Bombay High CourtShri Samarth Seva Mandal vs Shri Ramdas Swami Sansthan Trust on 3 May, 2011Author:B.R. GavaiBench:B.R. GavaiMP                                    1                                    CRA273_11

          IN THE HIGH COURT OF JUDICATURE AT BOMBAY

                     CIVIL APPELLATE JURISDICTION




                                                                             
             CIVIL REVISION APPLICATION NO. 273 OF 2011




                                                     
                                 IN
                   SPECIAL CIVIL SUIT NO. 8 OF 2003

     1. Shri Samarth Seva Mandal




                                                    
        Sajjangad, A Trust registered under theBombay Public Trusts Act, 1950Having registered No. F-1 and having
        Registered office at Sajjangad, Taluka
        and District : Satara,




                                         
        Through Trustees-
                         
     2. Shri Maruti Ganpati Bhosale
        Ramdasi, President and Trustee
                        
        Age-63 years, Occ. Religious
        R/o C/o Shri Samarth Seva Mandal
        Sajjangad, Taluka and District : Satara

     3. Shri Narayan Dattatraya Khuperkar
       


        President and Trust
        Age 72 years, Occ. Retired
    



        Residing at 10B, Anjali Colony,
        Arkashala Nagar, Opp. Arkashala
        Gondmal, Satara





     4. Shri Arvind Vishnu Abhyankar Ramdasi
        Trustee, age 60 years, Occ. Religious,
        R/o C/o Shri Samarth Seva Mandal
        Sajjangad, Taluka and District : Satara





     5. Shri Madhav Balkrishna Abhayankar
        Trustee, Age 67 years, Occ. Business
        Residing at Limb, Taluka and Dist:Satara

     6. Shri Ramkrishna Vinayak Vaidya
        Trustee, age 50 years, Occ. Hotel Business
        R/o At Hotel Anandvan Bhavan
        Dutches Road, Mahabaleshwar
        Taluka Javli, District : Satara



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     7. Shri Vijay Balkrishna Deshpande
        Trustee, age 43 years, Occ. Service,
        Residing at F-2, Shreyas Apartment,




                                                                               
        1st Floor, 115, Yadogopal Peth, Satara




                                                       
     8. Shri Ramesh Buva Shembekar Ramdasi
        Trustee, age 57 years, Occ. Religious
        Work, R/o C/o Shri Samarth Seva Mandal
        Sajjangad, Taluka and District : Satara




                                                      
     9. Shri Arun Ramkrishna Godbole, Advisor
        Age 60 years, Occ. Tax Consultant
        R/o Anandi Niwas, 69, Shanivar Peth,
        Satara-2




                                         
     10.Shri Vishnu Ramchandra Sohoni
                         
        President, age 74 years, Occ. Nil
        R/o at 912, Prasanna Apartment,
                        
        Adjacent to M.S.E.B. Office
        Bhandarkar Road, Pune 411 004            ...                 Applicants

     Versus
       


     1. Shri Ramdas Swami Sansthan Trust
        Registered under theB.P.T. Act, 1950Having registration No. A-955, and
        Having its registered office at
        Bhavani Peth, Soman Smarak Mandir,





        Near Rajwada, Satara 415 002
        Through its Trustees

     2. Shri Suryaji Gavalaksh Swami
        President and Chief Swamy





        Age 59 years, Occ. Chartered Accountant
        Residing at "Raghuchandra", 500A/4,
        Sadar Bazar, Satara

     3. Shri Gangadhar Ramchandra Chaphalkar
        Swami, age 65 years, Occ. Retired
        Residing at Plot No. 12, Asmita Apartment
        Behind Kamat Hotel, Happy Colony,
        Pune 29




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     4. Shri Narayan Mahadev Kulkarni
        Trustee, age 78 years, Occ. Retired
        District Judge, Residing at Amrutwel




                                                                            
        456/1, Sadar Bazar, Opp, D.S.P. Bungalow
        Satara 1




                                                    
     5. Dr. Subhash Digambar Dabhre
        Trustee, age 53 years, Occ. Doctor
        Residing at 501, C. Sadar Bazar,




                                                   
        Satara 1

     6. The Collector and Court of Wards,
        Collector's Office, Satara




                                        
     7. Sou. Jyotsana Chandrashekhar Kolhatkar
        age 53 years, Occ. Residing at 146,
                        
        Chamanpur Peth, Satara
                       
     8. Shri Janardhan Ganesh Gadre
        Trustee, age 75 years, Occ. Religious Work
        Residing at C/o. Shri Samarth Seva Mandal
        Sajjangad
       


     9. Shri Narhari Anant Kulkarni
        Trustee, age 52 years, Occ. Editor
    



        Residing at Smrutikamal, Shri Chhatrapati
        Shivaji Nagar Hsg. Society,
        Sadar Bazar, Satara 1





     10.Shri Samarth Seval Mandal
        Sajjangad Permanent Deposit Trust
        Duly registered under theBombay Public
        Trusts Act, 1950having registered





        No. A-1732, Having its office at
        Western India Trustee And Executor
        Company Limited, 218, Pratpaganj Peth,
        Satara-2, Through Trustees

     11.Western India Trustee and Executor
        Company Limited, Trust,
        218, Pratapganj Peth, Satara




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     12.Shri Vinayak Kashinath Velankar
        Trustee, age 80 years, Occ. Retired
        Residing at Vishram Ashram,




                                                                            
        476, Vakilwadi, Sadar Bazar,
        Satara 1




                                                    
     13.Shri Narayan Mahadev Karmarkar Trustee
        Age 74 years, Occ. Religious Work
        Residing at c/o. Shri Samarth Seva Mandal




                                                   
        Sajjangad, Taluka and District : Satara

     14.Shri Bhaskar Dattatraya Paranajape
        Age 62 years, Occ. Retired
        Residing at Paranjape Wada,




                                          
        Shanivar Peth, Satara                        ...      Respondents
                          
     Mr. G. S. Godbole with Mr. P. M. Arjunwadkar for Applicants.
                         
     Mr. A. V. Anturkar, Senior Advocate i/b. S. B. Deshmukh for Respondent
     No. 2.


                                           CORAM : B.R. GAVAI, J.
       
    



                JUDGMENT RESERVED ON: 26th APRIL 2011
               JUDGMENT PRONOUNCED ON : 3rd MAY 2011





     JUDGMENT :Admit. By consent of parties, heard finally.2.           The applicants take exception to the order dated 9th August
     2010, passed by the learned 2nd Joint Civil Judge, Senior Division,
     Satara, below exhibit-110 and 113 in Special Civil Suit No. 8 of 2003
     vide which the learned Trial Judge has held that it has the jurisdiction to
     entertain the suit in question.::: Downloaded on - 09/06/2013 17:14:20 :::MP                                     5                                   CRA273_113.           The respondent-plaintiff No. 1 is a trust registered under the
     provisions of theBombay Public Trusts Act, 1950("said Act" for short).The rest of the plaintiffs are the trustees of the plaintiff No. 1 trust. The
     defendant No. 1 is also a trust registered under the said Act. Defendant




                                                     
     Nos. 2 to 13 are the trustees, office bearers and patrons of the defendant
     No. 1 trust. The defendant No. 14 is also a trust registered under the said




                                                    
     Act. Defendant Nos. 15 to 18 are the trustees of the said defendant No.
     14 trust.4.           It is the contention of the plaintiffs that there was a
     compromise entered into between the plaintiff trust and the defendant
                          
     trust on 26th October 2009 and a compromise pursis was tendered before
                         
     the Assistant Charity Commissioner, Kolhapur.          Contending that the
     respondent trust and its trustees have breached certain terms of the
     compromise, the plaintiffs have prayed various reliefs including for
       

     recovery of possession of the properties mentioned in the suit and also
     for direction to the defendant trust to pay certain amounts. In the said
    



     suit, an application came to be filed under Section 9-A by the defendants
     below exhibit 110 and 113 for framing preliminary issue regarding





     jurisdiction. The learned Trial Court vide order dated 9th August 2010
     allowed the said application and framed following preliminary issues:Preliminary Issue:i.    Whether this Court have jurisdiction to entertain,
                 decide or any try the present suit in view ofsection
                 2(4),50,51(4),52and80of Bombay Public Trust
                 Act, 1950 ?ii.   What Order ?::: Downloaded on - 09/06/2013 17:14:20 :::MP                                     6                                   CRA273_115.           Vide the impugned order, the said issue has been answered
     in the affirmative and it has been held that the court has jurisdiction to




                                                                             
     entertain the suit.    Being aggrieved thereby, the present revision
     application underSection 115of the Code of Civil Procedure.6.           Mr. Godbole, the learned Counsel for applicants submits




                                                    
     that a suit as filed by the respondents-plaintiffs is not tenable in view of
     the provisions ofSections 50and80of the said Act. The learned
     Counsel, in this respect, relies on the judgment of the Apex Court in the




                                          
     case ofChurch of North India Vs. Lavajibhai Ratanjibhai and othersreported in (2005) 10 SCC page 760.The learned Counsel also relies
                           
     on the judgment of the Apex Court in the case ofShree Gollaleshwar
                          
     Dev and others Vs. Gangawwa Kom Shantayya Math and othersreported in (1985) 4 SCC page 393.The learned Counsel further relies
     on the judgment of the learned Single Judge of this Court in the case of
       

     Lakhanlal Brijlal Purohit and others Vs. Marwadi Samshan Hanuman
     Mandir reported in 2006 (4) Bom. C.R. page 827 and Mr. Maulana
    



     Mohamed Yusuf Ismail Vs. Madarsa Vejajulu Ulum Kuran and others
     reported in 2001 (4) All MR page 211.7.           As against this, Mr. Anturkar, the learned Counsel appearing
     on behalf of respondents submits thatSection 50of the said Act would





     be applicable only when the suit is being filed by the persons interested
     in the trust. He submits that the plaintiffs, on the contrary, are the
     persons whose interests is totally adverse to the interests of the
     defendant trust. He further submits that even if the person interested is
     concerned, he can file a suit without permission of the charity
     commissioner for the enforcement of the independent civil right. It is
     further submitted that the remedy available under the said Act, is::: Downloaded on - 09/06/2013 17:14:20 :::MP                                     7                                   CRA273_11

     independent of the other remedy available under ordinary law, and
     therefore, the suit is not barred. The learned Counsel also relies on the




                                                                             
     judgment of the Apex Court in the case ofShree Gollaleshwar Dev(supra) which is relied on by the applicants.In addition thereto, the




                                                     
     learned Counsel relies on the judgment of the Division Bench of this
     Court in the case ofAmirchand Tulsiram Gupta and others Vs. Vasant




                                                    
     Dhanaji Patil and othersreported in 1992 (2) Bom.C.R. page 22 and
     the judgment of the learned Single Judge of this Court in the case ofSurayya Afzal Khan Vs. Raza Shah Fakir Takiya & Masjid Trustreported




                                          
     in 2006 (4) Mh.L.J. page 544, S. H. Jawandhiya and others Vs.
     Onkareshar Birbal Prasad Mishra reported in 1996 (2) Mh.L.J. page
                         
     897,Maharashtra Shetkari Seva Mandal Vs. Bhaurao Bayaji Garudreported in 2010 (2) Mh.L.J. page 612, Vidarbha Kshatriya Mali
     Shikshan Sansta Vs. Mahatma Fuley Shikshan Samiti Amravati reported
     in 1986 (0) BCI page 64 and in the case ofPandurang Sakharam Patil
       

     Vs. Nanded Parsi Anjuman Trustreported in 2011 (1) Mh.L.J. page524.8.           For ascertaining the issue regarding the jurisdiction of the





     learned Trial Court, what would be relevant is the averments in the
     plaint.   Equally, the averments in the plaint will have to be read
     conjointly and not in piecemeal. It is the specific case of the plaintiffs





     that the defendant has breached various conditions which were agreed in
     the compromise pursis dated 26th October 1959. It is the further case of
     the plaintiffs that the defendant No. 1 was collecting the donations as an
     agent of plaintiff No. 1. It was their case that as such, the amounts,
     collected by the defendant No. 14 and illegally transferred to the
     defendant No. 1, were required to be paid back to the plaintiffs. It was
     also the claim of the plaintiffs that the plaintiffs are entitled to recover::: Downloaded on - 09/06/2013 17:14:20 :::MP                                        8                                    CRA273_11

     the possession of property mentioned in the suit. It could, thus, clearly
     be seen from the averments of the plaint, that the plaintiffs are not




                                                                                 
     claiming to be the persons interested in the defendant No. 1 trust. On the
     contrary, it is the claim of the plaintiff that the plaintiff trust is entitled to




                                                         
     the property and the donations collected by the defendant No. 1 trust.9.            In the case of Vidarbha Kshatriya Mali Shikshan Sansta
     (supra), in-0.85" identical facts, there was a dispute between two public
     trusts. The plaintiff as well as the defendant were the public trusts.There was an agreement arrived at between the parties, according to
     which the plaintiff trust was allowed to conduct school classes in some
                           
     of the rooms in a building belonging to the defendant trust. According to
                          
     the said agreement, after the academic session is over, the plaintiff was
     to hand over the class rooms to the defendant for being let out for the
     marriage or some other functions, so as to enable it to get income from
       

     the same. It was further agreed that after the summer vacation was over,
     the rooms were to be handed over back to the plaintiff for running the
    



     school classes. Contending that as per the amendment, the defendant
     has not handed over the possession after the summer vacation of 1980, a





     suit came to be filed by the plaintiff, seeking an order restraining the
     defendant from interfering with its rights to run the school classes. An
     application filed by the defendant trust underSection 9-Aof the Code of





     Civil Procedure raising an issue regarding the jurisdiction was rejected
     by the trial court. In the revision filed before this Court, this Court has
     observed thus:4.     A perusal of the above provisions would show that
            in relation to the public trusts, a special right is created
            even in the third person like the "Charity
            Commissioner" or the "persons having interest" who
            may not have their own civil rights to enforce to institute::: Downloaded on - 09/06/2013 17:14:20 :::MP                                    9                                   CRA273_11

           a suit in respect of any matter covered by the said
           section which would not ordinarily be there if their own
           rights were not involved. It may be seen that such a




                                                                            
           special suit lies not in the normal forum where any suit
           under the Code lies but in the special forum of the




                                                   
           District Court, as provided thereunder. In my view,section 50of the Act is a section analogous to section 92
           of the Code although to a certain extent as regards the
           subject-matter it may be wider than it. However, what is




                                                  
           most important is that the definition of the expression
           "persons having interest" given insection 2(1)of the Act
           include only certain classes of persons. The suit
           contemplated bysection 50can be instituted either by
           the "Charity Commissioner" or the "persons interested"with his consent. Since all persons who want to enforce
           their civil rights are not covered by the definition of the
                         
           expression "persons having interest" they would be left
           to the mercy of the Charity Commissioner or the persons
                        
           having interest covered by the definition clause for
           enforcement of their private rights if the suit can be
           instituted only in the manner as provided insection 50.
           Even assuming that such persons are covered by the
           definition clause, they would still be at the mercy of the
       


           Charity Commissioner for enforcement of their personal
           rights.    Such a consequence in my view is not
    



           contemplated bySection 50of the Act. The persons
           who have their own rights to enforce cannot, therefore,
           be compelled to follow the procedure laid down in the





           said section. A suit to enforce one's own civil right
           instituted under the Code in the ordinary forum provided
           for the same is thus competent.(Emphasis supplied)





                 It can, thus, clearly be seen that this Court in unequivocal
     terms has held that to enforce one's own civil rights instituted under the
     Code in the ordinary forum provided for the same is thus competent.10.In the case ofAmirchand Tulsiram Gupta(supra), the
     suit was filed by the trustees of the trust seeking a declaration that the
     plaintiffs or the trustees of the charitable trust were the owners of the::: Downloaded on - 09/06/2013 17:14:20 :::MP                                    10                                   CRA273_11

     suit land and that the defendants be directed to handover vacant and
     peaceful possession of the suit lands and for a permanent injunction,




                                                                             
     restraining the defendants from entering upon the suit lands.                  The
     learned Single Judge of this Court held that the suit was not maintainable




                                                     
     in the absence of the permission of the court commissioner.                    The
     Division Bench of this Court allowing the appeal and reversing the




                                                    
     finding of the learned trial judge has observed thus:7.     It is necessary in this connection to refer to
                 the decision in A.I.R. 1986 S.C. 231 (Shree
                 Gollaleshwar Dev and others v. Gangawwa Kom




                                          
                 Shantayya Math and others). The Supreme Court
                 held thatsection 50created and regulated a right to
                         
                 institute a suit by the Charity Commissioner or by
                 two or more persons interested in the trust, in the
                 form of supplementary statutory provisions without
                        
                 defeasance of the right of the manager or trustee or a
                 shebait of an idol to bring a suit in the name of idol
                 to recover the property of the trust in the usual way.In other words, the Supreme Court accepted the
       


                 view taken by the Division Bench of this Court that
                 the right of a trustee to bring a suit in the usual way,
    



                 that is in exercise of rights under the Common Law
                 is not affected by provisions ofsection 50of the
                 Public Trusts Act. The ratiolaid down bythe





                 Supreme Court was followed by a Single Judge of
                 this Court in the decision reported in 1986 Mah.L.J.
                 773 (Vidarbha Kshatriya Mali Shikshan Sanstha v.
                 Mahatma Fuley Shikshan Samiti, Amravati), holding
                 that trustees who want to enforce their civil rights





                 are not covered by definition of the expression
                 "person having interest" and are entitled to file suits
                 without obtaining prior permission. The same view
                 was taken by another Single Judge in the decision
                 reported in 1988(2) Bombay Cases Reporter 429,
                 (Leelavati w/o Vasantrao Pingle v. Dattraya D.
                 Kavishar and others). The same view was taken by
                 another Single Judge in an unreported decision dated
                 September 13, 1990 delivered in Original Side Suit
                 No. 958 of 1975 and the decision of the Single::: Downloaded on - 09/06/2013 17:14:20 :::MP                                   11                                  CRA273_11

                Judge was confirmed in Appeal No. 1315 of 1990 by
                the Division Bench by judgment dated March 14,
                1991.The Division Bench specifically disapproved




                                                                           
                the view taken by the trial Court in the present case
                holding that the decision reported in 69Bom.L.R.




                                                   
                472, Rajgopal Raghunathdas Somani v. Ramchandra
                Hajarimal Jhavar, still holds field andsection 50does not prohibit a suit being filed by trustees to
                recover possession from a trespasser without




                                                  
                obtaining prior permission. We are in respectful
                agreement with the view taken by the Division
                Bench and the learned Single Judges, and we
                entirely disagree with the finding of the trial Judge
                that the suit was not maintainable in absence of




                                         
                permission. The learned trial Judge was clearly in
                error in holding that after amendment ofsection 50andsection 2(10)(e), it is incumbent upon the
                trustees to obtain prior approval of the Charity
                        
                Commissioner to institute suit against a trespasser
                for recovery of possession. As the finding of the
                trial Judge on this count is set aside, consequently
                the finding that the High Court had no jurisdiction to
                entertain the suit and the suit could be filed only in
       


                the City Civil Court after obtaining prior approval
                cannot stand.(Emphasis supplied)11.         The learned Single Judge of this Court in the case ofMaharashtra Shetkari Seva Mandal(supra) has also taken a view that
     the right claimed in the suit for declaration and injunction in respect of





     property over which the plaintiff, who is not a "person interested" claims
     title, cannot be said to be barred underSection 80of the Act nor is the
     consent of the charity commissioner required prior to institution of such
     a suit.An identical view has been taken by another learned Single Judge
     in the case ofPandurang Sakharam Patil(supra).In the case ofSurayya Afzal Khan(supra), the another learned Single Judge of this
     Court has held that in a suit filed by trustees of a charitable trust for::: Downloaded on - 09/06/2013 17:14:20 :::MP                                     12                                     CRA273_11

     eviction of a trespasser or for a recovery of possession and/or such
     action, the permission of the charity commissioner is not necessary.The




                                                                                
     learned Single Judge of this Court in the case of S. H. Jawandhiya
     (supra) has also held thatSection 51is applicable only to the suits which




                                                        
     are filed by persons having interests in the trust. As already discussed
     hereinabove, the present applicants cannot be said to be the persons




                                                       
     interested in the defendant trust.      On the contrary, their interest is
     adverse to the interests of the defendant trust.12.          Insofar as reliance placed by the learned Counsel for
     applicants on the judgment of Church of North India is concerned,
                          
     undisputedly, the plaintiffs therein were the persons who were having
                         
     interests in the trust and as such the said judgment would not be
     applicable to the facts of the present case. So also in the case of the
     Lakhanlal Brijlal Purohit (supra) and Mr. Maulana Mohamed Yusuf
       

     Ismail (supra), the plaintiffs were the persons interested in the trust. In
     that view of the matter, those judgments would not be applicable to the
    



     facts of the present case.13.          In that view of the matter, it cannot be said that the findings
     of the learned Trial Court, that it has jurisdiction to entertain the suit in
     question, are erroneous or illegal.        No interference is warranted.Rejected.14.          At this stage, Mr. Arjunwadkar, the learned Counsel
     appearing on behalf of Applicants requests for stay to the further
     proceedings before the learned Trial Court.::: Downloaded on - 09/06/2013 17:14:20 :::MP                                   13                                  CRA273_1115.         Mr. Tanaji Mahatugude, the learned Counsel appearing on
     behalf of respondent No. 2, vehemently opposes the application.16.         The suit is of the year 2003. In the light of the observations




                                                   
     made by me, I do not find that the case is made out for entertaining such
     a request. Rejected.(B.R. GAVAI, J)::: Downloaded on - 09/06/2013 17:14:20 :::