Bombay High Court
Shri Nandkumar D. Jamodekar vs The Charity Commissioner And Ors on 21 March, 2025
2025:BHC-AS:13608
P.H. Jayani 01 SA148.1993.doc
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
CIVIL APPELLATE JURISDICTION
SECOND APPEAL NO. 148 OF 1993
Nandkumar D. Jamodekar
Age : 30 years, Occ. Business,
R/o. Shrikrishna Mandir,
At Post : Baramati, Dist. Pune ..... Appellant
(Original Plaintiff)
v/s.
1. The Charity Commissioner,
Charity Commissioner's Office,
Worli Naka, Bombay.
2. M.D. Bhagwat,
Age : 52 years, Occ. Business
3. Aburao Baloba Pandkar (Appeal abated)
Age : 66 years, Occ. Service
4. Vijay M. Pandkar (Appeal abated)
Age : 46 years, Occ. Service
5. Bharat K. Bhagwat (Appeal abated)
Age : 46 years, Occ. Service
6. Arjun R. Galande (Appeal abated)
Age 51 years, Occ. : Service,
All residing at Burud Aali,
At Post Tal : Baramati, Dist. Pune.
7. Suvarnabai D. Jamodekar (Appeal abated)
Age : 46 years, Residing at Burud Galli,
Mahanubhav Math, Tal. Baramati,
Dist. Pune ..... Respondents
(Original Defendants)
Mr. Sagar A. Joshi for the Appellant.
Mr. S.G. Talhar, AGP for the State.
Mr. Pramod J. Pawar for Respondent No.2.
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P.H. Jayani 01 SA148.1993.doc
CORAM : SHYAM C. CHANDAK, J.
RESERVED ON : 12th March, 2025.
PRONOUNCED ON : 21st March, 2025.
JUDGMENT :-
. Present Appeal is directed against the Judgment and Order dated 20.03.1989, in Special Civil suit No.316/1983, passed by a Court of learned Civil Judge, Senior Division, Pune and confirmed by the Judgment and Order dated 07.02.1992, in Civil Appeal No.324 of 1989, passed by a Court of learned Additional District Judge, at Baramati, District Pune (for short 'the First Appellate Court').
2) Record shows that, the Appeal abated as against Respondent No.3 and Respondent Nos.4 to 7 as per this Court's Orders passed on dated 10.10.2007 and 21.02.2018, respectively. (Hereinafter, the parties are being referred to as per their status in the suit i.e., Appellants as 'Plaintiffs' and Respondents as 'Defendants' ).
2.1) As noted on the plaint, the Defendant No.1 was deleted from the cause title as per the trial Court's Order dated 27.09.1984, and accordingly, the amendment carried out on dated 09.01.1987. However, the Defendant No.1 was made party Respondent in the First Appellate Court and also in this Appeal.
3) The Appeal was admitted on following 3 substantial questions of law i.e., grounds of objection (a) to (c) vide this Court's Order dated 2/27 ::: Uploaded on - 25/03/2025 ::: Downloaded on - 29/03/2025 08:45:24 ::: P.H. Jayani 01 SA148.1993.doc 01.04.1993. The 4th substantial question of law was added to that after hearing the parties and as per Order dated 18.10.2024 :-
(1) Provisions of Section 80 of the Bombay Public Trust Act have not been properly applied by the Courts below and ultimately thereby have held that the Civil Court has no Jurisdiction to entertain and try the suit, is a substantial question of law ?
(2) By wrongly applying the provisions of Article 58 of the Limitation Act, the Courts below have held that the suit preferred by the Appellant is barred by limitation, and therefore this is a substantial question of law, in as much as the cause of action specified by the Appellant has not been taken into consideration ?
(3) When the Appellant is in exclusive possession of the suit property for more than 12 years, the Courts below ought to have held that the Appellant has become an absolute owner of the said property by Adverse possession, and this is a substantial question of law ?
(4) Whether Judgment given by the trial court on other issues after holding that it has no jurisdiction over the subject matter in suit, is Judgment without Jurisdiction and therefore nullity ?
4) Heard Mr. Joshi, the learned Advocate for the Appellant, Mr. Talhar, the learned AGP for the Defendant No.1 and Mr. Pawar, the learned Advocate for the Defendant No.2 on the aforesaid substantial questions of law. Perused the record 3/27 ::: Uploaded on - 25/03/2025 ::: Downloaded on - 29/03/2025 08:45:24 ::: P.H. Jayani 01 SA148.1993.doc
5) The suit property is bearing City Survey No.136, Burudali, Taluka. Baramati, District Pune with a structure thereon. The suit property is admeasuring about 197.3 sq.mtrs., which includes a Temple of Lord Shrikrishna and is bounded by:
On or towards EAST : A Lane.
On or towards SOUTH : 137, Burudali.
On or towards WEST : 129, Burudali
On or towards NORTH : Public Road.
6) The Plaintiff averred that, the suit property was owned and
possessed by Kamalakar Buvamahant Jamodekar ("Kamalakar"), who was great grand father of the Plaintiff. Kamalakar got the suit property by a Gift-deed registered on dated 17.12.1937. The suit property was partly constructed at the time of the gift-deed. Thereafter, Kamalakar constructed a new structure thereon and installed an idol of Lord Krishna, by spending his self earnings. Thus, the suit property was the self acquired property of Kamalakar and it was gained out of his own earnings. However, Kamalakar being aged, he could not manage the property. Hence the Plaintiff's father Digambarbuva Anantraj Jamodekar ("Digambar") was managing and looking after the suit property and also after the death of Kamalakar in or about 1941. The Plaintiff's grand father had predeceased Kamalakar, while Plaintiff's father Digambar was a child. Hence, after the death of Kamalakar, the suit property devolved 4/27 ::: Uploaded on - 25/03/2025 ::: Downloaded on - 29/03/2025 08:45:24 ::: P.H. Jayani 01 SA148.1993.doc upon the Digambar, Plaintiff and Plaintiff's mother-Defendant No.7. But Digambar being elderly and responsible, he was looking after the suit property as a care taker.
6.1) It was averred that, the Defendant Nos.2 to 6 practiced an undue influence and misrepresentation on Digambar and, behind the back of Plaintiff and Defendant No.7, caused Digambar to register the suit property to be the property belonging to a trust, under an impression that the suit property would remain as the private property. Accordingly, the Defendant No.1 declared the suit property as the trust property and it was given trust No.PTRA-873.
6.2) It was averred that, all the while Digambar had no knowledge as to what he was doing and what would be the consequences of his said act, because of the undue influence and the misrepresentation. Hence, said act of Digambar was not binding on Digambar himself and much less on the Plaintiff and Defendant No.7. It was averred that, even assuming that what Digambar did was binding on him, it is not binding upon the Plaintiff and Defendant No.7 as they never consented to any of the acts committed by Digambar. Thus even admitting the 1/3 rd portion of the suit property to be the trust property, the remaining 2/3rd portion thereof is definitely a private property of the Plaintiff and Defendant No.7. 6.3) It was averred that, the Plaintiff came to know about the conversion of the suit property by Digambar when the Plaintiff received a 5/27 ::: Uploaded on - 25/03/2025 ::: Downloaded on - 29/03/2025 08:45:24 ::: P.H. Jayani 01 SA148.1993.doc notice from the Defendant No.1 about the Application submitted by Defendant Nos.2 to 6, purporting to be of a scheme for the trust. Hence, the Plaintiff filed this suit. The Plaintiff's mother was not available for signing the plaint, therefore, she was arrayed as Defendant No.7. Thus, the suit was also filed as a representative under Order I, Rule 8 of the Code of Civil Procedure with a request to issue the necessary public notice so that any person interested in the suit property may get a chance to contest the suit.
6.4) It was averred that, the cause of action for the suit arose in or about September 1978, when the Defendants submitted the Application purporting to be the scheme, for approval by the Defendant No.1 within the jurisdiction of the trial Court. The suit was valued at Rs.50,000/- for jurisdiction and court fee etc. 6.5) The suit mainly sought for a declaration that the suit property is the private property belonging to the Plaintiff and Defendant No.7 and for permanent injunction thereby restraining the Defendant Nos.2 to 6 and others claiming through them from interfering with the possession and enjoyment of the Plaintiff over the suit property.
7) The Defendant No.1 was duly served. However, no written statement was filed on behalf of the Defendant No.1. Hence, the suit proceeded without a written statement by Defendant No.1.
8) The Defendants Nos.2 to 6 entered their written statement. 6/27 ::: Uploaded on - 25/03/2025 ::: Downloaded on - 29/03/2025 08:45:24 :::
P.H. Jayani 01 SA148.1993.doc The Defendants Nos.2 to 6 have not admitted and specifically denied all the material averments, allegations and submissions made against them in the plaint, claiming it to be false and prejudicial to their right, title and interest. The Defendants Nos.2 to 6 have specifically denied that the suit property was self acquired property of Kamalakar; that, it devolved upon the Plaintiff and his parents; and that, the Defendants used misrepresentation and undue influence and caused Digambar to create the Public Trust in respect of the suit property. The Defendants have denied that the Plaintiff came to know that his father Digambar created the Public Trust with respect to the suit property when the Defendant No.1-Charity Commissioner issued the notice of the Application of the scheme made by the Defendant Nos.2 to 6. It was denied that the Plaintiff had any cause of action and that, it arose in or about September 1978. It was contended that, the suit property was worth not less than Rs.One lakh on the date of suit. Therefore, the valuation of the suit for the purpose of the Court fee and jurisdiction at Rs. 50,000/- is incorrect. 8.1) The Defendants contended that, Anantraj was a friend of Kamalakar and not his son. That, Digambar was not the son of Anantraj. The former was a Chelaa and the latter was a Guru as per the tenets of Mahanubhao Cult. Under the circumstances, the suit property did not devolve upon the Plaintiff and Defendant No.7, on the death of Kamalakar. That, according to the tenets of Mahanubhao Cult, those who 7/27 ::: Uploaded on - 25/03/2025 ::: Downloaded on - 29/03/2025 08:45:24 ::: P.H. Jayani 01 SA148.1993.doc wish to be Gurus, should not marry and have children. Kamalakar and Anantraj were Guru as per the accepted notion of the term ' Guru' in Mahanubhao Cult. Digambar was a disciple of Anantraj and not his son. Hence, the Plaintiff has no right, title and interest in the suit property. 8.2) It was contended that, the trial Court has no jurisdiction to entertain and try the suit, since the suit property is the Public Trust property and, such a suit is barred under Section 80 of the Bombay Public Trust Act of 1950 ("the Act"). It was contended that, the suit was time barred since the suit property was declared to be the Public Trust on dated 12.12.1955. Therefore, the Plaintiff is not entitled for the reliefs he prayed for. Therefore, the suit be dismissed with costs.
9) The trial Court framed the following issues (at Exhibit-11) :-
1. Does the Plaintiff prove that a portion of the suit property belonged to one Kamalakar Buva Mahant, it being gifted to him by its former owner ?
2. Does he prove that said Kamalakar Buva Mahant Jamodekar constructed a structure in addition to the building gifted to him by its original owner with his own funds ?
3. Does he prove that Kamalakar Buva Mahant installed an idol of Lord Shree Krishna there with his own funds ?
4. Does he prove that he is the son of Digambarbuva Anant raj Jamodekar ?
5. Does he prove that Digambarbuva Anantraj Jamodekar was managing the suit property in or about 1941 when it is alleged that Kamalakar Buva Mahant died ?
6. Does he prove that his grand father was already dead in the life time of his great grand father ?
7. Does he prove that the suit property devolved upon him, his father and mother, as averted in last portion of para No.2 of the Plaint ?8/27 ::: Uploaded on - 25/03/2025 ::: Downloaded on - 29/03/2025 08:45:24 :::
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8. Does he prove that the suit property was the self acquired property of the Plaintiff's great grand father ?
9. Does he prove that the suit property vested in him, on the death of his great grand father ?
10. Does he prove that his father was merely his caretaker, from the death of his great grand father until the death of his father?
11. Does he prove that Defendant Nos.2 to 6 were in a position to exercise undue influence on his father ?
12. Does he prove that Defendant Nos.2 to 6 exercised undue influence on Digambar Anantraj and thereby got an application made to register the suit property as the property of a public trust ?
13. Does he prove that Registration of the suit property as Public Trust Property No.PTRA 893 is not binding on Digambar Anantraj ?
14. Does he prove that he has title to 1/3rd share in the suit property ?
15. Does he prove that Defendant No.7 has 1/3rd share in the suit property ?
16. Whether the suit property is worth more than Rs.1,00,000/-
that the Court fee paid by the Plaintiff is inadequate and that suit is liable to be rejected under Order 7 Rule 11 of C.P.C. ?
17. Whether the suit is barred under Section 80 of the Bombay Public Trust Act, since there is declaration that the suit property is a Public Trust ?
18. Whether the suit is time barred since the property is declared to be of Public Trust on 12th December, 1955 ?
19. Is the Plaintiff entitled to the declare for declaration and injunction ?
10) The Plaintiff adduced his evidence (at Exh.45) and examined Shri. Vasant Arjun Shinde, who was tenant in the suit property (Exh.196) and Shri. Chandrakant Rajaram Mathapati (Exh.197). In addition, the Plaintiff has served various documents in evidence.
11) No evidence was presented by or on behalf of Defendant No.1. However, Defendant Nos.2 to 6 have served the evidence of Defendant 9/27 ::: Uploaded on - 25/03/2025 ::: Downloaded on - 29/03/2025 08:45:24 ::: P.H. Jayani 01 SA148.1993.doc No.2-Shri. Murlidhar Dattatray Bhagwat (at Exh.203) and relied upon various documents in evidence.
12) After considering the oral and documentary evidence in the light of the rival submissions, the trial Court held that, Digambar was the father of the Plaintiff. Anantraj Bua Mahant was the father of Digambar. However, the trial Court noted that the Plaintiff has not produced any record to show that Anantraj was son of Kamlakar. The trial Court held that, the suit property is the Public Trust property. It is held that, the Plaintiff failed to prove the use of undue influence and misrepresentation by Defendant Nos.2 to 6, which caused Digambar to register the suit property to be the Public Trust property. Therefore, the trial Court held that, the suit is barred under Section 80 of the Act as the Civil Court has no jurisdiction to decide or deal with any question which is to be dealt with by any officer or authority under the Act. Further, the trial Court held that, the Plaintiff failed to prove that the suit was within limitation. Hence, the trial Court answered the issues accordingly and, dismissed the suit. Aggrieved, the Plaintiff filed the said RCA No.324/1989. The First Appellate Court confirmed the Judgment and Order dated 20.03.1989. Being further aggrieved, the Plaintiff has preferred this Appeal.
13) According to the Plaintiff, the suit property was gifted to Kamalakar as Gurudakshina by Parasobuva Gurubai Aai Mahanubhav vide Gift Deed (Exh.46) dated 17.12.1937. Kamalakar died on the date 10/27 ::: Uploaded on - 25/03/2025 ::: Downloaded on - 29/03/2025 08:45:24 ::: P.H. Jayani 01 SA148.1993.doc 19.06.1941. The Plaintiff asserted that, Kamalakar had a son by name Anantraj, who died in 1940. Anantraj had a son by name Digambar, who died on 12.07.1981 (vide Exh.187). The Plaintiff claimed that, his father was Digambar, his grand father was Anantraj and his great grand father was Kamalakar. However, the Defendants disputed this relationship contending that the Plaintiff was not the son of Digambar nor Digambar was the son of Anantraj. The Defendants further contended that, a person who takes Sanyas becomes a Mahant. Such a Mahant should not marry. Kamalakar, Anant and Digambar were such Mahants and, they were not supposed to marry.
14) To resolve the aforestated controversy, it is necessary to refer the documentary evidence on record. As recorded in the death extract of Digamber (Exh.187), Anantraj was father of Digambar and the latter expired on dated 12.07.1981. This fact permits to infer that Anantraj was married and he got the son by name Digambar, from the said wedlock. The full name of the Plaintiff is Nandkumar Digambar Jamodekar. The Plaintiff produced his S.S.C. certificate and school leaving certificate (Exh.185 & Exh.186), therein his father's name is mentioned as 'Digambar'. It is not the case that the said documents (Exhs.185 & 186) were forged. The Defendants have not adduced any documentary evidence in the rebuttal thereof. Therefore, there is no hurdle to rely upon the said documentary evidence. Accordingly, I hold that, Digambar was 11/27 ::: Uploaded on - 25/03/2025 ::: Downloaded on - 29/03/2025 08:45:24 ::: P.H. Jayani 01 SA148.1993.doc father of the Plaintiff.
15) The Plaintiff has produced a gift deed dated 23.11.1940, allegedly executed by Kamlakar. The gift deed mentions that Digambar is grand son of Kamlakar and the latter has been gifting the suit property to the former. This gift deed was not registered, therefore, it was not admitted in the evidence by the trial Court ( vide Order below Application at Exh.208). No other documentary evidence is produced by the Plaintiff to show that Anantraj was son of Kamlakar.
16) The extract of the property card (Exh.52) recorded that after the death of Kamalakar on 19.06.1941, Digambar succeeded him. The suit property is the temple of Lord Shri krishna (vide extract property card at Exh.52A), which was in the occupation ( vahiwat) of Digambar and, after the death of Digambar, the Plaintiff was shown as holder of the suit property. Digambar and Plaintiff spent money for the maintenance and repairs of the suit property (vide receipts at Exhs.55 to 117 and 162 to
167). The evidence shows that, the Plaintiff and his father Digambar had organised religious programmes in the suit property, by obtaining necessary permission (vide Exhs.168 to 173). Thus, it is evident that previously the suit property was in possession and occupation of Kamalakar, then of Digambar and lastly, of the Plaintiff. However, Digambar registered the suit property as the Public Trust by filing an Application on 04.11.1955 and as per the Order of the Assistant Charity 12/27 ::: Uploaded on - 25/03/2025 ::: Downloaded on - 29/03/2025 08:45:24 ::: P.H. Jayani 01 SA148.1993.doc Commissioner (vide Exhs.190 & Exh.191). Thereafter, the Defendant Nos.2 and 3 filed the Application No.225/78 with the Joint Charity Commissioner, Pune for framing the scheme and accordingly, the Joint Charity Commissioner framed the scheme in respect of the suit property as Public Trust by his Judgment and Order dated 19.09.1985 (Exh.192). Accordingly, change was made in the property card, thereby showing 5 persons as the holder/trustees of the suit property including the Defendant Nos.2 and 3 (vide extract property card Exh.188). When the Assistant Charity Commissioner, Pune registered the suit property as Public Trust (vide Exh.191), Digambar was shown as defacto and sole trustee.
17) On a careful scrutiny of the oral as well as the documentary evidence of the Defendants, it is evident that when Digambar filed an Application dated 04.11.1955 for registration of the suit property as the Public Trust, the Assistant Charity Commissioner made the necessary inquiry and passed the Order dated 12.12.1955 (Exh.191), thereby said Application of Digambar was allowed and the Trust was registered with a direction to issue the Trust Registration Certificate. Ultimately, the suit property was given the Public Trust No.PTRA/873. Said entry became effective immediately i.e., from 12.12.1995. Before passing that Order, the Assistant Charity Commissioner followed the procedure of Sections 18 and 19.
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P.H. Jayani 01 SA148.1993.doc 17.1) The main object of making the suit property as 'Public Trust'
was to maintain the Shri. Krishna Temple and observe the religious functions there, such as Gokulashtami, Datta Jayanti, Govindprabhu Jayanti, Chakaradhar Jayanti, Chaitra Padwa, etc. Admittedly, the suit property is two storeyed and some portion is occupied by tenants. The idol of Lord Shri Krishna has been installed in the room at ground floor. The evidence shows that devotees attending the temple and the religious functions, donate money, which has been a source of income of the said temple.
18) The Plaintiff challenged the registration of the suit property as Public Trust on the ground that the Defendant Nos.2 to 6 had used an inducement and misrepresentation against Digambar, and thus, caused him to register the suit property as Public Trust. In this regard, the Plaintiff relied upon a copy of the Application for inquiry (Exh.156), allegedly filed by Digambar with the Assistant Charity Commissioner. The Application (Exh.156) alleges that, some persons troubled the father of the Plaintiff and therefore, he prayed to initiate an inquiry by the Assistant Charity Commissioner on the said Application/complaint. 18.1) However, the Application (Exh.156) did not challenge the registration of the suit property as the Public Trust nor the Application made specific allegations against the Defendants. Insofar as the alleged undue influence and misrepresentation was concerned, if really Digambar 14/27 ::: Uploaded on - 25/03/2025 ::: Downloaded on - 29/03/2025 08:45:24 ::: P.H. Jayani 01 SA148.1993.doc had any grievance about registration of the suit property as Public Trust due to undue influence and misrepresentation by the Defendants, Digambar would not have omitted to state that fact in the Application (Exh.156). Digambar did not file a separate application for cancellation of the registration of the suit property as the Public Trust. Except bald averment, the Plaintiff has not explained the undue influence and misrepresentation which was responsible for registration of the suit property as the Public Trust. The time period of said undue influence and misrepresentation is also missing in the plaint and in the evidence of the Plaintiff. Thus, the theory of the undue influence and misrepresentation behind registration of the suit property as the Public Trust was completely vague and hollow.
19) The Defendants contended that the suit is barred by limitation. Admittedly, the suit property is registered as a Public Trust by Order dated 12.12.1955, passed by the Joint Charity Commissioner, Pune vide Exh.191. The Plaintiff claimed that the cause of action for the suit arose in September 1978, when the Defendant No.1 submitted the Application for approval of the scheme by Defendant No.1. It was averred that the Plaintiff came to know about the said Application of the Defendants after receiving the notice thereof from the Defendant No.1, in September, 1978. However, as noted by the trial Court, the Plaintiff has not produced the said notice on record. Therefore, it cannot be accepted 15/27 ::: Uploaded on - 25/03/2025 ::: Downloaded on - 29/03/2025 08:45:24 ::: P.H. Jayani 01 SA148.1993.doc that the cause of action arose in September 1978. The trial Court also noted that, since the Assistant Charity Commissioner, Pune has passed the Order of registration of the suit property as Public Trust, necessary record of such Public Trust was prepared in the register of the Public Trust. Therefore, the trial Court held that, the registration of the suit property as Public Trust itself was a notice to the public at large and, it is presumed that the Plaintiff and Defendant No.7 had knowledge about the registration of the suit property as Public Trust from 12.12.1955. However, the Plaintiff and Defendant No.7 failed to initiate necessary action in time although according to them, the registration of the suit property as Public Trust was illegal due to the use of undue influence and misrepresentation by the Defendants.
19.1) As provided in Article 58 of the Limitation Act 1963, the limitation period to file this suit was three years since when the right to sue first accrued to the Plaintiff and Defendant No.7. The Plaintiff and the Defendant No.7 were aggrieved by registration of the suit property as Public Trust since 12.12.1955. Therefore, the trial Court has rightly held that, they ought to have filed the suit within three years thereafter. However, this suit was filed after a considerable delay on 21.06.1983. Therefore, the Plaintiff's suit was barred by limitation as contended by Defendant Nos.2 to 6.
20) Now turning to third substantive question of law. It is trite 16/27 ::: Uploaded on - 25/03/2025 ::: Downloaded on - 29/03/2025 08:45:24 ::: P.H. Jayani 01 SA148.1993.doc
that, a person pleading adverse possession has no equities in his favour. Since, he is trying to defeat the rights of the true owner, it is for him to clearly plead and establish all facts necessary to prove his adverse possession. In the case in hand, the Plaintiff has not pleaded since when his possession over the suit property has been hostile to the Public Trust in question and the Defendants. On the contrary, the Plaintiff has claimed that after the death of Kamalakar, the suit property devolved upon Digambar, Plaintiff and Plaintiff's mother-Defendant No.7 and thus, they become it's owner by succession.
21) In view of the above discussion, my answer to the aforestated substantive questions of law at Sr. Nos. 1 to 3 is in negative.
22) Mr. Joshi, the learned Advocate for the Plaintiff has not disputed the findings recorded by the trial Court and as confirmed by the First Appellate Court. However, Mr. Joshi emphatically submitted that since the suit was barred before the Civil Court as held by the trial Court, the said Court should not have recorded its finding and decided the other issues as it is prohibited in law. Therefore, the impugned Judgment and Order to the extent of other issues is without jurisdiction and, it is also nullity. Mr Joshi strenuously submitted that although since beginning the Plaintiff maintained that the Civil Court has jurisdiction to try and adjudicate this suit, the question of law as to the jurisdiction can be raised for the first time in this second appeal. Therefore, according to Mr. Joshi 17/27 ::: Uploaded on - 25/03/2025 ::: Downloaded on - 29/03/2025 08:45:24 ::: P.H. Jayani 01 SA148.1993.doc the findings recorded by the trial Court on other issues should be set aside. To accept this submission, Mr. Joshi relied upon following decisions.
i) Mahibubi Abdul Aziz and others. Vs. Sayed Abdul Majid and others1. In this case the Respondent Nos. 1 and 2 instituted a suit in the Court of the Civil Judge, J. D., Pune and prayed for a declaration that the suit property is owned by Yasin Zuk Darga and Kabrastan and is not a private property of the petitioners herein. The matter went right upto the Apex Court against the interlocutory order where the Apex Court directed the Trial Court to deal with the question of jurisdiction as a preliminary issue, if warranted by the pleadings. Accordingly, Trial Court framed preliminary issue, i.e., "Whether this Court has Jurisdiction to try and entertain the present suit?" There was serious dispute about the title in respect of the suit property. The owners approached the Joint Charity Commissioner for a declaration that the property in question is a trust property. Said proceedings was disposed of by the Joint Charity Commissioner holding that the suit property is not the property of the said trust. Said decision was confirmed in revision before the Charity Commissioner and subsequently by the District Judge, Pune. Thus, the question whether the property belongs to the trust or not had become final to the extent that it was conclusively decided by the District Judge.
1. 2001 (2) Mh.L.J. 512.
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P.H. Jayani 01 SA148.1993.doc Notwithstanding this position, the Court below, while holding that the Civil Court has jurisdiction to grant relief in terms of prayer clause (a) of the suit, mainly held that the question regarding the title of the suit property is a complicated question. In this background and in view of the provisions of Section 80 and 19 of the Act, the Hon'ble Supreme Court held that, even if the question regarding the title of the suit property was a complicated one, even then it was for the Competent Authority under the Act, in the first instance, to pronounce in that behalf and only thereafter the Civil Court would proceed to exercise its jurisdiction to examine the said aspect. The Civil Court by itself cannot be permitted to usurp the exclusive Jurisdiction of the Competent Authority, in view of the express bar under Section 80 of the Act, on the assumption that the question of title of the suit property is a complicated one. This approach is wholly unstable.
ii) Harshad Chimanlal Modi Vs. DLF Universal Ltd. And Another 2. In this case, it is held that :
"Where a court takes upon itself to exercise a jurisdiction it does not possess, its decision amounts to nothing. A decree passed by a court having no jurisdiction is non est and its invalidity can be set up whenever it is sought to be enforced as a foundation for a right, even at the stage of execution or in collateral proceedings. A decree passed by a court without jurisdiction is a coram non judice."
2. (2005) 7 SCC 791.
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P.H. Jayani 01 SA148.1993.doc iii) Lalita Panjabrao Phalke Vs. Jeevan Tulshiram Phalke 3, therein, in paragraph 50, this Court held that:
"50. It is a well settled law that any order passed by a Court without jurisdiction would be coram non judice being a nullity and the same ordinarily should not be given effect to as it is non est i.e. non-existent in the eyes of law. Therefore, the plea about its invalidity can be raised in any proceedings and it is not necessary to claim such declaration and that such an order is void. Moreover, any order passed or action taken pursuant to any order which is a nullity or in furtherance thereof, would also be nullities."
iv) Mohammad Laiquiddin And Another Vs. Kamala Devi Misra (Dead) by LRs. And Others4. In this case it is held that, "... when a question of law is raised on the basis of the pleadings and evidence on record which might not have been raised before the courts below, it is difficult to hold that such question of law cannot be permitted for the first time before the High Court."
23) Mr. Pawar, the learned Advocate for the Defendant No.2, on the other hand, submitted that it is settled law that the trial Court to decide all issues instead of going for a decision on a preliminary issue. He submitted that looking at the rival pleadings, the trial Court has framed
3. 2023 (6) Mh.L.J. 619.
4. (2010) 2 SCC 407.
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P.H. Jayani 01 SA148.1993.doc the necessary issues, which discretion cannot be said to have been exercised erroneously. He submitted that, up-to the First Appellate Court the Plaintiff maintained that the Civil Court has the jurisdiction to hear and decide the suit in all respect. Therefore, the claim of the Plaintiff that the findings and the decision on other issues is without jurisdiction, is not correct and it is with oblique motive. Therefore, Mr. Pawar submitted that the submissions made by Mr. Joshi be rejected. To accept this contention, Mr. Pawar cited the following reported cases.
i) Sandhya Rani Roy Choudhury Vs. Hiranmoy Sekhar Das Astopati And Anr.5 , therein in paragraph 18 it is held that,"it is always advisable to get all the issues resolved instead of going for a decision on a preliminary issue, unless, of course the same can be resorted to on the basis of ex-facie clinching materials of bar of the suit for want of jurisdiction or bar of the suit created by any law."
ii) Agricultural Produce Marketing Committee, Bangalore Vs. State of Karnataka And Others.6 In this case, despite the fact that a number of issues/grounds were raised before the High Court on the legality and validity of the acquisition proceedings, the Court decided only one issue. Whereas a number of issues/grounds were raised and as such the original reliefs sought were the main reliefs which were required to be dealt with
5. (2006) 1 GLR 184.
6. (2022) 7 SCC 796.
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P.H. Jayani 01 SA148.1993.doc and considered. However, the High Court did not give findings on the other issues/grounds and on the reliefs sought and disposed of the writ petitions considering only one relief/ground, namely, whether the acquisition proceedings have lapsed by virtue of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act of 2013. Therefore, it is held that the High Court ought to have considered the other issues and ought to have given findings on other issues also. Consequently, the Hon'ble Supreme Court remanded the matters to the High Court for deciding the writ petitions afresh on all other issues. In this regard, the Hon'ble Supreme Court considered the decision in Nusli Neville Wadia Vs. Ivory Properties [(2020) 6 SCC 557] wherein it has been observed and held that, after the amendment w.e.f. 01.02.1977, though Order 14 Rule 2 (2) enables the court to decide the issue of law as a preliminary issue in case the same relates to (i) jurisdiction of court or (ii) a bar to suit created by any law for the time being in force, a departure has been made in amended provision whereby now it mandates the court to pronounce judgment on all issues notwithstanding that a case may be disposed of on a preliminary issue. It is further observed that intendment behind this departure is to avoid remand in an appealable case for deciding other issues.
iii) Kalikadevi and Others Vs. Shivasaharanand Sadhu Maharaj and Others. In this case, it is held that it is not open to the Civil Court to refer 22/27 ::: Uploaded on - 25/03/2025 ::: Downloaded on - 29/03/2025 08:45:24 ::: P.H. Jayani 01 SA148.1993.doc an issue relating to the property of a Public Trust, for decision by the Deputy or Assistant Charity Commissioner.
24) In Sathyanath and Anr. vs. Sarojamani7, the challenge in the appeal was to an Order dated 03.09.2021 whereby in the revision petition filed by the defendant under Article 227 of the Constitution of India, the trial Court was directed to frame preliminary issue as to whether the suit is barred by res judicata. While examining this challenge, the Apex Court considered the provisions of Section 11, Or. 14 R. 2, Or. 41 Rr. 24 & 25 and Or. 20 R. 5 of the CPC, various earlier pronouncements by the Hon'ble Supreme Court and several High Courts.
24.1) In paragraph 6, the Apex Court referred the pre-amended Or. 14 R.2. In paragraph 7, the Apex Court held that, in a judgment reported as Major S. S. Khanna vs. Brig. F. J. Dillon [AIR 1964 SC 497], it was held that under Order 14 Rule 2 of the Code where issues both of law and of fact arise in the same suit and the Court is of opinion that the case or any part thereof may be disposed of on the issues of law only, it shall try those issues first, and postpone the settlement of the issues of fact until other issues of law have been determined. Then the Apex Court considered the amended provisions of Or. 14 R.2 and in paragraphs 17 and 23, it is held as under :-
"17. This Court in Ramesh B. Desai held that the principles
7. (2022) 7 SCC 644.23/27 ::: Uploaded on - 25/03/2025 ::: Downloaded on - 29/03/2025 08:45:24 :::
P.H. Jayani 01 SA148.1993.doc enunciated in Major S. S. Khanna still hold good and the Code confers no jurisdiction upon the Court to try a suit on mixed issues of law and fact as a preliminary issue and where the decision on issue depends upon the question of fact, it cannot be tried as a preliminary issue. The said finding arises from the provision of Order XIV Rule 2 clause (a) and (b). After the amendment, discretion has been given to the Court by the expression 'may' used in sub-rule (2) to try the issue relating to the jurisdiction of the Court i.e. territorial and pecuniary jurisdiction, or a bar to the suit created by any law for the time being in force i.e., the bar to file a suit before the Civil Court such as under the Securitisation and Reconstruction of Financial Assets and Enforcement of Security Interest Act, 2002 and numerous other laws particularly relating to land reforms. Hence, if Order XIV Rule 2 is read along with Order XII Rule 5, the Court is expected to decide all the issues together unless the bar of jurisdiction of the Court or bar to the suit in terms of sub-rule (2) clause (a) and (b) arises. The intention to substitute Rule 2 is the speedy disposal of the lis on a question which oust either the jurisdiction of the Court or bars the plaintiff to sue before the Civil Court.
"xxx xxx xxx"
23. The different judgments of the High Court referred to above are in consonance with the principles laid down by this Court in Ramesh B. Desai (Supra) that not all issues of law can be decided as preliminary issues. Only those issues of law can be decided as preliminary issues which fell within the ambit of clause (a) relating to the "jurisdiction of the Court"24/27 ::: Uploaded on - 25/03/2025 ::: Downloaded on - 29/03/2025 08:45:24 :::
P.H. Jayani 01 SA148.1993.doc and (b) which deal with the "bar to the suit created by any law for the time being in force." The reason to substitute Rule 2 is to avoid piecemeal trial, protracted litigation and possibility of remand of the case, where the appellate Court differs with the decision of the trial Court on the preliminary issues upon which the trial Court had decided.
25) Considering the law laid down in the aforesaid reported decisions it is clear that, not all issues of law can be decided as preliminary issues. Only those issues of law can be decided as preliminary issues which fell within the ambit of clause (a) relating to the "jurisdiction of the Court" and (b) which deal with the "bar to the suit created by any law for the time being in force". The reason to substitute Rule 2 is to avoid piecemeal trial, protracted litigation and possibility of remand of the case, where the Appellate Court differs with the decision of the trial Court on the preliminary issues upon which the trial Court had decided.
26) In the case in hand, the Plaintiff specifically asserted that, the undue influence and misrepresentation caused to Digambar by the Defendants resulted in registration of the suit property as the Public Trust property. However, as noted above, Digambar never challenged the said registration although he had opportunity and time. As such, said registration had already attained finality, on the day, when the Plaintiff allegedly came to know the fact of the said registration.
26.1) It was averred that the Plaintiff was successor of Kamalakar 25/27 ::: Uploaded on - 25/03/2025 ::: Downloaded on - 29/03/2025 08:45:24 ::: P.H. Jayani 01 SA148.1993.doc and on Kamlakar's death, the suit property devolved upon the Plaintiff and others. Further, it was averred that Digambar registered the suit property as the Public Trust because of the undue influence and misrepresentation by the Defendants. Hence, said act of Digambar was not binding on Digambar himself and much less on the Plaintiff and Defendant No.7. It was averred that, even assuming that what Digambar did was binding on him, it was not binding upon the Plaintiff and Defendant No.7 as they never consented to the said act of Digambar. Thus, even admitting the 1/3rd portion of the suit property to be the trust property, the remaining 2/3rd portion thereof is definitely a private property of the Plaintiff and Defendant No.7. Therefore, the Plaintiff prayed to declare that the registration of the suit property as the Public Trust was not binding on Digambar and others.
26.2) However, the trial Court decided the suit mainly on three aspects, i.e., whether the Plaintiff was the successor of Kamalakar, whether the suit was barred under Section 80 of the Act for want of jurisdiction over the subject matter of the suit and whether the suit was barred by the limitation. Therefore, the trial Court in its Judgment specifically noted that further dispute between the parties need not be taken into consideration. Consequently, one of the grounds of challenge in the First Appeal by the Plaintiff was that, the trial Court has not decided all the issues. However, the First Appellate Court decided the 26/27 ::: Uploaded on - 25/03/2025 ::: Downloaded on - 29/03/2025 08:45:24 ::: P.H. Jayani 01 SA148.1993.doc Appeal framing only three points, i.e. of limitation, jurisdiction and entitlement of the Plaintiff to the relief of declaration and injunction. This approach of both the Courts below cannot be said to be against the law enunciated in the reported cases referred above. However, it was argued that the trial Court recorded its findings on all the issues and also gave a judgment on it.
26.3) In view thereof, I answer the fourth substantive question of law in the negative.
27) In the backdrop of the negative findings, I hold that there is no infirmity in the impugned Judgment and Order that would warrant interference and its setting aside. As a result, the Appeal is liable to be dismissed and Appeal is dismissed, accordingly.
27.1) Parties to bear their own costs.
27.2) Appeal stands disposed of in aforesaid terms. 27.3) Record and proceedings received from the trial Court and the Appellate Court be sent back, immediately.
Digitally signed by PREETI PREETI HEERO [ SHYAM C. CHANDAK, J.] HEERO JAYANI JAYANI Date:
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