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2018 Supreme(SC) 1136
SUPREME COURT OF INDIA
A.M. Khanwilkar, D.Y. Chandrachud, JJ.
Vijay Pullarwar & Ors. – Appellant(s)
Versus
Shri Hanuman Deostan, a Public Trust through its Trustees – Respondent(s)
CIVIL APPEAL NO.7789 OF 2011
Decided On : 16-11-2018
IMPORTANT POINTS
A party failing to establish title over suit property is not entitled to its possession.
High Court, in second appeal, cannot make out a new case not pleaded by plaintiff on basis off its assumptions.
Headnote:(a) Bombay Public Trusts Act, 1950 – Section 50, 51 – Registration of Shri Hanuman Deosthan – application and registration at House No.55 in Circle No.3 used for performing puja in the temple – “Padukas of Haridas Baba” installed in House No.878 in Circle No.3 not included in any document – No evidence of existence of the temple in House No.878 in Circle No.3 in possession of the defendants/appellants – Held, suit for possession of House No.878 in Circle No.3 instituted by the plaintiffs/respondents on the basis of title, was devoid of merits – First appellate court rightly dismissing the suit. (Para 24, 25, 26)
(b) Code of Civil Procedure 1908 – Section 100 – Suit property – Claim for possession – Claim made for House No.878 in Circle No.3 on the ground of “Padukas of Haridas Baba” installed therein – Registration documents of showing its existence at House No.55 in Circle No.3 – No mention of “Padukas of Haridas Baba” and House No.878 in Circle No.3 – High Court brushing aside objection of the two properties being different on spacious assumption that it is a case of mis-description of the property in the official register of public trust – Not pleaded much less proved by the plaintiffs/respondents – High Court’s finding a case of manifest error or error apparent, if not perverse. (Para 25)
(c) Property law – Title and possession – The Shri Hanuman Deosthan Trust claiming title and possession of House No.878 in Circle No.3 as trust property on ground of Padukas of Saint Haridas Baba installed there – Not establishing their title over the suit house by any document – Not entitled to relief of possession. (Para 29)
(1965) 2 SCR 233; (2004) 5 SCC 272 – Relied upon
Facts of the case:
The respondent No.1, Shri Hanuman Deosthan, a public trust duly registered under the provisions of the Bombay Public Trusts Act, 1950 (presently known as Maharashtra Public Trusts Act, 1950) (for short “1950 Act”) filed Special Civil Suit for possession on the basis of title.
The Trial Court partly decreed the suit by directing the defendants/appellants to hand over vacant possession of the suit house to the plaintiffs/respondents, while rejecting their claim for occupation charges.
The first appellate court allowed the appeal and reversed the order of the trial court.
The High court in second appeal restored the trail court order.
Finding of the Court:
The first appellate court decided the matter correctly.
Result: Appeal allowed.
JUDGMENT
A.M. Khanwilkar, J.
1. This appeal is filed by the original defendants against the judgment and order of the High Court of Judicature at Bombay, Nagpur Bench in Second Appeal No.364 of 1990 decided on 24th October, 2008, whereby the High Court, in the second appeal, restored the decree of possession of the suit property passed by the trial court against the appellants, by setting aside the judgment and decree passed by the District Court, Nagpur in Regular Civil Appeal No.564 of 1983 dated 21st January, 1989.
2. The respondent No.1, Shri Hanuman Deosthan, is a public trust duly registered under the provisions of the Bombay Public Trusts Act, 1950 (presently known as Maharashtra Public Trusts Act, 1950) (for short “1950 Act”). The respondents filed Special Civil Suit No.1127 of 1978 in the Civil Court, Senior Division, Nagpur, for possession on the basis of title. It was asserted that one Bansilal S/o Gangadin Perdeshi Teli, R/o Circle No.3 of Nagpur was the disciple of a Hindu saint by the name of Haridas Baba Vishv. The said saint took Samadhi about 70 years back before the institution of the suit. He had a “Math” situated in Circle No.3 in house bearing No.878, where his (Haridas Baba) Padukas came to be installed. It is stated that the said Bansilal was the Chief Wahiwatdar of the said Math and was looking after the pujas and utsavas performed in the Math. Before his death, which occurred in 1944, he had asked his wife, Yashodabai, to look after and manage the Math and conduct puja and utsavas from time to time in his absence and keep the Math property in good condition from the income of the Math. He had also told his wife Yashodabai that after his death, she may appoint a panch committee in the event she was not in a position to look after the affairs of the Math herself. After 1946, Yashodabai executed a document and appointed a panch committee for the proper management of the Math whilst she remained one of the trustees. That document was registered on 23rd May, 1946 (Exh.41). She had nominated five persons as panchas in the panch committee namely, Shri Badal S/o Giridharilal, Mohanlal Hanuman, Ramjiwan Kaluram, Nandideep Bhangavandin and Onkar Gandelal Pardeshi. Amongst them, Badal was to remain as sarpanch. After his demise, one Chotelal Bhikaji Pardeshi assumed the office of Sarpanch.
3. It was further stated that except Ramjiwan Kaluram, all the trustees/panchas had expired by the time the suit was filed. Further, Chotelal Bhikaji Pardeshi, after taking over as sarpanch, made an application on 31st August, 1953 (Ex.63) to the appropriate authority for registration as a public trust under the provisions of the Madhya Pradesh Public Trust Act. In that application, the description of the property of the trust was given as per the schedule to the plaint, which property was amongst other properties registered as the property of the public trust. After the provisions of the Bombay Public Trust Act, 1950 (Exh.64 dated 13th September, 1961) became applicable to the Vidarbha region of the State of Maharashtra, Chotelal got the trust registered under the 1950 Act, bearing P.T.R. No.A-50(N).
4. It is then stated that after the death of Chotelal Bhikaji Pardeshi, a change report was submitted to the local office of the public trust at Nagpur which came to be rejected as no proper succession was documented. Resultantly, the local persons having interest in the affairs of the Math preferred an application for framing of a scheme and appointment of trustees, being application No.71 of 1971. The Deputy Charity Commissioner, in exercise of powers under Section 50-A of the 1950 Act framed a scheme and appointed four persons as trustees of Shri Hanuman Deosthan, namely, Bhayyalal Giridharilal, Kashiram Fakiraji Potbhare, Laxman Zingaraji Sapate, Navi Shukravari and Narayan Tanbaji Kurkute vide order dated 4th April, 1975 (Exh.46). In short, the respondent asserted that the suit property occupied by the predecessor of the appe
