SBC SECOND APPEAL NO.285/2007 –AMRA RAM V/S RAJ KUMAR GAGODIYA : JUDGMENT DTD. 9.3.2009 1/7 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JODHPUR. S.B. CIVIL SECOND APPEAL NO.285/2007 Amra Ram S/O Sh. Goru Ram versus Sh. Raj Kumar Gadodiya S/o Sh. Ghanshyam Das Gagodiya PRESENT HON'BLE Dr.JUSTICE VINEET KOTHARI Mr.S.L.Jain, for the appellant Mr.B.K.Bhatnagar, for the respondents. DATE OF JUDGMENT : 9th March, 2009. JUDGMENT 1. This second appeal has been filed by the defendant – tenant against the concurrent judgments of two Courts below decreeing the suit for eviction on the ground of personal bonafide necessity of the plaintiff Raj Kumar Gagodiya. The first appellate Court by judgment and decree dtd.5.1.2007 dismissed the defendant's appeal against the judgment and decree of the learned trial Court dated 19.3.1996. The plaintiff filed the suit for eviction of two shops in question given on SBC SECOND APPEAL NO.285/2007 –AMRA RAM V/S RAJ KUMAR GAGODIYA : JUDGMENT DTD. 9.3.2009 2/7 rent of Rs.90/- per month to the defendant situated at Sujangarh dist. Churu on the ground of default in payment of rent since 29.1.1987 and also on the ground that the said shops in question were required for opening a charitable hospital for service to poor people by the Charitable Trust created by the family of the plaintiff. Both the courts below have decreed the suit in favour of the plaintiff and this appeal of the defendant was filed in this Court in which ex parte order was passed by this Court on 11.7.2007 staying execution of the decree till next date of hearing. However, thereafter the original record of the second appeal was not traceable and therefore, upon an application of the plaintiff – respondent allowing the said application on 10.2.2009, namely, S.B. Civil Misc. Application No.83/2008, the record of the present second appeal No.285/2007 was reconstituted with copies of memo of appeal and the impugned judgment and other relevant papers filed before this Court. 2. The only contention raised by the learned counsel for the defendant – appellant Mr. S.L. Jain is that from Ex.1 – trust-deed and Ex.2A resolution dtd.2.4.1990, it was clear that the plaintiff Raj Kumar was no more landlord of the suit premises, but it was SBC SECOND APPEAL NO.285/2007 –AMRA RAM V/S RAJ KUMAR GAGODIYA : JUDGMENT DTD. 9.3.2009 3/7 charitable trust to whom the said suit property had been donated by the said plaintiff Raj Kumar Gagodiya and therefore, only the said Trust after a proper resolution and after complying with the provisions of Rajasthan Public Trust Act could file the present suit. He, therefore, submitted that the Courts below had erred in decreeing the suit in question and present second appeal deserves to be admitted and the possession of the defendant was required to be protected. 3. On the side opposite, Mr. B.K. Bhatnagar, learned counsel for the plaintiff – respondent vehemently submitted that the question of title is not relevant to the rent control and eviction matter and ownership of the shops in question of the plaintiff Raj Kumar Gagodiya has never been denied by the defendant. He also submitted that the learned trial Court had clearly decided issue No.7 in favour of the plaintiff in this regard as the defendant failed to discharge the burden placed upon him for issue No.7 which could establish that the plaintiff was not the owner, but the Public Trust was oswner of the suit property. He further submitted that the charitable Trust created by the family of the plaintiff Raj Kumar intended to run a charitable hospital in the said premises and that was the bonafide need claimed SBC SECOND APPEAL NO.285/2007 –AMRA RAM V/S RAJ KUMAR GAGODIYA : JUDGMENT DTD. 9.3.2009 4/7 by the plaintiff for seeking eviction of the defendant, which had been concurrently adjudged in favour of the plaintiff by the Courts below. He submitted that same are findings of facts based on relevant evidence and said finding being not perverse in any manner do not give rise to any substantial question of law and the present second appeal deserves to be dismissed. He also produced copy of Ex.2A resolution of the Trust dtd.2.4.1990 for perusal by this Court. 4. Having heard the learned counsels and after going through the impugned judgments of two Courts below and Ex.2A - resolution of the Trust, this Court is satisfied that no substantial question of law arises in the present second appeal and the same deserves to be dismissed. 5. The resolution of the Trust Ex.2A dated 2.4.1990 merely stated that the shops in question have been donated by the plaintiff and he is authorized to seek eviction from the tenant and after eviction, the said Trust would start a charitable hospital for large public interest and people of the town. The said resolution on the contrary establishes as otherwise not disputed by the defendant that the plaintiff was the SBC SECOND APPEAL NO.285/2007 –AMRA RAM V/S RAJ KUMAR GAGODIYA : JUDGMENT DTD. 9.3.2009 5/7 owner of the suit premises and was entitled to file the suit in question for eviction being landlord. The said resolution in no manner divests the plaintiff from his ownership right of the suit property and therefore, the argument of the learned counsel for the appellant – defendant that only the said trust could have filed the suit for eviction is misconceived. Both the courts below have decided issue No.7 in this regard against the defendant finding that the defendant failed to adduce any evidence before the learned trial Court. Otherwise, the defendant had not denied the title of the landlord of the suit property. It is also well settled that the question relating to the title of the property is not relevant in the rent control and eviction matter and and the landlord is the one who is receiving the rent or is entitled to receive the said rent from the tenant under the tenancy agreement. Since tenancy is not otherwise disputed and denied by the defendant, the question sought to be raised before this Court by the defendant is without any substance. The finding about the bonafide need of the plaintiff for running a hospital in the suit premises is well established finding of fact based on relevant evidence and does not give rise to any substantial question of law for consideration by this Court under Section 100 C.P.C. SBC SECOND APPEAL NO.285/2007 –AMRA RAM V/S RAJ KUMAR GAGODIYA : JUDGMENT DTD. 9.3.2009 6/7 6. Consequently, this Court finds no force in the present second appeal and the same is accordingly dismissed with costs throughout. 7. The appellant – defendant shall handover the vacant and peaceful possession of the suit premises to the respondent- plaintiff, within a period of two months from today. The appellant – defendant shall also pay arrears of rent and mesne profits, if any, within two months and shall pay further enhanced mesne profit of Rs.500/- per month to them with effect from April, 2009 payable every month before 15th of succeeding month till the actual handing over of the vacant and peaceful possession of the suit property to the respondent - landlord. The decree be made accordingly. If the appellant – defendant fails to handover vacant and peaceful possession of the suit property to the respondent - plaintiff within a period of two months from today as aforesaid or fails to pay mesne profit including the arrears of rent and mesne profit as directed above, the plaintiff – respondent shall not only be entitled to seek execution of the decree in normal course, but the appellant – defendant may also render himself liable for action under the contempt law. SBC SECOND APPEAL NO.285/2007 –AMRA RAM V/S RAJ KUMAR GAGODIYA : JUDGMENT DTD. 9.3.2009 7/7 (Dr.VINEET KOTHARI)J. Item No.85 Ss/-