LexHAMIDKHAN versus ASHABI & ORS.
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I [2008] 16 S.C.R. 297 HAMIDKHAN v. A ASHABI & ORS. (Civil Appeal No. 6711 of 2008) NOVEMBER 19, 2008 B [S.B. SINHA AND CYRIAC JOSEPH, JJ.] Specific Performance - Public trust property - Purchase of - Suit by the Trust against trespassers on trust property - C The Trust agreeing to sell the property to the vendee after getting permission from Charity Commission - Charity Commissioner granting pennission to sell the property in auction - Notice to the vendee to participate in auction - Order of Charity Commissioner set aside by High Court - Thereafter Charity Commissioner observing that the property D was in possession of some other person - Trust selling the property to the person in possession of the property - Suit by vendee for specific performance of the agreement and challenging the sale to the person in possession - Suit decreed by Courts below- On appeals held: Suit was rightly E decreed - Charity Commissioner could not have directed to sell the property to the person in possession ignoring the fact that the vendee was the owner of the property and the person in possession was her licensee - However, since the person in possession had invested a certain amount for F purchase, in order to balance equity, it is directed to register the property in the name of the vendeelowner, on her paying certain amount to the person in possession - Bombay Public Trust Act, 1950 - s. 36 - Constitution of India, 1950 - Article 142 G Respondent No. 1 purchased lease hold rights in respect of the land in question, together with the superstructure standing thereupon from 'H' in 1951. Since 297 H 298 SUPREME COURT REPORTS [2008] 16 S. C. R A the superstructure belonged to respondent No.8 (a charitable trust), it filed a suit against trespassers on the land. Respondent No.1 got herself impleaded in the suit. In view of the fact that respondent No.1 had already purchased the construction, respondent No.8 agreed to B sell the same to respondent No.1 by agreement dated 26.2.1980 after seeking permission to sell the same from Charity Commissioner u/s 36 of the Bombay Public Trust Act, 1950. Charity Commissioner by order dated 30.10.1982 directed to sell the property in public auction. C In view of the order dated 30.10.1982, respondent No.8 issued a notice to the respondent No.1 informing her about the auction and asking her to participate in the auction. Order dated 30.10.1982 was set aside by High Court and the Charity Commissioner was directed to 0 pass a fresh order. Charity Commissioner in its order dated 15.4.1987 noticed that appellant was in the possession of the property. Respondent No.8 executed sale deed in favour of the appellant by sale deed dated 12.5.1988. E Respondent No.1 filed a suit for specific performance of the agreement dated 26.2.1980 and also questioned the validity of sale deed dated 12.5.1988. The suit was decreed by trial court finding that appellant was in possession of the property as a licensee under the F plaintiff. First appellate court as well as second appellate court confirmed the order of the trial court. Hence, the present appeal. Partly allowing the appeal, the Court G HELD: 1.1. In view of the concurrent finding of fact, H there is no escape from the conclusion that the defendant No. 2-appellant was a licensee under the plaintiff. He, Jc.- therefore,· did not have any independent title or legal possession. Even if he and his father were in possession HAMIDKHAN v. ASHABI & ORS. 299 of a part of the property, the same was for and on behalf A of the plaintiff. [Para 16) [311-E) 1.2. Although the Charity Commissioner directed that instead of giving effect to the agreement dated 26.02.1980, the same should be sold in auction but the B said order has been set aside by the High Court. It was non est in the eye of law. The Charity Commissioner could 'i not have ignored the fact that the superstructure standing on the land was owned and possessed by the plaintiff- respondent No. 1. It was, therefore, fair and equitable to allow the said agreement to be given effect to. Even c otherwise the Charity Commissioner was to grant permission to the defendant No. 1 to sell the property in favour of the plaintiff. It could not have issued a direction which was otherwise not sustainable. It could not have ignored the fact that the plaintiff was the owner of the D superstructure of the property and was, thus, in lawful -
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