Sunday, 29 September 2019

Whether provisions of limitation Act is applicable to suit filed as per S 50 of Bombay public trust Act?

Learned counsel for the appellants submits that as per pleadings of plaintiffs, especially para 12, the cause of action to file this suit arose when plaintiffs filed Inquiry No. 151 of 1997 and after the death of Shri Laxminarayan Ramvilas Agrawal. Thus, the suit for declaration of title as well as for possession, filed on 29.10.2004 is barred by limitation. He submits that limitation for filing such suit for declaration is 3 years from the date of cause of action under Article 58 of the Limitation Act, and for possession, the limitation is 12 years under Article 65 of the Limitation Act. As such, suit is not within limitation. Learned counsel for the appellants placed reliance on "Keshav Narayan Bharti through L.Rs. And others vs. State of Maharashtra and others" [MANU/MH/1368/2006 : 2006 (3) BCJ. 550].

Learned counsel for respondent nos. 1 and 2 submits that this suit is filed under Section 50 of the Maharashtra Public Trust Act after obtaining required permission from the Charity Commissioner under Section 51 of the Trust Act. This being special forum under Local Act, the general provisions of the Limitation Act, 1963 are not applicable. He has drawn my attention to the judgment in the case of "Shri Dev Chavata of Tambulwadi vs. Ganesh Mahadeo Deshpande" [MANU/MH/0070/1970 : 1970 Mh.L.J. 736].

In the case at hand, admittedly plaintiff trust filed suit under Section 50 of the Trust Act after obtaining necessary permission from the Charity Commissioner under Section 51 of the Act. Thus, obviously, this is special forum under Local Act i.e. Maharashtra Public Trust Act.

This Court, in the same matter reported in "Seth Kasturmal Dalsukh Dharmashala Dhule and others vs. Shantidevi w/o Laxminarayan Agrawal and others" [MANU/MH/1616/2012 : 2013 (1) Mh.L.J. 695] held that the suit is not the one invoking general civil jurisdiction of the Court within the meaning of Section 9 of the Civil Procedure Code, but is filed before the District Court i.e. Court as contemplated under Section 2(4) r/w Section 50 of the Bombay Public Trust Act. This Court also held that under Section 50 (iv) of the B.P.T. Act a suit can be filed in the Court even for relief of declaration and injunction in favour or against a public trust. Section 50 also explicitly provides that a suit for possession can be filed in the Court. Sub-Clause (q) of Section 50 (iv) further empowers the Court to grant any other relief which would be a condition precedent or consequential to any of the relief provided in Section 50. For claiming relief of possession, a decision on question of ownership would be relevant. Unless the plaintiff proves his ownership or any other status as regards the property of which possession is sought, he would not be entitled for relief of possession. As such, relief of declaration as to the status of plaintiff qua the property would be condition precedent for grant of relief of possession.

This Court also held that the B.P.T. Act is special Local Act. Suit under Section 50 is a special remedy before special forum under the Act. The bar, as envisaged under Sections 79 and 80 of the B.P.T. Act, would not be attracted in view of the provisions of Sections 50 and 51 of the Trust Act.

So also, in Shri Dev Chavata of Tambulwadi vs. Ganesh Mahadeo Deshpande (supra), this Court observed that:

"5. In my judgment, there is nothing in the Bombay Public Trusts Act, 1950, which is a special local Act, which makes the provisions of the Indian Limitation Act, 1908, or of the Limitation Act of 1963 applicable to a suit under Section 50 of the Bombay Public Trusts Act The suit under Section 50 is a Special remedy before a special forum under the Act. The present suit haying been filed on July 21, 1955, the question which will have to be considered is as to whether the Indian Limitation Act, 1908, will apply to it Section 75 of the Bombay Public Trusts Act applies certain provisions of the Indian limitation Act only to the filing of appeals and applications. The Indian Limitation Act, which is the general law of the land relating to limitation, is applicable in the circumstances mentioned in Section 29 of that Act in the case of suits and proceedings under Special or Local Law. Now, Section 29(2) comes into operation when a Special or Local Law prescribes for any suit a period of limitation. See Vidyacharan Shukla v. Khubchand Baghel. And Shankar v. Chunilal. However, there is nothing in Section 50 or in any other provision of the Bombay Public Trusts Act. 1950, which prescribes any period of limitation for a suit under Section 50. The suit is to be instituted outside Greater Bombay before a special forum, viz., the District Court, as provided in the section read with Section 3(4). I am, therefore, of the opinion that the Limitation Act is not at all attracted to any suit under Section 50 of the Bombay Public Trusts Act. Section 52-A lays down that suit against even an assignee for valuable consideration is not barred by any length of time and hence It is clear that legislature could not have intended to apply the law of limitation to suits under Section 50. The learned District Judge was, therefore, wrong in applying presume ably Art 142 and in dismissing the suit."

Thus, this suit being filed under Section 50 of the Trust Act, which is special forum, the provisions of Limitation Act, 1963 are not applicable to this suit as under Section 50 of the Trust Act, no limitation is provided for filing such suit for declaration regarding trust property and for possession of the trust property. Therefore, I hold that the suit claim is well within limitation. The Trial Court has rightly held that the suit is not barred by limitation.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

First Appeal No. 2577 of 2013 and Civil Application No. 13119 of 2013

Decided On: 03.12.2018

 Shantidevi  Vs.  Seth Kasturmal Dalsukh Dharmashala and Ors.


Hon'ble Judges/Coram:
Sunil K. Kotwal, J.

Citation: AIR 2019(NOC)127 Bom

Read full judgment here: Click here
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