Advocates:
['KARTIKEYA SARAN', '', 'UJJAWAL SATSANGI', 'KULDEEP SINGH', '', 'VIPIN VINOD', 'SANTOSH KUMAR MISHRA']

AFR

Reserved on 12.05.2022

Delivered on 27.06.2022

Court No. - 10

Case :- FIRST APPEAL FROM ORDER No. - 3841 of 2018

Appellant :- Ashish And 5 Ors

Respondent :- Murti Shri Ramchandra Virajman And 20 Ors

Counsel for Appellant :- Kartikeya Saran,Ujjawal Satsangi

Counsel for Respondent :- Kuldeep Singh,Santosh Kumar

Mishra,Vipin Vinod

Hon'ble 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

2

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 :

"क्या प्रस्तुत वाद आदेश 7 नियम 11 जा. दी. के प्रानिवधाों से बाधिधत

है?”

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

3

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 fil