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1962 DIGILAW 7 (MP)

BISMILLA SAB MAHBOOB SAB v. HABIB MIYAN AHMAD MIYAN

1962-01-19

S.P.BHARGAVA

body1962
JUDGMENT S.P. Bhargava, J. This second appeal arises out of a suit for declaration and injunction filed by the plaintiff Habib Miyan (respondent) against the present appellants in the Court of the First Civil Judge, Burhanpur. The plaintiff claimed a declaration that defendants Nos. 1 to 5 had no right, title or interest to manage the property in suit as trustees thereof and that they had no right to realise the rent and profits of the properties in suit from defendants Nos. 6 and 7. He further claimed that it may be declared that he was the de facto and de jure mutwalli and manager of the wakf in suit and the wakf properties. Injunction was claimed against the defendants to restrain them from managing the wakf and its properties in their' capacity of alleged trustees and from realising and spending the rents and profits of the wakf properties from defendants No. 6 and 7. The trial Court dismissed the plaintiff's suit. An appeal was taken to the District Court, Nimar, which succeeded. The defendants have, therefore, come up in appeal to this Court. Defendant No. 5, Majhle Sab son of Mahbub Sab, had probably died before the institution of the suit itself and, therefore, his name was deleted from the array of defendants. The properties for the maintenance of which the wakf is alleged to be in existence include an old mosque and tomb known as 'mosque and tomb' of Nawab Kurtewala and an adjoining grave-yard. These properties are situated in mohalla Shed Kuran in Itwara Ward, Burhanpur. They further include a sacred 'mohe-mubarak' which is preserved in a box and kept in one of the two houses described in the plaint. The wakf properties consist of two houses which are also situated in the town of Burhan-pur. The plaintiff urged that he had been managing the wakf property exclusively as mutwalli and manager of the ancestral family wakf and further had been performing the annual 'fetch' of his ancestors who are buried in the tomb and in the adjoining grave-yard and that had also been performing the religious ceremony known as 'khutam' in the mosque annually in the month of Ramzan. The plaintiff clearly stated that ho used to spend the income from both the houses over the aforesaid wakf which is religious and he also used to spend amount out of his own pocket for the purpose of the wakf. The first defendant, Bismillasab, made an application in his capacity of being the working trustee of the public trust, namely, Nawab Kurtewala Mosque and Tomb, Shed Kuran, Itwara Ward, Burhanpur, to the Registrar of Public Trust, Nimar, (Khandwa) for the registration of the trust u/s 4 of the Madhya Pradesh Public Trusts Act, 1951, (hereinafter called the 'Act'). The particulars required by section 4(3) of the Act were mentioned in the application. The application was made over for inquiry to the Additional Deputy Commissioner and the notice for inquiry before him was duly given under rules made in section 5 of the Act. The notice was published in the Madhya Pradesh Gazette, dated 10-7-1954, and it is at page 844 of the said Gazette. No objection was filed with regard to the registration of the trust within the period stated in the notice published in the Gazette for raising objections. The Additional Deputy Commissioner made his report (Ex. P-1) expressing opinion that the facts and particulars mentioned in the application for registration were proved and that the findings in respect of particulars of the trust may be recorded in the register maintained in the office of the Registrar u/s 6 of the Act and be also published on the notice board of the Office of the Registrar. The Registrar accepted the proposal contained in the report by endorsing on the report that the trust be registered according to the proposal made by the Additional Deputy Commissioner. The findings were published on the notice board of the Registrar's office after the entries were made in the register on 3-6-1955. It is common ground that no suit was instituted to have the findings set aside or modified within six months from the date of the publication of the notice under sub-section (1) of section 7 of the Act but the plaintiff instituted the aforesaid suit for declaration and injunction, on 23-4-1957. The trial Court found that as the plaintiff failed to adopt the special remedy which was prescribed u/s 8 of the Act, the findings of the Registrar as recorded in his register of public trusts had become final and conclusive. The trial Court found that as the plaintiff failed to adopt the special remedy which was prescribed u/s 8 of the Act, the findings of the Registrar as recorded in his register of public trusts had become final and conclusive. It held that the plaintiff's suit was barred by time. On merits, it came to the conclusion that the wakf in question was not a public wakf and the wakf properties were the private properties of the plaintiff. The district Judge on appeal came to the conclusion that as the trust in question was not a public trust at all, the provisions contained in the Madhya Pradesh Public Trusts Act, 1951, were not applicable. He held that the order passed by the Registrar was ab initio void and was a complete nullity and, therefore, it was not necessary for the plaintiff to follow the procedure and pursue the special remedy which was prescribed under the Act. On facts, he agreed with the conclusion of the trial Court to the effect that the wakf was a private wakf and the properties attached to it were private properties of the plaintiff. In this view of the case, the first appellate Court passed a decree declaring that the defendants had no right to manage the wakf or its properties as trustees and that the plaintiff was entitled to manage the properties in his own right as manager. He held that section 8 of the Act was not applicable and, therefore, the suit was not governed by six months rule of limitation and was within time. The main question for consideration is whether the Madhya Pradesh Public Trusts Act, 1951, has ousted the jurisdiction of the ordinary civil Courts when a party is alleged to have been aggrieved by any order passed by the Registrar in exercise of the powers conferred under the Act. To appreciate this objection, it would be helpful to notice the scheme of the Act. The preamble says that the Act was being enacted to regulate and to make better provision for the administration of public, religious and charitable trusts in the State. In sections 2(4) and 2(7) of the Act, the definitions of 'public trusts' and 'trustees' are given. Section 4 provides for making an application for the registration of a public trust. The preamble says that the Act was being enacted to regulate and to make better provision for the administration of public, religious and charitable trusts in the State. In sections 2(4) and 2(7) of the Act, the definitions of 'public trusts' and 'trustees' are given. Section 4 provides for making an application for the registration of a public trust. Sub-section (3) mentions the particulars which are required to be set out in the application for registration. Section 5 of the Act contemplates the inquiry which is necessary before registration. It is significant to note that the registrar has to satisfy as to whether the trust is a public trust and whether any property is the property of such trust. Section 6 contemplates that on completion of the inquiry provided for in section 5, the Registrar shall record his findings with reasons therefore as to the matters mentioned in that section. In section 7, provision has been made for the making of entries in the register in accordance with the findings recorded by the Registrar u/s 6 and he is required to publish on the notice-board of his office the entries made in the register. Section 7(2) is important and states that the entries so made shall, subject to the provisions of this Act and subject to any change recorded under any provision of this Act, or rule made thereunder, be final and conclusive. Section 8 provides for institution of a suit within six months from the date of the publication of the notice under sub-section (1) of section 7 of the Act to have the findings set aside or modified, if any working Trustee or person having interest in a public trust or any property found to be the trust property feels aggrieved by any finding. Section 30 lays down that the provisions of the CPC shall apply to all proceedings before the Court in this Act save and so far as they may be inconsistent with anything contained in this Act. Section 34 authorises the Registrar to make inquiry himself or to forward the case for investigation and report to any revenue officer not below the rank of a Deputy Collector. It may be mentioned here that the post of the Additional Deputy Commissioner is of the same rank as that of a Deputy Collector. The scheme of these provisions clearly appears to be, in the first instance? It may be mentioned here that the post of the Additional Deputy Commissioner is of the same rank as that of a Deputy Collector. The scheme of these provisions clearly appears to be, in the first instance? to confer jurisdiction upon the Registrar to make an inquiry, inter alia, relating to the existence of a trust, whether such trust is a public trust and whether any property is the property of such trust. The Act authorises the Registrar to give effect to his findings by making entries in the register prescribed for the purpose and to publish the entries on the notice-board of his office. The decision of the Registrar has been given final and conclusive effect only subject to the decision of a suit which is required to be filed within six months from the date of publication of the entries made in the register on the notice-board of the Registrar's office. The provisions contained in sections 5 to 8 of the Act are in the nature of a complete Code so that any relief which an aggrieved person may claim can be obtained only by way of instituting a suit in the manner required by section 8. We may now refer to some of the important cases. In Ramehandra v. Secretary to State ILR 12 Mad. 105, the Court held that where by an Act of Legislature powers are given to any person for a public purpose from which an individual may receive injury if the mode of redressing the injury is pointed out by the statute, the ordinary jurisdiction of civil Courts is ousted and in case of injury, the party cannot proceed by action. (b) Another significant decision bearing on the point is Iswarananda Bharathi Sioami v. Commissioners II. It. E. Board ILR 54 Mad. 928. In that case, a Division Bench of the Madras High Court after reviewing many cases came to the conclusion that so far as the Hindu Religious Endowment Board was concerned, the finding given by the Board that a particular building was a math or a temple could be agitated by means of an application before the Court and that a suit for declaration under the ordinary law was not maintainable. (c) We may now refer to the case of Raja Vishesiwar v. Province of Bihar ILR 27 Pat. (c) We may now refer to the case of Raja Vishesiwar v. Province of Bihar ILR 27 Pat. 820 where their Lordships were required to consider the effect of certain provisions of the Bihar Sales Tax Act of 1944 and they came to the conclusion that a suit for declaration and injunction u/s 42 of the Specific Relief Act was not maintainable because the plaintiff had a complete remedy under the provisions of that Act itself. (d) In Taraben Baldevdas Parikh Vs. Charity Commissioner, Greater Bombay Region and Others, , the provisions of the Bombay Public Trusts Act, 1950, which bear a close resemblance to the provisions of this Act came for consideration before their Lordships and it was observed :- Now jurisdiction of such amplitude having been conferred under the Act upon the Deputy or Assistant Charity Commissioner or the Charity Commissioner to decide questions set out in section 19 and jurisdiction of the civil Courts having been simultaneously excluded, it would be difficult to hold that the civil Court has jurisdiction to decide the same questions over again in a civil suit. Reliance, however, was sought to be placed upon the terms of section 50 which enables suits relating to public trusts to be filed for certain relief's by the Charity Commissioner or by two or more persons having an interest in the trust and having obtained the consent in writing of the Charity Commissioner. One of the class of such suits is a suit where a declaration is necessary that particular property is property belonging to...to the public trust or whether a direction is required to recover possession of such property or proceeds thereof or for taking accounts of such property from any person including a person holding adversely to the public trust, or where the direction of the Court is deemed necessary for the administration of the Public Trust. In that view of the case, the order passed by the Deputy Charity Commissioner holding that the civil Court had no jurisdiction to decide the question whether the amount in the hands of the trustees was the property of the public trust and the application before him could not be stayed was held to be correct. (e) Further hi The State of Madhya Pradesh Vs. (e) Further hi The State of Madhya Pradesh Vs. Mother Superior Convent School and Another, , it was laid down :- In any event, the existence of a public trust is, in my opinion, the sine qua non of action in respect of temples, 'moths', mosques, churches and wale for societies formed for religious or charitable purposes. If the basic condition, viz., the existence of a public trust, be missing, I do not think that the definition could bring into the mischief of the Act religious and charitable institutions which do not administer any trust property. Indeed this argument is fortified by sections 4 and 5, to which I have already referred, and the nature of the inquiries and the entries to be made as a result of those inquiries in the register of public trusts. In the scheme of the Act, emphasis has everywhere been laid upon public trusts and the word 'trusts' must be deemed in view of the provisions of section 2(1) of the Act to refer to all the matters which the Indian Trusts Act, 1882, indicates. We have to assign to the word 'trust' the meaning as given in the Indian Trusts Act. That Act requires the existence of Trustees, trust properties, and beneficiaries. (f) The decision in Secretary of State v. Mark and Co. ILR 40 Mad. 599 (PC) was also referred to. Their Lordships after discussing the provisions under sections 188 and 191 of the Sea Customs Act and the provisions of the Land Customs Act held that the jurisdiction of civil Courts had been ousted by means of those statutes and sounded a note of caution that the exclusion of jurisdiction of civil Courts could not be readily inferred in the absence of an express provision on the point or a provision by necessary implication. (g) In the decision of the Court of Appeal in R. v. Sfioreditch Assessment Committee, (1910) 2 K B 859, Lord Far/well observed :- No tribunal of inferior jurisdiction can by its own decision finally decide on the question of the existence or extent of such jurisdiction; such question is always subject to review by the High Court, which does not permit the inferior tribunal either to usurp a jurisdiction which it does not possess, whether at all or to the extent claimed, or to refuse to exercise a jurisdiction which it has and ought to exercise. Subjection in this respect to the High Court is a necessary and inseparable incident to all tribunals of limited jurisdiction; for the existence of the limit necessitates an authority to determine and enforce it; it is a contradiction in terms to create a tribunal with limited jurisdiction and unlimited power to determine such limit as its own will and pleasure-such a tribunal would be autocratic, not limited- and it is immaterial whether the decision of the inferior tribunal on the question of the existence or non-existence of its own jurisdiction is founded on law or fact; a Court with jurisdiction confined to the city of London cannot extend such jurisdiction by finding as a fact that Piccadilly Circus is in the ward of Chepe. (h) Lord Esher in The Queen v. The Commissioners for Special Purposes of the income tax (1888) 21 QBD 313 at pp. 319, 320, thus expressed his opinion in a very forceful manner:- When an inferior Court or tribunal or body, which has to exercise the power of deciding fact, is first established by Act of Parliament, the Legislature has to consider what powers it will give that tribunal or body. It nifty in effect, gay that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what, they do may be questioned, and it will be held that they have acted without jurisdiction. But there is authors. state of things which may exist. The Legislature may intrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of fact exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the Legislature are...establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. When the Legislature are...establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned, it is an erroneous Application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because Legislature give them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends; and if they were given jurisdiction so to decide, without any appeal being given, there is no appeal from such exercise of their jurisdiction. (i) A very recent case on the point is one reported hi Patna Municipal Corporation Vs. Ram Bachan Lal, , where is has been observed:- The first typo of cases referred to by Lord Esher in the observations quoted above is the ordinary type in which the jurisdiction of a local authority or a tribunal of limited jurisdiction depends upon the existence of some preliminary or jurisdictional facts. While the tribunal must arrive at its own conclusions on those facts for the purpose of deciding whether it is necessary for it to exorcise the jurisdiction vested in it, its decision on those facts is not final.... The second type of cases envisaged by Lord Esher is that in which the tribunal of limited jurisdiction has not been given jurisdiction to do a certain thing or to pass a certain order but has also been given the power exclusively to decide the facts on which its jurisdiction depends. It is manifest that, in such cases, the decision of the tribunal on the existence of the facts which attract its jurisdiction is also final and IB not open to enquiry by the civil Court.... In my view, on consideration of the principles contained in the rulings discussed above, the position which emerges out of the provisions of sections 7 and 8 of the Act is that the Registrar has been clothed with a very wide jurisdiction to decide the questions set out in section 5 including the question as to whether the trust in question is a public trust and whether any property is the property of such trust. The findings of the Registrar on these questions may be right or wrong but no lack of jurisdiction can be attributed if the finding is wrong. The only remedy of the aggrieved party would be to institute a suit in a civil Court to have such findings set aside or modified according to the requirements of section 8 and as it was not done in the instant case, the plaintiff, on this short ground itself, must necessarily fail. It is also worthy of note that in providing the remedy of suit u/s 8 of the Act, it cannot be within the contemplation of the Legislature to provide for a second suit under the ordinary law before the civil Court. Shri Jakatdar then argued that section 6 of the Act contemplated that the 'Registrar shall record his findings -with reasons therefore' as to the matters mentioned in section 5 and as the Registrar had merely stated that he agreed with the proposal made by the Additional Deputy Commissioner, these mandatory requirements of section 6 were not complied with and his order did not amount to a valid order and was void ab initio. Again, I am unable to agree. Though there is no doubt that it would have been much better if the Registrar had expressed his opinion in so many words that it was a public trust and the properties were the properties pertaining to a public wakf, yet in my view, the endorsement made by him only amounts to his adopting the report which was made by the Additional Deputy Commissioner who had clearly stated in his report that it was a case of a public trust and, therefore, should be regarded as such under the provisions of the Act. The Additional Deputy Commissioner has clearly said in his opinion that the affidavit filed on behalf of the applicant before him clearly showed that it was a public trust and there was no opposition made within the time which was allowed in the notice published in the Madhya Pradesh Gazette inviting objections. All the necessary findings are contained in the report made by the Additional Deputy Commissioner to enable the Registrar to come to a conclusion u/s 6 of the Act. Mere omission to state the reasons for his findings does not make his findings without jurisdiction. All the necessary findings are contained in the report made by the Additional Deputy Commissioner to enable the Registrar to come to a conclusion u/s 6 of the Act. Mere omission to state the reasons for his findings does not make his findings without jurisdiction. There is nothing on record to show that the Registrar passed his orders without directing his mind to the evidence recorded by the Additional Deputy Commissioner. There is no grievance that the affected party was not given a fair opportunity to correct or contradict any relevant or prejudicial material. The delegation of the enquiry does not amount to delegation of powers. In my opinion, the objection, therefore, has no substance and must be rejected. It was next urged by Shri Jakatdar that the period of 30 days which was stated in the notice published in the Gazette for raising objections was not based upon any provision of law and as the rules framed u/s 5 of the Act went beyond the section itself in prescribing that period, the Registrar should have held that the rule was ultra vires and should not have been guided by it and in any case, he should have come to the conclusion that the delay could be condoned because section 30 of the Act clearly attracted the provisions of the CPC which amply empowered the extension of time in these circumstances. The provisions of Order 9 of the CPC were referred to by him as these provisions contemplate extension of time for sufficient or good cause. In my opinion, it is not necessary in the present case to express any opinion on the question as to whether the period of 30 days prescribed by the rule is invalid. Even assuming for the purposes of deciding this point that the Registrar erred in assuming the period of 30 days to be not capable of any extension for any given reason or that he erred in not condoning the delay, the best that can be said in favour of the respondent is that he erred in arriving at this conclusion in his order dated 28-3-1955. The mere fact that the order was wrong does not make it to be without jurisdiction because the tribunal has as much right to decide the question rightly as it had to decide it wrongly. The mere fact that the order was wrong does not make it to be without jurisdiction because the tribunal has as much right to decide the question rightly as it had to decide it wrongly. The only way to challenge the order was by way of institution of a suit u/s 8 of the Act. If that suit was not filed, it does not serve any purpose of the plaintiff now to contend that refusal of the Registrar to extend the period was not based on valid or justifiable grounds. The next question that arises for consideration is one of limitation. I have already stated that: the only correct way for the plaintiff to challenge the effect of the entries! made by the Registrar was to institute a suit within the period of six months prescribed in section 8 of the Act. It is admitted that the suit was instituted much beyond six months. It is also clear from the material on record that the plaintiff had knowledge about the proceedings before the Registrar even before the expiration of six months from the publication of the entries on the notice-board of the office of the Registrar. The plaintiff made his first application (E:s. P-44) raising objections on 18-11-1954 before the Deputy Commissioner. He made another application (Exh. P-45) on 2-2-1955 to the Registrar explaining as to why he was not able to file his objections within one month of the date of publication of the notice in the Madhya Pradesh Gazette. On 28-3-1955, the Registrar ultimately came to the conclusion that the delay in filing the objection could not be condoned and informed the plaintiff about the conclusion he had reached. These proceedings clearly show that the plaintiff was aware from the very beginning that he had to raise objections before the Registrar. In any event, he had knowledge of the application u/s 4 of the Act having been made and the inquiry u/s 5 being started within six months of the Registrar having recorded his findings on the inquiry made by the Additional Deputy Commissioner in the register but he did not take any step to file the suit. In any event, he had knowledge of the application u/s 4 of the Act having been made and the inquiry u/s 5 being started within six months of the Registrar having recorded his findings on the inquiry made by the Additional Deputy Commissioner in the register but he did not take any step to file the suit. Shri Jakatdar argued that his suit was in no sense a suit under the Act to challenge the findings of the Registrar but it was a simple suit for a declaration and consequential relief u/s 42 of the Specific Relief Act. I am, however, unable to agree with the submission made. No amount of dexterity in drafting the pleadings would alter or in any way enlarge the rights of parties and enable them to override the provisions of sections 7 and 8 of the Act and section 9 of the Code of Civil Procedure. Though the plaintiff has avoided to directly seek the relief that the entries made in the register may be set aside or modified it is clear that in essence and substance, he claims that the trust be not held to be a public trust and the properties attached to the trust should not be held to be the properties of a public trust. The purpose of the plaintiff is nothing else but to get rid of the adverse effect of the entries on his rights. The question of declaration and injunction would only arise if it is first found that the Registrar was wrong in holding the trust to be a public trust. It is an accepted principle that pleadings have to be construed by looking to the substance of the plaint and not merely its form. The Registrar on these cardinal points held against the plaintiff. The plaintiff's whole effort in the suit is to have this position dislodged. I may add that if the interpretation desired by Shri Jakatdar is to be given effect to, the provisions contained in the Act with regard to conclusiveness and finality of the entries in section 7 of the Act subject only to the decision of a suit u/s 8 will have little meaning left in them and the whole provision would be rendered nugatory. I am of the view that the suit is governed by six months limitation as prescribed u/s 8 of the Act and it having been instituted much beyond that period, it must be held to be barred by time. In view of my finding, recorded above, that the plaintiff's suit is barred by limitation, it is not necessary to consider the other pleas on merits raised on behalf of the appellant. It was argued at length by Shri Saifi on behalf of the defendant-appellant that both the Courts below came to a wrong conclusion in holding the wakf to be a private wakf but it is not necessary to express any opinion in this aspect of the case. The entries made by the Registrar to the effect that the trust in question is a public trust and the two houses described in the plaint are the properties of this trust must be held to be final and conclusive- It is implicit in the finding that the trust is not a private one. For all the reasons, stated above, the result is that the appeal is allowed. The plaintiff's suit fails and is dismissed with costs. Permission to file Letters Patent Appeal is refused. Final Result : Allowed