Full Judgment Text
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7789 OF 2011
Vijay Pullarwar & Ors. …..Appellant(s)
:Versus:
Shri Hanuman Deosthan, a Public Trust
through its Trustees ....Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. This appeal is filed by the original defendants against the
judgment and order of the High Court of Judicature at
Bombay, Nagpur Bench in Second Appeal No.364 of 1990
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decided on 24 October, 2008, whereby the High Court, in the
Signature Not Verified
Digitally signed by
SANJAY KUMAR
Date: 2019.02.21
16:59:25 IST
Reason:
second appeal, restored the decree of possession of the suit
property passed by the trial court against the appellants, by
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setting aside the judgment and decree passed by the District
Court, Nagpur in Regular Civil Appeal No.564 of 1983 dated
st
21 January, 1989.
The respondent No.1, Shri Hanuman Deosthan, is a
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public trust duly registered under the provisions of the
Bombay Public Trusts Act, 1950 (presently known as
Maharashtra Public Trusts Act, 1950) (for short “ ”).
1950 Act
The respondents filed Special Civil Suit No.1127 of 1978 in the
Civil Court, Senior Division, Nagpur, for possession on the
basis of title. It was asserted that one Bansilal S/o Gangadin
Perdeshi Teli, R/o Circle No.3 of Nagpur was the disciple of a
Hindu saint by the name of Haridas Baba Vishv. The said
saint took Samadhi about 70 years back before the institution
of the suit. He had a “Math” situated in Circle No.3 in house
bearing No.878, where his (Haridas Baba) Padukas came to be
installed. It is stated that the said Bansilal was the Chief
Wahiwatdar of the said Math and was looking after the pujas
and utsavas performed in the Math. Before his death, which
occurred in 1944, he had asked his wife, Yashodabai, to look
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after and manage the Math and conduct puja and utsavas
from time to time in his absence and keep the Math property
in good condition from the income of the Math. He had also
told his wife Yashodabai that after his death, she may appoint
a panch committee in the event she was not in a position to
look after the affairs of the Math herself. After 1946,
Yashodabai executed a document and appointed a panch
committee for the proper management of the Math whilst she
remained one of the trustees. That document was registered
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on 23 May, 1946 (Exh.41). She had nominated five persons
as panchas in the panch committee namely, Shri Badal S/o
Giridharilal, Mohanlal Hanuman, Ramjiwan Kaluram,
Nandideep Bhangavandin and Onkar Gandelal Pardeshi.
Amongst them, Badal was to remain as sarpanch. After his
demise, one Chotelal Bhikaji Pardeshi assumed the office of
Sarpanch.
It was further stated that except Ramjiwan Kaluram, all
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the trustees/panchas had expired by the time the suit was
filed. Further, Chotelal Bhikaji Pardeshi, after taking over as
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st
sarpanch, made an application on 31 August, 1953 (Ex.63) to
the appropriate authority for registration as a public trust
under the provisions of the Bombay Public Trust Act. In that
application, the description of the property of the trust was
given as per the schedule to the plaint, which property was
amongst other properties registered as the property of the
public trust. After the provisions of the Bombay Public Trust
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Act, 1950 (Exh.64 dated 13 September, 1961) became
applicable to the Vidarbha region of the State of Maharashtra,
Chotelal got the trust registered under the 1950 Act, bearing
P.T.R. No.A50(N).
4. It is then stated that after the death of Chotelal Bhikaji
Pardeshi, a change report was submitted to the local office of
the public trust at Nagpur which came to be rejected as no
proper succession was documented. Resultantly, the local
persons having interest in the affairs of the Math preferred an
application for framing of a scheme and appointment of
trustees, being application No.71 of 1971. The Deputy Charity
Commissioner, in exercise of powers under Section 50A of the
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1950 Act framed a scheme and appointed five persons as
trustees of Shri Hanuman Deosthan, namely, Bhayyalal
Giridharilal, Kashiram Fakiraji Potbhare, Laxman Zingaraji
Sapate, Navi Shukravari and Narayan Tanbaji Kurkute vide
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order dated 4 April, 1975 (Exh.46). In short, the respondent
asserted that the suit property occupied by the predecessor of
the appellants, namely Wasudeo Pullarwar, was the property
of the presiding deity Shri Hanuman Deosthan and was
managed by the trustees in whom it vested for management.
The occupant, Vasant Pullarwar, had no right, title or interest
in the said house.
5. It is then stated that a notice was issued to defendant
No.2/appellant No.1 (son of defendant No.1, the said Wasudeo
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Pullarwar), dated 4 November, 1977, calling upon him to pay
the rent for the last three years ending October 1977 @
Rs.110/ per month, which rent was recovered by the previous
trustees from the occupants of the suit house. Appellant No.1
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sent a reply on 14 November, 1977, disputing that he was a
tenant or that he was liable to pay the rent to the respondent
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trust. He stated that he was living with his father who was
paying the taxes of the suit house. It appears that the
plaintiffs/respondents then caused to send another notice to
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defendant No.1 Wasudeo Pullarwar dated 12 December,
1977, making a similar demand of rent from him, to which
even he denied his liability to pay and also denied the title of
the plaintiffs/respondents in respect of the suit house
occupied by him. In this backdrop, the respondents filed a suit
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on 17 October, 1978 for possession of the suit house from
the defendants/appellants and for recovery of charges for
occupation of the suit house during the relevant period. The
suit for possession is thus based on title.
6. The appellants contested the suit by filing their written
statement asserting that the plaintiffs/respondents have no
locus to institute the suit; and the suit was not maintainable
due to absence of permission of the Charity Commissioner for
filing suit for possession of immoveable property allegedly
belonging to a public trust. It was denied that Bansilal was the
Wahiwatdar and was looking after the pujas and utsavas
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performed in the Math. It was then contended that the
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document allegedly executed by Smt. Yashodabai on 23 May,
1946 (Exh.41) was a sham and bogus document; and that one
of the panchas Ramjiwan Kaluram, was still alive, for which
reason Chotelal could not claim to be an elected or nominated
Sarpanch. Pertinently, it has been plainly stated in the written
statement that the suit house occupied by the defendants was
not the property shown at the time of registration of Shri
Hanuman Deosthan, a public trust, and also, the same was
not registered as the property of the said trust. The said trust
was registered as a public trust with only two properties
mentioned in schedule I thereof. One of the house properties
in Circle No.3 was House No.55, which has had no causal
connection with the suit house occupied by the
defendants/appellants, bearing House No.878.
7. It is thus denied that the suit house is the property of the
presiding deity of Shri Hanuman Deosthan. It is plainly
asserted by the defendants/appellants that the suit house has
been continuously and uninterruptedly occupied by them for
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over 30 years and the defendant No.1 was looking after and
managing the same, including carrying out repairs and
renovation, performing pujas and utasavas in the suit house
as Wahiwatdar of the property and paying municipal taxes. It
is the case of the appellants that the suit house was the
property of a private trust and it originally belonged to saint
Haridas Baba. Defendant No.1 was in possession of and had
been the occupant of the property for over 30 years before the
institution of the suit, as the Wahiwatdar. The appellants
asserted that the respondent Trust was not the owner of the
suit house and it had no causal connection therewith and in
any case, could not oust the appellants/defendants from the
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suit house under the garb of a scheme framed on 4 April,
1975 by the Deputy Commissioner (Exh.46). Accordingly, the
appellants prayed that the suit ought to be dismissed with
costs.
We may usefully reproduce paragraph 11 of the written
8.
statement which succinctly unveil the case of the appellants
about their right to occupy the “suit house” (i.e. H.No.878 in
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Circle No.3) and to reject the claim of the
plaintiffs/respondents concerning the suit house or having
any causal connection therewith leave apart having acquired
any title in terms of the scheme framed for the public trust.
We deem it necessary to reproduce the whole of
9.
paragraph 11 of the written statement. For, the High Court
has decided the matters in issue against the
defendants/appellants only by referring to subparas (b), (c)
and (d) thereof, as reproduced in paragraph 9 of the impugned
judgment. Paragraph 11 reads thus:
“11. Paragraph
(b) Haridas was a great saint of his times. He died about 55
years ago. He took Samadhi. The suit house (Kuti) belonged
to Haridas which was not a Math, Padukas of Haridas were
not installed by Bansilal.
(c) The suit house was bearing House No.143 and then it
was changed as House No.492 and again this was changed
as House No.104 in Cir. No.3, Nagpur. Owner of the suit
house was Haridas Bairagi, the saint.
(d) In this suit house Padukas of Haridas are installed. The
plaintiff’s allegation that Bansilal was the Chief Wahiwatdar
are denied. The puja and uttaav of the Padukas of Haridas
used to be done by some disciples.
(e) It is emphatically denied that the suit house was or is a
Math. It is denied that Bansilal, yashodabai, Chhotelal,
alleged Sarpanch or the alleged Panch names in the alleged
Deed dated 3.5.1946 or the plaintiffs 1 to 5 were or are
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trustees. These above persons had or have no connection
with the suit house or Padukas. The alleged Deed, if any,
dated 3.5.1946 is null, void, illegal and invalid.
(f) The suit house in circle No.3 at Nagpur and after it
touching to it, is a public tarroad passing northsouth and
its breadth is about 50 feet eastwest, from the suit house.
There are many houses to the north of the suit house upto
Fuwara Chowk, From Chowk, another tarroad which is in
eastwest direction passes to the west and after about 500
feet distance in separate locality of Cir. No.2 is a Hanuman
Temple which has no connection to the suit house in Cir.
No.3 Nagpur. Both are different localities.
(g) It is denied that the defendants occupied the suit house
about 12 years back as tenants from from former trustees or
paid rent, as alleged. It is denied that the defendant
occupied the suit house with any alleged permission of any
alleged former trustee on rent of Rs.110/ per month. The
defendants are occupying the suit house as of right and are
in continuous possession for more than 30 years as stated
earlier openly, exclusively, peacefully peaceably, without
interruption or disturbance from any one or from any alleged
trustees and none of them have been in possession during
such period. The defendant No.1 is about 83 years old.
Defendants are ‘Pullarwar’. The suit house is not property of
the plaintiff nor a public Trust property as is alleged. All the
alleged Public Trust proceedings of whatever nature were
without jurisdiction, null and void, under which the
plaintiffs are trying to lay a claim to the suit house. There
was no house No.55 alleged to the suit house; nor this was
changed as House No.878. the plaintiffs’ alleged claim for the
suit house does not stand in fact or law as contended. In
none of the alleged proceedings the defendants were made
parties, nor noticed.”
In view of the rival pleadings, the Trial Court framed in all 11
issues, which read thus:
“1) Do the plaintiffs prove the title of plaintiff No.1 to the
suit house?
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2) Do they prove that the deft. No.2 was occupying the
same as a tenant?
3) Are the plffs. entitled to the occupation charges at the
rate of Rs.110/p.m.?
4) Whether the Charity Commissioner has declared that
the suit house is trust property?
5) Does the deft. No.1 prove that he is occupying the suit
house for more than 30 years and perfect his title by
adverse Possession?
6) Do the defts. Prove that the house belongs to
Mahadeo Domaji Kuthe?
7) Are the plffs. entitled to the possession?
8) What order and decree?
Additional Issues:
9) Whether the house in suit was a Math?
10) Whether the document dated 3.5.46 is
null and void
11) Whether the proceedings under the Bombay Public
trust Act are without jurisdiction?”
10. Both sides produced documentary as well as oral
evidence in support of their respective stands, which was duly
considered by the Trial Court vide judgment and order dated
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16 November, 1983. The Trial Court accepted the claim of the
plaintiffs/respondents that the “suit house” (i.e. H.No.878)
was the property of the public trust, namely, Shri Hanuman
Deosthan and the management of the property vested in the
said trust. Further, the defendants/appellants had no right to
occupy the suit house despite the Trial Court having found
that they were occupying the same for over 30 years before the
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institution of the suit. On this finding, the Trial Court partly
decreed the suit by directing the defendants/appellants to
hand over vacant possession of the suit house to the
plaintiffs/respondents, while rejecting their claim for
occupation charges. The operative order passed by the Trial
Court reads thus:
“ ORDER
The Plaintiff’s suit is decreed partly with proportionate costs.
The defendants shall deliver vacant possession of the suit
premises to the plaintiff.
The Plaintiffs claim for occupation charges is dismissed.
An inquiry for future mesne profits under order 20, rule 12
Civil Procedure Code shall be carried separately.
Decree be drawn accordingly in terms of the above order.”
11. The appellants being aggrieved, filed Regular Civil Appeal
No.564 of 1983 before the District Court at Nagpur. The
District Court, after reappreciating the oral and documentary
evidence, was pleased to reverse the finding of facts recorded
by the Trial Court and instead, concluded that the “suit
house” (i.e. H.No.878) was not the registered property of Shri
Hanuman Deosthan, a public trust duly registered under the
1950 Act.
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12. The First Appellate Court considered the efficacy of the
oral evidence adduced by the plaintiffs/respondents to
establish its title in the suit house as also the documentary
evidence. As regards the oral evidence, it found that the same
was hopelessly poor and of persons who had no knowledge as
to how Shri Hanuman Deosthan trust was constituted.
Similarly, these persons had no knowledge whatsoever about
saint Haridas Baba whose Padukas had been installed in the
suit house. The person who could have spoken about those
matters, namely Ramjiwan Kaluram, though available at the
relevant time, was not examined as a witness, for reasons best
known to the plaintiffs/respondents. While dissecting the
documentary evidence relied upon by the parties in support of
their claim, the appellate court in paragraphs 10 to 12
observed thus:
“10. Even if for the sake of argument, Exh.41 is
admitted in evidence and presumed that such a
document was executed by Yashodabai, this document
does not support the Plaintiffs. I will point out the help
of other documents to show that this particular
document Exh.41 pertains to the suit property but this
suit property was never treated as property of the
Plaintiff Trust since 1953 till this litigation started.
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st
11.Exh.63 is the certified copy of the application, dated 31
August, 1953 filed by Chhotelal before the Registrar of the
Public Trusts for registration as per order below Exh.42. In
this application Chhotelal had shown two temple and a
house No.374 and a house No.369 of Circle No.2 and one
house No.55 of Circle No.3 as the property of the said trust
and this property was recorded in the register of the property
of the Public Trust maintained under the M.P. Public Trust
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Act. Exh.64 is application dated 13 September, 1961 filed
by Chhotelal for change report. In this also the same
property has been shown as property of the said trust. After
death of Chhotelal an application was made to the Deputy
Charity Commissioner for framing a scheme for the
management of the trust. After holding enquiry the learned
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Deputy Charity Commissioner passed an order, dated 4
April, 1975 framing a scheme Exh.46 is a certified copy of
that order. Annexure A to this order shows the property of
the trust in the register of the Deputy Charity Commissioner.
It means the two houses in Circle No.2 and a house No.55 of
Circle No.3 were the only properties of the trust even in 1975
when the scheme for management of the trust was framed
and when the present trustees were appointed.
12. The Defendants have throughout maintained that the
plaintiff Trust has nothing to do with a suit house bearing
Municipal No.152 situated in Circle No.3. In support of this,
they have produced documents Exhs.56, 57 and 58 which
are the certified copies of the relevant entries in the
assessment register of the Municipal Corporation. I am told
that the document Exh.56 was in more than one page but in
the original record there appears only one page of the
Assessment Register and it is incomplete. Therefore, today
the Defendants have produced another certified copy of the
same record and it is Exh.20. This record goes back to 1910
11. It appears that originally the house of Haridas Bairagi
was given Municipal No.443. It was situated in Circle No.3 In
191415 house number was changed to 492. In 192223 it
was given house No.104. In 1947 to 1950 its house number
was 878. In 195758 it was house No.598 and it continued
to be house No.598 till it was changed to 521 in 197374
and it continued to be house No.152 till the institution of the
present suit. From this record it would be clear that during
1947 to 1950 its house number was 878. Exh.41 the
document purporting to have been executed by Yashodabai
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also shows that the document was executed pertaining the
house No.878 belonging to Haridas Baba. As per this record,
number of this house continued to be 878 till 195758 when
the number was changed to 598, while in 1953 and again in
1961. Chhotelal had shown house No.55 of Circle No.3 as a
property of Hanuman Deosthan. In this suit we are not
concerned with the other properties of Hanuman Deosthan
situated in Circle No.2 Exh.57 and 58 is the record
pertaining house No.55 of Circle No.3. this record shows that
house No.55 of Circle No.3 was the property of temple of
Radhakishna and Ganpati and on behalf of that Temple one
Ramlal Munnalal Halwai was shown to be proprietor. This
record is available from 1947 onwards. This particular
property bears house No.55 from 1947 till 196162. From
this it is clear that the house No.55 of Circle No.3 is
totally different from the suit house which was the
property of Haridas Bairagi. It is fairly conceded before
me by Mr. Ghatpnde that temple of Radhakrishna and
Ganpati may be different institution than the property of
Haridas Baba. In 1952 when for the first time Hanuman
Deosthan was registered as trust on application of
Chhotelal, house No.55 was different from the suit house
which was bearing No.878 at that time. It is conceded
that there is no documentary evidence to establish that
the suit house was the property of the Plaintiff Trust. ”
(emphasis supplied)
The aforesaid view taken by the First Appellate Court
13.
and, in particular, the findings of fact recorded on material
issues came to be reversed by the High Court in the second
appeal, filed by the respondents. Initially, the said Second
Appeal No.364 of 1990, was allowed by the High Court of
Judicature at Bombay at Nagpur, without framing any
substantial question of law, vide judgment and order dated
th
29 March, 2004. That judgment was set aside by this Court
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th
on 17 December, 2004 in SLP (C) No.10181/2004, at the
instance of the defendants/appellants. The parties were
relegated to the High Court for fresh consideration of the
second appeal. The learned Single Judge of the High Court
hearing the remanded appeal adverted to two substantial
questions of law as formulated in paragraph 7 of the
impugned judgment, which read as follows:
"1. Whether the findings recorded by the authorities
under the Bombay Public Trusts Act about the existence
of the trust and the trust property were final and
conclusive and/or whether the appellate Court had
justification to hold that the suit property did not belong
to the trust?
2. Whether the admission of the defendants that the suit
property was originally owned by Haridad Baba and that
they had entered in possession thereof in the capacity of
caretaker of the suit property were binding on the
defendants so as to establish that the property in
question was part of the property originally owned by
Haridas Baba with respect to which the public trust was
created?”
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14. By the impugned judgment and order dated 24 October,
2008, the High Court allowed the second appeal preferred by
the plaintiffs/respondents and restored the decree of
possession passed by the Trial Court. The High Court first
analysed the pleadings and noted that the
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defendants/appellants in no uncertain terms admitted that
saint Haridas Baba is the owner of the suit house and that his
Padukas were installed in the suit house and were worshiped
by his disciples. It then found that it was common ground that
Haridas Baba was the original owner of the suit house and his
disciples were taking care of the Math after his death. The
High Court further noted that Bansilal never claimed to be the
owner of the suit house but only a trustee, who directed Smt.
Yashodabai to appoint a panch committee to look after the
affairs of the Math if need be. The panch committee appointed
by Smt. Yashodabai was nothing but a board of trustees, as
was evident from the document creating the panch committee
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dated 23 May, 1946 (Exh.41).
15. The High Court then noted that the defendants’ witness
DW1 Vijay in his evidence admitted that the ownership of the
suit house was of Haridas Baba and that the
defendants/appellants, along with other family members, were
living therein as disciples of Haridas Baba and did not set up
title in themselves at all. It appears that Haridas Baba, who
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was the owner of the suit house, dedicated the property and
created a private trust, which fact has been admitted by the
defendants/appellants in the written statement. On that basis,
the High Court went on to conclude that the
defendants/appellants admitted that the suit house was a
trust property and therefore, it must be assumed to have been
dedicated by Haridas Baba. After having said this, the High
Court then went on to examine the question as to whether the
suit house was a property belonging to Shri Hanuman
Deosthan, a public trust. While considering this issue, the
High Court took note of the fact that the registered property of
the Hanuman Deosthan public trust did not include the
description of the suit house namely House No.878 in Circle
No.3. The suit house belonging to the public trust was
registered as House No.55 in Circle No.3. The High Court
“assumed” this to be a case of misdescription of the trust
property in the register of the public trust. Accordingly, the
finding of fact recorded by the First Appellate Court on
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material issues came to be reversed by the High Court on the
following reasoning:
“13. We have already seen that defendants do not deny the
description of the suit property. They do not say that they
are in possession of any other property than the suit
property. They admit that suit property was owned by
Haridas. I have already quoted the evidence of D.W.1 Vijay in
verbatim in which he admits that the assessment list Exh.56
is in respect of the suit house. Exh.56 shows that house was
recorded in the name of Haridas. In examinationinchief
Vijay admits that the house number of the suit property is
492. Defendant No.1 had made an application to the
Municipal Council vide Exh.75. He raised an objection to
recording the name of Hanuman Deosthan as owner in the
Municipal records. He claimed that he was the Wahiwatdar
and was paying taxes and also brought to the notice of the
Municipal Council that this house is not entered in the
register of public trust. He also alleges that name of the trust
is changed from Haridas to Hanuman Deosthan and that the
old name be retained. This clearly goes to show that
defendants in fact knew that the suit house belongs to
Hanuman Deosthan Trust. It is registered in the Municipal
Record as such and he wanted that name of the Hanuman
Deosthan be removed and that he was ready to pay the
taxes. All this evidence clearly goes to show that the
defendants know that the suit property is entered in the
name of plaintiff trust and they are claiming possession of
that property alone. With this document there is no manner
of doubt that the suit property is owned by the plaintiff
public trust. Defendants admission must bind them. The
learned Judge of the first appellate Court did not consider
the evidence in proper perspective. He erred in negativing the
claim of plaintiff because the correct description of the suit
property is not given in the trust register. He should have
independently considered if the suit property is owned by
plaintiffs.”
16. The High Court then negatived the preliminary objection
that the entire appeal had abated as the legal representatives
of legal representative Nos. 1 and 2 of the deceased defendant
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No.1 were not brought on record. The High Court took the view
that since the stand of the defendant No.1 was that he was
occupying the suit house only as Wahiwatdar, his rights as
Wahiwatdar ended upon his death. For, the right of
Wahiwatdar could not be claimed as hereditary. The High
Court thus concluded that the appeal filed by the
plaintiffs/respondents could still proceed on the aforesaid
basis. Accordingly, the High Court reversed the decision of the
First Appellate Court and restored the decree passed by the
Trial Court for delivery of possession of the suit house by the
defendants/appellants to the plaintiffs/respondents. This
decision is the subject matter of the challenge in the present
appeal.
17. We have heard Mr. Gagan Sanghi, learned counsel
appearing for the appellants and Mr. D.K. Sinha, learned
counsel appearing for the respondents.
18. The moot question is: whether the High Court exceeded
its jurisdiction under Section 100 of the Code of Civil
Procedure in reversing the judgment and decree passed by the
21
First Appellate Court on the basis of independent findings and
reasons recorded by it, and moreso, not specifically answering
the substantial questions of law formulated for its
consideration. If it were to answer the substantial questions of
law in seriatim , perhaps the conclusion would have been
completely different.
19. Reverting to the first substantial question of law, the
factum of existence of the trust and the trust property is a
matter of enquiry for registration envisaged under Section 19
of the 1950 Act, which reads thus:
“ :
19. Inquiry for registration
On the receipt of an application under section 18, or upon
on application made by any person having interest in a
public trust or on his own motion, the Deputy or Assistant
Charity Commissioner shall make an inquiry in the
prescribed manner for the purpose of ascertaining:
(i)
whether a trust exists and whether such trust is a
public trust ,
(ii) whether any property is the property of such trust ,
(iii) whether the whole or any substantial portion of the
subject matter of the trust is situate within his
jurisdiction,
(iv) the names and addresses of the trustees and manager
of such trust,
(v) the mode of succession to the office of the trustee of
such trust,
(vi) the origin, nature and object of such trust,
(vii) the amount of gross average annual income and
expenditure of such trust, and
(viii) any other particulars as may be prescribed under sub
section 5 of section 18.”
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(emphasis supplied)
20. Clause (i) of Section 19 is about an enquiry of a fact as to
whether a trust exists and whether such trust is a public
trust. Clause (ii) is an enquiry about whether any (stated)
property is the property of such trust. On completion of such
enquiry, the competent authority is required to record its
findings with the reasons therefor, in terms of Section 20 of
the 1950 Act. After complying with the prescribed formalities
by the applicant and upon the findings so recorded during the
enquiry becoming final, the said authority is obliged to make
entries in the register kept for that purpose as per Section
21(1) of the 1950 Act. Such entries become final and
conclusive, subject to any change to be recorded. This is
predicated under Section 21(2) of the 1950 Act. Further,
Section 79 of the same Act may be of some relevance. The
same reads thus:
“79. Decision of property as Public trust property
(1) Any question, whether or not a trust exists and
such trust is a public trust or particular property is the
property of such trust, shall be decided by the Deputy or
Assistant Charity Commissioner on the Charity
Commissioner in appeal as provided by this Act.
(2) The decision of the Deputy or Assistant Charity
Commissioner or the Charity Commissioner in appeal, as
23
the case may be, shall, unless set aside by the decision
of the Court on application or of the High Court in
”
appeal be final and conclusive.
(emphasis supplied)
This Court in Church of North India Vs. Lavajibhai
1
has noted that the 1950 Act
Ratanjibhai and Others
provides for finality and conclusiveness of the order passed by
the Charity Commissioner in Sections 21(2), 22(3), 26, 36,
41(2), 51(4) and 79(2). The Court relying on
Dhulabhai and
2
Others Vs. The State of Madhya Pradesh and Another
expounded that such finality clause would lead to a
conclusion that the civil court’s jurisdiction is excluded if
there is adequate remedy to do what the civil courts would
normally do in a civil suit. The Court also held that the
question as regards existence of a trust is a matter which
squarely falls within the purview of the Act.
21. Furthermore, Section 80 of the 1950 Act posits a bar of
jurisdiction of the civil court to decide or deal with any
1
(2005) 10 SCC 760
2
(1968) 3 SCR 662
24
question which by or under the Act is to be decided or dealt
with under the said Act. Section 80 of 1950 Act, reads thus:
“
80. Bar of jurisdiction :
Save as expressly provided in this Act, no Civil Court shall
have jurisdiction to decide or deal with any question which
is by or under this Act to be decided or dealt with by any
officer or authority under this Act, and in respect of which
the decision or order of such officer or authority has been
made final and conclusive.”
22. Even for filing a suit concerning the public trust, Section
50 of the Act provides as under:
“ 50. Suit by or against or relating to public trusts or
trustees or others
In any case,
(i) where is alleged that there is a breach of a public
trust, negligence, misapplication or misconduct on the
part of a trustee or trustees,
(ii)
where a direction or decree is required to recover
the possession of or to follow a property belonging
or alleged to be belonging to a public trust or the
proceeds thereof or for an account of such property
or proceeds from a trustee, extrustee, alienee,
trespasser or any other person including a person
holding adversely to the public trust but not a
,
tenant or licensee
(iii) Where the direction of the Court is deemed necessary
for the administration of any public trust, or 53
(iv) for any declaration or injunction in favour of or
against a public trust or trustee or trustees or
,
beneficiary thereof
the Charity Commissioner after making such enquiry as he
thinks necessary, or two or more persons having an interest
in case the suit is under sub clauses ( i) to (iii) , or one
25
or more such persons in case the suit is under sub clause
(iv) having obtained the consent in writing of the Charity
Commissioner as provided in section 51 may institute a suit
whether contentious or not in the Court within the local
limits of whose jurisdiction the whole or part of the subject
matter of the trust is situate, to obtain a decree for any of
the following relief’s :
(a) an order for the recovery of the
possession of such property or proceeds
thereof ;
(b) the removal of any trustee or manager;
I the appointment of a new trustee or manager;
(d) vesting any property in a trustee;
(e) a direction for taking accounts and making
certain enquiries;
(f) an order directing the trustees or others to
pay to the trust the loss caused to the same by
their breach of trust, negligence, misapplication,
misconduct or willful default;
(g) a declaration as to what proportion of the
trust property or of the interest therein shall be
allocated to any particular object of the trust;
(h) a direction to apply the trust property or
its income cy pres on the lines of section 56 if
this relief is 54 claimed along with any other
relief mentioned in this section;
( I ) a direction authorising the whole or any part
of the trust property to be let, sold, mortgaged
or exchanged or in any manner alienated on
such terms and conditions as the court may
deem necessary;
(j) the settlement of scheme, or variation or
alteration in a scheme already settled,
(k) an order for amalgamation of two or more
trusts by framing a common scheme for the
same;
(l) an order for winding up of any trust and
applying the funds for other charitable
purposes;
(m) an order for handing over of one trust to the
trustees of some other trust and deregistering
such trust;
26
(n) an order exonerating the trustees from
technical breaches, etc;
(o) an order varying , altering, amending or
superseding any instrument of trust;
(p) declaring or denying any right in favour of
or against, a public trust or trustee or trustees
or beneficiary thereof an issuing injunctions in
appropriate cases; or
(q) granting any other relief as the nature of the
case may require which would be a condition
precedent to or consequential to any of the
aforesaid relief’s or is necessary in the interest
of the trust:
Provided that no suit claiming any of the reliefs
specified in this section shall be instituted in respect of
any public trust, except in conformity with the
provisions thereof ;
Provided further that, the Charity Commissioner may
instead of instituting a suit make an application to the Court
for a variation or alteration in a scheme already settled :
Provided also that, the provisions of this section and other
consequential provisions shall apply to all public trusts,
whether registered or not or exempted from the provisions of
this Act under subsection (4) of section 1.”
(emphasis supplied)
And again Section 51 provides as under:
“ 51. Consent of Charity Commissioner for institution of suit
(1) If the persons having an interest in any public trust
intend to file a suit of the nature specified in section 50, they shall
apply to the Charity Commissioner in writing for his consent. If the
Charity Commissioner after hearing the parties and making such
enquiries (if any) as he thinks fit is satisfied that there is a prima
facie case, he may within a period of six months from the date on
which the application is made, grant or refuse his consent to the
institution of such suit. The order of the Charity Commissioner
27
refusing his consent shall be in writing and shall state the reasons
for the refusal.
(2) If the Charity Commissioner refuses his consent to the
institution of the suit under subsection (1) the persons applying
for such consent may file an appeal to the Division Commissioner
in the manner provided by this Act.
(3) In every suit filed by persons having interest in any trust
under section 50, the Charity Commissioner shall be a necessary
party.
(4) Subject to the decision of the Divisional
Commissioner in appeal under section 71, the decision of the
Charity Commissioner under sub section (1) shall be final and
conclusive. ”
(emphasis supplied)
Indubitably, the present suit is a suit for recovery of
possession of the subject property on the basis of title claimed
therein by the plaintiffs/respondents and being a property of
the trust. However, the procedure envisaged under Sections 50
and 51, obviously, has not been complied with. For, such
permission has not been produced nor adverted to by the
courts below.
23. Be that as it may, as the plaintiffs/respondents have
claimed title in the suit property, that claim could be answered
on the basis of the registration application of the trust, and
schedule I regarding the registered properties of the trust.
Whether the property is a property of the trust and including
28
the question as to whether it should be so recorded as the
property of the trust, is a matter exclusively within the domain
of the Charity Commissioner.
In the present case, the registration application preferred
24.
by Chotelal unambiguously records House No.55 in Circle
No.3 as being used for performing pujas in the temple. The
temple name is mentioned as Shri Hanuman Deosthan. There
is no reference in the application or in schedule I recording
the properties of the stated public trust to include the
“Padukas of Haridas Baba” installed in House No.878 in Circle
No.3. Concededly, no evidence is forthcoming to show that
Hanuman Temple exists in House No.878 in Circle No.3 which
is in possession of the defendants/appellants.
25. Suffice it to observe that the application for registration
st
of the public trust submitted by Chotelal on 31 August, 1953
(Exh.63), the subsequent application for registration
submitted by him under the provisions of the 1950 Act dated
th
13 September, 1961 (Exh.64), the schedule I recording
properties of the plaintiff public trust (Exh.43), the enquiry
29
th
report dated 13 October, 1954 (Exh.42), and the application
for framing of the scheme and the order passed by the Charity
th
Commissioner dated 4 April, 1975 (Exh.46), none of these
document mention about “Padukas of Haridas Baba” installed
in House No.878 or refer to House No.878 in Circle No.3 being
the trust property; but instead, make specific reference
to House No.55 in Circle No.3, which is a completely different
property. Notably, these documents also do not advert to the
rd
document dated 23 May, 1946 (Exh.41), purportedly
executed by Smt. Yashodabai allegedly creating a Panch
Committee in respect of the suit House No.878 in Circle No.3.
The finding of fact recorded by the First Appellate Court
regarding the two properties and, more particularly, analysis
in paragraphs 11 & 12 of its judgment (reproduced in
paragraph No. 12 herein above), have been brushed aside by
the High Court on the specious asumption that it is a case of
misdescription of the property in the official register of public
trust. That, however, was not the case pleaded much less
proved by the plaintiffs/respondents. Such finding recorded by
30
the High Court is a case of manifest error or error apparent, if
not perverse. The High Court could not have disregarded the
registration application and the description of the house
number given in schedule I as the registered property of the
public trust, which is House No.55 in Circle No.3. It was for
the plaintiffs/respondents to plead and prove that House
No.55 shown in schedule I as property of the plaintiff trust is
the same as House No.878 in Circle No.3, which description
has been given in the plaint as the suit house. Having failed to
establish that fact, no fault can be found with the finding
recorded by the First Appellate Court, that Shri Hanuman
Deosthan, a public trust, had no causal connection with
House No.878 in Circle No.3 occupied by the
defendants/appellants. Thus, it must necessarily follow that
the suit for possession (of House No.878 in Circle No.3)
instituted by the plaintiffs/respondents on the basis of title,
was devoid of merits.
We have no hesitation in upholding the finding of fact
26.
recorded by the First Appellate Court that the suit house
31
occupied by the defendants/appellants was recorded in the
Municipal records during 1947 to 1950 as House No.878
belonging to Haridas Baba and that number was changed to
House No.521 in 197374 and converted to House No.152 till
the institution of the present suit. Further, it is clear that
House No.55 in Circle No.3 is entirely a different property.
That has been registered as the trust property of Shri
Hanuman Deosthan public trust, initially at the instance of
Chotelal and then continued to be shown as a registered
property of the plaintiff trust until the institution of the suit.
Such registration by the authorities under the 1950 Act would
bind the plaintiffs/respondents. The plaintiffs/respondents
have not been able to produce any documentary evidence to
establish the fact that the suit house (bearing House No.878 in
Circle No.3, which later on became House No.152 in Circle
No.3 by the time the suit was instituted), was the property of
the plaintiff trust. The concomitant of such a conclusion is to
dismiss the suit.
32
27. It is not necessary for us to dilate on every aspect dealt
with by the First Appellate Court or for that matter, the High
Court, for answering the substantial question of law under
consideration. We affirm the conclusion reached by the First
Appellate Court that the plaintiff trust had failed to produce
any documentary evidence to substantiate the fact that suit
House No.878 in Circle No.3 was the registered property of the
plaintiff trust and that the registered property of the plaintiff
trust bearing House No.55 in Circle No.3, is the same house in
possession of the defendants/appellants. Pertinently, the
latter property was not owned by Haridas Baba but belonged
to one Ramlal Munnalal Halwai, having a temple of
Radhakrishna and Ganpati. Further, the documentary
evidence produced by the plaintiffs/respondents would, at
best, establish the fact that Shri Hanuman Deosthan has been
registered as a public trust and owns the property referred to
in schedule I against its name (i.e. House No.55 in Circle
No.3). Thus, the property registered as belonging to the
plaintiff trust was other than suit house bearing No.878 in
33
Circle No.3. For all these reasons, the First Appellate Court
was justified in answering the principal issue against the
plaintiff trust.
28. That takes us to the second substantial question of law
formulated by the High Court for its consideration. The High
Court has adverted to the relevant portion of the written
statement to conclude that the defendants/appellants had
admitted that the suit property was originally owned by
Haridas Baba and that they were in possession in the capacity
of caretakers only. Indeed, that admission can be discerned
from the written statement of the defendants as well as the
oral evidence of DW1. But that admission does not take the
matter any further. It is not possible to assume on the basis of
that admission that the “suit house” (i.e. House No.878 in
Circle No.3) is the property of the plaintiff trust. No
documentary evidence has been produced by the
plaintiffs/respondents to establish the fact that the suit house
bearing House No.878 in Circle No.3 originally owned by
Haridas Baba was recorded as the property of the plaintiff
34
trust in the official records. The plea taken by the defendants
in the written statement, however, is indicative of the fact that
they (defendants/appellants) were occupying House No.878 in
Circle No.3, which was originally owned by Haridas Baba and
where his Padukas had been installed. The written statement
as well as the oral evidence of defendants/appellants clearly
refute the claim of the plaintiffs/respondents. In that, the
trust named as Shri Hanuman Deosthan has been registered
in reference to some other properties and for performing puja
with the object of maintaining Hanuman Deosthan temple in
House No.55 in Circle No.3. We also find that the High Court
has selectively adverted to portion of the written statement
[subparas (b) to (d) of paragraph 11 thereof] and not to the
other portion of the same paragraph, namely subparas (e) to
(g) (reproduced in paragraph 9 hereinabove) which put across
the stand of the defendants/appellants including that the
plaintiff trust has no causal connection with the suit house
bearing No.878 in Circle No.3.
35
29. Needless to observe that the plaintiffs/respondents were
primarily obliged to establish their title in the suit house
bearing No.878 in Circle No.3 where the Padukas of Saint
Haridas Baba have been installed, as being the property of the
plaintiff trust. The plaintiffs must succeed or fail on the title
they establish; and if they fail to do so, they must fail to get
the relief of possession irrespective of title of the defendant in
3
the suit property (See and
Brahma Nand Puri Vs. Naki Puri
Bajaranglal Shivchandrai Ruia Vs. Shashikant N. Ruia
4
). In the present case, no tangible evidence regarding
and Ors.
title of plaintiff trust in the suit house (House No.878 in Circle
No.3) is forthcoming.
30. The High Court has also adverted to the socalled
admission given by DW1 Vijay, noted in paragraph No.12 of
the impugned judgment. In our opinion, the High Court has
completely misread the said admission. Inasmuch as, all it
says is that the house number had changed every four years
after revaluation. Further, the suit house is in Circle No.3.
3
(1965) 2 SCR 233
4
(2004) 5 SCC 272
36
This is spoken by the witness (DW1), in response to the
question posed to him about the change of Circle. He then
admits that since 1910, the suit house was owned by Haridas
Bairagi. We fail to understand as to how this admission can be
of any avail to the plaintiffs much less to hold that the plaintiff
trust has title in the suit house bearing House No.878 in
Circle No.3.
31. Much ado was made about the contents of a
communication sent by defendant No.1 to the Mayor of
Nagpur Municipal Corporation (Exh.75). The same reads thus:
“Exhibit75
To,
The Mayor, Nagpur Municipal Corporation
Wasudeorao Maniramji Pullarwar,
Occupier Baba Haridasji Math,
House No.152, Ward No.6 New Ward
No.16, S. No.03, New Shukrawari,
Fawara Chowk, Medical Road, Nagpur. …..Applicant
Subject: Objection to mutation on house No.152, Ward
No.16 circle No.03, New SShukrawari, Fawara Chowk,
Medical Road, Nagpur.
Sir,
With respect, it submitted that house no.152, Ward
No.16 New Shukrawari Nagpur is recorded in the name of
Baba Haridas Math in the Nagpur Municipal Corporation
assessment register for the last 70 years. The applicant is
the disciple of Baba Haridas for the last 60 years and is in
possession and occupation of it for last 30 years. He is
37
looking after the Math and performing pooja/ustsav on
yearly basis (yearly Utsav). I am paying the taxes of the said
math for the last 30 years as occupier and user. The receipts
to that effect are with me. The demand bill for the year 1978
79 for taxes is given to the applicant. From that it has come
to the knowledge of the applicant that the said house is
recorded in the name of “Shri Hanuman Deosthan Trust”.
Then it is mentioned that the said change is as per the
decision of Learned Charity Commissioner, Mumbai dated
4.4.1975 and the same is recorded on 15.7.1976 in the
name of Hanuman Deosthan Trust. However, in the office or
register of Charity Commissioner, Mumbai or Deputy Charity
Commissioner, Nagpur dated 4.4.1975, there is no
reference/mention about Shri Haridas Baba Math, House
No.152, Ward No.16, Circle No.3, New Shukrawari, Nagpur
nor there is any reference in the copy received by me.
Hence, the Hanuman Deosthan Trust has got the
name changed from Haridas Baba Math to Hanuman
Deosthan Trust by keeping the tax department in the dark,
fraudulently. The change is recorded by the assessment
department of the Nagpur Municipal Corporation without
consulting or asking the applicant. The said change is not
acceptable to the applicant.
Hence, the original name of Baba Haridas Math should
be maintained. Accordingly, the applicant is ready to pay the
taxes as earlier.
Also the Hanuman Deosthan Trust has got the change
done by keeping the Corporation in the dark. It has no
relation with the math.
Hence, the name of the said Trust be removed and
original name of Baba Haridas Math be maintained. The
applicant be given opportunity to produce his documents
and say before yourself.
Nagpur
Dated: 17.3.1980 Sd/Wasudeo Pullarwar
Applicant”
38
We fail to understand as to how this communication can be
used as an admission of the defendants much less of having
accepted the title of the plaintiff trust in the suit House No.878
(renumbered as House No.152), in Circle No.3. On the other
hand, it is a representation made to assail the unilateral
alteration of mutation entry in favour of Shri Hanuman
Deosthan Trust in violation of principles natural justice.
32. Suffice it to observe that even the second substantial
question of law must be answered against the plaintiffs and in
favour of the defendants/appellants.
33. Taking any view of the matter, we have no hesitation in
upholding the conclusion recorded by the First Appellate
Court that the suit filed by the plaintiffs/respondents for
possession of the suit house is devoid of merits and deserves
to be dismissed.
34. Accordingly, this appeal succeeds. The impugned
th
judgment and order passed by the High Court dated 24
October, 2008 in Second Appeal No.364 of 1990 is set aside
and the judgment and decree passed by the District Court
39
st
Nagpur dated 21 January, 1989 in Regular Civil Appeal
No.564 of 1983, is restored. Thereby, the suit filed by the
plaintiffs/respondents bearing Special Civil Suit No.1127 of
1978 before the Court of Civil Judge, Senior Division, Nagpur
stands dismissed. No order as to costs. Ordered accordingly.
…………………………..….J.
(A.M. Khanwilkar)
…………………………..….J.
(Dr. D.Y. Chandrachud)
New Delhi;
November 16, 2018.