Charan Singh & ANR Vs. Darshan
Singh & Ors  INSC 272 (17 December 1974)
MATHEW, KUTTYIL KURIEN BHAGWATI, P.N.
CITATION: 1975 AIR 371 1975 SCR (3) 48 1975
SCC (1) 298
CITATOR INFO :
D 1991 SC 221 (9)
Section 92 of C.P.C.-Consent of Advocate
General for instituting a suit-Whether allegations in the plaint to be seen for
determining whether the suit is of the nature mentioned in section 92-Whether
substance of the nature of the suit to be taken into consideration-Whether
reliefs mentioned in section 92 should be present in the plaint.
Suit filed in a representative capacity
whether abates on the death of one of the plaintiffs.
The respondents field a suit against
appellant No. 1 for permanent injunction restraining him from interfering with
the Guru Garanth Saheb, for religious recitals in the Darbar Saheb as well as
restraining him from interfering with the rights of reciting the Guru Garanth
Sahib and holding and joining the religious congregations and Satsang in the
Gurudwara. The villagers dedicated certain land to the Granth Saheb in the year
1897. Several persons succeeded as the trustees, the appellant being the last
one at the relevant time. The grievance made in the suit was that the appellant
was committing a breach of trust by not using the Dera in general and Darbar
Saheb in particular for the purposes for which the same was dedicated. The
Trial Court held that the suit was not maintainable in the absence of the
consent of the Advocate General as required by section 92 of the Civil
Procedure Code. The First Appellate Court affirmed the decision of the Trial
Court. The Single Judge of the High Court in Regular Second Appeal dismissed
the plaintiff's appeal on the ground that the suit was hit by section 92 of the
Civil Procedure Code. On grant of leave under clause 10 of the Letters Patent.
Bench allowed the appeal and remitted back the case to the Trial Court holding
that the suit was not barred by section 92 of the Code.
On appeal by Special Leave it was contended
before this Court that (1) The judgment of the High Court in relation to
section 92 of the Code is erroneous in law. The suit was barred under the said
provision of the Code; (2) On the death of one of the plaintiffs appellants
during the pendency of the second appeal in the High Court the whole of the
appeal abated and ought to have been dismissed as such.
Allowing the appeal.
HELD : Since the suit has been filed in a
representative capacity on the death of one of the plaintiffs it did not abate.
The decision in Raja Anand Rao followed. [53C]
HELD FURTHER : The plaint alleges breach of
duty on the part of the trustee and the plaintiffs seek the court's aid against
the trustee for forcing him to discharge his obligations by due performance of
his duties. The present suit was a suit for a decree under section 92 of the
Code and since it was not filed in conformity with the requirements of that
provision of law it was not maintainable. It is well settled that the
maintainability of the suit under section 92 of the Code depends upon the
allegations in the plaint and does not fall for decision with reference to the
averments in the written statement.
The plaintiffs in their plaint did not in
terms ask for the one or the other reliefs mentioned in section 92(1). They,
however, alleged acts of breach of trust, mismanagement, undue interference,
with the right of the public in the worship of Granth Saheb. They wanted a
decree of the court against the appellants to force him to carry out the
objects of the trust and to perform his duties as a trustee. [57A-B] ARGUMENTS
For the Appellants : On reading the entire plaint the reliefs claimed are
covered by s. 92(1)(a) to (h) Code of Civil Procedure.
(i)The plaint clearly shows that the property
involved is trust property and that the trust is a public trust or charitable
and religious nature.
49 (ii)The plaint also shows that the aim was
for benefit of the public.
(iii) Reliefs claimed fall within Sub-Clause
(e)-The place where Guru Granth Sahib was placed was called "Darbar
Sahib" where it was to be recited and where Sat Sang and Amrit Pan
Ceremony were to be held. The reach alleged is that the appellant is not using
the "Darbar Sahib,, for the purpose for which it 'was dedicated and
further says that the villagers have a right to recite and worship Granth Sahib
installed in the Dera in general and Darbar Sahib in particular and that the
appellant has stopped the villagers from doing so. Relief claimed is that the
Defendants should be restrained from interfering with the maintaining of Granth
Sahib for religious recitations in the Darbar Sahib in the Dharamsala or Dera.
Therefore, the respondents required
directions of the court to demarcate the exact location of Darbar Sahib within
the Dera Jaimal Singh where Granth Sahib is to be located and worshipped etc.
Such a suit relates to the administration of
the said trust and falls within subclause (e) of s. 92(1).
Further the directions required involve
framing of a scheme for time for worshipping the Granth Sahib or for its
recitation and for holding Sat Sang and Amrit Pan Ceremony.
Therefore, the suit falls within s. 92(1)(g).
In any case the suit falls within Sub-clause
(h).-The defendants contention is that the scope of s. 92(1)(a) to (h) should
involve administration of the Trust Property.
Sub-Clause (a) to (g) describe some of the
administrative problems arising in a particular case as all such problems could
not be easily stated in a statutory provision. Any suit filed to establish
existence of a trust or to establish title of the trust to a piece of property
would not be covered by any sub-clause of s. 92.
The plaintiffs did not contest that the suit
was not covered by clause (h) before the First Appeal Court, and also vide
Judgment of the High Court. In substance the complaint is that the appellant
contrary to purpose of the Trust is pre- venting the villagers etc, from
worshipping and reciting Granth Sahib in the Darbar Sahib and is preventing
them access there to hold Sat Sang and other ceremonies. These breaches are
obviously in the course of the administration of the Trust. and must be held to
be covered by sub-clause (h).
Some of the plaintiffs have died during the
pendency of the Second Appeal in the High Court and their legal representatives
were not brought on the record. Therefore, the appeal had abated against them.
Defendants had argued that the appeal had abated in to but this plea was
rejected by the Single Judge. The defendant-, filed cross objection against
this decision before the Letters Patent Bench but the same were dismissed
If it be held that the suit was filed for
public benefit in a representative capacity then this point is conceded to have
no force. However, if it be held that the suit was to enforce individual rights
then the appeal had abated in toto as otherwise there will be conflicting
decisions whether a suit is covered by s. 92 or not.
Under s. 5 of the Punjab Common Lands
(Regulation) Act 18 of 1961 all Shamlat Lands vest in the village Panchayat.
The land in dispute is Shamlat land, therefore, the plaintiffs or villagers
could not file a suit relating to this Shamlat land. Plaintiffs case is that
under s. 2(g) (ix) this land is used as a place of worship and, therefore, is
not covered by this Act. The defendants case is that the present institution is
not a place of worship as Radha Swamis do not carry on worship at all at any
For the respondents : The substance of the
plaint is (1) (a) that the defendant is not using the Dera in general and
Darbar Sahib in particular for the purpose for which the same are dedicated.
(b) that the defendant alleges that "maintenance of the Guru Granth Sahib
and Darbar Sahib and access of the people to Dera and Darbar Sahib"
depends on his sweet will and discretion. (c) that the defendant has a right
not to allow any person to enter Dera and recite -L379Sup CI/75 50 Granth
Sahib. (d) that the plaintiffs have a right to worship in Dera and Dar bar
Sahib and recite Granth Sahib.
(e) that the plaintiffs have a right to set
that Dharmsala Dera and Gurdwara is used for the purpose and fulfillment of
which the same is established. (2) In the plaint thus the existence of a trust
and its denial by the defendant not only by not using it for the purpose of
dedication but also openly asserting a hostile right that it is his sweet will
to permit even access to the Dera are alleged. Thus the allegation in substance
and form is that the existence of trust and reciting Granth Sahib is denied by
defendant and he places obstruction to the free access of the beneficiaries of
(3)The relief claimed is for injunction to
restrain the defendant from interfering with maintenance of Guru Granth Sahib
in Darbar Sahib and from reciting the same; which it is submitted is not
covered by any of the sub clauses of s. 92(1) C.P.C. and therefore s. 92 C.P.C.
is not attracted.
(4)That since the said relief could not be
covered by any other sub-clause an attempt was made by the appellant to bring
the relief under sub-clause (h) of s. 92(i) which read as under "granting
such further or other relief as the nature of the case may require." This
clause as held by Privy Council in 1928 PC. 16 must be read not in isolation
from but ejusdem generis to the other clauses of the sub-section. It is
intended to cover up such other reliefs that may be necessary in order to
effectively grant any one of the reliefs mentioned therein the earlier clauses
something ancillary or akin to them or some relief which follows as a necessary
corollary flowing there from.
It cannot be construed to mean some such
relief which in its nature and substance something wholly different from them
and not covered by any of the earlier sub clause (a) to (g).
It if were so then it would cover all the
various reliefs that can conceivably be claimed in a suit based on the
allegation of breach of trust. That could not be the intention of the
legislature otherwise nothing would be easier for the legislature to say that
for the grant of any relief based on the allegations of breach of trust the
sanction of advocate General would be a precondition for the institution of
such a suit.
The intention appears to be clear that in
suits based on allegations of breaches of trust of charitable and religious
nature where some. what may be termed drastic reliefs as contemplated in
sub-clause (a) to (g) of s. 92 (1) C.P.C. are prayed then in only such cases
would the sanction be needed.
Thus suits for declaration of trust are out
side the purview of s. 92, so also sents for declaration and possession. On
principle there is no difference in relief of injunction from that of
declaration. In fact relief of injunction has been held to be not covered among
the relief contemplated in sub-clauses (a) to (h).
5.A distinction was sought to be made between
suits where allegations of total denial by defendant of existence of trust are
made in a plaint from suits where breaches by defendant of trust or duties only
are alleged and it was suggested that for the former suits no sanction needed
and for the latter sanction was necessary.
The said contention is not enable; firstly
the denial of the existence of trust is also a breach of trust. and secondly
nothing would be easier to circumvent the said condition by alleging denial by
the defendant of the trust in the plaint and thereafter seeking reliefs which
admittedly fall within sub clauses (a) to (g) of s. 92(1). To put it conversely
and can it be suggested that where the allegations are that defendant is
denying the trust but relief prayed for is removing the trustee which is
clearly covered by sub clause (a), no sanction would be needed.
It is submitted that the emphasis in section
92 C.P.C. is not on the manner in which breach of trust is alleged whether it
is by denial of existence of trust or which admitting the existence of trust or
while admitting the existence of trust the defendant does not perform his
duties but the emphasis is on the reliefs sough for purposes of sanction.
51 6.It is further submitted that though
allegation in plaint are primarily to be looked at for this purpose but where
parties have led evidence reference to the same have also been made to find out
the real nature of the suit. (see 1974 Vol. 2, S.C.C. Part X 695).
In the present case defendant in his written
statement has denied the existence of trust for reciting Granth Sahib.
CIVIL APPELLATE JURISDICTION : Civil Appeal
No. 505 of 1974.
Appeal by Special Leave from the Judgment
& Order dated the 13th December, 1973 of the Punjab & Haryana High
Court in L.P.A. No. 573 of 1971.
Bishan Narain, M. C. Bhandare, Nandtal
Balkrishan Lulla, Nishat Singh Garewal and K. J. Johan of J. B. Dadachanji
& Co., for the Appellants.
B. P. Maheshwari and Suresh Sethi for the
The Judgment of the Court was delivered by
UNTAWALIA, J.-The plaintiffs respondents, in this appeal filed by the
defendants appellants by special leave of this Court from the decision of the
High Court of Judicature of Punjab and Haryana instituted a suit in the year
1963 against appellant no. 1 alone (for the sake of brevity described as the
appellant hereinafter in this judgment) praying for a decree for permanent
injunction against him to restrain him 'from interfering with the maintaining
of the Guru Granth Sahib for religious recitals in the Darbar Sahib in the
Dharmsala also known as Dharmsala Dera Baba Jaimal Singh situated in village
Balsarai Tehsil and District Amritsar as also restraining him from interfering
with the plaintiffs and other satsang is rights of reciting the Guru Granth
Sahib and holding and joining the religious congregations and Satsang in the
above mentioned Gurdwara Baba Jaimal Singh." About 70 years prior to the
institution of the suit one Sant Baba Jaimal Singh used to reside and practise
spiritual sadhana at the place aforesaid. The residents of village Balsarai held
him in great respect because of his high spiritual achievements and noble
living. He got a Dharamsala built which came to be known as Gurdwara and
according to the case of the plaintiffs Guru Granth Sahib was also installed
there. The villagers gifted and dedicated 11 kanals, 16 marlas of land out of
village Shamilat to the Granth Sahib in the year 1897. Several persons
succeeded as the Manager/Trustee or Head of the Institution so established one
after the other after the demise of Sant Baba Jaimal Singh the appellant being
the last one at the relevant time. The plaintiffs who filed the suit in a
representative capacity on behalf of the devotees of the Gurdwara in the first
instance had wanted to institute the suit after obtaining the consent of the
Advocate-General of Punjab in accordance with section 92 of the Civil Procedure
Code-hereinafter referred to as the Code. But they failed to obtain the consent
of the Advocate-General. Later on the plaintiffs instituted the suit
endeavouring to frame it in such a manner so as to take it out of the ambit of
section 92 of the Code. The grievance of the plaintiffs in the suit has been
that the appellant Was committing a breach of trust by 52 not using the, Dera
in general and Darbar Sahib in particular for the purpose for which the same
He had started denying the rights of the
people to the Dera and Darbar Sahib and Guru Granth Sahib asserting that
allowing them to do so depend, upon his sweet will and discretion. The
plaintiffs, claiming a right in the institution for the Granth Sahib made a
grievance that the appellant was interfering with their right and was not
discharging his duties as he ought to do in accordance with the objects of the
religious institution in question. In substance the relief claimed against the
appellant is to prevent him from committing any breach of the trust and to
direct him to perform his duties as a Manager or Trustee of the religious
institution to carry out its objects.
Several pleas were raised by the appellant in
his written statement to resist the suit. Many of them were by way of
preliminary objections to the maintainability of the suit.
Tirlok Singh, appellant no. 2 and two others
were added as defendants 2 to 4 in the suit at their instance. 'The Court of
the Subordinate Judge, Second Class at Amritsar framed as many as 7 preliminary
issues and decided most of them in favour of the plaintiffs. But the issue as
to whether the suit was competent in the absence of the consent of the
Advocate-General under section 92 of the Code was decided against the
plaintiffs. So the suit was dismissed. The fact that the institution was a
Public Trust of a religious nature and that the suit had been filed by the
plaintiffs in a representative capacity are no longer in dispute. One of the pleas
taken by the appellant was that the suit was barred in view of the provisions
of law contained in the Punjab Village Common Lands (Regulation) Act, 1961,
Punjab Act No. 18 of 1961. But this plea was rejected by the 'Trial Court. From
the dismissal of the suit plaintiffs went up in appeal. The first Appellate
Court affirmed the decision of the Trial Court. They went up in a regular
second appeal before the High Court. A learned Judge of the High Court
dismissed the plaintiffs appeal on the ground that their suit was hit by
section 92 of the Code. One of the plaintiffs and two of the added defendants
namely defendants 3 and 4 died during the pendency of the second appeal in the
High Court. Their heirs were not substituted.
The appellant's plea that the appeal had
abated as a whole was not accepted by the learned single Judge. He also held
against him on the point of the suit being allegedly barred under Punjab Act 18
of 1961. On grant of leave under clause 10 of the Letters Patent the case was
taken further before the Letters Patent Bench. The learned Judges constituting
the Bench have allowed the Letters Patent appeal, remitted back the case to the
Trial Court holding in favour of the respondents that the suit is not barred
under section 92 of the Code. The surviving two defendants have come up to this
Mr. Bishan Narain, learned counsel for the
appellant, urged the following points in support of the appeal :
(1) The judgment of the High Court in
relation to section 92 of the Code is erroneous in law. The suit was barred
under the said provision of the Code.53 (2) The plaintiffs had no locus standi
to institute the suit as the property of the institution vested in the
Panchayat under Punjab Act 18 of 1961.
(3) On the death of one of the plaintiffs appellants
during the pendency of the second appeal in the High Court the whole of the
appeal abated and ought to have been dismissed as such.
The last two points may be shortly disposed
of as they have to be stated merely to be rejected. Point no. (2) was eventually
given up as it was completely devoid of substance. since the suit had been
filed in a representative capacity, it is clear that on the death of one, of
the plaintiffs it did not abate. In Raja Anand Rao v. Ramdas Daduram and others
(1) it has been said Lord Dunadin at page 16 "There was also a point that
the person who originally raised the suit and got the sanction having died the
suit could not go on, but there does not seem any force in that point either,
it being a suit which is not prosecuted by individuals for their own interests,
but as representatives of the general public. It is plain that the second
appeal did not lose its competency on the death of one of the plaintiffs
appellants. The only point which requires discussion and determination in this
appeal is whether the suit filed by the plaintiffs was barred under Subsection
(2) of section 92 of the Code.
It is well-settled that a suit of the nature
envisaged by section 92(1) of the Code to obtain a decree for any one or more
of the reliefs enumerated in clauses (a) to (h) of the Code has to be filed by
the Advocate-General or two or more persons having an interest in the Trust
with the consent in writing of the Advocate-General. Subsection (2) provides
that save under certain circumstances......... no suit claiming any of the
reliefs specified in sub-section (1) shall be instituted in respect of any such
trust as is therein referred to except in conformity with the Provisions of
that sub-section." Out of the 3 conditions which are necessary to be
fulfilled for the application of section 92, two are indisputably present in
this case viz. (1) the suit relates to a Public Charitable or Religious Trust;
(2) it is founded on an allegation of a breach of trust and the direction of
the Court is required for administration of the trust. The debate and dispute
between the parties centered round the requirement of the fulfillment of the
third condition namely whether the reliefs claimed are those which are
mentioned in sub-section (1) of section 92 of the Code.
A suit may be instituted under section 92(1)
to obtain a decree- (a) "removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(cc)directing a trustee who has been removed
or a person who has ceased to be a trustee, to deliver possession of any trust
property in his possession to the person entitled to the possession of such
(1) 48 I.A.R 12.
54 .lm15 (d) directing. accounts and
inquiries-, (e) declaring-what proportion of the trust-property or of the interest
therein shall be allocated to any particular object of the trust;
authorizing the whole or any part of the
trust-property to be let, sold, mortgaged or exchanged;
(g) settling a scheme; or (h) granting such
further or other relief as the nature of the case may require." The High
Court in the Letters Patent appeal has taken the view that the relief sought
for in the suit does not fall under any of the clauses (a) to (h) of section 92
of the Code. Learned counsel for the appellant has assailed this view and
submitted that the relief sought for falls under clause (e) or (g) or in any
event under clause (h). In our judgment the relief sought for in this case does
not strictly or squarely fall within clause (e) or (g) but is very much akin to
either and hence is covered by the residuary clause (h).
Lord Sinha delivering the judgment of the
Judicial Committee of the Privy Council in Abdur Rahim and others v. Syed Abu
Mahomed Barkat Ali Shah and others(1) rejected the argument that the words
"such further or other relief as the nature of the case may require"
occurring in clause (h) must be taken, not in connection with the previous
clauses (a) to (g) but in connection with the nature of the suit. The argument
was that any relief other than (a) to (g) in the case of an alleged breach of
an express or constructive trust as may be required in the circumstances of any
particular case was covered by clause (h). It was repelled on the ground that
the words "further or other relief" must on general principles of
construction be taken to mean relief of the same nature as clause (a) to (g) ,
It would be noticed that the word used after clause (g) and before clause (h)
is "or". It may mean "and" in the context, or remain
"or' in the disjunctive sense in a given case. If any further relief is
asked for in addition to any of the reliefs mentioned in clauses (a) to (g) as
the nature of the case may require, then the word "or" would mean
"and". But if the relief for is other relief which is not by way of a
consequential or additional reliefs in terms of clause (a) to (g), then the
word "or" will mean "or". The other relief however, cannot
be of a nature which is not akin to or of the same nature as any of the reliefs
mentioned in clauses (a) to (g). According to the plaintiffs' case one of the
objects of the religious trust was the worship of Granth Sahib and its recital
in congregations of the public. In the suit a decree declaring what portion of
the trust property should be allocated to the said object could be asked for
under clause (e). The plaintiffs could also ask for the settling of a scheme
under clause (g) alleging mismanagement of the religious trust on the part of
the trustees. In the settlement of the scheme could be included the worship and
recital of Granth Sahib the holy Granth.
The plaintiffs in their plaint did not (1)
A.I.R. 1928 Privy Council, 16: 55 Indian Appeals 96.
55 in terms. ask for the one or the. other.
They., however, alleged acts of breach of trust, mismanagement, undue
interference with the right of the public in the worship of Granth Sahib. They
wanted a decree of the Court against the appellant to force him to carry out
the objects of the trust and to perform his duties as a Trustee. Reading the
plaint as a whole it is not a suit where the plaintiffs wanted a declaration of
their right in the, religious institution in respect of the Granth Sahib. But
it was a suit where they wanted enforcement of due performance of the duties of
the trustee in relation to a particular object of the trust. It is well-settled
that the maintainability of the suit under section 92 of the Code depends upon
the allegations in the plaint and does not fall for decision with reference to
the averments in the written statement.
In Mahant Pragdasji Guru Bhagwandasji v.
Patel Ishwarlalbhai Narsibhai and others(1) it was pointed out at page 517 by
Mukherjea, J, as he then was, speaking for the Court "A suit under section
92, Civil Procedure Code, is a suit of a special nature which presupposes the
existence of a public trust of a religious or charitable character. Such suit
can proceed only on the allegation that there is a breach of such trust or that
directions from the court are necessary for the administration thereof, and it
must pray for one or other of the reliefs that are specifically mentioned in
the section. It is only when these conditions are fulfilled that the suit has
got to be brought in conformity with the provision of section 92, Civil
Procedure Code. As was observed by the Privy Council in Abdur Rahim V. Barkat
Ali(2), a suit for a declaration that certain property appertains to a
religious trust may lie under the general law but is outside the scope of
section 92, Civil Procedure Code." In a very recent decision, this Court
speaking through one of us (Mathew, J) in the case of Swami Paramatma. nand
Saraswati and another v. Ramji Tripathi and another(3) has reiterated the same
view in paragraph 10 at page 699 wherein it has been further added "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." Mr. B. P. Maheshwari, learned counsel for the
respondents placed strong reliance upon a decision of the Patna High Court in
Ganpat Pujari v. Kanaiyalal Marwari(4) and the decision of this Court in
Harendra Nath Bhattacharya & ors. v. Kalimaram Das-dead by (1) 
S.C.R.513. (2) (1928) 55 Indian Appeals, 96.
(3)  11 S.C.C. 695. (4) A.I.R. 1933
(5) 2 S.C.R. 492.
56 Lrs.(5) In the Patna case the first relief
asked for in the suit was for an adjudication of the property in the suit
belonging to the general public and for a declaration of their right to that
effect. The Thakurbari in question was claimed to be a public property to which
the entire Hindu community was entitled to go and worship. The appeal arising
out of the suit came up before Wort and Fazal Ali, JJ as they then were. There
was a difference of opinion as to the application of section 92 of the Code
between them, the latter taking the view that section 92 of the Code was not a
bar. On reference to the third learned Judge, Kulwant Sahay, J. agreeing with
the view of Fazal Ali, J held that the relief claimed in the suit was not
covered by clauses (a) to (h) of section 92. The facts of the instant case are
different and the Letters Patent Appeal Bench of the Punjab High Court
committed an error in applying the ratio of the Patna case to the facts of the
present case. In the case of Harendra Nath Bhattacharya & Ors. v. Kalimram
Das Dead by L.Rs. (supra), Grover, J delivering the judgment of this Court
referred to the analysis made by the High Court as to the reliefs claimed in
the plaint of that suit. In the main there were 4 reliefs as enumerated at
pages 498 and 499 of the report. Reliefs (1) (2) and (4 ) were clearly outside
the scope of section 92 of the Code. Learned counsel for the respondents
submitted that relief no. 3 which was very much akin to the relief in the
present suit was also held to be a relief not covered by any of the clauses of
sub-section (1) of section 92 of the Code. In our opinion the contention is not
sound and cannot be accepted. The third relief in that case as analysed by the
Court was in the following terms "(3)" For a declaration that the
plaintiffs as Bhakats of the Satrawas entitled to possess their own Basti and
paddy landsand that they had a right to access to the use of the Satra for
various religious purposes." There were two parts of the said relief-one a
declaration that the plaintiffs as Bhakats of the Satra were entitled to possess
their own Basti and paddy lands and the other that they had a right to access
to the use of the Satra for various religious purposes. Such a relief could not
come under clause (h) because it was mainly concerned with the establishment of
the rights of the plaintiffs in the lands as well as in the religious
institution. In the plaint of the instant case the relief claimed is not
primarily for the establishment of the right of the public to the religious
institution. It recites the facts as to the right without mentioning any
appreciable dispute concerning it, mainly 57 alleges breach of duty on the part
of the trustee, and the plaintiffs seek the court's aid against the trustee for
forcing him to discharge his obligations by due performance of his duties. In
our judgment therefore the Courts below were right in taking the view that the
present suit was a suit for a decree under section 92 of the Code and since it
was not filed in conformity with the requirement of the Code and since it was
not filed in conformity with the requirement of the said provision of law it
was not maintainable. The contrary view taken by the Division Bench of the High
Court in the Letters Patent Appeal is not correct.
In the result the appeal succeeds, the
judgment of the High Court dated the 13th December, 1973 in L.P.A. No. 573 of
1971 is set aside. In the circumstances, we make no order as to costs in this
P.H.P. Appeal allowed.