P L D 1962 Dacca 643 (PLP)

CHOWDHURY, C. J.‑This appeal is by defendant No.

2. It arises out of a suit filed by the plaintiffs on their own behalf as well as In their representative character under Order I, rule 8 of the Code of Civil Procedure for a permanent injunction restrain ing defendants Nos. I and 2 from erecting any but or structure on the disputes land which is said to be the property belonging to a Hindu religious trust.

2. Plaintiffs' case, shortly stated, is as follows: ‑ The land described in the schedule of the plaint was made a gift of by one Hemendra Narayan Roy Chowdhury of Pirgacha for the purpose of establishing a Dharma‑sava in favour of one Ashutosh Lahiri. who erected buildings and procured all other materials for the purpose by local subscriptions and made a trust of the entire property relinquishing his own interest by a deed of trust in which Jadaveswar Tarkaratna, Raja Janaki Ballav Sen and Armada Prosad Sen were the first trustees. They got possession of the properties and acquired the right as trustees on the basis of the trust deed. Under the rules framed in terms of the trust deed an executive committee was elected and Babu Dina Taran Lahiri was elected Secretary of the committee. In course of time, on account of the non‑existence of those three trustees Bhawani Prosad Lahiri, Ram Prosad Sen and plaintiff No. 1 Bhupendra Marian Chowdhury became trustees, of whom the former two trustees are not in existence and the secretary Dina Taran Lahiri migrated to India by exchanging his property here in Pakistan with those at Hindusthan. As he was not returning to his duties some undesirable people entered into the compound of the Dharma‑sava anti were using the veranda and the courtyard filthily. Defendant No. 1 Abani Nath Pandit (since dead) a relation of Dina Taran Lahiri, who was left with the manage ment of Rangpur Bank owned and managed by Dintaran Lahiri and his co‑sharers, somehow or other got possession of the documents of the Dharma‑sava from his relation Dina Taran Lahiri and illegally assumed the charge of Secretary by manipu lating fictitious committee in a fictitious meeting. Subsequently the said Abaninath, defendant No. 1, in collusion with defen dant No. 2, while making arrangement for constructing a structure in a portion of the Dharma‑sava compound, the Hindus of the locality came to know that Abani Babu was allowing defendant No. .2 to construct structure, they assembled in the Dharma‑sava building on 7‑11‑52 and decided to stop it and in formed the surviving trustee to elect an executive committee. Accordingly a managing committee was reconstituted in a meeting held on 9‑11‑52 when they came to know that Dina Taran Lahiri retired from the secretariship. They further came to know that the said Dina Taran Lahiri managed to nominate, out of some Hindus of the locality who were not even members of the said Dharma‑sava, 15 members to the executive committee of which Abani Babu became the Secretary. He, thereafter, it appears now, called several meetings of the committee in his house " Tarak‑Bhaban " behind the back of the real members of the Dharma‑sava. In the morning of 8‑11‑52 the defendants began to dig earth within the Dharma‑sava compound on both sides of the gate for construction for the use of defendant No. 2 on the basis of some alleged settlement from the said Abaiti Nath Pandit, the defendant No.

1. Plaintiffs Nos. 2 and 3 protested and plaintiff No. 2 informed the police and obtained an injunction against the defendants 'by filing a petition under section 144 of the Code of Criminal Procedure. Thereafter they filed the present suit alleging that Abani Nath Pandit was never a Secretary and had no right, title and possession in the properties of the Dharma‑sava and consequently had no right to make any settle ment with defendant No. 2 with regard to any portion of the Dharma‑sava premises against the interest of the Hindus and the Dharma‑sava and, in fact, no settlement has been made and that what they were trying to do, was in collusion with each other to the detriment of the trust. Therefore, the plaintiffs in the present suit prayed for a permanent injunction restraining the defendants from erecting or constructing any but or structure on any portion of the disputed land which is a religious trust land.

3. The suit was contested by both the defendants by filing two separate written statements though defendant No. 1 died subsequently. Both the written statements are in the same line. The case of the contesting defendants is that in the meeting of the executive committee there was a proposal for allowing con struction of shop‑houses on the road‑side land of the Dharma sava trust property for the purpose of increasing the income and it was decided that it would be done by auction and whoever would pay highest amount would he allowed to construct but to be occupied by him as a tenant and the cost of construction to be repaid out of the rent of that shop-house with a right of renewal. In pursuance of that agreement defendant No. 2 offered Rs. 6,000 to be invested in the construction of the shop houses on the disputed land along the road‑side and therefore, he has acquired a valid title. The defendant also pleaded defect of parties, bar of section 42 of the Specific Relief Act and of section 92 of the Code of Civil Procedure and also pleaded that the plaintiffs had no locus standi to file the suit. But the defendants never disputed the trust character of the disputed property nor denied that the properties appertain to the religious trust but asserted that Abani Nath Pandit was the duly elected Secretary by the properly constituted committee.

4. After filing the suit the plaintiffs also filed an applica tion for temporary injunction during the pendency of the suit. This application for injunction has got a chequered career and we think it necessary for this appeal to state the various stages through which this application had to travel. The trial Court issued a show‑cause notice with an order of ad interim injunction. Cause was shown and it allowed the injunction against the defendant No. 2 but vacated the order of ad‑interim injunction against defendant No.

1. There was an appeal by the plaintiffs against the order vacating the ad‑interim injunction order against defendant No. 1 and also a cross‑objection by defendant No. 2 against the order of injunction passed against him. The lower appellate Court in that injunction matter thought that it was necessary to decide about the existence of a prima facie case, and therefore, vacated the order of injunction even against defendant No 2 and set the case back on remand to the trial Court. The trial Court returned the plaint to the plaintiffs for presentation in a proper Court as it thought that the suit was hit by the provision of section 92 of the Code of Civil Procedure. Against that order there was an appeal. In the appellate Court the plaintiff‑appellants also filed an application for temporary injunction restraining the defendant from erecting any but on the disputed land. In the meantime; as it appears, the defendant constructed a hut. The plaintiffs brought it to the notice of the lower appellate Court at the time of moving for an injunction and also prayed for a mandatory injunction for removing the hut constructed by defendant No. 2 in the mean time. The lower appellate Court set aside the order of the trial Court returning the plaint to the plaintiffs and remanded the case directing the trial Court to entertain the suit and to deter mine the question whether the suit was hit by section 92 of the Code of Civil Procedure at the time of determination of the suit itself. The lower appellate Court also made the order of ad‑interim injunction absolute and granted the prayer for mandatory injunction directing the defendant to remove the huts constructed by him during the intervening period i.e., from when the plaint was returned by the trial Court to the plaintiffs and up to the time when the plaintiffs filed in the appellate Court an application for injunction after filing an appeal against the order of the trial Court returning the plaint. Against this order of ad‑interim injunction and the mandatory injunction the defendant No. 2 moved the High Court in Civil Revision Case No. 324 of 1956 and a Division Bench of this Court passed the following order: ‑ " This Rule was obtained by the defendant No. 2 against the order of the District Judge, Rangpur, dated the 16th March 1956, setting aside the order of the trial Court and restoring a suit in which the plaint was returned by the trial Court. In doing so the appellate Court made the ad‑interim injunction absolute and directed that it would remain in force till the disposal of the suit and the petitioner was directed to remove the temporary huts erected by him after the return of the plaint by the trial Court and before the date of ad‑interim injunction by the appellate Court. It is the latter order directing removal of the temporary huts that has been agitated in the present rule. We have heard the learned Advocates and gone through the rule. It seems to us that the order complained of is in the nature of mandatory injunction. Though the appellate Court is quite competent to pass such an order in exceptional circum stances, in view of the order of the appellate Court sending back the plaint to the trial Court to proceed with the suit in the light of the observations made by the appellate Court, in our opinion, the question of removing the temporary huts should be left open and the present status quo maintained until the suit is finally disposed of by the trial Court, as the trial Court will have the advantage of determining the issue between the parties on more detailed materials than those that were available to the appellate Court." So the Rule was made absolute to the extent as indicated above, by the order dated 9‑7‑56.

5. The trial Court dismissed the suit on various grounds holding that the suit was hit by section 92 of the Code of Civil Procedure as there was no denial that Abani Nath Pandit was the Secretary of the managing committee of the trust properties ; that the defendant No. 2 was a constructive trustee and acquired a valid title in the suit land by virtue of lease Exh. E ; that the suit was hit by section 42 of the Specific Relief Act as admittedly defendant No. 2 was in possession of the disputed land on the basis of the agreement for lease and there was no prayer for recovery of possession as a further relief under section 42 of the Specific Relief Act ; that there was also defect of parties as Dina -Taran Lahiri, who was a necessary party according to the trial Court, was not impleaded as party to the suit ; that on the death of defendant No. 1 Abani Nath Pandit his heirs were not brought on the record and that the suit was not maintainable at the instance of the plaintiffs who were neither trustees nor secretary of the managing committee of the trust property.

6. On appeal the learned District Judge set aside the judgment and decree of the trial Court acid decreed the suit of the plaintiffs with a direction for removal of the huts constructed by defendant No. 2 on the disputed land during the pendency of the suit. Hence this appeal by defendant No. 2.

7. Mr. Islam, the learned Advocate for the appellant, raised several points in support of the appeal. The points as stated by him, are: (1) that the suit being hit by section 42 of the Specific Relief Act as well as by section 92 of the Code of Civil Proce dure, is not maintainable and the lower appellate Court is absolutely wrong in holding otherwise ; (2) that the plaintiff have no locus standi to file the suit and the lower appellate Court is absolutely wrong in holding otherwise ; (3) that the learned District Judge failed to appreciate the scope and went out of the scope of the suit in directing the defendants to remove the but constructed on the suit land before the institution of the suit ; (4) that the suit is bad for defect of parties ; (5) that the lower appellate Court has failed to appreciate the evidentiary value of Exhs. F. 12, F. 13, Exh. B series (Exhs. B 1, B 2, B 3, B 4). Exh. C series (Exhs. C, C 1, C 2), Exh. D. series (Exhs. D D 1, D 2, D 3), Exh. E, Exh. G. and Exh. L and as such arrived at a wrong conclusion ; (6) that the onus lies on the plaintiffs and not on the defendant to prove that Abani was not a trustee nor a secretary and that the resolution authorising Abani to grant lease or to make agreement for lease was not a genuine one as alleged by the plaintiffs and that the plaintiffs have got locus standi to file the suit ; and (7) that the judgment of the lower appellate Court is not a proper judgment of reversal as he did not consider the material evidence, namely, Exhs. 2, 3 and 3 (a), relied on by the trial Court, in coming to a finding contrary to the finding arrived at by the trial Court.

8. Now coming to the first question, whether the suit is hit by section 42 of the Specific Relief Act, it is all along the case of the plaintiffs, and not denied by the defendant, that the disputed property is a Hindu trust property in possession and management of either of the managing committee consisting of Hindus or of the Secretary Dina‑Taran Lahiri. It is also the case of the plaintiffs that on behalf of the trustees or on behalf of the beneficiaries, Dina‑Taran Lahiri was in possession of the property; but as he left Pakistan his relation Abani Nath Pandit taking advantage of his relationship got possession of the docu ments in connection with the trust property and assumed the management of the property as a self‑imposed secretary illegally and without any authority ; that Abani Nath Pandit in collusion with defendant No. 2, who is a Muslim refugee from up‑country, on the plea of an agreement for lease, allowed defendant No. 2 to construct huts on the disputed land ; and that Abani, who is neither a trustee nor a secretary, is not entitled to make any arrangement for transfer of any portion of the trust property which is inalienable under the trust deed. As the defendants were trying to construct structure or but on the disputed plot of land the plaintiffs asked for a permanent injunction restrain ing the defendants from constructing any but or structure on the trust property or any portion thereof. Nowhere in the plaint the plaintiffs have admitted the possession of defendant No. 2 or of defendant No. 1 Abani Nath Pandit or their right to possess. Therefore, there is no scope for other relief as contemplated under section 42 of the Specific Relief Act and the scope of the suit is to be determined with reference to the allega tions in the plaint and not with reference to the allegation in the written statements.

9. It is no doubt true that Mr. Islam, the learned Advocate for the appellant, very strongly relied on the recital in the order of the District Judge dated 2‑2‑57 in Other Appeal No. 134 of 1956 which runs thus: " The ad‑interim injunction was issued upon the defendant- respondent to maintain the status quo till the hearing of this appeal. It is admitted by the learned pleader for the appellant that after the decree and judgment of the learned lower Court the defendant, did not raise any new structure but he has been using the old structures which he constructed before the suit and as the learned Advocate for the respondent also admits that his client the defendant‑respondent would not raise any new structure during the pendency of the appeal ad‑interim restraint order be made absolute . . . . . ." The words " before the suit ", underlined by me, in the order quoted above are the words on which Mr. Islam mostly relied. It is apparently a mistake in view of the order of the High Court in the revision case, as already quoted‑in the earlier part of this judgment, which clearly shows that the but was constructed dur ing the period between the returning of the plaint by the trial Court and the filing of the appeal against the order of the trial Court returning the plaint to the lower appellate Court by the plaintiffs who obtained an injunction order from the lower appellate Court against the defendant restraining him from constructing any but or structure on the disputed land. On the basis of this, the learned Advocate for the appellant advanced an argument that the suit without a prayer for recovery of possession of the land, admittedly in possession of the defendant, is not maintainable under section 42 of the Specific Relief Act and in support of this contention he relied on the case of Haji Yar Ali Khan Chowdhury v. Mobarak Ali Chowdhury and others ((1955) 7 D L R 691) to the decision of which I am also a party. But the facts and circumstances of that case are quite different from those of the present one and the principle enunciated therein has got no application to the facts of the present case.

10. The learned Advocate for the appellant very strongly supported his contention that the suit is hit by section 92 of the Code of Civil Procedure as the relief claimed in the suit, though does not come not directly under any of the clauses (a) to (g) of section 92, comes under clause (h) of that section " granting such further or other relief as the nature of the case may require ". His contention is that the effect of the decree in this suit would be the declaration that Abani Nath Pandit was not the secretary of the trust property and the defendant No. 2 was also not the constructive trustee and, therefore, it comes under section 92 of the Civil Procedure Code. We are unable to accept this contention as sound. The relief sought in this suit is a permanent injunction restraining the defendants from construct ing any structure on the trust property described in the schedule of the plaint. Of course, when deciding the question whether temporary injunction should be granted or not, the Court has to look into the question whether the trust property is alienable under the deed of trust and whether Abani Nath Pandit has got the power to transfer it and whether, in fact, there has been any transfer of defendant No. 2 or not. The learned District Judge at page 43 of the paper book held: " From the Trust Deed Exh. 1, it appears that on no property of the Dharma‑Sava incumbrance can be created and though there is, a term in the Trust Deed that improvement of the Dharma -Sava should be made, in my opinion improvement does not mean pecuniary gain. On the other hand, it means improve ment of the object for which trust was created i.e., for improve ment of the existing buildings, " establishment of press, print ing of Hindu scriptures and religious magazines etc. It has been stated in the Trust Deed Exh. 1, that no acts detrimental to the object of the trust can be done and P. W. 2, Subodh Chandra Ray and others stated that the suit land was used during ceremony of Durga Puja and other religious rites, congregation of Hindu ladies etc." Further the learned District Judge at page 44 has definitely found that the deed of agreement Exh. E is an unregistered document and that it is an agreement creating a lease for exceeding one year and reserving annual rent and if not having been registered it is not admissible in evidence and it did not create any interest in favour of defendant No. 2 and that it did not affect the disputed land. It is not disputed that Abani Pandit as a secretary is not entitled to make any transfer of any trust property or any portion thereof. It is the case of defendant No. 1 that he was authorised by a resolution to make the arrangement he has made with defendant No. 2 and in order to establish that fact he relied on Exh. F series showing that there was a meeting for the election of the managing committee and Abani Nath Pandit was elected as the secretary. Exh. D. series are the rules of the Dharma‑Sava under which those meet ings were held. But the learned District Judge found that these Exh. F series are fictitious documents and they have not been legally proved except the signature of the writer; that Exh. G which is said to be a copy signed by Dinataran Lahiri, have not been proved by producing the original and that there is no certificate to the effect that it has been compared with the original and this Exh. G clearly contravenes some of the important terms of the registered trust deed according to which none but the members of the Dharma‑sava can be elected members of the executive committee and of the Dharma‑sava. At page 41 of the paper book the learned District Judge held: " From the resolutions Exh. F series it appears that all along Dinataran Lahiri was mentioned as Secretary, so also Abani Pandit and it was on 26‑10‑52 that a resolution appeared to have been passed stating inclusion of the name of Abani Pandit as Secretary to the Trust Board and the proceeding of that meeting appears to be a suspicious one. It appears that a separate paper was pasted in the Resolution Book and this resolution cannot be relied upon." We have ourselves examined that resolution dated 26‑10‑52 in the presence of the learned Advocates of both the parties and it is quite clear that it is distinctly in a separate sheet of paper pasted up in the said Resolution Book of the Dharma‑sava. All these clearly show that Abani Pandit was never elected as the Secretary nor was he authorised to make any transfer of any portion of the property of the Dharma‑sava. At page 42 of the paper book the learned District Judge also held that Abani Nath Pandit was not a trustee of the Dharma‑sava and that he was not elected Secretary of the said Dharma‑sava by any legally con stituted committee and that he has no right to grant any lease or to enter into any agreement for lease with defendant No.

2. These are matters to be decided in determining whether per manent injunction should be granted or not, but that does not mean that the suit is one coming under section 92 of the Code of Civil Procedure. In support of this view reference may be made to the Privy Council case of Abdur Rahim and others v. Syed Abu Mahomed Barkat Ali Shah (since deceased) and others (32 C W N 482), where it has been held by their Lordships of the Privy Council. " Section 92, subsection (2) of the Civil Procedure Code only enacts that suits which pray for any of the reliefs mentioned in subsection (1) must be instituted in accordance with the provisions of that section. It does not mean that all suits founded on any breach of trust for public purposes of a charitable or religious nature, irrespective of the relief sought must be instituted in conformity with the provisions of section

92. The words ` further or other relief ' in clause (h) sub section (1), section 92 mean relief of the same nature as provided for in clauses (a) to (g); they do not mean any relief other than those indicated in clauses (a) to (g) which the circumstances of a particular case may require. In particular they do not cover reliefs against third parties i.e., strangers to the trust."

11. We may also refer, in connection with this point, to the decision of Madras High Court, particularly to the decision of Abdur Rahim, (lately ` Sir') Officiating Chief Jus tice, in the case of Kalyana Venkataramana Ayyangar and another v. Kasturiranga Ayyangar (1 L R 40 Mad. 212), where it has been held that " section 92 of the Civil Procedure Code is not applicable to suits whose object is to establish the right of the temple to property in the hands of strangers alienees from the temple authorities and that the suit was therefore main tainable without such sanction ". Abdur Rahim, C. J., held: " The phrase `vesting any property in trustees' seems to contemplate cases where new trustees have been appointed or other cases of similar nature such as those mentioned in section 26 to 35 of the Trustee, Act of 1893 of England (See Godefroi on Trusts, pages 512, 516). Then, are the reliefs asked for in this suit of the nature contemplated by the general clause (h) `granting such further or other relief as the nature of the case may require'. That clause is not new; it found a place in section 539 of the Code of 1882. And it has always been held that it must be read along with the specified reliefs and the reliefs that can be granted under the general clause should not be of a character different from those expressly mentioned. Therefore, we have got no doubt in our mind that the present suit in no circumstance can come under section 92 of the Code of Civil Procedure.

12. The learned Advocate for the appellant then relying on the case of Abdul Majid and others v. Shaikh Akhtar Nabi and another (39 C W N 1103 (1104)), as well as on the observation of the learned Munsif that defendant No. 2 Md. Siddique, was a constructive trustee, argued that the suit, at least so far as defendant No. 2 is con cerned is one coming under section 92 of the Code of Civil Procedure. In the case reported in 39 C W N 1103, it has been held: " In a suit framed under section 92, C. P. C., the plaintiffs are not entitled to claim against strangers to the trust either there a declaration of title or possession or any other relief, and a suit under section 92 in which a claim for relief against strangers to the trust is added to a claim for relief which the Court is competent to decree in such a suit entails a mis‑joinder both of parties and of causes of action, and unless the plaint is amended cannot be sustained. But a constructive trustee, de jure trustee or trustee de son tort. being covered by section 92, where a stranger to the trust is, according to the averments in the plaint, a constructive trustee, the suit falls within the provisions of section 92, it being a matter of evidence whether the allegations made in the plaint are ultimately made out or not such a suit is maintainable without payment of ad valorem Court‑fee for the declaration of the trust. A stranger who purchases or receives trust property from the trustee with notices of the trust is, in law, a constructive trustee, although he may not, after his purchase, act in the interest of the trust." Relying on this observation of their Lordships in the case reported in 39 C W N 1103, the learned Advocate for the appellant con tends that here the position of defendant No. 2 is not less than a transferee from a trustee and, therefore, he is a constructive trustee. It is a new case never thought of even by defendant No. 2 himself at any stage of the suit. It is not the case even of defendant No. 1 that he was a trustee. He simply claimed that he was a Secretary to the managing committee of the Trust property. We do not understand and it is very difficult for us to understand the argument of the learned Advocate that defendant No. 2 occupies the position of a constructive trustee to bring the case under section 92 of the Code of Civil Procedure, apart from the absence of any allegation in the plaint from which it might be said that the case, according to the pleadings, came under section 92 of the Code of Civil Procedure. In order to support the position of defendant No. 2 as a constructive trustee, the learned Advocate read out a portion of agreement Exh. E. (paragraph 15) where it has been said that in order to look after the trust property or the property of the Dharma‑sava defendant No. 2 was appointed a care‑taker and to facilitate his work he was further given the chance of constructing shop‑houses on either side of the entrance of the Dharma‑sava property. From this recital the learned Advocate contends that he was the owner in possession. We cannot but point out that in that case he is as much an owner as a Durwan appointed to look after the property of another and not more than that and that will not give him the, status of a constructive trustee. As to his right, defendant No. 2 cannot rely on Exh. E. It is actually not a lease but an agreement containing terms and conditions on which he is to advance money for construction and to possess that cons truction after completion as tenant on a monthly rent reserving yearly rent. The District Judge held that it was not admissible in evidence as a lease nor did it confer any right in the trust property.

13. The second contention of the learned Advocate for the appellant is that the plaintiffs have got no locus standi to file the suit. There is not much substance in this contention. The learned District Judge on evidence found that plaintiff No. 1 being a life‑member was a trustee and this finding of fact based on evidence. As regards plaintiff No. 2, the learned District Judge found on evidence that he was a member of the Dharma -sava from 1931 and he was elected Secretary in the month of November 1952, and, therefore, they had every right to file the suit. Apart from the fact that they have filed the suit on their own behalf they have filed the suit in their representative capacity under Order I, rule 8 of the Code of Civil Procedure with the permission of the Court. It is not disputed that the property in dispute is a trust property, a trust for the benefit of the Hindu community and every member of the community is entitled to look after the said trust property.

14. The third point raised by the learned Advocate is that the suit is bad for defect of parties. Defect of parties pleaded is that on the death of Abani Nath Pandit, defendant No. 1, his heirs were not substituted. Neither Abani nor defendant No. 2 nor the plaintiff's attribute any heritable interest in Abani Nath Pandit, who claimed to be the Secretary only according to himself and defendant No. 2, and even according to the plaintiffs he is a person who has illegally assumed the character of Secretary. Therefore, on his death nothing is left to be inherited by his heirs, and, therefore, no question of substitution of his heirs comes in.

15. Next point raised as to defect of parties is as to why Dina Taran Lahiri, who is still alive, was not impleaded as a party to the suit. The trial Court took a very strong exception to it. It is the case of both the parties that Dinataran Lahiri already left Pakistan by exchanging his properties in Pakistan with those in Hindusthan and he resigned the post of secretary-ship. Simply because he is still alive and off and on comes to Pakistan to look after whatever ‑'remains out of his properties does not make him a necessary party to be impleaded in the suit.

16. The fifth point of the learned Advocate is that the learned District Judge has failed to appreciate the evidentiary value of Exhs. F series, B. series, C. series and D. series and Exhs. E, G and L. We have already discussed about Exh. E, which was held by the learned District Judge to be a document not admissible in evidence. The learned District Judge discarded Exh. G. by saying that nobody certified that it was compared with the original one nor the original was produced to prove it nor anybody came forward to prove it except the signature of the writer and it contravenes important provisions of the trust deed. Exh. L. is the written statement filed by defendant No. 1 Abani Nath Pandit. We do not understand how this Written statement can be an exhibit in the case without the person who filed the same and who has not been examined in the case. Defendant No. 1 is dead and Mr. Islam contends that as a statement of dead person this written statement of defendant No. 1 is admissi ble in evidence. We are unable to accept this contention. Unfortunately the learned trial Court has relied on what defendant No. 1 Abani has stated in his written statement as a piece of evidence against the plaintiffs though it has not been proved. As regards Exh. F series, we have already pointed, out that these are all held to be manipulated documents created for the purpose of establishing the appointment of Abani as Secretary to the executive committee of the trust property. Exh. B. series and Exh. C. series are rent receipts and municipal bills. The learned District Judge has pointed out that these do not prove anything and they were produced by the defendant to prove that Abani Nath Pandit paid municipal tax as a Secretary. But the learned District Judge has pointed out that these exhibits do not prove by themselves that Abani was the Secretary. Exhibits D. series are all signatures in the notices of the meeting received by some of the members, but these notices were not proved. These signatures have only been proved and it has been admitted by soma of the members that they have received some notices inviting Them to attend the meeting but subsequently they did not accept any notice of the meeting convened by Abani Nath Pandit. Therefore, it is not correct that the learned District Judge failed to appreciate the evidentiary value. Even if he has failed, that is not a question of law to be agitated here in second appeal as they are not documents of title.

17. The sixth point raised is in respect of the onus. We think, the learned Advocate has totally misconceived what the learned District Judge has said. He has definitely pointed out that there are strong evidence to establish that plaintiff' No. 1 is one of the surviving trustee and plaintiff No. 2 was appointed Secretary and that defendant No. 1 Abani Nath Pandit was never a Secretary nor was he duly elected as Secretary of the managing committee of the trust properties. These are findings of fact and we do not understand how the learned District Judge misplaced the onus.

18. As regards the genuineness of the resolution, the learned District Judge has pointed out that it is written in a separate sheet of paper and pasted up with the Resolution Book as the resolution dated 26‑10‑52 and he discarded it as a suspicious document.

19. As regards the last point, the learned Advocate's contention is that the judgment of the lower appellate Court is not a proper judgment of reversal. The ground is vague as it appears. The learned Advocate, when asked to point out on what point it is not a proper judgment of reversal referred to Exhs. 2 and 3 (a). Exh. 2 has been filed by the plaintiffs. It has been held to be not admissible by the trial Court at pages 9 and 11 of the paper‑book on the objection of the defendant. Now the very same defendant is taking exception that the learned District Judge has not considered this Exh. 2 and, therefore, it is not a proper judgment of reversal. Exh. 3 (a) is the resolution of the general meeting held on 8‑11‑52 in which P. W. 2 was elected as Secretary and in this connection many defects were pointed out to the trial Court, one of them being that some of the members attending the meeting did not pay subscription to enable them to vote in the said election. Therefore, and because of certain other defects in the constitution of the committee, the trial Court could not accept that resolution. Now the learned Advocate for the defendant‑appellant says that this document, also has not been taken into consideration by the learned District Judge in coming to a finding about the appointment of plaintiff No. 2 as Secretary. We are surprised to see that the learned Advocate appearing on behalf of defendant No. 2 is making a grievance of that particularly when the learned District Judge on account of the defendant's own objection, perhaps might not have taken into consideration the resolution Exh. 3 (a) in coming to his finding that the plaintiff No. 2 was the duly elected Secretary of the managing committee of the Dharma‑sava. He based his finding on other evidence on record and he did not refer to Exh. 3 (a).

20. No other point was raised and the points raised have got no substance and, therefore, the appeal must fail.

21. Before we part with the appeal we must point out that the paper‑book filed in this appeal being full of mistakes on material points. We made a grievance of that two months ago and granted the learned Advocate for the appellant time to correct the paper‑book, but it has not been corrected by the 1 earned Advocate who filed the paper‑book, which prolonged the hearing of the appeal.

22. In the circumstances, we dismiss the appeal with costs and assess the hearing fee at 10 gold mohurs. M. R. KHAN, J.‑I agree with my Lord, the Chief Justice. Appeal dismissed.