Bombay High Court
Govind Maharaj Sansthan Thro. Its ... vs Shri. Vithal Mandir Thro. Its Trustee ... on 16 January, 2019
Author: Vibha Kankanwadi
Bench: Vibha Kankanwadi
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
913 SECOND APPEAL NO.416 OF 2018
Govind Maharaj Sansthan
A Registered Public Trust
Pimpalgaon Hareshwar,
Tal. Pachora Dist. Jalgaon
Through its President. ..Appellant.
Versus
1) Shri. Vithal Mandir
A registered Public Trust
Through its Trustee and Archak
Shri. Tukaram Onkar Patil,
Age 82 years, occupation Archak,
R/o: At Post. Pimpalgaon
Hareshwar, Tal. Pachora
Dist. Jalgaon.
2) Grampanchayat, Pimpalgaon
Hareshwar Tal. Pachora
Dist. Jalgaon.
Through its Secretary/Sarpanch. ..Respondents.
...
Advocate for Appellant : Mr. Brahme Shailesh P. & A.R. Syed
Advocate for Respondent No.1 :Mr. Talhar Ajay G.
Advocate for Respondent No.2 : Mr. S. B. Bhosale.
...
CORAM : SMT.VIBHA KANKANWADI, J.
DATE : 16-01-2019.
ORAL ORDER :
1) Present appeal has been filed by the original defendant challenging the Judgment and decree dated 05-02-2018 passed by ::: Uploaded on - 17/01/2019 ::: Downloaded on - 18/01/2019 06:53:40 ::: 2 SA 416-2018 learned Principal District Judge, Jalgaon in Regular Civil Appeal No. 147 of 2016, reversing the Judgment and decree dated 22-08-2016 passed in Regular Civil Suit No. 05 of 2012, by learned Civil Judge, Junior Division, Pachora, Dist. Jalgaon. The parties are addressed with the nomenclature before the trial Court.
2) Plaintiff had filed the suit initially for declaration of ownership, however thereafter amendment was carried out and then it was specifically contended that the possession of the suit property has been forcibly taken on 27-02-2012, and therefore, the possession with the mesne profits was also claimed. There were in fact three properties in respect of which the suit was filed. The plaintiff trust came to be registered on 21-11-2013 and it was contended that, the temple of Lord Vitthal is in existence since more than 314 years. Sanad was issued to the then trustee Shri. Totaram Maharaj on 18- 09-1879. Thereafter he stated that, the plaintiff trust is run through sole trustee. He is the ancestor of original trustee Shri. Totaram. It was also stated that, the defendant No.1 trust was registered on 09- 12-1958, however it has no connection, right, title or even interest in the suit property. One of the trustee of defendant No.1 trust was also Sarpanch of the village Pimpalgaon where the properties are ::: Uploaded on - 17/01/2019 ::: Downloaded on - 18/01/2019 06:53:40 ::: 3 SA 416-2018 situated. He got resolution No.17 passed on 21-12-1976, behind the back of the plaintiff to register the suit property in the name of defendant No.1 trust. In fact plaintiff had not sold the suit property to the defendant No.1 trust. The city survey was made applicable to the village in 1979 but because of the illegal resolution, the name of the defendant No.1 continued to the suit property. Thereafter, there was an attempt by the defendant No.1 by filing change report bearing Inquiry Application No.326 of 1988 under Section 22 of the Bombay Public Trust Act (hereinafter referred to as 'BPT Act' for the sake of brevity) to get the property registered in the name of the defendant No.1. It was objected by the plaintiff and after inquiry learned Assistant Charity Commissioner allowed the said application on 30-11-1992. The said decision was challenged by the plaintiff, its appeal was dismissed. Thereafter, he preferred appeal before District Court, which came to be allowed, and thereafter, present appellant came before this Court in Second Appeal No.475 of 2000, and it came to be allowed on 02-08-2011. In the said Judgment, this Court had given liberty to the plaintiff to file suit for declaration of title, and therefore, the suit has been filed.
3) The claim of the plaintiff was resisted by the defendant No.1 ::: Uploaded on - 17/01/2019 ::: Downloaded on - 18/01/2019 06:53:40 ::: 4 SA 416-2018 by filing written statement at Exhibit 16. Preliminary objections were taken that, the necessary permissions under the authority of Charity Commissioner under Section 50 and 51 of the BPT Act have not been taken. The defendant claimed to be the owner of the property. Other contents of the plaint claiming ownership were denied. It was specifically stated that, the construction in the suit property was carried by the defendant No.1. It has been contended that, the plaintiff has taken disadvantage of the order passed by this Court and filed a false suit.
4) Parties went to trial after the issues were framed. The suit came to be dismissed. Original plaintiff filed Regular Civil Appeal 147 of 2016. It appears that, cross objections were also raised by the defendant No.1 in respect of those findings which were given against it. After hearing both parties, the appeal has been allowed. The plaintiff has been declared to be the owner of the property and also entitled to have the possession of the same, thereby the suit was decreed. There is no specific order of dismissal of the cross objections, however that can be presumed. Hence, the said decree is under challenge in this second appeal.
5) Heard learned advocate Mr. S. P. Brahme for appellant, learned ::: Uploaded on - 17/01/2019 ::: Downloaded on - 18/01/2019 06:53:40 ::: 5 SA 416-2018 advocate Mr. A. G. Talhar for respondent No.1 and learned advocate Mr. S. B. Bhosale for respondent No.2.
6) It has been submitted vehemently on behalf of the present appellant - original defendant No.1 that, the learned First Appellate Court has not considered that the suit was bad for want of permission under Section 50 and 51 of BPT Act. He has taken me through both the sections and also submitted that, though the point has been dealt with by the learned First Appellate Court, the learned Appellate Court went on the footing that the defendant No.1 is a trespasser. The fact that was on record by way of admission of the plaintiff that the construction of the suit property was made by the defendant No.1 was not taken into consideration. So also the fact that the property stood in the name of defendant in the PTR extract. Therefore, even though the trial Court had also of the same view and First Appellate Court was also of the view that the suit is not barred for want of permission, that point is required to be considered taking into consideration the fact that the defendant No.1 was claiming ownership and cannot be said to be a rank trespasser. He also submitted that, the point of limitation has not been properly considered. He also tried to point out that, when it was the fact of ::: Uploaded on - 17/01/2019 ::: Downloaded on - 18/01/2019 06:53:40 ::: 6 SA 416-2018 ownership that was in question, then Section 80 of the BPT Act creates a bar. He therefore, relied on decision in Church of North India Versus Lavajibhai Ratanjibhai, reported in AIR 2005 SC 2544, wherein it was observed that, "The BPT Act is a special law and it confers jurisdiction upon the Charity Commissioner and other authorities named therein. The statute has been enacted by the Parliament in public interest to safeguard the properties vested in the trusts as also control and management thereof so that the trust property may not be squandered or the object or purport for which a public trust is created may not be defeated by the persons having control thereover."
Further it was observed that, "The principle enunciated in each of the decision laid down relate to the fact-situation obtaining therein. In each case indisputably the lis arose for determination of a question relating to interpretation of one or the other clause enumerated in different provisions of the BPT Act which come either within the exclusive jurisdiction of the statutory authorities or otherwise. The Civil Court will have no jurisdiction in relation to a matter whereover the statutory authorities have the requisite jurisdiction. On the other hand, if a question arises, which is outside the purview of the Act or in relation to a matter, unconnected ::: Uploaded on - 17/01/2019 ::: Downloaded on - 18/01/2019 06:53:40 ::: 7 SA 416-2018 with the administration or possession of the trust property, the Civil Court may have jurisdiction." Therefore, the learned advocate for the appellant submitted that, the point of jurisdiction is also required to be gone into. Though it may not have been formulated as a substantial question of law by him still he can orally submit for formulation of point on that aspect.
7) The learned advocate appearing for the respondent No.1 submitted that, both the Courts below have given a concurrent finding that, the suit is not bad for want of permission under Section 50 and 51 of the BPT Act, and therefore, this Court should slow in framing any substantial question of law on that point. He also submitted and drew my attention to the order passed by this Court in Second Appeal No.475 of 2000 wherein it was observed that, "Needless to say at bar that the respondent Vitthal Sansthan is entitled to file a Civil Suit for declaration of title."
That means, permission was given to file the suit, and therefore, there is no question now for obtaining any permission under Section 50 and 51 of the Bombay Public Trust Act. He also submitted that, the plaintiff had come with the specific case and filed documents on record to show that the temple is in existence since more than 314 ::: Uploaded on - 17/01/2019 ::: Downloaded on - 18/01/2019 06:53:40 ::: 8 SA 416-2018 years and it was in possession of the predecessor of the plaintiff and the trust is managed by basically by inheritance. One of the turstee of the defendant No.1 who was Sarpanch has exceeded his jurisdiction and without notice to the plaintiff recorded the property by way of resolution to the Grampanchayat record and it has created problem. The attempt by the defendant No.1 to get the property mutated in their name has been challenged, and therefore, the declaration suit in view of the order of this Court was filed. The learned First Appellate Court has considered the entire evidence and has also dealt with all the legal points, therefore, no substantial question of law has been made out by the appellant.
8) Taking into consideration submissions of both the sides, it is to be noted that, when the trial Court has dismissed the suit and specifically the finding in respect of issue No.1 regarding title has been answered in the negative but the same has been answered in the positive by the First Appellate Court. There are no consistent findings or there is no concurrent decision on the said point. Therefore, it is definitely required to be gone into. Preliminary objections were raised in respect of permission under Section 50 and 51 of the BPT Act. For that purpose, the question is also required to ::: Uploaded on - 17/01/2019 ::: Downloaded on - 18/01/2019 06:53:40 ::: 9 SA 416-2018 be considered whether the appellant can be said to be a rank trespasser. Unless this question is answered, we may not be able to get answer to the question whether the suit is bad for non-joinder of permission. No specific issue was framed by both the Courts below but it is formulated in other words that is the issue No.4 of the trial Court and point No.3 before the First Appellate Court which is in respect of taking the possession of the suit property illegally by defendant No.1 on 27-02-2012. It is to be noted that, we are also required to consider the position prior to 27-02-2012. Therefore, definitely that is a substantial question of law that is required to be answered. So also as regards declaration of ownership is concerned where there would be bar to the suit under Section 80 of the BPT Act. Therefore, the second appeal is admitted. Following substantial questions of law are framed ;
i) Whether the lower appellate Court is justified in reversing the Judgment and decree passed by the trial Court in Regular Civil Suit No.05 of 2012 when the suit filed by the respondent No.1 was not tenable for want of previous sanction under Section 50 of Maharashtra Public Trust Act and the previous permission was necessary considering the relief of declaration and nature of the controversy involved in the matter pertaining to the two registered trust ?
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10 SA 416-2018
ii) Whether the suit filed by the respondent No.1 was tenable because in view of O.31 R.2 of the Code of Civil Procedure, all the trustees of the appellant numbering 15 were necessary parties and were not joined as a parties to the suit despite raising the objection ?
iii) Whether the suit filed by the respondent No.1 is bad for not joining Charity Commissioner as party as contemplated by Section 51 (3) of the Maharashtra Public Trust Act and in view of the peculiar nature of controversy regarding the status of the trust properties ?
iv) Whether the judgment and decree passed by the lower appellate Court is sustainable in law when the respondent No.1 failed to produce any documents of title regarding suit property ?
v) Whether the appellant can be said to be a rank trespasser ?
vi) Whether the Courts below failed in exercising the jurisdiction to entertain the suit without considering the specific bar of jurisdiction under Section 80 of BPT Act ?
(SMT. VIBHA KANKANWADI) JUDGE vjg/-.
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