1 sa475/2000 IN THE HIGH COURT OF JUDICATURE AT BOMBAY APPELLATE SIDE, BENCH AT AURANGABAD SECOND APPEAL NO. 475 OF 2000 Govind Maharaj Sansthan, Pimpangaon Hareshwar, A Registered Public Trust, Through It’s President Shri Damu Dhanaji Patil, Address : Pimpalgaon-Hareshwar, Taluka Pachora, District Jalgaon Appellant V E R S U S Shri Vitthal Mandir Sansthan, Pimpangaon Hareshwar, A Registered Public Trust, Through It’s Trustee and Archak; Tukaram Onkar Patil, Age 60 years, Occupation Archak, Resident of Pimpalgaon-Hareshwar, Taluka Pachora, District Jalgaon Respondent Shri Rajendra Deshmukh, Advocate for the appellant Shri A.G. Talhar, Advocate for the respondent CORAM : A.V. NIRGUDE, J. DATED : 2nd August, 2011 ORAL JUDGMENT : 1. This second appeal has a chequered history, which can be narrated, in short, as under : At village Pimpalgaon-Hareshwar, Taluka Pachora, District Jalgaon, there are two public trusts, one is named as ‘Govind Maharaj Sansthan’ and other is named as ‘Vitthal Mandir Sansthan’. (For short, they shall be referred to as ‘Govind Sansthan’ and ‘Vitthal Sansthan’, respectively). Vitthal Sansthan got registered as public trust way back in 1952, but it appears, at that time the properties belong to the said trust were not included in the application moved under Section 19 of the Bombay Public Trusts Act. It appears that Vitthal Sansthan had several house properties at the village and the Village Gram Panchayat’s record showed those properties in their name. It so happened that, after few years, one Damu Dhanaji Patil became Sarpanch of the Gram/village panchayat, and during 2 sa475/2000 his tenure, the Gram Panchayat passed a resolution and declared that three properties (viz.C.T.S. Nos. 712, 528 and 538) standing in the name of Vitthal Sansthan (out of several other) would stand in the name of Govind Sansthan. This resolution was passed in 1976. Thereafter, Damu Dhanaji Patil took another step and informed about this to the city survey authorities, and, the properties then were entered in the name of Govind Sansthan even in city survey record. By 1986, the mutations took place in favour of Govind Sansthan. 2. In 1988, Damu Dhanaji Patil made an application under Section 22-A (mentioned as S.22) of the Bombay Public Trusts Act for including the above mentioned three properties in the name of Govind Sansthan in the record maintained by the Assistant Charity Commissioner. A public notice was issued and the trustees of Vitthal Sansthan opposed the move. They took objection that the three properties belonged to their trust. They took up a stand that Damu Dhanaji Patil fraudulently changed the record of Gram Panchayat and succeeded in getting even the city survey record mutated in favour of Govind Sansthan. 3. The learned Assistant Charity Commissioner held that the disputed three properties stood in the name of Govind Sansthan and also held that they are in their possession. He therefore accepted this change report. The Vitthal Sansthan went in appeal under Section 70 of the Bombay Public Trusts Act before the Joint Charity Commissioner, but he too dismissed their appeal. Thereafter, the case came before the learned District Judge, Jalgaon. The learned District Judge observed that since Govind Sansthan could not explain as to how the record was changed, it had failed to prove that the properties belonged to their trust. Govind Sansthan filed this second appeal, and, at the time of admission, following substantial questions of law 3 sa475/2000 were framed : (A) Whether the learned District Judge hearing the application u/s 72 (3) can decide the appeal without appreciating the evidence on record ? (B) Whether the judgment and order passed by the learned District Judge indicates conscious application of mind to the facts and law involved in the appeal ? In my view, there is one more substantial question of law arising in this appeal i. e.:- Whether the learned District Judge could have examined the title of Vitthal Sansthan while deciding a case under Section 22-A of the Bombay Public Trust Act ? 4. The law on this subject is discussed quite elaborately by our Court in various judgments. One such judgment is in the case of Samastha Lad Vanjari Samaj, Ram Mandir Trust by its trustees : (A) Budho Motiram Dhakane and others v. Waman Kisan Sanap and others (1976 Mh.L.J. 806). In this judgment, there is a reference of judgment of Full Bench of this Court in the case of Keki Pestonji Jamadar v. Rodabai Khodadad Merwan Irani (74 BLR 198). The relevant portion of this judgment is quoted below for ready reference : “37. If this then is the correct view of the relevant provisions of the statute under which the Deputy or Assistant Charity Commissioner has to function, then it follows that what the Deputy or the Assistant Charity Commissioner has to decide it whether there is sufficient material before him, whether placed by persons having interest or otherwise, to come to the conclusion that the particular property is the property of the trust. If he has, then he must so decide. And if he so decides, then an appropriate entry must be made in the relevant register and appropriate action will have to be taken for possession and administration of that particular property. 38. The Deputy or the Assistant Charity Commissioner, therefore, must hold the inquiry in the prescribed manner and if he is satisfied that 4 sa475/2000 the property which is claimed on behalf of the trust is the property of the trust, then he must record a finding accordingly. He may even say, if the facts of the case so show, that particular pr9perty is being claimed by a third party adversely to the trust. But as has been held by the Full Bench, it is not for him to adjudicate upon the question of title as such, in the sense that a Civil Court adjudicates a title and gives a judgment declaring the title of a particular person. 39. It is, of course, conceivable that the Deputy or the Assistant Charity Commissioner may come to the conclusion that the particular property claimed on behalf of the trust does not belong to the trust. If he arrives at such a conclusion, then he is merely performing his duty to decide the question (being the third question, as mentioned in the Full Bench judgment) regulated to him as to whether a particular property is (or is not) the property of the trust. If he comes to the conclusion that the particular property is not the property of the trust, then he keeps it out and it does not matter to him as to who has title to such a property, so long as he is satisfied that it is not the property of the trust. 40. On the other hand, he may also come to the conclusion that there is sufficient material before him to show that the particular property of the trust, even though there be a third party who is claiming a title to that very property. 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 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 a 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 decision of the Deputy or the Assistant Charity Commissioner or other authorities under the Act will affect any anterior or superior title or any question as to whether the author of the trust was the lawful owner of the property because all 5 sa475/2000 those questions will be decided in appropriate proceedings by a Civil Court. 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.” 5. Let me now apply this law to the inquiry and the evidence that has come on record in this case. As said above, the revenue record as well as the Gram Panchayat record on the date of application was that the disputed properties belonged to the appellant - Govind Sansthan. It has also come on record that these three properties, mentioned above, are in possession of the appellant - Govind Sansthan. In this back ground, one has to appreciate as to what the respondent - Vitthal Sansthan has to say while opposing the application. They are setting up a hostile title. They are suggesting that the appellant Govind Sansthan is not owner of the disputed three properties. They even have an apparently strong reason for pleading this defence. But the moment such plea in defence is taken the authority under the Act is tempted to examine the prove for the defence. In other words it would fall in trap of examining the title of the adversary to the applicant trust. But as held above when such a plea is taken up the authorities under this Act cannot adjudicate upon the question of title in the sense a Civil Court would adjudicate for giving judgment of declaration of title etc. The learned District Judge erred in this area by entering into discussion as if he was examining the title of respondent – Vitthal Sansthan and giving declaration of title to them. What the learned District Judge ought to have done is that he could have suggested to the respondent Vitthal Sansthan that they should seek declaration of title at appropriate forum i. e. Civil Court because these properties apparently belong to the appellant – trust. The appeal should therefore succeed. 6 sa475/2000 ORDER 1. The impugned judgment of learned District Judge, Jalgaon, dated 31st March, 1999 stands set aside and the judgment of the Assistant Charity Commissioner accepting the change report is revived. 2. Needless to say at bar that the respondent Vitthal Sansthan is entitled to file a Civil Suit for declaration of title. 3. The observations made in this judgment and the judgments of the lower Courts shall not influence the Civil Court while deciding such a suit. ( A.V. NIRGUDE, J. ) SRM/sa/475/2000/2/8/11