2302sa505.09.odt 1/8 FARAD CONTINUATION SHEET IN THE HIGH COURT OF JUDICATURE OF BOMBAY BENCH AT NAGPUR SECOND APPEAL NO. 505 OF 2009 Smt. Kamal Wd/o Shamrao Wankhede :: APPELLANT -: Versus :- Raimalbua Sansthan, Akot :: RESPONDENT ------------------------------------------------------------------------------------------------------------------ Mr. S. D. Chopde, Advocate for the appellant. Mrs. Radhika D. Raskar, Advocate for the respondent. ---------------------------------------------------------------------------------------------------------------------------- C ORAM : F. M. REIS, J. DATED : 23rd February, 2010. ORAL ORDER : 1. Heard the learned Counsel for the appellant and the respondent. 2. This appeal challenges the judgment passed by the learned District Judge, Akot in regular civil appeal No. 77 of 2006, whereby the appeal preferred by the appellant challenging the judgment and decree passed by the learned Civil Judge, Junior Division in regular civil suit No. 85 of 2002 on 16/8/2006, came to be dismissed. The respondent has filed the suit on the ground that they are registered trust and owners of the suit property. It is their contention that the husband of the appellant Shamrao Motiram was occupying one room in the suit property belonging to the respondents as he was rendering the services to the trust by performing daily Puja-Archa and also cleaning the premises of the temple. In view of the said services rendered, a license was given to said Shamrao to occupy the room which he 2302sa505.09.odt 2/8 started occupying. The said license was given subject to the terms and conditions that he would not extend the area of occupation or encroach upon the space belonging to the trust. It is further the contention of the respondent that said Shamrao had committed a breach of the condition and encroached upon the space belonging to the respondent. Thereafter, on 02/9/1999 the said Shamrao expired and as such the license stood terminated in view of his death. The appellant was occupying one room in the said property. It is further their contention that the appellant is not in possession of the suit property by virtue of being a tenant. It is further their contention that the occupation of the appellant is unauthorized and illegal, however, the appellant has raised a false contention that she is a tenant. Despite of the request on the part of the respondent, the appellant failed to vacate the suit property and consequently, the suit came to be filed for possession and damages. Thereafter an amendment was carried out to the plaint by the appellant in view of the amendment to the written statement to the effect that the appellant was falsely claiming to be a tenant in the suit property and had also taken a false plea of adverse possession. 3. The appellant filed the written statement and resisted the suit of the respondents. It is her contention that the temple of “Ramkrushna” was the property of deity and under the management and occupation and worship of her great forefathers. The suit room is also the property of the temple premises. It is further the contention of the appellant that she is in possession of the premises as “Wahiwatdar” as per the record of rights. By way of amendment the appellant has contended that she is continuously 2302sa505.09.odt 3/8 managing and looking after the trust property and also performing Puja Archa since forefathers and further contended that such possession of the suit property has been continuous, peaceful and without any obstruction and from her forefathers and as such she has became the owner by way of adverse possession. Consequently, she prayed that the suit deserves to be rejected. 4. The learned trial Judge after framing the issues and recording evidence, partly decreed the suit filed by the respondent and directed the appellant to vacate the suit property and an inquiry was ordered to ascertain the msene profit under Order XX rule 12 of the Code of Civil Procedure. While deciding the suit, the learned trial Judge came to the conclusion that the respondent was the owner of the suit property. The said finding was arrived on the basis of the oral as well as documentary evidence adduced by the respondent. The learned Judge came to the conclusion that initially said Shamrao was occupying one room as a license and the said room was given on the condition that he would render the services to the respondent-trust by performing daily Puja Archa and cleaning work of the premises of the temple. The learned trial Judge further held that the appellant has failed to adduce satisfactory evidence that after the death of Shamrao, a license still continues. The learned Judge further held that after the death of Shamrao the license has come to an end and that the appellant had encroached and errected a structure on the open space of the suit property. The learned Judge as such held that in view of the death of Shamrao, the possession of the appellant become unauthorized and illegal. 2302sa505.09.odt 4/8 The learned Judge rejected the plea of the appellant of adverse possession as she had no knowledge about the owner of the suit property and considering that the possession of the said deceased Shamrao was in permissive possession. The learned Judge also found that the appellant was taking contrary stands and has been unable to establish her contentions. The learned Judge also rejected the contention of the appellant that she was in possession of the suit property as “Wahiwatdar” and consequently decreed the suit filed by the respondent. 5. In the appeal preferred by the appellant before the learned District Judge in regular civil appeal No. 77 of 2006, the appellate Court after appreciating the evidence on record confirm the findings of the learned trial Judge and rejected the plea of adverse possession raised by the appellant. The learned District Judge further held that Shamrao was given a license to occupy the suit premises and in view of his death, the appellant was not entitled to continue in such occupation. As such, the appeal preferred by the appellant came to be dismissed by the judgment dated 10/7/2009. Being aggrieved by the said judgments passed by the Courts below, the present second appeal has been preferred by the appellant. 6. The learned Counsel appearing for the appellant assailed the judgments passed by the Courts below on the ground that the suit itself was not maintainable as one of the trustees who has filed the suit, is not entitled to file the suit as all the trustees had to be parties to the suit of such nature. It is further his contention that the decree passed by the Courts below cannot be sustained as according to the learned Counsel the license given to 2302sa505.09.odt 5/8 the appellant was of open land wherein a permanent structure was constructed by the appellant. It is further his contention that the Courts below had failed to appreciate the evidence on record in proper perspective and as such this Court, in exercise of powers under the provisions of Section 100 of the Code of Civil Procedure, is entitled to set aside such findings as they are perverse. 7. On the other hand, the learned Counsel for the respondent supported the judgments passed by the Courts below and submitted that there is no infirmity of any kind committed by the Courts below while passing the impugned judgments. It is her contention that there is no material on record to establish that any structure of permanent character was put up by the appellant in the suit property. On the contrary, it is her contention that in the plaint itself it is averred by the respondent that one room was given for occupation to the said Shamrao subject to a term that he would render services to perform Puja Archa in the temple. It is further her contention that there is no pleading in the written statement to the effect that the appellant had put up any construction of permanent nature and as such the contention to that extent cannot be advanced before this Court. With regard to the contention of the learned Counsel for the appellant that all the trustees had to file the suit, it is the submission of the learned Counsel for the respondent that a Full Bench judgment of this Court reported at 2010 (1) All M. L. R. 648 in the case of Shyamabai wd/o Surajkaran Joshi & others Vs. Madan Mohan Mandir Sanstha has held that Section 47 of the Indian Trusts Act does not limit the powers of the Board of Trustees to 2302sa505.09.odt 6/8 delegate their powers in regard to institution of suit for recovery of the trust property to one of their colleagues. She has further contended that in para 2 of the plaint it is pleaded that; Mr. Ramdas Onkarrao Mehere, who is President and also managing trustee of the trust, is authorized to conduct the matter on behalf of the trust. It is further her contention that concurrent findings of fact arrived at by the Courts below cannot be interfered with by this Court under Section 100 of the Code of Civil Procedure as no substantial question of law arises in the present appeal. 8. Upon hearing the learned Counsel for the respective parties and on perusal of the record, I find that the Courts below, after examining the evidence on record and the documents produced by the parties, came to the conclusion that the deceased Shamrao was a licensee who was allowed to occupy some premises in the property of the respondent on the condition that he would render some services to the temple. After the death of the said Shamrao, no rights inherit to the present appellant to continue to occupy the said premises and as such her occupation is unauthorized. The occupation of the premises in lieu of rendering services to the temple is a permissive occupation which got terminated upon his death. This finding of fact arrived at after examining the material on record cannot be interfered with by this Court in the second appeal. No perversity has been pointed out by the learned Counsel for the appellant in the said findings of the Courts below which would call for interference by this Court under Section 100 of the Code of Civil Procedure. 9. With regard the contention of the learned Counsel that the license 2302sa505.09.odt 7/8 was of open land wherein a permanent structure was allowed to be put up by the respondent, I find on perusal of the written statement that no pleadings to that effect have been made by the appellant in the written statement. There is no averment that any permanent structure was put up by the appellant pursuant to any license granted by the respondent. The Courts below have examined the said aspect and came to the conclusion that the appellant is not entitled for any relief on that count. The learned Counsel for the appellant was trying to point out some admission to that effect by the witnesses of respondent. In any event, this Court, in a second appeal, cannot re-appreciate the evidence to come to any contrary conclusion. Admittedly there is no foundation to that effect laid down by the appellant in the written statement and as such the appellant is not entitled to raise the plea that the license was of open land for putting up a permanent construction. The plaint at para 3 itself discloses that one room was given for occupation to the said Shamrao. This fact has also not been disputed by the appellant in the written statement. As such the contention of the learned Counsel for the appellant is to be rejected. 10. With regard to the next contention of the learned Counsel that one trustee cannot file the suit, in view of the Full Bench decision of this Court referred to above, it is evident that one trustee with authorization of other co-trustees is entitled to file the suit. The learned Counsel for the appellant submitted that such authorization has not been produced by the respondent. However, on minute examination of the written statement, I find that para 2 of the plaint has not been specifically denied by the appellant. There was 2302sa505.09.odt 8/8 only an evasive allegation that all the trustees had to file the suit for recovery of the possession. This contention of the appellant has to be negatived in view of the judgment of the Full Bench of this Court which categorically held that one of the co-trustees is entitled to file a suit with authorization of other trustees. In view of the above, there is no substance in the contention of the learned Counsel for the appellant that the suit is not maintainable. 11. There is no infirmity in the findings of the Courts below. The learned Counsel for the appellant was unable to point out any perversity in the findings of the Courts below. The evidence adduced by the parties has been appreciated in a proper perspective. 12. In the facts and circumstances of the case, I find that there is no substantial question of law which arises to be considered in the present second appeal and as such the above appeal stands summarily dismissed. JUDGE wwl