The court affirmed the authority of lower courts' findings on landlord-tenant relationships and competency of trusteeship, ruling that mere acceptance of rent does not waive a notice of eviction.

ORDER :

Sanjay Dwivedi, J.

Record of the Courts below has been received.

2. Counsel for the appellant is heard on the question of admission.

3. This appeal under Section 100 of the Code of Civil Procedure has been preferred by the appellant/defendant against the judgment and decree dated 03.08.2024 passed by the Second District Judge, Pipariya, District Narmadapuram in RCA No.09/2022 whereby affirming the judgment and decree dated 29.06.2022 passed in favour of respondent/plaintiff by the Second Civil Judge, Senior Division, Pipariya, District Narmadapuram, the appeal preferred by the appellant has been dismissed.

4. Shri Gulatee, learned senior counsel appearing for the appellant has submitted that the appellant/defendant has disputed the ownership/landlord-ship of the respondent/plaintiff saying that the suit was filed by the plaintiff without any competence as he was not validly appointed trustee and his appointment was made by the Sub Divisional Officer (Revenue), who has no jurisdiction to appoint Mahant Youngeshwar Das as trustee of the respondent/trust and, therefore, the suit ought to be dismissed on the ground that Shri Mahant Youngeshwar Das was not competent to file a suit on behalf of the trust i.e. Dev Ram Janaki Mandir. Shri Gulatee has submitted that though the issue of competency was not framed by the Court below and this has also not been dealt with by the appellate Court but this Court can consider it because it goes to the root of the matter. He has further submitted that it is the duty of the plaintiff to adduce proper evidence so as to show whether he has right to file suit on behalf of the trust and as to how he has been appointed as a trustee (Sarvarakar) but that has not been proved by the plaintiff and, therefore, suit failed and judgment and decree passed by the trial Court deserve to be set aside and further the appeal preferred by the appellant under Section 96 of the Code of Civil Procedure ought to have been allowed.

5. Shri Gulatee has also submitted that a proceeding under Section 26 of M.P. Public Trust Act, 1951 (hereinafter referred to as the ‘Act, 1951’) is pending before the competent authority and as such, it is clear that the suit could not have been filed as the appointment of Sarvarakar in favour of Shri Youngeshwar Das is under cloud. He has further submitted that the appointment of Sarvarakar claimed by the plaintiff namely Shri Mahant Youngeshwar Das was on the basis of ‘Will’ but that was not the proper mode to appoint Sarvarakar and, therefore, the Court should have dismissed the suit on the ground of competency. He has also pointed out that a writ petition, i.e. W.P. No.9695/2013 was filed before this Court in which appointment of Shri Youngeshwar Das as the Sarvarakar was under challenge and the said writ petition was allowed by this Court vide order dated 07.08.2024 and, therefore, he has submitted that it is clear that Shri Youngeshwar Das was not validly and legally appointed trustee of the trust i.e. Dev Ram Janaki Mandir and, therefore, the suit ought to be dismissed.

6. Shri Gulatee has further pointed out that a notice under Section 106 of Transfer of Property Act was given by the plaintiff/respondent terminating the lease (tenancy) of the defendant/appellant but after issuing notice, the rent deposited during the pendency of suit has been withdrawn by the plaintiff and as such, he has waived his right to seek decree of eviction. He has relied upon a decision passed by this Court in case of Murli Shri Deo Radha Madhawlal Jee Geda Trust, Sagar and Others Vs. Pradeep Kumar Nayak reported in (2001) ILR 534 and submitted that the impugned judgment and decrees are liable to be set aside in view of the fact