Sunday, 29 September 2019

Whether suit filed by disciple with authorization of all trustee without permission of charity commissioner for enforcing civil right is maintainable?

i. Whether the suit filed by a disciple on behalf of the Trust in the court of Civil Judge, Jr. Division, for enforcement of civil rights of the trust is maintainable?

Ans. In the affirmative, as it is filed by trustee with authorization from all trustees.

 I find that this is a suit by the trust to prosecute its civil rights and in such matters, ordinarily the Civil Court will have jurisdiction and no permission of the Charity Commissioner is necessary if the suit is filed by the trustees.

5. The pleadings and findings on record disclose that though the plaint shows that it was filed by a disciple, in fact, the suit was filed by one of the trustees with authorization from all the trustees. Since the suit is filed by the trust, all the trustees are not necessary parties. All the trustees will be necessary only in a suit against the trust.

IN THE HIGH COURT OF BOMBAY (AURANGABAD BENCH)

Second Appeal No. 532 of 1991

Decided On: 19.12.2018

 Daiwan  Vs.  Bankat Swami Trust and Ors.

Hon'ble Judges/Coram:
A.M. Dhavale, J.

Citation: 2019(3) MHLJ 686


1. This is an appeal by the original defendants in R.C.S. No. 40 of 1984 in the Court at Beed. The suit of the trust for possession of agricultural land on the basis of title was dismissed by the trial court. In the first appeal R.C.A. No. 233 of 1986, the 3rd Additional District Judge, Beed reversed the judgment, allowed the appeal and decreed the suit. Hence this appeal.

2. Heard learned Advocates for the parties. The following substantial questions of law were framed:

i. Whether the suit filed by a disciple on behalf of the Trust in the court of Civil Judge, Jr. Division, for enforcement of civil rights of the trust is maintainable?

Ans. In the affirmative, as it is filed by trustee with authorization from all trustees.

ii. Whether the first appellate Court erred in reversing the finding of learned trial Judge on the point of claim of defendants for adverse possession?

Ans. In the negative.

iii. Whether the permission of Charity Commissioner was necessary to be obtained by a person other than the trustee for filing a suit?

Ans. In the negative.

iv. Whether it was necessary to frame issue as to whether the defendant was agriculture tenant/protected tenant/deemed purchaser and refer the same to the competent authority under the Hyderabad Tenancy and Agricultural Lands Act?

Ans. In the affirmative. It was necessary to frame the issue.

3. The trial court had dismissed the suit holding that the plaintiff failed to prove his ownership. Whereas, the appellate court held that the ownership was proved.

4. I find that this is a suit by the trust to prosecute its civil rights and in such matters, ordinarily the Civil Court will have jurisdiction and no permission of the Charity Commissioner is necessary if the suit is filed by the trustees.

5. The pleadings and findings on record disclose that though the plaint shows that it was filed by a disciple, in fact, the suit was filed by one of the trustees with authorization from all the trustees. Since the suit is filed by the trust, all the trustees are not necessary parties. All the trustees will be necessary only in a suit against the trust.

6. The facts also indicate that the defendants were claiming tenancy through Bhagwatbuwa who was one of the Mahants of the trust. A tenant cannot challenge the ownership of the landlord. The ownership dispute between the trust and the nephew of the founder of the trust Bankat Swami has been heard and the ownership of the trust has been confirmed up to the High Court. The defendants being tenants, they cannot challenge the ownership.

7. However, both the courts below erred in not considering the defence raised by the defendants in proper perspective. The defendants have stated as follows:

That the suit land was taken on lease by the defendant from Bhagwatbuwa since the year 1953-1954. That the suit land was attached by Tahsil in the year 1962 and was auctioned for two years and defendant was only the person who took the Lawani. After two years the Tahsil Beed handed over the possession of the suit land to the defendant and since then the defendant is in continuous possession as an owner. That the defendant was in possession of the suit land as a tenant since 1953-1954 and since 1964-1965 he is in possession of the suit land as an owner. There are several Revenue entries in his name in the revenue record since 1953-1965 as a person in cultivation.

8. I find no pleadings and evidence on the basis of which the defendants can claim ownership. But there was a specific plea of tenancy. This plea of tenancy is supported by documents which disclose that the defendant was in possession of the suit land since 1955-1956. There is pahani patrak Exhibit 50 and 7 X 12 extract Exhibits 48 and 49 disclosing the possession of Daiwan Annasaheb Tandale-defendant no. 1. He has paid lawani charges and has also filed receipts for paying cess. There was prima facie material to consider the defence raised by the defendant about his agricultural tenancy. In fact, the learned trial judge had framed issues as follows:

"6. Does defendant no. 1 prove that he came in to possession of land from Bhagwatbuwa in the year 1953-1954 under lease?

7. Does he prove that he was in possession of land as a tenant since 1953-1954 to 1963-1964?

8. Does defendant no. 1 prove that Tahsildar Beed auctioned suit land in the year 1962 for a period of two years and he took it on lawani?"

The findings on record show that the land was taken over by the Tahsildar in 1962 and it was allotted to the defendant for Ek Saal Lawani.

9. In the light of these facts, the crucial issue is whether defendant no. 1 was the tenant of the suit land and if yes, whether the Civil Court has jurisdiction.

10. Mr. Suryawanshi, learned Advocate for the respondent has relied on the following judgments:

1. Vaijnath Karpure (died) through L.R. & anr. vs. Mahadeo s/o. Maruti Mote [MANU/MH/1071/2010 : 2010 (5) B.C.R. 860].

2. Vaijnath s/o. Yashwant Jadhav since deceased by L.R. & Ors. vs. Smt. Afsar Begum w/o. Nadimuddin Kazi since deceased by L.Rs. [MANU/MH/2276/2010 : 2010 (4) All Mr. 906].

3. Gangubai w/o. Bhagwanrao Pawatekar (deceased through L.R. vs. Kishanrao s/o. Limbajirao Kadam (Deceased) through L.R.'s & Ors. [MANU/MH/0888/2012 : 2012 (5) All Mr. 114]

11. In the case of Vaijnath Karpure (died) through L.R. & anr. vs. Mahadeo s/o. Maruti Mote (supra), in para 7 it is held has under:

"7. The petitioner had examined himself and also examined one witness. The respondent has also examined himself and witness. It is fact that the respondent has not produced on record any document of batai patra to substantiate his contention. The terms of lease are also not detailed by the respondent. The respondent is only harping on the entry in 7/12 extract and the initial written statement of petitioner in the tenancy proceedings."

It may be stated here that this writ petition was preferred against the decisions of Revenue authorities in proceedings before the competent authority under the Hyderabad Tenancy and Agricultural Lands Act, 1950 (for short, "the Act of 1950") and the Maharashtra Revenue Tribunal. The observations will have to be read in that context.

12. In the case of Vaijnath s/o. Yashwant Jadhav (supra), the certificate of statutory ownership under Section 38E of the Act of 1950 was issued by the competent authority and the said order was challenged before the Revenue authorities and ultimately it came before the High Court. In this context, this Court was considering whether the protected tenancy was proved or not and whether the statutory ownership could be confirmed or not.

13. As regards the case of Gangubai (supra), this was again a matter arising from the Revenue proceedings. The application was moved for resumption of land for personal cultivation. The judgment of the Maharashtra Revenue Tribunal was challenged before this Court.

14. None of these cases deal with the jurisdiction of the Civil Court and the material required for framing of issue.

15. The relevant provisions of the Act of 1950 are as follows:

"32(2). Save as otherwise provided in sub-section (3A) no land holder shall obtain possession of any land or dwelling house held by a tenant except under an order of the Tahsildar, for which he shall apply in the prescribed form within a period of two years from the date of the commencement of the Hyderabad Tenancy & Agricultural lands (Amendment) Act, 1957, or the date on which the right to such possession accrued to him whichever is later.

35. Decision on claims:-(1) If any question arises whether any person, and if so what person, is deemed under section 34 to be a protected tenant in respect of any land, the land holder or any person claiming to be so deemed, may, within one year from the commencement of this Act, apply in the prescribed form to the Tahsildar for the decision of the question and the Tahsildar shall, after enquiring into the claim or claims in the manner prescribed, declare what person is entitled to be deemed to be a protected tenant, or, as the case may be, that no person is so entitled.

(2) A declaration by the Tahsildar that the person is deemed to be a protected tenant, or, in the event of an appeal from the Tahsildar's decision, such declaration by the Collector on appeal, shall be conclusive that such person is a protected tenant and his rights as such shall be recorded in the Record of Rights or, where there is no Record of Rights, in such village record as maybe prescribed.

99. Bar of Jurisdiction.:-(1) Save as provided in this Act no Civil Court shall have jurisdiction to settle, decide or deal with any question including a question whether a person is or was at any time in the past a tenant or protected tenant and whether any such tenant or protected tenant is or should be deemed to be full owner of the lands which is by or under this Act required to be settled, decided or dealt with by the Tahsildar, Tribunal or Collector or by the Commissioner or Government.

(2) No order of the Tahsildar, Tribunal or Collector or of the Commissioner or Government made under this Act, shall be questioned in any Civil or Criminal Court.

99A. Suits involving issues required to be decided under this Act.-(1) If any suit instituted in any Civil Court involves any issues which are required to be settled, decided or dealt with by any authority competent to settle, decided or dealt with by any authority competent to settle, decided or deal with such issues under this Act (hereinafter referred to as the "competent authority" the Civil Court shall stay the suit and refer such issues to such competent authority for determination.

(2) On receipt of such reference from the Civil Court, the competent authority shall deal with and decide such issues in accordance with the provisions of this Act and shall communicate its decision to the Civil Court and such Court shall thereupon dispose of the suit in accordance with the procedure applicable thereto.

Explanation.-For the purpose of this section, a Civil Court shall include a Mamlatdar's Court constituted under the Mamlatdars' Courts Act, 1906.

16. In the present case, the issue whether defendant no. 1 was a protected tenant or not was raised and the trial judge ventured to decide it on his own. The learned first appellate court completely overlooked the provisions of the Act of 1950, particularly regarding the bar of jurisdiction of the Civil Court to decide such question. It is obvious that if defendant no. 1 is in possession of the suit property, the plaintiff should have come with a case as to in what capacity he was occupying the premises from 1953-1954. The learned Advocate for the respondent is unable to answer this question. If he is a protected tenant, then as per Section 32(2), jurisdiction of the Civil Court is ousted. It was therefore necessary to decide whether he is a protected tenant or not. The issue framed by the learned trial judge in this regard, as per Section 99A, should have been referred to the competent authority under the provisions of the Act of 1950. However, this has not been done.

17. In the light of the above facts, the judgments and decrees of both the courts below are not sustainable. Hence, the Second Appeal is partly allowed. The judgments and decrees of both the courts below are set aside. It is directed that the learned trial judge shall frame issue as follows:

"Whether the defendant was a protected tenant or deemed purchaser and whether he was entitled for protection under the Hyderabad Tenancy and Agricultural Lands Act, 1950."

The learned trial judge shall refer the same to the competent authority under Section 99A of the Act of 1950. Thereafter, on receiving the findings of the competent authority and in case of appeal, the final findings on the issue from the competent appellate court, he shall proceed to decide the suit.

18. Considering the facts, the learned trial judge is directed to instruct the competent authority to expeditiously take up the matter of reference and decide it at the earliest, preferably within six months. In case of appeal therefrom, the appellate authority shall also decide the issue within six months.

19. The parties are directed to remain present in the trial court on 15.01.2019.

20. The appeal is accordingly disposed of. In the facts and circumstances of the case, there shall be no order as to costs.


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