{1} IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT AURANGABAD FIRST APPEAL NO.51 OF 2000 1. Ganpat Rambhau Survase-Walke (Pujari) Age-55 years, Occ-Business 2. Shrihari Baburao Survase-Walke (Pujari) Age-55 years, Occ-Service Both R/o Tuljapur, Dist-Osmanabad APPELANTS VERSUS 1. Government of Maharashtra, Through Collector, Osmanabad President of Tuljabhavani Temple Trust, Tuljapur, Dist-Osmanabad 2. Chief Officer, Municipal Council, Tuljapur Ex-Officio Trustee of Tulja Bhavani Temple Trust Tuljapur, Dist-Osmanabad 3. Vice President of Tuljabhavani Temple Trust Tuljapur, Dist-Osmanabad 4. Member of Legislative Assembly, Maharashtra State, Member of Tuljabhavani Temple Trust, Tuljapur, Dist-Osmanabad 5. Tahsildar, Tuljapur, Tahsil Officer, Dist-Osmanabad {2} 6. Shri Pratap Singh Baburao Ghorpade (Appeal Dismissed) Age-Major, Occ-Bhope Pujari, Police Patil, R/o Gajendragad, Tq-Dharvad, Dist-Osmanabad 7. Vijaysing Aamruttrao, Police Patil, Bhope Pujari, Age-70 years, R/o Kolhapur (Deceased L.Rs.) 7.1 Vijaymala Vijaysing Kadam (Bhopekar) Age-Major, Occ-Household, R/o 2248, Shukrawarpeth, Kolhapur 7.2 Vikrant Vijaysing Kadam (Bhoperao) R/o Sadar, 7.3 Sau Vinita Ratnakar Ghatke “Arunodaya” Housing Society, Kolhapur 8. Yuvaraj @ Ganpatrao Vitthalrao Patil, Bhope Pujari, Age-61 years, Pensioner R/o Tuljapur, Dist-Osmanabad 9. Prakash Shivajirao Patil (Died) Through his heirs 9-A Sachin Prakash Kadam Patil Age-21 years, 9-B Dhiraj Prakash Kadam Patil Age-13 years, Through Guardian Sachin Prakash Kadam Patil Both Occ-Education R/o Tuljapur Dist-Osmanabad 10. Manikrao Narsing Patil {3} Bhope Pujari (Died) Through LR 10-A Appasaheb Manikrao Patil Age-45 years, Occ-Agril R/o Tuljapur, Dist-Osmanabad 11. Shivaji Ambadasrao Malba (Died) LRs 11.1 Vijay Shivaji Malba Age-50 years, Occ-Business & Agri. 11.2 Prafulla Shivaji Malba Age-45 years, Occ-Business & Agri 11.3 Sudhir Shivaji Malba Age-43 years, Occ-Business & Agri 11.4 Dilip Shivaji Malba Age-35 years, Occ-Business & Agri All R/o Tuljapur, Dist-Osmanabad 12. Narsing Yashwantrao Malba Bhope Pujari, Age-40 years, R/o Sadar 13. Dattaji Babasaheb Bhopepujari (Died) 13-A Pramod Dattatraya Kadam Bhope Age-30 years, Occ-Business 13-B Sanjay Dattatraya Kadam Bhope Age-25 yeas, Occ-Business Both R/o Khatkal Galli, Tuljapur, Dist-Osmanabad 14. Ambadas Bajirao Bhopepujar {4} Age-45 years, R/o Sadar 15. Ambadas Sonerao @ Rajabhau Bhopepujari R/o Sadar 16. Ganpat Ravsaheb Bhopepujari (Deceased) LR Kalyan Ganpatrao Kadam Age-50 years, 17.a Sambhaji Shivaji Kadam Bhope Age-45 years, Occ-Business R/o Khatkal Galli, Tuljapur Dist-Osmanabad 17.b Tai Arjun Gophane Age-30 years, Occ-Household R/o Paranda, Dist-Osmanabad 17.c Vijaya Vilas Patil (Bhosale) Age-25 years, Occ-Household R/o Makni, Tq-Omerga, Dist-Osmanabad 17.d Mai M.Deshmukh DELETED Age-25 years Occ-Household R/o Bhiwarwangi No.1, Tq-Karmala Dist-Sholapur 18. Joint Charity Commissioner, Aurangabad 19 The Administrator Shri Tuljabhavani Mandir, Tuljapur Ex-Official Trustee 20. Account Officer, Finance Department, Government of Maharashtra, Secretariat Mumbai RESPONDENTS {5} ....... Mr. S.S.Wagh, Advocate for appellants Mr. V.G.Shelke, AGP for respondents No.5, 18 and 20 Mr.J.R.Patil, Advocate for respondents No.7/1 to 7/3 Mr.S.T.Shelke, Advocate for respondents No.1 to 4 Ms.M.D.Thube-Mhase, Advocate for respondent No.10-A Mr.V.G.Mete, Advocate for respondent No.16 ....... [CORAM : A.V.POTDAR, J.] RESERVED ON : 13th April 2010 PRONOUNCED ON : 29th April 2010 JUDGMENT : 1. By the present First Appeal, filed u/s 96 of the Civil Procedure Code, the appellants, original plaintiffs, have challenged the judgment and decree dated 30.09.1999 passed in Trust Suit No.1/1991. 2. It appears that the First Appeal was admitted on 8th March 2000. 3. Before I embark upon the merits of the matter, it is necessary to consider few facts of the case, which can be enumerated thus - {6} (A) (i) The appellants have filed Trust Suit No.1/1991 before the District Court, Osmanabad for declaration that they have absolute right over the offerings and income of Tuljabhavani Mandir, Tujlapuar; for perpetual injunction against the respondents / defendants restraining them from appellants’ enjoyment over this right and for declaration that the compromise arrived in suit No.59/1/1357 Fasli (1947 A.D.) in the matter of “Daulatrao V/s Gangaram” is not binding on them and not affected their rights. (ii) According to the appellants / plaintiffs, on or about 9-10 Hijari, the then Ruler, Emperor, Adilshah Nizam had granted Grant /Sanad in favor of their ancestors of management of the temple of Tuljabhavani (Herein after this temple will be referred as “said Temple”) and to collect the offerings given to the Deity by the devotees. It is also the contention of the appellants / plaintiffs that since then the forefathers of the appellants / plaintiffs were enjoying the said right. It is further alleged that one suit No. 16.2.1328 Fasli (1918 A.D.), was filed by some Patil persons against Meer Majeah Committee and 33 others in respect of right and income of the said Temple. In the said litigation, according to the appellants / plaintiffs, grand father of the appellants, was arrayed as defendant No.34. It is alleged that in the said suit, the said grand father of the appellants had filed written statement as well as Grant given by Ex-Ruler in favor of their ancestors. Though the said litigation was taken till the High Court by the defendants / {7} respondents, yet the same was dismissed and hence the parties to the said litigation compromised the dispute between them. It is also alleged that the parties to the said litigation settled their claim by way of compromise, however by excluding the grand father of the appellants. The grand father of the appellants / plaintiffs had not taken any steps against his exclusion in the compromise of the said litigation. It is alleged that these Patil persons have illegally took over the control of the said Temple, by taking the rights of the ancestors of the appellants / plaintiffs, somewhere in the year 1950. It appears that thereafter one suit bearing No.1/1971 was filed by the appellants / plaintiffs in the court of District Judge, Osmanabad, however that suit was rejected by the then District Judge, Osmanabad on 05.05.1973, as the same was instituted without obtaining statutory permission from the Charity Commissioner. (iii) The said Temple was registered under the provisions of the Bombay Public Trust Act in the year 1962 vide Registration No. A-1046. It was contended that though the appellants are entitled for the entire offerings / income of the said Temple, yet defendants No.1 to 17, who are arrayed as respondents in the present First Appeal are unlawfully enjoying 1/3rd Share of the said income whereas 2/3rd share of the income goes to the Government. Hence, after issuing notice u/s 80 of the Civil Procedure Code, the suit was instituted before the District Court, for the reliefs prayed therein. {8} (B) It appears from the Record and Proceedings that the said suit was contested by the respondents / defendants by filing written statement. The defendants / respondents are in four groups viz. written statement filed by respondent No.1 (Defendant No.1) was at Exhibit-56, written statement filed by the predecessor of respondents No.7/1 to 7/2 (Defendant No.7) was at Exhibit-62. The written statement filed on behalf of defendant No.7 was adopted by respondents No.11 to 16 (Defendants No.11 to 16) and pursis in that behalf is filed at Exhibit-167 and written statement field by respondents No.8 to 10 (defendants No.8 to 10) is at Exhibit-50. The additional written statement field by original defendants No.11 to 16 is at Exhibit-168. (C) It can be seen that in the written statement filed on behalf of defendant No.1, i.e. Collector, Osmanabad it was contended that in the year 1909, Hyderabad Government, as the then Government was, took over the possession of the said Temple due to the dispute between the villagers on one side and the then Priests of the said Temple on the other side, over the income and rights over the enjoyment of the said Temple. The then Hyderabad Government had directed to all the concerned to settle their rights through concerned Civil Court. In pursuance of these directions, 5 suits were filed by the concerned before the District Court, Osmanabad for declaration in respect of their right to perform Pooja and their entitlement for the income and offerings by the {9} devotees in the said Temple. It was specifically contended that no such declaration was sought by the ancestors of the present appellants / plaintiffs. Some compromise was arrived at in the said suits while some questions were decided in the said suit by the then District Judge, Osmanabad. The findings recorded by the then District Judge, Osmanabad in those suits were confirmed in High Court. As per the record of the Government the family of the appellants / plaintiffs, has no right in the income of the said Temple. It was also contended that as the said Temple was attached by the then Hyderabad Government in the year 1909 and the ancestors of the appellants / plaintiffs, failed to seek declaration as per the circular issued by the then Hyderabad State, the suit now filed by the appellants / plaintiffs is barred by limitation and hence request was made to dismiss the suit. (D) In the written statement filed by the predecessor of respondents No.7/1 to 7/3, and respondents No.8 and 10, they have denied the claim of the appellants / plaintiffs as according to them their rights were settled in suit No.2/1322 Fasli (1912 AD) to which grand father of the appellants / plaintiffs was also a party. As the said decree was not challenged within the period of limitation, as the same was passed in the year 1950, the suit filed by the appellants / plaintiffs in the year 1991 is barred by limitation. Similar defense was taken by the respondents No.11 to 16 through their predecessor, while in the additional written statement, the defence is taken that the suit is barred by the {10} principles of res judicata also. (E) It appears from the Record and Proceedings that on the basis of these pleadings issues were framed at Exhibit-78 on 29.01.1994 including the issue of limitation i.e. issue no.5. The issue no.5 was treated as preliminary issue. After hearing learned counsel for the respective parties, learned District Judge, vide judgment and order dated 30.09.1999, answered the said issue No. 5 in affirmative that the suit is barred by the period of limitation and dismissed the suit. The said order is impugned in the present First Appeal. 4. Heard learned counsel for the respective parties in the light of above referred pleadings of the parties and also perused the impugned judgment and order. 5. It is no more in dispute that the issue of limitation can be treated as a preliminary issue, provided that it should be pure question of law to be decided on the basis of facts pleaded and not a mixed question of facts and law, which requires the parties to lead evidence to establish as to when the cause of action arose to institute legal proceedings in the court of law. 6. Though the impugned judgment and decree is challenged by the appellants on the grounds mentioned in para 2 (I) to (X) of the Appeal Memo, yet the learned counsel appearing on {11} behalf of the appellants has contended that the right claimed by the appellants / plaintiffs is based on the Grant issued in favour of ancestors of the appellants, as they had absolute right to collect income / offerings to the Deity by the devotees, either immovable or movable property, then as per section 10 of the Limitation Act, the provisions of the Limitation Act would not be applicable to the case of the appellants. Section 10 of the Limitation Act reads thus - “10. Suits against trustees and their representatives – Notwithstanding anything contained in the foregoing provisions of this Act, no suit against a person in whom property has become vested in trust for any specific purpose, or against his legal representatives or assigns (not being assigns for valuable Consideration), for the purpose of following in his or their hands such property, or the proceeds thereof, or for an account of such property or proceeds, shall be barred by any length of time.” On bare reading of section 10 of the Limitation Act, it is clear that the provisions of this Act can be invoked against any person in whom the property has become vested for a specific purpose or his legal representatives or assigns not being assigns for valuable consideration. It applies to 3 categories of reliefs – namely – to follow the Trust property or its proceeds or for account of the Trust property or its proceeds. Thus, these provisions apply only against a person on whom the property has become vested for any specific purpose. From the facts pleaded in the plaint by the appellant, it is clear that the property of the said Temple has not become vested {12} with the original defendants / respondents for any specific purpose or so. This fact is further clear from the prayer clause (a) to (c) of the plaint. As the relief claimed by the appellants is for the declaration of assertion of their vested rights and for consequential reliefs of injunction and not for the possession. 7. In such circumstances, considering the pleadings and prayers in the plaint of the appellants before the lower court, it cannot be accepted that the provisions of section 10 of the Limitation Act will be applicable to the suit instituted by the appellants / plaintiffs in the District Court, Osmanabad and exempted from the operation of Limitation Act 1963, as urged. 8. The next point urged before this Court by the learned counsel for the appellants is that the issue of limitation is a mixed question of facts and law and hence it cannot be decided as preliminary issue, without giving an opportunity to the parties to lead evidence to that effect. In support of his submission, learned counsel for the appellants has placed reliance on the judgment reported in AIR 2005 SC page 1556 in the matter of “Gunwantbhai Shah V/s Anton Elias”. This point was urged in the context of 2 more points raised in the appeal memo that the suit of the appellants / plaintiffs, was for declaration and injunction. It is urged that though the appellants failed to establish that the appellants are entitled for declaration, as prayed for, yet for their prayers of injunction there is recurring cause of action {13} and then section 22 of the Limitation Act will come into picture and Article 58 will not be applicable to the facts of the suit of the plaintiffs. In support of this submission, learned counsel for the appellants placed reliance on the judgment reported in AIR 1959 SC page 798 in the matter of “Balkrishna Savlaram Pujari Waghmare & others V/s Shree Dhyaneshwar Maharaj Sansthan” with three companion other civil appeals. 9. While opposing these submissions, it is vehemently urged by the learned counsel for the respective respondents that these submissions are deceptive, as they are far away from the facts pleaded in the plaint. It is not disputed by either side that the said Temple, situated at Tuljapur, is one of the ancient temples. Earlier, the area where the said Temple is situated, was under the Rule of the then Ruler Adilshah. Before coming into force of the Bombay Public Trust Act, 1950, this Temple was registered under the Hyderabad Endowment Regulation/Act. Subsequently, the said Temple came to be registered under the Bombay Public Trust Act, in the year 1962. This fact finds place in unnumbered paragraph No.3 of para 1 of the appeal memo also. Apart from it, from the chequered history of the previous litigations, as is given / pleaded in plaint para 5, it appears that “in the year 1950 the right of the ancestors of the appellants was denied by the respondents, though the nail bite fight was given in the said litigation by the grand father of the appellants”. At the same time, pleadings in plaint are totally silent that till the date of the institution of the suit, the {14} appellants / plaintiffs are / were collecting the offerings / income of the said Temple. This pleading is necessary for consideration of the submissions in respect of continuous wrong / action and hence in case the suit for declaration fails, however the suit for injunction is maintainable. 10. In view of these facts pleaded in the plaint and appeal memo, certain provisions of the Hyderabad Endowment Regulation 1349 Fasli – 1940 A.D. require to be considered. Which reads thus - “6. If on receipt of every such intimation or on receipt of any other reliable information in some other way, the Director of the Endowments of the Taluk, is satisfied prima facie about any property having been endowed and if it is found that property has not yet been entered in the “Book of Endowments”, it shall be the duty of the Director of the Endowments of the Taluk, to put the Notification in the Tahsil office and if the property is immovable, to put it in any prominent place and also on the place where the endower resides and in some other place where he thinks fit and also to have it published in the Jarida. 7. If no person puts forward an objection within the fixed period mentioned in the Notification and if in fact the property is found to be a legal endowments, then the endowed property should be registered. 10. (a) Every person whose objection has been disallowed, may file a suit for a declaration of right in the Civil Court, within one year from the date of dismissal of the objection whereby his rights may be decided and whatever entries have been made in the {15} “Book of Endowments” will be governed by those rights which may be declared finally by the Civil Courts in such suits. 10 (b) The person who has not submitted any objection petition under Section 8 has got the right in law to get a declaration with regard to any of his rights by the competent Court will not be affected by this Section. 14 (i) If every such property entered in the “Book of Endowments” is in possession of a person who has not been admitted by the Endowments Department, then such property will be given in possession of the Endowments Department by the District Civil Judge. (ii) ..... (iii) In all the proceedings that may be adopted under this Section, the entries of the “Book of Endowments” will be regarded as correct and the orders that may have been passed in the course of objections petitions under section (6) will be regarded in these proceedings as conclusive and final” 11. Section 28 of the Bombay Public Trust Act, 1950, which applies to the State of Maharashtra, reads thus- “28 (1) All public trusts registered under the provisions of any of the enactments specified in Schedule A and Schedule AA shall be deemed to have been registered under this Act from the date on which this Act may be applied to them. The Deputy or Assistant Charity Commissioner of the region or sub-region within the limits of which a public trust had been registered under any of the said enactments shall issue notice to the trustee of such trust for the purpose of recording of entries relating to such trust in the register kept under {16} Section 17 and shall after hearing the trustee and making such inquiry as may be prescribed record findings with the reason therefor. Such findings shall be in accordance with the entries in the registers already made under the said enactment subject to such changes as may be necessary or expedient. (2) Any person aggrieved by any of the findings recorded under sub-section (1) may appeal to the Charity Commissioner. (3) The provisions of this Chapter shall, so far as may be, apply to the making of entries in the register kept under Section 17 and the entries so made shall be final and conclusive.” From the pleadings of the appellants in para 5 of the plaint it is clear that no such claim / objection was filed by the forefathers / ancestors of the appellants under the Hyderabad Endowment Regulations. 12. The Supreme Court, in the matter of Gunwantbhai Shah, referred (supra), has held that dismissal of suit as barred by limitation by treating the issue of limitation as preliminary issue in the suit for specific performance of agreement to sell and for perpetual injunction. In the said suit the agreement of sale placed on record indicate that no date was fixed for performance in agreement. It is the Plea of plaintiff that the plaintiffs had paid entire consideration and had been put in possession of the land subject matter of the agreement to sale. The suit was filed after the span of 29 years after the agreement. In the premise, the question {17} of limitation required investigation on the terms of agreement and on basis of evidence produced by parties. Dismissal of suit as barred by limitation without recording evidence is not proper. Whether the party was in possession and entitled for injunction is a mixed question of fact and law as well as the cause of action to the said relief arises is also a question of fact requires to be decided on the aspect as to whether the alleged defendants were interfering with the suit property. Considering the recitals in agreement of sale, it is clear that no date was fixed for the performance of the agreement of sale hence question of limitation is held to be a mixed question of law and fact. As against this from the pleadings in para 5 of the plaint, it is clear that rights were denied to the forefathers of the appellants long back in the year 1950 and since then excluded / ousted from collection / receipt of income and offerings to the Deity by the devotees. Hence, even on facts also the present appellants are not at par with the observations in the said ruling. 13. During the course of submissions, learned counsel for the appellants, heavily relied on the observations of the Supreme Court in para 31 of the judgment in the matter of Balkrishna Pujari and others, referred (supra) whereas learned counsel for the respondents relied on the observations of the Supreme Court in the said judgment in para 30, 31 and 35, which read thus - “30. On these facts the High Court has held in favour of {18} the appellants, and rightly we think, that it was difficult to accept the respondents’ contention that the cause of action for the present suits which were expressly based upon the status of the Guravs as hereditary servants arose in 1911. But, the High Court felt no doubt that the cause of action to file the present suits had accrued either on 12.09.1922, when the trustees filed their suit under s. 9 of the Specific Relief Act or in any event on 04.11.1922,, when the said suit was decreed and the Guravs were consequently dispossessed. In our opinion this conclusion is also right. One of the Guravs who was examined in the present litigation has stated that, ‘if in any year when it is the turn of any takshim to serve, if a person outside the Gurav family is appointed by the trustees, all the takshims have a right to – object’. There is also no dispute that since the dismissal of eleven Guravs in 1911 till the institution of the present suits none from the Gurav family has served the temple except for 3 ½ months in 1922 when the Guravs had wrongfully obtained possession of the temple. In 1922 the Guravs knew that their claim of ownership had been rejected and that the only right which they could set up was as hereditary worshipers of the temple and not its owners. This right was specifically denied by the trustees in their plain while it was specifically set up in defence by the Guravs in their written statement; and the decree that followed upheld the trustees’ case and rejected the defendant’s claim. On these facts the conclusion is irresistible that the right to sue accrued to the Guravs at the latest on 04.11.1922, when a decree was passed under s.9 of the