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2005 DIGILAW 2990 (RAJ)

Sharad Kumar v. Raghuveer Singh

2005-11-16

S.N.JHA

body2005
Judgment S.N. Jha, CJ.-This second appeal by the plaintiff is directed against the decision of the Additional District Judge, Abu Road District Sirohi in Civil Appeal No. 13/2002 affirming the decision of the Civil Judge (Senior Division), Mount Abu rejecting the plaint in terms of Order-7, Rule-11 of the Civil Procedure Code. The order rejecting the plaint amounts to decree under Section 2(2) of the Code and accordingly the appellant preferred appeal in the District Court which was dismissed by the Additional District Judge, as mentioned above. .2. The appellant filed suit for declaration and permanent injunction in respect of three temples known as Shri Adhar Devi, Kuwari Kanya and Shri Achleshwar Mahadev, Achalgarh claiming hereditary right to participate in the management of the temple as trustee and right to worship. The Courts below found that the suit was barred under Section 73 of the Rajasthan Public Trusts Act, 1959 (in short the Act) and accordingly rejected the plaint in terms of Clause (d) of Order-7 Rule-11 of the Civil Procedure Code. Under Clause (d) of Order-7 Rule-11, the plaint “shall be rejected where the suit appears from the statement in the plaint to be barred by any law.” Section 73 of the Act provides:- .“Bar of jurisdiction-Save as expressly provided in this Act, no civil Court shall have jurisdiction to decide or deal with any question which is by or under this Act to be decided or dealt with by any officer or authority under this Act or in respect of which the decision or order of such officer or authority has been made final and conclusive.” 3. The only point for consideration is whether the subject matter of the suit falls within the purview of the Act so as to attract the provisions of Section 73. The relevant provisions of the Act may be noticed as under .4. Section 17 of the Act provides for registration of public trusts by the Assistant Devasthan Commissioner (briefly mentioned as Assistant Commissioner) appointed under Section 8 of the Act. Sub-section (7) of Section 17 provides for appeal to the Commissioner. Subject to the appellate decision, the order of the Assistant Commissioner is final. Section 17 of the Act provides for registration of public trusts by the Assistant Devasthan Commissioner (briefly mentioned as Assistant Commissioner) appointed under Section 8 of the Act. Sub-section (7) of Section 17 provides for appeal to the Commissioner. Subject to the appellate decision, the order of the Assistant Commissioner is final. Section 18 of the Act provides that the inquiry for the purpose of Section 17 shall be made in the prescribed manner for ascertaining:- .(i) whether a trust exists and whether such trust is a public trust; .(ii) whether any property is the property of such trust; (iii) whether the whole or any substantial portion of the subject matter of the trust is situate within his jurisdiction; .(iv) the names and addresses of the working trustee and the manager of such trust; .(v) the mode of succession to the office of the trustee of such trust; .(vi) the origin, nature and object of such trust; (vii) the amount of gross average annual income and expenditure of such trust; and (viii) the correctness or otherwise of any other particulars furnished under Sub-section(4) of Section 17. Under Section 19 of the Act, the Assistant Commissioner is required to record his findings alongwith reasons, therefore, as to the matters mentioned in Section 18, referred to above. Section 20 again provides for appeal by any working trustee or person having interest in a public trust or in any property found to be trust property against findings of the Assistant Commissioner to the Commissioner, who may set-aside or modify such findings. Under Section 21 of the Act, the Assistant Commissioner is required to make entries in the Register of public trusts maintained under Section 16 (2) of the Act in accordance with the findings recorded by him under Section 19 or, if any appeal has been filed under Section 20 before the Commissioner, in accordance with the decision of the Commissioner on such appeal. Sub-section (2) of Section 21 provides that the entries so made shall, subject to the other provisions of the Act and subject to any change recorded under any provision of the Act or a rule made thereunder, be final and conclusive. Sub-section (2) of Section 21 provides that the entries so made shall, subject to the other provisions of the Act and subject to any change recorded under any provision of the Act or a rule made thereunder, be final and conclusive. Section 22 provides that any working trustee having interest in the public trust or in any other property found to be trust property aggrieved by any entry made under Section 21 may, within six months from the date of the publication thereof , institute a suit in a civil Court to have such entry cancelled or modified and subject to decision in the suit, the Assistant Commissioner is required to correct the entries made in the Register. .5. Section 38 of the Act empowers the Assistant Commissioner on the application of any person having interest in the public trust or on being otherwise satisfied after raking such inquiry as he thinks necessary that - .(a) the original objection of the public trust has failed; .(b) the trust property is not being properly managed or administered; or .(c) the direction of the Court is necessary for the administration of the public trust, to direct the working trustee or any other trustee or person having interest in the public trust after giving the working trustee an opportunity of being heard to apply to the Court for directions within such time not exceeding thirty days. In the event of failure of the working trustee or any other trustee or any other person having interest in the trust to make such application or in case of unavailability of any trustee of the public trust, where the Assistant Commissioner considers it expedient to do so, he may himself make an application to the Court seeking directions as mentioned in Sub-section (1). Section 39 provides for application to the Commissioner if the Assistant Commissioner rejects the application under Section 38(1) or fails or refuses to make an application to the Court himself under Section 38(2). The Commissioner on such application may, after giving the working trustee a reasonable opportunity of being heard, set-aside the order of the Assistant, if any, and require him to apply to the Court himself for directions. Subject to the orders of the Commissioner, all orders passed by the Assistant Commissioner under Section 38 are final. The Commissioner on such application may, after giving the working trustee a reasonable opportunity of being heard, set-aside the order of the Assistant, if any, and require him to apply to the Court himself for directions. Subject to the orders of the Commissioner, all orders passed by the Assistant Commissioner under Section 38 are final. Section 40 provides that on receipt of an application made under or in pursuance of Section 38 or Section 39, the Court shall make or cause to be made such inquiry into the case as it deems necessary and pass such orders thereon as it may consider appropriate. While exercising the powers, the Court, besides other powers, may make an order for- .(a) removing any trustee; .(b) appointing a new trustee; .(c) declaring what portion of the trust property or of the interest therein shall be allocated to any particular object of the trust; .(d) providing a scheme of management of the trust property; .(e) directing how the funds of a public trust whose original object has failed shall be spent, having due regard to the object for which the trust was created; .(f) issuing such other direction as the nature of the case may required; Under Sub-section (3) any order passed by the Court under Sub-section (2) is deemed to be a decree of such Court and appeal lies therefrom to the High Court. 6. From the aforementioned provisions, it is manifest that the Act provides for a complete mechanism for registration of public trusts and matters ancillary or incidental thereto. 7. Adverting to the instant case, it is not in dispute that the temples in question are registered public trust. Under Section 73 of the Act, as seen above, no civil Court has jurisdiction to decide or deal with any question which is by or under the Act to be decided or dealt with by any officer or authority under the Act or in respect of which the decision or order of such officer or authority has been made final and conclusive. I have no manner of doubt that the suit has been instituted, in effect and substance, challenging the entry in the Register of the Public Trusts which cannot be adjudicated upon by civil suit save in the manner and within the period prescribed under Section 22 of the Act. I have no manner of doubt that the suit has been instituted, in effect and substance, challenging the entry in the Register of the Public Trusts which cannot be adjudicated upon by civil suit save in the manner and within the period prescribed under Section 22 of the Act. It is relevant to mention here that Section 44 of the Act excludes the applicability of Sections 92 and 93 of the CPC and, therefore, the suit could not be entertained as representative suit under Section 92 of the Code. As regards, the submission of the Counsel that the appellant had also sought a declaration of his right to worship, it is true that such a relief does not fall within the ambit of the aforementioned provisions but it is well settled that nature of the suit has to be determined on reading of the plaint as a whole and not on the basis of relief sought. So read, the fact that the appellant also prayed for declaration of right to worship does not take the matter out of the pale of Section 73 read with the corresponding provisions of the Act. The suit was filed basically seeking a declaration of right to participate in the management of the temples as a trustee - a matter covered by the Act. 8. In the above premises, I find no error in the decisions of the Courts below rejecting the plaint under Order-7, Rule 11(d) of the Civil Procedure Code as barred by Section 73 of the Public Trusts Act. 9. Consequently, the appeal stands dismissed with no order as to costs.