Banerjee and Aikman, JJ.:— This is an appeal by the plaintiffs to a suit which purported to have been brought under s. 539 of the Code of Civil Procedure, and was instituted in the Court of the District Judge of Meerut. The allegation was that a certain piece of land was wakf property, being a grave-yard dedicated to the use of persons who had no grave-yards of their own, that the defendants had taken wrongful possession of the land, and that one of the defendants had sold it to the other. The plaintiffs asked for a declaration that the land was endowed property, for the appointment of one of the plaintiffs or some other person as muta-walli of the property, for the framing of a scheme for the management of the property, for the ejectment of the defendant No. 1 from the land and for the making over of the land to the person who might be appointed mutawalli. The Court below has dismissed the suit on the ground that this was not a case to which s. 539 of the Code of Civil Procedure applied.
In our opinion the learned Judge was right in holding that this suit did not come within the purview of s. 539. [188] That section contemplates the existence of an express or constructive trust created for public, charitable, or religious purposes. In this case all that is alleged is that the land in question is endowed property, and it is not alleged that there was any express or constructive trust in favour of any one. S. 539 cannot, in our opinion, apply to the case of property from which it is sought to remove a trespasser. This view is supported by the ruling of the Bombay High Court in Lakshmandas Parashram v. Ganpatrav Krishna, and of the Madras High Court in Strinivasa Ayyangar v. Strinivasa Swami. It is clear therefore that the suit could not have been instituted in the Court of the District Judge under s. 539 of the Code of Civil Procedure.
The learned vakil for the appellants has contended that even in the view which we have taken of the case, and which was taken by the learned Judge of the Court below, the plaint ought to have been returned for presentation in the proper Court, and the suit should not have been dismissed. It may be that some of the reliefs claimed are such that an ordinary Civil Court may not be competent to grant; we do not decide this point; but there are certainly other reliefs claimed which are clearly within the cognizance of an ordinary Civil Court, and for this reason we are of opinion that the learned Judge of the Court below should, instead of dismissing the suit, have dealt with it under s. 57, cl. (a) of the Code of Civil Procedure, and returned the plaint to be presented to the proper Court. We therefore set aside the decree of the Court below dismissing the suit, and remand the case to that Court with directions to deal with the plaint in the manner which we have indicated above. The respondents will get their costs in this Court and in the Court below, as the appellants have substantially failed.
Appeal decreed.