MARTANDA DEO VAHIWATDAR Vs. NAMDEO SAHADU GHULE

JUDGEMENT

(1.) BEING aggrieved by the judgment and decree dated 4th December 1991 passed by the 3rd Additional District Judge, Nashik in Regular Civil Appeal No.86 of 1985 by which the judgment and decree dated 22nd January 1985 passed by the Civil Judge, Junior Division, Pimpalgaon (Baswant) in Regular Civil Suit No. 131 of 1973 was reversed, the present Appeal was preferred by the unsuccessful Plaintiff.

(2.) IN support of the Appeal, Mr. P. N. Joshi, learned counsel for the Appellant submitted that both the courts below concurrently held in favour of the Appellant Plaintiff that the Respondent Defendant had made an encroachment to the extent of 27 guntha as against 30 guntha that was claimed in the suit by the Appellant Plaintiff. The Trial Judge, accordingly made a decree in favour of the Appellant for possession/removal of encroachment as a sequel to the finding to that effect recorded by it. According to Mr. Joshi, though the lower Appellate Court concurred with the Trial Judge about the encroachment made by the Respondent Defendant to the extent of 27 Guntha, it still allowed the appeal and dismissed the suit on the ground that the suit filed by the Appellant Plaintiff was not maintainable, as it was filed by one Trustee for the Trust. The lower Appellate Court categorically held that the Civil Court did have jurisdiction to entertain the suit for removal of encroachment or for obtaining decree for possession. Mr. Joshi, then contended that point No.3 framed by the lower Appellate Court in that context regarding maintainability of the suit could not have been framed at all since it did not arise. There was neither pleading set up by the Respondent Defendant in defence nor an issue framed to that effect by the Trial Judge. However, according to him, because in the crossexamination the Appellant Plaintiff admitted that the Trust had some other Trustees and the Trust was registered under the Bombay Public Trust Act, the lower Appellate Court took that evidence for framing point No.3 for determination and held the suit as not maintainable which is wholly illegal. Mr. Joshi, the learned counsel therefore, prayed for restoring the judgment and decree passed by the Trial Court.

(3.) PER contra, the learned counsel for the Respondent supported the judgment and decree passed by the lower Appellate Court by which the suit filed by the Appellant Plaintiff was dismissed. The counsel for the Respondent contended that it is a fact that the Plaintiff made a categorical admission in his crossexamination that the Trust is a registered public Trust and had some Trustees. The same was a question of law and in the wake of an admitted fact in the crossexamination, no fault can be found with the lower Appellate Court who relied on the said admission and dismissed the suit. According to the learned counsel for the Respondent, there are decisions that single Trustee cannot file a suit for possession and removal of encroachment.