HIGH COURT OF MADHYA PRADESH, JABALPUR
Second Appeal No.604/20214
Mahadeo Prasad,
S/o. Shri Lallu Prasad Bhargav,
Aged about 52 years,
Sarvarakar Ram Chandra Ji Mandir Multai,
R/o. Sakin-Betul Ganj,
Tahsil and District Betul (M.P.)
..APPELLANT/
PLAINTIFF
Versus
1. Sarpanch, Gram Panchayat Kamath,
Tahsil Multai, District Betul (M.P.)
2. Secretary, Gram Panchayat Kamath,
Tahsil Multai, District Betul (M.P.)
3. Chief Executive Officer,
Janpad Panchayat, Multai,
Tahsil Multai, District Betul (M.P.)
4. Chief Executive Officer,
Jila Panchayat Betul,
District Betul (M.P.)
5. State of Madhya Pradesh
Through its Collector,
District Betul (M.P.)
...RESPONDENTS
Date of Judgment 22.03.2022
Bench Constituted Single Bench
Order delivered by Hon'ble Shri Justice Sanjay
Dwivedi
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S.A.No.604/2014
Whether approved for
reporting
Name of counsel for For Appellant : Shri Sanjay
parties Agrawal, Advocate.
For Respondents No.1 & 2 : Shri
Pushpendra Dubey, Advocate
For Respondents No.3 to
5/State : Ms Ankita Khare, Panel
Lawyer.
Law laid down
Significant Para Nos.
Reserved on : 15.12.2021
Delivered on : 22.03.2022
(J U D G M E N T)
( 22.03.2022)
This second appeal has been filed under Section 100 of the Code of Civil Procedure against the judgment and decree dated 27.03.2014 passed by learned Second Additional District Judge, Multai District Betul in Civil Appeal No.14-A/2010 affirming the judgment and decree dated 30.09.2010 passed by First Civil Judge, Class-II, Multai District Betul dismissing the Civil Suit No.45-A/2010.
2. The appeal was admitted on 02.08.2016 by framing the following substantial questions of law:-
"1. Whether, the Courts below having found the suit property belonging to the deity
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S.A.No.604/2014 (Ramchandraji Mandir) and the appellant-
Sarvarkar only claiming the declaration to that effect, the same could not have been refused on the ground that the suit was not properly filed?
2. Whether, the suit property having been held to be that of the deity, could (sic.) the Courts below committed an error in not granting relief of injunction?"
3. The facts of the case lie in a narrow compass. Suffice it to say that on 21.06.2006, a civil suit was filed by the plaintiff for declaration and permanent injunction claiming that the predecessors of the plaintiff were permanent resident of Multai Nagar. They had their personal property at Gandhi Chowk and a temple was constructed by them establishing an idol of Shri Ramchandra Ji and formed a public trust in the name of Shri Ramchandra Ji Mandir (for brevity "Temple") and the plaintiff-Mahadeo Prasad is its Sarvarakar. The description of suit property is, Khasra No.360, area 5.180 hectares, situated at Village Multai, Patwari Halka No.26, Tahsil Multai District Betul (M.P.). The said suit was registered as Civil Suit No.45-A/2010 in which relief has been claimed by the plaintiff for granting a decree
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S.A.No.604/2014 of declaration that the suit land is of the ownership of Temple and the plaintiff is its Sarvarakar and further asked for mandatory injunction against respondents-defendants restraining them from taking forcible possession of the suit land either by themselves or by their employees and they be further restrained from entering into the suit land.
The defendants filed their written-statements. There were two sets of defendants and as such two written- statements were filed on their behalf. At first, respondents No.1 and 2 filed their written-statement on 05.08.2006 and then respondents No.3 and 4 filed their written-statement on 10.10.2006. In the written-statements submitted by the defendants-respondents, the averments made in the plaint were denied saying that the suit land was a common road and that was being constructed in the interest of public and that the plaintiff is not the owner of the said land.
The plaintiff examined two witnesses namely Mahadeo Prasad Bhargav (PW1) (plaintiff) and Chandu Pawar (PW2), farmer of the village. The defendants also examined three witnesses, namely Ajab Rao (DW1) Secretary of Gram Panchayat Kamath; Anand Rao (DW2) villager and Vishal Singh (DW3) Chief Executive Officer, Janpad Panchayat Multai.
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S.A.No.604/2014 The trial Court framed as many as seven issues and recorded the statement of witnesses and by the judgment and decree dated 30.09.2010 dismissed the suit.
Thereafter, first appeal was preferred under Section 96 of CPC and that appeal was also dismissed by learned Second Additional District Judge, Multai, District Betul affirming the judgment and decree passed by the trial Court.
4. In the pursuit of getting an absolute answer to the substantial questions of law, learned counsel for the appellant submitted that the trial Court in paragraph 9 of its judgment categorically held that the suit land belongs to deity and deity Shri Ramchandra Ji is the owner. For ready reference, paragraph 9 of judgment of the trial Court is reproduced hereinunder:-
^^9& oknh }kjk izLrqr ekSf[kd ,oa nLrkosth lk{; iz-ih-1] iz-ih- 2] iz-ih- 6 ,oa iz-ih-7 ds voyksdu ls Li"V gS fd oknxzLr Hkwfe Jh jkepanz eafnj ds uke ij ntZ gS] blds vfrfjDr /kkjk&117 e-iz-Hkw-jk-la- ds rgr jkTkLo vfHkys[kksa esa dh xbZ izfof"V lgh gksus dh mi/kkj.kk dh tkrh gS tc rd mUgsa rRizfrdwy lkfcr u dj fn;k tk,] pwafd izfroknh i{k } kjk okn&xzLr Hkwfe Jhjkepanzth eafnj eqyrkbZ dh gksus dk
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S.A.No.604/2014 [kaMu ugha fd;k tk ldk gS vr% ;g rF; izekf.kr gS fd oknxzLr Hkwfe ewfrZ jkepanzth eafnj eqyrkbZ ds LoRo dh gSA**
5. The learned counsel for the appellant further submitted that thereafter in paragraph 14, the trial Court has further observed that the suit land belongs to Temple and as such the same is owned and possessed by the plaintiff, however, it is observed by the trial Court that the suit since not constituted properly as Temple should have also been made party. The plaintiff himself has posed as a Sarvarkakar of the said Temple, but here in this case seeking declaration on behalf of the plaintiff, therefore, such formation is not according to law and given contrary finding, holding that it is not found that the plaintiff has claimed himself to be owner of the property. The finding given in paragraph 14 of the judgment of the trial Court is quoted hereinbelow:- paragraph 14 ^^14& mijksDr foospuk ls Li"V gS fd oknxzLr laifRr ewfrZ Jhjkeapnzth eafnj ds LoRo ,oa vkf/kiR; dh gS vr% oknh dks pkfg, Fkk fd og oknh ds :i esa ewfrZ dks i{kdkj cukrk ,oa Lo;a ewfrZ ds laj{kd ds :i esa okn izLrqr djrk ijarq oknh } kjk izLrqr izdj.k esa Lo;a okn izLrqr fd;k gS vkSj oknxzLr Hkwfe ij LoRo dh ?kks"k.kk pkgh gS tks fd fof/k lEer ugha gSA Qyr% ;g rF; vizekf.kr ik;k tkrk gS fd oknxzLr laifRr
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S.A.No.604/2014 oknh ds LoRo ,oa vkf/kiR; dh Hkwfe gS rnkuqlkj okn iz'u Øekad&1 dk fu"d"kZ ^^vizekf.kr**ds :i esa fn;k tkrk gSA**
6. The learned counsel for the appellant has also drawn attention of this Court towards the finding given by the trial Court in paragraph 18 of the judgment. The relevant portion is reproduced as under:-
^^18& mijksDr foospuk ls Li"V gS fd turk ds fgr esa fd, x, fuekZ.k dk;Z ds fy, ;fn fof/kor~ Hkw&vtZu dh dk;Zokgh ugha dh xbZ gS rks mlls fd;k x;k fuekZ.k dk;Z voS/kkfud ugha gks tkrk ;Fkkfi mDr fLFkfr esa ,sls Hkw&Lokeh dks ;g fodYi miyC/k gS fd og lacaf/kr dysDVj ds le{k vf/kx`ghr dh xbZ Hkwfe ds izfrdj ds laca/k esa fof/kor~ dk;Zokgh djsaA Qyr% mijksDr foospuk ds vk/kkj ij ,oa U;k; n`"Vkar nkSyrflag th ¼iwoZ of.kZr½ esa izfrikfnr fof/k dks n`f"Vxr j[krs gq, ;g rF; izekf.kr ik;k tkrk gS fd okn xzLr Hkwfe ij izfroknhx.k }kjk fufeZr jkLrk fof/k vuqlkj cuk;k tk jgk gS ,oa oknh dks fookfnr Hkwfe ,oa jkLrs ds laca/k esa LFkkbZ fu"ks/kkKk izkIr djus dh ik=rk ugha jg tkrh gS Qyr% okn iz'u Øekad&3 dk fu"d"kZ ^^izekf.kr** ds :i esa ,oa okn iz'u Øekad&4 dk fu"d"kZ ^^vizekf.kr** ds :i esa fn;k tkrk gSA** However, the learned counsel for the appellant submitted that despite the finding given by the trial Court in favour of the plaintiff that the suit land belongs to the plaintiff but also observed all lands situated within the State, originally the
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S.A.No.604/2014 State Government is owner and said land remains under the ownership of the State, but if any Bhumiswami right is created in favour of an individual and he owns the same as Bhumiswami then in operation of law if required by the Government, the same is acquired and adequate compensation is paid to the land owners, but here in this case, admittedly no evidence is available that the suit land has been acquired by the respondents after following due procedure of law for public purpose and also not paid any compensation. An appeal was preferred, but the appellate court has also dismissed the appeal by judgment and decree dated 27.03.2014 affirming the judgment of the trial Court holding that the plaintiff failed to prove his suit of declaration and permanent injunction and affirmed the findings given by the trial Court.
7. The appellant had also moved an application under Order 41 Rule 27 of CPC for taking certain documents on record, but that application was rejected. By the said application, a document i.e. Will dated 28.07.1927 was sought to be brought on record whereby one Balmukund had created a trust in respect of his property and Ramjilal the creator of Will was looking-after the affairs of the property of the temple. After Ramjilal, his son Lalluprasad started
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S.A.No.604/2014 looking after the property and after his death, his son Mahadeo (present appellant) was looking after the said property. Another document was the order of Registrar, Public Trust dated 01.10.1956. According to the plaintiff/appellant, those documents were public documents and indicative of property being managed in terms of the Will by which the trust had been created. The plaintiff has exhibited as many as 27 documents i.e. Ex.P/1 to P/27 showing that the property of deity was being managed by him. Shri Agrawal, learned counsel submitted that in documents (Ex.P/1 to P/5, P/8, P/9, P/23, P/26 and P/27) and also in the plaint, the name of Sarvarakar is shown as Lalluprasad, even in Ex.P/6, P/7, P/10 to P/14, P/17 to P/22. He submitted that even in the cause title of plaint, the name of owner is shown as deity Ramchandraji Maharaj and in paragraph 1 of the plaint, the owner's name is shown as Shri Ramchandraji Maharaj and it is in possession of the suit land. Shri Agrawal submitted that the trial Court has already held that the suit property belonged to deity and deity was owner and in possession of the same, but learned trial Judge failed to appreciate correct position and did not hold the appellant as Sarvarakar and observed that suit should have been filed mentioning the proper cause title showing name of
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S.A.No.604/2014 Ramchandraji Maharaj first, then through its Sarvarakar Mahadeo Prasad but forming of cause title of plaint was not proper, it was in the name of Mahadeo Prasad, Sarvarakar, Ramchandraji Mandir Multai and therefore suit is not maintainable. He submitted that for that technical reason, Mahadeo Prasad was not considered to be Sarvarakar of the deity of temple and therefore suit met with dismissal.
8. As per Shri Agrawal, an amendment application was also moved for correcting the cause title in the plaint for mentioning name of deity first and then name of Sarvarakar, but that application was also rejected. He submitted that rejection of amendment application was also illegal and suit could not have been dismissed only on such technical misdescription which could be cured at any time by the Court. He submitted that there are myriad judgments on this point and he relied on some of them, in re Idol Shriji v. Gappulal and another 1978 JLJ 208; Ram Singh s/o. Sheodayal Singh Chhatriya and another v. Shri Rajiv Lochan Trust, Nawapara, Raipur 1991 MPLJ 863 and M/s. Nahan Industrial Enterprises Ltd. v. Swastik Coal Corporation Pvt. Ltd. 2014 SCC Online MP 5436. According to Shri Agrawal, dismissing the suit by the trial Court on such technical ground and approving said finding
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S.A.No.604/2014 by the appellate court is illegal in view of the facts and circumstances of the case when finding given by both the Courts holding that the appellant owned and possessed the property, therefore, suit could not have been dismissed on said technical ground.
9. Shri Dubey, learned counsel appearing for respondent No.1 while supporting the judgment and decree passed by the trial Court and affirmed by the appellate Court, submitted that the findings given by both the Courts below are findings of fact and being concurrent finding of fact, interference in second appeal, unless it is found to be perverse, is impermissible.
10. Perusal of the record reveals that the appellant has moved an I.A.No.9725/2021 under Section 100(5) of CPC saying that this Court can hear the appeal also on additionally proposed substantial question of law, though it has not been formulated by the Court at the time of admission. The appellant by way of said application has proposed the following substantial question of law, which according to learned counsel for the appellant, does involve in the appeal for consideration:-
(i) Whether the learned lower Appellate Court illegally dismissed the application
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S.A.No.604/2014 under Order 41 Rule 27 of CPC as also application under Order 6 Rule 17 of CPC, whereby the cause title of the suit was sought to be amended in the facts and circumstances of the case?
11. I have heard the learned counsel for the parties at length and perused the record.
12. As per paragraph 9 of its judgment, the trial Court observed that it is proved that the disputed land is owned by the Temple. Further in paragraph 13 of the judgment, the trial Court has observed that the suit has been filed in the name of 'Sarvarakar' and the plaintiff has pleaded himself in the said capacity only and as such he has not impleaded the owner of the property i.e. Temple. It is also observed by the trial Court that the declaration has not only been sought for title of the land in question, but it has also been sought that the plaintiff be declared 'Sarvarakar'. However, in the same paragraph, the trial Court has observed that the plaintiff is considered to be Sarvarakar of the Temple for the sake of argument. Thereafter, as per the observations made in paragraph 14 of the judgment, the trial Court has observed that it was proper on the part of the plaintiff to have impleaded the Temple as plaintiff and posed himself to be
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S.A.No.604/2014 Sarvarakar, but that cause title since did not contain the proper description of the plaintiffs, therefore, the trial Court opined that it was not proved that the disputed land is owned and possessed by the plaintiff. Further in paragraph 18 of the judgment, it is observed that after examining all material and scrutinizing the case, it is found that the defendants are constructing the road over the disputed land in accordance with law and as such the plaintiff is not entitled to get any permanent injunction. Finally, in paragraph 26 of the judgment, the trial Court has observed that though the name of the plaintiff has been recorded by the Tahsildar in revenue record as Sarvarakar on the disputed land but the plaintiff is also seeking declaration to that regard that he be declared Sarvarakar, therefore, it was obligatory for him to make all other persons as party in the suit who are legal representatives of the plaintiff's father or should have come with a specific stand that no other legal representative was available, but in the absence of any such plea, it appeared that the suit also suffered from non-joinder of the necessary party and thus refused to grant decree of declaration. In paragraph 27 of the judgment, the trial Court has further observed that on scrupulous scrutiny of material available, it is clear that the plaintiff failed to prove the fact that the
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S.A.No.604/2014 disputed land belonged to Temple and he is Sarvarakar of said temple.
13. Further, if the judgment of the appellate court is seen, it is clear that in paragraph 14, it has been observed that the disputed land belonged to Temple and name of the plaintiff was recorded in the revenue record as Sarvarakar. In paragraph 16 of judgment, the appellate court has observed that though the land is proved to be owned by Temple, but the fact that the plaintiff is owner of the said land remained unproved and as such the finding given by the trial Court has been affirmed by the appellate court. In paragraph 24 the appellate court has found that the judgment and decree passed by the trial Court is perfect and cannot be said to be erroneous and the appeal was accordingly dismissed.
14. The record also depicts that an application under Order 41 Rule 27 of CPC was filed alongwith several documents by the appellant and those documents relate to disputed property. One of the documents was the order of Registrar, Public Trust dated 01.10.1956 describing the immovable property of the trust saying that the said property is of public trust and also directed to form a managing trustee for fair management of the trust. Another document i.e. a Will dated 28.07.1927 creating the trust was also
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S.A.No.604/2014 produced which had been executed by Balmukund S/o. Kishan Sahay in favour of Ramjilal entrusting rights to manage the affairs of the property belongs to the Temple. After Ramjilal, his son Lalluprasad became Sarvarakar and after Lalluprasad, his son Mahadeo Prasad became Sarvarakar of the property and as such he is managing the affairs of Temple in terms of the Will by which the trust had been created. The name of Mahadeo Prasad is recorded in rin-pustika (Ex.P/1) and rin-pustika-part-2 (Ex.P/2) as Sarvarakar and also entered in the record of Nagar Panchayat Multai filed as Ex.P/9, P/10 and P/13. The order of Registrar, Public Trust dated 01.10.1956 contained the mode of succession and described as "permanent succession to heir-ship and manager-ship" and that mode is based on the Will of Balmukund.
15. The learned first appellate Court although rejected the application, but did not assign reason whereas the documents filed alongwith the application were public documents as is envisaged under Section 74 of the Indian Evidence Act. 1872, which reads as under:-
"74. Public documents,- The following documents are public documents -
(1) Documents forming the acts, or records of the acts-
(I) of the sovereign authority,
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S.A.No.604/2014
(ii) of official bodies and tribunals, and
(iii) of public officers, legislative, judicial and executive, of any part of India or of the Commonwealth, or of a foreign country; (2) Public records kept in any State of private documents."
16. Since the appellant in his application filed under Order 41 Rule 27 CPC assigned the reason for not filing the documents earlier and also stated therein as to how those documents were material and indispensable for enabling the Court to impartially adjudicate the issue inasmuch as the non-consideration of those documents would not lead to passing of an effective decree. The Will and the order of Registrar when very categorically disclosed the creation of trust and thereafter the mode under which Sarvarakar would be appointed and would discharge his obligation, I do not find substance in the order passed by the appellate Court rejecting the application under Order 41 Rule 27 CPC thereby disdaining the documents which are the public documents and were material evidence to arrive at a flawless conclusion. Accordingly, the application filed under Order 41 Rule 27 of CPC, is hereby allowed and the documents annexed therewith are taken note of.
17. In the available record as also in the pleadings of the parties, nowhere I find that at any point of time the family
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S.A.No.604/2014 of Ramjilal had ever raised any fingure with regard to mode of succession to the function of Sarvarakar. In absence of any such fact situation in the case, it was improper on the part of the Courts below to hold when a declaration of Sarvarakar is being claimed by the plaintiff, the other legal heirs were also required to be made party. Although a public notice was issued, in which, no objection was received, yet the finding given by the Courts below that the suit suffers from non-joinder of necessary party, does not appear to be justifiable or sustainable and therefore the said finding is hereby held 'perverse'.
18. Aam Janta (general public) was also not required to be made party as there was no dispute raised by anyone when for last so many years Mahadeo Prasad (plaintiff) has been performing the duties of Sarvarakar and entries in the revenue record were available. Ergo, the Courts below were not equitable or fair-minded in holding that Aam Janta should also have been impleaded.
19. At this juncture, it is worthwhile to appreciate the judgment rendered by this Court in re Idol Shriji (supra), wherein it has been observed in paragraph 9, as under:-
"9. Now, this takes me to consider the point of limitation raised in the cross-objection submitted on behalf of the respondent No. 1-defendant.
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S.A.No.604/2014 According to the learned counsel appearing for the respondent No. 1-defendant, the suit would be deemed to have been validly constituted after the trust was registered in the year 1969 and the plaintiff No. 2 (the other trustee) also made a party to the suit, which was sometime in the year 1972. He, therefore, Tied to contend that the rent due for the preceding three years prior to the date on which the suit was properly constituted alone could be decreed and not as claimed in the suit which was filed in the year 1961. In my opinion, the submission advanced is on an incorrect understanding of the true legal position. The bar provided by section 32(1) of the M.P. Public Trusts Act is not against filling of suits to enforce rights on behalf of public trusts but the bar is against the hearing or deciding such suits.
Therefore, all that the Court should do is to stay the suit till the public rust concerned is not registered under the said Act, which was done in the instant case. The trust was got registered on 14-11-1969 and a certified copy of the registration (Ex P-2) is on record. From the wordings of section 31 of the Act, it is clear that the said provision appears to be mere procedural not affecting the vested rights of the party as held in Jawaharlal Chhunnilal v. Ramkrishna Malik alias Jofarmal 1962 JLJ 969. That being so, it cannot be urged that when the suit was filed in the year 1961 without getting the trust registered it could not be entertained by the Court or to say there was no suit in the eye of law. So nothing turns on this point.
As regards the other connected point on the basis of joining plaintiff No. 2 (other trustee) sometime in the year 1972 it was tried to be contended that in view of the provisions of section 21 of the Limitation Act, 1963 the said plaintiff was a new plaintiff who was added to the suit subsequently as mentioned above and in the absence of whom the suit could not proceed and, therefore, the suit would be deemed to be properly constituted when she was made a party. In that view of the matter, the arrears of rent prior to the period beyond three years would be time
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S.A.No.604/2014 barred and no decree could have been passed for the realisation of the same.
It is no doubt true that in view of the decision of a Division Bench of this Court in Laxman Prasad v. Shri Deo Janki Raman : 1973 JLJ 904 all trustees ought to have been joined to represent the idol. But in the instant case it was not initially done and the other trustee was made a party to the suit in the year 1971 and shown in the array of defendants and later transposed as plaintiff No. 2 in the year 1972. Therefore, the defect in the representation, if any, stood cured. But then the question that arises for consideration is whether the joinder of plaintiff No. 2 was a correction or miss-description or an addition of a new party. In the instant case, the suit was filed in the name of an idol through Babulal and the other trustee (plaintiff No. 2) was not joined as a party at that stage. Therefore, the idol was not properly represented by all the trustees in the suit but by only one and the second trustee was left out. In such circumstances, if the second trustee was also later on added as plaintiff No. 2 it was only a proper representation of the idol and not one of addition of a new plaintiff. Under Note 37 of Order 1, rule 10, Chitaleys Code of Civil Procedure Vol. 2, 8th Edition, at page 552, it has been observed as under:-
"Where it is clear who the person who intends to sue or who is intended to be used is, but he, is described wrongly, it is a case of misdescription of parties which can be corrected by the Court at any time. Similarly, where relief is originally claimed by or against a party (such as an idol, a minor or a corporation) who has to be represented by some person, the proper representation of that party is a question of the description of the party, and not one of addition of new parties. A series of decisions of various High Courts have been cited in support of the proposition, which I need not reproduce here."
It is equally well settled that when an idol is substantially on the record of a suit from the beginning, the rectification of the original improper
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S.A.No.604/2014 representation by a proper representation cures all the original technical defects with effect from the date of institution of the suit, the rectification cannot be treated as the addition of a new party so as to attract the penal provisions of section 21 of the Limitation Act. I am supported in my view by a Division Bench decision of the Madras High Court in Subramania Aiyar v. M. Subba Naidu and another 21 IC 421 and another Division Bench decision of the same High Court in Kanda Ponnappa Naicken and others v.
Venkataseshaiyar and others AIR 1919 Mad. 809 wherein it has been held as under:-
"......that if some persons who have an interest in the trust sue to enforce the rights of the trust, the subsequent addition of more representatives out of time would not be within the mischief of S. 22 Limitation Act......"
Therefore, I am of opinion that the submission of the learned counsel for respondent No. 1- defendant does not survive on the second count also. I, therefore, hold that the arrears of rent claimed in the suit would not be time barred. I would also like to mention here that the approach of the lower appellate Court while deciding this point, although in favour of the appellant-plaintiff No. 1, by exercising the powers under the proviso to section 21 of the Limitation Act was not correct as it did not arise here in view of my opinion that the provisions of section 21 of the Act have no application at all."
20. Further, following the foot-steps imprinted in the case of Idol Shriji, the High Court again reached to similar view in re Ram Singh (supra) observing in paragraph 10 as under:-
"10. It is undisputed that Rajivlochan Trust is a Registered Trust under the M. P. Public Trusts Act; and the suit has, in fact, been brought for and on behalf of idol of Kuleshwar Mahadeo.
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S.A.No.604/2014 When an idol is substantially on the record of a suit from the beginning, the rectification of the original improper representation by a proper representation cures all the original technical defects with effect from the date of institution of the suit. The rectification cannot be treated as the addition of a new party so as to attract the penal provisions of Section 21 of the Limitation Act. Idol Shrift v. Gappulal and Anr., 1977 MPLJ 804, 1978 JLJ 208.
The following passage has been quoted with approval in the casereferred above Ramalinga v. Shivachidambara, AIR 1919 Mad. 809: "...... that if some persons who have an interest in the trust sue to enforce the rights of the trust, the subsequent addition of more representatives out of time would not be within the mischief of Section 22, Limitation Act......" In view of the law referred above, the prior permission by the trust committee was not necessary and the defect, if any, in filing of the suit, stands cured."
(emphasis supplied)
21. Over and above, taking aid of inflexible view in re Idol Shriji, the High Court in case of M/s. Nahan Industrial Enterprises Ltd. (supra) in paragraph 9 has observed as under:-
"9/ The Supreme Court in the matter of Purushottam Umedbhai and Co. v. Manilal and Sons reported in AIR 1961 SC 325 has held that if there is only misdescription of plaintiff, the plaint can be amended and in such a case strictly speaking Order 1 Rule 10(1) has no application. The Supreme Court in the matter of Jai Jai Ram Manohar Lal v. National Building Material Supply Gurgaon reported in (1969) 1 SCC 869 has held that in a case where the name in which the action was instituted was merely a misdescription of the
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S.A.No.604/2014 original plaintiff, no question of limitation arises and the plaint must be deemed, on amendment, to have been instituted in the name of the real plaintiff, on the date on which it was originally instituted. Same ratio applies in case of correction of the misdescription of a defendant. In the matter of Kurapati Venkata Mallayya v. Thondepu Ramaswami and Co.
reported in AIR 1964 SC 818 it has been held that in the case of misdescription of parties, it is open to the Court to allow an amendment of the plaint at any time and the question of limitation would not arise in such a case. In the matter of Puran Ram v. Bhaguram reported in AIR 2008 SC 1960 the Supreme Court placing reliance upon its earlier judgment in the matter of Jai Jai Ram Manohar Lal (supra) has reiterated that no question of limitation will arise when misdescription of the name of the original plaintiff or misdescription of the suit property arose in a particular case. In the matter of Vimal Chand Ghevarchand Jain v. Ramakant Eknath Jadoo reported in (2009) 5 SCC 713 it has been held that when a pleading is amended, it, subject to just exceptions, takes effect from the date when the original one is filed. This Court in the matter of Idol Shriji v. Gappulal reported in 1978 JLJ 208 in a case where the suit was filed on behalf of Idol and one of the trustee was joined later on as a party, has held that it is not a case of addition of a party and Section 21 of the Limitation Act will not be attracted. While holding so, this Court has relied upon the following observation made in Chitaley's Code of Civil Procedure, Vol.2, th Edition, Page 552:-
"Where it is clear who the person who intends to sue or who is intended to be sued is, but he is described wrongly, it is a case of misdescription of parties which can be corrected by the Court at any time. Similarly, where relief is originally claimed by or against a party (such as an idol, a minor or a corporation) who has to be represented by
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S.A.No.604/2014 some person, the proper representation of that party is a question of the description of the parth, and not one of addition of new parties. A series of decisions of various High Courts have been cited in support of the proposition, which I need not reproduce here."
22. Keeping in mind the enunciation of law in re Idol Shriji (supra), which has incessantly been followed, I find no reason to deviate from the immutable view by approving the findings of the Courts below. Accordingly, soliciting the ray of justice in the courtyard of fact-situation of the case at hand, I am of the firm opinion that the trial Court as well as first appellate Court both committed an error in dismissing the suit on the point that there was defect in framing of cause- title inasmuch as the plaintiff instead of making Temple as plaintiff, had himself filed the suit in the capacity of Sarvarakar and also sought declaration. However, the Courts below found that the land in question belonged to Temple, therefore, the declaration sought in the plaint could not have been denied on such technical ground as has been laid down by the High Court in the case of Idol Shriji (supra). Moreso, when an application for amendment was also filed by the plaintiff-appellant for correcting the cause title, the appellate court should not have culled it perfunctorily. In the circumstance, the amendment
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S.A.No.604/2014 application made by the appellant is also hereby allowed and as a consequence thereof, the cause-title as has been claimed to be described in the plaint and appeal shall be treated to have been corrected as per the application for amendment.
23. Now, I advert to the substantial question of law, quoted-above, which is proposed by the appellant to be framed in addition to the substantial questions of law on which appeal was admitted. In the light of discourse made in preceding paragraphs, this substantial question of law is also taken note of and is answered affirmatively.
24. Ex consequentia, the second appeal is allowed setting aside the judgment and decree dated 30.09.2010 passed by the trial Court in Civil Suit No.45-A/2010 and the judgment and decree dated 27.03.2014 passed by the first appellate Court in Civil Appeal No.14-A/2010 and the suit filed by the plaintiff No.1 namely Shri Ramchandraji Mandir Multai, though its Sarvarakar Mahadeo Prasad S/o. Lallu Prasad Bhargav, R/o. Housing Board Colony, Ganj Betul, Tahsil and District Betul is decreed.
25. The substantial questions of law are accordingly answered that the suit property belongs to Shri
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S.A.No.604/2014 Ramchandraji Mandir Multai and Mahadeo Prasad, Slo. Lallu Prasad is Sarvarakar of the said Temple.
26. let a decree be drawn accordingly.
No order as to costs.
(Sanjay Dwivedi) Judge SUDESH Digitally signed by SUDESH KUMAR SHUKLA sudesh DN: c=IN, o=HIGH COURT OF MADHYA PRADESH, ou=HIGH COURT OF MADHYA PRADESH, postalCode=482001, st=Madhya Pradesh, KUMAR 2.5.4.20=1d5e479f08e68eda8f9271dbbe2c4bc39162 64aec736f7c5f5885257f5eeaeb7, pseudonym=70EE703D36E97ABB20BA3C79C921929 E09400A16, SHUKLA serialNumber=7D462390C18350EF7C40811B12AB45 D82AF1259878762BAC356DCFA877F02654, cn=SUDESH KUMAR SHUKLA Date: 2022.03.23 10:51:41 +05'30'