SHRIRAM EDUCATION SOCIETY Vs. NAGPUR IMPROVEMENT TRUST

JUDGEMENT

(1.) Second Appeal No. 19/2013 has been filed by original plaintiff, The Shriram, Education Society, Dharampeth, Nagpur and ors., feeling aggrieved by rejection of the crossobjection that was filed before the lower appellate court in Reg. C. A. No. 766/2012 for claiming the relief of declaration that was not granted by the trial court by judgment and decree dated 02.03.1993 in Spl. C. S. No. 823/1987.

(2.) Second appeal No. 168/2013 has been filed by original defendantNagpur Improvement Trust, against the judgment and decree passed by learned trial Judge in Spl. C. S. No. 823/1987 decided on 02.03.1993 and confirmed by judgment and decree dated 05.11.2012 in Reg. C. A. No. 766/2012 by learned District Judge11, Nagpur, by which the suit filed by the original plaintiffs was partly decreed restraining the defendantNagpur Improvement Trust from dispossessing the plaintiffs except by due process of law.

(3.) The original plaintiffs, The Shriram Education Society, (hereinafter referred to as "The Society") and nine other trustees filed Spl. C. S. No. 823/1987 against the defendantNagpur Improvement Trust (hereinafter referred to as "NIT") for declaration and perpetual injunction and claimed a declaration that the NIT had no right to take back possession of the two plots admeasuring together 2.94 Acres and perpetual injunction prohibiting NIT from taking possession thereof or disturbing the same. The suit was lodged on 23.12.1987 in the civil court. The trial Court also issued ad interim injunction on 24.12.1987 which was confirmed on 09.10.1989 and on Civil Application No. 2241/1993 in F. A. No. 563/1993, this Court ordered status quo on 12.11.1993. In response to the suit summons, the defendant NIT entered appearance and filed adjournment applications Exh.9, 10, 11, 12, 13, 14 and 15 and, thereafter, did not appear before the court nor filed any written statement or reply. At the stage of evidence, the plaintiff tendered evidence of only one witness PW1Anandvardhan s/o Chandranarayan Trivedi, Exh.23 who deposed and proved Exh.27, 28, 29 and 30 only and closed the case. The defendant NIT remained absent and hence there was no crossexamination. Thereafter, the plaintiff filed written notes of arguments Exh.35. The learned trial Judge, thereafter delivered the judgment holding that the plaintiff failed to prove any right over the suit property that too after expiry of period of lease and, therefore, was not entitled to any declaration that the defendant NIT could not take back the possession of the suit plots. The trial Court, however, held that the plaintiff was in possession and was "holding over" and therefore, the defendantNIT was restrained from dispossessing the plaintiff except by due process of law. The defendant NIT filed Reg. C. A. No. 766/2012 before the District Judge, Nagpur while the Society filed CrossObjection in the said appeal claiming the relief of declaration that was denied by the trial Judge. The appeal was taken up for final hearing by District Judge11, Nagpur along with crossobjection and both; the appeal as well as crossobjection; have been dismissed. The lower appellate court, however, held that the society was not "holding over" as held by the trial Judge but it was required to be treated as "tenant at sufferance". Hence, these two second appeals by the rival parties.