ORDER 1. This appeal has been filed by the plaintiff against the judgment and decree dated 27.2.1985 passed by First Additional District Judge, Sagar, in Civil Suit No.9-N80, whereby the trial Court decided the preliminary issue regarding maintainability of the civil suit by holding that the provisions of sections 8 and 12 of the M.P. Public Trust Act, 1951 (in short "the Act") and under section 80 of Civil Procedure Code, 1908 the judgment and decree dated 4.3.1976 passed in earlier suit is a nullity and civil Court had no jurisdiction to entertain the present suit and dismissed the same. 2. Briefly the appellants' allegations in their suit for declaration to declare the sale-deed dated 1.12.1969 executed by defendant No.4 Gajanan Pathak, defendant No.5 Mst. Prem Bai and father of defendant No.6 Harish Pathak in favour of defendant No.1 Jagannath Prasad, defendant No.2 Badri Prasad and defendant No.3 Laxminarayan in respect of house No.339 and 339/1 (old House No.8 and 8/1), Parkota Ward, Sagar as null and void and defendants No.1 to 3 be directed to deliver vacant possession of the suit house and till the vacant possession is delivered to them, they shall be directed to pay mesne profit @ Rs.300/- per month from the date of the filing of the suit. 3. In para 6 of the plaint, it is contended that the suit house is the only property of 'Shri Dev Radhakrishna Jugalkishore Mandir', constructed by Leeladhar Lohar 90 years prior to the institution of the suit. Late Devi Prasad Pathak was Pujari of the said temple. The temple was situated in the suit house and the said Pujari was residing in the ground floor of the suit house as Mohattimkar. On 4.3.1964 one Ram Sevak had filed an application for registration of trust before the Registrar, Public Trust, Sagar. The other interested persons also filed similar application on 21.4.1964. The Sub-Divisional Officer, Sagar on 3.6.1968 submitted its report on the basis of which the Registrar, Public Trust, Sagar, rejected the application on 1.4.1969. The trustees of Shri Dev Radharishna Jugal Kishore Ji Ka Mandir challenged the said order by filing Civil Suit No.5-A/72 (old No.88A/69). The defendant No.1, father of original defendant No.6, Devi Prasad Pathak was impleaded as defendant No.1. The defendant No.4 and defendant No.6 were impleaded as defendant No.2 and 3. They were proceeded ex parte. The trustees of Shri Dev Radharishna Jugal Kishore Ji Ka Mandir challenged the said order by filing Civil Suit No.5-A/72 (old No.88A/69). The defendant No.1, father of original defendant No.6, Devi Prasad Pathak was impleaded as defendant No.1. The defendant No.4 and defendant No.6 were impleaded as defendant No.2 and 3. They were proceeded ex parte. The trial Court on 4.3.1976 decreed the earlier suit of the trustees filed under section 8 of the Act and declared that the suit property is a trust property of Shri Dev Radhakrishna Jugal Kishore Ji Ka Mandir and the transfer made by the defendants was held to be illegal. The trial Court by judgment and decree dated 4.3.1976 has held that Shri Dev Radhakrishna Jugal Kishore Ji Ka Mandir is a temple of Lohar Samaj, the defendant No.1 had no right to transfer the same as he was appointed as Pujari (Mohattimkar) to look after the said temple. 4. The suit was filed on 10.9.1979 on the ground that plaintiffs were all trustees of the 'Shri Dev Radhakrishna Jugal Kishore' (Loharon Ka Mandir), Sagar, which was duly registered by Public Trust of Sagar, and as such, were entitled to litigate for the trust. The trust did not have any movable or immovable property apart from the disputed house which is presently in possession of defendants No.1, 2 and 3. These vendees have purchased the suit house from defendants No.4 to 6 and late father of defendant No.6 Devi Prasad Pathak, through a registered instrument of sale dated 1.12.1969. The trust did not transfer any of its property or had it entered into any agreement with anyone whereby he could acquire any interest in the suit house. The vendors had no right or title in the suit house to transfer or sale or otherwise to the vendees and that the latter had not acquired acquisition by the instrument dated 1.12.1969. 5. The present suit was based on judgment and decree dated 4.3.1976 passed in earlier civil suit (Civil Suit No.5-A72) filed by the plaintiffs trustees. . 6. The defendants No.1 to 3 had filed their written statement on 18.8.1981 and raised a ground regarding maintainability of the present suit on the ground that the judgment and decree passed in earlier suit is a nullity, void and ineffective. . 6. The defendants No.1 to 3 had filed their written statement on 18.8.1981 and raised a ground regarding maintainability of the present suit on the ground that the judgment and decree passed in earlier suit is a nullity, void and ineffective. In the earlier suit the Registrar, Public Trust was not made a party nor notice was served on the State Government through the Registrar of Public Trust. There was no notice under section 80 of the Code of Civil Procedure, 1908, without which the suit could not have been proceeded. Any decision contrary to the mandatory provisions of section 8 of the Act shall be a nullity and of no consequence. The judgment and decree dated 4.3.1976 of the earlier civil suit was obtained by practising fraud on the Court. The summons in the earlier civil suit even if published in a newspaper which has no wide circulation in Sagar would be of no consequence. It has also been contended that defendants No.1, 2 and 3 have purchased the suit house from defendant No.5 to 6 and late Devi Prasad Pathak vide sale-deed dated 1.12.1979 and they are in possession in their own rights. They have been in possession of the said suit house as owner since 1910 without any let or hindrance in their title peacefully, openly and as of right. They denied that temple was constructed about 90 years ago by Leeladhar Lohar or that late Shri Devi Prasad Pathak was Pujari in the said temple or he was residing in the house as a sarbarahkar. It is also contended that in the earlier suit order of ex parte was passed due to the fraud practised on the Court. In para 14 of the additional pleadings it is contended that in judgment and decree dated 30.11.1935 passed in Civil Suit No.9-A/35, it is held that defendants-predecessor Devi Prasad Pathak were in adverse possession for about 30 years prior to the date of that suit and further held that it was the property belonging to the plaintiff Mathura Prasad of that suit. The defendant Devi Prasad Pathak was held to be in adverse possession of some portion of the suit house. With the above, they prayed for dismissal of the suit. 7. The defendant Devi Prasad Pathak was held to be in adverse possession of some portion of the suit house. With the above, they prayed for dismissal of the suit. 7. The trial Court on 20.10.1984 framed a preliminary issue regarding maintainability of the suit and by the impugned judgment and decree decided the said issue in favour of defendants and against the appellant-plaintiff by holding that the suit is barred. 8. Learned counsel for appellant submits that the present suit was filed after giving due notice dated 31.10.1977 to the defendants which was duly replied by them on 14.11.1977. The trial Court committed an error in holding that the earlier judgment and decree dated 4.3.1976 was passed without complying the provisions of sections 8 and 12 of the Act and section 80 of CPC. Without going to the fact that earlier judgment and decree dated 4.3.1976 was never challenged by the defendants nor there is any specific pleading regarding the fraud and collusion as required under section 44 of the Evidence Act and, therefore, it cannot be said that the judgment dated 4.3.1976 is void ab initio. 9. On the other hand, learned senior counsel who is appearing on behalf of respondents No.1 to 3 has submitted that mandatory provisions of section 80 of CPC and section 8 and 12 of the Act has not been complied with and, therefore, the learned trial Court has not committed any legal error in dismissing the suit. 10. I have heard the arguments of the learned counsel for the parties and perused the record of the case. 11. It is well settled that mere pleading does not make out a strong case. The material and evidence has to show that there was a fraud, a finding as to the fraud cannot be based on suspicion and conjectures. It is also well settled', that the judgment which was obtained by fraud can be challenged without setting aside the decree, and can be impeached collaterally by pleading fraud as a defence to an action. Here in the present case, the defendants No.1 to 3 were proceeded ex parte and thereafter ex parte judgment and decree was passed against them. It is also well settled', that the judgment which was obtained by fraud can be challenged without setting aside the decree, and can be impeached collaterally by pleading fraud as a defence to an action. Here in the present case, the defendants No.1 to 3 were proceeded ex parte and thereafter ex parte judgment and decree was passed against them. The defendants No.1 to 3 never challenged the said judgment on merits nor they filed any appeal and for the first time in the written statement they took a plea of fraud as a defence on the ground that notices were served through publication without any proof that earlier they were avoiding notices and after ex parte they procured the judgment by practising fraud or collusion. There is no plea that how they procured the judgment by practising fraud or collusion. Even otherwise this question was not dealt with by the learned trial Court while dismissing the suit of the plaintiff. 12. The appellants earlier filed an application for the registration of the Public Trust which was rejected on 1.4.1969. Being aggrieved by the said finding of the Registrar, they filed a suit No.80-A/69-C.S. No.5-A/72) in the year 1969 as is evident from old number of the civil suit. There is no document on record to prove that in earlier suit no notice was issued to the State Government through the Registrar nor any document has been filed by the present respondents No.1 to 3 to prove that sections 8 and 12 of the Act and section 80 of CPC has not been complied with before passing the judgment and decree dated 4.3.1976. Even in the first appeal they have not filed any document to prove the same. In the present suit, it is not in dispute that before filing the suit, notice was issued by the appellants on 31.10.1977 thus without any oral and documentary evidence at this stage it cannot be said that the said mandatory provisions have not been complied with. 13. The apex Court in the case of State of Maharashtra and another v. Shri Chander Kan [ AIR 1977 SC 148 ], has held that the Registrar under the M.P. Public Trust Act is a public officer and the order passed by him declaring a sansthan to be a public trust is an act purporting to be done in his official capacity. Therefore, for a suit under section 8 of the Act to set aside the order, notice under section 80 was necessary. The apex Court has further held that when any suit is filed against a public officer in respect of any Act purporting to be done by such public officer in his official capacity notice under section 80 of CPC was required. 14. The Division Bench of this Court in the case of Laxman Prasad v. Shrideo Janki Raman [ 1973 JLJ 904 = 1973 MPLJ 842 ], has held that when a temple where an idol is installed is registered, together with its endowed properties, as a public trustunder the Madhya Pradesh Public Trusts Act, 1951, the suit must be brought in the name of the idol, by all the trustees acting together. However, such a suit may be brought by one trustee with the sanction and approval of his co-trustees. But sanction or approval must be strictly proved. Here in the present case, no objection to this effect was raised by the defendants No.1 to 3 before the trial Court. Even otherwise all the trustees of 'Shri Dev Radhakrishna Jugal Kishore Ji Ka Mandir' had filed a suit and, therefore, it cannot be said that they are not authorized to file a suit. If the suit was filed by one of the trustees then the objection of the respondents No.1 to 3 should be considered either by the trial Court or by this Court and, therefore, on the basis of the Division Bench decision, at present it cannot be said that the suit filed by the appellant was not maintainable. 15. In the present case, the averments made in the plaint indicate that the appellants on the basis of earlier judgment and decree dated 4.3.1976 challenged the sale-deed dated 1.12.1969 executed in favour of defendants No.1 to 3 on the ground that defendants No.4, 5 and father of defendant No.6 had no right to execute the said sale-deed. The State of M.P. and Registrar Public Trust were not impleaded in the plaint because no relief has been claimed against them and, therefore, at this stage on the basis of the averments made in the plaint, it cannot be said that notice under section 80 of the Code is mandatory or that the suit would be barred by section 80 of the Code. The apex Court in the case of Prem Laia Nahata and another v. Chandi Prasad Sikaria [ AIR 2007 SC 1247 ], has observed that in a case not covered by sub-section (2) of section 80, it is provided in subsection (1) of section 80 that "no suit shall be instituted". This is, therefore, a bar to the institution of the suit and that is why Courts have taken the view that in a case where notice under section 80 of the Code is mandatory, if the averments in the plaint indicate the absence of a notice, the plaint is liable to be rejected. For, in that case, the entertaining of the suit would be barred by section 80 of the Code. 16. In the case of Roop Chand v. Babu Lal [ 2003(1) MPWN 71 ], it has been held that the suit cannot be dismissed by non-impleading of State and Registrar. The present civil suit has been filed against the vendees in whose favour the sale-deed in respect of trust property has been executed by defendants No.4, 5 and father of defendant No.6 and, therefore, under section 8(2) of the Act in every such case the civil Court can issue notice through Registrar and the State Government if it is so desired, shall be made party to the suit. In the present case no specific issue regarding collusion and fraud was framed by the trial Court nor there is any finding that the trial Court examined the record of earlier civil suit. The defendants No.1 to 3 are also claiming title by adverse possession, it is well settled that plea of adverse possession and acquisition of title by adverse possession is to be specifically pleaded. Any party claiming title by adverse possession must definitely allege and prove how and when the adverse possession commenced, what was the nature of the possession and whether the fact of adverse possession was known to the real owner. 17. In the cae of Hargovind v. State of M.P. [1999 RN 243], the suit for declaration was filed by the plaintiff for declaration that the order dated 5.6.1980 passed by SDO, Tikamgarh be declared illegal and set aside and the appellant be declared as validly appointed Pujari of the temple of Narsingh Bhagwan which was constructed by Kaushalya Das at Shailsagar, Tikamgarh. In the said case, it has been rightly held by this Court that the civil Court would not have any jurisdiction to decide the question as to whether a particular property is a public trust or not unless and until enquiry is made by the Registrar of the Public Trust, under section 5 of the Act and a finding is recorded by him. 18. The Full Bench of this Court in the case of Ramdayal Umraomal v. Pannalal Jagannathji [ 1979 JLJ 720 = 1979 MPLJ 736 ], has held that under Order 14, rule 2, Civil Procedure Code, an issue relating to jurisdiction of the Court can be tried as a preliminary issue only if it can be disposed of without recording any evidence. If the issue of jurisdiction is a mixed question of law and fact requiring recording of evidence the same cannot be tried as a preliminary issue. Here in the present case, the issue relating to jurisdiction of Court is a mixed question of law and fact. It cannot be disposed of without recording the evidence' of the parties. The trial Court has committed a legal error in deciding the preliminary issue relating to jurisdiction of the Court without any oral and documentary evidence on the basis of plea taken by the defendants No.1 to 3 and even without calling the record of the trial Court in Civil Suit No.5-A/72 (old No.88-N69) decided on 4.3.1976. 19. In view of the present facts and circumstances of the case discussed herein above, the impugned judgment is not sustainable and is accordingly set aside. The trial Court is directed to frame other issues and decide the question regarding maintainability of the suit along with other issues, after recording the evidence of the parties. Looking to the fact that the suit is pending since 1979 and therefore both the parties are directed to remain present before the trial Court on 14th May, 2009 and thereafter the trial Court after giving an opportunity of hearing to the parties to adduce evidence, decide the civil suit expeditiously as early as possible and no unnecessary adjournment shall be granted to the parties. 20. In the result, the appeal is allowed with the aforesaid but without any order as to costs. 20. In the result, the appeal is allowed with the aforesaid but without any order as to costs. I have not expressed any opinion on merits of the case and all the issues which are raised in this appeal are left open for deciding it by the trial Court.