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HIGH COURT OF MADHYA PRADESH
R.K. TANKHA, J.
Idol Shriji
Versus
Gappulal & another
S.A. No. 248 of 1974
Decided On: 18.9.1976
The entry in the Bahi was disbelieved on the ground that there was over writing. But there was no cross-examination of the plaintiff on this point.
Held: The statement of the plaintiff cannot be disbelieved on the ground that there was over-writing in the Bahi.
(Para 5)
(2) Civil P.C., 1908 – S. 100 – material evidence ignored by the first appellate court–interference in second appeal.
The High Court has jurisdiction to interfere with a finding of fact in second appeal when if finds that the lower appellate Court failed to consider material piece of evidence on record.
(Para 5)
(3) Transfer of Property Act, 1882 – S. 106 – one of the trustees of a trust property giving quit notice–tenancy validly terminated.
A notice to terminate a tenancy need not be given by all the trustees or to say in other words it is not necessary that all the trustees must join in issuing the notice of termination of a tenancy. Even in a case where there are more than one trustees who are managing the trust property and these trustees are the landlords of a particular tenant and if anyone of them is not willing to continue the tenancy and terminates it the termination cannot be held to be illegal since others did not join him in that. AIR 1961 Mysore 71 relied on. (Para 6)
(4) Accommodation Control Act, 1961 (MP) – S.2 (b)–trust property–tenant executing rent note in favour of idol through the managing trustee–also tendered rent to him –managing trustee would be deemed to be landlord.
(Para 7)
(5) Public Trust – Idol – contract on behalf of–entered into only by managing trustee –contract for the benefit of the idol – contract not invalid.
(Para 8)
(6) Accommodation Control Act, 1961 (MP) – S.5 – applicability of–standard rent not fixed–contractual rent payable.
It is well settled that if the standard rent is fixed, then only section 5 shall apply with full force and if neither the standard rent exists nor it has been determined, the tenant is bound to pay the contractual rent.
(Para 8)
(7) Public Trusts Act, 1951 (MP) – S.32 (1)–bar under – applicability of–duty of the Court.
The bar provided by section 32 (1) of the M.P. Public Trusts Act is not against filing of suits to enforce rights on behalf of public trusts but the bar is against the hearing or deciding such suits Therefore, all that the Court should do is to stay the suit till the public trust concerned is not registered under the said Act. 1962 JLJ 969 – Relied on.
(Para 9)
(8) Civil P.C., 1908 – O. 1, R. 10 – suit on behalf of idol – one of the trustees joined later on as a party – case is not of addition of a party–Limitation Act, 1963–S. 21.
Where the suit was brought on behalf of the idol and only one of the trustees filed the suit and the other trustee was joined later on, it was a proper presentation of the idol and not a case of addition of a new plaintiff.
When an idol is substantially on the record of a suit from the beginning, the rectification of the original improper representation by a proper representation cures all the original technical defects with effect from the date of institution of the suit. The rectification cannot be treated as the addition of a new party so as to attract the penal provisions of section 21 of the Limitation Act.
(Para 9)
R.K. TANKHA, J.
1. This appeal under section 100 of the Code of Civil Procedure is by the appellant-plaintiff against the judgment and decree dated 28.2.1974 passed by the First Additional Judge to the Court of First Additional District Judge, Bhopal, in Regular Civil Appeal No. 9-A of 1973.
2. Brief facts of the case are that Idol Shriji Lakherapura temple located at Bhopal is a public trust which was initially not registered but the registration was effected in the year 1969 during the pendency of the present suit. The names of the trustees mentioned in column 3 of the registration copy on record are (i) Goswami Ratnaprabha (ii) Shri Babulal Sharma as Mukhia and working trustee. Before the trust was registered Babulal Sharma alone as the sole trustee determined the tenancy of the respondent No.1–defendant in relation to the suit accommodation by service of a quit notice (Ex. P-3) dated 22.2.1961 under section 106 of the Transfer of Property Act. Since respondent No. 1–defendant neither vacated the suit accommodation nor paid the demanded arrears of rent, the present suit was filed in the name of Idol Shriji through Babulal Sharma on 19.4.1961 for the ejectment of the respondent No.1–defendant from the suit accommodation and also for the realisation of arrears of rent. But in view of the provisions of section 32 (1) of the M.P. Public Trusts Act, 1951, the public trust being unregistered, the civil court could not proceed with the suit. Therefore, the trial Court stayed the suit till the public trust was got registered under the M.P. Public Trusts Act, 1951. The registration was effected on 14.11.1969 and the other trustee Smt. Ratanprabha was first joined as defendant No.2, but later vide trial Court's order dated 28.1.1972 she was transposed as plaintiff No.2, who is now respondent No.2. The suit was contested by respondent No.1–defendant on various counts by denying all the allegations.
3. The trial Court decreed the suit of the plaintiffs. But in appeal, the lower appellate Court set aside the judgment and decree of the trial Court held that the plaintiffs were entitled to recover the rent only at the rate of Rs. 7.50 per month with suitable directions to the respondent No.1–defendant in that regard for the payment of rent for 37 months if not already deposited in Court This second appeal has been filed by Idol Shriji (appellant plaintiff No.1) alone while plaintiff No.2 has been joined as respondent No.2. Respondent No.1–defendant has filed his cross-objection under Order 41, Rule 22 of the Code of Civil Procedure raising the point of limitation by urging that the claim of rent decreed for the last three years would be barred by time and could not have been decreed.
4. Having heard learned counsel of the parties, I am of opinion that this appeal has merit and it must be allowed.
5. The first contention of the learned counsel for the appellant-plaintiff No.1 was that the lower appellate Court wrongly held that the notice dated 22.2.1961 (Ex. P-3) served under section 106 of the Transfer of Property Act determining the tenancy of the respondent No.1–defendant was invalid. The lower appellate Court has held the said notice to be invalid on two grounds namely, that it did not comply with the requirements of section 106 of the Transfer of Property Act inasmuch as the landlord failed to prove the commencement of the tenancy to decide that the demand to vacate the suit premises in the said notice related to the end of the tenancy month and also Babulal alone could not determine the tenancy, there being one more trustee (Plaintiff No.2) whose approval was not secured. With regard to the first ground, the lower appellate Court has detailed out reasons in paras 5 to 8 of its judgment for purposes of arriving at its conclusion in that respect. But in my opinion, the said Court misdirected itself for purposes of arriving at its conclusion by failing to consider material aspect of the case as is borne out from the pleadings of
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