AMBUBAI KRISHNA KOLEKAR Vs. BRAHMAN SAMAJ SEVA SANGH

JUDGEMENT

(1.) ALL these petitions are filed under Article 227 of the Constitution of India challenging common judgment delivered by the District Judge, Solapur in Civil Appeal Nos. 403 of 1982, 432 of 1982, 433 of 1982, 434 of 1982, 435 of 1982, 436 of 1982 and 441 of 1982. Common question of facts and law arises in these cases and therefore all these petitions can be conveniently disposed of by common judgment. As stated above in these petitions the judgment dated 21st March, 1985 passed by the District Judge, Solapur in the above referred appeals has been challenged. Appeals were filed by the present petitioners challenging the judgments and decrees passed by the 4th Joint Civil Judge, Junior Division, Solapur in Regular Civil Suit Nos. 627 of 1978, 632 of 1978, 624 of 1978, 628 of 1978, 643 of 1978, 636 of 1978 and 634 of 1978. These civil suits were filed by the respondent Brahman Samaj Seva Sangh, Solapur which is a public trust registered under the Bombay Public Trust Act as also the society registered under the Societies Registration Act claiming therein that the suit property bearing Municipal House No.1178 situated at North Kasba, Solapur is owned by the Public Trust and the present petitioners are holding premises in this building as tenants for residential quarters. The landlord sought decree of possession against the tenants on various grounds. The trial Court recorded finding in favour of the landlord and decreed the suit and directed the tenants to vacate the suit premises. In the appeals filed by the tenants, the appeal court confirmed the finding recorded by the trial Court and dismissed the appeals. Therefore, in these petitions what is challenged is the findings recorded by the two courts below passing the decree of eviction against the petitioners-tenants. The only question that is urged by the learned Counsel appearing for the petitioners is that in the suit, paragraph no.1 of the plaint, the plaintiff has stated that it is a society registered under the Societies Registration Act as also it is a Public Trust registered under the Bombay Public Trust Act and that according to the constitution of the trust, there is a governing body of this Trust consisting of 5 persons who are elected by the general body and that on behalf of the trust the suit is being filed by one Shri Jamdar who has been elected as Chairman of the Trust in the year 1978-79. This allegation made in the plaint was denied in the written statements filed by the tenants. Apart from denying the allegation, they have in their written statement stated that the plaintiffs should be put to strict proof of the allegation made in paragraph 1. It appears from the judgment of the trial Court that the trial Court did not consider this aspect of the matter. However, the appellate court has considered this aspect of the matter and has held that the suits filed by the Chairman on behalf of the Public Trust is competent.

(2.) THE learned Counsel for the petitioners relying upon the judgment of this Court in the case of Nagar Wachan Mandir, Pandharpur versus Akbaralli Abdulhusen and Sons and others reported in 1994 M.L.J. 280 urged that in relation to society registered under the Societies Registration Act as also the Trust registered under the Bombay Public Trust Act it is necessary that either all the trustees of such Trust or Society join for filing a civil suit or these has to be provision in the constitution of the Trust authorising one of the office bearers to institute a suit or there has to be resolution passed by the Trust authorising one of the office bearers to institute the suit. In the submission of the learned Counsel as in the present cases, the plaintiff has produced neither the constitution of the Trust which contains provision authorising the Chairman to file a suit on behalf of the trust, nor has the plaintiff produced a resolution of the trust authorising the Chairman to file the present suit and therefore in the submission of the learned Counsel, the institution of the suit itself is incompetent and therefore no decree could have been passed in such a suit which is not properly instituted. The learned Counsel appearing for the respondent urged that the appellate Court has rightly held that because the landlord-trust is also a society registered under the Societies Registration Act, the Chairman can file a suit. He however did not urge that, the tenants were not entitled to raise this point because as observed by the appellate Court, no issue in this regard was framed by the trial Court. He also did not say that he can produce a copy of the constitution of the trust, or the resolution of the trustees containing a provision authorising the Chairman to file these suits. The case of the trust, appears to be that the Chairman is entitled to file the suit on behalf of the trust because of his office and the provision in the constitution of the trust and no resolution of the trustees is necessary to authorise him to file the suit. However, it is to be seen here that this Court in its judgment in the Nagar Wachan Mandir, Pandharpur has considered not only the case of the public trust registered under the Bombay Public Trust Act but also of society registered under the Societies Registration Act. The precise argument made by the learned Counsel for the respondent is considered by this Court in its above referred judgment in paragraph 5. This Court has held that in terms of provisions contained in Section 2(13) of the Bombay Public Trusts Act, which defines the public trust, every society registered under the Societies Registration Act is included in the definition of the Public Trust. It is further to be seen here that even according to the provisions of Section 6 of the Societies Registration Act, a society can sue in the name of President, Chairman, or Principal Secretary or Trustee as may be determined by the rules and regulations of the society. In default of such determination, in the name of such person as shall be appointed by the governing body for the action. Therefore even according to this provision there has to be a provision made in the rules and regulations of the society authorising either the Chairman, President or Principal Secretary or Trustee to sue on behalf of the society and in the absence of any such determination there has to be a resolution passed by the governing body authorising the person to sue on behalf of the society. In the present case neither any provision in the constitution or rules and regulations of the society has been pointed which authorises the Chairman to file the present suit nor is there any resolution of the governing body placed on record authorising the Chairman to file the suit. It is further to be stated here that only witness examined on behalf of the Trust by name Shri Madhav Deshpande has said that the suit has been filed through Shri B.N.Jamdar, only because he is the elected Chairman. In my opinion, being elected Chairman of the Executive Council of the society or trust is not enough for being entitled to institute a suit on behalf of the society or trust. In my opinion the law laid down by this Court in this regard in its judgment referred to above is absolutely clear. Therefore in my opinion as the plaintiff failed to establish that the suit was properly instituted, no decree could have been passed in the suit that have been passed.

(3.) IN the result, therefore, petitions succeed. The orders passed by both the courts below impugned in these petitions are quashed and set aside. Rule made absolute accordingly with no order as to costs.