IMPORTANT POINT
Plaintiff cannot claim to be appointed as Mutawalli of public trust.

Mungeshwar Sahoo, J.—The defendants-respondents-appellants have filed this Second Appeal against the judgment and decree dated 22.07.1989 whereby the Lower Appellate Court allowed the appeal and set aside the judgment and decree of the trial court dated 29.03.1988 passed by Munsif, Bhabhua in Title Suit No.32 of 1983.

2. The plaintiffs-respondents filed the aforesaid suit praying for removal of the present Mutwali and appointing him as Mutwali and he be given power to nominate 4 members of the Managing Committee alleging that Mostt. Bageshwar Kuer constructed a temple and installed the deities of Ramjanki and others and for their maintenance executed a deed of endowment in respect of 7-8 acres cultivable lands along with house in favour of deities. During her lifetime, she was Mutwali and after her death, Ambika Tiwari and 7 other persons were appointed as members of the Managing Committee as desired by her in the endowment. A title suit was filed being title suit No.45 of 1954 wherein a compromise was arrived at and according to the compromise, Ramnaresh Tiwari and Ramdhani Tiwari were appointed as members of Managing Committee and Ambika Tiwari was made an ordinary member. It was decided in the said compromise that after the death of Bageshwar Kuer, Mutwali would be appointed by majority of the Committee. Ramdhani Tiwari, defendant-appellant mismanaged the properties and did not maintain the accounts and many members of the committee have died. The plaintiffs being descendants of Mostt. Bageshwar Kuer may be appointed as Mutwali after removing the present Mutwali i.e. defendant-appellant. Hence, the suit was filed for the aforesaid relief.

3. The defendants filed contesting written statement alleging that the Managing Committee was managing the affairs of the temple. Ambika Tiwari was maintaining the accounts on behalf of the Committee. Shyamnarayan Tiwari, the son of Ambika Tiwari was appointed as Mutwali by the Managing Committee. The defendant no.2 is nearest descendant of Mostt. Bageshwar Kuer and the plaintiff is nobody to file the suit.

4. After trial, the trial court recorded the finding that the plaintiff’s suit is not maintainable as no permission under Order 1 Rule 8 C.P.C. was obtained from the court. The plaintiff is not member of the trust as such, he cannot be appointed as Mutwali. On these findings, the trial court dismissed the plaintiff’s suit. On appeal, the Lower Appellate Court held that the suit is not hit by provision of Order 1 Rule 8 C.P.C. The Lower Appellate Court also held that the temple and the trust is not public trust, therefore, it is not barred by the Hindu Religious Trust Act. The Lower Appellate Court also recorded the finding that the defendants have no interest in the management of the trust and the defendants are not entitled to remain as Mutwali of the trust and that Ramdhani Tiwari is not related with Bageshwar Kuer. The plaintiff and his father were residing with Bageshwar Kuer. Therefore, in view of Article 419 and 421 of the Hindu Law by Mullah, the management of the property was inherited by the plaintiffs. Therefore, on these findings, the Lower Appellate Court decreed the plaintiff’s suit.

5. On 05.03.1991, at the time of admission of this Second Appeal, the following substantial question of law was formulated:

“Whether the decree of the Lower Appellate Court is vitiated on account of non-consideration of Exhibit K, the compromise entered into between the parties?”

6. At the time of hearing of the appeal, the learned senior counsel, Mr. Kamal Nayan Choubey filed additional substantial question of law. It may be mentioned here that during the pendency of this appeal, the sole plaintiff who was respondent no.1 died and in his place, his son, Rampukar Tiwari has been substituted. Likewise, the appellant no.1, Ramdhani Tiwari also died during the pendency of the appeal and in his place, the legal representatives have been substituted.

7. The learned senior counsel,