Bombay High Court
Gafoor Ali Hussain Through Legal Heirs vs Ram Mahadik & Others on 25 August, 1999
Equivalent citations: 2000(1)BOMCR797, 2000(1)MHLJ436
Author: H.L. Gokhale
Bench: H.L. Gokhale
ORDER H.L. Gokhale, J.
1. This appeal arises from the judgment and decree dated 24-12-1997 passed by a learned Judge of the City Civil Court, Bombay, in Suit No. 3399 of 1983. That suit was filed by the respondent Nos. 1 to 9 herein who are the trustees of a public charitable trust which is known as "Nagrik Sahaya Kendra". The said trust runs a high school known as "Dnyaneshwar Vidyalaya" in Wadala area of the city. The case of these respondents was that the appellants and the respondent No. 10 were trespassers on a part of a shed (adjoining to the high school) belonging to the said trust represented by respondent Nos. 1 to 9 and hence they sought a decree for possession which has come to be granted by the learned Judge. It is relevant to note that because of sheer pressure of the work in the City Civil Court, it took 15 years for the suit to be decided.
2. This First Appeal was admitted on 16-2-1998. Thereafter, on being pointed out the requirements of the respondent Nos. 1 to 9 the record and proceedings were called and hearing of the appeal was expedited by another Judge. The appellants were depositing Rs. 300/- per month in the trial Court. The learned Judge, by his order dated 5-3-1998, increased the amount to Rs. 1500/- per month (inclusive of the above referred Rs. 300/-) during the pendency and disposal of the appeal with liberty to these respondents to withdraw the said amount. I am told that this amount is being deposited regularly.
3. After the appeal was admitted, Cross Objection bearing (Stamp) No. 9365 of 1998 has been filed on behalf of respondent Nos. 1 to 9 who have pointed out in the Cross Objection that although the principal prayer in the suit was for possession of the part of the shed known as Mid Day Shelter, prayer (c) thereof was to direct the defendants to pay to the plaintiffs an amount of Rs. 1,500/- per month by way of compensation for use of a part of the said Mid Day Shelter from May 1983 onwards till the hearing and final disposal of this suit. In para 10 of the plaint, it was pointed out that the defendants were using 1/3rd of the shed and that the plaintiffs were entitled to claim compensation at the rate of 1,500/- as stated above till the disposal of the suit and till such time that the defendants remove their goods from the said Mid Day Shelter. Thus, there was an averment of mesne profit which was not considered by the learned Judge while passing the decree. In para 5 of the Cross Objection, it is submitted that mesne profits ought to have been determined at Rs. 10,000/- and more per month from the date of decree considering the daily increasing values of the properties.
4. After the matter came before me, same request for early hearing was made. Therefore, the matter was heard from time to time and is now being disposed of with this order.
5. The respondents have averred in their plaint that the said trust was registered under Registration No. R-1991. The school building is situated at Wadala Estate Scheme No. 57 and at the time of filing of the suit in the year 1983, there were in all 2700 students. Thereafter they have stated that for the benefits of students, the Mid Day Shelter was constructed by way of a recreational centre for students to play, sit, relax, gather for school programmes and to conduct their other activities such as Gymnasium and Health Centre etc. The Mid Day Shelter is stated to be of the size of 40 x 80 with asbestos sheets at a height of about 40 feet from the ground. It has enclosed the under ground water tank and electric pump of the school at one end and has a couple of toilets on the other side. It has three entrances. This centre is also disclosed in the schedule of property of the Trust .
6. Thereafter, it is stated in the plaint that earlier one Mr. M.R. Apte was the trustee of the trust and because of his mismanagement, action was taken against him by passing a Resolution in the year 1969 to remove him from the trusteeship. Mr. Apte filed a suit in the City Civil Court and then a cross suit was filed by the trust. Finally Appeal from Order No. 408 of 1970 filed by Mr. Apte resulted into Consent Terms whereby in March 1971 Mr. Apte agreed not to deal with the leasehold rights in respect of the land of the Trust.
7. Thereafter it is averred in the plaint that in the meanwhile, the original defendants encroached on a part of the Mid Day Shelter and started storing articles meant for stage and curtains of the theatre. When the respondents took over management they sought the possession of the said part of Mid Day Shelter but the defendants claimed in correspondence that they were permitted to keep the material by Mr. M.R. Apte in or about 1972 and were tenants of Mr. Apte. This led to filing of the suit by pointing out that Mr. M.R. Apte had no authority to do any such thing and occupation of the defendants was wholly unauthorised and they be evicted from the Mid Day Shelter.
8. The original defendant No. 2, i.e. one Mr. Gafoor Ali Hussain, filed his written statement on 15-10-1983. In that he stated that he is occupying the particular shelter since about 1972 under the permission of late Mr. M.R. Apte and he denied the allegation of being a trespasser. He submitted that the suit was not maintainable for want of permission from the Charity Commissioner. In para 4 of the written statement he has specifically raised a plea that he was a protected licensee and hence a tenant under section 5(11)(bb) of the Bombay Rent Act. In para 10 of the written statement, he stated that he was occupying an area of 1000 sq.ft. of that shed. In para 5 of the written statement he submitted that the suit was undervalued. In para 11 he stated that the rent was Rs. 300/- and was paid to Mr. M.R. Apte who used to stay next to the school building but Mr. M.R. Apte did not pass any receipt for the same.
9. The original defendant No. 2 died and his heirs, the appellants herein, came on record and they filed an additional written statement in the year 1995. In this additional written statement, it was stated in para 1 that the original defendant No. 2 was permitted to occupy and use an area admeasuring 2500 sq.ft. In para 2 of the written statement, it was stated that he was so occupying the premises since prior to 1972. Thus, in the additional written statement, there was an improvement with respect to the area and with respect to the time from which the premises were occupied. When the trial proceeded, one Smt. S.S. Apte, the then trustee of the school, was examined on behalf of the plaintiff in November 1997. On behalf of the defendants, 1st witness examined was one Pravin Bansode, a relative of the original defendant No. 2. Thereafter they examined two more witnesses, one Shyam Nandi and one Jaisingh Chavan. The learned Judge of the trial Court framed four issues. The first issue was as to whether the suit was properly valued and it was answered in the affirmative. The second issue was regarding maintainability of the suit without the consent of the Charity Commissioner required under section 51 of the Bombay Public Trusts Act, 1950. This issue was also answered in the affirmative. The third issue was as to whether the plaintiffs prove that Mr. M.R. Apte had no authority to induct the defendant No. 2 in the suit property and as to whether the defendant No. 2 occupation was that of a trespasser. This was also answered in the affirmative. The 4th issue was as to whether the defendant No. 2 proves that he was a lawful tenant of Nagrik Sahaya Kendra, a Public Trust. This was answered in the negative.
10. It appears that original defendant No. 1 (respondent No. 10 herein) did not file any written statement, or contest the suit nor is he contesting this appeal though he is served. I am told by Mr. Salunkhe for respondent Nos. 1 to 9 that he is no longer in any encroachment.
11. In this First Appeal before me, the issue with respect to valuation of the suit was not canvassed much seriously. In any way as recorded by the learned trial Judge, the valuation of the plaint by the plaintiffs at Rs. 25,000/- was not disputed in the trial by putting a single question to the plaintiffs witnesses. That being so, the learned Judge had no option but to accept the valuation as correct.
12. Only two points have been pressed before me for determination. First was with respect to the maintainability of the suit without the consent of the Charity Commissioner and the second was as to whether the original defendant No. 2 was a trespasser or a tenant.
13. With respect to the first point concerning the permission of the Charity Commissioner, it was canvassed by Mr. Thorat that under sections 50 and 51 of the Bombay Public Trusts Act, a suit with respect to the eviction of a person, who is said to be a trespasser, cannot be filed without prior permission of the Charity Commissioner. The relevant portion of section 50 of the Act reads as follows:-
"50. Suit by or against or relating to Public Trusts or trustees or others.---In any case-
(i) Where it is alleged that there is a breach of a public trust, negligence, misapplication or misconduct on the part of a trustee or trustees.
(ii) Where a direction or decree is required to recover the possession of or to follow a property belonging or alleged to be belonging to a Public Trust or the proceeds thereof or for an account of such property or proceeds from a trustee, ex-trustee, alienee, trespasser or any other person including a person holding adversely to the Public Trust but not a tenant or licensee,
(iii) Where the direction of the Court is deemed necessary for the administration of any Public Trust, or
(iv) for any declaration or injunction in favour of or against a Public Trust or trustee or trustees or beneficiary thereof, the Charity Commissioner after making such enquiry as he thinks necessary, or two or more persons having an interest in case the suit is under sub-clauses (i) to (iii), or one or more such persons in case the suit is under sub-clause (iv) having obtained the consent in writing of the Charity Commissioner as provided in section 51, may institute a suit whether contentious or not in the Court within the local limits of whose jurisdiction the whole or part of the subject-matter of the trust is situate, to obtain a decree for any of the following reliefs:--
(a) an order for the recovery of the possession of such property or proceeds thereof;
(b) xxxx
(c) xxxx"
14. Mr. Thorat, learned Counsel appearing for the appellants submitted that a distinction is made under section 50(ii) of the Act between the suits regarding recovery of possession of a property belonging to a trust from a trespasser and recovery of such property from a tenant or a licensee. Mr. Thorat submitted that as per the wording of the section "the Charity Commissioner or two or more interested persons are authorised to file a suit, after making necessary enquiry in those cases which fall under sub-clause (i) to (iii) of this section or such person may file suit under Clause (iv) with the consent of Charity Commissioner. We are concerned with sub-clause (ii) which deals with suit against a trespasser. Mr. Thorat submitted that thereafter within sub-clause (ii) itself, a distinction was made between a suit against trespasser on one hand and a suit against a tenant or licensee on the other. The distinction in Clause (ii) provided that suits against trespassers could be filed only with the consent of the Charity Commissioner but that was not so in suits against tenants or licensees. A cursory reading of the section 50 may lead one to, the view which Mr. Thorat was canvassing. However, it is relevant to note that the section states that in the cases which are mentioned in Clauses (i) to (iv) of section 50, the Charity Commissioner may institute a suit in certain circumstances. Section 51 also provides that for other persons having interest in Public Trust intending to file such a suit, they must obtain consent of the Charity Commissioner. This, however, does not mean that other trustees cannot file suit which is contemplated under section 50. The language in section 50 that the Charity Commissioner may institute a suit or the language in section 51 that other interested persons may institute a suit with the consent of Charity Commissioner does not mean that--- to the trust or trustees do not have powers to institute such a suit. In fact this controversy has been resolved by a Division Bench of this Court in the case of Amirchand Tulsiram Gupta and others v. Vasant Dhanaji Patil and others, . Mr. Salunkhe and Mr. Kadam, learned Counsel appearing for the respondents referred me to that judgment which considers the earlier judgments of the Supreme Court as well as this High Court on this point and holds that the trustee is the legal owner of the property and enjoys all the rights inherent in a natural owner of property and can sue to recover trust property. Section 50 cannot apply as a bar to the substantive right of the trustee to institute suit. No permission under section 51 is necessary in such a case. In view of the above clear position, the learned Judge of the City Civil Court was right in taking the view that the suit was maintainable and the consent of the Charity Commissioner was not necessary as a condition precedent.
15. With respect to other point, viz. as to whether the defendant was a trespasser or whether he was a tenant, Mr. Thorat tried to contend that admittedly the original defendant No. 2 was in possession of the part of the shed right from 1972. It was his case that the defendant No. 2 was paying an amount of Rs. 300/- per month earlier to Mr. M.R. Apte and thereafter to another trustee one Mr. Puranik though there was no receipt of this payment. No agreement in writing whatsoever could be produced on behalf of the defendant No. 2 to prove any such tenancy or license. But Mr. Thorat contended that the learned Judge of the City Civil Court in para 22 of the judgment has observed that there was certainly a possibility of some payment being made to Shri Apte. Shri Thorat, therefore, submitted that merely because the agreement or the receipts were not there, the original defendant No. 2 and the appellants cannot be called as trespassers. He submitted that they had a long occupation in the suit premises and it could certainly not be without any payment being received from time to time. He submitted that the agreement had to be inferred from these circumstances. He submitted that it was not a case of the plaintiffs also that the original defendant No. 2 came over and encroached at some point of time. He, therefore, submitted that this was a fit case which could be considered as that of the licensee deemed to be a tenant to get protection of section 5(11)(bb) of the Bombay Rent Act.
16. Mr. Salunkhe and Mr. Kadam, learned Counsel appearing for the respondent Nos. 1 to 9 countered this submission by pointing out that for an arrangement to constitute a license, three ingredients were necessary, viz. (i) person must be in possession of the premises concerned: (ii) that must be by virtue of an agreement and (iii) there ought to be some fee or payment for that occupation. As far as the protection under the Rent Act is concerned, what was required was that firstly, the premises concerned ought to be a room, secondly, the person must be in possession on 1st day of February 1973 and thirdly the possession must be that of a licensee. Mr. Salunkhe relied upon a judgment of a learned Single Judge of this Court in the case Varisalli v. Abdul Sattar, in this behalf. Mr. Salunkhe submitted that in the present case, undoubtedly the original defendant No. 2 was in occupation of only apart of the shed. The portion in his occupation could not be said to be a room. Besides, his occupation could not be said to be that of a licensee in as much as there was neither a proof of any agreement nor that of payment.
17. Mr. Salunkhe further submitted that the defendants had tried to improve their case from stage to stage. Thus, with respect to the area under their possession, there was no consistent stand. In the written statement of the original defendant No. 2, it was stated that the area was around 1000 sq.ft. (para 10). In the written statement filed by the heirs, the area was stated to be 2500 sq.ft. (paras 1 and 4 of their written statement). As against that, 1st witness of the original defendant No. 2, one Pravin Bansode gave the area as 3500 sq.ft . Similarly, there was an attempt to improve with respect to the time from which these defendants were in possession. In para 11 of the written statement of original defendant No. 2, it was stated that he was in possession since 1970. In para 2 of the written statement by the heirs, it was stated that the possession was since prior to 1970; whereas in evidence of the above referred Pravin Bansode, it was stated to be since two years prior to 1969. Then as far as rent is concerned, in para 17 of the written statement by the original defendant No. 2 the rent was stated to be Rs. 300/-. In the written statement by the heirs, no figure of rent was given whereas the principal defence witness Pravin Bansode stated that the rent was Rs. 200/ per month. Then with respect to the person to whom the rent was paid, there is again a variance. In para 11 of the written statement of the original defendant No. 2 it was stated that the rent was paid to Mr. M.R. Apte. In the written statement by the heirs it was stated in para 4 that it was paid to Mr. Apte during his life time and thereafter to another trustee Mr. Puranik. What is material to note is that there is no letter or notice also sent by the defendants to the plaintiffs calling upon them to give receipt for any payment or recording this agreement or understanding on the basis of which this licence amounting to tenancy is created.
18. Mr. Salunkhe referred me to a number of judgments of the Hon'ble Supreme Court and High Courts on the question of variance in pleadings and evidence. Firstly he referred to the judgment in the case of Siddu Venkappa Devadiga v. Smt. Rangu S. Devadiga and others, wherein the Court held that it is well settled that the decision of a case cannot be based on grounds outside the plead of the parties and that it is the case pleaded which has to be found. Similarly, in Vinod Kumar Arora v. Smt. Surjit Kaur, while dealing with variance between pleadings and proof (Order 6, Rule 2 of the C.P.C.), the Hon'ble Supreme Court held that the pleadings of the parties form the foundation of their case and it is not open to them to give up the case set out in the pleadings and propound a new and different case. The same view is taken by a Single Judge of this Court in Kesharvrao Girjuba Singare v. Chandrabhan Bhojaji Singare, . In that case, the story narrated by the defendant in his own testimony was totally different from the contentions raised in his written statement and that led to rejection of the defendant's contention with respect to allegation of fraud, misrepresentation etc. Mr. Salunkhe also relied upon the judgments of Calcutta and Patna High Courts reported in Mohini Mohan Dawn v. Srischandra Hati, , Jugal Kishor Kundu v. Narayan Chandra Kundu, and, Shaikh Abdul Sattan v. Bipi Rahazani and others, which are to the same effect.
19. That apart, what is most interesting to note is that the star witness of the defendant, the above referred Pravin Bansode, has given his age as 34 years and his evidence was recorded on 28-11-1997. It means that he was born sometimes in 1963. With respect to his knowledge about the suit premises, he has stated in para 2 that in 1970 the defendant No. 2 requested him to help in many things and he accepted the offer and started attending to the business. At that time, he would be just seven years old. He was, therefore, asked in his cross-examination specifically and he has accepted it as follows:---
"Before 1979 1 was studying in school.
I was not in this business before 1972."
In such a situation, one does not know how he states that the defendant was occupying the suit shed for two years prior to 1969 or that he used to pay rent to Mr. Apte and thereafter to Mr. Puranik. He has gone to state to this extent that after 1979 he had sought the rent receipts from Mr. Puranik and they were not given. He has tried to produce a letter of one Drama Producer, one Shri Kamlakar Sarang. That letter is of 24-8-1973. That would be received when this witness was just about 10 years and yet has identified the signature of Mr. Sarang. Mr. Sarang is not examined. The other deposition of this witness is totally devoid of any merit. He has nowhere stated as to what is the basis on which he is making all these depositions when he was not in this business at all as per his own statement in his cross-examination until 1979. The other two witnesses are total strangers and there is no merit in their depositions. Thus, in the circumstances, there was no evidence, worth the name, on behalf of the defendants. There were contradictions in the two written statements filed by them and they tried to make improvements. Such a variance between the pleadings and evidence cannot be the foundation in a plea that the original defendant was licensee to claim the status of a protected tenant.
20. Mr. Thorat submitted that the burden of proof was on the plaintiffs. In the present case, Smt. S.S. Apte was examined on behalf of the trust. She pointed out that earlier Mr. M.R. Apte was managing the affairs of the trust, he was removed in the year 1969 and Mr. M.R. Apte accepted his removal in the consent terms filed in March 1971 in the High Court. She has also stated as to how the defendant No. 2 came in a part of the shed as an employee of the original defendant No. 1 and thereafter refused to vacate. She has deposed to the effect that the defendants had no authority to occupy the shed and were trespassers. The plea that the original defendant No. 2 was a protected licensee and therefore a tenant, was that of the defendant and hence to that extent burden was on the defendant to prove it. The defendants have miserably failed in that. In the absence of the defendant leading any credible evidence, either oral or documentary, it cannot be said that the defendants have discharged their burden of proving that he was a licensee protected under the Rent Act. As against that, the plaintiffs have clearly established that the original defendants had no authority to be in the premises concerned and that there was no relationship between them and the plaintiffs and that they were trespassers.
21. Mr. Salunkhe also relied upon one another judgment of a Single Judge of this Court in the case of Vijaysing Gordhandas and others v. Madhuribai wd/o Madhavdas Govindji and another, to contend that section 15-A of the Rent Act does not apply to "home for widows, orphans or like premises". He submitted that the Mid Day Shelter meant for recreation and such other activities of students was outside the Rent Act. This submission was not canvassed in the trial Court and, therefore, I am refraining to express myself on this plea.
22. In the circumstances, there was no error in the order passed by the trial Court and the learned Judge was right in coming to the conclusion that the defendants were trespassers and deserved to be evicted.
23. The plaintiffs institution is running a school and it took 15 years for it to get the decree in the trial Court. There was a specific prayer and the averment in the plaint that appropriate compensation ought to be awarded for this wrongful occupation. It was sought at Rs. 1,500/- per month. The learned trial Judge has, however, not looked into this aspect at all. The defendants ought to be made to compensate for their wrongful occupation and an educational institution cannot be made to suffer. The cross objection has been filed for that purpose. It is in fact on this footing that earlier an order was passed by another Single Judge directing the defendants to deposit an enhanced sum of Rs. 1,500/- per month which has been continuing till date. In the circumstances, although the appeal is dismissed, there will be an additional direction to the Registrar of the City Civil Court to hold the necessary enquiry and to fix mesne profits as required under Order 20, Rule 12 of the Code of Civil Procedure.
24. In the result, the appeal is dismissed with costs quantified at Rs. 3,000/-. Cross-objections are accepted. The Registrar of the City Civil Court is directed to decide the mesne profits after holding necessary enquiry. The record and proceeding received from the trial Court be returned.
25. Mr. Thorat, learned Counsel for the appellants seeks stay of this order for a period of six weeks. Mr. Salunkhe is fair enough to leave it to the Court. Accordingly it is directed that the decree granted by the trial Court confirmed with an additional direction as above, will stand stayed for a period of six weeks from today.
26. Certified copy of this order is expedited.
Parties and the Registrar of the City Civil Court to act on an ordinary copy of this order duly authenticated by the Shirestedar/Personal Secretary of this Court.
27. Appeal dismissed.