BABANI SOIROO PATEL Vs. DULBA GOVIND BHANDARI

JUDGEMENT

(1.) The present appeal arises out of a dispute in respect of certain lands, which had been acquired by Government in 1865. The question that has to be considered is, whether the lands have come into the possession of the first respondent in such circumstances, that he must be held to take them as a constructive trustee thereof, on behalf of himself and other persons, or whether he was entitled to take them entirely for himself.

(2.) The principle that is invoked by the appellant, who contends that the first respondent is a constructive trustee, is recognised in Section 90 of the Indian Trusts Act.

(3.) Government, as I have already stated, acquired the lands in 1865; and forty- seven years later, on December 28,1912, by a resolution of Government, it was resolved that the lands should be restored to the persons from whom they had been acquired. The resolution is headed: " Subject-Restoration of lands at Baitkhol," and the operative portion is in paragraph 2 of the resolution, which states that : " Government concur in the opinion expressed by the Collector in paragraph 5 of his letter" (which precedes it) " that with the restoration of the lands to their respective owners the concession made by Government to the Karwar Municipality under Government Resolution No. 1390, dated April 3, 1865, should cease." Paragraph 5 of the Collector's letter also refers to the " restoration of lands." Then by Exhibit 38, which is dated July 5, 1921, it is stated that the lands in question should be "restored," to the first and the second defendants, the second defendants being mentioned first, and the first defendant in the second place.