Madhya Pradesh High Court
Smt. Pushpa Devi vs Shivsai Mandir Trust on 6 July, 2015
SA-528-2015
(SMT. PUSHPA DEVI Vs SHIVSAI MANDIR TRUST)
06-07-2015
Shri P.R. Bhave, learned Senior Advocate assisted by Shri
Sanjay Sharma, learned counsel for the appellant.
Shri G.S. Baghel, learned counsel for the respondent.
Heard on the question of admission.
ORDER
1. The appellant/defendant has filed this appeal against the judgment and decree dated 17.04.2015 passed in Civil Appeal No.4-A/2013. The appellate Court affirmed the judgment and decree passed by the trial Court.
2. The respondent/plaintiff is a Trust registered under the provisions of Public Trust Act. The registration number of the Trust is 1/2008. It filed a suit for eviction against the appellant/defendant. The plaintiff pleaded that the Trust is owner of the suit Shops constructed on both the side of the temple. The Shop No.5 was rented out to the appellant/defendant on a monthly rent of Rs.260/- per month. The Committee of the Trust decided to take possession of the suit shop because the space occupied by the Shops is required for the temple. In order to cater requirements of devotes, a notice was issued to the appellant- defendant on 15.10.2011 and her tenancy was terminated with effect from 30.11.2011. The appellant-defendant was directed to handover possession of the suit shop on 1.12.2011 inspite that, the possession was not handed over hence, the possession of the appellant-defendant was illegal.
3. The appellant-defendant in her written statement denied the pleadings of the plaint. She pleaded that the suit Shop was of the ownership of 'Shiv Mandir Samiti' Balaghat. It was rented out in the year 1978 to the husband of the defendant at the rate of Rs.30/- per month and the rent was enhanced from time to time. Before two-three years, an idol of Lord 'Sai Baba' was established in the temple and the defendant has been occupying the suit Shop.
4. The trial Court after appreciation of the evidence has held that the plaintiff Trust is a religious and charitable Trust, it authorized it's Secretary to institute the suit. As per Section 3 of the M.P. Accommodation Control Act 1961 (in short 'the Act 1961'), the plaintiff Trust is exempted from the provisions of the Act 1961. A notice was issued to the appellant-defendant terminating the tenancy in accordance with the provision of Section 106 of the Transfer of Property Act and consequently, the tenancy of the appellant was terminated. The suit shop was required bonafide by the plaintiff-Trust and passed the decree of eviction.
5. The appellate-defendant filed an appeal against the judgment and decree passed by the trial Court. The appellate Court again re- appreciated the findings of facts recorded by the trial Court and affirmed the judgment and decree passed by the trial Court.
6. Learned senior counsel appearing on behalf of the appellant has contended that the plaintiff-respondent is not entitled to get exemption in accordance with Section 3 of the Act 1961. The ingredients of Section 20 of the Act 1961, were also not fulfilled by the respondent-plaintiff. The suit was not filed by the competent authority and the provisions of Section 106 of the Transfer of Property Act would not be applicable in the present case hence, the appeal be admitted for hearing on the proposed substantial questions of law mentioned in the appeal memo.
7. It is an admitted fact that the Trust was registered by the Registrar, Public Trust under the provisions of Public Trust Act. The Registration certificate has been filed by the plaintiff-respondent as (Ex.P.2). The resolution passed by the Trust has also been filed before the Trial Court as (Ex.P.3). By the aforesaid resolution, the trustees of the Trust authorized the Secretary of the Trust to file the suit in regard to eviction of tenants who were occupying the suit Shops of the Trust. An agreement was entered between the appellant and the Trust in regard to renting out the Shop has also been filed before the trial Court as (Ex.P.21).
8. On behalf of the Trust, Mr. Vamanrao Mandlekar in his evidence deposed that the Trust was constituted to look after the affairs of 'Sai Temple'. The Trust had taken a decision to make construction which would be convenient for the devotees. Hence, the Trust had taken a decision to take possession of the suit Shop. A notice was issued to the appellant-defendant to vacate the premises. The plaintiff-Trust is a Public Trust, it has been looking after the affairs of 'Sai Baba' temple and looking to increase in number of devotees, it is necessary to make construction. In his cross- examination, he admitted the fact that earlier owner of the land was 'Shiv Mandir' Committee and thereafter, Sai Mandir was constructed. The notice dated 15.10.2011 (Ex.P.4) was issued to the appellant. Second notice was also issued on 29.10.2011 inspite that, the appellant did not vacate the suit Shop. The receipt of the notice was filed as (Ex.P.5) and the acknowledgment of the same is (Ex.P.6). The receipt of the second notice (Ex.P.7) was filed as (Ex.P.8) and its receipt is (Ex.P.9). On the basis of aforesaid notices, it is clear that both the Courts below have held that the notices were duly served on the appellant in accordance with Section 106 of the Transfer of Property Act. The appellate Court and the trial Court further held that the Trust is religious and Charitable Trust copy of the audit reports in regard to accounts of the Trust from the year 2008-2010 were filed Ex.P.18 to Ex.P.20. Both the Courts have reached on a finding that the Trust was working as Public Trust and it has been looking after the temple of Sai Baba. Religious functions used to be organized by the Trust in the temple. The findings of both the Courts below that the plaintiff Trust is a religious and Charitable Trust are based on appreciation of documentary and oral evidence.
9. It is well settled principle of law that at the stage of second appeal the findings of facts recorded by both the Courts below could not be interfered, if the findings are not perverse. In the present case, there is no perversity in the findings of facts recorded by both the Courts below to the effect that the Trust is a Public and religious Trust. Section 3 of the Act 1961 prescribes exemption in regard to application of the Act 1961 under certain circumstances. Section 3 (2) of the Act 1961 reads as under:-
â (2) The Government may, by notification, exempt from all or any of the provisions of this Act any accommodation which is owned by any educational, religious or charitable institution or by any nursing or maternity home, the whole of the income derived from which is utilised for that institution or nursing home or maternity home.â The aforesaid provision has been considered by the Supreme Court in the case of Betibai and others vs. Nathooram and others reported in AIR 1999 SC page 1767 and the Court has held that Government issued notification exempting property belonging to religious and charitable Trust from the provisions of the Act 1961. The Division Bench of this Court in the case of Bipin Bhai Shankar Bhai Patel vs Murti Deo Radha Madhavlalji Geda Trust Sagar and others reported in 1999 (1) MPLJ 133 has also considered the notification issued by the Government and the provision of Section 3(2) of the Act 1961 and held as under:-
â 7. From a bare reading of sub-section (2) of Section 3 of the Act, it is evident that it gives power to State Government by issue of notification under sub-Section (2) of Section 3 to exempt accommodation from all or any of the provisions of the Act which is owned by any educational, religious or charitable institution or by any nursing or maternity home; if the whole of the income derived from the accommodation is utilised for that institution or nursing home or maternity home.â
10. From the aforesaid decisions of the Division Bench and Supreme Court, it is clear that for the accommodation held by a charitable or public religious Trust the provisions of the Act 1961, are not applicable in accordance with the notification issued by the State Government. Both the Courts below have considered the evidence documentary and oral and held that the respondent- Trust is religious and charitable one even if, no notification was issued by a proper Government to the effect that respondent-Trust was a religious Trust, then also looking to the activities of the respondent-Trust in my opinion both the Courts below have rightly held that the respondent-Trust is a religious and charitable Trust hence the respondent is entitled to get exemption in regard to applicability of the provision of the Act 1961. The valid notice was issued to the appellant in regard to termination of the tenancy. It was duly served on the appellant. The appellant herself entered into an contract with the respondent-Trust and accepted the tenancy. In such circumstances, the decree of eviction has rightly been passed by the Courts below. The Secretary of the Trust was authorized by the trustees vide resolution to institute the suit proceedings. He was competent to institute the suit proceedings.
11. In the facts and circumstances of the case, in my opinion, it is not necessary to consider the other arguments advanced by the learned Senior counsel of the appellant. It is suffice to establish the fact in the matter of eviction that if the provisions of the Act 1961 are not applicable and valid notice was served on the tenant in accordance with the provisions of Section 106 of the Transfer of Property Act and her tenancy was terminated inspite that the appellant/defendant did not vacate the premises hence, a decree of eviction has rightly been passed. No substantial question of law involves for determination in this appeal. It is hereby dismissed.
12. Looking to the facts of the case, the appellant/defendant is granted three months time to vacate the suit Shop subject to condition that the appellant shall pay the regular rent and also pay the arrears of rent, if any, and submit an undertaking before the trial Court that the appellant shall vacate the suit shop peacefully within a period of three months from today. No order as to the costs.
(S.K. GANGELE) JUDGE