JUDGMENT : 1. The present second appeal has been filed by the appellant/defendant/tenant, Motilal S/o Sh. Narayan Sunar, aggrieved by the judgment and decree dated 21.03.2009 passed by learned Additional District Judge (Fast Track) No.4, Jodhpur, allowing respondent/plaintiff's First Appeal No.75/2008-Mahendra Prakash S/o Sh. Bhanwarlal Vs. Motilal S/o Sh. Narayan Sunar, holding that there was default in payment of rent by the defendant/tenant, Motilal, in respect of suit property situated at “Ranawatji-Ka-Mandir”, Hathiram Ka Oda, Jodhpur, a temple/Trust property. 2. Bhanwarlal Vs. Motilal S/o Sh. Narayan Sunar, holding that there was default in payment of rent by the defendant/tenant, Motilal, in respect of suit property situated at “Ranawatji-Ka-Mandir”, Hathiram Ka Oda, Jodhpur, a temple/Trust property. 2. The relevant findings of the first appellate court are quoted herein below for ready reference: - ^^blds vykok izR;FkhZ@izfroknh us vius /kkjk 5 ifjlhek vf/kfu;e ds vkosnu esa Li”V :Ik ls Lohdkj fd;k gS fd fnuakd 01-05-05 ls 30-06-05 rd dks nks ekg dk fdjk;k tfj, pSd vnk fd;k x;k Fkk rFkk fnuk¡d 01-07-05 ls 30-08-05 dk fdjk;k Hkh pSd ds tfj, fnukad 04-07-05 dks bl fo’okl ds lkFk fn;k fd pSd dk Hkqxrku vihykFkhZ@oknh dks gks tk,xk] vkSj izR;FkhZ@izfroknh us fnuakd 05-07-05 dks vius [kkrs es vfrfjDr jkf’k Hkh tek djok nh] ysfdu cSad us pSd fnukad 05-07-05 dks vuknfjr dj fn;kA ftl rF; dks vihykFkhZ@oknh us izR;FkhZ@izfroknh ls Nqik dj j[kk] vU;Fkk izR;FkhZ@izfroknh }kjk rqjar bldk Hkqxrku dj fn;k tkrkA ftldh tkudkjh vihykFkhZ@oknh }kjk izR;FkhZ@izfroknh ds vkosnu /kkjk 151 lh-ih-lh- dk tokc izLrqr djus ij fnukad 17-02-06 dk gqbZ] ftl ij mDr jkf’k fnukad 28-02-06 dks tek djkbZ xbZ tks Lohd`r :i ls foyfEcr gS vkSj mi;qDruqlkj izR;FkhZ@izfroknh us vihy ds nkSjku fdjk;k /kkjk 13¼4½ jkt- ifjlj vf/kfu;e dh ikyuk esa tek ugh djk;k gS vkSj bl lac/k es ;g fu”df”kZr fd;k tk pqdk gS fd mi;ZqDr nsjh {kek fd, tkus ;ksX; ughA ;ksX; vf/koDrk vihykFkhZ dk ;g rdZ Hkh lgh gS fd iwoZ esa Hkh izR;FkhZ@izfroknh dk vkpj.k fdjk;k tek djkus esa O;frØe dk jgk gSA okn ds fopkj.k ds nkSjku Hkh nks ckj fdjk;k fu;fer tek djkus es pqd gqbZ gSA bl laca/k esa ;ksX; vf/koDrk vihykFkhZ@oknh }kjk izLrqr U;k; n`”VkUr 2002 ¼1½ vkj-lh-vkj- ,l-lh- 335 f’ko nŸk tkfM;k ojlsl xaxk nsoh esa jkt- ifjlj vf/kfu;e dh /kkjk 13¼4½¼5½¼6½ ds lac/k esa ekuuh; loksZPp U;k;ky; us ;g izfrikfnr fd;k gS fd fdjk,nkj dks vihy ds yafcr jgus ds nkSjku fdjk;k vnk djuk vFkok tek djkuk gksxkA ftldks ekurs gq, ekuuh; jkt-mPp U;k;ky; }kjk 2004 ¼2½ vkj-lh-vkj- jkt- 108 dsljh ey ojLkSl Hkokuh flag esa ;g izfrikfnr fd;k gS fd fdjk,nkj ls ;g vis{kk gS fd ;g /kkjk 13 ¼3½ ds rgr fu/kkZfjr vUrfje fdjk;k vihy ds nkSjku Hkh tek djk, vkSj tek ugh djkus dh fLFkfr es og izfrj{kk lekIr fd, tkus dk nk;h gSA mi;qZDr U;k; n`”VkUr esa izfrikfnr fl}kUr ls ;g Li”V gS fd vihy dks okn dh fujUrjrk ekuk x;k gS vkSj okn ds vuq:i gh fdjk,nkj dks vUrfje fu/kkZfjr fdjk;k jkt-ifjlj vf/kfu;e ds izko/kkuks ds vuqlkj djkuk gksxk vkSj gLrxr ekeys esa mi;qZDr fd, x, fofopu ds vuqlkj] ;g Lohd`r fLFkfr gS fd izU;FkhZ@izfroknh us fdjk;k vnk;xh es O;frØe fd;k gSA ftl ckcr U;k;ky; dks u rks fdjk;k tk (Sic! ½ djkus dh vof/k c<+kus dk vf/kdkj gS vkSj u gh djkus es gqbZ nsjh dks {kek djus dk vf/kdkjh gS tSlk fd ekuuh; mPpre U;k;ky; us jkt-ifjlj vf/kfu;e] 1950 ds ckcr 2003 Mh-,u-ts- ,l-lh- 180 ulh:nnhu ojlsl lhrk jke esa izfrikfnr fd;k gS] ftlls O;frØe ds vk/kkj ij csn[kyh ds fo:) izfrj{kk dk vf/kdkj lekIr fd, tkus ckcr vihykFkhZ@oknh dk vkosnu vUrxZr /kkjk 13¼5½ jkt- ifjlj vf/kfu;e Lohdkj ;ksX; gS vkSj rnuqlkj bl lac/k esa izR;FkhZ@izfroknh dh izfrj{kk dk vf/kdkj lekIr fd;k tkdj izR;FkhZ@izfroknh fdjk;k vnk;xh esa O;frØe ds vk/kkj ij csn[ky fd, tkus ;ksX; gSA rnuq:Ik ;g fcUnq vihykFkhZ@oknh ds i{k esa fu.khZr fd;k tkrk gSA^^ 3. The learned trial court had, however, earlier dismissed the suit of the plaintiff/respondent, Mahendra Prakash S/o Bhanwar Lal Sharma, by caste Brahmin, (Suit No.20/2001-Mahendra Prakash Vs. Motilal) and refused to grant eviction decree giving benefit of first default under Section 13 (6) of the Rajasthan Premises (Control of Rent and Eviction) Act, 1950 (for brevity, hereinafter referred to as 'Act of 1950'). The operative portion of the judgment and decree dated 14.05.2002 of the trial court is quoted herein below: - ^^oknh dk okn fo:) izfroknh vf/kfu;e dh /kkjk 13 ¼6½ ds vuqlkj izfroknh dks izFke O;frØe dk ykHk nsrs gq, [kkfjt fd;k tkrk gS pwafd izfroknh us 11 ekg dk fdjk;k oknh dks vnkdj fn;k gS blfy, fdjk;k izkfIr ckcr Hkh okn [kkfjt fd;k tkrk gSA [kpkZ i{kdkjku viuk viuk gd ogu dsjsaxsA mDrkuqlkj fMØh ipkZ eqfrZc gksA Sd/- ¼jktdqekj ‘kekZ vkj-ts-,l-½ vfrfjDr flfoy U;k;k/kh’k ¼d- [k-½ tks/kiqj ‘kgj] tks/kiqj^^ 4. Mr. Rajeev Purohit, learned counsel for the appellant/defendant submitted that findings of the first appellate are erroneous and the rent in question was regularly paid by the defendant/tenant. He submitted that instead of payment of such rent to the plaintiff/landlord, Mahendra Prakash, who was Pujari/trustee of the said temple/trust property, the rent was deposited with the Assistant Commissioner, Devasthan Department, Jodhpur, since the said temple property came to be registered as Public Trust with the Devasthan Department and under the orders of the trial court in a suit for declaration filed by S/Sh. Ram Gopal Sharma S/o late Sh. Banshilal Sharma, Bhanwarlal S/o late Sh. Banshilal Sharma and Nandlal S/o late Sh. Banshilal Sharma, against the State and the Devasthan Department, in which while passing an order on the Temporary Injunction Application, the learned Addl. Ram Gopal Sharma S/o late Sh. Banshilal Sharma, Bhanwarlal S/o late Sh. Banshilal Sharma and Nandlal S/o late Sh. Banshilal Sharma, against the State and the Devasthan Department, in which while passing an order on the Temporary Injunction Application, the learned Addl. District Judge No.3, Jodhpur on 27.01.2005 had dismissed the TI application filed by those plaintiffs and bound the Devasthan Department to collect the rent in respect of suit property in the said Ranawatji Ka Temple Trust property and keep the same in a separate account. The relevant and operative portion of the said order dated 27.01.2005 reads as infra: ^^vr% izkFkhZx.k }kjk izLrqr izkFkZuk i= vkns’k 39 fu;e 1 o 2 lifBr /kkjk 151 O;-iz-la- fujLr fd;k tkrk gS ijUrq vizkFkhZx.k dks bl gn rd ikcan fd;k tkrk gS fd os fookfnr lEifŸk ls izkIr lqnk fdjk;s dks Bkdqjth jk.kkorth izU;kl ds uke ls [kksys x;s cSad [kkrs es tek djkos o mDr jkf’k dks okn ds fuLrkj.k rd lqjf{kr j[kk tkosA Sd/- ¼iadt Hk.Mkjh½ vij ftyk U;k;k/kh’k la-3] tks/kiqj^^ Learned counsel for the appellant/defendant, Mr. Rajeev Purohit, therefore, submitted that there was no default in payment of rent and the decree under appeal deserves to be set aside. 6. Since there was involvement of Devasthan Department in the present case, and a suit for declaration also appears to have been filed by these plaintiffs and other family members, viz. Ram Gopal Sharma and others, which was however dismissed by the learned trial court of A.D.J. (FT) No.2, Jodhpur, namely, Suit No.90/2007-Ram Gopal Sharma & Ors. Vs. State of Rajasthan & Ors. on 30.08.2008, against which a first appeal under Section 96 of the CPC, 1908, being S.B.C.F.A. No.549/2008-Ramgopal Sharma & Anr. Vs. State & Ors. is pending adjudication for hearing in this Court and, therefore, the Assistant Commissioner, Devasthan Department, Jodhpur was summoned in the present case also, along-with relevant record vide previous order dated 27.01.2015, which is also quoted herein below for ready reference: - “Since, a eviction decree has been passed against the appellant-defendant, the defendant is in second appeal before this Court and the proceedings also indicate that the house in question, prima facie, is a Devasthan property and is situated at Shree Thakurji Ranawat Ji Ka Mandir, Hathi Ram Ka Oda, Jodhpur. The civil suit under Section 22 of the Rajasthan Public Trust Act filed against the Devasthan Department namely, Civil Original Suit No.90/2007 Ram Gopal Sharma & Ors. Vs. State of Rajasthan & Ors., in relation to the same house was dismissed by the learned Court of Additional District (Fast Track)-2, Jodhpur on 30.08.2008 against which, an appeal filed by Ram Gopal Sharma is said to be pending against the State of Rajasthan. Prima facie, since the house in question belongs to the Devasthan Department, but since an eviction decree is passed by the competent Court in respect of a house given on rent by one Bhanwar Lal in favour of plaintiff Mahendra Prakash who is the son of aforesaid Bhanwar Lal, therefore, let a notice be issued to the Assistant Commissioner, Devasthan Department, Jodhpur, who is directed to remain present before the Court to apprise the Court about the regular deposit of the rent of the house in question with the Devasthan Department by the defendant-appellant Moti Lal and also explain the status of Bhanwar Lal and plaintiff Mahendra Prakash, as to in what capacity eviction suit has been filed by them. The original record in relation to the said Mandir Property along with details of other eviction proceedings and recent photographs of the site be kept ready at the time of hearing by the Assistant Commissioner, Devasthan Department. List the matter on 18.02.2015.” 7. The Assistant Commissioner, Devasthan Department, Jodhpur, and the counsel for the Devasthan Department, Mr. Rajesh Choudhary, are present in the Court. They informed the Court that a public trust of the said Temple property has been registered under the provisions of Public Trust Act in the year 2004 and the rent is being collected from various tenants by them and the dispute between the Trustees viz. Ram Gopal Sharma and others, who are only Pujari/s in the said temple against the Devasthan Department is pending in the aforesaid first appeal before this Court in CFA No.549/2008. These trustees/landlord/plaintiffs are represented before this Court through Sh. O.P. Mehta and Sh. Jitendra Chopra, Advocates. 8. Ram Gopal Sharma and others, who are only Pujari/s in the said temple against the Devasthan Department is pending in the aforesaid first appeal before this Court in CFA No.549/2008. These trustees/landlord/plaintiffs are represented before this Court through Sh. O.P. Mehta and Sh. Jitendra Chopra, Advocates. 8. As far as the present eviction suit is concerned, in the present defendant's appeal, this Court does not find any substantial question of law to be arising and the findings of facts returned by the lower first appellate court of A.D.J. (FT) No.4, Jodhpur, about there being a default in payment of rent by the appellant/defendant are pure findings of facts, based on relevant record and appreciation of evidence led by the parties. If the defendant/appellant wanted to contend that the payment of rent instead of the alleged landlord/plaintiff/trustees, was being paid to the Assistant Commissioner, Devasthan Department, the burden of proof was squarely upon the defendant/appellant to produce all the relevant evidence on record before the first appellate court taking the recourse of Order 41 Rule 27 CPC; and satisfy the first appellate court that there was no default in payment of rent whatever. Having failed to do so, which the learned counsel for the appellant/defendant fairly admitted that no such documents were placed on record before the first appellate court, the findings, as rendered by the first appellate court, cannot be said to be perverse and this Court cannot entertain such submission at the stage of second appeal and verify as to whether payment of rent was regularly made by the defendant/tenant to either landlord/plaintiff or to the Assistant Commissioner, Devasthan Department. The findings of the first appellate court, as quoted above, clearly follows the Hon'ble Apex Court decisions in this regard, namely Shiv Dutt Jadiya Vs. Ganga Devi reported in 2002 (1) R.C.R. S.C. 335 and in the case of Nassiruddin Vs. Sita Ram Agarwal reported in 2003 DNJ (SC) 180. Thus, the provisions of Section 5 of the Limitation Act, do not apply in these cases under the Rent Control Law as held by Hon'ble the Supeme Court and, therefore, the delay in payment rent was fatal for the defendant-tenant and the defence of tenant was rightly struck off under Section 13 (5) of the Act of 1950, resulting in the impugned eviction decree. 9. This Court in SBCSA No.125/2011-Smt. Kamla Devi Surana Vs. 9. This Court in SBCSA No.125/2011-Smt. Kamla Devi Surana Vs. Madan Lal Harit, decided on 14.09.2012, following the decision of the Apex Court in the case of Nassiruddin (supra), has held as under: “8. Thus, the legal position is settled beyond the pale of doubt that the delay in deposit of rent as fixed by the trial court provisionally either under Section 7 of the Act or under Section 13(3) of the Act, cannot be condoned be that of one day, one month or more as Section 5 of the Limitation Act does not apply in such cases and as held by the Hon'ble Supreme Court in Nasiruddin & ors. vs. Sita Ram Agrawal (supra) followed by this Court consistently, the delay in deposit of rent in the present case, was bound to result in the eviction decree. 9. Since it is well settled that eviction decree on only one ground can be maintained, this Court is of the opinion that the eviction decree was rightly granted by the learned trial Court on the ground of non-payment of provisional rent determined by the learned Court below within stipulated time and has been wrongly reversed by the learned first Appellate court in view of the aforesaid decision of this Court as well as Hon'ble Apex Court. Consequently, this Court does not consider it necessary to answer other substantial questions of law framed by the coordinate Bench and answering the question No.2 in favour of plaintiff – landlady, the present second appeal of the plaintiff – landlady deserves to be allowed. 10. The Government servant (defendant tenant) in whose favour present tenancy was given way back in the year 1978 on 23.12.1978 has withheld the possession of suit premises at paltry sum of Rs.75/- only so far for last 34 years. Sheer length of litigation through long chain of court procedures has enured to the benefit of defendant -tenant, though in law, he was not entitled to retain such possession of suit property. Though this Court has not gone into other substantial questions of law, the findings of learned trial Court that he was when transferred from Rajgarh to Churu, which is said to be about 70 kms. away from the suit premises and also that the house had become unfit for human habitation are in favour of the plaintiff landlord. Though this Court has not gone into other substantial questions of law, the findings of learned trial Court that he was when transferred from Rajgarh to Churu, which is said to be about 70 kms. away from the suit premises and also that the house had become unfit for human habitation are in favour of the plaintiff landlord. In these circumstances this Court is of the opinion that enhanced mesne profit payable by the defendant tenant deserves to be paid from the date of impugned order of the appellate Court i.e. 12.1.2001. 11. Consequently, the present second appeal of the appellate – landlady – plaintiff is allowed and the question No.2 framed above is answered in favour of the plaintiff landlady and against the tenant – defendant. The judgment and eviction decree of the learned trial Court is restored. Costs to be paid by the defendant – tenant to the plaintiff – landlady quantified at Rs.5000/- only.” 10. It is well settled legal position that even a single day's delay in payment of rent cannot be condoned by the court and the provisions of Section 5 of the Limitation Act do not apply in such case. The first appellate court in the present case, has also found that during the pendency of the appeal also, there was a default in payment of rent by the defendant/appellant in contravention of Section 13 (4) of the Act of 1950. Not only this, the cheque for payment of rent for the period 01.07.2005 to 30.08.2005 issued on 04.07.2005 by the defendant got dishonoured on 05.07.2005. All these findings of facts based relevant record and the same cannot be said to be perverse and even a single day's delay in payment of rent and other delays in payment of the same cannot be condoned as per law laid down by the Hon'ble Apex Court and such findings of facts are binding on this Court. In the considered opinion of this Court, no substantial question of law arises in the present second appeal filed by the tenant and, the same is liable to be dismissed. 11. As far as the question of handing over the vacant and peaceful possession of the suit premises by the defendant/tenant is concerned, the findings of the learned trial court of A.D.J. No.2, Jodhpur in the civil suit for declaration filed by other plaintiffs, Ram Gopal Sharma and others, viz. 11. As far as the question of handing over the vacant and peaceful possession of the suit premises by the defendant/tenant is concerned, the findings of the learned trial court of A.D.J. No.2, Jodhpur in the civil suit for declaration filed by other plaintiffs, Ram Gopal Sharma and others, viz. Civil Suit No.90/07, in para 25 of the judgment, being relevant are quoted herein below for ready reference: - ^^25- mDr lHkh ekeyks es lEifŸk oknh ds uke jktLo fjdkMZ esa p<+h gqbZ FkhA viuh futh lEifŸk esa og /keZ’kkyk ;k eafnj cuk dj jg jgk gS] rks bls futh izU;kl ekukA tc fd gLrxr ekeys ds lqfHkUu RkF;ks] ifjfLFkfr;ksa vuqlkj oknxzLr LkEifŸk oknhx.k dks futh LokfeROk dh muds }kjk Ø; o fufeZr ugh gS] u gh ;g lEifŸk mUgsa vius iwoZtksa ls izkIr gqbZ gSA dksbZ lEifŸk futh gS vFkok lkoZtfud U;kl dh ;g ml lEifŸk ds iz;kstu ij fuHkZj djrk gS A tgk¡ rd oknhx.k dk dguk fd oknxzLr LkEifŸk mUgsa ca’khyky }kjk fu”ikfnr olh;rukeksa ls izkIr gqbZ] bl lac/ka esa tSlk fd iwoZ esa mYysf[kr fd;k tk pqdk gS fd oknxzLr lEifr esa egUr ek/konkl dks Bkdqj th jkt xksiky th dh lsok iwtk djus o bl eafnj esa vk, p<+kos ls viuh vkthfodk pykus ds vfrfjDr lEifŸk esa dksbZ gd vf/kdkj ugh Fkk] ,slh fLFkfr es fcuk fdlh vf/kdkj es egUr ek/konkl o ca’khyky }kjk fu”ikfnr fd;s x;s olh;rukeksa ls oknhx.k dks dksbZ LokfeRo izkIr ugh gksrk gSA ,slh fLFkfr esa gLrxr izdj.k esa lqfHkUu rF;ksa o ifjfLFkfr;ksa es oknhx.k dh vksj ls izLrqr mijksDr ekuuh; U;kf;d n`”VkUrksa esa izfrikfnr fl)kUrksa ls oknhx.k dks dksbZ ykHk izkIr ugh gksrk gSA ,slh fLFkfr esa l{ke vf/kdkfjrk nsoLFkku foHkkx }kjk iwoZ esa oknxzLr lEifŸk ds lac/k esa dh xbZ dk;Zokgh dks fUkjLr djus dk dksbZ fof/k lEer o U;k; laxr vk/kkj U;k;ky; ds le{k ugha gSA blh vuq:Ik oknxzLr lEifr oknhx.k dh futh LokfeROk dh lEifŸk ugh gksuk ik;k tkrk gSA ifj.kker% rnuqlkj mDr lHkh fook|d r; fd;s tkrs gSA^^ 12. From the aforesaid findings, prima-facie, it is clear that presently there is no right, title and interest of the plaintiffs as landlord, Ram Gopal Sharma and others and present plaintiff, Mahendra Prakash being the son of Bhanwarlal Sharma, one of the plaintiffs in that suit, who are also family members of the present plaintiff-Mahendra Prakash as well, is a matter of adjudication in the CFA No.549/2008-Ramgopal Sharma & Ors. Vs. State & Ors., which may be decided by this Court in due course. As of now, the judgment of the learned trial court stands against them and they are only Pujari/s in the said temple/trustees and it is only the Assistant Commissioner, Devasthan Department, Jodhpur, who has the paramount title and is expected to manage the affairs of the said public trust and, therefore, is found to be entitled to have the possession of the suit property from the defendant/tenant. However, such handing over of the possession to the Assistant Commissioner, Devasthan Department, Jodhpur shall remain subject to the final decision of the First Appeal No.549/2008-Ramgopal Sharma & Ors. Vs. State & Ors., referred to supra, by this Court. 13. Consequently, the present second appeal filed by the appellant/defendant/tenant, Moti Lal S/o Sh. Narayan Sunar, is dismissed with no orders as to costs. 14. The appellants/defendants/tenant shall hand over the peaceful and vacant possession of the suit premises to the Assistant Commissioner, Devasthan Department, Jodhpur on or before 30.09.2015 and shall pay mesne profit @ Rs.1,000/-per month commencing from Apirl, 2015 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the Assistant Commissioner, Devasthan Department, Jodhpur, also and in case there is any default in payment of mesne profit, the period granted for eviction shall stand reduced and the decree of eviction would become executable forthwith. The appellant/defendant/tenant shall also clear all the arrears of rent and mesne profit and pay the same to the Assistant Commissioner, Devasthan Department, within three months from today, otherwise the same will bear interest @ 9% per annum. The appellant/defendant/tenant shall also clear all the arrears of rent and mesne profit and pay the same to the Assistant Commissioner, Devasthan Department, within three months from today, otherwise the same will bear interest @ 9% per annum. The appellant/tenant shall also not sub-let, assign or part with the possession of the suit shop or house any part thereof in favour of any one else and would not create any third party interest in the same during the aforesaid period and if it is so done, the same would be treated as void and such third parties will also be bound by this decree. The appellant-defendant shall furnish a written undertaking incorporating the aforesaid conditions in the trial court within three months from today, and one copy thereof along with affidavit, in this Court. It is made clear that if the peaceful and vacant possession of the suit premises is not handed over to the Assistant Commissioner, Devasthan Department, Jodhpur on or before 30.09.2015 or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the Assistant Commissioner, Devasthan Department, Jodhpur shall also be entitled to invoke the contempt jurisdiction of this Court. A copy of this judgment be sent to both the learned courts below and both the parties forthwith.