LILAVATI BALKRISHNA MASAI Vs. BALLAL VINAYAK DEVASTHAN

JUDGEMENT

(1.) In Regular Civil Suit No. 1 of 1988 the petitioners were impleaded as defendants and they had filed an application at exhibit 17 to frame a preliminary issue on the point of jurisdiction. This application was rejected by the trial Court and in an appeal the district Court set aside the order and directed the trial Court to frame the preliminary issue and to decide the same by allowing the parties to lead evidence vide order dated 12-6-1991 in misc. Civil Appeal No. 26 of 1990. Accordingly the trial Court on remand framed the following issue :

(2.) The trial Court vide its order dated 20-10-1992 held that it had no jurisdiction to try the suit and, therefore, the plaint was returned to the plaintiff to file in the proper court. Being aggrieved by the said order the plaintiffs filed Civil Misc. Appeal No. 80 of 1992 which came to be allowed by the learned Addl. District Judge, Raigad vide his judgment and order dated 7/12/1996. This decision of the lower Appellate Court is under challenge in this revision application. The trial Court vide its order dated 20-10-1992 noted that the plaintiffs is a registered public trust and the defendant had produced the document which went to show that her husband was the tenant of the suit land and no exemption certificate under section 88-B of the Bombay Tenancy and agricultural Lands Act, 1948 ("the Bombay tenancy Act" for short) was produced on record by the plaintiffs. During the pendency of the appeal i. e. Misc. Civil Appeal No. 80 of 1992 the plaintiffs Trust submitted an application for certificate under Section 88-B of the Bombay Tenancy Act before the Sub- divisional Officer at Alibaug and the said application came to be registered as Tenancy application No. 3 of 1993. The application was decided on 28-2-1994 by the SDO who was pleased to reject the same. He held that the applicant-Trust did not meet the requirements of Section 88-B of the Tenancy Act. However, the learned Additional District Judge referred to a decision in the case of Poulad Deochand patil Vs. Samasta Aher Nhavi Panch Trust and anr. (1992 (2) Bom. C. R. 583) and held that in spite of the order passed by the SDO on 28/ 2/1994 the Civil Court shall be required to permit the plaintiff-Trust to adduce evidence to prove to its satisfaction that the Trust is falling within the category specified under Section 88-B of the Act. The lower Appellate Court inferred from the decision of this Court in Poulad Patil's case (Supra) , as under :

(3.) In para 10 of its judgment the lower Appellate Court reproduced a paragraph from the judgment of this Court in Poulad patil's case (Supra). The concluding sentence of the said reproduction reads as under :