9911796707
TMI Blog1960 (8) TMI 107X X X X Extracts X X X X X X X X Extracts X X X X ..... filed civil suit No. 4-A of 1949 praying inter alia for the removal of the appellant Bhagwan from the trusteeship and Sarpanchship of the Deosthan and for various other directions. The other surviving trustees, namely, Laxman Gangaram Deshmukh and Dada Vithoba Khasala were defendants in that suit. On August 7, 1950, a preliminary decree was passed by the First Additional District Judge, Yeotmal, giving certain directions which are material for the purposes of this appeal but disallowing the prayer for the removal of the appellant from the trusteeship. Against this decree the appellant Bhagwan moved the then High Court at Nagpur in First Appeal No. 150 of 1950 and by the judgment of a Division Bench of this Court dated November 28, 1956, the appeal was dismissed. A cross-appeal filed by the plaintiffs in the suit praying that their prayer for the removal of the appellant Bhagwan had been wrongly disallowed was also dismissed, with the result that the appellant Bhagwan continued as the Sarpanch and trustee of the said Deosthan but was subject to the directions given in the two decrees. In those proceedings in para. 17 of the trial Court's judgment dated August 7, 1950, the follo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the preliminary decree or the final decree, nor had he deposited the amount due under the final decree for a period of nearly seven years from the date of the final decree. 4. One of the prayers in the present application was that defendant No. 1 Bhagwan should be removed from the management of the trust property and as a Panch and that the said property should be entrusted to some other Panchas. After considerable delay the defendant Bhagwan filed a reply to this application and denied all the allegations made therein except that he admitted that a decree had been passed against him for a sum of ₹ 1,000-14-9. In regard to this amount his reply was that since he was himself the Sarpanch and the money was ultimately to be paid to him, he had not paid the money to the Deosthan because he himself would have received it. At the stage of evidence, however, the defendant Bhagwan remained absent. He was put ex parte and the application dated October 19, 1957, has been allowed against him upon the ex parte evidence of plaintiff No, 2 Battatraya. The learned trial Judge framed issues as to whether the amount of ₹ 1,000-14-0 was due from him and whether he had not complied ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the temple was agitated but both the Courts had held that in the circumstances he ought not to be so removed. This finding was arrived at by the two Courts upon the evidence and such material as had been placed before them in the suit. The subsequent acts of misconduct, misappropriation and non-compliance with the orders of the Court which were alleged in the application dated October 19, 1957, were not before those two Courts and, therefore, they had held that, in the circumstances then before them, the defendant Bhagwan ought not to be removed from the Sarpanehship. 7. It has been contended that the application dated October 19, 1957, was presented before the trial Court in its ordinary original jurisdiction and all that the trial Court acting within its ordinary jurisdiction could do was to execute the final decree; and obviously if its jurisdiction were limited to executing the final decree, then it could not proceed to remove the Sarpanch when the judgments of the two Courts resulting in the final decree had held that bra ought not to be so removed. 8. On the part of the plaintiffs-respondents, the action taken by the trial Court in removing the appellant has been sought ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... f which the mosque, temple or religious establishment is situate, relating to which or to the endowment whereof, any suit shall be instituted or application made under. the provisions of this Act. Therefore, the contention on behalf of the respondents may perhaps be justified if the District Judge had been taking the action as was taken in the present case, because by virtue of Section 17(1) (c) of the C.P. and Berar Courts Act he would be the principal Civil Court of original jurisdiction in the Civil district . But in so far as the Additional District Judge is concerned, he would be any other Court within the meaning of Section 2 of the Religious Endowments Act and, therefore, he would have to be empowered by the State Government as required by Section 2. No such power conferred upon the First Additional District Judge, Yeotmal, has been pointed out to me. Moreover, it seems to me that the application dated October 19, 1957, did not purport to be under Section 14 of the Religious Endowments Act or any other special enactment but was an application in the ordinary jurisdiction of the Additional District Judge made in the execution proceedings before him. Therefore, the provi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... risdiction of the trial Court to remove the appellant Bhagwan. The order of removal becomes all the more glaring in its inconsistency when I consider that both the trial Court in its judgment in the civil suit and the High Court in First Appeal No. 150 of 1950 expressly held that he ought not to be removed. I should not be understood to say that he cannot be removed if proper proceedings are taken against him. Indeed, I have already indicated that there is not the least doubt upon the evidence in this case that he has been guilty of the grossest mismanagement and misconduct as a trustee, that he has not paid the trust monies ordered to be repaid by him to the trust, that he has maintained false accounts, and that he has mismanaged and misappropriated the trust property and excluded his co-trustees from the management of the trust. It is regrettable, however, that an order which I consider was a proper order cannot however be upheld because of the legal want of jurisdiction in the trial Court to take such an action against the. appellant. Mr. Manohar on behalf of the respondents has urged that this Court may now take such an action, because as to the jurisdiction of the High Court t ..... X X X X Extracts X X X X X X X X Extracts X X X X
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