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ALLAHABAD HIGH COURT
BEFORE : MRS. SUNITA AGARWAL, J.
RADHA SHARAN DUBEY AND ANOTHER ....Appellants
Versus
RAM NIWAS AND OTHERS ....Respondents
(First Appeal Nos. 55 of 2008, 448, 472 of 2007, decided on 6th March, 2017)
(B) Code of Civil Procedure, 1908—Order III, Rules 1 and 2—Evidence Act, 1872—Section 118—Power—Attorney holder—Deposition—Cannot be thrown out simply on ground that Principal did not appear and Power of Attorney has no knowledge—Question as to whether Power of Attorney has personal knowledge about matter in controversy is a question to be thrashed out by cross-examining him—Further Power of attorney holder’s oral deposition cannot be ignored for fact of being founder of trustees. [Paras 76 and 79]
(C) Registration Act, 1908—Sections 49, 17—Document—Non-registered—Effect of—Document affecting any immovable property comprised therein and is required to be registered under Section 17 or any provision of Transfer of Property Act, 1882—Can be received as evidence of any transaction affecting such property—However such unregistered document can be received in evidence as a proof of any collateral transaction which is not required to be effected by registered instrument—Passing of title to lessee of land by an instrument cannot be said to be collateral purpose-supplementary or secondary purpose—It is main purpose for which instrument is executed affecting immovable property comprised in said instrument—Therefore as a proof of passing of title in favour of any person such unregistered document cannot be received in evidence. [Paras 113 and 114]
(D) Evidence Act, 1872—Sections 13, 11—Evidence of Proof—Instances with regard to any right or custom—Admissibility—Though are not admissible in evidence as document of proof however are relevant under Section 11. [Para 181]
(E) Code of Civil Procedure, 1908—Section 92—Leave to sue—Public trust—There is no expression of intention of owners to surrender their rights in suit property—As such suit property cannot be said to be vested in public trust—Which has been assigned only right to manage, make repairs and renovation for best management of Dharmshala—Held Section 92 would not be attracted. [Paras 194 and 195]
(F) Injunction—Civil Suit—Adverse Possession—If plaintiff claims possession on basis of title, it is incumbent upon Court to look into documents of title to decide as to whether his possession was legal and he is entitled to injunction against defendants—However after having lost to prove his title, it is not open for same person to claim injunction to continue in possession merely on plea of long continuous possession—As it would not be a case of adverse possession—Adverse possession is a hostile possession against true owner and is contrary to claim of plaintiff being in possession on basis of his title. [Paras 202 and 203]
(G) Specific Relief Act, 1963—Section 38—Permanent injunction—Dispossession—Appellants utterly failed to prove their title to suit property—Their possession over suit property was only permissive possession and they hold property only on behalf of principal owner—Respondents are claiming their right to manage property assigned to them by way of a registered deed—Once registered deed of assignment of managerial rights executed by true owners is proved—Appellants are not entitled to continue in possession of suit property as their possession was only permissive with consent of true owner—Held appellants have no right to continue in possession and entitled to seek injunction merely on plea of long possession or admitted possession over suit property. [Paras 207, 208, 211 and 212]
Result; Order Accordingly.
Hon’ble Mrs. Sunita Agarwal, J.—Heard Sri Anil Sharma and Sri K.M. Garg, learned counsels for the appellants and Sri Ashish Kumar Singh and Sri Ashish Agrawal, learned counsels for the respondents.
2. The First Appeal No. 55 of 2008 (Radha Sharan Dubey and another v. Ram Niwas and others) arises from Original Suit No. 71 of 1992 filed by Radha Sharan Dubey and Shiv Sharan Dubey. The First Appeal No. 448 of 2007 arises out of Original Suit No. 494 of 1992 filed by Registered Trust Maheshwari Kunj Nyas, Govind Ghera Vrindavan, District Mathura through Ghasiram Tapadia as the Secretary of the said Trust and Kishan Lal Tapadia as Power of Attorney Holder of Ghasiram Tapadia. First Appeal No. 472 of 2007 has been filed by Maheshwari Kunj Nyas trust against the judgment in Original Suit No. 71 of 1992 partly decreeing said suit.
In First Appeal No. 448 of 2007, the defendants of Original Suit No. 494 of 1992 have filed their cross objections against the findings on certain issues, recorded in favour of Maheshwari Kunj Trust in the said suit. The delay in filing the cross objections has been condoned and the same has been taken on record by order dated 14.9.2012.
The above referred three connected appeals and the cross-objection have been heard at length and are being decided together by this common judgment.
3. The Original Suit No. 71 of 1992 was instituted by Radha Sharan Dubey and Shiv Sharan Dubey sons of Ganga Prasad Dubey against Sri Ram Niwas son of Girdhari Lal and Sri Venu Gopal sons of Ram Niwas; Kishan Lal Tapadia son of late Chandan Mal Tapadia; Ghasi Ram Tapadia son of Not known. Registered Trust Maheshwari Kunj Nyas through Ghasi Ram Tapadia was impleaded at a later stage. The relief prayed was to grant a decree of permanent injunction restraining the defendants and their authorised representatives from evicting them or interfering in peaceful possession of the plaintiffs from the suit property, described at the foot of the plaint. Another suit namely Original Suit No. 494 of 1992 was filed by registered trust Maheshwari Kunj Nyas, Govind Ghera through Ghasi Ram Tapadia its Secretary and Kishan Lal Tapadia son of Sri Chandan Mal Tapadia as Power of Attorney of the Secretary of the Trust Ghasiram Tapadia. After death of Ghasi Ram Tapadia, Ram Niwas Mundra was substituted as Secretary of the Trust. This suit was filed against Radha Sharan Dubey and Shiv Sharan Dubey sons of Sri Ganga Prasad Dubey. Sri Ram Niwas son of Gridhari Lal and Venu Gopal son of Ram Niwas were impleaded as proforma defendants in the said suit. The relief sought in original suit No. 494 of 1992 was for permanent injunction against defendant Nos. 1 and 2 namely Radha Sharan Dubey and Shiv Sharan Dubey restraining them from interfering in the managerial rights of the plaintiff No. 1, registered Maheshwari Kunj Trust with regard to Dharmshala known as “Seth Tulsi Ram Kishanlal Boob Roll Walon” situated at Mohalla Govinddeo, Vrindawan, District Mathura, description of the boundaries of the suit property has been given at the foot of the plaint. Further relief was sought to restrain the defendants from realizing rent from the tenants of Dharmshala and from interfering in the work undertaken by plaintiff No. 1 for renovation and maintenance of Dharmshala. Further relief was also sought to restrain the defendants from changing the nature of the suit property or destroying it in any manner.
4. These two suits were clubbed together and decided by the District Judge, Aligarh by judgment and order dated 28.9.2007. The Original Suit No. 494 of 1992 was dismissed being barred by Sections 38 and 41 of the Specific Relief Act. Whereas the Original Suit No. 71 of 1992 was allowed partly with the direction that the plaintiffs of the said suit will remain in possession and will manage the suit property, till they are evicted by the defendants through a legal process. However, the plaintiffs of Original Suit No. 71 of 1992 have been directed not to raise any
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