Smt. Vijay Jagtap vs Scindia Devessthan Trust ...
2022 Latest Caselaw 13316 MP

                              1

       IN THE HIGH COURT OF MADHYA PRADESH
                    AT GWALIOR
                          BEFORE
   HON'BLE SHRI JUSTICE DEEPAK KUMAR AGARWAL
                ON THE 11th OF OCTOBER, 2022

                SECOND APPEAL No. 292 of 2016

    Between:-

 SMT. VIJAY JAGTAP W/O SHIVAJIRO
 JAGTAP, AGED ABOUT 75 YEARS,
 OCCUPATION: HOUSE WIFE CHATTI
 DAULATRO    MAHARAJ    PARISHAR
 CHATTRI MANDI CHATTRI BAZAR
 LASHKAR     GWALIOR     (MADHYA
 PRADESH)

                                          ........APPELLANTS

      (BY SHRI N.K. GUPTA- SENIOR ADVOCATE WITH SHRI
S.D.S. BHADORIA-ADVOCATE)

    AND


  1.   SCINDIA   DEVESSTHAN      TRUST
  REGISTRERED OFFICE 27 SAFDARJUNG
  NEW DELHI TH ITS SECRETARY RANA
  KARAN SINGH S/O LATE RANA SURENDRA
  SINGH JAIVILAS COMPUS GWALIOR
  (MADHYA PRADESH)
  2. JYOTIRADITYA SCINDIA S/O LATE
  SHRIMANT     MAHARAJA      MADHORAO
  SCINDIA(CHAIRMAN        TRUST)    27,
  SAFDARGANJ ROAD NEW DELHI (DELHI)
  3. SMT. MADHVIRAJE SCINDIA W/O LATE
  SHRIMANT     MAHARAJA      MADHORAO
  SCINDIA(TRUSTEE) 27, SAFDARGANJ ROAD
  NEW DELHI (DELHI)
                                            2


   4. SMT. PRIYADARSHANIRAJE SCINDIA W/O
   SHRIMANT       JYOTIRADIYA    SCINDIA
   (TRUSTEE) 27, SAFDARGANJ ROAD NEW
   DELHI (DELHI)
   5. SMT. UJJWALA PHALKE W/O SHRI VIJAY
   PHALKE(TRUSTEE)       USHA   COLONY,
   LASHKAR (MADHYA PRADESH)
   6. BRIG. NAR SINGH PAWAR S/O SHRI
   BAPURAO PAWAR (TRUSTEE) MANDREY KI
   MATA, LASHKAR (MADHYA PRADESH)
   7. SMT. USHA RAJE RANA W/O SHRI RANA
   SHEMSHER          BAHADUR       SINGH
   OCCUPATION:         NA      VIJAYAVAS
   MAHARAJGANJ       KATHMANDU     NEPAL
   (NEPAL)
   8. SMT. SUSHMA SINGH W/O LATE SHRI
   DHARMENDRA          BAHDUR      SINGH
   OCCUPATION:      NA   VIJAY  BHAWAN,
   JAIVILAS CAMPUS (MADHYA PRADESH)
                                                             ........RESPONDENTS

    (BY SHRI VARUN                      KAUSHIK          -    ADVOCATE            FOR
RESPONDENT NO.1)

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This appeal is coming on for hearing this day, the Court passed

the following:

JUDGMET

Appellant preferred this Second appeal under Section 100 of

C.P.C. aggrieved by the judgment and decree dated 05.05.2016 passed

by the Fourth Additional District Judge, Gwalior, District Gwalior in

First Appeal No.44A/2016 whereby the judgment and decree dated

29.11.2011 passed in Civil Suit No.39-A/2010 by Fourth Additional Civil

Judge Class II, Gwalior, District Gwalior by which suit for eviction by

the respondents has been allowed.

In brief, the fact of the case are that appellant took out on rent, the

disputed house No.320 situated at Ward No.21 from respondent-trust on

08.01.1976 at rate of 350/- rupees per month without other charges.

From November, 2007, she has stopped paying the rent and made

construction adjoining the rented property. Due to this, a notice was

served upon her on 16.02.2010 for termination of tenancy and handing

over the possession. Despite this, she neither paid the rent nor evicted

the house. Plaintiff being a trust, provision of M.P. Accommodation

Control Act would not be applicable.

On behalf of trust, Secretary of the aforesaid trust Rana Karan

Singh filed aforesaid suit. Denying the averments of plaint, appellant

averred that respondents any how want to increase the rent upto

Rs.1000/-. Due to this, on the false pretext, they have filed a Civil Suit.

She is aged about 75 years and she is living alone. After framing the

issues and taking evidence, learned trial Court decreed the suit of the

respondents. Aggrieved by the aforesaid judgment and decree, appellant

preferred First Appeal before first appellate Court which also affirmed

the judgment and decree by partly coming to the conclusion that

respondents could not proved that appellant made a construction adjacent

to the rented property. Aggrieved by the judgment and decree of the

Court below, appellant preferred this Second Appeal on the ground that

learned Court below erred in allowing the suit and passed a decree in

favour of respondents especially person who filed a Civil Suit has no

authority to file a Civil Suit on behalf of respondents.

Learned counsel for the respondents- plaintiffs has submitted that

the first appellate Court as well as the trial 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. 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. 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 (Babasahab Phalke Vs. Scindia Devsthan Trust & others)

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.

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.

Heard learned counsel for the rival parties and perused the

available record.

Karan Singh Rana, Secretary of Scindia Devasthan Trust deposed

that Scindia Devasthan Trust is a religious trust 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. Trust was

constituted as per registered deed. He has been holding the said post

since 24.12.2007 and authorized by the Trustees to file civil suit on

behalf of trust.

During cross-examination he stated that he has not produced any

document regarding his appointment as Secretary. He admitted that the

map annexed with the suit is of rented property. The property is in

possession of tenant. At present the rent of disputed property is @ 350/-

per month. He denied that defendants want to increase the rent. He

admitted that proceedings to vacate the premises are being initiated

against the tenants. He denied that defendant No.1 deposited Rs.13300/-

as arrears of rent from the period of 12.03.2007 to February, 2007. He

denied that Scindia Devasthan Trust knowingly returned the cheque. He

admitted that defendants constructed kitchen and bathroom due to which

structure of the rented premises has been changed. He denied that the suit

has been filed for getting higher rent.

Learned trial Court in its impugned judgment and decree framed

issue No.4 as to whether Karan Singh was competent to file Civil Suit or

not. Since respondents have not raised any objection, the said issue being

irrelevant was deleted.

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."

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 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.

The Apex Court in Karnataka Board of Wakf Vs. Anjuman-

Eismail Madris-un-Niswan, (AIR 1999 SC 3067) has observed that the

High Court should not interfere with the concurrent finding of fact in a

routine and casual manner by substituting its subjective satisfaction in

place of lower Courts.

In view of the aforesaid facts, this Court is of the view that there is

no substantial question of law involved in relation to the findings given

by both the Courts below. Accordingly, the second appeal is dismissed

being devoid of merits.

However, looking to the fact that appellant is residing in the suit

premises since 1976, six month's time is granted to the appellant to

vacate the suit premises. It is hence directed that:-

a). The appellant shall be entitled to retain possession of the suit

premises upto 30.4.2023 and shall handover possession of the same to

the respondents on 1.5.2023.

b) The appellant shall deposit the entire arrears of rent and shall

continue to pay the monthly rent by the 15th day of the succeeding

month.

c)Appellant shall furnish undertaking before the executing Court

within a period of three weeks that they shall vacate the premises on

30.4.2023 without any let or hindrance.

d) In case of violation of any of the terms as aforesaid, the

impugned decree shall become executable forthwith.

Certified copy as per rules.

(DEEPAK KUMAR AGARWAL) JUDGE mani

YOGENDRA OJHA 2022.10.14 19:01:31 +05'30'