Madhya Pradesh High Court
Babasahab Phalke (Death) Thr. Lrs ... vs Scindia Devesthan Trust Registered ... on 3 May, 2021
Equivalent citations: AIRONLINE 2021 MP 711
Author: Rajeev Kumar Shrivastava
Bench: Rajeev Kumar Shrivastava
HIGH COURT OF MADHYA PRADESH
BENCH AT GWALIOR
(Single Bench)
SECOND APPEAL NO. 49 OF 2015
Babasahab Phalke ..... APPELLANT
Versus
Scindia Devsthan Trust & others .....RESPONDENTS
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CORAM
Hon. Shri Justice Rajeev Kumar Shrivastava
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Appearance
Shri K.N. Gupta, learned Senior Counsel with Shri S.G. Chitnis,
learned counsel for the appellant.
Shri Ankur Mody, learned counsel for the respondents.
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Whether approved for Reporting : No
Reserved on : 17/03/2021
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JUDGMENT
(Passed on 3rd May, 2021) This Second Appeal has been preferred under Section 100 of Civil Procedure Code, 1908 by the appellant against the judgment and decree dated 19/12/2014 passed in Regular Civil Appeal No.09/2012 by IV Additional District Judge, Gwalior, District Gwalior, whereby judgment & decree dated 23/12/2011 passed in Civil Suit No.19A/2011 by IV Additional Civil Judge Class-II, Gwalior, has been affirmed.
2. For the sake of convenience, hereinafter appellant will be referred as defendant and respondents No. 1 to 6 will be referred as plaintiffs. 2 S.A. No. 49/2015
(Babasahab Phalke Vs. Scindia Devsthan Trust & others)
3. The admitted fact of the case is that on the date of filing of suit, the defendant was the tenant as per deed dated 11/07/1957 at the rent of Rs.500/- in new building No. 261, ward No.47, Chhatri Bazar, Lashkar, Gwalior, which is reflected in the plaint map by demarcating through red lines.
4. Brief facts of the case are that the plaintiffs filed a suit for eviction and recovery of arrears of rent in respect of disputed property against the defendant by pleading that Scindia Devsthan Trust is a religious registered trust vide registered deed dated 14/05/1952 bearing registration No. A/931 Puna (Bombay) dated 05/02/1958 and its head office is at 27, Safdarjang Road, New Delhi and for the administrative purpose, local office is at Jai Vilas Palace Parisar, Lashkar, Gwalior. The plaintiffs No.2 to 6 are the trustees and after the death of its the-then Chairperson, plaintiff No.2 is Chairman of the Trust and Rana Karan Singh is the Secretary as per resolution of the trust dated 24/12/2007, who has been authorized to conduct the proceedings of the Court etc. Defendants No.2 & 3 are proforma parties. The trust being a title holder of the property namely, Chhatri Daulatrao Maharaj Parisar, Chhatri Mandi, Chhatri Bazar, Lashkar, Gwalior, of which municipal house No.261 is disputed part of the property.
5. The defendant is tenant by virtue of rent deed dated 11/07/1957 at the rate of Rs.500/- per month. The tenanted premises is shown in plaint map marked by letter "B" which is shown by red lines. The defendant is defaulter of rent since year 2010 and has also included the open land beyond the authorized tenancy building. The trust wanted to discontinue 3 S.A. No. 49/2015 (Babasahab Phalke Vs. Scindia Devsthan Trust & others) the tenancy of the defendant, therefore served a registered notice to quit for vacating the suit premises and for payment of arrears of rent. The trust being registered under Public Trust Act, therefore, the provisions of M.P. Accommodation Control Act have no application in the matter. The defendant raised the objection that the Secretary was not duly authorized to file a suit and besides that, the Trust was not registered under the provisions of M.P. Public Trust Act, therefore, the suit filed was not maintainable. In notice to quit dated 20/02/2010, there was no mention as to authorization of Shri Rana to file the suit. The allegations made in the plaint are false and baseless. The defendant is not the defaulter of the payment of rent as the trust was not registered under the provisions of M.P. Public Trust Act, therefore, the benefit of Section 32 of M.P. Accommodation Control Act is not permissible.
6. The grounds pleaded are that the appellate Court has wrongly affirmed the judgment & decree passed by the trial Court, despite of the fact that the plaintiff No.1 is not a registered trust under the provisions of M.P. Public Trust Act. Merely a registration of the Trust under the provisions of Maharashtra Public Trust Act cannot be treated as registered trust for all the purposes in regard of the property situated in Madhya Pradesh. The notification dated 07/09/1989 was published in exercise of powers conferred by sub-section (2) of Section 3 of M.P. Accommodation Control Act, by which the exemption was granted in regard of all accommodation owned and controlled under the Wakf Act and public trust registered under the M.P. Public Trust Act. The expression as employed in the notification "Public Trust registered under the M.P. Public Trust Act, 4 S.A. No. 49/2015 (Babasahab Phalke Vs. Scindia Devsthan Trust & others) 1951", make it clear that the registered trust plaintiff No.1 being not registered under the provisions of M.P. Public Trust Act, therefore plaintiff No.1 has no avail of M.P. Accommodation Control Act. The judgment & decree passed by the Appellate Court as well as trial Court suffers legal infirmity. The trial Court while dealing the matter, has wrongly held that the suit is maintainable. The sole issue involved in the matter which ought to have been decided in the context of trust registered under the provisions of M.P. Public Trust Act, not otherwise. When the language is clear and intention behind the notification is clear, the consideration of expression above the provisions is not permissible. The Appellate Court has wrongly held that notice to quit the premises as served upon the defendant is sufficient for termination of tenancy and after service of notice, the defendant becomes trespasser over the disputed property. The notice to quit the premises (Ex-P/3) is not in accordance with the provisions of Section 106 read with Section 111 of Transfer of Property Act and the notice infact depicts and demonstrate that the same was given treating the operation of provisions of M.P. Accommodation Control Act. The Courts below wrongly interpreted Sections 106 & 111 of Transfer of Property Act and decree passed on the basis of above is against law. Hence, this second appeal by the appellant/ defendant.
7. Learned counsel for the appellant-defendant has submitted that the trust was registered under Maharashtra Public Trust Act and the property is situated at Gwalior (M.P.), therefore no benefit could be awarded as provisioned under M.P. Public Trust Act. The notification issued in the year 1989 was withdrawn, therefore the benefit could not be availed by the 5 S.A. No. 49/2015 (Babasahab Phalke Vs. Scindia Devsthan Trust & others) plaintiffs on the basis of aforesaid notification. It is further submitted that as the trust is not registered under M.P. Public Trust Act, no benefit could be awarded to the plaintiffs under Accommodation Control Act. Hence, prays for quashing the judgment & decree passed by both the Courts below.
8. Learned counsel for the respondents- plaintiffs has opposed the submissions made on behalf of the appellant- defendant and has submitted that the first appellate Court as well as the trial Court has rightly considered and passed the impugned judgment & decree. It is further submitted that it is true that the trust, which is a religious trust, has been registered under Maharashtra Public Trust Act. Earlier one notification was issued in the year 1989 which was withdrawn. Thereafter, again one notification has been issued in the year 2019 and the plaintiff is entitled to get the benefits as awarded under the notification of 2019. It is further submitted that under Section 3 of M.P. Accommodation Control Act along with Section 20 of M.P. Accommodation Control Act, the plaintiff- respondent is also protected, therefore, the notice under Sections 106 & 111 Part (h) of Transfer of Property Act is a valid notice. Learned counsel for the respondents has also submitted that in exercise of powers under Section 36 of M.P. Public Trust Act, State of M.P. exempted Scindia Devasthan Trust from all the provisions of M.P. Public Trust Act on 04/07/1968. It is further submitted that the aforesaid order was revoked vide notification dated 18/03/1971. Thereafter, one Miscellaneous Petition No. 35/1972 was filed by Scindia Devasthan Trust assailing the validity of notification dated 18/03/1971, which was dismissed by the Division Bench 6 S.A. No. 49/2015 (Babasahab Phalke Vs. Scindia Devsthan Trust & others) of this Court. Again vide notification dated 07/09/1989, State of M.P. in exercise of powers conferred under Section 3(2) of M.P. Accommodation Control Act, exempted all the public trusts registered under M.P. Public Trust Act for educational, religious and charitable purposes.
9. Learned counsel for the respondents- plaintiffs relied upon the decision rendered in the case of Shri Bhagwatacharya Narayan Dharmarth Trust, Balaji Mandir and others Vs. Jaiprakash [2011(I) MPACJ 156], wherein it was held that "even a trust registered outside the State of Madhya Pradesh having property in the Madhya Pradesh is entitled for the benefit of exemption under the notification dated 07/09/1989". It is also submitted that apart from above, on 12/07/2019, State of M.P., in exercise of powers vested under Section 3(2) of M.P. Accommodation Control Act, has notified that in continuation to the previous notification dated 07/09/1989, the public charitable trusts having property in the State of M.P. despite registered outside of M.P., are also exempted from the provisions of M.P. Accommodation Control Act. It further specifies that the notification is also applicable on the pending cases, therefore both the Courts below have rightly considered the case of plaintiffs-respondents. Hence, under aforesaid facts and circumstances of the case, learned counsel for the respondents prays for dismissal of this second appeal at the stage of admission.
10. Heard learned counsel for the rival parties and perused the available record.
11. Section 100 CPC reads as under:-
7 S.A. No. 49/2015
(Babasahab Phalke Vs. Scindia Devsthan Trust & others) "100.Second Appeal. - (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.
(2) An appeal may lie under this section from an appellate decree passed ex-parte.
(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.
(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.
(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:
Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."
12. In second appeal under Section 100 of CPC, the scope of exercise of the jurisdiction by the High Court is limited to the substantial question of law. Substantial question of law must be debatable, not previously settled by law of the land or a binding precedent and answer to the same will have a material bearing as to the rights of parties before the Court. Existence of a substantial question of law is sine-qua non for the exercise of jurisdiction under the provisions of Section 100 of CPC. The second appeal does not lie on the ground of erroneous findings of facts based on appreciation of the relevant evidence.
8 S.A. No. 49/2015
(Babasahab Phalke Vs. Scindia Devsthan Trust & others)
13. It is admitted fact that defendant - Babasahab Phalke is the tenant as per rent deed dated 11/07/1957 at rent of Rs.500/- per month.
14. The trial Court has decreed the suit in favour of the plaintiffs and the first Appellate Court has affirmed the judgment & decree passed by the trial Court considering the fact that defendant No.1 is the tenant as mentioned above and one notice (Ex-P/3) was sent to him, thereby tenancy was terminated from midnight of 31/03/2010 and it was also directed to vacate the suit premises. It is also observed by first Appellate Court that as per condition No.11 of rent deed, the plaintiffs were having right to terminate the tenancy by giving fifteen days notice. The aforesaid notice was given under Sections 106 & 111 part (h) of Transfer of Property Act. The tenancy was terminated from the midnight of 31/03/2010.
15. Rana Karan Singh (PW-1) has stated that on the last occasion, the defendant paid rent till 31/12/2009, receipt whereof is exhibit-P/2 and from 01/01/2010 onwards, the defendant is defaulter, therefore notice (Ex-P/3) was sent to the defendant but he did not comply with the same. The aforesaid notice was issued on 20/02/2010 and as per rent deed (exhibit- P/1), there is one condition that the tenant would pay rent before the 10 th of every coming month. The aforesaid fact has not been rebutted, therefore, the Courts below have rightly decided that despite notice under Sections 106 & 111 part (h) of Transfer of Property Act, the tenancy was terminated from midnight of 31/03/2010.
16. The first Appellate Court has also observed that the authority to file suit by the Secretary - Rana Karan Singh, was not challenged and cited the 9 S.A. No. 49/2015 (Babasahab Phalke Vs. Scindia Devsthan Trust & others) judgment passed in M.A. No. 762/2012 (Scindia Devsthan Registered Charitable Trust thr. Secretary Vs. Praveen Kumar Nigam & others) and in M.A. No. 884/2012 (Scindia Devsthan Registered Charitable Trust Vs. Smt. Vijaya Jagtap & others), wherein the Division Bench of this Court on 05/07/2013 has observed that "whenever any trust is registered for charitable purposes, then it is not required to be proved that the earning against the property has been used for religious and charitable purposes" and also observed that the judgment passed in the case of Registrar, Vidhichand Dharmshala Vs. Shyam Singh [2010 (III) MPJR 142] is not a correct law. It was also observed in the aforesaid judgment that the fact of use of earnings for religious and charitable purposes is one of the requirement which is to be considered by the State while registering the trust under the aforesaid Act and once it is registered, there is no need of any enquiry by the civil Court.
17. In Betibai & others Vs. Nathooram & others [AIR 1999 SC 1767], it has been observed that:-
"7. The decision of this Court in Mangilal's case (1998 AIR SCW 3938) (supra), upon which reliance has been placed is distinguishable as the only question pleaded in that case was that since the Notification dated 7th September, 1989 has been held to be bad by the High Court in respect of Wakf properties only, the trust properties would continue to be exempted from the operation of the Act. This plea was not accepted and it was held that the Notification dated 7th September, 1989 was a composite Notification which applied not only to the Wakf properties but also to other charitable trust properties, and since this Notification has been held to be bad in respect of the Wakf properties, it would be bad for all other properties, including trust properties, which were sought to be exempted from the operation of the Act. The validity of the 10 S.A. No. 49/2015 (Babasahab Phalke Vs. Scindia Devsthan Trust & others) Notification was not questioned in that decision. Moreover, it was not brought to the notice of Their Lordships, who decided that case, that against the decision of the Madhya Pradesh High Court in Chintamani's case (supra), Civil Appeal No. 9909 of 1995 (arising from S.L.P. (Civil) No.4360 of 1994) was filed in this Court, which was decided on October 19, 1995 and the decision of the Madhya Pradesh High Court was reversed with a categorical finding that the Notification issued by the Madhya Pradesh Govt. exempting the Wakf and Trusts properties from the operation of the Act was valid."
18. In Payal Vision Limited Vs. Radhika Choudhary [(2012) 11 SCC 405], it is held:-
"12. Incidentally, the defendant appears to have raised in the written statement a plea regarding the nature and extent of the super structure also. While the plaintiffs case is that the super structure as it existed on the date of the lease deed had been let out to the defendant and the defendant had made structural changes without any authorisation, the defendants case is that the super structure was constructed by her at her own cost pursuant to some oral agreement between the parties. It is unnecessary for us to delve deep into that aspect of the dispute, for the nature and extent of superstructure or the legality of the changes allegedly made by the defendant is not relevant to the determination of the question whether the existence of tenancy is admitted by the defendant. At any rate, nature and extent of structure whether modified or even re- constructed by the defendant is a matter that can not alter the nature of the possession which the defendant holds in terms of the agreement executed by her. The relationship of the landlord and the tenant remains unaffected even if the tenant has with or without the consent of the landlord made structural changes in the property. Indeed if the tenancy was protected by the rent law and making of structural changes was a ground for eviction recognised by such law, it may have been necessary to examine whether the structure was altered and if so with or without the consent of the parties. That is not the position in the present case. The tenancy in question is not protected under the Rent Control Act having regard to the fact that the 11 S.A. No. 49/2015 (Babasahab Phalke Vs. Scindia Devsthan Trust & others) rate of rent is more than Rs 3500 per month. It is, therefore, of little significance whether any structural change was made by the defendant and if so whether the same was authorised or otherwise. The essence of the matter is that the relationship of the landlord and the tenant is clearly admitted. That is the most significant aspect to be examined by the Court in a suit for possession especially when the plaintiff seeks a decree on the basis of admissions."
19. In Jeewan Dass Vs. Life Insurance Corporation of India & another [1994 Supp (3) SCC 694], it is held:-
"4. Section 106 of the T.P. Act does indicate that the landlord is entitled to terminate the tenancy by giving 15 days' notice, if it is a premises occupied on monthly tenancy and by giving 6 months' notice and if the premises are occupied for agricultural or manufacturing purposes; and on expiry thereof proceedings could be initiated. Section 106 of the T.P. Act does not contemplate of giving any reason for terminating the tenancy. Equally the definition of the public premises "unauthorised occupation"
under Section 2(g) of the Act postulates that the tenancy "has been determined for any reason whatsoever". When the statute has advisedly give wide powers to the public-authorities under the Act to determine the tenancy, it is not permissible to cut down the width of the powers by reading into it the reasonable and justifiable grounds for initiating action for terminating the tenancy under Section 106 of the T.P. Act. If it is so read Section 106 of T.P. Act and Section 2(g) of the Act would become ultra vires. The statute advisedly empowered the authority to act in the public interest and determine the tenancy or leave or licence before taking action under Section 5 of the Act. If the contention of the appellant is given acceptance he would be put on a higher pedestal than a statutory tenant under the Rent Act." 12 S.A. No. 49/2015
(Babasahab Phalke Vs. Scindia Devsthan Trust & others)
20. In State of U.P. through Collector Vs. Smt. Ram Rani Jaiswal [Civil Revision No.296/2008 order dated 27/01/2009], it has been observed:-
"This Court in the case of Vinod Kumar Rastogi vs. III Additional District Judge, 2003 (2) ARC 377 has taken the view that even if the provisions of U.P. Act No. XIII of 1972 does not apply, the provisions of Section 114 of the Transfer of Property Act will not become applicable automatically unless lease is determined for non-payment of rent. Thus, inevitable conclusion is that where the provisions of U.P. Act No. XIII of 1972 are not applicable, after giving notice of 30 days, under Section 106 of Transfer of Property Act landlord has got unfettered right to terminate the tenancy without assigning any reason, whatsoever, and at the time of terminating tenancy other additional grounds can be taken for filing suit. For getting the benefit of Section 114 of the Transfer of Property Act, tenant will have to show that landlord has exercised his right of forfeiture under Section 111 (g). The provisions of Section 114 are not at all applicable when lease is determined by serving notice to quit under Section 106 of Transfer of Property Act."
21. In Shri Bhagwatacharya Narayan Dharmarth Trust, Balaji Mandir and others Vs. Jaiprakash [2011(I) MPACJ 156], it has been held:-
"(9.) From perusal of the judgment it is evident that the learned Courts below dismissed the suit filed by the appellant Trust holding that the appellant trust has failed to make out a case for eviction under Section 12 of M.P. Accommodation Control Act as the appellant has failed to prove the bonafide requirement. Section 3(2) of the M.P. Accommodation Control Act empowers the Government to exempt from all or any of the 13 S.A. No. 49/2015 (Babasahab Phalke Vs. Scindia Devsthan Trust & others) provisions of this Act which is owned by educational, relegious or charitable institution. Even if an institution who is not covered under Section 3(2) of M.P. Accommodation Control Act files a suit for eviction, then too, the said institution is not governed by Section 12 of M.P. Accommodation Control Act. but is governed by Section 20 of M.P. Accommodation Control Act, which lays down a special provision for recovery of possession where the landlord is any company or other body body corporate or any local authority or any public institution. Since appellant Trust is public institution, therefore. Section 12 of MP Accommodation Control Act is not applicable in the present case. Even if it is assumed for the sake of argument that appellant Trust is not entitled for the benefit of exemption as appellant Trust is registered at Bombay, then too, it is only Section 20 of M.P. Accommodation Control Act which is applicable. Since the appellant is a registered charitable Trust, therefore, in view of the notification dated 07/09/ 89 it was not necessary for the appellant to make out a case either under Section 12 or 20 of M.P. Accommodation Control Act and the appellant was entitled to terminate the tenancy of the respondent under Section 106 of TP. Act."
22. Considering the aforesaid, the first Appellate Court has rightly affirmed the judgment & decree passed by the trial Court and has rightly decided that the suit is maintainable.
23. In view of the foregoing discussion, and as the plaintiff- trust is a religious trust and it has been granted privileges in the light of notification dated 12/07/2019, whereby State of M.P. in exercise of powers vested under Section 3(2) of M.P. Accommodation Control Act, has notified that in continuation to the previous notification dated 07/09/1989, the public charitable trusts having property in the State of M.P. despite registered outside of M.P., are also exempted from the provisions of M.P. 14 S.A. No. 49/2015 (Babasahab Phalke Vs. Scindia Devsthan Trust & others) Accommodation Control Act and also specify that the notification is also applicable on the pending cases, this Court is of the considered view that no substantial question of law involved in the present second appeal. Consequently, present second appeal is hereby dismissed being devoid of merits.
(Rajeev Kumar Shrivastava) Judge Shubhankar* SHUBHANKAR MISHRA 2021.05.03 17:07:27 +05'30'