1 S. No. 77 IN THE HIGH COURT OF JAMMU & KASHMIR AND LADAKH AT SRINAGAR CR No.28/2025 CM No.3631/2025 SUHAIL AHMAD JAN …Petitioner(s) Through: Mr. N. A. Beigh, Sr. Advocate with Mr. Sofi Manzoor, Advocate Vs. ZUBAIR JAN AND ORS ...Respondent(s) Through: None. CORAM: HON’BLE MR JUSTICE JAVED IQBAL WANI, JUDGE O R D E R 19.08.2025 (ORAL) 1. The instant revision petition filed by the petitioner herein is barred by 12 days delay, having been filed under Section 115 of the Code of Civil Procedure against order dated 24.02.2025, passed by the court of Principle District Judge Ganderbal in suit titled as “Dr. Zubair Jan v. Suhail Ahmad Jan and others”, however, having regard to the explanation offered thereof the said delay is condoned and the revision petition is taken up for consideration and disposal accordingly. 2. Facts emerging from the record would reveal that respondent 1 herein filed a suit before District Judge Ganderbal for declaration and permanent injunction against the petitioner herein besides one, Haji Mohammad Ashraf Jan, Commissioner Secretary, Revenue Department of the then State of Jammu and Kashmir, Deputy Commissioner Ganderbal, Tehsildar Ganderbal, and Patwari Halqa Darrend Ganderbal. In the said suit, it came to be averred by the plaintiff/respondent 1 herein that the defendant 2 therein namely Haji Mohammad Ashraf Jan, being father of the plaintiff as well, purchased 15 kanals and 193/4 marlas of land situated at Mozua Darrend, Ganderbal in the capacity of Chairman of “Green Land Educational Society”, pursuant to various sale deeds annexed with the 2 plaint, however, the defendants 1 and 2 illegally in a well-designed conspiracy and in order to usurp and plunder the said land, of the Society managed execution of 4 transfer deeds, being 3 gift deeds and 1 sale deed qua the said land and thereby violated the basic and fundamental feature of the Society, inasmuch as caused damage and injury to the property of the said Society clandestinely. It also came to be averred in the said suit that the defendants 1 and 2 also illegally managed to purchase 03 kanals and 02 marlas of land at Darrend Ganderbal pursuant to three sale deeds from the property/assets and incomes of the said Society. It also came to be pleaded by the plaintiff in the said suit that defendant 1 in a disguised manner, created another Society under the name of “Green Land Foundation” in order to swindle the income and property of the Society, illegally and unlawfully, and that the defendants are contemplating to further alienate the properties of the Society. It also came to be averred in the suit by the plaintiff that, upon coming to know about the said illegal acts of the defendants 1 and 2, he, the plaintiff, approached the official defendant/ respondent 5 and 6, herein in order to know as to how the revenue extracts pertaining to the land of the Society came to be issued in favour of defendants 1 and 2, and that in fact the said defendants 1 and 2, in collusion with the official defendants, succeeded in alienation of the landed property of the Society, and that, in order to protect the property of the Society intervention of the Court became inevitable, necessitating the filing of suit. 3. The defendants 1 and 2, therein the said suit after entering appearance pursuant to the summons issued by the trial court, filed written statement to the suit, besides filing an application under Order VII, Rule 11, CPC for rejection of the plaint, on the premise that the suit is not maintainable, being barred by the provision of Section 92 CPC. 4. The trial court, upon considering the said application filed by the defendants 1 and 2 before it, however, dismissed the same, in terms of the impugned order, while holding that the Society in respect of the property and assets of which suit stands filed does not qualify to be a 3 trust within the provisions of Section 92 CPC read with Section 9 CPC. 5. The petitioner herein has maintained the instant petition inter-alia on the grounds that the trial court erred in rejecting the application in terms of impugned order and that the Society being operated for charitable purposes qualified despite being registered as a Society under the Society Registration Act, thus is a trust within the meaning of Section 92 CPC, as also in view of various judgments of the Apex Court, wherein un-aided private educational institution has been regarded as constructive charitable trust, attracting the provision of Section 92 CPC. Heard counsel for the petitioners and perused the record. 6. Before proceeding to advert to the case set up by the petitioner in the instant petition, it would be appropriate to refer to provision of Section 92 CPC hereunder being germane to the controversy: - 92. Public charities .- (1) In the case of any alleged breach of any express or 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; (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)authorizing 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 4 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 cy pres 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 (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.] What emanates from the aforesaid provision is that the suit under Section 92 CPC is a suit of special nature for protection of public rights and public trust and charity, and the suit is fundamentally on behalf of the entire body or persons who are interested in the trust, and in essence is for the vindication of public rights with primary object to afford protection to public trust of charitable or religious nature, from being subjected to the harassment in suits being filed against them, while putting a rider upon the institution of the said suits by providing that no such suit can be instituted except by the Advocate General or two or more persons, having an interest in the trust and only after obtaining leave of the court. Thus it becomes abundantly clear from the above that in order to maintain a suit under Section 92 CPC, it must be the existence of a trust for public purpose of a charitable or religious nature has to be 5 shown, whether express or constructive, and the public purpose of the charitable or religious nature is the foundational fact for institution of a suit under Section 92 CPC for any alleged breach thereof or where a direction of the court deemed necessary for the administration of such a trust. A reference in this regard to the judgment of the Apex Court passed in case titled as “Surga Bibi vs. Hazi Kummu Mia,” reported in 1969 SC 884 would be relevant. Further the Apex Court in case titled as “Radhakanta Deb and Anr. Vs. Commissioner of Hindu Religious Endowment” reported in 1981 (2) SCC 226 has held that whether an endowment of a charitable and religious nature is for public purposes or is of a private trust is a question of fact to be decided on a material placed before the court, as it is difficult to lay down any test or tests which may be of universal application in this regard. It is also consistent view of the courts that an express trust is created by agreement or contract, whereas a constructive trust arises not by any act of the party, but by operation of law, and a constructive trustee is a trustee who without title takes upon himself a character of a trustee and would include a person holding Pudusheri position, such as Mahant, shebait, or Mutuvali. 7. Keeping in mind the aforesaid position of law and reverting back to the case in hand, plaintiff/respondent 1, herein in the suit has specifically pleaded that defendant 1 purchased property in the capacity of Chairman of “Green Land Education Society” and subsequently parted with said land in terms of gift deeds/sale deeds in favour of defendant 1 with an aim to plunder the said property of the Society in violation of basic and fundamental feature of the Society, thereby causing an injury and damage to the Society and its properties and the defendants 1 and 2, while opposing the said suit in the written statement, inter-alia pleaded that the property claimed to be a properties of the Society was not purchased by defendant 2 in the capacity of Chairman of the Society but were purchased by defendant 2 out of the money provided by defendant 1, and there out of love and affection towards his father defendant 2, most of the properties were purchased in his name i.e. defendant 2 and that the plaintiff had no locus standi to maintain the suit as defendant 2 being the owner of the 6 properties had all the powers to dispose of the same, and that in fact the plaintiff have had bad eye over the properties of the defendant, and that the plaintiff is remotely associated with the Society and its business, and that, in fact, land referred in the suit stands transferred in the name of Green Land Foundation, another society of which defendant 1 is the Chairman, and that both the Societies are registered under Societies Registration Act under different registration numbers. 8. 8. The perusal of record available on the file bears testimony to the fact that indisputably both the aforesaid Societies are registered under Societies Registration Act, and that as to whether a Society registered under the Societies Registration Act is in essence a trust for the purposes of application of Section 92 CPC or not would depend on the fact of a particular case, and such an issue can said to be an issue not to be determined by a court in exercise of its power under Order VII Rule 11 but can be well decided once the suit is put to trial. 9. Thus for what has been observed, considered and analyzed hereinabove the application filed by the defendant/petitioner herein before the trial court for rejection of plaint under Order VIII Rule 11 CPC is found to be misconceived and shall dismissed notwithstanding the grounds rendered thereof by the trial court in the impugned order. Consequently the instant revision petition as well shall be deemed to have been dismissed. (JAVED IQBAL WANI) JUDGE SRINAGAR 19.08.2025 Ishaq Whether the judgement is speaking ? Yes/No Whether approved for reporting ? Yes/No