IN IN IN THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY THE HIGH COURT OF JUDICATURE AT BOMBAY CIVIL CIVIL CIVIL APPELLATE JURISDICTION APPELLATE JURISDICTION APPELLATE JURISDICTION SECOND SECOND SECOND APPEAL NO. 169 OF 1989. APPEAL NO. 169 OF 1989. APPEAL NO. 169 OF 1989. Shri Deodatta Gopal N.Angal, Age: 54 years, Occ: Well-to-do, residing at Mrunal Bungalow, Chatushringi, Ganeshkhind Road, Pune-16. ... Appellant. (Org.Defendant.) Versus. Parvati Nandan Ganpati Deosthan, a public trust, registered under the Bombay Public Trusts Act, through its Trustees 1. Bhalchandra Yeshwant Babhale, Age: 66 years,Occ.: Retired. 2. Shri Prabhakar Yeshwatn Babhale (since deceased) 2A.Deepak Prabhakar Babhale, Adult, L.R. of Respondent No.2. 3. Madhukar Keshav Babhale (since deceased). 3A.Chandrashekhar Madhukar Babhale, Adult, L.R. of Respondent No.3. Nos.2A and 3A residing at 585, Kasba Peth, Pune 411 011. No.1 residing at 8 & 9, Chastushringi Ganeshkhind Road, Ganpati Mandir, Pune-16. ... Respondent. Shri P.K.Dhakephalkar, Senior Counsel i/by Mrs.Suhasini Mutalik for the Appellant. Shri K.S.Dewal for the Respondents. CORAM CORAM CORAM : ABHAY S.OKA, J. : ABHAY S.OKA, J. : ABHAY S.OKA, J. DATED DATED DATED : 9th & 10th January, 2008 : 9th & 10th January, 2008 : 9th & 10th January, 2008 ORAL ORAL ORAL JUDGMENT.: JUDGMENT.: JUDGMENT.: 1. I have heard the learned Senior Counsel appearing for the Appellant and the learned Counsel appearing for the Respondents. The Respondents are the : 2 : 2 : 2 : original Plaintiffs and the Appellant is the original Defendant. The Respondents are the Trustees of a public Trust duly registered under the Bombay Public Trust Act, 1950 (hereinafter referred to as the "the said Act") by the name Parvati Nandan Ganpati Deosthan. According to the case of the Respondents/Plaintiffs, on the land bearing CTS No.2771, Ganeshkhind Road, Pune having an area of 50’x50’, there are three deepmalas. It is stated that the said area of 50’x50’ is an open piece of land which was illegally and unauthorisedly trespassed upon by the Appellant and the Appellant has erected a compound wall at a distance of 30 feet from the said Deepmalas. It is the case of the Respondents that the said three Deepmalas and an area admeasuring about 50’x50’ is owned by the Trust and therefore, the same vests in the Trustees who are the Respondents/ Plaintiffs. It is alleged that there was a road leading from the Temple to the said three deepmalas which was illegally and unauthorisedly closed by the Appellant. It is the case of the Respondents that an order has been passed by the Assistant Charity Commissioner holding the suit property (an area of 50’x 50’ together with Deepmalas) as the property of the said Trust and an entry has been accordingly made in the Register maintained under the provisions of the said Act showing that the suit property is the property of the Trust. It is contended that the suit property is situated opposite : 3 : 3 : 3 : the main entrance of the Temple at a distance of 30 feet and there is no other Temple near the said Deepmalas. It is stated that the suit property is a part and parcel of the property of the Respondents. 2. The suit was contested by the Appellant by filing his written statement. It was contended that the suit property was a private property of the Appellant which was allotted to the share of the Appellant in a partition effected in the year 1949. It is stated that the said property forms part of Survey No.108/7 and the Respondents/Plaintiffs have no right, title or interest in respect of the said property. It was contended that the Assistant Charity Commissioner has no jurisdiction to decide the issue of title. The Appellant has also contended that he is openly and continuously in possession of the suit property for a period of 35 years and nobody including the Respondents have at any time challenged his title and possession. It was contended that the Appellant is not a trespasser on the suit property. 3. The trial Court decreed the suit. In Appeal, the said decree has been confirmed. 4. The Second Appeal was admitted by this Court on 30th November 1989 by passing the following order: : 4 : 4 : 4 : "The substantial question of law is non-consideration by the Courts below of 74 Bom.L.R. 198". 5. The submission of the learned Senior Counsel appearing for the Appellant is that except by relying upon an order passed by the learned Assistant Charity Commissioner, the Respondents have not led any independent evidence to establish their ownership right over the suit property. He submitted that in view of the decision of the Full Bench of this Court in the case of Keki Pestonji Jamadar v/s. Rodabai Khodadad Merwan Irani (74 Bom.L.R. page 198), the Civil Court has the exclusive jurisdiction to decide the issue of title. He submitted that the Civil Court could not have passed a decree by upholding the title of the Respondents only on the basis of the order passed by the learned Charity Commissioner. He submitted that without there being any evidence on record adduced by the Respondents in support of their title to the suit property forming part of Survey No.108/7, the Courts below have accepted the title of the Respondents only on the ground that there was no other temple near the said Deepmalas and therefore, the said Deepmalas form part of the said Temple. He submitted that there is no basis for the finding recorded by the Appellate Court that as per the : 5 : 5 : 5 : Hindu religious concept, the said Deepmalas do not exist independently of the Temple. He submitted that as the Respondents/Plaintiffs have not led any evidence of their title independently of the order passed by the learned Assistant Charity Commissioner, the finding on the issue of title ought to have been recorded against the Respondents. He invited my attention to the finding recorded by the learned trial Judge on the issue Nos.4 and 5 which records that the Appellant has established that Survey No.108/7 was allotted to the share of the Appellant’s father but it will have no effect on the claim of the Respondents/ Plaintiffs. He submitted that it is a case where no evidence of title has been adduced by the Respondents/ Plaintiffs. 6. The learned Counsel appearing for the Respondents supported the impugned judgments and decrees by pointing that even the property on which the temple is situated was claimed to be the personal property of the Appellant. The said contention was negatived by the Civil Court and the decree of the Civil Court has been affirmed in the First Appeal. He submitted that the case made out in the said suit by the Appellant was the same that the land on which the temple is constructed was allotted to the predecessor of the Appellant in a partition and the same case has been disbelieved by the trial Court and the said decision of the trial Court has : 6 : 6 : 6 : been affirmed by this Court. He submitted that apart from these facts, the Courts below were justified in taking into consideration the order passed by the learned Assistant Charity Commissioner in view of the decision of the Division Bench of this Court in the case of Samatha Lad Vanjari Samaj Ram mandir Trust by the Trustees v/s. Waman Kisan Sanap and others (1976 Mah.L.J. 806). He submitted that considering the totality of the oral and documentary evidence on record, a finding of fact has been recorded by the trial Court that the Respondents/ Plaintiffs have established their title to the suit property. He submitted that after consideration of the evidence on record, the Appellate Court has expressed general agreement with the findings recorded by the trial Court. He, therefore, submitted that no interference is called for. 7. I have perused the impugned judgments and the record and proceedings. It will be necessary to refer to the averments made in the plaint. Paragraphs Nos.4, 5 and 6 of the plaint read thus: 4. The plaintiffs submit that the said three Deepamala and the surrounding area admeasuring about 50 x 50 belong to and own by the Parvati Nandan Ganpati Deosthan of which the plaintiffs are the trustees. There was a road from the temple : 7 : 7 : 7 : leading to the said three Deepmala. The defendant has illegally and unauthorisedly closed the said road and also trespassed in the property of the plaintiffs with the sole intention of grabbing the property of the said trust. 5. The plaintiffs say and submit that the suit property is declared by the Assistant Charity Commissioner as trust property. Accordingly an entry is already made in the register of the Asstt.Charity Commissioner and maintained by virtue of Section 22 of the Bombay Public Trusts Act. The said decision is not set aside and the Asstt.Charity Commissioner has exclusive jurisdiction to decide as to whether a particular property is a public trust property or not. The defendant is aggrieved by the said decision and is, therefore, harassing the plaintiffs in every possible way. 6. The suit property including the Deepmalas is situated opposite the main entrance of the temple at a distance of 30 ft. There is no other temple near the said Deepmala and even this physical fact clearly establishes that the said property is a part and parcel of the Deosthan property of which the plaintiffs are the trustees." : 8 : 8 : 8 : In paragraph 7 of the plaint it is asserted that the Deepmalas have been constructed 100 years before the institution of the suit. It is asserted that at that time the suit property was far away from the city of Pune. It is stated that the suit property is exclusively used for the purpose of Deosthan and at the time of Ganesh Festival, Navaratri and during the days of Diwali, the Deepmalas are lighted. It is asserted that according to the Hindu sentiments and religious rites the Deepmalas are always in front of a public temple and in fact the Deepmalas are the incidence of a public temple. Thus the foundation of title as pleaded in the plaint is that the suit property is declared by the Assistant Charity Commissioner as the trust property. The second foundation is that according to the Hindu sentiments and religious rites, the Deepmalas are always part of a public temple and in fact the Deepmalas are incidence of a public temple. In the written statement it is contended that in a partition effected in the year 1949 between the father of the Appellant and other branches of the family of his father, Survey No.108/7 admeasuring 1 acre was allotted to the share of the Appellant’s father. It is contended that the suit property forms part of Survey No.108/7. It is contended that the suit property is not the property of the Temple trust. : 9 : 9 : 9 : 8. It will be necessary to refer to the findings recorded by the trial Court. The trial Court held that Survey No.108/7 was allotted to the share of the Appellant’s father in partition and that it is established that the suit property forms part of survey No.108/7. It was held that the said finding will not have the effect on the claim of the Respondents over the suit property. 9. In the body of the judgment, the learned trial Judge has referred to the earlier litigation between the Respondents and the ancestors of the Appellant. The earlier suit was filed by the Respondents against one Dattatraya Sadashiv Angal, his wife and the Municipal Corporation of the City of Pune. In the said suit, the predecessors of the Appellant contended that they are the owners of the Temple and it was not a Trust property. The said contention of the prdecessors of the Appellant was not accepted. An appeal was preferred in the District Court. The District Court held that the Temple along with the stone pavement around the temple and a sopa of 10 khans was the property of the Respondents and it was not the private property of the ancestors of the Appellant. The decree was confirmed by this Court. However, the finding of the trial Court is that in the earlier litigation there was no dispute as : 10 : 10 : 10 : regards the title to the said Deepmalas. It is not disputed that the suit property subject matter of the present suit was not the subject of the said earlier suit. Therefore, the decision in the said earlier suit has no relevance so far as the title to the present suit property is concerned. 10. The trial Court found that the Temple property bears Survey no.108/2 and the suit property bears Survey No.108/7. Referring to the survey map of the City Survey Office at Exh.35, the trial Court observed that the Temple is shown as Chalta No.2600. The trial Court observed that the said map shows that the Deepmalas are separated from the temple by a road. The trial Court observed that the said Deepmalas were exactly in front of the Temple in question. In paragraph 3 of the judgment the trial Court observed that though the Appellant has stated that there is no relation between the temple of the Respondents and the Deepmalas, the Appellant was unable to connect the said Deepmalas with any other Temple. On the basis of the aforesaid evidence, a finding was recorded that the Respondents had established their title to the suit property. 11. Now going to the decision of the Appellate Court, in paragraph 8 of the judgment the Appellate Court has observed that there was no dispute that at the : 11 : 11 : 11 : time of registration of the Respondent-Trust in the year 1952, the suit property was not shown as the property of the Trust. The Appellate Court found that the temple was on the land bearing Survey No.108/2 and the suit property was a part of Survey No.108/7. 12. The Appellate Court further proceeded to hold: "Having to the location of the suit Deepmalas vis-a-vis Plaintiff temple and the Hindu religious concept and tradition that Deepmalas to do exist independently of a temple, I rather find it difficult to persuade myself to accept the contention of the defendant in this behalf. The plaintiff temple and the suit property, both are surrounded by other properties belonging to Angal family. As seen earlier, the claim of Angal family that plaintiff temple belongs to them, was negatived in earlier litigation between Angals and Babhales notwithstanding the fact that Survey No.108 is shown as owned by Angals in the relevant record of rights. The presumption of correctness of entries in record of rights vis-a-vis Survey No.108/7 of which suit property is a part, stands rebutted by other evidence on record. No undue significance need be attached to the fact that plaintiff : 12 : 12 : 12 : temple and suit Deepmalas are separated by a road because, as rightly observed by the learned trial Judge, as rightly observed by the learned trial Judge, that the roads came in existence, consequent upon partition of Survey No.108 among different branches of Angal family and the introduction of city survey. The ruling in the case of Keki Pestonji Jamadar v/s. Rodabai 74 B.L.R. 198, is no doubt an authority for proposition that section 80 of the Bombay Public Trust Act cannot be operated as a bar to the jurisdiction of Civil Court to decide question of title but then there is also no gainsaying the fact that Assistant Charity Commissioner held the suit property as the property of the plaintiff trust after necessary inquiry and the evidence on record tends to support the said finding. On preponderance of evidence, the learned trial Judge rightly found that title to suit property vests in plaintiff trust and I do not see any reason to record my dissent from it." In paragraph 10 the Appellate Court recorded a finding that though the Appellant had not set up a plea of adverse possession in so many words but the said plea was implicit in the contention taken in the alternative. : 13 : 13 : 13 : 13. A perusal of the deposition of the only witness examined by the Respondents shows that he has not referred specifically to the origin or the basis of the title and ownership of the Respondents over the suit property. 14. In the case of Keki Pestonji Jamadar (supra), a Full Bench of this Court held that the decision of the authorities under the said Act of 1950 on the question whether any particular property is the property of the Trust will not bar the jurisdiction of the Civil Court to determine the true title to that property. In the decision of the Division Bench of this Court in the case of Samastha Lad Vanjari Samaj (supra), the Division Bench has referred to the aforesaid decision of the Full Bench. However, the decision of the Division Bench does not lay down that the finding recorded by the Charity Commissioner in an enquiry held under the said Act of 1950 as regards the title of the Trust to the property is binding on the Civil Court. Paragraphs 41 to 45 of the said decision read thus: 41. After giving the matter and the observations of the Full Bench our careful consideration, we have come to the conclusion that it is really a matter of levels. The Deputy or the Assistant : 14 : 14 : 14 : Charity Commissioner is duty bound as required by the statute, to decide the question relegated to him that the particular property is or is not the property of the trust. His power and jurisdiction, therefore, extends to that level or limit upto which he can so decide without touching on disputed questions of title. 42. If he stops at that level, as he must, then it is always open to a third party, as held by the Full Bench, to assert his hostile claim, either by filing a suit in a Civil Court for a declaration that the property belongs to him, or to claim such a title by way of defence in any other proceedings that may be adopted in relation to that property. 43. If, as has been held by the Full Bench, questions of title to the trust property are outside the scope of inquiry under section 19, then no real difficulty arises because nothing in the because nothing in the because nothing in the decision decision decision of the Deputy or the Assistant Charity of the Deputy or the Assistant Charity of the Deputy or the Assistant Charity Commissioner Commissioner Commissioner or other authorities under the Act or other authorities under the Act or other authorities under the Act will will will affect any anterior or superior title or any affect any anterior or superior title or any affect any anterior or superior title or any question question question as to whether the author of the trust was as to whether the author of the trust was as to whether the author of the trust was the the the lawful owner of the property because all those lawful owner of the property because all those lawful owner of the property because all those questions questions questions will be decided in appropriate will be decided in appropriate will be decided in appropriate proceedings proceedings proceedings by a Civil Court. by a Civil Court. by a Civil Court. : 15 : 15 : 15 : 44. In other words, these questions operate at a different level than that at which the Charity Commissioner has to decide the questions which he is required to decide under the statute. 45. It bears repeating that the Full Bench of this Court in Keki Pestonji’s case (supra) did not decide, and, indeed, could not in the face of the statute, decide that the authorities under the statute were not to decide the specific question which had been relegated to them by the statute, namely, whether any particular property, was the property of the trust or not merely because a third party has laid a claim in himself to that property." (Emphasis added). 15. Thus it is apparent that the issue of title will have to be decided by the Civil Court independently of the finding recorded by the authorities under the said Act of 1950. As pointed out earlier, in the plaint the foundation of the title pleaded is the decision of the Charity Commissioner as well as the allegation that according to the Hindu sentiments and religious rites the Deepmalas are the incidence of a public Temple and they form an integral part of the property of the Temple. A perusal of the evidence led by the : 16 : 16 : 16 : Respondents shows that nothing is placed on record to show the existence of "Hindu sentiments and Religious rites" regarding the Deepmalas. The Respondents have made no attempt to lead evidence to show as to how the suit property vests in the trust especially when the Appellate Court has noted an admitted position that at the time of registration of the Trust in the year 1952, the suit property was not shown by the Trustees as the property of the Trust. Without there being any foundation laid by the Respondents of their title and the ownership, the trial Court has purported to decide the title in favour of the Respondents only on the basis of preponderance of evidence. Except for relying upon the order of the Authority under the said Act of 1950 and the alleged Hindu sentiment and religious rites, nothing is pleaded and proved by the Respondents to show their title. On the other hand the Trial Court accepted the case made out by the Appellant that in the partition of the year 1949, the land bearing Survey No.108/7 was allotted to the share of his father. The Appellate Court seems to have proceeded on the footing that as the Deepmalas on the suit property are not shown to be attached to any other Temple, the same form part of the property of the Respondents as the same are in front of the property of the Temple. As pointed out earlier, two properties are separated by a road in between the two properties. Thus the sum and substance is that taking : 17 : 17 : 17 : the decisions of both the Courts below as it is, except for the order passed by the Authorities under the said Act of 1950, there is no evidence of ownership/title of the Respondents. The Civil Court has to decide the issue of title independently of the said orders. In the light of the settled legal position, the burden was on the Respondents to prove their title which has not been discharged. Therefore, having regard to the evidence and the documents on record, the finding that the Appellant is a trespasser cannot be sustained. 16. Hence the Second Appeal must succeed and the following order is passed: i) The impugned Judgments and Decrees are quashed and set aside and Special Civil Suit No.176 of 1981 stands dismissed. ii) There will be no order as to costs through out. 17. At this stage, the learned Counsel appearing for the Respondents prays that the Appellant be directed to maintain status-quo as of today in respect of the suit property. The said prayer is opposed by the Counsel for the Appellants. : 18 : 18 : 18 : 18. Considering the facts and circumstances of the case, the Appellant will maintain status-quo as of today in respect of the suit property for a period of 12 weeks from today. Judge. Judge. Judge.