P.S. Brahme, J.
1. Heard learned counsel for the parties. Perused the record.
By this petition the petitioner challenges the Order dated 9-10-1986 passed by 15th Additional District Judge, Nagpur in M. C. A. 459/1983 whereunder respondents No. 1 and 2 were prevented from paying the amount of compensation as per award to the original petitioner till the decision on M. C. A. 459/1983. Petitioners sought declaration that the order passed by the 15th Additional District Judge, Nagpur in M. C. A. 459/1983 dated 9-10-1986 be quashed and set aside and that the amount of compensation be paid to the petitioners who are legal representatives of original petitioner.
2. The subject-matter of dispute is the entitlement of petitioners of compensation in respect of acquisition of the land admeasuring 17 acres 23 gunthas out of the land survey No. 86 as per the award dated 6-4-1987 in land acquisition case No. 10/A-65/84-85 of village Nanda by the Special Land Acquisition Officer (General), Nagpur respondent No. 2. Admittedly original petitioner purchased the agricultural lands comprised in survey No. 77/2 admeasuring 3.70 ars. field survey No. 78 admeasuring 1.38 ars and survey No. 86 area 49.97 ars in all 51.05 ars situated at village Nanda, Taluka Kamptee, District Nagpur by registered sale deed dated 9-7-1984 for a valuable consideration of Rs. 2,17,000/- from respondent Trust. The said property was previously owned by one Kuntibai w/o Shivprasad Bajpayee who in pursuance of Settlement Deed gave it to respondent No. 3 - Trust. As such the said property devolved on respondent No. 3 - Trust i.e. Shri Ramdeobaba Smarak Sarvajanik Samiti, Katol Road, Nagpur (hereinafter referred to as the 'Trust' for the sake of brevity and convenience). As the said property was sold to original petitioner by the Trust, the original petitioner claimed to have acquired valid and unimpeachable title in respect of that entire property.
3. Petitioner, after become full owner of the property sold about 22 acres of land out of survey No. 86 retaining remaining land with him. Admittedly in the year 1984, respondent No. 1 initiated proceedings for acquiring this remaining land from petitioner for re-settlement of project affected persons of village Nanda. As a consequence of issuance of notification Under Section 4, issued on 12-6-1985, petitioner filed his claim - statement and objection in the said proceeding. Except the petitioner and holders of lands shown in the notification, nobody raised objection to the acquisition. Respondent Nos. 3 and 4 did not raise objection for acquisition of land. It is to be noted at this juncture that some part of land out of survey No. 86 that fell to the share of respondent No. 4 in partition was also acquired in acquisition proceeding in respect of which notification Under Section 4 was issued and respondent No. 1 has made claim for compensation in respect of acquisition of that land. However, respondent No. 4 did not raise any objection for acquisition of the land of petitioners that came to be acquired that is very significant as respondent No. 4 has specifically disputed petitioner's title over the land out of survey No. 86 which came to be acquired and in respect of which award for compensation came to be passed.
4. In pursuance of the settlement deed in favour of the trust by Kuntibai a Change Report came to be filed before the Deputy Charity Commissioner, Nagpur Region, Nagpur. To this Change Report, respondent No. 3 and respondent No. 4 raised objection on several grounds including right of Kuntibai to execute Settlement Deed in favour of the trust. The said objections were considered by the Deputy Charity Commissioner, Nagpur and after hearing the parties, he was pleased to accept the Change Report Under Section 22 of the Bombay Public Trusts Act, 1950 by his order dated 30-3-1980. By that order he directed that entry be made in the Public Trust Register as per order of the Deputy Charity Commissioner, which came to be passed at the time of acceptance of the Change Report.
5. The respondent No. 4 then challenged the acceptance of the Change Report before the Charity Commissioner, Bombay by preferring an appeal under section 70 of the Bombay Public Trusts Act. The Charity Commissioner, Bombay confirmed the Change Report maintaining Order passed by the Deputy Charity Commissioner, Nagpur.
6. Respondent No. 4 again challenged the confirmation of the Change Report by preferring appeal Under Section 72 of the Bombay Public Trusts Act before the District Judge, Nagpur which was registered as Civil Appeal No. 459/1983. Learned District Judge granted stay on 9-10-1986 and directed that the amount of compensation which has been granted to the petitioner - Trust in respect of acquired field survey No. 86, would not be paid to anybody till the final decision in the appeal. This order came to be passed in Misc. Civil Application No. 459/1983 by 15th Additional District Judge, Nagpur, which is the subject-matter of challenge in this petition.
7. It is not disputed that when respondent Nos. 3 and 4 challenged the Change Report before the respective authorities, petitioner was not made party to these proceedings. Admittedly the petitioner was not made party to the appeal which was filed by respondent No. 4 before District Judge, Nagpur. Therefore, it is the contention of the counsel for petitioner that the impugned order passed by 15th Additional District Judge, Nagpur is not binding on the petitioner and as such it was obligatory on the part of the Land Acquisition Officer to pay the amount of compensation awarded to the petitioner under the award dated 6-4-1987. Accordingly, the petitioner filed application before Land Acquisition Officer, Nagpur for grant of compensation as per award. However, in view of the order passed by the Additional District Judge, Nagpur, petitioner was riot paid the amount of compensation as per award. It is submitted by learned counsel for the petitioner that he tried to join as party to the dispute between respondent Nos. 3 and 4 by filing application before the Charity Commissioner, Nagpur contending that he was interested person being the owner of the property in dispute since he has purchased it from the trust, under valid Sale Deed and some property out of that has been acquired which was the subject matter of litigation. However, the petitioner was not allowed to join as party to the proceedings. The said proceedings ultimately reached this court in the form of Civil Revision Application. However, this Court in revision held that since the petitioner was not interested person in the litigation between the trust and the respondent No. 4, he was not entitled to get himself imploded as party. Therefore, the petitioner claimed that since dispute was between the trust and respondent Nos. 3 and 4 only, the order passed by the learned Additional District Judge in Misc. Civil Application No. 459/1983 staying the payment of compensation is not binding on him. Learned counsel for the petitioner submitted that while considering the dispute as to Change Report, in respect of the respondent No. 3 Trust, the authorities as well as District Judge in appeal were not competent to decide the question of title to the property devolved on the trust. In the instant case respondent No. 4 while objecting the Change Report, basically challenged the competency of Kuntibai Shivprasad Bajpayee as owner of the property to give the property to the trust by Settlement Deed. The contention of respondent No. 4 in the inquiry was that the property that was given to the Trust by Kuntibai was joint family property and that Kuntibai was not exclusive owner of the same. Therefore, entitlement of ownership of property by devolution by the trust was challenged which consequently affected the ownership of property by petitioner who purchased it from the trust by registered sale deed. It is contended by learned counsel for the' petitioner - Mr. Daga that it was not within the competence of the authorities under the Bombay Public Trusts Act including the District Judge in appeal while considering the objection to Change Report in respect of devolution of the property on the trust, to decide the ownership of the property of the trust. It is further submitted that if that is so, then the learned Additional District Judge, Nagpur was in error in passing the Order impugned restraining the petitioner from receiving the amount of compensation Under the award. Learned counsel for the petitioner submitted that the Order passed by the Additional District Judge was not only illegal, but it is not binding on the petitioner as the petitioner was not allowed to participate in the proceedings.
8, The learned counsel for the respondent No. 4 submitted that the 'Settlement Deed' executed by Kuntibai is illegal as exclusive ownership of the property by Kuntibai was in dispute and that respondent No. 4 on the basis of that raised objection to the Change Report, therefore, respondent No. 3 trust had no right or authority to transfer this property in favour of petitioner. He submitted that the matter regarding the ownership of land purchased by petitioner is subjudice before the District Judge, Nagpur in Civil Appeal No. 459/1983. That issue is dependent on decision of the District Judge in appeal in respect of the ownership of the property acquired by the Trust Under the Settlement Deed. Therefore, the learned District Judge was justified in passing interim order restraining the respondent No. 1 and 2 from disbursing the amount of compensation to the petitioner as per the award till the decision of the matter pending in the court of District Judge. He submitted that the property in question was ancestral property of Munnaprasad and Durgaprasad Pande who were brothers and that Munnaprasad Pande died leaving behind him his widow Bholibai, who died in the year 1972 and one daughter Kuntibai. He submitted that on the death of Munnaprasad Pande, the property devolved upon his brother Durgaprasad Pande as Karta of the family and respondent No. 4 is son of respondent No. 4 (sic), therefore, Kuntibai had absolutely no right to gift the property to the trust and consequently the trust cannot claim exclusive ownership on the property and in turn petitioner who purchased the property Sale Deed cannot become exclusive owner of the property. The learned counsel therefore justified the order passed by the District Judge and prayed that the petition be dismissed.
9. It is revealed from the facts which are undisputed that the acquisition of the land by respondent No. 2 in pursuance of notification Under Section 4 of the Land Acquisition Act issued on 12-6-1984 was much subsequent to the purchase of the land by original petitioner under Sale Deed dated 9-7-1984. By the Settlement Deed dated 28-5-1972, executed by Kuntibai the said property was gifted to the trust. In pursuance of the acquisition of the property Under the Settlement Deed by the trust, there was proceeding as to Change Report to which the respondent No. 4 raised his objection. The matter came to be decided first by the Deputy Charity Commissioner, Nagpur by his order dated 31-3-1980. Annexure : C. It was respondent No. 4 who was main person who raised objection to the Change Report. As could be seen from the judgment, the Deputy Charity Commissioner has dealt with the objections raised by the respondent No. 4 disputing the acquisition of title over the property by the Trust. Contention of respondent No. 4 right from inception was that the property continued to be joint and therefore, Kuntibai was not competent to transfer the property to the trust by Settlement deed; that contention of respondent No. 4 was not accepted. Authority has found that respondent No. 4 could lead no evidence nor could explain as to whether the property was joint family property. It was found that the names of Kuntibai and her mother Bholibai were recorded only in the record of rights. Respondent No. 4 cannot explain as to how his father Durgaprasad remained silent after the death of his brother - Munnaprasad in the year 1964 till the death in the year 1977. It was specifically observed in the judgment that respondent No. 4 did not furnish even prima facie evidence to show that the disputed property continued to be joint. That is how the authorities passed order of accepting the Change Report.
Respondent No. 4 took up the matter to the joint Charity Commissioner, Nagpur by filing appeal No. 142/1980 challenging the order passed by the Deputy Charity Commissioner. The appellate authority by judgment and order dated 22-7-1983 dismissed the appeal. In that appeal the trust was respondent and it was contended by the trust that there was partition between the two brothers Munnaprasad and Durgaprasad and the property in question was allotted to the share of Munnaprasad. Authority accepted that contention. It was found that the property was gifted to the Trust under the 'Settlement Deed'. Consequent upon this finding the Joint Charity Commissioner dismissed the appeal. As such the title acquired by the trust under the Settlement Deed vis-a-vis property in question was confirmed. Respondent No. 4 feeling aggrieved by the dismissal of appeal, admittedly preferred appeal before the learned District Judge, Nagpur Under Section 72(3) of the Bombay Public Trusts Act and in Misc. Civil Application No. 459/1983 learned 15th Additional District Judge, Nagpur passed the impugned Order.
The question is about the competency of the Civil Court to decide the issue of title, in respect of the property acquired by the parties and that too in proceeding which is initiated and arising out of rejection of objection to the Change Report. In that context the decision of our High Court in Jagatnarayansingh Swarupsingh Chithere and Ors. ... Appellants v. Swarupsingh Education Society and Anr.....Respondents reported in 1980 Mh. L. J. 372, while dealing with the scope of inquiry Under Section 22 of the Bombay Public Trusts Act of 1950 and the Bombay Public Trust Rules 1951, Rule 7, it is observed ;
'Though prima facie it appears to be a mere change, the inquiry Under Section 22, Bombay Public Trust Act is a judicial process and cannot be mere factual process or one purely of a formal nature. Investigation into the legality and validity of the change is implicit. The mere fact that a suit may lie cannot nullify its judicial character and trappings nor can it obviate the need to determine either suo motu or at the instance of party aggrieved the legality and validity of the change in question. Thus, the inquiry under section 22 does not relate only to the factum of the change but also to its legality and validity.'
Though the counsel for respondent placed reliance on this decision, it is of no assistance as it is not laid down by this Court in this case that question of title to the property acquired by the Trust, can be considered within the ambit of inquiry in respect of the Change Report. In fact what has been laid down in this case is that the inquiry is not limited to the factum of change, but extends to its legality and validity. Therefore, in our considered opinion, what is under the purview of the scope of inquiry is to consider the legality and validity of the change. That no way is concerned with the legality of the acquisition of title by the trust.
10. In this context the learned A.G.P. has placed before us the Full Bench Decision of our High Court reported in : AIR1973Bom130 , Keki Pestonji Jamadar and Anr., Appellants v. Khondadad Merwan Irani and Ors., respondents. The question that fell for consideration before the Full Bench was whether the author of the trust was the lawful owner of the property of which he has created the trust or had otherwise authority to create the trust is not covered by Section 79 and hence is outside the scope of the inquiry Under Section 19. Consequently Section 80 is no bar to Civil Court's jurisdiction to decide such a question, irrespective of whether or not plaintiff was or was not party to proceeding Under Section 19. The question of title in respect of the property acquired by the trust has to be decided by the Civil Court in independent suit filed therefore for adjudication of the same. It is in that respect it is held that Section 80 of the Bombay Public Trust is no bar to Civil Court's to decide such a question. In this context in paragraph 18 of the judgment the court observed :
'The provisions of Section 79 are too clear to admit of doubt or difficulty as regards' the description of questions which the Deputy or Assistant Charity Commissioner has to decide or deal with under the Act and in respect of which the decision is final and conclusive. The next step, however, is fraught with difficulty and that step is to determine the scope and ambit of these questions. The first of the three questions which the Deputy or Assistant Charity Commissioner has to decide is 'whether or not a trust exists'. We find it impossible to accept the contention of the contesting respondents that all that is required to be decided under this head is whether in fact a trust is made and is in existence.......'
In paragraph 19 the court observed :
'The second question which the authorities have to decide Under Section 79 is whether 'such a trust is a public trust'.The ambit of this inquiry is indicated by the definition of public trust in Section 2(13).'
In paragraph 20 the court observed :
'The third question relegated to the decision of the Deputy or Assistant Charity Commissioner is whether the 'particular property is the property of such trust'. This clause is couched in words of doubtful import leading to the expression of divergent views as regards its scope. Learned counsel for appellant contended for the view that as the question whether the particular property is the property of the trust cannot be answered without deciding whether the author of the trust had the right or title to the property conveyed to the trust, the authorities must decide this latter question and, indeed, it is their function and duty to decide it. It is urged that questions of title to the particular property are thus required to be decided in inquiries under section 19 and the jurisdiction of the Civil Court to decide those questions is barred Under Section 80. The contesting respondents contend for the rival view that the question whether the author of the trust had title to the property conveyed to the trust is outside the scope of the inquiry Under Section 19 and therefore, the jurisdiction of the Civil Courts to decide or deal with that question is not barred.'
The Court further observed.
'Having considered the matter in all the aspects presented before us, we are of the opinion that the respondents are right in their contention. The purpose of the Act, the procedure prescribed in the inquiries Under Section 19 the absence of any remedy Under the Act to those who were not parties to the inquiry Under Section 19 but whose anterior or superior title would be concluded by the decision in that inquiry and the general scheme of the Act, all tend to show that questions of title to the trust property are outside the scope of the inquiry under section 19.'
11. The procedure prescribed by the Act for the conduct of the inquiry Under Section 19 is wholly unsuited to proper and effective adjudication of disputed titles to the trust property. Rule 11 provides that officer holding the inquiry may only make a memorandum of substance of what each witness deposes. It is unthinkable that question of title could be permitted to be decided by Tribunal finally and conclusively without any obligation to record the evidence fully. It is not part of the functioning of the authorities Under Section 19 to decide the claims which are adverse to the trust and which are made in assertion of titles which are hostile to the trust. Such titles cannot be held to be concluded in violation of principles of natural justice. If the Civil Court upheld the title of third party to the property which Under Section 19 has been found to be belonging to the Trust, the record of the Charity Commissioner has to be amended so as to accord with that decision. This itself shows the decision of the Joint Charity Commissioner even as appellate authority concerning the title of the property of the trust is not conclusive. The reason being that it was not within the purview or scope of the inquiry contemplated under the Bombay Public Trust Act to be made by the authorities to decide the question of title of the property of the trust. Therefore, it is within the competence of the Civil Court to decide the question of title in respect of the property acquired by the trust and it is in that sense jurisdiction of the Civil Court is not barred Under Section 80 of the Bombay Public Trust Act to decide the question of title.
12. The proceedings before the District Judge in which the impugned Order came to be passed was arising out of the Orders passed by the authorities below, in respect of the Change Report. In other words the subject matter of challenge before the District Judge in appeal was the confirmation of the Change Report by the authorities refusing the contention of respondent No. 4. If that is so, then respondent No. 4 cannot agitate before the District Judge as to question of title in respect of the property in dispute which came to be acquired by the trust Under the Settlement Deed. The competency of the District Court in appeal was in respect of question as to validity of the trust and legality of the Change Report. In other words the remedy for respondent No. 4 to question the validity of the title to the property acquired by the trust was to file a civil suit in the court, as the jurisdiction of the Civil Court to decide the question of title is not barred Under Section 80 of the Bombay Public Trust Act. It is in this contest it has to be said that the question of tide gone into by the authorities was not within the competence of the inquiry conducted by the authorities in respect of the Change Report. This we say so, though ultimate conclusion arrived at by the authorities below on facts as to the title of acquisition over the property of the trust, is in favour of the trust. Therefore, by way of analogy to this, it is not within the competence of the District Judge in appeal preferred by respondent No. 4 to decide the question of title in respect of the property acquired by the trust. The only question that the District Judge or Additional District Judge to whom the appeal has been assigned was entitled to go into as to the legality and validity of the Change Report. If that is so, then the Additional District Judge has committed an error in passing the impugned order restraining respondents No. 1 and 2 from disbursing the amount of compensation to petitioner. It goes without saying that the learned Additional District Judge passed the order on the assumption that the question of title to the property acquired by the Trust, was subjudiced before him in appeal filed by respondent No. 4. It has to be said that it is not at all within the competence of the District Judge or Additional District Judge to decide the question of title over the property acquired by the trust, that is much more so when the petitioner who derived title Under Sale Deed that came to be executed by the Trust in his favour and Additional District Judge proceeded to pass the said order without hearing the petitioner. Admittedly, the petitioner was not party to the proceeding. It is a matter of record that petitioner at the inception of the proceedings before the authorities tried to get himself impleaded as party to the proceedings, but his request was refused. In such circumstances, the learned Additional District Judge committed grave illegality in passing this Order. That apart petitioner being not party to the proceeding before the Additional District Judge in appeal, that order is not at all binding on the petitioner. In that view of the matter, respondents No. 1 and 2 also fell in error in denying the payment of compensation to petitioner because the learned Additional District Judge passed the impugned Order. The order passed by the learned District Judge cannot sustain in law. It is certainly beyond the scope and competency of the court and consequently the order will have to be quashed and set aside. Hence the writ petition is allowed. The impugned order is quashed and set aside. Respondents No. 1 and 2 are directed to pay the amount of compensation to the legal representatives of petitioner who have been brought on record in the petition. Record shows that the amount of compensation has been deposited in the court in pursuance of the Order passed by the court. Therefore amount be paid to the petitioners on their making application to the Registrar of this Court after six weeks of the passing of this order. Rule is made absolute in the aforesaid terms with no order as to cost.