Smt. Yogeshwari (Since Deceased) vs The Assistant Commissioner ...
2021 Latest Caselaw 11091 Raj

HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR S.B. Civil Second Appeal No. 40/2019

1. Smt. Yogeshwari (Since Deceased), W/o Late Shri Murlidhar Sharma

2. Subhodh Narayan S/o Late Shri Murlidhar Sharma, Aged About 79 Years, B/c Sharma, R/o Ambaji Road, Abu Road, District Sirohi.

3. Jagdish Sharma S/o Late Shri Murlidhar Sharma, Aged About 75 Years, B/c Sharma, R/o Ambaji Road, Abu Road, District Sirohi.

4. Smt. Sushila Devi W/o Prem Narayan Sharma, Aged About 81 Years, B/c Sharma, R/o Ambaji Road, Abu Road, District Sirohi.

----Appellants Versus

1. The Assistant Commissioner Devasthan Dept., Govt. Of Raj., Jodhpur.

2. The Commissioner, Devsthan Depratment, Govt. Of Raj.

Udaipur.

3. The Secretary, Secretariat, Devsthan Department, Govt.

Of Rajasthan, Jaipur (Raj.)

4. The State Of Raj., Through The District Collector, Sirohi

5. Smt. Kanta W/o Late Shri Harishankar Sharma, R/o Ambaji Road, Abu Road , District Sirohi (Raj.)

6. Shri Manmohan S/o Late Shri Harishankar Sharma, R/o Ambaji Road, Abu Road , District Sirohi (Raj.)

7. Shri Brij Mohan S/o Late Shri Harishankar Sharma, R/o Ambaji Road, Abu Road , District Sirohi (Raj.)

----Respondents

For Appellant(s) : Mr. Sajjan Singh.

Mr. Prashant Tatia.

For Respondent(s)         :



           HON'BLE MR. JUSTICE ARUN BHANSALI

                                    Order




                                              (2 of 5)                [CSA-40/2019]


19/07/2021

This appeal is directed against the judgment & decree dated

25.10.2018 passed by Additional District Judge No.2, Abu Road,

whereby the judgment & decree dated 02.01.2014 passed by Civil

Judge (Jr. Division), Abu Road has been affirmed and the appeal

filed by the appellants has been dismissed.

The suit for declaration was filed by the plaintiffs-appellants,

inter alia, seeking following reliefs:-

"15- vr% Jheku~ U;k;ky; ls oknhx.k dh fuEu izkFkZuk gS%& 1- ?kksf"kr fd;k tkos fd%& A. fd izfroknh la[;k&,d lgk;d vk;qDr dk mDr vkns'k fnukad 13&10&2000 mDr iV~Vk uEcj&100 dh tk;nkn lkoZtfud izU;kl ?kksf"kr djus ckcr~ dk voS/k o izHkko'kwU; gS ftlls oknhx.k o izfroknhx.k la[;k& 05 ls 07 ca/kudrkZ ugha gSA B. fd mDr iV~Vk la[;k&100 dh tk;nkn ij dksbZ eafnj fLFkr ugha gSA C. fd nkok [kpkZ o vU; mfpr vuqrks"k tks oknhx.k izkIr djus ds vf/kdkjh gks fnyok;k tkosA mijksDr vuqlkj oknhx.k ds gd esa o izfroknh la[;k&01 ls 04 ds fo:) fMØh ikfjr dh tkosA"

In the suit, the plaintiffs set out grounds questioning the

validity of the orders in various paragraphs.

The suit was contested by the defendants No. 1 to 4

alongwith additional pleas regarding non-maintainabiliy of the suit

in view of provisions of Section 20 of the Rajasthan Public Trust

Act, 1959 ('the Act').

Based on pleadings, trial court framed six issues. While issue

No.1 and 2 were deleted exercising powers under Order XIV, Rule

5(2) CPC during the course of judgment and rest of the issues

while decided against the plaintiffs. On issue No.5, which

pertained to the additional pleas raised pertaining to

maintainability of the suit, the trial court, inter alia, came to the

(3 of 5) [CSA-40/2019]

conclusion that as the plaintiffs did not file appeal under Section

20 of the Act and suit under Section 22 of the Act was not

maintainable and as the plaintiffs claimed that the disputed

property was not the property of the Trust and was their personal

property, a suit for declaration of title should have been filed and

as the suit has been filed seeking declaration against the orders

passed by the Assistant Commissioner, Devsthan, against which,

no appeal was filed, the suit was barred. Based on its finding on

issues No. 3 to 6, the suit was dismissed.

Feeling aggrieved, the appellants filed first appeal. The first

appellate court, after hearing the parties came to the conclusion

that deletion of issue No.1 and 2 was justified and upheld the

finding on rest of the issues and consequently dismissed the

appeal.

Learned counsel for the appellants, attempted to make

submissions that the suit questioning the validity of the orders

passed by the Assistant Commissioner, Devsthan was

maintainable, however, submitted that as the courts below came

to the conclusion that the suit was not maintainable, they should

have not recorded any finding on merits of the dispute and should

have directed the plaintiffs to take appropriate proceedings in

accordance with law. The recording of findings on merit alongwith

holding that the suit was not maintainable has resulted in grave

prejudice to the appellants.

Reliance has been placed on Bijoy Krishna Maity v. Pulin

Behari Khanra & Ors.: 1996(8) Scale (SP) 32.

I have considered the submissions made by learned counsel

for the appellant.

(4 of 5) [CSA-40/2019]

The findings recorded by the two courts below regarding

non-maintainability of the suit while deciding issue No.5 is in

consonance with the settled law, inasmuch as, once the appellants

were seeking to question the validity of the order passed by the

Assistant Commissioner, Devsthan, the remedy provided under

Section 20 of the Act should have been availed by the appellants

as the jurisdiction of the Civil Court in this regard is barred under

Section 73 of the Act.

The appellants, besides questioning the validity of the orders

attempted to set up a case that they have the right in the suit

property and that the indication of the property as Trust property

by the Assistant Commissioner, Devsthan was not justified.

However, no such declaration regarding the property being private

property of the appellants was sought in the suit, as quoted

hereinbefore.

In view thereof, the findings of the two courts below

regarding non-maintainability of the suit, cannot be faulted.

So far as the submissions made by learned counsel for the

appellants regarding the two courts below, returning findings on

merits of the dispute despite coming to the conclusion regarding

non-maintainability of the suit is concerned, it is true that

wherever a court comes to a conclusion that either it lacks

jurisdiction or the suit is barred under some provision, unless even

for reaching to the said conclusion, findings on certain issues are

necessary, it should refrain from deciding the controversy on

merits.

This Court in Gheesu Das v. Narsingh Kansara & Ors.:

1999(3) WLC(Raj.) 586, in a case where suit was filed by person

(5 of 5) [CSA-40/2019]

having interest adverse to the Trust and claiming such property to

be owned by him, held that such person could file a regular civil

suit under Section 9 of CPC and non-maintainability of the suit

should not be taken as a bar to entertainment of a regular civil

suit subject to the General Law of the land.

In view of the above discussion, as this Court has come to

the conclusion that the findings recorded by the two courts below

regarding maintainability of the suit as filed, cannot be faulted,

the present second appeal has no substance, the same is,

therefore, dismissed.

However, as observed in the case of Gheesu Das (supra), it is

clarified that plaintiffs could file a regular civil suit under Section 9

of CPC and non-maintainability of the present suit shall not be

taken as bar to entertainment of their regular suit subject to the

General Law of land, which aspect as and when arises, the trial

court shall be free to decide in accordance with law.

(ARUN BHANSALI),J

19-PKS/-

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