1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY BENCH AT AURANGABAD. CIVIL REVISION APPLICATION No. 238 OF 2002 Pandurang Sakharam Patil, age 33 years, Occu. Business, R/o H.No. 2-11-507, Behind Tarodekar Bhaji Market, Vazirabad, Nanded ...APPLICANT VERSUS Nanded Parsi Anjuman Trust, Nanded Regsn No. P.O.F. 161 Dt. 15.5.1971, Through it’s Secretary, Kersis S/o Minuji Shroff, Age 55 years, Occu. Business, R/o Umri, Tq. Umri, District Nanded. ..RESPONDENT ... Mr.P.V. Mandlik, Sr. Counsel for petitioner Mr.S.V. Warad, Advocate for respondent CORAM :- S.S. SHINDE, J. JUDGEMENT RESERVED ON : 15th September, 2010 JUDGMENT PRONOUNCED ON : 13th October, 2010 JUDGMENT: Heard Learned Senior Counsel appearing for the Revision Applicant and learned Counsel appearing for the respondent. 2. This Civil Revision Application is filed, challenging the Judgment and Order dated 3rd December, 2 2001, passed by the 2nd Additional District Judge, Nanded, in Misc. Civil Appeal No. 58 of 2001, arising out of order dated 16th April, 2001 passed by the learned Jt. Civil Judge, Senior Division, Nanded in Regular Civil Suit No. 209 of 2001. The revision applicant is original defendant and respondent herein is original plaintiff in Regular Civil Suit No. 209 of 2001, for the sake of brevity the applicant herein will be referred as Defendant and respondent herein refer as plaintiff. 3. The plaintiffs i.e. present respondent herein, filed a suit for perpetual perpetual injunction restraining the defendant from interfering and obstructing the peaceful possession of the plaintiff over the second floor of shopping complex on the property bearing C.T.S. No. 3312 situated at Vazirabad Nanded. The plaintiff contended that the said plot is owned by the plaintiff. The plaintiff is a charitable institution running projects like Blood Bank, Dispensary etc. To have financial support the plaintiff sold some portion of land along with incomplete structure thereon to the defendant on 19th April, 2000 by way of registered sale deed. At the 3 time of said sale-deed, the defendant has executed an agreement in favour of the plaintiff by which, he agreed that the premises of entire second floor of the property shall be in possession of the plaintiff, and plaintiff shall be owner of the same. However, thereafter, there was dispute between the plaintiff and defendant on the count of un-realization of the cheques issued by the defendant for the consideration amount and further, for encroaching upon some part of the property owned by the plaintiff. The Plaintiff further contended that on 19th March, 2001, the defendant has issued a notice to hand over possession of second floor to him. Thereafter, on 23rd March, 2001, the defendant along with some vagabonds came in the premises and tried to dispossess the plaintiff. The attempt was not successful, as the watchman of the plaintiff obstructed it. Therefore, the plaintiff filed suit for injunction, in which plaintiff has filed application for temporary injunction. 4. The defendant, by say (Exh. 13), resisted the application for temporary injunction contending that 4 the suit premises are not at all in possession of the plaintiff, but are in possession of the defendant. The suit itself is not maintainable because of permission as per Section 50 of the Bombay Public Trust Act is not obtained. By way of agreement, the plaintiff had agreed to put the defendant in possession of an area admeasuring 2100 Sq. feet. However, the plaintiff has put an area of about 1700 Sq. feet in possession of the defendant. Thus, plaintiff is avoiding to put the defendant in possession of remaining area. Therefore, defendant prayed for dismissal of application. The Trial Court after hearing the parties held that the suit is not maintainable in the Court of Civil Judge Junior Division. The plaint was returned to the plaintiff for presentation of it in proper Court. The said order is challenged by the original plaintiff before the 2nd Additional District Judge, Nanded. 5. The 2nd Additional District Judge, Nanded, heard both the parties and in para No. 7 of its Judgment framed main point for determinations, that, “ Whether the suit, without permission under Section 50 of the Bombay Public Trust Act is maintainable in 5 the Court of Civil Judge, Junior Division?” and held that the suit without permission under Section 50 of Bombay Public Trust Act is maintainable in the Court of Civil Judge Junior Division. While allowing the appeal, the Appellate Court considered the scope of Section 50 of the Bombay Public Trust Act, in para No. 8 of its Judgment. The Appellate Court recorded the finding that so far second floor of the suit property is concerned, the original defendant is not in possession of the second floor, as he has admitted in the agreement that the ownership of the second floor would vest in the plaintiff. Therefore, the defendant can be called as “trespasser”. The Appellate Court allowed the appeal, and order passed by the Trial Court was set aside, and Trial Court was directed to decide the application (Exh. 5) on merits, as the suit is maintainable in his Court. This Judgment and Order passed by the Appellate Court is under challenged in this Civil Revision Application. 6. The learned Senior Counsel for the revision applicant, submitted that the suit of the plaintiff without the permission from Charity Commissioner as per Section 50 of the Bombay Public Trust Act was not 6 maintainable. It is further submitted that the defendant is in possession of the second floor on the basis of registered sale-deed of the suit land. The defendant asked the plaintiff to relinquished her right to second floor, and the Courts mis-read this contention and given a wrong finding to that effect. It is further submitted that since the second floor was being constructed through defendant, the defendant is in possession of the same on the basis of registered sale-deed of the suit land. It is further submitted that the Trial Court mis-interpreted the provisions of Section 2 (4) of the Bombay Public Trust Act. The learned Senior Counsel invited my attention to the provisions of Section 50 of the Bombay Public Trust Act and submitted that the plaintiff is a Trust and defendant is a beneficiary on the basis of documents on record including sale-deed and plaintiff wanted to file a suit for injunction against him. Therefore, considering the provisions of Section 50 of the Bombay Provisions Act, 1950, suit of plaintiff was not maintainable. The learned Counsel further submitted that the plaintiff has accepted the position that as per agreement 2100 Sq.feet was sold to the defendant and only 1600 Sq. feet area was handed over 7 to the defendant. The learned Senior Counsel further submitted that by virtue of agreement some area of the property is in possession of the defendant and second floor is being constructed through defendant, it cannot be said that the defendant is a ‘trespasser’. Therefore, finding recorded by the Appellate Court that the defendant is a ‘trespasser’ is perverse finding. The learned Sr. Counsel invited my attention to Section 50 of the Bombay Public Trust Act and submitted that as per clause ‘p’ of the said Section the defendant is beneficiary and if plaintiff wanted to file the suit against the defendant, in that case permission of Charity Commissioner is must. At the cost of repetition the learned Counsel submitted that the defendant by virtue of agreement is in possession of the property and he cannot be ‘trespasser’ for the suit property. It is further submitted that the defendant is an interested person and is in possession of the second floor. Since he is constructing the said floor cannot be termed as ‘trespasser’ The learned Sr. Counsel further invited my attention to the grounds taken in the Civil Revision Application and also arguments advanced before the Appellate Court and Trial Court on behalf of the defendant and submitted 8 that the Judgment and Order passed by the Trial Court deserves to be confirmed by dismissing or setting aside the order passed by the Appellate Court. The learned Sr. Counsel placed reliance on the reported Judgment of the Hon’ble Supreme court in the case of “Shree Gollaleshwar Dev and Others V/s. Gangawwa Kom Shantayya Math and others, reported in AIR S.C. 231”, and submitted that, in view of the said Judgment trustees are the persons having interests. There is no justification to exclude the suit brought by two or more trustees from the preview of Section 50 of the Bombay Public Trust Act. Therefore, the suit can be filed by the Trustees only after obtaining the permission from the Charity Commissioner and it should be presented before the proper Court as defined in the Bombay Public Trust Act. Therefore, he prays that Civil Revision Application deserves to be allowed. 7. On the other hand, learned Counsel appearing for the respondent placed reliance on the reasonings given by the Appellate Court and submitted that the Appellate Court has given finding of facts that the original defendant is a ‘trespasser’, and therefore, said finding cannot be disturbed in revisional 9 jurisdiction. He further submitted that the Appellate Court taking into consideration various pronouncements of this Court and also scope of Section 50 of the Bombay Public Trust Act, has rightly held that the trustees are the legal owner of the property and enjoys all the rights inherent in a natural owner of property and can sue to recover trust property. Section 50 cannot apply as a bar to the substantive right of the trustee to institute suit. The learned Counsel also invited my attention to the contents of agreement and submitted that admittedly agreement provides that the original plaintiff will be owner of the second floor and defendant will have no right on second floor. Therefore, so far second floor is concerned, the original defendant is trespasser and he tried to threaten the plaintiff to take possession of the second floor and for that purpose defendant employed some vagabonds and therefore, plaintiff was constrained to file suit against the defendant. The learned Counsel in support of his contention placed reliance on the following Judgments of this Court 1] Vidarbha Keshatriya Mali Shishan Sansta by its president Shri Wasudeorao Dattaji Sonar V/s. Mahatma Fuley Shikshan Samiti Amravati through 10 its president Ruprao Bhimrao Yewale, reported in 1986, Mh.L.J. 773 2] Gafoor Ali Hussain & others V/s Ram Mahadik & others, reported in 2000(1) Mh.L.J. 436” in case of “Shree Bhairvanath Devsthan trust, though its trustee and priest and Others V/s. Bajba Nathu Pathare & others, reported in 2000(1) Bom.C.R. 426” 3] Amirchand Tulsiram Gupta & others V/s. Vasant Dhanaji Patil & others, reported in 1992 Mh.L.J.275” The learned Counsel submitted that Civil Revision Application is devoid of any merits and same deserves to be dismissed. 8. I have given due consideration to the submissions by the Counsel appearing for the parties, careful perused the grounds taken in the Civil Revision Application, annexures thereto, record made available for the perusal, and also the provisions of Section 50 of the Bombay Public Trust Act, various 11 pronouncements of the Apex Court and also by this Court, and I am of the opinion that the findings recorded by the Appellate Court are in consonance with the material brought on record and provisions of Bombay Public Trust Act, 1950. The Appellate Court has given correct interpretation to Section 50 of the Bombay Public Trust Act, and relying on various Judgments of this Court concluded that the trustees can file suit before the Civil Court like any other owner of the property, without seeking permission of the Charity Commissioner. 9. The terms of agreement will clearly show that it was agreed between the parties, that the second floor will remain in possession of the plaintiff trust and defendant will have no any right over the second floor. The Appellate Court has recorded clear finding in para No. 8 of the Judgment that the defendant can be called as ‘trespasser’ in respect of the second floor of the suit property. The Appellate Court has dealt with the terms of the agreement in para No. 8, and recorded the finding that, if the defendant threatens the plaintiff to hand over possession of the second floor, though it was 12 agreed between the parties that the second floor will be in exclusive possession of the plaintiff and defendant will have no any right on the second floor, therefore, if the defendant threatens the plaintiff to hand over possession of the second floor, it will be threat by third party, therefore, the defendant can be called as ‘trespasser’. Therefore, in my opinion, once the finding of facts is recorded by the Appellate Court that the defendant can be called as a ‘trespasser’, so far second floor of the suit property is concerned, in that case in revisional jurisdiction it is not possible to upset the said finding recorded by the Appellate Court, since said finding is not perverse. 10. The important aspect of the matter is that whether the trustees of the Trust can file suit without permission of the Charity Commissioner before the Civil Judge Junior Division? This controversy is no more res-integra, and same is answered by various pronouncements of this Court. In a case of “Amirchand Tulsiram Gupta & others V/s. Vasant Dhanaji Patil & others” cited supra 13 and this Court held thus : “The trustee is the legal owner of the property and enjoys all the rights inherent in a natural owner of property and can sue to recover trust property. Section 50 cannot apply as a bar to the substantiative right of the trustee to institute suit . No permission under Section 51 is necessary in such a case. The amendment effected by Act No. 20 of 1971 as to include ‘trustee’ while defining in Section 2(10) the expression “person having interest” has no effect on the position of law as above” (emphasis supplied). The learned Division Bench while deciding the afore mentioned case, has placed reliance on the various pronouncements of the Hon’ble Apex Court as well as of this Court. In para No. 7, the learned Division Bench has considered the decision reported in a case of Shree Gollaleshwar Dev and Others V/s. Gangawwa Kom Shantayya Math and others, and held that, the Supreme Court accepted the view taken by the Division Bench of this Court that the right of a 14 trustee to bring a suit in the usual way, i.e. in exercise of rights under the common Law is not affected by provisions of Section 50 of the Bombay Public Trust Act. This Court has followed the Judgment of the learned Division Bench in case of Amirchand Tulsiram Gupta & others V/s. Vasant Dhanaji Patil & others” cited supra in various subsequent pronouncements. The learned Single Judge of this Court in case of “Gafoor Alihussain & others V/s. Ram Mahadik & others”cited supra held that suit filed by trustees of public charitable trust for eviction of trespasser from its property and recovery of possession, no permission of Charity Commissioner necessary. The similar view is taken by this Court in a case of “Shree Bhairvanath Devsthan trust, through its trustee and priest and Others V/s. Bajba Nathu Pathare & others,cited supra. Therefore, taking into consideration various pronouncements of this Court, it will have to be held that the suit filed by the trustees of the respondent Trust before the Civil Judge, Junior Division, Nanded was maintainable. As held by this Court in various pronouncements, it was not necessary for the trustees 15 to obtain permission from the Charity Commissioner for filing the suit. As already stated, the Appellate Court has recorded the finding, so far second floor of the property is concerned, the original defendant can be trespasser. The Appellate Court has also noted the fact that the defendant threaten to the plaintiff to hand over the possession of second floor to the defendant, inspite of the agreement between the parties that, the second floor will be in possession of the plaintiff and defendant will have no any right whatsoever on the second floor, and therefore, the Appellate Court has taken correct view in the matter, keeping in mind the various pronouncements of this Court that the trustees of the trust like any other owner can file suit and no permission of the Charity Commissioner is necessary. In view of the above, keeping in mind the scope of revision, I am of the considered opinion, that the finding recorded by the Appellate Court and interpretation given to section 50 of the Bombay Public Trust Act needs no interference. Hence, the Civil Revision Application is devoid of any merits same stands dismissed. Rule stands discharged, interim relief stands vacated. The original record, if any be sent back to the concerned Court. 16 In view of the dismissal of the Civil Revision Application, Civil Application, if any stands disposed of accordingly. [S.S. SHINDE, J] SDM*238.02 CRA