1.0. Rule.
Shri Prabhakar Upadhyay, learned advocate waives service of Rule on behalf of respondent no.1 and Shri Y.H. Vyas, learned advocate waives service of Rule on behalf of respondent no2. With the consent of the learned advocates for the respective parties, the application is taken up for final hearing today.
2.0. Heard Shri Chauhan, learned advocate for the applicant, Shri M.B. Gandhi, learned advocate with Shri Vyas, learned advocate for the respondent no.2 and Shri Prabhakar Upadhyay, learned advocate for respondent no.1.
3.0. Present application has been preferred by the applicant-original appellant to re-frame the substantial question of law which are required to be considered for effective hearing of the main Second Appeal. Shri Gandhi, learned advocate with Shri Vyas, learned advocate for the respondent no.2 and Shri Prabhakar Upadhyay, learned advocate for respondent no.1 have submitted that they have no objection if the substantial question of law as suggested in the present application are framed. However, has submitted that one additional substantial question of law is also required to be framed i.e.
with respect to maintainability of the suit by the plaintiff as held by the learned trial Court confirmed by the learned Appellate Court.
4.0. In view of the above and considering the suggested substantial question of law, it appears that for effective hearing of the main Second Appeal, the following substantial question of law over above substantial question of law which are already framed, to be considered in the main Second Appeal.
Whether the compromised decree obtained by fraud in respect of suit land behind the back of the appellant is null and void and would be binding to the appellant for taking away 50 years possession of the suit land?
Whether any immovable property of the public trust can be alienated without the previous sanction of the learned Charity Commissioner as required under Section 36 of the Bombay Public Trust Act, 11950 ?
Whether 50 years possession of the suit land can be taken away on a fraudulent decree without following due process of law and without joining the applicant in that suit proceedings?
Whether the Courts below have jurisdiction to go beyond the pleadings and evidence on record?
Whether the suit for permanent injunction against 50 years possession, without seeking declaration of right and title of the property in question is maintainable in law?
Whether the Courts below have jurisdiction to overlook and ignore the 'legally adduced' evidence on record?
Whether the lower appellate Court has jurisdiction to ignore and overlook the issues involved in the suit and decide the suit beyond the scope of the suit proceedings?
Whether the trial Court has properly framed the issues involved in the matter?
Whether the learned trial Court was justified in dismissing the suit on the ground that same is not maintainable ?
Rule is made absolute to the aforesaid extent.
sd/-
(M.R.SHAH,J.) kaushik Top