S.M. Daud, J.
1. Plaintiffs, the trustees of the Jewish Cemeteries Trust (JCT) seek alternating reliefs in regard to lands at Grant Road and Haines Road, Bombay.
2. The JCT is a public trust registered as such under the Bombay Public Trust Act, 1950. This trust was looking after the maintenance of two cemeteries of the Jewish Community of Bombay- these being located at Grant Road and Haines Road. The burial ground at Grant Road had been fully occupied. However the ground did not cease to be a cemetery. This was on account of Jewish tenets which hold burial grounds to be sacrosanct and incapable of other uses. Three portions of the cemetery land were set apart, two being leased to Bhagirathibai and the Ahmed Umar Oil Mills respectively. The third was utilised by the trust for the quarters of a care-taker. On or about 6-2-1956 three of the then eight trustees without the knowledge and consent of their co-trustees let out the remaining land to defendant 28 (sometimes wrongly described as defendant 27 but hereinafter referred to as defendant 28) on a rental of Rs. 700/- p.m. and the liability to pay municipal taxes. The lease was renewed on 1-11-1959- again without the knowledge and consent of the other trustees. Neither transaction had the sanction of the Charity Commissioner as required by section 36 of the Bombay Public Trusts Act, 1950 (BPT Act). The lease and renewal were therefore not legal or binding on the plaintiffs. Defendants 5 to 27 as members of defendant 4 were inducted into small patches of the land. Thereupon these defendants had put up structures on which they were doing business in metal scrap.
3. In about 1954 the State Government which is defendant 3 had threatened to resume possession of the Grant Road land. This action was impugned by the plaintiffs through an appeal bearing No. 228 of 1959 before the Maharashtra Revenue Tribunal (MRT). During the pendency of the appeal a settlement was arrived at between plaintiffs, the 1st defendant (BMC) and the 3rd defendant. Amongst other things the settlement (also referred to as consent terms) Provided for the relinquishment of the Grant Road land by plaintiffs for the setting up of a public garden and in lieu thereof their being granted additional land at Haines Road for use as a burial ground. Pursuant thereto, the appeal to the MRT despite the objection of defendant 28 was allowed to be withdrawn by the plaintiffs. The trust made over possession of the Grant Road land to the State Government who in their turn passed it on to the BMC. Neither of them took meaningful steps to evict defendants 4 to 28 or put up a garden on the land. Partly this was on account of writ petitions bearing Misc. Petition Nos. 85 of 1963 and 814 of 1967 against defendants 1 to 3. In 1971 and 1972 the BMC attached the land under sections 203 and 207A(3) of the BMC Act, 1888 for arrears of property taxes amounting to Rs. 56,717.13 ps. for the period 1-10-1965 to 31-3-1971. No notice of the arrears was served on plaintiffs. Defendant 28 had made efforts to stave off the sale, but in vain. In the auction the property was purchased for Rs. 3,00,000/- by defendant 4 an association of defendants 5 to 27. A sale certificate was issued by the BMC on 31-3-1973. This sale was void and moreover had been questioned by defendant 28 in Suit No. 948 of 1973 pending in this Court. Defendant 1 had not carried out the obligations cast upon them under the settlement. Defendants 4 to 28 had actual or constructive notice of the terms of settlement. Therefore they also are bound by the covenants contained in the said settlement. Defendant 1 has not delivered possession of the alternative site at Haines Road. That site has not properly levelled or fenced as required by the settlement. On the other hand the BMC has permitted a large number of temporary structures to come up on the land.
4. On the basis of the above averments plaintiffs claim the following reliefs in the alternative. First they seek injunctions to compel the creation of a garden with attendant obligations on the Grant Road land and possession of the Haines Road land and possession of the Haines Road land. As an alternative, the plaintiffs claim possession of the Grant Road land. The third alternative is a direction to defendant 1 to pay to plaintiffs the money realised by the sale of the Grant Road land less the arrears of property tax for the realisation whereof the sale took place.
5. Defendant 1 contends that the Grant Road land having been surrendered by the trustees, plaintiffs have no right to seek any relief in respect thereof. The Haines Road land was delivered to the trustees on 21-2-1963 i.e., the very day on which possession of the Grant Road land was taken from them. Defendant 1 was not bound by any settlement reached between the trustees and defendant 3. The attachment and sale of the Grant Road land was proper and valid. Plaintiffs' claim was barred by limitation and laches. As to the Haines Road land possession thereof had been delivered to the plaintiffs. Defendant 1 was not responsible for the land having been encroached upon by others. The suit was bad for misjoinder of parties and causes. The statutory notices preceding the suit were not valid.
6. Defendant 3- the State Government- would have it that the Grant Road land was resumed on 21-2-1963 because of breach of conditions of the grant and thereafter transferred to the BMC for use as a public recreation ground. As such plaintiffs were not entitled to any relief as against defendant 3.
7. Defendant 28 denies the locus of plaintiffs to sue on behalf of the Jewish Cemetery Trust. The lease and renewal thereof were valid transactions and binding on the successor trustees. The attachment and sale of the land by the BMC was improper and invalid. The settlement between the trust, BMC and the State Government did not create any enforceable right in favour of the trust or limit his i.e. defendant 28's rights as a tenant. Possession of the Grant Road land was and always been with him. Defendants 5 to 27 were his licensees and the municipal auction did not confer any higher rights upon them. In fact he had questioned the auction in Suit No. 948 of 1973 pending before this Court. Plaintiffs were not entitled to any relief vis-a-vis either pieces of land or the sale proceeds.
8. Defendants 4 to 6 and 16 contend that neither plaintiffs nor defendant 20 have any subsisting right over the Grant Road land having regard to the resumption of the said land by defendant 3 and the municipal auction whereunder the fourth defendant and its members, defendants 5 to 27, have become the owners. Defendant 28 had the right to lease out parcels of the land to defendants 5 to 27. Having defaulted in the payment of taxes, the BMC were entitled to auction the land. None of the terms of the settlement bound defendants 4 to 27. In fact they could not be foisted with the knowledge of those terms. The reliefs sought by plaintiffs in regard to the Grant Road land could not be granted.
9. The other defendants do not appear to have filed written statements.
10. Pleadings aforestated give rise to the following issues. These are set out below with my findings recorded against each of them:---
Issues Findings1. Is plaintiffs' claim as laid maintainable in law? 'Yes'2. Is the suit bad for multifariousness? 'No'3. Do plaintiffs establish the validity of thestatutory notices served upon the StateGovernment and the Municipal Corporation? 'Yes'4. Do plaintiffs establish a binding agreementbetween them and the State Government? Yes: it binds5. Do the term of the agreement bind defendant 1 State Governand also the other defendants ment &BMC6.; Is plaintiffs' claim within limitation? 'No'7. Is defendant 28's position as a lesseevalid and subsisting as against all thetrustees of the plaintiffs trust? 'Yes'8. Relief and costs? 'See para 23'.Reasons for the findings
11. The discussion had best begin with technical objections to maintainability of the suit. As worded, the plaint gives the impression of an unholy and antagonistic mix of parties and causes. Rules 13 and 7 of Orders I and II of the Civil Procedure Code, 1908 (C.P.C.) enjoin upon parties pleading misjoinder to raise the plea at the earliest possible opportunity and in all cases where issues are settled, at or before such settlement. Where an objection is not so taken, it shall be deemed to have been waived. Tested thus the plea of misjoinder raised by virtually all the contesting defendants amounts to a frivolity. The suit was field in 1976. Defendants took their own time to file written statements. When exactly these were filed need not detain us for the dates on which they prepared the said statements establish that far from doing anything 'at the earliest possible opportunity', defendants 1, 3, 4/16 and 28 filed their written statements as late as 1990 i.e. last year. Defendants pleadings multifariousness could have taken out motions raising this plea. By their inaction they must be deemed to have waived the contention. This is not to say that there is no merit in the defence of multifariousness. Three slightly disparate causes have been lumped together albeit as alternatives. There is of course a linkage between the alternatives to lend plausibility to the plaintiffs' contention that there is no misjoinder of causes or parties. Be the substance in the stands whatever it be, multifariousness is not fatal in the sense of non-suiting the plaintiffs. There is first the right of the suitor to be called upon to elect which of the causes they will prosecute. Failure or refusal to elect will compel a total dismissal of the suit. The next alternative is for a Court to work out such relief as can be granted in a suit suffering form multifariousness. The first course is not open having regard to the long interval that has gone since the institution of the suit. If necessary, it will be the second alternative which will have to be taken recourse to in the circumstances of the present case.
12. The suit's maintainability has to be differentiated from its success or failure. As framed, there appears to be no defect which would render it untenable.
13. The defence questioning the validity of the statutory notices has not been pressed either by Counsel for defendant 1 or defendant 3. Apparently also, there is no flaw which would render the notices vulnerable.
14. As to the lease and renewal thereof in favour of defendant 28, plaintiffs admit that lease deed dated 1-11-1955 and 1-11-1959 were for a duration of three years each. The prohibition against transfers including leases appearing in section 36 of the BPT Act does not cover leases of non-agricultural land for a period not in excess of three years. Thus this ground advanced by plaintiffs to attack the lease in favour of defendant 28 has to be negatived. The other ground pleaded is that the trust is not bound by the lease as two or three of the then trustees entered into the transaction without the knowledge much less the consent of the remaining trustees. The state of evidence adduced by parties including plaintiffs is anything but satisfactory. P.W. 1 Basi David has testified to matters resting on hearsay. The little that can be attributed to his personal knowledge depends on nothing stronger than his say-so. Plaintiff No. 28's version is that of a person highly interested and not above using words with the knowledge that they have a legal significance. To deduce the plain unvarnished truth from this is not possible. However the circumstances attending the transactions and their aftermath belief the stand taken by plaintiffs. The Jewish community in Bombay is a small one and their number according to P.W. 1 is dwindling. Defendants 28 and 5 to 27 are on the Grant Road land since about 1956. They have put up structures thereon. Till 1976 none from the trustees questioned the occupants as to their right over the land. The trustees could not have been unaware of what was going on. No steps were taken against their erring colleagues. This silence is eloquent for the community has a sprinkling of lawyers in active practice in Bombay. An explanation of sorts has been attempted for the silence. It is said the BMC was incapacitated from doing anything to honour its commitments under the settlement because of writ petitions filed by defendant 28 and in any the Haines Road land had not been brought to a condition fit for delivery of possession to the trust. The settlement took place in the early 1960s. Prior thereto defendant 28 and his inductees had put up structures all over the land violating all the limitations allegedly set out in the leases. Thus from 1956 to 1962/63 at least there was every reason for the trustees to initiate action against the violators of the trust and their accomplices outside. The only conclusion possible is that those representing the trust in the lease represented all the trustees and had their knowing consent to go ahead in the deal with defendant 28. This would save the leases from the vice of illegality.
15. Remaining to be examined is the true nature and effect of the auction sale of the site leased to defendant 28. Defendant 28 has questioned the auction in a separate suit and it will be proper to leave the question of the sale's validity as between him and the BMC to the decision of that suit. Nonetheless it is necessary to be clear as to what was sold. This has become imperative because of the surprising argument put forth on behalf of defendants 4 to 6 and 16 that the purchase in auction has conferred on them full ownership rights. This was so despite the fact that the defaulter was defendant 28 - a lessee. Statutory auction, it was seriously argued - always conferred a free-of-encumbrances title on the purchaser. Defendants 4 to 27 certainly knew that defendant 28 was a lessee and they at the best were sub-lessees. Yet - so it is claimed- the auction made them owners with an indefeasible title. The contention is demonstrably wrong.
16. Section 200 to 206 of the BMC Act deal with the mode and manner of realisation of various taxes including property tax. Where the person liable does not pay the tax after the services of a bill or notice, he becomes a defaulter. One of the means for realisation of the taxes is attachment and sale of the immovable property of the defaulter. The last four words viz. 'property of the defaulter' mean no more than the right, title and interest which the defaulter has in the property brought to sale. Sub-section (6) of section 206 requires the Commissioner to put the declared purchaser in possession of property and grant him a sale certificate. This certificate cannot confer on the purchaser a right wider than that purchased by him viz. the right, title and interest of the defaulter. There is no provision in the BMC Act wiping out encumbrances and convenants antecedent to the auction. The warrant of attachment to be found in defendant 1's compilation of documents mentions the defaulters as the named executant lessors and defendant 28 as the defaulters. But in 1971 when the warrant was issued the trust had no proprietory interest surviving in the Grant Road land. They had surrendered the said land on 21-2-1963. The other interest outstanding was that of the lessee defendant 28. And it was only this which could have been and was auctioned. If defendants 4 to 27 have acquired an interest by the auction it is that of defendant 28. They have not become owners. That right vests in defendant 3 the State Government and defendant 1 becomes the trustee thereof by section 88 of the BMC Act and the vesting is 'for the purposes of the Act' as laid down in that section.
17. Plaintiffs contend that they are entitled to a return of the Grant Road land because defendants 1 and 3 have not honoured the commitments binding on them vide the consent terms. The written statements of defendants 1 and 3 repudiate the terms in words suggesting that these are an invention of the plaintiffs. True to his usual sense of fairness Counsel for defendant 1 Mr. Makhija has made amends by unreservedly accepting an affidavit filed by an Officer of the BMC in Misc. Application No. 814 of 1967 which was a writ petition moved by defendant 28 against the BMC. The affidavit bears out the factual correctness of these stand taken by plaintiffs. The admissions of defendant 1 bind defendants 4 to 27 as they claim on the basis of an auction conducted by the BMC under the BMC Act. Similarly defendant 3 cannot rest upon recitals appearing in the City Survey records. It did take possession and defendant 1 got the Grant Road land from defendant 3 after the said defendant had resumed it and got it back by enforcing possession from the grantee-the trust, now claiming through plaintiffs. Defendant 28 admits that Officers from the Collectorate had come to take possession. He denies that he was dispossessed. Possible true but this does not mean that constructive possession did not come to the defendant 3 and through it to defendant 1. To that limited extent extracts from the City Survey records can be and are relied upon. The entries show that defendant 3 took possession from the plaintiffs and delivered it to defendant 1 on 21-2-1963. With this problem resolved one now turns to the consent terms. These are referred to in defendant 1's affidavit in M.A. No. 814 of 1967 though not in details. Exs. P-2 and P-3 have not been duly proved and cannot therefore be taken cognisance of Letter dated 26/3/1962 from the Collector to the then Attorneys of the trust contains a recital about the consent terms having been approved by Government. At least three of the terms therein viz. withdrawal of the appeal pending in the MRT, surrender of the Grant Road land by the trust, its transfer to defendant 1 for public purposes are all proved by admissions of parties and entries in the public records. Therefore, the letter aforementioned must be taken to reflect the truth. What the consent terms amount to is a different question altogether. The proved fact is that it was in the background of these terms that the appeal of the trust against the threatened resumption came to be withdrawn. The consent terms nowhere speak of the trust's entitlement to get back the land on the failure of the BMC to perform any of the obligations set out therein. The surrender by the grantee i.e., the trust was unconditional. Therefore plaintiffs claim in regard to prayers (e), (f) and (g) is without a basis.
18. Can the plaintiffs get reliefs claimed vis-a-vis the Haines Road land P.W. 1 Basil David seeks to justify the plaintiffs reasons for maintaining that possession of the Haines Road land was not granted to them. It is pleaded that the land had to be levelled before being delivered to the plaintiffs. What the pleading and Basil David's statement cover is an excuse for the plaintiffs not having been able to retain possession of the entire Haines Road land in the face of expanding slums as also for the great delay in the filing of the suit. So far as the Haines Road land is concerned the plaintiffs should have sued within 3 to 12 years of the withdrawal of the appeal in 1963. They came in 1976 though possession of the Grant Road land was taken from them on 21-2-1963 when defendant 1 became liable under the consent terms to place them in possession. If the right be deemed one which could be specifically enforced, the period of limitation therefore was three years as from 21-2-1963. Taking the limitation to be 12 years as if the suit were one for possession on title, the same expired in 1975. The lodging date is not traceable on the plaint. Fortunately the verification to the plaint is of 31-5-1976. Therefore the institution must be of the same day, if not later.
19. It was argued for plaintiffs that the accrual of cause of action stood deferred until the BMC could succeed in ousting defendants 4 to 28 or at any rate level or fence the Haines Road land. Defendants 4 to 28 have nothing to do with the Haines Road land and the attempt to link up the two lands for the purposes of limitation has no substance. The surrender in regard to Grant Road land was absolute and that was cause enough to get the Haines Road land. As to the levelling and fencing enjoined upon defendant 3, that could not extend limitation. Basically the right was for possession of the Haines Road land. Details attendant to delivery were incidental and not a condition precedent to effecting delivery of the land to plaintiffs.
20. The last set of reliefs claimed by plaintiffs are in relation to obligations cast on defendant 1 vis-a-vis the user of the Grant Road land. Injunctions-prohibitory and mandatory-are sought by plaintiffs. The land was surrendered to defendants 3 and 1 on 21-2-1963. The consent terms required the land to be used as a garden exclusively for women and children. This was on such part of the land as was vacant. Tombs were to be left intact and the remains of those interred were not to be disturbed. No structures were to come up on the site used in the past for the burial of the dead. Drains, newer and pipelines are not to be laid through the land. Again, plaintiffs were confronted with the defence are not to be laid through the land. Again, plaintiffs were confronted with the defence of laches and limitations. Prima facie, the injunctions claimed are in respect of breaches which occurred the day after 21-2-1963. The suit not having been brought within three years thereof plaintiffs are not entitled to the injunctive reliefs. To get over this difficulty plaintiffs say that the omission complained of given rise to a recurring cause of action. This plea is without merit for the omissions had a starting point viz. not laying out of a garden. When that preliminary step was not taken the right to sue accrued and that wrong had to be remedied within three years of 21-2-1963. Defendant 28's writ petitions are said to extend limitation for until the disposal of thereof defendant could do nothing. But thus viewed even now the defendants 4 to 28 are very much in the picture and if that be the position, the claim for injunctions would be premature. The sounder view is that nothing stopped plaintiffs from seeking to enforce the obligations cast upon defendant 1 within three years of 21-2-1963 - more so because it is plaintiffs' case that defendants 4 to 28 are also bound by obligations undertaken by defendant 1, the said first set of defendants being transferees with notice. There is of course no substance in the protestations of ignorate made by defendants 4 to 28. Defendant 28 knew what was a foot and had in fact opposed the withdrawal of the MRT appeal by plaintiffs. His lessees/licenses defendants 5 to 27 were bound by what bound defendant 28, the head lessee. Of course their rights as sub-lessees or licencees had to be duly destroyed by decrees of competent courts. The consent terms would have effect but subject to the rights of defendants 4 to 28 which had and have not still been determined. The only difference after 21-2-1963 was that defendants 3 and/or 1 got substituted in the place of plaintiffs vis-a-vis defendants 4 to 28.
21. The obligations cast on defendant 3 by the consent terms are not covenants running with the land. For that reason they do not bind defendants 4 to 28. Being in derogation of the rights of defendants 4 to 28 they cannot be enforced against these defendants. If enforced the garden can be laid out only by evicting defendants 4 to 28 and that requires resort to proceedings not yet taken. Plaintiffs press a part of section 40 of the Transfer of Property Act, 1882 (TP Act) which reads :---
'Where a third person is entitled to the benefit of an obligation arising out of contract and annexed to the ownership of immovable property, but not amounting to an interest therein or easement thereon, such right or obligation may be enforced against a transferee with notice thereof or a gratuitous transferee of the property affected thereby, but not against a transferee for consideration and without notice of the right or obligation, nor against such property in his hands.'
While appraising this plea, one must not forget that defendants 4 to 28 were the creations of plaintiffs predecessor-trustees. The inability of defendant 1 to do anything effective against defendants 4 to 28 is not for want of trying. Plaintiffs cannot on the one hand get their pound of flesh under the consent terms and forget their liability for the crippling incapacity that comes in the way of defendant 1. And coming 13 years after the event is certainly proof of laches. Even if the above section of the TP Act be available, plaintiffs cannot be given the injunctive relief claimed seeing that they are guilty of laches. And nothing can wipe out this default on the part of plaintiffs. By their long silence they have virtually waived all their rights under the consent terms.
22. The suit fails. But this does not mean that the BMC is immune from performing its statutory responsibility. I refer in this connection to section 436 of the BMC Act which reads thus :---
'If the existing places for the disposal of the dead shall at any time appear to be insufficient, or if any place is closed under the provisions of section 438, the Commissioner shall, with the sanction of the Corporation, provide other fit and convenient places for the said purpose, either within or without Greater Bombay, and shall cause the same to be registered in the register kept under section 435, and shall deposit in the municipal office, at any time of registration showing the extent and boundaries of the same and bearing the signature of the municipal city engineer.'
In terms, the section applies. The smallness of the space available at Haines Road for burial of corpses is evident from the agreement to provide larger space to the trust. Loss of the land by plaintiffs which the BMC gave to plaintiffs is of course there. But let it not be forgotten that few land owners of Bombay are in a position to resist slumlords and their inhabitants. A microscopic minority like the Jews and Bombay should not be penalised for their inability to resist growth of slums on land given to them in 1963. The BMC will therefore act in terms of section 436 of the BMC Act and provide the plaintiffs any other fit and convenient site for the burial of the dead amongst the Jews. Hence the order.
23. Reliefs claimed by the plaintiffs in the suit cannot and are hereby not granted. Defendant 1 the BMC in terms of section 436 BMC Act do provide to the plaintiffs for and on behalf of the Jewish community a place or places which are fit and convenient for the burial of the Jewish dead. This be done within one year from today. Parties do bear their own costs.