Namdeo vs Abdulsubhan Ramjan Bax Siddhiqui
2013 Latest Caselaw 153 Bom

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                  IN THE HIGH COURT OF JUDICATURE AT BOMBAY




                                                                                                    
                            NAGPUR BENCH, NAGPUR




                                                                      
                                SECOND APPEAL No.180 OF 1995


     Namdeo s/o. Pandurang Khedkar,




                                                                     
     Aged 40 Years,
     R/o. Anchaleshwar Ward No.2,
     Tah. and District Chandrapur.                                            :      APPELLANT
                                                                                     (Ori.Defendant)




                                                   
                                         ...VERSUS...
                           
     Shahi Gupta Masjid Chandrapur,
     Public Trust No.B.3-C, Through
                          
     1.     Abdulsubhan Ramjan Bax Siddhiqui,
             Aged 48 years,
             R/o. Anchaleshwar Ward No.2,
             Tahsil & District Chandraur.
      


     2.     Shri Kazi Abdul Hafiz Abdul Munaf, (deleted)
   



             (As per Court's order dated 10.01.2013)
             Aged about 70 years,
             R/o. Jatura Ward No.2,
             Tahsil & District Chandrapur.      :       RESPONDENTS





                                                        (Ori.Plaintiffs)

     =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=
     Mr. P.N. Deopujari, Advocate for the Appellant.
     Mr. A.J. Khan, Advocate for the Respondent No.1.





     =-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=-=



                                          CORAM :   S.B. SHUKRE, J.                                                  

th DATE : 18 NOVEMBER, 2013.

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     ORAL JUDGMENT   :




                                                                                                    

1. This appeal is preferred against the judgment and

order dated 6th January, 1995 and decree drawn up

accordingly in Regular Civil Appeal No.33 of 1994 by Joint

District Judge, Chandrapur, reversing the judgment and decree

rendered in Regular Civil Suit No.279 of 1990 by Joint Civil

Judge (Junior Division), Chandrapur on 3rd January, 1994.

2. The appellant is original defendant and respondents

are original plaintiffs. The respondents had filed Regular Civil

Suit No.279 of 1990 against the defendant. It was filed for

removal of encroachment, recovery of possession and grant of

permanent injunction against the appellant. The suit was filed

on behalf of Trust by its then secretary, Abdul Subhan s/o.

Ramjan Bax Siddhiqui and one trustee Kazi Abdul Hafiz Abdul

Munaf. During the pendency of the present appeal, Abdul

Subhan s/o. Ramjan Bax Siddhiqui, was substituted by the

President of the said Trust Shafi Mohd. Abdul Kazi and name

of respondent No.2/original plaintiff No.2 came to be deleted

from the array of the respondents.

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3. For the sake of convenience, the appellant and

respondents are hereinafter referred to as defendant and

plaintiff-trust.

4. It was the contention of the plaintiff-trust that it was

a registered public trust and owner of 1,16,325 square feet of

area of Plot No.21/1 in Block No.44, Sheet No.22 of Nazul

Mohalla Bhanapeth, Chandrapur hereinafter referred to as

"suit-land" for convenience. The plaintiff-trust submitted that

in the year 1981, defendant had encroached upon 765 square

feet area out of the said plot and constructed a house thereon,

which was shown in red colour and by letters A,B,C,D annexed

to the plaint. Since there was an encroachment made by the

defendant on the said portion of the land belonging to plaintiff-

trust, the plaintiff-trust issued a notice on 21.6.1988 by

registered post to the defendant calling upon him to remove

the encroachment. The defendant, as alleged by the

plaintiff-trust, did not pay heed and, therefore, the

plaintiff-trust filed a suit against the defendant for removal of

encroachment, possession and permanent injunction

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restraining him from encroaching upon the land belonging to

the plaintiff-trust. The suit was filed, as said earlier, by

secretary and one trustee on behalf of the plaintiff-trust, who

claimed that they had interest in the said trust and it was their

duty to safeguard the interest of the public trust.

5. The defendant resisted the suit by filing his written

statement. He denied that Plot No.21/1 in Block No.44 (suit

land) belonged to the plaintiff-trust. He asserted that it was a

nazul land owned by the Government. He even claimed that

he had encroached upon this Government land and his

encroachment was regularized later on, as he was paying

municipal taxes and also electricity charges. He further

submitted that the secretary and the trustees of the plaintiff-

Trust were not authorized to file any suit on behalf of the

Trust. He submitted that he had spent nearly about

Rs.10,000/- for constructing the house on a portion of the suit

land and that his house was situated at a distance of 1000 feet

from the Masjid. On these grounds he urged that suit be

dismissed with costs.

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6. Trial Court found that the plaintiff-trust could not

prove its ownership in respect of the suit land and also could

not prove that the defendant had encroached upon a portion of

the suit land to the extent of 765.59 square feet of area in the

year 1981 and therefore dismissed the suit of the plaintiff-trust

with costs by its judgment and decree dated 3rd January, 1994.

While dismissing the suit, trial Court also recorded a finding

that the encroachment made by the defendant over the portion

of the suit land was regularized and accepted by the Municipal

Council and Nazul Department. In the appeal bearing Regular

Civil Appeal No.33 of 1994 filed by plaintiff-trust against the

said judgment and decree, the first appellate Court reversed

these findings of the trial Court and found that the plaintiff-

trust had proved that suit land was owned by it and that

defendant had encroached upon it to the extent of area of 765

square feet and accordingly by its judgment and order passed

on 6th January, 1995, allowed the appeal and decreed the suit

directing the defendant to remove the encroachment and

handover possession of the encroached area to the

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plaintiff-trust. It also granted permanent injunction restraining

the defendant from making any encroachment on the suit land.

7. This Court admitted the present appeal by order

dated 24th August, 1995, on the following substantial questions

of law :

i) Whether the Exhibit-30 (Maintenance

Khasra) for the year 1985-86 and the copy of judgment passed by the State Government

Exhibit-40, are the documents of title; and whether the revenue record is document of title ?

ii) Whether the suit filed by the few trustees

by not making the other trustees as parties, is maintainable ?

8. I have heard Mr.P.N. Deopujari, learned counsel for

the appellant/original defendant. Nobody appeared on behalf

of the respondents/plaintiff-trust, although sufficient

opportunity was granted. With the help of learned counsel for

the appellant, I have carefully gone through the memo of

appeal, impugned judgments, orders and decrees and also

record of the Courts below.

9. The plaintiff-trust had filed the suit for removal of

encroachment, possession and grant of permanent injunction

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against the defendant, claiming that it was the owner of the

suit land and that the defendant had made an encroachment

over the portion of the suit land to the extent of 765 square

feet of area. Naturally, it was expected from the plaintiff-trust

to prove its ownership over the suit land. The basis of its

ownership was not pleaded in the plaint and it was not

necessary also. But, when the defendant denied the ownership

and claimed that the suit land was a Government land, it fell

upon the plaintiff-trust to prove its ownership over the suit

land. During the pendency of the suit, the plaintiff-trust

produced some documents and claimed that they conferred

title to the suit land upon the plaintiff-trust. Out of these

documents, two documents, Maintenance Khasra for the year

1986-87 vide Exhibit-30 and decision of the State Government

rendered on 27th January, 1981 in Revision Application

No.LEN/5176-22839-CR-455-G-3 vide Exhibit-40, are of

utmost importance to the plaintiff-trust considering nature of

it's case. It is an admitted fact, as borne out from the records

of Courts below, that apart from these two documents and one

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old Nazul Khasra of Block No.29, Bhanapeth, Chandrapur for

the year 1911-1912 a reference to which has been made in the

order of Government of Maharashtra vide Exhibit-40, no other

document showing supposed ownership of the plaintiff-trust in

respect of the suit land has been filed on record by the plaintiff-

trust. It is also an admitted position that the plaintiff-trust has

not filed on record, any order of the Government of

Maharashtra making allotment of the suit land in favour of the

plaintiff-trust in a specific manner, thereby setting out the

terms of the allotment, the area of the land allotted to the

plaintiff-trust and number of years for which the allotment

would remain valid. 10. Therefore, it would have to be

seen as to whether, in the absence of any allotment order of

Government of Maharshtra allotting the suit land to plaintiff-

trust, the documents, Exhibit-30 and Exhibit-40, could be read

as equivalent to allotment order conferring title upon plaintiff-

trust or not.

11. Exhibit-30 is a Maintenance Khasra for the year

1986-87. From the endorsement made at the foot of it, one

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can see that the entries therein except, those in remarks

column, have been copied from those in Maintenance Khasra

for the year 1963-64. In the remarks column, there is an

endorsement made in the year 1985-86 to the effect that Nazul

land has been mutated in the name of "Shahi Gupt Masjid,

Chandrapur" as per order dated 27.1.1981 passed in Revision

Application No.LEN/5176-22839-CR-455-G-3. This order is

available on record and it is at Exhibit-40. This mutation entry

has been taken in the said Maintenance Khasra in pursuance of

order of Tahsildar passed on 7.2.1986. Copy of order passed

by the Tahsildar on 7.2.1986 has not been produced in

evidence by the plaintiff-trust and, therefore, it is not known as

to what order was exactly passed by the Tahsildar and whether

it was passed after issuing notices to all the affected persons or

not, as admittedly on that day, there were some persons,

including the present appellant-defendant, who were

occupying some portions of the suit-land. In any case, the

entry made in the remarks column is self-explanatory and

clearly indicates that it has been recorded on the basis of order

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at Exhibit-40. So, Maintenance Khasra vide Exhibit-30 taken

by itself cannot be considered to be a document of title at all.

It only records a mutation entry and such an entry made in the

revenue record, in view of settled law, does not constitute a

document of title. Mutation entries do not convey or

extinguish any title. At the most, they can be held to be

relevant only for the purpose of collection of land revenue.

This is what Hon'ble Supreme Court has held in the case of

Balwant Singh and another vs. Daulat Singh (dead) by L.Rs.

reported in AIR 1997 SC 2719, referred to me by learned

counsel for appellant.

12. The document vide Exhibit-40 is a copy of decision

given by the Government of Maharashtra in Revision

Application No.LEN/5176-22839-CR-455-G-3. It appears that

the proceedings in this regard were initiated after the Nazul

Surveyor submitted his report upon a complaint made to him

by one Nawaji and others on 29.7.1972 that Muslims and the

trustees of the Mosque have encroached upon the Government

land Plot No.21/1 and 21/4, Sheet No.22, Block No.44 of

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Chandrapur by constructing an Idgah wall on these lands. The

report of the Nazul Surveyor had supported the allegations

made in the plaint and, therefore, the Naib Tahsildar,

Chandrapur registered a case against one Peermohamad Sk.

Hussain, Musalman. In these proceedings, Naib Tahsildar,

after enquiry, passed an order dated 26.10.1972 that said

person had encroached upon the Government land and,

therefore, he imposed a fine of Rs.15/- on the said person.

Said Peermohamad preferred an appeal before the Sub-

Divisional Officer, Chandrapur, who by order dated 16.7.1973,

confirmed the order of the Naib Tahsildar. Second Appeal was

preferred against the order of the Sub-Divisional Officer,

Chandrapur before the Collector, Chandrapur, who also

confirmed the orders of the Sub-Divisional Officer, Chandrapur

and Naib Tahsildar, Chandrapur. Against these concurrent

orders, said Peermohamad Sk. Hussain preferred revision

application before the Government of Maharashtra, which

came to be decided by order dated 27th January, 1981. This

order at Exhibit-40, is required to be examined from the

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stand-point of case of plaintiff-trust that it passes a title and

also from the view point of defendant that it does not convey

any title.

13. The order at Exhibit-40 shows that only issue

involved in the proceedings carried in Revision Application

before the Government was whether or not the Idgah wall

constructed by members of Muslim community on CTS

No.21/1, Sheet No.22, Block No.44, Chandrapur was an

encroachment on Government land. The issue thus was

confined to an Idgah wall and no more. It did not envelope the

larger issue-whether the suit-land having an area of 1,16,325

square feet CTS No.21/1, Chandrapur was allotted to the

plaintiff-trust and whether it was the owner thereof ? It is

only this issue, which has been answered and so any decision

on this issue would not confer any title upon the plaintiff-trust.

14. The order vide Exhibit-40 can be examined from the

angle what reasons does it give, so as to find out, if it could be

used to pass on the title to the suit-land or not. While deciding

the issue of encroachment by means of Idgah wall in favour of

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revision applicant, Government of Maharashtra relied upon

some entries in old Nazul Khasra of Block No.29, Bhanapeth,

Chandrapur for the year 2011-12 (Exhibit-36). The order

stated that at Sr.No.11 there was an entry of a Well belonging

to Muslim community, that at Sr.No.12 there was an entry of

Masjid of Muslim community, and that at Sr.No.13 there was

an entry of Kabrasthan (Muslim). It further stated that at

Sr.No.14, there was an entry that it was a Nazul piece of land

owned by the Government, however, in the remarks column, it

was mentioned that in this piece of land, old Kabrasthan of

Muslims was situated. On the basis of these entries and the

spot inspections carried out by Sub-Divisional Officer and

Resident Deputy Collector, Chandrapur, revealing that there

were old and new graves on the suit land, Government of

Maharashtra concluded that it was clear that whole area was

being utilized by the "Muslim community only" as their grave

yard. The order also mentioned that it was a 'common place

knowledge, particularly amongst Muslims, to offer prayers in

congregation, particular to the muslim community'. On such a

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reasoning, Government of Maharashtra further found that the

muslims used to offer prayers at this spot of Kabrasthan meant

exclusively for them. Such reasoning is based upon some

revenue entries and conjectures. The order vide Exhibit-40

founded on such a reasoning cannot be taken as a decision to

convey a title or allot of land. Then, it is also interesting to

take a note of what the decision finally declares.

15. The operative part of the order makes such a

declaration as to show that it has not nothing to do with any

allotment of land or passing of title to plaintiff-trust. It also

nowhere refers to the plaintiff-trust. It declares that the Idgah

wall is not an encroachment made on the Government land by

Muslim community of Chandrapur. The operative part of the

order, to set all doubts at rest, is reproduced thus :

"The revision application is allowed. The order of the learned Resident Deputy Collector,

Chandrapur dated 5.3.1976 is set aside. It is declared that the construction of Idgah wall on CTS No.21/1, Sheet No.22, Block No.44 of Chandrapur by muslim community of Chandrapur is not an encroachment on Government land."

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16. It would be clear from the above referred order that

the declaration is about whether or not Idgah wall is an

encroachment and who has made it. It nowhere refers to

plaintiff-trust in any manner nor does it declare the plaintiff-

trust to be the owner of the suit land.

17. So, this document at Exhibit-40, examined from all

angles does not offer any assistance to the case of the

plaintif-trust. It does not declare in so many words that the

plaintiff-trust is the owner of the suit land. It also does not

declare that the construction of Idgah wall existing on the suit

land was made by plaintiff-trust. It only says that it has been

made by the Muslim community of Chandrapur and is not an

encroachment upon the Government land. Such a document

cannot be interpreted as conveying any title to the suit-land to

the plaintiff-trust.

18. Even otherwise, both the aforestated documents i.e.

Maintenance Khasra vide Exhibit-30 and Government order

vide Exhibit-40 are the documents relating respectively to

revenue entries and revenue record, which are maintained

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primarily for the purpose of collection of land revenue and not

for keeping any evidence or record of ownership and title to

lands and, therefore, they cannot elevated to the status of the

documents of title. At the most, they can be used for

determining possession of the plaintiff-trust over the suit land.

It is of course a different matter that both these documents at

Exhibit-30 and Exhibit-40, even do not show possession of

plaintiff-trust over the suit-land, which is evident from the

reasoning of order at Exhibit-40 and it's operative part. The

document at Exibit-30 is founded upon the order at Exhibit-40.

So, both these documents do not show possession of plaintiff-

trust as well. Be that as it may, fact remains that as a matter of

principle of law the limited purpose for which revenue record

can be put to use is of ascertaining possession, and that too

only as long as no contrary evidence is brought on record, in

view of presumptive value attached to it under Section 157 of

the Maharashtra Land Revenue Code, 1966.

19. In the case of Gurunath Manohar Pavaskar and

others vs. Nagesh Siddappa Navalgund and others, reported

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in (2007) 13 SCC 565, the Hon'ble Apex Court has held that a

revenue record is not a document of title and it merely raises a

presumption in regard to possession. The observations of the

Hon'ble Apex Court in paragraph 12 are relevant in this regard

and are reproduced thus :

"A revenue record is not a document of title. It

merely raises a presumption in regard to possession. Presumption of possession and/or

continuity thereof both forward and backward can also be raised under Section 110 of the Evidence Act. The courts below, were, therefore,

required to appreciate the evidence keeping in view the correct legal principles in mind."

20. This law has been reiterated by the Hon'ble Apex

Court in its latest judgment rendered in the case of, State of

Andhra Pradesh and others vs. Star Bone Mill and Fertiliser

Company, reported in (2013) 9 SCC 319, when it held that a

revenue record is not a document of title and that it merely

raises a presumption in regard to possession (paragraph 21).

21. Thus, it is clear that there was no scope for the first

appellate Court to place any reliance upon both the documents

vide Exhibits-30 and 40, for determining title of the plaintiff-

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     trust to the suit land.  




                                                                                                   

22. Having examined the question as regards nature of

the documents at Exhibit-30 and Exhibit-40 from every possible

angle, I am of the view that they are not at all the documents

of title and they do not confer any title to the suit-land on the

plaintiff-trust. They cannot be construed by any stretch of

imagination as constituting documents of title. As already

stated, revenue record, in view of the settled law, is not a

document of title. Question No.1 is accordingly answered as in

the negative.

23. This brings me to the next question as to whether

the suit filed by some of the trustees and not by all the trustees

for recovery of possession is maintainable or not. In this case,

admittedly not all the trustees were joined as parties to the

suit. It was filed on behalf of the Trust by its secretary and one

of the trustees. It was a suit for removal of encroachment and

recovery of possession. The defendant had taken an objection

that the secretary and one trustee were not authorized to file

the suit. It was, therefore, incumbent upon the secretary and

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the trustee of the plaintiff-trust to show their authority to bring

a suit on behalf of Trust. Of course, the trial Court ought to

have framed an issue in this regard, but it was not framed. The

objection, however, was about tenability of the suit and it went

to the root of the matter. Therefore, eventhough no issue was

framed in this behalf by the trial Court and even no point was

framed by the first appellate Court, the defendant was at

liberty to agitate this issue even at the stage of second appeal

and he has done it in this case. It would, therefore, be

necessary for this Court to consider this objection of the

defendant in the light of the law governing the field.

24. Mr P.N. Deopujari, learned counsel for the appellant

has referred to me the case of Kamruddin Masjit Trust by its

Mutawali Trustee Shaikh Bashir Ismail vs. Abdul Rahiman

Fakiruddin, reported in 1986 (2) Bom.C.R. 121, wherein

learned Single Judge of this Court has held that a suit filed by

one of the trustees for possession of the suit property without

joining other co-trustees is not competent. This Court has held

that since all the co-trustees constitute in the eyes of law as one

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collective trustee, one of the trustees cannot sue for possession

unless and except where the instrument of Trust expressly so

authorizes and provides. The relevant observations of this

Court as appearing in paragraph 4 are re-produced thus :

"Firstly, the plaintiff suing for possession of trust property was admittedly only one of the trustees, while in law all the trustees must join in such

action. All co-trustees must in general, act in concurrence and jointly. It is a joint office that

they hold. They constitute in the eyes of law but one collective trustee. One or some only of the trustees cannot sue for possession unless and except

where the instrument of trust expressly so authorises and provides, which is not so here. Alone and by himself, therefore, the plaintiff was not entitled to sue the defendant for possession"

25. In the case of Shyamabai wd/o. Surajkaran Joshi

and others vs. Madan Mohan Mandir Sanstha, a public

Trust by Trustee Bhaiji Kanji Ganatra in Second Appeal

No.116 of 1998 decided on 22nd October, 2013, this Court had

an occasion to deal with the same question of law. In this case,

the suit for ejectment and possession was filed on behalf of the

Trust by one of its trustees, on the basis of resolution of the

Trust authorizing the said trustee and one more trustee to file

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the suit against the appellant therein. This Court, following the

law laid down by the Hon'ble Apex Court in the case of J.P.

Srivastava and Sons (P) Ltd. and others vs. Gwalior Sugar

Co. Ltd. and others, reported in (2005) 1 SCC 172 held that,

although, as a general rule, trustees must act together and

execute duties of their office jointly, there have been certain

exceptions to this general rule against delegation. This Court

enumerated the exceptions to the general rule thus :

i) where the trust-deed allows the trust to be executed by one or more or by a majority of trustees;

ii) where there is express sanction or approval of the

act by the co-trustees;

iii) where the delegation of power is necessary;

iv) where the beneficiaries competent to contract

consent to the delegation;

v) where the delegation to a co-trustee is in the regular course of the business;

vi) where the co-trustee merely gives effect to a decision taken by the trustees jointly.

26. This being the law laid down by Hon'ble Supreme

Court in the case of J.P. Srivastava (supra) and which governs

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the field, we have to see whether there has been any express

authorization or sanction given by all the co-trustees to the

secretary and the trustee to file a suit for possession. No such

express sanction or authorization has been brought on record

in the instant case by the plaintiff-trust. The plaintiff-trust has

also not shown by adducing necessary evidence that its trust-

deed allows such delegation of duty or that delegation was

necessary in the facts and circumstances of the case or that

beneficiaries competent to contract had given consent for filing

of suit on behalf of plaintiff-trust or that delegation was in a

regular course of business or that action of filing of the suit was

only ministerial in nature as decision to file a suit against the

defendant was already taken by all the co-trustees jointly.

Therefore, I find that the suit as filed by the secretary and one

of the trustees of the plaintiff-trust against the defendant,

having been not covered by any of these exceptions, was not

tenable at law and on this ground alone, should have been

dismissed by the first appellate Court.

27. For these reasons, I find that the suit filed by few of

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the trustees in the instant case, without joining all the

co-trustees as parties, was not maintainable. Second

substantial question of law is, therefore, answered as in the

negative.

28. In the result, the appeal succeeds and it deserves to

be allowed with costs.

29. Accordingly, the appeal is allowed with costs.

30. The judgment and order dated 6th January, 1995, in

Regular Civil Appeal No.33 of 1994, passed by Joint District

Judge, Chandrapur and decree drawn up therein are hereby

quashed and set aside, and judgment and order dated 3rd

January, 1994 in Regular Civil Suit No.279 of 1990, passed by

the Joint Civil Judge (Junior Division), Chandrapur and decree

drawn up therein dismissing the suit of the plaintiff-trust with

costs are hereby confirmed.

JUDGE

DWW