Prakash Krishna, J.@mdashThe above revision has been filed u/s 25 of the Provincial of Small Causes Court Act by the tenant of the disputed shop against the Judgment and decree dated 9.2.2004 delivered in SCC Suit No. 7 of 2001 whereby the Court below has decreed the suit for recovery of Rs. 42,375/- towards arrear of rent and for ejectment of the defendant from the shop in dispute. In addition, pendentelite and mense profit from the date of the institution of the suit have been granted @ 1125/- per month till the actual delivery of possession.
2. SCC Suit No. 7 of 2001 was instituted by Madhav Prasad Charitable Trust through his chief trustee and Shri Kailash Chandra Mittal S/o Madhav Prasad against the defendant, the applicant (hereinafter referred to as the ''tenant'') on the allegations that the property in dispute is a trust property and Kailash Chandra Mittal, Plaintiff No. 2 is its managing trustee. The shop in dispute was let out in the month of February 1985 to the tenant and it is part of the said charitable trust. The trust is a public charitable trust and it is utilizing the rent for the charitable purposes and hence the provisions of U.P. Act No. 13 of 1972 are not applicable. A rent note dated 22.1.1985 was executed by the tenant wherein it was agreed upon that there will be enhancement of 10% of rent after every three years. The rent note was for a period of 11 months and as per the terms of the rent note the rent came to be Rs. 1125/- per month in the month of March 2001. The tenant is in arrears of rent since March 1998. A notice dated 23.4.2001 determining the tenancy was given which was replied on 25.5.2001 by the tenant on incorrect pleas. A sum of Rs. 1500/- was tendered through money order which was refused as it was a very small amount in comparison to the rent due.
3. The suit was contested on a number of pleas. The tenant denied that the property in dispute is a trust property. The execution of the agreement dated 22.1.1985 was denied and it was stated that the plaintiff No. 2 had obtained signatures on blank papers and if he has prepared some agreement thereon, it is of no consequence. The shop in dispute was let out on a monthly rent of Rs. 400/- in February 1985. It was further pleaded that a sum of Rs. 20,000/- was given by him by way of security amount and that the provisions of U.P Act No. 13 of 1972 are applicable.
4. The parties led evidence oral and documentary in support of their respective cases. On the basis of the pleadings of the parties, the trial court struck five points for determination as mentioned in the judgment. It was held that the shop in dispute is a part of trust property and the provisions of U.P Act No. 13 of 1972 are therefore not applicable that the rent note dated 22.1.1985 was executed by the tenant and the said document is admissible in evidence being for a period of 11 months, in view of the judgment of the Apex Court in the case of Satish Kumar v. Zarif Ahmad 1997 (2) CCC 122, the tenant is defaulter in the payment of rent since April 1998 and that the tenant is not entitled to get the benefit of Section 20(4) of U.P. Act No. 13 of 1972.
5. At the very outset it may be stated that although in the memo of revision, number of grounds have been raised therein but during the course of argument Shri Manoj Mishra, Advocate, learned Counsel for the tenant argued only two points i.e the findings recorded by the trial court on issue No. 1 that the disputed property is a trust property is incorrect and that the court below had erred in law in comparing the disputed signature with the admitted signature of the tenant himself. No other point was either argued or pressed. Therefore, only a very limited controversy survives in the present revision.
6. The learned Counsel argued that the trust was created by the trust deed registered on 17.10.1966, a copy whereof has been filed as annexure 4 to the affidavit filed in support of the stay application. Shri Kailash chandra Mittal donated the property described in the said trust deed to the public in favour of the two temples of Kailash Mandir and Ram Mandir. These temples were established by him, in memory of his father and were donated to the public. The court was taken through the condition No. 13 of the said trust deed to impress upon the court that by means of the said trust deed, only one shop was included in the trust property which was not let out to the present tenant but to another tenant namely Munesh Chandra Gupta against whom indisputably a SCC Suit No. 18 of 1995 was filed for ejectment etc. and the said suit has been decreed and in pursuance thereof the possession has been delivered to the trust. Reliance was also placed on the other trust deed dated 15.1.1977 through which Kailash Chandra Mittal transferred his some more properties to the said trust. It was also submitted that the shop in dispute is not trust property. Ultimately, if it is proved that it is not the trust property, the suit cannot be decreed as provisions of U.P Act No. 13 of 1972 will apply further if it held that suit property is not trust property then the suit is liable to fail and the ejectment decree cannot be sustained on other pleas.
7. Considered the aforesaid submissions of the learned Counsel for the tenant and perused the record.
8. The creation of public and charitable trust by Kailash Chandra Mittal in the name of Madhav Prasad Charitable Trust by means of the aforesaid two deeds is not in dispute. The only dispute raised by the tenant is that the shop in dispute is not trust property and was let out by Shri Kailash Chandra Mittal individually and not in the capacity of chief trustee of the said trust. The trial court has considered the matter in depth. To arrive at a definite conclusion, it has considered the attending facts and circumstance of the case, as well as the conduct of the parties and the evidence led before it. To begin with the case it considered the contents of the notice dated 23.4.2001 determining the tenancy and its reply dated 25.5.2001 given by the tenant. In reply, the tenant has not denied that the property in question is not a trust property. A vague reply has been given that he has no knowledge that the shop in dispute is a trust property. The other circumstance which has been taken note of is that the defendant-tenant in his deposition has admitted that the shop is situate just behind the Mandir. These circumstances may have got some relevance. A photograph of the spot was produced by the plaintiff showing that the shop in dispute is just behind the Mandir.
9. The other circumstance which has been taken into consideration is that in another SCC Suit No. 18 of 1995 was filed by the present plaintiffs against another tenant Monesh Chandra Gupta of the adjoining shop on identical plea that it is trust property was raised. The shop of the tenant is situate towards the east of shop of Monesh Chandra Gupta as described in the plaint of the SCC No. 18 of 1995. The said suit was decreed by the JSCC on 22.1.2002 and the said decree has been affirmed in revision No. 7 of 2002 by the judgment dated 2.11.2002.
10. Now the contents of the trust deed dated 17.10.1966 may be looked upon. The argument of the tenant is that the trust was created under the said trust deed, only with respect to one shop besides the other properties which were transferred by Kailash Chandra Mittal to the trust. Much emphasis was laid on condition No. 13 of the said document. Undoubtedly, it is mentioned therein by Kailash Chandra Mittal that he has created trust in respect of the properties mentioned therein which includes one shop. The case of the plaintiffs is that the said shop was divided into two shops and one was let out to the present tenant Paramjeet Singh and another was let out to Monesh Chandra Gupta. The trial court accepted the said explanation of Kailash Chandra Gupta, plaintiff No. 2. There appears to be no tangible evidence in rebuttal. Significantly, the said plea was also put forward by Kailash Chandra Mittal in another JSCC Suit No. 18 of 1995 against Monesh Chandra Gupta and was accepted. The theory as pointed out by the plaintiffs also finds corboration from the boundaries of the shop given to trust as mentioned in the trust deed. Towards the east of the shop of the trust, it is mentioned that there is a shop of the creator of trust namely Kailash Chandra Mittal. Thus, out of two shops one shop was transferred to the trust and another shop was retained by him. In the oral deposition Kailash Chandra Mittal has deposed that these two shops were sub divided into four shops by erecting partition walls. Thus, the trust converted two shops out of one shop and these shops were let out to Paramjeet Singh and Monesh Chandra Gupta. The shop which remained with Kailash Chandra Mittal is in occupation of his daughter and wife. He has very clearly stated in his deposition that before letting out the shop to the present tenant, it was converted into two shops by the trust.
11. In view of above discussion, I find no infirmity in the finding of the trial court holding that the shop in question belongs to trust i.e plaintiff No. 1. There being no issue that it is not a public or charitable trust, the provision of U.P Act No. 13 of 1972 are therefore clearly not applicable.
12. Strong reliance was placed by the tenant on
13. In this case, the Apex Court has held that where a plaintiff has filed a suit for declaration of its title to, and for recovery of possession of, the suit property on the basis of an agreement and the said agreement having been not proved, the plaintiff could not fall upon the plea that he as acting de facto mutawalli. It has been held that when the plaintiff came forward specifically pleading that he was entitled to declaration of title and for recovery of possession of the plaint schedule property based on the agreement deed, it could succeed only on the basis of validity of that document and not otherwise.
14. I hardly see any application of the ratio of the above case on the facts of the case on hand. The plaintiffs have successfully proved and established that the suit property is a part of trust property.
15. It was feebly argued that the tenant had denied his signatures on the rent note dated 21.1.1985. The parties filed reports of handwriting experts and the plaintiff''s handwriting experts testimony that it contains the signature of the tenant which was contradicted by the handwriting expert of the tenant, has been accepted.
16. The learned Counsel for the tenant argued that in view of the conflicting reports of handwriting experts, the court was not justified in comparing the signatures of the tenant with his admitted signatures.
17. The Apex Court in case of
18. In the case of
19. In this very case, the Supreme Court has referred its earlier Judgment in the case of Fakhruddin v. State of Madhya Pradesh AIR 1967 SC 1326 wherein the court to satisfy itself whether the testimony of the handwriting expert is acceptable or not, sent for the record and compared the disputed writings with some comparable material.
20. Thus, the approach of the court should not be based totally on the testimony of handwriting expert. The Court should itself compare the disputed writing with the comparable method to find out the wrong. Therefore, the trial Judge has committed no mistake in the case on hand for satisfying himself as to whether the disputed signature of the tenant on the rent note is that of the testimony or not by comparing it with comparable material. It has noticed that except the letter ''P'', the other letters are identical in both the writings. The letter ''P'' has been purposely written differently being conscious of the fact situation and it is not difficult to write the starting letter of a word differently and the other letters with flow in the natural form. Thus no fault can be found out in the impugned order on the said score.
21. By the order dated 4.3.2004, the eviction of the tenant was stayed as an interim measure. The revision was dismissed in default on July 14, 2009 and was restored on 13.7.2007. The tenant enjoyed the disputed premises on the same rate of rent i.e Rs. 1125/- per month. It has come on record that another shop in the vicinity of the disputed shop is fetching Rs. 3000/- per month as rent.
22. Taking a note of the Apex Court Judgment in the case of
23. The learned Counsel for the defendant-tenant prayed for and is granted time up to 31.12.2010 to vacate the disputed accommodation on the following conditions:
1) The defendant -tenant shall deposit the rent/damages at the decreed rate as also enhanced by the court discussed above with the trial court for the period up to 31.12.2010 after adjusting the amount, if any, already deposited within a period of one month from today; and
2) Within the aforesaid period the tenant shall file an undertaking on affidavit before the trial court that the tenant will vacate the disputed accommodation on or before 31.12.2010 and shall handover peaceful, vacant possession to the plaintiffs, without creating a third party interest, the disputed accommodation in good shape.
3) In case of default in compliance of either of the conditions stipulated above, the time granted by this Court shall stand vacated and it shall be open to the plaintiffs to put the decree in execution.
4) In case the tenant fails to vacate the disputed accommodation on or before 31.12.2010, it shall be liable to pay the damages @ Rs. 5,000/- per month from 1.1.2010 till the date of actual delivery of possession.
24. Viewed as above, I do not find any merit in the revision and the same is hereby dismissed with cost.
