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TMI Blog1981 (9) TMI 303X X X X Extracts X X X X X X X X Extracts X X X X ..... that in view of the fact that Sri Krishna Singh refused to deliver possession to the Math, Mathura Ahir (later known as Harswanand and who was duly installed as Mahant according to the tenets of Sant Mat) brought a suit for recovery of possession of the house in question from the possession of Sri Krishna Singh who was a trespasser and was asserting rights adverse to the Math. This suit for declaration of title and recovery of possession was decreed by the trial court of learned Munsiff, Varanasi. The defence taken by Sri Krishna Singh was rejected. In appeal, the Civil Judge modified the decree of the Munsiff but on further appeal to the High Court, the decree of the Munsiff was restored as a result of which the plaintiff's suit for possession was decreed. 3. Sri Krishna Singh then filed an appeal by special leave to this Court and that appeal, which was numbered as C.A. 1802/1971, was decided by us on December 21, 1979 and we affirmed the findings of the High Court and clearly held that the property in question belonged to the Math and that Sri Krishna Singh was a rank trespasser In fact, this Court referred to the evidence of Sri Krishna Singh himself where he admitted th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... held that the house in suit was acquired by Swami Atmavivekanand from out of the offerings (Bhent) made by his disciples and therefore, was not his secular property, but was an accretion to the Garwaghat Math.... The cause of action did not die with the plaintiff. In the circumstances, the respondent No. 1, Harshankaranand, who claims to be the Mahant, has the right to contest the appeal as representing the math, being the de facto mahant, for preservation of its properties.... In the instant case, the appellant himself has, of course, without prejudice to his rights to challenge the right of the original plaintiff, Harsewanand, to bring the suit, substituted respondent No, 1, Harshankaranand, s his heir and legal representative,.... In his reply, the respondent No 1, Harshankaranand, alleges that after the demise of Mahant Harsewanand he was duly installed as the Mahant of Garwaghat Math by the 'Sant Mat' fraternity. He further asserts that he was in possession and enjoyment of the math and its properties. The fact that he is in management and control of the math properties is not in dispute. (Emphasis supplied) 6. Thus, the combined effect of the admitted findings ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... possession from the trespassers, namely, Sri Krishna Singh and others. 10. Thereafter, it appears that Sri Krishna Singh filed a suit before the Civil Judge, Varanasi mainly for a declaration that Harshankaranand had no title to the property and had no right to recover possession from the plaintiff. In the body of the plaint, however, Sri Krishna Singh had repeated the self-same allegations which he had made in plaint of the previous suit which was the subject-matter of the appeal arising from the suit decided by this Court. Perhaps, Sri Krishna Singh may have mentioned this fact by way of narrating the history of the case because in the main relief he had only prayed for a declaration that Harshankaranand was not a duly installed Mahant of the Math. 11. We should have expected that after decree for possession was passed by this Court on December 21,1979 affirming the judgment of the High Court, the executing court would at once deliver possession of the property to Harshankaranand. 12. As this was not done and the matter was delayed on one pretext or the other at the instance of Sri Krishna Singh, an application was filed in this Court for taking proceedings for contempt ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... have discharged the notice for contempt and would have seen to it that our orders were complied with. Unfortunately, however, it now transpires that Sri Krishna Singh seems to have adopted subterfuge in order to nullify the execution of the decree. 15. We are rather amazed to find that the totally unwarranted plea taken by Sri Krishna Singh seems to have found favour with the Civil Judge who readily accepted the prayer of Sri Krishna Singh of staying the execution of the decree without realising the scope and ambit of Order XXI, Rule 29. Under this provision, jurisdiction has to be exercised with very great care and only under special cases. The Civil Judge also prima facie held that Harshankaranand was not a legal representative of late Mahant when this question was only left open and had to be decided by the Civil Judge. This shows the casual and perfunctory approach which was made by the Civil Judge. It is rather unfortunate that even the District Judge in revision affirmed the order of the Civil Judge. 16. There is yet a very formidable defect in the order passed by the Civil Judge. Under Order XXI, Rule 29 jurisdiction is vested only in the Court which had passed the dec ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... etition in the High Court. That, however, is of no consequence because in view of our finding, the writ petition would become infructuous. Thus, taking an overall picture of the situation, we are constrained to observe that despite the clear directions contained in the decree of the High Court as also of this Court, the Civil Judge made no attempt to comply with the decree passed by the Court but used his discretion to perpetuate injustice so as to continue and legalise an unlawful and wrongful possession of a person who had been held to be a rank trespasser by the High Court as also by this Court. The execution was stayed at the instance of a person who had exhibited an adverse interest to the Math properties and was not at all concerned with the preservation of the Math properties. As a de facto manager Harshankaranand could recover the property for the benefit of the Math from the possession of the trespassers and there was no occasion for the Civil Judge to have resorted to the extraordinary discretion under Order XXI, Rule 29 of the Civil Procedure Code, even if it was applicable. 20. It was contended by Mr. Asthana that Harshankaranand in his application for execution the ..... X X X X Extracts X X X X X X X X Extracts X X X X
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