GAFURALLI SAYAD ANWAR Vs. MOHIDDIN SHAMSUDDIN

JUDGEMENT

(1.) This was a suit brought by the plaintiffs praying for a declaration that they and other Mahomedans of other Mohollas at Chopda have a right along with the defendants and other residents of their Moholla, i.e., Darga Moholla, to look after the Darga of Hazrat Mustafa Saheb in the city of Chopda, to manage the property and income of that Darga and to keep accounts, to assemble Urus and to perform all other functions, and that a permanent injunction be issued to the defendants that they for themselves and on behalf of other Mahomedans of Darga Moholla should cause no obstruction.

(2.) The point as to whether the suit is barred under Section 92 of the Civil Procedure Code was not taken by the defendants in their written statement and no issue was raised on the point. The learned Subordinate Judge examined the witnesses on behalf of both the parties and instead of recording findings on the material issues Nos. 3, 4, and 5 dismissed the suit on the ground that the plaintiffs do not represent all the Mahomedans of Chopda, and that the permission ought not to have been given under Order I, Rule 8, of the Civil Procedure Code, and further came to the conclusion that the suit fell within the ambit of Section 92 of the Civil Procedure Code and therefore ought to have been brought with the sanction of the Advocate General in the District Court and not in the First Class Subordinate Judge's Court. The first question, therefore, arising in the case is whether the suit falls within Section 92 of the Civil Procedure Code.

(3.) Two essential conditions are necessary in order that the suit should fall under Section 92 of the Civil Procedure Code either, there must be an alleged breach of an express or constructive trust created for public purposes of a charitable or religious nature, or the direction of the Court is deemed necessary for the administration of the trust. In the event of any of these eventualities, if the suit asks for a decree claiming any of the reliefs mentioned in Section 92, clauses (a) to (h), then the suit shall be instituted in respect of any such trust in conformity with the provisions of Section 92. Reading the plaint we fail to find any allegation of a breach of an express or constructive trust created for public purposes of a charitable or religious nature.