Sitalsing Asaram Naik and others vs Narbadabai wd/o Laxmanprasad Shukla and others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2001 Supreme(Bom) 687

IN THE HIGH COURT OF BOMBAY
(AURANGABAD BENCH)
A.P. Deshpande, J.
Sitalsing Asaram Naik others.... Petitioners.
Versus
Narbadabai wd/o Laxmanprasad Shukla others.... Respondents.
Civil Revision Application No. 216 of 1994, decided on 27-7-2001.
Advocates appeared :
S.V. Gangapurwala, for petitioners.
Ajay B. Bajpai and Shyam Bissa, for respondents 1 2.

Headnote:Bombay Public Trust Act, 1950 - Sections 79 and 80 - Civil Procedure Code, 1908, Section 9 - Trust property - Dispute as to - Jurisdiction of Civil Court - Enquiry under Section 19 of Bombay Public Trusts Act held suit property to take trust property - Upheld by High Court - Objectors in enquiry filed fresh civil suit relating to same property - Held - Juris- diction of Civil Court not barred in view of Sections 79 and 80 of Act - Bombay Public Trust Act provides no remedy to third parties - Not a self contained Code. - The Full Bench has already concluded that the issue of title of an adversary to the trust cannot be gone into by the authority under Section 19 of the Act and the same has to be decided before the general forum viz., the Civil Court. The learned counsel for the petitioner invited my attention to Section 11, Explanation VIII of CPC to buttress this point that by operation of the principle akin to res judicata, the plaintiffs would be precluded from filing the civil suit. It is the submission of the learned counsel that an issue heard and finally decided by a Court of limited jurisdiction, competent to decide such issue, shall operate as res judicata in a subsequent suit, notwithstanding that such Court of limited jurisdiction was not competent to try such subsequent suit or the suit in which such issue has been subsequently raised. The learned counsel is perfectly right in saying that if the Court of limited jurisdiction was competent to decide an issue, them a decision on that issue would always act as res judicata and preclude the party to the said proceedings from instituting a suit before the Civil Court. What is to be seen in the present case is as to whether the authority under Section 19 of the Act was competent to decide the issue. The Full Bench has already held in the above-referred judgment that an authority under Section 19 is not competent to decide the question of title raised by an adversary to the interest of the Public Trust. Hence it is not possible to hold that the bar of res judicata or the principle of res judicata would come in the way of the plaintiffs to institute the suit. As a matter of fact, answer to the first question, answers the question of res judicata as well.

JUDGMENT - A.P. DESHPANDE, J.:--The present petitioners, who are the original defendants, are the trustees of a Public Trust, by name, “Panchayati Shri Balaji Mandir”, Chelipura, Aurangabad. The suit bearing Special Civil Suit No. 324/93 came to be filed by the plaintiffs, who are the legal representatives of deceased Laxmanprasad and are claiming title through him over the suit property. During the life-time of Laxmanprasad, he had claimed the title over the suit property and had opposed the claim of the trustees of the trust that the property belongs to the Public Trust. In the suit, the trustees/defendants filed an application under section 9-A of the Code of Civil Procedure for framing of preliminary issues and the learned Judge of the trial Court did frame the issues and decided the same as preliminary issues. The issues that came to be framed are as under:-

(1) Whether jurisdiction of Civil Court is barred in view of sections 79 and 80 of the Bombay Public Trusts Act, 1950?

(2) Whether the suit is not maintainable for want of permission under section 51 of the Bombay Public Trusts Act, 1950?

(3) Whether Charity Commissioner is a necessary party?

(4) Whether the findings of Assistant Charity Commissioner, Aurangabad which are confirmed upto High Court operates res judicata?

2. Both the parties did not lead any evidence touching the preliminary issues but put forth the arguments in support of their contentions. The trial Court held that jurisdiction of the Civil Court is not barred and that the suit as filed is maintainable in law.

3. Before I proceed to consider the submissions on behalf of the petitioners and the respondents, it would be appropriate to refer to the earlier litigation, as the same has a bearing on the issues involved in the present revision application.

4. The petitioners/trustees on 24-8-1973 filed an application under section 18 of the Bombay Public Trusts Act, 1950 (hereinafter, for the purposes of brevity, referred to as “the Act”) before the Assistant Charity Commissioner to register the trust, by name, "Panchayati Shri Balaji Mandir" as a public trust, so also applied for registration of the suit property as trust-property. The said trust possesses no other property but the suit property. A public notice came to be issued after filing of the application by the trustees and one Laxmanprasad appeared in the proceedings and filed his objections contending that the property in question is owned by him and the proposed trust is not the owner thereof. The plaintiffs are the legal heirs of this Laxmanprasad. Initially, the enquiry was dropped by the Assistant Charity Commissioner but the trustees filed by appeal challenging the order dropping the enquiry and the Deputy Charity Commissioner allowed the appeal and remanded the matter back to the Assistant Charity Commissioner, Aurangabad for making an enquiry. After remand, the Assistant Charity Commissioner made an enquiry and passed a judgment holding that Panchayati Shri Balaji Mandir is a Public Trust and the same be registered as a Public Trust.

5. Being aggrieved by the judgment of the Assistant Charity Commissioner, Laxmanprasad filed an Appeal No. 81/1977 before the Deputy Charity Commissioner. The Deputy Charity Commissioner confirmed the order passed by the Assistant Charity Commissioner. During the pendency of this appeal before the Deputy Charity Commissioner, Laxmanprasad died. The present respondents who are the plaintiffs in the suit, came to be brought on record as legal representatives of the deceased. The legal representatives of Laxmanprasad filed Miscellaneous Application before the District Judge, Aurangabad under section 72 of the Act and challenged the order passed by the Deputy Charity Commissioner.

6. The District Judge dismissed the appeal filed by the legal representative of Laxmanprasad/present respondents and concurred with the view taken by the Assistant and Deputy Charity Commissioners. The learned District Judge though confirme

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2001 Supreme(Bom) 687

Cases Referred (1)