JUDGMENT 1. Both these Second Appeals arise out of a common order delivered on 05.08.2004 by the Additional District Judge, Achalpur in Misc. Civil Application Nos. 18/2000 and 19/2000. Both Second Appeals have been admitted on same date, but with different questions of law. 2. The facts are not very much in dispute between the parties. Appellant Shriram Mandir Sansthan (hereinafter referred to as the Sansthanî for short) owns immovable properties at village Umri, Itbarpur, Tahsil Daryapur, District Amravati. The dispute is in relation to 20 Gunthas of land from field survey No.5 belonging to the Sansthan and the claim of respondents for registration of Viyogi Maharaj Ashram (hereinafter referred to as ìthe Ashramî for short) as an independent Trust. Admittedly the said field survey No.5 is adjacent to River and additional land [mentioned as Wadhava] has become available in the vicinity. After some dispute the said additional land created by shifting of river bed has been held to be of the Sansthan by the Revenue Authorities. The respondents in both these Appeals claim to be the Trustees of the Ashram. It is admitted position that there are various Temples, Well and Dharmshala on the said 20 Gunthas land and additional land. As this portion was landlocked, Sansthan has also made available a piece of land about 16 feet in width and 500 feet in length for use as approach to these temples, well etc. A pucca road has been constructed on this portion by the Government for the use of the visitors & disciples of the Ashram. 3. On 03.05.1993 the present appellants filed Change Report No. 367/1993 before the Assistant Charity Commissioner for recording immovable properties standing on 20 guntha land & wadhava in Public Trust Register as belonging to the Sansthan. On 26.11.1993 the respondents filed application under section 19 of the Bombay Public Trust Act for registration of Ashram as a Public Trust with very same properties. On 20.07.1996 the Assistant Charity Commissioner accepted the Change Report No. 367/1993 and recorded these immovable properties in the name of the Sansthan. In so far as the claim in Enquiry No. 922/1993 is concerned, it was rejected by the same order after concluding that the Ashram had no independent existence or entity. The respondents then filed two appeals i.e. Appeal Nos. In so far as the claim in Enquiry No. 922/1993 is concerned, it was rejected by the same order after concluding that the Ashram had no independent existence or entity. The respondents then filed two appeals i.e. Appeal Nos. 36 and 37 of 1996 under Section 70 of the Bombay Public Trust Act, and those appeals were allowed by common judgment dated 04.05.2000 by the Joint Charity Commissioner, Nagpur. The Joint Charity Commissioner held that the immovable properties in 20 Gunthas of land from survey No.5 or in additional land were not of Sansthan and in 1958 the Sansthan had passed a resolution and permitted the Ashram to use that portion of land. It was also found that since 1958 no objection was raised by the Sansthan or anybody till filing of the Change report in 1993. This judgment was questioned by the Sansthan by filing further proceedings under Section 72 of the Bombay Public Trust Act before the Additional District Judge at Achalpur. The proceedings were registered as Misc. Application Nos. 18 and 19 of 2000 and by common judgment dated 05.04,.2004 the said applications have been dismissed. Thereafter, these two Appeals have been filed. 4. Second Appeal No. 621/2004 has been admitted on 09.03.2005 by formulating the following two questions as substantial questions of law : (i) Whether the Lower Appellate Court misconstrued the contents of Resolution No.4 dated 2.5.1958 by holding that the appellant Trust donated the land of 20 Gunthas in Survey No.5 ? (ii) Whether the Lower Appellate Court could draw adverse inference against the appellant for non examination of the President of the appellant Trust when there was other evidence available 5. Second Appeal No. 15/2005 has also been admitted on the very same date by framing the only following question as substantial question of law. Whether the Lower Appellate Courts were justified in permitting registration of Shri Viyogi Maharaj Ashram (Shri Gopeshwar Sansthan) Umri, Itbarpur, Tahsil Daryapur, District Amravati byholding that there was no objection by the appellant Trust and without satisfying themselves about the statutory requirements ? 6. In this background I have heard Shri A.S. Jaiswal with Shri Lahabar, Advocates for Appellant Sansthan, Shri R.L. Khapre, with Shri Paliwal Advocates for Respondent nos. 1 and 2. 7. 6. In this background I have heard Shri A.S. Jaiswal with Shri Lahabar, Advocates for Appellant Sansthan, Shri R.L. Khapre, with Shri Paliwal Advocates for Respondent nos. 1 and 2. 7. Advocate Shri Jaiswal, has pointed out that the conclusion of gift of 20 Gunthas of land out of survey No.5 by the Sansthan to the Ashram is not only misconceived on facts, but also legally incorrect. He states that the original of resolution dated 02.05.1958 has not been produced on record before the lower Authorities and there is no evidence that such resolution was at any time passed or implemented. He contends that even if passing of such resolution is presumed, evidence that, it was further acted upon ought to have been brought on record by the respondents and as such evidence has not been brought on record, reliance upon the said resolution dated 02.05.1958 is erroneous. He also invites attention to the provisions of Section 14 of the Madhya Paradesh Public Trust Act, 1951, to contend that the Sansthan could not have transferred any land to the Ashram/to respondents without prior permission of the Registrar. He has relied upon the judgment in the case of Mannalal Khetan etc. .vrs. Kedar Nath Khetan and others ( AIR 1977 SC 536 ), to point out the significance of requirement of this previous sanction and he further urges that non compliance with section 14 or its effect is not addressed to either by the Joint Charity Commissioner or by the Additional District Judge. He contends that the resolution therefore, could not have the effect of transferring the land of Sansthan to the Ashram and hence, the impugned judgments are unsustainable. He further states that even if it is presumed that Temples or Well or Dharmshala on such land are constructed by the Ashram, the Ashram cannot become owner thereof. Lastly he argues that as Ashram has no immovable properties of its own, it cannot be registered as Public Trust at all. He invites attention to the definition of Public Trust as contained in Section 2[13] of the Bombay Public Trust Act, read with Section 2[20], and argues that as word ìTrustî is not defined in Bombay Public Trust Act, the recourse needs to be taken of Section 3 of the Indian Trust Act, 1882. He invites attention to the definition of Public Trust as contained in Section 2[13] of the Bombay Public Trust Act, read with Section 2[20], and argues that as word ìTrustî is not defined in Bombay Public Trust Act, the recourse needs to be taken of Section 3 of the Indian Trust Act, 1882. He points out that as per said definition Trust is an obligation annexed to the ownership of the property and arising out of the confidence reposed in and accepted by the owner. The trust without immovable property cannot be even contemplated. As Ashram does not own any property, it cannot be registered as a Public Trust at all. He states that even this aspect is lost sight of by the Joint Charity Commissioner and also by the Additional District Judge. In order to show that user simplicitor as such is not sufficient to constitute a Trust in present circumstances, he has invited attention to all the judgments of lower court/authorities. He states that Assistant Charity Commissioner has elaborately considered the evidence and has found that there was no independent management for the Ashram and the land continued to belong to the Sansthan. This elaborate discussion of evidence is not considered or evaluated either by the Joint Charity Commissioner in appeal or then by the Additional District Judge in Misc. Civil Applications & thus there is failure to exercise the jurisdiction in accordance with law. 8. Advocate Shri Khapre, in reply has contended that the opposition to registration of Ashram as Public Trust by the present appellants/Sansthan is itself barred by principles of estoppel. He invites attention to the Audit Report dt. 30/12/1991 of the Sansthan to show that the observations of Auditor in the said report made Sansthan to move Change Report No.363/1993. He further states that the resolution dated 2.5.1958 clearly accepts Ashram as separate entity and after passing of the resolution for about 35 years, the Sansthan never raised any objection about the rights of the Ashram. He states that all the revenue records in relation to 20 Gunthas of land from gut/survey No.5 and additional land show uninterrupted possession of Ashram. He states that all the revenue records in relation to 20 Gunthas of land from gut/survey No.5 and additional land show uninterrupted possession of Ashram. He further invites attention to written statement filed by the Sansthan in Enquiry No. 922/1993 to show that the Sansthan did not object to registration of the Trust and therefore, according to him the arguments as advanced before this Court are now not available as the principle of estoppel must be applied. He further states that the Sansthan has failed to establish its ownership of structures like Temples, Well, Dharmshala which belong to Ashram. He relies upon the provisions of Section 60[b] of the Easements Act, 1882 and the judgment of Hon'ble Apex Court in the matter of Ram Sarup Gupta .vrs. Bishun Narain Inter College and others ( AIR 1987 SC 1242 ), to show that even if, in such circumstances, the licence in favour of the Ashram is presumed, the licence becomes irrevocable. He points out that Section 14 of the Madhya Pradesh Public Trust Act, 1951 is not applicable in the present circumstances, because there is no transfer of land from the Sansthan to the Ashram, but it is only a grant of licence. According to him, a Public Trust contemplated under section 2[13] of the Bombay Public Trust Act, need not be a Trust as contemplated by Section 3 of the Indian Trust Act, and the ownership of land beneath the structure is not sine-qua-non. He relies upon the various judgment like in the case of (1) The Official Trustee of West Bengal .vrs. West Bengal, Calcutta ( AIR 1974 SC 1355 ); (2) Homi Nariman Bhiwandiwala, .vrs. The Zoroastrian Cooperative Credit Bank Ltd. (AIR 2001 Bombay 267); 11 (3)Shrimani Gurudwara Prabhandak Committee .vrs. Shri Som Nath Dass and others ( AIR 2000 SC 1421 ) and (4) Thayarammal (Dead) By L.R. .vrs. Kanakammal and others ( AIR 2005 SC 1588 ), to show that the artificial person like Deity have also been accepted as legal persons by law in this Country and hence the interpretation of obligations annexed to ownership by appellants or insistence thereupon is misconceived. 9. He points out that gut No.5 was with one protected tenant and the Sansthan could not have recovered its possession and could not have put it to use for the purpose of the Sansthan. 9. He points out that gut No.5 was with one protected tenant and the Sansthan could not have recovered its possession and could not have put it to use for the purpose of the Sansthan. Because of faith in & holy influence of Viyogi Maharaj, the said protected tenant became his disciple & parted with 20 Gunthas of land to form Gopeshwar Sansthan i.e. the Ashram and thus land came to Ashram. He states that in view of these developments, income from said 20 Gunthas of land cannot be used for Sansthan and is being used for other religious charitable purposes, therefore doctrine of Cy pres applies and he places reliance upon the judgment in the case of Abid Hatim Merchant .vrs. Janab Salebhai Saheb Shafiuddin and others ( AIR 2000 SC 899 ) for this purpose. According to him, the purpose to which the lands are put by Ashram is also of religious charitable purposes and hence independent registration needs to be given to Ashram as public trust. 10. Lastly it is argued by him that a change report No. 368/1993 was filed by the appellant / Sansthan for getting certain movable properties entered as its own properties and that change report was rejected by the Joint Charity Commissioner in appeal No. 1/1994 on 23.09.1995. Sansthan then filed Misc. Civil Appeal No.16/1996 before the Additional District Judge, Achalpur but that appeal was dismissed on 13.07.1999. He states that thus the movable properties have been held to be belonging to Ashram and not to the Sansthan and those findings have attained finality as after the order of Additional District Judge no further proceedings were filed by the Sansthan. He therefore contends that the independent existence of the Sansthan and its ownership of movable properties is already on record, hence the present arguments and contentions are barred by principles of res judicata. He argues that as superstructures belong to Ashram, ownership of any other immovable property i.e. land beneath superstructures is not at all necessary and it's irrevocable licence in favour of Ashram is more than sufficient in the eye of law. According to him in both these Appeals no substantial questions arise and Appeals therefore needs to be dismissed. 11. Advocate Shri Jaiswal in his brief reply has stated that, reliance upon various judgments for showing recognition to artificial person by law is totally misconceived in present facts. According to him in both these Appeals no substantial questions arise and Appeals therefore needs to be dismissed. 11. Advocate Shri Jaiswal in his brief reply has stated that, reliance upon various judgments for showing recognition to artificial person by law is totally misconceived in present facts. He argues that, the view reached is in facts of those cases and he further states that in Enquiry No. 368/1993, there is no finding that the movable property involved in dispute there was belonging to the Ashram. He further points out that the resolution dated 2.5.1958 does not contemplate any licence and it speaks of gift, but there is no gift deed and there is no contract of licence. He relies upon the provisions of Section 17[1][b] of the Registration Act, 1908 to show that, if such licence or gift deed existed, it could not have become legal and binding unless and until it was duly registered. He states that as these material aspects are lost sight of by the Courts below the substantial questions of law as formulated need to be answered in favour of the appellant / Sansthan. 12. The consideration by Assistant Charity Commissioner in judgment dated 20.07.1996 is in relation to Enquiry No. 922/1993 and change report No.367/1993. The points for determination are framed by the said authority in paragraph nos. 12 and 13 of the judgment and in paragraph No.20 it framed three sub-points for adjudication. Those subpoints are - (1) Whether Field survey No.5 belongs to Shri Ram Mandir Sansthan ? (2) Is it true that 20 Gunthas of land out of field survey No.5 was donated by Shri Ram Mandir Sansthan to Gopeshwar Sansthan ? (3) Who constructed the temples in field survey No.5 ? 13. In view of the argument advanced before me, it is apparent that the ownership of Sansthan of survey No.5 or then of 20 Gunthas of land thereof or of Wadhava land, is not in dispute. The Assistant Charity Commissioner in paragraph No.23 has also concluded that field survey No.5 belongs to Sansthan. In paragraph No.28 the said Authority has found that the witness Shri Falke, examined by the Sansthan observed total silence about the grant of approximately 16 feet x 500 sq. ft. long road on 15.5.1972. The Assistant Charity Commissioner in paragraph No.23 has also concluded that field survey No.5 belongs to Sansthan. In paragraph No.28 the said Authority has found that the witness Shri Falke, examined by the Sansthan observed total silence about the grant of approximately 16 feet x 500 sq. ft. long road on 15.5.1972. In relation to resolution dated 2.5.1958 about donation of 20 Gunthas of land, the said Authority found that the Sansthan did not place on record original proceeding book and in paragraph No.30 the Authority has made reference to the order dated 11.11.1960 passed by the Sub Divisional Officer, Daryapur which recorded that Sarpanch of Sansthan wanted to grant 20 Gunthas of land from field survey No.5 to Ashram and as Ashram was not registered as Public Trust, such permission could not be granted. In paragraph No.31 the Authority recorded that, that resolution allegedly passed in 1958 was not legal as there was no proper permission of competent authority and no gift deed was brought on record recording this donation of 20 gunthas of land. In paragraph No.32 onwards it has considered the question of construction of superstructures and from the arguments reproduced above and questions formulated, again it is clear that there is no dispute about it before me. However, in paragraph No.37 the Authority has mentioned cross examination of Shri Falke, examined by the Sansthan and Shri Falke accepted that Sansthan had no accounts about receipts and expenditure of those temples. The Authority concluded that this evidence demonstrated that the structure constructed in said 20 gunthas of land and wadhava were built from amounts received from public. It has in paragraph No.39 given a table mentioning the specific structure and against it the persons who constructed it, have been mentioned. In paragraph No.41 it found that the temples and 9 structures mentioned by it are constructed by villagers from their contributions. It also found that the respondents in these Second Appeals who were applicants in Enquiry No. 922/1993 did not place on record any income and expenditure account regarding construction of temples by them, and it further found that there was no evidence to show that after construction, those temples or structures were donated to Ashram by the persons constructing it. It also found that the respondents in these Second Appeals who were applicants in Enquiry No. 922/1993 did not place on record any income and expenditure account regarding construction of temples by them, and it further found that there was no evidence to show that after construction, those temples or structures were donated to Ashram by the persons constructing it. At the end of paragraph No.42 it concluded that reasonable conclusion possible was that temples and other structures mentioned in paragraph 1 of change report No.367/1993 were built from public donations and contributions. In paragraph No.43, it has concluded that field survey No.5 as well as wadhava is owned by the Sansthan and alleged donation of 20 gunthas of land was not proper. The claim of Ashram that those properties belonged to it, was therefore not accepted. 14. After this, from paragraph No.45 onwards the Authority has taken into account the material brought on record by the parties to find out who were administering the affairs of the temples/structures constructed in field survey No.5. It found that the claim of the present respondents about holding of meeting by villagers on 5.1.1983 or about election of 15 persons for managing the affairs of the Ashram was not substantiated. It found that the version of Shri T.B. Lohiya, who was examined by the objectors to oppose Enquiry No.367/1993 and of Anna Harne [present respondent No.2] were mutually contradictory. It further found that names of 15 persons disclosed orally were different than the names of persons mentioned in the application for registration in Enquiry No.922/1993. It has also mentioned the names which do not figure in Exh.1 and it further noticed that there was no other resolution except resolution dated 5.1.1983 on which the respondents were placing reliance to point out the persons entrusted with the obligations to administer the affairs of the Ashram. It found that no accounts were maintained from 1958 to 1978 and witness examined by the respondents namely Shri Heda admitted in cross examination that there was no administration and therefore the authority concluded that the persons whose names were disclosed in the application were not managing the administration of the Ashram. It also found that Shri Heda, accepted that proceeding book, cash book of Ashram was not maintained even from the date of application. It also found that Shri Heda, accepted that proceeding book, cash book of Ashram was not maintained even from the date of application. Shri Lohiya, accepted that no meeting was held from 1960 till 5.1.1983 and there was no income during that period, and hence accounts were not maintained. He also accepted that no meeting of any Panch Committee was held from 5.1.1983 onwards and hence there was no question of maintaining either notice book or proceeding book thereafter. In paragraph No.52 it found that the witness for Sansthan Shri Lakhe stated that thee was no other managing committee for Ashram and the affairs were being managed by the Trustees of Shri Ram Mandir Sansthan. He also stated that accounts of the said temple were also maintained by the Sansthan and the offering boxed in various temples of Ashram and residential place of Viyogi Maharaj, were maintained and kept by the Sansthan. It is also found that in cross examination Shri Falke stated that at that time Shri Ram Sansthan was having custody of offering boxes. It also recorded that this testimony of Shri Falke was not seriously challenged by the applicants of Enquiry No. 922/1993 i.e. the present respondents. In paragraph No.53, the said Authority has considered the evidence about holding of various religious ceremonies like Jayanti Utsav, Pragatdin Utsav and found that the expenditure therefor was incurred from the donations received from public and out of the amount collected in offering boxes of the Sansthan. It also found that the reporting trustee of Sansthan placed certain pamphlets [Exh.28 to 35] to show that they were celebrating these programs of Ashram/Viyogi Maharaj. Two permissions obtained by the Sansthan for holding the festivals vide Exh.36 and 37 were also looked into by the said Authority. It found that Shri Falke also deposed that when thefts were committed on 9.2.1993 and 17.3.1993 and offering boxes at gut No.5/wadhava were broken, the Trustees of Sansthan lodged report to police vide Exh.39 and 40. It further found that the thefts were discussed in meeting of Sansthan on 14.2.1993 {Exh.41} and 19.3.1993 {Exh.42} It further found that the Sansthan had also placed certain vouchers to show that it is actually administering the affairs of Gopeshwar Temples and other temples. The voucher Exh.53, which revealed expenditure incurred by the Sansthan for announcing to public sale of two trees in Ashram premises was also produced. The voucher Exh.53, which revealed expenditure incurred by the Sansthan for announcing to public sale of two trees in Ashram premises was also produced. It found that this position in relation to account was accepted by Tulshiram Lohiya and keys of offering boxes were in possession of trustees of the Sansthan. But, then it found that the audited accounts of Sansthan do not contain a single statement separately indicating all these expenditures and entire expenditure incurred on various religious programs of Sansthan & Ashram was mentioned together under the head irreligious function. But then it concluded that, this was not sufficient to falsify the version of Shri Falke regarding celebrations and various religious programs of Ashram by Shri Ram Sansthan. In paragraph No.59 it has considered the evidence of Shri Lohiya, who brought original cash book of expenditure of Ashram and found that the said cash book was not regularly written on daily basis and entries were not taken regularly time to time. It also found that it did not carry name of person or signature of person writing the accounts and there were no signatures after 3rd January, 1983 and ultimately concluded that thus there was substance in the stand of Sansthan that it was managing the affairs of Gopeshwar Temple and other Temples. 15. The Assistant Charity Commissioner has in paragraph No.61 then attempted to find out, whether there was any independent existence of Viyogi Maharaj Ashram and Gopeshwar Temple. In paragraph No.62 it concluded that as temples were constructed from public donations and as there was no obstruction for public to use the temples, the property of Ashram had acquired the status of public temple. But then, in paragraph No.63 it found that the Ashram had no independent existence and it further found that one of the contents necessary for existence of trust was there must be property held by persons to which an obligation is attached. It found that it was sufficiently established before it that Gopeshwar Temple, Viyogi Maharaj Ashram and other temples do not own any property. It therefore, accepted the change report submitted by the Sansthan vide Change report No. 367/1993 and consequentially dismissed Enquiry No.922/1993 by holding that no independent trust existed. 16. It found that it was sufficiently established before it that Gopeshwar Temple, Viyogi Maharaj Ashram and other temples do not own any property. It therefore, accepted the change report submitted by the Sansthan vide Change report No. 367/1993 and consequentially dismissed Enquiry No.922/1993 by holding that no independent trust existed. 16. In this background and in the light of the arguments mentioned above, the judgments delivered by the Joint Charity Commissioner in Appeal No. 36 and 37 of 1996 is to be looked into. The appreciation by the Appellate Authority which is from paragraph No.11 onwards goes to show that, it found non-examination of the reporting trustee Shri Dighade as most striking factor & proceeded to draw adverse inference against the Sansthan for not tendering him for cross examination. It found that there was evidence on record to show that Sansthan did not spend any money for erecting any structure in survey No.5 or wadhava. All structures were raised through public contributions. No objection was raised by any trustee of Sansthan when these constructions were undertaken. It found that present respondent No.2 Shri Anna Harne, specifically deposed that original of resolution dated 2.5.1958 was with Shri K.M. Dighade, the reporting trustee in change report No.367/1993. It found that Shri Harne made categorical statement that Sansthan by passing resolution donated that piece of land to Ashram for making construction and still Shri Dighade did not find it necessary to appear in witness box and to give evidence in rebuttal. Because of absence of evidence of Shri Dighade, the Joint Charity Commissioner proceeded to draw adverse inference against Sansthan of recognizing independent trust in the name of Viyogi Ashram and permitting trustees thereof to make construction in survey No.5. It found that Shri Falke had become the trustee of the Sansthan from 1989 and he failed to show that amount was spent from the revenue of the Sansthan for making construction in survey No.5. It found that evidence tendered by Shri Harne has practically gone unchallenged. It also concluded that though the land below the structure situated in field survey No.5 belonged to Sansthan, the superstructure erected belonged to the newly formed trust i.e. Ashram or Viyogi Maharaj (Gopeshwar Sansthan). In view of this finding it allowed the appeals. This application of mind is also maintained by the Additional District Judge in further appeals. 17. It also concluded that though the land below the structure situated in field survey No.5 belonged to Sansthan, the superstructure erected belonged to the newly formed trust i.e. Ashram or Viyogi Maharaj (Gopeshwar Sansthan). In view of this finding it allowed the appeals. This application of mind is also maintained by the Additional District Judge in further appeals. 17. Various judgments cited by Advocate Shri Khapre, to point out that Hindu Deity is legally recognized as an individual and therefore can maintain a suit or legal proceeding, are not very relevant for considering the controversy, which has been presented before this Court. The controversy needs to be adjudicated in the light of the questions as formulated and at least in present facts the Sansthan did not claim any ownership of movables which have been already recorded as property of Ashram. It is to be noted that in Enquiry No.368/1993 claim was made by Sansthan for recording immovable properties worth Rs. 20,120/- as the property of Shri Ram Sansthan. The said claim was accepted by the Assistant Charity Commissioner on 27.9.1993 and against it Ashram filed appeal No.1/1994 before the Joint Charity Commissioner, Nagpur. That appeal was allowed on 29.03.1995 by the Joint Charity Commissioner by holding that the property was not property of Sansthan. The Joint Charity Commissioner found that there was ample evidence to hold that the property did not belong to Sansthan and it appeared that it belonged to Ashram. Against this judgment, further appeal under Section 72 of the Act was filed by the Sansthan vide Misc. Civil Appeal No. 16/1996 before the Additional District Judge, Achalpur and that appeal/application was dismissed on 13.07.1999. In para No.10 of this order, the Additional District Judge, Achalpur has found that the Sansthan itself had stated that Gopeshwar temple was being managed by the non-applicants i.e. present respondents. In view of this stand, it accepted that the Sansthan had absolutely no concern or control over the management and affairs of the Ashram or its properties. It further found that whether said Ashram is a registered public trust or not, was not a issue for consideration before it. In para No.11 it has found that the report about theft of the offering boxes was lodged on behalf of the Ashram to police. It further found that whether said Ashram is a registered public trust or not, was not a issue for consideration before it. In para No.11 it has found that the report about theft of the offering boxes was lodged on behalf of the Ashram to police. It also found that the Auditors report revealed that the temple was belonging to Ashram and therefore, the movables could not have been the property of Sansthan. 18. Advocate Shri Khapre, has during arguments invited attention to the audit report dated 30.12.1991. The Auditors report discloses that Ashram existed since 1958 and because of faith in Viyogi Maharaj his disciples had constructed the temples, Dharmashalas, Wells etc. Auditor had worked out the price of this construction at Rs.2,31,381/- as shown by the persons constructing it and it was taken in balance sheet. Similarly, the movables of Rs. 20,120/- were also shown in balance sheet as mentioned in said report. Advocate Shri Khapre, has argued that after this report of Auditor the Sansthan had taken steps of filing of the charge report, the consideration by Assistant Charity Commissioner in Change Report No.367/1993 and application of mind by other authorities while holding that the movable property do not belong to Sansthan therefore, needs tobe viewed in this background. It is also to be noted that though the Joint Charity Commissioner had passed adverse orders on 29.03.1995, the challenge in change report No.367/1993 and 922/1993 was very much pending at that time. The question, whether in relation to immovable property & due to Section 14 of M.P. Trust Act, this adjudication would be resjudicata in change report No. 367/1993 or 922/1993, has not been gone into either by the Joint Charity Commissioner or by the Additional District Judge. 19. The judgment of Hon'ble Apex Court in the case of Abid Hatim Merchant (supra), cited by Advocate Shri Khapre, to invoke the doctrine of Cy pres, is not very relevant in present matter. There the facts show that the trust was established for a particular community and it was running hospital. The trustee then wanted to have a super specialty hospital and found that the benefit could not have been restricted to a particular community or religion. The constitution of the trust however, restricted the benefit to a particular community and therefore the Cy pres doctrine for change of object was sought and it was granted. The trustee then wanted to have a super specialty hospital and found that the benefit could not have been restricted to a particular community or religion. The constitution of the trust however, restricted the benefit to a particular community and therefore the Cy pres doctrine for change of object was sought and it was granted. In paragraph No.10, the Hon'ble Apex Court has observed that it was not called upon to embark upon an enquiry as to the applicability of Cy pres doctrine in the facts before it. In present circumstances, it is clear that though land was with protected tenant, land was with Sansthan and was therefore beneficial to it. The question whether Sansthan could have recovered its possession from protected tenant is altogether irrelevant, because it was let out to the tenant by the Sansthan only. Sansthan can itself mange the immovable properties which have come up in 20 gunthas or wadhva land for the benefit of devotees/disciples & no question of change of object arises here. No such question was ever raised before any of the lower authorities. Thus the very basis for invoking such doctrine is therefore absent in the present matter. Tenant appears to be the disciple of Viyogi Maharaj and therefore, he made available 20 Gunthas of land to Ashram. It appears that the Sansthan also passed a resolution proposing some arrangement for said purpose, but then all this does not attract the doctrine of Cy pres at all. 20. Perusal of copy of resolution dated 2.5.1958 as filed, shows that the Sansthan had no objection for allotting 20 Gunthas of land to Shri Gopeshwar Temple and it was also resolved that for said purpose application be made to the District Collector, Amravati. Advocate Shri Khapre, has also pointed out that the authorised President, Secretary of the Sansthan had filed reply vide Exh.6 in Enquiry No.922/1993. Perusal of said reply shows that no objection for registration of the trust as such was taken by these persons. But then, in very next line these persons have stated that they had objection regarding mention of immovable property shown in paragraph nos. 7A and 7B of the application. Those paragraphs show that the immovable property i.e. 20 Gunthas of land from gut No.5 and wadhava, area about 1 Acre and construction over it was the property objected to by these office bearers of Sansthan. 21. 7A and 7B of the application. Those paragraphs show that the immovable property i.e. 20 Gunthas of land from gut No.5 and wadhava, area about 1 Acre and construction over it was the property objected to by these office bearers of Sansthan. 21. Judgment in the case of Mannalal Khetan (supra), is relied upon by the Sansthan to urge that the provisions of Section 14 of the Madhya Pradesh Public Trust Act are mandatory. Said section 14 appears in Chapter 3 which deals with management of trust property and it is as under : 14.Previous sanction of Registrar in cases of Sale, etc. of property belonging to a public trust: (1) Subject to the directions in the instrument of trust or any direction given under this or any other law by any court : (a) no sale, mortgage, exchange or gift of any immovable property; and (b) no lease for a period exceeding seven years in the case of agricultural land or for a period exceeding three years in the case of non- agricultural land or building belonging to a public trust, shall be valid without the previous sanction of the Registrar. (2) The Registrar shall not refuse his sanction in respect of any transaction specified in sub-section [1] unless such transaction will, in his opinion, be prejudicial to the interests of the public trust. 22. Thus previous sanction of Registrar is essential not only for sale, mortgage, exchange or gift, but even for a lease for a period exceeding 7 years. The Registrar has been defined in Section 2[6] to mean Registrar of Public Trust and as per Section 3, Collector has been stated to be the Registrar of Public Trust. Thus when a lease for period exceeding 7 years in case of agricultural land and for a period exceeding 3 years in case of nonagricultural lands or building, cannot be granted without previous sanction of Registrar, the question is whether a licence to occupy its land permanently could have been granted by the Sansthan. The contention that because of Section 60[b] of the Easement Act, 1882 licence has become irrevocable, needs to be viewed in this background. The respondents have relied upon Ram Sarup Gupta .vrs. The contention that because of Section 60[b] of the Easement Act, 1882 licence has become irrevocable, needs to be viewed in this background. The respondents have relied upon Ram Sarup Gupta .vrs. Bishun Narain Inter College and others (supra), in support of their stand that grant of licence is not prohibited by Section 14 and said licence is irrevocable because from 1958 till 1993 no objection was raised to such grant by Sansthan and no objection was also raised when constructions were made on 20 Gunthas or wadhava land. Perusal of paragraph nos. 2,3 & 14 of this 1987 judgment of Hon'ble Apex Court clearly show that the property in dispute there belonged to an individual namely Raja Ramkumar Bhargav, he granted said land free of rent and also declared that it may be considered as his permanent contribution for the cause of School. It appears that thereafter the school management made certain permanent construction on open land attached to the main building to provide additional classrooms and to have other facilities. Then Shri Raja Ramkumar Bhagrav mortgaged the said property on 27.03.1957 i.e. 16 years after the above mentioned grant for loan taken by him. In settlement with his creditor, he sold said property and it was purchased by one Ramswaroop Gupta. who then filed proceeding for eviction of the school. The observations made by the Hon'ble Apex Court are in this background. It needs to be mentioned here that the judgment does not show that on 26.11.1941 when Raja Ramkumar Bhargav granted the said land permanently to school, he was under any disability and could not have granted the said land accordingly to the school. Thus power to transfer land in Raja Ramkumar Bhargav distinguishes this judgement in present facts. 23. Mannalal Khetan etc. .vrs. Kedar Nath Khetan and others (supra), considers the provisions of Section 108 of the Companies Act and the said provision debars Company from registering or transferring share unless a proper instrument of transfer duly stamped and executed by or on behalf of the transferor and by or on behalf of the transferee is delivered to the Company. The said Section uses the word shall not register. The Hon'ble Apex Court has held that negative, prohibitory and exclusive words are indicative of the legislative intent to make the statute is mandatory. The said Section uses the word shall not register. The Hon'ble Apex Court has held that negative, prohibitory and exclusive words are indicative of the legislative intent to make the statute is mandatory. Negative words are clearly prohibitory and are ordinarily used as a legislative device to make a statutory provision imperative. The words shall not register, are held to be mandatory in character. In this background in paragraph No.21, the Hon'ble Apex Court has observed as under : 21. If anything is against law though it is not prohibited in the statute but only a penalty is annexed the agreement is void. In every case where a statute inflicts a penalty for doing an act, though the act be not prohibited, yet the thing is unlawful, because it is not intended that the statute would inflict a penalty for a lawful act. 27TH FEBRUARY, 2009 24. Section 14 of Madhya Pradesh Trust Act is also negatively worded and, therefore, clearly prohibitory. It declares that no such transfer shall be valid and hence previous sanction of Registrar in the matter is essential. The Section clearly prohibits grant of lease by Trust if period thereof is to exceed seven years. The legal position, therefore, cannot be in doubt and any act resulting into grant of irrevocable license is also contrary to said Section 14. The contention that there is no transfer and hence Section 14 is not applicable is misconceived. The respondents have not even whispered that this Section is not mandatory but their effort was to by-pass it by pleading an irrevocable license. 25. Strong reliance has been placed on the resolution dated 02.05.1958 by the Ashram to contend that there is already a decision taken to allot 20 Gunthas of land from Survey No.5 to Ashram. I do not find it necessary to go into the controversy about existence or formal proof of this resolution here. The perusal of resolution as produced shows that the Sansthan had taken note of the fact that the devotees of Shri Sant Viyogi Maharaj with self encouragement, labour and monetary help had started constructing of Thirthasthanas. After taking them into account, the various religious functions and celebrations being held on the river bank in gut No.5 with the encouragement of people, Sansthan resolved that it had no objection in allotting 20 Gunthas of land to Shri Gopeshwar Temple. After taking them into account, the various religious functions and celebrations being held on the river bank in gut No.5 with the encouragement of people, Sansthan resolved that it had no objection in allotting 20 Gunthas of land to Shri Gopeshwar Temple. However, the resolution does not end here and it proceeds to observe that an application be made to District Collector, Amravati. The District Collector is the Registrar functioning under MP Trust Act and hence it is apparent that Sansthan wanted his approval in terms of said provisions. No evidence has been brought on record to show that any such application was moved before the District Collector and if moved, what happened to it. It is, therefore, obvious that the land of Sansthan or any right therein has not been transferred to Ashram at all. In any case, it cannot be said to be legally transferred or even licensed to Ashram. The argument that the land continues to belong to Sansthan, superstructures upon it belong to Ashram overlooks the fact that the Sansthan being registered Public Trust all its land must be used for the purposes of Sansthan as per its Constitution and cannot be used for any other purpose to its exclusion. If the Sansthan itself uses the land for some other religious or public charitable purpose as per its Constitution viz. for Gopeshwar Temple and Viyogi Maharaj Ashram, it can not be objected to. In fact here there is no such objection. 26. In AIR 1997 SC 1041 (Panchugopal Barua v. Umesh Chandra Goswami) the Hon'ble Apex Court observes:-- 10. In the case of Chevalier I. I. Iyyappan v. The Dharmodayam Co., Trichur, AIR 1966 SC 1017 , Kapoor, J. speaking for a three-Judges Bench considered the case of a party, which had tried to change its stand at the appellate stage by raising a plea of license and its irrevocability, a plea not raised at the trial Court nor adjudicated upon at any stage. It was noticed (Para 8) : "The appellant in this Court has mainly relied on the plea that he had been granted a licence and acting upon the licence he had executed a work of permanent character and incurred expenses in the execution thereof and therefore under Section 60(b) of the Indian Easements Act, 1882 (5 of 1882), hereinafter referred to as the 'Act', which was applicable to the area where the property is situate and therefore the licence was irrevocable. Now in the trial Court no plea of licence or its irrevocability was raised but what was pleaded was the validity of the trust in Exhibit X. In the judgment of the trial Court no such question was discussed. In the grounds of appeal in his appeal to the High Court which the appellant took against the decree of the trial Court the relevant grounds are 9 to 13." The Court on the basis of the above facts and circumstances observed that it was not open to the party to change his case at the appellate stage and since the plea of licence or its irrevocability had not been raised before the trial Court, the same could not have been raised in the High Court and upheld the judgment of the High Court refusing the permission to raise such a plea at the appellate stage for the first time. That judgment clearly applies to the facts of the present case. The learned single Judge noticed this judgment but opined that the decision could not prevent the appellant in the High Court from taking the plea regarding the protection of Section 60(b) of the Act "inasmuch as the granting of licence and raising of structure is the case of the plaintiff himself". Even after noticing that the appellant had specifically raised the defence both in the trial Court and in the First Appellate Court that he had raised the construction as a prospective owner, the learned single Judge went on to say that since the plaintiff's case in the plaint was that a licence had been granted to the appellant to raise the structure, relief could be granted to the defendant on the plea raised by the plaintiff himself ignoring the stand of the defendant as the plaintiff had to succeed or fail on the strength of his own case and not on the weakness of the defence. There may not be any quarrel with the abstract proposition of law that a plaintiff can succeed on the strength of his own case and not on the weakness of the defence but what the High Court seems to have completely overlooked is that the plaintiff's case specifically was that he had allowed the defendant to make permissive use of the suit land as a licensee and had permitted the raising of temporary structure thereon for a period of two years beginning 1st June, 1963 and that the defendant acting on the licence had raised a temporary structure on the suit land and contrary to the understanding had refused to hand back the possession of the suit land after the expiry of two years. This plea of the plaintiff had to be taken as a whole and could not be dissected for the purpose of granting relief to the respondent by accepting a part of it. On the plaintiff's plea, taken as a whole, the question of irrevocability of the licence could not at all arise because for granting relief on the principles contained in Section 60 (b) of the Easements Act, a licence becomes irrevocable provided the following three conditions are satisfied : (1) that the occupier must be a licensee; (2) that he should have acted upon the licensee; (3) and executed a work of permanent character and incurred expenses for the execution of the workî These observations also apply here as irrevocable license was never the plea of the respondents and in fact, here even grant of any license in their favour can not be accepted. The joint charity commissioner or Additional District Judge have not found that Ashram incurred expenditure for permanent structures. The evidence shows that public at large through self help & labour constructed on land of Sansthan. 27. The Assistant Charity Commissioner has found that the applicants in Enquiry No. 922/1993 failed to demonstrate any management of Ashram by them. The findings of Assistant Charity Commissioner in this respect are already mentioned by me. The effort of respondents in present proceedings was to show that the order dated 29.03.1995 passed by Joint Charity Commissioner in Appeal No.1/1994 held that there was an independent or separate management and said finding, therefore, operated as res-judicata. The findings of Assistant Charity Commissioner in this respect are already mentioned by me. The effort of respondents in present proceedings was to show that the order dated 29.03.1995 passed by Joint Charity Commissioner in Appeal No.1/1994 held that there was an independent or separate management and said finding, therefore, operated as res-judicata. It is to be noted that the first order in this respect is passed by the Assistant Charity Commissioner in Change Report Case No. 368 of 1993. The Change Report proceeding involved in the present matter is Change Report Case No. 367 of 1993. Thus, Sansthan had filed two separate Change Reports simultaneously and one was in relation to immovable property and other was for movable property. Both the Change Reports, therefore, ought to have been considered and decided together, but it appears that Change Report No. 368 of 1993 was decided earlier by the Assistant Charity Commissioner. The copy of order of Joint Charity Commissioner dated 29.03.1995 or copy of order dated 13.07.1999 delivered by the Additional District Judge, Achalpur in MCA No. 16/1996 does not show that the question of existence of any independent management for Ashram was an issue in those proceedings. The question was whether Sansthan had proved that movable property claimed as its own property in Change Report No. 368 of 1993 was the property of Sansthan. The Assistant Charity Commissioner accepted the claim of Sansthan and that order was set aside by Joint Charity Commissioner in an appeal and the order of Joint Charity Commissioner was upheld by Additional District Judge, Achalpur. This appellate order again nowhere shows any application of mind as to the independent existence of any management for Ashram. The perusal of audit report for the year 1991 clearly shows that the properties were not included as properties of Sansthan and, therefore, only the change reports vide 367 of 1993 and 368 of 1993 were required to be moved. I, therefore, find that as questions of independent existence of management did not arise in Change Report No. 368 of 1993, the said issue has not been decided in that matter and there is no finding also about it. As the question was in relation to only movable property, the question did not arise for consideration. I, therefore, find that as questions of independent existence of management did not arise in Change Report No. 368 of 1993, the said issue has not been decided in that matter and there is no finding also about it. As the question was in relation to only movable property, the question did not arise for consideration. It cropped up for consideration only in Change Report No. 367 of 1993 and after indepth appreciation, the Assistant Charity Commissioner has found that the management of the Ashram was with Sansthan. It is to be noted that evidence on record demonstrated that the Sansthan organised various religious celebrations on occasions as found by Assistant Charity Commissioner and the custody of offering boxes installed at various places in Ashram was also with the Sansthan. The Assistant Commissioner has in fact recorded that it was not in dispute that keys of those offering boxes were with Shri Kashinath, a trustee of Sansthan. Thus, not only the question of ownership of immovable property but question of existence of independent management for Ashram which has been gone into by Assistant Charity Commissioner has not been touched either by the Joint Charity Commissioner or by Additional District Judge. In earlier proceedings the only finding is movable property did not belong to Sansthan as it was not included in its accounts. Said finding is not determinative in present facts & controversy. 28. It is to be noted that the obligation of appellate Court which is writing a judgment of reversible is well settled and can be gathered from the judgment of Hon'ble Apex Court in the case of Santosh Hazari .v. Purushottam Tiwari (2001(2) Mh.L.J., 786). The appellate Court has to come in close quarter with the reasons of trial Court and thereafter only it can record its reasons for differing with those findings. The various reasons given by Assistant Charity Commissioner for recording a finding in favour of Sansthan in present matter are not even discussed by the Joint Charity Commissioner or then by the Additional District Judge. 29. Though there is some dispute between the parties about the resolution dated 02.05.1958, it is sought to be urged that this resolution is not legally proved in proceedings. Perusal of resolution as filed does not show that the said resolution itself was to be treated as a transfer of land in favour of Gopeshwar Temple. 29. Though there is some dispute between the parties about the resolution dated 02.05.1958, it is sought to be urged that this resolution is not legally proved in proceedings. Perusal of resolution as filed does not show that the said resolution itself was to be treated as a transfer of land in favour of Gopeshwar Temple. Ashram has contended that this resolution also supported the fact that there was an independent management for Ashram. The perusal of resolution shows that after noticing the visit of Shri Sant Viyogi Maharaj and his stay in the river bed along side Survey No.5 Umbar (Big) trees planted by him, the Trustees noticed that the devotees of Sant Viyogi Maharaj because of self labour and money and self encouragement started constructing all thirthasthanas. It has also been found that various religious ceremonies were held by public and Viyogi Maharaj had self planned to construct temple of Shri Gopeshwar by the side of Tirth on the bank of the river in Survey No.5. It was further found that because of encouragement and participation of people there was a plan to construct Ghat (steps) for entering the river, to construct Kund (Water Tank), Gopeshwar Temple so that the people would be in better position to perform marriage ceremonies, to perform poojas on various eclipses. After considering all this, the trustees resolved that the activities and developments would help in mental and religious development of public and also development of industries. Therefore, they recorded their no objection for allotting 20 Gunthas of land for Shri Gopeshwar Temple and also resolved to move application before the District Collector, Amravati. Thus, the trustees only recorded their no objection for grant of land but did not pass resolution granting the land to the Ashram. Not only this they also resolved to move Collector as without previous permission of Collector such transfer would not have taken place. It is, therefore, obvious that the resolution was executory & does not have the effect of granting the land to the Ashram. The resolution, therefore, cannot operate either as lease or as license. Not only this they also resolved to move Collector as without previous permission of Collector such transfer would not have taken place. It is, therefore, obvious that the resolution was executory & does not have the effect of granting the land to the Ashram. The resolution, therefore, cannot operate either as lease or as license. The learned Counsel for Sansthan has tried to urge that a document of lease or license needs to be registered but in view of findings given above, it is not necessary for this Court to consider the said argument because it has not been brought on record that said resolution dated 02.05.1958 has been implemented in accordance with law. In Shiromani Gurudwara Prabandhak Committee Amritsar .v. Shri Som Nath Dass and others (supra) in para 31, the Hon'ble Apex Court has held that no endowment or a juristic person depends on the appointment of a Manager and it may be proper or advisable to appoint such Manager, in his absence it may be done either by the trustees or Court in accordance with law. Here resolution dated 02.05.2008 does not show appoint of any Manager and the facts also does not disclose any Manager or management by Ashram. The claim of Ashram that 15 persons were appointed in meeting dated 05.03.1983 is also found to be incorrect by Assistant Charity Commissioner. 30. In view of the discussion above, I find that the resolution No.4 dated 02.05.1958 does not have effect on donation of 20 Gunthas of land in Survey No.5 to Ashram and there was no question of drawing any adverse inference against Sansthan for not examining its President. Question Nos.(1) and (2) in Second Appeal No. 621/2004, therefore, need to be answered in favour of appellant-Sansthan. Similarly, the question formulated in Second Appeal No.15/2005 needs to be answered in favour of appellant-Sansthan. Both the Second Appeals are, therefore, allowed. The impugned judgment dated 04.05.2000 delivered by the Joint Charity Commissioner in Appeal Nos.36 of 1996 and 37 of 1996 as also the judgment dated 05.08.2005 delivered in Miscellaneous Civil Application Nos.18 of 2000 and 19 of 2000 by Additional District Judge, Achalpur are hereby quashed and set aside. The order dated 20th July, 1996 delivered by Assistant Charity Commissioner, Amravati Region, Amravati is hereby restored. However, in the circumstances of the case, there shall be no order as to costs.