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Judgment
Hon''ble Shri Justice A.K. Shrivastava
Feeling aggrieved by the judgment and decree dated 13.03.1996 passed by the learned District Judge, Sagar in Civil Suit No. 48-A/1988 decreeing the suit of the plaintiff, this first appeal has been filed at the instance of first and second defendants. In brief the suit of the plaintiff/respondent no. 1 which was filed long back more than 24 years ago on 31.08.1988 is that the plaintiff/institution is a registered public trust registered under the M.P. Public Trust Act, 1951 (in short "Act of 1951") having its registration no. 309/1980. In the resolution of the said trust, all 11 trustees authorized trustee Baijnath Dubey to file this suit and to appoint an Advocate to prosecute the suit and other legal proceedings on behalf of the trust and in his absence another trustee Rameshwar Prasad Pateriya was authorized to discharge his tasks. However, third defendant trustee Jhalkanpuri and fourth defendant Dinanath resolved in opposition because both of them have made collusion with defendants and therefore they are impleaded as third and fourth defendants. The suit property is a house the description whereof has been mentioned in the plaint para 3 is owned and possessed by the said trust. It is further case of the plaintiff that after obtaining requisite sanction from the Registrar appointed under the Act of 1951 to sell 2000 sq.feet and house in question was sold for Rs. 2.50 lac to 5th defendant. According to terms and conditions of the auction sale a sum of Rs. 25000/- has been deposited by the auction purchaser and balance amount of consideration is to be paid at the time of registration of sale-deed. Thus, 5th defendant is having interest in the suit property and has been impleaded as defendant in the suit. Further it is pleaded that vide notice of the 5th defendant on 07.06.1988 the trustees of the trust came to know that first defendant Khumanpuri without any authority is claiming ownership right over the suit property of which plaintiff is owner and is illegally trying to alienate the same to second defendant Lakhanlal. The said action of first and second defendants is against the interest of the trust and hence present suit has been filed for declaration that suit property is owned by trust and first defendant is not having any right in it. A decree of injunction has also been sought that the first defendant be restrained from alienating the property in question to defendant no. 2.
The first and second defendants filed a joint written-statement, however, other defendants did not file any written-statement. In the written-statement filed by first and second defendants they refuted the averments made in the plaint but did not plead any specific denial in regard to absence of the resolution dated 24.08.1988 authorizing Baijnath Dubey or Rameshwar Prasad to file suit. According to these defendants the trust is not a registered public trust and even though secretly if it has been registered the entire action is illegal. The factum of collusion of first and second defendants with third and fourth defendants is denied. It is also pleaded that the suit property is exclusively owned by first defendant Khumanpuri. Further it has been pleaded that on 31.10.1987 first defendant entered into an agreement of sale with second defendant for a consideration of Rs. 1.51 lac and second defendant has also paid a sum of Rs. 70,000/- to first defendant by executing an agreement of sale. It is also pleaded that the simpliciter suit for declaration is not maintainable.
In the additional pleas, it has been pleaded by the first and second defendants that earlier the suit property was owned by one Seerdar Bahu who gifted the disputed property on 13.09.1932 to Shri Dev Mahadevji Sukrawari in presence of panchs. Said donor Seerdar also delivered the management of property in question to first defendant Khumanpuri and to Mangalpuri and Sukkepuri. The other two persons who were taking care had died and now only first defendant is alive. Since beginning he is the owner of the property in question hence it has been prayed that suit be dismissed.
The learned Trial Court framed the following issues:-
(1) Whether, the plaintiff is a registered public trust?
(2) Whether, the suit property is owned by plaintiff?
(3) Whether, the plaintiff is not possessing the suit property and the suit is not maintainable?
(4) Whether, Court fee has been properly paid?
(5) Whether, suit is within limitation?
(6) Relief and cost.
Learned Trial Court after examining the witnesses, decreed the suit of plaintiff by the impugned judgment and decree. In this manner this appeal has been filed by the defendants no. 1 and 2.
Shri Ruprah, Senior Advocate for appellants/defendants no. 1 and 2 has raised two points before this Court. Firstly he has submitted that as per own allegation of the plaintiff, the suit property is owned by the plaintiff registered under the Act of 1951 but the suit has not been filed by all the trustees and therefore in view of the Division Bench decision of this Court in Laxman Prasad Vs. Shrideo Janki Raman, since all the trustees have not filed the suit, the same is not maintainable and hence by allowing this appeal the suit be dismissed.
The second point upon which learned Senior Counsel has put emphasis is that earlier an application was moved to register the plaintiff as a registered trust under the Act of 1951 however said application was rejected and property was not registered as public trust vide order dated 26.11.1973 and if that would be the position, subsequently order dated 15.12.1980 (Ex.P/21) registering the trust as public trust is bad in law and hence it has been prayed that by allowing this appeal the suit be dismissed.
On the other hand Shri Yadav, learned counsel for plaintiff/respondent argued in support of the impugned judgment.
Having heard learned counsel for the parties, I am of the view that this appeal deserves to be dismissed.
So far as first point which has been raised by learned Senior Counsel for appellants which is in regard to non-filing of suit by all the trustees is concerned, suffice it to say that Order XXXI CPC is wide enough that how and in what manner the suit for and against the trust is to be filed. Rule 1 of this Order speaks about the representation of beneficiaries in suit concerning property vested in trustees etc. According to this Rule, in all suit concerning property vesting in a trustee, executor and or administrator where the contention is between the persons beneficial interested in such property and a third person, the trustee, executor or administrator shall represent the persons so interested and it shall not ordinarily be necessary to make parties to the suit. However, if Court may think it fit order them to join as parties. Rule 2 of this Order speaks about joinder of trustees, executors and administrators and according to this Rule where there are several trustees, executors or administrators, they shall all be made parties to a suit against one or more of them. There is proviso to this Rule, according to which the executors who have not proved their testator''s will and trustees, executors and administrators outside India need not be made parties. Thus, according to Rule 1 and 2 of Order XXXI all the trustees should file suit which is owned by the trust. However, according to me if the other trustees by passing a valid resolution have resolved appointing a particular person to file suit, the suit can be filed by said trustee for the trust. Since the trust is a jurist person the suit can be filed on behalf of trust through that trustee who has been authorized by a valid resolution in that regard by the trust.
If the plaint averments and the denial in written-statement are considered vis-�-vis to them it is gathered that it has been inter alia pleaded by plaintiff in para 1 that vide resolution of the trust dated 24.08.1988 a valid resolution has been passed authorizing trustee Baijnath or Rameshwar Prasad to file suit on behalf of trust. The first and second defendants very cleverly and intelligently avoided to deny this fact although other averments made in this para have been denied. The written-statement in this material aspect of the matter is totally silent. Thus, according to me in view of Order VIII Rule 3 & 5 CPC it amounts to admission of defendants that by passing a valid resolution by the plaintiff trust it has been resolved authorizing trustee Rameshwar Prasad to file suit on behalf of trust. A copy of resolution is also filed alongwith the plaint and it is on record. In this regard I may profitably place reliance on the decision of Supreme Court Seth Ramdayal Jat Vs. Laxmi Prasad, n which the Supreme Court in para 26 has held as under:-
Having regard to the fact that the averments contained in the Para 3 of the plaint were not traversed, the same would be deemed to have been admitted by him in terms of Order 8 Rule 5 of the Code of Civil Procedure. In Gautam Sarup v. Leela Jetly this Court held; (SCC. p.89, para 14)
An admission made in a pleading is not to be treated in the same manner as an admission in a document. An admission made by a party to the lis is admissible against him proprio vigore.
The Division Bench decision in Laxman Prasad (supra) placed reliance by learned Senior Counsel for appellants is not against plaintiff rather it supports its case because in this decision it has been categorically held that if a suit has been filed on behalf of trust it should have been filed by making all the trustees as party to the suit provided such a suit can be brought only by one trustee with the sanction and approval of his co-trustees. Since in the present case there is a valid resolution of trust authorizing Baijnath Dubey and also Rameshwar Prasad to file suit therefore present suit has been validly filed by Rameshwar Prasad and hence it is hereby held that suit has been validly filed.
So far as second contention raised by learned Senior Counsel for appellants which is in regard to authenticity of registration of impugned trust as public trust is concerned, I am of the view that this point is devoid of any substance. On bare perusal of the certified copy of the order of the Registrar appointed under the Act of 1951 dated 15.12.1980 passed in case No. 2B/113/70/90 (Ex.P/21) it is gathered that an order was passed to register the plaintiff trust as registered Public Trust under the Act of 1951. Thereafter an application u/s 30 of Act of 1951 was submitted by first defendant Khumanpuri which was registered as Case No. 5B/113/1981-82. However, vide order dated 4.2.1986 (Ex.P/22) the said application was rejected and the earlier order dated 15.12.1980 (Ex.P/21) was upheld. The first defendant/appellant did not challenge the said order (Ex.P/22) or order (Ex.P/21) in any Court and hence these orders became final.
So far as passing of earlier order by the Registrar under the Act of 1951 dated 26.11.1973 (Ex.D/6) is concerned, suffice it to say that certified copy of the order has not been placed on record and simply a typed copy without any signature of any person has been filed. There is a reference in the document (Ex.P/22) that record of Case No. 1B/113 1971-72 dated 26.11.1973 has been eliminated. The second defendant Lakhanlal was examined as DW1. In cross-examination he has stated that in order to obtain the certified copy of the said order dated 26.11.1973 he submitted requisite application but certified copy could not be obtained. Specifically in para 5 of his cross-examination he has stated that certified copy of the said order has been filed by him in the Municipal Corporation and from where he has brought the typed copy which is Ex.D/6. According to me, the defendants/appellants ought to have summoned that file of Municipal Corporation in which certified copy of the order dated 26.11.1973 was filed by them in order to ascertain what actual order has been passed in order to take out the grain from the chaff. Ex.D/6 is simply a plain typed copy which is not even certified by the person who got it typed. It has been admitted by said defendant in cross-examination para 5 that he got typed copy of Ex.P/5 from the employee of Municipality but that employee has not been examined. Hence, although typed copy Ex.D/6 has been adduced in secondary evidence but it has not been proved.
Section 63 of the Evidence Act speaks about the secondary evidence which means and includes the following;
Section 63 Secondary evidence means and includes;-
(1) certified copies given under the provisions hereinafter contained;
(2) copies made from the original by mechanical processes which in themselves ensure the accuracy of the copy, and copies compared with such copies;
(3) copies made from or compared with the original;
(4) counterparts of documents as against the parties who did not execute them;
(5) oral accounts of the contents of a document given by some person who has himself seen it.
If the evidence of second defendant who has been examined as DW1 and typed copy order dated 26.11.1973 (Ex.D/6) is considered in true perspective it would reveal that this document is not the certified copy, the same has not been made by mechanical process made from the original as envisaged in Clause (2); there is absolutely no evidence of first defendant to state that document (Ex.D/6) was copied from and compared with original by him. The employee who got Ex.D/6 typed from the certified copy has also not been examined, this document is not the counter-part of the document against the plaintiff who did not execute that document. Thus, now only Clause 5 of Section 63 of the Evidence Act remains but first defendant''s evidence is not clinching and he has also not seen the original order dated 26.11.1973. His evidence is not in consonance to illustration (c) to Section 63 of the Evidence Act. Thus, I am of the view that although a typed copy of the alleged order has been marked as Ex.D/6 but in its stricto sensu it cannot be said that it is secondary evidence nor it is proved as secondary evidence in accordance with law.
Apart from what I have held hereinabove even if for the sake of argument it is hereby held that earlier vide order dated 26.11.1973 the plaintiff trust was not registered under the Act of 1951, it would not mean that subsequently it cannot be registered as a public trust. If by considering the facts and circumstances of the case, the Registrar under the Act of 1951 is of the view that purpose, aim, object and functions which are being carried out by the plaintiff trust is for public at large, it would amount to a public trust. In this regard I may profitably place reliance on the decision of Supreme Court Deoki Nandan Vs. Murlidhar, para 5 whereby while drawing the distinction between private and public trust it has been held that if the beneficiaries are general public or class thereof it will be a public trust. This decision has been relied upon by the Supreme Court in Pratapsinhji N. Desai Vs. Deputy Charity Commissioner, Gujarat and Others, . Similar view has been taken by the Supreme Court in another decision The State of Bihar and Others Vs. Charusila Dasi,
I have gone through the reasonings assigned by the learned Trial Court and I am of the view that after appreciating the evidence of the parties vis-�-vis to each other and on the basis of pleadings placed on record, rightly the suit has been decreed. Thus, in the light of the decision of Supreme Court Madhusudan Das Vs. Smt. Narayanibai (Deceased) by Lrs. and Others, I am not inclined to interfere in the findings rendered by the Trial Court and they are hereby affirmed. Resultantly, this appeal fails and is hereby dismissed with cost. Counsel fee Rs. 4000/- if pre-certified.