Bombay High Court
Nana Laxman Tapkire Dead Lrs. Mangal And ... vs Vijay Arjun Bhagat And Ors on 28 November, 2023
2023:BHC-AUG:24975
(1) sa-274-2002.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.274 OF 2002
WITH
CIVIL APPLICATION NO.4448 OF 2022
AND
CIVIL APPLICATION NO.7230 OF 2023
1. Nana S/o Laxman Tapkire,
Age: 45 years, Occ.: Service,
R/o Village Burhanagar, Tq. Nagar,
Dist. Ahmednagar.
2. Ramnath S/o Rakhamaji Jadhav,
Age: 35 years, Occ.: Agri,
R/o Village Burhanagar, Tq. Nagar,
Dist. Ahmednagar. ..Appellants
(Orig. Defendant Nos.3 and 4)
Versus
1. Vijay S/o Arjun Bhagat,
Age: 40 years, Occu.: Agri,
R/o Village Burhanagar, Tq. Nagar,
Dist. Ahmednagar.
2. Raju S/o Arjun Bhagat,
Age: 36 years, Occu.: Agri,
R/o Village Burhanagar, Tq. Nagar,
Dist. Ahmednagar.
3. Kiran S/o Arjun Bhagat,
Age: 31 years, Occu.: Agri,
R/o Village Burhanagar, Tq. Nagar,
Dist. Ahmednagar.
4. Balaji @ Subhas S/o Arjun Bhagat,
Age: 28 years, Occu.: Agri,
R/o Village Burhanagar, Tq. Nagar,
Dist. Ahmednagar. (Orig. Plaintiffs)
5. Arjun S/o Kisan Bhagat
Since dead through legal heirs
other legal heirs already on record as
Respondent Nos.1 and 4.
5a. Ambika Balasaheb Salunke,
Age: 60 years, Occu.: Household,
R/o. Belapur, Tq. Shrirampur,
Dist. Ahmednagar.
(2) sa-274-2002.odt
5b. Manisha Vasant Kedari,
Age: 54 years, Occ.: Household,
R/o Shukrawar Peth, Pune. (Orig. Defendant No.2)
6. The Charity Commissioner,
Bombay, 31, Dr. Annie Beasant Road,
Worli, Mumbai-18. (Orig. Defendant No.1)
...
Mr. R. N. Dhorde, Senior Advocate a/w Mr. P. S. Dighe, Advocate
for the Appellants.
Mr. V. D. Sapkal, Senior Advocate i/by Mr. N. C. Garud, Advocate
for Respondent Nos.1 to 4, 5a and 5b.
...
CORAM : S. G. CHAPALGAONKAR, J.
RESERVED ON : 11th JULY, 2023.
PRONOUNCED ON : 28th NOVEMBER, 2023.
JUDGMENT:
-
1. The present second appeal is placed for fresh hearing
before this court after remand by Supreme Court. Initially
Regular Civil Suit No.600/1982, instituted by respondent Nos 1 to
4 seeking declaration of ownership and perpetual injunction in
relation to suit properties was dismissed by trial court, however,
in Regular Civil Appeal. No.21/2000, first appellate court
(District court) decreed the suit. In second appeal filed by original
defendants 3 and 4, decree passed by first appellate had been set
aside by this court and judgment and decree of Trial Court was
restored, eventually decision of this court was subjected to
challenge before supreme court in appeal in earlier round.
The factual matrix giving rise to the present second appeal
can be summarized as under:
2. The respondent nos.1 to 4 (hereinafter refereed as
original plaintiffs) have instituted a suit for declaration and
injunction in respect of properties as described in paragraph 1 of
the plaint. The property referred in paragraph no.1(A)
admeasures 53 feet (East-West) and 100 feet (North-South), which
(3) sa-274-2002.odt
consist of a temple of Goddess Jagdamba, Tuljapur, situated at
Gaothan, Burhanagar of mouje Kapurwadi, Tq. and Dist.
Ahmednagar. The properties described in Paragraph No.1(B)(C)
(D) of plaint are adjacent to the property described in paragraph
no.1(A). The plaintiffs have claimed that the property described
in paragraph no.1(A) is their ancestral property and unconcerned
with the Public Trust. As such they seeks permanent injunction
against defendants i.e. Joint Charity Commissioner and Trustees
appointed as per Scheme framed under Bombay Public Trust Act.
So far as the properties described in paragraph no.1(B)(C)(D) are
concerned, the plaintiffs are seeking relief of declaration that
those are their ancestral and private properties.
3. It is the contention of the plaintiffs that the suit
properties continuously owned and possessed by them since their
forefathers. In the year 1913 some part of the property was
mortgaged for raising funds to purchase idols of Tuljapurchi Devi,
Lord Ganpati and Gaynuka. The Deities were installed in a part
of the house possessed by the forefathers of the plaintiffs. The
construction over the property was made from funds generated
out of family business i.e. Oil extraction. The surrounding
properties are owned and possessed by the plaintiffs and
defendant no.2, which are specifically described in paragraph
no.1(B)(C)(D) of the plaint. In support of the aforesaid
contentions the plaintiffs rely upon the decree in Regular Civil
Suit No.246/1935 instituted by one Chandrabhan Savaleram Teli
against great grandfather of the plaintiffs. Plaintiffs claims, in
that suit, declaration was made that property belongs to the
Bhagat family. On 04.09.1942 there was partition and temple
property was given in exclusive possession of the Kisan Lahanu
Bhagat i.e. grandfather of the plaintiffs, who looked after the
properties as owner. The maintenance of the property was
(4) sa-274-2002.odt
undertaken out of his own funds. The Pooja-Archa of the Deities
installed in the house property of the plaintiffs was exclusively
done by the forefathers of the plaintiffs. The property was never
dedicated to public or to the Deity by way of Sankalp, Samarpana
or Utsav. It is only at the pleasure of the plaintiffs' family,
occasionally, the access to the public was permitted for Darshan
or Pooja. The private interest and use of the property was never
dedicated or divested to the public.
4. It is the contention of the plaintiffs that in the year
1952 on enactment of the Bombay Public Trust Act, the
grandfather of the plaintiffs under erroneous belief that every
Deity needs compulsory registration, submitted an application
with Charity Commissioner, Pune seeking registration of the
Deity as Public Trust. The application specifically describes the
property (as referred in paragraph no.1(A) of the plaint) to be
private property. The plaintiffs contend that even otherwise the
grandfather of the plaintiffs neither intended nor had exclusive
right to part that property. However, the Charity Commissioner
under mistake of facts or misrepresentation, registered suit
property as Public Trust. The plaintiffs contends that defendant
no.2 is their father, who discharged his obligation as Pujari since
his childhood, so also managed the property as full owner.
However, he has been appointed as Trustee alongwith defendant
nos.3 and 4. As such, he is acting against the interest of the
plaintiffs and joint family property therefore he is added as
defendant in this suit. The plaintiff no.1 recently attained
majority and received information that suit property [described in
paragraph no.1(A)] is being treated as Trust property and
defendant nos.2 to 4 have been appointed as Trustees. Although,
Trustees have not taken charge of the Trust or suit property, in
November-1981 Court Commissioner appointed by Charity
(5) sa-274-2002.odt
Commissioner, collected money and other articles offered in the
boxes kept before the Deities. The aforesaid activity had been
initiated in pursuance of the illegal orders passed by Charity
Commissioner registering Public Trust with suit property. Hence,
cause of action arose for filing of the suit.
5. The defendant no.1/Charity Commissioner refuted
contentions of the plaintiffs stating that Shri. Jagdamba
Taljapurachi Devi Temple is registered under Bombay Public
Trust Act vide PTR No.A-327 along with temple property
admeasures 53 feet X 100 feet, Sapta Sringi Devi Mandir
admeasures 6 feet X 6 feet and Ota (Platform) admeasures 10 feet
X 10 feet. The Scheme is framed by the order of the Joint Charity
Commissioner. The defendant no.2-Arjun Bhagat has been
brought on record as Trustee after Kisan Lahanu Bhagat.
6. The defendant no.4, who is one of the Trustee
appointed under order of the Charity Commissioner filed his
written statement contending that the temple is constructed out
of public contribution and donation on the Gaothan land. The
idols are installed out of public funds. The grandfather of the
plaintiffs Kisan Lahanu Bhagat was managing the temple. On
promulgation of the Bombay Public Trust Act, he registered Trust
alongwith property in the year 1952, as mandated under the
provisions of the Bombay Public Trust Act. Initially, the
management of the Trust was governed by hereditary succession.
The grandfather of the plaintiffs Kisan Lahanu Bhagat managed
the Trust during his lifetime he introduced defendant no.2 i.e.
father of the plaintiffs as trustee accordingly he was managing
the affairs of the Trust. The change report to that effect was
submitted and approved. The defendant no.2 submitted the
accounts of income and expenditures of trust. However, because
(6) sa-274-2002.odt
of his mismanagement in affairs of the Trust, a proceeding for
framing of the Scheme was instituted before charity commissioner
vide M.A. No.302/1980. It has been allowed on 14.07.1981 and
Scheme is framed. The defendant no.2 i.e. father of the plaintiffs
is appointed as Chairman of the Trust. The defendant nos.3 and
4 are appointed as Trustees and all of them were to appoint two
additional Trustees.
7. It is the contention of defendant no.4 that the
grandfather of the plaintiffs i.e. Kisan Lahanu Bhagat registered
Public Trust during his lifetime, including the suit property in the
Schedule of Trust. The plaintiffs were not even borne at that
time. The defendant no.2 never objected culmination of the
property, as Trust property. The plaintiffs have no cause of action
to file present suit. The suit is collusive between the plaintiffs
and defendant no.2. It is further contentions of the defendants
that the suit is barred in view of the provisions of Sections 79 and
80 of the Bombay Public Trust Act. The suit is not tenable for
want of requisite consent under Section 51 of the Bombay Public
Trust Act. The Civil Court has no jurisdiction to try and entertain
the suit. The suit is barred by limitation.
8. The Trial Court had framed as many as 13 issues
below Exhibit-27, which includes the issues as regards to the
jurisdiction of Civil Court, so also limitation. The Trial Court
concluded that since the claim of individual title to the property is
raised by plaintiffs, the civil suit is maintainable. Even, issue of
limitation is decided in favour of the plaintiffs. However, trial
court dismissed the suit holding that the plaintiffs failed to
establish claim regarding ancestral ownership over suit
properties. The plaintiffs approached the Appellate Court i.e.
District Judge, Ahmednagar in Regular Civil Appeal No.21/2000
impugning the dismissal of the suit. The Appellate Court
(7) sa-274-2002.odt
accepted claim of plaintiffs observing that the suit properties are
ancestral properties of the plaintiffs and exclusively in possession
and enjoyment since their forefathers. Consequently, first
appellate court decreed suit of the plaintiffs as claimed.
Aggrieved defendant nos.3 and 4 filed present second appeal
impugning the judgment and decree passed by the Appellate
Court.
9. This Court on 30.11.2002 admitted the second appeal on
following substantial questions of law:
"(A) Whether the first appellate court has misread the
document of partition deed (Exh.81) and therefore the finding
in this behalf suffers from perversity.
(B) Whether the first appellate court has failed to consider
the appropriate provisions of Order VII Rule 2 of the C.P.C.
(C) Whether the first appellate court has erroneously relied
upon Xerox copies of the mortgage deed which is not
registered.
(D) Whether the first appellate court has erroneously held
that the suit properties are the private properties of original
plaintiffs.
(E) Whether the Civil Court has jurisdiction to decide the
nature of the property which issue required to be dealt with by
the Charity Commissioner.
(F) Whether the suit is barred by limitation."
10. After hearing second appeal at earlier round, this
Court, had reformulated substantial questions of law while
delivering judgment as under:
"(i) Whether the Civil Court has jurisdiction to decide the
question whether a particular property is that of a Public
Trust or that it is not a property of the Public Trust and
belongs to individual claimant?
(ii) Whether the suit for declaration that the properties
were not of the Public Trust was barred by limitation and,
(8) sa-274-2002.odt
therefore, the impugned judgment of the first appellate Court
deserves interference?"
11. Accordingly recorded negative finding as regards to
the jurisdiction of the Civil Court to decide the nature of the
property and affirmative findings holding that the suit is barred
by the limitation. Accordingly, judgment of the First Appellate
Court in R.C.A. No.21/2000 was set aside. Consequently, suit was
dismissed restoring Trial Courts judgment and decree in R.C.S.
No.600/1982.
12. The aggrieved plaintiffs had preferred Civil Appeal
No.6272/2010 before the Supreme Court of India. The Supreme
Court by order dated 11.05.2018 pleased to set aside the judgment
and decree passed by this Court, finding procedural error in
framing two additional substantial questions of law in the
judgment itself and consequential prejudice caused to the rights of
the parties, particularly appellants who suffered adverse order
without knowledge about framing of two additional questions
inasmuch as they were deprived of opportunity to address the
Court on the two additional questions laying foundation for the
impugned judgment. Accordingly, the matter is remanded to this
Court to decide the appeal afresh on merits in accordance with
law.
13. The learned Advocates appearing for the respective
parties unanimously submitted that this Court has already
framed six substantial questions of law while admitting appeal
vide order dated 30.11.2002. The controversy in this appeal is
covered in the questions of law already formulated and
accordingly advanced respective submissions before this Court.
14. Mr. R. N.Dhorde, learned senior counsel appearing for
the appellants would submit that the suit properties are owned by
(9) sa-274-2002.odt
Public Trust. In the year 1952, the grandfather of the plaintiffs
namely Kisan Lahanu Bhagat had applied for registration of the
Public Trust under the provisions of Bombay Public Trust Act.
The copy of application is placed on record of the Trial Court at
Exhibit-82. The application was tendered in terms of the Section
18 of the Bombay Public Trust Act, which specifically depicts
immovable property admeasuring 53 feet X 100 feet to be the
property of Temple/Public Trust. He would submit that the
temple was constructed out of public funds, so also Deities were
installed from the public contribution. The ancestors of the
plaintiffs were Pujari. They had never acquired title over the
property of the temple. He would further submit that the First
Appellate Court relied upon the documents, which depicts that
the dispute regarding distribution of respective shares in offerings
received at the temple have been settled among forefathers of the
plaintiffs through Court's decree. It has nothing to do with the
partition of the immovable property. He would submit that the
plaintiffs have failed to produce on record any document of title in
support of the their claim of exclusive ownership. Mr. Dhorde
would invite attention of this Court to the findings of this Court in
the judgment and order dated 19.04.2023 passed in Writ Petition
No.305/2023 with other connected Writ Petitions to contend that
the registration of the Public Trust is already held to be valid
alongwith property described in paragraph no.1(A) of the plaint.
He would point out that the temple is in existence since the time
immemorial. The grants were received from the Government for
management of the Ustav at Temple. The large number of
devotees visits the temple. Every year the Deity is taken from
Burhanagar by way of Palkhi (Palanquin) procession to the
Tuljapur with participation of large number of devotees. Huge
offerings are made to deity during such procession. He would
(10) sa-274-2002.odt
further submit that the evidence on record clearly depicts that the
suit property described in paragraph no.1(A) belongs to the Public
Trust. Mr. Dhorde would also submit that the grandfather of the
plaintiffs during his lifetime declared status of the property as
Trust property. The defendant no.2 i.e. father of the plaintiffs has
also accepted the status of the property being Trust property. The
grandfather of the plaintiffs never objected the status of the
property being Trust property during his life time. Conversely he
submitted the accounts of the income and expenditures of Trust to
the Charity Commissioner. He being trustee submitted the
change reports. The defendant no.2 i.e. father of the plaintiffs
after his appointment as Trustee furnished the income and
expenditure accounts with the Charity Commissioner. However,
when the learned Charity Commissioner framed Scheme, the
present suit is instituted by plaintiffs in collusion with defendant
no.2, who is Trustee. He would, therefore, submit that the
findings recorded by the First Appellate Court are contrary to the
material on record so also in ignorance of law governing the issues
involved in the present matter.
15. Mr. Dhorde would further submit that once property
is registered as Trust property, the Civil Court has no jurisdiction
to declare it otherwise. The suit claiming such relief would be
barred by Section 79 of the Bombay Public Trust Act. He would
further submit that the suit property is scheduled as Trust
property since 1952. The suit instituted after 28 years seeking
declaration contrary to its registration as Trust property is
hopelessly barred by limitation. He would further submit that the
plaintiffs have no locus standi to seek declaration of the
ownership in respect of the suit property, since their grandfather
has already declared it as a Trust property at the time of
registration of Trust. Mr. Dhorde would further submit that the
(11) sa-274-2002.odt
description of the property mentioned in plaint is vague. The
house numbers, village panchayat numbers are not depicted in
the description of the property, as mandated under Order VII
Rule 3 of the Code of Civil Procedure. He would, therefore,
submit that the impugned order passed by the District Judge is
liable to be quashed and set aside.
16. Per contra, Mr. Sapkal, learned senior counsel
appearing for respondent nos.1 to 4 (original plaintiffs) supports
the judgment and order passed by the First Appellate Court. He
would submit that there is voluminous evidence indicating that
the property is owned by the forefathers of the plaintiffs. He
would submit that there is no dispute on the point that the
plaintiffs alongwith defendant no.2 are in possession of the suit
property. The ancestors of the plaintiffs and defendant no.2 are
enjoying the ownership and possession of the property since time
immemorial. He would point out that the document at Exhibit-78
is certified copy of the order passed in Civil Suit No.1216/1893
between Bhiku Dhondi Teli Vs. Savalyaram Dhondi Teli, wherein
right to manage the Palkhi was exclusively claimed by then
plaintiffs. The said suit was dismissed. The Palkhi referable in
the aforesaid suit relates to the Deity in question. He would
further point out that in the year 1935 the suit was instituted by
Chandrabhan Savaleram Teli against Kisan Lahanu Bhagat
claiming rights in earning. Thereafter, there was resettlement of
the terms regarding rights vide Enquiry Application No.249/1942.
Thereafter, Dhondi Bhiku and others have surrendered Palkhi
rights in favour of Kisan Lahanu Bhagat against receipt of
Rs.900/-. There is partition dated 04.09.1942 (Exhibit-81),
wherein the distribution of the income out of donation/offerings to
the Goddess and Palkhi was settled. Mr. Sapkal would further
invite attention of this Court to the decree pertaining to the
(12) sa-274-2002.odt
redemption of mortgage in the Suit No.501/1859 between
Balkrushna Shivram Vs. Sakharam Bhagwant. Further there is
mortgage deed at Exhibit-90 dated 25.12.1913 in favour of the
Shankar Damodar Kate. Mr. Sapkal would, therefore, submit
that there is consistent evidence right from 1859 onward depicting
forefathers of the plaintiffs to be owners and possessors of suit
propertied from immemorial times. He would submit that there is
nothing on record to show that the temple or the suit properties
were purchased or raised out of public contributions. He would,
therefore, support the findings recorded by the First Appellate
Court that the suit properties are ancestral properties of the
plaintiffs and unconcerned with the Public Trust.
17. Mr. Sapkal would further submit that, although the
grandfather of the plaintiffs submitted an application for
registration of Trust with Charity Commissioner, there is nothing
to indicate that the enquiry regarding the nature of the properties
was conducted in accordance with law. The order regarding
registration of the Trust is not available in the record. Except the
entry regarding the Trust in the register, no record leading to the
registration of Trust from the stage of filing of the application
could be traced. He would, therefore, submit that there is no
reason to believe that the properties were intended to be made
part of Public Trust. By referring to the contents of the
application at Exhibit-82 submitted by the Kisan Lahanu Bhagat
under Section 18 of the Bombay Public Trust Act, he would
submit that even in application seeking registration of Trust suit
property described as a private property. The registration of the
Trust was not for any other object than to carry on day to day
Services/Pooja-archa of the Deities. There is no reason to discard
the case of the plaintiffs that the Public endowment was never in
existence and private Deity has been wrongly registered as a
(13) sa-274-2002.odt
Public Trust alongwith ancestral property of the plaintiffs. The
forefathers of the plaintiffs were uneducated persons and under
misconception of the legal provisions, the application has been
made for registration of the Trust. Mr. Sapkal would submit that
the Charity Commissioner cannot rule upon title of the property.
The plaintiffs are claiming their individual right and title over the
properties, wrongly shown to be property of the Trust. Such
dispute is beyond scope of inquiry or jurisdiction of the Charity
Commissioner under Section 79 of the Bombay Public Trust Act.
18. Mr. Sapkal would submit that plaintiff no.1 after
attaining the majority got the knowledge of registration of the
Trust, when Charity Commissioner attempted to take over charge
of the property. Therefore, suit is instituted seeking declaration
that the suit properties are ancestral properties of the plaintiffs
and unconcerned with the Trust. He would submit that even
otherwise Kisan Lahanu Bhagat i.e. grandfather of the plaintiffs
was not exclusive owner of the suit properties. He had no right to
dedicate suit property as Public Trust property. His erroneous act
would not bind rights of the plaintiffs. Therefore, the suit has
been instituted immediately after getting knowledge of erroneous
registration of the property with the Public Trust. He would
submit that the First Appellate Court has rightly considered all
the aspects of the matter in its proper perspective. The findings of
facts recorded by the First Appellate Court are based on evidence
on record, hence, do not call for any interference. He would
submit that the questions of law framed in this appeal are duly
dealt with by the First Appellate Court and answers to those
questions are elaborately discussed. No substantial question
requires further adjudication. Hence, he urges to dismissed the
appeal.
(14) sa-274-2002.odt
19. Having considered submissions advanced, I deem it
appropriate to first deal with the substantial questions of law (E)
and (F) respectively as framed by this Court at the time of
admission of the Second Appeal, since those relates to jurisdiction
of the Civil Court to entertain suit and period of limitation for
claims setup in the suit.
20. As regards to the jurisdiction of the Civil Court Or
Charity Commissioner to decide the nature of the suit properties,
first of all it would be necessary to look into the relief that has
been claimed in the present suit. The plaintiffs are seeking
declaration of the ownership and perpetual injunction, as regards
to the suit properties contending that those are ancestral
properties and unconcerned with the Trust registered under
Bombay Public Trust Act. The plaintiff no.1 stepped into the
witness box and reiterated the contentions that the suit properties
are ancestral properties and continuously owned and possessed by
his forefathers. Apparently, the plaintiffs are attempting to
assert individual title over the suit properties, converse to its
incorporation in schedule of Trust property. Therefore, question
that emerged for consideration before this Court is whether in
view of the provision of Sections 79 or 80 of the Bombay Public
Trust Act, the jurisdiction of the Civil Court is expressly or
impliedly barred to entertain the suit, particularly in respect of
the property described in paragraph no.1(A) of the plaint, which is
depicted as Trust property as per schedule (I) maintained with
the Charity Commissioner. The Sections 79 and 80 of the
Bombay Public Trust Act reads as under:
"79. Decision of property as public trust property:
(1) Any question, whether or not a trust exists and such
trust is a public trust or particular property is the property of
(15) sa-274-2002.odt
such trust, shall be decided by the Deputy or Assistant
Charity Commissioner as provided by this Act.
(2) An appeal shall lie against such decision of the
Assistant or Deputy Charity Commissioner to the Charity
Commissioner under Section 70.
80. Bar of jurisdiction :
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."
21. Pertinently Full bench of this Court had occasion to
deal with question of Civil Courts jurisdiction to entertain
individual claim of title in property acquired by the Trust in the
matter of Keki Pestonji Jamadar Vs. Rodabai Khodadad
Merwan Irani1. This court after considering the scheme of
Bombay Public Trust Act particularly the scope of inquiry under
Section 19 concluded in para no.27 as under:
"Neither the Act nor the Rules contemplate that persons who
claim 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. In fact, Section 19 and R. 7-A
(1) only reckon applications under S. 18 which are to be made
by trustees and applications by "any person having interest in
a public trust". Surely, persons in the position of Rodhabai
and Baimai are not persons "having interest in a public
trust". They are interested in the assertion of their own private
title to the property and disputing the right of Jamshedji to
convey that property to the trust."
Further in para no.29 it is observed that:
"And speaking of remedies, what is truly important is that the
Act provides no remedy to a person whose title is deemed to
have been concluded by the order of the Deputy or Assistant
Charity Commissioner, without affording to him an
opportunity of being heard. The argument is that the decision
that a particular property belongs to the trust involves the
determination that it belongs to no one else and therefore,
1 1972 Mh.L.J. 427.
(16) sa-274-2002.odt
after the Deputy or Assistant Charity Commissioner records a
decision in the inquiry, the Civil Court has no jurisdiction, in
view of Section 80, to decide any question regarding title to
the particular property. It is legitimate to inquire: if Section
80 bars the suit, does the Act provide a remedy to the
aggrieved person, as a self-contained Code should provide?"
While concluding in para no.31 it is observed thus:
"If the Act and the Rules thus contemplate in terms that the
inquiry must be limited to the contentions of persons
interested in the trust, there is no place in that inquiry for a
person who wants to set up a title which is hostile to the trust.
Such a claim is not a "particular relating to" the public trust,
nor can it be said that it "has remained to be inquired into".
22. In the matter of Ramnarayan s/o Manilal Sahu
and Others Vs. State of Maharashtra and Others 2, this Court
after giving due consideration to the observations of the Full
Bench of this Court in the matter of Keki Pestonji Jamadar
(supra) concluded that the question of title in respect of the
property acquired by the Trust has to be decided by the Civil
Court in independent suit filed. Hence, Section 80 of the Bombay
Public Trust Act is no bar to the Civil Court to decide such
question.
23. The Supreme Court in the matter of Vinayaka Dev,
Idagunji and Others Vs. Shivaram and Others 3 observed that
the main object of the Public Trust Act is to regulate
administration of the Public Trust. The right asserted by the
plaintiffs in the plaint is claimed as their families'
personal/private right. Whether they are entitled to continue as
Archaks on hereditary basis is a private claim of the plaintiffs.
Further, this Court in the matter of Abhishek Ravishankar
Agrawal Vs. Assistant Charity Commissioner Bhandara
and Another4, observed that the question whether author of the
2 2005 (2) Mh.L.J. 95.
3 (2005) 6 SCC 641.
4 2009 (2) Mh.L.J. 178.
(17) sa-274-2002.odt
Trust had title and competence to deal with the properties alleged
to be of Joint Hindu Family properties, is clearly beyond the scope
of scrutiny and inquiry under the provisions of Bombay Public
Trust Act. In yet another judgment, this Court in the matter of
Shree Hanuman Mandir, Alibag, Public Trust through its
Trustees & ors. Vs. Satishchandra Bhalchandra Gurjar &
ors.5 observed in paragraph no.31 that, the plaintiffs have not
raised any dispute as regards administration or management of
the Trust, deities and temple. In other words, since the questions
raised in the Suit are unconnected with the administration or
possession of the trust property, the Civil Court will have the
jurisdiction to entertain and try the Suit. The Division Bench of
this Court in the matter of Samastha Lad Vanjari Samaj &
Another Vs. Waman Kisan Sanap & others 6 observed that "In
our opinion, the conclusion is inescapable that what the full
Bench has decided is that questions of title to the trust property
are outside the scope of an inquiry under section 19 of the Act so
that disputed questions of title are not to be dealt with by the
Deputy or the Assistant Charity Commissioner and this authority
had to confine itself to determination of those questions and those
questions only which it is required to decide under the provisions
of the statute." It is further held that a person who sets up a
claim hostile to the Trust cannot by any stretch of imagination be
said to be a person having interest in the Trust.
24. In case of J.V. Gokal Charity Trust Vs. Contrex
Pvt. Ltd this court laid general principles as regards
jurisdictional bar of civil court in view of section 79 and 80 of the
MPTA, relevant part reads as under
(b) A substantive suit for an adjudication of title is not hit
by the jurisdictional bar of Sections 79 and 80 of the
5 2014 (2) Bom. C.R. 221.
6 1976 Mh. L.J. 806.
(18) sa-274-2002.odt
MPTA. The determination of whether or not a property is
the property of a trust is for the purpose of an enquiry,
findings and making an entry in the register. It is not an
adjudication of title of the kind a Civil Court can do.
(c) The correctness of any entry in the register is liable to
challenge, including under Section 72 in a suit; and,
following Section 26, an order of a court on that must
result in the necessary changes being effected in the
register.
(e) Where the persons in question are not persons having
interest in the trust, as for example rank outsiders
claiming a hostile title independently in themselves, then,
too, no permission can ever be obtained from the Charity
Commissioner under Sections 50(i) to (iii) of the MPTA.
(f) The jurisdictional bar under Sections 79 and 80 only
applies to those acts that the Charity Commissioner and
other authorities are required by the statute to do.
It does not extend to matters beyond the purview or powers
of those authorities.
25. In another judgment recently delivered by Division
Bench of this Court in the matter of Dipesh Mehta and others
Vs. Gerald Shirley and others 7, this Court after taking survey
of the scheme under Bombay Public Trust Act and various
pronouncement observed in para no.56 :
"Once we accept that what is being canvassed by the
plaintiffs is an enforcement of their civil rights then there is
no question of jurisdictional ouster."
26. Mr. R. N. Dhorde, learned Senior Counsel for
appellants while contending that jurisdiction of civil court is
barred in facts of present case placed his reliance on judgments of
this court as well as Supreme Court in case of Mahibubi Abdul
Aziz Vs. Sayyed Abdul Majid and others 8, Lakhanlal Brijlal
Purohit and Others Vs. Marwadi Samshan Hanuman
7 2023 (2) ALL MR 467.
8 2001 (2) Mh.L.J 512
(19) sa-274-2002.odt
Mandit Akot9, The Church of North India Vs. Lawajibhai
Ratanjibhai and others10, Rajesh Chunnilal Meghani Vs.
Andheri Recreation Club and others 11, Ms. Jankibai
Prahladraj Seksari Vs. Kashinath Kelkar and others 12,
Ganpat Surwase-Walke Vs. Government of Maharashtra 13,
to contend that civil courts jurisdiction to entertain claim in
respect of Trust property is barred as per scheme and provisions
contained u/s 79 and 80 of BPT Act,
27. In case of Church of North India (Supra) Supreme
Court in para 82 and 83 observed thus:
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 law. The civil court's
jurisdiction may not be barred as it gives rise to a
jurisdictional question. If a property did not validly vest in
a trust or if a trust itself is not valid in law, the authorities
under the Act will have no jurisdiction to determine the
said question.
9 2006 (3) ALL MR 524
10 (2005) 10 SCC 730
11 2017 (5) Mh. L.J 167
12 AIR 1972 SC 199
13 2010 (5) ALL MR 72
(20) sa-274-2002.odt
With a view to determine the question as regard exclusion
of jurisdiction of 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. Once a decision is arrived at, having regard to the
nature of the claim as also the reliefs sought for, that civil
court has no jurisdiction, Section 26 per force will have no
application whatsoever.
28. In cases of Mahibubi and Lakhanlal (Supra) full
bench judgment of this court in case of Keki Pestonji Jamadar
(supra) is not referred. However this court after referring to the
scheme of the act, specially scope of inquiry u/s 19 of the act
concluded that question of title can be gone into by the authorities
under the act and ascertain that property is trust property or not.
The civil court cannot be permitted to usurp jurisdiction of
competent authority in view of express bar u/s 80 of the Act. In
case of Keshav Bharti (Supra) challenge was made to the order
passed by Assistant Charity Commissioner regarding registration
of Trust with suit property and declaration was sought that order
(21) sa-274-2002.odt
of charity commissioner is null and void, not binding to right of
plaintiffs and also suit property is not trust property, which is
held to be incompetent before civil court.
29. In view of legal position espoused from various
pronouncements of the Supreme Court of India as well as this
Court it can be irresistibly concluded that the when claim of title
is raised by an individual / stranger relating suit property thereby
asserting his independent right or title adverse and hostile to the
Trust, it would be beyond the scope of inquiry under the
provisions of Bombay Public Trust Act. Thus, the jurisdiction of
the Civil Court is not barred to entertain and decide such claim.
30. Keeping in mind aforesaid principles of law lets
examine facts of present case, apparently the plaintiffs are
claiming their title in respect of the suit properties in exclusion of
the Trust stating it to be their ancestral property. They are
further coming with the case that their grandfather neither
intended nor had authority to transfer or dedicate the suit
property upon the Trust excluding rights of others. The
registration of property in schedule of trust is under
misconception of facts. If sum and substance of relief claimed by
plaintiffs is extracted in true spirit, it can be gathered that they
are raising challenge to registration of Trust so also inclusion of
suit property in schedule of Trust under section 21 of the Act in
pursuance of order of competent authority passed in year 1952 on
inquiry u/s 19 of the act. Pertinently the property is registered as
trust property on the basis of application tendered by grandfather
of plaintiffs u/s 18 of the Act for registration of Trust. It can not be
disputed that in the year 1952 grandfather of plaintiffs was
exclusively in control of temple and suit property. He was
competent to file such application so also he had every authority
(22) sa-274-2002.odt
to include property of Temple as Trust property. The plaintiffs
were not even born at that time. The father of plaintiffs never
raised challenge to inclusion of property as Trust property till the
date of filing this suit. The plaintiffs who are claiming their right
through father or grandfather cannot have right, independent of
their grandfather who on his volition included property as Trust
property before their birth. Therefore plaintiffs cannot assert
independent title in suit property or raise challenge to its
registration being trust property without assailing order of
charity commissioner thereby entering it in schedule of Trust. The
plaintiffs cannot be treated as strangers to the trust when they
rest claim through their father or grandfather. If they wish to
challenge registration of property as trust property such
questions would definitely fall within the scope of jurisdiction of
the Charity Commissioner or his subordinate officer under the
scheme of Bombay Public Trust Act. Pertinently at the time of
institution of suit the title of suit property had been absolutely
vested with trust. Even before their birth vesting of suit property
with trust was completed as per law. At the time of institution of
suit neither plaintiffs joint family property was existence nor had
independent claim over trust property. Even assuming suit
property was originally ancestral property held by grandfather of
plaintiff, it culminated in Trust on his voluntary dedication. The
material on record i.e. various Court proceedings clearly depicts
that grandfather of plaintiffs was a prudent man, conversant of
legal proceedings and its consequences. In that view of the matter
it is difficult to accede with contentions of plaintiffs that under
misconception suit property was registered by him as trust
property.
(23) sa-274-2002.odt
31. As held by Supreme court in case of Church of North
India vs Lavajibhai (Supra). the courts are required to look in to
nature of claim, underlying object in seeking relief in substance
and not in form while deciding issue as to exclusion of jurisdiction
of civil court. Pertinently, the Trial Court as well as the Appellate
Court have failed to observe that in all probabilities, present suit
is instituted to avoid rigours of provisions of the Act by father of
plaintiffs i.e. defendant No.2 in the name of plaintiffs. Both courts
committed patent illegality while holding that the suit is
maintainable. I conclude that the Civil Court has no jurisdiction
to try and entertain present suit in view of section 79 and 80 of
the Act.
32. The next substantial question of law is whether suit
filed by the plaintiffs is within the limitation? The plaintiffs seeks
declaration that suit property 1-A in ancestral property and
unconcerned with public Trust and perpetual injunction in respect
of the suit properties. The cause of action for filing the suit is
stated to be the action taken by the authorities under Bombay
Public Trust Act, thereby collecting money and other articles
offered in the boxes kept before the Deities in the month of
November 1981. According to the plaintiffs, they have recently
got knowledge of the registration of the Trust including the suit
properties. The plaintiff no.1 was aged about 20 years at the time
of institution of the suit. As such, he asserts his right in the
properties claiming it to be ancestral properties. The Trial Court
had framed the issue as regards to the limitation and recorded
affirmative finding in favour of the plaintiffs. It is observed that
suit has been instituted within a period of three years in terms of
Article 113 of the Limitation Act. Since the plaintiffs have pleaded
that they got the knowledge regarding registration of the Trust
(24) sa-274-2002.odt
with suit properties in the year 1980, the suit is well within the
limitation. The First Appellate Court also framed points for
consideration and affirmed findings of the Trial Court holding
that the suit is within limitation. Taking into account provisions
of Article 58 and 113 of Limitation Act and date of cause of action
as pleaded in the plaint suit is instituted within prescribed
limitation period of three years. There is no reason to interfere in
the findings of the Courts below. Although, the appellants have
raised objections regarding limitation, the written statement
nowhere specifies pleadings in support of such objections. Hence,
I find that suit is filed well within limitation from date of cause of
action. The substantial question of law framed is answered
accordingly.
33. Now turning to the first four questions of law i.e. (A),
(B), (C) and (D). All of them require joint consideration. The
question no.(D) goes to the root of the litigation since it deals with
the nature of the properties, whether private or ancestral
properties. The plaintiffs in support of their claims that suit
properties are ancestral properties and unconcerned with the
Trust, relied upon oral evidence of plaintiff no.1 himself and
documentary evidence. The oldest document relied upon by the
plaintiffs is placed at Exhibit-83, which is decree in Suit
No.501/1859 between Balkrushna Shivaram Vs. Dhondi Balaji &
Ors. They have also relied upon subsequent orders passed in
various proceedings instituted by or against the family members
of the plaintiffs. For the purpose of better understanding of the
documentary evidence tendered into service, it would be
appropriate to refer to the undisputed genealogy/pedigree (As
refereed in WP No. 305/2023), which is as under:
(25) sa-274-2002.odt
Jankoji
Dhondi-(Grandson)
Bhiku (died sometimes in the year 1912)
Lahanu (died in the year 1935)
Kisan (died in the year 1979)
Arjun (defendant no.2)
Vijay and three others (plaintiffs)
34. On perusal of the certified copy of the decree in Civil
Suit No.501/1859 placed at Exhibit-83, it can be gathered that
suit was instituted by Balkrushna Shivaram and another against
Dhondi for recovery of amount on the basis of mortgage. Dhondi
had mortgaged his mansion consisting of 74 khan and it was
subsequently redeemed. Another document relied upon by the
plaintiffs is at Exhibit-78, which pertains to the Civil Suit
No.1216/1893 between Bhiku and Savalyaram. The subject
matter of the suit is right to manage Palkhi (palanquin)
procession from Rahuri to Tuljapur. In that suit, the sons of
Dhondi namely Bhiku and Savalyaram were declared to have a
joint right. However said suit nowhere deals with the partition or
distribution of the rights in the immovable properties of the
temple. The subsequent document pertains to the decree in Civil
Suit No.246/1935 decided on 28.06.1938 between Chandrabhan
Savaleram Teli Vs. Kisan Lahanu Devkar and further Application
No.249/1942 seeking modification of the decree regarding rights
in earnings of the temple. Another document placed at Exhibit-
90, is certified copy of mortgage deed dated 25.12.1913 by Lahanu
(26) sa-274-2002.odt
Bhiku Bhagat in favour of the Rajeshree Shankar Damodhar
Kate. It pertains to the mortgage of the house property executed
by Lahanu Bhagat in favour of Rajeshree Shankar Damodhar
Kate. However, on the basis of the aforesaid documents, it is
difficult to draw any inference that ancestors of the plaintiffs were
absolute owners of the properties. The partition deed dated
04.09.1942 at Exhibit-81 pertains to distribution of the offerings
received towards services like pooja and archa performed in the
temple of the Goddess amongst the heirs of the Kisan Lahanu
Devkar and others. Therefore, aforesaid documents are bereft to
support the claim of the plaintiffs that the suit properties were
their ancestral properties. The learned District Judge appears to
have drawn inference on the basis of the order passed in the Civil
Suit No.501/1859 and 1216/1893 that the suit properties must be
ownership properties of the ancestors of the plaintiffs.
35. Although the plaintiffs have filed document Exhibit 83
relating to suit for redemption of mortgage of the year 1859, the
description of the property mentioned therein is not comparable to
suit property. There is nothing on record by which property
described in that suit can be identified as present suit property.
Further there is no material on record to indicate partition of the
immovable property amongst the ancestors or forefathers of the
plaintiffs, which could be normal feature of ancestral property.
What is being distributed in partition is the receipts or offerings
made before the Deities. Apparently, plaintiffs' forefathers were
performing their duties as Pujari and living on offerings received
from the devotees. The existence of temple as could be gathered
from pleadings in old suits and documents, appears since
immemorial time. It clearly denotes the public character of the
Deities and temple, converse to the claim of the plaintiffs that the
Deities were installed in the year 1912 by their forefathers at a
(27) sa-274-2002.odt
private place of worship. Pertinently grants were made available
from the Government for palanquin/Palkhi procession or the
management of Yatra. The public character of the temple cannot
be superseded only because the plaintiffs' forefathers were
enjoying the right to perform daily rituals of the Deities.
Therefore, even considering the documents at Exhibit-81 i.e.
partition deed dated 04.09.1942 as referred in first substantial
question of law or the mortgage deed referred in third question of
law, the claim of the plaintiffs regarding its character as ancestral
properties cannot be established.
36. The document at Exhibit-82 is an application
submitted by Kisan Lahanu Bhagat i.e. grandfather of the
plaintiffs under Section 18 of the Bombay Public Trust Act,
wherein at the time of registration of the Trust, the property as
described in paragraph no.1(A) is shown as Trust property.
Thereafter, the purpose of Trust is mentioned as maintaining the
temple of the Deities and continue daily services of the pooja-
archa and offerings. The grandfather of the plaintiffs was sole
Trustee and the Trust had earning from the offerings made to the
Deities and grant of Rs.21/- from the Government at the time of
the registration of the Trust. Upon registration of the Trust, the
public character of the temple was maintained by the grandfather
of the plaintiffs till his death. He had submitted accounts of
income and expenditures to the Charity Commissioner.
Thereafter, defendant no.2 i.e. father of the plaintiffs has been
added as Trustee and he was in the control and management of
the Trust. Pertinently, the grandfather of the plaintiffs, so also
father of the plaintiffs at no point of time till the institution of
present suit challenged the registration of the Trust alongwith
suit property described in paragraph no.1(A) of the plaint.
(28) sa-274-2002.odt
37. Pertinently father of the plaintiffs i.e. defendant no.2
while managing the affairs of the Trust, instituted Regular Civil
Suit No.671/1980 before the Civil Judge, Junior Division at
Ahmednagar seeking relief of declaration and perpetual
injunction against Grampanchayat Burhanagar pertaining to the
open spaces surrounding Temple. He claimed himself to be sole
Trustee of the temple of "Jagdamba Tuljapurchi Devi" having
rights of prayer with the family of the plaintiffs. It also refers to
the registration of the Trust and right to manage the property of
the Trust including open spaces surrounding the temple. In the
plaint specific reference is made that on 16.08.1952 in the enquiry
conducted by the Tahasildar, it is held that the properties belong
to the temple and the plaintiffs. The issue no.4 was specifically
framed in that suit, which reads thus:
"Is the suit in the name of Pujari in respect of this trust
property tenable?".
38. It has been answered in affirmative and right of
the plaintiff in suit properties was confirmed being the Pujari
of the temple on behalf of the Trust. The said decree attained
finality on confirmation by this court in Second Appeal
No.16/2001 vide judgment and order dated 22.06.2004.
Apparently, the father of the plaintiffs had also accepted the
status of the suit properties to be the Trust properties
accordingly established his claim in the Regular Civil Suit
No.671/1980. The copy of the judgment dated 16.08.1996 is
placed at Exhibit-92 on the record of present suit. The
observation and findings in that proceeding clearly demolish
plaintiffs claim that suit properties described in para 1 (B) (C)
and (D) are their ancestral or ownership properties.
(29) sa-274-2002.odt
39. One more significant facet of the matter is that
although plaintiffs are seeking declaration of suit properties being
ancestral and unconcerned with the Trust, so far registration of
the Trust is concerned, it was never challenged by their
grandfather during his lifetime nor it has been assailed by
defendant no.2 i.e. (father of the plaintiffs) till institution of the
present suit. It is only when the scheme had been framed and
offerings received at temple were accounted for the public Trust,
present suit has been instituted. Thereafter, defendant no.2
appears to have initiated separate proceeding before Chatity
Commissioner challenging the registration of the Trust as well
the order framing of the scheme under Bombay Public Trust Act.
However, the aforesaid challenge failed affirming its validity upto
this court in Writ Petition No.305/2023 with other connected Writ
Petitions. This Court has recorded elaborate reasons in support of
conclusions.
40. Pertinently plaintiffs who were not even born at the
time of registration of the Trust with suit property are seeking
declaration that the suit properties are their ancestral properties
and unconcerned with the Trust. Apparently, the grandfather of
the plaintiffs on his own volition made an application for
registration of the Trust in the year 1952 including the property
described in paragraph no.1(A) of the plaint to be the property of
the Trust with an object to continue sanctity of the Deities and
performance of daily rituals. He continued to discharge his duties
as Trustee. During his lifetime father of the plaintiffs (Defendant
No. 2) was introduced as trustee by way of change report and he
continued as Trustee without challenging the public character of
the Trust and its properties. At this stage reference can be made
to the observations of the privy counsel in case of Maharani
(30) sa-274-2002.odt
Hemanta Kumari Debi Vs. Gauri Shankar Tewari14, wherein
it is observed that:
"from the stand point of Hindu law it is not essential to a
valid dedication that legal title should pass from the owner
nor is it inconsistent with an effectual dedication that the
owner should continue to make any and all uses of the
land which do not interfere with uses for which it is
dedicated."
41. In that view of the matter, even assuming that
initially suit properties were ancestral ownership, however once
dedicated would completely vest with the public trust, owing to
voluntary act on the part of the grandfather of the plaintiffs in the
year 1952 itself, when plaintiffs were even not born. The
grandfather of the plaintiffs or at the most defendant no.2 i.e.
father of the plaintiffs could have asserted their private right in
respect of the properties, if those were assumed to be ancestral
properties. However, the plaintiffs could have no locus to set up
any claim in respect of the property, which had been completely
vested into the public Trust in the year 1952. Consequently,
plaintiffs never had cause of action to set up claim in respect of
such properties. Pertinently, the plaintiffs are claiming their
rights through their father or grandfather. In absence of any
claim by father or grandfather of the plaintiffs after registration
of public trust with properties, the plaintiffs cannot have
independent right to set up claim of ownership. In that view of
the matter, I have no hesitation to hold that First Appellate
Courts conclusion that the suit properties are private ancestral
properties of the plaintiffs is patently illegal.
14 58 Mad 994.
(31) sa-274-2002.odt
42. Now turning to next substantial question of law (B)
regarding Order VII Rule 3 of the Code of Civil Procedure. The
Trial Court had framed issue 1(A) on the basis of the objection
raised by defendant nos.3 and 4 in paragraph no.10 of the written
statement and held that in absence of survey numbers, gut
numbers or grampanchayat property numbers, the suit properties
cannot be identified and the description of the properties given in
the plaint sans requirement of Order VII Rule 3 of the Code of
Civil Procedure. Pertinently, it is not the case of the defendants
that the properties were marked with gut numbers, survey
numbers or grampanchayat property numbers at the time of filing
of the suit. The plaintiffs are coming with the case that the
properties are situated in gaothan area, therefore, they have
described properties by giving four boundaries with
measurements. As such, there is no serious dispute as regards to
the identification of the properties. In that view of the matter, it
will have to be held that there is no error in findings recorded by
the Appellate Court that plaint is compliant with provisions of
Order VII Rule 3 of the Code of Civil Procedure. No fault can be
found in the view taken by First Appellate Court on this aspect.
Hence I answer substantial question of law (B) accordingly.
43. So far as first and third question of law (A & C) is
concern it relates to interpretation of document Exhibit 81 i.e.
partition deed dated 26.08.1942. As observed in forgoing
paragraphs, partition deed relates to distribution of income
received towards offering before deity. It has no significance in
deciding ownership of suit property. Even first appellate court has
not based its finding on this document although drawn some
support from it. So far as mortgage deed Exhibit 91 is concerned,
record show that Xerox copy of certified copy issued by this court
(32) sa-274-2002.odt
in F.A. 2578/1983 is filed on record. Trial court in paragraph 16 of
judgment observed that Exhibit 91 is xerox copy of unregistered
mortgage deed. Original is not produced. Even it is not the case of
plaintiffs that original is lost. Hence document exhibit 91 cannot
be considered in evidence. Even first appellate court has not
referred or relied on said document. Accordingly Substantial
question of law so framed does not survive
44. In result, second appeal succeeds. Hence following
order:
ORDER
a. The Second Appeal is allowed.
b. The judgment and decree dated 16.01.2002 passed by the
learned District Judge, Ahmednagar in Regular Civil Appeal
No.21/2000 is hereby quashed and set aside and judgment and
decree dated 10.12.1999 passed by the Joint Civil Judge, Junior
Division, Ahmednagar thereby dismissing Regular Civil Suit
No.600/1982 is restored.
c. In view of disposal of the Second Appeal, pending Civil
Applications are also disposed of.
(S. G. CHAPALGAONKAR)
JUDGE
Devendra/November-2023
Signed by: Devendra Nandkumar Kale
Designation: PS To Honourable Judge
Date: 29/11/2023 18:10:37
