JUDGMENT : 1. The second appeal has been filed against the judgment of the Additional District Judge No. 2, Jodhpur dated August 9, 1988 by which he confirmed the judgment of the Additional Munsif No. 2, Jodhpur dated September 3, 1985, decreeing the suit for ejectment and mesne profits @ Rs. 30/- per month. The facts of the case giving rise to the appeal may be summarised thus. 2. On August 10, 1976, the plaintiff-respondent filed a suit in the Court of the Munsif City, Jodhpur for the ejectment of the defendant-appellant and for the recovery of Rs. 570/- as arrears of rent and mesne profits with the allegations, in short, that a property popularly know "Kumbat Sohan Piao" belonging to 'Thakurji Shri Balaji Hanumanji Maharaj' is situated at Mahamandir crossing, Jodhpur. It is a private trust and is managed by its founder manager and trustee Shri Sampatraj. A portion of the property consisting of a shop, front verandah and back sal is in the tenancy and occupation of the defendant on a monthly rent of Rs. 30/-. He has not paid rent after 31.12.1974 despite several demands. He has trespassed upon the open land and piao of the said property and also on the roofs of the demised shop and sal and is using them for last six months. He quarrelled with the next friend of the plaintiff when he requested him for not using the portions which are not in his tenancy and vacating them. He has also constructed a water tank on the said open land and he has demolished the wall intervening in between the demised shop and the sal and has constructed a door there. This has caused a great damage to the plaintiff's property and he is entitled to get compensation at the rate of Rs. 60/- per month from 1.1.76. The defendant refused to take notices sent by registered post on 9.3.76, 11.5.76 and 11.6.76. 3. The defendant admits in his written-statement that the property belonging to Balaji Maharaj Hanuman Ji Maharaj is situated at Mahamandir crossing, Jodhpur. His case is that he is in occupation and possession of the entire property as a tenant on monthly rent of Rs. 30/- except the verandah in which the temple of Shri Hanumanji Maharaj exists and the piao and he had paid rent up to 31.12.1975. The trust is not registered. His case is that he is in occupation and possession of the entire property as a tenant on monthly rent of Rs. 30/- except the verandah in which the temple of Shri Hanumanji Maharaj exists and the piao and he had paid rent up to 31.12.1975. The trust is not registered. The demised premises was initially taken on monthly rent of Rs. 7/- in Samvat 2009 and the rent was enhanced from time to time. He is entitled to get standard rent fixed at the rate of Rs. 15/- per month and the court-fee is being paid for it. The rent of the period commencing from 1.1.76 was offered several times but it was refused by the plaintiff's agent. No portion of the property has been trespassed by him and the entire property except the piao and verandah in which the temple of the Sri Hanumanji is existing is in his tenancy. He has not constructed any new door. It was existing since the beginning. The suit deserved to be dismissed as requisite court-fee on the portion of the property alleged to have been trespassed has not been paid and their present market value is Rs. 15,000/-. It suffers from the misjoinder of causes of action. 4. The plaintiff filed replication on 12.7.78. Nine issues were framed on 26.3.79. The amount of rent and interest was determined under Section 13(3). Rajasthan Premises (Control of Rent & Eviction) Act (hereinafter to be called the Act) and it was duly deposited by him in time. Additional issue No. 8-A was framed on 7.1.83. The issues regarding the misjoinder of the causes of action and court-fee were decided in favour of the plaintiff vide order dated 27.8.79. On September 14, 1982, the defendant moved an application under Order 6, Rule 17 CPC for the amendment of the written-statement for incorporating the plea that the said trust is a public trust, the value of the property of the trust is over Rs. 1 lac and the suit is not maintainable as it is not registered. The plaintiff filed its reply, seriously oppositing it. After hearing the parties, the trial Court partly allowed the application and permitted the amendment to the extent that the market value of the said property of the plaintiff is over Rs. 3,000/- and the suit is not maintainable as the trust is not registered. The plaintiff filed its reply, seriously oppositing it. After hearing the parties, the trial Court partly allowed the application and permitted the amendment to the extent that the market value of the said property of the plaintiff is over Rs. 3,000/- and the suit is not maintainable as the trust is not registered. Accordingly, para No. 3 was added in the additional pleas of the written-statement. After recording the evidence of the parties and hearing them, the learned trial Court decreed the suit by its judgment dated 29.9.83, holding that shop, front verandah and back sal were only let out to the defendant, he has committed default in payment of rent, he has trespassed on other portions of the property, i.e., on the roof of the demised shop and sal and open land, he has constructed water tank and has opened a door in the wall intervening shop and sal and has thus materially altered the demised premises. It has also been held that the plaintiff is a private trust, the value of the property of the trust does not exceed Rs. 30,000/- and the suit is perfectly maintainable. Appeal No. 25/83 was filed by the defendant. It was allowed and the case was remanded to decide it afresh after recording the evidence of Shyam Singh DW-5 on the point of the market value of the property of the plaintiff trust by the Additional District Judge No. 2, Jodhpur by his judgment dated August 17, 1984. 5. After the remand, an application was moved by the defendant for framing an issue and issue No. 8-A was framed to the following effect:- "whether the value of the property of the private trust is more than Rs. 30,000/-, it is not registered and the suit is not maintainable". The statement of Shyam Singh D.W. 5 was duly recorded on 12.11.84. After hearing the parties, the learned trial Court again decreed the suit by its judgment dated September 9, 1985. All the issues except issues No. 7 and 8 which had already been decided in the year 1979 were again decided in the manner as were decided earlier. The issue No. 8-A was decided in favour of the plaintiff. Appeal No. 46/85 filed against the judgment. All the issues except issues No. 7 and 8 which had already been decided in the year 1979 were again decided in the manner as were decided earlier. The issue No. 8-A was decided in favour of the plaintiff. Appeal No. 46/85 filed against the judgment. An application under Order 6, Rule 17 and Section 151, CPC was moved for the amendment of the written-statement to incorporate the plea that the plaintiff-trust is a public trust on the ground that a notice has been issued to the plaintiff by the Devasthan Department, Jodhpur and an enquiry is being conducted for taking action against the plaintiff for not getting it registered. Another application was moved for not hearing and deciding the appeal till the said enquiry is completed by the Devasthan Department. The respondent filed his reply, seriously opposing the applications. The learned Additional District Judge heard the arguments on these applications and also appeal simultaneously and dismissed both the applications and the appeal by his judgment dated August 9, 1988, which has been challenged in this second appeal. 6. Besides stating light substantial questions of law in the memorandum of appeal, the learned counsel for the defendant-appellant proposed on 13.3.89 the following substantial questions of law in writing:- "1. Had the Courts below jurisdiction to pass a decree in favour of the plaintiffs for that portion of the land for which court-fee had not been paid and regarding which, even according to the plaintiff himself as per para 4 of his rejoinder, there was no claim in this suit ? 2. Does opening of a door or window in the wall between sal and room in this case amount to material alteration for which the tenant can be evicted ?3. Is the valuation of property mentioned in para 3(b) more than Rs. 5,000/- and the Court of Munsif had no jurisdiction to hear the suit ?5. Had the lower Courts jurisdiction to decide the nature of the Trust (public or private) in view of Section 73, Rajasthan Public Trusts Act, and specially so when the competent Authority under the said Act has held it to be Public Trust and has given notice to Sri Sampatraj Kumbat on 17.12.1987 to show cause why he should not be punished under Section 70 of RPT Act, 1959 ? 6. Is the value of Trust property more than Rs. 6. Is the value of Trust property more than Rs. 30,000/- and hence its registration was compulsory and for want of registration this suit is barred by Section 29 of RPT Act and other provisions thereof ? 7. Had the Courts below erred seriously in law in rejecting the applications of the defendant under Order 6, Rule 17 and Section 151, CPC and Section 29 RPT Act ? 8. Even if the defendant had not expressly said in his written statement that it was a Public Trust could the Court assume jurisdiction to decide this question when its jurisdiction is barred by Section 73 read with Sections 17, 18 etc. and specially so when the notice from the Devasthan Commissioner to Shri Sampatraj was brought on record. 9. Have the Courts below erred in law in treating it as a Public Trust without considering the patta granted to Thakurji Shri Balaji (Hanumanji) granted in Dharmada by the former Jodhpur Government and without considering the definition of "Public Trust" which includes temple and dharmada ? 10. Have the Courts below erred in law in rejecting the unrebutted evidence of Shyam Singh without applying their mind to it, when his evidence is based on a published Book of Basic Schedule Rules of P.W.D." ?Question No. 1:-7. There is concurrent finding of fact of both the lower Courts that a shop, front verandah and back sal were only let out to the defendant and the latter has trespassed upon the adjoining land and also on the roof of the demised shop and sal. These findings of fact have not been challenged. No question has been proposed on this point. Suits between the landlord and tenant are governed by Section 41, Rajasthan Court Fees and Suits Valuation Act, 1961. Admittedly, present suit is in between landlord and tenant and is governed by sub-section (2) of this section. It does not require separate court-fee on the trespassed property. Court-fee on the rent payable for the year next before the date of presentation of the plaint is only required. It is settled law that a tenant cannot hold adversely to his landlord by the mere fact of encroachment. Prayer for possession of trespassed portion is incidental to that of the recovery of possession of demised property. Reference of A. Vagaira Charity v. Soundara Raja, AIR 1967 Mad. 305 , may be made here. It is settled law that a tenant cannot hold adversely to his landlord by the mere fact of encroachment. Prayer for possession of trespassed portion is incidental to that of the recovery of possession of demised property. Reference of A. Vagaira Charity v. Soundara Raja, AIR 1967 Mad. 305 , may be made here. The plaintiff has nowhere said in its replication that he does not claim ejectment from the trespassed portions. Thus no substantial question of law arises on this point.Question No. 2:-8. There is a concurrent finding of facts of both the lower Courts that the defendant has trespassed upon the adjoining open land (not leased out to him) and also on the roof existing over the demised shop and sal, he has constructed water tank on the said open land, he has demolished the wall intervening in between the shop and sal and has constructed a door there. They have further held that all these have been done without the permission of the plaintiff. On the basis of these findings, both the lower Courts have rightly held that the defendant has materially altered the demised premises. Great reliance has been placed by the learned counsel for the appellant on Omparkash v. Amar Singh, AIR 1987 SC 617 and Brijendra Nath Bhargava v. Shri Harsh Vardhan, AIR 1988 SC 293 . Even in these cases, it has been observed that no definition could be given of material alteration and it will have to be decided on the basis of facts and circumstances appearing in each case. It has been observed in Omparkash's case at page 619 that the material alteration contemplates change of substantial nature effecting the form and character of the building. Moreover, the learned counsel for the plaintiff-respondent has contended that the detailed averments have been made in para 3(Ba) of the plaint on which ejectment of the defendant has been sought and it has now here been averred in the plaint that the plaintiff seeks ejectment of the defendant under clause (c) or clause (d) or any other clause of sub-section (1) of Section 13 of the Act and these averments have duly been proved.9. They contended that these averments and the aforesaid concurrent findings of facts also make out a case for ejectment of the defendant under clause (d) of sub-section (1) of Section 13 of the Act. 10. They contended that these averments and the aforesaid concurrent findings of facts also make out a case for ejectment of the defendant under clause (d) of sub-section (1) of Section 13 of the Act. 10. The word "nuisance" is derived from French word "nuirs" which means to injure, or harm. Anything injurious or obnoxious to the community or to the individual as a member of it for which some legal remedy may be found is nuisance. Literally anything that causes annoyance or that works hurt or injury, harm or prejudice to an individual or the public or anything wrongfully done or permitted which injures or annoys another in the legitimate enjoyment of his legal rights would constitute nuisance. Encroachment or illegal possession by the defendant over the said portions of the trust property amounts to nuisance. Section 3(1)(d) of the U.P. (Temporary) Control of Rent and Eviction Act, 1947 is in pari materia with clause (d) of sub-section (1) of Section 13 of the Rajasthan Premises (Control of Rent and Eviction) Act, 1954. It has been held in Ganga Prasad v. Choube Jagdish Prasad, 1967 ALJ 708, that taking of possession of another part of the building belonging to the landlord in an assertion to a right of tenancy by the tenant amounts to creating nuisance within the meaning of Section 3(1)(d) of the U.P. Act. There is yet another aspect of the matter. The illegal encroachment of the aforesaid portions of the plaintiff's property has adversely and substantially affected its interest within the meaning of last clause of Section 13(1)(d) of the Act. It has further been observed in 1967 ALJ 708 at page 710, as follows:- "The assertion of the defendant that the kothri and the tin-shed were also the part of the tenancy to my mind is an act which is likely to affect adversely and substantially the landlord's interest in the premises let out to the defendant. In this view of the matter the case of the plaintiffs is covered by the first as well as the latter part of Section 3(d) of the Rent Control and Eviction Act. In this view of the matter the case of the plaintiffs is covered by the first as well as the latter part of Section 3(d) of the Rent Control and Eviction Act. The contention of the learned counsel that unless some act in respect of the Tall itself was done it could not be said that the tenant has created a nuisance or done anything which would affect adversely and substantially the landlord's interest therein has not appealed to me. In my opinion on the finding of fact recorded by the two Courts below that although tin-shed and kothri was not part of the tenancy still the defendant contended the same to be a part of the tenancy brought his case within the four corners of Section 3(d) of the Rent Control and Eviction Act." This case has been affirmed in Jyanti Prasad v. Tilak Chand Jain. On this ground also, the decree for ejectment deserves to be confirmed.Question No. 3:- 11. Issue No. 4 was framed on this point. The learned trial Court has observed that no evidence has been produced by the defendant to enable the Court to determine the standard rent. It is mentioned in the judgment under appeal that no arguments were advanced against the decisions of the issue Nos. 4 to 8. Affidavit of Shri Mohanlal Panwar, Advocate has been filed in this Court stating that he had submitted his arguments on these issues and had also given citations of rulings. The only course open for challenging this statement contained in the judgment was to move an application before A.D.J. No. 2, Jodhpur himself immediately after the judgment was pronounced. Admittedly, this was not done. It has been observed in State of Maharashtra v. Ramdas Shriniwas Nayak, AIR 1982 SC 1249 at page 1252 para 4, as follows:- "4. When we drew the attention of the learned Attorney General to the concession made before the High Court, Shri A.K. Sen, who appeared for the State of Maharashtra before the High Court and led the arguments for the respondents there and who appeared for Shri Antulay before us intervened and protested that he never made any such concession and invited us to pursue the written submission made by him in the High Court. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. We are afraid that we cannot launch into an inquiry as to what transpired in the High Court. It is simply not done. Public Policy bars us. Judicial decorum restrains us. Matters of judicial record are unquestionable. They are not open to doubt. Judges cannot be dragged into the arena. "Judgments in the game of litigation." (Per Lord Atkinson in Somasundaran v. Subramanian, AIR 1926 PC 136 ). We are bound to accept the statement of the Judges recorded in their judgment as to what transpired in Court. We cannot allow the statement of the Judges to be contradicted by statements at the Bar or by affidavit and other evidence. If the Judges say in their judgement that something was done, said or admitted before them, that has to be the last word on the subject. The principle is well-settled that statement of fact as to what transpired at the hearing, recorded in the judgment of the Court, are conclusive of the facts so stated and no one can contradict such statements by affidavit or other evidence. If a party thinks that the happenings in Court have been wrongly recorded in a judgment, it is incumbent upon the party, while the matter is still fresh in the minds of the Judges, to call the attention of the very Judges who have made the record to the fact that the statement made with regard to his conduct was a statement made with regard to his conduct was a statement that had been made in error (Per Lord Buckmaster in Madhusudan v. Chandrabati, AIR 1917 PC 30 ). That is the only way to have the record corrected. If no such step is taken, the matter must necessarily end there. Of course a party may resile and an Appellate Court may permit him in rare and appropriate cases to resile from a concession on the ground that the concession was made on a wrong appreciation of the law and had led to gross injustice. but, he may not call in question the very fact of making the concession as recorded in the judgment." 12. It may also be mentioned here that it has also been stated in the judgment dated August 17, 1984, decided by Shri Jagpal Singh, A.D.J. No. 2, Jodhpur that Shri Mohanlal Panwar, Advocate learned counsel for the defendant-appellant, submitted his arguments on two points only. It may also be mentioned here that it has also been stated in the judgment dated August 17, 1984, decided by Shri Jagpal Singh, A.D.J. No. 2, Jodhpur that Shri Mohanlal Panwar, Advocate learned counsel for the defendant-appellant, submitted his arguments on two points only. In view of these facts, circumstances and authoritative observations, no reliance can be placed on the affidavit of Shri M.L. Panwar, Advocate. It may also be mentioned here that the issue Nos. 4, 5, 6 and 7 have also not been challenged in the memorandum of the first appeal No. 46/85. Thus no substantial question of law is involved on this point.Question No. 4:- 13. No specific issue has been framed on this point. There is nothing on the record to indicate that the market value of the portions of the trust property mentioned in para No. 3(b) of the plaint was more than Rs. 5,000/- on the date of the suit. As observed above while discussing the question No. 1, no separate court-fee was required in respect of these portions of the trust property, the suit is in between the landlord and tenant and court-fee is payable on one year's rent. There is no specific provision regarding the valuation of such a suit in the Rajasthan Court Fees and suits Valuation Act, 1961. According to Section 48(1) of this Act, the value for the purpose of valuation of suit shall be same as the value for the purpose of computing the fee payable under this Act. Thus, it is not a substantial question of law in this appeal.Question Nos. 5, 7, 8 and 9:- 14. It is specifically stated in para No. 1 of the plaint that Thakurji Shri Balaji Hanuman Ji Maharaj is a private religious trust. This fact has not at all been denied in the written-statement. There is no material on record to indicate in any manner that it may be a public trust. Even the notice issued by the Devasthan Department, Jodhpur in the year 1987 to the plaintiff has not been filed. Notification No. F.3 (F 11) Revenue/A/59 dated June 28, 1962 of the Revenue (A) Department, Government of Rajasthan runs as under:- "REVENUE 'A' DEPARTMENT NOTIFICATION Jaipur, June 28, 1962. Even the notice issued by the Devasthan Department, Jodhpur in the year 1987 to the plaintiff has not been filed. Notification No. F.3 (F 11) Revenue/A/59 dated June 28, 1962 of the Revenue (A) Department, Government of Rajasthan runs as under:- "REVENUE 'A' DEPARTMENT NOTIFICATION Jaipur, June 28, 1962. No. F. 3F (11) Rev./A/59 - In exercise of the powers conferred by sub-section (4) of Section 1 of the Rajasthan Public Trust Act, 1959 (Rajasthan Act 49 of 1959), the State Government hereby directs that the provisions of Chapters V, VI, VII, VIII and IX of the said Act shall come into force on the 1st day of July, 1962, and shall apply therefrom to all public trusts throughout the State of Rajasthan whose gross annual income from all sources whatsoever is not less than Rs. 3,000/- or the total valuation of the assets whereof is not less than Rupees 30,000/-, a draft notification to this effect having already been published, as required by sub-section (5) of Section 1 of the said Act, in the Rajasthan Gazette Extraordinary, Part III-B dated May 21, 1962. G.L. Mehta, Secretary to the Government." According to it, Chapters V, VI, VII, VIII and IX of the Rajasthan Trust Act came into force w.e.f. July 1, 1962. If plaintiff trust would have been a public trust, the Devasthan Department, Jodhpur must have taken action against it. The very fact that no such action has been taken during last over 25 years also indicates that it is private trust. In reply to the application moved by the defendant before the Additional District Judge No. 2 for the stay of the hearing of the first appeal, it is stated therein that Shri, Mohanlal Panwar, Advocate (learned counsel for the defendant in the lower Courts) has himself sent a complaint to the Devasthan Department, Jodhpur and a notice has been given to him. It is also stated in it that the Devasthan Department has not asked the plaintiff for getting the trust registered under the Rajasthan Public Trust Act. It is correct that the trial Court as well as the first appellate Court did not allow the applications, the defendant wanted to wriggle out from his said admission that the plaintiff trust is a private trust. He wanted to introduce the plea of the public nature of the trust. Both the Courts rightly dismissed the applications. It is correct that the trial Court as well as the first appellate Court did not allow the applications, the defendant wanted to wriggle out from his said admission that the plaintiff trust is a private trust. He wanted to introduce the plea of the public nature of the trust. Both the Courts rightly dismissed the applications. It has been observed in M/s. Modi Spinning & Weaving Mills v. Madharam and Company, AIR 1977 SC 680 paras 9 and 10, as follows:- "9. The decision of the trial Court is correct. The defendants cannot be allowed to change completely the case made in paragraphs 25 and 26 of the written statement and substitute an entirely different and new case. 10. It is true that inconsistent pleas can be made in pleadings but the effect of substitution of paragraphs 25 and 26 is not making inconsistent and alternative pleadings but it is seeking to displace plaintiff completely from the admissions made by the defendants in the written statement. If such amendments are allowed the plaintiff will be irretrievably prejudiced by being denied the opportunity of extracting the admission from the defendants. The High Court rightly rejected the application for amendment and agreed with the trial Court".It is thus the admitted case of the parties that the plaintiff-trust is a private trust and not a public trust. When such is the pleadings of the parties, there is no question of framing an issue about the nature of the trust and decide it. Admittedly, no such issue has been framed and decision has been given by the Court. Thus it cannot, therefore, be said that these are substantial questions of law in this account appeal for answer. 15. Issue No. 8-A runs as under:- D;k oknxzLr lEifr dk ewy:- 30]000@& ls vf/kd gSa o fet V~LV jftLMZ ugha gSa vr% okn pyus ;ksX; ugha gSA It was framed after the amendment of the written statement to this effect. As a matter of fact, it was not at all necessary to frame this issue. Private trust does not require registration. As such the valuation of the property of the plaintiff trust is of no relevance in this case. 16. According to the above quoted notification, if the total valuation of the assets of the plaintiff trust was more than Rs. Private trust does not require registration. As such the valuation of the property of the plaintiff trust is of no relevance in this case. 16. According to the above quoted notification, if the total valuation of the assets of the plaintiff trust was more than Rs. 30,000/- and if it was a public trust, suit could not be filed without it being registered as required under Section 29(d) of the Rajasthan Public Trust Act. It is not in dispute that the plaintiff-trust was existing when the said notification was issued on June 28, 1962. Assuming for the sake of arguments for a moment that the plaintiff-trust was a public trust. Even then the suit cannot be held to be barred by Section 29 of the Rajasthan Public Trust Act as it is not proved from the evidence on record that the total valuation of all its asset was more than Rs. 30,000/- on July 1, 1962. It is not the case of the defendant that its gross annual income from all the sources was Rs. 3,000/-. The defendant has relied upon report Ex. A/2 prepared by Shyamlal D.W. 5. It deserves to be rejected per se. On the last page of it, it is mentioned that the total land of the plaintiff-trust is 62.516 sq. metres. The value of it has been calculated at the rate of Rs. 2,000/- per sq. metre. There is nothing on the record to indicate the basis of taking this rate. Admittedly, the plaintiff-trust has the aforesaid property only. The case of the defendant is that he is in occupation as a tenant since the year 1961 on monthly rent of Rs. 7/- of the entire trust property except the piao and verandah in which the temple is existing. The temple has no market value. Even according to present rent, the market value of the portion of the building in occupation of the defendant does not come out to be more than Rs. 30 x 12 x 20 : 7,200/- In arriving to this figure, gross rent and multiple of 20 have been taken into consideration. No substantial question of law arises on this point also. 17. Thus, there is no force in the second appeal. It is dismissed with costs. 30 x 12 x 20 : 7,200/- In arriving to this figure, gross rent and multiple of 20 have been taken into consideration. No substantial question of law arises on this point also. 17. Thus, there is no force in the second appeal. It is dismissed with costs. The defendant is given two months' time to vacate the entire premises in his occupation and possession and to deliver its actual & physical possession to plaintiff.Appeal dismissed.