Kamadhenu Cables and Another vs Mahanthara Mutt Trust

V. Gopala Gowda, J.—In both these Regular First Appeals the plaintiff is common in the Trial Court and the appellants were the defendants in each suit respectively. The suits filed by the plaintiff for ejectment of the defendants were decreed. Aggrieved by the same the defendants have filed these two appeals.

It is the case of the defendants that plaintiff has no locus standi either to issue quit notice to terminate the tenancy or to institute the suits against the defendants for ejectment and other reliefs in respect of the suit schedule premises. It is further contended by the learned Sr. Counsel Mr. V. Tarakaram, that since there is no resolution passed by the plaintiff trust for institution of suits against the defendants in respect of the suit schedule premises, the suits are liable to be dismissed as not maintainable in law Mr. V. Tarakaram, learned Senior Counsel for the Defendants/Appellants pointing-out the recitals of Ex. P-1 contends that it is not a Trust Deed. In support of his contention he has relied upon the decision reported in Rabindra N. Das Vs. Santosh Kumar Mitra and Others, wherein it is held as under:

"D) Deed-Construction-Trust deed-Principles governing construction indicated.-(Trusts Act (1882), Section 3).

The principles governing the construction of a trust deed are (1) the entirety of the document must be read as a whole (2) the document must be so read as to give effect to the predominant intention of the settlor the maker of the document and (3) the document must be construed in such a manner as to make it workable and operative."

He further relied upon the decision reported in Chief Controlling Revenue Authority Vs. Manager, State Bank of Mysore and Others, to contend that the property is not a trust property, in support of the above contention he has also placed reliance upon the decision of the Apex Court reported in H.M.T. House Building Co-operative Society Vs. M. Venkataswamappa and others, In support of the contention that resolution of the plaintiff Trust is necessary to institute suit, the learned Senior Counsel cited the decision Yuvaraja Srikantadatta Narasimharaja Wodeyar Vs. N.V. Mahadevappa (Deceased) by L.Rs and Others, and another decision in the case reported in Parsee Zoroastrian Anjuman, By Its Trustees E.K. Palia and Anr. v. Chief Secretary, Govt. of Mysore Bangalore, 1947 Mys. L.J vol. XXVIII 1 Further learned Counsel for defendants has placed reliance upon the decision of Mysore High Court in the case of K.M.A. Venkiah & Bros, v. T.V.R. Gupta, 1941 Mys. L.J. VOL.XX 194 in support of the contention that the plea regarding maintainability of the suits not urged in the written statement do not preclude the defendants to urge the same in these Appeals.

Regarding the maintainability of the suits, the defendants have not raised any plea in this regard before the Trial Court. Therefore, learned Counsel for the plaintiffs has rightly contended that it is not open for them to raise such a plea for the first time in the appeals in support of this legal contention he has placed reliance upon the decisions of the Apex Court reported in Pathumma and Others Vs. Kuntalan Kutty Dead by Lrs. and Others, , The Bahrein Petroleum Co. Ltd. Vs. P.J. Pappu and Another, , The Special Secretary to Government of Rajasthan and Others Vs. Vedakantara Venkataramana Seshaiyer and Others, , Hrishikesh Das Vs. Sm. Khantamani Dasi and Others, The scope of the first appeal is to consider whether the judgment and decrees of the trial Court are legal, valid and perfect with reference to the pleadings and evidence on record. An issue not raised and could not be raised for want of pleadings of the defendants regarding the maintainability of the suits that the Trust deed is not registered and Trust is not created and resolution is not passed by the plaintiff Trust to issue quit notice and institute suit and therefore the same could not have been considered by the Trial Court, hence the same cannot be entertained in these appeals particularly having regard to the undisputed fact that they have specifically admitted in their replay notice, written statement and affidavits filed by way of evidence to the effect that they are the tenants under the plaintiff Trust and they have been paying rents to it towards the suit schedule premises and therefore the defendants are estopped urging contrary legal contentions in these Appeals and this Court cannot consider the same in view of the decisions of the Apex Court and various High Court referred to supra upon which the learned Counsel for plaintiff has rightly placed reliance for not accepting the grounds by the Sr. Counsel on behalf of the defendants regarding the maintainability of suits, Only the legality, validity and correctness of the judgments and decrees appealed as such, will have to be considered and not beyond that. Hence, the contention raised in this regard cannot be entertained.

The defendants have admitted that they are the tenants of the suit schedule premises. They have even admitted payment of rents to the plaintiff. When the jural relationship is admitted, the tenant cannot dispute the right or ownership of the landlord is the legal position settled by the Apex Court and this Court in catena of cases. If the ownership or jural relationship of landlord and tenant is disputed by the tenants, there was no occassion for them to pay the rents to the plaintiffs in respect of the suit schedule premises. Having admitted the important aspects of the case namely the jural relationship between the parties when the plaintiff has invoked its statutory right u/s 111 of the Transfer of Property Act for determination of tenancy rights of the defendants in respect of the suit schedule premises, it does lie in the mouth of the defendants to plead contrary in these Appeals and pray for setting aside the impugned judgment and Decree. Therefore, the above legal contention urged in these Appeals by the learned Sr. Counsel are wholly untenable, hence the same cannot be accepted by this Court.

The contention of Mr. V. Tarakaram that Ex. P-1 is not trust deed and the premises in question are not trust properties, cannot be countenanced in law having regard to the undisputed fact of acceptance of their relationship with the plaintiff as tenants in respect of the suit schedule premises. Whether Ex. P-1 is a Trust Deed or not and whether the premises are not trust properties, the fact remains that defendants have categorically admitted that they are tenants under the plaintiff is the undisputed fact and that is why they have paid rents to it in respect of the suit schedule premises. Therefore, the decisions relied upon by the learned Sr. Counsel in support of the same will not render any assistance to the defendants as the fact situation of these cases and those cases are entirely different and therefore the same are not applicable to the fact situation.

The Plaintiff has determined the tenancy of the defendants in respect of the suit schedule premises by getting issued valid quit notice. Despite that, the defendants did not vacate the premises in their occupation which is their statutory obligation as required u/s 108(q) of the T.P. Act, which provision has been interpreted and laid down the law to the above effect in the decision reported in Raptakos Brett & Co. Ltd. v. Ganesh Property, AIR 1998 SC 3085. Therefore, the Trial Court has rightly appreciated the undisputed facts and legal evidence on record, decreed the suits and ordered for enquiry for mesne profits payable by the defendants in respect of the suit schedule premises, as they did not comply with the demand made in the quite notice by vacating and delivering vacant possession of the suit schedule premises to the plaintiff. The findings and reasons recorded on the contentious issues by the Trial Court are based on proper appreciation of the pleadings, oral and documentary evidence and the law on the relevant issues that arose for its determination. The same does not warrant interference. Therefore, these Regular First Appeals filed by the defendants are devoid of merit and liable to be dismissed.

Accordingly, the appeals are dismissed. The defendants/ Appellants are granted six months time from today to vacate and deliver vacant possession of the premises in their occupation to the plaintiff. Time granted is subject to the condition that they shall pay the occupancy charges fixed by the Trial Court regularly and file Affidavits in two weeks by giving an undertaking to the effect stating that they would vacate and deliver the possession of the premises immediately after the stipulated time to the plaintiff without inducting third party in possession of the suit schedule premises. If there is any violation of these conditions, the time granted will not enure to the benefit of the defendants and the plaintiff will be at liberty to execute the decrees and take possession of the suit schedule premises.