SAMBHUGIR SANSTHAN TRUST Vs. GOPAL TULSHIRAM VIDHATE

JUDGEMENT

(1.) Heard. Admit. Taken up for final disposal in view of the fact that the appeal is pending since 2005 only for admission and it relates to the litigation which is old.

(2.) Being aggrieved by the judgment and decree dated 23.2.2005, passed by the 4 th Ad hoc Additional District Judge, Akola in Regular Civil Appeal No.166/2002 by which the appeal preferred by the appellants was dismissed and the judgment and decree dated 29.6.2002, passed by the III Jt. Civil Judge (Jr. Dn.), Akola in Regular Civil Suit No.181/1997 was upheld, the present second appeal has been filed by the original plaintiffs/appellants.

(3.) Shambhugir Sansthan Trust, Dhotardi a registered Trust through its five trustees filed a suit for declaration and possession vide Regular Civil Suit No.181/1997 against the respondents/original defendants in the Court of Civil Judge, Senior Division, Akola on 14.2.1997. The plaint allegations are that plaintiff no.1 Public Trust was registered as Public Trust by order dated 16.5.1958, passed by the Registrar acting under the Madhya Pradesh Public Trusts Act and consequently, was registered on 21.2.1964 after coming into force of the Bombay Public Trusts Act, 1950. The agricultural lands bearing Survey no.60/2, admeasuring 7.21 acres and agricultural land bearing Survey no.35/4, admeasuring 4.33 acres of village Dhotardi is owned by plaintiff no.1 Public Trust and accordingly entry to that is also to be found in Schedule I Public Trust register which entry is final and conclusive. One Tulshiram Sambhaji Vidhate claiming to be the protected tenant of the Trust over the said suit lands in collusion with the Tenancy Tahsildar got both the lands transferred in his name by way of compulsory transfer of ownership to a tenant under Sections 46 and 48 of the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958 (for short, hereinafter referred to as the Tenancy Act ) in two revenue proceedings i.e. Revenue Case nos.1087/59(13)/Dhotardi/63-64 and 1076/59/13/63-64 of village Dhotardi in respect of the said two fields by playing fraud and in collusion with one of the Trustees by name Pundlik Raoji Patil by orders dated 30.9.1966. The defendants are the sons of Tulshiram and subsequent transferees from them. In both above proceedings i.e. Revenue Case nos.1087/59(13)/Dhotardi/63-64 and 1076/59/13/63-64 of village Dhotardi, the landlord who was shown to have been given notice of those proceedings was Gajanan Sansthan, Dhotardi and not Shambhugir Sansthan i.e. plaintiff no.1. Both these orders are thus void ab initio and not binding on plaintiff no.1 Public Trust. The said orders were passed without holding any enquiry by Tahsildar and none of the Trustees who were alive at that time and who were recorded in the Public Trust register were given notices except Pundlik Patil, who colluded with Tulshiram. The said order dated 30.9.1966 in both revenue cases i.e. Revenue Case nos.1087/59(13)/Dhotardi/63-64 and 1076/59/13/63-64 of village Dhotardi are thus void ab initio and nullity and therefore, the civil Court has jurisdiction to examine the validity thereof. The transfer of lands subsequently to others by the sons of Tulshiram in violation of Section 57 of the Tenancy Act was also illegal and the suit lands were liable to be forfeited.