At, High Court of Judicature at Bombay
By, THE HONOURABLE MR. JUSTICE P.S. SHAH
For the Petitioner: R.M. Agarwal, Advocate. For the Respondent: K.J. Abhyankar with S.S. Pandit, Advocate.
P.S. SHAH, J.
The short question that rises in this revision application is whether the Civil Court has jurisdiction to entertain the suit filed by the petitioners against the respondent, having regard to the provisions of section 50 read with section 80 of the Bombay Public Trust Act, 1950. The respondents had raised two preliminary objections to the maintianability of the suit in the trial Court. The first objection raised by the respondents was that the Civil Court had no jurisdiction to entertain the suit, in view of section 50 raised with section 80 of the Bombay Public Trust Act and the second objection raised was that the petitioners suit was not of a civil nature and hence could not be entertained, having regard to the provisions of section 9 of the Code of Civil Procedure. By its order dated October 24, 1977, the trial Court returned the plaint for presentations in proper Court under Rule 10 of Order VII of the Code of Civil Procedure. The petitioner, therefore, preferred an appeal. The learned District Judge also took the view that the suit was not maintainable as sanction of the Charity Commissioner for filling the suit as required by section 50 of the Public Trust Act was not obtained. He also held that the Civil Court had no jurisdiction to try and entertain the suit. It, however, does not appear from the judgment that there is any discussion on the question of jurisdiction of the Civil Court to try the suit. Having thus in concerned with the view taken by the trial Court, the learned District Judge dismissed the appeal and, therefore, the petitioners have filed this revision application.
2. On a reading of the plaint I find that the averments therein are somewhat vague. Broadly speaking the case of the petitioners seems to be that there are two families sin the villages viz. Ghadigaonkars and Sawants. The petitioners who belong to the Ghadigaonkars family filed the suit in a representative capacity against the respondent who are Sawants. It is common ground that the petitioners claim to be beneficiaries in respect of certain properties belonging to temples mentioned in the plaint which is a public trust. It is averred in the plaint that the family of Ghadigaonkar has the right to perform the usual ceremonies such as Pooja, Archa and also has the right to offer to the deity and also has the right to the possession and enjoyment of Devasthan properties viz. Survey Nos. 3, 4 and 87. The averments in the plaint further show that it is the case of the petitioners that the Sawant's family enjoyed similar rights in respect of other Devasthan properties and they have no right to interfere with the rights of the petitioners in respect of Devasthan properties and the temples mentioned in the plaint.
3. Now, turning to section 50 of the Bombay Public Trusts Act, we are concerned with Clause (iv) read with Clauses (a) and (p). Section 50 is so far as it is relevant for the purpose runs thus;
"50. In any case :---
(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, allenee, trespasser or any other person including a person holding adversely to the public trust but not a tenant or licensee,
(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 inquiry as he thinks necessary, or two or more persons having an interest in case the suit is 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 contentions 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 reliefs :--
(a) an order for the recovery of the possession of such property or proceeds thereof;
(b) declaring or denying any right in favour of or against a public trust or trustee or trustees or beneficiary thereof and issuing injunctions in appropriate cases; or"
4. On the averments in the plaint it is obvious that the suit would fall under Clause (iv) read with Clauses (a) and (p) mentioned above. The suit is for the declaration of rights in favour of the petitioners who claim to be either trustees or beneficiaries thereof. It would also fall under Clause (ii) because virtually they claim right to possession of the proceeds of the public trust against the respondents who, according to the petitioners have no right to the same. Consequently, the reliefs claimed for also fall under Clauses (a) and (p) quoted above. The plaint read as a whole clearly shows that the petitioners want a declaration of their rights in their favour either as beneficiaries or trustees of the public trust and are seeking injunction against the respondents denying right in them. It is true that the public trust is not registered, but the third proviso to section 50 is clear on the point because, according to the proviso, the provisions of the section applied to all public trusts whether registered or not. The courts below were, therefor
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e, justified in holding the suit to be not maintainable for want of consent of the Charity Commissioner as required by the provisions of section 50. The learned District Judge has not considered the question as to whether the suit is of a civil nature, although as I have stated above, was recorded a finding that the suit is not of a civil nature. 5. In the view that I have taken, on the applicability of section 50, I do not think it necessary to go into the other question. In the result, the revision application fails. Rule discharge with no order as to costs. Application fails.