S.A.No.197 of 2008 1 IN THE HIGH COURT OF JUDICATURE AT BOMBAY NAGPUR BENCH, NAGPUR SECOND APPEAL NO.197 OF 2008 1. Shri Koteshwar Deosthan, Nagardhan, through its President Shri Suresh Karanji Dhopte, r/o. Nagardhan, Tq. Ramtek, Distt. Nagpur. 2. Narayan s/o. Ganpat Parate, Aged 51 yrs., Occ. Retd., r/o. Nagardhan, Tq. Ramtek, Distt. Nagpur. 3. Rupchand s/o. Laxman Ninawe, Aged 46 yrs., Occ. Private, r/o. Nagardhan, Tq. Ramtek, Dist. Nagpur. 4. Shankar s/o. Lahanuji Kamdi, Aged 70 yrs., Occ. Private, r/o. Nagardhan, Tq. Ramtek, Distt. Nagpur. 5. Suresh Karanji Dhopte, Aged 45 yrs., Occ. Private, r/o. Nagardhan, Tq. Ramtek, Dist. Nagpur. .......... APPELLANTS // VERSUS // 1 (a) Smt. Kamalabai wd/o. Kamalsingh Khangar, Aged about 55 yrs, Occ. Private. S.A.No.197 of 2008 2 1 (b) Nilesh s/o. Kamalsingh Khangar, Aged about 20 yrs. Occ. Private, 1 (c) Rajeshsingh s/o. Kamalsingh Khangar, Aged 20 yrs., Occ.Private. 1 (d) Ku. Ritu d/o. Kamalsingh Khangar, Aged about 14 yrs., Minor through Guardian mother Smt. Kamalbai Applicant No.1(a)(b)(c)(d) are r/o. mouza Nagardhan, Tq. Ramtek, Dist. Nagpur. 1 (e) Smt. Munnibai w/o. Chandrapalsingh Thakur, Aged about 32 yrs., at Tumsar, Dist. Bhandara. 1 (f) Smt. Rekhabai w/o. Surendrasingh Thakur, Aged about 29 yrs., Occ. Private, r/o. Tumsar, Dist. Bhandara. 1 (g) Smt. Ratnabai w/o. Satishsingh Thakur, Aged about 27 yrs., at Gondia, Civil Lines, Tq. Gondia, Dist. Gondia. All above non-applicants are the legal representatives of Kamalsingh s/o. Narayansingh Khangar. 2. Harpalsingh s/o. Lakshmansingh Khangar, Aged about 35 yrs., Occ. Agrilst. 3. Angadsingh s/o. Laxmansingh Khangar, Aged about 30 yrs., Occ. Cultivator. 4. Smt. Pushpabai w/o. Pratapsingh Thakur, Aged about 28 yrs., Occ. Cultivator. S.A.No.197 of 2008 3 5. Rameshsingh s/o. Laxmansingh Khangar, Aged about 40 yrs., Occ. Cultivator. 6. Shivcharansingh s/o. Laxmansingh Chaudhary, Aged about 41 yrs., Occ. Cultivator. 7. Chandrapalsingh s/o. Laxmansingh Chaudhary, Aged about 35 yrs., Occ. Cultivator. 8. Munnasingh s/o. Laxmansingh Chaudhary, Aged about 30 yrs., Occ. Cultivator. The non-applicant nos. 2 to 8 are r/o. Mouza Nagardhan, Tq.Ramtek, Distt. Nagpur. 9. Dashrath s/o. Chandu Adkine, Aged about 52 yrs., Occ. Agrilst., Ori. defendant no.4, r/o. mouza Nagardhan, Tq. Ramtek, Dist. Nagpur. 10. Namdeo s/o. Laxman Kamdi, Aged 46 yrs., Occ. Private, r/o. Nagardhan, Tq. Ramtek, Dist. Nagpur. ......... RESPONDENTS -------------------------------------------------------------------------------------------------- Mr. Prashant Gode, Adv. for appellants. Mr. Shishir Dongre, Adv. for respondent nos. 2 to 8. -------------------------------------------------------------------------------------------------- CORAM: R. K. DESHPANDE, J. DATE : FEBRUARY 17, 2010. S.A.No.197 of 2008 4 ORAL JUDGMENT : 1. This appeal has been preferred by Shri Koteshwar Deosthan, Nagardhan, a public trust registered under the Bombay Public Trust Act along with the trustees of the said Trust challenging the judgment and order dt. 21.7.2005 passed by the learned 10th Ad-hoc Additional District Judge, Nagpur allowing the appeal and decreeing the suit for possession. The appellants were neither parties to the suit nor were parties in the appeal. However, by an order dt. 23.7.2009, this Court granted the appellants leave to file appeal and hence, the instant appeal has been filed. 2. Respondent Nos. 1 to 8 in this appeal are the Original plaintiffs who had filed Regular Civil Suit No. 208 of 1991 for recovery of possession of the suit land i.e. Survey No.287 of village Nagardhan. In the said suit, 1) Dadba s/o. Gangaram Dharmik, 2) Laxman s/o. Ramaji Ninawe, 3) Pandurang s/o. Tulshiram Narnavre and 4) Dashrath s/o. Chandu Adkine were joined as defendants. The trial Court dismissed the said suit holding that the Koteshwar Deosthan was a public trust and the defendants were put in S.A.No.197 of 2008 5 possession of the property as trustees of the said Trust. It was also dismissed on the ground of non-joinder of necessary parties to the suit and also on the ground that permission of the Charity Commissioner was not obtained. During pendency of the said suit, defendant no.1 Dadba s/o. Gangaram Dharmik and defendant no.2 Laxman s/o. Ramaji Ninave expired. 3. Plaintiffs preferred Regular Civil Appeal No. 256 of 2000 in which the Original defendant nos. 3 and 4 namely Pandurang, s/o. Tulshiram Narnavre and Dashrath s/o. Chandu Adkine were joined as respondents. During the pendency of this RCA No.256/2000, the defendant no.3 also expired. The Appellate Court framed the points of determination. It was held that the appellants are owners of the suit property in their personal capacity and the respondents(Original defendants) were not entitled to remain in possession of the suit property. It was further held that the suit was not bad for non-joinder of Charity Commissioner and the Trust namely Shri Koteshwar Deosthan as party and no permission of the Charity Commissioner was required for filing the suit. Hence, the suit was decreed and the S.A.No.197 of 2008 6 Original defendant no.4 was directed to deliver possession of the suit property to the plaintiffs. Respondents were further restrained from disturbing possession of the appellants over the suit property and an enquiry into mesne profit was also directed to be held. 4. This Second Appeal which has been filed by the Trust Shri Koteshwar Desothan along with its trustees challenging the judgment and decree passed in Regular Civil Appeal No. 256 of 2000 on 21.7.2005 by learned District Judge, Nagpur. It is alleged that the Trust is the owner of the property and in possession of the property and hence, in Regular Civil Appeal No.256 of 2000, the learned Judge of the Appellate Court has committed an error in recording a finding in respect of ownership of the property in favour of plaintiffs. The appellants further urged that the proceedings in respect of enquiry as to whether the property belongs to the Trust or not are pending in appeal before the Joint Charity Commissioner at Nagpur. According to the appellants, the findings recorded in Regular Civil Appeal No.256 of 2000 shall come in the way of the appellants in the proceedings initiated before the Charity Commissioner which are S.A.No.197 of 2008 7 pending in the appeal. Mr. Prashant Gode, Adv. appearing for the appellants has urged that the suit was liable to be dismissed for non- joinder of necessary parties as the appellant/Trust is claiming ownership of the property and was not joined. He further argues that the suit was also barred by the provisions of Section 80 of the Bombay Public Trusts Act, 1950 and it was also liable to be dismissed for not obtaining requisite permission of the Charity Commissioner. 5. The question whether the appellants were necessary party to the suit or not was raised before the trial Court as well as before the Appellate Court. The Appellate Court has recorded a finding that the Trust was not a necessary party in the suit. Similarly, the point regarding obtaining of permission of the Charity Commissioner, the finding given by the Appellate Court is that no such permission is required. There is no question of law, much less substantial question of law which arises out of said finding recorded. 6. So far as the finding regarding ownership of the suit property S.A.No.197 of 2008 8 recorded by the Appellate Court in favour of plaintiffs is concerned, same has been recorded in a suit filed simplicitor for possession of the property. It is not in dispute that the suit property is not included in Schedule I of PTR register as the property of the trust and the proceedings for its inclusion are pending in appeal before the Joint Charity Commissioner at Nagpur and the plaintiffs are party to it. In para 23 of the Judgment of Appellate Court, a finding is recorded that possession of respondent/defendant over the suit tank since 1968 was not in the capacity as a trustee of the said trust. Be that as it may, neither the Trust nor the Trustees of the said Trust were joined as parties/defendants in the suit or in the appeal. It is now well settled that the plaintiff is a dominis litis and it is for him to decide to whom he should join as party to the suit and against whom, he should claim relief. If the plaintiff has not chosen to join the Trust or the Trustees as parties to the suit or even in the appeal and to claim title against or possession from any of them, certainly, any finding recorded in such suit or appeal shall not bind the said trust or trustees. In view of this, no grievance can be made by the S.A.No.197 of 2008 9 appellants in this appeal in respect of the said findings recorded by the Appellate Court. 7. So far as the relief of possession is concerned, the decree has been passed against Original defendant nos. 3 and 4. However, during pendency of the appeal, defendant no.3 has also expired and hence, the decree remains against Original defendant no.4. The decree has not been passed against the trustees or trust. In view of this, there is no substantial question of law which arises in this appeal. The Second Appeal is, therefore, dismissed. JUDGE JAISWAL