w w w . L a w y e r S e r v i c e s . i n



Shri Jin Kushal Guru Prachin Dadawadi Bhaktjan Samiti, Fatehsagar, Jodhpur v/s Chetani Vyason Ki Bagichi Neelkanth Mahadev Trust, Jodhpur

    Civil Revision Petition No. 2 of 2009

    Decided On, 26 September 2011

    At, High Court of Rajasthan

    By, THE HONOURABLE DR. JUSTICE VINEET KOTHARI

    For the Petitioner: S.C. Maloo, Advocate. For the Respondent: Jagdish Vyas, Advocate.



Judgment Text

Vineet Kothari, J.

1. The defendant has approached this Court by way of present revision petition tinder Section 115 C.P.C. being aggrieved of the order dated 11.11.2008, whereby, the learned trial Court of Civil Judge (Jr. Div.), jodhpur City, jodhpur rejected the defendant's application under Order 14 Rule 2 C.P.C. read with Section 151 C.P.C. seeking to raise the jurisdictional question before the trial Court in respect of Eviction Suit No. 80/2000 - Chetani Vyason Ki Bagichi Neelkanth Mahadev Trust, Fatehsagar, Jodhpur v. Shri Jin Kushal Guru Pracheen Dadawadi Bhaktjan Samiti, Jodhpur, filed by the plaintiff respondent by framing additional issue for deciding the jurisdictional issue before hand since according to the defendant, the suit itself was not maintainable as barred by Sections 29 and 73 of the Rajasthan Public Trusts Act, 1959 (for short "the Act of 1959").

2. The learned trial Court had rejected the said application with cost of Rs. 200/- by the impugned order on the ground that issue Nos. 7-A, 7-B and 7-C are mixed questions of fact and law and, therefore, deserve to the decided only after evidence is led by the parties and hence application under Order 14 Rule 2 C.P.C. was liable to be rejected.

3. Mr. S.C. Maloo, learned counsel for the petitioner defendant submitted that the dispute is between the two public trusts namely; plaintiff-Chetani Vyason Ki Bagichi Neelkanth Mahadev Trust, Fatehsagar, jodhpur and defendant - Shri Jin Kushal Guru Pracheen Dadawadi Bhaktjan Samiti, jodhpur for which vide order dated 18.12.1996 in Case No. 11/1986 the Assistant Commissioner, Devasthan Department, jodhpur after holding due inquiry in terms of Section 18 of the Rajasthan Public Trusts Act, 1959, after contest put up by the present plaintiff, has clearly held in favour of defendant that the defendant - Shri Jin Kushal Guru Pracheen Jain Dadawadi existed on the said land in question ever since last more than 200 years viz. Samvat Year 1866 equivalent to Christian year 1809 and inter alia said Trust, which was registered as a Public Trust by the same order dated 18.2.1996 had a possessory title ever since on land measuring 24190 sq. ft. of land including said "pracheen Jain Dadawadi", whereas, the plaintiff Chetani Vyason Ki Bagichi Neelkanth Mahadev Trust, Fatehsagar, jodhpur only claimed possession of the land in question on which Neelkanth Mahadev temple was constructed for about 100 years ago i.e. after the said 'Dadawadi' came into existence in Samvat Year 1866 about 200 years back from now.

4. Learned counsel for the petitioner, Mr. S.C. Maloo further urged that while registering both the Public Trusts after holding inquiry that too upon a re

Please Login To View The Full Judgment!

mand by Commissioner, Devasthan Department, vide order dated 17.5.1993 in terms of Section 18 (2) of the Act of 1959, the present immovable property of the defendant Trust besides movable property was also determined to be belonging to the defendant Trust, namely 24190 sq. Ft. of land including the 'Jain Dadawadi' and, therefore, the present eviction suit filed by the plaintiff in respect of premises falling within the demarcated area belonging to defendant Trust itself under purported rent notes allegedly executed in favour of plaintiff on 19.10.1975 and 5.1.1978 by one Mr. Sardarmal Bhansali and Mr. Motimal Dhariwal said to be president of defendant Trust cannot be entertained in view of bar of jurisdiction of civil Court under Sections 29 and 73 of the Public Trusts Act of 1959 and since suit premises fall within the aforesaid 24190 sq. ft. of land of Shri Jin Kushal Guru Pracheen Dadawadi Bhaktjan Samiti, jodhpur, the plaintiff, Chetani Vyason ki Bagichi could not claim any possessory title or right as a landlord and, therefore, by way of filing eviction suit, the plaintiff seeks to really challenge the findings of Assistant Commissioner, Devasthan Department indirectly under Section 18 of the Public Trusts Act in the order dated 18.12.1996 against which, P6 appeal filed by the plaintiff - Chetani Vyason Ki Bagichi Neelkanth Mahadev Trust, Fatehsagar, jodhpur was also dismissed by the Commissioner, Devasthan Department on 12.8.1997 as time barred.

5. Learned counsel for the petitioner, Mr. S.C. Maloo also submitted that in an appeal filed by the plaintiff through one Mr. Gopal Vallabh Vyas, claiming to be representing the plaintiff Chetani Vyason Ki Bagichi Neelkanth Mahadev Trust, Fatehsagar, jodhpur against one Bhoormal Tatia, President of the defendant Trust, the District Collector, jodhpur in Appeal No. 5/1989 vide order dated 25.3.1996 had also held that the appellant therein, namely present plaintiff - Chetani Vyason Ki Bagichi Neelkanth Mahadev Trust, Fatehsagar, jodhpur was neither registered nor had any title over the said land in question and, therefore. they have no power connection in their name, therefore, the said Trust was not entitled to recover any power expenses from the respondent- the present defendant Public Trust.

6. Mr. S.C. Maloo, therefore, submitted that the present suit for eviction filed by the respondent plaintiff, which is nothing but indirectly a challenge to the entries made tinder Section 21 of the Public Trusts Act in the Register of Public Trusts in pursuance of the order dated 18.12.1996 of the Assistant Commissioner of Devasthan Department, itself is barred by law and consequently, the learned trial Court has failed to decide the said issue as a preliminary issue in terms of Order 14 Rule 2 C.P.C., requiring the trial Court to decide such issue relating to bar of jurisdiction in the suit created by any law for the time being in force and rejecting the suit No. 8012000 Itself at the threshold.

7. He also relied upon the decision of this Court in the case of Sharad Ktunar v. Raghuveer Singh and Anr., 2005(5) WLC 206 and Mahant Balak Das v. State of Rajasthan and ors., 2005 WLC (UC) 12.

8. On the other hand, Mr. Jagdish Vyas, learned counsel appearing for the respondent plaintiff submitted that the present eviction suit filed by the plaintiff is maintainable in the civil Court and in the order dated 18.12.1996 passed by the Assistant Commissioner, Devasthan Department, jodhpur, the said authority has observed in para 3 at page 3 that the question relating to title of the property could not be decided by the Assistant Commissioner, Devasthan Department and only the civil Court has the jurisdiction to decide the same and also the question as to whether relationship of landlord and tenant was existing between the parties or not is question which can be decided by the civil Court and, therefore, the order dated 18.12.1996 does not stand in the way of present eviction suit filed by the plaintiff and since the questions raised by the defendant are mixed questions of fact and law, the learned trial Court has rightly rejected the application of the defendant under order 14 Rule 2 C.Y.C. and no interference in the same is called for in the present revision petition. He has not cited any judgments in support of his arguments.

9. I have heard the learned counsels at length and perused the record of the case including the orders passed by the Assistant Commissioner, Devasthan Department on 18.12.1996 and other relevant orders and judgments cited at the bar.

10. The question of prime importance in the present case is as to whether the Eviction Suit No. 80/2000 filed by the plaintiff- Chetani Vyason Ki Bagichi Neelkanth Mahadev Trust, Fatchsagar, jodhpur is at all maintainable or not and whether civil Court has jurisdiction to try the said suit between two public trusts.

11. To appreciate the rival contentions, the scheme of the Public Trusts Act in this regard has to be understood. Chapter V of the Rajasthan Public Trusts Act, 1959, comprising of Sections 16 to 29, deals with registration of Public Trust. The Assistant Commissioner has been designated as person incharge of the Registration of all Public Trusts under Section 16 of the Act. Section 17 dealing with registration of public trusts provides for application to be moved by the concerned public trust and registration of said public trust after holding inquiry in the matter and Section 18 provides for such inquiry for registration and same being relevant for the present purposes, is reproduced hereunder for ready reference:

"18. Inquiry for registration.-(1) On receipt of an application under Section 17 or upon an application made by any person having interest in a public trust or on his own motion, the Assistant Commissioner shall make an inquiry in the prescribed manner for the purpose of ascertaining

(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 matter of the trust is situate within his jurisdiction.

(iv) the names and addresses of the working trustee and the manager of such trust;

(v) the mode of succession to the office of the trustee of such trust;

(vi) the origin, nature and object of such trust;

(vii) the amount of gross average annual income and expenditure of such trust; and

(viii) the correctness or otherwise of any other particulars furnished under sub-section (4) of Section 17.

(2) The Assistant Commissioner shall give in the prescribed manner public notice of the inquiry proposed to be made under sub-section (1) and invite all persons having interest in the public trust under inquiry to prefer within sixty days objection, if any, in respect of such trust."

Thus, Section 18 inter alia also includes determination of proprietary rights of movable and immovable properties of the Public Trusts under Section 18 (1) (ii) of the Act.

Section 19 stipulates that on completion of inquiry provided under Section 18, the Assistant Commissioner shall record his finding with the reasons therefor as to the matters mentioned in the said section. Section 20 provides for an appeal by any working trustee or person having interest in a public trust or in any property found to be trust property, being aggrieved by a finding of the Assistant Commissioner under Section 19, within two months from the date of its publication in the notice board of the Assistant Commissioner, before the Commissioner to have such findings set aside or modified.

Section 21 dealing with entries in the register stipulates that on the basis of findings recorded under Section 19 of the Act and decision of the Commissioner under Section 20 of the Act, if any, the entries relating to such public trust shall be made in the register to be maintained by Devasthan Department. Sub-section (2) of Section 21 categorically states that such entries so made shall be subject to other provisions of the Act and subject to any change recorded under any provision of the Act or rule made thereunder shall be final and conclusive.

Section 22 of the Act further provides that where any working trustee or person having interest in a public trust or in any property found to be trust property aggrieved by any entry made under Section 21 of the Act, may within six months from the date of publication thereof on the notice board of the office of Assistant Commissioner institute a suit in a civil Court to have such entry cancelled or modified. On the final decision of the suit, the Assistant Commissioner shall, if necessary, correct the entries made in the register in accordance with such final decision.

Section 23 of the Act permits changes in the register upon happening of certain events, which provision is not relevant to the present controversy.

Section 29 of the Act, which is reproduced hereunder, provides bar against suits by un-registered trust:

"29. Bar against suits by un-registered trust.-(1) No suit to enforce a right on behalf of a public trust which is required to be registered under this Act but has not been so registered shall be heard or decided in any Court.

(2) The provisions of sub-section (1) shall apply to claim of set off or other proceedings to enforce a right on behalf of such public trust."

Section 73 of the Act also bars jurisdiction of civil Courts and is reproduced hereunder for ready reference:

"73. 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 or in respect of which the decision or order of such officer or authority has been made final and conclusive."

12. This Court in Sharad Kumar v. Raghuveer Singh and Anr. (supra) held that the nature of suit has to be determined on the reading of the plaint as a whole and not on the basis of relief sought and so read the fact that the appellant also prayed for declaration of right to worship does not take the matter out of the pale of Section 73 read with the corresponding provisions of the Act and since the suit was filed basically seeking declaration of right to participate in the management of the temples as a trustee, the suit was barred in view of Section 73 of the Act, since in effect and substance, it was a challenge to the entry in the register of a public trust, it cannot be adjudicated upon by the civil Court except a civil suit filed in the prescribed manner and limitation under Section 22 of the Rajasthan Public Trusts Act. The relevant portion of the said judgment by the then Chief justice is reproduced hereunder for ready reference:

"6. From the aforementioned provisions, it is manifest that the Act provides for a complete mechanism for registration of public trusts and matters ancillary or incidental thereto.

7. Adverting to the instant case, it is not in dispute that the temples in question are registered public trust. Under Section 73 of the Act, as seen above, no civil Court has jurisdiction to decide or deal with any question which is by or under the Act to be decided or dealt with by any officer or authority under the Act or in respect of which the decision or order of such officer or authority has been made final and conclusive. I have no manner of doubt that the suit has been instituted, in effect and substance, challenging the entry in the Register of the Public Trusts which cannot be adjudicated upon by civil suit save in the manner and within the period prescribed under Section 22 of the Act. It is relevant to mention here that Section 44 of the Act excludes the applicability of Sections 92 and 93 of the C.P.C. and, therefore, the suit could not be entertained as representative suit under Section 92 of the code. As regards, the submission of the counsel that the appellant had also sought a declaration of his right to worship, it is true that such a relief does not fall within the ambit of the aforementioned provisions but it is well settled that nature of the suit has to be determined on reading of the plaint as a whole and not on the basis of relief sought. So read, the fact that the appellant also prayed for declaration of right to worship does not take the matter of the pale of Section 73 read with corresponding provisions of the Act. The suit was filed basically seeking a declaration of right to participate in the management of the temples as a trustee - a matter covered by the Act.

8. In the above premises, l find no error in the decision of the Court below rejecting the plaint under Order 7, Rule 11(d) of the Civil Procedure Code as barred by Section 73 of the Public Trusts Act.

9. Consequently, the appeal stands dismissed with no order as to costs."

13. Similarly, the Division Bench of this Court in Mahant Balak Das v. State of Raj. and Ors., 2005 WLC (UC) 12 held that when an entry made under Section 21 of the Act has not been challenged within six months from the date of entry, the only remedy is to file a civil suit in the civil Court under Section 22 (1) of the Public Trusts Act and the learned Commissioner of Devasthan Department could not direct such cancellation or modification of the entry. Paras 5 to 7 of the said judgment is reproduced hereunder for ready reference:

"5. When the entry made under Section 21 of the Act has not been challenged within six months from the date of the entry, the only remedy remains to file a civil suit for cancellation or modification of such entry. In view of this fact," the Commissioner, Devasthan has no power to entertain any application requiring modification or cancellation in the entry made under Section 21 of the Act. When he has no jurisdiction to cancel or modify the entry he can not give any direction to the Assistant Commissioner Devasthan.

6. In the result, we allow this appeal, set aside the order of the learned Single Judge as well as of the Commissioner Devasthan, who has sent the matter back to the Assistant Commissioner for a fresh order and also quash the proceedings pending before the Assistant Commissioner Devasthan in pursuant of the directions of the Commissioner Devasthan Deptt.

7. However, it is made clear that if the respondents have any grievance, they can file a civil suit in the civil Court in accordance with law as provided under sub-section (1) of Section 22 of the Act."

14. In the present case, the plaintiff has filed the eviction suit claiming eviction of the defendant from the room and other open land falling within the demarcated area of 24190 sq ft. of land itself, which was determined to be the property belonging to defendant Public Trust known as Shri Jin Kushal Guru Pracheen Dadawadi Bhaktjan Samiti, Jodhpur and entry of this property as Trust property has already been made in the Register of Public Trusts under Section 21 of the Act in pursuance of the order dated 18.12.1996 by the Assistant Commissioner of Devasthan Department despite contest put up by the present plaintiff Trust and against which an appeal filed by the present plaintiff - Chetani Vyason Ki Bagichi Neelkanth Mahadev Trust, Patehsagar, jodhpur was also dismissed by the Devasthan Commissioner on 12.8.1997 and thus, this eviction suit in effect and substance is an indirect way of challenging the said possessory title of the defendant Public Trust and particularly when the plaintiff Trust was also registered by the same order dated 18.12.1996 passed by the Assistant Commissioner, Devasthan Department with a different property adjacent to the demarcated portion of 24190 sq. ft. belonging to defendant Trust comprising of Neelkanth Mahadev Temple and Murli Manohar Temple and, therefore, apparently, the present eviction suit seeking to establish the landlord and tenant relationship on the basis of alleged rent notes dated 19.10.1975 and 5.1.1978 is nothing but seeking modification of the entry made under Section 21 of the Act through this indirect and circuitous method. There is no question of any portion of said Trust property comprised in demarcated area of 24190 sq. ft and entered as defendant Public Trust's property in the Register of Public Trust, being taken on rent by the defendant Trust itself, hence execution of alleged rent notes is of no consequence, as far as maintainability of present eviction suit is concerned, which in effect and substance is nothing but claiming ownership and tenancy rights over the land in question already belonging to and entered as defendant Trust's property ever since Samvat Year 1866. If the plaintiff - Chetani Vyason Ki Bagichi Neelkanth Mahadev Trust, Fatehsagar, jodhpur was claiming any right over the said portion of 24190 sq.ft. area belonging to defendant - Shri Jin Kushal Guru Pracheen Dadawadi Bhaktjan Samiti, jodhpur, which existed at least 100 years prior to admitted claimed possession of the plaintiff over the adjacent land and property comprising of Neelkanth Mahadev Temple and Shri Murli Manohar Temple the only course open to the plaintiff was to file a suit under the provisions of Section 22 of the Rajasthan Public Trusts Act and that is the only limited avenue available to a person aggrieved of any finding made tinder Section 19 of the Act based on inquiry held under Section 18 of the Act and consequential entries made under Section 21 of the Act in the register of Public Trusts.

15. In the opinion of this Court, there is a clear and categorical finding upon inquiry by the Assistant Commissioner, Devasthan Department that the land marked in red lines in the map Ex.3 admeasuring 24190 sq. ft. including the Pracheen Jain Dadabadi was found to be the property belonging to said public trust and such findings and consequential entry made tinder Section 21 of the Public Trusts Act cannot be challenged before the civil Court and no suit can be entertained by any civil Court with respect to same. The plaintiff Trust, on its own admission, did not have any title documents with respect to adjacent Neelkanth Mahadev Temple and Shri Murli Manohar Temple. Regarding the observations in para 3 of Assistant Commissioner in its order dated 18.12.1996 that Assistant Commissioner does not have the jurisdiction to decide the title or the relationship of landlord and tenant, since two rent notes, on the basis of which present eviction suit has been filed, namely rent note dated 1.1.1975 and 16.4.1978 were also produced before the learned Assistant Commissioner, Devasthan Department, the learned Assistant Commissioner has rightly observed that it is within the jurisdiction of civil Court. Obviously, the civil Court referred to by the learned Assistant Commissioner in the said para refers to the civil Court entertaining the suit tinder Section 22 of the Public Trusts Act and not otherwise. The observation of learned Assistant Commissioner, Devasthan Department, cannot confer jurisdiction upon the civil Court for trying the present eviction suit, if such jurisdiction is otherwise barred under Section 29 or 73 of the Act. Therefore, the contention of learned counsel for the plaintiff respondent, Mr. Jagdish Vyas that present eviction suit is maintainable in view of this observation of Assistant Commissioner, Devasthan Department is liable to be rejected and same is accordingly rejected.

16. Admittedly, no suit, whatsoever, under Section 22 of the Act was filed by the plaintiff at any point of time, therefore, findings of Assistant Commissioner, based on inquiry under Section 18 of the Act, given under Section 19 of the Act and consequential entries made under Section 21 of the Act have become final and cannot be disturbed in any manner even by the civil Court in the present eviction suit.

17. The reason given by the learned trial Court in its order dated 11.11.2008 that bar under Section 29 of the Act would not apply in the present case because at the time of filing of present suit in the year 2000, namely suit No. 80/2000, the plaintiff Trust had already been registered on 18.12.1996 and, therefore, Section 29 of the Act, which bars a suit by un-registered Trust, does not apply is also unsustainable. Section 29 of the Act bars a suit by an unregistered public trust. Therefore, eviction suit filed by plaintiff claiming possession from over 100 years back admittedly when public trust was not registered, cannot be tried by civil Court because such eviction suit presupposes possession or title of plaintiff and for enforcement of such rights as a landlord, when it was "required to be registered under this act but has not been so registered" and the same cannot be heard or decided by any Court.

18. Moreover, the learned trial Court has not discussed at all the effect of provisions of Section 73 of the Public Trusts Act in the impugned order, which otherwise also and completely bars the jurisdiction of the civil Court except for a limited avenue given for approaching civil Courts under the Act under Section 22 of the Act for cancellation or modification of the entries made under Section 21 of the Act. That is why, Section 73 provides that, "Save as expressly provided- in this Act (viz. Under Section 22 of the 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 or in respect of which the decision or order of such officer or authority has been made final and conclusive". Further Section 44 of the Act even excludes applicability of Sections 92 and 93 of C.P.C., providing intervention of Advocate General by filing civil suits for certain contingencies, to the Public Trusts covered by Public Trust Act, 1959.

19. As per the aforesaid entries made in respect of present two Public Trusts under Section 21 of the Act and which had become final and conclusive with the dismissal of appeal of the plaintiff Trust by the Commissioner, Devasthan Department on 12.8.1997, since no suit under Section 22 of the Act was filed by the plaintiff Trust within six months or even thereafter, those entries cannot be now disturbed under the garb of present eviction suit and purported rent notes dated 1.1.1975 and 16.4.1978, which have been disputed by the defendant Trust also cannot change this position and the relationship of landlord and tenant cannot be called upon to be established on the basis of these rent notes, since they admittedly pertain to the property already belonging to the defendant Trust, Shri Jin Kushal Guru Pracheen Dadawadi Bhaktjan Samiti, jodhpur and, therefore, there is no question of plaintiff Trust claiming any right as landlord over any portion of the said property belonging to the defendant Trust, under the garb of these rent notes, even if taken on their face value have been executed in ignorance of the proprietary rights of the defendant Trust itself over the said land. The petitioner defendant has denied the plaintiffs title or relationship of landlord and tenant in the present suit.

20. Therefore, this Court is of the considered view that the learned trial Court has not only erred in rejecting the application of the defendant - Shri jin Kushal Guru Pracheen Dadawadi Bhaktjan Samiti, Jodhpur under Order 14 Rule 2 C.P.C. but the suit itself is clearly barred in view of Section 73 of the Public Trusts Act and, therefore, in view of Order 7 Rule 11 C.P.C., the civil suit No. 80/2000 purportedly filed for eviction which is in effect and substance for change in the entries made under Section 21 of the Act with respect to properties belonging to defendant Public Trust itself deserves to be dismissed as barred by law.

21. Accordingly, this revision petition of defendant Shri Jin Kushal Guru Pracheen Dadawadi Bhaktjan Samiti, jodhpur is allowed and the impugned order dated 11.11.2008 passed by learned trial Court on application under Order 14 Rule 2 C.P.C. in Civil Original Suit No. 80/2000 is set aside. The Suit No. 80/2000, Chetani Vyason Ki Bagichi Neelkanth Mahadev Trust, Fatelisagar, Jodhpur v. Shri Jin Kushal Guru Pracheen Dadawadi Bhak jan Samiti, Jodhpur pending in the Court of Civil judge (Jr. Div.) and judicial Magistrate, jodhpur is hereby dismissed as not maintainable and barred by law. No order as to costs.

Revision petition dismissed.
O R