JUDGMENT 1. - The instant first appeal has been filed by the appellants against the judgment and decree dated 19.01.2011 passed by the learned District Judge, Sojat, District Pali, in civil original suit No.03/2007. 2. With the consent of learned counsel for the parties the appeal has been heard finally,while hearing on stay application. 3. The brief facts giving rise to this appeal are that respondents filed a suit for eviction and arrears of rent and mesne profit against Mishri Lal appellant No.1. Appellant raised the objection that initially the shop was let out to Smt.Kana Devi and the legal representatives of Smt. Kana Devi have not been made party. In this regard issue No.9 has been framed. It was averred in the plaint that in Sojat City, Kushalwadi Trust is having a property and shops were let out to Smt.Kana Devi on 01.08.1976 and the rent and house tax has been deposited in the account of Trust. It was alleged in the plaint that defendant appellant No.1 Mishri Lal has deposited rent upto March 2006. The plaintiff demanded the mesne profit at the rate of Rs. 3,000/- per shop per month. It was averred that the disputed shops have not been handed over to the plaintiffs and the plaintiff respondents gave notice for termination of tenancy and prayed for eviction of the defendants. 4. Defendant appellants filed an application under order 1 Rules 10 CPC read with Order 6, Rule 17 to implead other heirs of Smt.Kana Devi, except Mishri Lal as party. The same was allowed by the learned trial court vide order dated 27.10.2007 so as to implead sons of deceased Smt.Kana Devi as defendants and amended cause title was submitted. 5. Defendants in their written statement averred that rent, including house tax, have been deposited and the plaintiff Trust has accepted the rent. It was further averred that rent is paid upto April 2007 and no rent is due against defendants and since the trust is registered under Public Trust Act, the plaintiffs are not entitled to file the suit and the suit is not maintainable on account of the provisions of Public Trust Act and prayed for dismissal of the suit. Appellants in their written statement averred that the shops have been let out in the year 1968-1969 and Smt.Kana Devi has taken water connection in the premises with the consent of Trustees on 12.04.1971. Appellants in their written statement averred that the shops have been let out in the year 1968-1969 and Smt.Kana Devi has taken water connection in the premises with the consent of Trustees on 12.04.1971. The defendants stated that the tenancy is not terminated and after the demise of Smt.Kana Devi on 26.08.1995 the defendants applied for executing new tenancy on 13.11.1995. The defendant appellants also requested for removal of encroachment but the Manager of the Trust demanded Rupees two lacs per shop as advance money. 6. It was also averred in the written statement that the suit has been filed just to harass the defendants and to deprive the defendants of their livelihood. After taking vacant possession of the shops, the shops were let out again in the year 2005-2006. It was stated that in these circumstances, the trustees are not working in the interest of Public interest but they are working for their own interest. 7. After taking vacant possession of the shops, the shops were let out again in the year 2005-2006. It was stated that in these circumstances, the trustees are not working in the interest of Public interest but they are working for their own interest. 7. On the pleadings of the parties the following 12 issues were framed:- 1- vk;k dkuknsoh dh e`R;q gksus ls o fodYi esa oknhx.k dh vksj ls izfronh la[;k ,d feJhyky dks fn0 12-08-2006 dks] izfroknh la[;k nks ls ikap dks fnukad 29-8-2007 dks uksfVl nsus ls izfroknh la[;k ,d yxk;r ikap dh fdjk;skjh lekIr gks xbZ\ " oknhx.k " 2- vk;k fdjk;snkjh lekIr gksus ds nl fnu ls oknhx.k izfroknh feJhyky ls oknxzLr nqdkuksa ds fd;s x;s mi;ksx miHkksx ds lanHkZ esa gtkZus ds :i esa izfr nqdku :0 3000@& ds fglkc ls ekfld :i ls dqy :0 9000@& izkIr djus ds vf/kdkjh gS\ " oknhx.k " 3- vk;k dkuknsoh ds e`R;q ds i'pkr~ izfroknh lfgr mlds iq=ksa vkseizdk'k] enuflag ,oa egsUnzflag }kjk vnk fd;s x;s fdjk;s dks e; x`gdj jkf'k oknh V~LV }kjk Lohdkj fd;k x;k\ " izfroknh " 4- vk;k dkuknsoh dh e`R;q ds i'pkr~ oknhx.k us crkSj fdjk;snkj izfroknh ls i= O;ogkj fd;k\ " izfroknh " 5- vk;k dkuknsoh dh e`R;q ds i'pkr~ crkSj fdjk;snkj izfroknh dh vksj ls tek djk;s x;s fdjk;sa dks oknhx.k us cSad ls vkgfjr fd;k\ " izfroknh " 6- vk;k oknh V~LVh dq'kypan fla?koh us crkSj fdjk;snkj izfroknh dks ;g funsZf'kr fd;k fd nyirjkt Hk.Mkjh ls fdlh izdkj ls dksbZ i= O;ogkj u djsa\ " izfroknh " 7- vk;k oknhx.k dks okn is'k djus dk vf/kdkj ugha gS\ " izfroknh " 8- vk;k oknhx.k dk mn~ns'; ek= fookfnr nqdkuksa ds laca/k esa izfroknh ls fdjk;s ds :i esa :0 9000@& dh jkf'k izkIr djus dk gS\ " izfroknh " 9- vk;k oknhx.k us tkucw> dj e`rd dkuksnsoh ,oa izfroknh ds iq=ksa vkseizdk'k] enuflag] egsUnzflag dks okn esa i{kdkj ugha cuk;k gS\ " izfroknh " 10- vk;k oknhx.k dk mn~ns'; oknxzLr nqdkuksa dks vU; O;fDr;ksa dks fjdk;s ij nsus dk gS\ " izfroknh " 11- vk;k oknh V~LV lkoZtfud izU;kl vf/kfu;e 1959 ds rgr nsoLFkku foHkkx] tks/kiqj esa jftLV~hd`r gS ftldh otg ls oknhx.k okn is'k djus ds vf/kdkjh ugha gS\ " izfroknh " 12- vuqrks"k " 8. On behalf of plaintiff respondents two witnesses namely, PW/1 Kushal Chand and PW/2 Ram Lal Sharma were examined and on behalf of defendant appellants two witnesses, namely, DW/1 Om Prakash and DW/2 Manak Chand were examined. 9. After conclusion of the trial, the learned trial court decreed the suit vide its judgment and decree dated 19.01.2011. Being aggrieved by the impugned judgment and decree dated 19.01.2011 the defendant appellants have preferred this first appeal. 10. For deciding the first appeal, the point for determination involved is that whether the plaintiff respondents legally terminated the tenancy of the defendant appellants by issuing a notice under section 106 of the Transfer of Property Act (hereinafter referred to as the Act) and further whether the plaintiff Trust has the right to file the suit and whether the learned trial court decreed the suit for mesne profit at the rate of Rs. 3,000/- per month, per shop, is a legal one ? 11. Although other issues were framed by the learned trial court on the basis of the averments made in the written statement but these issues do not bear any relevancy to the present controversy involved in the suit, because the suit was filed by the plaintiff respondents against the defendant appellants, simply for eviction of the suit property on the basis of termination of the tenancy under section 106 of the Act and on the basis of averments made in the written statement regarding the fact that the plaintiffs want to run the property on higher rent, or what was the effect of the communication which took place between the plaintiffs and the defendants after the death of the original tenant Smt.Kana Devi or the fact that the Trustee Kushal Chand informed the tenant not to make any correspondent with Dalpat Lal Bhandari other issues were framed. 12. For determination of the above point, the counsel for the appellants firstly contended that notice of termination of tenancy, given by the defendants, Ex.8, is not legal one because it was only served upon Mishri Lal, whereas the legal heirs of Smt.Kana Devi were other persons also and even the subsequent notice Ex. 12 served upon Bhanwar Lal, Mahendra, Om Prakash and Madan do not serve the purpose regarding the termination of the tenancy of the appellant in a legal way. 12 served upon Bhanwar Lal, Mahendra, Om Prakash and Madan do not serve the purpose regarding the termination of the tenancy of the appellant in a legal way. Counsel for the appellants contended that under section 106 of the Act, six months notice is mandatory whereas plaintiff respondents served the notice Ex.8 and Ex.12 of only 15 days period, which is not in accordance with the provisions of section 106 of the Act. He further contended that Ex.12 notice was issued on 29.08.2007 after the institution of the suit. Therefore, it cannot have the effect of termination of the tenancy of the appellants and respondents No.5. 13. Per contra, learned counsel for the respondents contended that in case of agricultural land, or the premises used for any production, six months notice is required for legal termination of the tenancy but as per the provisions of sub-section (1) of section 106 of the Act, in all other cases where the lease is from month to month, the notice of 15 days is sufficient to terminate the tenancy. 14. Counsel for the appellant while placing his arguments relied on the judgment of the apex court in Laxmidas Bapudas Darbar v. Rudravva [2001 SC Candid 906] . 15. Counsel for the respondent relied on the judgment of the Honble apex court in Sh.Janaki Devi Bhagat Trust Agra v. Ram Swarup Jain (Dead) by Lrs. [RLW (SC) 2 (1995) 125] in which the Hon'ble apex court held that where the immovable property was given on lease for manufacturing purpose, lease was not from year to year or for a period exceeding one year, six months notice is not required for termination of lease, it can be terminated by a notice of fifteen days. 16. I have perused the judgment passed by the learned trial court and considered the contentions raised by both the parties and the judgment cited by both the parties. 17. Earlier, the suit was filed against only one defendant Mishri Lal, husband of Smt.Kana Devi and this suit was presented on the basis of the termination of the tenancy vide notice Ex.8. Later on by issuing notice Ex.12 to other four persons, the suit was instituted against four more persons and thus in addition to defendant No.1, 4 more defendants were added as party being sons of original tenant Smt.Kana Devi. Later on by issuing notice Ex.12 to other four persons, the suit was instituted against four more persons and thus in addition to defendant No.1, 4 more defendants were added as party being sons of original tenant Smt.Kana Devi. So far as defendant No. 1 Mishri Lal, who is appellant No.1, the suit was filed on the basis of termination of the tenancy vide Ex.8 and against rest of the persons, it was filed on the basis of notice Ex.12. The learned trial court discussed this point elaborately and held that as the suit was instituted against all the respondents after the period of 15 days' notice, therefore, the notice was legal one. The learned trial court, while deciding issue No.1, also held that the rent Note was not for the agricultural land or of any premises for manufacturing purpose and the lease agreement Ex.1, cannot be said to be on yearly basis but on the contrary, it is on monthly basis and the lease executed by Ex.1 cannot be said to be for an indefinite period. Therefore, the learned trial court decided issue No.1 in favour of plaintiff respondents. 18. I have perused the statement of PW/1 Kushal chand and PW/2 Ram Lal Sharma and also the statement of DW/1 Om Prakash and DW/2 Manaak Chand. 19. PW/1 Kushal Chand in his affidavit stated that vide Ex.1 rent Note, the suit property was rented to Smt.Kana Devi and defendant No.2, 3, 4 and 5 are the sons of Smt.Kana Devi. On 12.01.2006 notice was given to Mishri Lal for termination of tenancy, which was served upon him on 17.08.2006 Subsequently, a notice was served upon defendant No. 2 to 5 on 29.08.2007 which was served upon them on 30.08.2007 and he proved the postal receipts and other documents. He further proved the Rent Note Ex.1 and its Registration Certificate of Trust as Ex.2. 20. The witness of the defendant appellants DW/1 Om Prakash and DW/2 Manak Chand have not denied the service of the notice under section 106 of the Act. He further proved the Rent Note Ex.1 and its Registration Certificate of Trust as Ex.2. 20. The witness of the defendant appellants DW/1 Om Prakash and DW/2 Manak Chand have not denied the service of the notice under section 106 of the Act. In a suit filed for ejectment, on the basis of termination of tenancy under section 106 of the Act, no defence is available to the defendants except the legality of the notice and so far as the legality of the notice is concerned, the trial court rightly held that neither the property was rented for agricultural purpose nor for manufacturing purpose and the tenancy was from month to month and 15 days' notice was served upon the defendants. Therefore, the point for determination regarding the legality of notice is decided in favour of the defendant appellants. 21. The second argument advanced by the counsel for the appellant is that the suit, as it was filed by the plaintiff, suffers from the illegality on the ground that the trustees had no right to file the suit. 22. I have perused the plaint. The suit was filed on behalf of Kushalwadi Trust, Sojat and by all the four trustees and in my considered opinion, it cannot be said that the plaintiff respondents had no right to file the suit. 23. The judgment of the Hon'ble apex court, passed in Sh.Janaki Devi Bhagat Trust, Agra v. Ram Swarup Jain (Dead) by Lrs. [RLW (SC) 2 (1995) 125] as produced by the counsel for the respondents, bears the similar facts and the law laid down in the above judgment supports the arguments advanced by the counsel for the respondents. The judgment cited by the learned counsel for the appellants bears the different facts because in this case the suit was filed under the provisions of the Rent Control Act. 24. As regards issue No.3, 4,5,6,7,9 and 10 are concerned, even the objections taken by the defendants in the written statement cannot be said to have any bearing for deciding the real controversy in the suit, because in the suit for eviction on the ground of termination of tenancy under section 106 of the Act, these grounds are not tenable. 25. Now, the question of determination of the mesne profit by the learned trial court is concerned, the learned trial court allowed the mesne profit of Rs. 25. Now, the question of determination of the mesne profit by the learned trial court is concerned, the learned trial court allowed the mesne profit of Rs. 3,000/- per month, per shop, to the plaintiff respondents and it recorded the finding on issue No.2 on the basis of the evidence PW/2 Ram Lal Sharma, who deposed that the present rent of each shop is about Rs. 3,000/- to Rs. 5,000/- per month and he further deposed that he is working as the Manager of the Kushalwadi Trust since the year 2005. He further deposed that some persons are even ready to pay rent at the rate of Rs. 5,000/- per month. The learned trial court, while considering the evidence of PW/2 Ram Lal Sharma, held that as the shops are situated in the Rajpole Gate, Sojat City which is main road in the City, it is very natural that the present rates of the shop can be Rs. 3,000/- per month. The learned trial court failed to note that the statement of PW/2 Ramlal was recorded on 06.04.2010 and the suit was filed in the year 2007 and the tenancy was terminated in the year 2006. Thus, the learned trial court considered the rate of rent after the lapse of four years of the termination of the tenancy. The counsel for appellants contended that the mesne profit awarded by the learned trial court is too high and each shop can fetch only about Rs. 100/- per month and the learned trial court erred in relying upon the evidence of PW/2 Ram Lal Sharma. 26. I have perused the statement of PW/2 Ram Lal Sharma as well as the statement of DW/1 Om Prakash and DW/2 Mank Chand. DW/2 Manak Chand in his examination in chief on the affidavit deposed that a notice was given by the plaintiff respondents to Kuna Ram s/o Boraji Kumhar demanding Rs. 1500/- per month as mesne profit and he further deposed that in Sojat City the normal rent of the shop is in between Rs. 300/- to Rs. 500/- per month. 27. It is admitted fact that there are 20 to 25 shops in the above Trust, as admitted by PW/1 Kushal Chand in his cross examination, but the plaintiff respondents have not filed any rent receipts of Rs. 300/- to Rs. 500/- per month. 27. It is admitted fact that there are 20 to 25 shops in the above Trust, as admitted by PW/1 Kushal Chand in his cross examination, but the plaintiff respondents have not filed any rent receipts of Rs. 3,000/- per month received from any of the tenant, whereas the plaintiff could have filed the rent receipts of Rs. 3,000/- per month received from any of the tenant of the above shops. This fact has not been considered by the learned trial court and the learned trial court simply relying on the statement of PW/2 Ram Lal Sharma, determined the amount of mesne profit as Rs. 3,000/- per month. At the same time, there is no cross examination by the plaintiff respondents of DW/1 Om Prkash regarding the fact that the contentions made in para No.9 of the affidavit are not correct or false one. In these circumstances, I think the mesne profit as awarded by the learned trial court to the respondent plaintiffs, is excessive and I, accordingly, determine the amount of mesne profit as Rs. 1,000/- per month per shop. 28. Resultantly, the point for determination as framed by me is answered that the plaintiff respondents legally terminated the tenancy of the defendant appellants by issuing a notice under section 106 of the Act and further as all the trustees of the Trust have filed the suit for ejectment, the Trust has the right to file the suit and further it is answered that the decree passed by the learned trial court for Rs. 3,000/- per month as mesne profit, is excess and the mesne profit to be decreed in favour of the plaintiff respondents must be Rs. 1,000/- per month per shop i.e. Rs. 3,000/- per month in total for three shops. 29. In view of the aforementioned discussions, it cannot be said that the impugned judgment and decree passed by the learned trial court regarding termination of tenancy is against the law or contrary to the facts available on record. 30. Accordingly, the appeal filed by the appellants is partly allowed. The decree for eviction of the appellant defendants is affirmed. However, the mesne profit as awarded by the learned trial court from 01.09.2007 is reduced from Rs. 9,000/- per month to Rs. 3,000/- per month. No order as to costs.Appeal Partly allowed. *******