PATIL PATWARI SARAYA SANSHTHAN Vs. VASANT MAHADEORAO AKARTE

JUDGEMENT

(1.) Heard Shri Dadhe, Advocate, for the petitioner. None for the respondents though served, for final disposal. Heard on merits forthwith.

(2.) The petitioner is a Trust bearing Registration No. E-59 of Amravati. It had brought R.C.S.No. 53/2002 before the Civil Judge, Junior Division, Morshi, for eviction, possession, arrears of rents and mesne profit against one Vasant Mahadeorao Akarte, of whom the present respondents are L.Rs. In the suit proceeding, the then defendant filed W.S. Amongst other defences, he also contended that the suit was barred by principle of res-judicata and the Secretary G.S.Deshmukh had no right to file the said suit for want of compliance of provisions of Indian Trust Act. The issues were framed. The plaintiff led his evidence. It appears that the defendant did not lead any evidence though he contested the matter. The learned Civil Judge relying on the observations of Gujrat High Court in AIR 1973 Guj 113 (Atmaram Ranchhodbhai vs. Gulamhusein Gulam Mohiyaddin and other) and this court in 1994 Mh L J 280 (Nagar Wachan Mandir, Pandharpur vs. Akbaralli Abdulhusen and sons and others), found that as all trustees of the petitioner/plaintiff trust were not party plaintiffs to the suit, the same was liable to be dismissed. He has found that instrument of trust was not filed on record. He further found that the plea was taken by the respondent/defendant that the suit was barred by resjudicata and the plaintiff had not shown new cause of action, as such also the suit was liable to be dismissed. Other issues were cursorily addressed by the learned Civil Judge. Consequently he dismissed the plaintiff/petitioner's suit by the judgment dated 3.9.2004.

(3.) Petitioner/plaintiff then preferred an appeal R.C.A. No. 220/2004 before the District Judge, Amravati. The learned District Judge-I, Amravati, found that the suit was not properly instituted by all the trustees of the trust and therefore, he held that the suit was liable to be dismissed and therefore, he dismissed the appeal.