AMIRCHAND TULSIRAM GUPTA Vs. VASANT DHANAJI PATIL

JUDGEMENT

(1.) THIS is an appeal preferred by the original plaintiffs against judgment dated April 30, 1981 delivered by learned Single Judge in Suit No. 260 of 1974 dismissing the plaintiffs suit for declaration of title and recovery of possession with the incidental reliefs in respect of six pieces of lands situated at Bhandup in Greater Bombay. The appellants are the Trustees of the Tulsiram Devidayal Charitable Trust, a Trust registered on July 9, 1953 under the Bombay Public Trusts Act, 1950. Respondent No. 11 is the brother of appellant No. 1 and is a co-trustee and was joined as defendant No. 11 to the suit in pursuance of an order dated January 6, 1981 passed by the learned Judge granting amendment of the plaint.

(2.) THE plaintiffs claimed that by registered Deed of Conveyance dated August 14, 1957 a piece of land admeasuring 14,017 sq. yards situated at Bhandup was purchased from Dwarkadas Hiraji Keni for a consideration of Rs. 42,501/ -. The sanction for purchase of the property was secured from the Charity Commissioner on August 6, 1963. The Trustees also purchased adjoining plot of land admeasuring 37,883 sq. yards from Hirjibhai Dinshaw Billimoria by registered conveyance dated June 27,1959 for consideration of Rs. 1,48,000/ -. The sanction and approval of the Charity Commissioner for this purchase was secured by order dated May 19,1959. Both these plots of lands purchased from Keni and Billimoria are adjoining to each other and the Trustees were put in actual possession after execution of the conveyances. On the date of the execution of the conveyances the lands were not surveyed by the District Land Survey. Officer of the Government of Bombay, though the work of survey was undertaken sometime in the year 1958-59. The lands purchased by the trustees were subsequently surveyed and were given Survey numbers and those Survey Nos. are

(3.) THE suit was not resisted by defendants Nos. 1 to 4, who are the legal representatives of deceased Dhanaji Bhau Patil. Defendant No. 8 also did not file any written statement. Defendant No. 9 filed written statement claiming that an agreement of lease of plot of land admeasuring 2117 sq. yards from Survey No. 90 Hissa No. 2 was entered between defendant No. 9 and Dhanaji Bhau Patil in the month of March 1986. Defendant No. 9 claimed that in view of the appointment of the Court \receiver, defendant No. 9 lost possession and thereafter is no longer interested in the suit land. Defendant No. 10 filed written statement claiming that Dhanaji Patil had delivered possession of the portion of the land admeasuring 4500 sq. yards from Survey No. 81 Hissa No. 1 (part) and Survey No. 81 Hissa No. 2 (part) and about 1200 sq. yards from survey No. 90 Hissa No. 1 and defendant No. 10 is enjoying possession thereafter as the full owner. Defendant No. 10 after filing the written statement did not participate at the trial and did not enter the witness box nor did cross-examine the plaintiffs or any of their witnesses. Defendant No. 11, who is brother of plaintiff No. 1 and was a co-trustee filed a written statement pointing out that as no relief was claimed against defendant No. 11 nothing further is required to be done. The suit was resisted by defendant Nos. 5 to 7. Defendant No. 5 claimed that the suit was barred by law of limitation and was also bad for multifariousness and for failure to join the necessary parties, that is defendant No. 11 who was a co-trustee at the time of institution of the suit. Defendant No. 5 also claimed that the suit was not maintainable as the plaintiffss had earlier instituted Suit No. 2317 of 1968 in Bombay City Civil Court for recovery of possession of land bearing Survey No. 81 Hissa No. 1 from Patil and another trespasser. The plaintiffs were permitted to withdraw the suit without obtaining leave to file a fresh suit on the same cause of action and therefore, the present suit is barred by provisions of Order XXIII, Rule 1 of the Code of Civil Procedure. Defendant No. 5 then claimed that the plaintiff had filed four suits, being Suits Nos. 3314, 3315, 3316 and 3317 of 1969 for possession of different portions of suit lands which were alleged to have been trespassed by the defendants in those suits. One of the common defendant in all the suits was Dhanaji Patil. Dhanaji Patil died sometime in October, 1971 and thereafter as his legal representatives were not brought on record in all the four suits, orders were passed that claim against Dhanaji Patil stands abated. Defendant No. 5 claimed that as the claim against Dhanaji Patil had abated the present suit filed for recovery of possession was barred by principles of res judicata, in respect of those portions of land which were involved in the four suits in the Bombay City Civil Court. Defendant No. 5 then challenged the title of the plaintiffs by asserting that the vendor Kini and Billimoria had no title to the suit lands and consequently could not have transferred valid title in favour of the trustees. Defendant No. 5 asserted that Dhanaji Patil and his predecessors were in possession of the suit from time immemorial and consequently had perfected their title by adverse possession. It was also claimed that Dhanaji Patil and his predecessors were Sutidars or cultivators in respect of the suit lands and Dhanaji Patil had leased out several portions of the lands to various parties by registered deeds asserting absolute title in the suit lands. Defendant No. 5 claimed to have secured the suit land from Dhanaji Patil by lease deeds (Exhibits 33 and 34) executed on June 7, 1996. Defendant No. 5 claimed that the lease was initially in favour of a partnership firm consisting of defendant Nos. 5 and 7 but subsequently the firm was dissolved on March 29, 1969 and thereupon defendant Nos. 5 and 7 divided the suit lands amongst themselves. Defendant No. 5 therefore, pleaded that Dhanaji Patil having perfected his title by adverse possession and defendant Nos. 5 to 7 having secured possession from Dhanaji Patil, the suit instituted by the plaintiffs for declaration of title and recovery of possession is not maintainable. Defendant No. 5 also claimed that he had leased out several portions of lands to various persons and structures were erected after converting the land for non-agricultural use and obtaining permission from the Bombay Municipal Corporation. Defendant Nos. 5 pleaded that none of the documents in support of the claim are available in view of the raid at his house in which all the documents were lost. Defendant Nos. 6 and 7 filed separate written statements adopting the contentions raised by defendant No. 5.