Abdul Karim Khan & Ors Vs.
Municipal Committee, Raipur  INSC 60 (8 March 1965)
08/03/1965 GAJENDRAGADKAR, P.B. (CJ)
GAJENDRAGADKAR, P.B. (CJ) DAYAL, RAGHUBAR RAMASWAMI, V.
CITATION: 1965 AIR 1744 1965 SCR (3) 300
Madhya Pradesh Public Trusts Act (30 of
1951)--Entry by Registrar that property belongs to Public trust--if conclusive
against real owner.
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]
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
S.T. Desai and A. G. Ratnaparkhi, for the
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
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 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
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
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 Sub Divisional 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 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
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 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 property 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 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
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.