Gujarat High Court
Sabarmati Ashram Gaushala Trust vs Bhailalbhai Nanabhai & Ors on 29 January, 2014
Author: Paresh Upadhyay
Bench: Paresh Upadhyay
C/SA/178/2013 CAV JUDGMENT
IN THE HIGH COURT OF GUJARAT AT AHMEDABAD
SECOND APPEAL NO. 178 of 2013
FOR APPROVAL AND SIGNATURE:
HONOURABLE MR.JUSTICE PARESH UPADHYAY Sd/-
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1 Whether Reporters of Local Papers may be allowed to see YES
the judgment ?
2 To be referred to the Reporter or not ? YES
3 Whether their Lordships wish to see the fair copy of the NO
judgment ?
4 Whether this case involves a substantial question of law as NO
to the interpretation of the Constitution of India, 1950 or any
order made thereunder ?
5 Whether it is to be circulated to the civil judge ? NO
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SABARMATI ASHRAM GAUSHALA TRUST ....Appellant
Versus
BHAILALBHAI NANABHAI & ORS. ...Respondents
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Appearance:
MR. D. C. DAVE, SR ADVOCATE WITH
MR. JIGAR M PATEL, ADVOCATE for the Appellant
MS. AMRITA AJMERA with
MR DAIFRAZ HAVEWALLA, ADVOCATE for the Respondent No. 1
Respondents No. 2 - 6 are served
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CORAM: HONOURABLE MR.JUSTICE PARESH UPADHYAY
Page 1 of 16
C/SA/178/2013 CAV JUDGMENT
Date : 29/01/2014
CAV JUDGMENT
1. Challenge in this Second Appeal is made by the original plaintiff to the judgment and decree dated 06.07.2013 passed by the Appellate Court below i.e. the 5th Additional District Judge, Kheda at Nadiad in Regular Civil Appeal No.38 of 2009, whereby, while allowing the Appeal of the original defendant, the judgment and decree passed by the Trial Court i.e. the Principal Civil Judge, Kheda dated 30.03.2009 in Regular Civil Suit No.65 of 1999 [old Number :- Regular Civil Suit No. 81 of 1994 in the Court of Civil Judge, (Junior Division) Matar], is reversed. The Trial Court had decreed the suit for recovery of possession of the suit lands from the defendants - the present respondent No.1.
2. This Second Appeal was admitted by this Court vide order dated 10.10.2013 on the following substantial questions of law.
(i) Whether on the facts and in the circumstances, the First Appellate Court committed error of law by not holding that having regard to the certificate granted by the competent authority under Section 88-B of the Bombay Tenancy and Agricultural Lands Act, 1948 in favour of the appellant, provisions of the Bombay Tenancy Act, ceased to Page 2 of 16 C/SA/178/2013 CAV JUDGMENT apply, and consequently Civil Court had the jurisdiction to adjudicate the controversy in the suit?
(ii) Whether on the facts and in the circumstances, judgment of the First Appellate Court would stand valid in law in view of law discussed in Arya Satyadev Dhanjibhai Vs Bhailalbhai Ishwarbhai [1972 GLR 392] ?
(iii) Whether on the facts and in the circumstances, the First Appellate Court ought to have held that relationship between the appellant and the respondent was governed by the provisions of the Transfer of Property Act, 1882?
3. The facts, relevant for the purpose of answering the above questions, as stated by the appellant, but over which there is no dispute on any material aspect, are to the effect that the appellant is the owner of the suit lands. The suit lands were exempted from the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948, ('the Tenancy Act' for short) on account of the certificate of exemption being obtained by the appellant under Section 88-B of the said Act. Further, the respondent was not declared to be deemed purchaser in the proceedings initiated under Section 32 of the said Act. The respondent was annual tenant of the suit lands. The respondent was Page 3 of 16 C/SA/178/2013 CAV JUDGMENT served with the notice dated 17.12.1991 by the appellant, terminating the tenancy created in his favour. The respondent, despite receiving the aforesaid notice, did not hand over the possession of the suit lands to the appellant and therefore, the appellant initiated proceedings before the Mamlatdar under Section 5 of the Mamlatdar Courts Act for recovery of possession of the suit lands from the respondent, wherein the Mamlatdar vide order dated 25.05.1993 Exh.62, directed the respondent No.1 to hand over the possession of the suit lands to the appellant. However, the said order of the Mamlatdar was challenged by the respondent No.1 by filing Revision Application, being Revision Application No.14 of 1993 before the Deputy Collector, Nadiad. The Deputy Collector, while allowing the said Revision Application, vide order dated 10.09.1993, granted liberty in favour of the present appellant to recover the possession of the suit lands by way of initiating appropriate proceedings before the competent Civil Court. The said order dated 10.09.1993 is on record as Exhibit - 63. In view of this, the appellant instituted Regular Civil Suit No. 81 of 1994 in the Court of Civil Judge, (Junior Division) at Matar (District - Kheda) for recovery of possession of the suit lands from the respondent No.1. In Para-8 of the plaint, the plaintiff prayed that the defendant be directed to handover vacant and peaceful possession of the suit lands, as mentioned in the schedule, to the plaintiff. During the pendency of the suit, on transfer to the Court of Civil Judge, Kheda, it was Page 4 of 16 C/SA/178/2013 CAV JUDGMENT renumbered as Regular Civil Suit No.65 of 1999. The respondent No.1 - defendant contested the said Civil Suit inter-alia contending that the Civil Court had no jurisdiction to entertain the suit in view of bar of the provisions of the Tenancy Act. The respondent No.1 further contended that the certificate of exemption obtained by the appellant under Section 88-B of the said Act is not binding to him.
4. The Trial Court, on the basis of these pleadings, framed the following issues for determination vide Exhibit
- 13 and on the basis of evidence on record, answered them as under.
(i) Whether the plaintiff proves that, it is entitled to file the present suit against the defendant?
[In affirmative]
(ii) Whether the plaintiff proves that, it has terminated the tenancy with effect from 17.12.1991, by giving Notice sent through Registered Post to defendant No.1 ?
[In affirmative]
(iii) Whether the plaintiff is entitled to get relief as claimed in para:8 of the plaint ?
[In affirmative] Page 5 of 16 C/SA/178/2013 CAV JUDGMENT On the basis of above findings, the suit was decreed in favour of the plaintiff and the defendant - the present Respondent No.1 was directed to hand over the vacant and peaceful possession of the suit lands to the plaintiff.
5. Being aggrieved by the said judgment and decree of the Trial Court dated 30.03.2009, the defendant No.1 preferred Regular Civil Appeal before the District Court.
6. The Appellate Court below framed the following issues for determination and answered them as under.
"(i) Whether the appellant can point out that trial Court has committed an error in holding that the Court of Principal Civil Judge has jurisdiction to entertain and decide the said suit without considering the Sections 29 and 85 of the Bombay Tenancy and Agricultural Act, 1948 with Rules, herein after referred to as the Bombay Tenancy Act?
[In affirmative]
(ii) Whether an appellant can point out that the trial court has committed the error in holding that the plaintiff is entitled for the possession of the suit land?
[In affirmative] Page 6 of 16 C/SA/178/2013 CAV JUDGMENT
(iii) Whether the appellant can point out that the impugned Judgment and Decree dated 30/03/2009 of the trial Court are erroneous capricious and perverse?
[Affirmative in light of lacking jurisdiction] On the basis of above findings, the Appeal was allowed and the judgment and decree passed by the Trial Court, by which the original defendant No.1 ( the appellant before the Appellate Court below) was directed to hand over the vacant and peaceful possession of the suit lands to the plaintiff, was quashed and set aside.
7. Being aggrieved by the above judgment and decree passed by the Appellate Court below, the original plaintiff has preferred this Second Appeal, and it is under above circumstances, that the substantial questions of law, as quoted in Para-2 above, were formulated by this Court for consideration.
8. Heard Mr.D.C.Dave, learned Senior Advocate with Mr. Jigar M. Patel, learned advocate for the appellant and Ms. Amrita Ajmera, learned advocate for Mr.Daifraz Havewala, learned advocate for the contesting respondent No.1. It is indicated that the appellant is the trust and respondents No.2 to 6 are the trustees and formal respondents. Both the learned advocates have taken this Court through the relevant evidence from the Record and Proceedings.
Page 7 of 16 C/SA/178/2013 CAV JUDGMENT9.1 Learned Senior Advocate for the appellant has drawn the attention of this Court to the contents of Para-8 of the judgment of the Trial Court, wherein some undisputed facts are recorded which are as under.
(i) Sabarmati Ashram Gaushala Trust, the plaintiff is a trust registered under the Bombay Public Trust Act, 1950.
(ii) Defendant No.1 is in possession of the suit land since prior to institution of suit.
(iii) Defendant No.1 is not declared as tenant
under the Tenancy Act by the competent
authority.
(iv) The plaintiff had, before filing of this suit,
initiated proceedings in the Tenancy Court to get possession of the suit property from the defendant, and that the certificate issued in favour of the plaintiff by the Competent Authority under Section 88-B of the Tenancy Act is not challenged by the defendant No.1 before any forum.
9.2 Mr.Dave, learned Senior Advocate for the appellant Page 8 of 16 C/SA/178/2013 CAV JUDGMENT has submitted that in view of the certificate issued in favour of the plaintiff by the Competent Authority under Section 88-B of the Tenancy Act granting exemption, and further that, that having not been challenged by the defendant No.1 before any forum, it is only the Civil Court which could have jurisdiction, and under these circumstances, the Civil Court could not have been held to have lacked jurisdiction, as is done by the Appellate Court below, which is a gross error of law. Further, in the proceedings initiated by the defendant No.1 himself, the Deputy Collector had, vide order dated 10.09.1993, asked the appellant to approach the Civil Court and under these circumstances, the point of jurisdiction ought not to have been entertained at the hands of said party - the defendant No.1.
9.3 With reference to the substantial question of law, reliance is placed on the decision of the Division Bench of this Court in the case of Arya Satyadev Dhanjibhai versus Bhailalbhai Ishwarbhai reported in 1972 GLR 398, which was also pointed out to the Appellate Court below, to contend that it is the Civil Court alone which had the jurisdiction. It is submitted that in view of the said decision, the first two of the three questions of law quoted above, be answered in affirmative. The said decision is also relied, in the context of the third question of law as well, with the specific reference to para:16 of the said judgment. It is submitted that, the Appeal be allowed and Page 9 of 16 C/SA/178/2013 CAV JUDGMENT the judgment and decree of the Trial Court be restored.
10.1 On the other hand Ms.Ajmera, learned advocate for the contesting respondent No.1 has submitted that, before filing the Civil Suit, permission ought to have been taken by the plaintiff from the Charity Commissioner as envisaged under Section 50 of the Bombay Public Trust Act, 1950 and further that in view of Section 51 of the said Act, even Charity Commissioner ought to have been joined as one of the parties in the proceedings and having not done so, the suit could not have been entertained. Reliance is placed on the decision of Hon'ble the Supreme Court of India in the case of Sainath Mandir Trust versus Vijaya reported in AIR 2011 SC 389 and of this Court in the case of Thakkar Raghuram Ranchhodbhai versus Gohil Shivaji Gamarsinh reported in 2012 (0) GLHEL-HC 229499.
10.2 Ms.Ajmera has next contented that, in view of Section 80 of the Bombay Public Trust Act, this issue could not have been agitated before the Civil Court but Charity Commissioner ought to have been approached.
10.3 It is next contended by learned advocate for the respondent that notice issued to the defendant was in the personal capacity of the trustee, since there was no resolution of the Trust in this regard.
Page 10 of 16 C/SA/178/2013 CAV JUDGMENT10.4 It is next contended that the change in the name of the plaintiff - Trust, as approved by the Charity Commissioner, as reflected in the certificate of registration, at Exh.-71, does not bare initial of the Officer and therefore, it goes to the very root of the matter.
10.5 It is next contended that it is not in dispute that the present respondent No.1 is in possession of the suit property and therefore Tenancy Court could have been approached by the plaintiff instead of Civil Court. In support of her contention reliance is placed in the case of Gundaji Satwaji Shinde vs. Ramchandra Bhikaji Joshi reported in AIR 1979 SC 653 as well as in the case of Satishbhai Natubhai Patel versus Punjabhai Chhaganbhai Vahivatkarta and POA reported in 2010 (3) GLH 788.
11.1 As against above submissions of learned advocate for the respondent, Mr.Dave, learned Senior Advocate for the Appellant, in rejoinder has firstly submitted that, none of the contentions raised on behalf of the respondent as noted above, can be permitted to be pressed into service at this stage, since these contentions were not taken before the Courts below and had it been taken there, the appellant could have met with it, at that time. Attention of this Court is invited to the decision of this Court in the case of Suryakant Kanji Bheda versus Hemlataben Indukumar Rajania reported in 1998(2) GLR 1650.
Page 11 of 16 C/SA/178/2013 CAV JUDGMENT11.2 Without prejudice to above, it is submitted by learned Senior Advocate for the appellant that, even if these contentions were to be considered on merits, the same are not well founded, in the above stated factual background. Reliance is also placed on the decision of this Court in the case of Nadiad Nagarpalika versus Vithalbhai Zaverbhai Patel reported in 1980 GLR 792.
12.1 Having heard learned advocates for the respective parties and having gone through the material on record, this Court finds that, the foundation of the appeal before the Court below, by the original defendant No.1, about the competence of the Civil Court to try the present subject matter, was ill-founded, on merits as well as in procedure - both. It needs to be recorded that, the issues framed by the Trial Court were, as quoted in Para-4 above, which does not contain this aspect. It is the settled position of law that, if proper issues are not framed, or issues framed are defective or incomplete, or not capable of making a point certain, it is upto the parties to move the Court to get the issues rightly framed. If the parties do not do so and lead evidence and invite the findings of the Court, they can not be allowed to find fault with the issues before appellate or revisional Court so as to circumvent his failure before the Court. Reference in this regard can be made to the decision of this Court in the case of Suryakant Kanji Bheda versus Hemlataben Indukumar Page 12 of 16 C/SA/178/2013 CAV JUDGMENT Rajania reported in 1998(2) GLR 1650, more particularly Para-7 thereof. Keeping these principles in view, this Court finds that, the objection of the original defendant No.1 as contained in the first issue framed by the Appellate Court below, as quoted in Para-6 above, could not have been permitted by the Appellate Court below. The Appellate Court below has reversed the judgment and decree passed by the Trial Court, on an issue, which was not the issue before the Trial Court. On this count alone, the present appeal could have been disposed of, without going into the contentions raised by learned advocate for the respondent before this Court. Reference in this regard can also be made to the decision of Hon'ble the Supreme Court of India in the case of Union of India and others versus Kartar Kaur reported in (2012) 12 SCC 505. However, even if these contentions are to be examined on merits, none of them is well founded, as discussed hereinafter.
12.2 So far the contention regarding Section 80 of the Bombay Public Trust Act, 1950 is concerned, it can not have any play in the facts of this case, since Charity Commissioner could not adjudicate the point at issue. Further, the perceived violation of Sections 50 and 51 of the said Act, is also misconceived, in view of the decision of this Court in the case of Nadiad Nagarpalika (supra). The notice given to the defendant is on record, and in no uncertain terms, it is a notice given by and on behalf of Page 13 of 16 C/SA/178/2013 CAV JUDGMENT the appellate Trust. Further, the document Exh.71 which is the certificate of registration, also in no uncertain terms identifies the appellant Trust with this very name. Ex-facie these contentions are inconsistent with record and in any case, it is an after-thought, since before the Courts below, these were not only not raised, but are recorded as undisputed position. Thus, the contentions raised on behalf of the respondent are not well-founded and are rejected. So far the judgments relied by learned advocate for respondent No.1 are concerned, there can not be any dispute with regard to the proposition of law enunciated in these judgments, however, none of these judgments would take the case of the respondent No.1 any further keeping in view the undisputed facts which are stated above. Further, these contentions are being raised for the first time before this Court in this Second Appeal and therefore, the view expressed by Hon'ble the Supreme Court of India in the case of Union of India and others versus Kartar Kaur reported in (2012) 12 SCC 505, which is referred above, will come in the way of respondent No.1 with regard to these contentions as well.
12.3 Coming to the substantial questions of law, as quoted in Para-2 above, it needs to be recorded that, it is not in dispute that the competent Authority has issued exemption certificate under Section 88-B of the Tenancy Act in favour of the plaintiff Trust. It is also not in dispute that the defendant is not declared as a tenant under the Page 14 of 16 C/SA/178/2013 CAV JUDGMENT said Act. In view of this, the Forum under the Tenancy Act were not competent to go into the issue, which is the subject matter of this litigation. Thus, only Civil Court could have gone into it. Further, this issue is already concluded by this Court in the case of Arya Satyadev Dhanjibhai versus Bhailalbhai Ishwarbhai reported in 1972 GLR 398. This was even pointed out to the Appellate Court below and the same is referred as Item No.1 in Para-17 of the judgment of the Appellate Court below. By taking a view different than it, the Appellate Court below has committed a grave error of law, which goes to the root of the matter and which has also resulted into miscarriage of justice. First two of the three questions of law which are quoted above, are inter-connected and are answered by the ratio of the decision of this Court in the case of Arya Satyadev Dhanjibhai (supra) and thus, both the questions are answered in affirmative. So far the third question is concerned, specific reference can be made to Para-16 of the very same judgment and in view of it, even the third question is answered in affirmative. Thus, all the three questions are answered in affirmative.
13. For the reasons recorded above, this Second Appeal is allowed. The judgment and decree dated 06.07.2013 passed by the Appellate Court below i.e. the 5th Additional District Judge, Kheda at Nadiad in Regular Civil Appeal No.38 of 2009 is quashed and set aside. The judgment and decree passed by the Trial Court i.e. the Principal Civil Page 15 of 16 C/SA/178/2013 CAV JUDGMENT Judge, Kheda dated 30.03.2009 in Regular Civil Suit No.65 of 1999 [old Number :- Regular Civil Suit No.81 of 1994 in the Court of Civil Judge, (Junior Division) Matar] is restored. Parties to bear their own cost. Decree be drawn accordingly.
Sd/-
(PARESH UPADHYAY, J.) mhdave/1
14. After this judgment is pronounced, learned advocate for the respondent No.1 has requested that, the respondent No.1 is in possession of the suit lands and some time be granted to him to enable him either to hand over the possession or to approach the higher forum, if so advised. This request is opposed by the other side. Considering the totality, it is ordered that, no coercive steps shall be taken by the appellant against the respondent No.1 with regard to the subject matter of this Second Appeal for a period of one month from today.
Sd/-
(PARESH UPADHYAY, J.) mhdave/1 Page 16 of 16