Baldeo Dutt and another vs Gopalji and another

This appeal arises out of a suit brought u/s 92 of the CPC by the plaintiff appellants against two persons called Gopalji and Basantu. It was alleged in the plaint that a house belonging to one B. Baijnath Das was dedicated by him in 1883 as a dharmasala by a registered deed. The deed of dedication appointed five persons as trustees of the Audichya Brahman community. The trustees originally appointed are dead. The plaintiffs appellants claim to be from among the panchas of the Audichya Brahman community and state that the defendant respondent No. 1 i.e. Gopaiji, who was in charge of the idol of Madho in the dharamsala as a pujari has constituted himself into a constructive trustee and has been misappropriating the income of the trust property. The claim was therefore brought against him for his removal and for a scheme for the future administration of the dharmasala. Basantu was impleaded as a defendant on the allegation that he had purchased the materials of the dedicated house. The claim was resisted on various grounds one of which was the denial of the allegation of the plaintiff that Gopalji was a constructive trustee. The learned Judge held that Gopalji was not a constructive trustee and the suit u/s 92, of the CPC was not maintainable against him.

The plaintiffs have come up in appeal to this Court and contend that there is enough material on the record to show that Gopalji was either a constructive trustee or a trustee de son tort We find on the evidence in the case that the view taken by the learned District Judge is correct. The evidence shows that Gopalji was appointed a ''pujari'' to the idol in the dharmasala and he neither hold himself out as a trustee nor did he do any act right or wrongful which would constitute him a trustee. It seems that no provision was made under the deed of trust for the upkeep and the repair of the house. A large portion of the house fell down for want of repairs. Gopalji, it is true, disposed of same of the materials of that portion of the house which had fallen down to Basantu, but that would not make Gopalji a trustee. He was a servant put in charge of the idol in the dharamsala and any wrongful act done by him would make him liable as a servant and not as a trustee. The plaintiffs misconceived their remedy if any. The appeal therefore fails and is dismissed with costs including fees in this Court on the higher scale.