PARVATIBAI RAMDAS ASHAR Vs. BHIMJI MAKHANJI

JUDGEMENT

(1.) THIS Second Appeal is directed against the Judgment and decree passed by the learned Extra Assistant Judge, Nashik in Regular Civil Appeal No.299 of 1979, dated 20th August, 1981. The learned First Appellate Court has allowed Regular Civil Appeal No.299/1979 and set aside the Judgment and Decree passed by the learned Trial Court.

(2.) MORE facts : The Regular Civil Suit No.233/1974 was filed by the Plaintiff No.1-Trust, through its Trustees i.e. the Plaintiff No.2 and 4 against the sole defendant Bhimji Mokhaji. The Suit filed by the original plaintiffs, was for the possession of the premises i.e. two rooms on the ground floor out of house No.4312 and moveable and for compensation. The suit property consisting of two rooms, out of the building known as "Dharmashala" is owned by the plaintiff-Trust and was allowed to be occupied by the defendant as licensee on 22.6.1970. It is alleged by the plaintiffs in the Suit that on 22.6.1970 an agreement to sale took place between the plaintiff Nos.1 to 4 and sole defendant and in consonance with the said agreement an amount of Rs.10,000/- was paid by the defendant to the plaintiffs. It is also alleged that the licence was granted in favour of the defendant initially only for the period of 4 fortnights. It is further alleged that the application seeking permission from the Charity Commissioner, for sale of suit property was to be made by the original plaintiffs No.1 to 4. It is further stated that the said application was made, however, came to be rejected and therefore, from there onwards, the possession of the defendant, of the suit property, becomes that of the tresspasser's possession. The plaintiff, therefore, as stated above, has filed the suit i.e. Regular Civil Suit No.233/1974 for possession of the Suit property and compensation. The plaintiff Nos.5 and 6 have purchased the said property by registered sale deed from the plaintiff Nos.1 to 4 on 25.3.1977 for the consideration of Rs.75,000/-. The permission from the authority under the Bombay Public Trust Act, was obtained for this transaction. After this transaction the plaintiffs have made an application at Exh. 58 and it seems from the record that the learned Trial Court on 21.8.1979 allowed the said application and the purchasers were allowed to be added as plaintiff No.5 and 6 in the Suit. These are the co-plaintiffs who ultimately proceeded with the Suit.

(3.) THE Judgment of the Trial Court dated 10.10.1979 was challenged by the legal heirs of defendant by filing first Appeal i.e. Regular Civil Appeal No.299/1979. The learned First Appellate Court considering the pleadings and evidence and judgment of the Trial Court passed the decree in favour of the defendant and ordered the dismissal of the Suit.