Supreme Court of India
VIJAY PULLARWAR & ORS.versusSHRI HANUMAN DEOSTHAN,A PUBLIC TRUST THROUGH ITS TRUSTEES
- Citation
- 2018 INSC 1066
- Decided
- 16 November 2018
- Disposal
- Appeal(s) allowed
- Bench
- D Y CHANDRACHUD
Holding
The suit house is not a property of Shri Hanuman Deosthan public trust; the suit is dismissed because the trust’s registration does not cover the house and the statutory procedure under Sections 50 and 51 was not complied with, and the Charity Commissioner’s determinations are final.
Summary
The plaintiff, Shri Hanuman Deosthan, a public trust registered under the Maharashtra Public Trusts Act, 1950, sued the defendants for possession of House No.878 in Circle No.3, claiming it was trust property. The trial court decreed possession in favour of the trust, but the first appellate court reversed, finding the house was not listed in the trust's Schedule I and belonged to a private Math of Haridas Baba. The High Court restored the trial court's decree, treating the defendants' admission of caretaking as evidence that the house was trust property. The Supreme Court held that the trust’s registration did not include the suit house, the required permission under Sections 50 and 51 of the Act was not obtained, and the Charity Commissioner’s findings are final and conclusive. Consequently, the suit was dismissed and the lower appellate decision restored.
Issues considered
- The existence of the trust and whether the suit house is a property of the public trust under the Maharashtra Public Trusts Act, 1950.
- Whether the findings of the Charity Commissioner regarding trust property are final and conclusive, precluding civil court jurisdiction.
- Whether the suit was filed in compliance with Sections 50 and 51 of the Act, i.e., with the Charity Commissioner’s consent.
- Whether the defendants' admission of caretaking the house creates a binding presumption that the house is trust property.
Legislation cited
- Code of Civil Procedure, 1908s. 100
- Maharashtra Public Trusts Act, 1950s. 19, s. 20, s. 21, s. 21(2), s. 22(3), s. 26, s. 36, s. 41(2), s. 50, s. 50A, s. 51, s. 79, s. 80
Subjects
public trustpossession suittrust propertyregistrationCharity CommissionerSection 50Section 51finality of administrative orderscivil court jurisdictionmisdescription of propertyadverse possession
Judgment
[2018] 13 S.C.R. 763 763
VIJAY PULLARWAR & ORS. A
v.
SHRI HANUMAN DEOSTHAN, A PUBLIC TRUST THROUGH
ITS TRUSTEES
(Civil Appeal No. 7789 of 2011) B
NOVEMBER 16, 2018
[A. M. KHANWILKAR AND
DR. DHANANJAYA Y CHANDRACHUD, JJ.]
Maharashtra Public Trusts Act, 1950: C
ss. 21(2), 22(3), 26, 36, 41(2), 50, 50A, 51(4) and 79(2) –
Suit by respondent/plaintiff (a Trust) – For possession of suit property
on the basis of title – Plaintiff ’s case was that the suit property
occupied by the predecessors of the defendants/appellants was the
property of the presiding deity and was managed by the Trustees in D
whom it vested for management – Trial court decreed the suit –
First appellate court after re-appreciating the evidence reversed
the finding of fact recorded by the trial court – High court in second
appeal restored the decree passed by the trial court – On appeal,
held: The suit property was a trust property – However, procedure
envisaged u/ss. 50 and 51 has not been complied with – The questions E
whether the suit property was the property of the Trust and whether
it should be recorded as the property of the Trust was a matter
exclusively within the domain of the Charity Commissioner – The
property registered as Public Trust and the property occupied by
the defendants (suit property) are two different properties – Thus, F
the suit property is not the property of the plaintiff/Trust – Therefore,
the suit is liable to be dismissed.
Allowing the appeal, the Court
HELD: 1. The factum of existence of the trust and the trust
property is a matter of enquiry for registration envisaged under G
Section 19 of the Maharashtra Public Trust Act, 1950. On
completion of such enquiry, the competent authority is required
to record its findings with the reasons therefor, in terms of Section
20 of the 1950 Act. After complying with the prescribed formalities
H
763
764 SUPREME COURT REPORTS [2018] 13 S.C.R.
A by the applicant and upon the findings so recorded during the
enquiry becoming final, the said authority is obliged to make
entries in the register kept for that purpose as per Section 21(1)
of the 1950 Act. Such entries become final and conclusive, subject
to any change to be recorded. This is predicated under Section
21(2) of the 1950 Act. The Act provides for finality and
B
conclusiveness of the order passed by the Charity Commissioner
in Sections 21(2), 22(3), 26, 36, 41(2), 51(4) and 79(2). For filing
a suit concerning the public trust, procedure is provided in
Section 50 of the Act. Furthermore, Section 80 of the 1950 Act
posits a bar of jurisdiction of the civil court to decide or deal with
C any question which by or under the Act is to be decided or dealt
with under the said Act. [Paras 19, 20, 21 and 22][779-C-D;
780-B-D; F-G; 781-A-B]
Church of North India v. Lavajibhai Ratanjibhai and
Others (2005) 10 SCC 760 : [2005] 3 SCR 1037;
D Dhulabhai and Others v. The State of Madhya Pradesh
and Another [1968] 3 SCR 662 – relied on.
2.1 The present suit is a suit for recovery of possession of
the subject property on the basis of title claimed therein by the
plaintiffs/respondents and being a property of the trust. However,
E the procedure envisaged under Sections 50 and 51, obviously,
has not been complied with. For, such permission has not been
produced nor adverted to by the courts below. [Para 22]
[784-B-C]
2.2 As the plaintiffs/respondents have claimed title in the
F suit property, that claim could be answered on the basis of the
registration application of the trust, and schedule I regarding the
registered properties of the trust. Whether the property is a
property of the trust and including the question as to whether it
should be so recorded as the property of the trust, is a matter
exclusively within the domain of the Charity Commissioner.
G [Para 23][784-C-E]
2.3 The application for registration of the public trust
submitted on 31 st August, 1953 (Exh.63), the subsequent
application for registration submitted under the provisions of the
1950 Act dated 13th September, 1961 (Exh.64), the schedule I
H recording properties of the plaintiff public trust (Exh.43), the
VIJAY PULLARWAR v. SHRI HANUMAN DEOSTHAN, 765
A PUBLIC TRUST
enquiry report dated 13 th October, 1954 (Exh.42), and the A
application for framing of the scheme and the order passed by
the Charity Commissioner dated 4th April, 1975 (Exh.46), none
of these document mention about “Padukas of Haridas Baba”
installed in House No.878 or refer to House No.878 in Circle
No.3 being the trust property; but instead, make specific
B
reference to House No.55 in Circle No.3, which is a completely
different property. These documents also do not advert to the
document dated 23 rd May, 1946 (Exh.41), allegedly creating a
Panch Committee in respect of the suit House No.878 in Circle
No.3. [Para 25][784-G-H; 785-A-B]
2.4 The finding of fact recorded by the First Appellate Court C
regarding the two properties have been brushed aside by the
High Court on the specious asumption that it is a case of mis-
description of the property in the official register of public trust.
That, however, was not the case pleaded much less proved by
the plaintiffs/respondents. Such finding recorded by the High D
Court is a case of manifest error or error apparent, if not perverse.
The High Court could not have disregarded the registration
application and the description of the house number given in
schedule I as the registered property of the public trust, which is
House No.55 in Circle No.3. It was for the plaintiffs/respondents
to plead and prove that House No.55 shown in schedule I as E
property of the plaintiff trust is the same as House No.878 in
Circle No.3, which description has been given in the plaint as the
suit house. Having failed to establish that fact, no fault can be
found with the finding recorded by the First Appellate Court, that
the respondent Trust had no causal connection with House No.878 F
in Circle No.3 occupied by the defendants/appellants. Thus, it
must necessarily follow that the suit for possession (of House
No.878 in Circle No.3) instituted by the plaintiffs/respondents
on the basis of title, was devoid of merits. [Para 25][785-B-F]
2.5 Therefore, the Court upholds the finding of fact G
recorded by the First Appellate Court that the suit house occupied
by the defendants/appellants was recorded in the Municipal
records during 1947 to 1950 as House No.878 belonging to
Haridas Baba and that number was changed to House No.521 in
1973-74 and converted to House No.152 till the institution of the
H
766 SUPREME COURT REPORTS [2018] 13 S.C.R.
A present suit. Further, it is clear that House No.55 in Circle No.3
is entirely a different property. That has been registered as the
trust property of the respondent Trust, initially and then continued
to be shown as a registered property of the plaintiff trust until
the institution of the suit. Such registration by the authorities
under the 1950 Act would bind the plaintiffs/respondents. The
B
plaintiffs/respondents have not been able to produce any
documentary evidence to establish the fact that the suit house
(bearing House No.878 in Circle No.3, which later on became
House No.152 in Circle No.3 by the time the suit was instituted),
was the property of the plaintiff trust. [Para 26][785-F-H;
C 786-A-B]
2.6 The High Court adverted to the relevant portion of the
written statement to conclude that the defendants/appellants had
admitted that the suit property was originally owned by Haridas
Baba and that they were in possession in the capacity of caretakers
D only. Indeed, that admission can be discerned from the written
statement of the defendants as well as the oral evidence of DW-
1. But that admission does not take the matter any further. It is
not possible to assume on the basis of that admission that the
“suit house” (i.e. House No.878 in Circle No.3) is the property
of the plaintiff trust. No documentary evidence has been produced
E by the plaintiffs/respondents to establish the fact that the suit
house bearing House No.878 in Circle No.3 originally owned by
Haridas Baba was recorded as the property of the plaintiff trust
in the official records. The plea taken by the defendants in the
written statement, however, is indicative of the fact that they
F (defendants/appellants) were occupying House No.878 in Circle
No.3, which was originally owned by Haridas Baba and where his
Padukas had been installed. The written statement as well as the
oral evidence of defendants/appellants clearly refute the claim of
the plaintiffs/respondents. [Para 28][786-F-H;787-A-B]
G 2.7 The High Court has selectively adverted to the portion
of the written statement [sub-paras (b) to (d) of paragraph 11
thereof] and not to the other portion of the same paragraph,
namely sub-paras (e) to (g) which put across the stand of the
defendants/appellants including that the plaintiff trust has no causal
connection with the suit house bearing No.878 in Circle No.3.
H [Para 28][787-C-D]
VIJAY PULLARWAR v. SHRI HANUMAN DEOSTHAN, 767
A PUBLIC TRUST
2.8 The plaintiffs/respondents were primarily obliged to A
establish their title in the suit house bearing No.878 in Circle
No.3 where the Padukas of Saint Haridas Baba have been
installed, as being the property of the plaintiff trust. The plaintiffs
must succeed or fail on the title they establish; and if they fail to
do so, they must fail to get the relief of possession irrespective
B
of title of the defendant in the suit property. In the present case,
no tangible evidence regarding title of plaintiff trust in the suit
house (House No.878 in Circle No.3) is forthcoming.
[Para 29][787-D-F]
Brahma Nand Puri v. Naki Puri [1965] 2 SCR 233;
Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia C
and Ors. (2004) 5 SCC 272 – relied on.
2.9 The High Court has completely misread the admission
given by DW 1. Inasmuch as, all it says is that the house number
had changed every four years after revaluation. Further, the suit
house is in Circle No.3. This admission cannot be of any avail to D
the plaintiffs much less to hold that the plaintiff trust has title in
the suit house bearing House No.878 in Circle No.3.
[Para 30][787-F-G]
Case Law Reference
E
[2005] 3 SCR 1037 relied on Para 20
[1968] 3 SCR 662 relied on Para 20
[1965] 2 SCR 233 relied on Para 29
(2004) 5 SCC 272 relied on Para 29
F
CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7789
of 2011.
From the Judgment and Order dated 24.10.2008 of the High Court
of Judicature at Bombay, Nagpur Bench, Nagpur in Second Appeal
No. 364 of 1990. G
Gagan Sanghi, Rameshwar Prasad Goyal, Advs. for the Appellants.
D. K. Sinha, Raju Sonkar, Sanveer Mehlwal, Karunakar Mahalik,
Advs for the Respondent.
H
768 SUPREME COURT REPORTS [2018] 13 S.C.R.
A The Judgment of the Court was delivered by
A. M. KHANWILKAR, J. 1. This appeal is filed by the original
defendants against the judgment and order of the High Court of Judicature
at Bombay, Nagpur Bench in Second Appeal No.364 of 1990 decided
on 24th October, 2008, whereby the High Court, in the second appeal,
B restored the decree of possession of the suit property passed by the trial
court against the appellants, by setting aside the judgment and decree
passed by the District Court, Nagpur in Regular Civil Appeal No.564 of
1983 dated 21st January, 1989.
2. The respondent No.1, Shri Hanuman Deosthan, is a public trust
C duly registered under the provisions of the Bombay Public Trusts Act,
1950 (presently known as Maharashtra Public Trusts Act, 1950) (for
short “1950 Act”). The respondents filed Special Civil Suit No.1127 of
1978 in the Civil Court, Senior Division, Nagpur, for possession on the
basis of title. It was asserted that one Bansilal S/o Gangadin Perdeshi
Teli, R/o Circle No.3 of Nagpur was the disciple of a Hindu saint by the
D
name of Haridas Baba Vishv. The said saint took Samadhi about 70
years back before the institution of the suit. He had a “Math” situated in
Circle No.3 in house bearing No.878, where his (Haridas Baba) Padukas
came to be installed. It is stated that the said Bansilal was the Chief
Wahiwatdar of the said Math and was looking after the pujas and utsavas
E performed in the Math. Before his death, which occurred in 1944, he
had asked his wife, Yashodabai, to look after and manage the Math and
conduct puja and utsavas from time to time in his absence and keep the
Math property in good condition from the income of the Math. He had
also told his wife Yashodabai that after his death, she may appoint a
panch committee in the event she was not in a position to look after the
F affairs of the Math herself. After 1946, Yashodabai executed a document
and appointed a panch committee for the proper management of the
Math whilst she remained one of the trustees. That document was
registered on 23rd May, 1946 (Exh.41). She had nominated five persons
as panchas in the panch committee namely, Shri Badal S/o Giridharilal,
G Mohanlal Hanuman, Ramjiwan Kaluram, Nandideep Bhangavandin and
Onkar Gandelal Pardeshi. Amongst them, Badal was to remain as
sarpanch. After his demise, one Chotelal Bhikaji Pardeshi assumed the
office of Sarpanch.
3. It was further stated that except Ramjiwan Kaluram, all the
H trustees/panchas had expired by the time the suit was filed. Further,
VIJAY PULLARWAR v. SHRI HANUMAN DEOSTHAN, 769
A PUBLIC TRUST [A. M. KHANWILKAR, J.]
Chotelal Bhikaji Pardeshi, after taking over as sarpanch, made an A
application on 31st August, 1953 (Ex.63) to the appropriate authority for
registration as a public trust under the provisions of the Bombay Public
Trust Act. In that application, the description of the property of the trust
was given as per the schedule to the plaint, which property was amongst
other properties registered as the property of the public trust. After the
B
provisions of the Bombay Public Trust Act, 1950 (Exh.64 dated 13th
September, 1961) became applicable to the Vidarbha region of the State
of Maharashtra, Chotelal got the trust registered under the 1950 Act,
bearing P.T.R. No.A-50(N).
4. It is then stated that after the death of Chotelal Bhikaji Pardeshi,
a change report was submitted to the local office of the public trust at C
Nagpur which came to be rejected as no proper succession was
documented. Resultantly, the local persons having interest in the affairs
of the Math preferred an application for framing of a scheme and
appointment of trustees, being application No.71 of 1971. The Deputy
Charity Commissioner, in exercise of powers under Section 50-A of the D
1950 Act framed a scheme and appointed five persons as trustees of
Shri Hanuman Deosthan, namely, Bhayyalal Giridharilal, Kashiram
Fakiraji Potbhare, Laxman Zingaraji Sapate, Navi Shukravari and Narayan
Tanbaji Kurkute vide order dated 4th April, 1975 (Exh.46). In short, the
respondent asserted that the suit property occupied by the predecessor
of the appellants, namely Wasudeo Pullarwar, was the property of the E
presiding deity Shri Hanuman Deosthan and was managed by the trustees
in whom it vested for management. The occupant, Vasant Pullarwar,
had no right, title or interest in the said house.
5. It is then stated that a notice was issued to defendant No.2/
appellant No.1 (son of defendant No.1, the said Wasudeo Pullarwar), F
dated 4th November, 1977, calling upon him to pay the rent for the last
three years ending October 1977 @ Rs.110/- per month, which rent was
recovered by the previous trustees from the occupants of the suit house.
Appellant No.1 sent a reply on 14th November, 1977, disputing that he
was a tenant or that he was liable to pay the rent to the respondent trust. G
He stated that he was living with his father who was paying the taxes of
the suit house. It appears that the plaintiffs/respondents then caused to
send another notice to defendant No.1 Wasudeo Pullarwar dated 12th
December, 1977, making a similar demand of rent from him, to which
even he denied his liability to pay and also denied the title of the plaintiffs/
H
770 SUPREME COURT REPORTS [2018] 13 S.C.R.
A respondents in respect of the suit house occupied by him. In this backdrop,
the respondents filed a suit on 17th October, 1978 for possession of the
suit house from the defendants/appellants and for recovery of charges
for occupation of the suit house during the relevant period. The suit for
possession is thus based on title.
B 6. The appellants contested the suit by filing their written statement
asserting that the plaintiffs/respondents have no locus to institute the
suit; and the suit was not maintainable due to absence of permission of
the Charity Commissioner for filing suit for possession of immoveable
property allegedly belonging to a public trust. It was denied that Bansilal
was the Wahiwatdar and was looking after the pujas and utsavas
C performed in the Math. It was then contended that the document allegedly
executed by Smt. Yashodabai on 23rd May, 1946 (Exh.41) was a sham
and bogus document; and that one of the panchas - Ramjiwan Kaluram,
was still alive, for which reason Chotelal could not claim to be an elected
or nominated Sarpanch. Pertinently, it has been plainly stated in the
D written statement that the suit house occupied by the defendants was
not the property shown at the time of registration of Shri Hanuman
Deosthan, a public trust, and also, the same was not registered as the
property of the said trust. The said trust was registered as a public trust
with only two properties mentioned in schedule I thereof. One of the
house properties in Circle No.3 was House No.55, which has had no
E causal connection with the suit house occupied by the defendants/
appellants, bearing House No.878.
7. It is thus denied that the suit house is the property of the presiding
deity of Shri Hanuman Deosthan. It is plainly asserted by the defendants/
appellants that the suit house has been continuously and uninterruptedly
F occupied by them for over 30 years and the defendant No.1 was looking
after and managing the same, including carrying out repairs and renovation,
performing pujas and utasavas in the suit house as Wahiwatdar of the
property and paying municipal taxes. It is the case of the appellants that
the suit house was the property of a private trust and it originally belonged
G to saint Haridas Baba. Defendant No.1 was in possession of and had
been the occupant of the property for over 30 years before the institution
of the suit, as the Wahiwatdar. The appellants asserted that the respondent
Trust was not the owner of the suit house and it had no causal connection
therewith and in any case, could not oust the appellants/defendants from
the suit house under the garb of a scheme framed on 4th April, 1975 by
H
VIJAY PULLARWAR v. SHRI HANUMAN DEOSTHAN, 771
A PUBLIC TRUST [A. M. KHANWILKAR, J.]
the Deputy Commissioner (Exh.46). Accordingly, the appellants prayed A
that the suit ought to be dismissed with costs.
8. We may usefully reproduce paragraph 11 of the written statement
which succinctly unveil the case of the appellants about their right to
occupy the “suit house” (i.e. H.No.878 in Circle No.3) and to reject the
claim of the plaintiffs/respondents concerning the suit house or having B
any causal connection therewith leave apart having acquired any title in
terms of the scheme framed for the public trust.
9. We deem it necessary to reproduce the whole of paragraph 11
of the written statement. For, the High Court has decided the matters in
issue against the defendants/appellants only by referring to sub-paras C
(b), (c) and (d) thereof, as reproduced in paragraph 9 of the impugned
judgment. Paragraph 11 reads thus:
“11. Paragraph
(b) Haridas was a great saint of his times. He died about 55 years
ago. He took Samadhi. The suit house (Kuti) belonged to Haridas D
which was not a Math, Padukas of Haridas were not installed by
Bansilal.
(c) The suit house was bearing House No.143 and then it was
changed as House No.492 and again this was changed as House
No.104 in Cir. No.3, Nagpur. Owner of the suit house was Haridas E
Bairagi, the saint.
(d) In this suit house Padukas of Haridas are installed. The
plaintiff’s allegation that Bansilal was the Chief Wahiwatdar are
denied. The puja and uttaav of the Padukas of Haridas used to be
done by some disciples. F
(e) It is emphatically denied that the suit house was or is a Math.
It is denied that Bansilal, yashodabai, Chhotelal, alleged Sarpanch
or the alleged Panch names in the alleged Deed dated 3.5.1946 or
the plaintiffs 1 to 5 were or are trustees. These above persons
had or have no connection with the suit house or Padukas. The G
alleged Deed, if any, dated 3.5.1946 is null, void, illegal and invalid.
(f) The suit house in circle No.3 at Nagpur and after it touching
to it, is a public tar-road passing north-south and its breadth is
about 50 feet east-west, from the suit house. There are many
houses to the north of the suit house upto Fuwara Chowk, From H
772 SUPREME COURT REPORTS [2018] 13 S.C.R.
A Chowk, another tar-road which is in east-west direction passes to
the west and after about 500 feet distance in separate locality of
Cir. No.2 is a Hanuman Temple which has no connection to the
suit house in Cir. No.3 Nagpur. Both are different localities.
(g) It is denied that the defendants occupied the suit house about
B 12 years back as tenants from from former trustees or paid rent,
as alleged. It is denied that the defendant occupied the suit house
with any alleged permission of any alleged former trustee on rent
of Rs.110/- per month. The defendants are occupying the suit
house as of right and are in continuous possession for more than
30 years as stated earlier openly, exclusively, peacefully peaceably,
C without interruption or disturbance from any one or from any
alleged trustees and none of them have been in possession during
such period. The defendant No.1 is about 83 years old.
Defendants are ‘Pullarwar’. The suit house is not property of the
plaintiff nor a public Trust property as is alleged. All the alleged
D Public Trust proceedings of whatever nature were without
jurisdiction, null and void, under which the plaintiffs are trying to
lay a claim to the suit house. There was no house No.55 alleged
to the suit house; nor this was changed as House No.878. the
plaintiffs’ alleged claim for the suit house does not stand in fact or
law as contended. In none of the alleged proceedings the
E defendants were made parties, nor noticed.”
In view of the rival pleadings, the Trial Court framed in all 11 issues,
which read thus:
“1) Do the plaintiffs prove the title of plaintiff No.1 to the suit
F house?
2) Do they prove that the deft. No.2 was occupying the same as
a tenant?
3) Are the plffs. entitled to the occupation charges at the rate of
Rs.110/-p.m.?
G 4) Whether the Charity Commissioner has declared that the suit
house is trust property?
5) Does the deft. No.1 prove that he is occupying the suit house
for more than 30 years and perfect his title by adverse
Possession?
H
VIJAY PULLARWAR v. SHRI HANUMAN DEOSTHAN, 773
A PUBLIC TRUST [A. M. KHANWILKAR, J.]
6) Do the defts. Prove that the house belongs to Mahadeo Domaji A
Kuthe?
7) Are the plffs. entitled to the possession?
8) What order and decree?
Additional Issues:
9) Whether the house in suit was a Math? B
10) Whether the document dated 3.5.46 is null and void
11) Whether the proceedings under the Bombay Public trust Act
are without jurisdiction?”
10. Both sides produced documentary as well as oral evidence in
C
support of their respective stands, which was duly considered by the
Trial Court vide judgment and order dated 16th November, 1983. The
Trial Court accepted the claim of the plaintiffs/respondents that the “suit
house” (i.e. H.No.878) was the property of the public trust, namely, Shri
Hanuman Deosthan and the management of the property vested in the
said trust. Further, the defendants/appellants had no right to occupy the D
suit house despite the Trial Court having found that they were occupying
the same for over 30 years before the institution of the suit. On this
finding, the Trial Court partly decreed the suit by directing the defendants/
appellants to hand over vacant possession of the suit house to the plaintiffs/
respondents, while rejecting their claim for occupation charges. The
E
operative order passed by the Trial Court reads thus:
“ORDER
The Plaintiff’s suit is decreed partly with proportionate costs.
The defendants shall deliver vacant possession of the suit premises
to the plaintiff. F
The Plaintiffs claim for occupation charges is dismissed.
An inquiry for future mesne profits under order 20, rule 12 Civil
Procedure Code shall be carried separately.
Decree be drawn accordingly in terms of the above order.”
11. The appellants being aggrieved, filed Regular Civil Appeal
No.564 of 1983 before the District Court at Nagpur. The District Court, G
after re-appreciating the oral and documentary evidence, was pleased
to reverse the finding of facts recorded by the Trial Court and instead,
concluded that the “suit house” (i.e. H.No.878) was not the registered
property of Shri Hanuman Deosthan, a public trust duly registered under
the 1950 Act. H
774 SUPREME COURT REPORTS [2018] 13 S.C.R.
A 12. The First Appellate Court considered the efficacy of the oral
evidence adduced by the plaintiffs/respondents to establish its title in the
suit house as also the documentary evidence. As regards the oral
evidence, it found that the same was hopelessly poor and of persons
who had no knowledge as to how Shri Hanuman Deosthan trust was
constituted. Similarly, these persons had no knowledge whatsoever about
B
saint Haridas Baba whose Padukas had been installed in the suit house.
The person who could have spoken about those matters, namely Ramjiwan
Kaluram, though available at the relevant time, was not examined as a
witness, for reasons best known to the plaintiffs/respondents. While
dissecting the documentary evidence relied upon by the parties in support
C of their claim, the appellate court in paragraphs 10 to 12 observed thus:
“10. Even if for the sake of argument, Exh.41 is
admitted in evidence and presumed that such a document
was executed by Yashodabai, this document does not
support the Plaintiffs. I will point out the help of other
D documents to show that this particular document Exh.41
pertains to the suit property but this suit property was never
treated as property of the Plaintiff Trust since 1953 till this
litigation started.
11.Exh.63 is the certified copy of the application, dated 31st August,
E 1953 filed by Chhotelal before the Registrar of the Public Trusts
for registration as per order below Exh.42. In this application
Chhotelal had shown two temple and a house No.374 and a house
No.369 of Circle No.2 and one house No.55 of Circle No.3 as the
property of the said trust and this property was recorded in the
register of the property of the Public Trust maintained under the
F M.P. Public Trust Act. Exh.64 is application dated 13th September,
1961 filed by Chhotelal for change report. In this also the same
property has been shown as property of the said trust. After death
of Chhotelal an application was made to the Deputy Charity
Commissioner for framing a scheme for the management of the
G trust. After holding enquiry the learned Deputy Charity
Commissioner passed an order, dated 4th April, 1975 framing a
scheme Exh.46 is a certified copy of that order. Annexure A to
this order shows the property of the trust in the register of the
Deputy Charity Commissioner. It means the two houses in Circle
No.2 and a house No.55 of Circle No.3 were the only properties
H
VIJAY PULLARWAR v. SHRI HANUMAN DEOSTHAN, 775
A PUBLIC TRUST [A. M. KHANWILKAR, J.]
of the trust even in 1975 when the scheme for management of A
the trust was framed and when the present trustees were appointed.
12. The Defendants have throughout maintained that the plaintiff
Trust has nothing to do with a suit house bearing Municipal No.152
situated in Circle No.3. In support of this, they have produced
documents Exhs.56, 57 and 58 which are the certified copies of B
the relevant entries in the assessment register of the Municipal
Corporation. I am told that the document Exh.56 was in more
than one page but in the original record there appears only one
page of the Assessment Register and it is incomplete. Therefore,
today the Defendants have produced another certified copy of
the same record and it is Exh.20. This record goes back to 1910- C
11. It appears that originally the house of Haridas Bairagi was
given Municipal No.443. It was situated in Circle No.3 In 1914-
15 house number was changed to 492. In 1922-23 it was given
house No.104. In 1947 to 1950 its house number was 878. In
1957-58 it was house No.598 and it continued to be house No.598 D
till it was changed to 521 in 1973-74 and it continued to be house
No.152 till the institution of the present suit. From this record it
would be clear that during 1947 to 1950 its house number was
878. Exh.41 the document purporting to have been executed by
Yashodabai also shows that the document was executed pertaining
the house No.878 belonging to Haridas Baba. As per this record, E
number of this house continued to be 878 till 1957-58 when the
number was changed to 598, while in 1953 and again in 1961.
Chhotelal had shown house No.55 of Circle No.3 as a property of
Hanuman Deosthan. In this suit we are not concerned with the
other properties of Hanuman Deosthan situated in Circle No.2 F
Exh.57 and 58 is the record pertaining house No.55 of Circle
No.3. this record shows that house No.55 of Circle No.3 was the
property of temple of Radhakishna and Ganpati and on behalf of
that Temple one Ramlal Munnalal Halwai was shown to be
proprietor. This record is available from 1947 onwards. This
particular property bears house No.55 from 1947 till 1961-62. G
From this it is clear that the house No.55 of Circle No.3 is
totally different from the suit house which was the property
of Haridas Bairagi. It is fairly conceded before me by Mr.
Ghatpnde that temple of Radhakrishna and Ganpati may be
H
776 SUPREME COURT REPORTS [2018] 13 S.C.R.
A different institution than the property of Haridas Baba. In
1952 when for the first time Hanuman Deosthan was
registered as trust on application of Chhotelal, house No.55
was different from the suit house which was bearing No.878
at that time. It is conceded that there is no documentary
evidence to establish that the suit house was the property
B
of the Plaintiff Trust.”
(emphasis supplied)
13. The aforesaid view taken by the First Appellate Court and, in
particular, the findings of fact recorded on material issues came to be
C reversed by the High Court in the second appeal, filed by the respondents.
Initially, the said Second Appeal No.364 of 1990, was allowed by the
High Court of Judicature at Bombay at Nagpur, without framing any
substantial question of law, vide judgment and order dated 29th March,
2004. That judgment was set aside by this Court on 17th December,
2004 in SLP (C) No.10181/2004, at the instance of the defendants/
D appellants. The parties were relegated to the High Court for fresh
consideration of the second appeal. The learned Single Judge of the
High Court hearing the remanded appeal adverted to two substantial
questions of law as formulated in paragraph 7 of the impugned judgment,
which read as follows:
E “1. Whether the findings recorded by the authorities under the
Bombay Public Trusts Act about the existence of the trust and
the trust property were final and conclusive and/or whether the
appellate Court had justification to hold that the suit property did
not belong to the trust?
F 2. Whether the admission of the defendants that the suit property
was originally owned by Haridad Baba and that they had entered
in possession thereof in the capacity of caretaker of the suit
property were binding on the defendants so as to establish that
the property in question was part of the property originally owned
by Haridas Baba with respect to which the public trust was
G
created?”
14. By the impugned judgment and order dated 24th October, 2008,
the High Court allowed the second appeal preferred by the plaintiffs/
respondents and restored the decree of possession passed by the Trial
Court. The High Court first analysed the pleadings and noted that the
H
VIJAY PULLARWAR v. SHRI HANUMAN DEOSTHAN, 777
A PUBLIC TRUST [A. M. KHANWILKAR, J.]
defendants/appellants in no uncertain terms admitted that saint Haridas A
Baba is the owner of the suit house and that his Padukas were installed
in the suit house and were worshiped by his disciples. It then found that
it was common ground that Haridas Baba was the original owner of the
suit house and his disciples were taking care of the Math after his death.
The High Court further noted that Bansilal never claimed to be the owner
B
of the suit house but only a trustee, who directed Smt. Yashodabai to
appoint a panch committee to look after the affairs of the Math if need
be. The panch committee appointed by Smt. Yashodabai was nothing
but a board of trustees, as was evident from the document creating the
panch committee dated 23rd May, 1946 (Exh.41).
15. The High Court then noted that the defendants’ witness DW- C
1 Vijay in his evidence admitted that the ownership of the suit house was
of Haridas Baba and that the defendants/appellants, along with other
family members, were living therein as disciples of Haridas Baba and
did not set up title in themselves at all. It appears that Haridas Baba,
who was the owner of the suit house, dedicated the property and created D
a private trust, which fact has been admitted by the defendants/appellants
in the written statement. On that basis, the High Court went on to conclude
that the defendants/appellants admitted that the suit house was a trust
property and therefore, it must be assumed to have been dedicated by
Haridas Baba. After having said this, the High Court then went on to
examine the question as to whether the suit house was a property belonging E
to Shri Hanuman Deosthan, a public trust. While considering this issue,
the High Court took note of the fact that the registered property of the
Hanuman Deosthan public trust did not include the description of the
suit house namely House No.878 in Circle No.3. The suit house belonging
to the public trust was registered as House No.55 in Circle No.3. The F
High Court “assumed” this to be a case of mis-description of the trust
property in the register of the public trust. Accordingly, the finding of
fact recorded by the First Appellate Court on material issues came to be
reversed by the High Court on the following reasoning:
“13. We have already seen that defendants do not deny the G
description of the suit property. They do not say that they are in
possession of any other property than the suit property. They admit
that suit property was owned by Haridas. I have already quoted
the evidence of D.W.1 Vijay in verbatim in which he admits that
the assessment list Exh.56 is in respect of the suit house. Exh.56
H
778 SUPREME COURT REPORTS [2018] 13 S.C.R.
A shows that house was recorded in the name of Haridas. In
examination-in-chief Vijay admits that the house number of the
suit property is 492. Defendant No.1 had made an application to
the Municipal Council vide Exh.75. He raised an objection to
recording the name of Hanuman Deosthan as owner in the
Municipal records. He claimed that he was the Wahiwatdar and
B
was paying taxes and also brought to the notice of the Municipal
Council that this house is not entered in the register of public
trust. He also alleges that name of the trust is changed from
Haridas to Hanuman Deosthan and that the old name be retained.
This clearly goes to show that defendants in fact knew that the
C suit house belongs to Hanuman Deosthan Trust. It is registered in
the Municipal Record as such and he wanted that name of the
Hanuman Deosthan be removed and that he was ready to pay
the taxes. All this evidence clearly goes to show that the defendants
know that the suit property is entered in the name of plaintiff trust
and they are claiming possession of that property alone. With this
D
document there is no manner of doubt that the suit property is
owned by the plaintiff public trust. Defendants admission must
bind them. The learned Judge of the first appellate Court did not
consider the evidence in proper perspective. He erred in negativing
the claim of plaintiff because the correct description of the suit
E property is not given in the trust register. He should have
independently considered if the suit property is owned by plaintiffs.”
16. The High Court then negatived the preliminary objection that
the entire appeal had abated as the legal representatives of legal
representative Nos. 1 and 2 of the deceased defendant No.1 were not
F brought on record. The High Court took the view that since the stand of
the defendant No.1 was that he was occupying the suit house only as
Wahiwatdar, his rights as Wahiwatdar ended upon his death. For, the
right of Wahiwatdar could not be claimed as hereditary. The High Court
thus concluded that the appeal filed by the plaintiffs/respondents could
still proceed on the aforesaid basis. Accordingly, the High Court reversed
G the decision of the First Appellate Court and restored the decree passed
by the Trial Court for delivery of possession of the suit house by the
defendants/appellants to the plaintiffs/respondents. This decision is the
subject matter of the challenge in the present appeal.
H
VIJAY PULLARWAR v. SHRI HANUMAN DEOSTHAN, 779
A PUBLIC TRUST [A. M. KHANWILKAR, J.]
17. We have heard Mr. Gagan Sanghi, learned counsel appearing A
for the appellants and Mr. D.K. Sinha, learned counsel appearing for the
respondents.
18. The moot question is: whether the High Court exceeded its
jurisdiction under Section 100 of the Code of Civil Procedure in reversing
the judgment and decree passed by the First Appellate Court on the B
basis of independent findings and reasons recorded by it, and moreso,
not specifically answering the substantial questions of law formulated
for its consideration. If it were to answer the substantial questions of
law in seriatim, perhaps the conclusion would have been completely
different.
C
19. Reverting to the first substantial question of law, the factum
of existence of the trust and the trust property is a matter of enquiry for
registration envisaged under Section 19 of the 1950 Act, which reads
thus:
“19. Inquiry for registration : D
On the receipt of an application under section 18, or upon on
application made by any person having interest in a public trust or
on his own motion, the Deputy or Assistant Charity Commissioner
shall make an inquiry in the prescribed manner for the purpose of
ascertaining: E
(i) whether a trust exists and whether such trust is a public
trust,
(ii) whether any property is the property of such trust,
(iii) whether the whole or any substantial portion of the subject
F
-matter of the trust is situate within his jurisdiction,
(iv) the names and addresses of the trustees and manager of
such trust,
(v) the mode of succession to the office of the trustee of such
trust, G
(vi) the origin, nature and object of such trust,
(vii) the amount of gross average annual income and expenditure
of such trust, and
H
780 SUPREME COURT REPORTS [2018] 13 S.C.R.
A (viii) any other particulars as may be prescribed under sub-section
5 of section 18.”
(emphasis supplied)
20. Clause (i) of Section 19 is about an enquiry of a fact as to
whether a trust exists and whether such trust is a public trust. Clause (ii)
B is an enquiry about whether any (stated) property is the property of such
trust. On completion of such enquiry, the competent authority is required
to record its findings with the reasons therefor, in terms of Section 20 of
the 1950 Act. After complying with the prescribed formalities by the
applicant and upon the findings so recorded during the enquiry becoming
C final, the said authority is obliged to make entries in the register kept for
that purpose as per Section 21(1) of the 1950 Act. Such entries become
final and conclusive, subject to any change to be recorded. This is
predicated under Section 21(2) of the 1950 Act. Further, Section 79 of
the same Act may be of some relevance. The same reads thus:-
D “79. Decision of property as Public trust property
(1) 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
on the Charity Commissioner in appeal as provided by this Act.
E (2) The decision of the Deputy or Assistant Charity
Commissioner or the Charity Commissioner in appeal, as
the case may be, shall, unless set aside by the decision of
the Court on application or of the High Court in appeal be
final and conclusive.”
F (emphasis supplied)
This Court in Church of North India Vs. Lavajibhai Ratanjibhai and
Others 1 has noted that the 1950 Act provides for finality and
conclusiveness of the order passed by the Charity Commissioner in
Sections 21(2), 22(3), 26, 36, 41(2), 51(4) and 79(2). The Court relying
G on Dhulabhai and Others Vs. The State of Madhya Pradesh and
Another2 expounded that such finality clause would lead to a conclusion
that the civil court’s jurisdiction is excluded if there is adequate remedy
to do what the civil courts would normally do in a civil suit. The Court
1
(2005) 10 SCC 760
2
(1968) 3 SCR 662
H
VIJAY PULLARWAR v. SHRI HANUMAN DEOSTHAN, 781
A PUBLIC TRUST [A. M. KHANWILKAR, J.]
also held that the question as regards existence of a trust is a matter A
which squarely falls within the purview of the Act.
21. Furthermore, Section 80 of the 1950 Act posits a bar of
jurisdiction of the civil court to decide or deal with any question which by
or under the Act is to be decided or dealt with under the said Act. Section
80 of 1950 Act, reads thus: B
“80. Bar of jurisdiction :-
Save as expressly provided in this Act, no Civil Court shall have
jurisdiction 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 C
such officer or authority has been made final and conclusive.”
22. Even for filing a suit concerning the public trust, Section 50 of
the Act provides as under:
“50. Suit by or against or relating to public trusts or trustees D
or others
In any case,- -
(i) where is alleged that there is a breach of a public trust,
negligence, misapplication or misconduct on the part of a
trustee or trustees, E
(ii) where a direction or decree is required to recover
the possession of or to follow a property belonging or
alleged to be belonging to a public trust or the
proceeds thereof or for an account of such property
or proceeds from a trustee, ex--trustee, alienee, F
trespasser or any other person including a person
holding adversely to the public trust but not a tenant
or licensee,
(iii) Where the direction of the Court is deemed necessary for
the administration of any public trust, or 53 G
(iv) for any declaration or injunction in favour of or against
a public trust or trustee or trustees or beneficiary
thereof,
the Charity Commissioner after making such enquiry as he thinks
necessary, or two or more persons having an interest in case the suit is H
782 SUPREME COURT REPORTS [2018] 13 S.C.R.
A under sub- clauses ( i) to (iii) , or one or more such persons in case the
suit is under sub -clause (iv) having obtained the consent in writing of
the Charity Commissioner as provided in section 51 may institute a suit
whether contentious or not in the Court within the local limits of whose
jurisdiction the whole or part of the subject matter of the trust is situate,
to obtain a decree for any of the following relief’s :-
B
(a) an order for the recovery of the possession of such
property or proceeds thereof;
(b) the removal of any trustee or manager;
I the appointment of a new trustee or manager;
C (d) vesting any property in a trustee;
(e) a direction for taking accounts and making certain enquiries;
(f) an order directing the trustees or others to pay to the trust
the loss caused to the same by their breach of trust, negligence,
misapplication, misconduct or willful default;
D (g) a declaration as to what proportion of the trust property or
of the interest therein shall be allocated to any particular object
of the trust;
(h) a direction to apply the trust property or its income cy pres
on the lines of section 56 if this relief is 54 claimed along with
E any other relief mentioned in this section;
( I ) a direction authorising the whole or any part of the trust
property to be let, sold, mortgaged or exchanged or in any
manner alienated on such terms and conditions as the court
may deem necessary;
F (j) the settlement of scheme, or variation or alteration in a
scheme already settled,
(k) an order for amalgamation of two or more trusts by framing
a common scheme for the same;
(l) an order for winding up of any trust and applying the funds
G for other charitable purposes;
(m) an order for handing over of one trust to the trustees of
some other trust and deregistering such trust;
(n) an order exonerating the trustees from technical breaches,
etc;
H
VIJAY PULLARWAR v. SHRI HANUMAN DEOSTHAN, 783
A PUBLIC TRUST [A. M. KHANWILKAR, J.]
(o) an order varying , altering, amending or superseding any A
instrument of trust;
(p) declaring or denying any right in favour of or against, a
public trust or trustee or trustees or beneficiary thereof an
issuing injunctions in appropriate cases; or
(q) granting any other relief as the nature of the case may B
require which would be a condition precedent to or
consequential to any of the aforesaid relief’s or is necessary
in the interest of the trust:
Provided that no suit claiming any of the reliefs specified in
this section shall be instituted in respect of any public trust, C
except in conformity with the provisions thereof;
Provided further that, the Charity Commissioner may instead of
instituting a suit make an application to the Court for a variation or
alteration in a scheme already settled :
Provided also that, the provisions of this section and other
D
consequential provisions shall apply to all public trusts, whether
registered or not or exempted from the provisions of this Act under
sub-section (4) of section 1.”
(emphasis supplied)
And again Section 51 provides as under:
E
“51. Consent of Charity Commissioner for institution of suit
(1) If the persons having an interest in any public trust intend
to file a suit of the nature specified in section 50, they shall apply
to the Charity Commissioner in writing for his consent. If the
Charity Commissioner after hearing the parties and making such F
enquiries (if any) as he thinks fit is satisfied that there is a prima
facie case, he may within a period of six months from the date on
which the application is made, grant or refuse his consent to the
institution of such suit. The order of the Charity Commissioner
refusing his consent shall be in writing and shall state the reasons
for the refusal. G
(2) If the Charity Commissioner refuses his consent to the
institution of the suit under sub-section (1) the persons applying
for such consent may file an appeal to the Division Commissioner
in the manner provided by this Act.
H
784 SUPREME COURT REPORTS [2018] 13 S.C.R.
A (3) In every suit filed by persons having interest in any trust under
section 50, the Charity Commissioner shall be a necessary party.
(4) Subject to the decision of the Divisional Commissioner
in appeal under section 71, the decision of the Charity
Commissioner under sub section (1) shall be final and conclusive.”
B (emphasis supplied)
Indubitably, the present suit is a suit for recovery of possession of the
subject property on the basis of title claimed therein by the plaintiffs/
respondents and being a property of the trust. However, the procedure
envisaged under Sections 50 and 51, obviously, has not been complied
C with. For, such permission has not been produced nor adverted to by the
courts below.
23. Be that as it may, as the plaintiffs/respondents have claimed
title in the suit property, that claim could be answered on the basis of the
registration application of the trust, and schedule I regarding the registered
D properties of the trust. Whether the property is a property of the trust
and including the question as to whether it should be so recorded as the
property of the trust, is a matter exclusively within the domain of the
Charity Commissioner.
24. In the present case, the registration application preferred by
E Chotelal unambiguously records House No.55 in Circle No.3 as being
used for performing pujas in the temple. The temple name is mentioned
as Shri Hanuman Deosthan. There is no reference in the application or
in schedule I recording the properties of the stated public trust to include
the “Padukas of Haridas Baba” installed in House No.878 in Circle
F No.3. Concededly, no evidence is forthcoming to show that Hanuman
Temple exists in House No.878 in Circle No.3 which is in possession of
the defendants/appellants.
25. Suffice it to observe that the application for registration of the
public trust submitted by Chotelal on 31st August, 1953 (Exh.63), the
subsequent application for registration submitted by him under the
G
provisions of the 1950 Act dated 13th September, 1961 (Exh.64), the
schedule I recording properties of the plaintiff public trust (Exh.43), the
enquiry report dated 13th October, 1954 (Exh.42), and the application for
framing of the scheme and the order passed by the Charity Commissioner
dated 4th April, 1975 (Exh.46), none of these document mention about
H
VIJAY PULLARWAR v. SHRI HANUMAN DEOSTHAN, 785
A PUBLIC TRUST [A. M. KHANWILKAR, J.]
“Padukas of Haridas Baba” installed in House No.878 or refer to House A
No.878 in Circle No.3 being the trust property; but instead, make specific
reference to House No.55 in Circle No.3, which is a completely different
property. Notably, these documents also do not advert to the document
dated 23rd May, 1946 (Exh.41), purportedly executed by Smt. Yashodabai
allegedly creating a Panch Committee in respect of the suit House No.878
B
in Circle No.3. The finding of fact recorded by the First Appellate Court
regarding the two properties and, more particularly, analysis in paragraphs
11 & 12 of its judgment (reproduced in paragraph No. 12 herein above),
have been brushed aside by the High Court on the specious asumption
that it is a case of mis-description of the property in the official register
of public trust. That, however, was not the case pleaded much less proved C
by the plaintiffs/respondents. Such finding recorded by the High Court is
a case of manifest error or error apparent, if not perverse. The High
Court could not have disregarded the registration application and the
description of the house number given in schedule I as the registered
property of the public trust, which is House No.55 in Circle No.3. It was
D
for the plaintiffs/respondents to plead and prove that House No.55 shown
in schedule I as property of the plaintiff trust is the same as House
No.878 in Circle No.3, which description has been given in the plaint as
the suit house. Having failed to establish that fact, no fault can be found
with the finding recorded by the First Appellate Court, that Shri Hanuman
Deosthan, a public trust, had no causal connection with House No.878 E
in Circle No.3 occupied by the defendants/appellants. Thus, it must
necessarily follow that the suit for possession (of House No.878 in Circle
No.3) instituted by the plaintiffs/respondents on the basis of title, was
devoid of merits.
26. We have no hesitation in upholding the finding of fact recorded F
by the First Appellate Court that the suit house occupied by the
defendants/appellants was recorded in the Municipal records during 1947
to 1950 as House No.878 belonging to Haridas Baba and that number
was changed to House No.521 in 1973-74 and converted to House
No.152 till the institution of the present suit. Further, it is clear that House
No.55 in Circle No.3 is entirely a different property. That has been G
registered as the trust property of Shri Hanuman Deosthan public trust,
initially at the instance of Chotelal and then continued to be shown as a
registered property of the plaintiff trust until the institution of the suit.
Such registration by the authorities under the 1950 Act would bind the
H
786 SUPREME COURT REPORTS [2018] 13 S.C.R.
A plaintiffs/respondents. The plaintiffs/respondents have not been able to
produce any documentary evidence to establish the fact that the suit
house (bearing House No.878 in Circle No.3, which later on became
House No.152 in Circle No.3 by the time the suit was instituted), was
the property of the plaintiff trust. The concomitant of such a conclusion
is to dismiss the suit.
B
27. It is not necessary for us to dilate on every aspect dealt with
by the First Appellate Court or for that matter, the High Court, for
answering the substantial question of law under consideration. We affirm
the conclusion reached by the First Appellate Court that the plaintiff
trust had failed to produce any documentary evidence to substantiate
C the fact that suit House No.878 in Circle No.3 was the registered property
of the plaintiff trust and that the registered property of the plaintiff trust
bearing House No.55 in Circle No.3, is the same house in possession of
the defendants/appellants. Pertinently, the latter property was not owned
by Haridas Baba but belonged to one Ramlal Munnalal Halwai, having a
D temple of Radhakrishna and Ganpati. Further, the documentary evidence
produced by the plaintiffs/respondents would, at best, establish the fact
that Shri Hanuman Deosthan has been registered as a public trust and
owns the property referred to in schedule I against its name (i.e. House
No.55 in Circle No.3). Thus, the property registered as belonging to the
plaintiff trust was other than suit house bearing No.878 in Circle No.3.
E For all these reasons, the First Appellate Court was justified in answering
the principal issue against the plaintiff trust.
28. That takes us to the second substantial question of law
formulated by the High Court for its consideration. The High Court has
adverted to the relevant portion of the written statement to conclude
F that the defendants/appellants had admitted that the suit property was
originally owned by Haridas Baba and that they were in possession in
the capacity of caretakers only. Indeed, that admission can be discerned
from the written statement of the defendants as well as the oral evidence
of DW-1. But that admission does not take the matter any further. It is
G not possible to assume on the basis of that admission that the “suit house”
(i.e. House No.878 in Circle No.3) is the property of the plaintiff trust.
No documentary evidence has been produced by the plaintiffs/
respondents to establish the fact that the suit house bearing House No.878
in Circle No.3 originally owned by Haridas Baba was recorded as the
property of the plaintiff trust in the official records. The plea taken by
H
VIJAY PULLARWAR v. SHRI HANUMAN DEOSTHAN, 787
A PUBLIC TRUST [A. M. KHANWILKAR, J.]
the defendants in the written statement, however, is indicative of the A
fact that they (defendants/appellants) were occupying House No.878 in
Circle No.3, which was originally owned by Haridas Baba and where
his Padukas had been installed. The written statement as well as the
oral evidence of defendants/appellants clearly refute the claim of the
plaintiffs/respondents. In that, the trust named as Shri Hanuman Deosthan
B
has been registered in reference to some other properties and for
performing puja with the object of maintaining Hanuman Deosthan temple
in House No.55 in Circle No.3. We also find that the High Court has
selectively adverted to portion of the written statement [sub-paras (b) to
(d) of paragraph 11 thereof] and not to the other portion of the same
paragraph, namely sub-paras (e) to (g) (reproduced in paragraph 9 C
hereinabove) which put across the stand of the defendants/appellants
including that the plaintiff trust has no causal connection with the suit
house bearing No.878 in Circle No.3.
29. Needless to observe that the plaintiffs/respondents were
primarily obliged to establish their title in the suit house bearing No.878 D
in Circle No.3 where the Padukas of Saint Haridas Baba have been
installed, as being the property of the plaintiff trust. The plaintiffs must
succeed or fail on the title they establish; and if they fail to do so, they
must fail to get the relief of possession irrespective of title of the defendant
in the suit property (See Brahma Nand Puri Vs. Naki Puri3 and
Bajaranglal Shivchandrai Ruia Vs. Shashikant N. Ruia and Ors.4). E
In the present case, no tangible evidence regarding title of plaintiff trust
in the suit house (House No.878 in Circle No.3) is forthcoming.
30. The High Court has also adverted to the so-called admission
given by DW-1 Vijay, noted in paragraph No.12 of the impugned judgment.
In our opinion, the High Court has completely misread the said admission. F
Inasmuch as, all it says is that the house number had changed every four
years after revaluation. Further, the suit house is in Circle No.3. This is
spoken by the witness (DW1), in response to the question posed to him
about the change of Circle. He then admits that since 1910, the suit
house was owned by Haridas Bairagi. We fail to understand as to how G
this admission can be of any avail to the plaintiffs much less to hold that
the plaintiff trust has title in the suit house bearing House No.878 in
Circle No.3.
3
(1965) 2 SCR 233
4
(2004 (5 SCC 272
H
788 SUPREME COURT REPORTS [2018] 13 S.C.R.
A 31. Much ado was made about the contents of a communication
sent by defendant No.1 to the Mayor of Nagpur Municipal Corporation
(Exh.75). The same reads thus:
“Exhibit-75
To,
B The Mayor, Nagpur Municipal Corporation
Wasudeorao Maniramji Pullarwar,
Occupier Baba Haridasji Math,
House No.152, Ward No.6 New Ward
No.16, S. No.03, New Shukrawari,
C Fawara Chowk, Medical Road, Nagpur. …..Applicant
Subject: Objection to mutation on house No.152, Ward No.16
circle No.03, New SShukrawari, Fawara Chowk, Medical Road,
Nagpur.
D Sir,
With respect, it submitted that house no.152, Ward No.16 New
Shukrawari Nagpur is recorded in the name of Baba Haridas
Math in the Nagpur Municipal Corporation assessment register
for the last 70 years. The applicant is the disciple of Baba Haridas
E for the last 60 years and is in possession and occupation of it for
last 30 years. He is looking after the Math and performing pooja/
ustsav on yearly basis (yearly Utsav). I am paying the taxes of
the said math for the last 30 years as occupier and user. The
receipts to that effect are with me. The demand bill for the year
F 1978-79 for taxes is given to the applicant. From that it has come
to the knowledge of the applicant that the said house is recorded
in the name of “Shri Hanuman Deosthan Trust”. Then it is
mentioned that the said change is as per the decision of Learned
Charity Commissioner, Mumbai dated 4.4.1975 and the same is
recorded on 15.7.1976 in the name of Hanuman Deosthan Trust.
G However, in the office or register of Charity Commissioner,
Mumbai or Deputy Charity Commissioner, Nagpur dated 4.4.1975,
there is no reference/mention about Shri Haridas Baba Math,
House No.152, Ward No.16, Circle No.3, New Shukrawari,
Nagpur nor there is any reference in the copy received by me.
H
VIJAY PULLARWAR v. SHRI HANUMAN DEOSTHAN, 789
A PUBLIC TRUST [A. M. KHANWILKAR, J.]
Hence, the Hanuman Deosthan Trust has got the name A
changed from Haridas Baba Math to Hanuman Deosthan Trust
by keeping the tax department in the dark, fraudulently. The change
is recorded by the assessment department of the Nagpur Municipal
Corporation without consulting or asking the applicant. The said
change is not acceptable to the applicant.
B
Hence, the original name of Baba Haridas Math should be
maintained. Accordingly, the applicant is ready to pay the taxes
as earlier.
Also the Hanuman Deosthan Trust has got the change done
by keeping the Corporation in the dark. It has no relation with the C
math.
Hence, the name of the said Trust be removed and original
name of Baba Haridas Math be maintained. The applicant be
given opportunity to produce his documents and say before
yourself. D
Nagpur
Dated: 17.3.1980 Sd/-Wasudeo Pullarwar
Applicant”
We fail to understand as to how this communication can be used as an
admission of the defendants much less of having accepted the title of E
the plaintiff trust in the suit House No.878 (renumbered as House No.152),
in Circle No.3. On the other hand, it is a representation made to assail
the unilateral alteration of mutation entry in favour of Shri Hanuman
Deosthan Trust in violation of principles natural justice.
32. Suffice it to observe that even the second substantial question F
of law must be answered against the plaintiffs and in favour of the
defendants/appellants.
33. Taking any view of the matter, we have no hesitation in
upholding the conclusion recorded by the First Appellate Court that the
suit filed by the plaintiffs/respondents for possession of the suit house is
G
devoid of merits and deserves to be dismissed.
34. Accordingly, this appeal succeeds. The impugned judgment
and order passed by the High Court dated 24th October, 2008 in Second
Appeal No.364 of 1990 is set aside and the judgment and decree passed
by the District Court Nagpur dated 21st January, 1989 in Regular Civil
H
790 SUPREME COURT REPORTS [2018] 13 S.C.R.
A Appeal No.564 of 1983, is restored. Thereby, the suit filed by the plaintiffs/
respondents bearing Special Civil Suit No.1127 of 1978 before the Court
of Civil Judge, Senior Division, Nagpur stands dismissed. No order as to
costs. Ordered accordingly.
B Kalpana K. Tripathy Appeal allowed.
C
D
E
F
G
H
Search Indian case law
Ask in plain English, not just keywords. 25,000 AI words free, no card.
Try "public trust"Sign in to search