YESHWANTRAO LAXMANRAO GHATGE Vs. BABURAO BALA YADAV

JUDGEMENT

(1.) This is a plaintiffs" appeal by special leave. The trial Court dismissed the suit and the Bombay High Court maintained the dismissal in appeal by the plaintiffs.

(2.) The facts are a bit complicated. For the disposal of the present appeal, only a few of them need be stated in a narrow compass. One Ambabai, wife of Chintamanrao Ghatge purchased lands mentioned at items 1A to 1E in the plaint on the 3rd of December, 1896 in the name of the deity Shri Vitthal Rakhumai Dev. Lands at 1F, 1G and 1H were endowed by Ambabai to the deity by a deed of endowment executed in January or February, 1905. Under this deed of endowment, one Pandurang Babaji Pawar was appointed the Vahivatdar (Manager) and one Bala Appa Yadava was appointed as a servant of the deity. On the 1st of June, 1905, however, Ambabai executed a sale-deed in respect of all the suit properties except property 1E in favour of Pandurang and Bala. On the 23rd of June, 1907 Ambabai executed a second Will and in that also she reiterated that Pandurang was being appointed as Vahivatdar and Bala a servant of the deity. Ambabai died on the 12th of March, 1910. After her death Pandurang and Bala partitioned the properties purchased by them by the sale-deed dated 1-6-1905. Pandurang got property at 1C and the rest went to Bala. Pandurang died on the 13th of February, 1911. Thereafter his widow Radhabai sold the property at 1C to one Chinto Deshpande. Chinto sold it to original defendant No. 2. Property at 1E came in possession of the original plaintiffs - Plaintiff No. 1 being Yashwantrao Laxmanrao. He claimed to be a Manager and hereditary trustee of the deity. Original plaintiff No. 2 who died during the pendency of the suit and on whose death his legal representative was substituted claimed to be the hereditary Pujari of the deity. Property at 1E had come in possession of the plaintiffs long time back and plaintiff No. 1 treated the said property as his own. There were several other transfers inter se between the defendants and ultimately in one from or the other defendants 1 to 6 came to hold one kind of interest or the other in the various suit properties. The plaintiffs instituted the suit in the year 1961 with the permission of the Charity Commissioner, Maharashtra, defendant No. 7. The suit was instituted under Ss. 50 and 51 of the Bombay Public Trusts Act, 1950 - hereinafter called the Act, to recover possession of the suit properties from defendants 1 to 6. Property at 1E have been sold by plaintiff No. 1 on the 17th of September, 1947 to original defendants Nos. 2 and 3. The sales made in the year 1905 as also in the year 1947 were attacked as being void and not binding on the deity. Although specifically the deity was not impleaded as a plaintiff in the suit, as observed by the District Judge, Satara who tried the suit in the first instance, to all intents and purposes the suit was by the deity and the two plaintiffs. Defendants contested the suit on several grounds. Several issues were framed and tried by the learned District Judge. He held that the properties in suit were bequeathed by Ambabai to the deity. The sale-deed dated 1-6-1905 was obtained by undue influence. It was without legal necessity and was not for the benefit of the Devasthan. It was, therefore, held to be not binding on the Devasthan. The purchaser"s possession over the land sold was, therefore, held to be void and adverse. Same were the findings of the trial Court in respect of the property at 1E. The suit was, however, dismissed on the ground that it was barred by limitation.

(3.) On appeal by the plaintiffs, only limited submissions were made by them in the High Court. The finding of the trial Court that the respective purchasers were in adverse possession of the properties at 1A to 1D and 1F to 1H was not attacked. The finding of the trial Court, however, in respect of property at 1E was assailed but without success. The High Court dismissed the appeal.