Madhya Pradesh High Court
Ramesh Kumar Gupta (Deceased) Through ... vs Dev Ram Janki Mandir Badiawala on 6 May, 2025
Author: Sanjay Dwivedi
Bench: Sanjay Dwivedi
1 SA No.2942-2024
IN THE HIGH COURT OF MADHYA PRADESH
AT JABALPUR
BEFORE
HON'BLE SHRI JUSTICE SANJAY DWIVEDI
ON THE OF 6th MAY, 2025
SECOND APPEAL NO. 2942 of 2024
RAMESH KUMAR GUPTA (DECEASED) THROUGH LRS ABHISHEK
GUPTA AND OTHERS
Versus
DEV RAM JANKI MANDIR BADIAWALA
...................................................................................................................................................................................................................
Appearance:
Shri Siddharth Gulatee - Senior Advocate with Shri Sudhir
Kumar Mishra - Advocate for the appellants.
Shri Shashank Shekhar - Senior Advocate with Shri Samresh
Katare - Advocate for the respondent.
...................................................................................................................................................................................................................
ORDER
Record of the Courts below has been received.
2. Counsel for the appellants is heard on the question of admission.
3. This appeal under Section 100 of the Code of Civil Procedure has
been preferred by the appellants/defendants against the judgment and
decree dated 03.08.2024 passed by the Second District Judge, Pipariya,
District Narmadapuram in RCA No.08/2022 whereby affirming the
judgment and decree dated 29.06.2022 passed in favour of
respondent/plaintiff by the Second Civil Judge, Senior Division,
Pipariya, District Narmadapuram, the appeal preferred by the appellants
has been dismissed.
4. Shri Gulatee, learned senior counsel appearing for the appellants
has submitted that the appellants/defendants have disputed the
ownership/landlord-ship of the respondent/plaintiff saying that the suit
was filed by the plaintiff without any competence as he was not validly
appointed trustee and his appointment was made by the Sub Divisional
Officer (Revenue), who has no jurisdiction to appoint Mahant
Youngeshwar Das as trustee of the respondent/trust and, therefore, the
suit ought to be dismissed on the ground that Shri Mahant Youngeshwar
Das was not competent to file a suit on behalf of the trust i.e. Dev Ram
Janaki Mandir. Shri Gulatee has submitted that though the issue of
competency was not framed by the Court below and this has also not
been dealt with by the appellate Court but this Court can consider it
because it goes to the root of the matter. He has further submitted that it
is the duty of the plaintiff to adduce proper evidence so as to show
whether he has right to file suit on behalf of the trust and as to how he
has been appointed as a trustee (Sarvarakar) but that has not been
proved by the plaintiff and, therefore, suit failed and judgment and
decree passed by the trial Court deserve to be set aside and further the
appeal preferred by the appellants under Section 96 of the Code of Civil
Procedure ought to have been allowed.
5. Shri Gulatee has also submitted that a proceeding under Section
26 of M.P. Public Trust Act, 1951 (hereinafter referred to as the 'Act,
1951') is pending before the competent authority and as such, it is clear
that the suit could not have been filed as the appointment of Sarvarakar
in favour of Shri Youngeshwar Das is under cloud. He has further
submitted that the appointment of Sarvarakar claimed by the plaintiff
namely Shri Mahant Youngeshwar Das was on the basis of 'Will' but
that was not the proper mode to appoint Sarvarakar and, therefore, the
Court should have dismissed the suit on the ground of competency. He
has also pointed out that a writ petition, i.e. W.P. No.9695/2013 was
filed before this Court in which appointment of Shri Youngeshwar Das
as the Sarvarakar was under challenge and the said writ petition was
allowed by this Court vide order dated 07.08.2024 and, therefore, he has
submitted that it is clear that Shri Youngeshwar Das was not validly and
legally appointed trustee of the trust i.e. Dev Ram Janaki Mandir and,
therefore, the suit ought to be dismissed.
6. Shri Gulatee has further pointed out that a notice under Section
106 of Transfer of Property Act was given by the plaintiff/respondent
terminating the lease (tenancy) of the defendants/appellants but after
issuing notice, the rent deposited during the pendency of suit has been
withdrawn by the plaintiff and as such, he has waived his right to seek
decree of eviction. He has relied upon a decision passed by this Court in
case of Murli Shri Deo Radha Madhawlal Jee Geda Trust, Sagar
and Others Vs. Pradeep Kumar Nayak reported in (2001) ILR 534
and submitted that the impugned judgment and decrees are liable to be
set aside in view of the facts and circumstances of the case.
7. Shri Gulatee, learned counsel for the appellants during the course
of arguments has raised three points :-
(i) "Whether, the suit is maintainable as the same has been
filed by a non-trustee whose appointment has been set aside being
in violation of Section 34 (A) of the Act, 1951"?
(ii) "Whether, the so called trustee has failed to prove his
authority to file the suit on behalf of the trust?
&
(iii) "Whether, the quit notice under Section 106 of Transfer of
Property Act stands waived by the plaintiff by accepting the rent
deposited before the Court"?.
8.. I have heard the arguments and perused the record.
9. So far as the first question about competency of the suit is
concerned, although the said issue could neither be framed before the
Court nor decided but considering the judgment and decree passed by
the trial Court and affirmed by the appellate Court, it is clear that the
appellants/defendants have accepted the tenancy of the
respondent/plaintiff in the affidavit filed under Order 18 Rule 4 of CPC
in which they have very categorically admitted the fact that they are the
tenant of the suit shop on a rent of Rs.300/- per month and rent was
being paid to the Mahant of the Public Trust and receipt whereof was
given to him till December, 2009 and after the month of January, the
plaintiff/respondent refused to accept the rent even by way of a money-
order and, therefore, by moving an application before the Rent
Controlling Authority, permission was sought to deposit the rent before
the Court so that respondent/plaintiff may not seek a decree of eviction
by declaring the defendants as defaulters and as such, they started
depositing the rent from the month of January, 2010 till December,
2022. Thus, it is clear that when the defendants had accepted the fact in
respect of landlord-ship and tenancy of the plaintiff, then there is no
reason for this Court to enter into the said arena and to determine the
competency of the plaintiff to hold that Mahant Youngeshwar Das is not
the valid trustee of the trust. It is the concurrent finding of fact by both
the Courts below about the landlord-ship of the plaintiff and since that
issue was not raised before the Court, therefore, at this stage, this Court
is also not inclined to enter into the said field. The question of
competency in regard to Mahant Youngeshwar Das even has not been
decided by the writ Court in W.P. No.26995/2021 because in the said
case, relief claimed was not related with appointment of trustee.
Although, it is found that Mahant Youngeshwar Das was appointed as a
trustee by way of a 'Will' and since that has not been challenged so far,
therefore, in such a circumstance, it is not required to deal with the said
issue and as such, issue Nos. 1 and 2 raised before the Court are
answered accordingly.
10. With regard to the issue of waiver by accepting the rent is
concerned, Shri Gulatee has placed reliance upon a judgment passed by
the Supreme Court in case of Murli Shri Deo Radha Madhawlal Jee
Geda Trust (supra), though the facts of the said case and the law laid
down therein are not applicable in the present facts and circumstances
for the reason that in the said case, the quit notice was issued on
30.06.1988 accepting the rent from 27.10.1987 to 31.05.1990 whereas
the suit was filed on 11.06.1990, meaning thereby, the rent was being
accepted before filing the suit and after issuing quit notice, but here in
this case, facts are altogether different. The rent was not being accepted
by the plaintiff and with the permission of the Court, it has been
deposited before the Court and that has been withdrawn by the plaintiff
only after filing of the suit. Not only the High Court has observed in the
case relied upon by counsel for the appellants that in such a condition,
the principle of waiver cannot be used against the plaintiff, but even the
Supreme Court in a case of Ganga Dutt Murarka Vs. Kartik
Chandra Das and Others reported in AIR 1961 SC 1067 has
considered this particular aspect and observed as under:-
"4. Section 116 of the Transfer of Property Act in so far as it is material
provides that if a lessee of property remains in possession thereof after the
determination of the lease granted to him and the lessor accepts rent from
the lessee or otherwise assents to his continuing in possession, the lease is,
in the absence of an agreement to the contrary, renewed from year to year
or from month to month according to the purpose for which the property is
leased as specified in Section 106. It is, however, well settled that where a
contractual tenancy to which the rent control legislation applies has expired
by efflux of time or by determination by notice to quit and the tenant
continues in possession of the premises, acceptance of rent from the tenant
by the landlord after the expiration or determination of the contractual
tenancy will not afford ground for holding that the landlord has assented to
a new contractual tenancy. It was observed by B.K. Mukherjea, J. (as he
then was) in Kai Khushroo v. Bai Jerbai [(1949) II Federal Court Reports
266] :
"On the determination of a lease, it is the duty of the lessee to
deliver up possession of the demised premises to the lessor. If
the lessee or a sub-lessee under him continues in possession
even after the determination of the lease, the landlord
undoubtedly has the right to eject him forthwith; but if he does
not, and there is neither assent or dissent on his part to the
continuance of occupation of such person, the latter becomes in
the language of English law a tenant on sufferance who has no
lawful title to the land but holds it merely through the laches of
the landlord. If now the landlord accepts rent from such person
or otherwise expresses assent to the continuance of his
possession a new tenancy comes into existence as is
contemplated by Section 116, TP Act, and unless there is an
agreement to the contrary, such tenancy would be regarded as
one from year to year or from month to month in accordance
with the provisions of Section 106 of the Act."
It was further observed:
".....in cases of tenancies relating to dwelling houses to which
the Rent Restriction Acts apply, the tenant may enjoy, a statutory
immunity from eviction even after the lease has expired. The
landlord cannot eject him except on specified grounds
mentioned in the Acts themselves. In such circumstances,
acceptance of rent by the landlord from a statutory tenant whose
lease has already expired could not be regarded as evidence of a
new agreement of tenancy and it would not be open to such a
tenant to urge, by way of defence, in a suit for ejectment brought
against him under the provisions of Rent Restriction Act that by
acceptance of rent a fresh tenancy was created which had to be
determined by a fresh notice to quit."
11. Further, the Supreme Court in case of Sarup Singh Gupta Vs. S.
Jagdish Singh and Others reported in (2006) 4 SCC 205 has also dealt
with the similar situation about accepting the rent by the plaintiff and
applicability of principle of waiver and observed as under:-
" 8. In the instant case, as we have noticed earlier, two notices to quit
were given on 10-2-1979 and 17-3-1979. The suit was filed on 2-6-
1979. The tenant offered and the landlord accepted the rent for the
months of April, May and thereafter. The question is whether this by
itself constitutes an act on the part of the landlord showing an
intention to treat the lease as subsisting. In our view, mere acceptance
of rent did not by itself constitute an act of the nature envisaged by
Section 113, Transfer of Property Act showing an intention to treat the
lease as subsisting. The fact remains that even after accepting the rent
tendered, the landlord did file a suit for eviction, and even while
prosecuting the suit accepted the rent which was being paid to him by
the tenant. It cannot, therefore, be said that by accepting rent, he
intended to waive the notice to quit and to treat the lease as
subsisting. We cannot ignore the fact that in any event, even if rent
was neither tendered nor accepted, the landlord in the event of
success would be entitled to the payment of the arrears of rent. To
avoid any controversy, in the event of termination of lease the
practice followed by the courts is to permit the landlord to receive
each month by way of compensation for the use and occupation of the
premises, an amount equal to the monthly rent payable by the tenant.
It cannot, therefore, be said that mere acceptance of rent amounts to
waiver of notice to quit unless there be any other evidence to prove or
establish that the landlord so intended. In the instant case, we find no
other fact or circumstance to support the plea of waiver. On the
contrary, the filing of and prosecution of the eviction proceeding by
the landlord suggests otherwise. "
Thus, it is clear that the issues raised before this Court by counsel for the
appellants are having no substance and even, I do not find that there is
any illegality committed by both the Courts in decreeing the suit in
favour of the respondent/plaintiff. Since the finding given by both the
Courts are concurrent finding of fact and even during the course of
arguments, learned counsel for the appellants has failed to establish any
perversity in the orders passed by both the Courts below, therefore,
considering the law laid down by the Supreme Court consistently
holding that the jurisdiction of this Court to interfere with the finding of
fact under Section 100 of the Code of Civil Procedure is very limited
until the finding is either perverse or based on no evidence, this Court
cannot interfere with the concurrent finding of fact. [See: Sugani (mst.)
v. Rameshwar Das, (2006) 11 SCC 587, Gurdev Kaur v. Kaki, (2007)
1 SCC 546, Praksah Kumar v. State of Gujrat, (2004) 5 SCC 140,
Thiagarajan v. Sri Venugopalaswamy B. Koil, (2004) 5 SCC 762 and
Narayanan Rajendran v. Lekshmy Sarojini, (2009) 5 SCC 264]. The
finding of fact even if erroneous would not be disturbed in second
appeal unless the finding is shown to be perverse and based on surmises
and conjectures. [See: Kulwant Kaur v. Gurdial Singh Mann, (2001)
4 SCC 262, Hafazat Hussain v. Abdul Majeed, (2001) 7 SCC 189
and Bharath Matha v. R. Vijay Rengandathan, (2010) 11 SCC 483].
12. In view of the above, I am of the opinion that the appeal does not
involve any substantial question of law. Thus, it is hereby dismissed.
(SANJAY DWIVEDI)
JUDGE
rao
SATYA SAI RAO
2025.05.19
19:58:20 +05'30'
