This being the law laid down by Hon’ble Supreme
Court in the case of J.P. Srivastava (supra) and which governs
the field, we have to see whether there has been any express
authorization or sanction given by all the cotrustees
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 plaintifftrust.
The plaintifftrust
has
also not shown by adducing necessary evidence that its trustdeed
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 plaintifftrust
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 cotrustees
jointly.
Therefore, I find that the suit as filed by the secretary and one
of the trustees of the plaintifftrust
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.
IN THE HIGH COURT OF JUDICATURE AT BOMBAY
NAGPUR BENCH, NAGPUR
SECOND APPEAL No.180 OF 1995
Namdeo s/o. Pandurang Khedkar,
...VERSUS...
Shahi Gupta Masjid Chandrapur,
CORAM : S.B. SHUKRE, J.
DATE : 18 th NOVEMBER, 2013 .
Citation; 2014(4) MHLJ 209 Bom
Read original judgment here; click here
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.
3. For the sake of convenience, the appellant and
respondents are hereinafter referred to as defendant and
plaintifftrust.
4. It was the contention of the plaintifftrust
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
“suitland”
for convenience. The plaintifftrust
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 plaintifftrust,
the plaintifftrust
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
plaintifftrust,
did not pay heed and, therefore, the
plaintifftrust
filed a suit against the defendant for removal of
encroachment, possession and permanent injunction
restraining him from encroaching upon the land belonging to
the plaintifftrust.
The suit was filed, as said earlier, by
secretary and one trustee on behalf of the plaintifftrust,
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 plaintifftrust.
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 plaintiffTrust
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.
6. Trial Court found that the plaintifftrust
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 plaintifftrust
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 plaintifftrust
against the
said judgment and decree, the first appellate Court reversed
these findings of the trial Court and found that the plaintifftrust
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
plaintifftrust.
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 Exhibit30
(Maintenance
Khasra) for the year 198586
and the copy of
judgment passed by the State Government
Exhibit40,
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/plaintifftrust,
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 plaintifftrust
had filed the suit for removal of
encroachment, possession and grant of permanent injunction
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 plaintifftrust
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 plaintifftrust
to prove its ownership over the suit
land. During the pendency of the suit, the plaintifftrust
produced some documents and claimed that they conferred
title to the suit land upon the plaintifftrust.
Out of these
documents, two documents, Maintenance Khasra for the year
198687
vide Exhibit30
and decision of the State Government
rendered on 27th January, 1981 in Revision Application
No.LEN/517622839CR455G3
vide Exhibit40,
are of
utmost importance to the plaintifftrust
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
old Nazul Khasra of Block No.29, Bhanapeth, Chandrapur for
the year 19111912
a reference to which has been made in the
order of Government of Maharashtra vide Exhibit40,
no other
document showing supposed ownership of the plaintifftrust
in
respect of the suit land has been filed on record by the plaintifftrust.
It is also an admitted position that the plaintifftrust
has
not filed on record, any order of the Government of
Maharashtra making allotment of the suit land in favour of the
plaintifftrust
in a specific manner, thereby setting out the
terms of the allotment, the area of the land allotted to the
plaintifftrust
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 plaintifftrust,
the documents, Exhibit30
and Exhibit40,
could be read
as equivalent to allotment order conferring title upon plaintifftrust
or not.
11. Exhibit30
is a Maintenance Khasra for the year
198687.
From the endorsement made at the foot of it, one
can see that the entries therein except, those in remarks
column, have been copied from those in Maintenance Khasra
for the year 196364.
In the remarks column, there is an
endorsement made in the year 198586
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/517622839CR455G3.
This order is
available on record and it is at Exhibit40.
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 plaintifftrust
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 appellantdefendant,
who were
occupying some portions of the suitland.
In any case, the
entry made in the remarks column is selfexplanatory
and
clearly indicates that it has been recorded on the basis of order
at Exhibit40.
So, Maintenance Khasra vide Exhibit30
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 Exhibit40
is a copy of decision
given by the Government of Maharashtra in Revision
Application No.LEN/517622839CR455G3.
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
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 SubDivisional
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 SubDivisional
Officer,
Chandrapur before the Collector, Chandrapur, who also
confirmed the orders of the SubDivisional
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 Exhibit40,
is required to be examined from the
standpoint
of case of plaintifftrust
that it passes a title and
also from the view point of defendant that it does not convey
any title.
13. The order at Exhibit40
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 issuewhether
the suitland
having an area of 1,16,325
square feet CTS No.21/1, Chandrapur was allotted to the
plaintifftrust
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 plaintifftrust.
14. The order vide Exhibit40
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 suitland
or not. While deciding
the issue of encroachment by means of Idgah wall in favour of
revision applicant, Government of Maharashtra relied upon
some entries in old Nazul Khasra of Block No.29, Bhanapeth,
Chandrapur for the year 201112
(Exhibit36).
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 SubDivisional
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
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 Exhibit40
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 plaintifftrust.
It also
nowhere refers to the plaintifftrust.
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.”
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
plaintifftrust
in any manner nor does it declare the plaintifftrust
to be the owner of the suit land.
17. So, this document at Exhibit40,
examined from all
angles does not offer any assistance to the case of the
plaintiftrust.
It does not declare in so many words that the
plaintifftrust
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 plaintifftrust.
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 suitland
to
the plaintifftrust.
18. Even otherwise, both the aforestated documents i.e.
Maintenance Khasra vide Exhibit30
and Government order
vide Exhibit40
are the documents relating respectively to
revenue entries and revenue record, which are maintained
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 plaintifftrust
over the suit land.
It is of course a different matter that both these documents at
Exhibit30
and Exhibit40,
even do not show possession of
plaintifftrust
over the suitland,
which is evident from the
reasoning of order at Exhibit40
and it’s operative part. The
document at Exibit30
is founded upon the order at Exhibit40.
So, both these documents do not show possession of plaintifftrust
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
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 Exhibits30
and 40, for determining title of the plaintiff:::
trust to the suit land.
22. Having examined the question as regards nature of
the documents at Exhibit30
and Exhibit40
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 suitland
on the
plaintifftrust.
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
the trustee of the plaintifftrust
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 cotrustees
is not competent. This Court has held
that since all the cotrustees
constitute in the eyes of law as one
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 reproduced
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 cotrustees
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
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 trustdeed
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 cotrustees;
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 cotrustee
is in the
regular course of the business;
vi) where the cotrustee
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
the field, we have to see whether there has been any express
authorization or sanction given by all the cotrustees
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 plaintifftrust.
The plaintifftrust
has
also not shown by adducing necessary evidence that its trustdeed
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 plaintifftrust
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 cotrustees
jointly.
Therefore, I find that the suit as filed by the secretary and one
of the trustees of the plaintifftrust
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
the trustees in the instant case, without joining all the
cotrustees
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 plaintifftrust
with
costs are hereby confirmed.
No comments:
Post a Comment