Case: VIJAY PULLARWR  Vs. HANUMAN DEOSTAN

in Circle No.3) is the property of the plaintiff trust. No documentary evidence has been produced by the plaintiffs/respondents to establish the fact that the suit house bearing House No.878 in Circle No.3 originally owned by Haridas Baba was recorded as the property of the plaintiff trust in the official records. The plea taken by the defendants in the written statement, however, is indicative of the fact that they (defendants/appellants) were occupying House No.878 in Circle No.3, which was originally owned by Haridas Baba and where his Padukas had been installed. The written statement as well as the oral evidence of defendants/appellants clearly refute the claim of the plaintiffs/respondents. In that, the trust named as Shri Hanuman Deosthan has been registered in reference to some other properties and for performing puja with the object of maintaining Hanuman Deosthan temple in House No.55 in Circle No.3. We also find that the High Court has selectively adverted to portion of the written statement [sub-paras (b) to (d) of paragraph 11 thereof] and not to the other portion of the same paragraph, namely sub-paras (e) to (g) (reproduced in paragraph 9 hereinabove) which put across the stand of the defendants/appellants including that the plaintiff trust has no causal connection with the suit house bearing No.878 in Circle No.3. 29. Needless to observe that the plaintiffs/respondents were primarily obliged to establish their title in the suit house bearing No.878 in Circle No.3 where the Padukas of Saint Haridas Baba have been installed, as being the property of the plaintiff trust. The plaintiffs must succeed or fail on the title they establish; and if they fail to do so, they must fail to get the relief of possession irrespective of title of the defendant in the suit property (See Brahma Nand Puri Vs. Naki Puri (1965) 2 SCR 233 and Bajaranglal Shivchandrai Ruia Vs. Shashikant N. Ruia and Ors. (2004) 5 SCC 272 ). In the present case, no tangible evidence regarding title of plaintiff trust in the suit house (House No.878 in Circle No.3) is forthcoming. 30. The High Court has also adverted to the so-called admission given by DW-1 Vijay, noted in paragraph No.12 of the impugned judgment. In our opinion, the High Court has completely misread the said admission. Inasmuch as, all it says is that the house number had changed every four years after revaluation. Further, the suit house is in Circle No.3. This is spoken by the witness (DW1), in response to the question posed to him about the change of Circle. He then admits that since 1910, the suit house was owned by Haridas Bairagi. We fail to understand as to how this admission can be of any avail to the plaintiffs much less to hold that the plaintiff trust has title in the suit house bearing House No.878 in Circle No.3. 31. Much ado was made about the contents of a communication sent by defendant No.1 to the Mayor of Nagpur Municipal Corporation (Exh.75). The same reads thus:Exhibit-75 To, The Mayor, Nagpur Municipal Corporation Wasudeorao Maniramji Pullarwar, Occupier Baba Haridasji Math, House No.152, Ward No.6 New Ward No.16, S. No.03, New Shukrawari, Fawara Chowk, Medical Road, Nagpur. …..Applicant Subject: Objection to mutation on house No.152, Ward No.16 circle No.03, New SShukrawari, Fawara Chowk, Medical Road, Nagpur. Sir, With respect, it submitted that house no.152, Ward No.16 New Shukrawari Nagpur is recorded in the name of Baba Haridas Math in the Nagpur Municipal Corporation assessment register for the last 70 years. The applicant is the disciple of Baba Haridas for the last 60 years and is in possession and occupation of it for last 30 years. He is looking after the Math and performing pooja/ustsav on yearly basis (yearly Utsav). I am paying the taxes of the said math for the last 30 years as occupier and user. The receipts to that effect are with me. The demand bill for the year 1978- 79 for taxes is given to the applicant. From that it has come to the knowledge of the applicant that the said house is recorded in the name of ?Shri Hanuman Deosthan Trust?. Then it is mentioned that the said change is as per the decision of Learned Charity Commissioner, Mumbai dated 4.4.1975 and the same is recorded on 15.7.1976 in the name of Hanuman Deosthan Trust. However, in the office or register of Charity Commissioner, Mumbai or Deputy Charity Commissioner, Nagpur dated 4.4.1975, there is no reference/mention about Shri Haridas Baba Math, House No.152, Ward No.16, Circle No.3, New Shukrawari, Nagpur nor there is any reference in the copy received by me. Hence, the Hanuman Deosthan Trust has got the name changed from Haridas Baba Math to Hanuman Deosthan Trust by keeping the tax department in the dark, fraudulently. The change is recorded by the assessment department of the Nagpur Municipal Corporation without consulting or asking the applicant. The said change is not acceptable to the applicant. Hence, the original name of Baba Haridas Math should be maintained. Accordingly, the applicant is ready to pay the taxes as earlier. Also the Hanuman Deosthan Trust has got the change done by keeping the Corporation in the dark. It has no relation with the math. Hence, the name of the said Trust be removed and original name of Baba Haridas Math be maintained. The applicant be given opportunity to produce his documents and say before yourself. Nagpur Dated: 17.3.1980 Sd/-Wasudeo Pullarwar Applicant?We fail to understand as to how this communication can be used as an admission of the defendants much less of having accepted the title of the plaintiff trust in the suit House No.878 (renumbered as House No.152), in Circle No.3. On the other hand, it is a representation made to assail the unilateral alteration of mutation entry in favour of Shri Hanuman Deosthan Trust in violation of principles natural justice. 32. Suffice it to observe that even the second substantial question of law must be answered against the plaintiffs and in favour of the defendants/appellants.

Decision (1 = appeal accepted, 0 = rejected): 0

Explanation:
0[ds]Indubitably, the present suit is a suit for recovery of possession of the subject property on the basis of title claimed therein by the plaintiffs/respondents and being a property of the trust. However, the procedure envisaged under Sections 50 and 51, obviously, has not been complied with. For, such permission has not been produced nor adverted to by the courts below.Be that as it may, as the plaintiffs/respondents have claimed title in the suit property, that claim could be answered on the basis of the registration application of the trust, and schedule I regarding the registered properties of the trust. Whether the property is a property of the trust and including the question as to whether it should be so recorded as the property of the trust, is a matter exclusively within the domain of the Charity Commissioner.In the present case, the registration application preferred by Chotelal unambiguously records House No.55 in Circle No.3 as being used for performing pujas in the temple. The temple name is mentioned as Shri Hanuman Deosthan. There is no reference in the application or in schedule I recording the properties of the stated public trust to include the ?Padukas of Haridas Baba? installed in House No.878 in Circle No.3. Concededly, no evidence is forthcoming to show that Hanuman Temple exists in House No.878 in Circle No.3which is inpossession of the defendants/appellants.Suffice it to observe that the application for registration of the public trust submitted by Chotelal on 31 st August, 1953 (Exh.63), the subsequent application for registration submitted by him under the provisions of the 1950 Act dated 13 th September, 1961 (Exh.64), the schedule I recording properties of the plaintiff public trust (Exh.43), the enquiry report dated 13 th October, 1954 (Exh.42), and the application for framing of the scheme and the order passed by the Charity Commissioner dated 4 th April, 1975 (Exh.46), none of these document mention about ?Padukas of Haridas Baba? installed in House No.878 or refer to House No.878 in Circle No.3 being the trust property; but instead, make specific reference to House No.55 in Circle No.3, which is a completely different property. Notably, these documents also do not advert to the document dated 23 rd May, 1946 (Exh.41), purportedly executed by Smt. Yashodabai allegedly creating a Panch Committee in respect of the suit House No.878 in Circle No.3. The finding of fact recorded by the First Appellate Court regarding the two properties and, more particularly, analysis in paragraphs 11 & 12 of its judgment (reproduced in paragraph No. 12 herein above), have been brushed aside by the High Court on the specious asumption that it is a case ofof the property in the official register of public trust. That, however, was not the case pleaded much less proved by the plaintiffs/respondents. Such finding recorded by the High Court is a case of manifest error or error apparent, if not perverse. The High Court could not have disregarded the registration application and the description of the house number given in schedule I as the registered property of the public trust, which is House No.55 in Circle No.3. It was for the plaintiffs/respondents to plead and prove that House No.55 shown in schedule I as property of the plaintiff trust is the same as House No.878 in Circle No.3, which description has been given in the plaint as the suit house. Having failed to establish that fact, no fault can be found with the finding recorded by the First Appellate Court, that Shri Hanuman Deosthan, a public trust, had no causal connection with House No.878 in Circle No.3 occupied by the defendants/appellants. Thus, it must necessarily follow that the suit for possession (of House No.878 in Circle No.3) instituted by the plaintiffs/respondents on the basis of title, was devoid of merits.We have no hesitation in upholding the finding of fact recorded by the First Appellate Court that the suit house occupied by the defendants/appellants was recorded in the Municipal records during 1947 to 1950 as House No.878 belonging to Haridas Baba and that number was changed to House No.521 inand converted to House No.152 till the institution of the present suit. Further, it is clear that House No.55 in Circle No.3 is entirely a different property. That has been registered as the trust property of Shri Hanuman Deosthan public trust, initially at the instance of Chotelal and then continued to be shown as a registered property of the plaintiff trust until the institution of the suit. Such registration by the authorities under the 1950 Act would bind the plaintiffs/respondents. The plaintiffs/respondents have not been able to produce any documentary evidence to establish the fact that the suit house (bearing House No.878 in Circle No.3, which later on became House No.152 in Circle No.3 by the time the suit was instituted), was the property of the plaintiff trust. The concomitant of such a conclusion is to dismiss the suit.It is not necessary for us to dilate on every aspect dealt with by the First Appellate Court or for that matter, the High Court, for answering the substantial question of law under consideration. We affirm the conclusion reached by the First Appellate Court that the plaintiff trust had failed to produce any documentary evidence to substantiate the fact that suit House No.878 in Circle No.3 was the registered property of the plaintiff trust and that the registered property of the plaintiff trust bearing House No.55 in Circle No.3, is the same house inpossession of the defendants/appellants.Pertinently, the latter property was not owned by Haridas Baba but belonged to one Ramlal Munnalal Halwai, having a temple of Radhakrishna and Ganpati. Further, the documentary evidence produced by the plaintiffs/respondents would, at best, establish the fact that Shri Hanuman Deosthan has been registered as a public trust and owns the property referred to in schedule I against its name (i.e. House No.55 in Circle No.3). Thus, the property registered as belonging to the plaintiff trust was other than suit house bearing No.878 in Circle No.3. For all these reasons, the First Appellate Court was justified in answering the principal issue against the plaintiff trust.That takes us to the second substantial question of law formulated by the High Court for its consideration. The High Court has adverted to the relevant portion of the written statement to conclude that the defendants/appellants had admitted that the suit property was originally owned by Haridas Baba and that they were in possession in the capacity of caretakers only. Indeed, that admission can be discerned from the written statement of the defendants as well as the oral evidence ofBut that admission does not take the matter any further. It is not possible to assume on the basis of that admission that the ?suit house? (i.e. House No.878 in Circle No.3) is the property of the plaintiff trust. No documentary evidence has been produced by the plaintiffs/respondents to establish the fact that the suit house bearing House No.878 in Circle No.3 originally owned by Haridas Baba was recorded as the property of the plaintiff trust in the official records. The plea taken by the defendants in the written statement, however, is indicative of the fact that they (defendants/appellants) were occupying House No.878 in Circle No.3, which was originally owned by Haridas Baba and where his Padukas had been installed. The written statement as well as the oral evidence of defendants/appellants clearly refute the claim of the plaintiffs/respondents. In that, the trust named as Shri Hanuman Deosthan has been registered in reference to some other properties and for performing puja with the object of maintaining Hanuman Deosthan temple in House No.55 in Circle No.3. We also find that the High Court has selectively adverted to portion of the written statement(b) to (d) of paragraph 11 thereof] and not to the other portion of the same paragraph, namely(e) to (g) (reproduced in paragraph 9 hereinabove) which put across the stand of the defendants/appellants including that the plaintiff trust has no causal connection with the suit house bearing No.878 in Circle No.3.Needless to observe that the plaintiffs/respondents were primarily obliged to establish their title in the suit house bearing No.878 in Circle No.3 where the Padukas of Saint Haridas Baba have been installed, as being the property of the plaintiff trust. The plaintiffs must succeed or fail on the title they establish; and if they fail to do so, they must fail to get the relief of possession irrespective of title of the defendant in the suit property (See Brahma Nand Puri Vs. Naki Puri3 and Bajaranglal Shivchandrai Ruia Vs. Shashikant N. Ruia and Ors.). In the present case, no tangible evidence regarding title of plaintiff trust in the suit house (House No.878 in Circle No.3) is forthcoming.The High Court has also adverted to theadmission given byVijay, noted in paragraph No.12 of the impugned judgment. In our opinion, the High Court has completely misread the said admission. Inasmuch as, all it says is that the house number had changed every four years after revaluation. Further, the suit house is in Circle No.3. This is spoken by the witness (DW1), in response to the question posed to him about the change of Circle. He then admits that since 1910, the suit house was owned by Haridas Bairagi. We fail to understand as to how this admission can be of any avail to the plaintiffs much less to hold that the plaintiff(1965) 2 SCR4) 5 SCC 272  trust has title in the suit house bearing House No.878 in Circle No.3.Much ado was made about the contents of a communication sent by defendant No.1 to the Mayor of Nagpur Municipal Corporation (Exh.75). The same reads thus:he Mayor, Nagpur Municipal Corporation Wasudeorao Maniramji Pullarwar, Occupier Baba Haridasji Math, House No.152, Ward No.6 New Ward No.16, S. No.03, New Shukrawari, Fawara Chowk, Medical Road, Nagpur. …..ApplicantSubject: Objection to mutation on house No.152, Ward No.16 circle No.03, New SShukrawari, Fawara Chowk, Medical Road, Nagpur.With respect, it submitted that house no.152, Ward No.16 New Shukrawari Nagpur is recorded in the name of Baba Haridas Math in the Nagpur Municipal Corporation assessment register for the last 70 years. The applicant is the disciple of Baba Haridas for the last 60 years and is in possession and occupation of it for last 30 years. He is looking after the Math and performing pooja/ustsav on yearly basis (yearly Utsav). I am paying the taxes of the said math for the last 30 years as occupier and user. The receipts to that effect are with me. The demand bill for the year 197879 for taxes is given to the applicant. From that it has come to the knowledge of the applicant that the said house is recorded in the name of ?Shri Hanuman Deosthan Trust?. Then it is mentioned that the said change is as per the decision of Learned Charity Commissioner, Mumbai dated 4.4.1975 and the same is recorded on 15.7.1976 in the name of Hanuman Deosthan Trust. However, in the office or register of Charity Commissioner, Mumbai or Deputy Charity Commissioner, Nagpur dated 4.4.1975, there is no reference/mention about Shri Haridas Baba Math, House No.152, Ward No.16, Circle No.3, New Shukrawari, Nagpur nor there is any reference in the copy received by me.Hence, the Hanuman Deosthan Trust has got the name changed from Haridas Baba Math to Hanuman Deosthan Trust by keeping the tax department in the dark, fraudulently. The change is recorded by the assessment department of the Nagpur Municipal Corporation without consulting or asking the applicant. The said change is not acceptable to the applicant.Hence, the original name of Baba Haridas Math should be maintained. Accordingly, the applicant is ready to pay the taxes as earlier.Also the Hanuman Deosthan Trust has got the change done by keeping the Corporation in the dark. It has no relation with the math.Hence, the name of the said Trust be removed and original name of Baba Haridas Math be maintained. The applicant be given opportunity to produce his documents and say before yourself.Nagpur Dated: 17.3.1980We fail to understand as to how this communication can be used as an admission of the defendants much less of having accepted the title of the plaintiff trust in the suit House No.878 (renumbered as House No.152), in Circle No.3. On the other hand, it is a representation made to assail the unilateral alteration of mutation entry in favour of Shri Hanuman Deosthan Trust in violation of principles natural justice.Suffice it to observe that even the second substantial question of law must be answered against the plaintiffs and in favour of the defendants/appellants.