MAROTI SANSTHAN TIWSA Vs. GULAB HARIBHAU JIRAPURE

JUDGEMENT

(1.) By this petition filed under Articles 226 and 227 of the Constitution of India, the petitioner-trust has challenged the order of maharashtra Revenue Tribunal dated 31-3-1992, by which Maharashtra Revenue tribunal has held that the tenancy of public trust is heritable and has relied upon the ruling of this Court reported in Khanqah-Kadria Trust (Wakf) , Balapur vs. Shevantabai wd/o Raoji Shivaji, 1989 Mh. LJ. 891. It, therefore, allowed the revision preferred by present respondent and set aside the order of Sub Divisional officer, whereby the Sub Divisional Officer held that tenancy is not heritable and, therefore, passed orders under section 120, restoring the possession to the present petitioner by ejecting the respondents.

(2.) Mr. Chandurkar, Advocate has filed application for consequential amendment and the same is rejected being belated. Mr. Chandurkar, while arguing the case for the petitioner has stated that the Sub Divisional Officer had relied upon the earlier judgment of this Court reported in Ramchandra Nagoji bondre and others vs. Shri Mangaleshwar Maharaj Sansthan and others, 1986 mh. LJ. 125 to hold that the tenancy of public trust cannot be inherited. He further states that the Maharashtra Revenue Tribunal, has relied upon on a later judgment reported in Khanqah-Kadria Trust (Wakf) , Balapur vs. Shevantabai wd/o Raoji Shivaji, 1989 Mh. LJ. 891 to accept the contentions of respondents that tenancy can be inherited. He points out that this ruling in Khanqah-Kadria trust (Wakf) , Balapur vs. Shevantabai wd/o Raoji Shivaji, 1989 Mh. LJ. 891 itself has been reversed by the Hon'ble Apex Court and the said judgment in shriram Mandir Sansthan @ Shri Ram Sansthan Pusda vs. Vatsalabai and others, 1999 (1) Mh. LJ. 321 (SC). According to him, therefore, the very basis of the order of Maharashtra Revenue Tribunal does not exist and the said order, therefore, needs to be quashed and set aside. He further states that the order of sub Divisional Officer, therefore, needs to be restored. He also points out that against the other respondents in the writ petition filed by the present petitioner vide Writ Petition No. 1811/1992 same order of Maharashtra Revenue Tribunal dated 31-3-1992 was questioned. He points out that this order is common in the said Revision No. 51/1987 and also present revision which was registered as revision No. 92/1997. He points out that the order dated 31-3-1992 in Revision no. 51/1987 is set aside by this Court in the above writ petition on 14-12-2004. Therefore, the learned counsel urges that the matter is covered by judgment of this Court and, therefore, the present writ petition also needs to be allowed.

(3.) Mr. Masodkar, Advocate, who appears for respondent in the matter states that the said judgment will not apply in the facts of the present case because according to him, the petitioner-trust must be a registered trust on 1-11-1961 to enable it to claim exemption under section 129 (b) of Bombay Tenancy and Agricultural Land (Vidarbha Region) Act, 1958, hereinafter referred to as the 1958 Act. He states that admittedly, in the facts of the present case, the petitioner-trust has been registered under Bombay Public Trust Act on 19-9-1962 and, therefore, the property had vested in the respondents, on the tillers day. According to him, therefore, as the petitioner-trust was not registered trust on 1-4-1961 the exemption certificate obtained by the petitioner on 13-11-1964 is of no consequence. He relied upon the Division Bench of this Court in Eknath bhiku Yadav and another vs. Ganpatrao Shankarrao Dhawan and others, 2006 (3) Mh. LJ. 288 to substantiate his contention.