KALI CHARAN Vs. B DWARKA DASS

JUDGEMENT

(1.) The plaintiff has challenged the order dated 1.11.1989 in the present revision filed Under Section 115 of the Code of Civil Procedure, allowing the impleadment application of Baba Brij Nandan Das for being impleaded as defendant No. 2 in place of the deceased defendant No. 2, late Mahant Ram Priya Das.

(2.) Briefly stated, the facts of the case are, that the plaintiff filed a suit Under Section 92 of the Code of Civil Procedure praying for a decree of the removal of the defendants as trustees and for rendition of accounts. In the said suit Sri Dwarika Das was arrayed as defendant No. 1 and Sri Ram Priya Das was arrayed as defendant No. 2. It was alleged that the suit was in respect of a public charitable waqf in which the defendant Nos. 1 and 2 were the trustees and the relief claimed was for the removal of the trustees of a public trust. It was also stated, that, in the proceedings initiated Under Section 3 of the Charitable and Religious Trust Act, 1920, the Additional District Judge, Bareilly by its Judgment and order dated 6.1.1979 held that the property in dispute was a public trust and not a private trust.

(3.) The plaintiff alleged that the defendant No. 2, Ram Priya Das died on 15.2.1985 and since the suit was for the removal of defendant No. 2 as a trustee of a public charitable waqf, the cause of action did not survive any longer against the said defendant No. 2, and, accordingly, the plaintiff moved an application praying that the name of Sri Rarn Priya Das, defendant No. 2 be struck off from the array of parties. The plaintiff also prayed for amending the plaint by adding paragraph 18 (A) in which it was asserted, that Ram Priya Das, the defendant No. 2 had died on 15.2.1985 and that the cause of action did not survive on his heirs. This application was resisted by Baba Brij Nandan Das, who asserted that the property in question was a private trust and not a public trust and that a Will was executed by the defendant No. 2 in his favour and that he is the heir of the deceased and has a right to inherit the property in question. Baba Brij Nandan Das contended that the name of defendant No. 2 should not be deleted and that his name should be substituted as the legal heir and representative of the deceased defendant Ram Priya Das. The court below vide order dated 24.5.1985, allowed the application of the plaintiff for deleting the name of defendant No. 2, Ram Priya Das from the array of parties in the plaint and rejected the objection of Baba Brij Nandan Das. Pursuant to the aforesaid order dated 24.5.1985 the name of defendant No. 2 was deleted from the array of parties.