Bashir Abbas Kudale And Ors. vs Mahadeo, The Main Deity In Temple ...
2002 Latest Caselaw 1193 Bom

JUDGMENT

1. This appeal takes exception to the Judgment and Order passed by the 2nd Additional District Judge, Solapur dated 13-6-1988 in Civil Appeal No. 76 of 1984. By this order the first Appellate Court has set aside the order passed by the Trial Court dismissing the suit preferred by the respondents as barred by Jurisdiction and instead remanded the matter to the Trial Court for reconsideration in view of the observations made in the impugned Judgment.

2. Briefly stated, the disputed structure is situated at Gram Panchayat No. 537 of Village Mardi, District Solapur admeasuring 1234 sq.ft. The appellants had filed application before the Assistant Charity Commissioner bearing No. 174 of 1966, some time on 13th July, 1966, praying for the registration of the public trust on the premise that the suit property belongs to Shahi Masjid. This application was decided on 27th July, 1966 in favour of the appellants as there was no contest to that application. As a consequence of that order, the trust was ordered to be registered. The respondents however, filed suit on 28th November 1966 alleging that the suit property belonged to the Hindu Community Hemadpanthi of Shri Mahadeo (plaintiff No. 1- respondent No. 1 herein) which was known in the past as Shri Shivalaya temple or Siddeshwar temple. Following reliefs are claimed in the said suit, which read thus :

"(A) It be declared that the suit property is an old Hindu Hemadpanthi temple of Shri. Mahadeo (plaintiff No. 1) i.e. a Shivalaya, which was also known in the past as Shree Siddeshwar Temple in which the Hindus including the plaintiff Nos. 2 and 3 have a right to worship plaintiff No. 1 and other deities in that temple;

(B) That the defendant Nos. 1 to 5 individually and as representatives of the Muslims of that village be permanently restrained from interfering with and disturbing the Hindus of Mardi Village in general and the plaintiff Nos. 2 and 3 in particular in their vahivat and worship of all the deities in the Hindu temple described in para 1 of the plaint;

(C) They also alternatively pray that the Muslims of that village in general and the defendants 1 to 5 in particular, be ordered to deliver possession of the said property in suit to the plaintiffs as representatives of plaintiff No. 1 deity and of the Hindus of the Village Mardi, in case, the Court comes to the conclusion that plaintiff Nos. 1 to 5 are not in possession of it, at the date of suit.

(D) The defendant Nos. 1 to 5 be ordered to pay the costs of the suit to the plaintiffs and

(E) This Court may also be pleased to pass any other just and equitable orders that it may deem fit."

3. While the aforesaid suit was pending, two persons belonging to Hindu Community challenged the abovesaid order passed by the Assistant Charity Commissioner before the Charity Commissioner, being Appeal No. 104 and 108 of 1966. Besides, a separate application was filed being Application No. 241/1966 before the Assistant Charity Commissioner on 6-9-1966 for registration of the suit property as a Mahadeo Mandir Trust. Initially this proceeding was stayed till the decision of the appeal filed before the Charity Commissioner. Later on said Application No. 241 of 1966 was rejected with an observation that it will be open to the Applicant to file a fresh application after the original Application No. 174/1966 is finally decided. The aforesaid appeals No. 104 and 108 of 1966 were partly allowed by the Charity Commissioner on October 18, 1969 and he was pleased to set aside the order passed by the Assistant Charity Commissioner and remanded the Application No. 174 of 1966 for fresh enquiry. After this order, persons belonging to Hindu Community made application for registration of the temple as a trust, being Application No. 60 of 1970. Both the Applications were to be heard together. Accordingly, Public Notice was also issued on 29-8-1979, as required under the rules. It is relevant to note that, parties to the present proceedings filed pursis Exh. 156 before the Civil Court taking a clear position that the question involved in the suit is as to whether the Public Trust as contended by the respondents or as contended by the appellants exists or not and whether the suit property belongs to the respondents-Trust or to the appellants-Trust. In view of this pursis, the Civil Court permitted the parties to agitate those questions before the Assistant Charity Commissioner who was to decide the pending application No. 174/1966 and 60/1979 filed by the respective parties. Till such decision was obtained, further hearing of the suit was stayed. It is also relevant to note that before the Assistant Charity Commissioner, both the parties filed Application Exh, 21 requesting the Assistant Charity Commissioner to call for the record and proceedings in the pending suit with the permission of the Civil Court so as to read the same as evidence in the enquiry under Section 19 of the Bombay Public Trusts Act. That request was acceded to. It is not in dispute that the entire evidence adduced before the Civil

Court in the pending suit was read as evidence in the enquiry held by the Assistant Charity Commissioner under Section 19 of the Act. After considering the relevant materials on record, the Assistant Charity Commissioner delivered a common Judgment disposing of both the pending applications dated 9th October, 1972. The Assistant Charity Commissioner ordered registration of Shahi Masjid as a Public Trust. In other words, the application preferred on behalf of the appellants was allowed and the one preferred on behalf of the respondents was rejected. Pursuant to this order, Shahi Masjid has been registered as a Public Trust. It is not in dispute that against the order passed by the Assistant Charity Commissioner dated 9-10-1972, the respondents preferred statutory appeal, being Appeal No. 174/1972 before the Joint Charity Commissioner, which was dismissed. Against this decision the respondents carried the matter before the District Court under Section 72 of the Act. Even that application being Application No. 79 of 1975 has been dismissed on 10th February, 1978. In other words, the order passed by the Assistant Charity Commissioner ordering registration of Shahi Masjid as a Public Trust became final, with the culmination of this proceeding. It is not in dispute that this order has not been challenged by the respondents. However, much thereafter, an application Exh. 160 dated 18-8-1981 came to be filed on behalf of the respondents in the Civil Court in the pending suit for reopening the trial of the civil suit as the proceeding before the Charity Commissioner had become final. In this application, it was asserted that the question of title in respect of the suit property was in issue and that question will have to be considered by the civil court. The Trial Court examined the said application and the rival contentions canvassed before it and took the view that, the questions which will be required to be considered in the suit were; whether the trust exists and whether such trust was a public trust and whether the suit property is property of such trust. The Civil Court observed that those questions were exclusively triable by the Charity Commissioner for, by virtue of Section 80 of the Act, the jurisdiction of the Civil Court to examine those questions was clearly barred. The Trial Court has adverted to other contentions and eventually by Judgment and Decree dated 16th July, 1983 held that the suit as presented by the respondents was barred by law and, therefore, without jurisdiction. The respondents carried the matter in appeal before the District Court being Civil Appeal No. 76/1984. The first Appellate Court on the other hand accepted the plea taken by the respondents that, the question of title to the property was involved and which could be decided only by the Civil Court. In this view of the matter, the first Appellate Court set aside the Judgment and Decree passed by the Trial Court and instead remanded the suit for fresh decision in accordance with law. Against this order of remand, the present appeal from order has been filed.

4. According to the appellants, going by the relief claimed in the suit, the Trial Court was right in observing that the questions which would arise for consideration were; whether a trust exists and whether such trust is a public trust and whether the suit property is the property of such trust. It is contended that, by virtue of Section 19 read with Section 18 of the Act, those questions could be tried by the Charity Commissioner and the decision returned by the Charity Commissioner on those questions was to be final. It is, therefore, contended that

by virtue of Section 80 read with Section 79 of the Act, the Civil Court was not competent to adjudicate the said questions which were exclusively triable by the Charity Commissioner. The learned counsel has also argued that the plea now raised by the respondents was also barred by the principles of res judicata. He has also drawn my attention to the other contentions raised on behalf of the appellants which had found favour of the Trial Court.

5. On the other hand, that learned counsel for the respondents has adopted the reasons given by the first Appellate Court to support the decision under challenge in this appeal. According to him, the first Appellate Court has rightly observed that the question that will have to be considered was regarding the title to the suit property and, if that be so, such a plea could be considered only by the Civil Court. To buttress this submission, the learned counsel has placed reliance on the full bench decision of this Court in the case of Keki Pestonji Jamadar and Anr. v. Rodabai Khodadad Merwan Irani and Ors.

6. Having considered rival submissions, to my mind, the point for consideration is : whether the suit as filed by the respondents before the Civil Court can be said to be barred by law and without jurisdiction? Going by the prayer clause of the suit as reproduced above, it is seen that the respondents have sought declaration that the suit property is an old Hindu Hemadpanthi temple of Shri Mahadeo i.e. a Shivalaya which was also known in the past as Siddeshwar temple in which Hindus have right to worship Shri Mahadeo and other deities in that temple. This is the substantive relief claimed in the suit as filed. Founded on that relief is the relief claimed in terms of prayer Clause (B) against the appellants for not to interfere or disturb Hindus of Mardi Village in general and the plaintiffs No. 2 and 3 in particular in their vahivat and worship of all the deities in the Hindu temple described in the suit. The prayer Clause (C) is the alternative relief to the effect that the Muslims of that village in general and the defendant Nos. 1 to 5 in particular be ordered to deliver possession of the said property in suit to the respondents as representatives of respondent No. 1 deity and of the Hindus of Village Mardi, in the event, court finds that the respondents are not in possession of the suit property on the date of institution of the suit. In substance, the reliefs claimed by the respondents, as rightly observed by the Trial Court, would require the court to examine as to whether the trust exists and whether such trust is a public trust and whether suit property is the property of such trust. To my mind, the first Appellate Court clearly misdirected itself by proceeding on the premise that the suit was for declaration of title of the suit property. However, that is not the relief claimed by the respondents in the suit as filed. On the other hand, as observed earlier, the suit is purely for declaration that the suit property is an old Hindu Hemadpanthi temple of Shri Mahadeo and that Hindus have right to worship the deities in that temple. If this is the relief claimed then, obviously, by virtue of Section 19 read with Sections 79 and 80 of the Act, the suit as filed is clearly barred by law. Before we proceed to examine the efficacy of the abovesaid provisions, it would be apposite to advert to the definition of "Public Trust" in Section 2(13) which reads thus :

"Public trust" means an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, a wakf, church, synagogue, agiary or other place of public religious worship, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose, or for both and registered under the Societies Registration Act, 1860;"

It will also be relevant to advert to the definition of "temple" in Section 2( 17) which reads thus :

"temple" means a place whatever designation known and used as a place of public religious worship and dedicated to or for the benefit of or used as of right by the Hindu community or any section thereof as a place of public religious worship;"

7. On conjoint reading of Section 2(13) and 2(17) of the Act it would appear that the place used as a place of public religious worship and dedicated to or for the benefit of or used as of right by the Hindu Community or any section thereof as a place of public religious worship is a temple and therefore, a public trust. The question as to whether the place is a temple and therefore, a public trust or for that matter whether a trust exists and whether such trust is a public trust can be adjudicated only by the Charity Commissioner in an enquiry under Section 19 of the Act, Clause (ii) of Section 19 further postulates that whether any property is the property of such trust, is a matter for enquiry under Section 19 of the Act. It is rightly contended by the appellants that by virtue of Section 79(1) of the Act, any question as to whether or not a trust exists and such trust is a Public trust or particular property is the property of said trust, shall be decided by the Deputy or the Assistant Charity Commissioner or the Charity Commissioner in appeal as provided by the Act. Sub-section (2) of Section 79 further postulates that the decision of the said authority shall, unless set aside by the decision of the court on application or of the High Court in appeal be final and conclusive. Having regard to the scheme of the abovesaid provisions, it logically follows that the questions which would arise for consideration in the present suit are exclusively triable by the Charity Commissioner and its decision has been made final and conclusive. If this is so, then by virtue of Section 80 of the Act, the jurisdiction of the Civil Court to decide or to deal with any of those questions is clearly barred by law and, therefore, the suit is without jurisdiction. As observed earlier, the first Appellate Court has clearly misdirected itself in proceeding on an assumption that the question of title of the suit property would arise for consideration. That is however, not in issue at all having regard to the nature of reliefs claimed in the suit.

8. To overcome the above position, the learned counsel for the respondents has placed reliance on the decision of this Court in Keki Pestonji's case (supra). To my mind, that decision is inapposite to the fact situation of the present case. In that case, the full bench of this Court was called upon to examine the question as to whether the author of the trust was the lawful owner of the suit property. In other words, the question was whether the author of the trust was competent to create a trust. It is in that context, the matter was examined by this

Court. However, that question does not arise in the present case, having regard to the nature of reliefs in particular in terms of prayer Clause (A) claimed by the respondents in this suit. In the circumstances, the decision of the first Appellate Court will have to be set aside and instead the one returned by the Trial Court will have to be restored.

9. Accordingly, this appeal succeeds. The impugned order is set aside and the order passed by the Trial Court dismissing the suit as barred by law and without jurisdiction is restored and affirmed. No order as to costs.