Pramilatai Oak Smarak Samiti, ... vs State Of Maharashtra, Thr. ...
2017 Latest Caselaw 2378 Bom

Judgment

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

      CIVIL REVISION APPLICATION NO.35 OF 2017

Pramilatai Oak Smarak Samiti,
Registered Society and Public Trust,
Reg. No.F-92 Akola, Through its
Secretary Shri Manmohan Suganchand
Tapadia, aged Major, R/o Opp. Bus Stand, 
Gandhi Road, Akola, 
Taluka and District Akola.                         ..... Applicant.

                                ::   VERSUS   ::

1.  State of Maharashtra,
through the Collector, Akola,
having office at Collector Office, Akola, 
Taluka and District Akola.

2.  Rashtriya Mahila Mandal, Akola
Registered Society and Public Trust, 
Reg. No.F-84 Akola, through its 
Secretary Smt. Urmila Gajanan Somani, 
Aged 50 years, Occupation Housewife,
R/o New Radhakisan Plot, 
Near Swarajya Bhawan, M.G. Road, Akola, 
Taluka and District Akola.             ..... Non-applicants..




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          Shri A.R. Deshpande, Counsel for the Applicant.
          Shri M.G. Sarda, Counsel for NA No.2.
          AGP for NA No.1
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                              CORAM : N.W. SAMBRE, J.

                              DATE     : MAY 5, 2017.



ORAL JUDGMENT

1.              The     present  civil   revision  application   is  by

original defendant questioning order dated 14.2.2017

passed below Exhibit 1 in Special Civil Suit No.68 of

2016 passed by learned 2nd Joint Civil Judge Senior

Division, Akola thereby rejecting application Exhibit 1

moved under Section 9A of the Code of Civil Procedure

seeking dismissal of the suit.

2. The special civil suit came to be filed by the

plaintiff seeking a declaration that sanad executed by

defendant No.1 on 22.7.1939 still continues and by virtue

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of said sanad rights are conferred on the plaintiff. A

further declaration is sought that defendant No.2 i.e.

present applicant has no legal right in relation to the

said land. A further declaration is sought against

defendant No.1 that handing over of paper possession

by virtue of a deed be declared as cancelled and proper

deed be executed in favour of the plaintiff about

possession of the suit property. A further declaration is

sought that defendant No.2 in connivance with

defendant No.1 got executed certain deed be declared as

unlawful and illegal in relation to the suit property and

not to entertain any application for renewal of lease.

Certain other reliefs are also sought in the said suit.

Application Exhibit 10 came to be moved on 5.10.2016

by defendant No.2 i.e. present applicant seeking

dismissal of the suit for want of jurisdiction. Amongst

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other a ground raised is, once there is an entry taken in

the register and maintained by the Assistant Charity

Commissioner at Akola under the provisions of the

Mumbai Public Trusts Act, 1950 in view of the

provisions of Sections 80 of the said Act, the Civil Court

has no jurisdiction to entertain the suit. It is then

claimed that since the property in question belongs to

the Trust, the suit is also barred under Sections 50 and

51 of the Mumbai Public Trusts Act.

3. The application was resisted by the original

plaintiff based on certain documents and by the

impugned order the application came to be rejected. As

such, this revision.

4. While inviting attention of this Court to the

provisions of Sections 80, 50, and 51 of the Mumbai

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Public Trusts Act, 1950, learned counsel Shri A.R.

Deshpande for the applicant would urge that the suit

itself is not maintainable. According to him, learned

Judge of the Court below has committed an error in

entertaining the suit. He would urge that this Court is

required to re-appreciate the pleadings in the plaint

and based on objection at Exhibit 10 the suit is liable to

be dismissed as not maintainable.

5. Per contra, learned counsel Shri M.G. Sarda

for non-applicant No.2 would urge that the suit is very

much maintainable and would support the order passed

by learned Judge of the Court below.

6. The suit is in relation to immovable property

located within jurisdiction of Akola Municipal

Corporation bearing Nazul Plot No.12/13 Sheet No.40-C

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area 35250 square feet. The present applicant though

was served with summon, has not filed any written

statement. However, applicant has filed preliminary

objection for which learned Judge of the Court below

has framed following preliminary issues:

"1] Whether defendant No.2 proves that, the suit is not maintainable before Civil Court for want of prior permission of the Assistant Charity Commissioner and in view of the provisions of Sections 50 and 51 read with Section 80 of the Maharashtra Public Trust Act?

2] Whether the jurisdiction of this Court is barred in view of the provisions of Maharashtra Land Revenue Code to try and entertain the present suit?

3] Whether jurisdiction of this Court ousted in view of the provisions of Bombay Revenue Jurisdiction Act?"

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7. Learned Judge of the Court below then

proceeded to consider the provisions of the Mumbai

Public Trusts Act, 1950 particularly Sections 50, 51, 79,

and 80, the provisions of the Maharashtra Land

Revenue Code, 1966, and the provisions of Sections 4

and 11 of the Bombay Revenue Jurisdiction Act, 1876 in

the backdrop of Scheme of Sections 9 and 151 of the

Code of Civil Procedure. Learned Judge of the Court

below then appreciated the law cited before it in the

case of Church of North India ..vs.. Lavahajibhai,

reported at 2005(10) SCC 762 and in other cases and

noted that both i.e. original plaintiff and defendant No.2

are public trusts registered under the Maharashtra

Public Trust Act. It is then noted that the nature of

injunction as is sought in the suit in the backdrop of the

execution of the lease deed are not in respects of

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administration or management of the present

applicant/original defendant No.2 Trust. While doing so,

learned Judge of the Court below has appreciated the

pleadings of the plaintiff in the suit and then after

relying upon the provisions of Sub section (10) of

Section 2 of the Mumbai Public Trusts Act held that the

plaintiff is not a person interested. As such, learned

Judge of the Court below recorded a finding that

permission of the Assistant Charity Commissioner,

pursuant to the provisions of Sections 50 and 51 read

with Section 80 of the Mumbai Public Trusts Act, is not

required and further held that the suit is maintainable.

8. Though an issue, as regards subjudice matter

before defendant No.1 in relation to the suit property

and its claim was sought to be relying upon for ousting

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the jurisdiction of the civil court, learned Judge of the

Court below relying upon the judgment in the case of

Gopinath ..vs.. State of Maharashtra, reported at 2007(1)

Mh.L.J. 819 in regard to the provisions of Section 11 of

the Bombay Revenue Jurisdiction Act, held that the

provisions of Section 41(b) of the Specific Relief Act,

1963 which deals with an injunction to restrain any

person from instituting or prosecuting any proceeding

in the Court cannot be granted and answered the said

issue in negative.

9. The observation made by learned Judge of

the Court below, on the issue of overruling the

preliminary issue, is squarely based on the provisions of

law and appreciation thereof.

10. I hardly see any illegality or perversity in the

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order impugned in the civil revision application so as to

infer that the learned Judge of the Court below has

failed to exercise the jurisdiction or has wrongly

exercised the jurisdiction.

11. In that view of the matter, since the order

passed by learned Judge of the Court below appears to

be just and proper, no interference in it is warranted.

Hence, the civil revision application is rejected.

JUDGE

!! BRW !!

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