IMPORTANT POINT
Concurrent finding of facts not found to be perverse is not required to be interfered with while exercising power of regular second appeal.

A.P. Bhangale, J.—The appeal impugns judgment and order dated 5.12.1998 passed in Regular Civil Appeal No. 247 of 1992 by learned Additional District Judge, Amravati which arose from dismissal of Regular Civil Suit No. 758 of 1988 decided by Joint Civil Judge, Junior Division, Amravati on 19.9.1992.

2. The plaintiff Shri Swami Narayan Mandir by Wahiwatdar had instituted Regular Civil Suit No. 758 of 1998 for recovery of possession of open plot of land admeasuring 2603 square feet bearing Plot No. 19, Gandhi Chowk, Amravati city. The defendant occupied the plot as a tenant.

3. By notice dated 1.4.1988, the plaintiff had terminated tenancy of the defendant and asked the defendant to vacate and pay arrears of rent. The defendant did not comply with the notice. Hence, suit was filed.

4. The defendant resisted the suit on the ground that, in absence of permission from the Rent Controller, the plaintiff could not have terminated his tenancy. The defendant also contended that the suit plot was leased in favour of the defendant in 1957 permanently and the defendant made permanent construction by spending Rs.14000/- for it.

5. The trial Court found that the plaintiff is entitled to get vacant possession of the suit plot as also arrears of rent, damages and mesne profits and decreed the suit for possession and part-decreed for amount of Rs.2, 625/- as arrears of rent and damages while ordering inquiry into the mesne profits under Order 20, rule 12 of the Code of Civil Procedure.

6. The defendant preferred Regular Civil Appeal No.247 of 1992 before District Court, Amravati which was dismissed.

7. This second appeal preferred against above concurrent judgments was admitted on 1.8.2000 on the following substantial questions of law :

(i). Whether a suit filed on behalf of the trust is maintainable without proof of trust having permitted to file the suit as required under Section 47 of the Indian Trusts Act?

(ii). Whether the learned Courts below have committed an error of law in holding that the suit property is not a trust property on the face of the admission that the property belongs to the idol?

(iii). Whether the land given for construction of pucca and permanent construction creates an irrevocable license under Section 60 of the Easement Act, hence the notice of termination of the tenancy is not valid ?

8. At the hearing of the appeal, due to change in legal position pursuant to ruling in Deelip v. Mohd Azizul Haq, (2000) 3 SCC 647 the following additional questions of law were framed :

“(i). Whether the learned Courts below have committed an error in holding that the suit was maintainable even in the absence of permission from the rent control authority?

(ii) Whether the learned Courts below are in error in holding that the suit house was not subjected to rent control order?”

9. I have heard submissions at the bar with reference to substantial questions of law agitated as above.

10. Learned Advocate Mr Kaptan submitted that the suit instituted on behalf of Swami Narayan Mandir Trust without permission from the Trust was not maintainable in view of Section 47 of the Indian Trusts Act. Learned Advocate made reference to Section 47 of the said Act, which reads thus :

“Trustee cannot delegate – A trustee cannot delegate his office or any of his duties either to a co-trustee or to a stranger, unless (a) the instrument of trust so provides, or

(b) the delegation is in the regular course of business, or (c) the delegation is necessary, or (d) the beneficiary, being competent to contract, consents to the delegation. Explanation - The appointment of an attorney or proxy to do an act merely ministerial and involving no independent discretion is not a delegation within the meaning of this section.”

11. Learned Advocate contended that Kishorbhai did not prove that he is Trustee or the Manager of the Trust. No Trust Deed was produced to show that the Manager was authorised to terminate the tenancy/lease and then to institute t