- (1.) IN this case counter and rejoinder affidavits were filed by the parties. As desired by the learned counsel for the parties, case was heard and is being decided finally at this stage.
(2.) THE instant revision arises out of the proceedings under S. 92, C. P. C. and is directed against the judgment and order passed by the District Judge, Jhansi, dated 4-12-1992, granting permission to the contesting respondents to institute a suit under S. 92. C. P. C. with respect to the temple, known as, Sri Kalyan Rai Ji Virajman Mandir, Madhopura, village Bhasneh, Pargana Garautha, district Jhansi, for short 'property in dispute'. THE opposite parties filed an application under S. 92, C. P. C. praying for granting permission to file the suit for constitution of a trust committee and to frame a scheme of administration for managing the trust property. It was claimed that the said property was a public trust, which was being mismanaged, therefore, it was necessary to frame a scheme of administration for proper administration of the trust property. On receipt of the notices from the Court of the District Judge, applicants filed their objection pleading that the trust in question was not a public trust, that it was an ancestral and personal temple established by Bhagwan Das appointed Mahant Ram Das Chela as Manager/sarvarkar of the properties of the temple. He also executed a registered will dated 6-9-1983 in favour of Chela Prabhu Dayal. It was contended that the application filed under S. 92, C. P. C. , therefore, was liable to be dismissed. It is evident from the material on record that the suit, for the above mentioned relief, was filed and simultaneously application under S. 92, C. P. C. , was also filed. The applicants are alleged to have filed voluminous documentary evidence in support of their case. The Court below, thereafter, passed the following order: 4-12-1999 Case called out. The parties counsels are present. 3-A is an application for permission under S. 92, C. P. C. to file the suit in respect of the property of the trust created for the religious purpose. The plots mentioned in the list 4-A-1 are said to be the property of the deity Kalyanji Maharaj, situated in village Madhopura. The revenue records have been filed and the entries are shown to be in the name of the deity. Subsequently the efforts are shown to have been made to convert the property in the private names of opposite parties Udai Narain Chela Prabhu Dayal, Ramjiwan and Girjanandan. Since the property is shown to be that of deity and efforts have been made to privatise and take it by usurpation, under the aforesaid circumstances it appears quite justifiable to give permission under S. 92, C. P. C. This finding will not however prejudice the final disposal of the suit between the parties. ORDEr Application 3-A is hereby allowed. Prayer for permission to file the suit under S. 92, C. P. C. is granted. District Judge, Jhansi. " Challenging the validity of the above noted order, as stated above, the present revision has been filed by Prabhu Dayal Tiwari and others.
(3.) LEARNED counsel for the applicants vehemently urged that permission to institute a suit under S. 92, C. P. C. was a condition precedent. The respondents have acted illegally in filing the suit and simultaneously applying for permission under S. 92, C. P. C. The Court below is also stated to have acted illegally and in excess of its jurisdiction for entertaining the said application and allowing the same. It was also urged that the order passed by the Court below is a non-speaking order inasmuch as the Court below failed to take into consideration and examine critically the documentary evidence filed by the applicants and acted illegally and arbitrarily in allowing the same. The impugned order was, thus, liable to be quashed. On the other hand, learned counsel appearing for the contesting respondents submitted that the order impugned in the present revision was an administrative order, which was not revisable under S. 115, C. P. C. The revision as framed and filed, was therefore, liable to be dismissed. It was submitted that the Court below has rightly granted permission to institute the suit under the facts and circumstances of the present case. The revision filed by the applicants was, therefore, liable to be dismissed. It was also urged that the order under challenged was appealable under Order 43 Rule 1 read with S. 104, C. P. C. LEARNED counsel for the parties in support of their contentions also referred and relied upon decisions of this Court as well as the Supreme Court, which I will deal with hereafter at appropriate place. I have considered the submissions made by the learned counsel for the parties and also carefully perused the record.;