2016(2) ALL MR 819
IN THE HIGH COURT OF JUDICATURE AT BOMBAY (NAGPUR BENCH)
R. K. DESHPANDE, J.
Patil Patwari Saraya Sansthan Vs. Trimbak Bapuji Umale
Writ Petition No.1782 of 2009
11th September, 2015.
Petitioner Counsel: Shri K.N. DADHE
Trust Act (1882), Ss.47, 48 - Bombay Public Trust Act (1950) - Suit by trust - Maintainability - Appellate court reversed decision of trial court solely on ground that all trustees have not been joined as plaintiffs and suit at instance of Secretary is not maintainable - Copy of resolution of trust, authorizing Secretary to file suit, placed on record - Appellate court has committed error - Matter remitted back. 2010(1) ALL MR 648 (F.B.) Ref. to. (Para 3)
Shyamabai Surajkaran Joshi & Ors. Vs. Madan Mohan Mandir Sanstha, 2010(1) ALL MR 648 (F.B.)=2010 (2) Mh.L.J. 476 [Para 2]
Smt. Kusumbai wd/o Vasant Akarte & Ors. Vs. Patil Patwari Saraya Sansthan, L.P.A. No.428/2009, Dt.29.09.2010 [Para 2]
JUDGMENT :- The learned Joint Civil Judge, Junior Division, Morshi, has passed decree for eviction and possession in Small Cause Civil Suit No. 01 of 2003 on 7th September, 2004, against the tenant. This was the subject matter of challenge in Regular Civil Appeal No. 222 of 2004, which has been allowed by the learned District Judge-2, Amravati by its judgment and order dated 18th December, 2008. The lower appellate Court has dismissed the suit as not maintainable in view of the provisions of Sections 47 and 48 of the Indian Trust Act. It has been held that all trustees were required to be joined as plaintiffs in the suit for eviction and possession against the tenants. In the absence of the trustees being the plaintiffs, the suit at the instance of the sole trustee, who was the Secretary of the trust, was not maintainable. The lower appellate Court has not gone into the merits of the matter. In view of this, if the writ petition is allowed, the matter will have to be sent back to the lower appellate Court for decision on merits.
2. The question as to whether Section 47 and 48 of the Indian Trust Act, 1882, is applicable to a public trust registered under the Bombay Public Trust Act, fell for consideration of the Full Bench of this Court in Shyamabai Surajkaran Joshi and others vrs. Madan Mohan Mandir Sanstha, reported on 2010 (2) Mh.L.J. 476 : [2010(1) ALL MR 648 (F.B.)]. Following the said decision, the another Division Bench of this Court in L.P.A. No. 428 of 2009 (Smt. Kusumbai wd/o Vasant Akarte and others vrs. Patil Patwari Saraya Sansthan), has held on 29th September, 2010, as under;
"In view of the decision rendered by the Full Bench of this Court in the case of Shyamabai wd/o Suraj Karan Joshi v. Madan Mohan Mandir Sanstha, reported in 2010(2) Mh.L.J. 476, the suit filed by the public trust through a trustee (Secretary) will have to be held as maintainable against the tenant. Thus the issue being no more res integra, the present letters patent appeal is dismissed in the light of the law laid down by the Full Bench of this Court."
3. In the present case, it was not the objection raised before the trial Court that the suit was not maintainable at the instance of a trustee who was the Secretary of the public trust. No such issue was framed. It is for the first time the lower appellate Court has reversed the decision of the trial Court solely on the ground that all trustees have not been joined as plaintiffs and the suit at the instance of the Secretary is not maintainable. A copy of the resolution of the trust authorizing the Secretary to file civil suit for eviction of the tenant is placed on record. In view of this, the lower appellate Court has committed an error of law in holding that the suit is question was not maintainable. The judgment and order impugned cannot, therefore, be sustained.
4. In the result, writ petition is allowed. The judgment and order dated 18th December, 2012, passed by the learned District Judge-2, Amravati, in Regular Civil Appeal No. 222 of 2004 is hereby quashed and set aside. The matter is remitted back to the lower appellate Court to decide the appeal on its own merits in accordance with law within a period of 8 months from the date of first appearance of the parties before it. No order as to cost.