Tuesday, 4 February 2020

Supreme Court: S 92 of CPC is not applicable to suit filed by trust

Section 92 of the Code
contemplates a suit against a Trust either for removing any trustee;
appointing new trustee; or vesting any property in a trustee etc.
but the present suit itself is by a Trust against a Sevadar, therefore,
the procedure prescribed under Section 92 of the Code would not
be applicable in a suit by a Trust. 

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 724 OF 2020

GHAT TALAB KAULAN WALA  Vs  BABA GOPAL DASS CHELA SURTI DASS


HEMANT GUPTA, J.
Dated:JANUARY 31, 2020.

1. The plaintiff is in appeal aggrieved against an order passed by the
High Court of Punjab and Haryana on 18th July, 2016 whereby the
decree of two courts in its favour were set aside for the reason that
Charan Dass (PW-1) was not competent to file suit as it could not
demonstrate the nature of charities which the Trust had
undertaken and that such suit is not maintainable without
complying with the requirements of Section 92 of the Code of Civil
Procedure, 19081. The Court held as under:
“20. For maintaining the suit qua public Trust, the leave
of the Court under Section 92 CPC is mandatory.
1 for short, ‘Code’

Pleadings of the plaintiff are conspicuously silent about
these facts. Secondly for maintaining the suit, plaintiff
has to show that there was a complete dedication of the
property in favour of the general public. There has to
be evidence proving beyond pale of doubt that Trust is a
public Trust. Though no instruction in writing is
required, to dedicate property for religious or charitable
purposes. Only a clear unequivocal manifestation of
intention to create a Trust and vesting thereof in the
donor as a trustee is required. No such manifestation of
intention to create Trust and trustee thereof have come
forth on record.”
2. The appellant had filed a suit for mandatory injunction directing the
defendant Baba Gopal Dass (since deceased) to vacate the
management of Mandir, building and other property. The appellant
has alleged itself to be the owner of the suit property being
managed by the Manager and Trustees. The defendant was said to
be a Sevadar. In the said suit, the stand of the defendant was that
the representatives of the plaintiff Manohar Lal and Charan Dass
were never appointed as Managers or Trustees of the appellant and
they fraudulently got their names entered in the revenue record.
The stand of the defendant was that he did everything for the
welfare of the Mandir and never sought instructions from the
plaintiff and they have no right to seek rendition of accounts from
the defendant. On the pleadings of the parties, the learned trial
court framed the following issues:
“1. Whether the plaintiff is entitled to the injunction
prayed for? OPP.
2. Whether the plaintiff is owner of the suit property as
alleged in para No. 1 of the plaint? OPP.
2
3. Whether the plaintiff have no locus standi to file the
suit? OPP.
4. Whether no cause of action has arisen to the plaintiff
for filing this suit? OPP.
5. Relief.”
3. On issue Nos. 1 and 2, the learned trial court held that the
defendant is Sevadar of plaintiff Trust and that the plaintiff does not
want to keep the defendant as he is not properly watching the
interest of the Mandir and that he has not rendered the accounts of
the income of the Temple. The Court also found that the defendant
is not claiming ownership of the property in question. The trial
court considered the statement made by the defendant in the
previous suit for permanent injunction filed by the plaintiff on 8th
April, 1986 restraining the defendant from raising any construction
in the shape of shops on the property in question. The Appellant
examined Harban Singh (PW-3) an Advocate of the defendant in
the previous suit, that the defendant admitted that the suit
property belongs to the plaintiff and the defendant is working only
as a Sevadar. The statement (Ex.P/1) reads as under:
“I have instructions from the defendant that the suit
property belongs to the trust i.e. the plaintiff, where I
am working only as a Sevadar. Whatever I will do, I will
do for the welfare of the trust and any instructions
given by the manager of the trust especially in regard
to the construction of the shops I shall abide by in
addition to the instructions pertaining to the manner in
which shops are to be constructed and rent thereof
collected.”
3
4. After returning such finding, the trial court declined to grant
mandatory injunction to the defendant to vacate the Mandir but
held the plaintiff was entitled to rendition of accounts.
5. The plaintiff alone filed first appeal aggrieved against the judgment
passed by the learned trial court. The learned First Appellate Court
relied upon a judgment reported as Bhagwan Dass and others v.
Jairam Dass2, to hold that the Sevadar is liable to be removed
where Sevadar asserts title hostile and fails to keep regular
accounts.
6. The defendant filed second appeal before the High Court aggrieved
against the decree passed by the First Appellate Court. During the
pendency of the second appeal, Baba Gopal Dass died and one
Ram Niwas, claiming to be Chela of Baba Gopal Dass was ordered
to be impleaded to represent the estate. Such order was
challenged by the appellant before this Court in Civil Appeal No.
9638 of 2003 wherein it was held that Ram Niwas had been
impleaded to represent the defendant but that will not clothe him
to be successor in interest in the property and that the status of
deceased Baba Gopal Dass as well as Ram Niwas have to be
independently considered as a preliminary issue in the second
appeal.
7. In second appeal, the first substantial question of law was framed
at the time of admission of appeal whereas second substantial
2 AIR 1965 P & H 260
4
question of law was framed after the order passed by this Court.
The same are reproduced hereunder:
“1. Whether the plaintiff Charan Dass could represent
the Trust known as Ghat Talab Kaulan Wala which is also
known as Prabhu Wala and whether the suit filed by the
Charan Dass is maintainable?
2. Whether status of the deceased Baba Gopal Dass as
well as that of Ram Niwas, when independently
considered, would make them Legal Representatives
when Gopal Dass had mentioned himself to be
‘Sevadar’ and Ram Niwas as alleged Chela of Baba
Gopal Dass?”
8. In respect of the second substantial question of law, the High Court
held that the defendant was only a Sevadar as admitted in his
statement in the earlier suit and that Ram Niwas was impleaded as
his legal representative. He is only a member of public who could
offer his services in the place of deceased Defendant. The Court
held as under:
“25. …However, in case of public Trust every individual
has right to serve. Baba Gopal Dass was also serving in
the Mandir irrespective of the Mandir as a public Trust
property or private Trust property. There was nothing to
inherit like services rendered by Baba Gopal Dass.
Inheritance of services of Baba Gopal Dass was open to
all. No special status can be conferred upon Ram Niwas
so far as inheritance of service/Sevadari is concerned.
26. In view of aforesaid, any person from public can
offer service to Mandir. Therefore, in view of first part
of the order passed by the Hon’ble Apex Court Ram
Niwas was only impleaded for the purposes of
representation in the present appeal without meaning
anything on merits i.e. rights of Baba Gopal Dass viz-aviz
suit property. The second part of the order in the
context of decision on the individual right of Ram Niwas
is concerned, the same has to be decided that Ram
Niwas is none else than any person from public at large,
5
who could offer his service in place of Baba Gopal Dass.
There are no pleadings, nor any evidence on record to
show that Ram Niwas was ever appointed as Chela by
Bhek or any other religious ceremonies were performed
by competent authority or by Sadhu Samaj for
appointing him in place of Baba Gopal Dass.”
9. Thus, the second substantial question of law was decided, as
mentioned above, that Ram Niwas was impleaded for the purpose
of representation of the deceased in the appeal. The High Court
found that there was no evidence that Ram Niwas was ever
appointed by Chela or in any other manner but as any member of
public, he was offering his services to the Temple.
10. While deciding first substantial question of law, the suit was found
to be not maintainable. Learned counsel for the appellant
vehemently argued that the High Court erred in law in finding that
the suit is not maintainable in view of Section 92 of the Code as
such provision is meant for invocation of jurisdiction against the
Trust. Section 92 of the Code has no applicability in respect of a
suit instituted by a Trust. It is pointed out that the appellant has
filed suit through the Manager and Trustee as a private Trust.
However, during the pendency of the proceedings, the Trust has
been registered as a Society on 29th June, 2016 when Memorandum
of Association of Ghat Talab Kaulan Wala Prabhu Lal Wala, Village
Mundi Kharar, Tehsil Kharar, District S.A.S. Nagar was registered.
11. Learned counsel for the respondent argued that the appeal is filed
by one Devinder Gupta who has no concern with the appellant,
6
therefore, appeal itself is filed by incompetent person. It is also
argued that the appellant has been paid a sum of Rs.1,48,09,884/-
on account of acquisition of part of land whereas the respondent
has apprehension that such amount will be misappropriated by the
appellant.
12. We have heard learned counsel for the parties. We find that the
order passed by the High Court in respect of first substantial
question of law is not sustainable. Section 92 of the Code
contemplates a suit against a Trust either for removing any trustee;
appointing new trustee; or vesting any property in a trustee etc.
but the present suit itself is by a Trust against a Sevadar, therefore,
the procedure prescribed under Section 92 of the Code would not
be applicable in a suit by a Trust. Section 92 of the Code confers
right on a person in case of any alleged breach of any express or
constructive trust created for a public purpose of a charitable or
religious nature. Since the Trust itself was the plaintiff, the finding
of the High Court is clearly erroneous and not sustainable. The fact
is that Baba Gopal Dass has been found to be Sevadar as per
statement (Ex.P/1) given in the previous suit for permanent
injunction. Therefore, Ram Niwas as legal representative of Baba
Gopal Dass will not have a larger interest than what was vested in
the original defendant. Ram Niwas has been found to be doing
service to the Temple as member of public. The High Court has
affirmed the finding that Ram Niwas could offer his services but he
has not proved that he was appointed as Chela of Baba Gopal Dass.
Still further, the decree for rendition of accounts could be executed
only against the deceased Baba Gopal Dass, therefore, after his
demise, such decree cannot be executed.
13. In view thereof, the finding of the High Court on first substantial
question of law is set aside and the suit is found to be maintainable
and was rightly decreed by the First Appellate Court.
14. We find that the apprehension of the respondent that the amount
of compensation can be misused is not tenable. The appellant is a
registered Society. The appellant as a registered Society has
statutory obligations. We find that such apprehension is
misconceived and beyond the scope of the present suit and the
appeal arising out of such proceedings.
15. Consequently, the present appeal is allowed. The order of the High
Court in respect of first substantial question of law is set aside and
the suit is decreed.
.............................................J.
(L. NAGESWARA RAO)
.............................................J.
(HEMANT GUPTA)
NEW DELHI;
JANUARY 31, 2020.

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