TRUSTEES OF HARESHWER MAHADEV TRUST Vs. TRUSTEES OF JASVANTSINHJI AUDICHYA BRAHMAN BOARDING VIDHYARTHI BHUVAN

JUDGEMENT

(1.) This second appeal is filed by trustees of Hareshwar Mahadev Trust, a public trust registered under the Bombay Public Trusts Act against whom suit filed by the respondent-trustees on behalf of another Public Trust known as Shri Jaswantsinhji Audichya Brahman Boarding Vidyarthi Bhavan and registered under Bombay Public Trusts Act has been decreed by both the Courts below.

(2.) Plaintiffs have filed present suit in the Court of Civil Judge (Junior Division) for declaration of their title to land comprised in Survey No. 60 at C.T No. 63 and removal of encroachment made on the land by constructing a lavatory and cesspool and also for permanent prohibitory injunction. The assertion of the plaintiffs in the plaint was that the property in question was a grant from the State by Lekh No. 101, which is Exh. 116, and the property in question was entered in the register of public trust as property of the plaintiff-trust after holding an enquiry under S.19 of the Bombay Public Trusts Act (hereinafter called the Act). The entry relating to the property in question under S.19 of the Act is Exh. 117 on record. The defendants have denied the title of plaintiffs and asserted title in themselves primarily as well as by adverse possession in the alternative. In the face of these pleadings, issue No. 3 was framed, "Whether the plaintiff proves that the suit land is of the ownership of plaintiff-trust ?" The trial Court found after taking into consideration the entry in the register made under S.19 of the Act and the Lekh No. 101, Exh. 116 that the entry of properties belonging to the plaintiff-trust have been made in the register of public trust and the entry of description of four boundaries of the land made at page 2 of the document Exh. 117 corresponds with the description of four boundaries shown in Lekh No. 101 Ex. 116. The trial Judge also referred to Exh. 116 for coming to the conclusion that the entire open land surrounding Hareshwar Mahadev Mandir was given to the plaintiff-trust, exclusive of the premises of the temple. It also reached the conclusion by considering the oral and documentary evidence produced by the defendant that the documentary evidence produced by the defendant revealed the open land surrounding the Hareshwar Mahadev Mandir, excluding the land of temple and pujari room, is not of the ownership of defendanttrust. With these findings, it found in favour of the plaintiff about the title and decreed the suit for removal of encroachment in favour of the plaintiff by deciding the issue of adverse possession also against the defendant. On appeal before learned Extra Assistant Judge, the decree passed by Civil Judge (Junior Division) was affirmed vide judgment and decree dated 2-5-1977. On the question about ownership, the appellate Court referred to the register of the property maintained under the Act where the entries of the properties owned by the public trust, of which the plaintiffs are trustees, were made at the time of registering the trust when there was no disputes about the ownership, and agreed with the conclusion of the trial Court that the land in question has been shown as registered in favour of the plaintiffs, by affirming the decree of the trial Court. It also relied on the circumstances, that the defendant is also public trust registered under the Act and the properties belonging to it also have been shown in the register of trust. However, land in question was not registered in the name of defendants. It was noticed by the learned appellate Judge that when the defendant himself got registered this trust with the Charity Commissioner he did not include the property in question in the list of properties owned by it and to be registered as properties of the trust. In these circumstances, the appellate Judge found in favour of the plaintiff. The plea on behalf of the respondent was not accepted, and the suit was decreed.

(3.) Defendants while they filed the second appeal along with memo of appeal, one of the sustantial question of law which according to the defendant arose in this case was "whether the suit filed by the plaintiff is maintainable at law". From the judgment under appeal and the grounds raised in memo of appeal, this question had reference to the plea of the defendant that since matter is pending before City Survey authorities for the purposes of City Survey under Rule 109 and it has not been finally adjudicated, therefore the Civil Court has no jurisdiction. However, when the matter came up for hearing Mr. Kavina, learned Counsel for the appellant confined his contention for the purpose of raising substantial question of law to only one ground, namely, that the Civil Court had no jurisdiction to entertain the dispute relating to ownership and title of the property in question vis-a-vis the plaintiff and defendant in view of the clear provisions contained in Secs. 78 and 79 of the Bombay Public Trusts Act, 1950, which makes the Deputy or Assistant Charity Commissioner the exclusive authority to decide the question whether property is the property of the trust or not. Unless such question is decided by Deputy or Assistant Charity Commissioner, should there be any further appeal by the Charity Commissioner, the civil Court or this Court do not get jurisdiction to entertain that question, and the decision of Charity Commissioner or Deputy or Assistant Charity Commissioner, as the case may be is final and conclusive. Since question concerned inherent lack of jurisdiction of the civil Court to entertain and try the issue and does not depend on any new facts, learned Counsel was permitted to raise this issue for the first time in appeal.