BASHIR ABBAS KUDALE Vs. MAHADEO

JUDGEMENT

(1.) THIS appeal takes exception to the judgment and order passed by the 2nd Additional District Judge, Solapur dated 13-6-1988 in Civil Appeal No. 76 of 1984. By this order the first Appellate Court has set aside the order passed by the trial Court in dismissing the suit preferred by the respondents as barred by jurisdiction and instead remanded the matter to the trial Court for reconsideration in view of the observations made in the impugned judgment.

(2.) BRIEFLY stated, the disputed structure is situated at Gram Panchayat No. 537 of Village Mardi, District Solapur admeasuring 1234 sq. ft. The appellants had filed application before the Assistant Charity Commissioner bearing No. 174 of 1966, some time on 13th July, 1966, praying for the registration of the public trust on the premise that the suit property belongs to Shahi Masjid. This application was decided on 27th July, 1966 in favour of the appellants as there was no contest to that application. As a consequence of that order, the trust was ordered to be registered. The respondents however, filed suit on 28th November 1966 alleging that the suit property belonged to the Hindu Community Hemadpanthi of Shri Mahadeo (plaintiff No. 1 respondent No. 1 herein) which was known in the past as Shri Shivalaya temple or Siddeshwar temple. Following reliefs are claimed in the said suit, which read thus:

(3.) WHILE the aforesaid suit was pending, two persons belonging to Hindu Community challenged the abovesaid order passed by the Assistant Charity Commissioner before the Charity Commissioner, being Appeal Nos. 104 and 108 of 1966. Besides, a separate application was filed being Application No. 241/1966 before the Assistant Charity Commissioner on 6-9-1966 for registration of the suit property as a Mahadeo Mandir trust. Initially this proceeding was stayed till the decision of the appeal filed before the Charity Commissioner. Later on said Application No. 241 of 1966 was rejected with an observation that it will be open to the applicant to file a fresh application after the original Application No. 174/1966 is finally decided. The aforesaid Appeals Nos. 104 and 108 of 1966 were partly allowed by the Charity Commissioner on October, 18, 1969 and he was pleased to set aside the order passed by the Assistant Charity Commissioner and remanded the Application No. 174 of 1966 for fresh enquiry. After this order, persons belonging to Hindu Community made application for registration of the temple as a trust, being Application No. 60 of 1970. Both the applications were to be heard together. Accordingly, Public Notice was also issued on 29-8-1979, as required under the Rules. It is relevant to note that, parties to the present proceedings filed pursis Exhibit 156 before the Civil Court taking a clear position that the question involved in the suit is as to whether the Public Trust as contended by the respondents or as contended by the appellants exists or not and whether the suit property belongs to the respondents-trust or to the appellants-trust. In view of this pursis, the Civil Court permitted the parties to agitate those questions before the Assistant Charity Commissioner who was to decide the pending Application No. 174/1966 and 60/1979 filed by the respective parties. Till such decision was obtained, further hearing of the suit was stayed. It is also relevant to note that before the Assistant Charity Commissioner, both the parties filed application Exhibit 21 requesting the Assistant Charity Commissioner to call for the record and proceedings in the pending suit with the permission of the Civil Court so as to read the same as evidence in the enquiry under section 19 of the Bombay Public Trust Act. That request was acceded to. It is not in dispute that the entire evidence adduced before the Civil Court in the pending suit was read as evidence in the enquiry held by the Assistant Charity Commissioner under section 19 of the Act. After considering the relevant materials on record, the Assistant Charity Commissioner delivered a common judgment disposing of both the pending applications dated 9th October, 1972. The Assistant Charity Commissioner ordered registration of Shahi Masjid as a Public Trust. In other words, the application preferred on behalf of the appellants was allowed and the one preferred on behalf of the respondents was rejected. Pursuant to this order Shahai Masjid has been registered as a Public Trust. It is not in dispute that against the order passed by the Assistant Charity Commissioner dated 9-10-1972, the respondents preferred statutory appeal, being Appeal No. 174/1972 before the Joint Charity Commissioner, which was dismissed. Against this decision the respondents carried the matter before the District Court under section 72 of the Act. Even that application being Application No. 79 of 1975 has been dismissed on 10th February, 1978. In other words, the order passed by the Assistant Charity Commissioner ordering registration of Shahi Masjid as a Public Trust became final, with the culmination of this proceeding. It is not in dispute that this order has not been challenged by the respondents. However, much thereafter, an application Exhibit 160 dated 18-8-1981 came to be filed on behalf of the respondent in the Civil Court in the pending suit for reopening the trial of the civil suit as the proceeding before the Charity Commissioner had become final. In this application, it was asserted that the question of title in respect of the suit property was in issue and that question will have to be considered by the Civil Court. The trial Court examined the said application and the rival contentions canvassed before it and took the view that, the questions which will be required to be considered in the suit were; whether the trust exists and whether such trust was a public trust and whether the suit property is property of such trust. The Civil Court observed that those questions were exclusively triable by the Charity Commissioner for, by virtue of section 80 of the Act, the jurisdiction of the Civil Court to examine those questions was clearly barred. The trial Court has adverted to other contentions and eventually by judgment and decree dated 16th July, 1983 held that the suit as presented by the respondents was barred by law and, therefore, without jurisdiction. The respondents carried the matter in appeal before the District Court being Civil Appeal No. 76/1984. The first Appellate Court on the other hand accepted the plea taken by the respondents that, the question of title to the property was involved and which could be decided only by the Civil Court. In this view of the matter, the first Appellate Court set aside the judgment and decree passed by the trial Court and instead remanded the suit for fresh decision in accordance with law. Against this order of remand, the present appeal from order has been filed.