Anoop V. Mohta, J.
1. All these first appeals are filed by the respective appellants/original defendant No. 6, whereby challenge has been made to the judgment and decree dated 12th March, 1993 passed by the Additional District Judge, Pune in Civil Suit No. 6 of 1987, Civil Suit No. 10 of 1987, Civil Suit No. 19 of 1987, Civil Suit No. 4 of 1987 and Civil Suit No. 23 of 1987 respectively whereby, the suits filed by respondent No. 1 Trust, along with other Trustees, have been decreed in respect of the suit premises described in the respective plaint. It has been further declared that defendant/appellant has no right, title and interest in the suit premises to retain the possession of the suit premises. The appellant/defendant No. 6 has been directed to hand over vacant and peaceful possession of the suit premises described in the plaint within three months, failing which it has been further directed that Trust to recover the possession through court. The order of mesne profits as contemplated under Order 20, Rule 12(l)(c) of the Code of Civil Procedure (for short 'C.P.C.') has also been passed.
2. The appellants, therefore, being aggrieved by the same, preferred these separate appeals.
3. Heard learned Counsel for the parties. As the respondents are same and as all issues involved in these matters are same and as consented and agreed, by the common judgment and order all these appeals are being disposed of.
4. Sometime in the year 1965 respondent No. 1 Trust was registered under the Bombay Public Trust Act, 1950 (for short 'BPT Act'). An application was filed for framing a Scheme of the said Trust, before the Charity Commissioner, Pune, sometime in the year 1966. The said application was allowed and permitted the Trustees named therein to frame the scheme. As per the scheme, it was declared that C.T.S. No. 436, Guruwar Peth, Pune including Durga, Masjid and all katcha and pucca structures standing thereon were the trust property. The said order of the Charity Commissioner was challenged before the District Court, Pune. By an order dated 11th July, 1986 the 4th Additional District Judge, Pune, partly allowed the said application and from the said scheme excluded the Kutcha and pucca structures erected by the predecessor of respondent Nos. 2 to 7. The Respondent/Trustees being aggrieved by the aforesaid order preferred an appeal No. 808 of 1987 before this Court. In a suit filed by the respondents/Trustees, against the predecessor of respondent Nos. 2 to 7, by an order dated 3rd September, 1986 the Court held that the Civil Court has jurisdiction to try the said suit. Against that order a Civil Revision Application No. 557 of 1986 was filed before this Court. By an order dated 16th January, 1987 the said civil revision application was disposed of and it has been confirmed that the civil court has jurisdiction to try the said suit. By an Application No. 5 of 1987 the scheme was further amended and the kutcha and pucca structures erected by the predecessor of respondent Nos. 2 to 7 have been included as trust property. The learned Joint Charity Commissioner, therefore, by his order dated 28th January, 1987 held that the kutcha and pucca structures and the construction standing on C. T. S. No. 436, Guruwar Peth, Pune are the trust property as per the amendment of the scheme.
5. As per the scheme framed on 17th March, 1985 an application filed by respondent No. 2 before the Charity Commissioner, Pune for a suitable directions. The same was considered and an order was passed to take steps to protect and manage the trust properties.
6. Respondent No. 1 Trust and the Trustees along with others filed respective suits on 28th September, 1987. The basic prayers were against the appellants to declare that they have no right, title or interest in the property and/or to retain the possession of the same being trespasser, and/or illegal occupants and further prayed for possession of the suit premises. Respondent Nos. 2 to 5 and 7 in the Suit No. 26 of 1987 entered into a compromise on 15th October, 1991 and they vacated the premises and gave up all the rights. Respondent Nos. 2 to 7 also entered into a compromise on 24th September, 1992 and on the basis of the said compromise First Appeal No. 808 of 1987 was disposed of. The parties in all these suits led common evidence in support of their respective claims. The various issues were framed. The learned Additional District Judge, Pune (District Court) by an order dated 12th March, 1993 decreed the suits as referred above. The appellants have therefore, preferred respective first appeals.
7. It appears that during the pendency of this appeals, the appellant in First Appeal Nos. 328 of 1993, 757 of 1993, 761 of 1993 and 760 of 1993 have handed over the possession of the suit premises to the respondent Trust.
8. The learned Counsel appearing for the appellants in all these appeals has submitted that the suits as filed for possession of the suit property without obtaining a permission of the Charity Commissioner Under Sections 50 and 51 of the BPT Act are not maintainable. He further submitted that without prejudice to the above contention, even if such suits are maintainable, it should have been filed before the civil court of the lowest grade, as the Trustees/plaintiffs had invoked an usual civil remedy to take possession of the trust property. The 'Court' as defined Under Section 2(4) of the BPT Act means in the greater Mumbai, the City Civil Court and elsewhere the District Court. As admittedly, no permission was obtained, the present suits as filed before the District Court, Pune therefore, ought not to have been decreed. He has strongly relied on the judgment of the Apex Court in Church of North India v. Lavajibhai Ratanjibhai and Ors. : (2005)10SCC760 ; Shree Gollaleshwar Dev and Ors. v. Gangawwa Kom Shantayya Math and Ors. 1986 Mh.L.J. 809 and Leelavati w/o Vasantrao Pingle and Anr. v. Dattatraya Dhondiraji Kavishar and Ors. : 1988(2)BomCR429 . He thereby has submitted, to allow the appeals in view of Church of North India (supra) read with the provisions of Sections 50 and 51 of the BPT Act. In respect of the trust property the civil court has no jurisdiction and without obtaining the consent of the Charity Commissioner, no decree for possession can be claimed and/or awarded by the District Court. Therefore, the suit itself is without jurisdiction for want of permission and jurisdiction. Based on the Apex Court decision in Church of North India (supra) he has lastly contended that it is mandatory for the 'person interested', in the present case, 'Trust and Trustees', to get the permission from the Charity Commissioner for claiming the possession even from the trespassers and/or unauthorised occupiers.
9. learned Counsel appearing for respondent No. 1 resisted the said submissions and supported the reasoning given by the District Court. He has relied on Shree Gollaleshwar Dev (supra) as cited by the learned Counsel for the appellants also. He has further relied on Amirchand Tulsiram Gupta and Ors. v. Vasant Dhanaji Patil and Ors. : (1992)94BOMLR965 , Gafoor Ali Hussain and Ors. v. Ram Mahadik and Ors. : 2000(1)BomCR797 and Union of India and Ors. v. Dhanwanti Devi and Ors. (1996) 2 SCC 44.
10. In Leelavati (supra) while interpreting the scheme and specially Section 50 of the BPT Act, it has been observed that the suit by Trustee for possession of the property of the public trust against trespasser can be filed in usual way in the Court of ordinary civil jurisdiction or it can be filed with the permission of the Charity Commissioner in the District Court. By taking into account same provisions of BPT Act in Gafoor Ali (supra) the Bombay High Court has observed as under:
In fact this controversy has been resolved by a Division Bench of this Court in the case of Amirchand Tulsiram Gupta and Ors. v. Vasant Dhanaji Patil and Ors. reported in 1992(1) MkLJ. 275. Mr. Salunkhe and Mr. Kadam, learned Counsel appearing for the respondents referred me to that judgment which considers the earlier judgments of the Supreme Court as well as this High Court on this point and holds that the trustee is the legal owner of the property and enjoys all the rights inherent in a natural owner of property and can sue to recover trust property. Section 50 cannot apply as a bar to the substantive right of the trustee to institute suit. No permission Under Section 51 is necessary in such a case. In view of the above clear position, the learned Judge of the City Civil court was right in taking the view that the suit was maintainable and the consent of the Charity Commissioner was not necessary as a condition precedent.
The Apex Court recently in Church of North India (supra) while considering the provisions of the BPT Act and its scheme and quoting the case of Shree Gollaleshwar Dev (supra) further endorsed in paragraphs 81 and 82 that 'There is therefore no reason why the two or more persons interested in the trust should be deprived of the right to bring a suit as contemplated by Section 50(ii)(a) of the Act'. The Apex Court has further observed that 'It is clear from these provisions that Section 50 of the Act created and regulated a right to institute a suit by the Charity Commissioner or by two or more persons interested in the trust, in the form of supplementary statutory provisions without defeasance of the right of the manager or a trustee or a shebait of an idol to bring a suit in the name of idol to recover the property of the trust in the usual way'.
11. In view of this, there is no specific bar created either Under Section 50 or Sections 51 and 80 of the BPT Act to file a suit without the permission of the Charity Commissioner. Such a suit for recovery of possession of the trust property is, therefore, maintainable in the Court of ordinary civil jurisdiction.
12. Now the question is if such a suit is instituted in the Court of District Judge and it was tried after due contest, whether can be said to be without jurisdiction. Under the provisions of the Civil Procedure Code every suit should be instituted in the Court of lowest grade competent to try it. In the present case, suit was filed before the Additional District Judge /District Court being the court of higher grade. The judgment and order passed by the District Court being the Court of higher grade, cannot be said to be without jurisdiction. It does not affect the jurisdiction as such. At the most, this can be an irregularity but in the facts and circumstances of the case it no way affects the jurisdiction of the District Court to pass a judgment and decree in such a suit. The provisions of Civil Procedure Code to institute a suit in a lowest grade is a procedural aspect. It cannot affect the question of jurisdiction of Court to interfere and try such suit. Such provisions cannot limit or nullify a jurisdiction of the Court. Dakor Temple Committee v. Shankerlal Shankerlal AIR. 1944 Bom 300.
13. In K. Venkateswarulu and Ors. v. S. Satyanarayana and Ors. AIR 1957 A. P. 49, a Full Bench of Andhra Pradesh High Court held that even if a Division Bench proceeds to hear and decide the appeal, a valuation of which not exceeded Rs. 7,500/- and needs to be heard by Single Judge, it does not affect the jurisdiction and the judgment and decree passed by the Division Bench cannot be said to be a nullity. Such judgment and decree would be valid and binding on the parties. The defect, if any, is not material to the parties to the appeal and specially when no such objection to the hearing was taken by the parties at the relevant time.
14. In Mohini Mohan Das and Ors. v. Kunjbehari Das s/o Krishna Charon Das and Ors. : AIR1943Cal450 a Division Bench of the Calcutta High Court has observed that the provisions of Civil Procedure Code lay down a rule of procedure and it does not divest any Court's jurisdiction which it otherwise possesses under the statute constituting such Courts. The Court has further observed that 'It was observed by Petheram C.J. in (1885) 7 ALL 230 that the word 'shall' in Section 15, Civil Procedure Code, is imperative on the suitor. The word is used for the purpose of protecting the Courts. The suitor shall be obliged to bring his suit in the Court of the lowest grade competent to try it. The object of the Legislature is that the Court of the higher grade shall not be overcrowded with suits.... The proviso is for the benefit of the Court of the higher grade, and it is not bound to take advantage of it. If it does not wish to try the suit, it may refuse to entertain it. If it wishes to retain the suit in its Court, it may do so it is not bound to refuse to entertain it'.
15. It is settled now that BPT Act, as observed by the Apex Court in Church of North India (supra) is a complete Code. The 'person interested' as defined Under Section 2(10) and the 'trustees interested', under the scheme of the Act require to resort to the provisions of the BPT Act in all matters relating to the trust, trust properties and/or its management. There are various provisions which are available under the BPT Act which need to be resorted by the concerned parties. We are concerned with Sections 80, 50 and 51 of the BPT Act. The consistent view so far as Bombay High Court is concerned in respect of filing of suits by 'persons having interest' as defined in Section 2(10) of the BPT Act which includes 'Trustees' to recover possession of the property against person holding adversely has been considered in Shree Gollaleshwar Dev (supra), Amirchand Tulsiram Gupta (supra) and Leelavati (supra) and Gafoor Ali Hussain and Ors. (supra). All these judgments have made it very clear that in a suit, filed by Trustees of Public Charitable Trust, for eviction of a trespasser or for a recovery of possession and/or such action, no permission of the Charity Commissioner is necessary. Such suit, therefore, is maintainable against the trespasser, without the permission as contemplated Under Sections 50 and 51 of the BPT Act.
16. In the present case, the learned District Judge while granting the decree based on the earlier two compromises between the Trust and respondent Nos. 2 to 7, who claimed to be the owners of the properties in question, have themselves agreed that the properties in question have been owned by respondent No. 1 Trust. They further compromised that they have no right, title or any claim over these properties. Those compromise decrees/orders have been endorsed and confirmed by the High Court in First Appeal No. 808 of 1987. Having once accepted this aspect by respondent Nos. 2 to 7, through whom all appellants/ original defendant No. 6, claiming rights, now cannot be allowed to claim any better or superior right, than respondent Nos. 2 to 7. The compromise terms have further recorded the undertaking given by the parties to those proceedings in respect of the premises in question, which now binds the respective appellants also. Those undertaking and compromise terms have been taken note of by the District Judge while passing the impugned judgment and order. The reasoning given by the learned District Judge, therefore, has a foundation of these compromises terms, which according to me goes to the root of the matter and in a way settle the issue in favour of the Trust. Admittedly, there was no challenge made by any party to those proceedings in which the respective compromises have been recorded. The finality attained to such compromises in respect of trust and trust properties and respondent Nos. 2 to 7, further goes to show that the persons like appellants who are occupying and/or was in possession of the trust property illegally and therefore being trespassers, no permission of the Charity Commissioner was necessary.
17. learned Counsel appearing for the respondents rightly pointed out that there was no such objection about maintainability of the suit based on such plea had been raised at the relevant time before the District Court. The issue of jurisdiction as sought to be raised for the first time in this first appeals in reference to the maintainability of the suits before the District Court now should not be accepted. The Apex Court in Shree Gollaleshwar Dev (supra), Leelavati (supra), Amirchand (supra) and Gafoor Ali Hussain (supra) have already taken a view that no permission of Charity Commissioner is necessary in a suit filed by the Trustees for eviction against the trespasser. Those judgments in the facts and circumstances of the case are squarely applicable to the present matters.
18. The Apex Court decision in Church of North India (supra) as relied by the learned Counsel appearing for the appellants, has not dealt with the specific aspect of the permission from the Charity Commissioner to recover the possession of the trust property, as contemplated Under Sections 50 and 51 of the BPT Act, from the trespasser. The Apex Court decision, as rightly pointed out, has nowhere concerned with the question of evicting a person holding trust property adversely. That was not the suit for possession from the trespasser. Before the Apex Court the prayers were for a declaration that the former First District Church of the Brethern has ceased to exist and further that the Church of North India is the legal continuation and successor of the said First District Church of the Brethern, together with the right, title, claim, interest in or over its properties and the constitution, decisions and resolutions of the Church of North India, its Synod and the Gujarat Diocesan Council are binding on all the pastorates in Gujarat which are functioning as local churches or congregations under the First District Church of the Brethern.
19. In this background, Mr. Y. H. Muchhala, Senior Counsel appearing for respondent No. 1 has placed reliance in the case of Dhanwanti Devi (supra) basically for the principle of 'precedent' as contemplated under Article 141 of the Constitution of India. The relevant portion reads as under :
According to the well-settled theory of precedents, every decision contains three basic postulates (i) findings of material facts, direct and inferential. An inferential finding of facts is the inference which the Judge draws from the direct, or perceptible facts; (ii) statements of the principles of law applicable to the legal problems disclosed by the facts; and (iii) judgment based on the combined effect of the above. A decision is only an authority for what is actually decides. What is of the essence in a decision is its ratio and not every observation found therein nor what logically follows from the various observations made in the judgment. Every judgment must be read as applicable to the particular facts proved, or assumed to be proved, since the generality of the expressions which may be found there is not intended to be exposition of the whole law, but governed and qualified by the particular facts of the case in which such expression are to be found. It would, therefore, be not profitable to extract a sentence here and there from the judgment and to build upon it because the essence of the decision is its ratio and not every observation found therein. The enunciation of the reason or principle on which a question before a court has been decided is alone binding as a precedent.
Considering this principle and in the fact and circumstances of the case I am of the view that the judgment of Church of North India (supra) is distinct and distinguishable. The Apex Court has not taken any contrary view than the view expressed by the Bombay High Court in Amirchand Tulsiram Gupta (supra) Leelavati Vasantrao Pingle (supra) and Gafoor Ali Hussain (supra). The ratio of these judgments has remained untouched.
20. It is to be noted here that the Apex Court's decision in Shree Gollaleshwar Dev (supra) has been considered in the case of Leelavati (supra). The above both the judgments have been considered by the Division Bench of this Court in Amirchand Tulsiram Gupta (supra). As referred above, the Apex Court in Church of North India has considered and taken note of para 14 of the judgment in the case of Shree Gollaleshwar (supra). Therefore, there remain now no doubt that the Apex Court, after considering a series of judgments in reference to the issue in question, while considering Sections 50 and 51 of the BPT Act, is consistent on the issue that the permission of the Charity Commissioner is not necessary to file a suit against the tresspasser to get the possession of the trust property. There is nothing to disturb the consistent views taken by the Bombay High Court in the matters of Leelavati Vasantrao Pingle (supra), Amirchand Tulsiram Gupta (supra) and Gafoor Ali Hussain (supra) on the foundation of Shree Gollaleshwar Dev (supra). Therefore, the contention of the appellant that Church of North India (supra) now mandates and made it compulsory and/or necessary for the 'person interested' or 'Trustees' to get permission from the Charity Commissioner before filing the suit for possession of the trust property, even from the trespasser is rejected.
21. In the present case, without going into this controversy as also in view of compromises as recorded by the Trust that the other respondent Nos. 2 to 7 that resulted into clear finding against the appellant /original defendant No. 6 that they are trespasser and they have no right, title or any claim over the property in question. The impugned judgment, therefore, cannot be said to be perverse or contrary to law and/or record.
22. No prejudice as such has been pointed out or even borne out from the record in view of the fact that the District Court has passed the impugned judgment of eviction against the appellants. Parties have led their respective evidence and contested the respective pleadings. Having not raised such objection about the jurisdiction as contended for the first time in these first appeals and having participated before the District Court, I see, there is no reason now to accept the submission made by the learned Counsel appearing for the appellant to the effect that such proceedings or suits should have been filed before the Civil Judge, Junior Division or such other court of the lowest grade. Looking to the scheme of Sections 50 and 51 of the BPT Act and apart from the judgments of our High Court, such suits for possession against trespasser as permissible and as no permission is necessary from the Charity Commissioner, there is no reason now to interfere with the reasoning given by the District Court while granting the decree against the appellants-trespassers, who are admittedly in possession of the premises without any authority and right.
23. Therefore, as admittedly, the appellants are in possession of the premises in question, which are the trust properties, as trespassers, and as in the present case the suits are filed by the Trust and Trustees are maintainable and the learned trial judge therefore has rightly passed the decree for possession. Once a civil remedy as such is available and the present suits are maintainable and within the jurisdiction of the court, there is no reason now to interfere with the finding and the reasoning given by the District judge on this specific ground that the present suits should have been filed before the court of lowest grade and not before the District Court as filed. The suits as filed before the District Court cannot be said to be without jurisdiction looking to the scheme of Sections 2(4), 50 and 51 of the BPT Act itself.
24. The Apex Court recently in Harshad Chimanlal Modi v. DLF Universal Ltd. and Anr. : AIR2005SC4446 , after considering the Sections 15 to 21 of the C.P.C. relating to jurisdiction of Courts has observed as under:
The jurisdiction of a court may be classified into several categories. The important categories are (i) territorial or local jurisdiction; (ii) pecuniary jurisdiction; and (iii) jurisdiction over the subject-matter. So far as territorial and pecuniary jurisdictions are concerned, objection to such jurisdiction has to be taken at the earliest possible opportunity and in any case at or before settlement of issues. The law is well settled on the point that if such objection is not taken at the earliest, it cannot be allowed to be taken at a subsequent stage. Jurisdiction as to subject-matter, however, is totally distinct and stands on a different footing. Where a court has no jurisdiction over the subject-matter of the suit by reason of any limitation imposed by statute, charter or commission, it cannot take up the cause or matter. An order passed by a court having no jurisdiction is a nullity.
As there was no controversy about the territorial or local jurisdiction and/or pecuniary jurisdiction and even over the subject-matter, the judgment and decree cannot be said to be a nullity and/or void ab-initio.
25. Taking all this into account, the present First appeal Nos. 755 of 1993, 756 of 1993, 759 of 1993, 763 of 1993 and 764 of 1993 along with Civil Application Nos. 1514 of 2001, 1525 of 2001, 1545 of 2001 and 1522 of 2001 filed by the appellants are dismissed. The Judgments and decrees passed by the District Court in the respective suits are maintained.
26. In view of the dismissal of the appeals, the Civil Applications also do not survive and are disposed of as such. The Interim orders, as already granted, shall also stand vacated.
27. In the circumstances of the case, there shall be no order as to costs.