2006 Supreme(Bom) 357

IN THE HIGH COURT OF BOMBAY
Mohamed Ibrahim Khan
Versus
Gajanan Rama Parab Gaonkar
Decided on, MARCH 10, 2006

Headnote:Civil Procedure Code, 1908 - Section 100 Second appeal Challenging finding of trial Court Substantiate question of law Locus standi of plaintiff to maintain suit Plaintiff owner of suit property Plaintiff in 1972, permitted defendant to keep a movable wooden gada on his land In 1986 plaintiff asked defendant to vacate said gada Defendant refused to vacate same Plaintiff filed suit for injunction directing defendant to remove the said gada Resisted by defendant Trial Court decreed suit appeal Decree reversed by first Appellate Court Dismissed suit Admittedly plaintiff in possession of suit property for over 40 years Plaintiff having possessory title entitled to seek all reliefs against defendant Defendant claimed no right or title against plaintiff Plaintiff entitled to succeed in suit Defendant rightly ordered by trial Court to be evicted Plaintiff filed suit in representative capacity Suit maintainable First Appellate Court erred in holding that plaintiff had no locus standi to file a suit Second appeal succeed The judgment of first appellate Court disturbed Judgment of trial Court is to be maintained Suit stand decree with cost.

       Civil Procedure Code, 1908 - Order I, Rule 8 Suit in representative capacity Maintainability of Unregistered association of members of Muslim community filed suit for possession Subsequently suit converted in representative capacity on behalf of members of Muslim community Suit maintainable as filed in interest of community Cannot be dismissed for want of locus standi. The learned Additional District Judge observed, and in my view rightly, that the amendment did not show any change of the suit in its tenor although there was a change in description. The change in name was carried out only because the Association namely Jamatul Muslamin was not registered as a legal entity. Inspite of the change carried out by the plaintiff by converting the suit in representative capacity the learned Additional District Judge still proceeded to decide the same as if it had continued to be filed by the said association namely, Jamatul Muslamin which was not registered and the entire approach in concluding that the plaintiff could not maintain the suit as it was converted into, has been erroneous. The very object behind Order I, Rule 8, CPC is to facilitate the decision of questions in which a large body of persons are interested without recourse to the ordinary procedure, where each individual may be required to maintain an action by a separate suit. The condition necessary for its application is that the persons on whose behalf the suit is brought must have the same interest, that is either the interest must be common or they must have a common grievance o the object is to facilitate the decision in which a large number of persons are interested. In the case at hand, the suit which was originally filed by the said association known as Jamatul Muslamin had to be converted into a suit filed in representative capacity on behalf of the Muslim Community of Piligao because the Jamatul was not a registered entity. There is no dispute that the mosque and the grave yard are being maintained by the Muslim Community as the whole of the village Piligao. There was certainly community of interest amongst the numerous persons who formed that community and for whose benefit the suit was filed and it was filed by the President of their unregistered association known as Jamatul Muslamin. It is to be presumed that the requirements of Order I, Rule 8, CPC were complied with before a formal amendment was carried out to the plaint before the learned Additional District Judge. In my view, the suit filed by the President of Jamatul Muslamin on behalf of self and on other members of the Muslim Community of Piligao to protect their property which has a mosque, graveyard, shop etc. for years altogether was certainly maintainable and it is the learned first Appellate Court which fell into error in holding that the plaintiff had no locus standi to file a suit. At the costs of repetition, it may be stated that it is the President of the said Jamatul Muslamin, who had filed the suit for self and other members of the Muslim Community which represents the Muslim Community of Piligao. In the light of the above, both the questions deserve to be answered in the negative. Consequently, the second appeal deserves to succeed and the judgment of the learned first Appellate Court is liable to be disturbed and that of the learned trial Court is to be maintained. Consequently, the suit of the plaintiff shall stand decreed with costs.

       Specific Relief Act, 1963 - Section 39 - Suit for mandatory injunction - Sought for removal of illegal construction - Plaintiff proved their possessory title over suit property - No right shown by defendant over said property subsequent to termination of his licence - Plaintiff entitled to possession. - Possession has a two fold value it is evidence of ownership and is itself a foundation of a right to possession. The plaintiff having has possessory title was entitled to seek all reliefs against the defendant who had claimed no right or title against the plaintiff in respect of the suit property. A mere plea that the defendant was in possession of the stall of 25 years without anything more was not a plea which could defeat in any manner the possessory the title claimed by the plaintiff. In my opinion, therefore, in the absence of any claim made by the defendant to occupy the property in possession of the plaintiff, the plaintiff on the basis of their possessory title were entitled to succeed in the suit. It was abundantly proved by the plaintiff through their witnesses that in the year 1972 the defendant had a gada in the neighbouring property of one Professor Rebello, who directed the defendant to remove the said gada and the defendant having approached the President of the plaintiff, the defendant was allowed to keep his gada on the land of the plaintiff, on condition that he would not disturb the peace of the plaintiffs Devasthan but thereafter the defendant extended the said gada and when in the year 1986 the plaintiff requested the defendant to remove the said gada instead of removing it, extended it further. It is obvious that the defendant had no right to continue with the said gada upon the property in possession of the plaintiff against the wishes of the plaintiff and, therefore the plaintiff had necessarily to succeed in the suit and in my view, the learned trial Court had rightly decreed the suit of the plaintiff after the defendant’s licence to remain with the said gada in the property of the plaintiff was revoked. The plaintiff was not at all required to lead evidence after the suit which was filed in the name of an association which was unregistered was converted into a suit filed in representation capacity on behalf of Muslim Community of Piligao. The suit was converted in that capacity because it could not be filed in the name of an association which had no legal entity. The evidence which the plaintiff had led earlier was not different from which it was required to be led by virtue of the said amendment. In any event the evidence led had to be appreciated in the context of the change of suit in representative capacity and there was nothing in the said evidence which was led earlier which conflicted with the claim of the plaintiff, after the suit was filed in representative capacity. The plaintiff having proved their possessory tide to the suit property and the defendant having set up no right of whatsoever nature to the suit property, the defendant had no right to remain on the suit property after his licence was terminated. The defendant therefore had to be evicted and this was rightly ordered by the trial Court.