MAROTI

TULSIRAM AND ANR

NOVEMBER 15, 1994

[K.RAMASWAMYANDN. VENKATACHALA, JJ.]

Evidence Act, 1872-Section 116-Estoppel-Suit for possession- Admission made by defendant in cross examination that he entered into suit property on rent as a tenant-Defendant admitted before Municipal authorities that he was tenant and trust was owner of property-He is estoppel from denying title of plaintiff trust.

The respondent as a Managing Trustee of a Trust filed civil suit for possession. The appellant contended that he purchased the property and he being the owner of the property cannot be ejected therefrom. It was also contended that ir. respect of the Trust property, if the character of the Trust or the nature of the Trust was in dispute, the D appropriate proceedings would lie before the authorities constituted under the Bombay Public Trust Act, 1950. The suit was decreed, but, on appeal; that decree was set aside. The appellate Court had accepted that the suit did not lie as the dispute related to the property of the Trust. In the second appeal, the decree of the appellate Court was E reversed and that of the trial Court restored.

The High Court recorded as a fact the admission made by the appellant in the cross examination that he entered into the suit property on rent as a tenant and he also made an admission before the Municipal authorities that he was the tenant and the Trust was the F owner of the property. This constitutes the admission made by the appellant. In view of that admission, the appellant is estopped from denying the title of the plaintiff Trust. The High Court also recorded the finding that preceding the appellant's entry into the possession as a tenant, the Trust was in possession of it for over 12 years and it was leasing the property to various tenants. The Trust was exercising its G right as an owner of the property. In that view it recorded a finding that the appellant had been in occupation of the suit property as a tenant and decreed the suit.

This appeal by special leave has been filed against the judgment and decree of the High Court. The appellant sought to contend that in H

A view of the controversy, the Civil Court lacked jurisdiction to go into the question whether the properties are Trust properties, or not.. •

Dismissing the appeal, this Court

HELD : The finding recorded by the High Court and the trial Court were tliat the appellant had entered into possession of the property as a tenant and he is estopped to deny the title of the Trust by operation of Section 116 of the Indian Evidence Act, 1872. Therefore, his only character is whether he was in possession as a tenant or in his own right as its owner. His contention that he purchased the property and thereafter he became the owner cannot be gone into this appeal for the reason that he admitted in the cross examination that he was a tenant. The record of Municipal Authorities also denies him the right to set up his own independent title, even if at all the deal was validly executed, it does not bind the Trust. (501-H,.502-A)

CIVIL APPELLATE JURISDICTION : Civil Appeal No. 441/80.

From the Judgment and Order dated 11.9.1979 of the High Court of Bombay Nagpur Bench Nagpur in Second Appeal No. ?29/67.

V .A. Bobde and A. K. Sanghi for the Appellant.

E Uday U. Lalit and Rishi Kesh for the Respondents.

The following Order of the Court was delivered:

Substitution allowed.

This appeal by special leave arises from the judgment and decree of the Single Judge of the High Court of Bombay at Nagpur Bench in S.A. No. 329 _of 1967 made or September 11, 1979. The respondent Tulsiram Jagannath Sajo, as a Managing Trustee of Hanuman Deosthan, New Shukrawari, Nagpur, laid C.S. No. 732 of 1961 in the Court of 4th Joint Civil Judge, Junior Division, Nagpur, for possession. The suit was decreed but, on appeal, that decree was set aside and in the second appeal, the decree of the appellate court was reversed and that of the trial court was restored. Ths, this appeal by special leave .

The facts found by the High Court were that one Matadin was the Managing Trustee till 1921 and on his . demise, his son Kanhaiyalal managed the suit property as the Trustee till 1950. Thereafter, the plaintiff

MAROTI v. TULSIRAM 501

assumed the management of Trust as a Managing Trustee. The defendant A entered the suit property as a tenant of the Trust in 195 l. The appellant contends that he purchased the property from one Anandrao Bujade, successor on interest of Kanhaiyalal, by a registered sale deed dated January 12, 1961 and, therefore, he being the owner of the property cannot be ejected therefrom. It was also contended that in respect. of the trust property, if the character of the trust C?r the nature of the trust is in dispute, B the appropriate proceedings would lie before the Authorities constituted under the Bombay Public Trusts Act, 1950. Though, the trial court had not accepted the case of the appellant, the appellate court had accepted that the suit did not lie as the dispute relates to the property of the trust.

The High Court went.into the entire controversy and recorded as a fact C that the admission made by the appellant in the cross-examination that he entered into the suit property on rent as a tenant from Anandrao Bujade in the year 1951 and he also made an admission before the Municipal authorities under Ex. 46 that he was the tenant and the trust was the owner of the property. This constitutes the admission made by the appellant. In view of that admission, the appellant is estopped from denying the title of D the plaintiff-trust. The High Court also recorded the finding that preceding the appellant's entry into the possession as a tenant, the trust was in possession-of it for over 12 years and it was leasing the property to various tenants. The trust was exercising its right as an owner of the property. The High Court had also found that the appellant court had ignored the evidence E of PW-1, Ramaji and PW-2-Shionarayan which proved that the suit property was dedicated by Gaijulal to the Trust. In that view, it recorded a finding that the appellant had been in occupation of the suit property as a tenant and decreed the suit.

Shri V .A. Bobde, learned senior counsel for the appellant, sought to F contend that in view of the controversy, the appropriate steps required to be taken by the respondent were under s.19 as enjoined under s.50 of the Trust Act and the decision of the authorities under s.79 and 80 are conclusive wherein as it was held by the District Judge that the suit property is not a trust property. The civil court had, therefore, lacked jurisdiction to go into the question whether the properties are trust properties or not. We find no G force in the contention.

The findings recorded by the High Court and the trial court were that the appellant had entered into the possession as a tenant and he is estopped to deny the title of the trust by operation of s.116 of the Indian Evidence Act. Therefore, his only character is whether he was in possession as a H

A tenant or in his own right as an owner. His contention that he purchased the property from Anandrao Bujade and thereafter he became the owner cannot be gone into in this appeal for the reason that he admitted in the cross objections that he was a tenant. Ex. 46 also denies him the right to set up his own independent title, even if at all the deed was validly executed, it does not bind the trust. Be it whether Anandrao Bujade's predecessor, namely, B Kanhaiyalal was the managing trustee of the property-or mismanaged the property, since this admission is sufficient for disposal of this appeal, we do not go into the controversy raised by the appellant. He then contended that in view ofhe provisions of the C.P. and Berar (Letting of Houses and Rent Control) Order, 1949, the permission of the competent authority was not taken before filing the suit, under clause (13) of the C.P. and Berar (Letting C ofHoses and Rent Control) Order, 1949, and the suit is not maintainable.

The contention was not raised in the High Court. Therefore, we decline to go into the question. Even otherwise, we find no force in the contention for the reason that the appellant himself set up his own right, title and interest in the property. Necessar; ly, the civil suit has to be filed and the civil court alone can go into the controversy. In that view, the High Court has not committed any error of law warranting interference. The appeal is accordingly dismissed with costs.

A.G.

Appeal dismissed.