Chattisgarh High Court
Kawardha Rajpar.Sarv.Mandir Nyas And ... vs Mahant Rambali Das And Another 31 ... on 14 October, 2019
Author: Sanjay K. Agrawal
Bench: Sanjay K. Agrawal
1
AFR
HIGH COURT OF CHHATTISGARH, BILASPUR
Second Appeal No.87 of 2006
Judgment Reserved on :12.09.2019
Judgment Delivered on: 14.10.2019
1. Kawardha Rajpariwar Sarvajanik Mandir Nyas (Regis
tered) dwara Smt. Shashi prabha Devi, aged about 62
years, Pramukh Nyasi Avam Sarvarakar Kawardha Raj
Pariwar Sarvajanik Mandir Nyas Niwasi Moti Palace,
Kawardha, Zila - Kawardha (Chhattisgarh)
Appellant/Defendant No.3
2. Yogeshwar Raj Singh, aged about 35 years, S/o Shri
Vishwa Raj Singh, Nyasi, Kawardha Raj Sarvajanik
Mandir Nyas Niwasi Moti Palace, Kawardha, Zila -
Kawardha (Chhattisgarh)
Appellant/Defendant No.1
Versus
1. Mahant Rambali Das, aged about 55 years, Guru Mangal
Das, Niwasi Gram Ramhepur, Tahsil Sahaspur Lo
hara, District Kawardha (Chhattisgarh)
Respondent No.2/Plaintiff
2. State of Chhattisgarh dwara Collector, Kawardha,
District Kawardha (Chhattisgarh)
Respondents
For Appellants/Def.No.1&2 : Mr.Ashish Shrivastava and
Mr.Anurag Verma, Advocates
For Res.No.1/Plaintiff : Mr.P.K.Verma, Senior Advocate
Mr.Virendra Verma and
Mr.Anoop Mazumdar, Advocates
For Respondent No.2/State : Ms Shivali Dubey, P.L.
Hon'ble Shri Justice Sanjay K. Agrawal
C.A.V. Judgment
1. The substantial questions of law involved,
formulated and to be answered in this second appeal
2
preferred by defendants No.1 and 3 are as under:
"1. Whether the suit filed by the plaintiff
in the capacity of Sarvarakar of the suit
temple and the properties thereof was not
maintainable in view of Section 32 of the
M.P. Public Trust Act, 1951 ?
2. Whether the Courts below committed an
error of law in holding that the Jamat
Mandir and its assets were not the
properties included in the Public Trust
created by the defendant by order dated
27/11/57 and the creation of the same was
not valid in accordance with law ?"
[For the sake of convenience, the parties would
be referred hereinafter as per their status shown
in the suit before the trial Court].
2. Sole plaintiffRambalidas Guru brought a suit for
declaration of title, permanent injunction and
possession with respect to the property shown in
Schedule 'A' appended with the plaint stating inter
alia that Jamat Mandir was constructed and deity was
installed therein 15 years prior to the date of
institution of suit by Shri Harivyasi Mahanirwani
Akhada and according to the custom prevalent, he is
Mahant and Sarvarakar of that temple and maintaining
the suit temple since last 16 years and the suit
land appended to Schedule 'A' of said temple was
also given on lease to some persons, but defendant
No.1 has dispossessed him in the month of June, 1996
3
and therefore, he is entitled for the aforesaid
reliefs, which was opposed by defendant No.1 by
filing written statement and thereafter, defendant
No.3/public trust was impleaded as party defendant.
Defendant No.3 filed separate written statement
stating interalia that in the year 1949, Kawardha
Rajpariwar constructed 17 temples including the suit
temple i.e. Jamat Mandir and constituted temple
committee for management of these temples. In the
year 195455, Rajmata Smt. Devkumari Devi made an
application for registration as public trust for all
these temples, but the SubDivisional Officer,
Kawardha by order dated 9.8.56 only recommended 6
temples to be included as public trust excluding
JamatMandir, against which, appeal was preferred
before the Collector. Shri R.P. Mishra, the then
Additional Collector, Durg by order dated 27.11.57
(Ex.D14) directed Jamat Mandir to be also included
as public trust and also held that it is the
property of defendant No.3/trust and therefore, the
plaintiff is not entitled for any decree of
declaration of title and permanent injunction and
the suit deserves to be dismissed.
3. The trial Court decreed the suit of the plaintiff
holding that the order directing the said temple to
4
be included as public trust was passed on 27.11.57
(Ex.D14) by the Additional Collector, Durg, who has
no jurisdiction under Section 3 of the Chhattisgarh
Public Trusts Act, 1951 (hereinafter called as "the
Act of 1951") in the light of judgment rendered by
the Madhya Pradesh High Court in the matter of
Budhoolal Vishwakarma and another v. Registrar,
Public Trusts, Jabalpur and others1, which was upheld
by the first appellate Court. Questioning the
judgment and decree passed by the first appellate
Court, this second appeal under Section 100 of the
CPC has been filed by the appellants/defendants No.1
and 3, in which substantial questions of law have
been framed by this Court, which have been setout
in opening paragraph of this judgment.
4. Mr.Ashish Shrivastava, learned counsel for the
appellants/defendants No.1 and 3, would submit that
under Section 3 of the Act of 1951 though the
Collector was empowered to register a trust under
the Act of 1951, but in the present case, the
Additional Collector has passed order on 27.11.57
(Ex.D14) directing inclusion of suit temple and its
property into public trust, but thereafter in order
to validate the order dated 27.11.57 (Ex.D14)
passed by the Additional Collector, Durg and others,
1 1964 M.P.L.J. 887
5
the Madhya Pradesh Public Trusts (Amendment and
Validation) Act, 1964 (hereinafter called as "the
Validation Act of 1964") was enacted, which came
into force w.e.f. 25.9.64 and all things done prior
to 10th July, 1964 was made valid and therefore, the
judgment rendered by the Madhya Pradesh High Court
in Budhoolal Vishwakarma (supra) was inapplicable
and wrongly applied by both the Courts below by not
noticing the provisions contained in Section 4 of
the Validation Act of 1964, as such, Ex.D14 is a
valid document in which the suit temple has already
been included as public trust, which cannot be held
illegal by two Courts below particularly when the
order dated 27.11.57 (Ex.D14) was not even
questioned seeking declaration or cancellation of
that order by the plaintiff. He would further submit
that the suit as framed and filed was not
maintainable in view of Section 32 of the Act of
1951, as such, the second appeal deserves to be
allowed and the impugned judgment and decree
deserves to be set aside and the suit be dismissed
with cost.
5. Mr.P.K.Verma, learned Senior Counsel assisted by
Mr.Virendra Verma and Mr.Anoop Mazumdar, learned
counsel for respondent No.1/plaintiff, would submit
6
that the plaintiff has already filed applications
under Order 6 Rule 17 and under Order 41 Rule 27 of
the CPC for admitting the additional evidence on
record as now the suit temple has already been
registered as public trust by order dated 24.4.2007,
therefore, the suit as framed and filed would be
maintainable and bar under Section 32 of the Act of
1951 would not apply. He relied upon the judgment of
the Madhya Pradesh High Court in the matter of
Jawaharlal Chunnilal v. Ramkrishna Malik alias
Jafarmal2. He would further submit that the
plaintiff's suit has been decreed on the basis of
adverse possession by recording concurrent
conclusion by two Courts below, as such, the second
appeal deserves to be dismissed.
6. I have heard learned counsel appearing for the
parties and considered their rival submissions made
hereinabove thoughtfully and also went through the
records with utmost circumspection.
Answer to substantial question of law No.1:
7. In order to consider the abovestated substantial
question of law, it would be appropriate to notice
Section 32 of the Act of 1951, which states as
under:
"32. Bar to hear or decide suits. (1) No
2 1962 MPLJ 461
7
suit to enforce a right on behalf of a
public trust which has not been registered
under this Act shall be heard or decided in
any court.
(2) The provisions of subsection (1) shall
apply to claim or set off or other
proceedings to enforce a right on behalf of
such public trust."
8. A studied perusal of the aforesaid provision would
show that it creates a bar against the public trust
which is required to be registered under the Act.
The bar is with regard to hearing and deciding of
any suit, claim or set off or any other proceeding
to enforce a right on behalf of such a public trust.
The intention of creating such a bar appears to be
that such trusts are discouraged in working without
registration under the Act.
9. The Madhya Pradesh High Court in the matter of Kesa
alias Keshuram and others v. Kalu Devaji and others3
while highlighting the object behind enacting
Section 32 of the Act of 1951 held that it doesn't
bar any suit being filed against the unregistered
public trust and observed as under:
"2. Section 32 of the Madhya Pradesh Public
Trusts Act provides that no suit to enforce
a right on behalf of a public Trust which
has not been registered under the Act shall
be heard or decided by any Court. This
section does not prohibit any suit being
filed against the public Trust. If this is
so, it must be held that if any decree is
3 1973 JLJ 918
8
passed against the public Trust, it will
have a right to challenge the same in appeal
and that would not be treated as any attempt
to enforce a right on behalf of the public
Trust. There is, therefore, no question of
the appeal being stayed till the public
Trust is registered under the Madhya Pradesh
Public Trusts Act. If the right to appeal is
denied to the public Trust, which is made
the defendant, it would create a very
anomalous situation. All sorts of
unwarranted decrees would be obtained
against the public Trust and it would be
denied the right to challenge the validity
of the decrees only for the reason that the
Trust was not registered. Apart from this I
do not find any justification for vacating
the stay order already named by the lower
appellate Court. If the hearing of the
appeal was to be stayed, it was also
necessary that the execution of the decree
should be stayed. .........."
10. In the matter of Jawaharlal Chunnilal v.
Ramkrishna Malik @ Jafarmal4 the High Court of Madhya
Pradesh has clearly held that the bar provided by
Section 32 of the M.P. Public Trusts Act, 1951 is
against the hearing or deciding of suits or appeals
and not against their institution. Therefore, where
an objection to the tenability of a suit filed on
behalf of the trust on the ground of its non
registration as a public trust is successfully
raised, the procedure to be adopted should be to
stay the decision on merits to enable the party to
obtain its registration.
11. Reverting to the facts of the present case in
4 1962 MPLJ 461
9
light of the provisions contained in Section 32 of
the Act of 1951 and as interpreted by the Madhya
Pradesh High Court in the matters of Kesa alias
Keshuram (supra) and Jawaharlal Chunnilal (supra),
it is quite vivid that the instant suit from which
this second appeal has arisen was not filed to
enforce a right on behalf of unregistered public
trust, but the suit was filed by the plaintiff
herein in his individual capacity against the
registered public trust/defendant No.3 who was
impleaded as defendant No.3 by order of the trial
Court dated 06.12.2000 claiming his own right, title
and interest over the property attached with Jamat
Mandir against defendant No.3, therefore, the bar
contained in Section 32 of the Act of 1951 would not
be applicable and the plaintiff's suit cannot be
said to be not maintainable on that score.
12. In view of the aforesaid analysis, it is held
that the suit as framed and filed by the
appellant/plaintiff against defendant No.3/public
trust was maintainable and it was not barred by the
provisions contained in Section 32(1) of the Act of
1951. Accordingly, the substantial question of law
is answered in favour of the plaintiff and against
defendants No. 1 & 3.
10
Answer to substantial question of law No.2
13. Defendant No. 3 is a public trust registered
under the provisions contained in Section 4 of the
Act of 1951 by the order dated 27.11.1957 (Ex.D14)
passed by Shri R. P. Mishra, Additional Collector
directing registration of seven temples including
JamatMandir as a public trust holding the suit
property to be held by that temples by partly
accepting the recommendations of SubDivisional
Officer dated 08.05.1956 (Ex.D13). In a suit filed
by the plaintiff against defendant No.1Yogeshwar
Raj Singh, defendant No.3/public trust was added as
party defendant by order dated 06.12.2000 and relief
was sought that defendant No. 1 & 3 have
unauthorizedly dispossessed the plaintiff from the
suit premises, agricultural lands held by him for
maintenance and upkeep of Jamat temple. Defendant
No. 1 & 3 setup their defence that the suit
property is the trust property attached with Jamat
Mandir duly declared so by the Registrar, Public
Trusts by order dated 27.11.1957 (Ex. D14),
therefore, the plaintiff has no right/title over the
suit property and the suit is liable to be
dismissed. The trial Court by its judgment, while
deciding the issue No. 3 which relates to whether
11
the Jamatmandir is a temple held by defendant No.3,
returned a finding that order dated 27.11.1957 (Ex.
D14) was passed by the Additional Collector under
Section 3 of the Act of 1951, which is ex facie
illegal and not binding on the plaintiff in view of
judgment rendered by Madhya Pradesh High Court in
the matter of Budhoolal Vishwakarma (supra).
14. In Budhoolal Vishwakarma (supra), Their
Lordships have clearly held that under Sections 3 &
4 of the Act of 1951 the Collector is a persona
designata and he alone could act as Registrar of the
Public Trusts and no one else. It was further held
that the Additional Collector would have no power to
act as Registrar of the Public Trusts and order
passed by the Additional Collector as Registrar,
Public Trusts is without jurisdiction and without
authority of law.
15. Thereafter, the competent legislature enacted
the Madhya Pradesh Public Trusts (Amendment and
Validation) Act, 1964 (hereinafter called as 'Act of
1964) to amend the Madhya Pradesh Public Trusts Act,
1951 and to validate things done, proceedings and
actions taken and orders passed by certain officers
under the said Act, and inserted following provision
in the principal Act of 1951.
12
"34A. Delegation of powers by Registrar.
Subject to the provisions of this Act and to
such restrictions and conditions, as may be
prescribed, the Registrar may, by order in
writing, delegate all or any of his powers
and duties under this Act to any revenue
officer of his district not below the rank
of a SubDivisional Officer."
3. Section 2 to have retrospective effect. -
The principal Act shall be read and
construed as if the amendment made by
Section 2 had formed part of the principal
Act from the commencement thereof.
4. Validation of things done, actions and
proceedings taken and orders passed by
certain officers under the principal Act. -
Notwithstanding anything contained in the
principal Act, all things done, proceedings
and actions taken and orders passed by the
officers whose names and designation are
specified in the Schedule below purporting
to act as Registrar under the principal Act
at any time prior to the 10th July, 1964
shall, for all purposes, be deemed to be and
to have always been, validly done, taken or
passed as if the Registrar of the district
to which they were for the time being posted
had, at all material times empowered them in
this behalf under Section 34A and the
validity of any such thing done, action or
proceedings taken or order passed shall not
be called into question in any court of law
or before any authority whatsoever, on the
ground of defect in the delegation of powers
to any such officer.
5. Repeal and saving - (1) the Madhya
Pradesh Public Trusts (Amendment and
Validation) Ordinance, 1964 (No. 6 of 1964),
is hereby repealed.
(2) Notwithstanding such repeal, anything
done or any action taken under the said
Ordinance shall be deemed to have been done
or taken under this Act as if this Act were
in force on the date on which such thing was
done or action was taken."
16. The Schedule enacted under Section 4, name,
13
designation and the district was given. Entry No.
19 is relevant to case in hand which states as
under:
Schedule
S. No. Name Designation District
(1) (2) (3) (4)
118 **** **** ****
19. Shri Additional Durg
R.P.Mishra Collector
17. The Validation Act, 1964 was enacted on 25.09.1964
inserting Section 34A in the Principal Act by which
the Registrar is authorized to delegate all or any
of his powers or duties under the Act to any Revenue
Officer not below the rank of the SubDivisional
Officer. Section 4 of the Validation Act of 1964
validates the proceeding taken and order passed by
certain officers under the principal Act i.e. Act of
1951 by holding all things done, proceedings and
actions taken and orders passed by the officers
whose names and designation are specified in the
Schedule below purporting to act as Registrar under
the Principal Act at any time prior to the 10 th July,
1964 shall, for all purposes, be deemed to be and to
have always been, validly done, taken or passed as
if the Registrar of the district to which they were
for the time being posted had, at all material times
14
empowered them in this behalf under Section 34A and
the validity of any such thing done, action or
proceedings taken or order passed shall not be
called into question in any court of law or before
any authority whatsoever, on the ground of defect in
the delegation of powers to any such officer.
18. The Effect of validation was considered by the
Supreme Court in the matter of Bhubaneshwar Singh
and another v. Union of India and others5 and it was
held as under:
"11. From time to time controversy has
arisen as to whether the effect of judicial
pronouncements of the High Court or the
Supreme Court can be wiped out by amending
the legislation with retrospective effect.
Many such Amending Acts are called
Validating Acts, validating the action taken
under the particular enactments by removing
the defect in the statute retrospectively
because of which the statute or the part of
it had been declared ultra vires. Such
exercise has been held by this Court as not
to amount to encroachment on the judicial
power of the courts. The exercise of
rendering ineffective the judgments or
orders of competent courts by changing the
very basis by legislation is a wellknown
device of validating legislation. This Court
has repeatedly pointed out that such
validating legislation which removes the
cause of the invalidity cannot be considered
to be an encroachment on judicial power. At
the same time, any action in exercise of the
power under any enactment which has been
declared to be invalid by a court cannot be
made valid by a Validating Act by merely
saying so unless the defect which has been
5 (1994) 6 SCC 77
15
pointed out by the court is removed with
retrospective effect. The validating
legislation must remove the cause of
invalidity. Till such defect or the lack of
authority pointed out by the court under a
statute is removed by the subsequent
enactment with retrospective effect, the
binding nature of the judgment of the court
cannot be ignored."
19. Reverting to facts of the case, it is quite vivid
that Smt. Deokunwar Dal, Rajmata of Kawardha filed an
application under Section 4 of Act of 1951 for
registration of 17 temples as public trust including
Jamatmandir to whom the suit properties belong. The
SubDivisional Officer (R.) while making an enquiry
on an application filed under Section 4 of the Act of
1951 on behalf of defendant No.3, did not make any
recommendation for registration of Jamatmandir as
public trust and made recommendation with regard to 6
temples to the Registrar, Public Trusts, for
registration. The following paragraphs of the
recommendation (Ex.D13) made by the SDO (R.) is
relevant and extracted for sake of convenience:
In the Court of SubDivisional Officer, Kawardha
Revenue Case No. 2 XXXIII/9 of 5455
Applicant : Shrimati Deokunwar Das Rajmata, Saniba
Kawardha
xx
::Report::
This is an application presented by Shrimati
Deokunwar Dal Rajmata of Kawardha, through her
counsel Shri Thoke, under Section 4 of the M.P.
Public Trust Act, 1951 for registration of 17
16
mandirs as public Trusts. The applicant has
deposited Rs. 5/ for registration fees as required
by Section 5(iii) of the M.P. Public Trust Rules
along with other documents in accordance with the
provisions 1 to 10 of Section 4(3) of the Act.
(2) On receipt of the application & notice in
form IV was published in the official Gazette no. 6
854, for inviting objections of interested persons
in the public Trusts, but no objections were filed
within the stipulated time.
(3) During the pendency of the enquiry, one Shri
Mangal Das Bairagi and another Shri Narendra Singh
Parihar as Secretary of the temple committee filed
their objections on 9.9.55 and 30.8.55 respectively.
These objections were not filed within limitation.
However, they were allowed.
(4) The applicant has applied for registration
of the following temples under the Act:
1. Dantesuwari temple.
2. Shri Shihwashini.
3. Jamat Mandir.
4. Jhima temple.
6. Shri Hanumanjee.
7. Bademandir of Radhe Krishna.
8. Mathmandir.
9. Kalidevi.
10. Shitladevi.
11. Bhoramdeo.
12. Budha Mahadeo.
13. Satbahiniya.
14. Vindhyawashini.
15. Mandir Rajanawagaon.
16. Shri Sheomandir.
17. Jaleshwar Mahadeo.
17
(8) Another objector Mangal Das in Sarwarkar of
Jamat Mandir. He has stated that the claim of the
trust committee over the Jamat Mandir is totally
false. The management of Jamat temple is done by
Nihang Gadai of Sadhus of Maha Nirbani Akhada and
not by the Rajya pawar of Kawardha. The appointment
of Sarwarakar is done by the Mahants and members of
the Nirmoni Digamber and Nirbani Akhada of Sadhus
only. The property attached to Jamat mandir is
managed by the Sarwarakar (Mahant). The objector
Mangaldas has separately filed an application for
registration of this mandir as public trust vide
Revenue Case No. XXXIII/5/9 of 5455. This temple
also is therefore excluded from the claim of the
applicant. Thus the applicant's claim for six
temples only hold good and they can be registered in
favour of the applicant. The names of these temples
are given below:
(1) Bademandir (2) Shri Hanumanjee (3) Satbahiniya
(4) Vindhyawashini (5) Rajanawagaon and (6) Shri
Sheo mandir.
(17) It is, therefore, recommended that the six
temples as show below may be registered as a Public
Trust under Section 7 of the M. P. Trust Act, 1951.
1. Bademandir at Kawardha.
2. Shri Hanumanjee do--
3. Satbahaniya do
4. Vindhyawashni do
5. Rajanawagaon temple do
6. Shri Sheomandir at Dullapur
Submitted to the Additional Deputy Commissioner,
18
Durg.
20. The recommendation so made by the SubDivisional
Officer for registration of temples as trust under
Section 7 of the Act of 1951 was placed before Shri R.
P. Mishra, Additional Collector Durg, he considered the
report and by order dated 27.11.1957 (Ex.D14) held
that Jamatmandir was built by the Kawardha royal
family and the royal family had donated lands to that
temple and therefore, directed for inclusion of Jamat
mandir and property attached to that temple to be
public trust and directed to be recorded in the name of
Kawardha Raj Pariwar Mandir Nyas in exercise of
jurisdiction under Section 6 & 7 of the Act of 1951.
The order dated 27.11.1957 (Ex.D14) states as under:
Copy of order dated 27.11.1957 passed by Shri
R. P. Mishra Addl. Collector Durg in the case
No. 2XXXIII9/195375 of the Registrar,
Kawardha regarding registration of public trust
- "Kawardha Rajya Pariwar Mandir Trust".
O R D E R
Read the report of the SubDivisional Officer Kawardha in the two cases No.2 XXXIII/9 of 195455 and No. 5 XXXIII/9 of 195455 and have heard the arguments of the learned counsels appearing in the court. This order will govern the decisions in both the cases.
So far as the six temples recommended by the learned SDO Kawardha there is no complaint 19 and I order that the six temples mentioned by him in para 17 of his report dated 9856 in case no. 2 XXXIII/9 of 195455 he registered in the name of the Kawardha Rajya Pariwar Mandir Nyas as a Public Trust. The dispute is only in regard to the temple called Jamat temple at Kawardha. The Kawardha Rajya Pariwar Mandir Nyas also claim that mandir as trust property and requests that the said mandir shall also be intended in the trust property of the Nyas which Mangaldas wants that it shall be registered as a separate trust. I have very carefully weighed the evidence adduced by both sides in respect of this temple and I feel that the claim of Mangaldas to have the temple registered as a separate trust is not tenable. There is evidence to show that the temple was built by one of the Kawardha royal family and the managing comity or mahant of this temple was appointed by the royal family. The royal family had donated lands in to the temple and Rajmata Deo Kumari Devi had appointed trustees for the management of this temple also including other temples in the year 1949. I therefore include this temple also in the list of the trust property of the Kawardha Rajya Pariwar Mandir Nyas and declare to register it as a separate trust.
The properties belonging to these seven temples (6 recommended by the SDO Kawardha in para 17 of his report dated 9856 and the Jamat Mandir) will be recorded in the name of the Kawardha Rajya Pariwar Mandir Nyas.
Other recommendations of the SDO 20 regarding trustees etc. accepted.
Sd/ R. P. Mishra Addl. Collector 27.11.57
21. The trial Court and the first appellate Court both have held that the order directing registration of Jamatmandir and its property to be included in public trust by order dated 27.11.1957 passed by Shri R. P. Mishra, Additional Collector, Durg in exercise of power under Section 6 & 7 of the Act of 1951 is without jurisdiction in light of the decision rendered by Madhya Pradesh High Court in the matter of Budhoolal (supra). It is established from records that both the Courts have failed to notice the provisions contained in Section 4 of the Validation Act of 1964 which has validated the order dated 27.11.1957 passed by Shri R. P. Mishra, Additional Collector, Durg under Section 7 of the Act of 1951 which declared and registered that JamitMandir be recorded in the name of defendant No.3/public trust, passed prior to 10.07.1964. Section 4 of the Act of 1964 also provides that the validity of the order passed shall not be called into question in any court of law on the ground of defect in delegation of powers to any such officer, as such, the order dated 27.11.1957 had become final. Shri R. P. Mishra, 21 Additional Collector who passed order under Section 7 of the Act of 1951 directing registration of Jamat mandir and its property to be trust property would stand validated by Section 4 of the Validation Act of 1964, but both the Courts below have committed grave legal error in holding that the order dated 27.11.1957 (Ex.D14) to be without noticing Section 4 of the Act of 1964 and Schedule appended thereto clearly validating the order passed that order under Section 7 of the Act as Registrar, Public Trusts under the Act of 1951 directing registration of JamatMandir and its property as public trust, as such, both the Courts below have committed grave legal error in holding that the suit property is not the trust property of defendant No.3 by holding the order dated 27.11.1957 (Ex.D14) without jurisdiction and without authority of law.
22. There are two additional reasons for not upholding the judgment and decree of two Courts below. First is that the plaintiff while filing the suit though impleaded defendant No.3/trust as party defendant pursuant to the order of the trial Court dated 05.10.2000, but after amending the cause title did not question legality and validity of order dated 27.11.1957 (Ex.D14) in his suit though collaterally 22 pleaded that he is owner and titleholder of the suit properties. Since the suit property was declared to be trust property of defendant No.3 by order dated 27.11.1957 of the Registrar, Public Trusts, the plaintiff was required to seek declaration or cancellation of order dated 27.11.1957 by way of consequential relief which he omitted to do so, and as such, the suit is hit and barred by proviso to Section 34 of the Specific Relief, 1963. In this regard, the principles of law laid down by the Supreme Court in the matter of Jugraj Singh v. Yashwant Singh6 may be noticed herein profitably, which reads thus: "11. In these circumstances, we are satisfied that there was proper execution of the document and registration. It is hardly necessary in view of our decision, to say anything more about this case. We are also satisfied that the appellants were not entitled to a declaration. We have reproduced the paragraph in which the reliefs were asked in the plaint. It will be noticed that they neither asked for the cancellation of the order of the Collector nor for any injunction, two of the reliefs which they were entitled to ask in the case in addition to the declaration. Such a suit would be hit by Section 42 of the Specific Relief Act and we would be quite in a position to deny them the declaration without these specific reliefs Indeed they had only to ask for the setting aside of the order."
23. Secondly, the Registrar, Public Trusts, by its order 6 AIR 1971 SC 761 23 dated 27.11.1957 passed order directing entries to be made in accordance with findings recorded by him under Section 6 of the Act. Section 7(1) & (2) of the Act states as under: "7. Registrar to make entries in the register. (1) The Registrar shall cause entries to be made in the register in accordance with the findings recorded by him under Section 6 and shall publish on the notice board of his office the entries made in the register.
(2) The entries so made shall, subject to the provisions of this Act and subject to any change recorded under any provision of this Act or a rule made thereunder, be final and conclusive."
24. A careful perusal of the aforesaid provision would show that where after an enquiry under Section 5 of the Act, the Registrar recorded his finding and that he also caused entries to be made in accordance therewith in the prescribed register, the entries must be regarded, as enacted in Section 7(2) of the Act, to be final and conclusive. [see Temple Shri Jagannathji v. Satharu Prasad7].
25. In view of the aforesaid legal analysis, I am of the considered opinion that both the Courts below have committed grave legal error in holding that the order dated 27.11.1957 (Ex.D14) is without jurisdiction and without authority of law clearly ignoring the 7 1969 MPLJ 74 24 provisions contained in Section 4 of the Validation Act of 1964 read with Schedule appended thereto validating the order passed by Shri R. P. Mishra, Additional Collector under Section 7 of the Act of 1951 directing Jamatmandir and its property to be registered as public trust of defendant No.3 and Section 4 of the Act of 1951 also bars challenge of the said order in any court of law on the ground of defect of delegation of power to any such office. It is held accordingly.
26. Consequently, I.A.No.3 i.e. application under Order 41 Rule 27 of the CPC for taking additional documents on record and application for amendment of plaint both filed by respondent No.1/plaintiff stands rejected having no merit.
27. The substantial question of law No.1 is answered in favour of the plaintiff, whereas substantial question of No.2 is answered in favour of defendants No.1 & 3. Resultantly, the judgment and decree passed by two Courts below are setaside and thereby the plaintiff's suit would stand dismissed.
28. The second appeal is allowed to the extent indicated hereinabove leaving the parties to bear their own cost(s).
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29. A decreebe drawnup accordingly.
Sd/ (Sanjay K.Agrawal) Judge B/