1 sa686.10 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD SECOND APPEAL NO. 686 OF 2010 WITH CIVIL APPLICATION NO.14539 OF 2010 Manikrao s/o Sampat Jadhav, Age: 54 years, Occ: Agri., R/o. Wavana, Tal. Phulambri, Dist. Aurangabad & Ors. ...APPELLANTS VERSUS Maruti Mandir, Taluka Phulambri, Dist.Aurangabad through its Administrator, Aarchak s/o Sandu Martand Kakulte, Age: 72 yrs, Occ: Agri., R/o. Nidhona, Tal. Phulambri, Dist. Aurangabad. At present residing at Pishor, Tq.Kannad, District Aurangabad. ...RESPONDENT ... Mr. H.H. Padalkar, Advocate holding for Mr. Rajendra Deshmukh, Advocate for appellants/applicants. Mr. K.U. Nikam, Advocate for respondent sole. ... CORAM: S.S. SHINDE, J. DATE : 8TH DECEMBER, 2011 PER COURT : . Heard learned Counsel for the appellants and learned Counsel for the respondent. 2 sa686.10 2. Learned Counsel for the appellants submits that, the mandate of Sections 50 and 51 of the Bombay Public Trusts Act contemplates that, even filing the suit against the trespassers, prior permission of the Charity Commissioner is necessary. Learned Counsel for the appellants further submits that, the suit was filed in the year 1974 for the possession of the suit property. The said suit was dismissed. The appeal which was filed against the dismissal of the said suit, was also dismissed. The judgment and order passed in the suit attended finality in the appeal. Therefore, the said issue cannot be reopened. Hence, the suit is not within limitation. Learned Counsel for the appellants invited my attention to the grounds taken in the second appeal and submits that, in view of the judgment of the Supreme Court in the case of Sainath Mandir Trust vs. Vijaya and others, reported in A.I.R. 2011 S.C. 389 and in particular para-19 of the said judgment, prior permission of the Charity Commissioner for 3 sa686.10 instituting the suit even against the trespasser is necessary. Therefore, second appeal deserves consideration. 3. Learned Counsel appearing for the respondent submits that, prior permission of the Charity Commissioner is not necessary. He placed reliance upon the judgment of this Court in the case of Gafoor Ali Hussain and others vs. Ram Mahadik and others, reported in 2000(1) M.L.J. 436 and submitted that, the point which is raised in this second appeal is no more res integra and is covered by the aforesaid pronouncement of this Court. Learned Counsel further submits that, the trust was not registered prior to 1990. There was objection by the appellants herein for registration of the said trust. The said trust came to be registered in 2003 and therefore, the Counsel would submit that, no prior permission of the Charity Commissioner was necessary before instituting the suit. 4 sa686.10 4. I have given due consideration to the rival submissions. The point raised in the second appeal is answered by the authoritative pronouncement of this Court in the case of Gafoor Ali Hussain and others vs. Ram Mahadik and others (supra). This Court dealing with similar contention, has taken a view that the suit filed by the trustees of a public trust for eviction of trespasser from its property and recovery of possession, no prior permission of the Charity Commissioner is necessary. This Court is bound by the said pronouncement. 5. The second point which is raised by the Counsel for the appellants that the earlier suit was filed by the respondent and same came to be dismissed. Said suit was for recovery of the possession and the judgment in the said suit was challenged in the appeal and the appeal was also dismissed. Therefore, that judgment has attended finality. In this respect, the submission of the Counsel for the respondent is required to be 5 sa686.10 accepted that the suit was not filed by the respondent. It was filed by the third party who was not owner of the property. Both the Courts have taken a view that, there was no any bar for fresh suit. Therefore, viewed from any angle and from perusal of the grounds taken in the second appeal, none of the grounds appeal to this Court to consider the second appeal. Second Appeal does not raise any substantial question of law for consideration. Same stands rejected. Consequently, Civil Application stands rejected. . At this stage, learned Counsel appearing for the appellants prays for continuation of the stay. However, said prayer is rejected in the facts and circumstances of this case, since the property belongs to the Trust. [S.S. SHINDE, J.] sut/DEC11