Ramchandra Ji Maharaj Virajman Mandir And 5 Others vs Sushil Maheshwari And 2 Others

Abdul Shahid, J

Heard learned counsel for the plaintiffs/appellants and the learned counsel for the defendant/respondent.

The present appeal has been preferred against the judgment and order dated 13.1.2026, passed by the learned Additional District Judge/Fast Track Court No.1, Etawah, in Misc. Case (Under Section 92 of C.P.C.) No. 103 of 2021 (Ramchandra Ji Maharaj Virajman Mandir Ramtal and others Vs. Sushil Maheshwari since deceased and another).

The case of the appellants/plaintiffs is that plaintiff no.1 is a temple which is commonly known in the public at large as Shri Ram Chandra Ji Maharaj Mandir Ramtal, situated at village Aheripur, Pargana Bharthana, District Etawah (later referred as Temple). It is stated that it is very ancient temple. There is no information or knowledge of its establishment and by whom. The said temple is established for public uses for around hundred year ago. Normally, the Sarvarakar of the temple were Baba Bairagi. The succession has been transferred on the basis of Guru-chela principle. The plaintiff nos. 2 to 4 are Sadhu Sanyasi of Bairagi person, who does not having any domestic life. The plaintiff nos. 5 and 6 are also residents of village Ahirepur. (later referred to as said village).

It is stated that said building of the temple is constructed over a large tract of land, in front of which a very large pond also exists, which pond is the property of the temple, and both the temple and the pond are situated and existing over an area of about 5-6 (five-six) bighas. The temple and pond are situated in the said land and is recorded in the Revenue entry No. 396 , area 71 decimals, 199M, area 1 acres and 12 decimals and 507, area 1 acres and 24 decimals, Gata No. 550 area 62 decimal. All the lands of the aforesaid four gatas is in the name of said temple. The name of plaintiff no.1/temple is continued to be recorded in the Khasra and Khatauni records of the Revenue Department, out of the total land comprised in the said gata numbers, the temple building and pond are constructed over 5-6 bighas of land and the remaining land is lying vacant nearby it. Apart from the lands of these gata numbers, one plot situated in the abadi area of village Aheripur, upon which two shops are constructed, is also the property of the temple.

It is stated that Sarvakar of plaintiff no.1/said temple were consistently an unmarried Sadhu Sanyasi Baba Bairagis and they have always remained the Sarvarahkar of Temple/ Plaintiff No. 1, but for the last several years, some persons having an evil intentions over the temple property, hence, one person, namely, Ram Swaroop son of Bhagwandas, who was a resident of Kanpur Nagar and carried on his business there and had no permanent residence in village Aheripur and only used to visit occasionally, developed malafide intentions regarding the temple and its property, and about 40 years ago, after the death of the then Sarvarakar Baba Bairagi, the said Ram Swaroop son of Bhagwandas, in conspiracy with the employees of the Revenue Department, got his name recorded as Sarvarakar of Plaintiff No. 1/temple in the concerned Khasra, Khatauni etc. after the death of Baba Bairagi Sarvarakar, whereas Ram Swaroop son of Bhagwandas was a married householder person, resided in Kanpur, and according to the tradition of the temple, since Ram Swaroop son of Bhagwandas was not a Baba Bairagi of the Bairagi sect, therefore he could not have been the Sarvarakar of Plaintiff No. 1, and factually also, since the said Ram Swaroop was a resident of Kanpur Nagar, it was not possible for him to look after the temple, nor was any actual care ever taken by him, nor in practice was Ram Swaroop ever the Sarvarakar of Plaintiff No. 1/temple, nor was any duty of Sarvarahkari ever performed by Ram Swaroop, and only due to collusion with the employees of the Revenue Department, the name of Ram Swaroop was recorded as Sarvarahkar of Plaintiff No. 1/said temple in the revenue records, although the employees of the Revenue Department neither had nor have any legal authority to make such an entry of Sarvarakari, nor can the same be recognized in law. In so far as the question of appointment as Sarvarakar/Sevayat of the temple is concerned, such appointment can only be made by the Civil Court, and therefore the entry of the name of Ram Swaroop son of Bhagwandas as Sarvarakar in the Khasra and Khatauni was having null and void from abinitio.

The defendant/respondent no.1, Sushil Maheshwari, who was the original defendant was not resident of the said village. Even during the pendency of litigation, Sushil Maheshwari had died and he has been substituted by his son 1/1 and 1/2, Amit and Anup Kumar, respectively, who is respondent nos. 1/1 and 1/2 in the present appeal. The original defendant (Sushil Maheshwari) was residing for the last 30-40 years in Chennai/Tamil Nadu alongwith his entire family. He was doing his business there. He used to visit in said village either once or twice in a year and and again returned to Chennai. After death of alleged Sarvarakar, Ram Swaroop son of Bhagwandas, the defendant/respondent had concocted a forged Will dated 21.12.1976 and got his name recorded in Khasra Khatauni and the name of original defendant/ Susheel Maheshwari had been substituted as Sarvarakar of plaintiff no.1/temple. The application filed by him under Section 34 of the Revenue Act before the Naib Tehsildar, Bharthana, District Etawah was accepted on 26.3.2002 and the name of Ram Swarup has been substituted with the name of Sushil Chandra, the original defendant in the revenue record. An appeal has been filed before the SDM, Bharthana which was allowed on 27.4.2004, whereas said order was set aside by the Additional Commissioner, Kanpur Zone vide order dated 28.2.2007. Hence, the initial order passed by the Naib Tehsildar, Bharthana dated 26.3.2002 is consistently in existence.

Learned counsel for the appellants/plaintiffs has submitted that said entries were contrary to the provision of Section 34 of the Land Revenue Act. The original defendant was not having any right towards said temple and he has always having malafide intention to destroy and disturb the moveable and immoveable properties of plaintiff no.1/temple. He has manipulated the properties of plaintiff no.1/said temple. He had not discharged his duty.

It is contended by the learned counsel for the plaintiff no.1/temple that the original defendant came to the said village and he is having intention to sold upon land of the said temple as well as shops, hence plaintiffs has filed said suit under Section 92 CPC alongwith an application for leave to file the said suit. The plaintiffs/appellants seeks the relief that management committee shall be framed for the maintenance of plaintiff no.1/temple.

The plaintiffs/appellants has preferred the present appeal on the following amongst other grounds.

Learned counsel for the plaintiffs/appellants submitted that after registration of the aforesaid suit, the learned trial court issued notices to the respondents for filing a reply/objection to the aforesaid application of the plaintiffs/appellants under section 92 of CPC. Thereafter the respondents initially filed their objection to the aforesaid application and the said objection was numbered as paper no. 26C and 27C. Thereafter it appears from perusal of records that the respondents again filed another objection to the aforesaid application under section 92 of C.P.C. filed by the plaintiffs/appellants and the aforesaid objection was numbered as paper no. 39C.

It is further reflected from perusal of records that the respondents again filed another additional objection before the learned trial court i.e. to the aforesaid application under section 92 of C.P.C. filed by the plaintiffs/appellants and the aforesaid objection was numbered as paper no. 42C.

Learned counsel for the plaintiffs/appellants has submitted that the learned trial court without considering the specific case of the plaintiffs/appellants and by recording wrong and illegal findings has illegally and arbitrarily and in a clandestine manner passed the impugned order dated 13.01.2026 whereby the application so filed by them under section 92 of C.P.C. for grant of leave to institute the said suit has been rejected. Being aggrieved against the aforesaid order dated 13.01.2026, the present appeal is being preferred by the plaintiffs/appellants.

Learned counsel for the plaintiffs/appellants has submitted that the learned trial court while passing the impugned judgement, has miserably failed to appreciate the fact that the present case is a case of implied trust and has thus recorded a perverse finding that the plaintiffs/appellants have failed to establish that there was either an express or implied trust for management of the daily affairs of the temple. He further submitted that learned trial court has recorded a perverse finding with respect to the fact that from the facts and circumstances of the case, it was not established that there existed any express or implied trust for management of the temple and its properties and it has been further observed illegally that it was not reflected from the records that the Sarvrahkar was not looking after the affairs of the temple personally. However, in that regard it is submitted that the opposite parties/defendants have themselves admitted in their objection 26C and 27C that earlier Ramswaroop had kept a Baba for taking care of the day to day affairs of the temple and thereafter several persons have been assigned the said duty from time to time.

Learned counsel for the plaintiffs/appellants has submitted that the learned trial court, while passing the impugned judgement, has miserably failed to appreciate the fact that the defendants are residents of Chennai and very seldom they come to visit the village to take care of the daily affairs of the temple. It is further submitted that learned trial court, while passing the impugned judgement, has miserably failed to appreciate the fact that the said temple is a public temple and large number of public comes every day for worshiping there and in absence of a proper committee of management for managing the affairs of the temple, the defendants have captured the valuable assets of the said temple for their personal use. Learned trial court while passing the impugned judgement, has miserably failed to appreciate the fact that the defendants have themselves admitted in their objection/reply that Late Sushil Maheshwari became Bhumidar with Transferable rights of the properties that were belonging to the temple and his name was allegedly recorded in the revenue records in the said capacity. Thus, it is most respectfully submitted here that from the above mentioned facts it is absolutely established that the defendants are claiming themselves to be the owners of the properties that are belonging to the temple which itself shows their malafide intention of misappropriating such property.

Learned counsel for the plaintiffs/appellants has submitted that the learned court below, while passing the impugned judgement, has miserably failed to appreciate the fact that the defendants have no interest in managing the daily affairs of the temple and they only want to sell of the valuable properties that belong to the plaintiff no. 1 temple. It is further submitted that the learned trial court, while passing the impugned judgement, has miserably failed to apply the actual import of Section 92 C.P.C. which clearly lays down that the aim of the said section is to protect the right of the public in such trusts and to stop any such misuse of the property of the said trust whether express or implied. It is stated that the defendants are illegally trying to alienate the movable and immovable properties of the temple and and are also openly saying in the village that they are the owners of the said temple and its properties and as such they can dispose the said the said properties as per their will and as such the lower court ought to have granted permission to the plaintiffs/appellants to file a suit for preservation of such properties of the temple by creating a committee of management.

Learned counsel for the plaintiffs/appellants has submitted that the said temple is a public temple and thousands of devotees come to visit the temple for worshiping the deity and if the properties of the temple are not preserved by order of Hon'ble Courts then the public at large shall suffer irreparable loss and injury. It is submitted that the plaintiffs have clearly established from their pleadings before the trial court that there existed a trust for public purpose of a religious nature for managing the affairs of the temple but the learned trial court has illegally recorded a perverse finding in that regard in the impugned judgement. The learned trial court, while passing the impugned judgement, has miserably failed to consider that a suit under Section 92 C.P.C. is a suit of special nature which pre- supposes the existence of a public trust of a religious or a charitable character and such a suit can proceed on the allegation that there was a breach of such trust or that the direction of the court is necessary for the administration of the trust and the pleadings and evidence adduced by the plaintiffs'/appellants.

Learned counsel for the appellants has relied on the law laid by this Court in Ambrish Kumar Singh Vs. Raja Abhushan Bran Bramhshah and others; AIR 1989 Alld. 194 and relied on paragraph nos. 10 and 15 which read as under:-

"10 Section 92, Civil Procedure Code was amended by the Civil Procedure Code (Amendment) Act, 1976. Before this amendment suit could be filed either by the Advocate-General or two or more persons having interest in the trust and having obtained consent in writing of the Advocate-General. After the amendment the words "the consent in writing of that Advocate-General" were substituted by the words "leave of the court."

While granting leave the court does not decide the rights of the parties. No right is adjudicated at this stage. The, Court has merely to see whether there is a prima facie case for granting leave to file a suit. This order does not in any way affect the final decision which will be given on merit after the parties have led evidence in the suit.

Sri K.N. Tripathi referred to a decision of this Court reported in 1987 All LJ 369, Mahanth Gurmukh Das v. Bhupal Singh wherein it has been held:-

"When a person claims to have an interest in the trust and the claim is disputed by the opposite party, the Court should apply its mind to the question on the basis of the material on record and come to a conclusion, prima facie though it may be, on the question whether the person seeking its leave can be treated to be a person having an interest in the trust."

Learned counsel for the plaintiffs/appellants has further relied on the judgment rendered in Operation Asha Vs. Shelly Batra and others; (2026) 1 SCC 569 and he relied on paragraph nos. 125 and 129 which are as follows:-

"125. Most common law jurisdictions are accepting towards the doctrine of constructive trust as adopted in England i.e. the institutional model rather than a purely remedial one. Therefore, jurisprudentially there would remain no bar for India to also adopt such an approach. We say so also because, the Trusts Act, 1882 (although dealing with private trusts) recognises the concept of an English "constructive trust". Under Chapter IX titled "Obligation in the nature of trusts" delineates several provisions wherein a resulting or a constructive trust, as accepted in common law may be created. Additionally, the Statement of Objects and Reasons of the Act reads as follows:

"With the few exceptions mentioned in this Statement, the rules contained in the Bill are substantially those now administered by English Courts of Equity and (under the name of "justice, equity and good conscience") by the Courts of British India.

The Bill distributes the subject under the following heads: I, Preliminary: II, the creation of trusts: III, the duties and liabilities of trustees: IV, their rights and powers: V, their disabilities: VI, the rights and liabilities of the beneficiary: VII, vacating the office of trustee: VIII, the extinction of trusts; and IX, certain obligations of the nature of trusts.

Where no trust is declared, but for the purposes of justice the law deems one to have been created, the trust is by English lawyers termed "constructive". Benami transactions, where property is transferred to A for a consideration paid by B, and B makes the payment for his own benefit, have for centuries been familiar to the people of India: gains made by one person at the cost of another are an everyday source of litigation; and in no country, owing to the extreme sub-division of immovable property and the partition of Inheritances, are constructive trusts more common. Chapter IX avoids the fiction implied in the term "constructive trusts" by treating such confidences as obligations in the nature of trusts properly so called. It specifies the fourteen principal cases in which such an obligation arises, as follows:

Where it does not appear that the transferor of property intended to dispose of the beneficial Interest (Section 80):

Where property is transferred to one person for a consideration paid by another (Section 81):

Where the trust is incapable of execution or is executed without exhausting the property (Section 82):

Where a transfer of property is made for an illegal purpose (Section 83):

Where a bequest is made for an illegal purpose, or where the revocation of a bequest is forcibly prevented (Section 84):

Where a transfer is made in pursuance of a rescindable contract (Section 85):

Where a transfer is made in fraud of the transferor's creditors (Section 86):

Where a debtor becomes his creditor's legal representative (Section 87):

Where a pecuniary advantage is gained by a person in a fiduciary character (Section 88):

Where an advantage is gained by the exercise of undue influence (Section 89):

Where an advantage is gained by a tenant for life or other qualified owner in derogation of the rights of other persons interested in the property (Section 90):

Where property is acquired with notice of an existing contract affecting it (Section 91):

Where a person contracts to buy property to be held on trust (Section 92):

Where one of several compounding creditors, by a secret arrangement with the debtor, gains an advantage over his co-creditors (Section 93):

The Bill also contains a general clause (Section 94) providing for cases not so specified. It is believed that this clause will cover that form of constructive trust which the Punjab Courts have held to arise when a co-sharer in a village community absents himself without expressly abandoning his rights".

However, it must be noted that an institutional constructive trust would arise the very moment any fiduciary removes or diverts the property from its intended beneficiaries for his exclusive benefit or for the benefit of those who are not the intended beneficiaries. This need not necessarily be due to an intention to defraud but may also arise due to a mistake. In other words, the moment the fiduciary receives money which he cannot conscientiously retain for himself, a constructive trust would be raised in favour of the beneficiaries on whose account the money was originally received. To put it simply, the factum that the fiduciary "withheld" the property from its rightful beneficiaries must be established. This would constitute a breach of his/her fiduciary duty and this benefit which has accrued to him would be held in constructive trust. The breach of his fiduciary duty i.e. his duty towards the society and its intended beneficiaries, must exist."

Learned counsel for the appellants/plaintiffs has placed reliance on Gyan Prakash Chaurasia and others Vs. Bans Narain Rai and another; AIR 1991 Allahabad 266 and he relied on paragraph no.3 which reads as under:-

"3. Having heard the learned counsel for the applicant I am of the view that the revision is devoid of merits. The suit or application under Section 92 of the Code has got a unique characteristic. It pre-supposes the existence of a public trust of a religious or charitable character and the suit can proceed only on the allegation that there is a breach of the trust and a consequential direction from the court has become imminent. The plaintiff has to pray one or more reliefs specified under the section. The suit is filed not in the individual capacity as plaintiff or plaintiffs, but as representatives of the public in general for vindication of public rights. In deciding whether plaintiffs have correctly filed the suit as representatives of the public or as private individuals, apart from looking into the reliefs claimed, the court must consider the capacity in which the plaintiffs are suing and the purpose for which the sujr is brought".

On the other hand, learned counsel for the respondent/defendant has submitted that the application filed by the plaintiffs seeking permission to institute the suit under Section 92 of the Code of Civil Procedure is wholly false, incorrect and on concocted facts, and is not maintainable in law. There is no need for framing of scheme of administration or management committee about plaintiff no.1/said temple. The details of the properties which has been mentioned by the plaintiffs at the end of the plaint are totally false.

It is submitted that the land mentioned at Gata Plot No. 396 measuring 0.71 acre mentioned at Serial No. 2 and Plot No. 557 measuring 0.62 acre and Gata No. 394 area 0.275 hectare is only in the name of plaintiff no.1/temple which is entered into the name of Sarvarakar of the temple as Sushil Chandra son of Vishambhar Dayal, whereas the land mentioned at serial no. 3, Gata No. 199 area 1.12 acre and Gata No. 507 measuring 1.24 acre are recorded in the name of Shri Ram Chandra Ji Maharaj Vanshi Wale Mandir, Aheripur through Sarvarakar Ashok Kumar son of Ramswaroop, and Plot No. 550 M. is recorded in the name of Shri Ram Sanskrit Pathshala Farm, Aheripur. The said properties have no concern or connection with the temple in question, nor have they ever had any such connection, and the said plot numbers are not under dispute.

He has further submitted that the respondent/defendant has objected that plaintiff no.1/said temple was having its previous Sarvarakar of Shri Maharajadhiraj Shri Ramchandra Ji Maharaj Virajman Temple, Aheripur, Tehsil Bharthana, District Etawah (U.P.), namely Ramswaroop Maheshwari son of Bhagwan Das Maheshwari, resident of 111/330 Ashok Nagar, Kanpur, who, used to visit consistently to Aheripur and perform Pooja Pathshala and manage the all arrangements of the said temple. The temple and pond were constructed and built by the ancestors and elders of the family, and the land is attached to the temple was in the ownership and in Sarvakarship of ancestors of the defendant. The entire property belongs to the Maheshwari family, whereas the temple and pond are always open for publicly worship and use by every person. Here the contention of plaintiff/temple is having prima facie force that said temple is of public purposes because the first name came into Sarvakara of said temple is of Ramswaroop Maheshwari, and there is no name of any Sarvakar in the said temple whereas said temple was in existence since a long time.It is stated by the defendant/respondent that said temple and pond was constructed by their ancestors and elder persons and they were also in possession of the land adjacent to the said temple and the entire properties was of Maheshwari family. Whereas, none of the documentary evidence had been provided nor any document of Sarvakar or of maintenance of said temple by the predecessor of defendant or of any predecessor of first Sarvakar, Ram Swarup Maheshwari, whose name came into existence. Whereas the temple is of public nature it is admitted case of both plaintiffs as well as defendant.

The respondent/defendant had not objected that the aforesaid Ram Swarup, Sarvakar of the temple was not having any children. He has attained his old age. He was unable to properly manage the affairs of the temple due to illness and weakness, hence in such circumstances, he considered it appropriate during his lifetime to execute a Will in respect of the temple and its attached properties so that the temple, its lands and properties might remain protected and the worship and rituals of the temple might continue smoothly. Accordingly, he executed a Will dated 21-12-1976 in favour of his grandson Sushil Chandra Maheshwari son of Vishambhar Dayal Maheshwari, resident of village Aheripur, as Sarvarakar of the said temple alongwith all the properties connected with the said temple including agricultural land. The said will was prepared on 21.12.1976. It is also mentioned in the said Will, that during the lifetime of the testator, he himself would remain the Sarvarakar, owner, person in possession and overall manager of the temple and its attached properties. After his death, the said Sushil Chandra Maheshwari would become the Sarvarakar of Shri Maharajadhiraj Shri Ramchandra Ji Maharaj Virajman Temple, Aheripur, Pargana Bharthana, District Etawah, and would enjoy all rights relating to the said temple. He would look after the temple, maintain its administration and management, arrange for worship, offerings to the deity and cleanliness. In respect of the agricultural lands attached to the temple bearing Plot Nos. 557 measuring 0.62 acre and 396 measuring 0.71 acre, the said Sushil Chandra Maheshwari was given full authority and was entitled to have his name entered in the government records as Sarvarakar and to utilize the said properties for the benefit of the temple. Thereafter, the said Ramswaroop has died and upon his death on the basis of said will, the entire management and right of Sarvakar of said temple alongwith entire properties and management of all affairs of the temple was devolved in favour of Sushil Chandra Maheshwari/respondent/defendant, in the capacity of Sarvarakar.

On the basis of the aforesaid Will, Sushil Chandra filed an application for transfer of his name in the agricultural, land attached with said temple. He has moved an application for mutation before the Tehsildar being Mutation Case No. 203 of 2002 before the Court of Tehsildar, Bharthana for mutation of his name in respect of the agricultural land attached to the temple, and by order dated 06-03-2002, the name of Sushil Chandra Maheshwari has already been recorded as transferable Bhumidhar in respect of Plot Nos. 197 and 199 in the capacity of Sarvarakar. Whereas, Smt. Kasturi Devi wife of Kanhaiyalal, resident of village Aheripur, Pargana Bharthana, District Etawah, who is having one house, saw mill, flour mill and factory, executed a Will dated 17-07-1972, duly notarized, in favour of her niece Smt. Shanti Devi widow of Vishambhar Dayal, resident of village Aheripur, and given to her all rights. After death of Kasturi Devi, Smt. Shanti Devi through a written Will dated 02-12-2000, authorized her adopted son Arvind Kumar son of Late Vishambhar Dayal that, if the aforesaid property is sold, the amount received therefrom shall be utilized for the renovation and restoration of Ram Janki Temple, Ramtal. Upon the said plot, shops were constructed in the year 2012 under the supervision of Sushil Chandra Maheshwari , and the said property is under the exclusive possession of the beneficiary under the Will. Earlier the aforesaid Ramswaroop had appointed a Baba for the care, maintenance, worship and rituals of the temple, and after the death of the said Baba, Nepali Baba was appointed as the priest. Nepali Baba continuously looked after and performed worship and rituals in the said temple for about 39 years. Thereafter, Irendra Das performed worship and rituals for about 15 years, and thereafter Jeetu Gaur continued the same for about 2 years. In the year 2020, upon the desire/request of Shyamsundar Das for management and worship of the temple, the opposite party/defendant handed over the keys of the temple to the said Shyamsundar Das.

The respondent/defendant has further submitted that the family members of respondent/defendant and relatives are fully devoted and faithful belief in the said temple and deity and they are not any malafide intention. They had no intention to sell the property of the said temple. They are even not in the need of it. The respondent/defendant has admitted this fact that family of defendant is settled in Chennai and for business purpose, he used to visit Chennai and the original defendant are seriously ill and also getting his treatment at Chennai. When original defendant had visited to the said village, then it came to his knowledge that the said Shyamsundar has a household life and children, and in the name of saints and ascetics, he gathers anti-social elements and consumes intoxicating substances, thereby turning the temple into a centre of criminal activities and creating danger to the security of the temple. When the defendant/respondent demanded return of the keys of the temple from the said Baba Shyamsundar, he refused to hand over the same. The original defendant has filed his objection that the aforesaid Baba had sold the green standing trees situated in the compound of the said temple. He has also filed an application before the concerned police station Bakewear, but that was disposed of with saying that civil dispute is pending before the civil court. that the matter was pending before the Civil Court and returned the application.The original defendant/respondent had died and he has been substituted by his son 1/1 and 1/2 and they raises the same objection which has been raised by the original defendant, Sushil Maheshwari. He has also objected that the original defendant Sushil Maheshwari has performed all duties which was provided to him in the Will and thereafter on the basis of Will, the respondent nos. 1/1 and 1/2, Amit and Anup Kumar, are having entire control and managing the affairs of the said temple. They have also raised objection that the plaintiffs are persons of highly dubious character and are acting in collusion with one another. They maintain association with criminal-minded persons. The intention of the plaintiffs is dishonest, and they seek to illegally usurp and ruin the temple and its properties. When the defendant/respondent did not allow them to succeed in their designs, they instituted the present false suit on the basis of false and concocted facts. The defendant/respondent has stated that in view of the aforesaid facts and circumstances, the application of the plaintiffs/appellant seeking permission to institute the suit deserves to be dismissed with cost.

Learned counsel for the defendant/respondent has submitted their objection on the basis of law laid down in the Janardan Dagdu Khomane and another Vs. Eknath Bhikhu Yadav and others; 2019 (0) Supreme (SC) 1040 and he relied on paragraph nos. 33,34 and 35 which are as follows:-

"33. A constructive trust arises by operation of law, without regard to the intention of the parties to create a trust. It does not require a deed signifying the institution of trust. Under a constructive trust, the trust arises by operation of law as from the date of the circumstances which give rise to it. The function of the court is only to declare that such a trust has arisen in the past.

Constructive trust can arise over a wide range of situations. To quote Cardozo, J., " a constructive trust is a formula through which the conscience of equity finds expression."

Story on Equity Jurisprudence has explained 'Constructive Trust" as:

"One of the most common cases in which a Court of equity acts upon the ground of implied trusts in invitum, is where a party has received money which he cannot conscientiously withhold from another party. It has been well remarked, that the receiving of money which consistently with conscience cannot be retained is, in equity, sufficient to raise a trust in favour of the party for whom or on whose account it was received. This is the governing principle in all such cases. And therefore, whenever any controversy arises, the true question is, not whether money has been received by a party of which he could not have compelled the payment, but whether he can now, with a safe conscience, ex aequo et bono, retain it. Illustrations of this doctrine are familiar in cases of money paid by accident, or mistake, or fraud. And the difference between the payment of money under a mistake of fact, and a payment under a mistake of law, in its operation upon the conscience of the party, presents the equitable qualifications of the doctrine in a striking manner. It is true that Courts of Law now entertain jurisdiction in many cases of this sort where formerly the remedy was solely in Equity; as for example, in an action of assumption for money had and received, where the money cannot conscientiously be withheld by the party; following out the rule of the Civil Law; Quod condition in debiti non datur uitra, quam locupletior factus est, qui accepit. But this does not oust the general jurisdiction of Courts of Equity over the subject-matter, which had for many ages before been in full exercise, although it renders a resort to them for relief less common, as well as less necessary, than it formerly was. Still, however, there are many cases of this sort where it is indispensable to resort to Courts of Equity for adequate relief and especially where the transactions are complicated, and a discovery from the defendant is requisite."

Learned counsel for the defendant/respondent has also placed reliance on the law laid down by the Supreme court in Bishwanath and another Vs. Sri Thakur Radha Ballabhli and others; 1967(0) Supreme (SC) 38 and he relied on paragraph no.7 which reads as under:-

"7. It is settled law that to invoke S.92 of the Code of Civil Procedure, 3 conditions have to be satisfied, 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. If any of the 3 conditions is not satisfied, the suit falls outside the scope of the said section. A suit by an idol for a declaration of its title to property and for possession of the same from the defendant, who is in possession thereof under a void alienation, is not one of the reliefs found in S. 92 of the Code of Civil Procedure. That a suit for declaration that a property belongs to a trust is held to fall outside the scope of S. 92 of the Code of Civil Procedure by the Privy Council in Abdur Rahim v. Abu Mahomed Barkat Ali, 55 Ind App 96 and by this Court in Pragdasli Guru Bhagwandasji v. Ishwarlalbhai Narsibhai, 1932 SCR 513:, on the ground that a relief for declaration is not one of the reliefs enumerated in S. 92 of the Code of Civil Procedure. So too, for the same reason a suit for a declaration that certain properties belong to a trust and for possession thereof from the alienee has also been held to be not covered by the provisions of S. 92 of the Code of Civil Procedure: See Mukhda Mannudas Bairagi v. Chagan Kisan Bhawasar, ILR(1957) Bom 809. Other decisions have reached the same result on a different ground, namely, that such a suit is one for the enforcement of a private right. It was held that a suit by an idol as a juristic person against persons who interfered unlawfully with the property of the idol was a suit for enforcement of its private right and was, therefore, not a suit to which S. 92 of the Code of Civil Procedure applied: See (Darshan Lal v. Shibji Mahraj Birajman, ILR 45 All 215 and Madhavrao Anandrao v. Shri Omkareshvar Ghat, 31 Bom LR

The present suit is filed by the idol for possession of its property from the person who is in illegal possession thereof and, therefore, it is a suit by the idol to enforce its private right. The suit also is for a declaration of the plaintiff s title and for possession thereof and is, therefore, not a suit for one of the reliefs mentioned in S. 92 of the Code of Civil Procedure. In either view, this is a suit outside the purview of S. 92 of the said Code and, therefore, the said section is not a bar to its maintainability."

Section 92 CPC provides public charities which reads as under:-

"92.Public charities.(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the [leave of the Court,] may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate to obtain a decree-

(a) removing any trustee;

(b) appointing a new trustee;

(c) vesting any property in a trustee;

(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;]

(d) directing accounts and inquiries;

(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;

(f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged;

(g) settling a scheme; or

(h) granting such further or other relief as the nature of the case may require.

(2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863), [or by any corresponding law in force in [the territories which, immediately before the 1st November, 1956, were comprised in Part B States]], no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section.

[(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cypres in one or more of the following circumstances, namely:-

(a) where the original purposes of the trust, in whole or in part,-

(i) have been, as far as may be, fulfilled; or

(ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or

(b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or

(c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or

(d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or

(e) where the original purposes, in whole or in part, have, since they were laid down,-

(i) been adequately provided for by other means, or

(ii) ceased, as being useless or harmful to the community, or

(iii) ceased to be, in law, charitable, or

(iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust."

In the aforesaid definition, Section 92 CPC, the words express or constructive trust created for public purposes are used by the wisdom of legislature. As per Section 92(d) directing accounts and inquiries; (g) settling a scheme; and clause (h) granting such further or other relief as the nature of the case may require.

In the present case, leave to application for filing suit under Section 92 CPC has been filed alongwith copy of the plaint. It is the contention of the learned counsel for the appellants/plaintiffs that said temple is a public temple and large number of public comes every day for worship there and there is need of proper committee of management for managing the affairs of the temple. Whereas, it is held by this Court in Ambrish Kumar Singh(supra) that while granting leave the court does not decide the rights of the parties. No right is adjudicated at this stage. The, court has merely to see whether there is a prima facie case for granting leave to file a suit. This order does not in any way affect the final decision which will be given on merit after the parties have led evidence in the suit.

The doctrine of constructive trust has been discussed by the Supreme Court of India in Operation Asha (supra). It is also submission of the respondent/defendant that the temple and pond were constructed and built by the ancestors and elders of the family and the land is attached to the temple which was in the ownership and Sarvarakarship of the ancestors of defendant/respondent. The entire properties belong to Maheshwari family, whereas the temple and pond are always open for public worship and used by every person. Hence, contention and submission of the learned counsel for the appellants/plaintiffs/temple is having, prima facie, legal force that the said temple is of public purposes.

The defendant/respondent has mentioned that the first name of Sarvarakar of the said temple is of Sri late Ram Swarup Maheshwari and there is no name of any Sarvarakar prior to him in the said temple. Whereas, it is prima facie clear from the facts that the temple was in existence since long time and used by public at large. Whereas, none of the documentary evidence has been produced about Sarvakarship or of maintenance of said temple by the predecessor of the defendant/respondent or of any predecessor of first Sarvarakar, late Ram Swarup Maheshwari. It is the first name which came into existence, whereas, public nature of the temple is not disputed by the both parties.

It is held by the Supreme Court in Janardan Dagdu Khomane (supra) that constructive trust arises by operation of law, without regard to the intention of the parties to create a trust.

In view of facts and circumstances of the case, being public nature of temple and while granting leave, the court does not decide rights of the parties and no right is adjudicated at this stage. The court has merely to see that there is prima facie case for grant of leave to file the suit. This order does not in any way affect the final decision which will be given on merits after the parties have led evidences in the suit. Hence, the impugned order dated 13.1.2026, passed by the learned Additional District Judge/Fast Track Court No.1, Etawah, in Misc. Case (Under Section 92 of C.P.C.) No. 103 of 2021 (Ramchandra Ji Maharaj Virajman Mandir Ramtal and others Vs. Sushil Maheshwari since deceased and another), is hereby set aside and the leave to file original suit under Section 92 CPC is hereby allowed.

The present appeal is accordingly, allowed.