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Wednesday, November 28, 2018

concurrent findings of the courts below - no reason to interfere. - Second appellant took the plea of alibi - failed to discharge - non disclosing the name of lover of deceased by the accused is fatal to belive the case of accused /appellant No.1 given under Sec.313 - both courts below accepted the prosecution version - of course inaction of police from breaking open the doors to save the victim from the hands of accused and watching for 5 minutes till the accused came out after compelting their job - spell some doubts - can not detract the court from coming to different version due to failure of accused in discharging their burden - held that concurretn findings can not be distrubed.




There is a case for the
appellant that the conduct of P.W.2 in not breaking
5
open the door and only watching the occurrence for
five minutes renders the evidence suspect.

8. We are not persuaded to overturn the
concurrent findings of the courts below

No doubt, the High Court has
taken the view that D.W.1 has not given complaint
to the higher police officers. The High Court no
doubt also finds fault with the first appellant in
6
not disclosing the name of the person with whom his
wife was found to be in a compromising position.
Even proceeding on the basis that he may not have
known the name of the person it still does not
detract from us reposing confidence in the
testimony of the police officer. The presence of
the second appellant and her being apprehended by
the police officers, has been believed by both the
Courts and this is completely inconsistent with the
case set up by the appellants. In such
circumstances, we see no reason to interfere.

NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.580 OF 2010
ASHWANI KUMAR & ANR. ...APPELLANT(S)
VERSUS
THE STATE OF PUNJAB ..RESPONDENT(S)
JUDGMENT
K.M. JOSEPH, J.
1. The appeal by special leave is directed
against the judgment of the High court of Punjab &
Haryana in Criminal Appeal No.103 of 2000
dismissing the appeal filed by the appellants,
confirming the conviction and sentence under
1
Section 302 read with Section 34 of the Indian
Penal Code.
2. Heard the learned counsel for the parties.
3. The prosecution case is that on 18.9.1998
the Assistant sub-inspector along with Head
Constable of police and other police officials were
on patrol duty and while so at about 1.30 p.m.,
they heard shrieks from one room of the house,
which was bolted from the inside. From the gaps in
the door of that room, the Assistant sub-Inspector
peeped inside the room and found that one man was
sitting on the chest of the lady, who was made to
lie on the ground and he was pressing her neck.
One lady was standing near that place and holding a
pucca brick, in her hand. She gave two blows with
the said brick on the person of the lady lying on
the ground. She told the man, the co-accused that
the said lady who was being assaulted was insulting
her before others who was his wife. She also
exhorted the man that he should finish her,
2
thereupon the man lifted a ‘khurpa’ and gave blows
with it. After killing her, both man and the woman
came out and they proclaimed that they have
accomplished their job. It is this man and woman
who are appellants before us.
4. The murdered lady was the wife of the
first appellant. The prosecution advanced its case
through the sub-inspector who was examined as P.W.2
and Head Constable who was examined as P.W.3 Under
Section 313 Cr.P.C. the first appellant has given
the following written statement:
“On the day of occurrence, I left my house
for going to Amritsar. On the way, I
found that I have left my purse at my
house. As such, I returned back to take
my purse. I saw a man holding my wife in
his arms and my wife also holding him. On
seeing me, he ran away. In a rage, I gave
push to my wife and her head struck
against wall. My wife started saying that
I cannot satisfy her sexually and
continued to say that my six months old
son is not from my loins but is from the
loins of this person. She told that she
will have other child from loins of her
lover also. I lost control over myself and
under this provocation caused injuries to
3
my wife. I had extreme love with my child.
I myself had appeared before police and
informed about the occurrence. The police
made out a false case against me later on
and police men became false witnesses.”
5. The second appellant in her 313 statement
claimed that she was innocent and was not present
at the time of the alleged occurrence.
6. The Trial Court on the basis of the
evidence accepted the prosecution version and
convicted the appellants. The High Court also
reposed confidence in the prosecution version.
7. Learned counsel for the appellants
impugned the prosecution version and drew our
attention to the evidence of D.W.1. D.W.1 has
inter alia stated as follows:
Many persons had collected there at the place.
He asked first appellant as to what he had done,
thereupon the first appellant disclosed that he
suspected that somebody was present in his house
4
along with his wife and the doors were closed and
out of sudden provocation, he had killed his wife.
He informed this incident to C. Karam Singh and SPO
Kultar Singh who came on a scooter at the place of
occurrence. He would say that before their arrival
no other police official arrived at the spot. C.
Karam Singh and SPO Kultar Singh then took the
first appellant to the police station. In his
cross examination he has stated that he did not
move any application regarding this incident to the
higher police authorities or executive authorities.
He denied that ASI who had come as prosecution
witness and other police officials had arrested
both accused. As many as 12 stab wounds have been
noted. This is besides 3 lacerated wounds.
According to the doctor, the death in this case was
due to haemorrhage and shock as a result of stab
injuries which was sufficient to cause death in the
ordinary course of nature. There is a case for the
appellant that the conduct of P.W.2 in not breaking
5
open the door and only watching the occurrence for
five minutes renders the evidence suspect.
8. We are not persuaded to overturn the
concurrent findings of the courts below. As
observed by the High Court, there is no motive for
the police officials to falsely implicate the
appellants. The case of the second appellant is
one of alibi. She has not discharged her burden to
show that she was elsewhere. On the other hand,
there is evidence of the police officials that
after committing the crime, the appellants came out
and proclaimed that they have accomplished what
they wanted. They were apprehended. In such
circumstances, we see no reason to allow the
appellants to rely upon the statement of the first
appellant under Section 313 Cr.P.C or upon the
deposition of D.W.1. No doubt, the High Court has
taken the view that D.W.1 has not given complaint
to the higher police officers. The High Court no
doubt also finds fault with the first appellant in
6
not disclosing the name of the person with whom his
wife was found to be in a compromising position.
Even proceeding on the basis that he may not have
known the name of the person it still does not
detract from us reposing confidence in the
testimony of the police officer. The presence of
the second appellant and her being apprehended by
the police officers, has been believed by both the
Courts and this is completely inconsistent with the
case set up by the appellants. In such
circumstances, we see no reason to interfere. The
appeal fails and stands dismissed.
…………………………………CJI.
(Ranjan Gogoi)
………………………………………J.
(K.M. Joseph)
New Delhi;
November 28, 2018
7

Sunday, November 18, 2018

Non existance of document can not be declared as void = Once it is held that no sale certificate issued in favour of respondent No.4 (Md. Sattar @ Mokhan) by the Custodian of Evacuee Property, under the 1950 Act is forthcoming nor any entry in the official register is found in that regard, all persons claiming through him (including the appellant) must suffer the consequences of such a finding of fact. Notably, respondent No.4 (Md. Sattar @ Mokhan) has not claimed right in respect 17 of the suit property in any other capacity, and in that view of the matter, we fail to understand as to how Md. Sattar @ Mokhan, or any person claiming through him, could be permitted to question the validity of the sale certificate dated 7th August, 1965 issued by the Managing Officer in favour of respondent No.3 (Mainmum Nissa @ Kumani). 13. The appellant had placed emphasis on the finding rendered in the civil suit filed by the husband of respondent No.3, for permanent injunction against respondent No.4 (Md. Sattar @ Mokhan). However, we agree with the concurrent view taken by the authority concerned that the said finding will be of no avail to the appellant. For, respondent No.3 was not impleaded as a party in the said suit. 14. Suffice it to observe that the appellant, having failed to produce the sale certificate in favour of respondent No.4 (Md. Sattar @ Mokhan) issued by the Custodian of Evacuee Property under the 1950 Act, he cannot be heard to raise the issue of jurisdiction of the Managing Officer to deal with the subject property, including the validity of the sale certificate 18 issued in favour of respondent No.3. A deeper enquiry as to how the Managing Officer assumed jurisdiction to issue the sale certificate in favour of respondent No.3 would become relevant and essential only if the appellant was able to substantiate the fact, at least prima facie, that the suit property was, in fact, transferred in favour of respondent No.4 (Md. Sattar @ Mokhan) by the Custodian of Evacuee Property under the 1950 Act.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 6384 OF 2010
Mahendra Pratap Dubey …..Appellant
:Versus:
Managing Officer, Evacuee Property & Ors. ....Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. This appeal takes exception to the judgment and order
dated 26th February, 2007 passed by the High Court of
Judicature at Allahabad in Civil Misc. Writ Petition No.30158
of 1995, whereby the writ petition filed by the appellant
challenging the decision of the Chief Settlement
Commissioner, Board of Revenue U.P. at Lucknow was
rejected. The Assistant Custodian/Managing Officer (Evacuee
2
Property), Board of Revenue, Lucknow had allowed the
application filed by respondent No.3 - Mainmum Nissa @
Kumani, W/o Subrati @ Algu, R/o Village Singramau, Tehsil
Shahganj, District Jaunpur, U.P., accepting her claim that she
was occupying the suit property as owner thereof, having
purchased the same at a public auction and in furtherance
whereof a certificate of sale came to be issued in her favour
and that respondent No.4 - Mohd. Sattar @ Mokhan (through
whom the appellant claims his right, title and interest in the
suit property) was causing obstruction to her possession in
the suit property on the basis of some fictitious sale certificate
dated 30th September, 1968.
2. Be it noted that the statutory authorities and the High
Court have concurrently found that Ram Abhilakh (through
whom the appellant claims to have acquired title in the suit
property), to whom notice was issued by the authority and
opportunity was given to produce the official record in his
possession to substantiate that he had acquired title in the
suit property pursuant to a transfer by the Custodian in
3
favour of Md. Sattar @ Mokhan, failed to do so. He avoided
filing any document. Further, there was no record or any entry
in the official register to show that any sale certificate was
issued in favour of Md. Sattar @ Mokhan by the concerned
department.
3. On the other hand, it has been concurrently held that
respondent No.3 had produced a certificate of sale dated 7th
August, 1965 in her favour issued by the competent authority
in reference to an auction conducted on 12th July, 1962, at
which she purchased the subject property. Further, there was
nothing to discredit the documents and the testimony of
respondent No.3 that she had acquired right, title and interest
in the suit property by virtue of a certificate of sale in her
favour. Such finding has been recorded by the first authority
vide judgment and order dated 4th May, 1985 and confirmed
by the Collector, District Jaunpur, by dismissing the appeal
preferred by the appellant bearing Case No.8/1984/522
decided on 7th October, 1988 and further upheld by the Chief
Settlement Commissioner, Board of Revenue, Lucknow, U.P.,
4
being the revisional authority, by dismissing the revision of the
appellant bearing Revision No.1(RR) No./1988-89) District
Jaunpur, decided on 5th August, 1995. The High Court,
therefore, declined to interfere in exercise of its writ
jurisdiction and dismissed the writ petition preferred by the
appellant vide impugned judgment and order.
4. The moot question agitated by the appellant before the
concerned authorities and up till the High Court, was that the
Managing Officer, appointed under the Displaced Persons
(Compensation and Rehabilitation) Act, 1954 had no
jurisdiction to determine the validity of a sale certificate
issued by the Custodian of Evacuee Property in exercise of the
powers conferred upon him under Section 10(2)(o) of the
Administration of Evacuee Property Act, 1950. This
contention, however, did not find favour with either the
authorities or the High Court in view of the findings of fact
recorded against the appellant. The appellant was neither able
to assail the concurrent findings of fact recorded by the
authorities before the High Court nor did he produce the
5
original sale certificate dated 30th November, 1968 purportedly
issued in favour of respondent No.4 (Md. Sattar @ Mokhan),
who had transferred the property to one Shri Vishwanath S/o
Kukhekahar who in turn transferred the same to Ram
Abhilakh S/o Parmananad, R/o Shahganj, District Jaunpur,
from whom the appellant claims to have acquired the same.
5. In the present appeal, the appellant has contended that if
an Indian citizen had left India to live in Pakistan, his property
would become an evacuee property as defined in Section 2(f) of
the 1950 Act; and whence the Custodian alone would have the
power under Section 10 of the 1950 Act to transfer such
property in the manner prescribed by the 1950 Act. Further,
such evacuee property could indeed be acquired under Section
12 of the Displaced Persons (Compensation and
Rehabilitation) Act, 1954 by the Central Government,
consequent to which the property would lose the status of an
evacuee property and the Custodian would be divested of its
power to deal with the same. That property would then become
a part of the compensation pool as envisaged under Section 14
6
of the 1954 Act and only thereafter, could the Managing
Officer assume control or authority over the same and dispose
it of in the manner specified under Section 20 of the 1954 Act.
On facts, it has been argued on behalf of the appellant that
respondent No.3 admits that the property is an evacuee
property and has not claimed that it is a compensation pool
property. For, in the suit filed by the husband of respondent
No.3 (Subrati), being suit No.520/1982, it was asserted that
the evacuee property has been auctioned off to respondent
No.3 by the Custodian; but in the subject application dated
30th April, 1982 field before the Managing Officer, respondent
No.3 claims that the suit property was purchased in an
auction and consideration amount was deposited in the office
of the Managing Officer and the sale certificate dated 7th
August, 1965 came to be issued in her favour by the Managing
Officer. Similarly, in the counter affidavit filed before this
Court, respondent No.3 had claimed that the property was
transferred to her by the Managing Officer. In substance, the
argument is that respondent No.3 has taken a contradictory
7
stand before different authorities and courts, which must
militate against her.
6. The contesting respondent, on the other hand, would
contend that regard being had to the concurrent finding of fact
recorded by the authorities concerned and also upheld by the
High Court, the sole issue raised by the appellant about the
jurisdiction of the Managing Officer does not merit any
interference. An abstract debate bereft of any proof produced
by the appellant to establish that the suit property was
transferred to respondent No.4 (Md. Sattar @ Mokhan) by the
Custodian in terms of sale certificate dated 30th November,
1968, does not merit examination. The question whether such
a sale certificate was issued and, in fact, exists, could certainly
be examined by the Managing Officer before whom the subject
application dated 30th April, 1982 was filed by respondent
No.3, by virtue of the enabling provision in Section 19 and the
bar of jurisdiction of the civil courts in terms of Section 36 of
1954 Act. In such an enquiry, all aspects were open including
to determine as to whether the sale certificate issued in favour
8
of respondent No.3 by the office of the Managing Officer, is
valid. It is submitted that all the authorities including the
High Court have concurrently found that the sale certificate
issued in favour of respondent No.3 in respect of suit property
dated 7th August, 1965 was genuine and valid. Furthermore, it
has been concurrently found against the appellant that
despite sufficient opportunity, his predecessor-in-title Ram
Abhilakh S/o Parmanand did not produce any document; nor
did respondent No.4 (Md. Sattar @ Mokhan), through whom he
(appellant) had claimed right, title and interest in the suit
property, produce the original transfer document issued by the
Custodian to prove the genuineness of the transaction and
further there was no record or any entry in the official register
evidencing that any sale certificate was issued in favour of
respondent No.4 (Md. Sattar @ Mokhan) by the department. In
that view of the matter, the question of law sought to be
agitated by the appellant about the authority of the Managing
Officer to decide the matter in issue concerning the sale
certificate issued by the Custodian of Evacuee Property under
9
the 1950 Act would be tenuous and the Court should not
enter upon that issue.
7. We have heard Mr. Anurag Dubey, learned counsel
appearing for the appellant and Ms. Meenakshi Kalra, learned
counsel appearing for the respondents.
8. Indisputably, the respondent No.3 had filed an
application before the Assistant Custodian/Managing Officer
(Evacuee Property), Board of Revenue, Lucknow, which
highlighted two aspects. First, that it be declared or directed
that she had acquired right, title and interest in the suit
property by virtue of the sale certificate dated 7th August, 1965
issued by the Managing Officer. Second, the claim of
respondent No.4 (Md. Sattar @ Mokhan) that the suit property
was transferred in his favour by virtue of a sale certificate
dated 30th November, 1968, issued by the Custodian is nonexistent
and not genuine.
9. Respondent No.3 in the subject application had asserted
that she had purchased the suit property at a public auction
10
held on 12th July, 1962; and after payment of the sale
consideration in the office of the Managing Officer, a certificate
of sale was issued in her favour on 7th August, 1965. To
buttress this submission, reliance has been placed by
respondent No.3 - Mainmum Nissa @ Kumani on (i) Receipt
issued by the Office of the Regional Settlement Commissioner,
U.P., accepting the consideration amount paid by her, (ii)
Acceptance Letter issued by the Assistant Custodian,
Government of India, dated 10th June, 1965, and (iii)
Certificate of Sale issued under the signature of the Managing
Officer, Varanasi. The said documents read thus:
“Annexure -R2
EVACUEE SIRAI
FORM NO.1
OFFICE OF THE REGIONAL SETTLEMENT COMMISSIONER
UTTAR PRADESH
Srl. No. 4209 Receipt No.30
Dated: 12.7.62
Received from Mst. Maimunnisha alias Kumman, 170/-
(Rupees One hundred seventy only) by cash on account of
rent / licence fee / licence money in respect of / as earnest
money for KacchaKhander house of Evacuee Sirai in Village
Sgramau, Teh. Shahganj, Jaunpur.
Previous Receipt No. Dated
Note: Where payment is made by cheque and the cheque is
dishonoured by the bank, the receipt will be rendered in
valid.
H/B (highest bid) 1700/-
11
Sd/ (illegible)
12.7.62
Jr. Accountant
Subject to the approval of higher authorities”
“Annexure R-3
Form No. IX
ACCEPTANCE LETTER
GOVERNMENT OF INDIA
MINISTER OF REHABILITATION
Office of the Assistant Custodian
District Varanasi
Dated: 10.6.1965
Smt. Maimun Nisha alias Kumman w/o Subrati alias
(illegible) Shahganj, Jaunpur.
Subject: Sale Kaccha House Khander,
Situated at: Sigramau, Shahganj, Jaunpur.
Evacuee: Sirai
You are hereby informed that you bid dated 12 July, 1962
for Rs. 1700/- for the above noted property, has been
accepted. You are further required to send by pot or to
produce before the undersigned a treasury challan for the
deposit of balance money of sale price amounting to
Rs.1530/-, under Central head “S-Deposits and Advances –
Part IV Suspense Accounts – P.A.O. Suspense – Transactions
Adjustable with Pay and Accounts Office, Rehabilitation
Delhi – Finally Adjustable by P.A.O. under the Head S –
Deposits and Advances – Part II Deposits not bearing
Interest – IVIL Deposits – Personal Deposits – Deposits on
Account of Un-acquired Evacuee Property”, within 15 days
from the date of issue of this letter.
Sd/-
(B.B. VERMA)
Assistant Custodian”
12
“Annexure R-4
GOVERNMENT OF INDIA
MINISTRY OF REHABILITATION
OFFICE OF THE MANAGING OFFICER
VARANASI
APPENDIX XXII
CERTIFICATE OF SALE
(Free Hold Property)
Rule 90(15)
Dated:7.8.1965
This is to certify that Smt. Maimun Nisha alias Kamman w/o
Subrati resident of Sigramau, Shahganj, Jaunpur having
given the highest bid at a sale by public auction held in
pursuance of the powers conferred upon me under Section
20 of the Displaced Persons (Compensation and
Rehabilitation) Act, 1954 (44 of 1954) on the 12th day of July
1962 of the properly described in the Schedule and his bid
having been accepted and the valid thereof having been paid
by him in cash/ by adjustment of compensation due on his
and his associates claims has been declared the purchaser of
the said property with effect from 25th day of June 1965.
Given under my hand and seal of my office this 26th June of
1965.
SCHEDULE
Kaccha House Khander EVACUEE
Sigramau, Evacuee Sirai Sale price 1700/-
Shahganj, Sirai
Jaunpur
East – House of Jokhu& Field
West – House of Gaya Dargai
North – Road
South – House of Dase
Sd/-
(B.B. Verma)
Managing Officer
Varanasi”
13
10. From the acceptance letter, it is noticeable that it has
been issued under the signature of one B.B. Verma, Assistant
Custodian and the same person issued a certificate of sale in
his capacity as Managing Officer. It must be kept in mind that
the application was moved by respondent No.3 and not by the
appellant or any of his stated predecessor(s)-in-title. In that
situation, the enquiry into the application ought to be limited
to the fact as to whether the documents relied upon by
respondent No.3 before the authority, to claim that she had
acquired right, title and interest in the suit property as a
consequence of issuance of certificate of sale, were genuine.
Neither the appellant nor his predecessor-in-title has
challenged the validity of the said official documents issued in
favour of respondent No.3 before the concerned authority or
otherwise. In the proceedings initiated by respondent No.3,
because of the stand taken by her that respondent No.4 (Md.
Sattar @ Mokhan) was also claiming right, title and interest in
the suit property by virtue of a sale certificate issued in his
favour by the Custodian, notices were issued by the competent 
14
authority to him as well as Vishwanath S/o Sukhi and Ram
Abhilakh S/o Parmanand to evoke their response. Despite
opportunity given by the competent authority, they failed to
produce any document, much less original documents,
evidencing that the Custodian had issued a sale certificate in
respect of the suit property in favour of respondent No.4 (Md.
Sattar @ Mokhan).
11. The appellant as well as respondent No.4 having failed to
produce any original document and since there was no record
or entry in the official register to show that such a sale
certificate was issued in favour of respondent No.4 (Md. Sattar
@ Mokhan) by the Department, as concurrently found by the
authorities, it must follow that their claim in respect of the
suit property remained unsubstantiated. In other words, the
appellant has not been able to establish any causal connection
with the suit property either on account of allotment of the
suit property to him or his predecessors, by the competent
authority or otherwise. The Assistant Custodian on analysing
the factual position in its judgment observed thus:
15
“I have gone through the file and found there is no such
documents have been filed by the objector whose
genuineness can be examined except the objection which
has been filed on behalf of O.P. Sri Ram Abhilakh stating
that this tribunal has got no jurisdiction to examine the
genuineness of sale certificate that which one is correct out
of these two documents.
In this regard I have to mention that this has been the
consistent view of the higher tribunal under the O.P. (C & P)
Act No. 44 of 1954, that in a case in which the nature of
each complaint is that some forged deeds have been reported
to have been issued by the Assistant Castodian/Managing
Officer the said officer can meet enquiries and can ask the
person concerned to produced the relevant papers to
examine their veracity find out if any such deed was at all
issued. In this connection a copy of order of Sri Prem Narain,
Settlement Commissioner (Judicial) passed on 11.10.76 in
appeal No.14/SC/PN/U/70,SriMohd. Shamim Vs. Managing
Officer, Lucknow was filed as an examper, in which it has
been held that the Managing Officer can certainly look into
the matter on receipt of complaint and can pass appropriate
order on that basis. Accordingly, the parties were directed to
produce relevant papers, the applicant Smt. MaimunNissa
filed the original & photo copy of receipt of earnest money,
acceptance letter dt. 10.6.65 and the sale certificate dt.
7.7.65 referred to above, and supported her contention on
affidavit. Sri Ram Abhilekh did not produce any document
and also did not produce Sri Mohd. Satar @ Mohkan the
alleged original transferred from the custodian to prove the
genuineness of the transaction. On the other hand the
evaded to file the documentation the plea that the same
cannot be looked into by the tribunal; which as stated above
can always be looked in this circumstances of the case.
In the absence of any papers or evidence of Sri Ram
Abilekh the matter was examined with the available
records.
The connected file shows that first the house was put to
sale on 16.3.62 when the bid of Smt. Amina was the
highest for Rs.1210/- and an amount of Rs.121/- was
deposited but subsequently for non deposit the balance
16
money the sale was cancelled and the earnest money
deposited was forfeited.
It further seems from the documents filed that the house
was put to sale on 12.7.82 and it was knocked down in
favour of MaimunNissa, who deposited Rs.170/- as
earnest money and on receipt of acceptance letter
dt.10.6….. she deposited the balance sale consideration
money on 26.6.65 and thereafter the certificate of sale
was issued in her favour on 7.7.65 by Sri B.B. Verma,
Managing Officer, Varanasi. I have seen the original
documents. There is nothing to discredit the said
documents and the testimony of Smt. MaimumNissa.
There is no record in the office or any entry in the office
register to show that any Sale Certificate was issued in
favour of Mohd. Sattar @ Mohkan by this department.
The sale certificate issued in favour of Smt.
MaimunNissa is accordingly held valid.”
(emphasis supplied)
12. This finding of fact and conclusion came to be affirmed
by the Appellate Authority as well as the Revisional Authority
for which reason the High Court declined to interfere. Once it
is held that no sale certificate issued in favour of respondent
No.4 (Md. Sattar @ Mokhan) by the Custodian of Evacuee
Property, under the 1950 Act is forthcoming nor any entry in
the official register is found in that regard, all persons claiming
through him (including the appellant) must suffer the
consequences of such a finding of fact. Notably, respondent
No.4 (Md. Sattar @ Mokhan) has not claimed right in respect 
17
of the suit property in any other capacity, and in that view of
the matter, we fail to understand as to how Md. Sattar @
Mokhan, or any person claiming through him, could be
permitted to question the validity of the sale certificate dated
7th August, 1965 issued by the Managing Officer in favour of
respondent No.3 (Mainmum Nissa @ Kumani).
13. The appellant had placed emphasis on the finding
rendered in the civil suit filed by the husband of respondent
No.3, for permanent injunction against respondent No.4 (Md.
Sattar @ Mokhan). However, we agree with the concurrent
view taken by the authority concerned that the said finding
will be of no avail to the appellant. For, respondent No.3 was
not impleaded as a party in the said suit.
14. Suffice it to observe that the appellant, having failed to
produce the sale certificate in favour of respondent No.4 (Md.
Sattar @ Mokhan) issued by the Custodian of Evacuee
Property under the 1950 Act, he cannot be heard to raise the
issue of jurisdiction of the Managing Officer to deal with the
subject property, including the validity of the sale certificate 
18
issued in favour of respondent No.3. A deeper enquiry as to
how the Managing Officer assumed jurisdiction to issue the
sale certificate in favour of respondent No.3 would become
relevant and essential only if the appellant was able to
substantiate the fact, at least prima facie, that the suit
property was, in fact, transferred in favour of respondent No.4
(Md. Sattar @ Mokhan) by the Custodian of Evacuee Property
under the 1950 Act. Accordingly, this appeal must fail.
15. In view of above, the appeal is dismissed with costs.
…………………………..….J.
 (A.M. Khanwilkar)
…………………………..….J.
 (Dr. D.Y. Chandrachud)
New Delhi;
November 16, 2018.

We fail to understand as to how this communication can be used as an admission of the defendants much less of having accepted the title of the plaintiff trust in the suit House No.878 (renumbered as House No.152), in Circle No.3. On the other hand, it is a representation made to assail the unilateral 38 alteration of mutation entry in favour of Shri Hanuman Deosthan Trust in violation of principles natural justice. 32. Suffice it to observe that even the second substantial question of law must be answered against the plaintiffs and in favour of the defendants/appellants.

1
REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO.7789 OF 2011
Vijay Pullarwar & Ors. …..Appellant(s)
:Versus:
Shri Hanuman Deostan, a Public Trust
through its Trustees ....Respondent(s)
J U D G M E N T
A.M. Khanwilkar, J.
1. This appeal is filed by the original defendants against the
judgment and order of the High Court of Judicature at
Bombay, Nagpur Bench in Second Appeal No.364 of 1990
decided on 24th October, 2008, whereby the High Court, in the
second appeal, restored the decree of possession of the suit
property passed by the trial court against the appellants, by
setting aside the judgment and decree passed by the District
2
Court, Nagpur in Regular Civil Appeal No.564 of 1983 dated
21st January, 1989.
2. The respondent No.1, Shri Hanuman Deosthan, is a
public trust duly registered under the provisions of the
Bombay Public Trusts Act, 1950 (presently known as
Maharashtra Public Trusts Act, 1950) (for short “1950 Act”).
The respondents filed Special Civil Suit No.1127 of 1978 in the
Civil Court, Senior Division, Nagpur, for possession on the
basis of title. It was asserted that one Bansilal S/o Gangadin
Perdeshi Teli, R/o Circle No.3 of Nagpur was the disciple of a
Hindu saint by the name of Haridas Baba Vishv. The said
saint took Samadhi about 70 years back before the institution
of the suit. He had a “Math” situated in Circle No.3 in house
bearing No.878, where his (Haridas Baba) Padukas came to be
installed. It is stated that the said Bansilal was the Chief
Wahiwatdar of the said Math and was looking after the pujas
and utsavas performed in the Math. Before his death, which
occurred in 1944, he had asked his wife, Yashodabai, to look
after and manage the Math and conduct puja and utsavas
3
from time to time in his absence and keep the Math property
in good condition from the income of the Math. He had also
told his wife Yashodabai that after his death, she may appoint
a panch committee in the event she was not in a position to
look after the affairs of the Math herself. After 1946,
Yashodabai executed a document and appointed a panch
committee for the proper management of the Math whilst she
remained one of the trustees. That document was registered
on 23rd May, 1946 (Exh.41). She had nominated five persons
as panchas in the panch committee namely, Shri Badal S/o
Giridharilal, Mohanlal Hanuman, Ramjiwan Kaluram,
Nandideep Bhangavandin and Onkar Gandelal Pardeshi.
Amongst them, Badal was to remain as sarpanch. After his
demise, one Chotelal Bhikaji Pardeshi assumed the office of
Sarpanch.
3. It was further stated that except Ramjiwan Kaluram, all
the trustees/panchas had expired by the time the suit was
filed. Further, Chotelal Bhikaji Pardeshi, after taking over as
sarpanch, made an application on 31st August, 1953 (Ex.63) to
4
the appropriate authority for registration as a public trust
under the provisions of the Madhya Pradesh Public Trust Act.
In that application, the description of the property of the trust
was given as per the schedule to the plaint, which property
was amongst other properties registered as the property of the
public trust. After the provisions of the Bombay Public Trust
Act, 1950 (Exh.64 dated 13th September, 1961) became
applicable to the Vidarbha region of the State of Maharashtra,
Chotelal got the trust registered under the 1950 Act, bearing
P.T.R. No.A-50(N).
4. It is then stated that after the death of Chotelal Bhikaji
Pardeshi, a change report was submitted to the local office of
the public trust at Nagpur which came to be rejected as no
proper succession was documented. Resultantly, the local
persons having interest in the affairs of the Math preferred an
application for framing of a scheme and appointment of
trustees, being application No.71 of 1971. The Deputy Charity
Commissioner, in exercise of powers under Section 50-A of the
1950 Act framed a scheme and appointed four persons as
5
trustees of Shri Hanuman Deosthan, namely, Bhayyalal
Giridharilal, Kashiram Fakiraji Potbhare, Laxman Zingaraji
Sapate, Navi Shukravari and Narayan Tanbaji Kurkute vide
order dated 4th April, 1975 (Exh.46). In short, the respondent
asserted that the suit property occupied by the predecessor of
the appellants, namely Wasudeo Pullarwar, was the property
of the presiding deity Shri Hanuman Deosthan and was
managed by the trustees in whom it vested for management.
The occupant, Vasant Pullarwar, had no right, title or interest
in the said house.
5. It is then stated that a notice was issued to defendant
No.2/appellant No.1 (son of defendant No.1, the said Wasudeo
Pullarwar), dated 4th November, 1977, calling upon him to pay
the rent for the last three years ending October 1977 @
Rs.110/- per month, which rent was recovered by the previous
trustees from the occupants of the suit house. Appellant No.1
sent a reply on 14th November, 1977, disputing that he was a
tenant or that he was liable to pay the rent to the respondent
trust. He stated that he was living with his father who was
6
paying the taxes of the suit house. It appears that the
plaintiffs/respondents then caused to send another notice to
defendant No.1 Wasudeo Pullarwar dated 12th December,
1977, making a similar demand of rent from him, to which
even he denied his liability to pay and also denied the title of
the plaintiffs/respondents in respect of the suit house
occupied by him. In this backdrop, the respondents filed a suit
on 17th October, 1978 for possession of the suit house from
the defendants/appellants and for recovery of charges for
occupation of the suit house during the relevant period. The
suit for possession is thus based on title.
6. The appellants contested the suit by filing their written
statement asserting that the plaintiffs/respondents have no
locus to institute the suit; and the suit was not maintainable
due to absence of permission of the Charity Commissioner for
filing suit for possession of immoveable property allegedly
belonging to a public trust. It was denied that Bansilal was the
Wahiwatdar and was looking after the pujas and utsavas
performed in the Math. It was then contended that the
7
document allegedly executed by Smt. Yashodabai on 23rd May,
1946 (Exh.41) was a sham and bogus document; and that one
of the panchas - Ramjiwan Kaluram, was still alive, for which
reason Chotelal could not claim to be an elected or nominated
Sarpanch. Pertinently, it has been plainly stated in the written
statement that the suit house occupied by the defendants was
not the property shown at the time of registration of Shri
Hanuman Deosthan, a public trust, and also, the same was
not registered as the property of the said trust. The said trust
was registered as a public trust with only two properties
mentioned in schedule I thereof. One of the house properties
in Circle No.3 was House No.55, which has had no causal
connection with the suit house occupied by the
defendants/appellants, bearing House No.878.
7. It is thus denied that the suit house is the property of the
presiding deity of Shri Hanuman Deosthan. It is plainly
asserted by the defendants/appellants that the suit house has
been continuously and uninterruptedly occupied by them for
over 30 years and the defendant No.1 was looking after and
8
managing the same, including carrying out repairs and
renovation, performing pujas and utasavas in the suit house
as Wahiwatdar of the property and paying municipal taxes. It
is the case of the appellants that the suit house was the
property of a private trust and it originally belonged to saint
Haridas Baba. Defendant No.1 was in possession of and had
been the occupant of the property for over 30 years before the
institution of the suit, as the Wahiwatdar. The appellants
asserted that the respondent Trust was not the owner of the
suit house and it had no causal connection therewith and in
any case, could not oust the appellants/defendants from the
suit house under the garb of a scheme framed on 4th April,
1975 by the Deputy Commissioner (Exh.46). Accordingly, the
appellants prayed that the suit ought to be dismissed with
costs.
8. We may usefully reproduce paragraph 11 of the written
statement which succinctly unveil the case of the appellants
about their right to occupy the “suit house” (i.e. H.No.878 in
Circle No.3) and to reject the claim of the
9
plaintiffs/respondents concerning the suit house or having
any causal connection therewith leave apart having acquired
any title in terms of the scheme framed for the public trust.
9. We deem it necessary to reproduce the whole of
paragraph 11 of the written statement. For, the High Court
has decided the matters in issue against the
defendants/appellants only by referring to sub-paras (b), (c)
and (d) thereof, as reproduced in paragraph 9 of the impugned
judgment. Paragraph 11 reads thus:
“11. Paragraph
(b) Haridas was a great saint of his times. He died about 55
years ago. He took Samadhi. The suit house (Kuti) belonged
to Haridas which was not a Math, Padukas of Haridas were
not installed by Bansilal.
(c) The suit house was bearing House No.143 and then it was
changed as House No.492 and again this was changed as
House No.104 in Cir. No.3, Nagpur. Owner of the suit house
was Haridas Bairagi, the saint.
(d) In this suit house Padukas of Haridas are installed. The
plaintiff‟s allegation that Bansilal was the Chief Wahiwatdar
are denied. The puja and uttaav of the Padukas of Haridas
used to be done by some disciples.
(e) It is emphatically denied that the suit house was or is a
Math. It is denied that Bansilal, yashodabai, Chhotelal,
alleged Sarpanch or the alleged Panch names in the alleged
Deed dated 3.5.1946 or the plaintiffs 1 to 5 were or are
trustees. These above persons had or have no connection
10
with the suit house or Padukas. The alleged Deed, if any,
dated 3.5.1946 is null, void, illegal and invalid.
(f) The suit house in circle No.3 at Nagpur and after it
touching to it, is a public tar-road passing north-south and
its breadth is about 50 feet east-west, from the suit house.
There are many houses to the north of the suit house upto
Fuwara Chowk, From Chowk, another tar-road which is in
east-west direction passes to the west and after about 500
feet distance in separate locality of Cir. No.2 is a Hanuman
Temple which has no connection to the suit house in Cir.
No.3 Nagpur. Both are different localities.
(g) It is denied that the defendants occupied the suit house
about 12 years back as tenants from from former trustees or
paid rent, as alleged. It is denied that the defendant occupied
the suit house with any alleged permission of any alleged
former trustee on rent of Rs.110/- per month. The
defendants are occupying the suit house as of right and are
in continuous possession for more than 30 years as stated
earlier openly, exclusively, peacefully peaceably, without
interruption or disturbance from any one or from any alleged
trustees and none of them have been in possession during
such period. The defendant No.1 is about 83 years old.
Defendants are „Pullarwar‟. The suit house is not property of
the plaintiff nor a public Trust property as is alleged. All the
alleged Public Trust proceedings of whatever nature were
without jurisdiction, null and void, under which the
plaintiffs are trying to lay a claim to the suit house. There
was no house No.55 alleged to the suit house; nor this was
changed as House No.878. the plaintiffs‟ alleged claim for the
suit house does not stand in fact or law as contended. In
none of the alleged proceedings the defendants were made
parties, nor noticed.”
In view of the rival pleadings, the Trial Court framed in all 11
issues, which read thus:
“1) Do the plaintiffs prove the title of plaintiff No.1 to the
suit house?
2) Do they prove that the deft. No.2 was occupying the
same as a tenant?
11
3) Are the plffs. entitled to the occupation charges at the
rate of Rs.110/-p.m.?
4) Whether the Charity Commissioner has declared that
the suit house is trust property?
5) Does the deft. No.1 prove that he is occupying the suit
house for more than 30 years and perfect his title by
adverse Possession?
6) Do the defts. Prove that the house belongs to
Mahadeo Domaji Kuthe?
7) Are the plffs. entitled to the possession?
8) What order and decree?
Additional Issues:
9) Whether the house in suit was a Math?
10) Whether the document dated 3.5.46 is
 null and void
11) Whether the proceedings under the Bombay Public
trust Act are without jurisdiction?”
10. Both sides produced documentary as well as oral
evidence in support of their respective stands, which was duly
considered by the Trial Court vide judgment and order dated
16th November, 1983. The Trial Court accepted the claim of the
plaintiffs/respondents that the “suit house” (i.e. H.No.878)
was the property of the public trust, namely, Shri Hanuman
Deosthan and the management of the property vested in the
said trust. Further, the defendants/appellants had no right to
occupy the suit house despite the Trial Court having found
that they were occupying the same for over 30 years before the
institution of the suit. On this finding, the Trial Court partly
12
decreed the suit by directing the defendants/appellants to
hand over vacant possession of the suit house to the
plaintiffs/respondents, while rejecting their claim for
occupation charges. The operative order passed by the Trial
Court reads thus:
“ORDER
The Plaintiff‟s suit is decreed partly with proportionate costs.
The defendants shall deliver vacant possession of the suit
premises to the plaintiff.
The Plaintiffs claim for occupation charges is dismissed.
An inquiry for future mesne profits under order 20, rule 12
Civil Procedure Code shall be carried separately.
Decree be drawn accordingly in terms of the above order.”
11. The appellants being aggrieved, filed Regular Civil Appeal
No.564 of 1983 before the District Court at Nagpur. The
District Court, after re-appreciating the oral and documentary
evidence, was pleased to reverse the finding of facts recorded
by the Trial Court and instead, concluded that the “suit
house” (i.e. H.No.878) was not the registered property of Shri
Hanuman Deosthan, a public trust duly registered under the
1950 Act.
13
12. The First Appellate Court considered the efficacy of the
oral evidence adduced by the plaintiffs/respondents to
establish its title in the suit house as also the documentary
evidence. As regards the oral evidence, it found that the same
was hopelessly poor and of persons who had no knowledge as
to how Shri Hanuman Deosthan trust was constituted.
Similarly, these persons had no knowledge whatsoever about
saint Haridas Baba whose Padukas had been installed in the
suit house. The person who could have spoken about those
matters, namely Ramjiwan Kaluram, though available at the
relevant time, was not examined as a witness, for reasons best
known to the plaintiffs/respondents. While dissecting the
documentary evidence relied upon by the parties in support of
their claim, the appellate court in paragraphs 10 to 12
observed thus:
“10. Even if for the sake of argument, Exh.41 is
admitted in evidence and presumed that such a
document was executed by Yashodabai, this document
does not support the Plaintiffs. I will point out the help
of other documents to show that this particular
document Exh.41 pertains to the suit property but this
suit property was never treated as property of the
Plaintiff Trust since 1953 till this litigation started.
14
11.Exh.63 is the certified copy of the application, dated 31st
August, 1953 filed by Chhotelal before the Registrar of the
Public Trusts for registration as per order below Exh.42. In
this application Chhotelal had shown two temple and a
house No.374 and a house No.369 of Circle No.2 and one
house No.55 of Circle No.3 as the property of the said trust
and this property was recorded in the register of the property
of the Public Trust maintained under the M.P. Public Trust
Act. Exh.64 is application dated 13th September, 1961 filed
by Chhotelal for change report. In this also the same
property has been shown as property of the said trust. After
death of Chhotelal an application was made to the Deputy
Charity Commissioner for framing a scheme for the
management of the trust. After holding enquiry the learned
Deputy Charity Commissioner passed an order, dated 4th
April, 1975 framing a scheme Exh.46 is a certified copy of
that order. Annexure A to this order shows the property of
the trust in the register of the Deputy Charity Commissioner.
It means the two houses in Circle No.2 and a house No.55 of
Circle No.3 were the only properties of the trust even in 1975
when the scheme for management of the trust was framed
and when the present trustees were appointed.
12. The Defendants have throughout maintained that the
plaintiff Trust has nothing to do with a suit house bearing
Municipal No.152 situated in Circle No.3. In support of this,
they have produced documents Exhs.56, 57 and 58 which
are the certified copies of the relevant entries in the
assessment register of the Municipal Corporation. I am told
that the document Exh.56 was in more than one page but in
the original record there appears only one page of the
Assessment Register and it is incomplete. Therefore, today
the Defendants have produced another certified copy of the
same record and it is Exh.20. This record goes back to 1910-
11. It appears that originally the house of Haridas Bairagi
was given Municipal No.443. It was situated in Circle No.3 In
1914-15 house number was changed to 492. In 1922-23 it
was given house No.104. In 1947 to 1950 its house number
was 878. In 1957-58 it was house No.598 and it continued
to be house No.598 till it was changed to 521 in 1973-74
and it continued to be house No.152 till the institution of the
present suit. From this record it would be clear that during
1947 to 1950 its house number was 878. Exh.41 the
document purporting to have been executed by Yashodabai
also shows that the document was executed pertaining the
house No.878 belonging to Haridas Baba. As per this record,
15
number of this house continued to be 878 till 1957-58 when
the number was changed to 598, while in 1953 and again in
1961. Chhotelal had shown house No.55 of Circle No.3 as a
property of Hanuman Deosthan. In this suit we are not
concerned with the other properties of Hanuman Deosthan
situated in Circle No.2 Exh.57 and 58 is the record
pertaining house No.55 of Circle No.3. this record shows that
house No.55 of Circle No.3 was the property of temple of
Radhakishna and Ganpati and on behalf of that Temple one
Ramlal Munnalal Halwai was shown to be proprietor. This
record is available from 1947 onwards. This particular
property bears house No.55 from 1947 till 1961-62. From
this it is clear that the house No.55 of Circle No.3 is
totally different from the suit house which was the
property of Haridas Bairagi. It is fairly conceded before
me by Mr. Ghatpnde that temple of Radhakrishna and
Ganpati may be different institution than the property of
Haridas Baba. In 1952 when for the first time Hanuman
Deosthan was registered as trust on application of
Chhotelal, house No.55 was different from the suit house
which was bearing No.878 at that time. It is conceded
that there is no documentary evidence to establish that
the suit house was the property of the Plaintiff Trust.”
(emphasis supplied)
13. The aforesaid view taken by the First Appellate Court
and, in particular, the findings of fact recorded on material
issues came to be reversed by the High Court in the second
appeal, filed by the respondents. Initially, the said Second
Appeal No.364 of 1990, was allowed by the High Court of
Judicature at Bombay at Nagpur, without framing any
substantial question of law, vide judgment and order dated
29th March, 2004. That judgment was set aside by this Court
on 17th December, 2004 in SLP (C) No.10181/2004, at the
16
instance of the defendants/appellants. The parties were
relegated to the High Court for fresh consideration of the
second appeal. The learned Single Judge of the High Court
hearing the remanded appeal adverted to two substantial
questions of law as formulated in paragraph 7 of the
impugned judgment, which read as follows:
"1. Whether the findings recorded by the authorities
under the Bombay Public Trusts Act about the existence
of the trust and the trust property were final and
conclusive and/or whether the appellate Court had
justification to hold that the suit property did not belong
to the trust?
2. Whether the admission of the defendants that the suit
property was originally owned by Haridad Baba and that
they had entered in possession thereof in the capacity of
caretaker of the suit property were binding on the
defendants so as to establish that the property in
question was part of the property originally owned by
Haridas Baba with respect to which the public trust was
created?”
14. By the impugned judgment and order dated 24th October,
2008, the High Court allowed the second appeal preferred by
the plaintiffs/respondents and restored the decree of
possession passed by the Trial Court. The High Court first
analysed the pleadings and noted that the
defendants/appellants in no uncertain terms admitted that
17
saint Haridas Baba is the owner of the suit house and that his
Padukas were installed in the suit house and were worshiped
by his disciples. It then found that it was common ground that
Haridas Baba was the original owner of the suit house and his
disciples were taking care of the Math after his death. The
High Court further noted that Bansilal never claimed to be the
owner of the suit house but only a trustee, who directed Smt.
Yashodabai to appoint a panch committee to look after the
affairs of the Math if need be. The panch committee appointed
by Smt. Yashodabai was nothing but a board of trustees, as
was evident from the document creating the panch committee
dated 23rd May, 1946 (Exh.41).
15. The High Court then noted that the defendants‟ witness
DW-1 Vijay in his evidence admitted that the ownership of the
suit house was of Haridas Baba and that the
defendants/appellants, along with other family members, were
living therein as disciples of Haridas Baba and did not set up
title in themselves at all. It appears that Haridas Baba, who
was the owner of the suit house, dedicated the property and
18
created a private trust, which fact has been admitted by the
defendants/appellants in the written statement. On that basis,
the High Court went on to conclude that the
defendants/appellants admitted that the suit house was a
trust property and therefore, it must be assumed to have been
dedicated by Haridas Baba. After having said this, the High
Court then went on to examine the question as to whether the
suit house was a property belonging to Shri Hanuman
Deosthan, a public trust. While considering this issue, the
High Court took note of the fact that the registered property of
the Hanuman Deosthan public trust did not include the
description of the suit house namely House No.878 in Circle
No.3. The suit house belonging to the public trust was
registered as House No.55 in Circle No.3. The High Court
“assumed” this to be a case of mis-description of the trust
property in the register of the public trust. Accordingly, the
finding of fact recorded by the First Appellate Court on
material issues came to be reversed by the High Court on the
following reasoning:
19
“13. We have already seen that defendants do not deny the
description of the suit property. They do not say that they
are in possession of any other property than the suit
property. They admit that suit property was owned by
Haridas. I have already quoted the evidence of D.W.1 Vijay in
verbatim in which he admits that the assessment list Exh.56
is in respect of the suit house. Exh.56 shows that house was
recorded in the name of Haridas. In examination-in-chief
Vijay admits that the house number of the suit property is
492. Defendant No.1 had made an application to the
Municipal Council vide Exh.75. He raised an objection to
recording the name of Hanuman Deosthan as owner in the
Municipal records. He claimed that he was the Wahiwatdar
and was paying taxes and also brought to the notice of the
Municipal Council that this house is not entered in the
register of public trust. He also alleges that name of the trust
is changed from Haridas to Hanuman Deosthan and that the
old name be retained. This clearly goes to show that
defendants in fact knew that the suit house belongs to
Hanuman Deosthan Trust. It is registered in the Municipal
Record as such and he wanted that name of the Hanuman
Deosthan be removed and that he was ready to pay the
taxes. All this evidence clearly goes to show that the
defendants know that the suit property is entered in the
name of plaintiff trust and they are claiming possession of
that property alone. With this document there is no manner
of doubt that the suit property is owned by the plaintiff
public trust. Defendants admission must bind them. The
learned Judge of the first appellate Court did not consider
the evidence in proper perspective. He erred in negativing the
claim of plaintiff because the correct description of the suit
property is not given in the trust register. He should have
independently considered if the suit property is owned by
plaintiffs.”
16. The High Court then negatived the preliminary objection
that the entire appeal had abated as the legal representatives
of legal representative Nos. 1 and 2 of the deceased defendant
No.1 were not brought on record. The High Court took the view
20
that since the stand of the defendant No.1 was that he was
occupying the suit house only as Wahiwatdar, his rights as
Wahiwatdar ended upon his death. For, the right of
Wahiwatdar could not be claimed as hereditary. The High
Court thus concluded that the appeal filed by the
plaintiffs/respondents could still proceed on the aforesaid
basis. Accordingly, the High Court reversed the decision of the
First Appellate Court and restored the decree passed by the
Trial Court for delivery of possession of the suit house by the
defendants/appellants to the plaintiffs/respondents. This
decision is the subject matter of the challenge in the present
appeal.
17. We have heard Mr. Gagan Sanghi, learned counsel
appearing for the appellants and Mr. D.K. Sinha, learned
counsel appearing for the respondents.
18. The moot question is: whether the High Court exceeded
its jurisdiction under Section 100 of the Code of Civil
Procedure in reversing the judgment and decree passed by the
First Appellate Court on the basis of independent findings and
21
reasons recorded by it, and moreso, not specifically answering
the substantial questions of law formulated for its
consideration. If it were to answer the substantial questions of
law in seriatim, perhaps the conclusion would have been
completely different.
19. Reverting to the first substantial question of law, the
factum of existence of the trust and the trust property is a
matter of enquiry for registration envisaged under Section 19
of the 1950 Act, which reads thus:
“19. Inquiry for registration :
On the receipt of an application under section 18, or upon
on application made by any person having interest in a
public trust or on his own motion, the Deputy or Assistant
Charity Commissioner shall make an inquiry in the
prescribed manner for the purpose of ascertaining:
(i) whether a trust exists and whether such trust is a
public trust,
(ii) whether any property is the property of such trust,
(iii) whether the whole or any substantial portion of the
subject matter of the trust is situate within his
jurisdiction,
(iv) the names and addresses of the trustees and manager
of such trust,
(v) the mode of succession to the office of the trustee of
such trust,
(vi) the origin, nature and object of such trust,
(vii) the amount of gross average annual income and
expenditure of such trust, and
(viii) any other particulars as may be prescribed under subsection
5 of section 18.”
(emphasis supplied)
22
20. Clause (i) of Section 19 is about an enquiry of a fact as to
whether a trust exists and whether such trust is a public
trust. Clause (ii) is an enquiry about whether any (stated)
property is the property of such trust. On completion of such
enquiry, the competent authority is required to record its
findings with the reasons therefor, in terms of Section 20 of
the 1950 Act. After complying with the prescribed formalities
by the applicant and upon the findings so recorded during the
enquiry becoming final, the said authority is obliged to make
entries in the register kept for that purpose as per Section
21(1) of the 1950 Act. Such entries become final and
conclusive, subject to any change to be recorded. This is
predicated under Section 21(2) of the 1950 Act. Further,
Section 79 of the same Act may be of some relevance. The
same reads thus:-
“79. Decision of property as Public trust property
(1) Any question, whether or not a trust exists and
such trust is a public trust or particular property is the
property of such trust, shall be decided by the Deputy or
Assistant Charity Commissioner on the Charity
Commissioner in appeal as provided by this Act.
(2) The decision of the Deputy or Assistant Charity
Commissioner or the Charity Commissioner in appeal, as
the case may be, shall, unless set aside by the decision
of the Court on application or of the High Court in
appeal be final and conclusive.”
23
(emphasis supplied)
This Court in Church of North India Vs. Lavajibhai
Ratanjibhai and Others1 has noted that the 1950 Act
provides for finality and conclusiveness of the order passed by
the Charity Commissioner in Sections 21(2), 22(3), 26, 36,
41(2), 51(4) and 79(2). The Court relying on Dhulabhai and
Others Vs. The State of Madhya Pradesh and Another2
expounded that such finality clause would lead to a
conclusion that the civil court‟s jurisdiction is excluded if
there is adequate remedy to do what the civil courts would
normally do in a civil suit. The Court also held that the
question as regards existence of a trust is a matter which
squarely falls within the purview of the Act.
21. Furthermore, Section 80 of the 1950 Act posits a bar of
jurisdiction of the civil court to decide or deal with any
question which by or under the Act is to be decided or dealt
with under the said Act. Section 80 of 1950 Act, reads thus:

1 (2005) 10 SCC 760
2 (1968) 3 SCR 662
24
“80. Bar of jurisdiction :
Save as expressly provided in this Act, no Civil Court shall
have jurisdiction to decide or deal with any question which
is by or under this Act to be decided or dealt with by any
officer or authority under this Act, and in respect of which
the decision or order of such officer or authority has been
made final and conclusive.”
22. Even for filing a suit concerning the public trust, Section
50 of the Act provides as under:
“50. Suit by or against or relating to public trusts or
trustees or others
In any case, -
(i) where is alleged that there is a breach of a public
trust, negligence, misapplication or misconduct on the
part of a trustee or trustees,
(ii) where a direction or decree is required to recover
the possession of or to follow a property belonging
or alleged to be belonging to a public trust or the
proceeds thereof or for an account of such property
or proceeds from a trustee, ex-trustee, alienee,
trespasser or any other person including a person
holding adversely to the public trust but not a
tenant or licensee,
(iii) Where the direction of the Court is deemed necessary
for the administration of any public trust, or 53
(iv) for any declaration or injunction in favour of or
against a public trust or trustee or trustees or
beneficiary thereof,
the Charity Commissioner after making such enquiry as he
thinks necessary, or two or more persons having an interest
in case the suit is under sub clauses ( i) to (iii) , or one
or more such persons in case the suit is under sub clause
(iv) having obtained the consent in writing of the Charity
Commissioner as provided in section 51 may institute a suit
whether contentious or not in the Court within the local
limits of whose jurisdiction the whole or part of the subject
25
matter of the trust is situate, to obtain a decree for any of
the following relief‟s :
(a) an order for the recovery of the
possession of such property or proceeds
thereof;
(b) the removal of any trustee or manager;
I the appointment of a new trustee or manager;
(d) vesting any property in a trustee;
(e) a direction for taking accounts and making
certain enquiries;
(f) an order directing the trustees or others to
pay to the trust the loss caused to the same by
their breach of trust, negligence, misapplication,
misconduct or willful default;
(g) a declaration as to what proportion of the
trust property or of the interest therein shall be
allocated to any particular object of the trust;
(h) a direction to apply the trust property or
its income cy pres on the lines of section 56 if
this relief is 54 claimed along with any other
relief mentioned in this section;
( I ) a direction authorising the whole or any part
of the trust property to be let, sold, mortgaged
or exchanged or in any manner alienated on
such terms and conditions as the court may
deem necessary;
(j) the settlement of scheme, or variation or
alteration in a scheme already settled,
(k) an order for amalgamation of two or more
trusts by framing a common scheme for the
same;
(l) an order for winding up of any trust and
applying the funds for other charitable
purposes;
(m) an order for handing over of one trust to the
trustees of some other trust and deregistering
such trust;
(n) an order exonerating the trustees from
technical breaches, etc;
(o) an order varying , altering, amending or
superseding any instrument of trust;
(p) declaring or denying any right in favour of
or against, a public trust or trustee or trustees
or beneficiary thereof an issuing injunctions in
appropriate cases; or
26
(q) granting any other relief as the nature of the
case may require which would be a condition
precedent to or consequential to any of the
aforesaid relief‟s or is necessary in the interest
of the trust:
Provided that no suit claiming any of the reliefs
specified in this section shall be instituted in respect of
any public trust, except in conformity with the
provisions thereof;
Provided further that, the Charity Commissioner may
instead of instituting a suit make an application to the Court
for a variation or alteration in a scheme already settled :
Provided also that, the provisions of this section and other
consequential provisions shall apply to all public trusts,
whether registered or not or exempted from the provisions of
this Act under subsection (4) of section 1.”
(emphasis supplied)
And again Section 51 provides as under:
“51. Consent of Charity Commissioner for institution of suit
(1) If the persons having an interest in any public trust
intend to file a suit of the nature specified in section 50, they shall
apply to the Charity Commissioner in writing for his consent. If the
Charity Commissioner after hearing the parties and making such
enquiries (if any) as he thinks fit is satisfied that there is a prima
facie case, he may within a period of six months from the date on
which the application is made, grant or refuse his consent to the
institution of such suit. The order of the Charity Commissioner
refusing his consent shall be in writing and shall state the reasons
for the refusal.
(2) If the Charity Commissioner refuses his consent to the
institution of the suit under sub-section (1) the persons applying
for such consent may file an appeal to the Division Commissioner
in the manner provided by this Act.
(3) In every suit filed by persons having interest in any trust
under section 50, the Charity Commissioner shall be a necessary
party.
27
(4) Subject to the decision of the Divisional
Commissioner in appeal under section 71, the decision of the
Charity Commissioner under sub section (1) shall be final and
conclusive.”
(emphasis supplied)
Indubitably, the present suit is a suit for recovery of
possession of the subject property on the basis of title claimed
therein by the plaintiffs/respondents and being a property of
the trust. However, the procedure envisaged under Sections 50
and 51, obviously, has not been complied with. For, such
permission has not been produced nor adverted to by the
courts below.
23. Be that as it may, as the plaintiffs/respondents have
claimed title in the suit property, that claim could be answered
on the basis of the registration application of the trust, and
schedule I regarding the registered properties of the trust.
Whether the property is a property of the trust and including
the question as to whether it should be so recorded as the
property of the trust, is a matter exclusively within the domain
of the Charity Commissioner.
28
24. In the present case, the registration application preferred
by Chotelal unambiguously records House No.55 in Circle
No.3 as being used for performing pujas in the temple. The
temple name is mentioned as Shri Hanuman Deosthan. There
is no reference in the application or in schedule I recording
the properties of the stated public trust to include the
“Padukas of Haridas Baba” installed in House No.878 in Circle
No.3. Concededly, no evidence is forthcoming to show that
Hanuman Temple exists in House No.878 in Circle No.3 which
is in possession of the defendants/appellants.
25. Suffice it to observe that the application for registration
of the public trust submitted by Chotelal on 31st August, 1953
(Exh.63), the subsequent application for registration
submitted by him under the provisions of the 1950 Act dated
13th September, 1961 (Exh.64), the schedule I recording
properties of the plaintiff public trust (Exh.43), the enquiry
report dated 13th October, 1954 (Exh.42), and the application
for framing of the scheme and the order passed by the Charity
Commissioner dated 4th April, 1975 (Exh.46), none of these
29
document mention about “Padukas of Haridas Baba” installed
in House No.878 or refer to House No.878 in Circle No.3 being
the trust property; but instead, make specific reference
to House No.55 in Circle No.3, which is a completely different
property. Notably, these documents also do not advert to the
document dated 23rd May, 1946 (Exh.41), purportedly
executed by Smt. Yashodabai allegedly creating a Panch
Committee in respect of the suit House No.878 in Circle No.3.
The finding of fact recorded by the First Appellate Court
regarding the two properties and, more particularly, analysis
in paragraphs 11 & 12 of its judgment (reproduced in
paragraph No. 12 herein above), have been brushed aside by
the High Court on the specious asumption that it is a case of
mis-description of the property in the official register of public
trust. That, however, was not the case pleaded much less
proved by the plaintiffs/respondents. Such finding recorded by
the High Court is a case of manifest error or error apparent, if
not perverse. The High Court could not have disregarded the
registration application and the description of the house
number given in schedule I as the registered property of the
30
public trust, which is House No.55 in Circle No.3. It was for
the plaintiffs/respondents to plead and prove that House
No.55 shown in schedule I as property of the plaintiff trust is
the same as House No.878 in Circle No.3, which description
has been given in the plaint as the suit house. Having failed to
establish that fact, no fault can be found with the finding
recorded by the First Appellate Court, that Shri Hanuman
Deosthan, a public trust, had no causal connection with
House No.878 in Circle No.3 occupied by the
defendants/appellants. Thus, it must necessarily follow that
the suit for possession (of House No.878 in Circle No.3)
instituted by the plaintiffs/respondents on the basis of title,
was devoid of merits.
26. We have no hesitation in upholding the finding of fact
recorded by the First Appellate Court that the suit house
occupied by the defendants/appellants was recorded in the
Municipal records during 1947 to 1950 as House No.878
belonging to Haridas Baba and that number was changed to
House No.521 in 1973-74 and converted to House No.152 till
31
the institution of the present suit. Further, it is clear that
House No.55 in Circle No.3 is entirely a different property.
That has been registered as the trust property of Shri
Hanuman Deosthan public trust, initially at the instance of
Chotelal and then continued to be shown as a registered
property of the plaintiff trust until the institution of the suit.
Such registration by the authorities under the 1950 Act would
bind the plaintiffs/respondents. The plaintiffs/respondents
have not been able to produce any documentary evidence to
establish the fact that the suit house (bearing House No.878 in
Circle No.3, which later on became House No.152 in Circle
No.3 by the time the suit was instituted), was the property of
the plaintiff trust. The concomitant of such a conclusion is to
dismiss the suit.
27. It is not necessary for us to dilate on every aspect dealt
with by the First Appellate Court or for that matter, the High
Court, for answering the substantial question of law under
consideration. We affirm the conclusion reached by the First
Appellate Court that the plaintiff trust had failed to produce
32
any documentary evidence to substantiate the fact that suit
House No.878 in Circle No.3 was the registered property of the
plaintiff trust and that the registered property of the plaintiff
trust bearing House No.55 in Circle No.3, is the same house in
possession of the defendants/appellants. Pertinently, the
latter property was not owned by Haridas Baba but belonged
to one Ramlal Munnalal Halwai, having a temple of
Radhakrishna and Ganpati. Further, the documentary
evidence produced by the plaintiffs/respondents would, at
best, establish the fact that Shri Hanuman Deosthan has been
registered as a public trust and owns the property referred to
in schedule I against its name (i.e. House No.55 in Circle
No.3). Thus, the property registered as belonging to the
plaintiff trust was other than suit house bearing No.878 in
Circle No.3. For all these reasons, the First Appellate Court
was justified in answering the principal issue against the
plaintiff trust.
33
28. That takes us to the second substantial question of law
formulated by the High Court for its consideration. The High
Court has adverted to the relevant portion of the written
statement to conclude that the defendants/appellants had
admitted that the suit property was originally owned by
Haridas Baba and that they were in possession in the capacity
of caretakers only. Indeed, that admission can be discerned
from the written statement of the defendants as well as the
oral evidence of DW-1. But that admission does not take the
matter any further. It is not possible to assume on the basis of
that admission that the “suit house” (i.e. House No.878 in
Circle No.3) is the property of the plaintiff trust. No
documentary evidence has been produced by the
plaintiffs/respondents to establish the fact that the suit house
bearing House No.878 in Circle No.3 originally owned by
Haridas Baba was recorded as the property of the plaintiff
trust in the official records. The plea taken by the defendants
in the written statement, however, is indicative of the fact that
they (defendants/appellants) were occupying House No.878 in
Circle No.3, which was originally owned by Haridas Baba and
34
where his Padukas had been installed. The written statement
as well as the oral evidence of defendants/appellants clearly
refute the claim of the plaintiffs/respondents. In that, the
trust named as Shri Hanuman Deosthan has been registered
in reference to some other properties and for performing puja
with the object of maintaining Hanuman Deosthan temple in
House No.55 in Circle No.3. We also find that the High Court
has selectively adverted to portion of the written statement
[sub-paras (b) to (d) of paragraph 11 thereof] and not to the
other portion of the same paragraph, namely sub-paras (e) to
(g) (reproduced in paragraph 9 hereinabove) which put across
the stand of the defendants/appellants including that the
plaintiff trust has no causal connection with the suit house
bearing No.878 in Circle No.3.
29. Needless to observe that the plaintiffs/respondents were
primarily obliged to establish their title in the suit house
bearing No.878 in Circle No.3 where the Padukas of Saint
Haridas Baba have been installed, as being the property of the
plaintiff trust. The plaintiffs must succeed or fail on the title
35
they establish; and if they fail to do so, they must fail to get
the relief of possession irrespective of title of the defendant in
the suit property (See Brahma Nand Puri Vs. Naki Puri3 and
Bajaranglal Shivchandrai Ruia Vs. Shashikant N. Ruia
and Ors.4). In the present case, no tangible evidence regarding
title of plaintiff trust in the suit house (House No.878 in Circle
No.3) is forthcoming.
30. The High Court has also adverted to the so-called
admission given by DW-1 Vijay, noted in paragraph No.12 of
the impugned judgment. In our opinion, the High Court has
completely misread the said admission. Inasmuch as, all it
says is that the house number had changed every four years
after revaluation. Further, the suit house is in Circle No.3.
This is spoken by the witness (DW1), in response to the
question posed to him about the change of Circle. He then
admits that since 1910, the suit house was owned by Haridas
Bairagi. We fail to understand as to how this admission can be
of any avail to the plaintiffs much less to hold that the plaintiff

3 (1965) 2 SCR 233
4 (2004) 5 SCC 272
36
trust has title in the suit house bearing House No.878 in
Circle No.3.
31. Much ado was made about the contents of a
communication sent by defendant No.1 to the Mayor of
Nagpur Municipal Corporation (Exh.75). The same reads thus:
“Exhibit-75
To,
The Mayor, Nagpur Municipal Corporation
Wasudeorao Maniramji Pullarwar,
Occupier Baba Haridasji Math,
House No.152, Ward No.6 New Ward
No.16, S. No.03, New Shukrawari,
Fawara Chowk, Medical Road, Nagpur. …..Applicant
Subject: Objection to mutation on house No.152, Ward
No.16 circle No.03, New SShukrawari, Fawara Chowk,
Medical Road, Nagpur.
Sir,
With respect, it submitted that house no.152, Ward
No.16 New Shukrawari Nagpur is recorded in the name of
Baba Haridas Math in the Nagpur Municipal Corporation
assessment register for the last 70 years. The applicant is
the disciple of Baba Haridas for the last 60 years and is in
possession and occupation of it for last 30 years. He is
looking after the Math and performing pooja/ustsav on
yearly basis (yearly Utsav). I am paying the taxes of the said
math for the last 30 years as occupier and user. The receipts
to that effect are with me. The demand bill for the year 1978-
79 for taxes is given to the applicant. From that it has come
to the knowledge of the applicant that the said house is
recorded in the name of “Shri Hanuman Deosthan Trust”.
Then it is mentioned that the said change is as per the
decision of Learned Charity Commissioner, Mumbai dated
4.4.1975 and the same is recorded on 15.7.1976 in the
name of Hanuman Deosthan Trust. However, in the office or
37
register of Charity Commissioner, Mumbai or Deputy Charity
Commissioner, Nagpur dated 4.4.1975, there is no
reference/mention about Shri Haridas Baba Math, House
No.152, Ward No.16, Circle No.3, New Shukrawari, Nagpur
nor there is any reference in the copy received by me.
Hence, the Hanuman Deosthan Trust has got the
name changed from Haridas Baba Math to Hanuman
Deosthan Trust by keeping the tax department in the dark,
fraudulently. The change is recorded by the assessment
department of the Nagpur Municipal Corporation without
consulting or asking the applicant. The said change is not
acceptable to the applicant.
Hence, the original name of Baba Haridas Math should
be maintained. Accordingly, the applicant is ready to pay the
taxes as earlier.
Also the Hanuman Deosthan Trust has got the change
done by keeping the Corporation in the dark. It has no
relation with the math.
Hence, the name of the said Trust be removed and
original name of Baba Haridas Math be maintained. The
applicant be given opportunity to produce his documents
and say before yourself.
Nagpur
Dated: 17.3.1980 Sd/-Wasudeo Pullarwar
Applicant”
We fail to understand as to how this communication can be
used as an admission of the defendants much less of having
accepted the title of the plaintiff trust in the suit House No.878
(renumbered as House No.152), in Circle No.3. On the other
hand, it is a representation made to assail the unilateral 
38
alteration of mutation entry in favour of Shri Hanuman
Deosthan Trust in violation of principles natural justice.
32. Suffice it to observe that even the second substantial
question of law must be answered against the plaintiffs and in
favour of the defendants/appellants.
33. Taking any view of the matter, we have no hesitation in
upholding the conclusion recorded by the First Appellate
Court that the suit filed by the plaintiffs/respondents for
possession of the suit house is devoid of merits and deserves
to be dismissed.
34. Accordingly, this appeal succeeds. The impugned
judgment and order passed by the High Court dated 24th
October, 2008 in Second Appeal No.364 of 1990 is set aside
and the judgment and decree passed by the District Court
Nagpur dated 21st January, 1989 in Regular Civil Appeal
No.564 of 1983, is restored. Thereby, the suit filed by the
plaintiffs/respondents bearing Special Civil Suit No.1127 of
39
1978 before the Court of Civil Judge, Senior Division, Nagpur
stands dismissed. No order as to costs. Ordered accordingly.


…………………………..….J.
 (A.M. Khanwilkar)
…………………………..….J.
 (Dr. D.Y. Chandrachud)
New Delhi;
November 16, 2018.

mere non marking of documents as Exibits is only procedural lapse not fatal = First, the appellants had adduced sufficient evidence to prove the accident and the rash and negligent driving of the driver of the offending vehicle, which resulted in death of Rajendra Prasad. 27. Second, the appellants filed material documents to prove the factum of the accident and the persons involved therein. 28. Third, the documents clearly established the identity of the Truck involved in the accident, the identity of the driver driving the truck, the identity of the owner of the Truck, the name of the insurer of the offending Truck, the period of coverage of insurance of the Truck, the details of the lodging of 13 FIR in the concerned police station in relation to the accident. 29. In our view, what more documents could be filed than the documents filed by the appellants to prove the factum of the accident and the persons involved therein. 30. Fourth, so far as the driver and owner of the Truck were concerned, both remained ex parte since inception and, therefore, neither contested the appellants’ claim petition nor entered into the witness box to rebut the allegations of the appellants made in the claim petition and the evidence. An adverse inference against both could be drawn. 31. Fifth, so far as the Insurance Company is concerned, they also did not examine any witness to rebut the appellants’ evidence. The Insurance Company could have adduced evidence by 14 examining the driver of the offending Truck as their witness but it was not done. 32. Sixth, on the other hand, the appellants examined three witnesses and thereby discharged their initial burden to prove the case. 33. Seventh, if the Court did not exhibit the documents despite the appellants referring them at the time of recording evidence then in such event, the appellants cannot be denied of their right to claim the compensation on such ground. In our opinion, it was nothing but a procedural lapse, which could not be made basis to reject the claim petition. It was more so when the appellants adduced oral and documentary evidence to prove their case and the respondents did nothing to counter them.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NO. 11042  OF 2018
(Arising out of S.L.P.(C) No. 17321 of 2016)
Vimla Devi & Ors.             ….Appellant(s)
VERSUS
National Insurance Company
Limited & Ors.             ….Respondent(s) 
J U D G M E N T
Abhay Manohar Sapre, J.
1. Leave granted.
2. This appeal is filed by the claimants against
the   final   judgment   and   order   dated   23.03.2015
1
passed   by   the   High   Court   of   Judicature   for
Rajasthan Bench at Jaipur in SBCMA No. 1739 of
2007 whereby the High Court dismissed the appeal
filed by the claimants and affirmed the award dated
05.12.2005 passed by the MACT Chomu (Jaipur) in
MAC Case No. 48/2005. 
3. In order to appreciate the issues arising in the
case, it is necessary to set out the relevant facts
hereinbelow.
4. The   appellants   are   the   claimants/plaintiffs
whereas   the   respondents   are   the   nonapplicants/defendants
in the claim petition out of
which this appeal arises.
5. One Rajendra Prasad aged around 25 years
was travelling in the passenger Bus bearing No.RJ07­P­2151
as its bona fide passenger on 03.06.2003
for going to a place called  "Chomu".  When the Bus
reached   near   Police   Station,   Chomu,   a   Truck
2
bearing No. HR­55A­7729, which was going towards
Jaipur   from   Chomu   came   on   a   high   speed   and
dashed against Bus. The impact of dash against the
Bus was so violent that Rajendra Prasad, who was
sitting inside the Bus, sustained grievous injuries
resulting in his instant death. This led to filing of
the FIR No. 214/2003 in Police Station, Chomu.
6. It is this incident, which gave rise to initiation
of two legal proceedings, namely, criminal and civil.
So far as the criminal proceedings are concerned, a
charge sheet (1/2003) was filed by the State against
the driver of the offending Truck in the Court of
Magistrate under Section 304­A of the Indian Penal
Code, 1860 (in short, “IPC”).
7. So far as the civil proceedings are concerned
with which we are concerned in this appeal were
filed by the appellants herein (claimants), who are
the     wife     and   the   two   minor   children   of   the
3
deceased,   against   the   Insurance   Company
(respondent No. 1), driver (respondent No. 2) and
the owner (respondent No. 3) of the offending Truck
under   Section   166   of   the   Motor   Vehicles   Act
(hereinafter referred to as “the Act”) before the Motor
Accident Compensation Tribunal, Chomu claiming
therein to award reasonable compensation to them
for the loss sustained on account of untimely death
of Rajendra Prasad­their only bread earner in the
family.
8. The appellants along with their claim petition
filed all those documents, which were filed by the
State in the criminal proceedings against the driver,
such as  FIR, charge sheet, site plan, post mortem
report of the deceased, registration of Truck No. HR
­A­7729, insurance coverage, mechanical inspection
report, copy of notice issued to the owner under
Section 133 of the Act etc.
4
9. So far as the driver and owner of the offending
Truck are concerned, since inception both remained
ex parte in the proceedings. So far as the Insurance
Company (insurer) is concerned, they alone entered
appearance   and   filed   the   written   statement.   The
Insurance Company, however, contended  inter alia
in their written statement that firstly, the owner of
the   Truck   did   not   give   any   intimation   to   the
Insurance Company; Secondly, the owner and the
driver of the bus were not impleaded as party in the
proceedings; and Thirdly, the owner of the offending
Truck did not send a copy of the driving license of
the driver to the Insurance Company to enable them
to make an inquiry about its genuineness (see Para
3 of the award).
10. The   claimants   examined   three   witnesses   in
support of their case. The Insurance Company did
not   examine   any   witness.   By   award   dated
5
05.12.2005, the Tribunal dismissed the appellants’
claim petition. It was held that the claimants failed
to   prove   the   accident   including   involvement   of
offending Truck, which caused death of Rajendra
Prasad. It was held that though the claimants filed
the documents but since those documents were not
exhibited, the Insurance Company could not crossexamine
  the   claimants’   witnesses   on   the
documents.   In   short,   the   Tribunal   held   that   the
claimants failed to prove the accident for want of
evidence and the one adduced was not exhibited
and hence was of no use. These were basically the
two   findings   on   which   the   claim   petition   was
dismissed. 
11. The claimants felt aggrieved and filed appeal in
the High Court for  Rajasthan Bench at Jaipur. By
impugned   order,   the   High   Court   dismissed   the
appeal, which has given rise to filing of the present
6
appeal by way of special leave by the claimants in
this Court.
12. Heard Mr. Maruf Khan, learned counsel for the
appellants   and   Ms.   Meenakshi   Midha,   learned
senior counsel for respondent No.1.
13. Having   heard   the   learned   counsel   for   the
parties and on perusal of the record of the case, we
are   constrained   to   allow   the   appeal   and   while
setting aside the impugned order allow the claim
petition   filed   by   the   appellants   (claimants)   and
award reasonable compensation to the appellants
as indicated infra.
14.     In   our   considered   opinion,   the   approach,
reasoning and the conclusion of the Tribunal and
the High Court for dismissing the appellants’ claim
petition/appeal   was   not   in   accordance   with   law
inasmuch   as   both   did   not   deal   with   any   issue
arising in the case. The High Court while dismissing
7
the   appeal   simply   affirmed   the   award   of   the
Tribunal without assigning any reason.
15. Before we examine the factual matrix of the
case   at   hand,   it   is   apposite   to   take   note   of   the
provisions of the Act, which have relevance while
deciding the claim petition.
16. At the outset, we may reiterate as has been
consistently said by this Court in a series of cases
that   the   Act   is   a   beneficial   piece   of   legislation
enacted to give solace to the victims of the motor
accident who suffer bodily injury or die untimely.
The Act is designed in a manner, which relieves the
victims from ensuring strict compliance provided in
law, which are otherwise applicable to the suits and
other   proceedings   while   prosecuting   the   claim
petition   filed   under   the   Act   for   claiming
compensation for the loss sustained by them in the
accident.     
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17. Section 158 of the Act casts a duty on a person
driving   a   motor   vehicle   to   produce   certain
certificates,   driving   licence   and   permit   on   being
required by a police officer to do so in relation to the
use of the vehicle. Sub­section (6), which was added
by way of amendment in 1994 to Section 158 casts
a duty on the officer in­charge of the police station
to forward a copy of the information (FIR)/report
regarding   any   accident   involving   death   or   bodily
injury to any person within 30 days from the date of
information   to   the   Claim   Tribunal   having
jurisdiction   and   also   send   one   copy   to   the
concerned   insurer.   This   sub­section   also   casts   a
duty on the owner of the offending vehicle, if a copy
of   the   information   is   made   available   to   him,   to
forward the same to the Claims Tribunal and the
insurer of the vehicle.
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18. The Claims Tribunal is empowered to treat the
report of the accident on its receipt as if it is an
application made by the claimant for award of the
compensation  to him  under the  Act by virtue  of
Section 166 (4) of the Act and thus has jurisdiction
to decide such application on merits in accordance
with law.   
19. The object of Section 158(6) read with Section
166(4) of the Act is essentially to reduce the period
of pendency of claim case and quicken the process
of   determination   of   compensation   amount   by
making   it   mandatory   for   registration   of   motor
accident claim within one month from the date of
receipt of FIR of the accident without the claimants
having to file a claim petition. (See Jai Prakash vs.
National Insurance Co. Ltd.,  2010 (2) SCC 607).
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20. There are three Sections, which empower the
Claims   Tribunal   to   award   compensation   to   the
claimant,   viz.,   Section   140,   Section   163­A   and
Section­166 of the Act.
21. So far as Section 140 of the Act is concerned,
it deals with the cases for award of compensation
based on the principle of no fault liability.
22. So far as Section 163A of the Act is concerned,
it deals with special provisions as to payment of
compensation and is based on structured formula
as specified in Second Schedule appended to the
Act.
23. While   claiming   compensation   payable   under
Section   140   and   Section   163A   of   the   Act,   the
claimant is not required to prove any wrongful act,
neglect or default of the person concerned against
whom the claim is made by virtue of Section 140 (4)
and Section 163A ( 2 ) of the Act.
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24. So far as Section 166 of the Act is concerned,
it also deals with payment of compensation. Section
168   of   the   Act   deals   with   award   of   the   Claims
Tribunal whereas Section 169 of the Act provides
procedure and powers of the Claims Tribunal. As
has been held by this Court (Three Judge Bench),
the claim petition filed under the Act is neither a
suit nor an adversarial  lis  in the traditional sense
but it is a proceeding in terms of and regulated by
the provisions of Chapter XII of the Act, which is a
complete   Code   in   itself.   (See  United   India
Insurance  Company  Ltd.  vs  Shila  Datta  &  Ors.,
2011 (10) SCC 509).
25. Keeping in view the aforementioned principle
of law when we examine the facts of the case at
hand, we are of the  considered opinion that  the
Claims   Tribunal   and   the   High   Court   were   not
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justified in dismissing the appellants’ claim petition.
In our view, the appellants’ claim petition ought to
have   been   allowed   for   awarding   reasonable
compensation to the appellants in accordance with
law. This we say for the following reasons.
26. First,   the   appellants   had   adduced   sufficient
evidence to prove the accident and the rash and
negligent   driving   of   the   driver   of   the   offending
vehicle, which resulted in death of Rajendra Prasad.
27. Second,   the   appellants   filed   material
documents to prove the factum of the accident and
the persons involved therein.
28.   Third, the documents clearly established the
identity of the Truck involved in the accident, the
identity of the driver driving the truck, the identity
of the owner of the Truck, the name of the insurer of
the   offending   Truck,   the   period   of   coverage   of
insurance of the Truck, the details of the lodging of
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FIR in the concerned police station in relation to the
accident. 
29. In our view, what more documents could be
filed than the documents filed by the appellants to
prove the factum of the accident and the persons
involved therein. 
30. Fourth, so far as the driver and owner of the
Truck were concerned, both remained ex parte since
inception   and,   therefore,   neither   contested   the
appellants’   claim   petition   nor   entered   into   the
witness   box   to   rebut   the   allegations   of   the
appellants   made   in   the   claim   petition   and   the
evidence.  An adverse inference against both could
be drawn.
31. Fifth,   so   far   as   the   Insurance   Company   is
concerned, they also did not examine any witness to
rebut   the   appellants’   evidence.   The   Insurance
Company   could   have   adduced   evidence   by
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examining the driver of the offending Truck as their
witness but it was not done.
32. Sixth,   on   the   other   hand,   the   appellants
examined three witnesses and thereby discharged
their initial burden to prove the case. 
33. Seventh,   if   the   Court   did   not   exhibit   the
documents despite the appellants referring them at
the time of recording evidence then in such event,
the appellants cannot be denied of their right to
claim   the   compensation   on   such   ground.   In   our
opinion,   it   was   nothing   but   a   procedural   lapse,
which could not be made basis to reject the claim
petition.   It   was   more   so   when   the   appellants
adduced oral and documentary evidence to prove
their   case   and   the   respondents   did   nothing   to
counter them.
34. In   the   light   of   the   aforementioned   seven
reasons, we are of the considered opinion that the
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appellants   were   able   to   prove   the   factum   of   the
accident so also the factum of rash and negligent
act of the driver causing the accident. It is also
proved that the offending Truck was insured with
respondent No. 1 at the time of accident and was
owned by respondent No. 3.
35. This takes us to consider the next question as
to   how   much   compensation   the   appellants   are
entitled to claim for the death of their bread earnerRajendra
Prasad.
36. It has come in the evidence that the deceased
was around 25 years of age and left behind him his
wife and two minor children. It has also come in
evidence that he was earning around Rs.10,000/­
per month.
37. Having   regard   to   all   the   facts   and
circumstances of the case, we consider it proper to
take   Rs.5000/­   to   be   his   monthly   income.
16
Deducting 1/3rd towards personal expenses, we get
around Rs.3300/­. The appellants are also entitled
to claim loss of future prospect at the rate of 40%,
which works out to Rs.1320/­ thus making a total
income of Rs.4620/­.  Applying the multiplier of 18,
we get Rs.4620x12 x18 = Rs.9,97,920/­.         .
38. To the aforementioned amount, we add and
accordingly   award   Rs.15,000/­   for   funeral
expenses,   Rs.15,000/­   for   loss   of   the   estate   and
Rs.1,00,000/­   for   loss   of   spousal   and   parental
consortium. In this way, the appellants (claimants)
are held entitled to claim Rs.11,27,920/­ by way of
compensation   from   the   respondents   jointly   and
severally. The amount awarded by this Court shall
carry interest at the rate of 6% p.a. from the date of
claim petition till realization.
39. In view of the foregoing discussion, the appeal
succeeds   and   is   allowed.   Impugned   order   is   set
17
aside. The appellants’ claim petition is allowed in
part   as   indicated   above   against   the   respondents
jointly and severally.
40. Respondent   No.1­Insurance   Company   is
directed   to   deposit   the   awarded   sum   within   3
months with the Claims Tribunal for being paid to
the appellants after proper verification.
   ………...................................J.
[ABHAY MANOHAR SAPRE]
                                   …...……..................................J.
                       [INDU MALHOTRA]
New Delhi;
November 16, 2018
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