Full Judgment Text
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CASE NO.:
Appeal (civil) 2371 of 2007
PETITIONER:
Prabha Arora & Anr
RESPONDENT:
Brij Mohini Anand & Ors
DATE OF JUDGMENT: 31/10/2007
BENCH:
A.K. Mathur & Markandey Katju
JUDGMENT:
J U D G M E N T
MARKANDEY KATJU, J.
1. This appeal has been filed against the judgment dated 09.10.2006
passed by the Uttaranchal High Court in Writ Petition No. 337 of 2004
(M/S). Heard learned counsel for the parties and perused the records.
2. The appellants before us are the tenants of the premises in dispute
while the respondents are the landlords. The landlady filed the petition
under Section 21 (1) (a) of the U.P. Urban Buildings (Regulation of Letting,
Rent and Eviction) Act, 1972. The grounds mentioned in the release
application of the landlady was that she is a retired teacher getting only a
pension of Rs. 538/- per month which is insufficient for her needs. Hence to
augment her income she wants to run tuition/coaching classes in the
premises in question. The said petition was rejected by the Prescribed
Authority, but in appeal the appellate authority (ADJ Dehradun) by his
judgment dated 16.03.2004 reversed the order of the Prescribed Authority
and allowed the release application. The said judgment dated 16.03.2004
has been upheld by the High Court by the impugned judgment dated
09.10.2006. Hence this appeal.
3. It may be mentioned that during the pendency of the appeal before the
appellate authority a Trust was created in respect of the property in question
vide trust deed dated 04.08.2003 (copy of which is annexed as Annexure P-8
to this appeal).
4. Learned counsel for the appellants, Shri Dinesh Dwivedi, submitted
that in view of the aforesaid trust deed dated 04.08.2003 the very purpose for
which eviction was sought of the tenants through the release application has
disappeared. We are in agreement with this submission. The trust deed
nowhere mentions that any income of the Trust will be given to the
petitioner who filed the release application. In fact, Section 51 of the Trust
Act debars a trustee from using the trust property for his own profit.
5. In Kedar Nath Agrawal (dead) & Anr. v. Dhanraji Devi (dead) by
Lrs. & Anr. [2004 (8) SCC 76] this Court held that the court has to consider
the changed circumstances during the pendency of the litigation. This
decision relied on the earlier decision of this Court in Hasmat Rai v.
Raghunath Prasad [1981 (3) SCC 103: AIR 1981 SC 1711] in which it was
observed that where possession is sought for personal requirement, the said
requirement must not only exist on the date of the filing of the petition but
must also subsist till the final decree for an order for eviction is made. If, in
the meantime, events crop up which would show that the landlord\022s
requirement no longer subsists then the action must fail.
6. In Tulsidas Kilachand & Ors. v. Commissioner of Income Tax
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[AIR 1961 SC 1023] it was held that on creation of a Trust the property
passes to the trustees. Hence, in our opinion, rent is now to be paid to the
trustees who will collect it on behalf of the Trust.
7. In M.M. Quasim v. Manohar Lal Sharma & Ors. [1981 (3) SCC
36] this Court held that on transfer of property to a person who is not a party
to the proceedings the suit for eviction will fail.
8. Learned counsel for the respondents, Shri M.N. Krishnamani,
submitted that the petition under Section 21 for eviction was filed on the
ground that the petitioner wanted to do charitable work, and after creation of
the Trust also the purpose remains the same. We do not agree. In the
petition under Section 21 it is stated in paragraph nos. 3 \026 7 of the petition
that the petitioner has a monthly pension of Rs. 538/- only and she wants to
augment her income as it is difficult for her to survive on the meager
pension. Hence she wants to open a tutorial centre in the premises in dispute
to earn some money. The purpose mentioned in the petition under Section
21 was not for doing charitable work. However, after the execution of the
trust deed the premises in dispute now belongs to the Trust. The need
mentioned in the petition under Section 21 has totally disappeared.
9. In this view of the matter, the impugned judgment of the High Court
dated 09.10.2006 and of the appellate authority dated 16.03.2006 can not be
sustained and are set aside.
10. Appeal is allowed, no order as to costs