SHANKARLAL SANDHURAM MASTER Vs. KEDARGIR GURU HARIGIR
LAWS(BOM)-2016-7-150
HIGH COURT OF BOMBAY (AT: AURANGABAD)
Decided on July 12,2016

Shankarlal Sandhuram Master Appellant
VERSUS
Kedargir Guru Harigir Respondents

JUDGEMENT

V. K. Jadhav, J. - (1.) Being aggrieved by the Judgment and Order dated 28.9.1995 passed by the learned Additional District Judge, Jalna in M.C.P. No.13 of 1991, the original applicants preferred this appeal.
(2.) Brief facts, giving rise to the present appeal, are as follows : a] The applicants had initiated a proceedings under section 19 of the Maharashtra Public Trusts Act, 1950 (hereinafter referred to as 'The Act of 1950') for registration of Public Trust i.e. 'Shri Sheriche Mahadev Mandir', Jalna. Said inquiry was numbered as 23 of 1983. The applicants have mentioned names of five persons as the trustees and the mode of succession shown as surviving trustees to appoint new trustee. The main object of the trust is shown as religious one and to continue customs and functions to be held in the said temple, to held the annual fair on every Nagpanchami day to feed the Saints and to maintain the Dharmashala in the temple premises. The movable property sought to be registered is shown as pooja utensils worth Rs.2,000/(Rs. Two thousand), and immovable property shown is the land bearing S.No.229 admeasuring 5 Acres 23 Gunthas, wherein a temple of Lord Shiva, Dharmashala, Barav (well) and some samadhis are situated. According to the applicants, the said temple is a Public Trust and property referred to above is trust property. The applicants further contends that, Mahant used to manage the temple and its property. The Mahant was a Bachelor and used to nominate his successor from one of his disciples, who is also necessarily a bachelor. There was no regular mode of succession, but, the nominated Mahant shall get rights of the Management of the temple and the property. One Shri Shivgir Guru Harigir was the last Mahant. He did not nominate his chela (disciple). However, on 30.12.1347 Fasli, said Shivgir Guru Harigir had executed a Will deed under which a panch committee was appointed to manage and administer the above temple and the trust property. According to the applicants, respondent no.1 late Kedargir Guru Harigir was in occupation of the properties unauthorizedly and during his lifetime he had instituted a suit for cancellation of the aforesaid Will deed. It is further alleged that, respondent no.1 Kedargir Guru Harigir was disposing of the properties in dispute claiming it to be of his own. It has also alleged that, respondent Kedargir Guru sold land out of land Survey No.229 by dividing it into plots and appropriated the income derived from the said alienation. It has also contended that, the decision of the said Civil Suit went against respondent no.1. The applicants therefore, constrained to initiate the proceedings under the relevant provisions of the the Act of 1950 for registration of the Public Trust and its properties. b] During the course of the inquiry No.23 of 1983, the learned Assistant Charity Commissioner, Jalna, issued a public notice under the relevant provisions of the Rules of the Maharashtra Public Trusts Rules, 1951. In response to the notice, respondent no.1 Kedargir had raised his objection by filing his say at Exh.13. Respondent No.1 claimed that said temple is not a public trust and the property in dispute is not the trust property. According to him, he is the absolute owner thereof and the application, therefore, deserves to be dismissed. In response to the notice issued, the purchaser had also raised objection on the similar grounds with the addition that he is the bonafide purchaser for the value without notice. In response to the said notice, respondents no.3 to 6 by their joint say have also resisted the application on the ground that their father was the protected tenant of the land to the extent of 2 acres from eastern side and ownership certificate dated 13.10.1956 also came to be issued by the competent authority. They have denied all the allegations made by the applicants, however, according to them, their claim is restricted to the extent of 2 Acres of land and contended that the same is liable to be excluded from the said proceeding. Respondents No.7 and 8 are the purchasers and they have also strongly resisted the application. c] Both the parties have adduced oral as well as documentary evidence in support of their rival contentions. Furthermore, the learned Assistant Charity Commissioner, Jalna had inspected the spot and notes of inspection dated 30.10.1985 are marked at Exh.108. After hearing the parties, the learned Assistant Charity Commissioner, Sub Region, Jalna, by his Judgment and Order dated 15.1.1986 directed that said Shri Sheri Shiva Mandir, Shamprasad Garden, Jalna to be registered as a 'Public Trust' under section 20 of the Bombay Public Trusts Act, 1950 and certificate of "A" section is issued in the name of opponent Shri Kedargir Harigir in the capacity of Manager and further due entries be recorded in the register kept u/s 17 of the Bombay Public Trust Act, 1950. Further the applicants are advised to take legal steps for recovery of the properties which are alienated under unauthorized sale by the Manager within a period of three months and, failing which the Charity Office is directed to take steps for filing of the suit as mentioned above. The applicants further advised to make an application to the Joint Charity Commissioner, Aurangabad, for framing of a scheme under section 50A of the Act of 1950 within a period of two months from the order and, in case, no application is filed by the applicants or any interested persons, then, Charity Office should move for framing of the scheme suomotto.
(3.) Being aggrieved by the same, the original respondent no.1Kedargir Guru Harigir preferred an appeal No.4 of 1986 and original respondents No.2,7 and 8 preferred an appeal No.7 of 1986 before the Joint Charity Commissioner, Aurangabad. The learned Jt. Charity Commissioner, Aurangabad, by its Judgment and order dated 31.12.1990 allowed both the appeals and thereby quashed and set aside the Judgment and Order dated 15.1.1986 passed by the learned Assistant Charity Commissioner, Jalna in enquiry No.23 of 1983. The learned Jt. Charity Commissioner has rejected the application bearing enquiry No.23 of 1983.;


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