1989 Supreme(Raj) 631

RAJASTHAN HIGH COURT
Milap Chandra Jain, J.
Bhagwanram - Appellant
Versus
Thakurji Shri Hanumanji Maharaj through next friend - Respondent
S.B. Civil Second Appeal No. 109 of 1988.
Decided On : 13-04-1989

A tenant cannot hold adversely to his landlord by mere encroachment, and prayer for possession of trespassed portion is incidental to that of recovery of possession of demised property.

Headnote:

EJECTMENT - TRESPASS - MATERIAL ALTERATION - NUISANCE - STANDARD RENT - VALUATION OF PROPERTY - REGISTRATION OF TRUST - AMENDMENT OF PLEADINGS - COURT FEES - JURISDICTION - PUBLIC TRUST - PRIVATE TRUST - RAJASTHAN PREMISES (CONTROL OF RENT & EVICTION) ACT, 1954 - RAJASTHAN COURT FEES AND SUITS VALUATION ACT, 1961 - RAJASTHAN PUBLIC TRUST ACT, 1959.

Fact of the Case:

Plaintiff-respondent filed a suit for ejectment of the defendant-appellant and for recovery of arrears of rent and mesne profits. The defendant admitted tenancy but claimed standard rent and alleged that the suit was not maintainable as the trust was not registered. The trial court decreed the suit, holding that the shop, front verandah, and back sal were let out to the defendant, he had committed default in payment of rent, trespassed on other portions of the property, and materially altered the demised premises. The defendant appealed, and the appellate court remanded the case for recording evidence on the market value of the property. After remand, the trial court again decreed the suit, and the defendant appealed again.

Finding of the Court:

The court held that the findings of fact of the lower courts that the defendant had trespassed on the adjoining land and roof of the demised shop and sal, constructed a water tank, and demolished a wall to construct a door were concurrent and not challenged. The court also held that the defendant's actions amounted to material alteration of the demised premises and nuisance, and that the suit was not barred by the Rajasthan Public Trust Act as the trust was a private trust and its valuation was less than Rs. 30,000. The court further held that the defendant could not be allowed to change his admission that the trust was private and that the amendment of the written statement to allege that it was a public trust was rightly dismissed.

Issues: 1. Whether the courts below had jurisdiction to pass a decree in favor of the plaintiffs for that portion of the land for which court-fee had not been paid and regarding which, even according to the plaintiff himself as per para 4 of his rejoinder, there was no claim in this suit? 2. Does opening of a door or window in the wall between sal and room in this case amount to material alteration for which the tenant can be evicted? 3. Is the valuation of property mentioned in para 3(b) more than Rs. 5,000/- and the Court of Munsif had no jurisdiction to hear the suit? 4. Had the lower Courts jurisdiction to decide the nature of the Trust (public or private) in view of Section 73, Rajasthan Public Trusts Act, and specially so when the competent Authority under the said Act has held it to be Public Trust and has given notice to Sri Sampatraj Kumbat on 17.12.1987 to show cause why he should not be punished under Section 70 of RPT Act, 1959? 5. Is the value of Trust property more than Rs. 30,000/- and hence its registration was compulsory and for want of registration this suit is barred by Section 29 of RPT Act and other provisions thereof? 6. Had the Courts below erred seriously in law in rejecting the applications of the defendant under Order 6, Rule 17 and Section 151, CPC and Section 29 RPT Act? 7. Even if the defendant had not expressly said in his written statement that it was a Public Trust could the Court assume jurisdiction to decide this question when its jurisdiction is barred by Section 73 read with Sections 17, 18 etc. and specially so when the notice from the Devasthan Commissioner to Shri Sampatraj was brought on record. 8. Have the Courts below erred in law in treating it as a Public Trust without considering the patta granted to Thakurji Shri Balaji (Hanumanji) granted in Dharmada by the former Jodhpur Government and without considering the definition of "Public Trust" which includes temple and dharmada? 9. Have the Courts below erred in law in rejecting the unrebutted evidence of Shyam Singh without applying their mind to it, when his evidence is based on a published Book of Basic Schedule Rules of P.W.D.?

Ratio Decidendi: 1. A tenant cannot hold adversely to his landlord by mere encroachment. Prayer for possession of trespassed portion is incidental to that of recovery of possession of demised property. 2. Material alteration contemplates change of substantial nature effecting the form and character of the building. 3. Encroachment or illegal possession by the defendant over the said portions of the trust property amounts to nuisance. 4. The valuation of the property for the purpose of court fees is the same as the valuation for the purpose of computing the fee payable under the Rajasthan Court Fees and Suits Valuation Act, 1961. 5. A private trust does not require registration under the Rajasthan Public Trust Act, 1959. 6. The court cannot allow a party to change completely the case made in the written statement and substitute an entirely different and new case.

Final Decision: The second appeal was dismissed with costs, and the defendant was given two months' time to vacate the entire premises and deliver possession to the plaintiff.