Rajasthan High Court – Jodhpur
Champa Lal vs Metha Lal And Ors (2025:Rj-Jd:28190) on 1 July, 2025
Author: Rekha Borana
Bench: Rekha Borana
[2025:RJ-JD:28190]
HIGH COURT OF JUDICATURE FOR RAJASTHAN AT
JODHPUR
S.B. Civil Second Appeal No. 237/1993
Champa Lal son of Late Shri Chimna Ram, by caste Rawal
Resident of Undari Sumerpur, Tehsil Bali, Distt. Pali
----Appellant
Versus
1.Meetha Lal son of Shri Himmat Mal Ji
2. Tara Chand son of Shri Chuni Lal Ji,
All by caste Oswals, representative of the Village Undari,
Sumerpur, Panch Mahajan, Resident of Sumerpur, District Pali.
----Respondents
For Appellant(s) : Mr. Manas Ranchore Khatri
For Respondent(s) : Mr. C.P. Soni
Ms. Saritha Devi Soni
HON'BLE MS. JUSTICE REKHA BORANA
Judgment
01/07/2025
1. The present second appeal has been preferred against
judgment and decree dated 08.10.1993 passed by the Additional
District Judge, Bali in Civil Appeal (Decree) No.42/1986 (36/1982)
whereby the regular first appeal as preferred by the appellant
against judgment and decree dated 12.07.1982 passed by the
Civil Judge, Sirohi in Civil Original No.40/1979 stood dismissed.
Vide judgment and decree dated 12.07.1982, the learned Trial
Court proceeded on to decree the representative suit for eviction
as preferred by the plaintiffs. The Court also proceeded on to pass
a decree for mesne profit in favour of the plaintiffs for an amount
of Rs.204/- for the period from 01.03.1978 to the date of
institution of the suit.
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2. Vide order dated 02.12.2003, while admitting the present
appeal, following substantial questions of law were framed:
“(i) Whether the Courts below were right in not
first determining the valuation of the temple property
and proceeding to decide the whole matter without
adverting to determine the question of bar under
Section 29 of the Act?
(ii) Whether it was incumbent upon the Courts
below to try the issue of jurisdiction before proceeding
to determine other issues as per the Order 14 Rule 2
C.P.C.?
(iii) Whether the Courts below have rightly held
that the suit was properly constituted under Rule 1 of
Order 8 CPC?” (Order 1 Rule 8, CPC)
3. Arguing on the first question of law, learned counsel for the
appellants submitted that a specific objection regarding the
maintainability of the suit in terms of Section 29 of the Rajasthan
Public Trust Act, 1959 (hereinafter referred to as, ‘the Act of
1959’) had been raised by the defendants with a submission that
the Temple Trust was unregistered. The specific averment of the
defendants was that the temple in question was a private property
of two persons namely Seth Shri Panaraj and Munnilal. The
construction of four disputed rooms was also undertaken by the
said two owners of the temple only but the land on which the said
rooms were constructed was of the ownership and possession of
the defendants. The property of Jain Community/Jain Temple
neither constitutes any public trust nor any such trust has been
registered. Therefore, the learned Trial Court firstly was under an
obligation to decide whether the Trust in question was a ‘Public
Trust’ or a ‘Private Trust’. It is only after the said determination
been made, it could have been decided whether the Civil Court
had the jurisdiction to entertain the suit in question.
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4. Further, it is only after the said determination that the issue
whether the Trust in question was mandatorily required to be
registered, could have been decided.
5. Furthermore, whether the Trust (if it is so held) would be
governed by circular dated 28.06.1962 could also be determined
only after the above issue been decided. The learned Trial Court
having not determined the first and foremost question as to
whether the Trust in question was a public or a private Trust, all
the subsequent proceedings/findings were non-est as the same
goes to the root of the matter.
In support of his above submission learned counsel relied
upon a judgment of this Court in the case of Jagannath vs.
Satya Narain; 1973 AIR (Raj) 13.
6. Learned counsel further submitted that reliance of both the
Courts below on circular dated 28.06.1962 was also totally
misconceived, as once the objection regarding maintainability of
the suit on count of the Trust not being registered was raised by
the defendant, the burden to prove that the Trust was not required
to be registered in terms of Circular dated 28.06.1962 was on the
plaintiffs. The learned Trial Court wrongly placed the burden of
the said issue on the defendants and wrongly observed that the
defendants did not raise any plea to the effect that the Trust in
question was having an annual income of more than Rs.3,000/- or
the valuation of the assets of the Trust was more than
Rs.30,000/-. Counsel submitted that even otherwise, the plea
regarding valuation of the assets of the Trust being more than
Rs.30,000/- was very well taken by the appellants-defendants in
the first appeal. Hence, the First Appellate Court was under an
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obligation to decide the said objection but the First Appellate
Court without considering the said plea, erroneously affirmed the
finding of the learned Trial Court.
7. Responding to the above arguments, learned counsel for the
respondents-plaintiffs, while relying upon the judgment of a Co-
ordinate Bench of this Court in Bhagwanram vs. Thakurji
Hanumanji Maharaj Next Friend; 1989 (2) RCJ 451
submitted that the learned Trial Court rightly recorded a finding
that in absence of any specific plea raised by the defendant
regarding the annual income or the valuation of the assets of the
temple in question, it could not have been concluded that the
temple/Trust would not be governed by circular dated 28.06.1962.
8. Submitting on the second substantial question of law,
learned counsel for the appellants submitted that decision of the
said issue would be directly dependent on the decision of question
No.1. If the Court reaches to a conclusion that the Trust in
question was a private Trust, the suit in question would definitely
be not maintainable before a Civil Court. On the other hand, if the
Court reaches to a conclusion that the Trust in question is a public
Trust, then also the suit would not be maintainable before a Civil
Court for the reason of the Trust being unregistered in view of
Section 29 of the Act of 1959. Therefore, the learned Courts
below were under an obligation to first decide the issue of
jurisdiction and then to proceed with the suit proceedings.
9. Learned counsel further submitted that as was proved on
record, the property in question was a private property and hence,
plaintiff-Community could not have been treated to be a public
trust so as to maintain the suit in question before a Civil Court.
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10. Responding to the above argument, learned counsel for the
respondents submitted that the property of a temple is, by virtue
of law, a public Trust and is not required to be declared so. So far
as the registration of the Trust is concerned, the same was not
required in view of circular dated 28.06.1962.
11. Arguing on the third substantial question of law, learned
counsel for the appellants submitted that the suit in question
could not have been maintained in the frame of a representative
suit as there was no common interest of the respondents-plaintiffs
in the controversy involved in the suit. Learned counsel submitted
that the property in question was evidently a private property and
hence, no common interest of any other person could have been
concluded so as to entitle them to maintain a suit in the
representative capacity and hence, the permission as granted by
the learned Trial Court in terms of Order 1 Rule 8, CPC ought not
to have been granted.
12. Heard learned counsel for the parties and perused the
material available on record.
13. Coming on to the first Substantial Question of law,
“(i) Whether the Courts below were right in not
first determining the valuation of the temple property and
proceeding to decide the whole matter without adverting
to determine the question of bar under Section 29 of the
Act?
That is to say, whether the learned Courts below were
required to determine the valuation of the assets of the property
(temple) before proceeding on to decide the issue whether the suit
was barred in terms of Section 29 of the Act of 1959?
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14. A bare perusal of the written statement as filed by the
defendants reflects that the whole case of the defendant was that
the property in question (temple) was privately owned and
managed property. The case as put up by the defendant was that
the property was managed by two individual persons namely Seth
Shri Panraj and Munnilal. It is only in the last para that a cursory
averment to the effect that the trust was not registered in terms
of the Act of 1959 has been made. No pleading whatsoever
pertaining to Circular dated 28.06.1962 had been made in the
written statement. It is only in the first appeal that for the first
time the averment pertaining to Circular dated 28.06.1962 was
made. Even an application under Order 6 Rule 17, CPC was filed
on behalf of the defendant before the first Appellate Court for
amendment to the effect that valuation of the property of the
temple exceeded to Rs.30,000/- and hence, it would not be
excluded from the compulsion of registration in terms of Act of
1959. Interestingly, the said application was not pressed by
counsel for the defendants on 29.05.1989 before the First
Appellate Court and the said application was hence dismissed as
‘Not Pressed’. Along with the said application, application under
Order 41 Rule 2, CPC was also not pressed and dismissed as such.
15. In view of the above facts, this Court is of the clear opinion
that when no pleading whatsoever was even made by the
defendant regarding the valuation of the property (temple) in
question and no evidence whatsoever was led qua the same, the
learned courts below rightly did not enter into the determination
of the valuation of the property (temple) so as to decide whether
the trust in question was a public or a private trust and whether it
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was also compulsorily required to be registered in terms of the Act
of 1959.
16. As held in Bhagwanram (supra), even when a trust is a
public trust, the suit cannot be held to be barred by Section 29 of
the Act of 1959 if it is not proved from the evidence on record that
the total valuation of all its assets was more than Rs.30,000/- on
01.07.1962. Herein too, even if it is assumed that the trust in
question was a public trust, there is not an iota of evidence on
record to conclude that the total valuation of the trust in question
was more than Rs.30,000/- on 01.07.1962. What to talk of
evidence, there is not even a pleading to that effect. The
defendant having failed to aver a plea pertaining to the valuation
of the assets of the temple and having failed to lead any evidence
to that effect, as held in the case of Bhagwanram (supra), the
courts below were not required to compute the valuation of the
assets of the temple in question. Further, the applicability of
Circular dated 28.06.1992 was also not required to be gone into
by the courts below in absence of any plea to the said effect. In
the specific opinion of this Court, the burden was upon the
defendant to prove that the suit was not maintainable in terms of
Section 29 of the Act of 1959. The defendant having miserably
failed to lead any evidence on the said issue, issue No.6 was
rightly decided in favour of the plaintiffs.
17. Once this Court has reached to the conclusion that bar of
Section 29 of the Act of 1959 could not have come in way of the
plaintiffs, even if it is assumed that it was a public trust, the
ground raised by counsel for the appellant that the courts below
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ought to have first decided the question whether the trust in
question was a private trust or a public trust, becomes redundant.
18. At the cost of repetition, this Court holds that even if the
trust in question is assumed to be a public trust, there being no
pleading or evidence to the effect that the valuation of the assets
of the temple/trust in question was more than Rs.30,000/-, the
courts were not required to go into the said issue and in absence
of the fact of the assets being more than Rs.30,000/-, it could not
have been concluded that the trust in question was compulsorily
required to be registered and that in absence of such registration,
the suit on behalf of the trust was not maintainable.
19. This Court is of the above opinion also for the reason that
the defendant although moved an application for incorporating the
above ground before the First Appellate Court but the said
application was not pressed and was dismissed as such. Meaning
thereby, the ground even if any, stood not pressed and hence the
Court was not required to deal with an issue which firstly, was not
even raised at the initial stage and secondly, even when raised at
the first appellate stage, stood not pressed.
20. So far as the judgment in the case of Jagannath (supra) as
relied upon by the counsel for the appellant is concerned, the
same would be of no help to the appellant as therein too, the
Court specifically held as under:-
“Whether this Laxmi Narainjis temple is a public trust or
not may have to be decided by the authorities under
the Act but whether it is a public trust of the prescribed
valuation by way of income or valuation of assets or
not, is question which could be decided by the civil
court when such controversy is raised.”
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That is to say, the issue whether a trust is a public trust of
the prescribed valuation by way of income or valuation of assets,
is a question which could be decided by the Civil Court when such
controversy is raised. As observed above, the issue/controversy to
the said effect was not even raised by the defendant before the
courts below and hence, the ratio of Jagannath (supra) would not
apply to the present matter.
21. Question No.1 is hence answered in the terms that the
Courts below were right in not determining the valuation of the
temple in question.
22. So far as the ground raised by counsel for the appellant
regarding the determination of the nature of the trust is
concerned, in the specific opinion of this Court, it was not even the
case of the defendants before the trial court that the trust is a
public trust. Rather the pleadings as made were clear and specific
to the effect that the property was a private property managed by
two private individuals and the Jain Community had no say in it.
23. In view of the said specific pleading of the defendants, the
Courts were not required to determine the nature of the trust in
question. Further, as held by this Court in preceding paras, even
otherwise, the nature of the trust would not effect the
maintainability of the suit in question in the present matter, the
same being governed by Circular dated 28.06.1962.
24. Coming on to the second Substantial Question of law,
“Whether it was incumbent upon the Courts below
to try the issue of jurisdiction before proceeding to
determine other issues as per the Order 14 Rule 2
C.P.C.?”
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25. Issue No.6 was framed as under:-
“6& vk;k fooknxzLr eafnj dk jktLFkku ifCyd VªLV vf/kfu;e ds
vUrxZr jftLVªhd`r ugha gksus ds dkj.k nkok pyus ;ksX; ugha gSA izŒ ”
26. A bare perusal of the above issue reflects that an issue
pertaining to jurisdiction was very well framed by the learned trial
Court and was even decided on merit. Learned trial Court while
relying upon Circular dated 28.06.1962 specifically held that
Section 29 of the Act of 1959 would be applicable only on a trust
whose annual income was more than Rs.3,000/-. The Court
specifically observed that no pleading/evidence regarding the
annual income of the trust in question was pleaded/led by the
defendants. With the above specific finding, the Court decided
issue No.6 against the defendants.
27. In the specific opinion of this Court, the finding as recorded
by the learned trial Court and affirmed by the first appellate Court
being totally in consonance with law as well as the evidence
available on record, does not deserve any interference.
Question No.2 is hence answered in the terms that the
courts below did frame an issue pertaining to jurisdiction and even
decided the same on merit.
28. Coming on to Substantial Question of Law No.3,
“Whether the Courts below have rightly held that the
suit was properly constituted under Rule 1 of Order 8
CPC?”
29. Issue No.5 was framed as under:-
“5& vk;k oknhx.k vkns’k 1 fu;e 8 ds vUrxZr okn ykus ds
vf/kdkjh ugha gSaA izŒ”
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30. Replying to the application for permission to be granted to
the plaintiffs to file and continue the suit in representative
capacity in terms of Order 1 Rule 8, CPC, the defendant pleaded in
his written statement as under:
“2- okn i= in la[;k 2 nks esa fyf[kr dFku vlR; gksus ls
vLohdkj dj izR;qrj esa fuosnu gS fd mDr Jh ik’oZukFk Hkxoku ds
x`g eafnj dk LoxhZ; lsB Jh iujktth lqjk.kk ,oa Jh eqUuhyky
th iq= [ksepUnth us yxHkx lkS o”kZ iwoZ vius futh [kjps ls
cuokdj mlesa Hkxoku Jh ik’oZukFk dh izfrek fojkteku dh Fkh
mDr eafnj muds futh LokfeRo dk gksus ls os nksuksa mldh ns[k
js[k j[krs FksA mUgksaus vius futh [kjps ls izfroknh ds LoxZLFk
firk Hkwrkth dks osru ij iqtkjh fu;qDr dj eafnj esa Hkxoku dh
iwtk ,oa vU; dk;Z lqpk: :i ls fd;s tkus dh O;oLFkk Hkh dh
FkhA LoxZLFk iujktth lqjk.kk ds nsgkolku ds i’pkr~ Jh
eqUuhykyth ,oa muds iq= Jh fgereyth dk;Z lapkyu
LFkk;h :i ls viuh futh laifr ds :i esa eafnj dh ns[kHkky
djrs jgrs FksA vkSj eafnj ds iqtkjh dks osru Hkh vius ikl ls
[kjp fy[k dj nsrs FksA izfroknh vius firk Hkwrkth ds e`R;q ds
i’pkr mDr eafnj esa yxHkx ipiu o”kZ ls iqtkjh ds in ij dke
djrk jgk gS vkSj mldks osru Hkh LoxZLFk Jh eqUuhykyth ls nks
o”kZ iwoZ rd feyrk jgk gSA yxHkx ikap o”kZ iwoZ Jh fgereyth ds
xqtj tkus ij LoxZLFk Jh eqUuhykyth vdsys mDr eafnj dh
ns[kHkky ,oa O;oLFkk viuh futh lEifr ds :i esa vUr rd djrs
jgs tc rd nks o”kZ iwoZ eafnj esa ls Hkxoku dh izfrek dk mRFkkiu
fd;s tkus ls eafnj ‘kqU; ugha gks x;kA
13- okn i= in la-13 rsjg dk dFku vLohdkj gSA oknhx.k dk
;g okn izLrqr djus ds fy, flfoy izfØ;k lafgrk ds vkns” k
1 ,d fu;e 8 vkB ds micU/kksa ds vUrxZr U;k;ky; dh vuqefr
izkIr djus ds vf/kdkjh ugha gS D;ksa fd oknhx.k ftu yksxksa ds
izfrfuf/k dh {kerk ls ;g okn izLrqr djus dh vuqefr pkgrs gSa os
la[;k esa vuxf.kr u gksdj fuf’pr la[;k esa gh gSaA ”
31. A bare perusal of the above pleadings reflects that the only
averment of the defendant was that the number of people
representing the Jain Community is defined and hence they were
not required to be represented by the plaintiffs but could have
sued in their own name. Hence, the permission to file the suit in a
representative capacity could not have been granted by the Court.
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32. Sub-Clause (1) of Order 1 Rule 8, CPC reads as under:
“8. One person may sue or defend on behalf of all
in same interest.
(1) Where there are numerous persons having the same
interest in one suit,-
(a) one or more of such persons may, with the
permission of the Court, sue or be sued, or may defend
such suit, on behalf of, or for the benefit of, all persons
so interested;
(b) the Court may direct that one or more of such
persons may sue or be sued, or may defend such suit,
on behalf of, or for the benefit of, all persons so
interested.”
33. A bare perusal of the above provision clarifies that a suit can
be instituted with the permission of the Court by one or more of
the numerous persons having the same interest in one suit. The
provision nowhere defines the number of numerous persons. The
learned courts below while deciding Issue No.5 observed that
there were 27 Mahajan families in the village and all of the
members of the said families could not be impleaded in the suit
and hence, the suit was filed in representative capacity on basis of
the authority letter/proposal dated 17.10.1978 authorising the
plaintiffs to file the suit. The same being totally in consonance with
Order 1 Rule 8, CPC, the Court proceeded on to decide Issue No.5
against the defendants. This Court does not find any infirmity or
illegality in the said finding, the same being in total consonance
with Order 1 Rule 8, CPC.
34. Question No.3 is hence answered in the terms that the
courts below rightly granted the permission to the plaintiffs to sue
in representative capacity in terms of Order 1 Rule 8, CPC.
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35. In view of the above observations and conclusions, this Court
does not find any ground to interfere with the impugned
judgments and decree passed by the learned Trial court as well as
the first appellate Court.
36. The present second appeal is hence, dismissed.
(REKHA BORANA),J
184-Praveen/-
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