FAO No.1298 of 2009 (O&M) 1 In the High Court for the States of Punjab and Haryana at Chandigarh. Decided on August 06,2010. Harjinder Singh and others --Appellants vs. Harbans Singh and others -- Respondents CORAM: HON'BLE MR.JUSTICE RAKESH KUMAR JAIN Present: Mr.Rajesh Sethi,Advocate, with Mr.Saurabh Goel,Advocate,for the appellants Mr.R.D.Bawa,Advocate,with Mr.B.S,Mittal,Advocate,for the respondents. Rakesh Kumar Jain, J, This appeal is directed against the order of Addl.District Judge, Sirsa, dated 18.8.2008 by which an application seeking leave of the Court to institute a suit under Section 92 of Code of Civil Procedure,1908 (for short,CPC), has been dismissed. Briefly, the case set up by the plaintiffs/appellants is that plaintiff No.4 (Langar Gurudwara Shree Bhaini Sahab, Ludhiana) is a public charitable trust dedicated to general public including “Namdhari FAO No.1298 of 2009 (O&M) 2 Sangat”. Plaintiff No.4 is stated to be a juristic person. The affairs of plaintiff No.4 are managed by defendant No.4 Satguru Shri Jagjit Singh. It wss alleged that Satguru Shri Ram Singh was the founder of 'Langar Gurdwara Shri Bhaini Sahab' which was set up in the year 1858. Thereafter, it is managed by Satguru Shri Hari Singh, brother of Satguru Shri Ram Singh. After the demise of Satguru Shri Hari Singh, his son Shri Ram Partap became the Manager of this trust and after his demise in the year 1959, this trust is being managed by Satguru Shri Jagjit Singh Ji (defendant No.4). Plaintiff No.4 owns and possess moveable and immoveable properties through out the country including the land measuring 974 kanals 13 marlas in village Sri Jiwan Nagar. Case set up by the plaintiffs is that defendant No.4. executed a general power of attorney dated 23.7.2002 in favour of defendant No.3. Harmeet Singh, who exchanged the land measuring 31 kanals 11 marlas with land measuring 39 kanal 12 marlas of defendant No.1 Harbans Singh vide exchange deed dated 16.3.2005. Mutation No. 5208 of the exchange was entered on 23.5.2005 and was sanctioned on 31.5.2005. Land measuring 9 kanals 7 marlas comprised in Rect. No.400 killa No.4 was sold by defendant No.1 in favour of defendant No.5. through registered sale deed dated 07.6.2005. Mutation No.5226 in respect of the said sale deed dated 7.6.2005 was entered on 16.6.2005 and was sanctioned on 22.6.2005. On the same day, land measuring 8 kanals comprised in Rect. No. 393 killa No.5 was sold by defendant No.1 in favour of defendant No.6. Mutation No.5224 was sanctioned on the basis of registered sale deed dated 22.6.2005. The plaintiffs, who claim themselves to be followers of' 'Namdhari Panth' and also beneficiaries of the Langer alleged themselves FAO No.1298 of 2009 (O&M) 3 to be interested in the proper management and safeguarding the properties of plaintiff No.4. including the suit land. They have thus challenged the legality of registered exchange deed dated 16.3.2005 and also of sale deed dated 7.6.2005. They also sought issuance of permanent injunction to restrain the defendants from changing the nature of the total land in general and suit land in particular by raising any construction. In reply, it was alleged that exchange was an act of better management of the properties of the trust because the trust had received land measuring 39 kanals 13 marlas in exchange of land measuring 31 kanals 11 marlas. After exchange dated 16.3.2005, the trust was no more owner of the land measuring 9 kanals 7 marlas and 8 kanals which was sold by two sale deeds dated 7.6.2005. Therefore, no fault could be attributed to those sale deeds. Learned trial Court while dismissing the application observed that defendant No.4. is the Manager of the trust, who had exchanged certain lands with defendant No.1. probably for better management of the trust properties and had sold the land which was received in exchange. Therefore, there was nothing to suspect that properties of the trust were being mismanaged or being dealt with in a manner adverse to the interest of the trust. It was also held that a suit would be maintainable if it touches any of the matters enlisted under Section 92 (1) of the CPC. It was also held that even if vide order dated 19.4.2004, Sh.R.S.Bagri, the then Addl.District Judge, Sirsa, was looking into a similar application, but he had not dealtwith the application on merit as to “whether suit under Section of 92 CPC was maintainable”?. Learned counsel for the appellants has,inter-alia, contended FAO No.1298 of 2009 (O&M) 4 that various other alienation and even execution of power of attorney by defendant No.4.were subject matter of adjudication in various suits. The alienation of the trust properties was challenged and in judgment and decree passed in Civil Suit No.98/314-T of 1978 dated 10.4.1981, it was held that defendant No.4. had no power to alienate the property of the trust. The judgment and decree of the trial Court was affirmed by the first Appellate Court. Learned counsel for the appellants has further referred to the following averments made in theplaint in para Nos.18 and 19 in this regard:- “18.That in some what similar circumstances Langar Satguru Ram Singhji Gurdawara Shree Bhaini Sahab acting through (i) Sewa Singh, (ii) Balwant Singh, (iii) Baldev Singh (iv) Banta Singh and (v) Santa Singh preferred a civil suit No. 98/314-T dated 17.7.1978/6.2.1978 in the court of Shri G.C.Bedi, PCS, Sub Judge Ist Class, Bassi Pathana against Balbir Singh & four others including Satguru Shri Jagjit Singh ji and in that civil suit the collusive decrees dated 18.10.1977 concerning the Trust-Langar Satguru Ram Singh ji Gurdawara Shree Bhaini Sahab suffered by Satguru Shree Jagjit Singh ji in the capacity of Manager/ Ehtmaam of said plaintiffs-Langar Satguru Ram Singh ji in favour of few persons FAO No.1298 of 2009 (O&M) 5 were challenged and said civil suit was hotly contested between the parties and ultimately it was held by learned Sub Judge Ist Class while deciding that suit that Manager of religious and charitable endowment can not alienate the property to the disadvantage of the endowment and thus while repelling all pleas taken by the defendants including Satguru Shree Jagjit Singh ji, the civil suit referred above was decreed on 14.4.1981. 19. That feeling not satisfied by the judgment and decree dated 14.4.1981 passed in civil suit No. 98/314-T dated 17.7.1978/6.2.1978 by the court of Shri G.C.Bedi, PCS, Sub Judge Ist Class, Bassi Pathana and appeal No. 260 of 1981 was preferred by S/Shri Balbir Singh and others in the Court of Shri R.L.Anand, the then Additional District Judge, Patiala and their such appeal No. 260 of 1981 was also dismissed with costs on 8.11.1982. In this manner it was categorically held and affirmed by the Law Courts that the Manager of a Trust cannot alienate the properties belonging to the Trust and thus the collusive decrees having been suffered FAO No.1298 of 2009 (O&M) 6 by Satguru Jagjit Singhji in favour of Balbir Singh and others in respect of the properties/lands belonging to Langer Satguru Ram Singh ji Gurdwara Shree Bhaini Sahib were held to be nullity and void from their inception and decree for possession was passed in favour of aforesaid Trust. The plaintiffs are not aware of any further appeal or remedy perused by the judgment debtors of civil suits referred above and thus the present defendant No.5 i.e. Satguru Jagjit Singhji who was a party in that litigation can certainly throw light upon the same including as to what transpired thereafter. Learned counsel has also referred to Suit No.3 of 2004 in which following order was passed on 19.4.2004:- “After having heard both the sides at length, going through the case file carefully, prima facie it reveals that the Gurdwara was owner in possession of the suit land and Satguru Jagjit Singh defendant No.5 is Ehtamaam (Manager) of the Gurdwara who through defendant No.6 as GPA sold the suit land to defendants No. 1 to 4. Gurudwara is a public trust and FAO No.1298 of 2009 (O&M) 7 defendant No. 5 Satguru Jagjit Singh had no right, title or authority to alienate or transfer the land of the Gurudwara. The plaintiffs being followers of the Gurudwara have interest in the suit land. Hence, they have a right to challenge the impugned sale deeds and get possession of the suit land. Therefore, they are allowed to file the present suit under Section 92 of the CPC. Let notice to all concerned be issued through Munadi for 3.6.2004 on filing of PF and copies etc.” “These findings remained unchallenged at the hands of the Manager/defendant No. 4- (Satguru Jagjit Singh Ji). Ultimately, the said suit was settled as the properties sought to be alienated were re-transferred in the name of Trust and ownership and possession of the Trust was restored. Before the final adjudication of the matter, the plea raised by the appellants in para 10&11 has also remained uncontroverted. The relevant portion of para 10 & 11 of the plaint are reproduced hereunder to facilitate ready reference:- (10)That in this manner the present plaintiffs No. 2 & 3 acting on behalf of FAO No.1298 of 2009 (O&M) 8 Langar Gurdwara Sri Bhaini Sahib Ludhiana preferred a civil suit no. 3 of 2004 in the court of District Judge, Sirsa which was assigned to the Court of Shri R.S.Bagri, Ld. Addl. District Judge, Sirsa and vide order dated 19.4.2004 passed in the course of Civil Suit No.3 of 2004 leave was granted to the present plaintiffs no. 2 and 3 to file the suit under Section 92 of CPC. (11)That the defendants as arrayed in civil suit no. 3 of 2004, after initially contesting the claim of the plaintiffs later on agreed in principle to re-transfer the land measuring 7 kanals 13 marlas forming subject matter of civil suit no. 3 of 2004 in the name of Langar Gurdwara. On 25.9.2004, it was there was talk of compromise between the parties to civil suit No. 3 of 2004 and thus the matter was listed before the Lok Adalat going to be held on 30.10.2004. Before that on 29.9.2004 the land measuring 7 Kanals 13 marlas forming subject matter of civil suit no. 3 of 2004 was re-transferred in the name of Langar Gurdwara Sri Bhaini Saheb and a gift FAO No.1298 of 2009 (O&M) 9 deed bearing no. 2605 dated 29.9.2004 came into being which was also registered in the office of Sub-Registrar Rania on 29.9.2004 itself. In pursuant to this gift deed no. 2605 dated 29.9.2005 a mutation no. 5178 was also entered and sanctioned in favour of plaintiff no.4 i.e. Langar Gurudwara Sri Bhaini Saheb. Although the mode of recognizing the ownership and possessions of present plaintiff no. 4 over the land measuring 7 kanals 13 marlas vide gift deed was irregular but the some and substance was that the present plaintiff no. 4 over the land measuring 7 kanals 13 marlas vide gift deed was iregular but the some and substance was that the present plaintiff no. 4 was acknowledged to be the owner and in possession of its land measuring 7 kanals 13 Marlas regarding which there was dispute in civil suit No. 3 of 2004. The written statement to the aforementioned plea is set out as under:- (10) That para no. 10 of the plaint is a matter of judicial records of the court of Shri R.S.Bagri, Additional District Judge, FAO No.1298 of 2009 (O&M) 10 Sirsa and the order dated 19.4.2004 passed by the Court in Civil Suit No. 3 of 2004 was entirely on different facts and circumstances, as explained in para No.8 above. Moreover, order dated 19.4.2004, passed by the Court of Shri R.S.Bagri, Additional District Judge, Sirsa, is not a binding precedent for this Hon'ble Court. (11) That contents of para No. 11 of the plaint are again a matter of judicial record of the court of Shri R.S.Bagri, Additional District Judge, Sirsa in civil suit No. 3 of 2004. The facts and circumstances of which are clearly distinguishable and not available to the plaintiffs no.1 to 3 for the purpose of present plaint/suit. As submitted and admitted in para no.8 above that in order to buy peace and in order to lend quietus to controversy in that suit, the vendees retransferred the area purchased by them in the name of Langar Gurdwara Shri Bhaini Sabah, Ludhinana and the suit was dismissed as withdrawn and was not decided on merits on 30.10.2004. So the contents as stated are incorrect and hence denied. Thus, it got settled between the parties that defendant No.4. FAO No.1298 of 2009 (O&M) 11 Satguru Jagjit Singh Ji has no power to alienat the property of the Trust” In reply, learned counsel for the respondents has basically argued that the plaintiffs have no locus standi to file the present suit. He has submitted that even if it is presumed that the plaintiffs are worshippers even then the suit cannot be maintained at the instance of the plaintiffs as they do not fall in the category of “Interested persons”. In this regard, he has relied upon judgments of this Court reported as Dr.Ram Parkash Vs. Dayal Chand and others, 1985 HRR 122; Om alias Om Gir minor through Pritam Singh of Jind Vs. Amar Singh and others 1986 HRR 461 and Neeraj Saini Vs. Usha Goel 1999 (1) RCR (Civil) 676. On the other hand, learned counsel for the appellants has argued that it is categorically pleaded in para 5 of the plaint that “plaintiff Nos.1 to 3 are the followers of Namdhari Panth and thus they are also beneficiaries of the Langar and are interested in the management as well as in safe guarding the properties and proprietory rights of the plaintiff No.4 including the suit land. The plaintiff Nos. 1 to 3 do not claim any interest adverse to the interests of plaintiff No.4 and in-fact the present suit is being instituted by plaintiff Nos. 1 to 3 with the view of protecting the properties of plaintiff No.4 and also to safe guard its interest in the interest of 'Namdhari Panth' as well as public as a whole. The plaintiff No.4. was created for public purposes of charitable and religious nature and the same is also recognised as such and the object of this endowment has always been recognisd as pious in nature and it has also been performing religious and charitable duties. The plaintiff Nos. 1 to 3 who are Namdhari Sikhs and are followers of Namdhari Panth of which defendant No.4. Satguru Jagjit Singh is the “Guru”. Being the followers of Namdhari FAO No.1298 of 2009 (O&M) 12 Panth the plaintiff Nos. 1 to 3 are the beneficiaries of Langar and they alongwith other Namdhari Sikhs go to Shree Bhaini Sahab which is one of the places of “Pilgrimage” for the followers of Namdhari Panth and they also contribute in the Langar fund, eat langar and stay there in the night. It is also worthwhile to mention here that Langar is run day and night by plaintiff No.4 at Shree Bhaini Sahab and food is served free of costs to the visitors including needy and poor persons. Apart from Namdhari Sikhs the persons belonging to other sects and also belonging to different religions keep on visiting plaintiff No.4 who too are also welcomed and are served food free of costs and even the suitable arrangements for the stay etc. of such persons visiting langar are also undertaken there”. Learned counsel for the respondents has submitted that in view of the fact that the plaintiffs/appellants are the followers of Namdhari Panth, beneficiaries and contributors of Langar are the interested persons who could maintain the present suit under Section 92 of CPC. In this regard, he has relied upon T.R.Ramachandra Iyer and another Vs. P.A.Parameswaran Munbu and others A.I.R. 1919 Madras 384; A.V.M.Ramaswami Chet tiar Vs.V.M.Muthukarappan Chettiar and others 1925 Madras 1011; Sahdeo Dass Vs. Raja Ram and others A.I.R. 1932 Allahabad 708; Mangi Lal Vs.Smt.Durga Devi and others AIR 1968 Rajasthan 314; Kumudavalli and another Vs. P.N. Purushotham AIR 1978 Madras 206 and R.Venugopala Naidu and others Vs.Venkatarayulu Naidu Charities and others 1989 Supp (2) Supreme Court Cases 356 . I have heard both the learned counsel for the parties and perused the record with their assistance. FAO No.1298 of 2009 (O&M) 13 Before adverting to the rival contentions of the learned counsel for the parties, it would be relevant to refer to Section 92 of CPC which is as under:- “Public charities.- (1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate General, or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate General, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree- (a) removing any trustee; (b) appointing a new trustee; (c)vesting any property in a trustee; [(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property;] (d) directing accounts and inquiries; (e) declaring what proportion of the trust-property or of the interest therein shall be allocated to any particular object of the trust; (f) authorizing the whole or any part of the trust- property to be let, sold, mortgaged or exchanged; (g) settling a scheme; or (h) granting such further or other relief as the nature of the case may require. (2) Save as provided by the Religious Endowments Act, 1863, (20 of 1863).{Ins.by Act 2 of 1951, s.13.} [or by any corresponding law in force in a Part B States] the territories which,immediatley,before the Ist November,1956 were comprised on Part-B State), no suit claiming any of the relief's specified in sub-section (1) shall be instituted in respect of any such trust as FAO No.1298 of 2009 (O&M) 14 is therein referred to except in conformity with the provisions of that sub-section. (3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy pres in one or more of the following circumstances, namely:- (a) where the original purposes of the trust, in whole or in part,- (i) have been, as far as may be, fulfilled; or (ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or (b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or (c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or (d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or (e) where the original purposes, in whole or in part, have, since they were laid down,- (i) been adequately provided for by other means, or (ii) ceased, as being useless or harmful to the community, or (iii) ceased to be, in law, charitable, or (iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.]” According to the aforesaid provisions, application under Section 92 of CPC can be filed in respect of a trust created for public purpose of a chartiable or religious nature, the Advocate General of the FAO No.1298 of 2009 (O&M) 15 State or two or more persons having an interest in the trust, may obtain leave of the Court for filing a suit for the purpose mentioned in clause (a) to (h) of Section 92 (1) of CPC. In the present case, suit has been filed under Section 92 (1) (d) and (f) of CPC for the purpose of inquiry,account and qua sale and exchange of the property of the trust. In this case, various pleas have been taken by the plaintiff/appellant about mis-management of the trust including sale of property of the trust which has been effected by a private negotiations, whereas in the case of R.Venugopala Naidu and others (Supra), the Supreme Court has held that the property of religious and charitable endowments or institutions must be jealously protected because large segment of the community has beneficial interest therein. Sale by private negotiations which is not visible to the public eye and may even give rise to public suspicion should not, therefore, be permitted unless there are special reasons to justify the same. Care must be taken to fix the reserve price after ascertaining the market value for safeguarding the interest of the endowment. Thus, the question is as to whether exchange of property of trust at the instance of the manager of the trust is beneficial or had caused loss, is a pure question of fact which can be determined only after permission is granted to the plaintiff to sue. The plaintiffs/appellants have also quoted instances of earlier litigation which has been mentioned in para Nos. 18 and 19 of the plaint and have remained uncontroverted. Now referring to the objection raised by the respondents about the locus standi of the appellants. They have relied upon a decision of this Court in the case of Dr.Ram Parkash (Supra) which was a case of a FAO No.1298 of 2009 (O&M) 16 Trust known as 'Dharamshala Baba Sunder Dass Pull Telian, Hisar', regarding which the Court has held that there is no material on record to show that the trust in question was of the type and nature which could attract the provisions of Section 92 of CPC and also that a mere resident of the locality or a person belonging to the same religion cannot maintain the suit. In the case of Om Gir (Supra), suit was filed on the ground that the respondent was a mohtmin of the dera and that the decree obtained by him for performing the rights of mohtmin, was illegal. No further facts are given in this judgment, but it was held that on the basis of decision of this Court in Dr.Ram Parkash case (Supra) that the application filed by the appellant does not conform to the provisions of Section 92 of CPC. The third case cited by learned counsel for the respondents, namely, Neeraj Saini (Supra), is with regard to Rai Bahadur Makhan Lal Dharamshala. The interest shown by the appellant/plaintiff was being members of the general public who used to stay in the said Dharamshala of and on. It was found that the applicants in that case were residents of Delhi, who claim to stay in the said Dharamshala whenever they visited Rewari. This was not found to be a case of interested party. Thus, the judgment relied upon by the learned counsel for the respondents are not at all applicable to the facts and circumstances of the present case in which the plaintiffs have categorically alleged that they belong to Namdhari Panth. They go on pilgrimage to Gurudwara Shri Bhaini Sahab. They participate in Langar and contribute as well. Moreover, Langar Gurudwara Shree