Supreme Court of IndiaThe General Manager, Department Of ... vs Jacob, S/O Kochuvarkey Kalliath, ... on 1 April, 2003Author:G.P. MathurBench:S. Rajendra Babu,G.P. MathurCASE NO.:
Appeal (civil)  1352-53 of 1993

PETITIONER:
Sahebgouda (dead) by LRs. & Ors.

RESPONDENT:
Ogeppa & Ors.

DATE OF JUDGMENT: 28/03/2003

BENCH:
S. Rajendra Babu & G.P. Mathur

JUDGMENT:JUDGMENT

G.P. Mathur, J.These appeals by special leave have been preferred  by the appellants
against the judgment and decree dated July 24, 1992 of the High Court of
Karnataka by which the Second Appeals preferred by the	respondents  were
allowed and the suit filed by the appellants was dismissed on the ground that
the same was barred bySection 80of Bombay Public Trust Act, 1950
(hereinafter referred as 'the Act').The question in issue relates to the jurisdiction of the Civil Court to
entertain the suit, which was instituted by the appellants in the Court of
Principal Munsiff, Bijapur.  The case of the appellants in brief was that they
are the ancestral Pujaris of the Amogsidda Temple situated  in Survey No.
214, particularly Survey No. 214-B of  Jalgeri Taluka Bijapur, and prior to
them their father and grand-father performed Puja by turns.  The appellant
No.1 has eight annas right of Puja and other appellants have the remaining
right of Puja which right the appellants and their ancestors had been
exercising by turns.  The appellants performed Puja throughout the  year and
at the time of annual Jatra of Chhatti Amavasya	 get the offerings made by
Bhaktas to the God Amogsidda in the aforesaid temple and this has been
going on for a long time probably from the time of Amogsidda's death and
construction of	 Samadhi about six hundred years back. The Samadhi is the
God of Amogsidda in the suit temple and the appellants have been
performing Puja and getting the benefit of offerings and serving them as
ancestral wahiwatdar Pujaris of the temple being descendants of Amogsidda.
The respondents come from Arkeri village and claimed to be related to
Amogsidda being Kurbars and disputed the right of the appellants and their
ancestors.  The respondents and some others filed a suit for injunction
against the ancestors of appellants being OS No. 88 of 1944 but the same
was dismissed. Thereafter they again started obstructing the appellants in
performance of Puja in the temple in 1967 and therefore the present
appellant no.4 and father of appellant no.3 had filed OS No.347 of 1967 for
injunction for restraining the respondents from causing any obstruction in
the performance of Puja but the suit was dismissed for want of prosecution.
The appellants have been continuously exercising their right of Puja till now
without any objection and the annual Jatra taking place in the area around
the temple is managed by a Panchayat led by Siddalingappa Karbasappa
Siralshetty  and the Pujari.  It was further pleaded that the appellants and
Bhaktas had taken steps to get the temple and the land annexed to it
registered as Public trust with the Assistant Charity Commissioner at
Belgaum and in that connection Inquiry No.321 of 1980 had been instituted
in his office.	The  reliefs claimed in the suit are as under :(A)	A decree of declaration that plaintiffs are the ancestral wahiwatdar-Pujaris and thus have the Pujariki rights of performing Puja at all
times of the Amogsidda God in suit temple at all times by turns
among themselves as stated above;(B)	A consequential decree of permanent prohibitory injunction
restraining defendants, their agents and assigns or representatives
from interfering in any manner whatsoever with the plaintiff's right of
Puja of Amogsidda God in the Temple;(C)	Any other relief, the Court deems fit in the circumstances of the case.
The respondent No.1 filed written statement denying the allegations
made in the plaint, and pleaded that as the suit instituted by the appellants in
the year 1967 had been dismissed in default, the present suit was barred by
order IXRule 9 C.P.C.	The respondent No.4 filed written statement
contesting the suit on the grounds, inter alia, that the appellants did not have
any right whatsoever to perform the Puja as Pujaris in the temple and that
the Amogsidda temple is situate in Mammatti Gudda in RS No.214/B of
Jalageri village; that neither the appellants nor their ancestors ever
performed Puja in Amogasidda Temple nor have they received any offerings
made by the Bhaktas  and that the allegations made in the plaint that the
respondents had put any obstructions and started picking up quarrels was
false.On the pleadings of the parties the learned Munsiff framed 11 issues
and Issue No.8 was whether the suit is barred on account ofSections 79and80of the Act.	The learned Munsiff decided issue No.8 in favour of the
appellants and held that the suit was not barred by the aforesaid provisions
of the Act.  After appraisal of the oral and documentary evidence he partly
decreed the suit for a declaration that the  appellants and the respondents  are
the Pujaris of the suit temple situate at Mammatti Gudda.  The appellants
along with a Devasthan Committee of Jalageri village shall perform Puja and
Jatra of Amogsidda  temple situate at Mammatti Gudda upto 15th day of
coming Chatti Amavasya of 1986 and they shall hand over the possession of
the suit temple from 16th day of Chatti Amavasya of 1986 to the
respondents and the respondents shall perform Puja and also jatra of the suit
temple till 15th day of future Chatti Amavasya.	 It was also declared that the
appellants and respondents have got right of Puja and celebration of Jatra on
yearly turn as stated aforesaid.  The appellants  and also the respondent Nos.
2, 4 and 6 preferred  appeals against the decree passed by the learned
Munsiff.  The First Appellate Court allowed the appeal of the appellants and
dismissed the appeal of the respondents and the decree passed by the trial
court was modified.  The appellants were held to be the hereditary Pujaris  of
Amogsidda temple situated at Mammatti Gudda and other temples
surrounded by it situated both in Jalageri and Arakeri village limits.	The
respondents were further prohibited from causing obstruction in the
peaceful performance of Puja  by the appellants in Amogsidda temple.
Feeling aggrieved by the judgment and decree of the First Appellate
Court, the respondents preferred second appeals before the High Court.	The
High Court has observed that a very important point regarding the effect of
filing of the application for registration of the temple before the Assistant
Charity Commissioner, Belgaum and the pendency of inquiry before him
regarding  registration of the temple as a Trust escaped the notice of the
courts below.  It was  held that the question whether the temple is a public
trust could only be decided by the Assistant Charity Commissioner and this
point could not be decided by the Civil Court as the jurisdiction of the Civil
Court was barred underSection 80of the Act.  It was further held that the
appellants are claiming rights not only as Pujaris but as Pujari-cum-trustees
and therefore it cannot be said that the suit of the appellants was only for
Pujariki rights.  It was accordingly held that the jurisdiction of the civil court
was barred underSection 80of the Act, in view of the inquiry which was
pending before the Assistant Charity Commissioner Belgaum.  On these
findings the second appeals were allowed and the suit filed by the appellants
was dismissed.Learned counsel for the appellants has submitted that bar of the
jurisdiction of the civil court is created bySection 80of the Act but the said
provision has no application on the facts of the present case and therefore the
view taken by the High Court that the suit filed by the appellants is barred by
the aforesaid section is clearly erroneous in law.  Learned counsel for the
respondents has, on the other hand, submitted that on the pleadings of the
parties the question which requires adjudication comes expressly within the
purview of theBombay Public Trusts Actand therefore the bar created bySection 80of the said Act  was applicable and the Civil Court had no
jurisdiction to try the suit or to grant a decree in favour of the appellants and
consequently the High Court was perfectly correct in holding that the suit
was barred by the aforesaid provision.As the preamble shows, theBombay Public Trusts Act, 1950has been
enacted to regulate and to make better provision for the administration of
public, religious and charitable trusts.Section 2 (13)defines a public trust
and it means an express or constructive trust for either a public religious or
charitable purpose or both and includes a temple, a math, a wakf, church,
synagogue, agiary or other place of public religious worship, a dharmada or
any other religious  or charitable endowment and a society formed either for
a religious or charitable purpose or for both and registered under theSocieties Registration Act, 1860.Section 2 (18)defines a trustee and it
means a person in whom either alone or in association with other persons,
the trust property is vested and includes a manager.Section 18provides that
it shall be the duty of the trustee of a public trust to which the Act has been
applied to make an application for the registration of the public trust and
such application is to be made to the Deputy or Assistant Charity
Commissioner of the region.  Sub-section (5) of this Section enjoins that the
application shall, inter alia, contain the particulars regarding matters
enumerated in clauses (ai) to (viii), thereof, namely, the names and addresses
of the trustees and the manager, the mode of succession to the office of the
trustee, list of the movable and immovable trust property with their
descriptions and particulars, the approximate value of movable	and
immovable property, average annual income and expenditure, etc.Section
19lays down that on receipt of an application underSection 18the Deputy
or Assistant Charity Commissioner shall make an inquiry in the prescribed
manner for the purpose of ascertaining whether a trust exists and whether
such trust is a public trust, whether any property is the property of such trust,
the names and addresses of the trustees and manager,  the mode of
succession to the office of trustee, the origin, nature and object of such trust
and the amount of  gross average annual income and expenditure thereof.Section 79provides that any question whether or not a trust exists and such
trust is a public trust or particular property is the property of such trust shall
be decided by the Deputy or Assistant Charity Commissioner or in appeal by
the Charity Commissioner as provided by the Act.  The decision of the
Deputy	or Assistant Charity Commissioner or the Charity Commissioner in
appeal, as the case may be,  unless set aside by the decision of the Court on
application or by the High Court in appeal, shall be final and conclusive.Section 80is important and it reads as under :-"80 Bar of Jurisdiction: 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, and in respect of which the decision or order of
such officer or authority has been made final and
conclusive."The question whether the suit filed by the appellants is barred by the
provisions ofSection 80of the Act has to be examined in the light of the
provisions referred to above.Section 9of Code of Civil Procedure clearly
lays down that the Civil Court shall have jurisdiction to try all suits of a civil
nature excepting suits of which their cognizance is either expressly or
impliedly barred.  It is well settled  that the Civil Court has jurisdiction to try
all suits of civil nature and the exclusion of jurisdiction of the Civil Court is
not to be rightly inferred.  Such exclusion must be either explicitly expressed
or clearly implied.InMusamia Imam Haider Bax Razvi Vs. Rabri
Govindbhai Ratnabhai & Ors.AIR 1969 SC 439 (para 7) this Court
observed that it is necessary to bear in mind the important principle of
construction which is that if a statute purports to exclude the ordinary
jurisdiction of a civil court it must do so  either by express terms or by the
use of such terms as would necessarily lead to the inference of such
exclusion.This principle was reiterated inDewaji v. GanpatlalAIR 1969
SC 560.It is also well settled  that a provision of law ousting the jurisdiction
of a Civil Court must be strictly construed and onus lies on the party seeking
to oust the jurisdiction to establish his right to do so. InVLNS Temple Vs. I.
Pattabhirami ReddiAIR 1967 SC 781 Subba Rao,J. speaking for the Court
held as under in para 13 of the reports:"UnderSection 9of the Code of Civil Procedure,
the courts shall have jurisdiction to try all suits of a
civil nature excepting suits of which their
cognizance is either expressly or impliedly barred.
It is a well settled principle that a party seeking to
oust jurisdiction of an ordinary civil court shall
establish the right to do so.Section 93of the Act
does not impose a total bar on the maintainability
of a suit in a civil court.  It states that a suit of the
nature mentioned therein can be instituted only in
conformity with the provisions of the Act; that is
to say, a suit or other legal proceeding in respect of
matters not covered by the section can be instituted
in the ordinary way.  It therefore imposes certain
statutory restrictions on suits or other legal
proceedings relating to matters mentioned
therein."The allegations made in the plaint are that the appellants are the
ancestral Pujaris of the temple and prior to them their father and grand-father
had been  performing Puja by turn and they also get the offerings  made by
the Bhaktas to the God	Amogsidda in the temple.  The appellants claimed
that their ancestors have been performing Puja and getting the offerings ever
since the Samadhi was made about six hundred years back.  This right they
claimed as ancestral wahiwatdar Pujaris	 of the temple being descendants of
Amogsidda.  According to the appellants, the  cause of action for filing the
suit arose when the respondents created obstruction in performance of Puja
by the appellants in the temple and they took away some Puja articles from
there.	The reliefs claimed are for a declaration that the appellants are
wahiwat Pujaris	 and thus have the Pujariki rights of performing Puja in the
temple at all times and also a decree for injunction restraining the
respondents from interfering in any manner whatsoever with the appellants'
right of Puja.	It may be noted thatSection 18of the Act casts a duty upon
the trustee of a public trust to which the Act has been applied to make an
application for the registration of the public trust.  The Deputy or Assistant
Charity Commissioner to whom such an application is made is required
underSection 19of the Act to make an inquiry for the purpose of
ascertaining matters enumerated in clauses (i) to  (viii) thereof and they
relate to the question whether a trust exists and whether the same is a public
trust, whether any property is the property of such trust, the names and
addresses of the trustees and manager of such trust, the mode of succession
to the office of the trustee, the origin, nature and object of such trust, the
amount of gross average annual income and  expenditure thereon.
The allegations made in the plaint show that the only  right claimed by
the appellants is that of being ancestral Pujaris of the temple.  The appellants
do not claim themselves to be the trustees of any trust as defined underSection 2(18)of the Act.  No declaration regarding the existence or
otherwise of a trust or that any particular property is the property of such
trust which comes within the purview of the Deputy or Assistant Charity
Commissioner underSection 79of the Act has been claimed.  The only
relief claimed is a declaration regarding the right of the appellants to
function as hereditary Pujaris or their Pujariki rights of performing Puja in
the temple and a consequential decree for injunction for restraining the
respondents from interfering with the aforesaid rights of the appellants.  The
reliefs so claimed do not at all come within the ambit ofSection 19orSection 79of the Act on which the Deputy or Assistant Charity
Commissioner has the jurisdiction to hold an inquiry and give a decision.
Therefore, the bar ofSection 80of the Act which by the express language
used is confined to "any question which is by or under this Act be decided or
dealt with by any officer or authority under this Act and in respect of which
the decision or order of such officer or authority has been made final and
conclusive" would not apply.The  only ground given by the High Court for holding that the suit is
barred by the aforesaid provision is that in para 3 of the plaint it is admitted
that the appellants and other remaining Bhaktas have taken steps to get the
temple and land annexed to it, registered as public trust with the Assistant
Charity Commissioner at Belgaum and that one of the appellants admitted
in his statement that he along with others had moved an application for
registering temple property as a public trust and inquiry in that regard was
pending.  In our opinion the mere fact that the appellants along with others
had taken steps to get the temple and the land annexed to it registered as
public trust by moving an application to that effect underSection 18of the
Act before the Assistant Charity Commissioner cannot in any manner oust
the jurisdiction of the Civil Court in view of the allegations disclosed in the
plaint and the relief claimed therein.	The cause of action for filing the suit is
that in the night of March 3, 1982 respondents created obstruction in the
performance of Puja by the  appellants in the temple and taking away of
certain Puja articles by them  which made it impossible for the appellants to
proceed with the Puja.	In our opinion the decision of the controversies
raised in the suit do not at all require adjudication of any such matter which
may have to be done by the Assistant Charity Commissioner while
exercising his powers underSection 19of the Act  on the application which
was pending before him for registration of the temple and its property as
public trust.  We are, therefore, of the opinion that the view taken by the
High Court is clearly erroneous in law and the judgment and decree passed
by it must be set aside.In the result, the appeals succeed and are hereby allowed.  The
judgment and decree dated July 24, 1992 passed by the High Court is set
aside and the matter is remanded for a fresh decision of Second Appeals
No.708 and 709 of 1990 expeditiously and in accordance with law.  The
appellants will be entitled to their costs.