NANA Vs. VIJAY

JUDGEMENT

(1.) The present second appeal is placed for fresh hearing before this court after remand by Supreme Court. Initially Regular Civil Suit No.600/1982, instituted by respondent Nos 1 to 4 seeking declaration of ownership and perpetual injunction in relation to suit properties was dismissed by trial court, however, in Regular Civil Appeal. No.21/2000, first appellate court (District court) decreed the suit. In second appeal filed by original defendants 3 and 4, decree passed by first appellate had been set aside by this court and judgment and decree of Trial Court was restored, eventually decision of this court was subjected to challenge before supreme court in appeal in earlier round. The factual matrix giving rise to the present second appeal can be summarized as under:

(2.) The respondent nos.1 to 4 (hereinafter refereed as original plaintiffs) have instituted a suit for declaration and injunction in respect of properties as described in paragraph 1 of the plaint. The property referred in paragraph no.1(A) admeasures 53 feet (East-West) and 100 feet (North-South), which consist of a temple of Goddess Jagdamba, Tuljapur, situated at Gaothan, Burhanagar of mouje Kapurwadi, Tq. and Dist. Ahmednagar. The properties described in Paragraph No.1(B)(C) (D) of plaint are adjacent to the property described in paragraph no.1(A). The plaintiffs have claimed that the property described in paragraph no.1(A) is their ancestral property and unconcerned with the Public Trust. As such they seeks permanent injunction against defendants i.e. Joint Charity Commissioner and Trustees appointed as per Scheme framed under Bombay Public Trust Act. So far as the properties described in paragraph no.1(B)(C)(D) are concerned, the plaintiffs are seeking relief of declaration that those are their ancestral and private properties.

(3.) It is the contention of the plaintiffs that the suit properties continuously owned and possessed by them since their forefathers. In the year 1913 some part of the property was mortgaged for raising funds to purchase idols of Tuljapurchi Devi, Lord Ganpati and Gaynuka. The Deities were installed in a part of the house possessed by the forefathers of the plaintiffs. The construction over the property was made from funds generated out of family business i.e. Oil extraction. The surrounding properties are owned and possessed by the plaintiffs and defendant no.2, which are specifically described in paragraph no.1(B)(C)(D) of the plaint. In support of the aforesaid contentions the plaintiffs rely upon the decree in Regular Civil Suit No.246/1935 instituted by one Chandrabhan Savaleram Teli against great grandfather of the plaintiffs. Plaintiffs claims, in that suit, declaration was made that property belongs to the Bhagat family. On 4/9/1942 there was partition and temple property was given in exclusive possession of the Kisan Lahanu Bhagat i.e. grandfather of the plaintiffs, who looked after the properties as owner. The maintenance of the property was undertaken out of his own funds. The Pooja-Archa of the Deities installed in the house property of the plaintiffs was exclusively done by the forefathers of the plaintiffs. The property was never dedicated to public or to the Deity by way of Sankalp, Samarpana or Utsav. It is only at the pleasure of the plaintiffs' family, occasionally, the access to the public was permitted for Darshan or Pooja. The private interest and use of the property was never dedicated or divested to the public.