Case Note & Summary
The dispute arose from an interim application filed by Defendant No.1 in a civil suit instituted by Shri Hari Ashram, a public charitable trust registered under the Bombay Public Trusts Act, 1950 as applicable to Gujarat. The trust, through its trustees, sought recovery of possession of a residential unit (second and third floors of building Usha Villa) and undivided 50% share in the underlying plot in Juhu, Mumbai, along with damages and mesne profits from Defendant Nos. 1 and 2, who are the sons of the co-owner of the property. The trust acquired the suit premises by a registered deed of assignment dated 30 July 2012 from one of the co-owners. The plaint alleged that after the death of the religious head residing there, the defendants illegally took possession in November 2021. The defendant/applicant moved under Order VII Rule 11(d) CPC for rejection of the plaint on grounds that the suit was not maintainable without the prior consent of the Charity Commissioner under Sections 50 and 51 of the Bombay Public Trusts Act, 1950, that the civil court's jurisdiction was barred by Section 80 of the Act, that the lessor housing society was a necessary party, and that the suit was barred by limitation (the limitation ground was not pressed during arguments). The plaintiff contended that consent of the Charity Commissioner was not required for recovery of possession from trespassers, that the bar under Section 80 did not apply as the Charity Commissioner could not adjudicate possessory rights against strangers, and that non-joinder was not a permissible ground for rejection under Order VII Rule 11. The Court, after analyzing the relevant provisions and precedents cited by both sides, held that Section 50 of the BPT Act does not mandate prior consent of the Charity Commissioner for a suit against persons holding adversely to the trust, as the trust is merely enforcing its civil rights. The Court found that Section 80 of the Act does not oust the civil court's jurisdiction because the question of trespass and recovery of possession is beyond the purview of the Charity Commissioner. The Court further ruled that non-joinder of a necessary party is not a ground for rejection of a plaint under Order VII Rule 11(d) and that the society was not a necessary party in a suit for possession against trespassers. The Court relied on its own earlier decision in Shri Hari Ashram & Ors. vs. Khushalbhai Bhawan Kawa & Ors. and the Division Bench in Amirchand Tulsiram Gupta vs. Vasant Dhanaji Patil. Consequently, the Interim Application was dismissed, allowing the suit to proceed.
Headnote
A) Public Trusts - Suits by Trust - Consent of Charity Commissioner - Bombay Public Trusts Act, 1950, Sections 50, 51 - A public trust may file a suit for recovery of possession of its property from persons holding adversely to the trust (trespassers) without obtaining the prior consent of the Charity Commissioner. The consent requirement under Section 50 is not intended to deprive the trust of its common law rights against strangers. Held, the suit against the defendant sons of a co-owner for recovery of possession of the trust's share in the property as an alleged trespasser was maintainable without the Charity Commissioner's consent. (Paras 15-17) B) Public Trusts - Jurisdiction of Civil Court - Bar under Section 80 - Bombay Public Trusts Act, 1950, Section 80 - Section 80 of the Act does not bar the jurisdiction of the Civil Court in a suit for recovery of possession of trust property from trespassers because the question of possession by a trespasser is not one that can be decided or dealt with by the Charity Commissioner. The Charity Commissioner has no power to direct removal of trespassers. Held, that the suit was not barred by Section 80. (Paras 22-24) C) Civil Procedure - Rejection of Plaint - Grounds - Non-joinder of Necessary Party - Code of Civil Procedure, 1908, Order VII Rule 11(d) - Non-joinder of a necessary party is not a ground for rejection of the plaint under Order VII Rule 11(d); it is a defect that can be cured by amendment or impleadment. In a suit for recovery of possession from trespassers, the lessor society is not a necessary party as the dispute concerns possessory rights between co-owners and alleged trespassers. Held, that the objection regarding non-joinder of the Society could not lead to rejection of the plaint at the threshold. (Paras 25-26)
Issue of Consideration
Whether consent of Charity Commissioner under Sections 50/51 of Bombay Public Trusts Act, 1950 is mandatory for a trust to sue for recovery of property from trespassers; Whether Section 80 bars civil suit on matters within Charity Commissioner's jurisdiction; Whether non-joinder of the lessor society justifies rejection of plaint under Order VII Rule 11(d) CPC.
Final Decision
The Interim Application was dismissed. The court held that (i) consent of Charity Commissioner under Sections 50/51 BPT Act is not required for a suit against trespassers; (ii) Section 80 BPT Act does not bar the suit as the Charity Commissioner cannot decide question of trespass; (iii) non-joinder of Society is not a ground for rejection under Order VII Rule 11(d); and (iv) the ground of limitation was not pressed. The suit may proceed.
Law Points
- Consent of Charity Commissioner not required for suit against trespassers under Sections 50/51 BPT Act
- Section 80 BPT Act does not bar civil suit for recovery of possession from trespassers
- Non-joinder of necessary party is not a ground for rejection of plaint under Order VII Rule 11(d) CPC
