Rajasthan High Court - Jodhpur
Bhanwar Lal & Ors vs Lr'S Of Mishri Lal & Ors on 22 August, 2012
Author: Vineet Kothari
Bench: Vineet Kothari
S.B. CIVIL SECOND APPEAL No.19/2011
Bhanwar Lal & Ors. Vs. LR's of Mishri Lal
Decision dt: 22/08/2012
1/7
IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN
AT JDOHPUR
JUDGMENT
S.B. Civil Second Appeal No.19/2011 Bhanwar Lal & Ors. Vs. LR's of Mishri Lal Date of Judgment ::: 22nd August, 2012 PRESENT HON'BLE DR. JUSTICE VINEET KOTHARI Mr. Bheemkant Vyas, for the appellants-defendants-tenant. Mr. S.G. Ojha, for the respondents-plaintiffs-landlord.
--
1. This second appeal has been filed by the defendants-tenants, Bhanwar Lal and others against the concurrent decree of eviction on the ground of denial of title under Section 13 (1) (f) of the Rajasthan Premises (Control of rent & Eviction) Act, 1950.
2. The learned trial court of Civil Judge (Sr. Division), Pali decreed the eviction suit filed by the original plaintiff- landlord (Mishrilal) being Civil Suit No.132/2005- Mishrilal Vs. Bhanwar Lal & Ors. on the ground of denial of title and bonafide need. The said judgment and decree of learned trial S.B. CIVIL SECOND APPEAL No.19/2011 Bhanwar Lal & Ors. Vs. LR's of Mishri Lal Decision dt: 22/08/2012 2/7 court was assailed by the appellants-defendants by filing first appeal before the learned lower appellate court. However, the Civil Appeal No.11/2008 (09/2007)- Bhanwar Lal & Ors. Vs. LR's of Mishrilal, filed by the appellants-defendants came to be rejected by the learned Additional District Judge (FT) No.2, Pali vide the judgment and decree dated 04.03.2010 while concurring the with findings returned by the learned trial court.
3. Mr. Bheemkant Vyas, learned counsel for the appellants-defendants relying upon Hon'ble Supreme Court decision in the case of Prabha Arora & Anr. Vs. Brij Mohini Anand & Ors. reported in 2008 (1) Civil Court Cases 279 (SC) submitted that the property in question known as "Lohiyon-Ki-Bagechi", in which one room was rented out to the defendants-appellants, and that has since been declared to be a Public Trust by the orders of learned Assistant Commissioner, Devsthan Department in the proceedings of Case No.7/85/Pali- Inspector of Devsthan Department, Jodhpur V/s Radhey Shyam S/o Champa lal and Mishrilal S/o Ram Narayan vide order dated 29.01.2008 passed u/s 19 of the Rajasthan Public Trust Act, 1959; and therefore, as per aforesaid Supreme Court decision, since the trustee cannot use the property for his own profit, therefore, the suit filed by the Mishrilal in his individual capacity as landlord on the ground S.B. CIVIL SECOND APPEAL No.19/2011 Bhanwar Lal & Ors. Vs. LR's of Mishri Lal Decision dt: 22/08/2012 3/7 of denial of title by the tenant could not have been decreed and, a substantial question of arises in the present case.
4. On the other hand, Mr. S.G. Ojha, learned counsel appearing on behalf of plaintiffs-respondents, who are the legal representatives of Sh. Mishrilal, submitted that during the execution proceedings, the possession of the suit premises room in question situated in "Lohiyon-Ki-Bagechi" has already been handed over the plaintiffs-respondents on 14.11.2011. He also argued that no substantial question of law arise in the present second appeal because the public trust in question was created by the family members has since been declared to be public trust by the Assistant Commissioner, Devsthan Department only in the year 2008 vide order dated 29.01.2008, a copy whereof has been produced by the defendants- appellants along-with their application under Order 41 Rule 27 CPC. He further submitted that prior to this date, the property in question could not be said to be a property of the public trust, whereas, the eviction suit in the present was filed way-back in the year 2000 and the suit was registered as Civil Original Suit No.131/2000- Mishrilal Vs. Gopal S/o Shambhu and Madan lal S/o Gopal. He, therefore, submitted that the case law relied upon by the learned counsel for the appellants-defendants is not applicable to the facts of the present case, as there is no S.B. CIVIL SECOND APPEAL No.19/2011 Bhanwar Lal & Ors. Vs. LR's of Mishri Lal Decision dt: 22/08/2012 4/7 user of the trust property by the individual trustee in the present case. He also urged that the definition of "landlord" given in the Rent Control Act of 1950 is broad enough, which covers any person who recovers the rent, or even is entitled to recover the rent, and he need not be the owner of the suit property. Therefore, upon denial of title by the defendants-appellants, the courts below have rightly decreed the suit under Section 13 (1)
(f) of the Act of 1950. He further submitted that these are findings of facts based on cogent and relevant evidence and no substantial question of law arises in the present second appeal, and therefore, the present second appeal deserves to be dismissed.
5. Having heard learned counsels for the parties and upon perusal of the impugned judgments and decree and, so also, judgment cited at bar, this Courts finds considerable force in the submission of learned counsel for the respondents, Mr. S.G. Ojha. The Hon'ble Supreme Court in the case of Prabha Arora & Anr. (supra) in para 8 has held as under:
"8. Learned counsel for the respondents, Shri M.N. Krishnamani, submitted that the petition under Section 21 for eviction was filed on the ground that the petitioner wanted to do charitable work, and after creation of the Trust also the purpose remains the same. We do not agree. In the petition under Section 21 it is S.B. CIVIL SECOND APPEAL No.19/2011 Bhanwar Lal & Ors. Vs. LR's of Mishri Lal Decision dt: 22/08/2012 5/7 stated in paragraph nos. 3-7 of the petition that the petitioner has a monthly pension of Rs.538/- only and she wants to augment her income as it is difficult for her to survive on the meager pension. Hence she wants to open a tutorial centre in the premises in dispute to earn some money. The purpose mentioned in the petition under Section 21 was not for doing charitable work. However, after the execution of the trust deed the premises in dispute now belongs to the Trust. The need mentioned in the petition under Section 21 has totally disappeared."
6. The Hon'ble Apex Court relied upon a previous decision in the case of Tulsidas Kilachand & Ors. Vs. Commissioner of Income Tax, AIR 1961 SC 1023, in which it was held that on creation of a Trust the property passes to the Trust, hence, the rent was thereafter required to be paid to the trustees, who will collect it on behalf of Trust. From the quoted para 8 of the above referred judgment, it is clear that after creation of Trust, the Court found that the landlady who wanted to open a tutorial centre in the premises, which was admittedly given to the Trust, could not claim bonafide need of th Trust for such reason and, therefore, the need mentioned in the eviction petition under Section 21 had totally disappeared and, therefore, the tenant's appeal was allowed by the Hon'ble Supreme Court.
S.B. CIVIL SECOND APPEAL No.19/2011 Bhanwar Lal & Ors. Vs. LR's of Mishri Lal Decision dt: 22/08/2012 6/7
7. The said judgment is of little avail to the appellants- defendants in the present case. The same is actually totally distinguishable on the facts. The eviction suit in the present case has admittedly been filed by Mishrilal much prior to creation of the public trust, which was done in the year 2008 only and, so also, the suit was filed in his individual capacity way-back in the year 2000. Admittedly, the defendant was paying the rent to the said Sh. Mishrilal and, therefore, the courts below cannot be said to have erred in holding that the relationship of landlord and tenant was established between the two and decree on specific grounds under Section 13 (1) (f) of the Act of 1950 could be passed.
8. The contention of the learned counsel for the appellants-defendants, Mr. B.K. Vyas, that after creation of the Trust, the property in question actually belonged to the Trust even prior to the said date 29.01.2008 and, therefore, the said Mishrilal could not even maintain the eviction suit, cannot be sustained as no retrospective operation of the said trust-deed or creation of public trust by the orders of Assistant Commissioner, Devasthan Department can be inferred.
9. In the facts and circumstances of the case, to say the least, the judgment relied upon by the learned counsel for the appellants-defendants is not of any help to him. Even S.B. CIVIL SECOND APPEAL No.19/2011 Bhanwar Lal & Ors. Vs. LR's of Mishri Lal Decision dt: 22/08/2012 7/7 otherwise also, this Court finds that the findings of facts returned by the courts below about the denial of title giving rise the ground of eviction to the landlord are proper findings of fact and no substantial question of law arises out of the said judgments and decree. The second appeal, therefore, deserves to be dismissed. The same is accordingly dismissed. No costs.
10. Since, the possession of the suit premises (room) in question has already been handed over the plaintiffs-landlord, therefore, no further orders for eviction are required to be passed at this stage and the eviction is hereby confirmed. The arrears of rent and mesne profit, if any due, shall be paid by the defendant-tenant within a period of three months from today, otherwise, the amount of arrears will carry interest @ 9% p.a. till payment. A copy of this judgment be sent to both the parties and both the learned courts below forthwith.
(DR. VINEET KOTHARI), J.
DJ/-
14