REPORTABLE

IN THE SUPREME COURT OF INDIA

CIVIL APPELLATE JURISDICTION

CIVIL APPEAL NO. 724 OF 2020 (ARISING OUT OF SLP (CIVIL) NO. 35520 OF 2016)

GHAT TALAB KAULAN WALA .....APPELLANT(S)

VERSUS

BABA GOPAL DASS CHELA SURTI DASS  (DEAD) BY LR RAM NIWAS .....RESPONDENT(S)

J U D G M E N T

HEMANT GUPTA, J.

1. The plaintiff is in appeal aggrieved against an order passed by the

High Court of Punjab and Haryana on 18th July, 2016 whereby the

decree of two courts in its favour were set aside for the reason that

Charan Dass (PW-1) was not competent to file suit as it could not

demonstrate  the  nature  of  charities  which  the  Trust  had

undertaken  and  that  such  suit  is  not  maintainable  without

complying with the requirements of Section 92 of the Code of Civil

Procedure, 19081.  The Court held as under:

“20.  For maintaining the suit qua public Trust, the leave of  the  Court  under  Section  92  CPC  is  mandatory.

1  for short, ‘Code’

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Pleadings of the plaintiff are conspicuously silent about these facts.  Secondly for maintaining the suit, plaintiff has to show that there was a complete dedication of the property in favour of the general public.  There has to be evidence proving beyond pale of doubt that Trust is a public  Trust.   Though  no  instruction  in  writing  is required, to dedicate property for religious or charitable purposes.   Only  a  clear  unequivocal  manifestation of intention to create a Trust and vesting thereof in the donor as a trustee is required.  No such manifestation of intention to create Trust and trustee thereof have come forth on record.”

2. The appellant had filed a suit for mandatory injunction directing the

defendant  Baba  Gopal  Dass  (since  deceased)  to  vacate  the

management of Mandir, building and other property.  The appellant

has  alleged  itself  to  be  the  owner  of  the  suit  property  being

managed by the Manager and Trustees.  The defendant was said to

be a Sevadar.  In the said suit, the stand of the defendant was that

the representatives of the plaintiff Manohar Lal and Charan Dass

were never appointed as Managers or Trustees of the appellant and

they fraudulently got their names entered in the revenue record.

The  stand  of  the  defendant  was  that  he  did  everything  for  the

welfare  of  the  Mandir  and  never  sought  instructions  from  the

plaintiff and they have no right to seek rendition of accounts from

the defendant.  On the pleadings of the parties, the learned trial

court framed the following issues:

“1.   Whether the plaintiff is  entitled to the injunction prayed for? OPP.

2.  Whether the plaintiff is owner of the suit property as alleged in para No. 1 of the plaint? OPP.

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3. Whether the plaintiff have no locus standi to file the suit? OPP.

4. Whether no cause of action has arisen to the plaintiff for filing this suit? OPP.

5. Relief.”

3. On  issue  Nos.  1  and  2,  the  learned  trial  court  held  that  the

defendant is Sevadar of plaintiff Trust and that the plaintiff does not

want  to  keep the defendant  as he is  not  properly  watching the

interest of the Mandir and that he has not rendered the accounts of

the income of the Temple.  The Court also found that the defendant

is not claiming ownership of  the property in question.   The trial

court  considered  the  statement  made  by  the  defendant  in  the

previous suit for permanent injunction filed by the plaintiff on 8 th

April, 1986 restraining the defendant from raising any construction

in the shape of shops on the property in question. The Appellant

examined Harban Singh (PW-3) an Advocate of  the defendant in

the  previous  suit,  that  the  defendant  admitted  that  the  suit

property belongs to the plaintiff and the defendant is working only

as a Sevadar.  The statement (Ex.P/1) reads as under:

“I  have instructions from the defendant  that  the suit property belongs to the trust i.e. the plaintiff, where I am working only as a Sevadar.  Whatever I will do, I will do  for  the  welfare  of  the  trust  and  any  instructions given by the manager of the trust especially in regard to  the  construction  of  the  shops  I  shall  abide  by  in addition to the instructions pertaining to the manner in which  shops  are  to  be  constructed  and  rent  thereof collected.”

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4. After  returning  such  finding,  the  trial  court  declined  to  grant

mandatory injunction to the defendant to vacate the Mandir  but

held the plaintiff was entitled to rendition of accounts.

5. The plaintiff alone filed first appeal aggrieved against the judgment

passed by the learned trial court.  The learned First Appellate Court

relied upon a judgment reported as Bhagwan Dass and others v.

Jairam Dass2,  to hold that the  Sevadar is liable to be removed

where  Sevadar asserts  title  hostile  and  fails  to  keep  regular

accounts.   

6. The defendant filed second appeal before the High Court aggrieved

against the decree passed by the First Appellate Court.  During the

pendency of  the second appeal,  Baba Gopal Dass died and one

Ram Niwas, claiming to be Chela of Baba Gopal Dass was ordered

to  be  impleaded  to  represent  the  estate.   Such  order  was

challenged by the appellant before this Court in Civil Appeal No.

9638  of  2003  wherein  it  was  held  that  Ram  Niwas  had  been

impleaded to represent the defendant but that will not clothe him

to be successor in interest in the property and that the status of

deceased  Baba  Gopal  Dass  as  well  as  Ram  Niwas  have  to  be

independently  considered  as  a  preliminary  issue  in  the  second

appeal.   

7. In second appeal, the first substantial question of law was framed

at  the  time of  admission  of  appeal  whereas  second  substantial

2  AIR 1965 P & H 260

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question of law was framed after the order passed by this Court.

The same are reproduced hereunder:

“1.  Whether the plaintiff Charan Dass could represent the Trust known as Ghat Talab Kaulan Wala which is also known as Prabhu Wala and whether the suit filed by the Charan Dass is maintainable?

2.  Whether status of the deceased Baba Gopal Dass as well  as  that  of  Ram  Niwas,  when  independently considered,  would  make  them  Legal  Representatives when  Gopal  Dass  had  mentioned  himself  to  be ‘Sevadar’  and  Ram  Niwas  as  alleged  Chela  of  Baba Gopal Dass?”

8. In respect of the second substantial question of law, the High Court

held that the defendant was only  a  Sevadar as admitted in  his

statement in the earlier suit and that Ram Niwas was impleaded as

his legal representative. He is only a member of public who could

offer his services in the place of deceased Defendant.  The Court

held as under:

“25.  …However, in case of public Trust every individual has right to serve.  Baba Gopal Dass was also serving in the Mandir irrespective of the Mandir as a public Trust property or private Trust property.  There was nothing to inherit  like  services  rendered  by  Baba  Gopal  Dass. Inheritance of services of Baba Gopal Dass was open to all.  No special status can be conferred upon Ram Niwas so far as inheritance of service/Sevadari is concerned.

26.  In view of aforesaid, any person from public can offer service to Mandir.  Therefore, in view of first part of  the  order  passed by the Hon’ble  Apex Court  Ram Niwas  was  only  impleaded  for  the  purposes  of representation in the present appeal without meaning anything on merits i.e. rights of Baba Gopal Dass viz-a- viz suit property.  The second part of the order in the context of decision on the individual right of Ram Niwas is  concerned,  the  same has  to  be  decided  that  Ram Niwas is none else than any person from public at large,

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who could offer his service in place of Baba Gopal Dass. There are no pleadings, nor any evidence on record to show that Ram Niwas was ever appointed as Chela by Bhek or any other religious ceremonies were performed by  competent  authority  or  by  Sadhu  Samaj  for appointing him in place of Baba Gopal Dass.”

9. Thus,  the  second  substantial  question  of  law  was  decided,  as

mentioned above, that Ram Niwas was impleaded for the purpose

of representation of the deceased in the appeal.  The High Court

found  that  there  was  no  evidence  that  Ram  Niwas  was  ever

appointed by Chela or in any other manner but as any member of

public, he was offering his services to the Temple.

10. While deciding first substantial question of law, the suit was found

to  be  not  maintainable.  Learned  counsel  for  the  appellant

vehemently argued that the High Court erred in law in finding that

the suit is not maintainable in view of Section 92 of the Code as

such provision is meant for invocation of  jurisdiction against the

Trust.  Section 92 of the Code has no applicability in respect of a

suit instituted by a Trust.  It is pointed out that the appellant has

filed  suit  through  the  Manager  and  Trustee  as  a  private  Trust.

However, during the pendency of the proceedings, the Trust has

been registered as a Society on 29th June, 2016 when Memorandum

of Association of Ghat Talab Kaulan Wala Prabhu Lal Wala, Village

Mundi Kharar, Tehsil Kharar, District S.A.S. Nagar was registered.  

11. Learned counsel for the respondent argued that the appeal is filed

by one Devinder Gupta who has no concern with the appellant,

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therefore, appeal itself is filed by incompetent person.  It is also

argued that the appellant has been paid a sum of Rs.1,48,09,884/-

on account of acquisition of part of land whereas the respondent

has apprehension that such amount will be misappropriated by the

appellant.

12. We have heard learned counsel for the parties.  We find that the

order  passed  by  the  High  Court  in  respect  of  first  substantial

question  of  law  is  not  sustainable.   Section  92  of  the  Code

contemplates a suit against a Trust either for removing any trustee;

appointing new trustee; or vesting any property in a trustee etc.

but the present suit itself is by a Trust against a Sevadar, therefore,

the procedure prescribed under Section 92 of the Code would not

be applicable in a suit by a Trust.  Section 92 of the Code confers

right on a person in case of any alleged breach of any express or

constructive trust created for a public purpose of a charitable or

religious nature.  Since the Trust itself was the plaintiff, the finding

of the High Court is clearly erroneous and not sustainable.  The fact

is  that  Baba  Gopal  Dass  has  been  found to  be  Sevadar  as  per

statement  (Ex.P/1)  given  in  the  previous  suit  for  permanent

injunction.  Therefore, Ram Niwas as legal representative of Baba

Gopal Dass will not have a larger interest than what was vested in

the original defendant.   Ram Niwas has been found to be doing

service to the Temple as member of public.  The High Court has

affirmed the finding that Ram Niwas could offer his services but he

has not proved that he was appointed as Chela of Baba Gopal Dass.

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Still further, the decree for rendition of accounts could be executed

only against the deceased Baba Gopal Dass,  therefore,  after his

demise, such decree cannot be executed.   

13. In view thereof, the finding of the High Court on first substantial

question of law is set aside and the suit is found to be maintainable

and was rightly decreed by the First Appellate Court.

14. We find that the apprehension of the respondent that the amount

of compensation can be misused is not tenable.  The appellant is a

registered  Society.   The  appellant  as  a  registered  Society  has

statutory  obligations.  We  find  that  such  apprehension  is

misconceived and beyond the scope of the present suit and the

appeal arising out of such proceedings.  

15. Consequently, the present appeal is allowed.  The order of the High

Court in respect of first substantial question of law is set aside and

the suit is decreed.

.............................................J. (L. NAGESWARA RAO)

.............................................J. (HEMANT GUPTA)

NEW DELHI; JANUARY 31, 2020.

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