme framed by the District Judge in proceedings under section 92 Civil Procedure Code the suit property being held the property of a public trust, the judgment of the High Court as well as the Rajendra Shasan, according to the learned Judge, were judgments in rem and consequently the defendant could not question the public nature of the temple or the property attached to it. Nonetheless the learned District Judge went into the evidence with a view to seeing whether the defendant had been able to establish his case regarding the suit property being given to his ancestors in 'sankalp' by Gatru Matru, the founders of the temple or regarding their plea of adverse possession. The learned District Judge came to the conclusion that the 'sankalp' story put forward by Shri Ram had not been proved by the record. He referred to the evidence of D. W. 18 Kanhaiyalal, D W. 24 Durga Prasad, D. W. 25 Mahilal D. W. 42 Badri Prasad and D. W. 47 Shri Ram defendant and reached the conclusion that this evidence was discrepant and unconvincing and apart from it, it was not receivable being based on hearsy. Regarding the plea of adverse possession, the learned Judge referred to the various pieces of evidence relied on by the defendant, such as, (1) Shri Ram and his ancestors letting out certain apartments of the temple on rent orally or by rent notes; (2) Shri Ram and his ancestors permitting marriage parties and other persons to stay in the temple from time to time; (3) Shri Ram and his ancestors earring out repairs to the temple property or making new constructions in the residential portion of the temple property; (4) Shri Ram and his ancestors employing certain other persons for doing Sewa Puja on their behalf; (5) Shri Ram's father installing image of Shri Hanumanji in the temple they having prepared Poshak' and 'patra' for the deity; and (6) Shri Ram and his ancestors receiving offerings made before the deity by the worshippers and their having incurred expenses of the deity. This evidence was attacked by learned counsel for the plaintiffs on various grounds, but the learned District Judge was impressed by one consideration and held that even assuming the reliability of this evidence it naver the less failed to prove that the defendant had acquired title over the suit property against the deity. Here, I may read the relevant portion of the judgment of the learned District Judge: " I do not consider it necessary to go into this question about the reliability or genuineness of the evidence produced by the defendant but suffice it to say that even if this evidence is believed into for argument's sake then it does not prove that the defendant has acquired his title over the plaint property against the deity, It is well settled that the adverse acts of the priest of a temple cannot alter the real nature of the property. In A. I R. 1954 SC. 69 it was observed that if a shebait by acting contrary to the terms of his appointment or in breach of his duty as such shebait could claim adverse possession of the dedicated property against the idol it would be putting a premium on dishonesty and breach of duty on his part and no property which is dedicated to an idol would ever be safe. The shebait for the time being is the only person competent to safeguard the interests of the idol his possession of the dedicated property is the possession of the idol whose savait he is and no dealing of his with the property dedicated to the idol could afford the basis of a claim by him for adverse possession against the idol. " The learned District Judge also referred to the evidence led by the plaintiffs and particularly the statement given by Kanhaiya Lal, father of the defendant Shri Ram, of 2-10-1937 (Ex. 17 on record) as also that of Shri Ram and observed that he had no hesitation in arriving at the conclusion that the status of Shri Ram and his ancestors was that of a Pujari employed by Shiv Narayan and his ancestors who were the managers of the temple and its property with the result that Shri Ram cannot defeat the plaintiffs right to the temple and its property In the result, the learned Judge decided issues Nos. 1, 2, 3, 10 and 11 in favour of the plaintiffs. As a consequence he also decided issues Nos. 4 and 5 in favour of the plaintiffs. Regarding issue No 6, the learned Judge held that Article 144 of the Limitation Act applied and the period of limitation began from 2 2-1947 when the defendant resisted the taking of possession of the property pursuant to the scheme framed by the learned District Judge. Issue No. 7 was not pressed. Regarding issue No. 8, the learned Judge held that it was admitted by Shri Ram that the clothes and utensils as mentioned by the plaintiffs in the list marked Ex 27 belonged to the deity. That being so, the learned Judge held that the plaintiffs were entitled to get possession of all the articles mentioned in Ex. 27 except ornaments and 'mukats' which were not admitted by the defendant to be in his possession. Regarding issue No 9, the learned Judge held that the plaintiffs are entitled to remove the defendant Regarding issue No. 12, the learned Judge observed that in view of the findings on issues. Nos. 1,2,3,10,11 and 13 it was not necessary to give a finding regarding this issue. In the result, he decreed the plaintiff's suit as mentioned at the outset. In the fore-front of his arguments learned counsel for the appellant placed the question whether the judgments of the erstwhile Alwar High Court including that of the Rajendra Shasan were judgments in rem and, therefore, binding on all including the defendant so as to preclude any enquiry about the public character of the temple and the property appurtenant to it Learned counsel submitted that these judgments were not such as related to the legal character or status of a person as contemplated by sec. 41 of the Evidence Act and therefore, they could not be regarded as judgments in rem though these judgments might be relevant under see. 13 of the Evidence Act. Learned counsel placed reliance on Ahmad Adam vs. M. E. Makhri (l ). Learned counsel for the respondents has tried to support the judgment of the trial court. Besides the cases which have been referred to by the learned District Judge, learned counsel for the respondent invited my attention to two cases namely, Suraj Gir v. Bramh Narain (2) and Raje Anandrao v. Shamrao (3 ). Here I may deal with this question because there will be no necessity of going into the evidence in the event of my holding that the previous judgments were judgments in rem. Relevancy of judgments is dealt with by the group of sections 41 to 43 in the Evidence Act. I may read sections 41 and 42 : " S. 41 Relevancy of certain judgments in probate, etc , jurisdiction. A final judgment, order or decree of a competent Court, in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction, on, which confers upon or takes away from any person any legal character, or declares any person to be entitled to any such character, or to be entitled to any specific thing, not as against any specified person but absolutely, is relevant when the existence of any such legal character, or the title of any such person to any such thing, is relevant. Such judgment, order or decree is conclusive proof that any legal character, which it confers accrued at the time when such judgment, order or decree came into operation; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgment, order or decree declares it to have accrued to that person; that any legal character which it takes away from any such person ceased at the time from which such judgment order or decree declared that it had ceased or should cease; and that anything to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property. " " S 42. Relevancy and effect of judgment, orders or decrees, other than those mentioned in section 41. Judgments, orders or decrees other than those mentioned in section 41, are relevant if they relate to matters of a public nature relevant to the enquiry; but such judgments, orders or decrees are not conclusive proof of that which they state. " Normally a judgment binds only those who are parties to it. Such judgments are known as judgments in personam. Judgments for which provision is made in section 41 of the Evidence Act are usually referred to as judgments in rem. This phrase "a judgment in rem" has not been d fined, but it has all along been understood as meaning a judgment which is conclusive not only against the parties, but also against the whole world Such judgments declare, define or otherwise determine the status of a person or of a thing, that is to say, jural relationship of a person or thing to the world generally, A judgment in rem is an adjudication pronounced as its name indeed denotes, upon the status of some particular subject matter, by a tribunal having competent authority for that office (vide passages referred to in the Sarkar's Law of Evidence, Twelth Edition at page 464 ). The term "legal character" as used in section 41 means something equivalent to status The legal character assigned to a person announces to all the world what the legal status of a person is. The term must be narrowly construed for it must be remembered that an action in rem is not an action against a thing but an action availing against all the world In re Venkataramanayya, I. L. R. 54 Madras 640 ). A bare reading of sec. 41 denotes that : (1) the judgment must first be a final judgment or a decree of a competent court; (2) it must be in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction ; (3) it must confer upon or take away from any person any legal character, or which declares any person to be entitled to any such character, or to be entitled to any specific thing ; not as against any specified person but absolutely, such judgment, order or decree is conclusive proof that any legal character which it confers, accrued at the time when such judgment, order or decree came into operation; that any legal character, to which it declares any such person to be entitled, accrued to that person at the time when such judgraent,order or decree declares it to have accrued to that person; that any legal character which it takes away from any such person ceased at the time from which such judgment, order or decree declared that it had ceased or should cease; and that any thing to which it declares any person to be so entitled was the property of that person at the time from which such judgment, order or decree declares that it had been or should be his property. To my mind, the judgment in the suit under section 92 Civil Procedure Code in the present case was not one delivered in the exercise of probate, matrimonial, admiralty or insolvency jurisdiction. Therefore,one of the necessary conditions for the applicability of this section is wanting. There can be be no gainsaying the fact that the judgment relates to matters of a public nature relevant to the inquiry within the meaning of section 42 of the Evidence Act. Undoubtedly the question whether a particular temple was a public temple or not is a matter of a public nature. The determination of the question was relevant to the inquiry that resulted in the aforesaid judgments. Consequently the judgment is a relevant fact. Section 43 of the Evidence Act lavs down that judgments, orders or decrees other than those mentioned in sections 40, 41 and 42 are irrelevant, unless the existence of such judgment, order or decree is a fact in issue, or is relevant under some other provisions of the Act. Reading all these three sections together, I am satisfied that the judgment cannot be characterised as judgment in rem so as to be conclusive of the matter within the meaning of section 41 of the Evidence Act. To be conclusive a judgment must squarely fall within the four corners of S. 41 of the Evidence Act.
(3.) I may now turn to the cases referred to by the learned counsel. In Ahmed Adam vs. M. E. Makhri (l), a suit was filed under section 92 Civil Procedure Code by certain persons representing Cutchi Memons community on the ground that a certain mosque belonged to Cutchi Memons community. The persons representing the Cutchi Memons community had prior to the filing of the suit applied for sanction under section 92 Civil Procedure Code on the specific ground that the mosque in question belonged to the Cutchi Memons community. Some of the defendants that were impleaded in the suit were non Cutchi Memons. They were persons who were impleaded as trespassers and their interest was to defend the suit in their individual rights to manage the property. The question arose whether the decree in the suit could create a bar of res judicata against persons claiming interest not represented in the suit. In the light of these facts their Lordships considered the scope of a suit under sec. 92 C. P. C. and observed : " Where a representative suit is brought under S. 92 and a decree is passed in such a suit, law assumes that all persons who have the same interest as the plaintiffs in the representative suit were represented by the said plaintiffs and, therefore, are constructively barred by res judicata from reagitating the matters directly and substantially in issue in the said suit. A similar result follows if a suit is either brought or defended under O. 1 R. 3. In that case, persons either suing or defending an action are doing so in a representative character, and so, the decree passed in such a suit binds all those whose interests were represented either by the plaintiffs or by the defendants. Thus, it is clear that in determining the question about the effect of a decree passed in a representative suit it is essential to enquire which interests were represented by the plaintiffs or the defendants. If the decree was passed in a suit under S. 92, it will become necessary to examine the plaint in order to decide in what character the plaintiffs had sued and what interests they had claimed. If a suit is brought under O. 1, r. 8, the same process will have to be adopted and if a suit is defended! under O. 1, r. 8, the plea taken by the defendants will have to be examined with a view to decide which interests the defendants purported to defend in common with others. The principles laid down in that case are fully applicable to the present case. The defendant-appellants were not parties to the suit under section 92 Civil Procedure Code for the settlement of a scheme. Indeed when in pursuance of the scheme the trustees wanted to take possession of the property, they were resisted. The necessity for the suit under sec. 92 Civil Procedure Code was felt because the Pujaris had made alienations of the temple property. In that event it can not be said that the plaintiffs in earlier case were representing the same interest as the defendant. This is apart from the fact that the plaint in the earlier suit had not been produced as explained in the cited passage. It is necessary in such cases to examine the pleadings and the issues in order to decide in what character the plaintiffs had sued and what interests they had claimed or represented. Raje Anandrao's case (3) which was cited by learned counsel for the respondents has been considered in this case. Also the Madras cases namely, Ramadas v. K. Hanumantha Row (I. L. R. 36 Madras 364 ) and Hassanulla Khan vs. Royal Mosque Trust Board (A. I. R. 1948 Madras 134) were considered. Regarding these cases this is what their Lordships had observed in para 15 of the judgment : " The first point which has been pressed before us by Mr. Setalvad is that the present suit is barred by reason of the fact that in the earlier suit instituted under S. 92 of the Code a scheme had already been framed by a Court of competent jurisdiction and the decree by which the said scheme was ordered to be drawn binds all parties interested in the trust. A suit under S. 92, it is urged, is a representative suit, and so, whether or not the present respondents actually appeared in that suit, they would be bound by the decree which had framed a scheme for the prober administration of the trust. In support of this argument, reliance is placed on the decision of this Court in Raje Anandrao vs. Shamrao, 1961-38. C. R. 930 at p. 940. (AIR 1961 S. C. 1206 at p. 1211), where it is observed that though the Pujaris were not parties to the suit under S. 92, the decision in that suit binds the Pujaris as worshippers so far as the admimstration of the temple is concerned, because a suit under s. 92 is a representative suit and binds not only the parties thereto, but all those who are interested in the Trust. Mr. Setalvad has also relied on the two decisions of the Madras High Court, (I) in Ramdas v. Hanumantha Row, ILR 36 Mad. 364 and (2) in Hassanullah Khan v. Royal Mosque Trust Board, ILR 1948 Mad 257 : (AIR 1948 Mad 134 ). The effect of these two decisions is that a decree passed in a suit filed under S. 92 framing a scheme is binding on all and it prevents every person whether a party to the suit or not from asserting in a subsequent suit rights which conflict with or attack the scheme. " Then having said this, their Lordships proceeded to consider the basis of the decisions aforesaid that a suit under section 92 of the Code of Civil Procedure binds all parties. Their Lordships observed : " The basis of this view is that a suit under S. 92 is a representative suit and is brought with the necessary sanction required by it on behalf of all the beneficiaries interested in the Trust. The said section authorises two or more persons having an interest is the Trust to file a suit for claiming one or more of the reliefs specified in clauses (a) to (b) of sub-section (1) after consent in writing there prescribed has been obtained. Thus, when a suit is brought under s. 92, it is brought by two or more persons interested in the Trust who have taken upon themselves the responsibility of representing all the beneficiaries of the Trust. In such a suit though all the benefi iaries may not be expressly impleaded, the action is instituted on their behalf and relief is claimed in a representative character. This position immediately attracts the provisions of explanation VI to S. 11 of the Code. Explanation VI provides that where persons litigate bona fide in respect of a public right or of a private right claimed in common for themselves and others, all persons interested in such right shall, for the purposes of this section, be deemed to claim under the persons so litigating. It is clear that S. 11 read with its explanation VI leads to the result that a decree passed in suit instituted by persons to which explanation VI applies will bar further claims by persons interested in the same right in respect of which the prior suit had been instituted. Explanation VI thus illustrates one aspect of constructive res judicata. Where a representative suit is brought under S. 92 and a decree is passed in such a suit, law assumes that all persons who have the same interest as the plaintiffs in the representative suit were represented by the said plaintiffs and, therefore, are constructively barred by res judicata from reagitating the matters directly and substantially in issue in the said earlier suit. A similar result follows if a suit is either brought or defended under O. 1 R. 8. In that case, persons either suing or defending an action are doing so in a representative character, and so, the decree passed in such a suit binds all those whose interests were represented either by the plaintiffs or by the defendants, Thus, it is clear that in determining the question about the effect of a decree passed in a representative suit, it is essential to enquire which interests were represented by the plaintiffs or the defendants. If the decree was passed in a suit under S. 92, it will become necessary to examine the plaint in order to decide in what character the plaintiffs had sued and what interests they had claimed. If a suit is brought under O. 1, R. 8, the same process will have to be adopted and if a suit is defended under O. l, R. 8, the plea taken by the defendants will have to be examined with a view to decide which interests the defendants purported to defend in common with others. The decision of this question would be material in determining the correctness of the argument urged by Mr. Setalvad before us. " Then their Lordships considered the plaint in the suit under sec. 92 and came to the conclusion that only the Cutchi Memons community could be said to have been represented. Thus, according to their Lordships, the party who was held precluded from filing a subsequent suit was constructively represented in the earlier litigation and the provisions of Explanation VI to sec. 11 applied. This is far from saying that a suit under sec. 92 would result in a decision which will be a judgment in ram so as to be conclusive against the whole world. The decision can bind only such parties or interests as were represented in that suit, but not others. Anjuman Islamia vs. Latafat Ali (4) proceeds on the view taken in the Madras cases. The position that result from Ahmad Adam's case (1) is that before the previous judgment under section 92 Civil Procedure Code can be held binding on a party, interest of such a party should have been represented in the earlier suit. For holding a judgment to be conclusive being a judgment in rem, it should come within the four corners of section 41 of the Evidence Act or for that judgment to be binding it must fall within the ambit of section 11 Civil Procedure Code. Where a suit was filed under sec. 92 Civil Procedure Code then the interests of the parties which are sought to be bound must be shown to have been represented in such suit. Applying the tests laid down in Ahmad Adam vs. M. R. Makhri (l), I am unable to hold that the party can be held bound by such judgment. Such a judgment would undoubtedly be a relevant evidence within the meaning of section 42 of the Evidence Act, as already observed, and will have to be considered along with other evidence. ;