Ganpat Pujari v. Kanaiyalal Marwari

Kulwant Sahay, J.:— The question involved in this appeal is whether the suit out of which it arises was one contemplated by section 92 of the Code of Civil Procedure. If the suit was one of that nature, it is clear that it cannot be maintained inasmuch as it was not instituted after obtaining the consent of the Advocate-General in writing and it was not instituted in the principal Civil Court of original jurisdiction or in any other court empowered in that behalf by the local Government. Both the courts below have held that the suit was not barred by section 92 of the Code. In this court there has been a difference of opinion upon the point between Mr. Justice Wort and Air. Justice Fazl Ali.

The suit contemplated by section 92 must be for one or other of the reliefs set out in clauses (a) to (h) of the first sub-section of that section. The first relief asked for in the present suit was that it may be determined that the property in suit belongs to the general public and to that effect the right may be declared. The case of the plaintiff was that the thakurbari in question was a public property to which the entire Hindu community was entitled to go and worship. This is not one of the reliefs set out in section 92 of the Code. It is no doubt true that in a suit properly instituted under section 92 the defendant may raise the objection that the property was not the property of the nature of an express or constructive trust created for public purposes of charitable or religious nature, and, on such objection, being taken, the court has to decide whether or not the subject-matter of dispute was a public charitable and religious trust but that does not take away the jurisdiction of the ordinary Civil Court to make a declaration; that a particular property is a property belonging to the general public. It is no doubt true that the second relief asking for the eviction of the defendant from the thakurbari may be construed to be a relief for the removal of a trustee as contemplated by clause (a) of section 92; but assuming that it was a relief of the nature contemplated by clause (a), the utmost that can be said is that relief could not be granted in the suit in the absence of the consent in writing of the Advocate-General and because the suit had not been instituted in the principal Civil Court of original jurisdiction. But having regard to the nature of the allegations contained in the plaint the second relief does not necessarily lead to the inference that it was a relief of the nature contemplated by clause (a) of section 92. The allegation contained in the plaint was that the defendant was appointed by the Hindu public of the place to act as the Pujari. It is true that a Pujari may be a trustee but he is not necessarily a trustee, and there is nothing in the plaint itself to indicate that he was admitted to be a trustee. The defendant in his written statement certainly did not claim to hold as a trustee. He claimed the property as his private property and not a property which belonged to the Hindu public. However, in order to determine the jurisdiction of the court, we have to look at the plaint and not to the written statement; and in the plaint there is nothing to indicate that the defendant was treated as a trustee. The third relief asked for was for a permanent injunction restraining the defendant from obstructing the general public in going to the said thakurbari for the purposes of pouja. This also is not one of the relief set out in clauses (a) to (h) of section 92. It is no doubt true that in a suit properly framed under section 92 a relief may be granted to the plaintiff which may ultimately amount to an injunction restraining the defendant from prohibiting the plaintiff from performing worship in the thakurbari; but, as I have already said, it was not a relief which is contemplated by section 92 and there is no bar to the grant of such relief on account of the absence of the consent of the Advocate-General.

The decision of this court in Sukhdeo Prasad v. Gopal Misra seems to be exactly in point. There also the suit was instituted in the ordinary Civil Court without the consent of the Advocate-General for a declaration that the property was a public religious and charitable trust and that the defendant had no right or title thereto, and for an injunction to restrain him from interference with the property. It was held that the suit for a declaration was maintainable although the relief for removal of the Pujari from office could not be granted and a separate suit had to be instituted for that purpose under section 92 of the Code. The observations of the Privy Council in Abdur Rahim v. Mahomed Barkat Ali, quoted in the judgment of Fazl Ali, J., appear to be pertinent to the facts of this case. The fact that some of the reliefs cannot be granted on account of the absence of the consent in writing of the Advocate-General would not disentitle the plaintiff to the other reliefs.

Upon the facts as round by the courts below and having regard to the findings arrived at by them, I am of opinion that the view taken by Fazl Ali, J., was correct and this appeal must be dismissed with costs.

Appeal dismissed.