( 1 ) IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD APPEAL FROM ORDER NO. 111 OF 2004 WITH CIVIL APPLICATION NO. 10929 OF 2004 AND WRIT PETITION NO. 693 OF 2005 WITH CIVIL APPLICATION NO. 10712 OF 2006 * * * * * APPEAL FROM ORDER NO. 111 OF 2004 WITH CIVIL APPLICATION NO. 10929 OF 2004 1. Ajay Sureshchandra Agrawal .. Appellant Age. 34 years, Occ. Business & Agri., R/o. Plot No. 55, Abhay Nagar, Dhule – 424001. 2. Vipul Babanlal Agrawal, Age. 24 years, Occ. Business & Agri., R/o. Adarsha Nagar, At Post – Shirpur, Dist. Dhule. 3. Santosh Dwarkadas Agrawal, Age. 35 years, Occ. Business & Agri., R/o. Govind Bhuvan, Opp. Tahasil Office, Iqbal Road, Gat No.1, Dhule – 424001. 4. Sandeep Dwarkadas Agrawal, Age. 31 years, Occ. Business & Agri., R/o. Govind Bhuvan, Opp. Tahasil Office, ( 2 ) Iqbal Road, Gat No.1, Dhule – 424001. 5. Ajay Balmukund Pasari, Age. 43 years, Occ. Business & Agri., R/o. Satyanarayan Oil Mill, Parola Road, Dhule – 424001. 6. Dipak Balmukund Pasari Age. 41 years, Occ. Business & Agri., R/o. Satyanarayan Oil Mill, Parola Road, Dhule – 424001. Versus 1. Shri Khandesh Goseva Shramantargat .. Respondents Goshala, Dhule. Malegaon Road, Dhule, Dist. Dhule. 2. The Charity Commissioner, Mumbai. 3. Radheshyam Shriram Poddar, Age. 65 years, Occ. Business, R/o. C/o. M/s. Bholaram Joharmal, Near Panch Kandil, Agra Road, Dhule -424001. 4. Mohanlal Shaligram Bhartiya, Age. 68 years, Occ. Nil, R/o. Bhartiya Bunglow, Station Road, Dhule – 424001. 5. Balmukund Shriram Poddar Age. 63 years, Occ. Manager, Shri Khandesh Goseva Shramantargat Goshala, Dhule. 6. Ravindra Savarmalji Agrawal, Age. 55 years, Occ. Business, R/o. 4th Floor, Mayumeshan-325, Kalbadevi Road, Mumbai. ( 3 ) 7. Puranmal Baluram Agrawal, Age. 76 years, Occ. Business, R/o. Opp. Maharashtra Medical, Agra Road, Dhule -424001. 8. Pralhadrai Bherubagas Agarwal, Age. 62 years, Occ. Business, R/o. Shri Oil Mill Compound, Opp. Chimanlal Petrol Pump, Malegaon Road, Dhule -424001. 9. Gopaldas Jamnadas Mishra, Age. 58 years, Occ. Business, R/o. Vallabh Nagar, Malegaon Raod, Dhule -424001. 10. Subhashchandra Chothmal Agrawal, Age. 58 years, Occ. Business, R/o. Agrawal Transport, Barafattar, Dhule – 424001. 11. Kamalkishor Pusmal Agrawal, Age. 58 years, Occ. Business, R/o. Near Sapat Tea Showroom, Agra Road, Dhule – 424001. 12. Balmukund Sitaram Pasari, Age. 63 years, Occ. Business, R/o. C/o. Satyanarayan Oil, Parola Road, Dhule – 424001. 13. Nandkishor Kanhyyailal Agrawal, Age. 50 years, Occ. Business, R/o. Agra Road, Near Panch Kandil, Dhule – 424001. 14. The Collector, Dhule. Dist. Dhule. 15. The Tahasildar, Dhule. Dist. Dhule. ( 4 ) 16. The Talathi, Dhule City, Dist. Dhule. 17. Babulal Shaligram Bhartiya, Age. 71 years, Occ. Business, R/o. M/s. Bhartiya Motors, Opp. Shivaji Statue, Malegaon Road & Chalisgaon Road, Near Chaufuli, Agra Road, Dhule, Dist. Dhule. Shri R.N. Dhorde, Advocate for the appellants. Shri S.P. Brahme, Advocate for respondent Nos.1,3-5,9 to 12. Shri V.P. Latange, Advocate for respondent No.13. AND WRIT PETITION NO. 693 OF 2005 WITH CIVIL APPLICATION NO. 10712 OF 2006 Mohanlal Shaligram Bhartiya, .. Petitioner Age. 68 years, Occ. Nil, R/o. Bhartiya Bunglow, Station Road, Dhule – 424001. Versus 1. Nandkishor Kanhyyailal Agrawal, .. Respondents Age. 50 years, Occ. Business, R/o. Agra Road, Near Panch Kandil, Dhule – 424001. 2. Khandesh Goseva, under the Goshala, Dhule, Majalgaon Road, Dhule. 3. The Charity Commissioner, Mumbai ( 5 ) Joint Charity Commissioner, Dowarka Circle, Nasik Road, Nasik. 4. Radheshyam Shriram Poddar, Age. 65 years, Occ. Business, R/o. C/o. M/s. Bholaram Joharmal, Near Panch Kandil, Agra Road, Dhule -424001. 5. Balmukund Shriram Poddar Age. 63 years, Occ. Manager, Shri Khandesh Goseva Shramantargat Goshala, Dhule. 6. Ravindra Savarmalji Agrawal, Age. 55 years, Occ. Business, R/o. 4th Floor, Mayumeshan-325, Kalbadevi Road, Mumbai. 7. Puranmal Baluram Agrawal, Age. 76 years, Occ. Business, R/o. Opp. Maharashtra Medical, Agra Road, Dhule -424001. 8. Pralhadrai Bherubagas Agarwal, Age. 62 years, Occ. Business, R/o. Shri Oil Mill Compound, Opp. Chimanlal Petrol Pump, Malegaon Road, Dhule -424001. 9. Gopaldas Jamnadas Mishra, Age. 58 years, Occ. Business, R/o. Vallabh Nagar, Malegaon Raod, Dhule -424001. 10. Subhashchandra Chothmal Agrawal, Age. 58 years, Occ. Business, R/o. Agrawal Transport, Barafattar, Dhule – 424001. 11. Kamalkishor Pusmal Agrawal, Age. 58 years, Occ. Business, R/o. Near Sapat Tea Showroom, ( 6 ) Agra Road, Dhule – 424001. 12. Balmukund Sitaram Pasari, Age. 63 years, Occ. Business, R/o. C/o. Satyanarayan Oil, Parola Road, Dhule – 424001. 13. Ajay Sureshchandra Agrawal Age. 34 years, Occ. Business & Agri., R/o. Plot No. 55, Abhay Nagar, Dhule – 424001. 14. Vipul Babanlal Agrawal, Age. 24 years, Occ. Business & Agri., R/o. Adarsha Nagar, At Post – Shirpur, Dist. Dhule. 15. Santosh Dwarkadas Agrawal, Age. 35 years, Occ. Business & Agri., R/o. Govind Bhuvan, Opp. Tahasil Office, Iqbal Road, Gat No.1, Dhule – 424001. 16. Sandeep Dwarkadas Agrawal, Age. 31 years, Occ. Business & Agri., R/o. Govind Bhuvan, Opp. Tahasil Office, Iqbal Road, Gat No.1, Dhule – 424001. 17. Ajay Balmukund Pasari, Age. 43 years, Occ. Business & Agri., R/o. Satyanarayan Oil Mill, Parola Road, Dhule – 424001. 18. Dipak Balmukund Pasari Age. 41 years, Occ. Business & Agri., R/o. Satyanarayan Oil Mill, Parola Road, Dhule – 424001. 19. The Collector, Dhule. Dist. Dhule. 20. The Tahasildar, Dhule. ( 7 ) Dist. Dhule. 21. The Talathi, Dhule City, Dist. Dhule. (resp. No. 19 to 21 deleted as per leave dated 14.07.2005) 22. Babulal Shaligram Bhartiya, Age. 71 years, Occ. Business, R/o. M/s. Bhartiya Motors, Opp. Shivaji Statue, Malegaon Road & Chalisgaon Road, Near Chaufuli, Agra Road, Dhule, Dist. Dhule. Shri S.P. Brahme, Advocate for the petitioners. Shri V.P. Latange, Advocate for respondent Nos. 1,6,7 & 8. CORAM : P.R. BORKAR,J. RESERVED ON : 10.08.2009 PRONOUNCED ON : 12.08.2009 J U D G M E N T :- 1. The appeal from order which is directed against order passed on Exh.30 in Special Civil Suit No. 29 of 2004 decided on 30.08.2004, by Jt. Civil Judge, Senior Division, Dhule, can be conveniently disposed of with Writ Petition No. 693 of 2005 by which grievance was made that while deciding ( 8 ) application Exh. 30, preliminary issue regarding jurisdiction was decided simultaneously; the decision on preliminary issue of jurisdiction was wrongly decided without notice to the petitioner and that the suit itself ought to have been disposed of as not tenable. 2. Briefly stated facts giving rise to the appeal from order and the writ petition may be stated as below :- . Original defendant No.22 Babulal Bhartiya was original owner of Survey No.483/3-B admeasuring 1 Hectare situated at Dhule, as fully described in plaint paragraph 4 (hereinafter referred to as “suit property). Plaintiff Nandkishor Kanhaiyalal Agarwal (who is respondent No. 13 in the appeal from order and respondent No.1 in the writ petition) filed the suit stating that said suit property was in possession of original defendant No.1 – Shri Khandesh Goseva Shramantargat Goshala, Dhule. It is a registered public trust of which defendant Nos. 3 to 12 are trustees. As per plaintiff Nandkishor the trust had been in possession of the suit property for 70 years prior to filing of the suit and the trust is protected tenant of the suit property and ( 9 ) mutation entries to that effect were taken in the revenue record. Defendant No.4 Mohanlal is also heir of original owner Shaligram Bhartiya and he has filed the writ petition. 3. By resolution passed on 02.09.2001 by the trustees of defendant No.1 – trust, resolution No.6 was passed stating that the suit property was standing in the name of Shaligram Ramchandra Bhartiya and the trust was possessing it. Defendant No.4 Mohanlal Bhartiya had given letter on 22.08.2001 for surrendering the land, and all rights to consider the legal aspects were given to the president of the trust who is original defendant No.3 Radheshyam Potdar. By resolution No. 7 it was further resolved that it was not economically viable to take grass crop from the suit land by the trust and therefore the land be surrendered to defendant No.4 Mohanlal and all rights in respect of the same were given to Radheshyam Potdar (defendant No.3). On 29.04.2003 the sale-deed was executed in favour of defendant Nos. 13 to 18 by Mohanlal Shaligram Agrawal – defendant No.4. It is this sale-deed which is challenged by plaintiff – Nandkishor by filing Special Civil Suit No. 1012 of 2004. Thereby he sought declaration that the resolution passed on 02.09.2001 ( 10 ) was illegal, fraudulent and null & void; the transfer effected by defendant No.1 in favour of defendant No. 4 Mohanlal was also illegal and null and void; the sale-deed executed by defendant No.4 in favour of defendant Nos. 13 to 18 was also illegal and void and consequent mutations regarding sale-deed be also held to be void and illegal. Original prayer clause (E) was to the effect that defendant Nos. 19 to 21 (which are Government Officials) should take possession from defendant Nos. 13 to 18 and hand it over to defendant No.1 – Trust. 4. Plaintiff – Nandkishor filed application Ex.30 for injunction restraining defendant No. 13 to 18 from alienating or transferring the suit property pending the suit. Notice of the same was only given to defendant Nos. 13 to 18. Copy of application Exh.30 is produced at Exh. “F” in the writ petition. It is case of defendant No.4 Mohanlal who is writ petitioner that no notice of application Exh.30 was given to him and while deciding application Exh.30, issue of jurisdcition was also considered and it was held that the Civil Court has jurisdiction. At the same time no notice of Exh.30 was given to defendant No.4 Mohanlal. It is also ( 11 ) argued that defendant No.4 and defendant Nos. 13 to 18 had given applications Exh. 76 and 78 for framing preliminary issue regarding jurisdiction of the Court. The Civil Court by its order dated 30.08.2004 allowed application Exh.30 and restrained defendant Nos. 13 to 18 from transferring or alienating or selling suit property to any one or creating any encumbrances on the suit-property till decision of the suit. It is this order, which is challenged by defendant Nos. 13 to 18 in Appeal From Order No. 111 of 2004. 5. Heard Shri R.N. Dhorde, Advocate for original defendant Nos. 8 to 13 who have filed the Appeal From Order No. 111 of 2004, Shri S.P. Brahme for original defendant No.4 who has filed writ petition No. 693 of 2005 and Shri V.P. Latange, who appears for original plaintiff. No one is present for rest of the respondents/defendants. 6. On perusal of order below application Exh.30, copy of which is produced at Exh. “F” in the writ petition, it appears that after filing application Exh.30, the learned Civil Judge issued notices only to defendant Nos. 13 to 18. The order shows that defendant Nos. 13,15 to 18 filed their ( 12 ) say Exh.64 on the application. It does not appear that notices were given to other defendants or they filed any say. No doubt application Exh.30 was restricted to the prayer against defendant Nos. 13 to 18, who were purchasers, from alienating or creating third party interest pending the suit. But it is objection of defendant No.4 Mohanlal who is writ petitioner that issue of jurisdiction was simultaneously decided while deciding application Exh.30 and he was not heard. It does not appear from the order below Exh.30 even from para 8 that the advocates of defendant No.4 or other defendants were heard. So, in my opinion, so far as the issue of jurisdiction is concerned, the learned Civil Judge ought to have heard all the defendants and not only defendant Nos. 13 to 18. 7. It is argued before this Court on behalf of the appellants i.e. original defendant Nos. 13 to 18 that the suit was not immediately filed. The sale-deed was executed on 29.04.2003 and the suit was filed on 10.02.2004. Immediately after resolution on 02.09.2001 and its approval in the meeting on 14.10.2001, public notice was given which is published in local news paper “Deshdoot”, copy of which is ( 13 ) produced at Exh. “F” in Civil Application No. 10929 of 2004 filed with the Appeal From Order. The plaintiff though was not present in the meeting of trustees held on 02.09.2001, he was present in the meeting held on 14.10.2001 and on that day minutes of earlier meeting were read out and confirmed. In my opinion that alone is not sufficient for not granting interim injunction. The question of disposal of trust property has arisen. The trust is said to be protected tenant. The plaintiff claimed that mutation regarding rights of trust as protected tenant were taken in the revenue record. Resolution No. 6 dated 02.09.2001 itself shows that the property was in possession of the trust. The provisions of the Bombay Tenancy and Agricultural Lands Act will have to be considered. It will have to be considered whether tenancy right of a trust can be extinguished merely by a resolution passed by the board of trustees. There are special provisions contained in the Bombay Tenancy and Agricultural Lands Act regarding surrender of tenancy. Question of disposal of property without permission of the Charity Commissioner needs to be considered in view of provisions of the Bombay Public Trusts Act, 1950. In my opinion, there are no sufficient reasons for interfering with the order of ( 14 ) temporary injunction granted by the learned Civil Judge by order on Exh.30. Therefore, in my opinion, Appeal From Order No. 111 of 2004 has no merit. 8. However, so far as Writ Petition No. 693 of 2005 is concerned, the issue of jurisdiction ought to have been decided after hearing the plaintiff and all defendants and not by hearing only the plaintiff defendant Nos. 13 to 18. In my opinion, the proper course is to remand the matter for hearing. It is argued before this Court that the suit in absence of prayer for possession will not be tenable. Reference was made to proviso to Section 34 of the Specific Relief Act. As per said proviso no Court shall make any such declaration of title (regarding status or right or legal character or right to property) where the plaintiff, being able to seek further relief than a mere declaration of title, omits to do so. 9. In this case prima facie defendant No.1 trust was protected tenant. Relief of possession can be claimed even under the Bombay Tenancy and Agricultural Lands Act by such tenant. I keep the issue of jurisdiction open. In my ( 15 ) considered opinion the issue of jurisdiction needs to be considered afresh by the Trial Court. As held in the case of Rt.Rev. Dr. Ignatius D’Cunha and anr. V/s. Rev. Father Denis s/o. Chittarajan Kamath, 1992 (1) Bom.C.R.647, the composite issues regarding grant of temporary injunction and jurisdiction ought not to have been decided while deciding application for temporary injunction without placing the parties to notice that the Court intends to decide question of jurisdiction as part of application Exh.30 for temporary injunction. 10. In this view of the matter Appeal From Order No. 111 of 2004 is dismissed. The order of temporary injunction passed by the learned Civil Judge is hereby confirmed. However, the order regarding jurisdiction passed by the Civil Judge as part of discussion of application Exh.30 for temporary injunction is hereby set aside and the Civil Judge is directed to consider the issue of jurisdiction separately after giving notice to all the parties. Already applications Exh.76 and 78 are filed regarding said question of jurisdiction, particularly. whether the suit for declaration would be tenable when prayer for possession (already added) ( 16 ) was deleted. Considering the fact that the suit is old one, the Trial Court is directed to decide said issue expeditiously as far as possible within a period of four months from this order. 11. In view of disposal of the appeal from order and the writ petition, the connected Civil Applications do not survive. The Civil Applications stand disposed of. [P.R. BORKAR,J.] snk/2009/AUG09/ao111.04