A trust is not entitled to exemption under section 88B of the Bombay Tenancy and Agricultural Lands Act, 1948, in respect of lands which had already become the property of the tenants before the right of exemption was acquired by the trust.

DHARMADHIKARI J.- The appellant, Public Trust filed a suit for possession of certain agricultural lands situated at Uchagaon in taluka Karvir of Kolhapur District against the defendants on the ground of trespass by the defendants in the suit lands or in the alternative on the ground that they are tenants whose tenancy was duly terminated.

2. The suit lands i. e. Survey Nos. 140 and 141 initially belonged to Chatrapati of Kolhapur who created a trust called "Shri Chhatrapati Charitable Devasthan Trust" and the suit lands were donated to the said trust. The said trust was created in 18th of January 1956 and thereafter it was registered under the Bombay Public Trusts Act, 1950. The trust obtained a certificate under section 88B (2) of the Bombay Tenancy and Agricultural Lands Act, 1948. It is not necessary to make a reference to the other averments made in plaint because ultimately it appears from the judgment of the trial Court that the case of trespass was given up by the plaintiff and the suit proceeded on the basis that the predecessor of defendant No.4 Anant Mudhale was the only tenant of the suit lands and his tenancy was duly terminated. It appears from the record that his tenancy was terminated by a notice dated 23rd September 1967 with effect from the end of March 1968.

3. Defendant No.4, who was the real contesting defendant filed his written statement and contested the suit. He denied the fact that the Trust had obtained any certificate under section 88B (2) of the Tenancy Act and according to him even if such a certificate was obtained by the trust, it was not binding on him as he was not a party to the said proceedings. Original defendant No.4 died during the pendency of the suit and his heirs were brought on record. They have filed their written statement vide Exhibit 45. It was contended on behalf of the heirs of defendant No.4 that on 1st April 1957 they and their predecessor Anant became owners of the suit lands in view of the provisions of section 32 of the Tenancy Act. They further contended that thereafter the suit lands did not belong to the Trust at all and hence the notice of termination of tenancy is of no consequence or effect. On these grounds, according to the defendants the suit itself was not maintainable.

4. In view of these pleas raised by the parties the learned Judge of the trial Court framed necessary issues. It appears that before the trial Court it was an admitted position that the Trust was registered under the Bombay Public Trusts Act, 1950 on 31st of May 1959. The learned Judge further found that in view of the provisions of the Bombay Tenancy Act on 1st April 1957 i. e. the tillers' day the tenants became owners .of the suit lands under section 32 of the Tenancy Act. Therefore, relying upon the Division Bench decision of this Court in Shri Laxminarayan Temple Kothure v. Laxman Mahadu Chandore1 the learned Judge held that the suit is not maintainable because defendant No.4 had already become owner of the suit lands on 1st April 1957 itself. As a result of this finding the learned Judge of the trial Court dismissed the suit filed by the plaintiff. It is this judgment and decree which are challenged in the present first appeal.

5. Mr. Rege, learned counsel appearing for the appellant plaintiff contended before us that the learned Judge of the trial Court has committed an error in holding that the present suit is covered by the earlier Division Bench decision of this Court in Shri L. N. Temple v. Laxman. According to Mr. Rege in the present case the Trust was created on 18th of January 1956. The suit property was donated in the name of trust on 13th July 1956. On 24th September 1956 the Trust was duly settled. On 18th January 1956 itself an application for registration of the Trust under the Bombay Public Trusts Act, 1950 was filed before the competent authority. Ultimate order in that behalf was passed by the authorities concerned on 31st of May 1959 and thereafter sometime in July 19