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CASE NO.: Appeal (civil)  5477 of 2004

PETITIONER: Devasahayam (D) By LRS.

RESPONDENT: P. Savithramma & Ors.

DATE OF JUDGMENT: 16/09/2005

BENCH: S.B. Sinha & C.K. Thakker

JUDGMENT: J U D G M E N T

S.B. SINHA, J :

       This appeal is directed against a judgment and order dated 19.1.2004  passed by a Division Bench of the Andhra Pradesh High Court whereby and  whereunder the appeal preferred by the Appellant herein from a judgment  and order dated 3.6.2002 passed by the II Senior Civil Judge, City Civil  Court, Hyderabad in O.S. No. 307 of 1998 was dismissed.

       The basic fact of the matter is not in dispute.  The Appellant herein  was a tenant of the predecessors’ in interest of the Respondent Nos. 1 to 4.   Allegedly, an oral agreement of sale was entered into by and between the  Appellant and the Respondents for a total consideration of Rs. 80,000/-.   Allegedly, for execution of the deed of sale approval of the Ceiling  Authorities was necessary wherefor the draft deed of sale was filed before  the Ceiling Authorities.  The said approval is said to have been granted in  the year 1977.  According to Appellant, the factum of grant of approval of  the said deed of sale was not conveyed and only in the year 1997 he came to  learn thereabout whereafter the said suit for specific performance of the  contract was filed. During the pendency of the suit, the Respondent alienated  the suit property in favour of the Respondent Nos. 6 & 7 herein by reason of  a deed of sale dated 10.3.1998.

       A written statement was filed on 20th July, 1998.  In the said written  statement, however, no counter-claim was filed.  The Appellant herein filed  an application for amendment of plaint inter alia questioning the alienation  by the original defendants in favour of defendant No. 6 and praying for  declaration that the deed of sale dated 10.3.1988 executed by defendant Nos.  2 to 5 in favour of Respondent Nos. 6 and 7 herein is null and void.   

       However, subsequently on or about 6.11.1995 a second written  statement was filed wherein a counter-claim was  made  which is as under:

"i) This defendant submits that the plaintiffs who are the  tenants of the defendants since, denied the tenancy and  the relationship of Land Lord and Tenant and falsely set  up the plea of oral agreement of sale have forfeited   the right to continue in possession, as tenants in the suit  premises and the plaintiffs are liable to be vacated from  the suit premises as persons not having right any more to  be in possession of the suit property.  Hence, the Counter  claim for delivery of possession of the suit property.  The  defendants are also entitled for mean (sic) profits from  the plaintiffs at the rate of Rs. 1500/- from 10th  November, 1992, i.e., for the past three years and also in  future. ii) The cause of action for Counter claim arouse on the

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day plaintiff No. 1 filed suit and the plaintiff denied the  defendant’s title by setting up false agreement of sale.   The Counter claim is therefore within time. iii) These defendants are paying a Court fee of Rs. 2626/-  on the 3/4th Market Value of Rs. 80,000/- framed in the  plaint.  Under Section 24-A of A.P. Court fee and Suit  Valuation Act, which is proper and sufficient another  Court fee of Rs. 2466/- paid of U/s 20 of APCF & S.U.  on the claim of Rs. 54,000/- profit claimed for past 3  years i.e. from 10.11.92 to 9.11.95 which is proper and  sufficient. iv) It is, therefore, prayed that the Counter Claim be  allowed by granting the following relief: (A) The plaintiff be directed to deliver the defendants  vacant and actual possession of the suit property. (B) The defendants be directed to pay to the plaintiffs Rs.  54,000/- as mesne profits. (C) The defendants be directed to pay to the plaintiffs Rs.  1500/- per month as further mesne profits from 10.11.95  to the date of eviction. (D) The defendants be directed to pay to the plaintiffs the  costs of the counter claim."

       The Appellant herein in his replication asserted:

"The Plaintiffs submit that the relief of counter claim for  delivery of possession of the property is not maintainable  before this Hon’ble Court, as the suit premises is  attracted by the provisions of A.P. (L.R.E.) Act as there  was relationship of landlord and tenant prior to  agreement of sale and the rent last paid was at Rs. 300/-  p.m.  Since this Hon’ble Court has no jurisdiction to  entertain the counter claim for delivery of possession, the  claim is liable to be rejected.

       The Plaintiffs further submit that the Defendants  are not entitled for relief of mesne profits at the rate of  Rs. 1500/- per month from 10.11.92 i.e. for the past 3  years and also in future as the Plaintiff No. 1 paid the  entire sale consideration in respect of the Plaint Schedule  Property as stated in the Plaint and are entitled to specific  performance of agreement of sale and the Defendants are  not entitled for any mesne profits as claimed.  Hence, the  claim of the Defendants is liable to be rejected.

       The Plaintiffs deny all other adverse allegations  which are not specifically traversed herein above and  pray that the counter claim of the Defendants be  rejected."

       A separate written statement appears to have been filed by the third  defendant on behalf of defendant Nos. 2,4 and 5 on or about 2.11.1999.  The  third defendant also filed an additional written statement.

       The Trial Court, however, as regard counter-claim did not frame any  specific issues.  The issues framed by the learned Trial Judge are as under:

"1) Whether there is an agreement of sale in between the  parties? 2) Whether any payments were made under the alleged  agreement? 3) Whether the suit is barred by limitation? 4) To what relief?"

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       Despite the fact that no issue was framed, the learned Trial Judge  proceeded to consider the issue as regard the counter-claim of the defendant  under Issue No. 4.  Rejecting the contention made by the counsel for the  plaintiff that the court has no jurisdiction to entertain the counter-claim, the  learned Trial Judge stated that as the Appellant had denied the title of the  landlord, the civil court has jurisdiction to entertain the counter-claim of the  defendants in terms of Order VII, Rule 7 of the Code of Civil Procedure.

       Without considering any evidence which might have been brought on  records by the parties on the said counter-claim of the Respondents herein,  the learned Trial Judge allowed the same only on the premise that the  Appellants have failed to establish its case of oral agreement of sale.           The High Court by reason of the impugned judgment and relying  upon a decision of this Court in R. Kanthimathi and Another Vs. Beatrice  Xavier (Mrs.) [(2000) 9 SCC 339] rejected the claim of the Appellant as  regard decree for specific performance of contract but as regard the  Respondent’s counter-claim, it held:

"That apart, having set up with such a false plea of  agreement and totally in regard to his tenancy, it cannot  be said that the remedy of the defendants is to approach  the authorities under the provisions of Rent Control Act."

       Mr. Anant Vijay Palli, learned counsel appearing on behalf of the  Appellant was not able to persuade us to interfere with the concurrent  findings of fact arrived at by the courts below as regard the Appellant’s  claim on specific performance of an oral agreement to sale. The learned  counsel, however, would contend that as no issue had been framed as regard  the said counter-claim, no decree thereupon could have been passed, as was  purported to have been done by the Civil Court, and in any view of the  matter the Civil Court has no jurisdiction to determine the same.

       Mr. Dipankar Gupta, learned senior counsel appearing on behalf of  the Respondent No. 6 herein, however, would submit that despite the  provisions contained in A.P. Building (Lease, Rent & Eviction) Control Act,  1960, the Civil Court had the requisite jurisdiction to determine the counter- claim of the Respondents in view of the fact that the tenant cannot be  permitted to approbate and reprobate at the same time.  The learned counsel  submitted that the Appellant herein in paragraph 4 of the plaint has claimed  possession in his capacity as a vendee and not as a tenant and, thus, a  different relationship between the parties having come into being, the  relationship of the landlord and tenant did not revive automatically upon his  failure to establish his claim.  Strong reliance in this behalf has been placed  on Sultan and Others Vs. Ganesh and Others [(1988) 1 SCC 664], Arjunlal  Bhatt Mall Gothani and Others Vs. Girish Chandra Dutta and Another  [(1973) 2 SCC 197] and R. Kanthimathi (supra).

       It was urged by the learned counsel that when the plaintiff sets up    title in himself which is inconsistent with his plea of tenancy and if he,  having not succeeded in establishing his former claim, cannot now turn  round and contend that he should be granted the relief to continue to be in  possession of the suit premises as if he is a tenant.  Although two  inconsistent defences are permissible, Mr. Gupta would argue that such  defences should not be mutually destructive and in support thereof strong  reliance has been placed on Abdul Rahim Vs. Md. Md. Azimuddin [AIR  1965 Patna 156] and C. Mohammed Vs. Ananthachari [AIR 1988 Kerala  298].

       Relying on or on the basis of the decisions of this Court in Nagubai  Ammal and others Vs. B. Shama Rao and others [AIR 1956 SC 593] and  R.N. Gosain Vs. Yashpal Dhir [(1992) 4 SCC 683], the learned counsel  would contend that the plaintiff cannot approbate and reprobate at the same  time.

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       Mr. L. Nageshwara Rao, learned senior counsel appearing on behalf  of the Respondent Nos. 2 to 5, would supplement the argument of Mr.  Gupta.  Drawing our attention to the counter-affidavit filed herein in this  appeal he would contend that Shri P. Someswar Rao, father of original  defendant filed an eviction petition in the court of Rent Controller against  the Appellant herein on the ground of wilful default in payment of arrears of  rent wherein the Appellant herein in his written-statement raised a plea of  the agreement for sale claiming a title in himself.

                A.P. Buldings (lease, Rent & Eviction) Control Act, 1960 (the said  Act) was enacted "to consolidate and amend the law relating to the  regulation of leasing of buildings, the control of rent thereof and the  prevention of unreasonable eviction of tenants therefrom in the State of  Andhra Pradesh".  Section 10 of the said Act provides that except one or  more grounds stated therein no tenant can be evicted from a tenanted  premises except by obtaining a decree passed by the Rent Controller.   Section 10 (1) of the said Act reads as under:

"(1) A tenant shall not be evicted whether in execution of  a decree or otherwise except in accordance with the  provisions of this Section or Sections 12 and 13:

       Provided that where the tenant, denies the title of  the landlord or claims right of permanent tenancy, the  Controller shall decide whether the denial or claim is  bona fide and if he records a finding to that effect, the  landlord shall be entitled to sue for eviction of the tenant  in a Civil Court and the Court may pass a decree for  eviction on any of the grounds mentioned in the said  sections, notwithstanding that the Court finds that such  denial does not involve forfeiture of the lease or that the  claim is unfounded."

       Denial of relationship of landlord and tenant is one of the grounds for  eviction of a tenant.  Section 10(2)(vi)  and the proviso appended thereto  read as under:

"(2) A landlord who seeks to evict his tenant shall apply  to the Controller for a direction in that behalf.  If the  Controller, after giving the tenant a reasonable  opportunity of showing cause against the application, is  satisfied \026  ***                     ***                     ***             *** (vi) that the tenant has denied the title of the landlord or  claimed a right of permanent tenancy and that such denial  or claim was not bona fide.           The Controller shall make an order directing the  tenant to put the landlord in possession of the building  and if the Controller is not so satisfied, he shall make an  order rejecting the application"

Paragraph 4 of the plaint which is referred to by the Counsel for the  parties at the hearing is as under:

"The plaintiff No. 1 also paid a sum of Rs. 10000/- as  advance and earnest money on the date of the said oral  agreement and symbolic possession was delivered on the  date of agreement.  Earlier to the date of entering into  agreement of sale, the plaintiff No. 1 was in possession  of the plaint schedule property as tenant and continued  thereafter as a purchaser after entering into an agreement  of sale in part performance of the agreement of sale."

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       The Respondent Nos. 1 to 4 herein, however, in their written  statement contended:

"In reply to para 4 of the plaint these defendants submits  that it is incorrect to say that the plaintiff No. 1 paid Rs.  10000/- on the date of alleged oral agreement.  It is also  incorrect to say that the symbolic possession was  delivered on the date of the alleged oral agreement.  The  plaintiff No. 1 was in possession of Plaint schedule  property as a tenant and his possession is that of tenant  even to this day."

       The pleadings as is well-known must be construed reasonably.  The  contention of the parties in their pleadings must be culled out from reading  the same as a whole.  Different considerations on construction of pleadings  may arise between  pleadings in the mufossil court and pleadings in the  original side of the High Court.

       So read, the plaintiffs in its plaint merely ascribed that he continued to  be in possession of the tenanted premises after the oral agreement of sale  was entered into by and between the parties pursuant to or in furtherance  thereof.  It has not been and could not have been the contention of the  Appellant that he has derived title as a vendee in respect of the premises in  question.  Such a plea, in view of Section 54 of the Transfer of Property Act,  was not available.  He at best could raise a claim of possession of the said  premises in part performance of contract as envisaged under Section 53-A  thereof.

       A suit for eviction under the said Act would lie before a Rent  Controller and not before a Civil Court.  In terms of proviso appended to  Section 10(1) of the said Act before the parties to pursue their remedies in a  civil court a Rent Controller is required to arrive at a finding as regard the  bona fide or otherwise the claim of the tenant.  

       Under the provisions of the Transfer of Property Act, a landlord can  evict his tenant only upon service of proper notice as envisaged under  Section 106 of the Transfer of Property Act.  A lease can be determined by  forfeiture inter alia when the lessee renounces his character as such by  setting up a title in a third person or by claiming title in himself.  But even in  such a case, the lessor must give notice in writing to the lessee of his  intention to determine the lease.  

       Distinction between clause (f) and clause (h) of Section 111 is that in  the former the right of forfeiture is exercised while the tenancy is still  subsisting while in a case falling under clause (h) the lease is determined by  a notice to quit.

       The right of the Respondents to forfeit the tenancy, if any, had also  not been exercised and no notice therefor was served upon the Appellant.

       It may be true that, as was submitted by Mr. Nageshwara Rao, that the  predecessors’ in interest of the Respondents had filed a suit for eviction  before the Rent Controller on the ground of default on the part of the  Appellant in payment of rent as it appears from the statement made by PW-I  that the said suit was dismissed for default.  In this appeal, the Respondents  should not be allowed to raise a contention for the first time that only in  view of such a statement a suit for eviction was not pursued.  Neither there  exists any material in this behalf nor the court below went into the said  question.  The consequences resulting from a suit being dismissed for  default must ensue and it must be held that the question as regard the right of  the Respondents to evict their tenant on one or more of the grounds  enumerated in Section 10 of the Act must be determined by the Rent  Controller in an appropriate proceeding.

       In Sheela and Others Vs. Firm Prahlad Rai Prem Prakash [(2002) 3

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SCC 375] whereupon Mr. Nageshwara Rao placed strong reliance, Lahoti,  J., as the learned Chief Justice then was, while construing the provisions of  clause (c) of sub-section (1) of Section 12 of the M.P. Accommodation  Control Act, 1961 observed:

"13. The law as to tenancy being determined by  forfeiture by denial of the lessor’s title or disclaimer of  the tenancy has been adopted in India from the law of  England where it originated as a principle in consonance  with justice, equity and good conscience. On enactment  of the Transfer of Property Act, 1882, the same was  incorporated into clause (g) of Section 111. So just is the  rule that it has been held applicable even in the areas  where the Transfer of Property Act does not apply. (See:  Raja Mohammad Amir Ahmad Khan v. Municipal Board  of Sitapur.) The principle of determination of tenancy by  forfeiture consequent upon denial of the lessor’s title may  not be applicable where rent control legislation  intervenes and such legislation while extending  protection to tenants from eviction does not recognize  such denial or disclaimer as a ground for termination of  tenancy and eviction of tenant. However, in various rent  control legislations such a ground is recognized and  incorporated as a ground for eviction of tenant either  expressly or impliedly by bringing it within the net of an  act injurious to the interest of the landlord on account of  its mischievous content to prejudice adversely and  substantially the interest of the landlord."

       It was further observed:

"17. In our opinion, denial of landlord’s title or  disclaimer of tenancy by tenant is an act which is likely  to affect adversely and substantially the interest of the  landlord and hence is a ground for eviction of tenant  within the meaning of clause (c) of sub-section (1) of  Section 12 of the M.P. Accommodation Control Act,  1961. To amount to such denial or disclaimer, as would  entail forfeiture of tenancy rights and incur the liability to  be evicted, the tenant should have renounced his  character as tenant and in clear and unequivocal terms set  up title of the landlord in himself or in a third party. A  tenant bona fide calling upon the landlord to prove his  ownership or putting the landlord to proof of his title so  as to protect himself (i.e. the tenant) or to earn a  protection made available to him by the rent control law  but without disowning his character of possession over  the tenancy premises as tenant cannot be said to have  denied the title of landlord or disclaimed the tenancy.  Such an act of the tenant does not attract applicability of  Section 12(1)(c) abovesaid. It is the intention of the  tenant, as culled out from the nature of the plea raised by  him, which is determinative of its vulnerability."

       There cannot be any doubt whatsoever that the Respondents could  have maintained a proceeding for eviction before the Rent Controller on the  said ground.  Once such a proceeding could be initiated under the said Act,  the jurisdiction of the civil court would be held to have been ousted.

       It is true as has been submitted by Mr. Gupta that a party to a lis canot  raise pleas which are mutually destructive but ordinarily inconsistent  defences can be raised.   The Respondent No.2 to 5 were Plaintiffs in respect  of their counter-claim and, thus, it was for them to prove their case by

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pleading  such foundational facts as were required to obtain a decree in their  favour.  The Respondents, as noticed hereinbefore, in their written statement  categorically stated that the plaintiff had been in possession of the land as a  tenant and his possession is that of tenant even to this day and, thus,  according to the defendant the Appellant continued to be a tenant.  As in the  counter-claim such a plea had been taken, the Respondents on their own  showing raised inconsistent pleas which are said mutually destructive.

       The Civil Court’s jurisdiction to entertain a suit for eviction on the  ground of denial of relationship of landlord and tenant could have been  invoked only strictly in terms of the provisions of the said Act wherefor  the  requirement of law, as contained in the proviso appended to Section 10(1) of  the Act was to be complied with.

       Moreover, in the counter-claim although the Respondents have  claimed mesne profits at the rate of Rs. 1500 per month from 10.11.1992 till  9.11.1995, i.e., for a period of only 3 years only and also in future, the Trial  Judge did not discuss the evidence which might have been adduced by the  parties in that behalf.  The Division Bench of the High Court, as noticed  hereinbefore, on the other hand, examined the question on the premise that  the Appellants were in arrears of rent for the period from January, 1977 to  June, 1996 and, thus, became a defaulter.    The contention of the Appellant  that the Civil Court has no jurisdiction was repelled by the High Court, as  noticed hereinbefore without going into the aforementioned aspect of the  matter.

       We have noticed hereinbefore that the Respondents in the counter- claim did not advance a plea for forfeiture of tenancy nor did they raise any  contention that the landlord has issued a notice conveying his intention to  determine the lease.

       The doctrine of approbate and reprobate is a species of estoppel.  However, there cannot be any estoppel against a statute.  [See MD, Army  Welfare Housing Organisation Vs. Sumangal Services (P) Ltd. Vs.  Sumangal Services (P) Ltd., (2004) 9 SCC 619]           In Nagubai Ammal (supra), whereupon strong reliance has been  placed by Mr. Gupta, this Court observed that the maxim that a person  cannot approbate and reprobate is only one application of the doctrine of  election and its operation must be confined to the reliefs claimed in respect  of the same transaction and to the persons who are parties thereto.  In that  case a plea that an earlier proceeding was not a collusive one was allowed to  be raised holding that the said principle has no application inter alia on the  ground that the plaintiff therein did not obtain any advantage against the  appellants by pleading therein that the earlier proceedings were collusive nor  did they acting on those pleadings acquire rights to the suit properties.  The  said decision has no application to the fact of the present case.

Evidence of the Appellant, in this behalf, to  which our attention was  drawn reads as under:

"As a tenant, I we used to pay Rs. 300/- per month till the  date of purchase of the property.  The 1st defendant filed  a Rent case No. 617 of 1988 on the file of IV Addl. Rent  Controller, Hyderabad after filing the present suit.  The  said R.C was dismissed for default on 16.6.1992.  The 1st  defendant did not get it restored the said Rent Case nor  they have filed any case for eviction."

       The Respondents herein on the aforementioned premise cannot be  permitted to raise a plea that the suit for eviction was not pursued before the  Rent Controller, Hyderabad only because the Appellant had raised the plea  that the Rent Controller had no jurisdiction in the matter.  The matter might  have been otherwise if in the said proceedings a finding was arrived at that

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the court has no jurisdiction upon acceptance of the said plea by the  Appellants herein.

       In R.N. Gosain (supra), different types of undertakings were given by  the tenant that he would vacate the premise which having been acted upon, it  was held that having done so, the petitioner cannot be permitted to invoke  the jurisdiction of this Court under Article 136 of the Constitution of India.   The said decision has no application to the fact of the present case.

       In Arjunlal Bhatt Mall Gothani (supra), admittedly there was an  agreement to sell the suit property to the tenant wherein it was provided that  the payment would be made in equal instalments and on failure of do so, the  sale agreement would be cancelled.  In the aforementioned situation, this  Court held that when the agreement was entered into, the old relationship of  landlord and tenant came to an end and the rights and liabilities of the parties  were required to be worked out on the basis of that agreement.   

       Here, in this case the existence of the agreement itself was in question.   As noticed hereinbefore, the specific case of the Respondents themselves  was that the Appellants continued to be a tenant and in that view of the  matter, the said decision has no application.

       In R. Kanthimathi (supra), whereupon reliance has been placed by the  High Court, this Court held that where a new jural relationship was created  between the parties upon non-establishment thereof, parties cannot fall back  upon the old one.  Therein, the seller \026 landlord accepted the amount under  the agreement and such acceptance was preceded by agreement of sale  and  in the aforesaid factual backdrop it was held that the relationship of landlord  and tenant between the parties changed.  Such is not the case here.  The said  decision, therefore, has no application to the fact of the present case.

       In Sultan (supra), the suit was filed based on the possession of title  wherein the tenant \026 Appellant denied the relationship of landlord and tenant  claiming  to be the owner by adverse possession.  Only in that situation it  was held that the tenant for the first time before this Court could not raise a  plea that his tenancy was protected under the Rajasthan Rent Restriction  Act.

       In Rekha Mukherjee Vs. Ashish Kumar Das and Another [(2004) 1  SCC 483], this Court held:

"16. An undertaking of this nature furthermore must be  construed in favour of the person giving such  undertaking. It should not be stretched too far. A party  giving an undertaking is bound thereby but by reason  thereof, the same cannot be given a meaning whereby the  scope and extent thereof is enlarged."

It is now well-settled that a decree passed by a court having no  jurisdiction is a nullity.  The Civil Court had no jurisdiction to pass a decree  for eviction only on the basis that the tenant has denied their title.  The  matter might have been different if the civil court has otherwise jurisdiction  to entertain a suit.  The legislature has created new rights and liabilities for  both the landlord and tenant in terms of the provisions of the said Act  and  provided a forum therefor.  The jurisdiction of the civil court having been   barred except in a situation where the proviso appended to sub-section (1) of  Section 10 would be attracted, the Civil Court has no jurisdiction to entertain  a suit for eviction on a ground envisaged under Section 10(2)(vi) of the A.P.  Building (Lease, Rent & Eviction) Control Act.  The Civil Court, thus, had  no jurisdiction to entertain the counter-claim.

       In Kiran Singh and others Vs. Chaman Paswan and others [AIR 1954  SC 340], it was stated:

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"\005It is a fundamental principle well-established that a  decree passed by a court without jurisdiction is a nullity,  and that its invalidity could be set up whenever and  wherever it is sought to be enforced or relied upon, even  at the stage of execution and even in collateral  proceedings. A defect of jurisdiction, whether it is  pecuniary or territorial, or whether it is in respect of the  subject-matter of the action, strikes at the very authority  of the court to pass any decree, and such a defect cannot  be cured even by consent of parties...."

       In Bihar State Mineral Development Corporation and Another Vs.  Encon Builders (I) (P) Ltd. [(2003) 7 SCC 1], this Court held:

"31\005An order which lacks inherent jurisdiction  would be a nullity and, thus, the procedural law of  waiver or estoppel would have no application in  such a situation."

       In Dwarka Prasad Agarwal Vs. B.D. Agarwal [(2003) 6 SCC 230], it  was opined :

"37. It is now well settled that an order passed by a court  without jurisdiction is a nullity. Any order passed or  action taken pursuant thereto or in furtherance thereof  would also be nullities. In the instant case, as the High  Court did not have any jurisdiction to record the  compromise for the reasons stated hereinbefore and in  particular as no writ was required to be issued having  regard to the fact that public law remedy could not have  been resorted to, the impugned orders must be held to be  illegal and without jurisdiction and are liable to be set  aside. All orders and actions taken pursuant to or in  furtherance thereof must also be declared wholly illegal  and without jurisdiction and consequently are liable to be  set aside. They are declared as such."

       [See also Ashok Leyland Ltd. Vs. State of T.N. and Another, (2004) 3  SCC 1 and MD, Army Welfare Housing Organisation (supra)].

       In Church of North of India Vs. Lavajibhai Ratanjibhai & Ors. [JT  2005 (5) SC 202], this Court observed:

"78. 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  rigours 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 jurisdictional  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."

       The impugned judgment to the aforementioned extent, therefore,

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cannot be sustained which is set aside accordingly.  The appeal is allowed in  part so far as it relates to the counter-claim made by the Respondents herein.   However, that part of the judgment whereby and whereunder the Appellant’s  suit for specific performance of contract has been dismissed is upheld.  No  costs.