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2007 DIGILAW 534 (UTT)

DEVENDRA SINGH v. SIDH NARSINGH BADRINATH MANDIR

2007-10-31

B.S.VERMA

body2007
JUDGMENT P.C.: Hon’ble B.S. Verma, J. Learned counsel for both the parties are ready to argue the writ petition finally today at the admission stage without inviting counter affidavit. Heard them and perused the record. 2. By means of this writ petition, the petitioners have prayed for issue a writ, order or direction for setting aside the impugned judgment and decree dated 23.08.2005 (Annexure No. 6 and 7) passed by the Judge S.C.C. Almora and judgment and order dated 11.09.2007 passed by the District Judge Almora in Civil Revision no. 5 of 2005. 3. Relevant facts giving rise to the present writ petition, in brief, are that the plaintiff-respondent filed S.C.C. Suit No. 1 of 2001 against the petitioners-defendants for recovery of damages and for eviction of the defendants from the property detailed in Annexure Ka to the plaint. Plaintiff also claimed Rs. 280/- and mesne profit @ Rs. 40/- per month. The plaintiff has alleged that the plaintiff Shri Sidh Narsingh Badrinath Mandir is situated in Paltan Bazar Almora and is a religious institution. It is a Sidh Peeth. Some properties bearing Municipality Nos. 17, 19, 19/1, 20, 21/1 have been vested with the idol of the temple. Sri Anantacharya Vidya Bhusan is the Mahant of the temple. He looks after the properties and also manages the temple. The property in dispute is in the ownership of the plaintiff. According to the plaintiff, the shop bearing Municipal No. 17 and four rooms situate in the first floor were given on rent @ Rs. 40/- per month to the father of defendant Lachham Singh. The boundaries of the property in dispute have been given in Annexure-Ka. Lachham Singh died and the defendants being the legal heirs of Lachham Singh are in possession of the property in dispute as tenants. Defendants are not in need of the property in dispute because they have constructed a new house in Mohalla Dugalkhola, Almora. They have sublet the disputed property to one Jeewan Singh Rautela without the permission of the plaintiff. The plaintiff gave a notice to quit under Section 106 of the Transfer of Property Act terminating the tenancy of the defendants, which was served upon them on 27.9.2000. The defendants gave a false reply and did not vacate the property in dispute. According to the plaintiff-respondent, the provisions of U.P. Act no. The plaintiff gave a notice to quit under Section 106 of the Transfer of Property Act terminating the tenancy of the defendants, which was served upon them on 27.9.2000. The defendants gave a false reply and did not vacate the property in dispute. According to the plaintiff-respondent, the provisions of U.P. Act no. 13 of 1972 are not applicable to the property in dispute. The plaintiff filed the suit for possession and for recovery of damages against the defendants. 4. The defendants-petitioners filed their joint written statement. They have admitted the ownership of the plaintiff. It was asserted that Anantacharya has no right to file the suit on behalf of the temple. The defendants admitted to have received the notice sent by the plaintiff. It has been stated in the additional pleas that the name of Mahant Anant Acharya has been recorded in the Nagar Palika record. He has not filed any document authorizing him to file the suit on behalf of the plaintiff. This property always remained in possession of the defendants. It has also been stated that the defendant no. 2 is married and she has no right in the property in dispute. She is filing her written statement as proforma defendant. It has been denied that the defendants are not in need of the property in dispute. It was also denied that the defendants have constructed a new house. The defendants have also denied that the property in dispute had been sublet to Jeewan Singh Rautela. No change had been carried in the property in dispute. It has been asserted that the defendant no. 1 is the only earning member of the family and he is running his business in the shop in dispute. The defendants have claimed to be in bona fide need of the property in dispute. It was also asserted that the plaintiff has no cause of action to file the suit. 5. Learned J.S.C.C. framed necessary points for determination in the suit, recorded the evidence led by the parties, heard them and after perusing the evidence the learned J.S.C.C. has decreed the suit of the plaintiff-respondent by judgment and decree dated 23.8.2005 thereby directed the defendants to vacate the disputed premises detailed in Schedule Ka appended to the plaint within a period of three months. The trial court also directed the defendants to pay damages @ Rs. The trial court also directed the defendants to pay damages @ Rs. 40/- per month from the date of termination of tenancy till the date of delivery of possession to the plaintiff. 6. Aggrieved by the impugned judgment and decree, the petitioners-defendants preferred a revision before the learned District Judge, which was registered as Civil Revision No. 5 of 2005. The learned revisional court came to the conclusion that the property in dispute belongs to public religious institution. The Revisional Court also observed that “in this case, the suit has been filed by Shri Sidh Narsing Badrinath Mandir through Mahant Ananta Acharya Vidya Bhushan. It should have been filed on behalf of idol to whom the property vests. But it is only a misdescription. Therefore, it will not affect the merit of the case at all.” On the premise that the property under the tenancy of the defendant-petitioners belongs to public religious institution, it is exempted from the purview of U.P. Act No. 13 of 1972. Ultimately, the Revisional Court did not find favour with the revisionists and dismissed the revision vide judgment and order dated 11.9.2007. However, the revisionists were given time to vacate the premises upto 28th February, 2008 provided the revisionists furnish an undertaking and pay all the arrears for use and damages as mentioned in the judgment. Aggrieved, the defendant-petitioners have come up before this Court in the present writ petition. 7. I have heard learned counsel for both the parties and perused the impugned judgments passed by the two-courts below. 8. At the outset it may be mentioned that the scope of writ jurisdiction under Articles 226 and 227 is limited. This Court in exercise of writ jurisdiction cannot sit like a court of appeal and cannot re-appreciate or re-evaluate the evidence so as to arrive at a different conclusion. Only perversity in the impugned order can be seen to find out whether there is a case of mis-reading of evidence by the court concerned. It has been observed by the Apex Court in the case of Surya Dev Rai Vs. Ram Chander Rai and Others [(2003) 6 Supreme Court Cases, 675 that “On the other hand, supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. It has been observed by the Apex Court in the case of Surya Dev Rai Vs. Ram Chander Rai and Others [(2003) 6 Supreme Court Cases, 675 that “On the other hand, supervisory jurisdiction under Article 227 of the Constitution is exercised for keeping the subordinate courts within the bounds of their jurisdiction. When a subordinate court has assumed a jurisdiction which it does not have or has failed to exercise a jurisdiction which it does not have or the jurisdiction though available is being exercised by the court in a manner not permitted by law and failure of justice or grave injustice has occasioned thereby, the High Court may step in to exercise its supervisory jurisdiction.” In the case “Ranjeet Singh Vs. Ravi Prakash” [(2004) 3 S.C.C. page 682], the Apex Court has observed inter alia in paragraph 4 of the judgment that “An error which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. If it is reasonably possible to form two opinions on the same material, the finding arrived at one way or the other, cannot be called a patent error. As to the exercise of supervisory jurisdiction of the High Court under Article 227 of the Constitution also, it has been held in Surya Dev Rai that the jurisdiction was not available to be exercised for indulging in reappreciation or evaluation of evidence or correcting the errors in drawing inferences like a court of appeal.” 9. Learned counsel for the petitioners vehemently argued that the finding of the two courts below that the provisions of U.P. Act No. 13 of 1972 are not applicable to the suit is perverse and cannot be sustainable. I am not inclined to accept the contention of the learned counsel for the petitioners for the simple reason that in the very first paragraph of the plaint, the plaintiff-respondent has alleged that the plaintiff Sri Sidh Narsingh Badrinath temple, which is situated at Paltan Bazar of Almora city, is a public religious institution. In this paragraph, the plaintiff has disclosed the Municipal Numbers of the suit property. A copy of the plaint has been annexed by the petitioners as Annexure No. 1 to the writ petition. The defendants have filed their written statement and the contents of paragraph no. In this paragraph, the plaintiff has disclosed the Municipal Numbers of the suit property. A copy of the plaint has been annexed by the petitioners as Annexure No. 1 to the writ petition. The defendants have filed their written statement and the contents of paragraph no. 1 of the plaint except the municipal numbers of the property have been admitted. A copy of the written statement has been annexed as Annexure No. 2 to the writ petition. Moreover, the learned Revisional Court has observed in paragraph no. 17 that “there is no evidence on record contradicting the statement of P.W. 1 who has stated on oath that all the income of the property belonging to the idol of the temple used for the religious purposes.” The Revisional court further observed that “previously, the defendant moved an application under Section 30 of the U.P. Act No. 13 of 1972 with the prayer that he may be permitted to deposit the rent. That application was registered as Misc. Case No. 2 of 2004. That application was rejected vide order dated 3.5.2004 holding that the property belongs to the public religious institution. That order is final. No appeal has been preferred against that order.” 10. The courts below have rightly held that the property in dispute belongs to the public religious institution and it is exempted from the purview of U.P. Act No. 13 of 1972. 11. Learned counsel for the petitioners further argued that the suit filed by the plaintiff on behalf of the temple and not on behalf of idol is not legally maintainable. In my view, mentioning of name of temple instead of name of idol is just a misdescription and it does not affect the merit of the case. This contention was raised before the learned District Judge is revision. The learned District Judge has placed reliance upon the case of Vidya Sagar Sharma and others Vs. Anand Swarup Dublish and others [AIR 1981, Allahabad, Page 106], wherein it has been held that if the name of temple instead of name of idol is mentioned as plaintiff, it has to be presumed that there was a misdescription and that plaintiff was idol and not temple. 12. Learned counsel for the petitioners has lastly argued that the notice under Section 106 of the Transfer of Property Act sent by the plaintiff to the defendants is illegal. 12. Learned counsel for the petitioners has lastly argued that the notice under Section 106 of the Transfer of Property Act sent by the plaintiff to the defendants is illegal. It is pertinent to note that the petitioners could not dare to annex a copy of the notice sent under Section 106 of the said Act along with the memo of writ petition presumably because if the notice would have been brought on record it would have gone against the contention of the petitioners. Moreover, the learned District Judge has discussed the legality of the notice in paragraph no. 23 of the revisional court’s order. Learned counsel for the petitioners could not point out a single instance to indicate illegality in the notice served upon the defendants. It has been observed by the revisional court that “the plaintiff has filed the copy of the notice Paper No. 6C. 7C is the receipt while 7C/2 is the acknowledgement. Therefore, the service of the notice is not only proved by the plaintiff but it is admitted by the defendant in his W.S. He has stated in Para No. 5 of his W.S. that it is admitted that the notice was served upon him. He has further stated that he gave the answer of the notice. In notice Paper No. 6C, the plaintiff has specifically stated that the plaintiff does not want to keep the defendant as tenant no more. He has also requested to the defendant to vacate the property in tenancy after 30 days from the date of service of the notice. The same was served upon the defendant on 25.9.2000. The suit was filed on 14.6.2001. Hence, the plaintiff has filed this suit after termination of the tenancy.” I am not inclined to accept the contention of the learned counsel for the petitioners that the notice under Section 106 of the Transfer of Property Act served upon the defendants is illegal. 13. All the legal questions raised in the present writ petition have already been dealt with by the Revisional Court elaborately in its judgment. The impugned judgment and decree dated 23.8.2005 passed by the learned J.S.C.C. Almora and the impugned order dated 11.9.2007 passed by the learned District Judge, Almora in revision do not suffer from any perversity or serious infirmity. The writ petition is devoid of merit and is liable to be dismissed outright. 14. The impugned judgment and decree dated 23.8.2005 passed by the learned J.S.C.C. Almora and the impugned order dated 11.9.2007 passed by the learned District Judge, Almora in revision do not suffer from any perversity or serious infirmity. The writ petition is devoid of merit and is liable to be dismissed outright. 14. At this stage, learned counsel for the petitioners have urged that the petitioners may be given reasonable time to vacate the disputed property. As mentioned earlier, the learned District Judge has already given sufficient time to the defendants upto February 28, 2008. However, in my view the ends of justice would be subserved if the defendants-petitioners are granted nine months’ period, i.e. upto 31st July, 2008, to vacate the property in dispute and to deliver its vacant and peaceful possession to the plaintiff-respondent, provided the petitioners-defendants furnish an undertaking to that effect and deposit all the arrears of damages as per judgment and decree dated 23.08.2005 passed by the learned Judge, S.C.C./Civil Judge (Junior Division) Almora before the trial court within a period of two months from today. 15. The writ petition is dismissed with no order as to costs. However, the defendant-petitioners are granted nine months’ period, i.e. upto 31st July, 2008, to vacate the property in dispute and to deliver its vacant and peaceful possession to the plaintiff-respondent, provided the petitioners-defendants furnish an undertaking to that effect and deposit all the arrears of damages as per judgment and decree dated 23.08.2005 passed by the learned Judge, S.C.C./Civil Judge (Junior Division) Almora before the trial court within a period of two months from today.