1. This civil revision application has been directed against the judgment and order passed by the learned Judge of the City Civil Court at Bombay on 16-2-1970 in Suit No. 1362 of 1960 on his file.
2. The suit in question was filed by two plaintiffs, who happen to be the trustees of the Bhagoji Balooji Keer Public Religious and Charitable Trust.
This trust was created under a Deed of Trust made by Bhagoji Balooji Keer on 15-5-1930. This Trust has been duly registered under the provisions of the Bombay Public Trusts Act, 1950. The properties included in this Trust admittedly include the property bearing Cadastral City Survey No. 657 situate at Mahim, Shortly after this Trust was made--in fact within seven days thereafter Bhagoji Keer acquired another property bearing Cadastral City Survey No. 656. This property is adjacent to the property bearing Cadastral City Survey No. 657 and some structures have been constructed thereon. One of them is 'Dnyan Mandir' now known as Shree Cinema. It appears that this structure has been constructed on 922 sq. yds. out of City Survey No. 657 and partly on a portion of Cadastral City Survey No. 656.
3. Under the Deed of Trust, Bhagoji Balooji Keer and two others were the trustees. After Bhagoji's death on 24-2-1944 his son Bhalchandra (defendant No. 1) came to be appointed as a trustee in place of his deceased father along with the two other trustees appointed under the Trust. On 23-5-1946 this Bhalchandra was adjudicated insolvent with the result that his estate vested in the Official Assignee and his place as a trustee was taken by Bhagoji's other son. Anant (Defendant No. 3). In 1947, the Official Assignee filed a suit for the administration of the personal estate belonging to Bhagoji in which insolvent Bhalchandra was entitled to a share. That suit was Suit No. 807 of 1947 and the same was filed in the High Court. In that suit, the Court Receiver was appointed as a Receiver of the property on 16-6-1947. The Official Assignee, in due course took possession of Bhalchandra's personal property. On 27-4-1954, new trustees were appointed in the proceeding of Civil Suit No. 625 of 1949 and some time thereafter the two plaintiffs along with defendant No. 3 came to be appointed as the trustees of the Trust. Under orders of the Court passed in the administration suit, the property known as Shree Cinema came to be sold by auction and was purchased by defendant No. 12 on 1-10-1958. Bhalchandra, it appears, had mortgaged his share in all the suit properties in favour of defendant No. 9 and his right, title and interest in those properties were subsequently purchased by defendant No. 9.
4. In 1958, the trustees moved the Charity Commissioner to include some more properties, which form the subject-matter of this suit, as properties belonging to the Trust. That apparently was done under Section 22-A of the Bombay Public Trusts Act 1950 but the Charity Commissioner by his order dated 29-9-1958. held that the inquiry involved complicated questions of law and fact and the matter was. therefore, one which ought to be decided by a competent Civil Court. He, therefore, directed that the trustees may, after obtaining the Charity Commissioner's sanction under Section 51, institute the necessary suit under the provisions of Section 50 of the Bombay Public Trusts Act. The plaintiffs thereafter moved the Charity Commissioner for the necessary sanction under Section 51 and that sanction was accorded on 20-4-1959. Thereafter the suit giving rise to this litigation was instituted by the two plaintiffs on 30-1-1960. In this suit the plaintiffs claimed a declaration that the suit properties belonged to the Trust made by Bhagoji Keer on 15-5-1930. They further claimed possession of those properties, including the properties purchased by defendants 9 and 12. Certain other reliefs, like mesne profits, etc.. were also claimed in the suit.
5. As has already been mentioned, defendant No. 3 happens to be one of the trustees appointed along with the two plaintiffs, but on account of his refusal to join as a plaintiff, he was impleaded as defendant No. 3. Bhalchandra, who was impleaded as defendant No. 1 died during the pendency of the suit and defendants 5 to 8 happen to be his heirs. Defendant No. 2 happens to be the widow of Bhagoji and defendant No. 4 happens to be her daughter. The Official Assignee was impleaded in the suit as defendant No. 10 and the Court Receiver as defendant No. 11 and the Charity Commissioner as defendant No. 13.
6. The suit was resisted by the defendants and on a perusal of the pleadings the following issues were framed and heard as preliminary issues:--
(1) 'Whether this Court has pecuniary jurisdiction to try this suit.
(2) Whether this Court has no jurisdiction and the Charity Commissioner alone has jurisdiction to determine whether the property in question is a Public Charity Trust.
(3) Whether the plaint discloses any cause of action against the defendants.
(4) Whether the suit, as framed is maintainable without leave of the Court in view of the provisions of Order 2. Rule 4 of the Code of Civil Procedure.
(5) Whether the suit as framed is not maintainable for reasons mentioned in paragraph 5 or 7 of the written statement of defendant No. 12.
(6) Whether the plaintiffs have given valid and proper notices under Section 80 of the Civil P. C. and whether proper notices have been served on defendants 10 and 11.
(7) If the answer to the preceding Issue be in the negative whether the plaintiffs are entitled to maintain the suit.
(8) Whether the suit as framed is bad for multi furiousness as alleged in para 8 of the written statement of defendant No. 12'.
On the first issue, the finding of the learned Judge was in the affirmative, on the second he held that the Court had jurisdiction; on the 3rd and 4th issues also he found in the affirmative and on the 5th he held that the suit was maintainable. Finding on issue No. 6 also was recorded in the affirmative and hence on issue No, 7, it was held that the plaintiffs were entitled to maintain the suit. Finding on issue No. 8 was recorded in the negative. After recording these findings, the suit was directed to be proceeded with for further hearing on the remaining issues and was fixed for hearing on 16-3-1970. Defendant No. 12 feeling aggrieved by these findings and the order directing the suit to proceed for hearing on the remaining issues, has come up to this court in revision.
7. In the course of the arguments at the Bar, only two points, were canvassed for my decision. The first is whether the learned Judge was right in taking the view that he had jurisdiction to entertain the present suit and the second is whether the suit is defective for want of the necessary permission of the Court under Order 2, Rule 4 of the Civil P. C. So far as the first point is concerned, the submission of Mr. Daji, appearing on behalf of defendant No. 12, was that the question whether a particular property belongs to a Public Trust is a question which the Charity Commissioner or his Assistant alone was empowered to decide under the provisions of the Bombay Public Trusts Act and the jurisdiction of the Civil Court to decide that question is therefore, expressly barred by the provisions of Section 80 of the Act. In support of this submission my attention was drawn to the provisions of Sections 18, 19, 79 and 80 of the Bombay Public Trusts Act.
8. Section 18 deals with registration of public trusts. Sub-section (1) of Section 18 provides that it shall be the duty of the trustee of a public trust to which this Act has been applied to make an application for the registration of the public trust. Sub-section (2) says that such application shall be made to the Deputy or Assistant Charity Commissioner of the region or sub-region within the limits of which the trustee has an office for the administration of the trust or the trust property or substantial portion of the trust property is situate. Sub-section (4) prescribes the time limit for making such an application and Sub-section (5) pro-vides the particulars which have to be furnished in the application in question. Sub-section (6) provides that every application made under Sub-section (1) shall be signed and verified in the prescribed manner by the trustee or his agent specially authorised by him in this behalf and shall be accompanied by a copy of an instrument of trust. Section 19 provides for inquiry for registration of the trust. It says that on the receipt of an application under Section 18, or upon an application made by any person having interest in a public trust or on his own motion, the Deputy or Assistant Charity Commissioner shall make an inquiry in the prescribed manner and the facts to be ascertained have been enumerated thereafter. The first fact to be ascertained is whether a trust exists and whether such trust is a public trust and the second fact is whether any property is the property of such trust. It is not necessary to enumerate the remaining facts for the purpose of this proceeding. The order passed by the Charity Commissioner or his Assistants is subject to appeals as provided in the Act. Then comes Section 79 and it lays down:--
'79(1) Any question, whether or not a trust exists and such trust is a public trust or particular property is the property of such trust, shall be decided by the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal as provided by this Act.
(2) The decision of the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal, as the case may be shall, unless set aside by the decision of the court on application or of the High Court, in appeal, be final and conclusive'.
Section 80, which follows provides that save as expressly provided in the Act. no Civil Court shall have jurisdiction to decide or deal with any question which is by or under the Act to be decided or dealt with by any officer or authority under the Act, or in respect of which the decision or order of such officer or authority has been made final and conclusive.
9. The combined effect of Sections 79 and 80 is that if a particular question is under Section 79 to be decided by the Charity Commissioner or his Assistant or by the Courts in appeal, the jurisdiction of a civil court to decide that question is expressly ousted by Section 80, unless there is a provision to the contrary contained in the Bombay Public Trusts Act. From the provisions of Section 79 it is clear that the question whether a particular property is the property of the trust is required to be decided by the Charity Commissioner or his Assistants. The words used are 'shall be decided by' and the provision contained in Section 79 is therefore clearly mandatory. Now if under the mandatory provision of Section 79 the question whether a particular property is a trust property is required to be decided by the Charity Commissioner or his Assistants, Section 80 would clearly preclude the civil court from deciding that question, unless the plaintiffs are in a position to show that the jurisdiction of the civil court is saved by any other provisions contained in the Bombay Public Trusts Act.
10. On the side of the plaintiffs an attempt was made to say that the suit in question would fall within the purview of Section 50 of the Bombay Public Trusts Act, 1950 and that being a provision to the contrary, the bar under Section 80 could not possibly arise. The question therefore is whether the present suit could properly be regarded as a suit falling within the purview of Section 50. Section 50, in so far as is material for this proceeding, provides:--
'In any case--
(ii) where a direction is required to recover possession of a property belonging to a public trust 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
The Charity Commissioner after making such enquiry 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 for the recovery of the possession of such property or proceeds thereof'.
There are certain provisos to Section 50, but with those provisos we are not concerned in this proceeding. From the provisions quoted above, it is clear that a suit for the recovery of possession of property or proceeds thereof can be filed by the Charity Commissioner or two or more persons having an interest in the trust after having obtained the Charity Commissioner's consent in writing as provided in Section 51, but the important condition is that the suit must be a suit where a direction is required to recover possession of a property belonging to a public trust or the proceeds thereof, that is to say, that the property in respect of which the suit is instituted must be a property belonging to a public trust. A mere allegation that the property belongs to a public trust would not be sufficient to sustain the suit. The suit must in effect be a suit for the recovery of possession of a property which is shown to belong to a public trust. The submission that the provisions of this section should be liberally construed so as not to defeat the suit of the trustees ignores the plain fact that while construing Section 50 the mandatory provisions of Section 79 cannot possibly be lost sight of and Section 79(1), as I have already indicated, clearly provides that any question, whether or not a trust exists and such trust is a public trust or particular property is the property of such trust, shall be decided by the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal as provided by this Act and Sub-section (2) makes it clear that the decision of the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal, as the case may be shall unless set aside by the decision of the Court on application or of the High Court, in appeal be final and conclusive. Since it is made obligatory on the part of the Deputy or Assistant Charity Commissioner or the Charity Commissioner in appeal to decide whether a particular property is the property of a public charitable trust and since such decision is under Sub-section (2) made final and conclusive, it is plain that the suit permitted under Section 50 must necessarily be a suit where it is not left to the court to decide whether a particular property does or does not belong to a public charitable trust. It is only when the Charity Commissioner or his Assistants discharge their obligation of deciding the question as enjoined by Section 79 that a suit could be instituted by the Charity Commissioner or by two or more persons having an interest in the trust for the recovery of possession of such property. On the side of the plaintiffs, it is argued that to adopt such a construction would drive, the plaintiffs to multiplicity of proceedings. They would in the first place, be required to approach the Deputy Charity Commr. or the Charity Commissioner, as the case may be for the purpose of obtaining a finding that the properties in dispute belong to the public charitable trust in this case and thereafter they would be allowed to proceed with this suit. But it is difficult to see how such a course can be avoided in the face of the plain provisions to which a reference has been made.
11. In Taraben Baldevdas v. Charity Commr. : AIR1957Bom42 the facts were that the plaintiff filed a suit in a civil court against the defendants for a declaration that she was the owner of a certain sum of money lying in deposit with the defendants and no one else had any right, title and interest in that sum. In that suit a preliminary issue was raised whether the suit was barred by the Bombay Public Trusts Act, 1950. During the pendency of the suit the defendants submitted an application before the Deputy Charity Commissioner under Section 19 of the Act inter alia to make inquiries and determine whether the sum lying in deposit with them constituted a trust and whether the trust was a public trust within the meaning of the Act. A preliminary contention raised by the plaintiff that the Deputy Charity Commissioner had no jurisdiction to entertain the application as the question relating to the existence of a trust was involved in the suit, was rejected. Thereafter the plaintiff applied for stay of the proceedings before the Deputy Charity Commissioner under Section 10 of the Civil P. C., 1908 contending that as the same issues fell to be determined in two different proceedings before two different tribunals simultaneously, and the suit instituted by the plaintiff was prior to the institution of the application by the defendants, the proceedings before the Deputy Charity Commissioner were liable to be stayed. On these facts, the Division Bench of this Court held that under the Bombay Public Trusts Act the Civil Court had no jurisdiction to decide the question whether the sum in the hands of the defendant was the property of a public trust and the application before the Deputy Charity Commissioner could not be stayed. This decision does, therefore, support the view that the question whether a particular property belongs to a public trust is within the exclusive jurisdiction of the charity authorities and the Civil Court has no jurisdiction to decide that question. On the side of the plaintiffs reliance was sought to be placed on the observations appearing at page 1073 of the Report. The observations are to the following effect:--
'It was submitted that if jurisdiction of the civil court to decide, whether a particular property is the property of a public trust, is excluded the civil court would have no jurisdiction, even at the instance of the charity Commissioner, or two or more persons who have obtained his consent in writing, to entertain a suit for declaration that a particular property belongs to a public trust and for consequential reliefs. But it has to be noted that the exclusion of jurisdiction of the civil court is made subject to any provision expressly made, and Section 50 being such a provision, jurisdiction of the Civil Court to entertain suits which fall within the description of suits mentioned therein may not be regarded as excluded'.
These observations only support the conclusion that if a suit properly falls within the purview of Section 50, it is saved from the bar arising under Section 80, but, for reasons already indicated the present suit cannot properly be regarded as a suit falling within the purview of Section 50. These observations cannot, therefore, further the case of the plaintiffs.
12. In Kuberbhai v. Purshottamdas (1961) 2 Guj LR 564, the facts were that on 6-8-1952 the 1st defendant applied to the Assistant Charity Commissioner for registration of the trust pertaining to the temple of Shri Ramji at Detroj, of which the 1st defendant claimed to be the Mahant. The Assistant Charity Commissioner held an inquiry and ascertained that the 1st defendant was the Mahant and manager of the temple and made an entry in the register kept under Section 17 of the Bombay Public Trusts Act 1950, of the name of the 1st defendant as the Mahant and manager and also an entry to the effect that the mode of succession to the office of the Mahant was from the Guru to the Chela. Against these findings, the plaintiffs filed an application before the Deputy Charity Commissioner who rejected that application. Aggrieved by the order of the Deputy Charity Commissioner, the plaintiffs preferred an appeal before the Charity Commissioner but that appeal also met with the same fate and the appeal was dismissed on 17-9-1955. The plaintiffs did not challenge that order under Section 72 of the Act which entitles any person aggrieved by the decision of the Charity Commissioner inter alia under Section 70 to apply to set aside the said decision. The entries made by the Assistant Charity Commr. and confirmed by the Deputy Charity Commissioner and the Charity Commissioner consequently became final and conclusive. The plaintiffs thereafter filed the suit after obtaining the sanction of the Charity Commissioner as provided by Section 51 of the Act. The plaintiffs asked for a declaration that the three houses and the plot in suit and other movable properties belonged to the public trust, that Survey No. 141 of Detroj also belonged to the trust and that its alienation by the 1st defendant was void. The plaintiffs also prayed for possession of those properties and the question was whether the Court had jurisdiction to decide whether the particular properties did or did not belong to a public trust. Shelat, J.. as he then was ruled that a complete Code is provided in the Bombay Public Trusts Act for dealing with matters set out in Sections 18 and 19 and recourse must be had to the procedure laid down in the Act. The provisions of Section 80 of the Act bar the jurisdiction of a Civil Court in the two categories of matters, viz. (1) those questions left under the Act to be decided by the Assistant or the Deputy Charity Commissioner under Sections 18 and 19 and (2) those which the Act has made final and conclusive under Section 79(1) and Section 21(2) of the Act. It was further ruled that the plaintiffs having had recourse to Section 70 and not haying followed up their remedy under Section 72 are bound by the decision of the Charity Commissioner in their appeal before him. This decision also is therefore another authority in support of the view that the Civil Court is by Section 80 precluded from deciding the questions which it is the duty and function of the Charity Authorities to decide under the provisions of Section 79. On the side of the plaintiffs, an attempt was made to distinguish the decision by pointing out that the plaintiffs in that case had already appeared before the charity authorities. That, however, does not make any difference in principle. What is important is that the High Court of Gujarat has come to the conclusion that the duty and function to decide whether a particular property does or does not belong to a public trust are by Section 79 entrusted to the Charity authorities and the decision of those authorities is made final under Sub-section (2) of Section 79 and the Civil Court is consequently precluded from deciding that question under Section 80 of the Act.
13. In Rajgopal Raghunathdas v. Ramchandra : (1967)69BOMLR472 a Division Bench of this Court consisting of the Hon'ble the Chief Justice and Mr. Justice Bal was dealing with a case where plaintiffs in their capacity as trustees had sued a trespasser for possession of property belonging to the trust and the contention was that the suit under Section 50 of the Bombay Public Trusts Act was not maintainable for want of the Charity Commissioner's sanction. That contention was overruled by the Division Bench, and the learned Chief Justice, speaking for the Division Bench, pointed out that the trustee who is in the position of a legal owner of property can sue to recover the property from persons, who are without any right, title or interest in themselves, without obtaining any previous sanction of the Charity Commissioner. In that case, the property was already declared to be a property belonging to the trust and it was therefore, held that the trustees without recourse to Section 50 could institute a suit in their own right. In that very case it has been pointed out that Section 50 of the Bombay Public Trusts Act, 1950 is not restrictive but cumulative in its effect. It only enables persons having an interest to sue and does not prohibit any suits being filed by trustees of public trusts. Relying on these observations. Mr. Desai appearing on behalf of the plaintiffs, submitted that right to bring a suit under Section 50 was only one of the rights available to a trustee and that did not take away his ordinary right to file a suit for possession of trust property independently of Section 50. This no doubt is so, but the point is that the suit in the aforesaid case was a suit in respect of property which was already declared to be a property belonging to a trust and therefore, whether a suit was brought under Section 50 or whether it was brought independently of Section 50, the Civil Court was not going to decide the question which by Section 79 is required to be decided by the Charity authorities. Therefore merely by pointing out that Section 50 is not restrictive but cumulative, the plaintiffs cannot get over the provisions of Section 79 and say that their suit as prayed is maintainable under Section 50.
14. On the side of the plaintiffs, it was pointed out that they had in fact approached the charity authorities for getting an order that the properties in dispute are properties belonging to the trust but the Deputy Charity Commissioner by his order dated 29-9-1958 held that the matter was too complicated for him to decide and the best course, therefore, was to refer the parties to a suit under Section 50 after obtaining the Charity Commissioner's sanction under Section 51. The submission was that in passing such an order the Deputy Charity Commissioner was within his own rights, because while the words used in Sections 18 and 19 are 'shall' the word used in Section 22-A is 'may'. But if Section 22-A is read as a whole it is abundantly clear that the provisions of Sections 19, 20 and 21 and 22 are applicable to the inquiry under Section 22-A also. It may be that the Deputy or Assistant Charity Commissioner has a discretion to inquire into certain particulars in regard to the Trust, but those particulars clearly must not be particulars about the inquiry of which an imperative duty has been cast under Sections 18 and 19. As I have already pointed out, under Section 19(ii) an imperative duty has been cast on the Charity authorities to determine whether any property is the property of such trust, and whenever an inquiry for this purpose is sought, it is certainly not open to the Charity authorities to avoid their responsibility and to say that the matter is too complicated and the parties could, therefore, seek their relief in a regular suit.
15. The ruling in Shri Adinath Tirthankar Jain Mandir v. Shantappa : AIR1967Bom86 , to which a reference was made by Mr. Desai in the course of his submissions at the Bar cannot possibly make any difference to the view I am taking. In that case, the facts were that a person, who was not a party to the proceedings under the Bombay Public Trusts Act, 1950. found that his property had been registered as trust property pursuant to the said proceedings and it was held that he was not precluded under Sections 79 and 80 of the Act from filing a suit for declaration of his title to such property in a Civil Court. In taking that view the learned Judge seems to have relied on the following observations of a Division Bench of this Court consisting of Patel and K. K. Desai, JJ. made in First Appeal No. 353 of 1959, decided on 19-11-1962 (Bom). Those observations are to the following effect:--
'............ It is difficult, however, to assert that the Charity Commissioners have got exclusive jurisdiction where titles of third parties may be involved. While requiring them to decide statutory issues, if finality were to be attached to certain matters, we would be permitting them indirectly to decide very complicated and important questions of facts of heredity and legitimacy as well, which in all probability, in view of the wording of Section 19, may not have been intended. Even apart from this, the procedure prescribed is also a summary procedure, which is highly unsuited to any inquiry about the titles of third persons.........'
These observations cannot, however, have any application to the facts of the present case. We are not here dealing with a case where a person, who was not a party to the proceedings under the Bombay Public Trusts Act, 1950 finds that his property is registered as trust property pursuant to the said proceedings. We are dealing with a suit instituted by the trustees themselves and the trustees at any rate cannot say that it was not necessary for them to approach the charity authorities in accordance with the provisions of Sections 18, 19 and 79. Section 18(2) enjoins that it shall be the duty of the trustees of a public trust to which this act has been applied to make an application for the registration of the public trust and once this imperative obligation is required to be discharged, it naturally follows that they must also take care to get all the trust properties entered in the register of trusts. If they do so, the charity authorities naturally have got to discharge their own obligations imposed by Section 79 and once they pass their order, that order is made final and conclusive and a civil court is by Section 80 clearly precluded from deciding those questions.
16. Mr. Desai, appearing on behalf of the plaintiffs, made a final attempt to save the situation by pointing out that in any case, one of the trust properties was involved in this suit. He pointed out that the property 'Dnyan Mandir' alias Shree Cinema purchased at the Court auction by defendant No. 12 has in fact been constructed partly on Cadastral City Survey No. 657, although a part of it is constructed on the adjoining plot bearing Cadastral City Survey No. 656 also. The argument, therefore, was that the plot bearing Cadastral City Survey No. 657 at any rate is a property belonging to the Trust and if that is the position there is no reason why the plaintiffs cannot come to Court under Section 50. But while the plaintiffs could come to Court for relief in respect of Cadastral City Survey No. 657, which is already declared to be a trust property, they could not possibly claim any relief in respect of the other property bearing Cadastral City Survey No. 656, which is not yet declared to be a property belonging to the trust. The decision of the Supreme Court in Sugra Bibi v. Haji Kummu : 3SCR83 , to which a reference was made by Mr. Desai can possibly have no application to the facts of this case. What has been held there is that where in a Wakf deed there were certain provisions in favour of the family members of the founder along with some other provisions in favour of the public and the suit was brought for removal of Mutwalli and appointment of plaintiff's son in his place, the mere fact that there were certain provisions in favour of the family members of the founder along with some other provisions in favour of the public, would not take the case put of the provisions of Section 92 of the Civil P. C. as there was a substantial portion of the income of the Wakf properties to be spent for purposes of charitable and religious nature. These observations cannot certainly support the submission that the trustees can come to Court under Section 50 even in respect of property which is not held by the charity authorities to be a property belonging to the trust.
17. In the view I have taken, the learned Judge was in error in taking the view that the suit of the plaintiffs did fall within the purview of Section 50 and the bar under Section 80 of the Bombay Public Trusts Act could not consequently arise. But even though I have taken the view that the suit under Section 50 is not competent, it seems to me that it would hardly be in the interest of justice to throw away the suit on the basis of this finding. The suit has been instituted by the trustees in respect of property alleged to be of the ownership of the Trust as far back as 30-1-1960 and now in 1971 it would hardly be fair to dismiss the suit and drive the plaintiffs to a separate proceeding under Sections 18, 19 and 22 of the Bombay Public Trusts Act. The fairest course in this case would. I think be to direct that the proceedings of this suit shall be stayed and in the meantime the plaintiffs would approach the charity authorities to obtain a declaration under Section 22-A that the properties in suit belong to the Trust made by the late Bhagoji Keer. In this connection, it may be useful to note the provisions of Section 31(1) of the Bombay Public Trusts Act, 1950. That sub-section only says:--
'No suit to enforce a right on behalf of a public trust which has not been registered under this Act shall be heard or decided in any Court'.
The bar therefore, is to the suit being heard and decided and not to the suit being instituted. In the present case so far as certain properties are concerned, they are not registered as properties belonging to the Trust and as soon as that defect is overcome, the bar under Section 31(1) would no longer arise. It is to be hoped that after the plaintiffs approach the charity authorities they would deal with the matter as expeditiously as possible.
18. That leaves the other contention of Mr. Daji that the suit is bad for Want of the necessary leave to the Court under the provisions of Order 2, Rule 4 of the Code of Civil Procedure. That Rule provides:--
'No cause of action shall unless with the leave of the Court, be joined with a suit for the recovery of immovable property, except
(a) claims for mesne profits or arrears of rent in respect of the property claimed or any part thereof.
(b) claims for damages for breach of any contract under which the property or any part thereof is held.
(c) claims in which the relief sought is based on the same cause of action.
Provided that nothing in this rule shall be deemed to prevent any party in a suit for foreclosure or redemption from asking to be put into possession of the mortgaged property'.
The submission founded on this Rule was that the only causes of action which could be joined without the leave of the Court Were the three enumerated in Rule 4, but in the present case, besides claiming mesne profits, the plaintiffs had also made certain prayers not covered by Rule 4. In that connection, my attention was particularly drawn to the relief claimed in Clause H of paragraph 22 of the plaint. That clause says that defendants 1 to 8 and 10 and 11 or any of them may be ordered to pay to the plaintiffs Rs. 4,973.80 p. or any other sum being the price of 125 sq. yds. wrongfully sold out of Trust C. S. No. 657 and received by the said defendants or any of them by sale of plot No. 1 & Plot No. 2 mentioned in particulars and conditions of sale in suit No. 807 of 1947. It must, I think be conceded that this is not a claim which could properly be joined in a suit for possession without the leave of the Court in the face of the express provisions of Order 2, Rule 4 of the Civil P. C. Order 2, Rule 3, to which the learned Judge has referred, merely says which causes of action could be joined. That Rule says:--
'Save as otherwise provided, a plaintiff may unite in the same suit several causes of action against the same defendant, or the same defendants jointly. and any plaintiffs haying causes of action in which they are jointly interested, against the same defendant or the same defendants jointly may unite such causes of action in the same suit'. This Rule cannot however, justify the inclusion of the relief claimed in Clause H of paragraph 22 of the plaint. The learned Judge has further referred to Order 1, Rule 3 of the Civil P. C. What that rule provides is that all persons may be joined as defendants against whom any right to relief in respect of or arising out of the same act or transaction or series of acts or transactions is alleged to exist whether jointly, severally or in the alternative, where if separate suits were brought against such persons, any common question ,of law or fact would arise. While this Rule may enable the plaintiffs to get over the objection of multi furiousness, it cannot certainly enable them to successfully meet the objection founded on Rule 4 of Order 2, but the objection in this behalf is at best a technical objection and the same can. I think be without any difficulty removed by granting to the plaintiffs the necessary leave as contemplated by the Rule. I am told that such a request was made in the trial Court itself, but there was no occasion for that Court to grant that prayer because of the view that the joinder of causes of action was held not to offend the provisions of Order 2, Rule 4. Although I have taken the view that it does offend the provisions of Order 2, Rule 4 of the Civil P. C., I propose to get over the objection by granting to the plaintiffs the leave in question at this stage. The second objection does not therefore survive.
19. In the view I have taken, the Civil revision application is partly allowed and the suit shall be returned to the trial Court for being proceeded with and disposed of according to law in the light of this judgment. The costs of this Civil Revision Application shall abide and follow the final result of the suit.