Ghat Talab Kaulan Wala vs Baba Gopal Dass Chela Surti Dass (Dead) By Lr Ram Niwas

GHAT TALAB KAULAN WALA .....APPELLANT(S)

VERSUS

BABA GOPAL DASS CHELA SURTI DASS (DEAD) BY LR RAM NIWAS .....RESPONDENT(S)

JUDGMENT

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

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’

1 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.

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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 8 th

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.”

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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-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 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 29 th 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.

7 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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