SALIG RAM Vs. UMA SHANKER

JUDGEMENT

(1.) THIS is an application by the plaintiff-respondents praying that this Court may grant a certificate to the petitioners that the case fulfils the requirement of Section 109 (a) and (c) read with Section 110 of the Code of Civil Procedure as also Article 133 (1) of the Constitution. 2. After obtaining the permission of the Advocate General, the plaintiff respondents, who are two citizens of Allahabad, brought a suit under Section 92 of the Civil Procedure Code praying for the following reliefs: "(i) Decree vesting of the Thakurdwara properties namely the house Nos. 62 and 62-A, Golghar Muthiganj, Allahabad (more fully described at the foot of the plaint) in the trustees to be appointed after settling a scheme for the management of the Thakurdwara of Sri Radha and Sri Krishnaji and Sri Mahabirji situated in the said house, including the said house as the property appurtenant to the Thakurdwara. (ii) Costs of the suit. (iii) Such other and further relief as the Court may in the circumstances of the case deem just and proper." Three persons were impleaded as defendants in the suit. It was alleged by the plaintiffs that the house, described at the foot of the plaint, was Thakurdwara wherein idols of Sri Radhaji and Sri Krirshanhi were installed in a room and of Sri Mahabirji in a verandah thereof and the Hindu public had been worshipping the said idols as deities since time immemorial. One Baba Harbhajan Dass was the Shebait after whose death Smt. Sukhrani Devi, who was only a mistress of the Baba, came in possession of the Thakurdwara having got her name mutated in the municipal records as the widow of Baba. After the death of Smt. Sukhrani Devi some time in the year 1954 no one in particular had been looking after the Thakurdwara and the property appurtenant thereto, as no one was responsible to look after and manage it. It was also alleged by the plaintiffs that taking advantage of the position, the defendants had been claiming the ownership of the house in which the idols were installed on the basis of certain sale deeds obtained from Smt. Sukhrani Devi and had been filing suits against the tenants occupying some parts of the building. It was pleaded that the alleged transfer of the house and the Thakurdwara by Smt, Sukhrani Devi to the defendants and the entry of the name of all the defendants in the municipal records as owners thereof was invalid and not binding on the general Hindu public and the idols installed therein. 3. The defence was that neither the house in dispute nor the idols installed therein nor the so-called Thakurdwara were ever endowed property or a public trust. It was further pleaded that Smt. Sukhrani Devi was not a trustee nor was Baba Harbhajan Dass. They owned the property in their own personal rights and the defendants have derived legal title from them. It was also pleaded that the suit was incompetent and was not maintainable under Section 92 of the Civil Procedure Code. 4. The learned Additional District Judge, Allahabad, who tried the suit, found that the house in suit was a public trust and that the plaintiffs who were Hindus of the locality, had sufficient interest to maintain the suit. He also found that the suit was maintainable in the form it was brought. The defence plea that the house in dispute was a personal and private property of Baba Harbhajan Dass and that after him of Smt. Sukhrani Devi was repelled. The defendants were held to be in possession without any right or title of the trust property. The learned Judge accordingly decreed the suit holding that the property in suit comprised of public trust for the benefit of the Hindu public and directed a final decree to be passed appointing new trustees and for management of the trust, the plaintiffs and the defendants were asked to submit a tentative scheme of management and three names for appointment of trustees. 5. The defendants being aggrieved, filed an appeal before the High Court. A Division Bench of this Court hearing the appeal found some difficulty and complexity in resolving what appeared to it conflicting views in decided cases, referred the following three questions for the opinion by a Full Bench: "1. Whether a relief for declaration that a property is endowed property so as to bind strangers to the trust can be granted in a suit under Sec.92 of the C. P. Code.

(2.) WHETHER the plaintiffs in a suit under Section 92 of the Civil Procedure Code, can claim reliefs, which do not find a mention in the permission or sanction granted by the Advocate General under Section 92 of the C. P. Code, and