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Judgment
Sibghat Ullah Khan, J.—Heard learned counsel for the appellant, learned counsel for respondents No. 1 and 2 and learned counsel for respondent No. 3. This second appeal was initially dismissed for want of prosecution on 26.5.2006. Thereafter restoration application was filed which was dismissed on 15.3.2010 which order was set aside by the Supreme Court through judgment dated 5.8.2011 given in Civil Appeal No. 6383 of 2011. Supreme Court restored the appeal and directed the High Court to decide the same expeditiously.
This second appeal arises out of the suit (Original Suit No. 11 of 1965) in which original appellant since deceased and survived by legal representatives was defendant. The following were plaintiffs:
(1) Krishna Avtar, S/o Lala Nanhey Mal.
Resident of Barhapur.
Secretary, Arya Samaj, Barhapur, Post Barhapur District Bijnor (Added subsequently as plaintiff No. 2 in the suit/respondent No. 1 in this appeal).
(2) Shri Fakir Chandra Arya Uchchatar Madhyamik Vidyalaya, Barhapur, District Bijnor, through its Manager, Shri Krishna Avtar, Resident of Village and Post Barhapur, District Bijnor (Added subsequently as plaintiff No. 3 in the suit/respondent No. 2 in this appeal).
(3) Arya Pratinidhi Sabha, U.P., Lucknow, through Pt. Prakash Vir Shastri, President, resident of 5, Meera Bai Park, Lucknow (Original sole plaintiff/respondent No. 3 in this appeal).
Relief claimed was for possession. The suit was dismissed by the trial court but decreed by the lower appellate court. Total area of the immovable property in dispute is 225 sq. yard.
In this second appeal appellant and respondent Nos. 1 and 2 (plaintiffs No. 2 and 3) entered into a compromise and it was agreed that appellant would surrender 141 sq. yard of land to respondent Nos. 1 and 2 and retain only an area of 84 sq. yard. A joint affidavit alongwith application dated 8.1.2012 was filed. The affidavit was of substituted appellant and of Sanjeev Kumar. In the joint affidavit in para 8 it was stated that a compromise deed had also been executed between the parties on 26.11.2011 which was annexed alongwith joint affidavit. That deed is dated 26.11.2011. Alongwith the said deed map has also been given. Sanjeev Kumar is newly elected Manager of respondent No. 2 the Vidyalay. The Application dated 8.1.2012 alongwith joint affidavit has been signed by Shri Tarun Kumar Srivastava, learned counsel for respondent No. 2. Shri Tarun Kumar Srivastava, learned counsel has filed his vakalatnama on 6.1.2012 on behalf of respondent No. 2 Manager of the Institution. However, Shri P.N. Ojha, learned counsel had filed his vakalatnama on behalf of all the three respondents on 4.11.2011. Respondent No. 2 in the vakalatnama was described as Fakir Chandra Arya Uchchatar Madhyamik Vidyalaya. through its Manager Barhapur District Bijnor however the name of the Manager is not mentioned and it is very difficult to decipher his name from the signature. In the written arguments filed by Shri P.N. Ojha, learned counsel, in para 3 it has been stated that unless respondent No. 2 withdrew his vakalatnama which he had given in favour of Shri P.N. Ojha, he could not authorise Shri Tarun Kumar Srivastava to file the vakalatnama. From this it appears that Shri P.N. Ojha, learned counsel is not disputing that the current Manager of the School has authorised Shri Tarun Kumar Srivastava to appear on his behalf and the compromise entered into by Sanjeev Kumar claiming himself to be Manager of Committee of Management of the College has also not been denied.
Initially suit was filed by respondent No. 3 alone. It is stated that plaintiff No. 1 is a registered body and all the Arya Samaj including plaintiff No. 2 respondent No. 2 of State of U.P. are affiliated and subordinate to it and the Sabha serves the purpose of all Arya Samaj including plaintiff No. 2.
One Chetan Swaroop in the year 1956 had donated a large area of land including the property in dispute initially to Arya Samaj, Barhapur plaintiff No. 2. However, it was provided in the donation/gift deed that school by the name of Fakir Chandra Arya Uchchatar Madhyamik Vidyalaya should be established and thereafter the land should be utilised for the purposes of the said school. When suit was filed in the year 1968 (O.S. No. 11 of 1968) college in question was not in existence. It came into existence in 1970. Thereafter it was impleaded as plaintiff No. 3.
In view of this I am of the opinion that after coming into existence of the college, according to the donation/gift deed, it is only the Committee of Management of the College/its constituent society which is competent to deal with the gifted property. It is for this reason that plaintiff No. 1, the Sabha (umbrella organisation) was made only a proforma respondent in the appeal filed before the lower appellate court after dismissal of the suit by the trial court. Only plaintiff Nos. 2 and 3 preferred the appeal.
Accordingly, I am of the view that Manager of Committee of Management of the College is competent to deal with the property in any legal manner and after coming into existence of the College the Arya Pratinidhi Sabha or Arya Samaj of the town in question ceased to have any concern with the property.
The second argument of Shri P.N. Ojha, learned counsel was that compromise was directly hit by the provisions of U.P. Educational Institutions (Prevention of Dissipation of Assets) Act, 1974.
In my opinion the compromise does not amount to dissipation. Litigation is going on since 1968. Plaintiffs also lost from the trial court. Under the agreement major part of the property is being surrendered by the defendant respondent No. 1 to the college. No one can say that what will be the fate of this appeal if it is heard on merit and decided. Thereafter it may go to the Supreme Court. Even if plaintiffs ultimately win execution proceedings will take lot of time. Accordingly, if in view of all these possibilities and the existing situation the Manager of the College decides to settle the dispute by taking major part of land and leaving a small portion thereof then it can neither be unreasonable nor it can amount to dissipation of asset of societies. Accordingly, second appeal is disposed of in terms of the compromise annexed alongwith joint affidavit filed alongwith application dated 8.1.2012. Said application is allowed. Second appeal is disposed of/decided in terms thereof. The compromise annexed alongwith joint affidavit including the map shall form part of the decree.