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2005 DIGILAW 318 (UTT)

Data Ram v. Shiv Prasad Bhatt

2005-08-03

PRAFULLA C.PANT

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ORDER Prafulla C. Pant, J. 1. This civil revision, preferred under Section 115 of Code of Civil Procedure, 1908, is directed against the order dated 5-2-2005 passed by learned District Judge, Tehri Garhwal, whereby the leave for filing suit under Section 92 of the Code has been granted to the plaintiffs. 2. Brief facts of the case are that, there is an ancient temple in District Tehri known as "Maa Bhagwati Chandrabadni Siddha Peeth'. The plaintiffs (present respondents) filed a plaint before the learned District Judge, Tehri Garhwal with the application under Section 92 of the Code of Civil Procedure, 1908, stating that the plaintiffs are 'Pujarees' of said temple being Bhatt Brahmins of village Pujargaon. It was further stated that the revisionist (defendant) with the muscle power got possession of the temple and appointed himself Trustee. He stopped the plaintiffs from worshiping in the temple. Alleging misconduct on the part of the Trustees that they have not maintained the accounts of the Trust property, removal of the revisionist (defendant) from the Trusteeship is prayed in the plaint and leave was sought under Section 92 of the Code of Civil Procedure, 1908. 3. I heard learned counsel for the parties and perused the record. 4. Learned counsel for the revisionist argued that the leave under Section 92 of the aforesaid Code has wrongly been given by the learned trial Court, which is against the law. I have examined the impugned order in the light of Section 92 of the aforesaid Code. For leave under the Section, following four ingredients must be established : (i) The suit must relate to public charitable or religious Trusts, (ii) There must be allegation of breach of trust, (iii) Relief claimed must be at least one of those mentioned in this Section, and (iv) Interest of the plaintiff should not be personal. Section 92 applies not only to express 'Trust', but also to constructive Trusts. As to the existence of charitable Trust, the revisionist in his objections dated 4-12-2004 filed before learned trial Court, in its paras 3 and 4, has himself admitted that "MAA BHAGWATI CHANDRABADN1 SIDDHA PEETH' is a public religious and charitable Trust, of which he is a Trustee. That being So, two of the aforesaid ingredients get satisfied on the basis of the admission of the revisionist himelf. That being So, two of the aforesaid ingredients get satisfied on the basis of the admission of the revisionist himelf. As far as the third ingredient is concerned, para 7 of the application dated 6-10-2004 moved by the plaintiffs (present respondents) under Section 92 of the Code, shows that the relief of removal of Trustee is sought which comes under Clause (a) of Sub-section (1) of Section 92, as such, the three out of four ingredidents are fulfilled. Now the question remains as to the fact if the suit is being filed for personal interest. 5. My attention was drawn by the learned counsel for the parties to the counter-affidavit and rejoinder affidavit filed by them, and the earlier litigation, which is pending before them in the form of First Appeal No. 779 of 1984 (new number 697 of 2001), Gajendra Datt vs. Narottam pending before this Court. From the array of parties in the present revision, neither Gajendra Datt nor Narottam Datt appears to be party in the present case. It appears that the cause of action in both the suits is also different, as such I am unable to interfere with the impugned order on the ground of pendency of First Appeal No. 697 of 2001. Learned counsel for the parties did not dispute even said suit was filed under Section 92 of the Code. 6. Mr. Rajendra Dobhal, learned counsel for the revisionist drew my attention to the judgment of the Apex Court in Swami Parmatmanand Saraswati v. Ramii Tripathi , and argued that plaintiffs cannot be permitted to pursue their personal rights under Section 92 of the Code. Para 10 of the application moved under Section 92 of the Code, which is An-nexure-1 to the affidavit filed with this revision shows that the suit is being filed in the representative capacity in the interest of more than 700 villagers of village Pujargaon, who have right of wordship in "MAA BHAGWATI CHANDRABADNI SIDDHA PEETH' temple. As such, it cannot be said if the plaintiffs have filed the suit only for their personal interest. The interest which they share with other villagers cannot be said to be a personal interest. 7. As such, it cannot be said if the plaintiffs have filed the suit only for their personal interest. The interest which they share with other villagers cannot be said to be a personal interest. 7. In its exercise of revisional jurisdiction, this Court has not to interfere into the factual satisfaction of the trial Court and is required to see if the order has been passed in violation of law or in wrong exercise of jurisdiction. The inpugned order comes under neither of the two. 8. In the facts and circumstances of the case, and for the reasons as discussed above, the revision is dismissed.