KISAN VITHOBA SALI Vs. SHRIRAM TUKARAM

JUDGEMENT

(1.) . 1. This application and Civil Revision No. 8-B of 1933, between the same parties, have been heard together, and this order will govern both. The non-applicants brought two suits against the applicant for a declaration that certain property constitutes a public trust. In each case the applicant raised preliminary objections, namely, that the suit was one Under Section 92, Civil P.C, and that the sanction of the Advocate-General not having been obtained the suit could not be brought, and that Under Section 42, Specific Relief Act, a suit for a mere declaration would not lie because the non-applicants were entitled to sue for a consequential relief and had omitted to do so. The lower Court found both these contentions against the defendant-applicant, and he has now applied for revision.

(2.) I am of opinion however that the order of the lower Court is correct for the simple reason that the applicant, who is in possession of the alleged trust property, denies the trust, or rather denies that it is subject to a public trust, and that matter has to be decided, namely, whether the property is the subject of a trust or not: until that matter is decided, the non-applicants will not be able to sue for any consequential relief or for any relies mentioned in Section 92(1), Clauses (a) to (h), Civil P.C. It may be noted that Under Section 92 it is presupposed that an express or constructive trust created for public purposes of a charitable or religious nature exists, but where the nature or existence of such a trust is in dispute, Section 92 will not apply, and a suit for a declaration with regard to the trust may be brought without any sanction. In the present case non-applicant 6 actually applied to the Collector, Amraoti, for sanction to bring a suit, but permission was refused. This is not very material, but it goes to show that the Collector did not consider the matter to be one within the provisions of Section 92, Civil P.C.

(3.) THE learned counsel for the applicant laid great stress upon the decision of P.C. Thevar v. V. Samban 1928 Rang 143 where no doubt it has been held that a suit brought for a bare declaration that certain temples and lands constituted a public trust was barred by the proviso to Section 42, Specific Relief Act. With all due respect I am unable to accept that decision as correct, and I would further point out that it was probably made before the decision of their Lordships of the Privy Council inAbdur Rahim v. Mahomed Barkat Ali 1928 PC 16., referred to above, was made known to the Judges, as in the latter decision the scope of Section 92(l) (h) has been clearly laid down and it has been held that the words "further or other relief" in CI.(h) must, on general principles of construction, be taken to mean relief of the same nature as Clauses.(a) to (g). The reasoning of the Judges of the Rangoon High Court therefore with regard to Section 92(1)(h) at p. 189 would appear to be incorrect.