G R GUSAI Vs. MANHARGIRI GAGANGIRI GUSAI

JUDGEMENT

(1.) This appeal by the present appellants-original defendants under Sec. 96 of the Code of Civil Procedure read with Sec. 56 of the Bombay Public Trusts Act arises from the judgment and decree dated 31-3-1982 passed by learned District Judge, Kachchh at Bhuj in Civil Suit No. 1 of 1977 whereby the original defendant No. 2 was directed to hand over vacant and peaceful possession of the suit property to the Gusai Panch Trust.

(2.) The facts in short are that a suit was filed by the plaintiffs under Sec. 50 of the Bombay Public Trusts Act, 1950 ('the Act' for short) stating that they were the descendants of 'Mathadharies' of the Gusai Panch Trust at Mandvi. The Trust owned certain movable and immovable properties at Kachchh-Mandvi including 'Gusai Panchwada' which is the suit property admeasuring 15460 sq.ft., the sole trustee of which was the defendant No. 1. When the defendant No. 1 sought permission of the Charity Commissioner to transfer certain properties to the defendant No. 2 by gift vide application dated 27-3-1974, the plaintiffs opposed the same, and hence, the application was withdrawn. Second application, however, was dismissed by the Charity Commissioner as parties did not remain present. Since, the defendant No. 2 started demolishing the suit property for construction of a Girls High School without following due process of the Act, the plaintiffs approached the Charity Commissioner. In spite of the directions from the Charity Commissioner against any construction, the defendants, in collusion with each other, executed false documents pertaining to the suit property and mismanaged the affairs of the Trust, and "hence, the defendant No. 1 was to be disqualified from being the trustee of the Trust. Therefore, the aforesaid suit was filed by the plaintiffs to remove the defendant No. 1 from the position of trustee and also to declare the possession of the suit property held by the defendant No. 2 as well as execution of lease-deed between the defendant Nos. 2 and 1 as illegal.

(3.) The defendants resisted the suit by filing written statement. It was contended that the transaction between the defendant No. 1 and defendant No. 2 was legal and authorized. It was further contended that the very purpose of renting the suit property to the defendant No. 2 by the defendant No. 1 was to impart education to girls. It was further contended that possession of the suit property by the defendant No. 2 was legal. They therefore prayed to dismiss the suit of the plaintiffs.