Neutral Citation No. 2026:JHHC:21767-DB

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IN THE HIGH COURT OF JHARKHAND AT RANCHI

L.P.A. No. 79 of 1992

1. Dilip David Hansda, son of Shri Lal Hansda, resident of Village –

Narayanpur, PO- Balia Danga, PS- Maheshpur, District – Pakur

(Jharkhand)

2. Shree Pravir Kumar Soren, son of Jadu Soren, resident of Village –

2240/BB7, Delatoli, P.O.- Bariatu, P.S.- Sadar, District - Ranchi

(Jharkhand)

3. Bablu Kumar Murmu, son of Late Paul Murmu, resident of Village –

Bandarjori, P.O. & P.S. Dumka, District - Dumka (Jharkhand).

… … Plaintiffs-Respondents-Appellants

Versus

1. Mr. Oddvar Holmedal, S/o Alf Holmedal, Koroyo Mission, P.O.

Koroyo Madhuchachi, via – Gunhiajari, P.S.- Dumka Muffasil,

District - Dumka.

2. Rt. Rev. Nityanando Borgawary, S/o. Rev. Romedo Borgawary,

Gaurang Mission at Hattugoan, P.O.- P.S. and District – Kokarajhar

(Assam) at present at Badrarjori Mission in Dumka town, District -

Dumka.

... Defendants/Appellants/Respondents

WITH

L.P.A. No. 80 of 1992

1. Shree Pravir Kumar Soren, son of Jadu Soren, resident of Village –

2240/BB7, Delatoli, P.O.- Bariatu, P.S.- Sadarr, District - Ranchi

(Jharkhand)

2. Rameshwar Hembrom, S/O Khade Hembrom, a Christian Santhal,

resident of village – Kukurtopa, P.S. Jama, District – Dumka.

3. Dilip David Hansda, son of Shri Lal Hansda, resident of Village –

Narayanpur, PO- Balia Danga, PS- Maheshpur, District – Pakur

(Jharkhand)

4. Bablu Kumar Murmu, son of Late Paul Murmu, resident of Village –

Bandarjori, P.O. & P.S. Dumka, District - Dumka (Jharkhand).

5. Nathaniel Murmu, S/o. Late Churmu Murmu, a Christian Santhal by

profession a Lawyer at Dumka Court, Dumk,a District - Dumka.

6. Bishwanath Tudu, S/o Late Rambhai Tudu alias Ramai Tudu, a

Christian Santhal, by profession Service holder, being head clerk at

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Sahibganj Welfare Office, P.S. Sahibganj, District - Dumka (Bihar)

(now Jharkhand).

7. Gopin Tudu alias Gupen Soren, S/o Late Suna Soren, a Christian

Santhal, resident of Mohal Pahari Mission, P.S. Shhekaipara, District

- Dumka.

... Defendants-Appellants-Appellants

Versus

1. Trust Association of the N.E.L.C. incorporated under the Companies

Act, 1956 (1/56) having its registered office at Santhal Mission

House, Dumka, P.S. Dumka Town, Sub-Division – Dumka, District -

Dumka.

Plaintiff/Respondent/1

st

Party Respondent

2. Mr. Oddvar Holemdal, S/o. Alf Holmedal, Koroya Mission, P.O.-

Koroyo Madhuchachi, Via- Gunhiajari, P.S.- Dumka Muffasil,

District – Dumka.

3. Rt. Rev. Nityanando Borgawary, S/o. Rev. Romedo Borgawary,

Gaurang Mission at Hattugoan, P.O.- P.S. and District – Kokarajhar

(Assam) at present at Badrarjori Mission in Dumka town, District -

Dumka.

... Plaintiffs/Respondents/2

nd

Party Respondents

---------

CORAM: HON’BLE THE CHIEF JUSTICE

HON’BLE MR. JUSTICE RAJESH SHANKAR

---------

For the Appellants: Mr Rajeeva Sharma, Sr. Advocate

Mr Om Prakash, Advocate

Mr Ritesh Kumar, Advocate

For the Respondents: Mr Anil Kumar, Senior Advocate

Mr Rahul Kumar, Advocate

Ms Chandana Kumari, Advocate

For the Interveners: Mr Sudhir Kumar Sharma, Advocate

---------

Reserved on: 14.07.2026 Pronounced on: 23/07/2026

Per M. S. Sonak, C.J.

1. Heard Mr Rajeeva Sharma, learned Senior Advocate, who appears

with Mr Om Prakash and Mr Ritesh Kumar for the appellants in

both appeals, and Mr Anil Kumar, learned Senior Advocate, who

appears with Mr Rahul Kumar and Ms Chandana Kumari on behalf

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of the respondents in both appeals. Mr Sudhir Kumar Sinha

appeared and was heard on questions of law after I.A. No. 11821 of

2024 in L.P.A. No. 80 of 1992 was dismissed.

2. L.P.A. No. 79 of 1992 challenges the learned Single Judge’s

common judgment, decree and order dated 30.06.1992 in First

Appeal No. 564 of 1985 by which the learned Single Judge set

aside the judgment and decree dated 28.06.1985 passed by this

District Judge, Dumka (Trial Court) in Title Suit No. 05 of 1971

instituted by the appellants herein. Trial Court had decreed Title

Suit No. 05 of 1971 in favour of the appellants herein (original

plaintiffs).

3. L.P.A. No. 80 of 1992 challenges the learned Single Judge’s

common judgment, decree and order dated 30.06.1992 in First

Appeal No. 197 of 1986 affirming the judgment and decree dated

05.02.1986 passed by the Additional District Judge, Dumka (Trial

Court) in Title Suit No. 11 of 1971 instituted by respondents herein

who were plaintiffs in Title Suit No. 11 of 1971. The Trial Court

had decreed Title Suit No. 11 of 1971 in favour of the respondents

herein, who were the plaintiffs in Title Suit No. 11 of 1971.

4. The records show that First Appeal Nos. 56 of 1985 and 197 of

1996 were disposed of by the learned Single Judge by a common

judgment, decree and order dated 30.06.1992. Therefore, although

two separate LPAs, i.e. L.P.A. No. 79 of 1992 and L.P.A. No. 80 of

1992 have been filed, the learned counsel for the parties agree that

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both these appeals could be disposed of by a common judgment and

order.

GENESIS OF THE DISPUTE

5. The dispute in the two suits, i.e., Title Suit No. 05 of 1971 and Title

Suit No. 11 of 1971, from which these appeals arise, relates to the

year 1880, when Rev. Hans Peter Doerresen and Rev. Laurentius

Olaves Skrefsrud, engaged in Evangelical Protestant Mission Work

amongst the Native Santals, founded a missionary society, earlier

called ‘Indian Home Mission to the Santals’, now known as ‘Santal

Mission of Northern Churches’ (SMNC), ‘for the education and

civilisation of the local inhabitants’. They acquired movable and

immovable properties for the purposes of the said mission and

created a Trust by executing a Trust Deed dated 21

st

of April 1880

to secure the properties they had acquired and might acquire in the

future.

6. The Trustees referred to in the Trust Deed dated 21

st

of April 1880

included not only Rev. Hans Peter Doerresen and Rev. Laurentius

Olaves Skrefsrud, but also Mr Thomas Taylor Allen and Mr Robert

Allen, Ex-trustees. They conveyed and assigned all the trust

properties to be held in such manner as directed by them, their

survivors, or persons appointed or nominated by them. To achieve

the mission's objective, the Trustees were to hold the properties for

the Christian Santal Churches established in the Santal Parganas by

the said Mission. After the death and/or retirement of the original

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Trustees, successor Trustees were appointed under deed polls to

whom the trust properties were assigned, conveyed and transferred.

7. Title Suit No. 01 of 1914 was filed before the District Judge,

Dumka for settling a scheme for the better management of the trust

properties. The suit was disposed of in terms of the scheme agreed

to by the parties, which was later incorporated in a Supplementary

Trust Deed dated 8

th

of December 1920.

8. The Indian Home Mission to Santals, later SMNC, established

some Christian Santal Churches in the Santal Parganas between

1950 and 1959. These Churches were known as Evangelical

Lutheran Churches. Ultimately, they evolved into the “Trust

Association of Northern Evangelical Lutheran Church” (NELC), a

self-governing and independent Church with its own constitution,

rules and regulations. After the coming into force of the Indian

Companies Act, 1956, the above-referred Trust Association of

Northern Evangelical Lutheran Church was registered as a

Company under the said Act. This Company shall be referred to as

‘NELC Pvt Ltd’.

9. On 10

th

of February 1968, the then-existing trustees of SMNC

executed an instrument of transfer from one body of trustees to

another under the provisions of Article 62(e) of the Indian Stamp

Act. At that time, Rev. Gunnar Fossland, Rev. H. N. Riber and Rev.

Jens Berner Alson were the trustees of SMNC. Under this

Instrument of Transfer dated 10

th

of February 1968, NELC Pvt Ltd

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was introduced as a new trustee. There is considerable debate

about the scope and import of the Instrument of Transfer dated 10

th

of February 1968.

10. Jacob Hembrom, Raghunath Kisku, Paraganait Bhim Murmu,

Emanual Murmu, and Chunnu Murmu (appellants herein or their

predecessors), claiming to be the beneficiaries of the 1880 Santal

Mission of Northern Church trust (SMNC), instituted Title Suit No.

05 of 1971 under section 92 of the CPC in the Court of the District

Judge at Dumka. The suit was instituted after obtaining the

necessary consent of the Advocate General.

11. In Title Suit No. 05 of 1971, the above-mentioned persons

(plaintiffs) prayed for the following reliefs: -

(i) A decree be passed, settling a scheme for the proper

management of the Trust generally known as the Santhal

Mission of the Northern Churches, and a Receiver be

appointed pendent lite and management of the said Trust

be taken out of the hands of the present Trustees

(ii) a decree be passed declaring that the transfer dated

10.2.68 by defendants nos.1 to 3 in favour defendant nos.

4 to 13 is inoperative, invalid, and illegal ab initio and

the plaintiffs are not bound by the same.

(iii) (b) a decree be passed that the properties cover by the

trust dated 21.4.1980 and the deed dated 17.4.1909

incorporated in the decree dated 21.4.1914 in Title Suit

No. 01 of 1914 and later incorporated in the deed dated

8.12.1920 and such other properties acquired for and on

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behalf of the trust, cannot be sold,, mortgaged or

hypothecated and or transferred to any other persons in

violation of the terms of the deed of agreement as

aforesaid, and the defendants be permanently restrained

from interfering with the rights and claims of the plaintiffs

and the other beneficiaries belonging to the Santal

Mission of the Northern Churches by an order of

permanent injunction.

(iv) (c) The trustees being guilty of misconduct be removed.

(v) A decree for costs of the suit.

(vi) A decree for such other relief or reliefs to which the

plaintiffs be entitled.

12. In Title Suit No. 05 of 1971, the plaintiffs impleaded 11 defendants

described as “All Directors of the Trust Association of Northern

Evangelical Lutheran Church”. Crucially, NELC Pvt Ltd was never

impleaded as a defendant to this suit, even though the plaint alleged

that the Instrument of Transfer dated 10

th

February 1968 had

unauthorisedly transferred the SMNC trust properties to NELC Pvt

Ltd, and the relief sought was to declare the said Instrument of

Transfer dated 10

th

February 1968 “inoperative, invalid, and illegal

ab initio and the plaintiffs are not bound by the same”.

13. Title Suit No. 11 of 1971 was instituted by NELC Pvt Ltd, Rev. H.

N. Riber, Rev. John Thoft Krogh and Miss Betzy Nordby, as

trustees of SMNC, against about 12 defendants, who were sought to

be sued in a representative capacity. Leave under Order 1 Rule 8 of

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the CPC was obtained, and necessary notices were also published in

accordance with the law.

14. In Title Suit No. 11 of 1971, NELC Pvt Ltd and the other co-

plaintiffs sought the following reliefs: -

(a) Declaration of title and confirmation of possession over

the Mission compounds, as described in Scheduled ‘A’,

A(1), A(2), A(3), A(4), A(5), A(6), A(7), A(8), A(9), A(10)

& A(11) attached to this plaint,

(b) A declaration that the defendants got no right to enter

into the Mission compounds as described in the said

schedules A, A(1), A(2), A(3), A(4), A(5), A(6), A(7),

A(8), A(9), A(10) & A(11) attached to this plaint, even

for performing religious rites and offering their prayers

within the said Compounds, except in accordance with

the constitution and the Rules and Regulations framed

by the plaintiff 1

st

party in this behalf, marked Annexure

‘I’ and ‘II’ to this plaint.

(c) Permanent Injunction restraining the defendants from

entering upon the Mission Compounds, as described in

the said Schedules A, A(1), A(2), A(3), A(4), A(5), A(6),

A(7), A(8), A(9), A(10) & A(11), except with the

permission of the proper Authorities and the Rule and

Regulation framed by the plaintiff 1

st

party.

(d) Permanent Injunction restraining the defendants from

describing themselves as different office bearers of the

Santhal Mission of the Northern Churches, the plaintiff

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2

nd

party and from getting printed pamphlets letter-

heads and other documents describing themselves as the

office bears of the Santhal Mission of the Northern

Churches, the plaintiff 2

nd

party and from using the said

pamphlets, letter-heads and other documents of

distributing them amongst the Christians and the public

in general.

(e) Costs of the suit and such other relief or reliefs as may

be deemed fit and proper.

15. The Trial Judge partly decreed Title Suit No. 05 of 1971 vide

judgment and decree dated 28.06.1985 granting the plaintiffs

therein the following relief: -

“That the suit be decreed on contest in part with

proportionate costs. Pleader’s fee Rs.64/- and the

Pleader’s Clerk’s fee as usual. The conveyance deed dated

10.2.68, Ext.N, is hereby declared illegal, inoperative and

not binding upon the plaintiffs. The defendants are

permanently injuncted from disposing of any of the

properties covered by the Trust deed dated 21.4.1914

passed in Title Suit No. 1 of 1914 and such other properties

acquired for and on behalf of the Trust by sale, mortgage

or by hypothecation to any person in violation of the terms

of the aforesaid documents. The plaintiffs are held liable

for paying advalorem court fee. They are directed to pay

the same within ninety days from this day, failing which the

suit shall stand dismissed.”

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16. The Trial Court, by a separate judgment and decree dated

05.02.1986, decreed Title Suit No. 11 of 1971, granting the

plaintiffs therein (respondents herein) substantially all the reliefs

sought in that suit.

17. Against the judgment and decree dated 28.06.1985, by which Title

Suit No. 05 of 1971 was decreed, the defendants in that suit

preferred F.A. No. 564 of 1985 before the learned Single Judge of

the Patna High Court. Similarly, as against the judgment and decree

dated 05.02.1986, which decreed Title Suit No. 11 of 1971, the

defendants therein preferred F.A. No. 197 of 1986 before the

learned Single Judge of the Patna High Court.

18. Both these Appeals were preferred before the Learned Single Judge

of the Patna High Court because, until the year 2000, the State of

Jharkhand had not been founded, and the Trial Courts were subject

to the appellate and supervisory jurisdictions of the Patna High

Court.

19. The learned Single Judge of the Patna High Court, by a common

judgment, decree and order dated 30.06.1992, disposed of F.A.

Nos. 564 of 1985 and F.A. No. 197 of 1986. F.A. No. 564 of 1985

was allowed, and the judgment and decree dated 28.06.1985 in

Title Suit No. 05 of 1971 were set aside, thereby restoring the

Instrument of Transfer dated 10.02.1968. By the same judgment,

decree and order, F.A. No. 197 of 1986 was dismissed, thereby

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affirming the judgment and decree dated 5

th

February 1986, by

which Title Suit No. 11 of 1971 had been decreed.

20. The appellants, aggrieved by the learned Single Judge’s common

judgment, order, and decree, filed Letters Patent Appeals (LPAs)

before the Division Bench of the Patna High Court. However,

following the formation of the State of Jharkhand on 15.11.2000,

these LPAs were transferred to the Division Bench of the High

Court of Jharkhand and numbered as LPA No. 79/1992, which

concerns Title Suit No. 05 of 1971 and F.A. No. 564 of 1985, and

LPA No. 80/1992, which concerns Title Suit No. 11 of 1971 and

F.A. No. 197 of 1986.

21. The record shows that these Appeals were argued before several

Benches on several occasions. However, the arguments remained

inconclusive for one reason or another. In our drive to address old

cases, we did grant the learned counsel for the parties’

accommodation to commence arguments on some occasions but

clarified that we would not grant any long adjournments. The

matters were ultimately argued on 07.07.2026, 08.07.2026,

13.07.2026 and 14.07.2026 and reserved for orders.

APPELLANTS’ CONTENTIONS

22. Mr Rajeeva Sharma, learned Senior Advocate for the appellants in

the context of L.P.A. No. 79 of 1992 contended as follows: -

(a) That the finding that Title Suit No. 5 of 1971 was not

maintainable under Section 92 of the CPC or that no relief of

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declaration of nullity of the Instrument of Transfer dated

10.02.1968 could be granted therein, was erroneous and

perverse. He submitted that the necessary consent was

obtained from the Advocate General before instituting this

suit. As beneficiaries of the SMNC trust, the plaintiffs sought

the framing of a scheme to manage the affairs of the Trust and

the removal of the existing trustees, who were mismanaging

the Trust and its properties. One of the prime instances of

mismanagement was the execution of the Instrument of

Transfer dated 10.02.1968, by which the existing trustees

unauthorisedly and fraudulently transferred the trust properties

to NELC Pvt Ltd. He submitted that all the predicates of

Section 92 of the CPC were duly fulfilled and, therefore, Title

Suit No. 05 of 1971 was maintainable and was correctly

decreed by the Trial Court.

(b) The First Appellate Court ignored the voluminous evidence on

record regarding the misconduct of the existing trustees of

SMNC and the unauthorised and fraudulent transfer of the

trust properties to NELC Pvt Ltd. He submitted that the fraud

and collusion of the existing trustees of the SMNC Trust were

evident because, along with NELC Pvt Ltd, they joined as co-

plaintiffs in Title Suit No. 11 of 1971, claiming a declaration

that it had become the owner of the SMNC trust properties,

relying upon the fraudulent Instrument of Transfer dated

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10.02.1968 and a permanent injunction to restrain beneficiaries

like the appellants from interfering with the SMNC trust

properties. He contended that such conduct, or rather

misconduct, was sufficient to conclude mismanagement of the

Trust and the Trust properties. Once this was established, no

fault could have been found with the Trial Court’s judgment

and decree dated 28.06.1985 setting aside the fraudulent

Instrument of Transfer dated 10.02.1968.

(c) The collusive and fraudulent Instrument of Transfer dated

10.02.1968 was executed by only two of the three existing

trustees of the SMNC Trust. The 3

rd

Trustee, in breach of

Sections 47 and 48 of the Indian Trusts Act, purported to

delegate his powers and duties to a Power of Attorney, who

ultimately executed the fraudulent Instrument of Transfer

dated 10.02.1968. He therefore submitted that the Instrument

of Transfer, being in breach of Sections 47 and 48 of the

Indian Trusts Act, was void and was correctly set aside by the

Trial Court.

(d) The fraudulent Instrument of Transfer dated 10.02.1968 was

void because it was contrary to the purposes of the SMNC

Trust, founded in 1880. No such transfer was competent until

the object of the SMNC Trust, namely the education and

civilisation of the local inhabitants, was fully achieved. There

is no record of the three existing trustees exercising their

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subjective satisfaction in the manner known to law. No

document, such as a resolution of the Trust signed by all three

trustees, was ever produced on record. He submitted that the

existence of such a resolution was a sine qua non for the

execution of the Instrument of Transfer dated 10.02.1968.

(e) There was no pleading in the suit that the fraudulent

Instrument of Transfer dated 10.02.1968 was a transfer from

one body of trustees to another, and therefore it was not the

same as a transfer or conveyance of the Trust properties by one

set of trustees to NELC Pvt Ltd. He submitted that there were

also no pleadings in Title Suit No. 05 of 1971 to the effect that

NELC Pvt Ltd had now become one of the Trustees of SMNC

Trust. In the absence of such pleadings, the First Appellate

Court was not justified in making out an entirely new case for

the defendants in Title Suit No. 05 of 1971.

(f) He submitted that any evidence not supported by pleadings

cannot even be considered by the courts of law. He submitted

that it is well settled that there cannot be any variance between

pleadings and proof. Any finding that is not supported by the

pleadings warrants interference, as it may have been reached in

breach of the principles of natural justice. He submitted that

the impugned judgment and order dated 30.06.1992 deserve to

be set aside on this ground as well.

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(g) The non-joinder of NELC Pvt Ltd as a defendant in Title Suit

No. 05 of 1971 was not fatal to its maintainability or to the

grant of any relief, including the relief to set aside the

fraudulent Instrument of Transfer dated 10.02.1968. He

submitted that the fraudulent instrument created no rights or

interest in favour of NELC Pvt Ltd. In any event, since Title

Suit Nos. 05 of 1971 and 11 of 1971 were being tried together,

and NELC Pvt Ltd was one of the plaintiffs in Title Suit No.

11 of 1971, it could claim no prejudice from its non-joinder in

Title Suit No. 05 of 1971. Accordingly, impleadment of NELC

Pvt Ltd in Title Suit No. 05 of 1971 was not necessary, more

so since all the directors of NELC Pvt Ltd had been impleaded

as defendants in Title Suit No. 05 of 1971.

23. In the context of L.P.A. No. 80 of 1992, Mr Rajeeva Sharma made

the following submissions: -

(a) He submitted that the learned Single Judge, having held that

the Instrument of Transfer dated 10.02.1968 did not transfer

any of the trust properties to NELC Pvt Ltd, could not, at the

same time, have decreed Title Suit No. 11 of 1971, in which

NELC Pvt Ltd had sought a declaration of title and

ownership in respect of the trust properties, or have issued

any permanent injunction at the behest of NELC to

permanently injunct the appellants, who are the beneficiaries

of the SMNC Trust, from even entering upon the trust

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properties, which include churches and other places of

worship;

(b) The learned Single Judge failed to appreciate that the Trial

Court, in deciding Title Suit No. 11 of 1971, could never

have decreed in favour of NELC Pvt Ltd, because by an

earlier judgment and decree dated 28.06.1985 in Title Suit

No. 05 of 1971, the Trial Court had set aside the transfer

deed dated 10.02.1968. He submitted that NELC’s entire

case was based on the transfer deed dated 10.02.1968. Once

that transfer deed was set aside, there was no question of the

Trial Court decreeing Title Suit No. 11 of 1971.

(c) Accordingly, Mr Sharma submitted that the decree dated

28.06.1985 in Title Suit No. 05 of 1971 deserves to be

restored and the decree dated 05.02.1986 in Title Suit No.

11 of 1971 deserves to be reversed. He submitted that the

common judgment, decree and order dated 30.06.1992

passed by the learned Single Judge deserve to be interfered

with.

24. Mr Sharma filed a synopsis and written arguments, which were

taken on record. However, we note that all the contentions he urged

have been set out hereinabove, and in addition to those contentions

or grounds, no other contentions or grounds were urged or pressed

before us, even though the appeal memos and the synopsis may

have referred to several contentions or grounds.

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25. Mr Sharma relied upon the following decisions in support of his

contentions in both the Letters Patent Appeals: -

(i) Bachhaj Nahar Versus Nilima Mandal, (2008) 17 SCC

491,

(ii) Sk. Abdul Kayum Versus Mulla Alibhai, 1962 SCC

OnLine SC 159

(iii) Princes Famita Fauzia and another Versus Syeed Ul-

Mulk Alias Nawab Saheb Chathari & Others, [1979] 1

APLJ 264,

(iv) Shree Shree Gopal Shreedhar Mahadeb Versus

Shasheebhushan Sarkar, 1932 SCC OnLine Cal 118

(v) Bonnerji Versus Sitanath Das, (1921) I.L.R. 49 Calc. 325;

L.R. 49 I.A. 46

Mr SUDHIR KUMAR SHARMA’s CONTENTIONS

26. By order dated 14.07.2026, we disallowed the intervention

application, being I.A. No. 11821 of 2024, in L.P.A. No. 80 of

1992. However, we heard Mr Sudhir Kumar Sharma on the points

of law he urged in support of L.P.A. No. 80 of 1992.

27. Mr Sudhir Kumar Sharma submitted that the provisions of the

Indian Trusts Act, 1882 apply only to private trusts and their

trustees. He further submitted that SMNC was a public trust

governed by the Trust Deed dated 21.04.1880, together with the

schemes formulated by the Court in Title Suit No. 01 of 1914. He

therefore submitted that the Trial Court and the learned Single

Judge grossly erred in applying the provisions of the Indian Trusts

Act, 1882 to these matters.

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28. Mr Sudhir Kumar Sharma submitted that Article 62(e) of the Indian

Stamp Act, 1899, contemplates the transfer of trust property

without consideration from one trustee to another trustee or from a

trustee to a beneficiary. Therefore, he submitted that the Instrument

of Transfer dated 10.02.1968 made by the Trustees of SMNC to the

Trustees of NELC Pvt Ltd was incompetent under Article 62(e) of

the Indian Stamp Act, 1899. He insisted that NELC Pvt Ltd was

also a public trust and not a private limited company under the

Indian Companies Act, 1956. Therefore, he submitted that the

Instrument of Transfer dated 10.02.1968 was void ab initio.

29. Mr Sudhir Kumar Sharma submitted that NELC Pvt Ltd, which,

according to him, was a public trust, was not a necessary party to

Title Suit No. 05 of 1971, and that the learned Single Judge erred in

dismissing Title Suit No. 05 of 1971 on the ground of non-joinder

of NELC Pvt Ltd.

30. Accordingly, Mr Rajeeva Sharma and Mr Sudhir Kumar Sharma,

though on different grounds, submitted that both LPAs must be

allowed, that the Trial Court’s judgment and decree dated

28.06.1985 in Title Suit No. 05 of 1971 be restored, and that Title

Suit No. 11 of 1971 be dismissed.

RESPONDENTS’ CONTENTIONS

31. Mr Anil Kumar, the learned Senior Advocate for the respondents in

both these appeals, defended the impugned common judgment,

decree and order dated 30.06.1992 disposing of First Appeal Nos.

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564 of 1985 and 197 of 1986 based upon the reasoning reflected

therein.

32. Mr Anil Kumar submitted that the relief to declare the Instrument

of Transfer dated 10.02.1968 as invalid and illegal ab initio was not

at all maintainable in a suit purportedly instituted under Section 92

of the CPC. He submitted that in any event, after the Trial Court

denied the relief of formulation of a scheme and removal of the

trustees, Title Suit No. 05 of 1971 ceased to be a suit under Section

92 of CPC and should have been dismissed without even going into

the issues of legality and validity of the Instrument of Transfer

dated 10.02.1968.

33. Mr Anil Kumar submitted that, in any event, if, according to the

appellants, the Instrument of Transfer dated 10.02.1968 had

transferred the SMNC Trust properties to NELC Pvt Ltd, and the

plaintiffs sought to have those properties transferred or restored to

SMNC Trust, then NELC Pvt Ltd was a necessary party to Title

Suit No. 05 of 1971. Without impleading NELC Pvt Ltd as a

defendant, Title Suit No. 05 of 1971 could not have been decreed.

The finding to this effect by the learned Single Judge is correct and

warrants no interference.

34. Mr Anil Kumar submitted that in the plaint of Title Suit No. 05 of

1971, the plaintiffs had pleaded in paragraph 25 that a cause of

action for the suit arose on 10.02.1968, when the Trust properties

were transferred to NELC Pvt Ltd contrary to the terms and

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conditions of a Trust and also on subsequent dates when various

other acts of breach of trust in respect of the said Trust, generally

known as SMNC, were and are still being committed by the

defendants.

35. Mr Anil Kumar submitted that Title Suit No. 05 of 1971 was filed

only on 04.06.1971. Accordingly, he submitted that the same was

ex facie barred by limitation. In any event, the prayer for declaring

the Instrument of Transfer dated 10.02.1968 as illegal and void was

ex facie barred by the law of limitation, since the same was not filed

within three years from the date when the alleged right to sue first

accrued. He submitted that it was the duty of the Court to have

dismissed Title Suit No. 05 of 1971 given the provisions of Section

3 of the Limitation Act, 1963.

36. Mr Anil Kumar submitted that the learned Single Judge correctly

held that the Instrument of Transfer dated 10.02.1968, when

properly constituted, was merely a document appointing new

trustees and effecting the transfer of trust properties from one Body

of Trustees to another. He submitted that this was permissible under

the law and under the 1880 SMNC’s Trust Deed. He submitted that

there was no breach of any of the provisions of the Indian Trusts

Act, 1882, including Sections 47 and 48 now invoked by the

appellants.

37. Mr Anil Kumar admitted that the Instrument of Transfer dated

10.02.1968 was not a transfer of property under the Transfer of

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Property Act, 1882, but rather an instrument appointing a new

trustee. He submitted that NELC Pvt Ltd was a company

incorporated under the Indian Companies Act, 1956 and

consequently a legal person. He submitted that there is no bar to a

legal person like a company being appointed as the trustee. No such

case was ever pleaded or even urged by the appellants-plaintiffs.

38. Mr Anil Kumar submitted that a ‘Trust’ per se is not a legal person.

Therefore, in respect of a Trust or its property, it is always the

Trustees who sue or are sued. He therefore submitted that Title Suit

No. 11 of 1971, which was instituted by the then-existing and the

new Trustees, was perfectly competent and correctly decreed by the

Trial Court, and that such decree was correctly affirmed by the

learned Single Judge in the impugned common judgment, decree

and order dated 30.06.1992.

39. Mr Anil Kumar submitted that the contentions now raised by Mr

Sudhir Kumar Sharma were never raised by the appellants either

before the Trial Court, the First Appellate Court or in the LPA. He

submitted that if Mr Sudhir Kumar Sharma’s arguments about

inapplicability of the Indian Trusts Act, 1882 are to be upheld, then

there is no question of even considering the arguments based on

Sections 47 and 48 of the said Act as were urged by Mr Rajeeva

Sharma, the learned Senior Advocate for the appellants.

40. Mr Anil Kumar submitted that the argument based on Article 62(e)

of the Stamp Act was also never raised before the Trial Court, the

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First Appellate Court and in the LPA. In any event, such argument

is entirely misconceived because it proceeds on the premise that

NELC Pvt Ltd was not a private limited company incorporated

under the Indian Companies Act, 1956, but that it was a Trust. He

submitted that such a plea runs counter to the pleading in Title Suit

No. 05 of 1971 wherein it was the categorical case of the plaintiffs

that NELC Pvt Ltd was a private limited company.

41. Mr Anil Kumar also submitted a synopsis of the arguments on

behalf of the respondents in the two appeals, covering, inter alia,

the contentions referred to hereinabove.

POINTS FOR DETERMINATION IN THESE APPEALS

42. Based on the rival contentions, the following points for

determination arise in these LPAs:

(i) Whether Title Suit No. 05 of 1971 under Section 92 of the

CPC was maintainable and properly instituted?

(ii) Whether Title Suit No. 05 of 1971 or, in any event, the

relief to declare the Instrument of Transfer dated

10.02.1968 as illegal, null and void was barred by

limitation, even though the bar of limitation had not been

set out as a defence by the defendants to the said suit?

(iii) Whether Title Suit No. 05 of 1971 warranted dismissal for

non-joinder of NELC Pvt Ltd?

(iv) Whether the First Appellate Court travelled beyond the

pleadings in the defendants’ written statement in Title

Suit No. 05/1971, and whether the finding that the

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Instrument of Transfer dated 10,02,1968 did not transfer

the Trust’s properties to NELC Pvt. Ltd, or that it was

only a transfer from one body of trustees to another, was

vitiated?

(v) Whether there was any illegality or infirmity in the

Instrument of Transfer dated 10.02.1968 warranting a

declaration as to its illegality and inoperativeness?

(vi) Was Title Suit No. 11 of 1971 not maintainable because it

was not instituted by the SMNC Trust, which was the

owner of the Trust properties in respect of which the

declaration was sought?

(vii) Whether the Trial Court was justified in decreeing Title

Suit No. 11 of 1971 after decreeing Title Suit No. 05 of

1971 and holding that the Instrument of Transfer dated

10.02.1968 was illegal, inoperative and not binding on the

plaintiffs in Title Suit No. 05/1971, who were the

defendants in Title Suit No. 11/1971??

(viii) Consequently, was the First Appellate Court justified in

dismissing First Appeal No. 197 of 1986, thereby

affirming the patently illegal decree dated 05.02.1986

passed by the Trial Court in Title Suit No. 11 of 1971?

EVALUATION OF RIVAL CONTENTIONS AND

DETERMINATION OF THE POINTS IN THESE APPEALS

43. We now proceed to determine the above-referred points, though

there is bound to be some overlap in the points for determination in

the two appeals.

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SECTION 92 CPC ISSUE

44. The first point to be determined is whether Title Suit No. 05 of

1971 was maintainable and properly instituted under Section

92 of the CPC.

45. Admittedly, the Trial Court decreed Title Suit No. 05 of 1971,

overruling the defendants’ objections that the suit did not satisfy the

conditions of Section 92 CPC.

46. The First Appellate Court, in its impugned common judgment,

order and decree dated 30.06.1992, did not clearly hold that the

suit, as instituted, was incompetent. But it held that once the two

reliefs, i.e., the formulation of a scheme to administer the SMNC

trust and the removal of the then-existing trustees, were declined

for failure to establish any breach of trust, the remaining relief to

declare the Instrument of Transfer dated 10.02.1968 as illegal, null

and void, could not have been granted in such a suit.

47. The contention now raised by Mr Anil Kumar about maintainability

of the suit under Section 92 CPC was considered and partly rejected

by the learned Single Judge in paragraphs 24 and 25 of the

impugned common judgment, decree and order dated 30.06.1992.

Paragraph 24 refers to the contentions and paragraph 25 rejects

such contentions.

48. Therefore, the contents of paragraph 25 are transcribed below for

the convenience of reference: -

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“25. It is difficult to accept the latter submission. The relevant

part of sub-section (1) of section 92 is in the following terms:-

“In the case of any alleged breach of any express or

constructive trust. ....or where the direction of the court

is deemed necessary for the administration of any such

trust….”

(emphasis added)

In view of the wording of the provision, for invoking the

jurisdiction of the court under section 92, it would be sufficient

if facts are stated alleging breach of express or constructive

trust or, in the alternative, seeking direction of the Court for the

administration of the trust. It is well known that the jurisdiction

of the Court is normally determined on the basis of the

averments in the plaint. Thus, if such an allegation or averment

is made in the plaint, it is enough to give jurisdiction to the

court. Whether failure to prove the allegation would render the

suit not maintainable was answered by a Division Bench of the

Punjab & Haryana High Court in Sohan Singh Vs. Achhar

Singh (AIR 1968 Punjab & Haryana, 463) in these words:-

“If once the Court has jurisdiction, it is not always

necessary that a breach of trust must be proved as a

condition precedent for the grant of any relief

contemplated by section 97.”

I am in respectful agreement with this view. In Mt. Ali Begam v.

Badr-ul-Islam Ali Khan (AIR 1938 Privy Council. 184), relied

upon by Mr.Asghar Hussain, it was held that once a suit under

section 92 is validly instituted, it is a representative suit subject

to all the incidents affecting suits in general and representative

suits in particular. But the question for consideration is whether

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the averments made in the plaint of T.S. No.5 of 1971 do

constitute ‘alleged breach of trust’ so as to bring the suit within

the pale of section 92.”

49. No doubt, the First Appellate Court held that the averments in the

plaint of Title Suit No. 05 of 1971, even if taken at their face value,

do not make out any case of “breach of trust”. Therefore, the First

Appellate Court suggests that, although the suit could not have been

rejected on the ground of maintainability, no case had been made

out to decree the suit by exercising jurisdiction under Section 92

CPC.

50. The First Appellate Court held that the two main reliefs, namely the

formulation of a scheme for the administration of the trust and the

removal of the existing trustees, which clearly relate to Section 92

CPC, were not granted even by the Trial Court. The appellants

herein, who were the plaintiffs in Title Suit No. 05 of 1971, failed

to file any cross-objections challenging the denial of these reliefs.

Therefore, the suit, which sought only to declare the Instrument of

Transfer dated 10.02.1968 illegal, null and void, could not have

been decreed when the appellants invoked the jurisdiction under

Section 92 of the CPC.

51. It is well settled that the foundation of a suit under Section 92 of the

CPC is a breach of trust by the trustees or the mismanagement of

the properties held in trust. However, to determine maintainability,

the allegations in the plaint must be considered. Based on those

allegations, we cannot hold that the suit was not maintainable or

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that it was not properly constituted or instituted. The procedural

formalities prescribed under Section 92 of the CPC were duly

complied with. But a finding that the suit was maintainable or

properly constituted or instituted is never sufficient to decree the

same. The veracity of the allegations needs to be ascertained before

any relief can be granted.

52. The Trial Court and the First Appellate Court have denied the

reliefs, namely the formulation of a scheme for the administration

of the trust and the removal of the existing trustees. These were the

two principal reliefs, which clearly related to a suit under Section

92 CPC. They were sought on the premise that the existing trustees

had breached the trust and mal-administered the properties held in

trust.

53. The question therefore was whether, after denying the two principal

reliefs, the Trial Court could have issued a declaration that the

Instrument of Transfer dated 10.02.1968 was illegal, null and void?

54. The Trial Court, without answering the above question, proceeded

to declare the Instrument of Transfer dated 10.02.1968 illegal and

null and void. The First Appellate Court held otherwise, as is

evident from the reasoning in the impugned judgment and order

dated 30.06.1992.

55. The First Appellate Court, after a detailed analysis of the 1880

Trust Deed, the schemes formulated by or with the leave of the

Courts, supplementary trust deeds/polls, has held that the charge of

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breach of trust or maladministration of the properties held in trust

was not established.

56. The First Appellate Court also analysed the scope of the Instrument

of Transfer dated 10.02.1968 and held that it did not constitute a

transfer of property within the meaning of the Transfer of Property

Act, 1882, but rather a transfer from one Body of Trustees to

another Body of Trustees under Article 62(e) of the Indian Stamp

Act.

57. Based on this analysis and reasoning, the First Appellate Court held

that the relief to declare the Instrument of Transfer dated

10.02.1968 illegal, inoperative and not binding on the plaintiffs

could not be granted in Title Suit No. 5/1971.

58. In Swami Parmatmanand Sarswati Vs. Ramji Tripathi, AIR

1974 SC 2141, it was observed that a suit of special nature under

section 92, which pre-supposes existence of public trust of religious

and charitable character, can proceed only on the allegation that

there was breach of such trust or that the direction of the court is

necessary for administration of the trust and the plaintiffs must pray

for one or more of the reliefs that are mentioned in the section.

59. In Swami Parmatmanand Sarswati (supra), the Hon’ble Supreme

Court explained what should be done in a case where allegation of

breach of trust is not proved in a suit under Section 92 CPC, in the

following words: -

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“It is, therefore, clear that if the allegation of breach of

trust is not substantiated or that the plaintiff had not made

out a case for any direction by the Court for proper

administration of the trust, they very foundation of a suit

under the section would fail; and, even if all the other

ingredients of a suit under section 92 are made out, if it is

clear that the plaintiffs are not suing to vindicate the right

of the public but are seeking a declaration of their

individual or personal rights of the individual or personal

rights of any other person or person in whose they are

interested, then the suit would be outside the scope of

Section 92…… A suit whose primary object or purpose is to

remedy the infringement of an individual right or to

vindicate a private right does not fall under the section.”

60. Similarly, in R.M. Narayana Chettiar and Another Vs. N.

Lakshmanan Chettiar and Others, (1991) 1 SCC 48, the Hon’ble

Supreme Court, in the context of Swami Parmatmanand Sarswati

(supra), held that to see whether the suit falls within the ambit of

Section 92 CPC, only the allegations in the plaint should be looked

into in the first instance. But, if, after the evidence is taken, it is

found that the breach of trust alleged has not been made out and

that the prayer for direction of the court is vague and is not based

on any solid foundation of fact or reason but is made only with a

view to bring the suit under the section, then such a suit must be

dismissed.

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61. In the present case, as noted earlier, the pleadings do suggest that

the plaintiffs’ foundation was alleged breach of trust by the

defendants-trustees. Based upon this foundation, the two reliefs

contemplated under Section 92 CPC were sought, namely, settling a

scheme, and removal of the existing trustees. The third relief, which

was introduced by way of amendment of the plaint, related to the

Instrument of Transfer dated 10.02.1968. This was also founded on

the alleged breach of trust by the existing trustees in allegedly

transferring the Trust properties to NELC Pvt Ltd.

62. Even the Trial Court denied the relief of settling the scheme or

removal of the existing trustees. This implies that the plaintiffs’

case of breach of trust was not accepted even by the Trial Court.

The denial of the relief of settling a scheme or removing the

trustees, based on the finding that there was no breach of trust, was

never challenged by the appellants/plaintiffs, either by filing any

cross-appeals, or cross-objections in First Appeal No. 564 of 1985.

The said finding and denial of relief of settling a scheme or

removing the trustees, therefore, attained finality qua the

plaintiffs/appellants herein.

63. In such circumstances, we fail to understand how the Trial Court

could have proceeded with Title Suit No. 05 of 1971 under Section

92 of CPC and proceeded to declare the Instrument of Transfer

dated 10.02.1968 as illegal, inoperative and not binding on the

plaintiffs. The Trial Court failed to appreciate that this was not a

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suit simplicitor for declaring only the Instrument of Transfer dated

10.02.1968 as illegal, inoperative, and not binding on the plaintiffs

for the reasons alleged in the plaint. In that sense, there is a

contradiction in the judgment and decree of the Trial Court dated

28.06.1985 in Title Suit No. 05 of 1971.

64. Thus, Title Suit No. 05/1971 was maintainable, properly constituted

and instituted. However, the relief to formulate a scheme for the

administration of the Trust or its properties, or to remove its

existing trustees, was correctly denied. Further, no case was made

out for the relief to declare the Instrument of Transfer dated

10.02.1968 illegal, inoperative and not binding upon the plaintiffs.

The first point for determination is answered accordingly.

LIMITATION ISSUE

65. The second point for determination is whether Title Suit No. 05

of 1971, or, in any event, the relief to declare the Instrument of

Transfer dated 10.02.1968 illegal, null and void, was barred by

limitation, even though the defendants to the said suit had not

pleaded limitation as a defence?

66. The Trial Court did not address the limitation issue, perhaps

because limitation was not pleaded as a defence in the defendants’

written statement in Title Suit No. 05 of 1971. The First Appellate

Court noted the limitation contention but held that, since there were

other substantial grounds for reversing the Trial Court’s judgment

and decree, the limitation issue need not be decided. Mr Anil

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Kumar has again raised the limitation issue, contending that he will

rely only on the pleadings in the plaint and the law on the subject.

67. At least prima facie, we do not think that the limitation bar was

attracted to the reliefs for the formulation of a scheme for the

administration of the trust and the removal of the existing trustees.

However, there is some problem with the relief to declare the

Instrument of Transfer dated 10.02.1968 illegal, null and void given

the pleadings in the plaint and the relevant provisions and Articles

in the Limitation Act, 1963.

68. Section 3 of the Limitation Act, 1963 provides that it shall be the

duty of the Court to dismiss a suit instituted beyond the prescribed

period of limitation, whether or not the bar of limitation has been

set up as a defence.

69. No doubt, when the limitation bar is not raised before the Trial

Court, the Appeal Courts are reluctant to consider such an issue,

particularly where it involves the adjudication of facts or mixed

questions of law and fact. But since the duty to examine the

limitation issue is cast on the Court, the Appeal Courts cannot be

precluded from considering it, particularly when it does not involve

the adjudication of facts or mixed questions of law and fact.

70. In paragraph 25 of the plaint in Title Suit No. 05/1971, the

Plaintiffs (present Appellants), have pleaded as follows:

“25. That the cause of action for this suit arose on

10.2.1968, when he Trust properties were transferred to the

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Trust Association of the N.E.L.C. contrary to the terms and

conditions of the Trust and also on subsequent dates when

various other acts of breach of trust in respect of the said

trust, generally known as the Santhal Mission of the

Northern Churches, were and are still being committed by

the defendants. Part of the Trust Properties being situate in

Dumka, Benagaria, Mohulpahari, Karikadar, Koraiya,

Chandarpura, Masnia, Kaerabani, Saphadaha, Sal

Dhorompur, Majdiha, Bhalsumia, Maharo, Rajpakhar,

Basethkundi, Haripur and Hathi Bara, all in the District of

Santhal Parganas, this Court has jurisdiction to entertain

this suit.”

71. The limitation period for seeking a declaration that the Instrument

of Transfer dated 10.02.1968 is illegal, inoperative and not binding

on the plaintiffs is governed by Article 58 of the Schedule to the

Limitation Act. This article provides that the period of limitation

for obtaining any other declaration shall be three years from the

date on which the right to sue first accrues.

72. If, according to the plaintiffs (present appellants), the right to sue

regarding the Instrument of Transfer dated 10.02.1968 arose on

10.02.1968, then the suit, which was instituted on 04.06.1971, was

barred by limitation. Article 58 refers to the expression “when the

right to sue first accrues.” Therefore, the pleadings that the cause

of action also arose on subsequent dates cannot come to the aid of

the plaintiffs (present appellants).

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73. If Article 113 of the Limitation Act, which contains the residual

provisions, applies, even then, the period of limitation would be

three years, from when the right to sue accrues. At least, in the

context of reliefs, qua the Instrument of Transfer dated 10.02.1968,

there are no pleadings about the cause of action accruing on

subsequent dates. The reference to subsequent dates is clearly in the

context of allegations of breach of trust and to sustain the reliefs of

formulating a scheme to administer the trust properties and to

remove the existing trustees.

74. Again, the cause of action is stated to have arisen on 10.02.1968,

and the suit is admitted having been instituted on 04.06.1971, i.e.

beyond the prescribed three-year period from the date of accrual of

the cause of action.

75. Incidentally, we must note that in the suit as originally instituted, no

relief was sought to declare the Instrument of Transfer illegal. Such

relief was sought by an application dated 06.01.1972 to amend the

plaint. This amendment was allowed much later.

76. However, even if we were to accept Mr Rajeeva Sharma’s

contention that it relates back to the date of institution of the suit,

the relief regarding the Instrument of Transfer dated 10.02.1968

was still barred by limitation, given the pleadings in paragraph 25

of the plaint and the provisions contained in Section 3 of the

Limitation Act read with Article 58 and/or 113 of the Schedule to

the Limitation Act, 1963.

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77. Neither in the written statement nor before the Trial Court, the plea

that Title Suit No. 05 of 1971 was barred by limitation, or at least

the relief regarding the Instrument of Transfer dated 10.02.1968,

was barred by limitation, appears to have been raised. Therefore, it

was contended by Mr Rajeeva Sharma that we should not delve into

this issue of the suit being barred by limitation or the relief

regarding the Instrument of Transfer dated 10.02.1968 being barred

by limitation.

78. In this case, the Trial Court did not address the issue of limitation at

all, possibly because it was not raised. As noted earlier, the

provisions of Section 3 of the Limitation Act, 1963, do not absolve

a court from the requirement of considering the issue of limitation,

even though the same may not have been raised by way of defence

by the defendants.

79. Before the First Appellate Court, the issue of limitation was

squarely raised in First Appeal No. 564 of 1985. However, in

paragraph 28 of the impugned judgment, decree and order dated

30

th

of June 1992, the learned Single Judge, after noting several

points on which First Appeal No. 564 of 1985 deserved to succeed,

observed: -

“Since F.A. No.564 of 1985 arising therefrom has to

succeed on these grounds alone, it is not necessary to

examine the only remaining question, namely,

limitation.”

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80. Again, given the provisions of Section 3 of the Limitation Act, and

the law on the subject, the First Appellate Court was required to

answer all the issues, including that of limitation.

81. Upon considering the pleadings in the plaint in Title Suit No. 05 of

1971, including, in particular, the averments in paragraph 25 of the

plaint, it is apparent that Title Suit No. 05 of 1971, based upon the

statement in the plaint itself, was barred by limitation at least

insofar as the relief to declare the Instrument of Transfer dated

10.02.1968 as illegal, inoperative and not binding on the plaintiffs

to the said suit. Since that was the only relief granted by the Trial

Court in Title Suit No. 05 of 1971, the Trial Court’s decree

warranted reversal, even on the ground of bar of limitation.

82. In Draupadi Devi & Ors vs. Union of India & Ors, AIR 2004 SC

4684, the Hon’ble Supreme Court has held that the Court would be

bound to dismiss the suit if it is found that, “on the plaintiff’s own

pleading his suit is barred by limitation. When the plaintiff does not

plead clearly as to when the cause of action arose and the

defendant also did not raise the plea of limitation, if evidence is

found is that the suit is barred, the Court is bound to dismiss the

suit.”

83. Since the plea of limitation was raised for the first time before the

First Appellate Court, we have not adverted to any material, other

than the pleadings/statements in paragraph 25 of the plaint. As was

held in Draupadi Devi & Ors (supra), where on the plaintiffs’ own

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pleadings the suit is bound to be barred by limitation, the court is

bound to dismiss the suit.

84. In Kamlesh Babu & Ors Vs. Lajpat Rai Sharma & Ors, (2008)

12 SCC 577, the Hon’ble Supreme Court was concerned with the

situation where the plea of limitation was not raised before the First

Appellate Court or the High Court but was sought to be raised in

the Special Leave Proceedings under Article 136 of the

Constitution.

85. The Hon’ble Supreme Court held at paras 21, 22 and 23 that if the

plea of limitation is a mixed question of law and fact, the same

cannot be raised at the appellate stage. However, if there was no

dispute on facts, then, given the provisions in Section 3(1) of the

Limitation Act, and even Order 7 Rule 11(d) of CPC, which casts a

mandate upon the court to reject a plaint when the suit appears from

the statement in the plaint to be barred by any law, in this case by

the law of limitation, then, such a plea can be entertained.

86. The Hon’ble Supreme Court cited with approval the decision of the

Privy Council in Lachhmi Sewak Sahu Vs. Ram Sup Sahu, AIR

1944 Privy Council 24, wherein it was held that a plea of limitation

is prima facie admissible even in the court of last resort, although it

had not been taken in the lower courts. The Hon’ble Supreme Court

explained that the reasoning behind the said proposition was that

certain questions relating to the jurisdiction of a Court, including

limitation, go to the very root of the Court’s jurisdiction to entertain

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and decide a matter, as otherwise, the decision rendered without

jurisdiction would be a nullity.

87. In Rajendra Singh & Ors Vs. Santa Singh & Ors, (1973) 2 SCC

705, the Hon’ble Supreme Court held that it was the duty of the

Court, in view of Section 3 of the Limitation Act, to apply the bar

of limitation, whereon patent facts, it is applicable even though not

specifically pleaded.

88. In Manindra Land and Building Corporation Vs. Bhutnath

Banerjee and Ors, AIR 1964 SC 1336, the Hon’ble Supreme

Court reiterated that under Section 3 of the Limitation Act, it is the

duty of the Court not to proceed with the application if it is made

beyond the period of limitation prescribed.

89. A plea of limitation may be raised for the first time in a First

Appeal (Dhanji Jairam Mali Vs. The Secretary of State for

India, AIR 1921 BOM 381, or in a Second Appeal (Narsingha

Bana Goswami vs. Pralhodman Tevari, ILR 48 Cal 455, and

Siddalingaiah Vs. H.K. Kariappa, 2009 AIHC 1202 (Karn)). A

plea of limitation, though not raised in the Trial Court, can be raised

in a Second Appeal, and it is the duty of the Court to examine the

question of limitation irrespective of the fact that the same was not

raised in the suit before the Trial Court. There cannot be any waiver

of the provisions of limitation. However, when limitation is pleaded

in an appeal for the first time, all facts necessary to support the plea

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must be apparent on the record (Hem Chandra Roy Chowdhury

Vs Srimati Biraja Sundari Chowdhurani, AIR 1923 Cal 283).

90. An Appellate Court is entitled to decide a point of limitation even if

the respondent has not brought it up (Tiku Vs. Kripa, AIR 1952

Bilaspur 12). Whether limitation is raised or pleaded or not in the

Trial Court, the Appellate Court before which the plea is raised

must take notice of it, if it appears to the Court that the suit is

barred by time (Byomkesh Mukherji Vs. Madhabji Mepa Maru,

AIR 1939 Patna 421, and Karim Ismail Vs. Abdul Rahiman, 55

BOM LR 119).

91. Accordingly, the second point for determination is answered by

holding that the only relief granted by the Trial Court regarding

the Instrument of Transfer dated 10.02.1968 in Title Suit No. 05 of

1971 was barred by limitation and consequently, such relief could

not have been granted by the Trial Court.

NON-JOINDER OF NECESSARY PARTY

92. The third point for determination is whether Title Suit No. 05 of

1971 warranted dismissal for non-joinder of NELC Pvt Ltd?

93. In the plaint of Title Suit No. 05 of 1971, it was the appellants’

clear and categorical case that the Instrument of Transfer dated

10.02.1968 had illegally, fraudulently and collusively transferred to

SMNC Trust to NELC Pvt Ltd, which was a private limited

company incorporated under the Indian Companies Act, 1956.

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94. Thus, according to the appellants, the existing trustees of SMNC

Trust were the “transferors” in the Instrument of Transfer dated

10.02.1968 and NELC Pvt Ltd was the “transferee”.

95. Given the above clear and categorical pleadings, it was incumbent

on the appellants/plaintiffs in Title Suit No. 05 of 1971 to have

impleaded the transferee, i.e. NELC Pvt Ltd, as a defendant in that

suit. The declaration sought in the suit, if granted, would have

seriously affected NELC Pvt Ltd and visited civil consequences

upon it.

96. NELC Pvt Ltd was thus a necessary party, without whom Title Suit

No. 05 of 1971 could not have been decreed, and, in any event, no

relief could have been granted to declare the Instrument of Transfer

dated 10.02.1968 illegal or inoperative.

97. The appellants’ contention that, because all the directors of NELC

Pvt. Ltd. had been impleaded as defendants, there was no serious

infirmity in not impleading the company in the suit, cannot be

accepted.

98. It is well settled that the company has its own legal identity,

independent of its shareholders or directors. [See LIC v

ESCORTS, 1986 (1) SCC 264, and DHANSINGH PRABHU V.

CHANDRASHEKHAR, 2026(1) SCC On LINE 1419]. Therefore,

impleading some or even all the directors, without impleading the

company itself, cannot cure the defect of non-joinder of a necessary

party.

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99. Similarly, the contention that because Title Suit Nos. 05/171 and

11/1971 were being tried together, and because NELC Pvt. Ltd.

was one of the plaintiffs in Title Suit No. 11/1971, there was

substantial curing of the defect of non-joinder cannot be accepted.

The First Appellate Court has correctly held in paragraph 27 of the

impugned Judgment, Decree and Order that the two suits were

never consolidated or tried together. Rather, they were tried

separately throughout and disposed of by separate judgments,

decrees, and orders. The records also support this position.

100. Thus, the learned Single Judge was justified in holding that NELC

Pvt Ltd was a necessary party to Title Suit No. 05 of 1971 and, for

want of joinder of the necessary party, the suit could not have been

decreed and the Instrument of Transfer dated 10.02.1968 declared

illegal and inoperative. The third point for determination is

answered in the above terms.

DID THE FIRST APPELLATE COURT TRAVEL BEYOND THE

PLEADINGS IN ALLOWING FIRST APPEAL NO. 564/1985?

101. The fourth point for determination is whether the First

Appellate Court travelled beyond the pleadings in the

defendants’ written statement in Title Suit No. 05/1971, and

whether the finding that the Instrument of Transfer dated

10.02.1968 did not transfer the Trust’s properties to NELC Pvt.

Ltd, or that it was only a transfer from one body of trustees to

another, was vitiated.

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102. Mr Rajeeva Sharma elaborated that there were no pleadings about

the Instrument of Transfer dated 10.02.1968 not transferring or

conveying the trust properties to NELC Pvt Ltd. Therefore, the

finding in the impugned order that the Instrument of Transfer dated

10.02.1968 had recorded only a transfer from one Body of Trustees

to another or that NELC Pvt Ltd was a new trustee, admitted to the

SMNC Trust, travelled beyond the pleadings, and therefore, was

unsustainable.

103. In the plaint as well as in the written statement in Title Suit No. 05

of 1971, the issue of true & correct interpretation or rather the

scope and import of the Instrument of Transfer dated 10.02.1968

was squarely pleaded. This is from a holistic construction of the

pleadings in the suit. Therefore, no argument based on any

allegation of variance between pleadings and proof was raised by

the present appellants before the First Appellate Court. No such

clear grounds have also been raised in the memos of Letters Patent

Appeals.

104. Though Mr Rajeeva Sharma argued that there was violation of

natural justice because of the absence of pleadings, no prejudice

whatsoever has been pleaded or demonstrated by the appellants.

The appellants had full scope to and did argue on the scope and

import of the Instrument of Transfer dated 10.02.1968.

105. According to them, said instrument was nothing but a conveyance

of the SMNC Trust properties by the existing trustees to NELC Pvt

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Ltd. The Trial Court accepted this case and, therefore, referred to

the Instrument of Transfer dated 10.02.1968 as a “conveyance” and

declared the same as illegal, inoperative and not binding on the

appellants and others. The First Appellate Court, however, did not

agree that the Instrument of Transfer dated 10.02.1968 was a

conveyance but held that the same was only a transfer from one

Body of Trustees to another or the admission of a new trustee, in

addition to the existing trustees.

106. In Bachhaj Nahar v. Nilima Mandal & Ors, (2008) 17 SCC 491,

relied upon by Mr Rajeeva Sharma, the Hon’ble Supreme Court

held that no amount of evidence can be investigated upon a plea

which was never put forward in the pleadings. A Court cannot

make out a case not pleaded. Obviously, there can be no dispute

regarding this proposition. However, this is not a case of absence of

pleadings. Rather, both the appellants as well as the respondents

have squarely raised the issue about the true scope and import of

the Instrument of Transfer dated 10.02.1968. Therefore, any

decision or finding thereon cannot be said to be beyond the scope of

the pleadings.

107. In Bachhaj Nahar (supra), the Hon’ble Supreme Court has referred

to its earlier decision in Bhagwati Prasad Vs. Shri Chandramaul,

AIR 1966 SC 735, in which it was held that if a plea is not

specifically made and yet is covered by an issue by implication and

the parties knew that the said plea was involved in the trial, then the

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mere fact that the plea was not expressly taken in the pleadings

would not necessarily disentitled a party from relying upon if it is

satisfactorily proved by evidence.

108. The Hon’ble Supreme Court held that the general rule, no doubt, is

that the relief should be founded on pleadings made by the parties.

But where the substantial matter relating to the title of both parties

to the suit was touched, though indirectly, or even obscurely, in the

issue, and evidence has been led about it, then the argument that a

particular matter was not expressly taken in the pleadings would be

purely formal and technical and cannot succeed in every case.

109. The Hon’ble Supreme Court held that a case not specifically

pleaded can be considered by the court where the pleadings, in

substance though not in specific terms, contain the necessary

averments to make out a particular case, and the issues framed

generally cover the question involved, and the parties proceed on

the basis that such case was at issue and have led evidence thereon.

110. In the present case, there was no dearth of pleadings. The parties

were very much aware of each other’s case, though there may have

been no agreement on the scope and import of the Instrument of

transfer dated 10.02.1968. Therefore, this was not a case of the First

Appellate Court travelling beyond the pleadings. In any event,

considering the law laid down in Bachhas Nahar (supra), relied

upon by the Appellants, this plea cannot be upheld.

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111. Thus, the argument that the findings of the First Appellate Court in

the impugned judgment, decree and order go beyond the pleadings

cannot be accepted. The fourth point for determination is

answered accordingly.

ILLEGALITY OF THE INSTRUMENT OF TRANSFER DATED

10.02.1968.

112. The fifth point for determination is whether there was any

illegality or infirmity in the Instrument of Transfer dated

10.02.1968 warranting a declaration as to its illegality and

inoperativeness?

Conduct of existing trustees, whether Fraudulent, collusive and

Malafide?

113. The appellants contend that the conduct of the existing trustees in

joining NELC Pvt Ltd as co-plaintiffs in Title Suit No. 11 of 1971

was sufficient to conclude mala fides, fraud and collusion in the

execution of the Instrument of Transfer dated 10.02.1968.

114. The arguments about mala fides, fraud and collusion were raised by

the plaintiffs (present appellants) in the context of the reliefs for the

formulation of a scheme to administer the Trust and its properties

and for removal of the existing trustees. Admittedly, these two

reliefs were never granted even by the Trial Court in Title Suit No.

05 of 1971.

115. The denial of such reliefs was not even challenged by the appellants

by filing any cross-objections in First Appeal No. 564 of 1985.

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Therefore, there is no point in once again raising or pressing the

very same pleas in the context of the Instrument of Transfer dated

10.02.1968.

116. Even otherwise, the fact that the existing trustees joined the co-

plaintiffs in Title Suit No. 11 of 1971, by itself, cannot be regarded

as proof of mala fides, fraud or collusion. NELC Pvt Ltd and the

existing trustees explained that the Trust properties which were

vested in the existing trustees also vested in the new trustees, i.e.

NELC Pvt Ltd, by virtue of the Instrument of Transfer dated

10.02.1968. Accordingly, since the appellants and others were

interfering with such properties, they had to file a suit in a

representative capacity to restrain interference.

117. Similarly, even if it is assumed that the properties were divested

from the existing trustees and now vested in the new trustee, i.e.

NELC Pvt Ltd, there was nothing improper in the existing trustees

joining the new trustee as co-plaintiffs in Title Suit No. 11 of 1971.

From such joinder, there was no basis for inferring fraud, mala

fides or collusion.

118. At this stage, it is necessary to note that though the Trial Court had

granted a blanket permanent injunction restraining the defendants in

Title Suit No. 11 of 1971 (present appellants) from interfering with

the Trust properties, such a blanket injunction was modified by the

First Appellate Court by the impugned judgment, decree and order

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by reading it down to conform to the mandate of Article 25 of the

Constitution of India.

119. In fact, Mr Chatterjee, who had appeared for the plaintiffs in Title

Suit No. 11 of 1971, had agreed that no one can be prohibited from

entering the Church, provided the person concerned accepts the

authority of the Church, and that, if necessary, a clarification to this

effect can be made. Accordingly, the First Appellate Court issued

such a clarification in the impugned judgment, decree and order.

Transfer, whether contrary to objects and purposes of 1882 SMNC

Trust and to its subsequent modifications?

120. The Appellants’ next contention that the transfer of the SMNC

Trust properties being contrary to the purposes and objects of the

1882 SMNC Trust and to its subsequent modifications, was

considered in some detail by the First Appellate Court. Even

otherwise, no specific clause of the SMNC Trust Deed of 1882 and

its subsequent modifications was pointed out to elaborate upon this

omnibus contention.

121. Mr Rajeeva Sharma, however, argued that until the mission of 1882

SMNC Trust was completed in all respects, the existing trustees

had no power to either divest themselves of the Trust properties or

to transfer such properties to NELC Pvt Ltd.

122. The above argument rests on a misconstruction of the scope and

import of the Instrument of Transfer dated 10.02.1968. Even

otherwise, the provisions referred to by Mr Rajeeva Sharma must

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be read and construed holistically. One of the missions of the 1882

SMNC Trust was to educate, or (as the wording of the 1882 Trust

Deed states) to civilise the Santals. The suggestion that the existing

trustees must not even admit a new trustee or make provisions for

the Trust to continue to operate even after the demise of the existing

trustees cannot be accepted, nor can it be held to constitute a breach

of any terms or objects of the 1882 SMNC Trust or of its

modifications.

123. The contention that the instrument of transfer divests the SMNC

Trust properties has not been substantiated by reference to proven

facts, the law, or both. The appellants appear to have misconstrued

the instrument’s import and scope. The basic premise of breach of

trust by the trustees or maladministration of the properties held in

trust was also not established, even though the burden of proving it

lay with the appellants. Therefore, we see no good reason or

grounds to interfere with the First Appellate Court’s reasoning or

finding on this issue. As noted earlier, the First Appellate Court has

considered this issue in some detail and upon evaluating the

reasoning, we find no good ground to interfere with the same.

Transfer, whether it breaches Sections 47&48 of the Trusts Act?

124. The appellants next contended that there was a breach of Sections

47 and 48 of the Indian Trusts Act, 1882 involved in the execution

of the Instrument of Transfer because one of the existing trustees

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did not personally sign the Instrument, but his power of attorney

did.

125. Mr Rajeeva Sharma argued that two out of the three existing

trustees are the signatories to the Instrument of Transfer dated

10.02.1968. However, the third, then existing trustee, executed a

Power of Attorney and it is this Attorney who has signed or

executed the Instrument of Transfer dated 10.02.1968. He

contended that the very execution of a Power of Attorney amounts

to delegation of the functions by the trustees which was prohibited

under Sections 47 and 48 of the Indian Trusts Act, 1882.

126. Mr Rajeeva Sharma also argued that there was no evidence that the

three trustees held a meeting or passed any resolution to execute the

Instrument of Transfer dated 10.02.1968. He submitted that the

execution of the Instrument of Transfer dated 10.02.1968 without

there being any formal resolution authorising them to do so vitiates

the Instrument of Transfer dated 10.02.1968.

127. Section 47 of the Indian Trusts Act, 1882 provides that the 1882

Trust provides that a trustee cannot delegate his office or any of his

duties either to a co-trustee or a stranger, unless (a) the instrument

of transfer so provides, or (b) the delegation is in the regular course

of business, or (c) the delegation is necessary, or (d) the

beneficiary, being competent to contract, consents to delegation.

The explanation to this section provides that the appointment of an

attorney or a proxy to do an act merely ministerial, and involving

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no independent discretion, is not a delegation within the meaning of

this section.

128. Section 48 provides that a co-trustee cannot act singly. This means

that when there are more trustees than one, all must join in the

execution of the Trust, except where the instrument of trust

otherwise provides.

129. Mr Sudhir Kumar Sharma also urged that the provisions of the

Indian Trusts Act were not applicable. If this is so, then Mr Rajeeva

Sharma’s argument based on Sections 47 and 48 of the Indian

Trusts Act, 1882, would fail. Thus, there was a contradiction

between the arguments of Mr Sudhir Kumar Sharma and Mr

Rajeeva Sharma, though both were purporting to espouse the cause

of the appellants in L.P.A. No. 80 of 1992.

130. Sections 47 and 48, at least in the facts of the present case, are

required to be considered conjointly. Apart from the fact that the

true scope and import of the Instrument of Transfer dated

10.02.1968 does not amount to delegation by the existing trustees

of their office or any of their duties to a stranger, the explanation to

Section 47 clearly provides that the appointment of an attorney or

proxy to do an act merely ministerial, and involving no independent

discretion, is not a delegation within the meaning of this section.

131. Therefore, the fact that one of the trustees executed a Power of

Attorney, and that it was this Attorney that signed and executed the

Instrument of Transfer dated 10.02.1968, could not have been

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construed as a delegation for purposes of Section 47 of the Indian

Trusts Act, 1882. In this case, there are pleadings backed by

evidence that all the trustees exercised their independent discretion

and together determined that the admission of a new trustee would

be in the interest of the Trust. In such circumstances and based

upon the bare pleadings in the plaint, no breach of Section 47 can

be inferred.

132. Further, in this case, all the co-trustees have not acted singly, but

have joined in the execution of the Instrument of Transfer dated

10.02.1968. In any event, Section 48 of the Indian Trusts Act, 1882

provides that when there are more trustees than one, then all must

join in the execution of the Trust, except where the instrument of

trust otherwise provides. Mr Rajeeva Sharma did not explain how,

in the facts and circumstances of the present case, the provisions in

Section 48 of the Indian Trusts Act, 1882 were at all attracted.

133. In Sheikh Abdul Kayum and Others v. Mulla Alibhai and

Others (supra), the existing trustees delegated all their functions

and powers in favour of the new Body of Men. The Hon’ble

Supreme Court therefore held that this was nothing sort of

abdication in favour of a new Body of Men. The issue involved

before the Hon’ble Supreme Court was not whether the grant of a

Power of Attorney by one of the trustees to execute an instrument

of transfer would amount to delegation for purposes of Section 47

of the Indian Trusts Act, 1882. In fact, such an issue never arose in

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Sheikh Abdul Kayum (supra). Therefore, the said decision would

be of no assistance to the appellants.

134. In Princes Fatima Fauzia and another v. Syeed Ul-Mulk Alias

Nawab Saheb Chathari and others (supra), the Division Bench of

the Andhra Pradesh High Court was concerned with conveyance of

one of the Trust properties. The finding of fact recorded therein was

that some of the trustees, who sold the Trust properties, did not act

reasonably and in good faith, though they may have acted honestly

without any mala fides or corrupt motives. Further, there was a

finding that they did not discharge their statutory duties or perform

their functions, and that they did not exercise their powers

diligently as reasonable prudent men would have dealt with their

own property.

135. In the above case, there was only a contract for sale, but it was

never a concluded contract within the meaning of Section 2(h) of

the Contracts Act. In these facts, inter alia, by referring to Sections

47 and 48 of the Indian Trusts Act, 1882, it was held that the

unconcluded contract for sale of the trust properties was neither

valid nor proper and, therefore, the same would not bind either the

trustees or the beneficiaries. Again, the fact situation in the present

case is completely different and, therefore, this decision cannot

assist the appellants herein.

136. The facts in Bonnerji v. Sitanath Das (supra) are not comparable

to the facts in the present matter. This decision, however, holds that

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neither a trustee nor a person in a representative capacity can

delegate his authority. Consequently, a lease of trust property

would be invalid if it is granted by a person as an attorney for one

who is either a trustee or a manager of the property leased and who

did not negotiate or consider the lease or any of it until it is

executed.

137. There is no evidence that the trustee who had given a Power of

Attorney for the execution of the Instrument of Transfer dated

10.02.1968 failed to exercise his independent discretion alongside

the other two trustees. The facts show that the three existing

trustees acted together, but one of the trustees authorised his

attorney to execute only the Instrument of Transfer.

138. In Shree Shree Gopal Shreedhar Mahadeb (supra), only

Bonnerji v. Sitanath Das (supra) follows. The facts in the said

decision are also not even remotely comparable to the facts in the

present case. Therefore, even this decision cannot assist the case of

the appellants herein.

139. Therefore, in this case, the First Appellate Court, after coming into

close quarters with the reasoning of the Trial Court, was justified in

holding that there was no infirmity or illegality in the Instrument of

Transfer dated 10.02.1968 warranting a declaration as to its

illegality or inoperativeness by the appellants.

140. Similarly, after evaluating the reasoning of the Trial Court and the

First Appellate Court, we are satisfied that the First Appellate Court

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was justified in holding that there was no legal infirmity in the

Instrument of Transfer. The fifth point for determination is

answered accordingly.

Whether Title Suit No. 11 of 1971 was not maintainable because the

same was not instituted by the SMNC Trust?

141. The sixth point for determination is whether Title Suit No. 11 of

1971 was not maintainable because the same was not instituted

by the SMNC Trust, which was the owner of the Trust

properties in respect of which the declaration was sought by the

plaintiffs, i.e. the appellants herein.

142. Mr Rajeeva Sharma argued that no relief could have been granted

in Title Suit No. 11 of 1971 because SMNC Trust, the owner of the

properties forming the subject-matter of the suit, had not filed the

suit. With respect, such an argument cannot be accepted, given the

legal position that a Trust does not have a separate legal existence

of its own, making it incapable of suing or being sued.

143. Such a contention was never raised by the Appellants before the

Trial Court or the First Appellate Court. In any event, it is well

settled that a trust does not have a separate legal existence of its

own and is therefore incapable of suing or being sued.

144. Recently, in Sankar Padam Thapa v. Vijaykumar

Dineshchandra Agarwal, 2025 SCC OnLine SC 2194, the

Hon’ble Supreme Court has held that a trust does not have a

separate legal existence of its own, making it incapable of suing or

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being sued. The obligation to maintain and defend suits is placed on

the shoulders of a trustee and not the trust itself.

145. The Hon’ble Supreme Court, after considering the judgments of the

Kerala, Delhi, Madras, Gujarat, Calcutta and Karnataka High

Courts, affirmed the view taken therein that a Trust is not a ‘legal

entity’ or ‘juristic person’. A Trust is also not like a Corporation

which has a legal existence of its own. The Trust operates through

its Trustees, who are legal entities.

146. Therefore, a Trust, not being a legal person, and the Code of Civil

Procedure not providing any enabling provision for the trust to sue

or for being sued in its name, there was no merit in the contention

that the trust is to be arrayed as a co-nominee party. The arraying of

the trust in its own name is otiose or redundant. It is the trustees

who are to be impleaded to represent the Trust.

147. Mr Sudhir Kumar Sharma urged that NELC Pvt Ltd was also a trust

rather than a private limited company. This is contrary to the

records, and this line of argument was not even supported by Mr

Rajeeva Sharma, the learned counsel for the appellants in L.P.A.

No. 80 of 1992.

148. Therefore, Title Suit No. 11/1971, instituted by the trustees, was

very much competent and could not have been held as not

maintainable because the Trust itself was not one of the plaintiffs to

this suit.

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149. The sixth point for determination is answered in the above

terms.

ABOUT TITLE SUIT NO. 11/1971

150. The seventh point for determination is whether the Trial Court

was justified in decreeing Title Suit No. 11 of 1971 after having

decreed Title Suit No. 05 of 1971 declaring that the Instrument

of Transfer dated 10.02.1968 was illegal and not binding upon

the appellants herein.

151. This point is now only academic. Admittedly, in First Appeal No.

564 of 1985, the First Appellate Court reversed the Trial Court’s

judgment and decree dated 28.06.1985 in Title Suit No. 05 of 1971

holding that the Instrument of Transfer dated 10.02.1968 was

illegal, inoperative and not binding upon the appellants herein.

152. Upon such reversal, there would be no inconsistency between the

judgments, orders and decrees in Title Suit No. 05 of 1971 and Title

Suit No. 11 of 1971. The very basis of Mr Rajeeva Sharma’s

contentions, therefore, fails. The seventh point for determination

is accordingly answered in the above terms.

153. The eighth point for determination is whether the First

Appellate Court was justified in dismissing First Appeal No.

197 of 1986, thereby affirming the patently illegal decree dated

05.02.1986 passed by the Trial Court in Title Suit No. 11 of

1971.

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154. Given the finding on the seventh point for determination, even this

point must be answered against the appellants herein. Once the

decree dated 28.06.1985 in Title Suit No. 05 of 1971 was set aside

by the First Appellate Court in First Appeal No. 564 of 1985, there

was nothing wrong with the First Appellate Court dismissing First

Appeal No. 197 of 1986, thereby affirming the Trial Court’s decree

dated 05.02.1986 in Title Suit No. 11 of 1971.

155. In fact, that was a natural consequence, and no fault can be found

with the First Appellate Court’s judgment, decree and order on this

score. The eighth point for determination is answered

accordingly.

CONCLUSIONS

156. For all the above reasons, we are satisfied that there is no merit in

both these appeals. Consequently, we dismiss these appeals without

any order as to costs. IAs, if any, pending in these appeals will not

survive and are disposed of.

(M. S. Sonak, C.J.)

(Rajesh Shankar, J.)

July 23, 2026

A.F.R.

Manoj/Cp.2

Uploaded on 23.07.2026