N.K. Jain, J.—Heard learned counsel for both the parties. 2. This second appeal on behalf of the defendant-tenant, under Sect. 100 of the Code of Civil Procedure, arises out of a suit for eviction and arrears of rent filed by the plaintiff-respondent against the defendant-appellant, which has been decreed by both the Courts below on the ground of denial of title as well as tenancy of plaintiff by the defendant. 3. Briefly stated the relevant facts of the case are as under – 4. The plaintiff filed a suit for eviction, in respect of rented premise, in the trial Court, on 29.1.1980 wherein it was pleaded that the defendant took the suit premise, the description of which is mentioned in Para 1 of the plaint, from one Saubhagmal adopted son of Nathulal, on monthly rent of Rs.8/- and executed a rent-note dt. 12.07.1978 (Exhibit-1) in favour of Saubhagmal. Shri Saubhagmal gifted the said property to the plaintiff through registered gift-deed dt. 26.11.1979 (Exhibit-2). The defendant has not paid the monthly rent of the rented premise since January, 1979, therefore, the defendant is a defaulter and thus liable to be evicted therefrom. Shri Saubhagmal also gave a right to the plaintiff to recover the due rent from the defendant, therefore, the plaintiff is entitled to recover a sum of Rs.96/- for 12 months for the period from 1.1.1979 to 31.12.1979. It was also pleaded that tenant has also willfully caused substantial damage to the rented premise. It was further pleaded that there is a bona-fide requirement of the rented premise to plaintiff. 5. The defendant filed his written-statement, on 19.5.1980 wherein he denied the contents of the plaint and pleaded that he never executed any rent-note in favour of Saubhagmal nor he took the disputed property on rent from him. He never remained tenant of Saubhagmal. Shri Saubhagmal has no connection whatsoever with the disputed house and the owner thereof is Mst. Gopi W/o Mohanlal, who had mortgaged the disputed property with the defendant about 8 to 10 years ago, and, as such, the defendant is in possession of the disputed property. It was also pleaded that the defendant is not the tenant of any person in the disputed property. 6. Gopi W/o Mohanlal, who had mortgaged the disputed property with the defendant about 8 to 10 years ago, and, as such, the defendant is in possession of the disputed property. It was also pleaded that the defendant is not the tenant of any person in the disputed property. 6. The plaintiff filed an application in the trial Court on 25.07.1980 stating therein that the defendant, in his written-statement, has denied the title and tenancy of the plaintiff as well as Saubhagmal, therefore, he had denied the title of landlord, therefore he is liable to be evicted on this ground also, and prayed for inclusion of this ground of eviction also in the suit and to frame an issue on it also. A copy of application was served upon the learned counsel for the defendant and the case was fixed for reply and arguments on application on 21.08.1980. The defendant did not file any reply to the said application. The trial Court, on the basis of pleadings of the parties and application, framed four issues on 21.08.1980. Issue No.1 was as to whether the defendant took the disputed house on monthly rent of Rs. 8 from Saubhagmal and executed a rent-note-agreement dt. 12.07.1978. Issue No.2 was as to whether the defendant is a tenant in the disputed house of the plaintiff. Issue No.3 was as to whether the defendant has denied the title and tenancy of landlord and he is liable to be evicted. Issue No.4 was relating to relief. 7. In support of their contentions, both the parties led oral and documentary evidence and, after hearing both the parties and examining the record of the case, the trial Court, vide its judgment dt. 05.03.1990, decided all the issues in favour of the plaintiff and against defendant, and consequently decreed the suit for eviction against the defendant from the disputed house. 8. Being aggrieved with the same, an appeal was preferred by the defendant. The first appellate Court, vide its judgment and decree dt. 07.03.2001, affirmed the finding of the trial Court on all the issues and dismissed the appeal of the defendant. Hence, the defendant-appellant preferred this second appeal before this Court on 27.03.2001. 9. 8. Being aggrieved with the same, an appeal was preferred by the defendant. The first appellate Court, vide its judgment and decree dt. 07.03.2001, affirmed the finding of the trial Court on all the issues and dismissed the appeal of the defendant. Hence, the defendant-appellant preferred this second appeal before this Court on 27.03.2001. 9. During the pendency of this appeal, the learned counsel for the appellant filed two applications, one under Order 41 Rule 27 of the CPC contending therein that during the pendency of the second appeal the appellant no.2, who is son of the appellant No.1, has purchased the house of which the disputed property is a part, vide registered sale-deed dt. 07.05.2001, from Smt. Gopi Bai. A certified Photostat copy of the registered sale-deed dt. 07.05.2001 has been annexed with the application and it has been prayed that it may be taken on the record. The another application is to direct the respondent to produce the registered document executed by Smt. Sunder Bai in favour of PW-2 Saubhagmal as stated by Saubhagmal in his statement. Both the applications are pending, which are also being disposed of by this order. 10. The learned counsel for the appellant Shri N.K. Maloo contended that the disputed house was belonging to one Smt. Sunder Bai W/o Nathulal, who executed a registered ‘will’ dt. 28.12.1967 (Exhibit D-1) in favour of Smt. Gopi Bai Daughter of Kesarlal, who mortgaged the disputed house with the defendant and, as such, defendant is in occupation of the disputed house. The defendant never executed rent-note-agreement dt. 12.07.1978 in favour of Saubhagmal. He further argued that, during the pendency of this second appeal, the appellant No.2 S/o Banne Singh has purchased the disputed property through registered sale-deed dt. 07.05.2001 from Smt. Gopi Bai, therefore, he has now become absolute owner of the property, in dispute. He has filed a copy of sale-deed in this Court with application under Order 41 Rule 27 of the CPC. 11. The learned counsel for the appellants also argued that it was a duty of the plaintiff to plead and prove that there was existence of relationship of landlord and tenant in between the plaintiff and the defendant. The plaintiff could not prove that after execution of the registered gift-deed dt. 11. The learned counsel for the appellants also argued that it was a duty of the plaintiff to plead and prove that there was existence of relationship of landlord and tenant in between the plaintiff and the defendant. The plaintiff could not prove that after execution of the registered gift-deed dt. 26.11.1979 by Saubhagmal in favour of the plaintiff, any notice was given by Saubhagmal or plaintiff to the defendant or any rent was paid by the defendant to Saubhagmal or plaintiff or any attornment was made. He, therefore, contended that when relationship of landlord and tenant itself is not established in between plaintiff and defendant then the denial of title or tenancy of plaintiff by defendant in written-statement or by way of execution of sale-deed dt. 7.5.2001 by Smt. Gopi Bai in favour of defendant are of no consequences. They can be construed as denial of title or tenancy provided it is established that relationship of landlord and tenant is first established, which is not established in the present case in view of his submissions, as mentioned above. 12. Learned counsel for the appellants, in support of his contentions, cited following judicial pronouncements:- 1. S. Thangappan vs. P. Padmavathy, 1999 (7) SCC 474 . 2. J.J. Lal Private Limited & Ors. vs. M.R. Murali and Anr.,-2000 (3) SCC 98. 3. Mirkhan Nathekhan vs. Kutab Ali, 1979 (1) RCR 508. 4. Shiv Narain vs. Bal Kishan, 1979 (1) RCR 626. 5. Raja Mohammad Amir Ahmad Khan vs. Municipal Board of Sitapur and Anr., AIR 1965 SC 1923 . 13. Learned counsel for the respondent, Shri B.L. Mandhana, contended that the present suit was a simple suit for eviction of defendant from the rented premise filed by the plaintiff based on rent-note-agreement dt. 12.07.1978 (Exhibit-1) as well as gift-deed dt. 26.11.1979 (Exhibit-2) and, while deciding Issues No.1 and 2, both the Courts below have recorded a finding that the execution and contents of Exhibit 1 and Exhibit-2 are proved and defendant is a tenant of plaintiff and, this being a question of fact, the finding of fact recorded by both the Courts below in this regard cannot be questioned by the appellants. He further contended that the suit for eviction was filed on 28.01.1980 and written-statement was filed on 19.05.1980. The defendant pleaded that Mst. Gopi Bai mortgaged the disputed property with him about 8 to 10 years ago. He further contended that the suit for eviction was filed on 28.01.1980 and written-statement was filed on 19.05.1980. The defendant pleaded that Mst. Gopi Bai mortgaged the disputed property with him about 8 to 10 years ago. As per the case of the defendant, the property was belonging to Sunder Bai and she executed a ‘will’ dt. 28.12.1967. The said will has been exhibited in the case but no witness of will has been examined, hence the contents of will are not proved in the case. The defendant neither proved will of Sunder Bai nor proved as to when Sunder Bai died and Gopi Bai became the owner on the basis of registered ‘will’ dt. 28th December 1967; he contended that when Gopi Bai was not the owner in the year 1970 then she was not competent to mortgage the disputed property with the defendant in the year 1970. The date, month or the year of the mortgage has not been mentioned in the written-statement. However, DW-1 Banne Singh has stated in his statement that the disputed property was mortgaged with him in the year 1970. He, therefore, contended that in absence of any specific date of death of Sunder Bail on the record it couldn’t be presumed that Gopi Bai became owner and she mortgaged the disputed property with the defendant. He further contended that in absence of alleged mortgage in favour of defendant in writing and its registration also, as it was in respect of immovable property, it couldn’t be presumed that the contention of the defendant in this regard is correct. 14. He also contended that so far as arguments of learned counsel for the appellant, that after execution of registered gift-deed dt. 26.11.1979 no notice was given to defendant, is concerned, he referred to the statement of defendant Banne Singh DW-1, wherein he admitted that he received a notice from Saubhagmal. He also referred the rent-note-agreement (Exhibit-1), which is annexed with a stamp of Rs.3/- purchased on 12.07.1978 by defendant Banne Singh. It bears the signature of defendant Banne Singh and it is annexed with rent-note-agreement (Exhibit-1), which is also signed by the defendant Banne Singh. He also referred the rent-note-agreement (Exhibit-1), which is annexed with a stamp of Rs.3/- purchased on 12.07.1978 by defendant Banne Singh. It bears the signature of defendant Banne Singh and it is annexed with rent-note-agreement (Exhibit-1), which is also signed by the defendant Banne Singh. He contended that during cross-examination PW-2 Saubhagmal specifically denied this fact that this stamp of Rs.3/- (Exhibit-1) was brought by Banne Singh for Gopi Bai, therefore, it is clear that this stamp of Rs.3/- (Exhibit-1) was purchased and brought by defendant on 12.07.1978 for execution of rent-note-agreement. He also contended that the defendant Banne Singh, in his examination-in-chief, did not deny specifically about execution of Exhibit-1 rent-note-agreement. He also contended that although the execution of Exhibit-1 rent-note-agreement is found to be genuine and proved by both the Courts below, but still the learned counsel for the appellant is arguing it in second appeal that the said document is forged one, whereas the defendant did not take a specific plea in the written-statement that Exhibit-1 is a forged document. He also contended that, in fact, the defendant is in habit of manipulation of the facts and documents. The defendant came with a case that Gopi Bai mortgaged the property with him in the year 1970, but no mortgaged-deed has been placed on the record. He also contended that the suit was filed on 28.01.1980; the judgment of the trial Court was passed on 05.03.1990; the judgment of the first appellate Court was passed on 07.03.2001 and the second appeal, before this Court, was filed on 27.03.2001, and even thereafter by manipulating the facts and things, the appellant No.2 got one sale-deed executed on 07.05.2001 from Gopi Bai who had no authority to execute the same. 15. The learned counsel for the respondent, Shri B.L. Mandhana, also contended that the alleged sale-deed dt. 07.05.2001 has been drafted by none else but a person who was the counsel for the defendant in the first appeal, therefore, this sale-deed is a creative, manipulative and fabricated document and it is neither proved nor exhibited in evidence, and, looking to all the facts and circumstances of the case, the application filed by the appellants under Order 41 Rule 27 of the CPC to take the said sale-deed on the record is also liable to be dismissed. He also contended that another application to direct the production of plaintiff’s witness’s document by plaintiff/respondent is also liable to be dismissed being frivolous and not maintainable. 16. So far as existence of relationship of landlord and tenant in between the plaintiff and defendant is concerned, the learned counsel for the plaintiff-respondent contended that soon after execution of registered gift-deed dt. 26.11.1979 (Exhibit-2), the title of assignee was complete and the attornment was automatic and in this connection he relied upon the decision of this Court in Ram Saran Sharma vs. Smt. Kamla Acharya, 2001 (2) RLR 136. He also contended that all the three Issues are relating to question of facts and there is concurrent finding of facts by both the Courts below, which cannot be interfered with by this Court in second appeal under Sec. 100 of the Code of Civil Procedure. He further contended that no substantial question of law is involved in this second appeal and, after amendment made in the Code of Civil Procedure in the year 1976, a second appeal can only be admitted on a substantial question of law and since no substantial question of law is involved in this second appeal, it is liable to be dismissed summarily. 17. I have heard the learned counsel for both the parties and examined the judgment as well as the record of both the Courts below. 18. Before examining the merits of the case, I would first like to refer the judicial pronouncements referred by learned counsel for the parties in support of their contentions, which are as under: 19. In S. Thangappan vs. P. Padmavathy, (1999) 7 SCC 474 , the Hon’ble Apex Court considered the provisions of Section 116 of the Evidence Act with reference to denial of title by tenant of an immovable property of landlord and held as under: “14. This section puts an embargo on a tenant of an immovable property, during the continuance of his tenancy to deny the title of his landlord at the beginning of his tenancy. The significant words under it are “at the beginning of the tenancy”. This is indicative of the sphere of the operation of this section. So a tenant once inducted as a tenant by a landlord, later he cannot deny his landlord’s title. The significant words under it are “at the beginning of the tenancy”. This is indicative of the sphere of the operation of this section. So a tenant once inducted as a tenant by a landlord, later he cannot deny his landlord’s title. Thus, this principle of estoppel debars a tenant from denying the title of his landlord from the beginning of his tenancy. However defective the title of such landlord could (sic may) be, such tenant cannot deny his title. But subsequent to his induction as tenant if the landlord loses his title under any law or agreement and there is a threat to such tenant of his eviction by subsequently acquired paramount title-holder then any denial of title by such tenant to the landlord who inducted him into the tenancy will not be covered by this principle of estoppel under this section. In Mangat Ram vs. Sardar Meharban Singh (1987) 4 SCC 319 this Court held: (SCC p.327, Para 11) “The estoppel contemplated by Section 116 is restricted to the denial of title at the commencement of the tenancy and by implication it follows that a tenant is not estopped from contending that the title of the lessor had since come to an end.” (Emphasis supplied) 15. Similarly in D. Satyanarayana vs. P. Jagadish, (1987) 4 SCC 424 also this Court holds in Para 4: (SCC p.428) “4. The rule of estoppel embodied under Section 116 of the Evidence Act is that, a tenant who has been let into possession cannot deny his landlord’s title, however defective it may be,.... Similarly, the estoppel under Section 116 of the Evidence Act is restricted to the denial of the title at the commencement of the tenancy.” (Emphasis supplied). 20. In J.J. Lal Private Limited & Others vs. M.R. Murali and Anr., (2002) 3 SCC 98 , the Hon’ble Supreme Court held as under:- “18. What amounts to denial of title, and whether such denial is bona fide or not, are the questions to be determined in the facts and circumstances of each case. 20. In J.J. Lal Private Limited & Others vs. M.R. Murali and Anr., (2002) 3 SCC 98 , the Hon’ble Supreme Court held as under:- “18. What amounts to denial of title, and whether such denial is bona fide or not, are the questions to be determined in the facts and circumstances of each case. As a general rule the vulnerability of denial of title by the tenant shall be tested by reference to the rule of estoppel contained in Section 116 of the Evidence Act which estops the tenant from denying the title of the landlord at the commencement of the tenancy and the estoppel continues to operate so long as the tenant does not surrender possession over the tenancy premises to the landlord who inducted him in possession. The tenant is not estopped from denying the title of the landlord if it comes to an end subsequent to the creation of the tenancy nor is he estopped from questioning the derivative title of a transferee of his landlord. However, the rule of estoppel contained in Section 116 of the Evidence Act is not exhaustive. To operate against the tenant as providing a ground for eviction under Section 10 of the Act, a mere denial of the title of the landlord is not enough; such denial has to be “not bona fide”. “Not bona fide” would mean absence of good faith or non-genuineness of the tenant’s plea. If denial of title by the tenant is an outcome of good faith or honesty or sincerity, and is intended only to project the facts without any intention of causing any harm to the landlord it may not be “not bona fide”. Therefore to answer the question whether an assertion of denial of the landlord’s title by the tenant was bona fide or not, all the surrounding circumstances under which the assertion was made shall have to be seen. The counter highlights the factum and contents of notice by the Municipal Corporation served on the tenant, reproduced in the earlier part of this judgment and the reaction of the tenants to the threat coupled with temptation held out by the Corporation. The counter highlights the factum and contents of notice by the Municipal Corporation served on the tenant, reproduced in the earlier part of this judgment and the reaction of the tenants to the threat coupled with temptation held out by the Corporation. This notice by the Municipal Corporation states the tenants having informed the Municipal Corporation that they were in possession of the premises; that they had agreed to pay to the Corporation the lease amount which was presumably in arrears on account of non-payment by their landlords (i.e. the respondents); that the Municipal Corporation threatened the tenancy premises being subjected to public auction if the arrears were not cleared. This notice is by reference to the letter dt. 26.3.1993 sent by the tenants to the Municipal Corporation which is not available on record. The landlords on whom lay the burden of proving availability of the ground of eviction took no steps for the production of this letter. The contents of the letter would have provided vital evidence relating to the nature and manner of denial of title by the tenants and the bona fides of denial could have been inferred. The High Court in its judgment has made a reference to “a series of attempts to deprive the landlords of their lawful rights” by the tenants. The High Court appears to have taken into consideration some other documents referable to some other litigation between the parties which documents, in our opinion, could not have been taken into consideration unless tendered in evidence and brought on record consistently with procedural law governing trial of civil cases. There is yet another error committed by the High Court. So far as the additional counter and contents of the notice by the Municipal Corporation to the tenants are concerned we do not think that a case of denial of title is made out. In any case it cannot be considered to be “not bona fide”. The tenants have stated that the ultimate owners of the property were the Municipal Corporation and they had agreed their willingness to pay rent to the Municipal Corporation under threat of eviction solely for the purpose of protecting their own possession over the premises. In any case it cannot be considered to be “not bona fide”. The tenants have stated that the ultimate owners of the property were the Municipal Corporation and they had agreed their willingness to pay rent to the Municipal Corporation under threat of eviction solely for the purpose of protecting their own possession over the premises. They have neither disowned the title of their own landlords at the inception of the tenancy nor have set up any title in themselves nor attorned in favour of the Municipal Corporation by voluntarily entering into direct tenancy with the Municipal Corporation bypassing their own landlords. We are, therefore, clearly of the opinion that no case of eviction on the ground of tenants’ denial of landlords’ title being “not bona fide” is made out. 19. For several reasons, we are of the opinion that a decree on the ground of denial of the landlord’s title by the tenant and such denial being not bona fide could not have been a ground for directing eviction of the tenants in the present case. Firstly, the application for eviction filed by the landlords do not plead such a cause of action, setting out material facts and as providing a ground for relief of eviction. The plea taken by the defendant-tenants in their additional counter does not by itself amount to denial of title so as to render them vulnerable to eviction by attracting applicability of Section 10(2)(vii) of the Act. The basic question was whether the landlords themselves treated the plea taken by the tenants in their additional counter as denial of their title and if that be so, the landlords should have amended their application for eviction incorporating the averment that the said additional counter amounted to denial of title of the landlords and such denial was not bona fide. Thereupon the tenants would have had an opportunity of explaining the facts and circumstances in which the additional counter, along with the pleas raised therein, came to be filed and if that amounted to denial of landlords’ title then how did they propose to justify such denial as bona fide. Such pleas could have been the subject-matter of trial and by expression of opinion by the Controller as to whether a ground for eviction was made out or not. Such pleas could have been the subject-matter of trial and by expression of opinion by the Controller as to whether a ground for eviction was made out or not. Before the Controller none of the parties were alive to the fact that alleged denial of title by the tenants could possibly be clicked by the landlords as a ground for eviction. The Appellate Authority for the first time formulated a point at issue touching this ground during the course of its decision and yet held in favour of the tenants holding that such denial was bona fide. If at all the Appellate Authority was inclined to frame an issue then it ought to have been tried on the lines laid down in Order 41 Rule 25 of the Code of Civil Procedure. The High Court, as already stated, shifted the emphasis and treated the denial of title by the tenants as primary ground for eviction and proceeded to decide the same. Thus what was not in issue before the trial Court at all became the core issue on which the High Court has founded its decision. This is not only violative of the established procedure for civil trials but also violative of the principles of justice and fair play. The tenants have been certainly prejudiced in their defence and, therefore, availability of that ground for eviction of the tenants in the present proceedings cannot be sustained.” 21. The learned counsel for the appellant, in support of his contentions, placed a strong reliance on the above judgment of the Hon’ble Supreme Court in J.J. Lal Private Limited & Others vs. M.R. Murali and Anr., (2002) 3 SCC 98 , that without making an amendment in the plaint by adding ground of denial of title and tenancy of plaintiff by defendant on the basis of pleading in the written-statement, no decree could have been passed on the ground of denial of title and tenancy and further that even if denial of title and tenancy is found to be proved the same was not bona-fide and, as such, the decree of eviction should not have been passed in the case. The Hon’ble Supreme Court in Para No.18 has observed that what amounts to denial of title is a question to be determined in the facts and circumstances of each case. The Hon’ble Supreme Court in Para No.18 has observed that what amounts to denial of title is a question to be determined in the facts and circumstances of each case. The facts of the case for consideration before the Hon’ble Supreme Court in J.J. Lal Private Limited’s case (Supra) were that suit premises were owned by Municipal Corporation of Chennai, and held by the landlords as allottee of the Municipal Corporation. The landlords further leased out the premises to the tenants (appellants before the Apex Court). Thus, there were three persons associated with the suit premises–first the Municipal Corporation, second their allottees (i.e. the respondents before the Apex Court) and third lessees inducted by the allottees i.e. the appellants before the Apex Court. The tenants in that case, in the additional counter, contended that the tenants had reliably learnt, on making enquiries from the Municipal Corporation of Madras, that long-term lease was granted by the Corporation in favour of late M.B. Ramachandra Naidu, who expired in the month of March 1982. With his death, the lease came to an end. Even the term of lease by the Municipal Corporation in favour of the landlords had expired and the Corporation had taken steps to create a lease directly in favour of the actual occupants and the respondents had agreed to pay the rent to the Municipal Corporation w.e.f. 01.04.1982 and onwards. The issue regarding denial of title was not framed nor the decree of eviction was passed by the Controller on the ground of denial of title. The appellate authority, for the first time, framed the point for decision as to whether the tenants were liable to be evicted due to their denial of appellants’ right over the property. However, the appellate authority, after considering the ground of eviction as enumerated in Section 10(2)(vii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, concluded that the denial of title of the landlord by the tenants was not bona-fide and dismissed the appeal filed by the landlord and confirmed the judgment of the Controller. The landlords preferred civil revision in the High Court and the High Court reversed the judgment of the Controller and the appellate authority, and passed a decree of eviction on the ground that denial of title of landlords by tenants was not bona-fide. The landlords preferred civil revision in the High Court and the High Court reversed the judgment of the Controller and the appellate authority, and passed a decree of eviction on the ground that denial of title of landlords by tenants was not bona-fide. The Hon’ble Supreme Court considered the catena of judgments on the point that in case defendant denies the title of the landlord in the written statement then a decree of eviction can be passed on that basis. In J.J. Lal Private Limited’s (supra), the Hon’ble Supreme Court considered its own decision in Majati Subbarao vs. P.V.K. Krishna Rao (1989) 4 SCC 732 , wherein the Supreme Court answered the contention of learned counsel for the tenant that the landlord had failed to apply for amendment of his plaint and incorporate the ground of denial of title therein, and held : “We agree that normally this would have been so but, in the present case, we find that the trial Court, namely, the Rent Controller, framed an issue as to whether the tenant’s denial of the landlord’s title to the schedule property including the said premises was bona fide. The parties went to trial on this clear issue and the appellant had full knowledge of the ground alleged against him. It was open to him to have objected to the framing of this issue on the ground that it was not alleged in the eviction petition that the appellant had denied the title of the respondent and that the denial of title was bona fide. If he had done that the respondent could have well applied for an amendment of the eviction petition to incorporate that ground. Having failed to raise that contention at that stage it is not open now to the appellant to say that the eviction decree could not be passed against him as the ground of denial of title was not pleaded in the eviction petition.” 22. The Hon’ble Apex Court in J.J. Lal Private Limited’s case (Supra) also considered its decision in Om Prakash Gupta vs. Ranbir B. Goyal, (2002) 2 SCC 256 and Firm Sriniwas Ram Kumar vs. Mahabir Prasad, AIR 1951 SC 177 , Hasmat Rai vs. Raghunath Prasad, (1981) 3 SCC 103 and Om Prakash vs. Ram Kumar, (1991) 1 SCC 441 , and held as under: “17. A plea taken by the defendant in the written statement can itself be made a ground for allowing relief of the plaintiff subject to well-known limitations. The plea taken in the written statement should by itself be enough as furnishing a ground for relief to the plaintiff, the plea taken by the defendant does not stand in need of any further pleadings being joined by the party; an issue is framed and put to trial unless the facts of the case show that the parties actually went to trial fully alive to the real issue between them and had an opportunity of adducing evidence, that is, to put it in other words, the parties know that the plea taken in the written statement too was the subject-matter of trial and could form the basis for relief to the plaintiff. In such case, though the pleadings may be lacking or there may be a failure to frame an issue or a specific issue, the applicability of the law laid down by this Court in Nagubai Ammal vs. B. Shama Rao ( AIR 1956 SC 593 ).” 23. The above extract of the judgment in J.J. Lal Private Limited’s case (Supra) shows that the Hon’ble Apex Court held that the plea taken by the defendant in the written-statement itself can be a ground of eviction of the defendant subject to well-known limitations. Therefore, this judgment does not help the present appellants in any manner whatsoever. The Hon’ble Apex Court, in J.J. Lal Private Limited’s case (Supra), in the peculiar facts and circumstances of that particular case, observed that the landlords should have amended their application for eviction incorporating therein the averments that the said additional counter amounted to denial of title of the landlords and such denial was not bona fide. 24. The Hon’ble Apex Court assigned the reasons for above observations that in that case none of the parties before the Controller were alive to the fact that alleged denial of title by the tenants could possibly be clicked by the landlords as a ground for eviction. 24. The Hon’ble Apex Court assigned the reasons for above observations that in that case none of the parties before the Controller were alive to the fact that alleged denial of title by the tenants could possibly be clicked by the landlords as a ground for eviction. The Appellate Authority for the first time formulated a point at issue touching this ground during the course of its decision, therefore, the Hon’ble Apex Court observed that in case the application for eviction could have been amended then tenants would have had an opportunity of explaining the facts and circumstances in which the additional counter, along with pleas raised therein, came to be filed and if that amounted to denial of landlord’s title then how they proposed to justify such denial as bona fide. 25. So far as present case is concerned, it is clear that the tenant-defendant-appellant filed his written-statement in the trial Court on 19.05.1980 wherein he denied the title and tenancy of Saubhagmal as well as landlord-plaintiff-respondent and thereafter the landlord-plaintiff-respondent filed an application in writing on 25.07.1980 contending therein that the defendant in his written-statement has denied the title and tenancy of plaintiff as well as Saubhagmal, and denial of title and tenancy is one of the grounds of eviction, therefore, this ground may also be included in the grounds of eviction and an issue may also be framed in this regard. The tenant-defendant-appellant did not file any reply to the above application filed by the landlord. The trial Court, vide its order dt. 21.08.1980 framed four Issues including Issue No.3 relating to denial of title and tenancy of the plaintiff by the defendant. 26. The Hon’ble Apex Court in Majati Subbarao’s case (Supra), which was considered in J.J. Lal Private Limited’s case (Supra), observed that the Rent Controller framed an issue as to whether the tenant’s denial of the landlord’s title to the schedule property including the said premises was bona fide. The parties went to trial on this clear issue and the appellant had full knowledge of the ground alleged against him. It was open to him to have objected to the framing of this issue on the ground that it was not alleged in the eviction petition and the appellant had denied the title of the respondent and that the denial of title was bona fide. It was open to him to have objected to the framing of this issue on the ground that it was not alleged in the eviction petition and the appellant had denied the title of the respondent and that the denial of title was bona fide. If he had done that, the respondent could have well applied for an amendment of the eviction petition to incorporate that ground. Having failed to raise that contention at that stage it is not open now to the appellant to say that the eviction decree could not be passed against him as the ground of denial of title was not pleaded in the eviction petition. 27. In these circumstances, the observation made in J.J. Lal Private Limited’s case (Supra) about amendment of the application for eviction is not applicable in the peculiar facts and circumstances of the present case and the principles laid down by the Hon’ble Apex Court in Majati Subbarao’s (Supra) are fully applicable. As, in the present case, Issue No.3 regarding denial of title and tenancy was framed on 21.8.1980 in the presence of counsel for defendant-tenant and no objection was raised by him that in absence of specific plea the Issue should not be framed. Had this objection been taken by him at that stage, the plaintiff could have amended its suit by incorporating necessary pleadings in this regard. It is also clear that the application in writing was filed by the landlord in the present case on 25.07.1980 to frame an Issue in respect of denial of title in view of denial by the defendant-tenant of title and tenancy of the plaintiff, in his written-statement. The application was not even contested as no reply was filed by the defendant to this application. 28. The another contention of the learned counsel for the appellant, which is based on the decision of Hon’ble the Supreme Court in J.J. Lal Private Limited’s case (Supra) that denial of title of landlord should be bona fide, is also not tenable in the facts and circumstances of the present case. The Hon’ble Apex Court was considering the definition of Section 10(2)(vii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, whereas the present case relates to Section 13(1)(f) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, which does not find the word ‘bona fide’. The Hon’ble Apex Court was considering the definition of Section 10(2)(vii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, whereas the present case relates to Section 13(1)(f) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, which does not find the word ‘bona fide’. Section 10(2)(vii) of the Tamil Nadu Buildings (Lease and Rent Control) Act, 1960, which has been reproduced in Para 9 of J.J. Lal Private Limited’s case (Supra), reads as under: “10. Eviction of tenants.- ... (2) A landlord who seeks to evict his tenant shall apply to the Controller for a direction in that behalf. If the Controller, after giving the tenant a reasonable opportunity of showing cause against the application, is satisfied - ... (vii) that the tenant has denied the title of the landlord or claimed a right of permanent tenancy and that such denial or claim was not bona fide, the Controller shall make an order directing the tenant to put the landlord in possession of the building and if the Controller is not so satisfied, he shall make an order rejecting the application: Provided that in any case falling under clause (i) if the Controller is satisfied that the tenant’s default to pay or tender rent was not willful, he may, notwithstanding anything contained in Section 11, give the tenant a reasonable time, not exceeding fifteen days, to pay or tender the rent due by him to the landlord up to the date of such payment or tender and on such payment or tender, the application shall be rejected.” 29. For ready reference, Section 13(1)(f) of the Act of 1950 is also reproduced as under: “13. Eviction of tenants:- (1) Notwithstanding anything contained in any law or contract, no Court shall pass any decree, make any order, in favour of landlord, whether in execution of a decree or otherwise, evicting the tenant so long as he is ready and willing to pay rent therefor to the full extend allowable by this Act, unless it is satisfied– …………… (f) that the tenant has renounced his character as such or denied the title of the landlord and the latter has not waived his right or condoned the conduct of the tenant; or” 30. The provisions of the aforesaid Acts applicable in the State of Tamil Nadu and Rajasthan, enumerating the grounds of eviction of tenants, are altogether different and the language thereof cannot be said to be pari-meteria, therefore, I do not find any force in the contention of the learned counsel for the appellants in this regard also. 31. In Mirkhan Nathekhan vs. Kutab Ali Tayab Ali, 1979 (1) R.C. 508, a Division Bench of the M.P. High Court held as under: “8. It is now settled law that the doctrine of estoppel under Section 106 of the Evidence Act applies where the tenant has been let into possession by the landlord. But where the landlord himself did not induct the tenant into property but claims his position under a derivative title, such as assignee, donee, lessee, heir etc. here is no estoppel against tenant. So a tenant already in possession is entitled to show that the plaintiff does not possess the derivative title he claims, but it is in some other person. The Privy Council in Krishna Prasad vs. B.C. Cancern, AIR 1937 P.C. 251, has held: “The principle does not apply to disentitle a tenant to dispute the derivative title of one who claims to have since become entitled to the reversion, though in such cases there may be other grounds of estoppel, e.g., by attornment, acceptance of rent etc.” In the present case, it has been found that the transfer in favour of the plaintiff was bogus and sham and no title passed, the defendant neither attorned the tenancy nor paid any rent. Therefore, the defendant was entitled to challenge the derivative title of the plaintiff. For challenging plaintiff derivative title the defendant does not come within the mischief of Section 12 (1) (c) of the Act. It has been held by a Division Bench of this Court in Pandit Ramjilal vs. Vijai Kumar, 1970 Rent Control Reporter 116 : 1970 MPLJ 50 , that finally the contention that the defendant No.4 denies the title of his landlord is a principle which applies only to a suit brought by the landlord against his tenant whom he had inducted in possession of the demised premises. It is of no avail to the tenant when the real owner of those premises brings a suit for possession against the landlord as well as his tenant. It is of no avail to the tenant when the real owner of those premises brings a suit for possession against the landlord as well as his tenant. Therefore, the Additional District Judge was justified in holding that the plaintiff cannot be evicted under Section 12 (1) (c) for denying the derivative title of the plaintiff.” 32. The facts in Mirkhan Nathekhan’s case (Supra) were that one Maryambai, owner of the suit house, filed a suit for eviction against tenant twice, but both the times her suit was dismissed. The appeals so preferred were also dismissed. Later on, she executed a registered sale-deed in favour of her nephew Kutab Ali-the plaintiff in the case, who was living with her and also looking after the business of her husband Fakhruddin, who was dead. The defendant-tenant, in his reply, pleaded that the sale-deed in favour of plaintiff Kutab Ali is not genuine and brought into existence for the purpose of evicting him from the suit house. Plaintiff Kutab Ali filed a suit for eviction on the ground of disclaimer of his title and bona fide need for his residence. The trial Court as well as the first appellate Court, both, dismissed the suit by holding that the sale-deed in favour of the plaintiff is genuine, but it was brought about with mala fide intention only for the purpose of filing the suit for eviction against the defendant and no effect can be given to it. Being aggrieved with the same, the tenant filed second appeal before the Single Bench of the M.P. High Court, and the learned Single Judge held that the question of oblique motive behind execution of sale-deed executed in favour of the plaintiff is wholly immaterial and, in view of the finding of Courts below that sale-deed is genuine, came to a conclusion that disclaimer of title of the plaintiff in the case is proved and consequently passed a decree of eviction. Hence, the tenant filed letter-patent-appeal before the Division Bench of the M.P. High Court. The main question to be considered by the Division Bench was whether the learned Single Judge was justified in reversing the findings of the Courts below by interfering with the finding of facts. Hence, the tenant filed letter-patent-appeal before the Division Bench of the M.P. High Court. The main question to be considered by the Division Bench was whether the learned Single Judge was justified in reversing the findings of the Courts below by interfering with the finding of facts. The Division Bench observed that the fact-finding- Court, i.e. the appellate Court, came to a conclusion that the sale-deed in favour of the plaintiff was bogus, sham and colourable document and brought into being with the purpose of evicting the defendant from the suit house. This was a finding of fact and was binding on the learned Single Judge in the second appeal. The Division Bench relied upon the decision of the Hon’ble Supreme Court in the case of Durga vs. Jawahir Singh, 17?I.A. 122, wherein the Privy Council held that there is no jurisdiction to entertain a second appeal on the ground of erroneous finding of fact, however gross the error may seem to be. In another case of Wali Muhammad vs. Muhammad Baksh, AIR 1930 P.C. 91, the Privy Council held ‘nor does the fact that the finding of the first appellate Court is based upon some documentary evidence make it any the less a finding of fact’. Further in D. Pattabhiramaswamy vs. S. Hanymayya, AIR 1959 S.C. 57 , the Hon’ble Supreme Court held that there is no jurisdiction to entertain the second appeal on the ground of erroneous finding of fact, however gross the error may seem to be. A judge of the High Court has, therefore, no jurisdiction to interfere in second appeal with the findings of fact given by the first appellate Court based upon an appreciation of the relevant evidence. The Division Bench of M.P. High Court, in the case, considered the old Section 100 of the CPC, which has now been amended in 1976, and after its amendment a second appeal under Section 100 CPC is confined only to the cases wherein question of law is involved and such question must be a substantial one. The Division Bench of the M.P. High Court was of the view that the above referred finding about bogus and sham sale-deed was a finding of fact and thus the same could not have been interfered with by the learned Single Judge while dealing with second appeal under Sec. 100 CPC. 33. The Division Bench of the M.P. High Court was of the view that the above referred finding about bogus and sham sale-deed was a finding of fact and thus the same could not have been interfered with by the learned Single Judge while dealing with second appeal under Sec. 100 CPC. 33. The facts of the present case are absolutely distinguishable from the facts of the case dealt with by the Division Bench of the M.P. High Court in Mirkhan Nathekhan’s case (Supra). In case the ratio of the decision of the Division Bench of the M.P. High Court is applied in the present case then it does not help the appellants, but it goes against them for the obvious reason that in the present case both the Courts below have found the rent-note-agreement dt. 12.07.1978 executed by defendant as well as gift-deed dt. 26.11.1979 executed by Saubhagmal in favour of the plaintiff, to be genuine and proved and, according to the Division Bench of the M.P. High Court, both the Issues i.e. Issues No.1 and 2 in the present case, are relating to question of facts and there is concurrent finding of facts recorded by both the Courts below in favour of the plaintiff-landlord and, according to the judgment of the Division Bench of the M.P. High Court, the said finding is not open to be interfered with in second appeal under Section 100 of the Code of Civil Procedure. 34. In Shiv Narain vs. Bal Kishan, 1979 (1) R.C.R. 626, a Single Bench of this Court considered provisions of Section 111 (g) of the Transfer of Property Act with regard to Section 13 (1)(f) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950, and held as under:- “11. In that case, the question involved was with regard to the construction of the Managing Agency Agreement and their Lordships of the Supreme Court held that the construction of the Managing Agency Agreement was not only one of law but also it was neither simple nor free from doubt, and, therefore the High Court was in error in refusing to grant the appellant a certificate under Article 133 (1)(a) that the appeal involved a substantial question of law. A question of law is substantial as between the parties if the decision turns one way or another on the particular view taken of the law. A question of law is substantial as between the parties if the decision turns one way or another on the particular view taken of the law. I may add here that the phrase ‘substantial question of law’ used in Section 100 C.P.C. should be given wider construction than what was attributed to it under Section 110 (old) of the C.P.C. The expression ‘substantial question of law’ has been used in proviso to Section 30(1) of the Workmen’s Compensation Act, 1923 and so also in Section 7(1)(a) of the Industrial Disputes (Appellate Tribunal) Act, 1950. The Allahabad High Court in Upper Ganges Electric Employees Union vs. Upper Ganges Valley Electricity Supply Co. Ltd. and Anr., AIR 1956 All. 491 , took the view that the phrase ‘substantial question of law’ in Section 7(1)(a) of the Industrial Disputes (Appellate Tribunal) Act, 1950 must not be given the same meaning as in Section 110 (old) C.P.C. In Jwali and others vs. Babu Lal and another– AIR 1958 All. 564 , while interpreting the phrase ‘substantial question of law’ as used in the first proviso to sub-section (1) of Setion 30 of the Workmen’s Compensation Act, it was held that the phrase must be given a wider construction than what is attributed to it under Section 110 (old) C.P.C., namely that it would not cover cases of applicability of well-settled principles of law to a particular set of facts. The Orissa High Court in Central Engineering Corporation vs. Dorai Raj, AIR 1960 Orissa 39 held that for the purpose of Section 30 of the Workmen’s Compensation Act, 1923 should be construed to cover even a case in which the Commission has clearly misdirected himself on question of law. In my opinion, whether the averments made in Para 2 of the Additional pleas of the written-statement amount to a denial of the title of the landlord within the meaning of Section 13 (1)(f) of the Act is debatable and is not free from difficulty. In view of the authorities cited at the bar, the question arising in this appeal, appears to me to be a substantial question of law. In view of the authorities cited at the bar, the question arising in this appeal, appears to me to be a substantial question of law. The construction of the averments made in Para 2 of the additional pleas of the written statement Ex.7 undoubtedly raises a substantial question of law and for the aforesaid reasons, the contention of the learned counsel for the plaintiff that the finding of the lower appellate Court that the appellant has denied the title of the landlord is a pure question of fact is devoid of force. Bhura’s case ( AIR 1976 Raj 249 ) is of no avail to the respondent.” 35. In Raja Mohammad Amir Ahmad Khan vs. Municipal Board of Sitapur and Another, AIR 1965 SC 1923 , the Hon’ble Apex Court held that the principles embodied in Section 111 (g) of the T.P. Act are equally applicable to tenancies to which the T.P. Act does not apply, because they are in consonance with justice, equity and good conscience. 36. In Ram Saran Sharma vs. Smt. Kamla Acharya, 2001 (2) RLR 136, this Court held that Section 109 of the Transfer of Property Act does not require service of notice on tenant, on alienation of property, to create relationship of landlord and tenant between transferee landlord and existing tenant. Once title of assignee is complete, the attornment is automatic and not dependent on tenant’s attorning or agreeing to the attornment. This Court held as under: “17. As regards the law of attornment, envisaged under Section 109 of the Act of 1882, it is held that Section 109 of the said Act does not require service of notice on the tenant, on alienation of property, to create relationship of landlord and tenant between the transferee landlord and the existing tenant. The transferee of the lessor steps into the shoes and possess all the rights, which the transferor has and the attornment is not a condition precedent, to give validity to the transfer made in favour of the transferee. Section 8 of the Act of 1882 specifically provides that a transfer of property passes forthwith, to the transferee, all the interests, which the transferor is capable of passing in the property, including the legal incidents thereof and such incidents include the rents and profits thereof. Section 8 of the Act of 1882 specifically provides that a transfer of property passes forthwith, to the transferee, all the interests, which the transferor is capable of passing in the property, including the legal incidents thereof and such incidents include the rents and profits thereof. Once the title of the assignee is complete, the attornment is automatic not dependent on the tenant’s attorning or agreeing to the attornment. An identical question came up for consideration in case of Mahendra Raghunath Das’s case (JT 1997 (5) SC 363), wherein, it is ruled by the Supreme Court, which reads thus: “It is well settled that a transferee of a landlord’s rights steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. The Section does not require that the transfer of the right of the landlord could take effect only if the tenant attorns to him. Attornment by tenant is not necessary to confer the validity of the transfer of the landlord.” 18. The aforesaid question also came up for consideration, before me, in case of Mohd. Hussain vs. Yakoob, reported in 1997 (2) RCR 443, wherein, it is ruled that tenant has no legal justification to question oral gift. Giving notice to tenant by landlords regarding change in ownership is a mere technicality. It was held in the aforesaid case that question of title is foreign, in a suit for eviction by landlord against tenant, but in abundant caution, where such issues are found to be necessary, it can be raised incidentally. It was held that because the transferee is clothed with right to recover rent and eject lessee, no payment of rent or attornment to lessor is necessary. The decision cited by the learned counsel for the landlord plaintiff respondent, mentioned hereinabove, indicates towards the aforesaid conclusion. Thus, the question of attornment by landlord, is no more res integra.” 37. So far as the next submissions of the learned counsel for the appellants about existence of relationship of landlord and tenant on alienation of property is concerned, I would like to refer the provisions of Sections 8 and 109 of the Transfer of Property Act, 1882 and Section 116 of the Evidence Act, 1872. These Sections read as under: “8. So far as the next submissions of the learned counsel for the appellants about existence of relationship of landlord and tenant on alienation of property is concerned, I would like to refer the provisions of Sections 8 and 109 of the Transfer of Property Act, 1882 and Section 116 of the Evidence Act, 1872. These Sections read as under: “8. Operation of transfer.- Unless a different intention is expressed or necessarily implied, a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof.” “109. Rights of lessor’s transferee.- If the lessor transfers the property leased, or any part thereof, or any part of his interest therein, the transferee, in the absence of a contract to the contrary, shall possess all the rights, and, if the lessee so elects, be subject to all the liabilities of the lessor as to the property or part transferred so long as he is the owner of it; but the lessor shall not, by reason only of such transfer cease to be subject to any of the liabilities imposed upon him by the lease, unless the lessee elects to treat the transferee as the person liable to him: Provided that the transferee is not entitled to arrears of rent due before the transfer, and that, if the lessee, not having reason to believe that such transfer has been made, pay rent to the lessor, the lessee shall not be liable to pay such rent over again to the transferee. The lessor, the transferee and the lessee may determine what proportion of the premium of rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.” “116. The lessor, the transferee and the lessee may determine what proportion of the premium of rent reserved by the lease is payable in respect of the part so transferred, and, in case they disagree, such determination may be made by any Court having jurisdiction to entertain a suit for the possession of the property leased.” “116. Estoppel of tenant; and of licensee of person in possession.- No tenant of immovable property, or person claiming through such tenant, shall, during the continuance of the tenancy, be permitted to deny that the landlord of such tenant had, at the beginning of the tenancy, a title to such immovable property; and no person who came upon any immovable property by the licence of the person in possession thereof, shall be permitted to deny that such person had a title to such possession at the time when such licence was given.” 38. The above quoted provisions make it clear that attornment by a tenant is not a condition precedent to create a relationship of landlord and tenant between the transferee landlord and the existing tenant, and to give validity to the transfer. Section 109 of the Transfer of Property Act, 1882 does not require service of notice on the tenant, on alienation of property, to create relationship of landlord and tenant between transferee landlord and the existing tenant. Section 8 of the Transfer of Property Act specifically provides that a transfer of property passes forthwith to the transferee all the interest which the transferor is then capable of passing in the property and in the legal incidents thereof. Such incidents include the rents and profits thereof. Once the title of assignee is complete, the attornment is automatic, not dependent upon tenant’s attorning or agreeing to the attornment. This Court has already considered the question relating to relationship of landlord and tenant on transfer/alienation of rented premises in the light of Sections 8 and 109 of the Transfer of Property Act, 1882, in the cases of Mohd. Hussain vs. Yakoob, reported in 1997 (2) RCR 443, and Ram Saran Sharma vs. Smt. Kamla Acharya, 2001 (2) RLR 136. This Court in Ram Saran Sharma’s case (Supra) has also considered the judgment of the Hon’ble Supreme Court in the case of, Mahendra Raghunath Das vs. V. Bikaji–reported in JT 1997 (5) SC 363, and held as under : “17. This Court in Ram Saran Sharma’s case (Supra) has also considered the judgment of the Hon’ble Supreme Court in the case of, Mahendra Raghunath Das vs. V. Bikaji–reported in JT 1997 (5) SC 363, and held as under : “17. As regards the law of attornment, envisaged under Section 109 of the Act of 1882, it is held that Section 109 of the said Act does not require service of notice on the tenant, on alienation of property, to create relationship of landlord and tenant between the transferee landlord and the existing tenant. The transferee of the lessor steps into the shoes and possess all the rights, which the transferor has and the attornment is not a condition precedent, to give validity to the transfer made in favour of the transferee. Section 8 of the Act of 1882 specifically provides that a transfer of property passes forthwith, to the transferee, all the interests, which the transferor is capable of passing in the property, including the legal incidents thereof and such incidents include the rents and profits thereof. Once the title of the assignee is complete, the attornment is automatic not dependent on the tenant’s attorning or agreeing to the attornment. An identical question came up for consideration in case of Mahendra Raghunath Das’s case (JT 1997 (5) SC 363), wherein, it is ruled by the Supreme Court, which reads thus: “It is well settled that a transferee of a landlord’s rights steps into the shoes of the landlord with all the rights and liabilities of the transferor landlord in respect of the subsisting tenancy. The Section does not require that the transfer of the right of the landlord could take effect only if the tenant attorns to him. Attornment by tenant is not necessary to confer the validity of the transfer of the landlord.” 18. The aforesaid question also came up for consideration, before me, in case of Mohd. Hussain vs. Yakoob, reported in 1997 (2) RCR 443, wherein, it is ruled that tenant has no legal justification to question oral gift. Giving notice to tenant by landlords regarding change in ownership is a mere technicality. It was held in the aforesaid case that question of title is foreign, in a suit for eviction by landlord against tenant, but in abundant caution, where such issues are found to be necessary, it can be raised incidentally. Giving notice to tenant by landlords regarding change in ownership is a mere technicality. It was held in the aforesaid case that question of title is foreign, in a suit for eviction by landlord against tenant, but in abundant caution, where such issues are found to be necessary, it can be raised incidentally. It was held that because the transferee is clothed with right to recover rent and eject lessee, no payment of rent or attornment to lessor is necessary. The decision cited by the learned counsel for the landlord plaintiff respondent, mentioned hereinabove, indicates towards the aforesaid conclusion. Thus, the question of attornment by landlord, is no more res integra.” 5. In cases where permission has been granted in violation of existing bye-laws and the construction so far is in violation of approved building plan, the owner/user will be required to apply for construction permission as per existing building bye-laws within a period of one month and construction permission shall be revised and further construction will be done as per revised approved building plan. The construction done in violation of bye-laws should be demolished. 7.3 For construction of high-rise (multi-storey) buildings in future : The future norms should adopt a holistic town planning approach which must be based on parameters like population density, building density, traffic density, availability of parking space, pollution levels, availability of basic civic infrastructure etc. The norms should be such that they promote vertical expansion of Jodhpur city but at the same time prevents overcrowding in the already congested areas. 7.3.1 Building regulations and norms : 1. Specific provision of Urban Improvement Trust, Jodhpur (Urban Area, Building) Regulation 2001 are in force for Jodhpur urban area. The same are being followed by Nagar Nigam also as per their agreement dt. 17.07.2000 with U.I.T. The same should continue. However Nagar Nigam should take necessary action for approval of the above rules by State Govt. expeditiously. 2. For compounding, U.I.T. is following Building Construction Compounding Resolution dt. 15.07.1997. Nagar Nigam should follow the same guidelines. However, State Govt. may consider framing Model Compounding Rules for adoption by all U.I.T.’s and Municipal Bodies. 3. The following modifications in Urban Improvement Trust, Jodhpur (Urban Area, Building) Regulation 2001 are proposed :- zAll high rise (multi-storeyed) building may be permitted on roads having minimum width of 18 mtrs. At present the above buildings are permitted on roads 12 mtrs. wide. may consider framing Model Compounding Rules for adoption by all U.I.T.’s and Municipal Bodies. 3. The following modifications in Urban Improvement Trust, Jodhpur (Urban Area, Building) Regulation 2001 are proposed :- zAll high rise (multi-storeyed) building may be permitted on roads having minimum width of 18 mtrs. At present the above buildings are permitted on roads 12 mtrs. wide. zAll high rise (multi-storeyed) buildings may be permitted on land of minimum 1000 sq. mtrs. area. At present the same are permitted on minimum 750 sq. mtrs. land area. zNo deviations from building plans approved as per building bye-laws may be permitted and no compounding should be done. zConcerned agencies may be permitted to provide permanent connections of water, electricity, sewerage, telephone etc. only after issue of completion certificate as per rules by concerned local body. 7.3.2. Identification of zones : It has been observed that permitting high rise (multi-storey) buildings throughout Jodhpur Urban area is not desirable. Permission for high rise building (multi-storeyed) should be granted after considering the carrying capacity of the existing infrastructural facilities viz; roads, sewerage, drainage, water, electricity, sanitation, etc. Other considerations should be parking space, fire safety, traffic density, green belts, heritage areas, proximity to aerodrome and defence establishments etc. For example, construction of high rise building in Parkota area of Jodhpur city will aggravate the traffic problem therein. Construction of high rise buildings in natural scenic areas, within heritage precincts and is surroundings of heritage areas the quality of such areas. Following zones have been tentatively identified where high rise (multi-storey) building shall not be permitted : zCity wall zone which includes area within city wall and near all city gates. Keeping in view the rising ground water level in walled city area, construction of basements shall also not be allowed in this zone. zZone notified as no construction zone by Ministry of Defence near Airforce and Aerodrome area. zSardarpura zone comprising of ‘A’ & ‘B’ main roads and 1st to 12th ‘A’, ‘B’, ‘C’, & ‘D’ roads. Other zones may be identified as and when required. 7.3.3 Procedural changes : Procedure for grant of construction permission : It has been observed that the procedure for granting construction permission requires improvement. zSardarpura zone comprising of ‘A’ & ‘B’ main roads and 1st to 12th ‘A’, ‘B’, ‘C’, & ‘D’ roads. Other zones may be identified as and when required. 7.3.3 Procedural changes : Procedure for grant of construction permission : It has been observed that the procedure for granting construction permission requires improvement. The committee recommends that building permission should be granted after technical clearance by a Technical Committee comprising of Secretary U.I.T./C.E.O. Nagar Nigam as Chairperson and Head of Town Planing Wing of U.I.T./Nagar Nigam as Member Secretary. Other members should include Head of Technical Wing of U.I.T./Nagar Nigam, Superintending Engineer, PHED and JDVVNL and Police Officer in charge of Traffic of Jodhpur City. The above Technical Committee will assist the Building plan Approval Committee of concerned local body and the case should be presented before the Building plan Approval Committee only after clearance by the above Technical Committee. Procedure for monitoring of ongoing construction : a. After approval of above Building Plan Approval Committee, construction permission for only upto ground floor level will be released to the applicant. Upon being informed by the applicant regarding construction upto ground floor level being ready by inspection, the same will be inspected by the concerned technical officer who will certify that the construction carried out so far is as per approved plans. Only thereafter, the remaining floor plans will be released to the applicant for further construction. b. Upon completion of the building, the owner will submit a declaration to the concerned local body informing regarding completion of the building and certifying its structural, earthquake, earthquake, fire electrical, etc. safety and sufficiency of vehicle parking areas. The above declaration will be the basis for issue of Occupancy Certificate. c. The owner shall be required to deposit a security amount varying from Rs.5.00 lacs to Rs.20.00 lacs depending upon the size of the plot, at the time of issuing of building permission for ensuring compliance of following :- i. Construction of Rain Water Harvesting Structure. ii.Provision for fire and earthquake safety as per National Building Code stipulations. iii. Availability of greenery and plantation as per rules. iv.Provision of parking as per Building bye-laws. 7.3.4 Identification of Parking Spaces : The committee also recommends that the city should have enough number of basement parking as well as multi-layered parking. CEO, Nagar Nigam and Secretary, U.I.T. will identify the sites fit for such parking locations. iii. Availability of greenery and plantation as per rules. iv.Provision of parking as per Building bye-laws. 7.3.4 Identification of Parking Spaces : The committee also recommends that the city should have enough number of basement parking as well as multi-layered parking. CEO, Nagar Nigam and Secretary, U.I.T. will identify the sites fit for such parking locations. 7.3.5 Strengthening of Sewerage System of Jodhpur City : Nagar Nigam and UIT should prepare sewerage system project and submit to the concerned authority. The project should have provision for strengthening of existing sewerage system as well as inclusion of left out areas. 7.3.6 Responsibility of Nagar Nigam and Urban Improvement Trust, Jodhpur : Implementation of recommendations of this committee and directions of Hon’ble High Court thereupon for execution of the same would be the responsibility of Nagar Nigam & U.I.T. 8.0 Conclusion : Construction of high rise buildings which add to the urban quality of any city is related to several aspects which have been not available to Jodhpur city. Building bye-laws covering essential building parameters first came in force only on 15.07.1997. Even the existing building bye-laws now require improvements. Technical manpower for proper examination of building plans as well as for ensuring execution as per approved building plans at site has been highly insufficient in Nagar Nigam as well as U.I.T. Enforcement Wings of Nagar Nigam and U.I.T. Also need to be strengthened. There is a serious requirement for increase in public awareness on issues related to planned Urban growth Urban infrastructure requires major augmentation.” 29. We are not proceeding further with the matter of high rise buildings, as the order of this Court with respect to multi storeyed building has been stayed by the Apex Court on a Special Leave to Appeal filed by the Vaibhav Enterprises. A copy of the order of the Apex Court dt. 13.10.2006 passed in D.B. Civil Misc. Application No. 1967/2006 has been placed on record. In view of the interim order of the Apex Court, nothing is further required to be done in the matter. TRAFFIC-OUTSIDE RAILWAY STATION : 30. Having noticed the traffic mismanagement outside the Railway Station, a notice was given to the Railway Administration as well. The Railway Administration was directed to depute some officer to attend the meeting of the Traffic Management Committee. TRAFFIC-OUTSIDE RAILWAY STATION : 30. Having noticed the traffic mismanagement outside the Railway Station, a notice was given to the Railway Administration as well. The Railway Administration was directed to depute some officer to attend the meeting of the Traffic Management Committee. It appears that the Committee headed by the Divisional Commissioner apprised the officer concerned of the Railway Administration about the traffic congestion outside the Railway Station. The Railway Administration filed an affidavit stating that the entire problem was examined by the Committee constituted by the appropriate authority. A second gate has been provided on the other side of the Railway Station to reduce the congestion. On making the second gate operational, the congestion had been reduced to a great extent on the main gate. As regards the chaos around the main entrance of the Railway Station caused by unruly parking of the auto rickshaws and other vehicles on the main road, a plan has been placed before us. It was also pointed out that the Railway Administration has provided separate and adequate parking lots for Army vehicles, Govt. vehicles, private cars, Auto richshaws and car taxis. It was pointed out that circulating area outside the Station can be further improved if the STD Booth known as “Hello Hut” is got vacated. It was pointed out that a dispute in that regard is pending in the Civil Court. An attempt was made to bring some sort of conciliation between the Railway Administration and the party but unfortunately, the same did not succeed. Suffice it to say that we are satisfied that the Railway Administration has taken effective steps for managing the traffic outside the Railway Station. The file concerning “Hello Hut” be returned to the concerned Court forthwith. REMOVAL OF ENCROACHMENTS : 31. It was reported that one of the major reasons of congestion on the main road is encroachment by the shop keepers or by local vendors more particularly on Nai Sarak, Station Road, Sojati Gate, Jalori Gate, Sardarpura ‘B’ Road and Chopasni Road. Thus, the concerned authorities were directed to remove encroachments from the said area. This Court by order dt. 02.03.2001, re-emphasized for removing the encroachments on the main roads from Mahamandir to Akhaliya Choraya, Pratap Nagar to Chopasni Road upto first Puliya, Nai Sarak, Sardarpura ‘B’ Road and main markets inside the old walled City. Thus, the concerned authorities were directed to remove encroachments from the said area. This Court by order dt. 02.03.2001, re-emphasized for removing the encroachments on the main roads from Mahamandir to Akhaliya Choraya, Pratap Nagar to Chopasni Road upto first Puliya, Nai Sarak, Sardarpura ‘B’ Road and main markets inside the old walled City. It was explained that the removal of encroachments will include the verandahs as well. It was also reported that in Khanda Falsa and Kabootron ka Chowk towards Gandhi Chowk and punglpada, there is a big milk market. Large number of milkmen with drums and vehicles collect on the roads and cause lot of harassment and difficulty both for the pedestrians as well as vehicles passing through. It was also reported that inhabitants of the area have encroached the public land by construction of Chabutaries. The narrow space left out was largely covered by big milk drums on both the sides of the motor vehicles practically blocking the entire road. The concerned authorities were directed to remove the encroachments from the said area. During the encroachment proceedings, some difficulties of the shop keepers were pointed out. Thus, a clarification was given that the shop keepers may be permitted to construct the steps oustside the shops as per the specification provided by the Corporation/U.I.T. The specification was approved by this Court. It was further noticed that a major cause of mushroom growth was the inaction on the part of the Administration. To curb the evil, this Court directed to divide the City in four zones and put each zone under the vigil of a responsible officer with a duty to ensure that there is no re-growth of encroachment. Certain officers were directed to file an affidavit quarterly before this Court certifying to the effect that in his area, there is no encroachment on footpath and pavements. It was further directed that re-encroachments in any area assigned to an officer shall be visited with a penalty after a departmental enquiry. The U.I.T. and the Municipal Corporation have filed the compliance reports as to the removal of encroachments as per the directions of this Court. The biggest achievement was the liberation of Akhaliya Choraya from the long time encroachments. The U.I.T. also submitted a design for developing a new market in Akhaliya Choraya. The U.I.T. and the Municipal Corporation have filed the compliance reports as to the removal of encroachments as per the directions of this Court. The biggest achievement was the liberation of Akhaliya Choraya from the long time encroachments. The U.I.T. also submitted a design for developing a new market in Akhaliya Choraya. Another affidavit was filed stating that all the verandahs on the Nai Sarak have been cleared from encroachments and the same has been made available for the smooth movement of the pedestrians. We are satisfied with the exemplary work done on the Akhaliya Choraya and Verandahs on the Nai Sarak. SHIFTING OF ELECTRIC POLES, TRASFORMERS & HORDINGS : 32. It was noticed that at various places, the electricity poles and transformers were creating problem in the City. The directions were complied with. It was submitted that 471 poles have been shifted. At various places, the transformers and hoardings have been shifted. SHIFTING OF PUBLIC BUILDINGS IN ORDER TO REDUCE THE CONGESTION FROM THE HIGHT COURT ROAD : 33. This Court by order dt. 21.11.2000 also directed the State Government to explore the feasibility of shifting of main offices and Courts including the High Court to reduce the pressure on the existing main route. This part of the direction was not taken seriously by the State authorities, as such, a further direction was given by the order dt. 03.08.2001. The order runs in about 11 pages. We do not consider it necessary to refer the entire order. The operative part of the order reads as follows : “Consequently, we direct the State Government to take up the matter of construction of a new High Court Building at Jodhpur on top priority. A copy of this order shall be delivered to the Chief Secretary and Law Secretary to the Govt. of Rajasthan latest by 07.08.2001. The Chief Secretary to the Govt. of Rajasthan is directed to take up the matter at the appropriate higher level before the State Government as well as the Central Government. The Chief Secretary will submit a compliance report by filing an affidavit on or before 10.09.2001.” 34. In compliance of the order of this Court dt. 03.08.2001, Mr. Inderjeet Khanna, the then Chief Secretary, State of Rajasthan, filed an affidavit expressing willingness on the part of the State Government for construction of new building of the High Court. The order dt. In compliance of the order of this Court dt. 03.08.2001, Mr. Inderjeet Khanna, the then Chief Secretary, State of Rajasthan, filed an affidavit expressing willingness on the part of the State Government for construction of new building of the High Court. The order dt. 25.09.2001 which runs in about 12 pages, is not required to be referred in detail. Another order in this regard was passed on 14.02.2002. Another detailed order was passed on 15.04.2002. At this stage, a reporting appeared in one of the regional newspapers about the traffic management in the High Court building itself. Thus, certain directions were given to the District Administration in that regard. Suffice it to say that the directions and compliance reports have been noticed in the order dt. 15.04.2002, which are extracted as follows : DIRECTIONSCOMPLIANCE 35. The State Government took up the issue seriously and asked the High Court to select the site. We are happy to record that issue has been taken seriously by the State as well as by the High Court and the land has been allotted. The other necessary formalities are complete. We hope that shifting of the High Court Building would definitely reduce the traffic congestion on the High Court Road to a great extent. CITY ROADS: 36. It is informed that total length of roads of City of Jodhpur is 142.55 kms, out of which three National Highways i.e. NH-65 Nagaur-Jodhpur, NH-112 Barmer-Bilara-Jodhpur-Balotra-Barmer and NH 114 Jodhpur-Pokaran passes. Total length of the National Highways passing through the City of Jodhpur comes to around 54.00 kms. It is reported that almost on all the National Highways, the patch work has been done. It is reported by the National Highway Authorities that some part of the roads of National Highways is damaged due to continuous overflow of sewerage lines and occasional leakage of water of supply lines, which are required to be repaired by the Public Works Department. The substantial part of the roads is maintained by the P.W.D. The Municipal Area has been divided in three parts viz; City Area, Sardarpura Area and Soorsagar Area, the substantial roads of the City are maintained by the Urban Improvement Trust. In the Chopasni Housing Board Area and Madhuban Colony, there are about 39 roads. So at one stage, it was reported that repairing of all the roads has been completed. In the Chopasni Housing Board Area and Madhuban Colony, there are about 39 roads. So at one stage, it was reported that repairing of all the roads has been completed. It is reported that the repairing/patching work has not yielded the requisite relief. SOLID WASTE MANAGEMENT : 37. This Court by order dt. 02.03.2001 gave direction with respect to technology adopted for storage, collection, transportation and disposal of waste. Further directions were given for submitting a plan for conversion of organic waste/biodegradable waste into Bio Organic Fertilizer (Compost) etc. A compliance report in this regard has been submitted in this regard recently on 29.11.2006. The Municipal Corporation has taken effective steps and established a Solid Waste Treatment Plant at Keru. The plant is yet to start functioning. Details have been furnished to us as to the improvement made in the matter of lifting of waste, its route chart, time and date schedule etc. It is stated that big collection centres have been earmarked at different places. Green waste of hotels shall be directly taken to the Keru plant. It is stated that Nagar Nigam will make the Robot machine fully functional by the end of this month. It is also stated that awareness Camps regarding the garbage and their disposal will be organized from time to time. SEWERAGE : 38. A direction was given to prepare a Blue print for reviving and maintenance of drainage and sewerage system inside and outside the City wall of Jodhpur. It is reported that under the Sewerage Master plan, the City was divided into four master drainage zone i.e. Jhalamand, Pal, Punjla and Industrial area. It is reported that the entire Sewerage project has been completed. Recently, the traffic Management Committee visited the Nandri Kallan Sewerage Project, which is having a capacity of 20 MLD. It is stated that the project is found to be operational, which is enough for the requirement of next 34 years. The Camps are being organized to encourage people to take benefit of the sewerage lines. For the better use of treated water, the P.H.E.D. was required to transfer the substantial amount collected in the name of Sewerage to the Municipal Corporation. It is reported that the substantial amount has been paid to the Municipal Corporation and the remaining amount of 208.83 lacs shall be paid latest by 31.03.2007. For the better use of treated water, the P.H.E.D. was required to transfer the substantial amount collected in the name of Sewerage to the Municipal Corporation. It is reported that the substantial amount has been paid to the Municipal Corporation and the remaining amount of 208.83 lacs shall be paid latest by 31.03.2007. It is also brought to our notice that the Nagar Nigam will identify worst sewerage points that need immediate attention through outsourcing by 31.03.2007. For public awareness, the projects details will be placed on their website. The steps are being taken for upgrading the present sewerage system. TRAFFIC MANAGEMENT COMMITTEE : 39. The meetings of the Traffic Management Committee under the chairmanship of the Divisional Commissioner are being regularly held. Before the matter is placed before the Court, the report is received by the Divisional Commissioner. It is found that the monitoring by the Divisional Commissioner has been proved to be very useful and effective. CORE COMMITTEE OF LAWYERS : 40. This Court by order dt. 12.04.2006 constituted a Core Committee of lawyers headed by Shri Marudhar Mridul, Senior Advocate, Mr. Ramrakh Vyas and Mr. B.L. Maheshwari to take stock of all the orders passed by this Court so far and to the extent, they have been complied with by the State and the local authorities. The brief summary of the report submitted, is given as follows: i The project report for the Outer Ring Road and Inner Ring Road be considered favourably ; ii. Looking to the vehicular pollution, presently prevailing in the City, appropriate direction be given for all the public vehicles to use CNG instead of petrol or diesel; iii. With the expansion of Housing Board Schemes and other Schemes, the traffic has increased manifold, as such, appropriate direction be given for widening the road proceeding from Akhaliya Choraya towards Chopasni Road. Similarly, the road proceeding from Residency Road to Boranada is further required to be widened. The obstructions on the way in the form of trees, electric poles etc. be removed. While permitting removal of trees, appropriate directions be given to plant equal number of trees; iv. The plan submitted by Mr. Govind Singh, a senior citizen, with respect to widening of roads, particularly from Railway Station to Sojati Gate, Nai Sarak and Old Stadium be considered; v. The efforts made as to checking of pollution needs to be strengthened more seriously. The plan submitted by Mr. Govind Singh, a senior citizen, with respect to widening of roads, particularly from Railway Station to Sojati Gate, Nai Sarak and Old Stadium be considered; v. The efforts made as to checking of pollution needs to be strengthened more seriously. Serious efforts are to be made to check the movement of unruly City Buses. The private buses are being parked in the busy area in haphazard manner. These buses are mega buses and even double deckers which occupy substantial area of land. Appropriate direction is required to be given to the authorities to earmark land where the Stands for private buses can be provided. They should be located at four corners on the outer periphery of the City; vi. The depot of the R.S.R.T.C., presently situated near the Railway Overbridge, adjacent to Vegetable and Fruit Market, be shifted, as this has become a hazard and accident prone. The land which becomes available on account of shifting of depot of RSRTC, may be made available to Vegetable and Fruit Mandi, which is already in shambles being at a very narrow space; vii. The dustbins provided by the Municipal Corporation are in bad shape. The waste from dustbins is not being disposed of regularly. It is suggested that putting in place a Collection System according to which a Cycle Rickshaw may go around the colonies, collect the waste and then dump the same at the fixed place. It is also suggested that for this purpose, the residents of the area may be saddled with the liability of making payment to these persons through their Mohalla Samitis or by some other method; vii. There are large number of small scale industries emitting smoke and all sorts of pollutants inside the City of Jodhpur. They are in operation without any licence. Chabutaris have been constructed making the narrow roads narrow still. Appropriate direction is required to be given in that regard; ix. The parking area presently available outside the Railway Station for Cars and two wheelers is not sufficient. Appropriate direction is required to be given in that regard to the Railway Administration. It is also suggested that just adjacent to the parking place, there is an old Railway Colony which is extended upto M/s Sanghi Brothers. It is suggested that the Colony may be shifted somewhere else and this area may be utilized for the parking place. Appropriate direction is required to be given in that regard to the Railway Administration. It is also suggested that just adjacent to the parking place, there is an old Railway Colony which is extended upto M/s Sanghi Brothers. It is suggested that the Colony may be shifted somewhere else and this area may be utilized for the parking place. It is also suggested that looking to the future need of 50 years, the entire building of M/s Sanghi Brothers be acquired. A further direction is required to be given to the Railway Administration to provide necessary facilities which may make the other gate of the Railway Station sufficiently operative. x. Looking to the fact that the vehicular traffic has increased mainfold, appropriate direction may be given for multi storeyed parking near the Mohanpura overbridge and the land owned by Chandsa Takiya; xi. The roads which have been laid by P.W.D. and other departments are qualitatively extremely poor; xii. Appropriate direction be given to the Divisional Commissioner to invite and permit the participation of the citizens 41. As a result of the continuous monitoring, the situation has substantially improved. Still, the grievance has been voiced with respect to non-compliance of some of the orders passed by this Court. It is stated that irrespective of the fact that there is a total ban on entry of heavy vehicles in the City of Jodhpur, there are escape entries through streets and other unimportant highways. Regarding plying of the City Buses, it is stated that some laxity is noticed in the matter of checking of vehicles, particularly the City Buses being driven rashly. The City Buses and tempos do not stop at the designated places. The order with respect to parking of heavy vehicles inside the City after loading and unloading work is complete, is not being followed seriously. By and large there is dis-satisfaction with the work done by the A.D.B. It is submitted that removal of encroachment should be taken as a regular process and not as a drive only. The re-encroachment cases should be viewed very seriously. The responsibility be fixed on staff and all the officers concerned. Simply providing parking or pay parking places, is not sufficient. Some more seriousness is required to be shown. With respect to the Solid Waste Management, the people are not being properly educated at the use of plastic buckets. The re-encroachment cases should be viewed very seriously. The responsibility be fixed on staff and all the officers concerned. Simply providing parking or pay parking places, is not sufficient. Some more seriousness is required to be shown. With respect to the Solid Waste Management, the people are not being properly educated at the use of plastic buckets. The conditions of parking have not been improved. The constructions are being raised in the parks of the Colonies. 42. On overall consideration, we are satisfied that the administration of directions given by this Court from time to time since November, 2000, has eventually resulted in precipitating the whole situation. There comes to be noticed visible changes on many fronts, as indicated above. The Core Committee of lawyers has also recorded the satisfaction as follows: “Hon’ble Court has been king enough to reckon numerous problems facing the situation and indeed but for the intervention of the Court and but for the monitoring by a continuous mandamus, lot much has happened in the City to its good. The humble submission of the Committee is that this process should be kept as an on going process and the Hon’ble Court may continue to make directions from time to time.” 43. We have given our thoughtful consideration to the prayer to continue the process of continuous mandamus. A writ of mandamus is an order in the form of a command directed to an administrative authority or other authority required to perform a specific duty fixed by law or associated with the public office. It is obvious that it is primarily for the Executive to advise suitable measures and to provide the machinery for rigid enforcement all those measures to deal with the problems as raised in the instant petition. However, a doubt has been expressed about the extent of powers of the concerned authorities to take adequate and suitable measures for the speedy enforcement of the existing provisions which if properly enforced, would take care of the problems raised. Thus, there is a need of judicial intervention. The Courts have been making judicial intervention concerning violation of human rights, environmental problems etc. as an on going judicial process. The initiative in the direction of the environmental problem was provided on a writ petition filed before the Supreme Court in public interest in the case of M.C. Mehta vs. Union of India (1985). The Courts have been making judicial intervention concerning violation of human rights, environmental problems etc. as an on going judicial process. The initiative in the direction of the environmental problem was provided on a writ petition filed before the Supreme Court in public interest in the case of M.C. Mehta vs. Union of India (1985). Since then, its numerous and diverse orders activated the Central Government, the State Administrations and the Local bodies towards their Constitutional obligation under Article 21 of the Constitution of India. In M.C. Mehta’s case (supra), the Court innovated the principle of continuous mandamus. Since then, it has been resorted in large number of cases. Reference be made to Vineet Narain’s Case reported in 1998(1) SCC 226 . The writ procedure in the public interest litigation has to be speedy and to ensure that, directions given in the public interest, are faithfully and punctually complied with. The judicial innovation requires continuous supervision or monitoring the prospective judicial orders. In a public interest litigation, the role of the Court is that of a catalyst (a substance that increases the rate of chemical reaction). Justice A.S. Anand, former Chief Justice of India, dealing with the judicial activism, observed that judiciary can only act as alarm clock but not as a time keeper. After giving the alarm call, it must ensure to see that the executive performs its duties in the manner envisaged by the Constitution. It must be remembered that the Courts cannot run the Government nor the administrative indulge in abuse or non use of power and get away with it. Judges are expected to be circumspect and self disciplined in the discharge of their judicial functions. The danger of judiciary creating a multiplicity of rights without possibility of adequate enforcement will in the ultimate analysis be counter productive and will undermine the creditability of the Institution. A care must be taken that inadvertently or overzealously, the instrumentality of the Courts is not exercised to be polluted thereby eroding public trust and confidence in the Institution. Judicial activism is delicate exercise involving creativity. Great skill is required for innovation. There is a danger of populism imperceptibility influencing the psyche. Public adulation must not sway the Judges and personal aggrandizement must be eschewed. It is imperative to preserve the sanctity and creditability of the judicial process. Judicial activism is delicate exercise involving creativity. Great skill is required for innovation. There is a danger of populism imperceptibility influencing the psyche. Public adulation must not sway the Judges and personal aggrandizement must be eschewed. It is imperative to preserve the sanctity and creditability of the judicial process. As already observed, in a public interest litigation, the role of the Court is that of a catalyst. Judicial whistle is blown. It is now for the executive and the people to take the things to the logical conclusion. We only say that we are satisfied that the ball has been set in motion and, as such, we do not consider it appropriate to continue with the matter as an on going process for an indefinite period. 44. Before we close the case and give final directions, we record our appreciation for the valuable assistance rendered by the learned advocates of the Core group of lawyers viz; Shri Marudhar Mridul, Senior Advocate, Shri B.L. Maheshwari and Shri Ram Rakh Vyas. We also record our appreciation for the valuable assistance rendered by Shri R.L. Jangid former Additional Advocate General and Shri N.M. Lodha, Additional Advocate General. We also record our deep appreciation for all the officers of the State Government and the local authorities, who have done their best in complying with the directions of this Court to achieve the pious object of the instant public interest litigation. 45. Consequently, the writ petition is disposed of as follows: (i) The Jodhpur City and the areas contiguous have progressively developed and populated. In the orderly and rapid development of the area, several Government departments, local authorities and other Organizations are not only required to be engaged but there is a necessity to bring the coordination among them. Thus, it would be expedient to consider to set up an authority in the line of Jaipur Development Authority i.e. to say Jodhpur Development Authority; (ii) The State Government is directed to ensure the compliance of the order dt. Thus, it would be expedient to consider to set up an authority in the line of Jaipur Development Authority i.e. to say Jodhpur Development Authority; (ii) The State Government is directed to ensure the compliance of the order dt. 21.11.2000 passed by this Court within a time schedule as to shifting of public buildings including the High Court and other Courts/Tribunals in order to reduce the congestion from the High Court Road; (iii) The effective directions and compliance thereon, has substantially reduced the traffic congestion from the City but this should not be taken as the end of the matter, as the directions given by this Court from time to time and compliance thereon, are bound to have effect on the future development of the City changing its complexion. It is directed that the orders given by this Court from time to time be enforced effectively; (iv) The byepass which was promised to be made operational by the end of December, 2006, could not be completed for the reasons given. The time for the same is extended upto September, 2007. We hope and trust that the said job shall be completed during the stipulated period i.e. September, 2007; (v) In the matter of laying down the roads and maintenance inside the City by different agencies viz; National Highway Authorities, P.W.D., U.I.T. and the Municipal Corporation, substantial work has been done. However, the complaint is that the roads laid down by the P.W.D. and the U.I.T. are qualitatively poor. We feel that little more is required to be done to improve the roads of the City of Jodhpur. The National Highway Authorities are directed to improve the conditions of the roads passing through the City. They should also work in coordination with the U.I.T. and the Municipal Corporation. An officer of the National Highway Authorities will regularly participate in the Traffic Management Committee meetings. We disapprove the obstructions created by the National Highway Authorities in the matter of providing parking. They must clearly understand that the work has been undertaken under the orders of this Court. Similarly, the U.I.T., the Municipal Corporation and the P.W.D. should take more effective steps to improve the road conditions of the City of Jodhpur; (vi) All the authorities are directed to punctually and faithfully comply with the orders of this Court as to removing encroachments from the public places. Similarly, the U.I.T., the Municipal Corporation and the P.W.D. should take more effective steps to improve the road conditions of the City of Jodhpur; (vi) All the authorities are directed to punctually and faithfully comply with the orders of this Court as to removing encroachments from the public places. The anti-encroachment and demolition programmes should be taken as a regular course and not as a drive only. Obstructions on roads in the form of poles, transformers, hoardings, cabins, installed some sort of structure to show place of worship of any religion, trees be shifted or removed. In case of removal of trees, same number of trees be planted at appropriate place. Encroachments on roads, particularly Pal Road, as indicated above, be removed. In case of re-encroachment, matters be reported to the Court by way of initiation of contempt proceedings; (vii) In the matter of traffic control, effective work has been done. The traffic police has succeeded in controlling the unruly traffic in the City of Jodhpur. However, something more seriously needs to be done to check the movement of unruly City Buses. Unfortunately, the rash driving of the drivers of the Luxury Cars has become hazard for the innocent people thereby increasing the number of accidents. The exemplary penalties be inflicted on drivers of the City Buses driving rashly and so as the cars and motorcycles. The careless driving using mobiles, should be checked and exemplary penalties be imposed; (viii) Inspite of repeated directions for proper parking, the private Buses are being seen parked in busy areas in the haphazard manner. These buses are mega buses and even double decker which occupy substantial area of the land. Thus, we direct the concerned authorities to earmark the land within a period of six weeks, where the Stand for private buses can be provided. In this regard, the concerned authorities should take into account the report of the Lawyers Core Group; (ix) The authorities should take effective steps that within a period of one year, the public vehicles use C.N.G. instead of petrol and diesel; (x) It is reported that there are large number of small scale industries emitting smoke and all sorts of pollutants inside the City of Jodhpur. It is also reported that they are in operation without licence. It is also reported that they are in operation without licence. Effective steps be taken to shift them outside the City within a period of six months; (xi) Considering the expansion of the Housing Board Scheme and other Schemes and the increase of traffic manifold, it is directed that effective steps be taken for widening the road proceeding from Akhaliya Choraya towards Chopasni Road. Similarly, the road proceeding from Residency Road to Boranada be further widened. The obstructions in the form of trees, electric poles etc. be removed. While removing the trees, equal number of trees be planted at appropriate places; (xii) A study be made and if possible, the depot of R.S.R.T.C. presently situated near the Railway Overbridge adjacent to the Vegetable and Fruit Market be shifted to elsewhere, as it has become a hazard and accident prone; (xiii) The State Government is directed to make the Solid Waste Management practice as effective for improving the quality of life in urban areas. The Municipal Corporation is directed to properly arrange and supervise the work of Street Sweepers and Labour force employed in collection, transportation, processing and disposal of waste effectively; (xiv) The Municipal Corporation, Jodhpur is directed to provide provision for collection, transportation and disposal of construction waste and debris without delay for which appropriate bye-laws be prepared to bound down the person likely to produce construction waste, to deposit with the Local Bodies an approximate amount in advance at the rates as may be prescribed for removal and disposal of construction waste from his premises. Such amount may be deposited at the time when building permission is sought and in case, where such permission is not required, at any time before such waste is produced. Similarly, provision be made for collection of waste and prescribe the rates for collection of waste from Marriage Halls, Community Halls and other functions. This can be multiplied by prescribing the rates for collection of bio-medical waste, hotel and restaurant waste and vegetable, fruit, meat markets waste, garden waste etc; (xv) The direction given with respect to deputing the Mobile Magistrate and providing him a vehicle is extended upto 30.05.2007. This can be multiplied by prescribing the rates for collection of bio-medical waste, hotel and restaurant waste and vegetable, fruit, meat markets waste, garden waste etc; (xv) The direction given with respect to deputing the Mobile Magistrate and providing him a vehicle is extended upto 30.05.2007. The decision with respect to further continuance shall be taken by the High Court and the State Government at the administrative level; (xvi) The Railway Administration in compliance with the orders of this Court and otherwise as well, has taken effective steps in reducing the congestion outside the Railway Station and providing smooth traffic. However, much is still required to be done. The parking of the cars and two wheelers outside the Railway Station is still found to be unruly. The Railway Administration should take effective steps in that regard; and (xvii) There shall be complete ban on immersion of idols and other materials during festivals in any of the Water Reservoirs of the City, which results into contamination of water. The District Administration is directed to follow the directions given in this regard in a “Public Interest Litigation” being D.B. Civil Writ Petition No. 4938/2003 “Poonam Chand Solanki vs. State of Rajasthan; (xviii) Inadequate taxation and ineffective management, both, renders the municipal services far from being satisfactory. Thus, the State Government should seriously consider and improve the finance of the Urban Local Bodies, particularly the Municipal Corporation, Jodhpur. (xix) Last but not the least, we say that any direction or effort by this Court or any other authority, would be of no worth, if the citizens do not actively participate to make the traffic management or other management, effective. 46. We conclude with the hope and trust that all right thinking people interested in the development of the City, will cooperate with the State and Local Authorities for the betterment of the City of Jodhpur. * * * * *