Idol Shriji, Lakherapura, Bhopal v. Gappulal — 1976 DIGILAW 108 (MP)

JUDGMENT Tankha, J. – 1. This appeal under section 100 of the Code of Civil Procedure is by the appellant-plaintiff against the judgment and decree dated 28.2.1974 passed by the First Additional Judge to the Court of First Additional District Judge, Bhopal, in Regular Civil Appeal No. 9-A of 1973. 2. Brief facts of the case are that Idol Shri Ji Lakherapura temple located at Bhopal is a public trust which was initially not registered but the registration was effected in the year 1969 during the pendency of the present suit. The names of the trustees mentioned in column 3 of the registration copy on record are (i) Goswami Ratna Prabha (ii) Shri Babulal Sharma as Mukhia and working trustee. Before the trust was registered Babulal Sharma alone as the sole trustee determined the tenancy of the respondent No.1-defendant in relation to the suit accommodation by service of a quit notice (Ex. P-3) dated 22-2-1961 under section 106 of the Transfer of Property Act. Since respondent No. l - defendant neither vacated the suit accommodation nor paid the demanded arrears of rent, the present suit was filed in the name of Idol Shri Ji through Babulal Sharma on 19.4.1961 for the ejectment of the respondent No.1-defendant from the suit accommodation and also for the realisation of arrears of rent. But in view of the provisions of section 32(1) of the M.P. Public Trusts Act, 1951, the public trust being unregistered, the Civil Court could not proceed with the suit. Therefore, the trial Court stayed the suit till the public trust was got registered under the M.P. Public Trusts Act, 1951. The registration was effected on 14-11-1969 and the other trustee Smt. Ratan Prabha was first joined as defendant No.2, but later vide trial Court's order dated 28-1-1972 she was transposed as plaintiff No.2, who is now respondent No.2. The suit was contested by respondent No. 1-defendant on various counts by denying all the allegations. 3. The trial Court decreed the suit of the plaintiffs. But in appeal, the lower appellate Court set aside the judgment and decree of the trial Court. It held that the plaintiffs were entitled to recover the rent only at the rate of Rs. 7.50 per month with suitable directions to the respondent No.1 - defendant in that regard for the payment of rent for 37 months if not already deposited in Court. It held that the plaintiffs were entitled to recover the rent only at the rate of Rs. 7.50 per month with suitable directions to the respondent No.1 - defendant in that regard for the payment of rent for 37 months if not already deposited in Court. This second appeal has been filed by Idol Shri Ji (appellant-plaintiff No. 1) alone while plaintiff No.2 has been joined as respondent No. 2. Respondent No.1-defendant has filed his cross-objection under Order 41, rule 22 of the Code of Civil Procedure raising the point of limitation by urging that the claim of rent decreed for the last three years would be barred by time and could not have been decreed. 4. Having heard learned counsel of the parties, I am of opinion that this appeal has merit and it must be allowed. 5. The first contention of the learned counsel for the appellant-plaintiff No. 1 was that the lower appellate Court wrongly held that the notice dated 22-2-1961 (Ex. P-3) served under section 106 of the Transfer of Property Act determining the tenancy of the respondent No.1-defendant was invalid. The lower appellate Court has held the said notice to be invalid on two grounds, namely, that it did not comply with the requirements of section 106 of the Transfer of Property Act inasmuch as the landlord failed to prove the commencement of the tenancy to decide that the demand to vacate the suit premises in the said notice related to the end of the tenancy month and also Babulal alone could not determine the tenancy, there being one more trustee (plaintiff No.2) whose approval, was not secured. With regard to the first ground, the lower appellate Court has detailed out reasons in paras 5 to 88 of its judgment for purposes of arriving at its conclusion in that respect. But, in my opinion, the said Court misdirected itself for purposes of arriving at its conclusion by failing to consider material aspect of the case as is borne out from the pleadings of the parties. The appellant-plaintiff No.1 had set up a specific case to the effect that the tenancy commenced from month to month from Chait Sudi 15 of every Vikram calendar month. The respondent No.1-defendant in his written statement though denied the fact of the date of the commencement of the tenancy but admitted that it was monthly. The appellant-plaintiff No.1 had set up a specific case to the effect that the tenancy commenced from month to month from Chait Sudi 15 of every Vikram calendar month. The respondent No.1-defendant in his written statement though denied the fact of the date of the commencement of the tenancy but admitted that it was monthly. Thereafter he did not specify any specific date from which his tenancy commenced. Even in his statement as D.W. 1 he did not mention the date of the commencement of the tenancy according to him. It was in these circumstances that the trial Court was of opinion that the tenancy in the present case commenced as alleged in the plaint and also mentioned in the notice (Ex. P-3) by which the said tenancy was determined. The lower appellate Court has tried to make out a case in favour of respondent No. 1-defendant on the basis of over-writing in figure 15 in the document (Ex. P-1-A), which is a copy of an entry in the Bahi of the idol maintained by Babulal (P.W. 1), working trustee. But I do not find any cross examination of Babulal (PW.1) with regard to the said over-writing so as to disbelieve him that the tenancy did not start from Chait Sudi 15 as stated in the plaint, in his evidence and in the document (Ex. P-1-A). I am, therefore, of opinion that the lower appellate Court was not right in adverting itself with reference to the over-writing of figure 15 in Ex. P-1-A. That being so, it could not have been held that the appellant-plaintiff No.1 failed to prove by evidence the date on which the tenancy begins and ends. The question was to be decided on the basis of the evidence on record. This Court would, therefore, have jurisdiction to interfere with a finding of fact in second appeal when it finds that the lower appellate Court failed to consider material piece of evidence on record. Accordingly, I reverse the said finding of the lower appellate Court. 6. An regards the second ground about the invalidity of the notice (Ex. P-3.) the lower appellate Court clearly acted illegally in holding as such on the ground that Babulal alone could not determine the tenancy unless the other trustee (plaintiff No.2) had also consented to terminate the tenancy. Accordingly, I reverse the said finding of the lower appellate Court. 6. An regards the second ground about the invalidity of the notice (Ex. P-3.) the lower appellate Court clearly acted illegally in holding as such on the ground that Babulal alone could not determine the tenancy unless the other trustee (plaintiff No.2) had also consented to terminate the tenancy. The cases relied upon by the lower appellate Court in support all relate to the filing of a suit on behalf of the trust. Therefore, the said Court completely misdirected itself in applying the rule laid down in those cases for the point under consideration. In my opinion, a notice to terminate a tenancy need not be given by all the trustees or to say in other words it is not necessary that all the trustees must join in issuing the notice of termination of a tenancy. Even in a case where there are more than one trustee who are managing the trust property and these trustees are the landlords of a particular tenant, and if any one of them is not willing to continue the tenancy and terminates it, the termination cannot be held to be illegal since others did not join him in that. I am supported in my view by a decision of the Mysore High Court in Kolangada Poranna v. Palthur Vishweshwarayya, AIR 1962 Mysoor 71 of which relevant para 6 reads as under :- "It is well settled law that if there are more than one trustee who are in management of the trust property, and even if it can be said that all those trustees arc the landlords of a particular tenant, the tenant will not be entitled to continue to be in possession of the property leased to him which belongs to the trust, even if anyone of the landlords, namely, trustees, is unwilling to continue the tenancy and brings about its termination." Therefore, the notice (Ex. P-3) was wrongly held invalid on this ground. 7. Besides what I have stated earlier, as for the present case is concerned Babulal (PW. 1) undisputedly was managing the trust property and respondent No.1-defendant at his instance executed a document (Ex. P-1-A) agreeing to pay rent at the rate of Rs. 20/- per month. He even sent consolidated amount of rent of few months by a money order which bears the address of Babulal (P.W. 1). 1) undisputedly was managing the trust property and respondent No.1-defendant at his instance executed a document (Ex. P-1-A) agreeing to pay rent at the rate of Rs. 20/- per month. He even sent consolidated amount of rent of few months by a money order which bears the address of Babulal (P.W. 1). This money order was returned vide its coupen (Ex. D-2) filed by respondent No.1-defendant. All this shows that Babulal would be deemed to be a landlord in view of the definition of 'landlord' given in section 2 (c) of the MP. Accommodation Control Act, 1955 which was applicable to that area when the notice dated 22-2-1961 (Ex. P-3) was served. Even if it may be assumed that the provisions of the new Act, 1961 were applicable, then also Babulal would be deemed to be the landlord under the new section 2(b) of the Act, 1961. In this view of the matter, differing from the view of the lower appellate Court, I hold that the notice dated 22-2-1961 (Ex. P-3) though served by Babulal alone was valid terminating the tenancy. 8. The second contention of the learned counsel for the appellant-plaintiff No.1, was that the lower appellate Court wrongly held that the contract entered into by Babulal (PW. 1) with respondent No. 1-defendant increasing the monthly rent of the accommodation from Rs. 7.50 to Rs. 20/- in the bahi which was maintained by him on behalf of the idol, of which document (Ex. P-1-A) is the copy, was not valid as concurrence of the second trustee was not obtained. In my opinion, the contention has force. Once the execution of the document entailing payment of Rs. 20/- as monthly rent of the accommodation in the occupation of the respondent No.1 -defendant Gappulal (D.W. 1) was admitted by him in his evidence, he could not be permitted to resile from that contract which was binding as far as he was concerned. The burden to prove the plea that he did not agree to pay the rent at that rate, which he took in his written statement, was on him, which he failed to discharge. This contract was no doubt entered into by Babulal (PW.1) alone without the concurrence of the other trustee, but that would not make the contract invalid as having been made by one trustee alone since it was in the interest of the deity. This contract was no doubt entered into by Babulal (PW.1) alone without the concurrence of the other trustee, but that would not make the contract invalid as having been made by one trustee alone since it was in the interest of the deity. Moreover, it was never disputed that Babulal (PW.1) was not alone managing the trust property. Therefore, in that capacity if the contract was entered into by him for the benefit of the deity, even though other trustee was not a party to the contract, the said contract cannot be held to be vitiated. Learned counsel for the respondent No. 1 defendant tried to contend that in view of the provisions of section 5 of the MP. Accommodation Control Act, 1961, the agreement (Ex. P-1-A) relating to payment of enhanced rent at the rate of Rs. 20/- would not be enforceable. In my opinion, the submission is devoid of any substance. It is well settled that if the standard rent in fixed, then only section 5 shall apply with full force and if neither the standard rent exists nor it has been determined, the tenant is bound to pay the contractual rent. As I have already held that in the absence of the concurrence of the other trustee the contract cannot be questioned, the respondent No. 1-defendant was bound to pay the agreed rent as mentioned in Ex P-1-A. Thus, differing from the reasoning of the lower appellate Court that the appellant-plaintiff No. 1 was only entitled to realise rent of the suit accommodation at the rate of Rs. 7.50 per month. I hold that the rent that was to be recovered was at the rate of Rs. 20/- per month as held by the trial Court from the date shown in the document (Ex. P-1-A). 9. Now, this takes me to consider the point of limitation raised in the cross-objection submitted on behalf of the respondent No. 1-defendant. According to the learned counsel appearing for the respondent No. 1-defendant, the suit would be deemed to have been validly constituted after the trust was registered in the year 1969 and the plaintiff No.2 (the other trustee) also made a party to the suit, which was sometime in the year 1972. According to the learned counsel appearing for the respondent No. 1-defendant, the suit would be deemed to have been validly constituted after the trust was registered in the year 1969 and the plaintiff No.2 (the other trustee) also made a party to the suit, which was sometime in the year 1972. He, therefore, tried to contend that the rent due for the preceding three years prior to the date on which the suit was properly constituted alone could be decreed and not as claimed in the suit which was filed in the year 1961. In my opinion, the submission advanced is on an incorrect understanding of the true legal position. The bar provided by section 32(1) of the MP. Public Trusts Act is not against filing of suits to enforce rights on behalf of public trusts but tile bar is against the hearing or deciding such suits. Therefore, all that the Court should do is to stay the suit till the public trust concerned is not registered under the said Act, which was done in the instant Case. The trust was got registered on 14-11-1969 and a certified copy of the registration (Ex.P-2) is on record. From the wordings of section 32 of the Act, it is clear that the said provision appears to be mere procedural not affecting the vested rights of the party as held in Jawaharlal Chhunnilal v. Ramkrishna Malik alias Jafarmal, 1962 JLJ 969. That being so, it cannot be urged that when the suit was filed in the year 1961 without getting the trust registered it could not be entertained by the Court or to say there was no suit in the eye of law. So nothing turns on this point. As regards the other connected point on the basis of joining plaintiff No.2 (other trustee) sometime in the year 1972 it was tried to be contended that in view of the provisions of section 21 of the Limitation Act, 1963 the said plaintiff was a new plaintiff who was added to the suit subsequently as mentioned above and in the absence of whom the suit could not proceed and, therefore, the suit would be deemed to be properly constituted when she was made a party. In that view of the matter, the arrears of rent prior to the period beyond three years would be time barred and no decree could have been passed for the realisation of the same. It is no doubt true that in view of the decision of a Division Bench of this Court in Laxman Prasad v. Shri Deo Janki Raman, 1973 JLJ 904 all trustees ought to have been joined to represent the idol. But in the instant case it was not initially done and the other trustee was made a party to the suit in the year 1971 and shown in the array of defendants and later transposed as plaintiff No.2 in the year 1972. Therefore, the defect in the representation, if any, stood cured. But then the question that arises for consideration is whether the joinder of plaintiff No.2 was a correction or misdescription or an addition of a new party. In the instant case, the suit was filed in the name of an idol through Babulal and the other trustee (plaintiff No.2) was not joined as a party at that stage. Therefore, the idol was not properly represented by all the trustees in the suit but by only one and the second trustee was left out. In such circumstances, if the second trustee was also later on added as plaintiff No.2 it was only a proper representation of the idol and not one of addition of a new plaintiff. Under Note 37 of Order 1, rule 10, Chitaley's Code of Civil Procedure Vol. 2, 8th Edition, at page 552, it has been observed as under :- "Where it is clear who the person who intends to sue or who is intended to be sued is, but he, is described wrongly, it is a case of misdescription of parties which can be corrected by the Court at any time. Similarly, where relief is originally claimed by or against a party (such as an idol a minor or a corporation) who has to be represented by some person, the proper representation of that party is a question of the description of the party, and not one of addition of new parties. A series of decisions of various High Courts have been cited in support of the proposition, which I need not reproduce here". A series of decisions of various High Courts have been cited in support of the proposition, which I need not reproduce here". It is equally well settled that when an idol is substantially on the record of a suit from the beginning, the rectification of the original improper representation by a proper representation cures all the original technical defects with effect from the date of institution of the suit, the rectification cannot be treated as the addition of a new party so as to attract the penal provisions or section 21 of the Limitation Act. I am supported in my view by a, Division Bench decision of the Madras High Court in Subramania Aiyar v. M. Subba Naidu and another, 21 IC 421, and another Division Bench decision of the same High Court in Kanda Ponnappa Naicken and others v. Yenkataseshaiyar and others, AIR 1919 Mad. 809, wherein it has been held as under :- "......that if some persons who have an interest in the trust sue to enforce the rights of the trust, the subsequent addition of more representatives out of time would not be within the mischief of S. 22, Limitation Act......". Therefore, I am of opinion that the submission of the learned counsel for respondent No. 1-defendnt does not survive on the second count also. I, therefore, hold that the arrears of rent claimed in the suit would not be time barred. I would also like to mention here that the approach of the lower appellate Court while deciding this point, although in favour of the appellant-plaintiff No. 1, by exercising the powers under the-proviso to section 21 of the Limitation Act was not correct as it did not arise here in view of my opinion that the provisions of section 21 of the Act have no application at all. 10. At the fagend of the arguments it was faintly contended on behalf of the respondent No. 1-defendant that the case be remanded to the lower appellate Court as it has not given a finding whether the respondent No. 1-defendant had paid or not all arrears of rent after receipt of notice (Ex P-3). In my opinion, the contention has no substance. In my opinion, the contention has no substance. The lower appellate Court in para 2 of its judgment has clearly mentioned as under :- "......It is again undisputed that "there were arrears of rent at the time of the demand cum quit notice Ex. P-3 (dt. 22-2-1961) whose receipt has not been denied." The trial Court in para 3 of its judgment has dealt with the admitted position before it that out of total arrears only Rs. 171.00 were paid and Rs. 569.00 were still outstanding till 31-3-1961, while the suit was filed on 19-4-1971. It was not shown from the record that all the arrears were paid within the time specified after receipt of the notice under the old Act of 1955 which was applicable when the notice terminating the tenancy was served or even after the present suit was filed on 19-4-1961. In this view of the matter, I see no justification for remanding the case to the lower appellate Court. I would also like to mention that this case is being litigated for the last more than 15 years. 11. For the reasons stated above, this appeal succeeds and is allowed with costs. The judgment and decree passed by the lower appellate Court are set aside and those of the trial Court are restored. Counsel's fee as per schedule or a certificate which ever is less.