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Petitioner: MUHAMMAD SIDDIQUE VS Respondent: BHUPENDRA NARAYAN ROY CHOWDHURY
P L D 1962 Dacca 643
P L D 1962 Dacca 643
Before Chowdhury C. J. and M. R. Khan, J
MUHAMMAD SIDDIQUE‑Appellant
Versus
BHUPENDRA NARAYAN ROY CHOWDHURY AND OTHERS‑Respondents
Second Appeal No. 494 of 1957, decided on 25th January 1961.
(a) Civil Procedure Code (V of 1908), O., VIII, r. 1‑Written statement‑Cannot be an exhibit if defendant dies without being examined.
(b) Civil Procedure Code (V of 1908), S. 92‑Suit to establish right of a temple to property in hands of strangers or alienees from temple authorities‑Section not applicable. Kalyana Venkataramana Ayyangar and another v. Kasturiranga
Ayyangar I L R 40 Mad. 212 fol.
(c) Civil Procedure Code (V of 1908), S. 92 (1), cl. (h) & cls. (a) to (g)‑Clause (h) must be read along with clauses (a) to (g) and not separately.
(d) Civil Procedure Code (V of 1908), S. 92 (2)‑Does not mean that all suits for breach of trust must be instituted in conformity with S. 92.
(e) Specific Relief Act (I of 1877), S. 42‑Plaintiff not admitting defendants possession or his right to possess‑S. 42 not attracted‑Scope of suit to be determined with reference to allega tions" in plaint and not written statement.
Azizul Islam for Appellant.
D. C. Bhattacharyya for Respondents.
JUDGMENT
CHOWDHURY, C. J.‑This appeal is by defendant No. 2. It arises out of a suit filed by the plaintiffs on their own behalf as well as In their representative character under Order I, rule 8 of the Code of Civil Procedure for a permanent injunction restrain ing defendants Nos. I and 2 from erecting any but or structure on the disputes land which is said to be the property belonging to a Hindu religious trust.
2. Plaintiffs' case, shortly stated, is as follows: ‑
The land described in the schedule of the plaint was made a gift of by one Hemendra Narayan Roy Chowdhury of Pirgacha for the purpose of establishing a Dharma‑sava in favour of one Ashutosh Lahiri. who erected buildings and procured all other materials for the purpose by local subscriptions and made a trust of the entire property relinquishing his own interest by a deed of trust in which Jadaveswar Tarkaratna, Raja Janaki Ballav Sen and Armada Prosad Sen were the first trustees. They got possession of the properties and acquired the right as trustees on the basis of the trust deed. Under the rules framed in terms of the trust deed an executive committee was elected and Babu Dina Taran Lahiri was elected Secretary of the committee. In course of time, on account of the non‑existence of those three trustees Bhawani Prosad Lahiri, Ram Prosad Sen and plaintiff No. 1 Bhupendra Marian Chowdhury became trustees, of whom the former two trustees are not in existence and the secretary Dina Taran Lahiri migrated to India by exchanging his property here in Pakistan with those at Hindusthan. As he was not returning to his duties some undesirable people entered into the compound of the Dharma‑sava anti were using the veranda and the courtyard filthily. Defendant No. 1 Abani Nath Pandit (since dead) a relation of Dina Taran Lahiri, who was left with the manage ment of Rangpur Bank owned and managed by Dintaran Lahiri and his co‑sharers, somehow or other got possession of the documents of the Dharma‑sava from his relation Dina Taran Lahiri and illegally assumed the charge of Secretary by manipu lating fictitious committee in a fictitious meeting. Subsequently the said Abaninath, defendant No. 1, in collusion with defen dant No. 2, while making arrangement for constructing a structure in a portion of the Dharma‑sava compound, the Hindus of the locality came to know that Abani Babu was allowing defendant No. .2 to construct structure, they assembled in the Dharma‑sava building on 7‑11‑52 and decided to stop it and in formed the surviving trustee to elect an executive committee. Accordingly a managing committee was reconstituted in a meeting held on 9‑11‑52 when they came to know that Dina Taran Lahiri retired from the secretariship. They further came to know that the said Dina Taran Lahiri managed to nominate, out of some Hindus of the locality who were not even members of the said Dharma‑sava, 15 members to the executive committee of which Abani Babu became the Secretary. He, thereafter, it appears now, called several meetings of the committee in his house " Tarak‑Bhaban " behind the back of the real members of the Dharma‑sava. In the morning of 8‑11‑52 the defendants began to dig earth within the Dharma‑sava compound on both sides of the gate for construction for the use of defendant No. 2 on the basis of some alleged settlement from the said Abaiti Nath Pandit, the defendant No. 1. Plaintiffs Nos. 2 and 3 protested and plaintiff No. 2 informed the police and obtained an injunction against the defendants 'by filing a petition under section 144 of the Code of Criminal Procedure. Thereafter they filed the present suit alleging that Abani Nath Pandit was never a Secretary and had no right, title and possession in the properties of the Dharma‑sava and consequently had no right to make any settle ment with defendant No. 2 with regard to any portion of the Dharma‑sava premises against the interest of the Hindus and the Dharma‑sava and, in fact, no settlement has been made and that what they were trying to do, was in collusion with each other to the detriment of the trust. Therefore, the plaintiffs in the present suit prayed for a permanent injunction restraining the defendants from erecting or constructing any but or structure on any portion of the disputed land which is a religious trust land.
3. The suit was contested by both the defendants by filing two separate written statements though defendant No. 1 died subsequently. Both the written statements are in the same line. The case of the contesting defendants is that in the meeting of the executive committee there was a proposal for allowing con struction of shop‑houses on the road‑side land of the Dharma sava trust property for the purpose of increasing the income and it was decided that it would be done by auction and whoever would pay highest amount would he allowed to construct but to be occupied by him as a tenant and the cost of construction to be repaid out of the rent of that shop-house with a right of renewal. In pursuance of that agreement defendant No. 2 offered Rs. 6,000 to be invested in the construction of the shop houses on the disputed land along the road‑side and therefore, he has acquired a valid title. The defendant also pleaded defect of parties, bar of section 42 of the Specific Relief Act and of section 92 of the Code of Civil Procedure and also pleaded that the plaintiffs had no locus standi to file the suit. But the defendants never disputed the trust character of the disputed property nor denied that the properties appertain to the religious trust but asserted that Abani Nath Pandit was the duly elected Secretary by the properly constituted committee.
4. After filing the suit the plaintiffs also filed an applica tion for temporary injunction during the pendency of the suit. This application for injunction has got a chequered career and we think it necessary for this appeal to state the various stages through which this application had to travel.
The trial Court issued a show‑cause notice with an order of ad interim injunction. Cause was shown and it allowed the injunction against the defendant No. 2 but vacated the order of ad‑interim injunction against defendant No. 1. There was an appeal by the plaintiffs against the order vacating the ad‑interim injunction order against defendant No. 1 and also a cross‑objection by defendant No. 2 against the order of injunction passed against him. The lower appellate Court in that injunction matter thought that it was necessary to decide about the existence of a prima facie case, and therefore, vacated the order of injunction even against defendant No 2 and set the case back on remand to the trial Court. The trial Court returned the plaint to the plaintiffs for presentation in a proper
Court as it thought that the suit was hit by the provision of section 92 of the Code of Civil Procedure. Against that order there was an appeal. In the appellate Court the plaintiff‑appellants also filed an application for temporary injunction restraining the defendant from erecting any but on the disputed land. In the meantime; as it appears, the defendant constructed a hut. The plaintiffs brought it to the notice of the lower appellate Court at the time of moving for an injunction and also prayed for a mandatory injunction for removing the hut constructed by defendant No. 2 in the mean time. The lower appellate Court set aside the order of the trial Court returning the plaint to the plaintiffs and remanded the case directing the trial Court to entertain the suit and to deter mine the question whether the suit was hit by section 92 of the Code of Civil Procedure at the time of determination of the suit itself. The lower appellate Court also made the order of ad‑interim injunction absolute and granted the prayer for mandatory injunction directing the defendant to remove the huts constructed by him during the intervening period i.e., from when the plaint was returned by the trial Court to the plaintiffs and up to the time when the plaintiffs filed in the appellate Court an application for injunction after filing an appeal against the order of the trial Court returning the plaint. Against this order of ad‑interim injunction and the mandatory injunction the defendant No. 2 moved the High Court in Civil Revision Case No. 324 of 1956 and a Division Bench of this Court passed the following order: ‑
" This Rule was obtained by the defendant No. 2 against the order of the District Judge, Rangpur, dated the 16th March 1956, setting aside the order of the trial Court and restoring a suit in which the plaint was returned by the trial Court. In doing so the appellate Court made the ad‑interim injunction absolute and directed that it would remain in force till the disposal of the suit and the petitioner was directed to remove the temporary huts erected by him after the return of the plaint by the trial Court and before the date of ad‑interim injunction by the appellate Court. It is the latter order directing removal of the temporary huts that has been agitated in the present rule.
We have heard the learned Advocates and gone through the rule. It seems to us that the order complained of is in the nature of mandatory injunction. Though the appellate Court is quite competent to pass such an order in exceptional circum stances, in view of the order of the appellate Court sending back the plaint to the trial Court to proceed with the suit in the light of the observations made by the appellate Court, in our opinion, the question of removing the temporary huts should be left open and the present status quo maintained until the suit is finally disposed of by the trial Court, as the trial Court will have the advantage of determining the issue between the parties on more detailed materials than those that were available to the appellate Court."
So the Rule was made absolute to the extent as indicated above, by the order dated 9‑7‑56.
5. The trial Court dismissed the suit on various grounds holding that the suit was hit by section 92 of the Code of Civil Procedure as there was no denial that Abani Nath Pandit was the Secretary of the managing committee of the trust properties ; that the defendant No. 2 was a constructive trustee and acquired a valid title in the suit land by virtue of lease Exh. E ; that the suit was hit by section 42 of the Specific Relief Act as admittedly defendant No. 2 was in possession of the disputed land on the basis of the agreement for lease and there was no prayer for recovery of possession as a further relief under section 42 of the Specific Relief Act ; that there was also defect of parties as Dina -Taran Lahiri, who was a necessary party according to the trial Court, was not impleaded as party to the suit ; that on the death of defendant No. 1 Abani Nath Pandit his heirs were not brought on the record and that the suit was not maintainable at the instance of the plaintiffs who were neither trustees nor secretary of the managing committee of the trust property.
6. On appeal the learned District Judge set aside the judgment and decree of the trial Court acid decreed the suit of the plaintiffs with a direction for removal of the huts constructed by defendant No. 2 on the disputed land during the pendency of the suit. Hence this appeal by defendant No. 2.
7. Mr. Islam, the learned Advocate for the appellant, raised several points in support of the appeal. The points as stated by him, are: (1) that the suit being hit by section 42 of the Specific Relief Act as well as by section 92 of the Code of Civil Proce dure, is not maintainable and the lower appellate Court is absolutely wrong in holding otherwise ; (2) that the plaintiff have no locus standi to file the suit and the lower appellate Court is absolutely wrong in holding otherwise ; (3) that the learned District Judge failed to appreciate the scope and went out of the scope of the suit in directing the defendants to remove the but constructed on the suit land before the institution of the suit ; (4) that the suit is bad for defect of parties ; (5) that the lower appellate Court has failed to appreciate the evidentiary value of Exhs. F. 12, F. 13, Exh. B series (Exhs. B 1, B 2, B 3, B 4). Exh. C series (Exhs. C, C 1, C 2), Exh. D. series (Exhs. D D 1, D 2, D 3), Exh. E, Exh. G. and Exh. L and as such arrived at a wrong conclusion ; (6) that the onus lies on the plaintiffs and not on the defendant to prove that Abani was not a trustee nor a secretary and that the resolution authorising Abani to grant lease or to make agreement for lease was not a genuine one as alleged by the plaintiffs and that the plaintiffs have got locus standi to file the suit ; and (7) that the judgment of the lower appellate Court is not a proper judgment of reversal as he did not consider the material evidence, namely, Exhs. 2, 3 and 3 (a), relied on by the trial Court, in coming to a finding contrary to the finding arrived at by the trial Court.
8. Now coming to the first question, whether the suit is hit by section 42 of the Specific Relief Act, it is all along the case of the plaintiffs, and not denied by the defendant, that the disputed property is a Hindu trust property in possession and management of either of the managing committee consisting of Hindus or of the Secretary Dina‑Taran Lahiri. It is also the case of the plaintiffs that on behalf of the trustees or on behalf of the beneficiaries, Dina‑Taran Lahiri was in possession of the property; but as he left Pakistan his relation Abani Nath Pandit taking advantage of his relationship got possession of the docu ments in connection with the trust property and assumed the management of the property as a self‑imposed secretary illegally and without any authority ; that Abani Nath Pandit in collusion with defendant No. 2, who is a Muslim refugee from up‑country, on the plea of an agreement for lease, allowed defendant No. 2 to construct huts on the disputed land ; and that Abani, who is neither a trustee nor a secretary, is not entitled to make any arrangement for transfer of any portion of the trust property which is inalienable under the trust deed. As the defendants were trying to construct structure or but on the disputed plot of land the plaintiffs asked for a permanent injunction restrain ing the defendants from constructing any but or structure on the trust property or any portion thereof. Nowhere in the plaint the plaintiffs have admitted the possession of defendant No. 2 or of defendant No. 1 Abani Nath Pandit or their right to possess. Therefore, there is no scope for other relief as contemplated under section 42 of the Specific Relief Act and the scope of the suit is to be determined with reference to the allega tions in the plaint and not with reference to the allegation in the written statements.
9. It is no doubt true that Mr. Islam, the learned Advocate for the appellant, very strongly relied on the recital in the order of the District Judge dated 2‑2‑57 in Other Appeal No. 134 of 1956 which runs thus:
" The ad‑interim injunction was issued upon the defendant- respondent to maintain the status quo till the hearing of this appeal. It is admitted by the learned pleader for the appellant that after the decree and judgment of the learned lower Court the defendant, did not raise any new structure but he has been using the old structures which he constructed before the suit and as the learned Advocate for the respondent also admits that his client the defendant‑respondent would not raise any new structure during the pendency of the appeal ad‑interim restraint order be made absolute . . . . . ."
The words " before the suit ", underlined by me, in the order quoted above are the words on which Mr. Islam mostly relied. It is apparently a mistake in view of the order of the High Court in the revision case, as already quoted‑in the earlier part of this judgment, which clearly shows that the but was constructed dur ing the period between the returning of the plaint by the trial Court and the filing of the appeal against the order of the trial Court returning the plaint to the lower appellate Court by the plaintiffs who obtained an injunction order from the lower appellate Court against the defendant restraining him from constructing any but or structure on the disputed land. On the basis of this, the learned Advocate for the appellant advanced an argument that the suit without a prayer for recovery of possession of the land, admittedly in possession of the defendant, is not maintainable under section 42 of the Specific Relief Act and in support of this contention he relied on the case of Haji Yar Ali Khan Chowdhury v. Mobarak Ali Chowdhury and others ((1955) 7 D L R 691) to the decision of which I am also a party. But the facts and circumstances of that case are quite different from those of the present one and the principle enunciated therein has got no application to the facts of the present case.
10. The learned Advocate for the appellant very strongly supported his contention that the suit is hit by section 92 of the Code of Civil Procedure as the relief claimed in the suit, though does not come not directly under any of the clauses (a) to (g) of section 92, comes under clause (h) of that section " granting such further or other relief as the nature of the case may require ". His contention is that the effect of the decree in this suit would be the declaration that Abani Nath Pandit was not the secretary of the trust property and the defendant No. 2 was also not the constructive trustee and, therefore, it comes under section 92 of the Civil Procedure Code. We are unable to accept this contention as sound. The relief sought in this suit is a permanent injunction restraining the defendants from construct ing any structure on the trust property described in the schedule of the plaint. Of course, when deciding the question whether temporary injunction should be granted or not, the Court has to look into the question whether the trust property is alienable under the deed of trust and whether Abani Nath Pandit has got the power to transfer it and whether, in fact, there has been any transfer of defendant No. 2 or not. The learned District Judge at page 43 of the paper book held:
" From the Trust Deed Exh. 1, it appears that on no property of the Dharma‑Sava incumbrance can be created and though there is, a term in the Trust Deed that improvement of the Dharma -Sava should be made, in my opinion improvement does not mean pecuniary gain. On the other hand, it means improve ment of the object for which trust was created i.e., for improve ment of the existing buildings, " establishment of press, print ing of Hindu scriptures and religious magazines etc. It has been stated in the Trust Deed Exh. 1, that no acts detrimental to the object of the trust can be done and P. W. 2, Subodh Chandra Ray and others stated that the suit land was used during ceremony of Durga Puja and other religious rites, congregation of Hindu ladies etc."
Further the learned District Judge at page 44 has definitely found that the deed of agreement Exh. E is an unregistered document and that it is an agreement creating a lease for exceeding one year and reserving annual rent and if not having been registered it is not admissible in evidence and it did not create any interest in favour of defendant No. 2 and that it did not affect the disputed land. It is not disputed that Abani Pandit as a secretary is not entitled to make any transfer of any trust property or any portion thereof. It is the case of defendant No. 1 that he was authorised by a resolution to make the arrangement he has made with defendant No. 2 and in order to establish that fact he relied on Exh. F series showing that there was a meeting for the election of the managing committee and Abani Nath Pandit was elected as the secretary. Exh. D. series are the rules of the Dharma‑Sava under which those meet ings were held. But the learned District Judge found that these Exh. F series are fictitious documents and they have not been legally proved except the signature of the writer; that Exh. G which is said to be a copy signed by Dinataran Lahiri, have not been proved by producing the original and that there is no certificate to the effect that it has been compared with the original and this Exh. G clearly contravenes some of the important terms of the registered trust deed according to which none but the members of the Dharma‑sava can be elected members of the executive committee and of the Dharma‑sava. At page 41 of the paper book the learned District Judge held:
" From the resolutions Exh. F series it appears that all along Dinataran Lahiri was mentioned as Secretary, so also Abani Pandit and it was on 26‑10‑52 that a resolution appeared to have been passed stating inclusion of the name of Abani Pandit as Secretary to the Trust Board and the proceeding of that meeting appears to be a suspicious one. It appears that a separate paper was pasted in the Resolution Book and this resolution cannot be relied upon."
We have ourselves examined that resolution dated 26‑10‑52 in the presence of the learned Advocates of both the parties and it is quite clear that it is distinctly in a separate sheet of paper pasted up in the said Resolution Book of the Dharma‑sava. All these clearly show that Abani Pandit was never elected as the Secretary nor was he authorised to make any transfer of any portion of the property of the Dharma‑sava. At page 42 of the paper book the learned District Judge also held that Abani Nath Pandit was not a trustee of the Dharma‑sava and that he was not elected Secretary of the said Dharma‑sava by any legally con stituted committee and that he has no right to grant any lease or to enter into any agreement for lease with defendant No. 2. These are matters to be decided in determining whether per manent injunction should be granted or not, but that does not mean that the suit is one coming under section 92 of the Code of Civil Procedure. In support of this view reference may be made to the Privy Council case of Abdur Rahim and others v. Syed Abu Mahomed Barkat Ali Shah (since deceased) and others (32 C W N 482), where it has been held by their Lordships of the Privy Council.
" Section 92, subsection (2) of the Civil Procedure Code only enacts that suits which pray for any of the reliefs mentioned in subsection (1) must be instituted in accordance with the provisions of that section. It does not mean that all suits founded on any breach of trust for public purposes of a charitable or religious nature, irrespective of the relief sought must be instituted in conformity with the provisions of section 92.
The words ` further or other relief ' in clause (h) sub section (1), section 92 mean relief of the same nature as provided for in clauses (a) to (g); they do not mean any relief other than those indicated in clauses (a) to (g) which the circumstances of a particular case may require. In particular they do not cover reliefs against third parties i.e., strangers to the trust."
11. We may also refer, in connection with this point, to the decision of Madras High Court, particularly to the decision of Abdur Rahim, (lately ` Sir') Officiating Chief Jus tice, in the case of Kalyana Venkataramana Ayyangar and another v. Kasturiranga Ayyangar (1 L R 40 Mad. 212), where it has been held that " section 92 of the Civil Procedure Code is not applicable to suits whose object is to establish the right of the temple to property in the hands of strangers alienees from the temple authorities and that the suit was therefore main tainable without such sanction ". Abdur Rahim, C. J., held:
" The phrase `vesting any property in trustees' seems to…
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