HAIDARALI GULAMALI Vs. SAIYED GULAM MOHIUDDIN

JUDGEMENT

(1.) This is an application for revision of an order passed by the District Judge of Broach on an application made by the opponent Saiyed Gulam Mohiuddin alias Mirasaheb Bavasaheb against the petitioners under Section 3 of the Charitable and Religious Trusts Act (XIV of 1920) praying that the petitioners should be directed to furnish accounts of the trust properties belonging to the Dargah of Halimsha Pir of Ankleshvar, and for examination and audit of the accounts for three years. The opponents in the lower Court contended that the villages were their private property, only one survey number measuring three acres and four gunthas being wakf, and also that they had become owners of the villages by adverse possession for the statutory period. The learned District Judge found after inquiry that the properties mentioned in the application, viz., the villages of Dadhal and Amboli in the Ankleshvar taluka of the Broach District, were wakf properties of the Dargah of Halimsha Pir and directed the opponents (the present petitioners) to furnish accounts for three years.

(2.) The petition has been argued before me on four grounds, three of which relate to the jurisdiction of the Court. It is urged that the learned District Judge had no jurisdiction to entertain the application because, firstly, the opponents (petitioners) had raised a question of title contending that the villages were their private property and not wakf and that in any case they had been in adverse possession for the statutory period ; and, under Section 5, Sub-section (6), of the Act, the District Judge had no jurisdiction to try or determine any question of title between the petitioner and any person claiming title adversely to the trust. The contention does not appear to me to be a sound one. I am unable to agree with the view that it was the intention of the legislature that the moment the opposing party in an application made under Section 3 of the Act puts forward a claim of title adversely to the trust the jurisdiction of the Court is ousted. Where such a claim is put forward, it amounts in effect to a denial of the existence of the trust. The Act provides that if any person appears at the hearing of the petition and either denies the existence of the trust or denies that it is a trust to which the Act applies, and undertakes to institute within three months a suit for a declaration to that effect and for any other appropriate relief, the Court shall order a stay of the proceedings, and, if such suit is so instituted, shall continue the stay until the suit is finally decided. If the undertaking is not given, or if after the expiry of the three months a suit is not filed, the Court is bound to decide the question in a summary way and for the limited purposes of the Act only, i. e., to decide whether a trust exists, and, if so, whether accounts for three years should be directed to be filed. In doing so, the Court is precluded by Sub-section (6) of Section 5 from trying or determining any question of title between the petitioner and persons claiming adversely to the trust. But it does not appear to me to be the intention of Sub- section (6) of Section 5 that the moment a claim adverse to the trust is advanced, the jurisdiction of the Court should be ousted. If that were so, it would be possible in every case for the opposing party to oust the jurisdiction of the Court. If a person claims to hold adversely to the trust, it is open to him to take advantage of the concession given to him by Section 5, Sub-section (3), and to get the question determined by a regular suit. If he does not claim this concession, or if, having claimed it, he does not avail himself of it, the Court must decide for itself whether a trust exists. The opposing party has his remedy still open by a regular suit, even if the District Judge has decided against him on the question of existence of the trust. The question whether a person who had not given the undertaking mentioned in Section 5, Sub-section (5), of the Act, could, after the District Judge had decided that there was a trust to which the Act was applicable, file a regular suit for a declaration that the property was his personal property and not subject to any trust to which the Act applied, was very fully considered in Mahadeo Bharthi V/s. Mahadeo Rai (1929) I.L.R. 51 All. 805. There was a difference of opinion between the two learned Judges, Niamut Ullah J. holding that Act XIV of 1920 nowhere provided expressly or impliedly that the order of the District Judge passed under Section 5 was conclusive as to the existence of a trust falling within the scope of the Act and that it could not be challenged in a regular suit before a Court of competent jurisdiction, and that the order of the District Judge did not fulfil all the requirements of the rule of res judicata so as to be a bar to a subsequent suit, while Mukerji J., on the other hand, held that such a suit was not permissible. I am, with respect, of opinion that the view taken by Niamat Ullah J. is the correct one, and that an order passed by the District-Judge under Section 5 of the Act does not debar the opposing party from filing a regular suit afterwards to establish his title.

(3.) It may be noted that in the Allahabad case referred to above, the opposing party had denied the existence of the trust and, as would appear from the suit subsequently filed by him, had claimed that the property was his private property. It was not contended in the course of the proceedings in the High Court that the opposing party having claimed title adversely to the trust, the District Judge had no jurisdiction to try the matter at all.