VIJAY PULLARWAR & ORS. versus SHRI HANUMAN DEOSTHAN,A PUBLIC TRUST THROUGH ITS TRUSTEES on 16 November 2018

[2018] 13 S.C.R. 763

VIJAY PULLARWAR & ORS.

v.

SHRI HANUMAN DEOSTHAN, A PUBLIC TRUST THROUGHITS TRUSTEES

(Civil Appeal No. 7789 of 2011)

NOVEMBER 16, 2018

[A. M. KHANWILKAR ANDDR. DHANANJAYA Y CHANDRACHUD, JJ.]

Maharashtra Public Trusts Act, 1950:

ss. 21(2), 22(3), 26, 36, 41(2), 50, 50A, 51(4) and 79(2) –Suit by respondent/plaintiff (a Trust) – For possession of suit propertyon the basis of title – Plaintiff’s case was that the suit propertyoccupied by the predecessors of the defendants/appellants was theproperty of the presiding deity and was managed by the Trustees inwhom it vested for management – Trial court decreed the suit –First appellate court after re-appreciating the evidence reversedthe finding of fact recorded by the trial court – High court in secondappeal restored the decree passed by the trial court – On appeal,held: The suit property was a trust property – However, procedureenvisaged u/ss. 50 and 51 has not been complied with – The questionswhether the suit property was the property of the Trust and whetherit should be recorded as the property of the Trust was a matterexclusively within the domain of the Charity Commissioner – Theproperty registered as Public Trust and the property occupied bythe defendants (suit property) are two different properties – Thus,the suit property is not the property of the plaintiff/Trust – Therefore,the suit is liable to be dismissed.

Allowing the appeal, the Court

HELD: 1. The factum of existence of the trust and the trustproperty is a matter of enquiry for registration envisaged underSection 19 of the Maharashtra Public Trust Act, 1950. Oncompletion of such enquiry, the competent authority is requiredto record its findings with the reasons therefor, in terms of Section20 of the 1950 Act. After complying with the prescribed formalities

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Aby the applicant and upon the findings so recorded during theenquiry becoming final, the said authority is obliged to makeentries in the register kept for that purpose as per Section 21(1)of the 1950 Act. Such entries become final and conclusive, subjectto any change to be recorded. This is predicated under Section21(2) of the 1950 Act. The Act provides for finality andBconclusiveness of the order passed by the Charity Commissionerin Sections 21(2), 22(3), 26, 36, 41(2), 51(4) and 79(2). For filinga suit concerning the public trust, procedure is provided inSection 50 of the Act. Furthermore, Section 80 of the 1950 Actposits a bar of jurisdiction of the civil court to decide or deal withCany question which by or under the Act is to be decided or dealtwith under the said Act. [Paras 19, 20, 21 and 22][779-C-D;780-B-D; F-G; 781-A-B]

Church of North India v. Lavajibhai Ratanjibhai andOthers (2005) 10 SCC 760 : [2005] 3 SCR 1037;DDhulabhai and Others v. The State of Madhya Pradeshand Another [1968] 3 SCR 662 – relied on.

2.1 The present suit is a suit for recovery of possession ofthe subject property on the basis of title claimed therein by theplaintiffs/respondents and being a property of the trust. However,Ethe procedure envisaged under Sections 50 and 51, obviously,has not been complied with. For, such permission has not beenproduced nor adverted to by the courts below. [Para 22][784-B-C]

2.2 As the plaintiffs/respondents have claimed title in theFsuit property, that claim could be answered on the basis of theregistration application of the trust, and schedule I regarding theregistered properties of the trust. Whether the property is aproperty of the trust and including the question as to whether itshould be so recorded as the property of the trust, is a matterexclusively within the domain of the Charity Commissioner.G[Para 23][784-C-E]

2.3 The application for registration of the public trustsubmitted on 31[st] August, 1953 (Exh.63), the subsequentapplication for registration submitted under the provisions of the1950 Act dated 13[th] September, 1961 (Exh.64), the schedule IHrecording properties of the plaintiff public trust (Exh.43), the

enquiry report dated 13[th] October, 1954 (Exh.42), and theapplication for framing of the scheme and the order passed bythe Charity Commissioner dated 4[th] April, 1975 (Exh.46), noneof these document mention about “Padukas of Haridas Baba”installed in House No.878 or refer to House No.878 in CircleNo.3 being the trust property; but instead, make specificreference to House No.55 in Circle No.3, which is a completelydifferent property. These documents also do not advert to thedocument dated 23[rd] May, 1946 (Exh.41), allegedly creating aPanch Committee in respect of the suit House No.878 in CircleNo.3. [Para 25][784-G-H; 785-A-B]

2.4 The finding of fact recorded by the First Appellate Courtregarding the two properties have been brushed aside by theHigh Court on the specious asumption that it is a case of mis-description of the property in the official register of public trust.That, however, was not the case pleaded much less proved bythe plaintiffs/respondents. Such finding recorded by the HighCourt is a case of manifest error or error apparent, if not perverse.The High Court could not have disregarded the registrationapplication and the description of the house number given inschedule I as the registered property of the public trust, which isHouse No.55 in Circle No.3. It was for the plaintiffs/respondentsto plead and prove that House No.55 shown in schedule I asproperty of the plaintiff trust is the same as House No.878 inCircle No.3, which description has been given in the plaint as thesuit house. Having failed to establish that fact, no fault can befound with the finding recorded by the First Appellate Court, thatthe respondent Trust had no causal connection with House No.878in Circle No.3 occupied by the defendants/appellants. Thus, itmust necessarily follow that the suit for possession (of HouseNo.878 in Circle No.3) instituted by the plaintiffs/respondentson the basis of title, was devoid of merits. [Para 25][785-B-F]

2.5 Therefore, the Court upholds the finding of factrecorded by the First Appellate Court that the suit house occupiedby the defendants/appellants was recorded in the Municipalrecords during 1947 to 1950 as House No.878 belonging toHaridas Baba and that number was changed to House No.521 in1973-74 and converted to House No.152 till the institution of the AB

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Apresent suit. Further, it is clear that House No.55 in Circle No.3is entirely a different property. That has been registered as thetrust property of the respondent Trust, initially and then continuedto be shown as a registered property of the plaintiff trust untilthe institution of the suit. Such registration by the authoritiesunder the 1950 Act would bind the plaintiffs/respondents. TheBplaintiffs/respondents have not been able to produce anydocumentary evidence to establish the fact that the suit house(bearing House No.878 in Circle No.3, which later on becameHouse No.152 in Circle No.3 by the time the suit was instituted),was the property of the plaintiff trust. [Para 26][785-F-H;C786-A-B]

2.6 The High Court adverted to the relevant portion of thewritten statement to conclude that the defendants/appellants hadadmitted that the suit property was originally owned by HaridasBaba and that they were in possession in the capacity of caretakersDonly. Indeed, that admission can be discerned from the writtenstatement of the defendants as well as the oral evidence of DW-1. But that admission does not take the matter any further. It isnot possible to assume on the basis of that admission that the“suit house” (i.e. House No.878 in Circle No.3) is the propertyof the plaintiff trust. No documentary evidence has been producedEby the plaintiffs/respondents to establish the fact that the suithouse bearing House No.878 in Circle No.3 originally owned byHaridas Baba was recorded as the property of the plaintiff trustin the official records. The plea taken by the defendants in thewritten statement, however, is indicative of the fact that they F(defendants/appellants) were occupying House No.878 in CircleNo.3, which was originally owned by Haridas Baba and where hisPadukas had been installed. The written statement as well as theoral evidence of defendants/appellants clearly refute the claim ofthe plaintiffs/respondents. [Para 28][786-F-H;787-A-B]

G2.7 The High Court has selectively adverted to the portionof the written statement [sub-paras (b) to (d) of paragraph 11thereof] and not to the other portion of the same paragraph,namely sub-paras (e) to (g) which put across the stand of thedefendants/appellants including that the plaintiff trust has no causalconnection with the suit house bearing No.878 in Circle No.3.H[Para 28][787-C-D]

2.8 The plaintiffs/respondents were primarily obliged toestablish their title in the suit house bearing No.878 in CircleNo.3 where the Padukas of Saint Haridas Baba have beeninstalled, as being the property of the plaintiff trust. The plaintiffsmust succeed or fail on the title they establish; and if they fail todo so, they must fail to get the relief of possession irrespectiveof title of the defendant in the suit property. In the present case,no tangible evidence regarding title of plaintiff trust in the suithouse (House No.878 in Circle No.3) is forthcoming.[Para 29][787-D-F]

Brahma Nand Puri v. Naki Puri [1965] 2 SCR 233;Bajaranglal Shivchandrai Ruia v. Shashikant N. Ruia and Ors. (2004) 5 SCC 272 – relied on.

2.9 The High Court has completely misread the admissiongiven by DW 1. Inasmuch as, all it says is that the house numberhad changed every four years after revaluation. Further, the suithouse is in Circle No.3. This admission cannot be of any avail tothe plaintiffs much less to hold that the plaintiff trust has title inthe suit house bearing House No.878 in Circle No.3.[Para 30][787-F-G]

Case Law Reference

CIVIL APPELLATE JURISDICTION: Civil Appeal No. 7789of 2011.

From the Judgment and Order dated 24.10.2008 of the High Courtof Judicature at Bombay, Nagpur Bench, Nagpur in Second AppealNo. 364 of 1990.

Gagan Sanghi, Rameshwar Prasad Goyal, Advs. for the Appellants.D. K. Sinha, Raju Sonkar, Sanveer Mehlwal, Karunakar Mahalik,Advs for the Respondent.

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AThe Judgment of the Court was delivered by

A. M. KHANWILKAR, J. 1. This appeal is filed by the originaldefendants against the judgment and order of the High Court of Judicatureat Bombay, Nagpur Bench in Second Appeal No.364 of 1990 decidedon 24[th] October, 2008, whereby the High Court, in the second appeal,Brestored the decree of possession of the suit property passed by the trialcourt against the appellants, by setting aside the judgment and decreepassed by the District Court, Nagpur in Regular Civil Appeal No.564 of1983 dated 21[st] January, 1989.

2. The respondent No.1, Shri Hanuman Deosthan, is a public trustCduly registered under the provisions of the Bombay Public Trusts Act,1950 (presently known as Maharashtra Public Trusts Act, 1950) (forshort “1950 Act”). The respondents filed Special Civil Suit No.1127 of1978 in the Civil Court, Senior Division, Nagpur, for possession on thebasis of title. It was asserted that one Bansilal S/o Gangadin PerdeshiTeli, R/o Circle No.3 of Nagpur was the disciple of a Hindu saint by theDname of Haridas Baba Vishv. The said saint took Samadhi about 70years back before the institution of the suit. He had a “Math” situated inCircle No.3 in house bearing No.878, where his (Haridas Baba) Padukascame to be installed. It is stated that the said Bansilal was the ChiefWahiwatdar of the said Math and was looking after the pujas and utsavasEperformed in the Math. Before his death, which occurred in 1944, hehad asked his wife, Yashodabai, to look after and manage the Math andconduct puja and utsavas from time to time in his absence and keep theMath property in good condition from the income of the Math. He hadalso told his wife Yashodabai that after his death, she may appoint apanch committee in the event she was not in a position to look after theFaffairs of the Math herself. After 1946, Yashodabai executed a documentand appointed a panch committee for the proper management of theMath whilst she remained one of the trustees. That document wasregistered on 23[rd] May, 1946 (Exh.41). She had nominated five personsas panchas in the panch committee namely, Shri Badal S/o Giridharilal,GMohanlal Hanuman, Ramjiwan Kaluram, Nandideep Bhangavandin andOnkar Gandelal Pardeshi. Amongst them, Badal was to remain assarpanch. After his demise, one Chotelal Bhikaji Pardeshi assumed theoffice of Sarpanch.

3. It was further stated that except Ramjiwan Kaluram, all theHtrustees/panchas had expired by the time the suit was filed. Further, Chotelal Bhikaji Pardeshi, after taking over as sarpanch, made anapplication on 31[st] August, 1953 (Ex.63) to the appropriate authority forregistration as a public trust under the provisions of the Bombay PublicTrust Act. In that application, the description of the property of the trustwas given as per the schedule to the plaint, which property was amongstother properties registered as the property of the public trust. After theprovisions of the Bombay Public Trust Act, 1950 (Exh.64 dated 13[th]September, 1961) became applicable to the Vidarbha region of the Stateof Maharashtra, Chotelal got the trust registered under the 1950 Act,bearing P.T.R. No.A-50(N).

4. It is then stated that after the death of Chotelal Bhikaji Pardeshi,a change report was submitted to the local office of the public trust atNagpur which came to be rejected as no proper succession wasdocumented. Resultantly, the local persons having interest in the affairsof the Math preferred an application for framing of a scheme andappointment of trustees, being application No.71 of 1971. The DeputyCharity Commissioner, in exercise of powers under Section 50-A of the1950 Act framed a scheme and appointed five persons as trustees ofShri Hanuman Deosthan, namely, Bhayyalal Giridharilal, KashiramFakiraji Potbhare, Laxman Zingaraji Sapate, Navi Shukravari and NarayanTanbaji Kurkute vide order dated 4[th] April, 1975 (Exh.46). In short, therespondent asserted that the suit property occupied by the predecessorof the appellants, namely Wasudeo Pullarwar, was the property of thepresiding deity Shri Hanuman Deosthan and was managed by the trusteesin whom it vested for management. The occupant, Vasant Pullarwar,had no right, title or interest in the said house.

5. It is then stated that a notice was issued to defendant No.2/appellant No.1 (son of defendant No.1, the said Wasudeo Pullarwar),dated 4[th] November, 1977, calling upon him to pay the rent for the lastthree years ending October 1977 @ Rs.110/- per month, which rent wasrecovered by the previous trustees from the occupants of the suit house.Appellant No.1 sent a reply on 14[th] November, 1977, disputing that hewas a tenant or that he was liable to pay the rent to the respondent trust.He stated that he was living with his father who was paying the taxes ofthe suit house. It appears that the plaintiffs/respondents then caused tosend another notice to defendant No.1 Wasudeo Pullarwar dated 12[th]December, 1977, making a similar demand of rent from him, to whicheven he denied his liability to pay and also denied the title of the plaintiffs/

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Arespondents in respect of the suit house occupied by him. In this backdrop,the respondents filed a suit on 17[th] October, 1978 for possession of thesuit house from the defendants/appellants and for recovery of chargesfor occupation of the suit house during the relevant period. The suit forpossession is thus based on title.

B6. The appellants contested the suit by filing their written statementasserting that the plaintiffs/respondents have no locus to institute thesuit; and the suit was not maintainable due to absence of permission ofthe Charity Commissioner for filing suit for possession of immoveableproperty allegedly belonging to a public trust. It was denied that Bansilalwas the Wahiwatdar and was looking after the pujas and utsavasCperformed in the Math. It was then contended that the document allegedlyexecuted by Smt. Yashodabai on 23[rd] May, 1946 (Exh.41) was a shamand bogus document; and that one of the panchas - Ramjiwan Kaluram,was still alive, for which reason Chotelal could not claim to be an electedor nominated Sarpanch. Pertinently, it has been plainly stated in theDwritten statement that the suit house occupied by the defendants wasnot the property shown at the time of registration of Shri HanumanDeosthan, a public trust, and also, the same was not registered as theproperty of the said trust. The said trust was registered as a public trustwith only two properties mentioned in schedule I thereof. One of thehouse properties in Circle No.3 was House No.55, which has had noEcausal connection with the suit house occupied by the defendants/appellants, bearing House No.878.

7. It is thus denied that the suit house is the property of the presidingdeity of Shri Hanuman Deosthan. It is plainly asserted by the defendants/appellants that the suit house has been continuously and uninterruptedlyFoccupied by them for over 30 years and the defendant No.1 was lookingafter and managing the same, including carrying out repairs and renovation,performing pujas and utasavas in the suit house as Wahiwatdar of theproperty and paying municipal taxes. It is the case of the appellants thatthe suit house was the property of a private trust and it originally belongedGto saint Haridas Baba. Defendant No.1 was in possession of and hadbeen the occupant of the property for over 30 years before the institutionof the suit, as the Wahiwatdar. The appellants asserted that the respondentTrust was not the owner of the suit house and it had no causal connectiontherewith and in any case, could not oust the appellants/defendants fromthe suit house under the garb of a scheme framed on 4[th] April, 1975 byH

the Deputy Commissioner (Exh.46). Accordingly, the appellants prayedthat the suit ought to be dismissed with costs.

8. We may usefully reproduce paragraph 11 of the written statementwhich succinctly unveil the case of the appellants about their right tooccupy the “suit house” (i.e. H.No.878 in Circle No.3) and to reject theclaim of the plaintiffs/respondents concerning the suit house or havingany causal connection therewith leave apart having acquired any title interms of the scheme framed for the public trust.

9. We deem it necessary to reproduce the whole of paragraph 11of the written statement. For, the High Court has decided the matters inissue against the defendants/appellants only by referring to sub-paras(b), (c) and (d) thereof, as reproduced in paragraph 9 of the impugnedjudgment. Paragraph 11 reads thus:

“11. Paragraph

(b) Haridas was a great saint of his times. He died about 55 yearsago. He took Samadhi. The suit house (Kuti) belonged to Haridaswhich was not a Math, Padukas of Haridas were not installed byBansilal.

(c) The suit house was bearing House No.143 and then it waschanged as House No.492 and again this was changed as HouseNo.104 in Cir. No.3, Nagpur. Owner of the suit house was HaridasBairagi, the saint.

(d) In this suit house Padukas of Haridas are installed. Theplaintiff’s allegation that Bansilal was the Chief Wahiwatdar aredenied. The puja and uttaav of the Padukas of Haridas used to bedone by some disciples.

(e) It is emphatically denied that the suit house was or is a Math.It is denied that Bansilal, yashodabai, Chhotelal, alleged Sarpanchor the alleged Panch names in the alleged Deed dated 3.5.1946 orthe plaintiffs 1 to 5 were or are trustees. These above personshad or have no connection with the suit house or Padukas. Thealleged Deed, if any, dated 3.5.1946 is null, void, illegal and invalid.

(f) The suit house in circle No.3 at Nagpur and after it touchingto it, is a public tar-road passing north-south and its breadth isabout 50 feet east-west, from the suit house. There are manyhouses to the north of the suit house upto Fuwara Chowk, From A

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Chowk, another tar-road which is in east-west direction passes tothe west and after about 500 feet distance in separate locality ofCir. No.2 is a Hanuman Temple which has no connection to thesuit house in Cir. No.3 Nagpur. Both are different localities.

(g) It is denied that the defendants occupied the suit house aboutB12 years back as tenants from from former trustees or paid rent,as alleged. It is denied that the defendant occupied the suit housewith any alleged permission of any alleged former trustee on rentof Rs.110/- per month. The defendants are occupying the suithouse as of right and are in continuous possession for more than30 years as stated earlier openly, exclusively, peacefully peaceably,Cwithout interruption or disturbance from any one or from anyalleged trustees and none of them have been in possession duringsuch period. The defendant No.1 is about 83 years old.Defendants are ‘Pullarwar’. The suit house is not property of theplaintiff nor a public Trust property as is alleged. All the allegedDPublic Trust proceedings of whatever nature were withoutjurisdiction, null and void, under which the plaintiffs are trying tolay a claim to the suit house. There was no house No.55 allegedto the suit house; nor this was changed as House No.878. theplaintiffs’ alleged claim for the suit house does not stand in fact orlaw as contended. In none of the alleged proceedings theEdefendants were made parties, nor noticed.”

In view of the rival pleadings, the Trial Court framed in all 11 issues,which read thus:

“1) Do the plaintiffs prove the title of plaintiff No.1 to the suithouse?F

2) Do they prove that the deft. No.2 was occupying the same asa tenant?

3) Are the plffs. entitled to the occupation charges at the rate ofRs.110/-p.m.?

4) Whether the Charity Commissioner has declared that the suithouse is trust property?

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5) Does the deft. No.1 prove that he is occupying the suit housefor more than 30 years and perfect his title by adversePossession?

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VIJAY PULLARWAR v. SHRI HANUMAN DEOSTHAN,A PUBLIC TRUST [A. M. KHANWILKAR, J.]

6) Do the defts. Prove that the house belongs to Mahadeo DomajiKuthe?

7) Are the plffs. entitled to the possession?

8) What order and decree?

Additional Issues:

9) Whether the house in suit was a Math?

10) Whether the document dated 3.5.46 is null and void

11) Whether the proceedings under the Bombay Public trust Actare without jurisdiction?”

10. Both sides produced documentary as well as oral evidence insupport of their respective stands, which was duly considered by theTrial Court vide judgment and order dated 16[th] November, 1983. TheTrial Court accepted the claim of the plaintiffs/respondents that the “suithouse” (i.e. H.No.878) was the property of the public trust, namely, ShriHanuman Deosthan and the management of the property vested in thesaid trust. Further, the defendants/appellants had no right to occupy thesuit house despite the Trial Court having found that they were occupyingthe same for over 30 years before the institution of the suit. On thisfinding, the Trial Court partly decreed the suit by directing the defendants/appellants to hand over vacant possession of the suit house to the plaintiffs/respondents, while rejecting their claim for occupation charges. Theoperative order passed by the Trial Court reads thus:

“ORDER

The Plaintiff’s suit is decreed partly with proportionate costs.The defendants shall deliver vacant possession of the suit premisesto the plaintiff.

The Plaintiffs claim for occupation charges is dismissed.

An inquiry for future mesne profits under order 20, rule 12 CivilProcedure Code shall be carried separately.

Decree be drawn accordingly in terms of the above order.”

11. The appellants being aggrieved, filed Regular Civil AppealNo.564 of 1983 before the District Court at Nagpur. The District Court,after re-appreciating the oral and documentary evidence, was pleasedto reverse the finding of facts recorded by the Trial Court and instead,concluded that the “suit house” (i.e. H.No.878) was not the registeredproperty of Shri Hanuman Deosthan, a public trust duly registered underthe 1950 Act.

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A12. The First Appellate Court considered the efficacy of the oralevidence adduced by the plaintiffs/respondents to establish its title in thesuit house as also the documentary evidence. As regards the oralevidence, it found that the same was hopelessly poor and of personswho had no knowledge as to how Shri Hanuman Deosthan trust wasconstituted. Similarly, these persons had no knowledge whatsoever aboutBsaint Haridas Baba whose Padukas had been installed in the suit house.The person who could have spoken about those matters, namely RamjiwanKaluram, though available at the relevant time, was not examined as awitness, for reasons best known to the plaintiffs/respondents. Whiledissecting the documentary evidence relied upon by the parties in supportCof their claim, the appellate court in paragraphs 10 to 12 observed thus:

“10.Even if for the sake of argument, Exh.41 isadmitted in evidence and presumed that such a documentwas executed by Yashodabai, this document does notsupport the Plaintiffs. I will point out the help of otherdocuments to show that this particular document Exh.41pertains to the suit property but this suit property was nevertreated as property of the Plaintiff Trust since 1953 till thislitigation started.

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11. Exh.63 is the certified copy of the application, dated 31[st] August,1953 filed by Chhotelal before the Registrar of the Public Trustsfor registration as per order below Exh.42. In this applicationChhotelal had shown two temple and a house No.374 and a houseNo.369 of Circle No.2 and one house No.55 of Circle No.3 as theproperty of the said trust and this property was recorded in theregister of the property of the Public Trust maintained under theM.P. Public Trust Act. Exh.64 is application dated 13[th] September,1961 filed by Chhotelal for change report. In this also the sameproperty has been shown as property of the said trust. After deathof Chhotelal an application was made to the Deputy CharityCommissioner for framing a scheme for the management of thetrust. After holding enquiry the learned Deputy CharityCommissioner passed an order, dated 4[th] April, 1975 framing ascheme Exh.46 is a certified copy of that order. Annexure A tothis order shows the property of the trust in the register of theDeputy Charity Commissioner. It means the two houses in CircleNo.2 and a house No.55 of Circle No.3 were the only properties E

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of the trust even in 1975 when the scheme for management ofthe trust was framed and when the present trustees were appointed.

12. The Defendants have throughout maintained that the plaintiffTrust has nothing to do with a suit house bearing Municipal No.152situated in Circle No.3. In support of this, they have produceddocuments Exhs.56, 57 and 58 which are the certified copies ofthe relevant entries in the assessment register of the MunicipalCorporation. I am told that the document Exh.56 was in morethan one page but in the original record there appears only onepage of the Assessment Register and it is incomplete. Therefore,today the Defendants have produced another certified copy ofthe same record and it is Exh.20. This record goes back to 1910-11. It appears that originally the house of Haridas Bairagi wasgiven Municipal No.443. It was situated in Circle No.3 In 1914-15 house number was changed to 492. In 1922-23 it was givenhouse No.104. In 1947 to 1950 its house number was 878. In1957-58 it was house No.598 and it continued to be house No.598till it was changed to 521 in 1973-74 and it continued to be houseNo.152 till the institution of the present suit. From this record itwould be clear that during 1947 to 1950 its house number was878. Exh.41 the document purporting to have been executed byYashodabai also shows that the document was executed pertainingthe house No.878 belonging to Haridas Baba. As per this record,number of this house continued to be 878 till 1957-58 when thenumber was changed to 598, while in 1953 and again in 1961.Chhotelal had shown house No.55 of Circle No.3 as a property ofHanuman Deosthan. In this suit we are not concerned with theother properties of Hanuman Deosthan situated in Circle No.2Exh.57 and 58 is the record pertaining house No.55 of CircleNo.3. this record shows that house No.55 of Circle No.3 was theproperty of temple of Radhakishna and Ganpati and on behalf ofthat Temple one Ramlal Munnalal Halwai was shown to beproprietor. This record is available from 1947 onwards. Thisparticular property bears house No.55 from 1947 till 1961-62.From this it is clear that the house No.55 of Circle No.3 istotally different from the suit house which was the propertyof Haridas Bairagi. It is fairly conceded before me by Mr.Ghatpnde that temple of Radhakrishna and Ganpati may be A

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Adifferent institution than the property of Haridas Baba. In1952 when for the first time Hanuman Deosthan wasregistered as trust on application of Chhotelal, house No.55was different from the suit house which was bearing No.878at that time. It is conceded that there is no documentaryevidence to establish that the suit house was the propertyBof the Plaintiff Trust.”

13. The aforesaid view taken by the First Appellate Court and, inparticular, the findings of fact recorded on material issues came to beCreversed by the High Court in the second appeal, filed by the respondents.Initially, the said Second Appeal No.364 of 1990, was allowed by theHigh Court of Judicature at Bombay at Nagpur, without framing anysubstantial question of law, vide judgment and order dated 29[th] March,2004. That judgment was set aside by this Court on 17[th] December,2004 in SLP (C) No.10181/2004, at the instance of the defendants/Dappellants. The parties were relegated to the High Court for freshconsideration of the second appeal. The learned Single Judge of theHigh Court hearing the remanded appeal adverted to two substantialquestions of law as formulated in paragraph 7 of the impugned judgment,which read as follows:

E“1. Whether the findings recorded by the authorities under theBombay Public Trusts Act about the existence of the trust andthe trust property were final and conclusive and/or whether theappellate Court had justification to hold that the suit property didnot belong to the trust?

F2. Whether the admission of the defendants that the suit propertywas originally owned by Haridad Baba and that they had enteredin possession thereof in the capacity of caretaker of the suitproperty were binding on the defendants so as to establish thatthe property in question was part of the property originally ownedby Haridas Baba with respect to which the public trust wasGcreated?”

14. By the impugned judgment and order dated 24[th] October, 2008,the High Court allowed the second appeal preferred by the plaintiffs/respondents and restored the decree of possession passed by the TrialCourt. The High Court first analysed the pleadings and noted that theH

defendants/appellants in no uncertain terms admitted that saint HaridasBaba is the owner of the suit house and that his Padukas were installedin the suit house and were worshiped by his disciples. It then found thatit was common ground that Haridas Baba was the original owner of thesuit house and his disciples were taking care of the Math after his death.The High Court further noted that Bansilal never claimed to be the ownerof the suit house but only a trustee, who directed Smt. Yashodabai toappoint a panch committee to look after the affairs of the Math if needbe. The panch committee appointed by Smt. Yashodabai was nothingbut a board of trustees, as was evident from the document creating thepanch committee dated 23[rd] May, 1946 (Exh.41).

15. The High Court then noted that the defendants’ witness DW-1 Vijay in his evidence admitted that the ownership of the suit house wasof Haridas Baba and that the defendants/appellants, along with otherfamily members, were living therein as disciples of Haridas Baba anddid not set up title in themselves at all. It appears that Haridas Baba,who was the owner of the suit house, dedicated the property and createda private trust, which fact has been admitted by the defendants/appellantsin the written statement. On that basis, the High Court went on to concludethat the defendants/appellants admitted that the suit house was a trustproperty and therefore, it must be assumed to have been dedicated byHaridas Baba. After having said this, the High Court then went on toexamine the question as to whether the suit house was a property belongingto Shri Hanuman Deosthan, a public trust. While considering this issue,the High Court took note of the fact that the registered property of theHanuman Deosthan public trust did not include the description of thesuit house namely House No.878 in Circle No.3. The suit house belongingto the public trust was registered as House No.55 in Circle No.3. TheHigh Court “assumed” this to be a case of mis-description of the trustproperty in the register of the public trust. Accordingly, the finding offact recorded by the First Appellate Court on material issues came to bereversed by the High Court on the following reasoning:

“13. We have already seen that defendants do not deny thedescription of the suit property. They do not say that they are inpossession of any other property than the suit property. They admitthat suit property was owned by Haridas. I have already quotedthe evidence of D.W.1 Vijay in verbatim in which he admits thatthe assessment list Exh.56 is in respect of the suit house. Exh.56

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Ashows that house was recorded in the name of Haridas. Inexamination-in-chief Vijay admits that the house number of thesuit property is 492. Defendant No.1 had made an application tothe Municipal Council vide Exh.75. He raised an objection torecording the name of Hanuman Deosthan as owner in theMunicipal records. He claimed that he was the Wahiwatdar andBwas paying taxes and also brought to the notice of the MunicipalCouncil that this house is not entered in the register of publictrust. He also alleges that name of the trust is changed fromHaridas to Hanuman Deosthan and that the old name be retained.This clearly goes to show that defendants in fact knew that theCsuit house belongs to Hanuman Deosthan Trust. It is registered inthe Municipal Record as such and he wanted that name of theHanuman Deosthan be removed and that he was ready to paythe taxes. All this evidence clearly goes to show that the defendantsknow that the suit property is entered in the name of plaintiff trustand they are claiming possession of that property alone. With thisDdocument there is no manner of doubt that the suit property isowned by the plaintiff public trust. Defendants admission mustbind them. The learned Judge of the first appellate Court did notconsider the evidence in proper perspective. He erred in negativingthe claim of plaintiff because the correct description of the suitEproperty is not given in the trust register. He should haveindependently considered if the suit property is owned by plaintiffs.”

16. The High Court then negatived the preliminary objection thatthe entire appeal had abated as the legal representatives of legalrepresentative Nos. 1 and 2 of the deceased defendant No.1 were notFbrought on record. The High Court took the view that since the stand ofthe defendant No.1 was that he was occupying the suit house only asWahiwatdar, his rights as Wahiwatdar ended upon his death. For, theright of Wahiwatdar could not be claimed as hereditary. The High Courtthus concluded that the appeal filed by the plaintiffs/respondents couldstill proceed on the aforesaid basis. Accordingly, the High Court reversedGthe decision of the First Appellate Court and restored the decree passedby the Trial Court for delivery of possession of the suit house by thedefendants/appellants to the plaintiffs/respondents. This decision is thesubject matter of the challenge in the present appeal.

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17. We have heard Mr. Gagan Sanghi, learned counsel appearingfor the appellants and Mr. D.K. Sinha, learned counsel appearing for therespondents.

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18. The moot question is: whether the High Court exceeded itsjurisdiction under Section 100 of the Code of Civil Procedure in reversingthe judgment and decree passed by the First Appellate Court on thebasis of independent findings and reasons recorded by it, and moreso,not specifically answering the substantial questions of law formulatedfor its consideration. If it were to answer the substantial questions oflaw in seriatim, perhaps the conclusion would have been completelydifferent.

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19. Reverting to the first substantial question of law, the factumof existence of the trust and the trust property is a matter of enquiry forregistration envisaged under Section 19 of the 1950 Act, which readsthus:

“19. Inquiry for registration :

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On the receipt of an application under section 18, or upon onapplication made by any person having interest in a public trust oron his own motion, the Deputy or Assistant Charity Commissionershall make an inquiry in the prescribed manner for the purpose ofascertaining:

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(i) whether a trust exists and whether such trust is a publictrust,

(ii) whether any property is the property of such trust,

(iii) whether the whole or any substantial portion of the subjectF-matter of the trust is situate within his jurisdiction,

(iv) the names and addresses of the trustees and manager ofsuch trust,

(v) the mode of succession to the office of the trustee of suchtrust, G

(vi) the origin, nature and object of such trust,

(vii) the amount of gross average annual income and expenditureof such trust, and [2018] 13 S.C.R.

A(viii) any other particulars as may be prescribed under sub-section 5 of section 18.”

20. Clause (i) of Section 19 is about an enquiry of a fact as towhether a trust exists and whether such trust is a public trust. Clause (ii)Bis an enquiry about whether any (stated) property is the property of suchtrust. On completion of such enquiry, the competent authority is requiredto record its findings with the reasons therefor, in terms of Section 20 ofthe 1950 Act. After complying with the prescribed formalities by theapplicant and upon the findings so recorded during the enquiry becomingCfinal, the said authority is obliged to make entries in the register kept forthat purpose as per Section 21(1) of the 1950 Act. Such entries becomefinal and conclusive, subject to any change to be recorded. This ispredicated under Section 21(2) of the 1950 Act. Further, Section 79 ofthe same Act may be of some relevance. The same reads thus:- D“79. Decision of property as Public trust property

(1) Any question, whether or not a trust exists and such trustis a public trust or particular property is the property of such trust,shall be decided by the Deputy or Assistant Charity Commissioneron the Charity Commissioner in appeal as provided by this Act.

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(2) The decision of the Deputy or Assistant CharityCommissioner or the Charity Commissioner in appeal, asthe case may be, shall, unless set aside by the decision ofthe Court on application or of the High Court in appeal befinal and conclusive.”

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This Court in Church of North India Vs. Lavajibhai Ratanjibhai andOthers[1] has noted that the 1950 Act provides for finality andconclusiveness of the order passed by the Charity Commissioner inSections 21(2), 22(3), 26, 36, 41(2), 51(4) and 79(2). The Court relyingGon Dhulabhai and Others Vs. The State of Madhya Pradesh andAnother[2] expounded that such finality clause would lead to a conclusionthat the civil court’s jurisdiction is excluded if there is adequate remedyto do what the civil courts would normally do in a civil suit. The Court 1 (2005) 10 SCC 760

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VIJAY PULLARWAR v. SHRI HANUMAN DEOSTHAN,A PUBLIC TRUST [A. M. KHANWILKAR, J.]

also held that the question as regards existence of a trust is a matterwhich squarely falls within the purview of the Act.

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21. Furthermore, Section 80 of the 1950 Act posits a bar ofjurisdiction of the civil court to decide or deal with any question which byor under the Act is to be decided or dealt with under the said Act. Section80 of 1950 Act, reads thus:

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“-80. Bar of jurisdiction :

Save as expressly provided in this Act, no Civil Court shall havejurisdiction to decide or deal with any question which is by or underthis Act to be decided or dealt with by any officer or authorityunder this Act, and in respect of which the decision or order ofsuch officer or authority has been made final and conclusive.”

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22. Even for filing a suit concerning the public trust, Section 50 ofthe Act provides as under:

“50. Suit by or against or relating to public trusts or trusteesor others D

In any case,- -

(i) where is alleged that there is a breach of a public trust,negligence, misapplication or misconduct on the part of atrustee or trustees,E

(ii) where a direction or decree is required to recoverthe possession of or to follow a property belonging oralleged to be belonging to a public trust or theproceeds thereof or for an account of such propertyor proceeds from a trustee, ex--trustee, alienee,trespasser or any other person including a personholding adversely to the public trust but not a tenantor licensee, F

(iii) Where the direction of the Court is deemed necessary forthe administration of any public trust, or 53

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(iv) for any declaration or injunction in favour of or againsta public trust or trustee or trustees or beneficiarythereof, the Charity Commissioner after making such enquiry as he thinksnecessary, or two or more persons having an interest in case the suit is H

Aunder sub- clauses ( i) to (iii) , or one or more such persons in case thesuit is under sub -clause (iv) having obtained the consent in writing ofthe Charity Commissioner as provided in section 51 may institute a suitwhether contentious or not in the Court within the local limits of whosejurisdiction the whole or part of the subject matter of the trust is situate,to obtain a decree for any of the following relief’s :- B

(a) an order for the recovery of the possession of suchproperty or proceeds thereof; (b) the removal of any trustee or manager; I the appointment of a new trustee or manager; (d) vesting any property in a trustee; C

(e) a direction for taking accounts and making certain enquiries; (f) an order directing the trustees or others to pay to the trustthe loss caused to the same by their breach of trust, negligence,misapplication, misconduct or willful default;

D(g) a declaration as to what proportion of the trust property orof the interest therein shall be allocated to any particular objectof the trust; (h) a direction to apply the trust property or its income cy preson the lines of section 56 if this relief is 54 claimed along withany other relief mentioned in this section; E

( I ) a direction authorising the whole or any part of the trustproperty to be let, sold, mortgaged or exchanged or in anymanner alienated on such terms and conditions as the courtmay deem necessary; F(j) the settlement of scheme, or variation or alteration in ascheme already settled, (k) an order for amalgamation of two or more trusts by framinga common scheme for the same;

(l) an order for winding up of any trust and applying the fundsfor other charitable purposes; G

(m) an order for handing over of one trust to the trustees ofsome other trust and deregistering such trust; (n) an order exonerating the trustees from technical breaches,etc; H

(o) an order varying , altering, amending or superseding anyinstrument of trust; (p) declaring or denying any right in favour of or against, apublic trust or trustee or trustees or beneficiary thereof anissuing 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 orconsequential to any of the aforesaid relief’s or is necessaryin the interest of the trust:

Provided that no suit claiming any of the reliefs specified inthis 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 ofinstituting a suit make an application to the Court for a variation oralteration in a scheme already settled :

Provided also that, the provisions of this section and otherconsequential provisions shall apply to all public trusts, whetherregistered or not or exempted from the provisions of this Act undersub-section (4) of section 1.”

And again Section 51 provides as under:

“51. Consent of Charity Commissioner for institution of suit

(1) If the persons having an interest in any public trust intendto file a suit of the nature specified in section 50, they shall applyto the Charity Commissioner in writing for his consent. If theCharity Commissioner after hearing the parties and making suchenquiries (if any) as he thinks fit is satisfied that there is a primafacie case, he may within a period of six months from the date onwhich the application is made, grant or refuse his consent to theinstitution of such suit. The order of the Charity Commissionerrefusing his consent shall be in writing and shall state the reasonsfor the refusal.

(2) If the Charity Commissioner refuses his consent to theinstitution of the suit under sub-section (1) the persons applyingfor such consent may file an appeal to the Division Commissionerin the manner provided by this Act.

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A(3) In every suit filed by persons having interest in any trust undersection 50, the Charity Commissioner shall be a necessary party.

(4) Subject to the decision of the Divisional Commissionerin appeal under section 71, the decision of the CharityCommissioner under sub section (1) shall be final and conclusive.”

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Indubitably, the present suit is a suit for recovery of possession of thesubject property on the basis of title claimed therein by the plaintiffs/respondents and being a property of the trust. However, the procedureenvisaged under Sections 50 and 51, obviously, has not been compliedCwith. For, such permission has not been produced nor adverted to by thecourts below.

23. Be that as it may, as the plaintiffs/respondents have claimedtitle in the suit property, that claim could be answered on the basis of theregistration application of the trust, and schedule I regarding the registeredDproperties of the trust. Whether the property is a property of the trustand including the question as to whether it should be so recorded as theproperty of the trust, is a matter exclusively within the domain of theCharity Commissioner.

24. In the present case, the registration application preferred byEChotelal unambiguously records House No.55 in Circle No.3 as beingused for performing pujas in the temple. The temple name is mentionedas Shri Hanuman Deosthan. There is no reference in the application orin schedule I recording the properties of the stated public trust to includethe “Padukas of Haridas Baba” installed in House No.878 in CircleNo.3. Concededly, no evidence is forthcoming to show that HanumanFTemple exists in House No.878 in Circle No.3 which is in possession ofthe defendants/appellants.

25. Suffice it to observe that the application for registration of thepublic trust submitted by Chotelal on 31[st] August, 1953 (Exh.63), thesubsequent application for registration submitted by him under theGprovisions of the 1950 Act dated 13[th] September, 1961 (Exh.64), theschedule I recording properties of the plaintiff public trust (Exh.43), theenquiry report dated 13[th] October, 1954 (Exh.42), and the application forframing of the scheme and the order passed by the Charity Commissionerdated 4[th] April, 1975 (Exh.46), none of these document mention about H

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“Padukas of Haridas Baba” installed in House No.878 or refer to HouseNo.878 in Circle No.3 being the trust property; but instead, make specificreference to House No.55 in Circle No.3, which is a completely differentproperty. Notably, these documents also do not advert to the documentdated 23[rd] May, 1946 (Exh.41), purportedly executed by Smt. Yashodabaiallegedly creating a Panch Committee in respect of the suit House No.878in Circle No.3. The finding of fact recorded by the First Appellate Courtregarding the two properties and, more particularly, analysis in paragraphs11 & 12 of its judgment (reproduced in paragraph No. 12 herein above),have been brushed aside by the High Court on the specious asumptionthat it is a case of mis-description of the property in the official registerof public trust. That, however, was not the case pleaded much less provedby the plaintiffs/respondents. Such finding recorded by the High Court isa case of manifest error or error apparent, if not perverse. The HighCourt could not have disregarded the registration application and thedescription of the house number given in schedule I as the registeredproperty of the public trust, which is House No.55 in Circle No.3. It wasfor the plaintiffs/respondents to plead and prove that House No.55 shownin schedule I as property of the plaintiff trust is the same as HouseNo.878 in Circle No.3, which description has been given in the plaint asthe suit house. Having failed to establish that fact, no fault can be foundwith the finding recorded by the First Appellate Court, that Shri HanumanDeosthan, a public trust, had no causal connection with House No.878in Circle No.3 occupied by the defendants/appellants. Thus, it mustnecessarily follow that the suit for possession (of House No.878 in CircleNo.3) instituted by the plaintiffs/respondents on the basis of title, wasdevoid of merits.

26. We have no hesitation in upholding the finding of fact recordedby the First Appellate Court that the suit house occupied by thedefendants/appellants was recorded in the Municipal records during 1947to 1950 as House No.878 belonging to Haridas Baba and that numberwas changed to House No.521 in 1973-74 and converted to HouseNo.152 till the institution of the present suit. Further, it is clear that HouseNo.55 in Circle No.3 is entirely a different property. That has beenregistered as the trust property of Shri Hanuman Deosthan public trust,initially at the instance of Chotelal and then continued to be shown as aregistered property of the plaintiff trust until the institution of the suit.Such registration by the authorities under the 1950 Act would bind the AB

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Aplaintiffs/respondents. The plaintiffs/respondents have not been able toproduce any documentary evidence to establish the fact that the suithouse (bearing House No.878 in Circle No.3, which later on becameHouse No.152 in Circle No.3 by the time the suit was instituted), wasthe property of the plaintiff trust. The concomitant of such a conclusionis to dismiss the suit.B

27. It is not necessary for us to dilate on every aspect dealt withby the First Appellate Court or for that matter, the High Court, foranswering the substantial question of law under consideration. We affirmthe conclusion reached by the First Appellate Court that the plaintifftrust had failed to produce any documentary evidence to substantiateCthe fact that suit House No.878 in Circle No.3 was the registered propertyof the plaintiff trust and that the registered property of the plaintiff trustbearing House No.55 in Circle No.3, is the same house in possession ofthe defendants/appellants. Pertinently, the latter property was not ownedby Haridas Baba but belonged to one Ramlal Munnalal Halwai, having aDtemple of Radhakrishna and Ganpati. Further, the documentary evidenceproduced by the plaintiffs/respondents would, at best, establish the factthat Shri Hanuman Deosthan has been registered as a public trust andowns the property referred to in schedule I against its name (i.e. HouseNo.55 in Circle No.3). Thus, the property registered as belonging to theplaintiff trust was other than suit house bearing No.878 in Circle No.3.EFor all these reasons, the First Appellate Court was justified in answeringthe principal issue against the plaintiff trust.

28. That takes us to the second substantial question of lawformulated by the High Court for its consideration. The High Court hasadverted to the relevant portion of the written statement to concludeFthat the defendants/appellants had admitted that the suit property wasoriginally owned by Haridas Baba and that they were in possession inthe capacity of caretakers only. Indeed, that admission can be discernedfrom the written statement of the defendants as well as the oral evidenceof DW-1. But that admission does not take the matter any further. It isGnot possible to assume on the basis of that admission that the “suit house”(i.e. House No.878 in Circle No.3) is the property of the plaintiff trust.No documentary evidence has been produced by the plaintiffs/respondents to establish the fact that the suit house bearing House No.878in Circle No.3 originally owned by Haridas Baba was recorded as theproperty of the plaintiff trust in the official records. The plea taken by H

the defendants in the written statement, however, is indicative of thefact that they (defendants/appellants) were occupying House No.878 inCircle No.3, which was originally owned by Haridas Baba and wherehis Padukas had been installed. The written statement as well as theoral evidence of defendants/appellants clearly refute the claim of theplaintiffs/respondents. In that, the trust named as Shri Hanuman Deosthanhas been registered in reference to some other properties and forperforming puja with the object of maintaining Hanuman Deosthan templein House No.55 in Circle No.3. We also find that the High Court hasselectively adverted to portion of the written statement [sub-paras (b) to(d) of paragraph 11 thereof] and not to the other portion of the sameparagraph, namely sub-paras (e) to (g) (reproduced in paragraph 9hereinabove) which put across the stand of the defendants/appellantsincluding that the plaintiff trust has no causal connection with the suithouse bearing No.878 in Circle No.3.

29. Needless to observe that the plaintiffs/respondents wereprimarily obliged to establish their title in the suit house bearing No.878in Circle No.3 where the Padukas of Saint Haridas Baba have beeninstalled, as being the property of the plaintiff trust. The plaintiffs mustsucceed or fail on the title they establish; and if they fail to do so, theymust fail to get the relief of possession irrespective of title of the defendantin the suit property (See Brahma Nand Puri Vs. Naki Puri[3] andBajaranglal Shivchandrai Ruia Vs. Shashikant N. Ruia and Ors.[4]).In the present case, no tangible evidence regarding title of plaintiff trustin the suit house (House No.878 in Circle No.3) is forthcoming.

30. The High Court has also adverted to the so-called admissiongiven by DW-1 Vijay, noted in paragraph No.12 of the impugned judgment.In our opinion, the High Court has completely misread the said admission.Inasmuch as, all it says is that the house number had changed every fouryears after revaluation. Further, the suit house is in Circle No.3. This isspoken by the witness (DW1), in response to the question posed to himabout the change of Circle. He then admits that since 1910, the suithouse was owned by Haridas Bairagi. We fail to understand as to howthis admission can be of any avail to the plaintiffs much less to hold thatthe plaintiff trust has title in the suit house bearing House No.878 inCircle No.3.

3 (1965) 2 SCR 233

4 (2004 (5 SCC 272

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31. Much ado was made about the contents of a communicationsent by defendant No.1 to the Mayor of Nagpur Municipal Corporation(Exh.75). The same reads thus:

“Exhibit-75

To,The Mayor, Nagpur Municipal CorporationWasudeorao Maniramji Pullarwar,Occupier Baba Haridasji Math,House No.152, Ward No.6 New WardNo.16, S. No.03, New Shukrawari,Fawara Chowk, Medical Road, Nagpur.

…..Applicant

Subject:Objection to mutation on house No.152, Ward No.16circle No.03, New SShukrawari, Fawara Chowk, Medical Road,Nagpur.

Sir,

With respect, it submitted that house no.152, Ward No.16 NewShukrawari Nagpur is recorded in the name of Baba HaridasMath in the Nagpur Municipal Corporation assessment registerfor the last 70 years. The applicant is the disciple of Baba Haridasfor the last 60 years and is in possession and occupation of it forlast 30 years. He is looking after the Math and performing pooja/ustsav on yearly basis (yearly Utsav). I am paying the taxes ofthe said math for the last 30 years as occupier and user. Thereceipts to that effect are with me. The demand bill for the year1978-79 for taxes is given to the applicant. From that it has cometo the knowledge of the applicant that the said house is recordedin the name of “Shri Hanuman Deosthan Trust”. Then it ismentioned that the said change is as per the decision of LearnedCharity Commissioner, Mumbai dated 4.4.1975 and the same isrecorded on 15.7.1976 in the name of Hanuman Deosthan Trust.However, in the office or register of Charity Commissioner,Mumbai or Deputy Charity Commissioner, Nagpur dated 4.4.1975,there is no reference/mention about Shri Haridas Baba Math,House No.152, Ward No.16, Circle No.3, New Shukrawari,Nagpur nor there is any reference in the copy received by me.

Hence, the Hanuman Deosthan Trust has got the namechanged from Haridas Baba Math to Hanuman Deosthan Trustby keeping the tax department in the dark, fraudulently. The changeis recorded by the assessment department of the Nagpur MunicipalCorporation without consulting or asking the applicant. The saidchange is not acceptable to the applicant.

Hence, the original name of Baba Haridas Math should bemaintained. Accordingly, the applicant is ready to pay the taxesas earlier.

Also the Hanuman Deosthan Trust has got the change doneby keeping the Corporation in the dark. It has no relation with themath.

Hence, the name of the said Trust be removed and originalname of Baba Haridas Math be maintained. The applicant begiven opportunity to produce his documents and say beforeyourself.

NagpurDated: 17.3.1980

Sd/-Wasudeo Pullarwar

Applicant”

We fail to understand as to how this communication can be used as anadmission of the defendants much less of having accepted the title ofthe plaintiff trust in the suit House No.878 (renumbered as House No.152),in Circle No.3. On the other hand, it is a representation made to assailthe unilateral alteration of mutation entry in favour of Shri HanumanDeosthan Trust in violation of principles natural justice.

32. Suffice it to observe that even the second substantial questionof law must be answered against the plaintiffs and in favour of thedefendants/appellants.

33. Taking any view of the matter, we have no hesitation inupholding the conclusion recorded by the First Appellate Court that thesuit filed by the plaintiffs/respondents for possession of the suit house isdevoid of merits and deserves to be dismissed.

34. Accordingly, this appeal succeeds. The impugned judgmentand order passed by the High Court dated 24[th] October, 2008 in SecondAppeal No.364 of 1990 is set aside and the judgment and decree passedby the District Court Nagpur dated 21[st] January, 1989 in Regular Civil A

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AAppeal No.564 of 1983, is restored. Thereby, the suit filed by the plaintiffs/respondents bearing Special Civil Suit No.1127 of 1978 before the Courtof Civil Judge, Senior Division, Nagpur stands dismissed. No order as tocosts. Ordered accordingly.

BKalpana K. Tripathy

Appeal allowed.

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