Bombay High Court

Waman S/O Ramchandra Jaltade & 4 ... vs Masjid Nooran Mohalla Jingarwadi ... on 3 March, 2017

Bench: Ravi K. Deshpande

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   IN THE HIGH COURT OF JUDICATURE AT BOMBAY
             NAGPUR BENCH, NAGPUR

                SECOND APPEAL NO.73 OF 2002


  1. Waman s/o Ramchandra Jaltade,
     Aged about 66 years,
     Occupation - Pensioner,
     R/o Keshavraj Vetal, Akot,
     Tq. Akot, Distt. Akola.

  2. Vasant s/o Ramchandra Jaltade,
     since deceased, through his LR.:

  2A.Prashant s/o Vasant Jaltade,
     Aged about 48 years,
     Occupation - Petty Business,
     R/o Plot No.15,
     Kailash Nagar, behind
     Gorakshan Road, Akola,
     Tq. & Dist. Akola

  3. Ravindra s/o Ramchandra Jaltare,
     Aged about 63 years,
     Occupation - Pensioner.

  4. Vishnu s/o Ramchandra Jaltare,
     Aged about 52 years,
     Occupation - Service.

  5. Murlidhar s/o Ramchandra Jaltare,
     Aged about 49 years,
     Occupation - Service.

       Nos.3 to 5, C/o Shri Vasant s/o
       Ramchandra Jaltade, r/o Kailash
       Nagar, behind Gorakshan Road,




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       Akola, Tq. and Distt. Akola.              ... Appellants/
                                                 LRs. of Ori. Deft.
                                                 on R.A.
       Versus

  1. Masjid Nooran Mohalla Jingarwadi,
     Akot, Tq. Akot, Distt. Akola,
     a registered Public Trust, bearing
     No.B-130 of Akola, 
     through its trustee.

  2. Haji Abdul Rafique s/o Sk. Ahmed,
     Aged about 58 years,
     Occupation - Cultivator.

  3. Abdul Sattar s/o Sk. Baba,
     Aged about 50 years,
     Occupation - Service.

  4. Khawaja Zahiroddin s/o Shujaoddin,
     Aged about 63 years,
     Occupation - Cultivator.

  5. Kazi Syed Faiyazoddin s/o Syed
     Badioddin,
     Aged about 63,
     Occupation - Legal Practitioner,
     R/o Akot, Tq. Akot, Distt. Akola.

       Nos.1 to 4, C/o Kazi Syed Faiyazoddin
       S/o Syed Badioddin, Advocate,
       R/o Akot, Tq. Akot, Distt. Akola.         ... Respondents/
                                                 Substituted   as     
                                                 trustees of Masjid
                                                 Nooran, in place of
                                                 deceased Smt.
                                                 Awliyabi-Ori.Plff.
                                                 on R.A.




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  Shri C.A. Joshi, Advocate for Appellants.


               Coram : R.K. Deshpande, J.

Dated : 4th March, 2017

Oral Judgment :

1. Civil Suit No.279-A/51 filed by one Awaliyabi w/o

Rafiuddin for and on behalf of the Trust, i.e. Masjid Nuran,

Mohalla Jingarwadi, Akot, for possession of the suit property on

the basis of the title, was partly decreed on 17-11-1952 and the

operative portion of the order is reproduced below :

" i) The deft. shall put the plff. in possession of the site 78" north - south and 58" east - west from the points A and F in the map. The rest of the claim is dismissed.

ii) Parties shall bear their costs as incurred."

Civil Appeal No.79-A/53 was filed on 24-1-1953, which was

re-registered as Regular Civil Appeal No.85/1971. The plaintiff

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Awaliyabi challenged the decision of the Trial Court to the extent

it refused to grant a decree for possession of the entire suit

property, which is plot No.176. The defendants preferred

a cross-objection. The lower Appellate Court decided the said

appeal on 6-8-2001, and the operative portion of the order is

reproduced below :

"1. The appeal is partly allowed with costs. The decree dt. 17.11.1952 passed by the Learned Addl. Judge to 1st Civil Judge, Class-II, Akola in Civil suit no.279-A/1951 (old Civil suit no.58-A/1950) is set aside and the suit is decreed partly with costs, with a direction to the defts. to deliver possession of suit plot no.178 house no.86 on Nazul sheet no.28-B in ward no.4, Moholla Jhingarwadi demarcated by letters A B C D E F with the structures thereon as shown in the plaint map, within a period of three months.

2. The cross-objection is dismissed.

3. Application (Ex.38) is also rejected.

4. The plaint map shall form part of the decree."

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The successors of the original defendant are before this Court in

this second appeal.

2. The original defendant-Ramchandra Narayan Jaltare

defended the suit by raising a plea that he purchased the entire

suit property in action conducted on 17-4-1942 for recovery of

taxes outstanding in respect of the suit property. The auction

sale was confirmed on 8-6-1942 and the defendant was placed in

possession of the entire suit property on 31-7-1942. Revenue

Appeal No.1/79/1942-43 preferred by Awaliyabi against the

confirmation of sale was dismissed on 1-12-1942. Several other

persons of Muslim Community filed the proceedings under

Section 145 of the Criminal Procedure Code, registered as Misc.

Criminal Case No.5 of 1945, for restoration of possession. The

said Misc. Criminal Case was decided on 10-1-1946. The

possession of the suit was directed to be delivered to the said

persons.

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3. It was the further stand of the defendant that he filed

Civil Suit No.267A/1947 for recovery of possession of the suit

property and that was decreed on 1-5-1948, pursuant to which

he was put in possession of the entire suit property on 31-8-1949.

He, therefore, claimed that the plaintiff was not entitled to a

decree for possession of the suit property. It was a plea raised by

the defendant that there was a bar under Section 32 of the

Madhya Pradesh Public Trusts Act, 1951, which was then in

force, to institute a suit for recovery of the property belonging to

the Trust.

4. It was the stand taken that the plaintiff Awaliyabi

claimed that the property was that of the Trust, and hence the

contention of the defendant was that in the absence of the Trust

being registered, the suit was not maintainable for recovery of

possession. The lower Appellate Court, by an order

dated 28-4-1954, directed the plaintiff Awaliyabi to get the Trust

registered. She accordingly moved such application, and on

28-8-1956, an order was passed refusing to register the Trust.

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The order was not further challenged in any proceeding.

5. Awaliyabi died during the pendency of the appeal on

4-5-1958, and hence the application was filed by one Abdul

Majid in appeal for setting aside abatement and bringing his

name on record as a Trustee of the Trust. The said application

was registered as Misc. Judicial Case No.27 of 1965. The

respondents also produced the certificate of registration of the

Trust, probably dated 14-1-1963, for claiming the right to

prosecute the appeal. The lower Appellate Court framed and

answered the following points, which fell for its consideration :

"18. The following points hence arise for determination herein :

(i) Whether the interest of Awaliyabi as manager, Mutawalli or Wahivatdar of the mosque had devolved on Abdul Majid as alleged?

(ii) Whether the order passed by the Assistant Charity Commissioner appointing applicant Abdul Majid as

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managing trustee of the mosque and declaring it to be a public trust was valid and binding on the defendant?

(iii) Whether leave should be granted to Abdul Majid to continue the appeal of Awaliyabi under order 22 rule 10 C.P.C.

(iv) What order?

19. My answers to the above points are as follows :

Point No.(i) : Yes. Point No.(ii) : No. Point No.(iii) : Yes. Point No.(iv) : As per order."

The lower Appellate Court recorded the finding that the order

passed by the Assistant Charity Commissioner declaring the

Mosque as a Public Trust was not valid and binding upon the

defendant. The Court, however, permitted the appeal to proceed.

6. By the impugned judgment and order, the lower

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Appellate Court has passed a decree for possession of the entire

suit property, described and demarcated in the map annexed

with the plaint by letters A B C D E F, which is under challenge in

this second appeal.

7. The appellants filed a pursis framing five substantial

questions of law, which is reproduced below :

"1) That this matter was listed before the Hon'ble Court on 16.09.2005 and that time the Hon'ble Court has granted leave to appellants to properly formulate substantial questions of law and file the same in the court. The appellants are submitting the following substantial questions of law :-

2) Whether civil suit no.279-A of 1951 (old civil suit no.58-A/50) filed by deceased Awaliabi was not within limitation?

3) Whether the findings recorded by both the courts below that house no.86 on Nazul plot no.176, sheet no.28-B was not assessed to taxes and entire plot no.176 was not sold in an action, are against the evidence on

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record and perverse?

4) Whether civil suit no.279-A of 1951 and appeal arising therefrom were not tenable as registrar under the Madhya Pradesh Public Trust Act refused registration of respondent no.1 under that act, vide an order dt.20.08.1956, in revenue case class no.72-D case no.956/1953-54 of Akot?

5) Whether suit filed by Awaliabi was also not tenable in view of the order dt. 30.10.1980, in M.J.C. no.27/1965 holding registration of respondent no.1 trust under the Bombay Public Trusts Act as void and not binding upon the appellants?

6) Above substantial questions of law be allowed to be raised by the appellants, at the time of hearing of this appeal."

This Court admitted the appeal on 22-9-2005 on the substantial

questions of law at serial No.2, 4 and 5.

8. Shri Joshi, the learned counsel appearing for the

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appellants, submits that the decree passed by the lower Appellate

Court is in ignorance of the order dated 30-10-1980 passed in

Misc. Judicial Case No.27 of 1965, whereby it was held that the

registration of the Trust was not valid and proper. He, therefore,

submits that if this finding is to be treated as final, then the suit

itself was not maintainable for recovery of possession because the

Trust was not registered in relation to the suit property. The

consideration of this order would have a bearing on the decision

of the substantial questions of law at serial Nos.4 and 5 framed

by this Court. The lower Appellate Court has not applied its

mind while deciding the appeal. Similarly, the other questions

raised can also be decided by the lower Appellate Court.

9. In view of the fact that the lower Appellate Court has

failed to take into consideration the relevant provisions of the

Madhya Pradesh Public Trusts Act, 1951 and the order

dated 30-10-1980 passed in Misc. Judicial Case No.27 of 1965,

the impugned judgment and order passed by the lower Appellate

Court cannot be sustained and it will have to be quashed and set

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aside with an order of remand. Hence, the following order is

passed :

: O R D E R :

1. The second appeal is allowed. The impugned judgment and order dated 6-8-2001 passed by the lower Appellate Court in Regular Civil Appeal No.85/1971 (old Civil Appeal No.79-A/53), is hereby quashed and set aside.

2. The matter is remanded back to the lower Appellate Court to decide the same in accordance with law on all the points involved in the appeal, keeping in view the observations made by this Court.