Pandurang Sakharam Patil vs Dt. 15.5.197
2010 Latest Caselaw 21 Bom

                                   1


          IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                     
                        BENCH AT AURANGABAD.




                                             
                CIVIL REVISION APPLICATION No. 238 OF 2002


    Pandurang Sakharam Patil,




                                            
    age 33 years, Occu. Business,
    R/o H.No. 2-11-507, Behind Tarodekar
    Bhaji Market, Vazirabad, Nanded                  ...APPLICANT




                                 
                            VERSUS
    Nanded Parsi Anjuman Trust,
    Nanded Regsn No. P.O.F. 161
                    
    Dt. 15.5.1971,
    Through it's Secretary,
    Kersis S/o Minuji Shroff,
                   
    Age 55 years, Occu. Business,
    R/o Umri, Tq. Umri,
    District Nanded.                                   ..RESPONDENT

                              ...
      

    Mr.P.V. Mandlik, Sr. Counsel for petitioner
    Mr.S.V. Warad, Advocate for respondent
   



                                       CORAM :- S.S. SHINDE, J.

             JUDGEMENT RESERVED ON         : 15th September, 2010
           JUDGMENT PRONOUNCED ON          : 13th October, 2010





    JUDGMENT:

Heard Learned Senior Counsel appearing for

the Revision Applicant and learned Counsel appearing

for the respondent.

2. This Civil Revision Application is filed,

challenging the Judgment and Order dated 3rd December,

2001, passed by the 2nd Additional District Judge,

Nanded, in Misc. Civil Appeal No. 58 of 2001, arising

out of order dated 16th April, 2001 passed by the

learned Jt. Civil Judge, Senior Division, Nanded in

Regular Civil Suit No. 209 of 2001. The revision

applicant is original defendant and respondent herein

is original plaintiff in Regular Civil Suit No. 209 of

2001, for the sake of brevity the applicant herein

will be referred as Defendant and respondent herein

refer as plaintiff.

3. The plaintiffs i.e. present respondent

herein, filed a suit for perpetual perpetual

injunction restraining the defendant from interfering

and obstructing the peaceful possession of the

plaintiff over the second floor of shopping complex on

the property bearing C.T.S. No. 3312 situated at

Vazirabad Nanded. The plaintiff contended that the

said plot is owned by the plaintiff. The plaintiff is

a charitable institution running projects like Blood

Bank, Dispensary etc. To have financial support the

plaintiff sold some portion of land along with

incomplete structure thereon to the defendant on 19th

April, 2000 by way of registered sale deed. At the

time of said sale-deed, the defendant has executed an

agreement in favour of the plaintiff by which, he

agreed that the premises of entire second floor of the

property shall be in possession of the plaintiff, and

plaintiff shall be owner of the same. However,

thereafter, there was dispute between the plaintiff

and defendant on the count of un-realization of the

cheques issued by the defendant for the consideration

amount and further, for encroaching upon some part of

the property owned by the plaintiff.

The Plaintiff further contended that on 19th

March, 2001, the defendant has issued a notice to hand

over possession of second floor to him. Thereafter, on

23rd March, 2001, the defendant along with some

vagabonds came in the premises and tried to dispossess

the plaintiff. The attempt was not successful, as the

watchman of the plaintiff obstructed it. Therefore,

the plaintiff filed suit for injunction, in which

plaintiff has filed application for temporary

injunction.

4. The defendant, by say (Exh. 13), resisted the

application for temporary injunction contending that

the suit premises are not at all in possession of the

plaintiff, but are in possession of the defendant.

The suit itself is not maintainable because of

permission as per Section 50 of the Bombay Public

Trust Act is not obtained. By way of agreement, the

plaintiff had agreed to put the defendant in

possession of an area admeasuring 2100 Sq. feet.

However, the plaintiff has put an area of about 1700

Sq. feet in possession ig of the defendant. Thus,

plaintiff is avoiding to put the defendant in

possession of remaining area. Therefore, defendant

prayed for dismissal of application. The Trial Court

after hearing the parties held that the suit is not

maintainable in the Court of Civil Judge Junior

Division. The plaint was returned to the plaintiff for

presentation of it in proper Court. The said order is

challenged by the original plaintiff before the 2nd

Additional District Judge, Nanded.

5. The 2nd Additional District Judge, Nanded,

heard both the parties and in para No. 7 of its

Judgment framed main point for determinations, that,

" Whether the suit, without permission under Section

50 of the Bombay Public Trust Act is maintainable in

the Court of Civil Judge, Junior Division?" and held

that the suit without permission under Section 50 of

Bombay Public Trust Act is maintainable in the Court

of Civil Judge Junior Division. While allowing the

appeal, the Appellate Court considered the scope of

Section 50 of the Bombay Public Trust Act, in para

No. 8 of its Judgment. The Appellate Court recorded

the finding that so far second floor of the suit

property is concerned, the original defendant is not

in possession of the second floor, as he has admitted

in the agreement that the ownership of the second

floor would vest in the plaintiff. Therefore, the

defendant can be called as "trespasser". The Appellate

Court allowed the appeal, and order passed by the

Trial Court was set aside, and Trial Court was

directed to decide the application (Exh. 5) on merits,

as the suit is maintainable in his Court. This

Judgment and Order passed by the Appellate Court is

under challenged in this Civil Revision Application.

6. The learned Senior Counsel for the revision

applicant, submitted that the suit of the plaintiff

without the permission from Charity Commissioner as

per Section 50 of the Bombay Public Trust Act was not

maintainable. It is further submitted that the

defendant is in possession of the second floor on the

basis of registered sale-deed of the suit land. The

defendant asked the plaintiff to relinquished her

right to second floor, and the Courts mis-read this

contention and given a wrong finding to that effect.

It is further submitted that since the second floor

was being constructed through defendant, the defendant

is in possession ig of the same on the basis of

registered sale-deed of the suit land. It is further

submitted that the Trial Court mis-interpreted the

provisions of Section 2 (4) of the Bombay Public Trust

Act. The learned Senior Counsel invited my attention

to the provisions of Section 50 of the Bombay Public

Trust Act and submitted that the plaintiff is a Trust

and defendant is a beneficiary on the basis of

documents on record including sale-deed and plaintiff

wanted to file a suit for injunction against him.

Therefore, considering the provisions of Section 50 of

the Bombay Provisions Act, 1950, suit of plaintiff was

not maintainable. The learned Counsel further

submitted that the plaintiff has accepted the position

that as per agreement 2100 Sq.feet was sold to the

defendant and only 1600 Sq. feet area was handed over

to the defendant. The learned Senior Counsel further

submitted that by virtue of agreement some area of the

property is in possession of the defendant and second

floor is being constructed through defendant, it

cannot be said that the defendant is a 'trespasser'.

Therefore, finding recorded by the Appellate Court

that the defendant is a 'trespasser' is perverse

finding. The learned Sr. Counsel invited my attention

to Section 50 of theig Bombay Public Trust Act and

submitted that as per clause 'p' of the said Section

the defendant is beneficiary and if plaintiff wanted

to file the suit against the defendant, in that case

permission of Charity Commissioner is must. At the

cost of repetition the learned Counsel submitted that

the defendant by virtue of agreement is in possession

of the property and he cannot be 'trespasser' for the

suit property. It is further submitted that the

defendant is an interested person and is in possession

of the second floor. Since he is constructing the said

floor cannot be termed as 'trespasser' The learned Sr.

Counsel further invited my attention to the grounds

taken in the Civil Revision Application and also

arguments advanced before the Appellate Court and

Trial Court on behalf of the defendant and submitted

that the Judgment and Order passed by the Trial Court

deserves to be confirmed by dismissing or setting

aside the order passed by the Appellate Court. The

learned Sr. Counsel placed reliance on the reported

Judgment of the Hon'ble Supreme court in the case of

"Shree Gollaleshwar Dev and Others V/s. Gangawwa Kom

Shantayya Math and others, reported in AIR S.C. 231",

and submitted that, in view of the said Judgment

trustees are the persons having interests. There is no

justification to exclude the suit brought by two or

more trustees from the preview of Section 50 of the

Bombay Public Trust Act. Therefore, the suit can be

filed by the Trustees only after obtaining the

permission from the Charity Commissioner and it should

be presented before the proper Court as defined in the

Bombay Public Trust Act. Therefore, he prays that

Civil Revision Application deserves to be allowed.

7. On the other hand, learned Counsel appearing

for the respondent placed reliance on the reasonings

given by the Appellate Court and submitted that the

Appellate Court has given finding of facts that the

original defendant is a 'trespasser', and therefore,

said finding cannot be disturbed in revisional

jurisdiction. He further submitted that the Appellate

Court taking into consideration various pronouncements

of this Court and also scope of Section 50 of the

Bombay Public Trust Act, has rightly held that the

trustees are the legal owner of the property and

enjoys all the rights inherent in a natural owner of

property and can sue to recover trust property.

Section 50 cannot apply as a bar to the substantive

right of the trustee to institute suit.

ig The learned

Counsel also invited my attention to the contents of

agreement and submitted that admittedly agreement

provides that the original plaintiff will be owner of

the second floor and defendant will have no right on

second floor. Therefore, so far second floor is

concerned, the original defendant is trespasser and he

tried to threaten the plaintiff to take possession of

the second floor and for that purpose defendant

employed some vagabonds and therefore, plaintiff was

constrained to file suit against the defendant. The

learned Counsel in support of his contention placed

reliance on the following Judgments of this Court

1] Vidarbha Keshatriya Mali Shishan Sansta by

its president Shri Wasudeorao Dattaji Sonar V/s.

Mahatma Fuley Shikshan Samiti Amravati through

its president Ruprao Bhimrao Yewale, reported in

1986, Mh.L.J. 773

2] Gafoor Ali Hussain & others V/s Ram Mahadik

& others, reported in 2000(1) Mh.L.J. 436" in

case of "Shree Bhairvanath Devsthan trust, though

its trustee and priest and Others V/s. Bajba

Nathu Pathare & others, reported in 2000(1)

Bom.C.R. 426"ig

3] Amirchand Tulsiram Gupta & others V/s.

Vasant Dhanaji Patil & others, reported in 1992

Mh.L.J.275"

The learned Counsel submitted that Civil

Revision Application is devoid of any merits and same

deserves to be dismissed.

8. I have given due consideration to the

submissions by the Counsel appearing for the parties,

careful perused the grounds taken in the Civil

Revision Application, annexures thereto, record made

available for the perusal, and also the provisions of

Section 50 of the Bombay Public Trust Act, various

pronouncements of the Apex Court and also by this

Court, and I am of the opinion that the findings

recorded by the Appellate Court are in consonance with

the material brought on record and provisions of

Bombay Public Trust Act, 1950. The Appellate Court has

given correct interpretation to Section 50 of the

Bombay Public Trust Act, and relying on various

Judgments of this Court concluded that the trustees

can file suit before the Civil Court like any other

owner of the property, without seeking permission of

the Charity Commissioner.

9. The terms of agreement will clearly show

that it was agreed between the parties, that the

second floor will remain in possession of the

plaintiff trust and defendant will have no any right

over the second floor. The Appellate Court has

recorded clear finding in para No. 8 of the Judgment

that the defendant can be called as 'trespasser' in

respect of the second floor of the suit property. The

Appellate Court has dealt with the terms of the

agreement in para No. 8, and recorded the finding

that, if the defendant threatens the plaintiff to hand

over possession of the second floor, though it was

agreed between the parties that the second floor will

be in exclusive possession of the plaintiff and

defendant will have no any right on the second floor,

therefore, if the defendant threatens the plaintiff

to hand over possession of the second floor, it will

be threat by third party, therefore, the defendant can

be called as 'trespasser'. Therefore, in my opinion,

once the finding of facts is recorded by the Appellate

Court that the ig defendant can be called as a

'trespasser', so far second floor of the suit property

is concerned, in that case in revisional jurisdiction

it is not possible to upset the said finding recorded

by the Appellate Court, since said finding is not

perverse.

10. The important aspect of the matter is that

whether the trustees of the Trust can file suit

without permission of the Charity Commissioner before

the Civil Judge Junior Division? This controversy is

no more res-integra, and same is answered by various

pronouncements of this Court.

In a case of "Amirchand Tulsiram Gupta &

others V/s. Vasant Dhanaji Patil & others" cited supra

and this Court held thus :

"The trustee is the legal owner of the

property and enjoys all the rights inherent

in a natural owner of property and can sue

to recover trust property. Section 50 cannot

apply as a bar to the substantiative right

of the trustee to institute suit. No

permission under Section 51 is necessary in

such a case. The amendment effected by Act

No. 20 of 1971 as to include 'trustee' while

defining in Section 2(10) the expression

"person having interest" has no effect on

the position of law as above" (emphasis

supplied).

The learned Division Bench while deciding the

afore mentioned case, has placed reliance on the

various pronouncements of the Hon'ble Apex Court as

well as of this Court. In para No. 7, the learned

Division Bench has considered the decision reported in

a case of Shree Gollaleshwar Dev and Others V/s.

Gangawwa Kom Shantayya Math and others, and held that,

the Supreme Court accepted the view taken by the

Division Bench of this Court that the right of a

trustee to bring a suit in the usual way, i.e. in

exercise of rights under the common Law is not

affected by provisions of Section 50 of the Bombay

Public Trust Act.

This Court has followed the Judgment of the

learned Division Bench in case of Amirchand Tulsiram

Gupta & others V/s. Vasant Dhanaji Patil & others"

cited supra in various subsequent pronouncements. The

learned Single Judge of this Court in case of "Gafoor

Alihussain & others V/s. Ram Mahadik & others"cited

supra held that suit filed by trustees of public

charitable trust for eviction of trespasser from its

property and recovery of possession, no permission of

Charity Commissioner necessary. The similar view is

taken by this Court in a case of "Shree Bhairvanath

Devsthan trust, through its trustee and priest and

Others V/s. Bajba Nathu Pathare & others,cited supra.

Therefore, taking into consideration various

pronouncements of this Court, it will have to be held

that the suit filed by the trustees of the respondent

Trust before the Civil Judge, Junior Division, Nanded

was maintainable. As held by this Court in various

pronouncements, it was not necessary for the trustees

to obtain permission from the Charity Commissioner for

filing the suit. As already stated, the Appellate

Court has recorded the finding, so far second floor of

the property is concerned, the original defendant can

be trespasser. The Appellate Court has also noted the

fact that the defendant threaten to the plaintiff to

hand over the possession of second floor to the

defendant, inspite of the agreement between the

parties that, the second floor will be in possession

of the plaintiff and defendant will have no any right

whatsoever on the second floor, and therefore, the

Appellate Court has taken correct view in the matter,

keeping in mind the various pronouncements of this

Court that the trustees of the trust like any other

owner can file suit and no permission of the Charity

Commissioner is necessary. In view of the above,

keeping in mind the scope of revision, I am of the

considered opinion, that the finding recorded by the

Appellate Court and interpretation given to section 50

of the Bombay Public Trust Act needs no interference.

Hence, the Civil Revision Application is devoid of any

merits same stands dismissed. Rule stands discharged,

interim relief stands vacated. The original record,

if any be sent back to the concerned Court.

In view of the dismissal of the Civil

Revision Application, Civil Application, if any stands

disposed of accordingly.

[S.S. SHINDE, J]

SDM*238.02 CRA