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Sher Ali and ors. Vs. Nasirkhan and ors. - Court Judgment

LegalCrystal Citation
SubjectCivil
CourtRajasthan High Court
Decided On
Case NumberCivil Revision No. 105 of 1972
Judge
Reported inAIR1974Raj150; 1973()WLN622
ActsCode of Civil Procedure (CPC) , 1908 - Sections 92
AppellantSher Ali and ors.
RespondentNasirkhan and ors.
Appellant Advocate M.L. Shrimali and; M.H. Farooqi, Advs.
Respondent Advocate Sagar Mal Mehta, Adv.
Cases ReferredShri Ram Pershad v. Chhano Devi
Excerpt:
.....clearly the suit can be tried only by the district judge and the order for return of the plaint is proper, and if it does not then the suit was properly instituted in the court of munsiff. 7. in air 1954 tray co 51 it has been observed that two conditions have to be satisfied for the application of the section (section 92, civil p. chhano devi, air 1969 delhi 75. 9. in air 1923 pat 309 it was observed that what the plaintiff claimed in the plaint did not altogether contemplate merely matters which are comprised in section 92, for he claims, as in his own right of succession, possession of the properties as well as the position of mohunt. it was observed in air 1960 cal 558 that the fact that some of the reliefs cannot be granted because of the non-compliance of the provisions of..........3-11-1971 by which the learned judge upheld the order of the munsiff, bundi dated 26-5-1970 in civil suit no. 127 of 1967, returning the plaint for presentation to the proper court.2. the case has rather a chequered history and in order to appreciate the points canvassed before me it would be necessary to give a few relevant facts giving rise to the present suit3. there is a 'dargah' popularly known as 'mira sahib ka durgah' situated on a hill in the city of bundi. it is common case of the parties that the 'durgah' is a religious place meant for use by the muslim community for offering prayers. it appears that asghar ali was looking after it as a 'mutwalli'. the defendants nos. 1 and 2 nasir shah and habib shah were dissatisfied by the management of the durgah by asghar ali and.....
Judgment:
ORDER

C.M. Lodha, Adv.

1. This is a revision application by Sher Ali and others, legal representatives of Asghar Ali deceased-plaintiff against the appellate order by the Additional District Judge. Bundi dated 3-11-1971 by which the learned Judge upheld the order of the Munsiff, Bundi dated 26-5-1970 in Civil Suit No. 127 of 1967, returning the plaint for presentation to the proper Court.

2. The case has rather a chequered history and in order to appreciate the points canvassed before me it would be necessary to give a few relevant facts giving rise to the present suit

3. There is a 'Dargah' popularly known as 'Mira Sahib Ka Durgah' situated on a hill in the city of Bundi. It is common case of the parties that the 'Durgah' is a religious place meant for use by the Muslim Community for offering prayers. It appears that Asghar Ali was looking after it as a 'Mutwalli'. The defendants Nos. 1 and 2 Nasir Shah and Habib Shah were dissatisfied by the management of the Durgah by Asghar Ali and consequently after obtaining the consent in writing of the Advocate General of Rajasthan, instituted a suit in the Court of Civil Judge. Bundi for removal of the trustee Asghar Ali and for appointing a new trustee. This suit was registered as Civil Suit No. 8/1958. However, during the pendency of the suit the parties entered into a compromise on the basis of which the Civil Judge, Bundi passed a decree directing that a committee be constituted of Nisar Ahmed. Nazir Mohammad and Illahi Bux (defendants Nos. 3 to 5 in this case) under whose supervision Asshar Ali would continue to manage the 'Durgah' and in case the said committee found the work of Asghar Ali unsatisfactory, they would be entitled to remove Asghar Ali as a trustee and appoint another trustee or trustees in his place. It transpires that in accordance with the powers conferred on the committee the defendants Nos. 3, 4 and 5 removed Asghar Ali on 6-2-1960 and appointed defendant No. 1 Nasir Shah as 'Mutwalli' in place of Asghar Ali. Aggrieved by this act of the committee Asghar Ali filed the present suit in the Court of District Judge, Bundi on 14-2-1963 alleging that the compromise on the basis of which the decree dated 16-2-1959 was passed by the Civil Judge, Bundi had been got signed by him by practising fraud and undue influence and was consequently void. It was also alleged that the Civil Judge, Bundi had no jurisdiction to entertain and decree the suit under Section 92, Civil P. C. as it was exclusively triable by the principal Court of Civil Jurisdiction, namely District Judge Kota. An objection was taken by the defendants that the suit was not maintainable for want of consent by the Advocate General of Rajasthan under Section 92, Civil P. C. Thereupon the plaintiff took the stand that the suit was not under Section 92, Civil P. C. but for enforcement of his personal right as a 'Mutwalli' and for declaration of the decree granted by the Civil Judge. Bundi as null and void. The learned District Judge thereupon ordered that the plaint be returned to the plaintiff for presentation to the competent Court. Consequently the plaint was returned to the plaintiff, who presented the same in the Court of Munsiff, Bundi on 28-4-1964. The defendants pleaded inter alia that the suit fell within the purview of Section 92. Civil P. C. and could be instituted only in the District Court after obtaining the consent of the Advocate General in writing. Issue No. 11 was framed on this point and after hearing the arguments the learned Munsiff held that the suit was covered by Section 92, Civil P. C. and only the District Judge, Bundi was competent to entertain it Consequently, he directed the return of plaint. As already stated above, on appeal by the plaintiff, the learned Additional District Judge, Bundi confirmed the order of the trial Court. Hence this revision. Before concluding the narrative, one more fact may be stated. During the pendency of the suit in the Court of Munsiff. Asghar Ali died on 2-8-1965 and the present petitioners who are his heirs were substituted in his place.

4. The main point for decision in the case is whether the suit falls within the purview of Section 92, Civil P. C.? It is beyond dispute that if it does, then clearly the suit can be tried only by the District Judge and the order for return of the plaint is proper, and if it does not then the suit was properly instituted in the Court of Munsiff. The whole argument advanced in the case by the learned counsel for both the Parties centres round the interpretation of the Plaint. The contention of the learned counsel for the non-petitioners is that on reading the plaint as a whole the conclusion drawn by the Courts below that this is a suit under Section 92, Civil P. C. is correct, whereas the contention on behalf of the petitioners is that the suit is not one for vindication of the rights of the general public or the Muslim community but it is a suit to establish a right of hereditary management of the 'Durgah' and for consequential reliefs. In support of this contention learned counsel has relied upon K. Meethyan v. K. Marackar, AIR 1954 Tra Co 51; Tirumalai Devasthanams v. Krishnayya, AIR 1943 Mad 466 (FB): Sanat Kumar v. Hemchandra, AIR 1961 Cal 411 and Raghunath Das v. Sheo Kumar, AIR 1923 Pat 309. It is submitted that the suit is not founded on a breach of trust and the material allegation in the plaint on which the cause of action is based is that the appointment of the trustees is invalid and therefore, such a suit even if construed as one for removal of the trustees is outside the scope of Section 92.

5. On the other hand learned counsel for the non-petitioners has argued that the suit is virtually on behalf of the whole Muslim community of Bundi and the trustees even if held to be illegally appointed by the Court would be trustees within the meaning of Section 92 of the Civil Procedure Code, and a suit for their removal would come within the ambit of Section 92, Civil P. C. In support of his contention he has relied upon S. K. Mitra v. H. C. Dey, AIR 1960 Cal 558 and para. 206 of Mulla's principles of Mahomedan Law, Seventeenth Edition. However, before I embark upon the discussion of the authorities relied upon by the learned counsel it would be necessary to examine the material allegations in the plaint in order to determine the nature of the suit.

6. In para. No. 2 of the plaint the plaintiff has alleged that the 'Mutwalli-ship' of the 'Durgah' has been vested in the family of the plaintiff for the last 400 to 500 years and after his father's death plaintiff Asghar AH has been acting as its 'Mutwalli' for the last 50 years and has been managing the property attached to the 'Durgah' during all this period. In para. No. 9 of the plaint it is further stated that the compromise filed in the previous case and the decree passed on its basis were invalid, so as to affect the plaintiff's hereditary right to act as 'Mutwalli' and manage the business of the 'Durgah'. In the relief clause it has been prayed that a declaration may be granted that the 'Durgah' is a Muslim Wakf Property and the plaintiff is its hereditary Mutwalli and is entitled to manage the 'Durgah' and its properties according to time-old custom. In this connection it has also been prayed that the decree by the Civil Judge, Bundi dated 16-2-1959 whereby the defendants Nos. 3, 4 and 5 were appointed as members of the Committee to manage the 'Durgah' was void. These allegations do lead to an inference that the plaintiff did not seek to sue as a representative of the Muslim community. No doubt, he has alleged in para. No. 6 that he has been wrongly removed as Mutwalli by the defendants Nos. 3, 4 and 5 in collusion with defendant No. 2. In para. No. 8 it has been stated that it is the desire of the whole Muslim community of Bundi that the management of the Durgah may be transferred from the defendants to the plaintiff Asghar Ali and his family. But from the said allegations in paras. Nos. 6 and 8 it cannot be inferred that the plaintiff has filed the suit as a representative of the public. I am, therefore, of opinion that on a proper interpretation of the plaint the conclusion is irresistible that the plaintiff has filed the present suit in his individual capacity for enforcement of his personal right as a hereditary 'Mutwalli' and not for vindication of the rights of the Muslim community.

7. In AIR 1954 Tray Co 51 it has been observed that two conditions have to be satisfied for the application of the section (Section 92, Civil P. C.); one is that the suit should be one for the vindication of the rights of the general public in any trust created for public purpose of a charitable or religious nature and the other is, that the relief should be all or any of the reliefs enumerated in clauses (a) to (h) of Section 92. It was further held that the section was intended to govern representative suits brought for the benefit of the public to enforce a public right in respect of an express or constructive trust. It does not apply to suits brought by persons to remedy a particular infringement of their own individual right.

8. In AIR 1943 Mad 466 (FB) a Full Bench of the Madras High Court agreed with the opinion of Varadachariar, J., in Shanmukham Chetti v. Govinda Chetti, AIR 1938 Mad 92 that 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 is brought. The Full Bench overruled the view taken by another Full Bench in an earlier case: Janaki Bai v. Vinavakar of Melmandai, AIR 1935 Mad 825 (FB). It appears that, the learned Civil Judge relied upon the overruled case reported as AIR 1935 Mad 825 (FB) presumably because the later Full Bench case was not brought to her notice. The same view was taken in Shri Ram Pershad v. Chhano Devi, AIR 1969 Delhi 75.

9. In AIR 1923 Pat 309 it was observed that what the plaintiff claimed in the plaint did not altogether contemplate merely matters which are comprised in Section 92, for he claims, as in his own right of succession, possession of the properties as well as the position of mohunt. It further appears from the judgment of that case that mingled with this claim there was also an allegation of breach of trust such as is contemplated under Section 92. In these circumstances the learned Judges observed that a claim for possession being based upon an alleged personal right of the plaintiff cannot be regarded as falling within the purview of Section 92.

10. From the cases cited above the position seems to be quite clear that an a case where the plaintiff seeks to enforce his personal right in respect of a trust for religious or charitable purposes and not for vindication of the rights of the public or a particular community as its representative, the suit would not fall within the ambit of Section 92, Civil P. C. and even if some reliefs covered by Items (a) to (h) of Section 92 are claimed the suit would nevertheless be triable as an ordinary suit.

11. In AIR 1960 Cal 558 relied upon by the learned counsel for the non-petitioners it has been, no doubt, held that a suit for removal of a trustee illegally appointed or a trustee de son tort would come within the ambit of Section 92 of the Civil Procedure Code. It is true that one of the reliefs claim-led by the plaintiff is that it may be declared that the defendant No. 1 is not entitled to act as Mutwalli of the Durgah and he may be restrained from interfering with the plaintiff's right to act as Mutwalli, This may amount to a relief for removal of the defendant No. 1 as a trustee. Whether this relief can be granted or not in the facts and circumstances of the present case, I shall not anticipate, nor it is proper to give any finding on that point. However, where more than one relief are asked, some of which the Court may not be competent to grant, yet it can grant ;those reliefs which it can. It was observed in AIR 1960 Cal 558 that the fact that some of the reliefs cannot be granted because of the non-compliance of the provisions of Section 92 of the Code cannot disentitle the plaintiff to get other reliefs which can well be claimed in an ordinary suit. The learned Judge went on to observe that the suit cannot be dismissed though the plaintiff is debarred from claiming some of the reliefs in the suit which can only be claimed in a suit framed in compliance with the provisions of Section 92 of the Code.

12. One of the important reliefs claimed by the plaintiff is that the decree passed by the Civil Judge. Bundi dated 16-2-1959 is null and void for patent lack of jurisdiction. This relief has got nothing to do with the provisions of Section 92, Civil P. C. and can very well be asked for in an ordinary suit.

13. Learned counsel for the non-petitioner also argued by reference to para. 206 of Mulla's Principles of Mahomedan Law (Seventeenth Edition) that Mahomedan Law does not recognise any right of inheritance to the office of Mutwalli. But the office may become hereditary by custom in which case the custom should be followed. It is contended that no plea of inheriting the office of mutwalli by custom has been taken in the case and therefore the plaintiff's claim to the mutwalliship in his personal right cannot be sustained. In my opinion whether the claim is sustain-able or not and whether the plaintiff would succeed in the claim made by Mm is a question which can be properly decided only after trial of the suit. The only question that I am called upon to determine, at this stage, is whether the Munsiff Bundi had jurisdiction to try the suit or he was justified in returning the plaint on the ground that the suit was covered by Section 92, Civil P. C. To this question I have already given an answer in the plaintiff's favour.

14. The net result of the fore-going discussion is that in the facts and circumstances of the case, and in view of the position of law as stated above the Courts below were not justified in ordering return of the plaint. Accordingly, I allow this revision application, set aside the judgments of the Courts below and send the case back to the trial Court for disposal according to law. There will be no order as to costs of this revision application.


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