P L D 1969 Dacca 326 (PLP)

MAHMUD HOSAIN, J.‑This appeal on behalf of the defen dants 1 to 3, 10 to 12 and 16 to 18 is against the judgment of the learned Subordinate Judge passed in a suit for declaration of plaintiff's title to and for recovery of possession in the disputed property. Plaintiff respondent No. 1 Radha Krishna Jew represented by shebait Birendra Roy filed a suit asserting that the property belonged to Abhoy and his wife Nittamoyee who had no issue. They installed Radha Krishna Jew bigraha in their homestead and in order to defray expenditure of the bigraha they transferred the property in favour of the said bigraha by a registered deed dated 2nd Falgoon, 1346 B. S. It is asserted by the plaintiff that the property has been treated as debuttar property and the income thereof used to be spent for the purpose of the birgaha and shebait and for holding daily and annual pujas. Abhoy was the first shebait of the deity (bigraha) and after his death his wife Nitta moyee became shebait and thereafter defendant No. 23 Girindra Chandra Ghose became the shebait and under the terms of the deed defendant No. 23 is to reside in the homestead of Abhoy. There is a condition in the deed that in case Girindra fails to fulfil the conditions of the deed, the next shebait would be Rejendra Nath Roy, brother of Nittamoyee and thereafter the sons of Rajendra would be the shebait. It is asserted by the plaintiff that defendant No. 23 before going to Hindustan made him (Birendra Nath Roy) a shebait of the deity by a written document and that a Board of Trustee was also appointed as per terms of debuttar deed to look after the affairs of the property because some members of the Board of Trustee died and some went to Hindustan and some due to old age declined to act as trustee. The new trustees were selected in a meeting held in 1360 B. S. from the villagers of Banagram and Baitali. The trustees approved the appointment of the plaintiff as shebait. The plaintiff became shebait on 23‑11‑53 corresponding to 28th Magh 1360, B. S. and has been working as shebait of the deity since then. Defendants 1 to 4 and predecessor of defendants 5 to 9 and 10 to 19 tried to disturb the plaintiff in 1360 B. S. asserting that they had purchased the suit property from one Suresh, son of Mahesh, a brother of Abhoy and some of the defendants also claimed the disputed property by virtue of purchase from one Atindra, grand son of Kali Kishore, another, of Abhoy. The plaintiff asserted that these kabalas were fraudulent deeds and the defendants could not claim any title by virtue of these kabalas gas properties are debuttar properties and Suresh and Atindra could not inherit the property in any manner. It is further stated by the plaintiff that the defendants created disturbance in his possession and as such there was a criminal case under section 144 of the Code of Criminal Procedure after the expiry of the proceeding the defendants forcibly entered into the possession of suit plot No. 396 and the plaintiff on behalf of the deity resisted; as a result there was a criminal case against the defendant No. 4 who gave a ballam blow to the plaintiff. That a criminal case under section 147 of the Penal Code was initiated against defendants 2, 4, 10, 15, 18 and 19 who were convicted and the conviction was upheld up to the appellate Court. Thereafter the defendants again threatened the plaintiff who then started a case under section 107 of the Penal Code and the proceeding was dropped as the defendants gave an undertaking. Thereafter the defendants further threatened to dispossess the plaintiff, so the plaintiff filed the Suit No. 158 of 1955 on 16‑8‑66 for permanent injunction and obtained an injunction order which was reversed by the appellate Court. Thereafter a Revision Case was filed in the High Court which was struck off at the absence of both sides. The said Title Suit No. 158 of 1955 was ultimately dismissed for default and the documents filed on behalf of the plaintiff in that suit were lost and the plaintiff could not recover those documents except the deed of debuttar. Thereafter the defendants in collusion with one another entered the suit land in January, 19:6 and dispossessed the plaintiff from the suit land except plot No. 47 of Schedule 2, which was the homestead and the place where bigraha was installed. There was an F. I. R. filed by tire plaintiff about the theft and thereafter a new bigraha was installed and regular and annual pujas are being held in terms of debuttar deity. The suit property being dedicated to the deity, the debuttar deed should be declared as legal and valid. Defendants 1 to 4, 10 to 18 filing a joint written statement contested the suit. Their main assertion is that the story of installation of bigraha is a myth and there was no deity at all and there was no transfer of the suit property for the said deity by Abhoy for defraying the expenditure of the Shebait, bigraha and for holding daily and annual pujas. They asserted that the debuttar deed is a sham transaction and never acted upon and that the property has always been treated as personal property of Abhoy and after his death Nittamoyee treated the same as her own during her lifetime and thereafter the property vested in Suresh and Atindra as reversioners. The contesting defendants asserted that they purchased the property from the said reversioners Suresh and Atindra in 1360 B. S. and have acquired good and valid title to the property and that the plaintiff has no right, title and interest in the property and the suit is liable to be dismissed. The learned Subordinate Judge after hearing the parties decreed the suit with costs. As against this the above‑named appellants preferred this appeal. Mr. Meser Ali, learned Advocate appearing on behalf of the appellants has contended that there was no dedication of the property to the deity and the alleged deed of debuttar is collusive one and was never acted upon. The suit property was the personal property of Abhoy and Nittamoyee which ultimately devolved on Suresh and Atindra as reversioners who made a valid transfer of the same to the contesting defendants by registered sale deeds and delivered possession and that they have been possessing the same since their purchase. The learned Subordinate Judge made a detailed discussion as to installation of the deity by Abhoy. The parties also led evidence on the point of installation of deity although in plaint, the plaintiff made no detailed statement as to when and how the deity was installed. The only statement in the plaint is that there was a transfer of this property in favour of the deity by registered deed in 2nd Falgoon, 1346 B. S. corresponding to 15th February 1940, by Abhoy and Nittamoyee. The question of installation of deity in our view, is not so material for the purpose of disposal of this appeal since the question before us is whether there was valid transfer of the property in favour of the deity as alleged by the plaintiff. The mere installation of deity would not go to prove that some properties have been transferred in favour of the said deity. In that view of the matter the question of installation of deity which has never been made in the body of the plaint though evidence have been adduced by the parties, in our view need not be considered for the present. The specific case of the plaintiff is that the suit property was transferred in favour of the deity by Abboy and Nittamoyee on 2nd Falgoon, 1346, B. S. Before we proceed to discuss this point, it is necessary to note that the documents that were produced on behalf of the plaintiff in the trial Court were admittedly taken away by the plaintiff on 2‑9‑61 and thereafter attempts were made to get those exhibits from the plaintiff and we find an order of the Court recorded on 1‑3‑67 in presence of the learned Advocates for the appellants and respondents. "1‑3‑67.‑One week's time is allowed to put in the requisites under report. In default, the appeal will proceed without the wanting exhibits at the risk of the party concerned." It appears that these exhibits were not produced thereafter within the period allowed. It appears from the record that on 17‑4‑67 Mr. M. A. Khalid filed an application for acceptance of certified copy of the deed of endowment Exh. 1 and Exhs. 9 (b), 10 (a) and 11 with a prayer for acceptance of those as additional evidence and obtained an order from the Court for printing the application as well as the documents as part of the paper book allowing the admissibility of these documents to be considered at the time of the bearing of the appeal. The learned Advocate appearing on behalf of the respondents filed a supplementary paper book which included that application and the order of the Court passed thereon and certified copy of Exh. 1 Debuttar deed executed by Abhoy and Nittamoyee in favour of Sree Radha Krishana Jew, Exh. 9 (b) union tax realisation receipt in favour of Birendra Chandra Roy. Exh. 10 (a) is the letter to Birendra Chandra by Sridhar and Exh. 11 is the ration card. In paragraph 6 of the said applica tion the learned Advocate has stated: ‑ "That the plaintiff Birendra left for India by June/July 1964. The exhibited documents which were in the custody of Birandra as Shebait were lost and were not handed over to Harendra who became Shebait of the Deity on 21st January 1964." He further stated in the said application that after a thorough search he could only recover Exhs. 9(b), 10(a) and 11 from the son‑in‑law of respondent No. 1 Mr. Khalid, learned Advocate appearing for the respondent No. 1 was asked to state as to whom he meant by respondent No. 1 as referred in that petition. To that he made a statement that he meant Birendra as respondent No. 1 as he has filed power on behalf of the present Shebait Harendra. It also appears from the order book that the appellant filed an application before the Court on 10‑5‑67 under Order LXI, rule 27 of the Code of Civil Procedure for admitting a receipt dated the 6th day of May 1964, granted by Birendra Chandra Roy and the Court also passed an order on the same day directing him to include it in the paper book the question of admissibility to be considered at the time of hearing of the appeal. That document has also been included in this appeal in a supple mentary paper‑book. As stated above, the plaintiff‑respondent No. 1 took away all the documents and failed to produce them except three original exhibits as referred to above together with a certified copy of the debuttar deed. The list of documents admitted in evidence for the plaintiff shows that a number of documents were filed. The material documents which could prove whether the suit property was a debuttar or not, were Exh. 13 series, certified copy of the judgment in Title Suit No. 37 of 1955, judgment in G. R. Case No. 290(2) of 1954, certified copy of order sheet in Case No. 17(4) of 1954 and certified copy of order sheets in T. S. No. 37 of 1955 under Order Ix, rule 13, C. P. C. These documents could be produced by the plaintiff by obtaining certified copies thereof. Since these documents are not before us we cannot get the advantage of examining them for the purpose of ascertaining how the plaintiff treated the suit property in those proceedings. The sworn application dated 5‑4‑67 filed on behalf of the plaintiff‑respondent shows that the documents were lost while in custody of Birendra Chandra Roy and these were not handed over to Harendra who became Shebait on 21‑1‑

64. The present Shebait, Harendra having failed to produce all those exhibits received by his prede cessor Shebait, cannot now get advantage for non‑filing of those exhibits, if any adverse presumption is made for non‑production of those exhibits and it is more so as there is no allegation by the present Shebait about the conduct of his predecessor Shebait. The document filed on behalf of the appellants for the purpose of accepting as additional evidence is a receipt granted by Birendra Chandra Roy, the original plaintiff dated 6th May 1964, which shows that the decree obtained by him in the present suit out of which the present appeal has been filed has been fully satisfied and he has no claim and due in respect of the same against the judgment‑debtors. Therein Birendra Chandra Roy further acknowledged the right, title and interest of the judgment‑debtors and withdrawing and foregoing any such claim on behalf of the deity. This document does not lead us anywhere since this Birendra Chandra Roy filed the suit as Shebait and then he left this country for good and another Shebait has been appointed in his place. As per discussion above it is now necessary to discuss the question as to how far the debuttar deed has been acted upon by the creator of the deed and subsequent to that by the Shebaits who succeeded the original Shebait one after another. The learned Subordinate Judge took the view that there is no evidence to show that there was any trouble over the property and any circumstances which could be said to be a reason for creating a document like Exh. 1 and it should be taken that there was no collusion in the execution of this Exh. 1, the debuttar deed. But that aspect cannot be taken for consideration for the purpose of examining a document whether it has been acted upon or not, in view of the fact that the executant of the document made himself the first Shebait of the property transferred in favour of the deity. It has been stated in the deed itself that from the date of the execution of the said deed there should be mutation of the name of the deity in the landlord Sherista and that the deity would pay the rent of the said property. For the document of this nature, it is essentially necessary for the executant to show that in fact possession of the property was transferred to the deity and that the donor completely divested himself of the ownership of the property because the donor and the donee are the same person. The donor himself made it clear in the deed that the transfer made by him would get its recognition before the landlord and if it is proved then that will be an evidence of effective transfer of the ownership of the property by the doner besides the oral evidence to the effect that there was a mutation. No papers were called from the landlord sherista and the rent receipt which has been produced does not show that the rent was paid on behalf of the deity. Exh. 9( b), the union tax receipt issued in favour of Birendra Chandra does not show that this receipt was granted to him as a Shebait and similarly the ration card Exh. 11 does not indicate that this card was issued to him as a Shebait of that deity. Similarly Exh. 10(a) which is a letter addressed to Birendra by Sridhar Goswami does not indicate that the suit property was debuttar property. The contents of the letter only expresses the good wishes of Bijaya and that Sridhar wanted to know whether Sheba Puja was performed daily and annually. The Sheba Puja of a deity does not mean that there was a property owned by the deity in pursuance of a debuttar deed. So Exhs. 9(b),10(a) and 11 which were produced on behalf of the plaintiff do not in any way prove the case of the plaintiff that this property was treated as debuttar property. The number of documents which were produced on behalf of the plaintiff and which were taken away and not re‑filed before us also do not indicate that these documents if produced would in any way lead us to a conclusion that the property was a debuttar property. We also say so because of the inaction of the plaintiff-respondent in this regard. P. W. 2 Aswini Kumar Roy, who is an attesting witness of the debuttar deed proved his signature in this Exh. and his signature was marked as Exh. 10(a). He admitted that he was a trustee of the debuttar property under the deed. He has admitted that he is an agnatic cousin of the plaintiff and he admitted that there was account of income and expenditure of the debuttar property and such account was maintained all along and lastly he said "I cannot say what happened to the accounts of the property". P. W. 3 Manmatha Kumar Chowdhury, an officer of Athara bari Estate stated that in the landlord sherista name of Radha Krishna deity was mutated and that Abhoy was the first Shebait who paid rent and got receipts as Shebait. He proved Exh. 2 as rent receipt granted by him. Unfortunately this Exh. 2 is not before us. He stated that some documents of their landlord were stolen from the record room. He could not recollect when the jama was opened in the name of the deity. P. W. 7 Birendra Chandra Roy who filed the suit as Shebait of the deity in his examination‑in‑chief stated that "the dakhilas were destroyed by white ants along with other accounts of the debuttar and the kabalas of the property". So the statement to the effect that the documents were filed in Title Suit No. 158 of 1955 and lost appears to be an incorrect state ment. This plaintiff P. W. 7 further stated that he went to the Atharabari estate's office in search of the counterfoils but he was told that the papers were sold away, whereas the officer of the Atharabari estate examined as P. W. 3 stated that some of those documents were stolen away from record room. This P. W. 7 admitted that he did not call for any record from the landlord but he made enquiry from the Sadar Tahsildar and Manager about 3 years ago, that is in Magh 1363, B. S. and could know that the papers were destroyed by white ants and that he made this enquiry from the landlord sherista before filing the present suit. So P. W. 7, the plaintiff fails to prove the story of mutation and for that matter having a rent receipt from the landlord sherista as Shebait of the debuttar property. So the doner of Exh. 1 who made it very clear in the body of the document that there should be proper mutation of the property dedicated by him, has not been given effect to and the mere oral statement to the effect that there was a mutation and rent was paid on behalf of the deity cannot establish that the property was s treated as a debuttar property and that deed of debuttar was accordingly acted upon. The best evidence in this behalf was the paper of the landlord sherista, which had not been produced before the Court and in the absence of this paper it cannot be said that the Intention of the donor to mutate was carried out even by himself. P. W. 1 is the priest of the bigraha who stated that the plaintiff managed the expenses from the very beginning. He stated that "the trustee know about the account of the debuttar property. Account is being maintained from 1362 B. S. or so". P. W. 2 an attesting witness to the deed stated that account of this debuttar property was maintained but he could not say what happened to the accounts of the property. P. W. 4 stated "there is account‑book showing income and expenses from 1360 B. S. We enquired about the affairs of de buttar and the deity." This P. W. 4 stated that he became a trustee in 1360 B. S. and he admitted that before he became a trustee troubles arose with regard to the property. P. W. 7 the plaintiff himself admitted accounts being maintained but he failed to produce any paper in support of his assertion. So the best evidence to prove the fact that the debuttar property was treated as such, is by production of relevant account papers, but unfor tunately those papers have not been produced. The plaintiff sought to show that there was no trouble in 1346 B. S. which could be a ground for creating collusive document like Exh.

1. The accounts which have been produced are only after 1360 B. S. on the presumption that there was no trouble prior to 1360 B. S. when the appellants purchased the property. But P. W. 4 stated that there were troubles in respect of the debuttar property from before 1360 B. S. So the attempt made on behalf of the plaintiff to prove that he was in peaceful possession of the property as debuttar one since its creation and since 1360 B. S. troubles arose, is belied by P. W.

4. It is argued on behalf of the appellant that as per deed of debuttar whenever any vacancy occurs in the office of the trustee that should be filled up, but it appears no such attempt to fill up the casual vacancy was made on behalf of the shebait and there was no reconstitution of the Board of Trustee before. We find that it was only in 1360 B. S. a Board of Trustee was created. According to the learned Advocate for the appellant it has been done in order to give a colour that the debuttar deed was acted upon. Be that as it may the troubles that arose before 1360 B. S. must be by reversioners who thereafter transferred the suit property to the defendants. There is no evidence to the effect that there was formal dedication of the property to the deity. The debuttar deed was sought to be proved only by P. W. 2, an attesting witness to the deed. In the present case when the donor and the donee are the same person and when no overt act has been proved in support of the plaintiff's case that there was a valid transfer in favour of the deity, we are unable to accept that the debuttar deed was acted upon so as to give its effect in the present case. Mr. Meser Ali, learned Advocate appearing for the appellant refers us to a decision reported in Bhekdhari Singh and others v. Sir Ramchanderji and others (A I R 1931 Pat. 275) in order to show that in a case where the donor and the donee are the same, there must be some over act by the donor to show that the possession of the property was transferred to the deity. This decision lends support to our view already expressed above. In these circumstances we allow the appeal with costs. The judgment and decree of the trial Court are hereby set aside, and the suit is dismissed. BAQUER, J.‑I agree. A. E. Appeal allowed.