HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Reserved on 01.08.2011 Delivered on 26.08.2011 Case :- WRIT - C No. - 33156 of 1991 Petitioner :- Mst.Bhagmani Devi Respondent :- Viii A.D.J.,& Another Petitioner Counsel :- K.N.Tripathi,Ajai Kumar Singh,Ajay Kumar Singh,Ashish Kumar Singh Respondent Counsel :- Shitla Pd.,C.K. Rai,F. Rai,S.C.,Shashi Tandan,Siddharth Hon'ble Sudhir Agarwal,J.
01. This writ petition has been filed though titled under Article 226 of the Constitution of India but, in fact is under Article 227 assailing order dated 09.10.1991 passed by VIII Additional District Judge, Varanasi in Civil Revision No.164 of 1989, whereby it has set-aside. Trial Court's order dated 4.5.1987 and directed it to decide suit itself within two months, after hearing the parties as it is a summary case.
02. The facts in brief giving rise to the present dispute are as under:-
03. The plaintiff-respondent no.2 filed suit no.67 of 1978 in the Court of Khafifa Judge, Varanasi (Small Causes Court) impleading the petitioner as sole defendant. The relief sought in the aforesaid suit is for eviction of the petitioner-defendant from the property in dispute and for decree of rent amounting to Rs.290/- from September, 1974 to January, 1976 and Rs.300/- towards notice period.
04. The property shown at the bottom of plaint is house no.CK 43/86 Mohalla Govindpura (Chhatta Tale), Varanasi. The plaintiff had stated that one Saraswati Bai was the owner of house no.CK 43/85 and CK 43/86 who installed a deity (Sri Thakur Ji Maharaj). The aforesaid property was made waqf to the deity "Sri Thakur Ji Maharaj". She also deposited Rs.10,000/- with Maharaja Banaras. It was provided that with the regular income of the house and interest to be earned from the money deposited, Seva Pooja of Sri Thakur Ji Maharaj shall be managed permanently for which the then Maharaja Banaras was appointed a sole trustee and manager. She also later on executed a Will on 10.4.1901 whereafter she died. The Will got registered after her death by one Rameshwari on 2.9.1901. Later on a Trust namely "Saraswati Bai Trust" was established in the name of late Saraswati Bai and management of property as well as Seva Pooja of Sri Thakur Ji Maharaj continued to be observed as per her instructions. The said management and realization of rent etc. continued under the instructions of Maharaja Banaras through managing committee constituted by him or himself. The petitioner-defendant was residing in the property in dispute. The said house in fact was rented to her husband Murahoo Rai who was posted at Varanasi and after his death, petitioner-defendant and her children continued to reside thereat. The initial rent of the house was Rs.8 per month, which later on was increased to Rs.10 per month. After the death of husband, petitioner stopped payment of rent and filed Suit No.141 of 1975 "Radhey Shyam and others Vs. Thakur Ji Maharaj" wherein she claimed to be the owner of the house in question. The aforesaid suit was filed in the Court of Civil Judge, Varanasi Radhey Shyam son of late Murahoo Rai was plaintiff no.1 and Smt. Bhagmani Devi, defendant-petitioner was impleaded as plaintiif no.2, (copy of the aforesaid plaint is on record as Annexure No.4 to this writ petition). Later on aforesaid suit was withdrawn on 27.11.1981 with leave to file fresh suit. Another Original Suit No.37 of 1983 was filed which was pending when this writ petition was filed. Notice terminating tenancy was issued which was replied by her denying right of the noticee, hence the aforesaid suit no.67 of 1978 was filed.
05. Contesting the suit, petitioner-defendant filed her written statement (Annexure No.2 to the writ petition) wherein she denied her status as tenant and contended that she is the owner of property in dispute. She denied installation of any deity by late Saraswati Bai at the house in question and establishment of Trust. She also denied ownership of property in question by late Saraswati Bai. She said that her husband was an Income Tax Officer and used to remain posted at different places. He owned house in question and after his death, the same is owned by petitioner, her children and other heirs. She denied to have executed any rent receipt in lieu of the rent paid by her to the plaintiff-respondent no.2.
06. The trial court vide order dated 4.1.1982 framed following seven issues:-
"1. Whether there exists any relationship of land (Torn) and tenant between the parties?
2.Whether Mangala Prasad has right to see on be (Torn) of the plaintiff regarding disputed property?
3.Whether the notices given by Sri Mangala Prasad are invalid and illegal?
4.Whether the Court has no jurisdiction to try this suit inas much as the intricate question of (Torn) invalid?
5.Whether the suit is barred by time?
6.Whether Bibhuti Narain Singh had any right to sue on the date of the institution of the suit on the basis of will dated 10.4.1901 as alleged in the plaintiff?
7.To what relief if any is the plaintiff entitled?
07. Later on 4.3.1982 the issue no.6 was re-framed as under:
"Whether Dr. Vibhuti Narain Singh had any right to sue as shebait on the date of institution of suit as alleged in the plaint."
08. It appears that in Original Suit No.141 of 1975 an application was filed on behalf of defendant no.1 i.e. Sri Thakur Ji Maharaj for mandatory injunction directing the plaintiff (petitioner in this writ petition) to open locks of the temple situated at the first floor of premises no.CK 43/86 and not to interfere with the right to do Seva Pooja of the temple. The Trial Court rejected application but Misc. Appeal was allowed and Trial Court's order was set-aside. The matter came to this Court in Civil Revision No.467 of 1977 which was allowed on 01.12.1977 and the appellate order dated 01.03.1977 was set-aside, and trial court's order was restored.
09. These facts, however, may not be of much relevance as now the Suit No.141 of 1975 has already been dismissed as withdrawn.
10. It is said that the petitioner filed another Suit No.30 of 1979 in the Court of Moonsif, Varanasi against one Gangu Bai and others on the ground that they are licensee and the license having been terminated and they have not vacated the premises and therefore, be evicted. In the aforesaid suit an application was filed by one Mangala Prasad Mukhtar on behalf of Dr. Vibhuti Narain Singh seeking his impleadment as party which was rejected by the Court of Munsif on 9.4.1981. Thereagainst Civil Revision No.198 of 1981 was filed which was also rejected by the 2nd Additional District Judge, Varanasi vide judgment dated 18.1.1982. Thereafter a Writ Petition No.3660 of 1982 was filed which was dismissed by this Court on 28.10.1983.
11. In the aforesaid matter while rejecting impleadment application, the courts below held that creation of Trust in respect to house in question was not proved by the applicant and further that in any case under the Will, Maharaja Banaras was appointed as Manager in his capacity as such and not as individual. Hence individual agent was not authorized to move an application seeking impleadment.
12. It is also said that one Shyam Narayan Lal Maurya claiming himself to be an employee of late Maharaja Aaditya Narayan Singh Bahadur, Kashi Naresh, filed application on 5.9.1934 in Municipal Board, Varanasi seeking mutation of late Maharaja Aaditya Narayan Singh Bahadur Kashi Naresh in respect of House No.CK 43/85 and CK 43/86 stating that Smt. Saraswati Bai owned entire property of Sri Thakur Ji Maharaj and appointed Maharaja Banaras as Manager hence his name may be mutated. The said application was opposed by petitioner's husband, late Murahoo Rai, and the same was accordingly rejected by Additional District Magistrate, Varanasi on 13.9.1935.
13. The issue no.4 in Original Suit No.67 of 1978 relates to the very jurisdiction of the Court. It was heard and decided by order dated 4.5.1987. The Trial Court held, since there exists real and bonafide dispute of title between the parties, suit must be tried by regular court and not by court of Judge, Small Causes. The respondent no.2 filed Civil Revision No.164 of 1987 which has been allowed by the revisional Court by the impugned judgment.
14. During pendency of this writ petition, the sole petitioner as well as respondent no.2 died hence their legal heirs have been substituted and have been brought on record. Though on behalf of respondent no.2 counter affidavit has been filed but since the question involved in the matter is purely legal, therefore, nothing turn out much from the said counter affidavit.
15. While entertaining this writ petition, this Court on 15.11.1991 had stayed operation of impugned order dated 9.10.1991. It is thus evident that proceedings before the court below are lying stand still, till date.
16. Sri Ashish Kumar Singh, learned counsel for the petitioner submitted that suit before the Small Causes Court cannot be allowed to proceed where the intricate and complicated question of title is involved. Section 23 of Provincial Small Cause Courts Act, 1887 (hereinafter referred to as 'Act 1887') contemplates return of plaint where the relief claimed had been upon the proof and disproof of a title to an immovable property, and, therefore, the Appellate Court erred in setting aside Trial Court's order. The suit was not maintainable before the Judge Small Causes. He submitted that Section 23 though is not obligatory in so far as return of plaint is concerned but if a question of title is raised it goes to the very root of the matter. It involves inherent jurisdiction of Small Causes Court. A suit wherein the dispute of title of property is involved, cannot be decided by such Court. The trial court took a correct view which has been illegally upset by the lower appellate court. He placed reliance on the Apex Court decision in Budhu Mal Vs. Mahabir Prasad and others, 1988 (2) ARC 260 (SC) and this Court's decisions in Pratap Singh Vs. IXth ADJ, Fatehpur and others, 2000 (2) ARC 41, Smt. Sughra Begum Vs. Additional District Judge XIIth, Lucknow and others, 1999 (1) ARC 582, Virendra Prasad Shukla Vs. Ram Swarup and others, 1983 ARC 179, Jiya Lal Vs. XIth Additional District Judge, Meerut and others, 1994 (1) ARC 280, Smt. Krishna Devi Vs. District Judge, Mathura and others, 1984 (1) ARC 506, Smt. Kela Devi and others Vs. Rameshwar Dayal, 1982 ARC 149, Ram Jiwan Misra Vs. Smt. Kallo and another, 1980 ARC 522, Mahendra Pal Singh and others Vs. District Judge, Jhansi and another, 2004 (1) ARC 697.
17. Sri Singh further contended that from bare perusal of the averments contained in the plaint as also the description of plaintiff, the suit was not maintainable. Since the plaintiff-respondent no. 2 was neither claiming relief in his capacity as the owner of the property nor as Mahant of any temple but only as a Manager or care taker and hence was not entitled to file a suit in his own individual capacity. It was incumbent upon the court below to reject plaint itself under Order VII Rule 11 C.P.C. outright. He submitted that it is true that this aspect has not been considered by the courts below in the order impugned but since the relevant record is available before this Court and the plea is purely legal which can be decided on the basis of a bare reading of the description of parties and pleadings in the plaint, this Court under Article 227 of the Constitution of India can always look into this aspect of the matter and if satisfied, may not relegate the parties unnecessarily to go on for further litigation in the matter so as to prolong their agony but an issue which is purely illegal, admits of no documentary evidence, if can be decided on the basis of the material available before the Court, it shall endeavour to decide the same so as to put an end to an unwarranted, frivolous and vexatious litigation.
18. On the contrary Sri C.K. Rai, learned counsel appearing on behalf of respondent no.2 submitted that there is no complete bar and an incidental question of title can be decided by the Small Causes Court and in support placed reliance on this Court's decisions in Smt. Girja Shanker and others Vs. Krishna Kumar Jaiswal, 2011 (85) ALR 116, Punet Kumar Agrawal Vs. Jhunjhunwala Charity Trust, 2011 (85) ALR 780, Ram Sevak Vs. Pramod Kumar, 2011 (84) ALR 634.
19. Sri Rai in respect to the description of parties and the question, whether the suit could have been filed by the plaintiff-respondent no.2 in his individual capacity or it is a description showing that he has filed the same in the capacity of shebait, submitted that the suit cannot be held non-maintainable for this reason alone and in any case since this issue has not been considered by the courts below, this Court may not look into this aspect of the matter.
20. I proceed to consider the first issue whether the question of title could have been decided by the court below or not.
21. It is now well settled, where serious dispute of title has arisen, the Court of Small Causes shall not proceed with the matter but ought to return the plaint for presentation before a Court competent to decide such a question normally i.e. the regular Court.
22. In Ram Jiwan Misra Vs. Smt. Kallo and another (supra), a suit for ejectment, arrears of rent and damages for use and occupation was filed by Ram Jiwan Misra. He stated in the plaint that Smt. Allahabadni was previous owner of the premises in question but executed a sale deed on 2.4.1971 in favour of plaintiff Ram Jiwan Misra hence he had become owner. The defendants Smt. Kallo and another while admitting ownership of Smt. Allahabadni denied execution of sale deed in favour of plaintiff Ram Jiwan Misra. Rather they contended that alleged sale deed is fictitious and fraudulent. They further said that daughter of Smt. Allahabadni was the owner and landlady of the building in question. An objection regarding jurisdiction was taken before the trial court but it was rejected by observing that question of title is not involved. This order of the Trial Court was reversed by revisional Court whereafter the matter came to this Court. It was observed "It is true that the defendants opposite parties were not setting up title in themselves and were setting up title of a third person but all the same, it was denied that the plaintiff-applicant had any title".
23. Referring to an earlier decision of this Court in Noola Vs. S. Chaman Lal, AIR 1935 All 148, the Court observed that to attract Section 23 of Small Causes Courts Act it is not necessary that there must be dispute of title between the parties in the sense that both of them are claiming title among themselves. Under the section the enquiry is limited only to the right of the plaintiff and to the relief claimed by him. The Court accordingly upheld the objection that the suit was not maintainable.
24. In Smt. Kela Devi and others Vs. Rameshwar Dayal (supra) the Court said "A complicated question of title was involved in the present case. The Small Cause Court has no jurisdiction to adjudicate upon it".
25. In Virendra Prasad Shukla Vs. Ram Swarup and others (supra) the suit for ejectment was filed by Ram Swarup and another against Virendra Prasad Shukla. The plaintiff claimed that defendant no. 1 in the suit was tenant in chief of the disputed accommodation since 1950 and had taken Virendra Prasad Shukla as sub-tenant in the aforesaid building. The defendant no.1 accepted all the allegations in his written statement but Virendra Prasad Shukla filed a written statement claiming that plaintiffs were not the owners of the disputed house nor the defendant no.1 was his landlord nor he was sub-tenant of defendant no.1. He claimed that the disputed house belong to his father Brij Mohan and he was residing in the house alongwith his father. This Court held that since a question of title is involved, the matter could not have been decided by Small Cause Court and hence while setting aside the judgment and decree passed by court below, this Court directed Small Cause Court to return plaint to the plaintiff for presentation to the regular Court.
26. In Smt. Krishna Devi Vs. District Judge, Mathura and others (supra) she claimed herself to be the landlady of premises No. 643 Mohalla Golpara, Mathura and one Ballabh Das, defendant was her tenant pursuant to an allotment order dated 18.12.1968. The tenant having committed default in payment of rent, the tenancy was terminated and a suit for eviction was filed. Ballabh Das contested the suit asserting that Smt. Krishna Devi was not the owner of property in suit and he was not her tenant. This Court said "Under Section 23 of the Provincial Small Cause Court Act it is provided that when the right of a plaintiff and the relief claimed by him in the court of Small Causes depend upon the proof or disproof of a title to immovable property or other title which such a court cannot finally determine, the court may at any stage of the proceedings return the plaint to be presented to a court having jurisdiction to determine the title. The Small Cause Court is not expected to decide intricate questions of title. It should, if it found some substance in the plea of the defendant that Smt. Krishna Devi was not the owner of the property, have directed the return of the plaint for presentation to proper court. It should not have proceeded to determine the question itself in summary proceedings".
27. In Jiya Lal Vs. XIth Additional District Judge, Meerut and others (supra) in paragraphs 7 & 9 of the judgment the Court held:-
"7. A suit by a landlord against a tenant is cognizable by Judge Small Causes Court on limited questions. The Judge, Small Causes Court cannot decide the question of title. He has to decide the limited question as to whether there is a relationship of landlord and tenant between the plaintiff and defendant. The right of the plaintiff is based on the relationship of landlord and tenant. In case the plaintiff has based his rights on the basis of a title, then the Court has to return the plaint as provided under Section 23 of the Provincial Small Causes Courts Act, 1887.
9. The Judge, Small Causes Court has to decide the only question as to whether the defendant was let out the disputed shop and his possession at the time of letting was that of a tenant. The controversy as to whether the plaintiff or the father of the defendant and his uncle are owners of the property in dispute is outside the jurisdiction of the Judge, Small Causes Court. The possession of a tenant is the possession of his landlord."
28. In Smt. Sughra Begum Vs. Additional District Judge XIIth, Lucknow and others (supra) this Court in paragraphs 11 & 12 said as under:-
"11. In my opinion, under the facts and circumstances of the present case, the provisions of Section 23 of the Act referred to above were fully attracted. Otherwise also to avoid multiplicity of proceedings and to cut-short the litigation, it was necessary either to return the plaint for presentation to a Court of competent jurisdiction or to transfer the suit giving rise to the present petition to the Court of Civil Judge, Mohanlalganj, as the Judge Small Causes Court has no jurisdiction to decide the question of title.
12. It is settled law that when in a suit in Small Causes Court, the question of title is raised, it is expedient for the Court to return the plaint for presentation before a Court competent to decide such a question. It is not necessary that plaintiff-defendant should be rival claimants to the immovable property. The object of Section 23 is to meet cases in which Judge is satisfied that the question is so intricate that it should not be decided summarily and that it should return a plaint for presentation to a proper Court. A reference in this regard is made to a decision in Noola v. S. Chman Lal, AIR 1935 All 148."
29. In Pratap Singh Vs. IXth ADJ, Fatehpur and others (supra) in paragraphs 5, 6 & 7 of the judgment the Court said:-
"5. The object of the Section is to enable the Small Cause Court to decline to exercise its jurisdiction in small causes suit when the right of the plaintiff and the relief claimed by him depend upon the proof or disproof of a title to an immovable property or other title which the Small Causes Court cannot finally determine and to return the plaint to be presented to a Court having jurisdiction to determine the title. In effect, the rights to, or interests in immovable property are elaborately excluded, but as questions of this character may arise incidentally in Small causes suits, a facultative provision is made by Section 23 enabling the Small Causes Court to send the matter to ordinary Civil Court but not obliging it to do so.
6. A Small Causes Court is expected to try suits of a comparatively simple character and, therefore, suits involving question of title should not be entertained by that Court. Section 23 is intended to enable the Courts of Small Causes to save their time by returning the plaints in suits which involve enquiry into the question of title. This Section is designed to meet the cases in which Judge, Small Causes Court is satisfied that the question of title raised is so intricate and difficult that it should not be decided summarily but in ordinary Court in which evidence is recorded in full and the decision is open to appeal. The underlying principle under Section 23 seems to be that where it is considered advisable by a Small Causes Court that a final decision on a question of title, which decision would, if given by an Original Court, ordinarily be subject to appeal and even to second appeal and which decision would ordinarily be res judicata between the parties, should be given in the particular case before a Small Causes Court, by an Original Court, the Small Causes Court though competent to decide incidentally the question of title in that particular case might exercise with discretion, the power of returning the plaint to be presented to the Original Court which would have jurisdiction to so decide on that title finally. Obviously, the section is designed to meet the cases in which the Judge, Small Causes Court is satisfied that the question of title raised is so intricate and difficult that it should not be decided summarily but in an ordinary Court in which evidence is recorded in full and decision is open to appeal.
7. Section 23 is framed in optional terms giving discretion to the Court to Act in the matter or not, and therefore, in suits involving question of title, the Small Causes Court has a discretion either to decide the question of title or to Act under this section and return the plaint. It is not always bound to return the same. Nevertheless, when any complicated question of title arises, it would be the wiser course for Small Causes Court in the exercise of its discretion to Act under Section 23 and return the plaint."
30. In Mahendra Pal Singh and othes Vs. District Judge, Jhansi and another (supra) this Court said "since intricate question of title is involved in the present case, the revisional Court, had rightly exercised its discretion under Section 23 of the Act in directing the trial Court to return the plaint for presentation to the proper Court".
31. The Apex Court in Budhu Mal Vs. Mahabir Prasad and others (supra) held that Section 23 does not make it obligatory on the Court of Small Causes to invariably return the plaint once a question of title is raised by the tenant but if the suit cannot be construed to be one between landlord and tenant they would not be cognizable by the Court of Small Causes and it is for these reasons in such cases the plaints ought to have been returned for presentation to appropriate Court so that none of the parties are prejudiced.
32. Upcoming to other decisions where it has been observed that question of title if incidentally had arisen may be gone into by the Small Causes Court. I find that in Ram Sevak Vs. Pramod Kumar (supra) a suit for arrears of rent and ejectment was filed by one Ram Krishna Agarwal against Ram Sevak which was decreed ex-parte. The restoration application was allowed and the suit was restored. During pendency of suit, Ram Krishna Agarwal, the plaintiff died. Based on a Will of Ram Krishna Agarwal his wife Smt. Gomti Devi was substituted who also died issue-less. Consequently, one Hari Narain, brother of Ram Krishna Agarwal succeeded the property and after his death Pramod Kumar, the respondent in that writ petition was substituted on the basis of the Will. The petitioner Ram Sevak in his written statement stated that property belong to a Trust and Ram Krishna Agarwal was merely Sarvarakar of the Trust and not owner of the suit property. He was paid rent regularly in the capacity as Manager of the Trust. Ram Sevak also challenged the Will executed by Ram Krishna Agarwal. The suit was decreed holding that the property in question originally belonged to Ram Krishna Agarwal and ultimately got transferred to Pramod Kumar. Therein tenant did not dispute that he was tenant in the building in question and also to the effect that Ram Krishna Agarwal was collecting rent. He only tried to dispute the capacity in which Ram Krishna Agarwal was collecting rent. In these circumstances, this Court referring to the Apex Court's decisions in Shamim Akhtar Vs. Iqbal Ahmad Khan and others, 2001 (42) ALR 131 (SC), and this Court's decision in Bashir Ahmad Vs. Ist Additional District Judge, Saharanpur and others, 2000 (40) ALR 741, observed that the question of title could also have gone incidentally. The mere denial by a tenant-respondent about the relationship of landlord and tenant would not avoid eviction proceeding before the Small Cause Court.
33. In Smt. Girja Shanker and others Vs. Krishna Kumar Jaiswal (supra) also similar observation has been made that mere denial of relationship is not sufficient to oust jurisdiction of Court constituted under Provincial Small Causes Courts Act and the Court relied on the decisions in Ram Ashere Savita Vs. IInd A.D.J., Kanpur Dehat and others, 2005 (59) ALR 737 and Shrimati Devi (D) through L.Rs. Vs. IVth A.D.J., Meerut and others, 2004 (57) ALR 562.
34. In Punet Kumar Agrawal Vs. Jhunjhunwala Charity Trust (supra) the question was slightly different as to whether a co-trustee can file a suit for arrears of rent and ejectment and, therefore, the same has no application to the facts of this case.
35. In the present case this question would have to be looked into from different but various angles. Admittedly the plaintiff-respondent no.2 did not claim any ownership of the property in dispute. The averments in the plaint says that property belong to one Smt. Saraswati Bai who installed a deity and created a waqf of the property in question to the said deity i.e. Sri Thakur Ji Maharaj. Then it says that Maharaja Banaras was nominated by her as a manager and sole trustee for observing Seva Pooja of Sri Thakur Ji Maharaj from the regular income of the house and interest earned on the money she had given to Maharaja Banaras.
36. The second limb of the averments is that Smt. Saraswati Bai executed a Will on 10.4.1901 and thereafter she died. The Will was registered on 2.9.1901 after her death. It is not the case of the plaintiff that by the said Will the property was transferred to the plaintiff-respondent no.2.
37. The third aspect of the matter, it is claimed that a Trust was created in the name of late Saraswati Bai and management of property as well as Seva Pooja of Sri Thakur Ji Maharaj continued pursuant to the stipulations of the said Trust. Maharaja Banaras functioned as the sole trustee. The real problem which has arisen, in which capacity and to whom the property belonged. Whether the property belonged to deity, Sri Thakur Ji Maharaj or it remain in the management of Maharaja Banaras as a custodian or it became a part of the alleged Trust.
38. In all the three categories the consequences and the manner in which a suit could have been filed would be different. While a deity is installed and consecrated it is treated like a living person warranting everyday service of sweeping, bath, dressing, offering of flowers, oblation etc. The property can be gifted to such deity and it can own property. Such deity has been conferred with the concept of legal personality in law. On this aspect the matter has been discussed in great detail by a Full Bench of this Court (the separate judgment but constituting majority delivered by myself) in The Sunni Central Board Vs. Sri Gopal Singh Visharad, 2010 ADJ (1) (Special F.B.) (paragraph 1710 and onwards). However, I do not intend to proceed further on aspect of the matter except of reproducing certain conclusions recorded in paragraphs 1890 to 1898 of the judgment which are reproduced as under:-
"1890. There exist a Supreme Being which controls everything and fulfills the wishes and salvation to the human beings. Hindus believe that the Supreme Being manifest himself in human form (incarnation) with all the powers of Supreme Being subject to self imposed human limitations. This reincarnation or manifestation is known as "Swayambhu". The place of reincarnation is treated sacred. This kind of belief that the place become sacred which relates to birth or some other activities of a Holy sole is common in other religions also like, Mekka in Islam, Bethlehem/Jerusalem in Christianity.
1891. The concept of deity is deeply embedded amongst Hindus. The Hindu Dharma has elevated the concept of sacredness into an object of divinity fit for worship. However, this is only symbolic. A Hindu does not worship the idol or the material body but it is the eternal spirit of the deity and the image is a mere symbol. The incarnation of Mantras peculiar to a particular deity causes manifestation of a deity. The idols or images which are man made are consecrated with the spirit of Supreme Being through Vedic rights. The process is known as "Pran Pratistha". The Supreme Being is bodyless, shapeless and, therefore, through the concept of images it is visualized and worshipped.
1892. The deity, i.e., the consecrated image or the Swayambhu deity has a juridical status. Law recognises its power of suing and being sued. This power can be exercised by the person who is entrusted with its care and management normally called "Shebait". In the context of Shebait the deity is treated to be an "infant heir" or "with the status of a minor" since it cannot act on its own.
1893. The deity is a class by himself conceived of a living being and is treated like a master of the house. The property dedicated to a deity belongs to it and not to Shebait though is managed by Shebait as a trustee or its manager who has no otherwise right into property except that it can be managed for the benefit of the deity.
1894. A temple is the house of the deity. Even if the image is broken or otherwise get damaged, the Supreme Being continued to exist and by replacement of the image that continuity is maintained symbolically. A temple and deity is res extra commercium. Presence of idol is not decisive to ascertain the status of a temple.
1895. The worshippers are the beneficiaries though in a spiritual sense.
1896. If the public goes for worship considering that there is a divine presence and offer worship thereat believing that they are likely to be the recipient of the bounty of God then it satisfy the test of a temple. Installation of an idol or the mode of worship are not the relevant and conclusive test.
1897. It leaves no doubt in our mind that according to the well recognised and accepted concepts of Hindu Law in regard to deity and idol, it cannot be disputed now that an idol is a juridical person, can sue and be sued, can acquire property and deal with it in a manner it likes though obviously this user is through a Shebait or the person who takes care of the idol since it cannot act on its own not being a natural person.
1898. Besides, to constitute an idol, a deity, the concept of Pran Pratishtha and that too in a particular manner is not always conclusive and is not the only test. In the case of a "Swayambhu deity", the Shastrik procedure of Pran Pratishtha as such is not at all required. A deity can be in the form of an idol or even in natural form like stone, wood, earth, river, mountain etc. The only requirement in our view would be that in case of place, it must be ascertainable as to what place is believed to be sacred and pious by the worshippers.
39. Then the manner in which a suit can be filed by an idol has been considered in paragraphs 1919 and onwards and in paragraph 1914 it has been observed that a juridical person can sue or be sued through a next friend. It does mean that a suit can be filed on behalf of the juridical person but through the next friend or the shebait as the case may be. The next friend cannot file a suit in his own name.
40. I however, do not propose to express any final opinion on this aspect for the reason that this issue at first instance ought be considered by the Trial Court and it would not be appropriate to decide this issue straightway by this Court.
41. Be that as it may, coming to initial aspect in this case, the petitioner did not admit either creation of any Trust or execution of any Will or creation of alleged waqf in favour of Sri Thakur Ji Maharaj in respect to the property in question. On the contrary she claimed herself to be the owner of property in dispute and denied any right of the plaintiff-respondent no.2. Here is not a case where in any manner tenancy was accepted or explained by petitioner but here a clear cut dispute of title and authority of the plaintiff-respondent no.2 to file suit treating himself the landlord and petitioner as tenant was challenged/disputed.
42. The plaintiff has not filed suit claiming himself to be the owner of the property and on the contrary admits that the property owned and is belong to Trust and he in the capacity of trustee can file the suit. The very establishment of Trust is in dispute since the petitioner has challenged such claim of plaintiff. The very right to sue of the plaintiff as shebait is also one of the issue framed in the suit. The case thus involves intricate question of title as is evident from the record as also from the issues framed in the matter. In these circumstances it would not be appropriate for the Small Cause Court to proceed in the matter to decide such intricate question of title. The appropriate course would be to return the plaint for its presentation before the regular Court. The jurisdiction of Small Cause Court is limited. It can function within the jurisdiction which has been conferred by the Small Cause Courts Act and not otherwise. The lower Appellate Court has seriously erred in law by holding that the dispute relating to title was an incidental issue though it was the very basic issue as is evident from the pleadings of the parties and, therefore, could not have been decided by the Small Causes Court. The judgment in question, of lower Appellate Court, taking a view different than what has been expressed above, is clearly untenable in law hence is liable to be set-aside.
43. The writ petition is accordingly allowed. The impugned order dated 09.10.1991 is hereby quashed. The trial court is directed to return plaint to the plaintiff-respondent no.2 for presentation before regular Court.
44. No costs.
Order Date :-26.08.2011 Kpy