Bombay High Court
The President For Himself And ... vs Shakuntalabai Jaiwantrao ... on 5 April, 2022
Bench: Mangesh S. Patil
965 SA 376 OF 2021.odt
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
BENCH AT AURANGABAD
SECOND APPEAL NO.376 OF 2021
WITH CA/244/2022 IN CA/9497/2021 WITH CA/9497/2021 IN
SA/376/2021 WITH CA/1379/2022 IN CA/9497/2021
1) The President for himself and
Board of Directors of
Hutatma Pansare Education Society,
Dharmabad, Dist. Nanded.
2) The Secretary,
Hutatma Pansare Education Society,
Dharmabad, Dist. Nanded. ... Appellants.
(Orig. defendant Nos.
1 and 2)
VERSUS
1) Shakuntalabai d/o Jaiwantrao Ratnalikar,
@ Chaya w/o Bhaskar Bhosikar,
Died through her legal representatives :
1A) Satishkumar Bhaskarrao Bhosikar,
Age 55 years, occ. Service,
R/o. 301, A-3, Llita Avenue,
Street No. 11 (old street No. 10)
Himayat Nagar, Hyderabad- 500 029.
1B) Sangeetha Paresh Walvekar,
Age 52 years, Occ. Household,
R/o. 1-8-724/3, Besides Sri. Sai
Ved Point Lane, Vegetable Market,
Nallakunta, Hyderabad- 500 044.
2) Kranti d/o Jaiwantrao Ratnalikar,
@ Uma w/o Pramodrao Kakani,
Age 49 years, Occ. Household,
R/o. Gangekhed, Dist. Parbhani.
3) Anil s/o Jaiwantrao Ratnalikar,
Age 47 years, Occ. Service,
R/o. Dharmabad, Dist. Nanded.
1/6
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965 SA 376 OF 2021.odt
4) The Chief Officer,
Dharmabad Municipal Council,
Dharmabad, Dist. Nanded. ... Respondents
(R. Nos. 1 to 3 are orig
plaintiffs. R. no. 4 orig.
defendant No. 3)
...
Advocate for the Appellants : Mr. P.R. Katneshwarkar h/f Mr. A.P.
Yenegure.
Advocate for Respondent Nos. 1A, 1B and 3 : Mr. Deelip Patil Bankar
a/w Ms. Pooja Deelip Patil, h/f Mr. Shripad Kulkarni.
Advocate for Respondent No. 2 : Mr. R. R. Kakani.
Advocate for Respondent No. 4 : Mr. Mujtaba Gulam Mustafa h/f Mr.
Mustafa Tamlurker.
CORAM : MANGESH S. PATIL, J.
DATE : 05.04.2022.
JUDGMENT :
This is a second appeal by the original defendants being aggrieved
and dissatisfied by the judgment and order passed by the lower appellate
court thereby quashing and setting aside the judgment and order passed by
the trial court dismissing the suit of the respondents/plaintiffs for possession
of a portion admeasuring 3172.50 square feet from land Gat No. 631.
2. By the order dated 15.09.2021 the second appeal has been admitted
on 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 suffering for non joinder of necessary
parties ?
(ii) Whether the first appellate court was justified in
reversing the decree passed by the learned trial judge in
absence of taking note of the fact that the trust and all the
965 SA 376 OF 2021.odt
trustees are not parties to the suit ?
(iii) Whether interference is required ?
3. The facts as are necessary to bear in mind, which give rise to the
aforementioned substantial questions of law may be summarized as under :
(a) The respondent Nos. 1 to 3 claiming themselves to be the exclusive
owners of the land Gat No. 631 and alleging about the appellants having
encroached over northern side 3172.50 square feet area of the land claimed
removal of the encroachment and possession.
(b) The appellants contested the suit by claiming that their predecessor
had gifted the land Gat No. 603 as also Gat No. 631 to the education society
of which they are the President and the Secretary. They also put up a plea of
adverse possession and also raised a ground of estoppel.
(c) The trial court dismissed the suit holding that the gift was established
and though it was a deed which was not registered, it could be used for
collateral purpose and concluded that the respondent Nos. 1 to 3 had no
title to the property.
(d) The lower appellate court by the judgment and order under challenge
reversed the decision of the trial court and decreed the suit holding that the
deed that was being put forth by the appellant was an unregistered
document and by virtue of section 123 of Transfer of Property Act and the
bar contained under Section 49 of the Registration Act, 1908 it could not
have been read in evidence. It also concluded that the purpose for which
the deed was sought to be brought into existence that is to prove the gift
was not a collateral purpose but the main purpose and therefore it could not
have been read in evidence much less to conclude title of the appellant's
society.
4. I have heard the learned advocates of both the sides in extenso.
965 SA 376 OF 2021.odt
5. Though no specific issue was raised, sought to be framed either before
the trial court or the lower appellate court, the aforementioned questions of
law have been raised in this second appeal for the first time. Going by the
decision of the Supreme Court in the matter of Narayanan Rajendran And
Anr vs Lekshmy Sarojini And Ors; (2009) 5 SCC 264, the provision of
Section 100 of the Code of Civil Procedure requires this court only to answer
the substantial questions of law formulated at the time of admission of the
second appeal and it is not expected to undertake a full fledged scrutiny of
the entire decisions rendered by the courts below. Consequently, it would be
apt first of all to deal with and decide these substantial questions of law.
6. As is cursorily mentioned herein above, in fact no specific stand
regarding non joinder of the Trust to which the property was allegedly gifted
was ever raised before any of the two courts below and none was sought to
be decided. Still, even if it is to be taken into consideration now, the
questions as have been formulated would presuppose that the respondent
Nos. 1 to 3 have been admitting title of the Trust to the disputed piece of
land which according to them is an encroached portion. They do not admit
that the Trust is the owner of the encroached portion rather it is their stand
that they are the owners of the land Gat No. 631 of which that portion is a
part and parcel.
7. Besides, for whatever reason, the appellants have no where brought
on record any extract of the public trust register which is maintained under
the Maharashtra Public Trust Act to demonstrate that the land Gat No. 631
has been recorded as the property of the Trust. On my oral query with
learned advocate Mr. Katneshwarkar he fairly conceded that this property
has not been shown in the Public Trust Register as the property of the Trust.
If this is the state of affairs, when the property Gat No. 631 of which the
encroached portion is a part and parcel is not recorded in the Public Trust
Register, one need not delve much but conclude that the Trust can not be
said to be a party which is interested in the dispute.
965 SA 376 OF 2021.odt
8. In view of such state of affairs, in fact no further discussion needs to
be there and this would suffice to reply both these substantial questions in
the negative.
9. Though it would be superfluous, even if some discussion is to be made
in respect of the merits of the matter, admittedly, the claim being put forth
by the appellant is based on an unregistered gift deed. Going by the
provision of Section 123 of the Transfer of Property Act read with section 49
of the Registration Act, no person can be entitled to establish any right or
title on the basis of such an unregistered gift deed. Irrespective of whether
it would be morally correct for the respondent Nos. 1 to 3 to now take a
stand which would be inconsistent with the wish of their predecessor, the
rule of law must prevail. The lower appellate court has considered these
provisions in correct perspective while refusing to concur with the erroneous
and illegal observations of the trial court allowing this unregistered gift deed
to be read in evidence by observing that it could be used for collateral
purpose. Ex facie, it had grossly erred in treating the claim being put forth
by the appellants as the one based on some collateral purpose. It is the
main purpose which was being sought to be established by proving the gift
deed. In the absence of which, their claim to the title to the disputed
portion is simply to be discarded as has been rightly done by the lower
appellate court.
10. Some arguments are advanced by the learned advocate Mr.
Katneshwarkar on the point of limitation as also the plea of adverse
possession, both such pleas go hand in hand. Going by the nature of the
suit, the respondent Nos. 1 to 3 have been claiming possession of the
encroached portion based on title. Ex facie, the suit was governed by Article
65 of the Limitation Act, 1963 which provides for a period of limitation of
12 years and the period begins to run only if the defendant takes and
establishes a plea of adverse possession. Once having propounded a gift
deed the plea of adverse possession was certainly inconsistent and seems to
965 SA 376 OF 2021.odt
have been waived in the mid way by electing to stuck to right created by the
gift deed. Therefore, the submission of learned advocate Mr. Katneshwarkar
that the suit was also barred by limitation is not legally tenable.
11. The second appeal is dismissed.
12. Pending civil applications are disposed of.
13. After pronouncement of the judgment, the learned advocate Mr.
Yenegure for the appellants submits that the appellants have been granted
interim protection which is in operation till date and the same may be
continued for a reasonable period to approach the Supreme Court.
14. The learned advocate for the respondent Nos. 1 and 2 strongly
opposes the request.
15. Considering the nature of the dispute, the interim relief to continue
for a period of four weeks.
(MANGESH S. PATIL, J.)
mkd/-
