Filing a civil suit for enforcement of certain rights relating to a private Trust under Section 9 of the Code of Civil Procedure is maintainable.

1. This Civil Miscellaneous Appeal has been filed to get set aside the order dated 23.07.2012 passed in I.A.No.124 of 2011 in I.A.No.58 of 2011 in O.S.No.16 of 2011 by the learned Principal District Judge, Thanjavur.

2. A re'sume' of facts absolutely necessary for the disposal of this Civil Miscellaneous Appeal, would run thus:

The appellants namely, the plaintiffs filed the suit in O.S.No.16 of 2011, seeking the following reliefs:

"(i) Setting a scheme for SRI KRISHNA VILAS BAJANAI KOODAM situated in THIRUMALAINAMBI STREET KUMBAKONAM,

(ii) Removing all the trustees from the trusteeship for illegally selling the properties owned by the trust SRI KRISHNAVILAS BAJANAI KOODAM,

(iii) Directing the trustees who have ceased to be the trustee to deliver possession of all the properties owned by the trust SRIKRISHNA VILAS BAJANAI KOODAM to the new trustee appointed by the court,

(iv) Directing accounts and inquiries,

(v) Setting aside the sale deed dated 29.07.2002 executed by T.N.RAJAM in favour of the 12th defendant as abinitio void,

(vi) Setting aside the sale deed dated 29.07.2002 executed by T.R.LAKSHMANAN in favour of the 12th defendant as abinitio void,

(vii) Setting aside the sale deed dated 30.07.2002 executed by T.N.JAYACHANDRAN in favour of the 12th defendant as abinitio void,

(viii) Setting aside the sale deed dated 31.07.2002 executed by T.N.B.JANAKIAMMAL, T.N.B.NARAYANAN and T.N.B.SRIDHAR in favour of the 12th defendant as abinitio void,

(ix) Setting aside the sale deed dated 19.08.2002 executed by T.R.RAMAIYAN, T.R.EGYAMOORTHY AND T.R.GOVINDARAJAN in favour of the 12th defendant as abinitio void,

(x) Directing the 12th defendant to handover the vacant possession of the property comprised in survey number 1339 new survey number 1339/2 situated at the western bank of MAHAMAGAM KULAM in KUMBAKONAM after removing the superstructure morefully described in the schedule hereunder,

(xi) Pass an order of permanent injunction restraining the 12th defendant from putting up further construction in the property comprised in survey number 1339 new survey number 1339/2 situated at the western bank of MAHAMAGAM KULAM in KUMBAKONAM,

(xii) Granting such further or other relief as the nature as as the case may require. (extracted as such)

The same plaintiffs filed I.A.No.58 of 2011 seeking the following relief:

"Therefore, it is prayed that this Honourable court may be pleased to grant leave to file the suit under section 92 of the code of civil procedure and thus render justice." (extracted as such)

Whereupon, leave was granted in favour of the plaintiffs to file such a suit under Section 92 of the Code of Civil Procedure in O.S.No.16 of 2011. Subsequently, the defendants therein filed I.A.No.124 of 2011 to get the leave cancelled. Whereupon, after hearing both sides, the lower Court passed the order to the effect that the Trust being a private Trust and not a public Trust, could file a suit invoking Section 9 of the Code of Civil Procedure and not by invoking Section 92 of the Code of Civil Procedure and with that observation, allowed that I.A.No.124 of 2011 and dismissed the suit itself.

3. Being aggrieved by and dissatisfied with the same, originally, the Civil Revision Petition was filed and subsequently, it was converted into this Civil Miscellaneous Appeal with the permission of this Court.

4. Heard both sides.

5. The learned Counsel for the appellants/plaintiffs would submit that even though the lower Court felt that Section 92 of the Code of Civil Procedure cannot be invoked and Section 9 of the Code of Civil Procedure only could be invoked and a separate suit could be filed, yet the lower Court was not justified in simply dismissing the suit in O.S.No.16 of 2011 and the lower Court should have treated the suit as the one filed under Section 9 of the Code of Civil Procedure de hors, the order passed in I.A.No.58 of 2011, cancelling the leave granted under Section 92 of the Code of Civil Procedure.

6. Whereas