Jamna and Others vs Haji Ahmed Haji Yakub and Others

R.B. Mehta, J.—This is a civil revision application against an order passed by the learned District Judge Surat on preliminary issue in regard

to the maintainability of the suit as well as the jurisdiction of the Court to entertain the suit under the provisions of the Bombay Public Trusts Act

1950 by which the learned District Judge held against the petitioners that the Court had jurisdiction to try the suit and that the suit was maintainable.

The facts giving rise to the petition are this way: The suit was filed by the five plaintiffs on 18th August 1954 as realtors with the sanction of the

Charity Commissioner u/s 50 of the Bombay Public Trusts Act 1950 The allegation made in the plaint was that there was a public religious and

charitable trust known as Sitab Pir Durgah at Navsari. It was further alleged that defendants Nos. 1 and 2 were the ''Mujavars of that Durgah and

that before them their deceased father Jamalsha was the ''Mujavar of that Durgah. It was further alleged that during the management of this trust

property by Jamalsha as well as the defendants Nos. 1 and 2 the trust property in question was alienated by these persons in favour of the third

defendant Bhagwandas Vanmali Sanghadia during the years 1920 and 1928 respectively. The exact dates of these alienations are not material for

the present purpose. It may be stated that when the property was alienated it was a vacant land. It was alleged that after the alienations

construction was done by the alienee on this land. It may also be stated that the alienees were both defendant No. 3 as well as defendant No. 3s

father. It was further alleged that these alienations were in breach of trust and further that the alienees i.e. the father of defendant No. 3 as well as

defendant No. 3 were aware of the breach of trust. It was further alleged that the alienations came to the knowledge of the realtors in 1944 and

that thereafter they applied to the Wakf Adhikari of the then Baroda State as the properties were situated at Navsari within the limits of the then

Baroda State to institute an inquiry under the provisions of ''Wakf Nirbandh of the State. It is further alleged that the Wakf Adhikari gave a finding

in favour of the Trust and against the alienees. The alienee i.e. defendant No. 3 then filed a suit against the State in the then Baroda State Court

contesting the correctness of the decision of the Wakf Adhikari. This was prior to the merger. After the merger the said suit was transferred to the

Court of the District Judge Surat which Court decided against the plaintiff upholding the decision of the Wakf Adhikari. There was an appeal to the

then High Court of Bombay by the alienee the defendant No. 3. The High Court dismissed the appeal. It is alleged that the property in question

however remained in possession of the alienees. During the pendency of the suit three of the plaintiffs died with the result that the two surviving

plaintiffs namely Haji Ahmed Haji Yakub and Kamruddin Haji Abdul Hamid continued the suit. The original defendant No. 3 Bhagwandas

Vanmali Sanghadia also died and in his place and stead his heirs and legal representatives that is the present petitioners were brought on record as

party defendants. As the possession continued to remain with the alienees and as the Trust was unable to recover the possession of the trust

property the present suit was filed in the Court of the learned District Judge Surat for the following reliefs:

(1) It may be declared that the properly described in para 8 of the plaint as Wakf property belonging to Shitab Peer Durgah vests in the plaintiffs

or any trustees who may be appointed trustees of the said Wakf.

(2) That the sale deed under which defendant No. 3 had got the aforesaid portion of S. No. 95 may be declared to be void and that defendant

No. 3 should be ordered to render accounts of the income of the said portion of Section No. 95 or mesne profits thereof or damages for the use

and occupation thereof and to deliver possession of the same to the plaintiffs who may be appointed Trustees of the said portion of Section No. 95

or give directions to the trustees who may be appointed in Regular Suit No. 23 of 1954 of this Hon''ble Court to recover possession of Tika 18 S.

No. 95 of Navsari Kasba from defendant No. 3.

The defence of the alienee was that the suit was not maintainable; that the suit as framed was beyond the scope of Section 80 of the Bombay

Public Trust Act 1950 that the Civil Court had no jurisdiction to entertain the suit; that the petitioners were the owners of the suit land by virtue of

the sale-deed; that the suit was barred by limitation; that the Durgah was not a public religious and charitable trust and that the petitioners had

constructed valuable structures on the suit property.

The four preliminary issues were raised out of which in the present revision application we are concerned only with the two issues viz. (1) whether

the Court has jurisdiction to hear the suit; and (2) whether the suit was bad for misjoinder of parties and causes of action. Under the latter issue the

maintainability of the suit was contested. The learned District Judge decided both the issues against the alienee of the Trust property that is the

original defendant No. 3. It is against this decision of the learned District Judge that the petitioners who are the heirs and legal representatives of the

original defendant No. 3 that the present revision application has been filed.

Mr. A.D. Desai the learned Advocate for the petitioners has contended before this Court that the suit is outside the scope of Section 50 of the

Bombay Public Trusts Act and therefore it is not maintainable and further that the Court had no jurisdiction to try this suit under the provisions of

the said Act. Mr. Desai further contended that in this suit his clients who are transferees and who are strangers to the Trust have beep made parties

and further that the relief has been asked for against them for recovery of the possession of the trust property. Mr. Desai said that such a suit is

outside the scope of Section 50 of the Act. Mr. Desai''s contention is that Section 50 contemplates suits only against the trustees and not against

third parties and further that a suit asking for recovery of possession from a third party or a trespasser does not fall under the ambit of Section 50

Mr. Desai said that for that reason the suit was not maintainable against his clients. It is necessary at this stage to appreciate the argument of Mr.

Desai to set out the provisions of Section 50 of the Bombay Public Trusts Act 1950.

In any case.

(i) where it is alleged that there is a breach of a public trust.

(ii) where a declaration is necessary that a particular property is a property belonging to a public trust or where a direction is required to recover

possession of a property belonging to a public trust or proceeds thereof or for an account of such property or proceeds from any person including

a person holding adversely to the public trust or

(iii) where the direction of the court is deemed necessary for the administration of any public trust

the Charity Commissioner after making such inquiry as he thinks necessary or two or more persons having an interest in the trust and having

obtained the consent in writing of the Charity Commissioner as provided in Section 51 may institute a suit whether contentious 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 of 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 (cc) vesting any property in a trustee

(d) a direction for taking accounts and making certain inquiries

(e) 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

(f) a direction authorising the whole or any part of the trust property to be let sold mortgaged or exchanged

(g) the settlement of a scheme or variations or alterations in a scheme already settled or

(h) granting such further or other relief as the nature of the case may require:

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.

In the present case the plaintiffs have asked for a declaration that the property in question belongs to a public trust and they have also asked for

a direction for the recovery of the possession of the property in question. They have further asked that the sale-deeds in favour of the alienees

should be declared null and void and further that defendant No. 3 should be ordered to render accounts of the income of the alienated property or

mesne profits or for damages for the use and occupation thereof and that the property may be handed over either to the plaintiff or such trustees as

may be appointed by the Court. In other words the allegations in the plaint directly fall within the first clause of Section 50 for there is an allegation

that there is a breach of trust by the ''Mujavars. The further allegations in the plaint fall within the second clause of Section 50 for the plaintiffs have

sought for a declaration that the property in question belongs to a public trust. A further allegation in the plaint is that the plaintiffs by retaining the

possession of the property are denying or are interested in denying the title of the trust. Further the allegation in the plaint is that as the alienee is in

possession of the property the direction of the Court is required to recover possession of such property from the alienee who is a person holding

adversely to the public trust. This allegation falls directly within the second part of the second Clause of Section 50 of the Act. It is also significant

to note that Section 50(ii) in its latter part contemplates a case where a direction is required to recover possession of property from any person

including possession from a person holding adversely to the public trust. The words any person including a person holding adversely to a public

trust are abundantly wide and would also include a person other than a trustee. Section 50 further says that where the case is either falling u/s 50,

50 or 50(iii) a suit may be instituted as stated therein to obtain a decree for any of the reliefs mentioned in the said section and those reliefs as

stated above are from (a) to (h). In the present case the reliefs that have been asked for are an order for the possession of property which relief is

(a); and order for the appointment of a new trustee which relief is (c) in the section; an order for vesting the property in the trustee which relief is

(cc); and a direction for talking accounts and making certain inquiries which relief is (d). So far we have seen that the allegations in the plaint and

the reliefs asked for are in conformity with the provisions of Section 50. For each of the cases mentioned in Section 50 50 and 50(iii) it is open to

the plaintiff to ask for any of the reliefs viz. (a) to (h). Further it is pertinent to look at the proviso to Section 50 which says 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. In other words

if you want any of the reliefs between (a) to (h) and if these reliefs are in respect of any public trust then by reason of the proviso no such suit can

be filed except in conformity with Section 50. In other words taking the present case if you want an order of the Court for recovering possession

of property and if that property is alleged to belong to a public trust then in that case a suit has to be filed u/s 50. There is nothing in this section

which would exclude a suit where a third-party is impleaded u/s 50 and in which an order is sought for recovery of possession of such a trust

property. This seems to me to be the construction of Section 50 on the language of the section itself.

Now let us go to the authorities which have been cited by Mr. Desai. Mr. Desai said that the scope of Section 50 is not wider than the scope of

Section 92 of the Civil Procedure Code. Mr. Desai further contended that a suit to recover possession of property from a stranger does not fall

either within Section 92 of the CPC or within Section 50 of the Bombay Public Trusts Act. In this connection Mr. Desai drew my attention to an

unreported judgment delivered by a Division Bench of the former Bombay High Court consisting of Shah and Gokhale, JJ. in Civil Revision

Application No 364 of 1956 wherein it was held that a suit filed by a manager of property of a public trust of a religious or charitable nature for

possession of property of the trust against a trespasser is not governed by Section 92 of the CPC or by Section 50 of the Bombay Public Trust

Act 1950 It was held that when a suit is filed against a trespasser it is not alleged that there is a breach of a public trust nor is any declaration

necessary that the property which is the subject matter of the suit is the property belonging to a public trust nor is any direction required to recover

the possession of such property or the proceeds thereof from any person nor is the direction of the Court deemed necessary for the administration

of any public trust.

This position is in respect of a suit filed by the trustees or Managers of a public trust. The suit before the Division Bench of the Bombay High Court

was not a suit by realtors with the sanction of the Charity Commissioner as is in this case. In that case before the Division Bench it was also not

alleged that there was any breach of a public trust in these circumstances the decision of the Bombay High Court cannot lend any assistance to Mr.

Desai. In a case where the suit is not filed by the trustees but where it is filed by realtors with the sanction of the Charity Commissioner it cannot be

said that the realtors are in any sense the owners of the trust property and the reasoning which may be appropriate to the case of an owner may

not be appropriate to the case of realtors. The learned Judges observed as follows:

It is true that the scope of Section 50 of the Bombay Public Trusts Act is somewhat wider than the scope of Section 92 of the Civil Procedure

Code. But in our judgment a suit filed by a manager of property of a public trust of a religious or charitable nature for possession of property of the

trust against a trespasser is not governed by Section 92 of the CPC or by Section 50 of the Bombay Public Trusts Act 1950.

The learned Judges further observed as follows:

But evidently when a suit is filed by a person who claims to be an owner of property against a trespasser it is not alleged that there is a breach of a

public trust nor is any declaration necessary that the property which is the subject-matter of the suit is property belonging to a public trust nor is

any direction required to recover the possession of such property of the proceeds thereof from any person nor is the direction of the Court

deemed necessary for the administration of any public trust.

As I have stated earlier the case before me is not a case where a Manager or a Trustee who claims to be an owner of the property has filed a suit

but here realtors who are in no sense owners of the property have filed the suit. This case therefore cannot assist Mr. Desai.

Next Mr. Desai relied on a judgment of my learned brother Mr. Justice Shelat in Civil Revision Application No. 531/1961 which is an unreported

judgment delivered on the 16th March 1961. A similar question arose before my learned brother where a suit was filed by the plaintiff as the

Vahivatdar of the Panch known as the Surat Suthar Char Nyat Vaishya Mewada and Panchali against the defendants to recover possession of the

suit properties for mesne profits and other incidental reliefs. The suit was filed as stated earlier by the plaintiff as the trustee of a public charitable

trust and it was for recovery of possession against the defendants who were alleged to be trespassers. My learned brother observed that the point

raised before him was completely covered by the above mentioned decision of Shah and Gokhale, JJ. The case before my learned brother was

also a case where the suit was filed by the plaintiff who was the trustee or a manager of the trust. It was also not a suit by realtors with the sanction

of the Charity Commissioner. The consideration which flow from the ownership of the property which may be appropriate in the case of trustees

or managers do not necessarily flow in the case of realtors. In my view therefore this case also does not assist Mr. Desai.

Mr. Desai further drew my attention to a decision in AIR 1934 48 (Nagpur) where it was observed as follows:

No doubt that u/s 92 a decree for recovery of property and for delivery of possession cannot be passed against transferees of endowed property

but possession can be taken by decree u/s 92 from a person who has been appointed a manager of the property under the deed and who has

taken possession wrongfully and who has been mismanaging the property.

Mr. Desai contended that the scope of Section 50 is not wider than the scope of Section 92 of the CPC and that therefore this decision is

apposite. Actually in this Nagpur case the question did not arise for recovering possession from a transferee. The learned Acting Judicial

Commissioner at page 50 of the report observes as follows:

In (Acharya Guru Mahant) Ramrup Goshain and Others Vs. Mahant Ramdhari Bhagat and Others it was held that a decree for recovery of

property and for delivery of possession could not be passed u/s 92 against transferees of endowed property. In the present case however that

question does not arise and the only question is whether possession can be taken from Gayaprasad who was appointed a manager of the property

under the deed (Ex. P.1) but who took possession wrongfully during the lifetime of Mt. Parmabai and has been mismanaging the property.

In other words the actual decision was concerned with the recovery of possession from the trustee or manager who was holding it wrongfully

against a trust and not from a third party though undoubtedly the learned Judge refers to an Allahabad decision for the proposition that a decree for

recovery of property and for delivery of possession could not be passed u/s 92 against transferees of endowed property. This decision is therefore

not a direct authority that a suit for a recovery of property cannot be filed u/s 92 against a transferee. But there is no doubt that the position on

authorities so far as Section 92 is concerned was that suits against strangers to the trust that is against trespassers and against transferees from

trustees for a declaration that property in their hands is trust property and for possession are outside the scope of Section 92 (Vide D.P. Mullas

CPC 12 Ed. 1 340). At the same time the reason for this position has been stated to be that the relief claimed in such a suit is not one of those

mentioned in Clauses (a) to (h). In other words u/s 92 of the CPC so far as the reliefs (a) to (h) are concerned there was no relief enabling the

Court to order recovery of possession of immovable property. It was held in several decisions that as the Court was unable to order recovery of

possession such a suit against a stranger was not contemplated u/s 92 of the Civil Procedure Code. This reasoning in regard to suits against

strangers for recovery of possession could hardly hold good in reference to Section 50 of the Bombay Public Trusts Act for relief (a) clearly

mentions an order for recovery of the possession of such property or proceeds thereof.

Mr. Desai next referred to the case of Ashraf Ali and Another Vs. Mahammad Nurajjama and Another, where it was observed that a suit u/s

92 is primarily a suit against the trustee and can only be instituted either on the ground that there has been a breach of trust or that direction of the

Court is necessary for the administration of the trust. The suit in that case was brought by two worshippers of a mosque under Order 1 Rule 8 for

a declaration that a permanent lease granted by the muttawallis in favour of defendants Nos. 2 and 3 who were outsiders was void and inoperative;

and for a decree for possession and mesne profits either in favour of the muttawallis or in favour of the plaintiffs on the ground that it was not within

the competency of the muttawallis to grant such a lease. One of the arguments advanced was that it was a suit which could only be instituted in

compliance with Section 92 of the CPC and having not been so instituted was liable to be dismissed. In other words the contention was that the

suit was not instituted at the instance of the Advocate General as required by Section 92 of the Civil Procedure Code. The answer given by the

Court was that a suit under that section is primarily a suit against the trustee and can only be instituted either on the ground that there has been a

breach of trust or that direction of the Court was necessary for the administration of a trust. The Court further observed that a trustee was one of

the defendants and although it was alleged that the grant of the permanent lease was not within the competency of the trustee no relief was claimed

against the trustee nor was the Court - asked to give any direction for the administration of the trust. In other words the Court held that it was not a

suit within the provisions of Section 92 on the ground that no relief was claimed against a trustee nor was the Court asked to give any directions for

the administration of the trust. There was no observation made by the Court that the suit could not be filed against a stranger for recovery of

possession of the property. That however is not material for the present purpose for I have already stated earlier that u/s 92 of the CPC the

consensus of judicial opinion was to the effect that a suit under that section could not be filed against a stranger for recovery of possession of

property and the reasoning on which this conclusion was based as pointed out earlier was that there was no relief provided u/s 92 for ordering

recovery of possession which the Court could grant. Further the scope of the suit u/s 92 as observed by Shamsul Huda J. with whom Chatterjea J.

agreed was as follows:

A suit under that section is primarily a suit against a trustee and can only be instituted either on the ground that there has been a breach of trust or

that direction of the Court is necessary for the administration of the trust.

It was in these two contingencies that the suit was contemplated u/s 92 of the CPC for the reliefs mentioned therein.

A glance at Section 50 of the Bombay Public Trusts Act 1950 shows that the provisions of Section 50 are wider than those of Section 92 of the

CPC for the contingencies under which a suit u/s 50 can be filed are - (i) where it is alleged that there is a breach of a public trust; and (ii) where a

declaration is necessary that a particular property is a property belonging to the public trust and to recover possession thereof or the proceeds

thereof or for an account of such property or proceeds from any person including a person holding adversely to the public trust; or (iii) where a

declaration of the Court is deemed necessary for the administration of any public trust. In other words the very ambit of Section 50 of the Bombay

Public Trusts Act is made wider than the ambit of Section 92 of the Civil Procedure Code. Further u/s 50 it is also provided that where such a suit

is filed as contemplated u/s 50, 50 and 50(iii) it was competent for the plaintiffs to ask for any of the reliefs mentioned in the said section which

reliefs include a relief for the recovery of possession of property. Section 50(ii) in terms contemplates a case of a person holding adversely to the

public trust which as I have stated earlier include a person other than a trustee of a trust in other words a stranger or an alienee from a trustee. This

Calcutta case therefore, is of no assistance to Mr. Desai.

Next Mr. Desai drew my attention to (Acharya Guru Mahant) Ramrup Goshain and Others Vs. Mahant Ramdhari Bhagat and Others (Acharya

Guru Mahant) Ramrup Goshain and Ors. v. Mahant Ramdhari Bhagat and Ors where it was observed by Mr. Justice Sulaiman that in a suit u/s 92

a decree for actual possession against transferees from the trustee cannot be properly passed. Though Mr. Justice Boys was of the view that a

third party can be impleaded in such a suit u/s 92 for the purpose of an inquiry into the propriety of the transfers by the trustees and that it is open

to the Court to declare whether the transfers were void or otherwise. Mr. Justice Boys further held that u/s 92 the Courts could not order

possession of the property against a transferee. Mr. Justice Boys observed as follows at page 686:

Section 92 by its terms applies only where there has been an alleged breach of trust or where a direction of the Court is necessary for the

administration of the trust and if either of those conditions is satisfied and in addition the proper consent has been obtained to the institution of the

suit the section then proceeds to declare (a) to (h) what decree may be passed.

The object of the section has been declared to be vide Sajedur Raja Chowdhary v. Gour Mohan Das Baishnav (1887) 24 Cal 418 and this

interpretation has not so far as I am aware ever been qualified or challenged to prevent an indefinite number of reckless and harassing suits being

brought against trustees by different persons interested in the trust. This object is in no way furthered by holding that in a suit by a person interested

for the removal of a trustee and the appointment of a new trustee a relief may be added against a third party transferee that he be ordered to

deliver up possession.

In context with these words it should be borne in mind that the object of Section 92 as stated by the learned Judge and as was evident under the

provisions of Section 92 by its very terms was a case of an alleged breach of trust or a - case where the direction of the Court was necessary for

the administration of a trust and further these observations were made in context with the reliefs which have been enumerated in Clauses (a) to (h)

of Section 92. The learned Judge further observed in connection with the argument that Clause (h) was wide enough to include a decree against a

third party transferee for delivery of possession that Clause (h) was to be applied to matters ejusdem generis with the proceeding matters; that

Clauses (a) to (g) were related to the administration of a trust or a breach of trust and that therefore under Clause (h) a relief for recovery of

possession from a third party was not permissible. In fact the learned Judge at page 687 observes as follows:

There is nothing else in Clauses (a) to (g) which can remotely suggest that the relief which we are considering can be included in Clause (h).

This decision also proceeds on the basis of the scope of Section 92 from the wordings of Section 92 itself as well as from the reliefs which are

mentioned therein. I have already stated that Section 50 has enlarged the scope of Section 92 in regard to the nature of the suits which can be filed

as well as for the reliefs which are obtainable in such suits and therefore this decision is also not of must assistance to Mr. Desai.

In this connection it is worthwhile referring to the case of Abdur Rahim Vs. Syed Abu Mahomed Barkat Ali Shah, where it was held that a suit u/s

92 is competent in regard to breaches of trust for which only the reliefs mentioned in Section 92 where the reliefs sought for. At page 781 of the

report Their Lordships observe as follows:

...but the general currer of decisions was to the effect that even if such third parties could properly be made parties u/s 539 no relief could be

granted as against them. In that state of the previous law their Lordships cannot agree that the Legislature intended to include relief against third

parties in Clause (h) under the general words-further or other relief In other words because of the want of the provision for a proper relief in

reference to recovery of possession against the third parties the Courts held that u/s 92 no relief could be granted against third parties for recovery

of possession of property.

In this connection it is pertinent to refer to the case of The Collector of Poona v. Bai Chanchalbai (1911) 35 Bom 470 where a Division Bench

consisting of Mr. Justice Chandavarkar and Mr. Justice Hayward held that where a breach of trust is complained of and where the alienee of trust

property denies that the property is the subject of a public trust for religious purpose he is a proper and necessary party to a suit brought under the

provisions of Section 539 of the CPC of 1882 though no relief can be given as against him by way of a decree in ejectment. Their Lordships at

page 472 of the report further observed as follows:

It does not follow from the decisions on which the Courts below have relied that to a suit of this character were a breach of trust is complained of

and where the alienee denies that the property is a public trust for religious purposes he is not a proper and necessary party because relief cannot

be given as against him by way of a decree in ejectment. Though such a decree does not fall within the reliefs which the Court can grant u/s 539 it

has jurisdiction to determine for the purpose of the reliefs which can be granted whether the property is a public trust for a religious purpose if that

question is in controversy.

In other words this decision goes to the length of saying that where a breach of trust is complained and where a trustee has transferred property

to an alienee the valknee is a proper and a necessary party but the relief of possession could not be granted as there was no such provision u/s 539

the predecessor of Section 92. It therefore seems to be clear that the hurdle in the way of joining a trespasser or an alienee of a trustee to the suit

u/s 92 and granting a decree for possession against him was that such a relief was not contemplated u/s 92 of the Civil Procedure Code; and

further that such a relief was not one of the reliefs which can be said to be ejusdem generis with reliefs (a) to (g).

In this connection Mr. Desai further argued that by the above relief (a) for the recovery of possession of property alleged to be belonging to a

public trust u/s 50 Section 50 did not widen its ambit vis-a-vis Section 92 of the CPC where there was an allegation of a breach of trust. In other

words Mr. Desai contended that where a breach of trust was alleged the possession of the property could be ordered against the trustee u/s 92

and therefore the addition of relief (a) to Section 50 only made express what was considered by the Courts to be implied in regard to the trustees

where there was an allegation of a breach of trust and that it cannot be said that Section 50 by addition of the relief (a) extended its ambit where

there is an allegation of a breach of trust so as to include the relief against an alienee for recovery of possession of a trust property. I am unable to

accept this argument. To find out the ambit of Section 50 one must look comprehensively to the whole section. There are three contingencies

mentioned in Section 50 in which a suit can be filed by the Charity Commissioner or the realtors at the instance of the Charity Commissioner.

These contingencies are mentioned in Section 50(i) 50 and 50(iii) and further it is also provided that if such a suit is filed as contemplated u/s 50(i)

or 50(ii) or 50(iii) it would be open to the plaintiffs to ask for any of the reliefs between (a) to (h) and one of reliefs mentioned is relief (a) for the

recovery of possession of the trust property. Further if one reads the proviso to Section 50 it is clear that where you ask for any of the reliefs

between (a) to (h) and if those reliefs are in respect of a public trust then no suit can be filed except as provided u/s 50. Section 50 in my view

would include a suit where a breach of trust is alleged against a trustee by alienation of the trust property in favour of the third party and where an

order is asked for recovery of possession from a third party which is a party to the breach of trust for this would evidently be a case where you are

asking for one of the reliefs mentioned in the section and that relief is also in respect of trust property. The section does not say wither expressly or

impliedly anything which would exclude impleading of an alienee from a trustee where such relief as is mentioned in Section 50 is asked for and

where it is asked for in connection with the trust property. In my view therefore the present suit in so far as it asks for a relief for possession of

property against the transferees from the trustee cannot be said to be outside the scope of Section 50 of the Bombay Public Trusts Act and is

maintainable under the provisions of Section 50.

It was pointed out in this connection by the learned Advocate Mr. Shah for opponents Nos. I and 2 that is the realtors that looking to the wording

of relief (a) of Section 50 that relief contemplates possession of property from alienees. The wordings are an order for the recovery of the

possession of such property or proceeds thereof. Mr. Shah laid stress on the word recovery and said that it implied getting possession from third

parties. It is difficult to say that the word recovery by itself would lead to such a conclusion for this phrase can easily be applied to a trustee who is

wrongfully holding against a trust as well as against an alienee of the trustee. However I have based my decision on the reasons which I have

discussed above and come to the conclusion that Section 50 does not exclude impleading an alienee of a trustee where a relief is asked against that

alienee for possession of that property.

There is another aspect which I may refer to before leaving this subject that where a trustee in breach of trust alienates property in favour of an

outsider and where a suit is brought against the trustee on the alleged breach of trust under the provisions of Order I Rule 3 the alienee who is a

party to the breach of trust can be properly joined in the same suit for a relief in respect of or arising out of the same act or transaction or series of

acts or transactions alleged to be existing against the trustee as well as the transferee either jointly severally or alternately; for in such cases if

separate suits were brought against such persons common questions of facts or law would arise. And there is no bar u/s 50 to impleading an

alienee in such a suit. The only hurdle u/s 92 as can be gathered from the decisions has been that there was an absence of proper relief u/s 92

which cannot be said in regard to see. 50 of the Bombay Public trusts Act where in terms there is a relief provided for recovery of possession of

properties. In this view the objection about the non-maintainability of the suit cannot be sustained.

Mr. Desai next argued that u/s 22A of the Bombay Public Trusts Act the authority mentioned therein viz. the Deputy or Assistant Charity

Commissioner, was the authority competent to make further inquiry in regard to the particulars of the trust. Mr. Desai further said that against the

decision of the Assistant or Deputy Charity Commissioner u/s 22A an appeal lies to the Charity Commissioner and over the decision of the Charity

Commissioner an application can be filed to a (Civil Court u/s 72 of the Bombay Public Trusts Act which can also be reviewed by a higher court.

Mr. Desai further said that by Section 80 the jurisdiction of the Civil Courts is barred from deciding or dealing with any question which is by or

under this Act to be decided or dealt with by an officer or authority under the said Act or in respect of which the decision or order of such an

Officer or authority has been made final and conclusive. Mr. Desai also drew my attention to Sub-section (2) of Section 21 which says as follows:

The entries so made shall subject to the provisions of this Act and subject to any changes recorded under the following provisions be final and

conclusive.

Sections 18 to 21 contemplate inquiries by the Deputy or Assistant Charity Commissioner in regard to particulars of a trust which include also the

question whether a particular property forms a part of a public trust. These sections also show that after the inquiry the findings are recorded by the

relevant officers and entries are made in the register in regard to the particulars of a trust and those entries are made final and conclusive by Section

21(2) as stated earlier subject to the recording of any further change u/s 22 or Section 22A. In the case in hand the trust was registered as a public

trust in 1952 on an application made by defendant No. 1 who was one of the Mujavars and son of Jamalsha. The allegation in the plaint is that

while giving the particulars of the trust this property was concealed from disclosure. Section 22A contemplates a further inquiry into the particulars

of a public trust in those cases where an inquiry has been made previously and findings have been recorded and entries have been registered. It

was therefore argued by Mr. Desai that in this case the function of further inquiry into the public trust has been assigned by Section 22A to the

Deputy or Assistant Charity Commissioner and after making such inquiry when he arrives at his finding then his finding and the entry regarding that

finding in the register are final and conclusive subject to an appeal to the higher authorities Mr. Desai contended that Section 80 bars the

jurisdiction of Civil Courts to entertain this question as to by Section 22A it is only within the competence of the Assistant or Deputy Charity

Commissioner to make a further inquiry.

Now looking at Section 80 of the Bombay Public Trusts Act it provides as follows:

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 or in respect of which the decision or order of such officer or authority has been

made final and conclusive.

Therefore if a suit is competent under the provisions of Section 50 it cannot be said that such a suit is barred by reason of Section 80. It would

therefore be necessary to see whether the suit is competent u/s 50. As I have already observed the present suit is competent u/s 50. Therefore it

cannot be said that the bar of Section 80 can apply to a case which has been expressly provided for by Section 50. It seems to me therefore that

the objection of the bar of jurisdiction under the provisions of Section 80 cannot be sustained.

Mr. Desai in this connection drew my attention to an unreported judgment delivered by my learned brother Mr. justice Shelat on the 19th April

1961 in Civil Revision Application No 524/1960. Kuberdas Shivdas v. Mahant Purshottamdas ILR (1961) 564. My learned brother there held

that the case was covered by Section 22A and the suit by a Civil Court was not competent. In that case the questions were as follows:

Whether the 1st defendant fraudulently and dishonestly got the trust registered in the name of Rabari Dharma Guru Gadi and whether it should

be renamed as Shri Ramji or Ranchhodji Temple Public Trust Dotroj?

Whether the first defendant fraudulently and dishonestly got the mode of succession to the Gadi or the appointment of the trustee and manager

of immovable and movable properties entered in the register by suppressing material and correct facts from the Deputy Charity Commissioner? If

yes what should they do?

Whether this Court has no jurisdiction to decide the issues raised in points Nos. 3 and 4 under the Bombay Public Trusts Act?

The Court came to the conclusion that these were the questions which were properly to be investigated into by Assistant or the Deputy Charity

Commissioner u/s 22A and held that the suit which was filed with the sanction of the Charity Commissioner u/s 50 was not competent in that case.

In regard to this decision it is apparent that no question arose as to whether the nature of the suit fell within the ambit of Section 50 and whether the

reliefs asked for were those contemplated by Section. 50. In these circumstances I do not think that this decision can land any assistance to Mr.

Desai.

It is necessary to state that Section 50(h) has been amended by Bombay Act 6 of 1960 by which amendment the words where a declaration is

necessary that a particular property is a property belonging to a public trust have been omitted. The reasoning of my decision in this case is not

affected by this amendment assuming that the amendment applies to the present case for there still remains the contingency of a breach of trust and

a direction for recovery of the property belonging to a public trust and accounts from a person holding adversely to the trust which questions fall

within the amended Section 50 and the suit will therefore still fall within the provisions of Section 50 as amended. In my opinion neither of the

objections raised by Mr. Desai are sustainable.

In the result the revision application fails and is dismissed with costs. Rule is discharged. The petitioners to pay the costs of opponents Nos. 1

and 2 and opponent No. 5 The Charity Commissioner in two sets One set for opponents 1 and one set for opponent No.5.