Karnataka High Court
S John De Britto S/O Stanislaus vs Sree Gundlu Muneswara Swamy Temple ... on 12 November, 2021
Author: H.P.Sandesh
Bench: H.P. Sandesh
1
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 12TH DAY OF NOVEMBER, 2021
BEFORE
THE HON'BLE MR. JUSTICE H.P. SANDESH
R.F.A.NO.1646/2005 (RES)
BETWEEN:
S.JOHN DE BRITTO
S/O. STANISLAUS
AGED ABOUT 55 YEARS
M/S. UNIVERSAL AUTO SERVICES
NO.10, DHARAM COLLEGE POST
HOSUR ROAD, BENGALURU-560 029. ... APPELLANT
[BY SRI S.SHAKER SHETTY, ADVOCATE (THROUGH VC)]
AND:
SREE GUNDLU MUNESWARA
SWAMY TEMPLE TRUST (REGD.,)
HOSUR ROAD, BENGALURU-560 029
REP. BY ITS SECRETARY
A.B.SURYA S/O BALAPPA
AGED ABOUT 64 YEARS
R/AT NO.005, GOLDEN NEST
APARTMENT, ADUGODI,
BENGALURU-560 030. ... RESPONDENT
[BY SRI M.S.NAGARAJA, ADVOCATE]
THIS R.F.A. IS FILED UNDER SECTION 96 OF CPC
AGAINST THE JUDGMENT AND DECREE DATED 09.08.2005
PASSED IN O.S.NO.1051/2000 ON THE FILE OF XV ADDITIONAL
CITY CIVIL AND SESSIONS JUDGE (CCH-3), BENGALURU CITY,
DECREEING THE SUIT FOR EJECTMENT, ARREARS OF RENT AND
FOR DAMAGES.
2
THIS R.F.A. HAVING BEEN HEARD AND RESERVED FOR
JUDGMENT ON 07.10.2021 THIS DAY, THE COURT
PRONOUNCED THE FOLLOWING:
JUDGMENT
This appeal is filed challenging the judgment and decree passed in O.S.No.1051/2000 dated 09.08.2005 on the file of XV Additional City Civil and Sessions Judge at Bangalore City.
2. The parties are referred to as per their original rankings before the Trial Court to avoid confusion and for the convenience of the Court.
3. The factual matrix of the case is that the plaintiff is a trust duly constituted and registered under the provisions of the Indian Trusts Act and was founded for religious, charitable and educational purposes and objectives. The defendant is a tenant under the plaintiff in respect of the portion of the premises situated at Sree Gundlu Muneswara Swamy Temple Premises, Hosur Road, Bangalore-29 morefully described in the plaint schedule, on a monthly rent of Rs.800/-. The tenancy month is from 1st to end of each English Calender month and defendant has been running an auto service station under the name and style of "M/s. Universal Auto Services".
3
4. It is the case of the plaintiff that the defendant is a chronic defaulter and most irregular in payment of rents from his inception and has paid the rent only till the end of 31.12.1996 and has committed default in payment of rent that has accrued from 01.01.1997 onwards. It is the contention of the plaintiff that the arrears of rent from 01.01.1997 to 31.01.2000 amounts to Rs.29,600/- at the rate of Rs.800/- per month. The plaintiff also got issued a legal notice to the defendant demanding arrears of rent on 17.07.1998. Despite service of notice, the defendant failed to pay either the rent or given any reply to the said notice. Thereafter, the plaintiff has got issued a notice to the defendant dated 05.01.2000 terminating the tenancy and demanding him to quit, vacate and deliver vacant possession of the suit property on or before 31.01.2000. The defendant managed to send back the notice sent to him by Registered Post with Acknowledgement Due and evaded to receive the notice. However, a copy of the notice was also sent to him by the plaintiff under Certificate of Posting and the same has been duly served upon him. The defendant has failed to vacate the premises or to reply to the notice and hence, the plaintiff was 4 constrained to file this suit for ejectment, arrears of rent and for damages. It is contended that the schedule property will fetch more than Rs.10,000/- per month as rent.
5. In pursuance of the suit summons, the defendant appeared and filed written statement. In the written statement, he has contended that, he is not a tenant of the plaintiff and that there is no landlord and tenant relationship between the plaintiff and himself and the plaintiff is not at all the owner of the suit schedule premises. Therefore, the suit is not maintainable. However, he has admitted that, he is the proprietor of M/s. Universal Auto Services and contend that no arrears of rent is payable. It is also his contention that, after receiving the notice dated 17.07.1998, he had approached the plaintiff questioning the authority of the plaintiff to issue the said notice and Sri A.B. Surya claiming to be the Secretary of the plaintiff told him to ignore the notice stating that the same has been issued under misconception. Believing his representation, he did not bother to reply to the notice.
6. Based on the pleadings of the parties, the Trial Court has framed the following issues:
5
"1) Whether the plaintiff proves that he is the landlord of the premises wherein defendant is in possession?
2) If the plaintiff is the landlord, whether he proves the defendant is a tenant?
3) If so whether the termination is as per law?
4) Whether the plaintiff proves that the
defendant is in arrears of rent of
Rs.29,600/-?
5) Whether the plaintiff proves he is entitled to
premises?
6) Whether the plaintiff is entitled to
possession?"
7. The plaintiff, in order to substantiate the claim made in the plaint, examined one witness as P.W.1 and another witness Sri A.S. Seshappa as P.W.2 and got marked the documents Exs.P1 to P11. The defendant got examined himself as D.W.1 and got marked the documents Exs.D1 to D16.
8. The Trial Court, after considering both oral and documentary evidence placed on record, answered all the issues as 'affirmative' and granted decree in favour of the plaintiff and 6 directed the defendant to quit, vacate and deliver vacant possession of the suit schedule premises to the plaintiff within 90 days from the date of the said judgment. The Trial Court also directed the defendant to pay a sum of Rs.29,600/- as arrears of rent with interest at the rate of 6% per annum from the date of suit till the date of payment. The Trial Court further held that plaintiff is also entitled for mesne profits from 01.02.2000 till the delivery of vacant possession of the suit schedule property to the plaintiff and ordered to determine the same in the final decree proceedings. Being aggrieved by the judgment and decree, the present appeal is filed by the appellant-defendant.
9. The main contention urged in the appeal is that the Trial Court ought to have held it is a trust and under the Trust Act, all the trustees should join together and file a suit and they cannot delegate such power at all. Hence, the suit is not maintainable. It is also contended that the Trial Court ought to have held from the facts, it is clear that Ex.P1 does not indicate that the suit schedule property belongs to the trust and admittedly, no title deed or land khatha is registered in the name of the trust. Admittedly, no tax is paid by the trust to the 7 suit schedule property and there is nothing to show that the trust has leased the property to the appellant herein.
Admittedly, the appellant has been doing the business right from the year 1974. The trust was created only on 16.12.1983. Hence, even before creation of the trust, the appellant was in possession of the property and enjoying the property without any reference to the previous owner, who declared the trust. Admittedly, the appellant has put up RCC building. But, at no time, the respondent objected the same and admittedly, the appellant has been in continuous possession of the property. There is nothing to show the respondent had paid rent at any time though they say they have maintained the account and it is evidenced by themselves, but no such document is produced by them to show the receipt of rent from the appellant.
10. On the contrary, P.W.1 said there is no documentary evidence. But, P.W.2 at the time of the evidence though never whispered in the pleadings, produced document to show as Ex.P8-a note book wherein according to him rents of various tenants are mentioned. But, unless and until, the appellant signs such document, those documents have no probative value. 8 Even the resolution book is not proved in accordance with law. It is concocted after the evidence of P.W.1. Hence, the Trial Court ought to have held that there is no landlord and tenant relationship between the parties and that the respondent is not at all the owner of the scheduled premises. The Trial Court ought to have held that there is admission on the part of P.Ws.1 and 2 that they have got the document to show the property belongs to the trust. But, they did not produce any document to show that it is the trust property, in spite of the fact the appellant herein has taken a specific plea, the trust has nothing to do with the suit schedule property. Hence, an adverse inference should be drawn against the trust. The Trial Court failed to consider all these material on record and erroneously decreed the suit.
11. Learned counsel appearing for the appellant in his argument vehemently contend that Sections 46 and 47 of the Indian Trusts Act, 1882 it is clear that a trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless the instrument of trust so provides, or the delegation is in the regular course of business, or the delegation 9 is necessary or the beneficiary, being competent to contract, consents to the delegation. Section 48 is also clear that co- trustees cannot act singly when there are more trustees than one, all must join in the execution of the trust, except where the instrument of trust, otherwise provides. Hence, the counsel would vehemently contend that suit itself is not maintainable.
12. Learned counsel for the appellant has also filed application in I.A.No.1/2005 under Order 41, Rule 27 of C.P.C. seeking permission of this Court to produce warranty and service booklet of Maruti Company, original tax paid receipt - 2 in number, original endorsement issued by the City Survey Officer, demand notice dated 06.09.2004 issued by the Corporation of City of Bangalore for payment of tax and RTC Extract for the period 2004-05 of Sy.No.No.71, Adugodi Village, Begur Hobli, Bangalore South Taluk.
13. Learned counsel for the appellant has also filed application in I.A.No.1/2016 under Order 41, Rule 27 of C.P.C. for production of additional evidence i.e., Khatha Certificate issued by BBMP, Khatha Extract issued by BBMP, tax paid receipts, trade licence issued by the Corporation of City of 10 Bangalore and Extract from the City Survey and the plan in respect of Sy.No.71/1A entirely different from Sy.No.71/2 and there is no Sy.No.71/2A.
14. Learned counsel for the appellant has also filed another application in I.A.No.1/2020 under Order 41, Rule 27 of C.P.C. seeking permission of this Court to produce copy of the income tax returns and copy of the endorsement.
15. In all the applications referred (supra), an affidavit is sworn to by the appellant-defendant contending that these documents are very much necessary to decide the issue involved between the parties since, the plaintiff is not the owner of the property. The tax paid receipts discloses that the defendant is in possession of the property and paying the tax. The copy of the survey sketch shows that the property bearing Sy.No.71/2 belongs to Ghousia Technical Training Institute and the property which he is having business is Sy.No.71/1A. Hence, permit him to produce the document.
16. Learned counsel for the appellant has also brought to the notice of this Court the objections filed in respect of the 11 application filed by the respondent in I.A.No.2/2020 to produce certain documents invoking Order 41, Rule 27 of C.P.C. wherein the it is specifically contended that partition deed is no title document and moreover as admitted, it is by owners of the property and the respondent is neither a party nor it is a conveyance in favour of the respondent. The documents which have been relied upon by the respondent-plaintiff before this Court invoking Order 41, Rule 27 of C.P.C. not affirm that plaintiff is the owner and no relationship of landlord and tenant with the appellant and hence, the same cannot be entertained. It is further contended that the documents which have been relied upon by the respondent-plaintiff are created subsequent to the filing of the suit and those documents cannot be relied upon.
17. The learned counsel for the appellant-defendant in support of his argument relied upon the judgment in M/S. KARNATAKA TRADERS VS. HIREN SHAMJI KARAMSEY reported in ILR 1987 KAR 568 wherein, this Court held that one trustee not to deal with trust property in exclusion of others, execution of conveyance of trust property without all trustees joining conveys no title and lease by one co-trustee bad in law. 12
18. The counsel also relied upon the judgment in SHIVALINGAIAH VS. ANANDA SOCIAL & EDUCATIONAL TRUST reported in ILR 1985 KAR 1950 wherein also, this Court held that suit on behalf of trust, all trustees must join and not permissible for one or two trustees to represent trust and bring action. Referring this judgment, the counsel would vehemently contend that Ex.P1 not provides any such power under the Indian Trusts Act and unless, Ex.P1 provides such powers, the suit is not maintainable. The counsel would also vehemently contend that the Secretary cannot file a suit. He would further contend that, in the written statement, a specific defence is taken that the suit is not maintainable.
19. The counsel also relied upon the judgment in STATE OF PUNJAB AND OTHERS VS. DR. R.N. BHATNAGAR AND ANOTHER reported in AIR 1999 SC 647 and brought to the notice of this Court para-15 and 16 wherein, it is held that a fresh contention canvassed for our consideration in the alternative by learned counsel for the respondent requires a closer scrutiny, as in our view the decision thereon in favour of the respondent may entitle him to succeed and get the final 13 decision of the High Court allowing the writ petition sustained on this alternative ground. It is also held that pure question of law centering round the construction of the proviso to statutory Rule 3 cannot be agitated by learned counsel for the respondent for our consideration in these proceedings. No disputed question of fact arises for consideration as wrongly assumed by learned senior counsel for the intervenor.
20. The learned counsel for the appellant-defendant on merits would vehemently contend that he was paying a rent of Rs.800/- and the respondent-plaintiff has denied the payment of rent but, it is their contention that rent was paid up to 31.12.1996 and thereafter, no rent was paid. P.W.1 categorically admitted that no such rent receipts are available. The counsel would vehemently contend that, it is a Gomal land and the defendant constructed the building by taking permission. He would further contend that khatha stands in the name of the defendant i.e., holder khatha. On behalf of defendant, D.W.1 is examined and nothing is elicited in the cross-examination of D.W.1. The counsel would vehemently contend that, in terms of Ex.P1-trust deed, the Secretary has no power to file a suit 14 without resolution. The property is not dedicated to the trust and trust is not the owner of the property and no resolution has passed authorizing P.W.1 to file the suit. The evidence of P.W.2 is contrary to P.W.1. The entries made in Exs.P8 and P9 has to be proved by examining a person, who prepared the same.
21. The counsel also relied upon the judgment in M. KALLAPPA SETTY VS. M.V. LAKSHMINARAYANA RAO reported in AIR 1972 SC 2299 and brought to the notice of this Court para-5 wherein, an observation is made that the plaintiff can on the strength of his possession resist interference from persons who have no better title than himself to the suit property. Once it is accepted, as the Trial Court and the First Appellate Court have done, that the plaintiff was in possession of the property even since 1947 then his possession has to be protected as against interference by someone who is not proved to have a better title than himself to the suit property. On the findings arrived at by the fact finding Courts as regards possession, the plaintiff was entitled to the second relief asked for by him even if he had failed to prove his title satisfactorily. The High Court was not right in interfering with the judgment of 15 the Trial Court as affirmed by the First Appellate Court regarding relief No.2.
22. The learned counsel appearing for the appellant- defendant referring this judgment would contend that the defendant has established his possession which is an unobstructed possession. The counsel would vehemently contend that decree without jurisdiction is nullity and the Court must pass a decree and then invoke Order 20 and Rule 12 of C.P.C. and after enquiry, cannot grant damages. The Trial Court has referred Exs.P10 and P11 and however in Ex.P10, there is no survey number and though in Ex.P11, survey number is mentioned, no document to show that tax has been paid and no revenue documents are produced to establish the boundaries.
23. The counsel also relied upon the judgment in SANJAY GERA VS. HARYANA URBAN DEVELOPMENT AUTHORITY AND ANOTHER reported in (2005) 3 SCC 207 and brought to the notice of this Court para-5 of the judgment wherein, it is observed that in civil matters, the rights of the parties cannot be determined just on the basis of any other judgment on question of fact. It is vehemently contended that 16 notice issued against the defendant was avoided. But, it is the contention of the defendant that no such notice was sent.
24. The counsel also relied upon the judgment in B. PADMAVATHI RAI VS. PARVATHIAMMA reported in AIR 1976 KARNATAKA 97 and brought to the notice of this Court para-3 of the judgment regarding service, whether the Court was justified in holding that there was sufficient proof of service of the summons on the defendant. There was no basis to hold that letter tendered by the postman was the registered notice containing the suit summons. The indirect knowledge of the defendant about the pending litigation is irrelevant for the purpose of determining the sufficiency of service. The service may be held to be sufficient only on the proof of delivery of, or refusal to receive the summons. When the defendant has examined herself and stated that she had not refused to receive the letter, the prima facie presumption of the proof of service has disappeared, and it would be then for the plaintiff to produce cogent evidence to prove the 'shara' made by the postman.
25. The counsel also relied upon the judgment in M/S. GREEN VIEW RADIO SERVICE VS. LAXMIBAI RAMJI AND 17 ANOTHER reported in AIR 1990 SC 2156 wherein, the Apex Court held that letter sent by registered acknowledgement due to correct address, acknowledgement received back duly signed with recipients signature, legal presumption that addressee received the letter arises.
26. The counsel also relied upon the judgment in STATE OF MAHARASHTRA VS. RASHID B. MULANI reported in AIR 2006 SC 825 regarding certificate of posting.
27. The counsel also relied upon the judgment in SUNDARJAS KANYALAL BHATHIJA AND OTHERS VS. THE COLLECTOR, THANE, MAHARASHTRA AND OTHERS.
PRAHLAD HIRANAND ADVANI AND OTHERS VS. THE COLLECTOR, THANE, MAHARASHTRA reported in AIR 1990 SCC 261 wherein, the Apex Court held that Judges are bound by precedents and procedure, they could use their discretion only when there is no declared principle to be found, no rule and no authority and brought to the notice of this Court para-17 and 20 wherein discussed it would be difficult for us to appreciate the judgment of the High Court. The Doctrine of binding precedent has the merit of promoting a certainty and consistency in judicial 18 decisions, and enables an organic development of the law, besides providing assurance to the individual as to the consequence of transactions forming part of his daily affairs.
28. The counsel also relied upon the judgment of the Apex Court in STATE OF JHARKHAND VS. STATE OF BIHAR AND ANOTHER reported in (2015) 2 SCC 431 and brought to the notice of this Court para-11 of the judgment wherein, an observation is made that judicial discipline demands that we should not only refer the matter for examination of the said question by a larger Bench of this Court, but are also obliged to record broadly the reasons which compel us to disagree with the abovementioned decision.
29. The counsel also relied upon the judgment in U.P. POWER CORPORATION LTD. VS. RAJESH KUMAR AND ORS, STATE OF U.P. VS. BRIJ BHUSHAN SHARMA AND ANR.
reported in AIR 2012 SC 2728 and brought to the notice of this Court para-14 wherein, it is observed that one must remember that pursuit of the law, however, glamorous it is, has its own limitation on the Bench. The judicial decorum and legal propriety demand that where a learned Single Judge or a 19 Division Bench does not agree with the decision of a Bench of Co-ordinate jurisdiction, the matter shall be referred to a larger Bench.
30. The counsel also relied upon the judgment in SUGA RAM ALIAS CHHUGA RAM VS. STATE OF RAJASTHAN AND OTHERS reported in (2006) 8 SCC 641 and brought to the notice of this Court para-6 wherein, an observation is made that the Trial Court was required to carefully appraise the entire evidence and then come to a conclusion. If the Trial Court was at lapse in this regard the High Court was obliged to undertake such an exercise by entertaining the appeal.
31. The counsel also relied upon the judgment in MARKIO TADO VS. TAKAM SORANG reported in (2013) 7 SCC 524 wherein, the Apex Court held that non-compliance with by subordinate Court i.e., High Court in present case, amounts to judicial impropriety and indiscipline.
32. The counsel also relied upon the judgment in SUNIL KUMAR VERMA AND OTHERS VS. STATE OF UTTAR PRADESH AND OTHERS reported in (2016) 1 SCC 397 and 20 brought to the notice of this Court para-15 to 24 regarding judicial discipline and comity.
33. The counsel also relied upon the judgment in S.P. CHENGALVARAYA NAIDU (DEAD) BY L.RS VS. JAGANNATH (DEAD) BY L.RS AND OTHERS reported in AIR 1994 SC 853 wherein it is observed that the Courts of law are meant for imparting justice between the parties. One who comes to the Court, must come with clean hands. It can be said without hesitation that a person whose case is based on falsehood has no right to approach the Court. He can be summarily thrown out at any stage of the litigation.
34. The counsel also relied upon the judgment in KIRAN SINGH AND OTHERS VS. CHAMAN PASWAN AND OTHERS reported in AIR 1954 SC 340 and referring this judgment, the counsel would vehemently contend that decree passed by a Court without jurisdiction is a nullity, and that its invalidity could be set up whenever and wherever it is sought to be enforced or relied upon, even at the stage of execution and even in collateral proceedings.
21
35. Per contra, learned counsel appearing for the respondent-plaintiff in his argument vehemently contend that before filing the suit, notice was given and inspite of acknowledging the notice under Ex.P2, no reply was given. The counsel would vehemently contend that, when the defendant did not comply with the demand made under Ex.P2, another notice under Ex.P4 was issued invoking Section 106 of T.P. Act. The counsel would vehemently contend that, trust is not the owner and notice issued under Section 106 is not served. The counsel would vehemently contend that, for the first time, it is contended by the appellant-defendant that suit is not maintainable and no such defence was taken before the Trial Court in the written statement. The counsel would further contend that, while partitioning the property under the document of the year 1951, in the said partition deed, they left the property for the trust and the recitals of Ex.P1 is very clear that the trust is reserved for religious, charitable and educational purpose.
36. The counsel would vehemently contend that Indian Trusts Act is not applicable to the case on hand and further 22 contend that Sections 46, 47 and 48 of the Indian Trusts Act cannot be invoked and the same is not applicable. The counsel would further contend that the tenant cannot dispute the ownership. The tenant should plead in his written statement on what capacity he is in possession and no such pleading was made in the written statement. For the first time, the defendant is claiming that he is having independent right in respect of the suit schedule property. The counsel would vehemently contend that in Ex.P1, it is specifically mentioned that family members are the trustees and the trust was formed in the year 1983. The rent was paid till 1996 and 1997 onwards, committed default and hence, Ex.P2-legal notice was served on him and no reply was given.
37. The counsel would vehemently contend that Ex.P4- notice is also addressed to the very same address as in Ex.P2. Apart from that, notice under Certificate of Posting is also sent to the very same address. The plaintiff also relied upon Exs.P8 and P9 i.e., rent details book and resolution book. The plaintiff has also filed suits against other tenants and judgment and decree was passed against them in terms of Exs.P11 and P12. 23
38. The counsel would vehemently contend that the respondent-plaintiff also filed an application in I.A.No.2/2020 under Order 41, Rule 27 of C.P.C. and relied upon the document of partition deed of the year 1951 which discloses that the property is left for formation of trust and accordingly, trust was formed in the year 1983. The counsel would vehemently contend that in the application filed under Order 41, Rule 27 of C.P.C., he has produced the partition deed dated 15.02.1951, sketch map dated 07.06.1959, representations dated 19.11.1987 and 24.01.2007 and endorsement issued by the Bangalore City Corporation establishes the property belongs to the plaintiff. Hence, the application has to be allowed.
39. The counsel would also vehemently contend that the appellant-defendant has also filed applications before this Court claiming that he is the holder of khatha which was created colluding with BBMP. The counsel would vehemently contend that objections are filed with BBMP and the said objections are pending in view of the regular first appeal being pending before this Court. Ex.P3 is the representation to the BDA for cancellation of holder khatha and the property belongs to the 24 trust. The document of the year 1951 i.e., partition deed is produced. The very contention that the property is not in existence cannot be accepted.
40. The learned counsel for the respondent-plaintiff also brought to the notice of this Court that he has also filed objections to I.A.No.1/2020 filed by the learned counsel for the appellant-defendant seeking permission to produce income tax returns as well as the endorsement dated 18.10.2005 as additional documents is not helpful to the appellant-defendant in any manner and as such, the said documents are not relevant for consideration of the dispute involved.
41. The counsel would vehemently contend that in the application in I.A.No.2/2020 filed under Order 41, Rule 27 of C.P.C., the respondent-plaintiff has produced the partition deed dated 15.02.1951, sketch map dated 07.06.1959, representations dated 19.11.1987 and 24.01.2007 and endorsement issued by the Bangalore City Corporation establishes the property belongs to the plaintiff. Hence, the application has to be allowed.
25
42. The counsel, in support of his argument, relied upon unreported judgment of this Court passed in Regular First Appeal No.1248 of 2003 dated 28.09.2012 and brought to the notice of this Court para-6 of the judgment and so also observations made in page-25 of the judgment wherein, it is held that, a trustee cannot delegate any of the duties, functions and powers of his office to his co-trustees or to anyone else, as that would be contrary to his obligation under the Trust and the Court has to examine whether it is a private trust governed by Indian Trusts Act or is a public charitable or religious trust, a trustee cannot delegate any of his duties, functions and powers to a co-trustee or to any other person, unless the instrument of trust so provides or the delegation is necessary or the beneficiaries competent to contract consent to the delegation or the delegation is in the regular course of business. In this judgment, referring the judgment of the Apex Court in KANAKARATHANAMMAL VS. V.S. LOGANATHA MUDALIAR reported in AIR 1965 SC 271, this Court held that though the Court could direct the necessary parties to be joined, but this should be done at the stage of trial and that too, without prejudice to the plea of the parties as to limitation. 26
43. The counsel also relied upon the judgment in ATMARAM RANCHHODBHAI VS. GULAMHUSEIN GULAM MOHIYADDIN AND ANOTHER reported in AIR 1973 GUJARAT 113 wherein, it is held that decision making by co- trustees must be joint in absence of severally in the Trust deed, though mere format act by one is permissible.
44. The counsel also relied upon the judgment in J.J. LAL PVT. LTD. AND OTHERS VS. M.R. MURALI AND ANOTHER reported in AIR 2002 SC 1061 wherein, it is observed that documents referable to some other litigation between the parties cannot be taken into consideration unless tendered in evidence and brought on record consistently with procedural law governing trial of civil cases. It is also further observed in para-28 that, in a suit for ejectment of tenant, impleadment of parties, the relationship of Municipal Corporation with the respondents and their mutual rights and obligations are not germane to the present proceedings. Similarly, the question of title between sister of landlord and landlord cannot be decided in these proceedings. The impleadment of municipal corporation and sister of landlord would change the complexion of litigation 27 and raise such controversies as are beyond the scope of this litigation. The presence of either of the applicants is neither necessary for the decision of the question involved in these proceedings nor their presence is necessary to enable the court effectually and completely to adjudicate upon and settle the questions involved in these proceedings. They are neither necessary nor proper parties. Any decision in these proceedings would govern and bind the parties herein.
45. Having heard the learned counsel appearing for the appellant-defendant and respondent-plaintiff and also on perusal of the grounds urged in the appeal, the points that would arise for consideration of this Court are:
(i) Whether the appellant-defendant has made out a ground that in view of bar under Sections 47 and 48 of the Trust Act, the suit is not maintainable?
(ii) Whether the appellant-defendant has made out a case to allow the applications in I.A.Nos.1/2005, 1/2016 and 1/2020 to receive the additional evidence filed under Order 41, Rule 27 of C.P.C.?28
(iii) Whether the respondent-plaintiff has made out a ground to allow I.A.No.2/2020 for production of additional documents filed under Order 41, Rule 27 of C.P.C?
(iv) Whether the Trial Court has committed an
error in decreeing the suit directing the
appellant-defendant to quit, vacate and
deliver vacant possession of the suit schedule premises?
(v) Whether the Trial Court has committed an error in directing the appellant-defendant to pay the arrears of rent and respondent-
plaintiff is entitled for mesne profits?
(vi) What order? Point No.(i)
46. Having heard the learned counsel for the appellant- defendant and also the principles laid down in the judgments referred (supra), Sections 47 and 48 of the Indian Trusts Act, 1882 is clear that trustee cannot delegate and also co-trustee cannot act singly to maintain the suit. The principles laid down in the judgments referred (supra) is also very clear that the trustee cannot delegate the power. But, in the case on hand, it 29 has to be noted that the suit is filed by the Secretary of Sri Gundlu Muneswara Swamy Temple Trust which duly constituted and registered under the provisions of Indian Trusts Act which is founded for religious, charitable and educational purpose against the appellant-defendant, who is a tenant under the plaintiff. But, the defendant has disputed that he is not a tenant under the plaintiff. Hence, this Court has to take note of the contents of the written statement. It is brought to the notice of this Court by learned counsel for the defendant during the course of argument that, in para-3 of the written statement, the defendant has specifically denied that he is not the tenant. It is contended that there is no landlord and tenant relationship between the plaintiff and defendant insofar as the plaintiff is not at all the owner of the suit schedule property. Hence, the suit is not maintainable.
47. It is rightly pointed out by the learned counsel for the respondent-plaintiff that, nowhere in the written statement, a specific defence is taken that suit is hit by Sections 47 and 48 of the Indian Trusts Act, 1882 and also contend that, for the first time, the said ground is urged in the first appeal. 30
48. Though the learned counsel appearing for the appellant-defendant vehemently contend that the said objection can be raised in the first appeal, the same is a question of law. It has to be noted that, based on the pleadings, the Trial Court has framed the issues and the issues are not in respect of the maintainability of the suit. When at the first instance, the defendant has not pleaded and adduced any evidence, the plaintiff has not raised a contention before the Trial Court since no such contention was taken by the defendant that the suit is not maintainable. No doubt, in the judgments referred by the learned counsel for the respondent-plaintiff in this appeal it is held that under Section 48 of the Indian Trusts Act, one trustee not to deal with trust property in exclusion of others, execution of conveyance of trust property without all trustees joining conveys no title and lease by one co-trustee bad in law, however, in the case on hand, it is not the case of the defendant that lease was given by one trustee but, only the Secretary of the trust has initiated the proceedings before the Court.
49. First of all, even the defendant has denied that he is not a tenant. Hence, an issue is framed before the Trial Court to 31 the said effect. It is also important to note that, notice was issued against the defendant in terms of Ex.P2, which was acknowledged in terms of Ex.P3-postal acknowledgement discloses that he had acknowledged the notice but, has not given any reply. If really, he was not a tenant, he ought to have given a reply at the first instance that he was not a tenant. But, only in the written statement, a contention was taken that, he met the Secretary of the trust and he told that ignore the same. However, in order to substantiate the same, nothing is elicited from the mouth of P.W.1 when he was cross-examined. It is also important to note that the plaintiff has relied upon the document of Ex.P9-resolution book maintained by the trust which was formed in the year 1983 and the same is maintained by the trust from 14.02.1985 noting the different resolutions passed and participation of trustees in taking the decision.
50. It is also important to note that, I have already pointed out that the suit is filed for recovery of possession when default was committed by the appellant-defendant. No doubt, this Court in the judgment referred (supra) held that suit on behalf of trust, all trustees must join and not permissible for one 32 or two trustees to represent trust and bring action, Section 48 is clear that all trustees must join. But, in the case on hand, it has to be noted that the suit is filed by the Secretary of the trust and not by anyone of the trustees. In the cross-examination of P.W.1, nowhere it is disputed that he is not having any power to initiate any suit. However, answers are elicited that there are nine trustees and suggestion was made that suit schedule property is not owned by the plaintiff-trust and the defendant themselves has made the suggestion that suit schedule property is not owned by the plaintiff-trust and only disputed the ownership of the plaintiff. When such being the case, when the defendant has not disputed that the plaintiff was not having any capacity to file the suit, the very contention which has been raised for the first time in the appeal that suit is hit by Sections 47 and 48 of the Indian Trusts Act and the same is not maintainable cannot be accepted. The Court has to take note of the nature of the relief sought in the suit and the said suit is filed only on account of non-payment of rent when the legal notice issued in terms of Ex.P2 was neither replied by the defendant nor paid any arrears of rent. Hence, the plaintiff was forced to issue another notice and initiated suit for recovery of possession. 33 Therefore, I do not find any force in the contention of the learned counsel for the appellant-defendant which has been raised for the first time in the appeal that suit is not maintainable and no such defence was taken in the written statement. If such plea was taken before the Trial Court, the plaintiff would have taken steps to bring all the co-trustees on record.
51. The Apex Court also, in the judgment in J.J. LAL's case (supra) held that, in a suit for recovery of arrears of money as against the tenant and either of the applicants is neither necessary for the decision of the question involved in these proceedings nor their presence is necessary to enable the court effectually and completely to adjudicate upon and settle the questions involved in the proceedings. I have already pointed out that the suit initiated is not for disputing or conveying any trust property. However, this Court also in the unreported judgment referring the judgment of the Apex Court reported in AIR 1965 SC 271 held that, though the Court could direct the necessary parties to be joined, but this should be done at the stage of trial and that too, without prejudice to the plea of the 34 parties as to limitation. I have already pointed out that the judgment of the Apex Court is clear that the contention of maintainability of suit should have been raised at the stage of trial before the Trial Court and no such plea was raised before the Trial Court and for the first time, surprisingly, the said defence was taken before this Court in the present appeal. Hence, I answer point No.(i) as 'negative'.
Point Nos.(ii) and (iii)
52. Both the plaintiff and defendant have filed the applications under Order 41, Rule 27 of C.P.C. seeking permission to produce additional documents. In I.A.No.1/2005, the appellant has sought to produce tax paid receipt, endorsement and RTC extracts of the year 2004-2005. In I.A.No.1/2016, the appellant has sought to produce khatha certificate issued in 2010 and tax paid receipts which are all subsequent to the filing of suit. In I.A.No.1/2020, the appellant has also sought for production of income tax returns and endorsement. On the other hand, the respondent-plaintiff has also filed I.A.No.2/2020 seeking permission of this Court to produce documents of partition deed of the year 1951, sketch 35 map of 1959, representation of 1987, endorsement of 1987 and village map of 1987. All these documents are filed by both the plaintiff and defendant to establish their title and identification of the property is concerned. Apart from that, the documents relied upon by the appellant-defendant are the documents subsequent to the filing of the suit.
53. It has to be noted that the suit was filed in the year 2000. The Court has to look into the nature of relief sought in the suit i.e., only with regard to establishing the jural relationship between the parties and not in respect of title of parties. The suit filed is not in respect of declaration of the title and the Court has to see the limited dispute between the parties whether there exists a jural relationship between the parties. When such being the facts and circumstances of the case, I am of the opinion that the documents which have been sought to be produced invoking Order 41, Rule 27 of C.P.C. by both the plaintiff and defendant are not necessary to resolve the issue between the parties. In order to prove the fact whether there exists jural relationship between the parties or not, these documents are not necessary and in order to prove the germane 36 issues involved between the parties, in such circumstances, the Court can permit the parties to produce additional documents. But, both the plaintiff and defendant have not made out any ground to allow these applications. Hence, the applications filed by both the plaintiff and defendant are dismissed. Accordingly, I answer point Nos.(ii) and (iii) as 'negative'. Point Nos.(iv) and (v)
54. It is the case of the plaintiff that defendant is a tenant on a monthly rent of Rs.800/- per month. He has paid the rent upto 31.12.1986 and thereafter, committed default in payment of rent. Hence, legal notice was issued on 17.07.1998 in terms of Ex.P2 and the same was acknowledged in terms of Ex.P3 and no reply was given. Hence, another notice was given in terms of Ex.P4 terminating the tenancy under Section 106 of T.P. Act and no reply was given and not responded to the same. Hence, the suit is filed.
55. On the other hand, defendant mainly contended that there is no jural relationship of landlord and tenant between the parties and he is not a tenant under the plaintiff and he has also 37 not paid the rent at the rate of Rs.800/- per month at no point of time. The plaintiff, in order to substantiate their contention, examined P.W.1, who claims to be the Secretary of the trust. In his evidence, he categorically says that he is the Secretary of the plaintiff-trust having been duly appointed under the trust deed at Ex.P1 and he has filed the suit on behalf of the plaintiff-trust and he is authorized to swear to this affidavit. He further states that plaintiff is a religious, charitable and educational trust duly constituted and registered under the provisions of the Indian Trusts Act. He mainly relied upon the document at Ex.P1 and also the other documents. He also reiterated the plaint averments in his affidavit. He was subjected to cross- examination. In the cross-examination, he admits that trust has maintained a minute book and also books of account. He admits that he has not produced any of the documents before the Court. The trust is not an assessee under the Income Tax Act. The trust is not having any income other than rental income.
56. Further, in the cross-examination, a suggestion was made that property is not owned by the plaintiff-trust and the same was denied and admits that plaintiff has not paid the tax in 38 respect of the suit schedule property and also khatha stands in the name of the trust. He admits that earlier to 1984, the defendant was running a garage under the name and style 'Universal Automobiles'. P.W.1 though have got the document to show that rent has been paid, but later he says that not having any such document.
57. The plaintiff also examined a witness as P.W.2 and through him, Exs.P8 and P9 are produced. He was subjected to cross-examination. In the cross-examination, he admits that super structure of the auto garage was got constructed by the defendant and also admits that defendant has not signed anywhere in Ex.P8. It is suggested that Ex.P8 was concocted and the said suggestion was denied.
58. The defendant also examined himself as D.W.1. He claims that he is carrying on the said service station in the schedule premises from the year 1974 and he has put up all the constructions over a period of time from the year 1974 and also produced documents Exs.D1 to D5-photographs, Exs.D7 to D12- negatives. There is no resolution that has been passed by the Trustees of the plaintiff-trust to file the suit and he has not paid 39 the rent to the plaintiff at any tine of time and no relationship of landlord and tenant.
59. He was subjected to cross-examination. In the cross-examination, it is elicited that the suit schedule property is not his own property and also, he does not know, who is the owner of the said property. But, he claims that he occupied the suit schedule property in 1974 when it was a vacant land and like a jungle. He did not putforth effort to know who is the owner of the said property. He admits, earlier to 1974 abutting to the said vacant land, the Temple of Muneswara Swamy was there in existence. He did not enquire neighboring owners to know who is the owner of the said vacant land. He admits, in the income tax returns, in the sources of income, he had shown the income derived from the auto garage and also the income from the rent. It is suggested that, in his returns, he had shown that he is paying the rent in respect of the suit schedule property and the same was denied. He admits that he has not obtained licence from the Corporation to run a garage and further admits that he required electrical energy to run the workshop and 40 obtained power supply in respect of suit schedule property during 1983, December.
60. He further admits that he started to do business at suit schedule property only after obtaining sanction from Maruthi Udyog. He had not obtained any plan or license from BDA to put up construction. He had not got the tax assessment done in respect of the suit schedule property. He admits that suit schedule property is situate on the Hosur Main Road and further admits that, towards the left side of said Access Technology, Bangalore Diary is situated. The suit schedule property is located in a developed area. He admits that he did not give any reply when he received notice as per Ex.P2 and also he did not approach an Advocate when he received notice as per Ex.P2. He admits that he did not obtain any written undertaking from A.B. Surya, when he received the notice. It is elicited that he has not made any enquiries to ascertain or confirm as to who is the owner of the scheduled premises, until this day. He does not know anything about the plaintiff-trust till today. He admits that, authorization issued by Maruthi Udyog Limited for running the service station has been withdrawn with effect from 41 28.11.2000 and further admits that he is using the schedule premises for non-residential purpose.
61. Having considering the oral evidence of P.Ws.1 and 2 and the evidence of D.W.1 and also the documentary evidence, Ex.P1 discloses that trust was formed in the year 1983 which was founded for religious, charitable and educational purpose. The trust constitutes nine members and the job of the Secretary is also mentioned in the document at Ex.P1 and powers are given to the Secretary to maintain the account and in case of any need, the same can be placed before the trust and can get the permission. In terms of Ex.P1, powers are also given to the Secretary on behalf of the trust to appear before the Court and the Executing Committee can exercise the same.
62. On perusal of Ex.P2, notice was given to defendant on 17.07.1998 and the same was served wherein, it is specifically mentioned that he has not paid the rent from 01.01.1997 and he is in arrears of rent from 01.01.1997 to the tune of Rs.14,400/- till 30.06.1998. This notice is acknowledged by defendant and no reply was given. Admittedly, an attempt is made to state that he approached the Secretary and the 42 Secretary told him to ignore the same but, nothing is placed on record to establish the fact that he approaching the Secretary. During the course of cross-examination of P.W.1 also, nothing is elicited regarding the defendant had approached the P.W.1 and P.W.1 told him to ignore the same. But, the D.W.1 categorically admits in the cross-examination that he did not send any reply when he received the notice as per Ex.P2. He also categorically admits that, he did not approach the Advocate when he received the notice as per Ex.P2 and he did not obtain any written undertaking from P.W.1 when he received the notice. Hence, it is clear that the defence, no jural relationship between the parties is set up only during the time of filing the written statement.
63. It is also important to note that, before filing the suit, notice at Ex.P4 was sent to the defendant through registered post to the very same address in Ex.P2 and notice was also sent under Certificate of Posting. It has to be noted that, in the evidence of D.W.1, he has categorically stated that no such notice in terms of Ex.P4 was received. But, it is not his case that, in the said address he is not running the business and 43 admittedly, he is running the business in the very same address in the name and style Universal Auto Services. Exs.P6 and P7 discloses that, notice was sent by registered post as well under Certificate of Posting and no reply was given.
64. No doubt, the learned counsel appearing for the appellant-defendant relied upon several judgments regarding service of notice is concerned, I have already pointed out that, it is not the case of the D.W.1 that he is not running the business in the said address and he has not received the notice in terms of Exs.P2 and P4 in respect of the same address and no reply was given. Hence, it is clear that, inspite of notice was served in terms of Exs.P2 and P4, no reply was given. No doubt, the plaintiff has relied upon Ex.P8 through P.W.2, in terms of Ex.P8, the rent books are maintained from 01.04.1988 wherein, the name of the defendant is also shown. But, no doubt in the cross-examination, it is elicited that defendant has not signed Ex.P8. However, the document at Ex.P8 placed before the Court is the original rent book which clearly discloses that rent book is maintained and rents are collected from 1988 onwards. It is also noticed that all the names of the tenants are in the same 44 handwriting and even though the same does not contain the signature of the defendant, the very silence on the part of the defendant though the notice was issued to him in the year 1988 itself demanding the rent and also terminating the tenancy, it is clear that the defence of no jural relationship between the parties is an afterthought. No doubt, the defendant has also relied upon several documents i.e., photographs and negatives, those documents establishes that he is running the business in the suit schedule property. It is also important to note that admission is elicited from him that he is not the owner of the property and he does not know, who is the owner of the said property.
65. It is rightly pointed out by the learned counsel appearing for the respondent-plaintiff that the defendant should say with whom he took the possession. But, he claims that he himself put up construction in the year 1974. However, in the cross-examination, he categorically admits that in the year 1983, he obtained power supply and in order to prove the fact that he put up construction in the year 1974, no documents are produced. It is also important to note that, he categorically 45 admits that when he started his business, Muneswara Swamy Temple was in existence but, he did not enquire the neighbors as to whom the suit schedule property belongs. Hence, the Court has to take note of the conduct of the defendant, who has been examined as D.W.1. He also categorically admits that he obtained the sales tax registration in the year 1984 and obtained licence from the Corporation.
66. Hence, it is clear that the defendant is in occupation from the year 1983 onwards. He also categorically admits that suit schedule property is located in the developed area and he is using the same for his business purpose. The Trial Court has taken note of the answers elicited from the mouth of D.W.1 that he is not claiming the ownership but, after filing the suit, an attempt is made to obtain document of holder khatha from BBMP and to place the same before this Court disputing the very title of the plaintiff. In a suit for ejectment, the Court also cannot go into the very title of the suit schedule property and it is pertinent to note that that no reply was given to the notices at Exs.P2 and P4 by the defendant. This Court has also taken note of the admission elicited from the mouth of D.W.1 that he is not 46 claiming ownership in respect of the suit schedule property and also he did not make any enquiry with regard to the suit schedule property but, he is in possession of the same.
67. When the legal notice was issued demanding arrears of rent to the defendant and the same was acknowledged, no reply was given by the defendant and an explanation is given that P.W.1 told him to ignore the same and no documents are placed to substantiate the same. The Trial Court has taken note of the fact that no reply was given when the demand was made. The Trial Court has also taken note of the fact that receipt of notice was also admitted and hence, rightly comes to the conclusion that the defendant was in arrears of rent to the plaintiff. The Trial Court has also observed that, with regard to the damages is concerned, it requires enquiry in the final decree proceedings. Hence, I do not find any merit in the appeal to reverse the findings of the Trial Court and this Court can interfere with the findings of the Trial Court only if the material evidence is not considered by the Trial Court and no such occasion has arisen before this Court to come to such an other 47 conclusion. Therefore, I do not find any merit in the appeal. Accordingly, I answer point Nos.(iv) and (v) as 'negative'. Point No.(vi)
68. In view of the discussions made above, I proceed to pass the following:
ORDER
(i) The Regular First Appeal is dismissed.
(ii) The applications filed in I.A.Nos.1/2005,
1/2016 and 1/2020 by the appellant-
defendant and the application in
I.A.No.2/2020 by the respondent-plaintiff
under Order 41, Rule 27 of C.P.C. are also
dismissed.
(iii) Registry is directed to transmit the TCR forthwith.
Sd/-
JUDGE ST