N.N. Mittal, J.
1. This second appeal arises oat of a suit for injunction filed in respect of a property belonging to the deity, Shankarji Maharaj filed by the deity and one Manni Lal, claiming to be the Manager of the property of the said deity, over which the defendant-appellants and, their predecessor-in-interest Shri Kamla Nand wanted to make certain encroachments. The two courts below have returned concurrent findings and have decreed the suit holding that Manni Lal was the Manager of the properties of plaintiff 1. The original defendant Kamla Nand claimed to be the Pujari of the said temple and claimed to be in management thereof, having been authorised by Vithal Sewa Ashram Samiti, which pleas have not found favour with the courts below.
2. The short question which has been raised in the appeal is whether on the death of the original plaintiff, Mannilal, the suit was still maintainable by his heirs? It may be recalled that after the suit had been decreed by the trial court. Kamla Nand, the original defendant died and the appellants alone went up In appeal against the trial court decree. When their appeal was dismissed, they alone filed the present appeal againsl the plaintiffs. During the pendency of the appeal in this court, heirs of Manni Lal plaintiff-respondent 2, were brought on record by an order of this court dt. 6-5-82. The appellants themselves brought his heirs on the record as the legal representatives of Manni Lal who are now contesting the appeal. It has been contended before me firstly that Manni Lal had, no right to file the suit and secondly that he had only claimed a personal right as Manager and on his death the suit should fail and his personal heirs had no right to continue the suit. In support of his contention he placed reliance on some decisions which are dealt with hereunder.
3. Reference was made to Jodhi Rai v. Basudeo Pd. (1911) ILR 33 All 735 wherein a Full Bench of this court was dealing with the position of idol and its capacity to bring a suit in its own name. It was observed in that case as under:
'An idol has been held to be juristic person who can hold property. Therefore, when a suit is brought in respect of property held by an idol, it is tre idol who is the person bringing the suit or against whom the suit is brought, the idol being the person beneficially interested in the suit. No doubt, in every suit the party bringing it or the party against whom it is brought must, when he is suffering from an incapacity, being represented by some other person, as in the case of an infant or a lunatic. Therefore, when a suit is brought on behalf of or against an idol, there must be on the record a person who represents the idol, such as the Manager of temple in which the idol is installed. The Manager of the idol is not personally interested in the suit, any more than is the next friend or guardian of the minor. As a suit by a minor should be brought in the name of the minor and not of his next friend, so should a suit on behalf of the idol be brought in the name of the idol as represented by the Manager, and in a suit against the idol the defendant should be similarly described. It is true that every pleading must be signed by a sentient being; but this can be done by the manager; just in the same way as in the case of an infant the pleadings are signed by his next friend or guardian for the suit. The first defendant in this suit was, therefore, properly described in the plaint, and the view of the learned Judge in this respect is, in our judgment, erroneous. If there is any defect in the description of the defendants in suit of this kind, it is nothing more than an irregularity or misdescription. If, for instance, a suit on behalf of an idol is brought in the name of the manager of the idol that would not warrant dismissal of the suit; but the plaint may be amended by correcting the description.'
4. Reference was also made to a Division Bench of this court in Doongarsee Syamji Joshi v. Mukhia Tirbhuwam Das AIR 1947 All 375 where at one place it was observed;
'We do not think we can accept the contention of learned counsel for the respondent that an idol has no right to sue at all, though we agree with him that a suit in the name of idol can be filed only in the interest of the idol and not with the object of getting whole of its property by the person purporting to act as next friend.'
5. All these decisions do not advance the case of the appellant in any manner. If at all they, in some way or the other, support the case of the respondent. The present suit was filed both in the name of the idol through de facto manager and also by the manager in his own name. There is nothing illegal or improper in framing the suit in this manner. The courts below have concurrently held that plaintiff 2 was the de facto manager of the property of the idol and, there fore, the suit has been properly filed.
6. I do not think it is now open to the appellant to question the right of the heirs of Manni Lal to maintain the suit or to resist this appeal now for the simple reason that they themselves had brought the heirs of Manni Lal on record after his death. Even in the application for impleadment of heirs nothing was stated that the right of the deceased was personal and did not survive on his death. Besides this, the suit was filed by the deity also as plaintiff No. 1, and it is not stated that the suit by it was not maintainable since the deity itself cannot look after its interest, someone else must book after it.
7. It is next contended that plaintiff Manni Lal had no right to institute the suit because being an Arya Samaji, he did not believe in idol worship. This plea has been negatived by the courts below. Nothing has been shown which may persuade me to take a view contrary to the view taken by the courts below. Manni Lal did not claim to be the She-bail or Pujari of the deity but only that he was managing the property. This work could be done even by an adherent of Arya Samaj which is but a reformist movement which is essentially a part of the society which professes Hindu religion. The court below has rightly relied upon the view expressed in Iswar Radha Kanta Jiu v. Kshetra Ghosh AIR 1949 Cal 253 where a Division Bench of thai court expressed itself on this point in the following language:
'It is now beyond dispute that the Brahmos, the Jains, and the Arya Samjists all belong to Hindu religion. Whether an Arya Samajist is a Hindu or not is a question which has been before the courts, and it has been decided that an Arya Samajists is a Hindu, and the Hindu Law applies to him. Reference may be made to Ganga Saran v. Smt. Sirtaji : AIR1935All924 .'
It was further held :--
'Therefore it is not essential that there should be personal performance of the duties connected with the actual ritualistic worship of the deity by the shebait unless of course there is anything in the terms of the endowment that such should be done by the shebait. If there is any such strict term to the contrary in the endowment, then whoever wants to succeed to the shebaitship may have to comply with such terms but where succession is according to the ordinary principles of the Hindu law, as the Hindu law allows a division of the duty of actual performance of the rituals, and the duty of managing the property of the idol, mere incapacity to perform personally the rituals of worship cannot operate to divest the person of his right of inheritance to the shebaitship.'
8. It is thus obvious that being an opponent of idol worship as in the case of Arya Samajist, alone is not sufficient to disable a person from acting as She-bait much less adversely affect his right to act merely as manager of the property of the deity. In a recent decision of Lucknow Bench of this High Court a learned single Judge relying on the Supreme Court decision in Vikarama Das Mahant v. Daulat Ram Asthana : AIR1956SC382 , held that a suit by (Muntazim) Manager for injunction to restrain the defendants from making the offending construction was maintainable (See Sri Thakur Radha Krishnaji v. Ram Prasad 1983 All WC 428 ; (AIR 1984 NOC 53) (All). In that case it was also held, that if on the date of the suit, the co-plaintiff of the deity hud a right to sue that right will not be lost if he ceased to be the Receiver, A de facto manager had as such a right to bring the suit for protecting the idol property as the Shebait.
9. Bar of Section 92, C. P. C., was pleaded next. Firstly, such a plea was not taken before any of the courts below and has been raised for the first time here. Even if allowed, the plea has no force. Section 92, C. P. C., does not, in terms, apply to the facts of the present case which was to vindicate the right of plaintiff 2 as Manager of the property of plaintiff 1, and for the protection of the property of the temple. Such a suit is not contemplated under Section 92 of the Code. In Swami Parmatmanand Saraswati v. R. Tripathi : 1SCR790 it was held by the Supreme Court as under :--
'A suit under Section 92 is a suit of a special nature which presupposes the existence of a public trust of a religious or charitable character. Such a suit can proceed only on the allegation that there was a breach of such trust or that the direction of the Court is necessary for the administration of the trust and the plaintiff must pray for one or more of the reliefs that are mentioned in the section. It is, therefore, clear that if the allegation of breach of trust is not substantiated or that the plaintiff had not made out a case for any direction by the Court for proper administration of the trust the very foundation of a suit under the section would fail; and, even if all the other ingredients of a suit under Section 92 are made out, if it is clear that the plaintiffs are not suing to vindicate the right of the public but are seeking a declaration of their individual or personal rights or the individual or personal rights of any other person or persons in whom they are interested, then the suit would be outside the scope of Section 92.
A suit whose primary object or purpose is to remedy the infringement of an individual right or to vindicate a private right does not fall under the section. It is not every suit claiming the reliefs specified in the section that can be brought under the section but only the suits which, besides claiming any of the reliefs, are brought by individual as representatives of the public for vindication of public rights and in deciding whether a suit falls within Section 92 the Court must go beyond the reliefs and have regard to the capacity in which the plaintiffs are suing and to the purpose for which the suit was brought. This is the reason why trustees of public trust of a religious nature are precluded from suing under the section to vindicate their individual or personal rights. It is quite immaterial whether the trustees pray for declaration of their personal rights or deny the personal rights of one or more defendants. When the right to the office of a trustee is asserted or denied and relief asked for on that basis, the suit falls outside Section 92.'
10. In Subramania Pillai v. Krishnaswamy, (1919) ILR 42 Mad 668 : (AIR 1919 Mad 159), the suit had been filed by some of the appointed trustees who had filed a suit for injunction restraining the defendant from interfering with the affairs and property of the temple without obtaining any sanction to file the suit. The court held that such a suit was barred under Section 92, C. P. C. However, in the case in the garb of an injunction the actual relief sought was for removal of a trustee and as such the suit was rightly held to be barred by that section. The situation here is different as the contest here is between two rival claimants who proclaim themselves to be the real Manager of the temple property.
11. In Bishambhar Nath v. Raghunath Prasad : AIR1971All207 , during the pendency of the appeal arising from a suit filed under Section 92, C. P. C., with the permission of the Advocate General, one of the plaintiff-respondents died. The appellant applied for substitution of his personal heirs which was opposed. It was held that the deceased plaintiff had not claimed any personal rights and, therefore, his personal heirs could not be substituted. In the present case, however, the personal heirs were brought on record merely because the application for substitution was not objected to by the respondents or the proposed heirs. If the application for substitution was not proper then in view of : AIR1971All207 , the same was not maintainable and the appeal must be abated. If, however, it is taken as 'fait accompli' the appellant cannot be allowed to take advantage of his own mistake and now raise the plea regarding non-maintainability of the suit.
12. In the present case as no vindication of a public right is involved, Section 92, C. P. C. would not come in the way of the plaintiffs. In my view, therefore, any person interested in proper worship of the deity being performed would also be entitled to maintain a suit to protect the temple property where the Shebait, the Manager or the Pujari had been loath in taking any preventive action in discharge of their duties as such. In this case, it is the so called Manager/Pujari himself who was the author of the unauthorised act and as such even if Manni Lal be not the Manager of the temple, yet being a Hindu and also as a member of the public interested in the welfare of the deity and proper management of its properties, he could certainly maintain the suit to prevent such trespass on the property of the deity.
13. It is the primary duty of the court in every case to see that the property of the diety was not harmed, misutilized or put to any other prejudicial use. The appellant has not been able to establish any right to manage the property. Admittedly a lime kiln was established on a portion of the temple land, Dr. R. Dwivedi, for the appellant, submitted that the lime kiln has since ceased functioning and has been removed from the land and the only other offending construction was a boundary wall which has enclosed the land of the temple which, according to him, was for the benefit of the deity and in no way against its interest. The concurrent findings of fact by the courts below are, however, to the contrary. Even if the lime kiln has subsequently been removed, the possibility of misuse of that land or some other kind of encroachment over the land cannot be ruled out.
14. As far the argument of the appellant that the judgment under appeal will take away the right of the parties to have a proper scheme of management framed for the future, I find that the learned lower court has effectively modified the decree passed by the trial court so as to leave it open to the parties to approach the appropriate court for framing a proper scheme of management of the property. However, for the intervening period, it is necessary to preserve the property and for that the injunction should continue.
15. I am, therefore, not inclined to interfere in second appeal and the decree passed by the court below is confirmed. It may, however, be made clear that it would be open to the parties or any member of the public who may be interested in the proper management of the property belonging to the deity to approach the court in appropriate proceedings to get a scheme of administration framed and the decree passed herein will stand suitably modified by the scheme of administration that may be framed by the court in those proceedings.
16. In the result, the appeal fails and is hereby dismissed with costs.