1. Shri R. K. Pandey for the appellants heard on admission. This is an appeal under Clause 10 of the Letters Patent against the dismissal of the appellants' appeal by a Single Bench of this Court against the order of the District Judge holding that the appellants were set up by Judgment-debtors' Father Mathew Elenjicat and sister Merry Joseph, they being mere puppets having no independent existence. Though Letters Patent Appeals were abolished by Act No. 29/1981 but recently a Full Bench of this Court in Balkishandas v. Perfect Potteries (Company Petition (Appeal?) No. 5/1983): (Reported in AIR 1985 Madh Pra 42) held the Act to be ultra vires as not within the competence of the State Legislature.
2. Plainliff-decree-holder-respondent No. 1, The Nagpur Roman Catholic Diocesan Corporation (Pvt.) Ltd., is a company registered under the Indian Companies Act, 1913, and is also an endowment registered under the Bombay Public Trusts Act. 1950 with the Archbishop of Archdiocese as its Director General and Chief trustee. The plaintiff owns nazul plot No. 14, area 4,57,260 sq. feet with bungalow and other structures in Shahstri Ward, Betul. Father Elenjical, the defendant No. 1 Judgment-debtor No. 1 was appointed the Priest-in-charge in Betul of the plaintiff from 16-6-1971 and in that capacity he occupied the suit property as a licensee. After taking charge, he called his two sisters. Sister Superior Merry Joseph, defendant No. 2 Judgement-debtor No. 2 respondent No. 2 and Sister Lucy George, appellant No. 1, and with their assistance established Missionary Congregation of Little Flower consisting of about 20 sisters in the plaintiffs premises and they also raised new structures on the premises of the plaintiff out of charities, donations etc. On 21-2-1977 Father Elenjical was transferred to Nagpur but he refused to quit, vacate and hand over possession. So the plaintiff filed civil suit No. 2-A/1977 for eviction of both Father Elenjical and Sister Merry Joseph, as their possession was unlawful, and claimed that the structures so raised were out of the funds of the plaintiff and the properties standing on Nazul plot No. 14 belonged to the plaintiff and were recorded as such as trust properties. Father Elenjical did not furnish account but on the other hand set up lease of the open plot in favour of Sister Superior of the Little Flower Convent. The defendants in their joint written statement claimed that Father Elenjical was the working trustee of the plaintiff and he had leased out the open plot to Sister Merry Joseph and she along with 20 other sisters raised new school building, convents chapel and five servants' quarters from fees, charities and donations at a cost of Rs. 50,000/-, present value being Rs. 75,000/-. However, both the defendants entered into compromise with the plaintiff, they withdrew their written statement and admitted the claim of the plaintiff for possession of the entire suit properties, including the new constructions i.e. school building, convent chapel and five servants' quarters. Accordingly, a compromise decree for possession was passed of the entire properties on 7-1-1978.
3. As the defendants failed to vacate the premises, the plaintiff took out execution on 1-5-1978 against both the defendants. When the warrant of possession came to be executed on 9-5-1978, the bailiff was obstructed by these appellants. They filed an application under Section 151, C.P.C. on 11-5-1978 objecting to the decree on various grounds. The plaintiff also filed an application under Order 21, Rule 97 of the Code on 19-6-1978 for removal of the obstruction, saying that these appellants have no independent right, title or interest in the property and they are equally bound by the decree, as they are claiming through Judgment-debtor Father Elenjical. The Additional District Judge on 3-12-1979 in M.J.C. No. 7/1978 dismissed the application under Order 21 Rule 97 by holding that the aggrieved party can file a separate suit to establish its title as the question of title cannot be gone into in this summary enquiry. The plaintiff preferred M.A. No. 9/1980 which was allowed by this Court on 8-3-1982 and the case was remanded with a direction to make a full enquiry into the question of title in view of amendment in Order 21 Rule 101 of the Code. No further evidence was led by the parties. The learned District Judge by his order dt. 22-3-1984 allowed the application of the plaintiff and directed the appellants not to obstruct the execution of the decree. He held that no lease was granted to the appellants, they are mere followers of Judgment-debtors and set up by them and they obstructed execution of the decree at the instance and on the instigation of the two Judgment-debtors. Appellants then preferred M.A. No. 139/84 to this Court and stay was granted on 3-5-1984 till decision of the appeal and the appellants were advised not to admit fresh students and if they do so, they would be doing at their own risk. By the impugned order, a Single Bench of this Court upheld the order of the District Judge. The learned single Judge overruled the objection raised for the first time in appeal that the plaintiff's suit and also the application under Order 21 Rule 97 were incompetent as the same were not filed by all the trustees, on the ground that the plaintiff being a Corporation, the Director General could bring the suit on behalf of the Corporation and this ground was not taken before the trial Judge and required determination of facts. Another contention raised was that since the appellants are in possession from long before the institution of the suit, they were necessary parties to the suit by relying on Beliram v. Mohd. Afzal AIR 1948 PC 168. The learned Judge held that the decision was on the question of res judicata and is not an authority on the point in controversy under Order 21 Rules 97 and 101, besides a decree against the principal tenant would be binding on a person claiming under or through the tenant.
4. Nothing has been shown to us to point out that the findings are in any way erroneous on facts or in law. First let us take up the finding of fact by both the Courts that the appellants have failed to prove that they had taken a lease of the open plot from Father Elenjical and then they had constructed some new structures. The appellants have examined only two witnesses, Merry Joseph, Judgment-debtor No. 2, and Lucy George, appellant No. 1, both being real sisters of Father Elenjical, Judgment-debtor No. 1. Surprisingly, Merry Joseph is silent about the lease or of paying any rent or of raising any construction. But according to Lucy George, lease of open plot and structures was given by Father Elenjical on monthly rent of Rs. 50/-, lease deed was executed by him, which is in custody of Merry Joseph and she was paying rent in lump sum and new structures were raised on donations from friends and relatives, pleading being that the lease was for open plot only, lease deed has not been filed and no documents have been produced in support to prove any donation. Even otherwise, it has not been shown that Father Elenjical had the authority to lease any property of the plaintiff. It is true that this Court in Laxman Prasad v. Shrideo Janki Raman 1973 MPLT 842 held that a suit on behalf of a registered public trust must be brought by all the trustees. However, it has been further held that a suit may be brought by one of the trustee with the sanction and approval of the co-trustees. Here the plaintiff had pleaded that under its constitution its chief trustee is authorised to sue and defend suits on behalf of the trust and there was no specific denial by the defendants. Otherwise also, this question required determination of facts but no such plea was raised by the appellants in the trial Court. The decision of the Privy Council in Beliram v. Mohd. Afzal (AIR 1948 PC 168) (supra) has no application to the facts of the present case. There, it was held that a decree in a suit cannot operate as res judicata against the transferee from one of the parties, when the transfer was effected before the suit. Here no such transfer has been proved. The appellants were merely in permissive possession of the licensee, whose licence has been terminated and their possession became illegal. The Supreme Court in Gurushiddaswami v. D. M. D. Jain Sabha AIR 1953 SC 514 has held as under :-
'It may be assumed as a proposition of law that a sub-lessee would be bound by a decree for possession obtained by the lessor against the lessee, no matter whether the sub-lease was created before or after the suit, provided the eviction is based on a ground which determines the sub-lease also.'
Therefore, the decree is equally binding on the appellants. Since, it has been held that the appellants miserably failed to establish that they have raised any construction out of their own funds, no question of an irrevokable licence under Section 60 of the Easements Act, 1882, arises. Benefit of Section 51 of the T.P. Act can also not be availed of by the appellants as they are not bona fide occupants in their own rights. It has been urged for the first time during arguments that the decree is a nullity as the jurisdiction of the civil Court is ousted under Section 50 read with Section 19(ii) of the Bombay Trusts Act to determine that the suit property is a trust property. This has again no merit because it is not in dispute that the suit property is the trust property, the appellants claim to be lessees of open plot in this property. Lastly, it is said that the plaintiff has to stand on the strength of its own title but the Court below has proceeded to find out the weakness in the appellants' title. Again this has no merit as the plaintiff's title is not in dispute and it is duly proved, the appellants could succeed only if they could prove their independent title.
Accordingly, the appeal is dismissed summarily.