Kashiram S/O Fakiraji Potbhare ... vs Jaiwant S/O Wasudeo Pullarwar And ...
2004 Latest Caselaw 375 Bom

JUDGMENT

S.T. Kharche, J.

1. By invoking the jurisdiction of this Court under Section 100 of the Code of Civil Procedure, this second appeal is filed by the original plaintiff challenging the judgment dated 21-1-1989 passed by the Additional District Judge (Mr. J. H. Bhatia) in Regular Civil Appeal No. 564 of 1983 whereby the appeal came to be allowed and the suit of the plaintiff is dismissed and the judgment and decree passed by the Trial Court on 19-11-1983 is set aside by which the respondents defendants were directed to deliver the possession of the suit premises with future inquiry into the mesne profit under Order 20, Rule 12(l)(c) of the Code of Civil Procedure.

2. Brief facts are required to be stated as under :

Shri Hanuman Deosthan, Navi Shukrawari, Nagpur is a registered Public Trust being registration No. A/50(N) and through its trustees had filed suit for eviction of the defendants on the contentions that the house No. 873 situated in Circle No. 3 of Nagpur Municipal Corporation is a property owned by Haridas Baba Vaishnav who died about 70 years ago. One Bansilal Gangadin Pardeshi Teli was a disciple of Haridas Baba and after the death of the former, Bansilal was the Wahiwatdar of the said Math and he was supervising all the religious activities of the said Math. After the death of Bansilal, his wife Yashodabai used to look after the management of the Math and carried on the religious duties faithfully. She is said to have executed one document on 3-5-1946 (Exh.41) by which the panch committee was appointed and they were acting as trustees of the said Math including herself. She also died subsequently and out of the total five trustees, except one Ramjivan Kaluaram all are not alive. After the death of Badal Girdharilal, who was Sarpanch of this Committee, one Chhotelal Pardeshi assumed the office of the Sarpanch and in that capacity he made an application to the Deputy Charity Commissioner for registration of the Math as a public trust under the provisions of M.P. Public Trust Act, 1951. It is contended that the said trust was registered and whatever the property was owned by the trust was entered into the register of public trust vide Rule 3. The Municipal House No. 152 was stated to be the property of the trust in that register. Then, after the death of Chhotelal, some persons of the locality made an application to the Deputy Charity Commissioner for framing a scheme for the management of the trust. Accordingly, the plaintiff Nos. 2 to 6 were appointed as trustees by the order passed by the Deputy Charity Commissioner on 4-4-1975. The defendants were occupying the suit house as tenant. A notice dated 4-11-1977 was served on the defendants No. 2 Vijay who was called upon to pay the arrears of rent for three years till October, 1977 @ Rs. 110/- per month. Another notice dated 12-12-1977 was served on the defendants and they were called upon to vacate the suit premises and to pay arrears of rent. The defendants did not make any amends and therefore the plaintiff was constrained to file the suit for possession based on the title and also for the arrears of occupation charges.

3. The defendants combated the contentions of the plaintiff and denied the title. The defendants admitted that the suit house was known as Haridas Baba Math and they were occupying this property since about last 30 years. They contended that they used to perform Pooja and Utsav and they are occupying the suit house for more than 30 years openly, peacefully without any interruption and therefore they have acquired the title by adverse possession.

4. The Trial Court on aforesaid pleadings framed several issues. Parties adduced evidence of the witnesses and also relied on documentary evidence placed on record. The Trial Court, on consideration of the evidence and on hearing the parties, reached the conclusion that the plaintiff proved the title over the suit property and negatived the contentions of the defendants that they are occupying the suit house as a tenant. The Trial Court recorded the finding that the Deputy Charity Commissioner declared that the suit house is the property owned by the plaintiff-trust and therefore, though the defendants are occupying the suit house for more than 30 years, they have not perfected title by adverse possession. Consistent with these findings, the Trial Court decreed the suit and directed the defendants to deliver the possession of the suit house with future inquiry into the mesne profit under Order 20, Rule 12(1)(c) of the Code of Civil Procedure. The defendants being dissatisfied with the judgment and decree passed by the Trial Court, earned appeal to the District Court. The learned Additional District Judge by the judgment dated 21-1-1989 allowed the appeal, set aside the judgment and decree passed by the Trial Court and dismissed the suit with cost. This judgment of the appellate Court is under challenge in this second appeal.

5. Mr. Pardhy, the learned counsel for the plaintiff contended that the plaintiff is a registered public trust and owns the properties i.e. House No. 374 in Circle No. 2 and house No. 55 in Circle No. 3 and also old Math? Corporation House No. 369 as shown in the register maintained by the Charity Commissioner. He contended that the suit house, which is in occupation of the defendants was initially given municipal house No. 152 situated in Circle No. 3 and thereafter the house number was changed from time to time and finally the suit house is bearing No. 873. He contended that there cannot be a dispute about the identity of the suit house if the boundaries are taken in consideration, He contended that one Yashodabai who was in the management of the trust after the death of Bansilal Pardeshi, had executed one document (Exh.4l) and created a trust in the year 1946. He contended that the various documents produced on record clearly speaks of the title of the plaintiff and the appellate Court did not consider the documents produced on record and reached the wrong conclusion that the plain tiff-trust has failed to establish the title and therefore the impugned order cannot be sustained in law. He contended that the appellate Court has committed an error in holding that the document (Exh.41) is not admissible in evidence though it was in the nature of secondary evidence and especially when the Trial Court had exhibited the said document. He contended that the plaintiffs have filed the suit for possession on the basis of the title in respect of the property originally owned by Haridas Baba as is reflected in the aforesaid document and therefore, it was not open for the appellate Court to say that the suit house was never treated as trust's property since the year 1953 till litigation started. He contended that the defendants admitted in the written statement that the suit house is owned by the plaintiff-trust. He contended that the defendants did not adduce any evidence to show that they have perfected their title to the suit house by virtue of adverse possession and in the circumstances, the appeal may kindly be allowed.

6. Mr. Vyawaharc, the learned counsel for the defendants contended that the plaintiff-trust has failed to establish the identity of the property. The defendants are in possession of the suit house since about 30 years and have perfected their title to it by virtue of adverse possession. He contended that the delendants even had obtained the permission from the Municipal Corporation to construct the compound wall of the suit house and this property has nothing to do with the house which is said to be the property of trust. He contended that Yeshodabai had no title to the suit house and therefore she could not have created the trust by virtue of the document (Ex.h.41) dated 3-5-1946 on the contentions that Banshilal was Wahiwatdar and asked his wife Yeshodabai to create the trust. He contended that the document produced on record was in the nature of the secondary evidence and it is rightly held by the appellate Court that it is not admissible in evidence. He contended that the said document was a certified copy and without proving the original document, it is not admissible in evidence and in support of these submissions he relied on the decisions of the Supreme Court in the case of K. V. Subbaroju v. Stthhatajtt, and Kashibai v. Parwatihc, 1996(1) Mh.L.J. 1.

7. He contended that Chhotelal got the trust registered in respect of the house bearing Municipal Corporation house No. 55 situated in Circle No. 3 which is entirely a different property. He contended that the extract of the assessment register of the municipal corporation for the years 1947 to 1950, 1955-56 to 1960-61, 1961-62 to 1973-74 and 1978-79 would show that there was a temple of Lord Ganesh, which was a private trust. He contended that the boundaries of the suit house have not been disclosed in the plaint and no evidence has been adduced to show that the house in occupation of the defendants was formerly owned by heirs of Haridasbaba. He contended that the plaintiff-trust by name Hanuman Deosthan was created in the year 1971 and the scheme was framed in the year 1971. The order dated 4-4-1975 passed by the Deputy Charity Commissioner would show that the property bearing House Nos. 363, 230 and 55 situated in circle No. 2 was the property of the trust. He contended that since the plaintiff did not establish the identity of the property owned by the trust, the appellate Court rightly concluded that the house property in occupation of the defendants is entirely different. He contended that in such circumstances, no case has been made out by the plaintiff for interference into the impugned judgment passed by the appellate Court and no substantial question of law arises for determination in this appeal and therefore the appeal may kindly be dismissed with costs.

8. This Court has given thoughtful consideration to the contentions canvassed by the learned counsel for the parties. It is not in dispute that the plaintiff is a registered public trust by the name; "Shree Hanuman Deosthan, Navi Shukrawari, Nagpur". On an application dated 31-8-1953, for registration of the trust, the learned Deputy Charity Commissioner registered the trust after framing a scheme by the order dated 4-4-1975 and the certified copy of the register (Exh.47) in relation to trust's property maintained by the Charity Commissioner would indicate that municipal corporation house No. 374 situated in ward No. 2, house No. 55 situated in circle No. 3 and old Math, corporation house No. 369 are owned by the plaintiff-trust and that the municipal taxes were paid by the trust for this property, from time to time.

9. The defendants combated the claim put-forth by the plaintiff for the possession by filing written statement wherein it has been specifically admitted that the suit house was bearing No. 143 and then it was changed to 492 and again it was changed to house No. 104 situated in circle No .3, Nagpur and the owner of the house was Haridas Bairagi, the saint. The trial Court considered the evidence and reached the conclusion that the house was initially owned by Haridas Baba and after his death it was used for installing his padukas and Utsavas were celebrated by the members of public. Moreover, in Exh.75, the defendants has given the house number as 152 in old Ward No. 9, new Ward No. 19 in circle No. 3 and the evidence clearly indicate that the house numbers were changed from time to time and considering the evidence, the Trial Court reached the conclusion that the house was continuously used for performing the Puja of the Padukas and Utsavas after the death of Haridas Baba and was managed by Bansilal and subsequently by the plaintiffs. The trial Court also recorded the findings that the house was not owned by Yeshodabai and she was only looking after the management of the suit house and it is also admitted fact that the late Haridas Baba was a great saint of his time and his Padukas were installed and some Utsavas and Pujas were performed of his Padukas. After the death of Haridas Baba, Bansilal and Yeshodabai as well as Chhotelal were only looking after the management of suit property and they did not get any title to the house. Yeshodabai had created panch committee to look after the property only for the proper management of the property and that Yeshodabai did not transfer any interest in the property. The trial Court also recorded the finding that Yeshodabai was the ostensible owner at the relevant time in the year 1946 in possession and management and control of the property and therefore, she had every authority as directed by her husband to appoint a Panch Committee and besides this, the Deputy Charity Commissioner framed the scheme on the application of Chhotelal and created public trust of the properties vested in it.

10. This Court may usefully rely on the decision of the Supreme Court in the case of Narayan Bhagwantrao Gosavi v. Gopal Vinayak Gosavi, wherein it has been held that; "An admission is the best evidence that an opposing party can rely upon, and though not conclusive, is decisive, of the matter, unless successfully withdrawn or proved erroneous".

11. In another decision in the case of Union of India v. Moksh Builders and Financers, it was held that; "An admission by a party is substantive evidence of the fact admitted, and admissions duly proved are admissible evidence irrespective of whether the party making them appeared in the witness box or not and whether that party when appearing as witness was confronted with those statements in case it made a statement contrary to those admissions".

12. In the present case the unequivocal admissions of the defendants in the written statement would clearly show that there cannot be any dispute about the identity of the property because the defendants clearly admitted that the suit house was bearing No. 143 and then it was changed as house No. 492 and again it was changed to 104 situated in circle No. 3, Municipal Corporation, Nagpur and the owner of the suit house was Haridas Bairagi, a saint. In view of these circumstances, it was a futile attempt on the part of the defendants to dispute the identity of the property, and therefore, it is obvious that the finding of the appellate Court is perverse and the reasoning is fallacious in reaching the conclusion that the suit house is entirely different than the house which is in occupation of the defendants. The appellate Court conveniently ignored the admitted facts and instead has made a capital of the situation that the original document Exh.41 could not be produced on record and without there being any necessity to consider the admissibility of the said document has committed an error of law and facts and therefore the conclusion drawn is based on surmises and cannot be upheld in law.

13. That takes this Court to consider as to whether the defendants have adduced any evidence to show that they have perfected their title by virtue of adverse possession. The appellate Court did not advert to this point at all. The trial Court on consideration of the evidence rightly recorded the findings that the defendants did not become owner of the suit house even though they may be in possession for more than 30 years peaceably, openly and continuously without any interruption.

14. Adverse possession means possession of the land or interest in the land by a wrong man against the will of the right man. Adverse possession, as its words imply, must be actual possession of another's land with intention to hold it and claim it as of his own, to the exclusion of the rightful owner. It must commence with the wrongful possession of the rightful owner at some particular time and must commence, in wrong against right. It must be actual, open, notorious and hostile under claim of right, continuous and exclusive and maintained for the statutory period. Possession and adverse possession do not mean the same thing. Mere user of the property cannot be taken as a definite assertion of the proprietary rights, there must be definite quality in the possession before it can be called adverse and some act of unequivocal character to put the owner on guard. There cannot be adverse possession if the claimant himself do not know that he was occupying somebody's land. However, permissive possession cannot be converted into adverse possession unless it is proved that the person in possession asserted as adverse title to the property, to the knowledge of the true owners for a period of 12 years or more.

15. However, permissive possession cannot be converted into adverse possession unless it is proved that the person in possession asserted an adverse title to the property, to the knowledge of the true owners for a period of 12 years or more. I am fortified in my view by the decision of the Supreme Court in State Bank of Travancore v. Arvindan Kunju Panicker, AIR 1971 SC 96 wherein it is observed that, "a permissive possession cannot, be converted into an adverse possession unless it is proved that the person in possession asserted an adverse title to the properly to the knowledge of the true owners for a period of 12 years or more". The concept of adverse possession contemplates a hostile possession which is expressly or impliedly in denial of the title of the true owner. Possession to be adverse must be possessed by a person who does not acknowledge the other's rights but deny them. Also a person who bases his title, on adverse, possession must show by clear and unequivocal evidence that his possession was hostile to the real owner and amounted to a denial of his title to the property claim. Permissive possession does not become hostile till there is assertion of adverse possession to the knowledge of the owner. Permissive character of the possession cannot be inferred from the attending circumstances even without direct evidence. If possession is found to be permissive at the inception the possessor cannot prescribe or sustain title or any claim to the grantor of the possession.

16. In the present case the defendants in fact did not specifically plead in their written statement that they have perfected their title by adverse possession. In the additional plea the defendant No. 1 contended that defendant No. 1 was a disciple and follower of Haridas. About more than 30 years ago when he found that the house in suit was left uncared for and there was no arrangement of even lighting nor to speak of worship, he started occupying the house performing worship and Aarti of the Padukas of his Baba Haridas, managing the house in proper state of repairs and paying taxes to the Municipal authorities. He carried out work of reconstruction and renovation of the house after obtaining due sanction from the Municipal Corporation. No one ever obstructed and interrupted the defendants No. 1 in this work during the last more than 30 years and he has acquired and completed his right of management over the property in the suit which is private trust property by open, peaceful possession thereof for the last more than 30 years, (underline supplied for emphasis) The plaintiffs alleged trustees cannot oust him from the management by merely framing a scheme for the plaintiff-trust and getting themselves appointed as trustees thereof.

17. The plain reading of the defendants' plea reveals that the defendants did not claim that they have perfected their title to the suit house by virtue of adverse possession and what has been pleaded is that defendant No. 1 acquired and completed his right of management over the property in the suit house which is private trust property by open, peaceful possession thereof for the last more than 30 years. In such circumstances, this Court is of the considered opinion that no case has been made out by the defendants that he has acquired the right of management by virtue of adverse possession and therefore, it is obvious that the trial Court was perfectly justified in granting decree for possession against the defendants. The entire approach of the appellate Court was erroneous, hasty and misconceived and not warranted and cannot be sustained in law and therefore, for the reasons mentioned above, the appeal is allowed with costs throughout. The impugned order passed by the appellate Court is set aside, and that of the trial Court is restored. The defendants shall vacate the suit premises within a period of six months from the date of this order.