1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY ORDINARY ORIGINAL CIVIL JURISDICTION APPEAL NO.129 OF 2005 IN S.C.SUIT NO.964 OF 1998 Mahant Brij Biharidas Tyagi ...Appellant v/s Shri Bhagwandas Ramdasji Charitable and Religious Trust and others ...Respondents Ms Gauri Jadhav for Appellant. None for Respondents. CORAM : D.K. DESHMUKH AND V.R. KINGAONKAR JJ. DATE : 25TH MARCH 2010. 2 P.C. :- 1] By this appeal, the appellant challenges the order passed by the learned Single Judge of this Court dated 7th January 2003 dismissing S.C. Suit No.964 of 1998. That suit was filed by the present appellant claiming a decree of declaration that he is Mahant of respondent No.1 Trust and that he is entitled to decree of possession of a part of the room which is admittedly owned by the Trust. 2] The learned Single Judge, on the basis of rival pleadings, framed following issues :- 1]Whether the plaintiff proves that he is the rightful Mahant of the Trust as alleged in paragraph 1 of the plaint and denied in paragraph 8 of the written statement ? 2] Whether the plaintiff proves that he was residing in and was in exclusive possession, use and occupation of one room 3 on the ground floor and two rooms on the first floor of the suit premises as alleged in paragraph 1 of the plaint and denied in paragraph 8 of the written statement ? 3] Whether the defendants prove that the defendant took forcible possession of the suit premises by breaking open the lock of the plaintiff ? 4] Whether the defendants prove that the sit is not maintainable as required under sections 50 and 51 of Bombay Public Trusts Act 1950 ? 5] Whether the defendants prove that the suit is bad in law for non-joinder of necessary parties i.e. Charity Commissioner under provisions of Bombay Public Trusts Act 1950 ? 6] Whether the defendants prove that 4 during the time of alleged employment the plaintiff was permitted to occupy the premises by virtue of his position as Mahant without any right, title, interest or claim in the premises ? 7] Whether the defendants prove that they have appointed another person as Pujari as alleged in paragraph 6 of the written statement ? 8] Whether the plaintiff is entitled to get back the possession of suit premises ? 9] What order and relief ? The learned Single Judge, while deciding issue Nos.4 and 5, held that permission of the Charity Commissioner was necessary for institution of suit and that permission has not been taken, therefore the suit is not maintainable. He also held that the Charity Commissioner was a necessary party 5 to the suit and therefore, the suit is bad for non- joinder of the necessary parties. While deciding issue Nos.1 to 3, 6, 7 and 8, the learned Single Judge held that though it appears that the plaintiff was appointed as Mahant of the temple, his appointment is not in accordance with the scheme which is in force and sanctioned by the Charity Commissioner in application No.271 of 1979. The learned Single Judge also found that the plaintiff is not entitled to a decree of possession because his appointment as Mahant is not in consonance with the scheme which is in force. 3] The learned counsel appearing for appellant relied on two judgments of the Supreme Court viz. Vinayaka Dev Idagunji and others v/s Shivaram and others, reported in AIR 2005 SC 3081 and Vidyodaya Trust v/s Mohan Prasad R. and others, reported in AIR 2008 SC 1633 to contend that the learned Single Judge was not justified in saying that consent of the Charity Commissioner was necessary for institution of the suit. In our opinion, even if 6 the submission of the leaned counsel appearing for appellant that permission of the Charity Commissioner was not necessary for institution of the suit is accepted, then also no relief can be granted to the appellant in this appeal because it is common ground before us that the appointment of the appellant is not in consonance with the new scheme. It is also common ground that though the order sanctioning the scheme is challenged in writ petition filed in this Court, there is no interim order operating and it is the new scheme which is in force. If the new scheme is in force and admittedly, the appointment of the appellant as Mahant is not consonance with that scheme, then in our opinion, no exception can be taken to the finding recorded by the learned Single Judge that the appointment of the appellant is not valid. If the appointment of the appellant is not valid, obviously it will not be in the interest of justice to put him in possession of a part of the property which is admittedly Trust s property. In this view of the matter therefore, in our opinion, no relief 7 can be granted to the appellants. Appeal therefore fails and is dismissed with no order as to costs. Parties to act on the copy of this order duly authenticated by the Associate / Private Secretary of this Court. Certified copy expedited. (JUSTICE D.K. DESHMUKH) (JUSTICE V.R. KINGAONKAR)