Full Judgment Text
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PETITIONER:
ABDUL KARIM KHAN AND ORS.
Vs.
RESPONDENT:
MUNICIPAL COMMITTEE, RAIPUR
DATE OF JUDGMENT:
08/03/1965
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
BENCH:
GAJENDRAGADKAR, P.B. (CJ)
DAYAL, RAGHUBAR
RAMASWAMI, V.
CITATION:
1965 AIR 1744 1965 SCR (3) 300
ACT:
Madhya Pradesh Public Trusts Act (30 of 1951)--Entry by
Registrar that property belongs to Public trust--if
conclusive against real owner.
HEADNOTE:
The first appellant, who was the Mutawalli of a public
trust, filed a representative suit for an injunction
restraining the respondent from committing acts of
encroachment on the suit property, on the ground that the
property was that of the trust and had been so registered by
the Registrar of Public Trusts, under the Madhya Pradesh
Public Trusts Act, 1951. The suit was dismissed by the trial
court and also on appeal.
In their appeal to the Supreme Court the appellants
contended that, since the respondent did not avail itself of
the ,right to file a suit within the specified time, the
order passed by the Registrar must be held to be final and
conclusive against the respondent.
HELD: The fact that the property in suit was added to
the list of the properties belonging to the trust, could not
affect the respondent’s title to it. [306 A-B]
The enquiry which the Act contemplates is an enquiry
into the question as to whether a trust is public or private
and does not take within its sweep questions as to whether a
property belongs to a private individual and is not the
subject matter of any trust at all. The only persons who are
required to file their objections in proceedings before the
Registrar are persons interested in the public trust--not
persons who dispute the existence of the trust or who
challenge the allegation that any property belongs to the
said trust. Inasmuch as the respondent was not a party to
the proceedings and could not have filed any objections in
the proceedings the respondent was not bound to file an
appeal under s. 4(5) of the Act or a suit under s. 8(1),
challenging order of the Registrar. Therefore, the finality
given to the finding of the Registrar could not be availed
of by the appellant as against the respondent. [304 G; 305
A-B, D-E]
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JUDGMENT:
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 871 of
1962.
Appeal by special leave from the judgment and decree
dated August 13, 1959, of the Madhya Pradesh High Court in
Second Appeal No. 294 of 1959.
S.P. Sinha and M. 1. Khowaja, for the appellant.
S.T. Desai and A. G. Ratnaparkhi, for the respondent.
The Judgment of the Court was delivered by
Gajendragadkar. C.J. This appeal arises from a suit filed
by the appellants who are the representatives of residents
of Nayapara Ward in particular and of the Muslim community
of Raipur in general, in which they claimed an injunction
restraining the respondent, Municipal Committee of Raipur,
from committing acts of encroachment on their rights and the
rights of
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the Muslim community in holding Urs and other ceremonies on
the plot in suit. It appears that at Raipur, there is a
piece of land called "Fazle Karim’s Bada" Khasra No. 649
measuring 4.62 acres. Inside this Bada, there are three or
four Municipal Schools. The office of the Electric Power
House is also located in one corner of the land. Behind the
School, there is a Pakka platform known as "Syed Baba’s
Mazar". Near the Electric Power House, there is a raised
earth platform on which there is a flag. This flag is
called "Madar Sahib’s Jhanda". Surrounding this land. there
is a brick wall which was made by the respondent several
years past. According to the plaint, Urs function is held
every year in front of Syed Baba’s Mazar for the last
several years. On or about the 22nd October, 1956, the
employees of the respondent started digging foundation at
the places A, B, C and D shown on the map attached to the
plaint. These digging operations were commenced under the
directions of the respondent. because the respondent
intended to construct another school building on the plot.
The appellants then served a notice on the respondent to
desist from carrying on the digging operations on the ground
that the property on which the said operations were being
carried out, was a part of the wakf property. When the
respondent did not comply with the requisition contained in
the said notice, the present suit was filed by the
appellants on October 29, 1956. This suit has been flied
under O.1 r. 8 of the Code of Civil Procedure.
The case of the appellants is that the plot of land in suit
was old Kabrasthan known as "Chuchu’s Takia", and is a
permanent inalienable wakf property. On this plot are tombs
of renowned saints like Syed Baba. and Madar Sahib’s Jhanda.
On a part of the plot. every year Urs and other religious
functions are performed. In fact, the land has been
registered under the Madhya Pradesh Public Trusts Act (No.
30 of 1951) (hereinafter called the Act) as trust property;
as such, the respondent can claim no right or title to the
said land. That is the basis on which the appellants claimed
injunction against the respondent.
The respondent disputed this claim. It was urged in the
written statement filed by the respondent that the land was
never and could never be wakf property. There was no tomb on
the land. There are only two so-called tombs. but they have
no significance. The Urs is of very recent origin and it is
allowed to be held with the licence of the respondent. The
plot originally, belonged to private persons and had been
acquired by the Government in land acquisition
proceedings in 1910-11. The respondent got the said land
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from the Government in 1922. In 1932-33. the Deputy
Commissioner fixed rent of the land which is being paid by
the respondent eversince. On this land, the respondent has
constructed some schools, and a part of the land which is
lying vacant is allowed to be used by the people of the
neighbourhood for traffic. The respondent thus has full
right to
302
construct on its own plot of land. The representative
character of the appellants was disputed by the respondent
and their right to file the present suit was challenged.
On these pleadings, several. issues were framed by the
learned trial Judge. They covered the title of appellants,
the title of the respondent, and the right of the appellants
to file the suit. The issue with which we are concerned in
the present appeal related to the registration of the plot
in the register kept under the relevant provisions of the
Act and its effect. The appellants’ contention was that the
said registration was conclusive against the respondent and
in favour of the appellants’ claim. This contention was
rejected by the trial Judge, with the result that the
appellants’ suit was dismissed. With the findings recorded
by the learned trial Judge on the other issues we are not
concerned in the present appeal.
The matter then went in appeal. and the appellate Court
confirmed the conclusions recorded by the trial Court and
dismissed the appeal. The appellants challenged the
correctness of the said appellate decree by preferring a
second appeal in the High Court of Madhya Pradesh. but the
second appeal also failed. and that has brought the
appellants to this Court by special leave. Thus. it would be
noticed that the appellants have failed on the merits of
their claim in all the courts below. and the technical point
raised by them that the registration of the plot under the
relevant provisions of the Act concluded the matter. has
also been rejected. It is this last point which has been
urged before us by Mr. Sinha on behalf of the appellants.
Before we deal with this point. however, it would be
relevant to mention how the property came to be entered in
the register kept under the relevant provisions of the Act.
The record shows that the Masjid Nayapara. Raipur had been
entered in the register as a public trust on June 25. 1954
in Case No. 23XXXiii/7 of 1952-53. certain properties were
entered in the said register in respect of this trust. In
1956. Abdul Karim. Mutawali Masjid Naypara Raipur
applied to the SubDivisional Officer. Raipur alleging
that the property now in suit also belonged to the public
trust and should be included amongst its properties. On
this application, public notice was issued calling upon
persons interested in the property to show cause why it
should not be added to the properties of the wakf. No
objection was. however. received and on October 23. 1956.
the Sub-Divisional Officer reported that the poperty be
shown against the trust. The said report was sanctioned by
the Registrar. Public Trusts on April 22. 1957. That is how
the property came to be registered as belonging to the
public trust. and it is on this entry that the whole
argument of the appellants is based.
In considering the validity of the contention raised by
Mr. Sinha before us. it is necessary to examine broadly the
scheme
303
of the Act and the material provisions on which Mr. Sinha
relies. The Act was passed in 1951 to regulate and to
make better provision for the administration of public
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religious and charitable trusts in the State of Madhya
Pradesh. Section 2(4) of the Act defines a "public trust",
and s. 2(8) defines a "wakf". ’Working trustee’ is defined
by s. 2(9). Section 3(1) provides that the Deputy
Commissioner shall be the Registrar of public trusts in
respect of every public trust; and s. 3(2) imposes on the
Registrar the obligation to maintain a register of public
trusts, and such other books and registers and in such form
as may be prescribed. Section 4(1) deals with the
registration of public trusts and in requires that within
three months from the date on which the said section comes
into force in any area or from the date on which a public
trust is created, whichever is later, the working trustee of
every public trust shall apply to the Registrar having
jurisdiction for the registration of the public trust.
Section 4(3) lays down the particulars which have to be
stated by the application which is required to be made under
s. 4(1). All these particulars are in relation to the
nature of the trust, its properties, the mode of succession
to the office of the trustees, and other allied matters.
Section 4(4) empowers the Registrar to decide the merits
of the application, while s. 4(5) provides for an appeal
against his decision which is required to be filed within
30 days of the order. Mr. Sinha relies on a specific
provision contained in s. 4(5) which says that subject
to the decision in such appeal. the order of the Registrar
under sub-section (4) shall be final. Section 4(6) requires
the signing and verification of the application in the
manner laid down in the code of Civil Procedure for signing
and verifying plaints.
That takes us to s. 5 which deals with the enquiry to
be held by the Registrar on the application made before him
under s. 4(1). Eight points are set down under s. 5(1) which
the Registrar has to consider. Section 5(2) lays down that
the Registrar shall give in the prescribed manner public
notice of the inquiry proposed to be made under sub-section
(1) and invite all persons interested in the public trust
under inquiry to prefer objections, if any, in respect of
such trust. Under s. 6, the Registrar has to make his
findings on the point specified by s. 5(1); and under s. 7,
the Registrar causes entries to be made in the Register in
accordance with his findings. Section 7(2) naturally lays
down that the entries made under s. 7(1) shall be final and
conclusive. Section 8(1) allows a civil suit to be filed
against the findings of the Registrar within six months from
the date of the publication of the notice under s. 7(2);
such a suit can be filed by a working trustee or a person
having interest in a public trust or any property found to
be trust property. Section 9 permits applications to be made
for change in the entries recorded in the register. It will
be recalled that the application which was made in 1956 by
Abdul Karim was under the provisions of s. 9(1). If an
application is made for change in
304
the entries as, far instance, for adding to the list of
properties belonging to the trust, a proceeding has to be
taken for making the said change and this is prescribed by
s. 9(2). Section 9(3) makes the provisions of s. 8
applicable to any finding under s. 9 as they would apply to
a finding under s. 6. These provisions are contained in
Chapter II of the Act. Chapter III deals with the management
of trust property; Ch. IV with the problem of audit; Ch. V
with control; and Ch. VI contains miscellaneous provisions,
including s. 35 which confers the rule-making power on the
State Government. That, broadly stated, is the nature of the
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scheme of the Act and the material provisions which fall to
be considered in the present appeal.
Mr. Sinha relies on the fact that under s. 4(5) of the
Act, the decision of the Registrar is made final, subject to
the appellate decision, if any; and he also refers to the
right of instituting a suit reserved by s. 8. His argument
is that if any person who claims interest in the property
which is alleged to be trust property fails to satisfy the
Registrar about his claim, he can file a suit under s. 8(1).
Section 8(1) allows a suit to be filed, subject to the
conditions prescribed by it, and the right to file such a
suit is given to a working trustee, or a person having
interest in a public trust or any property found to be trust
property. The respondent is interested in the property in
suit which is found to be trust property, and since it did
not avail itself of the right to file a suit within the
specified time, the order passed by the Registrar must be
held to be final and conclusive against its claim. If
finality does not attach to such an order even after six
months have expired within the meaning of s. 8(1), then the
provision contained in s. 4(5) will serve no purpose
whatever. That is the manner in which Mr. Sinha has
presented his case before us.
We are not impressed by this argument. In testing the
validity of this argument, we must bear in mind the
important fact that the Act is concerned with the
registration of public, religious and charitable trusts in
the State of Madhya Pradesh, and the enquiry which its
relevant provisions contemplate is an enquiry into the
question as to whether the trust in question is public or
private. The enquiry permitted by the said provisions does
not take within its sweep questions as to whether the
property belongs to a private individual and is not the
subject matter of any trust at all. It cannot be ignored
that the Registrar who, no doubt, is given the powers of a
civil court under s. 28 of the Act, holds a kind of summary
enquiry and the points which can fall within his
jurisdiction are indicated by clauses (i) to (x) of s. 4(3).
Therefore, prima facie. it appears unreasonable to suggest
that contested questions of title, such as those which have
arisen in the present case, can be said to fall within the
enquiry which the Registrar is authorised to hold under s. 5
of the Act.
Besides, it is significant that the only persons who are
required to file their objections in response to a notice
issued by the
305
Registrar on receiving an application made under s. 4(1),
are persons interested in the public trust--not persons who
dispute the existence of the trust or who challenge the
allegation that any property belongs to the said trust. It
is only persons interested in the public trust, such as
beneficiaries or others who claim a right to manage the
trust, who can file objections, and it is objections of this
character proceeding from persons belonging to this limited
class that fall to be considered by the Registrar. It cannot
be said that the respondent falls within this class; and so,
it would be idle to contend that it was the duty of the
respondent to have filed objections under s. 3(2).
It is true, s. 8(1) permits a suit to be filed by a
person having interest in the public trust or any preperty
found to be trust property. The interest to which this
section refers must be read in the light of s. 5(2)to be the
interest of a beneficiary or the interest of a person who
claims the right to maintain the trust or any other interest
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of a similar character. It is not the interest which is
adverse to the trust set up by a party who does not claim
any relation with the trust at all. That is why we think the
finality on which Mr. Sinha’s argument is based cannot avail
him against the respondent inasmuch the respondent was not a
party to the proceedings and could not have filed any
objections in the said proceedings.
Then again, the right to file a suit to which s. 8(1)
refers is given to persons who are aggrieved by any finding
of the Registrar. Having regard to the fact that the
proceedings before the Registrar are in the nature of
proceedings before a civil court, it would be illogical to
hold that the respondent who was not a party to the
proceedings can be said to be aggrieved by the findings of
the Registrar. The normal judicial concept of a person
aggrieved by any order necessarily postulates that the said
person must be a party to the proceedings in which the order
was passed and by which he feels aggrieved. It is
unnecessary to emphasise that it would be plainly
unreasonable to assume that though a person is not a party
to the proceedings and cannot participate in them by way of
filing objections, he would still be bound to file a suit
within the period prescribed by s. 8(1) if the property in
which he claims an exclusive title is held by the Registrar
to belong to a public trust.
Similarly, the right to prefer an appeal against the
Registrar’s order prescribed by s. 4(5) necessarily implies
that the person must be a party to the proceedings before
the Registrar; otherwise how would he know about the order?
Like s. 8(1), s. 4(5) also seems to be confined in its
operation to persons who are before the Registrar, or who
could have appeared before the Registrar under s. 5(2).
The whole scheme is clear, the Registrar enquires into
the question as to whether a trust is private or public,
306
and deals with the points specifically enumerated by s.
4(3). Therefore, we have no hesitation in holding that the
courts below were right in coming to the conclusion that the
fact that the property now in suit was added to the list of
properties belonging to the wakf, cannot affect the
respondent’s title to it. On the merits, all the courts
below have rejected the appellants’ case and have upheld the
pleas raised by the respondent in defence.
The result is, the appeal fails and is dismissed with costs.
Appeal dismissed.
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