Sanjay Vishwasrao Chikte And 3 ... vs Purushottam Pundlik Tayade And ...
2017 Latest Caselaw 3410 Bom

  A.O.No.2 of 2016                            1        

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

                      APPEAL AGAINST ORDER NO.2/2016


 1.             Sanjay S/o Vishwasrao Chikte,
                Aged about 52 years,
                Occupation-Agriculturist,

 2.             Raju S/o Pralhad Amle,
                Aged about 37 years,
                Occupation-Agriculturist,

 3.             Devanand S/o Kashiram Mhasal,
                Aged about 37 years,
                Occupation-Agriculturist,

 4.             Yogesh S/o Manohar Amle,
                Aged about 50 years,
                Occupation-Agriculturist,

                All appellants R/o Malegaon Bazar,
                Tq.Telhara,District-Akola.                    .....APPELLANTS

                          ...V E R S U S...

 1.             Purushottam S/o Pundlik Tayade,
                Aged Adult,Occ-Agriculturist,

 2.             Yogesh S/o Purushottam Tayade,
                Aged  adult,Occ-Agriculturist,

 3.             Prashant S/o Purushottam Tayade,
                Aged adult, Occ-Agriculturist,

 4.             Vishnu S/o Pundlik Tayade
                ( deleted as per Court order 
                dated 9/3/17)

 5.             Santosh S/o Vishnu Tayade,
                Aged adult,Occ-Agriculturist,




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   A.O.No.2 of 2016                      2        


 6.             Anil S/o Vishnu Tayade,
                Aged adult,Occ-Agriculturist,

 7.             Haridas S/o Ramkrushna Tayade,
                Aged adult,Occ-Agriculturist,

 8.             Sachin S/o Haridas Tayade,
                Aged adult, Occ-Agriculturist,

 9.             Shri Shrikrishna S/o Ganpat Tayade
                (Amendment carried out as per 
                  Court's order dated 09/03/2017)

 9-i)           Vasanta S/o Shrikrishna Tayade,
                Aged about 60 years,Occ-Agriculturist,

 9-ii)          Shaligram S/o Shrikrishna Tayade,
                Aged about 58 years,Occ-Agriculturist,

 9-iii)         Ramdas S/o Shrikrishna Tayade,
                Aged about 53 years,Occ-Agriculturist,

                All r/o Malegaon Bazar, Tq-Telhara,
                District-Akola.

 10.            Dharmal S/o Sansthan Trust,
                Regd No.E-8,Akola,through
                Sshrikrishna Ganpat Tayade,
                Malegaon Bazar, Tq.Telhara,District-Akola.

 11.            Shri Thite Tahsildar
                Telhara,Tq.Telhara,District-Akola.

 12.            Shri Wadekar(Patwari)
                Malegaon Bazar,
                Tq.Telhara,District-Akola.

                  (As per Reg.(J)order dated 27/7/2016 the
                    appeal is dismissed against respondent 
                     nos. 11 and 12)




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   A.O.No.2 of 2016                                 3        


 13.            State of Maharashtra,
                Through Collector,Akola.                               ...RESPONDENTS

 -------------------------------------------------------------------------------------------

Shri N.R.Tekade, Learned Advocate for appellants. Shri A.R.Deshpande, Learned Advocate for respondent nos. 1 to 3, 5 to 8,9(i) to 9(iii)

-------------------------------------------------------------------------------------------

CORAM:- SMT.DR.SHALINI PHANSALKAR-JOSHI, J.

DATED :- JUNE 21 ,2017

ORAL JUDGMENT

The application filed by the appellants-plaintiffs for

grant of leave to file suit under Section 92 of Code of Civil

Procedure came to be rejected by District Judge-2 ,Akola vide his

impugned order dated 27/7/2015 in M.J.C.No.138/2013. Against

the said order the instant appeal is preferred.

Facts of the appeal are to the effect that appellants

have filed the suit before the trial Court for proper administration

of suit property and vesting the property in the name of the

proposed trust.

2. The first relief which is claimed in the suit is of

mandatory injunction directing the respondents-defendant nos. 1

to 9 & 11 and 12 to vest the suit property in the trust by removing

their names in the revenue record, in their individual capacity and

to further maintain the same in the name of trust by making

necessary compliances with the office of Assistant Charity

Commissioner. Second relief claimed is of directing the

respondents- defendants to cultivate the suit property, as a

property of trust and not in their individual capacity and comply

the requirements and purpose of the trust. Thus, as rightly

observed by the trial Court the appellants have filed the suit to

maintain the interest and to safeguard the property of proposed

trust.

3. In view thereof, as held in the judgment of this Court in

the case of Jankibai Prahladrai Brijlal Seksaria..vs..Kashinath

Raghunath Kelkar and others,1971BCI 32 the bar under Section

80 of the Bombay Public Trusts Act, clearly becomes applicable in

view of Section 79 of the Bombay Public Trusts Act.

4. Section 79 of the Bombay Public Trusts Act,1950

reads as follow:

"79(1) Any question, whether or not a trust exists

and such trust is a public trust or particular property is the

property of such trust, shall be decided by the Deputy or Assistant

Charity Commissioner or the Charity Commissioner in appeal as

provided by this Act.

(2) The decision of the Deputy or Assistant

Charity Commissioner or the Charity Commissioner in appeal, as

the case may be shall, unless set aside by the decision of the court

on application or of the High Court, in appeal, be final and

conclusive".

Section 80 of the said Act which follows provides that,

"Bar of Jurisdiction:- Save as expressly provided in the

Act, no Civil Court shall have jurisdiction to decide or deal with

any question which is by or under the Act to be decided or dealt

with by any officer or authority under the Act, or in respect of

which the decision or order of such officer or authority has been

made final and conclusive."

5. Thus, as observed in the reported authority,

" in view of provisions of Section 79 it is clear that the

question whether a particular property is the property of the trust

is required to be decided by the Charity Commissioner or his

Assistants. The words used are "shall be decided by" . Therefore

the said provision being mandatory, in pursuance of Section of 80

of the Bombay Public Trusts Act it will clearly preclude the Civil

Court from deciding that question".

6. In the instant case, the appellants have not shown any

provision to the extent that the jurisdiction of the Civil Court is

saved by any other provision contained in the Bombay Public

Trusts Act. Hence, as the jurisdiction of the Civil Court is expressly

ousted in view of Section 80 of the Bombay Public Trusts Act, the

learned trial Court has rightly held that the suit under Section 92

of Code of Civil Procedure is not tenable. The appellants are

having efficacious remedy to seek relief before the appropriate

forum under the Bombay Public Trusts Act. Learned trial Court

has thus rightly refused to grant leave to the appellants to file

civil suit in the Court under Section 92 of Code of Civil Procedure.

The impugned order passed by the learned trial Court is therefore

just, legal and correct. Hence, no interference is required therein.

Appeal therefore stands dismissed. Parties to bear their own costs.

JUDGE

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