V.K. Mehrotra, J.
1. This is a defendants' second appeal who have lost in both the courts below.
2. Anand Swarup Dutalish, Advocate, Umesh Chand Dublish, his father Shanti Sharan, and Shiv Mahadeo Mandir situate in mohalla Munnalal Qasba Mowana Kalan in District Meerut filed the suit out of which the present appeal arises, as plaintiffs Nos. 1 to 4. They impleadedBishambhar Sahai, father of appellant Vidya Sagar Sharma; Vishnu Sahai; Janardan Sahai and Keshar Sharan Sharma sons of Pandit Shiv Datt Sharma residents of the same Mohalla as defendants in the suit.
3. The case of the plaintiffs was that one Munnalal, the ancestor of plaintiffs Nos. 1 and 2 constructed a temple known as 'Shiv Mahadeo' temple in Mohalla Munnalal and dedicted the property in dispute in the suit to the idol (plaintiff No. 4) to which it belongs. The temple, which is a very old construction and existed even in the year 1907, was for worship by the Hindu community in general. The house of the defendants, who were acting as Pujaris of the temple since the time of the ancestors of the plaintiffs Nos. 1 and 2, was situate to the west of the temple across the road. Plaintiff No. 1 visited the temple on February 8, 1967 in connection with thirteenth day ceremony of a member of his family Parmatma Saran Dublish when he noticed that the defendants had illegally brought a portion of the land of the temple to their personal use. They had made unauthorised constructions including a wall and had opened up a new gate as well. The members of the Hindu community and the worshippers were, thus deprived of the use of the temple land in its entirety.
4. The suit was filed in a representative capacity under Order 1, Rule 8, C.P.C. after an application moved in that regard was allowed by the court. In this suit it was prayed that the defendants be restrained through permanent injunction from using any portion of the temple property as their personal property and further be directed by mandatory injunction to remove the unauthorised constructions set up by them.
5. The defendants set up title in the suit property in themselves and claimed that the temple had been constructed by their ancestors and was their private temple. It was denied that the ancestors of the plaintiffs either constructed the temple or that the plaintiffs were ever in management thereof. It was also denied that the defendants or their ancestors were in occupation of the temple and its property as Pujaris. They also denied that they had caused damage to the temple. In the alternative, it was also pleaded that assuming that the property in suit was a public charitable trust, the suti, as framed, was not maintainable as it was not brought in accordance withSection 92, C.P.C. The right of the plaintiffs to maintain the suit was questioned. Some other pleas were also taken. The trial court framed the following issues:
(1) Whether the entire disputed land belongs to the idol in question?
(2) Relief if any.
(3) Whether plaintiffs are not entitled to maintain this suit for the reasons disclosed in para 28 of the written statement?
(4) Whether the suit is barred by Section 92 of the C. P. C.?
(5) Whether the suit is barred by estoppel?
6. In respect of the first issue, it held after discussing the oral and documentary evidence on record at great length that the property in suit belonged to the idol and not the defendants. In respect of issue No. 4 it held that having regard to the nature of the relief sought, the suit could not be said to be governed by Section 92, C.P.C. Noticing that there was no evidence on behalf of the defendants in respect of issue no. 3 and that from the evidence adduced on behalf of the plaintiffs, it was clear that they were interested in the temple in suit as members of the public, it held under issue No. 3 that the plaintiffs were entitled to maintain the suit. Similarly, it found that the defendants failed to lead any evidence on issue No. 4 which had, consequently, to be answered against them and that the suit deserved to be decreed. It, consequently, directed the defendants to remove the unauthorised constructions within a period of a month failing which the plaintiffs were held entitled to get it done through court. It also restrained the defendants from interfering with the user of the property in suit by the worshippers of the deity. The scaled plan map was directed to form part of the decree.
7. The lower appellate court upheld the decision of the trial court. It overruled the objection raised on behalf of the defendants about the competence of the plaintiffs to maintain the suit and to the maintainability of the suit in the absence of proceedings under Section 92, C.P.C. It upheld the plaintiffs' claim that the land in suit was property dedicated to the temple which was constructed by the ancestors of plaintiff No. I. The claim of the defendants to be the owners of the property or of the construction by their ancestors of the temple was negatived byit. Like the trial court, it also found that the defendants had made unauthorised constructions and were guilty of using the property belonging to the idol as their own. It confirmed the trial court decree. Aggrieved, the defendants have approached this court in the present second appeal.
8. Sri Rajeshwari Prasad, who has appeared as a counsel for the defendant-appellants, has argued that the suit, admittedly, not having been filed in the name of the idol was not maintainable and that it was barred under Section 92, C.P.C. The plaintiffs being Arya Samajist had no right to bring the suit in a representative capacity under Order I, Rule 8, C.P.C. and, lastly, that the finding about the ownership of the temple recorded in favour of the plaintiffs on the basis of oral evidence alone was not sustainable, inasmuch as, admittedly, the temple was constructed over a hundred years ago and that question should, therefore, not been gone into by the courts below.
9. As far as the first submission of the appellant's counsel is concerned, it is noticeable that the trial court under issue No. 1 framed by it, namely, 'whether the entire disputed land belongs to the idol in question' concluded in favour of the plaintiffs. A perusal of the judgment of the trial court shows that the question as to whether the frame of the suit was defective, inasmuch as, the idol was not made a plaintiff was not specifically raised before it. The lower appellate court dealt with this objection in the following words:
'There may be a misdescription in the title of the plaint as regards plaintiff No. 4. The suit should have been filed in the name of the idol and not in the name of temple, but no objection to that effect was raised and for all intents and purposes it has to be presumed that plaintiff No. 4 in this case is the idol Sri Shiv Mahadeo installed in the temple situated in mohalla Munnalal, and was suing through Sri An and S war up Dublish, plaintiff No. 1.........'
The fourth plaintiff, it is undisputed, has been described as 'Shri Siv Mahadeo Mandir situated in mohalla Munna Lal'. It is obvious that what was really intended was that plaintiff No. 4 was 'Shri Shiv Mahadeo' installed in the Mandir. The view of the lower appellate court that there was a mere misdescription in regard to plaintiff No. 4 in the plaint is plainly correct.
10. The submission that the suit was barred under Section 92, C.P.C. again cannot be accepted. That provision as it stood at the relevant time was as follows:
'92. Public charities-- (1) 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, the Advocate-General, or two or more persons having an interest in the trust and having obtained the consent in writing of the Advocate-General, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situate, to obtain a decree-
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee; (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;
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(f) authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require.
(2) Save as provided by the Religious Endowments Act, 1863, (or by any corresponding law in force in a Part B State), no suit claiming any of the reliefs specified in Sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that Sub-section.'
11. A mere look at the reliefs claimed in the instant suit is enough to negative the submission for it is clear that the requirement of Section 92 has to be fulfilled where any of the reliefs mentioned therein alone is sought in the suit. As was observed in Bisnwanath v. Sri Thakur Radha Ballabhji : 2SCR618 :
'It is settled law that to invoke Section 92 of the Code of Civil Procedure, three conditions have to be satisfied,namely, (i) the trust is created for public purposes of a charitable or religious nature; (ii) there was a breach of trust or a direction of court is necessary in the administration of such a trust; and (iii) the relief claimed is one or other of the reliefs enumerated therein. If any of the three conditions is not satisfied, the suit falls outside the scope of the said section.'
And in Harendra Nath v. Kali Ram Das : 2SCR492 'it is well settled by the decisions of this court that a suit under Section 92 is of a special nature which pre-supposes the existence of a public trust of a religious or charitable character. Such suit can proceed only on the allegation that there is, a breach of such trust or that directions from the court are necessary for the administration of the trust. In the suit, however, there must be a prayer for one or other of the reliefs that are specifically mentioned in the section. Only then the suit has to be filed in conformity with the provisions of Section 92 of the Code of Civil Procedure (see Pragdasji v. Ishwarlal Bhai : 1SCR513 . It is quite clear that none of the reliefs claimed by the plaintiffs fell within the section.'
12. The next submission of the appellant's counsel may now be considered. It has been urged that it is for the plaintiffs to establish that the suit, as filed by them, is maintainable under Order 1, Rule 8, C.P.C. and that in spite of permission having been granted to them by the court to file the suit under that provision, after notice and contest, they have to establish during the trial that they had the same interest as the worshippers of the temple before they can be held to have sufficient interest to be able to maintain the suit under that rule.
13. Issue No. 3, namely, 'whether the plaintiffs are not entitled to maintain the suit for the reasons disclosed in paragraph 28 of the written statement?' was disposed of by the trial court by observing that it did not find any evidence on the said issue from the side of the defendants, on whom the burden of proof of this issue lay, and that the plaintiffs had adduced evidence to show that they were interested in the Mandir in suit as members of public. The lower appellate court dealt with the matter in a little greater detail. It noticed the submission made on behalf of the defendants before it that the plaintiffs had not denied that they were not worshippers of the deity or did not belong to the Arya Samaj sect andthat the plaintiffs Nos. 1 to 3, who belonged to the Arya Samaj sect and did not believe in idol worship, were not entitled to sue on behalf of the deity and the suit was, therefore, not maintainable. It observed, in this regard, as follows;
'The entire body of the worshippers and devotees of the idol have been represented by plaintiffs Nos. 1 to 3. The objection that they were Arya Samajists and did not believe in idol worship should have been raised when notices under Order 1, Rule 8, C.P.C. were issued......Neither Bishambhar Sahai (D. W. 1) nor Dharam Singh (D. W. 2) made any statement on oath that plaintiffs belonged to the Arya Samaj sect......... There is nolegal bar in any Arya Samajist Hindu acting as the Manager of a temple though the religious rites of the deity may be performed by a person professing the Sanatan Dharam faith. I, therefore, hold that the plaintiffs have a right to sue and the suit is maintainable.'
14. In G. P. Rao v. B. Patra (AIR 1917 Cal 678) it was observed that 'A suit relating to a public trust should not be brought except with the consent of the Advocate-General, unless the plaintiffs have a special claim or claim a special interest under and by virtue of the trust' and that 'the interest that the plaintiffs have, as members of the public, being not sufficient to enable them to maintain the suit under Section 92, C.P.C. without the consent of the Advocate General, they cannot, by saying that they represent the whole of the Hindu population not only of British India but also of all parts of India lying outside the limits of the Indian Empire, get a sufficient interest to sue apart from Section 92.' In Jugal Kishore v. Khuda Bux : AIR1927All96 , Banerji, J. held that merely because the plaintiffs who were Vaishes were Hindus and the rights of the sweepers and Chamars were contested to use and draw water from a well, they could not be held entitled to bring a suit as a representative suit for 'Order 1, Rule 8, pre-supposes that the person suing must have the same interest as the other persons on whose behalf the suit is instituted.' It was held that the plaintiffs who were Hindus could not be held entitled to sue although they did not belong to the particular sect of persons who were prevented from enjoying the use of water from the well by the action of the defendants.
15. In Ch. Bibhuti Narain Singh v. Maharaja Sir Guru Mahadeo AshramPrasad Sahi Bahadur (AIR 1940 Pat 449) it was observed (at p. 455) as under:
'It is next argued on the pleadings that the plaintiff had sued as representative of the public generally, and not as representative of the villagers alone, and as having some exclusive common interest with the villagers within the meaning of Order 1, Rule 8, C.P.C. The references in the plaint were to the rights of the public generally and not to any particular rights of the villagers, as distinct from the rights of the public at large. Further, it is argued that even had the plaintiff sued as representative of the villagers, he had no common interest with them in the subject matter of the suit as necessitated by Order 1, Rule 8, and the suit must fail on that ground. With this last contention I cannot agree, because it seems to me that, if there are any special rights in these village pathways existing in the villagers, as distinct from the public generally, the landlord of the village may well be said to share this special interest, even though he be not a resident of the village, for as owner of the village he will share the villagers' interest in the public lands of the village.'
And, later (at p 465):
'Order 1, Rule 8 C.P.C. is merely an enabling provision. It provides no new right of suit but merely a right of representation where a right of suit already exists, and that right of suit is provided by the invasion of the special rights of the limited class represented ............... It does give a right to suein a representative capacity upon an existing right of suit and that is a right to represent any particular denned section of the public with whom the plaintiff has a special common interest, but not to represent the public generally as a whole. It does not contemplate the issue of notice to the whole world or that the whole world should be bound by the decision in a suit under its provisions.'
It follows from all this that in the case of suits such as those with which we are concerned in these appeals, relating to obstructions to village ways, if the plaintiff does not utilise the special provisions of Section 81, or prove special damage, but purports to sue under Order 1, Rule 8, he must plead and show (1) that he sues not on behalf of the public generally, but on behalf of a limited and clearly defined class with which he has a common interest and a common right of suit; (2) he must plead and show that the path-way in question is not a public highway in the full sense, in which all members of the public who happen to go to the place have equal interest; he must show that it is a way or path of the quasi-public type recognised long ago by Wilson, J. in 15 Calcutta 460 in which the class he represents has got special rights as distinct from those of the public generally.'
16. The general principle about themaintainability of a suit in respect of areligious endowment as contained inparagraph 284 (1) at page 878 in Sir HariSingh Gaur's Hindu Code (IV Edition) isas follows:
'A suit is maintainable by a person interested in an endowment in respect of a civil right concerning it.'
Later, at page 880, it is stated thus:
'In the case of an endowment, whether public or private, law has prescribed a minimum safeguard that no one can sue unless he is at least 'interested' in the endowment.',
and, at page 881', that:
'The 'interest' required may be neither direct nor measurable in money, since it will suffice if it is such as the civil law would consider as sufficient. In so doing the Privy Council considered the fact that the mere fact the plaintiff was the descendant of the founder of a public charity, though in the female line was sufficient to entitle her to sue for the removal of a trustee who had been improperly appointed to manage it............ It is not easy to define the interest that would qualify a person to maintain a suit, since the interest one possesses must differ according to the object and nature of the endowment and his own relation thereto. But the touchstone of his right is his 'interest'.'
17. The suit, in the present case, was filed by the plaintiffs after obtaining permission under Order 1, Rule 8, C.P.C. from the court which was given after notice and contest. The objection of the defendants is founded upon the circumstance that in their replication dated May 14, 1969 arid August 16, 1968, it was not denied by the plaintiffs that they were not the worshippers of the deity and belonged to Arya Samai sect and further that (P. W. 1) Anand Swarup and (P.W. 2) Raghunandan Saran, who were closely related to plaintiffs Nos. 1 and 2, had admitted that he did not believe in idol worship. Further, upon the admission in the cross-examination of Ved Prakash (P. W. 3) that in the plaintiffs familysome members belonged to the Arya Samaj sect while others professed Sanathan Dharma religion. As mentioned earlier in this judgment, the lower appellate court has taken note of the fact that neither Bishambhar Sahai nor Dharam Singh, appearing as witnesses for the defendants, made any statement on oath that the plaintiffs belonged to the Arya Samaj sect. Quite clearly, it is not one of those cases in which it can be said to have been established by the defendants that the plaintiffs were proved to be Arya Samajists. There is no finding either to that effect. As such, the defendants cannot successfully urge, as is being attempted on their behalf by their learned counsel, that the plaintiffs were wrongly held entitled to maintain the suit as having the same interest as the worshippers of the idol so as to be able to bring the suit under Order 1, Rule 8, C.P.C.
18. The finding of the two courts below also is that the temple had been constructed for the idol by Munnalal, whose descendants the plaintiffs were. This also created sufficient interest in them, apart from the one successfully established by them, to be able to sue under Order 1 Rule 8, C.P.C. and to seek an injunction against the wrongful user of the property of the temple by the defendants.
19. It has been observed by the lower appellate court that 'the evidence on record shows that the disputed land was used for growing flower plants to provide sufficient flowers to the worshippers to make offers to the deity. All those plants have been removed and the defendants have constructed walls on the land. When there were no walls, the temple was accessible to the worshippers from all the sides. Thus, their approach to the temple has been restricted. By tethering cattle and storing Kooda, the surroundings of the temple have become insanitary and obnoxious. There is also paucity of open space for the worshippers to sit and meditate. The use of one portion of the land as 'Gher' and residential apartment is again contrary to the purpose for which this land was set apart......... There ishardly any scope for doubt that the unauthorised acts of the defendants have caused continuing and irreparable loss to the idol as well as its devotees and such an injury cannot be compensated for by awarding damages. It is in the fitness of things that the unauthorised constructions should be removed, the land restored to its original condition and the defendants restrained from committing such acts in future.' In view of this observation, it is difficult to accept the further submission of the appellant's counsel that the courts below were not justified in granting an injunction in the case. It may also be added that according to the learned counsel for the plaintiff-respondent, the offending structures stand demolished and removed after the decree in the suit and are no longer present on the spot.
20. The submission on behalf of the appellants also is that since the finding about the ownership of the temple recorded in the case in favour of the plaintiffs rests solely on oral evidence and is in respect of a temple, which was admittedly constructed over a hundred years ago, it should not have been recorded for it was really not necessary for the disposal of the suit and should, therefore, be vacated. It' appears difficult to accept this submission. The defendants joined issue with the plaintiffs about the ownership of the temple and the land adjoining it and claimed title in themselves. They cannot, therefore, be heard to complain about the findings recorded by the courts below about the title to the disputed land, albeit on the basis of oral evidence which alone was led by the parties in the suit, after a finding has been recorded against them. On the plea of the defendants themselves in the suit, the courts below cannot be said to have committed any error in going into this question.
21. In conclusion, it must be held that the appeal lacks merit and deserves to be dismissed. It is, consequently, dismissed with costs.