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Jivanji Jamshedji Lakdawalla Vs. Burjorji Naserwanji Vakil and ors. - Court Judgment

LegalCrystal Citation
SubjectProperty;Civil
CourtMumbai
Decided On
Judge
Reported in3Ind.Cas.770
AppellantJivanji Jamshedji Lakdawalla
RespondentBurjorji Naserwanji Vakil and ors.
Excerpt:
trespasser - ejectment--right to sue--person in possession of property can sue. - .....of managers had been appointed at surat for the purpose of managing the properties of the parsi anjuman of that place; that the respondents were the present committee, the first respondent being chairman thereof; that the lands in dispute belonged to the parsi anjuman and had been in the management and possession of the respondents. they sought to recover possession in the capacity of managers. they also alleged that the appellant was a mere trespasser and was, therefore, liable to be ejected.2. the first issue in the court of first instance was: 'whether the plaintiffs are the managers of the property of the parsi anjuman of surat.' the appellant applied to the subordinate judge that that issue might be modified by adding to it the words 'appointed lay the parsi anjuman.' the.....
Judgment:

Chandavarkar, A.C.J.

1. The respondents brought this suit to recover possession of the lands in dispute from the appellant alleging that from time to time a Committee of Managers had been appointed at Surat for the purpose of managing the properties of the Parsi Anjuman of that place; that the respondents were the present Committee, the first respondent being Chairman thereof; that the lands in dispute belonged to the Parsi Anjuman and had been in the management and possession of the respondents. They sought to recover possession in the capacity of managers. They also alleged that the appellant was a mere trespasser and was, therefore, liable to be ejected.

2. The first issue in the Court of first instance was: 'Whether the plaintiffs are the managers of the property of the Parsi Anjuman of Surat.' The appellant applied to the Subordinate Judge that that issue might be modified by adding to it the words 'appointed lay the Parsi Anjuman.' The Subordinate Judge thought it was unnecessary to allow the amendment, because, in his opinion, the words proposed to be added were mere surplusage.

3. It is common ground that the appointment of the respondents as a Committee was not by the Parsi Anjuman. The finding of the District Judge is also to that effect. He finds that they and before them their predecessors forming the Committee, of which the respondents are members, were appointed by the Parsi Panohayat in Bombay to administer certain trusts and the appointments had nothing to do with the Parsi Anjuman of Surat. Basing his argument on this finding of fact, Mr. Shah for the appellant contends that the respondents have no right to sue for recovery of the lands in dispute since these admittedly belong to the Anjumm and the respondents are not the Anjuman's nominees. But the District Judge has also found on the evidence that with the acquiescence of the Parsi Anjuman of Surat the respondents have been managing certain properties including the property in dispute, having received them in the year 1846 from one Bhikhaijee who till then held them under and with the authority of the Parsi Anjuman.

4. Now upon those facts found by the learned District Judge it is quite clearthat the respondents are entitled to succeed. Though they are not the owners of the property and though they were not appointed Board of Managers for the purpose of holding this property by the Parsi Anjuman, yet, for sixty years, they have managed the property with the authority and acquiescence of the Parsi Anjuman. There fore the case falls within the principle enunciated by the late Chief Justice of this Court in Navroji Manekji Wadia v. Dastur Kharsedji 'Mancherji 28 13. 20 : 5 Bom. L.R. 745 In that case a similar objection to the title of the plaintiff there was raised but it was disallowed on the following ground: Even if there be difficulty or doubt as to its ownership, it is obvious that there must be some one entitled to protect from improper invasion that, which for brevity, we will call the temple property, and it appears to us that those who can predicate of themselves that they have exercised the management, authority and supervision alleged in the plaint are so entitled.' In the present case the management, authority and supervision of the property have been vested in the respondents since 1846 and that with the knowledge, consent and acquiescence of those who are admitted to be the owners of this property, namely, the Parsi Anjuman.

5. For these reasons the District Judge was right in the conclusions at which he arrived and his decree must be confirmed with costs.

Heaton, J.

6. I also have no doubt that the District Judge who has written a very careful judgment is right in his conclusions.

7. The plaintiffs seek to recover possession from a trespasser. The trespasser seeks to retain possession on the ground that the plaintiffs are not entitled to sue for possession, because, they were not the owners. But it is established in the case that the plaintiffs have actually been in possession for a long period of years, I think, more than thirty years, with the tacit acquiescence of the true owners. If that is not a sufficient title on which to sue a trespasser for possession, it is very difficult to say what is; at least in the case of any claim to possession by any person not an absolute owner.


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