Shri Gopilal Son Of Kanhaiyalal ... vs Shri Manilal Son Of Gopalrao ...
2005 Latest Caselaw 327 Bom

JUDGMENT

K.J. Rohee, J.

Page 1559

1. The original defendant has preferred this second, appeal against the judgment of the District Judge, Nagpur, in Regular Civil Appeal No. 411/1.983 dismissing appeal against the judgment and decree in Regular Civil Suit No. 1285/1974 (Initially registered as Civil Suit No. 1657/1971) passed by 12th Joint Civil Judge, Junior Division, Nagpur directing the defendant to deliver vacant possession of the suit block to the respondent/original plaintiff (who is now represented by his L.Rs.) along with arrears of rent and costs and inquiry into future mesne profits.

2. The brief facts relevant for the purposes of the present appeal are as under:

The only admitted fact is that the appellant occupied a block in house No. 58 as a tenant on 12.8.1965. According to the respondent the monthly rent is Rs. 30/- whereas according to the appellant the monthly rent is Rs. 15/-. According to the respondent, the suit block is owned by him whereas according to the appellant the suit block belongs to a public trust known as Shri Siddheshwar Ganesh Mandir.

3. As the appellant failed to pay rent, the respondent instituted Civil Suit No. 1737/1968 for recovery of arrears of rent before Small Causes Court, Nagpur. By order dated 8.7.1969, the plaint was directed to be returned to the respondent. The respondent challenged the order by preferring a Revision No. 425/1969 before the High Court which was pending.

4. In the meantime, the respondent approached the Rent Controller for permission vide Revenue Case No. 525/71-A(2)70-71 to issue quit notice under Clause 13(3)(3)(i)(ii) of the C.P. and Berar Letting of Houses and Rent Control Order, 1949. The appellant raised preliminary issue about the title of the respondent By interim order dated 10.2.1970, the Rent Controller held that there exists relationship of landlord, and tenant between the respondent and the appellant. Thereafter by order dated 27.02.1971, the Rent Controller granted permission to the respondent to issue quit notice to the appellant, Accordingly on 16.5.1971, the respondent issued notice to the appellant terminating his tenancy with effect from 16.7.1971. The appellant refused to accept the said notice. Thereafter on 6.8.1971 the respondent instituted Civil Suit No. 1657/1971 (which was subsequently renumbered as R.C.S. No. 1285/1974) for ejectment, arrears of rent and damages against the appellant.

5. The appellant raised preliminary objection to the tenability of the said suit in view of the pendency of the earlier suit No. 1737/1968 and prayed for staying the subsequent suit. He also submitted that in Inquiry CASE No. 363/1970 the Deputy Charity Commissioner, Nagpur Region, Nagpur, directed that trust be registered as a public trust in the name of Shri Siddheshwar Ganesh Mandir and deities, Gadhkhana, Mahal Nagpur. The Deputy Charity Commissioner also held that house No. 58 was the trust property. The appellant, therefore, contended, that the respondent is not entitled to institute the suit as owner and landlord of house No. 58 and that the suit was liable to be dismissed.

Page 1560

6. After considering the oral and documentary evidence adduced by the parties, the learned trial Judge held that the respondent is the landlord; that the tenancy of the appellant was legally terminated; that the respondent was entitled to recover possession of the suit block along with arrears of rent. He, therefore, decreed the suit in favour of the respondent. The appellant challenged the said judgment and decree by preferring an appeal which came to be dismissed, Hence this appeal.

7. Mr. D.C. Daga, the learned Counsel for the appellant, urged only one substantial question of law to the effect that the suit instituted by the respondent is not tenable as the respondent is not the owner of the suit block. Mr. Daga strenuously urged that the respondent is not the owner of the suit block situated in house No. 58. Mr. Daga pointed out that in Inquiry No. 363/1970 decided by Deputy Charity Commissioner, Nagpur Region, Nagpur on 24.2.1971, it has been specifically held that Municipal House No. 53 is the property of a public trust viz. Shri Siddheshwar Ganesh Mandir and Deities, Gadikhana, Mahal Nagpur. Mr. Daga pointed out that the Deputy Charity Commissioner further held that the original respondent is the sole trustee of the said trust and the mode of succession is hereditary in the respondent's family. Mr. Daga submitted that the respondent has challenged the order of the Deputy Charity Commissioner in Appeal No. 35/1971 which came to be dismissed by Joint Charity Commissioner, M.S. Bombay by order dated 18.5.1974. Mr. Daga, therefore, urged that the respondent has no right to terminate the tenancy of the appellant and to institute suit for ejectment and arrears of rent. Both the Courts below have ignored this aspect by holding that the respondent is the landlord; that the respondent legally terminated the tenancy of the appellant and directed ejectment of the appellant. Mr. Daga urged that The judgments of both the Courts below cannot be sustained in the eye of law and are liable to be set aside. In support of his submission, Mr. Daga relied on a decision of the Division Bench of this Court in Writ Petition No. 2166/1991 Ramnarayan Manilal Sahu v. State of Maharashtra decided on 17.9.2004.

8. Mr. V.K. Paliwal, the learned Counsel for the respondent, on the other hand submitted that the Rent Controller has held that the respondent is the landlord. The said finding is not set aside by any higher authority. Thus the said finding has become final and the appellant cannot take shelter to the decision of the Deputy Charity Commissioner, Nagpur Region, Nagpur that Shri Siddheshwar Ganesh Mandir trust is the owner of Municipal House No. 58. Mr. Paliwal submitted that the Rent Controller has every jurisdiction to decide the question of title when the tenant disputed the title of the landlord. In this respect Mr. Paliwal relied on 1977 Mh.L.J. Notes of Cases (81) Vishudha v. Shankar Vidyalaya. Mr. Paliwal further submitted that owner and landlord are different terms and landlord need not be owner. In this respect, he invited my attention to the definition of landlord as given in Sub-clause (4) of Section 2 of the Central Provinces and Berar Letting of Premises and Rent Control Order, 1949 which read as under:

"landlord" includes the person who is receiving or is entitled to receive the rent of a house whether on his own account or on behalf of himself Page 1561 and other or as an agent or trusted, or who would so receive the rent or be entitled to receive the rent if the house were let to a tenant"

9. Mr. Paliwal further submitted that under Clause 13 of the said Order a landlord, is entitled to determine the lease of the tenant with previous written permission of the Rent Controller and to obtain possession of the premises. Mr. Paliwal submitted that in the affidavit (Exh.33) sworn in by the appellant on 17.6.1968 and filed in earlier proceedings before the Rent Controller the appellant clearly stated that he is the tenant of the respondent. Mr. Paliwal submitted that the appellant is thus estopped from denying the title of the respondent. Both the Courts below have rightly held so and dismissed the suit. Mr. Paliwal, therefore, submitted that the Judgments of the lower Courts are perfectly legal and call for no interference.

10. I find considerable force in the submission made on behalf of the respondent. It may be seen that it is an admitted fact that the appellant occupied the suit block on 12.8.1965. It may be noted that the Deputy Charity Commissioner in Inquiry Case No. 363/1970 has held that the public trust viz. Shri Siddheshwar Ganesh Mandir existed from 20.11.1968 and the respondent is the sole trustee thereof. It is thus obvious that prior to 20.11.1988 there was no public trust. The appellant was inducted as a tenant when the public trust was not in existence. As such it was the respondent who is the landlord of the appellant. The respondent terminated the tenancy of the appellant after obtaining previous permission from the Rent Controller. The quit notice is thus perfectly legal and valid and the appellant is liable to vacate the suit block. The appellant cannot take advantage of the order of the Deputy Charity Commissioner, Nagpur Region, Nagpur by denying the title of the respondent and contending that the public trust is the owner of the suit block. As pointed out earlier, the respondent was the owner of the suit block and the appellant admitted that the respondent was his landlord. Thus he is estopped from denying the relationship between him and the respondent. There is no merit in the appeal and the same deserves to be dismissed. Hence the order.

The appeal is dismissed with costs.