SHREE BHEEMNATH MAHADEV MANDIR vs H.U.F REPRESENTATIVE OF SOMWARPURI GOSWAMI-DECD.
- Court
- Gujarat High Court
C/SA/174/2014 JUDGMENT DATED: 21/10/2026
(GJHC240416212014)
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
R/SECOND APPEAL NO. 174 of 2014
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR. JUSTICE MAULIK J.SHELAT
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Approved for Reporting Yes No
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SHREE BHEEMNATH MAHADEV MANDIR
Versus
H.U.F REPRESENTATIVE OF SOMWARPURI GOSWAMI-DECD. & ORS.
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Appearance:
MR CHIRAG B UPADHYAY, AGP for the Appellant(s) No. 1
MANAN K PANERI(7959) for the Respondent(s) No. 2
MR NILESH A PANDYA(549) for the Respondent(s) No.
1.1,1.4,1.6.1,1.6.2,1.7,1.8,1.9.1,1.9.2
RULE SERVED for the Respondent(s) No. 1.5
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CORAM: HONOURABLE MR. JUSTICE MAULIK J.SHELAT
Date : 21/10/2026
JUDGMENT
1. Heard Mr. Chirag B. Upadhyay, learned AGP,
appearing for the appellant, Mr. Manan K. Paneri, learned
advocate, appearing for respondent No. 2 and Mr. Nilesh
A. Pandya, learned advocate, appearing for some of the
respondents.
2. The present appeal is filed by the original plaintiff of
Special Civil Suit No. 282 of 1986 under Section 100 of
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CPC, 1908, whereby challenged the judgment and decree
th
dated 26.12.2013 passed by the 13 Additional District
Judge, Vadadara in Regular Civil Appeal No. 362 of 2005
by which the Appellate Court confirmed the judgment and
decree dated 06.05.1989 passed by Civil Judge (Senior
Division), Vadodara in Special Civil Suit No. 282 of 1986.
3. The appellant herein is original plaintiff, whereas the
respondents herein are original defendants. For the sake
of convenience and brevity, they will be referred as per
their original status in the suit.
4. The short facts of the case appear to be that the
plaintiff is a trust claiming right over the suit land,
whereas the defendants disputed such right of plaintiff,
contending inter alia that in a previous suit for title filed
by the defendants against the State in relation to the suit
land, it was decreed in their favour. Therefore, according
to the defendants, now the plaintiff-Trust cannot seek any
declaration. The Trial Court framed the following issues
and answered accordingly.
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“Points for determination:
“(1) Whether Plaintiff proves that Plaintiff Trust is the
owner of disputed land bearing Survey No. 447
admeasuring 0 Acre 39 Gunthas situated in Sayajigunj
Area of Baroda?
(2) Whether Plaintiff proves that the judgment and
decree in Regular Civil Suit No. 12 of '71 and in Civil
Appeal No. 336 of '79, are null and void and are not
binding to the Plaintiff Trust?
(3) Whether Plaintiff proves that the judgment and
decree obtained in Regular Civil Suit No. 12 of '71 was
by fraud?
(4) Whether the Plaintiff is entitled for the compensation
of damages caused by the defendants to the rooms of
Dharamshala on northern side?
(5) Whether Plaintiff is entitled for declaration as prayed
for?
(6) Whether Plaintiff is entitled for permanent injunction
as prayed for?
(7) Whether Plaintiff is entitled for mandatory injunction
as prayed for?
(8) Whether defendants prove that this Court have no
jurisdiction?
(9) Whether defendants prove that suit is time barred?
(10) Whether defendant prove that suit is not tenable at
law?
(11) Whether defendants prove that suit is barred
by the principle of res-judicata?
(12) Whether defendants prove that he is owner
of open land admeasuring 42 x 60 Mtrs out of
Survey No. 447 on which they proposed to
construct?
(13) What order and decree?
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Answers:
(1) In the negative;
(2) In the negative;
(3) In the negative;
(4) No Decided;
(5) In the negative;
(6) In the negative;
(7) In the negative;
(8) In the negative;
(9) In the negative;
(10) In the negative;
(11) In the negative;
(12) In the negative;
(13) As per final order.”
5. Having found that it has no jurisdiction to decide the
lis between the parties in relation to suit land, inasmuch
as the suit land is a trust property or not can only be
decided by the Charity Commissioner as per the
provisions of the Gujarat Public Trusts Act, 1950 (herein
after referred to as “ the Act, 1950 ”), accordingly, the
Trial Court dismissed the suit. Nonetheless, it has been
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held by the Trial Court that decree passed in earlier suit
filed by the defendants would not bind the plaintiff as its
not party to such suit and thus, the suit in question is not
barred by res-judicata. The plaintiff carried the matter
before the Appellate Court by way of the aforesaid appeal
which also came to be dismissed. Hence, the present
Second Appeal.
6. This Court vide its order dated 30.09.2016 while
admitting this appeal framed the following substantial
questions of law:
“(A) Whether both the Courts below have failed to consider that case of
the defendant is barred by principle of estopple as ownership over
survey no.447 was accepted by the defendant in 1955 by letter produced
at Exhibit 235?
(B) Whether both the Courts below have erred in not considering that
plaintiff was not made party in the earlier suit and hence judgment
rendered in said proceedings are not binding to the plaintiff?
(C) Whether both the Courts below have made error in applying the rule
of res-judicata as contemplated under section 11 of the Civil Procedure
Code?
(D) Whether both the Courts below have committed serious error of law
in holding that the facts admitted are not proved?
(E) Whether both the Courts below have committed serious error of law
on issue of burden of proof in facts admitted by the other side?”
7. Having heard learned Counsels for the respective
parties and upon perusal of the impugned judgment and
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decree passed by the Trial Court as well as the Appellate
Court, prima facie , it appears that whether the suit land
belongs to the plaintiff – Trust or not can only be decided
by the Charity Commissioner as per the provisions of the
Act, 1950 and to that extent, no error can be found in the
impugned judgment and decree passed by the Courts
below. Nonetheless, it remains undisputed before this
Court that an inquiry in this regard was initiated before
the concerned Assistant Charity Commissioner at the
instance of the plaintiff, wherein after hearing the parties,
the plaintiff’s claim was rejected. Thereafter, the plaintiff
preferred an appeal, which is pending as on date before
the Charity Commissioner.
7.1. The learned advocates appearing for the
respondents are not in a position to dispute the aforesaid
fact and unable to object that such an inquiry cannot be
gone into by the Charity Commissioner. According to me,
considering this peculiar facts and circumstances of the
case, since it is undisputed that the matter is pending
before the Charity Commissioner to decide whether the
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suit land belongs to/owned by the plaintiff – Trust or not,
at this juncture, there is no further adjudication required
by this Court in the present Second Appeal.
8. So far as the aspect of principle of res judicata is
concerned, the Trial Court has already opined that the
earlier judgment and decree passed by the Civil Court in
favour of the original defendants would not operate as
res judicata , inasmuch as the plaintiff was not a party to
that suit proceedings. The defendants so far have not
challenged such adverse finding recorded by the Trial
Court against them in the appeal.
9. Thus, in view of the aforesaid facts and
circumstances of the case and what has been observed
herein above, this Court would only hold that the title and
ownership of the suit land shall have to be adjudicated by
the Charity Commissioner in the appeal proceeding
instituted by the plaintiff herein and the final outcome of
such proceeding shall bind the parties to the present
proceedings.
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10. At this stage, Mr. Paneri, learned advocate for the
respondent No. 2 herein, would state that the respondent
No. 2 herein is not a party to such proceeding now
pending before the Charity Commissioner. Whereas,
learned AGP would state that respondent No.2 or its
representative in interest is very much joined in such
proceeding. Be that as it may, it is hereby observed that it
is open for the respondent No. 2 herein to request the
Charity Commissioner to allow him to join the appeal
proceeding instituted by the plaintiff. In a case where
such a request will be made on behalf of the respondent
No. 2 herein, the Charity Commissioner is hereby
requested to consider such request and allow the
respondent No. 2 to appear and assist the Charity
Commissioner in the appeal proceeding as having an
interest in the subject suit land.
10.1. Likewise, Mr. Pandya, learned advocate appearing
for original defendants also requests this Court that in a
case where any of the respondents herein (defendants)
whom he is representing are not made party before the
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Charity Commissioner, they may be permitted to be joined
in the proceeding pending before the Charity
Commissioner. It is also open for any of the respondents
herein – original defendants who might not have been
joined in the appeal proceeding pending before the
Charity Commissioner to request the Charity
Commissioner to allow them to be joined in such appeal
proceeding. In a case where any such request will be
made, the Charity Commissioner upon proper verification
of the status of such party, may allow such party to join
the appeal proceeding pending before him.
11. Learned advocates appearing for the respective
parties would request this Court that appropriate
direction may be issued to the Charity Commissioner to
decide the lis between the parties as early as possible.
Since the matter is old and the issue is pending since
long, it is desirable that the Charity Commissioner shall
hear and adjudicate the lis between the parties as early
as possible preferably within six months from the date of
receipt of copy of this order.
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12. It is needless to observe that this Court has not
opined so far as the ownership and/or title of the suit land
in favour of any of the parties. Such issue shall be
considered and adjudicated by the Charity Commissioner
in accordance with law in the pending appeal before him.
With the aforesaid observation, direction and reasons, the
present second appeal is disposed of. Rule is discharged.
No order as to costs.
(MAULIK J.SHELAT,J)
SHAHANAZ
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