Poonam Srivastava, J. - (1.) HEARD Sri H.M. Srivastava, learned Counsel for the appellant and Sri Shahroze Khan, learned Counsel appearing for the caveator/respondent No. 1. This is defendant's second appeal against the judgment and decree dated 21.3.2002 passed by the Civil Judge (Senior Division) Siddharth Nagar in Original Suit No. 234 of 1985 and also the judgment and decree dated 23.1.2006 passed by the Additional District Judge, Court No. 1, Siddharth Nagar in Civil Appeal No. 21 of 2002.
(2.) THE dispute is in respect of the temple situated at Tetari Bazar named as Hanuman Garhi Temple. It is stated that the temple was renovated in the year 1960 and this temple was being maintained by the Ajama Akhara of Nepal. A Dharamshala was also constructed along with the temple. The construction of the temple as well as Dharamshala was from the money denoted by the people of Nepal, who were members of the Ajama Akhara. The defendant claimed that one Ram Tahal Das was appointed as Sarvarakar of the Temple and after his death, one Sukh Ram Das was appointed by the Ajama Akhara in his place. Subsequently, one Vishwanath Das was appointed. The defendant claims himself to be appointed as Sarvarakar of the Temple and Dharamshala on the basis of a will deed, which is said to have been executed by the previous Sarvarakar Jhinku Das on 28.12.1977. A copy of the same has been annexed as Annexure No. 1 to the affidavit filed in support of the stay application. The plaintiff/respondent instituted Original Suit No. 234 of 1985 for possession. It was pleaded that after Jhinku Das, who was appointed as Pujari left the Temple, defendant Anumant Lal was temporarily asked to look after the affairs of the Temple. He illegally allowed his brother appellant/defendant No. 2 to occupy the adjacent room without knowledge of the plaintiff. It was further pleaded that the appellant is a criminal and all the goods of the Temple are kept in that room. The plaintiff was duly appointed as Vyavasthapak of Hanuman Garhi Temple by the State of U.P. in accordance with provisions of Antiquities and Art Treasure Rule, 1973 on 27.3.1982. Copies of the certificates have been brought on record, which have been annexed as Annexure Nos. 3 -A and 3 -B to the affidavit filed in support of the stay application. The Trial Court framed a number of issues. Issue No. 2 was on the question, whether the disputed Temple is a public trust and issue No. 1 was whether the plaintiff is validly appointed as Sarvarakar and Manager of the temple and competent to dispossess the defendant Nos. 1 and 2. Execution of certificates of appointment in favour of the plaintiff were not disputed by the defendant. The defendant has not even challenged validity of the two registration certificates and, therefore, the Trial Court placed reliance and came to a conclusion that the plaintiff is appointed on the basis of the said certificates, besides the electricity bills etc. were also produced in the name of the plaintiff/respondent. The suit was decreed for possession holding that the defendant/appellant is not a validly appointed Sarvarakar by the Ajama Akhara as claimed by him, therefore, he is not entitled to remain in possession. The appeal filed by the defendant/appellant was dismissed and the judgment and decree of the Trial Court was confirmed. Learned Counsel for the appellant has raised question of law regarding section 92, C.P.C. It is argued that since the property in question was public trust, the suit was not maintainable in the representative capacity without leave of the Court and whether the suit could be decreed on the basis of shortcomings of the defendant. During the course of argument, it was brought to my notice that initially first appeal filed by the plaintiff/respondent was allowed and the suit was remanded. The remand order has been brought on record by means of the supplementary affidavit. It appears that the objection regarding maintainability of the suit without leave of the Court was neither raised in the suit nor in the appeal. However, it is submitted that since it is a legal question, which can be considered in this appeal as well.
(3.) SECTION 92, C.P.C. relates to institution of a suit in representative capacity, can only be done after taking leave of the Court. Since no leave was taken, suit could not have continued. Basis of the argument is that since the Temple is being managed from the offerings made by the general public, it comes within ambit of public charity, therefore, provisions of section 92 will be made applicable. In the instant case, the appellant claimed himself to be appointed on the basis of a will (IKCHA PATRA) by Jhinku Das, who was appointed by Ajama Akhara. On own showing and claim set up by the defendant, it transpires that the question regarding the property being public trust was neither set up in the pleadings nor argued at any stage. Assuming the assertion of the appellant to be correct, even then I am not in agreement, for the reason that Ajama Akhara of Nepal is a private trust and not public trust and also that the plaintiff brought the suit for possession after having being appointed under the provisions of Antiquities and Art Treasure Rules, 1973. Certificates having being issued for his appointment, therefore, it cannot be said that provisions of section 92, C.P.C. are applicable. The condition for applicability and invoking section 92 of the Code, three conditions must be satisfied namely (i) when the trust is crated for public purposes of a charitable or religious nature; (ii) there was a breach of trust or a direction of the Court is necessary in administration of such a trust; (iii) the relief claimed is one or other reliefs enumerated therein. It was ruled in the case of Bishwanath and another v. Sri Thakur Radha Ballabhji and others : AIR 1967 SC 1044, if any of the aforesaid three conditions is not satisfied, the suit falls outside the scope of section 92, C.P.C. Perusal of the two judgments do not show that there is any such pleadings in respect of the property in dispute. Therefore; argument that no leave of the Court was taken, is absolutely without any basis. No doubt, the relief claimed is one for possession as provided by the State Amendment for the State of U.P., (U.P. Act No. 24 of 1954), section 2 and schedule, item 5, entry 5 (w.e.f. 30.11.1954) clause (bb) where relief of delivery of possession is added but this alone is not sufficient. The existence of all the three conditions is essential to bring the case within the purview of section 92, C.P.C., existence of one of the conditions is not sufficient.;