Decided on December 16,1967

MANGILAL Appellant
DURGA DEVI Respondents


- (1.) THE suit giving rise to this appeal against the judgment and decree of the district Judge of Bharatpur, dated March 4, 1960, was raised on October, 5, 1953 by Gopinath, Ramprasad and Mangilal, in a representative capacity, on behalf of the general public of Gangapur City, with the sanction of the Advocate General under Section 92 of the Code of Civil Procedure. Plaintiff Ramprasad died during the course of the trial and his name was therefore struck off.
(2.) THE property shown insite plan Ex. X (filed with the plaint) and described in paragraph 2 of the plaint is situated, near Mahu gate, in Gangapur town on the railway station road. It consists of a "bagichi" (or small garden), with a "dharamshala", a well, a "chatri" etc. According to the plaintiffs, it was known as bhagat-wali-bagichi and the villagers used to take their bath on the well and worship the idol of Mahadevji in the "chatri". It was the case of the plaintiffs that the "bagichi" had been built by the residents of Gangapur and that it was dedicated in trust for the use of the travellers and "sadhus". The general public also used to take advantage of the "bagichi" further, the plaintiffs pleaded that on April 13, 1934, one Umraosingh alias ramanand Das, who had become a "san-yasi" aftet retirement from Government service, took the permission of the Tehsil-dar to complete that portion of the property which has been shown at No. 1 in the site plan (Ex. X) and that he also took permission to erect a "pator" (or a hut of stones without the use of lime) on the eastern side, and that this permission was granted on the specific condition that the property shall continue to remain the property of the trust. Ramanand das made the constructions for which he obtained the permission of the tehsildar, and he again approached the Tehsildar for permission to erect another "pator" at the place shown at No. 2 in the site plan so that the main building may not be spoiled by using it as a kitchen. He obtained the permission on June 25, 1935, but. according to the plaintiffs, he could not erect the "pator" even though he used to manage the "bagichi" including the "dharamshala" the "pator" the well etc. as trust property. He however appointed defendant Ramjilal and one Sunderlal (defendant 4) as trustees by a registered document dated August 4, 1936 (Ex 3) with the direction that the trust property should be utilised for the resident of travellers and "sanyasis" He died thereafter and the persons nominated by him began to function as trustees. Sunderlal, it was alleged renounced his status as trustees and left Gangapur some 10 vears ago. He became untracenble and defendant Ramiila) began to manage the trust property exclusivelv bv giving it out that Sunderlal had died. He began to use the premises for the Arya Samai He also started living with his family in the "pator" which the public had erected a1 the place shown at No. 2 in the site plan and then he built an enclosure around it. The plaintiffs felt aggrieved because of this conduct oi defendant Ramjilal. They also felt aggrieved because he executed fictitious gift deed Ex. 18 on July 4, 1953 in favour of his wife Smt. Durga Devi defendant No. 2 and also because he drew up fictitious trust deed Ex. 19 dated june 25, 1953 in favour of his son Suraj Narain defendant No. 3. It was also alleged that Ramjilal removed the idol of Mahadevji and in this way prevented the worship in the "chatri". Certain other instances of misconduct were also given, but it is not necessary to refer to all of them. The plaintiffs pleaded that they were interested in the proper management of the trust property and that they had obtained the consent in writing of the Advocate general to institute the present suit for the removal of defendants Ramji-lal, Surai narain and Sunderlal from their office as trustees and for the appointment of a suitable person in their place in whom the entire trust property may be ordered to vest. It was also prayed that the gift deed dated July 4, 1953 may be declared to be null and void.
(3.) DEFENDANT Ramjilal denied the existence of Bhagat-wali-bagichi in Gangapur. He pleaded that there was of course a well and a "chatri" at different places but that property had nothing to do with the trust in respect of the "dharamshala". He took the plea that the "pator" and the "chatri" were known after one Maiji, while the "dharamshala" was known after Ramanand Das and the well was known as "bhagat-wala-well" He categorically denied that all these were situated in one compound. So also, he denied the particulars of the suit property given in the plaint. He pleaded that the public was continuing to use the well as before, that he did not find the idol of Mahadevii in the "chatri', that the "bagichi" was not built by the residents of Gangapur and that they did not spend money over it and it was not a trust property. It was thus the main line of the defence that only the "dharamshala" (shown at No 1 in the site plan) was the trust property having been built by Ramanand Das, He denied thai any 'pator' was built by Ramanand Das, but admitted that Ghasi-giri and Kashigiri Goswamis used to look after the "chatri". He also admitted that Sunderlal looked after the "pator" of Kashigiri as 3 trustee after Kashigiri's death He pleaded that Sunderlal sold his property in gangapur and went away. and that he had therefore to manage the "dharamshala" and the Maijiwala "pator" as a trustee and that from 1953 it was surainarain defendant No. 3 who was discharging those duties as regards the 'pator" shown at No. 2 in the site plan, the defendant pleaded that it belonged to him and was in his possession and that it was not the properly of any trust although it had been built on Government land. He denied that he had misconducted himself in the management of the trust property, but admitted having appointed his son Suraj Narain as a trustee. alleging that the trust was a private trust. The interest of the plaintiffs in the suit property was denied and it was pleaded that the gift deed was in respect of the defendant's private property and was valid. The defendant also pleaded that he was no longer the trustee because of the appointment of Sura. i Narain as the trustee under trust-deed Ex. . 19. The main line of the defence therefore was that the "dharymshala" had been built by Ramanand Das and it alone was the property of the trust which he created, while the disputed portion of the property shown at No. 2 in site plan Ex. X was Ram. iilal's private property. He pleaded that the Khandelwals of Gangapur had raised an objection during the lifetime of Ramanand Das. before the concerned revenue authority of State of jaipur, that Ramanand Das was not allowing the travellers to stav in the "dharamshala". and that the bagichi" belonged to them, but they failed in getting redress. The defendant further pleaded that Ramprasad plaintiff No. 2, along with some others, tried to have the "dharamshala", the well and the other property declared as public property of the Khandelwals when there was a survey of the town of Gangapur, but without success. According to him the plaintiffs could not succeed in a suit under Section 92 of the Code of Civil Procedure because a period of 12 years had passed in the meantime.;

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