1.0 Present Second Appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellants herein original defendants to quash and set aside impugned judgment and order passed by the learned Appellate Court learned Assistant Judge, Amreli dated 30.11.1988 passed in Regular Civil Appeal No.151 of 1983 preferred by the respondents hereinoriginal plaintiffs, by which, the learned Appellate Court has allowed the said appeal partly by holding that plaintiffs do recover the vacant and peaceful possession of the suit property from the defendants and quashing and setting aside judgment and decree passed by the learned trial Court dismissing the suit.
2.0 That the respondents hereinoriginal plaintiffs claiming be the trustees of one Gorisha Pir Durgadh and Kabrastan Public Trust instituted suit against the appellants herein original defendants for recovery of the possession of the suit property from the defendants contending that the suit property belongs to the trust and that the defendants are trespassers. It appears that suit was resisted by the appellants hereinoriginal defendants by filing written statement submitting that the suit is not maintainable because the sanction of the Charity Commissioner under Section 51 of Bombay Public Trust Act (hereinafter referred to as “the Act”) is not obtained; that the Charity Commissioner is a necessary party to the suit as per Section 51(3) of the Act and therefore, the suit is bad for non joinder of the necessary party. It was also contended on behalf of the defendants that they are the owners of the suit land; that they are deemed purchasers under the Bombay Tenancy Act; that they have become the owner by adverse possession; that the suit is barred under the provisions of Gujarat Devasthan Inami Land Abolition Act, 1969.
2.1. That the learned trial Court framed the necessary issues at Exh. 9 inclusive of issue whether the suit is barred under Section 50 of the Act; whether the suit is required to be dismissed on the ground of non joinder of proper party i.e. Charity Commissioner as required under 51(3) of the Act etc. The learned trial Court also framed the issue whether the suit is barred by law of limitation or not. That on appreciation of evidence the learned trial Court dismissed the suit by holding that the suit is barred under the provisions of the Act as before filing the suit prior consent of the Charity Commissioner has not been obtained and that the suit is barred by law of limitation. However, the learned trial Court held all other issues in favour of the plaintiffs.
2.2. Feeling aggrieved and dissatisfied with the judgment and decree passed by the learned trial Court learned Civil Judge (J.D.), Kodinar dated 9.9.1983 passed in Regular Civil Suit No.23 of 1980, the original plaintiffs preferred Regular Civil Appeal No. 151 of 1983 before the learned District Court, Amreli. Against the some of the findings which were against the original defendants, the defendants also preferred Regular Civil Appeal No.154 of 1983 before the learned District Court, Amreli. That by common judgment and order, the learned Appellate Court has partly allowed the Appeal No.151 of 1983 and has decreed the suit directing the plaintiffs do recover the vacant and peaceful possession of the suit property from the defendants and has dismissed the said appeal no.154 of 1983 preferred by the appellants original defendants.
2.3. Being aggrieved and dissatisfied with the common impugned judgment and order passed by the learned appellate Court dated 30.11.1988 passed in Appeal No.151 of 1983 in partly allowing the appeal and quashing and setting aside the judgment and decree passed by the learned trial Court and passing an order that the plaintiffs do recover the vacant and peaceful possession of the suit property from the defendants, appellants hereinoriginal defendants have preferred present Second Appeal under Section 100 of the Code of Civil Procedure. It is required to be noted that so far as judgment and order passed by the learned Appellate Court passed in Regular Civil Appeal No. 154 of 1983 in dismissing the same, the appellants herein original defendants have not preferred any appeal.
3.0 While admitting the present Second Appeal, the learned Single Judge has framed the following substantial questions of law for determination of the present Second Appeal.
1. Whether in the facts and circumstances of the case the Court below have erred in not holding that the civil Court has no jurisdiction to try the suit ?
2. Whether in the facts and circumstances of the case the Court below have erred in not holding that the suit is not maintainable in view of Section 51 of the Bombay Public Trust Act , as the respondents have not obtained any consent from the Charity Commissioner for instituting the suit in question ?
3. Whether in the facts and circumstances of the case the Court below have erred in not holding that the suit is bad in law for nonjoinder of proper party in view of Section 51(3) of the Bombay Public Trust Act under which the Charity Commissioner nor is a necessary party ?
4. Whether in the facts and circumstances of the case the Court below have erred in not holding that the suit is barred by the provisions of Limitation Act inasmuch as the suit is time barred under Articles 100 and 113 of the Limitation Act ?
3.1. Under the circumstances, this Court is required to consider the aforesaid substantial questions of law in the present Second Appeal.
4.0 Shri D.M. Thakker, learned advocate for the appellants original defendants has vehemently submitted that learned Appellate Court has materially erred in holding that the suit filed by the plaintiffs without prior consent of the Charity Commissioner as required under Section 51 of the Act was maintainable. It is further submitted that even the learned Appellate Court has materially erred in holding that though the Charity Commissioner was not joined as party to the suit, still the suit would be maintainable and suit is not required to be dismissed on the ground of non joinder of proper party. In support of his above submission, he has relied upon Section 51(3) of the Act.
4.1. Shri D.M. Thakkar, learned advocate for the appellants original defendants has submitted that even the learned Appellate Court has materially erred in holding that the suit was within the period of limitation and / or suit was not barred by law of limitation.
4.2. It is further submitted by Shri D.M. Thakkar, learned advocate for the appellantsoriginal defendants that in a dispute with respect to trust property, before filing any suit by the trust or trustee, prior permission of Charity Commissioner is required to be obtained before initiating any proceedings with respect to trust property, as required under Section 51 of the Act. In support of his above submission, he has relied upon the decision of the learned Single in the case of Patel Nanji Devaji & Others vs. Patel Jivraj Manji & Others reported in 1988(2) GLR 830.
4.3. It is further submitted that even if it is held that in the facts and circumstances of the case before filing the suit for recovery of possession from the defendants such permission was not required, in that case also, even considering Section 51(3) of the Act, the Charity Commissioner was required to be joined as defendant. Therefore, it is submitted that as the Charity Commissioner was not joined as defendant the suit was required to be dismissed on the ground of non joinder or proper party. By making above submissions and relying upon the above decision, it is requested to allow the present Second Appeal .
5.0 Appeal is opposed by Shri J.M. Patel, learned advocate for the respondent nos. 1 and 5 and Ms. Contractor, learned advocate for Shri P.R. Nanavati, learned advocate for the respondent nos. 2 and 4. Shri Patel, learned advocate for original plaintiffs has submitted that as the suit filed by the plaintiffs was to recover the possession from the defendants as trespassers, before instituting such a suit, permission of the Charity Commissioner as provided under Section 50 of the Act was not required. In support of his above submission, he has relied upon the decision of the learned Single Judge in the case of Nadiad Nagarpalika vs. Vithalbhai Zaverbhai Patel and other reported in 1980 GLR 792. Therefore, it is submitted that as such issue whether before filing the suit and claiming the reliefs in the suit the permission of the Charity Commissioner was required or not that issue is now not resintegra. It is further submitted that as the relief sought was against the defendants to recover the possession alleging that they were trespassers and to protect the property of the trust and when the prior permission of the Charity Commissioner was not required before filing such suit, the Charity Commissioner was not required to be joined as party as contended on behalf of the appellants and as provided under subsection (3) of Section 51 of the Act. Therefore, it is submitted that the learned Appellate Court has rightly held that the suit is not required to be dismissed on the ground of non joinder of the proper party, more particularly, non joinder of the Charity Commissioner. On the question of limitation, it is submitted by Shri Patel, learned advocate for the original plaintiffs that in the facts and circumstances of the case when the suit was filed for recovery of possession against trespassers the suit was required to be filed within a period of 12 years considering Article 65 of the Limitation Act and therefore, the learned Appellate Court has not committed any error and / or illegality in holding that the suit is within the period of limitation. By making above submissions, it is requested to dismiss the present Second Appeal.
6.0 Ms. Contractor, learned advocate for some of the respondents has heavily relied upon the decision of the learned Single Judge in the case of Trustees of Hareshwar Mahadev Trust vs. Trustees of Shri Jasvantsinhji Audichya Brahman Boarding Vidyarthibhavan & ors reported in 1998(1) GLH 127 by submitting that as the suit filed by the trustees on behalf of trust was to recover the possession from the defendants as they are trespassers, the prior permission of the Charity Commissioner as provided under Section 50 of the Act was not required. By making above submission, it is requested to dismiss the present Second Appeal.
7.0 Heard the learned advocates for the respective parties at length. As stated hereinabove and considering the substantial questions of law framed by the learned Single Judge while admitting the present Second Appeal, this Court is required to consider the following substantial questions of law i.e. (1) Whether in absence of any permission from the Charity Commissioner to file the suit as provided under Section 50 of the Act, whether the suit filed by the plaintiffs is maintainable ? (2). Whether in absence of the Charity Commissioner joined as party to the suit as defendants as provided under Section 51(3) of the Act, whether the Appellate Court was justified in holding that the suit is not required to be dismissed on the ground of non joinder of Charity Commissioner ?
(3) Whether in the facts and circumstances of the case, the learned Appellate Court has rightly held that the suit is not barred by law of limitation ?
8.0 Now so far as, first substantial question of law with respect to permission of the Charity Commissioner before instituting the suit as provided under Section 50 of the Act is concerned, it is required to be noted that as such the suit was filed by the original plaintiffs as trustees of the trust to protect the property of the trust and to recover the possession from the defendants on the ground that they are trespassers. Therefore, considering relief sought in the plaint as it was to protect the property of the trust, before instituting any suit against third party and to recover possession of the suit property this Court is of the opinion that the prior consent of the Charity Commissioner as provided under Section 50 of the Act, suit was not required. This view is supported by the decision of learned Single Judge in the case of Vithalbhai Zaverbhai Patel (supra) as well as in the case of Hareshwar Mahadev Trust (supra). In the case of Vithalbhai Zaverbhai Patel (supra), it is specifically held by the learned Single Judge that when the suit is filed by the trustee against the trespassers who have encroached upon the trust property, Section 50 of the Act under which consent of the Charity Commissioner is necessary is not attracted. In para 4 and 5, the learned Single Judge has held as under:
4. I frankly says that Mr. Shah has put forward his submissions in a very ingenious manner. However, on the close scrutiny of the provisions of Section 50 of the Act, in the light of the general property law, his submissions cannot be accepted. The first and fore most reason for the same is that Section 50 is an enabling provision. Ordinarily, trustees as legal owners alone are able to file suits for the recovery of possession of trust properties. As for example, a trespasser, if sued by a third, party, would be able to successfully resist the suit by banking on his de facto possession of the property. To put it in legal parlance, possession is a good point, except against the true owner. That is the established dictum of law. Ordinarily, the Charity Commissioner or the persons claiming to be interested as beneficiaries, but having no legal title in them, would fail in their suits, if they file the same for the recovery of possession of the trust property, even if they allege that the defendant is in adverse possession and the interest of such beneficiaries are likely to be jeopardised in the ultimate analysis. Such a suit, according to general property law and general procedural law, is bound to fail. In the general interest of public trust properties, which are close to the heart of the Legislature, a special provision has, therefore, been made in Section 50 of the Act clothing the Charity Commissioner or the beneficiaries of the public trust to institute suits for various reliefs set out in clauses (a) to (h) of Section 50 of the Act. But for this enabling provision, the Charity Commissioner or the beneficiaries would not be in a position to institute such suits. The Charity Commissioner, however, is given power to file such suits on his own. The beneficiaries at times might be tempted to raise the disputes under the alleged guise of their interest in the trust properties and may at times work counter to the powers of the trustees. That is why, a condition has been imposed on their right to file such suits and the condition is that they must procure the permission of the Charity Commissioner before they embark on such litigation under the assumed colour of safeguarding the interests of the public trust. The substantial portion of Section 50, therefore, is to be confined to the power of Charity Commissioner and the power of the beneficiaries of the trust to institute those suits enumerated in clauses (a) to (h) of Section 50 of the Act, where the background is one depicted in clauses (i) or (ii) or (iii) of the initial part of Section 50.
5. Mr. Shah's submission, however, is that the proviso disables all persons to file suits claiming any of the reliefs specified in that section. In his submission, this provision, which is mandatory in character, takes away the right of all other persons. It is difficult to subscribe to this view canvassed by Mr. Shah. All that the proviso forbids is that those who are given powers in the earlier part of Section 50 are to exercise those powers only in compliance with the provisions of that Act and not otherwise. S9 the proviso is a sort of a restriction placed on the powers of the Charity Commissioner, and on the powers of the beneficiaries of the trust, who are designated by Section 50 as "persons having an interest in the trust". The proviso is not to be enlarged in its connotation to cover even trustees. The abovementioned view that I have taken also can be deduced from one clear indicia in the section itself. The section provides for two or more persons who can institute such suits after obtaining the permission of the Charity Commissioner. Suppose, there is a sole trustee of a public trust. If what Mr. Shah has canvassed is to be accepted as an absolute proposition of law, namely, Section 50 of the Act, such a sole trustee will not be able to file the suit of the nature of clause (a) of Section 50 of the Act. The idea, therefore, paramount in the mind of the Legislature is to clothe the Charity Commissioner or minimum two or more persons having interest in the trust to institute suits of the nature even de hors the trustees. Such a situation ordinarily would arise when the trustees are remiss or slack in their duties. Section 50, therefore, could not have been intended to impose an embargo on the general powers of the trustees to file suits for the recovery of the possession of the trust property either from tenants or licensees or from trespassers.
9.0 While dealing with Section 50 of the Act right of person interested in the trust property to protect the property and to file a suit, learned Single Judge in the case of Hareshwar Mahadev Trust (supra) has specifically observed and held that though while Section 50 authorises Charity Commissioner or two more person having interest in the trust by obtaining consent in writing of the Charity Commissioner may institute a suit which does not affect the right of trustee in whom legal ownership of property of trust vest to file a suit for recovery of trust property or protect the property in exercise of their own right without obtaining the permission of the Charity Commissioner, as for exercising of ownership vested, no permission is required. Therefore, substantial question of law no.1 is answered accordingly by observing and holding that no illegality has been committed by the learned Appellate Court in holding that for filing the suit against the defendants for recovery of the possession etc. permission of the Charity Commissioner as provided under Section 50 of the Act is not required.
10. Now, so far as substantial question of law no.2 framed by the learned Judge that whether the Courts below erred in holding that the suit is not bad for non joinder of proper party i.e.
Charity Commissioner as required under Section 51(3) of the Act is concerned, once it is held that for filing the suit against the defendants for recovery of possession and to protect the trust property, before filing the suit or initiating the proceedings prior permission of the Charity Commissioner is not required, the suit is not required to be dismissed on the ground of non joinder of the Charity Commissioner in the suit as provided under Section 51(3) of the Act. It is required to be noted that the relief sought in the suit to recover the possession from the defendants trespassers cannot be said to be a relief adverse to the Charity Commissioner and therefore, on the ground of non joinder of the Charity Commissioner, the suit is not required to be dismissed. Under the circumstance, no illegality has been committed by the learned Appellate Court in holding that the suit is not required to be dismissed on the ground of non joinder of the Charity Commissioner.
11. Now, so far as question with respect to limitation is concerned, as the suit was filed by the plaintiffs to recover the possession from the defendants on the ground that they are trespassers and therefore, period of limitation to file the suit would be 12 years considering Article 65 of the Limitation Act and not three years as contended on behalf of the appellant. Under the circumstance, no illegality has been committed by the learned Appellate Court in holding that the suit is within the period of limitation.
12. Even the substantial question of law framed by the learned Single Judge that whether the Civil Court had jurisdiction to grant relief which is sought in the suit is concerned, the same is also answered by the decision of the learned Single Judge Hareshwar Mahadev Trust (supra). Even in Section 50 itself it has been provided that any person interested in the trust property can initiate the proceedings for recovery of the possession against third party. Under the circumstance, no illegality has been committed in holding that the Civil Court would have jurisdiction.
12. In view of the above and for the reasons stated above, present Second Appeal fails and deserve to be dismissed and is accordingly dismissed. No costs.
kaushik sd/ ( M. R. Shah, J. )