Ramchandra Ji Maharaj Virajman Mandir And 5 Others vs Sushil Maheshwari And 2 Others

HIGH COURT OF JUDICATURE AT ALLAHABAD
FIRST APPEAL FROM ORDER No. - 1018 of 2026
Ramchandra Ji Maharaj Virajman Mandir And 5
Others
.....Appellant(s)
Versus
Sushil Maheshwari And 2 Others
.....Respondent(s)
Counsel for Appellant(s) : Akash Mishra, Vishal Tandon
Counsel for Respondent(s) : Rashid Ali, Dhiraj Srivastava, Mahesh
Kumar, Shiv Bahadur Singh
AFR
Judgment reserved on 27.4.2026.
Judgment delivered on 14.5.2026.

Court No. - 39
HON'BLE ABDUL SHAHID, J.
1. Heard learned counsel for the plaintiffs/appellants and the learned
counsel for the defendant/respondent.
2. The present appeal has been preferred against the judgment and order
dated 13.1.2026, passed by the learned Additional District Judge/Fast
Track Court No.1, Etawah, in Misc. Case (Under Section 92 of C.P.C.)
No. 103 of 2021 (Ramchandra Ji Maharaj Virajman Mandir Ramtal and
others Vs. Sushil Maheshwari since deceased and another).
3.The case of the appellants/plaintiffs is that plaintiff no.1 is a temple
which is commonly known in the public at large as Shri Ram Chandra Ji
Maharaj Mandir Ramtal, situated at village Aheripur, Pargana Bharthana,
District Etawah (later referred as Temple). It is stated that it is very
ancient temple. There is no information or knowledge of its establishment
and by whom. The said temple is established for public uses for around
hundred year ago. Normally, the Sarvarakar of the temple were Baba
Bairagi. The succession has been transferred on the basis of Guru-chela
principle. The plaintiff nos. 2 to 4 are Sadhu Sanyasi of Bairagi person,
who does not having any domestic life. The plaintiff nos. 5 and 6 are also
residents of village Ahirepur. (later referred to as said village).
4. It is stated that said building of the temple is constructed over a large

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tract of land, in front of which a very large pond also exists, which pond
is the property of the temple, and both the temple and the pond are
situated and existing over an area of about 5-6 (five-six) bighas. The
temple and pond are situated in the said land and is recorded in the
Revenue entry No. 396 , area 71 decimals, 199M, area 1 acres and 12
decimals and 507, area 1 acres and 24 decimals, Gata No. 550 area 62
decimal. All the lands of the aforesaid four gatas is in the name of said
temple. The name of plaintiff no.1/temple is continued to be recorded in
the Khasra and Khatauni records of the Revenue Department, out of the
total land comprised in the said gata numbers, the temple building and
pond are constructed over 5-6 bighas of land and the remaining land is
lying vacant nearby it. Apart from the lands of these gata numbers, one
plot situated in the abadi area of village Aheripur, upon which two shops
are constructed, is also the property of the temple.

5. It is stated that Sarvakar of plaintiff no.1/said temple were consistently
an unmarried Sadhu Sanyasi Baba Bairagis and they have always
remained the Sarvarahkar of Temple/ Plaintiff No. 1, but for the last
several years, some persons having an evil intentions over the temple
property, hence, one person, namely, Ram Swaroop son of Bhagwandas,
who was a resident of Kanpur Nagar and carried on his business there and
had no permanent residence in village Aheripur and only used to visit
occasionally, developed malafide intentions regarding the temple and its
property, and about 40 years ago, after the death of the then Sarvarakar
Baba Bairagi, the said Ram Swaroop son of Bhagwandas, in conspiracy
with the employees of the Revenue Department, got his name recorded as
Sarvarakar of Plaintiff No. 1/temple in the concerned Khasra, Khatauni
etc. after the death of Baba Bairagi Sarvarakar, whereas Ram Swaroop
son of Bhagwandas was a married householder person, resided in Kanpur,
and according to the tradition of the temple, since Ram Swaroop son of
Bhagwandas was not a Baba Bairagi of the Bairagi sect, therefore he
could not have been the Sarvarakar of Plaintiff No. 1, and factually also,
since the said Ram Swaroop was a resident of Kanpur Nagar, it was not
possible for him to look after the temple, nor was any actual care ever
taken by him, nor in practice was Ram Swaroop ever the Sarvarakar of
Plaintiff No. 1/temple, nor was any duty of Sarvarahkari ever performed

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by Ram Swaroop, and only due to collusion with the employees of the
Revenue Department, the name of Ram Swaroop was recorded as
Sarvarahkar of Plaintiff No. 1/said temple in the revenue records,
although the employees of the Revenue Department neither had nor have
any legal authority to make such an entry of Sarvarakari, nor can the same
be recognized in law. In so far as the question of appointment as
Sarvarakar/Sevayat of the temple is concerned, such appointment can
only be made by the Civil Court, and therefore the entry of the name of
Ram Swaroop son of Bhagwandas as Sarvarakar in the Khasra and
Khatauni was having null and void from abinitio.
6. The defendant/respondent no.1, Sushil Maheshwari, who was the
original defendant was not resident of the said village. Even during the
pendency of litigation, Sushil Maheshwari had died and he has been
substituted by his son 1/1 and 1/2, Amit and Anup Kumar, respectively,
who is respondent nos. 1/1 and 1/2 in the present appeal. The original
defendant (Sushil Maheshwari) was residing for the last 30-40 years in
Chennai/Tamil Nadu alongwith his entire family. He was doing his
business there. He used to visit in said village either once or twice in a
year and and again returned to Chennai. After death of alleged
Sarvarakar, Ram Swaroop son of Bhagwandas, the defendant/respondent
had concocted a forged Will dated 21.12.1976 and got his name
recorded in Khasra Khatauni and the name of original defendant/ Susheel
Maheshwari had been substituted as Sarvarakar of plaintiff no.1/temple.
The application filed by him under Section 34 of the Revenue Act before
the Naib Tehsildar, Bharthana, District Etawah was accepted on
26.3.2002 and the name of Ram Swarup has been substituted with the
name of Sushil Chandra, the original defendant in the revenue record. An
appeal has been filed before the SDM, Bharthana which was allowed on
27.4.2004, whereas said order was set aside by the Additional
Commissioner, Kanpur Zone vide order dated 28.2.2007. Hence, the
initial order passed by the Naib Tehsildar, Bharthana dated 26.3.2002 is
consistently in existence.
7. Learned counsel for the appellants/plaintiffs has submitted that said
entries were contrary to the provision of Section 34 of the Land Revenue
Act. The original defendant was not having any right towards said temple

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and he has always having malafide intention to destroy and disturb the
moveable and immoveable properties of plaintiff no.1/temple. He has
manipulated the properties of plaintiff no.1/said temple. He had not
discharged his duty.
8. It is contended by the learned counsel for the plaintiff no.1/temple that
the original defendant came to the said village and he is having intention
to sold upon land of the said temple as well as shops, hence plaintiffs has
filed said suit under Section 92 CPC alongwith an application for leave to
file the said suit. The plaintiffs/appellants seeks the relief that
management committee shall be framed for the maintenance of plaintiff
no.1/temple.
9. The plaintiffs/appellants has preferred the present appeal on the
following amongst other grounds.

10. Learned counsel for the plaintiffs/appellants submitted that after
registration of the aforesaid suit, the learned trial court issued notices to
the respondents for filing a reply/objection to the aforesaid application of
the plaintiffs/appellants under section 92 of CPC. Thereafter the
respondents initially filed their objection to the aforesaid application and
the said objection was numbered as paper no. 26C and 27C. Thereafter it
appears from perusal of records that the respondents again filed another
objection to the aforesaid application under section 92 of C.P.C. filed by
the plaintiffs/appellants and the aforesaid objection was numbered as
paper no. 39C.

11. It is further reflected from perusal of records that the respondents
again filed another additional objection before the learned trial court i.e.
to the aforesaid application under section 92 of C.P.C. filed by the
plaintiffs/appellants and the aforesaid objection was numbered as paper
no. 42C.
12. Learned counsel for the plaintiffs/appellants has submitted that the
learned trial court without considering the specific case of the
plaintiffs/appellants and by recording wrong and illegal findings has
illegally and arbitrarily and in a clandestine manner passed the impugned

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order dated 13.01.2026 whereby the application so filed by them under
section 92 of C.P.C. for grant of leave to institute the said suit has been
rejected. Being aggrieved against the aforesaid order dated 13.01.2026,
the present appeal is being preferred by the plaintiffs/appellants.

13. Learned counsel for the plaintiffs/appellants has submitted that the
learned trial court while passing the impugned judgement, has miserably
failed to appreciate the fact that the present case is a case of implied trust
and has thus recorded a perverse finding that the plaintiffs/appellants have
failed to establish that there was either an express or implied trust for
management of the daily affairs of the temple. He further submitted that
learned trial court has recorded a perverse finding with respect to the fact
that from the facts and circumstances of the case, it was not established
that there existed any express or implied trust for management of the
temple and its properties and it has been further observed illegally that it
was not reflected from the records that the Sarvrahkar was not looking
after the affairs of the temple personally. However, in that regard it is
submitted that the opposite parties/defendants have themselves admitted
in their objection 26C and 27C that earlier Ramswaroop had kept a Baba
for taking care of the day to day affairs of the temple and thereafter
several persons have been assigned the said duty from time to time.

14. Learned counsel for the plaintiffs/appellants has submitted that the
learned trial court, while passing the impugned judgement, has miserably
failed to appreciate the fact that the defendants are residents of Chennai
and very seldom they come to visit the village to take care of the daily
affairs of the temple. It is further submitted that learned trial court, while
passing the impugned judgement, has miserably failed to appreciate the
fact that the said temple is a public temple and large number of public
comes every day for worshiping there and in absence of a proper
committee of management for managing the affairs of the temple, the
defendants have captured the valuable assets of the said temple for their
personal use. Learned trial court while passing the impugned judgement,
has miserably failed to appreciate the fact that the defendants have
themselves admitted in their objection/reply that Late Sushil Maheshwari
became Bhumidar with Transferable rights of the properties that were

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belonging to the temple and his name was allegedly recorded in the
revenue records in the said capacity. Thus, it is most respectfully
submitted here that from the above mentioned facts it is absolutely
established that the defendants are claiming themselves to be the owners
of the properties that are belonging to the temple which itself shows their
malafide intention of misappropriating such property.

15. Learned counsel for the plaintiffs/appellants has submitted that the
learned court below, while passing the impugned judgement, has
miserably failed to appreciate the fact that the defendants have no interest
in managing the daily affairs of the temple and they only want to sell of
the valuable properties that belong to the plaintiff no. 1 temple. It is
further submitted that the learned trial court, while passing the impugned
judgement, has miserably failed to apply the actual import of Section 92
C.P.C. which clearly lays down that the aim of the said section is to
protect the right of the public in such trusts and to stop any such misuse of
the property of the said trust whether express or implied. It is stated that
the defendants are illegally trying to alienate the movable and immovable
properties of the temple and and are also openly saying in the village that
they are the owners of the said temple and its properties and as such they
can dispose the said the said properties as per their will and as such the
lower court ought to have granted permission to the plaintiffs/appellants
to file a suit for preservation of such properties of the temple by creating a
committee of management.

16. Learned counsel for the plaintiffs/appellants has submitted that the
said temple is a public temple and thousands of devotees come to visit the
temple for worshiping the deity and if the properties of the temple are not
preserved by order of Hon'ble Courts then the public at large shall suffer
irreparable loss and injury. It is submitted that the plaintiffs have clearly
established from their pleadings before the trial court that there existed a
trust for public purpose of a religious nature for managing the affairs of
the temple but the learned trial court has illegally recorded a perverse
finding in that regard in the impugned judgement. The learned trial court,
while passing the impugned judgement, has miserably failed to consider
that a suit under Section 92 C.P.C. is a suit of special nature which pre-

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supposes the existence of a public trust of a religious or a charitable
character and such a suit can proceed on the allegation that there was a
breach of such trust or that the direction of the court is necessary for the
administration of the trust and the pleadings and evidence adduced by the
plaintiffs'/appellants.
17. Learned counsel for the appellants has relied on the law laid by this
Court in
Ambrish Kumar Singh Vs. Raja Abhushan Bran Bramhshah
and others; AIR 1989 Alld. 194 and relied on paragraph nos. 10 and 15
which read as under:-
"10 Section 92, Civil Procedure Code was amended by the Civil Procedure Code
(Amendment) Act, 1976. Before this amendment suit could be filed either by the
Advocate-General or two or more persons having interest in the trust and having
obtained consent in writing of the Advocate-General. After the amendment the words
"the consent in writing of that Advocate-General" were substituted by the words
"leave of the court."
While granting leave the court does not decide the rights of the parties. No right is
adjudicated at this stage. The, Court has merely to see whether there is a prima facie
case for granting leave to file a suit. This order does not in any way affect the final
decision which will be given on merit after the parties have led evidence in the suit.

15. Sri K.N. Tripathi referred to a decision of this Court reported in 1987 All LJ 369,
wherein it has been held:-
Mahanth Gurmukh Das v. Bhupal Singh
"When a person claims to have an interest in the trust and the claim is disputed by the
opposite party, the Court should apply its mind to the question on the basis of the
material on record and come to a conclusion, prima facie though it may be, on the
question whether the person seeking its leave can be treated to be a person having an
interest in the trust."

18. Learned counsel for the plaintiffs/appellants has further relied on the
judgment rendered in Operation Asha Vs. Shelly Batra and others;
and he relied on paragraph nos. 125 and 129 which are
(2026) 1 SCC 569
as follows:-
" 125 . Most common law jurisdictions are accepting towards the doctrine of
constructive trust as adopted in England i.e. the institutional model rather than a

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purely remedial one. Therefore, jurisprudentially there would remain no bar for India
to also adopt such an approach. We say so also because, the Trusts Act, 1882
(although dealing with private trusts) recognises the concept of an English
"constructive trust". Under Chapter IX titled "Obligation in the nature of trusts"
delineates several provisions wherein a resulting or a constructive trust, as accepted
in common law may be created. Additionally, the Statement of Objects and Reasons of
the Act reads as follows:

"With the few exceptions mentioned in this Statement, the rules contained in the Bill
are substantially those now administered by English Courts of Equity and (under the
name of "justice, equity and good conscience") by the Courts of British India.

The Bill distributes the subject under the following heads: I, Preliminary: II, the
creation of trusts: III, the duties and liabilities of trustees: IV, their rights and powers:
V, their disabilities: VI, the rights and liabilities of the beneficiary: VII, vacating the
office of trustee: VIII, the extinction of trusts; and IX, certain obligations of the nature
of trusts.

Where no trust is declared, but for the purposes of justice the law deems one to have
been created, the trust is by English lawyers termed "constructive". Benami
transactions, where property is transferred to A for a consideration paid by B, and B
makes the payment for his own benefit, have for centuries been familiar to the people
of India: gains made by one person at the cost of another are an everyday source of
litigation; and in no country, owing to the extreme sub-division of immovable property
and the partition of Inheritances, are constructive trusts more common. Chapter IX
avoids the fiction implied in the term "constructive trusts" by treating such
confidences as obligations in the nature of trusts properly so called. It specifies the
fourteen principal cases in which such an obligation arises, as follows:

1. Where it does not appear that the transferor of property intended to dispose of the
beneficial Interest (Section 80):
2. Where property is transferred to one person for a consideration paid by another
(Section 81):
3. Where the trust is incapable of execution or is executed without exhausting the
property (Section 82):
4. Where a transfer of property is made for an illegal purpose (Section 83):

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5. Where a bequest is made for an illegal purpose, or where the revocation of a
bequest is forcibly prevented (Section 84):
6. Where a transfer is made in pursuance of a rescindable contract (Section 85):
7. Where a transfer is made in fraud of the transferor's creditors (Section 86):
8. Where a debtor becomes his creditor's legal representative (Section 87):
9. Where a pecuniary advantage is gained by a person in a fiduciary character
(Section 88):
10. Where an advantage is gained by the exercise of undue influence (Section 89):
11. Where an advantage is gained by a tenant for life or other qualified owner in
derogation of the rights of other persons interested in the property (Section 90):
12. Where property is acquired with notice of an existing contract affecting it (Section
91):
13. Where a person contracts to buy property to be held on trust (Section 92):
14. Where one of several compounding creditors, by a secret arrangement with the
debtor, gains an advantage over his co-creditors (Section 93):

The Bill also contains a general clause (Section 94) providing for cases not so
specified. It is believed that this clause will cover that form of constructive trust which
the Punjab Courts have held to arise when a co-sharer in a village community absents
himself without expressly abandoning his rights".
129 . However, it must be noted that an institutional constructive trust would arise the
very moment any fiduciary removes or diverts the property from its intended
beneficiaries for his exclusive benefit or for the benefit of those who are not the
intended beneficiaries. This need not necessarily be due to an intention to defraud but
may also arise due to a mistake. In other words, the moment the fiduciary receives
money which he cannot conscientiously retain for himself, a constructive trust would
be raised in favour of the beneficiaries on whose account the money was originally
received. To put it simply, the factum that the fiduciary "withheld" the property from
its rightful beneficiaries must be established. This would constitute a breach of his/her
fiduciary duty and this benefit which has accrued to him would be held in constructive
trust. The breach of his fiduciary duty i.e. his duty towards the society and its intended
beneficiaries, must exist."
19. Learned counsel for the appellants/plaintiffs has placed reliance on
Gyan Prakash Chaurasia and others Vs. Bans Narain Rai and
and he relied on paragraph no.3
another; AIR 1991 Allahabad 266

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which reads as under:-
"3. Having heard the learned counsel for the applicant I am of the view that the
revision is devoid of merits. The suit or application under Section 92 of the Code has
got a unique characteristic. It pre-supposes the existence of a public trust of a
religious or charitable character and the suit can proceed only on the allegation that
there is a breach of the trust and a consequential direction from the court has become
imminent. The plaintiff has to pray one or more reliefs specified under the section. The
suit is filed not in the individual capacity as plaintiff or plaintiffs, but as
representatives of the public in general for vindication of public rights. In deciding
whether plaintiffs have correctly filed the suit as representatives of the public or as
private individuals, apart from looking into the reliefs claimed, the court must
consider the capacity in which the plaintiffs are suing and the purpose for which the
sujr is brought".
20. On the other hand, learned counsel for the respondent/defendant has
submitted that the application filed by the plaintiffs seeking permission to
institute the suit under Section 92 of the Code of Civil Procedure is
wholly false, incorrect and on concocted facts, and is not maintainable in
law. There is no need for framing of scheme of administration or
management committee about plaintiff no.1/said temple. The details of
the properties which has been mentioned by the plaintiffs at the end of the
plaint are totally false.
21. It is submitted that the land mentioned at Gata Plot No. 396
measuring 0.71 acre mentioned at Serial No. 2 and Plot No. 557
measuring 0.62 acre and Gata No. 394 area 0.275 hectare is only in the
name of plaintiff no.1/temple which is entered into the name of
Sarvarakar of the temple as Sushil Chandra son of Vishambhar Dayal,
whereas the land mentioned at serial no. 3, Gata No. 199 area 1.12 acre
and Gata No. 507 measuring 1.24 acre are recorded in the name of Shri
Ram Chandra Ji Maharaj Vanshi Wale Mandir, Aheripur through
Sarvarakar Ashok Kumar son of Ramswaroop, and Plot No. 550 M. is
recorded in the name of Shri Ram Sanskrit Pathshala Farm, Aheripur. The
said properties have no concern or connection with the temple in question,
nor have they ever had any such connection, and the said plot numbers are
not under dispute.

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22. He has further submitted that the respondent/defendant has objected
that plaintiff no.1/said temple was having its previous Sarvarakar of Shri
Maharajadhiraj Shri Ramchandra Ji Maharaj Virajman Temple, Aheripur,
Tehsil Bharthana, District Etawah (U.P.), namely Ramswaroop
Maheshwari son of Bhagwan Das Maheshwari, resident of 111/330
Ashok Nagar, Kanpur, who, used to visit consistently to Aheripur and
perform Pooja Pathshala and manage the all arrangements of the said
temple. The temple and pond were constructed and built by the ancestors
and elders of the family, and the land is attached to the temple was in the
ownership and in Sarvakarship of ancestors of the defendant. The entire
property belongs to the Maheshwari family, whereas the temple and pond
are always open for publicly worship and use by every person. Here the
contention of plaintiff/temple is having prima facie force that said temple
is of public purposes because the first name came into Sarvakara of said
temple is of Ramswaroop Maheshwari, and there is no name of any
Sarvakar in the said temple whereas said temple was in existence since a
long time.It is stated by the defendant/respondent that said temple and
pond was constructed by their ancestors and elder persons and they were
also in possession of the land adjacent to the said temple and the entire
properties was of Maheshwari family. Whereas, none of the documentary
evidence had been provided nor any document of Sarvakar or of
maintenance of said temple by the predecessor of defendant or of any
predecessor of first Sarvakar, Ram Swarup Maheshwari, whose name
came into existence. Whereas the temple is of public nature it is admitted
case of both plaintiffs as well as defendant.
23. The respondent/defendant had not objected that the aforesaid Ram
Swarup, Sarvakar of the temple was not having any children. He has
attained his old age. He was unable to properly manage the affairs of the
temple due to illness and weakness, hence in such circumstances, he
considered it appropriate during his lifetime to execute a Will in respect
of the temple and its attached properties so that the temple, its lands and
properties might remain protected and the worship and rituals of the
temple might continue smoothly. Accordingly, he executed a Will dated
21-12-1976 in favour of his grandson Sushil Chandra Maheshwari son of
Vishambhar Dayal Maheshwari, resident of village Aheripur, as

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Sarvarakar of the said temple alongwith all the properties connected with
the said temple including agricultural land. The said will was prepared on
21.12.1976. It is also mentioned in the said Will, that during the lifetime
of the testator, he himself would remain the Sarvarakar, owner, person in
possession and overall manager of the temple and its attached properties.
After his death, the said Sushil Chandra Maheshwari would become the
Sarvarakar of Shri Maharajadhiraj Shri Ramchandra Ji Maharaj Virajman
Temple, Aheripur, Pargana Bharthana, District Etawah, and would enjoy
all rights relating to the said temple. He would look after the temple,
maintain its administration and management, arrange for worship,
offerings to the deity and cleanliness. In respect of the agricultural lands
attached to the temple bearing Plot Nos. 557 measuring 0.62 acre and 396
measuring 0.71 acre, the said Sushil Chandra Maheshwari was given full
authority and was entitled to have his name entered in the government
records as Sarvarakar and to utilize the said properties for the benefit of
the temple. Thereafter, the said Ramswaroop has died and upon his death
on the basis of said will, the entire management and right of Sarvakar of
said temple alongwith entire properties and management of all affairs of
the temple was devolved in favour of Sushil Chandra
Maheshwari/respondent/defendant, in the capacity of Sarvarakar.
24. On the basis of the aforesaid Will, Sushil Chandra filed an
application for transfer of his name in the agricultural, land attached with
said temple. He has moved an application for mutation before the
Tehsildar being Mutation Case No. 203 of 2002 before the Court of
Tehsildar, Bharthana for mutation of his name in respect of the
agricultural land attached to the temple, and by order dated 06-03-2002,
the name of Sushil Chandra Maheshwari has already been recorded as
transferable Bhumidhar in respect of Plot Nos. 197 and 199 in the
capacity of Sarvarakar. Whereas, Smt. Kasturi Devi wife of Kanhaiyalal,
resident of village Aheripur, Pargana Bharthana, District Etawah, who is
having one house, saw mill, flour mill and factory, executed a Will dated
17-07-1972, duly notarized, in favour of her niece Smt. Shanti Devi
widow of Vishambhar Dayal, resident of village Aheripur, and given to
her all rights. After death of Kasturi Devi, Smt. Shanti Devi through a
written Will dated 02-12-2000, authorized her adopted son Arvind Kumar

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son of Late Vishambhar Dayal that, if the aforesaid property is sold, the
amount received therefrom shall be utilized for the renovation and
restoration of Ram Janki Temple, Ramtal. Upon the said plot, shops were
constructed in the year 2012 under the supervision of Sushil Chandra
Maheshwari , and the said property is under the exclusive possession of
the beneficiary under the Will. Earlier the aforesaid Ramswaroop had
appointed a Baba for the care, maintenance, worship and rituals of the
temple, and after the death of the said Baba, Nepali Baba was appointed
as the priest. Nepali Baba continuously looked after and performed
worship and rituals in the said temple for about 39 years. Thereafter,
Irendra Das performed worship and rituals for about 15 years, and
thereafter Jeetu Gaur continued the same for about 2 years. In the year
2020, upon the desire/request of Shyamsundar Das for management and
worship of the temple, the opposite party/defendant handed over the keys
of the temple to the said Shyamsundar Das.
25. The respondent/defendant has further submitted that the family
members of respondent/defendant and relatives are fully devoted and
faithful belief in the said temple and deity and they are not any malafide
intention. They had no intention to sell the property of the said temple.
They are even not in the need of it. The respondent/defendant has
admitted this fact that family of defendant is settled in Chennai and for
business purpose, he used to visit Chennai and the original defendant are
seriously ill and also getting his treatment at Chennai. When original
defendant had visited to the said village, then it came to his knowledge
that the said Shyamsundar has a household life and children, and in the
name of saints and ascetics, he gathers anti-social elements and consumes
intoxicating substances, thereby turning the temple into a centre of
criminal activities and creating danger to the security of the temple. When
the defendant/respondent demanded return of the keys of the temple from
the said Baba Shyamsundar, he refused to hand over the same. The
original defendant has filed his objection that the aforesaid Baba had sold
the green standing trees situated in the compound of the said temple. He
has also filed an application before the concerned police station
Bakewear, but that was disposed of with saying that civil dispute is
pending before the civil court. that the matter was pending before the

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Civil Court and returned the application.The original
defendant/respondent had died and he has been substituted by his son 1/1
and 1/2 and they raises the same objection which has been raised by the
original defendant, Sushil Maheshwari. He has also objected that the
original defendant Sushil Maheshwari has performed all duties which was
provided to him in the Will and thereafter on the basis of Will, the
respondent nos. 1/1 and 1/2, Amit and Anup Kumar, are having entire
control and managing the affairs of the said temple. They have also raised
objection that the plaintiffs are persons of highly dubious character and
are acting in collusion with one another. They maintain association with
criminal-minded persons. The intention of the plaintiffs is dishonest, and
they seek to illegally usurp and ruin the temple and its properties. When
the defendant/respondent did not allow them to succeed in their designs,
they instituted the present false suit on the basis of false and concocted
facts. The defendant/respondent has stated that in view of the aforesaid
facts and circumstances, the application of the plaintiffs/appellant seeking
permission to institute the suit deserves to be dismissed with cost.
26. Learned counsel for the defendant/respondent has submitted their
objection on the basis of law laid down in the
Janardan Dagdu
Khomane and another Vs. Eknath Bhikhu Yadav and others; 2019
and he relied on paragraph nos. 33,34 and 35
(0) Supreme (SC) 1040
which are as follows:-
" 33 . A constructive trust arises by operation of law, without regard to the intention of
the parties to create a trust. It does not require a deed signifying the institution of
trust. Under a constructive trust, the trust arises by operation of law as from the date
of the circumstances which give rise to it. The function of the court is only to declare
that such a trust has arisen in the past.
. Constructive trust can arise over a wide range of situations. To quote Cardozo, J.,
34
" a constructive trust is a formula through which the conscience of equity finds
expression."

Story on Equity Jurisprudence has explained 'Constructive Trust" as:
35.

"One of the most common cases in which a Court of equity acts upon the ground of

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15
implied trusts in invitum, is where a party has received money which he cannot
conscientiously withhold from another party. It has been well remarked, that the
receiving of money which consistently with conscience cannot be retained is, in equity,
sufficient to raise a trust in favour of the party for whom or on whose account it was
received. This is the governing principle in all such cases. And therefore, whenever
any controversy arises, the true question is, not whether money has been received by a
party of which he could not have compelled the payment, but whether he can now,
with a safe conscience, ex aequo et bono, retain it. Illustrations of this doctrine are
familiar in cases of money paid by accident, or mistake, or fraud. And the difference
between the payment of money under a mistake of fact, and a payment under a mistake
of law, in its operation upon the conscience of the party, presents the equitable
qualifications of the doctrine in a striking manner. It is true that Courts of Law now
entertain jurisdiction in many cases of this sort where formerly the remedy was solely
in Equity; as for example, in an action of assumption for money had and received,
where the money cannot conscientiously be withheld by the party; following out the
rule of the Civil Law; Quod condition in debiti non datur uitra, quam locupletior
factus est, qui accepit. But this does not oust the general jurisdiction of Courts of
Equity over the subject-matter, which had for many ages before been in full exercise,
although it renders a resort to them for relief less common, as well as less necessary,
than it formerly was. Still, however, there are many cases of this sort where it is
indispensable to resort to Courts of Equity for adequate relief and especially where
the transactions are complicated, and a discovery from the defendant is requisite."

27. Learned counsel for the defendant/respondent has also placed reliance
on the law laid down by the Supreme court in Bishwanath and another

Vs. Sri Thakur Radha Ballabhli and others; 1967(0) Supreme (SC) 38
and he relied on paragraph no.7 which reads as under:-
"7. It is settled law that to invoke S.92 of the Code of Civil Procedure, 3
conditions have to be satisfied, namely, (i) the trust is created for public
purposes of a charitable or religious nature, (ii) there was a breach of trust
or a direction of Court is necessary in the administration of such a trust, and
(iii) the relief claimed is one or other of the reliefs enumerated therein. If
any of the 3 conditions is not satisfied, the suit falls outside the scope of the
said section. A suit by an idol for a declaration of its title to property and for
possession of the same from the defendant, who is in possession thereof
under a void alienation, is not one of the reliefs found in S. 92 of the Code of

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16
Civil Procedure. That a suit for declaration that a property belongs to a
trust is held to fall outside the scope of S. 92 of the Code of Civil Procedure
by the Privy Council in Abdur Rahim v. Abu Mahomed Barkat Ali, 55 Ind
App 96 and by this Court in Pragdasli Guru Bhagwandasji v. Ishwarlalbhai
Narsibhai, 1932 SCR 513:, on the ground that a relief for declaration is not
one of the reliefs enumerated in S. 92 of the Code of Civil Procedure. So too,
for the same reason a suit for a declaration that certain properties belong to
a trust and for possession thereof from the alienee has also been held to be
not covered by the provisions of S. 92 of the Code of Civil Procedure: See
Mukhda Mannudas Bairagi v. Chagan Kisan Bhawasar, ILR(1957) Bom
809. Other decisions have reached the same result on a different ground,
namely, that such a suit is one for the enforcement of a private right. It was
held that a suit by an idol as a juristic person against persons who interfered
unlawfully with the property of the idol was a suit for enforcement of its
private right and was, therefore, not a suit to which S. 92 of the Code of
Civil Procedure applied: See (Darshan Lal v. Shibji Mahraj Birajman, ILR
45 All 215 and Madhavrao Anandrao v. Shri Omkareshvar Ghat, 31 Bom LR
192. The present suit is filed by the idol for possession of its property from
the person who is in illegal possession thereof and, therefore, it is a suit by
the idol to enforce its private right. The suit also is for a declaration of the
plaintiff s title and for possession thereof and is, therefore, not a suit for one
of the reliefs mentioned in S. 92 of the Code of Civil Procedure. In either
view, this is a suit outside the purview of S. 92 of the said Code and,
therefore, the said section is not a bar to its maintainability."
28. Section 92 CPC provides public charities which reads as under:-
.(1) In the case of any alleged breach of any express or
"92.Public charities
constructive trust created for public purposes of a charitable or religious nature, or
where the direction of the Court is deemed necessary for the administration of any
such trust, the Advocate-General, or two or more persons having an interest in the
trust and having obtained the [leave of the Court,] may institute a suit, whether
contentious or not, in the principal Civil Court of original jurisdiction or in any other
Court empowered in that behalf by the State Government within the local limits of
whose jurisdiction the whole or any part of the subject-matter of the trust is situate to
obtain a decree-

(a) removing any trustee;

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17
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(cc) directing a trustee who has been removed or a person who has ceased to be a
trustee, to deliver possession of any trust property in his possession to the person
entitled to the possession of such property;]
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust property or of the interest therein shall be
allocated to any particular object of the trust;
(f) authorising the whole or any part of the trust property to be let, sold, mortgaged or
exchanged;
(g) settling a scheme; or
(h) granting such further or other relief as the nature of the case may require.

(2) Save as provided by the Religious Endowments Act, 1863 (20 of 1863), [or by any
corresponding law in force in [the territories which, immediately before the 1st
November, 1956, were comprised in Part B States]], no suit claiming any of the reliefs
specified in sub-section (1) shall be instituted in respect of any such trust as is therein
referred to except in conformity with the provisions of that sub-section.

[(3) The Court may alter the original purposes of an express or constructive trust
created for public purposes of a charitable or religious nature and allow the property
or income of such trust or any portion thereof to be applied cypres in one or more of
the following circumstances, namely:-
(a) where the original purposes of the trust, in whole or in part,-
(i) have been, as far as may be, fulfilled; or
(ii) cannot be carried out at all, or cannot be carried out according to the directions
given in the instrument creating the trust or, where there is no such instrument,
according to the spirit of the trust; or
(b) where the original purposes of the trust provide a use for a part only of the
property available by virtue of the trust; or
(c) where the property available by virtue of the trust and other property applicable
for similar purposes can be more effectively used in conjunction with, and to that end
can suitably be made applicable to any other purpose, regard being had to the spirit
of the trust and its applicability to common purposes; or
(d) where the original purposes, in whole or in part, were laid down by reference to
an area which then was, but has since ceased to be, a unit for such purposes; or

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18
(e) where the original purposes, in whole or in part, have, since they were laid down,-
(i) been adequately provided for by other means, or
(ii) ceased, as being useless or harmful to the community, or
(iii) ceased to be, in law, charitable, or
(iv) ceased in any other way to provide a suitable and effective method of using the
property available by virtue of the trust, regard being had to the spirit of the trust."


29. In the aforesaid definition, Section 92 CPC, the words express or
constructive trust created for public purposes are used by the wisdom of
legislature. As per Section 92(d) directing accounts and inquiries; (g)
settling a scheme; and clause (h) granting such further or other relief as
the nature of the case may require.
30. In the present case, leave to application for filing suit under Section
92 CPC has been filed alongwith copy of the plaint. It is the contention of
the learned counsel for the appellants/plaintiffs that said temple is a public
temple and large number of public comes every day for worship there and
there is need of proper committee of management for managing the
affairs of the temple. Whereas, it is held by this Court in Ambrish
that while granting leave the court does not decide
Kumar Singh(supra)
the rights of the parties. No right is adjudicated at this stage. The, court
has merely to see whether there is a prima facie case for granting leave to
file a suit. This order does not in any way affect the final decision which
will be given on merit after the parties have led evidence in the suit.
31. The doctrine of constructive trust has been discussed by the Supreme
Court of India in ). It is also submission of the
Operation Asha (supra
respondent/defendant that the temple and pond were constructed and built
by the ancestors and elders of the family and the land is attached to the
temple which was in the ownership and Sarvarakarship of the ancestors of
defendant/respondent. The entire properties belong to Maheshwari family,
whereas the temple and pond are always open for public worship and used
by every person. Hence, contention and submission of the learned counsel
for the appellants/plaintiffs/temple is having, prima facie, legal force that
the said temple is of public purposes.
32. The defendant/respondent has mentioned that the first name of

FAFO No. 1018 of 2026
19
Sarvarakar of the said temple is of Sri late Ram Swarup Maheshwari and
there is no name of any Sarvarakar prior to him in the said temple.
Whereas, it is prima facie clear from the facts that the temple was in
existence since long time and used by public at large. Whereas, none of
the documentary evidence has been produced about Sarvakarship or of
maintenance of said temple by the predecessor of the
defendant/respondent or of any predecessor of first Sarvarakar, late Ram
Swarup Maheshwari. It is the first name which came into existence,
whereas, public nature of the temple is not disputed by the both parties.
33. It is held by the Supreme Court in Janardan Dagdu Khomane
that constructive trust arises by operation of law, without regard
(supra)
to the intention of the parties to create a trust.
34. In view of facts and circumstances of the case, being public nature of
temple and while granting leave, the court does not decide rights of the
parties and no right is adjudicated at this stage. The court has merely to
see that there is prima facie case for grant of leave to file the suit. This
order does not in any way affect the final decision which will be given on
merits after the parties have led evidences in the suit. Hence, the
impugned order dated 13.1.2026, passed by the learned Additional
District Judge/Fast Track Court No.1, Etawah, in Misc. Case (Under
Section 92 of C.P.C.) No. 103 of 2021 (Ramchandra Ji Maharaj Virajman
Mandir Ramtal and others Vs. Sushil Maheshwari since deceased and
another), is hereby and the leave to file original suit under
set aside
Section 92 CPC is hereby allowed.
35. The present appeal is accordingly,
allowed.
(Abdul Shahid,J.)
May 14, 2026
sfa/
Digitally signed by :-
SYED FAHEEM AHMAD
High Court of Judicature at Allahabad