RAMESHCHANDRA Vs. PRINCIPAL, REGIONAL POLICE TRAINING SCHOOL

JUDGEMENT

(1.) THE first proceeding is filed to challenge the decision of District Court given in a proceeding filed under section 72 of the Bombay Public Trust Act and also the decision of Joint Charity Commissioner by which it is held that the trust of Goddess Durga -Devi Temple has only 615.7 Sq. Mtrs. land in Survey No. 259 and the remaining portion belongs to the Government. The second proceeding is filed to challenge the decision of the first appellate Court by which the first appellant has set aside the judgment and decree of Regular Civil Suit No. 84/1984 filed in respect of the same agricultural land which was pending before Civil Judge, Senior Division, Jalna. The relief of injunction was also claimed by the present appellant in the suit and it was granted, but the said decision is set aside by the first appellate Court. The Courts below have held in both the proceedings that plaintiff - trust has failed to prove that temple owns entire area of aforesaid land. Both the sides are heard.

(2.) ON the basis of rival contentions made in the appeal memo and the submissions made by the learned counsels for appellant and respondent, following substantial questions of law are formulated: - -

(3.) THE record of R.C.S. No. 84/1984 and the appeal filed against it shows that the record which was produced before the Assistant Charity Commissioner, was also produced before the Civil Court. The District Court has held that the appellant is not the owner of Survey No. 259 and so, there is no question of giving relief of injunction or declaration. It is also held that the suit was not tenable as previous suit bearing No. 213/1981 filed for similar relief was withdrawn by the present appellant unconditionally, without taking prior permission of the Court for filing the new proceeding. This finding is in accordance with the provision of Order XXIII, Rule 1(4) of C.P.C.