Important Point
Order of Charity Commissioner, direction earlier trustees to handover management and possession of trust property to new trustees appointed under scheme framed by him under Bombay Public Trusts Act, 1950, could be validly executed as a decree.

Headnote:Bombay Public Trusts Act, 1950 - Section 50A(4) - Bombay Tenancy and Agricultural Lands (Vidharbha Region) Act, 1958-Section 125 - Order of Charity Commissioner framing scheme-Whether executable as a decree-Original scheme framed was modified in suo motu proceedings by Commissioner-Second respondent was removed from trusteeship and he was directed to handover management and trust property to appellants-Refusal-Execution petition before Civil Court-Objection by second respondent that order of Commissioner not a decree and property tenanted to first respondent-Rejected by Execution Court -High Court upholding that order of Commission could be validly executed as a decree but holding that issue of tenancy arises which should be referred to Tehsildar u/s 125 of Agricultural Tenancy Act - High Courts order regarding reference to Tehsildar not correct as no particulars given in pleadings of respondents-That part of order set aside.
       Held : No particulars have been given by the 1st respondent or the second respondent relating to this tenancy-how it was created, when it was created and the terms thereof. Learned counsel for the respondents, however, has relied upon an order of the Agricultural Lands Tribunal dated 27.2.71 which was passed in suo motu proceedings taken under Section 49A of the Bombay Tenancy and Agricultural Lands (Vidharbha Region) Act, under which proceedings for transfer of ownership to the alleged tenants of whom the 1st respondent was one, were dropped on the ground that properties belonging to the public trust were exempted under Section 129 of the said Act. We fail to see how this will help the 1st respondent because the question whether he was in fact a tenant over the said land or not, was not examined in those suo motu proceedings, since, in any event, the lands of the said trust were exempted from the operation of Section 37 of the said Tenancy Act. In this view of the matter the Executing Court rightly rejected the objections of the respondents and handed over the possession of the trust lands to the trust on 15.6.85. The District Judge has also dismissed the appeal in a lengthy judgment. The High Court in Revision, in these circumstances ought not to have interferred in the absence of any factual basis in support of the plea of tenancy raised by the 1st respondent. (Paras 11 & 12)
       Held consequently : The impugned order of the High Court, insofar as it directs framing of an issue relating to the tenancy of the 1st respondent and directs this issue to be decided by the Tehsildar, is set aside. The direction in the impugned order directing possession of the trust properties to be handed over to the 1st respondent is also set aside. (Para 13)
       (ii) Code of Civil Procedure, 1908-Order 6, Rule 11-Pleadings - Requirements - Order of Charity Commissioner directing respondents to handover possession of trust property to appellants-Execution petition before Civil Court-Objection by respondents, inter alia, that property leased out-No particulars of tenancy given in pleadings-Execution Court ordering handing over of possession-High Court holding issue of tenancy arises which has to be referred to Tehsildar u/s Section 124 of Bombay Agricultural Tenancy Act-Whether correct?-No-In absence of particulars relating to tenancy in pleadings High Court ought not to have interferred with order of lower Court. (Paras 11 & 12)

Order

The appellants 1 to 3 are the trustees of Appellant No. 4 which is a public trust registered under the Bombay Public Trusts Act, 1950. The second respondent is a former trustee of the said trust while the first respondent claims to be a tenant of the lands belonging to the said trust. The land in dispute in Survey No. 14 situated at Warud Walidatpur, Yavatmal which belongs to the said trust. The present proceedings arise from an order in Revision passed by the High Court in Execution Proceedings.

2. The Deputy Charity Commissioner by his order dated 17th of January 1975, framed and settled a scheme for the management of the said trust and appointed certain trustees. The second respondent, who had throughout acted as a trustee of the said trust was also appointed as one of the trustees under the said order. The scheme was thereafter amended by the Charity Commissioner by his order dated 24th of October, 1980 in suo motu proceedings. He ordered substitution of certain new trustees by removing earlier trustees.

3. The second respondent, by this order was removed as a trustee and he was directed to handover possession of the trust property as well as management of the trust to the trustees appointed under the order of 24th of October, 1980. Since the second respondent did not handover possession of the properties of the said trust which consisted of the said land bearing Survey No. 14 and also did not handover management of the said trust, the trustees moved the Charity Commissioner, Chandrapur. The Assistant Charity Commissioner by his order dated 19th of July, 1984 held that the scheme which was framed by the order of 17th of January, 1975 and modified by the order of 24th of October, 1980 was a decree under the provisions of Section 50A(4) of the Bombay Public Trusts Act, 1950. Therefore, the trustees should ask for execution of the scheme as a decree.

4. Accordingly, the present trustees i.e. appellants 1 to 3 who were the trustees at the material time, filed a Regular Execution Application No. 98/84 in the Court of the Civil Judge, Senior Division, Yavatmal against the respondents praying for execution of the said scheme and asking for possession of land bearing Survey No. 14 from the respondents. On notice being issued, the respondents appeared in the Execution Proceedings. The respondents in the Execution Proceedings filed joint application dated 17th of January, 1985 being Exhibit No. 8. In the application filed jointly on behalf of both the respondents the following statement was made in Paragraph 2; “That the applicants did not obtain any decree of Competent Court against the non-applicants for delivery of possession from non-applicant No. 2 who is tenant over the field in question”. The non-applicants are the present respondents while the applicants are the present appellants 1 to 3. Again in paragraph 4 of this application it is stated, inter-alia, “moreover the non-applicant No. 2 is a tenant over the said field Survey No. 14 of Walidatpur and he is entitled to retain possession of the said land till the eviction order from Tenancy Court. Even the District Court has no jurisdiction to try any suit for possession against him”. There are no particulars mentioned in this application as to when this alleged tenancy was created in favour of non-applicant No. 2, that is to say, the present 1st respondent. No date of creation of tenancy has been mentioned; nor is it mentioned as to who created this tenancy in favour of the 1st respondent or how this tenancy came into existence. Even the quantum of rent payable is not mentioned. No particulars are given about this alleged tenancy in Exhibit 8. The present appellants in their reply denied any tenancy in favour of the 1st respondent. They pointed out that the first respondent is the brother-in-law of the ex-trustee-second respondent and the tenancy was being claimed by both the respondents only to defraud the trust of this property. It was also submitted by the appel

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1998 Supreme(SC) 1137

Important PointOrder of Charity Commissioner, direction earlier trustees to handover management and possession of trust property to new trustees appointed under scheme framed by him under Bombay Public Trusts Act, 1950, could be validly executed as a decree.

Cases Referred (1)

Important Point
Order of Charity Commissioner, direction earlier trustees to handover management and possession of trust property to new trustees appointed under scheme framed by him under Bombay Public Trusts Act, 1950, could be validly executed as a decree.