ALOK KUMAR NUNDUN Vs. SAMIR KUMAR NUNDUN

JUDGEMENT

(1.) 1. The challenge in this revision application is to the order dated 29.10.2005 passed by the learned Additional District Judge 9th Court at Alipore in Misc. Case No. 18 of 2002 whereby the learned Court found the case not maintainable in his Court and directed to return the application under Order 7 Rule 10 of the Civil Procedure Code with a liberty to file the same in the appropriate Court having jurisdiction to try the same.

(2.) The backdrops of this revision application is stated below; in short : a) One Rajani Kanta Nundun, since deceased, the predecessor- in-interest of the parties to the Misc. Case no. 18 of 2002 executed a deed of settlement dated 3.4.1958, registered on 18.4.1958 whereby he created a religious and charitable trust in favour of his family deities, Sri Sri Sridhar Narayan Jiwe Thakur and Srimati Mahalakshmi Thakurani. Rajani Kanta Nundun installed the deities mentioned above in a `Thakurghar' on the roof of the second floor of the premises no. 27A Beni Nundun Street. By the said deed of settlement creating trust Rajani Kanta Nundun appointed himself as the first trustee and shebiat for the purpose of said trust. The modalities of Shebiatship and Trustees was clearly mentioned in the settlement deed. According to that settlement deed, the male heir in the direct line of sanction would be Trustees- cum-Shebiats. He also made provisions for continuous worship and daily sheva-puja of the deities by appointing priest on payment of monthly salary. He also provided in the settlement deed for remuneration of the trustees and source of money for the maintenance of Trust properties. According to the said deed surplus income of the Trust properties would be spend for hospitalities and charities for relief of needy public. b) That during his life time the said Rajani Kanta Nundun being the sole Trustees-cum-Shebiats performed his duties and obligations as such in terms of the said deed of settlement and also spend excess amount for charitable purposes. He died intestate on 13.1.1992 leaving behind him surviving his heirs in the direct main line i.e. his widow, Grandson, daughter-in-law, four sons who inherited the property laid by Rajani Kanta Nundun. The petitioner Alok Kumar Nundun is the Grandson of Rajani Kanta Nundun while Gita Nundun, the petitioner no. 2 is his mother. The father of the petitioner no. 1 and husband of petitioner no. 2 Aurn Kumar Nundun predeceased Ranjani Kanta Nundun. The opposite parties 1 to 4 are sons of Rajani Kanta Nundun. All of them mutually started working as trustees-cum-shebiats in respect of the Trust properties. The opposite parties, in order to oust the petitioners from the Trust properties and family dwelling house, disturbed the petitioner from performing any act of Sheba-Puja of the deities and declared that they were the only Shebiats-cum-Trustees in respect of the Trust created by Rajani Kanta Kundun. They started realising the entire amount of rent from the tenants of the Trust properties and misappropriated the same without rendering any account to the petitioners. They also failed and neglected to perform Sheba-Puja of the Deities and maintain the Trust properties properly. There was mismanagement and gross negligency in the matter of Sheva-Puja of the Deities and maintenance of the Trust properties. The petitioner served a notice through their Lawyer on 28.9.1992 on the opposite parties demanding the account of the rent realised by the opposite parties and to pay proportionate share of the same to the petitioners. The opposite parties by a reply dated 5.10.1992 denied the right of the petitioners to act as Shebiats-cum-Trustees. They filed a M. P. Case no. 882 of 1994 in the Court of learned Executive Magistrate making false allegations of overt the act by the petitioners. They instituted a suit being no. T.S. 98 of 1994 in the 4th Court of Civil Judge, Junior Division at Alipore against the petitioners in respect of Trust properties praying for permanent injunction restraining the present petitioners from disturbing their peaceful possession over the same. That suit was contested by the petitioners. The opposite parties also filed another suit being T.S. No. 172 of 1995 in the same Court praying for a decree of eviction of the petitioners from the premises no. 27A, Beni Nundun Street on the ground that the petitioners had no right to act as Shebiats-cum-Trustees in respect of the suit properties on the basis of deed of settlement and as such had no right to stay and live in the said property. The petitioners have been contesting that suit also by filing written statement. c) The opposite parties have rendered themselves guilty of deliberate mis-management and mal- administration of the Trust properties and mis-appropriation of the Trust fund. So, the petitioners filed a Misc. Case no. 18 of 2002 against the opposite parties praying for removal of the opposite parties no. 1 to 4 from the office of Shebiats-cum-Trustees in respect of the Trust properties and appoint the petitioner no. 1 or some person as Shebiats-cum-Trustees. d) The opposite parties in their written objection challenged the maintainability of the case Under Section 73 and 74 of the Indian Trust Act and prayed before the Court for considering the maintainability of the case first of all. e) That prayer was opposed by the present petitioners wherein they have taken the plea that maintainability of the case can not be heard isolatedly or separately from the other issues. The learned Court, however, took up the issue of maintainability of the case for consideration as prayed for by the opposite parties and by order no. 31 dated 29.10.2005, the learned Court opined that the application under Section 73 and 74 of the Indian Trust Act filed by the present petitioners was not maintainable in his Court and he ordered for return of the application under Order 7 Rule 10 of the Civil Procedure Code with a liberty to file the application in appropriate Court having jurisdiction to try the same.

(3.) Being dissatisfied with and aggrieved by the said order this revision application has been filed by the petitioners on the ground: i) that learned Court committed a serious of jurisdictional error by returning the application under Section 73 and 74 of the Indian Trust Act. ii) that learned Court erred in coming to a conclusion that proviso to Section 1 of the Indian Trust Act stands in the way for maintaining the application under Section 73 and 74 of the Indian Trust Act before the principal Civil Judge having original jurisdiction in the District. iii) that learned Court failed to notice that the Trust created by the settler was not only a private trust but also meant for public charitable purpose and as such, made a mistake by saying that the application fall within the mischief of the proviso to Section 1 of the Indian Trust Act.