JUDGMENT :

Rohit Ranjan Agarwal, J.

1. Heard Sri Kartikeya Saran, learned counsel for the defendants-appellants and Sri Santosh Kumar Mishra, learned counsel for the plaintiffs-respondents No.2 to 7.

2. This appeal under Order 43 Rule 1(u) of Code of Civil Procedure, 1908 (hereafter referred to as “CPC”) arises out of judgment and decree dated 18.7.2018 passed by Additional District Judge, Court No.6, Mirzapur in Civil Appeal No.42 of 2016 setting aside the judgment and order dated 11.12.2017 passed by Additional Civil Judge (Senior Division) Mirzapur in Original Suit No.265 of 2015 and remanding back the matter to the Trial Court.

3. A brief sketch of facts is necessary for the better appreciation of the case which are as under :

4. The dispute relates to the property being Arazi No.548, 549/1, 549/2, 546, 547, 554, 569, 570, 571, 575, 577 and 572 measuring 5 Bigha and 18 Biswa situated in Village-Tarkapur, Tappa – 84, Pargana Kantit, Tehsil and District Mirzapur. On 13.03.1947, one Kedar Nath Mishra was given a lease of aforesaid land in perpetuity. He executed an agreement for largesse (bakshishnama) (Endowment Deed) dated 17.08.1949, dedicating the entire property to “Lord Ram Chandraji” and His idol was to be installed over the said property and thereafter necessary religious worship was to be performed under the control and guidance of one Kailash Nath Agrawal, after him, his successors.

5. Kailash Nath Agrawal did not get the idol of Lord Ram Chandraji installed over the property dedicated, thus a suit under Order 1 Rule 8 C.P.C. was filed by the plaintiffs-respondents being Original Suit No.265 of 2014 against the present appellants claiming relief of permanent injunction restraining the appellants from managerial capacity of the property in question, as well as restraining the appellants from selling off the property in dispute and also for transferring the entire managerial work and rights for maintaining and taking care of the deity to the district administration. The said suit was contested by the defendants-appellants who filed their written statement denying the plaint allegation.

6. An application under Order 7 Rule 11 CPC was filed by the defendants-appellants on 18.3.2015, on the ground that the suit filed by the plaintiffs was not maintainable in view of Order 7 Rule 11 (a) and (d) CPC, as it did not disclose any cause of action and from the statement in the plaint, the suit appears to be barred by law. The Trial Court vide order dated 11.12.2017 allowed the application 75Ga filed by defendants-appellants and rejected the objection 78Ga filed by plaintiffs-respondents and dismissed the suit. Against the said judgment and order, Civil Appeal No.42 of 2017 was preferred in which the lower Appellate Court framed following point of determination :

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7. The lower Appellate Court vide judgment and order dated 18.7.2018 allowed the appeal and set aside the order dated 11.12.2017 and remanded the matter back and directed the Trial Court to frame issues on the basis of pleading of the parties and decide the suit on merits. Hence this appeal.

8. Sri Kartikeya Saran, learned counsel appearing for the appellants submitted that the suit filed under Order 1 Rule 8 C.P.C. on behalf of plaintiffs was not maintainable as no deity has been installed in the property in question and thus no person can file a suit as a next friend. He next contended that the person, who was a party to the agreement dated 17.8.1949 or his legal heirs could file civil suit for the breach of the clauses mentioned in the said agreement and no third party can maintain a suit against the appellants. He next contended that suit at the instance of the plaintiffs-respondents was not maintainable under Order 1 Rule 8 CPC and at best could have been filed under Section 92 read with Order 32 Rule 1 CPC as the matter relates to public charity and the issue raised by the plaintiffs is for installation