1. The present Civil Revision Application under Section 115 of the Code of Civil Procedure has been preferred by the applicants-original defendants nos. 5 to 8 to quash and set aside the impugned judgment and order dated 11/03/2011 passed by the learned trial Court-learned Additional Senior Civil Judge, Anjar at Kutch below Exh. 29 in Special Civil Suit No. 22/2009 by which the learned trial Court has dismissed the said application, Exh. 29 submitted by the applicants-original defendants nos. 5 to 8, which was submitted to reject the plaint under Order 7 Rule 11 of the Code of Civil Procedure submitting that as the dispute whether the suit property in question is a trust property or not, is yet to be decided by the Charity Commissioner and as the dispute is with respect to the alleged trust property, the Civil Court would not have any jurisdiction, more particularly, there would be bar in entertaining the suit considering Sections 50 and 51 of the Bombay Public Trust Act as well as Sections 79 and 80 of the Bombay Public Trust Act.
2. It appears that respondent no. 1-original plaintiff had instituted Special Civil Suit No. 22/2009 against the applicants and others in the Court of learned Principal Civil Judge, Anjar at Kutch for declaration and permanent injunction with respect to the suit property contending interalia that the suit property is a trust/'dharmada' property and still the same is shown to be in the name of original defendant no. 4 as an owner and declaration is also sought that as the suit property bearing Survey No. 545 situated at Bhachau is a trust property still original defendant no. 4 has sold/transferred the said property in favour of the applicants-original defendants nos. 5 to 8 and therefore, the same be declared as illegal and void. Having been served with the summons of the aforesaid suit, the applicants-original defendants nos. 5 to 8 submitted an application, Exh. 29 to reject the plaint under Order 7 Rule 11 (d) of the Code of Civil Procedure by submitting that as the dispute is with respect to the alleged trust property and even the said dispute is pending before the learned Charity Commissioner in view of Sections 50 and 51 of the Bombay Public Trust Act and Sections 79 and 80 of the Bombay Public Trust Act the same is not maintainable and the learned trial Court dismissed the application by the impugned order.
3. Having heard Shri S.M Shah, learned advocate appearing on behalf of the applicants-original defendants nos. 5 to 8, Shri B.Y. Mankad, learned advocate appearing on behalf of respondent no. 1-original plaintiff, Shri Kabir Hathi, learned AGP appearing on behalf of respondents nos. 2 to 4 and Shri M.D. Vakil, learned advocate appearing on behalf of respondent no.
5 and considering the averments made in the plaint as they are, it appears that it is the case on behalf of respondent no. 1- original plaintiff that the dispute whether the suit land in question is a trust property or not is still pending before the learned Charity Commissioner. However, it is the case on behalf of respondent no. 1-original plaintiff that the suit land in question is a trust/'dharmada' property and the same is wrongly described as of the ownership of the original defendant no. 4 and consequently original defendant no. 4 has sold the said property to the applicants-original defendants nos. 5 to 8 and, therefore, the main dispute is whether the suit property is a trust property/'dharmada' property or not and admittedly the said dispute is pending before the Charity Commissioner. Considering the provisions of the Bombay Public Trust Act, it cannot be disputed that whether any property is a trust property or not is to be determined by the Charity Commissioner under the provisions of the Bombay Public Trust Act and that too after giving an opportunity to all the concerned. The Civil Court has no jurisdiction to decide whether a particular property is a trust property or not. The Charity Commissioner has to hold inquiry and thereafter has to take an appropriate decision whether the particular property is a trust property or not. Even otherwise, as the dispute is with respect to the alleged trust property/'dharmada' property the suit, without notice to the Charity Commissioner and without prior permission of the Charity Commissioner, is not maintainable. Under the circumstances, the Civil Court would not have jurisdiction to grant the relief as prayed for in the suit until and unless the dispute that the suit property is a trust property or not is decided by the Charity Commissioner. As stated hereinabove, the suit property, being Survey No. 545 is a trust property or not is pending before the Charity Commissioner.
4. Under the circumstances, the learned trial Court has materially erred in rejecting the application, Exh. 29 and not rejecting the plaint under Order 7 Rule 11(d) of the Code of Civil Procedure. In view of the above and for the reasons stated hereinabove, without expressing anything on merits whether the suit property bearing Survey No. 545 situated at Bhachau is a trust property or not and without further entering into the merits of the case and/or expressing anything on merits with respect to the suit property, the present Civil Revision Application is allowed and the impugned order passed by the learned Additional Senior Civil Judge, Anjar at Kutch below Exh. 29 in Special Civil Suit No. 22/2009 is hereby quashed and set aside and consequently application, Exh. 29 in Civil Suit No. 22/2009 is hereby allowed/granted and Special Civil Suit No. 22/2009 is hereby ordered to be rejected under Order 7 Rule 11 (d) of the Code of Civil Procedure. However, the same shall be without prejudice to the rights and contentions of the respective parties before the Charity Commissioner in the pending proceedings with respect to the suit property in question. Rule is made absolute the aforesaid extent. No costs.
(M.R. SHAH, J.) siji