1. The suit out of which these two connected appeals arise was instituted by the plaintiffs Gopinath, Ramprasad and Mangilal against the defendants Rami'ilal, Smt. Durga Devi and Surajnarain under Section 92, C. P. C. after obtaining the sanction of the Advocate General of Rajasthan, Subsequently Sun-derlal was also added as defendant No. 4. The plaintiffs claim that defendant No. 1 Ramjilal, defendant No. 3 Surajnarain and defendant No. 4 Sunderlal be removed as trustees in respect of a Bagichi and Dharamshala situated in the Gangapur city, District Sawai Madhopur, and other suitable persons be appointed as trustees. Another prayer contained in the plaint was that the gift deed dated 4-7-53 executed in favour of defendant No. 2 Durga Devi by defendant No. 1 Ramjilal in respect of property marked as No. 2 in the site plan Ex. X alleged to be a part of the trust property be declared void and ineffective. Lastly it was prayed that if defendant No. 3 Surajnarain is found to be in possession of any part of the alleged trust property, he may be dispossessed and the possession of the same be handed over to the trustees who may be appointed afresh.
2. Plaintiff No. 2 Eamprasad died during the pendency of the suit and his name was struck off. Defendant No. 1 Rami'ilal also died during the pendency of the appeal in this Court before the learned single Judge and his legal representatives were brought on the record. Plaintiff No. 1 Gopinath too died on 27-1-62 dtir-ing the pendency of the appeal before the learned single Judge. His name was struck off. Thus there remained only one plaintiff appellant Mangilal and an objection was raised on behalf of the defendants who had succeeded in the trial Court that the appeal by Mangilal alone was not maintainable. This objection was overruled and the appeal was allowed on merits.
3. In this special appeal under Section 18 of the Rajasthan High Court Ordinance, 1949, an objection has again been raised by the defendants appellants that the plaintiff Mangilal alone could not have continued the appeal. In this connection, reliance has been placed on the language of Section 92 of the Code of Civil Procedure which provides that the suit may be instituted either by the Advocate General or two or more persons having an interest in the trust. It is argued that Mangilal alone could not maintain the appeal. This point, in our opinion, has no substance. In this connection, reference may be made to the following observations of their Lordships of the Privy Council in Ali Begam v. Badrul-Islam Ali Khan, AIR 1938 PC 184.
'There is no provision whatever fn the Code (C. P. C.) for recourse being had to the Advocate-General or Collector during the course of a suit or of any proceedings in appeal. As Sub-section (2) of Section 92 sufficiently shows, the consent in writing is a condition of the valid institution of a suit and has no relevance to any other stage. When once validly instituted it is a representative suit subject to all the incidents affecting suits in general and representative suits in particular. Their Lordships cannot accept the doctrine of Jai Lal J., in the present case that the persons who have instituted the suit with the leave of the Collector are to be deemed to be one plaintiff, nor do they see any reason why one of several plaintiffs in such a suit should not appeal on the same terms and conditions as are applicable to suits in general.'
This point again arose before the Supreme Court in Harnam Singh v. Gurdial Singn, AIR 1967 SC 1415. In that case the suit was brought by two plaintiffs after obtaining permission from the Advocate General. One of the plaintiff-respondents died and his legal representatives were not brought on the record. However in view of the nature of the suit, no objection was raised before their Lordships about the maintainability of the appeal on that ground.
4. Thus in view of the clear pronouncement of the Privy Council in Ali Begam's case. AIR 1938 PC 184 (supra), we are of the opinion that one of the plaintiffs namely Mangilal could maintain the appeal. Consequently we overrule the first objection raised by the learned counsel for the appellants that the appeal by Mangilal was not maintainable.
5. For decision of the case on merits, it would be necessary to give a few more facts. The dispute relates to a 'Bagichi', a plan of which was submitted by the plaintiffs along with the plaint and is marked Ex. X. The property in dispute is composed of a 'Bagichi' (orchard) with a Dharamshala, a well, and a 'Chhatri' situated in it. According to the plaintiffs, this 'Bagichi' was known as 'Bhagatwali Bagichi' and the residents of the city used to take bath on the well and worship the idol of Mahadeoji installed in the 'Chhatri'. It was alleged by the plaintiffs that this 'Bagichi' had been constructed by the residents of the city and was donated in trust for the use of pilgrims and Sadhus and that the members of the public in general also used it. It was further pleaded that one Umraosingh alias Ramanand Das who had retired from Government service some time in 1934 A. D. took interest in this property and obtained permission from the Tehsildar to complete the construction of the Dharamshala at the place marked I in the site plan Ex. X.
Subsequently he also applied for permission to construct a 'Pator' for being used as a Kitchen some time in 1935, but according to the plaintiffs, he could not carry out the construction. The plaintiffs' case is that later on he appointed defendant No. 1 Ramjilal and Sunderlal defendant No. 4 as trustees by a registered document dated 4th August, 1936 (Ex. 3) with a direction that this trust property shall be used for the pilgrims and Sanyasis. After his death, Ramjilal and Sunderlal managed the trust property but not before long Sunderlal renounced his status as a trustee and Ramjilal alone managed the trust property. The plaintiffs' complaint if that Ramjilal started appropriating the trust property to his own use and began to live in the 'Pator' marked No. 2 in the plan with his family. Not only that, Ram-jilal also executed a gift-deed in respect of this Pator on 27th June, 1953, in favour of his wife Smt. Durga Devi.
A copy of the gift-deed has been placed on the record and marked Ex. 18. Ramjilal is also alleged to have executed a fictitious trust deed dated 25th June, 1953, in respect of this property in favour of his son Surajnarain, defendant No. 3, A copy of the same has also been produced and marked Ex. 19. Certain other acts of misfeasance and malfeasance were attributed to the defendant Ramjilal. Thus the plaintiffs alleging to be interested in the poper management of the trust property filed the suit for the reliefs already mentioned above.
6. The suit was resisted by all the defendants who filed separate written statements though on identical grounds.
7. After recording the evidence produced by the parties, the learned District Judge Bharatpur by his judgment dated 4th March, 1960, dismissed the plaintiffs* suit. Aggrieved by the judgment and decree of the trial Court, the plaintiffs Gopinath and Mangilal filed an appeal in this Court. As already stated above, Gopinath died during the pendency of the appeal and Mangilal continued it. After deciding the question of the maintainability of the appeal by Mangilal alone ia favour of the appellant the learned single Judge by his judgment dated 16-12-67 reversed the judgment and decree of the trial Court and decreed the plaintiffs' suit. Consequently, the defendants have filed this special appeal
8. Learned counsel for the appellants has urged that the plaintiffs in the present case had no locus standi to file a suit under Section 92, C. P. C. inasmuch as they have failed to prove that they have an interest in the trust as required by the provisions of Section 92, C. P. C. The plaintiffs alleged in the plaint that the well situated in the Bagichi was being used by the public in general for bathing and that the members of the public also go to the temple of Mahadeoji situated in the Bagichi for worshipping the deity installed therein. They further pleaded that they had contributed to the construction of a part of the property. The learned single Judge has found that there is no satisfactory evidence on the record that the plaintiffs had made any contribution towards the construction of any part of the trust property. However, he came to the conclusion that the plaintiffs had succeeded in establishing that they are directly interested in the preservation of the trust property inasmuch as they are the residents of the locality and one of the plaintiffs namely Ramprasad used to live only at a distance of about 200 yards from the suit property. It was also held that the garden as well as the well situated therein were being used by the plaintiffs as members of the public for bathing.
He further found that the plaintiff Ramprasad had instituted proceedings under Section 107, Cr. P. C. against the defendant Ramjilal in respect of the property in question because Ramjilal was not permitting the pilgrims and the Sadhus to stay therein. The defendant Ramjilal admitted in the course of his evidence as D. W. 5 that the plaintiffs had filed an objection before the Tehsildar when one Chothmal sought permission to build a shop in front of the trust property in 1951. It has also been proved that the plaintiff Mangilal had conducted certain proceedings before the Municipal Board Gangapur as a representative of the residents of the town in connection with the trust property in question. In support of this allegation, the plaintiffs have also produced a copy of the judgment of the Board of Revenue dated 11th February, 1939, marked Ex. 15. It was held by this judgment that the trust property in question was meant to be used for the stay of Sadhus and pilgrims.
9. From the aforesaid facts, the learned single Judge came to the conclusion that the plaintiffs had a genuine interest in the preservation and proper management of the trust property and were therefore competent to maintain the suit.
10. Learned counsel for the appellants has urged that at best the plaintiffs have only been able to show their remote interest in the property in question and not a real and substantive interest. In support of his contention, he has placed strong reliance on AIR 1967 SC 1415 (supra). On the facts and circumstances of that case, their Lordships were pleased to hold that the plaintiffs as lambardars and followers of Sikh religion cannot be said to have interest entitling them to file the suit in respect of the property in dispute which was an institution running a free kitchen meant for Nirmala Sadhus. However as a matter of principle, their Lordships were pleased to refer to the following observations cited in Vaidvanatha Ayyar v. Swaminatha Ayyar, AIR 1924 PC 221 (2).
'They agree with Sir John Wallis that the bare possibility, however remote, that a Hindu might desire to resort to a particular temple gives him an interest in the trust appears to defeat the object with which the Legislature inserted these words in the section. That object was to prevent people interfering by virtue of this section in the administration of charitable trusts merely in the interests of others and without any real interests of their own.'
In the present case it cannot be said that] the plaintiffs were interfering by virtue of Section 92, C. P. C. merely in the interests of others without any real interests of their own. As stated above, they had been constantly making serious efforts to preserve and protect the property hi which they had evinced their keen interest. In fact they were themselves deriving benefit out of the property by using the same. The words used in the section do not indicate that the plaintiffs must have a direct interest in the trust. The interest claimed by the plaintiffs is not one by virtue of then being members of the religion nor merely a remote, a fictitious or a contingent one. Whether a person has interest in the particular trust has to be determined on the facts and circumstances of each case and also on the facts bearing on the relation of the person to the trust with reference to which the suit is brought. As already stated above, the plaintiffs have proved themselves to be actual users of the trust property. In this view of the matter, we find ourselves in complete agreement with the learned single Judge that the plaintiffs have an interest in the trust property and were competent to institute the present suit.
11. Another contention raised by learned counsel for the appellants is that the property marked No. 2 in the plan Ex. X is not a part of the trust property and even though the defendants may have failed to prove it to be the private property of Ramjilal, the plaintiffs cannot succeed unless they are able to prove that it is a trust property. In this connection we wish to observe that no specific issue was raised on this point. On the other hand, the defendants challenged the plaintiffs' allegation regarding the whole of the 'Bagichi' being a trust property and that is why the relevant issue in this connection was framed as follows:--
'(1) Whether a 'Bagichi' known as Bhagatwali is situated near Mhow Darwaza in the town of Gangapur and whether there are pators, well, chattri and Dharamshala in it which have been built by public subscription and are Wakf property?, (Burden on the plaintiffs).'
The trial Court decided this issue against the plaintiffs mainly on the ground that the plaintiffs had not succeeded in proving the origin of the trust nor had they succeeded in establishing that the property in question had been constructed with public funds. At the stage of appeal, it was conceded on behalf of the defendants that the whole of the property except the 'Pator' marked No. 2 in the site plan Ex. X may be taken to be trust property. The learned single Judge in this connection also observed that the concession made by the learned counsel for the defendants was correct inasmuch as there was overwhelming evidence on the record to show that the Dharamshala shown at No. 1, the well shown at No. 3, the 'Chhatri' shown at No. 4 and the 'Pator' shown at No. 5 were undoubtedly the properties belonging to the public trust.
It is further clear that in view of the concession made by learned counsel for the defendants, the learned single Judge proceeded to decide only the limited question whether the 'pator' in question (shown at No. 2 in the plan Ex. X) is a part of the trust property or is the private property of the defendant Ramjilal. We have, therefore, to proceed on the assumption that the whole of the property shown in the plan Ex. X except the 'Pator' marked No. 2 is part of the trust property. At this stage, it may also be relevant to point out that the defendants have not put on record any documentary evidence in support of their title to the Pator Marked No. 2 in the plan Ex. X.
12. In this connection, learned counsel for the appellants invited our attention to Ex. A-6 which is a permission granted by the Municipal Board, Gangapur, to Ramjilal for building a Tator' after leaving a lane. This document, in our opinion, does not support the defendants' case. On the other hand, it supports the plaintiffs in their allegation that Ramanand Das had originally obtained permission from the Tehsildar for construction of this Pator as part of the trust property but be was not able to complete the construction and subsequently the defendant Ramjilal obtained permission for completing the construction of the Pator. It should be borne in mind that Ramjilal was one of the trustees and consequently the permission Ex. A-6 granted in his favour cannot lead to the conclusion that the Pator proposed to be constructed by him was his private property.
13. From the plaintiffs' side, a large number of documents have been exhibited to show that the Pator in question is a part and parcel of the trust property. The learned single Judge referred to these documents in detail. Learned counsel for the appellants has taken us through all these documents and to mention a few of them Ex. 4, Ex. 7, Ex. 14, Ex. 6, Ex. 10, Ex. 8 and Ex. 12. We do not find anything wrong with the interpretation put on these documents by the learned single Judge. In our opinion, Ex. 10 places the matter beyond the pale of controversy. It is an application of Ramanand Das made on 3rd July, 1935, before the Tehsildar Gangapur wherein he had stated that there is necessity for constructing a kitchen for proper use of the Dharamshala as the Dharamshala is being spoilt on account of cooking being carried in it. He, therefore, sought permission for constructing a Pator towards the north of the Dharamshala.
It is further clear from the statement of Bamanand Das Ex. 3 dated 4th July, 1935, that he wanted to construct the Pator in question within the compound wall of the Bagichi. These two documents, it cannot be assailed, do refer to the Pator in question. Learned counsel for the appellants had no explanation to offer against these documents except that the Pator was not actually constructed in pursuance of the application Ex. 10. That may be so. But the fact remains that Ramanand Das admitted in unequivocal terms that the place where he wanted to construct the Pator in question was a part and parcel of the trust property. It does appear to us that later on, Ramjilal who was appointed as one of the trustees by Ramanand Das in respect of the trust property started making efforts to appropriate a part of the trust property to his own use and with that end in view, he constructed a wall shown as AB so as to separate the pator in question from the Dharamshala.
But in our opinion, the construction of this wall AB cannot advance the defendants' case inasmuch as the well which has been admitted to be the trust property is situated on the side where the Pator is situate and it is not open to the defendants to argue that the land situated towards the north of the wall AB was the dividing line between Ramjilal's private property and the trust property. The finding arrived at by the learned single Judge in this connection is re-inforced by the fact that the Pator in question is situated in the same compound in which the Dharamshala and the other trust property are situate.
14. Some argument was advanced by the learned counsel for the appellants that the evidence regarding the existence of a compound wall was discrepant and inconsistent. We have examined this argument and are of the opinion that there is a compound wall demarcating the trust property. It may be that at some places the wall was not high; but the fact that the marks of demarcation were there stands fully established. It would, therefore, be reasonable to presume, unless proved to the contrary, that the Pator in question is a part and parcel of the trust property. The finding arrived at by the learned single judge in this connection appears to be just and proper and is based on good and legal evidence. We have, therefore, no hesitation in repelling the contention advanced on behalf of the defendants that the Pator in question was not proved to be a part of the trust property.
15. The natural corollary of this Ending is that the gift deed executed by Ramjilal in respect or the Pator in question in favour of his wife cannot be held to be valid and was rightly declared as void and ineffective. In this view of the matter, we do not find any force in Smt, Durga Devi's appeal.
16. Coming to the appeal filed by Suraj Narain, it is sufficient to point out that his father Ramjilal had acted in breach of trust in making a gift of a part of the trust property in favour of his wife Smt. Durga Devi. It further appears that both Sunderlal and Surajnarain have supported the gift made by Ramjilal and have pleaded that the Pator in question was not a part of the trust property. We are, therefore, in agreement with the learned single Judge that Surajnarain is not acting in the interest of the trust and is setting up a hostile title against the trust. Consequently it would not be just and proper to continue him as well as Sunderlal as trustees. The direction given by the learned single Judge for removal of me defendants Surajnarain and Sunderlal as trustees is quite proper and does not call for any interference.
17. No other point was pressed in support of these appeals.
18. The result is that we dismiss both the appeals but without any order as to costs of this Court