Mahadeo Prasad vs Sarpanch
2022 Latest Caselaw 3906 MP

       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
                               -:-   2   -:-
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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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(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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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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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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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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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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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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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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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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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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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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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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(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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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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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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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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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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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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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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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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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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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'