GANPAT PUJARI Vs. KANAIYALAL MARWARI

JUDGEMENT

(1.) The question involved in this appeal is whether the suit out of which it arises was one contemplated by Section 92, Civil P.C. If the suit was one of that nature it is clear that it cannot be maintained in as much as it was not instituted after obtaining the consent of the Advocate-General in writing and it was not instituted In the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the Local Government. Both the Courts below have held that the suit was not barred by Section 92, of the Code. In this Court there has been a difference of opinion upon the point between Wort, J., and Fazl Ali, J. The suit contemplated by Section 92, must be for one or other of the reliefs set out in Clauses (a) to (h) of the first subsection of that section. The first relief asked for in the present suit was that it may be determined that the property in suit belongs to the general public and to that effect the right may be declared.

(2.) The case of the plaintiff was that the Thakurbari in question was a public property to which the entire Hindu community was entitled to go and worship. This is not one of the reliefs set out in Section 92 of the Code. It is no doubt true that in a suit properly instituted under Section 92, the defendant may raise the objection that the property was not the property of the nature of an express or constructive trust created for public purposes of charitable or religious nature, and on such objection being taken the Court has to decide whether or not the subject matter of dispute was a public charitable and religious trust, but that does not take away the jurisdiction of the ordinary Civil Court to make a declaration that a particular property is a property belonging to the general public.

(3.) It is no doubt true that the second relief asking for the eviction of the defendant from the Thakurbari may be construed to be a relief for the removal of a trustee as contemplated by Clause (a) of Section 92; but assuming that it was a relief of the nature contemplated by Clause (a), the utmost that can be said is that that relief could not be granted in the suit in the absence of the consent in writing of the Advocate-General and because the suit had not been instituted in the principal Civil Court of original jurisdiction. But having regard to the nature of the allegations contained in the plaint the second relief does not necessarily lead to the inference that it was a relief of the nature contemplated by Clause (a) of Section 92.