Madhya Pradesh High Court
Shree Deo Janki Raman Mandir Dubey Trust vs The State Of Madhya Pradesh on 3 November, 2017
First Appeal No.488/2017
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HIGH COURT OF MADHYA PRADESH : JABALPUR
S.B. : HON'BLE MS. JUSTICE VANDANA KASREKAR
FIRST APPEAL NO.488/2017
Shree Deo Janki Raman Mandir Dubey
(through its trustees)
vs.
The State of M. P. & others
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Shri Ashok Kumar Tiwari, learned counsel for the
appellants.
Shri R.K.Verma, learned Additional Advocate General
with Shri Pushpendra Yadav, learned Deputy
Government Advocate for respondent.
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J U D G M E N T
(02/11/2017) The appellant has filed the present appeal challenging the order dated 04/01/2017 passed by the 3 rd Additional Judge to the Court of District Judge, Sagar thereby allowing the application preferred by the respondent under Order 7 Rule 11 of the CPC. Consequently, the suit was also dismissed.
First Appeal No.488/2017
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2. Brief facts of the case are that the appellant is a registered public trust under the provisions of the Madhya Pradesh Public Trust Act, 1951. One Shri Anklishwar Dubey, Shri Yogesh Shrivastava and Shri Vikas Subhedar are some of the trustees of the appellant filed a civil suit before the trial Court for declaration and permanent injunction. Along with the said civil suit, the appellants also filed an application under Order 39 Rules 1 & 2 of the CPC for temporary injunction. The respondent filed reply to the application for temporary injunction as well as seeking dismissal of the civil suit. Thereafter on 21/11/2016 respondent had filed an application under Order 7 Rules 10 & 11 of the CPC read with Section 92 of the CPC for rejection of plaint as not maintainable. The application filed by the respondent under Order 7 Rules 10 & 11 of the CPC mainly on the ground that the order appointing the trustees has been stayed by this Court vide order dated 29/06/2016 in First Appeal No.552/2015, therefore, the present trustees have no right to file the suit. The cause of action in the First Appeal No.488/2017
--3- present case as shown is of 2014 and 2016 and, therefore, the suit is time barred as well as the appellant has not pleaded the specific cause of action accrued in their favour. The lease granted in favour of the appellant was cancelled on 22/04/2008 and the order of cancellation of lease was maintained up to the order passed by the Division Bench of this Court. The appellant herein filed reply to the said application and submits that the application does not fall within the preview of the order 7 Rules 10 & 11 of the CPC.
3. The trial Court after hearing both the parties have passed the order dated 04/01/2017 thereby rejecting the plaint filed by the appellant as barred under Section 8 of the Madhya Pradesh Public Trusts Act, 1951 (hereinafter referred as 'The Act') and also on the ground that no cause of action to sue the accrues to the appellant. Being aggrieved by that order, the appellant has filed the present appeal.
4. Learned counsel appearing on behalf of the appellant argues that the impugned order passed by the trial First Appeal No.488/2017
--4- Court is illegal and perverse. He submits that the trustees of the appellant have no cause of action to challenge the order of Collector before 09/04/2015 when the 8 th Additional Judge to the Court of District Judge Sagar has passed the order appointing the trustees. He submits that the provision of Section 8 of the Act are not attracted in the present case as the appellant did not aggrieve by any order passed under Section 6 of the Act. He submits that the trial Court has erred in rejecting the plaint of the appellant on the ground that no cause of action accrues to the appellant. He submits that in fact cause of action accrues to the appellant after passing the order by the 8th Additional District Judge in MJC No. 12/2012. He submits that the order appointing the trustees has not yet been quashed by the High Court. He further argues that while deciding the application under Order 7 Rule 11 of the CPC only the plaint allegations are required to be seen.
5. On the other hand, learned Additional Advocate General on behalf of the State supports the order First Appeal No.488/2017
--5- passed by the trial Court. He submits that the trial Court has not committed any error in rejecting the plaint. He submits that the Collector had passed the order dated 22/04/2008 thereby stating that the lease granted in favour of the aforesaid trustees has already been lapsed in the year 1952 and, therefore, all the entries recorded in the name of trust were deleted and the same continued in the name of the State. The order of the Collector was duly accepted by the High Court in the Writ Petition No.8312/2007 and Writ Appeal No.533/2015. The trustees who have filed the suit before the trial Court for declaration and permanent injunction are not the trustees of the public trust. These trustees were appointed vide order dated 09/04/2015 by the 8th Additional District Judge Sagar and the said order was challenged before this Court in First Appeal No.552/2015 and the order passed by the Additional District Judge was stayed, therefore, the trustees who have filed the present suit have no right to continuing in the said civil suit. The lease granted in favour of the trustees was expired in the First Appeal No.488/2017
--6- year 1952 and the same was never renewed at any point of time. The SDO vide letter dated 04/09/1984 has informed the Collector that the lease of the property in question has already been expired, therefore, the same has to be allotted to the Collector. On the basis of the same, the Collector initiated the proceedings and show cause notice was issued to the trust. After receiving the notice, the trust filed reply and denying the plaint allegations. He stated that the same was purchased by the trust in the year 1982 from one W.I. Morries. However, neither any document nor any oral evidence was produced. The Collector thereafter passed the order on 06/02/1989 and directed to record the said land in favour of the State Government. The said order was challenged by Trust in W.P.No.818/1990 which was disposed of vide order dated 20/08/2002 and the matter was remanded to the Collector with a direction to decide the matter afresh after affording proper opportunity of hearing to the parties. After issuing the show cause notice to the parties, the Collector has passed the order dated First Appeal No.488/2017
--7- 22/04/2008. After the said order, action was initiated for removal of encroachment from the property in question and some of the encroachers approached to this Court by filing W.P.No.8312/2007. The plaintiff No.3 Vikas Subhedar also one of the petitioner in the said petition. The said writ petition was dismissed vide order dated 01/07/2015. The said order was also challenged by filing a writ appeal which was also dismissed vide order darted 18/08/2015. In such circumstances, the order has attained the finality and the same was never challenged by the Trust. It is clear that the land in question is a government land and, therefore, the present suit is not maintainable. He further argues that as per Section 3 of the Act, the Collector is the Registrar of the M. P. Public Trust Act and the order passed by the Registrar, Public Trust has to be challenged under Section 8 of the Act before the Civil Court. However, the respondent instead of filing an application under Section 8 of the Act has filed the present suit which is not maintainable. First Appeal No.488/2017
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6. Heard learned counsel for the parties and perused the record. The appellant has filed the present suit for declaration to title as well as for permanent injunction. During pendency of the said civil suit, the respondent has filed an application under Order 7 Rule 11 of the CPC on the ground that the present suit is not maintainable for following reasons :-
1. The order passed by the 8th Additional District Judge in MJC No.12/12 by which the appellants were appointed as trustees is stayed by this Court vide order dated 29/06/2015 in First Appeal No.552/2015 and, therefore, the present appellants have no right to file the present suit.
2. No cause of action arises in favour of the appellant.
3. The appellant No.3 has filed the present suit contending himself as the trustees. First Appeal No.488/2017
--9- He himself filed a civil suit before 8th Civil Judge Class-II Sagar stating himself to be a tenant of the trustees.
4. The order dated 22/04/2008 passed by the Collector has been challenged by the appellant No.3 by filing a W.P.No.8312/2007, which was dismissed vide order dated 01/07/2015. Against the said order, a writ Appeal was preferred which was also dismissed vide order 18/08/2015. Thus, the order by which the name of the trustees recorded in the revenue record has attained the finality.
At present, there is no lease in favour of the appellant/Trust. On this ground, respondent has stated that suit be dismissed.
7. Learned counsel for the appellant has filed their reply to the said application stating that the application is not maintainable as per law. However, there is no specific First Appeal No.488/2017
--10- denial to the grounds raised in the application filed by the respondent.
8. As per provision of Order 7 Rule 11 of the CPC while deciding the application only the plaint allegations are required to be seen. In the present case, from perusal of the facts it is clear that the appellant/trust who have filed this appeal on behalf of the trustees, their appointment has stayed by this Court in First Appeal and, therefore, they have no right to file the present suit. Consequently, suit is also barred under Section 8 of the Act.
9. The suit is also barred under Section 8 of the Act. The Section 4 of the Act provides for registration of the Public Trusts and as per the said section, the working trustee of public trust shall, apply to the Registrar having jurisdiction for the registration of the public trust. As per Section 5 of the Act, on receipt of an application under Section 4 or upon, an application made by any person having interest in a public trust or on his own motion the Registrar shall make an inquiry whether any property is the First Appeal No.488/2017
--11- property of such trust. Upon making such enquiry, the Registrar shall record his findings under Section 6 of the Act and, thereafter make entries in the register as provided under Section 7 of the Act. Section 8 provides that 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 application of the notice under sub-section (1) of Section 7, institute a suit in a Civil Court. Thus, in the light of the aforesaid provision of the Act, the appellant has a remedy for filing a suit under Section 8 of the Act.
10. In the present case, the question for determination is that whether the property in question is trust property, which can be decided by filing an application under Section 6 of the Act before the Registrar.
11. Thus, the trial Court has not committed any error in rejecting the application filed by the appellant, First Appeal No.488/2017
--12- therefore, I do not find any reason to interfere into the impugned order.
12. Accordingly, the first appeal is hereby dismissed.
(MS. VANDANA KASREKAR) JUDGE manju MANJU CHOUKSEY 2017.11.07 14:20:04 +05'30' First Appeal No.488/2017
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