(1) This is an appeal against the judgment of the Subordinate Judge, Tenali in O.S. No. 21 of 1959, dismissing the suit. The plaintiffs are the appellants. The suit was filed under Section 92, C.P.C. seeking reliefs in respect of an alleged charitable trust endowed for the benefit of all the villagers of Davulur, Thumulur and Kollipara villages. The subject-matter of the alleged charitable trust was a tank in the village Davulur bearing Demarcation No. 432/1, an extent of Ac. 3-93 cents. The 1st plaintiff is of Davulur; and 2nd plaintiff is of Thumulur, the 3rd plaintiff is also of Davulur; and the 4th plaintiff is Kollipara.
(2) The plaintiffs alleged that they were interested in the tank as it was a charitable trust endowed for the benefit of all the villagers of Davulur, Thumulur and Kollipara villages. The tank was dedicated for the benefit of the villagers of the said villages. It was endowed to the public about sixty years ago. On account of the 1st defendant's mismanagement for over ten years, the tank was getting silted up. A part of the tank, which got silted, was being cultivated and the income therefrom was being realised by the 1st defendant. Alleging mismanagement and misappropriation, the plaintiffs sued for removing the 1st defendant from the management of the trust and for framing a scheme for proper administration of the same by appointing new trustees and giving directions as were necessary. (The suit was laid on 30-3-1959).
(3) The 1st defendant is a Viswabrahmin of Davulur who was in management of the tank, which is the subject-matter of this suit. He denied that the suit tank was a public charitable trust dedicated for the benefit of the villages of Davulur, Thumulur and Kollipara. According to him, it was the property of the Viswabrahmin community residing in Davulur village and that community is interested in the tank and it is their private property. Paragraph 8 of the written statement sets up the main defences to this action:
'The suit property, as also the adjacent S. No. 432/2 is the private property of the Viswabrahmin community of Davulur village, partly used as a burial ground and partly used as a tank and partly under cultivation. The tank was dug with their own funds for their exclusive use in performing the obsequies and at the time of burial and other ceremonies adjacent to their burial ground. It was never dedicated to the public for public use. The public have no right therein and are never using it at any time as of right. A few fugitive stray and permissive acts of user do not create any rights.'
(4) The 2nd defendant in the suit is the Village Panchayat, represented by its President. It filed a written statement supporting the plaintiff.
(5) On these pleadings, the issues set down for trial were these:
1. Whether the suit property is a charitable trust or private property of the Viswabrahmin community?
2. Whether the plaintiffs have any interest in the suit property and if not, whether they have any locus standi to file this suit?
3. Whether the alleged mismanagement of the trust by the 1st defendant is true; if so, whether the 1st defendant is not liable to account?
4. Whether the 2nd defendant is a necessary or proper partly to the suit?
5. Whether the suit is bad for non-joinder of Viswabrahmin community in Davulur village?
6. To what relief?
(6) The findings on the said issues were: that the suit tank is the private property confined to the Viswabrahmin community of Davulur; that the plaintiffs have no locus standi to file the suit; that the 1st defendant is not liable to account to the plaintiffs who were not Viswabrahmins and who are only members of the public at large; that the 2nd defendant is not a necessary or proper party to the suit; and that the suit was bad for non-joinder of the Viswabrahmin community of Davulur as party to the suit. In accordance with the said findings, the suit was dismissed.
(7) It is seen that the material issues are issues 1 and 2. The suit having been laid under Section 92, C.P.C., it may be appropriately recalled that that section contemplates a suit.
'in the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust.'
That makes it plain that the section relates to those charities only in which the public are interested. The endowment must be for a public purpose of a charitable nature and the beneficial interest must be vested in the public in general or a considerable section thereof. The distinction between a private and a public trust, as observed by the Supreme Court in Deoki Nandan v. Murlidhar, : 1SCR756 is that
'Whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained, in the latter they constitute a body which is incapable of ascertainment.'
When there is a deed of endowment, the decision whether the trust is public or private must turn on the construction of the deed, aided by such considerations as are admissible in law. But, where there is no deed, as in this case, regard must be had to repute, usage of the subject-matter concerned and other circumstances. The word 'trust' is used in this section, not in any technical sense and would include Hindu or Muhammadan religious endowments, Vide Sarat Chandra v. Rabindranath, : AIR1957Cal11 .
(8) It may be started that in this case, there is no deed of endowment as such. In the plaint, paragraph 8, it is stated that the suit tank was endowed to the public some sixty years back, about which however, there is no evidence in support of this pleading. The matter is left to be decided on evidence of user primarily and with reference to prior litigation in respect of the suit tank. I would therefore address myself to the question whether the suit tank was endowed for a public purpose.
(9) Before I discuss the evidence, it would be appropriate to understand the terms 'user' and 'usage'. In the ordinary sense of the word, 'user' means 'the act of using'. But the term 'usage' which is a course of user, has a positive meaning in law. In Bouvier's Law Dictionary, third edition, volume at page 3377, 'usage' is explained is 'uniform practice'. It is further said that 'A usage must be established; that is, it must be known, certain, uniform reasonable and not contrary to law; but it may be of very recent origin.' In this case, it has therefore to be seen if a dedication to the public as set up in the plaint could be interfered from the evidence given of the user of the tank.
(His Lordship discussed the evidence of plaintiffs witnesses and some of the witnesses of the defendant and proceeded:)
(10-22) From the evidence of D.Ws. 1 to 6, it emerges that the Viswabrahmins were using the tank exclusively after cremating their dead in the burial ground adjacent to the tank, and that cattle drank water at the suit tank in summer and that Viswabrahmins never obstructed anybody when cattle were brought to the suit tank for drinking water. The learned counsel, Sri A.L. Narayana Rao, has argued that these are understandable as permissive acts of sympathy for the thirsty animals in summer and that it would be hazardous to infer a dedication of the tank for cattle from this evidence. I am inclined to accept this comment about the evidence of witnesses who have said that cattle drank water at the tank during summer. It is of importance to note that the defence witnesses belong to the several villages referred to above and have in one voice sworn that they had no interest in the tank and that it was the exclusive property of the Viswabrahmins of Davulur. This evidence is comparatively disinterested and more accords with the probabilities of the case. I agree with the learned counsel that from the fact that cattle drank water at the tank during summer or at other times, a legitimate inference cannot be drawn that the tank was dedicated for the use of cattle. This is not the case which was set up in the plaint, be it noted that there was not a whisper in evidence of the alleged endowment of the suit tank to the public some sixty years back. It is also relevant to notice that when the commissioner inspected the tank in January, 1961, he found no traces left of cattle drinking at the tank regularly.
(23) I pause here to notice that the usage, if any, which was spoken to in evidence, was neither certain nor uniform.
(24) I now pass on to a consideration of the prior litigation. O.S. No. 12 of 1945 was a suit filed by the 1st defendant and his father on their behalf and on behalf of the Viswabrahmin community of Davulur in the District Munsif's Court, Tenali for evicting one Peter and Luther from the suit tank on which they had trespassed. They had cut the bunds and filled a part of the tank for using it for cultivation. The final decision in the case was in favour of the Viswabrahmins. In second Appeals Nos. 1756 and 2586 of 1948 dated 21-2-1952 (Exhibit B-13), the right of the Viswabrahmin community in the village of Davulur to the suit tank was recognised and they were granted a decree for evicting the trespassers, Peter and Luther. The Government was also impleaded as a party to that suit. This is relied on by the 1st defendant as a transaction or an instance under Section 13(a) and (b) respectively of the Indian Evidence Act that the Viswabrahmins' right to the tank in question was recognised. It seems to me that this can be relied on for the said purpose. But while the learned counsel for the appellants-plaintiffs did not dispute the legal effect of this judgment in O.S. 12 of 1945 as finally decided in the High Court, he placed reliance on certain allegations in the plaint (Exhibit A-8) filed in that suit, O.S. No. 12 of 1945, as supporting the case of the present plaintiffs that the tank was for a public purpose. The allegations referred to are these:
'The water in the tank was being used for the obsequies of the Viswabrahmin community and also by the general public of Davulur, Thumulur and Kollipara villages being central to all of them.
By their acts of high handedness (referring to trespass by Peter and Luther) public of the 3 villages noted above in general and Viswabrahmin community in particular for whose benefit the tank was primarily intended to be a charitable endowment, were deprived of the use and benefits of the said tank and were put to irreparable loss and inconvenience.'
(25) At the outset, I have to say that these are only certain parts of the plaint and it is a settled rule that a plaint has to be read as a whole. If the plaint is read as a whole, then it cannot be understood as an assertion that there was a dedication of the tank to the public and the public had a right of user as such. Further, the result of the suit was that the right of the Viswabrahmin community as exclusive owners of the tank had been recognised. I do not therefore think that the case of plaintiffs is any the better by a reference to these pleadings. Further, Sri Narayana Rao has invited my attention to a Bench decision of the Bombay High Court in Ramabai Shriniwas v. Govt. of Bombay, AIR 1941 Bom 144, where it was held thus:
'A party is not bound by an admission in his pleading except for the purposes of the suit in which the pleading is delivered. It frequently happens that a party is prepared in a particular suit to deal with the case on a particular ground and to make an admission, but that admission is not binding in any other suit, and certainly not for all time.'
It seems to me that the correct legal position has been explained by the learned Judges. But, even otherwise, on a reading of the plaint as a whole it does not appear that any such dedication to the public was either alleged expressly or by implication.
(26) Reliance is also placed on the results in a batch of suits. O.S. Nos. 245, 246, 247 and 248 of 1909 laid before the Additional District Munsif, Guntur by the Viswabrahmins of Davulur (It may be recalled that they were of the Vangipurapu family) against the Government and the assignees of the Government setting up the suit tank as their private property and set apart by them for purpose of charity as mentioned in the plaint. It would appear that the Government, in the view that the suit tank belonged to them, had assigned parts of it to the defendants in the suits. The suits were compromised by the Government and the compromise decree passed in O.S. No. 245 of 1909 is marked as Exhibit B-9 dated 2-9-1910. The terms of the compromise in Exhibit B-9, in so far as they are relevant, may be usefully extracted here:
'1. That in respect of the tank situate in the lands shown as A, B, C, D and the place shown as 'E' which exist as one entire area and forming the subject matter of the suits O.S. Nos. 246, 247 and 248 of 1909 and this suit wherein plaintiffs have the said Dharmakartutvam (trusteeship) the said Dharmakartutvam shall stand confirmed.
2. That if the plaintiffs should use the tank as 'Dharmacheruvu' (Charitable tank) free of assessment they shall not have any obstruction at any time.
3. That if the plaintiffs should effect repairs to the said tank or if the deceased members of the plaintiff's community should be burried on the bunds of the said tank and Samadhis (tombs) erected, neither the 2nd defendant nor the other defendants shall cause any obstruction to the plaintiffs.
4. That so long as the suit tank is used as a charitable tank the plaintiffs shall not be liable to pay any assessment.
5. That inasmuch as the 2nd defendant has cancelled the grand made to the 1st defendant in respect of the suit land, the rest of the defendants should deliver possession of the suit site together with the said tank with the aforesaid terms.
6. That in case the plaintiffs should so obtain possession the 2nd defendant should not raise any obstruction whatsoever.'
The 2nd defendant in the suit was the Secretary of State for India in Council, represented by the Collector, Guntur. This would show that the Government had recognised the Viswabrahmin community's right to the exclusive user of the tank. It would also show that the Government had cancelled the assignments showing that the right of the Viswabrahmin community to the exclusive user of the tank was recognised and that is relevant under Section 13(a) and (b) as a transaction or an instance where the right was recognised.
(27) But Mr. Sarma for the appellants has argued that Exhibit A-1, the certified copy of the judgment in O.S. No. 246 of 1909, shows that the suit was dismissed as against the other defendants, that is, the assignees of the Government, and that the first issue was found against the plaintiffs. The first issue was this:
'Is the plaint land the private property of plaintiffs and his ancestors and set apart by them for purposes of charity as mentioned in the plaint?
The first issue was found against the plaintiffs. The concluding portion of the judgment in the suit is this:
'In the result, the suit is dismissed with costs, the compromise between the plaintiffs and the 2nd defendant not affecting the 1st defendant's rights. The 1st defendant will get his costs from the plaintiffs. Pronounced in open Court this 14th day of September 1910.'
The legal effect of this has now to be discussed.
(28) This is a judgment in a suit filed by the Viswabrahmin community against the State and its assignees. The State compromised recognising the right of the plaintiffs viz., the Viswabrahmin community, to the tank. With regard to the assignees, the suit was dismissed. It is easily seen from the terms of the compromise (Exhibit B-9) extracted supra that the State had cancelled the assignments made to the assignees. Obviously, therefore the assignees had no rights of their own as against the plaintiffs. The dismissal of the suit as against the assignees, who had no independent right of their own apart from the assignment relied on by them, did not apparently fit in with the compromise entered into by the State. But that, however, does not detract from the effect of the compromise and the recognition of the right of the Viswabrahmin community in that suit. It falls to be noted that the judgment is only relevant under Section 13 of the Indian Evidence Act and that no question of Res Judicata arises in this case. I cannot therefore persuade myself to believe that the judgment (Exhibit A-1) is derogatory of the plaintiffs' right asserted in this suit.
(29) Thus, to put the matter compendiously: (1) The suit tank is known as Kamsaligunta. Normally, it may be supposed that it has a connection with the Kamsalis of the village. (2) It abuts the burial ground of the Kamsalis of the village, which is a part of the same survey number, 432. The burial ground is exclusively for Viswabrahmins. (3) The tank was being managed exclusively by the Viswabrahmins to the knowledge of others. (4) It was only the Viswabrahmin community which had filed suits when assignments of the tank were made by the Government and when Peter and Luther trespassed and dug up bunds and filled up the tank and were in unlawful occupation for nine or ten years. It is not in evidence that any villager came forward as interested in this tank and as affecting his rights in the tank when manifestly the tank was being assigned away or trespassed upon. The results of the suits, discussed by me lend support to the view that the tank was a private trust of the Viswabrahmin community of Davulur. (5) The plaintiffs set up a case of endowment of the tank sixty years back and made no mention of the purpose of the endowment. At the trial, the evidence did not bear out an alleged endowment to the villagers sixty years back; and the user thereof whittled down to one of cattle drinking at the tank during summer, (6) The 1st defendant had a specific case that the tank was meant for the Viswabrahmin community to facilitate the performance of obsequies after burying their dead in the abutting burial ground and this has been spoken to in evidence by disinterested witnesses of the villages. (7) The mere fact that the cattle strayed towards the tank in summer and that the Viswabrahmins did not drive them away would be insufficient to found a dedication for cattle. In the earlier part of the judgment I stated that I am inclined to agree with the learned counsel, Sri. A.L. Narayana Rao, that it could have been an act of sympathy for the cattle that they were not driven away from water when they were thirsty. (8) It is also seen from the commissioner's report that the alleged regular use by the cattle of the three villages is not borne out by any traces left at the tank at the time of his inspection in January, 1961.
(30) For these and other reasons which I have mentioned in the judgment, I find myself unable to uphold the contention that the evidence in the case is sufficient to found that the suit tank was an endowment for a public purpose and that the plaintiffs have an interest therein.
(31) It is only on the basis of the suit tank being public trust that a suit can be laid under Section 92, C.P.C. The plaintiffs having failed in their case that it was a public trust, I have also to affirm the finding of the learned Subordinate Judge that they have no Locus Standi to file the suit. The learned counsel's attack on the findings on the two issues having failed, the dismissal of the suit by the Court below is affirmed.
(32) No other points are raised before me.
(33) The appeal therefore fails and is dismissed with costs.
(34) Appeal dismissed.