Rajasthan High Court - Jodhpur
Shyam Kanwar vs Laccha Ram on 1 April, 2019
Equivalent citations: AIRONLINE 2019 RAJ 342
Author: P.K. Lohra
Bench: P.K. Lohra
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil First Appeal No. 595/2018
1. Shyam Kanwar W/o Shri Narpat Singh, aged about 56
Years, B/c Rajput, R/o Khinvadi, Tehsil Sumerpur, District
Pali.
2. Narpat Singh S/o Shri Lal Singh, aged about 58 Years,
B/c Rajput, R/o Khinvadi, Tehsil Sumerpur, District Pali.
----Appellants
Versus
1. Laccha Ram S/o Shri Dharma Mali, B/c Mali, R/o C/o -
New Shankar Vilas Guest House, Sumerpur, District Pali.
2. Ashok Kumar S/o Shri Bhagta Ram, B/c Sindhi, R/o
Sumerpur, District Pali.
3. Kesa Ram S/o Shri Sesa Ram, B/c Nai, R/o Sumerpur,
District Pali.
4. Chhagan Lal S/o Shri Sesa Ram, B/c Nai, R/o Sumerpur,
District Pali.
5. Shiv Lal S/o Shri Sesa Ram, B/c Nai, R/o Sumerpur,
District Pali.
6. Smt. Pushpa D/o Shri Sesa Ram, W/o Shri Bhima Ram.
B/c Nai, R/o Sumerpur, District Pali.
7. Smt. Pinky D/o Shri Sesa Ram, W/o Shri Ramesh Kumar.
B/c Nai, R/o Sumerpur, District Pali.
8. Pukhraj S/o Shri Moolchand, B/c Jain, R/o Iind Floor,
Ganga Ramvadi Bhaji Gali, Mumbai 400002.
9. Ashok Kumar S/o Shri Himmat Mal, B/c Jain, R/o
Kameshwar Mahadev Road, Shivganj, Tehsil Shivganj,
District Sirohi.
----Respondents
For Appellant(s) : Mr. C.R. Jakhar.
For Respondent(s) : Mr. Sanjay Nahar.
HON'BLE MR. JUSTICE P.K. LOHRA
Order 01/04/2019 By the instant appeal under Section 96 CPC, appellants have challenged order dated 29th of October, 2018, passed by District Judge, Pali (for short, 'learned Court below') in Civil Misc Case (Downloaded on 05/06/2021 at 02:05:11 AM) (2 of 8) [CFA-595/2018] No.27/2012. Learned trial Court, by the impugned order, has allowed application under Section 40 of the Rajasthan Public Trust Act, 1959 (for short, Act of 1959') filed by respondents and declared disputed sale-deed dated 9th of May, 2011, executed in favour of the appellants, as void ab-initio in want of Section 31(1) of the Act of 1959.
The facts, apposite for the purpose of this appeal, are that some persons interested in the public trust filed an application under Section 38 of the Act of 1959 before Assistant Collector, Devasthan Department Jodhpur stating therein that one Dharmshala at Station Road, Sumerpur (Undri) was registered with the Devsthan Department, in the name of "Shah Chamnaji Hukma Ji Dharmshala" on 21st of February 1977 bearing registration No.229. It is also averred that the Dharmshala is a public trust and its trustees have no right to sale or gift its property despite that its Manager Pukhraj executed a power of attorney in favour of Ashok Kumar Jain for selling property and Ashok Kumar Jain by registered sale-deed dated 9 th of May, 2011 sold property of the trust to the appellants Narpat Singh and Shyam Kanwar. Another application/complaint was filed by respondent No.2 Ashok Kumar before Assistant Commissioner, Devasthan Department, Jodhpur with the prayer to declare the sale-deed void. The applications/complaints were registered by the Assistant Commissioner as Case No.1/2011 under Sections 31, 38 and 49 of the Act of 1959 and investigation started. During the course of investigation, appellants submitted their reply stating that the complainants are tenant and thus have no right to file such application/complaints. The Assistant Commissioner, (Downloaded on 05/06/2021 at 02:05:11 AM) (3 of 8) [CFA-595/2018] vide order dated 30th of April 2012 accepted the application and granted permission to Ashok Kumar and Sesaram to move application before the District Judge under Section 40 of the Act of 1959 and also to seek guidance/direction from the Court below in this matter. Thereafter, they filed an application before the learned Court below which was registered as Civil Misc. case No. 27/2012. Upon receiving notices, non-applicants filed reply thereto.
Learned Court below, on the basis of pleadings of rival parties, settled three issues for determination and the parties led their evidence.
Learned trial Court, thereafter, heard final arguments and after discussing the evidence threadbare arrived at the conclusion that the shops which were sold by registered sale-deed dated 9 th of May 2011 to the appellants are property of the Public Trust. It is also observed by the learned Court below that since sale-deed dated 09.05.2011 is null and void right from very inception, the Devasthan Department on its own is required to proceed for cancellation of sale-deed.
Mr. C.R. Jakhar, learned counsel for the appellants, submits that the learned Court below has erred in not considering the facts and material available on record while passing the impugned order. It is contended by learned counsel that the respondents are not working trustees nor having any interest in the trust, as such, they have no right or locus to file application under Section 40 the Act of 1959. It is also contended by learned counsel that (Downloaded on 05/06/2021 at 02:05:11 AM) (4 of 8) [CFA-595/2018] it is a settled principle of law that a registered document can be canceled only by filing a civil suit by paying proper court fees before a competent court having jurisdiction.
On the other hand, Mr. Sanjay Nahar, learned counsel for the respondents, submits that the findings recorded by learned Court below are based on sound appreciation of facts and material available on record and thus the same are not liable to be interfered with. It is also submitted by learned counsel that the disputed property belongs to a Public Trust and the same could not be sold by the manager/trustee of the Trust to the appellants.
I have heard learned counsel for the parties and perused the impugned judgment as well as record of the case.
It would be appropriate to first go through provisions of relevant Sections 31, 38, 39 and 40 of the Act of 1959, which are reproduced hereunder:-
"31. - Previous sanction to be obtained for certain transfers:
(1). Subject to the directions in the instrument of trust or any directions given under this Act or any other law by any court:
(a) no sale, exchange or gift of any immovable property or of movable property exceeding five thousand rupees in value, and
(b) no lease, for a period exceeding five years in the case of agricultural land or for a period exceeding three years in the case of non-
agricultural land or a building.
belonging to a public trust shall be valid without the previous sanction of the Assistant Commissioner. (2). An application for the sanction of the Assistant Commissioner, under sub-section (1) shall be made in the prescribed manner and form.
(Downloaded on 05/06/2021 at 02:05:11 AM)
(5 of 8) [CFA-595/2018] (3). Where, on the application duly made for sanction in respect of any transaction specified in sub- section(1), the Assistant Commissioner does not, within two months of the receipt thereof, pass final orders, it shall be presumed that he has accorded sanction in respect of that transaction, provided that the application described the transaction, with sufficient accuracy.
(4). The Assistant Commissioner shall not refuse to accord sanction in respect of any transaction specified in sub-section (1) unless such transaction is, in this opinion, likely to be prejudicial to the interests of the public trust, and no order refusing to accord sanction shall be passed unless the working trustee of such public trust has had a reasonable opportunity of being heard.
38 - Application for directions: (1). If the Assistant Commissioner, on the application of any person having interest in a public trust or otherwise, is satisfied after making such inquiry as he thinks necessary that -
(a) the original object of the public trust has failed.
(b) the trust property is not being properly managed or administered or
(c) the direction of the Court is necessary for the administration of the public trust;
he may, after giving the working trustee an opportunity of being heard, direct such working trustee or any other trustee or person having interest in the trust to apply to the court for directions, within such time not exceeding thirty days as may be specified by the Assistant Commissioner.
(2). If the working trustee or any other trustee or person having interest in the trust so directed fails to make an application as required, or if there is no trustee of the public trust, or if, for any other person, the Assistant Commissioner considers it expedient to do so, he shall himself make an application to the court.
39. Application to Commissioner against refusal to apply under Section 38.- (1) Where the Assistant Commissioner rejects an application under Sub-section (1) of section 38 or fails or refuses to make an application to the court himself under sub-section (2) of that section, the Commissioner may, on an application made to him within ninety days of such rejection, failure or refusal or upon the facts otherwise coming to his knowledge and after giving the working trustee a reasonable opportunity of being heard, set aside the order of the Assistant Commissioner, if any, and require him to apply to the court himself for directions. (Downloaded on 05/06/2021 at 02:05:11 AM)
(6 of 8) [CFA-595/2018] (2). Subject to the orders of the Commissioner under sub-section (1) all orders passed by the Assistant Commissioner under section 38 shall be final.
40. Powers of the court on application under section 38 or section 39. (1) On receipt of an application made under or in pursuance of section 38 or section 39 the court shall make or cause to be made such inquiry into the case as it deems necessary and pass such orders thereon as it may consider appropriate.
(2). While exercising the powers under sub-section (1) the court shall, besides other powers, have power to make an order for -
(a) removing any trustee;
(b) appointing a new trustee;
(c) declaring what portion of the trust property or of the interest therein shall be allocated to any particular object of the trust;
(d) providing a scheme of management of the trust property;
(e) directing how the funds of a public trust whose original object has failed shall be spent, having due regard to the object for which the trust was created;
(f) issuing such other directions as the nature of the case may require.
(3). Any order passed by the court under sub-section (2) shall be deemed to be a decree of such court and an appeal shall lie there from to the High Court." The contention of the learned counsel for the appellants to question locus of the respondent is per se not tenable. A bare perusal of Section 38 of the Act of 1959, it is abundantly clear that application in this behalf can be filed by any person having interest in a public trust. The Legislature has given very expensive definition of "person having interest" under Section 2(9) of the Act of 1959 which reads as under:-
"Person having interest" or any expression signifying a person having interest in a public trust includes -
(a) in the case of a temple, a person who is entitled to attend or is in the habit of attending the performance of worship or service in the temple or who is entitled to (Downloaded on 05/06/2021 at 02:05:11 AM) (7 of 8) [CFA-595/2018] partaking or is in the habit of partaking in the distribution of gifts thereof;
(b) in the case of math, a disciple of the math or a person of the religious persuasion to which the math belongs;
(c) in the case of society registered or deemed to be registered under the Rajasthan Societies Registration Act, 1958(Rajasthan Act 28 of 1958) or under any other analogous law in force in any part of the State, any member of such society; and
(d) in the case of any, other public trust, any beneficiary;
Therefore, being tenants of a public trust respondents are beneficiaries of the Trust they are undeniably "person having interest" and as such their locus is unquestionable. On merits also, when sanction for sale of trust property is not obtained by the authorized person on behalf of public trust from the Assistant Commissioner, such sale being contrary to mandatory requirements under Section 31(1) of the Act of 1959 is void ab- inito. Thus, the findings and conclusions of the learned of the learned court below are just and proper in the best interest of public trust warrants no interference.
In totality, upon objective analysis of the evidence, unhesitatingly, in my opinion, the learned trial Court has meticulously discussed the entire evidence for recording its affirmative finding in favour of respondents. The findings and conclusion are based on sound reasonings and therefore cannot be faulted.
In view of foregoing discussion, I feel disinclined to interfere with the impugned order passed by learned Court below. (Downloaded on 05/06/2021 at 02:05:11 AM)
(8 of 8) [CFA-595/2018] Resultantly, the appeal fails and same is hereby dismissed.
(P.K. LOHRA),J (Downloaded on 05/06/2021 at 02:05:11 AM) Powered by TCPDF (www.tcpdf.org)