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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CIVIL APPELLATE JURISDICTION   

CIVIL  APPEAL NO.7789 OF 2011    Vijay Pullarwar & Ors.         …..Appellant(s)          

:Versus:    

Shri Hanuman Deostan, a Public Trust  through its Trustees         ....Respondent(s)  

J U D G M E N T  

A.M. Khanwilkar, J.  

1. This appeal is filed by the original defendants against the  

judgment and order of the High Court of Judicature at  

Bombay, Nagpur Bench in Second Appeal No.364 of 1990  

decided on 24th October, 2008, whereby the High Court, in the  

second appeal, restored the decree of possession of the suit  

property passed by the trial court against the appellants, by  

setting aside the judgment and decree passed by the District

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Court, Nagpur in Regular Civil Appeal No.564 of 1983 dated  

21st January, 1989.  

 2. The respondent No.1, Shri Hanuman Deosthan, is a  

public trust duly registered under the provisions of the  

Bombay Public Trusts Act, 1950 (presently known as  

Maharashtra Public Trusts Act, 1950) (for short “1950 Act”).  

The respondents filed Special Civil Suit No.1127 of 1978 in the  

Civil Court, Senior Division, Nagpur, for possession on the  

basis of title. It was asserted that one Bansilal S/o Gangadin  

Perdeshi Teli, R/o Circle No.3 of Nagpur was the disciple of a  

Hindu saint by the name of Haridas Baba Vishv. The said  

saint took Samadhi about 70 years back before the institution  

of the suit. He had a “Math” situated in Circle No.3 in house  

bearing No.878, where his (Haridas Baba) Padukas came to be  

installed. It is stated that the said Bansilal was the Chief  

Wahiwatdar of the said Math and was looking after the pujas  

and utsavas performed in the Math. Before his death, which  

occurred in 1944, he had asked his wife, Yashodabai, to look  

after and manage the Math and conduct puja and utsavas

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from time to time in his absence and keep the Math property  

in good condition from the income of the Math. He had also  

told his wife Yashodabai that after his death, she may appoint  

a panch committee in the event she was not in a position to  

look after the affairs of the Math herself. After 1946,  

Yashodabai executed a document and appointed a panch  

committee for the proper management of the Math whilst she  

remained one of the trustees. That document was registered  

on 23rd May, 1946 (Exh.41). She had nominated five persons  

as panchas in the panch committee namely, Shri Badal S/o  

Giridharilal, Mohanlal Hanuman, Ramjiwan Kaluram,  

Nandideep Bhangavandin and Onkar Gandelal Pardeshi.  

Amongst them, Badal was to remain as sarpanch. After his  

demise, one Chotelal Bhikaji Pardeshi assumed the office of  

Sarpanch.   

 3. It was further stated that except Ramjiwan Kaluram, all  

the trustees/panchas had expired by the time the suit was  

filed. Further, Chotelal Bhikaji Pardeshi, after taking over as  

sarpanch, made an application on 31st August, 1953 (Ex.63) to

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the appropriate authority for registration as a public trust  

under the provisions of the Madhya Pradesh Public Trust Act.  

In that application, the description of the property of the trust  

was given as per the schedule to the plaint, which property  

was amongst other properties registered as the property of the  

public trust. After the provisions of the Bombay Public Trust  

Act, 1950 (Exh.64 dated 13th September, 1961) became  

applicable to the Vidarbha region of the State of Maharashtra,  

Chotelal got the trust registered under the 1950 Act, bearing  

P.T.R. No.A-50(N).   

4. It is then stated that after the death of Chotelal Bhikaji  

Pardeshi, a change report was submitted to the local office of  

the public trust at Nagpur which came to be rejected as no  

proper succession was documented. Resultantly, the local  

persons having interest in the affairs of the Math preferred an  

application for framing of a scheme and appointment of  

trustees, being application No.71 of 1971. The Deputy Charity  

Commissioner, in exercise of powers under Section 50-A of the  

1950 Act framed a scheme and appointed four persons as

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trustees of Shri Hanuman Deosthan, namely, Bhayyalal  

Giridharilal, Kashiram Fakiraji Potbhare, Laxman Zingaraji  

Sapate, Navi Shukravari and Narayan Tanbaji Kurkute vide  

order dated 4th April, 1975 (Exh.46). In short, the respondent  

asserted that the suit property occupied by the predecessor of  

the appellants, namely Wasudeo Pullarwar, was the property  

of the presiding deity Shri Hanuman Deosthan and was  

managed by the trustees in whom it vested for management.  

The occupant, Vasant Pullarwar, had no right, title or interest  

in the said house.   

5. It is then stated that a notice was issued to defendant  

No.2/appellant No.1 (son of defendant No.1, the said Wasudeo  

Pullarwar), dated 4th November, 1977, calling upon him to pay  

the rent for the last three years ending October 1977 @  

Rs.110/- per month, which rent was recovered by the previous  

trustees from the occupants of the suit house. Appellant No.1  

sent a reply on 14th November, 1977, disputing that he was a  

tenant or that he was liable to pay the rent to the respondent  

trust. He stated that he was living with his father who was

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paying the taxes of the suit house. It appears that the  

plaintiffs/respondents then caused to send another notice to  

defendant No.1 Wasudeo Pullarwar dated 12th December,  

1977, making a similar demand of rent from him, to which  

even he denied his liability to pay and also denied the title of  

the plaintiffs/respondents in respect of the suit house  

occupied by him. In this backdrop, the respondents filed a suit  

on 17th October, 1978 for possession of the suit house from  

the defendants/appellants and for recovery of charges for  

occupation of the suit house during the relevant period. The  

suit for possession is thus based on title.   

 6. The appellants contested the suit by filing their written  

statement asserting that the plaintiffs/respondents have no  

locus to institute the suit; and the suit was not maintainable  

due to absence of permission of the Charity Commissioner for  

filing suit for possession of immoveable property allegedly  

belonging to a public trust. It was denied that Bansilal was the  

Wahiwatdar and was looking after the pujas and utsavas  

performed in the Math. It was then contended that the

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document allegedly executed by Smt. Yashodabai on 23rd May,  

1946 (Exh.41) was a sham and bogus document; and that one  

of the panchas - Ramjiwan Kaluram, was still alive, for which  

reason Chotelal could not claim to be an elected or nominated  

Sarpanch. Pertinently, it has been plainly stated in the written  

statement that the suit house occupied by the defendants was  

not the property shown at the time of registration of Shri  

Hanuman Deosthan, a public trust, and also, the same was  

not registered as the property of the said trust. The said trust  

was registered as a public trust with only two properties  

mentioned in schedule I thereof. One of the house properties  

in Circle No.3 was House No.55, which has had no causal  

connection with the suit house occupied by the  

defendants/appellants, bearing House No.878.   

 7. It is thus denied that the suit house is the property of the  

presiding deity of Shri Hanuman Deosthan. It is plainly  

asserted by the defendants/appellants that the suit house has  

been continuously and uninterruptedly occupied by them for  

over 30 years and the defendant No.1 was looking after and

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managing the same, including carrying out repairs and  

renovation, performing pujas and utasavas in the suit house  

as Wahiwatdar of the property and paying municipal taxes. It  

is the case of the appellants that the suit house was the  

property of a private trust and it originally belonged to saint  

Haridas Baba. Defendant No.1 was in possession of and had  

been the occupant of the property for over 30 years before the  

institution of the suit, as the Wahiwatdar. The appellants  

asserted that the respondent Trust was not the owner of the  

suit house and it had no causal connection therewith and in  

any case, could not oust the appellants/defendants from the  

suit house under the garb of a scheme framed on 4th April,  

1975 by the Deputy Commissioner (Exh.46). Accordingly, the  

appellants prayed that the suit ought to be dismissed with  

costs.   

 8. We may usefully reproduce paragraph 11 of the written  

statement which succinctly unveil the case of the appellants  

about their right to occupy the “suit house” (i.e. H.No.878 in  

Circle No.3) and to reject the claim of the

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plaintiffs/respondents concerning the suit house or having  

any causal connection therewith leave apart having acquired  

any title in terms of the scheme framed for the public trust.   

 9. We deem it necessary to reproduce the whole of  

paragraph 11 of the written statement. For, the High Court  

has decided the matters in issue against the  

defendants/appellants only by referring to sub-paras (b), (c)  

and (d) thereof, as reproduced in paragraph 9 of the impugned  

judgment. Paragraph 11 reads thus:   

“11. Paragraph  

(b) Haridas was a great saint of his times. He died about 55  years ago. He took Samadhi. The suit house (Kuti) belonged  

to Haridas which was not a Math, Padukas of Haridas were  not installed by Bansilal.  

(c) The suit house was bearing House No.143 and then it was  changed as House No.492 and again this was changed as  

House No.104 in Cir. No.3, Nagpur. Owner of the suit house  was Haridas Bairagi, the saint.   

(d)  In this suit house Padukas of Haridas are installed. The  plaintiff‟s allegation that Bansilal was the Chief Wahiwatdar  are denied. The puja and uttaav of the Padukas of Haridas  

used to be done by some disciples.  

(e) It is emphatically denied that the suit house was or is a  Math. It is denied that Bansilal, yashodabai, Chhotelal,  alleged Sarpanch or the alleged Panch names in the alleged  

Deed dated 3.5.1946 or the plaintiffs 1 to 5 were or are  trustees. These above persons had or have no connection

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with the suit house or Padukas.  The alleged Deed, if any,  dated 3.5.1946 is null, void, illegal and invalid.   

(f)  The suit house in circle No.3 at Nagpur and after it  touching to it, is a public tar-road passing north-south and  

its breadth is about 50 feet east-west, from the suit house.  There are many houses to the north of the suit house upto  

Fuwara Chowk, From Chowk, another tar-road which is in  east-west direction passes to the west and after about 500  feet distance in separate locality of Cir. No.2 is a Hanuman  

Temple which has no connection to the suit house in Cir.  No.3 Nagpur. Both are different localities.  

(g)  It is denied that the defendants occupied the suit house  about 12 years back as tenants from from former trustees or  

paid rent, as alleged. It is denied that the defendant occupied  the suit house with any alleged permission of any alleged  former trustee on rent of Rs.110/- per month.  The  

defendants are occupying the suit house as of right and are  in continuous possession for more than 30 years as stated  

earlier openly, exclusively, peacefully peaceably, without  interruption or disturbance from any one or from any alleged  trustees and none of them have been in possession during  

such period.  The defendant No.1 is about 83 years old.  Defendants are „Pullarwar‟. The suit house is not property of  the plaintiff nor a public Trust property as is alleged. All the  

alleged Public Trust proceedings of whatever nature were  without jurisdiction, null and void, under which the  

plaintiffs are trying to lay a claim to the suit house. There  was no house No.55 alleged to the suit house; nor this was  changed as House No.878. the plaintiffs‟ alleged claim for the  

suit house does not stand in fact or law as contended. In  none of the alleged proceedings the defendants were made  

parties, nor noticed.”  

 In view of the rival pleadings, the Trial Court framed in all 11  

issues, which read thus:      

“1)  Do the plaintiffs prove the title of plaintiff No.1 to the  suit house?    

2)   Do they prove that the deft. No.2 was occupying the  same as a tenant?    

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3)  Are the plffs. entitled to the occupation charges at the  rate of Rs.110/-p.m.?     

4)  Whether the Charity Commissioner has declared that  the suit house is trust property?    

5)  Does the deft. No.1 prove that he is occupying the suit  house for more than 30 years and perfect his title by  adverse Possession?   

6)  Do the defts. Prove that the house belongs to  Mahadeo Domaji Kuthe?   

7)  Are the plffs. entitled to the possession?   

8)  What order and decree?   Additional Issues:  

9)   Whether the house in suit was a Math?   10)  Whether the document dated 3.5.46 is         null and void   

11)  Whether the proceedings under the Bombay Public  trust Act are without jurisdiction?”  

 10.   Both sides produced documentary as well as oral  

evidence in support of their respective stands, which was duly  

considered by the Trial Court vide judgment and order dated  

16th November, 1983. The Trial Court accepted the claim of the  

plaintiffs/respondents that the “suit house” (i.e. H.No.878)  

was the property of the public trust, namely, Shri Hanuman  

Deosthan and the management of the property vested in the  

said trust. Further, the defendants/appellants had no right to  

occupy the suit house despite the Trial Court having found  

that they were occupying the same for over 30 years before the  

institution of the suit. On this finding, the Trial Court partly

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decreed the suit by directing the defendants/appellants to  

hand over vacant possession of the suit house to the  

plaintiffs/respondents, while rejecting their claim for  

occupation charges. The operative order passed by the Trial  

Court reads thus:   

“ORDER  

 The Plaintiff‟s suit is decreed partly with proportionate costs.  

The defendants shall deliver vacant possession of the suit  premises to the plaintiff.  The Plaintiffs claim for occupation charges is dismissed.  

An inquiry for future mesne profits under order 20, rule 12  Civil Procedure Code shall be carried separately.  

Decree be drawn accordingly in terms of the above order.”  

11. The appellants being aggrieved, filed Regular Civil Appeal  

No.564 of 1983 before the District Court at Nagpur. The  

District Court, after re-appreciating the oral and documentary  

evidence, was pleased to reverse the finding of facts recorded  

by the Trial Court and instead, concluded that the “suit  

house” (i.e. H.No.878) was not the registered property of Shri  

Hanuman Deosthan, a public trust duly registered under the  

1950 Act.   

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12. The First Appellate Court considered the efficacy of the  

oral evidence adduced by the plaintiffs/respondents to  

establish its title in the suit house as also the documentary  

evidence. As regards the oral evidence, it found that the same  

was hopelessly poor and of persons who had no knowledge as  

to how Shri Hanuman Deosthan trust was constituted.  

Similarly, these persons had no knowledge whatsoever about  

saint Haridas Baba whose Padukas had been installed in the  

suit house. The person who could have spoken about those  

matters, namely Ramjiwan Kaluram, though available at the  

relevant time, was not examined as a witness, for reasons best  

known to the plaintiffs/respondents. While dissecting the  

documentary evidence relied upon by the parties in support of  

their claim, the appellate court in paragraphs 10 to 12  

observed thus:   

“10. Even if for the sake of argument, Exh.41 is  

admitted in evidence and presumed that such a  document was executed by Yashodabai, this document  

does not support the Plaintiffs. I will point out the help  of other documents to show that this particular  document Exh.41 pertains to the suit property but this  

suit property was never treated as property of the  Plaintiff Trust since 1953 till this litigation started.    

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11.Exh.63 is the certified copy of the application, dated 31st  August, 1953 filed by Chhotelal before the Registrar of the  

Public Trusts for registration as per order below Exh.42. In  this application Chhotelal had shown two temple and a  

house No.374 and a house No.369 of Circle No.2 and one  house No.55 of Circle No.3 as the property of the said trust  and this property was recorded in the register of the property  

of the Public Trust maintained under the M.P. Public Trust  Act. Exh.64 is application dated 13th September, 1961 filed  by Chhotelal for change report. In this also the same  

property has been shown as property of the said trust. After  death of Chhotelal an application was made to the Deputy  

Charity Commissioner for framing a scheme for the  management of the trust. After holding enquiry the learned  Deputy Charity Commissioner passed an order, dated 4th  

April, 1975 framing a scheme Exh.46 is a certified copy of  that order. Annexure A to this order shows the property of  

the trust in the register of the Deputy Charity Commissioner.  It means the two houses in Circle No.2 and a house No.55 of  Circle No.3 were the only properties of the trust even in 1975  

when the scheme for management of the trust was framed  and when the present trustees were appointed.     

12. The Defendants have throughout maintained that the  plaintiff Trust has nothing to do with a suit house bearing  

Municipal No.152 situated in Circle No.3. In support of this,  they have produced documents Exhs.56, 57 and 58 which  are the certified copies of the relevant entries in the  

assessment register of the Municipal Corporation. I am told  that the document Exh.56 was in more than one page but in  the original record there appears only one page of the  

Assessment Register and it is incomplete. Therefore, today  the Defendants have produced another certified copy of the  

same record and it is Exh.20. This record goes back to 1910- 11. It appears that originally the house of Haridas Bairagi  was given Municipal No.443. It was situated in Circle No.3 In  

1914-15 house number was changed to 492. In 1922-23 it  was given house No.104. In 1947 to 1950 its house number  

was 878. In 1957-58 it was house No.598 and it continued  to be house No.598 till it was changed to 521 in 1973-74  and it continued to be house No.152 till the institution of the  

present suit. From this record it would be clear that during  1947 to 1950 its house number was 878. Exh.41 the  document purporting to have been executed by Yashodabai  

also shows that the document was executed pertaining the  house No.878 belonging to Haridas Baba. As per this record,

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number of this house continued to be 878 till 1957-58 when  the number was changed to 598, while in 1953 and again in  

1961. Chhotelal had shown house No.55 of Circle No.3 as a  property of Hanuman Deosthan. In this suit we are not  

concerned with the other properties of Hanuman Deosthan  situated in Circle No.2 Exh.57 and 58 is the record  pertaining house No.55 of Circle No.3. this record shows that  

house No.55 of Circle No.3 was the property of temple of  Radhakishna and Ganpati and on behalf of that Temple one  Ramlal Munnalal Halwai was shown to be proprietor. This  

record is available from 1947 onwards. This particular  property bears house No.55 from 1947 till 1961-62. From  

this it is clear that the house No.55 of Circle No.3 is  totally different from the suit house which was the  property of Haridas Bairagi. It is fairly conceded before  

me by Mr. Ghatpnde that temple of Radhakrishna and  Ganpati may be different institution than the property of  

Haridas Baba. In 1952 when for the first time Hanuman  Deosthan was registered as trust on application of  Chhotelal, house No.55 was different from the suit house  

which was bearing No.878 at that time. It is conceded  that there is no documentary evidence to establish that  the suit house was the property of the Plaintiff Trust.”  

(emphasis supplied)  

13. The aforesaid view taken by the First Appellate Court  

and, in particular, the findings of fact recorded on material  

issues came to be reversed by the High Court in the second  

appeal, filed by the respondents. Initially, the said Second  

Appeal No.364 of 1990, was allowed by the High Court of  

Judicature at Bombay at Nagpur, without framing any  

substantial question of law, vide judgment and order dated  

29th March, 2004. That judgment was set aside by this Court  

on 17th December, 2004 in SLP (C) No.10181/2004,   at   the   

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instance of the defendants/appellants. The parties were  

relegated to the High Court for fresh consideration of the  

second appeal. The learned Single Judge of the High Court  

hearing the remanded appeal adverted to two substantial  

questions of law as formulated in paragraph 7 of the  

impugned judgment, which read as follows:   

 "1. Whether the findings recorded by the authorities  

under the Bombay Public Trusts Act about the existence  of the trust and the trust property were final and  conclusive and/or whether the appellate Court had  

justification to hold that the suit property did not belong  to the trust?  

 2. Whether the admission of the defendants that the suit  property was originally owned by Haridad Baba and that  

they had entered in possession thereof in the capacity of  caretaker of the suit property were binding on the  

defendants so as to establish that the property in  question was part of the property originally owned by  Haridas Baba with respect to which the public trust was  

created?”  

14. By the impugned judgment and order dated 24th October,  

2008, the High Court allowed the second appeal preferred by  

the plaintiffs/respondents and restored the decree of  

possession passed by the Trial Court. The High Court first  

analysed the pleadings and noted that the  

defendants/appellants in no uncertain terms admitted that

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saint Haridas Baba is the owner of the suit house and that his  

Padukas were installed in the suit house and were worshiped  

by his disciples. It then found that it was common ground that  

Haridas Baba was the original owner of the suit house and his  

disciples were taking care of the Math after his death. The  

High Court further noted that Bansilal never claimed to be the  

owner of the suit house but only a trustee, who directed Smt.  

Yashodabai to appoint a panch committee to look after the  

affairs of the Math if need be. The panch committee appointed  

by Smt. Yashodabai was nothing but a board of trustees, as  

was evident from the document creating the panch committee  

dated 23rd May, 1946 (Exh.41).  

 15. The High Court then noted that the defendants‟ witness  

DW-1 Vijay in his evidence admitted that the ownership of the  

suit house was of Haridas Baba and that the  

defendants/appellants, along with other family members, were  

living therein as disciples of Haridas Baba and did not set up  

title in themselves at all. It appears that Haridas Baba, who  

was the owner of the suit house, dedicated the property and

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created a private trust, which fact has been admitted by the  

defendants/appellants in the written statement. On that basis,  

the High Court went on to conclude that the  

defendants/appellants admitted that the suit house was a  

trust property and therefore, it must be assumed to have been  

dedicated by Haridas Baba. After having said this, the High  

Court then went on to examine the question as to whether the  

suit house was a property belonging to Shri Hanuman  

Deosthan, a public trust. While considering this issue, the  

High Court took note of the fact that the registered property of  

the Hanuman Deosthan public trust did not include the  

description of the suit house namely House No.878 in Circle  

No.3. The suit house belonging to the public trust was  

registered as House No.55 in Circle No.3. The High Court  

“assumed” this to be a case of mis-description of the trust  

property in the register of the public trust. Accordingly, the  

finding of fact recorded by the First Appellate Court on  

material issues came to be reversed by the High Court on the  

following reasoning:  

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“13. We have already seen that defendants do not deny the  description of the suit property. They do not say that they  

are in possession of any other property than the suit  property. They admit that suit property was owned by  

Haridas. I have already quoted the evidence of D.W.1 Vijay in  verbatim in which he admits that the assessment list Exh.56  is in respect of the suit house. Exh.56 shows that house was  

recorded in the name of Haridas. In examination-in-chief  Vijay admits that the house number of the suit property is  492. Defendant No.1 had made an application to the  

Municipal Council vide Exh.75. He raised an objection to  recording the name of Hanuman Deosthan as owner in the  

Municipal records. He claimed that he was the Wahiwatdar  and was paying taxes and also brought to the notice of the  Municipal Council that this house is not entered in the  

register of public trust. He also alleges that name of the trust  is changed from Haridas to Hanuman Deosthan and that the  

old name be retained. This clearly goes to show that  defendants in fact knew that the suit house belongs to  Hanuman Deosthan Trust. It is registered in the Municipal  

Record as such and he wanted that name of the Hanuman  Deosthan be removed and that he was ready to pay the  taxes. All this evidence clearly goes to show that the  

defendants know that the suit property is entered in the  name of plaintiff trust and they are claiming possession of  

that property alone. With this document there is no manner  of doubt that the suit property is owned by the plaintiff  public trust. Defendants admission must bind them. The  

learned Judge of the first appellate Court did not consider  the evidence in proper perspective. He erred in negativing the  claim of plaintiff because the correct description of the suit  

property is not given in the trust register. He should have  independently considered if the suit property is owned by  

plaintiffs.”  

16. The High Court then negatived the preliminary objection  

that the entire appeal had abated as the legal representatives  

of legal representative Nos. 1 and 2 of the deceased defendant  

No.1 were not brought on record. The High Court took the view

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that since the stand of the defendant No.1 was that he was  

occupying the suit house only as Wahiwatdar, his rights as  

Wahiwatdar ended upon his death. For, the right of  

Wahiwatdar could not be claimed as hereditary. The High  

Court thus concluded that the appeal filed by the  

plaintiffs/respondents could still proceed on the aforesaid  

basis. Accordingly, the High Court reversed the decision of the  

First Appellate Court and restored the decree passed by the  

Trial Court for delivery of possession of the suit house by the  

defendants/appellants to the plaintiffs/respondents. This  

decision is the subject matter of the challenge in the present  

appeal.   

 17. We have heard Mr. Gagan Sanghi, learned counsel  

appearing for the appellants and Mr. D.K. Sinha, learned  

counsel appearing for the respondents.  

18. The moot question is: whether the High Court exceeded  

its jurisdiction under Section 100 of the Code of Civil  

Procedure in reversing the judgment and decree passed by the  

First Appellate Court on the basis of independent findings and

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reasons recorded by it, and moreso, not specifically answering  

the substantial questions of law formulated for its  

consideration. If it were to answer the substantial questions of  

law in seriatim, perhaps the conclusion would have been  

completely different.   

 19. Reverting to the first substantial question of law, the  

factum of existence of the trust and the trust property is a  

matter of enquiry for registration envisaged under Section 19  

of the 1950 Act, which reads thus:   

“19. Inquiry for registration :   On the receipt of an application under section 18, or upon  

on application made by any person having interest in a  public trust or on his own motion, the Deputy or Assistant  

Charity Commissioner shall make an inquiry in the  prescribed manner 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,  

(iii) 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 trustees 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.”  

(emphasis supplied)  

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20. Clause (i) of Section 19 is about an enquiry of a fact as to  

whether a trust exists and whether such trust is a public  

trust. Clause (ii) is an enquiry about whether any (stated)  

property is the property of such trust. On completion of such  

enquiry, the competent authority is required to record its  

findings with the reasons therefor, in terms of Section 20 of  

the 1950 Act. After complying with the prescribed formalities  

by the applicant and upon the findings so recorded during the  

enquiry becoming final, the said authority is obliged to make  

entries in the register kept for that purpose as per Section  

21(1) of the 1950 Act. Such entries become final and  

conclusive, subject to any change to be recorded. This is  

predicated under Section 21(2) of the 1950 Act. Further,  

Section 79 of the same Act may be of some relevance. The  

same reads thus:-  

“79. Decision of property as Public trust property  

(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 on 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.”

23    

(emphasis supplied)      

This Court in Church of North India Vs. Lavajibhai  

Ratanjibhai and Others1 has noted that the 1950 Act  

provides for finality and conclusiveness of the order passed by  

the Charity Commissioner in Sections 21(2), 22(3), 26, 36,  

41(2), 51(4) and 79(2). The Court relying on Dhulabhai and  

Others Vs. The State of Madhya Pradesh and Another2  

expounded that such finality clause would lead to a  

conclusion that the civil court‟s jurisdiction is excluded if  

there is adequate remedy to do what the civil courts would  

normally do in a civil suit. The Court also held that the  

question as regards existence of a trust is a matter which  

squarely falls within the purview of the Act.  

21.  Furthermore, Section 80 of the 1950 Act posits a bar of  

jurisdiction of the civil court to decide or deal with any  

question which by or under the Act is to be decided or dealt  

with under the said Act. Section 80 of 1950 Act, reads thus:   

                                                           1  (2005) 10 SCC 760  2  (1968) 3 SCR 662

24    

“80. Bar of jurisdiction :   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.”  

22. Even for filing a suit concerning the  public trust, Section  

50 of the Act provides as under:   

 “50. Suit by or against or relating to public trusts or  

trustees or others  

In any case, -  

(i) where is alleged that there is a breach of a public  

trust, negligence, misapplication or misconduct on the  part of a trustee or trustees,   

(ii) where a direction or decree is required to recover  

the possession of or to follow a property belonging  or alleged to be belonging to a public trust or the  proceeds thereof or for an account of such property  

or proceeds from a trustee, ex-trustee, alienee,  trespasser or any other person including a person  

holding adversely to the public trust but not a  tenant or licensee,   

(iii) Where the direction of the Court is deemed necessary  

for the administration of any public trust, or 53   (iv) for any declaration or injunction in favour of or  

against a public trust or trustee or trustees or  

beneficiary thereof,   

the Charity Commissioner after making such enquiry as he  thinks necessary, or two or more persons having an interest  in case the suit is under sub clauses ( i) to (iii) , or one  

or more such persons in case the suit is under sub clause  (iv) having obtained the consent in writing of the Charity  Commissioner as provided in section 51 may institute a suit  

whether contentious or not in the Court within the local  limits of whose jurisdiction the whole or part of the subject

25    

matter of the trust is situate, to obtain a decree for any of  the following relief‟s :    

(a) an order for the recovery of the  possession of such property or proceeds  

thereof;   (b) the removal of any trustee or manager;   

I the appointment of a new trustee or manager;   (d) vesting any property in a trustee;   (e) a direction for taking accounts and making  

certain enquiries;   (f) an order directing the trustees or others to  

pay to the trust the loss caused to the same by  their breach of trust, negligence, misapplication,  misconduct or willful default;   

(g) a declaration as to what proportion of the  trust property or of the interest therein shall be  allocated to any particular object of the trust;   

(h) a direction to apply the trust property or  its income cy pres on the lines of section 56 if  

this relief is  54 claimed along with any other  relief mentioned in this section;   ( I ) a direction authorising the whole or any part  

of the trust property to be let, sold, mortgaged  or exchanged or in any manner alienated on  

such terms and conditions as the court may  deem necessary;   (j) the settlement of scheme, or variation or  

alteration in a scheme already settled,   (k) an order for amalgamation of two or more  trusts by framing a common scheme for the  

same;   (l) an order for winding up of any trust and  

applying the funds for other charitable  purposes;   (m) an order for handing over of one trust to the  

trustees of some other trust and deregistering  such trust;   (n) an order exonerating the trustees from  

technical breaches, etc;   (o) an order varying , altering, amending or  

superseding any instrument of trust;   (p) declaring or denying any right in favour of  or against, a public trust or trustee or trustees  

or beneficiary thereof an issuing injunctions in  appropriate cases; or  

26    

(q) granting any other relief as the nature of the  case may  require which would be a condition  

precedent to or consequential to any of the  aforesaid relief‟s or is  necessary in the interest  

of the trust:   

Provided that no suit claiming any of the reliefs  

specified in this section shall be instituted in respect of  any public trust, except in conformity with the  provisions thereof;   

Provided further that, the Charity Commissioner may  instead of instituting a suit make an application to the Court  

for a variation or alteration in a scheme already settled :  

Provided also that, the provisions of this section and other  consequential provisions shall apply to all public trusts,  whether registered or not or exempted from the provisions of  

this Act under subsection (4) of section 1.”  

(emphasis supplied)    

 And again Section 51 provides as under:  

 “51. Consent of Charity Commissioner for institution of suit  

  (1) If the persons having an interest in any public trust  intend to file a suit of the nature specified in section 50, they shall  

apply to the Charity Commissioner in writing for his consent. If the  Charity Commissioner after hearing the parties and making such  enquiries (if any) as he thinks fit is satisfied that there is a prima  

facie case, he may within a period of six months from the date on  which the application is made, grant or refuse his consent to the  

institution of such suit. The order of the Charity Commissioner  refusing his consent shall be in writing and shall state the reasons  for the refusal.  

(2) If the Charity Commissioner refuses his consent to the  institution of the suit under sub-section (1) the persons applying  for such consent may file an appeal to the Division Commissioner  

in the manner provided by this Act.   (3) In every suit filed by persons having interest in any trust  

under section 50, the Charity Commissioner shall be a necessary  party.

27    

(4) Subject to the decision of the Divisional  Commissioner in appeal under section 71, the decision of the  

Charity Commissioner under sub section (1) shall be final and  conclusive.”  

(emphasis supplied)    

Indubitably, the present suit is a suit for recovery of  

possession of the subject property on the basis of title claimed  

therein by the plaintiffs/respondents and being a property of  

the trust. However, the procedure envisaged under Sections 50  

and 51, obviously, has not been complied with. For, such  

permission has not been produced nor adverted to by the  

courts below.   

 23. Be that as it may, as the plaintiffs/respondents have  

claimed title in the suit property, that claim could be answered  

on the basis of the registration application of the trust, and  

schedule I regarding the registered properties of the trust.  

Whether the property is a property of the trust and including  

the question as to whether it should be so recorded as the  

property of the trust, is a matter exclusively within the domain  

of the Charity Commissioner.  

28    

24. In the present case, the registration application preferred  

by Chotelal unambiguously records House No.55 in Circle  

No.3 as being used for performing pujas in the temple. The  

temple name is mentioned as Shri Hanuman Deosthan. There  

is no reference in the application or in schedule I  recording  

the properties of the stated public trust to include the  

“Padukas of Haridas Baba” installed in House No.878 in Circle  

No.3. Concededly, no evidence is forthcoming to show that  

Hanuman Temple exists in House No.878 in Circle No.3 which  

is in possession of the defendants/appellants.   

 25. Suffice it to observe that the application for registration  

of the public trust submitted by Chotelal on 31st August, 1953  

(Exh.63), the subsequent application for registration  

submitted by him under the provisions of the 1950 Act dated  

13th September, 1961 (Exh.64), the schedule I recording  

properties of the plaintiff public trust (Exh.43), the enquiry  

report dated 13th October, 1954 (Exh.42), and the application  

for framing of the scheme and the order passed by the Charity  

Commissioner dated 4th April, 1975 (Exh.46), none of these

29    

document mention about “Padukas of Haridas Baba” installed  

in House No.878 or refer to House No.878 in Circle No.3 being  

the trust property; but instead, make specific reference           

to House No.55 in Circle No.3, which is a completely  different  

property. Notably, these documents also do not advert to the  

document dated 23rd May, 1946 (Exh.41), purportedly  

executed by Smt. Yashodabai allegedly creating a Panch  

Committee in respect of the suit House No.878 in Circle No.3.  

The finding of fact recorded by the First Appellate Court  

regarding the two properties and, more particularly, analysis  

in paragraphs 11 & 12 of its judgment (reproduced in  

paragraph No. 12 herein above), have been brushed aside by  

the High Court on the specious asumption that it is a case of  

mis-description of the property in the official register of public  

trust. That, however, was not the case pleaded much less  

proved by the plaintiffs/respondents. Such finding recorded by  

the High Court is a case of manifest error or error apparent, if  

not perverse. The High Court could not have disregarded the  

registration application and the description of the house  

number given in schedule I as the registered property of the

30    

public trust, which is House No.55 in Circle No.3. It was for  

the plaintiffs/respondents to plead and prove that House  

No.55 shown in schedule I as property of the plaintiff trust is  

the same as House No.878 in Circle No.3, which description  

has been given in the plaint as the suit house. Having failed to  

establish that fact, no fault can be found with the finding  

recorded by the First Appellate Court, that Shri Hanuman  

Deosthan, a public trust, had no causal connection with  

House No.878 in Circle No.3 occupied by the  

defendants/appellants. Thus, it must necessarily follow that  

the suit for possession (of House No.878 in Circle No.3)  

instituted by the plaintiffs/respondents on the basis of title,  

was devoid of merits.  

 26. We have no hesitation in upholding the finding of fact  

recorded by the First Appellate Court that the suit house  

occupied by the defendants/appellants was recorded in the  

Municipal records during 1947 to 1950 as House No.878  

belonging to Haridas Baba and that number was changed to  

House No.521 in 1973-74 and converted to House No.152 till

31    

the institution of the present suit. Further, it is clear that  

House No.55 in Circle No.3 is entirely a different property.  

That has been registered as the trust property of Shri  

Hanuman Deosthan public trust, initially at the instance of  

Chotelal and then continued to be shown as a registered  

property of the plaintiff trust until the institution of the suit.  

Such registration by the authorities under the 1950 Act would  

bind the plaintiffs/respondents.  The plaintiffs/respondents  

have not been able to produce any documentary evidence to  

establish the fact that the suit house (bearing House No.878 in  

Circle No.3, which later on became House No.152 in Circle  

No.3 by the time the suit was instituted), was the property of  

the plaintiff trust. The concomitant of such a conclusion is to  

dismiss the suit.   

 27. It is not necessary for us to dilate on every aspect dealt  

with by the First Appellate Court or for that matter, the High  

Court, for answering the substantial question of law under  

consideration. We affirm the conclusion reached by the First  

Appellate Court that the plaintiff trust had failed to produce

32    

any documentary evidence to substantiate the fact that suit  

House No.878 in Circle No.3 was the registered property of the  

plaintiff trust and that the registered property of the plaintiff  

trust bearing House No.55 in Circle No.3, is the same house in  

possession of the defendants/appellants. Pertinently, the  

latter property was not owned by Haridas Baba but belonged  

to one Ramlal Munnalal Halwai, having a temple of  

Radhakrishna and Ganpati. Further, the documentary  

evidence produced by the plaintiffs/respondents would, at  

best, establish the fact that Shri Hanuman Deosthan has been  

registered as a public trust and owns the property referred to  

in schedule I against its name (i.e. House No.55 in Circle  

No.3). Thus, the property registered as belonging to the  

plaintiff trust was other than suit house bearing No.878 in  

Circle No.3. For all these reasons, the First Appellate Court  

was justified in answering the principal issue against the  

plaintiff trust.   

33    

28. That takes us to the second substantial question of law  

formulated by the High Court for its consideration. The High  

Court has adverted to the relevant portion of the written  

statement to conclude that the defendants/appellants had  

admitted that the suit property was originally owned by  

Haridas Baba and that they were in possession in the capacity  

of caretakers only. Indeed, that admission can be discerned  

from the written statement of the defendants as well as the  

oral evidence of DW-1. But that admission does not take the  

matter any further. It is not possible to assume on the basis of  

that admission that the “suit house” (i.e. House No.878 in  

Circle No.3) is the property of the plaintiff trust. No  

documentary evidence has been produced by the  

plaintiffs/respondents to establish the fact that the suit house  

bearing House No.878 in Circle No.3 originally owned by  

Haridas Baba was recorded as the property of the plaintiff   

trust in the official records. The plea taken by the defendants  

in the written statement, however, is indicative of the fact that  

they (defendants/appellants) were occupying House No.878 in  

Circle No.3, which was originally owned by Haridas Baba and

34    

where his Padukas had been installed. The written statement  

as well as the oral evidence of defendants/appellants clearly  

refute the claim of the plaintiffs/respondents. In that, the  

trust named as Shri Hanuman Deosthan has been registered  

in reference to some other properties and for performing puja  

with the object of maintaining Hanuman Deosthan temple in  

House No.55 in Circle No.3. We also find that the High Court  

has selectively adverted to portion of the written statement  

[sub-paras (b) to (d) of paragraph 11 thereof] and not to the  

other portion of the same paragraph, namely sub-paras (e) to  

(g) (reproduced in paragraph 9 hereinabove) which put across  

the stand of the defendants/appellants including that the  

plaintiff trust has no causal connection with the suit house  

bearing No.878 in Circle No.3.  

 29. Needless to observe that the plaintiffs/respondents were  

primarily obliged to establish their title in the suit house  

bearing No.878 in Circle No.3 where the Padukas of Saint  

Haridas Baba have been installed, as being the property of the  

plaintiff trust. The plaintiffs must succeed or fail on the title

35    

they establish; and if they fail to do so, they must fail to get  

the relief of possession irrespective of title of the defendant in  

the suit property (See Brahma Nand Puri Vs. Naki Puri3 and  

Bajaranglal Shivchandrai Ruia Vs. Shashikant N. Ruia  

and Ors.4). In the present case, no tangible evidence regarding  

title of plaintiff trust in the suit house (House No.878 in Circle  

No.3) is forthcoming.   

 30. The High Court has also adverted to the so-called  

admission given by DW-1 Vijay, noted in paragraph No.12 of  

the impugned judgment. In our opinion, the High Court has  

completely misread the said admission. Inasmuch as, all it  

says is that the house number had changed every four years  

after revaluation. Further, the suit house is in Circle No.3.  

This is spoken by the witness (DW1), in response to the  

question posed to him about the change of Circle. He then  

admits that since 1910, the suit house was owned by Haridas  

Bairagi. We fail to understand as to how this admission can be  

of any avail to the plaintiffs much less to hold that the plaintiff  

                                                           3  (1965) 2 SCR 233  4   (2004) 5 SCC 272

36    

trust has title in the suit house bearing House No.878 in  

Circle No.3.   

 31. Much ado was made about the contents of a  

communication sent by defendant No.1 to the Mayor of  

Nagpur Municipal Corporation (Exh.75). The same reads thus:   

 “Exhibit-75  

To,   The Mayor, Nagpur Municipal Corporation  Wasudeorao Maniramji Pullarwar,  

Occupier Baba Haridasji Math,  House No.152, Ward No.6 New Ward  No.16, S. No.03, New Shukrawari,  

Fawara Chowk, Medical Road, Nagpur.     …..Applicant    

Subject: Objection to mutation on house No.152, Ward  No.16 circle No.03, New SShukrawari, Fawara Chowk,  Medical Road, Nagpur.   

 Sir,  

With respect, it submitted that house no.152, Ward  No.16 New Shukrawari Nagpur is recorded in the name of  Baba Haridas Math in the Nagpur Municipal Corporation  

assessment register for the last 70 years. The applicant is  the disciple of Baba Haridas for the last 60 years and is in  possession and occupation of it for last 30 years. He is  

looking after the Math and performing pooja/ustsav on  yearly basis (yearly Utsav). I am paying the taxes of the said  

math for the last 30 years as occupier and user. The receipts  to that effect are with me. The demand bill for the year 1978- 79 for taxes is given to the applicant. From that it has come  

to the knowledge of the applicant that the said house is  recorded in the name of “Shri Hanuman Deosthan Trust”.  

Then it is mentioned that the said change is as per the  decision of Learned Charity Commissioner, Mumbai dated  4.4.1975 and the same is recorded on 15.7.1976 in the  

name of Hanuman Deosthan Trust. However, in the office or

37    

register of Charity Commissioner, Mumbai or Deputy Charity  Commissioner, Nagpur dated 4.4.1975, there is no  

reference/mention about Shri Haridas Baba Math, House  No.152, Ward No.16, Circle No.3, New Shukrawari, Nagpur  

nor there is any reference in the copy received by me.      Hence, the Hanuman Deosthan Trust has got the  

name changed from Haridas Baba Math to Hanuman  Deosthan Trust by keeping the tax department in the dark,  fraudulently. The change is recorded by the assessment  

department of the Nagpur Municipal Corporation without  consulting or asking the applicant. The said change is not  

acceptable to the applicant.    Hence, the original name of Baba Haridas Math should  be maintained. Accordingly, the applicant is ready to pay the  

taxes as earlier.     

Also the Hanuman Deosthan Trust has got the change  done by keeping the Corporation in the dark. It has no  relation with the math.   

  Hence, the name of the said Trust be removed and  original name of Baba Haridas Math be maintained. The  

applicant be given opportunity to produce his documents  and say before yourself.  

 Nagpur  Dated: 17.3.1980    Sd/-Wasudeo Pullarwar  

       Applicant”  

We fail to understand as to how this communication can be  

used as an admission of the defendants much less of having  

accepted the title of the plaintiff trust in the suit House No.878  

(renumbered as House No.152), in Circle No.3. On the other  

hand, it is a representation made to assail the unilateral

38    

alteration of mutation entry in favour of Shri Hanuman  

Deosthan Trust in violation of principles natural justice.   

 32. Suffice it to observe that even the second substantial  

question of law must be answered against the plaintiffs and in  

favour of the defendants/appellants.   

33. Taking any view of the matter, we have no hesitation in  

upholding the conclusion recorded by the First Appellate  

Court that the suit filed by the plaintiffs/respondents for  

possession of the suit house is devoid of merits and deserves  

to be dismissed.   

34. Accordingly, this appeal succeeds. The impugned  

judgment and order passed by the High Court dated 24th  

October, 2008 in Second Appeal No.364 of 1990 is set aside  

and the judgment and decree passed by the District Court  

Nagpur dated 21st January, 1989 in Regular Civil Appeal  

No.564 of 1983, is restored. Thereby, the suit filed by the  

plaintiffs/respondents bearing Special Civil Suit No.1127 of

39    

1978 before the Court of Civil Judge, Senior Division, Nagpur  

stands dismissed. No order as to costs.  Ordered accordingly.     

…………………………..….J.                (A.M. Khanwilkar)  

…………………………..….J.               (Dr. D.Y. Chandrachud)  

New Delhi;  

November 16, 2018.