Interim Application No.4436 of 2025 in Suit No.13 of 2025 (High Court of Judicature at Bombay, Ordinary Original Civil Jurisdiction; Sandeep V. Marne, J.; 3 October 2025) — Defendant No.1's application under Order VII, Rule 11(d) CPC for rejection of the Plaint filed by Shri Hari Ashram, a public charitable trust registered under the Bombay Public Trusts Act, 1950 as applicable to Gujarat, through its trustees, for recovery of possession of the second and third floors of building 'Usha Villa' with 50% undivided share in the Juhu plot (acquired under registered Deed of Assignment dated 30 July 2012) from the Defendants, sons of co-owner Jayantilal, who allegedly took over possession in November 2021. HELD: (i) Trustees, as natural legal owners of trust property, do not require the written consent of the Charity Commissioner under Sections 50/51 of the BPT Act (or the MPT Act) to institute a suit for recovery of possession of trust property from a trespasser or a person holding adversely; Section 50 of the BPT Act is an enabling provision conferring a right to sue on the Charity Commissioner and on 'two or more persons having an interest in the Trust' (with written consent under Section 51) in addition to trustees, and cannot be read as a restriction on the trustees' common law right; the difference between Section 50, MPT Act (which excludes persons holding adversely, trespassers, licensees and tenants) and Section 50, BPT Act (which includes persons holding adversely) does not alter the trustees' position, since the question turns on who sues, not on who is sued; the Single Judge decision in the Trust's own case (Shri Hari Ashram v. Khushalbhai Bhawan Kawa, IA (L) No.38071 of 2022) followed; the Division Bench in Amirchand Tulsiram Gupta and the Gujarat High Court in Nadiad Nagarpalika relied on; Church of North India and Virupakshayya Shankarayya (Supreme Court) distinguished as rendered in different contexts; Patel Nanji Devji (Guj) in fact supports the conclusion. (ii) Section 80 of the BPT Act (bar of Civil Court jurisdiction) does not apply — the Charity Commissioner has no power under the BPT Act to decide recovery of possession from a trespasser; Section 50 merely enables him to institute a suit, and unlike Section 41E of the MPT Act (temporary injunction power only), the BPT Act contains no corresponding provision. (iii) Non-joinder of the co-operative housing Society is not a ground for rejection of the Plaint under Order VII, Rule 11 CPC; the Society is not a necessary party to a member's suit for possession against an alleged trespassing co-owner. (iv) The limitation ground was not pressed and is left open. Interim Application rejected.
