GHAT TALAB KAULAN WALAversusBABA GOPAL DASS CHELA SURTI DASS (DEAD) BY LR RAM NIWAS

602                       [2020]
               SUPREME COURT     1 S.C.R. 602
                              REPORTS                      [2020] 1 S.C.R.


A                      GHAT TALAB KAULAN WALA
                                        v.
        BABA GOPAL DASS CHELA SURTI DASS (DEAD) BY LR
                         RAM NIWAS
B                        (Civil Appeal No. 724 of 2020)
                              JANUARY 31, 2020
           [L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
            Code of Civil Procedure, 1908:
C            s. 92 – Applicability of – To a suit by a Trust – Suit by Trust
      for mandatory injuction – Seeking direction against the defendant
      (sevadaar) to leave the management of the Mandir, building and
      other properties of the Trust – Trial Court declined to grant
      mandatory injuction to the defendant, but held that the plaintiff
      was entitled to rendition of accounts – First appellate Court decreed
D
      the suit – During pendency of second appeal, due to death of original
      defendant impleadment of his representative – High Court held that
      suit was not maintainable as requirements of s. 92 was not complied
      with – Appeal to Supreme Court – Held: Section 92 contemplates
      suit against a Trust – In the present case, the suit having been filed
E     by the Trust, the procedure prescribed under Section 92 would not
      be applicable – The suit was maintainable and was rightly decreed
      by First Appellate Court – Trust and Charities.
            Allowing the appeal, the Court
            HELD : 1. Section 92 of CPC contemplates a suit against a
F     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 CPC would not be applicable in a
      suit by a Trust. Section 92 of CPC confers right on a person in
G     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. [Para 12]
      [608-A-B]

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                                       602
GHAT TALAB KAULAN WALA v. BABA GOPAL DASS CHELA                          603
         SURTI DASS (D) BY LR RAM NIWAS

      2. The fact is that the original defendant had been found to       A
be Sevadar as per statement (Ex.P/1) given in the previous suit
for permanent injunction. Therefore, legal representative of the
original defendant will not have a larger interest than what was
vested in the original defendant. The legal representative has
been found to be doing service to the Temple as a member of
                                                                         B
public. The High Court has affirmed the finding that the legal
representative could offer his services but he has not proved
that he was appointed as Chela of the original defendant. Still
further, the decree for rendition of accounts could be executed
only against the deceased original defendant, therefore, after his
demise, such decree cannot be executed. Therefore, the suit is           C
maintainable and was rightly decreed by the First Appellate Court.
[Paras 12 & 13] [608-C-D]
      3. 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            D
statutory obligations. Such apprehension is misconceived and
beyond the scope of the present suit and the appeal arising out of
such proceedings. [Para 14] [608-E-F]
        Bhagwan Dass and Others v. Jairam Dass AIR 1965
        P & H 260 – referred to.                                         E
                       Case Law Reference
AIR 1965 P & H 260              referred to             Para 5
        CIVIL APPELLATE JURISDICTION : Civil Appeal No. 724 of
2020.                                                                    F
      From the Judgment and Order dated 18.07.2016 of the High Court
of Punjab and Haryana at Chandigarh in Regular Second Appeal No.
2263 of 1997.
      V. N. Sinha, Sr. Adv., Puran Mal Saini, Ranbir Singh Yadav, Pati
Raj Yadav, Ritesh Patil, Advs. for the Appellant.                        G
     Ashok Sharma Nabhewala, Devender Mohan Verma, Ms.
Minakshi Vij, Advs. for the Respondent.


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604                SUPREME COURT REPORTS                          [2020] 1 S.C.R.


A               The Judgment of the Court was delivered by
                HEMANT GUPTA, J.
              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
B     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:
C             “20. For maintaining the suit qua public Trust, the leave of the
              Court under Section 92 CPC is mandatory. 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
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              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
E             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
F     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
G     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.
      1
H         for short, ‘Code’
GHAT TALAB KAULAN WALA v. BABA GOPAL DASS CHELA                                    605
 SURTI DASS (D) BY LR RAM NIWAS [HEMANT GUPTA, J.]

         2. Whether the plaintiff is owner of the suit property as alleged in      A
         para No. 1 of the plaint? OPP.
         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.
                                                                                   B
         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              C
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                   D
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     E
         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.”                               F
       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            G
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.

2
    AIR 1965 P & H 260                                                             H
606             SUPREME COURT REPORTS                           [2020] 1 S.C.R.


A            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
B
      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.
C           7. In second appeal, the first substantial question of law was
      framed at the time of admission of appeal whereas second substantial
      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
D           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
E           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
F     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
G           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
H           to Mandir. Therefore, in view of first part of the order passed by
GHAT TALAB KAULAN WALA v. BABA GOPAL DASS CHELA                                607
 SURTI DASS (D) BY LR RAM NIWAS [HEMANT GUPTA, J.]

      the Hon’ble Apex Court Ram Niwas was only impleaded for the              A
      purposes of representation in the present appeal without meaning
      anything on merits i.e. rights of Baba Gopal Dass viz-a-viz 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
                                                                               B
      public at large, 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.”                                                             C
       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               D
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   E
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                  F
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,
therefore, appeal itself is filed by incompetent person. It is also argued     G
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    H
608             SUPREME COURT REPORTS                            [2020] 1 S.C.R.


A     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
B
      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.
C     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
D
      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.
E
             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
F     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.

G
      Kalpana K. Tripathy                                             Appeal allowed.




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