The court upheld the Trust's title based on evidence and dismissed the claim of adverse possession due to lack of necessary elements.

JUDGMENT

Mangesh S. Patil, J. - This is a second appeal by the original defendants who are facing a decree passed by the lower appellate court holding the respondent No. 1/Public Trust entitled to possession of 3206 square feet described in the plaint, from and out of Municipal House No. 176 , 220 belonging to it.

2. The respondent No. 1/Public Trust claimed that its property comprises of a temple and a dharmashala with open premises. The appellants and the respondent No. 2 who was also arrayed as defendant no. 5 were occupying the suit property illegally and claimed possession. The appellants filed two separate written statements. They admitted that the trust owns the temple, the dharmashala and the surrounding area but denied to have made any encroachment or being in unauthorized occupation of the suit property. They contended that they were in occupation of the suit property since their forefathers for more than 50 to 60 years. The appellants further contended that the then priest of the temple one Virbhadra Swami had permitted their forefathers to occupy the open space near the building of the dharmashala for their residence. They contended that they became owners of the suit property by adverse possession and the suit was barred by limitation.

3. The respondent No. 2 did not appear in the suit in spite of service of summons and it proceeded ex parte against her.

4. Both the sides led evidence. The trial court dismissed the suit. It held that the respondent No. 1/Trust had failed to prove its title and the encroachment. It also recorded a negative finding to the issue formulated in respect of the appellants' claim of adverse possession.

5. Being aggrieved, the respondent No. 1/Trust challenged the judgment and order before the lower appellate court which allowed the appeal, quashed and set aside the judgment of the trial court and decreed the suit.

6. The learned advocate Mr. Shinde for the appellants would submit that the respondent No. 1/Trust had miserably failed to prove its title to the suit property. a well reasoned conclusion drawn by the trial court in this respect was unnecessarily reversed, without there being cogent and convincing reasons. Except the Public Trust Record there was nothing before the courts below to support title of the respondent No. 1/Trust. Though it was a case of alleged encroachment, no separate measurement was carried out. The lower appellate court accepted the rough sketch annexed with the plaint as a gospel truth. The suit was hopelessly barred by limitation. The lower appellate court failed to recognize its powers under Order XLI Rule 33 of the Code of Civil Procedure. The appellants were entitled to, by virtue of that provision, to support the judgment and order passed by the trial court even on the issue regarding adverse possession which was answered by the trial court against them. The lower appellate court illegally refused to permit them to take such a stance on an erroneous ground that they had not preferred any cross objection, when it was not at all required by virtue of that provision. He would submit that the lower appellate court has not decided the appeal strictly in accordance with the directions in the matter of Santosh Hazari vs Purushottam Tiwari (Dead) By L.Rs.; (2001) 3 SCC 179. Substantial questions of law arise for determination by this Court and the second appeal be admitted.

7. Learned advocate Mr. Shinde would, lastly, submit that even a dispute as to maintainability of the suit was raised by the appellants on the ground of want of necessary permission of the Charity Commissioner as contemplated under Section 51 of the Maharashtra Public Trust act (hereinafter 'the act') but even that has been overlooked.

8. The learned advocate for the respondent No. 1/Trust Mr. Tripathi would submit that the respondent No. 1/Trust had filed the suit for possession of the suit property based on title. apart from the conclusive evidence in the form of public trust record showing it to be t