A trustee-landlord cannot require the house for occupation for his personal use under S. 7(4) of the Orissa Home Rent Control Act, 1967.

Judgement

P. K. MOHANTI, J. :- This writ application is directed against an order of ejectment made under S. 7 of the Orissa Home Rent Control Act, 1967 (hereinafter referred to as the Act ).

2. Opposite party No. 1 claiming himself to be the owner of the house in question filed an application under S. 7 of the Act for ejectment of the petitioner on the ground that he had wilfully defaulted in the payment of rent and further that the house in question was required by opposite party No. 1 for bis own use and occupation to start a hardware shop for his sons.

3. The petitioner filed counter denying the allegations of default in payment of rent and bona fide requirement of the house. It was contended that the house in question belongs to the deity Shri Nilakantheswar Swamy of Berhampur town and the rent of the house was meant to be used for the bhog-rag of the deity and that the opposite party No. 1 had no legal right to maintain the case in his personal capacity.

4. The House Rent Controller allowed the application on the findings that there was relationship of landlord and tenant between the parties; that the petitioner was a wilful defaulter and that the house in question was required by the landlord in good faith for his own use. On appeal, the learned Chief Judicial Magistrate agreed with the Controller that there was relationship of landlord and tenant between the parties and that there was bona fide requirement of the house by the opposite party No. 1 for his own use. But he differed from the finding of the Controller that the petitioner was a wilful defaulter. He maintained the order of ejectment only on the ground of bona fide requirement of the house by the landlord.

5. It is urged on behalf of the petitioner that the deity bring the owner, the courts below have committed an error of law apparent on the face of the record in allowing the petition for ejectment on the ground of requirement at the house for the personal use of opposite party No. 1. It is argued that the house being a trust property, the requirement of the same must be for the purposes of trust and requirement by the opposite party No. 1 for his personal use cannot be made the basic of an order of ejectment.

6. On a perusal of the pleadings of the parties and the evidence adduced in the case it appears that the petition under S. 7 of the Act was filed by the opposite party No. 1 in his personal capacity without disclosing the ownership of the deity. The petitioner in his written statement specifically pleaded that the house belongs to the deity, that the rent of the house was meant to be used for the purpose of the deity and that the opposite party No. 1 has no legal right to maintain the case in his personal capacity.

7. Construing the definition of landlord In S. 2 (4) of the Act and taking into account the fact that the opposite party No. 1 bad been realising rent since the inception of the tenancy, both the courts below concurrently held that the opposite party No. 1 came within the definition of landlord though none of them recorded a specific finding that he was only a trustee-landlord. The appellate authority found that in the Municipal Assessment Registar the deity Shri Nilakantheswar Swamy her been recorded as the owner of the house and that the Municipal tax was being paid by opposite party No. 1 an behalf of the said deity. Opposite party No. 1 in his evidence admitted that the public have free access to the deity and that the entire income of the house in question is spent for the purposes of the deity. In view of this clear admission, it must be held that the house is held by him as a trustee for the benefit of the deity. He has no case that it was a nominal debuttar and that he was the real owner. The oral and documentary evidence. referred to above leaves no room for doubt that the deity is the real owner of the house and the opposite party No. 1 has been collecting rent as a trustee.

8. The opposite party No.1 in his evidence stated that he required