Second Appeal No.74 of 1986

14th November, 2006

Petitioner Counsel: V. C. SOLSHE
Respondent Counsel: V. S. DIGHE,R. B. DESHMUKH

Cases Cited:
Church of North India Vs. Lavajibhai Ratanjibhai, 2005 AIR SCW 2738 [Para 3,4,6,18,19,20]
Keki Pestonji Jamadar Vs. Khodabad Merwan Irani, AIR 1973 Bom. 130 [Para 3,19]
Ramnarayan s/o. Manilal Sahu through LRs. Smt. Kamal wd/o. Ramnarayan Sahu Vs. State of Maharashtra, 2005(3) ALL MR 397=2005(2) Mh.L.J. 95 [Para 3,19]
Sainath Mandir Trust, Amravati Vs. Vijaya w/o. Vithalrao Mandale, 2003(4) ALL MR 1063=2003(4) Mh.L.J. 187 [Para 19]
Mahibubi Abdul Aziz Vs. Sayed Abdul Majid, 2001(3) ALL MR 104=2001(2) Mh.L.J. 512 [Para 19]

JUDGMENT

JUDGMENT :- This second appeal is directed against the judgment and decree passed by the learned Additional District Judge, Latur in Civil Appeal No.172 of 1981, dated 20-2-1986. The appellant deceased Keshav in this second appeal was the original plaintiff, who had filed Regular Civil Suit No.476 of 1978 in the Court of learned Civil Judge S. D. Latur for declaration and injunction, against the Charity Commissioner, Maharashtra State, Mumbai, State of Maharashtra and others. Said suit was decreed by the learned Civil Judge S. D. by his judgment and decree passed on 21-9-1981. The parties hereinafter, are referred to their status as the plaintiff and defendants.

2. Second Appeal was admitted by this Court by the order passed on 19-3-1986. However, no substantial question of law was formulated. Therefore, I heard learned Counsel for the parties on the grounds involving substantial questions of law on 10-11-2006. Following are the grounds involving substantial questions of law, framed by this Court on 10-11-2006.

Ground No.6 : Whether the Inam was the only question had to be decided by the Civil Court in order to consider the question of the applicability of the Act and the said question was completely out side the scope of the was completely out side the scope of the Trust Act. Therefore, there is no bar of section 80 of the Bombay Public Trusts Act to a Civil Court.

Ground No.10 : It is an error to hold that the suit is beyond time.

3. Shri. Solshe, learned Counsel appearing for the appellant submits that the suit filed by the plaintiff is maintainable and the trial Court has justifiably passed a decree in favour of the plaintiff. He also submits that the cause of action arose as described in the plaint and suit filed by the plaintiff is well within limitation. He relied upon the judgments of the apex Court in the matter of Church of North India Vs. Lavajibhai Ratanjibhai and others, AIR 2005 SCW 2738 and Keki Pestonji Jamadar and another Vs. Khodabad Merwan Irani and others, AIR 1973 Bom. 130. He also relied upon the judgment of this Court in the matter of Ramnarayan s/o. Manilal Sahu through LRs. Smt. Kamal wd/o. Ramnarayan Sahu and others Vs. State of Maharashtra, 2005(2) Mh.L.J. 95 : [2005(3) ALL MR 397].

4. Learned Counsel Shri. Deshmukh, appearing for respondents 3 to 9 submits that the first appellate Court has rightly reversed the judgment and decree passed by the trial Court. The trust is registered on 23-1-1964 and the suit property is the trust property and therefore, Civil Court has no jurisdiction. He also relied upon the judgment of the apex Court in the case of Church of North India (supra).

5. Shri. Dighe, learned Assistant Government Pleader supports the judgment of the first appellant court. He, however, fairly admits that the State of Maharashtra and Charity Commissioner, under Section 96 of the Code of Civil Procedure had filed Appeal No.92 of 1982, challenging the judgment and decree passed in the suit before the first appellate court, which was subsequently withdrawn.

6. In the matter of Church of North India (supra), the apex Court has held :-

"The principle enunciated in each of the decision laid down relate to the fact-situation obtaining therein. In each case indisputably the list arose for determination of a question relating to interpretation of one or the other clause enumerated in different provisions of the BPT act which come either within the exclusive jurisdiction of the statutory authorities or otherwise. The Civil Court will have no jurisdiction in relation to a matter whereover the statutory authorities have the requisite jurisdiction. On the other hand, if a question arises, which is outside the purview of the Act or in relation to a matter, unconnected with the administration or possession of trust property, the Civil Court may have jurisdiction. In this case, having regard to the nature of the lis, the jurisdiction of the Civil Court was clearly barred."

Thus, the application of principles laid down have to be considered in relation to the fact situation obtaining in a case. I am therefore, referring to the pleadings of the parties and facts obtaining in the case at hand.

7. Plaintiff's agricultural land bearing Gut No.122/A admeasuring 22 acres and 20 gunthas situated at village Ganeshwadi is the subject matter of the suit. It is alleged by the plaintiff that the suit property was madad-mash land. The muntakhab dated 29-10-1348 Fasli stands in the name of Chanchal Bharati, ancestor of the plaintiff. The plaintiff had inherited the suit land by succession. The suit property is purely madad-mash land. No service or condition whosoever is attached to it. The plaintiff has been in possession of the above land since the time of his ancestors for more that 70 years as inamadar and owner. The learned Assistant Charity Commissioner, Aurangabad without jurisdiction, wrongly and contrary to the provisions of law, started an enquiry regarding the suit land under the provisions of the Bombay Public Trusts Act, 1950 ("Act of 1950"). Ultimately, it is held by the learned Assistant Charity Commissioner, Aurangabad that the suit property is service inam and declared it as a public trust. The plaintiff had no knowledge about the said decision. The plaintiff perceived only after notice was received by him from defendant No.1 i.e. Charity Commissioner on 26-11-1976 calling upon him to submit the accounts. The suit property cannot be treated as a trust property. The Charity Commissioner had absolutely no jurisdiction to entertain any enquiry and decide its nature under the provisions of the Act of 1950. The enquiry and ultimate order passed is without jurisdiction, null and void and not binding upon the plaintiff. In view of the nature of the property, enquiry under the Inam Abolition Act was necessary to be made by defendant No.2 and the plaintiff being the only person entitled to the occupancy rights, he should have been declared as an occupant. The suit property stands vested with the Government under the provisions of Inam Abolition Act and the plaintiff alone is entitled legally to be declared as occupant and also entitled to retain his valid possession without any hindrance. The plaintiff is not liable for furnishing the accounts. The act of defendant No.1 amounts to obstruction to the interest and possession of the plaintiffs. The date of notice is the date of cause of action for the suit; i.e. 26-11-1976.

In paragraph No.10 of the plaint, it is alleged that the suit property is not a public or private trust. Ultimately, it is prayed; (1) that it may be declared that the order dated 23-1-1964 passed by the Assistant Charity Commissioner is null and void and ultra vires and not binding on the plaintiff and also that the suit property is not a public or private trust, and (2) that the plaintiff be declared to be entitled to hold the suit land, defendant No.1 be restrained from claiming any accounts or taking any action under the above mentioned decision against the plaintiff or cause any obstruction in the possession of the plaintiff.

8. Joint written statement (Exhibit 19) is filed on behalf of defendants 1 and 2. In paragraph No.3, it is pleaded that ".....As a matter of fact, Shri. Mahadeo Mandir, Ganeshwadi was registered as the public trust under the provisions of the Act of 1950 on 23-1-1964. The Assistant Charity Commissioner, Aurangabad while holding enquiry has recorded the evidence of Keshavbuwa (plaintiff) and Narayanbuwa. The certificate of registration was issued to him and Shri. Keshavbuwa, sole trustee, had accepted the nature of trust and deposed to the effect before the Assistant Charity Commissioner, Aurangabad and ultimately, held the suit land as inam land and declared it as a public trust. However, now, he claims the said property as his private property, which is wrong and baseless. The plaintiff has filed this suit for declaration when the returns were called form him. The order passed by defendant No.1 is final according to the provisions of law and it is binding upon the plaintiff. Defendant No.1 was competent to pass the said order and had the jurisdiction. Hence the suit is not tenable. The plaintiff is estopped from claiming the land as his private property, in view of accepted position in 1964.

In paragraph No.4 of the written statement, reference is made to the certificate placed on record by the plaintiff during the enquiry before defendant No.1. It was a certificate issued by Sarpanch of Gram Panchayat, certifying that there is a temple in Ganeshwadi and it is managed by the plaintiff and S. No.122/A i.e. the suit property belongs to the temple. The plaintiff had also admitted that the temple is public. As such temple in question is the public trust and the land in dispute is service inam land. ...

November 14, 2006

9. It is appropriate to refer to relevant provisions of the Act of 1950.

Section 18 of the Act of 1950 deals with the registration of the public trust. It is provided under sub-section (1) of Section 18 of the Act of 1950 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) of Section 18 of the said Act provides for filing of such an application 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 situated, as the case may be.

Sub-section (3) of Section 18 of the said Act provides for filing of such application in writing and in such form accompanied by such fees as may be prescribed.

Sub-section (4) of Section 18 provides for details of the public trust created before this Act was applied or after the enforcement of the provisions of the Act of 1950 and within a period of three months of its creation.

Sub-section (5) of Section 18, inter alia, provides the particulars to be furnished by such applicant, who seeks registration of the public trust. Amongst these particulars, clause (iii) of sub-section (5) of Section 18 refers to the list of the movable and immovable trust property and description and particulars of such property as may be sufficient for the identification thereof.

Sub-section (6) of Section 18 of the Act lays down 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, if such instrument had been executed and is in existence.

In case the application received by the competent authority under Section 18, it is noticed that it is incomplete in any particulars or does not disclose full particulars of the public trust, the authority should return the application to the trustee with direction for resubmission of the same with full particulars as provided under sub-section (6-A) of Section 18 of the Act.

Under sub-section (7), it is further provided that such trustee of the pubic trust is under duty to send a memorandum in the prescribed form containing the particulars including the name and description of the pubic trust, relating to the immovable property of such public trust to the sub-registrar of the sub-district appointed under the Indian Registration Act, 1908, in which such immovable property is situate for the purpose of filling in Book No.I under section 89 of the Act. Proviso of sub-section 7 of Section 18 permits submission of such memorandum within a period of three months from the date of creation of the public trust. However, it obligates that it shall be signed and verified in the prescribed manner by the trustee or his agent specifically authorised in this behalf.

10. From the scheme of Section 18 of the Act of 1950, as noted above, it manifests that a duty is cast upon the trustee of a public trust to make an application in consonance with Section 18 of the Act of 1950.

11. "Public trust" is also defined under Section 2(13) of the Act, which reads thus:

" "public trust" mean an express or constructive trust for either a public religious or charitable purpose or both and includes a temple, a math, a wakf church, synagogue, agiary or other place of public religious worship, a dharmada or any other religious or charitable endowment and a society formed either for a religious or charitable purpose or for both and registered under the Societies Registration Act, 1860."

12. Section 19 of the Act of 1950 lays down the procedure/inquiry for registration of the application received by the authority under section 18 of the Act of 1950. On receipt of such 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, it is provided under Section 19 of the Act, make an inquiry in the prescribed manner for the purpose of ascertaining -

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

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

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

(iv) the names and addresses of the trustee and manager of such trust,

(v) the mode of succession to the office of the trustee of such trust,

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

(vii) the amount of gross average annual income and expenditure of such trust, and

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

Thus, under section 19, the inquiry, as noted above, is contemplated.

Section 20 of the Act of 1950 provides that on completion of the inquiry provided for under section 19, the Deputy or Assistant Charity Commissioner shall record his findings with the reasons therefor as to the matter mentioned in the said section and may make an order for the payment of the registration fee.

Sub-section (1) of section 21 of the Act of 1950 obligates the Deputy or Assistant Charity Commissioner for making the entries in the register kept under section 17in accordance with the findings recorded by him under section 20 or if appeals or applications are made as provided by this Act, in accordance with the final decision of the competent authority provided by this Act.

Sub-section (2) of section 21 lays down that the entries so made shall, subject to the provisions of this Act and subject to any change recorded under the following provisions, be final and conclusive.

13. Now turning to the facts of the present case, the plaintiff has alleged in paragraph No.2 of the suit that public trust is registered on 22-1-1964. Copy of the order passed by the Assistant Charity Commissioner, Aurangabad, is placed on record and is at Exh.43. From this copy, it appears that Application No.830/1962 was filed by Keshavbuwa Narayanbuwa i.e. the plaintiff for registration of the public trust "Mahadeo Mandir". From this copy, it appears that certificate of Sarpanch Exh.10 (exhibit was given in the Application No.830/1962) was filed by the plaintiff/applicant. That was certificate given by the Sarpancha of the Grampanchayat, Himpalgaon, within whose jurisdiction village Ganeshwadi is situated. In this certificate, it is mentioned that there is a temple in Ganeshwadi and it is managed by the applicant and the land Survey No.122 belongs to the temple. Reference of the deposition of the applicant/plaintiff Keshavbuwa at Exh.11 is made in the said order. This order Exh.43 is passed by the learned Assistant Charity Commissioner, Aurangabad Region, Aurangabad, on January 23rd, 1964 and the land Survey No.122 is held to be a trust property. In accordance with section of 21 of the Act of 1950, entry is accordingly taken in the register kept under section 17 of the Act. The certificate dated 27-7-1981 is on record at Exh.59. It is a duty cast upon the Deputy/Assistant Charity Commissioner for making such inquiry. The registration of the public trust contemplated under section 19 of the Act of 1950 is to be ordered by the Deputy or Assistant Charity Commissioner. Thus, the duty is cast upon the Deputy or Assistant Charity Commissioner under sub-section (1) of section 21, as noted above, to make entry in the register kept under section 17 in accordance with the findings recorded by him under section 20 or if appeals or applications are made as provided by this Act, in accordance with the final decision of the competent authority provided by this Act.

Here, in the present case, such inquiry is made and certified copy is at Exh.59. Thus, the ownership of the trust, after its registration, is recorded in the P.T.R. record by the authority concerned. Therefore, the legal consequence is that the public trust in question is the owner of suit property land Survey No.122, admeasuring 22 acres and 20 gunthas, which is mentioned in the P.T.R. extract Exh.59.

14. The prayer made by the plaintiff in the suit, as noted above, is declaration that the order dated 23rd January, 1964, passed by the Assistant Charity Commissioner, is null and void and ultra vires and not binding on the plaintiff and also that the suit property is not the property of a public or private trust. Thus, it is a two-fold prayer made in prayer clause (1) by the plaintiff. In the first instance, plaintiff is seeking declaration regarding order passed by the learned Assistant Charity Commissioner, Aurangabad Region, Aurangabad, on January 23rd, 1964, to be null and void and ultra vires and not binding on the plaintiff.

In this respect, again few sections of the Act of 1950 can be referred to. Appeals from findings of the Deputy or Assistant Charity Commissioner are provided under Section 70 of the Act of 1950. Section 70 of the Act of 1950 reads thus;

"70(1) - An appeal against the finding or order of the Deputy or Assistant Charity Commissioner may be filed to the Charity Commissioner in the following cases :- (a) the finding and order, if any, under section 20;

(b) the finding under section 22;

(b-1) the findings under section 22-A;

(c) the finding under section 28;

(d) the order under sub-section (3) of section 79-AA.

(2) No appeal shall be maintainable after the expiration of sixty days from the recording of the finding or the passing of the order, as the case may be.

(3) The Charity Commissioner may, after hearing the appellant, or any person appearing on his behalf, for reasons to be recorded in writing either annual, revere, modify or confirm the finding or the order appealed against or he may direct the Deputy or Assistant Charity Commissioner to make further inquiry or to take such additional evidence as he may think necessary or he may himself take such additional evidence."

Here, sub-clause (a) of sub-section (1) of section 70 is material. It provides that the finding or order, if any, under section 20, can be challenged by way of appeal to be filed to the Charity Commissioner. In the present case, Undisputedly, order under section 19 and 20 is passed in Application No.830/1962, by the learned Assistant Charity Commissioner, Aurangabad, on 23-1-1964. However, it is pertinent to note that no such appeal is filed by the plaintiff before the Charity Commissioner at any point of time.

Apart from the appellate jurisdiction, Charity Commissioner is also vested with the revisional jurisdiction under section 70-A of the Bombay Public Trusts Act, 1950. It reads thus:

"70-A(1) The Charity Commissioner may in any of the cases mentioned in section 70, either suo motu or an application call for and examine the record and proceedings of such case before any Deputy or Assistant Charity Commissioner for the purpose of satisfying himself as to the correctness of any finding or order recorded or passed by the Deputy or Assistant Charity Commissioner and may either annual, reverse, modify or confirm the said findings or order or may direct the Deputy or Assistant Charity Commissioner to make further inquiry or take such additional evidence as he may think necessary or he may himself take such additional evidence :

Provided that the Charity Commissioner shall not record or pass any orders without giving the party affected thereby an opportunity of being heard.

(2) Nothing in sub-section (1) shall entitle the Charity Commissioner to call for the examine the record of any case -

(a) during the period in which an appeal under section 70 can lie against any finding recorded by the Assistant or Deputy Charity Commissioner in such case, or

(b) in which an order has been passed either in an appeal made under section 70 or 71 or on an application under section 72."

In the present case, it is also not the case alleged by the plaintiff that any Revision Application resorting to section 70-A was filed by the plaintiff to the Charity Commissioner challenging the judgment and order passed in Application No.830/1962, dated January 23rd, 1964.

15. Thus, the order passed in Application No.830/1962, dated 23rd January, 1964, was not challenged by filling an appeal or revision by the applicant before the Charity Commissioner. On examination of the provisions of the Act of 1950, it appears that remedy by way of revision is made available to the aggrieved person. A mechanism, thus, seeking redressal, is made available under section 70 and 70-A of the Act of 1950. It was the proper course for the plaintiff, if at all, he was aggrieved by the order passed in Application No.830/1962, dated 23rd January, 1964, to challenge the said order in accordance with the provisions of the Act of 1950, before the competent forum. Having not done so, the act of filling suit on September 13th, 1978, cannot be said to be legally permissible for the plaintiff. Thus, in my opinion, the first part of the declaration sought by the plaintiff that the order passed by the Assistant Charity Commissioner, dated January 23rd, 1964 is null and void and ultra vires and not binding on he plaintiff, cannot be considered by the Civil Court in a Civil Suit.

16. Another limb of the prayer clause (1) in the suit, is a declaration that the suit property is not the property of a public or private trust. For this purpose, it is necessary to refer to section 79 of the Act of 1950. It reads thus;

"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."

It is manifest from the scheme of section 79 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 Commission in appeal as provided by this Act.

Sub-section (2) of Section 79 gives finality and conclusiveness to such decision of the Deputy or Assistant Charity Commissioner or the Charity Commission in appeal, as the case may be, unless set aside by the decision of the Court on application or the High Court. Thus, finality is attributed under sub-section (2) of Section 79, as noted above. Exclusive jurisdiction, for deciding a question, whether or not a trust exists and such trust is a public trust or particular property of such trust, is within the ambit of Deputy or Assistant Charity Commissioner or the authority under the Act of 1950, as provided under section 79. Finality is given under sub-section (2) of section 79. The provision laid down under section 79 is further reinforced specifically by section 80 of the Act of 1950. It reads thus :

"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, and in respect of which the decision or order of such officer or authority has been made final and conclusive."

Thus, section 80, as noted above, bars the jurisdiction of the Civil Court 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, and in respect of which the decision or order of such officer or authority has been made final and conclusive. In my view, therefore, if the provisions laid down under section 79 and section 80 are read conjointly, exclusion of the Civil Court regarding any question, as to whether or not a trust exists and such trust is a public trust or particular property is the trust property of such trust, is explicitly made clear. Therefore, the second limb of prayer clause (1) seeking declaration that the suit property is not a property of public or private trust, is clearly beyond the jurisdiction of the Civil Court. Thus, the prayer (1) made by the plaint is beyond the jurisdiction of the Civil Court.

17. The plaintiff has also alleged in the suit that the suit property, at the relevant time i.e. on 1st July, 1960, was vested with the State Government in accordance with the provisions of The Hyderabad Abolition of Inam and Cash Grants Act, 1954. In other words, according to the plaintiff, the suit property is owned by the State Government and not by the public trust or it is not a public trust property. Needless to say that even such declaration in favour of the State Government is beyond the jurisdiction of the Civil Court. Such grievance also could have been raised in an appropriate proceedings challenging the judgment and order passed by the Assistant Charity Commissioner in Application No.830/1962. In this view of the matter, substantial question No.1 will have to be answered against the plaintiff.

18. The another question, which is formulated in this Second Appeal, is partly declaration that the plaintiff is entitled to hold the suit property and partly perpetual injunction against the defendant No.1 from obstructing the possession of the plaintiff. While considering this prayer, it is apposite to refer to the judgment of the Apex Court in the matter of Church of North India (supra). The Apex Court held that -

"Grant of prayer (c) for perpetual injunction would also give arise to adjudication on the question as to whether the Appellant herein had the legal right to own the properties of the First District Church of Brethern and administer or manager the same although at the relevant time it was not registered trust and although no amendment had been effected in the register and books maintained by the Charity Commissioner in terms of Section 17 and with Sections 21 and 22 of the Act. The plaintiff with a view to obtain an order of injunction furthermore were required to establish that they could file a suit for enforcement of right of the Appellant as a religious trust and such a legal right vests either in the plaintiff or in the Appellant herein indirectly. Such a prayer, related to the possession of the property, comes squarely within the purview of Section 50 of the Act, had such application been filed before the Charity Commissioner he was required to go into the question as to whether the plaintiffs are persons having interest in the trust and whether a consent should be given to them to maintain a suit. Only when, inter alia, such consent is granted, a suit could have been filed in terms of Section 51 of the Act. In the event of refusal to give consent, the persons interested could have preferred an appeal."

19. In this view of the matter, this prayer No.2 sought by the plaintiff also could not have been considered by the Civil Court.

On behalf of the plaintiff/appellant reliance is placed on the Full Bench judgment of this Court in the matter of Keki Pestonji Jamadar (supra). I have read the facts and the ratio laid down. On behalf of the appellant, other judgments of this Court are also referred to as listed below :

(1) Sainath Mandir Trust, Amravati Vs. Vijaya w/o. Vithalrao Mandale and others, reported in 2003(4) Mh.L.J. 187 : [2003(4) ALL MR 1063].

(2) Ramnarayan s/o. Manilal Sahu through LRs. Smt. Kamal wd/o. Ramnarayan Sahu and others Vs. State of Maharashtra and others, reported in 2005(2) Mh.L.J. 95 : [2005(3) ALL MR 397].

Apart from these judgments, from the judgment of the Apex Court in the mater of Church of North India (Supra), it can be noticed that another judgment of the learned Judge of the Bombay High Court holding that the Civil Court has no jurisdiction, in the matter of Mahibubi Abdul Aziz and others Vs. Sayed Abdul Majid and others (2001(2) Mh.L.J. 512 : 2001(3) ALL MR 104), is also referred in paragraph No.99 of the said report.

I have read background facts and ratio laid donw in all these judgments. At the cost of repetition, it is to be noted that in paragraph No.102 of the judgment of the Apex Court in the matter of Church of North India (Supra), it is held by the Apex Court that the principle enunciated in each of the decisions laid down relate to the facts-situation obtaining therein.

20. It is apropos to refer to the judgment, in the matter of Church of North India (supra), on the point of jurisdiction and Scheme of the Act of 1950. Paragraph Nos.86 and 87 are relevant.

"86. The provisions of the Act and the Scheme thereof leave no manner of doubt that the Act is a complete Code in itself. It provides for a complete machinery for a person interested in the trust to put forward his claim before the Charity Commissioner who is competent to go into the question and to prefer appeal if he feels aggrieved by any decision. The bar of jurisdiction created under Section 80 of the Act clearly points out that a third party cannot maintain a suit so as to avoid the rigors of the provisions of the Act. The matter, however, would be different if the property is not a trust property in the eye of law. The civil court's jurisdiction may not be barred as it gives rise to a jurisdiction question. If a property did not validly vest in a trust or if a trust itself is not valid in law, the authorities under the act will have no jurisdiction to determine the said question."

"87. With a view to determine the question as regard exclusion of jurisdiction of civil court in terms of the provisions of the Act, the court has to consider what, in substance, and no merely in form, is the nature of the claim made in the suit and the underlying object in seeking the real relief therein. If for the purpose of grant of an appeal, the court comes to the conclusion that the question is required to be determined or dealt with by an authority under the Act, the jurisdiction of the civil court must be held to have been ousted. The questions which are required to be determined are within the sole and exclusive jurisdiction of the authorities whether simple or complicated. Section 26 of the Act must be read in that context as it specifically refers to those questions wherewith a court of competent jurisdiction can deal with and if the same is not expressly or impliedly barred. Once a decision is arrived at, having regard to the nature of the claim as also the reliefs sought for, that civil court has no jurisdiction, Section 26 per force will have no application whatsoever."

21. In this view of the matter, in my view, the First Appellate Court has justifiably recorded a finding that the Civil Court has no jurisdiction to entertain the suit.

22. The learned counsel for the plaintiff submits that the plaintiff, the author of the trust, was not having power to create a trust of January 23rd, 1964 and this grievance can be entertained by the Civil Court. It is not possible for me to accede to the submission of the learned counsel for the plaintiff.

23. This takes me to the second substantial question of law regarding limitation. Here in this case date of registration of the Trust Application No.830/1962 is January 23rd, 1964. The notice issued by the plaintiff in the Suit Exh.53 is dated 17-1-1979. The First Appellate Court, in paragraph No.12, recorded a finding that the notice, dated 17th January, 1979, cannot be a cause of auction, because the suit is filed earlier i.e. on 13th of September, 1978. The First Appellate Court, therefore, refused to accept the argument or the grounds raised by the plaintiff regarding cause of action. The First Appellate Court further observed that suit is filed after fourteen years and 7 months after the order of the Assistant Charity Commissioner. I have recorded a finding that the Civil Court has no jurisdiction. However, even assuming for the sake of argument that the Civil Court can entertain such a suit filed by the plaintiff, in that eventually, the contention of the plaintiff that cause of action arose on receipt of such notice Exh.53, is of no help to the plaintiff. Advocate for the plaintiff submits that he has received the notice Exh.53 and from the date of receipt of the notice suit is filed within a period of three years. In other words, he is referring to the Article 58 of the Indian Limitation Act. Article 58 of the Limitation Act, 1963, reads thus -

"58. To obtain any other declaration - Three years - When the right to sue first accrues."

24. In the present case, it was the plaintiff who applied to the Charity Commissioner, Aurangabad Region, Aurangabad, in the year 1962. It is an Application No.830/1962. The said application is decided by the learned Assistant Charity Commissioner, Aurangabad, on 23rd January, 1964. Plaintiff was well aware, since he himself was the applicant in Application No.830/1962, that the public trust is registered and the suit property is registered and recorded as property of the said public trust i.e. Mahadeo temple. Notice Exh.53, undisputedly, is subsequent to the date of filing of the suit. To the knowledge of the plaintiff, it can be said that the said contention is false. That cannot be said to be a cause of action for filing of the suit, since suit is filed long time before the service of notice Exh.53 to the plaintiff. Article 58 provides the period of limitation of three years for obtaining any other declaration. This three years period is to be computed from the accrual of the right to sue first. Date of passing of the order in Application No.830/1962 is the date which comes the first instance or it can be said to have accrued in first point of item in filing a suit. On the date of filing of the suit, no other reason is assigned by the plaintiff except notice Exh.53 for filing of such suit. In this fact-situation, the First Appellate Court has justifiably turned down the finding of the trial Court holding that the suit is within limitation. In other words, First Appellate Court has justifiably held that the suit filed by the plaintiff is barred by limitation. The substantial question i.e. ground No.10, therefore, has to be answered against the plaintiff holding that the suit filed by the plaintiff was beyond the period of limitation.

25. In the result, the Second Appeal fails and is dismissed, however, without any costs.

26. Interim relief, if any, granted by this Court earlier stands vacated.

Appeal dismissed.