( 1 ) cra40.11 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD CIVIL REVISION APPLICATION NO. 40 OF 2011 Mohanlal s/o. Shaligram Bhartiya .. Applicant Versus Nandkishor Kanhaiyalal Agrawal & Ors. .. Respondent Mr. A.V. Anturkar i/b. Mr. S.P. Brahme, Advocate for the applicant. Mr. V.P. Latange, Advocate for respondent No.1. Mr. S.S. Mundhe, Advocate for respondent Nos. 2,4,5 and 12. Mr. P.B. Pawar, Advocate for respondent nos. 13 to 18. CORAM : A.V. NIRGUDE, J. DATED : 16.08.2011 P.C. :- 1. This Civil Revision Application takes exception to the order dated 9th April, 2010, holding that respondent Nos. 1’s suit (Special Civil Suit No. 29 of 2004) is maintainable in the Civil Court. 2. The cause of action for the suit in short can be stated as under :- 3. Respondent No.1/plaintiff is one of the trustees of applicant No.2 – a public trust registered at Dhule. Respondent No. 4 to 12 are co-trustees of respondent No.1/ ( 2 ) cra40.11 plaintiff. It is further admitted fact that the trustees hold certain agricultural land on behalf of the trust as protected tenant, which is the subject matter of this litigation. It is also common ground that the trustees in absence of respondent No.1/plaintiff passed resolution proposing to alienate the suit property in favour of respondent Nos. 13 to 18 and accordingly they registered a sale-deed of the suit property in favour of these parties. When respondent No.1/plaintiff learnt about it, he raised objection, but in-vain. He, therefore, filed this suit initially for declaration that the act committed by the trustees were illegal and for recovery of possession of the suit land. During the pendency of the suit, respondent No.1 was allowed to make the Charity Commissioner as party to the suit and thereafter respondent No.1/plaintiff deleted prayer of possession. With this deletion, the suit became a suit simplicitor for declaration about the acts done by the trustees in respect of the suit property. The applicants/defendants raised objection to the maintainability of the suit under Section 9-A of the C.P.C. 4. A preliminary issue was framed as to whether the Civil Court had jurisdiction to decide the suit. The main bone contention of the applicants is that the suit is barred because respondent No.1/plaintiff did not obtain consent of the Charity Commissioner required under Section 51 of the Bombay Public Trusts Act for filing of the suit. As said above, respondent No.1/plaintiff admittedly did not seek ( 3 ) cra40.11 consent from the Charity Commissioner before filing of the suit. The question, therefore, is whether respondent No.1/ plaintiff could have maintained this suit without express consent of the Charity Commissioner, as required under Section 51. The answer to this question is found in judgment of Division Bench of this Court in the case of Amirchand Tulsiram Gupta and Ors. V/s. Vasant Dhanaji Patil & Ors., 1992 (2) Bom.C.R. 22. The question before the Division Bench was whether a trustee can file a suit for recovery of possession of trust property from the trespassers without obtaining consent of the Charity Commissioner under Section 51 of the Bombay Public Trusts Act. The answer to this question was given in affirmative and the Division Bench placed reliance on various judgments including the judgment of the Supreme Court in the case of Gollaleshwar Dev of Golgari Vs. Gangawa Kom Shantayya math, 1986 AUR (SC) 231, in which the Supreme Court clearly held that Section 50 of the Bombay Public Trusts Act created and regulated a right to institute a suit by the Charity Commissioner or two or more persons interested in the trust, in the form of supplementary statutory provision without defeasance of the right of the manager or a trustee to recover the property of the trust in the “usual way”. The Supreme Court took a view that the right of a trustee to bring the suit in usual way i.e. in exercise of right under common law is not affected by the provisions of Section 50 of the Bombay Public Trusts Act. This judgment also made a reference to various other judgments of other High Courts and of this Court and in view ( 4 ) cra40.11 of this authoritative pronouncement of law on this point, I do not find it necessary to go further into the question as to whether respondent No.1/plaintiff could have maintained the suit. As said above, since he is one of the trustees and since it is his civil right to make complaint about certain acts, which according to him were illegal and for possession of the suit property. 5. In-deed, the second objection based on S.34 of Specif Relief Act is pertinent and would go to the root of the suit. The cause of action required respondent No. 1/plaintiff that he ought to have sought relief of declaration and since the cause of action also required him to take possession of the suit property back from the defendants who are in allegedly wrongful possession, he ought to have added such relief in the plaint. In-fact, as said above, said relief was in existence and it seems, respondent No.1 unnecessarily deleted such prayer. The learned Counsel appearing for respondent No.1/ plaintiff stated that he would make an appropriate application for inclusion of such prayer in the plaint, if the matter is sent back to the Trial Court. Of course, if such application is made, the same would be considered on merits of the application and would be decided as per the law. If such relief is sought and if it is included in the pleading, it would be subject to the law of limitation and payment of Court fees, if required. 6. In view of this, the civil revision application is disposed of with following directions :- ( 5 ) cra40.11 (i) The suit is held to be maintainable provided respondent No.1/plaintiff succeeds in getting the proposed amendment in the plaint seeking prayer of possession. (ii) Such application shall be made within two weeks from the date of communication of this order to the Lower Court. (iii) Such application shall be decided expeditiously. [A.V. NIRGUDE, J.] snk/2011/AUG11/cra40.11ok