The main legal point established in the judgment is the exemption of a society registered under the M.P. Societies Registration Act from the provisions of the M.P. Public Trust Act under Sec. 36 (1-b), and the res judicata effect of previous suit findings.

JUDGMENT

SUNITA YADAV, J. - Present first appeal has been filed under Sec. 96 CPC against the judgment and decree dtd. 15/5/2002 passed by Third Additional District Judge, Gwalior in Civil Suit No. 85A/1994, whereby civil suit filed by the respondent/plaintiff for declaration and permanent injunction has been decreed.

2. The facts in brief to decide the present appeal are that a civil suit was filed by deity through the Society registered under M.P. Societies Registration Act, 1973 (hereinafter referred to as the society). It is the case of the plaintiff that one temple in the name of Murti Shri Dwarikadheesh Ji Maharaj is situated on Gandhi Road, Morar, Gwalior. The deity is situated in a very big compound and the temple consists of residential portion and shops. As per plaintiff, the temple is being managed by one committee which is registered as Murti Shri Dwarikadheesh Ji Maharaj and which was registered on 24/4/1980. It is pleaded by the plaintiff that the temple was constructed prior to 100 years of filing of suit by Seth Kanhaiyalal Khandelwal. The main temple also consist of statue of various other gods and goddesses. During the life time of Seth Kanhaiyalal, the affairs of the temple were conducted by a committee and thereafter on 29/6/1926, for the first time the office bearer of the committee were elected and thereafter, on 28/10/1930, election took place wherein Shri Laxminarayan was appointed as president and Babu Parmeshwar Dayal Shrivastava was elected as Secretary. It is further submitted that thereafter the affairs of the temple were being looked after by the committee as per the Will of late Kanhaiyalal Khandelwal.

3. It is further pleaded in the plaint that the committee used to looked after the property and in furtherance thereof various civil works were also done by the committee in the temple, details of which are mentioned in the plaint. The father in law of defendant no.2 namely Brajnarayan and mother in law namely Bhuri Bai encroached upon the temple, therefore, one civil suit was filed by the committee against Brajnarayan and Bhuri Bai which was registered as Civil Suit No. 646/1949. The said suit was filed by the committee and in the said civil suit it was found that Brajnarayan and Bhuri Bai have no relation with the temple and they have encroached upon the temple and its premises. It is further pleaded that Brajnarayan and Bhuri Bai were declared as encroacher vide judgment and decree dtd. 30/11/1953. In compliance of said judgment and decree, execution was filed in which Brajnarayan and Bhuri Bai admitted their status to be tenant, however, they requested that they may be kept as Pujari in the temple so that they may earn their livelihood. In execution proceedings, both Brajnarayan and Bhuri Bai submitted affidavit as Ex.P-3 and Ex.P-4 in which they admitted their status and accordingly the execution proceedings were disposed of.

4. The plaintiff further pleaded that looking to the management of the temple, the committee was registered under the Societies Registration Act on 26/4/1980. The defendants by suppressing material facts, executed one forged and fabricated Trust on 24/7/1981 (hereinafter referred to as the Trust) and got the same registered under Public Trust Act. It is further pleaded by the plaintiff that the creator of Trust was Gulab Bai who herself was not the owner and therefore, was incompetent to create a Trust under Sec. 5 and 6 of Indian Trust Act. It is further pleaded that since the temple has already been registered under Societies Act, 1973, therefore, the same could not have been again registered under the provisions of M.P. Public Trust Act. It is further pleaded that no notice was served under on the plaintiff society regarding registration of Trust. Therefore, it is clear that the Trust has been fraudulently created. Consequently, the suit was filed by the plaintiff seeking the decree to the effect that the plaintiff committee may be declared to manage the affairs of the