R.S.A.No. 3598 of 1998 1 In the High Court of Punjab and Haryana at Chandigarh R.S.A.No. 3598 of 1998 Date of decision: 23.7. 2009 Bhupinder Singh ......Appellant Versus Joginder Singh and others .......Respondents CORAM: HON'BLE MRS. JUSTICE SABINA Present: Mr.R.S.Longia Advocate, for the appellant. Mr.B.S.Guliani, Advocate, for the respondents. **** SABINA, J. Plaintiffs Joginder Singh and others filed a suit for settling a scheme under Section 92 of the Code of Civil Procedure ('CPC' for short) for the administration of trust property. The suit of the plaintiffs was decreed by the Sub Judge (Ist Class) Ambala vide judgment and decree dated 12.5.1993. In appeal, the said judgment and decree were upheld by the Additional District Judge, Ambala vide judgment R.S.A.No. 3598 of 1998 2 and decree dated 2.6.1998. Hence, the present appeal by the defendant. Brief facts of the case, as noticed by the lower appellate Court in para Nos. 2 to 5 its judgment, are as under:- “2. Joginder Singh etc. plaintiffs-respondent No.1 to 4 filed a suit for settling a scheme under Section 92 of the C.P.C. For the administration of the trust property attached with Gurudwara in village Pilkhani tehsil and District Ambala. It was alleged by the plaintiffs that there was only one public Gurudwara in village Pilkhani and public had access to that Gurudwara without any sort of restraint and about 113 kanals 15 marlas of agricultural land as described in the heading of the plaint was donated by the people of the village. The income of the land was to be spent for administration of the Gurudwara in question, for performance of religious festivals, for distribution of free langer and for performing other religious duties and for keeping the Gurudwara building in good condition. It was further contended that there was one Mohtmim who died in the year 1976. After his death some people began to interfere with the property of Gurudwara. It was further contended that there was a registered committee for the management of the said Gurudwara and plaintiff No.1 was its President, the R.S.A.No. 3598 of 1998 3 plaintiff No.2 was honorary Secretary and plaintiffs No.3 and 4 were its members. It was alleged that when after the death of Tarlok Singh Mohtmim some people began to interfere with the agricultural land attached with the Gurudwara, the plaintiffs made an application under Section 145 CR.P.C. against Bhupinder Singh appellant. The executive Magistrate attached the property and appointed the Tehsildar as its receiver. Since then the property was being managed by the receiver. It was alleged that the registered committee had been managing the affairs of the Gurudwara, but in order to regularise the appointment and for setting the controversy at rest, it was prayed that the court may appoint on settling a scheme the office bearers of the said society as trustees. The suit was filed by the plaintiffs only against the General public. 3. Notice of the suit was given on the general public through publication for 28.7.1983 but none appeared to contest the claim of the plaintiffs. The general public was proceeded ex parte. After recording ex parte evidence Sh.S.K.Gupta, the then Sub Judge 3rd Class, Ambala City, decreed the suit in favour of the plaintiffs vide judgment and decree dated 25.5.1985. 4. Bhupinder Singh appellant filed an application for setting aside the ex parte judgment and decree R.S.A.No. 3598 of 1998 4 dated 25.5.85 and also made a prayer that he be arrayed as defendant in the case. Bhupinder Singh was allowed to contest the suit by the trial Court. 5. Bhupinder Singh filed a written statement controverting the allegations in the plaint. It was averred that the suit of the plaintiffs was barred by res judicata. It was also contended that the plaintiffs were estopped by their act and conduct to file the suit. It was denied that the Gurudwara in question was public Gurudwara. It was further stated that the father of defendant No.2-appellant was Mohtmim of the Gurudwara in question and prior to his father, his grand father was Mohtmim of the Gurudwara. It was averred that the Gurudwara in question was purely private property of the appellant and his fore-fathers and ancestors of the appellant had built the Gurudwara in question more than 70 years ago which was built on the land belonging to the ancestors of the appellant. It was further stated that the Gurudwara in question was never constructed with the donation of the people of the village. It was stated that as per Will dated 18.9.1970 executed by the father of the defendantNo.2, defendant No.2 had become Mohtmim of the Gurudwara. It was stated that Gurudwara was owner of the land in R.S.A.No. 3598 of 1998 5 question and defendant No.2 was in possession of the same as Mohtmim of the Gurudwara. It was stated that the Committee set up by the plaintiffs, if any, was false just to grab the private property of the Gurudwara. It was contended that the so called committee was a bogus committee and had no existence in the eyes of law. It was admitted that the property was attached under Section 145 Cr.P.C. and the income of the agricultural land was being received b y the Receiver.” On the pleadings of the parties, following issues were framed by the trial Court:- “1. Whether the Gurudwara in question is a public Gurudwara? If so, to what effect? OPP 2. If issue No.1 is proved, then whether the Registered Committee is legally constituted? If so, to what effect? OPP 3. Whether the suit of the plaintiffs operates as res judicata as the previously instituted suit on the same cause of action against the father of the defendant Bhupinder Singh was dismissed on 31.3.1976? OPD 4. Whether the plaintiffs are estopped to file the present suit by their own act and conduct? OPD 5. Whether the suit of the plaintiffs is false and frivolous and is liable to be dismissed? OPD R.S.A.No. 3598 of 1998 6 6. Whether the defendant Bhupinder Singh is the Mohatmim of the Gurudwara after the death of his father? If so, to what effect? OPD 7. Whether the Gurudwara in question was constructed with the donation of the public at large? If so, to what effect? OPD 8. Relief. ” Learned counsel for the appellant has submitted that the suit of the plaintiffs was liable to be dismissed as the application under Section 92 CPC has not been decided/allowed by the trial Court. The leave under Section 92 CPC was mandatory and without the said leave the Courts below could not proceed with the suit any further. On merits, learned counsel has submitted that the defendant -appellant was owner in possession of the property in dispute and hence, the Courts below had erred in framing a scheme under Section 92 (1) (g) CPC. Learned counsel for the respondents, on the other hand, has submitted that the plaintiffs had moved an application under Section 92 CPC. Notice was also issued to the general public but nobody appeared on behalf of the defendant and the suit of the plaintiffs was decreed in ex parte. At the instance of appellant Bhupinder Singh the said ex parte judgment and decree dated 28.7.1983 were set aside and the appellant had been allowed to contest the suit on merits. No prejudice had been suffered by the R.S.A.No. 3598 of 1998 7 appellant and impliedly the Court had granted leave to the plaintiffs under Section 92 CPC. After hearing learned counsel for the parties, I am of the opinion that the present appeal deserves to be dismissed. There is no dispute regarding legal proposition that in order to file a suit against trust, leave of the Court is mandatory to proceed further with the suit. Learned counsel for the appellant has placed reliance on a decision of this Court in Sushil Kumar Bansal and others v. Surinder Pal Sharma and others 2007 (1) RCR (Civil) 167, wherein it was held that in the absence of specific order of leave of the Court, all proceedings taken in such a suit will be without jurisdiction. However, the facts of the said case were different. In the present case, the plaintiffs filed a suit along with an application under Section 92 CPC seeking leave of the Court to institute the suit. Notice was issued to general public through publication but none appeared on its behalf. The suit of the plaintiffs was decreed in ex parte vide judgment and decree dated 28.7.1983. Thereafter, on an application moved by the present appellant, the said ex parte judgment and decree were set aside and the appellant was allowed to contest the suit. In the peculiar facts and circumstances of the present case, where the general public was ex parte, learned District Judge rightly came to the conclusion that impliedly leave had been granted to the plaintiffs to institute the suit. R.S.A.No. 3598 of 1998 8 The suit in question was instituted on 9.12.1980 and the plaintiffs are litigating since then. In these circumstances, it would not be in the interest of justice to remand the case as submitted by the learned counsel for the appellant for a fresh decision. The parties have led their respective evidence in support of their case and the suit as well as the appeal have been decided on merits. Moreover, when the appellant moved an application for setting aside the ex parte judgment and decree, he did not raise any objection in his written statement that leave of the Court under Section 92 CPC had not been obtained. Hence, at this stage the setting aside of the judgments and decrees of the Courts below would not advance the cause of justice. Ex.D-2 is a copy of the judgment passed in civil suit No.231 of 1972 which was instituted by Ganga Singh, Rajinder Singh and Santokh Singh against Tarlok Singh (father of the appellant). A perusal of the judgment Ex.D-2 reveals that, while deciding issue No.1, it was held that the Gurudwara in question had been constructed with donations of the villagers. While deciding issue No.2, it was held that Tarlok Singh had admitted, while appearing in the witness box, that the land attached to the Gurudwara had been donated by the villagers. It was also held, while deciding issue No.4, that Tarlok Singh had failed to maintain accounts of the Gurudwara and could be removed from the Mohatmimship of the Gurudwara. It was further held, while deciding R.S.A.No. 3598 of 1998 9 issue No.5, that the Gurudwara in question was being used by public at large and hence, was a public Gurudwara. The suit was dismissed on the technical ground that no valid sanction had been obtained by the plaintiffs under Section 92 read with Section 93 CPC before filing the suit. Hence, the said judgment rather advances the case of the plaintiffs than the appellant/defendant. Since the suit was dismissed on technical grounds and hence, the present suit cannot be said to be barred by principle of res judicata. The plaintiffs in support of their case examined PW-1 Joginder Singh (plaintiff No.1), PW-2 Ganga Singh (plaintiff No.2), PW-3 Niranjan Singh, PW-4 Santokh Singh and PW-5 Surjan Singh. The said witnesses deposed that the Gurudwara belonged to residents of the village and the land attached to the Gurudwara had been donated by the villagers. DW-1 Balbir Singh admitted that Bhupinder Singh as well as his fore-fathers were only appointed as Mohtmim of the Gurudwara. He also admitted that 14 kanals of the land adjoining the Gurudwara was donated by the villagers and general public visited the Gurudwara in question. All religious festivals and ceremonies were being performed in the Gurudwara. The income of the Gurudwara was being collected by the appellant. The appellant, when he appeared in the witness box as DW-4, deposed that earlier his father Tarlok Singh was Mohtmim of the Gurudwara. About 13-14 killas of land adjoined the Gurudwara. His father used to cultivate the same. In his cross-examination, he R.S.A.No. 3598 of 1998 10 deposed that his father was maintaining record regarding the income and expenditure of the Gurudwara but the same was not available with him. He also admitted that religious festivals were being celebrated in the Gurudwara. He was utilising every day's offerings of the Gurudwara but no accounts were maintained regarding the same. As per Ex.D-5 in the revenue record, the disputed land is described to be owned by Gurudwara Sahib through Bhupinder Singh. In these circumstances, the Courts below had rightly held that the Gurudwara in question was being used by the public at large. The offerings from general public were being used by the appellant but he had failed to maintain any accounts regarding the same. The land attached to the Gurudwara was donated by the villagers. The appellant had, thus,only the right to maintain the property but since he had failed to maintain any accounts, the learned trial Court rightly framed a scheme for the proper management of the Gurudwara. Hence, the impugned judgments and decrees of the Courts below do not call for any interference. No substantial question of law arises in this regular second appeal. Accordingly, the same is dismissed. (SABINA) JUDGE July 23, 2009 anita