Amirchand Tulsiram Gupta and others vs Vasant Dhanaji Patil & others

Judicial Analysis Court Copy Headnote Facts Arguments Court observation

1992 Supreme(Bom) 12

IN THE HIGH COURT OF BOMBAY
M.L. Pendse S.H. Kapadia, JJ.
Amirchand Tulsiram Gupta and others.... Appellants.
Versus
Vasant Dhanaji Patil others .... Respondents.
Appeal No. 295 of 1982 in Suit No. 260 of 1974, decided on 8-1-1992.
Advocates appears :
G.K. Munshi with H.P. Patel i/b M/s. Gordhandas Fozdar, for the appellants.
R.R. Pandit i/b Pandit Pandit, for respondent No. 1.
M.R. Sathe with D.J. Dalal i/b Choksey C. for respondents Nos. 5 and 6.
J.M. Bhatt, for respondent No. 7.

Headnote:ADVERSE POSSESSION
       See Limitation Act, 1963, Article 65.
       Section 50-Suit by trustees to recover property from tresspasser-No permission of bring Charity Commissioner
       Held-Right of trustees suit in usual way, that is in exercise of rights under common law not affected by provisions of Section 50-Even after amendment of Section 50 and Section 2 (10) (e), not incumbent upon trustees to obtain prior approval of Charity Commissioner to institute suit against tresspasser for recovery of possession.
       Order 1, Rule 1-Suit not instituted by all trustees-Other trustees joined after limitation period-Whether suit to be dismissed.
       Held-The suit instituted by four trustees can not be dismissed as not maintainable when the remaining trustee joined before the date of the decree. Once a co-owner institutes a suit within limitation period, the suit can not be dismissed as barred by limitation merely because one of co-owners left to be joined is added as party at larer stage.
       Article 65-Adverse possession Period of limitation 12 years - Starting point of limitation is when possession of defendants becomes adverse to plaintiffs-Incumbent upon defendants to lean strong and satisfactory evidence to establish adverse possession against plaintiffs.
       The mere fact that the person is in occupation for a long duration does not necessarily mean that the person is holding the land adversely to the true owner. There is always presumption in favour of the title holder about the holder being in possession of the land and unless and until the defendants lean strong and satisfactory evidence to establish adverse possession, the Court should be extremely slow in defeating the rights of the title holder. It hardly requires to be stated that possession or duration of 12 years or even 100 years cannot make the person in possession an owner by adverse possession. To establish adverse possession it is necessary for the person in possession to claim adversely and that means openly and intentionally hostile title to the true owner In so far as conduct is concerned, the mere fact that the person claiming adverse possession so purported to create certain rights in favour of third party would not be sufficient to uphold adverse possession unless it could be shown that he din So in his capacity as owner. It is open for trespasser to part with property by creation of allowed document or deeds, but such action can not conclusively establish that person in possession non claiming hostile and adverse title to true owners. A trespasser remain on land without authority of law, but such trespasser may not necessarily claim adverse or hostile title to true owner.

Judgment

M.L. PENDSE, J.:---This is an appeal preferred by the original plaintiffs against judgment dated April 30, 1981 delivered by learned Single Judge in Suit No. 260 of 1974 dismissing the plaintiffs' suit for declaration of title and recovery of possession with the incidental reliefs in respect of six pieces of lands situated at Bhandup in Greater Bombay. The appellants are the Trustees of the Tulsiram Devidayal Charitable Trust, a Trust registered on July 9, 1953 under the Bombay Public Trusts Act, 1950. Respondent No. 11 is the brother of appellant No. 1 and is a co-trustee and was joined as defendant No. 11 to the suit in pursuance of an order dated January 6, 1981 passed by the learned Judge granting amendment of the plaint.

2. The plaintiffs claimed that by registered Deed of Conveyance dated August 14, 1957 a piece of land admeasuring 14,017 sq. yards situated at Bhandup was purchased from Dwarkadas Hiraji Keni for a consideration of Rs. 42,501/-. The sanction for purchase of the property was secured from the Charity Commissioner on August 6, 1963. The Trustees also purchased adjoining plot of land admeasuring 37,883 sq. yards from Hirjibhai Dinshaw Billimoria by registered conveyance dated June 27,1959 for consideration of Rs. 1,48,000/-. The sanction and approval of the Charity Commissioner for this purchase was secured by order dated May 19,1959. Both these plots of lands purchased from Keni and Billimoria are adjoining to each other and the Trustees were put in actual possession after execution of the conveyances. On the date of the execution of the conveyances the lands were not surveyed by the District Land Survey. Officer of the Government of Bombay, though the work of survey was undertaken sometime in the year 1958-59. The lands purchased by the trustees were subsequently surveyed and were given Survey numbers and those Survey Nos. are :

(1) Survey No. 81 Hissa No. 1;

(2) Survey No. 81 Hissa No. 2;

(3) Survey No. 90 Hissa No. 1;

(4) Survey No. 90 Hissa No. 2;

(5) Survey No. 90 Hissa No. 3; and

(6) Survey No. 81 Hissa No. 5.

Survey No. 81 Hissa No. 1 admeasures 4 Acres 34 Gunthas, while Survey No. 81 Hissa No. 2 admeasures 9. Gunthas, Survey No. 90 Hissa Nos. 1, 2, 3 and 5 admeasure 2 Acres 26 Gunthas, 17 Acres. Guntha and uncultivated portion of 9. Gunthas, 15 Gunthas and 1 Acre 7 Gunthas, respectively. These survey numbers were treated as agricultural lands by the Revenue authorities and the assessment was levied on that basis.

After the work of survey was complete, proceedings were instituted under the Bombay Land Revenue Code before the Mahalkari by various parties claiming title to different survey numbers. It is required to be stated that Bhandup village was a Khoti village and Khoti rights were abolished and the estates were resumed under the Salsette Estates (Land Revenue Exemptions) Abolition Act, 1951, which came into effect from March 1, 1952. Under the provisions of the Act the land revenue exemption enjoyed by the Khots was abolished. The Khoti rights were managed by an organisation known as Bhandup Estate and claims were made of title to various pieces of survey numbers involved in the suit by one Dhanaji Patil and Bhandup Estate. On inquiry and after examining the evidence produced in support of the respective claims, it was held by the Inquiry Officer under the Bombay Land Revenue Code that the lands involved in the suit are owned by the plaintiff trustees and the trust has acquired title to the suit properties by two conveyances secured from Keni and Billimoria. It is the claim of the Plaintiffs that in April 1969 the trustees noticed that certain structures were erected on a portion of the land by defendant No. 5. The trustees called upon defendant No. 5 to remove the structures and the encroachments made upon the portion of the lands. Defendant No. 4 declined to do so and claimed that certain portion of the suit property was lensed out to a partnership concern known as Hind Maharashtra Const

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