Arjun Nath and Another vs Kailash and Others

J.N. Bhat, J.—This is a revision petition against the order of the learned District Judge Srinagar dated 6-5-64 whereby he has dismissed an

appeal against the order of the First Additional Munsiff Srinagar dated 16-11-63. The First Additional Munsiff had returned the plaint of the

Petitioners for presentation to the proper Court as in his opinion the suit was not competent under the provisions of Section 92 CPC and further

held that the suit should have been brought in the Court of the District Judge. This order of the First Additional Munsiff was upheld by the learned

District Judge. It is against this order that this revision has been filed by the Petitioners.

Two gentlemen, Sh. Arjun Nath and Radha Krishan, Petitioners before me, had brought a suit for declaration against two persons Jia Lal Ganju

(since deceased whose legal representatives have been brought on record) and Jia Lal Khushoo praying for various reliefs which shall be

mentioned presently. The suit of the Plaintiffs was that at Narsingarh Srinagar there exists a temple known as Mandir Khakchowk 'a public temple

and a religious place of worship for all Hindus of Srinagar'. The Plaintiffs are also Hindus and are interested in the worship of Lord Shiva which is

installed at the Mandir. They had evinced deep interest in the upkeep and maintenance of the temple. The plaint proceeded to stale that Defendant

1 Jai Lal had managed to get himself called as the Pujari or the Mahant of the shrine. He was neither a Pujari nor a Mahant. There were some land

acquisition proceedings. In those proceedings there was a compromise and by means of that compromise Rs. 10,000/ were kept with Defendant

A sum of Rs. 33500/-which was lying in deposit with the Collector was to be got by Defendant 1. The plaint is a long one but portions relevant

to the disposal, of this petition alone have been mentioned. The reliefs claimed were.

(a) That Defendant 1 is neither a Pujari nor a Mohtimim of the Mandir Khak Chowk.

(b) That the sum of Rs. 33500/- lying in deposit with the Collector Srinagar is the property of the deity at Mandir Khak Chowk.

(c) That the Defendant No. 2 has no right to keep the money in fixed deposit in the Punjab National Bank in his own name and to deal with it in

any manner whatsoever.

(d)That the owner of Rs. 10,000/- standing in the name of Defendant 2 is the deity at Khakchowk.

(e) For permanent injunction restraining the Defendants from dealing with the properties of the temple and in particular with the sums as shown in

(b) and (d).

(f) For accounts with costs he passed in favour of the Plaintiff against the Defendants. Any other relief which the Court declares the Plaintiff entitled

to may also he granted.

An objection was taken by the Defendants that the suit was not maintainable in the Court of the First Additional Munsiff and was not competent

because the Petitioners Plaintiffs had not secured the consent in writing of the Dy. Commr to institute the suit and therefore the suit was barred

under the provisions of Section 92 of the Code of Civil Procedure, and further that the proper Court to entertain such a suit was the principal civil

Court of original jurisdiction or any other Court empowered in that behalf by the Government within the local limits of whose jurisdiction the whole

or a part of the trust was situate. It is conceded that the principal civil Court of original jurisdiction in this case is the Court of the District Judge

Srinagar. This plea of the Defendants was upheld and the suit returned for presentation to the proper Court by the trial Court. The appellate Court

having upheld this order of the trial Court, the present revision is sought to set, aside the orders passed by the lower Courts.

It is not disputed that the suit has been brought without the consent in writing of the Dy. Commr. concerned. Mr. S. Kaul appearing for the

Petitioners has addressed very elaborate and long arguments in this case. I have considered the arguments of the learned Counsel for either side

and have given my serious consideration to the matter in dispute between the parties. The learned Counsel for the Respondents relied on an

authority of the Supreme Court, Ramnikal Pitambardas Mehta Vs. Indradaman Amratlal Sheth, wherein it is said that the High Court cannot

entertain and interfere in revision with the decision of the appellate Court even if it had gone wrong on facts and law. Therefore according to the

Respondents' learned Counsel, this revision should be rejected on this ground alone.

I need not discuss this authority and its application to the present case as the present revision petition is otherwise too liable to dismissal. The

two Courts below have said that there are four conditions which must be satisfied to attract the provisions of Section 92 of the Code of Civil

Procedure. There must be (1) a trust for public purposes of a charitable or religious nature; (2) a breach of such trust must be alleged; (3) the suit

must be on behalf of the public and not for individual rights, and (4) the reliefs claimed in the suit must be one or more of those mentioned in the

section. The Courts have hold that all these conditions are satisfied and the suit is not maintainable.

In this case we have first to determine whether there is a public or an express or a constructive trust created for public purpose which is of a

charitable or a religious nature. There is a long list of authorities which have laid down the criteria for determining whether u particular trust is a

private or a public trust. In this behalf the following authorities may be cited: Sahdeo Das Vs. Raja Ram and Others . AIR 1934 230 (Privy

Council) , AIR 1933 22 (Oudh) Bala Krishna v. Ganesh Prasad AIR 1952 Orissa 203, Deoki Nandan Vs. Murlidhar, , and Wazir Shall v. Sant

Shah AIR 1961 J. & K. 42.

Only extracts from a few of the above decisions may be cited here.

In AIR 1933 22 (Oudh) it has been laid down that the main characteristic of a public temple is that it is intended for the use of the public at

large, or at any rate an indeterminate, though restricted class of the Hindu community generally. On the other hand, private temples are intended for

the worship of the family or other god by members of the family of the donor exclusively. A private temple is like a private chapel in England in

which the public have no interest. Though the public can be allowed access even to a private temple in such a way as to exclude any idea of its

being a public institution such access is only by sufferance. But in the case of a public temple the public is entitled to the privilege of worship therein

as a matter of right.

In AIR 1934 230 (Privy Council) it has been held that whether a certain temple is a public or a private trust must be established on evidence.

Similar observations have been made in Sahdeo Das Vs. Raja Ram and Others

In Deoki Nandan Vs. Murlidhar, it has been laid down that the distinction between a private and a public trust is that wherein in the former the

beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons

who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable or ascertainment. A religious

endowment must, therefore, be held to be private or public according to as the beneficiaries thereunder are separate persons or the general public

or sections thereof.

The Orissa authority (supra) has also laid down the criteria for determining whether a trust is public or private.

In AIR 1961 J& K 42 it has been laid down that even if a particular sect of Hindus uses a particular temple it will be a public trust.

In the present case the very first paragraph of the plaint mentions that Mandir Khakchowk is a public temple and a religious place of worship

for all Hindus in Srinagar. It is admitted in the plaint that this temple is used as a place of worship by all Hindus of Srinagar and is a public temple.

In view of this admission in the plaint there was no need for authority, but Mr. S Kaul laid much emphasis on the written statement of the

Defendants wherein they have said that the Mandir was a private trust. It was therefore necessary to clucidate what would be the definition of a

public or a charitable or a religious trust. That definition fully applies to the averments in the very first paragraph of the plaint and therefore there

can be no hesitation in holding that this Mandir is a public trust for religious purposes.

I feel amused at the averments in the plaint and the reliefs claimed. The Petitioners-Plaintiffs do not claim any relief for themselves on the other

hand they claim that certain moneys as envisaged in paras (b) and (d) of the reliefs claimed are the property of the Mandir and a declaration be

made to that effect that Mandir Khakchowk as such is not a party to the suit. I fail to understand how without impleading Mandir Khakchowk as

one of the parties could such a relief be granted to the Plaintiffs and whether their main object seems to be to get Defendant I declared as a person

who has nothing to do with this Mandir nor with the money that it has got by way of compensation of the land which belongs to the Mandir. In

view of the peculiar draft of the plaint I think the suit of the Plaintiff was not maintainable on this ground also, though for the purposes of the

disposal of this application this paragraph may be considered as a simple obiter dictum.

As I said already, Mr. Kaul laid great emphasis on the allegation of the Defendants that the mandir was a private trust. It is very well settled

that in order to determine whether a particular Court has jurisdiction or not it is generally the averments in the plaint that have to be considered.

The substance of the plaint has to be understood in its proper perspective, the reliefs claimed have to be kept in mind, and then the question of

jurisdiction has to be determined. Apart from the law applicable to all plaints for the purpose of determining the jurisdiction of a particular Court, a

few authorities which are strictly on the point in issue before me, i.e., relating to the application of Section 92 of the CPC may be cited in this

behalf: Ganpat Pujari Vs. Kanaiyalal Marwari, , The Tirumalai Tirupati Devasthanams Committee Vs. Udiavar Krishnayya Shanbhaga and Others,

, Mahant Pragdasji Guru Bhagwandasji Vs. Patel Ishwarlalbhai Narsibhai and Others, , Mulchand Bassarmal v. Devigir Motigir AIR 1936 Sind

179, Abdul Razack Sahib and Others Vs. A. Abdul Hamid Said and Others, , and Mulchand Chandumal v. Harkishandas Parmanand AIR 1941

Sind 88.

In the Patna case (supra), Kulwant Sahay J. has stated that in order to determine whether Section 92 CPC applies to a certain case, it is the

plaint and not the written statement that should be looked into for determining jurisdiction.

In The Tirumalai Tirupati Devasthanams Committee Vs. Udiavar Krishnayya Shanbhaga and Others, a Full Bench of the Madras High Court

overruled a former Full Bench decision of the same Court reported as Janki Bai Ammal v. Vinayakar of Melmandai AIR 1935 Mad 825 (FB) and

held that in order to decide whether a suit falls u/s 92 of the CPC the Court must go beyond relief sought and have regard to the capacity in which

Plaintiff's arc suing and the purpose for which the suit is brought and it cannot be said that it depends not upon the character in which the Plaintiffs

sue but on the nature of the reliefs sought.

In the Supreme Court case (supra) it has been held.

In a suit framed u/s 92 the only reliefs which the Plaintiff can claim and the Court can grant are those enumerated specifically in the different clauses

of the section. A relief praying for a declaration that the properties in suit are trust properties does not come under any of these clauses. A suit u/s

92 is a suit of a special nature which presupposes the existence of a. public trust of a religious or charitable character When the Defendant denies

the existence of a trust, a declaration that the trust does exist might be made as ancillary to the main relief claimed under the section if the Plaintiff is

held entitled to it, but when the case of the Plaintiff fails for want of a cause of action, there is no warrant for giving him a declaratory relief under

the provisions of Section 92.

Similarly in AIR 1936 Sind 179 (supra) a Division Bench of that Court held that the nature of the suit and the jurisdiction of the Court were

determined by the allegations in the plaint and not by the contentions in the written statement.

Therefore in my opinion the allegations in the written statement that Mandir Khakchowk was a private trust is of no consequence in view of a

clear averment in the plaint that this trust was a public place of Worship for all Hindus of Srinagar.

The next point that arises for determination in this case is whether the reliefs claimed in the plaint are those as are envisaged by Section 92 of

the CPC Mr. Kaul has contended that his prayer is not for the removal of the so-called trustees, bin for a declaration that Defendant 1 is neither a

pujari nor a Mohatmim. He further states that he has prayed for a declaration that the sum of Rs. 33500/- lying in deposit with the Collector is the

properly of the deity at Mandir Khak Chowk. This relief is the converse of the proposition that this money does not belong to Defendant 1.

because this money has been held by the Collector and the District Judge in the land acquisition case to belong to Defendant l. The plaint is so

worded as to create some room for argument. But what should be the guiding principle in interpreting such a plaint and arrive at a conclusion as to

what is the true object and purport of the Plaintiff is to read the whole plaint, analyse the relief sought and then determine the question of

jurisdiction. It has been held in Sarat K. Mitra Vs. Hem Ch. Dey and Others, that the provisions of Section 92 cannot be avoided by adding some

inconsequential relief which may not be within the scope, of this section.

In Ramdas Bhagat Vs. Krishna Prasad Tewari and Others, it has been held that in considering the application of Section 92 it is not the

allegations in the plaint alone that should be looked into. But the Court must look to the substance of the claim and not merely to its wording. It

was further held in this authority that Section 92 applies to suits for removal of trustee de son tort, i.e., de facto trustee and not de jure trustee. In

this case it may be mentioned that the Plaintiff alleged that Defendant 1 is not a de jure trustee but is a trustee de son tort.

In Innasimuthu Pillai and Another Vs. Rev. A.J. Lutz and Others, it was held by Spencer J. that the requirements of Section 92 cannot be

evaded by asking for a bare declaration under the Specific Relief Act.

In Sanat Kumar Mitra Vs. Hem Chandra Dey and Others, it was held that to attract the provisions of Section 92 the suit must be founded on a

breach of the trust.

With these general observations let us come to the facts of the present case. In this case the reliefs claimed are a) that the Defendant is not a

Pujari or a Mohatamim of the Mandir; b) that he is not entitled to Rs. 33500/- lying in deposit with the Collector and f) for accounts Reliefs (a), (b)

and (c) are in fact a prayer for the removal of Defendant 1 from the management and control of Mandir Khakchowk and the money that has been

earned on its behalf in the acquisition proceedings of the land belonging to this Mandir. This relief is No. (a) as mentioned in Section 92 Sub-

section (1). The relief for accounts as contained in (f) of the plaint is relief (d) of the same section. The declaration that the moneys are the property

of Mandir Khak Chowk is covered by relief (e) of Section 92(l), and the other reliefs namely (d) and (e) also can be safely categorized under

Clause (h) of the section.

In Abdur Rahim v. Abu Mahomed Barkat Ali Shah AIR 1928 PC 16 it has been laid down that further or other reliefs in Clause (h) must on

general principles of construction be taken to be reliefs of the same nature as in Clauses (a) to (g). In my opinion the reliefs (d) and (e) are

analogous to the reliefs claimed in other portions of the relief paragraph.

In Narayan Bhikaji Khanolkar Vs. Vasudeo Vinayak Prabhu, it was laid down that where the plaint asked that accounts should be taken with

reference to trust property received by some of the Defendants and further in effect it also asked for directions as to what should be done with

trust fund where the prayer of the Plaintiffs was that the funds should go to the Plaintiffs and some other Defendants and it was further prayed that if

the funds could not be allowed to go to them at least a direction must be given that they should be allowed to retain the funds for the benefit of the

temple.

In AIR 1936 Sind 179 the sewak of a temple filed a suit on behalf of himself and other sewaks against the trustees of that temple. The relief

asked for was not only a prayer for a declaration that the property in suit was a public charitable property, but there was also a prayer that the

trustees be restrained from alienating the land or any portion therefor. On these facts it was held that the relief fell, within Clause (h) of Section 92

and that therefore sanction under that section was necessary.

It has further been held that a suit instituted for private purposes is an abuse of the process of the Court. Narayan Das and Others Vs. Khunni

Lal and Another, .

Similarly in Saw Durmay v. Baggal Singh AIR 1925 Rang 294 it was held that in respect of properties which form part of a public trust, a mere

worshipper cannot have the right of suit to obtain possession of the properties. He has no right to sue for any of the reliefs mentioned in Section 92

of the CPC except in the manner prescribed in that section.

In Raghubir Saran Agarwal Vs. Ram Prasad Misra, it has been held that in the case of a public endowment a member of the public or a mere

worshipper has no right to bring a suit for possession of the temple on behalf of the idol; but they can bring a suit for the reliefs which can be

granted u/s 92 CPC after obtaining the necessary permission under that section.

In this case, as I have already stated, the Plaintiffs are two private individuals. They do not claim any specific relief for themselves. Motivated

with very good intentions, their only purpose in bringing this suit is to preserve the property which they think belongs to Mandir Khakchowk. They

plead that Jia Lal Ganjoo bad no right, title or Interest in the land which was attached to this temple and which has been acquired by the

Government The sum and substance of the suit and its purpose as I understand is that this gentleman should have nothing to do with the money that

has been obtained as compensation for the land of this temple. Similarly the Rs. 10,000/- deposited with Defendant 2 should be utilized for the

purpose of the temple and not in any other manner. However good the intention or the purpose of the Petitioners may be, I am afraid they have not

chosen the right method of lodging the suit. If they or some-body else with a public spirit feels interested in bringing a suit of this nature they should

obtain in writing the consent of the Dy. Commr. concerned. But the suit as it is framed is hit by the provisions of Section 92 Code of Civil

Procedure. The suit as such was not cognizable by a Munsiff's Court. The suit has been rightly returned to be presented in the proper forum, or I

should say has been rightly thrown out. There is no force in this revision petition which is dismissed but without making any order as to costs.