1 IN THE HIGH COURT OF JUDICATURE OF BOMBAY, BENCH AT AURANGABAD SECOND APPEAL NO. 730 OF 2003 Bismilla Kha Sahmsherkha Pathan Age : 69 years, Occ : Business, R/o Ilahi Chowk, Nandurbar, Tq. & Dist. Nandurbar. Appellant V/s 1. Mr. & Mrs. Alahj Kazi Chiraguddin Trust, A registered Trust under the Bombay Public Trust Act, vide Registration No.140. 2. Jahiruddin Kamaruddin Kazi Age : 55 years, Occ : Business, R/o Nandurbar (Managing Trustee of above trust). Respondents ------------------------------------------------------------------------------------------------------- Mr. V. D. Hon, Advocate for the Respondent Nos.1 and 2. Mr. Santosh Godse, the Advocate for Respondent. ------------------------------------------------------------------------------------------------------ (CORAM : R.K. DESHPANDE, J.) DATE : 24th September, 2009. ORAL JUDGMENT : 1. This appeal is preferred by the original defendant, who has suffered the decree passed by the Joint Civil Judge, Junior Division, Nandurbar in Regular Civil Suit No.9/1996 holding the plaintiff trust entitled to recover the possession of open space in C.T.S. No.2405 by removing the shed from the open space admeasuring 48 X 20 feet. The 2 Trial Court has further issued mandatory injunction directing the appellant-defendant to remove the shed situated in survey no.2405 admeasuring 15 X 20 Ft. On appeal being preferred by the appellant- defendant, the Appellate Court has dismissed the Civil Appeal No.4/1999 and maintained the decree by its judgment and order dated 07.01.2003 against which, the present second appeal has been preferred. 2. This appeal was admitted on 13.10.2005 and question of law, though not specifically framed, it is discernible from the order dated 13.10.2005 passed, while admitting the appeal. This Court has considered the arguments that the plaintiff has failed to establish his ownership and possession over the suit land and the findings recorded by the Courts below in that respect are perverse. 3. Heard Shri.Satish Godse, the learned Counsel holding for Santosh Godse, the learned Counsel appearing for the Respondent and Shri. V. D. Hon, the learned Counsel appearing for the respondents. 4. It was the suit under section 6 of the Specific Relief Act for recovery of possession by the respondent-orig. plaintiffs. The plaintiffs claimed that, they were lessees of the suit land for a period of 99 years from one Ganjeshahid Peer Trust, Nandurbar since 1983 and they have 3 constructed building and are maintaining the open space where the school activities were going on. The plaintiffs alleged that, some time, in December, 1995, the defendant trespassed open land in question and started construction of shed. According to the plaintiffs, shed was constructed during night of 23rd December, 1995 and the defendants sought to establish their possession over the suit property. Hence the suit was filed for recovery of possession and for mandatory injunction for removal of structure standing on the land in question. 5. The case of the defendant was that, the plaintiff trust did not possess title over the suit property and it is also denied that, the plaintiffs were in possession of the suit land. According to the appellant-defendant, he obtained the permission from the Municipalities on 26.12.1995 and has erected the structure on the disputed land and therefore, same can not be ordered to be demolished by way of mandatory injunction. Several other points were raised in defence including the point regarding the sanction of the Charity Commissioner under section 36 of the Bombay Public Trust Act and also maintainability of the suit. 6. The Trial Court has recorded the finding that, the plaintiffs have failed to prove their valid title over the suit property. However, while dealing with the question of restoration of possession by removing the 4 structure erected by the defendant specific finding has been recorded that, it was the suit under the Specific Relief Act and the plaintiffs are in possession of the suit property since 1983 and were running the school. It was further recorded the finding that, the possession of the plaintiffs was settled possession and the possession of the defendants is stray act. The Trial Court further recorded the finding that, the permission obtained by the defendant on 26.12.1995 was recent one and the plaintiff had filed the suit within a period of limitation of six months. The claim of restoration of possession is under the Specific Relief Act. The Trial Court on the basis of these findings decreed the suit as pointed out earlier. 7. The Appellate Court has also concurrent with the findings of facts recorded by the Trial Court. The Appellate Court has held that, the appellant-defendant has installed his shed unauthorisedly and therefore, he is trespasser. It was further held that, the suit was filed within a period of six months from the date of dispossession and on these findings, the Appeal was dismissed. 8. The Trial Court has relied upon the Judgment of the Apex Court reported in A.I.R. 1968 Supreme Court 1165 (Nair Service Society Ltd., V/s K. C. Alexander and others) to hold that, the plaintiffs need not prove his title to claim relief in suit under section 6 of the Specific Relief 5 Act and what is required, is the fact of dispossession of the plaintiff which is to be established. The suit is held to be filed within a period of six months. The learned Counsel urged that, there is no proof of possession of the plaintiff over the suit property. In my opinion, both the Courts below have after considering the evidence led by both the parties, recorded the findings of fact that the plaintiff was in possession of the suit property. The findings so recorded can not be said to be perverse and mere the fact that, the Courts below have rejected the claim of the plaintiffs regarding the title over the suit property would not disentitle the plaintiffs to claim relief for possession under section 6 of the Specific Relief Act. In my opinion, all the ingredients of section 6 to claim possession and mandatory injunction are satisfied in the present case and the findings by both the Courts below does not call for any interference. There is no substantial question of law which arises out of the Judgments delivered by Courts below. 9. In the result, I do not find any substantial question of law and hence the Appeal stand dismissed. No order as to cost. The interim order, if any, stands vacated. (R.K. DESHPANDE) JUDGE GAS/sa730.03