HARI BHAGWAN SHARMA Vs. BADRI BHAGATJHANDEWALAN TEMPLE SOCIETY

JUDGEMENT

(1.) -The plaintiffs, four in number, who are all residents of Delhi and who claim to be Sanatanist Hindus being followers of Sanatan Dharam having belief and faith in Idol worship, Smritis, Upnishads and Puranas (i.e. holy scriptures of Hindus) have instituted this suit under section 92 of the Code of Civil Procedure (for short the Code) against Badri Bhagat Jhandewalan Temple Society (Registered) through its Secretary Shri Ram Avtar Gupta and 34 other persons in respect of an alleged public trust. It is averred that about a century ago one Bhagat Badri Dass obtained a piece of land measuring 30,929 sq. yards comprised in khasra No. 40, Village Banskoli, Delhi, for the purpose of erecting a temple and a Dharamsala and he erected a temple thereon and installed the Idol of Goddess Durga Mata on a permanent padestal for the benefit of Sanatanist Hindus. He declared the properties as trust properties including the buildings and land mentioned above and thereafter he started looking after the trust property, which was a public trust of a charitable and religious nature, as a manager as the properties vested in the Idol. Thus, the beneficial interest of the trust vested in an uncertain fluctuating body of persons answering to a particular description, namely, Sanatanist Hindus and the temple where where the Idol was installed came to be known as Badri Bhagat Jhandewalan Mata Devi Temple. Subsequently, some more idols were installed in the said temple and buildings constructed around it. After his death in or about 1898 his only son Ramji Dass Tandon constructed a Pathsala named Sanatan Dharam Sanskrit Vidyashala (Registered) and the same was affiliated to Banaras Hindu University. The said Pathsala was constructed with public funds and the offerings made by the devotees at the temple. Still later after the death of Ramji Dass Tandon in 1936, his son Shyam Sunder took over the management and unkeep of the temple and the estate attached to it. In 1944 Shyam Sunder with a view to reiterate his dedication to the temple, made a declaration that the temple and the estate called 'Jhandewalan Estate' constituted a public trust and with a view to ensure its management in a regular and proper manner he created a Society called 'Badri Bhagat Jhandewalan Society,' now defendant No. 1. The Society framed its rules, regulations and a memorandum which were duly registered under the Societies Registration Act. 11 prominent and respectable Sanatanists of Delhi were named as trustees while Shyam Sunder himself became a life trustee to manage the affairs of the registered Society and the trust. Subsequently, fresh trustees were taken as and when occasion arose. The plaintiffs further contend that Prem Nath Kapoor, defendant No. 2, is claiming that he has become a life trustee by virtue of his adoption as a son by late Shyam Sunder, who died on 27th March 1959, as also under the will alleged to have been executed by Shyam Sunder on 27th March 1959. Further defendant No. 2 has been indulging in undesirable activities and has been making alienations in respect of the properties of the trust in the form of leases etc. to various bodies like the R.S.S. and has misappropriated the enormous funds of the trust which are received in the shape of offerings etc. from the devotees. He has even co-opted some nonSanatanists as trnstees which was against the letter and spirit of the declaration of trust. The plaintiffs' have also adverted to some litigation which has been going on between Badri Jhandewalan Temple Society and its members on the one hand, viz., defendants I to 21 and Yogeshwar Attrey, defendant No. 22 and other defendants on the other, with regard to the possession and control of the trust and its properties. Defendant No. I has, inter alia, instituted suit No. 447/82 in this Court against Yogeshwar Attrey, defendant No. 22 etc. for his removal as head priest of the temple. In turn, said Yogeshwar Attrey and other defendants claim that they have a right to manage and control the properties of the temple and the trust and there is a scramble between the two factions for control of the same. The plaintiffs have. therefore, prayed thatall the present trustees, whether legally appointed or purporting to act so, be removed ; that new trustees of unquestionable loyally to Sanatan Dharam and having belief in the Idol worship be appointed and a scheme be fettled for the trust. Some other reliefs have also been claimed in terms of section 92 of the Code.

(2.) Simultaneously with the institution of the suit, the plaintiffs moved Civil Rule 4/82 for permission to institute a suit against the defendants in a representative capacity under section 92 of the Code. D. R. Khanna, J., made the following order thereon : "Subject to just exceptions, the permission to sue under section 92 C.P.C. is granted. Suit be registered. Summons to the defendants for 10-11-1982."

(3.) 1.A. 383/83 has been made by some of the contesting defendants under VII, Rule II read with section 151 of the Code. It is contended that the plaint is liable to be rejected under Order VII, Rule II because : , (i) there is no legal, valid and unconditional permission of the Court to institute the suit as contemplated in section 92 Civil Procedure Code . ; (ii) that the suit has been instituted by the present trustees for the benefit of Yogeshwar Attrey,, defendant No. 22 and his associates who have set up a bogus society called "Durga Bhajan Mandal, padri Bhagat Jhandewalan Temple Development Society" with a view to usurp the temple and properties of the trust as also the enormous income of the same. Thus, according to them, the suit has not been instituted by the plaintiffs in a representative capacity for the purpose of vindicating the rights of the public at large although the reliefs claimed have been dressed up in such a manner as to fall within the scope and ambit of section 92 of the Code ; (iii) the plaint does not disclose any cause of action because the averments made in the plaint do not disclose any existing and real interest of any of the plaintiffs as devotees of the temple and beneficiaries undar the trust.