$yéng!e‘%anw% IN THE HIGH COURT OF JUDICATURE AT BILASPUR sECOND APPEAL No.I0 L1 /0€§6F~2a&7-r APPELLANTS 1. Smf. Ranu Ghosh, widow of (Defendanfs) Lafe Sudhir Ghosh, aged 60 vi, years. ,2.Vimal Ghosh, son of LaTe Sudhir‘ Ghose, aged ubouf 42 years. M§,\,«Shyam Ghosh son of Lafe P iainfiff ChariTable TrusT, A Public Trusf duly regisfered under The M.P. Public TrusT Ac? Through ifs Managing Direc‘ror Shri NR. Bose, residenf of Dey Bhawan, regisTered office Dey Bhawan, Kalibadi Road, Raipur (Chhaf‘risgar‘h). WW“ Civil suif valued a? Rs7,500/> & courf fee Firs‘r appeal valued of Rs.7,5W7- & courf’ fee affixed Rs‘8807; affixed RsABBO/W‘ ,, This appeal valued'a‘r Rsi7,500/— & caur+ fee affixed Rsjsg/Ww" a/ {1/ @D xxx-3 7K cm Sudhir Ghose, aged 4O year‘s. g €7u‘ l“Kay" AH residem‘s of Budhapara & 31m 4‘ g‘1£ Tikr'apar‘a, Raipur. C/o Suruchi ‘ w Cabin, House No.218/3, Dey Bhawan, Kalibadi Road, Budhapara, Raipur. Vs RESPONDENT {Rai Bahadur BhufnaTh Dey 2 @ 'APPEAL uNbER sECTION $6 OF THE cODE OF N cxvn. PRocEDURE was HIGH COURT OF CHHATTISGARH AT BILASPUR Second Appeal No.246 of 2007 Present: Shri B.PV Sharma. counsel for the appellants. Shri A.K. Gupta, counsel for the respondent. JUDGMENT (Delivered on owimgust, 201 1) Prashant Kumar Mishra, J. 1. By this common judgment the aforesaid second appeals are being disposed of, as both the appeals are arising out of common judgment and decree passed by the first Appellate Court, which in turn arose out of the common judgment and decree passed in Civil 'Suit Nos.53- t A/ZDO2 and 54—A/2002. 2. S.A. No.246/2007 arises out of Civil Suit No.53—A/2002 and Civil Appeal No.3-A/O7 whereas S.A. No.103/O8 arises out of judgment and decree passed in Civil Suit No.54-A/2002 and Civil Appeal No.4—A/O7. Both the suits were filed by the plaintiff/respondent herein namely, Rai Bahaddur Bhootnath Dey Charitable Trust (hereinafter referred to as ~/the Trust’). ln Civil Suit No.53-A/2002. the plaintiff/landlord prayed for APPELLANTS: Smt, Ranu Ghosh & others (Defendants) Versus RESPONDENT: Rai Bahadur Bhutnath Dey Charitable Plaintiff Trust AND Second Appeal No.103 of 2008 APPELLANTS: Smt. Ranu Ghosh & others (Defendants) Versus RESPONDENT: Rai Bahadur Bhutnath Dey Charitabie Plaintiff Trust arrears of rent and eviction on “the grcund of bonaflde need under Section 12(1)(f) of the Chhattisgarh Accommodation Control Act, 1961 (for short 'the Act of 1961’) whereas, in Civil Suit No‘54~A/2002, the decree for arrears of rent and eviction was prayed under Section 12 (1)(a) of the Act of 1961. The second suit i.e. Civil Suit No.54-A/2002 was tited when the piaintiff’s application under Section 13 (6) of the Act of V1961 tiled in the first suit was alloWed by the trial Court, but the High Court in Civil Revision No.2011/1998 observed that since the said suit was not med under Section 12 (1)(a) of the Act of 1961, an order striking out the defence under Section 13 (6) could not have been passed. Thus, the second suit under Section 12 (1)(a) of the Act of 1961 was fried subsequently. By order dated 22-7—2002 passed in Civil Suit No.54-A/2002, both the civil suits were directed to be tried jointly and thus, both the suits have been decided by a common judgment passed by the trial Court as well as by the first Appellate Court. . The plaintiff/landlord preferred a suit on the pleadings inter alia that Smt. Ava Bose, who was the owner and landlady of the suit‘hodse known as “Dey Bhawan" bearing municipal corporation No.33/218 including the shop No.218/2 & 218/3, donated the property to the plaintiff trust by registered trust deed dated 20‘“ July, 1994 for the welfare of the public. The defendants are in occupation of shop No.218/3 as tenants in common of Ava Bose on monthly rent of Rs.500/—. Change in ownership was intimated by the donor as well as by the plaintiff/donee to the defendants by registered letter dated 26-3- /1996 and thus, the defendants became tenant of the plaintiff. 4, It was stated that the piaintiff is a charitabie trust registered as public trust bearing registration No.222, dated 21—11-1995 and the trust is running a public school by forming a society knOWn as “Bhootnath Dey Charitable Society” (for short ‘the Society’) in Dey Bhawan, Budhapara, Raipur. According to the plaintiff, some expansion in the school building was made under the approved plan sanctioned by the Municipal Corporation, however, the construction is incomplete, as the suit shop and other shops are required bonafldehr for completing the construction for furtherance of the educational activities. It was stated that since the plaintiff is a registered public trust, the suit is filed under Section 20 of the Act of 1961 read with Section 106 of the Transfer of Property Act (for short ‘the TP Act’) and that lease was terminated by a quit notice dated 1-6—1996 made effective at the end of month i.e. 30‘“ June, 1996‘ However, the defendants failed to deliver vacant possession in spite of service of quit notice and their possession is that of trespasser. The plaintiff prayed for damages at the rate of Rs.20/- per day from 1-7-1996 as also arrears of rent of Rs.1,500/— from April to June, 1996. By making an amendment in the plaint, the plaintiff also pleaded that because of the defendants’ failure to pay rent from the month of April, 1996 onwards including the period during pendency of the suit, they are also liable to be evicted under Section 20(b) of the Act of 1961 , as they have acted in contravention of the terms under which they were authorized to occupy the suit premises. 7. ln their common written statement, defendants No.2 and 3 pleaded that \4ey are tenants of Ava Bose on a monthly rent of Rs.500/~,.however, they denied mat Ava Bose has donated the suit shop to the plaintiff and further that the trust has been created with-the object of evicting the defendants. They denied that they were ever intimated about the donation or change in ownership of the property. The piaintift’s plea of attornment by the defendants was also denied and thus, it is stated that they continue to be tenant of Smt. Ava Bose. The defendants also denied that the plaintiff is running a school or that they have formed a society‘ According to the defendants, Ava Bose has engineered a suit to get the defendants evicted. The plaintiff‘s plea of bonafide need was also denied. . The trial Court found that the piaintiff has proved its bonafide need of the suit premises and that there exists relationship of landlord and tenant between the parties. lt was held by the trial Court that the ’ plaintiff trust is a charitabie trust and is in need of the premises to expand the school building and has no other reasonably suitable accommodation to satisfy the said need. These hndings were recorded in Civil Suit No.53-A/2002. . . In Civil Suit No.54-A/2002, the trial Court held that the suit is maintainable for arrears of rent for the month of June, 1996 onwards and that the plaintiff‘s plea of receiving the property in donation/gift from Smt. Ava Bose has been proved. lt was also found that the notice for arrears of rent and quit notice were served on the defendants. 10. The hnding recorded and the judgment and decree passed by the trial /Court has been affirmed by the first Appellate Court. 11.Shri B.P. Sharma, learned counsel appearing‘on behalf of the appellant argued that the suit shop was earlier transferred to Bharat Sewashram Sangh, Calcutta, therefore, the said Sangh is the owner of the property and the present suit is not malntalnable. lt was also argued that the appellant can challenge derivative title and that a public trust cannot me a suit under Section 12 or 20 of the Act of 1961. 12.The appellant has also filed an application under Order 6 Rule 17 of the CPC for amendment in the written statement. In the said application (LA. No.3), it has been stated that written statement was tiled on 20-2-1997 and the certmed copy of the deed of revocation (Ex.- D/3) was obtained in August. 2000, however, since by that time the matter was already fixed for evidence and the statement of Smt. Ava Bose was already recorded, the proposed pleading could not be made. The appellants want to incorporate amendment as paragraph-2A in the written statement to the effect that the suit shop was transferred to one Bharat Sewashram Sangh vide trust deed dated 13-3-1989, therefore, all the rights, title and interest of said Smt. Ava Bose stood vested in the Bharat Sewashram Sangh and thus, the present plaintiff is not entitled to me any suit for ejectment. lt has also been pleaded therein that the deed of revocation dated 4-5—1990 has not been executed in a proper manner, as no concurrence of Bharat Sewashram Sangh has been appended and unilateral cancellation is not permissible. Therefore, the said Bharat Sewashram Sangh is the landlord of the appellants/ defendants. The appellants further proposed to plead that «e suit tiled under Section 20 of the Act of 1961 is not maintainabie. 13‘Admittedly, written statement was med in February, 1997 and the cenified copy of deed of revocation was obtained by the appellants in the August, 2000 when the suit was stiil pending in the triai Court, the same having been decided by the trial Court on 26-12-2006, therefore, it is for the appellants to explain as to what prevented them to make suitable amendment in the written statement immediately after August, 2000. On their own saying, the appellants have raised this plea in the Courts below, therefore, it cannot be said that they were not conscious or aware of this deed of revocation. Ordinarily, the parties are not permitted to amend the pleadings at the appellate or second appellate stage unless the proposed pleadings are based on subsequent events and something which is required for the just decision of the case. in view of this fact that the proposed pleadings were well within the knowledge of the appellants, this Court is not inclined to permit the appeilants to amend the written statement at the second appetiate stage. Consequently, l.A. No.3, application under Order 6 Rule 17 of the CPC is rejected. 14. The first limb of argument raised by learned counsel for the appellants is about entitlement of the appellants/tenants to challenge the plaintiff‘s , ownership of the property and for the said defect, the suit being not maintainable. Learned counsel for the appellants argued that a tenant is entitled to challenge derivative title of the landlord and in view of the deed of revocation (Ex.-D/3), the plaintiff is not the owner of the suit . / shop. ln the present case also, the appellants/tenants are trying to challenge 17‘ the ownership of the plaintiff over the suit shop by questioning the legality of the deed of revocation on the ground that the said deed of _//.-m_,m 5Q 15. in the matter of Subhash Chandra Vs. Mohammad Sharif and others‘, it has been he'd that derivative title of the landlord can be challenged. There is no dispute about this Iegai proposition that derivative title of a landlord can be challenged by a tenant, however, at the same time, it is also to be seen that in the garb of challenge to the derivative title of the landiord, a suit for eviction is not converted into a suit for title on behalf of the landlord by making it a dispute of title between the landlord and some other person on whom the tenant confers title. 16. Deaiing with a case between the landlord and the tenant wherein the landlord died during the pendency of the eviction suit and his legal heirs were brought on record on the basis of a will executed by the landlord, the tenant disputed the will and the High Court dismissed the suit holding that legal heirs of the appellant should have led more evidence to prove will. ln the said context, the Hon’ble Supreme Court in the matter of Dashrath Rao Kate Vs. Brij Mohan Srivastavaz, which was also a case under the present Act of 1961, has held in para- 30 of the report thus:- “30. All this is apart from the fact that the tenant in this case could not have challenged the will at all. He was an utter outsider and had no interest in the property as owner. lndeed. from the pleadings and evidence, it is clear that the respondent tenant has not even ventured to claim any rival interest against the appellant-plaintiff." 1 (1990) 1 Supreme Court Cases 252 2 (2010) 1 Supreme Court Cases 277 revacation being unilateral, has not been executed in‘the manner required in law, therefore, the earlier donee i.e‘ Bharat Sewashram Sangh continues to be the owner and landlord and as a consequence, the second trust deed ln favour of the present plaintiff has no‘validity in the eye of law. This Court is afraid, no such pleadings can be raised by a tenant, who is an outsider and not claiming any rival interest against the plaintiff, more so, there was no plea in the written statement to this effect and the appellants' prayer to amend the written statement at the second appellate stage has been rejected. 18. The next argument of learned counsel for the appellants is that the plaintiff, being a registered public trust, cannot me a suit either under Section 12 or under Section 20 of the Act of 1961 and thus the present suit was not maintainable on this count. 19. Admittedly, the plaintiff is a registered public trust having been registered under the CG Public Trust Act, 1951 and the provisions of the Act of 1961 are not‘ applicable with respect to a public trust by virtue of the notihcation dated 7~9-1989 published by the er'Stwhil‘e State of Madhya Pradesh (now Chhattisgarh). however, in the present case, the plaintiff has pleaded in para-10 of the plaint that the suit is also filed under Section 106 of the TP Act. A quit notice (Ex.—P/5) dated 1-64996 was served upon the defendants terminating the tenancy with the end of a month which expires next after 15 days of the receipt of this notice i.e. by 30‘“ June, 1996. lt has been stated in the plaint that cause of action for filing the present suit arose, amongst other dates, on 1—7—1996 when the defendants did not vacate the premises. Postal receipt and acknowledgement of receipt of quit notice by the defendants have been proved vide Ex.-P/6 to Ex.-P/11. No issue was framed by the trial Court with regard to validity or otherwise of the quit notice and both the Courts below have concurrently found that the quit notice was served and thereafter the suit was med The present suit was thus med after service of notice under Section 106 of the TP Act and is maintainable. 20. Both the Courts below have also found that the plaintiff has proved its bonattde need and that in spite of existence of relationship of landlord and tenant, the defendants have not paid rent to the plaintiff from July, 1996 onwards and thus, both the Courts below have decreed the suit for eviction. In an appeal under Section 100 of the CPC, this Court is not required to re-appreciate the evidence and record a different finding with regard to concurrent finding of fact. .As discussed above, the argument regarding plaintiffs title to the suit shop and maintainability of the suit, raised by the appellants has no substance, as the appellants are not entitled to challenge the legality of the deed of revocation (Ex.—D/3) and further since the suit was also med under Section 106 of the TP Act, this Court has not found any substantial question of law within the meaning and parameters of the law laid down by the Hon’ble Supreme Court in the matter of State Bank of India and others vs, S.N. Goyala. 22.ln the result, the aforesaid second appeals fail and are hereby dismissed. Sdl- Prashant Kumar Mishra Barve Judge 3 (2008) 8 SCC 92