Karnataka High Court
Chairman Vishaparihareshwar Temple ... vs President The Hirekerur House ... on 18 July, 2024
Author: M.G.S. Kamal
Bench: M.G.S. Kamal
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NC: 2024:KHC-D:10010
CRP No. 1038 of 2005
IN THE HIGH COURT OF KARNATAKA, DHARWAD BENCH
DATED THIS THE 18TH DAY OF JULY, 2024
BEFORE
THE HON'BLE MR JUSTICE M.G.S. KAMAL
CIVIL REVISION PETITION NO.1038 OF 2005(M)
BETWEEN:
CHAIRMAN,
VISHAPARIHARESHWAR TEMPLE COMMITTEE,
BALAMBEED, TQ: HIREKERUR,
DIST: HAVERI.
...PETITIONER
(BY SRI RAMACHANDRA V. BHAT, ADVOCATE FOR
SRI F. V. PATIL, ADVOCATE)
AND:
PRESIDENT,
THE HIREKERUR HOUSE
CONSTRUCTION CO-OP.,
SANGHA LTD., HIREKERUR,
DIST: HAVERI.
Digitally
signed by V N ...RESPONDENT
BADIGER
Location:
(V/C/DATED 09.07.2024 COURT NOTICE TO
High Court of
Karnataka
RESPONDENT RETURNED AS "UNSERVED")
THIS CIVIL REVISION PETITION IS FILED U/S 115 OF
THE CPC, SET ASIDE THE ORDER DATED 07.10.2005 PASSED
BY THE COURT OF ADDITIONAL CIVIL JUDGE (SR.DN.),
RANEBENNUR, IN M.A.NO.09/1999 BY ALLOWING THIS
REVISION PETITION AND ETC.,
THIS CIVIL REVISION PETITION, COMING ON FOR
ORDERS, THIS DAY, THE COURT MADE THE FOLLOWING:
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NC: 2024:KHC-D:10010
CRP No. 1038 of 2005
ORDER
1. Petitioner / defendant namely, Vishaparihareshwar Temple Committee, Balambeed, Hirekerur taluk, Haveri district is before this Court
aggrieved by the order dated 07.10.2005 passed in Misc.Appeal No.9/1999 on the file of the Addl. Civil Judge (Sr.Dn.), Ranebennur (hereinafter referred to as 'the first appellate Court'), by which the first appellate Court while allowing the miscellaneous appeal filed by the respondent- Society herein, set aside the order dated 26.10.1999, that was passed in O.S.No.23/1979 on the file of the Civil Judge (Jr.Dn.), Hirekerur (hereinafter referred to as, 'the trial Court') holding that the trial Court did not have jurisdiction to proceed with the suit in view of the prohibition contained under the provisions of The Bombay Public Trusts Act, 1950 and Rules, 1951 (for short, 'the BPT Act & the BPT Rules').
2. Brief facts of the case are that; the above suit in O.S.No.23/1979 filed by the respondent/plaintiff -3- NC: 2024:KHC-D:10010 CRP No. 1038 of 2005 seeking relief of declaration declaring it to be the owner of immovable property bearing R.S.No.33/2 measuring 4 acres 35 guntas situated at Balambeed village, Hirekerur taluk (hereinafter referred to as, 'subject property') and for consequential relief of permanent injunction restraining the petitioner/defendant from interfering with the subject property of the respondent/plaintiff in forming plots and in the subject property.
3. The case of the respondent/plaintiff was that, the subject property belonging to the petitioner/defendant-Trust having acquired the same in terms of a Gift Deed dated 20.03.1962. That the subject property was agreed to be sold by the then Chairman of the petitioner/defendant-Trust on 17.10.1972, pursuant to which, a deed of sale was executed and registered on 10.05.1973. That the respondent/plaintiff after purchasing the property had made application for mutation of its name in the revenue records. The said application was rejected by the Tahasildar on the ground that the property -4- NC: 2024:KHC-D:10010 CRP No. 1038 of 2005 was a Trust property, constraining the respondent/plaintiff to file the suit.
4. Written statement to the suit was filed by the petitioner/defendant on 11.09.1995 denying the plaint averments and specifically raising the contention with regard to the jurisdiction of the Civil Court to try the suit on the ground that the petitioner/defendant is a Trust, registered under the BPT Act, Sections 79 and 80 of which expressly bars the jurisdiction of the Civil Court to try the suit and that it was only Assistant Charity Commissioner or the Charity Commissioner, who were competent to try the suit.
5. Based on the pleadings, the trial Court framed 11 issues on 16.06.1999. Issue No.6 was with regard to jurisdiction, which reads as under:
"Whether defendant proves that this Court has no jurisdiction to try this suit?"
6. The trial Court treated the said issue as a preliminary issue and for the reasons recorded in its order -5- NC: 2024:KHC-D:10010 CRP No. 1038 of 2005 dated 26.10.1999, the trial Court held that the Civil Court did not have the jurisdiction to try the suit, accordingly returned the plaint to the respondent/plaintiff to be presented before the jurisdictional Court. Aggrieved by the same, the respondent/plaintiff filed miscellaneous appeal in M.A.No.9/1999 before the first appellate Court. Considering the grounds urged, the first appellate Court framed the following points for its consideration:
"i. Whether the order of lower court is illegal, perverse, caprcious and not sustainable under law?
ii. What order?"
7. On re-appreciation of the impugned order dated 07.10.2005, allowed the said appeal setting aside the order dated 26.10.1999 passed by the trial Court. Being aggrieved by the same, the petitioner/defendant is before this Court.
8. This Court by order dated 28.06.2024 had issued Court notice to the respondent-Society. A communication dated 09.07.2024 is received from the Office of the Senior Civil Judge and JMFC, Hirekerur along -6- NC: 2024:KHC-D:10010 CRP No. 1038 of 2005 with the report of the process Nazir, stating that attempts to serve Court notice did not yield any result. That on an enquiry, it was learnt that respondent-Society has become defunct and non-existing and that there was no one operating in or on behalf of the respondent-Society. Accordingly, summons were returned un-served to this Court.
9. Learned counsel for the petitioner reiterating the grounds urged in the memorandum of petition submitted that the petitioner/defendant-Trust has been registered under the provisions of BPT Act. The subject property was gifted by one Basanagouda Ninganagoudar in term of the registered deed of gift dated 20.03.1962. The then Chairman of the petitioner/defendant-Trust had apparently entered into an agreement to sell the subject property in favour of the respondent-Society and in furtherance thereof, had executed deed of sale dated 10.05.1973. Thus, he submits that since the petitioner/defendant is a Trust, registered under the BPT -7- NC: 2024:KHC-D:10010 CRP No. 1038 of 2005 Act, any dispute with regard to property belonging to the Trust has to be determined and adjudicated only by the Charity Commissioner as provided under the BPT Act and jurisdiction of Civil Court is expressly excluded.
10. Counsel refers to Sections 50, 51 & 80 of the BPT Act. He submits that the trial Court, while adverting to issue No.6, which was treated as a preliminary issue, had rightly come to the conclusion by returning the plaint, to be submitted before the jurisdictional Court and that the first appellate Court could not have reversed the said order without adverting to the provisions of BPT Act, thus the order is perverse.
11. Counsel for the petitioner also submits that the BPT Act has been now repealed by virtue of Karnataka Hindu Religious Institutions and Charitable Endowments Act, 1997, however, the rights that have accrued prior to the repeal, are saved under Section 79 of the Act, 1997.
12. Heard. Perused the records.
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13. Sections 50, 51, 79 and 80 of The Bombay Pubic Trusts Act, 1950 reads as under:
"50. In any case- (i) .......,
(ii) .......,
(iii) ......,
(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 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 reliefs: --
(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 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:-9-
NC: 2024:KHC-D:10010 CRP No. 1038 of 2005 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.
51. (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 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 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 sub-section (1) the persons applying for such consent may file an appeal to the [Divisional 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."
79.(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 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.
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NC: 2024:KHC-D:10010 CRP No. 1038 of 2005
80. 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."
14. The present suit is filed by the respondent- Society seeking relief of declaration of its title in respect of the subject property and for relief of permanent injunction, restraining the petitioner/defendant from interfering with the subject property, preventing the respondent-Society from forming plots in the said land. Perusal of the provisions extracted hereinabove would indicate the prior permission of the Charity Commissioner under the BPT Act is mandatory, prior to alienation of the property belonging to Trust as well as prior to anyone seeking to raise any dispute with regard to the property. The trial Court had taken note of this aspect of the matter and had come to the conclusion that, as per Section 79 of the BPT Act, it was the Assistant Charity Commissioner or the Charity Commissioner who is vested with the authority to
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NC: 2024:KHC-D:10010 CRP No. 1038 of 2005 determine the controversy as to existence of Trust and the nature of the property.
15. Reversing the said finding and conclusion arrived at by the trial Court, the first appellate Court at paragraph 14 of its impugned judgment has held as under:
"14.xxxx a dispute between the parties involved in this suit is to find out whether there exists a dispute between the parties, whether or not a trust exist and such trust is a public trust or particular property is the property of such trust. If the above said dispute is existing in between the parties, then the said dispute is governed by the provisions of Sec.79 of the Bombay Public Trust Act and jurisdiction of the Civil Court is barred u/s.80 of the said Act.";
Further at paragraph 15, the first appellate Court has opined as under:
"15.On perusal of the pleadings of both the parties, I am of the opinion that the dispute existing in between the plaintiff and defendant is not whether or not the trust exist and such trust is a public trust or the suit property is the property of such trust. Plaintiff himself contended in his plaint that the suit property was belonging to the Vishaparihareshwara temple, Balambeed village. Thus, plaintiff has not taken up a contention that suit property was not the property of trust. Therefore, the dispute involved between the parties in this
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NC: 2024:KHC-D:10010 CRP No. 1038 of 2005 suit does not come within the ambit of the provisions of Sec.79 of the Bombay Public Trust Act. As such the jurisdiction of the Civil Court is not ousted u/s.80 of the said Act."
16. The said approach of the first appellate Court, as rightly pointed out by the counsel for the petitioner, is erroneous.
17. As noted above, Section 50 of the BPT Act mandates that prior consent of Charity Commissioner, as provided in Section 51 is condition precedent to institute a suit for any relief of declaration or injunction in favour of or against the Public Trust or Trustee or Beneficiaries. Section 80 of the BPT Act expressly bars the jurisdiction of the Civil Court to decide or deal with any question to be decided or dealt with by any officer or authority under the Act. Requirement of compliance under Sections 50 and 51 are such questions to be dealt and decided by the officer specified thereunder. This aspect of the matter has not been addressed to by the first appellate Court.
18. In view of the above, the following:
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CRP No. 1038 of 2005
ORDER
i. Petition is allowed.
ii. The order passed by the first appellate
Court, dated 07.10.2005 in M.A.No.9/1999 is set aside.
iii. The order passed by the trial Court dated 26.10.1999 in O.S.No.23/1979 is confirmed.
SD/-
JUDGE KGK/CT-ASC List No.: 1 Sl No.: 35