Zareena vs Ms Rao Bah

Zareena Vs Ms Rao Bahadur B P Annaswamy Mudaliar Cies Public Charities

Case Details

Case Type	Misc
Filing Number	463/2007
Registration Number	456/2007
Filing Date	12-06-2007
Registration Date	12-06-2007

Decision Date	11th January 2012
Case Status	Case Disposed
Court Number and Judge	1-Cch1 Prl. City Civil And Sessions Judge;
Nature of Disposal	Uncontested--Disposed Otherwise;

Petitioners & Respondents

Petitioner

Zareena, ;

Petitioner Advocate

M.Manjunath;

Respondent Name

Ms Rao Bahadur B P Annaswamy Mudaliar Cies Public Charities, Ms Devanam Constructions Pvt. Ltd., Ms Show more..

Order Details

Order not found.

Final Order Judgement

Order Date

11-01-2012

IN THE COURT OF PRINCIPAL CITY CIVIL AND SESSIONS JUDGE, AT BANGALORE Dated this the 11th day of January 2012 PRESENT Sri.R.B.Budihal, M.Com., LL.B., (Spl.) Principal City Civil & Sessions Judge, Bangalore. Misc.No.456/2007 Petitioners: Smt.Zareema. Wife of Mohammed Ghouse, Aged about 42 years, No.18, 6th C Street, Jogupalya, Ulsoor, Bangalore-560008 Represented by GPA Holder Sri.Shamsheer Ahamed, Son of Late Mohammed Hussain, Aged about 50 years, Presently residing at No.5/1, 5th Main 5th cross, Rahamathnagar, R.T.Nagar Post, Bangalore-560032. [By Sri.M.M.–Adv.] Vs Respondents:- 1. M/s.Rao Bahadur B.P.Annaswamy Mudaliar CIEs Public Charities a Public charitable trust having its office at No.59, Moore Road, Frazer Town, Bangalore-560005, Misc.No.456/20072 Represented by its Trustees. a) Dr.B.A.Ananatharam, President/Trustee b) V.C.Damodaran, Vice-President c) V.P.Manohar, Managing Trustee/Secretary d) Dr.V.S.Santhavadanam, Trustee e) A.R.Dayanand, Trustee f) B.D.Loganathan Trustee g) Dr.Anusham Trustee h) A.Anantharam, Trustee. 2. M/s. Davanam Constructions Pvt. Ltd., A Company incorporated under the Companies Act, having registered office No.148, Surveyor Street, Basavanagudi, Bangalore- 560004, Represented by its Managing Director Mr.D.V.Harish. 3. M/s.Shobha Developers Ltd., A company incorporated under the Companies Act, 1956 having registered office at No.E-106, Sunrise Chambers, Ulsoor Road, Bangalore-42, Represented by its Chief Managing Director Sri.P.N.C.Menon PB No.823, Postal Code No.112, RUWI, Mascot, Sultanate of Oman. Misc.No.456/20073 4. Bruhath Bengaluru Mahanagara Palike, Hudson Circle, Bangalore-560002, Represented by its Commissioner. [R.1(a)(d) to (h):Absent; R.1(b): Dead; R.1(c) :by Sri.HSP-Adv; R.2: By Sri.BRD-Adv; R.3: By Sri.G-Adv; and R.4:By Sri.TG-Adv.] ORDER ON IA.Nos.VII and VIII I.A.No.VII and VIII are filed by the respondents 1 and 3 respectively under the same provision i.e., Order-VII Rule-11 read with Section-151 of Code of Civil Procedure, seeking rejection of the petition. Therefore, these two applications are taken up together to dispose of by this common order. 2. The applications I.A.Nos.7 and 8 are supported by the affidavits, stating that the petitioner has asked for recalling the order granting permission to the respondent No.1 to lease the property. The permission to lease the property has been granted by this court by exercising the power under section-92 of Code of Civil Procedure. Reading of Section-92 of Code of Civil Procedure, shows that while exercising the said power the court cannot Misc.No.456/20074 decide the title of any property with respect to either the Trust or of someone else. The petitioner is contending that she is the owner of the property and she is in possession thereof. She is claiming that pursuant to the orders passed by this court the property would be developed and that the Trust does not have right, title and interest in the property and all the above questions are beyond the jurisdiction of this Court. The contentions that the petitioner is the owner and that the respondent trust has no right are the matters which cannot be tested by this court in exercising the powers under section-92 of Code of Civil Procedure. This court shall proceed on the basis of the averments in the petition and if the trust is trespassing or is ascertaining the right to property that does not belong to the trust the remedy of the aggrieved party is to file civil proceedings and the petitioner who does not claim any interest in the trust cannot be heard to have any say in the petition under section-92 of Code of Civil Procedure. The petitioner by her own statement has stated that she has initiated the required proceedings and cannot proceed with this case. The allegation of rights and liability to the property would not constitute cause Misc.No.456/20075 of action in a proceeding under section-92 of Code of Civil Procedure. The provision of section-92 of Code of Civil Procedure do not provide for adjudication of rights with respect to conflicting claims to property by the Trust and others and as such, this court cannot enter into any adjudication with respect to the points raised by the petitioner. It is also relevant that the petitioner herein has already filed suit OS No.3355/2007 for injunction and the said suit has been filed on 23.04.2007 much earlier to the present petition. This is also reference to in the petition itself. When there is already proceedings as regards the points sought to be urged here, the present petition is not maintainable. It is also relevant to note that the present petition is filed by Zarina while her contention is that there are four other owners who are not parties to this petition. In page No.17 para-16 of the plaint in OS No.3355/2007, it is stated that the 3rd and 4th defendants have put up the board on the property, that she is producing the photograph thereby that the defendants have cut the trees and at para-15 has stated that certain trees are fell. By the above statements, the petitioner is not being in possession is admitted. Misc.No.456/20076 Hence the application may be allowed. 3. The petitioner opposed the applications by filing objection statement and the objections in brief are that the applications are not maintainable in law and same are filed with a view to protract the proceedings. The petitioner has filed this Misc. Petition for recall of the order passed in Misc.No.255/2003 dated 27.09.2003 on the grounds that frivolous and strategy played by the trust in obtaining the order under section-34 and 56 of Trust Act, by production of fraudulent and concocted decree copy purported to have been issued by the then District Judge by forging his signature and also manipulated the decree copy in OS No.1/1946 without drawing of the decree by the court and also misrepresented the court that the trust is the registered owner of the property in question. Without production of not even a single title deed, the petitioner being owner of the property now sought for recall of the order passed by this court in permitting them to lease Davanam construction who in turn sub leased the same in favour of Shobha Developers. Without having any ownership on the Misc.No.456/20077 basis of frivolous and concocted decree copy by playing fraud upon the court obtained an order, which is not sustainable in the eye of law and the said act tantamount to contemptuous act and attracts penal provisions of law as they have played fraud upon the court at each stage. In order to destruct the attention of the court the application is filed under Order-7 Rule-11 of Code of Civil Procedure, which deserves to be rejected as the court is finding out the truth of the matter. In the circumstances, the application filed by the respondents may be rejected with exemplary costs in the interest of justice and equity. 4. Heard arguments of the counsel for the petitioner and also counsels for the respondents on the applications IA No.VII and VIII. 5. The counsel for the petitioner during the course of his arguments submitted that there is fraud committed by the respondents against the petitioner and also against the Court itself in obtaining the permission for leasing out the petition schedule properties in favour of respondent No.2. Misc.No.456/20078 The counsel made submission that the petitioner is the owner and titleholder of the petition schedule properties. Even then, suppressing this material fact and making false representation before the court the respondents obtained order in Misc.No.255/2003 for leasing out the petition schedule properties on lease basis to the respondent No.2. The counsel submitted that even now the respondents have not produced the trust deed and when the respondents are claiming their title on the Will, the Will is also not produced before the court for perusal of the court. The counsel has drawn the attention of this court to Sections-6 and 31 of the Indian Trust Act and submitted that in view of these provisions also it is crystal clear that the respondents have played fraud in the earlier proceedings. Counsel further submitted that the title deeds are not at all produced by the respondents to show that the trust is the owner of the property and the trustees are appointed without the permission of the court, which is patently illegal. The counsel submitted that the lease deeds executed by the alleged trustees are also without seeking prior permission of the court. The counsel had drawn the attention of this court to Section-73 Misc.No.456/20079 of the Indian Trust Act. Counsel submitted that in 1949 five trustees were appointed by the court, but subsequently the trustees who have appointed further there is no permission from the court. Even while seeking permission from the court in respect of the petition schedule properties there is fraud committed on the court itself without placing true facts before the court. Counsel submitted that the petitioner purchased the petition schedule properties under three registered sale deeds which are produced before the court and as per the sale deeds it is the petitioner who is the absolute owner over the petition schedule properties and because of the fraud committed by the respondents in respect of the petition schedule properties, rights of the petitioner is affected. Counsel further made submission that the petition averments itself clearly goes to show the cause of action for the petitioner to file the present petition. In this connection, counsel for the petitioner drawn the attention of this court to para-10 of the petition. Counsel submitted that to defeat the title and rights of the petitioner the respondents colluding with each other created more complication in the matter and created Misc.No.456/200710 documents showing sub lease of the petition schedule properties for which transaction there is no permission of the court. Counsel submitted that the description of the property mentioned in the three sale deeds and the property description shown in the schedule to the petition are one and the same and counsel submitted that they are same properties mentioned in the schedule in OS No.1/1946 which clearly goes to show as per Ex.P.13. Counsel submitted that while taking permission from the court for leasing out the properties by respondent No.1 in favour of Respondent No.2 purposely the description of the petition properties were given to the court and by misleading the court, permission was obtained by the respondent. Hence counsel submitted that it is a clear fraud not only on the petitioner but also on the court itself. Hence counsel submitted that there is case made out by the petitioner to be enquired by this court and hence the question of rejecting the petition as requested by the respondent will not arise at all. Hence counsel submitted to reject both the applications. Counsel made submission that the decision relied upon by the other side are not at all made Misc.No.456/200711 applicable to the facts of the present case. In support of his arguments counsel for the petitioner has relied upon the following decisions:- 1 AIR 1969 Supreme Court –823 2 AIR 2005 Supreme Court-1588 3 AIR 2000 Supreme Court-1802 4 AIR 2010 Bombay – 88 5 (1937) 2 MLJ-437 6 AIR 1967 Supreme Court-1044. 7 (1955) 2 SCR 270 8 AIR 1964 Patna –518 9 AIR 1971 Patna-391 10 AIR 1981 Orissa 222 11 AIR 1994 Supreme Court-853 12 1995 Supreme Court-853 13 1995 Supp.4 SEC-100 14 2000(2) Weekly Law Notes-319. 6. The counsel for the respondent No.2 during the course of his arguments submitted that admittedly even according to the petitioner and as per Para-6 of the petition averments there is no dispute that there was a judgment passed by the Misc.No.456/200712 court in respect of the very same properties. The petitioner made false allegation in the petition and the respondents never committed any fraud on the court or on the petitioner. Counsel submitted that on the same set of allegations the petitioner also filed several suits and there is orders earlier to the filing of the present petition and the said suit is still pending and in view of the same, the present petition is not maintainable. The Counsel made submission that in the said suit there is order passed on the interlocutory application on 27.07.2005 and the correctness of the said order was challenged in M.F.A.No.7248/2005 and the Hon’ble High Court disposed of the said M.F.A. by order dated 21.10.2005 which clearly goes to show that the petitioner has no case at all and she has come up before the court filing this petition by making false averments. Counsel further made submission that on the question of title the matter went upto Hon’ble Supreme Court two times and hence the counsel submitted that there is no prima facie case made out by the petitioner to seek any relief at the hands of this court. Counsel submitted that OS No.3355/2007 is still pending. Counsel also made Misc.No.456/200713 submission that the petitioner is neither member of the trust nor beneficiary under the trust and she is totally stranger to respondent No.1 trust. Therefore, she cannot file this petition seeking setting aside of the order passed by this court in the Misc. Petition and the counsel submitted that firstly the petitioner has to file petition seeking permission of this court to file this Misc.Petition and without making such request the petition filed directly before this court, is not maintainable at all. The counsel made submission that the decision relied upon by the counsel for the petitioner in support of his argument are not at all applicable to the facts of the present case. Counsel submitted that the petitioner has absolutely no locus standi to file the present petition and to seek setting aside of the order passed in Misc.Petition. Counsel submitted that it is vexatious proceedings filed by the petitioner, which has to be rejected by imposing heavy cost. 7. The Counsel for the respondent No.1 during the course of his arguments submitted that this is not the forum for the petitioner to file the present petition. Counsel submitted that the petitioner has Misc.No.456/200714 chosen wrong forum to file the present petition. Counsel submitted that though it is the petition not plaint under Order-VII Rule-1 of Code of Civil Procedure, but the provision of Order-VII Rule-11 of Code of Civil Procedure are applicable and this court is having jurisdiction to consider the applications and to reject the petition. Counsel submitted that the judgment and decree passed in OS No.1/1946 is not at all challenged till today. Hence counsel submitted that the judgment and decree passed in OS No.1/1946 attained finality, it is not permissible for the petitioner to malice the false allegations against the respondents. Counsel submitted that the respondent no.1 is the public charitable trust. Hence, counsel submitted that the petitioner has no locus standi to file the present petition and hence submitted to reject the petition. 8. Counsel for the respondent no.3 during the course of his arguments submitted that when Respondent No.1 is a public charitable trust petition alone cannot maintainable. Hence counsel submitted that on this ground itself the petition is not maintainable. Misc.No.456/200715 Counsel for the respondents in support of their contentions relied upon the following decisions:- 1 AIR 1975 Supreme Court-2238 2 AIR 1967 Supreme Court-1044 3 AIR 2000 Supreme Court-1802 4 AIR 1977 Supreme Court-2421 5 AIR 1992 Sikkim Page-1 6 AIR 1985 Orissa-197 7 AIR 2005 Supreme Court-1588 8 AIR 1987 P & H-183 9 AIR 1975 Supreme Court-2238 10 2008(4) S.C.C.-115 11 AIR 2005 Supreme Court-1802 12 AIR 1977 Supreme Court-2421 13 AIR 1992 Sikkim-1 14 AIR 1969 Supreme Court-823. 9. In view of the above, the point that arises for my consideration is :- “Whether the applicants have made out a case to allow the applications- IA.Nos.VII and VIII and to grant the relief as prayed for in the applications?” Misc.No.456/200716 10. My answer to the above point is in the affirmative, for the following:- R E A S O N S 11. I have perused the petition averments, applications-IA Nos.VII and VIII filed by the Respondents 1 and 3 respectively under Order-VII Rule-11 read with Section-151 of the Code of Civil Procedure seeking rejection of the petition. I have also perused the objections filed by the petitioner to the said two applications which are under consideration now and also perused the objections filed by the respondents herein to the main petition filed by the petitioner. I have also perused the decisions relied upon by both sides which are referred to above. I have also perused the documents produced by both sides. 12. It is the contention of the petitioner in the main petition that she is the owner in possession of all the piece and parcel of the property bearing Old Municipal No.6 and 6 St.Marks Road and No.2, Museum Road as well as No.3, St.Mark’s Road having present numbers 28 to 42 Museum Road, No.37 and Misc.No.456/200717 38 Church Street No.49 to 64, St. Marks Road No.15 to 15/3 Madras Bank Road, Bangalore and having C.T.S.No.213 to 234, Bangalore. The entire property was purchased under three different stages under different sale deeds. The said property originally belonged to Mrs.Margarett Traish who sold the same in favour of Messrs.Bertic & Company vide Sale Deed dated 05.10.1869 and this deed was registered in the office of Sub Registrar, Cantonment. Subsequently on 27.10.1870 Mr.John Bertic of Messrs. Bertic and Company sold the same in favour of Hajee Syed Hassan-petitioner’s predecessor-in-title under sale deed registered before the Sub-Registrar, Cantonment and thereafter the petitioner’s predecessor-in-title become the absolute owner with regard to the said property. The second portion i.e., site adjacent to the portion already purchased from Mr.John Bertic by Hajee Syed Hassan which measures on the northern side 405 feet and on the southern side 498 feet and on the eastern side i.e., Museum Road 183 feet and on the western side i.e., St.Mark’s Road side 200 feet which originally belonged to Jessie Van Segne which was mortgaged with the right to sell in favour of Rev. Antony D’Kerosonet and this Misc.No.456/200718 deed was registered before the Sub-Registrar, Civil and Military Station, Bangalore vide dated 20.10.1868. Thereafter a supplementary deed was executed by Jessie Van Segne in forgoing her right to redeem the property and this deed was registered on 03.04.1872, before the Sub Registrar, Civil and Military Station. After enjoyment of the property for more than 15 years that on 08.09.1887 Rev.Antony D’Kerosonet sold the property bearing No.6, St.Marks Road and No.2, Museum Road in favour of Hassan Hajee Joosab and 6 others under Registered Deed of Sale. The major portion of the property on the southern side situated in between Museum Road as well as St.Mark’s Road and other side property purchased from Rev.Antony D’Kerosonet which originally belonged to William Hypolite Daurose who sold the same under the sale deed dated 05.09.1887 in favour of Hassan Hajee Joosab Sait and six brothers under the Registered Document before the Sub-Registrar C & M Station, Bangalore, which is having then Municipal No.3, St.Marks Road. On 08.06.1904 the major portion of the property bearing Old Municipal No.3, St. Mark’s Road having municipal Nos. then 14 to 19 Museum Road- 6 Misc.No.456/200719 premises.The premises No.7 St.Marks Road, popularly known as Cash Bazaar Carriage Works, Premises No.8, St.Marks Road called as Oxford Lodge, Premises No.10, St.Marks Road, known as Sea Fort House ass well as 1/7th Portion of premises No.9, St.Marks Road, known as Cash Bazaar was released in favour of Hajee Oosman Ibrahim Sait by Hassan Hajee Joosab (Yousuff) and others and this release deed was registered before the Sub-Registrar C and M Station, Bangalore. The CTS number assigned to the property by the City Survey Department having CTS No.213-234 is reflected in the certified copy of the sketch. Right from the date of purchase various transaction has been taken place within the family and also certain properties were mortgaged and leased under different registered deeds along with the sketches attached therein which prima-facie shows that the petitioner’s predecessor-in-title were in exclusive possession and enjoyment of the property in question. During the Kilafat movement i.e., in the year 1924 Hajee Oosman Ibrahim Sait bequeathed the properties in favour of his nephew Siddiq Hassan Sait S/o Hassan Hajee Yousuff (Joosab) Sait. In pursuance of the Will dated 01.07.1924 Misc.No.456/200720 Siddiq Hassan Sait was in exclusive possession and enjoyment of the property by exercising ownership throughout. That was on 16.01.1964 Siddiq Hassan Sait gifted the property to his grand son Mansoor Hussain Sait who then minor represented by his father Hafeez Gulam Mohammed Siddick Sait under Memorandum of Hiba dated 16.01.1964, and put the donee in physical possession and enjoyment of the same and right from that day Masoor Hussain Sait exercising ownership right throughout till he gifted the property in the year 1998 by way of oral Hiba i.e. on 27.02.1998 in favour of his cousin sister as well as her children who have been in physical possession and enjoyment of the same by exercising ownership and in pursuance of the oral Hiba as contemplated under Mohammed Law. The said cousin sisters Zareen and others were collecting the rents from the tenants and also leased to different persons i.e., M/s. Ali Bros, Mustafachand and others without any hindrance or disturbance from any one. She has also approached the Bangalore Mahanagara Palike in getting the katha effected in the 1999 onwards and also she has tendered Rs.3,20,000/- as per the demand made by the corporation. In order to Misc.No.456/200721 effectively enjoy the property and also effect katha from the plaintiff obtained declaratory affidavit confirming the oral Hiba effected on 27.02.1998 on 30.01.2003. During the pendency of the Katha application the respondent no.1 approached the Corporation in effecting katha in their name which was successively rejected number of times. The petitioner’s elder son filed a suit for partition in OS No.15053/2005 against the petitioner as well as the corporation as well as Trust as parties in which the corporation has filed written statement to the effect that since the first respondent has not produced any title deeds, the question of issuing katha do not arise at all and also asserted that no katha either holder or otherwise issued in the name of the Trust. Various litigations are pending between the petitioner as well as the first respondent as well as the first respondent as well as their tenants including the Bangalore Mahanagara Palike has ordered amalgamation of katha when katha itself was not in existence which order was challenged by way of filing a Review Petition which is pending before the Joint Commissioner, Bangalore Mahanagara Palike, Bangalore. Since the matter was Misc.No.456/200722 not considered, a writ petition was filed by the petitioner and the corporation has been directed to dispose of the Review petition expeditiously as ordered in W.P.No.53/2007. 13. Looking to the objection statement filed by the respondents they goes to show that the respondent No.1 Trust filed suit OS No.1/1946 for removing two trustees and to appoint other two trustees in their place and also settling the scheme. The said suit was decreed and the scheme was framed in the year 1956. The respondent no.1 trust leased out the properties to M/s. Air Flow Transport (India) Private Ltd., under two registered lease deeds dated 31.08.1956 for a period of 20 years and when the Respondent No.1-Trust asked M/s. Air Flow Transport (India) Pvt. Ltd., to vacate the premises on the ground that they required the same for their bonafide use and occupation and as the said M/s.Air Flow Transport (India) Pvt.Ltd., did not heed to the request of the respondent No.1, the respondent no.1-trust filed two HRC Petition in HRC No.68674/1980 and 6865/1980 and those two HRC Petitions were allowed in favour of the Respondent Misc.No.456/200723 No.1-Trust herein. The orders passed in the said HRC Petitions were challenged by Messrs. Air Flow Transport (India) Pvt.Ltd, by filing HRRP No.6281/1988 and 6282/1988 before the Hon’ble High Court and the Hon’ble High Court dismissed the said petitions. The orders passed in the said H.R.R.Ps. were challenged before the Hon’ble Supreme Court in SLP(Civil)No.11698/1997 and 11699/1997 and the same were dismissed on 19.08.1997. The respondent No.1 Trust also filed another HRC petition before the Small Causes Court against the lessees in HRC No.10844/1989 in respect of the property bearing No.37 and 38 Church Street, and the said HRC petition was allowed, against which HRRP No.1055/1994 was filed which was dismissed by the Hon’ble High Court. 14. It is contended by the petitioner in her objection that, as per the directions given by the Hon’ble High Court in W.P.No.53/2007 her review petition is pending before the Joint Commissioner of Bangalore Mahanagara Palike. The endorsement dated 02.02.2007 issued by the office of Bangalore Mahanaagara Palike, goes to show that as the Misc.No.456/200724 application submitted by the petitioner herein Smt.Zareena is time barred and the same has been rejected. This endorsement is signed by Assistant Revenue Officer, Shanthinagar Sub-Division, Bangalore Mahanagara Palike. Then the elder son of the petitioner herein also filed suit for partition arraying this petitioner as defendant No.1 and also the Respondent No.1 Trust as Defendant No.4 and the Corporation authorities were made as parties in the said suit i.e., OS No.15053/2005 on the file of the City Civil Court, Bangalore and in the said suit the plaintiffs filed application under Order-39 Rules- 1 and 2 read with Section-151 of the Code of Civil Procedure, seeking ad-interim injunction restraining the 4th defendant, his tenants, servants from interfering with physical possession and enjoyment of the property pending disposal of the said suit and in the said suit, it is also contended by the plaintiffs that 4th defendant has stealthily put up the claim over the property belonging to the plaintiff by forged and manipulated judgment in the Scheme suit in OS No.1/1946 and are interfering with the property. The defendant No.4 therein i.e., Respondent No.1 trust herein opposed the said application by filing Misc.No.456/200725 objection statement and after hearing both sides the XXVIII Additional City Civil Judge, Mayo Hall, Bangalore rejected the said application vide order dated 27.07.2005 by holding that there is no prima facie case in favour of the plaintiffs therein. It is observed in the order that though the plaintiffs contended that the signature of the Presiding Officer is forged in 1946 and also contends that a complaint has been lodged, there is no material before the court to conclude about the said forgery or the enquiry regarding the same. It is also observed in the said order that the defendant has placed copies of the HRC proceedings before the Hon’ble High Court and Hon’ble Supreme Court which indicates about the orders obtained by them against the various tenants and the question whether the documents furnished by the defendants including the signature in the judgment of 1946 is genuine or not, is a matter of evidence which cannot be adjudicated at this point of time. So, this is the observation of the said court while considering the application for temporary injunction. 15. When such application was rejected the Misc.No.456/200726 plaintiffs therein preferred Misc. First Appeal No.7248/2005(CPC) before the Hon’ble High Court and the Hon’ble High Court by its judgment dated 21.10.2005 rejected the said Misc. First appeal at the admission stage itself. So the said orders passed on IA filed under Order-39 Rules-1 and 2 of the Code of Civil Procedure becomes final as on today, why because the petitioner herein has not produced any documents to show that against the said judgment passed in M.F.A.No.7248/2005 by the Hon’ble High Court either herself or her son preferred any proceedings before the Hon’ble Supreme Court and about the result of the said proceedings. So, regarding the contention of the respondents herein about the forged signature of the District Judge and produced such frivolous document before the court and by committing fraud on the court obtained order to permit the respondent No.1 to lease out the properties in favour of respondent no.2, is already pending in the suit O.S.No.15053/2005. So, that court has to try the suit and it has to give its finding on the said allegations made against the respondents herein. When said suit is already pending before the court, whether the petitioner can again file the Misc.No.456/200727 present petition raising same contention before this court by filing petition under sections-34 and 36 of the Indian Trust Act, the present petitioner is also a party in the said suit and she has been arrayed as Defendant No.1. If at all, according to the present petitioner who was the defendant No.1 in the said suit regarding forgery of the signature of the District Judge and creating judgement and decree, will have to be tried by this court only and by no other courts, then the petitioner could have raised such contention in the earlier suit filed by her elder son seeking partition and separate possession. But, on the contrary perusing the order passed on the application filed under Order-39 Rules-1 and 2 read with Section-151 of the Code of Civil Procedure, even there is no reference that the petitioner herein filed her objection statement to the said application. The present petition is filed by the petitioner only after her elder son was not able to get any injunction order in the said suit OS No. 15053/2005. This prima facie goes to show that the suit filed by the elder son is a collusive suit between the son and the mother. When the said issues has been already seized by another court in a full Misc.No.456/200728 pleaded suit filed under general law and if this petition is also ordered to be maintained before this court, then there may be two conflicting decisions on the same point as to the forgery of signature of the Presiding Officer of the court who passed the judgment in OS No.1/1946, which may also leads to further complications. 16. Not only that, in the petition itself the petitioner contended that there are so many suits pending in respect of the petition schedule properties between the petitioner and respondents and the corporation authorities. Petitioner also filed another suit in OS No.3355/2007 against the Corporation authorities and the petitioner’s son also filed one more suit in OS No.9552/2005 against the corporation seeking injunction not to issue sanctioned plan and licence in favour of the trust. 17. So far as the contention of the petitioner that, she is in possession of the petition schedule properties and letting out the premises to the tenants is concerned, as I have already observed above that, in the suit O.S.No.15053/2005 the court Misc.No.456/200729 trying the said suit already comes to the conclusion that there is no prima facie material placed on record to show that the plaintiffs in the said suit are in possession of the petition schedule properties, which finding has been confirmed by the Hon’ble High Court in MFA No.7248/2005. Even the contention of the petitioner that she is the owner in possession of the petition schedule properties is also not accepted by the Corporation authorities and her name is not entered in the katha and in the corporation records. Except bare contention in the petition that the respondents have forged the signature of the Presiding Officer and created forged judgment and decree and by producing such forged documents the respondents committed fraud on the court and obtained an order permitting the respondent No.1 to lease out the property in favour of Respondent No.2, no supporting material has been produced by the petitioner, which aspect has been clearly observed by the court, which passed the order on the interlocutory application in OS No. 15053/2005. 18. To prove her individual rights that the Misc.No.456/200730 petitioner is the absolute owner of the petition schedule properties, she cannot be permitted to drag the Respondent No.1-Trust to the court by filing multifarious suits and other proceedings in which case the trust will be put into an embarrassing situation and it has to spend its time and public money only on litigating the matters by attending before the court instead of doing service to the public with which object the trust was created. 19. Apart from that under Section-34 of the Indian Trust Act, it is the trustees who without instituting the suit he can apply by petition for the opinion, advise or direction of the court on any questions respecting the management and administration of the trust properties, other than the question of detail, difficulty or importance, not proper in the opinion of the court for summary disposal. So, the provision also clearly goes to show that the present petitioner who filed the petition under sections-34 and 36 of Indian Trust Act is neither a trustee nor a beneficiary of the trust of Respondent No.1 and the petition is also not for the questions respecting the management or Misc.No.456/200731 administration of the trust property and the provision also goes to show that if there are any detailed questions, difficulty or importance, not proper in the opinion of the court for summary disposal of the matter, the petition under section-34 of Indian Trust Act is not maintainable. In that view of the matter the petitioner has to file suit under general law if she wanted to redress her remedies so far as the petition schedule properties are concerned. 20. I have perused the decision reported in AIR 1969 Supreme Court-823 (Official Trustee, West Bengal and Ors. Vs. Sachindra Nath Chatterjee and another, Full Bench decision of the Hon’ble Supreme Court on Section-34 of Indian Trust Act, 1882. In para-18 of the judgement Their Lordships of the Hon’ble Supreme Court have held as under:- “From the above discussion it is clear that before a Court can be held to have jurisdiction to decide a particular matter it must not only have jurisdiction to try the suit brought but must have the authority to pass the orders sought for. It is not sufficient that it has some jurisdiction in Misc.No.456/200732 relation to the subject matter of the suit. Its jurisdiction must include the power to hear and decide the questions at issue, the authority to hear and decide the particular controversy that has arisen between the parties.” Therefore, looking to the decision of the Hon’ble Supreme Court and the principles enunciated in the said decision and in view of my above discussions, there was no cause of action for the petitioner to file the present petition before this court. 21. I have also perused the decision relied upon by the counsel for the petitioner and the principles enunciated in the said decisions which are referred to above. Looking to the facts and circumstances involved in the case on hand and the facts and circumstances involved in those reported decisions, they are not one and the same and the said decisions will not come to the aid and assistance of the petitioner’s case. 22. Therefore, looking to the entire materials on record, I am of the opinion that the main petition Misc.No.456/200733 itself is not maintainable as there is no cause of action. Accordingly, I answered the above point in the affirmative and proceed to pass the following:- O R D E R The applications-IA No.VII and VIII filed by the Respondent Nos.1 and 3 respectively under Order-VII Rules-11 read with Section-151 of the Code of Civil Procedure, are allowed. Consequently, the main petition filed by the petitioner under sections-34 and 36 of Indian Trust Act is, rejected There is no order as to the costs. -- (Dictated to Stenographer, transcribed and computerized by him, corrected and then pronounced by me in the open court on this 11th day of January 2012) -- (R.B.BUDIHAL), Prl. City Civil & Sessions Judge, V. Bangalore.

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The Petitioner in case Zareena vs Ms Rao Bahadur B P Annaswamy Mudaliar Cies Public Charities is Zareena.

The Respondent in case Zareena vs Ms Rao Bahadur B P Annaswamy Mudaliar Cies Public Charities is Ms Rao Bahadur B P Annaswamy Mudaliar Cies Public Charities and 4 more.

The case against Ms Rao Bahadur B P Annaswamy Mudaliar Cies Public Charitieswas filed on 12-06-2007 by Zareena.

The status of case Zareena against Ms Rao Bahadur B P Annaswamy Mudaliar Cies Public Charities is Case Disposed.