JUDGMENT Poonam Srivastava, J.
1. Heard Sri H. M. Srivastava, learned Counsel for the appellant and Sri Shahroze Khan, learned Counsel appearing for the caveator/respondent No. 1.
2. This is defendant's second appeal against the judgment and decree dated 21.3.2002 passed by the Civil Judge (Senior Division) Siddharth Nagar in original suit No. 234 of 1985 and also the judgment and decree dated 23.1.2006 passed by the Additional District Judge, Court No. 1, Siddharth Nagar in Civil Appeal No. 21 of 2002.
3. The dispute is in respect of the Temple situated at Tetari Bazar named as Hanuman Garhi Temple. It is stated that the Temple was renovated in the year 1960 and this Temple was being maintained by the Ajama Akhara of Nepal. A dharamshala was also constructed along with the Temple. The construction of the Temple as well as dharamshala was from the money donated by the people of Nepal, who were members of the Ajama Akhara. The defendant claimed that one Ram Tahal Das was appointed as Sarvarakar of the Temple and after his death, one Sukh Ram Das was appointed by the Ajama Akhara in his place. Subsequently, one Vishwanath Das was appointed. The defendant claims himself to be appointed as Saravarakar of the Temple and dharamshala on the basis of a Will deed, which is said to have been executed by the previous Saravarkar Jhinku Das on 28.12.1977. A copy of the same has been annexed as Annexure-1 to the affidavit filed in support of the stay application. The plaintiff/respondent instituted original suit No. 234 of 1985 for possession. It was pleaded that after Jhinku Das, who was appointed as pujari left the Temple, defendant Anumant Lal was temporarily asked to look after the affairs of the Temple. He illegally allowed his brother appellant/ defendant No. 2 to occupy the adjacent room without knowledge of the plaintiff. It was further pleaded that the appellant is a criminal and all the goods of the Temple are kept in that room. The plaintiff was duly appointed as Vyavasthapak of Hanuman Garhi Temple by the State of U. P. in accordance with provisions of Antiquities and Art Treasure Rules 1973 on 27.3.1982. Copies of the certificates have been brought on record, which have been annexed as Annexures-3A and 3B to the affidavit filed in support of the stay application. The trial court framed a number of issues. Issue No. 2 was on the question, whether the disputed Temple is a public trust and issue No. 1 was whether the plaintiff is validly appointed as Sarvarakar and Manager of the Temple and competent to dispossess the defendant Nos 1 and 2. Execution of certificates of appointment in favour of the plaintiff were not disputed by the defendant. The defendant has not even challenged validity of the two registration certificates and, therefore, the trial court placed reliance and came to a conclusion that the plaintiff is appointed on the basis of the said certificates, besides the electricity bills etc. were also produced in the name of the plaintiff/respondent. The suit was decreed for possession holding that the defendant/appellant is not a validly appointed Sarvarakar by the Ajama Akhara as claimed by him, therefore, lie is not entitled to remain in possession. The appeal filed by the defendant/appellant was dismissed and the judgment and decree of the trial court was confirmed.
4. Learned Counsel for the appellant has raised question of law regarding Section 92, C.P.C. It is argued that since the property in question was public trust, the suit was not maintainable in the representative capacity without leave of the court and whether the suit could be decreed on the basis of shortcomings of the defendant. During the course of argument, it was brought to my notice that initially first appeal filed by the plaintiff/respondent was allowed and the suit was remanded. The remand order has been brought on record by means of the supplementary-affidavit. It appears that the objection regarding maintainability of the suit without leave of the court was neither raised in the suit nor in the appeal. However, it is submitted that since it is a legal question, which can be considered in this appeal as well.
5. Section 92, C.P.C. relates to institution of a suit in representative capacity, can only be done after taking leave of the court. Since no leave was taken, suit could not have continued. Basis of the argument is that since the Temple is being managed from the offerings made by the general public, it comes within ambit of public charity, therefore, provisions of Section 92 will be made applicable. In the instant case, the appellant claimed himself to be appointed on the basis of a Will (ikcha patra) by Jhinku Das, who was appointed by Ajama Akhara. On own showing and claim set up by the defendant, it transpires that the question regarding the property being public trust was neither set up in the pleadings nor argued at any stage. Assuming the assertion of the appellant to be correct, even then I am not in agreement, for the reason that Ajama Akhara of Nepal is a private trust and not public trust and also that the plaintiff brought the suit for possession after having been appointed under the provisions of Antiquities and Art Treasure Rules, 1973. Certificates having been issued for his appointment, therefore, it cannot be said that provisions of Section 92, C.P.C are applicable. The condition for applicability and invoking Section 92 of the Code, three conditions must be satisfied namely (i) when the trust is created for public purposes of a charitable or religious nature; (ii) there was a breach of trust or a direction of the court is necessary in administration of such a trust; (iii) the relief claimed is one or other reliefs enumerated therein. It was ruled in the case of Bishwanath and Anr. v. Sri Thakur Radha Ballabhji and Ors. AIR 1967 SC 1044, if any of the aforesaid three conditions is not satisfied, the suit falls outside the scope of Section 92, C.P.C. Perusal of the two judgments do not show that there is any such pleadings in respect of the property in dispute. Therefore, argument that no leave of the court was taken, is absolutely without any basis. No doubt, the relief claimed is one for possession as provided by the State Amendment for the State of U.P., (U.P. Act No. 24 of 1954, Section 2 and schedule, item 5, entry 5 (w.e.f. 30.11.1954) Clause (bb) where relief of delivery of possession is added but this alone is not sufficient. The existence of all the three conditions is essential to bring the case within the purview of Section 92, C.P.C. existence of one of the conditions is not sufficient.
6. I am not in agreement that the suit could not be instituted otherwise without leave of the court as it was in a representative capacity. Admittedly, on perusal of the plaint shows that it was not in a representative capacity. The plaintiff claimed himself to be duly appointed Saravarakar and, therefore, it was to oust an unauthorized occupant from the property in question and as such argument advanced by Sri H. M. Srivastava learned Counsel appearing for the appellant is without substance and cannot be accepted. The suit was instituted to oust an unauthorized occupant as the plaintiff claimed to be a duly appointed Manager in accordance with law. In the circumstances, the assertion of the appellant that the suit could not be entertained without the leave of the court is without any basis. The provision of Section 92, C.P.C. does not come into play. Besides, I have also examined two judgments on merits. No substantial question of law arises worth consideration in the instant appeal. The Apex Court has ruled in a number of decisions that a second appeal can only be entertained, if there exists a substantial question of law. A number of decisions have been cited by the counsel appearing for the caveator/ respondent in support of the contention that there is no substantial question of law in view of the various decisions of the Apex Court Santosh Hazari v. Pursottam Tiwari (Dead) by L.Rs. 2001 (1) AWC 824 (SC) : AIR 2001 SC 965; Hamida and Ors. v. Mohd. Khalid , Kondiba Dagahu Kadam v. Savitribai Sopan Gujar and Ors. . This principle of law has been reasserted by the Apex Court Govindaraju v. Mariamman .
7. For the reasons discussed above, I do not find any substantial question of law that arises worth consideration in the instant appeal. The second appeal lacks merit and is, accordingly, dismissed.