Patna High Court
Khiri Ram Gupta And Anr. vs Nanalal J. Parekh on 27 July, 1962
Equivalent citations: AIR1964PAT114, AIR 1964 PATNA 114
JUDGMENT K. Ahmad, J.
1. The property in dispute in lliis case ^ portions of plots 293 and 300 of village fatepur, measuring 78'x 9', as detailed in Schedule C of the plaint. According to the plaintiff, which is a society registered under the Societies Registration Act, 1860 (hereinafter referred to as the Act), these two plots along with plut No. 301 were originally the tenancy lands of two persons, namely, Maheshwar Singh, who has been examined in this case as P.W. 4, and Deonarain Singh (minor), son of Paru Smgh. Subsequently, on 3(j-9-ia4u, it is sam, these two tenants sold to the plaintiff, in the name or defendant No. 3 under a registered deed of sale of the even date the land in dispute and the whole of plot No. 301. The plaintiff has been since then using the land as private one for the convenience of the institutions set up near about the land by the society. The grievance made is that recently its right of exclusive user over tne land in suit as private lane has been challenged by defendants 1 and 2, who are father and son, and who alone have contested the suit. Hence the necessity for a declaration of title and for permanent injunction restraining the defendants from using the land as Kasta, as averred in the plaint.
2. It is not denied that in the survey rocord-of-rights these two plots were recorded in the name of Maheshwar Singh and Paru Singh as raiyats. But, there was a note made in the 'Remarks' column in regard to plot No. 300 that it was then in possession of one Nuru Singn, who, as admitted by both the parties, was the father-in-law of Paru Singh. This entry standing by itself prima facie suggests that perhaps Nuru was a sub-tenant in plot No. 300 under the aforesaid two tenants. But, in defence, the case pleaded by the two contesting defendants was as if Nuru was himself a raiyat of plot No. 300, and, therefore, his title as a raiyat in regard to that plot was subsisting. Further, it is claimed that Nuru, as such, sold plot No. 300 to the defendants under a deed of sale dated 7-8-1948. According to the defendants, therefore, the plaintiff did not acquire any title in respect of plot No. 300 under the deed of sale dated 30-9-1940. Lastly, there was also a claim made that, in any view of the matter, the land in dispute was not a private Rasta, but a public Rasta open to the use of everybody in The locality. Then, there was also an objection raised on behaif of the defendants on the question of maintainability or the suit.
3. Both the Courts below have concurrently found that (1) the suit as framed is maintainable; (2) the plaintiff has title to the land in dispute; and (3) the disputed land is a private land and not a public one. On these findings, the suit hss been decreed by both the Courts below. The contesting defendants, therefore, have now come up in second appeal.
4. Mr. Rajgarhra appearing for the appellants has challenged all the aforesaid three findings concurrently arrived at by the Courts below. In support of the sub-
mission made by Mr. Rajgarhia on the question of non-mamiainabitity of the suit, my attention has been drawn to the provisions of Sections 6 and 7 and also other sections of the Act. Section 6 of the Act relates to suits by and against societies registered under the Act and provides that "every society registered under this Act may sue or be sued in the name of the president, chairman, or principal secretary, or trustees, as shall he determined by the rules and regulations of the society, and, in default of such determination, in the name of such person as shall be appointed by the governing body for the occasion; provided that it shall be competent for any person having a claim or demand against the society, to sue tne president or chairman, or principal secretary or the trustees thereof, if on application to the governing body some other officer or person be not nominated to be the defendant."
Relying on the provisions of this section, the submis-sion made by Mr. Rajgarhia is that any society registered under the Act, not being a corporation, cannot sue or be sued in its own name, but only as provided in Section 6. In the present case, it is not denied that the suit was instituted in the name of the society alone as the sole plaintiff. Therefore, it has been argued on behalf of tne appellants that the suit as framed is not maintainable. Prima facie, I think, there is much force in this contention. But the Court below, relying on the decisions Satyavart Sidhantalankar v. Arya Samaj, Bombay, AIR 1946 Bom 516 and Nabadwip Bhajan Asram v. commissioner or Nabadwip Municipality, AIR 1959 Cal 361 has repelled this argument and has come to the conclusion that the suit as framed is maintainable in law. Now, this much is admitted even by Mr. Mazumdar, appearing for the respondent, that any registration made under the Act does not make the society a corporation. In fact, the authorities relied on by the Court below also accept this position.
But the argument advanced is that though the registration of a society under the Act does not constitute a corporation in the technical sense of the word, it does makes it at least a quasi-corporation, and, therefore, the society may sue or be sued in its own name, even though there is no provision made in that respect in Section 6 of the Act. This point has been elaborately discussed in the case of Satyavart Sidhantalankar, AIR 1946 Bom 516 aforesaid by Bhagwati J., and therein special reference has been made to a decision of the House of Lords in Taff Vale Railway v. Amalgamated Society of Railway Servants, (1901) AC 426. The speech made therein by Lord Lindley may usefully be quoted here. That was in these words :
"The Act does not in express terms say what use is to be made of the name under which the trade union is registered and by which it is known, But a trade union which is registered tinder the Act must have a name..... It may acquire property, but not being incorporated, recourse is had to the old well-known machinery to Trustees for acquiring and holding such property, and for suing and being sued in respect of it (Sections 7, 8, 9). The property so held is, however, the property of the union; the union is the beneficial owner, . . . .The Act appears to me to indicate with sufficient clearness that the registered name is one which may be used to denote the union as an unincorporated society in legal proceedings as wen as for business and other purposes. The use of the name in legal proceedings imposes no duties and alters no rights, It is only a more convenient mode of proceedings tnat that which would have to be adopted if the name couia not be used. I do not say that the use of the name is compulsory, but it is at least permissive..... to avoid misconception, I will add that if a judgment or order in that form is for the payment of money it can, in my opinion, only be enforced against the property of the trade union, and that to reach such property it may be Sound necessary to sue the trustees." ' Further, in the Bombay decision, the learned Judge has observed:
"If it were necessary to do so, I would adopt tne terminology which has been adopted in this connection by Cozens-Hardy M. R. in (1909) 1 Clause 163, Osborne v. Amalgamated Society of Railway Servants whete he describes a registered trade union as a 'species of quasi corporation.' (See also note (q) in Halsbury's Laws of England, Hailsham Edition, Vol. VIII, P. 2) 'Registered Trade Union is not a Corporation but a legal entity governed by special rules', and also Halsbury's Laws f England, Hailsham Edition Vol. XXXII, P. 486, para 776. 'A registered trade union is not a corporation nor an individual nor a partnership; but it becomes by registration a legal entity distinct from an unregistered trade union. its registered name is to be used and applied in an legal proceedings, unless there is any provision inconsistent with such use.
Thereafter, a similar question arose in the Calcutta High Court, and that was disposed of by a Division, Bench of that Court in the case of Nabadwip Bhajan Assan, AIR 1959 Cal 361 referred to above. Therein, the view taken by Bhagwati J. in the aforesaid Bombay case has been fully approved, In the light of the decision or these authorities, I think, this question now seems to ha, more or less, settled, perhaps, the ratio decldendi of these cases is that any provision made, like the one in Section 6 of the Act, does not take away the inherent right of a society registered thereunder to sue or be sued in its own name. If in fact it does not lose that right then, as a result of that, it develops the character like that of a quasi-corporation. It is true that in the Act also there is no express provision made that a society registered thereunder can sue or be sued in its own name, but in view of what has been held in the aforesaid two authorities that fact alone is not to be taken as a settlor on that point But we have to find out further whether the provisions made therein are such as they, by Implication give such a right to the society. Under the Act there are powers given to the society registered for acquiring and disposing of any property. Therefore, in that way, there is a clear similarity between the provisions made In the ACT and the one which is referred to in the aforesaid case of the House of Lords. I, therefore, agree with the Lower appellate Court that the suit as framed is maimamable in law.
5. Then comes the second point relating to the title of the plaintiff. The main submission made by Mr. Rajgartia in connection with this point is that formerly when the case had been remanded by this Court to the lower appellate Court for a fresh hearing, there was a specific direction given that in dealing with the question of title, the admission made by P.W. 4 on the recora-or-rights of the land in suit should not be ignored; rather, it should be weighed along with other evidence. This direction, according to Mr. Rajgarhia, has not been complied with by the lower appellate Court in delivering the judg-ment under appeal. In my opinion, factually speaking, this part of the sub-mission made on behalf of the appellants is not correct. Both these points have been specifically taken into consideration in the judgment under appeal, though, it is a different matter that they nave not been considered in the manner as Mr. Rajgarhia suggests. But that is not a point to be raised in second appeal. I, therefore, hold that the question of title is now concluded.
6. Ihe third point relates to the nature of the Rasta in dispute, namely, whether it is private or public. The basis of the claim made by the defendants in support of their right of user is founded on two grounds, namely, (1) that the title of the land is in them, and (2) that they have a right of user over it. The question of title, as already discussed above, is now of no avail to the defendants. In regard to the right of user, the lower appellate Court in paragraph 34 of the judgment under appeal has observed as follows:
"The learned Munsif has summed up the position thus and I think rightly so. I may mention here that the learned Advocate appearing on behalf of the Defendant has conceded that the defendant or the public has not acquired any right by easement and the right of way which is claimed in this suit is not an easement nor a is a claim based on lost grant but is a customary right. The long user as asserted by the Defendants cannot raise a presumption of dedication even, it has been the admitted position that the lane has been fenced by wails on two sides and on two ends two doors had been tencea having door leaves. This cannot be the position with a public road or a public lane. At best it can be said tnat the defendants claim this road by custom, the learned Munsif has rightly pointed out that all the requisites of a valid custom were not established so as to say that by the customary right the defendants have acquired a right over the land in question."
Unfortunately, nothing particular has been brought to my notice, either in support of the claim of customary right or on the basis of easement. Further, there is no material on the record in support of any such claim. Therefore, the finding on the question of the naturs of the Rasta, as given by the lower appellate Court, cannot be held either wrong or perverse.
7. Accordingly, I hold that there is no substance in this appeal, and it is dismissed. But, in the circumstances of the case, there will be no order for costs.