D.M. Deshpande & Ors Vs. Shri Janardhan Kashinath Kadam  INSC 537 (12 November 1998)
V. Manohar, A.P.Misra
appellants 1 to 3 are the trustees of Appellant No.4 which is a public turst
registered under the Bombay Public Trusts Act, 1950. The second respondent is a
former trustee of the said trust while the first respondent claims to be a
tenant of the lands belonging to the said trust.
land in dispute is Survey No. 14 situated at Warud Walidatpur, Yavatmal which
belongs to the said trust. The present proceedings arise from an order in
Revision passed by the high Court in Execution Proceedings.
Deputy Charity Commissioner by his order dated 17th of January 1975, framed and
settled a scheme for the management of the said trust and appointed certain
second respondent, who had throughout acted as a trustee of the said trust was
also appointed as one of the trustees under the said order. The scheme was
thereafter amended by the Charity Commissioner by his order dated 24th of Oct. 1980
in suo motu proceedings. He ordered substitution of certain new trustees by
removing earlier trustees.
second respondent, by this order was removed as a trustee and he was directed
to handover possession of the trust property as well as management of the trust
to the trustees appointed under the order of 24th of Oct., 1980.
the second respondent did not handover possession of the properties of the said
trust which consisted o fthe said land bearing Survey No. 14 and also did not
handover managment of the said trust, the trustees moved the Charity
Commissioner. Chandrapur. The Assistant Charity Commissioner by his order dated
19th of July, 1984 held that the scheme which was framed by the order of 17th
of January, 1975 and modified by the order of 24th of Oct., 1980 was a decree
under the provisions of Section 50A(4) of the Bombay Public Trusts Act, 1950.
Therefore, the trustees should ask for execution of the scheme as a decree.
the present trustees i.e.appellents 1 to 3 who were the trustees at the
material time filed a Regular Execution Application No. 98/84 in the Court of
the Civil Judge, Senior Division, Yavatmal against the respondents praying for
cessation of the said scheme and asking for possession of land bearing Survey
No. 14 from the respondents. On notice being issued, the respondents appeared
in the Execution Proceedings. The respondents in the Execution Proceedings
filed joint application dated 17th of January, 1985 being Exhibit No. 8. In the
application filed jointly on behalf of both the respondents the following
statement was made in Paragraph 2, "That the applicants did not obtain any
decree of Competent Court against the non-applicants are the present appellants
1 to 3. Again in paragraph 4 of this application it is stated inter-alia,
"moreover the non-applicant No. 2 is a tenant over the said field Survey
No. 14 of Walidatpur and he is entitled to retain possession of the said land
till the eviction order from Tenancy Court. Even the District Court has no
jurisdiction to try any suit for possession against him". There are no
particulars mentioned in this application as to when this alleged tenancy was
created in favour of non-applicant No. 2 that is to say, the present 1st
respondent. No date of creation of tenancy has been mentioned; nor is it
mentioned as to who created this tenancy in favour of the 1st respondent or how
this tenancy came into existence. Even the quantum of rent payable is not
mentioned. No particulars are given about this alleged tenancy in Exhibit 8.
The present appellants in their reply denied any tenancy in favour of the 1st
respondent. They pointed out that the first respondent is the brother-in-law of
the ex-trustee-second respondent and the tenancy was being claimed by both the
respondents only to defraud the trust of this property. It was also submitted
by the appellants that since Respondent No. 2 was removed as a trustee of the
said trust an attempt was being made to claim right over the trust property in
the form of an alleged tenancy in favour of the brother-in-law of the removed
trustee - Respondent No.2.
application of the respondents was rejected by the Executing Court by its order of 3rd of May. 1985.
the decree was executed and on 15.6.85 the trust has taken possession of the
1st respondent filed a Review Application before the Executing Court which was rejected by the Executing Court by its orders of 2nd July, 1985. An appeal was filed by respondents
from the order of 3.5.85 and 2.7.85. It was dismissed by the District Judge by
his order of 6.8.85.
the 1st respondent filed a Civil Revision Application before the High Court. By
the impugned judgment and order, the High Court has upheld the submission that
the scheme could be validly executed as a decree. However, the Court went on to
hold that the issue of tenancy arises and should be referred to the Tehsildar
under Section 125 of the Bombay Tenancy and Agricultural Lands (Vidharbha
Region) Act, 1958. The High Court has further directed that the trust should
handover possession of the said land to the 1st respondent.
present appeal has been filed by the appellants challenging that portion of the
order of the High Court which directs the framing of an issue relating to
tenancy of the 1st respondent and directing handing over of possession of the
trust property to the 1st respondent.
been submitted by the appellants that the entire proceeding started by the
respondents in Execution, claiming tenancy is a collusive proceeding between
the former trustee and the 1st respondent, who have joined hands to prevent the
present trustees from obtaining possession of the trust property. It is also
submitted that no material particulars relating to this alleged tenancy of the
1st respondent have been submitted anywhere in the application (Exhibit 8)
before the Executing to this alleged claim of tenancy, on issue could have been
framed on referred to the Tehsildar. A bare statement claiming tenancy is not
enough for the purpose of raising an issue relating to the alleged tenancy of
the 1st respondent. The appellants have relied upon Order 6 Rule 11 of the
Civil Procedure Code which requires that every pleading shall contain a
statement in a concise form of material facts on which the party pleading
relies for his claims or defence. In the absence of any concise statement of
material facts, the mere raising of a plea of tenancy is not enough for the
purpose of raising an issue on the question.
counsel for the appellants has relied upon three decisions in support of his
contention that a vague plea does not justify an issue being framed. In this Bishun
Narain Inter College & Others (1987 (2) SCC 555, where the. Court has held
that all necessary and material facts should be pleaded by the party in support
of the case set up by it. In the absence of pleading, evidence if any produced
by the parties cannot be considered. The object and purpose of a pleading is to
enable the adversary party to know the case of the opponent. In order to have a
fair trial it is imperative that the parties should state the essential
material facts so that the other party may not be taken by surprise. The Court
has, however, cautioned against a pedantic approach to the problem and has
directed that the Court must ascertain the substance of the pleading and not
the form, in order to determine the case. The respondent have emphasised latter
observations. In the present case, however, no material in support of the plea
of tenancy has been set up anywhere in any form. In the case & Others (AIR
1982 BOMBAY 491), the Court observed that before a reference to the Mamlatdar
for deciding the issue of tenancy under the Bombay Tenancy and Agricultural
Lands Act, 1948 is made the alleged tenant must disclose in his pleadings,
details about the tenancy and the exact nature of the right which is claimed by
him. An issue of tenancy cannot be raised on a vague plea.
in an earlier case of Pandu Dhondi 368. the High Court has observed that when inspite
of particulars being asked for a Vague plea is made by the defendant contending
that he is a tenant of the land the Court should hesitate to frame such an
issue on such a vague plea. unless the defendant is able to give particulars
showing the time when the tenancy was created, the person by whom it was
created and the terms on which it was created.
in that case since an issue regarding tenancy had already been raised, it was
obligatory for the Court to refer this issue to the authorities under the
therefore, held that the issue had to be so determined.
present case, on particulars have been given by the 1st respondent or the
second respondent relating to this tenancy-how it was created, when it was
created and the terms thereof. Learned counsel for the respondents, however has
relied upon an order of the Agricultural Lands Tribunal dated 27.2.71 which was
passed in suo motu proceedings taken under Section 49A of the Bombay Tenancy
and Agricultural Lands (Vidharbha Region) Act, under which proceedings for
transfer of ownership to the alleged tenants of whom the 1st respondent was
one, were dropped on the ground that properties belonging to the public trust
were exempted under Section 129 of the said Act. We fail to see how this will
help the 1st respondent because the question whether he was in fact a tenant
over the said land or not, was not examined in those suo motu proceedings since,
in any event the lands of the said trust were exempted from the operation of
Section 37 of the said Tenancy Act.
this view of the matter the Executing Court
rightly rejected the objections of the respondents and handed over the
possession of the trust lands to the trust on 15.6.85. The District Judge has
also dismissed the appeal in a lengthy judgment. The High Court in Revision, in
these circumstances ought not to have interfered in the absence of any factual
basis in support of the plea of tenancy raised by the 1st respondent.
appeals are therefore allowed and the impugned order of the High Court, insofar
as it directs framing of an issue relating to the tenancy of the 1st respondent
and directs this issue to be decided by the Tehsildar, is set aside. The
direction in the impugned order directing possession of the trust properties to
be handed over to the 1st respondent is also set aside. There will be on order
as to costs.