1997 Supreme(MP) 1056

IN THE HIGH COURT OF MADHYA PRADESH
S.C. PANDEY, J.
Boolchand – Appellant
Vs.
Atal Ram Sindhi Dharamshala Trust – Respondent
S.A. No. 883 of 1996 (J)
Decided on : 24-09-1997

Headnote:(1) Accommodation Control Act, 1961 (M.P.) – – S.3 – – charitable trust – whole income utilised for the trust – – trust is exempted from the provisions of the Act.

       (2) Transfer of Property Act, 1882 – – S. 112 and 106 – – acceptance of rent after quit notice – – does not amount waiver of the right of eviction of tenant.

        Short Note

       After hearing the learned counsel for the appellant, the following substantial questions of law were framed by this Court on 13.2.97 : –

       "1. Whether the respondents were bound to plead and prove that their entire income was utilised for the institution before claiming exemption u/S.3 of the M.P. Accommodation Control Act, 1961?

       2. Whether more acceptance of rent after notice of termination u/S.106 of T.P. Act amounts to waiver of notice?"

       and a further substantial question of law was framed on 14.2.97 as follows: –

       3. Whether the finding of the lower appellate Court to the effect that the suit premises were sub – let to one Ramkishan Agrawal and subsequently to Jaishriram Lottery – wala, is correct in the facts and circumstances of the case?"

       After hearing the learned counsel for the parties, this Court, on 14.2.1997 passed an order of remand of the case, after framing a fresh issue, requiring the Court – below to give a finding if the whole of the income of the trust being utilized for the purpose of trust in order to find out if the respondent No. I was covered by notification issued by State Government, exempting the Public Trusts from the operation of M.P. Accommodation Control Act, 1961 as per section 3 thereof because it was contended that there is issue framed by the Court – below on this point. After passing the order of remand, the finding given by the trial Court, to whom the case was remanded, should be routed through the first Appellate Court which was also required to give its finding on the point.

       Held: The trial Court, after recording the evidence of the parties and hearing them, gave a finding that the whole of the income of the respondent No.1 was being utilized for fulfilling the object of the trust. The first Appellate Court too has confirmed that finding.

       Thus, there is concurrent finding of fact against the appellant and the counsel for the appellant was unable to satisfy this Court that the finding of fact recorded by the Courts – below was perverse. Thus, the question No. 1 resolves itself in favour of the respondents and against the appellant. It is hereby held that the respondent No.1 is exempted from operation of the M.P. Accommodation Control Act, 1961 as per Notification No. F – 24 – 4 – 83, XXXII – I, dated 7th September, 1989.

       As to the question No.2, the learned counsel for the appellant faintly argued that acceptance of rent after termination of tenancy amounted to waiver. He was unable to satisfy this Court that mere acceptance of rent after filing the suit amounted to waiver. The acceptance of rent during the pendency of a suit does not by itself amount to waiver. This position is clear from section 112 of the Transfer of Property Act. A right can be waived by any person by giving clear and unequivocal signals to the opposite party that he does not want to pursue the right under which he was claiming. The respondents, having filed 'the suit for eviction and mesne profits, could not be held to have waived the notice to quit merely by accepting the rent. The appellant became trespasser after termination of tenancy. His rights could only be revived, if the act of respondents amounted to total abandonment of the claim for eviction on the basis of notice to quit. No attempt was made in the Courts below by the appellant to show that the respondents, by their conduct, renewed the tenancy at the rate of 100/ – per month. In fact, no such plea was taken by the appellant in the Courts below at any time and, therefore, the learned counsel for the appellant was not in a position to satisfy this Court on the plea of waiver.

       There is no need to answer the question No.3 in view of the finding recorded by this Court on Substantial Questions No. 1 and 2. Nor did the counsel for the appellant assail the finding that the respondents had sub – let the suit shop.