Kingaonkar V.R, J.:— Both these appeals are being decided together inasmuch as there is sufficient semblance of controversial questions involved in both of them. Though, first appeal No. 804/1989 was originally registered as first appeal No. 2578/1983 at Bombay, prior to establishment of the Bench at Aurangabad, and is renumbered as first appeal here yet, the same is being treated and decided as second appeal in view of law laid down by this Court in “(Maqbul Ahmed Miya Girav v. Hidayatulla Baldi)1 1993 (1) Bom. C.R 386 : 1993 (1) Bombay Cases Reporter 386, followed by a Division Bench in “(Shivprasad Shankarlal Pardeshi since deceased by heirs Shrikant Shivprasad v. Leelabai Badrinayaran Kalwar since deceased by her heirs)2, 1998 (2) Bom. C.R 744 : 1998 (1) Maharashtra Law Journal 444. For, the appeal arises from judgment and order rendered by learned Assistant District Judge in an application/appeal under section 72(1) of the Bombay Public Trusts Act, 1950 (hereinafter referred to as B.P.T Act).
2. Though, necessary substantial questions of law were formulated while admitting the second appeal No. 274/2002 yet, it appears that no such substantial question of law was formulated in F.A No. 804/1989. The reason being that it was treated and admitted as first appeal. Consequently, the necessary substantial questions of law are formulated at the time of hearing and decision on merits of the appeal. Background facts may be briefly stated as follows:
“Shri Jagdamba Tuljadevi Burhannagar” was registered as a Public Trust on an application filed under section 18 of the B.P.T Act, by one Kisan Lahanu Bhagat (Teli), in the year 1952. In his application said Kisan stated that mode of succession would be hereditary. He was declared as sole trustee of the above mentioned Trust which was registered at Sr. No. A/237. After his death, appellant Arjun, who is the son of deceased Kisan became the sole trustee as per change report bearing No. 247/1963.
3. There is a big house (Wada) which was being used for residence by deceased Kisan Bhagat (Teli). In two rooms of front side, idols of Shri Jagdamba Tuljapur deity and Sapta Shringidevi deity were installed by his forefathers. His forefathers used to carry a palanquin of the goddess (deity) from Burhannagar to Tuljapur during Navratri festival. They used to camp at Tuljapur with the idols, carried in palanquin, at Tuljapur for couple of days. They used to follow the rituals and used to worship deities. It appears that somewhere in 1913 grandfather of deceased Kisan had purchased the statue of the idols at Mumbai. They had even mortgaged the private properly to get the V.P released. The procession was carried as a matter of practice to Tuljapur, which is believed to be the main seat of deity Jagdamba Bhawani, for long many years and it was followed by deceased Kisan and his forefathers for each year. So also, the sole trustee - Arjun used to follow and is following the practice of worshipping the deity.
4. Some villagers, including the respondents, submitted an application to the Joint Charity Commissioner in 1980, seeking framing of scheme under section 50-A of the B.P.T Act. They claimed themselves to be worshippers of the deity and as such interested in the Devasthan Trust. They asserted that a large number of worshippers visit the Devasthan and huge income is generated but the sole trustee (appellant) failed to render proper accounts and mismanaged the affairs of the Trust. They asserted that the offerings given to the deity were being misappropriated by the sole trustee. Their further contention was that he was claiming himself to be the owner of said Devasthan and used to claim that the Devasthan is his own property. The application was registered as Application No. 302/1980. The appellant was served with a show cause notice and was called upon to attend the inquiry. He submitted his written statement. He denied all the material averments made in the application. He contended that the scheme was not required to be framed. He further asserted that the private property was erroneously registered as a Trust and, in fact, it is a private Trust. He submitted that a separate remedy by way of Revision Application was adopted by him in this behalf.
5. The learned Joint Charity Commissioner, pro tanto heard concerned Advocates and framed a scheme under section 50-A(1) of the B.P.T Act, on very same day. Feeling aggrieved, the appellant challenged the said order by filing an application under section 72(1) of the B.P.T Act. The learned Assistant Judge, Ahmednagar, dismissed the said application, confirming the findings of the Joint Charity Commissioner. Hence, the first appeal.
6. The sons of appellant - Arjun filed a suit (R.C.S No. 600/1982) for declaration and injunction. They claimed relief of declaration to the effect that the properties described as 1-A to 1-D in the claim clause were the private properties. They alleged that those properties were not the properties of the Public Trust. They contended that their grand father had filed application under wrong belief that the Devasthan was required to be registered. They contended that deceased Kisan Lahanu Bhagat (Teli) never intended to dedicate the suit properties for Devasthan nor it was his intention to form a Trust for public use and benefit. They further asserted that the appellant, who was defendant No. 2 in the said suit, is sole trustee and Pujari of the Devasthan. According to them, the respondents had denied their rights and offered obstruction in the performance of Pooja and other religious ceremonies in the temples. They sought declaration to the effect that the properties claimed by them were not the properties of Devasthan (Trust) and that they were the owners thereof. They also prayed for relief of prohibitory injunction.
7. The suit was contested by the respondents Nos. 1 and 2. They pleaded that the construction of the main temple was carried out by utilising funds donated by one Shankar Damodhar and other villagers. They alleged that the premises of the temple are situated on Gaothan land and the same is not ancestral property of the plaintiffs or defendant No. 2 (appellant). They further alleged that the Public Trust was duly registered on application of deceased Kisan. They submitted that since the defendant No. 2 - Arjun (appellant) was mismanaging the affairs of the Trust, they sought framing of scheme under section 50-A of the B.P.T Act and when such a scheme was duly framed, the suit was filed only with a view to obstruct smooth operation of the said scheme. They urged to dismiss the suit.
8. On merits, the learned trial Court held that the Civil Court cannot exercise jurisdiction in such a matter pertaining to question whether or not particular properly is the property of Public Trust or it is a private property. The trial Court dismissed the suit holding that it has no jurisdiction to decide the relevant questions raised in the suit. On appeal preferred by the original plaintiffs, the first Appellate Court reversed the decree. The learned District Judge held that the suit was maintainable. The learned District Judge further held that the plaintiffs were entitled to the relief of declaration as well injunction. In keeping with such findings, the first Appellate Court decreed the suit. Hence, this second appeal at the instance of the original defendant Nos. 2 and 3.
9. In the context of F.A No. 804/1989, following substantial questions of law need determination:
“(i) Whether the first Appellate Court committed, patent error while confirming the scheme drawn under section 50-A of the B.P.T Act and rendered perverse finding to the effect that the Charity Commissioner was not bound to hear the trustee (appellant) while framing the scheme.?
(ii) Whether the scheme was framed by following due procedure and after giving necessary opportunity of hearing to the sole trustee (appellant) and as such is sustainable.?
(iii) Whether during inquiry for the purpose of framing scheme under section 50-A of the B.P.T Act, the appellant had the right to claim that there exists no Public Trust and the registration of the Public Trust was erroneously effected and that such simultaneous inquiry could have been conducted on assuming that the written statement was like an application under section 70-A of the B.P.T Act?
10. In S.A No. 274/2002, following substantial questions of law arise:
“(i) Whether the Civil Court has jurisdiction to decide the question whether a particular property is that of a Public Trust or that it is not a property of the Public Trust and belongs to individual claimant.?
(ii) Whether the suit for declaration that the properties were not of the Public Trust was barred by limitation and, therefore, the impugned judgment of the first Appellate Court deserves interference.?
11. My findings on the above referred questions of law are thus:
In S.A No. 804/1989.
(i) Yes. (ii) No. (iii) Yes.
In S.A No. 274/2002
(i) No. (ii) Yes, suit is barred by limitation.
The reasons are discussed hereinafter. F.A No. 804 of 1989.
12. At the threshold, it may be mentioned that the first Appellate Court raised a single point for consideration in the context of legality of the order rendered by the Joint Charity Commissioner. The first Appellate Court only considered as to whether the appellant was not given proper opportunity in the scheme proceedings and was, therefore, prejudiced which necessitated remand of the matter. The learned Assistant District Judge came to the conclusion that when the notice was served and a written statement was filed by the appellant, nothing more was required to be done. He observed:
“Firstly, the word used in this section is that the Charity Commissioner may. He is not bound to hear the trustee. But in this case the trustee i.e the applicant before me was served with the notice, he filed his written statement, his pleader made his submissions and draft scheme was proposed. I do not think any more opportunity was needed.”
13. Mr. Mantri, learned Advocate appearing for the appellant, would submit that the first Appellate Court rendered perverse finding in respect of the necessity to give proper opportunity to the trustee (appellant). He pointed out from record that the main contention of the appellant was that the Devasthan is not a Public Trust at all. He would submit that when the written statement of the appellant indicated his main objection as regards nature of the Trust, it was highly improbable that any concession would have been given by the concerned Advocate. Mr. Mantri, would further submit that the concession might have been given for framing of the scheme as the appellant desired and had submitted vide his own draft. He pointed out from the written statement of the appellant that the appellant submitted before the Joint Charity Commissioner that he had filed a Revision Application disputing the decision regarding nature of properties, claiming that they were not of the Devasthan and had urged, therefore, that the scheme should not be framed. Mr. Mantri, would submit that the first Appellate Court overlooked such a stance of the appellant and rendered perverse finding that whatever was done by the Joint Charity Commissioner was sufficient as it was within the discretionary powers of the authority to frame the scheme.
14. The record shows that on 15.6.1981, the Joint Charily Commissioner directed issuance of notices for the purpose of inquiry. The inquiry was scheduled on 14.7.1981 at Pune. The appellant submitted an application for adjournment. The application was rejected. The appellant then submitted his written statement (Exh. 10) on the same day. The learned Charily Commissioner heard the arguments on the same day, rendered the oral judgment and prepared the scheme. The scheme appended with the judgment consists of 13 typed pages. The observations of the Joint Charity Commissioner in para 4 of the said order dated 14.7.1981 are material. It is observed:
“The opponent strongly objected for framing of the scheme. He stated that he has filed Revision Application disputing the decision regarding the properties of the said Devasthan and, therefore, the scheme should not be framed. Today, the written statement has been submitted by the opponent and the same has been taken on record.”
15. Needless to say, the appellant strongly objected for framing of the scheme. Since inception his contention was that he was the sole trustee and was properly managing the affairs of the Trust. He had submitted that the application was ill-motivated due to enmity with the original applicants. He had further claimed that a Revision Application was filed by him to get relief regarding his claim that the properties were of his ancestors and it was a private Trust though, wrongly registered as a Public Trust. Inspite of his such strong objection and the adverse claim, the learned Joint Charity Commissioner did not give him any further opportunity to adduce evidence in support of such contention nor the Joint Charity commissioner considered as to whether the earlier decision pertaining to registration of the Public Trust did call for any intervention in the exercise of the Revisional powers.
16. The relevant provisions of section 50-A of the B.P.T Act will make it clear that jurisdiction of the Joint Charity Commissioner is supervisory in nature. The relevant provision, to the extent it is required to be considered, may be reproduced as follows:
“Section 50-A. Power of Charity Commissioner to frame, amalgamate or modify schemes:
(1) Notwithstanding anything contained in section 50, where the Charity Commissioner has reason to believe that, in the interest of the proper management or administration of a public trust, a scheme should be settled for it, or where two or more persons having interest in a public trust make an application to him in writing in the prescribed manner that, in the interest of the proper management or administration of a public trust, a scheme should be settled for it, the Charity Commissioner may, if, after giving the trustees of such trust due opportunity to be heard, he is satisfied that it is necessary or expedient so to do, frame a scheme for the management or administration of such trust.”
17. A plain reading of the aforesaid provision will make it amply clear that the Charity Commissioner may proceed under sub-section (1) when he “has reason to believe” that in the interest of proper management and administration of the Trust, a scheme should be settled for it. It is also clear that the Charity Commissioner is under obligation to give the trustees of such Trust due opportunity to be heard. The expression “due opportunity to be heard” must be interpreted in appropriate manner. In “(Anil Amrut Atre v. District and Sessions Judge)3”, 2003 (2) Bom. C.R (A.B) 246 (F.B) : 2003 (2) Bombay Cases Reporter 246, Full Bench of our High Court held that opportunity of hearing does imply personal hearing and opportunity to lead evidence, if any.
18. In case of “(Jaymal Thakore v. Gujarat State Charity Commissioner, Ahmedabad)4”, A.I.R 2001 Gujarat 279, it is held that the powers of the Charity Commissioner are of quasi judicial nature. It is well settled that the requirement of acting judicially does imply requirement to act justly and fairly and not arbitrarily or capriciously. The Charity Commissioner may frame the scheme having regard to the need to do so.
19. Generally, following grounds are required to be considered by the Charity Commissioner.
“(1) Where there is no proper management of a Public Trust and it is desirable for efficient and proper management of the Trust to frame a scheme;
(2) Where accounts are not properly and regularly kept;
(3) Where the trustees have been continuously negligent in getting accounts audited in time as prescribed under law;
(4) Where the Public Trust is managed by a sole trustee and even though the Trust is large income, still it runs in deficit;
(5) Where the sole trustee appropriates income of the trust on himself and/or on his family;
(6) Where the sole trustee derives benefit from the trust property;
(7) Where the sole trustee claims interest adverse to the trust;
(8) Where the sole trustee misuses the trust funds;
(9) Where the sole trustee acts against the tenets of the trust;
(10) Where trustees continuously contravene the provisions of the Bombay Public Trusts Act, 1950;
(11) Where the objects of the trust are not carried out;
(12) Where the sole trustee uses or deals with the trust property for his own profit or for any other purposes unconnected with a public trust;
(13) Where the trust is managed by a sole trustee and the trust property is in danger of being wasted by him;
(14) Where the trustees are negligent, or deliberately not carrying out the directions given by the auditor in audit notes, or trustees not investing trust money in approved securities or keeping large cash amount on hand or alienating trust properties in contravention of section 36…..etc.,
20. What was the application of the respondents.? They asserted that a large number of devotees visit the temple. The sole trustee was not maintaining the account and was misappropriating the income. They further submitted that the sole trustee was falsely showing income as Rs. 900/- to Rs. 1,000/- per year. The question is whether such averments were substantiated by any tangible evidence. The Joint Charity Commissioner did not express any opinion on the question whether the affairs of the Trust were being mismanaged and that the sole Trustee was indulging in misappropriation of the funds or income of the Trust. He simply observed:
“So far as mode of succession of other Trustees is concerned, this Devasthan being a Public temple, naturally there are large number of devotees and beneficiaries who visit the temple for worship, Pooja-archa etc. they are interested as beneficiaries to look after the day-to-day affairs of the Devasthan and it will be unjust to deprive them to become trustees of the said Trust. However, as already stated above I accept the hereditary trusteeship so far as the present opponent, Shri Arjun Kisan Bhagat is concerned. But I desire to appoint some more trustees. Looking to the things, activities and income of this Trust I hold that there should be minimum three and maximum five trustees.”
21. One cannot be oblivious of the fact that the learned Joint Charity Commissioner did not call for any report nor recorded evidence of the original applicants. In a single day, he is said to have rejected the application for adjournment, allowed the appellant to file his written statement, hear the arguments and rendered the decision to frame the scheme because he “desired” that there shall be more Trustees. It cannot be denied that if the sole Trustee had failed to maintain accounts properly and regularly or that he was guilty of continuous negligence and had committed any misappropriation then there was a ground available to frame the scheme. The order of the Joint Charity Commissioner was rendered only on the basis of the averments made in the application and his conjecture that appointment of more Trustees was necessary. The first Appellate Court failed to see the hasty and arbitrary action taken by the learned Charity Commissioner. The first Appellate Court was wrongly under the impression that the use of word “may” in section 50-A of the B.P.T Act gave discretion to the Joint Charity Commissioner for making appointment of the Trustees and preparing a scheme in order to organise management of the Public Trust. This approach of the first Appellate Court is erroneous and perverse.
22. Mr. Mantri, learned Advocate seeks to rely on “(Pandurang Tatoba Gurav since deceased through his heirs & legal representatives v. Narayan Bhau Pawar)5”, 2002 (3) Bom. C.R 575 : 2002 (3) Bombay Cases Reporter 575. A single Bench of this Court held that when the entire scheme was modified without disclosing any justification for the same, it discloses improper exercise of the powers by the authorities as well as non-application of mind to the points sought to be raised by the appellants in the course of the inquiry before the authority. Relying on “(Muthuswami Gurukkal v. Aiyaswami Thevar)6”, 1964 (2) Mh. L.J 560, it is held that there is nothing illegal in hereditary trusteeship and pujariship being combined in the same person especially in the case of small temples where there has been no interference or control by any of the villagers of the place. The authorities have to bear in mind while acting under section 50-A that when the management of the temple is in the hands of Pujari for number of years and for generations, interest in the form of hereditary trusteeship is created in favour of such persons, subject of course to the limitations and restrictions which may be specifically provided for under the statutes applicable to the administration of the subject matter in relation to which such interest is created.
23. Mr. Mantri, further seeks to rely on “(Fakir Mohamed Abdul Razak v. The Charity Commissioner, Bombay)7” A.I.R 1976 Bombay 304. A Division Bench of this Court held that settling a scheme is one of the most important reliefs relating to the administration of public trust. The primary duty of the Court is to consider the interest of the public for whose benefit the trust has been created. The learned Advocate further seeks to rely on “(Taher Alimohohamad Poonawala v. Quizar Shaikh Namanbhoy)8”, 2002 (3) Bom. C.R 575 : A.I.R 1995 Bombay 422. The expression “reason to believe” as used in section 50-A(1)(2) of the B.P.T Act is interpreted and succinctly illustrated in the given case. Co-incidentally the same Charity Commissioner, (Mr. M.G Madan) who had rendered the order in the given case, has passed the order from which the appeal was carried herein to the first Appellate Court. It is held that formation of prima facie opinion on the aspects enunciated in section 50-a(1) or section 50-a(2) is necessary. The learned Single Judge held:
“It has to be borne in mind that the opportunity to be provided to the trustees to show cause must be reasonable, effective and real and not an empty formality.”
It appears that when the Charity Commissioner acts on his own and decides to suo motu exercise the powers under section 50-a(1) then it is necessary for him to pass a brief preliminary order which would reflect the reasons for him to believe that in the interest of proper management or administration of a public trust, there is need to settle a scheme. In my opinion, such requirement is restricted to the exercise of suo motu power. The use of word “or” in conjunction with the further sentence “Where two or more persons having interest in a public trust make an application to him in writing in the prescribed manner” would show that when the inquiry is made on an application then the show cause notice may not reflect such a reason to believe the allegations. It would suffice if a copy of the application is furnished alongwith the show cause notice. It does not, however, mean that the Charity Commissioner may immediately proceed to frame the scheme without his satisfaction regarding existence of legal grounds for the need to do so.
24. On close scrutiny of the judgment rendered by the first Appellate Court it is quite clear that the learned Assistant Judge failed to properly appreciate the contentions raised by the appellant. There appears non-application of judicial mind to the fact situation as well requirements of law. The learned Assistant District Judge, has observed:
“Thus we will find that the counsel on behalf of the present applicant had submitted before the Charity authorities not only a draft scheme but also had consented to framing of the scheme.”
25. The record reveals that the appellant raised strong objection for framing of the scheme as proposed. He presented his own scheme alongwith the written statement which was filed after co-axing him, because his application for adjournment was rejected. There appears nothing on record to show that he “consented” to the framing of the scheme. The tenor of the written statement filed by him would show that he was claiming that the nature of trust was wrongly determined and it was the private trust of his family. In the face of such averments, it is difficult to say that he consented to framing of the scheme. The proposed scheme submitted by him was such that his sole trusteeship would be continued without control of other members. That does not amount to his consent for framing of the scheme which was unpalatable to him. As stated earlier, the learned Assistant Judge wrongly held that the Charity Commissioner was not bound to hear the trustee because the power under section 50-A is discretionary. This is no short of perversity in findings of the first Appellate Court. The first Appellate Court was required to examine whether real opportunity was afforded to the appellant and moreover, whether framing of the scheme was necessitated under the circumstances which are covered by either of the ground amongst those stated in the earlier paragraph. The framing of scheme is within discretion of the Charity Commissioner but the power is not unbridled. The discretion has to be used judiciously and in order to further the interest of the Public Trust. Obviously, without collecting prima facie material regarding existence of the grounds to infer maladministration of the affairs of the Trust, the scheme could not have been framed just for asking by the respondents. The first Appellate Court erroneously dismissed the appeal under wrong assumption that such discretion available to the Charity Commissioner was absolute. Under the circumstances, both the judgments will have to be set aside.
26. Mr. Dhorde, learned Advocate for the appellants pointed out that a Court Commissioner was appointed to manage the annual affairs of Jatra. He pointed out that the income derived from Navratra Utsav and other ceremonies was in the range of Rs. 25,000/- to Rs. 30,000/- per year, whereas such income shown by the appellant was approximately Rs. 10,000/- per year. That cannot be regarded as the ground for framing of the scheme because it was not the juxta position of the relevant period. The question as to whether the appellant used to show less income, had failed to submit the accounts or had misappropriated certain amounts at the relevant time when the application was filed is more important. The Joint Charity Commissioner is at liberty to inquire into such questions afresh. The Joint Charity Commissioner may consider whether a particular part of the income can be made available to the appellant since he is hereditary Pujari of the temple and is maintaining the traditional practice of carrying the palanquin of the deity to Tuljapur Bhawani. In the meanwhile, the appointment of Court Commissioner as per order dated 28th September 1981 rendered by the in-charge District Judge, Ahmednagar shall be continued till the Joint Charity Commissioner would decide the matter afresh.
27. This takes me to the next question as to whether the application alongwith the Revision Petition filed by the appellant could be clubbed together for common hearing. I find that though, these are separate proceedings yet, Revision under section 70-A of the B.P.T Act is within the discretion of the Charity Commissioner and he could have decided the same together. It is well settled that the proceedings under the B.P.T Act are required to be decided in accordance with the procedure enumerated under the Civil Procedure Code, as far as it is practicable. The question as to whether the Trust is a public trust or private trust could be decided in the same proceedings by the Joint Charity Commissioner. The inquiry contemplated under section 19 of the B.P.T Act, 1950 is to be conducted as per the provisions of the Civil Procedure Code. This Court in “(Vithoba v. Balkrishna)9”, A.I.R 1968 Bombay 14 held that the provision of the Code of Civil Procedure are applicable as far as possible to the inquiries under the B.P.T Act. When there is sufficient unity of causes of action, there is no difficulty in deciding the inquiries together. In “(P.T Anklesaria v. Union of India)10”, 1974 Mh. L.J 891, this Court held that where there is sufficient unity of causes of action or the lis is required to be clubbed together then both the suits can be tried together as per section 151 of the C.P Code. It is true, no doubt, that such a question regarding nature of the Trust should have been raised within a reasonable time frame. The question as to whether after a period of 25 years the Revision Application was maintainable is required to be decided. I am of the prima facie opinion that after such a long drawn period, it may not be open to the appellant to raise dispute on such count but then if satisfied by the very nature of the application and the relevant material, it is for the Charity Commissioner to decide whether the hands of the clock may be set back. No opinion in this behalf is expressed. Still, however, I have no manner of doubt that both the inquiries could be conducted together, particularly, when there is no prohibition enumerated in the provisions of the B.P.T Act and it is matter of convenience or rather settlement of the disputed questions in the same proceedings.
S.A No. 274 of 2002
28. Mr. Dhorde, would submit that the suit was not maintainable in view of the prayers made by the appellants. He would submit that the subject of the suit is outside the purview of the Civil Court's jurisdiction. He contended that the question as to whether a particular property is the property of the Public Trust, and particularly when it was shown to be the property of the Trust at the time of the registration of the Trust, could not have been gone into by the first Appellate Court. He seeks to rely on “(Mrs. Jankibai Prahladrai Brijlal Seksaria v. Kashinath Raghunath Kelkar*)11”, A.I.R 1972 Bombay 199 and “(Church of North India v. Lavajibhai Ratanjibhai)12”, 2005 A.I.R S.C.W 2738.
29. Mr. Dixit, learned Sr. Advocate however, supported the impugned judgment of the first Appellate Court. He relied on “(Keki Pestonji Jamadar v. Rodabai Khodadad Merwan Irani*)13”, 1971 Bombay Law Reporter 198. He also would rely on “(Radhakanta Deb v. The Commissioner of Hindu Religious Endowments, Orissa)14”, 1981 DGLS 86 : (1981) 2 SCC 226 : A.I.R 1981 Supreme Court 798, (Haribhanu Maharaj of Baroda v. Charity Commissioner, Ahmedabad)15”, 1986 DGLS 86 : (1986) 4 SCC 162 : A.I.R 1986 Supreme Court 2139 and “(Gangadhar Ambadas Parashare v. Mahadeo Ambadas Parashare)16”, 1999 (Sup.) Bom. c.r 968 : 1999 (3) Mah. L.J 248. It is argued on behalf of the respondents Vijay and others that the first Appellate Court was justified in holding that the Trust is a private Trust and, therefore, the suit for declaration and injunction (R.C.S No. 600/1982) ought to be decreed.
30. The issue is no more res-integra. This Court in “(Keshav Narayan Bharti dead through his L.Rs Parvatibai Keshav Bharti v. State of Maharashtra)17”, 2007 (1) Bom. c.r (a.b) 634 : 2007 (2) Maharashtra Law Journal 469, decided the very same question. The learned Single Judge took survey of the scheme of the B.P.T Act and also considered relevant judgments including the Full Bench Judgment in “(Keki Pestonji Jamadar v. Rodabai Khodadad Menuan Irani)” (supra). This Court held that a suit for declaration that the suit property is not a property of Public Trust or is of a private Trust would be outside the jurisdiction of the Civil Court. It is held that finality given under sub-section (2) of section 79 of the B.P.T Act is further reinforced specifically by section 80 of the B.P.T Act. After elaborate discussion of the relevant provisions, the learned Single Judge held that suit of such nature is not maintainable in Civil Court and moreover, the relief for declaration is barred by limitation in view of Article 58 of the Limitation Act, 1963. The very same questions are being agitated in this appeal before me. I am of the opinion that the view of the co-ordinate Bench is proper and no deviation therefrom is called for.
31. It may be stated that the Apex Court in “(Church of North India v. Lavajibhai Ratanjibhai)” (supra) decided the question pertaining to bar of jurisdiction of Civil Court under section 80 of the B.P.T Act, 1950. The Apex Court held that the jurisdiction of Civil Court is ousted in the context of enforcement of a right on behalf of a Public Trust or the other rights regarding which the question would squarely fall within the purview of section 50 of the B.P.T Act. In “(Vinayaka Dev Idagunji v. Shivaram)18”, 2005 DGLS 484 : (2005) 6 SCC 641 : A.I.R 2005 Supreme Court 3081, the suit to establish right to be hereditary archaks (Pujaris) was held as the suit not outside the purview of section 50 of the B.P.T Act. In “(Keki Pestonji Jamadar v. Rodabai Khodadad Merwan Irani*)” (supra), the question was whether author of the Trust was the lawful owner of the property about which he created the Trust. No such question is involved in the present matter. In that case, the Full Bench held that in view of absence of any remedy under the B.P.T Act to those who were not parties to the inquiry under section 19 but whose anterior or superior title would be decided in that inquiry and the general scheme of the Act, all tend to show that questions of title to the trust property would fall outside the scope of the inquiry under section 19 of the B.P.T Act. These observations are also of no much help to the respondents Vijay and others. For, they (plaintiffs) do not claim any independent title or right. They did not dispute that the properties were held by deceased Kishan Bhagat (Teli) at the time of registration of the Trust. Similarly, in “(Radhakanta Deb v. The Commissioner of Hindu Religious Endowments, Orissa)” (supra), test to determine whether a religious Trust is of a private character or is a Public Trust is illustrated. The question pertaining to jurisdiction of Civil Court was not involved in the said matter.
32. The learned trial Court rightly held that the suit was barred. The scope of section 79 of the B.P.T Act is duly considered by the trial Court. The first Appellate Court committed patent error while decreeing the suit irrespective of the settled legal position that the suit was outside the purview of section 79 of the B.P.T Act and hence, not maintainable under section 80 thereof. The first Appellate Court did not consider the issue of limitation in proper perspective. The first Appellate Court held that the suit was within limitation. No reasons are recorded in support of such finding. The impugned judgment and decree is, therefore, unsustainable.
33. For aforementioned reasons, both the appeals will have to be allowed. The first appeal No. 804/1989 is allowed. The decisions of the Joint Charity Commissioner dated 14.7.1981 and dated 16.1.2002 of the first Appellate Court are set aside and the matter is remanded to the Charity Commissioner to consider the application under section 50-A of the B.P.T Act, after giving due opportunity to the appellant. The parties may be allowed to lead evidence, if any, and the Joint Charity Commissioner may call for report from the Assistant Charity Commissioner regarding affairs of the Trust. He shall decide the application afresh within a period of nine (9) months from the date of receipt of the order of this Court. The interim arrangement made by appointment of Court-Commissioner as per order of the first Appellate Court shall be continued till the decision of the Joint Charity Commissioner. The second appeal No. 274/2002 is allowed. The judgment rendered by the District Judge, Ahmednagar in R.C.A No. 21/2000 is set aside. The suit (R.C.S No. 600/1982) is dismissed, confirming the judgment of the trial Court.
34. The parties to bear their own costs in both the appeals.
35. Order accordingly.