P L D 1967 Lahore 915 (PLP)

(d) that section 36 of Act V of 1912, was a bar to a Civil Court exercising jurisdiction in the matter, (e) that a previous suit dismissed on 3rd May 1938 operated as res judicata, and (f) that occupancy rights having been conferred on the answering defendants as far back as 12th July 1931 the suit was barred by limitation,

3. The Collector, Montgomery, did not contest the suit and he was, therefore, proceeded against ex parse.

4. The learned Civil Judge framed the following issues on the 21st of May 1960:‑ (1) Has the suit been correctly instituted in accordance with the provisions of section 92 of the Code of Civil Procedure? (2) Has the suit been instituted in accordance with Order I, rule 8 of the Code of Civil Procedure? (3) Was it incumbent upon the plaintiffs to file a suit for possession. If the answer be in the affirmative, is the amount of Court‑fees paid in accordance with law? (4) Is the Civil Court barred from entertaining the suit?

5. By his order dated the 22nd of May 1961 the learned Civil Judge, IV Class, Montgomery, found all the issues in favour of the plaintiffs and proceeded to frame preliminary issues and issues on merits.

6. Aggrieved by the order of the learned Civil Judge the petitioners have filed the present revision petition. Issue No. l:

7. For the application of section 92 of the Code of Civil Procedure to any case it is necessary that the cause of action should arise from the 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 interest". I have already stated in brief the allegations contained in the plaint and it can hardly be denied that the cause of action for the present suit is alleged to have arisen by the breach of a trust in so far as the contesting defendants are alleged to have appropriated to their own use the property in dispute which is meant for the special purpose of a graveyard.

8. Section 92 of the Code of Civil Procedure is by way of an exception clause to section 9 of the same Code in so far as limits the jurisdiction of a Civil Court to taking cognizance of a certain class of suits mentioned therein only if certain precondi tions have been fulfilled. The precondition is that the Advocate‑ General of the Province should first give his consent in writing for the institution of the suit. The second precondition is that A such a suit can be taken cognizance of only by the principal Civil Court of original jurisdiction, or a Court which has been specially empowered in this behalf by the Provincial Government. Since it places a fetter upon the right of a citizen to move the Civil Courts for the redress of Civil wrongs with respect to property its provisions have to be construed strictly.

9. Section 92 would not be attracted to a suit unless there is an averment in the plaint maintaining that the dispute relates to a trust. It is immaterial whether the trust is express or only, constructive. It is further provided that such trust should not be a private but a public trust and that it should be of a charitable or religious nature. In the instant case the allegation is that the property in dispute appertains to a graveyard. It is conceded that the property belongs to the Government but that since the area under the gaveyard was considered to be insufficient for that purpose the Government had granted 33 acres of land adjoining the graveyard for its extension. It is claimed that the land in dispute is included in these 33 acres of land. In these circumstances it can hardly be refuted that the plaint is based upon the assertion that a constructive trust has been created in respect of the property in dispute and there is no denying the fact that a graveyard is under the Islamic Law recognised as a chari table and religious purpose for which a Wakf can be created.

10. There is no statement in the plaint which could lead to the inference that the graveyard in dispute was earmarked for a certain family only and that the public at large were not permitted to take advantage of it. The conclusion on the first point therefore is that the suit does relate to a trust created for public purposes of a charitable or religious nature.

11. Another requirement of section 92 is that the cause of action should be founded on the allegation of a breach of such a trust. This requirement of law is also fulfilled in the present case because the present suit is based on the grievance that the contesting defendants are utilising the property in dispute for their personal use to the detriment of the purpose for which the trust exists. The suit is, therefore, founded on the alleged breach of a trust.

12. The last requirement for the application of section 92 is that the relief claimed in the suit should be one of those classified in the section itself. A perusal of Paragraph 12 of the plaint) would show that the plaintiffs are seeking a declaratory decree to the effect that the contesting defendants are not the owners, occupancy tenants, managers or Mutwallis of the Khanqah and a permanent injunction has been prayed for as a consequential relief for restraining them from (a) cultivating the area in dispute, (b) constructing houses on it, (c) extracting saltpetre, (d) removing the debris which belongs to the graveyard, and (e) from planting or felling trees. Section 92 deals only with cases in which the prayer is for a decree for (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 o f 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. The reliefs asked for in the plaint do not fall under any one of the heads (a) to (g). The plaint is based on the contention that the contesting defendants are not the Mutwalli, etc. of the trust. It can, therefore, not be for the removal of a trustee. The appointment of a new trustee or the vesting of the property in a trustee is also not one of the reliefs. Similarly it does not fall under any of the heads (d) to (g).

13. We are now left with section 92 (1) (h). This, of course, on a first reading seems to encompass any form of suit within its folds. Such an interpretation would not, however, be in conso nance with the intention of the framers of the law. Section 92 was framed as a clog to wasteful and frivolous litigation against the I trustees and for providing for efficient administration of the trust ‑property by one of the methods provided therein as is clear from clauses (a) to (g). To construe sub‑clause (h) so as to enlarge its) scope would not only be against this intention of the Legislature because if it was so intended it would not have been necessary to classify the relief which was to be covered by section 92 in the section itself. By doing so, the Legislature has made it clear that it had no intention of giving a wide scope to section

92. Even otherwise such an interpretation would be against the principle referred to above that if a law restricts the established jurisdiction of a Court it shall be construed strictly.

14. I am, therefore, clear in my mind that the language of the sub‑clause (h) is to be read ejusdem generis with the provisions of the section which, precede it because there is a mass of legal authority in favour of the proposition that "the general word which follows particular and specific words of the same nature as itself takes its meaning from them and is presumed to be restricted to the same genus as those words." I am fortified in this conclusion, particularly by the pronouncement of the Privy Council in Abdur Rahim and others v. Syed Abu Mahomed Barkat Ali Shah and others (A I R 1928 P C 16) in which Lord Sinha who wrote the Advice observed that‑ "First, because the words `further or other relief' must on general principles of construction be taken to mean relief of the same nature as clauses (a) to (g). Secondly, because such construction would cut down sub stantive rights which existed prior to the enactment of the Code of 1908, and it is unlikely that in a Code regulating procedure the Legislature intended without express words to abolish or extinguish substantive rights of an important nature which admittedly existed at that time."

15. An attempt was made by learned counsel for the petitioner to contend that the allegations in the plaint disclosed that the petitioner was a trustee de son tort in respect of a public trust. This submission holds no water. 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 he remains 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. Such persons could not be said to be trustees de son tort. I, therefore, repel this contention of the learned counsel for the petitioner. Issue No. 2:

15. Learned counsel for the petitioner did not assail the finding of the learned lower Court on this issue and I, therefore, need not go into it. Issue No. 3:

16. The petitioners contend that the suit is bad since there is no prayer for possession although the plaintiffs have clearly alleged in the plaint that they are not in possession of the property in dispute. This objection can be disposed of by the very short answer that a suit for possession can be filed only by,, a person who is entitled to possession and claims to get possession of it. In the present case the property is alleged to be trust property. The plaintiffs do not allege to be the trustees nor have they asked for appointment as trustees. The mere fact that a person is a beneficiary of a trust does not entitle him to ask for possession. The plaintiffs could, therefore, not have claimed possession in the present suit, and 1, therefore, agree with the learned lower Court on the point. The question of Court‑fees contained in the same issue does, therefore, not arise, Issue No. 4:

17. The last submission before me by learned counsel was that the suit was barred by the provisions of section 36 of the Colonization of Government Lands (Punjab) Act, 1912. Section 36 of the Act runs as follows:‑ "Jurisdiction of Civil Court barred as regards matter arising under the Act.‑A Civil Court shall not have‑ jurisdiction in any matter which the Collector is empowered by this Act to dispose, and shall not take cognizance of the manner in which the Pro vincial Government or Collector or any other Revenue Officer exercises any power vested in it or in him by or under this Act." The whole basis of the present suit is that the property in dispute had been included in the area of the graveyard by the Provincial Government. Section 36 excludes the jurisdiction of Civil :Courts over matters which (a) the Collector is empowered by that Act to dispose of and (b) the manner in which power vested in the Government, Collector or Revenue Officer by that Act is exercised. The said Act does not empower any of these authorities to transfer to anybody land belonging to a trust. The Court in this case will have to decide whether the property in dispute is a part of the trust or not. If the Court finds in the affirmative section 36 would have no application. If, however, its answer is in the negative, section 36 would then be a bar to proceeding with the suit any further. The basic jurisdiction of a Civil Court to entertain and decide all suits of a Civil nature cannot be denied and as the Privy Council observed in Secretary of State v. Mask & Company (A I R 1940 P C 105)‑ "The exclusion of jurisdiction of the Civil Courts is not to be readily inferred but that such exclusion must either be explicitly expressed or clearly implied. It is also welt settled that even if jurisdiction is so excluded, the Civil Courts have jurisdiction to examine into cases where the provisions of the Act have not been complied, or the statutory tribunal has not acted in confor mity with the fundamental principles of judicial procedure." In fact, in the present case the very authority of defendant No. 1 to pass an order under the Colonization of Government Lands (Punjab) Act, 1912, is being challenged. Section 36 of that Act is not a bar to such a suit.

18. The petition is, therefore, dismissed. Costs shall be costs in the cause. A. H. Petition dismissed.