VINEET KOTHARI, J. - (1.) THIS misc. appeal has been filed under Section 40(3) of the Rajasthan Public Trust Act, 1959 (hereinafter referred to as the Act of 1959) against the order of the learned Additional Dist. and Sessions Judge No. 3, Jodhpur dtd. 23.7.2001 dismissing the civil misc. application No. 4 -A/1991 filed by the appellant under Section 40 of the said Act seeking to set aside the sale made by the respondent No. 1 - Public Trust in favour of the respondent No. 5 - a Housing Society of a land measuring 53.11 bighas situated at village Gewa, Dist. Jodhpur on 18.10.1985 for a sum of Rs. 9,55,557/ -.
(2.) NONE appeared for the appellant on both the days though the matter was heard in part on 17.3.2009 and again kept today for dictation of order/judgment, therefore, the arguments of Mr. J.M. Bhandari, learned Counsel for the respondents were heard and record was perused. The main contentions raised by the applicant before the learned trial Court in the application under Section 40 of the Act appears to be that the sale in question made by the respondent No. 1 - Public Trust on 18.10.1985 was without any sanction obtained from the Assistant Commissioner, Devasthan Department as required by Section 31 of the said Act and therefore, the said sale was not valid. The applicant also contended that the land in question belonged to deity and therefore, the Public Trust could not sell the said land. He also contended that the provisions of Rajasthan Urban Land Ceiling Act applied and therefore, for this reason also, the land in question could not be sold by the respondent - Public Trust. It was also contended before the Court below that despite the order dtd. 23.8.1986 passed by learned Commissioner, Devasthan Department, the sale in question was affected by the Public Trust contrary to the said order and. therefore, the said was invalid.
(3.) THE said application was opposed by the respondents and the learned trial Court framed following five issues for consideration: i) Whether the sale -deed dtd 18.10.1985 for sale of property by Bherubagh Jain Tirth Trust, Sardarpura, Jodhpur is liable to be cancelled as per the facts stated in the application and whether the order dtd. 23.8.1986 passed by the Commissioner Deveasthan, Udaipur is void and ineffective? ii) Whether the applicant is entitled to permanent injunction against the non -applicant against the transfer of Trust property and not to permit anybody else to possess the property of the trust and not to raise construction thereon? iii) Whether in view of the specific plea in para 19 raised by the non -applicant No. 4, the application under Section 40 of the Rajasthan Public Trust Act is maintainable or not and whether under the said' provisions, a registered sale -deed can be cancelled? iv) Whether the application deserves to be dismissed as not maintainable in absence of non -impleadment of Sh. Jain Swetambar Bherubagh Parshwanath Jain Tirth Trust? v) Relief. ;