GHAT TALAB KAULAN WALA versus BABA GOPAL DASS CHELA SURTI DASS (DEAD) BY LR RAM NIWAS
[2020] 1 S.C.R. 602, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Ratio
A
B
C
D
E
F
G
H
602
SUPREME COURT REPORTS
[2020] 1 S.C.R.
GHAT TALAB KAULAN WALA
v.
BABA GOPAL DASS CHELA SURTI DASS (DEAD) BY LR
RAM NIWAS
(Civil Appeal No. 724 of 2020)
JANUARY 31, 2020
[L. NAGESWARA RAO AND HEMANT GUPTA, JJ.]
Code of Civil Procedure, 1908:
s. 92 – Applicability of – To a suit by a Trust – Suit by Trust
for mandatory injuction – Seeking direction against the defendant
(sevadaar) to leave the management of the Mandir, building and
other properties of the Trust – Trial Court declined to grant
mandatory injuction to the defendant, but held that the plaintiff
was entitled to rendition of accounts – First appellate Court decreed
the suit – During pendency of second appeal, due to death of original
defendant impleadment of his representative – High Court held that
suit was not maintainable as requirements of s. 92 was not complied
with – Appeal to Supreme Court – Held: Section 92 contemplates
suit against a Trust – In the present case, the suit having been filed
by the Trust, the procedure prescribed under Section 92 would not
be applicable – The suit was maintainable and was rightly decreed
by First Appellate Court – Trust and Charities.
Allowing the appeal, the Court
HELD : 1. Section 92 of CPC 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 CPC would not be
applicable in a
suit by a Trust.  Section 92 of CPC 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.  [Para 12]
[608-A-B]
   [2020] 1 S.C.R. 602
602
A
B
C
D
E
F
G
H
603
2. The fact is that the original defendant had been found to
be Sevadar as per statement (Ex.P/1) given in the previous suit
for permanent injunction.  Therefore, legal representative of the
original defendant will not have a larger interest than what was
vested in the original defendant.  The legal representative has
been found to be doing service to the Temple as a member of
public.  The High Court has affirmed the finding that the legal
representative could offer his services but he has not proved
that he was appointed as Chela of the original defendant. Still
further, the decree for rendition of accounts could be executed
only against the deceased original defendant, therefore, after his
demise, such decree cannot be executed.  Therefore, the suit is
maintainable and was rightly decreed by the First Appellate Court.
[Paras 12 & 13] [608-C-D]
3. 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. Such apprehension is misconceived and
beyond the scope of the present suit and the appeal arising out of
such proceedings. [Para 14] [608-E-F]
Bhagwan Dass and Others v. Jairam Dass AIR 1965
P & H 260 – referred to.
Case Law Reference
AIR 1965 P & H 260
referred to
Para 5
CIVIL APPELLATE JURISDICTION : Civil Appeal No. 724 of
2020.
From the Judgment and Order dated 18.07.2016 of the High Court
of Punjab and
Haryana at Chandigarh in Regular Second Appeal No.
2263 of 1997.
V. N. Sinha, Sr. Adv., Puran Mal Saini, Ranbir Singh Yadav, Pati
Raj Yadav, Ritesh Patil, Advs. for the Appellant.
Ashok Sharma Nabhewala, Devender Mohan Verma, Ms.
Minakshi Vij, Advs. for the Respondent.
GHAT TALAB KAULAN WALA v. BABA GOPAL DASS CHELA
SURTI DASS (D) BY LR RAM NIWAS
A
B
C
D
E
F
G
H
604
SUPREME COURT REPORTS
[2020] 1 S.C.R.
The Judgment of the Court was delivered by
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.  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.
1 for short, ‘Code’
A
B
C
D
E
F
G
H
605
2.  Whether the plaintiff is owner of the suit property as alleged in
para No. 1 of the plaint? OPP.
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 8th 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.”
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.
2 AIR 1965 P & H 260
GHAT TALAB KAULAN WALA v. BABA GOPAL DASS CHELA
SURTI DASS (D) BY LR RAM NIWAS [HEMANT GUPTA, J.]
A
B
C
D
E
F
G
H
606
SUPREME COURT REPORTS
[2020] 1 S.C.R.
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
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
A
B
C
D
E
F
G
H
607
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, 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,
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
GHAT TALAB KAULAN WALA v. BABA GOPAL DASS CHELA
SURTI DASS (D) BY LR RAM NIWAS [HEMANT GUPTA, J.]
A
B
C
D
E
F
G
H
608
SUPREME COURT REPORTS
[2020] 1 S.C.R.
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.  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.
Kalpana K. Tripathy
Appeal allowed.