Rajendra Pal Singh Yadav vs Scindia Devsthan Trust ...
2021 Latest Caselaw 1720 MP

                  HIGH COURT OF MADHYA PRADESH
                        BENCH AT GWALIOR

                                    (Single Bench)

                     SECOND APPEAL NO. 246 OF 2016

Rajendra Pal Singh Yadav                                     ..... APPELLANT
                                         Versus

Scindia Devsthan Trust & others                              .....RESPONDENTS

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CORAM

                Hon. Shri Justice Rajeev Kumar Shrivastava

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Appearance

       Shri K.S. Tomar, learned Senior Counsel with Shri Sanjay Singh
Tomar, learned counsel for the appellant.
       Shri Ankur Mody, learned counsel for the respondents.

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Whether approved for Reporting :                     No

Reserved on            :      17/03/2021
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                                  JUDGMENT

(Passed on 3rd May, 2021)

This Second Appeal has been preferred under Section 100 of Civil

Procedure Code, 1908 by the appellant against the judgment and decree

dated 11.02.2016 passed in Regular Civil Appeal No.05A/2016 by IV

Additional District Judge, Gwalior, District Gwalior, whereby judgment &

decree dated 28/02/2013 passed in Civil Suit No.33A/2011 by IX Civil

Judge Class-II, Gwalior, has been partially affirmed.

(Rajendra Pal Singh Yadav Vs. Scindia Devsthan Trust & others)

2. For the sake of convenience, hereinafter appellant will be referred as

defendant and respondents No. 1 to 6 will be referred as plaintiffs.

3. The admitted fact of the case is that on the date of filing of suit, the

defendant was the tenant as per deed dated 01/08/1976 at the rent of

Rs.450/- in old Nagar Palika building No.320 Ward No.21, new ward

No.47 building No.261, which is reflected in the plaint map by

demarcating through red lines.

4. Brief facts of the case are that the plaintiffs filed a suit for ejectment

against the defendant by pleading that Scindia Devsthan Trust is a religious

registered trust vide registered deed dated 14/05/1952 bearing registration

No. A/931 Puna (Bombay) dated 05/02/1958 and its head office is at 27,

Safdarjang Road, New Delhi and for the administrative purpose, local

office is at Jai Vilas Palace Parisar, Lashkar, Gwalior. The plaintiffs No.2

to 6 are the trustees and after the death of its the-then Chairperson, plaintiff

No.2 is Chairman of the Trust and Rana Karan Singh is the Secretary as

per resolution of the trust dated 24/12/2007, who has been authorized to

conduct the proceedings of the Court etc. Defendants No.2 & 3 are

proforma parties. The trust being a title holder of the property namely,

Chhatri Daulatrao Maharaj Parisar, Chhatri Mandi, Chhatri Bazar, Lashkar,

Gwalior, of which municipal house No.261 is disputed part of the property.

5. The defendant is tenant by virtue of rent deed dated 01/08/1976 at

the rate of Rs.450/- per month. The tenanted premises is shown in plaint

map marked by letter "B" which is shown by red lines. The defendant is

defaulter of rent since year 2010 and has also included the open land

(Rajendra Pal Singh Yadav Vs. Scindia Devsthan Trust & others)

beyond the authorized tenancy building. The trust wanted to discontinue

the tenancy of the defendant, therefore served a registered notice to quit for

vacating the suit premises and for payment of arrears of rent. The trust

being registered under Public Trust Act, therefore, the provisions of M.P.

Accommodation Control Act have no application in the matter. The

defendant raised the objection that the Secretary was not duly authorized to

file a suit and besides that, the Trust was not registered under the

provisions of M.P. Public Trust Act, therefore, the suit filed was not

maintainable. In notice to quit dated 20/02/2010, there was no mention as

to authorization of Shri Rana to file the suit. The allegations made in the

plaint are false and baseless. The defendant is not the defaulter of the

payment of rent as the trust was not registered under the provisions of M.P.

Public Trust Act, therefore, the benefit of Section 32 of M.P.

Accommodation Control Act is not permissible.

6. The grounds pleaded are that the appellate Court has wrongly held

that the suit is maintainable, despite of the fact that the plaintiff No.1 is not

a registered trust under the provisions of M.P. Public Trust Act. Merely a

registration of the Trust under the provisions of Maharashtra Public Trust

Act cannot be treated as registered trust for all the purposes in regard of the

property situated in Madhya Pradesh. The notification dated 07/09/1989

was published in exercise of powers conferred by sub-section (2) of

Section 3 of M.P. Accommodation Control Act, by which the exemption

was granted in regard of all accommodation owned and controlled under

the Wakf Act and public trust registered under the M.P. Public Trust Act.

The expression as employed in the notification "Public Trust registered

(Rajendra Pal Singh Yadav Vs. Scindia Devsthan Trust & others)

under the M.P. Public Trust Act, 1951", make it clear that the registered

trust plaintiff No.1 being not registered under the provisions of M.P. Public

Trust Act, therefore plaintiff No.1 has no avail of M.P. Accommodation

Control Act. The judgment & decree passed by the Appellate Court suffers

legal infirmity. The trial Court while dealing the matter construed the

notification along with expression registered under the M.P. Public Trust

Act, 1951, has rightly held that suit is not maintainable. The sole issue

involved in the matter which ought to have been decided in the context of

trust registered under the provisions of M.P. Public Trust Act, not

otherwise. When the language is clear and intention behind the notification

is clear, the consideration of expression above the provisions is not

permissible. The Appellate Court has wrongly held that notice to quit the

premises as served upon the defendant is sufficient for termination of

tenancy and after service of notice, the defendant becomes trespasser over

the disputed property. The notice to quit the premises (Ex-P/4) is not in

accordance with the provisions of Section 106 read with Section 111 of

Transfer of Property Act and the notice infact depicts and demonstrate that

the same was given treating the operation of provisions of M.P.

Accommodation Control Act. The trial Court has rightly rejected the suit

filed by the plaintiffs considering the provisions made under relevant Acts.

The appellate Court has wrongly interpreted Sections 106 & 111 of

Transfer of Property Act and decree passed on the basis of above is against

law. Hence, this second appeal by the appellant/ defendant.

7. Learned counsel for the appellant-defendant has submitted that the

trust was registered under Maharashtra Public Trust Act and the property is

(Rajendra Pal Singh Yadav Vs. Scindia Devsthan Trust & others)

situated at Gwalior (M.P.), therefore no benefit could be awarded as

provisioned under M.P. Public Trust Act. The notification issued in the year

1989 was withdrawn, therefore the benefit could not be availed by the

plaintiffs on the basis of aforesaid notification. It is further submitted that

as the trust is not registered under M.P. Public Trust Act, no benefit could

be awarded to the plaintiffs under Accommodation Control Act. Hence,

prays for quashing the judgment & decree passed by the first Appellate

Court.

8. Learned counsel for the respondents- plaintiffs has opposed the

submissions made on behalf of the appellant- defendant and has submitted

that the first appellate Court has rightly considered and passed the

impugned judgment & decree. It is further submitted that it is true that the

trust, which is a religious trust, has been registered under Maharashtra

Public Trust Act. Earlier one notification was issued in the year 1989

which was withdrawn. Thereafter, again one notification has been issued in

the year 2019 and the plaintiff is entitled to get the benefits as awarded

under the notification of 2019. It is further submitted that under Section 3

of M.P. Accommodation Control Act along with Section 20 of M.P.

Accommodation Control Act, the plaintiff-respondent is also protected,

therefore, the notice under Sections 106 & 111 Part (h) of Transfer of

Property Act is a valid notice. Learned counsel for the respondents has also

submitted that in exercise of powers under Section 36 of M.P. Public Trust

Act, State of M.P. exempted Scindia Devasthan Trust from all the

provisions of M.P. Public Trust Act on 04/07/1968. It is further submitted

that the aforesaid order was revoked vide notification dated 18/03/1971.

(Rajendra Pal Singh Yadav Vs. Scindia Devsthan Trust & others)

Thereafter, one Miscellaneous Petition No. 35/1972 was filed by Scindia

Devasthan Trust assailing the validity of notification dated 18/03/1971,

which was dismissed by the Division Bench of this Court. Again vide

notification dated 07/09/1989, State of M.P. in exercise of powers

conferred under Section 3(2) of M.P. Accommodation Control Act,

exempted all the public trusts registered under M.P. Public Trust Act for

educational, religious and charitable purposes.

9. Learned counsel for the respondents- plaintiffs relied upon the

decision rendered in the case of Shri Bhagwatacharya Narayan

Dharmarth Trust, Balaji Mandir and others Vs. Jaiprakash [2011(I)

MPACJ 156], wherein it was held that "even a trust registered outside the

State of Madhya Pradesh having property in the Madhya Pradesh is

entitled for the benefit of exemption under the notification dated

07/09/1989". It is also submitted that apart from above, on 12/07/2019,

State of M.P., in exercise of powers vested under Section 3(2) of M.P.

Accommodation Control Act, has notified that in continuation to the

previous notification dated 07/09/1989, the public charitable trusts having

property in the State of M.P. despite registered outside of M.P., are also

exempted from the provisions of M.P. Accommodation Control Act. It

further specifies that the notification is also applicable on the pending

cases, therefore the first Appellate Court has rightly considered the case of

plaintiffs-respondents. Hence, under aforesaid facts and circumstances of

the case, learned counsel for the respondents prays for dismissal of this

second appeal at the stage of admission.

(Rajendra Pal Singh Yadav Vs. Scindia Devsthan Trust & others)

10. Heard learned counsel for the rival parties and perused the available

record.

11. Section 100 CPC reads as under:-

"100.Second Appeal. - (1) Save as otherwise expressly provided in the body of this Code or by any other law for the time being in force, an appeal shall lie to the High Court from every decree passed in appeal by any Court subordinate to the High Court, if the High Court is satisfied that the case involves a substantial question of law.

(2) An appeal may lie under this section from an appellate decree passed ex-parte.

(3) In an appeal under this section, the memorandum of appeal shall precisely state the substantial question of law involved in the appeal.

(4) Where the High Court is satisfied that a substantial question of law is involved in any case, it shall formulate that question.

(5) The appeal shall be heard on the question so formulated and the respondent shall, at the hearing of the appeal, be allowed to argue that the case does not involve such question:

Provided that nothing in this sub-section shall be deemed to take away or abridge the power of the Court to hear, for reasons to be recorded, the appeal on any other substantial question of law, not formulated by it, if it is satisfied that the case involves such question."

12. In second appeal under Section 100 of CPC, the scope of exercise of

the jurisdiction by the High Court is limited to the substantial question of

law. Substantial question of law must be debatable, not previously settled

by law of the land or a binding precedent and answer to the same will have

a material bearing as to the rights of parties before the Court. Existence of

(Rajendra Pal Singh Yadav Vs. Scindia Devsthan Trust & others)

a substantial question of law is sine-qua non for the exercise of jurisdiction

under the provisions of Section 100 of CPC. The second appeal does not

lie on the ground of erroneous findings of facts based on appreciation of

the relevant evidence.

13. It is admitted fact that defendant No.1- Rajendra Pal Singh Yadav is

the tenant as per rent deed dated 01/08/1976 at rent of Rs.450/- per month.

14. The trial Court has dismissed the suit and the first Appellate Court

has decreed the appeal partially in favour of the plaintiffs considering the

fact that defendant No.1 is the tenant as mentioned above and one notice

(Ex-P/4) was sent to him, thereby tenancy was terminated from midnight

of 31/03/2010 and it was also directed to vacate the suit premises. It is also

observed by first Appellate Court that as per condition No.11 of rent deed,

the plaintiffs were having right to terminate the tenancy by giving fifteen

days notice. The aforesaid notice was given under Sections 106 & 111 part

(h) of Transfer of Property Act. The tenancy was terminated from the

midnight of 31/03/2010.

15. Rana Karan Singh (PW-1) has stated that on the last occasion, the

defendant paid rent till 31/01/2010, receipt whereof is exhibit-P/3 and from

01/02/2010 onwards, the defendant is defaulter, therefore notice (Ex-P/4)

was sent to the defendant but he did not comply with the same. The

aforesaid notice was issued on 20/02/2010 and as per rent deed (exhibit-

P/1), there is one condition that the tenant would pay rent before the 10 th of

every coming month. The aforesaid fact has not been rebutted, therefore,

the first Appellate Court has rightly decided that despite notice under

(Rajendra Pal Singh Yadav Vs. Scindia Devsthan Trust & others)

Sections 106 & 111 part (h) of Transfer of Property Act, the tenancy was

terminated from midnight of 31/03/2010.

16. The first Appellate Court has also observed that the authority to file

suit by the Secretary - Rana Karan Singh, was not challenged and cited the

judgment passed in M.A. No. 762/2012 (Scindia Devsthan Registered

Charitable Trust thr. Secretary Vs. Praveen Kumar Nigam & others)

and in M.A. No. 884/2012 (Scindia Devsthan Registered Charitable

Trust Vs. Smt. Vijaya Jagtap & others), wherein the Division Bench of

this Court on 05/07/2013 has observed that "whenever any trust is

registered for charitable purposes, then it is not required to be proved that

the earning against the property has been used for religious and charitable

purposes" and also observed that the judgment passed in the case of

Registrar, Vidhichand Dharmshala Vs. Shyam Singh [2010 (III) MPJR

142] is not a correct law. It was also observed in the aforesaid judgment

that the fact of use of earnings for religious and charitable purposes is one

of the requirement which is to be considered by the State while registering

the trust under the aforesaid Act and once it is registered, there is no need

of any enquiry by the civil Court.

17. In Betibai & others Vs. Nathooram & others [AIR 1999 SC

1767], it has been observed that:-

"7. The decision of this Court in Mangilal's case (1998 AIR SCW 3938) (supra), upon which reliance has been placed is distinguishable as the only question pleaded in that case was that since the Notification dated 7th September, 1989 has been held to be bad by the High Court in respect of Wakf properties only, the trust properties would continue to

(Rajendra Pal Singh Yadav Vs. Scindia Devsthan Trust & others)

be exempted from the operation of the Act. This plea was not accepted and it was held that the Notification dated 7th September, 1989 was a composite Notification which applied not only to the Wakf properties but also to other charitable trust properties, and since this Notification has been held to be bad in respect of the Wakf properties, it would be bad for all other properties, including trust properties, which were sought to be exempted from the operation of the Act. The validity of the Notification was not questioned in that decision. Moreover, it was not brought to the notice of Their Lordships, who decided that case, that against the decision of the Madhya Pradesh High Court in Chintamani's case (supra), Civil Appeal No. 9909 of 1995 (arising from S.L.P. (Civil) No.4360 of 1994) was filed in this Court, which was decided on October 19, 1995 and the decision of the Madhya Pradesh High Court was reversed with a categorical finding that the Notification issued by the Madhya Pradesh Govt. exempting the Wakf and Trusts properties from the operation of the Act was valid."

18. In Payal Vision Limited Vs. Radhika Choudhary [(2012) 11 SCC

405], it is held:-

"12. Incidentally, the defendant appears to have raised in the written statement a plea regarding the nature and extent of the super structure also. While the plaintiffs case is that the super structure as it existed on the date of the lease deed had been let out to the defendant and the defendant had made structural changes without any authorisation, the defendants case is that the super structure was constructed by her at her own cost pursuant to some oral agreement between the parties. It is unnecessary for us to delve deep into that aspect of the dispute, for the nature and extent of superstructure or the legality of the changes allegedly made by the defendant is not relevant to the determination of the question whether the existence of tenancy is admitted by the defendant. At any rate, nature and extent of structure whether modified or even re- constructed by the defendant is a matter that can not alter the nature of the possession which the defendant holds in terms of the agreement executed by her. The relationship of

(Rajendra Pal Singh Yadav Vs. Scindia Devsthan Trust & others)

the landlord and the tenant remains unaffected even if the tenant has with or without the consent of the landlord made structural changes in the property. Indeed if the tenancy was protected by the rent law and making of structural changes was a ground for eviction recognised by such law, it may have been necessary to examine whether the structure was altered and if so with or without the consent of the parties. That is not the position in the present case. The tenancy in question is not protected under the Rent Control Act having regard to the fact that the rate of rent is more than Rs 3500 per month. It is, therefore, of little significance whether any structural change was made by the defendant and if so whether the same was authorised or otherwise. The essence of the matter is that the relationship of the landlord and the tenant is clearly admitted. That is the most significant aspect to be examined by the Court in a suit for possession especially when the plaintiff seeks a decree on the basis of admissions."

19. In Jeewan Dass Vs. Life Insurance Corporation of India &

another [1994 Supp (3) SCC 694], it is held:-

"4. Section 106 of the T.P. Act does indicate that the landlord is entitled to terminate the tenancy by giving 15 days' notice, if it is a premises occupied on monthly tenancy and by giving 6 months' notice and if the premises are occupied for agricultural or manufacturing purposes; and on expiry thereof proceedings could be initiated. Section 106 of the T.P. Act does not contemplate of giving any reason for terminating the tenancy. Equally the definition of the public premises "unauthorised occupation" under Section 2(g) of the Act postulates that the tenancy "has been determined for any reason whatsoever". When the statute has advisedly give wide powers to the public-authorities under the Act to determine the tenancy, it is not permissible to cut down the width of the powers by reading into it the reasonable and justifiable grounds for initiating action for terminating the tenancy under Section 106 of the T.P. Act. If it is so read Section 106 of T.P. Act and Section 2(g) of the Act would become ultra vires.

(Rajendra Pal Singh Yadav Vs. Scindia Devsthan Trust & others)

The statute advisedly empowered the authority to act in the public interest and determine the tenancy or leave or licence before taking action under Section 5 of the Act. If the contention of the appellant is given acceptance he would be put on a higher pedestal than a statutory tenant under the Rent Act."

20. In State of U.P. through Collector Vs. Smt. Ram Rani Jaiswal

[Civil Revision No.296/2008 order dated 27/01/2009], it has been

observed:-

"This Court in the case of Vinod Kumar Rastogi vs. III Additional District Judge, 2003 (2) ARC 377 has taken the view that even if the provisions of U.P. Act No. XIII of 1972 does not apply, the provisions of Section 114 of the Transfer of Property Act will not become applicable automatically unless lease is determined for non-payment of rent. Thus, inevitable conclusion is that where the provisions of U.P. Act No. XIII of 1972 are not applicable, after giving notice of 30 days, under Section 106 of Transfer of Property Act landlord has got unfettered right to terminate the tenancy without assigning any reason, whatsoever, and at the time of terminating tenancy other additional grounds can be taken for filing suit. For getting the benefit of Section 114 of the Transfer of Property Act, tenant will have to show that landlord has exercised his right of forfeiture under Section 111 (g). The provisions of Section 114 are not at all applicable when lease is determined by serving notice to quit under Section 106 of Transfer of Property Act."

21. In Shri Bhagwatacharya Narayan Dharmarth Trust, Balaji

Mandir and others Vs. Jaiprakash [2011(I) MPACJ 156], it has been

held:-

(Rajendra Pal Singh Yadav Vs. Scindia Devsthan Trust & others)

"(9.) From perusal of the judgment it is evident that the learned Courts below dismissed the suit filed by the appellant Trust holding that the appellant trust has failed to make out a case for eviction under Section 12 of M.P. Accommodation Control Act as the appellant has failed to prove the bonafide requirement. Section 3(2) of the M.P.

Accommodation Control Act empowers the Government to exempt from all or any of the provisions of this Act which is owned by educational, relegious or charitable institution. Even if an institution who is not covered under Section 3(2) of M.P. Accommodation Control Act files a suit for eviction, then too, the said institution is not governed by Section 12 of M.P. Accommodation Control Act. but is governed by Section 20 of M.P.

Accommodation Control Act, which lays down a special provision for recovery of possession where the landlord is any company or other body body corporate or any local authority or any public institution. Since appellant Trust is public institution, therefore. Section 12 of MP Accommodation Control Act is not applicable in the present case. Even if it is assumed for the sake of argument that appellant Trust is not entitled for the benefit of exemption as appellant Trust is registered at Bombay, then too, it is only Section 20 of M.P. Accommodation Control Act which is applicable. Since the appellant is a registered charitable Trust, therefore, in view of the notification dated 07/09/ 89 it was not necessary for the appellant to make out a case either under Section 12 or 20 of M.P. Accommodation Control Act and the appellant was entitled to terminate the tenancy of the respondent under Section 106 of TP. Act."

22. Considering the aforesaid, the first Appellate Court has rightly

decreed the appeal and rightly decided that the suit is maintainable.

23. In view of the foregoing discussion, and as the plaintiff- trust is a

religious trust and it has been granted privileges in the light of notification

(Rajendra Pal Singh Yadav Vs. Scindia Devsthan Trust & others)

dated 12/07/2019, whereby State of M.P. in exercise of powers vested

under Section 3(2) of M.P. Accommodation Control Act, has notified that

in continuation to the previous notification dated 07/09/1989, the public

charitable trusts having property in the State of M.P. despite registered

outside of M.P., are also exempted from the provisions of M.P.

Accommodation Control Act and also specify that the notification is also

applicable on the pending cases, this Court is of the considered view that

no substantial question of law involved in the present second appeal.

Consequently, present second appeal is hereby dismissed being devoid of

merits.

(Rajeev Kumar Shrivastava) Judge Shubhankar* SHUBHANKAR MISHRA 2021.05.03 17:07:12 +05'30'