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Shera Khan Vs. Bhura Shah - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtAllahabad
Decided On
Reported inAIR1935All273; 157Ind.Cas.202
AppellantShera Khan
RespondentBhura Shah
Cases ReferredAbdul Hakim Baig v. Mohmed Burramiddin
Excerpt:
- - in revision it is contended by learned counsel for applicant that the district judge failed to exercise jurisdiction vested in him by law and that as the learned additional district judge had already exercised jurisdiction in the matter it was no longer open to the district court to consider the question of jurisdiction. the position therefore is that in our opinion learned counsel has failed to show that the district judge under the circumstances of this case had any jurisdiction in the matter. under these circumstances we cannot hold that the district judge failed to exercise a jurisdiction which he had......j.1. this is an application in civil revision brought, by one shera shah against an order of the learned district judge of meerut, dated 26th may 1933. shera shah made an application on 19th march 1931 to the district judge setting out that there was a shrine or dargah of mastan shah in muzaffanagar district and that this shrine was endowed and in 1906 a case no. 1 of 1906. abdulla shah and ors. v. bunda shah, was decided in the district court for the removal of bunda shah and for framing a scheme for the management of the shrine. learned counsel admits that this application was under section 92, civil p.c. the application proceeded that it was decided that bunda shah should remain as mutwalli and that the scheme of management should remain as was arranged in 1900, and that there.....
Judgment:

Bennet, J.

1. This is an application in civil revision brought, by one Shera Shah against an order of the learned District Judge of Meerut, dated 26th May 1933. Shera Shah made an application on 19th March 1931 to the District Judge setting out that there was a shrine or dargah of Mastan Shah in Muzaffanagar District and that this shrine was endowed and in 1906 a case No. 1 of 1906. Abdulla Shah and Ors. v. Bunda Shah, was decided in the District Court for the removal of Bunda Shah and for framing a scheme for the management of the shrine. Learned Counsel admits that this application was under Section 92, Civil P.C. The application proceeded that it was decided that Bunda Shah should remain as mutwalli and that the scheme of management should remain as was arranged in 1900, and that there should be a committee of three visitors, the Collector, the Tahsildar and a respectable person of the locality, to manage the shrine. Later the applicant, Shera Shah became the mutwalli. By an order of 3rd February 1931, without the information of the applicant, the committee dismissed the applicant from the post of mutwalli and appointed the opposite party Bhura Shah as mutwalli. The application asked that the proceedings of the committee should be set aside and that the applicant should be re-instated as mutwalli and Bhura Shah should be dismissed from the office of mutwalli. The application was directed only against Bhura Shah. The learned Additional District Judge issued notice to Bhura Shah who filed a reply. On 18th July 1931, the Additional District Judge passed an order stating that the committee of visitors had the power of removing the mutwalli for sufficient reasons to be recorded in a formal proceeding and the power of appointing a new mutwalli. He statedl that the record did not show what charges were actually brought against Shera Shah and if he was given any opportunity to meet those charges. He proceeded to state:

I will ask the committee to frame these-charges, to give him an opportunity (to meet the charges) and then to reconsider their order of removal, and if after doing this they come to the same conclusion, then it will be for me to see whether the removal of the applicant is justified or not.

Let a copy of this be sent to the Board of, visistors through the Collector of Muzaffarnagar.

2. In complaiance with this order the committee reconsidered the matter and confirmed their previous order. The matter was again before the learned District Judge and in the order under revision of 26th May 1933, the learned District Judge set out that he can find; no provision under which he can interfere with the decision of the committee, that the learned pleader for the applicant only referred to Act 11 of 1920, and he could find nothing in that Act to justify interference. The application for removal of Bhura Shah and re-appointment of Shera Shah was therefore rejected. In revision it is contended by learned Counsel for applicant that the District Judge failed to exercise jurisdiction vested in him by law and that as the learned Additional District Judge had already exercised jurisdiction in the matter it was no longer open to the District Court to consider the question of jurisdiction. On the question of res judicata learned Counsel referred to two rulings : Ram Kirpal v. Rupe Kuari (1884) 6 All. 269 and G.H. Hook. v. The Administrator-General of Bengal 1912 P.C. 11. In these rulings; no question similar to the present question arises where a Court purports to exercise jurisdiction and later decides that it has not got jurisdiction. There-was no issue before the Additional District Judge as to whether he had jurisdiction or not. In any case we consider that under Section 115, Civil P.C., it is for the applicant to satisfy us that the District Judge had a jurisdiction which he did not exercise and that no question of res judicata arises in: this case.

3. Learned Counsel relied firstly on section 92, Civil P.C., and secondly on the Religious Endowments Act, 20 of 1863. In regard to Section 92, Civil P.C., the argument of learned Counsel was that as the claim had been settled in 1906, under that section in a proper proceeding in which the applicant at the time Abdulla and others had obtained the sanction required by Section 92, Civil P.C., no further sanction under that section was necessary, because the present application is in regard to a scheme which was settled under that section. Learned Counsel referred to various rulings on this point. In Sakharam Daji v. Ganu Raghu 1921 Bom. 297, there was a second appeal from an appellate decree of the. District Court upholding a decree of the Subordinate Judge to the effect that he had no jurisdiction to entertain a certain suit. The suit was brought by a hereditary pujari of a temple to establish his right to a certain share in the offering made to the deity which were being appropriated by the Guravas. We do not consider that the judgment is in favour of the applicant. All that can be quoted in his favour is a passage on p. 928, column 1, which states:

It has been accepted before us at the Bar that it is open to anyone interested in this fund to apply to the District Court, which framed the scheme, to supplement or modify the same. It is not suggested that a separate suit under S 92 is necessary. Though no liberty to apply is reserved under the scheme, such a reservation can be afterwards implied. An application to the District Court seems to be the obvious and, as I hold, the only remedy open to the parties under the circumstances, to have a direction from that Court as to the offerings laid before the deity.

4. We understand from this passage that the Court considered that an application in regard to the carrying out of the scheme could be made to the District Judge and that a suit was not necessary for such a purpose. Be that as it may the present application is not one of that nature because the application asks for the removal of a trustee and the appointment of another trustee. Those matters form the subject of two of the reliefs : (a) and (b) under Sub-section (1), Section 92 and it is laid down that a suit is necessary with the sanction of the Legal Remembrancer for that purpose. Refererence was next made to Prayag Doss Ji Varu v. Tirumala Sri Ganga Charla Varu (1907) 30 Mad. 138. In that case their Lordships of the Privy Council approved of a scheme for the administration of a certain trust of a religious nature. Learned Counsel relies on paragraphs 10 and 11 of the scheme on p. 142. In para. 10 it is provided that any person interested may apply to the District Court with reference to the carrying out of the directions of the scheme. That will not, in our opinion, cover are application for the removal of a trustee and the appointment of another trustee. Para. 11 lays down that any person interested from time to time may apply to the High Court for any modification of the scheme. That is, any application for alteration, of the scheme could not be made to the District Court, but must be made to the High Court. The present application to the District Court could not sustain any authority from that provision. Similarly in Umeshanandan Dut Jha v. Sir Ravaneswar Prosad Singh (1912) 17 I.C. 969, it was held that when a scheme had been framed by the District Court under Section 539, Civil P.C., and confirmed by the High Court any application for modification of that scheme must be made to the High Court, but the District Court may give instructions for carrying out the modified scheme. In Mohan Dashan Das v. The Collector of Meerut 1918 All. 218, it was held that an order of removal of a mahant by a District Judge can only be made when there is a suit before him under Section 92, Civil P.C., brought with the sanction of the Legal Remembrancer.

5. On the opposite side reference is made to Abdul Hakim Baig v. Mohmed Burramiddin 1926 Mad. 559. This ruling is quoted to meet an argument of learned Counsel for the applicant which was to the effect that the scheme as drawn up in 1906 although it did not specifically reserve a power to the District Judge to revise the decision of the committee as regards the removal of a mutwalli, impliedly reserved such a power. On p. 584 it was held in the Madras ruling:

When Section 92, Civil P.C., directs that for the settlement of a scheme and for other reliefs the sanction of the Advocate-General should be obtained, it would be ultra vires of any Court to obtain jurisdiction by inserting a clause in the scheme whereby persons interested in the scheme or others are enabled to apply to the Court for the alteration of the scheme.

6. We consider therefore that although the scheme was originally drawn up in a proper proceeding under Section 92, Civil P.C., that fact does not remove the necessity imposed by the section for the obtaining of sanction before the. Court can act under the section and remove a trustee or appoint another trustee. We may note that the sanction in the suit No. 1 of 1906, was granted to certain persons Abdulla Shah and others and not to the applicant Shera Shah. The next point which was argued was in regard to Act 20 of 1863, the Religious Endowments Act. Under Sub-section 2, Section 92, Civil P.C. there is an exemption of the provisions of the Religious Endowments Act of 1863 and a suit brought under that Act does not require the sanction imposed by Section 92 (1). Learned Counsel claimed that his application would come under Section 5 of Act 20 of 1863. That section begins:

Whenever from any cause a vacancy shall occur in the office of any trustee, manager or superintendent to whom any property shall have been transferred under the last preceding section

the Civil Court shall have power to appoint a manager, etc. Now, there are two objections to the application of this section in the present case. In the first place the application was made on 19th March 1931, and there was no vacancy at that time existing in the office of mutwalli which had been filled by the order of the committee of 3rd February 1931. The section only applies in our opinion where there is a vacancy existing at the time the application is made, and that is not the case in the application made before us. The second objection to the application of Section 5 is the words 'to whom any property shall have been transferred under the last preceding section.' That is a reference to Section 4 which provides for cases where there were trustees, managers or superintendents under the control of Government at the time of passing of the Act.

7. It is not shown that the endowment, in question came under that description or that it was in existence in 1863 or was under the control of Government. We consider therefore that Section 5, Religious Endowments Act, of 1863, will not apply. We have further considered the question as to whether Section 14 would apply. That section states that any person or persons interested in any mosque, etc., may sue before the Civil Court the trustee, manager or superintendent of such mosque, temple or religious establishment or the member of any committee appointed under this Act, for any misfeasance, breach of trust, neglect of duty, committed by such trustee, etc. The question is whether under this section the present application would lie against the trustees, etc., for misfeasance in dismissing the application without sufficient reason. We are of opinion that the words 'appointed under this Act' apply not only to 'the members of the committee', but also to the words 'trustee, manager or superintendent' and that the section is to be read in the same manner as Section 5 in which a similar qualification is attached to the words 'trustee, manager, or superintendent.' Learned Counsel argued that the words 'appointed under the Act' only referred to the words 'member of any committee.' Even if we accepted this argument, which we do not, learned Counsel is in the difficulty that for the present application we are of opinion that the members of the committee are necessary parties as the applicant alleges that, the members of the committee were guilty of a misfeasance in passing the order of dismissal without due cause. As they are necessary parties and as learned Counsel admits that the words 'members of any committee' are qualified by the words 'appointed under this Act' it is therefore clear that the present application could not lie even on his own admission under Section 14 of Act 20 of 1863.

8. For these reasons we are of opinion that the present application cannot lie under that Act. The position therefore is that in our opinion learned Counsel has failed to show that the District Judge under the circumstances of this case had any jurisdiction in the matter. The proper course for the application to have adopted would have been in our opinion to obtain the necessary sanction under Section 92, Civil P.C., and to proceed in the Court of the District Judge by way of a suit under that section. He has not adopted that coarse and the District Judge has not got jurisdiction to deal with this application. Under these circumstances we cannot hold that the District Judge failed to exercise a jurisdiction which he had. We therefore dismiss this application in revision with costs.


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