- (1.) This is defendants' revision arising out of an order dated 12-8-1987 passed by the learned District Judge, Varanasi granting leave under S.92 of the C.P.C. to institute a suit against the applicant.
(2.) On 13-9-1980 Rani Bed Saran Kuari widow of Raja Keshaw Saran Shah executed a deed of endowment whereunder she transferred Taluq Chandauli, Kothi, garden and land to the idols installed in the temple. In order to benefit the ends of her husband and herself she gave a specification of various expenses on the specified objects and further provided that Shivala, as specified in the deed, shall be maintained for ever and that she and heirs and successors of the Agori Barhar Raj will be bound by the same. A copy of the deed has been filed as Annexure-1 along with the counter-affidavit. For the purposes of the present case only paras 6 and 9 are relevant whose English translation is being quoted below : (refer to page 119 of the Paper Book prepared by the High Court in First Appeal : No. 36 of 1943, which was placed before this Court by the counsel for the applicant ). "Paragraph No. 6 :- Just as I stay in the enclosure of the Shivala in my lifetime, in the same way my successors and all the Hindu public of the Raj belonging to Pargana Agari Barhar and other relatives of Barhar estate, such as the Maharajah of Basti, the Maharajah of Bhinga, the Maharajah of Bijaipur, the Maharajah of Khajuragaon, and Maharajah of Manda, the Maharajah of Deonga, the Maharajah of Najholi, the Maharajah of Nahson, the Raja of Deora, the Raja of Nagath and the Maharajah of Dumraon shall be empowered to stay there whenever they come to Kashi for a Sojourn or on a pilgrimage. It shall be necessary to observe the respect and honour due to the Shivala. In the same way it shall be incumbent upon the Pujari and the other employees attached to the temple to respect and honour my successors and relative like myself and others according to the status. Paragraph No. 9 : If there should arise any defect in the management specified above or in case my successors and representatives of the Barhar estate should not make proper arrangement for the protection, and management and maintenance of alms house and businesses referred to above or in case the arrangements made by them should be objectionable and should not (sic) be contrary to the object (one word illegible) and not (sic) according to the wishes of me the executant, the persons who have any concern with the property dedicated to the Shivala, with reference to this document or those who may be benefited by the existence and enforcement of the aforesaid arrangements, and the Maharajah of Benares shall have power to seek remedy in the proper manner and according to law through the officer of the time and the court, to get any competent and capable person appointed as manager and Mutawalli of the waqf property and Shivala or to obtain the dismissal of such appointed persons as may become man of bad character and incapable or may not perform the duties entrusted to them according to my wishes, and to get some capable person appointed in his place. Moreover, in exercise of my powers and proprietary title enjoyed by me the executant in the waqf property and the Shivala, I the executant do further covenant and wish that besides the aforesaid persons all the members of the Hindu religion on whom respect and worship of the Shivala are obligatory shall, in case they find after my lifetime any proceeding of management relating to the Shivala or the waqf property, contrary to my wishes and objects and the contents of this document, have the power, in a body or individually, to find means to remove the objectionable points through court or other necessary proceedings that may he required according to the law in force at the time." Suit No. 422 of 1986 has been filed by five plaintiffs against the defendant-applicant. Along with the plaint an application under S.92, C.P.C. dated 5-11-1986 was also filed for leave, which was granted by the learned District Judge, Varanasi on 12-8-1987 against which this revision has been filed."
(3.) Heard Sri Keshri Nath Tripathi, learned counsel for the defendant-applicant and Sri V. P. Misra, learned counsel for the plaintiff-respondent. Sri Tripathi raised the following points : - 1. The plaintiffs-respondents are not the persons interested in the trust in question and as such have no right to sue. 2. The present suit has been filed on account of illwill and grudge against the defendant-applicant. 3. Earlier Suit No. 4/83 was also filed for the same relief which was dismissed on 7-8-1986 by the court of 2nd Additional District Judge, Varanasi and as such the present suit was barred. 4.The suit as framed was not maintainable under section 92, C.P.C. 5.There was no application of mind by the learned District Judge while deciding the controversy. I take up the first question. Whether the plaintiffs-respondents have no interest in the trust or not." Paragraph 6 of the deed provides that the successors and all the Hindu public of the Raj belonging to Pargana Agari and Barhat Raj and other relatives of Barhat estate mentioned in the said paragraph will have a right of stay in the temple. Paragraph 9 of the deed provides if there arise any difficulty in the management and maintenance of alms house, and business referred to in the deed or arrangement, was not being done according to the wishes of the executant, the persons who have any concern with the property dedicated to the Shivala with reference to the documents shall have power to seek remedy in the proper manner. In this connection great emphasis has been laid by Sri Tripathi on the word 'and' in the tenth line which has been used in the following way : -- "The persons who have any concern with the property dedicated to Shivala with reference to this document or those who may be benefited by existence and enforcement of the aforesaid arrangement, and the Maharajah of Benares shall have power to seek remedy in the proper manner........";