JAMNA Vs. HAJI AHMED HAJI YAKUB

JUDGEMENT

(1.) This is a civil revision application against an order passed by the learned District Judge Surat on preliminary issue in regard to the maintainability of the suit as well as the jurisdiction of the Court to entertain the suit under the provisions of the Bombay Public Trusts Act 1950 by which the learned District Judge held against the petitioners that the Court had jurisdiction to try the suit and that the suit was maintainable.

(2.) The facts giving rise to the petition are this way:- The suit was filed by the five plaintiffs on 18th August 1954 as realtors with the sanction of the Charity Commissioner under sec. 50 of the Bombay Public Trusts Act 1950 The allegation made in the plaint was that there was a public religious and charitable trust known as Sitab Pir Durgah at Navsari. It was further alleged that defendants Nos. 1 and 2 were the `Mujavars of that Durgah and that before them their deceased father Jamalsha was the `Mujavar of that Durgah. It was further alleged that during the management of this trust property by Jamalsha as well as the defendants Nos. 1 and 2 the trust property in question was alienated by these persons in favour of the third defendant Bhagwandas Vanmali Sanghadia during the years 1920 and 1928 respectively. The exact dates of these alienations are not material for the present purpose. It may be stated that when the property was alienated it was a vacant land. It was alleged that after the alienations construction was done by the alienee on this land. It may also be stated that the alienees were both defendant No. 3 as well as defendant No. 3s father. It was further alleged that these alienations were in breach of trust and further that the alienees i.e. the father of defendant No. 3 as well as defendant No. 3 were aware of the breach of trust. It was further alleged that the alienations came to the knowledge of the realtors in 1944 and that thereafter they applied to the Wakf Adhikari of the then Baroda State as the properties were situated at Navsari within the limits of the then Baroda State to institute an inquiry under the provisions of `Wakf Nirbandh of the State. It is further alleged that the Wakf Adhikari gave a finding in favour of the Trust and against the alienees. The alienee i.e. defendant No. 3 then filed a suit against the State in the then Baroda State Court contesting the correctness of the decision of the Wakf Adhikari. This was prior to the merger. After the merger the said suit was transferred to the Court of the District Judge Surat which Court decided against the plaintiff upholding the decision of the Wakf Adhikari. There was an appeal to the then High Court of Bombay by the alienee the defendant No. 3. The High Court dismissed the appeal. It is alleged that the property in question however remained in possession of the alienees. During the pendency of the suit three of the plaintiffs died with the result that the two surviving plaintiffs namely Haji Ahmed Haji Yakub and Kamruddin Haji Abdul Hamid continued the suit. The original defendant No. 3 Bhagwandas Vanmali Sanghadia also died and in his place and stead his heirs and legal representatives that is the present petitioners were brought on record as party defendants. As the possession continued to remain with the alienees and as the Trust was unable to recover the possession of the trust property the present suit was filed in the Court of the learned District Judge Surat for the following reliefs:

(3.) The defence of the alienee was that the suit was not maintainable; that the suit as framed was beyond the scope of sec. 80 of the Bombay Public Trust Act 1950 that the Civil Court had no jurisdiction to entertain the suit; that the petitioners were the owners of the suit land by virtue of the sale-deed; that the suit was barred by limitation; that the Durgah was not a public religious and charitable trust and that the petitioners had constructed valuable structures on the suit property.