DANDI SWAMI RAMANAND SARASWATI GURU DANDI SWAMI VI Vs. DANDI SWAMI JAGDISHSWANAND SARASWATI GURU DANDI SW

JUDGEMENT

(1.) Being aggrieved by the order dated 31/10/2011 passed by II Civil Judge, Class-II, Ujjain in civil suit No.34-A/ 2010 whereby application filed by the petitioners under Section 32 of M.P. Public Trust Act was dismissed, present petition has been filed.

(2.) Short facts of the case are that respondent filed a suit for declaration and permanent injunction which was contested by the petitioners on the ground that suit itself is notmaintainable as the suit property is the trust property. During pendency of suit an application was filed by the petitioners alleging that since the suit property is trust property, therefore, suit be dismissed. The application was opposed by the respondent. After hearing learned Court below dismissed the said application against which present petition has been filed.

(3.) Mr. MK Jain, learned counsel for the petitioners argued at length and submit that the impugned order passed by the learned Court below is illegal, incorrect and deserves to be set-aside. It is submitted that from perusal of plaint allegation it is evident that suit property is the property of trust, therefore, in the circumstance without holding inquiry learned Court below committed error in dismissing the application filed by the petitioners. Learned counsel placed reliance on a decision in the matter of Pooranchand Vs. The Idol Radhakrishnaji, 1978 MPLJ 660 wherein Division Bench of this Court has held that in case trust suing for declaration that temple is debutter property and defendant is not owner of same and the defendant alleging property to be his private property under will by the alleged creator stating that plaintiff had not mentioned in plaint whether property was private or public trial Court should first determine question whether trust was public or private and if public stay to hand until it is got registered. Learned counsel placed reliance on a decision in the matter of Umesh Kumar Puri Vs. State of M.P.,1997 1 MPWN 176 wherein this Court has held that provision ofSection 32 of Public Trust Act are attracted on finding of Public Trust and right claimed on its behalf. Further reliance is placed on a decision in the matter of Mukut Singh Sikarwar (Col.) Vs. Moorti Shri Dwarkadhishji Maharaj,1992 2 VIBHA 215 wherein management of property belonging to temple claimed in suit, temple being trust is required to be registered as such and civil suit is barred without such registration as contemplated under Section 27 (4). On the strength of aforesaid position of law, learned counsel submits that the petition filed by the petitioners be allowed and the impugned order passed by the learned Court below be setaside.