Murti Shri Durga Bhawani (Hetuwali) Trust, (Regd.) vs Harbhajan Singh

J.V. Gupta, J.—This is plaintiff''s second appeal whose suit for possession was decreed by the trial Court, but dismissed in appeal.

The plaintiffappellant is a registered trust vide deed dated August 11, 1972, copy, Exhibit, PW. 9/1, known as Murti Shri Durga Bhawani Trust, (hereafter referred to as the Trust). It was alleged that previously Sarv Shri Har Sarup, Bhagwat Sarup, Anand Sarup and Shiv Kumar, were the owners of the land comprised in khasras Nos. 4834, 4935 and 4833, situated in the area of the kanal kasba and that they had obtained the decree for perpetual and mandatory injunctions on July 30, 1968, copy, Exhibit B. 23, against the Municipal Committee, Karnal. The possession was delivered to the decreeholders through the execution of the decrees. It was pleaded that the defendants besides Sunder Lal and Diwan Chand admitted the rasta, in dispute, in the South measuring 15'' in width abutting on the G.T. Road, Karnal leading to the land belonging to the Haryana Roadways and the temple, in the execution petition which was decided on March 2, 1976. Later on, there was litigation with the Haryana Roadways in Civil Suit No. 199/76/50 FK of October 11, 1972, decided on September 9, 1976, on a compromise. Therein, the State of Haryana admitted that they shall not interfere with the suit in dispute. According tot the Trust, previously the disputed site was a rasta and was being used for the path way to the temple and the godowns of the Trust and the defendants were in possession of certain properties owned by the Haryana Roadways which it got vacated from them on November 15, 1977 in execution of the orders passed under the Public Premises (Eviction of Unauthorised Occupants) Act. While executing that order, certain wooden planks and material lying on the property of the Haryana Roadways were thrown on the property, in dispute owned by the Trust. When the Trust objected, the defendants agreed to remove the same, but they did not do so. The plaintiff was the owners of the suit property and that the defendants had no right, title or interest therein. They were in illegal possession of the same. Therefore the plaintiff field the present suit on November 11, 1980, for possession and also for the recovery of Rs. 1,700/ as compensation for use and occupation at the rate of Rs. 50/ per month. The suit was contested inter alia on the plea that the Trust had no concern with the suit property and that the same was in possession of defendant No. 3, Harbajan Singh, as the owner and the decision in the previous litigation with the Municipal Committee were not binding upon them as they wore not a party thereto. It was also alleged that defendant No. 3 was in possession of the suit property for the last more than 28 years and that his possession had been adverse throughout and thus, he had become the owner by adverse possession. The trial Court found that the Trust was registered on January 14, 1972, under the Societies Registration Act. Therefore, it was proved that it was a duly registered Trust. The plea of the defendants that they had become the owners of the suit property by adverse possession was negatived. It was also held that the plaintiff was the owner of the suit property which was a sort of Khasra No 4833 qua the share of Shiv Kumar, trustee, as a cosharer. In view of these findings the plaintiff''s suit for possession was decreed, and the relief for Rs. 1,700/ by way of compensation was declined on the ground that there was no evidence on the file to prove the rental value of the suit property. Dissatisfied with the same, both the parties filed two separate appears. The learned Additional District Judge affirmed the findings of the trial Court on all the issues, but reversed the finding under issue No. 3 whereby it was held by the trial Court that the suit land vested in the Trust. According to the learned Additional District Judge, the Trust did not produce necessary documentary evidence to show that Shiv Kumar or any other person creating the Trust was a cosharer in Khasra No. 4833, which formed a part of the trust property. In view of the said finding, the plaintiff''s suit was dismissed. Dissatisfied with the same, the Trust has filed this second appeal in this Court.

The learned counsel for the appellant contended that in the earlier litigation between Har Sarup, Bhagwat Sarup, Anand Sarup and Shiv Kumar who created the Trust later on and the Municipal Committee, Karnal, it was held that they were the owners of the suit property which included Khasra No. 4833, which is in dispute in the present suit. Copy of the judgment dated July 30, 1965, therein, is, Exhibit B. 23, on the record. Thus, argued the learned counsel, in view of the said judgment, the view taken by the trial Court was correct and it was rightly held that the Trust was the owner of the suit property, but the said finding has been reversed in appeal arbitrarily and on surmises and conjectures. According to the learned counsel, the defendants having been found to be the trespassers by both the Courts below, having no right or title in the suit property, were liable to be ejected in view of the findings given in the copy of the judgment, Exhibit B. 23. It was also contended that if Shiv Kumar was held to be a cosharer in Khasra No. 4833 the suit by the Trust was competent as a suit by one cosharer for possession against trespasser in respect of entire property (irrespective of his own share in property) without impleading other cosharers was maintainable. In support of this contention, the learned counsel relied upon the Full Bench judgment of this Court in Ajmer Singh v. Shamsher Singh, 1983 Punjab Law Journal 585. The learned counsel also made a reference to the copy of the order of the Collector, dated September 8, 1975, Exhibit B.9, whereby the mutation was sanctioned in appeal in favour of the Trust in respect of the suit property. According to the learned counsel, in compliance of the said order of the Collector the mutation was really sanctioned on December 31, 1985. A copy of the said mutation was produced in this Court by way of additional evidence vide Civil Miscellaneous Application No. 63C of 1986.

On the other hand, the learned counsel for the defendant submitted that the judgment, Exhibit B. 23, was of no consequence as regards the rights of the defendant because he was not a party thereto. Any finding given therein was not binding upon him. Reliance in this behalf was placed by the learned counsel on Ramaji Batanji v. Manohar Chintaman, A.I.R. 1961 Bombay 169. It was also contended that the onus was on the plaintiffs to prove that they were the owners of the suit property. It did not shift on the defendants even if they claimed ownership thereof by adverse possession. In support of this contention, the learned counsel relied upon Abudlla v. Kunhammad, A.I.R. 1960 Kerala 123. According to the learned counsel, the persons, including Har Sarup who created the Trust were not the owners of Khasra No. 4833 which is now in dispute. Therefore, the Trust could not claim possession from the defendants who are admittedly in possession of the suit property though they might not have acquired ownership by adverse possession.

I have heard the learned counsel for the parties and have also gone through the relevant evidence on the record.

Admittedly, Har Sarup and others who created the Trust later on filed a suit against the Municipal Committee, Karnal, for the grant of the permanent injunction. One of the issues in that suit was whether the plaintiffs were the owners of the suit property or any part of it. It was held therein that Khasra No. 4834 belonged to the plaintiffs and Khasra Nos. 4833 and 4835 belonged to Shiv Kumar, plaintiff No. 4, as a cosharer and thus, the two Khasras Nos. did not vest in the defendant Committee. Consequently, the plaintiffs suit was decreed on July 30, 1965. In the year 1975, Sunder Dass Ahuja and Gopal Singh one of the defendants in the present suit filed the suit for the grant of the permanent injunction against Bhagwat Sarup and others including the Municipal Committee, Karnal. The prayer in the said suit was that the defendants be restrained from interfering with their peaceful possession and from dispossession them in execution of the decree which the defendants had obtained in Regular Second Appeal No. 856 of 1966 from the High Court. The said suit was decreed on September 30, 1981, vide copy, Exhibit D.2, with the observations,

"A decree for permanent injunction is passed in favour of the plaintiffs and against the defendants restraining the defendants from interfering into the possession of the plaintiffs except in due course of law."

The plea of the plaintiffs in that suit that they had become owners by adverse possession was negatived.

The main thrust of the learned counsel for the respondent was that in view of the judgment, copy, Exhibit D.2, the earlier judgment and decree passed against the Municipal Committee, Karnal, copy, Exhibit B. 23, was rendered null and void was of no value to prove the title of the Trust. This contention of the learned counsel has no substance because in the earlier litigation against the Municipal Committee, it was held that the plaintiffs therein were the owners of the suit property including khasra No. 4833. In the said suit, the Municipal Committee claimed its ownership qua that property, but failed. The suit filed by the defendant vide copy of the judgment, Exhibit D.2, was decreed only to the extent that the defendants could be ejected in due course of law and as a matter of fact on that account, the plaintiffs had to file the present suit. Once it is found as a fact and has been held by both the Courts below that the defendants were the trespassers on the suit land, they were liable to be evicted by the Trust being the owner of the suit property. The very fact that the defendants claimed ownership by adverse possession prima facie proves that they admitted the ownership of the plaintiffs, but claimed the ownership by adverse possession being in possession prima facia proves that they admitted the ownership of the plaintiffs, but claimed the ownership by adverse possession being in possession thereof. The approach of the lower appellate Court in this behalf was wholly wrong, illegal and misconceived whereas the trial Court had rightly come to the conclusion that the Trust was the owner of the suit property in view of the judgment, copy, Exhibit B. 23. The observations of the trial Court in this behalf, read as under :

"The right of ownership as cosharer of Shiv Kumar has been established vide judgment Exhibit B. 23, and furthermore there is no hurdle now to presume the plaintiffTrust as owner of the suit property as cosharer as the defendants could not prove their any type of right in the suit property. They are proved to be only trespassers over the suit property. The report of the Local Commissioner of Retired Naib Tehsildar Munshi Ram Ex. PW 9/3 site plan Ex. PW 9/4 and PW 9/5 is in my opinion sufficient evidence on the file to presume that the suit property is comprised in Khasra No. 4833 as in the demarcation report Ex. PW 9/3 and documents Ex. PW 9/4 and PW 9/5 it is mentioned that vacant space 15'' wide exits in the south of the Guru Nanak Furniture House."

Since the persons who created the Trust have already succeeded in proving their ownership against the Municipal Committee, the judgment, Exhibit B. 23, is a relevant piece of evidence to prove the ownership of the Trust and the defendant being trespassers could only succeed if they could prove their title by adverse possession. In view of the Full Bench judgment of this Court in Ajmer Singh''s case (supra), even if Shiv Kumar was a cosharer in Khasra No. 4833, which he later on transferred to the Trust, the Trust as such was competent to file the present suit to oust the defendants who were trespassers. The rulings relied upon by the learned counsel for the defendant have absolutely no applicability to the facts of the present case. Moreover, vide order of the Collector dated September 8, 1975, copy, Exhibit B. 9, the mutation was ordered to be sanctioned in appeal in favour of the Trust in view of the judgment, Exhibit B. 23. Thus, there was evidence on the file to prove that the Trust had become the owner of the suit property in view of the judgment, copy Exhibit B. 23.

Consequently, this appeal succeeds and is allowed. The judgement and decree of the lower appellate Court are set aside and that of the trial Court decreeing the plaintiff''s suit for possession of the site, in dispute, are restored with costs.