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2014 DIGILAW 1686 (RAJ)

Vikas Ganeriwala v. State of Rajasthan

2014-10-15

R.S.CHAUHAN

body2014
JUDGMENT 1. - Aggrieved by the order dated 7.10.2011, passed by the Addl. District Judge No.1, Sikar, whereby the learned Judge has dismissed the petitioners' application under Order 22, Rule 3 CPC, the petitioners have approached this Court. 2. The brief facts of the case are that Seth Jugal Das Ganeriwala Charitable Trust along with Mr. Basant Kumar Ganeriwala had filed a suit for eviction of the respondent-defendants before the learned Judge. According to the plaintiffs, the father of Mr. Basant Kumar Ganeriwala, namely Mr. Rameshwarlal Ganeriwala surrendered the property of the family by creating the Trust mentioned above. The Trust had certain properties belonging to the Ganeriwala family situated in Village Ganeri, District Sikar. Further, according to the plaintiffs, the Sarpanch, constructed a Panchayat, Patwar, Gram Sewak Bhawan on the property belonging to the Trust. The said construction was raised without the consent of the Trust. Therefore, the Trust filed a civil suit. During the pendency of the civil suit, Mr. Basant Kumar Ganeriwala expired on 25.10.2009. The petitioner Nos. 1 to 4 claimed to be his legal representatives. They further claimed that during the annual cleaning, they found many papers belonging to their father, Mr. Basant Kumar Ganeriwala. From these papers, they realised that he had instituted a suit along with the Trust before the learned Judge. Therefore, on 5.2.2011, they submitted an application under Order 22, Rule 3 CPC for taking them on record as legal representatives of Mr. Basant Kumar Ganeriwala. They also filed an application under Section 5 of the Limitation Act. However, by order dated 7.10.2011, the learned Judge has rejected the said application. Hence, this petition before this Court. 3. Mr. Anoop Dhand, the learned counsel for the petitioners, has pleaded that since the property belonged to the Ganeriwala family, since the petitioners' grandfather was solely looking after the property, since Mr. Basant Kumar Ganeriwala was actively involved with the Trust, he had filed the civil suit along with Trust. Secondly, the learned Judge is not justified in claiming that there is no evidence to show that Mr. Basant Kumar Ganeriwala was a Trustee of the Trust. According to Mr. Dhand, the said observation is clearly contradicted by a document dated 10.1.1998, which clearly shows the names of Trustees as well as the names of members of the Trust. The name of Mr. Basant Kumar Ganeriwala is shown at item no. 5. Basant Kumar Ganeriwala was a Trustee of the Trust. According to Mr. Dhand, the said observation is clearly contradicted by a document dated 10.1.1998, which clearly shows the names of Trustees as well as the names of members of the Trust. The name of Mr. Basant Kumar Ganeriwala is shown at item no. 5. Hence, according to him, the observation made by the learned Judge is misplaced. Thirdly, Mr. Basant Kumar Ganeriwala had also made a declaration, wherein he had clearly stated that Gram Panchayat, Ganeri had issued a Patta on 30.4.1960/11.6.1960. Moreover, family properties were created into Trust. Yet, the Panchayat Ghar, Patwar Ghar and Gram Sewak Quarter have been built upon the said property. Fourthly, since the petitioners are the legal heirs of the Mr. Basant Kumar Ganeriwala, they are equally his legal representatives. Thus, they have the right to pursue the suit filed by their father. Lastly, in case, the learned Judge had any doubt on the issues, whether the petitioners, who are, indeed, legal representatives of Mr. Basant Kumar Ganeriwala, he should have followed the procedure established under Order 22, Rule 5 CPC. Since, the impugned order has been passed without following the said procedure, the order deserves to be set aside. 4. Heard the learned counsel for the petitioners and considered the other documents submitted along with the petition and examined the impugned order. 5. A bare perusal of the plaint clearly reveals that the suit has been filed by the Trust, through its power of attorney holder Mr. Hanuman Prasad and by Mr. Basant Kumar Ganeriwala. It is, indeed, a settled position of law that once the propertied are handed over to a Trust, the owner of the property and his legal heirs have no concern with the property as the property now belongs to a Trust, which has a separate existence altogether. This is also clear from the declaration made by Mr. Basant Kumar Ganeriwala himself, wherein he has clearly stated that "no successor of late Mr. Rameshwarlal Ganeriwala has any concern whatsoever with the above properties and the properties belong to the abovementioned Trust only". Thus, it is only the Trust, which has a right over the properties and has the right to file a suit, through its Trustees. 6. With the demise of Mr. Basant Kumar Ganeriwala, the right to sue continues to be in the Trust. Thus, it is only the Trust, which has a right over the properties and has the right to file a suit, through its Trustees. 6. With the demise of Mr. Basant Kumar Ganeriwala, the right to sue continues to be in the Trust. But merely because the petitioners happen to be the legal representatives of Mr. Basant Kumar Ganeriwala, they cannot claim that they have interest in the property belonging to the Trust. This is equally obvious from the declaration made by Mr. Basant Kumar Ganeriwala that none of the descendants of Mr. Rameshwarlal Ganeriwala would have any concern with the property and the property belongs to Trust itself. Therefore, the position taken by the learned counsel for the petitioners that since the petitioners happened to be the legal heirs of Mr. Basant Kumar Ganeriwala, therefore, they are equally the legal representatives and have right to pursue the suit, is highly misplaced. 7. Since the legal position is clear, there was no need for the learned Judge to follow the procedure establish under Order 22, Rule 5 CPC. Hence, the learned Judge was certainly justified in dismissing the application filed under Order 22, Rule 3 CPC. 8. For the reasons stated above, the writ petition is devoid of any merit. It is, hereby, dismissed. The stay application, too, stands dismissed.Petition dismissed. *******