Sitalsing Asaram Naik And Ors. vs Narbadabai Wd/O Laxmanprasad ...
2001 Latest Caselaw 607 Bom

JUDGMENT

A.P. Deshpande, J.

1. The present petitioners, who are the original defendants, are the trustees of a Public Trust, by name, "Panchayati Shri Balaji Mandir", Chelipura, Aurangabad. The suit bearing Special Civil Suit No. 324/93 came to be filed by the plaintiffs, who are the legal representatives of deceased Laxmanprasad and are claiming title through him over the suit property. During the life-time of Laxmanprasad, he had claimed the title over the suit property and had opposed the claim of the trustees of the trust that the property belongs to the Public Trust. In the suit, the trustees/defendants filed an application under section 9-A of the Code of Civil Procedure for framing of preliminary issues and the learned Judge of the trial Court did frame the issues and decided the same as preliminary issues. The issues that came to be framed are as under:-

(1) Whether jurisdiction of Civil Court is barred in view of sections 79 and 80 of the Bombay Public Trusts Act, 1950?

(2) Whether the suit is not maintainable for want of permission under section 51 of the Bombay Public Trusts Act, 1950?

(3) Whether Charity Commissioner is a necessary party?

(4) Whether the findings of Assistant Charity Commissioner, Aurangabad which are confirmed upto High Court operates res judicata?

2. Both the parties did not lead any evidence touching the preliminary issues but put forth the arguments in support of their contentions. The trial Court held that jurisdiction of the Civil Court is not barred and that the suit as filed is maintainable in law.

3. Before I proceed to consider the submissions on behalf of the petitioners and the respondents, it would be appropriate to refer to the earlier litigation, as the same has a bearing on the issues involved in the present revision application.

4. The petitioners/trustees on 24-8-1973 filed an application under section 18 of the Bombay Public Trusts Act, 1950 (hereinafter, for the purposes of brevity, referred to as "the Act") before the Assistant Charity Commissioner to register the trust, by name, "Panchayati Shri Balaji Mandir" as a public trust, so also applied for registration of the suit property as trust-property. The said trust possesses no other property but the suit property. A public notice came to be issued after filing of the application by the trustees and one Laxmanprasad appeared in the proceedings and filed his objections contending that the property in question is owned by him and the proposed trust is not the owner thereof. The plaintiffs are the legal heirs of this Laxmanprasad. Initially, the enquiry was dropped by the Assistant Charity Commissioner but the trustees filed by appeal challenging the order dropping the enquiry and the Deputy Charity Commissioner allowed the appeal and remanded the matter back to the Assistant Charity Commissioner, Aurangabad for making an enquiry. After remand, the Assistant Charity Commissioner made an enquiry and passed a judgment holding that Panchayati Shri Balaji Mandir is a Public Trust and the same be registered as a Public Trust.

5. Being aggrieved by the judgment of the Assistant Charity Commissioner, Laxmanprasad filed an Appeal No. 81/1977 before the Deputy Charity Commissioner. The Deputy Charity Commissioner confirmed the order passed by the Assistant Charity Commissioner. During the pendency of this appeal before the Deputy Charity Commissioner, Laxmanprasad died. The present respondents who are the plaintiffs in the suit, came to be brought on record as legal representatives of the deceased. The legal representatives of Laxmanprasad filed Miscellaneous Application before the District Judge, Aurangabad under section 72 of the Act and challenged the order passed by the Deputy Charity Commissioner.

6. The District Judge dismissed the appeal filed by the legal representative of Laxmanprasad/present respondents and concurred with the view taken by the Assistant and Deputy Charity Commissioners. The learned District Judge though confirmed the finding of the authorities below that "Panchayati Shri Balaji Mandir" is a Public Trust and the property belongs to the Public Trust, it held that Laxmanprasad had a right to continue as Manager and the legal heirs of Laxmanprasad are entitled to continue as Managers. The respondents filed first appeal in this Court, being aggrieved by the order based on findings reached by the District Judge holding the Mandir as a Public Trust and the property being of Public Trust; whereas another first appeal was carried by the trustees questioning the correctness of the decision of the District Judge holding that heirs of Laxmanprasad are entitled to continue as Managers of the trust property. Both the first appeals came to be dismissed by this Court and after the dismissal of the appeal, the respondents herein, i.e. legal representatives of Laxmanprasad instituted a Special Civil Suit bearing No. 324/1993 and in the said civil suit the plaintiffs/respondents prayed for declaration that the plaintiffs are the owners and are in possession of the suit property which includes Balaji Mandir. They sought further declaration that the suit property and Balaji Mandir in question was never a public property or a public temple and could not have been registered as a Public Trust by the office of the defendant No. 5. Plaintiffs further sought a declaration that the decisions rendered by the authorities under the Act are illegal, void and not binding on the plaintiffs. The plaintiffs also sought perpetual injunction against the defendants not to disturb and interfere with the ownership, possession and enjoyment of the suit property. A declaration was further sought that the defendants are not the trustees of the property in question and that the suit property is a private property and the private temple of the plaintiffs. A bare look at the prayer clauses would revealed that the plaintiffs have asserted title over the suit property in themselves to the exclusion of the trustees or for that matter the trust. The petitioners herein who are the defendants before the trial Court, filed an application objecting to the very maintainability of the suit. The trial Court rejected the said application and held that the suit was maintainable. Being aggrieved, revision application was filed before this Court. This Court set aside the order passed by the trial Court and remanded the matter to the trial Court for fresh decision after framing preliminary issues and defendants were directed to file their written statement. After the remand of the matter, the petitioners filed written statement and the trial Court framed issues and tried the same as preliminary issues which are referred to hereinabove.

7. Shri S.V. Gangapurwala, the learned Counsel for the petitioners has contended that the learned Judge of the trial Court has erred in law in holding that the Civil Court has jurisdiction to try the suit. He contended that the jurisdiction of the Civil Court is completely ousted by operation of provisions of sections 79 and 80 of the Bombay Public Trusts Act, 1950. Sections 79 and 80 read thus:

"79(1): 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."

"79(2): "The decision of the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal, as the case may be, shall unless set aside by the decision of the Court (on application) or of the High Court in * * * appeal be final and conclusive".

"Section 80 : 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 conclusion."

8. It is the submission of the learned Counsel for the petitioners that section 19 empowers the authorities under the Act to adjudicate and decide the issue as to whether any property is property of such trust and in his submission the said decision has been given finality by the mandate of section 79(2) of the B.P.T. Act. He further contends that once a decision is reached in exercise of powers under section 19 of the Act that the property is a property of a trust, the Civil Court is precluded from adjudicating the same issue as it would be barred by principles of "res judicata"; and more so as there is a clear bar contained in section 80 of the Act. In the submission of the learned Counsel, as a decision under section 19 has been given finality by sub-section (2) of section 79, the decision of the authorities under the Act has to be final and the Civil Court as such would not have any jurisdiction to deal with the question de novo.

9. In reply to the said contentions raised by the learned Counsel for the petitioner, Shri A.B. Bajpai, the learned Counsel appearing on behalf of the respondents 1 and 2, submitted that no finality could be attached to the proceedings in exercise of powers under section 19 of the Act, for the reasons (1) that the enquiry contemplated therein is a summary enquiry; (2) the evidence that is required to be recorded is also not recorded in verbatim; gist thereof as is contemplated under the provisions of the Bombay Provincial Small Causes Act is required to be recorded. It is within the discretion of the authorities under the Act either to permit or not to permit appearance of a lawyer to represent a party before it; (3) The authorities under the said Act are not well-equipped to adjudicate complicated questions relating to title over the property, having regard to their experience and qualifications. The learned Counsel submitted that the issues involved are answered by a full Bench judgment of this Court, Keki Pestonji Jamadas v. Rodabai Khodadad Merwan Irani, reported in 1972 Bom.L.R. 198. In his submission Full Bench of this Court has already pronounced on the said issue, holding that the authorities under the Bombay Public Trusts Act in exercise of the powers under section 19 though entitled to make an enquiry in regard to the trust and its properties, their decision on the question of title is not final and the same can be assailed by filing a Civil Suit before the Civil Court.

10. Before I proceed to deal with the submissions made by the learned Counsel for the parties, it would be necessary to refer to the judgment of the Full Bench of this Court, obviously with a view to find out which are the questions already answered by the Full Bench and what is the area open for the Single Judge to consider the issues. A Full Bench of this Court consisting of honourable Mr. S.P. Kotwal, C.J., Mr. Justice Chandrachud and Mr. Justice Deshmukh, in the matter of Keki Pestonji Jamadas v. Rodabai Khodadad Merwan Irani, reported in 1972 Bom.L.R. 198, had an occasion to consider the scheme of the Act in relation to an enquiry under section 19 of the Act. Certain issues were framed and referred to the Full Bench and the Full Bench reconstituted the issues which reads thus:-

"(1) Is the question whether the author of the trust was the lawful owner of the property of which he has created the trust or had otherwise authority to create the particular trust, covered by section 79 read with section 80 of the Bombay Public Trusts Act, 1950?

(2) Can a person who has once appeared in the proceedings under the Bombay Public Trusts Act and has made his contentions therein on the above question, bring a suit in a Civil Court in respect of such a question? Or

(3) Has the Civil Court no jurisdiction to deal with or decide such a question by reason of section 80 of the Act?"

11. While considering these questions, the Full Bench had a retrospect of the aims and objects of the Act, the procedure followed by the authorities under the Act, the intention of the legislature in regard to the matter of giving finality to the orders passed under the Act and the various amendments made to the Act in regards to notice of the proceedings under section 19 and thereafter reached the following findings:-

"Having considered the matter in all the aspects presented before us, we are of the opinion that the respondents are right in their contention. The purpose of the Act, the procedure prescribed for inquiries under section 19, the absence of any remedy under the Act to those who were not parties to the inquiry under section 19 but whose anterior or superior title would be concluded by the decision in that inquiry and the general scheme of the Act, all tend to show that the questions of title to the trust property are outside the scope of the inquiry under section 19."

The Full Bench further found that, "It is not part of their function under section 19 to decide claims which are adverse to the trust and which are made in assertion of titles which are hostile to the trust. Such titles cannot be held concluded in violation of the principles of natural justice".

12. With a view to lay emphasis on the said finding by the Full Bench, I would like to reiterate that the Full Bench has categorically found that it is not the function of the authority under section 19 to decide the claims which are adverse to the trust and which are made in assertion of titles which are hostile to the trust. The Full Bench thereafter, while examining the Scheme of the Act pointed out that "neither the Act nor the Rules contemplate that persons who claims adversely to the trust or who dispute the right or title of the author of the trust to the trust property must be heard in the inquiry under section 19". After considering the various judgments for finding out as to whether the contest regarding title of third party could be said to have any place under the Scheme of the Act, the Full Bench observed, thus:

"The inadequate procedure prescribed for inquiries under section 19, the absence of any provision for the issuance of a notice to those whose interests are likely to be affected by a decision rendered in that inquiry and the dominant purpose of the Act that public trusts should be compulsorily registrable so that they can be more effectively regulated and administered show that contests regarding titles of third parties have no place in the Scheme of the Act."

"The question as regards the title of a third party to the trust property is not by any means a question incidental to the determination of the main question whether the particular property is the property of the Public Trust."

The Full Bench has held that Bombay Public Trusts Act is not self-contained Code and it provides no remedy to third parties whose titles would be concluded by the decisions under section 19. The Full Bench proceeded to record the following findings, "that may serve to explain the intendment of section 26 under which any Court of competent jurisdiction deciding any question relating to any Public Trust, which by or under the provisions of the Act it is not expressly or impliedly barred from deciding, has to send a copy of such decision to the Charity Commissioner and the Charity Commissioner has to cause the entries in the register to be made or amended in accordance with such decision".

13. So needless to stated that two questions which are addressed before me are already answered by the Full Bench in favour of the plaintiffs/legal representatives of Laxmanprasad. I have already reproduced the questions formulated by the Full Bench hereinabove; and it is here that I am reproducing answers to the said questions recorded by the Full Bench:

"As regards question Nos. 2 and 3, we are of the opinion that for determining whether the bar under section 80 of the Act arises, it is irrelevant whether the person who wants to raise the particular question was or was not a party to the proceedings under section 19. The fact that such a person was a party to those proceedings may perhaps raise a bar analogous to that of res judicata but we are not concerned with that question and would prefer not to express any opinion thereon. The Civil Court would, however, have the jurisdiction to decide the points mentioned in question No. 1, in the sense that section 80 cannot operate as a bar to that jurisdiction."

14. A perusal of the judgment of the Full Bench reveals that two of the submissions made before me are already answered by the Full Bench and the question that is left open is as to whether the fact that such a person was party to those proceedings, would raise a bar analogous to that of res judicata. It is only this small area which is left open for consideration.

15. The Full Bench has already concluded that the issue of title of an adversary to the trust cannot be gone into by the authority under section 19 of the Act and the same has to be decided before the general forum viz. the Civil Court. The learned Counsel for the petitioner invited my attention to section 11, Explanation VIII of C.P.C. to buttress this point that by operation of the principle akin to res judicata, the plaintiffs would be precluded from filing the Civil Suit. It is the submission of the learned Counsel that an issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. The learned Counsel is perfectly right in saying that if the Court of limited jurisdiction was competent to decide an issue, then a decision on that issue would always act as res judicata and preclude the party to the said proceedings from instituting a suit before the Civil Court. What is to be seen in the present case is as to whether the authority under section 19 of the Act was competent to decide the issue. The Full Bench has already held in the above-referred judgment that an authority under section 19 is not competent to decide the question of title raised by an adversary to the interest of the Public Trust. Hence it is not possible to hold that the bar of res judicata or the principle of res judicata would come in the way of the plaintiffs to institute the suit. As a matter of fact, answer to the first question, answers the question of res judicata as well. I am not inclined to accept the submissions made by the learned Counsel for the petitioners that the present suit is hit by the principle of res judicata.

16. The learned Counsel for the petitioners invited my attention and relied upon the judgment of the Apex Court reported in 1970 S.C.C. (III) 591 in the matter of Shyam Behari Lal v. Lalla Jageshwar Prasad. The learned Counsel has invited my attention to para No. 5 of the said judgment and contended that his case is squarely covered by the law laid down by the Apex Court. I reproduce the observations of the Apex Court:

"The plea of res judicata on general principle can be successfully taken in respect of judgments of courts of exclusive jurisdiction. Court of exclusive jurisdiction are those which have been conferred exclusive powers to decide certain matters like revenue courts, land acquisition courts, probate Courts etc. It is obvious that these courts are not entitled to try regular suits. When the plea of res judicata is founded on general principles of law all that is necessary to establish is that the Court heard and decide the former case was a Court of competent jurisdiction."

A bare perusal of the said observations of the Supreme Court also postulates that the courts of limited jurisdiction need to have jurisdiction to adjudicate the issue before it. I have already pointed out that the courts of limited jurisdiction under the BPT Act viz., the authority under section 19 did not have jurisdiction to deal with the issue of hostile title set up by the plaintiffs and as such the said decision cannot operate as a bar for filing of the suit on the ground of principle of res judicata. In my considered view, the said judgment of the Apex Court does not advance the case of the present petitioners any further.

17. It was next urged by the learned Counsel for the petitioner though not seriously, that section 51 of the BPT Act is a bar for instituting a suit against a trust or trustees in regard to matters falling under section 50. The learned Counsel for the respondents has pointed out that the present suit does not at all fall within the four corners of this section. Suffice it to state that the plaintiffs are seeking to enforce their private/personal rights over the property in question and, as such the suit is outside the purview of sections 50 and 51 of the Act.

18. The learned Counsel for the petitioners also relied on the judgment of the Apex Court in the matter of Naranbhai v. Suleman Isubji Dadabhai. He invited my attention to para No. 3 of the said judgment, to hold that the jurisdiction of the Civil Suit is ousted as the authority under section 19 is competent to decide the question of right, title or interest, more particularly the following observations made by the Apex Court:

"As stated earlier, when the tenant has pre-existing right and he is divested of that right and by operation of the provisions of the Act, he is precluded to file a suit challenging the correctness of the registration of the trust, certainly, he is a person vitally interested to defend his right, title and interest in that property. Therefore, he is a person interested to be heard before registration of the trust."

In the said case the learned Judges of the Supreme Court were dealing with the question of granting an opportunity to a person whose rights were adversely affected in proceedings under section 19 of the Act. The Apex Court held that such a person who is likely to be affected by a decision under section 19 is entitled to right of hearing in adherence to the principles of natural justice. The above referred observations also cannot assist the petitioners in canvassing their point any further. The Apex Court was not called upon to consider the question as to whether the question of title could be gone into by the authority under section 19 and as to whether by virtue of the same, the jurisdiction of the Civil Court is ousted by sub-section (2) of section 79 and section 80 of the BPT Act.

19. As I am in agreement with the view taken by the trial Court, for the reasons stated hereinabove, the present civil revision application is rejected and is dismissed. There shall be no order as to costs. Rule discharged.