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Narayan Bhikaji Khanolkar Vs. Vasudeo Vinayak Prabhu - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtMumbai
Decided On
Case NumberAppeal No. 96 of 1920 and Appeal from Order No. 29 of 1922
Judge
Reported inAIR1924Bom518; (1924)26BOMLR950
AppellantNarayan Bhikaji Khanolkar
RespondentVasudeo Vinayak Prabhu
DispositionAppeal allowed
Excerpt:
civil procedure code (act v of 1008), section 92--temple--hakdara of the temple -suit by some hakdars against persons in wrongful possession for accounts and directions.;the plaintiffs, who were some of the hakdars in the income of a temple, alleged that defendants nos. 1 to 10 were wrongfully managing the temple and appropriating its proceeds. they sued for a declaration that they along with defendants nos. 11 and 12 were hakdara of the temple, for an account of the income received by defendant nos. 1 to 10, and for an order that the defendants should make over the amount of the income received by them to the plaintiffs. a question having arisen whether the suit was governed by section 92 of the civil procedure code:-;that the suit fell within the scope of section 92, of the civil..........and 12 should get from defendants 1-10 or from such of them who will admit that they received the income of dewasthan properties that the amount of income should be settled by taking account.b. the plaintiffs are out of the vahivatdars of the property of the dewasthan hak of the village of khanoli. therefore it should be declared that defendants 1-10, who assert that any one can, without the common consent of all the persons forming the class of hakdars, do the works in connection with the festivities of the dewasthan and take the income of properties, are not so entitled and an injunction should be issued against defendants 1-10 or such of them as claim illegally the right to receive the income, that they should not spend and henceforth take the income.c. if there be against the.....
Judgment:

Lallubhai Shah, Ag. C.J.

1. The question in this second appeal is whether the present suit is barred by the provisions of Section 92, Sub-section (2) of the Civil Procedure Code, that is, whether the suit as framed is within the scope of Section 92. For this purpose it is necessary to refer to the allegations in the plaint briefly and to the prayers. The plaint is rather a long document, but the effect of it is that according to the plaintiffs they and defendants 11 and 12 are really the Hakdars or some of the Hakdars in the income of the temple in question, and that defendants Nos. 1-10 have been managing this wrongfully and appropriating the proceeds of the temple. After referring to their Hak to appropriate the proceeds of the temple, they state the cause of action in this manner in paragraph 8:--

2. On behalf of the Dewasthan and for the benefit of the said Institution, the plaintiffs have brought this suit as those persons are entitled to take the income who are empowered to receive the income of the Dewasthan properties and to spend it and devote it towards the proper expenses of the Dewasthan and plaintiffs and defendants 11 and 12 are the managers and trutees of the Dewasthan properties. Therefore, it is not necessary to make the other Hakdars parties to the suit. Yet if the Court thinks that the other Hakdars are necessary parties, then it should be understood that plaintiffs have brought this suit on behalf of such Hakdars and in respect thereof proclamation should be made in accordance with Order I, rule 8, of the Civil Procedure Code and plaintiffs allowed to conduct the suit.

3. The reliefs claimed by the plaintiffs are these:--

A. It should be decreed that the plaintiffs and defendants 11 and 12 should get from defendants 1-10 or from such of them who will admit that they received the income of Dewasthan properties that the amount of income should be settled by taking account.

B. The plaintiffs are out of the Vahivatdars of the property of the Dewasthan Hak of the village of Khanoli. Therefore it should be declared that defendants 1-10, who assert that any one can, without the common consent of all the persons forming the class of Hakdars, do the works in connection with the festivities of the Dewasthan and take the income of properties, are not so entitled and an injunction should be issued against defendants 1-10 or such of them as claim illegally the right to receive the income, that they should not spend and henceforth take the income.

C. If there be against the plaintiffs and defendants 11 and 12 any objection to the receiving of the amount of the income received by any of the defendants out of defendants 1-10, they should be directed to keep it credited in the name of the Dewasthan.

4. The learned trial Judge held that the suit was barred under Section 92, Civil Procedure Code. It may be mentioned that the suit was filed in the Court of the Second Class Subordinate Judge of Vengurla as an ordinary suit, and not in the District Court as a properly constituted suit under Section 92.

5. In appeal the learned First Class Subordinate Judge who heard the appeal came to a different conclusion and held that the suit was outside the scope of Section 92, and accordingly remanded the suit for disposal on the merits.

6. Defendants Nos. 1, 4, 6, 7, 8 and 10 have appealed to this Court, and it is urged on their behalf that the view taken by the trial Court is right. On the other hand, it is urged that the case really falls in the class of cases of which the decision in Nilkanth Devrao v. Ramkrishna Vithal (1921) I.L.R. 46 Bom. 101, s.c. 23 Bom. L.R. 876 may be mentioned as a type. No doubt it may be a matter of some difficulty to decide as to whether a particular case falls within the scope of Section 92 or not. In the present case having regard to the allegations of the plaintiffs, and the nature of the reliefs, it seems to me that the case really falls within the scope of Section 92. It clearly asks that accounts should be taken with reference to trust property received by defendants Nos. 1-10. Further in effect it also asks for directions as to what should be done with these trust funds. The prayer of the plaintiffs is that the funds should go to the plaintiffs and defendants Nos. 11 and 12, and it is further prayed that if the funds cannot be allowed to go to them, at least a direction may be given that they should be allowed to retain the funds for the benefit of the temple. It is not disputed in this case that there is a trust which is created for the public purposes of a religious nature. Though the position of defendants Nos. 1-10 is not admitted to be that of trustees, or rather they are described as being in the position of persons wrongfully handling the income of the temple, there is the broad fact that at the date of the suit they were in actual management of the temple. Really it is a dispute between the parties as to who are or should be the trustees of the public trust. It is also clear that accounts of the trust property will have to be taken and inquiries made, and directions may have to be given. On the whole it seems to me that the case falls within the scope of Section 92, and the order made by the trial Court appears to be right. I would allow the appeal, set aside the order of the lower appellate Court, and restore the order of the trial Court with costs here and in the lower appellate Court on the respondents.

Fawcett, J

7. I agree. If the plaintiffs had confined the suit simply to a declaration that they were the managing trustees of this temple, and an injunction restraining the defendants Nos. 1-10 from acting as such trustees, then no doubt the case would be outside Section 92, Civil Procedure Code, according to various rulings. But the plaint clearly, in my opinion, comes within Section 92 of the Civil Procedure Code.


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