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2016 DIGILAW 1841 (ALL)

Babu Lal v. Arun Kumar Bosh

2016-05-12

PRAMOD KUMAR SRIVASTAVA

body2016
JUDGMENT Pramod Kumar Srivastava,J. 1. Heard learned counsel for the parties and perused the records. 2. In original suit no. 1038/1998 (Arun Kumar Bosh and others vs. Babu Lal), it was pleaded that in a part of house no. B-20/105, Mohalla Bhelupur, Varanasi, a temple of Lord Shiva is established, which is the property of Deity. Earlier owner of this property was Smt. Kishori Mani Dasi, who had created a trust of said property of deity. The plaintiffs of the suit are trustees of said trust. The plaintiffs-trustees had executed a registered power of attorney dated 19.6.1996 in favour of Smt. Shanti Rani Bosh (plaintiff no.-7). In said temple of Lord Shiva, the Lalta Prasad was appointed as priest who was permitted to reside in one room adjacent to temple. After the death of Lalta Prasad, his son defendant Babu Lal had started working as priest of the temple. But for some time unwarranted activities have been started which is causing loss to the prestige and piousness of temple, therefore the plaintiffs had cancelled the permission and license of defendant to reside in said temple and work as priest of temple. Then in spite of notice given by plaintiffs, defendant had not evicted the said room detailed in the plaint; therefore the plaintiffs had filed suit for eviction of defendant and for permanent injunction restraining defendant not to interfere in property and the activities of temple either directly or through any other person. 3. In his written-statement before the trial court, the defendant had admitted that disputed property belonged to temple of Lord Shiva and trust. He further submitted that he is working as priest in said temple and residing in disputed room with his family. The plaintiffs had tried to take possession of said house, then defendant had filed original suit no. 1038 of 1998, and as such, plaintiffs' suit is liable to be dismissed. 4. After affording opportunity of hearing to the parties, Additional Civil Judge (J.D.), Court No.-4, Varanasi had decreed the suit of plaintiffs for relief claimed by its judgment dated 28.7.2007. In this judgment the trial court had held that disputed property belonged to trust and plaintiffs are its trustees on behalf of Lords Shiva, and the deity had right to evict the defendant from disputed house. 5. Against the said judgment of trial court, Civil Appeal no. In this judgment the trial court had held that disputed property belonged to trust and plaintiffs are its trustees on behalf of Lords Shiva, and the deity had right to evict the defendant from disputed house. 5. Against the said judgment of trial court, Civil Appeal no. 61/2007 (Babu Lal vs. Arun Kumar Bosh and others) was preferred, which was heard and dismissed by the judgment dated 22.1.2016 of Additional District Judge, Court No.-9 Varanasi. In this judgment, the first appellate court had pleaded that plaintiffs are trustees of the temple and disputed property. They had filed suit through power of attorney holder Jaggannath Prasad Vishwakarma who had right to initiate and carry on proceeding on behalf of the plaintiffs and cancel the appointment of defendant as priest, and has right to give evidence on behalf of plaintiffs. The first appellate court had also held that status of defendant is that of licensee of plaintiffs/trustees and defendant had no right to continue as priest. With these findings the first appellate court had dismissed the first appeal. 6. Against the judgment of trial court as well as the first appellate court, present Second Appeal has been preferred by the defendant of the original suit. 7. Learned counsel for the appellant admitted that although plaintiffs/trustees are licensor and the defendant-appellant is licensee, but under the provisions of Section 47 of Trusts Act, 1882, they cannot appoint attorney to work on their behalf. He contended that suit filed through power of attorney holder is incompetent, therefore the plaintiffs' suit was liable to be dismissed. He submitted that these points were not properly appreciated by lower courts, therefore the appeal should be admitted for being allowed. 8. These contentions were refuted by counsel for the respondents who had also discussed the provisions of Section 47 of the Trusts Act and contended that these provisions make it clear that if power of attorney holder is willing to work then the trustees can appoint any attorney on their behalf to discharge their work. It is admitted case that in present matter, the plaintiffs are competent person to manage all the affairs of trust and temple in question. It is also admitted that plaintiffs are licensor of the disputed property in which defendant-appellant resides and had performed the work of priest as licensee of plaintiff. It is admitted case that in present matter, the plaintiffs are competent person to manage all the affairs of trust and temple in question. It is also admitted that plaintiffs are licensor of the disputed property in which defendant-appellant resides and had performed the work of priest as licensee of plaintiff. It is admitted that plaintiffs had cancelled the license of defendant-appellant and had served the notice to him for cancellation of license and eviction from disputed premises. Any licensor has right to evict licensee. Therefore, there appears no illegality or error if they exercise their such right. So appeal is liable to be dismissed, because there is no error in judgments of the lower courts. 9. Section 47 of the Trusts Act reads as under: 47. Trustee cannot delegate.--A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless (a) the instrument of trust so provides, or (b) the delegation is in the regular course of business, or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation. Explanation.--The appointment of an attorney or proxy to do an act merely ministerial and involving no independent discretion is not a delegation within the meaning of this section. 10. The explanation of this section makes it clear that trustee has right to appoint attorney or proxy to do an act on his behalf. In present matter, it is admitted case that plaintiffs/trustees had appointed power of attorney on their behalf to discharge their function. Therefore, this contention of learned counsel for the appellant is found unacceptable that no power of attorney can be executed by a trustees under Trusts Act for discharging their acts. Such appointment of power of attorney by trustee which cannot be said to be delegation of power or office of trustee. 11. There has been concurrent finding of fact of the two courts below that plaintiffs/licensor had instituted the suit through power of attorney holder after cancelling the license of defendant/appellant. As discussed above, no legal provision bars this act of trustees. Admittedly the licensor had cancelled the license of licensee and seeks his eviction from property for which license was given. The two lower courts had rightly decided the matter against appellant. There appears no substantial question of law involved in this matter. As discussed above, no legal provision bars this act of trustees. Admittedly the licensor had cancelled the license of licensee and seeks his eviction from property for which license was given. The two lower courts had rightly decided the matter against appellant. There appears no substantial question of law involved in this matter. The findings given by the two courts below are apparently correct and acceptable that cannot be interfered in second appeal by re-appreciation of evidence. 12. On examination of the reasoning recorded by the trial court, which are affirmed by the learned first appellate court in first appeal, I am of the view that the judgments of the trial court as well as the first appellate court are well reasoned, and are based upon proper appreciation of the entire evidences on record. No perversity or infirmity is found in the concurrent findings of fact recorded by the trial court that has been affirmed by the first appellate court to warrant interference in this appeal. No question of law, much less a substantial question of law was involved in the case before this Court. None of the contentions of the learned counsel for the defendant-appellant can be sustained. 13. In view of the above, this second appeal is dismissed.