1. The judgment proceeded after setting out the facts. At the hearing of the suit Mr. Vakeel on behalf of defendant 1 raised a preliminary issue, viz., whether the suit as framed was maintainable. He has contended that the present suit would fall under section 92 of the cpc and as the plaintiffs have not filed it with the consent of the Advocate-General it cannot be maintained Prayer (g) of the prayers of the plaint is that defendant 1 may be ordered to render a complete account of the income and offerings of the said temple and the rents and profits of the said shop. That relief along with the relief claimed under prayer (b) of the prayers to the plaint, namely, that it may be declared that the rents and profits of the shop opposite the said temple are dedicated for the use and benefit of the said temple, are abandoned by the plaintiffs. It is unnecessary therefore to consider the force of defendant 1's objection relating to the maintainability of the suit so far as these two prayers are concerned.
2. Mr. Vakeel has contended that the remaining prayers of the plaint would fall under clause (1)(h) of S. 92, viz granting such further or other relief as the nature of the case may require. In Abdur Rahim v. Abu Mahamed (1) their Lordships of the Privy Council have held that the words “further or other relief,” contained in clause (1)(h) of S. 92, must, on general principles of construction, be taken to mean relief of the same nature as clauses (a) to (g). In the same case their Lordships have held that a prayer for a declaration that the property in suit is wakf (public charitable) property and not the personal property of the defendants, is a prayer for relief not covered by S. 92. Our Courts are bound by this ruling. In Thackersey Dewraj v. Hurbhum Nursey (2) Scott, J. held that any person interested in the proper observance “of a religious endowment may sue in his own name to have the trust property administered and that S. 539 (now S. 92) did not prohibit a private suit or make the sanction of the Advocate General a condition precedent.
3. In Muhammad Abdullah Khan v. Kallu (3) a Divisional Bench of the Allahabad High Court held that a suit for a declaration that a certain piece ??? land was a graveyard dedicated to the use of such persons as had no graveyard of their own was Dot a suit which fell within the purview of Section 539 (now Section 92 of the CPC. Similarly, in the later case of Jamaluddin v. Mujtaba Husain (4) the same Court held that Section 539 (now Section 92) of the CPC of 1882, presupposes the existence of a trust for the administration of which it is necessary to make provision; and that section cannot apply to a suit in which the object of the plaintiff is to obtain a declaration that certain property is endowed property, the fact of endowment being denied on the other side.
4. The plaintiffs as members of the Hindi public would be entitled to access to the temple for the purpose of worship if the temple is a public charitable trust Whether they are entitled to remain at the temple as pujaris would then be a matter between them and the Advocate-General in whom the temple would be vested on behalf of the Crown. Defendant 1 would not then be entitled to dismiss them from their office of pujari unless he claimed to be a shebait or trustee.
5. The plaintiffs in their personal capacity are entitled to maintain this suit as defendant 1 has denied the alleged endowment and claims the temple as his private property. It is a material issue in this case whether the temple in suit is a public endowment. The plaintiffs affirm and defendant 1 denies it. Until it is established or conceded that the temple is a public endowment there is no scope in my judgment for S. 92 to come into operation. The position taken up by the Advocate-General on this point is that he submits himself to such order of decree as the Court may deem fit to pass in this suit and submits further that, in the event of it being declared that the temple and the shop mentioned in plaint (the shop now goes out) are a public charity of a religious nature, proper trustees may be appointed, and, if necessary, a scheme may be framed for the administration and management of the charity.
6. I answer the preliminary issue in the affirmative.
R.M/R.K
7. Answered affirmative.