- (1.) THIS second appeal arises out of a suit for declaration, possession and for damages for use and occupation.
(2.) THE facts in brief are these: In the district of Agra in Tehsil Kiraoli there is village known as Chauma Shahpur. THE village is in two parts- one is known as Chauma and the other is known as Shahpur. An old temple of Shri Gopal Krishna Bankey Behariji is said to exist at Shahpur and the plaintiff No. 1 is said to be the said deity installed in the said temple. Plaintiffs Nos. 2 to 6 reside in the said village and worship in the said temple. THE deity sued through Baba Premanand who claimed to be the manager and pujari of the deity in the said temple. It was alleged that the defendant, Shri Lal Kishan, was formerly managing the said temple and was the pujari of the same. He left managing the plaintiff No. 1 and kept some idols in his own residential house situated at Chauma and began to claim that the old temple of the plaintiff No. 1 was at his residential place at Chauma and not at Shahpur. THE plaintiff asserted that there was no temple at Chauma and the deity really stood installed in the old temple at Shahpur. THE deity owned the land of Khata No. 64 situated in Shahpur Bandpura, detailed in Schedule A to the plaint and the defendant was formerly managing the said landed property in his capacity as the manager of the deity. Subsequently, he began to assert wrongly that the said landed property belonged to the alleged temple at Chauma. It was further claimed that the plaintiffs Nos. 2 to 6 raised subscription from the people of the village and carried out repairs to the old temple at Shahpur as the defendant had ceased to look after the said temple. It was further alleged that the defendant, even though called upon to do so, did not agree to manage the temple at Shahpur and to spend the income out of the plots of Khata No. 64 towards the Sewa Puja of the plaintiff No. 1. THE defendant refused to deliver possession of the plots to the plaintiffs. It was further alleged that the Gram Samaj also passed a resolution for expunging the name of the defendant from the revenue records and for arranging for some other person to manage the temple of the plaintiff No. 1. A case was also instituted before the S.D.O. Kiraoli for the correction of papers but the same was dismissed on the ground that the controversy needed to be settled by a civil court. Hence, the plaintiffs instituted the suit in question. THE plaintiffs claimed the following main reliefs: (A) That it be declared the old temple of Shri Gopal Krishna Bankey Behariji is situated at Shahpur also known as Bandpura, Tehsil Kiraoli, District Agra, and the plots detailed in Schedule A to the plaint are attached and belong to the said idol. (B) That a decree for possession over the plots detailed in Schedule A to the plaint be also passed in favour of the plaintiffs against the defendant. (B1) That a decree for net profits or damages for use and occupation, future and pendente lite at Rs. 2500/- P.A. be also passed against the defendant in favour of the plaintiff." The defendant contested the suit. He claimed that the old temple was really situated at Chauma and the alleged temple said to be situated at Shahpur was a new one. The deity was really installed in the temple at Chauma and the property in Khata No. 64 belonged to the deity installed in the temple at Chauma. The defendant claimed to be the pujari and sarbarakar of the temple at Chauma. The other allegations in the plaint were also denied. The trial court framed the necessary issues end tried the suit. The same was decreed for declarations, possession and mesne profits as claimed by the plaintiffs.
(3.) THE defendant filed an appeal in the lower appellate court and the same was allowed. THE judgment and decree of the trial court were set aside and the plaintiffs' suit was dismissed. THE plaintiffs have now come up in the instant second appeal and in support of the same I have heard Shri G. C. Bhattacharya, learned counsel for the appellants. In opposition, learned counsel for the defendant-respondent has made his submissions. THE lower appellate court held the suit to be not maintainable on two grounds. Firstly, it was held that it was barred by S. 92 C. P. C., and secondly, it was held to be barred by S. 331 of the U. P. Zamindari Abolition and Land Reforms Act, 1951. THE said court has also stated in its judgment that the reliefs for possession and mesne profits were not pressed before it. Shri Bhattacharya sought to contend that the concession made in the lower appellate court was not binding on his client. Ground No. 21 in the grounds of appeal is as follows :- " Because the concession made by the counsel for the appellant regarding relief of possession and mesne profit is not binding on the appellant as the same is contrary to law and without the consent of the appellant. Further such concession has no effect in law." In my view this contention to not correct. The Supreme Court in Bank of Bihar v. Mahabir Lal (AIR 1964 SC 377), has clearly laid down as follows (at page 380): " In our opinion, where a statement appears in the judgment of a court that a particular thing happened or did not happen before it, it ought not ordinarily to be permitted to be challenged by a party unless, of course, both the parties to the litigation agree that the statement is wrong, or the court itself admits that the statement is erroneous." It is true that a counsel' s concession or an admission on the question of law may not be binding on his client but in the instant case it is not a concession on a pure question of law which is involved. Certain reliefs claimed in the plaint were not pressed before the lower appellate court by the counsel for the plaintiffs and, in my opinion, counsel must be held to have authority to act in the said manner on behalf of his client. In my view, therefore, it is not open to the learned counsel for the appellants to claim the reliefs for possession and mesne profits as the same must be deemed to have been given up in view of the statement contained in the judgment of the lower appellate court. The only question, therefore, which remains to be considered is regarding the declaration which was sought in the suit. Shri Bhattacharya placed reliance on Biswanath .v. Radha Ballabhji (AIR 1967 SC 1044), where it has been laid down as follows (at page 1046): " It is settled law that to invoke S. 92 of the Civil P. C., 3 conditions have to be satisfied, namely, (i) the trust is created for public purposes of a charitable or religious nature; (ii) there was a breach of trust or a direction of Court is necessary in the administration of such a trust; and (iii) the relief claimed is one or other of the reliefs enumerated therein. If any of the 3 conditions is not satisfied, the suit falls outside the scope of the said section. A suit by an idol for a declaration of its title to property and for possession of the same from the defendant, who is in possession thereof under a void alienation, is not one of the reliefs found in S. 92 of the Civil P. C. That a suit for declaration that property belongs to a trust is held to fall outside the scope of S. 92 of the Civil P. C., by the Privy Council in Abdur Rahim v. Abu Mahomed Barkat Ali, 55 Ind App 96 : (AIR 1928 PC 16), and by this Court in Pragdasji Guru Bhagwandasji v. Ishwarlalbhai Narsibhai, 1952 SCR 513 : (AIR 1952 SC 143), on the ground that a relief for declaration is not one of the reliefs enumerated in S. 92 of the Civil P. C. So too, for the same reason a suit for a declaration that certain properties belong to a trust and for possession thereof from the alienee has also been held to be not covered by the provisions of S. 92 of the Civil P. C.; See Mukaremdas Mannudas Bairagi v. Chhagan Kisan Bhawasar, ILR (1957) Bom 809 : (AIR 1959 Bom 491). Other decisions have reached the same result on a different ground, namely, that such a suit is one for the enforcement of a private right. It was held that a suit by an idol as a juristic person against persons who interfered unlawfully with the property of the idol was a suit for enforcement of its private right and was, therefore, not a suit to which S. 92 of the Civil P. C, applied: See Darshan Lal v. Shibji Maharaj Birajman, ILR 45 All 215 : (AIR 1923 All 120); and Madhavrao Anandrao v. Shri Omkareshvar Ghat, 31 Bom LR 192 : (AIR 1929 Bom 153). The present suit is filed by the idol for possession of its property from the person who is in illegal possession thereof and, therefore, it is a suit by the idol to enforce its private right. The suit also is for a declaration of the plaintiff' s title and for possession thereof and is, therefore, not a suit for one of the reliefs mentioned in S. 92 of the Civil P. C. In either view, this is a suit outside the purview of S. 92 of the said Code and, therefore, the said section is not a bar to its maintainability.' ' It was also held in the aforesaid case that when the Shebait acts adversely to the interest of the idol then even a worshipper can file a suit, " the reason being that the idol is in the position of a minor and when the person representing it leaves it in a lurch, a person interested in the worship of the idol can certainly be clothed with an ad hoc power of representation to protect its interest. It is pragmatic, yet a legal solution to a difficult situation." In the aforesaid case the Supreme Court followed its earlier decision reported in AIR 1952 SC 143, Pragdasji Guru Bhagwandasji v. Ishwarlalbhai Narsibhai.;