1. ' ZAFFAR HUSSAIN MIRZ J.--This appeal by leave of this Court is directed against the judgment dated 15th October, 1974, by a Division Bench of the erstwhile High Court of Sind and Baluchistan, Karachi whereby the Letters Patent Appeal of the present appellants was dismissed with costs.
2. ' The dispute in this case relates to a property situated in Soldier Bazar near Karachi Municipal Corporation Market where there is a tomb of a divine named Hazrat Mehtab Shah Bukhari commonly known as the Dargah Shah Bukhari. The respondents representing a registered Society known as the Mehtab Shah Pir Bukhari Masjid Committee, Soldier Bazar, Karachi, instituted a suit on 18th April, 1961, for "a permanent and perpetual injunction restraining the defendants from holding Majlises or performing Matam or calling the Azan in the Dargah (Shrine) premises or accommodating persons in the shed meant and built for purposes of education and also to restrain them from interfering with the ba-jamaat nimaz of the Sunni community or in any way, to interfere in the Upkeep and management of the mosque within the premises of the Dargah." This suit was contested by the appellants but it was decreed by the trial Court and the decree was upheld in first and second appeals filed by the appellants. Ultimately the appellants preferred the Letters Parent Appeal against the judgment of the learned Single Judge who dismissed the second appeal and this Letters Patent Appeal was also dismissed by a Division Bench of the High Court by the impugned judgment in this appeal.
3. ' The case of the plaintiffs as disclosed in the plaint, in substance was that the divine who was buried at the shrine belonged to the Sunni sect of Muslims and died in the year 1914. A mosque was built within the compound of the Dargah in about the year 1922 by the Sunni community from funds raised by them. It was averred that the members of the Sunni sect have been holding congregational prayers in the mosque. In about the year 1961 a shed was constructed within the compound of the shrine for the purpose of a madresa for imparting of religious education.
4. ' So far as appellant No,1 Fakir Shah is concerned the allegation of the plaintiffs was that he was serving as Mujawir at an adjacent shrine but he began to interfere `in the affairs of the disputed shrine with the result that there was dispute between him and one Yaqub Shah a Mujawir of the shrine. It was further alleged that appellant No,1 with the help of his nephew appellant No,2 who happened to be a driver in the Navaj Office taking advantage of the Martial Law regime ousted Yaqub Shah and posed himself as the sole mujawir of the shrine. The plaintiffs further alleged that the appellant No,1 allowed some Shias hailing from Gilgit to come and live in the shed which was erected for accommodating the madresa within the premises of the shrine. There was general allegation that Shia community Was interfering with the congregational prayers of the Sunnis and had started holding majalis, matam etc. On the basis of these allegations it was averred that by these acts the appellants wanted to convert a Sunni Dargah into a regular Shia Imambargah. The relief of perpetual injunction was sought as already stated above.
5. ' The defendants controverted all these allegations and claimed that the divine who was buried in the tomb was a Shia. According to their plea the Sunni commumity nad no access either to the mosque or to the dargah and that it was only in the year 1958 that some individuals from the Sunni community were permitted to offer prayers in the mosque. It was asserted by the appellants that the mosque had been under the management of the Shia community who were being attempted to be deprived of their right to manage the affairs of the Dargah. In addition to factual pleas some legal objections were also taken by the appellants to the maintainability of the suit.
6. ' The trial Court on a finding of fact held that the shrine was intended for Sunni community which was managing it until interference was caused by the appellants. It was further held that the divine who was buried in the tomb belonged to the Sunni sect. The legal objections raised by the appellants were also repelled.
7. ' On appeal the first appellate Court agreed with the trial Court as regards the findings in respect of the factual controversy and also upheld the view taken by it on questions of law urged against the suit. However, it is important to note that the appellants at this stage also took the objection that the suit of the respondents was barred under section 92 of the Civil Procedure Code for want of prior consent in writing of the Advocate-General. The first appellate Court rejected this objection on the view that the suit in the present case relates 'to the management of a trust property contested by two sects of the Muslim faith and such suit was outside the purview of the povisions of section 92 of the Civil Procedure Code.
8. ' The learned Single Judge of the High Court in the second appeal also upheld the decree passed in favour of the respondents and although the learned Judge dealt with the objection relating to the bar contained in section 92 L.P.C. In greater detail he also rejected the objection. Finally the learned Judges of the Division Bench agreed with the learned Single Judge in affirming the decree passed and agreed with the reasons that prevailed with the learned Single Judge in rejecting the legal objection.
9. ' Leave was granted by this Court to examine the contention of the appellants that in fact the suit was for the removal of Fakir Shah and others (appellants) from the management of the property which was indisputably waqf and certain related reliefs contemplated by section 92 C.P.C.; and consequently the suit was not maintainable without the consent in writing of the Advocate- General.
10. ' Mr. Fakhruddin G. Ebrahim, learned counsel appearing in support of the appeal contended that the Courts below had proceeded on a wrong proposition of law in taking into consideration the evidence adduced at the trial and not the contents of the plaint, in order to determine the question whether the provisions of section 92 C.P.C. Were attracted in this case. He submitted that a bare perusal of the averments made in the plaint makes it quite clear that it was an admitted position that appellant Fakir Shah was in actual management of the properties constituting the Dargah and the mosque, and that the same were being put to a use contrary to the objects of the waqf.
11. Learned counsel further argued that the relief of perpetual injunction and the terms in which it was couched also show that in substance the suit was intended to oust the appellant from the management of the waqf property by a direction from the Court. On the basis of these submissions counsel strongly urged that the provisions of section 92 were directly attracted and the suit was not competently filed.
12. ' On the other hand, Mr. Z.U. Ahmad-learned counsel for the respondents supported the judgments of the Courts below and the decree passed in favour of the respondents. According to him the plaint did not disclose a case falling within the ambit of section 92, C.P.C. Learned counsel submitted that the case of the plaintiffs as disclosed in the plaint was that the Masjid Committee was in the management and control of the waqf property and the appellants were causing interference. He further submitted that there is no admission in the plaint that the appellants are in the management and control of the property in dispute.
13. ' In order to appreciate the arguments advanced by the counsel it will be of advantage to set out section 92, C.P.C. Which reads as follows: "Public charities.--(1) In the case of any alleged breach of any express or constructive trust created for public purposes ci 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 consent in writing of the Advocate-General, 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 (Provincial 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- {{TABLE}
(a) removing any trustee;
(b) appointing a new trustee;
(c) vesting any property in a trustee;
(d) directing accounts and inquiries;
(e) declaring what proportion of the trust-property or of the interest therein shall be allocated the trust;
(g) authorising the whole or any part of the let, sold, mortgaged or exchanged; settling a scheme; or granting such further case may require.
(2) Save as provided suit claiming any of the instituted in respect of except in conformity with by the Religious Endowments Act, 1863, no reliefs specified in subsection (1) shall be any such trust as is therein referred to the provisions of that subsection."
14. ' It will be seen from the aforesaid provisions that in order to file a suit under section 92, C.P.C. The following conditions must be fulfilled: "(1) There must exist a trust for a public purpose of a charitable or religious nature.
(2) The plaint must either allege that there is a breach of trust or that the directions of the Court are necessary for the administration of the trust.
(3) The suit must be a representative one on behalf of the public and not for the assertion of the personal rights of the plaintiffs.
(4) The relief claimed must be one of the reliefs enumerated in section 92."
15. If all the above-said conditions are satisfied in regard to a suit then such a suit can only be filed in accordance with the procedure laid down in section 92, and an action in any other form will be barred. Some of the principles which are well-settled in this connection are that in order to attract the applicability of this section it has to be seen whether the suit is for vindication of a public right; and for this purpose the substance and not the form of the suit must he looked at. Another principle laid down is that the contents of the plant will determine the maintainability of the suit and the attraction of the bar contained in section 92.
16. ' In the light of the principles enumerated above, it is now necessary to examine the plaint in order to determine the nature of the suit brought by the respondents. Our attention was specially invited to the contents of the following paragraphs of the plaint; "(11) That Faqir Shah son of Sardar Ali Shah, defendant No,1 who hails from Punjab and was serving as Mujawar in the Dargah of Hazrat Pir Masoom Shah, whose Mazar is near Napier Barracks, Saddar, began to interfere in the affairs of the Bukhari Durgah and there was some quarrel between one Yaqoob Shah who was also then working as a Mujawar of the said Dargah and this went on for several years when with the advent of the Martial Law Regime, Faqir Shah defendant No,1 with the help of his newphew defendant No,2, who happened to be a driver in the Naval Office, Saddar Karachi, got Yakub ousted and has since then been posing as sole Mujawar of the said Dargah.
(12) That about 17 or 18 months ago some Shia residents of Gilgit Agency came to Karachi in search of work and employment in the mills and other places and who on the intercession of defendants No,4, 5 and 10 came into contact with defendants No,1 and 11 and these defendants to augment their income illegally accommodated those Gilgit persons in the Madrasa Shed which was not meant for this purpose.
(14) That the above-said people including the defendants began to hold Majlises and perform matam and call Azan according to the principles of Shia religion within the precincts of the Dargah which was not meant for these purposes.
(15) That naturally the Sunni residents of the locality resented the above-said behaviour of the defendants and their other associates and therefore warned the defendants to desist from misusing the Madrasa and Dargah premises but they instead of heeding the same advice and warning of the people began to hold Majlises on a large scale and performing matam at the time of prayers in the mosque."
17. ' The relief clause of the plaint was in the following terms: "It is therefore prayed that this Hon'ble Court will be pleased to issue a permanent and perpetual injunction restraining the defendants from holding Majlises or performing matam or calling the Azan in the Dargah premises or accommodating persons in the shed, meant and built for the purposes of education and also to restrain them from interfering with the Ba-jamaat Namaz of the Sunni community or in any way to interfere in the upkeep and management of the mosque within the premises of the Dargah."
18. ' The allegations in para.11 of the plaint quite clearly indicate that Faqir Shah appellant succeeded in ousting Yaqoob Shah, who according to the respondents was the Mujawar and since that time had arrogated to himself the office of the sole Mujawar of the Dargah. From the rest of the allegations in paras.12, 14 and 15 it is quite apparent that the respondents conceded that appellant No,1 particularly and the rest of the appellants were in effecove control and the management of the waqf property in dispute, although their right to such management was disputed.
19. ' It is not disputed that the shrine and the properties attached to it are a public waqf and would, therefore, be a trust for public purposes of a religious nature. Accordingly the first precondition as laid down by section 92, C.P.C. Admittedly exists. As regards the second precondition there are clear allegations in the plaint that the waqf was meant for the Sunni community and the shed constructed there was for the purpose of imparting religious education, but these properties were being used for purposes other than those for which they were dedicated. Consequently the plaint alleges a breach of trust, but in any case the fact that prayer for perpetual injunction was sought to restrain the appellants from committing the alleged derogatory acts, clearly shows that directions of the Court were considered 'necessary for the administration of the' trust. As to the last precondition, namely, that the relief claimed in the suit must be one enumerated in section 92, C.P.C., it was urged on behalf of the appellants that the terms in which the perpetual injucntion was sought coupled with the other averments in the plaint, constituted in substance the removal of Faqir Shah appellant as a trustee as provided by clause (a) of subsection(1) of section 92, C.P.C. On the other hand it was contended on behalf of the respondents that the respondents in the plaint did not accept Faqir Shah appellant as the trustee but on the contrary asserted that he was - causing interference alongwith other appellants in the management of the Waqf properties.
20. ' We have carefully and closely examined the plaint but find no clear averments anywhere therein that the respondents were in actual control and management of the waqf properties. As already observed the suit was brought in the name of Masjid Committee, and the contents of the plaint clearly show that the suit was brought for the Sunni community at large and not for the rights of any individual. It is admitted position that the shrine existed at least before 1922 and according to the learned counsel for the respondents the Masjid Committee was registered under the Societies Registration Act, 1960, on 13th January, 1961. The suit was filed on 18th April, 1961. Obviously, therefore, the Masjid. Committee could not, have been entrusted with the management of the waqf property by whosoever was in control thereof before January, 1961. Even the plaint .Does not at any place show anything to the effect that the Masjid Committee was appointed Mutawalli or entrusted with the management of the waqf properties or that there was interference in such management. From these circumstances the perusal of the plaint indicates that the grievance of the respondents was to restrain the appellants who had come into dominion over the waqf property and its management through illegal means. In Haji Sheikh Mahboob Ilahi and another v. K.M. Idris and 2 others (PLD 1955 Lah.242), where in a representative suit on behalf of the general body of the citizens for an injunction restraining the trustees from renovating the building constituting the trust, as a cinema contrary to the alleged purpose of the trust, it was held that in substance the relief sought amounted to controlling G the trustees in their management of the trust ,and therefore the relief fell under clause (h) section 92. The suit was held incompetent without the sanction under section 92 C.P.C.
21. ' The assertion 'of the plaintiffs that the defendants have no right to management, if otherwise, as shown above, one of the defendants was proclaiming to be the sole Mujawar, will make no material difference as to the nature of the suit as contemplated in section 92 C.P.C. It has been held that the removal of a trustee contemplated by section 92 is not confined to properly and lawfully appointed trustees. The trustee may be a de jure, or de facto or constructive trustee. Our attention was drawn to' Muhammad S. Labbai v. Muhammad Hanifa (AIR, 1976 S.C.1569), in which de facto Managers of the properties in suit were held to be trustees within the meaning of section 92 C.P.C. In Khadim Hussain and others v. Ata Muhammad and others (PLD 1967 Lah. 915), in the context of section 92 C.P.C. It was observed as under: "For a trustee de son tort is a person who "by mistake or otherwise assumes the character of trustee, when really it does not belong to him." Before a person can be labelled as trustee de son tort it is essential that it should be shown that the person concerned has positively assumed to act as a trustee. If that be not so heremains just a stranger and not a trustee de son tort. In the present case the plaint does not allege that the defendants are trustees de son tort or that they are in possession of the property as trustees of any kind whatsoever. The allegation is that they are trespassers who have taken possession of the property belonging to the trust and are utilising the same for their own personal ends."
22. ' The position taken by the plaintiffs, however, in the plaint in this ease is that Fakir Shah appellant ousted the legally appointed Mujawar and assumed to himself the function of a Mujawar and was purporting to administer the affairs of the waqf although contrary to the purposes thereof. It is no where alleged that the defendants were trespassers and strangers, in the sense that they were utilizing the waqf properties for their own personal ends.
23. ' The proposition that the test for applicability of section 92 C.P.C. Is to peruse the allegations in the plaint alone and that a de facto trustee or trustee de son tort, was well within the purview of section 92 C.P.C. Is supported by decisions reported as Ramdas, Bhagat v. Krishna Prasad Tewari and others (AIR 1940 Patna 425) , Mulchand Bassarmal v. Devigir Motigir (AIR 1936 Sind 179), Haji Muhammad Nabi Shirazi and others v. Province of Bengal and others (AIR 1942 Calcutta 343) and Association of Radhaswa mi Dera Baba Bagga Singh and another v. Gurnam Singh and others (AIR 1972 Rajasthan 263).
24. ' Having regard to what has been discussed above it 'is now necessary to examine the reasoning adopted by the Courts below in rejecting the contention of the appellants based on the bar contained in section 92, C.P.C. The learned Additional District Judge in this connection recorded his reasons as under: "The first objection is that compliance of section 92, C.P.C. Has not been done. Under section 92 there should be a breach of an already established trust or it should be on the direction of the Court for the establishment of such a trust then the compliance of section 92 is to be done. Here the case is of the nature of the trust which two sects of Muslim faith contest and each claims the right to manage it. Clauses (a) to (h) of subsection (1) of section 92 C.P.C. Exclude such suit from the purview of section 92, C.P.C. Therefore, section 92 does not bar the suit."
25. ' To say the least the legal question has not received proper consideration in the' light of the principles pointed out above.
26. ' In the second appeal the learned Single Judge after noting the contention advanced on behalf of the apellants and referring to the relief clause of the plaint recorded the following reasons to reject the same: "A plain reading of the reliefs claimed in this paragraph shows that they do not fall within any of the clauses of section 92 as mentioned above. The reliefs proceed on the basis that the plaintiff- committee is in charge of the management of the mosque and the appellants are interfering with that management by doing certain acts. The contention that the suit was one for the removal of a trustee proceeds on an assumption which has not been found to be established on the record, namely, that defendant No,1 is the trustee of the mosque. This is undoubtedly the assertion of the 'defendants, but the finding of fact recorded by the two Courts below is to the contrary. This is, therefore, not a case for the removal of a trustee, nor is it a case of the vesting of property in any trustee. On this view of the matter, the provisions of section 92 of the Code of Civil Procedure are not attracted in the present .Case.
27. ' The cases relied upon Mr. Munawar Abbas are clearly distinguishable. There can be no quarrel with the proposition laid down in Ramdas Bhagat's case to the effect that in considering the application of section 92 the Couk must look to the substance of the claim and not merely to its wording and that section 92 applied to a suit for the removal of trustees de son tort i.e,, for the removal of persons who are trustees de facto but not de jure. In the present cases, as already stated, the factual position is that the mosque, being connected with a Sunni divine, was being managed initially by the Sunni residents of the Mohallah who later formed a Masjid Committee and got it registered. The defendants or any one of them cannot, therefore, be regarded as being in the nature of a trustee de son tort. In case of Sheikh Mehboob Illahi and another the relief claimed was found by the learned Judge to be similar to that mentioned in clause (e), though not covered by it, and the effect of grant of relief was to control the trustees in their management of the trust. It was further observed that clause (h) covers only reliefs that are ejusdem generis with the reliefs mentioned in clauses (a) to (g) and accordingly the suit aimed at prohibiting the trustees or putting the property to a particular use was covered by section 92 of the Code of Civil Procedure. A perusal of these facts is enough to show that they have nothing in common with those of the instant case. The .Same observations apply to the case of Haji Mian Jan.
28. ' On behalf of the respondent Mr. Z . U. Ahmed drew attention to Muhammad Siddiq v. Bhupendra Narayan Roy Chowdry (PLD 1962 Dacca 643) and Kadim Hussain and 3 others v. Ata Muhammad and others (PLD 1967 Lah. 915) in both of which the proposition stated in Sheikh Mehtoob Maid and another regarding the scope of clause (h) of section 92 has been reiterated, and contended that as the relief claimed by the plaintiff did not fall under any of the clauses enumerated from (a) to
(g) of section 92, the suit could not be brought within the purview of the section by the applicant of clause (h). I agree with this view for the reasons already stated.
29. ' The statement that the relief claimed proceeds on the basis that plaintiff-committee is incharge of the management of the mosque, as pointed out above, is not borne out by the contents or the plaint. Indeed the plaint nowhere pleads that the Masjid Committee was in the management of the waqf property. Even the relief clause merely seeks to restrain the defendants from interfering in the upkeep of the management of the mosque, but stops short there and does not plead that the management is that of the Masjid Committee. However, as strongly contended by the ,learned counsel for the appellants, the error in which the learned Judge fell was that he considered the nature of the suit on the basis of the evidence recorded at the trial of the suit and not on the averments of the plaint. In the light of the law discussed above, we are inclined to hold that the learned Judge was not justified to refer to the findings of fact recorded by the Courts below on the question whether Faqir Shah appellant was the trustee of the mosque and then to hold that the suit was not one for the removal of the trustee. Further even the statement by the learned Single Judge that the mosque was being managed initially by the Sunni residents of the Mohallah who later formed a Masjid Committee is not contained in the plaint.
30. ' Finally the learned Judges of the Division Bench on their part upheld the reasoning and the view taken by the learned Single Judge and stated as follows: "I think a plain reading of this section shows that the suit does not fall within any of the clauses. The contention of learned counsel for the appellants is based on clause (a) that is to say, he contends that the suit is in substance, though not in form, for the removal of defendant No,1 Faqir Shah whom it was alleged, was the trustee of the mosque. Now it is true of course that it was the contention of the defendants that Faqir Shah was the trustee but as fact this has been found against the defendants and although the question is not now open before us. I am inclined to think that was a correct finding. This was not a suit, therore, for the removal of a trustee nor for the vesting of a property in any trustee. Learned counsel argues that section 92 applies as much to a trustee regularly appointed as to a trustee de son tort, that is, a trustee de facto although not de jure.
31. Reliance was placed in this connection on several cases including the case of Ramdas Bhagat v.
32. Krishna Prasa (AIR 1940 Patna 425) where it was held that the Court ought to look to the substance of the claim and not merely the manner in which it is worded. Like the learned Single Judge I have no quarrel with this proposition but the factual position in this case is not the same. It has been found that the mosque was being managed by the Sunni residents of the Mohallah who later formed a Masjid Committee and none of the defendants can, therefore, be regarded, in my view, as being a trustee de son tort."
33. ' Once again the learned Judges of the Division Bench decided the question solely on the basis of the findings recorded at the trial, and not on the substance of the case as disclosed in the plaint.
34. For the same reasons, therefore, as applied to the view taken by the learned Single Judge, the learned Judges of the Division Bench fell into an error of law in taking into account irrelevant materials for the purpose of determining the applicability of section 92 C.P.C. The decision of the Courts below is, therefore, unsustainable as it is not in accordance with law.
35. ' In view of what has been stated above we feel that having regard to the substance of the case pleaded in the plaint, the suit was of the nature contemplated in section 92, C.P.C. And therefore, it was not competent without the requisite prior sanction of the Advocate-General. The plaint in the suit itself disclosed that the suit was barred under the said provisions of law and consequently the plaint was liable to be rejected under Order VII rule 11(d) C.P.C.
36. ' In the result this appeal is allowed and the plaint is rejected under Order VII, rule 11(d) C.P.C., with no order as to costs.