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Abdul Karim Khan and ors. Vs. Municipal Committee, Raipur - Court Judgment

LegalCrystal Citation
SubjectTrusts and Societies
CourtSupreme Court of India
Decided On
Reported inAIR1965SC1744; 1966MhLJ122(SC); [1965]3SCR300
ActsCode of Civil Procedure (CPC), 1908 - Order 1, Rule 8; Madhya Pradesh Public Trusts Act - Sections 2(4), 2(8), 2(9), 3(1), 3(2), 4(1), 4(3), 4(4), 4(5), 4(6), 5, 5(1), 5(2), 6, 7, 7(1), 7(2), 8(1), 9, 9(1), 9(2), 28 and 35
AppellantAbdul Karim Khan and ors.
RespondentMunicipal Committee, Raipur
Excerpt: holding 'urs' and other ceremonies on particular plot - plot registered under said m.p. act as trust property - appellant contended registration conclusive so respondent can claim no right in land - rejecting appellant's contention trial court dismissed suit - first appellate court upheld trial court' decision which was later confirmed by high court in second appeal - appeal preferred to supreme court - court observed that registration as trust property cannot by itself be conclusive as regards title of said property - fact of respondent not filing objections before registrar immaterial as respondent was not obliged to do so - respondent not preferring appeal against the registrar's order would not also help appellant as respondent was not bound to appeal under said act - held,..........under the madhyapradesh public trusts act (no. 30 of 1951) (hereinafter called the act) astrust property; as such, the respondent can claim no right or title to the saidland. that is the basis on which the appellants claimed injunction against therespondent. 3. the respondent disputed this claim. it was urged in the written statementfiled by the respondent that the land was never and could never be wakfproperty. there was no tomb on the land. there are only two so-called tombs,but they have no significance. the urs is of very recent origin and it isallowed to be held with the licence of the respondent. the plot originally,belonged to private persons and had been acquired by the government in landacquisition proceedings in 1910-11. the respondent got the said land from.....

Gajendragadkar, C.J.

1. This appeal arises from a suit filed by the appellants who are therepresentatives of residents of Nayapara Ward in particular and of the Muslimcommunity of Raipur in general, in which they claimed an injunction restrainingthe respondent, Municipal Committee of Rampur, from committing acts ofencroachment on their rights and the rights of the Muslim community in holdingUrs and other ceremonies on the plot in suit. It appears that at Raipur, thereis a piece of land called 'Fazle Karim's Bada' Khasra No. 649measuring 4.62 acres. Inside this Bada, there are three or four MunicipalSchools. The office of the Electric Power House is also located in one cornerof the land. Behind the School, there is a Pakka platform known as 'SyedBaba's Mazar'. Near the Electric Power House, there is a raised earthplatform on which there is a flag. This flag is called 'Madar Sahib'sJhanda'. Surrounding this land, there is a brick wall which was made bythe respondent several years past. According to the plaint, Urs function isheld every year in front of Syed Baba's Mazar for the last several years. On orabout the 22nd October, 1956, the employees of the respondent started diggingfoundation at the places A, B, C, and D shown on the map attached to theplaint. These digging operations were commenced under the directions of therespondent, because the respondent intended to construct another schoolbuilding on the plot. The appellants then served a notice on the respondent todesist from carrying on the digging operations on the ground that the propertyon which the said operations were being carried out, was a part of the wakfproperty. When the respondent did not comply with the requisition contained inthe said notice, the present suit was filed by the appellants on October 29,1956. This suit has been filed under O.1 r. 8 of the Code of Civil Procedure.

2. The case of the appellants is that the plot of land in suit was old Kabrasthanknown as 'Chuchu's Takia', and is a permanent inalienable wakfproperty. On this plot are tombs of renowned saints like Syed Baba, and MadarSahib's Jhanda. On a part of the plot, every year Urs and other religiousfunctions are performed. In fact, the land has been registered under the MadhyaPradesh Public Trusts Act (No. 30 of 1951) (hereinafter called the Act) astrust property; as such, the respondent can claim no right or title to the saidland. That is the basis on which the appellants claimed injunction against therespondent.

3. The respondent disputed this claim. It was urged in the written statementfiled by the respondent that the land was never and could never be wakfproperty. There was no tomb on the land. There are only two so-called tombs,but they have no significance. The Urs is of very recent origin and it isallowed to be held with the licence of the respondent. The plot originally,belonged to private persons and had been acquired by the Government in landacquisition proceedings in 1910-11. The respondent got the said land from theGovernment in 1922. In 1932-33, the Deputy Commissioner fixed rent of the landwhich is being paid by the respondent eversince. On this land, the respondenthas constructed some schools, and a part of the land which is lying vacant isallowed to be used by the people of the neighbourhood for traffic. Therespondent thus has full right to construct on its own plot of land. Therepresentative character of the appellants was disputed by the respondent and theirright to file the present suit was challenged.

4. On these pleadings, several issues were framed by the learned trialJudge. They covered the title of appellants, the title of the respondent, andthe right of the appellants to file the suit. The issue with which we areconcerned in the present appeal related to the registration of the plot in theregister kept under the relevant provisions of the Act and its effect. Theappellants' contention was that the said registration was conclusive against therespondent and in favour of the appellants' claim. This contention was rejectedby the trial Judge, with the result that the appellants' suit was dismissed.With the findings recorded by the learned trial Judge on the other issues weare not concerned in the present appeal.

5. The matter then went in appeal, and the appellate Court confirmed theconclusions recorded by the trial Court and dismissed the appeal. Theappellants challenged the correctness of the said appellate decree bypreferring a second appeal in the High Court of Madhya Pradesh, but the secondappeal also failed, and that has brought the appellants to this Court byspecial leave. Thus, it would be noticed that the appellants have failed on themerits of their claim in all the courts below, and the technical point raisedby them that the registration of the plot under the relevant provisions of theAct concluded the matter, has also been rejected. It is this last point whichhas been urged before us by Mr. Sinha on behalf of the appellants.

6. Before we deal with this point, however, it would be relevant to mentionhow the property came to be entered in the register kept under the relevantprovisions of the Act. The record shows that the Masjid Nayapara, Raipur, hadbeen entered in the register as a public trust on June 25, 1954 in Case No.23-XXXiii/7 of 1952-53. Certain properties were entered in the said register inrespect of this trust. In 1956, Abdul Karim, Mutawali Masjid Nayapara, Raipurapplied to the Sub-Divisional Officer, Raipur alleging that the property now insuit also belonged to the public trust and should be included amongst itsproperties. On this application, public notice was issued calling upon personsinterested in the property to show cause why it should not be added to theproperties of the wakf. No objection was, however, received; and on October 23,1956, the Sub-Divisional Officer reported that the property be shown againstthe trust. The said report was sanctioned by the Registrar, Public Trusts onApril 22, 1957. That is how the property came to be registered as belonging tothe public trust, and it is on this entry that the whole argument of theappellants is based.

7. In considering the validity of the contention raised by Mr. Sinha beforeus, it is necessary to examine broadly the scheme of the Act and the materialprovisions on which Mr. Sinha relies. The Act was passed in 1951 to regulateand to make better provision for the administration of public religious andcharitable trusts in the State of Madhya Pradesh. Section 2(4) of the Actdefines a 'public trust', and s. 2(8) defines a 'wakf'.'Working trustee' is defined by s. 2(9). Section 3(1) provides that the DeputyCommissioner shall be the Registrar of public trusts in respect of every publictrust; and s. 3(2) imposes on the Registrar the obligation to maintain aregister of public trusts, and such other books and registers and in such formas may be prescribed. Section 4(1) deals with the registration of public trustsand it requires that within three months from the date on which the saidsection comes into force in any area or from the date on which a public trustis created, whichever is later, the working trustee of every public trust shallapply to the Registrar having jurisdiction for the registration of the publictrust. Section 4(3) lays down the particulars which have to be stated by theapplication which is required to be made under s. 4(1). All these particularsare in relation to the nature of the trust, its properties, the mode ofsuccession to the office of the trustees, and other allied matters. Section4(4) empowers the Registrar to decide the merits of the application, while s.4(5) provides for an appeal against his decision which is required to be filedwithin 30 days of the order. Mr. Sinha relies on a specific provision containedin s. 4(5) which says that subject to the decision in such appeal, the order ofthe Registrar under sub-section (4) shall be final, Section 4(6) requires thesigning and verification of the application in the manner laid down in the codeof Civil Procedure for signing and verifying plaints.

8. That takes us to s. 5 which deals with the enquiry to be held by theRegistrar on the application made before him under s. 4(1). Eight points areset down under s. 5(1) which the Registrar has to consider. Section 5(2) laysdown that the Registrar shall give in the prescribed manner public notice ofthe inquiry proposed to be made under sub-section (1) and invite all personsinterested in the public trust under inquiry to prefer objections, if any, inrespect of such trust. Under s. 6 the Registrar has to make his findings on thepoint specified by s. 5(1); and under s. 7, the Registrar causes entries to bemade in the Register in accordance with his findings. Section 7(2) naturallylays down that the entries made under s. 7(1) shall be final and conclusive.Section 8(1) allows a civil suit to be filed against the findings of theRegistrar within six months from the date of the publication of the noticeunder s. 7(1); such a suit can be filed by a working trustee or a person havinginterest in a public trust or any property found to be trust property. Section9 permits applications to be made for change in the entries recorded in theregister. It will be recalled that the application which was made in 1956 byAbdul Karim was under the provisions of s. 9(1). If an application is made forchange in the entries as, far instance, for adding to the list of propertiesbelonging to the trust, a proceedings has to be taken for making the saidchange and this is prescribed by s. 9(2). Section 9(3) makes the provisions ofs. 8 applicable to any finding under s. 9 as they would apply to a findingunder s. 6. These provisions are contained in Chapter II of the Act. ChapterIII deals with the management of trust property; Ch. IV with the problem ofaudit; Ch. V with control; and Ch. VI contains miscellaneous provisions,including s. 35 which confers the rule-making power on the State Government.That, broadly stated, is the nature of the scheme of the Act and the materialprovisions which fall to be considered in the present appeal.

9. Mr. Sinha relies on the fact that under s. 4(5) of the Act, the decisionof the Registrar is made final, subject to the appellate decision, if any; andhe also refers to the right of instituting a suit reserved by s. 8. Hisargument is that if any person who claims interest in the property which isalleged to be trust property fails to satisfy the Registrar about his claim, hecan file a suit under s. 8(1). Section 8(1) allows a suit to be filed, subjectto the conditions prescribed by it, and the right to file such a suit is givento a working trustee, or a person having interest in a public trust or anyproperty found to be trust property. The respondent is interested in theproperty in suit which is found to be trust property, and since it did notavail itself of the right to file a suit within the specified time, the orderpassed by the Registrar must be held to be final and conclusive against itsclaim. If finality does not attach to such an order even after six months haveexpired within the meaning of s. 8(1), then the provision contained in s. 4(5)will serve no purpose whatever. That is the manner in which Mr. Sinha haspresented his case before us.

10. We are not impressed by this argument. In testing the validity of thisargument, we must bear in mind the important fact that the Act is concernedwith the registration of public, religious and charitable trusts in the Stateof Madhya Pradesh, and the enquiry which its relevant provisions contemplate isan enquiry into the question as to whether the trust in question is public orprivate. The enquiry permitted by the said provisions does not take within itssweep questions as to whether the property belongs to a private individual andis not the subject matter of any trust at all. It cannot be ignored that theRegistrar who, no doubt, is given the powers of a civil court under s. 28 ofthe Act, holds a kind of summary enquiry and the points which can fall within hisjurisdiction are indicated by Clause (i) to (x) of s. 4(3). Therefore, primafacie, it appears unreasonable to suggest that contested questions of title,such as those which have arisen in the present case, can be said to fall withinthe enquiry which the Registrar is authorised to hold under s. 5 of the Act.

11. Besides, it is significant that the only persons who are required tofile their objections in response to a notice issued by the Registrar onreceiving an application made under s. 4(1), are persons interested in thepublic trust - not persons who dispute the existence of the trust or whochallenge the allegation that any property belongs to the said trust. It isonly persons interested in the public trust, such as beneficiaries or otherswho claim a right to manage the trust, who can file objections, and it isobjections of this character proceeding from persons belonging to this limitedclass that fall to be considered by the Registrar. It cannot be said that therespondent falls within this class; and so, it would be idle to contend that itwas the duty of the respondent to have filed objections under s. 3(2).

12. It is true, s. 8(1) permits a suit to be filed by a person havinginterest in the public trust or any property found to be trust property. Theinterest to which this section refers must be read in the light of s. 5(2) tobe the interest of a beneficiary or the interest of a person who claims theright to maintain the trust or any other interest of a similar character. It isnot the interest which is adverse to the trust set up by a party who does notclaim any relation with the trust at all. That is why we think the finality onwhich Mr. Sinha's argument is based cannot avail him against the respondentinasmuch the respondent was not a party to the proceedings and could not havefiled any objections in the said proceedings.

13. Then again, the right to file a suit to which s. 8(1) refers is given topersons who are aggrieved by any finding of the Registrar. Having regard to thefact that the proceedings before the Registrar are in the nature of proceedingsbefore a civil court, it would be illogical to hold that the respondent who wasnot a party to the proceedings can be said to be aggrieved by the findings ofthe Registrar. The normal judicial concept of a person aggrieved by any ordernecessarily postulates that the said person must be a party to the proceedingsin which the order was passed and by which he feels aggrieved. It isunnecessary to emphasise that it would be plainly unreasonable to assume thatthough a person is not a party to the proceedings and cannot participate inthem by way of filing objections, he would still be bound to file a suit withinthe period prescribed by s. 8(1) if the property in which he claims an exclusivetitle is held by the Registrar to belong to a public trust.

14. Similarly, the right to prefer an appeal against the Registrar's orderprescribed by s. 4(5) necessarily implies that the person must be a party tothe proceedings before the Registrar, otherwise how would he know about theorder Like s. 8(1), s. 4(5) also seems to be confined in its operation topersons who are before the Registrar, or who could have appeared before theRegistrar under s. 5(2). The whole scheme is clear, the Registrar enquires intothe question as to whether a trust is private or public, and deals with thepoints specifically enumerated by s. 4(3). Therefore, we have no hesitation inholding that the courts below were right in coming to the conclusion that thefact that the property now in suit was added to the list of propertiesbelonging to the wakf, cannot affect the respondent's title to it. On themerits, all the courts below have rejected the appellants' case and have upheldthe pleas raised by the respondent in defence.

15. The result is, the appeal fails and is dismissed with costs.

16. Appeal dismissed.

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