LACHMAN PRASAD Vs. MUNIA

JUDGEMENT

(1.) This is a plaintiffs appeal arising out of an order returning the plaint in a suit under Section 92 of the code of Civil Procedure for presentation to the proper Court. The plaintiffs alleged that the houses and other properties detailed in the plaint were trust properties situated in the cantonments at Meerut and had been endowed for public and religious purposes for over a century. They further alleged that part of the constructions had been made from public subscriptions and that houses and residential quarters had been built for barbers. It was the plaintiffs case that the barber community of the cantonments used to appoint a manager to look after the worship of the temples and to manage the properties, and that the last manager was one Dhi Mai, father of defendant No. 2, who died in 1916. The plaintiffs went on to allege that since the death of Dhi Mai no manager had been appointed, but the defendant No. 1, a lady, as guardian of defendant No. 2, had been acting as manager of the said properties. They then proceeded to state that various breaches of trust had been committed, that no accounts had been rendered, that the buildings were out of repairs, and that the defendants were even denying the existence of the trust. After having obtained the permission of the Legal Remembrancer, the suit under Section 92 of the Civil Procedure Code was instituted; and the reliefs claimed were: (1) That the defendants be removed from the management of the said trust; (2) that new trustees be appointed; (3) that the trust properties be vested in the new trustees: (4) that accounts of the trust porperties be taken from the defendants from 1916 up to date, (5) that a scheme be laid out for the future guidance and maintenance of the trust; and, lastly, (6) that any other relief which from the nature of the case might be deemed just and convenient be granted.

(2.) The contesting defendants denied the existence of the trust. They denied that they even entered into possession of the properties as trustees, and set up their own title.

(3.) One of the issues framed was, whether the suit was maintainable under Section 92 of the Civil P. C.. No statement of the plaintiffs was taken at the time of the settlement of issues which might have concluded this disputed point. The plaintiffs led their evidence first, and put in Lachman Prasad, one of themselves, as a witness. In the course of his cross-examination Lachman Prasad stated that after the death of Dhi Mai no manager was appointed, and that no one worked as such; and that the defendant No. 1 took possession of the properties on behalf of the minor defendant and claimed to be the owner since Dhi Mai's death. After this statement had been recorded, the objection was again raised on behalf of the defendants that the suit was not maintainable. The learned Judge, without recording any further evidence of the plaintiffs, proceeded to dispose of this point. He came to the conclusion that, having regard to the fact that there was only a half-hearted assertion in the plaint as to the defendants acting as managers, and the evidence of Lachman Prasad himself, it was clear that the defendants could not be regarded as constructive trustees. He, in effect, held that the defendants were mere trespassers and that the suit against them under Section 82 was not maintainable. He wound up by ordering that the plaint should be returned for presentation to the proper Court.