PATIL PATWARI SARAYA SANSTHAN Vs. TRIMBAK BAPUJI UMALE

JUDGEMENT

(1.) The learned Joint Civil Judge, Junior Division, Morshi, has passed decree for eviction and possession in Small Cause Civil Suit No. 01 of 2003 on 7th September, 2004, against the tenant. This was the subject matter of challenge in Regular Civil Appeal No. 222 of 2004, which has been allowed by the learned District Judge2, Amravati by its judgment and order dated 18th December, 2008.

(2.) The question as to whether Section 47 and 48 of the Indian Trust Act, 1882, is applicable to a public trust registered under the Bombay Public Trust Act, fell for consideration of the Full Bench of this Court in Shyamabai Surajkaran Joshi and others vrs. Madan Mohan Mandir Sanstha, reported on . Following the said decision, the another Division Bench of this Court in L.P.A. No. 428 of 2009 (Smt. Kusumbai wd/o Vasant Akarte and others vrs. Patil Patwari Saraya Sansthan, 2010 2 MhLJ 476), has held on 29th September, 2010, as under;

(3.) In the present case, it was not the objection raised before the trial Court that the suit was not maintainable at the instance of a trustee who was the Secretary of the public trust. No such issue was framed. It is for the first time the lower appellate Court has reversed the decision of the trial Court solely on the ground that all trustees have not been joined as plaintiffs and the suit at the instance of the Secretary is not maintainable. A copy of the resolution of the trust authorizing the Secretary to file civil suit for eviction of the tenant is placed on record. In view of this, the lower appellate Court has committed an error of law in holding that the suit is question was not maintainable. The judgment and order impugned cannot, therefore, be sustained.