Murti Vaishnu Mata alias Durga Mata vs Vaishnu Dutt

R.L. Anand, J.—Unsuccessful plaintiffs Murti Vaishno Mata alias Durga Mata installed in Mandir Devi Dwara, commonly know as Devi Drawa Dahramshala Zargaran, Amritsar, Katra Sher Singh, Mori Ganj, through Charanjit Lal Babbar, General Secretary of the Trust (plaintiff No. 1) and Trust Dahramshala Devidwara Bradari Hindu Zargaran through Charanjit Lal Babbar, General Secretary of the said Trust (plaintiff No. 2) have filed the present R.S.A. and it has been directed against the judgment and decree dated 2.9.1986 passed by the Court of Additional District Judge, Amritsar, who set aside the judgment and decree dated 30.4.1981 passed by the Court of Sub Judge 1st Class, Amritsar, who decreed the suit of the plaintiffs for possession as prayed for.

Brief facts of the case as alleged are that there exists one temple ''Vaishno Mata'' and it is 100 years old and is situated at Katra Sher Singh, Amritsar, along with building pertinent thereto as detailed in the site plan attached to the plaint. It had five big shops and one small shop adjoining the corner of the entrance. The property belongs to the deity and brotherhood of the Goldsmiths of Amritsar and was under the management of the Choudharies. In the year 1924 a meeting was held of the brotherhood of all the goldsmiths and it was decided therein that since there was mismanagement in the affairs of the temple (Devi Dwara) and some of the Choudharies of the brotherhood had died, and others were unable to manage the property due to old age and some of them had mis-appropriated some amounts of the Devi Dwara, therefore, it was decided that election of the said Devi Dwara resulting that 12 persons were appointed as Chaudharies, namely, Sarvashri Sant Ram, Devi Singh, Daulat Ram, Karam Chand, Jita Mal, Jai Gopal, Sohan Lal, Lal Chand, Nanak Chand, Kewal Chand, Gandu Mal and Gurdial Singh. One Ralia Ram son of Achru Ram was appointed as treasurer for the same and the 12 persons, who were elected as mentioned above, were appointed as trustees of the temple. All the persons executed an agreement dated 2.2.1924 delineating the details of the meeting and mode and method in which management was to be carried. All the 12 trustees took over the charge of the temple and appointed Kundan Lal son of Pt. Gurdial, father of the defendant as their employee for the performance of worship of the temple. Said Pt. Gurdial executed an agreement of service on 4.2.1924 in favour of Ram Chand son of Ganda Ram, the then incharge trustee and undertook the duties of keeping the temple clean and to bear good moral character. Kundan Lal was also made responsible to protect the belongings of the temple handed over to him. Said Kundan Lal again on 3.2.1925 executed another agreement of service in favour of the trustees who had been put in charge for service of the temple. Said agreement was executed by him in favour of Sohan Lal son of Daya Ram and Lal Chand son of Lahori Mai, who were trustees. Kundan Lal father of the defendant again executed agreement of service on 28.5.1942 in favour of aforesaid Sohan Lal and Lal Chand, the then trustees. It is also pleaded that previously in the brotherhood of goldsmiths, Hindu and Sikh goldsmiths were there, but then disruption took place and that Bhai Sunder Singh son of Lal Singh filed a criminal complaint u/s 295, IPC, on 4.1.1928 against four trustees, namely, Sant Ram, Sohan Lal, Nanak Chand, Lal Chand and one Kirpa Ram, who was Granthi, on the allegations that they had removed Guru Granth Sahib from the Dharamshala. Said complaint was dismissed on 3.3.1928 by the Magistrate 1st Class, Amritsar. Consequent upon the dismissal of their complaint the goldsmiths who were Sikhs took forcible possession of the Thara adjoining the temple on which at present stands a room and the varandah in which Guru Granth Sahib is recited and is on the western side of the building. Sant Ram, Nanak Chand, Jita Mal, Sohan Lal, Karam Chand and Lal Chand filed a suit for possession against the trespassers and the Sikh goldsmiths on 19.3.1928 and the suit was decreed on 29.5.1928, as a result of which the trustees again entered into the possession of the Thara and verandah. At the instigation of the Sikh Goldsmiths a notification u/s 7 of the Sikh Gurdwara Act was issued in which the property was shown as Sikh Gurdwara. That notification was contested by Sant Ram, Nanak Chand, who filed a petition that it was not a Sikh Gurdwara and the matter was again compromised between the Sikh Goldsmiths and the non-Sikh Goldsmiths and they agreed that the western portion of the temple would be declared as Sikh Gurdwara and the eastern portion along with Thara and three shops, courtyard etc. would be declared to be temple under the management of the petitioners, namely, Sant Ram and Nanak Chand, who moved the said petition. The trustees of the temple were given right to realise the rent of the two main shops and small shop and common passage for the gurdwara and the temple was also left therein. Besides the temple there is a big courtyard for gatherings for katha kirtan. It was averred that with the passage of time the trustees appointed on 2.2.24 died and a fresh meeting of the brotherhood was held and new trustees were declared elected on 27.3.1976, Plaintiff No. 2 then passed a resolution in the meeting held on 21.7.1976 under the Presidentship of Surinder Singh Chohan that the trust be got registered under the Societies Registration Act. Accordingly, an application was moved to the Registrar of the Societies and plaintiff No. 2 was duly registered on 27.8.1976. The Trust then held a meeting on 12.9.1976 and a resolution was passed that suit for possession be filed against the defendant through Shri Charanjit Lal Babbar, General Secretary of the, Trust.

It was a also pleaded that the father of the defendant worked as Pujari under the. trustees for a long time and was allowed to live in the room adjoining the temple and on his death the defendant was appointed as such. The defendant too had been carrying the work of Pujari honestly. Sometimes he also realised the rents from the tenants under the trustees against endorsement on the rent note executed by them in favour of the trustees. Kishan Chand trustees obtained an electric connection in the temple building in his own name by moving an application to the Chief Electrical Engineer, Municipal Committee, Amritsar, on 13.6.1959. It is alleged by the plaintiff that the defendant acted malafide, got filed an application from his own son to the Chief Electrical Engineer, Municipal Electricity Department, Amritsar in 1967 making the averments therein that since Kishan Chand had left the premises and he was living, so connection might be changed in his name. He got the connection transferred in his name on 3.4.1967 without intimation to the trustees. The defendant filed a false affidavit in spite of the fact that Kishan Chand was alive even upto 1967. Thereafter the defendant filed a suit for injunction against Chaman Lal, one of the trustees and All India Swarankar Jan Committee through its President, making averments therein that he was the owner of the property and the same was being used by him as a private Mandir and that he should not be dispossessed and his possession be not interfered except in due course of law. Upon this the plaintiff came to know that the intention of the defendant had become dishonest. In fact, the plaintiffs were in possession of the shops, courtyard parkarma and they were also getting proper worship done regularly therein through their Pujari and Katha Kirtan was also being done regularly. Now the defendant has also put up a room on the Thara adjoining the temple and had also set up a kitchen, bathroom in the verandah and had kept cattle in the shed. The defendant also got the Peepal tree cut. The property, which is in the possession of the'' defendant, is a part of the temple property and belongs to the deity. The plaintiffs are not interested to keep the defendant any longer in the premises and the defendant has no right, title or interest to retain the possession.

Notice of the suit was given to the defendant and he took certain preliminary objections that the suit was not properly valued for the purpose of court fee and jurisdiction; that the plaintiff had no right, title or interest in the property. He also challenged the locus slandi of the plaintiffs to file the present suit. The defendant denied that plaintiff No. 2 is a registered society and that the suit was not maintainable. He also disputed the right of Charanjit Lal to represent the trust, alleging that he was neither the Pujari nor Mahant of the institution and as such has no locus standi to file the suit and to represent the deity. It was also pleaded by the defendant that the suit of the plaintiffs is not within limitation. The defendant also alleged that his possession had turned into an adverse possession and in the alternative he pleaded that even if it is held that he was a Pujari, the office of the Pujari has been possessed by him adversely for more than 12 years and as of right to the knowledge of the entire public and the persons concerned with the property. He denied that the property belongs to the deity and the brotherhood of the Goldsmiths. He further maintained that the trustees never took charge of the property nor have anything to do with it. He challenged the execution, validity, consideration and the enforceability of the alleged agreement maintaining that the alleged agreement in not admissible in evidence for want of proper stamp and registration. The defendant even denied that his father Kundan Lal was working as Pujari under the trustees and that the plaintiffs have no right, title or interest in the property. According to the defendant, the temple affairs were owned and possessed by him and he allowed the worshippers under his own command. He further maintained that the plaintiffs are not in possession of the courtyard or the Parkarma as the same is with him. With these allegations he prayed that the suit be dismissed.

From the above pleadings of the parties, the learned trial court framed the following issues: -

Whether the suit is properly valued for the purposes of court fee and jurisdiction ? OPP.

Whether plaintiff No. 2 is duly registered under the Societies Registration Act ? OPP.

Whether the plaint has been signed, verified and the suit instituted by a duly authorised person ? OPP.

Whether the plaintiffs are the owners of the suit property ? OPP.

Whether the suit is within time ? OPP.

Whether defendant has become owner of the suit property by adverse possession ? OPD.

Whether suit is not maintainable in its present form ? OPD.

Relief.

The parties led voluminous evidence in support of their case and on the conclusion of the proceedings it was held by the trial court that plaintiff No. 2 was a duly registered society under the Societies Registration Act and Shri Charanjit Lal Babbar was competent to sign and verify the pleadings and that the suit had been properly instituted. It was also held that the plaintiffs are the owners of the suit property and the suit in within limitation. The plea of adverse possession raised by the defendant was rejected and it was also held that the suit of the plaintiffs was legally maintainable in the present form and finally vide judgment and decree dated 30.4.1981 the trial Court decreed the suit of the plaintiffs-appellants.

Aggrieved by the judgment and decree of the trial Court, Vaishnu Dutt defendant filed first appeal in the Court of Additional District Judge, Amritsar, who vide judgment and decree dated 2.9.1986 set aside the judgment and decree of the trial court and it will be useful for me to incorporate the findings here given by the first appellate Court, compelling it to dismiss the suit of the plaintiffs-appellants :-

"19. On the basis of the arguments of counsel and the evidence on record it is held as under:-

(a) that the original endowment was made by the bradari or brotherhood of Hindu Goldsmiths of Amritsar who were the founding shebaits. The trust or the registered society does not come up to the requirements necessary to acquire shebaitship;

(b) that in the absence of memorandum of association and rules and regulations of the society it cannot be known in what manner the society will conduct its affairs to look after the welfare and interest of the deity which are of paramount consideration;

(c) that the deity is the absolute owner of the temple and all properties appurtenant thereto. The appellant is in possession of a portion of the debutter property;

(d) the deity was properly represented by the trust acting as defacto trustee but the trust could not recover possession from the appellant of a part of debutter property as the appellant himself had been a de facto trustees from 1954-1976.

(e) all de facto trustees were necessary parties;

(i) the appellant was not a hereditary priest or holder of a hereditary office. The suit against the appellant was not covered by Article 107 of the Limitation Act;

(ii) the suit was not time barred as there is no limitation for recovery of debutter property and provisions of Section 10 of the Limitation Act applied."

Aggrieved by the judgment and decree of the first appellate Court, the plaintiffs have filed the present appeal, which is being disposed of with the assistance of Shri V.K. Jain, Senior Advocate, who represented the appellants, and Shri A.K. MittaL, Advocate, who appeared on behalf of the respondents.

The reasons just quoted above and given by the first appellate court would show that all the aspects of this case have been decided in favour of the plaintiffs but they have been non-suited on the ground that the Trust could not recover possession from the defendant of a part of debutter property as defendant-respondent himself had been a de facto trustee from 1954 to 1976. It was also held by the first appellate Court that all de facto trustees were the necessary parties. The parties addressed arguments before me on issues No. 2,3 and 7 only and I shall also confine my discussion on these issues because it has been admitted during the course of arguments that the property in question belongs to the deity. There are two sets of plaintiffs in this case - One is Murti Vaishno Mata alias Durga Mata installed in Mandir Devi Dwara Commonly known as Devi Dwara Dharamshala Zargaran, which is a juristic person in the eyes of law and is competent to sue and be sued by those persons who have no adverse interest against the deity. The law is even to the extent that a worshipper of the deity has the right to sue against all those persons who claim adverse to the interest of the deity. The only rider is that such a worshipper or such a person, who filed a suit on behalf of the deity should not claim adversely against the interests of the deity. A perusal of the present plaint would show the Shri Charanjit Lal Babbar, who was appointed as the General Secretary of the Trust Dharamshala Devi Dwara Bradri Hindu Zargaran, never claimed the suit property or any part of the property of the deity to himself. Rather the deity was installed by the Zargar Bradari of Amritsar 100 years back and in order to run the affairs of the Mandir, the brotherhood assembled in the year 1924 and appointed certain Chaudharies/respectables as the managers (loosely described as trustees), whose primary function was to manage the affairs of the Mandir. For that reason they even appointed Shri Kundan Lal, father of the defendant, as Pujari and I would discuss that evidence in the subsequent portion of this judgment. With the lapse of time some of the managers/trustees died. Some did not show interest. Some started even bungling with the property of the deity. Consequently, in the year 1976 again the Bradari of Zargars held a meeting and it was thought proper to create a society, which should be registered with the office of the Registrar of Firms and certain office-holders were appointed, including Shri Charanjit Lal Babbar, who was appointed as General Secretary of the Trust. The purpose of creating the Society/Trust was only to look after the affairs of the Mandir, so that it may go on in a smooth manner, lest anybody may claim adverse interest to it. The trust deed was executed. It was duly registered with the Registrar of Firms and by a separate resolution Shri Charanjit Lal Babbar was authorised to file the present suit against the defendant and in this manner plaintiff No. 1, the deity was represented by Shri Charanjit Lal Babbar, whose sole object was to protect the property of the Mandir. Plaintiff No. 2 is a registered body/society, which also came into existence in the year 1976 and it was duly registered with the Registrar of Firms. It became a legal entity and Shri Charanjit Lal Babbar was the General Secretary, who was authorised by a separate resolution to file the suit. The aims and objects of the Society were only to run the affairs of the Mandir and in this manner it was interested in the property of the deity so that it may be protected for all times to come. With this background it will be useful for me to refer to the documentary evidence, which corroborates the above facts. Exhibit P4 is the trust deed, which was executed by the Bradari of Zargar on 27.3.1976. A perusal of the same would show that it has given the history of this Mandir. The deity was installed in the Mandir by the Zargar Bradari about 100 years back. The Bradari assembled in 1924 and then the Trust/Society was created in order to manage the affairs of the Mandir. Also it is mentioned that amongst the various trustees/managers Sarvshri Sant Ram, Chaman Lal, Sohan Lal, some of the caretakers and the remaining caretakers with the passage of time expired. Even the surviving caretakers and their successors could not run the affairs of the Mandir, as a result of which it was again resolved by the Zargar Bradari that a new Trust/Society may be created and accordingly 21 persons were nominated who would look after the affairs of the Mandir including Shri Charanjit Lal Babbar son of Shri Ram Rakha Mal Babber, who was appointed as Treasurer. With the execution of this document, the Registrar of Firms and Societies, Punjab was moved for the registration of the Society, which was registered in the name of "Trust Dharmashala Devidwara Bradari Hindu Zargran, Amritsar" on 27.8.1976 vide Exhibit PW 21/8. Thereupon a resolution Exhibit PW 21/9 was passed on 12.9.1976 against the defendant and it was decided to file the present suit and Shri Charanjit Lal Babbar was authorised to sign and verify the pleadings on behalf of the plaintiff. The record of the trial-court further shows that there is one more resolution dated 21.7.1976 (Exhibit PW 14/1), wherein it was decided by the office-holders nominated vide trust deed Exhibit P4 in which it was unanimously resolved that the Trust Dharamshala Devidwara Bradari Hindu Zargan be got registered under the Societies Registration Act. The above chain of events would show that the "Trust" was loosely worded, but it was a society the sole object of which was to protect the interests of the deity created by the Bradari of Zargars, who installed the idol of deity in the Mandir and for all intents and purpose they, in fact, were benefactors. They belonged to the Bradari of Zargars and it is not the case of the defendant that the Bradari of Zargars did not install the deity in the premises of the Mandir. Once it is held that the deity was properly represented by Shri Charanjit Lal Babbar, who had no adverse interest to the deity and also once it is established that plaintiff No. 2 was a legally constituted body, there is no difficultly to hold that the suit has been properly filed and instituted and that both the plaintiffs had the locus standi to file the suit against the defendant, who had claimed adversely to the interest of the plaintiff deity.

Learned counsel for the defendant-respondent submitted that plaintiff No. 2 is not a properly and validly constituted body/trust because the provisions of Sections 1 and 2 of the Societies Registration Act have not been complied with. The argument is devoid of any merit in view of the citation reported as Shanti Sarup Vs. Radhaswami Satsang Sabha, Dayalbagh Agra and Others, , wherein it was held that when a certified copy of the registration of society under the Act has been produced, there is a presumption as to signatures of persons on memorandum of association and the burden of proof to the contrary is upon the person who alleges that there was no proper registration of the society. The Hon''ble Judges of the Allahabad High Court gave very sound reasons in this judgment by observing that a Registrar is not expected to register a society unless the provisions of Sections 1 and 2 of Societies Registrations Act have prima facie been compiled with. Before registering a society the Registrar has to satisfy himself that the memorandum, as required by law, has been filed. The Hon''ble Judges further stated that a presumption can be drawn u/s 114 of the Indian Evidence Act that necessary formalities were required to be observed before a Society could be registered by the Registrar had prima facie been observed and at last on the face of it the memorandum of association purported to have been signed by seven different persons. Not an iota of evidence has been led by the defendant to rebut the document Exhibit PW-21/8. In these circumstances it has to be held that a fresh meeting of the brotherhood in the year 1976 took place. New trustees/managers were appointed and a valid trust (society) was created by a registered document, which was duly registered with the Registrar of Firms and the society took a decision authorising Shri Charanjit Lal Babbar, who sued on behalf of the deity as well as on behalf of the society, had the locus standi to file the suit.

Now it is to be seen that whether the defendant-Shri Vaishnu Dutt, in fact, was a defacto trustee, as held by the first appellate Court, so as to defeat the claim of the Plaintiffs, In this regard it will be useful for me to say that one of the managers was Kishan Chand, who got the electric connection in his own name. I do not endorse the act on the part of Shri Kishan Chand because he himself had no jurisdiction to get the electric connection in his own name. He ought to have applied for the electric connection in the name of the deity, but the fact remains that Shri Kishan Chand never claimed the property of the deity to himself. But the conduct of the present defendant before the institution of the suit runs contrary to the principles of the trust when he got filed a false affidavit before the Chief Electrical Engineer, Amritsar, by stating that Shri Kishan Chand had left the premises and the electric connection may be transferred in the name of his son and finally the defendant became successful in getting the electric connection in his own name, ignoring all interests of the deity. Here I would like to make a brief mention of three vital documents, which show the status of the father of the defendant and the first document is Exhibit PW 13/1 - an agreement which was executed by Shri Kundan Lal on 4.2.1924 in which he had clearly admitted that the property of which he had been appointed as a Pujari, belonged to Devi Mata. Shri Kundan Lal also undertook that he would perform Pooja etc. and would keep the temple premises as clean. This agreement of service, in fact, was for one year which was again renewed vide Exhibit PW 21/7 on 3.2.1925. Yet another agreement, which has been placed on record is Exhibit P2 dated 28.5.1942. The last document is Exhibit P.W. 13/2 dated 5.5.1943 and in all these four documents there is a clear and categorical admission on the part of Shri Kundan Lal that the property belongs to the deity and his capacity would only be of a licensee/Pujari on a fixed salary and he also undertook that he would not give any chance of complaint nor he would perform any act which may be objectionable to the community. After the death of Shri Kundan Lal, Shri Vishnu Dutt, present defendant, was allowed to perform the same duties. With the passage of time the intention of Vishnu Dutt defendant became bad and he started exercising his ownership right against the interests of the deity and in these circumstances it cannot be said that the defendant was de facto trustees. So much so, Shri Vishnu Dutt filed a suit against the Bradari of Zargars and claimed his ownership rights with regard to the properties of the deity and this gave a signal to the plaintiffs, who filed the present suit.

In this context it will be relevant for me to refer to the written statement of the defendant. There he has specifically alleged in para No. 8 of the preliminary objections that he is the owner in possession of the property in dispute and that his possession has turned into adverse one. The defendant further pleaded that even if it is held that he is a Pujari, the office of the Pujari has been possessed by him adversely for more than 12 years and as of right to the knowledge of the entire public and the persons concerned with this property. On merits also he stated that the affidavit which he filed in the Municipal Committee for getting the electric connection in the name of his son was not false as he had the right, title and interest in the property in dispute. The defendant even went to the extent of pleading in the written statement that the plaintiffs have no right to interfere and inter meddle in the property or in the affairs of the temple, which is owned and possessed by the defendant, who allows the worshippers under his own command. Even the oral statement made by the defendant speaks volume of his adverse interest to the little deity, realising that earlier his father was a Pujari of the Mandir in the capacity of a licensee even a salaried man and thereafter, after his death, he worked in the same capacity. In the examination-in-Chief Vishnu Dutt defendant again categorically asserted his title by saying that he is the owner of the disputed property and the temple and this property was inherited by him from his ancestors. Here it may be mentioned that in the written statement there is no plea regarding the inheritance of the disputed property. Nor he is saying that he is a defacto trustee ever appointed by the community of Zarvars. In the cross-examination, however, he admits that Pt. Kundan Lal was working as Pujari in this temple and the name of the his grand-father or his father''s name or his name were never entered as owner of the disputed property in any Government record, Municipal record or private record of any institution. He also admits that house tax of this property was got exempted on account of its being temple property and not on account of its being Dharamarth. He also admits that for the first time the electric connection in the said premises in the name of his son Vidya Dhar was installed in the year 1967. The defendant also admitted that Bhajan Lal Pujari used to offer Aarti and Prayer in the temple as an employee of the trust and he closes the temple premises and takes away the keys in the night. He further admits that Bhajan Lal personally offers Bhog to the deity by placing it before the deity. Of course, the defendant stated that, be also offers the Bhog. He finally stated in the cross-examination that the only title claim to the suit property by him was on the basis of inheritance from his ancestors and no other basis. The defendant even went to the extent of saying that he is owner of the property on the basis of Paramparas as were his grand-father, his father, and then his sister. A person with such history cannot have a better claim than that of the plaintiffs, which are deity, who has sued through Shri Charanjit Lal Babber, and the Trust and the Society, which is being run by certain office-holders of the Zargar Baradari.

The trial court after discussing voluminous evidence led by the parties, rightly came to the conclusion that the property in question belongs to Zargar Bradari and the same had been dedicated to Mata Vaishno, whose idol is installed in the Mandir. Shri Charanjit Lal Babbar through whom the present suit has been filed on behalf of the deity is one of the devotees and as such it can be safely stated that there is nothing wrong with the filing of the suit. Before I advert to the case law and the submissions raised by the learned counsel for the respondent, it will be useful for me now to refer to the judgment of the first appellate Court, which has disagreed with the findings of the trial Court. The learned first appellate Court in Para No. 13 of the Judgment concluded that it should be presumed that from 1942 onwards till 1954, when Kundan Lal died, he was the de facto trustee of the deity and after 1954 till 1976 the defendant was the de facto trustee of the deity. The Society after its incorporation cannot be deemed to have the shebiatship of the deity because the shebiatship must vest in a human agency and also because the original shebiats having since long stopped exercising their rights of shebiat. I am not in a position to agree with the reasons given by the first appellate Court, which has tried to make out a new case absolutely for the defendant. I have already stated that by no stretch of imagination it can be stated that defendant became the de facto trustee. He could not enhance his position from Pujari to shebiat or the defacto trustee. On the contrary, plaintiff No. 2 is a registered Society representing the brotherhood of Zargars and Shri Charanjit Lal Babbar, General Secretary, being a devotee and worshipper could file the suit against the defendant for the protection of the property of the deity. The findings of the learned first appellate Court appear to be contradictory to the earlier finding when it states that with the incorporation of the Society, which has definitely revived the interests of the brotherhood in the deity, the Society can be deemed to be only a defacto trustee. If the Society is treated as a defacto trustee, then it can sue through its principal officer, who has been duly authorised to file the present suit. The learned first appellate Court has also stated that the suit of the plaintiffs was not maintainable in view of Section 92 of the C.P.C. In my opinion, these reasonings are again wrong. The entire stress of the first appellate Court was that since Shri Charanjit Lal Babbar failed to prove himself as shebiat, therefore, the suit filed by him on behalf of the deity and on behalf of the Trust was not legally maintainable The reasons given by the first appellate Court, in my considered opinion, cannot be endorsed.

Learned counsel appearing on behalf of the respondent submitted that the plaintiffs ought to have filed the suit either u/s 92 of the C.P.C, or by resorting to the provisions of Order 1 Rule 8, C.P.C. The best course for the plaintiff was to request the Court u/s 92, C.P.C, to frame a scheme with regard to the trust property and in the absence of such prayer the suit has been rightly dismissed by the first appellate Court. The argument is devoid of any merit because in order to attract the provisions of Section 92, C.P.C, it is necessary to be proved at the first instance that there was any express or constructive trust created for public purposes of a charitable or religious nature. It is not the case of the plaintiff that the Bradari of Zargars created some trust at the very beginning when the idol was installed. Their case, on the contrary, is that the Zargar Bradari of Amritsar installed the idol of Vaishno Mata (deity) and for the management of the Mandir in the year 1924 a Committee of Chaudharies (respectable persons) was constituted, which was assigned the duties to look after the affairs of the Mandir, which was 100 years old. Thus the committee, which was a private arrangement to look after the affairs of the Mandir, appointed Shri Kundan Lal, father of the defendant, as Pujari and in the capacity of a licensee. With the death of Kundan Lal, who died in the year 1954, the defendant Vaishnu Dutt took over the duties of a Pujari and he continued discharging his duties, but subsequently, he became hostile to the interests of the deity and the Bradari, giving right to the deity and the Bradari to file the suit. In the year 1976 the Hindu Bradari of Zargars thought it proper to constitute a Society. A trust deed was executed, which was registered and Shri Charanjit Lal Babbar became General Secretary of that Society and was authorised to file the suit on behalf of the Society. In the capacity of General Secretary he also filed the suit on behalf of the deity. In the present case there was no trust ever created at the beginning, nor it is the case of the plaintiffs that the defendant committed any breach of trust. Hence the provisions of Section 92, C.P.C, would not come into play.

Learned counsel appearing for the respondent, Shri A.K. Mittal, then submitted that Shri Charanjit Lal Babbar ought to have filed the suit in representative capacity under Order 1, Rule 8, C.P.C. The argument is again devoid of any merit. I have to see the frame of the suit. Plaintiff No. 1 is the deity itself. Being a juristic person, it has to sue through some human agency and every person who does not claim any interest adverse to the deity and who believes in Hinduism is entitled to file a suit for possession on behalf of the deity in order to protect the property of the deity. The Zargar Bradari since initially installed the deity, therefore, it had the interest to protect the property of the deity and was competent to file the suit. In one word it can also be said that the Zargar Bradari as a whole and the registered society in particular became benefactors, so as to give them the right to file the suit. Elaborating the point of locus standi and the maintainability of the suit, my attention has been invited to Ramchand (Dead) by Legal Representatives Vs. Thakur Janki Ballabhji Maharaj and Another, , wherein the Hon''ble Supreme Court was pleased to hold that a person who has made large donations for the maintenance of the temple has clearly a substantial interest to maintain a suit for possession of the temple and its properties against the pujari or the manager on behalf of the deity to protect the property from mismanagement and misappropriation. In the cited case the suit was filed by the deity Thakur Janki Ballabhji Maharaj acting through its Manager, and a similar objection was taken regarding the non-maintainability of the suit, but the Hon''ble Supreme Court was pleased to repel the defence on the ground that a person who has made large donations for the maintenance of the temple gets a substantial interest in the properties of the Mandir and can file a suit for possession against all those persons who tried to embezzle or misappropriate the property of the deity. In Sobhanadreswara Rice Mill Company and Others Vs. Brahmachari Bavaji Mutt, Vijayawada, , it was held that even a de facto manager is competent to institute a suit for the recovery of the property on behalf of the institution. In Bhagauti Prasad Khetan and etc. v. Laxminathji Maharaj and etc., AIR 1985 Allahabad 228, it was held that suit for declaration and permanent injunction about the alienation of the debiitter properties can be filed even by a worshipper as next friend of the deity. In Bishwanath and Another Vs. Shri Thakur Radhaballabhji and Others, , it was held that a suit filed by an idol for declaration of title and possession of property from a person who is in illegal possession thereof under a void alienation, being only in the nature of enforcement of a private right by the idol and not being for any one of the reliefs found in Section 92 of the Civil Procedure Code, falls outside its purview and is not barred. It has been held in this authority that to invoke the provisions of Section 92 aforesaid three conditions have to be specified, namely:

(i) The trust is created for public purposes of a charitable or religious nature;

(ii) There was a breach of trust or a direction of Court is necessary in the administration of such a trust; and

(iii) The relief claimed is one or other of the reliefs enumerated therein.

I have already held above the present suit is not hit u/s 92, C.P.C., or under Order 1, Rule 8, C.P.C. The relief claimed is very simple by the deity through Shri Charanjit Lal Babbar to the effect that the defendant had started misappropriating the property of the deity and as such he had no right to retain the possession of part of the property regarding which he even claimed adverse interest. The learned counsel Shri Mittal, however, has drawn my attention to Duli Chand v. Mahabir Parshad Trilok Chand AIR 1984 Delhi 145, and submitted that the present suit is not maintainable, as it has been filed by one of the co-trustees without joining the other trustees. This authority is not applicable on the face of it. I have already stated above the no public or charitable trust was created by the founders and the Zargar Bradari, who installed the idol of Vaishno Mata. My attention was also invited to Profulla Chorone Requitte and Ors. v. Satya Choron Requittee : AIR 1979 SC 1682. This authority is distinguishable because the defendant was never treated as Shebiat nor he ever became de facto trustee. The counsel Shri Mittal, also relied upon Sushama Roy Vs. Atul Krishna Roy and Another, . This authority is again not helpful to him because in the cited cases the suit was between the sons of deceased shebitat over claim to Shebiati.

Summing up the above discussion, this Court is of the considered opinion that the learned first appellate Court had made out a case for the defendant which does not emerge out from the pleadings and the evidence led by the parties. An effort has been made to make out a new case for the defendant. There was no material before the first appellate Court to hold that the defendant-respondent became a defacto trustees from 1954 onwards upto 1976 and he could successfully defeat the claim of the plaintiffs-appellants. It was also an erroneous approach on the part of the first appellate Court to say that all de facto trustees were necessary parties to the suit. The case in hand has not been correctly appreciated from a right angle by the first appellate Court. Rather I am of the opinion that the approach of the trial Court, when it decreed the suit of the plaintiffs-appellants, was correct.

In view of the above, I allow this appeal, set aside the judgment and decree of the first appellate Court, and decree the suit of the plaintiffs as ordered by the trial court vide judgment and decree dated 30.4.1981.

The costs are made easy.