( 1 ) THIS is a revision application by the Nadiad Municipality the defendant in the Special Civil Suit No. 208 of 1975 filed by the respondents original plaintiffs against the municipality in the court of the Civil Judge (S. D.) Nadiad. The suit is filed for recovery of possession of the suit land on the ground that the petitioner municipality has trespassed upon the land of the plaintiffs who are trustees of one registered public trust. The Municipality appeared in the suit and inter alia contended that the petitioner municipality had been put into possession of the suit land by the then Manager of the Public Trust for the purpose of making a public garden on the suit land and acting on that permissive possession the Municipality had put up a public garden for the use of the public after incurring heavy expenditure. The Municipality therefore contended that the suit for possession which was filed without the permission of the Charity Commissioner as required under sec. 50 of the Bombay Public Trust Act was still born and on that ground was liable to be dismissed. That particular preliminary contention taken up by the Municipality was negatived by the learned trial Judge and this has occasioned the present revision application.

( 2 ) THE question that has been raised by the petitioner municipality and canvassed vigorously by Mr. M. C. Shah for that public authority is of considerable importance and therefore requires to b:- closely examined and neatly decided.

( 3 ) SEC. 50 of the Bombay Public Trusts Act as applicable to the State of Gujarat reads as follows:-"50 In any case (i) Where it is alleged that there is a breach of a public trust; (II) Where a direction is required to recover possession of a property belonging to a public trust or the proceeds thereof or for an account of such property or proceeds from any person including a person holding adversely to the public trust or (III) where the direction of the court is deemed necessary for the administration of any public trust. The Charity Commissioner after making such enquiry as he thinks necessary or two or more persons having an interest in the trust and having obtained the consent in writing of the Charity Commissioner as provided in sec. 51 may institute a suit whether contentions or not in the court within the local limits of whose jurisdiction the whole or part of the subject matter of the trust is situate to obtain a decree for any of the following reliefs :- (A) an order for the recovery of the possession of such property or proceeds thereof; (B) the removal of any trustee or manager. (C) the appointment of a new trustee or manager; (D) vesting any property in a trustee (D) a direction for taking accounts and making certain inquiries. (E) a declaration as to what proportion of the trust property or of the interest therein shall be allocated to any particular object of the trust. (F) a direction authorising the whole or any part of the trust property to be let sold mortgaged or exchanged. (G) the settlement of a scheme or variations or alterations in a scheme already settled or (H) granting such further or other relief as the nature of the case may requireprovided that no suit claiming any of the reliefs specified in this section shall be instituted in respect of any public trust except in conformity with the provisions thereof. PROVIDED further that the Charity Commissioner may instead of instituting a suit make an application to the court for a variation or alteration in a scheme already settled, ormr. Shah submits that sec. 50 by necessary implication takes away the normal right of trustees who are legal owners to institute suits for the recovery of the possession of such property belonging to a public trustfrom any person including a person holding adversely to the public trust. Mr. Shahs submission is that this is a case where there is an allegation of course of the defendant that there was assuredly a breach of the public trust by the then t