SECOND APPEAL NO.538 2005

Suit for declaration and possession challenging orders of Tenancy Tahsildar as null and void and not binding on the Public Trust.

Plaintiff sought declaration that the orders dated 30.9.1966 in Revenue Case nos.1087/59(13)/Dhotardi/63-64 and 1076/59/13/63-64 of village Dhotardi are null and void, not binding on the Trust, and that defendants have no right over the suit properties, and possession of the agricultural lands.

Allegations that the tenancy orders were obtained by fraud and collusion between Tulshiram and one trustee, without proper notice to all trustees, with misdescription of landlord as Gajanan Sansthan instead of Shambhugir Sansthan Trust, and without holding required enquiry; thus the orders are void ab initio.

Earlier Regular Civil Suit No.216/1996 for permanent injunction was dismissed on 29.10.1996 for want of jurisdiction. The trial court in the present suit dismissed it on 29.6.2002 holding lack of jurisdiction. The lower appellate court confirmed the dismissal on 23.2.2005.

Whether the civil court has jurisdiction to entertain a suit challenging the validity of tenancy orders under the Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958, when the orders are alleged to be void ab initio due to fraud and lack of notice. Whether the suit is barred by res judicata due to the earlier dismissal of a suit for injunction on the same subject matter. Whether the tenancy orders are void ab initio for non-impleadment of all trustees and misdescription of landlord.

The civil court has jurisdiction because the orders are null and void, as held in Madhav Kesu Khupse v. Sundrabai and Chandbi Amirshah v. Narayan Karnoo Lengure. All trustees were not noticed before the Tahsildar; only Pundlik Patil was noticed, and he colluded with Tulshiram. The landlord in the tenancy proceedings was wrongly shown as Gajanan Sansthan, not the plaintiff Trust. The suit lands were under State Government control until 1966 and auctioned annually, so no valid tenancy could have existed before 1966. No proper enquiry was conducted by the Tahsildar. The Trust held an Exemption Certificate dated 30.3.1960 under Section 129 of the Tenancy Act.

the orders sought to be declared as null and void dated 30.9.1966 ... under the provisions of the Tenancy Act could be challenged only under the provisions of the said Act and the said Act being a Special Act, the jurisdiction of civil Court is completely barred under Section 124 of the Tenancy Act. The trial Court ... dismissed the suit holding that it had no jurisdiction. The lower appellate Court confirmed the said decree. Heard. Admit. Taken up for final disposal in view of the fact that the appeal is pending since 2005 only for admission and it relates to the litigation which is old.

Plaintiffs filed Regular Civil Suit No.181/1997 on 14.2.1997 in the Court of Civil Judge, Senior Division, Akola. Earlier, Regular Civil Suit No.216/1996 filed by plaintiff for permanent injunction was dismissed on 29.10.1996 for want of jurisdiction. Trial court dismissed suit on 29.6.2002 for lack of jurisdiction. Appeal in Regular Civil Appeal No.166/2002 dismissed on 23.2.2005 by 4th Ad hoc Additional District Judge, Akola. Second Appeal No.538/2005 filed, admitted and taken up for final disposal on 07.12.2011.

• Bombay Tenancy and Agricultural Lands (Vidarbha Region) Act, 1958: 46, 48, 57, 124, 129
• Madhya Pradesh Public Trusts Act:
• Bombay Public Trusts Act, 1950: