# Sri Gorakh Giri v. Sri Ram Chandra Kuer and others

- **Citation:** (2003) 2 ILRA 287
- **Court:** High Court of Judicature at Allahabad
- **Decided:** 2003-05-14
- **Case number:** Second Appeal No. 315 of 1982
- **Bench:** B.K. Rathi
- **Source:** https://unisonlegal.in/judgment/allahabad-high-court/sri-gorakh-giri-v-sri-ram-chandra-kuer-and-others-40086
- **Pages:** 4

## Headnote

Sri R.N. Singh
Sri S.N. Singh
Sri Faujdar Rai
Sri V.N. Pandey
Sri R..K. Shahi
Sri G.K. Rai

(A) Code of Civil Procedure- Section 92-
Mahant of Public Trust died during
pendency of suit- Will deed also not
disclosing about the management of the
Math- Trustee appointed by the villager-
held illegal.

Held- Para 14

The appeal was decided by Sri P.K.
Chaterjee as Vth Additional District
Judge, Ballia. The suit under section 92
C.P.C. can be filed with prior permission
of the court or the Advocate General.
There was no such permission. The suit
can be filed in the Principal Civil Court of
original jurisdiction. The suit was filed in
the court of Munsif for declaration and
injunction. In such a suit an scheme for
the management can not be prepared by
the Court. There is no inherent powers
under section 151 C.P.C. to prepare the
scheme of management of a math. The
same can be prepared in the suit under
section 92 C.P.C. by the Principle Civil
Court or by the District Judge under the
provisions of the Indian Trusts Act.
Therefore, the right of management
given to the plaintiff by the first
appellate court is against law and totally
without jurisdiction and the same can
not be maintained.

(B) Code of Civil Procedure- Order 22
Rule 2- Abatement-Sole plaintiff died-the
heirs of Mahant already on record- suit
can not be abated.

Held- Para 10

According to the case of the plaintiffs,
they were appointed mahant by the will
dated 14.06.1967 by Basdeo Giri and
also by assembly of persons of the
village. However, it is not alleged that
there was any such direction that their
heirs will become the mahant of the
math or who shall replace them after the
death. It is also not alleged that in place
of the deceased plaintiffs somebody else
have been appointed as mahant of the
math. The claim of the plaintiffs as
mahant is for their life time and the
claim does not survive after the death of
any of the plaintiffs. Even if the claim
survives
the
claimants
will
be the
surviving plaintiff and not outsider or
legal heirs. The surviving plaintiff is
already
respondent
in
the
suit.
Therefore,
there is
no
question of
abatement. It may also be pointed that
the respondents themselves have not
clarified as to who should be substituted
as legal heirs of the deceased plaintiffs.
Therefore, for the purpose of the suit
regarding the property in dispute the
deceased plaintiffs have left no heirs.
Therefore, the question of substitution
does not arise and this appeal has not
abated.
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 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
288

## Text

http://www.allahabadhighcourt.nic.in
2 All] Sri Gorakh Giri V. Sri Ram Chandra Kuer and others
287
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 14.5.2003

BEFORE
THE HON'BLE B.K. RATHI, J.

Second Appeal No. 315 of 1982

Sri Gorakh Giri

...Appellant
Versus
Sri Ram Chandra Kuer (Since Deceased)
and others

 ...Opposite Parties

Counsel for the Appellant:
Sri Tribhuwan Upadhyaya
Sri R.A. Sharma
Sri G.K. Parekh
Sri Dhurva Narayana
Sri C.P. Ghildyal
Sri Kuldeep Kumar Singh

Counsel for the Respondents:
Sri R.N. Singh
Sri S.N. Singh
Sri Faujdar Rai
Sri V.N. Pandey
Sri R..K. Shahi
Sri G.K. Rai

(A) Code of Civil Procedure- Section 92-
Mahant of Public Trust died during
pendency of suit- Will deed also not
disclosing about the management of the
Math- Trustee appointed by the villager-
held illegal.

Held- Para 14

The appeal was decided by Sri P.K.
Chaterjee as Vth Additional District
Judge, Ballia. The suit under section 92
C.P.C. can be filed with prior permission
of the court or the Advocate General.
There was no such permission. The suit
can be filed in the Principal Civil Court of
original jurisdiction. The suit was filed in
the court of Munsif for declaration and
injunction. In such a suit an scheme for
the management can not be prepared by
the Court. There is no inherent powers
under section 151 C.P.C. to prepare the
scheme of management of a math. The
same can be prepared in the suit under
section 92 C.P.C. by the Principle Civil
Court or by the District Judge under the
provisions of the Indian Trusts Act.
Therefore, the right of management
given to the plaintiff by the first
appellate court is against law and totally
without jurisdiction and the same can
not be maintained.

(B) Code of Civil Procedure- Order 22
Rule 2- Abatement-Sole plaintiff died-the
heirs of Mahant already on record- suit
can not be abated.

Held- Para 10

According to the case of the plaintiffs,
they were appointed mahant by the will
dated 14.06.1967 by Basdeo Giri and
also by assembly of persons of the
village. However, it is not alleged that
there was any such direction that their
heirs will become the mahant of the
math or who shall replace them after the
death. It is also not alleged that in place
of the deceased plaintiffs somebody else
have been appointed as mahant of the
math. The claim of the plaintiffs as
mahant is for their life time and the
claim does not survive after the death of
any of the plaintiffs. Even if the claim
survives
the
claimants
will
be the
surviving plaintiff and not outsider or
legal heirs. The surviving plaintiff is
already
respondent
in
the
suit.
Therefore,
there is
no
question of
abatement. It may also be pointed that
the respondents themselves have not
clarified as to who should be substituted
as legal heirs of the deceased plaintiffs.
Therefore, for the purpose of the suit
regarding the property in dispute the
deceased plaintiffs have left no heirs.
Therefore, the question of substitution
does not arise and this appeal has not
abated.
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
288
(Delivered by Hon'ble B.K. Rathi, J.)

1. This second appeal is against the
judgment and decree dated 2.12.1981
passed in Civil Appeal No. 20 of 1979 by
Vth Additional District Judge, Ballia .
The facts giving rise to this appeal are as
follows:

2. The suit no. 36 of 1973 was filed
by the respondents in the court of Civil
Judge,
Ballia
for
declaration
and
injunction. The case of the plaintiff-
respondents is that there is math in the
village Mauza Bairia, Paragana Deaba,
district Ballia which belong to Dasnami
Shankara
Charya
Sampardaya..
The
owner of the math is Lord Srinath Jee,
who is installed in the building of the
math. According to the directions of
Dasnami Shankaraa Charya Sampardaya
every mahant should belong to duiz
vansh. The math is the charitable and
religious trust and its entire property is
endowed and dedicated. The mahant of
the math manages the property for and on
behalf of Srinath Jee as sarbarakar.

3. It is further alleged that one
Basdeo Giri was the mahant of the math.
He had no chela. Therefore, the defendant
claimed himself to be chela of math, but
he could not be chela in accordance with
the directions of the religious books as he
is married person and got sons also. There
was no mahant of the math and therefore,
people of the village formed a committee
of the plaintiffs to manage the affairs of
the math.

4. It was further alleged that the
defendant fraudulently obtained will from
mahant Basdeo Giri on 13.4.1967 and
12.5.1967 which were cancelled by
Basdeo Giri on 14.6.1967 and by that
document he authorized the managing
committee of the plaintiffs to manage the
affairs of the math. The defendant
fraudulently again obtained another will
of Basdeo Giri on 2.9.1967 but it was
again cancelled by Basdeo Giri. That
therefore, the plaintiff- respondents have
right to manage the affairs of the math.
Basdeo Giri died in June, 1968 and since
then the plaintiffs are managing the entire
property of the math and the agricultural
land of the same.

5. The proceedings under section
145 Cr.P.C. also started. Therefore, the
plaintiffs filed a suit for declaration that
they are sarvarakar of the math and for
injunction to restrain the appellant from
interfering in their working as mahant of
the math.

6. The appellant contested the suit
and alleged that the plaintiffs were never
appointed as mahant of the math and
never managed the math. The rights of the
parties have already been decided under
the consolidation proceedings and the
same operate as resjudicata.

7. The trail court framed necessary
issues and recorded a finding that the
plaintiffs are not the mahant of the math
and have no right to manage the same.
The trial court accordingly dismissed the
suit. The plaintiff- respondents preferred
First Appeal No. 20 of 1979 which have
been allowed and the suit have been
decreed by the first appellate court and
therefore, the present second appeal has
been preferred.

8. I have heard Sri Tribhuwan
Upadhyaya, learned counsel for the
appellant and Sri Faujdar Rai, learned
counsel for the respondents.
http://www.allahabadhighcourt.nic.in
2 All] Sri Gorakh Giri V. Sri Ram Chandra Kuer and others
289
9. A preliminary objection has been
raised by Sri Faujdar Rai, learned counsel
for the respondents that the suit was filed
by as many as eight plaintiffs and all of
them were respondents in the appeal. That
during the pendency of this appeal all the
plaintiffs, who were respondents in the
appeal have died except one. That their
heirs have not been substituted. That
therefore, the appeal has abated. It is
necessary to disposed of this preliminary
objections first.

10. According to the case of the
plaintiffs, they were appointed mahant by
the will dated 14.06.1967 by Basdeo Giri
and also by assembly of persons of the
village. However, it is not alleged that
there was any such direction that their
heirs will become the mahant of the math
or who shall replace them after the death.
It is also not alleged that in place of the
deceased plaintiffs somebody else have
been appointed as mahant of the math.
The claim of the plaintiffs as mahant is
for their life time and the claim does not
survive after the death of any of the
plaintiffs. Even if the claim survives the
claimants will be the surviving plaintiff
and not outsider or legal heirs. The
surviving plaintiff is already respondent
in the suit. Therefore, there is no question
of abatement. It may also be pointed that
the respondents themselves have not
clarified as to who should be substituted
as legal heirs of the deceased plaintiffs.
Therefore, for the purpose of the suit
regarding the property in dispute the
deceased plaintiffs have left no heirs.
Therefore, the question of substitution
does not arise and this appeal has not
abated.

11. Now coming to the merits, the
memo of appeal show that as many as five
substantial questions were framed by the
learned counsel for the appellant and the
appeal was admitted on all the questions
mentioned in the memo of appeal.

12. The appellant claim the right to
manage the trust firstly is based on the
registered
deed
dated
14.06.1967.
However, this deed was not relied on by
any of the courts below. There is
concurrent findings that this deed does not
confer any right on the plaintiffs to
manage the math. Second, claim is based
on the ground that people of the village
assembled and appointed the plaintiffs as
mahant. There is oral evidence regarding
it. However, there is no document. It has
not been alleged that as to how the people
of the village were authorized to appoint
the mahant. If there was no body to look
after the property, the management could
be ordered under section 92 C.P.C. or
under the provisions of the Trusts Act.
The appointment by the assembly of
people is wholly void. Therefore, the
plaintiffs are not entitled to manage the
math under any circumstances and trial
court rightly dismissed the suit.

13. However, the suit has been
decreed by the first appellate court in the
first appeal. After perusal of the judgment
of the first appellate court, I am of the
view that his approach was absolutely
eratic and he has committed a gross error
of law in allowing the appeal. The learned
first appellate court has framed an scheme
for the management of math under section
92 C.P.C. Perhaps the first appellate court
has failed to consider whether he had such
power. I am afraid that he had no such
power.

14. The appeal was decided by Sri
P.K. Chaterjee as Vth Additional District
http://www.allahabadhighcourt.nic.in
 INDIAN LAW REPORTS ALLAHABAD SERIES [2003
290
Judge, Ballia. The suit under section 92
C.P.C. can be filed with prior permission
of the court or the Advocate General.
There was no such permission. The suit
can be filed in the Principal Civil Court of
original jurisdiction. The suit was filed in
the court of Munsif for declaration and
injunction. In such a suit an scheme for
the management can not be prepared by
the Court. There is no inherent powers
under section 151 C.P.C. to prepare the
scheme of management of a math. The
same can be prepared in the suit under
section 92 C.P.C. by the Principle Civil
Court or by the District Judge under the
provisions of the Indian Trusts Act.
Therefore, the right of management given
to the plaintiff by the first appellate court
is against law and totally without
jurisdiction and the same can not be
maintained.

15. Before parting this appeal, it
may also be mentioned that from the oral
evidence recorded in this case it appears
that the plaintiffs never managed the
math.
The
plaintiff
examined
Ramchander, PW-1, who in his statement
has said that no meeting of the alleged
management committee ever took place.
He further stated that the trust was never
managed by the plaintiffs but was being
managed by Gorakh Giri, defendant. That
no account of the properties were ever
maintained. Therefore, from the statement
of the Ram Chander, PW-1 itself it
appears
that
the
alleged
allegation
regarding the appointment is false.

16. Accordingly, this appeal is
allowed with costs throughout. The
judgment and decree of the first appellate
court is set a side and that of the trial
court is restored.
---------
APPELLATE JURISDICTION
CIVIL SIDE
DATED: ALLAHABAD 2ND MAY, 2003

BEFORE
THE HON'BLE TARUN CHATTERJEE, C.J.
THE HON'BLE R.K. AGRAWAL, J.

Special Appeal No. 36 of 2000

State of U.P. and others
...Appellants
Versus
Vinod Kumar Chand and others

 ...Respondents

Counsel for the Appellants:
Sri Ran Vijay Singh

Counsel for the Respondents:
Sri Ashok Khare
Sri A.K. Mishra

Constitution of India Article 226- selection
of the Candidate for B.T.C. training- vacancy
advertised on 8.3.98 providing 3 marks
extra
under
sport
Quota.
CandidateSubsequent G.O. dated 24.02.99 providing
5 marks under sport Quota, apart from
qualifying marks-held- not illegal-selection
can not be questioned.

Held- Para 7

Thus, the contention that the Government
order dated 24.2.99 would not apply to the
candidates who had applied pursuant to the
advertisement
dated
8.3.1998
is
misconceived and cannot be accepted.

(Delivered by Hon'ble R.K. Agarwal, J.)

The present Special Appeal has been
filed against the judgment and order dated
18.11.1999 passed by the learned single
Judge, whereby the writ petition filed by the
respondents- writ petitioners, has been
allowed and the order dated 11.5.1999
passed by the Principal, District Institute of