SAHEBGOUDA (DEAD) BY LRS. AND ORS.versusOGEPPA AND ORS.

A               SAHEBGOUDA (DEAD) BY LRS. AND ORS.
                                          V.

                               OGEPPA AND ORS.

                                MARCH 28, 2003

B              [S. RAJENDRA BABU AND G.P. MATHUR, JJ.]




                                                                                      .
          Bombay Public Trust Act,1950: Ss.2(13), 2(18), 18,19,79 and 80.

        Public Trust/Temples-Suit for claiming rights of Pujariki as ancestral
c pujari--Jurisdiction ofCivil Court-Held: Since relieft claimed by the petitioner
  do not relate to declaration of trustltrusr property on which decisions of the
  authority/officer under the Act has been conclusive. Civil Court has jurisdiction
  to entertain such suit-Mere fact that application for registration of Temple
  and annexed land as public trust was pending before the authority under the
D Act cannot in any manner oust the jurisdiction ofCivil Court-Matter remanded
  for adjudication afresh-Directions issued~ivil Procedure Code, 1908-0.9,
  R.9 and Section 9.

          The question which arose in these appeals was whether the
    jurisdiction of the Civil Court is ousted under Section 80 of the Bombay
E   Public Trust Act to entertain the suit in which petitioners claiming their
    rights of pujariki as ancestral pujarl in respect of the temple and land
    annexed thereto when application for registration ofsuch temple as public
    trust was pending before the compete1~t authority under the Act.

          Answering the question in the ni~gative, the Court
F
           HELO: t.IThe Bombay Public Trusts Act, 1950 has been enacted
    to regulate and to make better provision for the administration of public,
    religious and charitable trusts. (95-A(

          1.2. Section 9 of Code of Civil Procedure clearly lays down that th~
G Civil Court shall have jurisdiction to try all suits of a civil nature excepting
    suits of which their cognizance is eith~'r expressly or impliedly barred. It
    is well settled that the Civil Court has jurisdiction to try all suits of civil
                                                                                      I•
    nature and the exclusion of jurisdiction of the Civil Court is not to be
    rightly inferred. Such exclusion muslt be either explicitly expressed or
    clearly implied. (96-B, q
H                                         90
                    SAHEBGOUDA (DEAD) BY LRS. v. OGEPPA                        91

          Musamia Imam Haider Bax Razvi v. Rabri Govindbhai Ratnabhai and            A
    Ors.. AIR (1969) SC 439; Dewaji v. Ganpatlal. AIR (1969) SC 560 and VLNS
    Temple v. /. Pattabhirami Reddi, AIR (1967) SC 781, relied on.

          1.3. The only right claimed by the appellants is that of being ancestral
    Pujaris of the temple. The appellants do not claim themselves to be the
    trustees of any trust as defined under Section 2(18) of the Act. No              B
    declaration regarding the existence or otherwise of a trust or that any
r   particular property is the property of such trust which comes within the
    purview of the Deputy or Assistant Charity Commissioner under Section
    79 of the Act has been claimed. The only relief claimed was a declaration
    regarding the right of the appellants to function as hereditary Pujaris or       C
    their Pujariki rights of performing Puja in the temple and a consequential
    decree for injunction for restraining the respondents from interfering with
    the aforesaid rights of the appellants. The reliefs so claimed do not at all
    come within the ambit of Section 19 or Section 79 of the Act on which the
    Deputy or Assistant Charity Commissioner has the jurisdiction to hold
    an inquiry and give a decision. Therefore, the bar of Section 80 of the Act      D
    which by the express language used is confined to "any question which is
    by or under this Act be decided or dealt with by any officer or authority
    under this Act and in respect of which the decision or order ofsnch officer
    or authority has been made final and conclusive" would not apply.
                                                              (97-F, G, H; 98-A)     E
          1.4. The mere fact that the appellants along with others had taken
    steps to get the temple and the land annexed to it registered as public trust
    by moving an application to that effect under Section 18 of the Act before
    the Assistanf Charity Commissioner cannot in any manner oust the
    jurisdiction of the Civil Court in view of the allegations disclosed in the·     p
    plaint and the relief claimed therein. The view taken by the High Court
    is clearly erroneous in law and is set aside and the matter is remanded
    for a fresh decision in accordance with law. (98-C, E; Fl

            CIVIL APPELLATE JURISDICTION : Civil Appeal No. 1352-1353 of
    1993.                                                                            G
         From the Judgment and Order dated 24. 7.1992 of the •Karnataka High
    Court in R.S.A. Nos.708-709 of 1990.

         R.S. Hegde, I. Ahmed, Chandra Prakash and S.K. Agnihotri for the_
    Appellant.                                                             H
    92                   SUPREME COURT .REPORTS                 [2003] 3 S.C.R.

A        K.R. Nagaraja (NP), Dr. Meera Agarwal and R.C. Mishra for the
    Respondents.

         The Judgment of the Court was delivered by

        G.P. MATHUR, J. These appeals by special leave have been preferred
B by the appellants against the judgment and decree dated July 24, 1992 of the
  High Court of Karnataka by which the Second Appeals preferred by the
  respondents were allowed and the suit filed by the appellants was dismissed
  on the ground that the same was barred by Section 80 of Bombay Public
  Trust Act, 1950 (hereinafter referred as 'the Act').
c        The question in issue relates to the jurisdiction of the Civil Court to
  entertain the suit, which was instituted by the appellants in the Court of
  Principal Munsiff, Bijapur. The case of the appellants in brief was that they
  are the ancestral Pujaris of the Amogsidda Temple situated in Survey No.
  214, particularly Survey No. 214-B of Jalg;eri Taluka Bijapur, and prior to
D them their father and grand-father performed Puja by turns. The appellant
  No. I has eight annas right of Puja and otht:r appellants have the remaining
  right of Puja which right the appellants and their ancestors had been exercising
  by turns. The appellants performed Puja throughout the year and at the time
  of annual Jatra of Chhatti Amavasya get the offerings made by Bhaktas to the
E God Amogsidda in the aforesaid temple and this has been going on for a long
  time probably from the time of Amogsidcla's death and construction of
  Samadhi about six hundred years back. The Samadhi is the God of Amogsidda
  in the suit temple and the appellants have been performing Puja and getting
                                                                                     -
  the benefit of offerings and serving them as ancestral wahiwatdar Pujaris of
  the temple being descendants of Amogsidda. The respondents come from
F Arkeri village and claimed to be related to Amogsidda being Kurbars and
  disputed the right of the appellants and their ancestors. The respondents and
  some others filed a suit for injunction against the ancestors of appellants
   being OS No. 88 of 1944 but the same was dismissed. Thereafter they again
   started obstructing the appellants in performance of Puja in the temple in
   1967 and therefore the present appellant no.4 and father of appellant no.3
G had filed OS No.347 of l 967 for injunction for restraining the respondents
   from causing any obstruction in the performance of Puja but the suit was
   dismissed for want of prosecution. The appellants have been continuously
   exercising their right of Puja till now without any objection and the annual
   Jatra taking place in the area around the temple is managed by a Panchayat
H led by Siddalingappa Karbasappa Siralshetty and the Pujari. It was further
     SAHEBGOUDA (DEAD} BY LRS. v. 00.EPPA [G.P. MATHUR, J.]                  93

pleaded that the appellants and Bhaktas had taken steps to get the temple and      A
the land annexed to it registered as Public trust with the Assistant Charity
Commissioner at Belgaum and in tbat connection Inquiry No.321 of 1980
had been instituted in his office. The reliefs claimed in the suit are as under:

       (A) A decree of declaration that plaintiffs are the ancestral wahiwatdar·   B
           Pujaris and thus have the Pujariki rights of performing Puja at all
           times of the Amogsldda God in suit temple at all times by turns
           among themselves as stated above;

       (B) A consequential decree of permanent prohibitory injunction
           restraining defendants, their agents and assigns or representatives     C
           from interfering in any manner whatsoever with the plaintiffs
           right of Puja of Amogsidda God in the Temple;

       (C) Any other relief, the Court deems fit in the circumstances of the
           case.

       The respondent No. I filed written statement denying the allegations
                                                                                   D
made in the plaint, and pleaded that as the suit instituted by the appellants in
the year 1967 had been dismissed in default, the present suit was barred by
order IX Rule 9 C.P.C. The respondent No.4 filed written statement contesting
the suit on the grounds, inter alia, that the appellants did not/have any right
whatsoever to perform the Puja as Pujaris in the temple and that' the Amogsidda    E
temple is situat!l in Mammatti Gudda in RS No.214/B of Jalageri village; that
neither the appellants nor their ancestors ever performed Puja in Amogasidda
Temple nor have they received any offerings made by the Bhaktas and that
the allegations made in the plaint that the respondents had put any obstructions
and started picking up quarrels was false.
                                                                                   F
      On thc;1 pleadings of the parties the learned Munsiff framed 11 issues
and Issue No.8 was whether the suit is barred on account of Sections 79 and
80 of the Act. The learned Munsiff decided issue No.8 in favour of the
appellants and held that the suit was not barred by the aforesaid provisions
of the Act. After appraisal of the oral and documentafY evidence he partly         G
decreed the suit for a declaration that the appellants and the respondents are
the Pujaris of the suit temple situate at Mammatti Gudda. The appellants
along with a Devasthan Committee of Jalageri village shall perform Puja and
Jatra of Amogsidda temple situate at Mammatti Gudda upto 15th day of
coming Chatt! Amavasya of 1986 and they shall hand ov~r the possession of
the suit temple from 16th day ofChatti Amavasya of 1986 to the respondents         H
    94                     SUPREME COURT REPORTS                    (2003] 3 S.C.R.

A and the respondents shall perform Puja and also jatra of the suit temple till
     15th day of future Chatti Amavasya. H was also declared that the appellants
    and respondents have got right of Puja and celebration of Jatra on yearly turn
    as stated aforesaid. The appellants and also the respondent Nos. 2, 4 and 6
    preferred appeals against the decree passed by the learned Munsiff. The First
B   Appellate Court allowed the appeal of the appellants and dismissed the appeal
    of the respondents and the decree passed by the trial court was modified. The
    appellants were held to be the hereditary Pujaris of Amogsidda temple situated
    at Mammatti Gudda and other temples surrounded by it situated both in
    Jalageri and Arakeri village limits. The respondents were further prohibited
    from causing obstruction in the peacetiJI performance of Puja by the appellants
C   in Amogsidda temple.

           Feeling aggrieved by the judgment and decree of the First Appellate
    Court, the respondents preferred second appeals before the High Court. The
    High Court has observed that a very important point regarding the effect of
    filing of the application for registration of the temple before the Assistant
D   Charity Commissioner, Belgaum and the pendency of inquiry before him
    regarding registration of the temple as a Trust escaped the notice of the
    courts below. It was held that the question whether the temple is a public
    trust could only be decided by the Assistant Charity Commissioner and this
    point could not be decided by the Civil Court as the jurisdiction of the Civil
E   Court was barred under Section 80 of the Act. It was further held that the
    appellants are claiming rights not only as Pujaris but as Pujari-cum-trustees
    and therefore it cannot be said that the suit of the appellants was only for
    Pujariki rights. It was accordingly held that the jurisdiction of the civil court
    was barred under Section 80 of th<e Act, in view of the inquiry which was
    pending before the Assistant Charity Commissioner Belgaum. On these
F   findings the second appeals were a1ilowed and the suit filed by the appellants
    was dismissed.

         Learned counsel for the appellants has submitted that bar of the
  jurisdiction of the civil court is created by Section 80 of the Act but the said
  provision has no application on the facts of the present case and therefore the
G view taken by the High Court that the suit filed by the appellants is barred
  by the aforesaid section is clearly erroneous in law.

          Learned counsel for the respondents has, on the other hand, submitted
    that on the pleadings of the parties the question which requires adjudication
    comes expressly within the purview of the Bombay Public Trusts Act and
H   therefore the bar created by Section 80 of the said Act was applicable and the
     SAHEBGOUDA (DEAD) BY LRS. v. OGEPPA [G.1\ MATHUR. J.]                 95
Civil Court had no jurisdiction to try the suit or to gr11nt 11 decree in favour A
of the appellants and consequently the High Court wiis porfectly correct in
holding that the suit was barred by the aforesaid provision.

       As the preamble shows, the Bombay Public Trusts Act, 1950 has been
enacted to regulate and to make better provision for the administration of
public, religious and charitable trusts. Section 2 (13) defines a public trust B
and it means an express or constructive trust for either a public religious or
charitable purpose or both and includes a temple, a math, a wakf, church,
synagogue, agiary or other place ofpublic religious worship, a dharmada or
any other religious or charitable endowment and a society formed either for
a religious or charitable purpose or for both and registered under the Societies C
Registration Act, 1860. Section 2 (18) defines a trustee and it means a person
in whom either alone or in associ11tlon with other persons, the trust property
is vested and includes a manager. Section 18 provides that it shall be the duty
of the trustee of a public trust to which the Act has been applied to make an
application for the registration of the public trust and such application is to
be made to the Deputy or Assistant Charity Commissioner of the region. Sub- D
section (5) of this Section enjoins that the application shall, inter alia, contain
the particulars regarding matters enumerated in clauses (ai) to (viii), thereof,
namely, the names and addresses of the trustees and the manager, the mode
of succession to the office of the trustee, list of the movable and immovable
trust property with their descriptions and particulars, the approximate value E
of movable and immovable property, average annual income and expenditure,
etc. Section 19 lays down that on receipt of an application under Section 18
the Deputy or Assistant Charity Commissioner shall make an inquiry in the
prescribed manner for the purpose of ascertaining whether a trust exists and
whether such trust is a public trust, whether any property is the property of
such trust, the names and addresses of the trustees and manager, the mode of F
succession to the office of trustee, the origin, nature and object of such trust
and the amount of gross average annual income and expenditure thereof.
Section 79 provides that any question whether or not a trust exists and such
trust is a public trust or particular property is the property of such trust shall
 be decided by the Deputy or Assistant Charity Commissioner or in appeal by
the Charity Commissioner as provided by the Act. The decision ·Of the Deputy G
 or Assistant Ch&rity Commissioner or the Charity Commissioner in appeal,
as the case may be, unless set aside by the decision of the Court on application
 or by the High Court ln appeal, shall be final and conclusive. Section 80 is
 important and it reiids as under :-
                                                                                H
    96                     SUPREME COLRT REPORTS                     [2003] 3 S.C.R.

A           "80 Bar of Jurisdiction: Save as expressly provided in this Act, no
            Civil Court shall have jurisdictiion to decide or deal with any question
            which is by or under this Act to be decided or dealt with by any
            officer or authority under this Act, and in respect of which the decision
            or order of such officer or authority has been made final and
            conclusive."
B
           The question whether the suit filed by the appellants is barred by the
    provisions of Section 80 of the Act has to be examined in the light of the
    provisions referred to above. Section 9 of Code of Civil Procedure clearly
    lays down that the Civil Court shall have jurisdiction to try all suits of a civil
C   nature excepting suits of which their cognizance is either expressly or impliedly
    barred. It is well settled that the Civil Court has jurisdiction to try all suits
    of civil nature and the exclusion of jurisdiction of the Civil Court is not to
    be rightly inferred. Such exclusion must be either explicitly expressed or
    clearly implied. In Musamia Imam Haider Bax Razvi v. Rabri Govindbhai
    Ratnabhai and Ors., AIR (I 969) SC 439 (para 7) this Court observed that it
D   is necessary to bear in mind the important principle of construction which is
    that if a statute purports to exclude the ordinary jurisdiction of a civil court
    it must do so either by express terms or by the use of such terms as woul~
    necessarily lead to the inference of such exclusion. This principle was reiterated
    in Dewaji v. Ganpatlal, AIR (1969) SC 560.

E         It is also well settled that a provision of law ousting the jurisdiction of
    a Civil Court must be strictly construed and onus lies on the party seeking
    to oust the jurisdiction to establish his right to do so. In VLNS Temple v. /.
    Pattabhirami Reddi, AIR (1967) SC 781 Subba Rao, J. speaking for the
    Court held as under in para 13 of the reports:
F           "Under Section 9 of the Code of Civil Procedure, the courts shall
            have jurisdiction to try all suits of a civil nature excepting suits of
            which their cognizance is either expressly or impliedly barred. It is
            a well settled principle that a party seeking to oust jurisdiction of an
            ordinary civil court shall establish the right to do so. Section 93 of
G           the Act does not impose a total bar on the maintainability of a suit
            in a civil court. It states that a suit of the nature mentioned therein
            can be instituted only in conformity with the provisions of the Act;
            that is to say, a suit or other legal proceeding in respect of matters not
            covered by the section can b(: instituted in the ordinary way. It therefore
            imposes certain statutory restrictions on suits or other legal proceedings
H
     SAHEBGOUDA (DEAD) BY LRS. v. OGEPPA [G.P. MATHUR, J.J                  97
       relating to matters mentioned therein ............. "                      A
        The allegations made in the plaint are that the appellants are the
ancestral Pujaris of the temple and prior to them their father and grand-father
had been performing Puja by turn and they also get the offerings made by
the Bhaktas to the God Amogsidda in the temple. The appellants claimed that
their ancestors have been performing Puja and getting the offerings ever . B
since the Samadhi was made about six hundred years back. This right they
claimed as ancestral wahiwatdar Pujaris of the temple being descendants of
Amogsidda. According to the appellants, the cause of action for filing the .
suit arose when the respondents created obstruction in performance of Puja
by the appellants in the temple and they took away some Puja articles from C
there. The reliefs claimed are for a declaration that the appellants are wahiwat
Pujaris and thus have the Pujariki rights of performing Puja in the temple at
all times and also a decree for injunction restraining the respondents from
interfering in any manner whatsoever with the appellants' right of Puja. It
may be noted that Section 18 of the Act casts a duty upon the trustee of a
public trust to which the Act has been applied to make an application for the D
registration of the public trust. The Deputy or Assistant Charity Commi.ssioner
to whom such an application is made is required under Section 19 of the Act
to make an inquiry for the purpose of ascertaining matters enumerated in
clauses (i) to (viii) thereof and they relate to the question whether a trust
exists and whether the same is a public trust, whether any property is the E
property of such trust, the names and addresses of the trustees and manager
of such trust, the mode of succession to the office of the trustee, the origin,
nature and object of such trust, the amount of gross average annual income
and expe1iditure thereon.

      The allegations made in the plaint show that the only right claimed by      F
the appellants is that of being ancestral Pujaris of the temple. The appellants
do not claim themselves to be the trustees of any trust as defined under
Section 2(18) of the Act. No declaration regarding the existence or otherwise
of a trust or that any particular property is the property of such trust which
comes within the purview of the Deputy or Assistant Charity Commissioner
under Section 79 of the Act has been claimed'. The only relief claimed is a       G
declaration regarding the right of the appellants to function as hereditary
Pujaris or their Pujariki rights of performing Puja in the temple and a
consequential decree for injunction for restraining the respondents from
interfering with the aforesaid rights of the appellants. The reliefs so claimed
do. not at all come within the ambit of Section I9 or Section 79 of the Act       H
    98                     SUPREME COLRT REPORTS                    [2003] 3 S.C.R.

A on which the Deputy or Assistant Charity Commissioner has the jurisdiction
    to hold an inquiry and give a decision. Therefore, the bar of Section 80 of
    the Act which by the express language used is confined to "any question
    which is by or under this Act be decided or dealt with by any officer or
    authority under this Act and in respect of which the decision or order of such
B   officer or authority has been made final and conclusive" would not apply.

         The only ground given by the High Court for holding that the suit is
  barred by the aforesaid provision is that in para 3 of the plaint it is admitted
  that the appellants and other remaining Bhaktas have taken steps to get the
  temple and land annexed to it, registered as public trust with the Assistant
C Charity Commissioner at Belgaum and that one of the appellants admitted in
  his statement that he along with others had moved an application for registering
  temple property as a public trust and inquiry in that regard was pending. In
  our opinion the mere fact that the appellants along with others had taken
  steps to get the temple and the land annexed to it registered as public trust
  by moving an application to that effe:ct under Section 18 of the Act before
D the Assistant Charity Commissioner cannot in any manner oust the jurisdiction
  of the Civil Court in view of the alle,gations disclosed in the plaint and the
  relief claimed therein. The cause of action for filing the suit is that in the
  night of March 3, 1982 respondents created obstruction in the performance
  of Puja by the appellants in the temple and taking away of certain Puja
E articles by them which made it impossible for the appellants to proceed with
  the Puja. In our opinion the decision of the controversies raised in the suit
  do not at all require adjudication of any such matter which may have to be
  done by the Assistant Charity Commissioner while exercising his powers
  under Section 19 of the Act on the application which was pending before him
  for registration of the temple and its property as public trust. We are, therefore,
F of the opinion th&t the view taken by the High Court is clearly erroneous in
  law and the judgment and decree passed by it must be set aside. In the result,
  the appeals succeed and are hereby allowed. The judgment and decree dated
  July 24, 1992 passed by the High Court is set aside and the matter is remanded
  for a fresh decision of Second Appeals No. 708 and 709 of 1990 expeditiously
G and in accordance with law. The appellants will be entitled to their costs.
    S.K.S.                                                        Appeals allowed.