KACHRU LAKHU AHER Vs. MASJID MANDWAD DEOSTHAN

JUDGEMENT

(1.) THE petitioner claims to be a tenant of the respondents in respect of Survey No. 227 admeasuring 21 acres and 22 gunthas situated at village Mandwad, Taluka Nandgaon, District Nasik and assessed at Rs. 5. 50. According to the petitioner he is cultivating this land as a tenant of the respondents for more than 45 years.

(2.) IN 1957 the 1st respondent Shaikh Bashir Shaikh Pathan filed a suit against the petitioner under section 29 read with section 31 of the Bombay Tenancy and Agricultural Lands Act, 1948 before the Tenancy Court, being Tenancy Suit No. 121 of 1957, for possession on the ground that he required the lands bona fide for personal cultivation. The Tenancy Mahalkari, Nandgaon by his order dated 29-10-1958 held that tenancy of the petitioner to the extent of 1/4th part of the said survey number should be terminated and possession of this 1/4th portion amounting to 5 acres and 15? gunthas should be handed over to the applicant landlord. The petitioner preferred an appeal from this order being Tenancy Appeal No. 58 of 1959. One of the contentions raised before the District Deputy Collector Malegaon who heard this appeal was that the suit land was Devasthan land and hence the provisions of the Bombay Tenancy and Agricultural Lands Act, 1948 do not apply to the suit land. This objection was negatived by the District Deputy Collector who observed that in the case of Devasthans which are not registered public trusts under the Bombay Public Trusts Act, the position of the tenants is the same as that of tenants of other lands. After considering all aspects the District Deputy Collector dismissed the appeal and ordered that the entire land should continue to be with the petitioner.

(3.) THEREAFTER on 12th December, 1959 the 1st respondent trust, that is, Masjid Mandwad Deosthan Trust, was registered under the provisions of the Bombay Public Trusts Act. On 7th June, 1985 the said trust filed a proceeding under section 88-B of the Bombay Tenancy and Agricultural Lands Act against the petitioner and sought a declaration that the land being Trust property, was exempt from the provisions of the Bombay Tenancy and Agricultural Lands Act. Hence exemption certificate under section 88-B should be granted in respect of this land to Trust. The Sub-Divisional Officer, Malegaon Division, who heard this application held that the material placed before him did not reveal any specific purpose for which the trust was created; nor was there any material to show that the total income derived from the suit land was being used for the purposes of the trust. He held that the mandatory conditions prescribed under Rule 52 of the Bombay Tenancy and Agricultural Lands Rules were not fulfilled. The conditions under section 88-B were also not fulfilled. Hence the application was rejected.