Bishwambhar Saran Deo Chella v. Sri Bhagwati Saran Deo

Patna High Court MJC No.1114 of 2011 (18) dt.01-03-2013 2 defendant No. 1 was also made. During the pendency of the said suit, the plaintiffs filed a petition for interim injunction restraining defendant No. 1 from selling the Math Properties. The same was contested by the defendant. The learned Trial Court after hearing the parties found that defendant No. 1 had in the past alienated some properties of the Koeladeva Math. Learned Trial Court, on a careful analysis of the case of the parties, found that plaintiff No. 1 and defendant No. 1 got their respective families and it was claimed that the properties of the Math are being sold for the satisfaction of personal need of defendant No. 1. There was, thus, a need to check the same. Accordingly, by the said order dated

1.11.2000, defendant No. 1 (opposite party herein) was directed not to sell the Math property without the prior permission of the Court. It would be advantageous to extract the relevant part of the order of the learned Trial Court:- “In the circumstances, I feel to direct defendant no. 1 not to sell even an inch of the Math land or any properties presumed to be the Math property to be the Math property unless a propriety, legality and regularity in the light of the total annual income with expenditure is tested by the Court. The defendant no. 1 is henceforth directed not sale the Math properties without the prior permission of the Court.” Aggrieved thereby, the defendant No. 1 filed M.A. No. 38 of 1990. After hearing the parties, the said appeal was Patna High Court MJC No.1114 of 2011 (18) dt.01-03-2013 3 disposed of by order dated 1.11.2000 relevant part whereof having bearing on the present proceeding (as culled out in paragraph 3 thereof) reads thus:- “3. I find no reason to interfere with the impugned order after a lapse of more than 11 years. However, in the fitness of things, it was desirable to direct the plaintiff no. 1 also not to transfer Math property without prior permission of the court and, accordingly, both defendant no. 1 as well as plaintiff no. 1 of Title Suit No. 23 of 1988 are restrained from transferring the math Properties without permission of the court. The impugned order is modified to this extent.” During the currency of the aforesaid order passed by this Court in M.A. No. 38 of 1990, the opposite party executed 7 permanent lease deeds in favour of 7 persons of Mathura Property of the Math on diverse dates (Annexure-2 series to Annexure-7 of the supplementary affidavit of the petitioner). The appellant found those executions of permanent lease deeds as breach of the order dated 1.11.2000 passed in M.A. No. 38 of 1990. Hence the present application. I have heard Sri Uday Shankar Sharan Singh appearing in support of the application and Sri Abhimanyu Sharma appearing on behalf of the opposite party. Parties have already exchanged pleadings. Learned counsel for the petitioner submits that on perusal of the documents of permanent lease deeds enclosed with Patna High Court MJC No.1114 of 2011 (18) dt.01-03-2013 4 the supplementary affidavit, it would appear that a noble method of alienation has been devised to sell the property belonging to the Koeladewa Math. He drew attention of the Court to the various contemplations made in those deeds. It has, thus, been submitted that the opposite party has wilfully and deliberately disregarded the order of this Court and is, therefore, liable to be proceeded against and punished in terms of the provisions contained in Order 39 Rule 2A of the Code of Civil Procedure (for short “ the Code”) Per contra, Mr. Sharma, Counsel for the opposite party, contended that from perusal of the suit property attached with the plaint, it would appear that the lease deeds have been executed not in respect of properties of Koeladewa Math. Any order of restrain would relate to the properties in dispute. The Math may have diverse properties but the property in dispute would mean the property which have been scheduled in the plaint by the plaintiff. It is next contended that defendant No. 1 had himself earlier executed a deed of lease in respect of the properties in favour of one Birendra Kumar Agrawal and subsequently filed an affidavit (Annexure-C to the show cause filed on behalf of the opposite party) explaining therein that such execution of deed was deemed necessary for upliftment of the financial condition of the deity called Thakur Radhakant Jee and the said property/land was Patna High Court MJC No.1114 of 2011 (18) dt.01-03-2013 5 not the property/land of Koeladewa Math. It has, thus, been submitted that the property in respect to which the lease deeds have been executed are not the properties of the Koeladewa Math and, therefore, not in the dispute. He argued that the defendant No. 1 cannot be allowed to blow hot and cold at the same time. Mr. Sharma further extended, referring to the lease deeds (Annexure-2 series to Annexure-7 of the supplementary affidavit) that from perusal thereof it would appear that the lease deeds have been executed in favour of the existing tenants with a view to increase earnings of the deity/Math therefrom which, according to these lease deeds, are to be deposited in the account of the Math held in a Bank. The purpose of the lease deed was not to alienate the property but to enhance the earnings therefrom for the benefit of the deity. Execution of those deeds, therefore, should not be treated as documents of alienation for his own gains. Before adverting to the rival submissions of the parties, let it be recorded that there is agreement at bar that the Math in question is now under the superintendence of the Bihar State Board of Religious Trusts and the earnings of the property are being deposited in the Bank account. It has also been informed by the opposite party that he has been appointed as Mahanth of the Koeladewa Math. Patna High Court MJC No.1114 of 2011 (18) dt.01-03-2013 6 On a careful consideration of the submissions of the parties and the facts brought on record, it appears that the learned Trial Court was propelled to grant injunction against the defendant in the light of the fact that alienations, if any, was for personal gains of the rival claimant(s). The said order was modified on appeal by this Court by order dated 1.11.2000 passed in M.A. No. 38 of 1990 whereby both the parties to the suit namely the plaintiff No. 1 as well as defendant No. 1 (the petitioner herein) were restrained from transferring the Math Properties. The question is whether in the setting of facts noticed hereinabove, the opposite party has deliberately intended to disobey the order of the Court? The opposite party has submitted, which has not been disputed by the petitioner, that alongwith the plaint the properties belonging to Koeladewa Math has been enclosed and the properties in respect whereof lease deeds have been executed by the opposite party (plaintiff of Title Suit no. 23 of 1988) with a view to enhance the earnings of the deity/Math are not set out therein. It further appears from perusal of the lease deeds that there is clear contemplation that rents/earnings therefrom shall be deposited in the Bank Account of the Math/Deity. It is further seen that the defendant No. 1 (appellant of M.A. No. 39 of 1990) had in the same manner executed lease documents in favour of the pre- Patna High Court MJC No.1114 of 2011 (18) dt.01-03-2013 7 existing tenants of the deity and subsequently filed an affidavit in support thereof to clarify that the said property did not belong to Koeladewa Math for which the suit was pending. A clarification was also made that such execution of lease was deemed necessary for improving the financial condition of the Deity/Math. It further appears that present grievance with regard to execution of 7 permanent lease deeds executed by the opposite party are also in relation to those properties. In such a situation, whether it can be said that there has been complete alienation of the property through those permanent lease deeds and that too for the personal gain of the opposite party. Related consideration would be whether the properties in respect of which the permanent lease deeds have been executed in favour of pre-existing tenants did belong to Koeladewa Math? Another issue which would be germane for consideration would be whether there has been deliberate and/or intentional disobedience of the order of this Court at the hands of the opposite party? Few facts relevant for such consideration again need to be highlighted. The learned Trial Court passed the interim order restraining the defendant No. 1 (petitioner) from alienating the property of the Math after having been satisfied that such alienation(s) are likely to be made for personal gains of the parties. Patna High Court MJC No.1114 of 2011 (18) dt.01-03-2013 8 The said order was modified on appeal by this Court whereby both the parties to the suit were restrained from alienating the property of the Koeladewa Math without seeking leave of the Court. From perusal of the lease documents, it is more than explicit that the purpose of execution of lease deeds on permanent basis was to increase the earnings of the deity/Math therefrom. The rent therefrom is to be deposited in the bank account of the deity/Math. The purpose of execution of those deeds, therefore, was not to get undue gain by the executor. Secondly, part of the property held by Thakur Radhakant Jee was earlier leased in similar fashion by the petitioner during the currency of interim order passed by the learned Trial Court and, as such, there was an occasion to clarify by affirming an affidavit by him (Annexure-C to the show cause filed by opposite party) wherein it was stated/clarified that property of Thakur Radhakant Jee was not the property of Koeladewa Math. There appears to be no dispute that the 07 permanent lease deeds executed by the opposite party complaining thereagainst the present proceeding has been launched are also in respect of the tenanted premises of the property held by Thakur Radhakant Jee. In the background of these facts, can it be said that the opposite party has deliberately/willfully acted in disregard of the order passed by this Court? As I have noticed above, the Trial Patna High Court MJC No.1114 of 2011 (18) dt.01-03-2013 9 Court restrained the defendant from alienating the property of Koeladewa Math after being satisfied that such alienations were to be made by the parties to the suit, particularly the defendant thereof, for his personal gains. The said order of injunction was modified by this Court in M.A. No. 38 of 1990 and was made applicable to both the parties i.e. the plaintiff No. 1 and the defendant. The question, therefore, assumes relevance as to whether execution of the present deeds is for personal gains. The answer would be in negative. The issues raised through this application would merit consideration from different angle also. Any order of injunction passed by the Court would relate to the properties in dispute in suit. The Court, when such complaint is made, would naturally advert to the suit to find out whether the said property was included in the suit property. Both the parties have admitted before this Court that the property in respect of which the permanent lease deeds have been executed by the opposite party are not included in the suit. If that be so, whether the opposite party can be held to have willfully/deliberately acted in breach of the order passed by this Court in M.A. No. 38 of 1990? The answer, in my considered view, would again be in negative. The matter can be considered from yet another angle. Patna High Court MJC No.1114 of 2011 (18) dt.01-03-2013 10 The defendant No. 1 (petitioner) himself had executed lease deed in favour of tenants of the part of the property and filed affidavit clarifying therein that purpose of such execution of document was to improve the financial condition of the deity/Math and that those properties did not belong to Koeladewa Math and thus in dispute. Can he be permitted to raise a grievance that the present lease deeds, although made on permanent basis, but in respect of same property, would constitute wilful disregard of the order of this Court? In the facts and circumstances of this case, the answer would be in negative. While recording reasonings/findings hereinabove, this Court has kept in focus the background under which the initial order of injunction restraining the defendant of the suit from alienating the property of the Koeladewa Math or the Math was passed by the learned Trial Court which was modified by this Court in the manner noted above. Even going by the terms and conditions of the lease deeds, it cannot be said that such execution was for any personal gain of the executor. In the light of discussions above, this Court is not satisfied that a case of wilful/deliberate breach of the order passed in M.A. No. 38 of 1990 at the hands of the opposite party is made out warranting action in the matter. Patna High Court MJC No.1114 of 2011 (18) dt.01-03-2013 11 The application, therefore, deserves to be dismissed. I order accordingly. Pankaj/- (Kishore Kumar Mandal, J)