S.N. HUSSAIN, J.
(1.) Heard learned counsel for the parties.
(2.) Petitioners are defendants of Eviction Suit No. 31 of 1989 which was filed by OP No. 1, namely, Smt. Mataraj Rajeshwary Bhagwati Devi, the deity of the temple at Baridaulatpur, Jamalpur, through its Sebait Gorelal Mishra for eviction of the petitioners on the ground of default in payment of rent by the said defendants.
(3.) The petitioners are aggrieved by order dated 6.11.1998 passed in the aforesaid suit by which the learned Munsif, 1st, Munger, allowed the petition of opposite party numbers 2 to 4 for their substitution in place of Gorelal Mishra and for setting asi
Please Login To View The Full Judgment!
de abatement due to the delay in filing of the substitution petition.
(4.) The short fact of this case that earlier Gorelal Mishra filed title Suit No. 82 of 1971 for declaration of his title over the suit properties. The said suit was dismissed by the learned Sub-Judge, II, Munger, on 4.3.1982 which was challenged by him in Title Appeal No. 10 of 1982 which was also dismissed on 16.2.1985.
(5.) It appears that thereafter Gorelal Mishra re-conciled to the fact that he was only a Sebait of the deity which was owner of the suit property, and filed the aforesaid Eviction Suit No. 31 of 1989 in the Court of Munsif-I, Munger, for eviction of the defendants-petitioners. It may be made clear that the plaintiff of the Eviction Suit was Smt. Mataraj Rajeshwary Bhagwati Devi, the deity through its Sebait Gorelal Mishra.
(6.) It is an admitted fact that Gorelal Mishra died on 29.4.1994 leaving behind a son and two daughters (opposite party numbers 2 to 4) who filed a petition for their substitution in place of late Gorelal Mishra. Since, this petition was filed much beyond the period of limitation a prayer was also made for setting aside abatement. This petition has been allowed by the impugned order and opposite party numbers 2 to 4 were substituted and were directed to be impleaded as plaintiff numbers 2 to 4.
(7.) Mr. T.N. Maitin, learned counsel for the defendants- petitioners challenges the aforesaid order and submits that it had already been decided in the earlier suit that Gorelal Mishra had no title of his own over the suit property and had filed the instant Eviction Suit as the Sebait of the deity, hence his heirs can not claim to be substituted in his behalf and only another Sebait appointed in place of Gorelal Mishra in accordance with the provision of law can be substituted. He further claims that no valid reasons had been shown by the said opposite parties explaining the delay in filing of the substitution petition. Hence, he submits that the learned Court below had no jurisdiction to implead the said opposite parties as the heirs of Gorelal Mishra.
(8.) On the other hand, Mr. Naresh Kumar Sinha a, learned counsel appears for the plaintiff-deity-opposite party number 1 and also for opposite party number 2 Murlidhar Mishra who is the son of late Gorelal Mishra. He submits that he has specifically stated in the counter-affidavit that Murlidhar Mishra was working as Sebait of the plaintiff-deity since 1972 and in 1991 the earlier Sebait Gorelal Mishra had also executed a Power of Attorney in his favour. Hence, he submits that opposite party number 2 Murlidhar Mishra was a Sebait for all legal and practical purposes and hence the learned Court below was quite justified in impleading him as a co-plaintiff.
(9.) Mr. Anand Vardhan, learned counsel appearing on behalf of Sanyukta Devi. Daughter of late Gorelal Mishra, however, submits that opposite party number 2 Murlidhar Mishra was never appointed a Sabait. He further claims that Sebaitship can not be claimed on the basis of inheritance and if it can be considered on the basis of inheritance, she should also be considered for the same.
(10.) After hearing the contentions of the learned counsel for the parties and after perusing the materials on record, it is quite apparent that the claim of opposite party number 2 Murlidhar Mishra that he was Sebait of the deity since 1972 is absolutely frivolous as no such claim has been raised in the petition filed by him in the Court below and this statement for the first lime is being made before this Court. Furthermore, the suit was filed in the year 1989 by the said deity through Gorelal Mishra who claimed to be the Sebait of the said deity and this fact was never challenged by his son Murlidhar Mishra (opposite party number 2). The next claim of opposite party number 2 is that Gorelal Mishra had executed a Power of Attorney in his favour in the year 1991. But that paper can not legally bestow upon him Sebaitship of the deity. By dint of the said Power of Attorney Murlidhar Misra can only be assumed to be the Attorney of the Sebait and which authority extinguished with the death of Gorelal Mishra in the year 1994 and thereafter on its basis opposite party number 2 Murlidhar Mishra can raise no claim whatsoever. Even the sister of opposite party number 2 Murlidhar Mishra appeared in this Court and has specifically stated that Murlidhar Mishra was not the Sebait of the deity and hence there was no occasion of his substitution and impleadment as a co-plaintiff.
(11.) In the aforesaid circumstances, Vakalatnam'a filed by opposite party number 2 Murlidhar Mishra on behalf of the deity opposite party number 1 is not sustainable. Furthermore, there was no occasion for the learned Court below to substitute the heirs of Gorelal Mishra in place of him as he was only a Sebait of the deity and only another Sebait duly appointed can be substituted in his place which can be done in accordance with law even after parsing of the instant order because there the can not be any abatement due to the death of a Sebait as the deity was the plaintiff and it can not die.
(12.) In the aforesaid circumstances, the impugned order of the learned Court below is clearly illegal and without jurisdiction and the same is set aside. However, the question remains that the plaintiff, namely. Smt. Mataraj Rajeshwary Bhagwati Devi, the deity, has to be re-presented by some one and that some one can not be opposite party number 2 Murlidhar Mishra. Hence. I direct the learned Court below to issue notices to Bihar Religious Trust Board, Patna, to appear in the suit and take steps for appointment of a Sebait in accordance with law so that the deity may not be put to any undue loss.
(13.) If opposite party number 2 Murlidhar Mishra has deposited any cost in the Court below in accordance with the impugned order, he may withdraw the same. With the aforesaid directions, this Civil Revision is allowed