JUDGMENT Hon’ble Sudhir Agarwal, J.—This defendants’ appeal under Section 96 of the Civil Procedure Code (hereinafter referred to as ‘C.P.C.’) has arisen from judgment and decree dated 15th May, 1987 passed by Shri Munendra Kumar, IIIrd Additional District Judge, Kanpur Nagar, Kanpur in Original Suit No. 10 of 1982, filed under Section 92 C.P.C., for removal of defendants No. 1 to 4 from trusteeship and appointment of Shri Mahabir Prasad and plaintiff 2 as new trustees and for some other relifes. 2. Trial Court decreed the suit, passing following operative order: “The suit of the plaintiffs is decreed. The defendants No. 1 to 4 are directed to furnish the accounts of the trust and the accounts relating to the investment of the sale proceeds raised from the sale of the property of the trust at Bombay. The defendants No. 1 to 4 will, however, remain the trustee but at the same time plaintiff No. 1 and plaintiff No. 2 are appointed trustees. They shall be included in the list of trustees and they shall hold the office of the trustees and entitled to attend the meetings of the trust and to have full knowledge of the resolutions drawn and minutes known. The strength of the trustees from the branch of each brother would be equal. Now trustees from the branch of Mahabir Prasad (deceased), Shyam Sunder and Kailashpat would be added. The defendant No. 1 to 4 would not sell any property of the trust at Kanpur, Varanasi and Calcutta without the leave of the Court. The trustees may seek any further directions from the Court as and when necessary for the administration of the Management and property of the suit. The plaintiffs decree holders to take steps accordingly. Since the property is trust property and the plaintiffs and defendants are equally interested in the betterment and advancement of the trust, no order as the costs. The defendants to furnish accounts within one month from the date of this decree. The plaintiffs to take steps for getting the accounts examined and scrutinised. Let a preliminary decree be prepared. Further matters and questions will be considered at final decree stage.” 3. The facts in brief, giving rise to the present appeal, are as under:­ 4. The defendants to furnish accounts within one month from the date of this decree. The plaintiffs to take steps for getting the accounts examined and scrutinised. Let a preliminary decree be prepared. Further matters and questions will be considered at final decree stage.” 3. The facts in brief, giving rise to the present appeal, are as under:­ 4. Two plaintiffs Prakash Chandra Jhunjhunwala and Laxmi Kant Jhunjhunwala, sons of Late Dwarka Das Jhunjhunwala, resident of Motinagar, District Faizabad instituted Original Suit No. 10 of 1982 vide plaint dated 26.4.1982 impleading following five defendants: 1.Vishnu Dayal Jhunjhunwala, son of Late Dwarka Das Jhunjhunwala, resident of Aurangabad, Post Box No. 14, 235 Sector No. 7, Chiral Thane, Marthawada Refractions Ltd., Aurangabad. 2. Bharat Kumar Jhunjhunwala 3. Vinod Kumar Jhunjhunwala 4. Ramesh Kumar Jhunjhunwala (2 to 4) sons of Vishnu Dayal Jhunjhunwala, residents of Motinagar, District Faizabad 5. Moti Lal Bhimraj Charity Trust, through its Chairman Vishnu Dayal Jhunjhunwala, Bank of India Building, 185 Sheikh Memon Street, Bombay-400002. 5. The plaint case set up by plaintiffs-respondents is that defendant 5, Moti Lal Bhimraj Charity Trust, (hereinafter referred to as the ‘Trust’), is a public charitable trust, originally founded and established on 12th March, 1936 under the provisions of “The Bombay Public Trusts Act, 1950” (hereinafter referred to as ‘Bombay Act, 1950). It was created through a Trust Deed dated 13th March, 1936, registered at Serial No. 12049 by Sub-Registrar, Bombay. The object and purpose of Trust is to support educational institutions, disburse charges and scholarship to students in the country and abroad, promoting and propagating the cause of education, creating faith in public and so on. The purpose and object of Trust are elaborately stated in para-IV of Trust Deed. 6. Originally, certain properties in Calcutta were dedicated by the author of Trust. Certain more properties were subsequently given and added to Trust vide another registered Deed of Trust dated 3.11.1951. Trust, had, therefore, properties movable and immovable at Bombay, Calcutta, Banaras and Kanpur. Trust properties comprise buildings which are rented to different tenants. Income derived from Trust properties is used for fulfillment of objects of Trust. 7. The pedigree of plaintiffs and defendants 1 to 4 has been given in para-9 of the plaint, as under : 8. Defendant 1 is the Chairman of Trust and other defendants 2 to 4 are his sons. Income derived from Trust properties is used for fulfillment of objects of Trust. 7. The pedigree of plaintiffs and defendants 1 to 4 has been given in para-9 of the plaint, as under : 8. Defendant 1 is the Chairman of Trust and other defendants 2 to 4 are his sons. There is a stipulation in Trust Deed, in para XV (ii), that trustees shall always be appointed by trustees from the direct male descendants in the male line of descendants of Moti Lal Jhunjhunwala and Bhim Raj Jhunjhunwala. Despite existence of vacancies, defendants, being in majority, breached the conditions of Trust and did not allow plaintiff 2 or Mahabir Prasad, the direct male line descendant of Moti Lal Jhunjhunwala to become trustees. That is how, they maintain majority of trustees from one branch only. The manner in which terms of Trust Deed dated 13th March, 1936 and 8th November, 1951 alleged to be breached are stated in para-13 of plaint, as under: “(a) That the defendants 1 to 4 are in collusion to usurp the properties of the trust and its income for their own personal use and not to interest the same for the fulfilment of the object of the trust as contemplated in Para-IV of Annexure 1. (b) That no regular meetings of the trust committees are held. The deed provides at least three meetings a year. (c) The minutes of the meetings are scrupulously manipulated without the knowledge of the plaintiffs to suit their personal ends. Even the notice of the meetings are not given to plaintiffs. (d) That no secretary of the trust has been appointed. (e) That the defendants 1 to 4 have made an agreement to sell the trust property known as “Vijay Bhawan” at “Arora Mahal”, 8 Walkeshwar Road, Bombay-6, in favour of Associate to Shri Hazi Mastan of Bombay at a throw away price of Rs. 4 lakhs, although this property is not less than of Rupees 10/15 Lakhs. Apart from this, the contemplated sale of this property was neither needed nor the consent for such an agreement to sell, was actually obtained by the defendants No. 1 to 4. It was also not for the purpose of the fulfilment of the objects of the aforementioned trust. (f) That the aforementioned transaction was a clear breach of para X(B) of the Annexure 2. It was also not for the purpose of the fulfilment of the objects of the aforementioned trust. (f) That the aforementioned transaction was a clear breach of para X(B) of the Annexure 2. (g) That the defendant No. 1 to 4 are openly saying that they would sell away the entire trust property for no shine or reason. So much so that Sri Ramesh Jhunjhunwala made an advertisement in Dainik Jagran published from Lucknow on 1st November, 1981 inviting purchasers to offer sale price for the sale of “Moti Bhawan” a very huge property of the trust situate at Collectorganj, Kanpur. This building creates an income of about Rs. 50,000/- yearly and is the major income for the utilisation and fulfilment of the trust objects. (h) That the defendants 1 to 4 must have sold out the aforementioned property of the trust at Kanpur, but the plaintiff No. 2 contradicted the aforementioned advertisement for sale by publishing the contradictions in “Dainik Jagran” daily dated 4th December, 1981 and in “Aaj” Hindi daily 4th December, 1981. All these advertisements and contradictions are Annexure 3, 4, 5 and 6 respectively and are annexed to the plaint. (i) That the registered office of M/S K.M. Sugar Mills Ltd. Motinagar, Faizabad is housed in the building “Moti Bhawan” Collectroganj, Kanpur, Sarv Sri G.L. Sharma and Santosh Kumar are members of the Staff of M/S K.M. Sugar Mills Ltd. Post Office Moti Nagar, District Faizabad. They in addition to their duties of looking after and maintaining the records of the K.M. Sugar Mills, also looked after the management of the trust on 13th March, 1982, Sri Bharat Kumar Jhunjhunwala wanted to take forcible possession of 11 Moti Bhawan, Collectorganj, Kanpur for which he had no valid authority and with that intention he alongwith his employees Sri Ram Karan Singh and tuff men entered, the room of the office of Sri G.L. Sharma and Santosh Kumar took by force not only the documents and money pertaining to M.B. Charity Trust but also the documents relating to K.M. Sugar Mills Ltd., Moti Nagar, Faizabad. They also manhandled the aforementioned G. L. Sharma and Sri Santosh Kumar and took their under wrongful confinement. They did so only in their attempt to take the inclusive individual control of the trust property and to manipulate the records for their personal benefit. They also manhandled the aforementioned G. L. Sharma and Sri Santosh Kumar and took their under wrongful confinement. They did so only in their attempt to take the inclusive individual control of the trust property and to manipulate the records for their personal benefit. (j) That regular accounts of the property and income of the trust was never maintained and put in the meetings for verifications and confirmation. (k) That the defendants 1 to 4 are not even acknowledging the plaintiff No. 2 as the trustees of the trust. Now, so that they may inclusively transfer the trust properties for their personal gain.” 9. The plaintiff made several attempts and requested defendants 1 and 2 to work for fulfilment of object and purpose of Trust but they refused to do so and are continuing breach, as stated in para-13. The cause of action is said to have arisen when defendants made agreement to sell Trust property at Bombay in favour of Hazi Mastan and thereafter on every day. One of the Trust properties i.e. 52/1, Moti Bhawan, Collectorganj, Kanpur is within the territorial jurisdiction of the Court below. Plaintiffs, therefore, prayed for following reliefs: “(a) That the defendants 1 to 4 may be removed from the trusteeship of the above trust. (b) That Sri Mahabir Prasad, son of Late Sri Jotha Mal and Plaintiff No. 2 be appointed new trustees. (c) That the defendants 1 to 4 may be directed to put before this Hon’ble Court all the accounts of the trust properties situate at Kanpur, Bombay, Calcutta and Varanasi its books and make inquires about the maleficence and misfeasances of the accounts. (d) That the defendants 1 to 4 may be stopped to act as trustees of the trust and may be restrained from entering into any transaction of sale of any trust property or from realising any rent from the trust properties. (e) That the defendants may be restrained from interfering with the management through their servant or agents of the trust properties without conveying a meeting and due notice to the plaintiffs for such meetings. (f) such other relief which the Court may find it proper for the fulfilment of the purpose and the objects of the trust including a new scheme may also be granted.” 10. All the defendants filed a collective written statement, contesting the suit. (f) such other relief which the Court may find it proper for the fulfilment of the purpose and the objects of the trust including a new scheme may also be granted.” 10. All the defendants filed a collective written statement, contesting the suit. Contents of paras 1 to 7 of plaint were not disputed. It is then said that property of Trust comprises buildings rented out to different tenants, but rental income is not sufficient to achieve aims and objects of Trust. The property is old, occupied by old tenants and rent paid is on prevalent rate, which is very small amount. Tenants are also not punctual in payment of rent. Rental income is insufficient inasmuch as it has remained stagnant while expenses have gone up. Paras 9 and 10 of the plaint are not denied. Then in reply to para-11 of plaint it is said that defendants are male lineal descendant of Moti Lal Jhunjhunwala and appointed trustees by a majority of the then existing trustees. It is further stated that Mahabir Prasad Jhunjhunwala (now deceased) was also a trustee, but he resigned voluntarily. Alleged breach of trust is denied. The entire allegations contained in para-13 of the plaint are also denied. It is said that no cause of action has accrued and jurisdiction of the Court is also barred. The suit is under valued and Court fee paid is insufficient. 11. In additional plea, it is submitted that prayer of appointment of Mahabir Prasad Jhunjhunwala, as one of trustees, cannot be granted since he has already died on 29.12.1984, as such, the suit is liable to be dismissed for this reason. 12. Considering pleadings of parties and with the consent of counsel of the parties, Trial Court formulated following four issues: “1- Whether the defendants mismanaged the trust property, made a breach of trust and rendered themselves liable for the reliefs sought? 2- Whether the plaintiffs have no right to sue? 3- Whether the suit is covered by Section 92 C.P.C.? 4- to what relief, if any, are the plaintiffs entitled? 13. Trial Court answered issue 3 holding that suit is covered by Section 92 C.P.C. In respect to issue 2 it held that plaintiffs had a right to sue. 2- Whether the plaintiffs have no right to sue? 3- Whether the suit is covered by Section 92 C.P.C.? 4- to what relief, if any, are the plaintiffs entitled? 13. Trial Court answered issue 3 holding that suit is covered by Section 92 C.P.C. In respect to issue 2 it held that plaintiffs had a right to sue. Thereafter, the substantial issue i.e. issue 1 was considered and Trial Court answered the same in favour of plaintiffs holding that Trust is being usurped and mismanaged at the hands of defendants who are manipulating, committing maladministration and malappropriation of Trust. In the result, issue 4 was also answered in favour of plaintiff and the suit was decreed with the direction as noticed above. 14. Though in memo of appeal several grounds have been taken to assail the impugned judgment and decree of Court below, but Shri Arun Kumar Gupta, learned counsel appearing on behalf of defendants-appellants, raised only one point for adjudication of this appeal, and that is, “whether Civil Court at Kanpur had territorial jurisdiction to entertain the aforesaid suit”. 15. He contended that admittedly Trust in question was registered under the provisions of Bombay Act, 1950 (Bombay Act No. XXIX of 1950). It is a provincial Act enacted with the assent of President of India and published in Bombay Government’s Gazette on 14th August, 1950. Act, 1950. Bombay Act, 1950 was enacted by Provincial Legislation of Bombay (now State of Maharashtra) to regulate and to make better provisions for the administration of public religious and charitable trusts in the State of Bombay. It applies to a “public trust” or a “class of public trust” from the date specified under Section 1(4). 16. Shri Gupta referred to, specifically, Sections 41 A, 50, 50 A, 51, 52, 66, 80 of Act, 1950 to contend, if there is any allegation of breach of terms of public trust or mismanagement etc. which is registered and governed by Bombay Act, 1950, the power is vested in Charity Commissioner or Deputy or Assistant Charity Commissioner to make necessary inquiry into the matter and pass appropriate orders. which is registered and governed by Bombay Act, 1950, the power is vested in Charity Commissioner or Deputy or Assistant Charity Commissioner to make necessary inquiry into the matter and pass appropriate orders. He also referred to Section 41D (5), (6) and (7) of Bombay Act, 1950 to show that against the order of Charity Commissioner etc., aggrieved person may avail remedy before Court and against the decision of Court, further appeal lie in High Court under sub-section (6) of Section 41 D. 17. Various provisions referred to by learned counsel for the defendants-appellants read as under: “41A.(1) Subject to the provisions of this Act, the Charity Commissioner may from time to time issue directions to any trustee of a public trust or any person connected therewith, to ensure that the trust is properly administered, and the income thereof is properly accounted for or duly appropriated and applied to the objects and for the purposes of the trust; and the Charity Commissioner may also give directions to the trustees or such person if he finds that any property of the trust is in danger of being wasted, damaged, alienated or wrongfully sold, removed or disposed of. (2) It shall be the duty of every trustee or of such person to comply with the directions issued under sub-section (1). 41D (1)..................................... (2)............................................. (3)............................................ (4)......................................... (5) A trustee, aggrieved by an order made under sub-section (1) may, within ninety days from the date of communication of the order of suspension, removal or dismissal, apply to the Court against such order. (6) An appeal shall lie to the High Court against the decision of the Court under sub-section (5) as if such decision was a decree from which an appeal ordinarily lies. (7) The order of the Charity Commissioner shall, subject to any order of the Court or in appeal, be final. (6) An appeal shall lie to the High Court against the decision of the Court under sub-section (5) as if such decision was a decree from which an appeal ordinarily lies. (7) The order of the Charity Commissioner shall, subject to any order of the Court or in appeal, be final. 50- In any case,- (i) where it is alleged that there is a breach of a public trust, negligence, misapplication or misconduct on the part of a trustee or trustees, (ii) where a direction or decree is required to recover the possession of or to follow a property belonging or alleged to be belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from a trustee, extrustee, alienee, trespasser or any other person including a person holding adversely to the public trust but not a tenant or licensee, (iii) where the direction of the Court is deemed necessary for the administration of any public trust, or (iv) for any declaration or injunction in favour of or against a public trust or trustee or trustees or beneficiary thereof, the Charity Commissioner after making such enquiry as he thinks necessary, or two or more persons having an interest in case the suit is under subclauses (i) to (iii), or one or more such persons in case the suit is under subclause (iv) having obtained the consent in writing of the Charity Commissioner as provided in Section 51 may institute a suit whether contentions or not in the Court within the local limits of whose jurisdiction the whole or part of the subject-matter of the trust is situate, to obtain a decree for any of the following reliefs : (a) an order for the recovery of the possession of such property or proceeds thereof; (b) the removal of any trustee or manager; (c) the appointment of a new trustee or manager; (d) vesting any property in a trustee; (e) a direction for taking accounts and making certain enquiries; (f) an order directing the trustees or others to pay to the trust the loss caused to the same by their breach of trust, negligence, misapplication, misconduct or willful default; (g) a declaration as to what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust; (h) a direction to apply the trust property or its income cypres on the lines of Section 56 if this relief is claimed alongwith any other relief mentioned in this section; (i) a direction authorising the whole or any part of the trust property to be let, sold, mortgaged or exchanged or in any manner alienated on such terms and conditions as the Court may deem necessary; (j) the settlement of scheme, or variations or alterations in a scheme already settled; (k) an order for amalgamation of two or more trusts by framing a common scheme for the same; (l) an order for winding up of any trust and applying the funds for other charitable purposes; (m) an order for handing over of one trust to the trustees of some other trust and deregistering such trust; (n) an order exonerating the trustees from technical breaches, etc.; (o) an order varying, altering, amending or superseding any instrument of trust; (p) declaring or denying any right in favour of or against, a public trust or trustee or trustees or beneficiary thereof an issuing injunctions in appropriate cases; or (q) granting any other relief as the nature of the case may require which would be a condition precedent to or consequential to any of the aforesaid reliefs or is necessary in the interest of the trust; Provided that no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust, except in conformity with the provisions thereof: Provided further that, the Charity Commissioner may instead of instituting a suit make an application to the Court for a variation or alteration in a scheme already settled: Provided also that, the provisions of this section and other consequential provisions shall apply to all public trusts, whether registered or not or exempted from the provisions of this Act under sub-section (4) of Section 1. 50 A. (1) Notwithstanding anything contained in Section 50, where the Charity Commissioner has reason to believe that, in the interest of the proper management or administration of a public trust, a scheme should be settled for it, or where two or more persons having interest in a public trust make an application to him in writing in the prescribed manner that, in the interest of the proper management or administration of a public trust, a scheme should be settled for it, the Charity Commissioner may, if, after giving the trustees of such trust due opportunity to be heard, he is satisfied that it is necessary or expedient so to do, frame a scheme for the management or administration of such public trust. (2) Where the Charity Commissioner is of opinion that in the interest of the proper management or administration, two or more public trusts may be amalgamated by framing a common scheme for the same, he may, after- (a) publishing a notice in the Official Gazette and also if necessary in any newspaper which in the opinion of the Charity Commissioner is best calculated to bring to the notice of persons likely to be interested in the trust with a wide circulation in the region in which the trust is registered, and (b) giving the trustees of such trusts and all other interested persons due opportunity to be heard, frame a common scheme for the same. (3) The Charity Commissioner may, at any time, after hearing the trustees, modify the scheme framed by him under sub-section (1) or sub-section (2). (4) The scheme framed under sub-section (1) or sub-section (2) or modified under sub-section (3) shall, subject to the decision of the competent Court under Section 72, have effect as a scheme settled or altered, as the case may be, under a decree of a Court under Section 50. 51. (1) If the persons having an interest in any public trust intend to file a suit of the nature specified in Section 50, they shall apply to the Charity Commissioner in writing for his consent. 51. (1) If the persons having an interest in any public trust intend to file a suit of the nature specified in Section 50, they shall apply to the Charity Commissioner in writing for his consent. If the Charity Commissioner after hearing the parties and making such enquiries (if any) as he thinks fit is satisfied that there is a prima facie case, he may within a period of six months from the date on which the application is made, grant or refuse his consent to the institution of such suit. The order of the Charity Commissioner refusing his consent shall be in writing and shall state the reasons for the refusal. (2) If the Charity Commissioner refuses his consent to the institution of the suit under sub-section (1) the persons applying for such consent may file an appeal to the Maharashtra Revenue Tribunal constituted under the Bombay Revenue Tribunal Act, 1957, in the manner provided by this Act. (3) In every suit filed by persons having interest in any trust under Section 50, the Charity Commissioner shall be a necessary party. (4) Subject to the decision of the [Maharashtra Revenue Tribunal] in appeal under Section 71, the decision of the Charity Commissioner under sub-section (1) shall be final and conclusive. 52. [(1)] Notwithstanding anything contained in the Code of Civil Procedure, 1908, the provisions of Sections 92 and 93 of the said Code shall not apply to the public trusts. [(2) If on the date of the application of the Act to any public trust any legal proceedings in respect of such trust are pending before any Civil Court of competent jurisdiction] to which the Advocate General or the Collector exercising the powers of the Advocate General is a party, the Charity Commissioner shall be deemed to be substituted in those proceedings for the Advocate General or the Collector, as the case may be, and such proceedings shall be disposed of by such Court. (3) Any reference to the Advocate General] made in any instrument, scheme, order or decree of any Civil Court of competent jurisdiction made or passed, whether before or after the said date, shall be construed as reference to the Charity Commissioner. 66. (3) Any reference to the Advocate General] made in any instrument, scheme, order or decree of any Civil Court of competent jurisdiction made or passed, whether before or after the said date, shall be construed as reference to the Charity Commissioner. 66. Whoever contravenes any provision of any of the sections mentioned in the first column of the following table shall, on conviction, for each such offence be punished with fine which may extend to the amount mentioned in that behalf in the third column of the said table. Explanation.—The entries in the second column of the said table headed “subject “ are not intended as the definitions of offences described in the section mentioned in the first column or even as abstracts of these sections, but are inserted merely as references to the subject of the sections, the numbers of which are given in the first column : 80. 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, and in respect of which the decision or order of such officer or authority has been made final and conclusive. 18. He, therefore, submitted that even if property of Trust situate in different parts of the country, including Kanpur, but since the entire legislative control of Trust, its administration and functions etc. was within provincial statue i.e. Bombay Act, 1950 and that the remedies under the said Act were available, therefore, suit under Section 92 C.P.C was barred and in any case the Court at Kanpur had no territorial jurisdiction to entertain the aforesaid suit. 19. Per contra, Shri V. Sahai, learned counsel appearing for plaintiffs-respondents contended that objection regarding territorial jurisdiction does not go to the root and if not raised and pressed before Trial Court, it cannot be allowed to be raised for the first time in appeal or execution. In support of his submission, he placed reliance on decisions of Apex Court in Hira Lal Patni v. Sri Kali Nath, AIR 1962 SC 199 , Bahrein Petroleum Co. Ltd. v. P.J. Pappu and another, AIR 1966 SC 634 , Koopilan Uneen’s daughter Pathumma and others v. Koopilan Uneen’s Son Kuntalan Kutty dead by Lrs and others, AIR 1981 SC 1683 , R.S.D.V. Finance Co. Ltd. v. P.J. Pappu and another, AIR 1966 SC 634 , Koopilan Uneen’s daughter Pathumma and others v. Koopilan Uneen’s Son Kuntalan Kutty dead by Lrs and others, AIR 1981 SC 1683 , R.S.D.V. Finance Co. Pvt. Ltd. v. Shree Vallabh Glass Works Ltd., AIR 1993 SC 2094 . 20. Thus the points for determination which have arisen in this appeal for its adjudication are: (1) whether Trial Court at Kanpur had territorial jurisdiction to entertain and decide aforesaid suit? (2) whether suit instituted otherwise was barred in view of the adjudicatory forum specifically provided in Bombay Act,1950? (3) whether defendants-appellants can raise aforesaid two objections in this appeal? 21. We propose to consider third question first since answer thereto if goes against appellants, it will not be necessary to answer questions first and scond and that would be answered only when answer of question three is affirmative and in favour of defendants-appellants. 22. In para-9 of written statement, defendants-appellants while answering para-15 of the plaint have raised objection regarding jurisdiction of Trial Court. In para-15 of the plaint, plaintiffs-respondents have explained as to how jurisdiction of Civil Court at Kanpur comes and it reads as under “15. That the cause of action of the facts narrated above accrued to the plaintiffs on 1.1181 13th March,1982 and prior to it also when they made an agreement to sell of the Bombay trust property in favour of Hazi Mastan, and thereafter every day within the jurisdiction of this Court as one of the trust property that is 52/1 Moti Bhawan, Collectorganj, Kanpur is situate within the jurisdiction of this Hon’ble Court.” 23. In reply thereto defendants-appellants in para-9, while denying the same, have specifically stated that jurisdiction of Court is barred. However, Trial Court while framing issues, has not referred to this para of pleadings wherein its jurisdiction was specifically objected by defendants-appellants. It was a serious issue. The plaintiffs sought to specify territorial jurisdiction by stating in para-15 that some of the property of Trust lies at Kanpur, therefore, Court at Kanpur had jurisdiction, but this was specifically disputed by defendants-appellants and, hence, it was necessary for the Court below to consider and decide this dispute. 24. It was a serious issue. The plaintiffs sought to specify territorial jurisdiction by stating in para-15 that some of the property of Trust lies at Kanpur, therefore, Court at Kanpur had jurisdiction, but this was specifically disputed by defendants-appellants and, hence, it was necessary for the Court below to consider and decide this dispute. 24. In the memorandum of appeal, appellants have specifically taken this ground stating that Trust was registered under Bombay Act, 1950 and Civil Court at Kanpur had no jurisdiction to entertain dispute pertaining to aforesaid Trust. Grounds 1 and 2 of memorandum of appeal read as under: “1. Because the Trust has its registered office at Bombay and is registered under the Bombay Public Trusts Act, 1950, the suit was not maintainable. 2. Because at any rate the learned District Judge at Kanpur had no jurisdiction in the matter. 25. Learned counsel appearing for plaintiffs-respondents however contended that defendants-appellants may have objected territorial jurisdiction of Trial Court in their plea in written statement, but did not press this objection either at the time of framing of issues or subsequently, hence, cannot be allowed to raise this plea in appeal in view of specific provision in Section 21 C.P.C. “21. Objection to jurisdiction.—[(1)] No objection as to the place of suing shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity and in all cases where issues are settled at or before such settlement, and unless there has been a consequent failure of justice. (2) No objection as to the competence of a Court with reference to the pecuniary limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the Court of first instance at the earliest possible opportunity, and, in all cases where issues are settled, at or before such settlement, and unless there has been a consequent failure of justice. (3) No objection as to the competent of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice. 26. (3) No objection as to the competent of the executing Court with reference to the local limits of its jurisdiction shall be allowed by any Appellate or Revisional Court unless such objection was taken in the executing Court at the earliest possible opportunity, and unless there has been a consequent failure of justice. 26. One of conditions to attract Section 21 (1) C.P.C. is that objection with regard to place of suit should have been taken at the earliest possible opportunity. In present case such objection was taken by appellants in written statement, as already noticed above. 27. In Bahrein Petroleum Co. Ltd. (supra) Court has said that Section 21 C.P.C. is a statutory recognition of the principle that defect as to the place of suing may be waived by defendant. Court has observed that defendant, if allows Trial Court to proceed to give judgment without raising objection as to place of suing and takes chance of a verdict in his favour, he clearly waives objection and will not be subsequently permitted to raise it. It is even possible to say that long and continued participation by defendant in proceedings without any protest may, in an appropriate case, amount to a waiver to objection. 28. In Koopilan Uneen’s daughter Pathumma (supra) Court has observed that an objection to the place of suing may be entertained by an appellate Court subject to fulfillment of three conditions which are essential and they are: (1) The objection was taken in the Court of first instance. (2) It was taken at the earliest possible opportunity and in cases where issues are settled, at or before such settlement. (3) There has been a consequent failure of justice. 29. In R.S.D.V. Finance Co. Pvt. Ltd. (supra) the above view taken in Koopilan Uneen’s daughter Pathumma (supra) was reiterated. 30. In order to consider Section 21 C.P.C. and the exposition of law discussed above, we find that it would be attracted only when the objection with regard to place of suing was not taken in the Trial Court and an attempt is made to raise this objection for the first time before the appellate or revisional Court. The satisfaction of various conditions under Section 21 (1) and (2) C.P.C. would be attracted only when the objection with regard to territorial jurisdiction is not taken at the first instance before Trial Court and not otherwise. The satisfaction of various conditions under Section 21 (1) and (2) C.P.C. would be attracted only when the objection with regard to territorial jurisdiction is not taken at the first instance before Trial Court and not otherwise. As we have already said, in the present case, objection with regard to territorial jurisdiction was taken in the pleadings before the Court below but it has either been ignored by Court below or unnoticed for the reason that no issue was framed on this question and even parties or their counsel did not bring this omission to the notice of the Court below. In these circumstances it cannot be said that the objection raised with regard to jurisdiction of the Court at Kanpur cannot be pressed before this Court and it is barred by the conditions provided in Section 21 C.P.C. since they are not satisfied. We answer the question No. 3 accordingly and in favour of the appellants. 31. It takes us to first question whether Trial Court at Kanpur had territorial jurisdiction or not. Shri Gupta, learned counsel for appellants contended that since entire Trust activities are confined and controlled by a provincial statue i.e. Bombay Act, 1950, therefore, no Civil Court except the one at Bombay has jurisdiction to entertain the suit, involving question of maladministration of the Trust or appointment or removal of trustees etc. We find no substance in the submission. 32. Section 41 of Bombay Act, 1950 confers power upon Charity Commissioner to issue directions to any trustee or any person connected with the public trust, ensuring proper administration of Trust etc. In case such direction is issued, trustee or such person is obliged to comply the same. Under Section 41D if a complaint is made by any person interested in the trust, or on receipt of a report after inquiry under Section 41B, Charity Commissioner has been conferred with the powers of suspension, removal or dismissal of any trustee of the public trust concerned. Against such order of Commissioner, if any passed, further remedy has been provided to the aggrieved trustee to approach the Court and thereafter if he is further aggrieved to appeal in the High Court. None of these eventualities is attracted in the case in hands since there is no order passed by Charity Commissioner under the said provisions. 33. Against such order of Commissioner, if any passed, further remedy has been provided to the aggrieved trustee to approach the Court and thereafter if he is further aggrieved to appeal in the High Court. None of these eventualities is attracted in the case in hands since there is no order passed by Charity Commissioner under the said provisions. 33. Section 51 of Bombay Act, 1950 deals with the question of suit by or against or relating to public trust or trustee or others. It enables Charity Commissioner to file suit after making such inquiry as he thinks necessary for any declaration in favour of or against the public trust or trustee or beneficiary. Similarly, Charity Commissioner may file a suit where conditions specified under sub-clause (i)(ii)(iii) of Section 50 are satisfied or attracted. Similar power to institute a suit has also been conferred upon individual’s. Section 50 provides that two or more persons having an interest in the trust may file suit in respect to the situation under sub-clause (i)(ii)(iii); or one or more interested persons if it is under sub-cause (iv). They can file suit in the Court within the local limit of whose jurisdiction, whole or part of the subject-matter of trust is situated. The relief which can be sought in the aforesaid suit may be in respect to removal of any trustee or manager or appointment of of a new trustee or manager etc. Therefore, a suit can be filed by two or more persons in respect to the issues under sub-cause(i)(ii)(iii) of Section 50 in a Court within whose jurisdiction whole or part of the subject-matter of trust is situate. 34. The term “subject-matter” as such is not defined in Bombay Act, 1950, but the word “situate” shows that the subject-matter of trust would include within itself the property of trust. Therefore, suit could have been filed by interested persons in the Court where part of property of Trust is situated. 35. In the present case, admittedly, some property of Trust is situated in Kanpur. Therefore, Civil Court at Kanpur, within whose local limit/jurisdiction, part of property of Trust situate, had jurisdiction to entertain suit. 36. The question, whether permission of Charity Commissioner as provided under Section 51 has been obtained or not, we find cannot be looked into since no such objection was raised before the Court below. Therefore, Civil Court at Kanpur, within whose local limit/jurisdiction, part of property of Trust situate, had jurisdiction to entertain suit. 36. The question, whether permission of Charity Commissioner as provided under Section 51 has been obtained or not, we find cannot be looked into since no such objection was raised before the Court below. Since it is a question of fact, we shall not allow it to be raised for the first time before this Court in appeal and that too in absence of any pleading. The question 1 therefore is answered against appellants and in favour of respondents. 37. Coming to question 2 since statue itself permits filing of a suit and subject-matter of suit, in the case in hand, is squarely covered under Section 50, it cannot be said that the suit was otherwise barred. This question, therefore, is also answered against appellants. 38. No further point has been raised. 39. In view of above discussion, we find no fault with the judgment and decree impugned in this appeal. The appeal is devoid of merits. Dismissed with costs throughout. —————