Case Note & Summary
The dispute pertained to a claim by Seth Kasturmal Dalsukh Dharmashala, a registered public trust, that certain property at Dondaicha, District Dhule, was trust property and had been illegally possessed by the defendants, who were legal heirs of the founder. The trust filed Regular Civil Suit No. 2 of 2004 under Section 50 of the Bombay Public Trust Act after obtaining permission under Section 51, seeking declaration, perpetual injunction, and possession. The defendants, also legal heirs, denied the trust's title and claimed inheritance. They raised preliminary objections that the suit was barred by Order 2 Rule 2 CPC because an earlier suit for injunction (RCS No. 26 of 1997) had been returned for want of jurisdiction, and was also barred by limitation. The trial court decreed the suit for declaration and possession but denied perpetual injunction. On appeal, the High Court framed two additional issues: whether the suit was barred under Order 2 Rule 2 CPC, and whether the claim was within limitation. On Order 2 Rule 2, the court held that since the earlier suit was disposed of for want of jurisdiction without any adjudication, the bar did not apply. The court found the suit was within limitation as the defendants had not established adverse possession. On merits, however, the court found that the plaintiffs failed to prove the will dated 13.7.1936 and the dedication of the property to the trust; consequently, the suit property was held not to be trust property. The appeal was allowed, the decree was set aside, and the suit was dismissed with costs.
Headnote
A) Civil Procedure - Bar of Order 2 Rule 2 CPC - Earlier Suit Disposed for Want of Jurisdiction Does Not Bar Subsequent Suit - Code of Civil Procedure, 1908, Order 2 Rule 2 - The earlier suit for perpetual injunction was returned under Order 7 Rule 11 for lack of jurisdiction, and that order attained finality; since there was no adjudication by a court competent to try the subsequent suit, the bar under Order 2 Rule 2 CPC is not attracted. Held that the subsequent suit for declaration and possession based on the same cause of action is maintainable. (Paras 8-10)
Issue of Consideration
Whether the suit claim is barred under Order 2 Rule 2 of the Civil Procedure Code? Whether the suit property is trust property of plaintiff trust?
Final Decision
First Appeal No. 2577 of 2013 with Civil Application No. 13119 of 2013 is allowed. The judgment and decree of the trial court decreeing declaration and possession is set aside. The suit is dismissed with costs.
Law Points
- bar under Order 2 Rule 2 CPC not attracted when earlier suit dismissed for want of jurisdiction
- suit for declaration and possession not barred by limitation when possession with defendants and no adverse possession established
- burden of proving trust property on plaintiffs
- strict proof of dedication required under Bombay Public Trust Act
- will not proved so no trust created
Case Details
2018 LawText (BOM) (12) 30
First Appeal No. 2577 of 2013 with Civil Application No. 13119 of 2013
Vijay Dixit, M.V. Bhamre, S.P. Shah, S.P. Deshmukh
Smt. Shantidevi w/o Laxminarayan Agrawal, Jagdish s/o Laxminarayan Agrawal, Mahendra s/o Laxminarayan Agrawal, Krushnachandra s/o Laxminarayan Agrawal, Rajshree w/o Anil Agrawal
Seth Kasturmal Dalsukh Dharmashala through its trustees Shamlal s/o Jankilal Agrawal and Gopal s/o Jagdish Agrawal, Collector Dhule, State of Maharashtra, Charity Commissioner Mumbai
Subscribe to unlock Case Details (Citation, Judge, Date & more)
Subscribe Now
Nature of Litigation
Suit for declaration, possession, and perpetual injunction regarding trust property
Remedy Sought
Plaintiff trust sought declaration that suit property is trust property, perpetual injunction, and possession from defendants
Filing Reason
Defendants illegally obtained possession of trust property and denied plaintiff trust's rights, necessitating suit under Section 50 of Bombay Public Trust Act after permission under Section 51
Previous Decisions
Earlier suit for perpetual injunction (RCS No.26/1997) was returned for lack of jurisdiction; inquiry application under Section 41(e) dismissed; various appeals and writ petitions dismissed or withdrawn
Issues
Whether the suit claim is barred under Order 2 Rule 2 of the Civil Procedure Code?
Whether the suit property is trust property of plaintiff trust?
Submissions/Arguments
Appellants submitted that earlier suit for perpetual injunction was returned under Order 7 Rule 11 for lack of jurisdiction, and that order attained finality, so present suit barred under Order 2 Rule 2 CPC.
Respondent nos.1 and 2 submitted that earlier suit was disposed of for want of jurisdiction without adjudication, so bar under Order 2 Rule 2 not attracted; relied on Spring Fresh Drinks Pvt.Ltd. Vs Gani Sons Charitable Trust and P. Vijaykumar and Ors. Vs V.C.Gopalkrishnan.
Ratio Decidendi
For the application of Order 2 Rule 2 CPC, the earlier suit must have been decided by a court competent to try the subsequent suit; where the earlier suit was returned for want of jurisdiction, no adjudication occurred, so the bar does not apply. To establish trust property, plaintiffs must strictly prove the dedication and the will; failure to do so results in dismissal of the suit.
Judgment Excerpts
Regular Civil Suit No. 26 of 1997 was disposed of for want of jurisdiction to that Court by returning plaint. Therefore, there was no adjudication by the Court having jurisdiction to entertain that suit. In the circumstances, the bar under Order 2 Rule 2 of the Code of Civil Procedure is not attracted.
Appeal is allowed. Suit is dismissed with costs.
Procedural History
Plaintiff trust filed Regular Civil Suit No. 2 of 2004 in District Court, Dhule under Section 50 of Bombay Public Trust Act after permission under Section 51, seeking declaration, possession, and perpetual injunction. Trial court framed issues, conducted trial, and decreed suit for declaration and possession but denied perpetual injunction. Original defendants filed First Appeal No. 2577 of 2013 before High Court. During appeal, additional issues on Order 2 Rule 2 CPC bar and limitation were framed. High Court heard appeal and allowed it, setting aside decree and dismissing suit with costs.
Acts & Sections
- Bombay Public Trust Act, 1950: 50, 51, 41(e)
- Code of Civil Procedure, 1908: Order 2 Rule 2, Order 7 Rule 11
