Madhya Pradesh High Court
Suraj Prasad (Dead) Through L.Rs. ... vs Murli Shri Shankarji Maharaj ... on 14 June, 2023
Author: Arun Kumar Sharma
1
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALP UR
BEFORE
HON'BLE SHRI JUSTICE ARUN KUMAR SHARMA
SECOND APPEAL No. 644 of 2022
BETWEEN:-
1. SURAJ PRASAD (DEAD) THROUGH L.RS.
SMT.NIDHI NAMDEO W/O LATE LOKESH
NAMDEO, AGED ABOUT 45 YEARS,
OCCUPATION: NIL R/O. BUS STAND PATAN,
DIST.JABALPUR (MADHYA PRADESH)
2. KRISHNA NAMDEO S/O LATE LOKESH
NAMDEO, AGED ABOUT 15 YEARS,
OCCUPATION: MINOR THROUGH
NATURAL GUARDIAN SMT. NIDHI
NAMDEO W/O LATE LOKESH NAMDEO,
R/O. BUS STAND PATAN, DISTRICT
JABALPUR (MADHYA PRADESH)
3. ALOK KUMAR NAMDEO S/O LATE SURAJ
PRASAD NAMDEO, AGED ABOUT 44 YEARS,
OCCUPATION: NIL, R/O.BUS STAND PATAN,
DISTRICT JABALPUR (MADHYA PRADESH)
4. SURESH KUMAR NAMDEO S/O THAKUR
PRASAD NAMDEO, AGED ABOUT 73 YEARS,
OCCUPATION: NIL, R/O. PATAN TAHSIL
PATAN DISTRICT JABALPUR (MADHYA
PRADESH)
5. DEVENDRA KUMAR NAMDEO S/O THAKUR
PRASAD NAMDEO, AGED ABOUT 67 YEARS,
OCCUPATION: NIL, R/O. PATAN TAHSIL
PATAN DISTRICT JABALPUR (MADHYA
PRADESH)
6. GOVIND NAMDEO S/O THAKUR PRASAD
NAMDEO, AGED ABOUT 67 YEARS,
OCCUPATION: NIL, R/O. PATAN TAHSIL
PATAN DISTRICT JABALPUR (MADHYA
PRADESH)
7. RAJU NAMDEO S/O THAKUR PRASAD
NAMDEO, AGED ABOUT 59 YEARS,
OCCUPATION: NIL, R/O. PATAN TAHSIL
PATAN DISTRICT JABALPUR (MADHYA
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 6/14/2023
5:52:26 PM
2
PRADESH)
8. RAMESH NAMDEO S/O THAKUR PRASAD
NAMDEO, AGED ABOUT 61 YEARS,
OCCUPATION: NIL, R/O. PATAN TAHSIL
PATAN DISTRICT JABALPUR (MADHYA
PRADESH)
9. SUBHASH NAMDEO S/O THAKUR PRASAD
NAMDEO, AGED ABOUT 57 YEARS,
OCCUPATION: NIL, R/O. PATAN TAHSIL
PATAN DISTRICT JABALPUR (MADHYA
PRADESH)
.....APPELLANT
(BY SHRI ANURAG TIWARI - ADVOCATE )
AND
1. MURTI SHRI SHANKARJI MAHARAJ
VIRAJMAN MAMDOR NAAG TALAB PATAN
THROUGH RADHESHYAM S/O MANGAL
NAMDEO, R/O. PATAN (MADHYA PRADESH)
2. RADHEY SHYAM NAMDEO S/O MANGAL
PRASAD NAMDEO, AGED ABOUT 64 YEARS,
OCCUPATION: NIL, R/O. PATAN TAHSIL
PATAN DISTRICT JABALPUR (MADHYA
PRADESH)
3. PURSHOTTAM S/O BARE LAL NAMDEO,
AGED ABOUT 52 YEARS, OCCUPATION: NIL
R/O. PATAN TAHSIL PATAN DISTRICT
JABALPUR (MADHYA PRADESH)
4. MUKESH KUMAR S/O AMRIT LAL
NAMDEO, AGED ABOUT 45 YEARS,
OCCUPATION: NIL, R/O. PATAN TAHSIL
PATAN DISTRICT JABALPUR (MADHYA
PRADESH)
5. DEVDUTT PRASAD BABELE S/O SURAJ
PRASAD BABELE, AGED ABOUT 68 YEARS,
OCCUPATION: NIL, R/O. PATAN TAHSIL
PATAN DISTRICT JABALPUR (MADHYA
PRADESH)
6. SUNIL KUMAR NAMDEO S/O MAHESH
PRASAD NAMDEO, AGED ABOUT 60 YEARS,
OCCUPATION: NIL, R/O. PATAN TAHSIL
PATAN DISTRICT JABALPUR (MADHYA
PRADESH)
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 6/14/2023
5:52:26 PM
3
7. REGISTRAR PUBLIC TRUST AND SUB
DIVISIONAL OFFICER PATAN TAHSIL
DISTRICT JABALPUR (MADHYA PRADESH)
8. COLLECTOR JABALPUR FOR STATE OF MP
AND THE DISTRICT REGISTRAR PUBLIC
TRUST JABALPUR (MADHYA PRADESH)
9. PEETAMBAR ALIAS BABU LAL (SINCE
DEAD) THORUGH LRS. MITHILESH BAI
W/O LATE ASHOK NAMDEO, AGED ABOUT
52 YEARS, OCCUPATION: NIL, R/O. BUS
STAND PATAN, DISTRICT JABALPUR
(MADHYA PRADESH)
10. ROHIT S/O LATE ASHOK NAMDEO, AGED
ABOUT 32 YEARS, OCCUPATION: NIL, R/O.
BUS STAND PATAN, DISTRICT JABALPUR
(MADHYA PRADESH)
11. MOHIT S/O LATE ASHOK NAMDEO, AGED
ABOUT 30 YEARS, OCCUPATION: NIL, R/O.
BUS STAND PATAN, DISTRICT JABALPUR
(MADHYA PRADESH)
12. PRAKASH NAMDEO S/O PEETAMBAR
ALIAS BABU LAL NAMDEO, AGED ABOUT
49 YEARS, OCCUPATION: NIL, R/O. PATAN
TAHSIL PATAN DISTRICT JABALPUR
(MADHYA PRADESH)
13. ARVIND NAMDEO S/O LATE PEETAMBAR
ALIAS BABU LAL NAMDEO, AGED ABOUT
44 YEARS, OCCUPATION: NIL, R/O. PATAN
TAHSIL PATAN DISTRICT JABALPUR
(MADHYA PRADESH)
14. JITENDRA NAMDEO S/O LATE
PEETAMBAR ALIAS BABU LAL NAMDEO,
AGED ABOUT 44 YEARS, OCCUPATION:
NIL, R/O. PATAN TAHSIL PATAN DISTRICT
JABALPUR (MADHYA PRADESH)
15. DHARMENDRA NAMDEO S/O LATE
PEETAMBAR ALIAS BABU LAL NAMDEO,
AGED ABOUT 36 YEARS, OCCUPATION:
NIL, R/O. PATAN TAHSIL PATAN DISTRICT
JABALPUR (MADHYA PRADESH)
16. NARENDRA NAMDEO S/O PEETAMBAR
ALIAS BABU LAL NAMDEO, AGED ABOUT
Signature Not Verified
Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 6/14/2023
5:52:26 PM
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34 YEARS, OCCUPATION: NIL, R/O. PATAN
TAHSIL PATAN DISTRICT JABALPUR
(MADHYA PRADESH)
17. SMT. LAXMI NAMDEO D/O PEETAMBAR
ALIAS BABU LAL NAMDEO, AGED ABOUT
55 YEARS, OCCUPATION: NIL, R/O. PATAN
TAHSIL PATAN DISTRICT JABALPUR
(MADHYA PRADESH)
18. SMT. JYOTI D/O PEETAMBAR ALIAS BABU
LAL NAMDEO, AGED ABOUT 40 YEARS,
OCCUPATION: NIL, R/O. PATAN TAHSIL
PATAN DISTRICT JABALPUR (MADHYA
PRADESH)
19. TEHSILDAR PATAN TAHSIL DISTRICT
JABALPUR (MADHYA PRADESH)
.....RESPONDENTS
(BY SHRI ASHOK KUMAR TIWARI - ADVOCATE WITH SHRI RAKESH KUMAR
NAMDEO AND SHRI R. S. SAINI - ADVOCATE FOR RESPONDENTS NO. 3, 4, 5 & 6
AND SHRI RAVINDRA RAJPUT - PANEL LAWYER FOR THE STATE )
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Reserved on : 11-05-2023
Pronounced on : 14-06-2023
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This appeal having been heard and reserved for order, coming on for
pronouncement this day, the court pronounced the following:
JUDGMENT
With the consent of the parties, the matter is finally heard.
1. The appellants / defendants have preferred present second appeal under
Section 100 of C.P.C. being aggrieved by the judgment and decree dated
24/01/2022 passed by District Judge, Jabalpur in Regular Civil Appeal No.
190/2016, whereby learned first appellate Court by allowing the first appeal has
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Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 6/14/2023
5:52:26 PM
set aside the judgment and decree dated 09/09/2016 passed by Civil Judge Class
I, Patan, District Jabalpur in R.C.S.A. No. 77-A/2015.
2. The relevant facts leading to the filing of this appeal as emerging from
the case made out by the appellants are narrated in a nutshell for a better
understanding and determination of the disputes between the parties are that late
Jarabal, Umrao and Gorelal were the sons of late Damdi Lal. Smt. Sukhrani was
the wife of late Umrao and both of them had no issue. Late Jarabal had two sons
namely; Thakur Das / Thakur Prasad and Kashi Ram. The appellant Nos. 2 to 7,
late Suraj Prasad and late Peetambar @ Babu Lal are sons of Thakur Das. Kashi
Ram had three sons namely; Bhagwan Das Vaidya, Bhagwat Prasad and Amrit
Lal / Imrat Lal. Smt. Sukhrani and Thakur Das purchased disputed lands
bearing Khasra Nos. 271, 273, 274, 275, 301 and 437 total area 14.61 acres
situated at Patan, Tahsil Patan, District Jabalpur and they had executed a
registered Tamleeknama dated 30/03/1936 (Ex. P/1), by which a private family
trust / respondent No.1 was created and the said lands were given to respondent
No.1. By this document, late Sukhrani and Thakur Das were appointed as
Sarvarakar and five other persons were appointed as trustees. Subsequently,
Smt. Sukhrani executed a will dated 07/08/1938 (Ex.P/2), which was registered
on 15/08/1938 and a temple was constructed in which idol of Shri Shankarji
Maharaj was installed and a Dharmshala was also constructed. Thus,
respondent No.1 is a private trust of family of Smt. Sukhrani and Thakur Das.
3. In Revenue Case No. 226/7/52-53 by order dated 29/03/1953, respondent
no.7 Registrar, Public Trust and Sub Divisional Officer, Patan, District Jabalpur
held the respondent no.1 as private trust. On 05/08/1957, Bhagwas Das Vaidya
filed an application alleging that Thakur Prasad is trying to misappropriate the
trust property and he prayed for taking action against him and respondent no.1
be registered as public trust. An objection was filed by Thakur Prasad pleading
that previously respondent No.1 has been held as public trust. The matter was
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KUMAR PAROUHA
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referred to the Sub Divisional Officer, Patan for enquiry, whereat said objection
was raised and the same was overruled on 29/11/1957, hence, an appeal was
filed, which was decided by Registrar, Public Trust, Jabalpur vide order dated
16/07/1958, wherein it was directed to have remedy of civil suit for declaration
regarding nature of trust and the application dated 05/08/1957 of Bhagwan Das
Vaidya was rejected. Later on, vide order dated 27/04/1984, an application filed
by father of plaintiff Mukesh for registration of respondent No.1 as public trust
was dismissed.
4. In spite of all the three said orders, which were well within the knowledge
of the plaintiffs, plaintiff Mukesh Namdeo filed an application under Section 4
of M.P. Public Trust Act, 1951 (hereinafter called as "the Act" of 1951) for
registration of respondent No.1 as public trust. The present appellants and late
Smt. Chhab Rani and deceased Peetambar @ Babu Lal raised objection that
respondent No.1 has already been held public trust; hence, the application filed
under Section 4 of the Act, 1951 is barred by principle of res judicata. By order
dated 30/07/2001 (Annexure P/21), respondent No.7 rejected the application
filed by the plaintiff Mukesh Namdeo on the ground of res judicata. This order
was challenged by respondent Nos. 1 to 6 and deceased Bhola Ram Choubey by
filing a civil suit under Section 8 of the Act, 1951 and prayed that respondent
No.1 be declared as public trust and the said lands be declared as property of
public trust. This suit was vehemently opposed by present appellants as also
deceased Peetambar by filing their written statement.
5. In the year 2006, Chhab Rani and the present appellants filed a Civil Suit
against respondent No.1 and the State of Madhya Pradesh seeking declaration
that Chhab Rani be declared as Sarvarakar, in which, specific issue no.1-
whether the lands in disputes are the private properties of respondent No.1 was
framed and by the judgment and decree dated 05/04/2010 (Ex. D/12), it was
held that respondent No.1 is a private trust. Thereafter, respondent No.1
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KUMAR PAROUHA
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preferred an appeal against this order, which got dismissed on 20/02/2017 as
abated.
6. Vide judgment and decree dated 09/09/2016, the said civil suit filed by
the respondents nos. 1 to 6 and deceased Bhola Ram Choubey under Section 8
of the Act, 1951 got dismissed. Being dissatisfied with the impugned judgment,
they preferred an appeal, which has been allowed by impugned judgment and
decree dated 24/01/2022 by learned first appellate Court. In this appeal, the
present appellants filed an application under Order 41 Rule 27 of the CPC
seeking permission to file additional evidence which has not been decided by
impugned judgment and decree dated 24/01/2022. Being aggrieved by the
impugned judgment and decree, the Appellants/defendants have preferred
present appeal.
7. Learned counsel for the appellants/defendants submits that the learned
first appellate Court has misinterpreted and misconstrued the document dated
12/03/1936 i.e. Tamleeknama (Ex. P/1). Smt. Sukhrani and Thakur Das
constructed a temple in Naag Talab, Patan and got installed an idol of Shri
Shankarji. Even if, it be held that this temple situates at Government land, its
nature as private temple cannot be changed and it cannot be coloured as public
temple. Learned first appellate Court grossly erred in holding that by registered
Tamleeknama, all the rights were reserved with Smt. Sukhrani. In fact, from the
perusal of this document and since the lands were purchased by Smt. Sukhrani
and Thakur Das, hence, both of them were appointed as Sarvarakar throughout
their lives. It is also contended that learned first appellate court also
misinterpreted and misconstrued the registered will dated 07/08/1938 &
15/08/1958 (Ex. P/2). Learned first appellate Court totally ignored to consider
the earlier order dated 29/03/1953 passed by respondent No.7 in Revenue Case
No. 226/7/52-53, in which application filed by Bhagwan Das Vaidya for
registration of respondent No.1 as public trust was already rejected vide order
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KUMAR PAROUHA
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dated 16/07/1958 (Ex. P/11) passed by Registrar, Public Trusts, Jabalpur and
also failed to appreciate that the order dated 30/07/2001 (Ex. P/1) passed by
respondent No.7 rejecting the application filed under Section 4 of the Act, 1951
by Mukesh Kumar on the ground of res judicata, which has been confirmed by
the judgment and decree dated 09/09/2016 by learned Civil Judge, Class 1,
Patan, therefore, it does not call for any interference and same ought to have
been affirmed. Learned first appellate Court further failed to appreciate that on
27/04/1984, application filed by Imrat /Amrit Lal, the father of the plaintiff
Mukesh, for registration of respondent No.1 as public trust was dismissed and
against this order, no civil suit under Section 8 of the Act, 1951 was filed,
hence, the suit filed by the plaintiffs was not maintainable. It is also asserted
that the suit was filed by the plaintiffs after lapse of more than 49 years from
1953, 44 years from 1958 and 18 years from 1984. Therefore, the trial Court
was right in dismissing the suit as time barred. The findings recorded by learned
first appellate Court are based on surmises, conjectures, presumptions and
assumptions are not warranted in law. Therefore, the findings are illegal, unjust,
and arbitrary and contrary to well settled principles and provisions of law,
therefore, the same deserves to be set aside. In support of his contentions,
learned counsel for the appellants has placed reliance on the decisions of a
Division Bench of this Court in the case of Badri Prasad Tiwari Vs. State of
M.P. & Others, 2022(1) MPLJ 420 and Shri Ram Mandir Trust Vs. State
of M.P. 560, 2011 (2) MPLJ 560 and prayed that the appeal be allowed.
8. On the other hand, learned Panel Lawyer for the State as well as learned
counsel for other respondents have opposed the contentions raised by learned
counsel for the appellants by contending that the finding recorded by learned
first appellate court is just and proper, which does not require any interference
by this Court. Hence, they prayed for dismissal of the present second appeal. In
support of their contentions they have placed reliance on judgments passed by
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KUMAR PAROUHA
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this High Court in the case of Swami Indradevanand Guru Swami Shri
Parmananadji Vs. State of Madhya Pradesh. & Others, AIR 1977 Madhya
Pradesh 102 and a Division Bench Judgment of Hon'ble the Apex Court in the
case of C.R. Jayaraman & Ors. Vs. M. Palaniappan and Others, AIR 2009
SCC 1495.
9. I have bestowed my anxious consideration on rival contentions raised by
learned counsel for the parties and perused the record and the judgments of both
the courts below.
10. This appeal has been admitted vide order dated 9.1.2023 on the following
Substantial Questions of law :-
(i) "Whether the findings recorded and direction given
by the Registrar of Public Trusts, Jabalpur in its order
dated 16.07.1958 (Ex.P/11) shall operate res judicata and
the suit filed under Section 8 of the M.P. Public Trusts
Act, 1951 by the plaintiffs is not maintainable on the
principle of res judicata and estoppels ?
(ii) Whether the orders dated 29.03.1953 and 27.04.1984
of respondent no.7 shall operate res judicata ?
(iii) Whether the learned Ist appellate Court while
allowing the appeal committed substantial error of law in
ignoring to consider that the order dated 30.07.2001
(Ex.P/21) of respondent no.7 which, gave rise to filing of
suit under Section 8 of the M.P. Public Trust Act, 1951
by the plaintiffs was not based on merits and without
making any enquiry and recording evidence as
contemplated under Section 5 of the M.P. Public Trust
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Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 6/14/2023
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Act, 1951 as held by this Hon'ble Court in the matter of
Badri Prasad Tiwari Vs. Statee of M.P. and others
reported in 2022 (1) MPLJ Page 420 and Shri Ram
Mandir Trust Vs. State of M.P. Page 560 reported in
2011 (2) MPLJ Page 560? If so, its affect?"
11. At the outset, it is necessary to see the family history of the appellants
and respondent Nos. 4 and 9 for determination of the issues involved in the
present appeal. It is most significant to mention here that respondent No.4
Mukesh Kumar Namdeo alone filed an application under Section 4 of the M.P.
Public Trust Act, 1951, hereinafter called as the Act of 1951, before respondent
No.7 Registrar, Public Trusts, for registration of respondent No.1 Murti
Shankarnji Maharaj as Public Trust.
12. As stated in para 1 of the memo of appeal, late Damdi Lal had three sons
namely Jorabal, Umrao and Gorelal. Smt. Sukhrani was wife of late Umrao and
both of them had no issue. Late Jorabal had two sons namely, Thakur Das /
Thakur Prasad and Kashi Ram. Appellants 2 to 7 and late Suraj Prasad
(deceased - appellant No.1) and late Peetambar @ Babu Lal (deceased
respondent No.9) are sons of Thakur Das / Thakur Prasad. Kashiram had three
sons namely Bhagwan Das Vaidya, Bhagwat Prasad and Amrit Lal / Imrat Lal.
It is significant to mention here that respondent No.4 Mukesh Kumar Namdeo
who alone had filed an application under Section 4 of the Act, 1951 before
respondent No.7, is son of Amrit Lal.
13. In order to answer the substantial questions of law nos. 1 and 2, it is
necessary to have a look to the order dated 30/07/2001 (Ex. P/21/ Ex. D/9) of
respondent no.9 as also Ex. D/12, the judgment and decree dated 05/04/2014
passed by the Civil Judge Class I, Patan. In order to answer both the said
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KUMAR PAROUHA
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substantial questions of law, order dated 16/07/1958 (Ex. P/11) is also very
material and necessary.
14. Question of res judicata is important to be decided in this case. It is
evident from the evidence available on record that respondent no. 7 Registrar,
Public Trusts vide order dated 29.3.1953 passed in Revenue Case No.226/7/52-
53 respondent no.1 was held to be a private trust. Similarly, the application filed
by Bhagwan Das Vaidya for registration of respondent no. 1 as public trust was
already rejected vide order dated 16.7.1958 (Ex.P/11) by the respondent no. 7
Registrar, Public Trusts, Jabalpur. Similarly, the application filed by Amrit Lal /
Imrat Lal, the father of the plaintiff Mukesh, was also dismissed in default on
27.4.1984. It is also evident that the Civil Judge Class-I, Patan in Civil Suit
No.24-A/2006 vide its judgment dated 5.4.2010 specific issue no.1 was framed
and it was held that respondent no.1 is a private trust. It is also not out of place
to mention here that the appeal preferred against the aforesaid order by
respondent no. 1 was also dismissed. Thus, the findings recorded in Civil Suit
No.24-A/2006 shall operate res judicata. Further, Ex. P/11 and Ex.D/1 are also
very material and necessary. This clearly shows that Shri J.P. Mishra (IAS),
Registrar of Public Trust and the Additional Collector, Jabalpur in case no.27-
Rev. Appeal no.124 of 1957-58, applicant Thakur Das Vs. Non-applicant
Bhagwan Das, in which order dated 16/07/1958 was passed. Para 6 of the order
which is reproduced herein after is very relevant :
"I therefore order that the application filed by Shri
Bhagwan Das on 5th August, 1957 be rejected and he be
directed to go to Civil Court to seek declaration regarding
the nature of the Trust."
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Signed by: JITENDRA
KUMAR PAROUHA
Signing time: 6/14/2023
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It is significant to mention here that this Bhagwan Das was elder brother
of the father of the respondent no. 4 Mukesh Kumar Namdeo. No civil suit in
spite of such order was filed by Bhagwan Das.
15. The Civil Suit bearing C.S. No.24-A/2006 was filed in the Court of Civil
Judge Class I, Patan, District Jabalpur, in which respondent no.6 was defendant
no.1 and State of M.P. was defendant no.2. After framing necessary issues and
recording evidence, the suit was decided by the judgment and decree dated
05/04/2010. In this suit, issue no.1 was framed as under:
" या मौजा पाटन ि थत खसरा मांक 271, 273, 275 और 437/1 ी शंकर जी
नाग तालाब के िनजी यास की संपि है ?"
In this civil suit, both the parties contested the suit and adduced evidence.
By Judgment and decree dated 05/04/2010 (Ex, D/12), the learned Civil Court
held that respondent no.1 is a private trust. This judgment and decree dated
05/04/2010 has not been reversed and hence, it attained finality.
16. In view of the above, it is very much clear that in the earlier round of
litigation, it has been held that the respondent no.1 is a private trust and hence
the same cannot be again agitated else the matter shall be endless. Learned First
Appellate Court has failed to appreciate the order dated 29-03-1953 passed by
the trial Court, whereby the trust in question was declared as private trust and
the objection raised by Bhagwan Das was rejected. When the matter was
referred to S.D.O. Patan and an appeal was decided by the Registrar, Public
Trusts, Jabalpur vide its order dated 16.7.1958 and it has been held that the
parties should go to agitate their grievance before the Civil court. The trust in
question as has been held private trust in the year 1953 and later on by the
Registrar, Public Trust vide its order dated 16.7.1958 and the said order has
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KUMAR PAROUHA
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become final and was not challenged by the aggrieved parties as they have
failed to file civil suit questioning the order of the Registrar, Public Trust. This
vital issue has not been taken care by the first appellate court. Therefore, the
findings recorded by the first appellate court are not based on records which
deserve to be interfered.
17. It is axiomatic from the plaint that except plaintiff no.4 Mukesh Kumar
Namdeo, other plaintiffs were not party before the respondent no.7, in whose
Court, respondent no.4 filed an application under Section 4 of the said Act for
registration of respondent no.1 as public trust. Therefore, all other persons, who
were not party before respondent no.7 had no locus standi to file civil suit under
Section 8 of the Act, 1951 and this objection was specifically raised by the
appellants in their written statement. On the basis of such objection, the learned
trial Court had also framed issue no. 4 as under :
" या वादे को दावा ' तुत करने का अिधकार नहीं है ?"
By the judgment dated 09/09/2016, the learned trial Court answered this
issue no.4 and held that the plaintiffs had no right to file the suit. These findings
are elaborately recorded in paragraphs no. 21 to 26 of the judgment of the
learned trial Court. Thus, it was very specifically held by the learned trial Court
that the plaintiffs have no locus standi to file suit.
18. From the perusal of the impugned judgment dated 24/01/2022 of the
learned 1st appellate Court, it is very much clear that the finding recorded by the
learned trial Court on issue no.4 has not been reversed. Hence, the suit filed by
the plaintiffs was not maintainable.
19. From the perusal of the plaint, it is found that the plaintiffs had not come
with clean hands and had suppressed the material facts about previous round of
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KUMAR PAROUHA
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litigation and the proceedings for registration of respondent no.1 as public Trust
and their rejection. Thus, the plaintiffs are guilty of suppression of material and
relevant facts. It is well settled that a person, who has concealed the real facts in
the Court and has not come in the Court with clean hands, is not entitled to any
relief. Kindly seen AIR 2011 SCC 2353 (para 16) Abhyuday Sanstha Vs.
Union of India and Others.
In view of the law laid down by the Hon'ble Supreme Court, since the
plaintiffs have concealed the real facts with mala fide intention and have not
come in the court with clean hands, hence, their suit is liable to be dismissed on
this ground alone.
20. Regarding substantial question of law no. 3.
21. Section 4 of the M.P. Public Trusts Act, 1951 provides for Registration of
Public Trust which is quoted as under :-
4. Registration of public trusts. - (1) Within three months from the date
on which this section comes into force in any area or from the date on which a
public trust is created, whichever is later, the working trustee of every public
trust shall, apply to the Registrar having jurisdiction for the registration of the
public trust.
(2) Such application shall be accompanied by such fees, if any, not
exceeding five rupees as may be prescribed.
(3) The application shall be in such form as may be prescribed and shall
among other things contain the following particulars, namely,-
(i) the origin, nature and object of the public trust;
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(ii) the place where the principal office or the principal place of
business of the public trust is situate;
(iii) the names and addresses of the working trustee and the
manager;
(iv) the mode of succession to the office of the trustees;
(v) the list of the movable and immovable trust property in the
[State] and such description and particulars as may be sufficient
for the identification thereof;
(vi) the approximate value of the movable and immovable
property;
(vii) the income derived from movable and immovable property
and from any other source, if any, based on the gross annual
income during the three years immediately preceding the date
on which the application is made or of the period which has
lapsed since the creation of trust whichever period is shorter
and in the case of a newly created public trust the estimated
income from such sources;
(viii) amount of the average annual expenditure in connection
with such public trust estimated on the expenditure incurred
within the period to which the particulars under clause (vi)
relate;
(ix) the address to which any communication to the working
trustee or manager in connection with the public trust may be
sent; and
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(x) such other particulars as may be prescribed:
Provided that the rules may provide that in the case of any or all public
trusts it shall not be necessary to give the particulars of the trust property of
such value and such kind as may be specified therein.
(xi) No Registrar shall proceed with any application for the
registration of a public trust in respect of which an application
for registration has been filed previously before any other
Registrar and the Registrar before whom the application was
filed first shall decide which Registrar shall have jurisdiction to
register the public trust.
(5) Any appeal against the order of the Registrar under sub-section (4)
may be filed within thirty days of the order before such officer as the State
Government may, by notification, appoint, and subject to the decision in such
appeal the order of the Registrar under sub-section (4) shall be final.
(6) Every application made under sub-section (1) shall be signed and
verified in accordance with the manner, laid down in the Code of Civil
Procedure, 1908 (V of 1908), for signing and verifying plaints. It shall be
accompanied by a copy of an instrument of trust if such instrument had been
executed and in existence and where the trust property includes immovable
property, about which record is kept, a copy of the entries relating to such
property in such record of rights.
22. In Section 5 of the said Act, 1951 provisions for Enquiry For Registration
are provided. Section 5 is reproduced as under :-
5. Inquiry for registration. - (1) On receipt of an application under
Section 4 or upon, an application made by any person having interest in a public
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trust or on his own motion the Registrar shall make an inquiry in the prescribed
manner for the purpose of ascertaining, -
(i) whether the trust is a public trust;
(ii) whether any property is the property of such trust;
(iii) whether the whole or any substantial portion of the subject-
matter of the trust is situated within his jurisdiction;
(iv) the names and the addresses of the trustees and the manager
of such trust;
(v) the mode of succession to the office of the trustee of such
trust;
(vi) the origin, nature and object of such trust;
(vii) the amount of gross average annual income and the
expenditure of such trust; and
(viii) the correctness or otherwise of any other particulars
furnished under sub-section (3) of Section 4.
(2) The Registrar shall give in the prescribed manner public notice of the
enquiry proposed to be made under sub-section (1) and invite all persons
interested in the public trust under inquiry to prefer objections, if any, in respect
of such trust.
23. Section 6 of the said Act, 1951 provides recording of Findings of the
Registrar. Section 7 of the said Act provides the Registrar to make entries in the
Register. Section 8 of the said Act provides for filing of Civil Suit against the
findings of Registrar.
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6. Findings of the Registrar. - On completion of the inquiry
provided for under Section 5, the Registrar shall record his findings with
reasons therefor as to the matters mentioned in the said section
24. Section 28 of the said Act provides officers holding enquiries to have
powers of Civil Court which is reproduced as under :-
28. Officers holding inquiries to have the powers of Civil Court. - In
holding inquiries under this Act, the Registrar shall have the same powers as are
vested in Courts in respect of the following matters, under the Code of Civil
Procedure, 1908 (V of 1908), in trying a suit,-
(a) proof of facts by affidavits;
(b) summoning and enforcing attendance of any person and
examining him on oath;
(c) compelling the production of documents;
(d) issuing of commissions.
25. Section 29 of the said Act provides inquiries to be judicial enquiries and
Section 30 of the said Act provides application for civil procedure code to the
proceedings under this Act. Sections 29 and 30 are reproduced as under :-
29. Inquiry to be judicial inquiries. - All inquiries under this Act shall
be deemed to be judicial proceedings within the meaning of Sections 193, 219
and 228 of the Indian Penal Code.
30. Civil Procedure Code to apply to proceedings under this Act. -
Save in so far as they may be inconsistent with anything contained in this Act,
the provisions of the Code of Civil Procedure, 1908 (V of 1908), shall apply to
all proceedings before the Court in this Act.
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26. Section 4 of the Act, 1951, provides for filing of application for
registration of trust. Sub Section (iv) of Section 4 of the Act 1951 bars the
Registrar to proceed in an application for registration of Public Trust in respect
of which an application for registration has been filed previously before any
other Registrar and the Registrar before who the application was filed first was
decided, which Registrar shall the jurisdiction to register the Public Trust. This
Sub Section (4) is produced as under :
4.4. "No registrar shall proceed with any application for the
registration of public trust in respect of which the application for
registration has been filed previously before any other registrar and the
Registrar before whom the application was filed 1st shall decide, which
registrar shall have jurisdiction to register the public trust."
In view of above, since earlier applications filed for registration of
respondent no.1 as Public Trust have been rejected, therefore, in view of Section
4 of the Act, 1951, subsequent application filed by the respondent no.4 before
respondent no.7 cannot be entertained and decided. Hence, the application filed
by respondent no.4 before respondent no.7 was barred under Sub Section 4 of
Section 4 of the Act of 1951 and, hence, the suit filed by the plaintiffs was also
barred. This has also been considered by learned trial Court in para 31 of its
judgment dated 09/09/2016. However, this has not been considered and dealt
with by learned 1st appellate Court.
27. From perusal of the findings recorded by the 1st appellate Court, it is very
much clear that while reversing the findings of the learned trial Court, the
learned 1 st appellate Court has not considered the reasoning's recorded by the
learned trial Court. Thus, the findings of the learned 1st appellate Court are
perverse and based on no evidence much less on inadmissible evidence and
without discussing the findings of the learned trial Court. Hence, the findings
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recorded by the first appellate court in reversing the judgment and decree of the
trial Court are incorrect and contrary to the facts available on record.
28. Section 5 of the Act of 1951 provides enquiry for registration. From the
perusal of the order dated 30/07/2001 (Ex. P/21/D-9), it is very much clear that
no enquiry was made as contemplated under Section 5 of the Act, 1951 and the
application was rejected on the principle of res judicata. In this respect, the law
laid down by the Hon'ble High Court in the matter reported in 2022(1) MPLJ
Page 420 and 2011(2) MPLJ Page 560 is relevant.
29. From the perusal of the findings of the learned trial Court, it is very much
clear that the suit was also dismissed as barred by limitation. Though, the
learned 1st appellate Court has reversed these findings on the basis of surmises
and conjectures. Although, no substantial question of law is framed regarding
the limitation. However, it is respectfully submitted that as per provisions of
Section 3 of the Indian Limitation Act, 1963, which is reproduced as under the
Court has to see whether the suit is within time or no.
"Bar of limitation: (1) Subject to the provisions contained in
Section 4 to 24 (inclusive) every suit instituted, appeal
preferred and application made after the prescribed period shall
be dismissed although limitation has not been set up as
defense."
30. In view of the above, even if the defense of limitation has not been set up,
the Court is bound to decide whether the suit by the plaintiffs was filed was
beyond the period of limitation. In fact, the objection regarding limitation was
raised and the learned trial Court had framed a specific issue no.8 regarding the
limitation and after discussing in details in paragraphs 30 and 31, it was held
that the suit is hopelessly time barred.
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31. The Hon'ble Supreme Court in the matter of Nohar Lal Varma Vs.
District Cooperative Central Bank Limited, Jagdalpur reported in AIR
2009 SC Page 664 in paras 27, 28 and 29 very specifically held that if the suit
is not within the period of limitation; the same cannot be decided on merits. The
limitation goes to the root of the matter. If a suit, appeal or application is barred
by limitation, the Court or an adjudicating authority has no jurisdiction, power
or authority to entertain such suit, appeal or application and to decide it on
merits. Hence, the learned trial Court rightly dismissed the suit as having been
barred by limitation.
32. Further, on perusal of Section 5 of the said Act, 1951 it is found that it
envisages enquiry for the purpose of registration of a trust. For this purpose, the
Registrar of Public Trusts is obliged to make an enquiry for the purpose of
ascertaining
(i) whether the trust is a public trust;
(ii) whether any property is the property of such trust;
(iii) whether the whole or any substantial portion of the subject-
matter of the trust is situated within his jurisdiction;
(iv) the names and the addresses of the trustees and the manager
of such trust;
(v) the mode of succession to the office of the trustee of such
trust;
(vi) the origin, nature and object of such trust;
(vii) the amount of gross average annual income and the
expenditure of such trust; and
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(viii) the correctness or otherwise of any other particulars
furnished under sub-section (3) of Section 4.
But, on plain reading of the plaint it is found that no such requirements
are pleaded in the plaint by the plaintiffs.
33. In the matter of Shri Ram Mandir Trust (supra), this Court has very
specifically held that enquiry under Section 5 means enquiry and recording the
evidence is very much necessary so that aggrieved party is having a right to file
civil suit against the findings of the Registrar under Section 8 of the said Act of
1951. Similar view has also been taken by the Division Bench of this Court in
the case of Badri Prasad Tiwari (supra).
34. On perusal of the order dated 30.07.2001 (Ex.P/21), it is very much clear
that the respondent No.7 has neither made any enquiry nor recorded any
evidence and has not decided the application on merits but the application was
rejected on the ground of res judicata. Hence, the First appellate Court totally
failed to consider the provision of Sections 4 to 7 as also Sections 28, 29 and 30
of the Act of 1951 and decided the appeal on merits rather to have remanded the
matter to respondent no.7 for deciding the application filed under section 4 of
the said Act on merits after due enquiry and recording the evidence etc. Thus,
the impugned judgment and decree dated 24.01.2022 of the learned First
Appellate Court is without jurisdiction. It is also very much clear that the
appellants filed an application under Order 41 Rule 27 of the Code of Civil
Procedure. However, no reply was filed to this application by the plaintiffs.
The learned First Appellate Court has totally ignored to consider that
application. Hence, the learned First Appellate Court committed an error of law
in not considering and deciding this application which has resulted into failure
of justice to the appellants. According to Tamleeknama, only the family of
Thakur Das can be sarvarakar and trustees and no other person can be appointed
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as trustee or sarvarakar. It is well settled provision of law that if the law
provides to do a thing in accordance with law, the same ought to have been
done accordingly. However, the learned First Appellate Court has gone contrary
to this principle of law. The oral and documentary evidence as also law
involving in the case have been misread and misinterpreted. The findings are
perverse and based on no evidence much less on inadmissible evidence. The
findings are illegal, unjust, and arbitrary; and contrary to the well settled
principles and provisions of law and deserve to be set aside. Accordingly, the
substantial question of law no. 3 is answered.
35. From the aforesaid discussions, I find much force on the submissions
made by learned counsel for the appellants. The judgments on which reliance
have been placed by the respondents do not help them looking to the peculiar
facts and circumstances of the present case which are different from the facts of
the cases cited by the respondents.
36. Accordingly, this second appeal is allowed and the impugned judgment
and decree dated 24.1.2022 passed in RCA No.190/2016 by the first lower
appellate court is hereby set-aside, meaning thereby, the judgment and decree
dated 9.9.2016 passed in regular civil suit no.77A/15 by the trial court is hereby
affirmed. Looking to the facts and circumstances of the case, there is no order
as to costs. Decree be drawn accordingly.
37. A copy of this judgment along with record be sent back to the trial court
for its compliance.
(ARUN KUMAR SHARMA)
JUDGE
JP/-
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