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Rustam Khan Vs. Ahmad Bux and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Trusts and Societies
CourtAllahabad High Court
Decided On
Case NumberSpecial Appeal No. 109 of 1960
Judge
Reported inAIR1966All163
ActsCode of Civil Procedure (CPC) , 1908 - Sections 92(1); Code of Civil Procedure (CPC) (Amendment) Act, 1956
AppellantRustam Khan
RespondentAhmad Bux and ors.
Appellant AdvocateBabu Ram Avasthi and ;S.B.L. Gaur, Advs.
Respondent AdvocateN.P. Asthana and ;N.B. Asthana, Advs.
DispositionAppeal dismissed
Excerpt:
trust & societies - property - section 92 (1) (cc) of code of civil procedure, 1908 - removal of trustee - dispossession from trust property - held, removal of trustee includes dispossession from trust property. - - a scheme will be set up for better and proper management of the waqf property. the first submission, therefore, in our opinion is not well founded and is rejected. they expressly said that 'a scheme will be set up for better and proper management of the waqf property' and the sunni central waqf board will be asked to appoint suitable mutawallis for the waqf......or mutawallis for the waqf. a scheme will be set up for better and proper management of the waqf property. the plaintiffs will have their costs from the defendants.' 3. to use the words of agarwala and asthana, jj., 'the dispute is about a plot no. 150, which was at one time numbered as 98, measuring 1 bigha and 5 biswas, in village rasul-pur'. according to the plaintiffs, 'this plot was a grave-yard dedicated for the purpose of burying the dead of the naddaf community in village rasulpur by its zamindar........'. the appellant was the mutawalli of the waqf of the graveyard. the allegation in the plaint filed in the suit under section 92, c. p. c. was that the defendants appellants had started appropriating the grave-yard for their own purpose by building their own houses and a.....
Judgment:

Jagdish Sahai, J.

1. This special appeal is directed against the judgment of N. U. Beg, J., dated 4-2-1960, dismissing Execution First Appeal No. 346 of 1955 filed by the judgment-debtor-Rnstam Khan.

2. Rustam Khan, the judgment-debtor-appellant was a defendant in a suit filed under Section 92, C. P. C. by the respondents-decree-holders in the Court of the District Judge, Agra. The learned District Judge dismissed the suit. Against this decree First Appeal No. 3.54 of 1947 was filed in this Court which was allowed by Agarwala and Asthana, JJ. on 20-4-1953. The operative portion of the judgment of the learned Judge reads:

'The result, therefore, is that we allow the appeal, set aside the decree of the Court below and decree the plaintiffs' suit with costs in both the Courts. The defendants are removed from the office of mutawallis. The Sunni Central Waqf Board will be asked to appoint suitable mutawalli or mutawallis for the waqf. A scheme will be set up for better and proper management of the waqf property. The plaintiffs will have their costs from the defendants.'

3. To use the words of Agarwala and Asthana, JJ., 'the dispute is about a plot No. 150, which was at one time numbered as 98, measuring 1 bigha and 5 biswas, in village Rasul-pur'. According to the plaintiffs, 'this plot was a grave-yard dedicated for the purpose of burying the dead of the Naddaf community in village Rasulpur by its zamindar........'. The appellant was the mutawalli of the waqf of the graveyard. The allegation in the plaint filed in the suit under Section 92, C. P. C. was that the defendants appellants had started appropriating the grave-yard for their own purpose by building their own houses and a bangle factory thereon and that they were mismanaging the Wakf property with the result that they were not fit to remain the mutawallis thereof. The plaintiffs prayed for the removal of the defendants from the office of the mutawallis, for the Sunni Central Waqf Board to be asked to prepare a scheme for the management of the waqf property, and for the vesting of the trust property in tne newly appointed mutawallis. When execution of the decree was taken out, the judgment-debtor-appellant, inter alia, objected that the decree was not executable. This objection was founded upon the allegation that the relief for possession was not claimed in the suit under Section 92, C, P. C. nor was it allowed by the High Court and that an earlier order passed in execution proceeding by the District Judge, i.e., dated 11-8-1953 purported to allow this objection. It may be mentioned that after the decree was passed by this Court in First Appeal No. 154 of 1947, the Sunni Central Waqf Board appointed mutawallis and it is these mutawallis who have put the decree in execution. The learned District Judge posed the following two questions for decision:

1. Are the mutawallis entitled to take out execution for possession

2. How does the order dated 11-8-1953 affect the maintainability of the present application ?'

The learned District Judge decided both the points against the judgment-debtor-appellant and he (judgment-debtor), therefore, filed the Execution First Appeal No. 346 of 1955 in this Court. The grounds taken in the Execution First Ap-peal were: firstly, ''there being no direction in the decree of the Hon'ble High Court (which is being executed) for possession of the properties, the relief of possession in the execution application should have been disallowed' and secondly, that 'the execution court cannot go behind the decree and so cannot give the relief of possession, neither prayed for in the suit, nor granted by the High Court; possession cannot be given to the respondents in execution till the decree under execution is amended.' One of the grounds taken was that the order of the execution court dated 11-8-1953 operated as a bar of res judicata to the maintainability of the prayer for possession being delivered to the mutawallis. Tt appears from the judgment of Beg. J. that the only ground urged before him was 'that there was no direction in the decree for delivery of possession' Beg, J., while dealing with the submission observed:

'A perusal of the decree shows that there was a provision for removal of the existing mutawallis and for the vesting of the property in a new one. The process of removal or the previous mutawallis and replacement by a fresh ones involves the removal of the former set and their substitution by a new set of mutawallis. The objection appears to have been made only with a view to prolong the matter.'

It does not appear that any other submission Was made before Beg; J.

4. We have heard Survasri Section B. L. Gour and B. R. Avasthy for the appellant and Dr. Asthana and Sri N. B. Asthana for the respondents. The following two submissions have been made on behalf of the appellant:

(1) That on a proper consideration of the decree passed by this Court in First Appeal No. 154 of 1947 dated 20-4-1953, it must be held that the appellant cannot be dispossessed from the Waqf property and the mutawallis appointed by the Sunni Central Waqf Board cannot take possession of the same and

2. that under the provisions of Section 92, C. P. C., as they stood at the relevant time, before the U. P. or the Central amendment was made no decree for dispossession of a delinquent mutawali or trustee could be passed, and all that the Court could do was to terminate the status of the mutawalli, leaving it to the newly appointed trustees to file a suit in a court of law for possession over the waqf property.

5. We have carefully perused the judgment of Agarwala and Asthana, JJ., dated 20-4-1953 and we find ourselves in complete agreement with Beg, J. that the decree passed by them is comprehensive enough to include not only the removal of the existing judgment-deb-tor-appellant and other mutawallis but for the vesting of the property in the new mutawallis appointed by the Sunni Central Waqf Board. The first submission, therefore, in our opinion is not well founded and is rejected.

6. So far as the second submission is concerned, we have found it difficult to accept the argument advanced on behalf of the judgment-debtor appellant that the word 'removal' does not include in its ambit 'dis-possession.' It is true that by means of Central Act No. 66 of 1956, in Sub-section (1) of Section 92, after clause (c), the following clause has been inserted, namely:--

'(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property.'

7. It is contended on behalf of the appellant that it is a new power given to the Court and before 1956, when this provision was inserted in Section 92 of the Code of Civil Procedure, the Courts had no jurisdiction to dispossess a trustee whom they had removed from the trust property and for that purpose a fresh suit had to be filed. We have seen the aims and objects of the original Bill of Act 66 of 1956, Clause 10 reads:

'10. In Sub-section (1) of Section 92 of the principal Act, after clause (c), the following clause shall be inserted, namely:-- '(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to a new trustee.'

The reason why clause 10 was enacted is given in the Select Committee Report which reads:--

'Section 92 relates to suits with regard to religious and charitable trusts. There is uncertainty at present as to whether a court can in the same proceeding direct the restoration of possession to the new trustee of the trust properties from the trustee who is removed. In order to avoid fresh suits for such purposes, it is desirable to empower the court expressly to pass a decree directing a trustee who has been removed to deliver possession of the trust property to a new trustee.'

8. Even though the aims and objects of the provisions of the Bill cannot be looked into for interpreting an Act, they have been considered ro be relevant for finding out reasons which prompted the amendment. It is obvious that clause '(cc)' was added to Section 92(1) G. P. C. by way of abundant caution in order to make express what appears to have been implied. The object was not to introduce a new provision or to enlarge the existing powers of a court administering the provisions of Section 92, C, P. C. In our judgment, therefore, the fact that the Legislature thought it fit to introduce clause (cc) in Section 92(1), C. P. C., does not necessarily mean that it was a new or additional power which did not exist before. In Sailendra Nath v. Shib Dass, AIR 1944 Oudh 289, it was held by a Division Bench of the Oudh Chief Court that in execution proceedings possession can be given to the new trustees appointed in a suit under Section 92, C. P. C. and that the relief for removal of previous trustees can be given effect to independent of the constitution framed and embodied in the decree. We are in respectful agreement with this view.

9. Reliance was placed on Atchutarama Rao v. Bapanayya : AIR1942Mad748 , on behalf of the judgment-debtor-appellant. Abdul Rahman, J., who decided that case, relied upon the following passage from the judgment of Venkatasubha Rao, J. in Vaithilinga Mudaliar v. Sree Thyagarajaswami Devastanam. Tiruvarur, ILR 59 Mad 751: (AIR 1936 Mad 581):

'The true distinction is, not whether a provision in a scheme decree is directory or declaratory, but whether the provision sought to be executed, is or is not in what is really the scheme part of the decree.'

10. In view of the decree before us, it cannot be said that the prayer in the execution application for dispossession of the judgment-debtor-appellant and other judgment-debtors is really outside the scheme part of the decree. We have already said earlier that one of the reliefs claimed in the plaint in the suit under Sec. 92, C. P. C. was a scheme for the management of the waqf properly with the mutawallis. All the reliefs claimed in the plaint were granted by the learned Judges who decided First Appeal No. 154 of 1947. They decreed the plaintiff's suit with costs without dismissing it in any respect. They expressly said that 'a scheme will be set up for better and proper management of the waqf property' and the Sunni Central Waqf Board will be asked to appoint suitable mutawallis for the waqf.' In the circumstances of the cases, the Madras decision is of no assistance to the appellant's case.

11. Having given the matter our anxious consideration, we are of the opinion that the second submission of the learned counsel also fails.

12. We, therefore, dismiss the appeal with costs.


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