VASANT BHASKAR PARULKAR Vs. MAHESH SHIVRAM REGE

JUDGEMENT

(1.) This appeal by the original plaintiffs is directed against the judgment and order dated September 10, 1998 passed by a learned Single Judge dismissing appellants'suit No. 1773 of 1987 with costs.

(2.) Appellants are the trustees of Balmohan Vidyamandir Trust ( hereinafter referred to as "the Trust"), a public charitable trust registered under the Bombay Public Trusts Act, 1948. They filed a suit against the respondent for possession of a flat (hereinafter referred to as the suit flat) situated on the rear side of the first floor of the building at 42, Kaleskar Road, Shivaji Park, Mumbai 28 (hereinafter referred to as the suit building). By the impugned judgment the suit was dismissed.

(3.) The case of the appellantsplaintiffs is that Mr. Shivram Dattatraya Rege (for short "Shivram") was the founder and managing trustee of the Trust. In the year 1940 Shivram took on lease the suit flat along with two flats on the ground floor of the suit building on monthly rent of Rs.155/from the Court Receiver, High Court, Bombay, who was appointed as the receiver of the suit building by the High Court in Suit No. 971 of 1940. The tenancy in respect of all the three flats was one. All the three flats were initially used by Shivram for running a school / coaching classes, while he resided with his family in one room of the suit flat. In or about May 1946 the school / classes conducted in the suit flat were shifted to the main school building and Shivram started occupying the suit flat for residence of himself and the family. On 28th March 1955, by a deed of declaration dated 28th March 1955, (Exhibit P40) registered in the Office of the Sub Registrar of Assurances Shivram unconditionally, unreservedly and without any consideration transferred and relinquished of his claim and interest in the properties mentioned in the schedules A and B to the said declaration in favour of the Trust. Schedule A contains list of two immovable properties, viz. the first, his leasehold interest in the piece and parcel of land bearing plot nos. 59, 61, 63, 61 of G Ward No. 4379 (4) at Kaleskar Road, Shivaji Park, Mumbai 28 together with main building of the school and the second, his monthly tenancy rights in respect of the suit flat and two flats on the ground floor of the suit building. Shivram, who was the managing trustee of the Trust continued in occupation of the suit flat till his death on 8th June 1982. His one son Dr. Moreshwar, the appellant no.2, lived with him in the suit flat till 1975 and again from from the year 1979 till the death of Shivram. Between the years 1975 and 1979 the appellant no.2, who was also the principal of the school run by the Trust resided in the premises provided by the Trust in the main building of the school. After the death of Shivram the Trust , by a resolution dated 12th April 1983, appointed the appellant no.2 as the managing trustee of the Trust and also allowed him to occupy the suit flat. The respondent , who is another son of Shivram, lived separately in the flat of his motherinlaw at Bandra. However, after the death of Shivram he trespassed in the suit flat. Proceedings under Section 145 of the Criminal Procedure Code were initiated but therein the Trust could not secure possession of the suit flat. The appellant no.2 then filed a suit in his personal capacity against the respondent for eviction. However, on account of family relationship the suit was not pursued by him and was withdrawn. Finally the Trust through all the trustees filed the present suit in April 1987 against the respondent for eviction.