TATIA, J. - (1.) HEARD learned counsel for the parties. The present suit was filed on 22. 10. 80 by plaintiffs Bhawar Lal, Satya Narain, Jatan Lal and Dwarka Das. Plaintiff Bhanwar Lal died on 5. 12. 81, plaintiff No. 2 Satya Narain died on 25. 12. 91, plaintiff Jatan Lal died on 26. 7. 88 and plaintiff Dwarka Das died on 10. 12. 87. The present controversy is with respect to the taking on record the persons who are claiming that right to prosecute the suit devolves upon them. Earlier on an application filed on 5. 3. 82, it is mentioned that plaintiff Bhanwar Lal expired on 5. 12. 81 and one Satya Narain S/o Basu Dev adopted son of Naraindas was appointed as Trustee President and, therefore, name of deceased Bhanwar Lal be struck-off and name of Satya Narain be permitted to be arrayed as plaintiff No. 1. This application was pending for long time and thereafter the application was submitted by defendants on 8. 1. 93 stating that plaintiff No. 1, 3 and 4 Bhanwar Lal, Jatan Lal and Dwarka Das died several years ago and since plaintiff No. 2 Satya Narain also died, therefore, suit stand abated be dismissed. After this application, an application under O. 22 R. 10 CPC was filed by 5 persons i. e. Khamani Lal S/o Gewar Chand, Srigopal S/o Bhanwar Lal, Jhanwar Lal S/o Nath Mal, Ramswaroop S/o Sohan Lal and Bhanwar Lal S/o Dal Chand. This application was filed on 18. 9. 93. The trial court after hearing the arguments of the parties by order dated 6. 10. 94 allowed the application of the applicants mentioned above which was challenged by defendants by filing SBC Revision Pet. No. 45/95 which was decided by this court on 7. 1. 97 and this Court allowed the revision petition with the direction to the trial court to dispose of the applications for substitution in place of original plaintiffs pending before it in accordance with law after providing adequate opportunity of hearing to the parties and in this order, learned Single Judge directed trial court to proceed expeditiouly and thereafter impugned order dated 20. 10. 97 was passed by trial court by which the applicants were again permitted to continue the suit under O. 22 R. 10 CPC. Being aggrieved against the above order dated 20. 10. 97, the appellant-defendants preferred these appeals.
(2.) I have heard learned counsel for the parties and perused the record. The learned counsel for the appellant invited my attention to the para No. 12 of the plaint wherein it is specifically mentioned that suit was filed by the plaintiff as trustee for the disputed property and also pointed out that plaintiffs in original suit, claimed relief of cancellation of orders dated 21. 2. 80 and order dated 6. 3. 79 by which order, the Asstt. Commissioner, Devasthan and Commissioner, Devasthan passed the above mentioned orders of registration of trust. As a consequence whereof, the trust was registered at S. No. 156. The learned counsel for the appellant submitted that suit filed by the plaintiff was in the capacity of the trustee for the property in dispute and the applicants are also claiming that they are elected trustees. According to learned counsel for the appellant, as per Sec. 41 and 42 of the Rajasthan Public Trust Act, 1959, unless appropriate order is passed under the above provisions, no one can be recognised as trustee and for any public trust, according to learned counsel for the appellant, the order passed under Sec. 42 of the above Act of 1959 is given finality in sub- clause (2) of Sec. 42 and, therefore, since the applicants have not obtained any permission or order from the competent authority, therefore, applicants cannot be permitted to be impleaded as party in the suit and since all the original plaintiffs have died, therefore, suit stand abated and cannot be continued. Learned counsel for the appellant further invited my attention to the deed dated 31. 10. 33 which shows that property in dispute already devolved upon the community as a whole and not to the persons of the particular area namely "patti Walo Ki Gali". According to learned counsel for the appellant, in view of deed dated 31. 10. 33, since property already stand vested in the entire community, therefore, the applicants by getting elected from the above "gali" cannot become the trust, hence they are not entitled to continue the suit. According to learned counsel for the appellant, in view of above provisions of Sec. 41 and 42 of the Act of 1959, applicants cannot be permitted to be impleaded in the capacity of trustees. I perused the order passed by this Court dt. 7. 1. 97 in SBC. Rev. Pet. No. 45/95. A bare perusal of order dated 7. 1. 97 shows that the points which were not considered by the trial court and on this count, order of trial court dated 6. 10. 94 was set aside. The trial court was directed to decide the application of the applicants and the matter in accordance with law. Thereafter the trial court after hearing the parties passed the impugned order dt. 20. 10. 97. From the perusal of impugned order dt. 20. 10. 97, it appears that only one point was raised by defendants which was taken note of by the trial court and that too was the contention of defendants that present suit was filed by the plaintiff in their personal capacity and, therefore, with the death of all the plaintiffs, suit stand abated and this is only point decided by the trial court. It appears that it is not the case of the appellants in the arguments here that point which now appellants want to raise, was infact raised before the trial court and trial court has not decided that point which now appellant wants to raise. Even the point which was raised before trial court was contrary to the above stand taken herein today in arguments. It is an admitted case by the plaintiff as well as defendants that present suit is with respect to the property of a trust, none of the parties is claiming personal right or interest in the property. A perusal of plaint clearly shows that the suit was filed by the original plaintiff on the basis of deed dated 31. 10. 33 and relief is also with respect to the declaration that order passed by defendant Nos. 8 and 9 be declared illegal. The entries made in pursuance of the above orders be cancelled and the order dated 9. 3. 76 be restored. This fact clearly shows that entire dispute centres round the property of a trust of a founder, grand-father of Lichmi Chand. The original plaintiffs since based their claim on the basis of deed dated 31. 10. 33 and the present claimants are also claiming that property in dispute, which according to plaintiffs and present applicants is trust property and it vests only in the members of Sunar Community of "patiwala-ki-Gali'. This point will be decided by the trial court after trial of the suit. The only thing happened after filing of the suit is death of all the plaintiffs. If the original plaintiff could have maintained the suit challenging the above orders, then they would have succeeded only in case they would have proved their case according to claim set up in the plaint on the basis of deed of 1933. The applicants since claiming that they are entitled to be impleaded as plaintiffs only in accordance with the provisions contained in deed of 1933, then again the question comes for interpretation of deed of 1933 which is the main subject matter of suit. At this stage, a trial before trial of main issue cannot be permitted. As per reading of a document which only contains recital given by the grand-son of the original person who stated to be founder of the trust, cannot be taken as gaspel truth because the document is yet to be proved and yet to be interpreted after trial. The plaintiffs or applicants will succeed only by showing that they acquired status of trustees or otherwise in the property and they will have to show very many things in the suit, therefore, to continue the suit, if the applicants are come forward on the basis of some source of right which is also subject matter in the main suit and there is no dispute amongst the persons who are coming forward or there is no claim under the above deed of 1933 by any other person, at this stage, it cannot be said that applicants have no right to continue the suit.
(3.) ACCORDING to learned counsel for the appellant, by permitting these persons in the capacity of trustees, it is nothing but recognising the deed of 1933 in the manner to give right to the claimants to claim themselves as trustees. The arguments advanced by the learned counsel for the appellant are absolutely erroneous in the sense that the point in controversy in the main suit is the deed of 1933 and until & unless, a final adjudication is given merely because persons were permitted to be impleaded as party, they were not acquiring the right, title or interest or any other right except the right to continue the suit, therefore, the apprehension raised by the learned counsel for the appellant not well founded. Learned counsel for the appellant has raised an objection on the basis of Secs. 41 and 42 of the Act of 1959. It is clear from the pleadings that defendants No. 8 and 9 are the Asstt. Commissioner, Devasthan and Commissioner, Devasthan, who are the authorities to deal with the application under Secs. 41 and 42. Asking any person claiming under that deed to go to those authorities who have already decided that defendants are to be recognised and to get an order from those authorities i. e. defendant Nos. 8 and 9 is asking to get which is impossible because it is not expected from the defendant Nos. 8 and 9 to pass an order which will be contrary to the order which they have already passed by recognising the defendants as trustees or the persons who have right to manage the property. It is relevant to mention here that when the original plaintiffs have already raised the dispute and were entitled to maintain the suit to challenge the orders passed by defendant Nos. 8 and 9 and which are that is the subject matter of suit before the civil court, then the entitlement of applicants also depend upon the principal dispute and if the trial court after trial comes to conclusion that orders passed by defendant Nos. 8 and 9 are legal and valid, then naturally all the claim of all the claimants will go and when the civil court will decide that orders passed by defendant Nos. 8 and 9 are not legal and the source of right is deed of 1933, gave right to Patti-walo-ki-Gali then consequence will follow, therefore, the everything depends upon the main issue in the suit and the right of applicants cannot be permitted and made dependent upon the decision of one or two of the defendants who are defendant Nos. 8 and 9. It is further relevant to mention here that even if there is challenge to the election of the applicants under the deed of 1933, then the defendants will be free to raise their objections in their written statement, so that a dispute subsequent to the main dispute can be decided by the civil court and if main dispute will be decided against the applicant, naturally they will have no right and in case defendant challenges even the election of the applicants, they may do so in their written statement. Therefore, in view of above discussion, I do not find any force in this appeal and appeal No. 705/97 is dismissed. The another appeal No. 4/97 challenging the order passed in civil original suit No. 24/88, is also dismissed because the point raised by appellant in this appeal has already been decided in above Misc. appeal No. 705/97, and since an additional fact in civil original suit No. 24/88 is that one of the original plaintiff said to be alive, therefore, because of additional ground, this appeal deserves to be dismissed. Hence the appeal No. 4/97 is also dismissed. . ;