SULEMAN HAJI USMAN Vs. SHAIKH ISMAIL SHAIKH OOSMAN

JUDGEMENT

(1.) This was a suit brought in the name of the two plaintiffs, Suleman Haji Usman and Jusub Jan Mahomadi purporting to be disciples of a certain Pir for relief regarding an alleged Darga of the Pir Saheb said to be in the possession of the defendants, for a declaration that the Darga was the owner of all the moveable and immoveable property in the possession of the defendants; that the defendants were unfit to act as trustees; for a perpetual injunction against the defendants; and that the plaintiffs or other persons might be appointed trustees in their place, and put in possession of the property.

(2.) Under the authority of a Government Resolution, the Collector of Thana was invested with the powers of the Advocate-General under Section 539 of the Code of Civil Procedure of 1882, and by virtue of Section 157 of the Code of Civil Procedure of 1908, the powers conferred operate under the present Code in respect of Sections 91 and 92. We are here concerned with Section 92. Sub-section (2) of that section provides that " save as provided by the Religious Endowments Act of 1863, no suit claiming any of the reliefs specified in Sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section." This being a suit in respect of such a trust claiming reliefs specified in Sub-section (1) it can only be supported if brought in conformity with the provisions of Section 92. It is sought to show that these provisions have been complied with by a communication from the Collector in reply to a petition addressed to him by the 1st plaintiff alone. That petition states that "the petitioner as a member of the Mahomedan community, and especially a disciple of His Holiness Pir Mowlanasaheb wants to file a civil suit against the said heirs according to the Civil Procedure Code, Sections 92 and 93. Your Honour s consent is necessary for the institution of the suit. The suit is to be filed in the name of the petitioner and another member of the Mahomedan community and disciple of the Pir Saheb, Jusub Jan Mahomed." The Collector s reply is as follows:- "The Collector doubts whether Section 92 of the Civil Procedure Code applies to this case, but if the Court holds that it does, the Collector hereby declares his consent to the filing of a suit to claim any of the reliefs specified in Section 92 which the Court may deem fit to grant."

(3.) In some High Courts it was considered, until the year 1908, that the provisions of Section 539 were permissive and not imperative, but that has never been the view of this High Court, and the Legislature by the enactment of Sub-section (2) of Section 92 has made it clear that Section 92 must be regarded as imperative.