1. This is a plaintiffs' appeal arising out of an order returning the plaint in a suit under Section 92 of the code of Civil Procedure for presentation to the proper Court. The plaintiffs alleged that the houses and other properties detailed in the plaint were trust properties situated in the cantonments at Meerut and had been endowed for public and religious purposes for over a century. They further alleged that part of the constructions had been made from public subscriptions and that houses and residential quarters had been built for barbers. It was the plaintiffs' case that the barber community of the cantonments used to appoint a manager to look after the worship of the temples and to manage the properties, and that the last manager was one Dhi Mai, father of defendant No. 2, who died in 1916. The plaintiffs went on to allege that since the death of Dhi Mai no manager had been appointed, but the defendant No. 1, a lady, as guardian of defendant No. 2, had been acting as manager of the said properties. They then proceeded to state that various breaches of trust had been committed, that no accounts had been rendered, that the buildings were out of repairs, and that the defendants were even denying the existence of the trust. After having obtained the permission of the Legal Remembrancer, the suit under Section 92 of the Civil Procedure Code was instituted; and the reliefs claimed were:
(1) That the defendants be removed from the management of the said trust;
(2) that new trustees be appointed;
(3) that the trust properties be vested in the new trustees:
(4) that accounts of the trust porperties be taken from the defendants from 1916 up to date,
(5) that a scheme be laid out for the future guidance and maintenance of the trust; and, lastly,
(6) that any other relief which from the nature of the case might be deemed just and convenient be granted.
2. The contesting defendants denied the existence of the trust. They denied that they even entered into possession of the properties as trustees, and set up their own title.
3. One of the issues framed was, whether the suit was maintainable under Section 92 of the Code of Civil Procedure. No statement of the plaintiffs was taken at the time of the settlement of issues which might have concluded this disputed point. The plaintiffs led their evidence first, and put in Lachman Prasad, one of themselves, as a witness. In the course of his cross-examination Lachman Prasad stated that after the death of Dhi Mai no manager was appointed, and that no one worked as such; and that the defendant No. 1 took possession of the properties on behalf of the minor defendant and claimed to be the owner since Dhi Mai's death. After this statement had been recorded, the objection was again raised on behalf of the defendants that the suit was not maintainable. The learned Judge, without recording any further evidence of the plaintiffs, proceeded to dispose of this point. He came to the conclusion that, having regard to the fact that there was only a half-hearted assertion in the plaint as to the defendants acting as managers, and the evidence of Lachman Prasad himself, it was clear that the defendants could not be regarded as constructive trustees. He, in effect, held that the defendants were mere trespassers and that the suit against them under Section 82 was not maintainable. He wound up by ordering that the plaint should be returned for presentation to the proper Court.
4. As to the procedure adopted by the learned Judge, we may remark that if Lachman Prasad's statement bad been taken as part of the oral pleadings, then it would have been conclusive for the purposes of the case. This, however, was not done. His statement on oath was a part of the evidence which the plaintiffs were leading, and we think that the plaintiffs' evidence should not have been stopped after Lachman Prasad's statement had been recorded, especially as there was another plaintiff in the suit and Lachman Prasad might not have been personally aware of all the circumstances under which the defendants took possession.
5. The obvious defect in the order is that the plaint which has been ordered to be returned for presentation to the proper Court is bound to be thrown out if presented in an ordinary Court of civil jurisdiction. Most of the reliefs claimed in the plaint are reliefs which come expressly under Section 92 of the Code of Civil Procedure, and no suit seeking such reliefs can under Clause (2) of that section be instituted otherwise than in accordance with that section It is, therefore, obvious that the plaint could not have been ordered to be returned merely on the ground that the suit under Section 92 was not maintainable.
6. What, however, the learned Judge meant to hold was that the defendants were not persons who were either admitting the trust or had at any time entered into possession as trustees de son tort, but that they were trespassers who, from the very beginning had been denying the trust and assorting their own title. He, therefore, thought that no suit under Section 92 could be maintained as against them. In support of his view he relied on the case of Muhammad Bakhsh v. Mt. Piari A.I.R. 1921 All 116. There can be no doubt that that case to some extent supports his view. Apart, however, from the case relied upon by the learned District Judge, the oases in which a suit against a trespasser has been held not to be covered by Section 92 are, so far as we are aware, all oases in which a person claiming to be trustee or mutwalli has asked for a declaration of his personal right and for the removal of the person in possession of the property: such, for instance, are Ayatunnisa Bibi v. Kulpar Khalifa (1914) 41 Cal. 749 and Dasondhay v. Muhammad Abu Nasar (1917) 33 All. 660. On the other hand, the Bombay High Court has held in Collector of Poona v. Bai Chanchalbai (1911) 35 Bom. 470 that where a breach of trust is complained of and where the alience of trust property denies that it is the subject of a trust, he is a proper party to the litigation, although no decree in ejectment can be given against him.
7. If the plaintiffs, after their evidence is closed, succeed in establishing that the defendants entered into possession as trustees or have been acting as de facto trustees of these properties, and that the properties are trust properties, then there can be no doubt that the suit would be maintainable. On the other hand, if they altogether fail to establish such a character of the possession of the defendants, even then it seems to us that they have a right to ask the District Judge, in case they prove that the properties are trust properties, to appoint new trustees, because DO trustees exist. It is not incumbent on the plaintiffs to first bring a representative suit to recover possession of the properties under Order 1, Rule 8, Civil Procedure Code, and then having obtained possession, ask the Judge to appoint trustees for the same. Where either a breach of trust has been committed, or where the direction of the Court is necessary for the administration of such trust, persons interested in the trust can ask the Court to appoint new trustees. After such new trustees have been appointed, it would be open to them to take steps to recover possession of the property from the hands of the trespassers who may hold the properties. If, therefore, it was open to the plaintiffs to institute the suit under Section 92 for the appointment of new trustees, can it be said that their plaint is defective because they have chosen to implead the defendants who are denying the trust, It seems to us that in a suit under Section 92; it is within the jurisdiction of the Court to first decide the question whether the property in dispute is or is not trust property. If the Court has jurisdiction to I decide this question, it is obvious that such a question ought to be decided in the presence of persons who are interested in denying the trust. The defendants are certainly interested in denying the trust, land therefore, it cannot be said that they I have been improperly impleaded. It is true that they might not have been absolutely necessary parties to the suit, and the suit might have been instituted without impleading them at all; but when they have been impleaded, it is impossible to 5say that they have been improperly impleaded. Of course it cannot be doubted that, even if it be held that the properties are trust properties and that the defendants are mere trespassers and have no right to retain possession thereof, the Court cannot in these proceedings order their ejectment. But there would be nothing to prevent the Court from declaring that the properties are trusd properties, and they vest in the newly appointed trustees.
8. We are, therefore, of opinion that the order directing that the plaint should be returned cannot be upheld. We allow this appeal and, setting aside the order, direct that the case be sent back to the learned District Judge for disposal according to law.
9. We direct that the costs of this appeal should abide the event.