Madhya Pradesh High Court
Shri Vaishnav Sahayak Trust Thru. ... vs Kailash Chandra on 6 April, 2018
Equivalent citations: AIR 2018 MADHYA PRADESH 160
1
HIGH COURT OF MADHYA PRADESH : BENCH AT INDORE
(SINGLE BENCH : HON. Mr. JUSTICE VIVEK RUSIA)
F.A. 57 OF 2017
Shri Vaishnav Sahayak Trust. .. Appellant.
Vs.
Kailash Chandra & others. ... Respondents.
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Shri Vijay Assudani, Advocate for the appellants.
Shri Piyush Mathur, Sr. Advocate with Shri Praveen Sharma, Advocate
for the respondents No.1, 2 and 4.
Shri Amit Singh Sisodia, Panel Advocate for respondent No.3.
Shri Vibhor Khandelwal, Advocate for respondent No. 5 and 7.
Shri Praveen Pal, Advocate for respondent No.6.
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JUDGMENT
(Reserved on 22.03.2018) (Delivered on 6th April, 2018) The appellants/plaintiffs have filed the present first appeal u/s. 96 of the C.P.C. against the judgment dated 1.2.2017 passed by 14th Additional District Judge, Indore, by which the suit filed by the plaintiffs has been dismissed under Order 7 Rule 11 of the C.P.C.
2. The facts of the case, in short, are that the plaintiff trust known as "Shri Vaishna Sahayak Trust" is a registered trust under the provisions of M.P. Public Trust Act, 1951 (hereinafter, for short, "the Act") having Registration No.Q/Reader-1/47, 63-64 dated 5.9.1964, address - 74, M.T. Cloth Market, Indore. The said trust was constituted by the Committee of Maharaja Tukojirao Holker New Cloth Market, Indore. The plaintiff trust was allotted 2 the land admeasuring 0.69 Hect. comprised in Survey No.293 and 409/4; and 1.29 Hect. of Survey No.417, village Sirpur, Tehsil & District Indore. According to the plaintiffs, the defendants No.1, 2 and 4 with the collusion of revenue authorities have got mutated the land of Survey No.295 in their name. A survey was done on 11.6.2009 by the Tehsildar, in which, the land of Survey No.295 was shown within the boundaries of plaintiff trust.When respondents No.1 and 2 started claiming their ownership over the land, a cause of action accrued in favour of the plaintiff to file the present suit . Accordingly the plaintiff filed the Civil Suit No.42- A/2009 along with an application for temporary injunction. Vide order dated 7.8.2009, order of status quo was granted in favour of the plaintiff. The defendants filed the written statement and on the basis of pleadings of the parties, learned trial Court vide order dated 10.3.2014, has framed the following issues :-
"1- D;k oknh VªLV xzke fljiqj rglhy gkrksn ftyk bankSj fLFkr oknxzLr Hkwfe losZ uacj 293]295]296 da LoRo/kkjh gS \ 2- D;k izfroknhx.k oknxzLr Hkwfe esa oknhx.k ds vkf/kiR; esa gLr{ksi dj jgs gS \ 3- D;k oknxzLr Hkwfe losZ uacj 295 izfroknh Øekad & 1]2]3] ds LokfeRo o vkf/kiR; dh gS \ 4- D;k oknh us vlR; vk/kkjksa ij okn izLrqr fd;k gS \ 5- lgk;rk ,oa O;; \"
3. In respect of the pleadings, the plaintiff have filed the affidavit under Order 18 Rule 4 of the C.P.C of Purushottam Parsai, the President of the Trust. The plaintiff have already got exhibited as many as 14 documents as Ex. P/1 to P/14.
4. Three persons viz. Radheshyam, Amit and Harish filed an application under Order 1 Rule 10 of the C.P.C. seeking their 3 impleadment as defendants in the suit by virtue of transfer of land bearing Survey No.295 in their favour by defendants No.1 and 2. Vide order dated 26.9.2016, the application was allowed and they were directed to be impleaded as defendants No. 5, 6 and 7 with the direction to file the written statement.
5. On 27.10.2016, defendant No.3, State through Collector filed the application under Order 7 Rule 11 of the C.P.C. seeking rejection of the plaint on the ground that the plaintiff Trust is not a registered public trust, therefore, the Civil Court is not having any jurisdiction to entertain the suit by vertue of the bar created in Section 32 of the Act. The said application was replied and opposed by the plaintiff on the ground that the objection taken by the defendant No.3 is beyond the purview of Order 7 Rule 11 of the C.P.C., therefore, the suit cannot be dismissed. Said application came up for consideration before the Court .That vide order dated 1.2.2017, the learned trial Court has allowed the aforesaid application, and dismissed the suit hence, the present appeal before this Court.
6. The Appellant / plaintiff has assailed the order dated 1.2.2017 on the ground that as per language of Section 32 of the Act,, the suit cannot proceed unless the trust is registered but the suit is not liable to be dismissed. If there is any discrepancy in the name of the trust in the registration certificate, that can be rectified by the competent authority during pendency of the suit and thereafter, the suit can proceed, but the suit is not liable to be dismissed on this ground.
47. Shri Assudani, learned counsel for the appellant, submitted that in the registration certificate, the name of the trust has been written as "Shri Vaishnav Sahayak Trust Committee", whereas the correct name is "Shri Vaishnav Sahayak Trust". The plaintiff trust moved an application before the Registrar of Public Trust, in which, the Registrar vide order dated 31.3.2017 has observed that there is a mistake in recording the name of the trust, but the same cannot be corrected by him because the Civil Court is competent to give such a declaration. After the aforesaid order, the plaintiff has filed another suit seeking declaration that the correct name of the trust is "Shri Vaishna Sahayak Trust". In support of his contention, he has drawn attention of this Court to the trust-deed, registration certificate and the minutes of the proceedings of the trust, therefore, the impugned order be set aside and the matter be remitted back to the trial Court to decide the suit on merit.
8. Shri Piyush Mathur, learned senior counsel appearing for respondents No.1, 2 and 4, submitted that Section 32 of the Act, puts a bar on the Civil Court to decide the suit unless the trust is registered under the Act. Since the plaintiff has filed an application before the Registrar, Public Trust for correction of name of the trust, therefore, as on today, there is no trust in the name of "Shri Vaishnav Sahayak Trust", hence the suit is not maintainable and the learned trial Court has rightly dismissed the suit. The appeal is also liable to be dismissed.
9. Shri Khandelwal and Shri Pal, learned counsel appearing for other respondents have also argued in support of the arguments of Shri Mathur and prayed for dismissal of the appeal.
5Learned Govt. Advocate appearing for the respondent, State has also submitted that there is no cause of action in favour of the plaintiff i.e. Shri Vaishnav Sahayak Trust, therefore, the trial Court has rightly invoked the provisions of Order 7 Rule 11 of the C.P.C. and dismissed the suit, hence no interference is called for and the appeal is liable to be dismissed.
10. I have heard the learned counsel appearing for the parties and perused the record.
11. Shri Vaishnav Sahayak Trust has filed the suit through its President, Shri Purushottam Pasari claiming to be a trust duly registered under the provisions of the Act. In the suit, the plaintiff has sought the relief of declaration and permanent injunction in respect of certain land bearing Survey Nos. 293, 295 and 296 situated at Village Sirpur, District Indore. The plaintiff has sought the decree that the plaintiff trust be declared as absolute owner of the said land and the defendants be restrained not to interfere in their peaceful possession and enjoyment of the suit property. The defendants filed the written statements and contested the suit claiming themselves to be the owner of the suit property by denying the title of the plaintiff trust.
12. Under the MP Public Trust Act, any person or trust can approach the Civil Court u/s. 8 or 26 or 27 of the Act. The present suit was not filed under the aforesaid three provisions. The suit was filed claiming title and for permanent injunction. Therefore, such a suit is maintainable u/s. 9 of the Act unless there is a specific bar in the statute barring jurisdiction of the Civil Court. There is no 6 specific bar in the Act that the suit for declaration and permanent injunction cannot be filed. U/s. 32 of the Act, there is a provision that the suit shall not proceed without registration of the trust. The M.P. Act came into force in the year 1951, in which, the registration of the trust has been made mandatory. In India, trusts were in existence much prior to the coming in force of the Act. Therefore, by virtue of Section 32 of the act, it has been made mandatory that any suit shall proceed unless the trust is registered.
13. This Court in the case of Jawaharlal V/s. Ramkrishna : 1962 JLJ 969 has held that Section 32 of the Act being merely a procedure has a retrospective effect to the extent of being applicability to the pending proceedings. The bar provided by the statute is against the hearing and deciding the suit and not against the institution of the suit. Para 17 of the aforesaid judgment is reproduced below :-
"17. The learned counsel for the appellant urged that section 32 of the Act cannot be construed to have retrospective effect so as to apply to pending cases. In this connections attention was invited to a Division Bench case of this Court in Mohd. Ishag v. Registrar of Public Trust (3) decided by Shrivastava and Pandey JJ. Wherein it was held that the provisions of section 14 of the M.P. Public Trust Act, 1951 have no retrospective operation so as to affect a sale of trust property made before the Act came into force. Section 14 of the Act prescribes that subject to any direction in the instrument of trust or any direction given under this or any other law by any Court, no sale, mortgage, exchange or gift of any immovable property and no lease for a period exceeding 7 years in the case of agricultural land, or any period exceeding three years in the case of non- agricultural land or building belonging to a 7 Public Trust is to be valid without previous sanction of the Registrar. The question in that case was whether the trustees were required to obtain the sanction of the Registrar in respect of a sale effected before the Act came into force. There can be no doubt that the provisions of the Act cannot be construed to have a retrospective operation, so as to affect vested rights already accrued prior to the Act. Therefore, a sale effected prior to the Act could not be held to be invalid for want of sanction of the Registrar. To that extent I am certainly in agreement with the view of the learned Judges of the Division Bench that section
14 of the Act has no retrospective operation. At this stage it is not necessary for me to examine the other provisions of the Act. But, so far as section 32 of the Act is concerned, it does not affect any vested right accrued prior to the date when the Act came into force. The bar is not against institution of a suit, or the filing of an appeal. The bar is only against the hearing of the suit or appeal and deciding the same. From this point of view, there can be no doubt that section 32 of the Act is applicable to pending appeals. Therefore, I am of opinion that the decision of the appeal on merits will have to be stayed to enable the appellant to get the Trust registered as a Public Trust."
Similar view has been followed by this Court in Idol Shri Shriji V/s. Chaturbhai : 1964 JLJ 448.
14. In the case of Bhurelal V/s. Kailashchand : 1982 JLJ 346, this Court has held to the extent that u/s. 32 there is a prohibition to decide the suit, but there is no prohibition to grant the interim relief. The Court has compared the language of Section 32 of the Act with Section 10 of the C.P.C., according to which, the prohibition is against proceeding with the trial, but does not appear 8 to prohibit the Court in passing the interlocutory order. The same principle can be applied further in order to held that Section 10 prohibits the Court to proceed with the suit, but nowhere prohibits filing or acceptance of the plaint.
15. The Division Bench of this Court in the case of this Court in the case of Narmadadass V/s. Manga & others : JLJ SN 51, has held that the suit should not be disposed of till conclusion of registration proceedings. It was held as under :-
"Learned counsel appearing for the parties do not dispute that when the suit was disposed of, proceedings before the Registrar of Public Trusts had not concluded. It is also not disputed that under section 32 of the Public Trusts Act, the suit could not be heard and decided if the proceedings for registration were pending before the Registrar of Public Trusts. Consequently the judgment passed by the learned Court below could not be justified. The appeal is allowed. The learned Court below is directed that it shall proceed with the suit only after the proceedings before the Registrar of Public Trusts are concluded and shall proceed thereafter to hear and dispose of the case. Appeal allowed."
16. That any trust in order to protect its properties being alienated, transferred or demolition, can approach the Civil Court for obtaining the temporary injunction because u/s. 26 of the Act, the Registrar, Public Trust is not having any jurisdiction to grant the interim protection. That under section 26 of the Act, the Registrar of Public Trust can only direct the working trustees to approach the Civil Court to obtain the relief, that too after notice to the non-applicants. Therefore, in order to get the interim protection in urgency, the civil suit seeking permanent injunction as well 9 temporary injunction is a suit is certainly maintainable. If there is any dispute about the registration of the trust, the Civil Court can direct the trust to get it registered or the preliminary issue can be framed on this controversy as to whether the trust is a registered trust or not, but the entire suit cannot be thrown out for want of registration.
17. Likewise, in the present case, according to the plaintiff, the trust is "Shri Vaishnav Sahayak Trust" which is a registered public trust, but as per the defendants, it is registered as "Shri Vaishnav Sahayak Trust Committee". The said controversy can be resolved by way of evidence after framing the issues. The said issue can be decided as a preliminary issue by virtue of Section 32 of the Act as it bars only proceeding and deciding the suit finally , but it does not bar to decide the preliminary issue or grant of relief of temporary injunction.
18. In the light of foregoing discussion, this appeal is allowed and the impugned order is hereby set-aside and the matter is remitted back to the trial Court to proceed in accordance with law as held above.
No order as to costs.
( VIVEK RUSIA ) JUDGE Alok/-
Digitally signed by Alok GargavDate: 2018.04.07 12:11:52 +05'30'