S.B.Civil Revision Petition no. 2/2009

Shri Jin Kushal Guru Pracheen Dadawadi Bhaktjan Samiti, Jodhpur vs.

Chetani Vyason Ki Bagichi Neelkanth Mahadev Trust, Fatehsagar, Jodhpur

Order dt: 26/9/2011

1/25

IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT

JODHPUR

O R D E R

Shri Jin Kushal Guru Prachin vs.

Chetani Vyason ki

Dadawadi Bhaktjan Samiti,

Bagichi Neelkanth

Fatehsagar, Jodhpur

Mahadev Trust, Jodhpur.

S.B.CIVIL REVISION PETITION NO. 2/2009

DATE OF ORDER

:

26^th September, 2011

P R E S E N T

HON'BLE DR.JUSTICE VINEET KOTHARI

Mr. S.C.Maloo, for the petitioner – defendant.

Mr. Jagdish Vyas, for the respondent- plaintiff.

BY THE COURT:

REPORTABLE

1.

The defendant has approached this Court by way of present

revision petition under Section 115 CPC being aggrieved of the order

dated 11/11/2008, whereby, the learned trial court of Civil Judge (Jr.

Div.), Jodhpur City, Jodhpur rejected the defendant's application

under Order 14 Rule 2 CPC read with Section 151 CPC seeking to

raise the jurisdictional question before the trial court in respect of

S.B.Civil Revision Petition no. 2/2009

Shri Jin Kushal Guru Pracheen Dadawadi Bhaktjan Samiti, Jodhpur vs.

Chetani Vyason Ki Bagichi Neelkanth Mahadev Trust, Fatehsagar, Jodhpur

Order dt: 26/9/2011

2/25

eviction suit no. 80/2000 - Chetani Vyason Ki Bagichi Neelkanth

Mahadev Trust, Fatehsagar, Jodhpur vs. Shri Jin Kushal Guru

Pracheen Dadawadi Bhaktjan Samiti, Jodhpur, filed by the plaintiff

respondent by framing additional issue for deciding the jurisdictional

issue before hand since according to the defendant, the suit itself was

not maintainable as barred by Section 29 and 73 of the Rajasthan

Public Trusts Act, 1959 (for short `the Act of 1959').

2.

The learned trial court had rejected the said application with

cost of Rs. 200/- by the impugned order on the ground that issue nos.

7-A, 7-B and 7-C are mixed questions of fact and law and, therefore,

deserve to the decided only after evidence is led by the parties and

hence application under Order 14 Rule 2 CPC was liable to be

rejected.

3.

Mr. S.C.Maloo, learned counsel for the petitioner defendant

submitted that the dispute is between the two public trusts namely;

plaintiff-Chetani Vyason Ki Bagichi Neelkanth Mahadev Trust,

Fatehsagar, Jodhpur and defendant – Shri Jin Kushal Guru Pracheen

S.B.Civil Revision Petition no. 2/2009

Shri Jin Kushal Guru Pracheen Dadawadi Bhaktjan Samiti, Jodhpur vs.

Chetani Vyason Ki Bagichi Neelkanth Mahadev Trust, Fatehsagar, Jodhpur

Order dt: 26/9/2011

3/25

Dadawadi Bhaktjan Samiti, Jodhpur for which vide order dated

18/12/1996 in case no. 11/86 the Assistant Commissioner, Devasthan

Department, Jodhpur after holding due inquiry in terms of Section 18

of the Rajasthan Public Trusts Act, 1959, after contest put up by the

present plaintiff, has clearly held in favour of defendant that the

defendant - Shri Jin Kushal Guru Pracheen Jain Dadawadi existed on

the said land in question ever since last more than 200 years viz.

Samvat Year 1866 equivalent to Christian year 1809 and inter alia

said Trust, which was registered as a Public Trust by the same order

dated 18/2/1996 had a possessory title ever since on land measuring

24190 sq. ft. of land including said `pracheen Jain Dadawadi',

whereas, the plaintiff Chetani Vyason Ki Bagichi Neelkanth

Mahadev Trust, Fatehsagar, Jodhpur only claimed possession of the

land in question on which Neelkanth Mahadev temple was

constructed for about 100 years ago i.e. after the said `Dadawadi'

came into existence in Samvat Year 1866 about 200 years back from

now.

4.

Learned counsel for the petitioner, Mr. S.C.Maloo further

S.B.Civil Revision Petition no. 2/2009

Shri Jin Kushal Guru Pracheen Dadawadi Bhaktjan Samiti, Jodhpur vs.

Chetani Vyason Ki Bagichi Neelkanth Mahadev Trust, Fatehsagar, Jodhpur

Order dt: 26/9/2011

4/25

urged that while registering both the Public Trusts afte