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[Cites 5, Cited by 2]

Gujarat High Court

Ladhiben Alias Manekbhai Prththvigar ... vs Trustees Of Machhu Kathiya Chaturvedi ... on 23 October, 2019

Author: G.R.Udhwani

Bench: G.R.Udhwani

            C/SA/64/2019                                                  ORDER



            IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
                     R/SECOND APPEAL NO. 64 of 2019
                                 With
               CIVIL APPLICATION (FOR STAY) NO. 1 of 2018
                    In R/SECOND APPEAL NO. 64 of 2019
==========================================================
 LADHIBEN ALIAS MANEKBHAI PRTHTHVIGAR GOSAI SINCE DECEAED
             THRU L/R JAYABEN RAMNIKGAR GUSAI
                           Versus
  TRUSTEES OF MACHHU KATHIYA CHATURVEDI MODH BRAHAMAN
                 GYANTI BHUJ THRU TRUSTEES
==========================================================
Appearance:
MR KIRTIDEV R DAVE(3267) for the Appellant(s) No. 1
for the Respondent(s) No. 1,3,3.1,3.2
NOTICE SERVED(4) for the Respondent(s) No. 1.1,1.2,1.3,1.4,2,4
==========================================================
 CORAM: HONOURABLE MR.JUSTICE G.R.UDHWANI
Date : 23/10/2019
ORAL ORDER

The appeal under Section 100 of the Code of Civil Procedure seeks to assail the judgment and decree dated 15/10/2018 rendered by the learned Additional District Judge, Bhuj­Kachchh in Regular Civil Appeal No.130 of 2005 confirming the judgment and decree of possession rendered in Special Civil Suit No.164 of 1998 by the learned 2nd Joint Civil Judge (SD), Bhuj­Kachchh on 28/02/2003.

2. Following substantial questions of law have been framed by the appellant:

a) Whether the Courts below have failed to consider sec.50(ii) of the Bombay Public Trust Act ?
b) Whether the Courts below have failed to take into account Section 51(3) of the Bombay Public Trust Act?
c) Whether the Courts below have committed serious error of jurisdiction in applying provisions of Rent Act in ordinary Civil Suit?
d) Whether the First Appellate Court has committed serious error of law and jurisdiction in not following O.41 R.31 of the CP Code?
e) Whether the Courts below have failed to appreciate evidence before them and that has caused serious prejudice to the appellant?
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f) Whether the Court below have failed to consider that the suit is not maintainable in its present form and nature?

3. On Consideration of the submissions made by the learned Counsel for the appellant and perusal of the impugned judgment and decrees, it is required to be determined whether the above­referred substantial questions of law arise in the case.

4. The suit property is a trust property and one Shankerkar was a Pujari in the temple under the administration of the trust. He left the job and inducted his sister, the present appellant as Pujari, who unsuccessfully attempted to create a trust under her name, where she failed in the litigation in this High Court. There were no further proceedings against the said litigation.

4.1 With the pleadings that the suit property is the trust property and the appellant is a trespasser and that the appellant has unlawfully raised the construction and has rented out two shops comprised in the suit property to the original defendant Nos.2 and 3, the suit seeking possession was filed; where­from this appeal arises.

5. The first question, in the opinion of this Court, is answered in Malek Chittu Rasul v. Pathan Mahmadkhan Kalukhan [1966 GLR 1011]. This Court in that case considered the unamended Section 50 and 51 of the Bombay Public Trusts Act.

Insofar as the dispute herein is concerned, the amendment does not matter and the provision insofar as it refers to the recovery of the possession of the trust property, is Page 2 of 7 Downloaded on : Fri Oct 25 21:23:45 IST 2019 C/SA/64/2019 ORDER perimateria with the amended provision. This Court interpreted Section 50 in paragraph 2 thus:

"2. The trial Court held that permission was necessary and the first appellate Court held that it is not necessary. In order to decide this question, we are materially concerned with the interpretation of Section 50 of the Bombay Public Trusts Act, 1950, which will hereinafter be referred to as the Act. In a sense, Section 50 of the Act provides that in certain cases a suit can be filed by the Charity Commissioner or two or more persons having an interest in the trust and having obtained the consent in writing of the Charity Commissioner for any of the reliefs specified in the said section. The section then enumerates the reliefs for which the suit can be filed. In other words, the section consists of three parts with the proviso at the end. The first part enumerates the conditions under which the section would come into operation. Then the section provides that where these conditions apply, a suit can be filed by certain persons for certain specified reliefs including the relief for an order of recovery of possession of trust property. Then the proviso reads as follows:
"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."

We have first to see whether the conditions in the first part of Section 50 of the Act are applicable, viz: (i) where it is alleged that there is a breach of a public trust, (ii) where a declaration is necessary that a particular property is a property belonging to a public trust or where a direction is required to recover the possession of such property or the proceeds thereof or for an account of such property or proceeds from any person including a person holding adversely to the public trust, or (iii) where the direction of the Court is deemed necessary for the administration of any public trust. The first clause does not apply in this case. The question is whether in this case a direction is required to recover the possession of the property belonging to the public trust. Ordinarily speaking, when a suit is filed in a Civil Court for the recovery of a trust property, a direction is required to recover the possession of such property. Perhaps, we can say that when persons interested in the trust and who are not trustees want to file a suit, then they might go to the Charity Commissioner and ask for a direction to file a suit for recovering possession of the property. Ordinarily speaking, therefore, the conditions specified in the first part of the section (Section 50 of the Act) apply to a case where persons who are not the trustees want to file a suit to recover possession of the property of the trust which is alleged to have Page 3 of 7 Downloaded on : Fri Oct 25 21:23:45 IST 2019 C/SA/64/2019 ORDER been trespassed upon by a trespasser. But, it is contended that the suit is one for the relief of recovery of possession of property of the public trust and, therefore, Sub­section (a) mentioned in the second part of the section would apply. It is true that the suit is one for an order of the Court to recover the possession of the trust property. It is also true that the proviso says that provided that no suit claiming any of the reliefs specified in Section 50 shall be instituted in respect of any public trust except in conformity with the provisions thereof. No doubt, a suit to obtain a decree for the recovery of possession of the public trust property is a suit claiming one of the reliefs specified in the second part of the section, and therefore we can say that by reason of the proviso Section 50 of the Act would come into play and the consent of the Charity Commissioner is necessary. But it must he remembered that the proviso speaks of the institution of a suit in respect of any public trust and not to suits in respect of any public trust property. There is therefore a distinction between a public trust and public trust property. We can put a rational interpretation of Section 50 only by holding that a suit for the recovery of possession of a public trust property is not a suit in respect of a public trust and therefore Section 50 would not apply, if the suit is by a trustee against a trespasser. It is on this basis that the first part of the section must be reconciled with the proviso. A suit by a trustee for the appointment of a new trustee or manager or for a declaration as to what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust would fall within the proviso to Section 50. In my opinion, Section 50 would not apply to a suit by a trustee in respect of the recovery of the possession of the property of a public trust. Such a suit would not be in respect of the trust. It is only on this basis that we can reconcile the first part of Section 50 with the proviso to Section 50 of the Act. I, therefore, hold that the present suit relates to the property of a public trust and not to a public trust, and therefore, the proviso does not apply. Section 50 of the Act does not apply because this is not a case where a direction is necessary. I therefore, hold that Section 50 does not apply to the present case and the consent of the Charity Commissioner is not necessary."

5.1 The proviso similar to Section 50 is found even in the amended Section 50. Proviso is identically worded and thus ratio concerning the provision as indicated in Malek Chittu Rasul (supra) would squarely apply to the facts of the case.

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The case herein also did not relate to the administration of the public trust; but only to the recovery of the possession of the suit property. As held in Malek Chittu Rasul (supra), the proviso above­referred applies only where the institution is in respect of the public trust and not the trust property and thus Section 50 has no applicability to the facts of the case.

5.2 It is misconception on the part of the learned Counsel for the appellant to submit that since the property belonging to the trust is sought to be recovered, the suit concerns the administration of the public trust. Learned Counsel for the appellant drew attention of this Court to clause (iii) of Section 50 which contemplates the prior consent of the Charity Commissioner for filing a suit. Conjoint reading of clause

(iii) of Section 50 with sub­clause (a) of Section 50 would make it clear that consent of Charity Commissioner to file a suit would be necessary if possession of property is required for the purpose of administration of public trust; and the provision would not apply where the suit is not connected with the public trust. Similarly, under Section 51, consent of the Charity Commissioner is contemplated only in cases falling under Section 50 and as held in Malek Chittu Rasul (supra), Section 50 would not apply when the suit is by the trustees against the trespasser.

5.3 Apropos question (c), it is material to note that the suit was not filed by the appellant; but the trust, and it is settled legal position that the plaintiff is the master of the pleadings and can plead the jurisdiction of the Court on the basis of the relevant facts. According to the plaintiff, the Page 5 of 7 Downloaded on : Fri Oct 25 21:23:45 IST 2019 C/SA/64/2019 ORDER appellant herein was the trespasser in the suit property. In the pleadings, however the plaintiff referred to certain historical background of the case pointing out that in the previous round of litigation, the appellant failed to establish that she was the trustee of some other trust situated in the present trust property. The plaintiff also referred to the fact that the appellant had raised construction in the suit property and rented out two shops comprised therein to original defendants No.2 and 3 respectively. When the principal relief prayed for by the original plaintiff was based on the act of trespass of the appellant, the pleadings referring to the historical background cannot be construed to be a concession by the plaintiff as regards applicability of the Rent Act to the facts of the case. If the appellant was so interested, nothing prevented her to raise such plea, adduce evidence and prove the said fact. There is nothing on record indicating an attempt by the appellant to prove her status as a tenant or the status of original defendants No.2 and 3 as sub­tenants.

Thus, no issue in that regard arose and no substantial question of law in terms of question (c) would arise.

5.4 Apropos question (d), it is material to note that the appellate Court has elaborately discussed each and every evidence and has confirmed the judgment rendered by the trial Court. On the mere ground that it did not raise the points for determination, it cannot be said that substantial question of law arises, particularly, when the evidence has been considered by it in detail.

5.5 Similarly, question (e) and (f) do not arise as Page 6 of 7 Downloaded on : Fri Oct 25 21:23:45 IST 2019 C/SA/64/2019 ORDER substantial question of law.

6. This Court does not find any substantial question of law in the appeal. The appeal fails and is dismissed.

In view of dismissal of appeal, no orders on civil application.

(G.R.UDHWANI, J) sompura Page 7 of 7 Downloaded on : Fri Oct 25 21:23:45 IST 2019