JAMBULINGA PATHAN Vs. AKILANDA ASARI

JUDGEMENT

(1.) Defendants 1 and 2 are the appellants. The plaintiff's case is that the suit properties have been endowed by the blacksmiths and Kammala community for conducting certain charities, that they appointed defendants 1 and 2 as trustees and that as the defendant 1 was misconducting himself in managing the trust he was removed and that the plaintiffs were appointed trustees. Consequently they sued for the recovery of the properties from the defendant 1 and for other allied reliefs. They instituted the suit under Order 1, R. S. Civil P. C. Objection was taken in the lower Courts that as the scope of the suit showed that it fell within the purview of Section 92, Civil P. C., and as the plaintiffs had not obtained the requisite sanction under that section, the suit should be dismissed. The first two Courts upheld this plea but the learned Judge (Odgers, J.) in second appeal holding that sanction was not necessary, set aside the lower Court's decision and remanded the case for disposal according to law.

(2.) The only question argued in this L. P. A., whether the plaintiff's suit is bad for want of the requisite sanction, we think, must really depend essentially upon the construction of the pleadings in the case. The plaint shows that the plaintiffs complain that the defendant 1 had not kept proper accounts and he has refused generally to allow the accounts to be axamined by the community. Though the plaintiffs do not expressly ask for the removal of the defendant 1, from his trusteeship and for their appointment as new trustees and for a declaration that the properties have become vested in them, it is clear that the object of the suit is to get the dismissal of the old trustee and the appointment of the new trustees by the committee recongized by the Court and to recover the properties through Court from the defendant 1. Though the plaint is worded with care to escape from the ban of Section 92, Civil P. C., a perusal of it will make it clear that the suit comes within the scope of that section. There is an allegation amounting to a breach of trust, and the reliefs asked for really involve the granting of some of the reliefs contemplated by Section 92, Civil P. C.; namely, the appointment of a new trustee and the vesting of property in the new trustee and the administration of the trust. We have, therefore, no doubt that the suit comes within the scope of Section 92, Civil P. C.

(3.) Various decisions of this Court and the other Courts have been brought to our notice, but we do not think it is necessary to discuss them as this case is clearly covered by a decision of this Court in O. S. A. 106 of 1925. The plaintiff in that case brought a suit claiming to be the lawful Muthavalli of a mosque in the Choolai Bazzar. He alleged that the defendant was appointed manager of the mosque by the congregation, that as he was introducing into the original mosque service new customs till then not observed in that mosque, he was removed by the Muhammadan worshippers at a meeting and that he (the plaintiff) was appointed Muthavalli of the said mosque and was instructed to file a suit and obtain possession of the mosque and its endowments from the defendant. The learned Judges, the Chief Justice and Srinivasa Aiyangar, J., on a construction of the plaint held that the suit fell within the scope of Section 92, Civil P. C. In the case before us also the allegations in the plaint which we have noticed above are precisely similar to those contained in O. S. A. 106. As in that case,here also the facts pleaded are perfectly clear that whether the plaintiffs be the lawful trustees or not, a matter which can only be decided in a properly lodged suit, they are, by virtue of and have been ever since their appointment, de facto exercising the functions of trustees and the defendant 1 has no right to exercise them because the plaintiffs have been lawfully appointed in his place and that, therefore, the defendant 1, is to be deprived of his trusteeship and they should be reinstated in his place. In these circumstances, we must hold that the present suit clearly comes within the principle of the ruling we have just referred to.