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Judgment
Rule. Rule made returnable forthwith. Heard finally with the consent of learned counsel appearing for the parties.
The present petition challenges judgment and decree dated 12.11.2020 passed by the learned District Judge-1, Amravati in Regular Civil Appeal No.135/2014, whereby the appeal preferred by the petitioner came to be dismissed, as well as challenges the judgment and decree dated 30.07.2014 passed by the learned 3rd Joint Civil Judge, Junior Division, Amravati in Small Cause Civil Suit No.132/2002.
Facts as emerging from the present petition is as follows :
A property bearing No.589(3), Ward No.59, situated on Nazul Plot No.270, out of Sheet No.14-A, admeasuring about 280 sq.ft., at Badnera, District Amravati was owned by a private family Trust in the name and style of "Balaji Sansthan", which was constituted by one Brijlal Ramniwasji Joshi, uncle of the petitioner.
The suit property had been orally gifted to Balaji Sansthan in the year 1880 by Shri Devi Bhagatram respondents were occupying the premises as monthly tenants and the said Sansthan was created for the benefit of the members of the family of Brijlal Joshi. The Trust was stated to comprise Brijlal Joshi, the widow of his deceased brother, namely Shankarlal Ramniwasji Joshi, his two sons, namely Rajesh and Ajay, Rajesh's wife and their two children.
The respondents were occupying the premises as monthly tenants, however, they defaulted in payment of rent from March 1997, which resulted in institution of Small Cause Civil Suit No.85/1999 by Brijlal Joshi and the said Sanstha. Consequently, a compromise was reached between the parties admitting in the terms of compromise that the suit property was owned by the Sanstha and that the members of the Sanstha were their landlords. The compromise decree was passed on 03.02.2002.
Thereafter, Small Cause Civil Suit No.132/2002 was instituted by the said Sanstha and Brijlal Joshi seeking possession of the suit premises on the ground of bonafide requirement. It was pleaded that the petitioner did not have any existing business and that although he had conducted business earlier, the same had been discontinued due to losses. It was further pleaded that he had worked with Narendra Solex, but such employment was not permanent and his family members were unemployed. It was also asserted that the agricultural land owned by them was not suitable for cultivation and that neither Rajesh Joshi nor his relatives possessed any alternate premises from which the proposed business of lodging and boarding could be conducted. The respondents, in their written statement, disputed the existence and character of the alleged private family Trust and contended that the suit premises belonged to a Trust and were required to be used for charitable purposes. They also disputed the alleged bonafide requirement and the absence of alternate accommodation.
During the trial, the present petitioner was examined as a witness for the plaintiffs, as Brijlal Joshi, being a senior citizen and unable to attend the Court, had executed a power of attorney in his favour. His examination-in-chief was recorded on 26.07.2003. The respondents examined one Himmat Khan as DW-1 and Jamal Shah as DW-2. In his cross-examination, the said Himmat Khan admitted that the land of the said Sanstha was not being used for any public purpose and also admitted the compromise entered into between the parties. Furthermore, one Jamal Shah in his examination-in-chief admitted that he was working as a Stenographer in the Court. However, by judgment dated 29.08.2003, the learned 9th Joint Civil Judge, Junior Division, Amravati dismissed Small Cause Civil Suit No.132/2002, holding that the plaintiffs had failed to establish their bonafide requirement. Being aggrieved, the plaintiffs preferred Regular Civil Appeal No.268/2003.
During the pendency of the said appeal, Brijlal Joshi expired on 03.12.2003. A will, dated 11.09.2002, was executed revoking the alleged trust and bequeathed his property, including the suit premises, in favour of the present petitioner. Consequently, by an application dated 03.01.2004, petitioner sought deletion of the name of Brijlal Joshi and his substitution as appellant on the ground that he was the legal heir and beneficiary under the Will. The learned District Judge-1, Amravati, by judgment dated 16.03.2011, in Regular Civil Appeal No.268/2003, held that the bonafide requirement of the petitioner had been established. However, the matter was remanded to the Trial Court since no specific issue regarding comparative hardship had been framed or adjudicated. The Appellate Court directed that the question of comparative hardship be considered after giving the parties an opportunity to lead evidence.
Pursuant to the remand, the petitioner filed an application under Order VI Rule 17 of the Code of Civil Procedure seeking amendment of the plaint so as to incorporate detailed pleadings regarding his bonafide requirement and comparative hardship. The application was allowed by order dated 09.11.2011. However, by judgment dated 30.07.2014, the learned Civil Judge, Junior Division, Amravati dismissed the suit. The Court held, inter alia, that since the suit property had allegedly been gifted to the said Sanstha, the same could not be treated as the private property of deceased Brijlal Joshi, who had subsequently bequeathed it in favour of the petitioner. The Court further held that Balaji Sansthan could not be treated as a private family Trust of the deceased Brijlal Joshi and, therefore, the Will relied upon by the petitioner could not confer title upon him in respect of the suit property.
Aggrieved by the aforementioned, the petitioner preferred Regular Civil Appeal No.135/2014 before the District Court, Amravati. During the pendency of the said appeal, the appellants sought permission under Order XLI Rule 27 of the Code of Civil Procedure to produce a report obtained under the Right to Information Act concerning the status of Balaji Mandir Trust. The said report indicated that there was no record showing registration of the Trust as a public Trust and further recorded that possession of the property of the said Sanstha at Badnera was with the petitioner and that the property had been bequeathed to him under the Will.
The Appellate Court, however, held that there was no satisfactory evidence to establish that the deceased Brijlal Joshi possessed the authority to revoke or extinguish the Trust, and observed that the Trust deed would have been the best evidence on that issue. It further held that even assuming that the deceased Brijlal Joshi had authority to revoke the trust, he could not have bequeathed the trust property as his personal property. Accordingly, by judgment and decree dated 12.11.2020 passed in Regular Civil Appeal No.135/2014, the appeal came to be dismissed, thereby giving rise to the present petition.
I have heard Mr. Jaideep Chandurkar, learned counsel for the petitioner and learned counsel for the respondent Nos.3, 4(a), 4(b) and 4(d).
The learned counsel for the petitioner submits that the petitioner was the owner of the said property as highlighted by the will deed filed on record. He further states that as per the Right to Information application, the said Trust is not a public Trust but a private one, which was eventually bequeathed by one Brijlal Joshi in favour of the present petitioner.
Furthermore, it is submitted by the learned counsel for the petitioner that the petitioner had bonafide requirement of the property as he was temporarily employed and other family members were unemployed. The petitioner intend ends to set up a business of lodging and boarding and thus in requirement of the entire property, as also, the petitioner will undergo comparatively greater hardship if the property is not restored back in his possession as he does not have a permanent source of income unlike the Respondents who have a permanent source of income and another property in the same vicinity.
Furthermore, the respondents admitted that the plaintiffs are the landlord of the said property and the same can be seen from the compromise deed filed on record and thus the petitioner has rightful claim.
Per contra, the learned counsel for the respondents submits that the present writ petition is devoid of merit and does not disclose any ground warranting interference with the judgments and decrees passed by the Courts below is essentially an attempt to seek re-appreciation of evidence and interference with concurrent findings of fact recorded by the Courts below. The learned Trial Court as well as the learned First Appellate Court have held that the petitioner failed to establish his lawful ownership or entitlement to recover possession of the suit premises. The Courts have also concurrently held that the alleged bonafide requirement pleaded by the petitioner was not satisfactorily established.
The petitioner's own case is that the suit property was orally gifted in the year 1880 by Devi Bhagatram to Balaji Sansthan, which according to the petitioner was constituted as a Trust. Once the property is asserted to have vested in the Trust, the same could not thereafter be treated as the personal property of the trustee or its manager in the absence of cogent evidence establishing such authority. No original Trust Deed has been produced by the petitioner to demonstrate the constitution, terms, nature or revocability of the alleged Trust.
It is submitted that the petitioner has failed to establish that the suit property was his personal property or that he acquired any valid title thereto. There is also no satisfactory evidence showing that late Brijlal Joshi was empowered to extinguish or revoke the Trust or to deal with its property as his personal estate. The Courts below have, therefore, rightly rejected the petitioner's claim of ownership.
I have appreciated the contentions canvassed by the learned counsel for the respective parties and also gone through the record which includes the judgment of the trial Court as confirmed by the Appellate Court. The counsel for petitioner has placed reliance on a compromise decree in Small Causes Civil Suit No. 85 of 99 wherein according to him the ownership of the petitioner is admitted. However, a bare perusal of the said compromise decree would reveal that the defendants therein have admitted that plaintiff No.1 is a private Trust of which plaintiff No.2 is the Karta and suit premises is owned by the plaintiffs who are landlords of defendants. But it is relevant to point out that in the said suit Shri Balaji Sansthan was the plaintiff No.1 while Shri Brijlal Ramnivas Joshi was the plaintiff No.2. It, therefore, follows that if any ownership is admitted that is of Balaji Sansthan and Brijlal Ramnivas Joshi. The petitioner cannot stretch this analogy to submit that the defendants herein have admitted his ownership.
Moving further as can be seen from the judgment of the trial Court i.e. 3rd Joint Civil Judge, Junior Division, Amravati, after remand, the said Court has framed issue regarding comparative hardship in granting or refusing a decree of possession. This is in addition to the issue of bonafide need. It has taken into consideration the admissions in cross-examinations which are elucidated in the evidence of PW1 i.e. the petitioner herein. It has categorically recorded a finding that the plaintiff i.e. the petitioner herein has admitted that the suit premises is not a personal property of deceased Brijlal Joshi and it belongs to Balaji Sansthan a private Trust. This admission assumes significance since the defendants right from the beginning have come up with a specific plea that the petitioner is not the owner and the suit premises belongs to said Balaji Sansthan. The trial Court in a detailed judgment has correctly appreciated various admissions in cross-examination of the plaintiff and have come to a conclusion that the suit premise is not the personal property of deceased Brijlal Joshi.
As far as the question regarding right of said Brijlal Joshi to bequeath the property which was donated to Balaji Sansthan and not to him, the trial Court has recorded a correct finding that said Brijlal Joshi had no right to do so. Furthermore, on the basis of documents on record the trial Court has recorded a finding that there is no evidence that said Brijlal Joshi is the only settler of Balaji Sansthan and he created the same for the benefit of the family members including the present plaintiff. By appreciating all these material on record, it has recorded a finding that the plaintiff cannot prove his bonafide need, since he cannot claim ownership on the basis of Will which the testator has no right to execute.
As far as additional issue regarding comparative hardship is concerned, it has correctly recorded a finding that the aspect of said comparative hardship will arise only when bonafide need is established. Since in the present case the bonafide need itself is not established, there would be no question of causing hardship to the plaintiff i.e. the petitioner herein.
The Appellate Court while considering all these facts has concurred with the findings of the trial Court. As far as the contention regarding limited remand is concerned it has also recorded that paragraph 17 of the judgment of the Appellate Court while remanding the matter clearly shows that the said Court did not consider the merits and so it cannot be said to be a limited remand. It, therefore, negated the contention of the appellant that the question of bonafide need was already answered in his favour.
As far as deciding the appeal on merits is concerned, the Appellate Court has noted in paragraph 14 that the petitioner is claiming ownership of the suit property in view of the Will at Exhibit-91 and after careful perusal of the Will and taking into consideration the power of the trial Court while adjudicating upon the Will has recorded a finding that the deceased Brijlal had no power to execute the same. The Appellate Court has also assessed the evidence of PW 2 Narendra who was an attesting witness to the said Will.
As can be seen from the judgment of the Appellate Court, it has recorded a finding that since the Trust Deed is not on record, it cannot be said that in what contingencies the said private Trust can be revoked. It has, however, referred to Section 77 of the Indian Trusts Act, 1882 which speaks about various modes of extinguishment of a private Trust. It has also went on to record a finding on the basis of material on record that even for the sake of assuming that Brijlal Joshi had a power to extinguish/revoke the Trust, then the question would arise as to whether he could have bequeathed the suit property in favour of the plaintiff by executing the Will. On this question it has analyzed the evidence of PW1 wherein certain admissions are given. On the basis of the said admissions, the Appellate Court has recorded a finding that the suit property is the property of Shri Balaji Sansthan and not the personal property of the original plaintiff No.1Shri Brijlaj Joshi. As a sequel the said original plaintiff No.1 i.e. Brijlaj Joshi had no authority to treat the suit property as his personal property and bequeathed the same in favour of the present petitioner.
As far as the contention of the petitioner that even if the Will is taken out of consideration still in view of the provisions of the Hindu Succession Act, 1956, the present petitioner being the legal representative of the original plaintiff is entitled to succeed the property, the Appellate Court has negated the said submission since it is made assuming that the suit property was the private and personal property of the original plaintiff No.1 Shri Brijlaj Joshi. Since the original owner of the said property was the plaintiff No.2 Shri Balaji Sansthan and not plaintiff No.1, there is no question of the present petitioner succeeding to the said property by Will or otherwise. Furthermore, as far as question of bonafide need is concerned, the Appellate Court has recorded a cogent finding that on the basis of material on record it cannot be said that the petitioner i.e. the plaintiff Rajesh was needing the premises bonafidely. The Appellate Court has recorded in Para 29 regarding the various omissions in the evidence of the plaintiff which were necessary to prove the bonafide need. The said findings recorded by the Appellate Court cannot be said to be perverse in any manner.
Taking in consideration the overall aspects of the matter as discussed the supra, I am of the considered opinion that there is no perversity in the concurrent findings of the trial Court as confirmed by the Appellate Court. The said findings are after correct appreciation of the evidence on record and cannot be said to be amenable to vice of perversity. As is the settled principle of law that the writ petition challenging concurrent finding of facts is not an appeal in disguise and, therefore, those findings can only be interfered with if they are shown to be perverse.
As there is no merit in the petition, the same is liable to be dismissed. The petition is dismissed. Rule is discharged.