MARWADI SAMSHAN HANUMAN MANDIR Vs. LAKHANLAL AND ORS

JUDGEMENT

(1.) This is an application for review of Judgment and Order dated 8th February, 2006 passed by learned Single Judge of this Court in Civil Revision Application No. 1242 of 1998, by which the Civil Revision Application No. 1242 of 1998 was allowed and the application under Section 9A, Civil Procedure Code, for dismissal of Regular Civil No. 5 of 1998 filed by the Review Applicant, was allowed and consequently the said Civil Suit was dismissed.

(2.) Review Applicant, Marwadi Smashan Hanuman Mandir [hereinafter referred to as Plaintiff] filed a suit, namely Regular Civil Suit No. 5 of 1998 in the Court of Civil Judge [Junior Division], Akot, against the Non-applicants [hereafter referred as defendants], for declaration and permanent injunction. Plaintiff averred in the suit that the suit land Survey No. 19/1 of Kasbe Akot, Tq. Akot, Distt. Akola, total 3 hectares 4 R is owned by the plaintiff-Trust. In Enquiry Case No. 323 of 1993, Asstt. Charity Commissioner, Akola, had by order framed a Scheme upon registration of the Plaintiff as a Public Trust, which order was confirmed in appeal by the Joint Charity Commissioner, Nagpur. The suit land finds place in the Record of Right, 7/12 extracts and the map filed with the plaint and also the public record and in the Scheme that was framed. Smt. Rukhminibai, the widow of Narayan Khandole, the son of Dhanaji, was shown as a tenant in the 7/12 Extracts. Claiming to be the tenant, Smt. Rukhminibai applied for fixation of purchase price under Section 49-A of the Bombay Tenancy & Agricultural Lands [Vidarbha Region] Act, 1958. Tenancy Tahsildar held in her favour. But the Sub-Divisional Officer in appeal decided on 28th September, 1990 held that Rukhminibai could not purchase the land and the reason was that it fell within the Municipal limits of Akot Municipal Council where the Tenancy Act did not have any application. In Revision, Maharashtra Revenue Tribunal confirmed the appellate order of Sub-Divisional Officer on 29th January, 1996. Writ Petition No. 2130 of 1994 filed by Rukhminibai was pending in the High Court. It was ultimately dismissed on 16th September, 2000 confirming the appellate order of Sub-Divisional Officer].

(3.) Defendants filed Written Statement and raised a plea in para 8 thereof that permission under Section 51 of the Bombay Public Trusts Act was not obtained by the plaintiff for filing the suit and in the absence thereof, the suit could not have been filed before Civil Court and such a suit, as per the provisions of Sections 50 and 51 of the Bombay Public Trusts Act, was not maintainable and at any rate, the suit was barred under Section 80 of the Bombay Public Trusts Act.