Suresh and Others vs Shri Hanuman Ji Mandir Trust, Inside Kishanpole, Udaipur

Dr. Vineet Kothari, J.—1. Having lost before the two Courts below concurrently, the present second appeal under Section 100 of the Code of Civil Procedure has been filed by the appellants-defendants-tenants, in a suit for eviction in respect of the suit property in question, viz. a shop situated at Inside Kishanpole, Udaipur, against the judgment and decree dated 28.07.2000 passed by the learned Additional District Judge No. 3, Udaipur in Original Civil Appeal No. 126/1999 (5/1998) "Suresh & Anr. v. Shri Hanumanji Mandir Trust" by which, the learned First Appellate Court had dismissed the appeal of the defendants and affirmed the impugned judgment and eviction decree dated 06.12.1997 passed by the learned Civil Judge (Junior Division) & Judicial Magistrate City (South), Udaipur in Civil Original Suit No. 248/1997 "Hanuman Mandir Trust v. Suresh & Anr." by which, the learned Trial Court had decreed the eviction suit of the plaintiffs in respect of the trust property, as mentioned above.

After framing of the relevant issues arising out of the plaint and written statement and after recording of the evidence, the learned Trial Court had only decreed the suit (No.248/1997) of the plaintiffs on 06.12.1997. The relevant portion of the findings and final order of the learned Trial Court is quoted below for ready reference:--

Being aggrieved by the judgment and decree dated 06.12.1997 of the learned Trial Court, the defendants-tenants filed the first appeal before the First Appellate Court of learned Additional District Judge No. 3, Udaipur, namely, Original Civil Appeal No. 126/1999 (5/1998) "Suresh & Anr. v. Shri Hanumanji Mandir Trust" which was also dismissed on 28.07.2000 and impugned judgment and decree dated 06.12.1997 of the learned Trial Court was affirmed. The relevant portion of the findings and the final order of the learned First Appellate Court for affirming the impugned judgment and decree of the learned Trial Court is quoted herein below for ready reference:--

Being aggrieved by the judgments and decrees passed by both the learned Courts below, the appellants-defendants have filed the present second appeal in this Court on 11.09.2000 and while admitting the present second appeal on 24.01.2003, the following substantial question of law was framed by this Court:--

"(i) Whether despite plaintiff stating the trust to be registered, the court was justified in framing issue No. 3 in negative form and burden was on the plaintiff to prove whether plaintiff has right to file the suit in respect of religious trust? "

Today, the learned counsel, Mr. R.R. Nagori, Senior Advocate with Mr. Alkesh Agarwal, appearing for the appellants-defendants submitted that the appellants-defendants have not contacted them despite sending registered A.D. Letters. The learned counsels have placed on record the original envelopes sent to the appellants on their address and from which, it appears that the remark has been written on the front side of envelopment itself sent to the appellant-Suresh Sharma whereas, on the back side of the envelopment sent to another appellant-Jagdish Sharma, the remark has been written. The two envelopes and the two letters were sent by the learned counsel to the appellants-defendants at different address, details of which are as under:--

"(i) Shri Suresh Ji Sharma S/o Late Shankar Lal Ji Sharma Chai Ki Dukan (Lalita Tea Store) Hanumanji Mandir Trust, Kishanpole Udaipur (Raj.)

(ii) Shri Jagdish Ji Sharma S/o Late Shankar Lal Ji Sharma House No. 1042-43 Sector - 12 Sawina Petrol Pump Ke Pichhe Sawina Khera Udaipur (Raj.)"

In the aforesaid circumstances, the learned counsels pleaded that they have no instructions in the matter.

Neither the appellants-defendants are themselves present in the Court nor they have made any alternative arrangement for the appearance of any other Advocate before this Court, as no other counsel appeared on their behalf.

On the other hand, the learned counsel, Mr. Suresh Shrimali and Mr. Rishabh Vyas, appearing for the respondent-plaintiff-landlord submitted that in pursuance of the previous order dated 01.03.2016 for giving the present status of the suit shop, the affidavit dated 07.03.2016 of Shri Leeladhar S/o late Shri Prabhudas Talreja, President of the plaintiff-Hanuman Mandir Trust, Udaipur has been filed in which, it has been stated that the suit shop in question has not been vacated by the defendants-tenants and the possession has not been handed over to the plaintiff-Trust but it appears that the suit shop in question has been sublet by the defendants to one Shabir Khan @ Guddu Bhai S/o Allahnoor (Tangewala) in which, the said subtenant is carrying on the business of tent house in the name and style of "Khushboo Tent House". The learned counsel also submitted that both the learned Courts below have decreed the suit of the plaintiff-Trust on the ground of material alteration in the suit property under Section 13(1)(c) of the Rajasthan Premises (Control of Rent & Eviction) Act, 1950 (''the Act of 1950''). The affidavit dated 07.03.2016 along with its annexures (Photograph of the suit shop in question and the visiting card of Khushboo Tent House) are taken on record.

The respondent-plaintiff-landlord-Trust has also filed an application (IA No. 111/2015) on 24.09.2015 with the averments that the defendants-tenants have not paid any rent since July, 2006 and, therefore, they may be directed to pay the due arrears of rent. The learned counsel, Mr. Suresh Shrimali, appearing for the respondent-plaintiff-Trust submitted that on this ground of default in payment of rent also, the eviction decree deserves to be upheld by this Court and the substantial question of law, as framed and quoted herein above, also deserves to be answered in favour of the respondent-plaintiff-landlord, while dismissing the present second appeal of the appellants-defendants.

Having heard the learned counsels for the parties and upon perusal of the impugned judgments and decrees of both the learned Courts below as also the application (IA No. 111/2015) and the Affidavit dated 07.03.2016, this Court is of the opinion that the eviction decree in the present matter deserves to be maintained, as it is the settled legal position that anyone of the Trustees of the Trust can file the suit on behalf of the Public Trust. On perusal of the record of the case, it is noticed that the plaintiff-Trust is a public trust and the plaintiff-Trust had produced the Trust Deed which was marked as Exhibit-1A before the learned Trial Court. This Court is also satisfied that the plaintiff has established the grounds of eviction under Section 13 of the Act of 1950 of material alteration in the suit property. So far as these findings of both the learned Courts below are concerned, this Court is of the opinion that the findings, as recorded by the Courts below, after correct and proper appreciation of all the evidence, oral and documentary, led by the parties before them, are the findings of facts and do not require to be interfered with by this Court in the present second appeal.

More so, it is noticed from the application (IA No. 111/2015) dated 24.09.2015 that the appellants-defendants-tenants have not paid any rent for the suit shop in question since the month of July, 2006 and it also appears from the Affidavit dated 07.03.2016 that the defendants have sublet the suit shop in question to one Shabir Khan @ Guddu Bhai and the said subtenant is carrying on the business of tent house in the name and style of "Khushboo Tent House", as is evident from the photograph and the visiting card filed along with the aforesaid affidavit.

In view of the aforesaid, the present second appeal filed on behalf of the appellants-defendants-tenants deserves to be dismissed and the substantial question of law deserves to be answered in favour of the respondent-plaintiff-landlord.

Accordingly and in view of the above, the present Second Appeal filed by the appellants-defendants-tenants-Suresh & Jagdish both sons of Shankar Lal Sharma is dismissed and the substantial question of law is answered in favour of the respondent-plaintiff-landlord Trust and against the appellants-defendants-tenants. No costs. A copy of this order be sent to both the Courts below and to the parties concerned forthwith.

In the circumstances of the case, it is directed that the appellants-defendants-tenants or the present occupant of the suit premises shall hand over the peaceful and vacant possession of the suit shop in question, as mentioned above, to the respondent-plaintiff-landlord Trust on or before 30.09.2016 and shall pay mesne profit @ Rs. 2,000/- per month (Rupees Two Thousand per month only) commencing from the month of March, 2016 and will further continue to pay the mesne profit each month by 15th day of the next succeeding month or in advance to the respondent-plaintiff-landlord Trust also and in case there is any default in payment of mesne profit, the period of eviction, as mentioned above, shall stand reduced and the decree of eviction would become executable forthwith. The appellants-defendants-tenants shall also clear all the arrears of rent and mesne profit and pay the same to the respondent-plaintiff-landlord Trust within three months from today, otherwise the same will bear simple interest @9% per annum. The appellants-defendants-tenants shall also not further sub-let, assign or part with the possession of the suit premises, as mentioned above, or 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 already done or now may be done, the same would be treated as void. The appellants-defendants-tenants shall furnish a written undertaking incorporating the aforesaid conditions in the Trial Court within three months 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 respondent-plaintiff-landlord-Trust on or before 30.09.2016, as mentioned above, from today or mesne profits are not paid as directed above, besides the expeditious execution of the decree in normal course, the respondent-plaintiff-landlord-Trust shall also be entitled to invoke the contempt jurisdiction of this Court.