1) By this application under section 115 of the Code of Civil Procedure, 1908 (hereinafter referred to as “the Code”), the revisionist has challenged the order dated 21.11.2011 passed by the learned Principal Civil Judge, Umreth below Exhibit 183 in Regular Civil Suit No.106 of 1992 and prays that the said suit filed by the opponents No.1 to 7 herein be dismissed as being not maintainable in the facts and circumstances of the present case.
2) The revisionist happens to be defendant No.13 in the above referred civil suit, which has been instituted by the opponents No.1 to 7 herein in respect of property which has been registered as public trust property in the year 1985 viz. No.A/1220/Anand (old No.A/2418/Kheda). It is the case of the revisionist in the written statement (Exhibit 102) filed by him, that since the suit property is registered as a public trust property with the Charity Commissioner, the suit instituted by the opponents No.1 to 7 is not maintainable at law. The revisionist, therefore, requested the trial court to frame additional issue in this regard and submitted an application (Exhibit-115) under rule 2 of Order XIV, read with rule 11 of Order VII of the Code, requesting the trial court to frame an additional issue in the said suit. The said application came to be rejected by the trial court vide its order dated 24.9.2010. Being aggrieved, the revisionist came in revision before this court by way of Civil Revision Application No.260 of 2010. Vide judgment and order dated 20.1.2011, the said revision came to be disposed of in the following terms;
“Heard learned advocate Mr.M.B.Gandhi for petitioner.
In this Civil Revision Application, the petitioner has challenged order passed by Additional Civil Judge, Umreth in Civil Suit No.106 of 1992, below Exh.115, dated 24.9.2010. The Additional Civil Judge, Umreth has rejected said application made by petitioner under Order 14 Rule 2 of Civil Procedure Code.
However, today learned advocate Mr. Gandhi submitted that matter being an old matter of 1992 and therefore, some suitable directions may be issued to trial Court so that trial Court may frame all the issues including preliminary issue raised by petitioner and also decide entire civil suit within some reasonable time.
I have considered submissions made by learned advocate Mr. Gandhi and also perused the order passed by trial Court below Exh.115 in Civil Suit No.106 of 1992. Considering submissions made by learned advocate Mr. Gandhi and the matter is of 1992 and question of jurisdiction has been raised by way of application made by petitioner under Order 14 Rule 2 of Civil Procedure Code, let the trial Court may frame all the issues including preliminary issue raised by petitioner and decide Civil Suit No.106 of 1992 on merits finally considering all the issues, as early as possible preferably within a period of six months from date of receiving copy of present order, after giving reasonable opportunity of hearing to all respective parties.
In view of above observations and directions, present Civil Revision Application is disposed of this Court without expressing any opinion on merits.”
3) Pursuant to the aforesaid order passed by this court, the trial court, vide order dated 4.4.2011 framed additional issues being issues No.4A and 4B. Thereafter, the applicant made the present application vide Exhibit 183, requesting the trial court to decide the newly added issues as preliminary issues under rule 2(2)(a) of Order XIV of the Code. By the impugned order dated 21.11.2011, the trial court has rejected the said application which has given rise to the present revision under section 115 of the Code.
4) Mr. P. J. Kanabar, learned advocate for the revisionist assailed the impugned order submitting that the trial court has grossly erred in rejecting the application-Exhibit 183. It was contended that the provisions of the Code, viz., rule 2(2) (a) of Order XIV of the Code read with sections 2(4), 19, 21, 22A, 26, 79 and 80 of the Bombay Public Trusts Act, 1950 (hereinafter referred to as “the Act”) in no uncertain terms, bar the jurisdiction of the civil court to deal with the issues which are required to be determined under the said Act. It was submitted that the jurisdiction to decide such issues is vested in the Charity Commissioner under the provisions of the said Act and, hence, the suit instituted by the respondents No.1 to 7 for determining their right, title and interest in the trust property cannot be tried by the civil court. It was, accordingly, urged that the trial court ought to have held in favour of the revisionist and that the reasoning adopted by the trial court was misconceived, inasmuch as, the trial court has failed to understand the purport of the order dated 20.1.2011 passed by this court in proper perspective.
5) It was argued that the trial court ought to have appreciated that the contention about jurisdiction of the civil court goes to the root of the matter. Attention was invited to the impugned order to submit that the trial court has observed that the earlier application-Exhibit 115 was similar to the application-Exhibit 183. It was contended that unless the issues as prayed for in the application-Exhibit 115 were framed, the request to decide the issue with regard to civil court's jurisdiction could not have been made. It was contended that the production of evidence by the opponents concerned would not make the provisions of rule 2 of Order XIV of the Code inapplicable and, as such, the impugned order having been passed on erroneous grounds deserves to be quashed and set aside. In support of his submissions, the learned advocate placed reliance upon the decision of this court in the case of Sevantilal Jaskaranbhai Ajbani & Anr. v. Shree Rupvijayji Maharaj Dellano Upashraya Trust & Anr., (2009) 20 G.H.J (431), for contending that the suit of the present nature is barred by section 80 of the Act. Reliance was also placed upon the decision of this court in the case of Swami Satyaprakashdasji Gurughanshyam Prasad Swami & Anr. v. Joint Charity Commissioner, Rajkot & Anr., 2000 (2) G.L.H. 327, for the proposition that the Bombay Public Trusts Act is a complete Code and jurisdiction of civil court is barred under section 80 of the said Act. The decision of this court in the case of Ambalal Okarlal Patel & Ors. v. Filoman Pathubhai Patel & Ors., 2003(3) GLH 306, was cited for the proposition that under the mandatory provisions of section 79 of the Act, the question whether a particular property is a trust property is required to be decided by the Charity Commissioner or his assistants. It was submitted that section 80 of the Act provides that no civil court shall have jurisdiction to decide or deal with any question which is by or under the said Act to be decided or dealt with by any officer or authority under the Act, or in respect of which the decision or order of such officer or authority has been made final and conclusive. Thus, section 80 would clearly preclude the civil court from deciding that question. It was contended that on a conjoint reading of sections 79 and 80 of the Act, it is apparent that if a particular question is to be decided under section 79 of the Act either by the Charity Commissioner or his assistant or by the courts in appeal, the jurisdiction of a civil court to decide that question is expressly ousted by section 80 of the Act. Referring to the copy of the extract of the Public Trust Register annexed along with the application, it was pointed out that the suit property has been shown as the property of the trust and, as such, any dispute in respect of the said property can only be decided by the Charity Commissioner or his assistant under the provisions of the Act and the jurisdiction of the civil court is expressly barred.
6) On the other hand, Mr. N. M. Shah, learned advocate for the opponents No.1 to 7 opposed the application submitting that on an earlier occasion the revisionist had filed an application for framing of preliminary issues and deciding the same, which came to be rejected by an order dated 24.9.2010. The said order came to be challenged before this court. However, this court has not interfered with the said order and on request made by the learned advocate for the revisionist, issued directions to the trial court to frame all issues including preliminary issue raised by the petitioner and decide Regular Civil Suit No.106 of 1992 on merits finally, considering all the issues, as early as possible, preferably within a period of six months from the date of receiving a copy of the said order after giving reasonable opportunity of hearing to all the respective parties. It was submitted that at the stage when the present application was made, the trial court had already recorded the evidence of the plaintiff and the trial was at the stage of recording the evidence of the defendants. It was submitted that the earlier application made by the revisionist under rule 2(2)(a) of Order XIV of the Code having been rejected by the trial court, the trial court was justified in holding that the present application for deciding the preliminary issue first, cannot be accepted. It was, accordingly, submitted that the impugned order being just, legal and proper, does not warrant interference by this court.
7) A perusal of the extract of the Public Trust Register maintained under section 17 of the Act read with Rule 5 of the Bombay Public Trusts (Gujarat) Rules, 1961 annexed with the application shows that the opponent No.1 is a trustee of the Trust in question. In the said report, the suit property is shown to be part of the immovable properties belonging to the Trust. Section 80 of the Bombay Public Trusts Act bars the jurisdiction of the civil court to decide or deal with any question which is, by or under the Act to be decided or dealt with any officer or authority under the said Act, or in respect of which, the decision or order of such officer or authority has been final or conclusive. This court in the case of Swami Satyaprakashdasji Gurughanshyam Prasad Swami v. Joint Charity Commissioner, Rajkot (supra) has, on analysis of the provisions of the Bombay Public Trusts Act, observed that the Bombay Public Trusts Act is a complete Code and that the jurisdiction of the civil court is barred under section 80 of the Act in respect of any question which is, by or under the said Act, to be decided or dealt with by any officer or authority under the said Act. A similar view has been taken by this court in the case of Sevantilal Jaskaranbhai Ajbani v. Shree Rupvijayji Maharaj Dellano Upashraya Trust (supra) wherein, the court, after considering various decisions on the issue, had rejected the plaint under rule 11 of Order VII of the Code on the ground that considering the nature of the controversy involved in the suit, the suit was barred by the provisions of section 80 of the Bombay Public Trusts Act. In Ambalal Okarlal Patel (supra), this court has held that under the mandatory provisions of section 79 of the Act, the question whether a particular property is a trust property is required to be decided by the Charity Commissioner or his assistants. Section 80 of the Act clearly precludes the civil court from deciding any question which is under this Act, to be decided or dealt with by any officer or authority under this Act, or in respect of which the decision or order of such officer or authority has been made final and conclusive. It has been held that a special machinery is provided for determining the questions provided under section 19 read with section 79 of the Act and that on a conjoint reading of sections 79 and 80 of the Act, if a particular question is under section 79 to be decided by the Charity Commissioner or his Assistant or by the courts in appeal, the jurisdiction of a civil court to decide that question is expressly ousted by section 80.
8) In Vileshkumar Shantilal Acharya v. Dhansukhlal J. Gajjar & Ors., 1985 (GLH) 889, this court has held that under section 19 of the Bombay Public Trusts Act 1950, the authority under the Act has to make an inquiry whether a particular property belongs to a public trust or not. Section 21(2) of the Act gives finality and conclusiveness to the entries made on the basis of the findings recorded by the said authority in an inquiry under section 19 of the Act. It is only subject to the provisions of the Act and subject to any change recorded under the provisions following it. Section 79 of the Act in terms states that such a question, whether a particular property belongs to a public trust or not, has got to be decided by the said authority and the decision of the said authority is given finality and conclusiveness subject to such decision being set aside on the application to the Court or to the High Court in appeal. It cannot, therefore, be gainsaid that the question whether a property belongs to a public trust or not has to be decided by or under the Act by the officer or authority under the Act. Such decision has been given finality and conclusiveness and it is only subject to be varied or set aside as contemplated by or under the Act and in no other manner.
9) The facts of the case are required to be examined in the light of the aforesaid legal position.
10) As noted hereinabove, the property in question is shown to be property of the Trust in the public trust register maintained under the provisions of the Act. As held by this court in the above referred decision, entries made under section 21 of the Act are subject to the provisions of the Act and subject to any change recorded under the provisions following it, be final and conclusive. Under the provisions of the Act, entries made under section 21 would be subject matter of challenge under the provisions of the Act. Thus, in view of the fact that the suit property is shown to be public trust property in the Public Trusts Register, the question as regards the jurisdiction of the civil court to adjudicate upon the controversy raised before it is a debatable one.
11) As can be seen from the earlier order dated 24.9.2010 passed by the trial court on the application Exhibit 115 made by the revisionist under rule 2 of Order XIV of the Code, the court has treated the application to be in the nature of an application under rule 11 of Order VII and has rejected the prayer made by the revisionist for framing a preliminary issue and deciding the same. The revisionist challenged the said order before this court in Civil Revision Application No.260 of 2010. True it is that the court did not decide the matter on merits. However, a perusal of the judgment and order dated 20.1.2011 indicates that the court has directed the trial court to frame all the issues including preliminary issue raised by the petitioner and decide Civil Suit No.106 of 1992 on merits finally considering all the issues, as early as possible. Subsequently, pursuant to the aforesaid direction issued by this court, the trial court has framed two preliminary issues viz., issues No.4A and No.4B. Insofar as issue No.4A is concerned, the same appears to involve a question of fact, and as such, cannot be decided as a preliminary issue as the same would require recording of evidence. However, insofar as issue No.4B, namely, whether the suit is legally maintainable, the same involves a pure question of law, and as such, can be decided on the basis of the facts on record without recording of evidence.
12) The revisionist vide the application-Exhibit 183, has requested the court to hear and decide the preliminary issue on the ground that as the suit property belongs to the trust, the suit is not maintainable in view of the provisions of section 22 of the Act. The trial court by the impugned order dated 21.11.2011 has observed that the revisionist had earlier moved an application vide Exhibit 115 for framing of preliminary issue, which came to be rejected on 24.9.2010. The said order had been challenged by the revisionist before the High Court, wherein it had been requested that without entering into the merits of the case, it be directed that all the issues be decided on merits, pursuant to which, the High Court had directed that the preliminary issue be added as one of the original issues and preliminary issue as well as all the other issues be decided within the stipulated time limit. The trial court has further observed that a similar application had been made before the court and that in the context of the revision application made before the High Court against the said order, the court had directed to decide the question of jurisdiction along with all other issues. In the circumstances, the application made by the revisionist cannot be accepted. The trial court has further observed that the trial is at the stage where the plaintiff's evidence has already been recorded and the plaintiff has submitted a purshis to the effect that he does not want to lead any further evidence hence, at this stage, where the evidence of plaintiff has already been over and evidence of the defendants is yet to be recorded, the question of deciding a preliminary issue as to whether or not, the court has jurisdiction to adjudicate the dispute and postpone the trial till such issue is decided, does not arise. The trial court has, accordingly, rejected the application Exhibit 183 and directed that the trial proceeding should be continued.
13) A perusal of the order dated 20.1.2011 passed by this court indicates that the court has ordered that let the trial court frame all the issues including preliminary issue raised by the petitioner and decide Civil Suit No.106 of 1992 on merits finally considering all the issues. On a plain reading of the said order, it appears that the court has directed the trial court to frame all the issues including preliminary issue. A preliminary issue by its very nature is an issue which has to be decided separately as a preliminary issue. The order passed by this court cannot be interpreted to mean that the question of jurisdiction, which is a preliminary issue, is required to be decided along with all the other issues. In case, the trial court after considering the preliminary issue comes to the conclusion that the civil court has no jurisdiction to adjudicate the controversy in the issue, there would be no purpose in proceeding further with the trial and recording the evidence of the defendants.
14) It may also be noted that the suit came to be instituted in the year 1992. The issues came to be framed on 17th March, 1997. Thereafter, before the evidence came to be recorded, the revisionist had moved an application under rule 2 of Order XIV of the Code for framing a preliminary issue as regards jurisdiction and deciding the same. The said application came to be rejected vide order dated 24.9.2010. Thus, in case, any evidence has been recorded in the intervening period, no fault can be found on the part of the revisionist inasmuch as the revisionist had moved the application prior to the stage when the evidence came to be recorded. Subsequently, the preliminary issues have been framed on 4.4.2011. Within a short time of framing of the preliminary issues, the revisionist, by the application Exhibit 183 dated 9.5.2011, has prayed for deciding the preliminary issue and dismissing the suit on the ground of maintainability.
15) In the facts of the present case, insofar as the preliminary issue framed as issue No.4B is concerned, the same is purely a question of law, which can be decided on the basis of the pleadings of the parties and the documentary evidence which has come on record, namely, the public trust register. For deciding the said issue, no evidence would be required to be recorded. Under the circumstances, merely because the evidence of the plaintiff is over, there is no bar against the trial court deciding the said issue as a preliminary issue. This court is, therefore, of the opinion that in the light of the fact that any suit in respect of a trust property is barred under the provisions of section 80 of the Bombay Public Trusts Act, the trial court was not justified in not deciding the said issue as a preliminary issue, and as such, the impugned order dated 21.11.2011 cannot be sustained.
16) For the foregoing reasons, the application succeeds and is accordingly allowed. The impugned order dated 21.11.2011 passed by the trial court is hereby quashed and set aside. The application Exhibit-
183 is hereby allowed to the following extent. The trial court shall decide issue No.4B as a preliminary issue within a period of two months from the date of receipt of a copy of this order. In case, the trial court holds that it has jurisdiction to decide the suit, the trial court shall, thereafter, conclude the suit within a period of four months from the date of the said decision. Rule is made absolute accordingly with no order as to costs.
(HARSHA DEVANI,J.)
Vahid