BHATT CHIMANLAL RATANJI v. PATEL NANU LADHU — 1978 DIGILAW 89 (GUJ)

N. H. BHATT, J. ( 1 ) THESE five appeals are being disposed of by this common judgment. The details of these appeals are set out below in the tabular form: @@@ high Court District Civil Name of Land S. N. Area appeal No. Court Suit purchaser Appeal No. No. 1 2 3 4 5 _ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ 233 34 184 patel Nanu Out of 532 A. G. Ladhu 7. 00 out of 448/1 A. G. 0. 3 Devpara. 234 33 183 patel Dhiru Out of 532 A. G. Ladhubhai 7. 18 Devpara. 235 31 181 patel Popat 6421 A. G. 4. 26 parshottam daya 236 30 180 patel Narshi 372 A. G. 10. 27 ladhu devpara. 237 32 182 dalwadi Narsi 410/2 A. G. 2. 17 rughnath pansina. _ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ __ _@@@ ( 2 ) THE Deputy Charity Commissioner. Rajkot had held enquiry under sec. 19 of the Bombay Public Trusts Act 1950 The question involved was whether the suit properties mentioned in Col. No. 5 above in the table were trust properties or whether they were the personal properties of the respondent No. 2 in all these appeals Bhatt Bhalchandra Ratanji who happens to be the brother of the plaintiffs-appellants. The Deputy Charity Commissioner by his order dated 31-7-1965 held that these suit properties were the public trust properties belonging to one Haveli Mandir of Limbdi. The above application was contested by Bhalchandra as well as the present appellants his two brothers. The matter ultimately came to be confirmed by this High Court in the first appeal No. 700/70 decided on 25-7-75. ( 3 ) DURING the inquiry before the Deputy Charity Commissioner the three brothers the plaintiffs-appellants and Bhalchandra had contended that the temple in question was of their ownership and the properties in question were their private properties. During the pendency of those proceedings before the Dy. Charity Commissioner the respondent No. 2 Bhalchandra had transferred all those fields to different purchasers who are the contesting defendants as shown in Col. 4 of the above table. During the pendency of those proceedings before the Dy. Charity Commissioner the respondent No. 2 Bhalchandra had transferred all those fields to different purchasers who are the contesting defendants as shown in Col. 4 of the above table. The plaintiffs who were in the management of the temple that came to be registered as a public trust property along with the suit fields then filed these various suits for taking back those fields. They did so obviously in their capacities as trustees. They had impleaded their brother Bhalchandra as a co-defendant. Both the trial court and the District Court dismissed those suits and the matters had therefore come to this High Court by way of present Second Appeals. C. V. Rane J. of this Court by his judgment dated 17/18-9-75 had allowed all those appeals and decreed the plaintiffs suits for possession. The contesting purchasers had therefore preferred various appeals being the Civil Appeal Nos. 707/76 and 1299 to 1302 of 1977 in the Supreme Court. By the judgment dated 20 all those appeals were allowed and these appeals before this High Court were remanded on a limited question. The Supreme Court in this connection has observed as follows:"the Haveli Mandir Limbdi was the owner of the lands which are the subject matter of the present proceedings. The said lands were owned in Barkhali right by the Mandir; that these were owned by the Mandir and not by the private individuals who laid claims to them was established by the adjudication of the charity commissioner in this behalf. However possession of the lands had been transferred under sale-deeds executed by one of the three brothers who claimed private ownership of the lands in question namely Bhalchandra. The Charity Commissioner directed the trustees appointed under the Bombay Public Trust Act 1950 to bring a suit and recover possession of the trust property in the hands of the alienees who happened to be the defendants/appellants. The defendants/appellants raised various questions including adverse possession by their predecessor Bhalchandra. They also raised a question that under the Saurashtra Barkhali Abolition Act 1951 occupancy certificate bad been issued to their predecessor Bhalchandra and that in any event by virtue of that certificate they were entitled to continue in possession as holders of occupancy right. The trial court upheld the plea of adverse possession and dismissed the suit. They also raised a question that under the Saurashtra Barkhali Abolition Act 1951 occupancy certificate bad been issued to their predecessor Bhalchandra and that in any event by virtue of that certificate they were entitled to continue in possession as holders of occupancy right. The trial court upheld the plea of adverse possession and dismissed the suit. Of course it negatived the plea based on the Saurashtra Barkhali Abolition Act. By the time the trustees took up the matter in appeal the major issue was adverse possession with the result that the plea under the occupancy certificate put forward as an alternative defence did not figure prominently or at all at the appellate stage. The appellate court upheld the plea of adverse possession and non-suited the plaintiff. In the High court in second appeal the whole question was reassessed and the plea of adverse possession was negatived. We are fully satisfied that the finding of the High Court on this question is correct. We are also satisfied that the finding of title in favour of the Haveli Mandir by the Charity Commissioner cannot be challenged by the defendants/appellants since it binds their predecessor Bhalchandra". After confirming all other findings the Supreme Court then observed as follows:"even so the High Court did not go into the question as to whether any rights enured to the defendants under the occupancy certificate obtained by Bhalchandra which presumably was alienated in favour of the defendants/appellants. Probably this question was not debated prominently before the High Court and went by default. Having heard counsels on both sides se think that this point merits consideration. While we express no opinion whatever on the soundness or otherwise of the plea based upon occupancy certificate issued under sec. 7 (3) of the Act it becomes necessary to decide what impact this certificate will have on the relief of possession claimed by the plaintiffs/respondents. We think that the justice of the case demands that the High Court should go into this questions and record a finding thereon and thereupon dispose of the appeal. We therefore set aside the decree for possession passed by the High Court but while confirming all the findings recorded by it direct it to go into the limited plea based on the occupancy certificate issued under sec. 7 (4) of the Barkhali Abolition Act. We therefore set aside the decree for possession passed by the High Court but while confirming all the findings recorded by it direct it to go into the limited plea based on the occupancy certificate issued under sec. 7 (4) of the Barkhali Abolition Act. 1951 and its effect upon the relief of possession claimed by the plaintiffs. The main aspect of the question turning on the provisions of the Act may have to be investigated and pronounced upon. After deciding this issue the High Court will dispose of the appeal. The parties will bear their costs in this court". In view of the remand by the Supreme Court these appeals of 1971 are revived and are being dealt with and disposed of by me today. ( 4 ) AS directed by the Supreme Court only question that is to be now decided is whether any rights enure to the defendants under the occupancy certificates obtained by Bhalchandra in respect of lands which presumably were alienated in favour of the defendants (appellants in the Supreme Court) and respondent-purchasers before me. ( 5 ) NOW one thing is to be very clearly noted that these properties were with Bhalchandra and his two brothers because they were associated with the temple. The Supreme Court itself has found as a matter of fact that the Haveli Mandir Limbdi was the owner of the lands. It is also established that the three brothers treated the temple as well as the lands annexed to the temple as their personal properties. Then the three brothers purported to partition those lands and Bhalchandra on partition had got these present suit fields. They were admittedly the Barkhalidas meaning as persons holding the tenure as Barkhalidar granted as such. The said Saurashtra Barkhali Abolition Act 1951 had come into force on 15-8-1951. ( 6 ) IN the erstwhile region of Saurashtra there were many princely States. Good part of the agricultural land was held by a class of persons known as Barkhalidas who in their turn leased out some of their lands to their tenants. They were in a sense intermediaries. It was the policy of the Legislature to eliminate these intermediaries and establish a direct relation between the State as the supreme owner of all lands and the de facto cultivators. This is precisely the aim of all Abolition Acts. They were in a sense intermediaries. It was the policy of the Legislature to eliminate these intermediaries and establish a direct relation between the State as the supreme owner of all lands and the de facto cultivators. This is precisely the aim of all Abolition Acts. Because of the peculiar circumstances then prevailing in the region of Saurashtra a sort of an equitable viamedia was mooted out. Those Barkhalidars under the Saurashtra Barkhali Abolition Act were given certain rights to have certain lands as occupants while rest of the lands in actual cultivation of the tenants were given to tenants as occupants. This is evident from secs. 4 5 6 8 and 10 of the Act. As said above the three brothers had partitioned the lands belonging to the temple because they claimed the temple itself to be their personal property. So about the year 1951-52 Bhalchandra was recognised as a Barkhalidar. He applied under sec. 6 of the Act for allotment of the land under that Act and after some inquiry by the Mamlatdar under sec. 7 of the Act he got occupancy certificates in respect of the suit lands. Those certificates are Exs. 28 and 29 on the record. The certificate Ex. 28 is dated 12-12-53 and is in respect of all lands situated within the village of Devpara. The lands in the second appeals Nos. 236 and 233 of 1971 are the lands of that village. Ex. 29 dated 22 relates to the lands situated in village Pansina and the lands in dispute in the Second Appeals Nos. 234 235 and 237 of 1971 are situated in the sim of this village. ( 7 ) THE moot question that arises is: what is the effect of the intervention of the Saurashtra Barkhali Abolition Act on the original character of the property in the hand of Bhalchandra as the trust property ? The history of the land as given above shows that Bhalchandra got these lands as a barkhalidar because he claimed to hold the lands as such in his capacity as the owner of the temple. In other words he was the barkhalidar of the lands in question because he was associated with the temple as a priest. It is immaterial whether he was declared to be as one of the trustees of the temple or not in an inquiry under sec. 19 of the Act. In other words he was the barkhalidar of the lands in question because he was associated with the temple as a priest. It is immaterial whether he was declared to be as one of the trustees of the temple or not in an inquiry under sec. 19 of the Act. The fact remains that as a man associated with the temple and not as its absolute owner but as a person whose family members were the trustees of the temple and not its owners he claimed and got lands. It has to be therefore held that the property was under his barkhali tenure right not in his individual capacity but in his capacity as the person associated with the temple. He had no independent existence separate from that of the temple. If all lands were with Bhalchandra and his brothers as the persons associated with the temple and they were barkhalidar only because of that it is obvious that they got the occupancy rights also in that very capacity and not in their independent capacity. The occupancy conferred on Bhalchandra therefore was because he was barkhalidar and therefore his occupancy rights are to be treated as conferred on him in his capacity as the man or a person associated with the management of the temple. ( 8 ) MR. Shah the learned advocate for the respondents-purchasers however urged that no civil court had got a right to deal with any question which by that Act is required to be dealt with by the Mamlatdar the Collector or the Tribunal or by the Government in exercise of the powers under the Act. By recording the above decision I do not challenge the grant of occupancy certificate. I am only interpreting the same. I say that Bhalchandra was an occupant because he was a person associated with the management of the trust properties. Mr. Shah however urged that in the certificates it is not so mentioned that Bhalchandra was being given the occupancy rights in his capacity as a person associated with the management of the temple. That was not the query before the Mamlatdar. Say a head of the family is conferred occupancy rights by the Mamlatdar under the Act. Would he be able to claim that occupancy rights are conferred on him in his individual capacity and not for the benefit of the family ? That was not the query before the Mamlatdar. Say a head of the family is conferred occupancy rights by the Mamlatdar under the Act. Would he be able to claim that occupancy rights are conferred on him in his individual capacity and not for the benefit of the family ? The Division Bench of this High Court had an occasion to consider this point and I was a party to that judgment. It was a case under the Bombay Bhagdari and Narvadari Tenure Abolition Act. It is the case of CHHOTALAL SOMABHAI AND OTHERS. V. PUNJABHAI MITHABHAI AND OTHERS. While deciding that First Appeal No. 562 of 1964 the Division Bench held that an occupancy right conferred on a member of a joint Hindu family enures for the benefit of the joint Hindu family and is not to be interpreted as an occupancy certificate granted to that man exclusively. The same principle will apply to this case also. On the same analogy I hold that the occupancy certificate that was granted to Bhalchandra was granted to him in his capacity as a man associated with the temple and for the benefit of the temple. In other words the properties with the Bhalchandra were not with him in his individual capacity but were the properties in his capacity as a man associated with the temple. In other words they were the trust properties. The Dy. Charity Commissioners conclusion therefore does not stand in any way vitiated or varied on the ground of the intervention of the Saurashtra Barkhali Abolition Act 1951 In this view of the matter all these appeals stand allowed. The decrees of the courts below are set aside. All the suits are decreed in favour of the plaintiffs as trustees of the Haveli Mandir Limbdi and for the benefit of the said temple. The defendants are directed to surrender possession of the suit fields to the plaintiffs. The plaintiffs are also entitled to recover mesne profits of the suit fields from the defendants concerned from the dates of the respective suits. An enquiry is therefore directed to be made for determining the mesne profits of the suit fields from the dates of the suits till the point of time specified in Order 20 Rule 12 (c) of the Code of Civil Procedure. The defendants-respondents should pay costs of the plaintiffs-appellants throughout and bear their own. .