JUDGMENT S.A. Bobde, J.
1. This Civil Revision Application is directed against the order dated 22-6-1998 rejecting the applicants' application under Section 9-A of the Code of Civil Procedure. The applicants had objected to the tenability of the suit filed against them by the Trustee of the respondent-Trust on two grounds, firstly, that it is not tenable in the absence of permission of the Charity Commissioner under Section 50 of the Bombay Public Trusts Act, and secondly on the ground that Section 80 of the Bombay Public Trusts Act bars the jurisdiction of a Civil Court.
2. The non-applicant/respondent is the President of Public Trust known as Marwadi Samshan Hanuman Mandir, Akot. As is the usual erroneous practice in such matters, the respondent has filed the suit in the name of the Trust i.e. Marwadi Samshan Hanuman Mandir, Akot through himself i.e. the Trustee, as if a Trust is an independent legal entity. The practice ignores the position in law that a Trust is an obligation annexed to a properties.
3. On a reading of the plaint it is clear that the non-applicant claims to be owner of 2 Hectares and 47 R and has sought a declaration against the applicants. The declaration is to the effect that the applicants have no right or title to transfer or to execute any sale-deed of the suit land without permission of the Collector. The case made out in the plaint, is that the land is held by a registered public trust. The trust had a tenant called Rukhmanibai. The tenant failed in compulsorily purchasing the suit land and executed the sale-deed on 30-4-1990 in favour of the applicants. According to the respondent a tenant had no right to execute the sale-deed in favour of the applicants. The applicants therefore have no title to the suit land and therefore they are not entitled to sell the suit land to any third party. In this suit which was filed in the usual way as Regular Civil Suit before the Civil Judge Junior Division, Akot the applicants applied under Section 9-A contending that the suit is not tenable for want of permission from the Charity Commissioner under Section 50 of the Bombay Public Trusts Act and on the ground that the Civil Court has no jurisdiction by virtue of Section 80 of the Act. This application has been rejected cryptically by the learned Civil Judge Junior Division on the ground that Section 50 has no application since the respondent-Trust is suing for its right to certain property and the present suit is not concerned with the Trust. Especially, the order suffers from a non-application of mind as it observes that the suit has no concern with the respondent-Trust. There is no reason given why and it is difficult to imagine any. The learned Civil Judge Junior Division has left objection under Section 80 undecided.
4. Shri Atul Chandurkar, the learned Counsel for the applicants submitted that the Civil Court before whom the suit is filed does not have jurisdiction in view of Section 80 of the Bombay Public Trusts Act.
5. According to the learned Counsel the suit involves a question whether a particular property is the property of respondent-Trust, which is a matter which is required to be decided by the Deputy or Assistant Charity Commissioner or Charity Commissioner in appeal.
6. Mr. Thakkar the learned Counsel for the respondent on the other hand submitted that the suit is clearly one within the purview of Section 50 and Clause (d), this being a suit to obtain a decree for vesting of the suit property in a Trust and therefore, it is covered by Section 50, Clause (d).
7. Having considered the matter it seems that the submission on behalf of the applicants needs to be accepted.
8. Section 80 reads as follows :
Save as expressly provided in this Act, no Civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act, (and in respect of) which the decision or order of such officer or authority has been made final and conclusive.
Undoubtedly it ousts the jurisdiction of Civil Court in respect of the matter which is required to be decided or dealt with by any officer or authority under this Act and where such order is made final and conclusive.
9. The question is therefore whether the subject-matter of this suit is a question which must be decided by the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal, and whether such a decision has been given findings. This question is answered by Section 79 of the Act, which reads as follows :
Any question, (whether or not a trust exists and such trust is a public trust) or particular property is the property of such trust, shall be decided by the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal as provided by this Act.
10. It is clear from a plain reading of the plaint that in the suit the respondent claims ownership of the property and on that basis seeks a declaration that the applicants are not entitled to sell the suit property. It is true that the prayer in the suit is for a declaration that applicants have no right to transfer or execute a sale-deed or hand-over possession of any portion of the suit field. However, on reading the plaint as a whole, and that is how it must be read, it is clear that in substance the basic assertion that the property belongs to the respondent, and therefore the applicant cannot alienate it. Only if that question is decided in favour of the respondent that the declaration sought by them can be granted by the Court.
11. Mr. Thakkar, the learned Counsel for the respondent urged that a suit is tenable by virtue of Clause (d) which enables a suit to be filed to obtain a decree for, inter alia, the following relief:
(d) Vesting any property in a trustee.
According to the learned Counsel this is one such suit. A close scrutiny, however, renders this submission unacceptable. There is a marked difference between whether a property vests in a trustee and whether a particular property is the property of a trust. The former raises questions about the eligibility of a particular trustee and its vesting in him. It might also raise other related issues. The latter, raise the question about whether a particular property is dedicated to a trust and has an obligation annexed to it. Therefore, the present suit is one which belongs to the latter category.
12. As observed by the Supreme Court in Church of North India v. Lavajibhai Ratanjibhai and Ors. reported at 2005 (10) SCC page 760, in order to determine the exclusion of jurisdiction of the Civil Court in terms of provisions of the Act, the Court has to consider what, in substance, and not merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein. Having regard to the aforesaid observation, it is clear that in substance the respondent has claimed ownership of the suit property and thereupon a declaration that the applicants are not entitled to transfer the same property. The suit is therefore clearly involves the question whether the suit property belongs to the respondent-Public Trust or not. It is, therefore, a suit which involves the question which is liable to be determined under Section 79 of the Act and is therefore barred by Section 80 of the Act. A similar question recently falls for consideration before the Supreme Court of India in case referred to above i.e. Church of North India v. Lavajibhai Ratanjibhai and Ors. (supra). In paragraph No. 82 the Supreme Court observed as follows :
The provisions of the Act and the scheme thereof leave no manner of doubt that the Act is a complete code in itself. It provides for a complete machinery for a person interested in the trust to put forward his claim before the Charity Commissioner who is competent to go into the question, and to prefer appeal if he feels aggrieved by any decision. The bar of jurisdiction created under Section 80 of the Act clearly points out that a third party cannot maintain a suit so as to avoid the rigours of the provisions of the Act. The matter, however, would be different if the property is not a trust property in the eye of the law. The Civil Court's jurisdiction may not be barred as it gives rise to a jurisdictional question.
13. In the case in hand, there is the respondent who claims to be the owner of the property and the applicants who said to have acquired a valid title from Rukhmanibai the vendor. A reading of the plaint itself reveals that the matter involves a Trust property. In the same decision their Lordship has observed in paragraph No. 83 as follows :
With a view to determine the question as regards exclusion of jurisdiction of the Civil Court in terms of the provisions of the Act, the Court has to consider what, in substance, and not merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein. If for the purpose of grant of an appeal, the Court comes to the conclusion that the question is required to be determined or dealt with by an authority under the Act, the jurisdiction of the Civil Court must be held to have been ousted. The questions which are required to be determined are within the sole and exclusive jurisdiction of the authorities whether simple or complicated. Section 26 of the Act must be read in that context as it specifically refers to those questions wherewith a Court of competent jurisdiction can deal with and if the same is not expressly or impliedly barred.
14. The observations clearly apply to the present case. In this view of the matter the Civil Revision Application succeeds. The impugned order is hereby set aside. The non-applicant will be at liberty to approach the Authority under Section 79 of the Bombay Public Trusts Act and other provisions as may be applied.