The President For Himself And ... vs Shakuntalabai Jaiwantrao ...
2021 Latest Caselaw 13168 Bom

                                     (1)


      IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                 BENCH AT AURANGABAD

                   912 SECOND APPEAL NO.376 OF 2021


  THE PRESIDENT FOR HIMSELF AND BOARD OF DIRECTORS
      OF HUTATMA PANSARE EDUCATION SOCIETY AND
                          ANOTHER
                           VERSUS
   SHAKUNTALABAI JAIWANTRAO RATNALIKAR THRO. GPA
         SATISHKUMAR B. BHOSIKAR AND OTHERS
                               ...
   Advocate for Appellants : Mr. VD Sapkal, Sr.Counsel, i/by
             Mr. A.P. Yenegure (consent Obtain)
                             -----

                               CORAM :      SMT.VIBHA KANKANWADI,J.

                               DATE :       15th September, 2021.

 PER COURT :-

1. Heard learned Sr.Counsel instructed by Advocate

Yenegure for the appellants.

2. Present appellants are the original defendants,

who want to challenge the judgment and decree in RCA No.

20/2016 passed by learned District Judge-1, Biloli District

Nanded on 16.1.2020, thereby allowing the appeal fled by

the present respondents - original plaintifs and thereby

reversing the judgment and decree passed in RCS No.

6/2012 dated 31.3.2016 by the learned Civil Judge, Junior

Division, Dharmabad, District Nanded. The present

respondents-original plaintifs had fled the said suit for

declaration of ownership, recovery of possession, perpetual

injunction and mesne profts. The suit was dismissed by the

learned Trial Judge on 31st March, 2016. However, the

appellate court has reversed that and it has decreed the

suit. The plaintifs were declared as owners of the land

Survey No. 631, admeasuring 3172.50 sq.ft. situated at

village Balapur, Tq. Dharmabad District Nanded. The

plaintifs were held to be entitled to get vacant possession of

the land admeasuring 9 Ares, shown by pink colour in map

at Exhibit-208, from the defendants. Defendant Nos. 1 and

2 were permanently restrained from causing interference

and obstruction into the possession of the plaintifs over the

plot Nos. 13, 4, 4/A and 5/B, shown in the rough sketch.

3. It has been vehemently submitted on behalf of

the appellants that present appellants-original defendants'

nomenclature shown in the title of the suit is wrong. They

were shown as president and secretary of Hutatma Pansare

Education Society, which is a registered trust. The trust had

not been made as party. So also, in view of the fact that the

allegations are in respect of encroachment, allegedly made

on the land of the plaintifs, then the other trustees ought to

have been made as parties to the proceeding and such

contention was, in fact, taken by them in their written

statement. Further, he also submitted that the Trial Court

had come to the conclusion that the plaintifs have failed to

prove that deft.Nos.1 and 2 had encroached on the portion

of the land in the year 1997 by raising illegal construction

activities. While reversing the said fnding, the learned

Appellate Court has not considered the oral as well as

documentary evidence, which was, in fact, considered by

the Trial Judge.

4. Taking into consideration the fact that even as per

the contentions of the plaintifs that the encroachment is by

the trust and the trust activity was going on in the alleged

encroached area, then substantial question of law that is

arising is, whether, in absence of the trust being a party, so

also, in absence of all the trustees being parties to the suit,

the said suit would have been maintainable against the

president and secretary only or not ? and whether the frst

Appellate Court would have then justifed in directing only

deft.Nos.1 and 2, i.e. president and secretary, to remove the

encroachment, would comply the requirements and,

therefore, when the appellants are showing that substantial

question of law are arising in this case, it deserves to be

admitted.

5. Further in view of the decision in the case of

Ashok Rangnath Magar Vs. Shrikant Govindrao Sangvikar -

(2015) 16 SCC 763, it is not necessary that the respondents

should be heard at the time of admission of the Second

Appeal. The Second Appeal is hereby admitted on the

following substantial questions of law, -

i. Whether the suit was maintainable only against president and secretary of the trust, without making the trust as well as other trustees as party ? In other words, whether the suit was sufering for non-joinder of necessary parties ?

ii. Whether the frst Appellate Court was justifed in reversing the decree passed by the learned trial judge in absence of taking note of the fact that the trust and all the trustees are not parties to the suit ?

iii. Whether interference is required ?

6. Issue notice to the respondents, returnable on

10.1.2022.

7. Call R and P.

(SMT. VIBHA KANKANWADI) JUDGE

BDV