Madhya Pradesh High Court
Bisa Porwal Jain Shwetambar Tittha ... vs Shri Poonam Chand Through Legal ... on 16 June, 2025
Author: Pranay Verma
Bench: Pranay Verma
NEUTRAL CITATION NO. 2025:MPHC-IND:14039
1
IN THE HIGH COURT OF MADHYA PRADESH
AT I N D O R E
BEFORE
HON'BLE SHRI JUSTICE PRANAY VERMA
FIRST APPEAL No. 144 of 1998
BISA PORWAL JAIN SHWETAMBAR TIRTHA SANGODIYA
REGISTERD PUBLIC TRUST RATLAM THROUGH TRUSTEES
CHANDRA AND OTHERS
Versus
SHRI POONAM CHAND THROUGH LEGAL
REPRESENTATIVES SMT. SHAKUNTALA AND OTHERS
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Appearance:
Shri Veer Kumar Jain, learned Senior Advocate with Ms.Vaishali
Jain, learned counsel for the appellants.
Shri Ashok Kumar Sethi, learned Senior Advocate with Shri
Harish Joshi, learned counsel for the respondents.
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JUDGMENT
(Reserved on 19.02.2025) (Pronounced on 16.06.2025)
1. This appeal under Section 96 of the CPC has been preferred by Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 2 defendants No.1, 2, 3, 4, 6 and 7 being aggrieved by the judgment and decree dated 22.12.1997 passed in Civil Suit No.27-A/1996 by the Third Additional District Judge, District Ratlam whereby the claim of plaintiffs for declaration that the order passed by the Registrar, Public Trust declaring defendant No.1 Beesa Porwal Jain Shwetambar Tittha, Sagodhia as a registered public trust as illegal and for declaration has been decreed.
2. As per the plaintiffs, they are members of Jain Shwetambar Murti Poojak Samaj. Shwetambar Murti Poojak Jain Samaj has for sects. They are further sub-divided on the basis of social outlook and religious basis. Plaintiffs 1 and 2 belong to Oswal Sect Teenthui and Khatargachh Gut whereas plaintiff No.3 belongs to Dasa Oswal Charthui Sect. They are entitled to worship in Shwetambar Murti Poojak Jain Samaj temples. The owner of all movable and immovable properties of the temples is Shwetambar Murti Poojak Jain Samaj. In Gram Khetalpur in Ratlam City is Jain Shwetambar Temple of Rishbhdev deity and is popularly known as Sagodhia Jain Shwetambar Temple. This is the disputed property. Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 3
3. For constructing Sagodhia Jain Shwetambar Temple, Balwant Singh, ruler of Ratlam State had given Khemraj Bhojak, servant of Shwetambar Samaj, 15 Beegha 1 Bisva land in 1844 on Muafi. Khemraj Bhojak constructed the temple and a dharmshala and installed the deity of Shri Rishbhdev and in 1850 got installation ceremonies conducted for the deity. The temple, dharmshala and the land attached to it have been used by entire Jain Shwetambar Murti Poojak Samaj, who have been worshiping the deity installed in the temple. For augmenting the income of the temple the then ruler of Ratlam State Bherusingh had issued a Parwana in 1861 stating that shops which are put up in festival time would pay part of their income to the temple. Though land revenue had been fixed for land of the temple but since there was no income the Ratlam State included the land for resumption in 1894. Upon death of Khemraj, the management of the temple and its land was taken over by Shwetambar Murti Poojak Jain Samaj and Panch Porwal became the managers of the same who were believers of Teenthui. Since then the Panch of Porwal have remained the managers. After declaration of the land as resumed in 1894, total 11 Beegha 3 Bisva land remained Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 4 with the temple which was held by the temple, dharmshala and road. On 11.07.1905 the Panchan of temple made an application to the then ruler Sajjan Singh for exemption of land revenue. On 01.06.1910 the ruler passed an order exempting the land revenue over 11 Bigha 3 Bisva of land. The application had been made by Oswal Teenthui Samaj believers who were managing the temple. Beesa Jain Porwal Samaj has never been the owner of the temple or its land and has never been in management of the same.
4. The earlier Ratlam State had always treated the Jain temples as temples of Shwetambar Murti Poojak Jain Samaj. The dharmshala has been constructed by Shri Chandmal Lodha belonging to Oswal Samaj and railing has been constructed by Kankamal Chaudhary of the same Samaj. Though in development of temple Oswal samaj and Porwal samaj etc. have also contributed but from religious perspective only Charthui i.e. Charstuti Manyata Samaj is the owner of the temple and its land and has been in possession of the same. There are inscriptions in the temple showing it to be belonging to Shwetambar Murti Poojak Jain Samaj.
5. On 10.03.1969 defendants 2 to 6 belonging to Beesa Porwal Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 5 Jain Samaj made an application before the Registrar, Public Trust, Ratlam for registration of the disputed temple and its properties as a Public Trust under the provisions of M.P. Public Trust Act, 1951 (hereinafter referred to as "the Act, 1951". The applicationn was made on the basis of creation of a Trust in the name of Beesa Porwal Jain Shwetambar Tirth, Sagodhia. All the movable and immovable properties of the temple were sought to be declared as properties of Beesa Porwal Trust. On 09.05.1969 notification was made in the Official Gazette regarding the application. On coming to know of the application the plaintiffs filed an objection therein. The Sub Divisional Officer did not consider the objections of plaintiffs and declared title in the temple and its properties in favour of defendant No. 1 without affording opportunity of hearing to the plaintiffs and by taking advantage of their absence on one date of hearing. On that day evidence of defendants 1 to 6 was taken and the case was straight away fixed for orders and their application was allowed. The plaintiffs were not permitted to lead any evidence. His order is hence totally illegal and not binding upon plaintiffs. The Sub Divisional Officer had no right to declare title but has done so. The documents Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 6 have not been taken into consideration.
6. On such contentions the plaintiffs instituted an action for setting aside the order dated 31.03.1975 passed by the Sub Divisional Officer, for cancellation of registration of Public Trust in name of Beesa Porwal Jain Samaj, for declaration that the same is not binding upon them, for declaration that properties of Tirth Sagodhia temple belong to Shwetambar Murti Poojak Jain Samaj and for declaration that entire properties of Sagodhia temple being managed by Jain Shwetambar Murti Poojak Jain Samaj deserve to be registered as a Public Trust under the Act, 1951.
7. The defendants 1 to 4 and 6 contested the plaintiff's claim by filing their written statement submitting that in Ratlam there is no entity in the name of Shwetambar Murti Poojak Jain Samaj nor are plaintiffs its nominated members. The bifurcations as given by plaintiffs of Jain Murti Poojak Samaj are incorrect. The divisions as made by plaintiffs have no relevance with the temple. The disputed temple is quite old and since beginning its management has been with Beesa Porwal Samaj. No one of any religious belief has any connection with the same. Only by worshiping no one becomes Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 7 owner of the temple. The temple is of ownership of Beesa Porwal Samaj since hundreds of years and it has been managing the same and cultivating its land. Khemraj Bhojak had not obtained 15 Beegha land and constructed the temple and dharmshala. In 1910 patta of the land was given to Panchan Porwal by Ratlam State which shows that temple was quite old and land was given subsequently. The land was obtained by Porwal Samaj from the Government. Plaintiff's contention that management was given to Panchan Porwal by Shwetambar Jain Samaj is incorrect. In 1905 application which was given was on behalf of Porwal Samaj and order was passed in 1910 after hearing the Panch of Porwal Samaj. Since the temple and the land belong to Porwal Samaj they have rightly been registered as a Public Trust by the Registrar, Public Trust by rejecting the objections preferred by plaintiffs. The plaintiffs do not have any right to institute the suit. Necessary parties have not been impleaded. The suit is not under Section 8 of the Act, 1951. No permission under Section 92 of the CPC was obtained by plaintiffs prior to institution of the suit which is hence bad for the said reason. Though State has been impleaded as a party but notice under Section 80 of the CPC has not Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 8 been issued due to which the suit is also not maintainable against the Registrar, Public Trust.
8. By the impugned judgment the trial Court has held that plaintiffs have proved that the order dated 31.03.1979 passed by the Registrar, Public Trust is illegal, the same having been passed without conducting due and proper inquiry and in an illegal manner and is hence not binding upon Shwetambar Murti Poojak Jain Samaj. The temple belongs to Shwetambar Murti Poojak Jain Samaj and is known by the name of Shwetambar Jain Tirth, Sagodhia. The movable and immovable properties of the temple is owned by deity Rishbhdev and the entire Murti Poojak Shwetambar Jain Samaj has the right to its management. The Beesa Porwal Jain Shwetambar Samaj is not the owner of the temple and its properties. No permission was required from the Advocate General prior to institution of the suit which is hence not bad for not following the procedure under Section 92 of the CPC. The defendants have not proved that the suit is bad for non-issuance of a proper notice under Section 80 of the CPC. The plaintiffs have the right to institute the suit. On such findings the plaintiffs' claim has been decreed. Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 9
9. The learned Senior Counsel for defendants 1 to 4, 6 and 7 has submitted that the trial Court has erred in holding that Beesa Porwal Shwetambar Jain Samaj is not the owner of the temple and its properties and that the same is owned by Shwetambar Jain Murti Poojak Samaj. It has also erred in holding that the order dated 31.03.1975 passed by the Registrar, Public Trust registering Beesa Porwal Jain Shwetambar Tirth, Sagodia as a Public Trust is illegal. It should have been appreciated that the temple of deity Rishbhdev was constructed prior to 1850. The land belonging to the temple having an area of about 15 Beegha were earlier owned by Ratlam State. In 1844 they were given to Khemraj Bhojak by the then ruler of Ratlam State. Khemraj Bhojak was a Jain belonging to Porwal Samaj. He constructed the temple and handed over the same to Porwal Samaj. In 1850 the religious ceremonies for installation of the deity of Rishbhdev were performed. Since then, the Panchan of Porwal Samaj have been the owners and have been managing the temples and its properties. For registering the temple and its properties as a Public Trust belonging to Beesa Porwal Samaj a meeting of the Samaj was called pursuant to which an application was filed before the Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 10 Registrar, Public Trust which was allowed by order dated 31.03.1975 in which there is no illegality. It is further submitted that plaintiffs have not shown existence of any Shwetambar Murti Poojak Jain Samaj for it to have been held as the owner of the temple and its properties. Since the very inception till order being passed by the Registrar, Public Trust Porwal Samaj was managing the temple and its properties. Vide Ex.P/4 dated 14.05.1894 the temple and lands were given to Panch Porwal for management. The temple was existing at that time. Vide Ex.D/1, on application of Porwal Samaj order was passed on 26.06.1910. These documents are sufficient for proving the case of Beesa Porwal Samaj. No evidence has been brought on record by plaintiffs to prove that the temple, its dharmshala and other properties have been constructed by Shwetambar Jain Samaj. The adjoining land has been purchased by Beesa Porwal Samaj in 1960 vide sale deed Ex.D/2. Neither in the order Ex.P/1 nor Ex.P/5 is there any mention of Shwetambar Jain Samaj. The oral evidence of the parties particularly that of plaintiffs has not been considered in proper perspective.
10. It is further submitted that in a suit under Section 8 of Act, Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 11 1961 finding has to be recorded that plaintiff is the owner of the property which has not been done. Relief of possession was not claimed though plaintiffs are not in possession. Notice under Section 80 of the CPC was not given before filing of the suit which is a fatal defect which cannot be cured during pendency of the suit by issuing such a notice. Plaintiffs had not raised any objection before the Registrar, Public Trust on the application preferred by the defendants hence do not have any right to file a civil suit challenging the findings recorded by the Registrar, Public Trust. The claim was barred by time and ought to have been dismissed on that ground alone. The plaintiffs were participating in the proceedings hence had knowledge of the order. They cannot claim starting of the period of limitation from the date of publication of the order. Since plaintiffs are not claiming title in themselves, they cannot challenge the order passed by the Registrar, Public Trust since it is only a person who claims title in himself who can challenge such an order. Reliance has been placed on the decision of the Apex Court in State of Maharashtra and Another V/s. Chander Kant AIR 1977 SC 148, and of this Court in Asharam Dixit V/s. Harinarayan and Others Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 12 (2007) 4 MPLJ 251, Anoop Singh V/s. Thakur Nathoosingh 1972 MPLJ Short Note 106 and Beesa Porwal Jain Shwetambar Tirth Sagodhia and Others V/s. Poonamchand Mihirmal and Others 1981 JLJ 496. It is hence submitted that the appeal deserves to be allowed.
11. Per contra, learned Senior Counsel for plaintiffs has submitted that no ground has been raised in the appeal memo to challenge the findings recorded by the trial Court on issue No.1 to 3 hence the grounds as raised in the appeal do not require any consideration. However, from a persusal of the appeal memo it is seen that grounds have been so raised. It is further submitted that plaintiffs are very much persons interested in subject matter of the suit. They had submitted objections before the Sub Divisional Officer hence could very well file the suit. Only one plaintiff had not submitted such an objection but only for that reason the suit cannot be held not to be maintainable. The order was passed by the SDO on 31.03.1975. The same was published on 02.04.1975 and the suit was filed on 03.10.1975. The same is hence within time. In 1978 the Registrar, Public Trust was added as a party to the suit by the trial Court which Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 13 order was challenged by defendants before this Court in Civil Revision No.632/1978 which was dismissed by order dated 26.02.1981. In the meanwhile, notice had been issued on 05.04.1975 to the Registrar, Public Trust. On 23.12.1981 application had been filed by the Registrar for deleting his name from the array of cause title which was rejected. Civil Revision No.338/1982 challenging the said order was dismissed pursuant to which the Registrar was impleaded as a party on 27.02.1992. It is further submitted that the trial Court has upon a detailed appreciation of the evidence on record, both oral as well as documentary, categorically held that the temple and its properties belong to deity Rishbhdev and entire Murti Poojak Shwetambar Jain Samaj has the right of management of the same and that Beesa Porwal Jain Shwetambar is not the owner or the Manager of the temple. The findings being based on the evidence available on record cannot be interfered with. It is also submitted that the suit is essentially a suit under Section 8 of the Act, 1951 by plaintiffs in which the only question for consideration is as to whether the order of the Registrar is legal. The trial Court and this Court can go only into the legality of the order of the Registrar. The valuation of the Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 14 claim was made on the basis of the sale deeds in which there is no illegality. It is hence submitted that the appeal deserves to be dismissed.
12. I have considered the submissions of the learned counsel for the parties and have perused the record.
13. The primary question for consideration is as to whether the movable and immovable properties of the disputed temple are owned by deity Rishbhdev with entire Shwetamber Murti Poojak Jain Samaj being its Manager or whether they are exclusively owned by Beesa Porwal Jain Shwetambar Samaj. Though on behalf of both the parties oral evidence hhas also been led but a detailed perusal of the said evidence shows that the same is not of much help for determining the dispute. The existence of the disputed temple is stated to be since the year 1850 and the lands have also been dedicated to the temple prior to 1900. In such circumstances it is the documentary evidence which would be determinative of the matter. It may also be noted that the divisions and further bifurcations of Jain Samaj as have been projected in the suit are not of much relevance since plaintiffs claim the disputed temple and its properties to be of management of Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 15 Shwetambar Murti Poojak Jain Samaj whereas the defendants contend the same to be owned by Beesa Porwal Jain Shwetambar Tirth Sagodia. Both are distinct identities. It only has to be determined as to which of these entities has proved the claim as set up.
14. The oldest document produced by the plaintiffs is a photograph of deity Rishbhdev which has detailed inscription below the same. As per the same, it is of Samvat 1906 i.e. 1849 AD. Therein descriptions of various sects of Jain Samaj are mentioned. It shows that statue of the deity was installed by Khemraj for which reason his name was also recorded therein. There is no document prior to this document hence it is established that the statue of the deity was installed by Khemraj. In the inscription, name of Beesa Porwal Samaj as constructor of the temple was not stated nor was it stated that installation of the deity has been done by it. On the contrary it shows that the deity was installed by Khemraj on behalf of the entire Jain Samaj. The temple on its basis appears to be of the entire Jain Samaj and not of Beesa Porwal Samaj only.
15. In a compilation of Jain religious sites of the year 1953 the Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 16 temple of Sagodia has been mentioned at Page No.316 at serial No.172. It is stated that a temple of Jain Shwetambar Tirth of Rishbhdev deity at Sagodia is in existence. This shows that till 1953 at least the temple was known as temple of Jain Shwetambar Tirth Dham and not as a temple of Beesa Porwal Shwetambar Samaj.
16. In an account Ex.P/22 of the year 1963 as regards produce from the land kept by Onkarlal, the Manager, who is father of defendant No.1, Sagodia Jain Shwetambar temple is mentioned. Till that time also the temple was known as Sagodia Jain Shwetambar temple and not as temple of Beesa Porwal Shwetambar Samaj. Father of defendant No.1 was himself managing the temple. Had the temple been of Beesa Porwal Shwetambar Samaj, father of defendant No.1 would have certainly mentioned it as the owner in the account books of the temple. In receipt Ex.P/10 of the dharmshala of the year 1964 also Adinath Jain Shwetambar Dharmshala Tirth Sagodia is mentioned. This also proves the case of plaintiffs that the temple belongs to Shwetambar Jain Samaj.
17. Much reliance has been placed by learned counsel for defendants on the application Ex.P/4 and the order passed thereupon. Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 17 Application was made in the year 1894 on behalf of Panchan Porwal and order on the same was passed on 15.05.1894 as regards payment of land revenue. In the order it was stated that the ruler had given the land to the temple for religious use and the temple is of deity Rishbhdev. The application itself states Panchan Porwal to be the Managers of the temple but there is no mention that the temple belongs to Beesa Porwal Samaj. Ex.P/5 is an application of the year 1906. Therein the applicants have been stated as Panchan temple Jain Dharm Sagodia. It was made by the Panch belonging to the Jain Samaj for exemption from payment of land revenue. An order was passed in 1860 Ex.P/19 stating that whatever earning is made from a Mela to be held on the land of the temple, part of the same be given to temple of Sagodia. Ex.P/17 is a document of 1869 AD wherein certain question answers were made from the then Pujari in which he stated that the land has been given by the ruler for the temple established by Khemraj. In this document also there is no mention that the temple was got constructed by Porwal Samaj by its own funds or that the same is held by it. On 02.03.1910 application Ex.P/18 was made by Panchan of Temple Sagodia through Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 18 Kasturchand Porwal regarding exemption from payment of land revenue. The same was signed by three other persons but there was no mention that the same was signed by them as representatives of Beesa Porwal Samaj.
18. Ex.D/1 is an order of Ratlam State exempting payment of land revenue. Therein also there is no mention that the temple belongs to Beesa Porwal Samaj. The said fact was not even written in the application on which it was passed. Ex.P/6 is of the year 1912-13 which is a revenue record in which Panchan Porwal was recorded as Manager of the temple with Kesrinath as the owner. Ex.P/7 is the Jamabandi of the year 1956-57 in which also the same fact has been mentioned. Ex.P/20 is an order of the year 1897 regarding certain disputes between various factions of the Jain Samaj regarding putting up of photographs of deities. In that it has been mentioned that the Panch carry out the worship. Subsequent is an order of 1928 (Ex.P/21) in which it was held that the temple is a public temple and everyone has a right to worship in the same. In none of the aforesaid documents has it been stated that Beesa Porwal Samaj is the owner of the temple.
Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 19
19. From the entire documents which are available on record it is proved that the disputed temple is managed by Panch Porwal but the same belongs to Shwetambar Jain Murti Poojak Samaj. Merely by having the management of the temple, the Panch Porwal Samaj cannot claim ownership over the temple and its movable and immovable properties. There is not a single document on record to show that Beesa Porwal Samaj constructed the temple, installed the deity and the land was given to it for that reason. By merely being managers of the temple they would not have the right to stake claim of ownership over the temple and its properties. A manager would never become the owner. From the evidence it is amply established that temple of Rishbhdev at Sagodia belongs to Shwetambar Samaj and deity Rishbhdev is its owner. The same was constructed by Khemraj Bhojak with the help of the ruler. It was not constructed by Beesa Porwal Samaj. It is relevant to state here that plaintiffs do not have any objection to the present trustees, who are the defendants, managing the temple. Their objection is only as regards declaration of Beesa Porwal Samaj as the owner of the temple and its properties which is perfectly justified in the facts of the case. Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 20
20. The findings of the trial Court on issue No.1, 2 and 3 as regards ownership of the temple are hence based on the evidence on record and have not been shown to be illegal or perverse in any manner hence are hereby affirmed.
21. So far as legality of order dated 31.03.1975 passed by the Registrar, Public Trust is concerned it is observed that application under Section 4 of the Act, 1951 was made by the defendants in the year 1972-73. Thereafter publication was made inviting objections pursuant to which two of the plaintiffs filed their objections. The case was then being proceeded with and dates of hearings were being given normally after a month. The case was fixed for arguments on 25.07.1973 and in absence of both the parties the same was closed. Later on, upon appearance of defendants the same was restored to its number and continued to be fixed for arguments and counsel for both the parties kept appearing therein. The counsel for defendants kept seeking time for adducing evidence. On 22.03.1975 the plaintiffs were absent on which day itself evidence of one of the defendants was recorded and the case was fixed only after two days on which day two more witnesses were examined and the case was closed and Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 21 the final order was passed on 31.03.1975. Thus, within a period of 9 days evidence was recorded, arguments were heard and final order was passed. The same was apparently a deliberate hasty act on part of the Registrar. Though the case had continued to proceed at a normal pace but on 22.03.1975, on one date of absence of plaintiffs, the same was suddenly expedited and decided without affording them any opportunity to lead evidence. Their objections were also not taken into consideration while passing the final order. The same was hence apparently passed in violation of principles of natural justice.
22. Moreover, the defendants themselves had raised an issue before the Sub Divisional Officer that he is not duly authorized by the Collector for deciding the matter and request was made to him for seeking clarification and guideline from the Collector. This was for the reason that the Collector, who was the Registrar, Public Trust had only directed the Sub Divisional Officer to conduct inquiry in the matter. There was no order in writing passed by the Collector authorizing the Sub Divisional Officer to act as the Registrar, Public Trust as is mandatorily required under Section 34-A of the Act, 1951. From the proceedings of the Sub Divisional Officer himself it is Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 22 evident that there was no such order. The Sub Divisional Officer hence committed a gross illegality in passing the final order which is hence wholly without jurisdiction and has hence rightly been held illegal by the trial Court. In my view I am fortified by the decision of co-ordinate bench of this Court at Principal Seat, Jabalpur in M.A. 4917/2009 Praveen Malpani and another Vs. Mahendra Singh Gadeal and another decided on 15.02.2018 in which it has been held as under:
"6. Before dealing with the rival contentions of the parties, it is apposite to refer the relevant provisions of the Trust Act, which read as under: "Section 2(6). "Register" means the Registrar of Public Trust;" "Section 3. Register of Public Trust.- (1) The [Collector] shall be the Registrar of Public Trusts in respect of every public trust the principal office or the principal place of business of which as declared in the application made under Sub-section(3) of Section 4 is situate in his district; (2) The Registrar shall maintain a register of public trusts, and such other books and registers and in such form as may be prescribed." "Section 34-A. Delegation of powers by Registrar.- Subject to the provisions of this Act and to such restrictions and conditions, as may be prescribed, the Registrar may, by order in writing, delegate all or any of his powers and duties under this Act to any Revenue Officer of his district not below the rank of a Sub-Divisional Officer"
7. In the considered opinion of this Court, the point involved in this case is no more re integra. In Shri Deo Parasnathiji Mousuma Ghanshyam Budhu Singhai (Supra) this Court opined as under: "8. While interpreting a provision like section 34-A it must be borne in mind that statutory powers cannot be assigned without statutory authority to do so. It must, therefore, bear a strict construction. Now, that Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 23 section speaks of an "order in writing" by the Registrar of Public Trusts, delegating all, or any of his powers and duties under the Act. The words used obviously contemplate the making of a separate "order in writing" by the Registrar after due application of his mind, and not a mere administrative direction in the nature of a Distribution memo issued by a Deputy Commissioner (now the Collector) for allocation of revenue work within his district. There is a distinction between an order of delegation of certain statutory functions and the administrative power of allocating business of particular officers. Even assuming that a delegation of powers under section 34-A is an administrative function, nevertheless such delegation could not be achieved by the issue of a Distribution Memo for a variety of reasons. In the first place, the section speaks of the Registrar of Public Trusts and not the Deputy Commissioner of a district. Secondly, the making of an order in writing" has to be after due application of his mind, and, therefore, it is not a mere ministerial act. Thirdly, issuance of a Distribution memo implies the existence of a power in several persons, and it merely allocates the work for administrative convenience, while a delegation under section 34-A results in conferral of jurisdiction on a particular officer in respect of functions of a judicial nature. In my view, when section 34-A speaks of an "order in writing", it implies the making of a general or special order by the Registrar of Public Trusts in his capacity as such, which must clearly define the nature of the functions that are assigned thereby." [Emphasis Supplied]
8. The question of delegation of power through the work distribution order was again considered by the Division Bench of this Court in M.P. No.1209/1991 [Smt. Buddhibai vs. Registrar Public Trust-cum-SDO & others]. The relevant portion reads as under: "As in the present case, the impugned order was passed by SubDivisional Officer the main ground of attack made in this petition is that there was no delegation of power in favour of the Sub-Divisional Officer and, therefore, the impugned order passed by him as Registrar of Public Trust is illegal and without jurisdiction. Considering this argument on behalf of the petitioner at the time of hearing of this petition on 19.04.19921, this Court was pleased to adjourn the hearing of the case so as to enable the learned Addl Adv. Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 24 General appearing on behalf of the respondent No.1 to show whether the Registrar had delegated his power under section 34-A of the M.P. Public Trusts Act and on what ground. Today the learned Dy. Adv. General appearing on behalf of the respondent No.1 as also the learned counsel appearing for respondents No.2 & 3 admitted that except a distribution memo, there was no delegation of powers made in accordance with section 34-A of the Act. We are, therefore, of the view that on this short ground this petition deserves to be allowed and the impugned order dated 13.03.1991 (Annexure-P-3) of the respondent No.1 deserves to be quashed. Accordingly, this petition is hereby allowed. The impugned order dated 13.03.1991 (Annexure-P3) is quashed." [Emphasis Supplied]
9. The same principle was laid down in M.P. No.1714/1992 [Ramnarayan Tiwari vs. The Sub-Divisional Officer & others]. The relevant portion reads as under: "In this connection, learned counsel for the petitioner has drawn my attention to Section.3 of the M.P. Public Trust Act, 1951 which inter alia provides that the Collector shall be Registrar of the Public Trust. My attention has been further drawn to Section 34(A) of the Act which provides for delegation of the power by Registrar to any Revenue Officer of the district not below the rank of Sub-Divisional Officer. In the present case, it has been averred by the petitioner that no such delegation has been made by the Registrar and on the basis of distribution memo respondent No.1 has exercised the power. This fact has not been controverted by respondents. It is submitted by learned counsel for the petitioner that on the basis of distribution memo the Sub-Division Officer cannot exercise the power and in support of the aforesaid submission, learned counsel place reliance on judgment of this Court in Shri Deo Parasnathji Mousuna Ghanshyam vs. Firm Kanhaiyalal, 1972 MPLJ 206. Mr. Kale could not point out anything to distinguish the aforesaid authority. In view of the authority of this Court, referred to above, the Sub-Divisional Officer cannot exercise the power on the basis of the distribution memo. Admittedly, respondent No.1 has passed the order on the basis of the distribution memo issued by the Collector, which will not confer jurisdiction on him and on this ground alone, the order impugned is fit to set aside and I do so accordingly." [Emphasis Supplied] Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 25
10. These judgments were again considered by this Court in W.P. No.1230/2002 [Dr. M.K. Bhargava & others vs. Smt. Parmeshwari Devi Indra Kumar Trust] decided on 13.04.2010. The ratio decidendi of aforesaid judgments was again followed by this Court by holding that "in the case at hand admittedly the Sub-Divisional Officer was discharging as 'Registrar Public Trust' on the basis of distribution memo by the Collector and not by virtue of any written order by the Registrar as contemplated under Section 34-A of the Trust Act, 1951. Thus, the Sub-Divisional Officer acted without jurisdiction and the order passed in such capacity on an application under Section 14 of the Trust Act, 1951 is a nullity in the eyes of law. Accordingly, the impugned orders dated 15.01.2001 and 22.02.2002 are hereby set aside and it is held that the distribution memo dated 04.05.1993 did not confer any jurisdiction in favour of the SubDivisional Officer under the Public Trust Act, 1951".
11. The aforesaid judgments contains a common string which clearly lays down that the delegation of power under Section 34-A cannot be done in a routine manner. The specific order must be in writing and should be passed after proper application of mind. The power cannot be delegated through a work distribution order. I am bound by the aforesaid Single and Division Bench judgments in which aforesaid principle was laid down. So far the judgment of Umedi Bhai (Supra) on which reliance is placed by Mr. Rahul Mishra, learned G.A. is concerned, a plain reading of this judgment shows that this Court has merely held that under Section 34-A, the Registrar is further authorized to delegate all or any of his power and duty under this Act to any revenue officer of his district not below the rank of Sub-Divisional Officer. It is relevant to mention here that in this judgment the method and nature of delegation required was not subject matter of challenge. There is no quarrel between the parties that the Collector is competent to delegate the power to another officer in consonance with Section 34-A of the Act. The only question is regarding the manner and method of such delegation of power. Thus, the judgment of Umdi Bhai (Supra) is of no assistance to the other side.
12. In view of aforesaid analysis, I have no scintilla of doubt that the Court below has committed an error of law in Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 26 not following the ratio decidendi of the judgments of this Court right from the case of Shri Deo Parasnathji Mousuma Ghanshyam Budhu Singhai (Supra). The finding given in the impugned judgment (para 8 to 10) cannot sustain judicial scrutiny. In the result, the orders dated 23.09.2009 & 01.06.2009 are set side. I deem it proper to follow the course adopted by this Court in the case of Ramarayan Tiwari (Supra) and accordingly the Collector, Registrar of Public Trust is directed to decide the matter afresh within three months' from the date of receipt of copy of this order. However, it will be open to the Collector to delegate his power to any other competent authority in consonance with Section 34-A of the Act.
13. With aforesaid directions, the appeal is allowed. No Cost."
23. It has further been contended by learned counsel for defendants that the suit is bad for non-compliance of provisions of Section 92 of the CPC. The said provision is as under :
"92. Public charities.--(1) In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the Court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the 4 [leave of the Court,] may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or in any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subjectmatter of the trust is situate to obtain a decree :-- (a) removing any trustee; (b) appointing a new trustee; (c) vesting any property in a trustee; 5 [(cc) directing a trustee who has been removed or a person who has ceased to be a trustee, to deliver possession of any trust property in his possession to the person entitled to the possession of such property]; (d) directing accounts and inquiries; (e) declaring what proportion Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 27 of the trust property or of the interest therein shall be allocated to any particular object of the trust; (f) authorizing the whole or any part of the trust property to be let, sold, mortgaged or exchanged; (g) settling a scheme; or (h) granting such further or other relief as the nature of the case may require. (2) Save as provided by the Religious Endowments Act, 1863 (XX of 1863), 6 [or by any corresponding law in force in 7 [the territories which, immediately before the 1st November, 1956, were comprised in Part B States]], no suit claiming any of the reliefs specified in sub-section (1) shall be instituted in respect of any such trust as is therein referred to except in conformity with the provisions of that sub-section. 8 [(3) The Court may alter the original purposes of an express or constructive trust created for public purposes of a charitable or religious nature and allow the property or income of such trust or any portion thereof to be applied cy pres in one or more of the following circumstances, namely:-- (a) where the original purposes of the trust, in whole or in part:-- (i) have been, as far as may be, fulfilled; or (ii) cannot be carried out at all, or cannot be carried out according to the directions given in the instrument creating the trust or, where there is no such instrument, according to the spirit of the trust; or (b) where the original purposes of the trust provide a use for a part only of the property available by virtue of the trust; or (c) where the property available by virtue of the trust and other property applicable for similar purposes can be more effectively used in conjunction with, and to that end can suitably be made applicable to any other purpose, regard being had to the spirit of the trust and its applicability to common purposes; or (d) where the original purposes, in whole or in part, were laid down by reference to an area which then was, but has since ceased to be, a unit for such purposes; or (e) where the original purposes, in whole or in part, have, since they were laid down:-- (i) been adequately provided for by other means, or (ii) ceased, as being useless or harmful to the community, or (iii) ceased to be, in law, charitable, or (iv) ceased in any other way to provide a suitable and effective method of using the property available by virtue of the trust, regard being had to the spirit of the trust.]"Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01
NEUTRAL CITATION NO. 2025:MPHC-IND:14039 28
24. In this regard it is observed that the suit was filed by plaintiffs challenging the order dated 31.03.1975 passed by the Sub Divisional Officer registering defendant No.1 as a Public Trust and for declaration that the temple and its properties are of ownership of deity Rishbhdev and the entire Murti Poojak Shwetambar Jain Samaj has right of management of the same. Section 92 of CPC is in respect of breach of express or constructive Trust created for public purpose of a charitable or a religious nature or where direction of the Court is deemed necessary for administration of any such Trust. It is in that event only that the Advocate General comes into picture and permission is required. However, the present suit is for declaration that the order passed by the Sub Divisional Officer registering a Public Trust is itself illegal and for further consequential reliefs. It is not a case alleging any breach of express or constructive Trust already created for public purpose or a case where direction of the Court is necessary for administration of any such Trust. The scope of the suit is entirely different hence there was no requirement for plaintiffs to comply with the provisions of Section 92 of the CPC. Moreover, it has been held by the Apex Court in Parag Das Ji Guru Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 29 Bhagwandas Ji V/s. Ishwarlal Bhai, Narsingh Bhai and Others AIR 1952 SC 143 that under Section 92 of the CPC only those suits would be included where a declaration is sought that a property is a property of the Trust. The same is not the case in the present matter. The suit is essentially under Section 8 of the Act, 1951 and it has been held by this Court in Swami Indradev Aanand Guru Swami Ji Parmanand Ji V/s. State of M.P. and Others AIR 1977 MP 102 that in such a suit compliance of Section 92 of the CPC is not required. In Harendranath Bhattacharya and Others V/s. Kaliramdas (dead) through LRs AIR 1972 SC 246 it has been held that when there is no allegation as regards the properties of the Trust the provisions of Section 92 of the CPC are not attracted. The trial Court has hence correctly held that the suit is not bad for non compliance of provisions of Section 92 of the CPC.
25. A ground has also been raised that leave of the Court under Order 1 rule 8 of the CPC was not sought for. Howevere, from the order sheets of the trial Court it is seen that permission under Order 1 Rule 8 of the CPC for instituting the suit in a representative capacity was taken by plaintiffs on 24.04.1978 which was reaffirmed by order Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 30 dated 30.04.1982. It hence cannot be said that the suit was instituted by the plaintiffs without seeking leave of the Court.
26. Though it has been further contended by learned counsel for the defendants that a person not raising any objection before the Registrar, Public Trust is not competent to file a civil suit but it is observed that two of the plaintiffs had filed their objections before the Registrar and had participated in the proceedings. It hence cannot be said that the suit has been filed by persons who had not raised any objection before the Registrar. Only for the reason that one of the plaintiffs had not raised such objection, the suit cannot be held to be not maintainable when objection was raised by other two plaintiffs. Furthermore under Section 8 of the Act, 1951 findings of the Registrar under Section 6 can be challenged by any person having interest in a Public Trust or any property found to be Trust property. The plaintiffs have categorically stated themselves to be having interest in the Public Trust and from the record it is well established that they are having such an interest. It is not necessary that persons who are claiming title in themselves can only file a civil suit to challenge the findings of the Registrar. There is no such requirement Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 31 envisaged under Section 8 of the Act,1951. This ground also has no force.
27. It has been further contended that the suit was barred by time. In this regard it is observed that the order was passed by the Registrar, Public Trust on 31.03.1975. The same was published on 02.04.1975 on the office board of the Registrar. The period of limitation of six month as provided under Section 8(1) of the Act, 1951 began from that day and ended on 02.10.1975 which was a public holiday on account of Gandhi Jayanti. The suit was filed on the very next day i.e. 03.10.1975 which was hence within the prescribed period of limitation and has rightly been held to be within time by the trial Court.
28. A ground has also been raised as regards non-compliance of provisions of Section 80 of the CPC contending that prior to impleadment of Registrar, Public Trust notice was not issued. A perusal of the record of the trial Court shows that without issuance of any notice plaintiffs had impleaded Registrar, Public Trust as a party. Thereafter by order dated 24.04.1978 it was permitted to be deleted from the array of cause title of the suit. By order dated 24.02.1981 Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 32 passed in Civil Revision No. 632 of 1978 and Civil Revision No. 633 of 1978, the said order was set aside with an observation that the Trial Court has to proceed in terms of Section 8(2) of the Act, 1951 which is as under :
"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."
29. In compliance of the aforesaid order, by order dated 27.07.1981 the Trial Court directed for issuance of notice to the State of M.P. through the Registrar, Public Trust which was duly served upon it. Thereafter objection was raised by the Registrar, Public Trust to the effect that he does not wish to be impleaded as a party to the suit. Plaintiffs then filed an application for deletion of his name which was rejected by the trial Court by order dated 23.12.1981. By order dated 16.07.1986 passed in Civil Revision No. 338 of 1982 this Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 33 Court permitted the plaintiffs to withdraw their application for deleting the name of the Registrar, Public Trust as a defendant to the suit in compliance of which on 22.07.1992 the Registrar, Public Trust was again impleaded as a party to the suit.
30. In the meanwhile, on 05.04.1985 notice under Section 80 of the CPC Ex.P/23 was issued by the plaintiffs to the Collector and the Registrar. The chronology hence shows that initially the Registrar was impleaded as a party but was deleted but in compliance of order passed by this Court, he was again impleaded as a party. Notice to the State Government was issued through him by the Trial Court in compliance of order passed by this Court hence it cannot be said that there has been any technical fault on part of plaintiffs in compliance of provisions of Section 80 of the CPC. This ground raised by the defendants is also of no avail to them.
31. It is relevant to state here that the suit instituted by the plaintiffs is under Section 8 of the Act, 1951 and as per Section 8(2) it is the Court which is required to give notice to the State Government through the Registrar and it is for the State Government if it so desires to be made party to the suit. The duty of giving notice Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 34 to the State Government through the Registrar is of the Court itself and not of the plaintiffs hence if there is any defect as regards giving of notice to the State Government the same would be on part of the Court and not the plaintiffs. In any case notice to the State Government through the Registrar was served by the Trial Court in compliance of order passed by this Court hence this issue pales into insignificance.
32. The ground raised as regards valuation and payment of Court fee by the defendants is wholly frivilous and does not merit even a cursory advertance and is hereby rejected.
33. Thus, in view of the aforesaid discussion, all the grounds as have been raised by the defendants for challenging the impugned judgment passed by the trial Court are found to be devoid of any merits and are consequently rejected. Consequently, the judgment and decree passed by the trial Court is affirmed as a result of which the appeal is dismissed. However there shall be no order as to costs.
(PRANAY VERMA) JUDGE ns Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01 NEUTRAL CITATION NO. 2025:MPHC-IND:14039 35 Signature Not Verified Signed by: NEERAJ SARVATE Signing time: 16-06-2025 19:06:01