Patil Patwari Saraya Sansthan, ... vs Trimbak S/O Bapuji Umale
2015 Latest Caselaw 321 Bom

                                                      1              wp1782.09.odt

                      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                              NAGPUR BENCH, NAGPUR




                                                                                     
                                                             
                              WRIT PETITION NO. 1782 OF 2009 


                Patil Patwari Saraya Sansthan,




                                                            
                Morshi, Registration No. E-59,
                Through its Secretary, Shri Gokulrao
                Sheshrao Deshmukh, aged about
                75 years, R/o. Ramnagar, Morshi,




                                              
                Tah. Morshi, Distt. Amravati                                   PETITIONER
                              ig      ...VERSUS...

                Trimbak Bapuji Umale,
                            
                aged about 55 years,
                R/o. Khanapur, Tah. Morshi,
                District Amrvati. ......                                      RESPONDENT 
      

     -------------------------------------------------------------------------------------------
     Shri K.N.Dadhe, counsel for Petitioner.
   



     None for respondent
     -------------------------------------------------------------------------------------------
                              CORAM: R. K. DESHPANDE, J.

th DATE : 11 SEPTEMBER, 2015 .

ORAL JUDGMENT

1] The learned Joint Civil Judge, Junior Division,

Morshi, has passed decree for eviction and possession in

Small Cause Civil Suit No. 01 of 2003 on 7 th September,

2004, against the tenant. This was the subject matter of

challenge in Regular Civil Appeal No. 222 of 2004, which has

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been allowed by the learned District Judge-2, Amravati by its

judgment and order dated 18th December, 2008. The lower

appellate Court has dismissed the suit as not maintainable in

view of the provisions of Sections 47 and 48 of the Indian

Trust Act. It has been held that all trustees were required to

be joined as plaintiffs in the suit for eviction and possession

against the tenants. In the absence of the trustees being the

plaintiffs, the suit at the instance of the sole trustee, who was

the Secretary of the trust, was not maintainable. The lower

appellate Court has not gone into the merits of the matter. In

view of this, if the writ petition is allowed, the matter will have

to be sent back to the lower appellate Court for decision on

merits.

2] The question as to whether Section 47 and 48 of

the Indian Trust Act, 1882, is applicable to a public trust

registered under the Bombay Public Trust Act, fell for

consideration of the Full Bench of this Court in Shyamabai

Surajkaran Joshi and others vrs. Madan Mohan Mandir

Sanstha, reported on 2010 (2) Mh.L.J. 476. Following the

said decision, the another Division Bench of this Court in

L.P.A. No. 428 of 2009 (Smt. Kusumbai wd/o Vasant

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Akarte and others vrs. Patil Patwari Saraya Sansthan),

has held on 29th September, 2010, as under;

"In view of the decision rendered by the Full Bench of this Court in the case of Shyamabai wd/o Suraj Karan Joshi v. Madan Mohan Mandir Sanstha, reported in 2010(2) Mh.L.J. 476, the suit filed by the public trust through a trustee (Secretary) will have to

be held as maintainable against the tenant. Thus the issue being no more res integra, the present letters patent appeal is dismissed in the light of the law laid down by the Full Bench of this Court."

In view of the aforesaid decision of the Division Bench, the

suit filed by a trustee (Secretary) is maintainable against the

tenant.

3] In the present case, it was not the objection

raised before the trial Court that the suit was not maintainable

at the instance of a trustee who was the Secretary of the

public trust. No such issue was framed. It is for the first time

the lower appellate Court has reversed the decision of the

trial Court solely on the ground that all trustees have not

been joined as plaintiffs and the suit at the instance of the

Secretary is not maintainable. A copy of the resolution of the

trust authorizing the Secretary to file civil suit for eviction of

the tenant is placed on record. In view of this, the lower

appellate Court has committed an error of law in holding that

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the suit is question was not maintainable. The judgment and

order impugned cannot, therefore, be sustained.

4] In the result, writ petition is allowed. The

judgment and order dated 18 th December, 2012, passed by

the learned District Judge-2, Amravati, in Regular Civil

Appeal No. 222 of 2004 is hereby quashed and set aside.

The matter is remitted back to the lower appellate Court to

decide the appeal on its own merits in accordance with law

within a period of 8 months from the date of first appearance

of the parties before it. No order as to cost.

JUDGE

Rvjalit