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In the High Court of Bombay at Nagpur
S.B. SHUKRE, J.
Namdeo
Versus
Shahi Gupta Masjid Chandrapur & Others
Second Appeal No. 180 of 1995
Decided on : 18-11-2013
Bombay Public Trust Act, 1950 - Section 50 - Civil Procedure Code, Order XIV, Rule 1 - Suit filed by Trust. - Held, since objection about tenability of suit by trust goes to root of matter hence defendant can agitate said issue even in second appeal. 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 plaintiff-trust 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, even though 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.
Maharashtra Land Revenue Code, 1966 - Section 157 - Presumptive value of revenue records. - Document of maintenance khasra being relevant for collection of land revenue, cannot be taken as document of title as it can be used for ascertaining possession. - Maintenance Khasra vide Exhibit-30 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.
It is of course a different matter that both these documents even do not show possession of plaintiff-trust over the suit-land, which is evident from the reasoning of order at Exhibit-40 and it’s operative part. The document is founded upon the order. So, both these documents do not show possession of plaintiff-trust 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.
Having examined the question as regards nature of the documents from every possible angle, Court is of the view that they are not at all the documents of title and they do not confer any title to the suit-land on the plaintiff-trust. 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.
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 plaintiff trust.
4. It was the contention of the plaintiff-trust 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 “suit-land” for convenience. The plaintiff-trust 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 plaintiff-trust, the plaintiff-trust 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 plaintiff-trust, did not pay heed and, therefore, the plaintiff-trust filed a suit against the defendant for removal of encroachment, possession and permanent injunction restraining him from encroaching upon the land belonging to the plaintiff-trust. The suit was filed, as said earlier, by secretary and one trustee on behalf of the plaintiff-trust, 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 plaintiff-trust. 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 plaintiff-trust 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 plaintiff-trust 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 plaintiff-trust 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 plaintiff-trust against the said judgment and decree, the first appellate Court reversed these findings of the trial Court and fou
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