# Satish Chandra Mishra v. Shri Gopal Mandir Virajman Thakur Ji Maharaj & Radha Ji

- **Citation:** (2024) 5 ILRA 1224
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2024-05-02
- **Case number:** Matter Under Article 227 No. 1073 of 2024
- **Bench:** Ajit Kumar
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/satish-chandra-mishra-v-shri-gopal-mandir-virajman-thakur-ji-maharaj-radha-ji-52025
- **Pages:** 10

## Headnote

i). There being a serious title dispute as to
the management of the Temple in question
between the contesting plaintiff/ respondent,
a Trust and one Naresh Chandra Agarwal,
who claimed to be a Shebait in a suit
instituted by later for permanent prohibitory
injunction, the plaint in eviction suit before
the Judge, Small Causes Court Act was
liable to be returned.

ii). Both the courts below have manifestly
erred in failing to appreciate a fact that
petitioner having been depositing the rent in
an account managed by Naresh Chandra
Agarwal, the petitioner was not liable to be
treated as tenant of Trust to maintain a suit
for eviction at its instance.

## Text

1224 INDIAN LAW REPORTS ALLAHABAD SERIES
of Act, 1916 which denotes that not
complying the provisions under section 20
of the Act, 1916 would be resulted into
rejection of election petition. Finding
returned by learned Election Tribunal has
not specifically been denied in the writ
petition. Remaining point advanced by the
learned counsel for the petitioner is still
open to be raised before the Election
Tribunal. There is no justifiable ground to
entertain the instant writ petition and
interfere in the order impugned dated
03.07.2023 passed by Learned District
Judge (Election Tribunal), which is hereby
affirmed. There is no illegality, perversity or
irregularity in the order under challenge so
as to warrant the indulgence of this Court in
exercise of its extraordinary jurisdiction
under Article 226 of the Constitution of
India. There is nothing on the record to
demonstrate as to how the present petitioner
is prejudiced, or if there is any likelihood of
causing miscarriage of justice to the
petitioner, owing to the order under
challenge.

22. Resultantly, instant writ
petition, being misconceived and devoid of
merits, is dismissed with no order as to cost.
----------
(2024) 5 ILRA 1224
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 02.05.2024

BEFORE

THE HON'BLE AJIT KUMAR, J.

Matter Under Article 227 No. 1073 of 2024

Satish Chandra Mishra ...Petitioner
Versus
Shri Gopal Mandir Virajman Thakur Ji
Maharaj & Radha Ji ...Respondent

Counsel for the Petitioner:
Puneet Sahai Bisaria

Counsel for the Respondent:
Neera Yadav, Mayank Sinha

Civil Law - Provincial Small Causes Court
Act, 1887 - Section 23 - Petitioner, a
tenant in suit property, for his ejectment,
Small Cause Suit has been instituted by
respondent, who claimed to be Trust
managing the affairs of Temple -Petitioner
filed application u/s 23 for return of plaint,
on the ground that there was serious title
dispute between contesting respondent
and Naresh Chandra Agarwal who claimed
himself to be Shebait of Temple, instituted
a
regular
suit
seeking
permanent
prohibitory
injunction
-
Application
rejected - Revision filed, also dismissed -
Impugned order - Held, where a party has
instituted a suit for injunction would by
itself not become a title dispute - Once Mr.
Naresh Chandra Agarwal, applied for bail,
himself admitted that he was not the
Manager of Temple, no occasion for tenant
to raise a title dispute as a third party -
Petitioner, not raised any title dispute as to
his status - How a tenant can non-suit the
plaintiff in an eviction suit on the ground
that someone has instituted a suit for
injunction - If remotely some dispute is
there, if accepted, tenant doesn't get a
right to stay back in tenanted premises
opposing the eviction suit. (Para 2, 3, 4, 15,
29)

Petition dismissed. (E-13)

List of Cases cited:

1. Mst. Bhagmani Devi Vs VIII A.D.J. and Anr.,
2011 (9) ADJ 567

2. Gurmala & ors. Vs Mohd. Ishaq & ors, (2013)
99 ALR 624

3. M. Siddiq (dead) through Legal
Representatives (Ram Janmabhumi Temple
Case) Vs Mahant Suresh Das & ors, (2020) 1
SCC 1

4. Mohd. Noor & ors.Vs Mohd. Ibrahim & ors,
(1994) 5 SCC 562
5 All. Satish Chandra Mishra Vs. Shri Gopal Mandir Virajman Thakur Ji Maharaj & Radha Ji
1225
5. Budhu Mal Vs Mahabir Prasad & ors., (1988)
4 SCC 194

6. Pratap Singh Vs IXth Additional District
Judge, Fatehpur & ors, 2000 (3) AWC 1995

(Delivered by Hon'ble Ajit Kumar, J.)

1. Heard Sri Tarun Agrawal, learned counsel
for the in the petitioner and Sri Ashish
Kumar Singh, learned counsel for the
respondent.

2. Petitioner before this Court is admittedly
a tenant suit property and it is for his
ejectment that Small Cause Suit No. 2 of
2018 has been instituted before the Judge,
Small Causes, Pilibhit by the contesting
respondent who claimed to be a Trust
managing the affairs of the Temple namely
Gopal Mandir Virajman Thakur Ji Maharaj
and Radha Ji.

3. Upon suit being instituted, petitioner
moved an application under Section 23 of
the Provincial Small Causes Court Act, 1887
for return of the plaint on the ground that
there was serious title dispute between the
contesting plaintiff/ respondent and one
Naresh Chandra Agarwal who claimed
himself to be Shebait of the Temple and it
was in that capacity that Mr. Agarwal had
instituted a regular suit seeking permanent
prohibitory injunction, being Original Suit
No. 195 of 2017.

4. Upon the said application filed under
Section 23 of the Act being rejected by the
Judge, Small Causes vide order dated
14.12.2022, petitioner preferred a revision
being No. 30 of 2023 which also came to be
dismissed on 28.11.2023 and hence this
petition.

5. The submission advanced by learned
counsel for the petitioner is two fold:
i). There being a serious title dispute as to
the management of the Temple in question
between the contesting plaintiff/ respondent,
a Trust and one Naresh Chandra Agarwal,
who claimed to be a Shebait in a suit
instituted by later for permanent prohibitory
injunction, the plaint in eviction suit before
the Judge, Small Causes Court Act was
liable to be returned.

ii). Both the courts below have manifestly
erred in failing to appreciate a fact that
petitioner having been depositing the rent in
an account managed by Naresh Chandra
Agarwal, the petitioner was not liable to be
treated as tenant of Trust to maintain a suit
for eviction at its instance.

6. Learned counsel for the petitioner Sri
Tarun Agrawal has relied upon a concurrent
bench judgment of this Court in Mst.
Bhagmani Devi v. VIII A.D.J. and Anr.,
2011 (9) ADJ 567. He has also relied upon
another judgment of this Court in the case of
Gurmala & Ors v. Mohd. Ishaq & Ors,
(2013) 99 ALR 624 and M. Siddiq (dead)
through
Legal
Representatives
(Ram
Janmabhumi Temple Case) v. Mahant
Suresh Das & Ors, (2020) 1 SCC 1.

7. Per contra, the argument advanced by
learned counsel for the plaintiff/ respondent
is that a suit for permanent prohibitory
injunction
may
invite
the
court
to
incidentally go into the question of title but
this suit by itself cannot become a
declaratory suit to raise a dispute of title by
the plaintiff claiming as Shebait.

8. It is argued that taking the plaint
allegations of the injunction suit in its
entirety, it is admitted to the alleged Shebait
that a Trust got created with the registration
of Trust Deed to manage the affairs of the
Temple and unless and until a decree to
1226 INDIAN LAW REPORTS ALLAHABAD SERIES
declare the Trust null and void in so far as
management of temple is concerned, is
prayed for, no title dispute prima facie can
be said to have been raised.

9. Learned counsel for the contesting
respondent has further argued that plaintiff
of injunction suit namely Naresh Chandra
Agarwal himself, upon being implicated in a
criminal case for selling away properties of
the Temple in collusion with the opposite
party, as tenant of the temple, applied for
bail, in which he denied himself to be
Manager of Temple property and this fact
having not been denied either in revision or
before this Court, it does not lie in the mouth
of the tenant to suggest that there was a
serious title dispute to non-suit the plaintiff
under Section 23 of the Act.

10. Having heard learned counsel for the
respective parties and having perused the
records, I find that core issue is as to whether
the suit filed by Naresh Chandra Agarwal
being O.S. NO. 195 of 2017 can be said to
be a title suit as against the plaintiff/
respondent, to non-suit him by the tenant in
a SCC suit.

11. It is true that germane to the concept of
title is a legal right to manage and dispose of
the property which also entails a right to
hold possession.

12. Looking to the entire plant allegations of
O.S. No. 195 of 2017, it transpires that the
father of Naresh Chandra Agarwal was
claimed to be the Manager of Temple
property and upon his death on 01.08.2000,
it was the Naresh Chandra Agarwal who had
been connected with the affairs of Temple.
Certain details of the property have been
given in paras 10 and 11 and the names of
tenants have also been given and he claimed
his right to receive rent from the tenants. In
para 13 of the plaint Naresh Chandra
Agarwal claimed that Ganesh Prasad Mishra
was the Pujari of the Temple and in that
connection he was allotted rooms on the
campus of the temple and his son Durga
Prasad and Chhote Lal were residing with
him and later on Durga Prasad started
residing in a Ayurvedic College and after the
death of Ganesh Prasad Mishra, the then
Manager Sohan Lal was managing the
affairs of the Temple. He stated that Chhote
Lal was carrying Pooja Archana activities
upon the guidance and dictates of his father
Lala Chaturbhuj. It was the second son of
Chhote Lal Mishra namely Dinesh Chandra
Mishra who used to assist his father in Pooja
Archana and when Chhote Lal died in 1992
then Durga Prasad Mishra started doing
Pooja and Archana and after retirement from
the service of the bank that he lodged some
first information report against Naresh
Chandra Agarwal in 2017 and created a
Trust Deed and was interfering with the
Pooja and Archana of the plaintiff and hence
he instituted suit for injunction.

13. The entire pleadings as have been raised
in the suit seeking permanent prohibitory
injunction while the Trust Deed has been
questioned but that has not been challenged.
Still further the pleadings do not in any
manner disclose that plaintiff of the suit
Naresh Chandra Agarwal was carrying out
any Pooja and Archana worship etc. or
managing the affairs exclusively to be a
Shebait. All that he claimed that father of
Dinesh Chandra Mishra was doing the
management of the Temple under the
guidance and dictates of his father Lala
Chaturbhuj and it is after the death of
Chhote Lal Mishra, Dinesh Chandra Mishra
was managing the affairs.

14. Thus, nowhere any claim of Shebait has
been set up in the entire plaint allegations
5 All. Satish Chandra Mishra Vs. Shri Gopal Mandir Virajman Thakur Ji Maharaj & Radha Ji
1227
except the plea that his father was managing
the Temple and so he would be entitled to
manage the Temple. This showed that he
wanted a declaratory decree in his favour but
conspicuously did not seek any relief of that
nature in the plaint.

15. Thus, in my considered view, merely
because there were some pleadings raised
tracing rights from his father, Naresh
Chandra Agarwal cannot be said to have set
up a serious title claim. A suit for injunction
is maintainable when there is a prima facie
title and possession both are claimed at the
same time. Further, I find that the trial court
has returned finding to the effect that while
applying for bail in a criminal case which
has also been referred to in injunction suit,
Naresh Chandra Agarwal made a plea that
he was not the Manager of the Temple
property.

16. This finding which has been returned by
the trial Judge has been affirmed in revision
and there is no whisper in the entire petition
that this finding is perverse. The trial court
as well as the District Judge sitting in
revision in my considered view have rightly
returned a finding that a mere allegation by
a tenant that he has been paying rent to the
Temple of which the Manager was Naresh
Chandra Agarwal only and who had also
instituted a suit for permanent prohibitory
injunction, would not entitle him to non-suit
the plaintiff in an eviction suit.

17. The judgment in the case of Mst.
Bhagmani Devi (supra) is distinguishable on
facts where the Court had framed issue
whether there existed any relationship of
landlord-tenant between the parties and it
was upon the issue no. 1 that court doubted
the title as admittedly the Maharaj of
Banaras was managing the affairs of temple
and the question arose as to whether
property belonged to Deity or in the name of
Maharaja Banaras as a custodian, whereas,
in the present case as per the own admission
in the plaint and looking to the entire plaint
allegations in the injunction suit, Naresh
Chandra Agarwal could not claim that he
was managing the affairs of the Temple.

18. Similarly, the judgment in the case of
Gurmala
&
Ors
(supra)
is
also
distinguishable on facts as in that case the
property was sold out by real owners and the
question arose as to in whose share the shop
fell. The rent suit filed by respondent nos. 1
and 3 for ejectment was dismissed holding
that
there
was
no
landlord-tenant
relationship. There is no such issue involved
in the present case as petitioner is admittedly
tenant of the Deity.

19. The principle of law as discussed in
paragraph no. 54 of the judgment is not
questionable but whether it applies in the
present case or not, is to be seen.

20. Looking to the facts of the present case,
I do not see that there is any serious dispute
of title so as to non-suit the plaintiff in this
eviction suit.

21. In so far as the judgment in the case of
Mohd. Noor & Ors v. Mohd. Ibrahim & Ors,
(1994) 5 SCC 562 where the Court
considered the question of transfer of
ownership and transfer of interest in the
property, is concerned, I do not see any such
question to be arising in the present case
unless and until the plaintiff Naresh Chandra
Agarwal in his suit questiones the Trust
Deed also and so declaratory decree to hold
it null and void. Such issue not being in
germane, more especially in view of the
pleadings raised in the plaint, I do not see
this judgment to be helping out in in any
1228 INDIAN LAW REPORTS ALLAHABAD SERIES
manner to the present petitioner to succeed
in getting the plaint returned.

22. Coming to the judgment in the case of
Ram Janmabhumi Temple (supra) cited by
learned counsel for the petitioner as he has
relied upon paragraph nos. 425, 430, 434,
435, 436, 437 and 438, the argument
advanced was that the role of Shebait is
different from the role of Pujari (worshiper)
and Hindu idol being a juristic person, the
entire endowed property vested in the idol
and Shebait being the Manager of the
Temple, would be a person who has a right
to sue on behalf of Hindu idol. Thus, it was
sought to be contended that Naresh Chandra
Agarwal having instituted a suit to set up a
title as a Shebait of the Temple, there arose
a serious dispute as to the title to manage the
affairs of the Temple inter se Shebait and
Trust. He submitted that any suit, therefore,
on behalf of Temple, if was to be brought by
Shebait, herein this case, it would have been
by Naresh Chandra Agarwal and so the
present suit for eviction before small cause
court
by
Trust
was
certainly
not
maintainable.

23. In order to appreciate the aforesaid
argument,
relevant
paragraphs
are
reproduced hereunder:

"425. Courts recognise a Hindu idol as the
material embodiment of a testator's pious
purpose. Juristic personality can also be
conferred on a Swayambhu deity which is a
self-manifestation in nature. An idol is a
juristic person in which title to the endowed
property vests. The idol does not enjoy
possession of the property in the same
manner as do natural persons. The property
vests in the idol only in an ideal sense. The
idol must act through some human agency
which will manage its properties, arrange for
the performance of ceremonies associated
with worship and take steps to protect the
endowment,
inter
alia
by
bringing
proceedings on behalf of the idol. The
shebait is the human person who discharges
this role.

430. The position of a shebait in Hindu law
is distinct from the position of a trustee in
English Law. Before the Privy Council in
Vidya Varuthi Thirtha v. Balusami Ayyar
[Vidya Varuthi Thirtha v. Balusami Ayyar,
1921 SCC OnLine PC 58 : (1920-21) 48 IA
302 : AIR 1922 PC 123] the question was
whether the terms "conveyed in trust" and
"trustee" as they appear in Article 134 of the
Limitation Act, 1908 apply to properties
endowed to the Mahant of a Hindu mutt. The
Privy Council rejected the contention that
persons managing endowed properties are in
the position of trustees under English Law.
Ameer Ali, J. held : (SCC OnLine PC)

"It is also to be remembered that a "trust" in
the sense in which the expression is used in
English Law, is unknown in the Hindu
system, pure and simple.? Hindu piety found
expression in gifts to idols and images
consecrated and installed in temples, to
religious institutions of every kind.?
Religious
institutions,
known
under
different names, and regarded as possessing
the same "juristic. capacity, and gifts are
made to them eo nomine ? When the gift is
directly to an idol or a temple, the seisin to
complete the gift is necessarily effected by
human agency. Called by whatever name, he
is only the manager and custodian of the idol
of the institution. ? In no case was the
property conveyed to or vested in him, nor
is he a "trustee" in the English sense of the
term, although in view of the obligations and
duties vesting on him, he is answerable as a
trustee
in
the
general
sense,
for
maladministration. ?
5 All. Satish Chandra Mishra Vs. Shri Gopal Mandir Virajman Thakur Ji Maharaj & Radha Ji
1229
? it would follow that an alienation by a
manager or superior by whatever name
called cannot be treated as the act of a
"trustee" to whom property has been
"conveyed in trust" and who by virtue
thereof has the capacity vested in him which
is possessed by a "trustee" in English law.

***
? Neither under the Hindu law nor in the
Mahomedan
system
is
any
property
"conveyed" to a shebait or a mutavalli in the
case of a dedication. Nor is any property
vested in him, whatever property he holds
for the idol or the institution he holds as
manager with certain beneficial interests
regulated by custom and usage."
 (emphasis supplied)

434. In addition to the duties that must be
discharged in relation to the debutter
property, a shebait may have an interest in
the usufruct of the debutter property. In this
view, shebaitship is not an office simpliciter,
but is also property for the purposes of
devolution. [ Approved by the Privy Council
in Ganesh Chunder Dhur v. Lal Behary
Dhur, 1936 SCC OnLine PC 53 : (1935-36)
63 IA 448 and Bhabatarini Debi v. Ashalata
Debi, 1943 SCC OnLine PC 1 : (1942-43)
70 IA 57.] This view has been affirmed by
this Court in Angurbala Mullick v.
Debabrata Mullick [Angurbala Mullick v.
Debabrata Mullick, 1951 SCC 420 : 1951
SCR 1125 : AIR 1951 SC 293] . The
controversy in that case was whether the
appellant, as the widow of the shebait, was
entitled to act as the shebait of the idol
instead of the minor son of the shebait born
from his first marriage who was the
respondent. It was contended that the office
of shebaitship would devolve in accordance
with the Hindu Women's Right to Property
Act, 1937. B.K. Mukherjea, J. speaking for
a four-Judge Bench of this Court accepted
this contention and held : (Angurbala
Mullick
case
[Angurbala
Mullick
v.
Debabrata Mullick, 1951 SCC 420 : 1951
SCR 1125 : AIR 1951 SC 293] , AIR p. 296,
para 11)

"11. ? But though a shebait is a manager and
not a trustee in the technical sense, it would
not be correct to describe the shebaitship as
a mere office. The shebait has not only
duties to discharge in connection with the
endowment, but he has a beneficial interest
in the debutter property. As the Judicial
Committee observed in the above case, in
almost all such endowments the shebait has
a share in the usufruct of the debutter
property which depends upon the terms of
the grant or upon custom or usage. Even
where no emoluments are attached to the
office of the shebait, he enjoys some sort of
right or interest in the endowed property
which partially at least has the character of a
proprietary right. Thus, in the conception of
shebaiti both the elements of office and
property, of duties and personal interest, are
mixed up and blended together; and one of
the elements cannot be detached from the
other. It is the presence of this personal or
beneficial interest in the endowed property
which invests shebaitship with the character
of proprietary rights and attaches to it the
legal incidents of property."

The Court held that a shebait has a beneficial
interest in the usufruct of the debutter
property. This beneficial interest is in the
form of a proprietary right. Though the role
of the shebait is premised on the
performance of certain duties for the idol
and the benefits are appurtenant, neither can
be separated from the other. Thus, office and
property are both blended in shebaitship, the
personal interest of a shebait being
appurtenant to their duties. [Affirmed in
Badri Nath v. Punna, (1979) 3 SCC 71;
1230 INDIAN LAW REPORTS ALLAHABAD SERIES
Profulla Chorone Requitte v. Satya Chorone
Requitte, (1979) 3 SCC 409.]

Pujaris
435. A final point may be made with respect
to shebaits. A pujari who conducts worship
at a temple is not merely, by offering
worship to the idol, elevated to the status of
a shebait. A pujari is a servant or appointee
of a shebait and gains no independent right
as a shebait despite having conducted the
ceremonies for a long period of time. Thus,
the mere presence of pujaris does not vest in
them any right to be shebaits. In Gauri
Shankar v. Ambika Dutt [Gauri Shankar v.
Ambika Dutt, 1948 SCC OnLine Pat 28 :
AIR 1954 Pat 196] , the plaintiff was the
descendant of a person appointed as a pujari
on property dedicated for the worship of an
idol. A suit was instituted for claiming
partition of the right to worship in the temple
and a division of the offerings. A Division
Bench of the Patna High Court held that the
relevant question is whether the debutter
appointed
the
pujari
as
a
shebait.
Ramaswami, J. held : (SCC OnLine Pat para
7)

"7. ? It is important to state that a pujari or
archak is not a shebait. A pujari is appointed
by the Shebait as the purohit to conduct the
worship. But that does not transfer the rights
and obligations of the Shebait to the purohit.
He is not entitled to be continued as a matter
of right in his office as pujari. He is merely
a servant appointed by the Shebait for the
performance of ceremonies. Where the
appointment of a purohit has been at the will
of the founder the mere fact that the
appointees have performed the worship for
several generations, will not confer an
independent right upon the members of the
family so appointed and will not entitle them
as of right to be continued in office as
priest."
436. A shebait is vested with the authority to
manage the properties of the deity and
ensure the fulfilment of the purpose for
which the property was dedicated. As a
necessary adjunct of this managerial role, a
shebait may hire pujaris for the performance
of worship. This does not confer upon the
appointed pujaris the status of a shebait. As
appointees of the shebait, they are liable to
be removed from office and cannot claim a
right to continue in office. The distinction
between a shebait and a pujari was
recognised by this Court in Sree Sree
Kalimata
Thakurani
of
Kalighat
v.
Jibandhan Mukherjee [Sree Sree Kalimata
Thakurani
of
Kalighat
v.
Jibandhan
Mukherjee, AIR 1962 SC 1329] . A suit was
instituted under Section 92 of the Code of
Civil Procedure, 1908 for the framing of a
scheme for the proper management of the
seva-puja of the Sree Sree Kali Mata
Thakurani and her associated deities. A
Constitution Bench of this Court, speaking
through J.R. Mudholkar, J. held : (AIR p.
1333, para 10)

"10. ? It is wrong to call shebaits mere
pujaris or archakas. A shebait as has been
pointed out by Mukherjea, J. (as he then
was), in his Tagore Law Lectures on Hindu
Law of Religious and Charitable Trusts, is a
human ministrant of the deity while a pujari
is appointed by the founder or the shebait to
conduct worship. Pujari thus is a servant of
the shebait. Shebaitship is not mere office, it
is property as well."

437. A pujari is appointed by the founder or
by a shebait to conduct worship. This
appointment does not confer upon the pujari
the status of a shebait. They are liable to be
removed for any act of mismanagement or
indiscipline which is inconsistent with the
performance of their duties. Further, where
the appointment of a pujari has been at the
5 All. Satish Chandra Mishra Vs. Shri Gopal Mandir Virajman Thakur Ji Maharaj & Radha Ji
1231
will of the testator, the fact that appointees
have performed the worship for several
generations does not confer an independent
right upon the appointee or members of their
family and will not entitle them as of right to
be continued in office as priests. Nor does
the mere performance of the work of a pujari
in and of itself render a person a shebait.

438. The position of a shebait is a
substantive position in law that confers upon
the person the exclusive right to manage the
properties of the idol to the exclusion of all
others. In addition to the exclusive right to
manage an idol's properties, the shebait has
a right to institute proceedings on behalf of
the idol. Whether the right to sue on behalf
of the idol can be exercised only by the
shebait (in a situation where there is a
shebait) or can also be exercised by the idol
through a "next friend" has been the subject
of controversy in the proceedings before us.
The plaintiff in Suit No. 3, Nirmohi Akhara
contends that the Nirmohis are the shebaits
of the idols of Lord Ram at the disputed site.
Mr S.K. Jain, learned Senior Counsel
appearing on behalf of Nirmohi Akhara,
urged that absent any allegation of
maladministration or misdemeanour in the
averments in the plaint in Suit No. 5, Devki
Nandan Agarwal could not have maintained
a suit on behalf of the idols as a next friend.
Mr Jain placed significant reliance on the
contention that the plaint in Suit No. 5 does
not aver any mismanagement by the
Nirmohis. Mr S.K. Jain urged that though
the plaintiffs in Suit No. 5 (which was
instituted in 1989) were aware of Suit No. 3
which was instituted by Nirmohi Akhara (in
1959) claiming as a shebait, the plaint in Suit
No. 5 does not challenge the position of
Nirmohi Akhara as a shebait. Consequently,
Nirmohi Akhara urged that a suit by a next
friend on behalf of the idol is not
maintainable." (Emphasis added)
24. Having gone through the aforesaid
paragraphs of the judgment of Ram
Janmbhumi case, I find that a distinction is
sought to be drawn between Shebait and the
Trust and so long as Shebait manages the
Temple property, the right to sue vests with
him to the exclusion of any person's right to
sue on behalf of Temple. Distinction is also
sought to be drawn between the Trust as
defined in English law and role of Trustee
distinguishable than a Mahant managing
Hindu Math to whom property is endowed.

25. In a nut shell the Hindu Idol becomes the
owner of the entire endowed property and a
Shebait or a Trust becomes custodian
thereof to the extent of management with
certain portion of it for the Shbait to survive
as Manager of the property but this certainly
will not be for a Trustee in case of Trust. A
worshiper/ pujari has been defined with a
status of a servant to be appointed by
Shebait and does not enjoy any right
independent of a Shebait.

26. Applying the above exposition of law
as discussed and laid down in Ram
Janmabhumi case to the facts of the
present case, looking to the pleadings
raised in injunction suit as discussed in
earlier part of this judgment, I do not see
Mr. Naresh Chandra Agarwal to be having
a status of a Shebait to raise serious
dispute of title.

27. The law is well settled that Section 23 of
the Small Cause Courts Act is not a
provision that makes obligatory for Small
Cause Courts to invariably return the plaint
once a question of title is raised by a tenant.
The principle is that even the Small Cause
Court can incidentally go into the title. In
Budhu Mal v. Mahabir Prasad and others,
(1988) 4 SCC 194 vide para 10 the Court
observed thus:
1232 INDIAN LAW REPORTS ALLAHABAD SERIES
"10. It is true that Section 23 does not make
it obligatory on the court of small causes to
invariably return the plaint once a question
of title is raised by the tenant. It is also PG
NO 243 true that in a suit instituted by the
landlord against his tenant on the basis of
contract of tenancy, a question of title could
also incidentally be gone into and that any
finding recorded by a Judge, Small Causes
in this behalf could not be res judicata in a
suit based on title. It cannot, however, be
gainsaid that in enacting Section 23 the
Legislature must have had in contemplation
some cases in which the discretion to return
the plaint ought to be exercised in order to
do
complete
justice
between
the
parties. ................................... If the suits
cannot be construed to be one between
landlord and tenant they would not be
cognizable by a court of small causes and it
is for these reasons that we are of the opinion
that these are such cases where the plaints
ought to have been returned for presentation
to appropriate court so that none of the
parties was prejudiced." (Emphasis added)

28. In this regard it is also necessary to refer
to the judgment of this Court in the case of
Pratap Singh v. IXth Additional District
Judge, Fatehpur and Ors, 2000 (3) AWC
1995 in which vide paragraph nos. 6 & 7 of
the judgment it has been held thus:

"6. A Small Causes Court is expected to try
suits of a comparatively simple character
and, therefore, suits involving question of
title should not be entertained by that Court.
Section 23 is intended to enable the Courts
of Small Causes to save their time by
returning the plaints in suits which involve
enquiry into the question of title. This
section is designed to meet the cases in
which Judge, Small Causes Court is satisfied
that the question of title raised is so intricate
and difficult that it should not be decided
summarily but in ordinary Court in which
evidence is recorded in full and the decision
is open to appeal. The underlying principle
under Section 23 seems to be that where it is
considered advisable by a Small Causes
Court that a final decision on a question of
title, which decision would. if given by an
original Court. ordinarily be subject to
appeal and even to second appeal and which
decision would ordinarily be res judicata
between the parties, should be given in the
particular case before a Small Causes Court,
by an original Court, the Small Causes Court
though competent to decide incidentally the
question of title in that particular case might
exercise with discretion. the power of
returning the plaint to be presented to the
original
Court
which
would
have
jurisdiction to so decide on that title finally.
Obviously, the section is designed to meet
the cases in which the Judge. Small Causes
Court is satisfied that the question of title
raised is so intricate and difficult that it
should not be decided summarily but in an
ordinary Court in which evidence is
recorded in full and decision is open to
appeal.
7. Section 23 is framed in optional terms
giving discretion to the Court to act in the
matter or not. and therefore, in suits
involving question of title, the Small Causes
Court has a discretion either to decide the
question of title or to act under this section
and return the plaint. It is not always bound
to return the same. Nevertheless, when any
complicated question of title arises. it would
be the wiser course for Small Causes Court
in the exercise of its discretion to act under
Section 23 and return the plaint."
 (Emphasis added)

29. In view of the above, a mere reference of
a case where a party has just instituted a suit
for injunction would by itself not become a
title dispute. The Small Cause Court shall
5 All. M/S Amit Engg. Mainpuri Vs. Superintending Engineer, Lko.
1233
have to apply its mind to the facts pleaded in
the case. Once Mr. Naresh Chandra
Agarwal, in a judicial proceeding while
applying for bail, himself admitted that he
was not in any manner the Manager of the
Temple, there was no occasion for a tenant
to raise a title dispute as a third party, to nonsuit the plaintiff in SCC case. The defendant/
petitioner admittedly is a tenant and he has
not raised any title dispute as to his status.
Therefore, it becomes a question how a
tenant can non-suit the plaintiff in an
eviction suit on the ground that someone has
instituted a suit for injunction. Even if
remotely some dispute is there, if accepted
for argument sake, the tenant does not get a
right to stay back in the tenanted premises
opposing the eviction suit.

30. In view of the above, I do not see any
error apparent on the face of record or any
such manifest error otherwise committed by
the trial court and the court sitting in
revision in dismissing the application under
Section 23 of Small Cause Court Act which
may warrant interference in my supervisory
and
superintending
jurisdiction
under
Article 227 of the Constitution.

31. Petition fails and is accordingly
dismissed.
----------
(2024) 5 ILRA 1233
ORIGINAL JURISDICTION
CIVIL SIDE
DATED: LUCKNOW 13.05.2024

BEFORE

THE HON'BLE SUBHASH VIDYARTHI, J.

Matter Under Article 227 No. 1834 of 2024

M/S Amit Engg. Mainpuri ...Petitioner
Versus
Superintending Engineer, Lko.
 ...Respondent
Counsel for the Petitioner:
Puneet Sahai Bisaria

Counsel for the Respondent:
Neera Yadav, Mayank Sinha

Civil Law - Arbitration and Conciliation Act,
1996 - Sections 2(e), 11(6), 11(6-B), 20,
34 & 42 - Petitioner entered into contract
with
respondent
for
construction
of
independent feeders on turnkey basis
within stipulated time - Disputes arose
between them, petitioner filed application
u/s 11 before High Court at Allahabad,
allowed and Arbitrator appointed - Award
was declared, direction to respondent to
pay
to
petitioner
a
sum
of
Rs.1,20,43,129.00 along with interest at
the rate of 8% p/a from 06.07.2020 till the
date of award, also rate of interest was
10% p/a from date of award - Respondent
challenged
award
before
Commercial
Court, Lucknow - Objection by petitioner
on territorial jurisdiction - Rejected -
Impugned order - Held, the Arbitrator
appointed by High Court at Allahabad is
residing at Aligarh, on first hearing, the
Arbitrator mentioned that till any suitable
arrangement is made, the venue of arbitral
proceeding will be at Aligarh - Neither
parties had agreed for seat/venue on the
arbitration, nor had Arbitrator passed
order to this effect - Filing of application
u/s 11 at Allahabad would not create a bar
u/s 42 against the exercise of jurisdiction
by Commercial Court - No illegality,
dismissed. (Para 3, 6, 8, 9, 10, 32)

Petition dismissed. (E-13)

List of Cases cited:

1. Inox Renewables Ltd. Vs Jayesh Electricals
Ltd., (2023) 3 SCC 733

2. BBR (India) (P) Ltd. Vs S.P. Singla
Constructions (P) Ltd., (2023) 1 SCC 693

3. Zapdor-Ubc-Abnjv Vs U.O.I., 2022 SCC OnLine
All 594

4. Emkay Global Financial Services Ltd. Vs
Girdhar Sondhi, (2018) 9 SCC 49