1 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH AT NAGPUR. WRIT PETITION NO.3446 OF 2008. Durgadas Ramratan Sharma. vs.... Nathmal Kanayyalal Jain and ors. -------------------------------------------------------------------------------------------------------------------------------------- Office Notes, Office Memoranda of Coram, appearances, Court's Orders or Court's or Judge's Orders directions and Registrar's orders. Mr.R.G.Kavimandan, Adv. for the petitioner. Mr.B.N.Mohta, Adv. for respondent nos.1 and 2. Coram: J.H.BHATIA,J. Dated : 26th March, 2009. 1. Heard the learned counsel for the parties. 2. Respondents no.1 and 2 and two others claim to be the trustees of Shri Balaji Deosthan, Deulgaon Sakarshe, Tq.Mehkar, which is registered as public Trust. The said public trust was the owner of several properties. After obtaining the necessary permission, the trustees filed M.J.C.No.12 of 1989 before the district court for recovery of the properties from defendants no.1 to 10, as according to them, the said 2 defendants were in unlawful occupation of the properties of the trust. The defendant nos. 1 to 3 and 5 and 6 filed written statement. According to them, one Devidas Ramratan was the trustee and as a trustee he was in possession of certain lands and other properties of the Trust and in that capacity he was looking after the property. They also contended that after death of Devidas, they as his legal representatives, in the capacity of the Pujari continued to be in possession of the said property. According to them, they had expended the lot of money from their own pocket for the management of the trust and they are entitled to retain the possession of the Puja articles and other moveable and immoveable properties. According to them, they were also cultivating the land survey Nos.31 and 32 since their forefather i.e. since last more than 50 years, and accordingly their names were recorded. They contended that the civil court has no jurisdiction to entertain the proceedings. 3. On the basis of pleadings of the parties, several issues were framed. Issue no.4 was as follows - “Whether defendants prove that they are protected lessees of suit land and this court has got no jurisdiction ? 3 Defendant nos.1 to 5 made an application (Exh.57) before the District court to refer this issue to the Tenancy Court. That application was contested by the plaintiffs. After hearing the parties and taking into consideration the pleadings of the defendants, the district court rejected the said application and observed that issue no.4 was not properly framed. The district court also reframed that issue as follows - “Do defendants prove that jurisdiction to entertain present suit by Civil court is ousted in view of decision of Tenancy Court, given in Tenancy Case No.378/59/13/63-64 of village Sakharsha ? Original defendant no.2 has filed the present petition challenging that order. 4. On careful perusal of the written statement of the defendants including the present petitioner, it becomes clear that they clearly claimed that some of the properties of the trust was in possession of Devidas as a trustee and the petitioners, being legal 4 representatives of said Devidas, are looking after the said trust property. In view of their pleadings in para no.21 and 22 of the written statement, it is clear that the present petitioner and other defendants clearly claimed to be in possession and management of the property as legal heirs of Devidas, who was in possession of the said property as a trustee. In para no.23, there is only reference to the above referred tenancy proceedings and it is contended that in view of the findings given by the Tenancy Court the possession of these defendants over the property in question is legal one and the civil court has no jurisdiction. In the whole written statement, no where these defendants specifically pleaded as to how they or any of their forefather had become tenant of the property, who had created the tenancy, how tenancy was created. In absence of any pleadings about the contract of tenancy and in view of the specific pleadings that they, being Pujari of the trust and being legal heirs of deceased Devidas, who was the trustee, are in possession and managing the property, the plea of tenancy runs contrary to their plea of possession as Pujari and trustee. In absence of any 5 specific pleadings as to how they had become the tenants, there was no need to frame issueno.4 and to refer the same to the tenancy court. It appears that the present petitioner and other defendants, who are not parties to the present petition, simply wants to protract the litigation and for that purpose said application was filed. Taking into consideration these circumstances, I find no fault with the impugned order passed by the district court. 5. For the aforesaid reasons, the petition, being devoid of any merits, stands dismissed. JUDGE. Chute