Rajasthan High Court - Jodhpur
Shri Eklingji Trust vs Shri Mahendra Singhji ... on 21 September, 2024
Author: Rekha Borana
Bench: Rekha Borana
[2024:RJ-JD:39327]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Writ Petition No. 12728/2024
Shri Eklingji Trust, Through The Member Of The Board Of
Trustees And Secretary
1. Maharaj Karan Singhji Son Of Late Maharaj Jagat Singhji R/o
Karjali House, Sardarpura, Udaipur (Rajasthan) (Dead) Through
Shri Anuvikram Singh Son Of Shri Harish Chandra Ji (Trustee)
492, Karni Niwas, Karjali House, Sardarpura, Udaipur
(Rajasthan)
2. Shri Narendra Singhji Son Of Maharaj Pratap Singhji R/o
Titardi, Tehsil - Girwa, Udaipur (Rajasthan) (Dead) Through Shri
Lakshyaraj Singh Ji Mewar Son Of Shri Arvind Singh Ji Mewar,
R/o City Palace, Udaipur (Rajasthan)
3. Shri A. Subramanium, Secretary Of The Trust R/o Palace,
Udaipur (Rajasthan) (Dead) Through Shri Sudhir Mutha Son Of
Laxminarayan Ji Mutha (Secretary), R/o C-403, Peace Park, New
Vidya Nagar, Hiran Magri, Sector No. 4, Udaipur (Rajasthan).
4.maharaj Arvind Singhji S/o Late Maharana Bhagwat Singh Ji
Mewar, Aged About 74 Years, Resident Of The Palace, Udaipur
(Rajasthan).
5. Shri Tuslinath Ji Dhabai S/o Late Jagnath Ji Dhabai, R/o
Jagdish Chowk Udaipur (Rajasthan) (Dead) Through Smt.
Bhargavi Kumari Mewar (Trustee) Resident Of Anokhi Farm,
Jagatpura.
6. Smt. Vijayraj Kumariji Mewar W/o Shri Arvind Singh Mewar
Aged About 76 Years, Resident Of The Palace, Udaipur
(Rajasthan).
7. Shri Yatendra Mohan Pratap Mishra, Resident Of Rajsadan
Ayodhya, Faizabad, (UP.).
----Petitioner
Versus
Shri Mahendra Singhji S/o Late Maharana Bhagwat Singh Ji
Mewar, Resident Of Samore Bag Palace, Udaipur (Raj.).
----Respondent
For Petitioner(s) : Mr. Manish Shishodia, Sr. Advocate
with Mr. Mohd. Aslam Naushad
For Respondent(s) : Mr. Harshit Bhurani
HON'BLE MS. JUSTICE REKHA BORANA
Order
21/09/2024
1. The present writ petition has been preferred against the
order dated 22.07.2024 (Annex.P/18) passed by the Additional
[2024:RJ-JD:39327] (2 of 7) [CW-12728/2024]
District Judge No.2, Udaipur in Original Suit No.123/2011 (CIS
No.1663/2014) whereby the application under Section 10 read
with Section 151, CPC as preferred on behalf of the defendants,
has been rejected.
2. Vide the application under Section 10, CPC it was prayed on
behalf of the defendants that three first appeals (S.B.Civil First
Appeals No.420/2020, 547/2020 & 551/2020) against the
judgment and decree dated 30.06.2020 in a suit for partition as
preferred by present plaintiff Mahendra Singh remains pending
before the High Court. In the said suit for partition, the
entitlement of the present plaintiff based on principle of
Primogeniture was also under consideration and the said suit was
partly decreed in favour of the plaintiff. In the first appeal against
the said judgment and decree, vide interim order dated
18.06.2022, the effect and operation of the judgment and decree
dated 30.06.2020 was stayed and the first appeals remain
pending as of date, therefore, unless and until the said first
appeals are decided, the present suit deserves to be stayed.
3. Second ground raised in the application under Section 10,
CPC was that earlier vide judgment and decree dated 15.02.1994,
the Trust in question was declared to be a 'Public Trust' and an
appeal against the said judgment and decree being S.B. Civil First
Appeal No.56/1994, also remain pending adjudication before the
High Court. Therefore also, till the said appeal is decided and the
nature of the Trust is finally determined, the present suit deserves
to be stayed as the issue in said first appeal and the present suit
is substantially the same.
[2024:RJ-JD:39327] (3 of 7) [CW-12728/2024]
4. It was further submitted in the application that in the present
suit, an application was preferred on behalf of the plaintiff himself
that the suit proceedings be stayed till the decision of S.B. Civil
First Appeal No.56/1994 and it is on the said application of the
plaintiff himself that the suit proceedings were directed to be
stayed vide order dated 22.04.1995 and the said order remained
in operation till 06.05.2017. Therefore, now, without any
application by any of the parties for recalling of the order dated
22.04.1995, proceeding further in the present suit proceedings is
totally uncalled for.
5. The application as preferred under Section 10, CPC has been
rejected by the learned Trial Court with the specific observation
that the subject matter in the suit for partition had nothing to do
with the subject matter of the present suit. Shri Eklingji Trust
which is a subject matter of the present suit, was not a subject
matter in the suit for partition qua which three first appeals are
pending. Therefore, the subject matter of both the suits and
issues involved in both of them being totally different, the present
suit does not deserve to be stayed.
6. So far as S.B. Civil First Appeal No.56/1994 is concerned, the
learned Trial Court observed that both the parties were ad idem on
the fact of the Trust in question being a private Trust. Therefore,
as of date, the issue of nature of the Trust is not in dispute and
further, the decision of the first appeal, whatsoever, would come
into effect at that point of time whereas the Court is required to
consider the facts and the circumstances prevailing prior to filing
of the suit and not the subsequent facts. The Court further
observed that even otherwise, there was no application under
[2024:RJ-JD:39327] (4 of 7) [CW-12728/2024]
Order VII Rule 11, CPC preferred on behalf of the defendants,
neither was any objection raised in the written statement
regarding the jurisdiction of the Court and hence, the suit was
held to be maintainable.
The Court further observed that even otherwise, in S.B. Civil
First Appeal No.56/1994, neither the parties are common nor any
dispute pertaining to the Managing Trustee was raised in the said
appeal, therefore, the parties as well as the subject matter of the
first appeal and the present suit being totally different, the Court
declined to stay the proceedings of the present suit.
7. Before this Court, at the very inception, learned Senior
Counsel appearing for the petitioners submitted that the learned
Trial Court acted in excess of jurisdiction as the suit in question
itself was not maintainable. Learned Senior Counsel submitted
that as decided vide judgment and decree dated 15.02.1994 in
Suit No.09/1980, the Trust in question is a Public Trust' and
hence, the suit in question, for the reliefs as prayed for, would not
be maintainable before the Civil Court in terms of Sections 38 &
74 of the Rajasthan Public Trust Act, 1959 (for short 'the Act of
1959').
8. On said submission been made by learned Senior Counsel
appearing for the petitioners, the Court put a specific query to the
counsel as to whether he would press the said ground, and in
response, learned counsel specifically emphasised to press the
said ground. The Court even directed the Senior Counsel to take a
definite stand whether the petitioners treats the Trust in question
to be a 'Public Trust' or a 'Private Trust', to which, learned Senior
Counsel, in unequivocal terms, and after completing his
[2024:RJ-JD:39327] (5 of 7) [CW-12728/2024]
instructions, made a specific submission that the Trust in question
is a 'Public Trust' and hence, the suit was not maintainable before
the Civil Court.
9. What is evident on record is that a challenge to the decision
to the effect that the Trust in question is a 'Public Trust', was made
by the petitioners themselves in S.B. Civil First Appeal
No.56/1994. Now, when a specific stand on behalf of the
petitioners has been taken before this Court that the Trust in
question is a 'Public Trust', the jurisdiction of the Civil Court would
clearly be barred in terms of provisions of the Act of 1959.
Further, as is evident on record, S.B. Civil First Appeal No.56/1994
had been preferred against the judgment and decree dated
15.02.1994 whereby the Trust in question was declared to be a
'Public Trust'. Admittedly, there is no interim order operating in
said first appeal. Meaning thereby, as of date, the judgment and
decree dated 15.02.1994 whereby the Trust was declared to be a
'Public Trust', holds the field. Therefore, when vide judgment and
decree dated 15.02.1994 the Trust has been declared to be a
'Public Trust' and the said order is in effect as of date, the suit in
question even otherwise, could not have been maintained before
the Civil Court in view of the ratio laid down by the Co-ordinate
Bench of this Court in Kaushal Kishore Narnoli Vs. Gopal
Public Trust and Others, 2016 (4) RLW 3250 (Raj.) and
Mohan Singh Vs. Civil Judge (JD) and Judicial Magistrate,
2014 (3) WLN 85 (Raj.). Therein, the Court held that in issue
pertaining to property of the Trust being utilised for the purpose
other than for the objects of the Trust, or any issues relating to
the management and administration of the Trust property, are to
[2024:RJ-JD:39327] (6 of 7) [CW-12728/2024]
be governed by Section 38 of the Act of 1959. The Court in
Mohan Singh's case (supra) held that, a suit for permanent
injunction laid by the plaintiffs without resorting to Section 38 of
the Act of 1959 and without the permission granted by the
Assistant Commissioner, Devasthan for the purpose, was barred
under Section 73 of the Act of 1959.
10. In view of specific submission made by the learned Senior
Counsel for the petitioners to the effect that the Trust in question
is a 'Public Trust' and in view of the fact that the judgment and
decree dated 15.02.1994 remains in effect till date, this Court is of
the clear opinion that even if no objection regarding
maintainability of the suit before a Civil Court has been raised or
no application under Order VII Rule 11, CPC has been preferred by
the defendants before the learned Trial Court, this Court is within
its jurisdiction to dismiss the suit being barred in terms of law.
11. So far as learned counsel for the respondent plaintiff is
concerned, he specifically submits that if the defendants
petitioners are of the clear stand and specific submission that the
Trust in question is a 'Public Trust', the suit in question be
dismissed as not maintainable and the plaintiff be granted the
liberty to approach the competent forum.
12. In view of the above observations and in view of the specific
submission made by learned Senior Counsel for the petitioners,
this Court is of the clear opinion that the suit in question would
not be maintainable before a Civil Court for the reliefs, as prayed
for, as the same pertain to a 'Public Trust' and would be governed
by the Act of 1959.
[2024:RJ-JD:39327] (7 of 7) [CW-12728/2024]
13. As a consequence, Civil Original Suit No.123/2011 (CIS
No.1663/2014) as pending before the Additional District Judge
No.2, Udaipur (Shri Mahendra Singh Mewar Vs. Shri Eklingi Trust &
Ors.) is hereby, dismissed as not maintainable. Learned Trial
Court shall proceed on to pass a decree thereupon.
It is, however, made clear that the plaintiff would be free to
exercise his right in terms of the Act of 1959 and move an
application therein, within a period of thirty days from the receipt
of the certified copy of this order.
14. With the above observations, the present writ petition is
disposed of.
15. Stay petition and the pending applications, if any, also stand
disposed of.
(REKHA BORANA),J
237-T.Singh/-
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