LEELAVATI Vs. DATTATRAYA DHONDIRAJI KAVISHAR

JUDGEMENT

(1.) This revision is directed against the rejection of the preliminary objection made by order dated 13-4-1987 by the learned Civil Judge, Junior Division, Chikhli, in Regular Civil Suit No. 60 of 1987. The preliminary objection to the tenability of the suit made by application (Exhibit 19) by the applicants was on the ground that since it appears that the plaintiffs are trustees of a Registered Public Trust `Wakratund Maharaji Kavishwar Smarak and have claimed possession of a portion of Survey No. 53/2 on the ground that the defendants have encroached upon the same, it is exclusively within the jurisdiction of the authorities contemplated under the Bombay Public Trusts Act, 1950 (hereinafter referred to as the Act) as to whether any property belongs to Public Trust or not under section 79(1) of the Act and that, therefore, the suit should be dismissed.

(2.) It appears that while arguing before the learned Civil Judge, Junior Division, Chikhli, it was contended by the applicants that since no permission of the Charity Commissioner, as provided under section 50 of the Act, was obtained for filing such a suit, the suit was not tenable. The learned Civil Judge came to the conclusion that as the instant suit is by the trustees of a Public Trust of a religious and charitable nature for possession of the property of the trust against a trespasser, the subject matter of the suit is not governed either by section 92 of the Code of Civil Procedure or section 50 of the Act and that, therefore, the consent of Charity Commissioner was not necessary.

(3.) The certified copy (Exhibit 28) of the registration of the Trust does not contain an entry relating to Survey No. 53/2. The learned trial Court observed that it cannot be considered that the suit land, forming part of Survey No. 53/2, is not property of a public trust, particularly when the gifts in respect of the property are in the name of the plaintiff-Trust by registered documents and as mutation has also been made in the revenue records in respect of the same.