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2007 DIGILAW 118 (UTT)

TILAK CHAND @ TILAK RAM v. MOKSHDHAM TRUST

2007-03-19

PRAFULLA C.PANT

body2007
JUDGMENT Hon’ble Prafulla C. Pant, J. 1. By means of this Writ Petition, moved under Article 226 read with Article 227 of Constitution of India, the petitioner has sought writ in the nature of certiorari quashing the impugned judgment and order dated 24.08.2006 passed by learned District Judge, haridwar in S.C.C. Revision No. 6/2006 and judgment and order dated 10.4.2006 passed by learned Civil Judge, (J.D.)/Judge S.C.C., Haridwar in Small Cause Suit No. 7/1999. 2. Heard learned counsel for the parties and perused the record. 3. Brief facts of the case as narrated in the writ petition are that on 15.3.1999 the responents filed a Small Cause Suit No. 7/1999 on 15.3.1999 in respect of building owned by Swami Anand Swaroop Brahmachari, alleging that a trust is created by him on 28.01.1993. The respondents/plaintiffs further alleged in the suit that vide gift deed dated 05.02.1993 Swami Anand Swaroop Brahmachari transferred his other properties also to the Mokshdham Trust (Respondent No. 1). It was further pleaded by the respondents/plaintiffs that petitioner is tenants in the property in suit to which Provisions of U.P. Urban Building (Regulation of Letting Rent and eviction) Act 1972 are not applicable as the same is a Public Religious property belonging to the trust. The respondents/plaintiffs have alleged in the suit that the tenancy of the petitioner (defendant) was terminated by serving a notice dated 14.09.1998 under Section 106 of Transfer of Property Act, 1882. By said notice rent for a period of 15.03.1996 to 15.10.1998 and mesne profits for the period of 16.10.1998 to 15.03.1999 were claimed from the petitioner. 4. Petitioner (defendant) filed a written statement in the said suit denying the averments made in the plaint. It is pleaded by the defendant/petititioner before the trial court that neither any trust is created nor any property is transferred to it by Anand Swaroop Brahmachari. The petitioner (defendant) denied in the written statement that the respondents (plaintiffs) are landlord of the property in suit. It is admitted in the written statement that property belonged to Swami Anand Swaroop Brahmachari but it is pleaded that he had two disciples namely Vijay Swaroop Brahmachari and nagendra Swaroop Brahmachari. It is not denied that Anand Swaroop Brahmachari has died in 1995. According to the petitioner (defendant) Anand Swaroop Brahmachari used to collect the rent from the petitioner. It is admitted in the written statement that property belonged to Swami Anand Swaroop Brahmachari but it is pleaded that he had two disciples namely Vijay Swaroop Brahmachari and nagendra Swaroop Brahmachari. It is not denied that Anand Swaroop Brahmachari has died in 1995. According to the petitioner (defendant) Anand Swaroop Brahmachari used to collect the rent from the petitioner. After the death of Anand Swaroop Brahmachari, Nagendra Swaroop Brahmachari claimed himself to be the owner of the property in question on the basis of will and filed a suit No. 133/1998 for injunction. As per the pleadings the plea of the petitioner (defendant) is that since dispute as to the ownership in respect of the property exists as such the petitioner is not liable to pay any rent to the respondents. In the writ petition it is alleged that though said suit no. 133/1998 filed by nagendra Brahmachari was dismissed on 10.05.2000 by the Trial Court but a First Appeal No. 445 of 2000 (New No. 158 of 2001) is pending in the High Court. 5. After recording evidence of the parties and hearing them the learned Judge Small Causes Court decreed the suit for eviction and arrears of rent and mesne profits against the defendant (present petitioner) on 10.04.2006. The S.C.C. Revision No. 6/2006 is filed by the petitioner before the District Judge, Haridwar. After hearing the parties the same was also dismissed vide impugned order dated 24.08.2006. Challenging both the orders passed by Judge Small Causes court and the Revisional Court this writ petition is filed by the petitioner (defendant) on the ground that the litigation in respect of the title of property in suit is pending as such the Judge Small Causes Court had no jurisdiction to try the suit. The Trial Court should have returned the plaint uner Section 23 of the Provincial Small Cause Courts Act, 1887. The impugned orders are also challenged on the ground that the founder trustees are not impleaded with the trust in suit in question. As such the suit was not maintainable. 6. In the Counter Affidavit the respondents have raised the objection that in view of principle of law laid down in Ranjeet Singh Vs. The impugned orders are also challenged on the ground that the founder trustees are not impleaded with the trust in suit in question. As such the suit was not maintainable. 6. In the Counter Affidavit the respondents have raised the objection that in view of principle of law laid down in Ranjeet Singh Vs. Ravi Prakash, reported in 2004 (3) SCC Page 682 the High Court should not interfere in its exercise under Article 226/227 of the Constitution of India with the concurrent finding of fact concluded by the Court below. It is further statd in the Counter Affidavit that Nagendra Brahmachari has prepared the forged and unregistered will and on its basis the rights of the trust as against the tenants in the building are not afected. It is further stated in the Counter Affidavit that the petitioner (defendant) was found defaulter in payment of rent by the Courts below. It is also stated by the respondents (plaintiffs) in their counter affidavit that the petitioner has no business to raise issue as to the internal management of the trust. 7. Admittedly the building in question was owned by Swami Anand Swaroop Brahmachari. It is also not denied that the petitioner is the tenant in disputed portion of the building. The dispute has been raised whether the respondents (plaintiffs) are the landlords or not. On this point there is concurrent finding of fact of the court below. Learned counsel for the petitioner (defendant) raised the issue that since there is dispute of title of the property between nagendra Swaroop Brahmachari and the respondents (plaintiffs) as such in view of Section 23 of Provincial Small Cause Courts Act, 1887 the plaint should have been returned by the trial court as such the Courts below have committed error of law in decreeing the suit against defendant. Section 23 of Provincial Small Cause Courts Act, 1887 reads as under :- “23. Return of plaints in suits involving questions of title. Section 23 of Provincial Small Cause Courts Act, 1887 reads as under :- “23. Return of plaints in suits involving questions of title. - (1) Notwithstanding anything in the foregoing portion of this Act, when the right of a plaintiff and the relief claimed by him in a Court of Small Causes depend upon the proof or disproof of a title to immoveable property or other title which such a Court cannot finally determine, the Court may at any stage of the proceedings return the plaint to be presented to a Court having jurisdiction to determine the title. (2) When a Court returns a plaint under sub-section (1), it shall comply with the provisions of the second paragraph of Sec. 57 of the Code of Civil Procedure and make such order with respect to costs as it deems just, and the Courrt shall, for the purpose of the Indian Limitation Act, 1877, be deemed to have been unable to entertain the suit by reason of a cause of a nature like to that of defect of jurisdiction.” 8. Under the aforesaid provisions the plaints are required to be returned for presentation to Court having jurisdiction provided the claim of the plaintiff depends on the proof or disproof of title of immoveable property which such Court cannot finally determine. It is pertinent to mention here that defendant (present petitioner) in his written statement before the trial court no where pleaded that he was the owner of the property in suit rather he has admitted that Anand Swaroop Brahmachari was te owner of the property. It is also not disputed beteween the parties that during the lifetime of Anand Swaroop Brahmachari before creation of alleged trust petitioner used to pay rent to Anand Swaroop Brahmachari. As such status of tenant of the defendant (petitioner) is not disputed. The question now is who is his landlord to whom the rent is payable. The petitioner has failed to show that anyone else except the respondents have claimed arrears of rent from him after the death of Anand Swaroop Brahmachari. In the circumstances since ownership and landlordship are two different status as such even if dispute of ownership exists between Narendra Brahmachari and the Trust created by Anand Swaroop Brahmachari, the petitioner (defendant) cannot take benefit of the same. Apart from this copy of the judgment of suit no. In the circumstances since ownership and landlordship are two different status as such even if dispute of ownership exists between Narendra Brahmachari and the Trust created by Anand Swaroop Brahmachari, the petitioner (defendant) cannot take benefit of the same. Apart from this copy of the judgment of suit no. 133/1998 filed by Narendra Brahmachari decided on 10.05.2000 by the trial court, a copy of judgment of which is on record, makes it clear that Narendra Brahmachari had only filed suit for prohibitory injunction and the said suit was dismissed. Not only this the counter claim of the respondents is allowed in the said suit. As such even if the First Appeal against the said judgment and decree dated 10.5.2000 is pending before the High Court it cannot be said that intricate question of title is involved in the S.C.C. Suit. Needless to say that for grant of injunction, possession is required to be shown by the plaintiffs. nagendra Brahmachari has not sought declaration of title in his favour in aforesaid suit no. 133/1998. Therefore, this court is of the view that the Trial Court has not committed any error of law in not returning the plaint undfer Section 23 of Provincial Small Cause Courts Act, 1887, nor the Revisional Court has committed any error of law in dismissing the revision. It is relevant to mention here that till date trust deed relied by the respondents is not cancelled by any Court of law. 9. Learned counsel for the petitioner further argued that the founder trustees are not impleaded in the plaint as such the suit is not maintainable. In rpely to this learned counsel for the respondents argued that some of the founder trustees have died and some of them have resigned. The other trustees have been impleaded with the plaintiff trust. In this connection it is further argued that in the written statement no specific objection was raised as to the maintainability of the suit on the aforesaid objection. As such the argument advanced before this Court on behalf of the petitioner has no force. In the circumstances I agree with the reply given by the learned counsel for the respondents. 10. As such the argument advanced before this Court on behalf of the petitioner has no force. In the circumstances I agree with the reply given by the learned counsel for the respondents. 10. Lastly it is argued on behalf of the petitioner that no notice regarding transfer of property to the trust was given on behalf of the Trust nor the demand was made for arrears of rent by the respondents as such the Trial Court has erred in accepting the plaintiffs as landlords. From the paper on record it is clear that before filing the suit for eviction, notice was served on the petitioner but he did not pay arrears of rend claimed by the respondents as such this Court does not find any force in the above argument. 11. For the reasons as discussed above, the writ petition is liable to be dismissed. The same is dismissed. No order as to costs. However the petitioner is allowed three months time from today for delivery of possession of the rented accommodation in suit occupied by him, to the respondents failing which the respondents shall be at liberty to get executed decree in question.