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PETITIONER: SHRI D.M.DESHPANDE & ORS.

       Vs.

RESPONDENT: SHRI JANARDHAN KASHINATH KADAM (DEAD) BY LRS.

DATE OF JUDGMENT:       12/11/1998

BENCH: SUJATA V. MANOHAR, A.P.MISRA

ACT:

HEADNOTE:

JUDGMENT:  ORDER The 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. The 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. The 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 trustees. The 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.  The 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. Since 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. Accordingly, 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

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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. This application of the respondents was rejected  by the  Executing  Court  by  its  order  of  3rd of May. 1985. Thereafter, the decree was executed and on 15.6.85 the trust has taken possession of the said land. 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. Thereafter,  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. The  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. It  has  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

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(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. Learned  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 connection a reference was  made  to  Ram  Sarup  Gupta  Vs. 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 of M/s Nilesh Construction Company & Anr.  Vs.  M/s Gangubai & 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. Similarly   in  an  earlier  case  of  Pandu  Dhondi Yerudkar Vs. Ananda Krishna Patil reported in 1947 (76)  BLR 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. However, 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  Tenancy  Act. The  Court,  therefore,  held  that  the  issue had to be so determined. In the 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

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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. In  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. The 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.