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PETITIONER: ABDUL KARIM KHAN AND ORS.

       Vs.

RESPONDENT: MUNICIPAL COMMITTEE, RAIPUR

DATE OF JUDGMENT: 08/03/1965

BENCH: GAJENDRAGADKAR, P.B. (CJ) BENCH: GAJENDRAGADKAR, P.B. (CJ) DAYAL, RAGHUBAR RAMASWAMI, V.

CITATION:  1965 AIR 1744            1965 SCR  (3) 300

ACT:    Madhya  Pradesh Public Trusts Act (30 of 1951)--Entry  by Registrar   that  property  belongs  to   Public   trust--if conclusive against real owner.

HEADNOTE:    The  first appellant, who was the Mutawalli of  a  public trust,  filed  a  representative  suit  for  an   injunction restraining   the   respondent  from  committing   acts   of encroachment  on the suit property, on the ground  that  the property was that of the trust and had been so registered by the  Registrar  of Public Trusts, under the  Madhya  Pradesh Public Trusts Act, 1951. The suit was dismissed by the trial court and also on appeal.    In  their  appeal  to the Supreme  Court  the  appellants contended that, since the respondent did not avail itself of the  ,right  to file a suit within the specified  time,  the order  passed by the Registrar must be held to be final  and conclusive against the respondent.     HELD:  The fact that the property in suit was  added  to the list of the properties belonging to the trust, could not affect the respondent’s title to it. [306 A-B]     The  enquiry  which the Act contemplates is  an  enquiry into the question as to whether a trust is public or private and does not take within its sweep questions as to whether a property  belongs  to a private individual and  is  not  the subject matter of any trust at all. The only persons who are required to file their objections in proceedings before  the Registrar  are persons interested in the  public  trust--not persons  who  dispute  the existence of  the  trust  or  who challenge  the allegation that any property belongs  to  the said  trust. Inasmuch as the respondent was not a  party  to the  proceedings and could not have filed any objections  in the  proceedings  the respondent was not bound  to  file  an appeal  under  s. 4(5) of the Act or a suit under  s.  8(1), challenging order of the Registrar. Therefore, the  finality given  to the finding of the Registrar could not be  availed of  by the appellant as against the respondent. [304 G;  305 A-B, D-E]

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JUDGMENT:     CIVIL  APPELLATE JURISDICTION: Civil Appeal No.  871  of 1962.     Appeal  by  special leave from the judgment  and  decree dated  August 13, 1959, of the Madhya Pradesh High Court  in Second Appeal No. 294 of 1959. S.P. Sinha and M. 1. Khowaja, for the appellant. S.T. Desai and A. G. Ratnaparkhi, for the respondent. The Judgment of the Court was delivered by Gajendragadkar.  C.J.  This appeal arises from a suit  filed by  the appellants who are the representatives of  residents of  Nayapara Ward in particular and of the Muslim  community of  Raipur in general, in which they claimed  an  injunction restraining  the respondent, Municipal Committee of  Raipur, from committing acts of encroachment on their rights and the rights of   301 the Muslim community in holding Urs and other ceremonies  on the  plot  in suit. It appears that at Raipur,  there  is  a piece  of  land called "Fazle Karim’s Bada" Khasra  No.  649 measuring  4.62 acres. Inside this Bada, there are three  or four  Municipal  Schools. The office of the  Electric  Power House is also located in one corner of the land. Behind  the School,  there  is a Pakka platform known  as  "Syed  Baba’s Mazar".  Near  the Electric Power House, there is  a  raised earth  platform  on  which there is a flag.   This  flag  is called "Madar Sahib’s Jhanda".  Surrounding this land. there is  a  brick wall which was made by the  respondent  several years  past.  According to the plaint, Urs function is  held every  year  in  front of Syed Baba’s  Mazar  for  the  last several  years.  On  or about the 22nd  October,  1956,  the employees  of the respondent started digging  foundation  at the  places A, B, C and D shown on the map attached  to  the plaint.  These digging operations were commenced  under  the directions   of  the  respondent.  because  the   respondent intended  to construct another school building on the  plot. The  appellants  then served a notice on the  respondent  to desist from carrying on the digging operations on the ground that  the property on which the said operations  were  being carried  out,  was a part of the wakf  property.   When  the respondent did not comply with the requisition contained  in the  said  notice,  the  present  suit  was  filed  by   the appellants  on  October 29, 1956. This suit has  been  flied under O.1 r. 8 of the Code of Civil Procedure. The case of the appellants is that the plot of land in  suit was  old  Kabrasthan  known as "Chuchu’s Takia",  and  is  a permanent inalienable wakf property. On this plot are  tombs of renowned saints like Syed Baba. and Madar Sahib’s Jhanda. On  a part of the plot. every year Urs and  other  religious functions  are  performed.  In  fact,  the  land  has   been registered  under the Madhya Pradesh Public Trusts Act  (No. 30 of 1951) (hereinafter called the Act) as trust  property; as  such, the respondent can claim no right or title to  the said land. That is the basis on which the appellants claimed injunction against the respondent.     The respondent disputed this claim.  It was urged in the written statement filed by the respondent that the land  was never and could never be wakf property. 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  is allowed  to be held with the licence of the respondent.  The plot  originally, belonged to private persons and  had  been acquired   by   the  Government    in    land    acquisition proceedings   in  1910-11. The respondent got the said  land

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from  the  Government  in  1922.  In  1932-33.  the   Deputy Commissioner  fixed rent of the land which is being paid  by the respondent eversince.  On this land, the respondent  has constructed  some schools, and a part of the land  which  is lying  vacant  is allowed to be used by the  people  of  the neighbourhood  for  traffic.  The respondent thus  has  full right to 302 construct  on  its  own plot of  land.   The  representative character  of the appellants was disputed by the  respondent and their right to file the present suit was challenged.     On  these pleadings, several. issues were framed by  the learned trial Judge.  They covered the title of  appellants, the title of the respondent, and the right of the appellants to file the suit.  The issue with which we are concerned  in the  present appeal related to the registration of the  plot in  the register kept under the relevant provisions  of  the Act and its effect. The appellants’ contention was that  the said registration was conclusive against the respondent  and in  favour  of the appellants’ claim.  This  contention  was rejected  by  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 we  are  not concerned in the present appeal.     The matter then went in appeal. and the appellate  Court confirmed  the conclusions recorded by the trial  Court  and dismissed   the  appeal.  The  appellants   challenged   the correctness  of  the said appellate decree by  preferring  a second appeal in the High Court of Madhya Pradesh.  but  the second   appeal  also  failed.  and  that  has  brought  the appellants to this Court by special leave. Thus. it would be noticed  that  the appellants have failed on the  merits  of their claim in all the courts below. and the technical point raised  by them that the registration of the plot under  the relevant  provisions  of the Act concluded the  matter.  has also  been  rejected. It is this last point which  has  been urged before us by Mr. Sinha on behalf of the appellants.     Before  we  deal with this point. however, it  would  be relevant  to mention how the property came to be entered  in the register kept under the relevant provisions of the  Act. The  record shows that the Masjid Nayapara. Raipur had  been entered  in the register as a public trust on June 25.  1954 in Case No. 23XXXiii/7 of 1952-53.  certain properties  were entered  in the said register in respect of this trust.   In 1956.   Abdul  Karim.  Mutawali   Masjid   Naypara    Raipur applied   to   the  SubDivisional Officer.  Raipur  alleging that  the property now in suit also belonged to  the  public trust  and  should be included amongst its  properties.   On this   application, public notice was  issued  calling  upon persons  interested  in the property to show  cause  why  it should  not  be  added to the properties  of  the  wakf.  No objection  was. however. received and on October  23.  1956. the  Sub-Divisional  Officer reported that  the  poperty  be shown  against the trust. The said report was sanctioned  by the Registrar. Public Trusts on April 22. 1957. That is  how the  property  came  to be registered as  belonging  to  the public  trust.  and  it  is on this  entry  that  the  whole argument of the appellants is based.     In considering the validity of the contention raised  by Mr. Sinha before us. it is necessary to examine broadly  the scheme 303 of  the Act and the material provisions on which  Mr.  Sinha relies.      The Act was passed in 1951 to regulate  and  to make  better  provision  for the  administration  of  public

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religious  and  charitable  trusts in the  State  of  Madhya Pradesh.  Section 2(4) of the Act defines a "public  trust", and  s. 2(8) defines a "wakf". ’Working trustee’ is  defined by   s.  2(9).  Section  3(1)  provides  that   the   Deputy Commissioner  shall  be the Registrar of  public  trusts  in respect  of every public trust; and s. 3(2) imposes  on  the Registrar  the obligation to maintain a register  of  public trusts, and such other books and registers and in such  form as   may  be  prescribed.  Section  4(1)  deals   with   the registration  of public trusts and in requires  that  within three  months from the date on which the said section  comes into  force in any area or from the date on which  a  public trust is created, whichever is later, the working trustee of every  public  trust  shall apply to  the  Registrar  having jurisdiction  for  the  registration of  the  public  trust. Section  4(3)  lays down the particulars which  have  to  be stated by the application which is required to be made under s.  4(1).   All  these particulars are in  relation  to  the nature of the trust, its properties,  the mode of succession to     the office of the trustees, and other allied matters. Section  4(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 filed within 30  days  of  the  order. Mr. Sinha  relies  on  a  specific provision contained      in s. 4(5) which says that  subject to  the decision in such appeal. the order of the  Registrar under sub-section (4) shall be final. Section 4(6)  requires the  signing  and  verification of the  application  in  the manner laid down in the code of Civil Procedure for  signing and verifying plaints.      That  takes us to s. 5 which deals with the enquiry  to be held by the Registrar on the application made before  him under s. 4(1). Eight points are set down under s. 5(1) which the  Registrar has to consider. Section 5(2) lays down  that the  Registrar  shall give in the prescribed  manner  public notice of the inquiry proposed to be made under  sub-section (1)  and invite all persons interested in the  public  trust under  inquiry to prefer objections, if any, in  respect  of such  trust.  Under  s. 6, the Registrar  has  to  make  his findings on the point specified by s. 5(1); and under s.  7, the  Registrar causes entries to be made in the Register  in accordance  with his findings. Section 7(2)  naturally  lays 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 the Registrar within six months from the  date  of the publication of the notice under  s.  7(2); such  a suit can be filed by a working trustee or  a  person having  interest in a public trust or any property found  to be trust property. Section 9 permits applications to be made for change in the entries recorded in the register. It  will be  recalled that the application which was made in 1956  by Abdul  Karim  was  under the provisions of s.  9(1).  If  an application is made for change in 304 the  entries  as, far instance, for adding to  the  list  of properties  belonging to the trust, a proceeding has  to  be taken  for making the said change and this is prescribed  by s.  9(2).  Section  9(3)  makes  the  provisions  of  s.   8 applicable to any finding under s. 9 as they would apply  to a  finding  under s. 6. These provisions  are  contained  in Chapter II of the Act. Chapter III deals with the management of  trust property; Ch. IV with the problem of audit; 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

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scheme of the Act and the material provisions which fall  to be considered in the present appeal.     Mr.  Sinha relies on the fact that under s. 4(5) of  the Act, the decision of the Registrar is made final, subject to the  appellate decision, if any; and he also refers  to  the right  of instituting a suit reserved by s. 8. His  argument is  that if any person who claims interest in  the  property which  is alleged to be trust property fails to satisfy  the Registrar about his claim, he can file a suit under s. 8(1). Section  8(1)  allows  a suit to be filed,  subject  to  the conditions  prescribed by it, and the right to file  such  a suit  is  given  to a working trustee, or  a  person  having interest in a public trust or any property found to be trust property.  The  respondent is interested in the property  in suit  which is found to be trust property, and since it  did not  avail  itself of the right to file a  suit  within  the specified  time, the order passed by the Registrar  must  be held  to  be  final and conclusive  against  its  claim.  If finality  does  not attach to such an order even  after  six months have expired 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  has presented his case before us.     We  are not impressed by this argument. In  testing  the validity  of  this  argument,  we  must  bear  in  mind  the important   fact  that  the  Act  is  concerned   with   the registration  of public, religious and charitable trusts  in the  State  of  Madhya Pradesh, and the  enquiry  which  its relevant  provisions  contemplate  is an  enquiry  into  the question  as to whether the trust in question is  public  or private.  The enquiry permitted by the said provisions  does not  take  within  its sweep questions  as  to  whether  the property  belongs  to a private individual and  is  not  the subject  matter  of any trust at all. It cannot  be  ignored that  the Registrar who, no doubt, is given the powers of  a civil  court under s. 28 of the Act, holds a kind of summary enquiry   and   the  points  which  can  fall   within   his jurisdiction are indicated by clauses (i) to (x) of s. 4(3). Therefore,  prima facie. 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 within  the enquiry which the Registrar is authorised to hold under s. 5 of the Act.     Besides, it is significant that the only persons who are required  to file their objections in response to  a  notice issued by the  305 Registrar  on receiving an application made under  s.  4(1), are persons interested in the public trust--not persons  who dispute  the  existence of the trust or  who  challenge  the allegation  that any property belongs to the said trust.  It is  only  persons interested in the public  trust,  such  as beneficiaries  or  others who claim a right  to  manage  the trust, who can file objections, and it is objections of this character proceeding from persons belonging to this  limited class that fall to be considered by the Registrar. It cannot be said that the respondent falls within this class; and so, it  would  be idle to contend that it was the  duty  of  the respondent to have filed objections under s. 3(2).     It  is  true, s. 8(1) permits a suit to be  filed  by  a person  having interest in the public trust or any  preperty found  to  be  trust property. The interest  to  which  this section refers must be read in the light of s. 5(2)to be the interest  of a beneficiary or the interest of a  person  who claims the right to maintain the trust or any other interest

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of  a similar character.  It is not the interest  which   is adverse   to the trust set up by a party who does not  claim any relation with the trust at all. That is why we think the finality on which Mr. Sinha’s argument is based cannot avail him against the respondent inasmuch the respondent was not a party  to  the  proceedings and could  not  have  filed  any objections in the said proceedings.     Then  again, the right to file a suit to which  s.  8(1) refers is given to persons who are aggrieved by any  finding of  the  Registrar.  Having  regard to  the  fact  that  the proceedings  before  the  Registrar are  in  the  nature  of proceedings  before a civil court, it would be illogical  to hold  that  the  respondent  who was  not  a  party  to  the proceedings  can be said to be aggrieved by the findings  of the  Registrar.   The normal judicial concept  of  a  person aggrieved by any order necessarily postulates that the  said person must be a party to the proceedings in which the order was   passed  and  by  which  he  feels  aggrieved.  It   is unnecessary   to   emphasise  that  it  would   be   plainly unreasonable  to assume that though a person is not a  party to the proceedings and cannot participate in them by way  of filing  objections, he would still be bound to file  a  suit within  the period prescribed by s. 8(1) if the property  in which he claims an exclusive title is held by the  Registrar to belong to a public trust.      Similarly,  the right to prefer an appeal  against  the Registrar’s order prescribed by s. 4(5) necessarily  implies that  the person must be a party to the  proceedings  before the Registrar; otherwise how would he know about the  order? Like  s.  8(1),  s. 4(5) also seems to be  confined  in  its operation  to persons who are before the Registrar,  or  who could  have  appeared before the Registrar under  s.   5(2). The  whole  scheme  is  clear,  the  Registrar enquires into the question as to whether a trust is private or public, 306 and  deals  with the points  specifically enumerated  by  s. 4(3).  Therefore, we have no hesitation in holding that  the courts below were right in coming to the conclusion that the fact that the property now in suit was added to the list  of properties   belonging  to  the  wakf,  cannot  affect   the respondent’s  title  to it.  On the merits, all  the  courts below have rejected the appellants’ case and have upheld the pleas raised by the respondent in defence. The result is, the appeal fails and is dismissed with costs. Appeal dismissed. 307