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PETITIONER: MAROTI

       Vs.

RESPONDENT: TULSIRAM  & ANR.

DATE OF JUDGMENT15/11/1994

BENCH: RAMASWAMY, K. BENCH: RAMASWAMY, K. VENKATACHALA N. (J)

CITATION:  1994 SCC  Supl.  (3) 746 JT 1995 (2)   371  1994 SCALE  (4)1046

ACT:

HEADNOTE:

JUDGMENT: ORDER 1.   Substitution allowed. 2.   This  appeal by special leave arises from the  judgment and decree of the Single Judge- of the High Court of  Bombay at Nagpur Bench in S.A.No.329 of 1967 made on September  11, 1979, The respondent Tulsiram Jagannath Sajo, as a  Managing Trustee  of Hanuman Deosthan, New Shukrawari,  Nagpur,  laid C.S.No.732 372 of  1961  in  the Court of 4th  Joint  Civil  Judge,  Junior Division, Nagpur, for possession.  The suit was decreed but, on  appeal,  that  decree was set aside and  in  the  second appeal,  the decree of the appellate court was reversed  and that of the trial court was restored.  Thus, this appeal  by special leave. 3.   The facts found by the High Court were that one Matadin was  the Managing Trustee till 1921 and on his  demise,  his son  Kanhaiyalal  managed the suit property as  the  Trustee till 1950.  Thereafter, the plaintiff assumed the management of  Trust as a Managing Trustee.  The defendant entered  the suit  property  as  a  tenant of the  Trust  in  1951.   The appellant  contends that he purchased the property from  one Anandrao Bujade, successor on interest of Kanhaiyalal, by  a registered sale deed dated January 12, 1961 and,  therefore, he  being  the  owner  of the  property  cannot  be  ejected therefrom.   It  was also contended that in respect  of  the trust property, if the character of the trust or the  nature of  the  trust is in dispute,  the  appropriate  proceedings would  lie  before  the Authorities  constituted  under  the Bombay Public Trusts Act, 1950.  Though, the trial court had not accepted the case of the appellant, the appellate  court had  accepted  that  the suit did not  lie  as  the  dispute relates to the property of the trust. 4.   The  High  Court went into the entire  controversy  and recorded as a fact that the admission made by the  appellant

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in  the  cross-examination  that he entered  into  the  suit property  on  rent as a tenant from Anandrao Bujade  in  the year  1951  and he also, made an admission  before  the  Mu- nicipal  authorities under Ex.46 that he was the tenant  and the  trust was the owner of the property.  This  constitutes the  admission  made  by the appellant.   In  view  of  that admission, the appellant is estopped from denying the  title of  the plaintiff-trust.  The High Court also  recorded  the finding  that  preceding  the  appellant’s  entry  into  the possession  as a tenant, the trust was in possession  of  it for over 12 years and it was leasing the property to various tenants.  The trust was exercising its right as an owner  of the  property.   The  High Court had  also  found  that  the appellant court had ignored the evidence of PW-1, Ramaji and PW-2-Shionarayan  which  proved that the suit  property  was dedicated  by  Gajjulal  to the Trust.   In  that  view,  it recorded a finding that the appellant had been in occupation of the suit property as a tenant and decreed the suit. 5.Shri V.A. Bobde, learned senior counsel for the appellant, sought  to  contend  that in view of  the  controversy,  the appropriate  steps  required to be taken by  the  respondent were  under s. 1 9 as enjoined under s.50 of the  Trust  Act and  the decision of the authorities under s.79 and  80  are conclusive wherein as it was held by the District Judge that the suit property is not a trust property.  The civil  court had, therefore, lacked jurisdiction to go into the  question whether the properties are trust properties or not.  We find no force in the contention. 6.The  findings  recorded by the High Court  and  the  trial court   were  that  the  appellant  had  entered  into   the possession as a tenant and he is estopped to deny the  title of the trust by operation of s. 1 16 of the Indian  Evidence Act.   Therefore,  his only character is whether he  was  in possession as a tenant or in his own right as an owner.  His contention that he 373 purchased  the property from Anandrao Bujade and  thereafter he  became the owner cannot be gone into in this appeal  for the reason that he admitted in the cross objections that  he was a tenant.  Ex.46 also denies him the right to set up his own  independent title, even if at all the deed was  validly executed,  it  does  not  bind the  trust.   Be  it  whether Anandrao  Bujade’s predecessor, namely, Kanhaiyalal was  the managing trustee of the property or mismanaged the property, since  this  admission is sufficient for  disposal  of  this appeal,  we  do not go into the controversy  raised  by  the appellant.  He then contended that in view of the provisions of the ’--..P. & Berar (Letting of Houses and Rent  Control) Order,  1949, the permission of the competent authority  was not  taken before filing the suit, under clause (13) of  the C.P. & Berar (Letting of Houses & Rent Control) Order, 1949, and  the suit is not maintainable.  The contention  was  not raised in the High Court.  Therefore, we decline to go  into the  question.   Even  otherwise, we find no  force  in  the contention for the reason that the appellant himself set  up his   own  right,  title  and  interest  in  the   property. Necessarily,  the civil suit has to be filed and  the  civil court  alone can go into the controversy, In that view,  the High  Court  has not committed any error of  law  warranting interference.  The  appeal  is  accordingly  dismissed  with costs. 374