JUDGMENT
R. Balia, J.
1. This second appeal is filed by trustees of Hareshwar Mahadev Trust, a public trust registered under the Bombay Public Trusts Act against whom suit filed by the respondent-trustees on behalf of another Public Trust known as Shri Jaswantsinhji Audichya Brahman Boarding Vidyarthi Bhavan and registered under Bombay Public Trusts Act has been decreed by both the Courts below.
2. Plaintiffs have filed present suit in the Court of Civil Judge (Junior Division) for declaration of their title to land comprised in Survey No. 60 at C.T No. 63 and removal of encroachment made on the land by constructing a lavatory and cesspool and also for permanent prohibitory injunction. The assertion of the plaintiffs in the plaint was that the property in question was a grant from the State by Lekh No. 101, which is Exh. 116, and the property in question was entered in the register of public trust as property of the plaintiff-trust after holding an enquiry under Section 19 of the Bombay Public Trusts Act (hereinafter called the Act). The entry relating to the property in question under Section 19 of the Act is Exh. 117 on record. The defendants have denied the title of plaintiffs and asserted title in themselves primarily as well as by adverse possession in the alternative. In the face of these pleadings, issue No. 3 was framed, “Whether the plaintiff proves that the suit land is of the ownership of plaintiff-trust?” The trial Court found after taking into consideration the entry in the register made under Section 19 of the Act and the Lekh No. 101, Exh. 116 that the entry of properties belonging to the plaintiff-trust have been made in the register of public trust and the entry of description of four boundaries of the land made at page 2 of the document Exh. 117 corresponds with the description of four boundaries shown in Lekh No. 101 Ex. 116. The trial Judge also referred to Exh. 116 for coming to the conclusion that the entire open land surrounding Hareshwar Mahadev Mandir was given to the plaintiff-trust, exclusive of the premises of the temple. It also reached the conclusion by considering the oral and documentary evidence produced by the defendant that the documentary evidence produced by the defendant revealed the open land surrounding the Hareshwar Mahadev Mandir, excluding the land of temple and pujari room, is not of the ownership of defendant-trust. With these findings, it found in favour of the plaintiff about the title and decreed the suit for removal of encroachment in favour of the plaintiff by deciding the issue of adverse possession also against the defendant. On appeal before learned Extra Assistant Judge, the decree passed by Civil Judge (Junior Division) was affirmed vide judgment and decree dated 2-5-1977. On the question about ownership, the appellate Court referred to the register of the property maintained under the Act where the entries of the properties owned by the public trust, of which the plaintiffs are trustees, were made at the time of registering the trust when there was no disputes about the ownership, and agreed with the conclusion of the trial Court that the land in question has been shown as registered in favour of the plaintiffs, by affirming the decree of the trial Court. It also relied on the circumstances, that the defendant is also public trust registered under the Act and the properties belonging to it also have been shown in the register of trust. However, land in question was not registered in the name of defendants. It was noticed by the learned appellate Judge that when the defendant himself got registered this trust with the Charity Commissioner he did not include the property in question in the list of properties owned by it and to be registered as properties of the trust. In these circumstances,the appellate Judge found in favour of the plaintiff. The plea on behalf of the respondent was not accepted, and the suit was decreed.
3. Defendants while they filed the second appeal along with memo of appeal, one of the sustantial question of law which according to the defendant arose in this case was “whether the suit filed by the plaintiff is maintainable at law”. From the judgment under appeal and the grounds raised in memo of appeal, this question had reference to the plea of the defendant that since matter is pending before City Survey authorities for the purposes of City Survey under Rule 109 and it has not been finally adjudicated, therefore the Civil Court has no jurisdiction. However, when the matter came up for hearing Mr. Kavina, learned Counsel for the appellant confined his contention for the purpose of raising substantial question of law to only one ground, namely, that the Civil Court had no jurisdiction to entertain the dispute relating to ownership and title of the property in question vis-a-vis the plaintiff and defendant in view of the clear provisions contained in Sees. 78 and 79 of the Bombay Public Trusts Act, 1950, which makes the Deputy or Assistant Charity Commissioner the exclusive authority to decide the question whether property is the property of the trust or not. Unless such question is decided by Deputy or Assistant Charity Commissioner, should there be any further appeal by the Charity Commissioner, the civil Court or this Court do not get jurisdiction to entertain that question, and the decision of Charity Commissioner or Deputy or Assistant Charity Commissioner, as the case may be is final and conclusive. Since question concerned inherent lack of jurisdiction of the civil Court to entertain and try the issue and does not depend on any new facts, learned Counsel was permitted to raise this issue for the first time in appeal.
4. It has been contended on behalf of the appellants that according to Section 79 any question whether particular property is a property of the trust shall be decided by the Deputy or Assistant Charity Commissioner; or Charity Commissioner in appeal and that the decision of the Deputy/Assistant Charity Commissioner or the Charity Commissioner in appeal is to be final and conclusive unless set aside by the decision of the Court on application or of the High Court in appeal. He pointed out that the suit is founded on title of the plaintiff, public trust which the defendants, also as trustees of another registered public trust, denied. Therefore, the question has arisen whether property in question is the property of the plaintiff-trust on the pleadings of parties. Thus, all the conditions for applicability of Section 79 are satisfied and civil Court ought to have desisted from deciding this issue and the issue ought to have been referred to the Charity Commissioner for his decision.
5. Mr. P.M. Raval, Senior Advocates with Mr. Satyan Rai appears for the caveator respondent-plaintiff. Mr. Raval contends that enquiry contemplated as to the title to the property in question had already been conducted by authorities contemplated under Section 79 and after holding such enquiry, on finding that such property belongs to the plaintiff-trust, an entry has been made to that effect in the register kept under Section 17. According to Section 21, the entries so made, subject to the provisions of the Bombay Public Trusts Act and subject to any additional change recorded in accordance with in the provisions of this Act, are final and conclusive. Once entry of any property has been made as property of the public trust, the jurisdiction of the civil Court to try the suit for recovering possession from trespasser is not inhibited under any provision.
6. Having carefully considered rival contentions and taking into consideration the scheme of the Bombay Public Trusts Act, (hereinafter called the Act), I am of the opinion that the contention raised by the appellant cannot be sustained.
7. According to the Act as applicable in the State of Gujarat under Section 15 a duty has been cast on the trustees of a public trust to which the Act applies to make an application to the registration of public trust. In the application, the particulars required to be stated under Sub-section (5) of Section 18 includes the list of movables and immovables of the trust property with such description and particulars as may be sufficient for the identification thereof Section 19 of the Act provides for holding the enquiry by the Deputy or Assistant Charity Commissioner on receipt of such application under Section 18 for the purposes of ascertaining various particulars required to be disclosed in the application. Under the provision specific enquiry is envisaged into the question whether any property is property of such trust, under the Bombay Public Trusts (Gujarat) Rules, 1961. Rule 6 provides for additional particulars to be disclosed in the application which include particulars of title deeds pertaining to the trust property and the names of the trustees in possession thereof. Under Rule 7 enquiry is to be held in accordance with procedure prescribed for the trial of the suits under Presidency Small Causes Courts Act, 1882 or under the Provincial Small Causes Courts Act, 1987. Under Section 20 on completion of enquiry envisaged under Section 19 the concerned authority is to record his finding with the reasons therefore as to the matters mentioned in the said provision. After the findings have been recorded in respect of matters provided under Section 19 or the additional matters as provided under Rules, the Deputy or Assistant Charity Commissioner is required to make entries in the register kept for that purpose under Section 17 in accordance with the findings recorded by him or if appeals/applications are made as provided by the Act in accordance with final decision of the competent authority provided by the Act as per Section 21 of the Act. Under Sub-section (2) of Section 21 entries so made in the register are declared to be final and conclusive subject to the other provisions of the Act or subject to any change recorded under the provisions of the Act and the relevant Rules. Section 79 provides that any question whether or not a trust exists and whether such trust is a public trust or whether particular property is the property of such trust shall be decided by the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal as provided by this Act. It also provides under Sub-section (2) that 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 by the High Court in appeal be final and conclusive. In the perspective of these proceedings Section 80 which bars the jurisdiction of Civil Court reads as under:
80. 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.
8. Reading of these provisions makes it abundantly clear that the process of registering of trust as a public trust under the Bombay Public Trust starts with the filing of application by the trustees under Section 18 along with furnishing information regarding particulars required to be disclosed in application under Section 18 or additional particulars required to be disclosed under Rules which include question of disclosure of the properties belonging to the trust and the particulars about the title to such property claimed to be of the trust. On filing of such application an enquiry is envisaged at the hands of Assistant or Deputy Commissioner as the case may be, to verify the correctness or otherwise of the particulars disclosed in the application which specifically requires an enquiry whether particular property belongs to trust or not the enquiry is envisaged to be in the manner and according to procedure provided for a trial of a civil suit by the Courts of Small Causes. The recording of findings with reasons is envisaged in respect of particulars required to be disclosed under Section 18 and required to be enquired into under Section 19 by the Deputy Commissioner or the Assistant Commissioner. Appeal against such findings have been envisaged before the Charity Commissioner. Apart from envisaging an appeal against findings in respect of all or any of the particulars enquired into by the Deputy Commissioner or the Assistant Commissioner as the case may be, as are envisaged under Section 19, with reference to specific questions as to existence of a trust, the nature of a trust being a public trust and whether a particular property is the property of such trust, the remedy against the finding of Deputy or Assistant Charity Commissioner is not only open to appeal before the Charity Commissioner, but has been further made subject to the findings of the civil Courts if an application in that regard is made before the civil Court and thereafter an appeal against the decision of the civil Court to the High Court has also been envisaged under Section 79(2). It is further envisaged that after findings on the matters required of Deputy or Assistant Charity Commissioner as the case may be, to be enquired under Section 19 has become final under Section 20, according to such final decision on the correctness or otherwise of those particulars, the Deputy Commissioner or Assistant Commissioner is required to make entries in the register kept for that purpose under Section 17. The entries in the register have been declared to be final and conclusive proof. Under Section 79(2) final findings recorded whether by the Deputy or Assistant Charity Commissioner or Deputy Charity Commissioner in appeal or the Civil Court or High Court as the case may be, on the question of whether a trust exists, whether such trust is a public trust and whether in particular property is the property of such trust has too been declared to be final and conclusive.
9. Section 80 expressly provided that 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.
10. Provisions of Sees. 18 and 19,20 and 21 show that on the matters mentioned under Section 18 or/and the matters which may be additionally provided under the Rules an enquiry has to be conducted to ascertain their correctness as per the returns submitted before the Deputy or Assistant Charity Commissioner and he has to record his findings in respect of each of the matters. Thereafter, in accordance with the findings, which itself are subject to appeal before the Charity Commissioner, which have become final, entries in respect of matters enumerated in Section 18 are to be entered in the register which is kept for that purpose under Section 21 of the Act. Section 21 declares entry in respect of each particular to be final and conclusive subject to any change recorded under the provisions of the Act and subject to other provisions of the Act. Section 21 does not make each and every finding recorded in the order referred to under Section 20 as final and conclusive which may be ancillary and incidental to the purpose of making entries in the register. The entries made in the register are further subject to change in accordance with the provisions provided under Sees. 22 and 22A by making further enquiry in the circumstances mentioned in those provisions including in the matters which have remained to be enquired into at the time of making entries in the first instance. In contrast to the scheme of Sees. 18 to 21, Section 79 deals with question as to existence or non-existence of a public trust and whether any particular property is the property of such trust. These questions are required to be decided when raised, in the first instance by the Deputy or Assistant Charity Commissioner. The conclusions recorded by the Deputy/ Assistant Charity Commissioner are subject to appeal before the Charity Commissioner. The findings on the two issues are further subject to decisions of the civil Court on an application being made in that regard and the decision of civil Court on such application is further subject to appeal before the High Court. It is in this hierarchy of decision making process the final decision by highest of the authority in the chain becomes final and conclusive. The finality and conclusiveness of decision once reached to, is as much final and conclusive for the authorities under the Act and other forums. Therefore, once a question has arisen about the existence of a trust and any particular property belonging to it during enquiry under Section 19 of the Act and findings have been reached by the Deputy/Assistant Charity Commissioner or if the finding of such authority has been challenged before the Charity Commissioner in appeal the finding has been reached by the Charity Commissioner, such finding becomes final and conclusive unless it is set aside by the decision of the civil Court on an application made in that regard or to the High Court in appeal. It is not envisaged that once such final and conclusive finding is reached in respect of the fact whether in particular property is the property of such trust or not, it is again to be enquired every time anybody raises a question about the ownership. If the question whether or not a particular property belongs to a particular public trust which is a public trust or not has arisen during the course of enquiry under Section 19 and that question has been decided by the Deputy/Assistant Charity Commissioner as the case may be and in that proceedings by the highest of the authority if that finding has become final, it becomes final and conclusive effectively shutting out any enquiry in future and it is not envisaged that once such final and conclusive finding has been reached by the competent authority, subsequently if any proceedings are taken for enforcement of any right in respect of any such property, the mere denial of title of the trust enforcing its right in the property would inhibit the jurisdiction of the civil Court to entertain the suit, and the authorities under the Bombay Public Trusts Act shall be required to decide the question once over again. That will be very negation of the declaration of finality and conclusiveness of the findings earlier recorded when such question had arisen. I, therefore, do not find any substance in the contention of the learned Counsel for the appellant that since defendant-appellants in the present case have raised the question about the title of the plaintiff demanding an enquiry into whether the property in question is the properly of the trust, jurisdiction of the civil Court to enquire into that question is barred with reference to Section 79 read with Section 80.
11. The further contention of the learned Counsel for the appellant is that the findings recorded in an enquiry under Section 19 regarding the question whether a particular property is a property of such trust or not, cannot be taken into account while considering Section 79. It is to be noticed that Section 19 envisages a specific enquiry into the question whether any property is the property of such trust. Under Section 18 a trust is under an obligation to disclose in the application for registration the details of the property which it claims to be a trust property. As noticed above, Rule 6 of the Bombay Public Trusts (Gujarat) Rules, 1961 requires the applicants for registration of a public trust further to furnish particulars of title deeds pertaining to trust property and the claims of trustees in possession thereof under clause (g) of sub-rule (1). Therefore, when any person seeking registration of a public trust approaches the competent authority for its registration, he is required to furnish details about the property claimed to be the trust property and an enquiry is envisaged into the question at the hands of Deputy/Assistant Charity Commissioner whether such property claimed by the trust is the property of the trust. Therefore, under the scheme of the Act, question whether a particular property is a property of a trust is raised at the time when it is to be enquired into by the Deputy Charity Commissioner or Assistant Charity Commissioner, including the question whether such trust exists and such trust is a public trust when application for registration is made. Question having been raised before it for determination and determination having been made after holding enquiry, the findings reached in such proceedings become final and conclusive in terms of Section 79 and no subsequent enquiry into the same question again is envisaged merely because subsequent to such finding again the same question is raised. It is only to obviate necessity to recurrent enquiries into this question the finality and conclusiveness is attached to the finding reached by the Deputy/Assistant Charity Commissioner or other higher authority, as the case may be in appropriate proceedings, by declaring such proceedings to be final and conclusive debarring all subsequent enquiries by such officers and the jurisdiction of civil Court too is barred to enquire into such question and the findings recorded by the competent authority under the provisions of Section 19 or 79 as the case may be, on the question of any particular property belonging to any particular trust, except in accordance with the provisions of the Act for altering such entries. It is for the person or authority, requiring such change to have recourse to such proceedings, and certainly not by raising the question in defence contrary to finding for the purpose of frustrating the reliefs founded on such finality and conclusiveness, and in the process nullify the very purpose and purport of the provisions.
12. It may not be out of place to refer to observation of the Apex Court in Raizada Topandas and Anr. v. Gorakhrqm Gokalchand, reported in AIR 1964 SC 1348:
The argument of learned Counsel for the appellants is that the section in effect states that notwithstanding any general principle, all claims or questions under the Act shall be tried exclusively by the Courts mentioned in the section, e.g., the Court of Small Causes in Greater Bombay, and it does not matter whether the claim or question is raised by the plaintiff or the defendant. The argument is plausible, but appears to us to be untenable on a careful scrutiny. We do not think that the section says or intends to say that the plea of the defendant will determine or change the forum. It proceeds on the basis that exclusive jurisdiction is conferred on certain Courts to decide all questions or claims under the Act as to parties, between whom there is or was a relationship of landlord and tenant. It does not invest those Courts with exclusive power to try questions of title, such as questions as between the rightful owner and a trespasser or a licensee, for such questions do not arise under the Act. If, therefore, the plaintiff in his plaint does not admit a relation which would attract any of the provisions of the Act on which the exclusive jurisdiction given under Section 28 depends, we do not think that the defendant by his plea can force the plaintiff to go to a forum where on his averments he cannot go.
The observation fully applies to present case. The plaintiff had pleaded that the property in question is entered as property of the plaintiff-trust in the register under the Act. In the face of these averments, in view of the provisions of Sees. 21 and 79 of the Act, under which finality is attached to such facts, further trial of the issue was not envisaged on the pleadings of plaint. If the plaintiff fails to prove such averments, his suit might fail, but jurisdiction of civil Court will not be ousted at inception and it will depend on enquiry whether such entry about trust property exists under the provision of Bombay Public Trusts Act. It will be apt to refer to a decision of a Full Bench of Allahabad High Court in Ananti v. Channu, which was approved by Supreme Court in Raizada Topandas case (supra):
The plaintiff chooses his forum and files this suit. If he establishes the correctness of this facts he will get his relief from the forum chosen. If he frames his suit in a manner not warranted by the facts, and goes for his relief to a Court which cannotgrant him relief on the true facts, he will have his suit dismissed If it is found, on a trial on the merits so far as this issue of jurisdiction goes, that the facts alleged by the plaintiff are not true and the facts alleged by the defendants are true, and that the case is not cognizable by the Court, there will be two kinds of orders to be passed. If the jurisdiction is only one relating to territorial limits or pecuniary limits, the plaint will be ordered to be returned for presentation to the proper Court. If, on the other hand, it is found that, having regard to the nature of the suit, it is not cognizable by the class of Courts to which the Court belongs, the plaintiffs suit will have to be dismissed in its entirety.
13. In the present case, it is not disputed that property covered by the grant had been found to be belonging to the public trust-plaintiff in the present case and an entry to that effect has been made in the register of public trust under Section 21. Therefore, the finding recorded in the proceedings under Section 19 as well as entries made under Section 21 are final and conclusive. The only question which fell for consideration before the Courts below was whether the entry made in the register and the findings recorded in that proceedings relate to the property in question or identifiable with the property in question, enquiry into such question by the civil Court if occasion for such identification arises.
14. Apart from the aforesaid, the bar of Civil Court to inquire into any question is subject to any question which is required to be determined under Section 79 or other provisions of the Act which have been declared final and conclusive, is not absolute but is subject to other provisions of the Act. Section 50 would be relevant to notice at this stage. Section 50 of the Bombay Public Trusts Act as is applicable to the State of Gujarat reads as under:
Section. 50. – – In any case –
(i) where it is alleged that there is a breach of a public trust,
(ii) where a direction is required to recover possession of a property belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from any person including a person holding adversely to the public trust, or
(iii) where the direction of the Court is deemed necessary for the administration of any public trust,
the Charity Commissioner after making such enquiry as he thinks necessary or two or more persons having an interest in the trust and 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) the removal of any trustee or manager,
(c) the appointment of a new trustee or manager, (cc) vesting any property in a trustee,
(d) a direction for taking accounts and making certain inquiries,
(e) 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,
(f) a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged,
(g) the settlement of a scheme or variations or alterations in a scheme already settled, or
(h) granting such further or other relief as the nature of the case may require:
Provided that no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust 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.
15. Section 50 clearly envisages that where a property of trust is in possession of any person holding it adversely to the trust, Charity Commissioner himself or any two or more persons having an interest in the trust 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 recovery of the possession of suit property or proceeds thereof. Therefore, a civil Court (sic. suit) for recovery of trust property from strangers or any other person claiming adversely to the trust is envisaged. Obviously, when civil suit is envisaged, for securing relief against a person in possession of trust property claiming adversely to it. In the context suit for recovery of possession against person claiming adversely to trust must refer to such relief as the nature of claim admits of. It may also include recovery of possession through removing unlawful encroachment from the property of trust through a decree for mandatory direction for removing encroachment with permanent prohibitory injunction restraining defendants adverse claimants not to interfere with the possession of the trust. It also envisages that defendants in that suit may raise a question about the title of the suit property. However, while envisaging a suit for recovery of trust property from persons claiming adversely to the trust no such embargo has been put on the jurisdiction of civil Court to enquire into any question which becomes necessary for deciding such suit on defendants plea. What shall be the evidence which shall be necessary for deciding such issue is a different question. May be, that where a finding has already been reached under any proceedings under the Act about the belonging of a particular property to a particular trust, that may be produced before the Court which may prove to be a final and conclusive proof of the fact that such property vest in the trust. Raising of such issue before the Court and production of evidence which is final and conclusive proof of the fact in dispute does not result into transgressing of jurisdiction barred under Section 80 read with Section 79 of the Act. It may also be pertinent to notice that while Section 50 authorises Charity Commissioner or two or more persons having interest in the trust by obtaining consent in writing of the Charity Commissioner may institute suit, it does not restrict the right of trustees in whom the legal ownership of property of trust vest to file a suit for recovery of trust property or protect the property in exercise of their own right without obtaining the permission of the Charity Commissioner as for exercising of ownership by person in whom the right of legal ownership vest, no permission is required. The bar under Section 80 which is subject to other provisions of the Act, therefore, does not apply to a suit of the nature envisaged under Section 50, namely, a suit by Charity Commissioner having interest, in the trust property or by the trustees for recovery of a trust property from persons claiming the same adversely to the trust have encroached upon it.
16. Therefore, the question that the Courts below have acted without jurisdiction in determining the question that the relevant entry produced by plaintiff relates to suit property and corresponding the suit property is a property of the plaintiff-trust must be answered in negative, that is, against the defendants.
No other point was pressed. Appeal, therefore, fails and is hereby dismissed. No/orders as to costs.
Civil application too is accordingly rejected.