Chattisgarh High Court
Sadanand Shukla (Dead) Through Legal ... vs (Deleted) Lakshman Singh Thakur on 14 September, 2022
Author: Narendra Kumar Vyas
Bench: Narendra Kumar Vyas
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Reserved on 20.06.2022
Pronounced on 14.09.2022
FA No. 73 of 2007
1. Sadanand Shukla (Dead) Through Legal Heir Bhuneshwar (Deleted)
1.1 - Deleted (Smt. Shivkumari Devi) Honble Courts Order Dated
12/04/2022.
1.2 - Smt. Radha Devi D/o Late Bhuneshwar Shukla Aged About 36
Years R/o Ganja Chowk, Raigarh Tahsil And District Raigarh
Chhattisgarh.
1.3 - Stm. Namita Devi D/o Late Bhuneshwar Shukla Aged About 32
Years R/o Ganja Chowk, Raigarh Tahsil And District Raigarh
Chhattisgarh.
1.4 - Smt. Sarita Devi D/o Late Bhunesdhwar Shukla Aged About 28
Years R/o Ganja Chowk, Raigarh Tahsil And District Raigarh
Chhattisgarh.
2. Kamaeshwar (Deleted)
3. Smt. Daya Tiwari W/o Aslok Tiwari R/o Rduha (Bihar)
4. Smt. Maya Tiwari W/o Radheshyam Tiwari R/o Kundreh District
Garhwa (Biahar) Now Jharkhand
5. Vrindavan Dubey (Deleted)
6. Upendra Dubey S/o Hridyanand Dubey, R/o Village Choka, Post
Office Belhat, Police Station Majhiyav, District Gadhwa (Bihar)
---- Appellants
Versus
1. (Deleted) Lakshman Singh Thakur S/o As Per The Hon'ble Court
Order Dated 20-06-2022.
2. Gopal S/o Nandu Mishra Aged About 40 Years Occupatin Advocacy,
R/o Ramgudipara, Raigarh, Tahsil And District Raigarh.
3. (Deleted) Jagannath Kesharvani As Per The Hon'ble Court Order
Dated 20-06-2022.
4. (Deleted) Govind Singh Thakur As Per The Hon'ble Court Order
Dated 20-06-2022.
5. (Deleted) Amulya Kumar Choubey As Per The Hon'ble Court Order
Dated 20-06-2022.
6. (Deleted) Onkar Singh Thakur As Per The Hon'ble Court Order Dated
20-06-2022.
7. Gopinath Gupta S/o Late Rameshwar Gupta, Aged About 34 Years
Occupation Advocacy, R/o Baniyapara Raigarh, Tahsil And District
Raigarh Chhattisgarh.
8. State Of Chhattisgarh, Through The Collector, Raigarh.
9. Registrar, Public Trust Raigarh Tahsil And District Raigarh (State Of
M.P. Now Chhattisgarh)
---- Respondents
2
For Appellants : Shri A. N. Pandey, Advocate
For Respondent No. 2 and 7 : Shri H.S. Patel, Advocate
For State : Ms. Ishwari Ghritlahre, Panel Lawyer
Hon'ble Shri Justice Narendra Kumar Vyas
C.A.V. JUDGMENT
1) The appellants/plaintiffs have filed present appeal under Section 96 of C.P.C. challenging the judgment and decree dated 16.03.2007 passed by the learned Additional District Judge, Raigarh in Civil Suit No. 5- A/1988 by which the learned trial Court has dismissed the suit filed by the plaintiffs for declaration of the suit property mentioned in Schedule A situated at village Barliya measuring 9.57 acres and three buildings mentioned in Schedule B situated at Raigarh (hereinafter referred to as suit property).
2) For the sake of convenience parties would be referred to as per their status shown in the suit filed before the trial Court.
3) The brief facts as reflected from the plaint averments are that the deceased plaintiff Sadanand Shukla has filed civil suit mainly contending that the defendants are the office bearers of the so called trust Gopal Mandir Trust, Ganja Chowk, Raigarh. Defendant No. 1, 2 and 3 are claiming themselves as president, Secretary and treasurer respectively, remaining defendants are claiming themselves to be the members of the trust. It has been pleaded in the plaint that in the then Raigarh Princely State one Baba Kewaldas who was resident of Bihar came for publicity of religious thoughts, constructed one temple in the name of Shri Gopalji and also acquired property at various villages. He expired in year 1908 and as per the Guru parampara the property was inherited to Baba Laldas. Baba Laldas in his lifetime developed the property of the temple and expired in year 1920. Thereafter, the temple property and also other properties in Barliya village were inherited to his successor Baba Ramdas. The properties situated at Saktihabhanta and Regaon were inherited to disciples Tulsidas and Bhagwandas. Baba Ramdas has borne all the expenditure from his income and was doing agriculture work in the property situated at village Barliya measuring about 9 Acres 57 dismil and also purchased some properties out of agriculture income which has been described in Schedule A of the plaint and the property 3 situated at Raigarh has been described in Schedule B. It is further contended that the house acquired by Baba Ramdas was his personal property and he has given the house on rent. Similarly, Baba Ramdas has done various constructions in the premises of the temple. It is further contended that the properties described in Schedule A and B have been constructed and developed by the financial assistance of Baba Ramdas, Baba Laldas and Baba Kewaldas only. No one else has provided financial assistance. Baba Ramdas has become old, therefore, to look after the property and to worship he has called plaintiff Sadanand who was his nephew and father of the plaintiff Prakashram @ Rampraqkash and Baba Ramdas also executed will in favour of the plaintiff-Sadanand. After death of Baba Ramdas in year 1929, name of the plaintiff was recorded in the revenue records of the temple and other properties. Since then the temple and other properties are in possession of the plaintiff.
4) It has been further contended that Baba Ramdas has constructed other temple situated at Rajpara which is Lakshmi Temple. Management of the Lakshmi Temple was given to Baba Krishnadas. After death of Baba Laldas there was dispute between Baba Ramdas and Baba Krishnadas with regard to Lakshmi Temple. During the life time of Baba Ramdas, Baba Krishanadas expired, therefore, the Lakshmi Temple was returned back to Baba Ramdas. During the lifetime of Baba Krishnadas, the building of the temple was dilapidated which was attempted by the Baba Ramdas to be reconstructed, but due to some reason it could not be constructed. It is further contended that Baba Ramdas and his assistant Prakashdas and the plaintiff have moved an application before the Municipal Corporation for constructed the temple and the other buildings. The plot situated at Rajapara related to Lakshmi Temple has been recorded in the name of the plaintiff on 27.04.1977 and the property situated at Ganjachowk has also been recorded in the name of the plaintiff. The properties described in the Schedules are in exclusive possession of the plaintiff. The defendants have started creating dispute contending that the disputed properties are properties of the Gopal Temple Trust. As per his knowledge there is no such trust. The plaintiff is living in Raigarh since 1928 but no one has claimed that the properties belong to the trust. The defendants and others in the month of January, 4 1987 have attempted to interfere in the management of the property. The defendants with other local persons have also submitted objection letter before SDO-cum-Registrar of the Public Trust on 27.01.1987 and 30.01.1987. The SDO-cum-Registrar Public Trust issued notice 05.03.1987 to the plaintiff to appear before the Court on 24.03.1987. During the hearing of the case from the documents of the defendants, for the first time the plaintiff came to know that as per the order dated 22.01.1954 in Revenue Case No. 10/111/C/1953-54 the disputed Gopal Temple has been registered and the property mentioned in Schedule A and B has been declared as trust property. It has been further contended that from the annexed government records and certified copies it is quite vivid that the disputed property is in the name of the plaintiff and he is in possession of the same. Before creation of the trust no information was given to the plaintiff by the said turstee, therefore, the order passed by the Registrar Public Trust is not binding upon him and is void ab initio. The defendants are interfering in the possession of the plaintiff which has necessitated him to file the civil suit.
5) The defendants have filed their written statement denying the allegation in the plaint contending that Gopal Temple Trust is registered under the Madhyapradesh Public Trusts Act, 1951 and they are the office bearers of the trust. It has been specifically denied that the property belongs to Baba Kewaldas, therefore, his successor Laldas has received the property by inheritance and after death of Laldas property cannot be inherited by Baba Ramdas, thereafter, Baba Kewaldas and Baba Laldas. It has also been denied that Gopal Temple Trust and related property have been given through will in favour of the plaintiff. It is denied that on the basis of will name of the plaintiff has been recorded and he is in possession of the suit property. It is also denied that the property described in Schecule B has been constructed by Baba Ramdas or his assistant Prakashram and the plaintiff. It has been contended that Dulichand Verma, Lalaprasad Rathore and Madanlal Gupta are the tenants of the registered Gopal Temple Trust Committee. The plaintiff has no right over the trust property. It has been contended that Gopal Temple Trust is very old trust. Before enactment of the Public Trust Act, 1951 it was not registered. After the Act came into force the trust has been registered as per order passed in Revenue Case No. 5 10/33/9/1953-54 dated 22.07.1954. At the time of registration of the trust the suit properties were also included in the trust property as such it is trust property. It has been specifically contended that defendants are being trustees are looking after the trust property. The description of the application made in para 14 of the plaint is forged and fabricated. It has been contended that it is incorrect to say that no information was given to the plaintiff. On production of the order dated 22.07.1954 the SDO- cum-Registrar, Public Trust has rejected the objection raised by the plaintiff and directed the plaintiff to file civil suit. The averment in clause 17-A is hypothetical and denied since the plaintiff was present in the meeting dated 13.08.1970 and he has also put his signature. The suit property is valued at Rs. 5,00,000/- but the suit is undervalued, therefore, the suit is not maintainable. The plaintiff was working as Pujari. As he and his son Bhuneshwar were not working properly, Bageshwar Tiwari was appointed as Pujari. After the M.P. Public Trust Act, 1951 came in to operation the application for registration of the trust has been submitted wherein the name of the plaintiff has been mentioned as manager of the trust. It is further contended that the plaintiff is attempting to declare the trust property as private property whereas after following due process the trust has been registered and after registration of the trust proclamation was done where the plaintiff has not raised any objection. Now, after the registration of the trust period of 6 months has also expired. Therefore, the suit filed by the plaintiff is time barred and order of registration of the trust is final and conclusive. It is further submitted that the Registrar, Public Trust, Raigarh is necessary party and they have not impleaded him as party, therefore, the suit is not maintainable. It has been clarified that the temple has been constructed by Thakur Ramcharan Singh. Thakur Ramcharan Singh was grand father of Thakur Harisingh. Thakur Ramcharan Singh has donated a shop to the temple. The shop situated at Baniyapara has been donated by Ghashiramji Bani. One shop was constructed and handed over by late Fakruddin. Land situated at Barliya has been donated by Shobharam Thawait. Description of other land has been given in meeting dated 23.03.1954. Development and construction of the temple has also been done by the public at large. The order of registration dated 22.07.1954 and finding has attained finality and to 6 avoid the provisions of the Public Trust Act the plaintiff has filed the present suit, therefore, the suit is not maintainable.
6) On the pleadings of the parties, learned trial Court framed as many as 20 issues. The issues No. 2, 2(a), 2(b), 2(c), 19 and 20 are relevant to decide the controversy raised in the appeal, therefore, they are extracted below:-
2. Whether Shree Gopalji Mandir Trust Committee, Ganja Chowk, Raigarh has been registered as trust on 22.07.1954 and information of the registration for the first time was received on 05.08.1988?
(a) Whether in the application for registration of the trust name of the plaintiff has been mentioned as manager of the trust?
(b) Whether the plaintiff was aware that the procedure for registration of trust is going on?
(c) Whether information regarding registration of the trust has been given to the plaintiff?
(19) Whether registration of the trust is final if yes then its effect? (20) Whether plaintiff has filed claim ignoring the provisions of the Chhattisgarh Public Trusts Act?
7) The plaintiff to substantiate his averments has examined Shivkumari Devi as PW/1, Narayani Devi as PW/2, Onkarprasad Manjhi as PW/3, and exhibited documents Ex.P/1 - letter to Registrar, Public Trust dated 27.01.1987, Ex.P/2 and P/3 letter to Registrar, Public Trust dated 30.01.1987, Ex.P/4- Notice in revenue case, Ex.P/5- rent agreement dated 15.02.1980, Ex.P/6- rent agreement dated 09.03.1980, Ex.P/7 - certificate copy of revenue case dated 18.09.1924, Ex. P/8 order sheet dated 13.08.1929, Ex.P/9- order sheet dated 23.08.1929 in revenue case, Ex.P/10, copy of revenue case decided on 26.12.1920, Ex.P/11 Form No. 1, Ex.P/12- letter dated 20.02.1928, Ex.P/13 Khasra details of Raigarh 1913 to 16, Ex.P/14 Maintenance of Khsra 1949-50, Ex.P/15 to 17 Form III of Khasra, Ex.P/18 to P/24 copy of Register Dakhil, Ex.P/25 records relates to Jamabandi, Ex.P/26 Kistbandi Khatauni wherein name of landlord has been mentioned as Sadanand S/o Prakashram Pujari, Ex.P/127 to 33, Ex.P/34 Kistbandi Khatauni, Ex.P/35 Renewal of lease, Ex.P/36 Rin Pustika, Ex.P/37 to 46 abstract of Malgujari Register. Ex.P/47 copy of register of public trust for Raigarh.
8) The plaintiff's witness PW/1 Shivkumari was examined by the plaintiff to 7 substantiate his averment made in the plaint. In cross examination she has denied that the suit property is a trust property. She has denied that her husband Bhuneshwar and father in law were working as Pujari. She has denied that Sadanand was manager of the trust. PW/2 Narayani Dewi was examined wherein she has stated that she has signed the documents with regard to the property described in the plaint. Other witness Onkarprasad Manjhi was examined as PW/3 and in his cross- examination he has stated that he has seen the document with regard to title of the property.
9) Defendants have examined Laxman Singh Thakur as DW/1, Suresh Kumar Gupta and exhibited Ex. D-1 certified copy of order passed by the Registrar of Public Trust along with Annexure I wherein the suit property has been described as trust property, Ex.D-2 Vakalatnama given by Bhuneshwar Shukla for plaintiff, Ex.D-3 order sheets in Civil Suit from 25.08.1972 to 26.08.1975, Ex.D-4 Judgment and decree in the civil suit, Ex.D-5 certified copy of the order dated 14.07.1988, Ex.D-6 and D-7 Renewal of lease, Ex.D-8 List of Office bearer of the public trust, Ex.D-9 and 10 rent receipts.
10) DW-1 Laxmansingh Thakur who was trustee and the president at the relevant time has stated that the trust was registered on 23.02.1952 and also detailed the property which has been received by the trust through donation from Ramcharan Singh, Ghasiramji Bani, Seth Fakruddin and land situated at Barliya by Shobharam Thawait and contribution of the public at large. He was extensively cross-examined by the plaintiff wherein he has stated that they have not filed any document to demonstrate that any information before the registration of trust on 27.07.1954 was given to Sadanand. He has also stated that he is not aware of the fact that whether notice was issued to the plaintiff by the Registrar Public Trust or not. He is not aware that any proclamation has been given by them before the Registrar Public Trust.
11) DW/2 Suresh Kumar Gupta was examined who in his examination-in- chief has stated that he was giving rent to the trust. It was denied by him that Dulichand Verma and Lala Prasad Rathore were tenants of the plaintiff. He further stated that Bhuneshwar Shukla was taking rent claiming himself to be owner of the house, it was objected by the trust. He has also stated that after death of Bhuneshwar he is not giving rent 8 to his widow or daughter.
12) Learned trial Court after appreciating the evidence and material on record has dismissed the suit filed by the plaintiff.
13) Learned counsel for the plaintiff has vehemently opposed the dismissal of the suit by criticizing the finding of the learned trial Court contending that judgment and decree dated 16.03.2007 passed by the trial Court is contrary to the facts and evidence and has committed error in deciding the issue No. 2 as not proved against the plaintiff as the plaintiff came to know about the registration of the trust for the first time on 05.08.1988, therefore, the finding recorded by the learned trial Court against issue Nos. 2(a), 2(b), 2(c) and 2(e) is perverse and contrary to the law and should have held that the plaintiff has no prior knowledge of the registration of the trust, therefore, the learned trial Court should have allowed the suit. Learned trial Court has committed illegality by not recording a finding that the trust property described in the Schedule A and B of the plaint are self acquired property of Baba Ramdas. He would further submit that learned trial Court has committed error by deciding issue No. 19 and 20 against the plaintiff that the order of Registrar, Public Trust has become final and the suit is not filed in accordance with the provision of C.G. Public Trust Act. He would further submit that the Registrar of the Public Trust has not followed the procedure before registration of the trust, therefore, the registration of the public trust itself is illegal, as such, learned trial Court should have allowed the suit.
14) On the other hand learned counsel for the defendants would submit that the finding recorded by the learned trial Court that the property described in Schedule A and B of the plaint belonging to trust is just and legal. He would further submit that Sadanand was well aware of registration of the Gopal Temple Trust. At the time of registration his name was given as Manager of the trust. The plaintiff has never challenged the order of the registration, therefore, the same has attained finality. The plaintiff has not filed any document to demonstrate that the property has been inherited by him by leading cogent evidence. He would further submit that the order passed by the Registrar of the Public Trust has attained finality on 22.07.1954, as such suit filed by the plaintiff is not maintainable as per the Section 8 of the Public Trust Act.
9He would further submit that on the basis of recording the name of plaintiff in revenue record the plaintiff cannot claim the title of the property. The Hon'ble Supreme Court in catena of the judgments has decided this issue, therefore, the finding recorded by the learned trial Court is legal, justified and does not warrant any interference.
15) I have heard learned counsel for the parties and perused the records.
16) Before adverting to the controversy raised in the appeal, it is expedient for this Court to extract relevant provisions of the Chhattisgarh Public Trusts Act, 1951 which are necessary for adjudicating the case:-
4. Registration of public trusts. - (1) Within three months from the date on which this 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.
(2) Such application shall be accompanied by such fees, if any, not exceeding five rupees as may be prescribed.
(3) The application shall be in such form as may be prescribed and shall among other things contain the following particulars, namely,-
(i) the origin, nature and object of the public trust;
(ii) the place where the principal office or the principal place of business of the public trust is situate;
(iii) the names and addresses of the working trustee and the manager;
(iv) the mode of succession to the office of the trustees;
(v) the list of the movable and immovable trust property in the [State] and such description and particulars as may be sufficient for the identification thereof;
(vi) the approximate value of the movable and immovable property;
(vii) the income derived from movable and immovable property and from any other source, if any, based on the gross annual income during the three years immediately preceding the date on which the application is made or of the period which has lapsed since the creation of trust whichever period is shorter and in the case of a newly created public trust the estimated income from such sources;
(viii) amount of the average annual expenditure in connection with such public trust estimated on the expenditure incurred within the 10 period to which the particulars under clause (vi) relate;
(ix) the address to which any communication to the working trustee or manager in connection with the public trust may be sent; and
(x) such other particulars as may be prescribed:
Provided that the rules may provide that in the case of any or all public trusts it shall not be necessary to give the particulars of the trust property of such value and such kind as may be specified therein.
(4) No Registrar shall proceed with any application for the registration of a public trust in respect of which an application for registration has been filed previously before any other Registrar and the Registrar before whom the application was filed first shall decide which Registrar shall have jurisdiction to register the public trust. (5) Any appeal against the order of the Registrar under sub-section (4) may be filed within thirty days of the order before such officer as the State Government may, by notification, appoint, and subject to the decision in such appeal the order of the Registrar under sub-section (4) shall be final.
(6) Every application made under sub-section (1) shall be signed and verified in accordance with the manner, laid down in the Code of Civil Procedure, 1908 (V of 1908), for signing and verifying plaints. It shall be accompanied by a copy of an instrument of trust if such instrument had been executed and in existence and where the trust property includes immovable property, about which record is kept, a copy of the entries relating to such property in such record of rights.
5. Inquiry for registration. - (1) On receipt of an application under Section 4 or upon, an application made by any person having interest in a public trust or on his own motion the Registrar shall make an inquiry in the prescribed manner for the purpose of ascertaining, -
(i) whether the 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 situated within his jurisdiction;
(iv) the names and the addresses of the trustees and the manager of such trust;
(v) the mode of succession to the office of the trustee of such trust;
11(vi) the origin, nature and object of such trust;
(vii) the amount of gross average annual income and the expenditure of such trust; and
(viii) the correctness or otherwise of any other particulars furnished under sub-section (3) of Section 4.
(2) The Registrar shall give in the prescribed manner public notice of the enquiry 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.
6. Findings of the Registrar. - On completion of the inquiry provided for under Section 5, the Registrar shall record his findings with reasons therefor as to the matters mentioned in the said section.
7. Registrar to make entries in the register. - (1) The Registrar shall cause entries to be made in the register in accordance with the findings recorded by him under Section 6 and shall publish on the notice board of his office the entries made in the register. (2) The entries so made shall, subject to the provisions of this Act and subject to any change recorded under any provision of this Act or a rule made thereunder, be final and conclusive.
8. Civil suit against the finding of the Registrar. - (1) Any working trustee or person having interest in a public trust or any property found to be trust property, aggrieved by any finding of the Registrar under Section 6 may, within six months from the date of the publication of the notice under sub-section (1) of Section 7, institute a suit in a Civil Court to have such finding set aside or modified. (2) In every such suit, the Civil Court shall give notice to the State Government through the Registrar, and the State Government, if it so desires, shall be made a party to the suit.
(3) On the final decision of the suit, the Registrar shall, if necessary, correct the entries made in the register in accordance with such decision.
12. Notice to Registrar in a proceeding in which a document purporting to create a public trust is produced. - If, in any proceeding before a Civil Court or a Revenue Officer, any document purporting to create a public trust is produced or any question before such Court or officer is likely to effect any entry in the register such 12 Court or officer shall give notice to the Registrar of such proceedings and shall, if the Registrar applies in that behalf, make him a party to such proceedings.
17) From the above stated provisions, it is evident that after enactment of the Madhya Pradesh Public Trust Act, 1951, every trust has to be registered by the Registrar having jurisdiction under the Public Trust and Section 4 of the Act provides the mechanism and procedure, Section 5 defines how enquiry has to be conducted. Section 5(2) provides the manner in which notice to be issued and invite all the persons interested in the trust to prefer objections, if any. Thereafter, considering the objection the Registrar shall give its finding and the finding recorded in the Register be maintained by the Registrar. These provisions clearly envisage that the Registrar after receiving application for registration shall issue notice to the persons who are interested in the trust.
18) The plaintiff's objection was that when the registration was done intimation was not given to Sadanand the original plaintiff, therefore, the registration is bad in law. The plaintiff has taken this specific ground but has not produced the records of the Registrar Public Trust to demonstrate that there was violation of the provisions, whereas the defendants have taken specific stand that name of Sadanad was recorded as manager of the trust. This fact was not rebutted by the plaintiff by calling of the records of the trust which was incumbent upon him as he is assailing the procedure followed by the Registrar before registration of the public trust.
19) It is well settled legal position is that initial onus is always upon the plaintiff to prove the fact and if he discharges that onus and makes out a case which entitles him to a relief, then onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same. In this case nothing has been discharged by the plaintiff. The plaintiff has not proved by adducing cogent evidence on record that he has title over the suit property.
20) Hon'ble Supreme Court in the case of Anil Rishi vs Gurbaksh Singh (2006) 5 SCC 558 has held as under;-
There is another aspect of the matter which should be borne in mind. A distinction exists between a burden of proof and onus of proof. The 13 right to begin follows onus probandi. It assumes importance in the early stage of a case. The question of onus of proof has greater force, where the question is which party is to begin. Burden of proof is used in three ways : (i) to indicate the duty of bringing forward evidence in support of a proposition at the beginning or later; (ii) to make that of establishing a proposition as against all counter evidence; and (iii) an indiscriminate use in which it may mean either or both of the others. The elementary rule is Section 101 is inflexible. In terms of Section 102 the initial onus is always on the plaintiff and if he discharges that onus and makes out a case which entitles him to a relief, the onus shifts to the defendant to prove those circumstances, if any, which would disentitle the plaintiff to the same.
21) Hon'ble Supreme Court again in the case of Rangammal vs. Kuppuswami and another (2011) 12 SCC 220 has held as under;-
34. It has been further held by the Supreme Court in the case of State of J& K vs. Hindustan Forest Company, 2006 (12) SCC 198, wherein it was held that the onus is on the plaintiff to positively establish its case on the basis of material available and it cannot rely on the weakness or absence of defence to discharge onus.
35. It was still further held by this Court in the matter of Corporation of City of Bangalore vs. Zulekha Bi, 2008 that it is for the plaintiff to prove his title to the property. This ratio can clearly be made applicable to the facts of this case for it is the plaintiff who claimed title to the property which was a subject-matter of the alleged sale deed of 24.2.1951 for which he had sought partition against his brother and, therefore, it was clearly the plaintiff who should have first of all established his case establishing title of the property to the joint family out of which he was claiming his share. When the plaintiff himself failed to discharge the burden to prove that the sale deed which he executed in favour of his own son and nephew by selling the property of a minor of whom he claEven no witness was examined in his support with regard to supply of material. The Appellate Court has considered imed to be legal guardian without permission of the court, it was clearly fit to be set aside by the High Court which the High Court as also the courts below have miserably failed to discharge.
36. The onus was clearly on the plaintiff to positively establish his case on the basis of material available and could not have been allowed by the High Court to rely on the weakness or absence of defence of the defendant/appellant herein to discharge such onus. The Courts below thus have illegalily and erroenly failed not to cast this burden on Respondent 1-plaintff by clearlySection 67 in The Indian Evidence Act, 1872 misconstruing the whole case and thus resulted into recording of finding which are wholly perverse and even against the admitted case of the parties.
22)In this case, it is very important aspect that the plaintiff has not impleaded Registrar Public Trust as party to the case and after objection was raised by the defendants in the written statement, the Registrar Public Trust, Tahsil and District Raigarh was impleaded as defendant 14 No. 13 on 27.08.1998. The order sheets of the case would further demonstrate that even after impleading the Registrar of the Public Trust as defendant No. 13 there was no prayer of the plaintiff to call for the records of the Registrar Public Trust, therefore, the finding recorded by the learned trial Court that trust has been validly registered on 22.07.1954 does not suffer from perversity which warrants interference by this Court.
23)Learned trial Court has also considered the fact that the trust was registered on 22.07.1954 and the suit was filed on 14.09.1988 i.e. after lapse of 34 years whereras as per Section 8 of the Act, if plaintiff has some objection, he should have moved an application within six months. Learned trial Court has negated the contention of the plaintiff that in the year 1987-88 only when the objection was raised on 05.08.1988, then he came to know about the registration of the trust. Learned trial Court while deciding the issue No. 19 has recorded a finding that registration of trust becomes final as it was registered on 22.07.1954 and as per Section 8 of the Act, objection, if any, has to be raised within six months. The Suit was filed on 14.09.1988 as such it is barred by limitation.
24)The Section 8(1) Chhattisgarh Public Trusts Act, 1951 has come up for consideration before the Hon'ble Supreme Court in case of Abdul Karim Khan and Others vs. Municipal Committee Raipur (AIR 1965 SC 1744). The Hon'ble Supreme Court in paragraph 12 and 13 as held as under :-
12. 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 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.
13. 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 15 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.
25) Relying upon the judgment of Hon'ble Supreme Court the Hon'ble Madhya Pradesh High Court in case of Jain Shwetamber Ajeetnath Ji Mandir Trust vs. Registrar Public Trust and Others (2018) SCC Online MP 1554 paragraph 14 to 16 has held as under :
14. In case of Hasan Nurani Malak V/s. S.M. Ismail : (SC) 1967 MPLJ 118, the apex Court has held that the cause of action for such a suit is the finding of the Registrar and not the entry. Para 4 of the aforesaid judgment is reproduced below :
"4. It is clear from the provisions of section 8 that though the entries made by the Registrar are final and conclusive that finality is subject to the decision of the Court in a suit challenging the findings of the Registrar. The cause of action for such a suit is thus the finding of the Registrar and not the entry. It is manifest that section 7 requires the making of the entry and its notification in order that the findings given by the Registrar are recorded and are given publicity so that an aggrieved party whether he is a working trustee or a person interested in the trust may file a suit within the prescribed time."
15. In case of Mahant Ramlaladas V/s. Registrar of Public Trusts : 1962 MPLJ SN 41, the Division Bench of this Court has held that an aggrieved party can seek his remedy of a suit u/s. 8 of the Act of 1951. Relevant paragraph of the aforesaid judgment is reproduced below :
"It is clear from the provisions of sections 5, 6 and 7 of the Act read together that the Registrar has to make an enquiry about all the matters mentioned in sub-section (v) of section 5 and to record his findings with reasons therefor on all these matters. Thereafter he has to cause entries to be made in the Register in accordance with the findings recorded by him and he must also publish on the notice board of his office the entries so made. These requirements are mandatory because when they are fully complied with, an aggrieved party can seek his remedy of a suit under section 8 of the Act."
16. In the case of Rajkumari V/s. State of M.P. : 1993 MPLJ 465, this Court has held that, whether the trust is a public trust and whether any property is the property of the public trust are subject matters of inquiry before a statutory authority. It is only when 16 findings have been recorded by the Registrar, anyone aggrieved has the remedy of instituting a civil suit under section 8 of the Act. Para 6 of the aforesaid judgment is reproduced below :
"6. It is thus clear that whether the trust is a public trust and whether any property is the property of the public trust are subject-matters of inquiry before a statutory authority. That authority does have exclusive jurisdiction, though summary in nature, to adjudicate upon the points contemplated by section 5 of the Act. It is only when findings have been recorded by the Registrar anyone aggrieved has the remedy of instituting a civil suit under section 8 of the Act."
26)This Court cannot accept the submission of the learned counsel for the plaintiff that for the first time he came to know about the registration of the trust on 05.08.1988 as from the certified copy of Vakalatnama of Sadanand Shukla filed in Civil Suit No. 41A/72 decided on 30.09.1975 which was exhibited as Ex.D/2 before the trial Court wherein name of the plaintiff was shown as permanent Pujari of the trust.
27)From bare perusal of the order dated 14.07.1988 Ex.P/5 it cannot be said that the limitation as provided in Section 8(1) of the Act can be extended as the plaintiff submitted application before the Registrar Public Trust on 27.01.1987 whereas the property has been registered as property of the public trust on 22.07.1954. As such also the suit is barred by limitation and even otherwise the plaintiff as per provisions of Section 26 of the Public Trusts Act has not agitated the matter and filed the suit for declaration which is also not maintainable in terms of the provisions of Public Trusts At, therefore, the suit was rightly dismissed by the learned Trial Court extensively examining the facts, law and material on record, which does not suffer from perversity or illegality warranting interference by this Court, Accordingly the first appeal being devoid of merit deserves to be and is hereby dismissed.
28)Decree be drawn up accordingly.
Sd/-
(Narendra Kumar Vyas) Judge Deshmukh