Parvati Devi vs Thakurji Maharaj Through Mutvalli Ramnath

Manoj Misra, J.—Heard Ms. Poonam Srivastava for the petitioners and Sri Anupam Anand for the respondent.

The present petition has been filed against the order dated 9.10.2012 passed by Civil Judge (SD)/Judge Small Cause, Badaun and order dated 4.2.2017 passed by Special Judge (EC Act)/Additional District Judge, Badaun in SCC Suit No. 14 of 1996 and SCC Revision No. 90 of 2012 respectively.

A perusal of the record would reveal that SCC Suit No. 14 of 1996 was instituted by Thakur Ji Maharaj through its mutwalli Jagannath Prasad against Natthu (Predecessor in interest of the petitioners) for arrears of rent and eviction from suit property. The plaint case was that the plaintiff was the owner/landlord; that owner/landlord was deity Thakur Ji Maharaj therefore the accommodation was out of purview of U.P. Act No. 13 of 1972 by virtue of section 2(bb) read with section 3(s) of U.P. Act No. 13 of 1972 (herein after referred to as the Act).; that Jagannath was its mutwalli; and the defendant was tenant at the rate of Rs. 12.50 per month. In the plaint, it was alleged that the defendant had been a defaulter in payment of rent since January 1988 up to 31.8.1996 and had also not paid taxes payable; and that he had destroyed chhajja of the shop thereby making material alteration which disfigured the property. It was also alleged that the defendant had sublet the premises. It was further alleged that by a written notice sent by registered post on 10.9.1996 the tenancy was terminated and arrears of rent was also demanded for the period 1.1.1988 to 31.8.1996 but, despite service of notice, the defendant neither handed over possession nor paid the arrears.

The defendant contested the suit claiming that it was not instituted by the mutwalli of Thakur Ji Maharaj; that the notice terminating tenancy was not duly served; that rent had been deposited under section 30 of the Act; that no material alteration was made in the premises and that the chhajja had fallen on its own during the rains in the year 1995; and that there was no subletting.

On the pleadings of the parties, various points for determination were framed and thereafter the trial court returned finding that there was landlord tenant relationship between the plaintiff and the defendant; that Jagannath Prasad was found to be one of the joint mutwalli of Thakur Ji Maharaj in proceedings of O.S. No. 52 of 1981, out of which arose Civil Appeal No. 9 of 1992, therefore had right to institute suit on behalf of the deity/plaintiff; and that the notice terminating tenancy was duly served on the defendant by refusal of registered envelop, which was sent at the correct address of the defendant. Refusal was evident by endorsement of the postman concerned that the addressee had refused to accept the postal article. As regards deposit under section 30 of the Act, the court observed that the said deposit would not enure to the benefit of the defendant because after service of notice and institution of the suit the rent ought to have been deposited in the court where the suit was instituted. The court however found that the plea in respect of material alteration in the suit property could not be established. Likewise, subletting could also not be established. However, upon finding that there was valid termination of tenancy and that U.P. Act No. 13 of 1972 was not applicable and the tenant was also found to be in arrears, the suit was decreed. Against the decree passed by the trial court, revision was filed. The revisional court has also affirmed the decree passed by the trial court after dealing with various aspects raised by the revisionist.

Learned counsel for the petitioners has assailed the judgement and decree passed by the courts below on the ground that the endowment/trust deed dated 16.10.1922 provided that named trustee/mutwalli were to continue during their lifetime and upon their death, their eldest son would be mutwalli and therefore as there were three mutwalli appointed by the trust deed whereas the suit was instituted at the instance of one mutwalli, Jagannath Prasad, and the notice was also issued under his instruction only, there was neither valid institution of the suit nor there a valid notice terminating tenancy, accordingly, the decree passed by the court below is unsustainable in law.

Learned counsel for the respondent has taken the court through the findings returned by the trial court as well as the revisional court to demonstrate that Jagannath Prasad was recognised as one of co-mutwalli of Thakur Ji Maharaj in civil proceedings and, admittedly, Ram Nath was his son who was impleaded after death of Jagannath Prasad for the purpose of pursuing the suit on behalf of Thakur Ji Maharaj. It was submitted that there is nothing on record to show that the other comutwalli, if any, had raised any objection to the institution of the suit or continuing of proceeding against the petitioners-tenant and, therefore, on this ground, the decree in favour of Thakur Ji Maharaj cannot be nullified. It has been submitted that once it is proved on the record that there was a valid termination of tenancy by service of notice under section 106 of the Transfer of Property Act and that the Act was not applicable to the premises in question by virtue of section 2(bb) read with section 3(s) of the Act, the eviction decree passed by the courts below cannot be faulted.

I have given thoughtful consideration to the submissions of learned counsel for the parties and have carefully perused the record. In so far as the findings returned in respect of default and service of notice upon the defendant is concerned, no serious challenge has been laid by the learned counsel for the petitioners and therefore this Court finds no good reason to discuss the said findings. The main ground taken by the learned counsel for the petitioners to assail the impugned judgement and order is that in absence of signing by all the three mutwalli, the plaint, the institution of the suit as well as the notice terminating tenancy, would be bad in law.

The aforesaid contention of learned counsel for the petitioners cannot be accepted because nothing could be shown to demonstrate that there existed any term in the trust deed that all action on behalf of deity had to be taken by all the mutwalli jointly. No doubt the trust deed did enable existence of multiple mutwalli but it did not restrict the power of a co-mutwalli to take an action in the interest of deity. In the instant case, the suit had been instituted by the deity through one of its mutwalli, namely, Jagannath Prasad whose right had been recognised in civil proceedings. The trust deed provided that on death of any mutwalli, his eldest son would be a mutwalli provided he does not suffer from any disqualification. It has not been shown that any challenge was laid that Ram Nath, who was allowed to pursue the case on behalf of the deity on death of Jagannath, was not the eldest son of Jagannath who had instituted the suit on behalf of the deity. There is also nothing to show that Ram Nath suffered from any disqualification. Under the circumstances, once it is established that Jagannath Prasad was one of the co-mutwallis and had instituted the suit to secure the interest of deity and thereafter his son got substituted and further as there was nothing on record to show that any other co-mutwalli had objected to the proceeding initiated by them, neither the notice nor the suit at the behest of the deity by any one of the co-mutwallis could be said to be bad in law. The courts below therefore were legally justified in holding that the suit was maintainable and did not suffer from any legal infirmity.

Under the circumstances, in view of concurrent findings returned by the courts below, this Court finds no good reason to interfere with the judgement and decree passed by the courts below.

At last, learned counsel for the petitioners prayed that some time may be allowed to the petitioners to vacate the premises.

In view of the discussion made herein above, this Court is of the view that no good ground has been shown to interfere with the judgement and decree passed by the courts below therefore the prayer to set aside the impugned judgement and decree/order is rejected. However, considering that granting reasonable time to the tenant petitioners to vacate the premises would meet the ends of justice, this petition is disposed of by providing that the petitioners shall not be evicted from the suit premises till 30.6.2017 provided they deposit the entire decretal amount in the trial/execution court by 15.4.2017 and further deposit the damages at the rate allowed by the trial court payable up to 30.6.2017 by the aforesaid date and in addition to above furnish an undertaking by 15.4.2017 that they shall handover peaceful and vacant possession of the premises in dispute to the decree holder by 1.7.2017. In case any such undertaking is not furnished or the decretal amount is not deposited, within the period provided herein above, the landlord-respondent would be entitled to execute the decree forthwith. In case after furnishing of undertaking as provided herein above, the premises is not vacated and peaceful possession is not handed over to the decree holder by 1.7.2017, not only that the petitioners shall be liable to eviction through execution proceeding but it shall also be open to the decree holder to initiate contempt proceeding against the petitioners.

With the aforesaid direction/observation, the petition is disposed of.