Dattatraya Tanaji K(Sic)Irnar vs Shri Saraswati Mandir Public ...
2004 Latest Caselaw 726 Bom

JUDGMENT

A.S. Oka, J.

1. I have heard Shri Warunjikar for the Appellants appearing in some of the Appeals and Shri Palwe for Appellants in other Second Appeals. I have heard Shri Kankaria appearing for the Respondents.

2. The controversy involved in all these Second Appeals is more or less identical and therefore for the sake of convenience reference is made to the facts of Second Appeal No. 245 of 2004.

3. The Appellant is the original Defendant No. 1. The Respondents are the original Plaintiffs. The original Defendant No. 2 died during the pendency of the Appeal and it is an admitted position that his legal representatives were not brought on record. The Respondent No. 1 is a public Trust duly registered under Bombay Public Trust Act, 1950 (hereinafter referred to as the said Act of 1950) and the Respondent Nos. 2 to 8 are claiming to be the Trustees of the said Trust. The suit is filed by the Respondents alleging that the Appellant is in unlawful possession of the suit shop. The defence of the Appellant was that the original Defendant No. 2 Madan Gopal Kalantri created tenancy in his favour in respect of the said shop in the year 1950. The contention of the Appellant is that the property was held by a private Trust of which said Madan Gopal Kalantri was a Trustee and therefore, he had an authority to create tenancy in respect of the suit shop in favour of the Appellant. The Trial Court initially dismissed the suit on the ground that the permission of the Charity Commissioner was not obtained and the dismissal of the suit was challenged in the District Court by way of Appeal. The finding of the Trial Court on the issue of maintainability was reversed in Appeal and the suit was remanded to the Trial Court for decision on merits. The Trial Court passed Decree in favour of the Respondents. An Appeal preferred by the Appellant has been dismissed. Therefore, this Second Appeal is preferred by the original Defendant No. 1.

4. The learned Counsel Shri Warunjikar appearing for the Appellants in some of the Appeals submitted that substantial questions of law as formulated in grounds No. D, E, I and J arise in these Second Appeals. The said grounds are as under:

(D) Whether the payment of the rent by the Appellant to the Defendant No. 2 who was accepting the same on behalf of the original Plaintiff i.e. the Trust amount to payment of the rent to a person who is an agent of the landlord and whether the Appellant is entitled for getting all the protection of the provisions of the Bombay Rent Act?

(E) Whether Defendant No. 2 can be called as a landlord as defined under Section 5(3) of the Bombay Rent Act more particularly in the light of the evidence below Exhibits 27 and 38 which shows that Defendant No. 2 was acting as a Manager of the said Trust and he was managing the said Trust in the life-time of Shri Purohit who was the owner of the said temple prior to incorporation of the Trust?

(I) In the light of the averment in the plaint that the Appellant is a trespass statement of the Appellant that the Appellant was paying the rent to the Defendant No. 2 and more particularly, after demise of Defendant No. 2 not impleading the legal heirs and representatives of Defendant No. 2 as a party to the said proceeding, can it be called as a lapse, latch and lacuna on the part of the original Plaintiff which is fatal resulting into dismissal of the said suit?

(J) Whether the tenant i.e. the Appellant who is paying the rent to the landlord who is having a defective title is entitled to the protection on under Section 50 of the Transfer of Property Act?

5. Shri Warunjikar has made elaborate submissions on the aforesaid grounds. He submitted that the Appellant has produced rent receipts issued by the original Defendant No. 2 Madan Gopal Kalantri which relates to the year 1958. He relied upon the order passed by Deputy Charity Commissioner in Enquiry under Section 19/20 of the said Act of 1950 and pointed out that original Defendant No. 2 and his father were very much concerned with the suit property. As Defendant No. 2 was in the Management of the suit property, he had authority to grant tenancy. He submitted that even after registration of the Trust in the year 1970, no action was taken by the Respondents against the Appellants and ultimately a suit was filed in the year 1988 after lapse of 18 years. He submitted that once it was established that original Defendant No. 2 was in the management of the property, tenancy created by the original Defendant No. 2 is naturally binding on the Respondents. He relied upon Section 50 of the Transfer of Property Act, 1882.

6. Shri Palwe learned Counsel appearing for some of the Appellants in the Second Appeal contended that even from the averments made in the plaint it is very clear that alleged unlawful possession of the Appellant continued for a period of more than 12 years before the institution of the suit. He submitted that from the averments made in the plaint itself it is very clear that the Appellants have perfected their title to the suit shop by adverse possession. He submitted that it is seen from the averments in the plaint that the suit was barred by limitation and therefore it was not necessary to specifically plead in the written statement that the Appellants have perfected their title by adverse possession.

7. I have considered the submissions made by the learned Counsel for the Appellants. It is to be noted that in the Enquiry under Section 19 of the Bombay Trust Act, 1950, it is held that the property comprising of the suit shops was vesting in Respondent No. 1-Trust. Shri Warunjikar has rightly submitted that the finding recorded in the Enquiry under Section 19 of the said Act of 1950 is not binding on the Appellant and the Civil Court has jurisdiction to decide the issue of ownership of the property independently of the findings recorded in the said Enquiry.

8. It is pertinent to note that the Appellants could not lead any evidence to show that the property in which the suit shops are situated is not the property vested in Respondent No. 1-Trust but was the property vesting in the original Defendant No. 2 or his father. In absence of any evidence led in that behalf it cannot be held that the original Defendant No. 2 was the owner of the property and the Respondent No. 1-Trust is not the owner.

9. The evidence on record shows that the rent receipts produced by the Appellant are of the year 1958. The Enquiry under Section 19 of the said Act was commenced in the year 1952 in which there is a finding recorded that a public Trust was in existence and the property vests in the public Trust. No material is placed on record to discard the said finding. Apart from rent receipts there is no other evidence as regards tenancy created in favour of the Appellants. There is no evidence on record to show that purported tenancy was created any time prior to the date on which Enquiry was initiated. Therefore, taking the case of the Appellant at the highest it is very clear that purported tenancy was not created any time prior to initiation of Enquiry under Section 19 of the said Act of 1950. The finding recorded regarding existence of a Public Trust will definitely relate back at least to the date of initiation of proceedings under Section 19 of the said Act of 1950.

10. Once there is finding that the Public Trust existed and property is of public Trust, obviously the Defendant No. 2 or his father had no authority to create tenancy in favour of the Appellant. Therefore, in my opinion, it is rightly held that the Appellants have failed to prove that they have been inducted as lawful tenants in the suit shops by original Defendant No. 2.

11. In so far as reliance placed on Section 50 the said Act of 1882 is concerned, on plain reading of the Section it is very clear that said provision will not confer any right of tenancy on the Appellants. If the Appellants have in good faith paid rent to the person allegedly claiming as landlord, the real landlord will not be entitled to claim the said amount of rent which is already paid. Therefore, Section 50 of the said Act of 1882 did not establish the case of the Appellants.

12. In so far as plea of adverse possession is concerned, it is an admitted position that no such plea has been specifically raised in the written statement. It was for the Appellants to establish that they are in adverse possession of the suit shop from a particular date. In so far as plea of adverse possession is concerned it is always a matter of specific pleadings and proof. It was for the Appellant to establish that they were in hostile possession of the suit shops to the knowledge of the Respondents and that the suit is filed after lapse of 12 years from the date on which the possession of the Appellants has become adverse. It was, therefore, necessary for the Appellants to plead the said fact, specifically and to prove the same. Merely because an averment has been made in the plaint that the possession of the Appellants was unlawful the same will not ipso facto lead to the conclusion that the Appellants have perfected their title to the suit property by adverse possession.

13. Merely because the original Defendant No. 2 was claiming to be owner of the property or was claiming that he was a trustee of alleged private Trust in which the property was allegedly vesting the Defendant No. 2 will not have any right in respect of the property which is held to be the property vesting in the Respondent No. 1-public Trust.

14. In view of the finding of fact recorded by the Courts below no substantial question of law arises. Second Appeals are dismissed with no order as to costs.

15. At this stage Shri Warunjikar and Shri Palwe pray for time to vacate the suit shops. They submitted that the Appellants are in possession of their respective shops at least from the year 1958 and therefore they need longer time of two years to vacate.

16. Shri Kankaria submitted that the Appellants are not using the suit shops and all of them are having independent shops and therefore time of two years may not be granted.

17. Considering the submissions made by the Counsel appearing for the parties and considering the nature of the controversy, interest of justice will be met if time till 31st December 2005 is granted to vacate the suit shops.

18. Therefore, I direct that notwithstanding the dismissal of the Second Appeals, the decree for possession shall be executed till 31st December 2005 subject to the following conditions:

i) The Appellant in each Second Appeal will deposit the amount of damages as per the Decree passed by the Trial Court within a period of three months from today in the Trial Court.

ii) The Appellant in each Second Appeal will keep on depositing in the Trial Court the amount of damages as per the Decree regularly and punctually on or before 10th of every calendar month.

iii) The Appellant in each Second Appeal will file undertaking in writing in this Court in usual form to vacate the suit shops within a period of two weeks from today.

iv) If the amount of arrears of damages is not deposited within the stipulated time, the Decree for possession will forthwith become executable. If the undertaking is not filed within a period of two weeks from today, Decree for possession will become executable forthwith.

v) the amount deposited by the Appellants by way of damages shall be permitted to be withdrawn by the Respondents.

vi) Certified copy expedited.

vii) Parties to act upon an ordinary copy of the order duly authenticated by the Court Sheristedar.