Dismissed

Prakash Chandra and Others v. Krishna Kumar and Others

Allahabad HC11 Jan 2019WRIA/13412/2011

Case brief

AI extract

What is this about?

Two writ petitions by tenants of adjacent shops challenged release orders under Section 21(1)(a) of the U.P. Act No. 13 of 1972. The Court held the 1925 Will created no trust and only a pious obligation, upheld the landlord's title and bona fide need, and dismissed the petitions while granting time to vacate.

What did the court decide?

Writ petitions dismissed; landlord to pay Rs.12,000 as compensation; tenants to vacate both shops within one month and pay damages of Rs.5,000 per month per shop until delivery of possession.

Prakash Chandra and Others Vs Krishna Kumar and Others — Landlord and Tenant | Allahabad HC (2019)

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A.F.R. Judgment Reserved on 20.04.2018 Judgment Delivered on 11.01.2019

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Case :- WRIT - A No. - 13412 of 2011 Petitioner :- Prakash Chandra And Others Respondent :- Krishna Kumar And Others Counsel for Petitioner :- Swapnil Kumar Counsel for Respondent :- Ashish Agarwal

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WITH

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Case :- WRIT - A No. - 16929 of 2011 Petitioner :- Suresh Chand And Others Respondent :- Krishna Kumar Counsel for Petitioner :- A.K. Savita, A.K. Srivastava, G.P. Mishra, V. Singh Counsel for Respondent :- Ashish Agrawal, Ankush Tandon Hon'ble Mrs. Sangeeta Chandra, J.

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These two writ petitions are being taken together by this Court as the issue involved is the same with regard to two shops adjacent to each other i.e. Shop No. 155 and 156 situated at Sabitganj Road, Mohalla Kuncha Sheeshchand, District Etawah.

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The petitioners in Writ Petition No. 13412 of 2011 Prakash Chandra, Alok Chandra, Ramesh Chandra and Mahesh Chandra are all sons of late Basant Lal. They have filed this writ petition along with their two sisters namely Chandra Prabha and Chandra Shree, challenging the judgment and order dated 25.04.2009 passed by the Prescribed Authority/Civil Judge, (Senior Division), Etawah and the judgment and order dated 11.02.2011 passed by the Additional District Judge rejecting the Rent Appeal No. 06 of 2009 in P.A. Case No. 19 of 2003.

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Writ Petition No. 16929 of 2011 has been filed by Suresh Chand and Rajesh Kumar both sons of Sone Lal along with their sister-in-law, widow of one Rajiv kumar (also the deceased son of Sone Lal), against the judgment and order

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dated 07.02.2009 passed by the Prescribed Authority/Civil Judge (Senior Division), Etawah in P.A. Case No. 20 of 2003 (Krishna Kumar vs. Smt. Shanti Devi & Others) and the judgment and order dated 11.02.2011 passed by the Additional District Judge, Etawah in Rent Appeal No. 04 of 2009.

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It is the case of the writ petitioners that their fathers Basant Lal & Sone Lal were initially tenants of the two shops situated adjacent to each other.

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The respondent-Krishna Kumar alleging himself to be the landlord of the two shops in question filed an application for release of the two shops on the ground of personal need, since his four sons and two daughters had grownup and he wanted the two shops for continuous business of catering. It was said in the Release Application that he has a business of fast food which he carries on by setting up temporary stalls in Haats, Bazars and Melas but due to his advancing age and sickness of his wife and having six grownup children to look after, he needed to set up permanent shop at Etawah for which he had purchased the two shops through a registered sale-deed dated 20.10.2000 along with the house adjacent to the said shops from Subhash Dixit and Jitendra Dixit r/o. Berun Katra, Sahabganj Khan, Etawah. It was alleged in the said plaint that the landlord had given notice to the tenants who held the two shops on rent @ Rs.10/- per month in the year 2002 and filed a Release Application thereafter under Section 21(1)(a) of the U.P. Act No. 13 of 1972 in the year 2003.

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The defendants i.e. the writ-petitioners of these two writ

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petitions appeared and filed an objection as to the maintainability of the Release Application alleging that the shops were originally owned by one Subedar s/o. Lalman who had executed a Will on 03.02.1925 bequeathing all his property to Rajaram. Rajaram was the adopted son of Subedar. Subedar had constructed a temple, a well, shops and dharamshala in Mohalla Barun Katra, Sahab Khan, Etawah City and the temple, well and dharamshala were to be maintained by Rajaram from income of shops and other property of Subedar after his death. It was alleged that in the Will it was stated that Rajaram would not have a right to transfer the property and on the death of Rajaram, if he died issue-less, the property was to be looked after by a Committee of certain named persons of the city who would then also be liable to maintain the temple and dharamshala from the income of the other properties of Subedar and in case of death of any of the members of the Committee, the remaining members of the Committee had the right to co-opt some other well known religious persons of the city of Etawah. It was alleged that Rajaram died issueless and his widow Ram Devi started collecting rent. Ram Devi executed a Will on 13.11.1987 thereby appointing Subhash Dixit and Jitendra Dixit, her nephews, as her successors and also enjoined upon them the duty to maintain the temple out of the income of the properties. On the death of Ram Devi, Subhash Dixit and Jitendra Dixit started collecting rent from the tenants only as Managers of the property for the benefit of the temple and dharamshala. Later on however, Subhash Dixit and Jitendra Dixit without any authority of law sold off

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the two shops and house adjacent thereto to the respondentKrishna Kumar on 20.10.2000 by way of registered sale-deed. It was alleged that father of the petitioners gave rent to Ram Devi and then Subhash Dixit and Jitendra Dixit but never acknowledged Krishna Kumar as their landlord and did not pay any rent to him.

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Initially P.A. Case No. 19 of 2003 was filed by the respondents against Basant Lal who died leaving behind the writ petitioners of Writ Petition No. 13412 of 2011 as his heirs and legal representatives. The petitioners, on being substituted, had filed an objection regarding the maintainability of the Release Application as the property belonged to a Trust and was exempted from operation of the Act and in the alternative they also claimed that there was no bona fide need as set up by the respondents-landlord in the Release Application as he had already a restaurant at Mohalla Shahkamar in the name and style of “Agra Chat Evam Restaurant”.

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Similarly, in the Release Application filed by the respondent-Krishna Kumar registered as P.A. Case No. 20 of 2003, Suresh Chandra and Rajesh Kumar s/o. Shanti Devi widow of Sone Lal, filed a written statement that Subedar s/o. Lalman was the original owner of the properties. The same objections as have been referred herein above were taken by the tenants in their written statement. It was also stated that Sone Lal, the father of the petitioners was the tenant of one of the shop in the lifetime of Subedar who had created the Trust. When rent was not being taken by the landlord Raja Ram a Case No. 147 of 1980 under Section 30(1) was filed by

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Sone Lal and since then he was depositing the rent in Court. The petitioners Suresh Chandra & Others were running a hair cutting salon in the shop in question and it was their only source of livelihood whereas the respondent landlord had purchased one shop situated in Mohalla Shahkamar from one Bashir Uddin and was running Agra Chat Evam Restaurant. There was no bona fide need of the landlord as alleged in the Release Application.

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The respondent-landlord filed a copy of the order dated 29.10.2002 passed by the IVth Additional District Judge, Etawah in Trust Case No. 02 of 2002 in which the application filed by Rajesh Kumar and Others to prosecute the case for maintaining the temple of Mahadevji Maharaj as its trustees was rejected.

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The learned Trial Court had considered the sale-deed alleged to have created a Trust and found that no such Trust was created. In the written statement filed by Subhash Dixit and Jitendra Dixit they had indicated that the house that was sold by means of the registered sale-deed on 20.10.2000 contained two shops i.e. shop no. 155 and 156. In one shop Sone Lal was the tenant and in the other Basant Lal. Rajesh Kumar, the applicant before the learned Additional District Judge, was the son of Sone Lal and Ramesh Chandra the other applicant was the son of Basant Lal.

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Subhash Dixit and Jitendra Dixit had also filed rent receipts that initially the rent was being paid to Raja Ram and thereafter to his widow Ram Devi. After her death the tenant started paying rent to Subhash Dixit and Jitendra Dixit up to 13.08.2000. From the rent receipts it was evident that till

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August, 2000 the tenants accepted Ram Devi and thereafter Subhash Dixit and Jitendra Dixit as their landlord. After the registered sale-deed of 20.10.2000, Krishna Kumar the respondent-landlord had sent notice to the tenants asking for rent which was refused and to avoid being thrown out, the tenants had devised a plan to avoid eviction by moving an application under Section 92 of the Civil Procedure Code.

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It was further submitted by the landlord in his replication that once the question of interpretation of the Will registered on 03.02.1925 had been settled by the competent Trial Court the finding on the issue was binding upon the parties and was res judicata and, therefore, it could not be allowed to be reopened by the tenants in filing their written statement challenging the Release Application.

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Written Arguments have been filed by Shri Swapnil Kumar for the petitioners Prakash Chandra & Others in Writ Petition No. 13412 of 2011 and by Shri Vivek Saran for the petitioners Suresh Chand & Others in Writ Petition No. 16929 of 2011. In both these written arguments the contention raised in the writ petition are reiterated. With regard to interpretation of the Will dated 25.01.1925 registered on 03.02.1925.

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Additionally, it has been submitted that an application was moved by the tenants to issue a commission for inspection of Agra Chat Evam Restaurant bought by the landlord through sale-deed dated 19.08.1995 from one Bashiruddin but the application was disposed off by the Prescribed Authority by its order dated 05.02.2009 by stating that it would be looked into at the time of the judgment as to whether the inspection by the commission is necessary. It has been submitted that the

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Prescribed Authority allowed the Release Applications arbitrarily on 07.02.2009 in P.A. Case No. 20 of 2003 and P.A. Case No. 19 of 2003 on 25.04.2009. Rent Control Appeal Nos. 04 of 2009 and 06 of 2009 were similarly rejected by the learned Additional District Judge, Etawah in a most arbitrary manner on 11.02.2011.

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The petitioners have submitted that this Court should consider the following questions while deciding these writ petitions :-

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(a) whether the registered sale-deed dated 25.01.1925 executed by Subedar had created a trust and restrained the beneficiaries to transfer the property ?

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(b) whether the applicant respondent no. 1 had become owner and landlord of the shop in dispute on the basis of sale deed dated 20.10.2000 and could have filed application under Section 21(1)(a) of the Act No. 13 of 1972 ? (c) whether the applicant respondent no. 1 had been able to prove his bona fide need for getting the release of the shops ?

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(d) whether the Prescribed Authority erred in law by holding that it did not have jurisdiction to decide the question of ownership of the shop ?

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(e) whether the Appellate Authority erred in law by taking into account the provision of Section 10 of the Transfer of Property Act holding the conditions imposing rerstrictions on transfer by Raja Ram to be invalid ?

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(f) whether the jdugment dated 27.10.2002 passed in Misc. Case No. 02 of 2002 filed under Section 92 CPC was relevant at all for deciding the controversy ?

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It has been submitted by the petitioners that the Will deed dated 25.01.1925/03.02.1925 was to be read as a whole and it cannot be interpreted in parts by reading its paragraphs separately as has been done by the learned Court below. The intentions of Subedar were clear and it had been stated that the manager-ship of the properties will be transferred from generation to generation and if no one was available in the family then a Committee of persons named in the Will, would become trustees and would be entitled to maintain the temple and dharamshala.

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It has further been submitted that Section 5 permits creation of a Trust by a Will. Since the income of the properties including rent from shops in dispute had to be applied for the benefit of temple and dharamshala and transfer of the aforesaid properties was restricted. There was a clear intention to create a Trust for the benefit of the Deity. Reference has been made to the judgment of the Hon'ble Supreme Court in Navneet Lal vs. Gokul reported in 1976 (1) SCC 630 , paragraph nos. 12 to 20 thereof, and it has been submitted that use of the word 'Malik' in the Will did not amount to absolute vesting of movable and immovable property of the trust.

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It has further been submitted that under Section 10 of the Transfer of Property Act, 1882, the learned Trial Court and Appellate Court made an incorrect presumption that no condition would be imposed restricting further transfer of property and said condition if imposed was to be treated as invalid.

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It has been submitted that provisions of Transfer of

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Property Act would not apply for execution of Will which comes into existence only on the death of the testator and thus it is not a transfer by a living person and the Courts below could not have non-suited the petitioners. It is not a transfer by a living person and thus Section 10 of the Transfer of Property Act would not apply.

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Reference has been made to the judgment rendered by this Court in Mam Chand & Others vs. Pramodini Srivastava & Others reported in 2014 (5) ADJ 231 to submit that an agent to collect rent on behalf of the landlord would not be entitled to file a Release Application under the U.P. Act No. 13 of 1972.

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It has also been submitted that a complicated and intricate question of title had arisen before the Prescribed Authority which could not have been entertained and the Release Application should have been rejected on this ground. Reference has been made to the judgment rendered by this Court in D.S.Victor vs. District Judge & Another reported in 1978 ARC 413.

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It has also been submitted that the landlord (applicant/respondent no. 1) while filing the Release Application had not disclosed that he had alternative accommodation available, as he was already running Agra Chat Evam Restaurant in Mohalla Shahkamar in the city of Etawah. Since an application had already been moved by the tenant for issuing a commission for inspection of the premises to verify the running of restaurant by the landlord and such application was not considered by the learned Prescribed Authority, the order passed by him was vitiated on this ground

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alone. The petitioners have placed reliance upon the judgment of this Court in Laxman & Others vs. Ist Additional District Judge, Varanasi reported in 2006 (64) Alld. Law Reports 96.

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It has also been submitted that the learned Courts below incorrectly drew an adverse inference against the petitioners/tenants for not searching an alternative accommodation and ignoring that in recent times it has become very difficult for the tenant to shift his business to another locality. It has also been submitted that the learned Courts below ignored Rule 16 framed under the U.P. Act No. 13 of 1972 that the longer the period of tenancy the order of eviction should not ordinarily be passed.

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Shri Ashok Agrawal who appears on behalf of the landlord respondent-Krishna Kumar while opposing arguments raised by Shri Swapnil Kumar and Shri Vivek Saran, learned counsel for the petitioners-tenant has submitted that Ram Devi while issuing rent receipts in favour of the father of the petitioners had issued them as landlord and not as Manager. True copies of such rent receipts had been filed along with counter affidavit.

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A copy of the written statement in Suit No. 54 of 1995 filed by a stranger named Sriram claiming to have inherited the property of Subedar and Raja Ram was also filed where Sone Lal had admitted that Ram Devi was the owner and landlord and that no trust was created by Subedar for which he had appointed his adopted son Raja Ram as the Manager. Reference was made to the detailed judgment and order dated 29.10.2002 by the Principal District Judge, Etawah in

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application moved under Section 92 of C.P.C. in Misc. Case No. 02 of 2002 where detailed findings have been recorded recording the registered Will dated 25.01.1925/03.02.1925. 26. The learned counsel for the respondents has submitted that the application under Section 92 was filed by Rajesh Kumar, petitioner no. 2 in Writ Petition No. 16929 of 2011 along with Ramesh Chand, petitioner no. 3 in Writ Petition No. 13412 of 2011. The tenancy devolved upon them from their respective fathers Sone Lal & Basant Lal. The case was litigated between the same parties with regard to the same property raising the same question. The judgment and order dated 29.10.2002 had attained finality and was not challenged before any court of law. It having attained finality was binding upon the parties. It was held therein that the property in question is not a trust property. No public trust was created by Will. It was also adjudicated by the learned Civil Court that Subedar s/o. Lalman had inherited the property from his father and on adoption of Raja Ram as his son under the Hindu Succession Act, the rights of Subedar devolved upon Raja Ram. On the death of Raja Ram his widow Ram Devi inherited the property as absolute owner and then bequeathed the same to her nephews by registered Will dated 13.11.1987. In the Will dated 13.11.1987 only a pious obligation to maintain the temple and dharamshala was cast upon Subhash Dixit and Jitendra Dixit. The temple being a private property arrangement for Arti, Bhog Puja, Archana & Utsav of Srimahadevji, Maharanai Parvatiji and Hanumanji Maharaj continued. The temple and dharamshala had not been sold and the same were duly maintained by Subhash

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Dixit and Jitendra Dixit.

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It has been submitted that the judgment rendered on 29.10.2002 in Misc. Case No. 02 of 2002 shall operate as res judicata between the parties. Raising the same plea again was barred by Section 11 of C.P.C. Reference was made to Explanation VI and VIII of Section 11 of CPC. It has been submitted by the learned counsel for the respondents that the Hon'ble Supreme Court in Shiromani Gurudwara Prabandhak Committee vs. Mahant Harnam Singh reported in 2003 SAR (Civil) 857 in paragraph 20 has held that a suit under Section 92 CPC is of a special nature for the protection of public rights and charities. The suit being fundamentally filed for the benefit of public and on their behalf would be considered as a representative suit and shall bind not only the parties but all those who share common interest and are interested in the trust. It is for this reason that Explanation VI of Section 11 CPC constructively bars by res judicata. The entire body of interested persons from re-agitating the matters directly and substantially in issue in an earlier suit under Section 92 CPC.

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It has also been submitted that the tenants having once accepted the ownership of Ram Devi and having tendered the rent to her and thereafter to Subhash Dixit and Jitendra Dixit up to August, 2000 could not resile from such admission. Subhash Dixit and Jitendra Dixit were recorded as owners in Nagar Palika registers and Sone Lal and Basant Lal as tenants. By virtue of Section 116 of the Evidence Act, the petitioners/tenants are estopped from challenging the landlordship of Subhash Dixit and Jitendra Dixit.

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It has also been submitted after reading of the Will dated 25.01.1925 in detail by the learned counsel for the respondents that it is clear that the same was executed by Subedar in favour of his adopted son Raja Ram who was nine years old. The testator had stated that he had constructed a temple consisting of idols of Srimahadevji Maharaj, Maharani Parvati and Hanumanji Maharaj and also a dharamshala. He further stated that his Bhabhi was alive and for the arrangement of the temple and for maintaining his Bhabhi, the Will was being made. The Will speaks of different properties owned by the testator and it had dealt with them in different manner. In paragraph 1 the testator had transferred absolute rights in favour of his adopted son (pisar mutwanna) all his immovable property (gair mankula) i.e. shops, garden, arazian (open land) etc. and movable property (mankula) including animals. It is further stated that no other person (digar shakshya) shall have any rights in the property of the deceased (zaidad matruka). It has been submitted that an absolute estate was created in favour of his adopted son Raja Ram. In paragraph 2 the testator imposed a pious obligation on his son to maintain his Bhabi and the temple and also to make arrangements for aarti, bhog, puja and utsav and to make arrangements for dharamshala and to make additional construction therein with a rider that the aforesaid properties shall not be transferred. This rider was confined to the temple and the dharamshala referred to in paragraph 2 of the Will.

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In paragraph 3 the testator provided that after his death (mutabanna majkoor) is adopted son (aulad jakur) will be the

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absolute owner and after him, his sons will become the owner and shall make arrangements for the temple and dharamshala. The expense incurred shall be maintained in accounts to be kept for the said purpose and no one would have a right to question the said account.

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In paragraph 4 and 5 a provision was made for maintenance of temple and dharamshala by a Committee. 32. It has been submitted that the said Committee was never constituted nor came into existence in the past 94 years (1925 to 2018). It was further provided that if a member of the Committee resigned or died, it was open for remaining members to appoint his son as a member and if there was no qualified person or if the member died issue-less then any other person of the same religion could be appointed a member.

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It has been submitted that a bare perusal of the Will and all its paragraphs clearly shows that there is no dedication in favour of the Deity. The Will does not show that it creates a trust. Section 6 of the Indian Trust Act provides that a Trust is created when the author of the trust indicates with reasonable certainty by any words or act,

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(a) an intention on his part to create thereby a trust,

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(b) the purpose of the trust,

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(d) the trust property, and transfers the trust property to the trustees.

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All the four ingredients are not present in the Will dated 25.01.1925. There is no clear intention expressed for creating a trust for any purpose as defined nor have the beneficiaries

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i.e. the Deities to the said trust property been mentioned. The entire property is bestowed upon the son.

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Learned counsel for the respondents has placed reliance upon the judgment rendered by the Hon'ble Supreme Court in Devki Nandan vs. Murlidhar reported in AIR 1957 SC 133 and two judgments rendered by this Court in Sri Satnarayan Ji Maharaj Virajman Mandir vs. Rajendra Prasad Agrawal reported in AIR 1997 Alld. 413 and in Smt. Uma Devi vs. Umakant Sharma reported in 1984 (2) ARC 54.

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It has also been submitted on behalf of the respondentlandlord that the question of bona fide need has been settled by this Court in several of its judgments, a few of them being cited as :-

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(1) M/s. Netram and Sons. vs. 5^th DJ, Agra reported in 2007 (68) ALR, 733 .

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(2) Alakh Narain Batham vs. Smt. Geeta Devi reported in

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2008 (2) ARC 407 .

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(3) Ram Kumar vs. 4^th ADJ Kanpur reported in 2004 (56) ALR 646.

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(4) Siddh Gopal vs. Dilip Kumar reported in 2007 (2) ARC 32.

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The learned counsel for the respondent-landlord has also cited judgments of this Court saying that comparative hardship of the landlord and the tenant can also be judged by the failure of the tenant to search for alternative accommodation. The judgments cited are as follows :-

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(1) Jai Kishan Prasad vs. 7^th ADJ Agra reported in 2005 (2) ARC 805 .

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(2) Rakesh Kumar Agrawal vs. 7^th ADJ Bareilly reported in

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2006 (65) ALR 406 .

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(3) Bansraj Lalta Prasad Mishra vs. Stanley Parker Jones reported in AIR 2006 SC 3569 .

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It has further been submitted that the question of title can be incidentally decided by the Prescribed Authority in a Release Application under Section 21(1)(a). Reference has been made to the judgment in Krishna Chandra Srivastava vs. DJ Alld. reported in 1997 (31) ALR 119 .

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Having heard the submissions of the learned counsel for the parties, having gone through the orders impugned and judgments cited by both the sides, this Court has to first consider whether the Will dated 25.01.1925 created a Trust under the Indian Trusts Act, 1888 ? 40. It is apparent from a perusal of the contents of the Will that the term “Trust” was never used in the Will. The ownership of the property was not relinquished in favour of the Deity nor in favour of the public at large. There was no mention in any of the paragraphs of the Will of giving the ownership to the Deity in favour of whom the religious endowment was being made. It was a plain and simple Will created in favour of an adopted son with the father imposing a pious obligation on the son to maintain the temple and dharamshala and the sister-in-law (Bhabhi) of the testator from the income derived from the property so bequeathed. 41. It is settled law that any bequest by testator with a condition would render such condition imposed invalid but would not invalidate such a bequest.

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Reference has been made to the Constitution Bench judgment in Devki Nandan vs. Murlidhhar (supra) and the

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judgments rendered by this Court in Sri Satnarayan Ji Maharaj Virajman Mandir (supra) and in Smt. Uma Devi vs. Umakant (Supra). All these judgments discuss how a valid Trust or Religious endowment is made and the perusal of the Will dated 25.01.1925 clearly shows that no ceremony for creating a religious endowment, for example, a 'Sankalp” and an 'Utsarg' necessary for dedication of properties to the temple were ever performed by the testator nor there is a mention of the same in the Will dated 25.01.1925. There was no formal dedication in favour of the Deity nor even a private trust created, “the distinction between a private and public trust is that whereas in the former the beneficiaries are specific individuals, in the latter they are the general public or a class thereof. While in the former the beneficiaries are persons who are ascertained or capable of being ascertained. In the latter they constitute a body which is incapable of ascertainment.” 43. In a private trust or religious endowment the beneficiaries are specific persons. In a public trust or endowment, the general public or a sections thereof is the beneficiary. Under Hindu law an idol can have no beneficial interest in the endowment. Gods do not make use of the property according to their desire nor are they seen to act for protecting the same. The Gods have no beneficial enjoyment of the properties. They can be described as the owners only in a figurative sense. A gift to an idol consisted in the abandonment by the owner of his dominion over them for the purpose of their being used for the purpose which he intends. The purpose of making a gift to a temple does not confer any benefit on the God or Deity but confers a benefit on those

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who worship in the temple, by making it possible for them to have the worship conducted in a proper and impressive manner. In this sense an endowment is generally recorded as a public trust.

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In the judgment rendered in Devki Nandan vs. Murlidhar (Supra) the Hon'ble Supreme Court has held that if the endowment is in favour of the idol or temple it creates a public trust if it is in favour of family member or members, it is a private trust, but bequeathing the property to an individual and creating a charge thereon for the income of the property to be used for the benefit of the temple would not create a trust. It would only be a pious obligation on such a person on whom such property is bequeathed to look after the temple and dharamshala.

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This Court while considering the judgment rendered in Devki Nandan vs. Murlidharan in Satnarayana Ji and Smt. Uma Devi (Supra) held that Section 92 of the CPC speaks of suits connected with public charity. In the case of any alleged breach of any express or constructive trust created for public purposes of a charitable or religious nature, or where the direction of the court is deemed necessary for the administration of any such trust, the Advocate-General, or two or more persons having an interest in the trust and having obtained the leave of the Court, may institute a suit, whether contentious or not, in the principal Civil Court of original jurisdiction or any other Court empowered in that behalf by the State Government within the local limits of whose jurisdiction the whole or any part of the subject-matter of the trust is situated, to obtain a decree for the relief as

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enumerated under the Section. The first thing necessary for the suit under Section 92 is that there must be a trust, express or constructive, created for public purpose of charitable or religious nature.

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Thus, it becomes incumbent upon the plaintiff to prove that the property in question constituted a Trust either by express, declaration or by any constructive implication and the trust was for a public purpose of a charitable or a religious nature.

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In Venugopala Naidu vs. Venkatraydu Naidu Charities reported in AIR 1990 SC 444 , the Hon'ble Supreme Court had observed that a suit under Section 92 of the CPC is a representative suit in character and thus would bind all persons claiming under the same title.

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From a perusal of the Will dated 25.01.1925 it is manifest that there was no dedication to the deities but only a charge was created under the terms of the Will for using the income of the properties so bequeathed for the purpose of temple and dharamshala.

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A similar observation as in Venugopala Naidu (supra) has been made in Shiromani Gurudwara Prabandhak Committee (Supra) by the Hon'ble Supreme Court that a suit under Section 92 of CPC is a suit of a special nature for protection of public rights in public trust and charities. The named plaintiffs being the representatives of the public at large which is interested in the trust, all such interested persons would be considered in the eyes of law to be parties to the suit. A suit under Section 92 being a representative suit binds not only the parties named in the suit title but all those who share

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common interest and are interested in the Trust. It is for this reasons that Explanation VI to Section 11 of the C.P.C. constructively bars by res judicata. The entire body of interested persons from agitating the matters directly or substantially an issue in an earlier suit under Section 92 CPC. 50. The learned counsel for the petitioners have argued that it is for the Court to see whether there was any bona fide need of the respondents in getting two shops vacated as the respondents were already running a restaurant in the name and style of Agra Chat Evam Restaurant in the same city. It is settled law that a landlord is the best judge as to his requirement to set up a business. The Hon'ble Supreme Court in Prativa Devi vs. T.V.Krishnan reported in 1996 (5) SCC 353 has held that it is no concern of the Courts to dictate to the landlord as to how and in what manner he should live or to prescribe for him a residential standard of their own. The same law has been reiterated in R.C.Tamrakar & Another vs. Nidhi Lekha reported in AIR 2001 SC 3806 and in Faruk Llaht Tamboli & Another vs. B.S. Shankarrao Kokate reported in 2016 (1) ARC 01 . The Court has consistently also held that the tenant has no right to dictate terms to the landlord even if during pendency of litigation the landlord has acquired alternative accommodation for the purposes of running of business as in this case. It is alleged that the respondent has four grown up sons and two daughters. It is not unusual for grownup sons to set up business separately and independently from the joint family business. A perusal of the invitation card shows that Agra Chat Evam Restaurant was owned by the father of the respondent and not by the

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respondent himself.

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In the case of Faruk Llaht Tamboli & Another (Supra) the Hon'ble Supreme Court observed looking to the facts of the case that the landlord had purchased the property for Rs.10,000/- and the rent that was being paid by the tenant was Rs. 36/- per month. It is obvious that the property that was purchased by the landlord was not purchased for earning rent therefrom but for the purpose of running a business therein. It does not certainly lie in the mouth of tenant to say that the owner of the premises through a registered sale deed must continue in the business run by the joint family. The Hon'ble Supreme Court observed that when children come of age they must have the choice to run their own life by earning their own livelihood. If the suit property was purchased by the landlord for running his own business, there cannot be any doubt about his bona fide need to run his own business.

¶106

With regard to the comparative hardship that has been pleaded by the petitioners, the Hon'ble Supreme Court has observed in Mohd. Ayub & Another v. Mukesh Chandra reported in 2012 (2) SCC 155 and in Ganga Devi vs. District Judge, Nainital reported in 2008 (7) SCC 770 that the question as to whether the requirement of the landlord is bona fide or not within the meaning of the provisions of U.P. Act No. 13 of 1972 and the rules is essentially a question of fact.

¶107

The Court observed that Rule 16 provides for some factors which are required to be taken into account. It clarified that the Court would not determine the question only

¶108

¶109

on the sympathy or the sentiment. In Rishi Kumar Govil vs. Maqsoodan and Ors. Reported in 2007 (4) SCC 465 the Court clarified that length of period of tenancy is only one of the factors to be taken into account in context with other factors of the case and cannot be a sole criteria to order or not to order the eviction of the tenant. While decided the question of comparative hardship the Court observed that during the pendency of the litigation if any efforts were made by the tenant to find out alternative accommodation then perhaps the tenant would have a case but in case of failure to bring on record any genuine efforts made by the tenant to find out any accommodation for running his business, it could safely be assumed that the tenant was only interested in keeping the accommodation in question because of meager amount of rent being paid by him.

¶110

Learned counsel for the respondents-landlord has also taken the plea of Estoppel and has placed reliance upon the two judgments of the Hon'ble Supreme Court in Rita Lal vs. Raj Kumar Singh reported in AIR 2002 SC 3341 and in Sheikh Noor vs. Sheikh Ibrahim reported in 2003 SC 4163 and another judgement rendered in Bansraj Lalta Prasad Mishra (Supra). It has been submitted that once the tenant had admitted the title of the landlord in a civil suit, he is not entitled to dispute the same again in another judicial proceedings. It is undisputed that the petitioners had paid rent initially to Ram Devi widow of Raja Ram. Later on they also paid rent to Subhash Dixit and Jitendra Dixit. Their fathers Sone Lal and Basant Lal had similarly paid rent. In fact in one Civil Court proceeding arising out of one stranger namely Sriram an agnate of Raja Ram, alleging that he was the real owner of the property as

¶111

¶112

the same had devolved upon him on account of death of Raja Ram, a written statement was filed by Sone Lal indicating that Ram Devi was the owner of the property in question. 55. The learned Trial Court in Original Suit No. 02 of 2002 under Section 92 of C.P.C. Had rejected the application of the applicants Rajesh Kumar and Ramesh Chandra finding that although there was a Will executed by the original owner in the year 1925, it had only bequeathed the properties belonging to Subedar upon his adopted son and creating a charge on the income of immovable properties to be utilized for the maintenance of temple and dharamshala. Under Section 10 and 11 of the Transfer of Property Act, on a valid deed of transfer being executed the bequest could be respected but any condition imposed upon such bequest would become invalid. The learned Trial Court came to the conclusion that the entire properties of Subedar had been inherited by him and were not self earned to be bequeathed in any manner he liked. Raja Ram was his adopted son and under the Hindu Succession Act, whatever rights Subedar had on the property devolved upon Raja Ram and he became the absolute owner thereof without any condition being attached to such ownership. If any such condition was imposed in the Will as alleged by the applicant for treating it to be the property of a Trust not to be transferred by him, the same was invalid. No doubt the applicants as well as members of the general public were going for worship in the temple but that would not make the temple to be a public temple. It remained a private temple belonging to a family of Raja Ram s/o. Subedar.

¶113

On perusal of order-sheets in both these writ petitions, this

¶114

¶115

Court had noticed that initially when the writ petitions were heard as fresh, this Court had directed that status quo to be maintained subject to payment of Rs.1000/- per month as rent to the respondents subject to the condition that the rent so received by the landlord shall be used for the maintenance of temple and dharamshala only. Initially the order was time bound but later on it was extended till further orders.

¶116

It is not clear as to whether the interim mandamus issued by this Court was followed by the tenants in paying rent as directed of Rs.1000/- per month to the landlord. The Release Application was filed by the landlord in the year 2003 and 15 years have passed and the tenants have continued to enjoy the two shops in question on the basis of interim order passed by this Court. The rent of the shops in question may have increased manifold by now.

¶117

However, since the matter arises out of the Rent Control Act it is directed that the landlord shall pay Rs.12,000/- i.e. the rent of Rs.1000/- per month for the next 12 months as compensation to the tenants. The tenants are directed to vacate the two shops in question within one month from today and also to pay damages at the rate of Rs.5000/- per month for each of the shops held by them from the date of this order till delivery of actual possession. Both the writ petitions are dismissed .

¶118

No order as to costs.

¶119

Dated :11.01.2019

¶120

VR/

Prakash Chandra and Others v. Krishna Kumar and Others

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Prakash Chandra and Others v. Krishna Kumar and Others

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