MANAHARMAYUM TOLEN SHARMA Vs. SAKHI GOPAL DEVTA

JUDGEMENT

(1.) THIS defendants' Second Appeal is against the judgment and decree dated 24 -5 -1973 of the District Judge, Manipur in Civil Appeal No. 21 of 1972, confirming the judgment and decree dated 19 -4 -1972 of the Munsiff, Imphal West in O. S. No. 6l of 1971.

(2.) IN O. S. No. 61 of 1971, the plaintiff Sakhi Gopal Devta, an idol installed at Khurkhul Sevok Leikai, by its next friend Usham Rupachandra Singh, sued the defendants Manoharmayum Tolen Sharma and his son Manoharmayum Ra -jen Sharma, claiming relief of declaration of its title to the suit land and cancellation of the name of defendant No. 2 in the land records by setting aside the order dated 10 -11 -1965 passed in Mutation Case No. 272/A.S.O./I.W./1965. The defendants contested the suit by filing a written statement denying the allegations.

(3.) MR . L. Nandakumar Singh, the learned counsel appearing for the defendant -appellants, fairly submits that this second appeal may hot be maintainable on concurrent findings of facts. The learned counsel, however, submits that both the learned Courts below ought not to have proceeded with the suit, inasmuch as, it involved a property belonging to a public trust and it ought to have been instituted in conformity with the provisions of Section 92 of the Code of Civil Procedure. Asserting that it is a question of law affecting jurisdiction, the learned counsel submits that though the suit is for declaration of title and for cancellation of mutation, since it involves the property belonging to a public trust, it falls clearly under Clause (h) of Section 92(1) C. P. C. Section 92 of the C. P. C. is as follows : '92. Public charities (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature,or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate -General, or two or more persons having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject -matter of the trust is situate to obtain a decree (a) removing any trustee; (b) appointing a new trustee; (c) vesting any property in a trustee; (cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property; (d) directing accounts and inquiries; (e) declaring what proportion of the trust property or of an interest therein shall be allocated to any particular object of the trust; (f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged; (g) settling a scheme; or (h) granting such further or other relief as the nature of the case may require. xxxxx' The learned counsel submits that Clause (h) is very wide and includes any further or other relief, not envisaged in Clauses (a) to (g) and the relief of declaration of title is covered by Clause (h). In the alternative, the learned counsel submits that it may also come under Clause (c).