HUSEINMIYA SAFIMIYA Vs. HABIBSHA HASAMSHA FAKIR

JUDGEMENT

(1.) In this appeal defendant No. 1 in special civil suit No. 51 of 1978 on the file of the learned Civil Judge (Senior Division) Junagadh has challenged the decree for possession passed by the learned trial Judge on 29

(2.) In order to highlight the grievances voiced by the appellant through his learned Advocate before us it is profitable to have a look at the relevant facts. Respondents Nos. 1 to 4 are the original plaintiffs in the suit while respondent No. 5 is original defendant No. 3. Original plaintiffs are trustees of a registered public trust known as Pir Shiraji Sha Dargah Trust. Defendant No. 2 Khalifa Shri Mahmadsha who is since deceased was the Khalifa of the trust. It is the case of the plaintiff-trustee that defendant No. 2 was managing the institution and the lands thereof as Khalifa. After some time he started mismanaging the same. Followers of Dargah applied to the Charity Commissioner in 1963 under section 50A of the Bombay Public Trusts Act for sanctioning the scheme and for appointing trustees. The Charity Commissioner by his order dated 27-11-1964 sanctioned the scheme and appointed the plaintiffs as first trustees. Defendants appeal against the Charity Commissioners order failed. Thus the plaintiffs submitted that they were duly appointed trustees of the public trust. That the present appellant-defendant No. 1 was Kamdar and special advisor of defendant No. 2. That he took defendant No. 2 under his thumb. In the meantime the plaintiffs on the sanctioning of the scheme took possession of the trust property in April 1966 and entered upon management thereof. That the trustees were contemplating to give the land bearings No. 50 for cultivation on Ek-Sali basis to one Pole Kana by an agreement dated 26-5-1966. But when the said Pole Kana went to take possession of the land the present appellant did not allow him to enter upon the suit land and he claimed to be in possession thereof in his own right. It is in these circumstances that the plaintiffs after filing a criminal complaint against the present appellant. filed the aforesaid civil suit for possession of the suit property from defendant No. 1 on the strength of title. According to the plaintiffs the appellant is a rank trespasser he has illegally been inducted in the land by defendant No. 2 and he has no right to retain possession thereof and the trust was entitled to enter upon possession. It was further contended that if any document was entered into between defendant No. 2 and defendant No. 1 on the other and if any amount was received by defendant No. 2 from defendant No. 1 the said transaction would not be binding on the trust or the plaintiffs and that the plaintiffs were entitled to be put in possession of the land. .. .. .. ..

(3.) We have been taken through the relevant evidence on record and the decision rendered by the learned trial Judge and the reasons given by the learned trial Judge while answering the concerned issues against the appellant. Mr. Mishra for the appellant ultimately highlighted the following contentions for our consideration:-